17 ‎(3)‎

• Board Meeting Date: 1/23/2008
• Description: ISF Section - Injury with Mitigation - Case No. 3-99CW34; application of Charles E. Nearburg
• Board Meetings - Doc Type: Memo

Colorado Water Conservation Board
January 7, 2008
Page 2

change of water right for interests in the Rio Grande Ditch No.1 and McIntosh Anoya 1, and a
plan for augmentation, including appropriative rights of exchange, to replace out-of-priority
depletions associated with the fishery habitat structures at the Ranches. .

B. Trout Creek instream flow right. The CWCB has adjudicated a seasonally
adjusted illstream flow ("ISF") right for Trout Creek, a tributary of the Rio Grande, in Case No.
84CW166, District Court, Water Division No.3, in the amount of 35 c.f.s. from May 1 st tbmugh
September 30th, and 15 c.f.s. from October 1 st 11rrough April301h, with an appropriation date of .
August 16, 1982. The reach of this ISF right extends through Mr. Nearburg's Trout Creek
Ranch property, and diversions associated with certain struchrres claimed in Mr. Nearburg's
Application will occur within the ISF reach. The CWCB has filed a statement of opposition to
the Application to protect 111e Trout Creek ISF.

C. Trout Creek stream restoration, As previously noted, Mr. Nearburg has made
significant effOlis to restore and improve the streams passing through his Ranches. Much of 111is
work has focused on Trout Creek through the Trout Creek Ranch propeIiy. Specifically, major
restoration projects were successfully completed in both 1998 and 2001 on Trout Creek. These
projects restored over 8500 linear feet of11le Trout Creek stream chmmel, and involved bank
stabilization, shaping of over-widened and braided chmmels, removal of excess gravel deposits,
installation of 45 rock/boulder cross vane structures for grade control mld to create pools, and
installation of 60 rock vmles and additional woody natural structures for bank protection. Prior
to these restoration efforts, Trout Creek through the Trout Creek Rmlch was typically a wide,
shallow riffle stremn with little or no holding capacity for fish. These restoration eff011s, which
are described in significant detail in 11le May 2007 repOli from Black Creek Hydrology
(submitted to CWCB staff previously mld again with tins letter) and February 2000 rep011s from
Wright Water Engineers (previously provided to CWCB staff), have substantially improved the
hydraulic conditions of the stream mld increased the ability of Trout Creek to protect aquatic
biota mld 111e natural enviromnent wi11llower flows.

D. Caster Ditch. This injury with mitigation proposal is separate from the CWCB's
recogIntion of 1\1r. N em.burg' s Instoric diversion of water from Trout Creek tlrrough the Caster
Ditch for fishery purposes. This use predated the Trout Creek ISF, and is a practice subject to
the provisions of S 37-92-102(3)(b), C.R.S. However, it is imp0l1ant to note 111at Mr. Nem"burg
has agreed to reduce the historic diversion rate 1111'ough 111e Caster Ditch (from 4 c.f.s. down first
to 1 c.f.s, and then to 0.5 c.f.s.) at times when flows in Trout Creek are below the ISF amount in
order to minimize the overall impact of his fishery improvements 011 streamflows in the chmmel
of Trout Creek.

I Thomas and Cheri Richter are the current owners of the subject interests in the McIntosh Arroya and Rio Grande
Ditch No.1, and are co-applicants in the Application with respect to the change claims. Nearburg has a contract
with the Richters to purchase these ditch interests upon entry of a decree pursuant to the Application,