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• Board Meeting Date: 3/18/2008
• Description: ISF Section - Injury with Mitigation - Case No. 3-99CW34 - Application of Charles Nearburg
• Board Meetings - Doc Type: Memo

Injury With Mitigation Stipulation
Consolidated Case Nos. 04CW9 & 99CW34
Page 3 of 7
and winter holding capacity for fish. Water will be diverted from Trout Creek into the
Structures, and returned to the main stem of Trout Creek, as generally depicted on Exhibit A
attached hereto and incorporated herein. With the exception of a small amount of evaporation
and secondary evapotranspiration loss, the Trout Creek Structures essentially non-consumptive
with nearly all of the diverted water returning to the stream. The length of the Trout Creek
Structures, from point of diversion to the point of return to Trout Creek, varies from 300 to 1200
feet, and diversions into the Trout Creek Structures will cumulatively affect approximately 2700
feet of the Trout Creek ISF reach. Thus, the ratio of restored channel to affected ISF reach
greater than 3:1.
6. In consideration of the substantial habitat improvement that Nearburg has made to
Trout Creek throughout the Trout Creek Ranch, and pursuant to Rule 8.i.(3) of the Rules
Concerning the Colorado Instream Flow and Natural Lake Level Program, Nearburg and the
CWCB agree as follows with respect to diversions for the Trout Creek Structures (from May lyt
to October 15~` of each year):
When the total native flow in
Trout Creek at the gage is
greater than or equal to (cfs): Then surface diversions into
the Trout Creek Structures (in
series) shall not exceed (cfs):
26 1
25.9 0.9
25.8 0.8
25.7 0.7
25.6 0.6
15.5 - 25.5 0.5
15.4 0.4
15.3 0.3
15.2 0.2
15.1 0.1
15 No Diversion
No diversions to the Trout Creek Structures shall be made from October 16~' to April 30~'.
Nearburg's improvements to Trout Creek described in paragraph 5, above, and paragraph 8,
below, will enable the CWCB to continue to preser~~e the natural environment to a reasonable
degree despite injury to the Trout Creek ISF resulting from above diversions by the Trout Creek
Structures.
7. The Trout Creek Fishery Channel No. 1 is located above the reach of
improvements to Trout Creek described in paragraph 4, above. Therefore, Nearburg agrees than
no diversions to the Trout Creek Fishery Channel No. 1 shall occur until Nearburg has
constructed a minimum of three (3) additional pool habitat structures on Trout Creek, the upper-
most such structure to be located within 200 feet of the point of diversion for the Trout Creek