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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 4 of 7
Fishery Channel No. 1, and the remaining structures to be constructed abo~~e the point of return
to Trout Creek for the Trout Creek Fishery Channel No. 1. Such structures shall be similar to
those constructed for the impro~~ements described in paragraph 4 abo~~e, and shall generally be
designed to consolidate the braided channels into a single thread, decrease the bankfull channel
width/depth ratio, stabilize the banks, and include boulder structures for stabilization and pool
creation.
8. Evaporation losses and secondary evapotranspiration, if any, associated with
Nearburg's di~~ersion of water into the Trout Creek Structures, including any interception of
ground water tributary to Trout Creek, in accordance with the limitations of this Stipulation shall
not be regarded as injurious to the Board's Trout Creek ISF.
9. In order to administer the terms and conditions of paragraph 6 hereof, Nearburg
agrees to install a gage, with continuous recorder, in Trout Creek (the "Trout Creek Gage")
immediately abo~~e the point of diversion for the "Rankin Inlet," as shown on Exhibit A, and to
calibrate, maintain and replace the gage as may be reasonably required to administer the terms of
this Stipulation. Alternately, if location of the Trout Creek Gage above the Rankin Reser~~oir
Headgate is not feasible, then the Trout Creek Gage may be located at such other location on
Trout Creek to be determined by Nearburg and subject to the reasonable approval of the CWCB
staff. Moreo~~er, Nearburg agrees to install such measuring devices on the Trout Creek
Structures as may be reasonably required by the Di~~ision Engineer to administer the Proposed
Decree.
10. The Stream Habitat Improvement Structures referenced in paragraph 4 above
were designed to be permanent impro~~ements to Trout Creek. Nearburg agrees to undertake its
best efforts to maintain the Stream Habitat Improvement Structures. In the e~~ent that Nearburg
fails to maintain in ser~~iceable condition at least 80% of the Stream Habitat Impro~~ement
Structures and the quality of the habitat is substantially impaired as a result, then Trout Creek
Structures shall not divert in any amount that would reduce the flows in the Trout Creek ISF
reach to less than 35 c.f.s. The CWCB and Nearburg agree that Nearburg shall ha~~e a grace
period of the first 90 day period fully lapsing during the construction season from May 1 to
October 15, after receipt of notice from the CWCB of impaired habitat, to initiate the permitting,
repair, or replacement of washed out or otherwise damaged Stream Habitat Impro~~ement
Structures, and such time thereafter as is needed to diligently complete that work, before the
foregoing condition will apply to Nearburg. The CWCB or the Division of Wildlife ("DOW")
shall have the right, once every two (2) years or following a major flood event, to enter onto the
Trout Creek Ranch premises at their sole risk and expense for the purpose of inspecting the
Stream Habitat Improvement Structures, provided such inspections are scheduled with the Trout
Creek Ranch manager at least ten (10) days in advance, and reasonably conducted, so as not to
interfere with the use and enjoyment of the Trout Creck Ranch by Nearburg and his guests. The
current manager is David Marlin, telephone [phone]. Nearburg may notify the Director of
the CWCB of changes in this contact information.
11. Nearburg agrees to confer with the DOW concerning best management practices
for the Trout Creek Structures and Broadacres Structures to reduce the spread of whirling disease