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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

Background
Applicant Charles Nearburg owns two properties near Creede, Colorado in Mineral County,
known as the Trout Creek Ranch and Broadacres Ranch (collectively, the "Ranches"). In Case
No. 3-99CW34, Mr. Nearburg seeks approval of a water supply plan for various fishery habitat
improvement structures, including adjudication of water rights for these structures, a change of
water right, and a plan for augmentation, including appropriative rights of exchange, to replace
out-of-priority evaporative depletions associated with fishery habitat structures at the Ranches.
The Board filed a statement of opposition to this application because the exercise of the proposed
rights could adversely impact the Board's instream flow ("ISF") water rights listed below.
CWCB Case
No. Stream Amount
(cfs) Approp.
Date Watershed County
3-84CW166 Trout Creek 35/15 8/16/82 Rio Grande Mineral
3-84CW159 Shallow Creek 3 8/16/82 Rio Grande Mineral
3-83CW039 Rio Grande River 150/65 8/16/82 Rio Grande Mineral
3-83CW042 Rio Grande River 160/80 8/16/82 Rio Grande Rio Grande & Mineral
(See map attached to this memo). This injury with mitigation proposal only addresses impacts to
the Trout Creek ISF water right. The Trout Creek ISF water right extends through Mr.
Nearburg's Trout Creek Ranch property, and diversions associated with certain structures
claimed in Mr. Nearburg's application will occur within the ISF reach. Impacts to the other ISF
water rights will be addressed separately by protective terms and conditions to be included in the
decree in this case. Additionally, this injury with mitigation proposal is separate from the
CWCB's recognition of Mr. Nearburg's historic diversion of water from Trout Creek through the
Caster Ditch for fishery purposes. Because this use was occurring on or before August 16, 1982,
the date the CWCB appropriated the Trout Creek ISF, the Trout Creek ISF is subject to this use
under section 37-92-102(3)(b), C.R.S. However, it is important to note that Mr. Nearburg has
agreed to reduce the historic diversion rate through the Caster Ditch (from 4 c.f.s. down first to 1
c.£s, and then to 0.5 c.f.s.) at times when flows in Trout Creek are below the decreed ISF amount
to minimize the overall impact of his fishery improvements on streamflows in the channel of
Trout Creek.
Improvements to Trout Creek
Charles Nearburg has made significant efforts to restore and improve Trout Creek, with major
restoration projects successfully completed in 1998 and 2001 on Trout Creek. These projects
restored over 8,500 linear feet of the Trout Creek stream channels, and involved bank
stabilization, shaping of over-widened and braided channels, removal of excess gravel deposits,
installation of 45 rock/boulder cross vane structures for grade control and to create pools, and
installation of 60 rock vanes and additional woody natural structures for bank protection. Prior
to these restoration efforts, Trout Creek through the Trout Creek Ranch was typically a wide,
shallow riffle stream with little or no holding capacity for fish. These restoration efforts appear
to have substantially improved the hydraulic conditions of the stream and increased the ability of
Trout Creek to sustain aquatic biota and the natural environment with lower flows
~ The 8,500 feet includes the reach of Trout Creek that runs through Mr. Nearburg's property and an old braided side
channel of Trout Creek that fills when flows are high.