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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

55 feet vs. 45 feet. At a flow rate of 15 cfs, Station 3 meets 2 of 3 criteria with average depth equaling 0.60 feet
and average velocity equaling 1.34 feet per second. These findings are significant because, under the current
injury with mitigation proposal, diversions of 1 c.f.s. into the Channels will occur only when the gaged flow in
Trout Creek is above 25 c.f.s. or when 3 of 3 criteria are satisfied in restored riffle locations. When gaged flows
drop below 25 c.f.s., then diversions into the Channels will be limited to 0.5 c.f.s., and diversions will cease
entirely when the gaged flow in Trout Creek is below 15 c.f.s.. As noted above, the restored benefits to the
natural environment extend to over 8500 linear feet of Trout Creek, while the limited impacts from diversions into
the Channels will affect approximately 2700 feet of the ISF reach. Thus, the analysis performed by Wright Water
demonstrates that the stream restoration work performed by Mr. Nearburg in 1998 provided significant benefits to
the natural environment on Trout Creek.
Mr. Nearburg has also agreed to limit his right to the undecreed historical fishery diversions through the 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
decreed ISF amount to minimize the impact on streamflows in Trout Creek. Because these fishery diversions
were occurring on or before August 16, 1982, the date the CWCB appropriated the Trout Creek ISF, the Trout
Creek ISF has to recognize these diversions as being senior under section 37-92-102(3)(b), C.R.S.. In addition,
Surface diversions from Trout Creek into the Channels will be limited to the period from May 1 to October 15,
with no surface diversions occurring during the period from October 16 to April 30.
Mr. Nearburg will commit to maintain the structures and improvements in Trout Creek that provide the mitigation
benefits, and acknowledge that any injurious diversions to the new structures would cease in the event the
mitigation structures and improvements in Trout Creek are not maintained. Mr. Nearburg will also allow access
for CWCB and CDOW staff to inspect the mitigation structures, subject to reasonable limits and provisions for
advance notice. Mr. Nearburg has also agreed to confer with the CDOW concerning best management practices
for the Trout Creek Fishery Channel Nos. 1-5 structures to reduce the potential spread of whirling disease
Recommendation
CDOW staff have visited the site and have met with Charles Nearburg's representatives to discuss this proposal.
Based on the amount of stream habitat improvements completed, the documented increase in the fish biomass and
the low frequency of times when the Board's instream flow amounts could be impacted, the CDOW recommends
the CWCB approve the proposed injury with mitigation plan. The CDOW is forwarding this evaluation of the
plan to the CWCB to meet the State of Colorado's policy "... that the wildlife and their environment are to be
protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the people of this state and its
visitors ..." C.R.S. § 33-1-101 (1). The CDOW Strategic Plan states "Healthy aquatic environments are essential
to maintain healthy and viable fisheries, and critical for self-sustaining populations. The Division desires to
protect and enhance the quality and quantity of aquatic habitats."
If you have any questions regarding this evaluation, please feel free to contact me at (303)-291-7267.
Sincerely,
Mark Uppendahl
Colorado Division of Wildlife
Instream Flow Program Coordinator
Cc: Jay Skinner, CDOW Water Unit Program Manager
John Alves, CDOW Aquatic Biologist
John Tonko, CDOW Southeast Water Rights Specialist