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4. Retained jurisdiction. Vail Associates will include in any final decree a retained <br />jurisdiction provision allowing the water court to enforce the provisions of the injury with <br />mitigation stipulation as a water matter. <br />Staff anticipates that the parties will work to refine the above-listed terms and conditions and <br />incorporate them into a stipulation and the resulting water court decree, along with standard <br />protective terms and conditions. <br />Based upon a review of the report prepared by AMEC Earth and Environmental, Inc., the <br />Decision Memo by USFS, and upon staff's and CDOW's discussions with Vail Associates' <br />representatives, it appears that Vail Associates' plan for limiting well operations and making <br />habitat improvements on Two Elk Creek support the conclusion that the natural environment of <br />Two Elk Creek can continue to be preserved to a reasonable degree under the conditions <br />described herein as a result of the mitigation provided by Vail Associates. Staff and the Attorney <br />General's Office have consulted with the Division Engineer on this proposal. The Division <br />Engineer has concluded that this proposal is administrable specifically because, in this particular <br />case, the stipulation will not result in a selective call or subordination because no other junior <br />water rights exist on the subj ect reach of Two Elk Creek. <br />Staff Recommendation <br />As stated above, injury with mitigation is atwo-meeting process. At the first meeting, the Board <br />may "conduct a preliminary review of the pretrial resolution during any regularly scheduled <br />meeting to determine whether the natural environment could be preserved to a reasonable degree <br />with the proposed injury or interference if applicant provided mitigation." At a subsequent <br />meeting, the Board may "take final action to ratify, refuse to ratify or ratify with additional <br />conditions." <br />Prior to this agenda item, the Board will have discussed legal and policy issues related to injury <br />with mitigation case resolutions, including whether Board approval of any such proposals should <br />be postponed until certain issues have been resolved. If the Board decides not to postpone such <br />approvals, Staff recommends that the Board: <br />1. Make the preliminary determination that the natural environment of Two Elk Creek could <br />be preserved to a reasonable degree with the proposed injury if Vail Associates provides <br />the proposed mitigation; and <br />2. Provide comments to Staff on the proposal and identify any issues that Vail Associates <br />and Staff should address before bringing the proposal to the Board for final approval. <br />Attachments <br />6 <br />