Laserfiche WebLink
h Districts su est that the CWCB s ecificall define in its ISF Rules those <br />T e 99 p Y <br />instances that invoke the above three above levels of approval of pre-trial resolutions. <br />Related to this request to define when each level will apply, we encourage the CWCB to <br />specifically define both injury and mitigation as it relates to the ISF Rules. During our <br />meeting, Staff presented their current understanding of injury and mitigation. Specifically, <br />Staff assured the Districts that an applicant would not have to comply with the <br />requirements of the proposed injury with mitigation rule when seeking an augmentation <br />plan that replaced water at or above the point of depletion. Staff also assured the Districts <br />that the replacement of delayed return flows in change cases in a reasonable and <br />appropriate time, place, quality and manner would likewise not triggerthe application of the <br />proposed injury with mitigation rule. Also, the Districts understand mitigation to mean <br />specific remedial actions to improve stream conditions or habitat. To provide guidance to <br />future CWCB members, staff and the public, the CWCB Board should specifically define <br />those terms in the ISF rules. <br />2. During our meeting, the Districts expressed concerns regarding older ISF <br />decrees that did not "segment" reaches within an ISF water right. Many older ISF rights <br />have a single flow rate over the entire reach of the ISF. In some instances, the upper <br />segments above tributary inflows and return flows typically did not flow at the decreed rate <br />at the time the CWCB made the ISF appropriation. During our discussions, the Districts <br />asserted that no injury or a reduced injury may result from out-of-priority depletions in the <br />upper reaches. <br />Staff indicated that the CWCB will not consider such factors unless the applicant <br />modified and segmented the existing ISF appropriation. The Districts propose that the <br />CWCB examine and perhaps modify the proposed rules to allow staff to develop a <br />"compliance point" for measuring and determining the scope of potential injury on a given <br />ISF segment reach. A "compliance point" could avoid the need for a de facto modification <br />and allow staff to internally address potential deficiencies of previous adjudications before <br />an applicant proceeds under the injury with mitigation or modification rules. Given the <br />complexity of this issue, we encourage the CWCB to review ISF Rule 9 regarding <br />modification to allow for the modification of decreed ISF appropriations where <br />segmentation is appropriate. <br />3. The proposed amendments initially require the applicant to provide, in the <br />form of a written report, certain information related to the proposed mitigation to the CWCB <br />Board. The Districts have concerns that the cost to produce such documentation could <br />alone precipitate a chilling effect and prevent the filing water court applications for smaller <br />water users. Moreover, in proceeding before the CWCB, the applicant should not have to <br />disclose confidential engineering information to negotiate with the CWCB. As this <br />disclosure becomes public record, objectors in the water court proceedings could have an <br />unfair advantage to review the applicant's confidential engineering. <br />Given the cost of an additional report and the potential premature disclosure of <br />confidential engineering, more water applications may be set for trial rather than remain <br />before the Water Referee for negotiation between parties. This is because it makes little <br />Comments on Rute 8i <br />Page 2 <br />