AG Opinion

• Year: 2009
• Instream Flow Rules - Doc Type: Post Rulemaking Documents

(I) Stipulations and vrater court decrees that incorporate Injury with Mitigation shall include,
but not be limited to inclusion of, the following terms and conditions:
i. A provision that the proponent will not divert water or take any other action that
would reduce flows in the affected stream or levels in the affected lake below the
decreed ISF or NLL amount until the agreed-upon mitigation measures are in
place and fully operational:
ii. A requirement that the structural components of the mitigation be maintained
permanently:
iii. A provision allowing CWCB or DOW staff access to the property on which
structural components of the mitigation are located to inspect the structures at
certain time intervals. and, if necessary. to perform biological stream or lake
monitoring. This provision shall clearly define the reasonable nature, extent and
timing of such access (i.e, advance notice. dates, times or season of access.
coordination with proponent. and location and routes of access):
iv. A term providing that if the proponent ceases to provide the agreed upon
mitigation (such as removing structural components or failing to maintain them to
a specified level. or ceasing to implement non-structural components), that the
proponent ~~vill not divert water or take any other action that would reduce flows in
the affected stream or levels in the affected lake below the decreed ISF or NLL
amount because the Board vrill no longer accept the injury based upon the
mitigation no longer being in effect -- in such case. if the Board places a call for
the affected ISF or NLL water right. the Board ~^rill notify the Division Engineer
that this provision of the decree now is in effect and that the Board is not
accepting the injury:
`~ A requirement that the proponent install and pay operation and maintenance
costs of (or commit to pay operation and maintenance costs if the CWCB installs)
any measuring devices deemed necessary by the Division Engineer to
administer the terms of the stipulation and decree implementing the Injury with
Mitigation pretrial resolution; and
vi. A term providing that the water court will retain jurisdiction to enforce the terms
and conditions set forth above in subsections (i) - (vi), and any other terms and
conditions specific to the Injury with Mitigation pretrial resolution, as a water
matter.
8j. Authorization to Proceed to Trial.
In the event that a Statement of Opposition filed by the Board is not settled prior to the last regularly
scheduled Board meeting prior to the trial date, Staff shall seek Board authorization to proceed to trial. In
the event that Staff is authorized to proceed to trial, the Board may adjourn to executive session to
discuss settlement parameters with its counsel. Staff is authorized to settle any litigation without Board
ratification if the settlement terms are consistent with instructions given by the Board to its counsel.
8k. Public Review Process.
The Board shall follow the public review process in Rules 11 a. - 11 c. prior to consideration of a request to
ratify a pretrial resolution pursuant to Rule 8i.(3).
81. Notice.