BOARD00150

• Board Meeting Date: 3/20/2000
• Description: ISF Section - Proposal for Injury with Mitigation - Case No. 3-99CW034, Nearburg
• Board Meetings - Doc Type: Memo

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STATE OF COLORADO

Colorado Water Conservation Board

Department o/Natural Resources
1313 Sherman Street, Room 721
Denver, Colorado 80203
Phone' [phone]
FAX: [phone]

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TO:

CWCB Members

Bill Owens
Governor

FROM:

Dan Merriman
Greg Espegren
Ted Kowalski

Greg E. Walcher
Executive Director

Peter H. Evans
ewes Director

DATE:

March 13, 2000

Dan McAuliffe
Deputy Director

SUBJECT: Agenda Item 16, March 20-21, 2000, Board Meeting--
Stream and Lake Protection - Proposal for Injury with Mitigation
Case No. 3-99CW034; Nearburg

Background
. The Board ratified the Statement of Opposition filed in this case at its November 1999, meeting,
This is an application for approval of plan for augmentation on Trout Creek near Creede in
Mineral County (see attached map). Applicant proposes to augment out-of-priority diversions
into Caster Ditch and Caster Pond to "create fisheries habitat in Caster Ditch and Caster Pond,"

The Board holds an instream flow decree for 35 cfs,'summer, and 15 cfs, winter, on Trout Creek
with an appropriation date of August 16, 1982, which could be injured by this application.

The CWCB staff has met with the Applicant's engineer and attorney to discuss resolution of this
case. Pursuant to Section 9.41 of the CWCB's Rules and Regulations, staff proposed a stipulated
settlement that would provide full protection to the Board's Trout Creek instream flow water
rights, Staffs proposal would require that out-of-priority diversions be (1) replaced from a
source located at or upstream of the Trout Creek No, 3 headgate or (2) curtailed at any time the
Board's Trout Creek instream flow is not being satisfied. Applicant is in the process of
purchasing augmentation water from San Luis Valley Water Conservancy District that would
satisfy other downstream seniors, but that augmentation supply is not adequate to replace
depletions to the instream flow. Therefore, staff s proposal would most likely result in
significant curtailment of the Applicant's water rights.

Pursuant to Rule 9.43 of the CWCB's Rules and Regulations, Applicant has elected to approach
the CWCB with a proposal for Iniury Acceoted with Mitigation. The proposal consists of four
documents that the Applicant has distributed to the CWCB members under a separate mailing.
The four documents are: .
I. A letter from the Applicant, Charles Nearburg, to the CWCB explaining his request,
2. A "Proposal for Pretrial Resolution Involving Injury with Mitigation Pursuant to Rule
9.43 Application of Charles Nearburg, Case No, 99CW34, Division 3"