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<br />.~ <br />"" <br /> <br />;:. <br /> <br />'."!Iii.. .." <br />.<!fC" <br />~...~. <br /> <br />Staff s evaluation regarding the extent of the injury realized in each of these four distinct stream <br />reaches is dependent upon the Applicant's ability to substantiate and quantify the historic, . <br />unadjudicated diversion practices that were occurring prior to the time of the Board's 1982 . <br />instream flow appropriation, At one extreme, the unadjudicated diversion practice may provide <br />the Applicant with enough water to fullfill his objective, obviating the need for an injury with <br />mitigation plan. At the other extreme, the Applicant may not be able to quantify the <br />unadjudicated practice, in which case the Applicant would be required to mitigate .impacts to <br />e~ch of the four depleted stream reaches identified aboye. <br /> <br />Staff believes that the Applicant's proposed Trout Creek diversion schedule does not provide <br />sufficient protection to the Board's instream flow water rights, and it should be revised. <br /> <br />Lastly, the Applicant's proposal for lnjurv Accepted with Mitigation is founded on the premise <br />that the Board can legally protect a flow less than the amount to which it is currently decreed, <br />This premise has generated a discussion with the State Attorney General's Office regarding <br />whether the Board has that type of legal discretion under the Iniurv Accented with Mitigation <br />Rule since the Snowmass decision and the passage of Senate Bill 64 in 1996. The Board <br />adopted Rule 9.43 prior to the Snowmass decision and the passage of Senate Bill 64. Board <br />members will be receiving a confidential memorandum from the Attorney General's Office, <br />The Attorney General's Office hopes to discuss this issue with the Board, as it relates to the <br />current case, in executive session following this agenda item. <br /> <br />Staff Recommendation . <br />Pursuant to Rule 9.43, Iniury Accepted with Mitigation is a two-meeting process, At the first . <br />meeting, the Board may "conduct a preliminary review of the pretrial resolution during any <br />regularly scheduled meeting to determine whether the natural environment could be preserved to <br />a reasonable degree with the proposed injury or interference if applicant provided mitigation," <br />At a subsequent meeting, the Board may "take final action to ratify, refuse to ratify or ratify with <br />additional conditions." While there are several outstanding issues regarding a final evaluation of <br />the proposal presented by the Applicant, staff believes that, unless it is determined in executive <br />session that the Board cannot legally protect a flow less than the fully decreed amount without <br />going through a modification procedure, the Board can make its "preliminary" determination, <br /> <br />Therefore, staff recommends that the Board: <br /> <br />1) Make the preliminary determination that "the natural environment could be preserved <br />to a reasonable degree with the proposed injury or interference if applicant provided <br />mitigation," and <br />2) Encourage the Applicant to work with the CWCB staff, the Division Engineer, and <br />the local community to address any outstanding issues before the Applicant brings a <br />final proposal to the Board. <br /> <br />Attaclunents <br />399CW034_Nearburg Request for Injury with Mitigation 1st meeting Board Memo <br /> <br />. <br />