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Mar 20 00 03:13p kassen@trout unlimited 303/440-7933 p.4 , March 21, 2000 MEMORANDUM To: Colorado Wab:r Cooservation Board From: Kelly Custer and David Nickum, Trout Unlimited Be: Nearbnrl elSe - injury with JIlitilatiOD, agenda item 16 . Aflcr visiting Trout Creek Rand! and revic:wing the reports and 5IlIff memorandum on this case, we have two primary comments. First, Mr. Nearburg bas done an admirable job of r-nhAncil'lg aquatic habitat on Trout Creek (and on Caster Ditch). Second, there are some outllUuul;ng issues with the proposal for injury with mitigation that the CWCB must still address before giving final approval to this project - permanency, administratioo, and the specific flows proposed under the staging table (which appear to favor the ditch over the stream). Accordingly, we agree with stafI's recommendation that the Board find that Mr. Nearburg's proposal couldmiti.gate for injury to the Board's right and direct staff to work with him to resolve the remaining issues between now and the next Board meeting. We also enCO\U'llge the Board to further explore questions of historic use, as some degree of year-round diversion in Caster Ditdl may constitute existing uses and practices to which the Board's rights are subject. We have grave misgivings about the concept of injury with mitigation (see 11] memo on agenda item 17), and believe that at best it is a tool that should be used only in rare circumstances. However, the fact that water has historically flowed through Caster Ditch - and arguably would fall under the statutory requirement that the Board's rights are subject to existing uses - makes this a unique case. Based on the documents we have seen, it seems that Mr, Neartlurg bas taken an existing situation in which an undecreed diversion pulled water out from Trout Creek, and has attempted to enhance habitat in both the effected stream and in the ditch itself, These efforts benefit both Caster Ditch and Trout Creek. Habitat improvements, Mr. Nearburg and his contractors have clearly implemented an ambitious, well-designed program for stream habitat improvement on Trout Creek and Caster Ditch. In working to enhance both waterways, we believe Mr. Nearburg worked in good faith to benefit the resource. We hope that the Board can work with him to resolve these water rights issues, so as not to punish a conservation-minded landowner for his efforts to enhance habitat. Habitat impro,'Cments on Castu DitclI, while admirable, do not speak to the Board's core question - whether to accept a package of injury with mitigation for Trout Creek. The relevant question is what is happening to the nattual environment in Trout Creek. We urge the Board to ma;nhI;n its focus on that question. . Impacts on Trout Creek. Diversions through Caster Ditch impact three portions of Trout Creek - segments upstream of the improved reach, the improved reach itself, and the downstream segment. . Upper segment. The Board should carefully investigate the question of historic practices. It may be that given historic diversions through Rankin ditch, that Mr, Nearburg's proposal bas no new impact on this segment of the stream.