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<br />,,;. <br /> <br />- 2- <br /> <br />Applicant has explained that they would need to augment 100% of their diversions. Moreover, in <br />order to provide 100% protection to the Board's water right on the Slate River, the owners of these <br />units would have to purchase enough augmentation water to cover 365 days worth of depletions <br />even though the most number of days that the Board's instream flow water right on the Slate River <br />was not been satisfied was 104 days, in 2002. On average, the Board's instream flow water rights in <br />the Slate River are not satisfied for 47 days per year. The Applicant's proposal seeks to cap the <br />number of days that the owners of these units would have to augment injurious depletions to the <br />Board's instream flow water rights at 79 days per year. <br /> <br />At the May 2004 Board meeting, the Board acted on the Staff recommendation and took the <br />following actions: I) made the preliminary determination that "the natural environment could be <br />preserved to a reasonable degree with the proposed injury or interference if applicant provided <br />mitigation," and 2) encouraged the Applicant to work with the CWCB staff, the Division Engineer, <br />and the local community to address any outstanding issues before the Applicant brings a final <br />proposal to the Board. <br /> <br />Pursuant to Rule 9.43, Injury Accepted with Mitigation is a two-meeting process. This would be the <br />second meeting in this process. <br /> <br />Staff's Analvsis of the Current Proposal <br />You may recall that the Staffs recommendation at the May 2004 Board meeting included a <br />recommendation that the Board require the Applicant to continue to operate and maintain the <br />existing gage on the Slate River as a form of mitigation for the injury that the Board would be . <br />accepting under the proposal. The Board supported this concept. Based on the Staffs <br />recommendation and the Board's comments at the May Board meeting, the Board Staff met with the <br />Applicant's attorney and requested that a number of terms and conditions be included in the <br />proposed decree to assure that the iI1iury that the Board would be accepting would be limited to the <br />injury described in the Applicant's previously submitted injury with mitigation proposal. The <br />Applicant's attorney has consented to these requests. The Applicant's attorney has also agreed that <br />any slug releases from the wintertime mitigation pool could occur at times other than the late fall and <br />early winter, based on when the Board sought to have the releases made. In addition, the <br />Applicant's attorney indicated that he would discuss the operation and maintenance of the existing <br />Slate River gage with his Board. <br /> <br />Based on that discussion, the Applicant's attorney has submitted the attached amendment to the <br />Applicant's proposal for injury accepted with mitigation. See the attached letter from John McClow. <br /> <br />By including a term and condition that the Applicant will, as a term and condition of its decree, <br />operate and maintain the Slate River Near Crested Butte gage, the Applicant has provided some real <br />mitigation. As such, the benefits associated with the injury with mitigation language in the decree <br />may only occur as long as this gage is continuing to be operated and maintained by the Applicant. <br /> <br />Staff Recommendation <br />As stated above, injury with mitigation is a two-meeting process. At the first meeting, the Board <br />conducted a preliminary review of the pretrial resolution and determined that the natural <br />environment could be preserved to a reasonable degree with the proposed injury or interference if . <br />applicant provided mitigation. At this meeting, the Board may "take final action to ratify, refuse to <br /> <br />Flood Protection - Water Project Planning and Finance. Stream and Lake Protection <br />Water Supply Protection' Conservation Planning <br />