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_. '-- .-'....., .:. '.'1 .'2;1 Current Status Shortly after the March 2000 Board meeting, staff from the CDOW and the CWCB met with the :." Applicant's engineer to discuss the Board's concerns with the Applicant's original plan for Injury Accepted with Mitigation. The CWCB staff also wrote letters to the Applicant on April 4 and April 20, 2000 (see Attachments 2 and 3) which summarized the outstanding issues staff believed would need to be addressed prior bringing a final proposal back to the Board. Those letters also extended an opportunity for the Applicant to meet with staff to discuss these concerns and outlined the deadlines that the Applicant would need to meet in order to bring a final proposal back to the Board at its May 2000 meeting. Sally Hatcher, the Board's attorney in this case, received an "interim response" to the staff's letters from Erich Schwiesow, the Applicant's attorney, on April 28, 2000 (see Attachment 4). That letter indicated that the Applicant would be presenting an Injury Accepted with Mitigation proposal AND a pre-existing practice analysis at the Board's May 2000 meeting. On May 8, 2000, CWCB and AGO staffs received the Applicant's revised proposal for Injury Accepted with Mitigation (see Attachment 5). The Applicant's current proposal is a hybrid of an injury with mitigation proposal and a proposal that would require the CWCB to recognize certain existing practices. As you know, section 37-92-102(3)(b), C.R.S. provides that: "Any such appropriation [of the CWCB] shall be subject to the present uses or exchanges of water being made by other water users pursuant to appropriation or practices in existence on the date of such appropriation, whether or not previously confirmed by court order or decree." , The proposal states that "diversions into Caster Ditch under the proposed schedule represent . considerably less depletion to Trout Creek than was present under the historical practice." Based on this claim, the Applicant has proposed the following diversion schedule: WINTER 00/1-4/30) Trout Creek at Caster Ditch Measurement Point Allocation ~12c~ 2c~ <12c~ Ic~ S; 6 cfs 0 cfs SUMMER (5/1-9/30) Trout Creek at Caster Ditch Measurement Point Allocation ~ 28 cfs 4 cfs <28c~ 2c~ s;17c~ I c~ S;15c~ Oc~ The Applicant's proposal incorporates a more detailed quantification of their claimed historic, albeit undecreed, practice of diverting water at the headgate into Rankin Reservoir, and then into Caster Ditch, and Lemon Drop Ditch, on a year-round basis. They use the quantification of this historic practice as grounds for allowing diversions to continue into Caster Ditch and Pond at times when the Board's Trout Creek instream flow water right is not being satisfied. The Applicant has provided several signed affidavits from land owners and others individuals, who claim that they are familiar with the historic diversion practices, to substantiate this claim. .