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"' -~ Staff s Analvsis of the Current Proposal Based on the information presented in the current proposal, the Staff has a number of concerns about the proposal: . 1) There is a dispute over the amount, if any, of diversions that occurred through Caster Ditch and Lemon Drop Ditch at the time that the CWCB appropriated its instream flows on Trout Creek in 1982. See the letter from Steve Vandiver, attached as Attachment 6. This information is vital to determine whether "diversions into Caster Ditch under the proposed schedule represent considerably less depletion to Trout Creek than was present under the historical practice", as alleged by the Applicant. The information is also crucial to determine whether the injury is adequately offset by the proposed mitigation. 2) The Applicant's quantification of the historic, undecreed practice refers to flows in the Lemon Drop Ditch and the Caster Ditch which may have also benefited land owners upstream and downstream of the Nearburg property. The Applicant claims that the proposed diversion schedule would result in less depletions to the stream than the historic practice. However, staff cannot ascertain from the current proposal whether the adjacent land owners, who may be affected by the proposed change in the historic, undecreed diversion practice, are in concurrence with the Applicant's proposed operation of Caster and Lemon Drop Ditches. 3) While the CWCB is required, by law, to recognize historic, undecreed diversion practices, the Offices of the State and Division Engineers are not required to recognize such historic undecreed, and unauthorized, diversions. In the absence of an augmentation plan that fully replaces the consumptive use associated with this undecreed diversion practice (including evaporation from Rankin Reservoir), it is very likely that the SEO will curtail diversions at the Trout Creek headgate unless said consumptive use is fully augmented in the future. Consequently, even if the Board was to accept the Applicant's proposal, the Applicant may not be able to effectuate the proposal. 4) The Applicant has failed to adequately address the concerns of the Office of the Division Engineer that: a) the quantification of the historic practice may be inaccurate; b) monitoring of stream flows and administration of the proposed diversion schedule will be difficult, if not impossible, particularly in the winter months; and c) full augmentation of the consumptive uses associated with the future diversion practices will be necessary to avoid curtailment. See Attachment 6. 5) The Applicant has failed to provide a proposal that is continuing in nature. and revocable if the mitigation plan does not continue to preserve the environment to a reasonable degree. 6) The Applicant has failed to address the concerns of the local community. The CWCB Staff received a letter from the Rio Grande Water Conservation District ("RGWCD"), which explains why that the RGWCD voted to object to the CWCB stipulating to the proposed settlement (see Attachment 7). .