BOARD01277

• Board Meeting Date: 1/27/1999
• Description: ISF Section - Proposed Injury with Mitigation/Modification - Case No. 5-97CW306, EMD LLC et. Al.
• Board Meetings - Doc Type: Memo

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do not result in an expansion of historic diversions or 2oi1sumption, Staffs projJosal also
requires that out-of-priority diversions (i,e" any irriSScct;.ocl seaSO'l d;versio:Js in excecs cE the
historic amounts of the changed senior irrigation rights and all diversions during the non-
irrigation season) be (1) replaced from a source located at or upstream of its new points of
diversion or (2) curtailed at any time the Board's Eagle River instream flow is not being
satisfied, Staff believes that these terms are consistent with previous stipulated settlements,

By the attached letter dated December 14, 1998, Applicants have requested an opportunity to
present the facts of a counterproposal to the Board and request Board approval of the same,
Applicant's letter lists 5 principal factors that they would like the Board to consider with regard
to their request that the Board approve their proposed stipulation, Staff and the Applicant agree
on some, but not all, of the factors presented,

Applicant's counterproposal requires that municipal diversions be made at the most downstream
point of diversion (i,e., the Raw Water Booster Pump) when the Board's Eagle River instream
flow water rights are not being satisfied, This term would increase historic streamflows during
the irrigation season in the reach of the Eagle River between the historic irrigation headgates and
the new, downstream point of diversion, However, Applicant's counterproposal does not restrict
future diversions under the priority of the changed rights to historic diversion amounts and only
requires augmentation of out-of-priority depletions, rather than diversions, at times when the
Board's instream flow is not being satisfied, Applicant's counterproposal could deplete the
Board's instream flow water right within a 320-foot reach of the Eagle River between the Raw
Water Booster Pump and the point of wastewater return (the "affected reach") by the anlount of
the Applicant's wastewater return flows, Pursuant to Rule 9.41, staff could not make a
determination of "No Injury" and approve the Applicant's counterproposal.

On January 13, 1999, staff received a package of information from the Applicant containing
additional legal arguments and engineering studies in support of the Applicant's counterproposal.
In a discussion with the Applicant's attorney it was decided that the information contained in the
packet may be more relevant to future discussions, The packet was not included as an attached
to this memorandum but it is available to the Board upon request.

On January 14, 1999, staff requested that the Applicant provide the Board with a summary of the
alternatives that they have evaluated in determining that their proposal is the most reasonable and
prudent alternative, Applicant's January 19, 1999, response (attached) provides a succinct
summary of the four alternatives that they have considered, Of the four alternatives, staff
believes that Alternative 4 appears to present the best compromise to. address the Applicant's
concerns while continuing to preserve the natural environment to a reasonable degree,

Staff Recommendation
Pursuant to Rule 9.43, Iniurv Accepted with Mitigation is a two-meeting process, At the first
meeting, the Board may "conduct a preliminary review of the pretrial resolution during any
regularly scheduled meeting to determine whether the natural environment could be preserved to
a reasonable degree with the proposed injury or interference if applicant provided mitigation",
At a subsequent meeting, the Board may "take final action to ratify, refuse to ratify or ratify with