BOARD01906

• Board Meeting Date: 3/29/1999
• Description: ISF Section - Proposed Injury with Mitigation/Modification - Case No. 5-97CW283, Breckenridge
• Board Meetings - Doc Type: Memo

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Staff also discussed the proposed mitigation plan with Jay Skinner, of the Colorado Division of
Wildlife. Biologically, Mr. Skinner was concerned that the impacts from depletions to a small
creek, like Miners Creek, would be difficult to mitigate by releasing an equal, or lesser, amount
of water to a larger stream, like the Blue River. He also indicated a hydrologic concern that the
mitigation benefit of water released into North Barton Guh;h might be delayed in reaching the
Blue River due to the existence of mine tailings in the intervening reach of stream. Thus, Mr.
Skinner agreed that the benefits to the Blue River might be intangible.

Staff also reviewed the Applicant's "Biological Assessment/Biological Evaluation of the Miners
Creek Ditch Project, Summit County, Colorado" that was provided as supporting documentation
for the mitigation proposal. The Biological Assessment was prepared to support the Applicant's
request for a Special Use Permit from the U.S. Forest Service. Staff expressed its concerns to the
Applicant that some of the information in the Biological Assessment may not be consistent with
the mitigation proposal being presented to the CWCB. For example, the Biological Assessment
states that (emphasis added), "Estimated streamflows at the instream flow measuring point
exceed 1.5 cfs regularly in May through August and occasionally in September, allowing
diversionjrom Diversion Point No.2 only during those times (Helton and Williamsen 1998)."
The suggestion that diversions will be limited to the summer months also appears at other
locations in the report. This seems inconsistent with the proposed mitigation plan that may allow
year-round diversions from Miners Creek.

In conclusion, CWCB and CDOW staffs informed Mr. Porzak that these concerns needed to be
addressed before they could support the current mitigation proposal.

Staff has also received several letters from individuals living on, or near, Miners Creek who are
opposed to the Applicant's proposal (see attachments).

Staff Recommendation
Pursuant to Rule 9.43, Iniury AcceDted with Mitigation is a two-meeting process. At the first
meeting, Rule 9.43(a) states that the Board wiIl "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". If this finding is made, the Board may then "take final action to ratifY,
refuse to ratifY or ratifY with additional conditions" at a subsequent meeting.

Staff recommends that the Board:
1. Determine that the proposed injury to or interference with the Board's Miners Creek
instream flow water right will not be compensated by the mitigation offered to the
Board's Blue River instream flow water right, and
2. Reject the Applicant's proposal for Injury Accepted with Mitigation in Case No.
97CW283.

Attachments
597cw283 _request_1