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. . . UPPER GUNNISON RIVER WATER CONSERVANCY DISTRICT Mitigation Proposal Page 8 of! 0 pages IV. INJURY AND MITIGATION. The Rules Concerning the Colorado Instream Flow and Natural Lake Level Program permit pretrial resolution of any injury or interference issue pursuant to one of three procedures: (I) No Injury, (2) No InjurylModification, and (3) Injury Accepted with Mitigation. Because the Upper Gunnison District does not propose a modification of any instream flow rights, procedure (2) does not apply. Because there is potential injury to CWCB instream flow rights from existing well depletions described above which may not be prevented by the Upper Gunnison District's plan for augmentation, the District is pursuing procedure (3) in order to obtain pretrial resolution of the injury issue raised by the CWCB Statement of Opposition. Nevertheless, in considering this proposal, the CWCB should take into account that the District's plan creates no injury to instream flow rights, it merely presents the risk that releases of replacement water in the proposed amounts will not completely mitigate existing depletions in every year7 In the absence of the plan, existing injury could only be prevented from continuing by shutting off more than one hundred domestic wells during periods of shortage. The potential injury to CWCB instream flow rights that may occur even if the plan is implemented falls into two categories, winter depletions and depletions by existing wells located in the Slate River drainage serving dwelling units connected to the East River Treatment Plant. The District proposes mitigation for each. A. Winter Denletions. The CWCB instream flow rights in Washington Gulch, Slate River and East River cannot be measured accurately during the Winter months because of ice on the streams. However, the records for the USGS gauge Slate River near Crested Butte' for the period 1994-2003 reflect that the Slate River Winter instream flow right of 12 cfs was short an average of zero days in the month of December, and one day in each of the months of January, February and March for an average shortage during the Winter months of three days. (See Table 2.). Depletions to instream flow water rights occurring during the Winter months cannot presently be replaced by releases from Meridian Lake Reservoir at the time they occur because of icing at and below the outlet works of Meridian Lake Reservoir and because any water released must be passed through Meridian Lake Park Reservoir No. 1. The latter reservoir is normally frozen over in Winter, making it difficult or impossible to pass releases of replacement water through the reservoir. Consequently, injury may result to the CWCB instream flow rights, even if the District's plan is implemented, during the rare periods of shortage occurring in the Winter months. 7 Section IV.B., below, describes the proposed amount of replacement water. 8 This gauge, discussed above at page 2, is the only gauge located on any of the described reaches where instream flows have been appropriated.