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<br />10. Termination Provision: <br />Should the CWCB ask the court to include termination provisious in the decree? <br />Staff recommends that the four provisions currently included in the proposed application <br />be retained. There appeared to be consensus on this matter and clear direction not to <br />simply reference the Enforcement Agreement provisions because they could be modified <br />without the consent of all parties. <br />11. Mitil!ation Measures: <br />If the rights result in increased administrative burdens, how do we mitigate these <br />burdens (i.e. install measuring devices or help improve diversion structures)? Staff <br />recommends that the Yampa O&M plan and the Board's Construction Fund be used to <br />help address these issues and nothing on this issue be included in the application. There <br />seemed to be consensus on this approach. <br />12. De Minimus Iniurv: <br />Should the Board apply this standard to both the Base Flow and Recovery Flow <br />consistent with the lustream Flow Program Rules and Regulations? The issue is <br />under investigation. There appears to be consensus that this is not an issue since the <br />Division Engineer will not enforce these rights until they are decreed. There should be <br />plenty of time during water court proceedings to establish augmentation sources. Staff <br />recommends that application of the Board's standard de minimus rule to the Base Flow <br />Water Right should be sufficient and that no application of the de minimus rule to the <br />Recovery Flow Water Right should occur since the Carve Outs will more than cover this. <br />13. Chanl!es and Exchanl!es bv Seniors: <br />How will changes and exchanges be impacted by these rights? The following <br />language was agreed to between water users and environmental interests and staff <br />recommends that this language be included in the proposed application: <br />The decree entered herein will provide that it cannot be used as the basis for the <br />Board to object to future changes of water rights or upstream exchanges of <br />water rights, so long as such changes and exchanges do not cause material <br />injury to the water rights decreed herein. To the extent that such changes or <br />exchanges (a) do not deplete flows in excess of flows available under the "Carve <br />Out" for future development, or (b) do not result in any increase in historical <br />consumptive use, which in the case of changes involving conditional water rights <br />would be determined based on the contemplated draft of such rights at the <br />original point of diversion, there will exist a presumption of no injury. <br /> <br />4 <br />