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. . Memo to Colorado Water Conservation Board Members From: Peter Evans and Gene Jencsok Date: October 17,1995 SUBJECT: Agenda Item 2, October 20, 1995 Board Meeting Endangered Fish Recovery ISF Water Right - Colorado River (Mainstem) Page 6 within Colorado. However, the CWCB concluded that action to protect the essential elements of habitat necessary to recover the endangered fishes should not be delayed, since further delay would impair our opportunities to implement the Recovery Program and to avoid substantial regulatory confrontation and litigation. In consultation with the Attorney General, the CWCB concluded that its statutory authority to appropriate and protect instrearn flows "to preserve the natural environment to a reasonable degree" is sufficient to include these efforts to preserve the aquatic habitat arid flows needed for recovery of the endangered fishes. The CWCB also concluded that, while there is uncertainty concerning the magnitude and frequency of the necessary flows, there is a considerable body of information which may provide an adequate basis for the appropriation of instream flows in the context of its interim strategy. The CWeB indicated that the FWS flow recommendations would be used as a starting point in detennining the size and structure of its fish recovery instream flow water rights, but that,the adequacy of the available infonnation must be determined by the CWCB in addressing each specific instrearn flow appropriation. However. the ability of the CWCB to modify the fish recovery instream flow water rights in the future to reflect water supply needs. interstate coronact considerations. and better understanding of the recoverv needs of the endangered fishes was an essential element in this interim strategy, and an important institutional breakthrough. The recent ruling of the Colorado Supreme Court in the Snowmass Creek case has raised concerns that the CWCB' s authority and method for modifying instrearn flow water rights should be specified by the state legislature. These questions will require careful examination (and possible statutory resolution), The CWCB's Statement of Policy and Procedure outlined a procedure for the appropriation of instream flow water rights needed to recover the endangered fishes, but it clearly characterized that procedure as an infonnal guideline to be implemented subject to Colorado law and the CWCB's instream flow rules. -The Statement ofPoliey and Procedure next indicates that the CWCB will complete a hydrologic assessment, and that the CWCB may appropriatc less than the biologically based flow recommendation to the extent that those recommendations exceed the amount of water physically available in the stream segment and to the extent necessary to avoid near-tenn conflicts with reasonably foreseeable development. The CWCB indicatcd it would determine the quantity of the water to be appropriated based upon these considerations, In preparing these recommendations, we havc carefully followed the procedure outlined in the 1994 Statement of Policy and Procedure. Compact Development Proiection Workgroup Recommendations, The interim strategy called for the establislunent ofan estimated "development projection" for each of the major sub- basins of the Colorado River within the state of Colorado based upon a) the best available hydrology and conswnptive use data, b) the interstate compacts, c) generous, long-tenn