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<br />-. .... OCT.27.1995 4'57PM HALL PIns R550C <br /> <br />NU.~ ,....:1 <br /> <br />~ <br /> <br />To Gene Jcncsok <br />October 27, 1995 <br />Page 2 <br /> <br />3. The appropriation and protection of instream flows by the CWCB is governed by <br />Section 37-92-102(3) CRS, which provides, in part: <br /> <br />.Nothing in this article shall be construed as authorizing any state agencies... to <br />deprive the people in the State of Colorado the beneficial use of those walen <br />available by law and interstate compact. . <br /> <br />4. The language cited above is echoed in the .Statement of Policy and Procedure <br />Regarding the Appropriation of Instream Flows for the Recovery of Endangered FlShes of <br />the Upper Colorado River Basin. adopted by the Colorado Water Conservation Board on <br />March 9, 1994: <br /> <br />"However, the Board will not claim or seek protection for instream flow <br />water rights which would deprive the people of the State of Colorado the <br />beneficial use of those waters available by law and interstate compact. . <br /> <br />This polley statement also states (p.6 third paragrnph): <br /> <br />"The portion of any fish rr:t;Overy instream flow water right which is not expressly <br />controlled by paragraph 3 of the Enforcement Agreement may be reduced by the <br />CWCB at its sole discretion in accordance with paragraph 4 of the Enforcement <br />Agreement and the ISF (mst:ream flow) rules. . <br /> <br />5. The criteria for modification of instream flows are clear, pursuant to Colorado's <br />instream flow law and the policy statement adopted by the Board, as well as the <br />Enforcement Agreement The flows should be modified downward if <br /> <br />1) the water is available by law, and <br />2) the water is available under interstate compacts. <br /> <br />Otherwise, the Board will be depriving the people of the state of the beneficial use of <br />those waters available by law and interstate compact, contrary to the instream flow law <br />under which the flows are protected. If a party demonstIates that the water is available <br />by law and interstate compact. then the Board should modify the instream flow. These <br />are the only two criteria that should be applierl. <br /> <br />6. The Board cannot place itself in the position of making judgements on whether or not <br />the modification should be made on the basis of economics. environmental impacts, or <br />