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<br />,\ <br /> <br />Memo to Colorado Water Conservation Board Members <br />From: Peter H. Evans and Eugene 1. Jencsok <br />Date: November 6, 1995 <br />Re: Endangered Fish Recovery ISF Right - Modification Criteria & Related Issues <br />Page 2 <br /> <br />water development to continue in accordance with interstate compacts and federal <br />and state law)? and <br />. Should the modification criteria include any factor(s) other than those related to <br />compact development opportunities? <br />These two aspects are reviewed in the following two sections. <br /> <br />COMPACT-RELATED MODIFICATION CRITERIA <br />Since the CWCB's authority to protect instrearn flows is subject to the statutory <br />limitation (97-92-102(3) C.R.S.) that it cannot "deprive the people of the state of Colorado of the <br />beneficial use of those waters available by law and interstate compact," it seems obvious that a <br />careful inquiry into this "deprivation question" must constitute the first criteria for consideration. <br />However, the following questions illustrate the potential scope of this inquiry and the need to <br />specify a more narrow one: <br />. Should the CWCB consider the extent to which Colorado's compact <br />apportionment could feasibly be developed in other areas (e.g., upstream, <br />downstream, or in other basins)? <br />Should the CWCB consider the extent to which Colorado's compact <br />apportionment could feasibly be developed at other times at the proposed location <br />(e.g., other times of the year or in wetter years)? <br />Should the CWCB consider the extent to which water supplies have already been <br />developed within the subject subbasin (e.g., as a portion of total yield of the <br />subbasin, or as a portion of Colorado's overall compact apportionment)? <br />Should the CWCB consider the extent to which its recovery flow water right, if <br />unmodified, would increase the cost or reduce the yield of future water projects? <br />Should the CWCB consider the extent to which additional water supplies have <br />been developed under senior conditional decrees after the fish recovery ISF rights <br />are appropriated? <br />Should the CWCB consider the extent to which new uses could be accommodated <br />through increased efficiency among existing uses? <br />If development under senior conditional decrees is included within the carve outs <br />(see discussion on page 6, below), should specific provision be made within the <br />modification criteria to protect development which has occurred under junior <br />water rights when those rights would be displaced from the carve out by the senior <br />development? <br />To the extent that recovery of the endangered fishes will require that a certain amount of <br />water be available in the stream at certain times and places within the designated "critical <br />habitat," that water can be either: I) left in the stream and protected within the prior <br />appropriation system against future development, requiring that junior rights "develop around the <br />recovery needs of the fish," QI 2) developed at the times and places which are more convenient <br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />. <br />