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<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 3 <br /> <br />to human uses and "replaced" through independent activities of the Recovery Program. <br />Several years ago, when the CWCB indicated its preference that the Recovery Program suspend <br />and defer its efforts to purchase and change existing water rights for ISF and fish recovery uses <br />in favor of other available strategies, it changed the Recovery Program's fundamental approach <br />from the second option to the first. <br />The CWCB provided an interpretation of the "deprivation question" when it adopted the <br />ISF rules in November 1993: <br />"While the Board recognizes the importance of its role in preserving the natural <br />environment to a reasonable degree with the ISF rights, the Board must achieve this goal <br />without adversely affecting Colorado's ability to put its various compact entitlements to <br />consumptive beneficial use. .., When evaluating ISF impacts on the ability to put compact <br />and apportioned interstate waters to use, the Board shall consider the impact on all water <br />users within the compact basin or apportioned interstate basin instead of the impacts of <br />the ISF action on any individual water user. An ISF action shall not be deemed to <br />deprive the people of the state of Colorado of the beneficial use of those waters available <br />by law and interstate compact if opportunities remain in other parts of the compact or <br />apportioned interstate basin to develop all of Colorado's remaining entitIement." <br />StatemenJ of Basis and Purpose, page 2. <br />Questions are being debated, however, about the extent to which the CWCB clearly <br />anticipated the size and location of the proposed fish recovery ISF recommendations when this <br />interpretation was adopted, and whether this interpretation and the ISF rules themselves are <br />appropriate to the proposed fish recovery ISF rights. Questions may also be raised about which <br />laws are to be considered when interpreting the phrase "those waters available by law." These <br />questions have not been resolved. <br />The CWCB' s ISF rules include a Section 10 concerning criteria for modification of ISF <br />rights which are also addressed in the Statement of Basis and Purpose (both are attached for your <br />review). Section 10.20 of the rules requires that one of three specified reasons for modification <br />must exist and Section 10.40 indicates that the proposed modification must be "consistent with <br />the goals of the ISF Program." The three specified reasons are: <br />. Section 10.21 Mistake. in which "an error" must be demonstrated "in the <br />calculations upon which the...appropriation was made." <br />. Section 10.22 Excessive Flow. in which the protected ISF rate must be shown to <br />be "in excess of the amount of water necessary to accomplish the purpose of the... <br />ISF right." <br />. Section 10.23 Recovery Implementation or Other Interl10vernrnental A2Teemenl <br />in which it must be shown that "such modification was agreed upon by the Board <br />as part of the Recovery Plan [sic]...or any other agreement between the Board and <br />another governmental entity." <br />The enforcement agreement between the CWCB and the Fish and Wildlife Service <br />