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Memo to Colorado Water Conservation Board Members From: Peter H. Evans and Eugene I. Jencsok Date: November 6, 1995 Re: Endangered Fish Recovery ISF Right - Modification Criteria & Related [ssucs Page 4 (FWS) acknowledges that the CWCB "may appropriate or acquire instrearn flow water rights all or a portion of which are explicitly subject to modification based on later information needed to resolve scientific uncertainties and uncertainties concerning Colorado's use of its compact entitlement" and that the FWS will be "primarily responsible for developing scientific information." Memorandum of Agreement Between the United States Department of the Interior Fish and Wildlife Service and the Colorado Water conservation Board Concerning the enforcement and Protection of Water and Water Rights, dated September 21,1993, section 4 on page 6. The enforcement agreement does not address modification criteria more specifically, but the Statement of Basis and Purpose adopted with the ISF rules provides the following examples of factors which the CWCB will consider when determining whether the proposed modification is consistent with the goals of the [SF Program: . whether an applicant is seeking modification based on reduced needs of a biotic community caused by habitat improvements done by a third party; . the reason for seeking the modification; . whether the natural environment will be preserved to a reasonable degree following the modification; and . whether a seasonal modification or modification in only parts of the protected ISF reach would be more appropriate than the requested modification. OTHER POTENTIAL MODIFICATION CRITERIA Should the CWCB consider other factors in addition to those related to Colorado's --._- compact apportionment? If so, is it"possible to anticipate and specifY all appropriate factors in the decree? It may be difficult at this point to specifY every factor which the CWCB may want to take into consideration in future modification decisions, but the regulatory, water user, and environmental interests are likely to insist that the modification criteria (as well as the decision process) be established during the adjudication process and stated in the water rights decrees. The CWCB has consistently identified two major uncertainties as the principal basis for developing its "interim strategy" for the appropriation of fish recovery lSF water rights based upon the assumption that part of those rights would be "modifiable:" I) How much water is required to recover the endangered fishes? and 2) Where will the rest of Colorado's compact apportionment be developed? That interim strategy reflects the CWCB' s decision DQ! to wait until these uncertainties can be resolved because "[t]o delay now, despite the uncertainties described above, would impair our opportunities to implement the Recovery Program and to avoid substantial regulatory confrontation and litigation." Statement of Policy and Procedure Regarding the Appropriation of Instream Flows for the Recovery of Endangered Fishes of the Upper Colorado River Basin, March 1994, page 4. The remaining uncertainty with respect to the size and timing of flows needed to recover the endangered fishes combined with I) the oossibility that "recovery needs" may differ from those of preserving healthy, "self-sustaining" populations after "recovery" has been