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Memo to Colorado Water Conservation Board Members From: Peter H. Evans and Eugene 1. Jencsok Date: November 6,1995 Re: Endangered Fish Recovery ISF Right - Modification Criteria & Related Issues Page 5 accomplished and 2) the statutory definition of beneficial use for ISF ("...such minimum flows... as are required to preserve the natural environment to a reasonable degree"), clearly suggest that the modification criteria should enable the CWCB to consider ongoing scientific research concerning the flow-related needs of the endangered fishes and their habitat. There is considerable concern, however, over the potential inclusion of other factors, especially those which could place the CWCB in a position of being able to determine which future projects relying on junior water rights can be developed. The following questions help illustrate these issues: . Should the CWCB consider the extent to which modification is likely to affect fish recovery opportunities? If so, what role should be identified for the CDOW and FWS in this evaluation? . Should the CWCB consider the possibility that modification could provide the basis for additional development which, in turn, could impact the habitat or populations of other aquatic species and increase the likelihood of their receiving federal ESA protection? . Should the CWCB consider the extent to which the requested modification is likely to affect the Recovery Program's ability to provide "reasonable and prudent alternatives" for future ESA Section 7 consultations? Frequently, a project proponent will apply for water rights before applying for the permits which may result in ESA Section 7 consultations concerning that project. This suggests that the CWCB will probably need to address the modification question many months or years before the FWS conducts its Section 7 consultation, making the CWCB's inquiry more complex and potentially controversial. . Should the CWCB consider the extent to which the requested modification is likely to affect completed ESA Section 7 consultations? Completed consultations may have been based upon a variety of assumptions about cumulative impacts of other development, the extent of future modification of the fish recovery lSF rights, etc. . How will the scope and structure of the CWCB' s modification criteria affect the extent to which the Fish and Wildlife Service can rely upon the fish recovery ISF rights to provide "reasonable and prudent alternatives" in future ESA Section 7 consultations? STAFF RECOMMENDATION: Based upon our preliminary discussion of the potential modification criteria and the associated issues, we recommend that the CWCB consider the following approach as a starting point for further discussion: . Modification (to reduce instrearn flows protected and increase consumptive use opportunities) should IlQ1 be automatic; otherwise, there is no point in filing an