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<br />Memo to Colorado Water Conservation Board Members <br />From: Peter H. Evans and Eugene I. Jencsok <br />Date: November 6, 1995 <br />Re: Endangered Fish Recovery ISF Right - Modification Criteria & Related Issues <br />Page 6 <br /> <br />application for water rights to protect the modifiable portion. <br /> <br />. The CWCB should require a "yes" response to all 4 of the following questions (including <br />either 3a or 3b) to justify modification: <br />. Question # I: is carve out in full use? <br />. Question #2: is there additional development opportunity within Colorado's <br />compact allocation? <br />. Question #3a: are there junior uses which are being displaced from the carve out <br />by the development of senior conditionals? <br />. Question #3b: is further development infeasible (economic and technical <br />evaluation) at other times and in other areas? <br />. Question #4: is recovery feasible if the fish recovery lSF right is modified? <br /> <br />. If the answer is "yes" to first 3 questions and "no" to Question #4, we face a direct <br />conflict within the Recovery Program goal (to recover the endangered fishes while <br />providing for water development to continue in accordance with interstate compacts and <br />federal and state law) and will need to consider a much broader review of the state's <br />commitment. <br /> <br />OTHER ISSUES RELATED TO THE PROPOSED FISH RECOVERY ISF RIGHTS <br />Tbe following summary includes issues identified in previous CWCB meetings and <br />workshops. <br />Modifiability. Can the CWCB assure its intent that a portion of the "recovery flow" <br />water rights will be modifiable will be recognized in the decree of the water court? Wendy <br />Weiss is preparing an opinion for you on this point, and will provide a report at your meeting. <br />Filing Date. Should the CWCB file the proposed water right applications in December <br />1995, as indicated in the Recovery Program's Recovery Action Plan (RIPRAP) schedule, or wait <br />until the Colorado General Assembly considers proposals to clarify the authority and terms under <br />which the CWCB can appropriate fish recovery lSF water rights? <br />Senior Conditionals and the Carve Out. Should future development under senior <br />conditional decrees (senior to the proposed fish recovery ISF rights) be included within the <br />proposed "carve outs," or should those carve outs be designated development under junior water <br />rights only? Tbe carve outs will be associated with the proposed "recovery flow" water rights, <br />and would not constrain the development of senior conditional or absolute decrees. However, <br />the proposed consideration of both seniors and juniors in the carve outs ~ make a big <br />difference in the amount of water available within the carve outs to the junior rights. In addition, <br />it could require modification of the water rights much sooner. If the decision is to reserve the <br />carve outs for development of junior rights (and, presumably, for any additional depletion <br />