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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 7 <br /> <br />associated with the future change of water rights), does the proposed size of either carve out (i.e., <br />the 52,000 acre-foot carve out for the Yampa or the 100,000 acre-foot carve out for the Colorado <br />River mainstem) warrant adjustment? If development under senior conditional decrees is <br />included within the carve outs, should specific provision be made within the modification criteria <br />to protect development which has occurred under junior water rights when those rights would be <br />displaced from the carve out by the senior development? If the carve outs are reserved for <br />development under junior water rights, can the FWS make a reasonable estimate of the protective <br />value of the fish recovery ISF rights in order to determine the extent to which they contribute <br />toward "sufficient progress" and "reasonable and prudent alternatives" in future ESA Section 7 <br />consultations? <br />How Many Decrees? Should the CWCB seek three separate ISF rights for the baseflow, <br />modifiable portion and "non-modifiable portion" in each fish recovery ISF segment? <br />Delaved Enforcement Provision. Can a delayed enforcement provision be included in the <br />Yampa baseflow water right to avoid undue complication in the review of small depletions and <br />selective subordination problems until an appropriate augmentation source can be established? <br />BWass Flows. How can CWCB protect against unintended use of its fish recovery ISF <br />rights by federal permitting agencies to require "bypass flows?" Would "poison pill"provisions <br />in the water court's decree provide adequate assurance? Would "poison pill" requirements in the <br />statutory authorization provide increased assurance? Would the "poison pill" provisions enable <br />one water user to undermine Recovery Program benefits for all the rest? <br />Decision Process. What process should the CWCB follow in considering modification <br />~--- - - - requestS? What notice and consultation provisions should be established? Should the CWCB <br />propose to take all modification decisions back to the water court for approval? Or should <br />CWCB ask the court to approve an administrative process (and criteria) for modification which <br />does not require judicial approval? <br />Periodic Review Provision. Should the CWCB ask the water court to include a periodic <br />review provision in the recovery flow water right decrees to assure closer correlation between the <br />appropriated flows and the results of ongoing scientific research? <br />Termination Provision. Should the CWCB ask the water court to include a termination <br />date (or a set of termination conditions such as those included in the enforcement agreement <br />between the CWCB and the FWS) in the decrees? <br />Amendment oflSF Rules. Will the existing ISF rules require amendment to <br />accommodate any of the modification criteria or the other issues related to the proposed fish <br />recovery ISF rights? <br />Attachments <br />copies: Tom Pitts <br />John Hamill <br />Robert Wigington <br />Jim Martin W,IBOARDMEM\NOV9S12SB.wPD <br />