9354

• UCREFRP Catalog Number: 9354
• Author: Zallen, M.
• Title: Protection of Instream Flows for Endangered Colorado River Fishes in Colorado.
• USFW Year: 1990
• USFW - Doc Type: Denver.
• Copyright Material: NO

law, an original appropriation by the state would not
have given the United States the authority to
independently enforce the agreement and the instream
flow protections.
C. Colorado law also provides that such enforcement is
a water matter for a Colorado water court. Since this
raised potential waiver of sovereign immunity problems,
both parties agreed that the lease agreement would
refer to the enforcement matter being adjudicated in a
court of "competent jurisdiction."
d. Other problems arose regarding the other options.
The Board did not have sufficient information to file
for an original appropriation, and concern was
expressed by upstream seniors on the effect of a
downstream junior instream flow right. Additionally,
the 15-mile reach is near the Utah border and there are
few uses in Colorado below the 15-mile reach.
e. One of the issues the FWS has raised relating to
the state's acquisiti::m of water rights for the
protection of endangered fishes has been discussed at
the Board's recent public hearings on how to react to
proposals which would inundate stream segments on which
the Board holds instream flow rights. As stated by the
FWS at the recent hearing, it would be issuing
nonjeopardy biological opinions in reliance on the
Board's instream flow protective authorities.
f. Since this was the first time the Board had agreed
to protect waters in a stream through a lease agreement
rather than an original appropriation for an instream
flow right, the lease agreement describes the Board's
and the state engineer's authorities in this regard.
The Attorney General's office signed and concurred in
the agreement.
g. The lease with the Board complements an August 1989
agreement among the United States, the Grand Valley
Water Users Association, and the Orchard Mesa
Irrigation District which provides for the delivery of
the Ruedi releases to the Grand Valley Power Plant.
The power plant is at the beginning of the 15-mile
reach, and under the agreement, the power plant is to
release the water to the 15-mile reach. When Ruedi
water was released to the power plant during the summer
of 1989, the water was legally protected under Colorado
law to the downstream contractor at the head of the 15-
wile reach. The FWS requested flows during the summer
of 1989 to alleviate low flow conditions and since the
Ruedi releases were not diverted in the 15-mile reach,
8