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water developers opposing these filings maintained that protecting all of the remaining flows may not benefit endangered fish recovery, and that such beneficial water use had to be conclusively proven in water court without deference to the determinations by the USFWS and CWCB that such flow protection would be beneficial. The upside-down instream flow water right was attacked as unquantified, and not a minimum flow. The adjustable water development carveout was maligned as indefinite and speculative. One counterproposal was that such a water right could only be decreed in Colorado as a conditional or unperfected water right, even though it is unclear under Colorado law whether the CWCB was authorized to appropriate a conditional instream flow water right. If such conditional instream flow rights could be decreed, the USFWS and CWCB . would have had to prove in water court every 6 years that protecting the remaining flows for fish recovery was still beneficial and necessary. Instead of enabling the adaptive management of the potential conflict between water development and endangered fish recovery, the upside-down instream flow water rights and their carveout were also characterized as a state permit system for water development that was offensive to Colorado's doctrine of private appropriation. The USFWS and at least one environmental group raised concems that these instream flow filings might be too accommodating of water development. When these filings encountered such strong opposition from the water developers, the USFWS and the environmental groups withdrew their support for them. Without endorsement from any quarter, the CWCB withdrew these filings in early 1999. Federal Regulation: Postscript on the 15- Mile Reach The filing for the upside-down water right on the IS-Mile Reach of the Colorado River was entangled in a basic issue of how to apply the federal ESA to upstream water depletions, and this entanglement may have been the main pitfall. Beneath this issue lay another: How would the upside-down instream flow water right be enforced? Because the upside-down instream flow water right was to be located below the points of return flow for most upstream diversions, the enforcement approach was not to sum all upstream diversions under junior rights at any moment, but to check the aggregate level of upstream water consumption under junior rights every 5 years. As that aggregate level of junior depletions increased, the water development carveout for the upside-down instream flow water right would be used up. Once the level of junior depletions exceeded the carveout, they would be considered out of priority and the upside-down instream flow water right could be enforced against them. One problem was that a host of senior conditional (unperfected) water rights could be developed upstream. The enforcement issue was whether the water development carveout for the upside-down instream flow water right should be reduced, if and when the senior conditional water rights were developed. If senior conditional water rights were not indirectly included in the depletion accounting for the water development carveout, an unpredictably lower amount of instream flow would be protected by the upside-down instream flow water right. 15