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The upside-down instream flow water right was entangled in the ESA because the water developers wanted the USFWS to conduct a "programmatic" biological consultation on all existing depletions above the 15-Mile Reach and on substantial blocks of new depletions, and were not willing to rely on the carveouts for this instream flow water right to insulate water development from the ESA. The water developers also did not want senior conditional water rights to be included in the depletion accounting for the upside-down instream flow water right, which may have fatally weakened the instream flow protection in the eyes of the USFWS and the environmental groups. Most stakeholders eventually recognized that a workable biological opinion issued under. federal law was not possible if it was conditioned on the acceptance of an upside-down instream flow water right for the 15-Mile Reach in state water court. The delinking ofthe instream flow water right filings from the federal consultation was a turning point, and a programmatic biological opinion for the 15-Mile Reach was issued about nine months later (Final Biological Opinion for Bureau of Reclamation's Operations and Depletions, Other Depletions, and Funding and Implementation of Recovery Program Actions in the Upper Colorado River Above the Gunnison River, USFWS Region 6, December 20, 1999). The conceptual underpinnings ofthe upside-down instream flow water right forthel5-Mile Reach were carried forward into this opinion, however. The opinion covers two substantial blocks of new depletions that will be adaptively managed, just like the water development carveouts for the upside- down water right would have been. One weakness in the CWCB instream flow filings was that the criteria under which CWCB would adaptively manage the carveouts had not been spelled out. In contrast, the criteria for adaptively managing the depletion increments covered by the programmatic biological opinion got plenty of attention and are fairly well-defined. The most important of these criteria may be endangered fish population indicators. If these indicators signal a significant decline in one of the fish populations as upstream water depletions occur, the programmatic opinion must be re- opened. Moreover, if these indicators do not show a substantial improvement in all of the downstream endangered fish populations, then the second increment of depletions is not automatically covered by the opinion. The opinion avoided the question of whether new depletions developed under senior conditional water rights should be indirectly charged against a water development carveout for an upside-down instream flow water right -- any new depletion will be charged against the water development increments covered by the opinion, regardless of whether it would have been senior or junior to the upside-down water right. As was considered for the upside-down instream flow water right, the depletion accounting will be done in the aggregate every 5 years, and will provide checkpoints for adaptive management, along with the fish population responses. There is a circular perspective on this programmatic opinion. What began as a serious and concerted effort to apply state water law to avoid the regulation of water development under the ESA could be seen as ending with the upside-down protection of instream flows under that federal law . This time the federal regulatory briar patch did not turn out to be so bad. 16