7852

• UCREFRP Catalog Number: 7852
• Author: Bolin, J. H.
• Title: Of Razorbacks and Reservoirs
• USFW Year: 1993
• USFW - Doc Type: The Endangered Species Act's Protection of Endangered Colorado River Basin Fish
• Copyright Material: YES

fJEW

[Vol. 11

ion doctrine en-
ter as they could
using it, in order
ential in an arid
hat developed in
historically been
rights of down-
le right to their
nent completely

stress consump-
oductivity in the
.d mining, which
ties of water out
is a maze of tun-
,nable the basin
kilometer than
tates, to provide

ng behind them
,
nd politics have
lstream uses" of
an consumptive
ay from mining
ltion.30 Several.

0' of the Evolution of
1. Public Interest De-

; Cappaert v. United

JRCES ~ 5.08[1], at 5-

I; Charles F. Wilkin-
phy of the Nonlegal

Stream Flow Protec-
tEAM FLOW PROTEC-

Big Sky: Balancing
,ources in Montana
)992).

~

1993]

OF RAZORBACKS AND RESERVOIRS

41

,;

studies have suggested that water left instream for rafters
and tourists to enjoy can offer far greater economic returns
than traditional consumptive uses.31 In addition, as the West
becomes more urbanized,32 cities and industries increasingly
demand a greater share of the water that now goes to senior
agricultural appropriators at heavily subsidized rates.33 The
wave of the future, no pun intended, is to reconsider and in
some cases reallocate western water, a task that implicates
environmental concerns, property rights, urban and regional
planning, and more.
In the thick of the redesign of water law and policy in the
Colorado River Basin, amid the computer models and mar-
ket-based allocation schemes, will be four unglarnorous fish:
the razorback sucker, humpback chub, bonytail chub, and
Colorado squawfish. The river fish are currently protected by
the Endangered Species Act34 (ESA), but have enjoyed far
less than the full protection to which they are entitled under
that statute. Between 1977 and 1981, the United States Fish
and Wildlife Service (FWS) determined that the operation of
every major existing and proposed water project in the basin
jeopardized or would jeopardize the continued existence of
the river fish,35 but it has done little more than study the
problem in the intervening decade, in direct contravention of
the ESA. In 1987 FWS instituted its "Recovery Program for
Endangered Fish Species in the Upper Colorado River Ba-
sin"36 to mitigate the impacts of proposed water depletions on
the river fish.37 Despite the recovery program's pointed fail-
ure to attain even its own modest goals, FWS has not man-

31. See, e.g., Bonnie G. Colby, The Economic Value of Instream Flows -
Can Instream Values Compete in the Market for Water Rights? in INSTREAM
FLOW PROTECTION IN THE WEfIT 87, 91 (1989).
32. See Johnson & DuMars, supra note 24, at 356.
33. George A. Gould, Transfer of Water Rights, 29 NAT. RESOURCES J. 457,
471-73 (1989).
34. 16 V.S.C. ~~ 1531-1544 (1988 & Supp. N 1992).
35. Wydoski & Hamill, supra note 2, at 126.
36. Id. at 128.
37. Id.