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I I I I I I I I I I I I I I I I I I I Because much of the water is consumed by direct-flow water rights, however, there may not be enough water available to satisfy all demands, when demand is high and supply is low, as in late summer. In this case, under Colorado water law, senior water rights would have priority to divert water over junior water rights. A "call" on the river by a holder of a senior water right would require that holders of junior rights upstream from the senior right allow water to bypass their headgates in order to satisfy the senior right. Only after senior rights are satisfied, may junior rights take water from the river. However, honoring senior calls would require the State Engineer to administer the river. To date the lower Yampa River has not been administered, because senior rights have placed no calls on the river, even though some senior rights may have experienced shortages in the past. Also, administration would require a means of measuring and regulating in real time the flow of water into ditches and reservoirs. Moreover, the State Engineer may not enforce a senior call if that senior does not have the means to take all of the water that it needs. 2.1.3. Juniper Project Water Rights Several water development projects were earmarked for future development on the Yampa River based on an inventory completed by U.S. Bureau of Reclamation (USBR) in the late 1940s. The Juniper Reservoir was such a project. The Colorado River Water Conservation District (CRWCD) was granted the conditional water rights for this project in 1954. The Juniper Project has not progressed further than planning stages because of cost and environmental permitting issues. The Juniper Project water rights are believed to be the controlling water rights on the Yampa River due to their early priority date and their location downstream from junior water rights. The original decree for the Juniper Project water rights is Juniper Reservoir (844,000 af), Deadman Bench Canal, and a hydropower plant located approximately 5 miles upstream from Maybell. The Juniper Project water right could potentially consume 862,000 af per year, or 75 percent of the annual yield of the river at the Maybell gage. The CRWCD proposed to use a portion of these rights for instream flow purposes. This would require the Colorado Water Court to grant a change of use for the volume of water to be left in the stream for fish and wildlife. Approximately 40,000 af are diverted annually under water rights junior to the Juniper rights. Many of these junior water rights were diverting water prior to the priority date of the Juniper rights; however, theirs were not decreed until after the Juniper rights. To avoid penalizing the junior water users for not declaring their rights earlier, CRWCD agreed to let them divert up to 65,000 af of water before the CRWCD enforced its senior water rights. However, this concession, in effect, devalued the Juniper rights to the extent they were no better than the most junior rights. 2.2. Endangered Species Act The Endangered Species Act (ESA) was passed in 1973 and directs the federal government to conserve listed species and their critical habitats. It prohibits federal agencies from taking any actions that jeopardize the continued existence of any listed threatened and endangered (T&E) - species. Within the Colorado River Basin, four T&E species have been listed under the ESA: Colorado pikeminnow (formerly Colorado squawfish, Ptychocheilus lucius), humpback chub (Gila cypha), bonytail (Gila elegans) and razorback sucker (Xyrauchen texanus). 5