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(Guru II) Dra f t 10/29/91 Appendix A Preliminary List of Potential Impediments to Appropriation, Lease, Acquisition and/or Protection of Instream Flows for Endangered Species This preliminary list of potential impediments is provided in format that reflects the decision processes followed by the Colorado Water Conservation Board. Some potential impediments not fit into this format and are included in a miscellaneous section. The following outline is in four major parts: Substantive Findings, Protection of Water Rights, Process and Miscellaneous. I. $IIBSTANTIVE FINDINGS By the Board Regarding Appropriation, Lease, or Acquisition of Instream Flows a do A) Elements Common to All Instream Flow Appropriations Leases or Acquisitions • Element 1. The Board must make a determination that the flows are the minimum required to preserve the natural environment to a reasonable degree. . With regard to this element, the Board must make determinations regarding 1) use, and 2) quantity. The determination of use is embodied in the words "that the flows are... required to preserve the natural environment." The quantity determination .is embodied. in the words "minimum required.." It appears that "to a reasonable degree" could apply to either use or quantity. Questions regarding potential impediments to providing flows for endangered fish have been raised in terms of both the use and quantity.' determinations, as described below. 4uestions regarding use includes Is the appropriation of instream flows based solely on the need to provide and/or protect habitat needed for recovery of endangered fish within the definition of "flows.:.required to protect the natural environment..,?" Do the findings that a) "to preserve", or b) a "natural. environment" exists, or c) "to a reasonable degree" present • an impediment? 10 .