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about when and where water development could occur. That group developed a policy on "modifiable" instream flow water rights to be appropriated by the Colorado Water Conservation Board (CWCB). Under Colorado law, the CWCB has the exclusive authority to appropriate instream flow water rights and cannot establish instream water rights that would deprive Colorado of its.water compact entitlements. In structuring these modifiable instream flow water rights, the CWCB first estimated Colorado's total compact entitlement and allocation among subbasins. The allocation among subbasins varied substantially and allowed for some margins of error in the estimate of the total entitlement, but indicated the quantity of flows that would flow across the state line under most scenarios. That quantity would be permanently protected instream for the listed fishes. The difference between this quantity and the flows recommended by the FWS would also be legally protected under a water right appropriated by the CWCB, but that difference could be adjusted by the CWCB on a case-by-case basis as water projects were actually developed or as more research was done on the flow needs of the listed fishes. Another problem was how to express the complexity and variability of the revised FWS flow recommendations as definite water rights that were practical to administer. This problem was addressed by legally describing a level of allowable depletions and then protecting the remaining instream flows for the benefit of the listed fishes. A basic drawback of such converse instream flow rights is that only the "top end" of the flows are protected. The next innovation was to combine this kind of top end flow protection with the conventional protection of baseflows. The allowance for water development under water rights junior to the instream rights would then be sandwiched in between. In December 1995 the CWCB filed water court applications for just such a configuration of instream flow rights. These filings meet a major milestone for the Upper Basin Program, but the real test will be how they hold up to challenge in Colorado's special water courts. In Utah existing flows can be protected for fish recovery under state law without establishing an instream water right. The Utah State Engineer has the authority to determine that it is not in the public interest to issue new water diversion permits that would violate the FWS flow recommendations. The Utah State Engineer adopted such a policy in November 1994 for the Green River from Flaming Gorge Dam to its confluence with the Duchesne River. This policy excepts 20 cfs and does not apply to any permits issued prior to November 1994. The legal protection of the flows needed for recovery against their depletion in Wyoming is an unresolved issue. Reservoir and river operations/senior water rights The Upper Basin Program cannot rely entirely on the protection of existing, undeveloped flows for fish recovery. The reoperation of existing federal water projects under Section 7 of the ESA and the acquisition of senior water rights and storage supplies for the fishes are also important program components. ? The 1992 biological opinion on the operation of Flaming Gorge Reservoir is the most prominent example. This opinion recommended dampening the unnaturally high flow levels in nursery habitat downstream on the Green River in the late summer and fall, and that a five year research program be established to examine what reservoir operations would best stabilize winter flows and approximate more natural spring peaks. A similar research program in preparation for the biological opinion on the operation of the Aspinall Unit reservoirs on the Gunnison River in Colorado is beginning its fourth year. ? Studies are nearing completion for saving and operationally sharing canal seepage and administrative spills in Colorado's Grand Valley. The emerging strategy is for the Upper Basin Program to fund capital improvements that would allow the same deliveries to the Grand Valley farms with lower river diversions. This abatement in some of the most senior diversions on the river 9