7857 - Laserfiche WebLink

Home Browse Search

its solicitor that these opinions still had to guard against large new depletions until there was reasonable assurance that the requisite instream flows would be protected. The FWS then made a judgement that new water projects that would deplete generally more than 3,000 acre feet per year on average would only be assured of non-jeopardy opinions if the FWS determined that "the progress to legally protect the instream flow needs of the endangered fishes has been sufficient to offset the impacts of the proposed [water] project". The FWS took this position in its February 1990 biological opinion on the Muddy Creek reservoir which would deplete about 7,700 acre feet per year from the upper reaches of the Colorado.River. The FWS found that progress on flow protection under the Upper Basin Program up to that date had been insufficient to offset the depletion impacts of this project and conditioned its biological opinion on the set aside of 3,000 acre feet of the project's non-firm yield for the listed fishes in the Colorado River just above its confluence with the Gunnison. In issuing this biological opinion, the FWS broadened its criteria for making "sufficient progress" determinations to consider progress on other recovery elements besides flow protection and in drainages besides the one in which the depletion impacts would occur. Upper Basin water projects authorized under federal reclamation law (e.g., the Flaming Gorge and Aspinall Units of the Colorado River Storage Project (CRSP)., and participating projects in the CRSP like the Central Utah, Dallas and Dolores, and Seedskadee projects) were treated differently. These projects were exempted from the depletion charge because the BOR had agreed to fund at least $1.5 million each year of the program's annual cost (it's now up to almost $2 million each year) and had committed to re-operate federal reclamation projects to provide instream flows for the listed fishes. Soon after the Muddy Creek opinion was finalized, the FWS questioned whether non-federal, historic water projects (already depleting as of 1988) should be exempted from both the depletion charge and any sufficient progress determinations. Two years of negotiations over that issue culminated in the consolidation and reform of FWS consultation policy for the Upper Basin in the Section 7 Agreement. This Agreement was conditioned on the development and approval of a more detailed and definite plan for flow protection and all other recovery actions -- the Recovery Implementation Program Recovery Action Plan or RIPRAP. The initial RIPRAP was put in effect about 6 months after the Section 7 Agreement was reached. Under this agreement, the FWS will judge whether the progress towards recovery as measured by the RIPRAP is keeping pace with the depletion impacts of water projects. The larger the depletion or the longer it takes to quantify and legally protect the instream flows needed for recovery, the bigger the risk that those flows cannot be protected or replaced under even the RIPRAP, and that the Upper Basin Program will not be able to serve as the reasonable and prudent alternative in consultations on upstream, non-federal water projects. The agreement addresses this risk by allowing the FWS to condition biological opinions for larger depletions on the timely completion of flow protection or other recovery actions specified in the RIPRAP. For smaller depletions, once the flows needed for recovery have been legally protected, or once sufficient other progress towards recovery has been made, the FWS will issue unconditional opinions under the agreement. Program Organization and Funding The Upper Basin Program is organized around several large committees, starting with the Implementation Committee composed of the regional directors for Region 6 of the FWS, the Upper Colorado Region of BOR, and of the Western Area Power Administration; the directors of natural resource or water management agencies for Colorado, Utah, and Wyoming; and conservation group, water user, 12