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regulated by large, federal reservoirs, and called for protecting the ecosystem functions of relatively unreg- ulated or undepleted reaches. With this general endorsement and instruction, the FWS revised its flow recommendations once more for two priority reaches - the lower Yampa River and the 15 Mile Reach of the Colorado River (between the major irrigation diver- sions in the Grand Valley and the confluence with the Gunnison River). These revised recommendations still sought the protection of millions of acre feet per year of flow in these downstream reaches, and were still adamantly questioned. At the same time, the program participants from Colorado recognized that there were substantial uncertainties about when and where water development could occur in accordance with state law and interstate water compacts. At this juncture, a group of specialists met for over a year to consider whether Colorado water law and poli- cies could be applied to address the twin uncertainties about what instream flows were needed for fish recov- ery and about when and where water development could occur. That group developed a policy on "modi- fiable" 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 com- pact 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 pro- tected instream for the listed fishes. The difference 52 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 recommenda- tions as definite water rights that were practical to administer. This problem was addressed by legally describing a level of allowable depletions and then pro- tecting 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 com- bine this kind of top end flow protection with the con- ventional 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 appli- cations 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 recov- ery 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 csf 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.