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, the BOR for the purchase of water rights. Starting in 1993, the BOR began charging its nearly $2 million per year funding of annual program projects as a non-reim- bursable expense of the power fund, which means that this expense is no longer borne by the power rate payers and is indirectly taken out of the federal Treasury. The FY 96 budget is a high mark for the Upper Basin Program, but it may not be possible to continue year- to-year appropriations to the FWS and the BOR at this level, and the BOR's authorization for capital projects and its decision to charge annual program funding as a non-reimbursable expense have been questioned. The annual program costs are expected to inflate modestly, while the costs for capital projects like floodplain restoration, hatcheries and grow out ponds, fish pas- sages, and water purchase are uncertain and have been projected to be between $60 and $100 million over the life of the program. Another working group of pro- gram participants has therefore been meeting for the last year to develop federal legislation to stabilize the long-term funding base for the Upper Basin Program. The two main concepts under consideration are to re- direct hydropower revenues by taking out the "lumpi- ness" of the current Congressional formula that apportions such revenues for the development of recla- mation projects in each of the Upper Basin states, or to authorize the charging of both annual and capital costs as non-reimbursable expenses of the Upper Basin power fund. The long-term funding of the San Juan recovery program would also be covered. Major Outstanding Issues 1. Can the Upper Basin habitats including instream flows needed for recovery be more definitely pre- scribed? At what scale should the habitats be pre- scribed? If the habitat needed for recovery can only be prescribed adaptively, what level of regulatory certainty under Section 7 of the ESA is appropriate? What stream reaches or systems in the Upper Basin are the most important habitats for recovery? 2. Can Upper Basin populations of the listed fishes be considered "distinct': and down or de-listed indepen- dently from populations elsewhere in the Colorado River Basin? 3. To what extent should the operation of reclamation projects in the Upper Basin be permanently changed to benefit the listed fishes? 4. Should the stocking of non-native fishes that com- pete with or prey on the listed fishes be continued? If so, how should such stocking be managed? Can the existing populations of such non-native fishes be effec- tively reduced? Does the continued stocking of such non-natives by state or private entities without a nexus to federal action constitute an incidental taking of the listed fishes and necessitate the approval of an HCP under Section 10 of the ESA? 5. Once the appropriate presumptive stocks are banked in refugia, to what extent should populations of listed the fishes be re-introduced or artificiallyaug- mented in the Upper Basin? 6. How should the funding needs of the Upper Basin Program be determined and met over the long term? What regulatory certainty is appropriate even if the program's funding is stabilized? 7. Is the organization of the Upper Basin Program workable and inclusive? 8. Should the Upper Basin Program be expanded to address non-listed, native fishes and water quality? 57