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Efforts to save four endangered fish, including the razorback sucker, above, have prompted the formation of upper and lower basin multi-party, multi-species recovery plans. Canyon Trust. "It doesn't mean that there'll be no change and no pain. Change is going to come no matter what. ... It's in our best interest as managers and users, it's in everybody's best interest, to work from that point." The foremost topic, however, is the Endangered Species Act (ESA) and efforts to restore populations of four Colorado River fish, the hump- back chub, bony tail chub, razorback sucker and the Colorado squawfish. Coopera- tive efforts are underway to address protection for the four endangered fish. In 1988 the upper basin states and federal officials signed the Upper Basin Recovery Program to implement the ESA. Earlier this year, the lower basin states joined with Interior to develop a comprehensive 50-year basin-wide approach to species conservation on the lower Colorado River. Despite these programs, some believe the real solution is more instream flows - a thorny issue when one con- siders the fact that the river already is oversubscribed. "What rivers need, more than anything else, is water," Moody said. "That's the key. I don't know the present mechanism or the fair way to do it, but some water needs to be allocated to the river. The least painful and the most flexible means of doing so should be the one that we adopt. But that water needs to come from those people - entities - that are currently using the water out of the river." Since the upper basin states have not fully developed their share of the water, any required increase in flows to restore the fish could make it more difficult for them to further develop their water supply. "If you're in a state where the water has not been developed and you're still looking for projects, you are facing a different situation," Jensen said. "While these laws obviously don't 12 purport to do anything to the compact, there may be a de facto reapportion- ment. I think the states, the water districts and the users are doing some innovative things to try to address these issues to allow the use of addi- tional water. But the real question is, in the end, 'Will a state be able to use all of its compact allocation?'" How ESA required flows fit with the other components of the law of the river was a matter of great debate at the May symposium. "Does the law of the river trump the Endangered Species Act or vice versa?" asked Bill Swan, former field solicitor for Interior. Referring to a BLM case in which a right of way predated the ESA, Swan noted that the Ninth Circuit Court in Sierra Club v. Babbitt ruled that the ESA was not meant to be retroactive. "That's a very important decision, and I don't think we have fully analyzed the impact of that decision," he said. Noting that the lower basin's water projects and contracts predate the ESA, Swan said he did not believe a judge would have the authority to order significant changes in water project operations, based on the Sierra Club decision. Based on that argument, endan- gered species demands appear to have greater impacts in the upper basin, which is still awaiting full develop- ment. Another possible party to be affected are American Indian tribes within the basin because they have not fully developed their water or seen promised water projects completed. "The way the ESA has been administered and operates, it essen- tially affects most greatly the realiza- tion of Indian water claims. These claims are legally the most senior in most cases so you have this odd and ironic situation that the senior water right holders suffer the most from efforts to comply with the ESA" Leshy said. "From the standpoint of equity, the tribes have a really good case to make that they're being asked, in effect... to bear the greatest burden in these situations. I'm not sure that that's fair." Western Water