Agenda Item 1b: Endangered Fish Instream Water Rights for the Yampa River

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Should the CWCB propose to take all modifications back to water court or ask the court to approve an administrative process which does not require court approval? l Staff believes we should propose an administrative process and that this process should be negotiated during water court proceedings. 6. Filing Dates Should the Board file in December 1995 or wait until more of the issues described above are resolved? There is clear consensus that the Board should file water right \ a5 5 applications in December, 1995 and staff recommends making the filings within this time frame. 7. o Delayed Enforcement Provisions Can a delayed enforcement provision be included for the Base Flow to avoid complications with small depletions and potential selective subordination issues until appropriate augmentation can be established? There appears to be consensus that this is not necessary since the Division Engineer will not begin administration of these rights until they are decreed and thus there should be plenty of time to arrange for augmentation sources. On the Yampa, the Board has indicated there will be no call for administration until adequate augmentation is available, should this condition be limited to 1 -year? Staff feels there needs to be an incentive for both sides to reach agreement on the Yampa Operation and Management Plan. Staff recommends that given that the Division Engineer will not administer these rights until they are decreed, that there is no reason to further consider this issue since there should be plenty of time to arrange for augmentation sources prior to the decreed entry of these rights. Can delayed enforcement provisions be included in the Recovery Flow to allow the Carve Outs to fully develop? We believe so, staff understands that the mechanism requires further discussion and we recommend that terms and conditions be negotiated during water court proceedings. 8. Bypass Flows Is the language in the proposed application adequate to protect against the l` unintended use of the Base Flow and Recovery Flow rights by federal permitting agencies as the basis for requiring "bypass flows"? Staff recommends the incorporation of language agreed to in the 92CW286 case when it is final to address this issue. 9. Periodic Review Provision Should the CWCB ask the court for a retained jurisdiction provision to assure correlation between appropriated flows, development and fishery research? The Board has indicated a willingness to review the need for modification of these rights whenever there appears to be justification for doing so. There appears to be consensus on this and thus there is no need to address it in the application. There is no apparent interest in a periodic judicial review, although this issue may be raised during water court proceedings. How do we deal with new T &E species, fish passage and changes in stream conditions which may result from habitat improvements? Staff recognizes these are good reasons for periodic review and that there needs to be further discussion. Staff recommends that to the extent necessary, these issues can be addressed further during water court proceedings and do not need to be resolved prior to filing the applications.