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

• Description: Yampa Technical Workgroup
• State: CO
• State: UT
• State: WY
• Basin: Yampa/White/Green
• Water Division: 6
• Date: 12/5/1995
• Author: Peter Evans, E. I. Jencsok, CWCB
• Title: Agenda Item 1b: Endangered Fish Instream Water Rights for the Yampa River
• Water Supply Pro - Doc Type: Board Memo

Memo to Colorado Water Conservation Board Members
From Peter Evans and E.I. Jencsok
Date: December 5, 1995
Re: Endangered Fish Instream Water Rights for the Yampa River
Page 8
natural environment and to avoid depriving the people of Colorado of the beneficial
use of waters available under interstate compacts, the Board intends to appropriate a
"Recovery Flow Water Right" only if it is modifiable in the amount determined by
the Board and in accordance with the criteria and procedures determined by the
Board.
E. The Board finds that the appropriation of a "Recovery Flow Water Right" which is
not modifiable in the amount determined by the Board and in accordance with the
criteria and procedures determined by the Board would deprive the people of
Colorado of the beneficial use of waters available under interstate compacts and
would, therefore, violate the Board's statutory fiduciary duty to the people of
Colorado.
F. The Board's intent to appropriate a "Recovery Flow Water Right" is conditional
upon the water right being modifiable in the amounts determined by the Board and in
accordance with the criteria and procedures determined by the Board. In the event of
a final determination by a court of competent jurisdiction that the Board is not
entitled to a modifiable water right in accordance with the terms determined by the
Board, then the Board does not intend to appropriate the instream flow, and the
application shall be deemed withdrawn and any decree entered shall be void.
G. In determining whether to modify the recovery flow, the Board shall base its decision
on (1) whether and to what extent failure to modify would impede Colorado's ability
to beneficially use waters available under interstate compacts and (2) whether and to
what extent modification would preclude conservation and recovery of the listed fish
species. The decree to be entered in this case shall set forth the criteria and
procedure for modifying the recovery flows.
IV. Carve Out
A "Carve Out" for future development of 52,000 acre feet of new consumptive uses will
be protected and distributed on a monthly basis. The "Recovery Flow Water Right" will
not be administered against junior water rights until new development under senior
conditional rights and junior rights exceeds at least 52,000 acre feet of additional
consumptive uses allowed under the Carve Out.
V. Findings of Purpose
The purpose of these appropriations is to preserve the natural environment to a reasonable
degree and to conserve and recover the endangered fish and their critical habitat in the
Yampa River. The Board finds that these appropriations are made pursuant to Section 37-
92- 102(3) and 37- 92- 103(3), (4), and (10), C.R.S. (1990). They are supported by
recommendations from the U.S. Fish and Wildlife Service, and the Colorado Division of
Wildlife and by information contained in the reports referenced above, the Final Notice