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

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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 9 dated November 15, 1995 and a review of other information presented by staff both in written form and orally. Based upon this information, the Board finds that: A. There is a natural environment that can be preserved to a reasonable degree with the Board's water right, if so granted; B. A natural environment will be preserved to a reasonable degree by the water available for the appropriation; and C. Such natural environment can be preserved to a reasonable degree without material injury to water rights and without depriving the people of Colorado of the beneficial use of waters available under interstate compacts, subject to the conditions included in the application. VI. Common Elements to Both Applications A. The Recovery Program is intended to provide the means of compliance for existing and future water projects with the Endangered Species Act, thereby avoiding the imposition of bypass flows and other regulatory requirements. The adjudication of these water rights will contribute to progress toward the recovery of the listed species. The decrees will include terms and conditions making enforceability of the rights dependent on (1) federal agencies not requiring owners or operators of water projects constructed or having all necessary federal authorizations to take measures that would decrease the water yields of their projects for the benefit of the listed species, with specific language to be developed, and (2) federal agencies not relying on decrees in these cases as the basis for any regulatory bypass flows. B. The amount of water necessary to preserve the natural environment to a reasonable degree is necessarily complex in this particular situation. While considerable scientific information has been gathered, sufficient in the determination of the Board to allow the Board to make this appropriation at this time, there remains some uncertainty as to the amount of water appropriable without depriving the people of the state of Colorado of the beneficial use of these waters available by law and interstate compact under the Colorado River and Upper Colorado River Basin Compacts. Nevertheless, preservation of the natural environment to a reasonable degree requires urgent action at this time in order to allow recovery of the endangered fish species and to avoid any unnecessary level of interference with water development by federal regulation under the Endangered Species Act. The Recovery Program contemplates continued research on the water requirements of the endangered fishes and the Board contemplates further hydrological investigation into the availability of water for beneficial use under the Colorado and Upper Colorado Compacts. The Board has determined that this situation requires the present appropriation of this water right, subject, however, to its possible future modification by subsequent Board action.