Hot Topic: Recovery Implementation Program for Endangered Fish Species

Home Browse Search

0 • Hot Topic: Recovery Implementation Program For Endangered Fish Species In The Upper Colorado River Basin Sub - Topic: Programmatic Biological Opinion For Flow Depletions Above The 15 Mile Reach Of The Colorado River Sub - Sub - Topic: Legal Protection Of Instream Flows Needed For Fish Recovery Lo Robert Wigington The Nature Conservancy, Western Regional Office 2060 Broadway, Suite 230 Boulder, Colorado 80302 For Natural Resources Law Center University of Colorado School of Law Hot Topic Luncheon Series April 29, 1998 I will address just one of the more contentious issues in the still ongoing negotiations over the programmatic biological opinion on flow depletions above the 15 Mile Reach of the'Colorado River -- the legal protection of the instream flows needed for - endangered fish recovery. I will also offer the optimistic view that we can reach an agreement on the Programmatic Opinion very soon, if we are willing to do without one of the original, crucial planks for the whole Recovery Program for endangered fishes in the Upper Colorado River Basin -- that the instreain flows needed to comply with the federal Endangered Species Act, as determined and recommended by the U.S. Fish and Wildlife Service, will be legally protected under state water laws. I. have given you (in the handouts) the expression of this plank in the so- called Blue Book in which the Recovery Program was first officially formulated in late 1987. The idea was to avoid the potential conflict between water development under state sanctioned water rights and interstate compacts and the legal regulation of such water development under the Endangered Species Act. At that time, The Nature Conservancy wanted to help avoid such a conflict and was persuaded that it would be difficult to protect the instream flows needed for endangered fish recovery by federally regulating water depletions project -by- project or by establishing instream flow rights under federal law. Without instream flow water rights, flows that could not be developed because of federal consultations under the Endangered Species Act could just become a windfall for the next project. The water users and the other participants in the Recovery Program all agreed to this approach. The Nature Conservancy then worked hard and consistently for over a decade to support the application of Colorado's instream flow laws to protect the flows recommended by the U.S. Fish Wildlife Service.