Hot Topic: Recovery Implementation Program for Endangered Fish Species

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0 0 One assumption ten years ago was that new water depletions could proceed apace with fish recovery. There was a decreasing likelihood that any new, big water projects would be constructed in the post - reclamation, post -oil shale era of the Upper Basin (outside of the San Juan River subbasin). It was also thought the instream flows needed for fish recovery would be specified and protected on the front -end of the Recovery Program. Instream flow water rights established under state law would control whether new depletions were consistent with fish recovery and would supplant the legal regulation of depletions in biological consultations under the Endangered Species Act before new depletions really started to accumulate. As you can see from the Blue Book excerpts in the handouts, the protection of instream flows under the Recovery Program was not limited to new appropriations of instream flow water rights, which would start out as the most junior on the stream. An expansive mix of strategies was envisioned in which surplus water from federal projects would be delivered for instream use, the operation of federal water projects would be changed to physically regulate instream flows, and senior water rights, both absolute and conditional in Colorado, would be purchased and converted to instream flows.. One of the earlier proposals was to spend $6 million out a $10 million water rights budget on the purchase of the conditional water rights for the massive Juniper -Cross Mountain hydropower project on the lower Yampa River. Under the Recovery Program any such water rights purchases, and all other recovery measures, will be largely funded with federal dollars. Over the last ten years, water users have only contributed about 3% of the total program budget, mostly in the form of a small charge per acre foot of new depletions. All existing depletions were exempted from the charge. While the charge on new depletions has only been escalated for inflation, the Upper Basin states and power users have recently committed to increase significantly their cost sharing in the Recovery Program. The Colorado River Water Conservation District should also be recognized as one water user that has increased it cost burden beyond the payment of the per acre foot depletion charge by committing 5,200 acre feet of average yield from its Wolford Mountain Reservoir to support instream flows in the 15 Mile Reach. Ten years later, the allegation is that Recovery Program overemphasizes the legal protection of instream flows, that other habitat degradations are more limiting than flow depletion and alteration, and that we must fail in addressing these other habitat degradations before we know whether flow protection is needed. My view is that our big river, native fish are in trouble for a host of interdependent reasons that must be addressed concurrently and adaptively. I think that is the core premise of the Recovery Program. Along the way, we need some checkpoints about flow depletions so that we can consider whether the fish can tolerate going beyond these checkpoints, given concurrent efforts to address the other limiting factors. I don't see that as an overemphasis on flow protection. It is also hard for me to see an overemphasis on the legal protection of instream flows under state law, while depletions have proceeded apace. Over the last ten years, almost 700,000 acre feet of depletions in the Upper Colorado River Basin, not counting any in the San Juan River subbasin, have gone through biological review under the Endangered Species Act unabated. The biggest 2