Hot Topic: Recovery Implementation Program for Endangered Fish Species

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• r blocks of depletion so far have been in Utah, but the Programmatic Opinion for the 15 Mile Reach will cover over 1,000,000 acre feet of historic depletions and at least 40,000 acre feet of new depletions. On the other hand, the legal protection of instream flows under state law has been resisted and sketchy. The most significant flow protection may be the federal commitments to regulate flows physically for fish recovery through the operation of the Flaming Gorge and Aspinall Units of the Colorado River Storage Project, to deliver surplus water from Ruedi and Green - Mountain Reservoirs, and to conserve diversions for the Government Highline Canal. After a decade of seeking to apply state water laws, the lowlights could outweigh highlights that I see: The deliveries of up to 10,000 acre feet of water from Ruedi Reservoir and now 5,200 acre feet from the Wolford Mountain Reservoir to support instream flows in the 15 Mile Reach have been legally protected under state law through agreements with the Colorado Water Conservation Board. That works out to an average of 85 cubic feet per second per month of reservoir releases from August through October, which is only about 25% of the average volume of flows needed to the meet the recommendations of the U.S Fish and Wildlife Service for the Reach in those months. • The Utah State Engineer has made an administrative commitment not to approve permits for new diversions on the Green River (down to its confluence with the Duchesne River) that would be inconsistent with the physical regulation of instream flows for fish recovery through the operation of the Flaming Gorge Dam. Two junior instream flow appropriations have been decreed for the 15 Mile Reach. These water rights are limited to return flows of 581 cubic feet per second at the top of the Reach and 300 cubic feet per second near the bottom from July through September. The enforcement of these instream flow rights is subject "poison pills" and is otherwise highly qualified. • The operation of the Orchard Mesa Check has been settled outside of the Recovery Program and diversions for the Government Highline Canal can be further conserved by installing in- canal check dams with Recovery Program funding, but a large percentage of the conserved diversions has yet to be legally protected under state law through the 15 Mile Reach. The Juniper Cross Mountain water rights have not been purchased and converted, and the conversion of conditional water rights to instream flow water rights has been legislatively prohibited almost everywhere else in Colorado. No senior absolute water rights have been purchased for conversion to instream flow protection, largely because of the concern about drying up agricultural lands. • We have spent an enormous amount of time and money in a sometimes bitter and still ongoing debate over the scientific uncertainties in the flow recommendations from the U.S. Fish and Wildlife Service and there has been little deference to the Service's or the Colorado