Hot Topic: Recovery Implementation Program for Endangered Fish Species

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Water Conservation Board's determinations of what flows are necessary and reasonable for fish recovery. . • We have engaged in an equally protracted debate over the scope of Colorado's instream flow law, its administrative procedures, its standards for judicial review, its limits under interstate compacts, and its applicability to conditional water rights. A set of filings for instream flow water rights were made in late 1995 by the Colorado Water Conservation Board for the 15 Mile Reach and the lower Yampa River. These filings were designed to accommodate full compact development, and may be the minimum possible legal protection for endangered fish recovery under state law, but are now strongly resisted by numerous water users. The schedule for making similar filings on other river reaches in Colorado has been repeatedly extended. The filings for "recovery flow " water rights in Colorado have drawn the most fire. If decreed, these instream flow water rights would not recover the fish by themselves. They were only named recovery flow water rights to distinguish them from the filings for base flow water rights and because they were tied to a legal framework for delisting the endangered fish. The recovery flow water rights were crafted to address the two intractable uncertainties about how much water the fish would ultimately need and how water development would ultimately occur under the Upper Colorado River Basin Compact. Instead of hypothetically presuming eventual and irreconcilable conflict, these water rights presumed that the current and the next reasonably foreseeable increments of water development would not preclude fish recovery. These water rights would also enable the consideration of any opportunities for reconciling compact development and fish recovery in how those increments and full compact development were distributed seasonally or across subbasins. If there were two water projects that could be developed under the compact, but one would preclude endangered fish recovery and the other would not, the theory is that the Colorado Water Conservation Board has the authority not to modify the recovery flow right for the project that would preclude fish recovery. The Board could also decide not to modify the recovery flow water right for a water project that would both preclude fish recovery but also greatly limit compact development, like a large hydropower project near the state line. I view such recovery flow water rights as minimal protection. They are junior, modifiable, and could still be overridden by the interstate compact on water development. They are initially subject to substantial water development carveouts. The base flow filings are less than minimal for endangered fish recovery because they do not attempt to protect any peak flows. They only protect against stream dewatering under even more junior water rights, and put a low floor under the recovery flow rights, which protect peak flows conversely with checkpoints on total depletions and maybe by shaping the seasonal pattern of junior water development. Such minimal instream flow protection, and its attempted accommodation of the federal and state interests, appears to me headed for rejection. Colorado water law is being not invoked to avoid n