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the potential conflict between the federal and state interests, but is being vigorously asserted to <br />block even such minimal flow protection. The opposition strategy appears to be to reduce the <br />flow protection for the endangered fish under state law from the minimum to nothing. Most <br />recently, the Colorado River Water Conservation District has questioned whether any attempt <br />should be made to match up the depletion accounting for Programmatic Opinion on the 15 Mile <br />Reach with that for the recovery flow right, and has asserted that such minimal flow protection <br />should be completely "delinked" from the water development that will be relieved by that <br />biological opinion. It sounds like the River District does not want to put any stock in a recovery <br />flow right, and wants to make sure that water development is instead independently secure. <br />If that is what the water users now want, we should consider the implications of not being able to <br />apply state law to protect in any meaningful way the flows recommended for endangered fish <br />recovery by the U.S. Fish and Wildlife Service. Here are some of the implications I see: <br />• The Programmatic Opinion would provide the checkpoints on accumulating depletions, and <br />would conversely protect peak flows. While there would not be any water right protection, <br />this opinion could consider all depletions above the 15 Mile Reach, both historic and future, <br />up to full compact development. The build -out of depletions under absolute water rights <br />would not be excluded from the accounting, as they might be under the recovery flow right. <br />Instead of criteria and procedures'for modification of the recovery flow right by the Colorado <br />Water Conservation Board, there would be conditions for re- opening the programmatic <br />opinion by the U.S. Fish and Wildlife Service. <br />Without the baseflow water right, there would no risk of an unanticipated low flow pinch that <br />would precipitate augmentation and enforcement questions under state law. But operational <br />targets could be still set and deliveries from federal projects could still be made and legally <br />protected to improve low flows. <br />These implications may not be so dire, if the conditions for re- opening the Programmatic <br />Opinion do not neutralize its checkpoints on total depletions, and if all of the deliveries from <br />federal projects for the - 15 Mile Reach can be legally protected. <br />The most difficult implication for me might be called the delisting conundrum. The <br />Programmatic Opinion can only be operative for so long as the fish are federally listed. If the <br />flows needed for recovery can only be legally protected under the Programmatic Opinion, then <br />technically the fish cannot be delisted. It appears, however, that the water users want the <br />Programmatic Opinion to cover new water development over a very long period of time, through <br />at least the year 2020.. It may also take a long time for the endangered fish to respond to the <br />combination of recovery measures that should all be in place by the year 2005. So, it looks like <br />the Programmatic Opinion will have a very long term and that the question of delisting will have <br />to be deferred while this opinion is in force. <br />5 <br />