Hot Topic: Recovery Implementation Program for Endangered Fish Species in the Upper CO River Basin

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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 instream 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 (attached) 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 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. 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. At the outset of the Recovery Program, the protection of instream flows 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 water 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 1