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

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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 and 300 cubic feet per second (not cumulative) from July through September. The enforcement of these instream flow rights is 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, 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 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 have made 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 vehemently 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 3