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

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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 patterning 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 the potential conflict between the federal and state interests, but is being vigorously asserted to block even such minimal flow protection and to aggravate the potential for conflict. The opposition strategy appears to be to reduce the flow protection for the endangered fish under state law from the minimum to nothing. Most recently, the Colorado River Water Conservation District has questioned whether any attempt should be made to match up the depletion accounting for Programmatic Opinion on the 15 Mile Reach with that for the recovery flow right, and has asserted that such minimal flow protection should be completely "delinked" from the water development that will be relieved by that biological opinion. It sounds like the River District does not want to put any stock in a recovery flow right, and wants to make sure that water development is instead independently secure. If that is what the water users now want, we should consider the implications of not being able to apply state law to protect in any meaningful way the flows recommended for endangered fish recovery by the U.S. Fish and Wildlife Service. Here are some of the implications I see: • The Programmatic Opinion would provide the checkpoints on accumulating depletions, and would conversely protect peak flows. While there would not be any water right protection, this opinion could consider all depletions above the 15 Mile Reach, both historic and future, up to full compact development. The build -out of depletions under absolute water rights would not be excluded from the accounting, as they might be under the recovery flow right.