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Colorado's interest in negotiating the program has been to assure that, as the largest water <br />facility in the basin and one closest to the habitat, Kingsley bears an appropriate share of <br />the program burdens, and that the Districts which operate the dam continue to be partners <br />in the program as it develops and evolves. <br />The Nebraska Wells In Colorado, all non - exempt wells tributary to the South Platte <br />River must fully augment, or replace, the out -of- priority depletions they cause to <br />downstream senior water rights in Colorado. This has been the law since 1969. On the <br />other hand, Nebraska law does not regulate, or even keep- track of, well development that <br />depletes the Platte River. Some estimate that thousands of irrigation wells that cause <br />significant depletion to the river exist in Nebraska, and thus impact the listed species and <br />their habitat. To date, these wells have not been subject to regulation under the ESA <br />because they are not federally funded or permitted. <br />Colorado has not had an. interest in intruding into the operation of Nebraska law. <br />However, continued unregulated well development in Nebraska that impacts the listed <br />species may increase the burden allocated by the FWS on federally permitted water <br />related activities in Colorado. Moreover, by depleting the river, these wells would divert <br />water Colorado would be making available to the program that is physically and legally <br />in excess of needs in Colorado. Colorado's water management activities related to the <br />program would then lose their effectiveness in contributing to recovery. Therefore, <br />Colorado's interest has been to assure that Colorado water management activities related <br />to the program are adequately protected in Nebraska, and that Nebraska mitigates the <br />effect of new wells on the species. <br />Nebraska v W oy minQ For over 10 years, Nebraska and Wyoming have been engaged in <br />litigation in the US Supreme Court, over whether Wyoming is in compliance with a <br />Supreme Court decree that equitably apportions the use of water in the North Platte River <br />among Nebraska, Wyoming and Colorado. Colorado is a party, although not accused of <br />violating the decree. Nebraska has asserted claims that more water should be delivered to <br />Nebraska to enhance Nebraska's riparian environment on the Platte River. Colorado and <br />Wyoming have been concerned that these claims are a thinly veiled attempt to produce <br />more water to perpetuate unregulated well development in Nebraska. Additionally, <br />Colorado and Wyoming have been concerned that we not enter. into a cooperative <br />program to enhance habitat in Nebraska, and have Nebraska turn around and sue the other <br />states, or assert habitat claims against permittees in Colorado, for the very same habitat. <br />The Target Flows. As part of the ESA consultations it has undertaken on the Kingsley <br />and Colorado permits, the FWS developed an analysis of the flows of water necessary, <br />and the times of the year for such flows, to restore and maintain the habitat in the Central <br />Platte Valley. These flows are referred to by the FWS as "target flows." In its analysis, <br />the FWS has compared desired "target flows" against actual flows that have occurred in <br />the Platte River over the last several decades. On an average basis, at some times of the <br />year the actual river flow is greater than the target flows ( "periods of excess "), and at <br />4 <br />