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requirements on the operation of the facilities associated with Lake McConaughy and Kingsley <br /> Dam. <br /> 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 the <br /> program burdens, and that the Districts which operate the dam continue to be partners in the <br /> program as it develops and evolves. <br /> The Nebraska Wells. In Colorado, all non-exempt well tributary to the South Platte River must <br /> fully augment, or replace, the out-of—priority depletions they cause to downstream senior <br /> water rights in Colorado. This has been the law since 1969. On the other hand, Nebraska law <br /> does not regulate, or even keep track of,well development that depletes the Platte River. Some <br /> estimate that thousands of irrigation wells that cause significant depletion to the river exist in <br /> Nebraska, and thus impact the listed species and their habitat. To date, these wells have not <br /> been subject to regulation under the ESA because they are not federally funded or permitted. <br /> Colorado has not had an interest in intruding into the operation of Nebraska law. However, <br /> conti.iued unregulated well development in Nebraska that impacts the listed species may <br /> increase the burden allocated by the FWS on federally permitted water related activities in <br /> Colorado. Moreover, by depleting the river, these wells would divert water Colorado would <br /> b2 making available to the program that is physically and legally in excess of needs in <br /> Colorado. Colorado's water management activities related to the program would then lose <br /> their effectiveness in contributing to recovery. Therefore, Colorado's interest has been to <br /> assure that Colorado water management activities related to the program are adequately <br /> protected in Nebraska, and that Nebraska mitigates the effect of new wells on the species. <br /> Nebraska v. Wyoming. For over 10 years, Nebraska and Wyoming have been engaged in <br /> litigation in the U.S. Supreme Court over whether Wyoming is in compliance with a Supreme <br /> Court decree that equitably apportions the use of water in the North Platte River among <br /> Nebraska,Wyoming and Colorado. Colorado is a party, although not accused of,violating the <br /> decree. Nebraska has asserted claims that more water should be delivered to Nebraska to <br /> enhance Nebraska's riparian environment on the Platte River. Colorado and Wyoming have <br /> been concerned that these claims are a thinly-veiled attempt to produce more water to <br /> perpetuate unregulated well development in Nebraska. Additionally, Colorado and Wyoming <br /> have been concerned that we not enter into a cooperative program to enhance habitat in <br /> Nebraska, and have Nebraska turn around and sue the other states, or assert habitat claims <br /> 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 and <br /> Colorado permits, the FWS developed an analysis of the flows of water necessary, and the <br /> times of the year for such flows, to restore and maintain the habitat in the Central Platte <br /> Valley. These flows are referred to by the FWS as "target flows." In its analysis, the FWS has <br /> 4 <br />