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. Y1EMORANDUM - CR WCD BOARD OF DIRECTORS CWCS ENDANGERED FISH INSTREAM FLOW CLAIMS PAGE2 o BASIS FOR RIVER DISrRICT'S SUPPORT OF INSTREAM FLOWS. The River District supports the Recovery Program. The Board particularized the naUlre of and conditions on that support in its October 21. 1997 Recovery Program Policv. The River District also has a specific statement of position regarding support for the C\YCB instream flows: . [T]he Colorado River Water Conservation District supports the efforts of the Colorado Water COl1servation Board in maintaining sufficient progress under the Recovery Program for Endangered Colorado River Fishes by appropriating in~tream flows under state law prior to December 31. 1995. provided that the Water rights to be obtained by such appropriations do not serve to deny Coloraclo water users the full development of Colorado's Compact entitlement to beneficial consumptive use of water of the Colorado River and also provided that such rights are subject to terms and conditions consistent with pertinent District policies. (Motion of October 16, 1995) The Service's withdrawal of support for the pending instream flow claims raises at least two considerations about the River District's stated position. First, if the programmatic biological opinion is adopted and applied, the concept of "sufficient progress" for the Colorado River mainstem will no longer exist, at least as we have known it. Therefore, the ) specific basis for the River District's support of flow filings may no longer exist, and the Board will need to consider the effect of any new meaning of "sufficient progress" concerning the mainstem. Second, the withdrawal ofFWS support means that the pending flow claims probably will not contribute to "maintaining sufficient progress" even if the programmatic biological opinion process fails. Again, the specific basis for River District support of the pending claims will not exist. e POSITIONS OF RIVER DISTRICT CONSTITUENTS. Attorneys for some Western Slope water users have taken the position with CWCB that the pending claims should be immediately withdrawn. Glenn Porzak and Scott Balcomb both have urged immediate withdrawal of those claims. Glenn has taken the position that the Service'S) withdrawal of support has eliminated the CWCB's appropriativ ;ntent to benefit the endangered fish. He is probably correct on that position. Scott has takell the position that the absence of proof of need for the pending claims is fatal to those claims but that the State should explore other approaches to providing flows under state law. . 8) STATE LAW vs. FEDERAL LAW BASIS FOR FISH FLOWS. In the implementation of the Upper Basin Recovery Program the participants have expected that the flows needed for endangered fish recovery and maintenance will be provided under state law.