BOARD02377

• Board Meeting Date: 7/13/1998
• Description: WSP Section - Colorado River Basin Issues - 15-Mile Reach Recovery Water Rights - Cases No. 5-95CW296 and 5-95CW297
• Board Meetings - Doc Type: Memo

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MEMORANDUM - CR WCD BOARD OF DIRECTORS
CWCS ENDANGERED FISH ["STREAM FLOW CLAIMS
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The states and interested water user panicipants involved in the Recovery Program such as
the River District have supported providing rish 110ws under state law in order to avoid an
assertion bv the Service that federal "regularorv" water rights are needed for the fish. With
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the withdrawal of the Service's support for CWCB instream flows, panies are now concerned
whether FWS will assert federal regulatory water rights.

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In my opinion there is an inherent inconsistency between the Endangered Species Act
and Colorado water law. The ESA provides the Service with broad discretionary authority
that does not require proof of species endangerment and their recovery needs that rises to the
level of proof needed for adjudicating water rights under Colorado water law. The federal
govenunent and the CWCB nonetheless have moved fOIWard to adjudicate the federal
expectation for instream flows in a state law context. The CWCB rights have been resisted,
however. because there is no definite proof of the flow needs of the fish. including the
requirements for "recovery" of the fish, and because nonflow factors such as non-native
species predation may be primarily responsible for the fishes' plight.

This situation quite simply presents a conflict between inconsistent legal systems. We
can criticize the federal ESA for having unrealistic expectations which are not based upon
bard proof or a proper balancing of environmental and water use interests. On the other hand,
state water law can be criticized as being too rigid in its requirement for proof of need and
beneficial use and for not easily incorporating environmental uses. Debating those issues
really will get us nowhere unless the federal ESA can be modified.

One way to try to resolve or minimize the conflict between these two legal systems
could be to adjudicate "conditional" water rights. As you know, I have promoted that theory
bee"'''''''' I think that it is the best way for the federal flow expectation to be recognized under
state law without having definitive proof of n.:..--d and be:1etich!! use at this time. The Service
has stated that conditional water rights would be unacceptable and that the water users'
movement toward adjudicating conditional rights is one reason why it has withdrawn support
for the pending filings. The Service may have concluded that it does not want to be subject
to an ongoing test of need and beneficial use, and that state law therefore is ";n,ulequate"
because it will not recognize absolute rights based upon the Service's cunent "science."

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. BENEFITS OF A WATER RIGHTS FRAMEWORK. There are potential benefits
from having the fish flows provided in a state water law context Colorado water law could
provide for judicial review of the ~rlm;n;,;ttative decisions of the Service and CWCB
reganiing fish flow needs and compact development entitlements. More specifically, a state
water rights context, particularly a conditional water rights adjudication, could provide a /
framework for defining "recovery." In "diligence" type proceedings the FWS and CWCB