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. MEMORANDUM - CRWCD BOARD OF DIRECTORS' CWCR E.'VDANGERED FISH ["'STREAM FLOW CLAIMS PAGE.. could reline the fish flow science. the species' needs and the efficacy of ': ngoing actions to control non-natives and otherwise provide habitat. Without a state water r:glus context. it will be more likely in my opinion that the definition of recovery and other important decisions will be made in a federal administrative context. o RECOVERY FLOWS vs. BASE FLOWS. The "base flows" requested in both the 15- Mile Reach and in the Yampa River basin are for relatively small amounts of water which would be absolute and essentially would provide for "survival" type flow conditions for the fish. These base flow claims are much more like the traditional CWCB instream flow claims. which have been adjudicated on many other stream systems. than are the recovery flow claims. The base flow rights are for amounts far less than Compact delivery requirements. . In contrast. the recovery flow claims are both factually and legally novel in their request for "all remaining flow" less an amount of future depletions which would be available either as a "carve out" or through a "modification" process. The recovery flow claims really have engendered the substantial concerns. and the available proof of beneficial use and need for those claims does not satisfy water users. One decision which the CWCB will need to) make is whether to treat the base flow and recovery flow claims in the same manner in regard , to a potential withdrawal of claims. The State's attorney seems more reluctant to have CWCB withdraw the base flow claim than the recovery flow claim. . <D STATUS OF BIOLOGICAL OPINION PROCESS. The programmatic biological opinion is still being negotiated. Tbat process mayor may not come to a resolution which is acceptable to all parties or to specific parties such as the River District. Substantial East Slope vs. West Slope issues remain to be resolved on matters such as the fairness of a process for providing "permanent" storage water for the fish and in meeting other "reasonable and prudent altemative" provisions to allow the future depletions which will mostly benefit transmountain diverters. Those negotiations have been very time conswning but have not yet produced a resolution which I would reco=end that the Board should accept given the provisions in your October 21,1997 Recovery Program Policy. Until a progr:<mmatic biological opinion is achieved which is acceptable to the River) District by meeting your policy objectives, I believe that it could be risky tor CWCB to withdraw its instream flow claims without committing to explore alternative strategies for providing flows under state law. If the biological opinion process fails, the Service may re- evaluate its position on "sufficient progress" requirements. In that context, if the state water rights process has been abandoned (at least for recovery "appropriations"), the Service may have more political and legal basis to assert federal regulatory rights.