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<br />. <br /> <br /> <br />GALE A. NORTON <br />Attorney General <br />MARTHA PHILLIPS ALLBRIGHT <br />Chier Deputy Attorney General <br />RICHARD A. WESTFALL <br />Solicitor General <br /> <br />STATE OF COLORADO <br />DEPARTMENT OF LAW <br /> <br />STATE SERVICES B!:ILDING <br />1525 Sherman Street - 5th Floor <br />Denver, Colorado 80203 <br />Phone (303) 866-4500 <br />FAX (303) 866-5691 <br /> <br />OFFICE OF THE ArrORNEY GENERAL <br /> <br />May 29, 1998 <br /> <br />All counsel of record <br /> <br />. <br /> <br />RE: Case Nos. 95CW296 & 297, Water Division 5 <br />Case Nos. 95CWl55 & 156, Water Division 6 <br /> <br />Dear Counsel: <br /> <br />As you probably know by now, at a May 4th meeting with state and water user <br />representatives, the U.S. Fish and Wildlife Service announced that it was withdrawing its <br />support for the above applications and for planned future applications to preserve instream <br />flows for the benefit of the Colorado River endangered fish. The Service took this action <br />because it believed that the proposed draft decree in the IS-mile reach recovery flow case <br />would not significantly benefit the fish. <br /> <br />At its meeting on May 12th, the CWCB discussed whether to dismiss these cases. TheBoard <br />decided that, before taking any action, it wanted to receive public comment. The Board <br />would like people to consider and comment on the baseflow and recovery flow applications <br />separately. <br /> <br />Although the Fish and Wildlife Service does not officially support any of the filings, I think <br />that at least some of the people involved in the recovery program believe that baseflow rights <br />would benefit the fish and that they would be encouraged if these rights were decreed. <br />Because the recovery flow applications are so novel and controversial, the baseflow <br />applications have received little attention to date. You may recall that, like "traditional" <br />CWCB instream flow rights, the baseflow applications are for relatively small, specific <br />amounts of water, do not have a carve-out, and are not modifiable. The decrees would be <br />absolute, but like the decrees in Case Nos. 92CW286 and 94CW330, Water Division 5, could <br />include "poison pill" provisions. I urge you and your clients to seriously consider whether it <br />is in their interest for the Board to have these rights adjudicated. <br /> <br />. <br /> <br />The CWCB's next meeting is scheduled for July 13th and 14th in Telluride. The Board staff <br />would like to receive any written comments by July 2nd, so that it can distribute them to the <br />Board members in advance. You have my consent to provide written comments directly to <br /> <br />I <br />I <br />l <br />I <br /> <br /> <br />I <br />