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<br />. <br /> <br />. <br /> <br />. <br /> <br />. Modification of the recovery flow right to allow more new depletions than allowed by <br />the programmatic biological opinion is grounds for reopening the biological opinion. <br />Modification of the right could also be grounds for determining that delisting is not <br />possible, or that relisting is needed. <br /> <br />If these kinds of conditions can be met, EDf will be able to continue to support the flow <br />filings. We will await the CWCB decision following the other public comments at its July <br />meeting. Unless we are informed at or following the meeting that these or similar <br />conditions can be met, we will not support any instream flow rights that might come out <br />of the adjudicatory proceedings now underway. <br /> <br />, We will then'withdraw from the water court cases as soon as we can and we will also <br />make a request of the Implementation ComIllittee that the current 15 Mile Reach, Yampa <br />and any subsequent instream flow filings in Colorado be removed from the RIPRAP. <br /> <br />Without the degree of protection afforded by substantive instream flow water rights we <br />think that it is likely that other flow protection provisions of the RIPRAP will have to be <br />expanded and moved forward and that the cOnditions for reopening the programmatic <br />biological opinion will have to be strengthened or tightenecl <br /> <br />Regarding the programmatic biological opinion discussions now underway for the 15 Mile <br />Reach, we have the following comments and suggestions related to the discussion draft <br />distnbuted by the Service at the 15 Mile Reach meeting on May 4, 1995. <br /> <br />. <br /> <br />In general, we support the proposals of tbe Service coni:eriring the definition of <br />Category I depletions and size of the tOUlI of Category II depletions. However, we <br />believe that there should be an additional review between the-50,000 acre-foot (or. <br />year-2015) assessment and the full 120,000 acre-foot level. The first review could' <br />allow depletions up to 90,000 acre-feet. A second intermediate review should occur <br />at SO,OOO acre-feet to determine if the full 120,000 acre-feet can be depleted. ' As with <br />the 50,000 acre-foot review, the criteria sbould be completion of tbe coIllponents of <br />the reasonable and prudent alternative (RP A) and status of tbe fish. If eitber tbe RP A <br />elements are not completed o. the status of the fish hi'S not ;mp,'J~'c<.l, ill, Ser\'iceVv111 <br />take the actions it describes in the first full paragraph on page 3 of its discussion draft: <br /> <br />If the... review indicates that either RPA elements have not been completed or <br />that fish status has not improved, the Service will specify additional measures to <br />be taken by the program to serve as the RPA for depletions associated with the <br />second 60,000 acre-foot block. If other measures are determined needed for <br />recovery prior to the review, they can be added to the RlPRAP according to <br />standPrd procedures. If the Program is unable to provide additional RPA <br />elements, which the Service has determined to be required ... consultation on <br />projects with a federal nexus may be reinitiated in accordance with Endangered <br />Species Act regulations and this opinion's reinitiation requirements. <br /> <br />3 <br />