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.. ~ .. CALOlA .. HotJ'PT, P.C. Peter H. Evans Wendy C. Weiss July 6, 1998 Page 2 feet of additional development in exchange for numerous "reasonable and prudent alternatives," of which the instrcam flow claims are but one; others include the delivery of 10,000 aae feet from Reudi Reservoir, the delivery of 28,000 acrc feet from the Grand Valley Water Management Project, the delivery of all of the "excess" water in the Historic Users Pool of Green Mountain Reservoir, 6,000 acre feet from Wolford Reservoir, permanent dedication of 10,800 aae feet from Reudi Reservoir, a long t= contract for all of the remaining uncommitted water in Reudi Reservoir, and numerous other commitments. In contrast, the Fish and Wildlife Service, which agreed to acquire water rights to protect the fish under state law through the CWCB, has provided little if any demonstration that the instream flow rights, to be acquired at such a heavy price to Colorado River water users, are actually necessary to recover the endangered fish in the I S Mile Reach. Now, the Fish and Wildlife Service has stated expressly that it does not believe the filings would benefit the endangered fish at all, and has withdrawn its support for the CWCB's applications. One of the most fundamental precepts of Colorado water law is that water may not be appropriated without an adequate demonstration of need for the water being appropriated. In the absence of any recognized benefit of the claimed instream flows, and in the face of the obvious and substantial adverse impacts to the exercise of existing water rights and development of future water supplies from the Colorado River and its tributaries, we recommend that the CWCB promptly dismiss its applications in Case Nos. 9SCW296 and 9SCW297. In so doing, neither the CWCB nor the Fish and Wildlife Smice should assume that Colorado's existing water law is inadequate to provide protection for the endangered fish. No bona fide attempt has been made by the CWCB or Fish and Wildlife Service to meet the burden of demonstrating a need for the water. Rather, it seems that the CWcB and Fish and Wildlife Serviee were expecting to negotiate absolute decrees for the claimed water rights based on the Fish and Wildlife Seivice's strong desire to have their rights included within the Recovery Program and the availability to the Service of various tools of enforcement under the Endangered Species Act. The Fish and Wildlife Service's apparent unwillingness to meet the requirements of Colorado law should not be interpreted as a deficiency of that law in its ability to protect endangered species. NWcds Sincerely, CWCB.!iVl1lS.1tr