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<br />12. The instream flow water right adjudicated herein shall
<br />be administered with a 1992 priority date, and shall pe junior to
<br />any water right decreed in Case No, 91CW247, Water Division 5,
<br />This water right shall not be used in any way to prevent
<br />operation of the Orchard Mesa Check, as more fully identified in
<br />Case No, 91CW247, to its existing full physical capacity,
<br />
<br />13, The adjudicati.on of this instream flow water right will
<br />contribute to sufficient progress toward the resovery of
<br />endangered Colorado River fishes pursuant to the Recovery
<br />Implementation Program for Endangered Fish Species in the Upper
<br />Colorado River Basin (Recovery Program), The adjudication of
<br />this water right is SUbject to and fully consistent with the
<br />Memorandum of Agreem~,'t between the United States Fish and
<br />wildlife Service (USFWS) and the CWCB dated September 21, 1993
<br />(MOA) and the Section 7 Consultation, Sufficient Progress, and
<br />Historic Projects Agreement dated October 15, 1993 (Section 7
<br />Agreement) ,
<br />
<br />14, The parties agree that the water rights decreed in
<br />this case and these Findings of Fact, Conclusions of Law,
<br />Judgment and Decree shall not be used directly or indirectly as a
<br />basis for the imposition of bypass flows or other regulatory
<br />requirements for the purpose of providing flows in the IS-Mile
<br />Reach, whether through permit proceedings or other regulatory
<br />actions, The water rights decreed in this case shall not be
<br />called or otherwise enforced if any federal agency uses, or seeks
<br />to use, directly or indirectly, these Findings of Fact,
<br />Conclusions of Law, Judgment and Decree in violation of this
<br />paragraph,
<br />
<br />15, A, The water rights decreed in this case shall not be
<br />called or otherwise enforced if any federal agency requires the
<br />owner or operator of any water project which, prior to the date
<br />of this appropriation, has been operated or constructed or has
<br />received all federal authorizations necessary for construction,
<br />to release, forego, or bypass water which is physically available
<br />in priority to be diverted under the water right~ and
<br />authorizations associated with the project, or to undertake any
<br />other measure that would decrease the water yield to the owner or
<br />operator of the project under those water rights and
<br />authorizations, for the currently listed endangered fishes or
<br />their critical habitat in the Colorado River below its confluence
<br />with Rifle Creek or for fishes listed or critical habitat
<br />designated in the future whose flow requirements could reasonably
<br />be incorporated into the Recovery Program, Provided, however,
<br />that this provision:
<br />
<br />(1) applies only to projects utilizing waters of the
<br />Colorado River or its tributaries upstream of the
<br />IS-Mile Reach, including Bureau of Reclamation
<br />projects;
<br />
<br />3
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