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<br />ODil785 <br /> <br />the habitat in Central Nebraska, The FWS has allowed these permits to continue as valid, <br />by virtue of interim conditions pending the finalization of the Platte River program <br />negotiations, If the program is not developed or implemented, these permits will need to <br />go through individual, pennit-by-permit consultation, each entity potentially having to <br />bear onerous reasonable and prudent alternatives, The permittees "dispute that their <br />activities have an adverse impact on the listed species or their habitat so extended and <br />expensive litigation with the FWS may also be a likely result if the pennit-by-permit <br />approach were to be followed" <br /> <br />Colorado's interest in negotiating the program has been to develop as much regulatory <br />certainty for these and other existing water users as possible, while providing defined and <br />measurable contribution to the recovery of the listed species, Colorado has also sought a <br />framework which will allow new water use and development activities to movc forward, <br />without the costly and time-consuming compliance that the ESA would otherwise <br />reqUire, <br /> <br />The Kingslev Relicensiflf Process. Kingsley Dam, located on the North Platte River in <br />Nebraska, forms Lake McConaughy, a I million acre foot reservoir that provides <br />irrigation water and electricity to Central Nebraska, For the last 15 years or so, the FERC <br />has undertaken a process for the Relicensing of the hydroelectric power-generating <br />features of the darn" One of the major issues in the relicensing is the impact that Kingsley <br />operations have on the listed species and their habitat. In its consultation on the FERC <br />relicensing process, the FWS has proposed two reasonable and prudent alternatives, one <br />with, and one without, a basinwide program" The "without a program" alternative entails <br />much more onerous requirements" <br /> <br />Colorado's interest in negotiating-the program has been_to assure that, as the largest water <br />facility in the basin and closest to the habitat, the Kingsley license bears an appropriate <br />share of the program burdens, and that the Districts which operate the dam continue to be <br />partners in the program as it develops and evolves" <br /> <br />The Nebraska ,WelL~. In Colorado, all nOB-exempt wells tributary to ,the South Platte <br />River must fully augment, or replace, the out-of-priority depletions they cause to <br />downstream senior water rights in Colorado" This has been the law since 1969, On the <br />other hand, Nebraska law does not regulate, or even keep track of, well development that <br />depletes the Platte River. Some water users estimate that thousands of irrigation wells <br />exist in Nebraska, that cause significant depletion to the river, and thus impact the listed <br />species and their habitat. To date, these wells have not been subject to regulation under <br />the ESA" <br /> <br />Colorado has not had an interest in intruding into the operation of Nebraska law" <br />However, continued unregulated well development in Nebraska that impacts the listed <br />species may increase the burden Colorado must bear in recovering the species and their <br />habitat. Moreover, by depleting the river, these wells would divert water Colorado would <br />be delivering under a program" Colorado's water deliveries would then lose their <br />