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Memo to Colorado Water Conservation Board Membcrs From: Peter Evans and Gene Jencsok Date: October 17, 1995 SUBJECT: Agenda Item 2, October 20, 1995 Board Meeting Endangered Fish Recovery ISF Watcr Right - Colorado River (Mainstem) Page 2 the Recovery Program can continue to provide the "reasonable and prudent alternative" for water projects confronting Endangered Species Act (ESA) rcgulations. Since 1988, when the CWCB and other agencies helped establish the Recovery Program, the state of Colorado has exercised greater influence (along with the water development and environmental communities) in the planning and implementation of research and recovery actions than we ever had before. Colorado's water development interests have been especially well served by participation in and support for the Recovery Program: mOre than 170 projects (over 120 of them in Colorado) have successfully navigated the ESA regulatory requirements without any being rejected or significantly modified. The only notable difficulty to date occurred in the 1991 biological opinion for the Muddy Creck (now "Wolford Mountain") Project, in which the U.S. Fish and Wildlife Service (FWS) concluded that Recovery Program efforts to protect flows in the 15 Mile Reach had not been sufficient to offset the identified impacts and recommended that 3000 acre-feet of water be made available for flow protection in the 15 Mile Reach "until such time as the Recover Program acquires and legally protects an equivalent amount of water" in the 15 Mile Reach or makes sufficient progress in other flow protection efforts. The Colorado River Water Conservation District agreed to implement this recommendation, and the project was completed without any further complication. Today, the FWS continues to look to the Recovery Program as a preferred alternative to the traditional regulatory approach (in which each water project was required to mitigate its own impact independently). This is especially noteworthy for two reasons: first, because it appeared that FWS flow recommendations and habitat protection concerns were becoming a virtual roadblock to further water development in the mid-1980's and, second, because of the number of water projects within the Colorado River basin facing ESA Section 7 consultation proceedings in the next few years (many existing projects face thc reinitiation of Section 7 consultations due to the 19'H listing of the razorback sucker and the 1994 designation of critical habitat for all four of the endangered fishes). Overview of CWCB Staff Recommendation. There continues to be significant interest in reviewing and refining the options which we have been studying over the past 6-12 months. Following the pattern established last week for the protection of flows in the lower Yampa River, we have developed a 15 Mile Reach recommendation for your consideration. Although we recognize that the approach described below may not be appropriate for other rivers or other locations on the Colorado River, we recommend that the CWCB apply for two water rights in the 15 Mile Reach: a "basc flow water right" and a "recovery flow water right," which are described below in greater detail. The base flow water right would be designed to protect the river against dry up from junior water rights and changes of water rights during all twelvemonths of the year, This water right would protect a small amount 6fwa~er:l!Dd would not be subject to the recommended allowance for future water development or: . 95C 1490