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<br />Memo to Colorado Water Conservation Board Members <br />From: Peter Evans and Gene Jencsok <br />Date: October 17,1995 <br />SUBJECT: Agenda Item 2, October 20, 1995 Board Meeting <br />Endangered Fish Recovery ISF Water Right - Colorado River (Mainstem) <br /> <br />Page 6 <br /> <br />within Colorado. However, the CWCB concluded that action to protect the essential elements of <br />habitat necessary to recover the endangered fishes should not be delayed, since further delay <br />would impair our opportunities to implement the Recovery Program and to avoid substantial <br />regulatory confrontation and litigation, <br />In consultation with the Attorney Genera!, the CWCB concluded that its statutory <br />authority to appropriate and protect instream flows "to preserve the natural environment to a <br />reasonable degree" is sufficient to include these efforts to preserve the aquatic habitat and flows <br />needed for recovery of the endangered fishes. The CWCB also concluded that, while there is <br />uncertainty concerning the magnitude and frequency of the necessary flows, there is a <br />considerable body of information which may provide an adequate basis for the appropriation of <br />instream flows in the context of its interim strategy. The CWCB indicated that the FWS flow <br />recommendations would be used as a starting point in determining the size and structure of its <br />fish recovery instream flow water rights, but thatthe adequacy of the available information must <br />be determined by the CWCB in addressing each specific instream flow appropriation. However. <br />the ability of the CWCB to modify the fish recoverY instream flow water rights in the future to <br />reflect water sup91y needs. interstate compact considerations. and better understandinlJ of the <br />recoverv needs of the endangered fishes was an essential element in this interim stratel!Y, and an <br />important institutional breakthrough. The recent ruling of the Colorado Supreme Court in the <br />Snowmass Creek case has raised concerns that the CWCB's authority and method for modifying <br />instream flow water rights should be specified by the state legislature. These questions will <br />require careful examination (and possible statutory resolution). <br />The CWCB's Statement of Policy and Procedure outlined a procedure for the <br />appropriation of instream flow water rights needed to recover the endangered fishes, but it clearly <br />characterized that procedure as an informal guideline to be implemented subject to Colorado law <br />and the, CWCB's instream flow rules. <br />-The Statement of Policy and Procedure next indicates that the CWCB will complete a <br />hydrologic assessment, and that the CWCB may appropriate less than the biologically based flow <br />recommendation to the extent that those recommendations exceed the amount of water physically <br />available in the stream segment and to the extent necessary to avoid near-term conflicts with <br />reasonably foreseeable development. The CWCB indicated it would determine the quantity of <br />the water to be appropriated based upon these considerations. <br />In preparing these recommendations, we have carefully followed the procedure outlined <br />in the 1994 Statement of Policy and Procedure. <br /> <br />Compact Development Proiection Workgroup Recommendations. The interim strategy <br />called for the establishment of an estimated "development projection" for each of the major sub- <br />basins of the Colorado River within the state of Colorado based upon a) the best available <br />hydrology and consumptive use data, b) the interstate compacts, c) generous, long-term <br /> <br />95C 1494 <br />