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<br />. Memo to Colorado Water Conservation Board <br />From Peter Evans and E.I.Jencsok <br />December 5,1995 <br />Re: Endangered Fish Instream Flow Water Rights, "15 Mile Reach," Colo. River <br />Page 8 <br /> <br />. <br /> <br />IV. <br /> <br />. <br /> <br />v. <br /> <br />not modifiable in the amount determined by the Board and in accordance with the <br />criteria and procedures determined by the Board would deprive the people of <br />Colorado of the beneficial use of waters available under interstate compacts and <br />would, therefore, violate the Board's statutory fiduciary duty to the people of <br />Colorado. Go o'l &. -kO'^eJ. <br />F. The Board's intent to appropriate a "Recovery Flow Water Right" is BBRlIitiBlutt <br />upon the water right being modifiable in the amounts determined by the Board and in <br />accordance with the criteria and procedures determined by the Board. In the event of <br />a [mal determination by a court of competent jurisdiction that the Board is not <br />entitled to a modifiable water right in accordance with the terms determined by the <br />Board, then the Board does not intend to appropriate the instream flow, and the <br />application shall be deemed withdrawn and any decree entered shall be void. <br />G. In determining whether to modify the recovery flow, the Board shall base its decision <br />on (1) whether and to what extent failure to modify wOuld~~e Colorado's ability <br />to beneficially use waters available under interstate compac an (2) whether and to <br />what extent modification woul~reclude conservation and recovery of the listed fish <br />species. The decree to be ente m drt~~e shall set forth the criteria and ~.p.t" <br />procedure for modifying the recovery flows. '. ~S... ~ ~ <br /> <br />Carve Out ,., CJ>'c.... ~~ <br />A "Carve Out" for future development of 100,000 acre feet of new consumptive uses ~ 0. ,? ~ <br />shoUld be made available, and distributed on a monthly basis. The "Recovery Flow Water . t>>"" <br />Right" will not be administered against junior water rights until ~ development under ~\,i.( ~ IS'^- <br />senior conditional rights and junior rights exceeds at least 100,000 acre feet of additional ~~ ).. <br />consumptive uses protected under the Carve Out. ~~~' <br /> <br />~p~~ ~ <br />The purpose of these appropriations is to preserve the natural environment to a reasonable <br />degree and to conserve and recover the endangered fish and their critical habitat in the 15 <br />Mile Reach of the Colorado River. The Board fmds that these appropriations are made <br />pursuant to Section 37-92-102(3) and 37-92-103(3), (4), and (10), C.R.S. (1990). They are <br />supported by recommendations from the U.S. Fish and Wildlife Service, and the Colorado <br />Division of Wildlife and by information contained in the reports referenced above, the <br />Final Notice dated November 15, 1995 and a review of other information presented by <br />staff both in written form and orally. Based upon this information, the Board finds that: <br />A. There is a natural environment that can be preserved to a reasonable degree with the <br />Board's water right, if so granted; <br />B. A natural environment will be preserved to a reasonable degree by the water <br />available for the appropriation; and <br />