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<br />Memo to Colorado Water Conservation Board Members <br />From Peter Evans and E.I. Jencsok <br />Date: December 5, 1995 <br />Re: Endangered Fish Instream Water Rights for the Yampa River <br />Page 9 <br /> <br />dated November 15, 1995 and a review of other information presented by staff both in <br />written form and orally. Based upon this infonnation, 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 />C. Such natural environment can be preserved to a reasonable degree without material <br />injury to water rights and without depriving the people of Colorado of the beneficial <br />use of waters available under interstate compacts, subject to the conditions included <br />in the application. <br /> <br />VI. Common Elements to Both Applications <br />A. The Recovery Program is intended to provide the means of compliance for existing <br />and future water projects with the Endangered Species Act, thereby avoiding the <br />imposition of bypass flows and other regulatory requirements. The adjudication of <br />these water rights will contribute to progress toward the recovery of the listed <br />species. The decrees will include terms and conditions making enforceability of the <br />rights dependent on (1) federal agencies not requiring owners or operators of water <br />projects constructed or having all necessary federal authorizations to take measures <br />that would decrease the water yields of their projects for the benefit of the listed <br />species, with specific language to be developed, and (2) federal agencies not relying <br />on decrees in these cases as the basis for any regulatory bypass flows. <br />B. The amount of water necessary to preserve the natural environment to a reasonable <br />degree is necessarily complex in this particular situation. While considerable <br />scientific information has been gathered, sufficient in the determination of the Board <br />to allow the Board to make this appropriation at this time, there remains some <br />uncertainty as to the amount of water appropriable without depriving the people of <br />the state of Colorado of the beneficial use of these waters available by law and <br />interstate compact under the Colorado River and Upper Colorado River Basin <br />Compacts. Nevertheless, preservation of the natural environment to a reasonable <br />degree requires urgent action at this time in order to allow recovery of the <br />endangered fish species and to avoid any unnecessary level of interference with water <br />development by federal regulation under the Endangered Species Act. The Recovery <br />Program contemplates continued research on the water requirements of the <br />endangered fishes and the Board contemplates further hydrological investigation into <br />the availability of water for beneficial use under the Colorado and Upper Colorado <br />Compacts. The Board has determined that this situation requires the present <br />appropriation of this water right, subject, however, to its possible future modification <br />by subsequent Board action. <br />