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<br />.:) <br /> <br />J <br /> <br />While the Board must make determinations that the natural environment will be preserved to a <br />reasonable degree by the water available for the appropriation and that there is a natural <br />environment that can be preserved, there are no detailed standards specified for the measurement <br />of "the preservation of the natural environment to a reasonable degree," It is clear that an <br />overriding constraint to establishing large instream flows for the endangered fish is Colorado law <br />and the Colorado River and Upper Colorado River Basin Compacts: <br /> <br />-' <br />,.orlI <br />~ <br />Q <br /> <br />Nothing in this article shall be construed as authorizing any state agency... to deprive the <br />people of the state of Colorado of the beneficial use of those waters available by law and <br />interstate compact. CRS ~ 37-92-102(3) <br /> <br />Currently, information and tools available to the Board leave it difficult to determine the effect <br />of any set of instream flow appropriations upon the state's future water development opportunities <br />under Colorado law and interstate compacts. While work on such tools is proceeding with the <br />development of the Colorado River Decision Support System, will likely take several years to <br />complete. However, during the interim, instream flow protection must be provided for the <br />Recovery Program to succeed. <br /> <br />The concept of fish "recovery" also suggests a possibility for subsequent downward modification <br />of an instream flow water right. More water may be needed for recovery; however, once viable <br />fish populations are re-established, more water may become available for development and still <br />afford protection of the natural environment to a reasonable degree. If this should turn out to be <br />the case, modification of the water right should be made based on future factual determinations. <br />The possibility also exists that future studies may identify a need for more water. <br />Because of the scientific uncertainty as to exact flow requirements of the fish, the potential <br />impact upon the compact development opportunities and the need to proceed on recovery <br />implementation, the September 1993 Enforcement Agreement provides for modification of <br />instream tlow water rights for the endangered fish through paragraphs 3 and 4. The Policy and <br />Procedure document states that the Board will indicate by formal resolution, which portion of <br />each fish recovery in stream flow is controlled by paragraphs 3 and 4 of the Board's Enforcement <br />Agreement with the Service. <br /> <br />Paragraph 3 of thc Enforcement Agreement controls that portion of an instream flow water right, <br />if any, which docs not impinge upon the Board's estimated "development projection" for the <br />subbasin(s) which would be affected. Paragraph 4 of the Enforcement Agreement controls that <br />portion of an instream flow water right which may be subject to modification, based on <br />resolvement of scientific uncertainty and uncertainties concerning Colorado's use of its compact <br />entitlement. Prior to any changes, the Service will be consulted. The staff will consider the <br />following factors in recommending to the Board which portion shall be controlled by paragraphs <br />3 and 4: <br /> <br />- Level of assurance that the flow recommendations are based on the best scientific data, <br />information and technical studies; <br />- Level of assurance with which the "reasonably foreseeable development" needs can be <br />assessed; <br /> <br />5 <br />