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<br />. <br /> <br />. <br /> <br />. <br /> <br />Attachment 1 - continued <br /> <br />requires action at this time in order to allow recovery of the <br />listed species and to avoid any unnecessary interference with water <br />development by federal regulation under the Endangered Species Act. <br />The Recovery Program contemplates continued research on the water <br />requirements of the listed species and the Board contemplates <br />further hydrological investigation into the availability of water <br />for beneficial use under the compacts. The Board has determined <br />that this situation requires the present appropriation of this <br />water right, subject, however, to its possible future modification <br />by subsequent Board action. <br /> <br />d. The Board has further determined that paragraph 3 of the <br />"Memorandum of Agreement Between the United States Department of <br />the Interior Fish and Wildlife Service and the Colorado Water <br />Conservation Board Concerning the Enforcement and Protection of <br />Water and Water Rights," dated September 21, 1993 (Enforcement <br />Agreement) will apply to the base flow water right. Therefore, the <br />base flow water right will not be modified "ithout the concurrence <br />of the Service. <br /> <br />e. The decree in this case will provide that it cannot be <br />used as the basis for an objection to future changes of water <br />rights or upstream exchanges of water rights, so long as such <br />changes or exchanges do not cause material injury to the water <br />rights decreed herein. To the extent that such changes or <br />exchanges do not result in any increase in historical consumptive <br />use, which in the case of changes involving conditional water <br />rights will be determined based on the contemplated draft of such <br />rights at the original point of diversion, there will exist a <br />presumption of no injury. <br /> <br />f. The Recovery Program is generally intended to provide the <br />means of compliance by existing and future water projects with the <br />Endangered Species Act, thereby avoiding the imposition of bypass <br />flows and other regulatory requirements. The adjudication of the <br />base flow water right will contribute to sufficient progress toward <br />the recovery of the listed species. The decree in this case will <br />include terms and conditions making enfon;:eability of the base flow <br />water right dependent on federal agencies complying with the <br />Recovery Program and the Section 7 Consultation, Sufficient <br />Progress, and Historic Projects Agreement dated October 15, 1993 <br />(Section 7 Agreement) and not requiring bypass flows from existing <br />projects. Specific language on these points will be developed and <br />included in the decree. <br /> <br />g. The decree in this case will provide that the base flow <br />water right shall be unenforceable or terminated upon the <br />occurrence of specific conditions, including, but not limited to, <br />those conditions that would result in termination of the <br />Enforcement Agreement pursuant to paragraph 2 of that agreement. <br />Specific language on these points will be developed and included in <br />the decree. <br /> <br />3 <br />