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<br />.' <br /> <br />Appropriation of a set of water rights that "sunset" at some future time, under any <br />variety of conditions, is not possible as such rights would not meet the Endangered Species <br />Act requirements that protections be perpetual. <br /> <br />Also, the concept of appropriating "conditional" instream flow water rights was <br />discussed and rejected. Once an instream flow is decreed, the very nature of the right <br />causes it to become absolute as a practical matter, subject only to water availability. <br /> <br />While it is possible to distinctly label or characterize instream flow water rights, labels <br />which suggest a categorical difference from the normal instream flow right appropriable by <br />the Board under its statutory authority must be carefully considered to be sure they don't <br />depart from the statutory authority. Labels that suggest a functional difference from the <br />normal instream flow rights must be carefully considered to avoid the inference that other <br />bodies of water rights law are included by reference. The terms "recovery instream flow" <br />or "endangered fish instream flow" are suggested. <br /> <br />The key need for such endangered fish instream flow applications is that decrees for <br />these instream flow rights contain explicit and detailed findings and the best possible basis <br />to support both their original adjudication and any subsequent modification. The following <br />topics, among others, should be explicitly addressed in an application: <br /> <br />1. There is scientific uncertainty. While there is sufficient information to support the <br />appropriation now, there should be further scientific information available that will <br />allow a refinement of the amount. <br /> <br />2. The amount needed for recovery in the next several years or decades may be <br />greater than that necessary for maintenance of healthy populations once established. <br /> <br />3. The effect of these appropriations upon Colorado's ability to develop its compact <br />entitlement may not be readily ascertainable. It is apparent that development <br /> <br />5 <br />