9582

• UCREFRP Catalog Number: 9582
• Author: U.S. Bureau of Reclamation.
• Title: Final Environmental Impact Statement - Navajo Reservoir Operations Volume III Comments and Responses.
• USFW Year: 2006.
• USFW - Doc Type: Grand Junction - Durango, CO.
• Copyright Material: NO

Volume III - Comments and Responses
FEIS - Navajo Reservoir Operations
Response: The RiverWare hydrology model representation of the future conditions
expected in the Basin is required to establish the "baseline" against which impacts are
measured. The depletions associated with the baseline condition include all current
depletions, all depletions that are reasonably likely to occur in the foreseeable future
without further Federal action, and all future depletions for which favorable biological
opinions have been issued through the ESA Section 7 consultation process. The depletions
that could occur without further Federal action are primarily private water rights that are
not presently used but that are likely to be put to use in the foreseeable future. The States of
Colorado and New Mexico have identified these rights.
There may be inconsistences in the determination of baseline depletions, but these are based
on the nature of the depletion, such as depletions for NIIP versus unajudicated water rights
for the Navajo Nation's Hogback and Fruitland Projects, or differing methods used by the
States of Colorado and New Mexico to identify their rights.
The Navajo Nation has been issued a concurrence letter (may affect but not likely to
adversely affect) on their 1999 Biological Assessment on completion of construction of NUP,
and the depletion value of NIIP completion is included in the EIS depletion table. Not all of
the Jicarilla Apache Nation use of their legislated right of 25,500 acre-feet of depletions per
year has been consulted on under the ESA. Therefore, some of their water does not meet the
test of inclusion in the depletion table for this analysis. Table II-1 provides a summary of all
San Juan River depletions included in the EIS.
(c) Because Navajo Nation claims are unresolved, Reclamation cannot allocate water
from Navajo Reservoir for NIIP completion.
Response: NIIP's use of Navajo Reservoir water was authorized by Congress, and its
depletions have been included in the environmental baseline and in Reclamation's depletion
table.
(d) Indian Tribes/Nations in the area have only water claims, not rights, and the dates
of these claims are in dispute.
Response: In general, Indian water claims are often established under the Winters
Doctrine rights (Winters v. United States). The Supreme Court upheld that the establishment
of an Indian reservation carries with it an applied amount of water necessary to satisfy the
purposes of the reservation. A water right granted to a Tribe under the Winters Doctrine is
given a priority date no later than the time when the reservation was established. Unlike
water rights permitted, licensed, or adjudicated under State statutes, such rights under the
Winters Doctrine cannot be lost through nonuse. Additional information is available in
chapter III, the "Indian Trust Assets" and "Environmental justice" sections of the EIS.
i