9367 ‎(2)‎

• UCREFRP Catalog Number: 9367
• Author: Colorado Water Workshop.
• Title: Proceedings
• USFW Year: 1992.
• USFW - Doc Type: Colorado Water Workshop July 22-24, 1992.
• Copyright Material: NO

Since any water moving from one state to another must physically pass
through facilities owned and operated by the Feds, the presence of the
Federal government is unavoidable.

Secretary of the Interior's Trust Responsibilities to Native
Americans

The Secretary of the Interior, of course, has trustee
responsibilities, for the resources of Native American tribes and
communities. Among these resources are Federal reserved water right
claims, some of which have been adjudicated or settled, others of
which are still pending.
There are numerous unresolved issues concerning the legal
characteristics of Indian reserved water rights which will come to
playas the discussion of interstate marketing unfolds. Foremost
among these is the fact that these water rights are creatures of
Federal law and may, some will argue, have attributes that set them
apart from other property rights. Secondly, both the Colorado River
Compact and the Upper Colorado River Basin Compact provide that:
"Nothing in those respective compacts shall be construed as affecting
the obligations of the United States of America to Indian tribes."
The purpose and the meaning of this provision has long been debated
but never resolved.
UI timately, the Secretary of the Interior, in executing his trust
responsibilities, is likely to be called upon to deal with issues such
as these. This is but one more reason that the Federal government
will have to be dealt with by those who would seek to affect
interstate water marketing.

Environmental Regulatory Laws

Traditionally, issues concerning the operation of the Colorado
River have been framed and analyzed relative to that body of law,
which has been referred to, by the prior speakers, as the "Law of the
River." With the enactment of a wide range of Federal environmental
regulatory statutes in the past twenty years, it has become apparent
that the Federal government has also assumed a new role with respect
to Colorado River matters. Foremost among these statutes is the
Endangered Species Act. You will be hearing much more about this act
tomorrow morning. Section 7(a) (2) of that act provides and I quote,
"Each Federal agency shall insure that any action authorized, funded,
or carried out by such agency is not likely to jeopardize the
continued existence of any endangered species or threatened species
or result in the destruction or adverse modification of habitat of
such species which is determined by the Secretary to be critical."
Now in the opinion of the Fish and Wildlife Service, the Federal.
agency which is responsible for administering that act, with certain
exceptions, operations of Federal reservoirs constitute an ongoing
Federal agency action. Thus, in the past ten years, the Bureau of
Reclamation has entered into consultations with the Fish and Wildlife
Service concerning the operation of a number of its reservoirs in the
Colorado River Basin. The result has been changes in the operations
of reservoirs relative to what they have been. It is reasonable to
expect that more changes will be forthcoming as an effort is made to

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