Animas-La PLata Project Environmental Impact Statement

senior water rights, the ALP Project as proposed provides a dependable long -term water supply for
neighboring Indian and non - Indian community water needs, including the Navajo Nation at and near
Shiprock, New Mexico, the Animas La Plata Water Conservancy District (ALPWCD) and the San Juan
Water Commission (SJWC). In addition, water would be provided to the State of Colorado and the La
Plata Conservancy District in New Mexico from the Colorado Ute Tribal allocation.
It should be noted that the non - federal parties of the Settlement Agreement, working with their
congressional representatives, have introduced proposed legislation (H.R. 3112 and S. 2508) in response
to the Administration Proposal and the ongoing NEPA process. The project purpose and need reflects
the reality that the pending legislation will likely result in a modification to the Settlement Act which will
eliminate the irrigation component and provide substitute benefits to the Colorado Ute Indian Tribes that
are equivalent to those that the Tribes would have received under the Settlement Act. See Chapter 2,
Section 2.1.1 for further discussion of this issue.
Water Rights of the Colorado Ute Tribes
Based on the Supreme Court's decision in Winters v. United States, 207 U.S. 564 (1908), when Congress
or the President establishes an Indian Reservation, there is reserved the amount of water necessary in
order to accomplish the purposes of the reservation. Under the Winters doctrine, the priority date to
which the reservation is entitled is no later than the date of creation of the reservation. One of the unique
aspects of Indian reserved water rights is that they are not subject to the beneficial use requirements ( "use
or lose ") of state water law. Indian water rights, therefore, may not be diminished for failing to meet a
beneficial use standard under state law. As a general rule, Indian water rights are very senior and
because these rights are premised on sufficient water being reserved to insure full utilization of the
purposes of the reservation, both presently and in the future, Indian water rights are usually sizeable in
quantity.
The Colorado Ute Tribes' reserved water rights arise from an 1868 treaty with the United States. 15 stat.
619. This treaty states that the land which is now part of the reservation was "set apart for the absolute
and undisturbed use and occupation" by the Colorado Ute Tribes. Art. XIII. Additionally, the treaty
provides for the basic tools, facilities and livestock needed to become self - sustaining. Based on these
broad purposes, the tribes are entitled to make a claim for water in the Animas and La Plata basins. The
Colorado Ute Tribes have over 25,000 acres of arable land in the immediate vicinity (13,780 acres of
which were to be irrigated by the original ALP Project) and therefore have the basis for a sizeable water
rights claim based solely on the agricultural purposes of their reservations. In return for not asserting a
possibly sizeable claim, the Colorado Ute Tribes will receive a much smaller amount of "wet water" for
settling their Winters rights.
Because the Animas La Plata project is a settlement of the Colorado Ute Tribal Winters rights, the
ultimate use of the water is left to tribal discretion in accordance with federal law. As of this time the
tribes have not conclusively specified to what end uses they will put their water. Because NEPA requires
the federal government to make a reasonable projection of the potential environmental consequences of
any proposed action, Reclamation, in conjunction with input from the tribes, developed potential water
use scenarios on how the Tribes could put their water to use in order to effectively evaluate the potential
environmental effects of settling the water rights claims of the Colorado Ute Tribes and providing for
identified M &I uses in the project area. Reclamation believes that this approach fulfills the requirements
of NEPA while not impinging upon the sovereignty of the Colorado Ute Tribes.
Any future actions would be subject to future environmental review, and NEPA compliance would be
required as part of any approval by a federal agency. Future federal actions would serve as "triggers" for
future NEPA compliance activities, and could include future connection to a federal facility for water
conveyance enlargement or extension of certain existing conveyance systems, and, certain uses of a water
ES -2