Animas- La Plata Environmental Impact Statement

As noted earlier, the Colorado Ute Indian Water Rights Settlement Act of 1988 (Public Law 100-
585) relied, in part, on construction of ALP, a Bureau of Reclamation project authorized by the
Colorado River Basin Project Act (P.L. 84 -485) as a participating project of the Colorado River
Storage Project Act (P.L. 90 -537). Since its authorization, several studies have been conducted
regarding ALP. The results of these studies are summarized in the following documents: the 1979
Definite Plan Report; a 1980 Final Environmental Statement; the 1992 Draft Supplement to the Final
Environmental Statement; and the 1996 Final Supplement to the Final Environmental Statement
( FSFES).
In August 1998, after a decade of controversy over ALP had resulted in the 1988 Settlement
remaining unimplemented, the Secretary presented an Administration proposal to implement the
1988 Settlement Act. The proposal limited ALP depletions to an average of 57,100 acre feet per year
and limited the project to only a municipal and industrial water supply for the Colorado Ute Tribes,
the Navajo Nation, and local non -Indian entities. The proposal also contemplated a water acquisition
fund to provide the Colorado Ute Tribes with the opportunity to purchase additional water rights
necessary to secure the quantities provided in the 1988 Settlement.
RA4, which is a slightly modified version of the Administration proposal, would finalize
implementation of the 1988 Settlement and avoid the extensive litigation sure to occur over tribal
water rights claims. RA4 does, however, modify the terms of the settlement as originally agreed.
The Colorado Ute Tribes' support is therefore necessary. Accordingly, the ability of each alternative
to work in a settlement context is an additional factor reviewed as part of the NEPA analysis and this
ROD. In addition, because RA4 is intended to resolve Indian reserved water rights claims,
traditional cost - benefit analyses do not apply because it would not account for the primary benefits
of an Indian water rights settlement which include avoiding direct and indirect litigation costs and
resolving claims which might be associated with failure to protect tribal trust resources. Moreover,
a significant federal investment to develop tribal resources is consistent with the federal trust
responsibility to the Southern Ute Indian and Ute Mountain Ute Tribes. Finally, and perhaps most
important, this ROD addresses an existing settlement Congress committed significant resources to
secure. RA4, with projected new costs of $ 278 million, would preserve the settlement with a
significantly down -sized project that is less than half the cost associated with the ALP concept
incorporated into the original settlement (estimated at approximately $ 700 million).
In addition to viewing the analysis and making a final decision from the perspective of an Indian
water rights settlement, the FSEIS evaluates items not ordinarily found in Bureau of Reclamation
NEPA documents. As several commenters noted, the FSEIS bases part of its analysis on non-
binding water use scenarios. These scenarios, developed in conjunction with the Colorado Ute
Tribes, allowed the Department to fulfill the requirements of NEPA by providing a context for
analyzing water uses from the modified ALP which is based on the best available information. This
approach also respects the Colorado Ute Tribes' sovereignty and protects their ability to allocate
water in accordance with future needs consistent with federal law. The FSEIS also provides
directions and commitments for future NEPA compliance once actions in furtherance of end uses
are undertaken.
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