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<br />. <br /> <br />opinion stated incorrectly that neither NIIP nor the SJCP had undergone Section 7 consultation. <br />The draft opinion concluded: <br /> <br />In order that there not be any irreversible and irretrievable commitment of resources <br />in violation of Section 7(d) of the Endangered Species Act, as amended, the Service <br />recommends that no further commitments to deliver project water from Navajo Dam <br />and Reservoir be made until Section 7 consultation has been completed for Navajo <br />and all other existing projects that would deplete water from the San Juan River. <br /> <br />Ute representatives immediately asserted that the draft opinion was a breach of the Secretary's <br />trust responsibility to the two Tribes and a violation of the 1986 Settlement Agreement and 1988 <br />Settlement Act. The Navajo Nation President was critical specifically of references in the draft <br />ALP opinion to NIIP, which was not the subject of the consultation, and the direction to <br />Reclamation not to make any "further commitment" of water out of Navajo Reservoir, since the <br />commitment to deliver water for NIIP was made by statute in 1962 and in the 1976 project <br />contract between the Navajo Nation and the Secretary. The Navajo Nation was also concerned <br />that any effort by the agencies to find "surplus water" in the San Juan River to benefit the <br />Colorado squawfish would run afoul of the Navajo Nation's reserved water right claims, which <br />the Nation asserts exceed the Nation's right to water from a completed NIIP, <br /> <br />Reclamation, in a September 28, 1990, memorandum commenting on the draft opinion concurred <br />in most of the biological judgments in the draft opinion. Reclamation suggested, however, that <br />because of "flexibility in the operation of Navajo Dam," which could return the San Juan River <br />to a more natural hydrograph including peak releases in the spring to encourage Colorado <br />squawfish spawning, a reasonable and prudent alternative (RPA) could be developed. <br />Reclamation's proposed RPA included construction of only the Ridges Basin Reservoir, the <br />Durango Pumping Plant, and inlet pipeline, the features necessary to initiate the ALP. This <br />proposed RP A limited the initial ALP depletion to 57,100 acre-feet rather than the full project <br />depletion of about 154,000 acre-feet. The two Ute Tribes expressed concerns that there was no <br />provision for all of the Ute Tribes' ALP water proposed in the 1986 Settlement Agreement and <br />1988 Settlement Act. Reclamation and FWS agreed that the Tribes should be involved in all <br />. discussions leading to development of an RP A. Shortly thereafter, the agencies, Tribes, water <br />users, and other interested parties began to meet in a cooperative effort to develop an RP A, a <br />process which lasted a year. Tribal representatives were invited to participate on various <br />committees formed to accomplish this task, including the Biology Team and the Legal Team. <br /> <br />In the course of the consultation process, an important element in evaluating the effects of ALP <br />was the formulation ofthe environmental baseline which, FWS held, could include only "present <br />impacts" pursuant to ESA regulations, i.e" existing projects plus proposed projects which had <br />already been the subject of Section 7 consultation. Over the Navajo Nation's objection, FWS <br />and Reclamation included only the water depletions attributable to Blocks 1-6 ofNIIP, namely <br />132,980 acre-feet per year, rather than those for the full project. The baseline also did not <br /> <br />15 <br />