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<br />, <br /> <br />include Southern Ute Indian water rights which had been quantified but had not yet been put to <br />use on tributaries of the San Juan River not affected by ALP, or any Jicarilla Apache water <br />rights. JicarilIa Apache water right claims were then in the final stages of a negotiated <br />settlement, but since they did not represent a present impact in the ALP area, much less <br />quantified rights, no consideration was given to those claims in the consultation process, <br /> <br />The Tribes complained of anomalies in development of the environmental baselines against <br />which the effects of Federal agency actions are measured,7 The NIIP, for example, was co- <br />authorized with the SJCP and those projects are required to share shortages. In April 1976, <br />Reclamation Commissioner Stamm, with the pre-approval of Assistant Secretary Horton, signed <br />a 40-year contract with the Navajo Nation for NIlP before the vast majority of SJCP water was <br />even put to use. Because the full SJCP diversion across the Continental Divide is in place, it was <br />counted in the baselines of other San Juan River Basin projects, but only the operating portion of <br />NIlP, up to its 1991 depletions, has been included. The Jicarilla Apache Tribe also is entitled to <br />share shortages with these projects under the terms of their 1992 Settlement Act but hardly any <br />of that settlement water is included in any baseline. <br /> <br />The core of the tribal criticism and concern has been that development of environmental <br />baselines for Section 7 consultations appears to disregard the very nature of their water rights <br />claims. The Tribes assert that the current Section 7 baseline analysis ignores the fact that Federal <br />Indian reserved water rights are vested property rights to meet the present and future needs of <br />Indian tribes, regardless of whether those rights have been adjudicated or otherwise formally <br />recognized and regardless of whether those rights have been exercised. The FWS consults on <br />water projects when requested to do so by the Federal action agency and includes existing and <br />proposed projects in the baseline only if they were the subject of earlier Section 7 consultations. <br />This "first-in-time" approach allows projects with junior water rights to "jump ahead" of the <br />unexercised senior Indian rights in biological opinions, The Tribes see modem efforts to <br />recognize their rights through Federal legislation authorizing water projects which benefit Tribes <br />and/or providing for the final settlement of their claims, frustrated by FWS regulations which <br />appear to require that other projects be evaluated first. The FWS officials counter that the purely <br />scientific nature of their task in the preparation of a biological opinion requires that they assess <br />the effects of a proposed project in light of the actual situations in the affected area. The FWS <br />believes that to take into account unexercised Indian claims of legal rights, which are often <br />unquantified or unadjudicated, would skew FWS's assessment of the agency action which it is <br /> <br />7 Contrary to a popular perception, inclusion of water project depletions in the environmental <br />baseline for a biological opinion on another project does not create an entitlement in the first <br />project for ESA-free water for that project. Whenever a project undergoes Section 7 consultation <br />that project is necessarily excluded from the baseline used to evaluate its effects on endangered <br />species and their habitats and that baseline is compared to the conditions which would exist with <br />the project. However, project inclusion in baselines does have the tendency to prevent projects <br />not yet consulted on from jumping ahead in the battle for limited resources. <br /> <br />16 <br />