BOARD01872

• Board Meeting Date: 9/27/1999
• Description: Colorado River Basin Issues - Interior Department's Indian Water Rights Report
• Board Meetings - Doc Type: Memo

summarized above, ALP would not. The opinion also included a conference opinion on the
effect of the action on the razorback sucker, another native fish which was listed as endangered
on October 23, 1991.

The ALP opinion coincided with a biological opinion on NIlP Blocks 1 through 8, concluding
consultation between BIA and FWS. The BIA requested consultation on less than the full NIlP
because BIA and Navajo Nation officials believed that the full project would receive a
"jeopardy" opinion based on the ALP draft opinion. There was reason to believe, however, that a
consultation only on Blocks 1-8 could yield an RP A which would allow construction of Block 8
to commence. The Nil? RP A would allow diversion of water to Block 7, in addition to allow
construction to go forward on Block 8, This RPA did not increase the amount of water already
being diverted to NIIP but provided for a redistribution of the existing supply and the addition of
water which had been diverted to the Hogback and Fruitland Irrigation Projects. The BrA asked
that consultation on Blocks 9-11 be postponed in face of the likelihood that a full NIlP
consultation would yield a jeopardy opinion. Construction of those last three Blocks was still
several years away.

One element of the RPA for ALP was the creation in October 1992 of the San Juan River
Recovery Implementation Program (SJRRIP) in which Federal agencies, the States of Colorado
and New Mexico, and the Indian Tribes have participated. The Navajo Nation declined to sign
the Cooperative Agreement establishing the RIP because it would make no legally binding
commitment to using Navajo Reservoir waters to which it claimed entitlement for the benefit of
the Colorado squawfish. But the Nation participated in discussions and became a voting member
of the Coordination Committee in 1996. The SJRRIP oversees endangered fish research on the
San Juan River, Its twin goals are to conserve populations of the Colorado squawfish and
razorback sucker in the San Juan River Basin and to proceed with water development in the
Basin in compliance with Federal and State laws and the Federal trust responsibilities to the four
Basin Indian Tribes. The negotiated SJRRIP document also states:

Due to competition f01 limited water resources in the San Juan River Basin, whenever a
request is made for section 7 consultation, the Department of the Interior will use its
authority to the fullest extent possible so that actions are not taken by federal agencies
requesting such consultation in derogation of the water rights and related rights of the
Tribes signatory to the Cooperative Agreement.

After critical habitat was designated for the endangered fish in the San Juan River Basin in 1994,
FWS requested reinitiation of consultation for ALP and NIlP in the light of that designation.
Two new biological opinions were issued in 1996 with essentially the same conclusions as the
1991 opinions. Again, over Navajo and Jicarilla Apache objections, FWS did not include unused
Indian water rights in the environmental baselines. Earlier that year, the Corps of Engineers
requested consultation with FWS on enlargement of the Red Mesa Reservoir Project in
southwestern Colorado. The Corps allowed the project to increase its annual depletions by

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