BOARD01872

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

almost 1,000 acre-feet for a one-time depletion charge of $50,000. The BIA and the State of
New Mexico expressed concern that allowing such an additional depletion would make it more
difficult to find water to complete NIIP and would allow this project to "leap-frog" past NIIP
since a completed NIIP did not appear in the environmental baseline,

In 1998 the Biology Committee of the SJRRIP presented the Coordination Committee with draft
flow recommendations for the endangered fish based on the seven years of research required by
the RP As for ALP and NIIP, The Coordination Committee subsequently adopted these
recommendations, which in effect found that an additional 122,000 acre-feet may be made
available for depletion without jeopardizing the San Juan River populations of the endangered
fish. In early 1999 the BIA prepared a new Biological Assessment on completion ofNIIP
construction. That was submitted to FWS on June 14 along with a finding that completion of the
project "may affect, but is not likely to adversely affect" listed species or critical habitat, based
on the SJRRIP flow recommendations. FWS concurred in that finding on July 14, thus
concluding infonnal consultation on the project. The Jicarilla Apache Tribe meanwhile
expressed the concern that ifNIIP utilized all of the additional 122,000 acre-feet, that would
effectively foreclose the Tribe's exercise of its settlement water rights out of Navajo Reservoir.
The two Tribes have met to discuss options for Jicarilla Apache use of Navajo Reservoir water,

B. CRITICAL HABITAT DESIGNATIONS

General Background

The ESA requires critical habitat to be designated by regulation to "the maximum extent prudent
and detenninable" at the same time a species is listed as threatened or endangered, 16 U.S.c.
I 533(a)(3), Critical habitat contains the physical or biological features essential to the survival
and recovery of a species which may require special protection. The designation is to be based
on the best scientific data available. When the FWS does not have sufficient scientific data to
designate critical habitat at the time of a final listing, the FWS is granted an additional year
before it is required to make a designation based on the data that is available, If the FWS
determines that it is "not prudent" to designate, designation is not required. "Not prudent"
findings are made when the designation will increase the threat to the species or is not beneficial,
50 CFR 424. 12(a) (1),

Other listing actions under the ESA require the exercise of purely scientific judgment. Critical
habitat designations, however, involve consideration of economic impacts and other relevant
effects ofthe designation, 16 U,S,C. 1533(b)(2), The FWS believes that only the economic
impacts of the critical habitat designation itself are to be considered, not the economic impacts of
the listing of the species as endangered or threatened. Therefore, most economic impacts of
designation are considered insignificant. Geographical areas may be excluded from the

19