BOARD01872

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

Despite active attempts by the FWS to negotiate a resolution with SCLDF, litigation eventually
ensued. As a result of the litigation, on October 22, 1992, the court ordered the FWS to publish a
proposed rule regarding the designation of critical habitat; however, it did not set a date for the
issuance of the final rule, The proposed rule included critical habitat for the Colorado squawfish
and razorback sucker along the San Juan River within the Navajo Reservation and for the
razorback sucker in the lower 2 II, miles of the Duchesne River in Utah, a tributary of the Green
River. Because FWS did not have sufficient time to complete its biological rationale or
economic analysis before the court-imposed deadline, the proposed rule did not include this
information. The agency later published a draft Biological Support Document for public review
on September 15, 1993, describing the scientific basis for the areas proposed to be designated as
'critical'.

The plaintiffs attempted to have a final rule issued without any public Comment on the economic
analysis which was stilI in the process of being developed. However, on November 10, 1993, the
court ordered FWS to provide: (I) for comment periods on a still unpublished 1993 draft
economic report and on the process it would use to exclude any areas from the designation; and
(2) to publish the final rule by March 15, 1994. The draft economic report was published that
month, and it concluded that although some individual States had small net negative economic
impacts, the designation would have a beneficial effect on the economy of the Colorado River
Basin, Based on similar findings in the final economic report of January 18, 1994, FWS did not
exclude any areas from critical habitat because of potential economic impacts,

After three comment periods and II public hearings, the final rule was published on March 21,
1994. In the final rule FWS discussed its consideration of the comments made by the four San
Juan River Basin Tribes during the public comment period and formally responded to these in
the preamble to the final rule. The Tribes stated that critical habitat should not include tribal
lands because they are sovereign lands, designation would violate FWS's trust responsibility, the
economic analysis ignored distinct differences between State and tribal economies, and the
designation would add another ESA barrier to the completion of NIIP. The FWS' s responses
acknowledged the existence of the trust responsibility and stated that the ESA contains no
categorical exemption for tribal lands from critical habitat designation and that any Federal
agency actions on tribal lands are covered by Section 7 of the ESA. The response also stated that
FWS would work with Tribes to develop RPAs to address any finding ,of adverse modification of
critical habitat on tribal lands,9

9 On the issue of the effect of critical habitat designation on tribal economies and specifically
on the NIIP, FWS responded:

While it is true that there are fewer opportunities for displaced workers
on tribal lands, very few of the direct impacts, other than the Navajo
Indian Irrigation Project, are tied to tribal economies. In the case of the
Navajo Tribe, the impacts are reported in the New Mexico results.

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