BOARD01872

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

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Basin. Following extensive discussions between the Tribe, FWS, Bureau of Reclamation and
BIA, FWS included depletions totaling 235,995 acre feet for the Tribe's reserved water rights in
the baseline, including 149,000 acre feet of tribal depletions in the Duchesne River Basin. The
figures are taken from the tabulation in the 1990 version of the Compact which, as is discussed
above, has been ratified by Congress but not by the Tribe or the State of Utah.

Thereafter, the Service promulgated a designation of critical habitat throughout the entire
Colorado River Basin, including much of the Green River. The designation in Duchesne River
Basin was for the lower 2Y, miles of the River for only the razorback sucker. The Tribe objected
to the designation, particularly in the Duchesne River, on several grounds including the lack of
any scientific data to support the designation and the failure to assess the economic impacts of
the designation on the Tribe and its ability to develop tribal resources. The designation was
finalized without change and, based upon that designation, the Service "reinitiated" consultation
on all projects with a federal nexus in the Duchesne River Basin.

Reclamation estimates the virgin flow of the Duchesne River to be 768,000 acre-feet per year. A
combination of all existing and proposed Federal projects in the Duchesne River Basin, plus
120,000 acre-feet of State and private actions identified by the Utah State Engineer's Office,
results in total depletions of 567,000 acre-feet. That leaves about 201,000 acre-feet.

The environmental baseline for the initial draft of the biological opinion on all projects with a
federal nexus in the Duchesne River Basin included 130,000 acre feet of depletions from the
exercise of tribal reserved water rights. The Tribe objected contending that the environmental
baseline in the Flaming Gorge Reservoir biological opinion had included 149,000 acre feet of
tribal depletions from the Duchesne River and tbat no explanation of the rationale for reducing
the amount by 19,000 acre feet had been provided. The FWS described its decision to include
the Tribe's entire depletion in the earlier biological opinion as a mistake, The FWS stated that
under the Section 7 regulations future water projects are not included in the environmental
baseline unless they have been subject to Section 7 consultation. The Tribe challenged this
stated policy noting that FWS had included une"ercised junior water rights in the baselines for
both the Flaming Gorge biological opinion and the draft opinion for the Duchesne River Basin.
The FWS explained that the projects holding the junior water rights had facilities in place to
divert their entire water right if and when they decide to do so. In response, the Tribe argued,
and the BIA confirmed, that facilities were in plllce on the Reservation to divert and deplete the
entire 149,000 acre-feet available to the Tribe under its reserved water rights. The Tribe's
position was that FWS had to treat the Tribe's water right as it had treated various junior water
rights held by non-Indians and, under its stated policy, include the full amount of the Tribe's
reserved water--149,000 acre feet of depletions. As a result of these discussions, BIA revised the
data it had provided to FWS and the July 1998 fmal biological opinion for the Duchesne River
Basin included the additional 19,000 acre feet as an historic tribal depletion. In addition, FWS
included 25,300 acre feet of proposed depletions from the Uintah and Upalco replacement
projects as part of the action under consultation.

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