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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The Tribe asserts that, like any Section 7 consultation, the RIPRAP fails to protect the Tribe's
legal right to fully exercise its senior federal reserved water rights. The Tribe further asserts that
application of the RIP as an RP A continues to displace the Tribe's senior priority by providing
ESA clearance for the development of projects with junior water rights without providing any
protection of the Tribe's right to develop its senior water rights in the future. In general, the
Tribe believes that the RIP fails to provide:

· The certainty that its senior priority is protected and preserved. Implementation
of the Section 7 consultation process even under the RIPRAP has the effect of
subordinating tribal water rights to other projects that have junior rights.

· The certainty that the Tribe can utilize its water when and for the purpose for
which it is needed. Implementation of me Section 7 consultation process under
the RIPRAP impedes and may in fact thwart future tribal water development.

· The certainty that the flexibility guarllI1teed by the reserved water rights
doctrine is preserved. Implementation of the Section 7 consultation process, even
under the RIPRAP, impedes the Tribe's :lbility to change the point of diversion,
place of use, or nature of use for its water.

· Recognition of the legal distinctions between the Tribe's reserved water rights
and state appropriated water rights; and

· Protection from the implementation of depletion charges when the Tribe seeks to
develop a portion of its water rights, rights which are senior and are held in trust by the
United States for the Tribe's beneficial use.

The Tribe believes that its lack of influence on the various RIP committees leaves it with little
support to assure that the necessary steps are funded and completed to enable development of
tribal water that is designated as a "new depletion" despite its senior priority.

The RIP also provides that proposed projects with new depletions which wish to rely on the RIP
as an RP A, pay a one-time fee of about $14.00 per acre-foot depletion toward the costs of the
Program. The Tribe contends that exercise of its reserved water rights should not be treated as a
"new depletion", and that the fee is an unlawful charge on the development of the Tribe's trust
resources. Federal agencies have agreed to waive these depletion charges for:l tribe if it
develops alternative measures for mitigating the impacts on endangered fish of water
development that creates a new depletion.

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