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<br />DRAFT -- August 11, 1999 <br /> <br />To implement Section 7, FWS and the National Marine Fisheries Service (NMFS) <br />promulgated regulations that established a process for Federal agencies to consult on the <br />biological impacts of their proposed projects on listed species. Under the regulations Federal <br />agencies must assess the biological impacts of their proposed action(s) on listed species. The <br />action agencies must describe a baseline of e){isting activities that are affecting the listed <br />species and compare these against the impacts of their proposed action. Based on the ESA <br />regulations and a 1981 Solicitor's Opinion, the agencies have not attempted to estimate <br />potential impacts on endangered species of ooknown, yet potential activities by others, <br />including future development of water development projects by Native Americans, even when <br />Native Americans' water rights are senior to those of the interests developing a project on <br />which the action agency and FWS are consulting. Unlike water rights perfected under state <br />law, Indian water rights are not subject to forfeiture due to non-use, and thus may be <br />exercised in the future while retaining their senior priority. However, as a practical and <br />political matter, when a stream system is fully appropriated, it becomes virtually impossible <br />for an Indian tribe to develop its water resources. <br /> <br />Therein lies the dilemma before the United States Govemment and the tribes-- how to protect <br /> <br /> <br />tribes' water rights and conserve endangered species in systems which have been over-utilized <br /> <br />and over-appropriated to the point that species have had to be declared endangered or <br /> <br /> <br />threatened and where unchecked further water development may lead to their extinction. <br /> <br />By memorandum of June 9, 1997, the Secretary directed the Working Group to evaluate this <br />process, including the criteria for the development of environmental baselines. This is the <br />principal focus of our Report and Recommendations. <br /> <br />2 <br />