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<br />DRAFT -- August 11, 1999 <br /> <br />such as construction. FWS consults with the agencies in the order that agencies come to them <br />with proposals. <br /> <br />In this manner, FWS establishes an environmental baseline of impacts to listed species based <br />on the proposals they have consulted on and existing projects. In practice, therefore, existing <br />water development projects and future projects which have been subject to consultation <br />become part of the environmental baseline which FWS uses, regardless of the project's water <br />rights priority. The Tribes noted that courts have held that Federal water projects are required <br />to be operated consistent with vested, fairly implied senior Indian water rights. Kittitas <br />Reclamation District v. Sunnyside Valley Irrigation District, 763 F.2d 1032 (9th Cir.), cert. <br />denied, 474 U.S. 1032 (1985), and Joint Board of Control of Flathead, Mission and Jacko <br />Irrigation Districts, 832 F.2d 1127 (9th Cir. 1987). They observed that failing to consider the <br />future exercise of such unquantified water rights may further skew the long-term effects of a <br />proposed action on listed species. <br /> <br />FWS recommends operating criteria or mitigation measures on those projects through <br />"reasonable and prudent alternatives" or "conservation recommendations." The tribes contend <br />that, by sequentially including water development projects in its environmental baseline, FWS <br />has in essence altered the historic prior appropriation system. Attorneys for the Ute Indian <br />Tribe and the Jicarilla Apache Tribe posited that the question to be addressed by FWS in the <br />Section 7 consultations on their respective tribal water development projects "will not be <br />whether junior water uses displaced by the Tribe's exercise of its reserved water rights <br />infringe on flows necessary for endangered species and therefore jeopardize the .fish." Rather, <br />the question will be whether the Tribe's new project causes jeopardy despite the fact that the <br />Tribe holds the senior right to use water for its project. <br /> <br />Tribes in the Upper Colorado River Basin uniformly objected to the development by FWS of <br />environmental baselines which include information provided by states on water rights without <br /> <br />13 <br />