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<br />DRAFT -- August 11, 1999 <br /> <br />confirming whether such water rights are actually in use, but do not similarly recognize and <br />take into consideration senior Indian reserved water rights (developed or not). San Juan River <br />Basin Tribes expressed frustration that the environmental baselines used for biological <br />opinions issued after the enactment of the 1988 Colorado Ute Indian Water Rights Settlement <br />Act and the 1992 Jicarilla Apache Tribe Water Rights Settlement Act failed to include future <br />depletions necessary to satisfy the water rights ratified by Congress in these settlements. <br />These Tribes were also critical of the 1994 FWS critical habitat designation. They claim the <br />designation is based on the historic range of the native fish (razorback sucker, Colorado <br />squawfish, humpback chub, and bonytail chub), rather than focusing on the specific habitat <br />that is essential for the continued survival of these fish species. The Tribes asserted that FWS <br />failed to consult with them prior to issuing the final rule on critical habitat designation, and <br />that FWS had failed to analyze the effect of the designation on each tribal economy, in light <br />of the adverse effects the Tribes believe the critical habitat designation may have on the <br />reserved water rights of the San Juan River Basin Tribes. This is discussed in some detail in <br />the Case Study (Appendix A). <br /> <br />Tribes expressed frustration about actions taken and decisions made in the Section 7 <br />consultation process which appear to the Tribes to be based on data that is either insufficient <br />or not credible, and which could result in irreversible harm to Indian water projects. For <br />example, the White Mountain Apache Tribe recounted that construction of a reservation <br />community water project by the Indian Health Service (mS) in 1990 was prevented from <br />going forward while the Tribe gathered the biological information necessary to document the <br />presence or absence of a listed species. In the meantime, the IHS constructed an alternative <br />water supply project which cost four times the cost of the initial project. <br /> <br />Another concern has been that Departmental and tribal efforts to negotiate settlements of <br />Indian water right claims can be frustrated by application of the ESA to proposals which <br />would enable tribes to pursue water resource development projects, thereby trading "paper" <br /> <br />14 <br />