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<br />DRAFT -- August 11, 1999 <br /> <br /> <br />were used to purchase replacement water from the Central Arizona Project (CAP) to the <br /> <br />decreed downstream water users, permitting these water users to forego making calls on the <br /> <br />water stored in the reservoir. However, in 1999 spring drought conditions were worse, and <br /> <br />the San Carlos Apache Tribe sued the BrA and FWS to halt water releases and to protect the <br /> <br /> <br />listed species. After the Tribe's request for inuunctive relief was denied, Congress provided <br /> <br /> <br />funding for the purchase of more (CAP) replacement water. <br /> <br />During our Tribal Consultations, tribes made a number of recommendations concerning the <br />substantive issues and concerns: <br /> <br />(I) the ESA should be amended to provide that Section 7 is inapplicable to agency <br />actions on tribal lands or concerning tribal resources unless the Secretary has first <br />considered all potential impacts on the affected tribe( s), and if adverse impacts to the <br />affected tribe(s) are identified by the Secretary, Section 7 should not apply to such <br />proposed agency action unless the FWS can demonstrate by clear and convincing <br />evidence that the action will jeopardize the existence of the species or adversely <br />modify its habitat; <br /> <br />(2) the ESA regulations should be amended to provide that when designating critical <br />habitat of an endangered species, if an alternative to the critical habitat designation <br />would be equally effective in preserving the species, and would concurrently protect <br />Indian tribal interests in their federally reserved resources, the FWS must choose that <br />alternative; <br /> <br />(3) FWS should be required to examine the impacts of critical habitat designation on <br />tribal resources and tribal economies; <br /> <br />16 <br />