BOARD01872

• Board Meeting Date: 9/27/1999
• Description: Colorado River Basin Issues - Interior Department's Indian Water Rights Report
• Board Meetings - Doc Type: Memo

DRAFT -- August 11, 1999

50 CFR 402.14(g)(3) and (4). "Effects of the action" in turn requires the longest definition in

the Section 7 regulations, and the expression "environmental baseline" is found therein:

Effects of the action refers to the direct and indirect effects of an action on the species
or critical habitat, together with the effects of other activities that are interrelated or
interdependent with that action, that will be added to the environmental baseline. The
environmental baseline includes the past and present impacts of all Federal, State,
or private actions and other human activities on the action area, the anticipated
impacts of all proposed Federal projects in the action area that have already
undergone formal or early section 7 consultation, and the impact of State or
private actions which are contemporaneous with the consultation process. Indirect
effects are those that are caused by the proposed action and are later in time, but still
are reasonably certain to occur. Interrelated actions are those that are part of a larger
action and depend on the larger action for their justification. Interdependent actions
are those that have no independent utility apart from the action under consideration.

50 CFR 402.02. The baseline is supposed to be a snapshot that depicts the current status of
the species as the consultation commences. Under the regulation it includes the impacts of
past and present actions, plus any future federal actions which have already undergone Section
7 consultation. There is no question that the determination of the baseline is intended to be
an objective and factual exercise. This is understandably important to the Service to assure
that the scientific nature of its biological inquiry is maintained.

Where depletion of the waters of a stream is an environmental effect of the project, and that

depletion may adversely affect listed species in the action area, the environmental baseline

usually takes on the appearance of an inventory of water uses, not unlike a list of water right

holders from first priority to last-- except that unexercised Indian water rights (and some

unexercised non-Indian water rights) are not included. Sometimes gauge readings are used;

sometimes lists of state-permitted and adjudicated water rights are used, whether or not those

rights have been exercised in the recent past; sometimes both methods are used. The baseline

is largely drawn from information provided by the action agency, e.g., the Bureau of

Reclamation, the Corps of Engineers, or the Federal Energy Regulatory Commission. (There

appear to have been inconsistencies in the way those agencies and the Service have calculated

baseline depletion effects in Western streams, apart from their treatment of Indian water

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