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<br />DRAFT -- August 11, 1999 <br /> <br />rights.) Because action agencies have not seen it as their responsibility to determine or <br /> <br />consider unexercised tribal water rights in the past, they have rarely, if ever, included those <br /> <br />rights as part of the information they described in their BAs. But their databases, usually <br /> <br />received from state water resource agencies, may include unexercised and currently unused <br /> <br />non-Indian water rights, sometimes based on the rationale that their exercise is reasonably <br /> <br /> <br />foreseeable, and that no further federal action is needed. Unexercised Indian water rights <br /> <br /> <br />(usually the senior right) are left out of the baseline because they are not an existing impact or <br /> <br /> <br />an impact from a proposed action that has undergone consultation. Action agencies and FWS <br /> <br /> <br />do not include Indian water rights even if they have been adjudicated or recognized by an Act <br /> <br />of Congress if they are not a component of an immediate project. <br /> <br />For example, the Navajo Nation has pointed out that the baseline for the Animas-LaPlata <br />Project (ALP) consultation in 1990-91 included full depletion of the river for the San Juan- <br />Chama Project (SJCP)"which was constructed before enactment of the ESA but is not yet <br />fully contracted; yet the baseline included only those portions of the Navajo Indian Irrigation <br />Project (NIIP) which had been built and were already depleting river flows, even though the <br />Secretary of the Interior had entered into a contract with the Navajo Nation to construct and <br />operate the full project in 1976. NIIP and SJCP were authorized by the same piece of <br />legislation in 1962. The Navajo Nation has complained for years that NIIP funding and <br />construction were far behind SJCP, which had needed Navajo Nation concurrence to proceed <br />in the first place; thus, formulation of the ALP baseline was said to exacerbate a longstanding <br />inequity. Another related example is the situation of the Jicarilla Apache Tribe, whose water <br />rights were settled and quantified by a 1992 Act of Congress. None of the settlement water <br />available for tribal use or marketing from Navajo Reservoir have been included in the <br />baselines for any federal actions in the Basin because they have not been the subject of a <br />project or action for which consultation has been initiated. <br /> <br />27 <br />