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

The current formula for determining environmental baselines is seen by southwestern Tribes

as turning the Prior Appropriation System for Western water rights on its head. This is

particularly critical for Indian water rights which have priority dates no later than the

recognition of their reservations, which pre-date most water resource development in that

basin. Water resource planning efforts utilize hydrologic determinations which typically

acknowledge senior water rights as having priority over the junior rights which would be

developed with a project. However, since senior Indian water rights are often unadjudicated,

or have received only recent Congressional recognition in the form of Indian water right

settlement legislation, water resource planning has not always factored them into the process.

The ESA regulation which includes existing water uses in the baseline, no matter the priority

of that use in the appropriation system, exacerbates that tribal dilemma. Accordingly, the

provision that gives a baseline status to existing projects and projects which have already

undergone Section 7 consultation is seen by southwestern Tribes as threatening senior Indian

rights which have not been subject to the Section 7 process, for whatever reason.

The Tribes believe that inclusion in the baseline of the past development of junior non-Indian
rights confers a right on those who have degraded the natural watershed, and that the Indian
rights may not be fully exercised because the federal actions necessary to effect those rights
may be likely to jeopardize the listed species when those actions are measured against past
depletion and contamination of the common water supply by non-Indian use. There is, of
course, no simple way to neutralize the effect of past activities whose impacts are part of the
baseline when federally-funded Indian water projects are under consultation. To Tribes, a
particularly disturbing aspect of this scenario is that the cost of mitigating past non-Indian
degradation of a riparian ecosystem has come out of funding earmarked for the Indian project
(e.g., NIIP and CUP), thereby raising latter-day questions regarding the financial feasibility of
the Indian project. Counsel for the Navajo Nation has commented that the conditions and
requirements in FWS Biological Opinions "usurp limited funding available for the develop-
ment of Indian water rights." Tribes have advocated taxing the old projects to pay the cost

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