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<br />DRAFT -- August 11, 1999 <br /> <br />of species recovery necessary to pay the way for the new, but belated Indian projects. The <br />Service points out, however, that there have been some recent successes among its recovery <br />programs. For example, the Upper Colorado River Recovery Implementation Program is <br />improving conditions for listed fish species, and some fish populations are increasing. <br /> <br />Inclusion of Indian water rights in the environmental baseline for determining the effects of <br />another project by no means creates an ESA entitlement to completion of an Indian water <br />project. The baseline for assessing the effects of a federal action never contains the impacts <br />of that action itself, even if those impacts have already been included in the baseline for <br />another project. The inclusion of Indian w;iter rights in an environmental baseline may, <br />however, prevent another federal action from exhausting available water resources, short of <br />jeopardizing listed species, before the Indian water right is exercised. The converse fear is <br />that excluding Indian water rights from a Section 7 baseline may mean that listed species in <br />the stream system may be taken to the edge of jeopardy before consultation on an Indian <br />project. Many tribes see the addition of their water rights to Section 7 baselines as honoring <br />their priority under the Western prior appropriation system. But that in no way guarantees <br />that the ESA still won't be an obstacle to future exercise of Indian water rights. Indeed, the <br />inclusion of all unexercised Indian rights in the baseline for an Indian project in a damaged <br />riparian habitat may mean that none of the projects will avoid a jeopardy or adverse modifica- <br />tion call. <br /> <br />Another Section 7 regulatory definition illuminates further the Tribes' dilemma. "Cumulative <br />effects" is defined as "those effects of future State or private activities, not involving Federal <br />activities, that are reasonably certain to occur within the action area ...." S 402.02. Future <br />federal projects, including Federal projects to develop Indian water supplies, are not included <br />in the definition of "cumulative effects" for the stated reason that they will be subject to <br /> <br />29 <br />