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BOARD01872
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Last modified
8/16/2009 3:08:15 PM
Creation date
10/4/2006 7:04:05 AM
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Board Meetings
Board Meeting Date
9/27/1999
Description
Colorado River Basin Issues - Interior Department's Indian Water Rights Report
Board Meetings - Doc Type
Memo
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<br />DRAFT -- August 11, 1999 <br /> <br />Section 7 consultation requirements at a later date. 51 F.R. 19933.3 This is another concern <br /> <br /> <br />of Indian Tribes, who believe that future development of senior Indian reserved water rights <br /> <br />should also be factored into either the baseline or cumulative impact analyses for other federal <br /> <br /> <br />projects on the same stream. <br /> <br />A statement in the preamble to the 1986 ESA rulemaking appears to offer a partial solution to <br /> <br />the Tribes' concern. The statement was in response to a comment that State and private water <br /> <br />rights under State water law which can "reasonably be expected to occur" should be consid- <br /> <br />ered as cumulative effects. The Service agreed, adding, <br /> <br />Further, the Service believes that Federal actions, whether authorized, funded, or <br />carried out by Federal agencies, that possess senior water rights should be considered <br />while analyzing the effects of the action. In order to determine the effects of the <br />action when a water project is the subject of consultation in a State which follows the <br />prior appropriation doctrine, the project's operations plan should indicate the priority <br />of the project's water rights under State law and account for the future effects of <br />senior conditional water rights. 51 F.R. 19933. <br /> <br />Implementation of that proposal would not necessarily clear the way for the Indian water <br />project to proceed in accordance with the ESA, but it would have the effect of making it <br />more difficult for a "non-Indian project"-- or a competing "Indian project", for that matter-- to <br />jump ahead of unexercised Indian rights in order to pass Section 7 muster. Tribal advocates <br />argue that the federal trust responsibility requires that any decision to move forward with a <br />Federal or non-Federal non-Indian water project on a stream with Indian rights must <br />necessarily consider and mitigate any adverse impact on future exercise of the Indian right. <br />The Working Group members agree that even if unexercised tribal water rights are not <br />included in the baseline against which impacts of federal actions under consultation are <br />measured for jeopardy decisions, they should be considered in the operational plan of the <br /> <br />This rationale was the product of a 1981 opinion of the Associate <br />Solicitor for Conservation & Wildlife, 88 I.D. 103, issued after Solicitor <br />Coldiron withdrew a 1978 opinion of Solicitor Krulitz on "Cumulative Effects <br />Analysis under Section 7 of the [ESA] ", 85 I.D. 275. The 1986 regulation <br />incorporates the narrower definition of "cumulative effects" propounded in the <br />1981 opinion. <br /> <br />30 <br />
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