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<br />DRAFT -- August 11, 1999 <br /> <br />project being consulted on, consistent with the above-quoted preamble to the 1986 ESA <br />regulations. <br /> <br />One problem with factoring the Indian water right into the environmental baseline, or <br />calculating appropriate consideration of that right in progranunatic planning, is that on many <br />streams the Indian rights have not been adjudicated-- notwithstanding the pendency of general <br />stream adjudications for decades. It may not be difficult to determine that the Indian right, or <br />a particular Tribe's right, is senior to all other rights; but the quantum of that right or the <br />impact of the operation of that right will no doubt be a matter of strong debate. If the U.S. <br />has filed a claim of right on the Tribe's behalf in an adjudication, it may be possible to factor <br />an amount related to that claim into the Section 7 process. This might invite judicial review <br />of the merits of an Indian reserved water right claim in the context of a court challenge to <br />implementation of a Biological Opinion, a growing form of litigation since the Supreme <br />Court's 1997 decision in Bennett v. Spear. Another complication is determining the relative <br />rights of multiple tribal water right claimants on interstate stream systems. These concerns do <br />not mean that the Secretary should not have some discretion to factor senior water rights into <br />the process in recognition of both his trust responsibility and the Western water doctrine of <br />prior appropriation. But factoring in senior water rights cannot reverse the decline in recent <br />decades of riparian modification that led to species decline and endangerment for riverine <br />dependent species throughout the west. In any event, in an already over-appropriated and <br />significantly modified basin, factoring senior Indian water rights into the baseline does little or <br />nothing to enable a Tribe to develop its own resources, only to prevent others from leap- <br />frogging over tribal rights. <br /> <br />A hard look at the manner in which baselines are developed may be called for. Any <br />evaluation should be done in conjunction with states which administer water right systems. <br />Difficult and potentially controversial judgment calls may have to be made. For example, <br />should the baseline include all state-permitted water rights in a stream system, or only those <br /> <br />31 <br />