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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 />considered, (3) the action consulted on has been modified and causes impacts not previously <br /> <br /> <br />considered, or (4) a new species is listed or new critical habitat is designated. This means that <br /> <br />reinitiation would be triggered if an RP A is not fully implemented or if the species or habitat <br /> <br /> <br />protection measures previously included in the action consulted on are eliminated. <br /> <br />The reinitiation process provides some opportunity for the recognition of the seniority of <br /> <br /> <br />Indian water rights. When consultation on a tribe's project is requested, FWS could reopen <br /> <br />consultations on non-Indian water projects with water rights junior to a tribe and which <br /> <br /> <br />pursuant to existing Biological Opinions had been allocated a portion of the remaining <br /> <br />"resource cushion", as long as there remains a federal nexus to that junior project. Such <br /> <br />reinitiation would permit FWS to revise the baseline used in the previous consultation by <br /> <br />including the operation of the tribe's senior water right when redetermining the impacts of the <br /> <br />non-Indian project. The operation of the Western water rights priority system should resolve <br /> <br />the situation in favor of the tribe if there is not enough water physically available to supply <br /> <br /> <br />both projects and meet endangered species needs. <br /> <br />The tribe could also benefit if enough water would be physically available but the operation <br />of both projects would cause additive impacts on listed species or habitat. In that situation, <br />the non-Indian project could be required to implement additional reasonable and prudent <br />alternatives. However, reinitiation only applies if there is still a sufficient federal nexus to the <br />action to enable the action agency to exercise some discretion to reinitiate consultation. We <br />recognize that requiring new RP As for a project which is already constructed and relied upon <br />by its beneficiaries and which would materially increase costs or water yield would be very <br />controversial and difficult. <br /> <br />Moreover, because projects which make possible the use of tribal water rights usually involve <br />the BrA or Reclamation, rather than a permitting agency, such tribal projects continually <br />remain subject to reinitiation and Section 7' s substantive and procedural requirements. Those <br /> <br />35 <br />
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