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

EXPLANATION: By the time a federal agency initiates Section 7
consultation with the Fish and Wildlife Service on a proposed
action which may affect the future exercise of Indian water
rights, it may be too late to provide for adequate consideration
of those rights. One way to provide for earlier attention to
those rights is to require that they be addressed by agencies in
the course of programmatic NEPA compliance, or otherwise before
the potential adverse effects of development on listed species
has been identified. This is expected to facilitate subsequent
Section 7 consultation with FWS. Agencies of the Department of
the Interior are already required to consider the effects of
their actions on Indian trust assets under Secretarial Order 3175
(November 8, 1993; since incorporated into the Departmental
Manual.) This should be required of all federal agencies.
Implementation of this recommendation would also be in keeping
with the provisions of the Presidential Memorandum of April 29,
1994, on Government-to-Government Relations with Native American
Tribal Governments.

Recommendation 1.C.: The Department should take appropriate
action to require that written requests to initiate formal
Section 7 consultation on proposed or existing water projects
include evaluations of the potential effects of the proposed
action on listed species or critical habitat which take into
account the potential exercise of senior water rights, including
senior Indian water rights. Such action should include but not
be limited to an amendment of tbe ESA Section 7 handbook, a
Secretarial directive, or amendment of the ESA regulations. The
evaluation should be included in any Biological Assessment or
equivalent document.

EXPLANATION: The 1986 preamble to the FWS regulations governing
the Section 7 consultation process states "Federal actions ...
that possess senior water rights should be considered while
analyzing the effects of the action." This admonition was
intended to cure the problem raised by certain water users who
argued that because FWS may be requested to consult on projects
with junior water rights years before new projects with more
senior water rights are subject to consultation, all of the
remaining water available under the ESA could be committed to
junior projects, and the ESA would preclude construction of
senior projects. They claimed that this result would conflict
with the States' priority systems. This Recommendation reflects
the need to implement and address this continuing concern of all
water interests with unexercised senior water rights. As an
initial step, FWS should raise these issues in the informal
consultation stage by bringing the potential for unexercised
senior water rights to the attention of the action agency prior
to initiation of formal consultation.

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