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<br />DRAFT -- August 11, 1999 <br /> <br />Recommendation 1.D.: Fish and Wildlife Service should <br />expedite implementation of S.O. 3206. <br /> <br />EXPLANATION: Many of the tribal comments received by the Working <br />Group raised concerns which are addressed in the Secretarial <br />Order. It was understood, when the Working Group's consultation <br />with tribal representatives began in the summer of 1997, that <br />there had not been an opportunity to put the procedures and <br />policies of the Order into full effect. FWS has since taken <br />steps to implement the Order, including a revision to the Section <br />7 Handbook. However, the establishment of implementation <br />protocols and more training and outreach are still needed to <br />implement the Order fully. <br /> <br />OBJECTIVE #2: <br /> <br />The process and criteria utilized in developing environmen- <br />tal baselines for use in section 7 consultations should <br />address the future possible exercise of Indian water rights. <br /> <br />Recommendation 2.A.: The environmental baseline used in ESA <br />Section 7 consultations on agency actions affecting riparian eco- <br />systems should include for those consultations the full quantum <br />of: (a) adjudicated (decreed) Indian water rights; (b) Indian <br />water rights confirmed by a duly enacted federal Indian water <br />rights settlement act; and (c) Indian water rights otherwise <br />partially or fully quantified by an act of Congress. <br /> <br />EXPLANATION: Adjudications of Indian water rights, and the <br />quantification of an Indian water right by a Congressionally <br />enacted water rights settlement, are actions which should be <br />included in the environmental baseline for Section 7 consulta- <br />tions on Western water development. Otherwise, the priority <br />principles of the Western appropriations system may be skewed, <br />and Congressional intent may be undermined. By the time a tribe <br />can exercise its recognized senior right, there may be no <br />remaining resource cushion. Further, failing to consider the <br />future exercise of adjudicated and quantified water rights in <br />Section 7 consultations may result in an inaccurate picture of <br />the long-term effects of a proposed action on listed species. <br /> <br />The Working Group recognizes the need for public dialogue and <br />comment on this issue before this Recommendation is implemented. <br />Other suggestions for eliminating this inequity have included <br />treating the future exercise of Indian water rights as a <br />"cumulative effect" in the preparation of the Biological Opinion, <br />or engaging in "Early Consultation" pursuant to 50 CFR 402.11 on <br /> <br />41 <br />