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

the anticipated exercise of Indian water rights. As pointed out
in the above Report, inclusion of Indian water rights in the
environmental baseline is no panacea for the future exercise of
those rights.

One member views Recommendations 2.B, 2.C and 2.D as preferable
approaches to Recommendation 2.A. Other members view all four
Recommendations as complementary. Recommendation 2.A does not
have the unanimous support of all members of the Working Group.

By this Recommendation the Working Group is not suggesting that
the action agency or the FWS should disregard Indian water rights
which have not been adjudicated. Tribal comments received by the
Working Group requested that the environmental baseline used in
ESA Section 7 consultations include all clearly colorable senior
Indian water rights; Recommendation 2.A does not go that far.
However, Recommendations 1.A, I.B., I.C, 2.B, 2.C. and 2.D
provide for procedures for agencies to consider the effect of
their actions on unadjudicated Indian water rights. This is an
important issue deserving of further public discussion.

Recommendation 2.B.: Biological opinions on proposed or
existing water projects that may affect the future exercise of
senior water rights, including unadjudicated Indian water rights,
should include a statement that project proponents assume the
risk that the future development of senior water rights may
result in a physical or legal shortage of water. Such a shortage
may be due to the operation of the priority system or the ESA.
This statement should also clarify that FWS can request reinitia-
tion of consultation on junior water projects when an agency
requests consultation on federal actions that may affect senior
Indian water rights.

EXPLANATION: As stated in the preamble to the 1986 ESA Section 7
regulations, the water project proponent's operating plan should
account for the future effects of senior conditional
(unexercised) water rights. This is not a new concept.
Operating plans are developed as part of normal planning to
determine if a proposed new water project is viable and such
plans necessarily include the future water development of
projects with senior water rights which are anticipated by the
project proponents. Thus, proponents of new projects already
assume the risk that their projects will remain viable if
projects with senior water rights corne on line. This
Recommendation memorializes this situation. Additionally, under
the ESA and existing regulations, the FWS has authority to re-
quest reinitiation of consultation with other federal agencies or
bureaus which retain a federal nexus with the water project.

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