BOARD01872

• 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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DRAFT -- August 11, 1999

Recommendation 2.C.: Biological opinions should include
requests that federal action agencies retain reinitiation author-
ity so that consultation can be reinitiated in the future when
consultation is initiated on any other federal action which would
allow the exercise of a senior water right, including a senior
Indian water right, in the same basin.

EXPLANATION: This Recommendation aids in implementation of
Recommendation 2.B. For example, non-Interior agencies such as
the Corps of Engineers (404 permits) or the Environmental
Protection Agency (NPDES permit) may be federal action agencies,
but they may not be able to reinitiate consultation unless that
responsibility is retained as part of the initial Section 7
consultation.

Recommendation 2.D.: When consultation is reinitiated
pursuant to Recommendation 2.C., the project proponents for the
reinitiated project should be required to demonstrate how their
project can be operated consistent with the ESA without injuring
senior water rights, including senior Indian water rights. The
new biological opinion on the reinitiated project should include
a revised baseline which accounts for the exercise of the senior
water rights of the new project.

EXPLANATION: This is the third of three interrelated
Recommendations, explaining what should occur when consultation
is reinitiated on projects with junior water rights. Even if the
junior project's operating plan accounted for the future
development of senior water rights, it is unlikely that the plan
predicted accurately the specifics of the operations of the
subsequent senior project. Inclusion of the senior project
operations in the baseline of the reinitiated consultation on the
junior project will provide an opportunity to more accurately
determine the impa€t of the junior project on the species and its
habitat.

Recommendation 2.E.: Agencies participating in Section 7
consultations in Western stream systems should assure, to the
extent practicable, that environmental baselines for water use be
based on uniform and equitable standards.

EXPLANATION: As discussed on page 26 of this Report, even though
unexercised Congressionally recognized Indian water rights are
not included in environmental baselines, many such baselines have
included unexercised and currently unused non-Indian water
rights, often unadjudicated. For example, baselines have

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