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

how the alternative will be consistent with the Department's
trust responsibility.

Recommendation 3.e.: When FWS enters formal consultation on
an action by any Interior Department agency, which may either
enable an Indian tribe to exercise its water rights or may result
in significant adverse impacts to the exercise of Indian water
rights, the FWS should treat an affected Indian tribe as a full
participant in the consultation process.

EXPLANATION: This Recommendation is in response to requests by
tribes for a recommendation to establish a peer review process
for certain FWSactions under Section 7. It builds on the
concept set forth in Subsections 3(C) (3) (a) and (b) of the Appen-
dix to S.O. 3206 regarding involvement of a tribe in the Section
7 process. The Secretarial Order allows tribes to participate
fully in Section 7 consultations where BIA is the action agency,
to participate through the BIA where another Interior bureau is
the action agency, and where a non-Interior agency is the action
agency, Interior would encourage the action agency to include the
BIA and affected tribe in the consultation. Implementation of
this Recommendation would allow tribal biologists to participate
in the scientific process and would include invitations to meet-
ings between the FWS and federal action agency, opportunities to
provide pertinent scientific data and to review data in the
administrative record, and to review biological assessments and
draft biological opinions provided by the action agency.

Recommendation 3.D.: During ESA Section 7 consultation in
river basins where there are Indian water rights, the Fish and
Wildlife Service should develop staff capability to understand
Indian water issues, and, in conjunction with the action agency,
should utilize the services of attorneys from the Office of the
Solicitor and the expertise of officials of other agencies to
insure proper consideration of Indian water rights.

EXPLANATION: Because of the complexity of Indian water right
issues and the fact that they are often the subject of
litigation, FWS should develop its own expertise and take maximum
advantage of the other existing expertise from within the
Department. The Office of the Solicitor, as well as the Bureau
of Indian Affairs and other agencies, has expertise that could be
utilized to assure that appropriate consideration to the tribal
interests is provided.

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