BOARD02414

• Board Meeting Date: 9/25/2000
• Description: Directors' Reports
• Board Meetings - Doc Type: Memo

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Senate floor action after the August recess. On July 19, by voice vote, the House Resources Committee
reported H.R. 3112. On July 26, the Senate Energy and Natural Resources Committee discharged S.
2508.

While negotiations with the Clinton Adnrinistration and others continue, McInnis has amended
his bill to address some of their concerns. H.R. 3112'does not specifically de-authorize the original
project, but explicitly states that construction of any of its other features would require authorization. If
there are cost overruns, the bill allows non-Indian water users to chose either to pay more in the case of a
deficit or take less water. H.R. 3112 does not include the environmental compliance sufficiency
language opposed by the Administration and others as limiting future judicial review.

The sufficiency language in S. 2508 reads, "Nothing in this Act shall be construed to
predetermine or otherwise affect the outcome of any analysis conducted by the Secretary or any other
Federal official under applicable laws." It refers to requirements related to the protection of the
environment applicable to the construction of the proposed facilities, including the National
Environmental Policy Act, the Clean Water Act, and the Endangered Species Act. Under congressional
findings the bill says, "In considering the full range of alternatives for satisfying the water rights claims
of the Southern Ute Indian Tribe and Ute Mountain Ute Indian Tribe, Congress has held numerous
legislative hearings and deliberations, and reviewed the considerable record including the following
documents: (A) The Final EIS No.1NT-PES-80-18, dated July 1, 1980; (B) The Draft Supplement to the
PES No. INT-DES-92-41, dated October i3, 1992; (C) The Final Supplemental to the PES No. 96-23,
dated April 26, 1996; and (D) The Draft Supplemental EIS, dated January 14, 2000.

Under Section 3, the bill adds: "[I]n any defense to a challenge of the Final Environmental
Impact Statement, or...compliance with the National Environmental Policy Act of 1969 or the Federal
Water Pollution Control Act, and in addition to the Record of Decision and any other documents or
materials submitted in defense of its decision, the United States may assert in its defense that Congress,
based upon [its] deliberations and review... has determined that the alternative described in such Final
Statement meets the Federal government's water supply obligations to the Ute tribes under this Act in a
manner that provides the most benefits to, and has the least impact on, the quality of the human
environment."

Section 4 states, "Nothing in this section shall be construed to alter, amend, or modify the
authority or discretion of the Secretary or any other Federal official under the Endangered Species Act of
1973 or any other Federal law." It then adds, "[I]n any defense to a challenge.of the Biological Opinion
resulting from the Bureau of Reclamation Biological Assessment, January 14,2000, or the compliance
with the Endangered Species Act of 1973..., the United States may assert in its defense that Congress,
based on [its] deliberations and review...has determined that constructing and operating the facilities
described...meets the Federal government's water supply obligation to the Ute tribes under that Act
without violating the Endangered Species Act of 1973.... This subsection shall only apply if the
Biological Opinion referred to...or any reasonable and prudent alternative suggested by the Secretary
pursuant to section 7 of the Endangered Species Act of 1973... authorizes an average annual depletion of
at least 57,100 acre-feet of water." (Parts of this story from WSWC newsletter.)

Yampa and White River Basin

Yampa Water Management Planning: On Aug. 30 and 31 a facilitated meeting was held in
Craig to provide the USFWS with a consensus recommendation about how the Upper Colorado River
Endangered Fish Recovery Program will allow water development in the Yampa Ri ver Basin to continue
for the next several decades while the fish species are recovered.

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