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., Mr. Ken Beck April 8, 2002 Page 2 Also, it is not clear to the Commission that the ADEIS assumes that the Nation will not develop its full entitlement to the Navajo Reservoir Supply pursuant to its contract with the Secretary that was authorized by Public Law 102-441. The ADEIS simply indicates that the preferred aiternative wouid aiiow the now recommendations for the San Juan River adopted by iht: Sail Juan River Basin Recovery Implementation Program (SJRBRlP) to be met under the baseline depletions scenario analyzed. The Fish and Wildlife Service (Service) has stated that the flow recommendations are not necessarily inviolate, and NEPA and ESA compliance on a future water use project of the Nation can evaluate the impacts of the projected use in light of the flow recommendations, progress towards recovery of endangered fish under the SJRBRlP, hydrology modeling uncertainties, uncertainties in the derivation of the flow recommendations, Indian trust responsibilities of the federal govemment to the Nation, adaptive management, and other factors. To this end, the Bureau of Reclamation (Reclamation) must retain the flexibility to operate Navajo Dam within the limits of the preferred alternative's minimum and maximum release rates to meet its contractural obligations and meet the SJRBRlP's flow recommendations or a reasonable alternative, even if the reasonable alternative is not defined until some later time through the adaptive management programs of the SJRBRlP and Reclamation or through an ESA Section 7 consultation. However, it appears to the Commission that under the Service's regulations, the future use on the Nation's lands as described in the ADEIS of approximately 8,500 acre-feet of Navajo Reservoir Supply that is not currently leased to other users and remains undeveloped does not stand the test for inclusion in the baseline depletion scenario at this time. Said future use does not have a past or present impact on the San Juan River, has not already undergone formal or early ESA Section 7 consultation, and will require future federal action. The Commission is aware that informal Section 7 consultation is occurring between the Bureau of Indian Affairs (BIA) and the Service on the NGWSP, which also is not in the baseline depletions used in the ADEIS, but is not aware of any such consultation occurring on the Jicarilla Apache Navajo River Water Development Plan. Nonetheless, the Commission agrees that there exists inconsistencies in baseline depletions used in the ADEIS, but not the inconsistencies alleged by the Jicarilla Comments. The baseline depletions for non-Indian irrigation uses in New Mexico are not based on undeveloped water rights. Indeed, lands fallowed for extended periods of time, abandoned or not developed prior to 1948 were not adjudicated water rights under the Echo Ditch Decree. Further, the irrigated acreages used to derive the baseline depletions for non-Indian irrigation uses are substantially less than the water rights acreages adjudicated by the Echo Ditch Decree. The non-Indian baseline acreages for each identified geographic area are based on the documented maximum total acres irrigated within that area within any given year during the period used for the hydrologic modeling (1929-1993). The actual maximum total acres irrigated within an area may have exceeded the documented maximum total acres irrigated as there were only few years for which data on irrigated acres were available. In any case, the irrigation of the baseline acres reflects the past and present actual river flow impacts that occurred due to irrigation within a geographic area or project during the period of data analysis. The difference between the baseline acres and the water rights acreages reflects irrigation rotation and other land management practices that result in some lands being fallowed in any given year. For the non- 00711