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'1 PRELIMINARY DRAFT - SUBJECT TO CHANGE - 05/13/99 Settlement Act of 1988. In the No Action Alternative these agreements could be voided. The two tribes and the other water users on the Animas and La Plata Rivers would have the option to renew the General Stream Adjudication in the District Court, Water Division No.7, State of Colorado. In that event the two tribes and the United States as trustee for the tribes would present evidence of tribal past, present and future water uses, including irrigation. The tribes would be seeking senior rights, with priority dates of either 1868 or "Time Immemorial." The other parties would also be required to present evidence supporting their claims. General Stream Adjudications typically span several years and can cost the major parties tens of millions of dollars. To the extent that the tribes succeeded in asserting their claims they would then be able to enforce the seniority of their water rights, thereby shutting down junior users. If the negotiated Settlement Agreement is not completed and the tribes litigate their water rights then the rights ultimately awarded the tribes will not have the limitations that rights under the Settlement Agreement would have. For example, under the Settlement Agreement the tribes agree to subordinate their project reserved water rights to all water rights senior to the Animas-La Plata Project [U.S. Bureau of Reclamation, Attachment V, p. 15]. An adjudicated tribal water right, in contrast, would likely carry an 1868 or earlier priority date. As a further example, the tribes agreed in the Settlement Agreement to be bound by State Law in determining whether it could lease water off the reservations or outside the State [U.S. Bureau of Reclamation, Attachment V, p. 60]. In the absence of the Settlement Agreement the tribes would likely contend that they were subject only to federal law in determining where they could lease water. The federal participation in the Settlement Agreement and ALP itself provides the requisite federal action that triggers the NEP A and ESA requirements. Without the Agreement or a federally-funded ALP, the tribes could decide to use their own funds to build irrigation or other projects that would not be subject to those requirements. If it were consistent with the tribes adjudicated rights, the tribes could decide to deplete more water than the 57,100 afy depletion in the Fish & Wildlife Service "Reasonable and Prudent Alternative" [Federal Register, p. 177]. The tribes would also not be required to consider selenium concentrations in any irrigation return flow from a tribally-funded project. The San Juan River Basin Recovery Implementation Program is designed to be consistent with ALP. If the Settlement Agreement is not completed the tribes would have the option of asserting their very senior water rights in the San Juan River Basin. In that event other, more junior water users would bear the burden of limiting depletions in order to protect fish flows and meet ESA requirements. The issue of exactly who would have to forego depletion rights to satisfY the ESA would very likely become a protracted interstate court battle. 8