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<br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />r <br />I <br />I <br /> <br />000340 <br /> <br />Secretary regarding Tribal storage and water transfer activities, As stated above, the Department <br />feels that there has been progress in helping the Tribes create irrigation infrastructure or otherwise <br />put their CAP water to use and is committed to moving forward with this program, Only <br />authorized entities can store water under this rule to support an interstate water transaction. No <br />holders of CAP allocations have a right to store this water for an interstate transaction unless they <br />can qualifY as an authorized entity under this rule. Only unused water that is not requested by an <br />entitlement holder (including tribes) can be stored to support a Storage and Interstate Release <br />Agreement. With respect to the development ofICUA, the rule requires the Storage and <br />Interstate Release Agreement to describe the notice given to entitlement holders, including Indian <br />tribes, of opportunities to participate in the development ofICUA <br /> <br />Ground Water Issues <br /> <br />Comment: Because banked water is fungible, the rule should address both intrastate and <br />interstate water storage to preclude a Storing State from circumventing any restrictions that the <br />Department might impose on the storage or recovery of water stored under an Interstate Storage <br />Agreement (now termed a "Storage and Interstate Release Agreement"). Several respondents <br />expressed concern that an authorized entity may store water in an aquifer that is hydraulically <br />connected to an aquifer that holds Tribal water. <br /> <br />Response: The final rule specifies in ~ 414.3(c) that the Secretary will consider various <br />factors in reviewing a proposed Storage and Interstate Release Agreement, including potential <br />effects on trust resources, potential effects on entitlement holders, which includes Indian Tribes, <br />and enviromnental impacts. The Department reiterates that intrastate transactions are not covered <br />under this rule. <br /> <br />Comment: One respondent stated that the rule should expressly address the legal status of <br />banked CAP water. The respondent is concerned that the banked water will be considered CAP <br />water under Federal law and non-Indian water users in Arizona will accrue millions of acre-feet of <br />credits with the sanction of Reclamation. The subsequent recovery of the stored water will result <br />in significant increases in ground water pumping over and above that currently authorized in <br />accordance with State law and the Tribes might be precluded from pumping the remaining ground <br />water reserves because those reserves will increasingly take on the character of CAP water. <br /> <br />Response: As noted in ~ 414.3 (c), the potential effects of the proposed measures on the <br />enviromnent, the economy, and trust resources are among the factors the Secretary will consider <br />when reviewing the proposed Storage and Interstate Release Agreement. <br /> <br />Comment: Revise the rule to incorporate the acre-foot for acre-foot ground water <br />pumping restrictions from the amended CAP master repayment contract and the CAP agricultural <br />subcontracts. Reclamation has a trust responsibility to protect Indian ground water from <br />continued ground water mining by non-Indian interests. <br /> <br />8 <br />