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<br />000333 <br /> <br />Response: The measures that will be used to develop ICUA are to be specified in each <br />Storage and Interstate Release Agreement and must be verifiable. The method used to develop <br />ICUA and the appropriate method of verification may vary according to the transaction. <br /> <br /> <br />The Timinlr for the Completion of the Final Rule <br /> <br />Comment: Several respondents asked for additional time to review the proposed rule and <br />DPEA and questioned why the completion of the rulemaking process appeared to be on a "fast <br />track." <br /> <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 /> <br />Response: In developing this final rule the Department has followed the mandates of the <br />Administrative Procedure Act. In fact, the Department extended the time for public review and <br />comment from 61 to 93 day~ despite the fact that this final rule only formalizes the existing <br />authority of the Secretary to;enter into Storage and Interstate Release Agreements and does not <br />expand or create this authority. Moreover, the Department reopened the comment period for an <br />additional 30 days to obtain further comments. This extended review period has given the public <br />numerous opportunities to review this rule. In addition, the Department reviewed and analyzed <br />the comments submitted during the reopened comment period and revised the final rule as needed. <br />Finally, the Secretary will notify the public of the Secretary's intent to participate in negotiations <br />to develop a Storage and Interstate Release Agreement and give the public further opportunity to <br />comment before any specific transaction is implemented. <br /> <br />Tribal Water Riehts <br /> <br />Comment: The rule should include an introductory section that recognizes Indian holders <br />of present perfected rights are not required to beneficially use their water, are not subject to a loss <br />or reduction in their water for non-use or non-beneficial use, and are not subject to State law or <br />State regulatory control for the on-reservation use of their entitlements. <br /> <br />Response: The Department recognizes the unique status of present perfected rights <br />holders under the Decree and agrees that Tribal present perfected rights holders are not subject to <br />a loss or reduction in their water rights for non'use. The 1979 supplemental decree entered <br />March 9, 1979 (439 U.S. 419) by the Supreme Court in Arizona v, California quantifies and <br />prioritizes Tribal rights to the use of Colorado River water. The 1979 supplemental decree states <br />that: "Any water right listed herein may be exercised only for beneficial uses," The Department <br />does not believe it is necessary that such information be included in an introductory section for the <br />rule. We agree that Indian holders of present perfected rights are not subject to State law or State <br />regulatory control for the on-reservation use of their entitlements. <br /> <br />Comment: Indian Tribes should be permitted to enter into intrastate or interstate <br />agreements for off stream storage and marketing of their unused water off the reservation under <br />the statutory and contractual authority vested in the Secretary, <br /> <br />6 <br />