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<br />"', . .'. -. , <br /> <br />001358. <br /> <br />Page 3 <br /> <br />deal with intrastate storage and distribution of water (unlike Interior's previous overreaching <br />efforts). Instead of legislating Tribal water marketing, the rule provides only for storage <br />agreements between water banking entities expressly authorized under state law. The <br />background discussion acknowledges the federal government's trust responsibility to Tribes and <br />recites its "expectation" that the state water banks will operate to include Tribes. <br /> <br />There is one possible area of uncertainty in how to demonstrate the development of <br />"intentionally created unused apportionment." The rule notice invites comments on this issue. I <br />believe the focus is simply on how to establish accounting, to ensure that the Storing State and <br />the appropriate water user actually decrease their use of Colorado River water in the year in <br />which the storage credit is redeemed. Because the invitation for comments on this is broadly <br />worded, I suppose it's possible that someone could come up with paper sche~es to "save" water <br />and define it as "intentionally created unused apportionment." I think we'll just have to keep an <br />eye on the final rule and on any agreements approved under the rule. <br /> <br />The bottom line is that the rule is a decent attempt at what we have been urging for years, solving <br />the Lower Basin's water supply problems within the Lower Basin. Accordingly, the legal issue <br />I've raised may not weigh heavily enough in the balance against that political and practical <br />concern. <br /> <br />cc: Jennifer Gimbel <br /> <br />AG ALPHA: L W NR IAFDE <br />AG FILE: P:\NR\NRANGECD\WORD\8004.DOC <br />