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<br />(d) "Available capability," used in Article 11(4) herein, means that portion of <br />the total capacity of the powerplant that is physically available for <br />generation. <br /> <br />SYNOPSIS OF COMMENTS AND RESPONSES: Cited below is a synopsis of the <br /> <br />comments received during the sixth review of the Operating Criteria and responses to <br /> <br />those comments. The number(s) in parenthesis following each comment refer(s) to the <br /> <br />party that made the comment (please see the SUPPLEMENT AR Y INFORMA nON <br /> <br />section of this Notice for a numbered list of the commenting parties). <br /> <br />Comment No. 1- (Letter No.2): Reclamation must draft and implement the Operating <br />Criteria in accordance with federal law, which includes. . . treaties establishing Indian <br />reservations and their reserved water rights. . . . Accordingly, the Quechan Tribe is <br />extremely concerned that the Operating Criteria and its implementation not interfere with <br />the tribe's senior perfected federal reserved water rights. . .. The tribe requests that <br />Reclamation review its Operating Criteria in that light, and make any necessary <br />modifications. <br /> <br />Response: The Operating Criteria do not affect the Quechan Tribe's senior water rights <br />to use all of its Present Perfected Rights, including any additional rights granted in a <br />supplemental decree. The Operating Criteria specifically state that they will be <br />administered consistent with applicable federal laws. Some issues.regarding the water <br />rights of the Quechan Tribe are pending in active litigation before the United States <br />Supreme Court in Arizona v. California. The Operating Criteria will be administered in a <br />manner consistent with any further decisions from the Court in this regard. The <br />Department of the Interior notes that the Court has established a priority date of January 9, <br />1884, for the federal reserved rights awarded to the tribe to date. <br /> <br />Comment No.2 - (Letter No.2): The Quechan Tribe is also concerned that the <br />Operating Criteria and its implementation not inappropriately facilitate, validate, or <br />permanently secure use by others of Colorado River water that the tribe is not <br />beneficially using. . .. Reclamation should therefore not designate water as "surplus" to <br />the .extent that such designation makes the water available for others. <br />I <br /> <br />Response: On an annual basis, determinations of availability of "surplus" water are made <br />as part of the Annual Operating Plan process, and are based upon the Interim Surplus <br />Guidelines adopted by the Secretary of the Interior (66 Fed. Reg. 7772-82). <br />Determinations of "surplus" conditions are consistent with the provisions of Article <br />II(B)(2) of the Decree entered by the United States Supreme Court in Arizona v. . <br />California, 376 U.S. 340,342 (1964). The Department does not believe that the <br />Operating Criteria or the Interim Surplus Guidelines inappropriately facilitate, validate, <br /> <br />12 <br /> <br />