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<br />22 <br /> <br />UD~~ <br /> <br />(2) the means of diversion and construction and <br />operation of any diversion works outside the <br />Reservation are adequate; <br /> <br />(3) the diversion will not adversely affect any <br />federal or state water r~9ht actually in use at <br />the time ~~tice is given unless the owner <br />consents; <br /> <br />(4) <br /> <br />that the proposed use does not cause any <br />unreasonable significant environmental impact;39 <br /> <br />37In testing whether an existing right is adversely <br />affected, paragraph 4 of Section J treats the right to be <br />transferred as havinq certain characteristics - an 1888 <br />priority date, a point of diversion, a purpose of use and a <br />consumptive use. It also provides that the right has not been <br />adandonec or forfeited. <br /> <br />For rights actually in use at the time of transfer, these <br />characteristics are the existing point of diversion, purpose of <br />use aDd consumptive use. If the right is not actually in use, <br />the point of diversion is the point at which the water would <br />first flow on or adjacent to the Reservation, the purpose of <br />use is irrigation, and the consumptive use is 1.8 acre-feet per <br />acre. The paragraph provides that deeming the purpose of use <br />as irrigation is not intended to constrict its being marketed. <br />It is simply an administrative convenience. The State believed <br />that some use must be specified, and irrigation was selected <br />bec~use, ~s discussed pp. 11-15, supra, the entire Tribal Water <br />Right was quantified as an irrigation use. But although an <br />actual irrigation use would have a period of use in the growing <br />season only, the paragraph makes it clear that the use can be <br />freely transferred to another purpose without restriction. <br /> <br />, <br />j <br />, <br /> <br />3BAt the request of the State, a provision was added at <br />the end of paragraph 1 to the effect that if consent of the <br />owner is given, that shall not exempt the owner from any <br />provisions of state law. For example, if at the time consent <br />is given, state law requires an owner of a state water right to <br />use his water, that requirement would be preserved under the <br />Compact. <br /> <br />J <br /> <br />39Any adverse impact of the use must be shown to be both <br />unreasonable and significant before this standard is <br />transgressed. The tribal negotiating team therefore agreed to <br />(Footnote Continuen) <br />