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04-03-98 03:07PM FROM MSAJ WA 00063"3 TO 17022938042 P005/006 I I I I r ( r ( 1 I I I I I I I I I I Bureau of Jl""l~mlltion April 3. 1998 Page 4 States to implement programs that will allow the Tribes to more tully benefit from their water rights. !lI.. This is not aa:eptable. Thbal water right5 can not be subject to interpretation and implementation'" the _... The preamble and proposed rule must be re-written to properly reflect the role of the SecretaIy as the water master of the Colorado River iI!I!! to reflect his trust responsibility to the Indian Tn'bes of the Lower Division, In 1994, the Bureau of Reclamation drafted regulations entitled. Administering Entitlements to Colorado River Water in the Lower Colorado River Basin" wherein the Department coneetly concluded: To preclude the Indian tribes within the l..awer Basin from the direct leuing and banking rnarketing systems offered to other water users would unnccessariJy restrict the flexibility and economie potential of valuable triba1 water resources, and would IIIso be contraIy to the Department's trust 1'C5pOll6lbility and the SecretarYs existing statutory authorities as outlined herein. Unfortunately, the Secretary has completely abandoned the Department's former position. Under the procedural framework established by the new propolCd rule, benefits to Indian Tnbc:a in the Lower Division through participation in watc:r storage and interstate transfers will be entirely dependent upon state lawmakers and state water agencies in the Lower Division States.. Once again. this is unacceplllblc:. In the 1994 ..,....dt regulations, I 415,23(c) IiGt Corth the rcquiremeobi for dcvc;loping guidelines for the administration and use of "banked" water. The 1994 draft regulations called for the Regional Director. in consultation with the Indian TnbC6 in the Lower Division and the Bureau of Indian Affairs, to develop these guidelines for Indian Federal entitlement holders. Lower Division States and their agencies were 8peOfi.."'lly precluded from developing the guidelines for Indian Federal entitlement holders. To leave the Tnbes at the merc;y of the lower Division States in relation to any potential benefits which may be derived from interstate water storage and transfers is unacceptable. Given the undisputed value of water in the West, and the litigious and contentious relatiooship between the Tn"bes and the Lower Division States (especially California), the ellprCS5ion of expectation and encouragement by the Secretary does not fulfill his fiduciary obligation to prot~t, to prel101'Ye and to promote the Tribes' water rl8bts to their orescnt benefit. By not including Indian Tnbes in the Lower Division States within the coverage of the new proposed rule, the SecretaI}' is abdicating his role as the water master of the Colorado River in the Lower Basin and abdic:ating his respOD81bUides for mlln9gil1g the Lower Colorado River efficiently, effcclivcly and to the benefit of all Colorado River water uscrs. We also concur in the comments made by Toll Smith, Esq., on behalf of the Fort Mojave Indian Tribe.