WSP06879

• File Number: 8200.400
• Description: Colorado River Basin Briefing Documents-History-Correspondence
• State: CO
• Basin: Colorado Mainstem
• Water Division: 5
• Date: 10/1/1999
• Author: DOI-BOR
• Title: Programmatic Environmental Assessment-Rulemaking-Offstream Storage Colorado River Water - Development-Release Intentionally Created Unused Apportionment-Lower Division States - Appendix H-Section III
• Water Supply Pro - Doc Type: Report/Study

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assures the states that they wiIl continue to have the opportunity to exploit unused tribal water for
their own benefit and to meet their future water supply needs at the expense of tribes. The
regulations should not allow water that is unused by tribes to be banked for the future credit of
states.

Comment No.2. We agree with the Fort Mohave Indian Tribe that the proposed rule is not
consistent with the trust responsibilities owed to Indian tribes in the Lower Division. The rule
provides a mechanism whereby the states receive the benefits from unused tribal water. The
Department expresses its "interest in finding ways that the Tribes may more fuIly benefit from
the water rights they hold in the Lower Basin." 62 F.R. at 68494. We respectfuIly suggest that
trust responsibilitY requires more than an expression of interest. These rules, if adopted, would
authorize mechanisms that ensure that the states obtain the benefit of unused tribal
apportionments. Such mechanisms wiIl be exclusively controIled by the states and provide no
assurances that tribes wiIl benefit from interstate transfers of water. We encourage the Secretary
to explore mechanisms that wiIl provide benefits to the tribes, before this rule is final.

Comment No.3. We agree with the Fort Mohave Indian Tribe that it is unlikely that the
states wiIl develop mechanisms that "allow the Tribes to more fuIly benefit from their water
rights" through programs implemented "within the existing Law of the River." The states have
historically maintained that off-reservation use of tribal water violates "the Law of the River,"
particularly if such water was not previously diverted, or if such water wiIl be used in another
state. We are encouraged that the Arizona Water Banking Authority is examining mechanisms
to enable tribes to participate in water banking, but we do not believe the Secretary should
abdicate his responsibility and encourage the states to develop mechanisms that he is not wiIling
or able to develop for the tribes at this time.

Comment No.4. We agree with the Fort Mohave Indian Tribe that the unique status of
tribal reserved water rights should be clearly expressed in the rules. The rules should also affirm
the Secretary's role as trustee for the tribes concomitant with his role as administrator of the
Lower Colorado River.
Comment No.5. We agree with the Fort Mohave Indian Tribe that the proposed rule
provides incentives for the states to oppose tribal water development on or off the reservation.
So long as unused tribal water may be used by states, both as Storing States and as Conswning
States, incentives are created for the states to oppose tribal water development and
off-reservation transfers. Indeed, weIl-respected water law practitioners concede that:

Rather than participating in water marketing arrangements with the tribes, many non-Indian
appropriators would prefer to use political c1o~t in Congress to prevent the tribes from obtaining
the funds necessary to exercise their reserved rights.

John B. Weldon, Jr., Non-Indian Water User's Goals: More is Better, All is Best in Indian Water
in the New West 79, 83 (1993).

Comment No.6. We agree with the Fort Mohave Indian Tribe that the Department should
address the applicability of this rule to tribal storage and water transfer activities at this time. By