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00182~ 58994 Federal Register/Vol. 64. No, 2ID/Monday, November 1, 1999/Rules and Regulations any entitlement holder, including a Tribe. from using irs Colorado River Water entitlement. The pocential effects of the proposed measures on the environment, [he economy. and trust resources are among the factors the Secretary will consider when evaluating the Storage and lnterstate Rele"se Agreement. This review process will help ensure that tribal rights will be profeered under this regulation. Comment: The Benefit-Cost Analysis shows that the overal! impact of the proposed rule is not significant. Please explain how t.his wa5 detennined and what the threshold was or refer the reader to a specific page of the Bencfit- Cost Analysis for the lnformation. Response: The threshold for whether a proposed rule is signific<lnl is defined in both the Small Business Regulatory Enforcement Fairness Act and the Unfunded Mandates Reform Act of 1995. Ttle Benefit-Cost Analysis reflects that the proposed rule is not a major rule (impacts are not significant) because the economic impact upon the regional and United States economy in anyone year does not exceed the threshold: i.e.. it is never greater than or equal to $100 million. However, even though the rule does not have a significant annual economic effect on lh~ eccmomy, 1t is still considered a significant rule because it raises novel legal or policy issues. See pages 38-42 C1nd 44-46 of the Benefit-Cost Analysis \0 see the findings that led to the determination of no significant economic impact. Comment: The Executive Summary of the Benefit.Cost Analysis refers to two water supply models, "A70" and "PSG." To beUer understand the potential effects of both A 70 and PSD criteria, state the water supply benefits resulting from the P80 criterjon and indicate rhe incremental quantity of additional surplus water made available under P8D. Response: The benefit-cost analysis shows that the benefits of AWBA's banking program are sma1!{"r under P8G (a more liberal surplus criterion that will tend to inaease the risk of shortages) lhan A 70 (a more conservative surplus criterion that win tend to reduce the risk of shortages). Under P80 surplus criteria, it is more likely tha.t all valid water demands within the Lower Division States will be met from instream nows. Therefore, demand for ICUA by a Consuming Slate is lower than under A 70. Total net ec.onomic benefits for the study period (1998-2017) at the regional level are shown at the bonom of page 2 of the ~:xecutive summary for the Benefit-Cost Analysis. Because surplus conditions are likely to continue for severa! years, we did not furrher analyze that alternative in the Biological Assessment (BA) thal we prepared for the proposed rule. Comment: There were a number of ediwrial comments on the Benefit-Cost Analysis and the Initial Regulatory FlexibiIlty Analysis. Response: We have reviewed and considered the comments submitted by a water district and have adopted many of the suggestions into the text of the final BenefH-Cost Analysis ,md the Final Regulatory Flexibility Analysis. Comment: Some tribes commented that allowing States to use "unused tribal water" and imposing limitations on the tribes" ability to use their reserved water potentially interfere with the tribes' protected property rights. Response: We do not agree with this statement. A.1l Colorado Rlv~r water available to the Lower Division States is apportioned for use in the individual Stales. Any water within a State's apportionment that is unused by tribes or non-Indian entltlemem holders is available to junior entitlement holders in that State under the Secrelary's priority system for the Colorado River. Only water that is not used by entitlement holders is eligible to be used for an i.nterstate transaction under this rule. Thus. there is no interference with lribal property rights. Comment: One tribe asserted lhat ttle tribes' \ack of opportunity to partic.ip3te in imerstate transactions on the same basis as the States under the rule violates Title VI of the Civil Rights Act of 1964, which states that "No person in the United States shall. on the ground of race, color or nalional origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or aClivity receiving Federal financial assistance." Re-,>ponse: We do not agree that the tribes will be denied an opportunity to participate under this rule or that this rule results in discrimination within tht:: meanjng of the Civil Rights Act. We will require that all entitlement holders, whether tribal or non-tribal. are treated equally under the rule. We will monitor efforts by the States and authorized entities to extend benefits to the tribes under lhis rule and will. in ttle future, assess whether we need to review or revise this rule to provide additionaJ opportunities to the tribes. Public Comments on Proposed Rule and Respon.~es on Specific Provisions The following seclion presents publiC comments on the propos.ed rule that apply to specific provisions in the rule.. .Comments Concerning the Title of (he Rule Comment: The tHle of the rute should not mention the "redemption of storage credits" because this term lack clarity and is ambiguous. The rule should provi.de that Colorado River water stored offstream under an Jnterstate Storage Agreement (now temled a "Storage and Interstate Release Agreement") wHl be used in the State in which the water is stored and that the Secretary will release leUA ralher than deliver ,Storage credits. Response: We agree with the concept suggested by several Stale agencies. a water district, and a water authority and have modified the title to read, "Offstream Storage of Colorado River Waler and Development and Release of Intentionally Crealed Unused Apportionment in the Lower D\vis1on States." C~mments Concerning 3 414. J -Purpose Comment: The purpose section should not use terminology that is vague and implies [hat a Storing State will create and redeem storage credits because the Colorado River water that is stored offstream wjJI always belong to lhe Storing State. Amend the language to establish the intent that Storage credits will be redeemed in the Slale in which water will be stored and the Secretary wit! release ICUA rather than deliver storage credits under an Interstate Storage Agreement (now termed a "Storage and Interstate Releasv Agreement' '), Response: W~ have adopted the suggestions from several State agencies. a water district, and a water aUlhority 10 describe the proposed transactions under this rule in terms that are clear and unambiguous. In lieu of developing and redeeming storage credits, we have changed this rule to reDect that the Secretary will release ICUA to consuming entities under Storage and Interstate Release Agreements. Comment: Because the Secretary's approval of lraerstate Storage A.greements (now termed "Storage and Inlerstate Release Agreements") could delay approv<lls, the Secretary's authority for the Department's responsibilities under the rule should be delegated to Reclamalion, subject to the right to appeal the Regional Director's decisions through the Department. Response: Under the rule, the Secretary witl not approve the Storage and Interstate Release Agreement but will instead be a party 10 the agreement. The rule provides that the Regional Dire\-:tor for the Bmeau of Reclamation's Lower Colorado Region (Regional