WSP09205

• File Number: 8200.400
• Description: Colorado River Basin Briefing Documents-History-Correspondence
• State: CO
• Basin: Colorado Mainstem
• Water Division: 5
• Date: 11/1/1999
• Author: DOI-BOR
• Title: Offstream Storage of Colorado River Water - Development and Release of Intentionally Created Unused Apportionment in the Lower Division States - Final Rule - 43 CFR Part 414
• Water Supply Pro - Doc Type: Report/Study

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Federal Register/Vol. 64. No. 21O/Monday. November 1. 1999/Rules and Regulations

under the Law or the River and that it
is not the intent of this rule to change
or expand the Secretary's aulhoritie:<..
This narrative should also emphasize an
intent (0 provide for more efficiem use
of unused apportionment and surpluses
within the "Law of the River" but
specify that water users in the Lower
Division States must plan to live within
the apportionments made (0 them under
the "law of the River,"
Response: We agree with this
suggestion from a State Agency to
clarify that this rute is deemed to be
within bur does not expand the
Secretary's authority. The preamble to
this rule includes a section to provide
further explanation of the purpose of
this pari. This rule is not intended to
change or expand the Secretary's
authorities under [he "Law of the
River." This rule is intended to facilitate
more efficient use of unused
apponlonment and surpluses within the
"Law of the River" in the Lower
Division States.
We also believe [hat this rule, in
conjunction with the implementation of
the California 4.4 Plan and the
development of surplus criteria, will
provide a framework for the Lower
Division States to hold consumption
within the apportionments available for
use within those States.
Comment: Conform this section of the
rule with previol1s changes that delete
the reference to the term. "redemption
of storage credits. "
Response: We have adopted this
change, suggested by several entities,
including State agencies, a water
authority, and a water district. As
discussed previously, this rule will
provide for offstream storage of
Colorado River water in a Storing State.
the subsequem development of ICUA by
the storing entity for release by the
Secrerary to a consuming entity, and the
recovery of the srored water for lJse in
the Storing State.
Comment: De1ete the reference fO
Ankle 1l{B)(6) of the Decree in the first
sentence under!3 414.3{a) hecause the
Decree does not cite a legal authority for
entering into Interstate Storage
Agreements (now termed "Storage and
Interstate Release Agreements").
Response: We agree that' . Storage and
Interstate Release Agreements" are not
referenced in the Decree and have
modified MI4.3(a) of the rule.
However, Article 11(8)(6) of the Decree
provides authority for the Secretary to
(1) make an annuat determination under
this rule of the availability oflCUA and
(2) release any such water in accordance
with the terms of a Srorage and
Interstate Release Agreement.

Comment: Delete the last sentence of
9414.3(a), that reads. "An Interstate
Storage Agreement (now termed an
"Storage and interstate Release
Agreernent") will allow a sloring entity
lO store unused enlitl€'.m~nt and/or
unused apportionment (or the credit of
an authorized entity located in a
Consuming State and will provide for
the subsequent redemption of the
credit."
Response: We agree with this
comment from a State agency and have
modified this rule to incorporate this
change.
Comment: A senior priority holder in
California should not be allowed to
agree to make available unused
apportionment for storage in another
State without first obtaining the
a.greement of C~lifornia' s junior priority
holders,
Response: Under this rule. onLy water
that is unused by all entHlement holders
in the applicable State's priority system
is eligible for storage by an authorized
entity for use in an interstate
transaction.
Comment: One respondent noted that
its contract with the Secretary allows it
to request Reclamation to approve an
exchange, lease. or transfer of Its water
entitlement. The respondent further
stated its intent to pursue interstate
marketing opportunities and positlon its
Colorado Ri....er water supply as all
unused apportionment that may be
released annually for use in the other
Lower Division States under the Decree.
Respon.se: The Department recognizes
tflat the entitlement holder's contract
allows it to request approval of an
exchange, lease, or transfer and notes
ttlat any change in the place of use or
type of use of the entitlement is sLlbject
to the Secretary's approval. The
development of ICUA. u.nder a Storage
and Interstate Release Agreement may
involve the exchange, lease. or transfer
of Colorado River water under an
individual entitlement holder's contract.
Any such exchange. lease, or transfer
v.;auld be subject ro Secretarial approval
unless the entitlement holder's contract
specifies otherwjse. Moreover, to
parti.c\pate under this rule as an
authorized entity in a Storing State. thar
entiry must be expressly authorized
under State law.
Comment: The rule should be
modified to allow authorized entities in
California and Nevada to have equal
access to store that portion of Arizona's
Colorado River apportionment that is
not otherwise put to use by entitlement
holders within Arizona. Also,
allthorized entities in California and
Nevada should have equal access [0 the
quantity of ICUA that Arizona will make

available to consuming entities when
those entities request it.
Response: We recognize these
concerns expressed by a State agency
and a water district but do not believe
it is appropriate to establish an
allocation method in this rule. Storage
and Interstate Release Agreements are
voluntary interstate water transactions.
The Secretary will not require
authorized entities of one State to enter
into Storage and Interstate Release
Agreements with authorized entities in
anorher State. We encourage each
storing entity to consider the need':> of
all consuming entities under
prospective Storage and Interstate
Release Agreements.
Comment: Modify ~ 414.3(a) ro allow
a more general description of the
el1tities by which Colorado River water
will be stored and the storage facilities
in which it will be stored.
Response: We did not accept this
recommendation. It is necessary to
clearly identify the actual entity that
will store Colorado River water under
t~e Storage and Inrerstate Release
Agreement and the faciHty where it will
be stored so that a thorough review of
the impacts of the storage on
environmental and trust resources can
be performed.
Comment:Specifv in ~414.3(a) that
the water to be slon?:d will be within the
basic apportionment or the surplus
apportionment of the Storing State or
unused basic apportionment or unused
surplus apportionmenr of the
Consuming State. Any unused
apportionment of the Consuming State
may only be made available by the
Secretary to the Storing State under
Article 11(8)(6).
Response: We agree with this
suggestion from several State agencies
and a water district, and have modlfiea
this rule to incorporate thjs change.
Comment:Speciry in ~414.3(a) the
maximum quantity of ICUA thal will be
available for release to the consuming
entity under the agreement.
Response: We a.gree \\'ith this
suggestiun from several State agencies, a
wa.ter authority, and a water district. We
have modified this ru\e \0 incorporate
this change.
Commefl(:Specify in ~414.3(n). by
January 31, the maximum quantity of
ICUA that will be available for release
and deljvery to the consuming entity
under the Interstate Storage Agreement
(now termed a "Storage and Interstate
Release Agreement") in that current
year.
Response: We did not accept this
suggestion from a water district. The
rule leaves rhe determination of this
derail to the Storage and Interstate