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<br />00182~ <br /> <br />58998 <br /> <br />Federal Register/Vol. 64, No, 210 I Monday, November I. 1999/Rules and Regulations <br /> <br />surface water that it otherwise would <br />have used anyvvay. claim credit for <br />developing ICUA. and receive payment <br />for actions it would not have taken. We <br />do not bel ieve it is necessary for the <br />consuming entity to postpone Hs request <br />for ICUA until after the annual warer <br />orders and the AOP are completed. We <br />believe that infonnalion on water orders <br />should be shared openly and up front in <br />the interest of beuer regiorlal <br />Cooperation. The open nature of these <br />water schedules will help ensure that an <br />initial water order is legitimate and that <br />it is not imention311y increased in order <br />that a Storing enti\y could get credit for <br />JCUA without taking the actions <br />necessary to develop that ICUA. <br />Comment; Modify 9414.3(a) 10 <br />indude a requirement For fhe storing <br />entity to provide evidence that the <br />stated water has not migrated out of the <br />State. out of the United States. to a <br />saline sink. or retlJrned to the <br />mainstream. <br />Respome: We do not agree with the <br />comment from a water district that this <br />provision is necessary in this rule. We <br />will require full environmental <br />compliance on all Storage and Interstate <br />Release Agreements and will consider <br />the potential migration of ground water <br />storage when evaluating the effects of <br />storage on the environment and trust <br />resources. <br />Comment: Modify ~414.3(a) to clarify <br />that the parties to the lnter5tate Storage <br />Agreement (now tcmled a "Storage and <br />Interstate Release Agreement") other <br />than the United States will indemnify <br />the United Statcs [rom actions taken by <br />parties to the agreement ot/1er thJn the <br />United States, not for the broader <br />actions of the United States. <br />Response: We agree that the United <br />States is covered by the Federal Tort <br />Claims Act and other laws and have <br />revised this paragraph. noVo' designated <br />'l414.3(a)(I6), to incorporate this <br />comment by a water district and an <br />irrigat\on d\s\rkt. <br />Comment: The Department should <br />procect tIle water ill Indian tribes' <br />ground water basins by not allowing the <br />storage or recovery of water from ground <br />Wi3t€r basins that are hydraulically <br />connected to the tribes' ground water <br />basins. <br />Response: The Department <br />acknowledges its obligation to protect <br />tribal resources. Section 414.3(b) <br />provides that the Secretary will consider <br />potential effects on trust resources and <br />entitlement holders. which include <br />Indii.lO tribes with rights [0 Ihe use of <br />Colorado River waler, in considering. <br />participating in. and administering a <br />Storage and lnterswte Release <br />Agreement. <br /> <br />Comment: Modify the following <br />elements of ~ 414 .3(b), now renumbered <br />9 414.3(c). to require the Secretary to <br />notify the public of a request to approve <br />an Interstate SlOrage Agreement (now <br />termed a "Storage and Interstate Release <br />Agreement"). provide a more definitive <br />time for the Secretary to respond to the <br />request, provide for execution of <br />necessary contracts to authorize the <br />diversion and use of Colorado River <br />water. and provide an appeals proce55. <br />Response: We have modified the rule <br />to provide in 9414,3(a) that the <br />Secretary will be a party to a Storage <br />and Interstate Release Agreement. We <br />modified 9 414,3(c) to specify that the <br />Regional Director for the Bureau of <br />Reclamation's Lower Colorado Region <br />(Regional Director) shaH have the <br />authority to negotiate. execute. and <br />administer a Storage and Interstate <br />Release Agreement on behalf of the <br />Secretary. The rule does not provide for <br />an appeal of the Regional Dlrector's <br />decision whether to execute a particular <br />Storage and Interstatc Release <br />Agreement. The necessity of contracts 10 <br />authorize the diversion of water under <br />a Storage and Imerstate Release <br />Agreement, except for slOrage of Article <br />II (D) (of the Decree) water by Federal or <br />tribal entitlement holders. is addresse:d <br />in 9 414,3(e) of the rule, The rule allows <br />for the storage of Colorado River water <br />either through a direct contract Witll the <br />Secretary or through a valid subcontract <br />with an entidement holder authorized <br />by the Secretary to enler into such <br />subcontracts. The Storage and Interstate <br />Release Agreement to which the <br />Secretary will be a party satisfies the <br />Section 5 re.quirement for the release or <br />diversion of ICUA to the consuming <br />entilY in the Consuming State. <br />Comment; Amend 9414,3 (c) to <br />conform the wording to other changes <br />made that delete use of the term <br />"redemption of storage credits." <br />Response: We agree with the <br />suggestions from several State agencies, <br />a water authority. and a water district. <br />and have modified this rule to more <br />dearly describe the imeJll of the Storage <br />and Interstate Release. A.gre.emems. The <br />revised wording specifies that, after <br />receiving i.l notice of a request for release <br />of ICUA. the storing entity will certify <br />to the Secretary that sufficient water has <br />been stored for the Storing Slate to <br />support the development of the <br />requested quantity of ICUA. The revised <br />paragraph is designated !j414.3(a)(10). <br />Comment: Amend 9 414.3(d) to <br />conform the wording [0 other changes <br />that delete use of the term redemption <br />of storage credits. Also. specify that <br />ICUA is available only for use by the <br />consuming entity. <br /> <br />Response: We agree with the <br />suggestions from several State agencies, <br />a water authority, and a water district <br />and has. mod\fied this rule to more <br />clearly describe the intent of the Storage <br />and Interstate Release Agreements. The <br />revised wording substitutes the term <br />"intentionally created unused <br />apportionment" ("ICUA"J for the less <br />definitive term "redemption of storage <br />crediLc;." In addition. the revised rule <br />clarifies that ICUA will be re\eased on\y <br />for use by the consuming entity. <br />Comment: The rule should provide <br />for a contractual commitment by (he <br />Secretary to re}ease 10 a consuming <br />entity ICUA th3t exists as a consequence <br />of implementation of the Interstate <br />Storage Agreement. <br />. Response: We modified the rule in <br />~ 414.3(a) to prOVide that the Secretary <br />will be a party to Storage and Interstate <br />Release Agreements. Sections <br />414,3(0)(12) through 414.3(0)(\5) <br />provide. among other things, that the <br />Secrewry will commit in the Storage <br />and Interstate Release Agreement [0 <br />re(ea~,e ICUA but only if all necessary <br />actions are taken under the rule, if all <br />law5 and executive orders have been <br />complied with, and if the Secretary has <br />first determined that ICUA has been <br />developed or will be developed by.3 <br />storing entity. <br />Comment: A Federal agency has <br />commented as to whether actual storage <br />of Colorado River water musl take place <br />in those instances where both storage <br />and recovery take place in the same <br />year. <br />Response: The rule docs allow for the <br />release and delivery of ICUA in the <br />Si,lme year in which it is develope:d <br />Consistent with the laws of the sroring <br />state. if recovery and development Occur <br />in the same year. and section 414 .3m <br />(Anticipatory Relea~ of ICUA.) is <br />invoked. the Secretary will not require <br />actual storage of water subsequent to the <br />release of ICUA. <br /> <br />Comments Concerning S414.4- <br />Reporting Requirements and <br />Acco~JT1(jng Under Storage and <br />/rHersrare Release Agreements <br /> <br />Comment: Amend 34l4.4 to provide <br />more flexibility in the reporting date <br />and to clarify the intent that water <br />stored under an lmerslate Storage <br />Agreement (now termed a "Storage Olnd <br />Interstate Release Agreement") will be <br />recovered and used in the Stale in <br />which water will be stored and it will <br />be ICUA waler rather than credits that <br />the Secretary will release under an <br />Interstate Storage Agreement (now <br />termed a "Storage and Inlerstate Release <br />Agreement"). The language should <br />reference the Interstate Storage <br />