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, 00i82f Federal Register/Vol. 64, No, 21O/Monday, November I, 1999/Rules and Regulations 58999 Agreements (now termed . 'Storage ..md Interstate Release Agreements") that establish the basis for the accounting for the water to be released by the Secretary for use iI1 the Consuming State. Response: We agree with this suggestion from several Slate agencies. a water authority, and a water district. and hllve reviseolhis rule to more clearly describe the intent of the Storage and Interstate Release Agreements. The reporting date was made more Oexible by ?Howing the date lO be agreed upon by the parties to the Storage and Interstate Release Agreement and specified in the Storage and Interstate Re\ei.\se A.greemenr. 'To be consistent With other changes made in this rule. this provision refers to the water stored under a Storage and Inlerstare Release Agreement as water that is available to the storing emity. The Secrelary will account for water stored under a Storage and Interstate Rele,ise Agreement and available to support the development of ICUA. The Secreta!"y will release leUA for use by a c.onsun1ing entity when the provisions of this rule and the Storage and Interstate Rele<.lse Agreement have been satisfied. Comment: h is not clear how the" cut to the aquifer" or losses from storage or transporWtion are determined or if they are arbitrary or based on actual data. It is not cle<1r whether this detail is specific 10 a State's regulation or the lnterstate Storage Agreement (now lenlled a "Storage and Interstate Release Agreement' 'J. Response: A storing entity will dercrmine how much stored water must remain in an aquifer based on the Storing State's applicable law and/or the policy oflhe authorized entity. In Arizona, thaI decision is based on State 1aw which requires that 5 percent of water placed in offstream storage remai n in tIle grmmd to replenish the aquifer. The authorized entity will determine, consistent with applicable State law, how much stored water can be recovered when that authorized entity decreases its diversions and consumptive use of Colorado River water in ttle future to develop lCUA that the Secretary wi II release for use by a consuming entity. , C:omrnenfs Concerning s414..5-Water Quality Comment: Modify S 414.5(a) to clarify that the inlerstate agreements referred [0 are lnterstiHe Storage Agreements (now tenTIed "Storage and lnrerstatc Release Agreements"). Clarify which water is being referred to and recognize the Secretary's responsibilllies under the Colorado River Basin Salinity Control Act. Response: We agree with these suggestions from several State agencies, a water authority, and a water district. and have modified!9 414.5(a). This rule clarifies that the referenced agreements are Storage and Interstate Release Agreements. In addition, the last sentence Or9414.5(a) was modified to qualify that the United Slates has no obligation to construct or furnish water treatment facilities to maintain or improve water quality except as olhcrwise provided in re\evam Federa) law. Implementation of this rule will not modify the Secretary's responsibilities under the Colorado River Basin SaHnity Comro) ACl of JUCle 24,1974 (BB St.t. 266), Comments Concerning 3 414. 6- Environmental Compliance and Funding of Federal Costs Comment: Modify !i414,6(b) to clarify that the interstate agreements referred to are ~nter5olate Storage Agreements (now termed "Storage and Interstate Release Agreements") and that the costs incurred by the United States in ~","21\uatlng, processing, and approving an Interstate Storage Agreement (now termed a Storage and Interstate Release Agreement ") will be funded by the parties to that agreement. Response: We agree with these suggestions from several State agencies, a water authority. and a water district, and have modified 9 414.6(b) to require that the authorized entities that are parties to a SLOrage and Interstate Release Agreement must fund the United States costs of considering.. participating in. and administering that agreement. Public Comments on DPEA and Responc.es The followIng js a discussion of the comments received on the DPEA and OlJr responses. This section includes comments on the scope of the DPEA, Secretarial discretion, adequacy of the environmental assessment, potential effects on plants and wildlife, water available for instream flows and habitat enhancement. concerns over deliveries to Mexico. efficiency improvements, storage alternatives, consultations, sunset clause, economic impacts of the rule, effects on ground water storage, and general comments. Scope of the DPEA Comment: The descriptiOn of proposed interstate transactions in the draft programmatic environmental assessment is overly broad and the draft environmental assessment is therefore unnecessarily broad in its scope. Response: We recognize, from comments on the proposed rule and DPEA. Ihat prospective transactions are not described the way prospective authorized enlHies win intend them to work. Colorado River water stored ofTstream under a Storage and Interstate Release Agreement will be available for use in the Storing State. When a consuming entity requests water stored under a Storage and Interstate Release Agreement It will receive ICUA, not storage credits, The storing entity will take actions to reduce its Stare's consumptiv.e use of Colorado River water, thereby developing ICUA. When the Secretary is satisfied that ICUA has been or will be developed. an equivalent quantity of ICUA will be released by the Secretary for use by the consuming entity, Based on a reformulation of the prospective transactions that may take place. under the rule. we believe that the final programmatic environmental assessment (FPEA) is appropriate. Secretarial DiscretJon Comment: Several respondents commented that the rule should not be finalized or surplus water slared offstream before the Department clarifies exactly what discretion the Secretary has in providing water for habitat enhancement and how the proposed rule would affect that disoretion. Response: In the Lower Colorado River area lLCR). the Decree apponions surplus among the Lower Division States as follows: 50 percefJl to California, 46 percent to Arizona, and 4 percent to Nevada. Entities with surplus contracts are currently using surplus and may store it offstream for intrastate use without the proposed Rule. We recognize that the Secretary's management of the LCR to accommodate ~ndangered and sensitiVe species and their critical habitat is being reviewed as part of the MSCP. FWS developed a Reasonable and Prudent Alternative (RPA) in the Biological and Conference Opinion (BeG) for the current and projected routine operations and maintenance of the LCR. The RPA contains a number of provisions, one of which, 13(aJ. addresses lhe type and extent of the Secretary's discretionary action flexibility for all operations and maintenance activities on the Colorado River. Reclamation h~s provided a summary of its discretion to FWS. Reclamation complied with RP A provision 13(b) by providing a report to FWS on December 30, 199B, that identifies opportunities to increase the Secretary's discretion in Colorado River operations in order to provide water for fish a~d wildlife purposes. We believe