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<br />58986
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<br />Federal Reglsler/Vol. 64. No, 21O/Monday. November 1. 1999/Rules and Regulations
<br />
<br />DEPARTMENT OF THE INTERIOR
<br />
<br />Bureau of Reclamation
<br />
<br />43 CFR Part 414
<br />R'N 100&-AA40
<br />
<br />Offstream Storage of Colorado River
<br />Water and Development and Release
<br />of Intentionally Created Unused
<br />Apportionment in the Lower Division
<br />States
<br />
<br />AGENCY: Bureau of Reclamation.
<br />Interior.
<br />ACTION: Final rule.
<br />
<br />SUMMARY: This rule establishes a
<br />procedural framework for the Secretary
<br />of the Interior (Secretary) (0 follow in
<br />considering, participating in. and
<br />administering Storage and Interstate
<br />Release Agreements among the States of
<br />Arizona. California. and Nevada (Lower
<br />Division States). The Storage and
<br />Interstate Release Agreements would
<br />permit Stale-authorized entities to store
<br />Colorado River water offstream, develop
<br />intentionally created unused
<br />apportionment (leUA) , and make leVA
<br />available to the Secretary for release for
<br />use in another Lower Division State.
<br />This rule provides a framework only
<br />and does not authorize any specific
<br />activities. The rule does not affect any
<br />Colorado River water entitlement
<br />holder's right [Q use its full water
<br />entitlement, and does not deal with
<br />intrastate storage and distribution of
<br />water. The rule only facilitates
<br />volunwry interstate water transactions
<br />that can help satisfy regional water
<br />demands by increasing the efficiency,
<br />nexibility. and certainty In Colorado
<br />River management.
<br />EFFEC11VE DATE: December 1. )999.
<br />
<br />FOR FUR1HER INFORMATION CONTACT: Mr.
<br />D31e Ensminger. (702) 293-8659 or Ms,
<br />Erica Petacchi (202) 208-3368,
<br />
<br />SUPPLEMENTARY INfORMATION:
<br />1. Background
<br />II. Final Rule as Adopted
<br />HI. Tnballssues
<br />IV. Responses to Comments
<br />V. Procedural Matters
<br />
<br />I. Background
<br />
<br />This final rule was preceded by a
<br />proposed rule that we published in the
<br />Federal Register on December 31, 1997
<br />(62 FR 6849 I), The proposed rule
<br />provided for a public comment period
<br />that ran from December 31. 1997
<br />through April 3, 199B. In addition to
<br />oral com!ll{'nts submitted at one public
<br />he;Jring and one public meeting, we
<br />received 47 letters during the comment
<br />period on the proposed rule. Two letters
<br />commented only on the draft
<br />
<br />programmatic environmental
<br />assessment (DPEAl. The respondents
<br />incIuded two irrigation districts, three
<br />water districts, two water authorities,
<br />two water user associations, three
<br />individuals, one municipal utility, one
<br />city. one farmer's organization. one safe
<br />drinking water organization, four
<br />environmental organizations, 11 State
<br />agencies, nine Indian tribes, and seven
<br />Federal agencies. We reviewed and
<br />analyzed all commenls and revised the
<br />final rule based on these comments.
<br />The DPEA provided for a comment
<br />period that ran from December 31, 1997
<br />through April 3, 1998. Oral comments
<br />on the DPEA were submitted at the
<br />same public hearing and the same
<br />public meeting for the proposed rule. In
<br />addition to those oral comments, we
<br />received 25 lellers from 26 respondents
<br />during the comment period. The
<br />respondents included one water district.
<br />one water authority, one individual. five.
<br />environmental organizations, five State
<br />agencies, six Indian tribes, and seven
<br />Federal agencies. As with the rule, we
<br />reviewed and analyzed all comments
<br />and revised the final programmatic
<br />environmental assessment based on
<br />lhese comments,
<br />As a result of receiving differing
<br />comments on the definition of
<br />authorized entity and several other
<br />technical maners, we reopened Ihe
<br />comment period on September 21, 1998
<br />(63 FR 50183) for a 30-day period
<br />ending October 21, 1998, We asked
<br />interested parties to comment on three
<br />specific queslions. We received 10
<br />letters from 11 respondents during Ihe
<br />reopened comment period. The
<br />respondents included three State
<br />agencies, three water dislricts, one water
<br />authority, one water users associalion.
<br />and tnree environmental organizations.
<br />We reviewed and analyzed all
<br />comments and revised the final rule
<br />based on these comments.
<br />Following the apportionmem of water
<br />between the Upper and Lower Basins in
<br />the Colorado River Compact. Congress,
<br />by passing tile Boulder Canyon Project
<br />Act of December 21. 1928 (Be? A), made
<br />a permanent apportionment of Colorado
<br />River water among the Lower Division
<br />States for use within those States.
<br />Congress also authorized the Secretary
<br />to allocate and distribute Colorado River
<br />water within these apportionments to
<br />users in the Lower Division States
<br />(hrough contracts. Congress put the
<br />Secretary in charge of managing and
<br />operating the Colorado River in the
<br />Lower Basin of the Colorado River
<br />system (Lower Basin). This rule
<br />establishes a framework under which
<br />the Secretary will implement the
<br />contractual dislribution of Colorado
<br />
<br />River water in the Lower Division States
<br />on an interstate basis.
<br />If water apportioned for use in a
<br />Lower Division State is not consumed in
<br />[hat State in any year. [he Secretary may
<br />release the unused water for use in
<br />'another Lower Division State. Offstream
<br />storage of Colorado River water and
<br />release of intentionally created unused
<br />apportionment (ICUA) can help the
<br />Lower Division States use available
<br />Colorado River water more effectively.
<br />This rule establishes a process for the
<br />Secretary to Telea~e lCUA. The
<br />Secretary's authority to issue this final
<br />rule stems from various Federal laws
<br />and executive orders, court decisions,
<br />and decrees, particularly the BCPA, the
<br />Supreme Court opinion (Opinion)
<br />rendered June 3.1963 (373 U.s, 546)
<br />and the decree entered March g, 1964
<br />(376 U.S. 340) (Decree), in Arizona v.
<br />California, as supplemented and
<br />amended. A thorough description of
<br />these authorities may be found in the
<br />Background section of the proposed rule
<br />published December 31. 1997. at 62 FR
<br />68493,
<br />Several State agencies commented
<br />that the narrative should be changed. 1n
<br />response to these comments. v{e are
<br />correcting two statements that were
<br />contained in the first paragraph of the
<br />preamble to the proposed rule under II.
<br />Background.
<br />. First, the_ statement that "The
<br />compac:t defined the Colorado River
<br />Basin and divided the seven States into
<br />two basins, an Upper Basin and a Lower
<br />Basin," was incorrect and should have
<br />read: "The compact defined the
<br />Colorado River Basin and divided it into
<br />two sub-basins, an Upper Basin and a
<br />Lower Basin. The compact further
<br />specified Wflich Slates are Upper
<br />D1.....1s10n States ~no which Slates Clre
<br />Lower Division States."
<br />Second. the proposed rule preamble
<br />cited the Colorado River Compact.
<br />approved August 11), \ 92 L as the source
<br />of Ihe definition for "consumptive use."
<br />The correct source of this definition is
<br />the Decree.
<br />Several respondents, particularly
<br />State agencies, expressed concern that
<br />some of the terms in the preamble and
<br />the proposed rule could be interpreted
<br />in ways that are contrary to existing law
<br />because of imprecise wording. These
<br />respondents stated the rule should
<br />facilitate more efficient use of unused
<br />apportionment and surpluses within the
<br />existing authority of (he Secretary under
<br />the Law of the River. We agree tnat this
<br />rule only formalizes the procedures for )
<br />the Secretary to follow in considering,
<br />participating in, and administerin/il d
<br />Storage and Interstate Releas~
<br />Agreements and does not expand or
<br />
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