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<br />OOiS1l> <br /> <br />Federal Register/Vol. 64. No. 21O/Monday. November I. 1999/Rules and Regulations <br /> <br />58981 <br /> <br />create authority to do so. The Secretary <br />has the authority. under the Law of th~ <br />River. to allocate and distribute waters <br />of the mainstream of the Colorado River <br />in the Lower Basin consistent with the:' <br />Decree. <br />11. Final Rule as Adopted <br />Changes Made in This Final Ruff <br />We have concluded tha[ a number of <br />changes from the proposed rule are <br />necessary and appropriate 10 respond to <br />comments. The5e revi5ions d-aT'ify tne <br />basic intent of the proposed rule and are <br />summariled in the following <br />paragraphs. <br />. Reslalemenl of Title and Purpose of <br />the RuJ~. We have clarified the purpose- <br />of this rule in ~ 414.1. This rule <br />establishes a procedural framework for <br />the Secretary to follow in cGt1sidering. <br />paniciparlng in, and administering <br />Storage and Interstate Release <br />Agreements among the Lower Division <br />Stales that would permit Statc- <br />authorized entities to store Colorado <br />River water offstream, develop lCUA. <br />and make ICUA available to the <br />Secretary for release and use in another <br />Lower Division State utilizing Storage <br />and Interstate Release Agreements. <br />Colorado River water stored in order to <br />develop ICUA will always be put to us~ <br />in the Storing Sta~. . <br />Under lhis rule, the authorIzed entity <br />in the Sloring State (storing entity) wi~l <br />not redeem storage credits for delivery <br />tu the Consuming State.~For this reason, <br />the terms "storage c:redHs" and ~ . <br />"redemption" are not necessary and. <br />have been deleted, Instead. when the <br />authorized entity in the Consuming <br />State (consuming entity) requests water <br />under a Storage and Interstate Release <br />Agreement. the storing entHy will <br />reduce the Storing State's consumptive <br />use of Colorado River water. thereby <br />developing ICUA. The Secretary will <br />relea~e the ICUA to [he consuming <br />entity for use in the Consuming Stale. <br />. Definitions. We added several <br />definitions from [he Compact, includi.rg <br />"Colorado River Basin," "Colorado <br />River System," and "Upper Divisj(m <br />States," and added, deleted, or modified <br />several other definiljons in this rule to <br />c1<1rify the intent where necessar,y. New <br />definitions were also added for "BCPA," <br />"consumiog entity," "storing entilY." <br />and "water delivery contract."' The <br />following definitions were deleted: <br />"Contractor." "Federal entitlement <br />holder," "Presem perfected right or <br />PPR," "storage credit, " and "unused <br />entitlement." The den nition for <br />"Interstate Storage Agreement" was <br />revised and the term used in the rule <br /> <br />was renameo "Storage and Interstate <br />Release Agreement." <br />We redefined "authorized emHy" <br />creating a two-part definition. As to a <br />SlClring State, for purposes or lhis rule. <br />an authorized entity is defined as an <br />entity in the Storing State tha{ is <br />expressly authorized by the laws of that <br />state to enter into Storage and Interstate <br />Release Agreements and to develop <br />ICUA. As to a Consuming State, for <br />purposes of this rule, an authorized <br />entity is defined as an entity in the <br />Consuming State that has authority <br />under the laws of {hat State {o enter into <br />Storage and Inlerstate Release <br />Agreements and to acquire the right to <br />use leUA. <br />. SlOrage of Water. In the proposed. <br />rule, we did not clearly describe the <br />type of water that is eligible to be stored <br />undf:'r a Storage and Interslate ReJe~se <br />Agreement. This rule, in 3414,3(a)(2}, <br />explains that the water stored within a <br />Storjng State for future use under a . <br />Storage and Interstate Releas~ . ? <br />Agreement is water that would <br />otherWise be unused in the Storing~ <br />Slate, but that is within the Storing .., <br />Slate's basic or surplus apporlionmen~. <br />1t is important, as a policy matler, that <br />water be offered 1O all entitlement . <br />holderS in a Storing State before it is <br />stored for interstate purposes so that. as <br />one commenting Stale noted. a Stat~. . <br />authorized entity will not be put in a <br />position Clf "competition with the legal, <br />right to deprive lower priority.. <br />entitlement holders (in the Storing <br />State) of their Colorado River water." <br />Accordingly. in order to qualify as ~ <br />unused apportionment, the water within <br />the Storing State's basic or unused <br />apportionment that is slored for <br />interstate transaclions under this rule <br />must be offered first to all entitlement <br />holders within the Storing State. <br />The rule. in a new 9414 ,3(a)\3), <br />explains that rhe Consuming State's <br />unused basic or unused surplus <br />apportionments may also be stored in <br />the Storing State to support an interstate <br />water transaction. We also clarified in <br />this section that unused apportionment <br />of the Consuming State may be made <br />available for storage in the Storing Stale <br />only in accordance with Article 11(8)(6) <br />of the Decree. If unused apportionment <br />from the Consuming StBte is to be stored <br />under a Storage and lnterstate Release <br />Agreement, the rule provides that the <br />Secretary will make unused <br />apportionment of the Consuming Stale <br />available to the storing entily in <br />accClfd...nc.~ with the terms of a Storage <br />and interstate Release Agreement. This <br />rule also has a new 3 414.3(a)(6) that <br />provides that a Storage and Interstate <br />Release Agreement must identify a <br /> <br />procedure for the Secretary to [allow to <br />verify and account for rhe quantity of <br />water stored in accordance with (he <br />Storage and Interstate Release <br />Agreement. <br />. Development of leVA. We added a <br />requirem'enrii1 ~r4"14..3(a)(9) th~H Ih~ .. <br />Slorage ~rid I~terstate Release. <br />Agreement must describe the notice <br />given to entitlement holders, includ1ng <br />Indian tribes. of oppo~tunities to... . <br />participate"in the development of ICUA... <br />We added a requirement in . <br />~ 414.3(a)(1 0) that the storing entity <br />must identify the quantity. the means, <br />and the entity by which ICUA will be <br />developed. We also added a paragraph <br />in 9 414.3(a)(i 1) to requi're the StOf<lge <br />and Interstate Release Agreement to <br />specify the procedure for verification of <br />the development of the ICVA. Both the <br />means by which leu A. will be <br />developed and the method of <br />verification will be set forth in the <br />Storage and Interstate Release <br />Agreement and may vary according to <br />the transaction. However, the means to <br />develop ICUA must be consistent wHh <br />the laws of the Storing State, Finally, <br />under the final rule, nothing in the <br />Storage and lnters~a!e Releas~ . <br />Agreement shall limit the Secretary's <br />authority to use independent means [0 <br />verify the existence of leUA. . <br />. Release or lCUA. We modified <br />~ 414,3(a) to reDeet that the Seerelar~ <br />will be a party to Storage and Interstate" <br />Release Agreements. We added a new <br />~ 414,3(a)(12) that states that the Storage <br />and Interstate Release Agreement will <br />specify that the Secretary will only <br />release ICUA to the consuming entity <br />and will not release it to other <br />entitlement holders. ThJs section <br />requires the release of IeUA be done in <br />accordance with the terms of the Storage <br />and Interstate Release Agreement, the <br />Be?A, Article !I(B)(6) of the Decree, and <br />all other applicable law~ and executive <br />orders. We added a requirement in <br />3 414.3(a)(l3) that the Storage and <br />Interstate Release Agreement speck~ <br />that leVA will be released to the <br />consuming entity only in the year ane.! <br />to the extent that rCVA is developed by <br />the storing entily, We added a <br />requirement in ~ 414.3(a)(14) that the <br />Secretary would only release lCUA after <br />determining that all necessary actions <br />have been taken under the rule. We <br />added a requirement in 9414.3(20)(15) <br />t1~a~ tpe Secretary, before releasing <br />WUA. must first determine that the <br />storing entity stored water in sufficient <br />quantities to support the development <br />oflCUA requested by the consuming <br />entity and.be satisfied that the storing <br />entity either (i) has developed the <br />quantity of ICUA requested by the <br />