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<br />Federal Register/Vol. 64. No. 2ID/Monday. November 1. 1999/Rules and Regulations
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<br />58989
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<br />Section 414.5 Water Quality Secretarial approval to implement
<br />, r
<br />This section stales that the Secretary voluntary interstate wster transactions.
<br />does not guarantee {he quality of water !he rule does notaddre~5 or preclud;
<br />released under Srorilge and Interstate J mdep~ndent atUons by the Secretary
<br />Release Agreements and further states, ~.regardJng Trl~~l storage a~d water ..
<br />that the United States is not liable for" , , lra~s~~r activitieS" With, re~ard to the
<br />damages }hat result from water qualit)~ activities covered by tfllS [mal rU,le: I,he
<br />problems. The section slates that the Department encourages Lower Dlvlswn
<br />United S'tates is not responsible for Stales to enacl. measures ~nd take
<br />maintaining or improving water quality actl~n.s that. Will allow ~~'bes to
<br />unless Federal law provides otherwise. pa.rtlclpate In opportunmes ~overed by
<br />This section also states that any entity this rule.. Also. the .Secretary s approval
<br />who diverts, uses, and returns Colorado of. specIfIc tra~sacllons under the r~le
<br />River water must comply with all WIll. be based, In part. on an ana.lysls of
<br />applicable water pollution laws and the Impacts ~hat ~uch a tra~sacu~n may
<br />regulations of the United States and the have on the mlelests ~f Indian trIbes.
<br />Storing and Consuming States, and mLlst T~e Oe1?artmcnt pr~vldes ~ fuller
<br />obtain all applicable permits or licenses diSCUSSIOn of these Issues m ~he
<br />regarding water quality and water Responses to Comments secuo.~~ below.
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<br />pollution matters. IV. Responses to Comments
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<br />Section 414.6 Environmenta1 The followjng is a disCLJSSiO~ of (he
<br />Complia']ce comments received on the proposed
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<br />This section states that the Secretary r~le and th~ DPEA, and our responses.
<br />will ensure environmental complianc(. First, we Will address g~neral co~rnents
<br />with the Natlonal Environmental PoUcy, and our responses. Second: ~e Will
<br />Act (NEPA), the Endangered Species . addr~ss comments on speCifiC .
<br />Act (ESA), and Olher applicable laws provlsions in the proposed nIle. Third,
<br />and executive orders", This section 5tateS we wnt address commentS on the DPEA.
<br />that authorized entities must prepare Fourth, we will respond to specific
<br />and fund all necessary environmental comments received during the second
<br />compliance documents. This secUon comment period.
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<br />als~ ~pedn.es. that the autho~i:led Public Comments on Proposed Rule and
<br />entnles must fund the costs lf1curred by Responses on General Issues
<br />the United States in considering. .. .
<br />participating in, and administering the The follOWIng section presents publIC
<br />proPQs'ed agreement. comments on the proposed rule that are
<br />general in nature. This section includes
<br />Ill. Tribal Issues. comments on the scope of the rule,
<br />
<br />As explained in more detail in the Secretarial discretlon. eligibility to be an
<br />following section of [he prcanlble "authorized entity," the method for
<br />(Responses lO Comments), a number of development of leUA. the timing for the
<br />Indi~n [fibes have expres~ed completion of the rule, tribal water
<br />reservalions and/or opposition to this rights, ground water issues. subsidies.
<br />rul~. In particular, the Colorado River" power issues, concerns of California
<br />Tribal Partnership. often referred to as entities, potential impacts on the Upper
<br />the Ten Tribe Partnership, composed of Division States. concerns over deliveries
<br />ten Indian tribes (Chemehuevi lndian to Mexico, environmental concerns, and
<br />Tribe, Cocorah Indian Tribe, Colorado economic impacts of the flJle.
<br />River Indian Tribes. Fort Mojave lndian
<br />Tribe, Jicarilla Indian Tribe. Navaho
<br />Nation, Ql.lechan Tribe, Northern Ute
<br />Indian Trihe, Soutnern Ute Indian Tribe
<br />and Ute Mounlain Indian Tribe) with
<br />decreed and/or claimed water rights in
<br />the Colorado River, has expressed
<br />opposition to this rule on the ground
<br />that it does not provide specific and
<br />express protection of the Tribes' .~
<br />interests both in making water transfers
<br />and developing tribal water on or off. ..
<br />their reservations.
<br />The Department believes that this rule
<br />should and will benefit Indian tribes,
<br />but it acknowledges that the rule has a
<br />limited scope. The final rule provides a
<br />framework under which State-
<br />authorized entities can request
<br />
<br />Scope of the Rule
<br />
<br />Comment: Reclamation did not hold
<br />public scoping meetings on the rule.
<br />Response: We have conducted this
<br />rutemaklng in accordance with the
<br />Admjnistrative Procedure Act. The
<br />Department expanded the public
<br />comment period for the proposed rule
<br />from 61 to 93 days. In addition to oral
<br />comments submitted at one public
<br />hearing and one public meeting. we
<br />received 49 comment letters from 41
<br />respondents. Of these letters, 24
<br />commented only on the rule, 23
<br />commented on both the proposed rule
<br />and the draft programmatic
<br />environmental assessment (OPEA). and
<br />2 commented only on the UPEA.
<br />
<br />As a result of recei.....ing differing
<br />comments on the definition of
<br />authorized entity and severa! other
<br />[echnical m<ltters. we reopened the
<br />comment period on September 21, 1998
<br />(63'FR 50183) for a 3D-day period
<br />ending October 21, 1998. We asked
<br />interested parties to provide comments
<br />on three specific questions. The
<br />Department received 10 letters from I I
<br />respondents durIng the reopened
<br />comment period. The respondents
<br />induded three State a.gencies, three
<br />water districts, one water authority. one
<br />W<1ter users association. and three
<br />environmental organizations. We
<br />reviewed and analyzed aH pertim~nt
<br />comments and revised the rule based on
<br />Ihese comments. Thus, the pub!ic has
<br />influenced the scope and formulation of
<br />thi.srule.
<br />
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<br />Secretarial Discretion
<br />
<br />Comment: Does the SecretarY of the
<br />Interior have the authority to enter into
<br />an agreement that binds future
<br />Secretaries to commit unused
<br />apportionment to a specific user in a
<br />particular State over a multiple-year
<br />period? .
<br />Response: Yes. The Secretary's release
<br />of leUA in any year will be under
<br />Article 11(8)(6) of the Decree. Tile Decree
<br />does not preclude the Secrelary from
<br />releasing unused apportionment to a
<br />specific user in a particular Slate. The
<br />Secretary wUI agrer. to release ICUA
<br />only during the year in which it is
<br />developed by the storing entity.
<br />Moreover, under ~ 414.3(a)(I 2) of [he
<br />rule, the Secretary will commit in the
<br />Storage and Interstate Release
<br />Agreement to release leUA after the
<br />storing entity has certified to the
<br />Secretary, and the Secretary has verified
<br />in accordance wi.th ~ <\ \<\.3{a){15), that
<br />the quantity of leUA requested by the
<br />consuming entity has been developed or
<br />will be developed in that year. Further,
<br />the ICUA. re~ease_d by the Secretary wi!!
<br />be limited to the quantity developed by
<br />a storing e.ntily during that year.
<br />
<br />Eligibility To Be an Authorized Entity
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<br />Note: There Is also a dIscussion on the
<br />contractual requirements ne{".essary to qualify
<br />as an authorlzed entity In thE' section of this
<br />preilmblc addressing comments received
<br />during the reopened comment period.
<br />
<br />Comment: The most frequently
<br />mentioned comment cuncerned the
<br />deOnition for the term "authorized
<br />entity." Some thought "authorized
<br />entity" should be defined broadly [0
<br />enable the widest possible participation
<br />and olhers thought rhe lerm should be
<br />deFined very narrowly 10 limit
<br />participation to State agencies. Indian
<br />tribes commented thal the definition
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