WSP09205

• File Number: 8200.400
• Description: Colorado River Basin Briefing Documents-History-Correspondence
• State: CO
• Basin: Colorado Mainstem
• Water Division: 5
• Date: 11/1/1999
• Author: DOI-BOR
• Title: Offstream Storage of Colorado River Water - Development and Release of Intentionally Created Unused Apportionment in the Lower Division States - Final Rule - 43 CFR Part 414
• Water Supply Pro - Doc Type: Report/Study

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OO'i 81 '?

58990

Federal Register/Vol. 64, No. 21O/Monday, November 1. 1999/Rules and ReguliHions

should be expanded to include the
tribes pursuant to the Secre(~ry's
authority under the BCPA. Tribes
further commented that the proposed
definition of "authorized entity" w1\l
give Slate government a virtual
monopoly on water marketing.
Response: We agree with the general
sugges\ion made by a Stale agency that
"authorized enlity" should be a lWQ-
part definition. This concept was
supported by several other Slate
agencies and water districts. A.s to a
Storing State, for purposes of this rule,
an authorized entity is defint;<d as an
entity that is expressly authorized by
the laws of that State to: (i) Enter into
Storage and Interstate Release
Agreements: and (ii) develop ICUA. As
to a ConsL1ming State, for purposes of
this rule, an authorized entity is defined
as an entity that has authority under the
laws of that State to: (i) enter into
Storage and Interstate Release
Agreements; and (iiJ acquire {he right to
use ICUA. In this way the rull:! is
intended ro be permissive in nalure but
consistent with Slate law. We believe
this two part definition captures
(ommenlS from several Slate agencies
that while express authority is needed
10 store water for use in inter~tate water
transactions and make ICUA available.
express alJthorHy is not necessary for a
consuming State to receive and use
ICUA. We reiterate that we fully expect
[tle Lower Division States (0 enact
measures that will allow the tr\ues ((.I
participate in opportunities covered by
Ihis rule. Moreover, this rule does not
specifically address or preclude
~ndependent actions by the Secretary
regarding tribal storage and water
transfer activities under other
authorities.
We have also expanded thi.s rule to
require that non-Federal parries to the
Storage and lnterstate Release
Agreement provide at the Secrewry's
request any additional supporting data
necessary [0 clearly set forth the details
of the proposed transaction and the
eligibility of the parties 10 participate as
State-authorized entities in the
proposed transaction.
Comme(lt: It is important to
acknowledge that the apportionments of
Colorado River water are made
specifically to the individual States.
Therefore. it is important for the States
to specifically designate the authorized
entities who are entilled to eOler into
Interstate Storage Agreements (now
termed "Storage and Interstate Release
Agreements") 10 ensure use of Colorado
River water remains within a State's
apportionment during any year.
Response: Apportionments of
Colorado River water are made for use

within each specific Lower Division
State. This rule requires that Ihe
authorized entity in the Storing State be
an entity that is expressly authorized
under the laws of tnat State to: 0) enter
into Storage and Interstate Release
Agreements; and (ij) develop ICUA. As
to an authorized entity in a Consuming
State, the rule requ~res tnat it be an
entity that has authority under the laws
of thaI State to: (1) enter into Storage and
lnterstate Release Agreements: and (ii)
acquire the right to use !CUA.

Method for Development of ICVA
{Forbearance}

Comment: Several respondents
commented on whether the final
definition of ICUA should specify what
types of measures or actions the
Secretary will approve for the
development of ICUA.
Response: The measureS that will be
used to develop ICUA are to be
specified in each Storage .and Interstate
Release Agreement and must be
verifiable. The method used to develop
ICUA and the appropriate method of
verification may vary according to the
transaction.

The Timing for the Completion of the
rule

Comment: Several respondenTh asked
for additional time to review the
proposed rule and DPEA <tnd
questioned why the completion of the
rulem3king process appeared to be on a
"fast track."
Response: In developing this rule we
have fonowed the mandates of the
Administrative Procedut'e A.<-t. In fact,
we extended the time for public review
and comment from 61 to 93 days despite
the fact that Ihis rule only formalizes the
existing authority of the Secretary to
enter into Storage and Interstale Release
Agreements and does not expand or
creale this authority. Moreover, we.
reopened the comment period for an
additional 30 days to obtain further
comments. This -extended review period
has given the public numerous
opportunities to review this rule. In
addition, we reviewed and analyzed the
comments submiued during the
reopened comment period and revised
the rule as needed. Finally, the
Secretary will notify the public of the
Secretary's intent to participate in
negotiations to develop a Storage and
Interst3te Release AgreemE'n1 and give
the public further opportunity to
comment before any specific transaction
is implemented.

Tribal Water Rights

Comment: The rule should include an
introductory section that recognizes

Indian holders of present perfected
rights are not required to beneficialty
use their water, are not subject to a loss
or reduction in their water for non-use
or non.benefic.ial use, and are not
subject to State law or State regulatory
control for the on-rese~ation use of
their entitlements.
Response: We recognize the unique
status of presem perfe.cted rights holders
under the Decree and agree that tribal
present perfected rights holders are not
subject to a loss or r~duction in their
water rights for nOll-use. Th~ 1979
supplemental decree entered March 9.
1979 (439 U.s. 419) by the Supreme
Court in Arizona v. California quantifies
and prioritizes tribal fights to the use of
Colorado River water. The 1979
supplemental decree stales that: "Any
W.iter right listed herein may be
exercised only for beneficial uses." We
do not believe it is necessary that the
information be included in an
introductory section for the rule. We
agree that Indian holders of present
perfected rights are nQ[ subjec{ to State
law or State regulatory control for the
on-reservation use of ,heir entitlements.
Comment: lndian tribes should be
permitted to enter into intrastate or
interstate agreements for offstream
storage and marketing of their unused
water off tne reservation under {he
statutory and contractual authority
vested in the Secretary.
. Response: This rule does not apply to
intrastate transa.cti.on5.1'hi~ ru\c applies
only (0 interstate transactions. As
explained in more detail below, we
believe that Storage and Interstate
Re\ease Agreements under this rule can
be implemenled in a nlanner that will
proVide opportunities for tribes to
benefit.
Comment: Severa! tribes commented
that they have been unable to fully
benefit from their water righls because
of, the Federal government's failure {O
provide the tribes with the necessary
financial. technical, and political
assistance to fully develop their water
resources.
Response: We acknowledge this
concern and recognize that a number of
tribes have been unable to use lheir
entitlement due to [he lack of
distribution and delivE'ry sysrems. We
are commiHed to making progress to
help tribes make better use of their
waler rights. For example, a Central
Arizona Project (CAP) distribution
system has been built ror the Ak-Chin
Tribe. A distribution system for the Fan
McDowel! Tribe is under constfLJction
and we have entered into a repayment
contract with the Gila River lndian
Community for construction of a CAP
distribution system. Five of the ten