WSP11852

• File Number: 8200.400
• Description: Colorado River Basin Briefing Documents-History-Correspondence
• State: CO
• Basin: Colorado Mainstem
• Water Division: 5
• Date: 10/1/1999
• Author: DOI-BOR
• Title: Programmatic Environmental Assessment-Rulemaking-Offstream Storage Colorado River Water - Development-Release Intentionally Created Unused Apportionment - Lower Division States - Appendix H-Section I
• Water Supply Pro - Doc Type: Report/Study

I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I

000303

Comments on Ouestion 1:

Comment: One State agency and two water districts cite the BCP A and the Decree to
support their view that an authorized entity must have a contract with the Secretary. Two State
agencies, one water district, and one water authority commented that an authorized entity need
not be an entitlement holder to store water and make it available to a Consuming State under an
Interstate Storage Agreement (now termed a "Storage and Interstate Release Agreement"): The
latter group recognizes that the BCP A and the Decree require all diversions of Colorado River
water from the mainstream to be based on an entitlement. However, these respondents believe
there is no statutory requirement for the authorized entity to have a direct contract with the
Secretary in order to fulfill its responsibilities to store its own State's unused apportionment.
Under their reasoning, the authorized entity can arrange for storage and ensure the availability of
unused apportionment in the future through existing contractual arrangements with other parties
that have entitlements through contracts with the Secretary.

Response: With the exception of Federal and Tribal rights identified in Article ll(D) of the
Decree, all diversions of water from the Colorado River for use within the Lower Division States
require a contract with the Secretary. This is specified in ~ 5 of the BCPA and confirmed by the
Decree in Arizona v. California. Under this rule diversions of Colorado River water will occur in
two circumstances. The first is when water is taken from the river and stored off-stream by the
storing entity and the second is when ICUA has been developed and that water is released by the
Secretary for use by the consuming entity.

For authorized entities which do not hold a Federal or Tribal entitlement recognized in
Article ll(D) of the Decree, the final rule allows for the storage of Colorado River water either
through a direct contract with the Secretary or through a valid subcontract with an entitlement
holder. For the release or diversion ofICUA to the consuming entity, the Storage and Interstate
Release Agreement, to which the Secretary will be a party, satisfies the ~ 5 requirement,

Comments on Question 2:

Comment: One State agency and one water district believe that sufficient statutory and
contractual authorities exist to allow the authorized entity to take water for banking purposes that
otherwise would be unused in that State. These parties believe the authorized entity does not
need to hold its own entitlement because sufficient legal authority already exists under applicable
laws and contracts. The State agency states that not all end users of Colorado River water are
required to have entitlements or contracts with the Secretary. The State agency further contends
that the Colorado River Basin Project Act [43 U.S.C. 1524(b)] makes a direct contract between
the Secretary and end-users of Colorado River water in Arizona discretionary.

Response: The Department recognizes in new ~ 414.3(e) that existing contracts or
Federal or Tribal entitlements recognized in Article ll(D) of the Decree may allow for the delivery
of water for storage under this rule. These include direct contracts between authorized entities

37