WSP13003

• File Number: 8282.500
• Description: Coordinated Long Range Operation of Colorado River Reservoirs
• Basin: Colorado Mainstem
• Date: 3/29/2005
• Author: Federal Register
• Title: Long-Range Operating Criteria 6th Review Initiated 1/15/2002 Federal Register notice
• Water Supply Pro - Doc Type: Publication

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Federal Register/Vol. 70, No. 59/Tuesday, March 29, 2005/Notices

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of the total capacity of the powerplant
that is physically available for
generation.
Synopsis of Comments and
Responses: Cited below is a synopsis of
the comments received during the sixth
review of the Operating Criteria and
responses to those comments. The
number(s) in parentheses following each
comment refer(s) to the party that made
the comment (please see the
SUPPLEMENTARY INFORMATION section of
this notice for a numbered list of the
commenting parties).
Comment No. l-(Letter No.2):
Reclamation must draft and implement
the Operating Criteria in accordance
with Federal law, which includes * * *
treaties establishing Indian reservations
and their reserved water rights. * * *
Accordingly, the Quechan Tribe is
extremely concerned that the Operating
Criteria and its implementation not
interfere with the tribe's senior
perfected federal reserved water
rights. * * * The tribe requests that
Reclamation review its Operating
Criteria in that light, and make any
necessary modifications.
Response: The Operating Criteria do
not affect the Quechan Tribe's senior
water rights to use all of its Present
Perfected Rights, including any
additional rights granted in a
supplemental decree. The Operating
Criteria specifically state that they will
be administered consistent with
applicable federal laws. Some issues
regarding the water rights of the
Quechan Tribe are pending in active
litigation before the United States
Supreme Court in Arizona v. California.
The Operating Criteria will be
administered in a manner consistent
with any further decisions from the
Court in this regard. The Deparhnent of
the Interior notes that the Court has
established a priority date of January 9,
1884, for the federal reserved rights
awarded to the tribe to date.
Comment No. 2-(Letter No.2): The
Quechan Tribe is also concerned that
the Operating Criteria and its
implementation not inappropriately
facilitate, validate, or permanently
secure use by others of Colorado River
water that the tribe is not beneficially
using. * * * Reclamation should
therefore not designate water as
"surplus" to the extent that such
designation makes the water available
for others.
Response: On an annual basis,
determinations of availability of
"surplus" water are made as part of the
Annual Operating Plan process, and are
based upon the Interim Surplus
Guidelines adopted by the Secretary of
the Interior (66 FR 7772-82).

Determinations of "surplus" conditions
are consistent with the provisions of
Article II(B)(2) of the Decree entered by
the United States Supreme Court in
Arizona v. California, 376 U.S. 340, 342
(1964). The Deparhnent does not believe
that the Operating Criteria or the Interim
Surplus Guidelines inappropriately
facilitate, validate, or permanently
secure use by others of Colorado River
water that the tribe is not using at this
time. Nor does the Department believe
that the Operating Criteria would
preclude the tribe or any entitlement
holder from using their Colorado River
entitlement in the future. In short, the
Operating Criteria do not alter the
quantity or priority of tribal
entitlements.
Comment No. 3-(Letter No.2): The
Quechan Tribe asks that Reclamation
consider whether the present and future
plans for tribal water marketing and
banking mandate modification to the
Operating Criteria, particularly in light
of Reclamation's trust responsibilities to
Indian tribes and their members.
Response: The Deparhnent does not
believe that a change to the Operating
Criteria is warranted due to any plans
that the tribe may have with respect to
future marketing and banking of tribal
water. The Operating Criteria do not
define nor will they alter the quantity or
priority of tribal entitlements. The
Operating Criteria provide for the
coordinated long-range operation of the
reservoirs constructed and operated
under the authority of the Colorado
River Storage Project Act and the
Boulder Canyon Project Act for the
purposes of complying with and
carrying out the provisions of the
Colorado River Compact, Upper
Colorado River Basin Compact, and
Mexican Water Treaty.
Comment No. 4-(Letter No.2): The
Quechan Tribe asks that Reclamation
consider whether Arizona's and
Nevada's full use of their allohnents
mandates modification to the Operating
Criteria, particularly in light of
Reclamation's trust responsibilities to
Indian tribes and their members.
Response: The Deparhnent does not
believe that a change to the Operating
Criteria is warranted due to Arizona's
and Nevada's current estimated use of
Colorado River water. The Operating
Criteria do not define nor will they alter
state apportionments or the rights of
individual entities to Colorado River
water.
Comment No. 5-(Letter No.2): The
Quechan Tribe asks that Reclamation
consider whether the overallocation of
the Colorado River mandates
modification to the Operating Criteria,
particularly in light of Reclamation's

trust responsibilities to Indian tribes
and their members. Please note that the
tribe has proposed a Tribal Accounting
Pool in Lake Mead to allow
undeveloped tribal waters to be tracked
by an in-reservoir accounting system.
Response: The Deparhnent does not
believe that a change to the Operating
Criteria is warranted due to allocations
of the Colorado River. The Operating
Criteria implement and carry out the
provisions of the Colorado River
Compact, Upper Colorado River Basin
Compact, and Mexican Water Treaty, as
well as federal statutory law. These
sources of the basin and state
allocations to Colorado River water
control Reclamation actions pursuant to
the Operating Criteria. While annual
yield calculations made early in the
20th century have been revised
pursuant to additional data, the
Operating Criteria do not define or alter
any rights of individual entities to
Colorado River water.
The Department acknowledges that
the Ten Tribes Partnership (in
comments to Reclamation on the Draft
Interim Surplus Criteria Environmental
Impact Statement) proposed the Tribal
Accounting Pool (TAP) in Lake Mead.
The TAP was a proposed methodology
to track the amounts of undeveloped
tribal water and determine the portion
of surplus, normal, and shortage water
delivered to other non-partnership
Lower Basin users as a result of
undeveloped Ten Tribes' water in the
Lower Basin. The Department of the
Interior did not include the TAP
methodology as part of the Interim
Surplus Guidelines and does not believe
that revision of the Operating Criteria to
include the TAP methodology is
appropriate. See e.g., U.S. Deparhnent of
the Interior, Response to Ten Tribes
Partnership, Interim Surplus
Guidelines. Final Environmental Impact
Statement, Volume III at page B-208
(Comment 13).
Comment No. 6-(Letter No.2): The
Quechan Tribe asks Reclamation to
consider whether Reclamation should
adopt the Operating Criteria as a rule.
pursuant to the Administrative
Procedure Act.
Response: The Administrative
Procedure Act (AP A) was originally
enacted in 1946, was significantly
amended in 1966, and has been
subsequently modified by Congress.
Primary purposes of the AP A are (1) to
require agencies to keep the public
informed on organization, procedures,
and rules; (2) to provide for public
participation in the rulemaking process;
(3) to prescribe uniform standards of
conduct for rulemaking and
adjudicatory proceedings; and (4) to