BOARD00943

• Board Meeting Date: 11/22/1999
• Description: WSP Section - Colorado River Basin Issues - Offstream Storage of Colorado River Water - Development and Release of Intentionally Created Unused Apportionment in the Lower Division States - Final Rule
• Board Meetings - Doc Type: Memo

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59008

Federal Register/Vol. 64, No. 21O/Monday, November I, 1999/Rules and Regulations

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(i) It will ensure that the Storing
State's consumptive use of Colorado
River water will be decreased by a
quantity sufficient to develop the
requested quantity of lCVA; and
(il) Any actions that the storing entity
takes will be consistent with its State' s
laws.
(9) The agreement must include a
description of:
(i) The actions the authorized entity
will take to develop ICUA:
(il) Potential actions to decrease the
authorized entity's consumptive use of
Colorado River water;
(iii) The means by which the
development of the ICUA will be
enforceable by the storing entity; and
(iv) The notice given to entitlement
holders. including Indian tribes. of
opportunities to participate in
development of this ICUA.
(10) The agreement must specify that
the storing entity will certify to the
Secretary that ICUA has been or will be
developed that otherwise would not
have existed. The certification must:
(i) ldentify the quantity, the means,
and the entity by which ICUA has been
or will be developed: and
(ii) Ask the Secretary to make the
ICUA available to the consuming entity
under Article II(B)(6) of the Decree and
the Storage and Interstate Release
Agreement.
(11) The agreement must specIfy a
procedure for verifying development of
the lCUA appropriate to the manner in
which it is developed.
(12) The agreement must specify that
the Secretary will release leUA
developed by the storing entity:
(i) In accordance with a request of the
consuming entity;
(ii) In accordance with the tenns of
the Storage and Interstate Release
Agreement;
(iii) Only for use by the consuming
entity and not for use by other
entitlement holders; and
(iv) In accordance with the terms of
the Storage and Interstate Release
Agreement, the BCPA. Article II(B)(6) of
the Decree and all other applicable laws
and executive orders.
(13) The agreement must specify that
IeUA shall be released to the consuming
entity only in the year and to the extent
that ICUA is developed by the storing
entity by reducing Colorado River water
use within the Storing State.
(J 4) The agreement must specify that
the Secretary will release ICUA only
after the Secretary has detennined that
all necessary actions have been taken
under this part.
(IS) The agreement must specify that
before releasing IeUA the Secretary
must first determine that the storing
entity:

(i) Stored water in accordance with
the Storage and Interstate Release
Agreement in quantities sufficient to
support the development of the ICUA
requested by the consuming entity: and
(ii) Certified to the satisfaction of the
Secretary that the quantity of ICUA
requested by the consuming entity has
been developed in that year or will be
developed in that year under ~ 414,3(1).
(J 6) The agreement must specify that
the non-Federal parties to the Storage
and Interstate Release Agreement will
indemnify the United States. its
employees. agents, subcontractors,
successors. or assigns from loss or claim
for damages and from liability to
persons or property. direct or indirect.
and loss or claim of any nature
whatsoever arising by reason of the
actions caken by the non-federal parties
to the Storage and Interstate Release
Agreement under this part.
(17) The agreement must specify the
extent to which facilities constructed or
financed by the United States will be
used to store. convey. or distribute
water associated with a Storage and
Interstate Release Agreement.
(18) The agreement must include any
other provisions that the parties deem
appropriate.
(b) How to address f1nancial
considerations. The Secretary will not
execute an agreement that has adverse
impacts on the financial interests of the
United States, Financial details between
and among the non-Federal parties need
not be included in the Storage and
Interstate Release Agreement but instead
can be the subject of separate
agreements. The Secretary need not be
a party to the separate agreements.
(c) How the Secrerary will execu'e
storage and interstate release
agreements. The Regional Director for
the Bureau of Reclamation's Lower
Colorado Region (Regional Director)
may execute and administer a Storage
and Interstate Release Agreement on
behalf of the Secretary. The Secretary
will notIfy the public of his/her intent.
to participate in negotiations to develop
a Storage and Interstate Release
Agreement and provide a means for
public input. In considering whether to
execute a Storage and Interstate Release
Agreement, the Secretary may request.
and the non-Federal parties must
provide, any additional supporting data
necessary to clearly set forth both the
details of the proposed transaction and
the eligibility of 'he parties to
participate as State-authorized entities
in the proposed transaction. The
Secretary will also consider: applicable
law and executive orders; applicable
contracts: potential effects on trust
resources; potential effects on

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entitlement holders. including Indian
tribes; potential impacts on the Upper
Division States; potential effects on
third parties; potential environmental
impacts and potential effects on
threatened and endangered species;
comments from interested parties.
particularly panies who may be affected
by the proposed action; comments from
the State agencies responsible for
consulting with the Secretary on matters
related to the Colorado River; and ather
relevant factors. including the direct or
indirect consequences of the proposed
Storage and Interstate Release
Agreement on the financial interests of
the United States. Based on the
consideration of the factors in this
section. the Secretary may execute ot'
decide not to execute a Storage and
Interstate Release Agreement.
(d) Assigning interesrs,o an
authorized entity. Non.federal parties
to a Storage and Interstate Release
Agreement may assign their interests in
the Agreement to authorized entities.
The assignment can be in whole or in
part. The assignment can only be made
if all parties to the agreement approve.
{e) Requirement for contracts under
the Boulder Canyon Project Act. Release
or diversion of Colorado River water for
storage under this part must be
supported by a water delivery contract
with the Secretary in accordance with
Section 5 of the BCPA The only
exception to this requirement is storage
of Article ll(D) (of the Decree) water by
Federal or tribal entitlement holders.
The release or diversion of Colorado
River water that has been developed or
will be developed as ICUA under this
part also must be supported by a Section
5 water delivery contract.
(1) An authorized entity may satisfy
the requirement of this section through
a direct contract with the Secretary. An
authorized entlty also may satisfy the
Section 5 requirement of the BCP A. for
purposes of this part, through a valid
subcontract with an entitlement holder
that is authorized by the Secretary to
subcontract for the delivery of all or a
portion of its entitlement.
(2) For storing entities that do not
otherwise hold a contract or valid
subcontract for the delivery of the water
to be stored. the Storage and Interstate
Release Agreement will serve as the
vehicle for satisfying the Section 5
requirement for the release or diversion
of that water.
(3) For consuming entities that do not
otherwise hold a contract or valid
subcontract for the delivery of the water
to be released by the Secretary as ICUA,
the Storage and Interstate Release
Agreement will serve as the vehicle for

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