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I I I I I I I I I I I I I I I I I I I 04/03/1998 16:33 818-543-4685 COLORADO RIVER BOARD 000463 PAGE 04 United States Bureau of Reclamation Mr. Dale Ensminger April 3.1998 Page 3 Use of Article IIlB)( 6) The Proposed Rule uses Article II(B)(6) of the 1964 Deeree in Arizona v. California as the vehicle to effectuate the interstate storage and subsequent transfer of water. However, Article 11(8)(6) specifically dea1s with the l!!!!1Iml detennination of the Secretaty of the Interior to make apportioned. but unused water, available to the other Lower Division states. Section 4l4.3(a) of the Proposed Rule will be used to direct the use of apportioned, but lUlused water. through interstate storage agreements, wbichappears to USlIqJthe discretion of the Secretary to make his annual detennination under Article II(B)(6). For example. through a muhiple-year interstate storage agreement. Arizona can store its basic and/or surplus 1\ll1lsed water for another Lower Division state prior to it b."iDg made available to meet other water needs. By implying that the first priority for the apponionment ofwater under Article II(B)(6) is for the offilb........ storage of water for interstate use, the Secretary's discretion in meeting the water needs oftbose entities who hold contracts under Section 5 of the Boulder Canyon Project Act is limited, in effi::ct. to making water available in the following order 1) a specific purpose, oflStn:am storage, 2) the benefit of a specific Lower Division state and 3) a specific entity within a Lower Division state. With implementation oftbe Proposed Rule, as written, the secretary may 110 longer be able to weigh each state's need fur water in the cunent year and appurtion the lUlused water accordingly. FurthClnaue, the Proposed Rule provides fur unused water to be made available for the u1timate benefit and use by a specific entity within a state which may oot be in accordance with that state's desires or its priority system. This is done without addressing the required approvals De('--y if water is being made available to an authorized entity through an interstate storage ugra:ment that is not in accordance with a state's existing priority system. The Proposed Rule also fuils to address how COl\Jp<'tiug demands fur water under muhiplc storage ~s will be handlM. Will it be based upon the date of the storage BgreeIlJICIlt or some other criterion? . Consistencv The definitions and use of terms in the Proposed Rule ditTer from how they are used and defined in the other components of the "Law of the River." Terms such as "smplus water." "unused entitlement," "unused apportionment," and "intentional1y created" unused entitlement or apportionment must be complete and defined to be fully understood. The Proposed Rule needs to be clarified so that it prevents any misunderst~ or misinterpretation now and in the future. AutbnmM Entities The latest draft of California's 4.4 Plan (entitled "Colorado River Board 4.4 Plan, CaIifornia's Use oflts Colorado River Allocation", dated Dccanber 17, 1997) includes the potential to participate in the Arizona Water Bank aDd other Ud:e1'State programs. As such, CalifOrnia and agencies within California maywant to partir.ipat~ in inlerstate prognuns fur the offstream storage of Colorado River