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I I I I I I I I I I I I I I I I I I I OOlHS3 Nevada Comments on Proposed Off stream Storage Rule April 3, 1998 D. Some of the specific content required of the Interstate Storage Agreement by the proposed rule ought to be modified slightly to make it more workable for a large-scale transaction involving the placement of water into storage over an, extended period. What is contemplated presently by the Commission and the Authority is a transaction that, while it likely will have a target as to the aggregate water volume to be stored by the end of the "put" phase (e.g., eight to twelve years), will not, at the front end, fix annual amounts of "put". Annual "puts" would be detennined under a procedure that would take into account numerous contemporary conditions, including water use and cropping plans of participating Arizona entitlement holders and CAP aqueduct conveyance schedules, priorities, pricing, and capacities. Given such factors, a cumulative minimum and maximum amount of "put", recited at the front end of a multi-year, large-scale transaction is strongly preferred. - Presumably, most of the candidate storage facilities can be specifically located at the front end of the transaction. It is possible, however, that some can be only generally described at that time. Likewise, identification at that time of every entity to store the water may not be practicable; to the extent not, a general description of candidate entities might be more reasonable. In sum, the proposed rule appears to require that the Interstate Storage Agreement specifY with particularity a few matters that in practice may not be fully known when this multi-year agreement is executed and that might better be described generally. The above-noted topics itemized in section 414.3(a) ought accordingly to be addressed in the Interstate Storage Agreement with more flexibility. Our recommended changes in that regard can be found in our version of the rule, at section 414.3(a). E. Response to the request for comment (62 Federal Register 684995) on the permissible mechanisms for the intentional creation of unused apportionment. 1. Mechanisms. The final rule should amplify the definition of intentionally created unused apportiorunent only as necessary to assure compliance with article II(B)( 6) of the Decree. The final rule need only specifY that (1) the existence of intentionally created unused apportiorunent must be reasonably verifiable and must be the consequence ofthe implementation of the Interstate Storage Agreement, and (2) the measures by which such unused apportiorunent is created must be consistent with applicable federal and state law (e.g., Arizona law authorizes one measure only). 5 1210155.4