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<br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br /> <br />: <br /> <br />0004SZ <br /> <br />Nevada Comments on <br />Proposed Olfstream Storage Rule <br />April 3, 1998 <br /> <br />2. The proposed rule incorrectly refers to water being placed into storage <br />as "unused basic apportionment" or "unused entitlement." <br /> <br />We believe the proposed rule incorrectly employs the concept of an "unused entitlement" <br />and misuses the term ''unused apportionment." "Unused entitlement" is defined as "water that is <br />made available to but not scheduled and used by an entitlement holder. . . ." However, diversion <br />of water pursuant to an Interstate Storage Agreement must occur pursuant to a section 5 contract <br />and storage constitutes the use of the contract entitlement. By definition, therefore, water placed <br />into storage pursuant to an interstate storage agreement cannot be "unused entitlement." <br /> <br />While the definition of "unused apportionment" as "water. . . which is not put to <br />beneficial consumptive use during that year within that State" is correct, we believe the term is <br />incorrectly used. Section 414 .3 (a) describes an interstate storage agreement as "a1lowir.g" an <br />authorized entity in a Storing State to store "unused entitlement and/or unused apportionment. . . <br />." As noted above, "unused entitlement" becomes "used" upon diversion and storage. The same <br />is true when apportionment of the Storing State that otherwise might be used is diverted for <br />storage. The only "unused apportionment" that can be stored is unused apportionment of the <br />Consuming State made available by the Secretary for use (storage) in the Storing State. <br /> <br />Finally, while the Interstate Storage Agreement may "provide for" storage of unused <br />apportionment of the Consuming State, the diversion of such water is "authorized by (i.e., <br />"allowed") by the section 5 contract of the Storing State entity that actually will divert the water <br />after the Secretary has released it for use in the Storing State pursuant to article II (B) (6). <br /> <br />3. The proposed rule inconsistently refers to "authorized entities of" a <br />State and "authorized entities in" a State. <br /> <br />We advise the consistent use of the preposition "in", in order to avoid any interpretation <br />that might disqualifY public entities that are subdivisions of a state but are not state agencies. <br />Entities "of' a state could be construed to apply only to state agencies, precluding subdivisions of <br />a state. <br /> <br />4. The reference to "water rights holders" in the approval section of the <br />proposed rule is too inexact. <br /> <br />Section 414.3(b) now provides that, in reviewing an interstate storage agreement, the <br />Secretary will consider among other things, "potential effects on water rights holders". The <br />Secretary's jurisdiction and responsibility more appropriately relate to a holder of an "entitlement" <br />or a "Federal entitlement holder", terms that are defined under section 414.2. The loose phrase <br /> <br />7 <br /> <br />#210155.4 <br />