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I I I I I I I I I I I I I I I I I I I 000483 Nevada Comments on Proposed Off stream Storage Rule April 3, 1998 "water right holder" could encompass holders of state water rights which have no connection to the Colorado River and for which the Secretary has no responsibility or authority. 5. . The proposed rule ought to be modified to accommodate a more workable water ordering procedure. In practice, the authorized entity in the Consuming State will provide notice late in one year ofits request for intentionally created unused apportionment to be released in the next year. Operationally, the timing of the release (e.g., February) during a calendar year often may need to precede the actual creation of the unused apportionment (e.g., June pumping for crops), making it necessary to have some form of advanced certification or commitment that such unused . apportionment will be created. Accordingly, we have suggested changes to deal with this operational issue (our version, attached, at section 414.3(a) (6), (8) and section 414.3 (d)). The Secretary, through reductions in the deliveries to the Storing State, will have the ultimate assurance, of course, that the annual releases will not exceed the annual creation of such unused apportionment. 6. The preamble incorrectly ascribes the definition of "consumptive use" to the 1922 Compact. The 1922 Compact did not define consumptive use, as stated at 62 Federal Register 68493, first paragraph, last sentence. The "diversion-less-retum-f1ow" definition was provided by the Arizona v. California decree (1964), construing the Boulder Canyon Project Act that operates in the Lower Basin. The Upper Basin's 1948 Compact (Art. VI) applies instead the "infIow- outflow method in terms of man-made depletions of the virgin flow at Lee Ferry". The two approaches have yet to be formally rationalized. H. Protection ofIntentionally Created Unused Apportionment for Authorized Entity in the Consuming State. The unused apportionment that is intentionally created for ultimate delivery to an authorized entity in a Consuming State exists'sole{y by reason of implementation of an Interstate Storage Agreement and that entity's investment. For this reason, no other entity can have any claim (equitable or legal) on this water, and it is inconceivable that any Colorado River entitlement was ever intended to include it. , Therefore, we recommend that the final rule should state specifically that intentionally created unused apportionment is not subject to any Colorado River entitlement (present perfected right, other federal entitlement, or Secretarial contract) other than that of the authorized entity in 8 #210155.4