WSP05136

• File Number: 8200.400
• Description: Colorado River Basin Briefing Documents-History-Correspondence
• State: CO
• Basin: Colorado Mainstem
• Water Division: 5
• Date: 10/1/1999
• Author: DOI-BOR
• Title: Programmatic Environmental Assessment-Rulemaking-Offstream Storage Colorado River Water - Development-Release Intentionally Created Unused Apportionment - Lower Division States - Appendix H-Section II
• Water Supply Pro - Doc Type: Report/Study

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as the Arizona Water Banking Authority, do not hold such entitlements.
Also, it is conceivable that other state authorized entities who
either do not hold an entitlement or hold only a transferred interest
in an entitlement will be involved in interstate storage agreements.

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2. THE DEFINITION OF INTENTIONALLY CREATED UNUSED APPORTIONMENT

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The definition provided in section 414.2 is confusing and lacks
specificity. Intentionally created unused apportionment is Colorado
River water apportioned to a Storing State, whose use is purposefully
foregone by the Storing State, pursuant to an Interstate Storage
Agreement. Intentionally created unused apportionment must be
delivered to the authorized entity of a Consuming State in the year it
is made available.

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The rules should defer
delineate how water use in a
in order to create the water
created unused apportionment.

to state law of the Storing State to
Storing State can and can not be foregone
necessary to create intentionally

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3 . THE TYPE OF WATER THAT CAN BE STORED

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Section 414.3 indicates that three types of water can be stored
pursuant to an interstate storage agreement:

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1. Basic Apportionment of the Storing State
2. Unused Basic Apportionment of the Consuming State, and
3. Unused Surplus Apportionment of the Consuming State

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First, the term II unused " apportionment may indicate that this
water is not reasonably and beneficially used. Of course, this is not
true if the water is stored. Thus, the word "unusedll should be
replaced with "unappliedll or "undelivered.1I Also, IIbasic
apportionment of the storing state II is not qualified with "unused" in
this part of the rule. If there is a significance between the first,
and the second and third types of water that can be stored, it should
be explained. If there is not, all three of the types of water than
can be stored should be similarly qualified.

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Second, it is unclear how basic apportionment of the Storing
State can be stored pursuant to an interstate storage agreement. One
interpretation is that Arizona could store its own Basic
apportionment. But this is intrastate storage, a topic that the Rule
proposed not to address. A second interpretation is that either
California or Nevada could store Arizona's Basic Apportionment. This
would entail an interstate transfer of Colorado River Water, a topic
not thoroughly discussed in the rule. The section by section analysis
of section 414.1 (Purpose) on page 68495 of the Federal Register
explains that "water allocated but not taken by water entitlement
holders within the State where the storage occurs..1I can be stored
pursuant to an interstate storage agreement. This passage seems to
endorse the idea that Nevada or California could pay an Arizona
entitlement holder for their water, and then store that water in
Arizona, for later redemption credit. The Secretary1s intent with

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