[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Proposed Rules]
[Pages 35167-35172]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16184]
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DEPARTMENT OF THE INTERIOR
25 CFR Part 171
RIN 1076-AD44
Irrigation Projects and Systems
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Indian Affairs is revising its regulations
governing irrigation projects. The purpose of the revisions is to make
it easier to read and understand for the customers of Indian irrigation
projects; provide for consistent administration; establish the process
for updating practices, policies, and procedures for the
administration, operation, maintenance, and rehabilitation of
irrigation projects; and provide uniform accounting and record keeping
procedures.
DATES: You may send us written comments. We must receive them by
September 3, 1996.
ADDRESSES: You must mail or hand carry your comments to Terrance
Virden, Acting Director, Office of Trust Responsibilities, Bureau of
Indian Affairs, Department of the Interior, 1849 C Street, N.W., MS
4513 MIB, Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Ross Mooney, Chief, Branch of
Irrigation and Power, Division of Water and Land Resources, Bureau of
Indian Affairs, Department of the Interior, 1849 C Street, N.W., Mail
Stop 4513 MIB, Washington, D.C. 20240, Phone Number (202) 208-5480.
SUPPLEMENTARY INFORMATION: We are publishing this revised rule by the
authority delegated by the Secretary of the Interior to the Assistant
Secretary-Indian Affairs by 209 DM 8.
Our policy is to give the public an opportunity to participate in
the rule making process by submitting written comments regarding
proposed rules. We will consider all comments received during the
public comment period. We will determine necessary revisions and issue
the final rule. Please refer to this preamble's ``ADDRESSES'' section
for where you must submit your written comments on this proposed rule.
We have determined that these proposed regulations meet the
applicable standards provided in Sections 3(a) and 3(b)(2) of Executive
Order 12988.
This rule is not a significant rule under Executive Order 12866 and
does not require approval by the Office of Management and Budget.
This rule imposes no unfunded mandates on any governmental or
private entity and is in compliance with the provisions of the Unfunded
Mandates Act of 1995.
We determined this proposed rule:
(a) Does not constitute a major Federal action significantly
affecting the human environment, and no detailed statement is needed
under the Environmental Policy Act of 1969;
(b) Does not have significant takings implications in accordance
with Executive Order 12630; and
(c) Does not have significant federalism effects.
Paperwork Reduction Act of 1995
Sections 171.214 and 171.215 contain information collection
requirements. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the Bureau of Indian Affairs has submitted a copy of
these sections to the Office of Management and Budget for its review.
Water users must apply for water delivery. The information to be
collected includes: name; watery deliver location; time and date of
requested water delivery; duration of water delivery; rate of water
flow; number of acres irrigated; crop statistics; and other operational
information identified in the local administration manuals. The Bureau
needs and uses the information to operate and maintain its irrigation
projects and fulfill our reporting requirements.
All information is to be collected annually from each water user.
Annual
[[Page 35168]]
reporting and record keeping burden for this collection of information
is estimated to average 40 minutes for each response for approximately
51,500 respondents, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Thus, the total annual reporting and recordkeeping burden for this
collection is estimated to be 4,292 hours.
Organizations and individuals wishing to submit comments on the
information collection requirement should direct them to the Office of
Information and Regulatory Affairs, OMB, Room 10202, New Executive
Office Building, Washington, D.C. 20503; Attention Desk Officer for
U.S. Department of Interior.
The Bureau of Indian Affairs considers comments by the public on
this proposed collection of information in:
Evaluating whether the proposed collection of information is
necessary for the proper performance of the Bureau, including whether
the information will have practical utility;
Enhancing the quality, usefulness, and clarity of the information
to be collected; and
Minimizing the burden of the collection of information on those who
are to respond, including through the use of appropriate collection
techniques or other form of information technology.
OMB is required to make a decision concerning the collection of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to the OMB is best assured of having its full
effect if OMB receives it within 30 days of publication. This does not
affect the deadline for the public to comment to the Bureau of Indian
Affairs on the proposed rule.
List of Subjects in 25 CFR Part 171
Indians-lands, Irrigation.
For the reasons set out in the preamble we are proposing to revise
Part 171 of Title 25 of the Code of Federal Regulations, as follows:
PART 171--IRRIGATION PROJECTS AND SYSTEMS
Subpart A--General Provisions
Sec.
171.101 Definitions.
171.102 How we will administer irrigation projects.
171.103 How we will establish local administration manuals for each
project.
171.104 What are the responsibilities and authorities of irrigation
districts?
171.105 How can you appeal our decisions?
Subpart B--How We Will Distribute Water
171.201 Water delivery points for farm units.
171.202 What if my farm is too high?
171.203 What must I do if I subdivide a farm unit?
171.204 What must I do if I combine farm units?
171.205 How we will distribute water.
171.206 What restrictions are there on my use of water?
171.207 Will you deliver water to my farm unit if I have not paid
my assessments?
171.208 May I ever receive water if I cannot pay my assessments on
time?
171.209 May I use water for leaching?
171.210 Is there a deadline by which I must use water that you
deliver for leaching?
171.211 May I use water for domestic and stock purposes?
171.212 Will you deliver water over my quota?
171.213 How can I get water delivered to my service or farm ditch?
171.214 How do I apply for water delivery?
171.215 How we record your water delivery.
171.216 What are my responsibilities concerning waste water and
surface drainage?
171.217 When will we establish carriage agreements?
Subpart C--Project Facilities
171.301 Who is responsible for obtaining rights of way?
171.302 Who is responsible for structures on our property or rights
of way?
171.303 May I ever take over a structure that you have built?
171.304 Can you install a fence on our property or rights of way?
171.305 Can you place an obstruction on our property or rights of
way?
Subpart D--Financial Matters and Records
171.401 Definitions for this subpart.
171.402 What costs must I pay?
171.403 How will I know what fees you will charge me?
171.404 How do you compute the costs that you charge me?
171.405 How will I be billed for the water that I use?
171.406 Uniform accounting and billing procedures are required.
171.407 What procedures apply if there are assessment or
construction repayment charges?
171.408 How will you recover late payments?
Subpart E--Miscellaneous
171.501 Information you must provide us.
171.502 Your responsibility concerning refuse.
Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C.
385. Sec. 171.4(b) also issued under 34 Stat. 1024, 38 Stat. 583,
and 68 Stat. 1026. Secs. 171.4(a), 171.4(c), 171.16(b), and
171.17(f) also issued under sec. 11, 39 Stat. 142.
Subpart A--General Provisions
Sec. 171.101 Definitions.
Administration Manual means the written compilation of policies,
procedures, and practices we must use to govern the local day-to-day
administration, operation, maintenance, and rehabilitation of our
individual projects.
Construction assessment means the periodic charge you must pay us
to repay appropriated funds we used to build project facilities that
the United States Congress has determined to be reimbursable to us.
Farm ditch means a ditch or canal located on your farm unit which
you own, operate, maintain, and rehabilitate.
Farm unit means the smallest parcel of land for which we will
establish a delivery point.
Farm unit size will be defined by us for each project in the local
Administration Manual.
Irrigation district means an organization representing water users,
established under proper legal authority to represent all of, or a
portion of, the water users for the purposes of the fair and beneficial
use of irrigation water, and conferring with us on the administration,
operation, maintenance, and rehabilitation of our project serving it.
Operation & Maintenance (O&M) Assessment means the computed per
acre cost you must pay us for administering, operating, maintaining,
and rehabilitating our facilities.
Project means a facility we own, including all appurtenant works,
for the delivery, diversion, and storage of irrigation water,
authorized and established by specific Congressional legislation. For
the purposes of this part, we will reference both projects and systems
using the term ``project.''
Service ditch means a ditch or canal you own, operate, maintain,
and rehabilitate into which we deliver water.
Severance agreement means an agreement between us and a landowner
to provide access, if we, through construction or extension of a
project, cause severance of the owner's property.
System means a facility we own, including all appurtenant works,
for the delivery, diversion, and storage of irrigation water, which we
established under the authority of the Snyder Act (25 U.S.C. 13).
Waste water means the runoff of water we deliver to you.
Water means water we deliver from, or return to, our facilities for
the general purpose of irrigation.
[[Page 35169]]
Water user means any person, business, government, or other entity
we provide water.
Water users' ledger means our record of water user accounts.
We means the United States Government, the Secretary of the
Interior, the Bureau of Indian Affairs, and all who are authorized to
represent us in matters covered under this part.
You means all interested parties receiving beneficial use of our
projects, such as water users and landowners, irrigation districts, or
other entities affected by this part.
Sec. 171.102 How we will administer irrigation projects.
(a) We must enforce the regulations in this part and the provisions
of the local administration manuals to ensure the safe, reliable, and
efficient administration, operation, maintenance, and rehabilitation of
our facilities.
(b) Our enforcement includes refusing water delivery to you.
(c) We must use the construction debt repayment funds we collect
from you to repay the construction debt of the particular project where
we collect the money.
(d) You must agree to a construction debt repayment plan for the
project where you are located if repayment of the appropriated
construction funds is required.
Sec. 171.103 How we will establish local administration manuals for
each project.
(a) We will establish policies, procedures, and practices for the
local administration, operation, maintenance, and rehabilitation of
each project and compile them in a local administration manual.
(b) We must publish a notice in the Federal Register before
establishing, or amending, a project's administration manual.
(c) We must consult with the water users, or their authorized
representatives, and tribal representatives to seek comment on
administration manuals and other matters of irrigation priorities and
policies.
Sec. 171.104 What are the responsibilities and authorities of
irrigation districts?
(a) Water users may form an irrigation district to represent their
interests.
(b) An irrigation district must do the following before we will
deliver water:
(1) Properly execute a construction repayment contract;
(2) Pay all charges in accordance with the construction repayment
contract;
(3) Pay us all past and current construction assessment charges;
and
(4) Pay us all past and current O&M assessment charges.
(c) Irrigation districts may make rules, policies, and procedures
they may find necessary to administer water delivery within their
district.
(d) Irrigation districts cannot make rules, policies, or procedures
that conflict with the regulations in this part, or the local
administration manual.
Sec. 171.105 How can you appeal our decisions?
(a) You may appeal our decisions in accordance with subchapter A,
part 2 of Title 25 or in accordance with the established local
administrative manual, whichever has specific application for what you
are appealing.
(b) Until your appeal is settled, you must:
(1) Conform to our requirements for us to deliver water; and
(2) Pay the charge(s) or rates, if you are appealing assessments,
rates, or fees.
Subpart B--How We Will Distribute Water
Sec. 171.201 Water delivery points for farm units.
(a) We will normally deliver water to your farm unit at a single
point we designate.
(b) We may establish additional delivery point(s) under the
following conditions:
(1) We determine it is impractical for you to irrigate your farm
unit from a single delivery point;
(2) You must bear all costs for establishing additional delivery
point(s); and
(3) We may establish your delivery point(s) at a well head.
Sec. 171.202 What if my farm is too high?
(a) We will not change our water level to deliver water to you.
(b) You may install, operate and maintain equipment, at your
expense, to put our water on your land:
(1) From a point we designate; and
(2) In accordance with specifications we approve.
Sec. 171.203 What must I do if I subdivide a farm unit?
(a) Legally record a plat or map of the subdivision and provide us
a copy; and
(b) Show on the plat or map how water is to be delivered within the
subdivision; and
(c) Assume full responsibility for the facilities within your
subdivision.
Sec. 171.204 What must I do if I combine farm units?
(a) If you combine farm units, or portions of farm units, under a
lease, or ownership, we must modify or remove existing delivery points
to comply with Sec. 171.203 (a) and (b). You must pay us the cost of
modification or removal to meet this requirement. Any modifications
must not disrupt water delivery to other water users.
(b) Should you change your mind about combining farm units after we
have modified or removed our facilities:
(1) We must approve reestablishment of the water delivery points;
(2) Other water users must not have their water delivery service
disrupted to reestablish the water delivery points, and
(3) You must pay us all costs to reestablish the delivery points.
Sec. 171.205 How we will distribute water.
We will follow the distribution procedures in the local
administration manual. We will notify you in writing when your quota of
water for the season has been delivered.
Sec. 171.206 What restrictions are there on my use of water?
(a) You must not interfere with, or alter, water flow, storage, or
delivery without our authorization.
(b) You must not possess or use water in any way without our
permission.
Sec. 171.207 Will you deliver water to my farm unit if I have not paid
my assessments?
No. You must pay all O&M and construction assessments before we
will deliver water to your farm unit. The only limited exceptions to
this rule are contained in Sec. 171.208.
Sec. 171.208 May I ever receive water if I cannot pay my assessments
on time?
We may agree to deliver water to your farm unit if you cannot pay
your assessments on time and if you meet one of the conditions in the
following table.
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We may deliver water to you if: and . . .
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your farm unit is held in trust or is (1) we certify in writing
restricted land. that you are an Indian
owner and are financially
unable to pay on time; (2)
you make arrangements to
pay us eventually; and (3)
you allow us to place a
first lien against your
land until you pay the
assessments.
[[Page 35170]]
your farm unit is leased trust or you make delayed payment
restricted land and the lease was arrangements with us.
negotiated by the Indian owner.
you have asked us for an adjustment or we have not yet acted on
cancellation for the assessment on your your request.
land.
you have an approved deferred payment
contract on your land that was executed
under the Act of June 22, 1936 (49 Stat.
1803).
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Sec. 171.209 May I use water for leaching?
We may deliver water to your farm unit for leaching land that is
impregnated by alkali. We may charge for this water. We will deliver
this water if:
(a) The water is available;
(b) You have a plan of operation that we have approved;
(c) You have made a written agreement with us to correct the alkali
problem; and
(d) You do not owe us any money.
Sec. 171.210 Is there a deadline by which I must use water that you
deliver for leaching?
Yes. You must make full beneficial use of water delivered for
leaching purposes by the date in the administration manual. If you have
not:
(a) We must refuse to deliver water to you for leaching; and
(b) We must charge you for any delivered water.
Sec. 171.211 May I use water for domestic and stock purposes?
We may deliver water for domestic and stock purposes if it will
not:
(a) Interfere with the operation, maintenance, or rehabilitation of
our facilities;
(b) Be detrimental to, or endanger, our facilities;
(c) Adversely affect the stored water supply, and
(d) Incur additional costs to us.
Sec. 171.212 Will you deliver water over my quota?
We may deliver additional water above your quota:
(a) If we determine excess water is available;
(b) You request the water in writing; and
(c) You agree to pay for the water at published rates.
Sec. 171.213 How do I get water delivered to my service or farm ditch?
For us to deliver water to your service or farm ditch you must:
(a) Put the water to beneficial use;
(b) Make sure your ditch has sufficient carrying capacity;
(c) Properly maintain and rehabilitate your ditch; and
(d) Make sure your ditch has minimal losses.
Sec. 171.214 How do I apply for water delivery?
(a) You must request water delivery in accordance with the
administration manual we have established for your project.
(b) Your request must contain at least the following information:
(1) Your name;
(2) Where you want water delivered;
(3) The time and date you want water delivered;
(4) How long you want water delivered;
(5) The rate of water flow you want; and
(6) How many acres you are irrigating.
Sec. 171.215 How we record your water delivery.
(a) We maintain the water delivery records in accordance with the
administration manual.
(b) We will keep at least the following information as part of your
water delivery record:
(1) Your name;
(2) Beginning date and time of your water delivery;
(3) Ending date and time of your water delivery;
(4) Amount of water we delivered to you; and
(5) The actual acreage you irrigated.
Sec. 171.216 What are my responsibilities concerning waste water and
surface drainage?
(a) You are responsible for conveying your irrigation waste water
back to our facilities for drainage.
(b) You are responsible for all costs we might incur in helping you
meet your responsibility as described in paragraph (a) of this section.
(c) You will return waste water to our facilities only at points we
designate, and in a way we approve.
(d) When there are two or more landowners or water users, it is
their responsibility to work out a satisfactory arrangement for
conveying their irrigation waste water to our facilities.
(e) Your waste water must not flow upon, or collect on, our rights
of way or roads, except at points we designate, and in a way we
approve.
Sec. 171.217 When will we establish carriage agreements?
(a) We may enter into an agreement to deliver non-project water to
non-project land if we have determined there is excess capacity in our
facilities to do so.
(b) We may enter into an agreement with a private enterprise or
individual to convey water through other than our own facilities to
isolated project land you are irrigating.
(c) You must pay us all administrative, operating, maintenance, and
rehabilitation costs associated with these agreements before we will
convey the water.
Subpart C--Project Facilities
Sec. 171.301 Who is responsible for obtaining rights of way?
You must obtain rights of way necessary for us to construct or
extend facilities to deliver water to your farm unit, in accordance
with the following:
(a) For rights of way across trust or restricted lands, you must
obtain these rights-of-way in accordance with 25 CFR part 169.
(b) For rights of way across fee patented lands, you must obtain
the right-of-way from the property owner(s).
(c) You must provide the rights of way to us at no cost.
(d) The right of way must be wide enough to permit passage and use
of our equipment for construction, operation, maintenance, and
rehabilitation of our facilities.
Sec. 171.302 Who is responsible for structures, on our property or
rights-of-way?
(a) We must build, operate, maintain, and rehabilitate our own
structures, including bridges and other crossings, unless we authorize
someone else to do it, in writing.
(b) When we are building, or extending our existing facilities, we
may build other structures or facilities for private use when justified
by severance agreements, or other considerations.
(c) We own these structures unless we decide to do otherwise.
(d) If we build and own a structure for your benefit, we may
require you to maintain it. If you do not, and we perform the necessary
maintenance ourselves, you must pay us all costs incurred.
(e) You may build a structure encroaching on our rights of way for
your private use after:
(1) We approve in writing;
(2) We approve the plans for construction; and
(3) You sign a written agreement with us stating you will bear all
costs of installation, maintenance,
[[Page 35171]]
rehabilitation, and possible future removal.
(f) If any structure built under this part is no longer needed, we
may remove it.
Sec. 171.303 May I ever take over a structure that you have built?
(a) If you want to use a structure we plan on removing, you may
request in writing to take ownership of the structure.
(b) We may transfer ownership of a structure to you under an
agreement which:
(1) Relieves us from any future liability or responsibility for the
structure;
(2) Relieves us from any future costs incurred for maintaining the
structure; and
(3) Stipulates all that is granted and accepted by you.
(4) Provides that if you do not regularly use a structure for a
period of one year, or do not properly maintain and rehabilitate the
structure, we will notify you in writing that:
(i) You must either remove it or correct any unsafe condition; and
(ii) If you do not comply with our notice, we may remove the
structure and you must pay us all costs we incur.
Sec. 171.304 Can you install a fence on our property or rights of way?
(a) You must not place a fence across or within our property or
rights of way without our written approval.
(b) We will approve fences on our property or rights of way only if
it:
(1) Is properly installed;
(2) Does not interfere with the flow or delivery of water; and
(3) Does not interfere with the passage of our equipment and
employees.
(c) We must notify you in writing to remove fences we do not
approve.
(d) If you do not remove the fence in accordance with our notice,
we will remove the fence at your expense.
Sec. 171.305 Can you place an obstruction on our property or rights of
way?
No. You must not place obstructions on our property or rights-of-
way. If you do, we will notify you in writing that you must remove it.
If you do not remove the obstruction in accordance with our notice, we
will remove it at your expense.
Subpart D--Financial Matters and Records
Sec. 171.401 Definitions for this subpart.
Administrative costs means all expenses we incur to administer our
project at the local level. This does not include the agency, area, or
central office expenses.
Assessment rate means the published charge you must pay for us to
deliver water to your farm unit.
Costs means the expenses we incur to provide direct support or
benefit to your project's activities for administration, operation,
maintenance, and rehabilitation. Depending on the activity, we must
include at least:
(1) Salary and benefits for the project engineer/manager and our
employees under his or her control;
(2) Materials and supplies;
(3) Major and minor vehicle and equipment repairs;
(4) Equipment, including transportation, fuel, oil, grease, lease
and replacement;
(5) Capitalization expenses;
(6) Acquisition expenses; and
(7) Other expenses we determine necessary to properly perform the
activities and functions necessary for an irrigation project.
Maintenance costs means all expenses we incur to maintain and
repair our facilities and equipment of our project.
Operation costs means all expenses we incur to operate the
facilities and equipment of our project.
Rehabilitation costs means all expenses we incur to maintain our
project facilities to original design specifications.
Total assessable acres means the total authorized acres within a
project to which we can deliver water.
Total cost means the total of all administrative, operating,
maintenance, and rehabilitation costs we incur to deliver water at the
particular project you are located. These costs do not generally
include costs above the project engineer/manager.
Total cost per acre means the computed cost we incur on a per acre
basis by dividing the total cost by the total assessable acres, as
follows:
Total Costs per Acre equals Total Cost divided by Total
Assessable Acres.
Sec. 171.402 What costs must I pay?
You must pay us for the total costs we incur for operating and
maintaining the project where you are located. You must pay your
assessment, in accordance with the local administration manual, before
we will deliver water to your farm unit.
Sec. 171.403 How will I know what fees you will charge me?
(a) We will establish, and adjust as necessary, rates, charges, and
fees for recovering our total cost.
(b) When we establish or adjust the fees for your project, we will
notify you by publishing a notice in the Federal Register. We will
review our costs for your project each year, and adjust the rates,
charges, and fees when necessary to comply with Sec. 171.402.
(c) We must use the assessed money we collect from you to support
the administration, operation, maintenance, and rehabilitation
activities of the project where you are located.
Sec. 171.404 How do you compute the costs that you charge me?
We will base our assessments for your farm unit on the computed
total cost per acre times the total number of assessable acres in your
farm unit. If you subdivide your farm unit into smaller farming
acreages we may set a higher assessment rate for your subdivided
acreage. If we do this, we will notify you by publishing a notice in
the Federal Register.
Sec. 171.405 How will I be billed for the water that I use?
(a) We will maintain water users' ledgers in accordance with the
administration manual on all projects where we levy and collect
assessment and construction repayment charges.
(1) We will make separate entries in the ledger for each water
user, and issue bills to the water users of record.
(2) When we receive payment, we will credit it to the proper ledger
account.
(3) If water is used for leased trust or restricted land, we will
bill the lessee.
(b) Where irrigation districts have been established and have
executed a construction repayment contract, the district will bill you
and will follow the procedures in paragraph (a) of this section.
Sec. 171.406 Uniform accounting and billing procedures are required.
All projects under the jurisdiction of the Bureau must follow the
accounting and billing procedures that we establish.
Sec. 171.407 What procedures apply if there are assessment or
construction repayment charges?
Where payment of assessment or construction repayment charges is
required, refer to 4 CFR Parts 102, 103, 104, 105, and 25 CFR Part 115,
in addition to this part.
Sec. 171.408 How will we recover late payments?
(a) We will file liens in accordance with the administration
manual, against fee patent or trust lands within a project to recover
delinquent payments.
(b) Federal, State, and tribal government agencies are exempt from
interest, penalty, and administrative charges for delinquent payments.
(c) We will file and execute liens against Individual Indian Moneys
(IIM) in accordance with 25 CFR 115.10.
[[Page 35172]]
Subpart E--Miscellaneous
Sec. 171.501 Information you must provide us.
(a) You must provide us with the information we request to assist
in the proper administration, operation, maintenance, and
rehabilitation of our facilities.
(b) We will request all information in accordance with the local
administration manual.
Sec. 171.502 Your responsibility concerning refuse.
You must not use our property or rights of way to dispose of
sewage, trash, or other refuse.
Dated: May 24, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-16184 Filed 7-3-96; 8:45 am]
BILLING CODE 4310-02-P