[Federal Register Volume 66, Number 12 (Thursday, January 18, 2001)]
[Notices]
[Pages 4856-4858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1531]


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DEPARTMENT OF THE INTERIOR

Bureau of Reclamation


Definition and Payback of Inadvertent Overruns for Delivery of 
Lower Colorado River Water; Notice of Public Comment Period

AGENCY: Bureau of Reclamation, Interior.

ACTION: Notice of public comment period.

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SUMMARY: The Bureau of Reclamation (Reclamation) proposes a policy that 
will identify inadvertent overruns, will establish procedures that 
account for inadvertent overruns, and will define subsequent payback 
requirements to the Colorado River mainstream, and invites comments on 
its draft proposal.

DATES: Comments on this notice must be received at the address below on 
or before March 24, 2001.

ADDRESSES: If you wish to comment, you may mail comments to Deputy Area 
Manager, Boulder Canyon Operations Office, Lower Colorado Region, 
Bureau of Reclamation, BCOO-1010, P.O. Box 61470, Boulder City, Nevada 
89006. You may also comment via the Internet at 
[email protected]. If you comment via the Internet, please 
submit comments as an ASCII file avoiding the use of special characters 
and any form of encryption. If you do not receive a confirmation via e-
mail that we have received your Internet message, please contact us 
directly at (702) 293-8592.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review. Individual 
respondents may request that we withhold their home address from public 
disclosure, which we will honor to the extent allowable by law. There 
also may be circumstances in which we would withhold a respondent's 
identity from public disclosure, as allowable by law. If you wish us to 
withhold your name and/or address, you must state this prominently at 
the beginning of your comment. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public disclosure in their entirety.

FOR FURTHER INFORMATION CONTACT: Mr. John Redlinger, (702) 293-8592.

SUPPLEMENTARY INFORMATION: In its June 3, 1963 opinion in the case of 
Arizona v. California (373 U.S. 546), the Supreme Court of the United 
States held that the Congress has directed the Secretary of the 
Interior (Secretary) to administer a network of useful projects 
constructed by the Federal Government on the lower Colorado River, and 
it has entrusted the Secretary with sufficient power to direct, manage, 
and coordinate their operation. The Court held that this power must be 
construed to permit the Secretary to allocate and distribute the waters 
of the mainstream of the Colorado River within the boundaries set down 
by the Boulder Canyon Project Act (45 Stat. 1057, 43 U.S.C. 617) 
(BCPA). The Secretary has entered into contracts for the delivery of 
Colorado River water with entities in Arizona, California, and Nevada 
in accordance with section 5 of the BCPA. The

[[Page 4857]]

Secretary has the responsibility of operating Federal facilities on the 
Colorado River and delivering mainstream Colorado River water to users 
in Arizona, California, and Nevada that hold entitlements, including 
present perfected rights, to such water.
    Article V of the Decree of the Supreme Court of the United States 
in Arizona v. California dated March 9, 1964 (376 U.S. 340) requires 
the Secretary to compile and maintain records of diversions of water 
from the mainstream, of return flow of such water to the mainstream as 
is available for consumptive use in the United States or in 
satisfaction of the Mexican Treaty obligation, and of consumptive use 
of such water. Reclamation reports this data each year in the Decree 
Accounting Record.
    Pursuant to the Criteria for Coordinated Long-Range Operation of 
Colorado River Reservoirs developed as a result of the Colorado River 
Basin Project Act of September 30, 1968, the Secretary annually 
consults with representatives of the governors of the Colorado River 
Basin States, general public and others and issues an Annual Operating 
Plan (AOP) for the coordinated operation of the Colorado River 
reservoirs. Reclamation also requires each Colorado River water user in 
the Lower Basin to schedule water deliveries in advance for the 
following calendar year (calendar year is the annual basis for decree 
accounting of consumptive use in the lower Colorado basin) and to later 
report its actual water diversions and returns to the mainstream.
    Pursuant to 43 CFR part 417, prior to the beginning of each 
calendar year, Reclamation consults with entities holding BCPA section 
5 contracts (Contractor) for the delivery of water. Under these 
consultations, Reclamation makes recommendations relating to water 
conservation measures and operating practices in the diversion, 
delivery, distribution, and use of Colorado River water. Reclamation 
also makes a determination of the Contractor's estimated water 
requirements for the ensuing calendar year to the end that deliveries 
of Colorado River water to each Contractor will not exceed those 
reasonably required for beneficial use under the respective BCPA 
contract or other authorization for use of Colorado River water. 
Reclamation then monitors the actual water orders, receives reports of 
measured diversions and return flows from major Contractors and federal 
establishments, estimates unmeasured diversions and return flows, 
calculates consumptive use from preliminary diversions and measured and 
unmeasured return flows, and reports these records on an individual and 
aggregate monthly basis. Later, when final records are available, 
Reclamation prepares and publishes the final Decree Accounting Record 
on a calendar year basis.
    For various reasons, a user may inadvertently consumptively use 
Colorado River water in an amount that exceeds the amount available 
under its entitlement (inadvertent overrun). Further, the final Decree 
Accounting Record may show that an entitlement holder inadvertently 
diverted water in excess of the quantity of the entitlement that may 
not have been evident from the preliminary records. Reclamation is 
therefore considering an administrative policy that defines inadvertent 
overruns, establishes procedures that account for the inadvertent 
overruns and defines the subsequent requirements for pay back to the 
Colorado River mainstream.
    Any effects of the proposed administrative policy decision on the 
environment will be addressed pursuant to the National Environmental 
Policy Act.

Inadvertent Overruns

    Reclamation is proposing for the Lower Colorado River Basin an 
inadvertent overrun policy that would include the following features:
    a. Inadvertent overruns are those which the Secretary deems to be 
beyond the control of the water user; for example, overruns due to the 
discrepancy between preliminary and final stream flow and diversion 
records, or overruns due to an unanticipated but lawful use by a 
higher-priority water user.
    b. An inadvertent overrun is Colorado River water diverted, pumped 
or received by an entitlement holder in excess of the water user's 
entitlement for that year. The inadvertent overrun policy provides a 
structure to pay back the amount of water diverted, pumped or received 
in excess of entitlement. The inadvertent overrun policy does not 
create any right or entitlement to this water, nor does it expand the 
underlying entitlement in any way. An entitlement holder has no right 
to order, divert, pump or receive an inadvertent overrun. If, however, 
water is diverted, pumped or received inadvertently in excess of 
entitlement, and the Contractor's State's apportionment of Colorado 
River water for that year is exceeded, the inadvertent overrun policy 
will govern the payback.
    c. Payback will be required to commence in the calendar year that 
immediately follows the release date of a Decree Accounting Record that 
reports uses that are in excess of an individual's entitlement.
    d. Payback must be made only from measures that are above and 
beyond the normal consumptive use of water (extraordinary conservation 
measures). Extraordinary conservation measures mean actions taken to 
conserve water that otherwise would not return to the mainstream of the 
Colorado River and be available for beneficial consumptive use in the 
United States or to satisfy the Mexican treaty obligation. Any 
entitlement holder with a payback obligation must submit to 
Reclamation, along with its water order, a plan which will show how it 
will intentionally forbear use of Colorado River water by extraordinary 
conservation and/or fallowing measures sufficient to meet its payback 
obligation, which are in addition to the measures found in its 
Reclamation approved conservation plan. Plans for payback could also 
include supplementing Colorado River system water supplies with non-
system water supplies. Water banked off-stream or groundwater from 
areas not hydrologically connected to the Colorado River or its 
tributaries are examples of such supplemental supplies.
    e. Maximum cumulative inadvertent overrun accounts will be 
specified for individual entitlement holders as 10 percent of an 
entitlement holder's normal year consumptive use entitlement. (Normal 
year means a year for which the Secretary has determined that 
sufficient mainstream Colorado River water is available for release to 
satisfy 7.5 maf of annual consumptive use in the States of California, 
Arizona and Nevada.)
    f. The number of years within which an overrun, calculated from 
consumptive uses reported in final Decree Accounting Records, must be 
paid back, and the minimum payback required for each year shall be as 
follows:
    1. In a year in which the Secretary makes a flood control release 
or a space building release, any accumulated amount in the overrun 
account will be forgiven.
    2. If the Secretary has declared a 70 R surplus in the AOP, any 
payback obligation will be deferred at the entitlement holder's option.
    3. When Lake Mead elevation is between the elevation for a 70R 
surplus declaration and elevation 1125 feet above mean sea level on 
January 1, the payback obligation must be paid back in full within 3 
years, with a minimum payback that year of the greater of 20

[[Page 4858]]

percent of the individual entitlement holder's maximum allowable 
cumulative overrun account amount or 33.3 percent of the total account 
balance.
    4. When Lake Mead elevation is at or below elevation 1,125 feet 
above mean sea level on January 1, the total account balance will be 
paid back in full in that calender year.
    5. For any year in which the Secretary declares a shortage under 
the Decree, the total account will be paid back in full that calender 
year, and further accumulation of inadvertent overruns will be 
suspended as long as shortage conditions prevail.
    g. A separate inadvertent overrun account may be established in 
those limited cases in which a lower priority user is, or has agreed to 
be, responsible for consumptive uses by one or more un-quantified 
senior water entitlement or right holders having finite service area 
acreage. The separate inadvertent overrun account will be limited to a 
maximum cumulative amount of 10 percent of the senior right holders 
average consumptive use. Such inadvertent overrun accounts will be the 
assigned responsibility of the lower priority user. If, however, such 
senior entitlement or right holders' approved aggregate calendar year 
water orders are in excess of the specified amount above which the 
lower priority user will be responsible, such excess will not be deemed 
inadvertent and the lower priority user's water order for that year 
will be reduced accordingly by Reclamation.
    h. Each month, Reclamation will monitor the actual water orders, 
receive reports of measured diversions and return flows from 
Contractors and federal establishments, estimate unmeasured diversions 
and return flows, and project individual and aggregate consumptive uses 
for the year. Should preliminary determinations indicate that monthly 
consumptive uses by individual users, or aggregate uses, when added to 
the approved schedule of uses for the remainder of that year, exceed 
contract entitlements but are not exceeding the maximum inadvertent 
overrun account amount, Reclamation will notify in writing the 
appropriate entities that the preliminary determinations are 
forecasting annual uses in excess of their entitlements.
    i. During years in which an entitlement holder is forbearing use to 
meet its payback obligation, should preliminary determinations of 
monthly consumptive uses indicate that sufficient forbearance is not 
projected to occur, Reclamation will also notify the appropriate 
entitlement holders in writing that the preliminary determinations are 
forecasting that their annual payback obligations are not on target or 
being met. If this condition occurs for two consecutive years, in the 
second year Reclamation will advise the entitlement holder in writing 
by July 31, will consult with the entitlement holder on a modified 
release schedule and will limit releases to the entitlement holder for 
the remainder of the year such that by the end of the year the 
individual entitlement holder has met their payback obligation.
    j. Should preliminary determinations indicate that monthly 
consumptive uses by individual users, or aggregate uses, when added to 
the approved schedule of uses for the remainder of that year, exceed 
the individual entitlement holder's maximum cumulative overrun account 
amount, Reclamation will advise the entitlement holder in writing by 
July 31, will consult with the entitlement holder on a modified release 
schedule and will limit releases to the entitlement holder for the 
remainder of the year such that by the end of the year the individual 
entitlement holder's maximum cumulative overrun account amount has not 
been exceeded.
    k. Procedures will be established for accounting for inadvertent 
overruns on an annual basis and for supplementing the final Decree 
Accounting Record.
    Reclamation invites comments on the features noted above and in 
particular on: what limits might be placed on any maximum cumulative 
overrun account; the duration of the payback period; and from what 
types of water would payback be allowed.

Public Meetings

    Reclamation will hold public meetings to present information and 
solicit public input if there is a sufficient level of interest. Submit 
any request for a public meeting to Mr. John Redlinger (see ADDRESSES).

    Dated: January 12, 2001.
Robert W. Johnson,
Regional Director, Lower Colorado Regional Office.
[FR Doc. 01-1531 Filed 1-17-01; 8:45 am]
BILLING CODE 4310-MN-P