[Federal Register Volume 67, Number 118 (Wednesday, June 19, 2002)]
[Notices]
[Pages 41733-41735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15470]


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DEPARTMENT OF THE INTERIOR

Bureau of Reclamation


Colorado River Interim Surplus Guidelines, Notice Regarding 
Implementation of Guidelines

AGENCY: Bureau of Reclamation, Interior.

ACTION: Notice and correction.

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SUMMARY: The Colorado River Interim Surplus Guidelines (Guidelines) 
were adopted as a result of a Record of Decision signed by the 
Secretary of the Interior (Secretary) and published in the Federal 
Register on January 25, 2001 (66 FR 7772-7782). The Department of the 
Interior (Department) has received a number of informal comments and 
has identified issues regarding implementation of the Guidelines. This 
notice identifies and addresses these issues in order to facilitate a 
common understanding regarding the implementation of the Guidelines for 
calendar year 2003. This notice also corrects a typographical/
computational error in the Guidelines as published in the Federal 
Register on January 25, 2001.

DATES: The Secretary is not proposing to take any specific action as a 
result of this Federal Register notice. Accordingly, the Department is 
not establishing a specific date by which comments must be submitted. 
The Secretary will also accept input on the issues addressed by this 
Federal Register notice through the process under which the Annual 
Operating Plan for the Colorado River System Reservoirs (AOP) is 
developed. This process includes consultation with the Colorado River 
Management Work Group, a group that the Secretary consults with in 
order to carry out the provisions of section 602(b) of the Colorado 
River Basin Project Act of 1968 and section 1804(c)(3) of the Grand 
Canyon Protection Act of 1992.

ADDRESSES: You may submit written comments to the Regional Director, 
Lower Colorado Region, Attention: Jayne Harkins, Bureau of Reclamation, 
P.O. Box 61470, Boulder City, Nevada 89006-1470.

SUPPLEMENTARY INFORMATION: The Secretary, pursuant to applicable law 
including particularly the Boulder Canyon Project Act of December 28, 
1928 (BCPA), and the Supreme Court opinion rendered June 3, 1963, and 
decree entered March 9, 1964 (Decree) in the case of Arizona v. 
California, et al., is vested with the responsibility to manage the 
mainstream waters of the Colorado River in the Lower Basin. In 
furtherance of this responsibility, the Department, through a notice 
published in the Federal Register on May 18, 1999 (64 FR 27008-09), 
initiated a process to develop specific criteria to identify those 
circumstances under which the Secretary would make Colorado River water 
available for delivery to the States of Arizona, California, and Nevada 
(Lower Division States or Lower Basin) in excess of the 7,500,000 acre-
foot Lower Basin basic apportionment. The Department noted in that 
notice that ``[i]n recent years, demand for Colorado River water in 
Arizona, California, and Nevada has exceeded the Lower Basin's 
7,500,000 basic apportionment. As a result, criteria for determining 
the availability of surplus [water] has become a matter of increased 
importance.'' (64 FR 27009). In particular, California has been using 
water in excess of its 4.4 million acre-foot mainstream basic 
apportionment established in the BCPA for decades.
    The Department, through a notice published in the Federal Register 
on January 25, 2001 (66 FR 7772-7782) notified the public that the 
Secretary signed a Record of Decision (ROD), regarding the preferred 
alternative for Colorado River Interim Surplus Guidelines on January 
16, 2001. The Guidelines ``implement Article III(3)(B) of the [Long 
Range Operating Criteria]'' adopted pursuant to the Colorado River 
Basin Project Act of 1968 (as published in the Federal Register on June 
10, 1970). (65 FR 78511).
    Pursuant to section 3 of the Guidelines, the Secretary utilizes the 
``Guidelines to make determinations regarding Normal and Surplus 
conditions for the operation of Lake Mead * * * '' during ``development 
of the Annual Operating Plan for the Colorado River System Reservoirs 
(AOP).'' (66 FR 7781). The Secretary applied these Guidelines for the 
first time during the development of the 2002 AOP, signed by the 
Secretary on January 14, 2002.
    In the period since adoption of the 2002 AOP, increasing attention 
has been focused on the provisions of the Guidelines and their 
application to AOP determinations that are upcoming for 2003. In 
particular, numerous entities have contacted the Department to discuss 
their views and concerns regarding the provisions of Section 5 of the 
Guidelines, entitled ``California's Colorado River Water Use Plan 
Implementation Progress.'' (66 FR 7782).
    This provision of the Guidelines was included in order to assist 
the Secretary in the execution of the Secretary's watermaster duties on 
the lower Colorado River, which include facilitating adherence to the 
Lower Basin's allocation regime. The relationship between efforts to 
reduce California's reliance on surplus deliveries and the adoption of 
specific criteria to guide surplus determinations was established in 
the initial Federal Register notice announcing the potential 
development of surplus guidelines: ``Reclamation recognizes that 
efforts are currently underway to reduce California's reliance on 
surplus deliveries. Reclamation will take account of progress in that 
effort, or lack thereof, in the decision-making process regarding 
specific surplus criteria.'' (64 FR 27009). This concept was embodied 
in the purpose of and need for the Federal action as analyzed in 
Reclamation's Environmental Impact Statement regarding adoption of the 
Guidelines: ``Adoption of the [Guidelines] is intended to recognize 
California's plan to reduce reliance on surplus deliveries, to assist 
California in moving toward its allocated share of Colorado River 
water, and to avoid hindering such efforts. Implementation of [the 
Guidelines] would take into account progress, or lack thereof, in 
California's efforts to achieve these objectives.'' Final Environmental 
Impact Statement at 1-3 to 1-4.
    Sections 5(B) and 5(C) of the Guidelines established independent 
conditions for performance of certain actions by entities in 
California, and the

[[Page 41734]]

implications for surplus determinations in the event that the 
conditions for performance are not met.
    Section 5(B) of the Guidelines specifically addresses California's 
Quantification Settlement Agreement (QSA), a proposed agreement among 
the Imperial Irrigation District, the Coachella Valley Water District, 
the San Diego County Water Authority and The Metropolitan Water 
District of Southern California. The QSA is a critical agreement among 
the California parties to reduce California's reliance on surplus water 
from the Colorado River. The QSA addresses the use and transfer of 
Colorado River water for a period of up to seventy-five years.
    With respect to execution of the QSA, section 5(B) of the 
Guidelines states: ``It is expected that the California Colorado River 
contractors will execute the Quantification Settlement Agreement (and 
its related documents) * * * by December 31, 2001.'' (66 FR 7782). The 
parties were unable to execute the QSA by this date, and over the past 
year, there has been increasing concern regarding the ability of the 
California Colorado River contractors to execute the QSA by the end of 
this year. Failure to execute the QSA by the end of 2002 is 
specifically addressed by section 5(B) of the Guidelines: ``In the 
event that the California contractors and the Secretary have not 
executed [the Quantification Settlement Agreement (and its related 
documents)] by December 31, 2002, the interim surplus determinations 
under Sections 2(B)(1) and 2(B)(2) of these Guidelines will be 
suspended and will instead be based upon the 70R Strategy, for either 
the remainder of the period identified in Section 4(A) or until such 
time as California completes all required actions and complies with 
reductions in water use reflected in Section 5(C) of these Guidelines, 
whichever occurs first.'' (66 FR 7782).
    In light of the concern regarding the ability of the California 
Colorado River contractors to execute the QSA by the end of 2002, 
increasing attention has focused on the specific requirements of this 
section of the Guidelines. Some informal commentors have suggested that 
failure to execute the QSA would have no consequence for surplus 
determinations for 2003 under the Guidelines. Other commentors have 
observed that the Guidelines would be terminated if the QSA and its 
related documents were not executed by December 31, 2002. Such 
suggestions are inconsistent with the plain language of the Guidelines 
as adopted.
    The Department observes that the Guidelines specifically provide 
that ``In the event that the California contractors and the Secretary 
have not executed such agreements by December 31, 2002, the interim 
surplus determinations under sections 2(B)(1) and 2(B)(2) of these 
Guidelines will be suspended and will instead be based upon the 70R 
Strategy * * * '' (66 FR 7782) (emphasis added). Therefore, in the 
event that the QSA and its related documents are not executed by 
December 31, 2002, as provided above, the ``determinations under 
sections 2(B)(1) and 2(B)(2) of these Guidelines will be suspended.'' 
(66 FR 7782). This suspension, under section 5(B) of the Guidelines 
does not suspend or terminate the Guidelines as a whole; rather, in the 
event of a suspension, surplus determinations are limited to sections 
2(A)(1), 2(B)(3) and 2(B)(4).
    Nothing in this notice is intended to address or limit the 
appropriate circumstances for reinstatement of sections 2(B)(1) and 
2(B)(2) as the bases for annual surplus determinations. Reinstatement 
of these sections of the Guidelines will be made in accordance with the 
provisions of section 5(B), which provides that in the event of a 
suspension, the 70R Strategy will be the basis for surplus 
determinations ``for either the remainder of the period identified in 
Section 4(A) [i.e., until December 31, 2015] or until California 
completes all required actions and complies with reductions in water 
use reflected in section 5(C) of the[] Guidelines, whichever occurs 
first.'' (66 FR 7782) (emphasis added).
    Section 5(C) addresses the other conditions for performance of 
certain actions by entities in California, i.e., the specific Benchmark 
Quantities that California agricultural ``use would need to be at or 
below'' at the end of the specified calendar years. The Benchmark dates 
are established in three year intervals beginning in 2003.
    As with the requirements in section 5(B), section 5(C) also 
establishes the implications for surplus determinations in the event 
that the Benchmark quantity conditions for performance are not met.
    One of the benefits of adoption of the Guidelines was to provide 
``more predictability to States and water users'' with respect to ``the 
Secretary's annual decision regarding the quantity of water available 
for delivery to the Lower Basin States.'' (64 FR 27009).
    In light of the above identified concern with respect to the 
likelihood regarding execution of the QSA by the date established in 
section 5(B) of the Guidelines, one of the issues that the Secretary 
will be analyzing in the period between this notice and January 1, 2003 
(the statutory date for transmittal of the 2003 AOP, pursuant to 43 
U.S.C. Sec. 1552(b)), will be the impact on Lower Basin users, 
particularly in Nevada, in the event that the Guidelines are suspended 
pursuant to the provisions of section 5(B).
    The relevant considerations with respect to this issue include the 
following: (1) The ability of lower basin entities outside of 
California, to affect compliance with the section 5(B) requirements, 
(2) the need of other lower basin entities outside of California, to 
utilize surplus quantities in 2003 (and the relative amounts of such 
surplus quantities), (3) impacts on storage of water in the Colorado 
River reservoirs, and the impact on future deliveries to users of the 
waters of the Colorado River under applicable provisions of federal law 
and international treaty, (4) impacts on California's ability to meet 
applicable conditions for reinstatement of the determinations under 
sections 2(B)(1) and 2(B)(2).
    The Department corrects a typographical/computational error in the 
Guidelines as published in the Federal Register on January 25, 2001. 
Specifically, the correction would replace the value of 100,000 acre-
feet that appears in section 2(B)(1)(a) with the value of 120,000 acre-
feet.
    The basis for this correction is as follows. The Federal Register 
notice published on January 25, 2001 states that the decision made by 
the Secretary is ``adoption of specific interim surplus guidelines 
identified in the Preferred Alternative (Basin States Alternative) as 
analyzed in the FEIS.'' (66 FR 7773). Reclamation had earlier published 
information that Reclamation had received from the Colorado River Basin 
states of Arizona, California, Colorado, Nevada, New Mexico, Utah, and 
Wyoming during the public comment period'' on the proposed adoption of 
the Guidelines. (65 FR 48531-48538). Reclamation crafted an alternative 
based on this information, which was ultimately identified as the 
preferred alternative.
    As submitted to the Department, and published in the Federal 
Register, the information from the basin states provided in section 
IV(B)(1)(a) with respect to Direct Delivery Domestic Use by MWD, that 
offsets ``shall not be less than 400,000 af in 2001 and will be reduced 
by 20,000 af/yr over the Interim Period so as to equal 100,000 af in 
2016.'' (65 FR 48536). When the ROD was prepared, the Department 
modified this provision of the proposed alternative to take into 
account that the Guidelines would not be in effect for 2001 AOP 
determinations, and would

[[Page 41735]]

first be applied for 2002 determinations. Accordingly, the year was 
modified in this provision from 2001 to 2002. (66 FR 7780). However, 
when this change was incorporated into the ROD, the Department did not 
modify the corresponding value for the end date (i.e., in year 2016). 
The computation of a reduction of 20,000 af/year during the interim 
period yields a final value of 120,000 rather than the published value 
of 100,000.

    Dated: June 13, 2002.
Bennett W. Raley,
Assistant Secretary--Water and Science.
[FR Doc. 02-15470 Filed 6-18-02; 8:45 am]
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