[Federal Register Volume 71, Number 160 (Friday, August 18, 2006)]
[Proposed Rules]
[Pages 47763-47764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-13687]


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DEPARTMENT OF THE INTERIOR

Bureau of Reclamation

43 CFR Part 415

RIN 1006-AA50


Regulating Non-Contract Use of Colorado River Water in the Lower 
Basin

AGENCY: Bureau of Reclamation, Interior.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Bureau of Reclamation (Reclamation) is providing advance 
notice and is seeking public input on its plans to develop a rule to 
address and reduce the use of Colorado River water in the lower 
Colorado River basin (Lower Basin) without a contract (Non-Contract 
Use). Reclamation believes that development of such a rule would help 
prevent Non-Contract Use from depleting the Colorado River and taking 
water from holders of Colorado River water entitlements. Reclamation 
intends that any rule would establish the procedure that Reclamation 
would follow in making determinations of potential Non-Contract Use 
including notice and administrative appeal procedures for those 
entities whose use of Colorado River water falls within the category of 
Non-Contract use.

DATES: Submit comments regarding whether a rule is needed and, what 
should be in any rule that is developed, to Reclamation at the address 
below on or before October 17, 2006.

ADDRESSES: You may submit comments identified by the number 1006-AA50, 
by any of the following methods:

--Federal rulemaking portal http://www.regulations.gov. Follow the 
instructions for submitting comments.
--E-mail: [email protected].
--Fax: (702) 293-8042, attention: Ms. Margot Selig.
--Mail: Regional Director, Lower Colorado Region, Attention: Ms. Margot 
Selig, Bureau of Reclamation, P.O. Box 61470, Boulder City, NV 89006.

FOR FURTHER INFORMATION CONTACT: Ms. Margot Selig, telephone (702) 293-
8192, or e-mail at [email protected].

SUPPLEMENTARY INFORMATION: This section provides the public with 
information as to why Reclamation currently believes development of a 
Non-Contract use rule is appropriate at this time.
    Legal System For Use of Colorado River Water in the Lower Basin: 
The Colorado River is a primary source of water for irrigation, 
municipal, and industrial uses in the Lower Basin within Arizona, 
California, and Nevada (the Lower Division States). Colorado River 
water is stored behind Hoover Dam, authorized by the Boulder Canyon 
Project Act of 1928 (BCPA), for delivery and beneficial use in the 
United States. In addition, water stored by Hoover Dam is released 
pursuant to the United States' 1944 Treaty with Mexico addressing use 
of the Colorado, Rio Grande, and Tijuana Rivers.
    The BCPA requires any person in the United States using this water 
to have a contract for such water with the Secretary of the Interior 
(Secretary). The Regional Director of Reclamation's Lower Colorado 
Region (Regional Director) enters into water delivery contracts with 
water users in Arizona, California, and Nevada on behalf of the 
Secretary. A valid water delivery contract constitutes an authorization 
by the Secretary, or an entitlement, to divert and consume Colorado 
River water in the Lower Basin. In addition to water delivery 
contracts, other entitlements to use Colorado River water are based on 
a United States Supreme Court Decree in Arizona v. California (Supreme 
Court Decree) or federal reservations of water. An entitlement to use 
Colorado River water (Entitlement) specifies how much water may be 
used, the purpose for which the water may be used, and where the use 
may occur. Reclamation considers any diversion or consumptive use of 
Colorado River water without a contract or other form of Entitlement to 
be a Non-Contract Use.
    The Supreme Court Decree requires Reclamation to account for all 
mainstem Colorado River water use in the Lower Basin. Pursuant to this 
requirement, Reclamation prepares and maintains complete, detailed, and 
accurate records of all known diversions, return flow, and consumptive 
use of Colorado River water in the Lower Basin on an annual basis. 
These accounting records include all diversions and use of Colorado 
River water in Arizona, California, and Nevada, whether or not 
currently authorized by a water delivery contract or other form of 
Entitlement. All reported Colorado River water use in a state--whether 
authorized by an entitlement or not--is required by the Supreme Court 
Decree to be accounted for against the amount of Colorado River water 
available in that state during that year.
    Technical Issues Anticipated To Be Addressed by Rule: As part of 
the anticipated rule, Reclamation anticipates identifying technical 
considerations that Reclamation would use to determine if a particular 
entity is using Colorado River water. Reclamation's current assessment 
of the situation on the Colorado River is that most Non-Contract Use 
consists of water withdrawn from wells located within the 
hydraulically-connected aquifer of the Colorado River (River Aquifer) 
or from river pumps. The Supreme Court Decree specified that the 
consumptive use of Colorado River water in the Lower Basin includes 
water drawn from the mainstream by underground pumping.
    At Reclamation's request the United States Geological Survey (USGS) 
has developed a technical method to identify wells that pump water that 
is replaced by Colorado River water. The method is based on the 
existence of a River Aquifer and an accounting surface within the River 
Aquifer. The accounting surface extends outward from the exterior 
boundary of the Colorado River floodplain until encountering a geologic 
barrier to groundwater flow. Several thousand wells are located within 
the River Aquifer. The USGS is performing a well inventory within the 
boundary of the River Aquifer to identify wells and river pumps that 
can potentially divert water that would be replaced by Colorado River 
water. As part of the anticipated rule, Reclamation would utilize this 
accounting surface to define the area within which Reclamation would 
apply the USGS method to determine whether water withdrawn from a well 
is replaced with Colorado River water. Reclamation would also evaluate 
whether unique hydrologic circumstances in some areas along the 
Colorado River would merit an exception to the USGS methodology.
    Need for Rule To Regulate Non-Contract Use of Colorado River Water 
in the Lower Basin: Reclamation's goal in its management of the lower 
Colorado River is to ensure that all Colorado River water use is 
covered by an Entitlement and correctly accounted for within each Lower 
Division State's apportionment. Because each Lower Division State's 
apportionment of Colorado River water is a limited amount, Non-Contract 
Use harms that state's Entitlement holders by taking water the 
Entitlement holders otherwise could legally use. This fact leads 
Reclamation to conclude that the proposed rulemaking is necessary and 
appropriate. Reclamation believes that development of the proposed rule 
is

[[Page 47764]]

necessary for a number of reasons, including particularly (1) the fact 
that each Lower Division State is fully utilizing its respective 
apportionment and (2) the recent prolonged period of drought in the 
Colorado River Basin which has reduced water saved in the Colorado 
River reservoirs in recent years.
    Reclamation anticipates that the rule would also address several 
other situations where Colorado River water use is not in accordance 
with an Entitlement, such as using more Colorado River water than is 
allowed by an Entitlement, using Colorado River water for a purpose the 
contract does not authorize, or using Colorado River water outside an 
approved service area for the Entitlement. Reclamation has authority to 
enforce its written contracts to prevent water use (i) in excess of an 
Entitlement, (ii) for a purpose not approved by the Entitlement, or 
(iii) outside the approved service area for the Entitlement. 
Reclamation anticipates proposing methods to modify the Entitlements to 
allow the current uses to continue with the approval of Reclamation or 
cease the use.
    Reclamation's Current Assessment of Content of Proposed Rule: 
Reclamation believes that the proposed rule is needed to provide a 
framework for identifying and controlling Non-Contract Use. Pending 
review of public comments, Reclamation expects the proposed rule to:
    1. Establish the methodology developed by the USGS as the tool that 
Reclamation will use to determine if a well pumps water that is 
replaced with Colorado River water;
    2. Establish the criteria a water user must satisfy to demonstrate 
that his or her well does not pump water that is replaced with Colorado 
River water; and
    3. Establish a process for a water user to appeal a finding that a 
well pumps water that would be replaced by Colorado River water.
    The proposed rule is also anticipated to address Colorado River 
water use that is not in accordance with an Entitlement. Pending review 
of public comments, Reclamation expects the proposed rule to:
    1. Document the process Reclamation will use to notify a water user 
if Reclamation makes an initial determination that the water user is 
using Colorado River water in a way that is not in accordance with an 
Entitlement.
    2. Document the process a water user must follow to challenge the 
accuracy of the information on which Reclamation's preliminary 
determination is made.
    In the proposed rule, Reclamation anticipates including provisions 
that would serve to legalize Non-Contract Use, where possible, by 
working with Non-Contract Users to obtain a legal right to use Colorado 
River water. Here are several options that Reclamation will consider:
    1. Some water may be available under the three Lower Division 
States' apportionments.
    (a) Arizona: Some Colorado River water may be available for 
allocation in Arizona. After Reclamation consults with Arizona 
Department of Water Resources (ADWR), some of Arizona's unobligated 
Colorado River water could be committed for use by Non-Contract Users 
in Arizona. A possible contract between ADWR and Reclamation may 
satisfy the contract requirement for multiple individual water users 
and eliminate the need for contracts between the United States and the 
individual Non-Contract water users.
    (b) California: All Colorado River water available for use in 
California is already under permanent contract. However, a small amount 
of water is available for domestic use in California through the Lower 
Colorado Water Supply Project (LCWSP). Non-Contract Users in California 
who are eligible for domestic use in California and who wish to 
participate under the LCWSP would need to enter into a water delivery 
subcontract with the City of Needles. The City of Needles is the only 
entity authorized to enter into a standard form subcontract for 
delivery of this water supply to project beneficiaries.
    (c) Nevada: All Colorado River water available for use in Nevada is 
already under permanent contract. Any commitment to recognize new uses 
of Colorado River water in Nevada would be subject to terms established 
by the Southern Nevada Water Authority (SNWA). SNWA has an existing 
Entitlement to the delivery and use of any Colorado River water not 
previously committed for use by other Nevada water users.
    2. A water user may be able to acquire an Entitlement through an 
assignment, transfer, or lease from an existing Entitlement holder 
within that state. However, an assignment, transfer, or lease is not 
valid unless it is approved by Reclamation.
    3. A water user may be able to obtain a right to use water as a 
customer of an existing contract holder. The place of water use must be 
included within the contract holder's service area and the inclusion 
must be approved by Reclamation.
    4. A water user may be able to acquire a different source of water 
that is not hydraulically connected to the mainstream of the Colorado 
River.
    Directives in the BCPA and the Supreme Court Decree provide that 
all delivery and use of Colorado River water must be under a valid 
contract or other form of entitlement with the United States. 
Implementation of the anticipated rule would protect Entitlement 
holders by documenting appropriate steps to terminate a Non-Contract 
Use. Thus, Reclamation anticipates that the proposed rule would provide 
that if Reclamation determines a water user is making a Non-Contract 
Use and the water user is unable to acquire a legal right to use 
Colorado River water, Reclamation would order that water user to cease 
the Non-Contract Use and pursue available legal options to stop the 
Non-Contract Use.

Submitting Comments

    Reclamation's 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 
may be other 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.
    If you comment via the Internet, please submit comments in plain 
text, using the characters available on a standard typewriter or 
computer keyboard. Avoid using special characters and any form of 
encryption. Please include your name and e-mail or postal address in 
your Internet message. If you do not receive a confirmation via e-mail 
that Reclamation has received your Internet message, please contact us 
directly at (702) 293-8192.

    Dated: August 8, 2006.
Mark Limbaugh,
Assistant Secretary--Water and Science.
 [FR Doc. E6-13687 Filed 8-17-06; 8:45 am]
BILLING CODE 4310-MN-P