[Federal Register Volume 73, Number 137 (Wednesday, July 16, 2008)]
[Proposed Rules]
[Pages 40916-40932]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-16001]
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Part II
Department of the Interior
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Bureau of Reclamation
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43 CFR Part 415
Regulating the Use of Lower Colorado River Water Without an
Entitlement; Proposed Rule
Federal Register / Vol. 73 , No. 137 / Wednesday, July 16, 2008 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Bureau of Reclamation
43 CFR Part 415
RIN 1006-AA50
Regulating the Use of Lower Colorado River Water Without an
Entitlement
AGENCY: Bureau of Reclamation, Interior.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Bureau of Reclamation (Reclamation) proposes to address
and eliminate the use of Colorado River water from the mainstream in
the lower Colorado River basin (Lower Basin) without an entitlement.
For the last eight years, the upper and lower Colorado River basins
have experienced the worst drought conditions in approximately one
hundred years of recorded history. This drought is the first sustained
drought to be experienced on the Colorado River when all major storage
facilities are in place and when Arizona, California, and Nevada (Lower
Division States) are fully utilizing their basic Colorado River water
apportionment of 7.5 million acre-feet per year. Reclamation believes
that development of such a rule will help ensure the long-term
sustainability of the lower Colorado River and in doing so will protect
the water rights of lower Colorado River water entitlement holders. The
rule establishes procedures that Reclamation will follow in making
determinations of unlawful use of lower Colorado River water. The rule
includes notice and appeal procedures for those persons or entities
whose use of lower Colorado River water is identified as unlawful.
Reclamation is seeking comments on the proposed rule including
comments that identify any specific economic impacts to members of the
public and to small businesses located within the boundary of the river
aquifer. The comments should include any identified or potential
economic impacts and the estimated costs of the impacts.
DATES: Submit comments on the rule by September 15, 2008.
ADDRESSES: You may submit comments on the rule, identified by number
1006-AA50, by one of the following methods:
--Use of the Federal e-rulemaking Web site: http://www.regulations.gov.
The notice has been assigned Docket ID: BOR-2008-0001. Follow the
instructions for submitting comments using this Docket ID number.
--By mail to: Bureau of Reclamation, P.O. Box 61470, Boulder City, NV
89006-1470, Attention: Area Manager, Boulder Canyon Operations Office,
Mail Code BCOO-1000. Please include the number 1006-AA50 and the Docket
ID (BOR-2008-0001) in your correspondence.
FOR FURTHER INFORMATION CONTACT: Margot Selig, 702-293-8192.
SUPPLEMENTARY INFORMATION:
I. Background
Legal System for Use of Colorado River Water in the Lower Basin.
The Colorado River is the primary source of water for irrigation,
municipal, and industrial uses in the Lower Basin within 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 which addresses the use of the Colorado, Rio Grande,
and Tijuana Rivers.
To lawfully use water from the mainstream of the lower Colorado
River, a person or entity must have an entitlement. An entitlement
authorizes a person or entity to use water from the lower Colorado
River for beneficial use and exists in one of three forms: (a) A
decreed right as described in the Consolidated Decree entered by the
United States Supreme Court in Arizona v. California, 547 U.S. 150
(2006) (Supreme Court Decree), (b) a contract with the Secretary of the
Interior (Secretary), or (c) a Secretarial Reservation of Colorado
River water. An entitlement to use lower Colorado River water specifies
the quantity of water which may be used, the purpose for which the
water may be used, and the location where the use may occur. Any
diversion or consumptive use of lower Colorado River water without an
entitlement is unlawful.
The BCPA and the Supreme Court Decree require a Colorado River
water user in the Lower Basin to have a contract with the Secretary for
the storage, delivery, and use of such water. The Regional Director of
Reclamation's Lower Colorado Region enters into water delivery
contracts with water users in Arizona, California, and Nevada on behalf
of the Secretary. The BCPA and the Reclamation Act of 1902 authorize
the Secretary to prescribe such rules and regulations necessary to
carry out provisions of law.
The Supreme Court Decree requires the United States to account for
all mainstream 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 an entitlement. All reported Colorado River
water use in a state 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. The Supreme Court Decree specifies that
consumptive use of Colorado River water in the Lower Basin includes
water drawn from the mainstream by underground pumping.
Technical Issues To Be Addressed. Current data show that Colorado
River water used in the Lower Basin without an entitlement outside of
existing lower Colorado River water delivery service areas ranges
between 9,000 and 15,000 acre-feet per year. The amount of lower
Colorado River water pumped by wells and river pumps within service
areas that is not accounted for under existing entitlements is unknown.
The largest amount of water being unlawfully used from the Colorado
River in the Lower Basin occurs via underground pumping for irrigation
use from wells located on the floodplain. The majority of water users
who are using lower Colorado River water without an entitlement consist
of households which pump small amounts of water for domestic use from
wells located on the floodplain.
At Reclamation's request, the United States Geological Survey
(USGS) has developed a method to identify wells that pump water that is
replaced by water drawn from the lower Colorado River. The USGS method
identifies a River Aquifer and a theoretical accounting surface within
the River Aquifer. The River Aquifer extends outward from the Colorado
River until encountering a geologic barrier to groundwater flow and
encompasses the water bearing materials from which water can move to
and from the lower Colorado River. The accounting surface was developed
with a groundwater model and represents the elevation and extent of the
river aquifer that is in hydraulic connection with the lower Colorado
River. The accounting surface extends outward from the exterior
boundary of the Colorado River floodplain to the exterior limit of the
River Aquifer. Several thousand wells are located within the boundary
of the River Aquifer. The USGS is performing a well inventory within
the boundary of
[[Page 40917]]
the River Aquifer to identify river pumps and wells that can draw water
directly from the lower Colorado River or pump water that would be
replaced by water drawn from the lower Colorado River. Wells in the
floodplain pump water directly from the lower Colorado River. The
accounting surface is the area within which Reclamation will apply the
USGS method to determine whether water pumped from a well is replaced
with water drawn from the lower Colorado River. Reclamation will also
evaluate whether unique hydrologic circumstances in some areas along
the lower Colorado River merit an exception to the USGS methodology.
Need to Curtail Unlawful Use of Colorado River Water in the Lower
Basin. One of Reclamation's legal obligations and administrative
priorities is to ensure that all Colorado River water use in the Lower
Basin is covered by an entitlement and correctly accounted for within
each Lower Division State's apportionment. Each Lower Division State's
apportionment of Colorado River water is limited; thus, unlawful use
harms that state's entitlement holders by using water that those
entitlement holders could legally use otherwise. This fact leads
Reclamation to conclude that this rulemaking is necessary and
appropriate. Additionally, each Lower Division State is fully utilizing
its respective apportionment and the prolonged period of drought in the
Colorado River Basin has reduced the amount of water stored in Colorado
River reservoirs.
Content of Rule. The rule provides a framework for identifying and
curtailing the use of mainstream Colorado River water in the Lower
Basin without an entitlement. The rule will: (a) Establish the
methodology that Reclamation will use to determine if a well pumps
water that is replaced with water drawn from the lower Colorado River;
(b) establish the criteria a water user must satisfy to demonstrate
that his or her well does not pump water that is replaced with water
drawn from the lower Colorado River; and (c) establish a process for a
water user to appeal a determination that a specific well pumps water
that would be replaced by water drawn from the lower Colorado River.
In the rule, Reclamation will inform unlawful users about the
existence of various options to bring their use of Colorado River water
in the Lower Basin into compliance with Federal law. Below are several
options that Reclamation will consider:
(a) Some water may be available under the three Lower Division
States' apportionments.
(1) Arizona: Some lower Colorado River water may be available for
allocation in Arizona. Reclamation intends to consult with Arizona
Department of Water Resources (ADWR) to determine if some of Arizona's
Colorado River water could be committed for use by persons or entities
in Arizona whose Colorado River water use is found to be unlawful. For
the purposes of this rule, a water delivery 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 water users.
(2) California: All Colorado River water apportioned 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). Unlawful users in California who
are eligible for domestic use in California and who wish to participate
under the LCWSP must 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 LCWSP beneficiaries.
(3) Nevada: All Colorado River water apportioned 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.
(b) A water user may be able to obtain an entitlement through an
assignment, transfer, or lease from an existing entitlement holder
within that state. An assignment, transfer, or lease must be approved
by Reclamation.
(c) A water user may be able to obtain a right to use water as a
customer of an existing entitlement holder. The place of water use must
be included within the entitlement holder's service area and the
inclusion must be approved by Reclamation.
(d) A water user may be able to acquire a different source of water
that is not hydraulically connected to the lower Colorado River.
The rule emphasizes the options for bringing one's use of lower
Colorado River water into compliance with Federal law. However, under
the rule, individuals or entities who continue to use lower Colorado
River water without an entitlement will be reported to the United
States Supreme Court by the Regional Director. The Regional Director
will work with the United States Department of Justice to seek Federal
court orders requiring these users to cease using water from the lower
Colorado River without an entitlement.
The proposed rule was preceded by an Advance Notice of Proposed
Rulemaking (ANPR), published in the Federal Register on August 18, 2006
(71 FR 47763), under the title, ``Regulating Non-Contract Use of
Colorado River Water in the Lower Basin.'' The ANPR provided for a
public comment period that ran from August 18, 2006, through October
17, 2006. Reclamation received 21 letters during the comment period.
Nine letters were requests to be placed on a mailing list. Twelve
letters contained comments on the ANPR. The commentators included one
Indian tribe, three state agencies, one interstate agency, one farmers'
organization, one commercial business, two private individuals, one
irrigation and electrical district organization, one water authority,
and one municipality. Reclamation reviewed and analyzed all comments.
The commentators generally support the development of a rule to address
the use of Colorado River water in the Lower Basin without an
entitlement. However, one commenter questioned the need for a rule
since existing law is sufficient to bring unlawful users into
compliance; this commenter requests further evaluation of the
accounting surface around Lake Mead. One commenter desires a monitoring
process, determination of required frequency for field data collection,
updates to the USGS accounting surface model, and peer review of the
USGS accounting surface methodology; this commenter is also concerned
about the timing related to the replacement of water by Colorado River
water when pumped by a well. For example, in certain areas of the River
Aquifer in Arizona, the accounting surface boundary is 30 miles from
the mainstream. One commenter said that unlawful users must have a
means to bring their use into compliance with Federal law. One
commenter said the rule should identify the point at which tributary
water becomes part of the mainstream and address water from lakes and
ponds fed from the mainstream through the subsurface. This commenter
further added that the rule must provide for due process, and establish
some type of enforcement ability to cause unlawful users to cease and
desist from using mainstream water. Several commentators stated the
necessity for
[[Page 40918]]
Reclamation to recognize the existence of unique hydrological
circumstances in some areas of the lower Colorado River which could
merit exemption to the River Aquifer/accounting surface methodology.
All of the comments received on the ANPR are addressed in the proposed
rule.
The rulemaking process provides an opportunity to (a) provide for
public review and comment on the River Aquifer/accounting surface
methodology; (b) adopt the River Aquifer/accounting surface
methodology; (c) establish procedures for determining unlawful use; (d)
develop notice and administrative appeal procedures; and (e) provide
options for unlawful users to legalize their lower Colorado River water
use. Reclamation is seeking comments on the proposed rule including
comments that identify any specific economic impacts to members of the
public and to small businesses located within the boundary of the river
aquifer. The comments should include any identified or potential
economic impacts and the estimated costs of the impacts.
USGS reports WRIR 94-4005 and WRIR 00-4085 were extensively
reviewed through the USGS peer review and report publishing process.
The frequency of field data collection for the well inventory is not
predetermined. Field data collection is expected to be a continuous
process to ensure that all wells are identified and inventoried,
including those that have been drilled after the initial field data
collection was completed for a given area. Also, the frequency for
field data collection for any given area will be determined by
Reclamation dynamically, based upon such parameters as significant
changes in river conditions, development, population, political
considerations, and availability of funding and staff. The timing of
depletions from wells distant from the lower Colorado River has been
addressed cooperatively by Reclamation and the USGS using numerical
modeling techniques. The USGS is expected to produce a peer-reviewed
``Scientific Investigations Report'' concerning this matter in July
2008.
The only area Reclamation currently considers unique enough to
warrant exemption from the River Aquifer/accounting surface method is
the Yuma, Arizona area near the City of Yuma and south to the Southerly
International Boundary (SIB) between the United States and Mexico. The
Yuma area is hydrologically unique because it is a river delta
environment, not a river environment. In the deltaic environment of the
Yuma area, much of the water diverted from the Colorado River and
applied to the ground for irrigation does not naturally return to
either the Colorado River above the Northerly International Boundary
(NIB) between the United States and Mexico or the Limotrophe section
(the section of the lower Colorado River which forms the international
boundary between the United States and Mexico from the NIB to the SIB)
as surface water. Water which does not return to either the Colorado
River above the NIB or the Limotrophe section as surface water is not
available for diversion in the United States or for satisfaction of the
Mexican water treaty. In the Yuma area, much of the water diverted from
the Colorado River and applied to the ground for irrigation flows
underground across the SIB and Limitrophe section boundaries into
Mexico. A unique set of criteria governing this area is included in
this rule at section 415.12. Should unique hydrological circumstances
be identified elsewhere within the River Aquifer, Reclamation will
likewise consider whether or not these circumstances would merit an
exception to the USGS methodology. Information regarding the
geographical applicability of the rule can be found in Subpart B of the
rule and Figures 1 through 7.
II. Procedural Requirements
1. Regulatory Planning and Review (Executive Order (E.O.) 12866)
The Office of Management and Budget (OMB) has determined that this
rule is not a significant rule and has not reviewed it under the
requirements of E.O. 12866. We have evaluated the impacts of this rule
as required by E.O. 12866 and have determined that it is not a
significant regulatory action. The results of our evaluation follow:
(a) This rule will not have an annual effect of $100 million or
more on the economy. It will not adversely affect in any material way
the economy, productivity, competition, jobs, environment, public
health or safety, or State, local, and tribal governments or
communities. This rule will protect lawful entitlements to use water
from the lower Colorado River by providing a method for identifying and
reporting persons and entities unlawfully using such water.
Reclamation will incur ongoing administrative costs to monitor and
address unlawful use of lower Colorado River water. Activities related
to monitoring and addressing unlawful use of lower Colorado River water
must be performed with or without promulgation of the rule for
Reclamation to remain in compliance with Colorado River law. The
Federal cost incurred to monitor and address unlawful use of lower
Colorado River water is not incremental to the rule.
Water users who are using lower Colorado River water without an
entitlement may incur costs to bring their lower Colorado River water
use into compliance with Federal law. The type and amount of costs will
vary among water users depending upon the state in which their well or
river pump is located, the manner in which a water user chooses to
acquire an entitlement if appropriate, whether or not their well or
river pump is located within the boundaries of an entitlement holder's
service area, and the fees assessed by the entitlement holder.
(b) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. Under the
BCPA, the United States Congress allocated among the Lower Division
States the mainstream water in the lower Colorado River to which they
were entitled under the Colorado River Compact of 1922. Through the
BCPA, the Congress uniquely authorized the Secretary to accomplish the
allocation of Colorado River water among the Lower Division States by
empowering the Secretary to enter into contracts for the delivery of
water and by providing that no person shall have or be entitled to have
the use of Colorado River water without a contract. The United States
Supreme Court validated these and other provisions of the BCPA in the
June 3, 1963 United States Supreme Court Opinion in Arizona v.
California (376 U.S. 546) and the Supreme Court Decree. In the Supreme
Court Decree the Secretary is charged with, among other things,
accounting for and reporting the consumptive use of Colorado River
water diverted directly from the mainstream and/or through underground
pumping. Reclamation performs water contracting and water accounting
responsibilities on behalf of the Secretary. No other agency in the
United States performs these functions on the lower Colorado River.
(c) This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients; all of these will continue unaffected by the issuance
of this rule.
(d) This rule does not raise any novel legal or policy issues. This
rule will not implement requirements upon users of lower Colorado River
water that do not already exist.
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2. Regulatory Flexibility Act
The Department of the Interior (Interior) certifies that this
document will not have a significant economic effect on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601, et seq.). This rule imposes no requirements upon small governments
(including Native American communities), small entities such as water
purveyors or associations, individual lower Colorado River water
entitlement holders or lawful water users that are not already imposed
by the BCPA and the Supreme Court Decree concerning the use of lower
Colorado River water. This rule does not impose a requirement for small
entities to report or keep records on any of the requirements contained
in this rule other than the type of recordkeeping regarding lower
Colorado River water use that is already required by water delivery
contracts with the Secretary. You may obtain a copy of the Initial
Regulatory Flexibility Analysis by contacting us at the address in the
Addresses section. Development of a Small Entity Compliance Guide is
not required.
3. Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under the Small Business Regulatory
Enforcement Fairness Act (5 U.S.C. 804(2)). This rule:
(a) Does not have an annual effect on the economy of $100 million
or more. Under the Benefit-Cost Analysis/Unfunded Mandates Reform Act
Analysis performed to evaluate the potential economic impacts of this
rule the estimated net present value of the impact to the economy from
2008 through 2027 ranges between $256,313 to $3,742,363 under a real
discount rate of 7.0 percent and $340,804 to $5,375,118 under a real
discount rate of 3.0 percent. The estimated economic impacts over the
20-year period of the study are associated with costs that may be
incurred when unlawful users of lower Colorado River water incur costs
to either obtain a lower Colorado River water entitlement or become a
customer of a lower Colorado River water entitlement holder. Federal
costs related to oversight of unlawful use of lower Colorado River
water will be incurred with or without the rule in fiscal years 2008
through 2010.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. The estimated economic impacts are not
significant. This rule does not impose new requirements regarding the
lawful use of lower Colorado River water.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
United States-based enterprises to compete with foreign-based
enterprises. The potential economic impacts incurred by lower Colorado
River water users who are unlawfully using lower Colorado River water
are not significant. This rule establishes procedures that Reclamation
will use to determine if a well pumps water that is replaced by water
drawn from the lower Colorado River.
4. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more
annually. This rule does not have a significant or unique effect on
State, local, or tribal governments or the private sector. This rule
imposes no requirements regarding the lawful use of lower Colorado
River water that are not already imposed by the BCPA and the Supreme
Court Decree. You may obtain a copy of the Benefit-Cost Analysis/
Unfunded Mandates Reform Act Analysis for Proposed Rulemaking by
contacting us at the address in the Addresses section. Therefore, a
statement containing information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531, et seq.) is not required.
5. Takings (E.O. 12630 and E.O. 13406)
Under the criteria in E.O. 12630 and E.O. 13406, this rule does not
have any significant takings implications. A Takings Implication
Assessment is not required. This rule will protect valid water rights
and help to ensure the long-term sustainability of the resource. For
water users far from the river channel or reservoirs and who are
pumping groundwater outside of the lower Colorado River floodplain,
this rule provides for a test which can determine if water pumped by a
well is replaced by water drawn from the mainstream of the lower
Colorado River. The test is based upon the lower Colorado River
accounting surface developed by the USGS. If, according to the test,
the well is drawing water from the mainstream of the lower Colorado
River, the well user must have an entitlement to use the water. This
rule provides information explaining how to acquire an entitlement to
use lower Colorado River water. This rule also explains the steps that
Reclamation will take against a person or entity for failure to stop
using lower Colorado River water unlawfully.
6. Federalism (E.O. 13132)
Under the criteria in E.O. 13132, the proposed rule does not have
any federalism implications to warrant the preparation of a Federalism
Assessment. The rule is not associated with, nor will it have
substantial direct effects on the States, on the relationship between
the National Government and the States, or on the distribution of power
and responsibilities among the various levels of government. A
Federalism Assessment is not required.
7. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule:
(a) Does not unduly burden the judicial system;
(b) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(c) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
8. Consultation With Indian Tribes (E.O. 13175)
Under E.O. 13175, Reclamation has evaluated this rule and
determined that it would have no substantial effects on federally
recognized Indian tribes. Reclamation consulted with the Indian tribes
that are located on the mainstream of the lower Colorado River on
November 1, 2006, to discuss the objectives of this rule and to hear
questions and concerns on the part of Indian tribes.
9. Paperwork Reduction Act
This rule does not require collection of new or additional
information from the public other than what is already required from
Colorado River water entitlement holders regarding their water use. A
submission under the Paperwork Reduction Act is not required.
10. National Environmental Policy Act of 1969 (NEPA)
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. An environmental
assessment consistent with NEPA requirements has been prepared and is
summarized below. This rule does not require construction of water
diversion, delivery, treatment, or storage facilities. This rule does
not impact cultural resources or threatened or endangered species. This
rule may improve the long-term sustainability of the lower Colorado
River by establishing
[[Page 40920]]
procedures which enable Reclamation to identify unlawful users of lower
Colorado River water. You may obtain a copy of the environmental
assessment by contacting us at the address in the Addresses section or
you may find the environmental assessment on Reclamation's Web page at
http://www.usbr.gov/lc/.
11. Information Quality Act
In developing this rule, we did not conduct or use a study,
experiment, or survey requiring peer review under the Information
Quality Act (Pub. L. 106-554).
12. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in the E.O. 13211. A Statement of Energy Effects is not required.
13. Clarity of This Regulation
We are required by E.O. 12866 and E.O. 12988, and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you believe these requirements have not been met, please send
comments to Reclamation as instructed in the Addresses section. Please
make your comments as specific as possible, referring to specific
sections and how they could be improved. For example, you should tell
us the numbers of the sections or paragraphs that are unclearly
written, which sections or sentences are too long, the sections where
you believe lists or tables would be useful, etc.
14. Public Availability of Comments
Before including your name, address, phone number, e-mail address,
or other personal identifying information in your comment, you should
be aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
List of Subjects in 43 CFR Part 415
Water resources, Water supply.
Dated: July 9, 2008.
Timothy R. Petty,
Acting Assistant Secretary for Water and Science.
For the reasons stated in the preamble, the Bureau of Reclamation
proposes to add a new part 415 to Title 43 of the Code of Federal
Regulations to read as follows:
PART 415--REGULATING THE USE OF LOWER COLORADO RIVER WATER WITHOUT
AN ENTITLEMENT
Subpart A--Purpose, Definitions, and Applicability
Sec.
415.1 What is the purpose of this part?
415.2 What terms are used in this part?
415.3 What is the difference between lawful and unlawful use of
lower Colorado River water?
415.4 How do I know if the water I use is subject to this part?
415.5 How will the river aquifer/accounting surface methodology be
applied?
Subpart B--Determining the Status of a Well
415.10 How do I determine if my well is in the floodplain?
415.11 How do I determine if my well is outside the floodplain but
drawing water out of the lower Colorado River?
415.12 How do I determine the status of my well if it is located in
the Yuma accounting area?
Subpart C--Adjustments to the River Aquifer, Floodplain, or the
Accounting Surface
415.20 What conditions may cause adjustments to the river aquifer
boundaries and the elevation values which define the accounting
surface?
415.21 How will Reclamation make adjustments to the Yuma accounting
area?
Subpart D--Notification of Well Status
415.30 What is the procedure for determining the status of my well
and how will I be notified?
415.31 How may I challenge the determination of my well status?
Subpart E--Bringing Your Use of Lower Colorado River Water Into
Compliance With Federal Law
415.40 How may I lawfully use water from the lower Colorado River?
415.41 Will compliance with Federal law incur any cost for which I
will be responsible?
415.42 What is the role of an existing entitlement holder under this
part?
415.43 Is this part applicable to existing lower Colorado River
water delivery contracts?
Subpart F--Penalty for Noncompliance
415.50 What if I continue to use water from the lower Colorado River
without an entitlement?
Illustrations to Part 415
Authority: 5 U.S.C. 552; 43 U.S.C. 373, 485, 617.
Subpart A--Purpose, Definitions, and Applicability
Sec. 415.1 What is the purpose of this part?
This part protects lawful entitlements to use water from the lower
Colorado River by providing a method for identifying persons and
entities unlawfully using such water.
Sec. 415.2 What terms are used in this part?
Accounting surface means the elevation and slope of the unconfined
static water table in the river aquifer outside the floodplain and the
reservoirs of the lower Colorado River that would exist if the lower
Colorado River were the only source of water to the river aquifer. The
accounting surface extends outward from the edges of the floodplain or
a reservoir to the subsurface boundary of the river aquifer from the
mouth of the Grand Canyon to just north of the Southerly International
Boundary (SIB). In the Yuma accounting area, the use of the accounting
surface is superseded as determined by Reclamation.
Accounting year means January 1 through December 31.
Boulder Canyon Project Act of 1928 (BCPA) means the act which
established the responsibilities of the Secretary of the Interior to
direct, manage, and coordinate the operation of Colorado River dams and
related works in the Lower Basin.
Colorado River water means water in or withdrawn from the
mainstream of the Colorado River, including the following:
(1) Water in the surface channels and reservoirs of the Colorado
River;
(2) Water in the floodplain drains;
(3) Water beneath the Colorado River floodplain; and
(4) Water withdrawn from beneath the accounting surface.
Domestic use means the use of Colorado River water for household,
stock, municipal, mining, milling, industrial and other like purposes,
excluding the generation of electrical power.
Floodplain means that part of the lower Colorado River valley that
has been covered by floods of the modern lower Colorado River as it
meandered prior to construction of Hoover Dam. The floodplain commonly
is bounded by terraces and alluvial slopes that rise to the foot of the
mountains that rim the valley. In the Yuma area, the floodplain
includes the floodplain of the Gila River from the Laguna and Gila
Mountains to
[[Page 40921]]
the confluence with the lower Colorado River.
Lower basin means the lower Colorado River basin, which includes
those parts of Arizona, California, Nevada, New Mexico, and Utah within
and from which waters naturally drain into the Colorado River below Lee
Ferry. The lower basin also includes parts of those same states that
are located outside the drainage area of the Colorado River that are or
can be beneficially served by waters diverted from the Colorado River
below Lee Ferry.
Lower Colorado River water means mainstream water.
Lower Division States means Arizona, California, and Nevada.
Mainstream means the main channel of the Colorado River downstream
from Lee Ferry within the United States. The mainstream includes the
reservoirs behind dams on the main channel and Senator Wash Reservoir
off the main channel.
Mainstream water means
(1) Water drawn or diverted from the main channel of the lower
Colorado River, exclusive of tributaries, within the United States
downstream from Lee Ferry (including the areas covered by reservoirs,
wetlands, lakes, ponds, and backwaters);
(2) Water withdrawn by a well within the boundary of the floodplain
portion of the lower Colorado River aquifer; and
(3) Within the boundary of the accounting surface portion of the
lower Colorado River aquifer, water withdrawn from a well with a static
water level indistinguishable from or less than the elevation of the
accounting surface at the well site.
NIB means the Northerly International Boundary with Mexico.
Normal flow conditions mean that releases from Hoover Dam are made
in accordance with downstream requirements to satisfy 7.5 million acre-
feet of consumptive use in the United States and a delivery of 1.5
million acre-feet to Mexico.
Regional Director means the Regional Director, Lower Colorado
Region, Bureau of Reclamation, Boulder City, Nevada.
River aquifer means the unconfined aquifer that consists of the
saturated, permeable sediments and sedimentary rocks that are
hydraulically connected to the lower Colorado River so that water can
move between the lower Colorado River and the aquifer in response to
withdrawal of water from the aquifer or differences in water level
elevations between the lower Colorado River and the aquifer. The river
aquifer consists of the aquifer underlying the lower Colorado River's
floodplain and the accounting surface. The river aquifer has been
delineated from the mouth of the Grand Canyon to SIB.
SIB means the Southerly International Boundary with Mexico.
Static water elevation means the non-pumping elevation of the water
in a well, measured as the elevation of the ground, or other
appropriate elevation reference, less the depth to water in the well
with the pump turned off and the water elevation in the well recovered
to the non-pumping elevation.
Tributary water is water that enters the mainstream or the river
aquifer from a source other than the Colorado River.
USGS means the United States Geological Survey of the Department of
the Interior.
Wells with a static water elevation that cannot be distinguished
from the accounting surface means wells that have a static water
elevation which is within 0.84 feet from the accounting
surface elevation in the area of the well.
Yuma accounting area means the area in Arizona generally downstream
from the confluence of the Gila River, on the Yuma Mesa, and the Yuma
Valley. This area is delineated in Figure 7 of this part.
Sec. 415.3 What is the difference between lawful and unlawful use of
lower Colorado River water?
(a) A person or entity may lawfully use water from the lower
Colorado River only under an entitlement. An entitlement means an
authorization to use water from the lower Colorado River water as
described in:
(1) The Consolidated Decree entered by the United States Supreme
Court in Arizona v. California in March of 2006, as supplemented or
amended;
(2) A water delivery contract with the Secretary of the Interior;
or
(3) A reservation of water by the Secretary of the Interior.
(b) If you are using water from the lower Colorado River without an
entitlement, you are using water unlawfully. You must obtain an
entitlement or you must stop using water from the lower Colorado River.
Sec. 415.4 How do I know if the water I use is subject to this part?
(a) This rule applies to you if you use water from the mainstream
of the lower Colorado River within the States of Arizona, California,
or Nevada. The lower Colorado River begins at Lee Ferry, Arizona, which
is located 17.3 miles downstream from Glen Canyon Dam. The mainstream
of the lower Colorado River includes all water in the river channel and
all water in any reservoir on the lower Colorado River. Water in the
mainstream of the lower Colorado River originates from many sources
both above and below the ground. When surface water from tributary
valleys reaches the mainstream of the lower Colorado River, it becomes
Colorado River water. When tributary water commingles with Colorado
River water beneath the floodplain, it becomes mainstream water.
Tributary water that commingles with groundwater beneath the accounting
surface, where the elevation of the water table is below or cannot be
distinguished from the elevation of the accounting surface, is
considered mainstream water.
(b) You are using mainstream water from the lower Colorado River if
you divert any water out of the river channel; for example, by a
diversion dam, a river pump, or a hose. You are using mainstream water
from the lower Colorado River if you are diverting water out of a
reservoir, such as Lake Mead, Lake Mohave, or Lake Havasu. You are
using mainstream water from the lower Colorado River if you operate a
well located in the river's floodplain, because that well draws water
directly from the mainstream. You are using mainstream water from the
lower Colorado River if you operate a well located outside the
floodplain and your well pumps water that is replaced by water drawn
from the lower Colorado River, as determined by the river aquifer/
accounting surface methodology.
Sec. 415.5 How will the river aquifer/accounting surface methodology
be applied?
(a) Your well must be located within the exterior boundary of the
river aquifer to potentially pump water from the lower Colorado River.
The river aquifer extends from Lake Mead downstream to SIB and
laterally into adjacent areas generally until encountering a barrier to
subsurface flow. The river aquifer contains two smaller areas called
the floodplain and the accounting surface. The accounting surface
exists within the river aquifer and extends laterally from edges of the
floodplain (or edges of a reservoir) to the extent of the river aquifer
from Lake Mead downstream to just north of SIB.
(b) Surface water from tributary valleys is considered Colorado
River water when it reaches the mainstream of the lower Colorado River.
When tributary water commingles with groundwater beneath the
floodplain, it becomes mainstream water. Tributary water beneath the
accounting surface, where the elevation of the water table is below or
cannot be distinguished from
[[Page 40922]]
the elevation of the accounting surface, is considered mainstream
water.
(c) If your well is located in the floodplain portion of the river
aquifer, you are pumping lower Colorado River water. If your well is
located in the accounting surface portion of the river aquifer, you are
pumping water that is replaced by water drawn from the lower Colorado
River unless the static water elevation in your well is above the
elevation of the accounting surface in the area of your well.
(1) Lee Ferry to the mouth of the Grand Canyon. The river aquifer,
floodplain, and accounting surface have not been delineated from Lee
Ferry to the mouth of the Grand Canyon as of the writing of this part.
The determination of whether a well is pumping water from the lower
Colorado River or water that is replaced by water drawn from the lower
Colorado River will be made on a case-by-case basis for wells in this
area using criteria determined by the Regional Director.
(2) Lake Mead area. In the area surrounding Lake Mead, the river
aquifer/accounting surface methodology will be used to determine if a
well will be considered to pump lower Colorado River water or water
replaced by water drawn from the mainstream of the lower Colorado
River. The accounting surface in the area surrounding Lake Mead
requires unique treatment in this part. The water surface elevation of
Lake Mead fluctuates significantly on an annual basis in response to
variations in the natural water supply. This fluctuation is unlike the
other reservoirs of the lower Colorado River which correspond to
monthly operational targets. The accounting surface in the area
surrounding Lake Mead will vary annually and will be set at the high
end-of-month elevation of Lake Mead for the accounting year.
Information regarding the elevation and lateral extent of the
accounting surface surrounding Lake Mead will be provided every 5 years
via publication of a notice in the Federal Register. Figures 2 and 3 of
this part show the outer-most boundary of the accounting surface
surrounding Lake Mead.
(3) Downstream from Lake Mead to the Yuma accounting area.
Accounting surface elevations in the areas surrounding Lake Mohave and
Lake Havasu are set at the annual high end-of-month water surface
elevation targets used to operate these reservoirs under normal flow
conditions. The accounting surface elevations elsewhere are determined
by water surface profiles of the lower Colorado River and by water
surface elevations in drainage ditches where they exist in irrigated
floodplain areas under normal flow conditions.
(d) Though the accounting surface has been defined to just north of
SIB, the river aquifer/accounting surface methodology will be utilized
to identify wells which pump water that is replaced by water drawn from
the lower Colorado River only in the portion of the river aquifer
upstream of the Yuma accounting area as shown in Figure 6. The method
described in Sec. 415.12 will be used in the Yuma accounting area to
determine whether or not a well pumps lower Colorado River water or
groundwater which otherwise would have returned to the lower Colorado
River upstream of NIB.
Subpart B--Determining the Status of a Well
Sec. 415.10 How do I determine if my well is in the floodplain?
Use the following guidelines to determine if your well is in the
floodplain.
(a) Generalized maps (not drawn to scale) of the floodplain of the
lower Colorado River from Davis Dam to the northern boundary of the
Yuma accounting area are provided at the end of this part in Figures 4
through 6. If your well is located in the floodplain shown in Figures 4
through 6, you are pumping water from the lower Colorado River and you
must have an entitlement to lawfully use that water.
(b) The floodplain of the area in northern Arizona between Lee
Ferry, Arizona, and the mouth of the Grand Canyon has not yet been
determined. If your well is between Lee Ferry and the mouth of the
Grand Canyon, Reclamation will consider the facts on a case-by-case
basis to determine if your well withdraws water from the lower Colorado
River.
(c) If you need help to determine whether your well is located
within the floodplain, you may contact the Bureau of Reclamation, P.O.
Box 61470, Boulder City, NV 89006-1470, Attention: Area Manager,
Boulder Canyon Operations Office (BCOO-1000).
Sec. 415.11 How do I determine if my well is outside the floodplain
but drawing water out of the lower Colorado River?
(a) A well located within the accounting surface portion of the
river aquifer will be considered to pump water that is replaced by
water drawn from the lower Colorado River if the static water elevation
in the well is less than or cannot be distinguished from the elevation
of the accounting surface at the well site.
(1) The accounting surface is the elevation at which underground
water would be expected to occur in a particular area of the river
aquifer if the lower Colorado River was the only source of groundwater
in the area. Therefore, water pumped below or from an elevation
indistinguishable from the elevation of the accounting surface in the
location of your well will be replaced by water drawn from the lower
Colorado River. Generalized maps (not drawn to scale) of the accounting
surface from the mouth of the Grand Canyon to the northern boundary of
the Yuma accounting area outside the floodplain are provided at the end
of this part as Figures 2 through 6. If your well is located outside
the floodplain but within the boundary of the river aquifer, the USGS
will be required to measure the static water elevation in your well to
determine if it is pumping water replaced by water drawn from the lower
Colorado River.
(2) The static water elevation in your well is compared by
Reclamation to the elevation of the accounting surface at your well
site. If the static water elevation in your well is indistinguishable
from or lower than the elevation of the accounting surface where your
well is located, you are pumping water that is replaced by water drawn
from the mainstream of the lower Colorado River. You must have an
entitlement to lawfully use water from the lower Colorado River. The
USGS will provide advance notice to you before measurements are made by
the USGS. If the static water level has never been measured in your
well, you may contact the Bureau of Reclamation, P.O. Box 61470,
Attention: Area Manager, Boulder Canyon Operations Office, Mail Code
BCOO-1000, Boulder City, NV 89006-1470 to schedule the measurement of
the static water level in your well. No other data or method are
available to determine if your well is pumping water that is replaced
by lower Colorado River water. Thus, if a well user denies an employee,
agent, or contractor of Reclamation or the USGS access to a well to
make the required measurements, Reclamation will presume that the well
pumps water that is replaced by water drawn from the lower Colorado
River. If the USGS is physically unable to make the required
measurements due to well construction, Reclamation will presume that
the well pumps water that is replaced by water drawn from the lower
Colorado River. Such a presumption about your well is made, absent the
measurement of the static water elevation in your well, to maintain
compliance with the BCPA.
[[Page 40923]]
The BCPA requires all persons using lower Colorado River water to have
a contract for the storage and delivery of Colorado River water with
the Secretary of the Interior or a perfected water right under state
law which existed prior to June 25, 1929, the effective date of the
BCPA.
Sec. 415.12 How do I determine the status of my well if it is located
in the Yuma accounting area?
(a) This section defines the boundaries of the Yuma accounting area
and describes criteria for determining when water withdrawn by a well
is lower Colorado River water or groundwater that is flowing to the
lower Colorado River upstream of NIB. The Yuma accounting area is
delineated in Figure 7 of this part.
(b) The Yuma accounting area is hydrologically unique because much
of the water diverted from the lower Colorado River and applied for
irrigation generally flows underground across the SIB or under the
Colorado River south of the NIB and does not return to the lower
Colorado River in the United States through natural hydrologic
processes. Water which does not return to the Colorado River above the
NIB, or which does not return to the Limotrophe section (the section of
the lower Colorado River which forms the international boundary between
the United States and Mexico from the NIB to the SIB) as surface water
is not available to satisfy consumptive use in the United States or
delivery obligations to Mexico by the United States under the Mexican
Treaty. Reclamation determined that wells within the Yuma accounting
area deserve separate consideration due to the direction of groundwater
flow and the deltaic nature of the Yuma area. Reclamation developed an
accounting method to determine whether or not wells in this area pump
lower Colorado River water, or water previously diverted from the lower
Colorado River which would otherwise return to the lower Colorado
River. In the Yuma accounting area, unmeasured return flow credit is
calculated and credited to Arizona assuming there are no intervening
wells or depletions from the time the flows leave an irrigation
district to the time the flows return to the lower Colorado River.
Therefore, in the Yuma accounting area, wells which pump groundwater
which otherwise would have returned to the lower Colorado River
upstream of the NIB are considered to be using lower Colorado River
water.
(c) Figure 7 of this part depicts a groundwater divide at the
northern end of the Yuma accounting area. In the Yuma accounting area,
north of the groundwater divide, groundwater flows north to the lower
Colorado River above the NIB as of the adoption of this part.
Reclamation will determine that your well pumps lower Colorado River
water if your well is located in an area where groundwater flows toward
the lower Colorado River upstream of the NIB, as depicted in Figure 7
of this part.
(d) Your well is exempt from this rule if your well is located
south of the groundwater divide depicted in Figure 7 of this part where
groundwater does not flow toward the lower Colorado River upstream of
the NIB.
Subpart C--Adjustments to the River Aquifer, Floodplain, or the
Accounting Surface
Sec. 415.20 What conditions may cause adjustments to the river
aquifer boundaries and the elevation values which define the accounting
surface?
(a) Physical evidence to support adjustment to the geographic
boundary of the river aquifer would include, but are not limited to,
information derived from geologic studies, geophysical studies, well
drilling, or the result of an extreme hydrologic event.
(b) Changes in conditions that define the lower Colorado River
profile may cause Reclamation to adjust the accounting surface
elevation contours. Such changes in conditions may include, but are not
limited to, changes in development or growth which may increase or
decrease groundwater pumping in the Yuma accounting area, changes in
water deliveries and/or uses, changes in reservoir operations, or
changes in hydraulic conditions or other conditions that may result in
significant water surface elevation changes in the lower Colorado River
channel, reservoirs, and drainage ditches of the lower Colorado River.
(c) The USGS and Reclamation will document the basis for any
adjustments to the accounting surface elevations or the geographic
boundary of the river aquifer and/or the accounting surface in a report
which will be made available to the public. This part would be amended
to reflect changes in the accounting surface elevations and/or the
geographic boundary of the river aquifer.
Sec. 415.21 How will Reclamation make adjustments to the Yuma
accounting area?
(a) The method described in Sec. 415.12 will be used in the Yuma
accounting area unless or until groundwater gradients in the Yuma
accounting area change so as to require a re-evaluation of the areas
from which groundwater flows toward the Colorado River upstream of NIB.
Such a change could occur due to increased groundwater pumping and/or a
redistribution of groundwater pumping in the Yuma accounting area.
(b) In the event of a re-evaluation, Reclamation will review the
method for the Yuma accounting area and modify it, as needed, following
consultations with the Lower Division States. Reclamation's review will
be conducted in coordination with the Lower Division States. Changes in
the Yuma accounting area will be formalized by revising this part.
Subpart D--Notification of Well Status
Sec. 415.30 What is the procedure for determining the status of my
well and how will I be notified?
(a) The Regional Director will consider information relating to
Sec. Sec. 415.10 through 415.12 to determine whether or not you are
using water from the lower Colorado River without an entitlement. If
your well is located within the accounting surface, the USGS will ask
permission to measure the static water elevation in your well and the
elevation of the land surface (or other appropriate elevation datum) at
your well site to determine if the water pumped from your well is lower
Colorado River water or water replaced by water drawn from the lower
Colorado River. After the USGS measures the static water elevation in
your well, the Regional Director will inform you about the status of
your well in writing. If you do not give the USGS permission to measure
the static water elevation in your well, the Regional Director will
assume that water pumped from your well is lower Colorado River water
or water replaced by water drawn from the lower Colorado River.
(b) The Regional Director will establish a file for each
determination that you dispute. This file is an administrative record
and will contain all relevant information regarding the status of your
well or other means of using water from the lower Colorado River. You
are entitled to review the administrative record. All of the
information considered by the Regional Director will be included in the
administrative record.
(c) If the Regional Director determines you are using water from
the lower Colorado River without an entitlement, the Regional Director
will notify you of the determination in writing by certified mail,
return receipt requested, and provide the basis for the determination.
The Regional Director's determination is final unless, within 60 days
of the receipt of the notice, you file an
[[Page 40924]]
objection with the Regional Director. The Regional Director will make
reasonable attempts to locate you to send the notice of determination
and will document these attempts. If the Regional Director is unable to
locate you, the determination will be final 60 days after the first
attempt to deliver the notice.
Sec. 415.31 How may I challenge the determination of my well status?
(a) If you file a challenge to the Regional Director's
determination, you must include information to support your challenge.
The Regional Director will review your challenge and any supporting
information and will notify you in writing by certified mail, return
receipt requested, whether the determination has been changed.
(b) If the Regional Director does not change the determination, you
may file an appeal with the Commissioner of Reclamation in writing
within 30 days after receiving the notice that the determination was
not changed. If you do not file an appeal with the Commissioner, the
decision of the Regional Director is final 30 days after you received
notice that the determination was not changed.
(c) It is not necessary to include your supporting information in
the appeal to the Commissioner. The Regional Director will send the
administrative record to the Commissioner and will include the
challenge you filed with the Regional Director and any supporting
information you filed with the challenge. The Commissioner's
determination will be made solely on the administrative record. The
Commissioner's determination is the final determination of the
Department of the Interior.
(d) Determinations by the Regional Director that may or may not be
challenged:
------------------------------------------------------------------------
You may challenge You may not challenge
------------------------------------------------------------------------
(1) That your well is, or is not, That your well in the
located within the river aquifer. floodplain is diverting lower
Colorado River water.
(2) That your well is, or is not, That the entire amount of water
located within the floodplain portion pumped from a well should be
of the river aquifer. accounted for as a diversion
of lower Colorado River water
regardless of the hypothesized
ratio of non-Colorado River
water to lower Colorado River
water.
(3) That your well is, or is not, Whether or not Reclamation will
located within the accounting surface use the method described in
portion of the river aquifer. this part to determine if a
well pumps lower Colorado
River water or water replaced
by water drawn from the lower
Colorado River.
(4) That the static water elevation in ...............................
your well in the accounting surface
portion of the river aquifer is, or is
not, below or cannot be distinguished
from the accounting surface (new
measurements will be made by the USGS;
measurements made by any other person
or entity will not be accepted).
------------------------------------------------------------------------
Subpart E--Bringing Your Use of Lower Colorado River Water Into
Compliance With Federal Law
Sec. 415.40 How may I lawfully use water from the lower Colorado
River?
You may be able to bring your use of water from the lower Colorado
River into compliance with Federal law through one of the options
provided below:
(a) Arizona. If you are using water from the lower Colorado River
in Arizona, you may be able to acquire an entitlement through a
contract with the Secretary of the Interior. You may contact the
Arizona Department of Water Resources, Attention: Arizona Department of
Water Resources, Colorado River Management, 3550 North Central Avenue,
Phoenix, Arizona 85012 for information about acquiring an entitlement
under Arizona's lower Colorado River apportionment through a contract
with the Secretary of the Interior.
(b) California. All Colorado River water apportioned for use in
California is already under permanent contract. However, if you are
using water from the lower Colorado River in California, some water is
available for domestic use in California through the Lower Colorado
Water Supply Project (LCWSP). Unlawful users in California who are
eligible as domestic users in California and who wish to participate
under the LCWSP must 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 apportioned 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.
(d) Any Lower Division State. If you are using water from the lower
Colorado River in Arizona, California, or Nevada, you may be able to
acquire an entitlement through an assignment, transfer, or lease from
an existing entitlement holder within your state. The assignment,
transfer, or lease must be approved by Reclamation.
(1) You may also be able to obtain a right to use water as a
customer of an existing entitlement holder even if your well or river
pump is not located within the entitlement holder's service area. At
the consent of the entitlement holder, your well or river pump and
place of water use must be included within the entitlement holder's
service area through a change in the service area boundary and the
inclusion must be approved by Reclamation. If your well or river pump
is already located within the entitlement holder's service area, you
must contact the entitlement holder to inquire about reporting your use
of lower Colorado River water under the entitlement holder's
entitlement. If you do not know if your well or river pump is near or
within an entitlement holder's service area, you may refer to a map of
service area boundaries within the river aquifer on Reclamation's Web
page at http://www.usbr.gov/lc/.
(2) You may contact Reclamation at the Bureau of Reclamation, P.O.
Box 61470, Boulder City, NV 89006-1470, Attention: Area Manager,
Boulder Canyon Operations Office, Mail Code BCOO-1000, for information
relating to the possibility of acquiring an entitlement to use water
from the lower Colorado River or becoming a customer of an existing
water entitlement holder.
Sec. 415.41 Will compliance with Federal law incur any costs for
which I will be responsible?
(a) You may be required to pay for certain costs when you bring
your lower
[[Page 40925]]
Colorado River water use into compliance with Federal law. The type and
amount of costs will vary among water users. The type and amount of
costs you may be required to pay will depend upon:
(1) The state in which your well or river pump is located. If you
are using water from the lower Colorado River in Arizona, and you are
not within an entitlement holder's service area, you may be able to
acquire an entitlement through a contract with the Secretary for a
nominal charge. In California, if you are not within an entitlement
holder's service area, and you wish to enter a LCWSP water delivery
subcontract with the City of Needles, you will be required to pay the
initial and annual fees charged by the City of Needles to its LCWSP
subcontractors. If your well is in Nevada, you would be required to
comply with SNWA policies.
(2) Whether or not your well or river pump is located within the
boundaries of a contract holder's service area. In Arizona and
California, if your well or river pump is not located within the
boundaries of an entitlement holder's service area, your well or river
pump may be close enough to an entitlement holder's service area so
that inclusion of your well or river pump by modification of the
service area boundary is possible. If the entitlement holder agrees to
modify its service area boundaries to include your well or river pump,
you will be required to pay for the costs incurred by Reclamation to
review and approve the inclusion. The entitlement holder may or may not
pass on its costs, if any, to you. Once you are a customer of the
entitlement holder, you may be required to pay regular fees assessed by
the entitlement holder.
(b) In Arizona and California, if your well or river pump is
already within an entitlement holder's service area, your use of lower
Colorado River water should be reported to the entitlement holder as
determined by the entitlement holder. Your lower Colorado River water
use will be accounted for by the entitlement holder with all such uses
within its service area. The entitlement holder will report the total
use of lower Colorado River water occurring within its service area
under its entitlement to Reclamation. Reclamation will account for
lower Colorado River water use reported by the entitlement holder
against the entitlement holder's entitlement on an annual basis.
Depending upon the policies and pricing structure of the entitlement
holder who is accounting for your use of lower Colorado River water,
you may be subject to fees assessed by the entitlement holder.
Sec. 415.42 What is the role of an existing entitlement holder under
this part?
Any lower Colorado River water use occurring within your service
area must be accounted for within your entitlement in accordance with
the Consolidated Decree entered by the United States Supreme Court in
Arizona v. California (547 U.S. 150 (2006)). Reclamation will assist
you by providing you with information identifying the location and type
of use for all of the wells inventoried in your service area which pump
lower Colorado River water or water replaced by water drawn from the
lower Colorado River.
Sec. 415.43 Is this part applicable to existing lower Colorado River
water delivery contracts?
Yes, the delivery of lower Colorado River water under existing
lower Colorado River water delivery contracts is subject to Federal
rules and regulations promulgated by the Secretary of the Interior
under Reclamation law.
Subpart F--Penalty for Noncompliance
Sec. 415.50 What if I continue to use water from the lower Colorado
River without an entitlement?
If you do not stop using water from the lower Colorado River
without an entitlement after the notice, determination, and appeal
procedures (if pursued) have been completed, then the Regional Director
will report you as unlawfully using Colorado River water in an annual
report filed with the United States Supreme Court. The Regional
Director will then work with the United States Department of Justice to
seek Federal court orders requiring you to stop using water from the
lower Colorado River without an entitlement.
BILLING CODE 4310-MN-P
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Illustrations to Part 415
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[FR Doc. E8-16001 Filed 7-15-08; 8:45 am]
BILLING CODE 4310-MN-C