66442 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Bureau of Reclamation

43 CFR Part 418

RIN 1006–AA37

Adjustments to 1988 Operating Criteria

and Procedures (OCAP) for the

Newlands Irrigation Project in Nevada

AGENCY: Bureau of Reclamation,

Interior.

ACTION: Final rulemaking.

SUMMARY: This rule adjusts the 1988

Operating Criteria and Procedures

(OCAP) for the Newlands Irrigation

Project (Project). Adjustments are made

to the Project efficiency requirements,

maximum allowable diversion

calculations, and Lahontan Reservoir

storage targets in the 1988 OCAP to

reflect current irrigated acreage, court

decrees which have lowered the water

duty applicable to certain Project lands,

and other factors affecting water

demand. To better manage diversions

from the Truckee River to the Project,

the rule provides flexibility to adjust the

water supply in response to Project

demand, flexibility in using snowpack

and runoff forecasts, and extends the

time frame for storing water in Truckee

River reservoirs in lieu of diversions to

the Project from the Truckee River.

DATES: Effective December 16, 1997.

FOR FURTHER INFORMATION CONTACT:

Dave Overvold, Acting Area Manager,

Lahontan Area Office, Bureau of

Reclamation, P.O. Box 640, Carson City,

NV 89702, telephone (702) 882–3436; or

Jeffrey Zippin, Team Leader, TruckeeCarson Coordination Office, 5665

Morgan Mill Road, Carson City, NV

89701, telephone (702) 887–0640.

Copies of Adjusted OCAP regulations

may be obtained from either office.

SUPPLEMENTARY INFORMATION:

Background

On April 15, 1988, the Secretary of

the Interior (Secretary) implemented

new Operating Criteria and Procedures

(OCAP) governing management of water

diverted to and used within the

Newlands Project. These 1988 OCAP

were approved by the U.S. District Court

for the District of Nevada, subject to a

hearing on objections raised by various

parties. In 1990, Congress directed in

the Truckee-Carson-Pyramid Lake Water

Rights Settlement Act (Title II of Pub. L.

101–618, Section 209 (j) (104 Stat. 3294)

that the 1988 OCAP remain in effect at

least until December 31, 1997, unless

changed by the Secretary in his sole

discretion. Prior to the proposed rule,

the 1988 OCAP had not been published

in the Federal Register.

These 1988 OCAP were designed to

increase the reliance of the Project on

water from the Carson River, minimize

the use of water from the Truckee River

as a supplemental supply, increase

efficiency of water use in the Project,

and establish a regulatory scheme to

manage deliveries to Project water users

including incentives for efficiency and

penalties for inefficiency.

An environmental impact statement

(EIS) was prepared for the 1988 OCAP.

That EIS served as the basis for

reviewing the environmental effects of

these adjustments. The Department of

the Interior (DOI) has prepared an

environmental assessment on the

adjustments which tiers off of the

analysis in that EIS. Copies of the

environmental assessment may be

obtained from the Truckee-Carson

Coordination Office.

The Department is making a number

of revisions to the 1988 OCAP to adjust

for changes in use of water rights, to

increase flexibility, and to clarify the

language of the OCAP based on

experience gained in administering the

1988 OCAP through nine irrigation

seasons. These revisions are within the

basic framework of the 1988 OCAP and

its environmental documentation and

are being published for codification.

The need for additional changes to the

1988 OCAP beyond those in this rule

may be appropriate as well, but

consideration of such changes is

expected to require further examination

including the preparation of an EIS.

Description of the 1988 OCAP

The 1988 OCAP provisions were

preceded by a preamble which is

equally applicable to the Adjusted

OCAP. The 1988 OCAP preamble is

reproduced with minor grammatical

editing. The following 1988 OCAP

Preamble is taken from the 1988 OCAP:

1988 OCAP Preamble

The development of Operating Criteria and

Procedures for the Newlands Project in

western Nevada was initiated in the late

1960’s and has proven to be a divisive,

contentious issue for the people in Nevada

who rely on the waters of the Carson and

Truckee Rivers. Competition for the water in

the Project’s desert environment is intense

and growing. The conflicts among uses are

clearly apparent in the effects forecast on

various areas where the DOI has program

responsibilities. The issue is complicated

further by the requirements of the

Endangered Species Act and the listing of the

Cui-ui, a fish inhabiting the lower Truckee

River and Pyramid Lake.

In order to proceed effectively and fairly,

the DOI had to have guiding principles for

the OCAP. These are to:

—Provide water deliveries sufficient to meet

the water right entitlements of Project

water users;

—Meet the requirements of the Endangered

Species Act as they specifically relate to

the Truckee River/Pyramid Lake Cui-ui;

—Fulfill Federal trust responsibilities to the

Pyramid Lake Paiute Indian Tribe and the

Fallon Paiute-Shoshone Tribes;

—Conserve wetland and wildlife values in

both the Truckee and Carson River basins;

—Give cognizance to the State laws affecting

water rights and uses;

—Provide for stable economies and improve

quality of life in the region to the extent

it is influenced by the DOI-managed

resources and facilities;

—Allow local control and initiative to the

maximum extent possible; and

—Provide stability and predictability through

straightforward operation based on actual

versus forecast conditions.

The DOI believes that the proposed OCAP

best satisfy these principles within the limits

of the Department’s legal authority. Each of

the competing uses for the water is critical

in its own right. They are all essentially

separable for decision making purposes even

though they clearly impact upon each other

since the available supply is far less than the

demand.

The OCAP deal with the operation and use

of Federal facilities related to the Newlands

Project. Therefore, their primary

responsibility is supplying the water rights to

the Project water users. To the extent this can

be done effectively and efficiently, then the

remaining water supply is available for other

competing uses. The secondary impacts of

the OCAP must, however, act to support or

encourage results which benefit the other

competing uses.

The basic structure of the OCAP relies on

both rules and incentives which we believe

will ensure reasonable, efficient water

management through reliance on local

control and initiatives. The direct

consequences of the OCAP will be delivery

of full water entitlements within the

Newlands Project, protection of endangered

species, fulfillment of trust responsibilities,

and encouragement for the protection of

other environmental and quality of life

values.

Adjusted OCAP Proposed Changes

The Notice of Proposed Rulemaking

for the Adjusted OCAP, published in the

Federal Register, 61 FR 64832,

December 9, 1996, proposed a number

of changes to the 1988 OCAP based, in

part, on a comparison of the

assumptions in the 1988 OCAP about

the size of the Project and patterns of

water use with Project size in 1995 and

new patterns of water use. Specifically,

the changes are:

• Acreage: The anticipated increase

in acreage has not materialized; actual

irrigated acreage in 1995 was 59,075

acres. This amount reflects efforts of the

Bureau of Reclamation (BOR) to limit

irrigation to water-righted lands and

that, on average, irrigators have not
Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations 66443

increased the acreage of lands in

production. In the Notice of Proposed

Rulemaking for Adjusted OCAP, the

1995 preliminary estimate of irrigated

acreage for that year was shown in the

text as 59,023. However, modeling was

based on 59,075 irrigated acres. In this

final rule, both the text, tables, and

modeling consistently use 59,075

irrigated acres for 1995. When this rule

becomes effective, the provisions of

section 418.22 will be used to adjust

Lahontan Reservoir storage targets to

reflect the current water demand.

• Average Water Duty: The average

water duty for the project has been

reduced as a result of the so-called

‘‘bench/bottom’’ litigation (1995 Order

of Judge McKibben, in U.S. v. Alpine,

United States District Court for the

District of Nevada No. D–185). This

bench/bottom court ruling approved a

change in the designation of some

Project lands from bench lands to

bottom lands. Bench lands have a

maximum water duty of 4.5 acre-feet/

acre; bottom lands have a maximum

water duty of 3.5 acre-feet/acre. (The

Project includes pasture lands with a

duty of 1.5 acre-feet/acre.) The bench/

bottom decision reclassified

approximately 9,000 acres of irrigated

lands in the project, reducing Project

water entitlements by approximately

9,000 acre-feet. The change in demand

is expected to be approximately 5,000

acre-feet of water when measured at the

farm headgates. This is based on historic

use of about 90 percent of the headgate

entitlement at 4.5 acre-feet/acre versus

projected use of 100 percent of the 3.5

acre-feet/acre entitlement.

• Average Use of Entitlement: Actual

water use as a percentage of entitlement

is usually less than 100 percent,

historically about 90 percent. The

reduced percentage of entitlement use

results from on-farm practices and

efficiencies, fallowing of lands, and

varying weather conditions. The current

projected percent use of entitlement is

93.4 percent. This is based on irrigation

use of 91.8 percent and 95 percent for

Carson and Truckee Divisions,

respectively, and 100 percent water use

for pasture lands and wetlands. Several

factors will affect use of entitlement in

the future:

—Irrigators whose lands were

reclassified from bench lands with a

water duty of 4.5 acre-feet per acre to

bottom lands with a 3.5 acre-feet per

acre duty may use more than 90

percent of their entitlement.

—The Fallon Paiute-Shoshone Tribes

reservation is within the Project and

the Tribes have a cap on the water

they receive. The Tribes are expected

to use their full water entitlement

under the cap every irrigation season.

—The Naval Air Station Fallon, as part

of an agreement with the U.S. Fish

and Wildlife Service (FWS), will use

less of its irrigation water and is also

developing less water intensive

cropping strategies, decreasing

percent use of entitlement.

—The FWS and the State of Nevada are

acquiring water rights within the

Newlands Project for restoration of

wetlands at Stillwater National

Wildlife Refuge. The FWS has been

transferring the consumptive use

portion, 2.99 acre-feet per acre, of the

water rights they acquire. This

changes their effective entitlement to

2.99 acre-feet per acre of which they

are expected to take 100 percent, thus

increasing percent use of entitlement.

These and other changes in water use

will cause the percent use of entitlement

to vary from year to year. The percent

use will be determined based on actual

experience and will be used in

calculating the expected irrigation

diversion for each irrigation season.

• Efficiency: Within the same size

project, more irrigated acreage results in

greater efficiency; with less irrigated

acreage lower efficiencies are expected.

Project irrigated acreage never reached

the level anticipated in the 1988 OCAP

but the associated target efficiencies

have remained in effect. As water rights

are acquired for Stillwater Wildlife

Refuge (Pub. L. 101–618, section 206),

the effect on Project efficiencies may

vary at first, but as more water is

acquired and moves to the Refuge,

efficiencies should improve stemming

from the concentration of deliveries

through the system.

This rule addresses only those

adjustments to the 1988 OCAP in the

following areas:

1. Target Efficiency Adjustments

(§§ 418.12 (c)(3), 418.13 (a), and

Newlands Project Water Budget table):

The 1988 OCAP envisioned and allowed

for increasing irrigated acreage,

assuming the Project would grow to

over 64,850 irrigated acres by 1992

compared to a base of approximately

60,900 acres being irrigated in 1987. The

annual calculations of the Maximum

Allowable Diversion (MAD) to the

Project and efficiency requirements

currently in use are based on a Project

consisting of 64,850 or more irrigated

acres and a commensurate target

efficiency of 68.4 percent. However, the

acreage increase has not materialized

and the 1995 irrigated acreage was

approximately 59,075 acres. The Project

conveyance efficiency that can be

achieved, which is the relationship

between the total annual diversion to

the Project and total delivery to farm

headgates, is directly related to irrigated

acreage; efficiency generally decreases

as the irrigated acreage in the Project

decreases. The 1988 OCAP does not

accurately reflect the current acreage,

and as a consequence, the higher

efficiency requirement remains in effect.

This may decrease the water available to

the Project as calculated in the MAD

and increases the likelihood of penalties

for inefficiency.

In response to less irrigated acreage

and varying water demand, the DOI will

calculate the annual Project water

budget for each irrigation season in

accordance with the elements in the

Newlands Project Water Budget table of

the Adjusted OCAP. Each year the MAD

will be based on the projected irrigated

acreage for that year and applicable

water duties. The other elements in

Newlands Project Water Budget,

including appropriate Project efficiency

at 100 percent use, would be calculated

to determine the MAD and Project

efficiencies for each year. Only the first

10 lines of the water budget would be

calculated before the irrigation season to

determine the MAD, then the remaining

lines would be calculated after the

irrigation season to determine target

efficiency. Through this approach, the

Project water budget can accommodate

anticipated changes in Project

characteristics.

Using the 1995 Actual Acres column

from the Newlands Project Water

Budget, Maximum Headgate Entitlement

(line 2) is the product of Irrigated Acres

(line 1) and the average water duty

(calculated annually). Variable

distribution system losses of Canals/

Laterals Evaporation (line 3), Canals/

Laterals Seepage (line 5), and

Operational Losses (line 7) are

extrapolated to determine the Total

Losses (line 8) for a given Project size.

The combined Maximum Headgate

Entitlement (line 2) and the Total Losses

(line 8) determines the MAD (line 9),

and the relationship of Maximum

Headgate Entitlement (line 2) to Total

Losses (line 8) estimates Project

Efficiencies at 100 percent water use

(line 10). Actual use of entitlement,

based on historic patterns, is less than

100 percent (not all irrigators take all of

their entitlement each year), so the

Maximum Headgate Entitlement is

adjusted by the projected percent use of

entitlement (calculated annually) to

yield Expected Headgate Entitlement

Unused (line 11) and the Diversion

Reduction for Unused Water (line 12).

The Diversion Reduction for Unused

Water (line 12) is subtracted from the

MAD (line 9) to determine Expected
66444 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations

Irrigation Diversions (line 13). Finally,

the adjusted Project demand (calculated

from line 2 minus line 11) is divided by

the Expected Irrigation Diversions (line

13) to determine the Expected Efficiency

(line 14).

The effect of this is to have the

Adjusted OCAP more accurately reflect

the Project water demand. Reducing the

annual Project efficiency target will

recognize the limitation of the present

water distribution system facilities and

assist the Project in achieving efficiency

requirements. No changes are proposed

for the 1988 OCAP relative to how the

MAD is calculated and administered,

determination of eligible land,

reporting, or calculation of credits or

debits.

2. Adjustments to Lahontan Reservoir

Storage Targets (§§ 418.20, 418.21, and

418.22, and tables of Monthly Values for

Lahontan Storage Computations, End of

Month Storage Targets for July Through

December, and Adjustments to

Lahontan Reservoir Storage Targets):

The 1988 OCAP prescribes when water

may be diverted from the Truckee River

to supplement Carson River inflow to

Lahontan Reservoir to serve the Carson

Division of the Project. (The Truckee

Division of the Project is supplied

entirely by water from the Truckee

River.) The Truckee River diversion to

the Carson Division is governed by endof-month storage target levels in

Lahontan Reservoir. Water is diverted

from the Truckee to the Reservoir only

if it is forecast that the storage target will

not be met by Carson River inflow by

the end of the month. In years of low

flow on the Carson River, a greater

percentage of the Carson Division

Project water supply is diverted from

the Truckee River. In wet years, the

Carson Division supply may come

entirely from the Carson River. Thus,

storage targets are used to help maintain

a steady water supply despite the

natural climatic variability and

differences in annual runoff between the

two river basins.

The formula used to determine how

much water may be diverted to

Lahontan Reservoir from the Truckee

River in January through June relies, in

part, on the runoff forecast for the

Carson River. The imprecision inherent

in such forecasting can lead to variable

consequences. Sometimes more Truckee

River water is diverted than is needed

to serve Project water users. This is

particularly problematic when the

Carson River fills Lahontan Reservoir to

the point that water spills over

Lahontan Dam or so that a

precautionary spill (release) of water

must be made to avoid later flooding. In

either situation, spilled water that

cannot be transported to water-righted

lands or Lahontan Valley wetlands

flows into Carson Sink in the desert.

This situation occurred most recently in

1995, 1996, and 1997 with the

consequence that Truckee River water

that could have flowed into Pyramid

Lake contributed to water that was

spilled.

Because of their imprecision, forecasts

for Carson River runoff do not always

reflect actual conditions and the water

may not materialize. If not enough water

was brought over from the Truckee

River earlier in the water year, or

Truckee River flow is insufficient to

make up for the shortfall from the

Carson River, then the water supply

may be inadequate to meet the annual

irrigation demand. This situation

occurred in 1994 when the Carson River

was forecast to have a 100 percent water

year but only produced a 50 percent

water supply.

Two of the objectives of OCAP are to

minimize spills and moderate shortages.

It is important to note that for the 95

years of records, the climatic/hydrologic

variability of both rivers is so great that

even if there were no limits on the

diversion of Truckee River water, in

some years shortages would result.

Conversely, even if no Truckee River

water were diverted, in some years

Lahontan Reservoir would spill just

from Carson River inflow.

The 1988 OCAP has a June end-ofmonth storage target of 215,000 acre-feet

in Lahontan Reservoir. The 215,000

acre-feet would serve at least 4,000 to

5,000 more acres of water-righted and

irrigated land than has been irrigated in

actual practice. The reclassification of

some bench lands to bottom lands

further reduces water demand in the

Carson Division. The difference in

headgate demand between what the

1988 OCAP projected and current

Carson Division demand is

approximately 21,000 acre-feet. The

current storage targets permit

unnecessary diversions from the

Truckee River to the Project. The

proposed Adjusted OCAP storage targets

were based on the lower Carson

Division demand and reducing water

loss to seepage, evaporation, and spill.

Accordingly, the proposed end-of-June

storage target was adjusted to 174,000

acre-feet, and the July through

December targets were lowered as

shown in Table A. However, in this

final rule, the end-of-June storage target

is 190,000 acre-feet, as shown in the

table Monthly Values for Lahontan

Storage Calculations (section 418.20 of

the rule), while the January–May targets

are retained, subject to the adjustment

procedures described below. July and

August end-of-month storage targets are

also increased to help maintain

recreation levels in Lahontan Reservoir.

This is discussed in the Response to

Comments, II.7., in this preamble.

A comparison of the 1988 OCAP, the

proposed Adjusted OCAP, and the final

Adjusted OCAP storage targets for

Lahontan Reservoir are shown in Table

A of this preamble. In addition, this

final Adjusted OCAP, in response to

comments, adopts a flexible storage

target regime that can respond to future

changes in Project water demand. This

is discussed in the Response to

Comments, II.1, in this preamble and set

out in section 418.22 of the rule. The

new storage targets will be used to

calculate diversions from the Truckee

River in accordance with section 418.20

et seq. of the proposed rule.

BILLING CODE 4310–RK–P
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BILLING CODE 4310–RK–C
66446 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations

The storage targets were developed

using the Truckee River settlement

negotiations water balance model. The

model was used to examine how

different storage targets affected spills,

inflow to Pyramid Lake, and other

parameters. Key assumptions used in

modeling were reduced Project water

demand from the 1988 OCAP, lower

efficiency targets, current Truckee River

operations, and Project shortages

consistent with the 1988 OCAP. The

model uses the 95-year (1901–1995)

historic hydrologic record for the

Truckee and Carson Rivers.

For the proposed Adjusted OCAP, a

series of modeled storage targets was

evaluated based on the degree to which

a set of targets reduced spills, increased

inflow to Pyramid Lake, increased the

estimated number of spawning years for

cui-ui, increased the estimated number

of cui-ui, reduced Lahontan Reservoir

and Truckee Canal seepage and

evaporation losses, and held frequency

and magnitude of Project shortages

consistent with the 1988 OCAP. These

goals are consistent with the Secretary

of the Interior’s responsibilities as the

District Court ruled in Pyramid Lake

Paiute Tribe of Indians v. Rogers C.B.

Morton (Tribe v. Morton), 354 F. Supp.

252 (D.D.C. 1973).

Though not a specific feature of the

Adjusted 1988 OCAP, the modeling

used in making decisions on this

proposed rule took cognizance of the

4,000 acre-foot minimum pool that the

Truckee-Carson Irrigation District

(TCID), the Project operator, voluntarily

has maintained in Lahontan Reservoir to

protect fish resources there. Though this

action to maintain a minimum pool is

purely voluntary on the part of TCID

and Newlands Project water right

holders, it provides environmental

benefits, was assumed to be continued

into the future, and was credited in the

modeling used to establish new

Lahontan storage targets; that is to say,

the targets would have been somewhat

lower to achieve the same release

shortage percentage and Truckee River

inflow volume to Lahontan Reservoir

assuming no anticipation of the 4,000

acre-foot minimum pool.

Table A presents the model results

examined in developing the Adjusted

OCAP, and the values are averages for

the 95-year period of record. Modeled

results for the 1988 OCAP with current

hydrology are compared to the Current

Conditions, the proposed Adjusted

OCAP, and the final Adjusted OCAP. In

a number of categories, the modeled

results show improvements under the

final Adjusted OCAP storage targets as

compared with the 1988 OCAP. For

example, there is less Truckee Canal

loss (line 3), less Lahontan Reservoir

loss (line 12), and less Lahontan

Reservoir spill (line 14). Compared to

the Current Conditions, the final

Adjusted OCAP is an improvement in

all areas except for Project water supply

(line 18) and the additional shortage

year (line 19). The modeled reduction of

water loss and spill from the Project

increases inflow to Pyramid Lake under

the final Adjusted OCAP (line 23).

Compared to the Current Conditions,

approximately 19,800 acre-feet of water

is modeled to be saved from the Truckee

River under the Final Adjusted OCAP

from reduced Truckee Canal loss,

reduced Lahontan Reservoir loss, and

reduced spills. Of this 19,800 acre-feet

of Truckee River water saved,

approximately 2,550 acre-feet of the

water saved reduces Project water

supply compared to Current Conditions.

3. Truckee River Storage in Lieu of

Diversions (§ 418.20 (f)): Project

diversions from the Truckee River may

be fine-tuned by retaining water in

upper Truckee River reservoirs that

would otherwise have been diverted to

Lahontan Reservoir to meet storage

targets. Depending upon how much

Carson River runoff reaches Lahontan

Reservoir and whether storage targets

are met by the Carson River inflow, the

water retained in storage may be

released later in that year and diverted

to Lahontan Reservoir for delivery to the

Carson Division, or retained for Pyramid

Lake if the water is not needed for

Carson Division irrigation.

Under the 1988 OCAP, water was

allowed to be stored upstream on the

Truckee River in lieu of diversion only

from April to June. In 1995, this

limitation contributed to approximately

80,000 acre-feet of water being diverted

from the Truckee River to Lahontan

Reservoir before March 31, then spilling

because of high Carson River runoff.

None of the Truckee River water was

needed because the Carson River more

than filled Lahontan Reservoir and

precautionary releases were made to

avoid spilling over the dam. While the

80,000 acre-foot-diversion from the

Truckee was controversial, it resulted

from managing the diversion in strict

adherence with the 1988 OCAP targets.

In the 1996 and 1997 water years,

respectively, 6,000 and 22,000 acre-feet

were diverted from the Truckee River in

late fall and winter, and again spilled.

It is possible that a similar occurrence

may result in the 1998 water year from

continued application of the 1988 OCAP

storage targets. The proposed Adjusted

OCAP provided more flexibility to

reduce such unnecessary diversions.

Consistent with managing Project

diversions from the Truckee River, the

proposed Adjusted OCAP expanded the

opportunity to credit store water for the

Project in reservoirs on the upper

Truckee River by allowing storage as

early as January of each year. In this

final Adjusted OCAP, Truckee River

storage would be allowed as early as

November of the previous year. The

water would be credited based on water

actually retained in Truckee River

reservoirs or, if water was not being

released for Project diversion, credited

as Newlands Project water in Stampede

Reservoir adverse to other water (fish

water) stored in Stampede Reservoir. In

the latter situation, concurrence by the

FWS will be required. For example, a

reduction of diversions in January

through March of 1995, would have

required FWS approval to create

Newlands Project credit water out of

Stampede Reservoir water because

water was not being released for Project

diversion. Newlands Project credit

water could be released for diversion to

Lahontan Reservoir, if needed, as early

as July 1 through the end of the

irrigation season, but not thereafter. The

water would only be used for the Carson

Division. Water in storage could be

exchanged to other reservoirs but it will

not carry over to the next year for use

in the Project. If it is not used in the year

in which it is stored, it will not be

available thereafter to the project. To

protect the water users, the water held

in storage on the Truckee River would

not be reduced by evaporation and

would be gaged at the US Geological

Survey gage on the Truckee Canal near

Wadsworth, Nevada, to ensure that

diversion to the Project matches the

diversion foregone earlier in the season.

Water could spill, but if spilled, it

would be subject to diversion to

Lahontan when needed to meet storage

targets. Water stored but not needed for

the Project would be managed to benefit

cui-ui and Lahontan cutthroat trout in

Pyramid Lake.

This change provides flexibility to

reduce excessive diversions from the

Truckee River. The BOR is expected to

use this proposed provision only in

years when Carson River runoff is

forecast to be above average and is

intended to fine tune diversions and

avoid over-diversions from the Truckee

River. Such storage in Stampede

Reservoir or other Truckee River

Reservoirs is not intended to make up

for shortages in drier years.

There is little advantage to foregoing

diversions in below average runoff years

if the likelihood is that all the credit

stored water would need to be diverted

to the Project in any event. The changes

in Section 418.20 (f) of the rule include

provisions for BOR to consult with
Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations 66447

TCID, the Federal Water Master, FWS,

Bureau of Indian Affairs (BIA), and the

Pyramid Lake Paiute Tribe before any

credit storing is initiated.

4. Expanded Forecasting (section

418.20 (a)): In calculating the January to

June monthly diversions from the

Truckee River, the 1988 OCAP uses the

monthly forecast for April through July

runoff published by the Natural

Resources Conservation Service (NRCS)

(formerly the Soil Conservation

Service). Rather than continuing to rely

on that forecast alone, the proposed

Adjusted OCAP provided flexibility to

examine other forecasts and allow the

use of a deliberative process to

determine how to manage Truckee River

diversions. This provision remains

unchanged in this final Adjusted OCAP.

The intent of this change is to allow the

BOR to take advantage of other forecasts

and the experience and knowledge of

the Federal Water Master, the TCID

water master, and other parties. The

desired effect of this change is to

improve precision in forecasting and

managing the Truckee River diversion to

the Project to avoid spills and shortages.

5. Additional Revisions: In addition to

the changes identified in 1. through 4.

above, a number of minor revisions have

been made to the 1988 OCAP. Most

changes are editorial and do not affect

the meaning of the text. Some changes

provide opportunities for consultation

with interested and affected parties

before BOR makes a decision.

A few changes add language to clarify

or interpret the meaning of the 1988

OCAP in light of experience

administering the OCAP, passage of

time, or new statutory provisions.

Changes to the text of the 1988 OCAP

occur at:

Section 418.2: Other Project purposes

are added in accordance with Pub. L.

101–618, 104 Stat. 3289, § 209 (a) (1).

Section 418.13 (a) (3): Explains the

use of efficiencies in calculating the

MAD.

Section 418.18 (b): Calculates

terminal flow in the Truckee Canal by

averaging flows during the time when

water is not being diverted to Lahontan

Reservoir.

Section 418.24: Water captured in

Project facilities from a spill or

precautionary drawdown is used to

make deliveries to eligible lands but

does not count as a Project diversion or

as Lahontan Reservoir storage.

Section 418.29: Deletes the reference

to the February 14, 1984, Contract for

Operation and Maintenance between the

United States and the District.

Section 418.37 (d): Adds new text

clarifying that a natural drought greater

than or equal to the debit will eliminate

the debit.

Section 418.38 (b): Allows TCID to

divert up to the MAD if needed to meet

headgate entitlements.

Rulemaking Process

The DOI announced in 1995 that it

intended to revise the 1988 OCAP

through adjustments to that OCAP. In

the summer of 1995 the TCCO held four

public workshops in Fernley, Nevada to

invite affected and interested parties to

offer their thoughts on changes to the

1988 OCAP affecting storage targets,

conveyance efficiency, storage in lieu of

diversions, and the use of runoff

forecast data.

The Notice of Proposed Rulemaking

on the Adjusted OCAP was published

December 9, 1996, with the 60-day

comment period scheduled to close on

February 7, 1997. As a result of being

preoccupied with the worst floods in

decades on both the Carson and Truckee

Rivers in January 1997, the DOI received

many requests for an extension of the

comment period. By notice in the

Federal Register on February 18, 1997,

the comment period was extended an

additional 60 days until April 8, 1997.

The Notice extending the comment

period also included frequently asked

questions and answers regarding the

Adjusted OCAP, and made known the

availability of general and detailed

modeling results related to the

rulemaking.

During the initial comment period,

the TCCO conducted an information

briefing for the State of Nevada, TCID,

Fallon Tribe, and Pyramid Lake Tribe.

Two public workshops to explain and

answer questions about the proposed

rule were held in Fallon and Fernley,

Nevada. The TCCO received 47 written

comments on the proposed rule.

Comments addressed the proposed rule

and are responded to in this preamble.

Many comments addressed the draft

environmental assessment (EA), which

had been made available for review, and

have been responded to with changes in

the EA. Two commenters submitted

pleadings in litigation on the 1988

OCAP which were not addressed in this

final rule because they were already

addressed in the United States’

responsive pleadings in that case.

Changes Made in This Final Rule

In response to comments and

additional information, the DOI has

made several changes in this final

Adjusted OCAP rule. The proposed

change in Lahontan Reservoir storage

targets received more comments than

any other issue in the proposed rule.

This final Adjusted OCAP addresses

two storage target issues raised in

comments: future increases or decreases

in Project water demand, and effects of

lower storage targets on recreation. In

this final rule, a system of demand

responsive storage targets is

implemented to provide a stable water

supply to the Project over a range of

water demands that may result from

changes in irrigated acres, use of

entitlements, or other circumstances. In

addition, summer storage targets have

been increased to help maintain

recreation levels at Lahontan Reservoir,

without substantial effect on Pyramid

Lake inflow or threatened and

endangered fish recovery. This also

provides a slight benefit to Project water

supply. These changes are described in

sections II.1. and II.7. of the Response to

Comments in this preamble and sections

418.20, 418.21, and 418.22 of the rule.

The Adjusted OCAP proposal to

extend the period for storage of Truckee

River water in lieu of diversions back to

January each year has been changed in

the final rule by extending it back to

include November and December.

November and December targets

increase significantly to take advantage

of winter flows in the Truckee River

when the water will clearly be needed

in the Project. Adding storage in lieu of

diversions in November and December

will help avoid a repeat of the situation

that developed in late 1996 and early

1997 when all reservoir storage levels

were up yet diversions from the Truckee

River to the Project continued through

the end of December, only to begin

spilling as a precautionary release from

Lahontan Reservoir on January 1, 1997.

The final rule also allows Newlands

credit water spilled from Truckee River

reservoirs to be diverted to Lahontan

Reservoir subject to applicable storage

targets. These changes are described in

sections II.5 of the Response to

Comments in this preamble and section

418.20(f) of the rule.

The proposed Adjusted OCAP

lowered the Project conveyance

efficiency target based on increases in

the percent use of entitlements and

decreases in the Project size. The intent

was for the conveyance efficiency target

to be dynamic and continue to vary with

the use of entitlements and the Project

size. However, Figure 1, the graph in

Appendix A at the end of the proposed

rule, showed target efficiencies varying

only in proportion to percent use of

entitlement. This has been replaced in

the rule at section 418.13(a)(4) and by

the table Expected Project Distribution

System Efficiency that shows required

efficiency for a range of irrigated acreage

and a range of percent use of

entitlement. The table also provides the
66448 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations

slope and y-intercept so that a new

graph may be prepared. Appendix A in

this final rule has a table Calculation of

Efficiency Equation which shows how

the Expected Project Distribution

System Efficiency is calculated using a

range of percent use of entitlement from

100 percent to 75 percent.

The proposed Adjusted OCAP made

several corrective adjustments to the

1988 OCAP to have the Adjusted OCAP

reflect actual Project operations. One of

these affected how water released into

Rock Dam Ditch was counted. Rock

Dam Ditch may receive water directly

from releases at Lahontan Reservoir, or

may get water directly from the Truckee

Canal via a siphon pipe under the

stilling basin below Lahontan Dam. In

the proposed Adjusted OCAP rule,

diversions directly from the Truckee

Canal would have counted against the

Truckee Division. As was noted in

comments, this is incorrect, as the water

that reaches Rock Dam Ditch would, in

all cases, come from water in Lahontan

Reservoir or destined to arrive in

Lahontan Reservoir. This change is

noted at section III.1 of the preamble

and in the rule at section 418.23.

Modeling used to compare various

OCAP scenarios and storage target

regimes has been updated since the

proposed rule was published. The new

modeling retains the Project acreage and

water use assumptions from the

proposed rule but is modeled over the

95-year period 1901–1995, it also

includes the additional hydrology for

1995, and does not include storage in

Lahontan Reservoir on the flash boards

above 295,500 acre-feet.

Based on technical comments from

the BOR, which will administer this

rule, the language in section 418.13(a)

has been revised to clarify the timing

and procedures for recalculating the

Project water budget, the MAD, and the

required conveyance efficiency. At the

start of the irrigation season, a

provisional water budget and MAD will

be recalculated. After the irrigation

season when actual irrigated acres and

percent use of headgate entitlement is

known, a final target conveyance

efficiency will be determined from the

table Expected Project Distribution

System Efficiency.

This final rule has been revised to

conform to numbering and plain

language requirements for publication of

the Adjusted OCAP rule in the Code of

Federal Regulations. Some extraneous

introductory text has been removed or

incorporated into the preamble.

Throughout the text of the rule, ‘‘must’’

or other appropriate wording replaces

‘‘shall’’ and references to ‘‘these OCAP’’

has been replaced by ‘‘this part.’’

Additional text has been changed only

to clarify the meaning. The new format

includes a section on definitions and

has moved a few sections forward as

General Provisions of Adjusted OCAP.

Also, the rule has been divided into

more sections, each dealing more

discretely with each subject. With these

exceptions, the text of this rule appears

in the same order as in the Notice of

Proposed Rulemaking and can be easily

compared.

Need for Immediate Effect

This adjusted OCAP rule is effective

December 16, 1997, to allow its

provisions to address imminent

diversions of water from the Truckee

River to Lahontan Reservoir. Under the

Administrative Procedure Act, sec.

553(d)(3), a rule may have immediate

effect when the agency finds that there

is good cause for waiving the normal 30-

day period between publication of the

rule and its effective date. This waiver

of the normal 30-day waiting period for

this rule to become effective is critical

for the Secretary to meet all obligations

in the Truckee River basin. A 30-day

delay in implementation will

compromise the effectiveness of the

Adjusted OCAP by allowing

unnecessary diversions of more than

14,000 acre-feet of water from the

Truckee River.

Delayed implementation of the rule

would be contrary to the public interest.

The Adjusted OCAP more accurately

limits Truckee River diversions to only

that amount of water that the water

users in the Project require. In the past

three years, the 1988 OCAP storage

targets have allowed Truckee River

diversions of about 80,000 acre-feet,

6,000 acre-feet, and 22,000 acre-feet of

water that was not needed to satisfy

diversionary rights and which

ultimately was spilled during required

precautionary drawdowns of Lahontan

Reservoir increasing the danger of

flooding in the Carson River valley.

Immediate implementation will not

harm those affected by the rule because

there will be sufficient water available

to serve water rights during the 1998

irrigation season. Lahontan Reservoir

storage levels in November resulted in

diversions of nearly 10,400 acre-feet of

Truckee River water under the existing

1988 OCAP storage targets. Projections

for December 16–31, 1997, indicate that

an additional 14,000 acre-feet of water

might need to be diverted from the

Truckee River to meet 1988 OCAP

storage targets. Under the Adjusted

OCAP storage targets in this rule, no

water would have been diverted in

November or would need to be diverted

in December. Moreover, the November

and December diversions are not needed

to serve Project water rights. The

160,000 acre-feet already in Lahontan

Reservoir, less evaporation and seepage,

along with the water that would be

available if needed from the Truckee

River based on current water storage in

Truckee River reservoirs, indicates that

there will be sufficient water to meet

Project requirements for the 1998

irrigation season. Therefore, immediate

implementation is necessary to prevent

the waste of at least 14,000 acre-feet of

water that will be diverted from the

Truckee River in December if the

Adjusted OCAP is not in effect. If the

rule were not in effect until January 16,

1998, additional water would be

diverted that will not be needed.

In addition, immediate

implementation will benefit Pyramid

Lake by maintaining needed Truckee

River flows with no attendant harm to

Project water users, because the

Adjusted OCAP does not affect decreed

water rights. Conversely, diversions at

Derby Dam in December pursuant to the

existing 1988 OCAP storage targets

would significantly decrease Truckee

River flows to the detriment of Lahontan

Cutthroat Trout, which is a threatened

species under the Endangered Species

Act.

A 30-day delay in implementation

would result in an irretrievable

commitment of at least 14,000 acre-feet

of water from the Truckee River to

Lahontan Reservoir. Immediate

implementation of the Adjusted OCAP

will allow better management of the

Project, and will avoid potential threats

to public health and safety due to the

increased risk under the 1988 OCAP of

flooding those downstream of Lahontan

Reservoir.

The main reason for a 30-day waiting

period prior to implementation is to

provide affected parties with an

opportunity to adjust their actions. The

need for this is obviated by the fact that

the Adjusted OCAP are an outgrowth of

the 1988 OCAP. They are designed to

fine tune the 1988 OCAP, not to replace

them with an entirely new regulatory

scheme. The revisions fall within the

basic framework of the 1988 OCAP, a

regulatory system that the affected

parties have been operating under for

nine years. Further, the Adjusted OCAP

have been in circulation for many

months, and all affected entities have

had ample opportunity to participate in

workshops on the proposed rule and to

comment.

The affected parties have participated

in the development of the Adjusted

OCAP and are aware of the content of

the rule as well as the approximate time

it would be implemented. In spring
Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations 66449

1997, the DOI extended the period for

comment on the proposed rule for 60

days to accomodate interested parties

who had been preoccupied by flooding

during the original comment period.

This 60-day delay should not be

allowed to compromise the rationale

underlying the Adjusted OCAP’s

development. The potential for harm to

the public outweighs any possible

prejudice to the affected parties.

Therefore, the Department finds that

there is good cause for the Adjusted

OCAP to be effective on December 16,

1997.

Response to Comments on Proposed

Rule

The proposed rulemaking provided a

60-day public comment period which

was later extended another 60 days to

end on April 8, 1997. The TruckeeCarson Coordination Office (TCCO)

received 46 letters from commenters

during the comment period. One

additional commenter submitted late

comments that TCCO received on April

9, 1997, and accepted for review, for a

total of 47 comments. Fifteen comments

were from an irrigation district, twelve

from interested parties, seven from local

governments, six from organizations or

public interest groups, three from

Nevada State agencies, two from Tribes,

one from a public utility, and one from

a Federal agency.

We reviewed and analyzed all

comments, and in some instances

revised the final rule based on these

comments. The following is a

discussion of the comments received

and our response. First, we addressed

general comments and concerns.

Second, we responded to specific

comments referred to by regulation

section.

I. General Concerns

1. Why Propose These Changes? Some

commenters asked what the purpose

and need was for making adjustments to

the 1988 OCAP. One commenter asked

when the continued encroachment on

water rights by successive OCAP’s will

end. Other commenters said that the

proposed Adjusted OCAP rule does not

meet the goals stated in the 1988 OCAP

regarding service of water entitlements,

conservation of wetlands and wildlife,

Trust obligations to the Fallon PaiuteShoshone Tribes (FPST), stable

economies, and stability of operations.

Other commenters argued that the

diversion and subsequent spill of more

than 100,000 acre-feet of Truckee River

water in the past three seasons points to

the need to adjust the 1988 OCAP to

avoid a recurrence of such diversions

and spills. Finally, one commenter

suggested that instead of having an

OCAP, that a discussion process be used

to determine the need for fall or winter

diversions from the Truckee River.

Response: As explained in the

preamble to the proposed Adjusted

OCAP rule published in December 1996,

the primary purpose of this rule is to

adjust the OCAP to reflect the fact that

demand for water to meet Newlands

Project water rights is less than

projected at the time the 1988 OCAP

were adopted and the OCAP can be

adjusted to better reflect new water

demand assumptions which will

increase Newlands Project reliance on

the Carson River as the primary source

of water for the Carson Division. Other

adjustments are made to provide

flexibility in operations to help conserve

water based on experience gained in the

past nine years. The changes in this rule

are designed to reduce diversions from

the Truckee River in such a way that

approximately 87 percent of the

reduction comes from reduced Truckee

Canal loss, reduced reservoir loss, and

reduced spills. For the reasons

explained above under the heading,

‘‘Adjusted OCAP Proposed Changes,’’

demand for water to serve water rights

has been less than anticipated in the

1988 decision which means that more

water is being diverted from the Truckee

River under the 1988 OCAP than is

necessary to serve Newlands Project

water rights. This is inconsistent with

the Secretary’s trust responsibility as

spelled out in the Gesell decision in

Tribe v. Morton to ensure that only the

water needed to serve Project water

rights is diverted from the Truckee River

and away from Pyramid Lake. As such,

this is not an encroachment on

Newlands Project water rights, but a

limited refinement of diversion criteria

to assure that Project water rights are

met but with maximum reliance on the

Carson River.

This final OCAP rule is consistent

with the 1988 OCAP goals. Water

entitlements in the Newlands Project are

served subject to such regulations or

requirements as the Secretary may

impose. This final rule is the Secretary’s

OCAP regulation for the Project,

provides for the full service of water

rights so long as the water is available,

meets the OCAP goal of satisfying

entitlements, and therefore, fulfills the

Alpine and Orr Ditch decrees. The

Adjusted OCAP is not expected to

interfere with efforts to restore Lahontan

Valley wetlands and wildlife resources

because the proposed Adjusted OCAP

was considered in the decision making

process for the FWS Water Rights

Acquisition Program (WRAP) EIS and it

is being considered as the FWS

develops its comprehensive

management plan for Stillwater

National Wildlife Refuge. The DOI is

negotiating an agreement with the FPST

on a number of issues including

maintaining the Tribe’s irrigation water

supply. This agreement with the FPST

is expected to help ensure that the DOI

will meet its trust responsibilities to the

Tribe under the Adjusted OCAP.

The Adjusted OCAP decreases

slightly— from 98.41 percent to 97.48

percent—the average water supply in

the Carson Division of the Project and

would have an effect on farm

production, profits, and income in

drought years (see response to I–12).

However, the modeled average water

supply under Adjusted OCAP is similar

to the modeled supply in the 1988

OCAP EIS assumptions under current

conditions (1988 OCAP in Table A),

therefore the economic stability of the

Project is not expected to change

compared to 1988 OCAP projected

conditions. Finally, the Adjusted OCAP

rule does not impose new operational

requirements and is, therefore,

consistent with the goal of stability in

operations.

This Adjusted OCAP addresses the

comment regarding the need to manage

early season diversions of Truckee River

water to Lahontan Reservoir to avoid

subsequent spills. We believe the

proposed storage target regime in the

rule will minimize, but cannot

eliminate, the possibility of Truckee

River diversions being spilled later. We

believe, further, that we cannot legally

abandon OCAP in favor of a discussion

process as the basis for controlling

Truckee River diversions.

2. Why Change the OCAP Now? A

number of commenters questioned why

the DOI is changing the OCAP at this

time. They cite the December 31, 1997,

expiration of the prohibition on

litigation on the 1988 OCAP in Section

209 of the Truckee-Carson-Pyramid

Lake Water Rights Settlement Act (Pub.

L. 101–618), the absence of any court

order for a new OCAP, and question

why the DOI was moving ‘‘swiftly’’ on

Adjusted OCAP in light of numerous

concerns. Some commenters questioned

the timing and need for the Adjusted

OCAP in light of the DOI’s announced

plans to develop a revised, long-term

OCAP. Other commenters asked to have

the Adjusted OCAP rule in effect by

October 1, 1997, to avoid potentially

unnecessary diversions from the

Truckee River.

Response: Section 209 of Pub. L. 101–

618 allows the Secretary to decide, in

his sole discretion, that changes to the

OCAP are necessary to comply with his

obligations. No court order is needed to
66450 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations

make these changes. The experience of

initially seven and now nine years

implementing the 1988 OCAP indicates

that a number of changes could be made

to save additional diversions of Truckee

River water within the framework of the

1988 OCAP. The timing of this

rulemaking relative to December 31,

1997, is coincidental since the

rulemaking started in 1995. The DOI

announced its intent to develop an

interim or Adjusted OCAP in March

1995, held public planning workshops

on Adjusted OCAP in August 1995,

published a proposed rule in December

1996, held public workshops on the

proposed rule in December 1996 and

January 1997, and extended the

comment period by 60 days in February

1997. We believe this history reflects the

ample opportunities for public input

and the deliberative pace of rulemaking

to allow due consideration of issues.

The DOI’s intention to develop a

revised OCAP was also announced in

March 1995. Unlike the Adjusted OCAP

which makes some changes in the 1988

OCAP as an interim correction, the

revised OCAP contemplates more

fundamental changes to OCAP, will take

a number of years to develop, and will

be the subject of an EIS that also

considers other related water

management issues. The fact that the

DOI conducted EIS scoping meetings for

this EIS during the comment period on

the Adjusted OCAP is more a reflection

on the lengthy EIS process than on the

DOI’s intent to rush into the next OCAP

before this rulemaking is concluded.

As to when the rule will go into effect,

it had been the DOI’s hope to have the

Adjusted OCAP in effect prior to when

Truckee River diversions might have

begun under the current OCAP storage

targets.

3. What is the legal authority for

changing OCAP and for making OCAP

a regulation? A number of commenters

questioned the DOI’s authority and the

legal basis to make changes to the 1988

OCAP and to do so via rulemaking. One

commenter made the point that this

rulemaking will ‘‘grandfather’’ the 1988

OCAP which never was published in

the Federal Register, never underwent

notice and comment rulemaking, and

which has not undergone judicial

review. Another commenter asked if the

Secretary had the approval of the

Pyramid Lake Paiute Tribe (PLPT) to

change OCAP.

Response: The Secretary of the

Interior is authorized to promulgate

regulations for the operation of

irrigation projects under the

Reclamation Act of 1902, as amended.

Promulgation of the Adjusted OCAP

rules replaces the existing 1967 OCAP

regulations and a number of court

approved OCAPs. Promulgation of

Adjusted OCAP affords the public a

formal opportunity to participate and

have their concerns considered in the

rulemaking process.

The Adjusted OCAP is based on the

1988 OCAP framework with changes in

efficiency requirements, storage targets,

upstream storage, and forecasting. It is

correct that the 1988 OCAP was not

published in the Federal Register, was

not included in the Code of Federal

Regulations, and has not gone

completely through judicial review.

However, Congress, through Pub. L.

101–618, directed the 1988 OCAP to

remain in effect until changed by the

Secretary, at his sole discretion, and to

be barred from judicial review until

December 31, 1997. The public law also

declared valid all actions taken by the

Secretary under any OCAP prior to that

law, including implementation of the

1988 OCAP, and not subject to judicial

review.

Newlands Project OCAP may be

implemented through approval by the

Tribe versus Morton court, or with the

approval of the PLPT. The DOI believes

it has received the approval of the PLPT

through the Tribe’s comments on the

proposed Adjusted OCAP rule.

4. Adjusted OCAP Violates Water

Rights under the Alpine and Orr Ditch

Decrees: A number of commenters

contend that the Adjusted OCAP

reduces the water supply to the

Newlands Project, and that any

reduction in water supply affects water

rights in violation of Nevada water law.

These commenters also view this as a

violation of water rights adjudicated

under the Orr Ditch and Alpine decrees.

Several commenters cite the court’s

decision in Tribe v. Morton which said

that OCAPs should not alter the Orr

Ditch or Alpine decrees.

Response: Under Nevada water law,

water rights holders are entitled to a

certain water duty per acre which

represents the maximum amount of

irrigation water that can be beneficially

used on water righted lands. This water

duty is neither a minimum amount of

the entitlement that must be received,

nor is it a guarantee that that amount of

water will always be available. As the

Carson and Truckee Rivers’ runoff

varies from year to year, so too does the

water supply, resulting in full years

serving up to the water duty, and in

drought years where the available water

supply serves less than the water duty.

As shown in Table A, line 19, under

final Adjusted OCAP there is an

additional shortage year compared to

the current condition. The additional

shortage year results from reduced carry

over storage of Truckee River water in

Lahontan Reservoir. Under Judge

Gesell’s decision in Tribe v. Morton, the

Truckee River water left in Lahontan

Reservoir at the end of the irrigation

season is water that was not needed to

serve water rights, and the Project is not

entitled to this water.

Nothing in the Adjusted OCAP

changes anyone’s water right or affects

the Orr Ditch or Alpine decrees. What

OCAP does is determine under what

conditions Truckee River water may be

diverted to Lahontan Reservoir to

supplement the water supply from the

Carson River for purposes of serving

such rights that year. That combined

supply in Lahontan Reservoir is the

water supply available to meet the water

demand in the Carson Division in a

given year. Our modeling analysis of the

Adjusted OCAP, which considers the

hydrologic record for the Carson and

Truckee Rivers from 1901 to 1995,

indicates that in more than 9 out of 10

years Lahontan Reservoir has enough

water to fully satisfy the Carson

Division demand, with an average water

supply of more than 97 percent of

demand. This combined use of Carson

and Truckee River ensures a more

secure and consistent water supply for

the Carson Division than most other

Alpine decree water rights holders

experience on the Carson River.

5. The Adjusted OCAP Affects

Property Rights: Commenters have

expressed concern that Adjusted OCAP

may cause shortages that are a taking of

property rights. A State Agency believes

that any action by the Federal

government that results in water rights

holders not receiving their legal

entitlement of water is a taking of

personal property. Also, because the

State Agency is a holder of water rights

in the Newlands Project, it says that

Adjusted OCAP may devalue its water

right holdings when they receive less

water than is available in the system.

Other commenters say this is stealing

water or a taking without just

compensation.

Response: Newlands Project irrigators

do indeed have a property right in their

water rights, as do other water rights

holders in Nevada. However, as pointed

out in the response to issue number 4,

the Adjusted OCAP has no effect on

water rights or on the Alpine and Orr

Ditch decrees. In addition, these water

rights are not an entitlement to a certain

amount of water every year, but rather

an entitlement to receive up to a certain

amount of water, when that water is

available. In drought years, water may

not be available to serve all

entitlements. Thus, the water that

reaches and is retained in Lahontan
Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations 66451

Reservoir constitutes the available water

for Newlands Project irrigators in the

Carson Division. Further, these water

rights are subject to applicable laws,

rules, and judicial decrees. The supply

of water in Lahontan Reservoir, out of

which Carson Division water rights are

served, is subject at least to the

segmentation and priority provisions of

the Alpine decree for the Carson River,

and to the Floriston flow rate and

priority provisions of the Orr Ditch

decree for the Truckee River. Under

Pub. L. 101–618 and Tribe v. Morton,

OCAP may not affect the decrees; it

merely provides that the deliveries be

limited to those actually needed to serve

water rights. As such, this is not a taking

of a constitutionally protected property

right by the Adjusted OCAP.

6. The Adjusted OCAP Denies Carry

Over Storage Rights: Carry over storage

refers to the ability to store in a reservoir

water that is not needed in one year for

use in the next year, if needed. Five

commenters believe the Adjusted

OCAP, as well as the 1988 OCAP

currently in place, take away carry over

rights in Lahontan Reservoir by limiting

the diversion of Truckee River water.

They contend the diminution of carry

over storage under Adjusted OCAP

erodes the principle of storing in times

of plenty for times of drought. Further,

one commenter contends that carry over

storage is a right that was given to

irrigators when they traded their preProject vested water rights to the

Federal government for water rights in

Lahontan Reservoir. In contrast, one

commenter felt that the proposed endof-month storage target for October of

52,000 acre-feet was too high because it

could allow carry over of Truckee River

water diverted right at the end of the

irrigation season.

The Adjusted OCAP provides for

storage of Truckee River water in

Stampede Reservoir in lieu of diversions

to Lahontan. One commenter asked why

the Adjusted OCAP would not allow

carry over storage of Newlands Project

water in Stampede Reservoir.

Response: All water remaining in

Lahontan Reservoir at the end of the

irrigation season does carry over to the

next year and this is not changed by the

Adjusted OCAP. The Project water users

benefit from carry over storage of all the

Carson River water that remains in

Lahontan Reservoir and provides

protection against future droughts.

However, to the extent that any portion

of the water remaining in Lahontan

Reservoir is water that had been

diverted from the Truckee River, such

water is, by definition, water that was

not needed to serve Project water rights.

It is the presence of this Truckee River

water in Lahontan Reservoir at the end

of the irrigation season that Adjusted

OCAP seeks to minimize because it

conflicts with the court’s basic

requirement of OCAP: that the

Newlands Project receive only the

Truckee River water needed to serve

water rights so that the Secretary’s trust

responsibility to the PLPT may be

fulfilled. Likewise, for Newlands Project

water stored in Truckee River reservoirs,

any water left over at the end of the

season is water that was not needed to

serve Project water rights and, therefore,

should go to Pyramid Lake.

The goal of OCAP is to divert just that

amount of Truckee River water needed

to serve water rights in the Project and

to let the rest continue to Pyramid Lake.

The ideal OCAP would be based on

demand and only allow diversions of

Truckee River water to Lahontan

Reservoir when it was actually needed

for the Carson Division, and then, in

quantities sufficient to always meet the

water demand. This would ensure

serving all water rights all the time with

no over-diversions of water and no

Truckee River water spilled from

Lahontan Reservoir. Unfortunately, our

analysis indicates that such a ‘‘demand

only’’ OCAP would not serve water

rights because of the variability in the

amount of water available for diversion

from the Truckee River from month to

month, and because of the capacity

limits of the Truckee Canal.

Instead of a demand-only OCAP, the

Adjusted OCAP rule continues to allow

diversions of Truckee River water to

Lahontan Reservoir, even at times when

the water is not immediately needed to

serve water rights at the time of

diversion, as a safeguard for a water

supply later in the year against the

unpredictability of the runoff from the

Carson River. This is why the Adjusted

OCAP includes a storage target greater

than zero for October. The modeling

analysis of the Adjusted OCAP indicates

that it provides a water supply for the

Newlands Project consistent with the

water supply evaluated in the 1988

OCAP, even though the supply is less

than under current (i.e., 1997)

conditions.

7. There was Inadequate Information

Provided to Evaluate the Proposed Rule:

Eight commenters raised questions and

concerns about the amount of

information made available by the DOI

in support of the Notice of Proposed

Rulemaking. These concerns centered

on modeling evaluations of the

proposed Adjusted OCAP and

alternative OCAP scenarios that had

been considered. Some commenters

believe that due process is being

‘‘trampled’’ or that modeling results

were skewed because all of the

information in the government’s

possession was not made public. Others

questioned how the proposed rule could

be evaluated without foundational data

and assumptions. Yet another

commenter chided DOI for

manipulating data to achieve a

predetermined result. Specific questions

were posed regarding the need for a

modeling scenario that allowed

Lahontan Reservoir to fill without

storage target limits and another

modeling scenario for current

conditions.

Response: In developing the Adjusted

OCAP rulemaking, the DOI evaluated

five OCAP alternatives based on

different storage target regimes. These

were modeled and compared with

modeled scenarios for current

conditions and for the 1988 OCAP with

1988 time frame assumptions and 1994

time frame assumptions. In all, nine

modeling runs were examined. The

printout from each modeling run is

approximately 400 pages long. To

facilitate comparisons of the modeling

runs a single summary table labeled

Table 9 was prepared listing 9 input

assumptions and 53 key output

parameters for each run. The DOI did

not model a ‘‘full reservoir’’ scenario

because it would not be consistent with

the decision in Tribe v. Morton and

would serve no practical purpose.

In response to requests for

information on modeling runs

considered by the DOI, Table 9 was

made available to all parties. In

response to requests for more detailed

information, we also provided copies of

the full 400-page proposed rule

modeling run and a 36-page document

of 94 years of modeled monthly output

for 29 parameters. Table 9 was made

available at three public workshops on

the proposed rule and the availability of

the remaining materials was announced

in a Federal Register notice dated

February 18, 1997, extending the

comment period on the proposed rule

by 60 days. The DOI believes that the

modeling information provided was

specific to the proposed rule and

sufficient, when used in conjunction

with the Notice of Proposed

Rulemaking, to allow the public to

evaluate and comment on the proposed

rule.

8. OCAP Modeling: Many questions

and comments were received regarding

the Truckee River operations model

used in developing the Adjusted OCAP.

Commenters noted concerns both with

the model itself and with DOI’s use of

the modeled data. One commenter

noted that DOI is relying on a long

string of assumptions in using the
66452 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations

model, and that the model cannot be

used to determine the water supply for

decreed rights. Another believes the

operations model to be a product of

collusion between the United States, the

Pyramid Lake Paiute Tribe of Indians,

and Sierra Pacific Power Company.

Several commenters wanted to know

if and how the operations model had

been calibrated or verified. There were

also questions about the reliability of

the model’s estimates of parameters like

seepage and evaporation, sensitivity to

various parameters, and about the

uncertainty these parameters create in

the modeled output. One commenter

asked if the model was available for

review.

Another series of comments

questioned why ‘‘real data’’ were not

used and the model generates certain

input data for missing stream gauges or

extrapolates reservoir operations for

time periods when the reservoirs were

not in existence. Commenters also

questioned why the model examines a

94 year time period instead of the last

30 years, especially when early stream

gauges were not accurate.

Commenters also addressed the

modeling results. Several noted that the

modeled results do not match what

actually occurred in some years and

asked if DOI would monitor the actual

Project hydrology, and if DOI would

change the OCAP if it did not match

what actually happens. Modeling was

also thought by some to underestimate

or to cover the actual effects of shortages

that result from not achieving high

efficiency requirements. One

commenter suggested that the model

does not show the economic effect of

lower Lahontan Reservoir storage on

hydropower generation, and does not

account for the effect of upstream

storage in lieu of diversions to the

Project. Some recommended identifying

shortages, or using the first year of a

drought instead of listing average

shortages because averages do not show

the one in ten year event.

Response: The Truckee River

operations model, a monthly river and

reservoir operations accounting model,

was developed by the BOR and has been

added to and upgraded by contractors

and BOR staff. The model is in the

public domain and has been used as an

analytical tool in a number of

negotiations in western Nevada and has

been accepted by parties to these

negotiations as the best modeling

program available for evaluating various

Truckee River and Newlands Project

operating scenarios. Over the years,

various versions of the model have been

made available to many organizations to

use independently, including Sierra

Pacific Power Company, the Pyramid

Lake Paiute Tribe, TCID, and the States

of Nevada and California.

Critics of the model point out that it

does not use ‘‘real’’ data and its results

do not replicate the historic record. The

reason is that the model uses historic

hydrology of the Truckee and Carson

Rivers starting with 1901, but has to

extrapolate to fill data gaps from the

early 1900’s. Also, the Truckee River

operations and hydrology are modified

in the model to assume that all the

reservoirs and operations in place today

have been in place since 1901, which is

not this case. This allows the model to

keep a single accounting book of

reservoir records rather than having a

new set of accounting books added to

the program when each new reservoir

was built. Thus, modeled output reflects

operating the rivers with today’s

reservoirs and physical features in place

using 94 or 95 years of hydrology.

Though suggestions have been made to

use a shorter time period such as 30

years of hydrology, we believe the

longer time period is a more robust data

base.

The model has undergone reviews by

a number of modeling peers and users

of the model and has been evaluated for

sensitivity to certain parameters. Its

input parameters for terms like seepage

and evaporation are based on field tests

and observations. Because the model

has been widely accepted for use as a

comparative tool for examining different

water management scenarios, it has not

been calibrated for or verified against

any particular year or period of record.

The model uses historic hydrology, so

it cannot be used predictively, and by

standardizing physical features, it

cannot be used to create an accurate

hindcast. However, standardizing the

river and reservoir operations allows

users to look prospectively at what

might happen in the future if the range

of hydrology of the past is

representative of what might happen in

the future.

By holding the physical features and

hydrology constant, the DOI uses the

model to examine, compare, and

contrast different operations scenarios.

The modeling is only used for

comparative purposes and not to suggest

a specific future condition will exist.

Operations under the Adjusted OCAP

will be monitored, but not for the

purpose of comparing the day to day

operations in the Project with modeled

results. As one commenter noted,

upstream storage in lieu of diversions to

Lahontan is not accounted for in the

model. Upstream storage is intended to

refine the Truckee River diversion so

that there is no inadvertent over

diversion. Because the model does

account for forecasting errors and so

allows occasional over diversion, it may

overestimate the water supply in years

when upstream storage might be used.

Also, the model does not consider the

effects of lower reservoir levels on

hydropower production; this is

considered in the environmental

assessment for the Adjusted OCAP

rulemaking.

The DOI has examined and

considered the severity of drought years

besides looking only at average water

supplies. Table B shows the modeled

water supply for drought years in four

modeled scenarios: 1988 OCAP

assumptions with current hydrology;

the Current Conditions, Proposed

Adjusted OCAP, and Final Adjusted

OCAP. The Project water supply under

Final Adjusted OCAP is comparable to,

though slightly better than, what was

modeled for the 1988 OCAP with the

demand assumptions for 1992, however

it is less than the Current Condition

water supply. In the nine driest years,

Final Adjusted OCAP is better than

what the Project is modeled to

experience under the 1988 OCAP, but

worse than Current Conditions by

27,000 acre-feet on average for those

nine years. The additional shortage is

the result of reduced carry over of

Truckee River in Lahontan Reservoir at

the start of each year under Adjusted

OCAP.

BILLING CODE 4310–RK–P
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BILLING CODE 4310–RK–C
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9. OCAP Development and

Alternatives Selection: When it was first

announced in March 1995 that the DOI

would be making adjustments to the

1988 OCAP, then Assistant Secretary for

Water and Science Betsy Rieke made a

commitment to the TCID and Newlands

Water Protective Association (NWPA)

that they would be consulted about

changes the DOI was considering before

any decisions were made. Several

commenters have argued that the

government did not fulfill this

commitment, while others have asked

for a new proposed rule to be developed

in cooperation with all parties. One

commenter objected to the rulemaking

process because they were not invited to

a briefing on the proposed rule after the

Federal Register notice was published.

Another commenter asked if the State of

Nevada had been informed about the

proposed rule. One commenter viewed

the proposed rulemaking as a ‘‘take it or

leave it’’ ultimatum without

consideration of reasonable alternatives,

and suggested that a new proposal

should be developed in cooperation

with other parties. Two commenters

believe the attorney for the PLPT had

‘‘inside knowledge’’ of the proposed

rule and that TCID and NWPA were

excluded from participation while the

PLPT and DOI developed the rule.

Another cited DOI’s alleged fiduciary

responsibility to water right owners that

the DOI must fulfill. Yet another

commenter supported the proposed rule

but thought that DOI should have

selected an alternative that provided

more benefits to Pyramid Lake. A State

agency recommended delaying the rule

for more complete environmental and

economic evaluations and to await

completion of negotiations between

TCID and PLPT. Commenters also

suggested that the DOI take notice of the

draft Truckee-Carson River Basin Study

for the Western Water Policy Review

Advisory Commission.

Response: The rulemaking was

conducted in accordance with

Administrative Procedure Act

requirements, which included notice

published in the Federal Register and

an opportunity for comment by all

interested parties, as detailed in the

Rulemaking Process section of the

preamble. In addition, certain parties

were advised early in 1995 that before

a decision was made, they would have

an opportunity to review changes DOI

was considering making to the 1988

OCAP. The DOI honored this by

meeting with TCID, NWPA, PLPT,

FPST, the State of Nevada, and other

parties to brief them on the content of

the proposed rule after it was published

in the Federal Register. For interested

parties that did not attend this briefing,

the same presentation was made later at

two public workshops on the proposed

rule.

The view that the Adjusted OCAP is

a ‘‘take it or leave it’’ proposal without

considering alternatives presumes that

the proposed rule was a negotiating

position. It was not. The DOI has been

unsuccessful in several multiparty

efforts to negotiate an OCAP settlement

for the Newlands Project. The most

recent effort, outside of current ‘‘out of

court’’ discussions to settle pending

litigation, was a facilitated negotiation

that ended in March 1995, after which

the DOI announced its intention to

proceed with changes to the 1988

OCAP. In developing the Adjusted

OCAP rule, the DOI has examined a

wide range of alternatives, including

those that were presented during the

facilitated negotiations. The DOI held

four well-attended public workshops in

August and September 1995 to discuss

possible changes to the 1988 OCAP and

afford the public early input to

developing the Adjusted OCAP. With

the exception of these public

workshops, no outside parties

participated in DOI’s development of

the Notice of Proposed Rulemaking. As

well, to our knowledge, no outside party

has participated or been privy to

development of this Notice of Final

Rulemaking.

The DOI has reviewed and takes

notice of the draft Western Water Policy

Review Advisory Commission report.

The DOI selection of Alternative D for

the proposed Adjusted OCAP and as the

basis for the final Adjusted OCAP is

primarily based on the mix of water

savings and water supply impacts this

alternative provides. The obligation

owed to the water rights holders in the

Newlands Project is a contractual

obligation, not a fiduciary obligation. In

evaluating OCAP alternatives, the DOI

must seek to satisfy its contractual

obligation to serve water rights, and to

meet its Trust responsibility to the

PLPT. Also, the DOI has completed both

environmental and economic analyses

in promulgating this rule.

10. Relationship of OCAP to the

Truckee River Operating Agreement:

Three commenters raise concerns

regarding ongoing Truckee River

Operating Agreement (TROA)

negotiations which address, in part,

storage in Truckee River reservoirs.

Their concerns fall into three areas.

First, that absent the TROA, the DOI has

no authority to implement the upstream

storage provisions necessary for storage

in lieu of diversions, and therefore the

Adjusted OCAP cannot precede TROA.

Second, that until the TROA is

completed there is no way for the DOI

to evaluate opportunities for storage in

lieu of diversions or assess what impact

TROA may have on Truckee River flows

available to the Project. Third, that the

relationship of OCAP storage to other

storage under TROA is not clear, and

OCAP storage cannot adversely affect

existing storage agreements.

Response: The Adjusted OCAP rule

does not establish credit storage in lieu

of diversions; that was established in

the 1988 OCAP already in effect. This

Adjusted OCAP rule extends the time

period during which water may be

credit stored, from April–June, to

November–June, and it clarifies the

procedures for storage in lieu of

diversions. Therefore, the TROA

negotiations need to address OCAP

storage regardless of whether the 1988

OCAP is replaced by Adjusted OCAP or

not. Also, the United States already has

the authority to capture this water in

Stampede Reservoir or to credit store

the water out of fish water in Stampede

by exchange and does not need TROA

to be in place.

Modeling for the Adjusted OCAP does

not assume that the TROA is in effect

and therefore does not assess whether

the TROA would have any impact on

the Newlands Project. However, Pub. L.

101–618 mandates that the TROA must

not adversely affect water rights.

Preliminary modeling results for the

draft TROA EIS indicate that flows in

the Truckee River are affected by

increased water use over time in the

Truckee Meadows, and by effluent reuse

programs associated with the Water

Quality Settlement Agreement.

The effect of OCAP storage is unclear,

but the DOI has agreed preliminarily

that it will not credit store water in lieu

of diversions if such credit storage

would adversely impact the storage,

retention, or use of other categories of

credit water under TROA. The text of

the Adjusted OCAP in section

418.3(e)(8) has been modified to ensure

that OCAP storage does not interfere

with other storage in Truckee River

reservoirs. It should be noted that TROA

is the subject of continuing negotiations

among many parties and that its timing

and configuration are not yet known.

11. Compliance with National

Environmental Policy Act (NEPA): The

DOI received many comments on the

draft EA that accompanied publication

of the proposed Adjusted OCAP rule.

Those comments, including

recommendations for mitigation of

environmental effects, are addressed in

the final EA.

Eight commenters questioned the

DOI’s preliminary determination that
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the Adjusted OCAP is not a significant

Federal action requiring preparation of

an EIS, citing general impacts to

wildlife, wetlands, ground water, and

socio-economic effects. One commenter

suggested that because the Adjusted

OCAP violated laws related to water

rights, this must be considered a

significant impact under NEPA. Several

commenters cited the need for a

programmatic EIS to be prepared on the

Adjusted OCAP and all other actions

under Pub. L. 101–618.

Response: All comments received

regarding environmental effects have

been considered and addressed in the

EA. While the EA does discuss possible

effects on wildlife, wetlands, ground

water, and socio-economic impacts,

none of these were considered to be

significant for NEPA purposes. Further,

nothing in this Adjusted OCAP rule

causes a violation of law. Where

appropriate, mitigation measures and

their environmental benefits are

discussed in the EA.

A number of parties have advocated

that the DOI must prepare a single,

programmatic EIS on all actions under

Pub. L. 101–618, including for the

Adjusted OCAP. The DOI disagrees with

this position. This issue was the subject

of litigation brought by Churchill

County and the Town of Fallon, was

dismissed by the U.S. District Court for

Nevada, and is currently the subject of

an appeal to the United States Court of

Appeals for the Ninth Circuit.

12. Compliance with Executive

Orders: One commenter questioned

whether this rulemaking complies with

various Executive Orders that must be

considered in promulgating regulations.

This person believes the more than

120,000 acre-foot reduction in storage

targets in Lahontan Reservoir poses an

unreasonable cost on society and

triggers the need for the rule to be

reviewed by the Office of Management

and Budget (OMB) in accordance with

Executive Order (E.O.) 12866. Under

E.O. 12612 on Federalism, the

commenter questions whether the DOI

has properly evaluated the need for

Federal action and the impacts of the

Adjusted OCAP on the State of Nevada’s

sovereignty and costs or burdens on the

State. The commenter asks that DOI not

adopt the Adjusted OCAP rule until it

completes the requirements of E.O.

12606 on the Family, particularly with

respect to impacts on family earnings.

The commenter also believes the

Adjusted OCAP rulemaking does not

comply with E.O. 12988 on Civil Justice

Reform because of the likelihood that

the DOI will be sued on the rule.

Response: The cited change in

Lahontan Reservoir storage targets is

inaccurate and is not a basis for review

of the Adjusted OCAP rulemaking by

OMB. The proposed Adjusted OCAP

reduced the key January to June storage

target from the 1988 OCAP level of

215,000 acre-feet to 174,000 acre-feet, a

reduction of 41,000 acre-feet. The

reference to ‘‘more than 120,000 acrefeet’’ assumes a reduction from the

reservoir capacity of 295,000 acre-feet to

174,000 acre-feet. The changes in

storage targets only affect the trigger

points for diversion of Truckee River

water to Lahontan Reservoir. The

storage targets do not impose any limit

on the amount of Carson River water or

the total amount of water that can be

held in Lahontan Reservoir. Further, in

response to comments, the DOI has

revised the end-of-June storage target to

190,000 acre-feet, though retains the

January–May targets at 174,000 acrefeet, subject to the adjustment procedure

in section 418.22 of the rule.

The economic threshold for OMB

review under E.O. 12866 is if the

proposed rule is anticipated to have an

economic impact of $100 million or

more on a single entity or an economic

sector. The economic impact of the

Adjusted OCAP rule is based on average

changes to the water supply and its

effects on foregone production of alfalfa.

These effects would only be

experienced in drought years, the

intensity of which would determine any

actual changes in production. The

average effect is calculated to be in the

range of $561,000 to $283,000 per year,

gross, to the agricultural sector. This

estimate reflects the price of alfalfa

without subtracting production costs. A

1994 study by the University of Nevada

Cooperative Extension (Fact Sheet 94–

22, Alfalfa Production Costs for Fallon,

Nevada Area, by Wheeler and Meyer)

concluded that the per acre profit for

alfalfa was approximately $220 per acre

which places the economic impact of

the Adjusted OCAP at approximately

$160,380 based on the rule having a

water supply impact that might

otherwise have served 729 acres. Nor

does the Adjusted OCAP rule meet any

of the other criteria for significance

under E.O. 12866 regarding a serious

conflicting action with another Federal

agency, creating a budgetary impact, or

raising novel legal or policy issues.

The Adjusted OCAP makes changes to

four existing provisions of the 1988

OCAP. It neither creates any new

requirement affecting the sovereignty of

the State of Nevada, nor changes the

role of the State or its rights and

responsibilities with respect to

regulating the Newlands Irrigation

Project. The State was notified of the

DOI’s intent to proceed with the

Adjusted OCAP rulemaking in 1995,

participated in workshops on

developing the proposed rule, and was

consulted with before publication of the

proposed rule. The DOI believes the

requirements of E.O. 12612 on

Federalism have been satisfied.

The DOI has examined the impact on

family income as a result of the

Adjusted OCAP in accordance with E.O.

12606. The economic impact of the

Adjusted OCAP, which is experienced

only within the Carson Division of the

Project and only during the first year of

a drought, translates into an estimated

average economic impact on production

of between $10 and $5 per acre per year,

and an impact on profits of

approximately $2.90 per acre per year.

This cost is neither considered to have

a significant impact on family budgets,

nor expected to have any effect on any

other family criteria under E.O. 12606.

In addition, each farmer’s strategy for

managing a reduced water supply in a

drought will affect their costs of

production, which are typically $450 to

$476 per acre, and gross receipts, which

may mitigate or exacerbate the effects of

the rule. If a farmer’s net return is $220

per acre as noted, it is possible that

leasing water in a drought year would

generate more profit than alfalfa

production in a full water year.

However, none of these economic

assessments includes the costs of

replanting crops which might be

necessary following severe droughts or

leasing water. While the precise impact

to each family budget is unknown, the

DOI is cognizant of and has considered

these overall effects in this rulemaking.

The applicable standards of E.O.

12988 on Civil Justice Reform do not set

a threshold on the possibility of

litigation as a consequence of the

rulemaking. While we seek to avoid

litigation, we recognize that all

rulemaking holds the possibility of

litigation by an allegedly aggrieved

party. The DOI does not consider the

litigious and turbulent history of

Newlands Project OCAPs to be

dissuasive in pursuing its

responsibilities.

II Adjusted OCAP Issues

1. Project Acreage Base: The

adjustments to the 1988 OCAP are

based, in part, on anticipated increases

in irrigated Project acreage that did not

take place under that OCAP and some

changes that did take place. The 1988

OCAP anticipated and was based upon

the acreage in the Project increasing to

64,850 acres with an attendant headgate

entitlement of 237,485 acre-feet and a

total diversion demand of 346,985 acrefeet. Instead, the project acreage is
66456 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations

currently approximately 59,000–60,000

acres with a headgate entitlement of

approximately 206,500–210,000 acrefeet and a total diversion demand of

approximately 301,900–307,000 acrefeet. The current diversion demand

figures for the Project are the result of

a smaller acreage base than had been

anticipated in the 1988 OCAP, reduced

entitlements based on the so-called

‘‘bench/bottom’’ litigation (1995 Order

of Judge McKibben, in U.S. v. Alpine,

United States District Court for the

District of Nevada No. D–185), ongoing

water transfer litigation, a cap on water

use by the Fallon Paiute-Shoshone

Tribes, and a transfer rate of 2.99 acrefeet per acre for acquired wetland water

rights as has been transferred to date

instead of 3.5 or 4.5 acre-feet per acre.

In response to the reduced water

demand, the Adjusted OCAP changes

the Lahontan Reservoir storage targets to

provide a commensurate reduction in

water supply from the Truckee River.

The DOI has received comments from

eight parties objecting to the proposed

storage targets using a 1995 acreage base

of 59,075 water-righted, irrigated acres,

when there are nearly 73,000 acres in

the Project assessed annual charges for

operations and maintenance (O&M).

Commenters also disagree with BOR’s

determinations as to which lands are

eligible for water deliveries. They

contend that acreages and entitlements

could change as a result of rulings

favorable to irrigators in the transfer

litigation and individual readjudications

of the bench/bottom decision.

Response: The DOI agrees that the

Project water demand may change over

time. When the Notice of Proposed

Rulemaking was published, the DOI

assumed that changes affecting water

demand might not occur for some years.

It appears, now, that resolution for some

proposed water rights transfers may

occur sooner. Also, the 1995 actual

irrigated acreage figure used in

developing the Adjusted OCAP may

have been depressed following several

years of drought. The irrigated acreage

reported for 1996 and estimated for

1997 has increased somewhat. On the

other hand, additional acreage has been

acquired for wetlands use at 2.99 acrefeet per acre which would tend to

reduce water demand on the Project.

In response to these comments, the

DOI is adopting, in effect, a sliding scale

of storage targets predicated on holding

the water supply available to the Project

commensurate over a range of water

demands. The table Adjustments to

Lahontan Reservoir Storage Targets in

the rule shows targets corresponding to

water demands from 249,800 acre-feet to

290,200 acre-feet, and section 418.22

includes formulae for demands below

and above those levels. For all levels of

demand, the average annual water

supply is about 97.4 percent. As an

example of using the storage targets to

match demand, Table C shows key

modeling results for two demand levels

below the Adjusted OCAP level and two

above the Adjusted OCAP. In the four

variations, the water supply to the

individual irrigators remains at

approximately the same level consistent

with the proposed Adjusted OCAP

water supply level.

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The BOR will determine at the end of

each irrigation season what change, if

any, is to be made to the monthly

Lahontan Reservoir storage target for the

next year, starting with the November

end-of month storage target. Changes in

the storage targets shall be implemented

in whole increments of 1,000 acre-feet

as indicated on the Table. For water

demands above or below the values

shown on the table Adjustments to

Lahontan Reservoir Storage Targets, the

two formulae associated with the table

will be used to calculate the target

adjustments, but will only be

implemented in whole units of 1,000

acre-feet.

Carson Division water demand from

the previous full water year (100 percent

supply) will be the basis for changes in

storage targets. Following any water

year there will be a one-year lag in water

demand data because verification of the

irrigated acreage cannot be determined

until about March for the prior irrigation

season ending in October. For example,

the Carson Division water demand for

the 1997 irrigation season, a full water

year, will not be known until March

1998. Under this rule, any further

adjustments to storage targets could not

go into effect before November 1998.

These flexible storage targets in

Adjusted OCAP will address the

concern that the DOI has selected an

unreasonably low acreage or is relying

on an inflexible demand base for setting

Lahontan Reservoir storage targets. This

provision assures the irrigators a

consistent water supply as Project

acreage changes.

2. Changes in Storage Targets: The

Adjusted OCAP change Lahontan

Reservoir storage targets to bring the

water supply in Lahontan Reservoir in

line with the Carson Division water

demand in a manner that is consistent

with the 1988 OCAP. The DOI received

specific comments from nine parties,

some saying that this change in storage

targets will cause shortages and artificial

droughts. Some comments say the

reduced December and winter storage

targets will cause diversions to begin

later in the spring and summer when

less water is available in the Truckee

River. This will cause shortages that

will prevent water entitlements from

being satisfied or will satisfy

entitlements in normal water years but

leave less water in storage at the end of

the irrigation season creating new

droughts or worsening droughts in

future years. In turn, this will reduce

crop yields, and in drought years, more

farmland will be fallowed, requiring

larger capital investment to replant after

a drought. One commenter asked if DOI

only looked at elements that might

reduce Truckee River diversions rather

than increase them. It appears to some

that the DOI is deliberately creating

shortages in the Project water supply by

only adjusting OCAP provisions that

increase shortages, and asking the water

rights owners to bear these shortages

and the related economic effects. After

all, one asks, isn’t the goal to reduce

risks of shortages? Another commenter

said basing reduced diversions on trust

obligations is disingenuous because the

real reason is to allow growth in the

Reno and Sparks area.

Another area of stated concern in

comments is that the change in

Lahontan Reservoir storage targets is

unjustified because the percentage

reduction in storage targets exceeds the

percentage reduction in Project acreage.

One commenter asks whether DOI is

assuming a 1:1 relationship of storage

targets to water demand and whether

that same relationship applies to the

current project acreage.

Other commenters suggest that the

Adjusted OCAP storage targets are too

high and the October storage target

should be reduced to 4,000 acre-feet, the

November and December targets

reduced, and, in years of high

precipitation, the October to December

targets reduced. One suggests that the

4,000 acre-foot minimum pool in

Lahontan should be eliminated or

maintained out of water rights acquired

for that purpose, otherwise it is, in

effect, maintained out of the Truckee

River by a higher storage target.

Response: The Adjusted OCAP do not

lower storage targets for the purpose of

creating water shortages in the Project.

The purpose of lower targets is to

reduce unnecessary diversions of water

from the Truckee River. The storage

targets are calibrated to meet the

Secretary’s trust responsibility to

minimize Truckee River diversions

while satisfying the Secretary’s

contractual obligation to provide an

appropriate water supply to serve

Project water rights. Also, the benefits of

reduced Truckee River diversions

accrue to water users downstream of

Derby Dam and to Pyramid Lake. Reno

and Sparks derive no benefits from

Adjusted OCAP.

The 1988 OCAP established a set of

Lahontan Reservoir storage targets that

were expected to satisfy the existing and

increasing future water demands of the

Newlands Project. It was assumed that

the Project would grow to 64,850 acres

and be served in the Carson Division by

the 215,000-acre-foot-storage-target set

defined in the 1988 OCAP. Modeling

indicates that the 1988 OCAP with

conditions projected for 1992 would

provide approximately a 97.27 percent

water supply. However, the Project did

not attain the size envisioned. The

fortuitous consequence for the Carson

Division water users has been to have

the current acreage level and

corresponding water demand served out

of a water supply capable of serving a

larger Project. Thus, the Project today

enjoys an average water supply modeled

at 98.34 percent, but also increased

spills and other losses at the expense of

the Truckee River and Pyramid Lake.

The proposed Adjusted OCAP would

have provided an average water supply

of 97.38 percent, a reduction from

current conditions by about 2,550 acrefeet on average. This Adjusted OCAP

final rule, by increasing the end-of-June

storage target to 190,000 acre-feet,

provides a modeled average water

supply of 97.40 percent, which is

approximately the same supply the 1988

OCAP would have provided with

expected growth.

The lower Lahontan Reservoir storage

targets do reduce, as noted in

comments, the available Project water

supply, but still serve water right

entitlements for full water years in nine

out of ten years, based on the historic

hydrologic record. Lower storage targets

also result in less water remaining in the

Reservoir at the end of each season

which means that in the approximately

one year in ten when there is a drought,

there is less water carried over to

cushion the Project from the drought, as

shown in Table B. Generally, if a

drought lasts for more than one year, the

storage targets have no effect on the

Project water supply because the target

limits are never met and TCID can

continue diversions of water from the

Truckee River that may be available,

subject to higher priority Orr Ditch

water rights. Any additional shortage

resulting from Adjusted OCAP has an

economic effect, which is discussed in

I.12. of this preamble.

Regarding percentage reductions in

acreage and targets, there is not a one to

one relationship between Project

acreage and storage targets under the

Adjusted OCAP or the 1988 OCAP.

Storage target levels determine when

TCID can divert water from the Truckee

River to Lahontan Reservoir. Under the

Adjusted OCAP, during January through

May when Lahontan Reservoir storage is

forecast to be below 174,000 acre-feet at

the end of June, TCID may divert

Truckee River water to Lahontan. If the

water level in Lahontan Reservoir is

forecast to be above the storage level of

174,000 acre-feet at the end of June,

then TCID may not divert Truckee River

water to Lahontan. The 174,000-acrefoot target is not a new limit on how

much water Lahontan Reservoir may
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hold. Lahontan Reservoir can still fill to

capacity with Carson River water, as it

has done, for instance, in the past three

years.

The percentage change in Project

acreage from a projected 64,850 acres to

59,075 acres is an 8.9 percent reduction.

Acreage is directly related to water

demand and OCAP’s goal is to provide

the appropriate water supply to meet

the demand for water righted acreage in

irrigation. In the Adjusted OCAP rule,

storage targets are adjusted so that in

most years, the Project water supply in

Lahontan matches or exceeds (based

primarily on Carson River inflow) the

water demand at current acreage levels.

The corresponding percentage reduction

in average water supply from the 1988

OCAP with 1992 assumptions to the

Final Adjusted OCAP (from Table A) is

modeled to be about a 7 percent

reduction (284,020 acre-feet and

263,950 acre-feet, respectively).

Separate from the percentage reductions

in acreage and water demand, the OCAP

determines how to get enough water in

Lahontan Reservoir to satisfy the water

demand. Lahontan Reservoir receives an

average annual inflow of approximately

355,000 acre-feet of which, on average,

about 80 percent is Carson River inflow

and 20 percent Truckee River diversions

to Lahontan. Therefore, a given

percentage reduction in the storage

target for Truckee River diversions has

a much smaller percentage effect on the

total water supply in Lahontan

Reservoir. For example, a 50 percent

reduction in storage targets would still

provide, on average, about a 90 percent

supply to the Project; a 100 percent

reduction in storage targets (no Truckee

River water) would still leave an 80

percent water supply, on average.

On the issue of maintaining a 4,000

acre-foot minimum storage in Lahontan

Reservoir, that is not a provision of

OCAP, but rather appears to be an

informal agreement between TCID and

the Nevada Department of Conservation

and Natural Resources to provide some

water for fish in the Reservoir. Although

Lahontan Reservoir was designed for

irrigation water storage, Pub. L. 101–618

expands the authorized purposes of the

Newlands Project to include recreation

and fish and wildlife (Section 209 (a)),

though no water rights have been

transferred to the Reservoir for that

purpose. The DOI supports maintenance

of the recreational fishery at Lahontan

Reservoir, and by modeling the

Reservoir with a 4,000 acre-foot

minimum level, the DOI acknowledges

that this amount of water is, in effect,

unavailable for use in the Project. Also,

the minimum reservoir pool is

beneficial to dam safety and operations

because both the dam and the valves

and packing in the outlet works perform

best if kept wet instead of being subject

to frequent wetting and drying.

3. Project Conveyance Efficiency: The

Adjusted OCAP does not change the

assumptions underlying the conveyance

efficiency provision in the 1988 OCAP,

but it does reduce the conveyance

efficiency requirement based on less

Project acreage than was envisioned in

the 1988 OCAP. The basis for the new,

lower conveyance efficiency

requirement is that conveyance

efficiency generally decreases as the

irrigated acreage in the Project decreases

because conveyance losses (seepage and

evaporation) are about the same even

though deliveries to headgates decrease.

Thirteen commenters questioned why

DOI was continuing to rely on the

efficiency assumptions in the 1988

OCAP. The comments focus on a table

of 22 Potential Water Conservation

Measures for the Newlands Project first

published as Table 4 in the 1988 OCAP

and republished in a modified form in

the Adjusted OCAP proposed rule.

Commenters object to using this table

because the conservation measures,

many of which were implemented by

TCID, have not always achieved the

water savings predicted in the 1988

OCAP. Some stated that continuing to

cite these conservation measures

perpetuates in the Adjusted OCAP the

errors from the 1988 OCAP. Some feel

that DOI has not recognized the efforts

of TCID in trying to achieve the

conveyance efficiency requirements by

relying on these conservation measures.

One commenter stated that DOI had

used these conservation measures to

justify unreasonable conveyance

efficiency requirements in the 1988

OCAP, while another commenter stated

that the requirements were made

artificially high to run up Project debits.

Another commenter stated that the

conservation measures had interfered

with getting irrigation deliveries at the

optimum times for plants. Several

commenters wanted to know what other

irrigation projects the Newlands Project

had been compared to in determining

what level of conveyance efficiency was

possible.

Five commenters raised questions

about how the Adjusted OCAP

conveyance efficiency was developed,

whether DOI had considered the 1994

Report to Congress on the Newlands

Project Efficiency Study, how the lower

storage targets relate to efficiency, and if

we can be very accurate in measuring

conveyance efficiency.

Two commenters stated that the

conveyance efficiency requirement

should not be lowered because the 1994

BOR Efficiency Study shows that

efficiencies could be increased to 75

percent, and that lower efficiencies were

inconsistent with BOR policy on water

conservation.

Response: In planning the

adjustments to be made to the 1988

OCAP, the DOI identified four changes

within the scope of the 1988 OCAP:

adjustments to Lahontan Reservoir

storage targets based on current irrigated

acres, conveyance efficiency

requirements based on current irrigated

acres, extending the time period for

storage in lieu of diversions to avoid

winter over diversions, and giving BOR

flexibility in determining what

snowpack/runoff forecasts to use. The

DOI was asked to consider more

fundamental changes to the 1988 OCAP

approach to conveyance efficiency;

however, the suggested changes were far

beyond the scope of the Adjusted OCAP

analysis. The DOI has committed to a

review of conveyance efficiency

requirements and conservation

measures as part of long-term revisions

to OCAP, but not as part of Adjusted

OCAP.

The expected water savings from the

22 conservation measures identified in

Table 4 in the 1988 OCAP were based

on information available at the time.

Many of those measures were suggested

as a relatively inexpensive means to

achieve the conveyance efficiency

requirements in the 1988 OCAP. Some

of the measures in Table 4 were

expensive and some of the predicted

savings have not been achieved in

practice. Many of the 22 measures were

implemented by TCID, although not

always consistently, but the predicted

water savings were not realized in all

cases. In its 1994 Efficiency Study, the

BOR recognized the differences between

the water savings predicted in the 1988

OCAP and what had been achieved. It

also identified other measures, some at

quite low cost, that could increase

project efficiency. The Adjusted OCAP

incorporates the new information from

the 1994 Efficiency Study and updates

the table on Potential Water

Conservation Measures. However, the

1988 OCAP neither required those

specific measures from Table 4 to be

implemented nor precluded the Project

from implementing any other measures

to improve water conservation and meet

the efficiency requirement. The

conservation measures are not a means

of justifying conveyance efficiency

requirements but were suggested as a

way to achieve those requirements. Nor

are the conveyance efficiency

requirements a way to increase debits in

the Project.
66460 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations

As suggested in a comment, it is

difficult to know with precision how a

particular conservation measure

improves conveyance efficiency. One of

the problems—and one of the twentytwo conservation measure suggestions—

is the inaccuracy of measuring

deliveries to headgates. As a result of

the new Project O&M contract, TCID is

undertaking installation of water

measurement devices to improve

measurement of headgate deliveries.

The efficiency study estimates that this

will actually increase efficiency by

about 7.5 percent because the current

measurement is inaccurate and seems to

produce systematic over-diversions to

Project irrigators.

In formulating the conveyance

efficiency requirements for the 1988

OCAP, BOR compared the Newlands

Project to two other irrigation projects

concerning the conveyance efficiencies

that might be achieved. The BOR looked

at the Payette Division of the Boise

Project and the South Side Pumping

Division of the Minidoka Project, both

in Idaho. The observed conveyance

efficiency in the Payette Division is 66.3

percent and in the South Side Pumping

Division 64.4 percent. As might be

expected, the Newlands Project shares

some characteristics with these projects

and is different from them in other

ways. The 1988 OCAP considered these

to be ‘‘comparable’’ projects, but no

assessment has been made of the

validity of any comparisons.

The Adjusted OCAP reduction in the

conveyance efficiency requirement is

calculated based solely on the current

Project acreage compared with the 1988

OCAP acreage assumptions and is

unrelated to the calculation of the

Adjusted OCAP storage targets. The

conveyance efficiency requirement will

be extrapolated each year using the 1988

OCAP acreage assumptions and the

current acreage.

The DOI believes the reduced

efficiency requirement to be consistent

with other changes in the Adjusted

OCAP based on Project acreage. This

change recognizes the difficulty in

meeting the efficiency requirements

when headgate deliveries are lower. It is

not a windfall for the irrigators because

the reduced efficiency requirement still

cannot be met without physical or

operational improvements in the

Project, although there is a benefit

because it will reduce the debit the

Project may incur in certain years.

4. Effects of Other Actions on

Efficiency: One commenter noted that

various water rights acquisition

programs could result in the acquisition

and transfer out of the Newlands Project

of a significant portion of the water

rights in the Truckee Division. The

conveyance efficiency in the Truckee

Division is approximately 74 percent,

and this higher conveyance efficiency

improves the overall Project conveyance

efficiency. The commenter is concerned

that Truckee Division water rights

acquisitions will shift more of the

burden of meeting efficiency targets to

the less efficient Carson Division.

Four other commenters say that the

wetlands water rights acquisition

program managed by the FWS to acquire

water rights for Stillwater National

Wildlife Refuge will make it difficult to

achieve the required efficiencies. The

wildlife refuge is at the end of the

Project delivery system and commenters

contend delivering increasing amounts

of water to the end of the system will

reduce conveyance efficiency. Another

concern is that the pattern of water

rights acquisitions may eliminate

deliveries to some properties along a

delivery lateral and result in less

efficient water deliveries to other

remaining properties on the lateral. One

commenter disagreed with the

assumption that the water rights

acquisition program will, over time,

help to improve conveyance efficiency

in the Carson Division, and cited the

1994 BOR Efficiency Study to support

this claim .

Response: While the concern for

conveyance efficiency is legitimate, the

specific argument is questionable

considering that wasteful deliveries

occur, including one at no more than

about five percent efficiency.

The DOI continues to believe that the

pattern of purchases, predominantly in

the Stillwater and St. Clair Districts, the

areas closest to the wetlands, will

improve Project efficiencies by

concentrating deliveries through the

system. This is consistent with the 1994

BOR Efficiency Study which states that

delivery of more water to wetlands

should not affect seepage because the

canals used to deliver water to the

wetlands are generally full throughout

the irrigation season, and that the

wetted area of the canal and not flow

determines seepage.

The DOI recognizes that absent

targeted water rights acquisitions, the

FWS may buy water rights in other areas

of the Project. It is the DOI position that

if, at some appropriate point in the

future, water rights acquisitions in the

Truckee Division or the Carson Division

are shown, on the whole, to have a

demonstrable adverse effect on Project

conveyance efficiency, the calculation

of Project conveyance efficiency may be

adjusted. This would be done solely at

the discretion of the BOR and only if a

feasible technical approach can be

developed to remove the inefficient

component of the delivery system from

the calculation of conveyance

efficiency.

This should not affect the Secretary’s

carrying out his trust obligations to the

PLPT because each wetlands acquisition

reduces the demand for Truckee River

water in the Project by transferring to

the wetlands only 2.99 acre-feet of every

3.5 or 4.5 acre-feet acquired. Also, the

conveyance efficiency improvements

from concentrating deliveries to the

wetlands further reduces the demand

for Truckee River water in the Carson

Division.

5. Credit Storage in Lieu of Diversions:

The proposed Adjusted OCAP rule

extended the time period during which

water might be stored in Stampede

Reservoir on the Truckee River in lieu

of diverting that water to Lahontan

Reservoir. The 1988 OCAP allowed

storage in lieu of diversion from April

through June. The proposed rule

extended storage in lieu of diversion to

begin as early as January each year.

Six commenters raised a number of

questions, foremost seeking a better

description of when credit storage

provisions would be utilized, how much

water could be stored, when it would be

released from storage, and how it relates

to storage targets. Another question was

why DOI was using credit storage to

address unique events like high runoff

years, but not drought years. One

commenter suggested that there would

be little benefit for the Truckee River or

Pyramid Lake if credit storage is only

used in years that are full water years or

better. Some comments expressed

concern for water levels in Lahontan

Reservoir when water was being stored

in Truckee River reservoirs, and saw the

potential for less carry over storage in

Lahontan and more diversions from the

Truckee River. One commenter

questioned why unused Newlands

Project water could not be carried over

to the next year in Truckee River

reservoirs. Another commenter asked

why the credit water could only be used

in the Carson Division when the greater

need for the water might be in the

Truckee Division.

Two commenters recommended that

the credit storage in lieu of diversions

start in October to avoid excess

diversions, particularly in November

and December. One commenter

suggested that storage in lieu of

diversions should be done whenever

possible, regardless of runoff forecasts,

and that credit water only be taken to

Lahontan Reservoir after June and then

only to meet storage targets.

One commenter was concerned about

the effects of storage in Truckee River
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reservoirs and recommended that water

be stored in all Truckee River reservoirs,

not just Stampede reservoir, and that

unused portions of the credit storage

should revert to the reservoir in which

the water would have been captured.

The commenter wanted the storage

priority for OCAP credit water to be

junior to all existing categories of stored

water and junior to all future storage

under the TROA, and that it not be

stored adverse to Floriston rates without

a hydropower waiver from Sierra Pacific

Power Company. Also, they indicated

that the OCAP credit storage should be

subject to reductions by evaporation and

spills.

Response: Extending the time period

during which the credit storage

provision is applicable is intended to

fine-tune the amount of water the

Project receives from the Truckee River.

It is a way to avoid excess winter

diversions of Truckee River water that

ultimately spills from Lahontan

Reservoir, as occurred in 1995, 1996,

and 1997. The following discussion is

intended to clarify when and how the

credit storage provision (§ 418.20 (f))

will be used. In response to comments

received, and in consideration of the

experience in December 1996 when

approximately 22,000 acre-feet of water

was diverted from the Truckee River to

Lahontan Reservoir and then was

spilled in January 1997 due to high

Carson River runoff, the Adjusted OCAP

rule extends credit storage in lieu of

diversion to include November and

December. October was not included

because it is during the irrigation season

and because it is the month with the

lowest storage target—52,000 acre-feet—

so there is little risk that Truckee River

diversions to meet that target would

result in a spill. As revised, this

Adjusted OCAP rule provides the BOR

flexibility to determine, in consultation

with other parties, whether to initiate

credit storage any time from November

through June of the next year.

Under this credit storage provision,

water that otherwise would have been

released for diversion to Lahontan

Reservoir that is actually retained in

Truckee River reservoirs would be

credited as Newlands Project credit

water. Also, water that could be

diverted to Lahontan Reservoir but is

allowed to pass Derby Dam may be

credited as Newlands Project credit

water in Stampede Reservoir from the

fish water stored in Stampede Reservoir.

In the latter situation, concurrence by

the FWS, and as appropriate, the PLPT,

will be required because they control

the use of fish water, and the storage

would have to be accomplished by

exchange with water dedicated to help

restore endangered and threatened fish

at Pyramid Lake. For example, a

reduction of diversions in January

through March of 1995, would have

required FWS approval because water

was not being released for Project

diversions.

Newlands Project credit water could

be exchanged to other special categories

of water in Truckee River reservoirs

such as project water held for fish

recovery, and can be retained in storage

until the end of the irrigation season.

The number of categories available for

such exchanges is expected to increase

if the TROA currently in negotiation is

completed and entered into effect.

Newlands Project credit water that

spills may be captured and diverted to

the Project at Derby Dam if the diversion

is within the applicable OCAP storage

targets. However, Newlands Project

credit water remaining in storage at the

end of the Project irrigation season will

be managed to benefit threatened or

endangered fish in Pyramid Lake.

Newlands Project credit water may be

released for diversion to Lahontan

Reservoir, if needed, as early as July 1

through the end of the irrigation season,

but not thereafter. Credit water can be

diverted to Lahontan Reservoir only to

meet applicable storage targets during

the irrigation season. Newlands Project

credit water will not carry over to the

next year for use in the Project,

therefore, if it is not used in the year in

which it is stored, it will not be

available thereafter to the Project. To

protect the water users, the Newlands

Project credit water held in storage on

the Truckee River will not be reduced

as a result of seepage or evaporation. If

Newlands Project credit water spills

from Truckee River reservoirs it can be

diverted at Derby Dam for Lahontan

Reservoir subject to applicable storage

targets.

If the entire amount in credit storage

is needed to meet Lahontan Reservoir

storage targets, then the amount of water

released from Truckee River reservoirs

will be the amount actually captured in

storage. If the Newlands Project credit

storage is based on water that was

allowed to pass Derby Dam, then

sufficient water will be released from

credit storage to ensure that the

diversion to the Project, as measured at

the U.S. Geological Survey gauge on the

Truckee Canal near Wadsworth,

Nevada, matches the diversion foregone

earlier in the season.

The BOR is expected to apply this

provision starting in November or

December only in years when the water

levels in Lahontan Reservoir and

Truckee River Federal reservoirs are

high enough to indicate that a normal or

near normal water year would be

expected to satisfy Project water

demand. For example, there would be

no point in credit storing potential

Truckee River diversions in November

or December if Lahontan Reservoir were

nearly empty due to a drought in the

preceding irrigation season. Thereafter,

Newlands Project credit water will be

stored in lieu of diversion if the Carson

River runoff is forecast to provide a full

supply of water to Lahontan Reservoir.

The reason Newlands Project credit

storage is not allowed to carry over to

subsequent years is because, by

definition, the water left in storage at

the end of the irrigation is water that

was not needed to serve Project water

rights. In accordance with Tribe v.

Morton, the credit water remaining is

water that must flow to Pyramid Lake.

The effect of this provision on water

levels in Lahontan Reservoir will vary

from year to year, depending on the

amount and timing of the Carson River

spring runoff. The information on

storage levels in Table D does not

include any effects from storage in lieu

of diversion. If, as expected, credit

storage is exercised only during above

average water years, it may have little

effect on recreation levels in Lahontan

Reservoir. Credit storage will tend to

reduce water levels in Lahontan,

particularly in the spring and early

summer recreation seasons, but if the

credit water is needed and taken to

Lahontan later in the summer it will

increase water levels. The fine tuning

facilitated by credit storing will tend to

reduce carry over of Truckee River

water in Lahontan and this will

decrease spills.

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The Newlands Project credit water is

not intended to be used to balance the

water supply between the Truckee and

Carson Divisions of the Project. The

credit storage is created out of water that

would have gone to Lahontan Reservoir.

If the credit water is needed to meet

storage targets in Lahontan Reservoir

but it is instead diverted for use in the

Truckee Division, that leaves the

Reservoir below targets and places an

additional call on Truckee River water.

On the other hand, if diversions out of

winter and spring Truckee River water

would have met Lahontan storage

targets and summer and fall flows are

insufficient to meet current demand

there would be no bar to using a portion

of the stored water to equalize deliveries

between the two Divisions. It is

expected that this situation could occur

rarely, if at all, since the intention is to

divert sufficient water, when available,

to serve water rights and to store water

in Stampede Reservoir only when

Carson River flows are expected to meet

the Lahontan Reservoir storage target

criteria.

The priority of storage for Newlands

Project credit water in relation to other

stored water and to Sierra Pacific Power

Company’s hydropower right is

expected to be resolved in TROA

negotiations which are not yet

completed. (See also the response I.10.

on the relationship of Adjusted OCAP to

TROA.)

6. Cui-ui Fish: Measures to recover the

endangered cui-ui, a fish species unique

to Pyramid Lake, are detailed in the

1992 Cui-ui Recovery Plan prepared by

the FWS. These measures include

increasing the inflow of the Truckee

River to the Lake to first stabilize what

has been a falling lake level, then

increasing the water level in the Lake so

that the fish can eventually swim

unaided up the Truckee River to the fish

passage facility at Marble Bluff Dam

where they are passed upstream to

spawn. If the Lake level rises above

Marble Bluff Dam, the cui-ui will be

able to spawn upstream without human

assistance to get over the dam.

Three good water years and four years

of cui-ui spawning runs have

dramatically increased the population of

cui-ui in Pyramid Lake, although much

of the increased population is juvenile

fish which have yet to contribute to

spawning. Along with successful

spawning and increasing population

have come questions about how much

water the cui-ui need for recovery. Nine

commenters raised a number of issues

regarding cui-ui, the heart of which is

questioning the need for Adjusted

OCAP in light of recent increases in the

cui-ui population. The underlying

assumption is that the Adjusted OCAP’s

purpose is to obtain more water from

the Newlands Project for cui-ui

recovery. This notion was probably

reinforced by the Endangered Species

Act (ESA) consultation on the 1988

OCAP which effectively limited the

maximum allowable diversion in the

Project to 320,000 acre-feet per year to

avoid jeopardizing the continued

existence of cui-ui. One commenter

asked what the current biological

opinion shows for cui-ui at current

population levels.

One commenter asked why the 1988

OCAP was being changed when the

Recovery Plan was still under review by

the National Academy of Science. Two

commenters questioned if a water

demand for Pyramid Lake or cui-ui had

been defined or if DOI had performed a

demand study for the Newlands Project

and concluded it needed 110,000 acrefeet for cui-ui. Several commenters

believed that modeling done for

Adjusted OCAP is flawed because it

doesn’t reflect current cui-ui data on

population or lake level relationships,

and there is no information on how the

cui-ui index was formulated. These

commenters also thought too much

water might be going to Pyramid Lake

and could affect boating, the delta

wetlands, pelicans, and grazing. One

commenter questioned why getting

110,000 acre-feet of water to Pyramid

Lake for recovery of the cui-ui was the

sole responsibility for the Newlands

Project.

Response: The original litigation in

Tribe v. Morton is the basis for the

current OCAP for the Newlands Project,

and that case is based on the Secretary’s

trust responsibilities to the Pyramid

Tribe, not the Secretary’s

responsibilities under ESA to recover

cui-ui. This is not to say that cui-ui

recovery is ignored in developing

OCAP. As with any action that may

affect a species listed under the ESA,

the Secretary had to consider the effects

of the 1988 OCAP on cui-ui and consult

with the FWS which resulted in the

1988 biological opinion. We have again

consulted with the FWS on this

Adjusted OCAP and the FWS has

confirmed that the Adjusted OCAP will

not adversely affect listed species,

including the endangered cui-ui. The

recent population increase does not

alter the Secretary’s trust responsibility

to ensure that only the water needed to

serve Project water rights is diverted

from the Truckee River.

The Cui-ui Recovery Plan calls for

annual inflow to Pyramid Lake to

increase by 110,000 acre-feet, although

some of this water may be in the form

of equivalent benefits like

improvements in lower Truckee River

habitat or enhanced fish passage over

Marble Bluff Dam. This amount of water

or its equivalent is not based on a study

of how much water can or should be

taken from the Newlands Project for cuiui, but on a determination of the water

flows and Lake levels needed to ensure

the persistence of the species.

A revised provisional version of the

cui-ui model has undergone peer review

and will be submitted to the cui-ui

recovery team for their consideration of

the model and its results. The revised

model includes new information on cuiui spawning and survival developed

since the current model version was

developed. The revised model is

expected to better mirror the recent

increases in cui-ui population. Even

with the current cui-ui model, the cuiui results presented in Table A show a

marked increase in cui-ui numbers over

the proposed rule modeling because of

the inclusion of the three good

spawning years in the hydrology. Except

for the peer review of the model noted

above, we are not aware of any review

of the Cui-ui Recovery Plan by the

National Academy of Science.

The reduced diversions of Truckee

River water under Adjusted OCAP do

increase inflow to Pyramid Lake and, if

the next 95 years match the hydrology

of the last 95 years (as the model

operates), Pyramid Lake could rise as

much as 37 feet. This would inundate

some existing recreational facilities and

possibly some roads, all of which would

have to be relocated. However, this only

brings the elevation of Pyramid Lake to

approximately 3,840 feet, which is still

lower than Marble Bluff Dam and well

below the Lake level when the

Newlands Project began.

7. Impacts on Recreation: Lahontan

Reservoir is one of Nevada’s most

important recreational lakes. It is

operated as a State park recreation area

through an agreement with the BOR. A

number of comments were received

citing the effects of lower storage targets

in Lahontan Reservoir on use of the lake

for boating, fishing, swimming, and

camping. Nine commenters expressed

concerns for recreation.

Several commenters cited Nevada’s

investment of $6.5 million in facilities

at Lahontan Reservoir, and view the

Adjusted OCAP as a breach of trust of

the recreation agreement between the

State and the BOR, and further, as a

conflict with the Reclamation

Recreation Management Act of 1992

section 2802 findings.

Most impacts are related to the lower

water levels in Lahontan during summer

holidays. One commenter says the times

the July target of 150,000 acre-feet won’t
66464 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations

be met increases from 38 years to 54

years out of 94 years. Another

commenter cites a 41 percent reduction

in storage. There is also a concern that

these impacts occur at a time of rapid

growth in Nevada. One commenter says

the impact of losing 50,000 acre-feet to

Pyramid Lake is minimal compared

with the virtual destruction of

recreation at Lahontan by these changes.

One commenter suggested that the State

of Nevada should purchase and dedicate

water rights for recreation at Lahontan.

Response: Lahontan Reservoir was

constructed for the purpose of storing

water to serve the Newlands Project.

The Reservoir itself does not enjoy an

adjudicated or quantified water right.

The United States Court of Appeals for

the Ninth Circuit has opined that ‘‘The

Lahontan Reservoir, as a Project built

under the federal Reclamation Act, was

intended for the primary benefit of the

farmers who would use its waters for

irrigation, and any beneficial use of the

reservoir by way of recreation could

only be incidental to that purpose.’’

Further, the United States has an

affirmative duty pursuant to its trust

obligations to the PLPT not to divert any

more water from the Truckee River than

is needed to meet Project water rights.

Not surprisingly, the water level in

Lahontan fluctuates during the

irrigation season and from year to year,

and is not always favorable to

recreational uses. Modeling results for

the proposed Adjusted OCAP indicate

lower levels in Lahontan Reservoir

during the recreation season than are

experienced under the 1988 OCAP. In

response to comments, but taking the

Secretary’s trust responsibility into

account, the storage targets in Adjusted

OCAP have been modified from the

proposed rule as shown in Table A,

lines 33 through 40. This change in the

final rule provides a slight increase in

recreation levels in Lahontan during the

summer season.

Water levels in Lahontan Reservoir

under the Adjusted OCAP will not

cause any damage to the existing

recreation facilities developed and

constructed by the State of Nevada. The

concern is that lower water levels will

‘‘virtually destroy’’ the Reservoir as an

important recreation resource. The main

obstacle to Lahontan recreation from

lower water levels is the boating access

to the Reservoir via paved boat ramps.

The boat ramps are currently useable

down to a storage level of 120,000 acrefeet. As a mitigation measure to ensure

continued boating access to Lahontan

Reservoir, the DOI proposes to extend

the boat ramps so that there is safe

access down to a storage level of 90,000

acre-feet. With the extended boat ramps,

modeling results for Final Adjusted

OCAP shown on Table D indicate that

there should be boating access through

the Labor Day holiday about 75 percent

of the time.

Regarding the suggestion that the

State of Nevada should purchase and

dedicate water rights for Lahontan

Reservoir, this is beyond the scope of

this rule and beyond DOI jurisdiction.

However, the State has had discussions

with the DOI on doing exactly this in

conjunction with acquiring water rights

upstream of Lahontan Reservoir for

recreational and wetlands use.

8. Impacts on Wetlands: Eight

commenters were concerned that

Adjusted OCAP would adversely affect

the efforts of the FWS and the State of

Nevada to restore 25,000 acres of

wetlands in Lahontan Valley because of

reduced flows to the wetlands. Flows to

wetlands might be reduced in three

ways. First, agricultural water rights

acquired by the FWS or the State and

transferred to wetlands are subject to all

OCAP requirements and effects on the

water supply. Any increase in water

shortages for farmers is an increase in

shortages for wetlands. Second, the

lower Lahontan Reservoir storage targets

will reduce the frequency and quantity

of spills and precautionary draw-downs

from the Reservoir, a portion of which

flows to wetlands. Third, any reduction

in the water applied to farm lands

reduces the return flows to agricultural

drains, some of which carry water to the

wetlands.

Several commenters felt that Adjusted

OCAP conflicts with or invalidates the

assumptions in the Water Rights

Acquisition EIS recently published by

the FWS, because they will need to

acquire more agricultural water rights.

They did not believe it was the role of

the State or Federal water rights

acquisition programs to mitigate for

effects from Adjusted OCAP. One also

questioned if needing to mitigate for

effects on wetlands was contrary to the

1988 OCAP preamble.

Finally, one commenter asked how

the OCAP would account for any

wetland water rights acquired above

Lahontan Reservoir.

Response: Adjusted OCAP will not

cause a net loss in wetlands, however,

it will have a minor effect on how

quickly the FWS can obtain all the

water it needs for wetlands, and will

require the FWS to obtain additional

water rights. Modeling results show that

the long-term effect of Adjusted OCAP

will reduce slightly the yield from

acquired water rights for wetlands,

reduce drainflows, and reduce water

reaching the wetlands from spills. The

effect of Adjusted OCAP may be a

reduction in headgate deliveries and

drainflows by about 1,100 acre-feet. The

average reduction in spilled water may

be 4,000 acre-feet. Neither of these

effects are necessarily additive because

the average spill reduction does not

occur in the same year as droughts

which would cause delivery and

drainflow reductions. However, the

Project and the wetlands are expected to

receive a full supply of water in 9 out

of 10 years. In full water years or in

years with spills, there would be no

effect on headgate deliveries and drain

flows.

The precise amount of additional

water that may need to be acquired

cannot be determined at this time

because the modeled effects described

above do not occur simultaneously, and

there has not been enough time to

precisely assess the long-term average

acreage produced by a given water

supply. The wetlands acreage will

naturally vary because of wet years and

dry years. The TCID policy of basing a

water right owner’s share of water in a

drought year on both active and inactive

water rights will slightly augment the

amount of water the FWS might

otherwise receive for wetlands. This is

because a portion of the water rights

acquired by the FWS are inactive, and

because they are not transferring the full

water duty. Also, the amount of water

reaching wetlands during a spill or

precautionary release is variable. Most

of the water released does not reach the

wetlands because of limitations in the

system to deliver water to the wetlands.

The FWS is considering improvements

in the Project delivery capacity to the

wetlands which will help get more

water to wetlands during spills. Under

a separate action, new criteria for the

management of excess water from

precautionary releases and spills from

Lahontan Reservoir are being developed

by the BOR. These criteria will help

ensure that deliveries of excess water to

wetlands are given a high priority.

The effects of Adjusted OCAP were

considered in the FWS Water Rights

Acquisition Final EIS (pages 4–145 to 4–

147) and in its Record of Decision on

the water acquisition alternative. The

FWS acknowledged that it might have to

acquire additional water rights to make

up for any reductions. It is expected to

take the FWS some 10 to 20 years and

perhaps longer to acquire water needed

to create, on average, 25,000 acres of

wetlands. Over that time, in managing

water to have an average amount of

wetlands, it will be very difficult to

determine how much additional water

had to be acquired because of Adjusted

OCAP. In its Record of Decision, the

FWS said it would periodically reassess
Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations 66465

1Mauer, D.K., A.K. Johnson, and A.H. Welch.

1994. ‘‘Hydrology and potential effects of changes

in water use, Carson Desert agricultural area,

Churchill County, Nevada.’’ U.S. Geological Survey

Open File Report 93–463.

2U.S. Fish and Wildlife Service. 1996. ‘‘Final

environmental impact statement: Water rights

acquisition for Lahontan Valley wetlands, Churchill

County, Nevada.’’ Portland, Oregon.

3Personal communication: USGS, Water

Resources Division, Carson City, NV. 1997.

its water needs and its ability to obtain

water from all the sources under

consideration.

The State of Nevada would

experience similar effects on wetlands

water, proportional to the amount of

water rights they own, however, the

FWS must acquire the necessary water

rights to achieve the full 25,000 acres of

wetlands.

The Adjusted OCAP does not address

how to account for wetlands water

rights acquired above Lahontan

Reservoir. This may be managed on a

case-by-case basis by the DOI.

9. Impacts on Groundwater: The

Newlands Project is the principal source

of water for recharge to the shallow

aquifers in the Lahontan Valley and

Fernley areas. Both Fallon and Fernley

have municipal water supplies that rely

on groundwater. Elsewhere in the

Lahontan Valley, individual wells and

community wells provide a domestic

water supply.

Fourteen commenters have expressed

concerns about the effects of the

Adjusted OCAP on groundwater. The

source of concern is that Adjusted

OCAP will reduce the amount of water

that moves through the Truckee Canal

and that is available for use in the

Lahontan Valley. A number of

commenters said there would be

significant reductions in the recharge to

the shallow aquifer resulting in reduced

water for domestic wells, for municipal

and industrial use, and adverse effects

on water quality.

Several commenters were concerned

about recharge to the basalt aquifer from

which the City of Fallon draws its

municipal water supply, and the

secondary effects this might have on

future water supplies and economic

development in the area. One

commenter said the effects of reduced

drain flows posed qualitative risks for

humans and the environment and might

have legal implications for the Carson

River above Lahontan Reservoir and in

California.

Several commenters also were

concerned about reduced Truckee Canal

flow affecting recharge to the aquifers in

the Fernley area, and thus affecting

municipal water quantity and quality,

and having socio-economic and

environmental impacts.

Response: The recharge of

groundwater from irrigation in the

Newlands Project is incidental and there

is no water right to require recharge.

Using data from the U.S. Geological

Survey 1 (USGS), the FWS, in their

water rights acquisition EIS,2 estimates

the current average recharge in the

Lahontan Valley from irrigated

agriculture to be about 123,300 acre-feet

a year. At completion of their water

rights acquisitions, the FWS estimates

that recharge to groundwater will be

about 93,000 acre-feet per year.

The modeled change in the quantity

of water from the Truckee River

reaching Lahontan Reservoir from the

Current Condition to the Final Adjusted

OCAP in Table A is 20,200 acre-feet

(line 10). This difference in inflow is

offset because the lower targets result in

5,700 acre-feet of less reservoir loss (line

12) from evaporation and seepage. The

exact amount of loss that might go to

seepage is unclear, however, seepage is

thought to contribute only minor

amounts of water to groundwater

recharge in Lahontan Valley (Mauer, et.

al.). Of the remaining reduction, part is

accounted for by a difference of about

12,200 acre-feet per year in reduced

spills (line 14), much of which is

surface flow that goes directly to

wetlands and the Carson Sink and does

not recharge groundwater. The

remaining portion of the reduction is

2,550 acre-feet from water applied to

irrigated lands (line 17). The

combination of spills and reduction to

irrigation is 14,750 acre-feet per year,

resulting in a net annual recharge of

about 108,550 acre-feet at current rates,

and about 78,250 acre-feet after wetland

water acquisitions. This recharge rate far

exceeds the current water consumption

of about 13,000 acre-feet in the

Lahontan Valley from municipal and

domestic well sources.

Adjusted OCAP will increase

shortages during drought years as

shown in Table B. However, well

monitoring in the Lahontan Valley by

the USGS during and following the last

drought period shows that water levels

in the shallow aquifer drop during

droughts but returned to pre-drought

levels during full water years.3 The

Adjusted OCAP is modeled to provide

full water years in 9 out of 10 years.

Generally, any effect the Adjusted

OCAP might have on groundwater

levels in the shallow aquifer during

droughts would be eliminated by

subsequent full water years.

The basalt aquifer is already being

mined by the municipal water

withdrawals for the City of Fallon,

Naval Air Station, and Fallon Tribe. The

degree to which the basalt aquifer is

recharged by the shallow and

intermediate aquifers is uncertain, but is

the subject of a study by the USGS being

funded by the Navy and DOI. The study

will help define how the basalt aquifer

is recharged and its potential for

recharge from surface water supplies. If

the shallow aquifer is an important

recharge pathway for the basalt aquifer,

then in 9 out of 10 years the Adjusted

OCAP would have no effect on recharge

to the basalt aquifer. Even in drought

years and with any additional water

shortage related to the Adjusted OCAP,

the effect on groundwater levels in the

shallow aquifer is unknown and the

degree to which this affects the basalt

aquifer likewise unknown, but is not

expected to be large.

Lahontan Valley, formed under

ancient Lake Lahontan and then from

the sediments borne by the meandering

Carson River, has numerous

discontinuous, unconsolidated deposits

of sands, silts, and clays that caused

great variability in local use and quality

of groundwater. The local variability

and the small reduction in groundwater

recharge compared with natural events

like droughts makes it impossible to

identify any effects on groundwater

quality or drain water quality.

Reducing the total flow of water

through the Truckee Canal to Lahontan

Reservoir will likely reduce seepage into

groundwater in the Fernley, Hazen, and

Swingle Bench areas. The modeled

change in canal loss from the current

condition to Adjusted OCAP is about

1,900 acre-feet per year out of a current

canal and irrigation recharge of more

than 41,000 acre-feet per year of

recharge from Project irrigation. The

percent reduction in recharge that may

affect a particular community along the

Truckee Canal is not known.

10. Effects on the Fallon PaiuteShoshone Tribes: The Fallon PaiuteShoshone Tribe Reservation is located

within the Project and has Project water

rights. One commenter asked why the

protection of the Tribe’s trust interests

had been dropped from the guiding

principles in Adjusted OCAP. Another

commenter was concerned with effects

of Adjusted OCAP on the domestic

water supply of the Tribe. Two

commenters objected to the Tribe

receiving a full supply of water down to

a 56 percent water year and wanted to

know why this didn’t apply to other

water users in the Project.

Response: The reference to fulfilling

Federal trust responsibilities to the

Fallon Tribe was inadvertently deleted

from the list of guiding principles that

appeared in the proposed rule. The
66466 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations

Fallon Tribe is added to this principle

in the preamble to this Adjusted OCAP

rule.

The domestic water supply on the

Fallon Indian Reservation comes from

wells in the basalt aquifer. The

discussion on the basalt aquifer in 9.

above applies here as well.

Regarding the allocation of water to

the Tribe in a water short year, the Tribe

is treated by TCID exactly as everyone

else is in the Project. In water short

years, TCID bases water allocations on

each water users total water right

including active and inactive water

rights. The Fallon Tribe has 19,041.05

acre-feet of water rights appurtenant to

their Reservation. However, Pub. L.

101–618 limited the Tribe to using only

10,587.5 acre-feet or approximately 56

percent of that water right per year as

part of a settlement with the Tribe.

Though the remaining 8,453.55 acre-feet

of water rights are not active because the

Tribe cannot call for this water, the DOI

pays operations and maintenance fees to

TCID on the full 19,041.05 acre-foot

water right. Therefore, in a 56 percent

water year (or better), the Tribe gets 56

percent of 19,041.05 acre-feet of water

which equals their use cap of 10,587.5

acre-feet.

III. Technical Issues

1. Rock Dam Ditch: The proposed

Adjusted OCAP rule would have

changed how certain diversions to Rock

Dam Ditch are counted. Rock Dam Ditch

may receive water directly from releases

at Lahontan Reservoir, or may get water

directly from the Truckee Canal via a

siphon pipe under the stilling basin

below Lahontan Dam. In the proposed

rule, diversions directly from the

Truckee Canal would have counted

against the Truckee Division. Two

commenters noted that this is incorrect

and all diversion to Rock Dam Ditch

should be counted in the Carson

Division.

Response: The commenters are

correct, as the water that reaches Rock

Dam Ditch would, in all cases, come

from water in Lahontan Reservoir or

destined to arrive in Lahontan

Reservoir. The language at section

418.23 has been revised.

2. Credit and Debit Procedures: Three

commenters object to how the credit

and debit incentive provisions

preserved from the 1988 OCAP provide

for a full debit but a credit of only twothirds of the actual savings. They

suggest the credit should be a full credit.

Response: These credit and debit

provisions are in the 1988 OCAP as a

way to encourage the Project to meet or

exceed the efficiency targets. The debit

is based fully on the excess water that

was used in the season. Using that

excess water leaves Lahontan Reservoir

with less winter carryover storage, and

allows for larger amounts of Truckee

River water to be diverted to make up

for the ‘‘hole’’ that was left in the

Reservoir.

The credit provision allows the

Project to take advantage of the unused

water any time it exceeds the efficiency

targets. By definition, this unused water

is water that was not needed to serve

Project water rights. The Gesell decision

in Tribe v. Morton specifies that only

the water needed to serve Project water

rights can be diverted to the Project

from the Truckee River. Therefore, the

Project earns a credit for the portion of

the Carson River water saved through

greater efficiency, presumed to be about

two-thirds because about two-thirds of

the Project water comes from the Carson

River. The remaining third stays in

Lahontan Reservoir to help reduce

future diversions of Truckee River water

as a way of returning the Truckee River

water that was not needed when the

credit was earned.

3. Forecasting: One commenter

wanted clarification of how the

deliberative forecasting process will

work and wanted to know if this would

avoid what happened in the 1993–1994

season when a full water year was

initially forecast and it turned out to be

one of the driest years on record.

Response: The 1988 OCAP required

the BOR to rely solely on the NRCS

runoff forecasts for the Carson River.

However, there are runoff forecasts

prepared by other Federal and State

agencies that can be used along with the

NRCS forecast. The consultation process

also allows the BOR to take advantage

of the years of experience available from

local authorities. This change was

proposed in the Adjusted OCAP in

response to the situation that occurred

in 1993–1994.

4. Water Rights Maps: Two

commenters object to using the TCID’s

water maps to determine eligible land

irrigated with transferred water rights,

saying that the maps were never

intended to be in OCAP. They suggest

that eligible lands should follow what is

defined in contracts, decrees, and State

law.

Response: The BOR relies on the TCID

to maintain and keep up-to-date these

water rights maps as the basis for

determining which lands are eligible to

be irrigated. The land definitions in

contracts and decrees do not indicate

whether a particular parcel has been

irrigated and is deemed to have a valid

water right. Issues of eligible land and

valid transfers are before the Nevada

State Engineer at this time.

5. Floods: One commenter said that

before completing the rulemaking a

study needs to be done of whether

OCAP contribute to flooding.

Response: The flooding on the Carson

and Truckee Rivers in 1997 was an

excellent example of how OCAP do not

affect flooding. Thanks to Lahontan

Dam and Reservoir, the communities

below the dam were the only areas that

were not flooded in January 1997. The

irrigation system below the Dam,

including the Carson River, can handle

releases of about 2,000 cubic feet per

second (cfs) without causing flooding.

During the flood, the inflow to Lahontan

Reservoir was higher than 10,000 cfs at

times. That flow would have caused

widespread flooding in the Lahontan

Valley if not for the storage available in

the Reservoir. Without any OCAP, much

less space would have been available to

capture and regulate the flood waters

because, prior to OCAP, the Project

diverted water from the Truckee River

year-round. The Adjusted OCAP will

further help reduce flooding risks.

6. 1967 OCAP Language: One

commenter suggested leaving in place

the Statement of Considerations and

some objectives from the 1967 OCAP

that is currently in the Code of Federal

Regulations at 43 CFR Part 418 and is

to be replaced by this rule. The

commenter says the information is

important to understanding the need for

OCAP.

Response: Much of the information

contained in the 1967 OCAP Statement

of Considerations has been incorporated

in the preamble to this rulemaking and

prior OCAPs. The 1967 OCAP is being

replaced in its entirety.

Administrative Matters

• This rule has been made effective

on publication to stop ongoing

diversions of water from the Truckee

River to Lahontan Reservoir. Under the

current 1988 OCAP storage target

provisions, approximately 500 acre-feet

per day are being diverted. The

diversion will continue to divert until

the Adjusted OCAP and a new set of

Lahontan Reservoir storage targets go

into effect. This water is not needed to

serve water rights in the Newlands

Project at this time and in accordance

with the requirements of Tribe v.

Morton is water that must flow to

Pyramid Lake.

• This rule is not a significant rule

under Executive Order (E.O.) 12866 and

does not require review by the OMB.

• As required by the Regulatory

Flexibility Act, it is hereby certified that

this rule will not have a significant

impact on small business entities.
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• This rule does not include any

collections of information requiring

approval under the Paperwork

Reduction Act.

• The DOI has determined that the

proposed rule is not a major Federal

action having significant effects on the

human and natural environment. An

environmental assessment (EA) has

been prepared on the effects of the

proposed rule.

• The proposed rule has no

substantial effects on Federalism under

the requirements of E.O. 12612.

• The proposed rule does not have a

significant impact on family

formulation, maintenance, and general

well-being under the requirements of

E.O. 12606.

• The proposed rule does not

represent a government action that

would interfere with constitutionally

protected property rights and does not

require a Takings Implications

Assessment under E.O. 12630.

• The proposed rule meets the

applicable standards of civil justice

reform in accordance with E.O. 12988.

• The proposed rule will not result in

aggregate annual expenditures in excess

of $100 million by state, local, and tribal

governments, or the private sector and

is, therefore, not subject to the

requirements of Section 202 of the

Unfunded Mandates Reform Act of 1995

(Pub. L. 104–4).

The author of this rule is Jeffrey

Zippin of the Department of the Interior,

Truckee-Carson Coordination Office.

The rule replaces the 1967 OCAP

regulations at 43 CFR 418. That

regulation was superseded by

subsequent U.S. District Court-approved

OCAP, including the 1988 OCAP, which

are the basis for this rule.

List of Subjects in 43 CFR Part 418

Irrigation, Water supply, Newlands

Irrigation Project; Operating criteria and

procedures.

Dated: December 11, 1997.

Patricia J. Beneke,

Assistant Secretary—Water and Science.

For the reasons set forth in the

preamble, 43 CFR part 418 is revised to

read as follows:

PART 418—OPERATING CRITERIA

AND PROCEDURES FOR THE

NEWLANDS RECLAMATION

PROJECT, NEVADA

General Provisions

Sec.

418.1 Definitions.

418.2 How Project water may be used.

418.3 Effect of these regulations on water

rights.

418.4 Prohibited deliveries.

418.5 Responsibility for violations.

418.6 Fallon Paiute-Shoshone Indian

Reservation.

Conditions of Water Delivery

418.7 Who may receive irrigation deliveries.

418.8 Types of eligible land.

418.9 Reporting changes in eligible land.

418.10 Determining the amount of water

duty to be paid.

418.11 Valid headgate deliveries.

418.12 Project efficiency.

418.13 Maximum allowable limits.

Monitoring Diversions

418.14 Recordkeeping requirements.

418.15 Operations monitoring.

Operations and Management

418.16 Using water for power generation.

418.17 Truckee and Carson River water use.

418.18 Diversions at Derby Dam.

418.19 Diversions from the Truckee River to

the Truckee Division.

418.20 Diversions from the Truckee River to

Lahontan Reservoir, January through

June.

418.21 Diversion of Truckee River water to

Lahontan Reservoir, July through

December

418.22 Future adjustments to Lahontan

Reservoir storage targets.

418.23 Diversion of Rock Dam Ditch water.

418.24 Precautionary draw down and spills

from Lahontan Reservoir.

418.25 Water use for other than Newlands

Project.

418.26 Charges for water use.

418.27 Distribution system operation.

Enforcement

418.28 Conditions of delivery.

418.29 Project management.

418.30 Provisions required in future

contracts.

Water Management and Conservation

418.31 Conservation measures.

418.32 Cooperative programs.

Implementation

418.33 Purpose of the implementation

strategy.

418.34 Valid headgate deliveries.

418.35 Efficiencies.

418.36 Incentives for additional long term

conservation.

418.37 Disincentives for lower efficiency.

418.38 Maximum allowable diversion

(MAD).

Appendix A to Part 418—Expected Project

Conveyance Efficiency

Authority: 43 U.S.C. 391, et seq.; 43 U.S.C.

373; 43 U.S.C. 614, et seq.; 104 Stat. 3289,

Pub. L. 101–618.

General Provisions

§ 418.1 Definitions.

Bureau means the Bureau of

Reclamation.

Decrees means the Alpine decree

(United States v. Alpine Land and

Reservoir Co., 503 F. Supp. 877 (D. Nev.

1980)) and the Orr Ditch decree (United

States v. Orr Water Ditch Co., Equity No.

A–3 (D. Nev.))

District means the Truckee-Carson

Irrigation District or any other approved

Newlands Project operator.

Eligible land means Project land

which at the time of delivery has a valid

water right and either:

(1) Is classified as irrigable under

Bureau land classification standards

(Reclamation Instruction Series 510); or

(2) Has a paid out Project water right.

Full reservoir means 295,500 acre-feet

in Lahontan Reservoir using Truckee

River diversions. The Reservoir can fill

above 295,500 acre-feet to 316,500 acrefeet with Carson River inflow and the

use of flash boards. Intentional storage

on the flash boards will occur only after

the peak runoff.

Project means the Newlands Irrigation

Project in western Nevada.

§ 418.2 How Project water may be used.

Project water may be delivered only to

serve valid water rights used for:

(a) Maintenance of wetlands and fish

and wildlife including endangered and

threatened species;

(b) Recreation;

(c) Irrigation of eligible land; and

(d) Domestic and other uses of Project

water as defined by the decrees.

§ 418.3 Effect of these regulations on

water rights.

This part governs water uses within

existing rights. This part does not in any

way change, amend, modify, abandon,

diminish, or extend existing rights.

Water rights transfers will be

determined by the Nevada State

Engineer under the provisions of the

Alpine decree.

§ 418.4 Prohibited deliveries.

The District must not deliver Project

water or permit its use except as

provided in this part. No Project water

will be released in excess of the

maximum allowable diversion or

delivered to ineligible lands. Delivery of

water to land in excess of established

water duties is prohibited.

§ 418.5 Responsibility for violations.

Violations of the terms and provisions

of this part must be reported

immediately to the Bureau. The District

or individual water users will be

responsible for any shortages to water

users occasioned by waste or excess

delivery or delivery of water to

ineligible land as provided in this part.

§ 418.6 Fallon Paiute-Shoshone Indian

Reservation.

Nothing in this part affects:

(a) The authority of the Fallon PaiuteShoshone Tribe to use water on the
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Tribe’s reservation which was delivered

to the Reservation in accordance with

this part; or

(b) The Secretary’s trust responsibility

with respect to the Fallon PaiuteShoshone Tribe.

Conditions of Water Delivery

§ 418.7 Who may receive irrigation

deliveries.

Project irrigation water deliveries may

be made only to eligible land to be

irrigated. The District must maintain

records for each individual water right

holder indicating the number of eligible

acres irrigated and the amount of water

ordered and delivered.

§ 418.8 Types of eligible land.

(a) Eligible land actually irrigated.

During each year, the District, in

cooperation with the Bureau, must

identify and report to the Bureau the

location and number of acres of eligible

land irrigated in the Project. Possible

irrigation of ineligible land will also be

identified. The Bureau will review data

to ensure compliance with this part. The

District, in cooperation with the Bureau,

will be responsible for field checking

potential violations and immediately

stopping delivery of Project water to any

ineligible land. The Bureau may also

audit as appropriate.

(b) Eligible land with transferred

water rights. The District water rights

maps dated August 1981 through

January 1983 will be used as the basis

for determining which lands have a

valid water right. The original maps will

be maintained by the District. The

District must provide copies of the maps

to the Bureau. The District will alter the

maps and the copies to account for

water right transfers as the transfers are

approved by the Nevada State Engineer.

(c) Other eligible land. The Bureau

will also identify eligible land that was

not irrigated during the prior irrigation

season.

§ 418.9 Reporting changes in eligible land.

(a) Eligible land anticipated to be

irrigated. (1) Anticipated changes in

irrigated eligible land from the prior

year will be reported to the Bureau’s

Lahontan Area Office by the District by

March 1 of each year. The District will

adjust the acreage of the eligible land

anticipated to be irrigated to correct for

inaccuracies, water right transfers that

have been finally approved by the

Nevada State Engineer, and any other

action that affects the number of eligible

acres, acres anticipated to be irrigated,

or water deliveries.

(2) As the adjustments are made, the

District will provide updated

information to the Bureau for review

and approval. The District must adjust

anticipated water allocations to

individual water users accordingly. The

allocations will at all times be based on

a maximum annual entitlement of 3.5

acre-feet (AF) per acre of bottom land,

4.5 AF per acre of bench land, and 1.5

AF per acre of pasture land that is

anticipated to be irrigated and not on

the number of water-righted acres.

(3) The District will provide the

individual water users with the

approved data regarding the anticipated

acreage to be irrigated and water

allocations for each water user that year.

(i) Any adjustments based on changes

in lands anticipated to be irrigated

during the irrigation season must be

reported by the individual water user to

the District.

(ii) The District will, in turn, notify

the Bureau of any changes in irrigated

acreage which must be accounted for.

(iii) Each landowner’s anticipated

acreage must be less than or equal to the

landowner’s eligible acreage.

(4) Should a landowner believe that

the number of acres of eligible land he

or she is entitled to irrigate is different

from the number of acres as approved

by the Bureau, the landowner must

notify the District and present

appropriate documentation regarding

the subject acreage. The District must

record the information and present the

claim to the Bureau for further

consideration.

(i) If the Bureau determines there is

sufficient support for the landowner’s

claim, then adjustments will be made to

accommodate the changes requested by

the landowner.

(ii) If the Bureau disallows the

landowner’s claim, the Bureau must

notify the District in writing. The

District will, in turn, inform the

landowner of the disposition of the

claim and the reasons therefore, and

will further instruct the landowner that

he or she may seek judicial review of

the Bureau’s determination under the

decrees. If the dispute affects the current

year, then the Bureau and the District

will seek to expedite any court

proceeding.

(b) Changes in domestic and other

uses. By March 1 of each year, the

District must report to the Bureau all

anticipated domestic and other water

uses. This notification must include a

detailed explanation of the criteria used

in allowing the use and sufficient

documentation on the type and amount

of use by each water user to demonstrate

to the satisfaction of the Bureau that

each water user is in compliance with

the criteria. With adequate

documentation, the District may notify

the Bureau of any changes in domestic

water requirements at any time during

the year.

§ 418.10 Determining the amount of water

duty to be delivered.

(a) Eligible land may receive no more

than the amount of water in acre-feet

per year established as maximum farm

headgate delivery allowances by the

decrees. All water use is limited to that

amount reasonably necessary for

economical and beneficial use under the

decrees.

(b) The annual water duty as assigned

by the decrees is a maximum of 4.5 AF

per acre for bench lands and a

maximum of 3.5 AF per acre for bottom

lands. The water duty for fields with a

mixture of bench and bottom lands must

be the water duty of the majority

acreage. Bench and bottom land

designations as finally approved by the

United States District Court for the

District of Nevada will be used in

determining the maximum water duty

for any parcel of eligible land. The

annual water duty for pasture land

established by contract is 1.5 AF per

acre.

§ 418.11 Valid headgate deliveries.

The valid water deliveries at the

headgate are set by the product of

eligible land actually irrigated

multiplied by the appropriate water

duty in accordance with §§ 418.8 and

418.10. The District will regularly

monitor all water deliveries and report

in accordance with § 418.9. No amount

of water will be delivered in excess of

the individual water user’s headgate

entitlement. In the event excess

deliveries should occur, such amount

will be automatically reflected in the

efficiency deficit adjustment to the

Lahontan storage. Water delivered in

excess of entitlements must not be

considered valid for purposes of

computing project efficiency.

§ 418.12 Project efficiency.

(a) The principal feature of this part

is to obtain a reasonable level of

efficiency in supplying water to the

headgate by the District. The efficiency

targets established by this part are the

cornerstone of the enforcement and the

incentive provisions and when

implemented will aid other competing

uses.

(b) The efficiency is readily calculable

at the year’s end, readily applicable to

water appropriate to that year, able to be

compared to other irrigation systems

even though there may be many

dissimilarities, appropriate for long term

averaging, adjustable to any headgate

delivery level including droughts or

allocations, automatically adjusts to
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changes during the year and accurately

accounts for misappropriated water.

Efficiency also can be achieved through

any number of measures from

operations to changes in the facilities

and can be measured as an end product

without regard to the approach. Thus it

is flexible enough to allow local

decision making and yet is fact based to

minimize disputes.

(c) Assuming the headgate deliveries

are valid and enforceable, conveyance

efficiency is the only remaining variable

in determining the quantity of water

needed to be supplied to the District.

Conveyance efficiency is a measure of

how much water is released into the

irrigation system relative to actual

headgate deliveries. Differences in

efficiency, therefore, are directly

convertible to acre-feet. The differences

in efficiency, expressed as a quantity in

acre-feet, may be added to or subtracted

from the actual Lahontan Reservoir

storage level before it is compared to the

monthly storage objective. Thus, the

diversions from the Truckee River,

operation of other facilities (e.g.,

Stampede Reservoir) and decisions

related to Lahontan Reservoir are made

after the efficiency storage adjustments

have been made. Operating decisions

are made as if the adjusted storage

reflected actual conditions.

(1) Efficiency incentive credits. In any

year that the District’s actual efficiency

exceeds the target efficiency for the

actual headgate delivery, two-thirds of

the resultant savings, in water, will be

credited to the District as storage in

Lahontan. This storage amount will

remain in Lahontan Reservoir as water

available to the District to use at its

discretion consistent with Nevada and

Federal law. Such uses may include

wetlands (directly or incidentally),

power production, recreation, a hedge

against future shortages or whatever else

the District determines. The storage is

credited at the end of the irrigation

season from which it was earned. This

storage ‘‘floats’’ on top of the reservoir

so that if it is unused it will be spilled

first if the reservoir spills. The District

may use all capacity of Lahontan

Reservoir not needed for project

purposes to store credits.

(2) Efficiency disincentive debits. In

any year that the District’s actual

efficiency falls short of the target

appropriate to the actual headgate

deliveries, then the resultant excess

water that was used is considered

borrowed from the future. Thus it

becomes a storage debit adjustment to

the actual Lahontan Reservoir storage

level for determining all operational

decisions. The debit may accumulate

but may not exceed a maximum as

defined in § 418.13(b). The debit must

be offset by an existing incentive credit

or, if none is available, by a subsequent

incentive at a full credit (not a 2/3

credit), or finally by a restriction of

actual headgate deliveries by the

District. This would only be done

prospectively (a subsequent year) so the

District and the water users can prepare

accordingly. Since the debit does not

immediately affect other competing uses

or the District (except in a real drought),

it allows for future planning and

averaging over time.

(3) Efficiency targets. To determine

the efficiency target, the system delivery

losses were divided into categories such

as seepage, evaporation and operational

losses. The ‘‘reasonable’’ level of savings

for each category was then determined

by starting with current operating

experience and applying the added

knowledge from several measures.

Means of achieving the efficiency

targets, including the specific

conservation measures and amounts, are

identified in the table Possible Water

Conservation Measures for the

Newlands Project. Applicable target

efficiencies will be determined each

year as described in § 418.13 (a)(4).

(4) Available conservation measures.

The water conservation measures

referred to in paragraph (c)(3) of this

section and others currently available to

the District are listed in the following

table. The table has been revised based

upon the Bureau of Reclamation’s Final

Report to Congress of the Newlands

Project Efficiency Study, 1994.

POSSIBLE WATER CONSERVATION MEASURES FOR THE NEWLANDS PROJECT

Conservation measures 1 Expected savings in acrefeet (AF) per year 2 Notes

1. Water ordering 1,000 Require 48-hour advance notice.

2. Adjust Lahontan Dam releases frequently++ 3 Match releases to demand with daily adjustments.

3. Increase accuracy of delivery

records and measurement devices

12,000 Account for deliveries to nearest cfs and to nearest minute.

4. Change operation of regulating reservoirs?? 4 Eliminate use of all or parts of regulating reservoirs; drain at end of season.

5. Shorten irrigation season 4,000 Reduce by 2 weeks.

6. Control delivery system ++ Eliminate spills, better scheduling, grouping deliveries.

7. System improvements ?? O&M activity: repair leaky gates, reshape canals, improve measuring devices.

8. Dike off 2/3 S-Line Reservoir 2,720 500 ft. dike; (5’ evaporation, 0.75’ seepage).

9. Dike off south half of Harmon Reservoir2,130 5,000 ft. dike; large savings considering canal losses (5’ evap., 1.8’ seepage).

10. Dike off west half of Sheckler

Reservoir

2,400 6,000 ft. dike.

11. Eliminate use of Sheckler Reservoir4,000 Use for Lahontan spill capture only; restore 200 ft. of E-Canal; A-Canal is

OK.

12. Line 20 miles of Truckee Canal 5 20,000 Reduces O&M.

13. Line large canals 26,100–31,000 Line large net losers first.

14. Line regulatory reservoirs 2.3 AF/acre

15. Reuse drain water for irrigation 7,100 Assuming blended water quality would be adequate

16. Ditch rider training each year ??

17. Canal automation ?? Reduced canal fluctuations.

18. Community rotation system ?? Grouping deliveries by area.

19. Reclamation Reform Act water

conservation plan:

?? District implementation of water conservation plan.

a. Weed and phreatophyte control
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POSSIBLE WATER CONSERVATION MEASURES FOR THE NEWLANDS PROJECT—Continued

Conservation measures 1 Expected savings in acrefeet (AF) per year 2 Notes

b. Fix gate leaks

c. Water measurement

d. Automation

e. Communication

20. Pumps and wells for small

diverters

400

21. Water pricing by amount used ++ Incurs administrative costs to implement.

22. Incentive programs ?? For District personnel and/or water users.

23. Drain canals 1,065 At the end of each irrigation season.

24. Acquire parcels with inefficient delivery622,280 Acquire and retire water rights from irrigated acreage with particularly inefficient delivery. Lesser savings from transferring water rights to lands

with more efficient delivery.

1The first seven measures were considered in developing the water budget in Table 1 for the 1988 OCAP. Additional measures could be implemented by the District to help achieve efficiency requirements. 2Water savings have been updated in accordance with Bureau of Reclamation’s Report to Congress on Newlands Project Efficiency, April

1994. 3 ++ indicates a positive number for savings but not quantifiable at this time.

4 ?? indicates uncertainty as to savings.

5This measure was included in the 1988 OCAP and effects overall Project efficiency; it is recognized that savings from this measure are not

accounted for in the OCAP. 6 Identified in the 1994 BOR Efficiency Study: 31 Corporation, below Sagouspe Dam, and N Canal.

(5) The measures in paragraph (c)(4)

of this section are discretionary choices

for the District. The range of measures

available to the District provides a level

of assurance that the target efficiency is

reasonably achievable. The resultant

efficiency targets were also compared to

the range of efficiencies actually

experienced by other irrigation systems

that were considered comparable in

order to provide a further check on

‘‘reasonable.’’ Most of the delivery

losses are relatively constant regardless

of the amount of deliveries. The

efficiency will necessarily vary with the

amount of headgate deliveries.

(6) The target efficiency for any

annual valid headgate delivery can be

derived from the table in Appendix A to

this part.

§ 418.13 Maximum allowable limits.

(a) Maximum allowable diversions. (1)

A provisional water budget in the

Newlands Project Water Budget table

must be recalculated for each irrigation

season to reflect anticipated waterrighted acres to be irrigated. At the start

of the irrigation season, the maximum

allowable diversion (MAD) for each year

must be determined by revising the first

10 lines of the Newlands Project Water

Budget table based on acres of eligible

land anticipated to actually be irrigated

in that year (§ 418.9(a)) and the water

duties for those lands (§ 418.10 ). At the

end of the irrigation season, the required

target efficiency must be recalculated for

the irrigation season based on the actual

irrigated acres and percent use of

headgate entitlements.

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(2) The MAD will be calculated

annually to ensure an adequate water

supply for all water right holders whose

water use complies with their decreed

entitlement and this part. The MAD is

the maximum amount of water

permitted to be diverted for irrigation

use on the Project in that year. It is

calculated to ensure full entitlements

can be provided, but is expected to

significantly exceed Project

requirements. The MAD will be

established by the Bureau at least 2

weeks before the start of each irrigation

season. All releases of water from

Lahontan Reservoir and diversions from

the Truckee Canal (including any

diversions from the Truckee Canal to

Rock Dam Ditch) must be charged to the

MAD except as provided in §§ 418.23

and 418.35 of this part.

(3) On the basis of the methodology

adopted in this part (i.e., actual irrigated

acres multiplied by appropriate water

duties divided by established project

efficiency) an example of the MAD

calculated for the projected irrigated

acreage as shown in the Newlands

Project Water Budget table would be

308,319 acre-feet for the 1995 Example.

The sample MAD corresponds to a

system efficiency for full deliveries at

66.9 percent for 1995 actual acres.

Target efficiencies must be based on the

percentage of maximum headgate

entitlement delivered and not on the

percent of water supply available.

(4) The table Expected Project

Distribution System Efficiency shows

the target efficiencies which will be

used over the range of irrigated acreage

and percent use of entitlement expected

in the future. At the beginning of the

irrigation season, the target efficiencies

from the Expected Project Distribution

System Efficiency table used to

calculate the MAD will be based on the

expected irrigated acreage and expected

percent use of entitlement. At the end

of the irrigation season, the actual

acreage irrigated and actual percent use

of entitlement will be used to determine

the required efficiency from the

Expected Project Distribution System

Efficiency. The target efficiencies are

read directly from the table if the

acreage and use of entitlement values

are shown, otherwise the target

efficiency must be extrapolated from the

table or calculated using the Efficiency

Equation. Appendix A of this part

shows the calculations used to derive

the Efficiency Equation and the

efficiency targets.

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(5) Adjustments in the MAD must be

made by the Bureau each year based on

changes in irrigated eligible land from

the prior year and subsequent decisions

concerning transfers of Project water

rights, using the methodology

established in this section.

(6) If the MAD for a given year will

not meet the water delivery

requirements for the eligible land to be

irrigated due to weather conditions,

canal breaks, or some other unusual or

unforeseen condition, the District must

ask the Bureau for additional water.

(i) The District’s request must include

a written statement containing a

detailed explanation of the reasons for

the request.

(ii) The Bureau must promptly review

the request and after consultation with

the Federal Water Master and other

interested parties, will determine if the

request or any portion of it should be

approved. The Bureau will make

reasonable adjustments for unforeseen

causes or events but will not make

adjustments to accommodate waste or

Project inefficiency or other uses of

water not in accordance with this part

or with State and Federal law.

(iii) The Bureau will then notify the

District of its determination. If the

District does not agree with the Bureau’s

decision, it may seek judicial review.

The Bureau and the District will seek to

expedite the court proceeding in order

to minimize any potential adverse

effects.

(b) Maximum allowable efficiency

debits (MED). The debits in Lahontan

Reservoir storage from the District’s

actual conveyance efficiency not

achieving the target efficiency can

accumulate over time. If these amounts

of borrowed storage get too large they

may not be offset later by increased

efficiencies and may severely affect the

District’s water users by imposing an

added ‘‘drought’’ on top of a real one.

Therefore, the maximum efficiency

debit cushion is set at 26,000 acre-feet.

However, unlike the MAD, it only

applies to the subsequent year’s

operation. The MED is approximately 9

percent of the headgate entitlements.

Monitoring Diversions

§ 418.14 Recordkeeping requirements.

(a) By the end of each month, the

District must submit to the Bureau’s

Lahontan Area Office reports for the

previous month which document

monthly inflow and outflow in acre-feet

from the Truckee and Carson divisions

of the Project for that month. Reports

must include any data the Bureau may

reasonably require to monitor

compliance with this part.

(b) Accounting for farm headgate

deliveries must be based on the amount

of water actually delivered to the water

user. Project operations must provide

for the amount of water ordered and the

distribution system losses.

(c) The District must keep records of

all domestic and other water uses

showing the purpose and amount of

water usage for each entity. The District

must make the records available for

review by the Bureau upon request. The

Bureau may audit all records kept by the

District.

§ 418.15 Operations monitoring.

(a) The Bureau will work with the

District to monitor Project operations

and will perform field inspections of

water distribution during the irrigation

season.

(1) Staff members of the Bureau’s

Lahontan Area Office and the District

will meet as often as necessary during

the irrigation season after each water

distribution report has been prepared to

examine the amounts of water used to

that point in the season.

(2) On the basis of the information

obtained from field observations, water

use records, and consultations with

District staff, the Bureau will determine

at monthly intervals whether the rate of

diversion is consistent with this part for

that year.

(3) The District will be informed in

writing of suggested adjustments that

may be made in management of

diversions and releases as necessary to

achieve target efficiencies and stay

within the MAD.

(b) Project operations will be

monitored in part by measuring flows at

key locations. Specifically, Project

diversions (used in the calculations

under § 418.18 below) will be

determined by:

(1) Adding flows measured at:

(i) Truckee Canal near Wadsworth—

U.S. Geological Survey (USGS) gauge

number 10351300;

(ii) Carson River below Lahontan

Dam—USGS gauge number 10312150;

(iii) Rock Dam Ditch near the end of

the concrete lining; and

(2) Subtracting:

(i) Flows measured at the Truckee

Canal near Hazen—USGS gauge number

10351400;

(ii) The Carson River at Tarzyn Road

near Fallon (below Sagouspe Dam) for

satisfying water rights outside of the

Project boundaries as described in

§ 418.25, USGS gauge number

10312275;

(iii) Estimated losses in the Truckee

Canal; and

(iv) Spills, precautionary drawdown,

and incentive water released at

Lahontan Dam under §§ 418.24 and

418.36.

Operations and Management

§ 418.16 Using water for power generation.

All use of Project water for power

generation must be incidental to

releases charged against Project

diversions, precautionary drawdown,

incentive water (§ 418.35 ), or spills.

§ 418.17 Truckee and Carson River water

use.

Project water must be managed to

make maximum use of Carson River

water and to minimize diversions of

Truckee River water through the

Truckee Canal. This will make available

as much Truckee River water as possible

for use in the lower Truckee River and

Pyramid Lake.

§ 418.18 Diversions at Derby Dam.

(a) Diversions of Truckee River water

at Derby Dam must be managed to

maintain minimum terminal flow to

Lahontan Reservoir or the Carson River

except where this part specifically

permits diversions.

(b) Diversions to the Truckee Canal

must be managed to achieve an average

terminal flow of 20 cfs or less during

times when diversions to Lahontan

Reservoir are not allowed (the flows

must be averaged over the total time

diversions are not allowed in that

calendar year; i.e., if flows are not

allowed in July and August and then are

allowed in September then not allowed

in October and November, the average

flow will be averaged over the four

months of July, August, October, and

November).

(c) The Bureau will work

cooperatively with the District on

monitoring the flows at the USGS gage

on the Truckee Canal near Hazen to

determine if and when flows are in

excess of those needed in accord with

this part and bringing the flows back

into compliance when excessive.

(d) Increases in canal diversions

which would reduce Truckee River

flows below Derby Dam by more than 20

percent in a 24-hour period will not be

allowed when Truckee River flow, as

measured by the gauge below Derby

Dam, is less than or equal to 100 cfs.

(e) Diversions to the Truckee Canal

will be coordinated with releases from

Stampede Reservoir and other

reservoirs, in cooperation with the

Federal Water Master, to minimize

fluctuations in the Truckee River below

Derby Dam in order to meet annual flow

regimes established by the United States

Fish and Wildlife Service for listed

species in the lower Truckee River.
Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations 66475

§ 418.19 Diversions from the Truckee

River to the Truckee Division.

Sufficient water, if available, will be

diverted from the Truckee River through

the Truckee Canal to meet the direct

irrigation, domestic and other

entitlements of the Truckee Division.

§ 418.20 Diversions from the Truckee

River to Lahontan Reservoir, January

through June.

(a) Truckee River diversions through

the Truckee Canal will be made to meet

Lahontan Reservoir end-of-month

storage objectives for the months of

January through June. The current

month storage objective will be based,

in part, on the monthly Natural

Resources Conservation Service (NRCS)

April through July runoff forecast for the

Carson River near Fort Churchill. The

forecast will be used to determine the

target storage for Lahontan Reservoir

and anticipated diversion requirements

for the Carson Division. The Bureau, in

consultation with the District, Federal

Water Master, Fish and Wildlife Service,

the Pyramid Lake Paiute Tribe, and

other affected parties, will determine

the exceedance levels and predicted

Carson River inflows based on the

reliability of the NRCS forecast and

other available information such as river

forecasts from other sources. The endof-month storage objectives may be

adjusted any time during the month as

new forecasts or other information

become available.

(b) The January through June storage

objective will be calculated using the

following formula:

LSOCM=TSM/J¥(C1* AJ)+L+(C2* CDT)

Where:

(1) LSOCM=current end-of-month

storage objectives for Lahontan

Reservoir.

(2) TSM/J=current end-of-month May/

June Lahontan Reservoir target

storage.

(3) C1* AJ=forecasted Carson River

inflow for the period from the end

of the current month through May

or June, with AJ being the Bureau’s

April through July runoff forecast

for the Carson River at Fort

Churchill and C1 being an

adjustment coefficient.

(4) L=an average Lahontan Reservoir

seepage and evaporation loss from

the end of the current month

through May or June.

(5) C2 * CDT=projected Carson Division

demand from the end of the current

month through May or June, with

CDT being the total Carson Division

diversion requirement (based on

eligible acres anticipated to be

irrigated times the appropriate duty

times a 95 percent usage rate), and

C2 being the estimate of the portion

of the total diversion requirement to

be delivered during this period.

(6) Values for TSM/J will vary with the

Carson Division water demand as

shown in § 418.22 and the

Adjustments to Lahontan Reservoir

Storage Targets table. Values C1, L

and C2 are defined in the following

table along with an example of

TSM/J for Carson River water

demand of 271,000 acre-feet.

MONTHLY VALUES FOR LAHONTAN STORAGE COMPUTATIONS

January February March April May June

TSM/J .............................................................................................. 174.0 174.0 174.0 174.0 174.0 190.0

C1/MAY ........................................................................................... 0.863 0.734 0.591 0.394

C1/JUNE ......................................................................................... 1.190 1.061 0.918 0.721 0.327

L/MAY ............................................................................................. 13.9 12.5 9.9 7.1

L/JUNE ............................................................................................ 18.2 16.8 14.2 11.4 4.3

C2/MAY ........................................................................................... 0.30 0.30 0.28 0.18

C2/JUNE ......................................................................................... 0.47 0.47 0.45 0.35 0.17

(c) The Lahontan Reservoir storage

objective for each month is contained in

the following table.

LAHONTAN RESERVOIR STORAGE OBJECTIVES

Period Monthly storage objective

January through April .......................................... Lowest of the May calculation, the June calculation, or full reservoir.

May ..................................................................... Lower of the June calculation or full reservoir.

June .................................................................... June storage target.

(d) Once the monthly Lahontan

Reservoir storage objective has been

determined, the monthly diversion to

the Project from the Truckee River will

be based upon water availability and

Project demand as expressed in the

following relationship:

TRD=TDD+ TCL+CDD+LRL+

LSOCM¥ALRS¥CRI

Where:

(1) TRD=current month Truckee River

diversion in acre-feet to the Project.

(2) TDD=current month Truckee

Division demand.

(3) TCL = current month Truckee Canal

conveyance loss.

(4) CDD = current month Carson

Division demand.

(5) LRL = current month Lahontan

Reservoir seepage and evaporation

losses.

(6) LSOCM = current month end-ofmonth storage objective for

Lahontan Reservoir.

(7) ALRS = current month beginning-ofmonth storage in Lahontan

Reservoir. (Includes accumulated

Stampede credit described below

and further adjusted for the net

efficiency penalty or efficiency

credit described in §§ 418.12,

418.36, and 418.37).

(8) CRI = current month anticipated

Carson River inflow to Lahontan

Reservoir (as determined by

Reclamation in consultation with

other interested parties).

(e) The following procedure is

intended to ensure that monthly storage

objectives are not exceeded. It may be

implemented only if the following

conditions are met:

(1) Diversions from the Truckee River

are required to achieve the current
66476 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations

month Lahontan Reservoir storage

objective (LSOCM);

(2) Truckee River runoff above Derby

Dam is available for diversion to

Lahontan Reservoir;

(3) Sufficient Stampede Reservoir

storage capacity is available.

(f) The Bureau, in consultation with

the Federal Water Master, the District,

Fish and Wildlife Service, the Bureau of

Indian Affairs, and the Pyramid Lake

Paiute Tribe will determine whether the

calculated current month Truckee River

diversion to Lahontan Reservoir (TRDTDD-TCL) may be reduced during that

month and the amount of reduction

credit stored in Stampede Reservoir.

(1) Reductions in diversions may

begin in November and continue until

the end of June.

(2) Reductions in diversions to

Lahontan Reservoir with credit storage

in Stampede Reservoir may be

implemented to the extent that:

(i) The reduction is in lieu of a

scheduled release from Stampede

Reservoir for the purpose of

supplementing flows to Pyramid Lake;

and/or

(ii) Water is captured in Stampede

Reservoir that is scheduled to be passed

through and diverted to the Truckee

Canal.

(3) The Fish and Wildlife Service

must approve any proposal to reduce

diversions to Lahontan Reservoir for

Newlands Project credit purposes

without a comparable reduction in

release from Stampede Reservoir or any

conversion of Stampede Reservoir

project water to Newlands Project credit

water.

(4) The diversion to Lahontan

Reservoir may be adjusted any time

during the month as revised runoff

forecasts become available. The

accumulated credit will be added to

current Lahontan Reservoir storage

(ALRS) in calculating TRD. If the sum

of accumulated credit and Lahontan

Reservoir storage exceeds 295,000 acrefeet, credit will be reduced by the

amount in excess of 295,000 acre-feet.

Credit will also be reduced by the

amount of precautionary drawdown or

spills in that month. If the end-of-month

storage in Lahontan Reservoir plus the

accumulated credit in Stampede

Reservoir at the end of June exceeds the

end-of-month storage objective for

Lahontan, the credit will be reduced by

the amount exceeding the end-of-month

storage objective.

(5) Following consultation with the

District, the Federal Water Master, and

other interested parties as appropriate,

the Bureau will release credit water as

needed for Project purposes from July 1

through the end of the irrigation season

in which the credit accrues with timing

priority given to meeting current year

Project irrigation demands.

(6) Conveyance of credit water in the

Truckee Canal must be in addition to

regularly scheduled diversions for the

Project and will be measured at the

USGS gauge number 10351300 near

Wadsworth.

(7) Newlands credit water in

Stampede Reservoir storage will be

subject to spill and will not carry over

to subsequent years. Newlands credit

water in Stampede can be exchanged to

other reservoirs and retain its priority.

The credit must be reduced to the extent

that Lahontan Reservoir storage plus

accumulated credit at the end of the

previous month exceeds the storage

objectives for that month. If Newlands

credit water is spilled, it may be

diverted to Lahontan Reservoir subject

to applicable storage targets.

(i) The Bureau, in consultation with

the District, the Federal Water Master,

and other interested parties, may release

Newlands Project credit water before

July 1.

(ii) If any Newlands credit water

remains in Stampede Reservoir storage

after the end of the current irrigation

season in which it accumulated, it will

convert to water for cui-ui recovery and

will no longer be available for Newlands

credit water.

(iii) Newlands credit water stored in

Stampede Reservoir will be available for

use only on the Carson Division of the

Newlands Project.

(g) Subject to the provisions of

§ 418.20 (b), LSOCM may be adjusted as

frequently as necessary when new

information indicates the need and

diversions from the Truckee River to the

Truckee Canal must be adjusted daily or

otherwise as frequently as necessary to

meet the monthly storage objective.

§ 418.21 Diversion of Truckee River water

to Lahontan Reservoir, July through

December.

Truckee River diversions through the

Truckee Canal to Lahontan Reservoir

from July through December must be

made only in accordance with the

Adjustments to Lahontan Reservoir

Storage Targets table and § 418.22.

Diversions shall be started to achieve

the end-of-month storage targets listed

in the table in § 418.22 and will be

discontinued when storage is forecast to

meet or exceed the end-of-month storage

targets at the end of the month.

Diversions may be adjusted any time

during the month as conditions warrant

(i.e., new forecasts, information from

other forecasts becoming available, or

any other new information that may

impact stream forecasts).

§ 418.22 Future adjustments to Lahontan

Reservoir storage targets.

(a) The Lahontan Reservoir storage

targets must be adjusted to

accommodate changes in water demand

in the Carson Division. Using the

information reported by the District by

March 1 of each year on eligible land

expected to be irrigated and end-of-year

data on eligible land actually irrigated

(§ 418.9(b)), the Bureau will determine if

the Lahontan Reservoir storage targets

need to be changed. If no change is

needed, the storage targets currently in

effect will remain in effect.

(1) Only the actual water demand

reported for full water years (100

percent water supply) will be

considered. Targets will not be changed

based on water demand reported for less

than full water years.

(2) All changes in storage targets must

start on October 1 of any year. If

information provided by March 1 and

other available information indicates

that the Lahontan Reservoir storage

targets must be changed, the new set of

storage targets must be applied starting

October 1 of the same year and remain

in effect until changed according to this

section.

(b) All changes to storage targets will

be made according to the table in this

section. The table of storage targets has

been developed to provide a consistent

Project water supply over a range of

demands.

(1) A storage target adjustment must

be made in increments of thousands of

acre-feet for the change as indicated in

the column listing Carson Division

Demand and the complete set of

monthly targets must be applied.

(2) If the change in reported water

demand is above or below the values in

the table of storage targets, the

adjustment to the storage targets can be

calculated. The calculated adjustment is

the number that would appear in the

column Target Adjustment in the table.

The calculated Target Adjustment is

then added or subtracted to the base

storage target for each month. Target

Adjustments must be made in whole

increments of 1,000 acre-feet and

calculated values will be rounded to the

nearest 1,000 acre-feet.

(i) For demands greater than those set

forth on the table, the formula for the

Target Adjustment is: Target

Adjustment = 0.00208 (Demand in acrefeet—271,000 acre-feet). For example, if

water demand increased to 292,635

acre-feet per year, the Target

Adjustment calculation would be =

0.00208×(292,535¥271,000). The result

would be a Target Adjustment of 45 or

45,000 acre-feet. This would be added to

the base monthly storage target values
Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations 66477

so, the January–May target would be

219,000 acre-feet, June would be

235,000 acre-feet, and so on.

(ii) For demands less than those set

forth on the table, the formula for the

Target Adjustment is: Target

Adjustment = 0.00174 (Demand in acrefeet—271,000 acre-feet). For example, if

water demand decreased to 248,011

acre-feet per year, the Target

Adjustment calculation would be =

0.00174×(248,011¥271,000). The result

would be a Target Adjustment of ¥40

or ¥40,000 acre-feet. This would be

subtracted from the base monthly

storage target values so, the January–

May target would be 134,000 acre-feet,

June would be 150,000 acre-feet, and so

on.

BILLING CODE 4310–RK–P
66478 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations
Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations 66479

BILLING CODE 4310–RK–C
66480 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations

§ 418.23 Diversion of Rock Dam Ditch

water.

Project water may be diverted directly

to Rock Dam Ditch from the Truckee

Canal only when diversions cannot be

made from the outlet works of Lahontan

Reservoir. Such diversions will require

the prior written approval of the Bureau

and be used in calculating Project

diversions.

§ 418.24 Precautionary drawdown and

spills from Lahontan Reservoir.

(a) Even though flood control is not a

specifically authorized purpose of the

Project, at the request of the District and

in consultation with other interested

parties and the approval of the Bureau,

precautionary drawdown of Lahontan

Reservoir may be made to limit

potential flood damage along the Carson

River. The Bureau will develop criteria

for precautionary drawdown in

consultation with the District and other

interested parties.

(1) The drawdown must be scheduled

sufficiently in advance and at such a

rate of flow in order to divert as much

water as possible into the Project

irrigation system for delivery to eligible

land or storage in reregulating reservoirs

for later use on eligible land.

(2) During periods of precautionary

drawdown, or when water is spilled

from Lahontan Reservoir, Project

diversions will be determined by

comparison with other years’ data and

normalized by comparison of

differences in climatological data. The

Bureau will estimate the normalization

in consultation with the District and

other interested parties.

(3) Spills from Lahontan Reservoir

and precautionary drawdown of the

reservoir to create space for storing

flood waters from the Carson River

Basin that are in excess of the

normalized diversions will not be used

in calculating Project diversions.

(4) Water captured in Project facilities

as a result of a precautionary drawdown

or spill will not be counted as storage

in Lahontan Reservoir for the purpose of

calculating Truckee River Diversions.

Such water will not be counted as

diversions to the Project unless such

water is beneficially applied as

described in (a)(5) of this section.

(5) Water from precautionary

drawdowns or spills that is captured in

Project facilities must be used to the

maximum extent possible, and counted

as deliveries to eligible lands in the year

of the drawdown. If all the drawdown

water captured in Project facilities

cannot be used in the year of capture for

delivery to eligible lands, then that

water must be delivered to eligible lands

in subsequent years to the maximum

extent possible and counted against the

water users’ annual allocation.

(b) If a precautionary drawdown in

one month results in a failure to meet

the Lahontan Reservoir storage objective

for that month, the storage objective in

subsequent months will be reduced by

one-half of the difference between that

month’s storage objective and actual

end-of-month storage. The Bureau is not

liable for any damage or water shortage

resulting from a precautionary

drawdown.

§ 418.25 Water use for other than

Newlands Project purposes.

The District will release sufficient

water to meet the vested water rights

below Sagouspe Dam as specified in the

Alpine decree. These water rights are

usually met by return flows. Releases for

these water rights will in no case exceed

the portion of 1,300 acre-feet per year

not supplied by return flows. This water

must be accounted for at the USGS

gauge number 10312275 (the Carson

River at Tarzyn Road near Fallon).

Releases for this purpose will not be

considered in determining Project

diversions since the lands to which the

water is being delivered are not part of

the Project. (See § 418.15(b)(2)(ii).) Any

flow past this gage in excess of the

amount specified in this part will be

absorbed by the District as an efficiency

loss.

§ 418.26 Charges for water use.

The District must maintain a

financing and accounting system which

produces revenue sufficient to repay its

operation and maintenance costs and to

discharge any debt to the United States.

The District should give consideration

to adopting a system which provides

reasonable financial incentives for the

economical and efficient use of water.

§ 418.27 Distribution system operation.

(a) The District must permit only its

authorized employees or agents to open

and close individual turnouts and

operate the distribution system

facilities. After obtaining Bureau

approval, the District may appoint

agents to operate individual headgates

on a specific lateral if it can be shown

that the water introduced to the lateral

by a District employee is completely

scheduled and can be fully accounted

for with a reasonable allowance for

seepage and evaporation losses.

(b) If agents need to adjust the

scheduled delivery of water to the

lateral to accommodate variable field

conditions, weather, etc., they must

immediately notify the District so

proper adjustments can be made in the

distribution system. Each agent must

keep an accurate record of start and stop

times for each delivery and the flow

during delivery. This record will be

given to the District for proper

accounting of water delivered.

(c) The program of using agents to

operate individual headgates will be

reviewed on a regular basis by the

District and the Bureau. If it is found

that problems such as higher than

normal losses, water not accounted for,

etc., have developed on an individual

lateral, the program will be suspended

and the system operated by District

employees until the problems are

resolved.

Enforcement

§ 418.28 Conditions of delivery.

There are four basic elements for

enforcement with all necessary

quantities and review determined in

accordance with the relevant sections of

this part.

(a) Valid headgate deliveries. If water

is delivered to ineligible land or in

excess of the appropriate water duty

then:

(1) The District will stop the illegal

delivery immediately;

(2) The District will notify the Bureau

of the particulars including the known

or estimated location and amounts;

(3) The amount will not be included

as a valid headgate delivery for

purposes of computing the Project

efficiency and resultant incentive credit

or debit to Lahontan storage; and

(4) If the amount applies to a prior

year, then the amount will be treated

directly as a debit to Lahontan storage

in the same manner as an efficiency

debit.

(b) District efficiency. To the extent

that the actual District efficiency

determined for an irrigation season is

greater or less than the established target

efficiency, as determined for the

corresponding actual valid headgate

deliveries, then the difference in

efficiency, expressed as a quantity in

acre-feet, may be added to or subtracted

from the actual Lahontan Reservoir

storage level before it is compared to the

monthly storage objective as follows:

(1) Greater efficiency—Credited to the

District as storage in Lahontan or

subtracted from any accumulated debit,

or two-thirds as storage in Lahontan for

their discretionary use in accordance

with state law.

(2) Less efficient—Debited or added to

Lahontan storage as an adjustment to

the actual storage level.

(c) Maximum Allowable Diversion

(MAD). The MAD must be computed

each year to determine the amount of

water required to enable the delivery of
Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations 66481

full entitlements at established Project

efficiencies. Project diversions must not

exceed the MAD. Within the operating

year, the Bureau will notify the District

in writing of any expected imminent

violations of the MAD. The District will

take prompt action to avoid such

violations. The Bureau will exercise

reasonable latitude from month to

month to accommodate the District’s

efforts to avoid exceeding the MAD.

(d) Maximum Efficiency Debit (MED).

If the MED exceeds 26,000 AF at the end

of any given year, the District must

prepare and submit to the Bureau for

review and approval, a plan detailing

the actions the District will take to

either earn adequate incentive credits or

to restrict deliveries to reduce the MED

to less than 26,000 AF by the end of the

next year. The plan must be submitted

to the Bureau in writing before the date

of March 1 immediately subsequent to

the exceeding of the MED. If the District

fails to submit an approvable plan,

Project allocations will be reduced by an

amount equal to the MED in excess of

26,000 plus 13,000 (one-half the

allowable MED). Nominally this will

mean a forced reduction of

approximately five percent of

entitlements. The Bureau will notify the

District in writing of the specific

allocation and method of derivation in

sufficient time for the District to

implement the allocation. Liabilities

arising from shortages occasioned by

operation of this provision must be the

responsibility of the District or

individual water users.

§ 418.29 Project management.

In addition to the provisions of

§ 418.28, if the District is found to be

operating Project facilities or any part

thereof in substantial violation of this

part, then, upon the determination by

the Bureau, the Bureau may take over

from the District the care, operation,

maintenance, and management of the

diversion and outlet works (Derby Dam

and Lahontan Dam/Reservoir) or any or

all of the transferred works by giving

written notice to the District of the

determination and its effective date.

Following written notification from the

Bureau, the care, operation, and

maintenance of the works may be

retransferred to the District.

§ 418.30 Provisions required in future

contracts.

The Bureau must provide in new,

amended, or replacement contracts for

the operation and maintenance of

Project works, for the reservation by the

Secretary of rights and options to

enforce this part.

Water Management and Conservation

§ 418.31 Conservation measures.

(a) Specific conservation actions will

be needed for the District and its

members to achieve a reasonable

efficiency of operation as required by

this part. The District is best able to

determine the particular conservation

measures that meet the needs of its

water users. This ensures that the

measures reflect the priorities and

collective judgment of the water users;

and will be practical, understandable

and supported. The District also has the

discretion to make changes in the

measures they adopt as conditions or

results dictate.

(b) The District will keep the Bureau

informed of the measures they expect to

utilize during each year. This will

enable the Bureau to stay apprised of

any helpful information that may, in

turn, help the Bureau assist other

irrigation districts. The Bureau will

work cooperatively in support of the

District’s selection of measures and

methods of implementation.

§ 418.32 Cooperative programs.

(a) The Bureau and the District will

work cooperatively to develop a water

management and conservation program

to promote efficient management of

water in the Project. The program will

emphasize developing methods,

including computerization and

automation, to improve the District’s

operations and procedures for greater

water delivery conservation.

(b) The Bureau will provide technical

assistance to the District and

cooperatively assist the District in their

obligations and efforts to:

(1) Document and evaluate existing

water delivery and measurement

practices:

(2) Implement improvements to these

practices; and

(3) Evaluate and, where practical,

implement physical changes to Project

facilities.

Implementation

§ 418.33 Purpose of the implementation

strategy.

The intent of the implementation

strategy for this part is to ensure that the

District delivers water within

entitlements at a reasonable level of

efficiency as a long term average.

(a) The incentives and disincentives

provided in this part are designed to

encourage local officials with

responsibilities for Project operations to

select and implement through their

discretionary actions, operating

strategies which achieve the principles

of this part.

(b) The specified efficiencies in the

Expected Project Distribution System

Efficiency table (§ 418.13 (a)(4)) were

developed considering implementation

of reasonable conservation measures,

historic project operations, economics,

and environmental effects.

(c) The efficiency target will be used

as a performance standard to establish at

the end of each year on the basis of

actual operations, whether the District is

entitled to a performance bonus in the

form of incentive water or a reduction

in storage for the amount borrowed

ahead.

§ 418.34 Valid headgate deliveries.

Project water may be delivered to

headgates only as provided in §§ 418.8

and 418.10. Water delivered to lands

that are not entitled to be irrigated or

not in accord with decreed water duties

is difficult to quantify at best because it

is not typically measured. Since it is not

likely to be a part of the total actual

headgate deliveries, yet is a part of the

total deliveries to the Project, it will

manifest itself directly as a lower

efficiency. Thus, it will either reduce

the District’s incentive credit or increase

the storage debit by the amount

improperly diverted. All other users

outside the Project are thereby held

harmless but the District incurs the

consequence. This approach should

eliminate any potential disputes

between the District and the Bureau

regarding the quantity of water

misappropriated.

§ 418.35 Efficiencies.

The established target efficiencies

under this part are shown in the

Expected Project Distribution System

Efficiency table (§ 418.13 (a)(4)). The

efficiency of the Project will vary with

the amount of entitlement water

actually delivered at the headgates.

Since most of the distribution system

losses such as evaporation and seepage

do not change significantly with the

amount of water delivered (i.e., these

losses are principally a function of

water surface area and the wetted

perimeter of the canals), the Project

efficiency requirement is higher as the

percent of entitlement water actually

delivered at the headgates increases.

The actual efficiency is calculated each

year after the close of the irrigation

season based on actual measured

amounts. The application of any

adjustments to Lahontan Reservoir

storage or Truckee River diversions

resulting from the efficiency is always

prospective.
66482 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations

§ 418.36 Incentives for additional long

term conservation.

(a) As an incentive for the District to

increase the efficiency of the delivery

system beyond the expected efficiency

of 65.7 percent (66.9 percent with full

delivery) as shown in the Newlands

Project Water Budget table, 1995

Example, the District will be allowed to

store and use the Carson River portion

of the saved water at its discretion, in

accordance with Nevada State Law and

this part.

(1) If the District is able to exceed its

expected efficiency, the District may

store in Lahontan Reservoir two-thirds

(2/3) of the additional water saved. (The

remaining one-third (1/3) of the water

saved will remain in the Truckee River

through reduced diversions to Lahontan

Reservoir). This water will be

considered incentive water saved from

the Carson River and will not be

counted as storage in determining

diversions from the Truckee River or

computing the target storage levels for

Lahontan Reservoir under this part.

(2) For purposes of this part, incentive

water is no longer considered Project

water. The District may use the water

for any purpose (e.g., wetlands, storage

for recreation, power generation,

shortage reduction) that is consistent

with Nevada State Law and Federal

Law. The water will be managed under

the District’s discretion and may be

stored in Lahontan Reservoir until

needed subject to the limitations in

(a)(3) of this section.

(3) The amount of incentive water

stored in Lahontan Reservoir will be

reduced under the following conditions:

(i) There is a deficit created and

remaining in Lahontan Reservoir from

operations penalties in a prior year;

(ii) The District releases the water

from the reservoir for its designated use;

(iii) During a spill of the reservoir, the

amount of incentive water must be

reduced by the amount of spill; and

(iv) At the discretion of the District,

incentive water may be used to offset

the precautionary drawdown

adjustment to the Lahontan storage

objective.

(v) At the end of each year, the

amount of incentive water will be

reduced by the incremental amount of

evaporation which occurs as a result of

the increased surface area of the

reservoir due to the additional storage.

The evaporation rate used will be either

the net evaporation measured or the net

historical average after precipitation is

taken into account. The method of

calculation will be agreed to by the

District and the Bureau in advance of

any storage credit.

(b) An example of this concept is:

Example: Incentive Operation—

(1) At the end of the 1996 irrigation season,

the Bureau and the District audit the

District’s water records for 1996. The

District’s water delivery records show that

194,703 acre-feet of water were delivered to

farm headgates. On the basis of their irrigated

acreage that year (59,075) the farm headgate

entitlement would have been 216,337 acrefeet. On the basis of 90 percent deliveries for

59,075 acres (194,203 divided by 216,337 =

0.90) the established Project efficiency

requirement was 65.1 percent.

(2) On the basis of the established Project

efficiency (66.1 percent), the Project

diversion required to make the headgate

deliveries would be expected to be 291,909

acre-feet (194,703 divided by 0.651 =

291,909). An examination of Project records

reveals that the District only diverted 286,328

acre-feet which demonstrated actual Project

efficiency was 68 percent and exceeded

requirements of this part.

(3) The 5,581 acre-feet of savings (291,909–

286,328 = 5,581) constitutes the savings

achieved through efficiency improvements

and the District would then be credited twothirds (3,721 acre-feet = 5,581 x 2/3) of this

water (deemed to be Carson River water

savings) as incentive water.
Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations 66483

(4) This incentive water may be stored in

Lahontan Reservoir or otherwise used by the

District in its discretion consistent with State

and Federal Law (e.g., power generation,

recreation storage, wildlife, drought

protection, etc.).

§ 418.37 Disincentives for lower efficiency.

(a) If the District fails to meet the

efficiencies established by this part,

then, in effect, the District has borrowed

from a subsequent year. The amount

borrowed will be accounted for in the

form of a deficit in Lahontan Reservoir

storage. This deficit amount will be

added to the actual Lahontan Reservoir

storage quantity for the purpose of

determining the Truckee River

diversions to meet storage objectives as

well as all other operating decisions.

(b) The amount of the deficit will be

cumulative from year to year but will

not be allowed to exceed 26,000 acrefeet (the expected variance between the

MAD and actual water use). This limit

is expected to avoid increasing the

severity of drought and yet still allow

for variations in efficiency over time

due to weather and other factors. This

approach should allow the District to

plan its operation to correct for any

deficiencies.

(c) The deficit can be reduced by

crediting incentive water earned by the

District or reducing the percentage of

headgate entitlement delivered either

through a natural drought or by the

District and its water users

administratively limiting deliveries

while maintaining an efficiency greater

than or equal to the target efficiency.

(d) If there is a natural drought and

the shortage to the headgates is equal to

or greater than the deficit, then the

deficit is reduced to zero. If the shortage

to headgates is less than the deficit then

the deficit is reduced by an amount

equal to the headgate shortage. During a

natural drought, if the percentage of

maximum headgate entitlement

delivered is 75 percent or more then the

District will be subject to the target

efficiencies and resultant deficits or

credits.

(e) If the District has a deficit in

Lahontan Reservoir and earns incentive

water, the incentive water must be used

to eliminate the deficit before it can be

used for any other purpose. The deficit

must be credited on a 1 to 1 basis (i.e.,

actual efficiency savings rather than 1⁄3– 2⁄3 for incentive water).

(f) An example of the penalty concept

is:

Example: Penalty—

In 1996 the District delivers 90 percent of

the maximum headgate entitlement or

194,703 acre-feet 216,337 x .90) but actually

diverts 308,000 acre-feet. The efficiency of

the Project is 63.2 percent (194,703 divided

by 308,000). Since the established efficiency

of 65.1 percent would have required a

diversion of only 299,083 acre-feet (194,703

divided by .651) the District has operated the

system with 8,917 acre-feet of excess losses.

Therefore, 8,917 acre-feet was borrowed and

must be added to the actual storage quantities

of Lahontan Reservoir for calculating target

storage levels and Truckee River diversions.

§ 418.38 Maximum allowable diversion.

(a) The MAD established in this part

is based on the premise that the Project

should be operated to ensure that it is

capable of delivering to the headgate of

each water right holder the full water

entitlement for irrigable eligible acres

and includes distribution system losses.

The MAD will be established (and is

likely to vary) each year. The annual

MAD will be calculated each year based

on the actual acreage to be irrigated that

year.

(b) Historically, actual deliveries at

farm headgates have been

approximately 90 percent of

entitlements. This practice is expected

to continue but the percentage is

expected to change. This variance

between headgate deliveries and

headgate entitlements will be calculated

annually under this part and is allowed

to be diverted if needed and thereby

provides an assurance that full headgate

deliveries can be made. The expected

diversion and associated efficiency

target for the examples shown in the

Newlands Project Water Budget table

would be: 285,243 AF and 65.1 percent

in 1996 and beyond. These are well

below the MAD limits; however, the

District may divert up to the MAD if it

is needed to meet valid headgate

entitlements.

Appendix A to Part 418-Calculation of

Efficiency Equation

BILLING CODE 4310–RK–P
66484 Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations
Federal Register / Vol. 62, No. 243 / Thursday, December 18, 1997 / Rules and Regulations 66485

[FR Doc. 97–32795 Filed 12–15–97; 3:23 pm]

BILLING CODE 4310–RK–C