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###### Department of the Interior

###### Bureau of Reclamation 

# AGENCY:

Bureau of Reclamation, Interior. 

# ACTION:

Notice of public comment period. 

# SUMMARY:

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

# DATES:

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

# ADDRESSES:

If you wish to comment, you may mail comments to Deputy Area Manager, Boulder Canyon Operations Office, Lower Colorado Region, Bureau of Reclamation, BCOO-1010, P.O. Box 61470, Boulder City, Nevada 89006. You may also comment via the Internet at InadvertentOverrun@lc.usbr.gov. If you comment via the Internet, please submit comments as an ASCII file avoiding the use of special characters and any form of encryption. If you do not receive a confirmation via e-mail that we have received your Internet message, please contact us directly at (702) 293-8592. 

Our practice is to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request that we withhold their home address from public disclosure, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold a respondent's identity from public disclosure, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public disclosure in their entirety. 

# FOR FURTHER INFORMATION CONTACT:

Mr. John Redlinger, (702) 293-8592. 

# SUPPLEMENTARY INFORMATION:

                    In its June 3, 1963 opinion in the case of                     *Arizona*                    v.                     *California*                     (373 U.S. 546), the Supreme Court of the United States held that the Congress has directed the Secretary of the Interior (Secretary) to administer a network of useful projects constructed by the Federal Government on the lower Colorado River, and it has entrusted the Secretary with sufficient power to direct, manage, and coordinate their operation. The Court held that this power must be construed to permit the Secretary to allocate and distribute the waters of the mainstream of the Colorado River within the boundaries set down by the Boulder Canyon Project Act (45 Stat. 1057, 43 U.S.C. 617) (BCPA). The Secretary has entered into contracts for the delivery of Colorado River water with entities in Arizona, California, and Nevada in accordance with section 5 of the BCPA. The                           ( print page 4857)                        Secretary has the responsibility of operating Federal facilities on the Colorado River and delivering mainstream Colorado River water to users in Arizona, California, and Nevada that hold entitlements, including present perfected rights, to such water.                 

                    Article V of the Decree of the Supreme Court of the United States in                     *Arizona*                    v.                     *California*                     dated March 9, 1964 (376 U.S. 340) requires the Secretary to compile and maintain records of diversions of water from the mainstream, of return flow of such water to the mainstream as is available for consumptive use in the United States or in satisfaction of the Mexican Treaty obligation, and of consumptive use of such water. Reclamation reports this data each year in the Decree Accounting Record.                 

Pursuant to the Criteria for Coordinated Long-Range Operation of Colorado River Reservoirs developed as a result of the Colorado River Basin Project Act of September 30, 1968, the Secretary annually consults with representatives of the governors of the Colorado River Basin States, general public and others and issues an Annual Operating Plan (AOP) for the coordinated operation of the Colorado River reservoirs. Reclamation also requires each Colorado River water user in the Lower Basin to schedule water deliveries in advance for the following calendar year (calendar year is the annual basis for decree accounting of consumptive use in the lower Colorado basin) and to later report its actual water diversions and returns to the mainstream. 

Pursuant to 43 CFR part 417, prior to the beginning of each calendar year, Reclamation consults with entities holding BCPA section 5 contracts (Contractor) for the delivery of water. Under these consultations, Reclamation makes recommendations relating to water conservation measures and operating practices in the diversion, delivery, distribution, and use of Colorado River water. Reclamation also makes a determination of the Contractor's estimated water requirements for the ensuing calendar year to the end that deliveries of Colorado River water to each Contractor will not exceed those reasonably required for beneficial use under the respective BCPA contract or other authorization for use of Colorado River water. Reclamation then monitors the actual water orders, receives reports of measured diversions and return flows from major Contractors and federal establishments, estimates unmeasured diversions and return flows, calculates consumptive use from preliminary diversions and measured and unmeasured return flows, and reports these records on an individual and aggregate monthly basis. Later, when final records are available, Reclamation prepares and publishes the final Decree Accounting Record on a calendar year basis. 

For various reasons, a user may inadvertently consumptively use Colorado River water in an amount that exceeds the amount available under its entitlement (inadvertent overrun). Further, the final Decree Accounting Record may show that an entitlement holder inadvertently diverted water in excess of the quantity of the entitlement that may not have been evident from the preliminary records. Reclamation is therefore considering an administrative policy that defines inadvertent overruns, establishes procedures that account for the inadvertent overruns and defines the subsequent requirements for pay back to the Colorado River mainstream. 

Any effects of the proposed administrative policy decision on the environment will be addressed pursuant to the National Environmental Policy Act. 

## Inadvertent Overruns 

Reclamation is proposing for the Lower Colorado River Basin an inadvertent overrun policy that would include the following features: 

a. Inadvertent overruns are those which the Secretary deems to be beyond the control of the water user; for example, overruns due to the discrepancy between preliminary and final stream flow and diversion records, or overruns due to an unanticipated but lawful use by a higher-priority water user. 

b. An inadvertent overrun is Colorado River water diverted, pumped or received by an entitlement holder in excess of the water user's entitlement for that year. The inadvertent overrun policy provides a structure to pay back the amount of water diverted, pumped or received in excess of entitlement. The inadvertent overrun policy does not create any right or entitlement to this water, nor does it expand the underlying entitlement in any way. An entitlement holder has no right to order, divert, pump or receive an inadvertent overrun. If, however, water is diverted, pumped or received inadvertently in excess of entitlement, and the Contractor's State's apportionment of Colorado River water for that year is exceeded, the inadvertent overrun policy will govern the payback. 

c. Payback will be required to commence in the calendar year that immediately follows the release date of a Decree Accounting Record that reports uses that are in excess of an individual's entitlement. 

d. Payback must be made only from measures that are above and beyond the normal consumptive use of water (extraordinary conservation measures). Extraordinary conservation measures mean actions taken to conserve water that otherwise would not return to the mainstream of the Colorado River and be available for beneficial consumptive use in the United States or to satisfy the Mexican treaty obligation. Any entitlement holder with a payback obligation must submit to Reclamation, along with its water order, a plan which will show how it will intentionally forbear use of Colorado River water by extraordinary conservation and/or fallowing measures sufficient to meet its payback obligation, which are in addition to the measures found in its Reclamation approved conservation plan. Plans for payback could also include supplementing Colorado River system water supplies with non-system water supplies. Water banked off-stream or groundwater from areas not hydrologically connected to the Colorado River or its tributaries are examples of such supplemental supplies. 

e. Maximum cumulative inadvertent overrun accounts will be specified for individual entitlement holders as 10 percent of an entitlement holder's normal year consumptive use entitlement. (Normal year means a year for which the Secretary has determined that sufficient mainstream Colorado River water is available for release to satisfy 7.5 maf of annual consumptive use in the States of California, Arizona and Nevada.) 

f. The number of years within which an overrun, calculated from consumptive uses reported in final Decree Accounting Records, must be paid back, and the minimum payback required for each year shall be as follows: 

1. In a year in which the Secretary makes a flood control release or a space building release, any accumulated amount in the overrun account will be forgiven. 

2. If the Secretary has declared a 70 R surplus in the AOP, any payback obligation will be deferred at the entitlement holder's option. 

                    3. When Lake Mead elevation is between the elevation for a 70R surplus declaration and elevation 1125 feet above mean sea level on January 1, the payback obligation must be paid back in full within 3 years, with a minimum payback that year of the greater of 20                           ( print page 4858)                        percent of the individual entitlement holder's maximum allowable cumulative overrun account amount or 33.3 percent of the total account balance.                 

4. When Lake Mead elevation is at or below elevation 1,125 feet above mean sea level on January 1, the total account balance will be paid back in full in that calender year. 

5. For any year in which the Secretary declares a shortage under the Decree, the total account will be paid back in full that calender year, and further accumulation of inadvertent overruns will be suspended as long as shortage conditions prevail. 

g. A separate inadvertent overrun account may be established in those limited cases in which a lower priority user is, or has agreed to be, responsible for consumptive uses by one or more un-quantified senior water entitlement or right holders having finite service area acreage. The separate inadvertent overrun account will be limited to a maximum cumulative amount of 10 percent of the senior right holders average consumptive use. Such inadvertent overrun accounts will be the assigned responsibility of the lower priority user. If, however, such senior entitlement or right holders' approved aggregate calendar year water orders are in excess of the specified amount above which the lower priority user will be responsible, such excess will not be deemed inadvertent and the lower priority user's water order for that year will be reduced accordingly by Reclamation. 

h. Each month, Reclamation will monitor the actual water orders, receive reports of measured diversions and return flows from Contractors and federal establishments, estimate unmeasured diversions and return flows, and project individual and aggregate consumptive uses for the year. Should preliminary determinations indicate that monthly consumptive uses by individual users, or aggregate uses, when added to the approved schedule of uses for the remainder of that year, exceed contract entitlements but are not exceeding the maximum inadvertent overrun account amount, Reclamation will notify in writing the appropriate entities that the preliminary determinations are forecasting annual uses in excess of their entitlements. 

i. During years in which an entitlement holder is forbearing use to meet its payback obligation, should preliminary determinations of monthly consumptive uses indicate that sufficient forbearance is not projected to occur, Reclamation will also notify the appropriate entitlement holders in writing that the preliminary determinations are forecasting that their annual payback obligations are not on target or being met. If this condition occurs for two consecutive years, in the second year Reclamation will advise the entitlement holder in writing by July 31, will consult with the entitlement holder on a modified release schedule and will limit releases to the entitlement holder for the remainder of the year such that by the end of the year the individual entitlement holder has met their payback obligation. 

j. Should preliminary determinations indicate that monthly consumptive uses by individual users, or aggregate uses, when added to the approved schedule of uses for the remainder of that year, exceed the individual entitlement holder's maximum cumulative overrun account amount, Reclamation will advise the entitlement holder in writing by July 31, will consult with the entitlement holder on a modified release schedule and will limit releases to the entitlement holder for the remainder of the year such that by the end of the year the individual entitlement holder's maximum cumulative overrun account amount has not been exceeded. 

k. Procedures will be established for accounting for inadvertent overruns on an annual basis and for supplementing the final Decree Accounting Record. 

Reclamation invites comments on the features noted above and in particular on: what limits might be placed on any maximum cumulative overrun account; the duration of the payback period; and from what types of water would payback be allowed. 

## Public Meetings 

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

Dated: January 12, 2001. 

Robert W. Johnson,

Regional Director, Lower Colorado Regional Office. 

[FR Doc. 01-1531 Filed 1-17-01; 8:45 am] 

BILLING CODE 4310-MN-P