Irrigation Operation and Maintenance, 11028-11041 [E8-3698]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs
• Indian Affairs Bureau

[Federal Register Volume 73, Number 41 (Friday, February 29, 2008)]
[Rules and Regulations]
[Pages 11028-11041]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-3698]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 171

RIN 1076-AD44


Irrigation Operation and Maintenance

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of the Interior, Bureau of Indian Affairs (BIA) 
is revising the regulation governing irrigation projects under its 
jurisdiction.

[[Page 11029]]

The purpose of the revision is to provide consistent administration; 
establish the process for updating practices, policies, and procedures 
for the administration, operation, maintenance, and rehabilitation of 
irrigation projects; and provide uniform accounting and recordkeeping 
procedures.
    This regulation has also been rewritten in plain English as 
mandated by Executive Order 12866. It also addresses several issues 
that the prior regulation did not cover.

DATES: Effective March 31, 2008.

FOR FURTHER INFORMATION CONTACT: John Anevski, Chief, Division of 
Irrigation, Power and Safety of Dams, Office of Trust Services, Bureau 
of Indian Affairs, 1849 C Street, NW., Mail Stop 4655-MIB, Washington, 
DC 20240; Telephone (202) 208-5480.

SUPPLEMENTARY INFORMATION: 

I. Background
II. Response to Comments
III. Subpart-by-Subpart Analysis
IV. Procedural Requirements

I. Background

    This regulation is issued under the Secretary of the Department of 
the Interior's (Secretary) authority to administer Indian irrigation 
projects under 25 United States Code (U.S.C.) 381 et seq. This revised 
regulation clarifies prior regulatory language, in keeping with the 
``plain English'' standard required by Executive Order 12866. In 
revising this regulation, redundant or unnecessary sections of the 
existing part 171 of Title 25 of the Code of Federal Regulations (CFR) 
were identified and deleted. New sections were also added to comply 
with the Inspector General's (IG) audit findings and to implement the 
provisions of the Debt Collection Improvement Act of 1996. For example, 
several IG audits, the most recent in 1996 (96-I-641), identified a 
management deficiency concerning full cost rates for operation and 
maintenance. Also, the Debt Collection Improvement Act established new 
procedures to manage moneys owed the Federal Government. This 
regulation addresses both of these issues.
    The proposed revisions to 25 CFR part 171 were first published on 
July 5, 1996 (61 FR 35167). Based on the length of time that has passed 
and changes to the earlier proposed regulation, these proposed 
revisions were published for public comment on July 17, 2006 (71 FR 
40450) with a 120-day public comment period that ended on November 14, 
2006. The re-publication provided a fresh start to the rulemaking 
process for this revision. Consultation meetings with the Indian tribes 
(Tribes) that may be impacted by this regulation were held on August 24 
and 26, 2004, and May 10 and 12, 2005. These consultation meetings were 
held in accordance with Executive Order 13175. No additional 
consultation meetings with Tribes were requested or held during the 
public comment period.

II. Response to Comments

    The Department solicited comments from all interested parties 
through its publication of the proposed regulation in the Federal 
Register on July 17, 2006 (71 FR 40450). In addition, prior to 
publication of the proposed regulation, the BIA held four tribal 
consultation meetings with affected Tribes on August 24 and 26, 2004, 
and May 10 and 12, 2005. These meetings were well-attended and the BIA 
received valuable input to help develop the proposed regulation as a 
result. Transcripts from those consultations were used in the 
development of the proposed regulation.
    The Department received written comments from one individual and 
three tribes. The comments included both general and specific 
criticisms and suggestions. The comments were carefully reviewed by the 
regulation drafting team made up of BIA employees from Central Office 
and attorneys from the Office of the Solicitor. Depending on their 
merit, the Department accepted, accepted with revision, or rejected 
comments made on each part of the regulation. Some of the comments 
included copies of previously submitted comments which were related to 
earlier versions of the proposed regulation. Because the 2006 proposed 
regulation was significantly different from earlier versions, those 
earlier comments are not specifically addressed here; however, those 
earlier comments were carefully considered in developing the latest 
version of the regulation. As noted in the part-by-part analysis below, 
certain sections of the regulation have been clarified in direct 
response to comments. Additionally, some language has been deleted or 
added to provide for increased clarity and precision. Substantive 
comments are summarized below.

III. Subpart-by-Subpart Analysis

25 CFR Part 171--Irrigation Operation and Maintenance (O&M)

    The purpose of this regulation is to provide consistent 
administration of irrigation projects under the jurisdiction of the 
BIA; establish uniform accounting and recordkeeping procedures for the 
assessment of irrigation O&M charges; and establish the process for 
updating practices, policies, and procedures for the administration, 
operation, maintenance, and rehabilitation of Indian irrigation 
projects.
    The various subparts of part 171 address the applicability of the 
regulation to individual irrigators; definition of relevant terms; the 
nature and scope of the irrigation service provided by the BIA; 
allowable uses of irrigation water; the responsibilities of irrigators 
and the BIA; assessments, billing, and collections; record-keeping and 
agreements between BIA and irrigators; and non-assessment status of 
lands within an irrigation project.
General Comments
Comment: Adequacy of Consultation
    Several commenters expressed concern that there was not adequate 
formal consultation on the proposed regulation. Formal consultations 
were held on August 24, 2004 and May 12, 2005 in Phoenix, AZ and on 
August 26, 2004 and May 10, 2005 in Billings, MT. All affected Tribes 
were invited to attend each of the four formal consultation meetings, 
and all of the meetings were well-attended. The BIA indicated its 
willingness to host consultations for individual affected Tribes or 
additional consultations with groups of Tribes upon request. None of 
the affected Tribes requested additional consultation meetings. Two of 
the commenters stated that the Walker River Paiute Tribe was not 
notified of the consultation meetings and thus could not participate. 
However, BIA records indicate that the Walker River Paiute Tribe was 
notified of all four formal consultations meetings, and in fact, three 
representatives from the Walker River Paiute Tribe attended the May 12, 
2005 consultation meeting held in Phoenix, AZ. One commenter noted that 
a water user meeting held on her reservation two months after 
publication of the proposed rule did not constitute adequate formal 
consultation. The meeting this commenter referred to was held on the 
Walker River Paiute Reservation on September 28, 2006. The purpose of 
water user meetings is for the local BIA irrigation project to consult 
with the project stakeholders on project-specific operations, 
maintenance, budget, rates, and related matters. This meeting was not 
held for the purpose of consulting with Tribes on the proposed revision 
to Part 171. One commenter noted that the consultations did not address 
project-specific operating guidelines and were therefore inadequate. 
Consultations were held for this proposed regulation. The

[[Page 11030]]

establishment of operating guidelines specific to the individual 
irrigation projects is distinct from this rule-making process. The BIA 
will be consulting with Tribes and water users in the development of 
individual project operating guidelines. No change was made to the 
regulation to address these comments.
Comment: Timing of Issuance of Final Regulation
    One commenter stated that the regulation should not be finalized 
until after the BIA proposes and discusses new project-specific 
operating guidelines. The commenter stated that studies should be 
undertaken to determine how the regulation will affect the BIA's 
ability to protect and manage Indian land and water. The establishment 
of project-specific operating guidelines is distinct from this rule-
making process. This regulation will guide the development of the 
project-specific guidelines, not the other way around. The regulation 
will not affect the BIA's ability to protect and manage Indian land and 
water. These regulations are intended to enhance our ability to 
protect, manage, and operate irrigation projects by providing new 
mechanisms for projects to begin addressing long-standing irrigation 
issues. Additionally, the project-specific operating guidelines are 
intended to provide additional and more specific guidance for 
individual projects within the overarching regulations. Thus, it is 
necessary to finalize this proposed regulation first before developing 
the more detailed, project-specific operating guidelines. In response 
to the comment suggesting that BIA study the impact of these 
regulations prior to finalizing the rule, BIA's irrigation program and 
the existing proposed regulation have already been the subject of 
numerous studies, including General Accounting Office (GAO) reports and 
IG audits. The overall impact of the revisions to the regulation are 
relatively minor. Redundant or unnecessary sections were deleted. New 
sections were added to comply with the Debt Collection Improvement Act, 
better define what items should be included in project budgets for 
better rate setting, improve lands within the irrigation projects by 
using incentive agreements, and grant Annual Assessment Waivers when 
BIA cannot deliver water to farm units. No change was made to the 
regulation to address these comments.
    One commenter noted that the Yakama Nation has a pending lawsuit in 
federal district court against the United States that questions the 
scope of BIA's authority to assess irrigation O&M charges. The 
commenter urged the BIA to delay issuance of the regulation until that 
litigation is decided. The litigation referenced--Confederated Tribes 
and Bands of the Yakama Nation v. United States, No. CV-06-3032-LRS 
(E.D. Wash.)--was dismissed on procedural grounds in December 2006. The 
Yakama Nation's request for reconsideration was denied in February 
2007. The Yakama Nation has served notice of appeal to the Ninth 
Circuit Court of Appeals purely on the procedural issues, and briefs 
were filed during the summer of 2007. If the courts were ever to 
address the substantive issues raised in the litigation it could be 
years until a judicial resolution would be obtained. Thus, the BIA does 
not believe it would be prudent to delay issuance of the regulation on 
that basis.
Comments: Plain English
    Some commenters stated that the change to ``plain English'' 
oversimplified technical concepts and made the regulation vague and 
less precise, and therefore more difficult to understand, than the 
existing Part 171. While some commenters stated the regulation is too 
simple, other commenters asserted that the regulation was too complex 
and used too much ``bureaucratic jargon.'' The proposed rule was 
written in ``plain English'' to comply with Executive Order 12866. 
Every attempt was made to make the regulation clear and easy to read, 
while not oversimplifying technical issues. The commenters did not 
provide any alternate language or suggestions for making this rule 
easier to understand. No change was made to the regulation to address 
these comments.
Comments: Small Business Regulatory Enforcement Fairness Act (SBREFA)
    Several commenters expressed concern about the statement in the 
proposed regulation regarding the Small Business Regulatory Enforcement 
Fairness Act (SBREFA) and the potential for rate increases. The BIA 
stated that this regulation will not have an annual effect on the 
economy of $100 million or more. Although Indian irrigation projects 
are significant components of reservation economy, this regulation will 
not significantly change the economy, productivity, or investment 
opportunities of State, local, or tribal governments or communities on 
the affected reservations. Nor will this regulation cause a major 
increase in costs or prices for consumers, individual industries, or 
governments. This regulation does not increase irrigation O&M 
assessment rates, and this regulation is not expected to result in 
major increases in rates in the near future. However, there is a 
potential that this regulation could result in appreciable rate 
increases in the long-term. This regulation makes no change to the 
present method of establishing rates for irrigation projects. The 
regulation more clearly states the process the BIA has always used to 
calculate rates. The underlying statutory authority to charge 
irrigation O&M assessments remains unchanged under the regulation. No 
change was made to the regulation to address these comments.
Comments: BIA Authority To Assess Irrigation O&M Charges
    Several of the commenters questioned the scope of the BIA's 
authority to charge irrigation O&M assessments. The comments came in 
various forms, some more general in nature and others more specific to 
other parts of the regulation, particularly subpart E--Financial 
Matters, Billing, and Collections. General and cross-cutting comments 
are addressed here, while more specific comments are addressed below 
under the appropriate headings.
    One commenter seemed to believe that the regulation created new 
authority for the BIA to fully recover its O&M costs for Indian 
irrigation projects in a way that it previously could not. Under 25 
U.S.C. 381 et seq., the BIA is authorized to recover the full cost of 
operation and maintenance of its irrigation facilities. This underlying 
statutory authority to assess irrigation O&M charges remains unchanged 
under the proposed regulation. No change was made to the regulation to 
address these comments.
    Two commenters read 25 U.S.C. 385 and the statutes it codifies to 
impose a requirement that the BIA first determine an individual's 
ability to pay irrigation O&M charges before setting rates and 
assessing charges. One of the commenters also suggested that the parcel 
of land on which the assessment is based must also have the ability to 
produce adequate income to pay irrigation O&M assessments. These 
comments misconstrue the Act of August 14, 1914 and 25 U.S.C. 385. The 
Secretary's authority to set O&M charges and collect irrigation 
assessments is not subject to a determination of an individual's 
ability to pay or the ability of a particular parcel of land to produce 
adequate income. The ability to pay language in both the 1914 Act and 
25 U.S.C. 385 refers only to repayment of construction costs. No change 
was made to the regulation to address these comments.

[[Page 11031]]

Comments: Trust Responsibility
    All of the commenters addressed the United States' trust 
responsibility to Indian tribes to some degree. Some questioned whether 
the regulation undermined the trust responsibility in any way, while 
others asserted a need for the regulation to expressly incorporate more 
safeguards to protect trust resources. Nothing in this regulation 
alters the BIA's responsibility regarding irrigation projects and 
related resources. Instead, this regulation addresses how the BIA 
administers its irrigation projects. Some commenters also asserted that 
there is a trust responsibility to provide irrigation service, and one 
commenter felt that such a trust responsibility required the BIA to 
charge Indian farmers a different (lower) rate than non-Indian farmers. 
The BIA does not have a trust obligation to operate and maintain its 
irrigation projects. See, e.g., Grey v. United States, 21 Cl. Ct. 285 
(1990), aff'd, 935 F.2d 281 (Fed. Cir. 1991), cert. denied, 502 U.S. 
1057 (1992). No change was made to the regulation to address these 
comments.
Comment: Protection of Trust Resources
    One commenter stated that the regulation must incorporate 
safeguards to protect trust resources. 25 CFR 171.110 describes how the 
BIA will administer its irrigation facilities. Protection of trust 
resources is addressed by other statutes or regulations specific to the 
resource at issue. No change was made to the regulation to address 
these comments.
Comment: Impacts on the Flathead Indian Irrigation Project Turnover
    One commenter expressed concern that the regulation could impact 
the transfer of operations and management of the Flathead Indian 
Irrigation Project. This regulation will have no impact on the transfer 
process, which is being undertaken pursuant to specific statutory 
authority. The terms and conditions of the transfer, which are 
currently being negotiated and developed, will address how the Flathead 
Indian Irrigation Project will be operated and managed after transfer. 
After transfer, this regulation will no longer apply to the Flathead 
Indian Irrigation Project because it will no longer be operated by the 
BIA. No change was made to the regulation to address these comments.
Comment: Impacts on Other Department Bureaus and Offices
    One commenter stated that the regulation has the potential to 
impact the operation of the Bureau of Reclamation's Yakima Project. The 
Bureau of Reclamation has reviewed this regulation. Changes to the BIA 
irrigation regulation will have no impact on the Yakima Project. No 
change was made to the regulation to address these comments.
Comment: Indian Lands in Probate
    One commenter recommended that the regulation include an O&M 
assessment exemption for Indian lands in probate. There is currently a 
process in place to resolve assessment of O&M on lands in probate 
outside the scope of this regulation. The process is covered in 25 CFR 
Part 15, Probate of Indian Estates, and the BIA Irrigation Handbook, 
Section 12.3.7 Estates/Probates. No change was made to the regulation 
to address these comments.
Comment: Idle Lands on the Yakama Reservation
    One commenter stated that the regulation must study how the 
proposed regulation would help alleviate the idle lands problem on the 
Yakama Reservation. The overall idle agricultural lands issue is a 
function of the BIA's Real Estate Services program. The regulation at 
25 CFR 171.610 provides an avenue by which the BIA, at the project 
level, may provide incentives to help alleviate some of the idle lands 
issues. Furthermore, the BIA looks forward to working with Tribes to 
explore the various options available for addressing the longstanding 
idle lands issue, such as through the individual project operating 
guidelines. No change was made to the regulation to address this 
comment.

Subpart A--General Provisions

    One comment asked that the BIA retain 25 CFR 171.1(b) from the 
existing version of 25 CFR part 171, which provided authority for the 
Officer-in-Charge to waive portions of the regulations, particularly 
for small subsistence units and gardens. This provision was removed in 
order to avoid conflicts with Departmental Delegations of Authority and 
to provide consistent application of regulations across all irrigation 
projects. No change was made to the regulation to address these 
comments.
    Three commenters had various suggestions, questions, or concerns 
with some of the definitions in Section 171.100. Those comments are 
addressed in the following paragraphs.
    With regard to the definition of the annual assessment waiver and 
carriage agreement, one commenter stated that there was no reference to 
statutory authority for waiving annual O&M assessments or for carriage 
agreements. In the ``authority'' portion of the regulation, located 
just above Subpart A in the Federal Register notice, the authorities 
for all components of the regulation are listed. 25 U.S.C. 381 et seq. 
provide statutory authority for an annual assessment waiver and for 
carriage agreements. No change was made to the regulation to address 
these comments.
    One commenter asked whether Tribes will have any input into the 
determination of farm unit size, and another commenter asked where the 
BIA's definition of a farm unit is. Additionally, one commenter stated 
that the regulation fails to state what happens if a farm unit is 
subdivided. If the farm unit size is not defined in a project's 
authorizing legislation, it will be defined in the project-specific 
operating guidelines, and the BIA will be consulting with Tribes and 
water users in the development of these operating guidelines. With 
regard to subdivision of farm units, 25 CFR 171.225 describes what must 
be done to receive irrigation service to a subdivided farm unit. No 
change was made to the regulation to address these comments.
    One commenter stated that an incentive agreement should allow for 
irrigation water delivery at no or reduced O&M cost for the period of 
time required to realize the full agricultural potential of the 
previously idle parcel. The commenter also added that he believed that 
BIA lacked authority to assess O&M if the parcel is not producing 
adequate funds to pay O&M. 25 CFR 171.610(a)(4) allows for the delivery 
of water under an incentive agreement, the terms of which would be 
described in the agreement. As discussed above, the law does not 
require the BIA to determine or consider either an individual's ability 
to pay or the economic viability of the irrigated parcel when setting 
irrigation O&M assessment rates. No change was made to the regulation 
to address these comments.
    One commenter stated that the definition of incentive agreement 
should include a reference to the statutory authority for the concept. 
In the ``authority'' portion of the regulation, located just above 
Subpart A in the Federal Register notice, the authorities for all 
components of the regulation are listed. 25 U.S.C. 381 et seq. provide 
statutory authority for an incentive agreement. No change was made to 
the regulation to address these comments.
    One commenter thought the definition of incentive agreement failed 
to adequately define ``improve idle

[[Page 11032]]

lands.'' In response to that comment, Section 171.610(a)(1) has been 
amended to include the language ``* * * other activities that will 
improve idle lands to a condition that supports authorized use of 
delivered water.''
    One commenter stated that where neither tribal nor individual water 
rights have been quantified, there can be no such thing as a 
supplemental water. Given that issue, the commenter was concerned with 
the legality of the concept of supplemental water. If a water duty has 
not been established for an irrigation project, then supplemental water 
does not apply at that irrigation project. No change was made to the 
regulation to address these comments.
    One commenter thought the definition of total assessable acres 
should include special provisions for how O&M charges are assessed on 
the Toppenish-Simcoe Unit of the Wapato Irrigation Project. The BIA has 
specifically addressed this issue with the Yakama Nation by letter of 
June 2, 2006, from Michael Olsen, Principal Deputy Assistant Secretary-
Indian Affairs to Honorable Louis Cloud. The BIA intends to include in 
the revised Project Operations and Maintenance Guidelines a provision 
substantially similar to the current 25 CFR 171.19(a)(2). Furthermore, 
project-specific provisions were removed from the regulation as part of 
the effort to create a consistent set of rules applicable to all BIA 
irrigation projects. No change was made to the regulation to address 
these comments.
    The definition of wastewater concerned one commenter. The commenter 
stated that the regulation should require water users to control return 
flows. In response to this comment, both the definition of wastewater 
and the regulation at Section 171.230 have been amended accordingly.
    One commenter stated that the BIA must specifically list each 
document referenced in Section 171.110. Section 171.110 references a 
broad array of laws, regulations, and policy documents too numerous to 
list. Furthermore, many of these items would be specific to individual 
irrigation project and thus would be inappropriate to reference in a 
regulation of general applicability. The same commenter also noted that 
the regulation should state where such documents could be obtained. A 
listing, along with copies of the pertinent documents, will be made 
available in the National Irrigation Handbook and the O&M guidelines 
specific to individual projects. To address this comment, Section 
171.110(a) has been amended to reflect that copies of the referenced 
items can be obtained from the irrigation project serving you.
    Another commenter stated that his irrigation project is not safely 
or reliably operated or rehabilitated. The commenter asked when, under 
the proposed Section 171.110(a), his project would be rehabilitated. 
The physical state of the BIA's irrigation projects is directly related 
to BIA's historic inability to recover the full cost of operating and 
maintaining its irrigation projects. This regulation is intended to 
improve the BIA's cost recovery. No change was made to the regulation 
to address these comments.
    One commenter stated that the consultation referenced in Section 
171.110(b) is a mandatory trust responsibility and that consulting only 
when appropriate or when time allows is insufficient. Consultation with 
Indian tribes is a government-wide policy, not a trust responsibility 
per se. As stated in the proposed rule, the BIA will consult with the 
Tribes and the BIA agrees that consultation is possible and desirable. 
No change was made to the regulation to address these comments.
    A number of commenters expressed concern about Section 171.125, 
which addresses appeals of the BIA's decisions on irrigation projects. 
The regulation as proposed was unclear and potentially in conflict with 
the 25 CFR Part 2. Section 171.125(b) has been amended to address these 
comments, provide clarity, and ensure consistency with the appeals 
process set forth in 25 CFR Part 2.

 Subpart B--Irrigation Service

    One commenter suggested that the regulation provide some authority 
to enable tiered O&M assessment rates on irrigation facilities to 
enable the projects to set rates based on quantity of water delivered 
to farm units. Rates for irrigation O&M are based on the cost of 
providing irrigation service, not on water quantity. Nothing in these 
proposed regulations prohibits individual projects from establishing 
various rates consistent with section 171.110. No change was made to 
the regulation to address these comments.
    With regard to Section 171.230, one commenter stated that the BIA 
should pay for the cost of improvements on Indian lands to make 
drainage water collection systems adequate. Where adequate funds exist 
to improve irrigation infrastructure, the BIA will make improvements. 
No change was made to the regulation in response to this comment. 
However, Section 171.230 has been amended in response to comments 
regarding the definition of wastewater in Section 171.100.

Subpart C--Water Use

    One commenter expressed concern that allowing the BIA to provide 
leaching service under Section 171.305 may not be a beneficial use 
under some water right decrees, tribal water codes, or water use 
statutes. The commenter expressed a similar concern with regard to the 
BIA's authority to deliver domestic water and stock water under Section 
171.310. Another commenter stated that the BIA was required to deliver 
domestic and stock water to the Walker River Paiute Tribe pursuant to a 
court decree. This regulation takes into consideration water rights and 
related considerations under Section 171.205, which states that ``[t]he 
amount of water you receive will be based on your request, your legal 
entitlement to water, and the available water supply.'' Furthermore, 
Section 171.110 describes how BIA will administer its irrigation 
facilities, which is by enforcing the applicable statutes, regulations, 
water rights decrees, and similar legal requirements, which may mandate 
``not'' delivering leaching water or permitting delivery of domestic or 
stock water in some cases. No change was made to the regulation to 
address these comments.
    One commenter stated that Section 171.305(a)(3) is a departure from 
the status quo, contrary to practices necessary in some cases to 
rehabilitate idle land within an irrigation project, and inconsistent 
with the law. The regulation is not a departure from the status quo. 
Under former Section 171.17 and now under Sections 171.545 and 171.550, 
irrigation services are not provided until the annual O&M assessment is 
paid or there is an approved payment plan in place. The regulation 
accounts for rehabilitation of idle land. Section 171.610(a)(4) allows 
for the delivery of water under an incentive agreement, the terms of 
which could include delivery of water for the purposes of leaching 
without charge. Section 171.305(a)(3) is consistent with existing law. 
As discussed elsewhere in these responses to comments, the law does not 
require the BIA to determine or consider either an individual's ability 
to pay or the economic viability of the irrigated parcel when setting 
irrigation O&M assessment rates. The BIA has the authority to deny 
irrigation service if O&M charges are not paid. No change was made to 
the regulation to address these comments.

Subpart D--Irrigation Facilities

    One commenter stated that the BIA had no legal authority for 
Section 171.400(b) because the BIA has a trust

[[Page 11033]]

responsibility to provide adequate irrigation infrastructure, including 
necessary private structures to allow access to irrigation water. The 
commenter added that, at the least, the BIA must engage in consultation 
before any structures are built. As noted above, the operation and 
maintenance of irrigation projects is not a trust responsibility. The 
BIA is committed to engaging in meaningful tribal consultation when 
appropriate. If the circumstances warrant tribal consultation, the BIA 
will consult with the affected tribe(s). No change was made to the 
regulation to address these comments.
    One commenter objected to Section 171.400(c) to the extent it 
suggests that the BIA can bill tribal members for costs relating to 
trust or Indian-owned fee land within an irrigation project. Section 
171.400, in its entirety, describes who is responsible for structures 
on a BIA irrigation project. Section 171.405 describes the process 
which an individual or group must go through to become responsible for 
an irrigation project structure ``which is under a written agreement 
between you and us.'' No change was made to the regulation to address 
these comments.
    One commenter asked that Section 171.405 be removed. The commenter 
stated that authorizing individuals to take control of irrigation 
project structures could interfere with the property rights of 
individuals or tribes owning property underlying the irrigation project 
facilities and could lead to unequal treatment between water users on a 
project. The BIA disagrees. One commenter believed that Sections 
171.405 and 171.410 contradicted Section 171.415 and, accordingly, 
suggested that the regulation should be revised to require the BIA to 
protect the irrigation facilities from encroachment. Section 171.405 
provides that authorization to take control of a structure requires a 
written agreement with the BIA. Revocable encroachment permits do not 
transfer ownership. The requirement of a written agreement qualifies 
the ability of an individual to build or assume responsibility of a 
structure. Such written agreements will ensure that individual property 
rights are not infringed upon. The BIA has determined that there are no 
inconsistencies in these sections, especially when examined in concert 
with the definition of obstruction in Section 171.100. No change was 
made to the regulation to address these comments.

Subpart E--Financial Matters

    One commenter expressed concerns that under Section 171.500, BIA 
would abuse its authority and add unreasonable costs into the 
calculation of its irrigation rates because the rates are based on cost 
estimates rather than actual costs. The commenter was particularly 
concerned about the potential for fraud, waste, and error. The 
commenter also asked how the public can obtain irrigation project cost 
information used to calculate rates. The Secretary of the Interior has 
previously determined under the existing Section 171.1(f) ``that rates 
will be based on a carefully prepared estimate of the cost of the 
normal O&M of the project.'' Furthermore, because O&M assessment rates 
are set a year in advance to give adequate notice to irrigators, it is 
necessary to calculate the proposed rates based on an estimate of the 
costs for the upcoming year. These figures are typically indexed based 
on actual costs from previous years. There is opportunity for the 
public to comment on the proposed rates published annually in the 
Federal Register before they become final. Actual costs of operation 
and maintenance activities are available from the irrigation facility 
servicing your farm unit. No change was made to the regulation to 
address these comments.
    One commenter thought that Section 171.500(a) included a number of 
costs that should not be used in calculating rates. The commenter 
feared that inclusion of items such as depreciation, acquisition costs, 
and other costs would lead to unreasonably high and unjustifiable 
rates. The BIA has established rates based on the average per acre cost 
of all activities involved in delivering irrigation water and 
maintaining facilities. This regulation does not change that practice; 
rather, it more specifically identifies those items included in 
determining the annual costs. Actual costs of O&M activities are 
available from the irrigation facility servicing your farm unit. No 
change was made to the regulation to address these comments.
    Two commenters stated that the BIA should calculate O&M assessments 
based on an individual farmer's ability to pay under 25 U.S.C. 385, 
386a, and 389. Under these statutes, the Secretary's authority to set 
O&M charges is not subject to a determination of an individual's 
ability to pay. As stated above in these responses, the ``ability to 
pay'' provision included in 25 U.S.C. 385 refers only to repayment of 
construction costs. 25 U.S.C. 385 codifies several separate provisions 
taken from the Act of August 1, 1914, Public Law 63-160, 38 Stat. 582, 
583 (1914). In addition to authorizing the Secretary to set and assess 
O&M rates on irrigation projects, the 1914 Act also appropriated a lump 
sum of money to use for construction of irrigation projects. The second 
provision of 25 U.S.C. 385, regarding reimbursement of construction 
costs where Indians have the ability to pay, only applies to the 
construction money appropriated in the 1914 Act and does not relate to 
the Secretary's O&M rate-setting authority. 25 U.S.C. 386a refers only 
to construction charges and is not applicable to this regulation, which 
only addresses O&M charges. 25 U.S.C. 389 authorizes the Secretary to 
investigate whether non-Indians have the ability to pay irrigation 
charges. Based on the outcome of such an investigation, the Secretary 
has discretion to adjust irrigation charges, but nowhere does the law 
require that an individual's ability to pay be factored into the 
irrigation rate-setting process. No change was made to the regulation 
to address these comments.
    Two commenters stated that Sections 171.500 and 171.505 violated 
the BIA's trust responsibility to Indians. As stated above, the 
operation and maintenance of BIA irrigation projects is not a trust 
responsibility. See, e.g., Grey v. United States. With regard to 
comments about protection of trust resources that might be affected by 
the operation and maintenance of irrigation projects, the proposed 
regulation in no way changes the BIA's responsibility regarding 
irrigation projects and related resources. No change was made to the 
regulation to address these comments.
    One commenter suggested that the amount of any rate increase should 
be limited from year-to-year to no more than the rate of inflation. 
Because the actual cost of O&M may or may not coincide with inflation, 
this regulation does not limit O&M rate increases to annual inflation 
rates. No change was made to the regulation to address these comments.
    One commenter objected to Section 171.505(d), which provides that 
some projects may charge a minimum O&M assessment. The commenter 
objected to owners of small fractionated parcels being charged for 
irrigation service and recommended, at a minimum, that this section not 
apply to trust or allotted land. The commenter also claimed there was 
no legal basis for the minimum charge concept and stated that the BIA 
cannot charge O&M assessments where the land is not producing adequate 
funds to pay O&M assessments. This provision only applies to irrigation

[[Page 11034]]

projects that establish a minimum assessment. The authority to 
establish a minimum charge is inherent in the Secretary's statutory 
authority to charge O&M assessments on Indian irrigation projects. See 
25 U.S.C. 381 et seq. Contrary to the assertion of the commenter, the 
BIA can charge a minimum O&M assessment regardless of the whether the 
land produces adequate funds to pay the assessment. No change was made 
to the regulation to address these comments.
    One commenter noted that Section 171.510 failed to specify which 
irrigation projects distribute supplemental water. Such information 
will be available in the project-specific operating guidelines. This 
information was purposefully left out of the regulation because it is 
potentially subject to change at individual projects as water rights 
are determined and settled. No change was made to the regulation to 
address these comments.
    Section 171.515 prompted one commenter to state that the BIA needs 
to send bills to the water users before the irrigation season starts so 
that farmers have an adequate amount of time to pay. Because each 
irrigation project sends out its own bills, this comment is most 
appropriately directed to the individual irrigation projects. No change 
was made to the regulation to address these comments.
    One commenter objected to Section 171.540. No rationale was 
provided for the objection. To conform to the Debt Collection 
Improvement Act of 1996, collection of the information specified in the 
regulation is necessary. No change was made to the regulation to 
address these comments.
    One commenter objected to Section 171.545 because it does not 
account for whether the Indian-owned land produces adequate funds to 
pay the O&M charges. As discussed above, the BIA can charge a minimum 
O&M assessment regardless of the whether the land produces adequate 
funds to pay the assessment. The BIA does not consider an individual's 
ability to pay or the ability of the land to produce adequate funds 
when it sets O&M rates and charges assessments. No change was made to 
the regulation to address these comments.
    One commenter suggested that water users should be notified 
individually through the mail of all proposed rate changes instead of 
through the Federal Register as is provided in Section 171.565. It 
would not be practical for the BIA to notify each of its water users 
individually, nor is such notice required by law. No change was made to 
the regulation to address these comments.
    Several commenters expressed concern about Section 171.575, in 
which the proposed regulation stated that the BIA could change O&M 
rates without first notifying irrigators if uncontrolled costs arose. 
Commenters were concerned that the proposed language was overly broad 
and should be limited to emergency situations when structural failures 
threatened property, public safety, or the ability of the BIA to 
deliver water to a majority of an irrigation project. In response to 
these concerns, Section 171.575 has been revised to provide for special 
assessments only when urgencies arise. Rates cannot be changed without 
notice. Special assessments are now defined in the regulation at 
Section 171.100. The term ``urgency'' is defined in Section 171.100 as 
``a situation that we have determined may adversely impact our 
irrigation facilities, operation, or other irrigation activities; 
affect public safety; damage property or equipment.''

Subpart F--Records, Agreements, and Other Matters

    One commenter raised concerns about Section 171.610. The comments 
are addressed above in the discussion of incentive agreements under 
Section 171.100. No change was made to the regulation to address this 
comment.

Subpart G--Non-Assessment Status

    One commenter objected to Section 171.705 because it places the 
burden on the land owner to apply for an annual assessment waiver. The 
commenter stated that Section 171.705 is unfair because the United 
States, as trustee, is placing a burden on the trust beneficiary to 
seek relief from O&M charges. The purpose of Section 171.705 is to help 
address the problem of areas of an irrigation project within the 
constructed works where, for whatever reason, water cannot be 
delivered. The annual assessment waiver provides a mechanism for 
waiving the O&M assessment, eliminating the need for an expensive and 
time-consuming process to appeal a bill which has already been issued. 
It also provides an incentive for an irrigation project to repair or 
rehabilitate infrastructure to obtain assessment monies. Additionally, 
it would provide relief to the water user during the time it takes for 
lands to be re-designated to Temporarily or Permanently Non-Assessable 
status if so warranted. With regard to the notion of unfairness based 
on a trust relationship, as stated above, the operation and maintenance 
of BIA Irrigation Projects is not a trust responsibility.

IV. Procedural Requirements

A. Review Under Executive Order 12866

    This regulation updates an existing regulation and is not a 
significant rule under Executive Order 12866.
    (1) This regulation will not have an effect of $100 million or more 
on the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities. This is an existing regulation that is being updated and 
revised to implement the Inspector General's audit findings and the 
Debt Collection Improvement Act of 1996.
    (2) This regulation will not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency. 
The irrigation projects impacted by these revisions are solely owned by 
the BIA and no other agency provides supplemental services or is 
impacted by the operation of these projects.
    (3) This regulation does not alter the budgetary effects of 
entitlements, grants, user fees, or loan programs or the rights or 
obligations of their recipients. The user fees or assessments that the 
BIA establishes at each irrigation project to recover its costs will 
eventually be impacted as the BIA reviews its rates and strives to 
implement full cost rates.
    (4) This rule does not raise novel legal or policy issues. No new 
authorities or policies are being established.

B. Review Under the Regulatory Flexibility Act

    The Department of the Interior certifies that this regulation will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
An initial Regulatory Flexibility Analysis is not required because 
Indian tribes are not considered to be small entities for purposes of 
this Act.

C. Review Under the Small Business Regulatory Enforcement Fairness Act 
(SBREFA)

    This regulation is not a major regulation under 5 U.S.C. 804(2), 
the SBREFA. This regulation:
    (1) Does not have an annual effect on the economy of $100 million 
or more. The total revenue stream for the operation and maintenance of 
all BIA irrigation projects is approximately $25 million annually. This 
is below the $100 million threshold.
    (2) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, state, or

[[Page 11035]]

local government agencies, or geographic regions. These revisions 
establish a procedure for identifying full cost rates for BIA 
irrigation projects. This is not expected to cause major increases in 
the near future. However, there is a potential that this could result 
in appreciable rate increases in the long-term for those served by BIA 
irrigation projects.
    (3) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. BIA 
irrigation projects are generally small and have minimal impacts on the 
economy. The projects are not in competition with other entities since 
they are located on reservations that are under the purview of the 
Department of the Interior, Bureau of Indian Affairs.

D. Review Under the Unfunded Mandates Reform Act

    This regulation does not impose an unfunded mandate on state, 
local, or tribal governments or the private sector of more than $100 
million per year. The regulation does not have a significant or unique 
effect on state, local, or tribal governments or the private sector. 
The BIA irrigation projects are located on reservations that are under 
the purview of the Department of the Interior, Bureau of Indian 
Affairs. A statement containing the information required by the 
Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

E. Review Under Executive Order 12630

    In accordance with Executive Order 12630, the regulation does not 
have significant takings implications. The regulation revisions do not 
deprive the public, state, or local governments of rights or property. 
A takings implication assessment is not required.

F. Review Under Executive Order 13211

    In accordance with Executive Order 13211, this regulation does not 
have a significant effect on the nation's energy supply, distribution, 
or use. The revision to 25 CFR part 171 will have no adverse effects on 
energy supply, distribution, or use (including a shortfall in supply, 
price increases, and increase use of foreign supplies). This regulation 
impacts irrigation projects that have little or no energy supply 
issues.

G. Review Under Executive Order 13132

    In accordance with Executive Order 13132, the regulation does not 
have sufficient federalism implications to warrant the preparation of a 
Federalism Assessment because they will not interfere with the roles, 
rights, and responsibilities of states.

H. Review Under Executive Order 12988

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this regulation does not unduly burden 
the judicial system and meets the requirements of sections 3(a) and 
3(b)(2) of the Order.

I. Review Under the National Environmental Policy Act (NEPA)

    This regulation does not constitute a major Federal action 
significantly affecting the quality of the human environment and no 
detailed statement is required under the National Environmental Policy 
Act of 1969 (42 U.S.C. 4321-4370(d)).

J. Review Under Executive Order 13175

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
have identified potential effects on Indian trust resources and they 
are addressed in this rule. Consultation meetings have been held with 
the affected Tribes. Accordingly:
    (1) We have consulted with the affected Tribes.
    (2) We have consulted with Tribes on a government-to-government 
basis and the consultations have been open and candid so that the 
affected Tribes could fully evaluate the potential impact of the rule 
on trust resources.
    (3) We have considered tribal views in the final regulation.
    (4) We have not consulted with the other bureaus and offices of the 
Department about the potential effects of this regulation on Indian 
Tribes. Other Department bureaus and offices are not affected by this 
rule.
    The BIA irrigation projects are vital components of the local 
agricultural economy of the reservations on which they are located. To 
fulfill its responsibilities to the Tribes, tribal organizations, water 
user organizations, and the individual water users, the BIA 
communicates, coordinates, and consults on a continuing basis with 
these entities on issues of water delivery, water availability, costs 
of administration, operation, maintenance, and rehabilitation. This is 
accomplished at the individual irrigation projects by project, agency, 
and regional representatives, as appropriate, in accordance with local 
protocol and procedures. The BIA Central Office held four consultation 
meetings for Tribes and tribal members. Consultation meetings were held 
on August 24, 2004 and May 12, 2005 in Phoenix, Arizona, and on August 
26, 2004 and May 10, 2005 in Billings, Montana.

K. Review Under Paperwork Reduction Act of 1995

    These regulation revisions affect the collection of information, 
which has been approved by the Office of Information and Regulatory 
Affairs, Office of Management and Budget, under the Paperwork Reduction 
Act of 1995 with the OMB Control Number 1076-0141, expiring August 31, 
2009.
    The Bureau of Indian Affairs operates 15 irrigation projects that 
provide irrigation services to the end user. The information we collect 
enables us to properly bill for the services we provide by collecting 
information that identifies the individual responsible for paying the 
costs of the services. Some of the information is needed to satisfy the 
requirements of the Debt Collection Improvement Act of 1996. The table 
addresses the services available, the number of users, the burden for 
each, as well as the yearly total and the sections in the rule that 
apply to the collection items.

----------------------------------------------------------------------------------------------------------------
                                                                                                    Salary per
                                                                     Number of                     hour ($20) x
                                   CFR section    Hourly burden     respondent     Total annual   all respondent
            Service                    171        to respondent      requests      burden hours     requests =
                                                   per request       annually                       annual cost
                                                                                                      burden
----------------------------------------------------------------------------------------------------------------
Requesting irrigation service..         200/600              0.5          26,156          13,078        $261,560
Subdividing a farm unit........             225              4                 1               4              80
Requesting leaching service....             305              1                40              40             800
Requesting water for domestic               310               .3             474             142           2,840
 or stock purposes.............
Building non-government                     405              3                67             201           4,020
 structures in BIA rights-of-
 ways..........................
Installing a fence on BIA                   410              1.5              52              78           1,560
 property or rights-of-ways....

[[Page 11036]]

 
What information must be                    530              0.2             500             100           2,000
 provided for billing purposes.
Requesting payment plans on                 550              2               126             252           5,040
 bills.........................
Establishing a carriage                     605              1                 3               3              60
 agreement (carrying third
 party water through our
 facilities to your lands).....
Negotiating an irrigation               610/615              6                21             126           2,520
 incentive lease with the BIA..
Requesting annual assessment            710/715              1               135             135           2,700
 waiver........................
                                --------------------------------------------------------------------------------
    Annual totals..............  ..............  ...............          27,575          14,159        $283,180
----------------------------------------------------------------------------------------------------------------

    We estimate that we service 6,539 users who submit information 
about 27,575 times a year. We estimate the total annual hourly burden 
to be 14,159 at an estimated cost of $283,180. The users mainly request 
water to be turned on or turned off. Users are not required to maintain 
records, but may do so for business purposes. The information they 
submit is for the purpose of obtaining or retaining a service, namely 
delivery of irrigation water. While we do require personal information 
for the purpose of adhering to the controlling laws and regulations, we 
protect the information under the Privacy Act.
    Comments on this information collection can be made at any time and 
sent to the BIA Information Collection Clearance Officer, 625 Herndon 
Parkway, Herndon, VA 20171. Please note that comments about the burden 
are separate from comments on the rule. If you wish to withhold 
personal information, such as your name, you must state this 
prominently at the beginning of you comments. We will honor your 
request to the extent that the law allows.

List of Subjects in 25 CFR Part 171

    Indians--lands, Irrigation.

    Dated: January 22, 2008.
Carl J. Artman,
Assistant Secretary--Indian Affairs.

0
For the reasons set out in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, is revising part 171 of Title 25 of 
the Code of Federal Regulations to read as follows:

PART 171--IRRIGATION OPERATION AND MAINTENANCE

Subpart A--General Provisions
Sec.
171.100 What are some of the terms I should know for this part?
171.105 Does this part apply to me?
171.110 How does BIA administer its irrigation facilities?
171.115 Can I and other irrigators establish representative 
organizations?
171.120 What are the authorities and responsibilities of a 
representative organization?
171.125 Can I appeal BIA decisions?
171.130 Who can I contact if I have any questions about these 
regulations or my irrigation service?
171.135 Where do I submit written information or requests?
171.140 Information collection.
Subpart B--Irrigation Service
171.200 How do I request irrigation service from the BIA?
171.205 How much water will I receive?
171.210 Where will BIA provide my irrigation service?
171.215 What if the elevation of my farm unit is too high to receive 
irrigation water?
171.220 What must I do to my farm unit to receive irrigation 
service?
171.225 What must I do to receive irrigation service to my 
subdivided farm unit?
171.230 What are my responsibilities for wastewater?
Subpart C--Water Use
171.300 Does BIA restrict my water use?
171.305 Will BIA provide leaching service to me?
171.310 Can I use water delivered by BIA for livestock purposes?
Subpart D--Irrigation Facilities
171.400 Who is responsible for structures on a BIA irrigation 
project?
171.405 Can I build my own structure or take over responsibility of 
a BIA structure?
171.410 Can I install a fence on a BIA irrigation project?
171.415 Can I place an obstruction on a BIA irrigation project?
171.420 Can I dispose of sewage, trash or other refuse on a BIA 
irrigation project?
Subpart E--Financial Matters: Assessments, Billing, and Collections
171.500 How does BIA determine the annual operation and maintenance 
assessment rate for the irrigation facility servicing my farm unit?
171.505 How does BIA calculate my annual operation and maintenance 
assessment?
171.510 How does BIA calculate my annual operation and maintenance 
assessment if supplemental water is available on the irrigation 
facility servicing my farm unit?
171.515 Who will BIA bill?
171.520 How will I receive my bill and when do I pay it?
171.525 How do I pay my bill?
171.530 What information must I provide BIA for billing purposes?
171.535 Why is BIA collecting this information from me?
171.540 What can happen if I do not provide this information?
171.545 What can happen if I don't pay my bill on time?
171.550 Can I arrange a Payment Plan if I cannot pay the full amount 
due?
171.555 What additional costs will I incur if I am granted a Payment 
Plan?
171.560 What if I fail to make payments as specified in my Payment 
Plan?
171.565 How will I know if BIA plans to adjust my annual operation 
and maintenance assessment rate?
171.570 What is the Federal Register and where can I get it?
171.575 Can BIA charge me special assessments?
Subpart F--Records, Agreements, and Other Matters
171.600 What information is collected and retained on the irrigation 
service I receive?
171.605 Can I establish a Carriage Agreement with BIA?
171.610 Can I arrange an Incentive Agreement if I want to farm idle 
lands?
171.615 Can I request improvements to BIA facilities as part of my 
Incentive Agreement?
Subpart G--Non-Assessment Status
171.700 When do I not have to pay my annual operation and 
maintenance assessment?
171.705 What criteria must be met for my land to be granted an 
Annual Assessment Waiver?
171.710 Can I receive irrigation water if I am granted an Annual 
Assessment Waiver?
171.715 How do I obtain an Annual Assessment Waiver?
171.720 For what period does an Annual Assessment Waiver apply?

    Authority: 25 U.S.C. 2; 25 U.S.C. 9; 25 U.S.C. 13; 25 U.S.C. 
381; Act of April 4, 1910, 36 Stat. 270, as amended (codified at 25 
U.S.C. 385); 25 U.S.C. 386a; Act of June 22,

[[Page 11037]]

1936, 49 Stat. 1803 (codified at 25 U.S.C. 389 et seq.).

Subpart A--General Provisions


Sec.  171.100  What are some of the terms I should know for this part?

    Annual Assessment Waiver means a mechanism for us to waive your 
annual operation and maintenance assessment under certain specified 
circumstances.
    Annual operation and maintenance assessment means the charges you 
must pay us for our costs of administration, operation, maintenance, 
and rehabilitation of the irrigation facility servicing your farm unit.
    Annual operation and maintenance assessment rate means the per acre 
charge we establish for the irrigation facility servicing your farm 
unit.
    Assessable acres (see Total assessable acres).
    Authorized use means your use of water delivered by us that 
supports irrigated agriculture, livestock, Carriage Agreements or other 
uses defined by laws, regulations, treaty, compact, judicial decree, 
river regulatory plan, or other authority.
    BIA means the Bureau of Indian Affairs within the United States 
Department of the Interior.
    Bill means our statement to you of the assessment charges and/or 
fees you owe the United States for administration, operation, 
maintenance, rehabilitation, and/or construction of the irrigation 
facility servicing your farm unit.
    Carriage Agreement means a legally binding contract we enter into:
    (1) To convey third-party water through our irrigation facilities; 
or
    (2) To convey our water through third-party facilities.
    Construction assessment means the periodic charge we assess you to 
repay us the funds we used to construct our irrigation facilities 
serving your farm unit that are determined to be reimbursable under 
applicable statutes.
    Customer means any person or entity to whom we provide irrigation 
service.
    Ditch (see Farm ditch or Service ditch).
    Due date means the date printed on your bill, 30 days after which 
your bill becomes past due.
    Facility (see Irrigation facility).
    Farm ditch means a ditch or canal that you own, operate, maintain, 
and rehabilitate.
    Farm unit means the smallest parcel of land for which we will 
establish a delivery point. Farm unit size is defined in the 
authorizing legislation for each irrigation facility, or in the absence 
of such legislation, we will define the farm unit size.
    I, me, my, you, and your means all interested parties, especially 
persons or entities to which we provide irrigation service and receive 
use of our irrigation facilities, such as irrigators, landowners, 
leasees, irrigator organizations, irrigation districts, or other 
entities affected by this part and our supporting policies, manuals, 
and handbooks.
    Idle lands means lands that are not currently farmed because they 
have characteristics that limit crop production.
    Incentive Agreement means a written agreement between you and us 
that allows us to waive your annual operation and maintenance 
assessment, when you agree to improve idle lands and we determine that 
it is in the best interest of our irrigation facility.
    Irrigation bill (see Bill).
    Irrigation district (see Representative organization).
    Irrigation facility means all structures and appurtenant works for 
the delivery, diversion, and storage of irrigation water. These 
facilities may be referred to as projects, systems, or irrigation 
areas.
    Irrigation service means the full range of services we provide 
customers, including but not limited to administration, operation, 
maintenance, and rehabilitation of our irrigation facilities.
    Irrigation water or water means water we deliver through our 
facilities for the general purpose of irrigation and other authorized 
purposes.
    Irrigator (see Customer).
    Landowner means a person or entity that owns fee, tribal trust, 
and/or individual allotted trust lands.
    Leaching Service means our delivery of water to you at your request 
for the purpose of transporting salts below the root zone of a farm 
unit.
    Lessee means any person or entity that holds a lease approved by us 
on lands to which we provide irrigation service.
    Must means an imperative or mandatory act or requirement.
    My land and your land mean all or part of your farm unit.
    Obstruction means anything permanent or temporary that blocks, 
hinders, impedes, stops or cuts off our facilities or our ability to 
perform the services we determine necessary to provide service to our 
customers.
    Organization (see Representative organization).
    Past due bill means a bill that has not been paid within 30 days of 
the due date stated on your bill.
    Permanently non-assessable acres (PNA) means lands that the 
Secretary of the Interior has determined to be permanently non-
irrigable pursuant to the standards set out in 25 U.S.C. 389b.
    Representative organization or organization means a legally 
established organization representing your interests that confers with 
us on how we provide irrigation service at a particular irrigation 
facility.
    Service(s) (see Irrigation service).
    Service area means lands designated by us to be served by one of 
our irrigation facilities.
    Service ditch means a ditch or canal which we own, administer, 
operate, maintain, and rehabilitate that we use to provide irrigation 
service to your farm unit.
    Soil salinity means soils containing high salt content that limit 
crop production.
    Special assessment means a charge to cover the uncontrolled cost 
arising from an urgency on an irrigation facility.
    Structures (see Irrigation facility).
    Subdivision means a farm unit that has been subdivided into smaller 
parcels.
    Supplemental water means water available for delivery by our 
irrigation facilities beyond the quantity necessary to provide all 
project customers requesting water with the per-acre water duty 
established for that project.
    Taxpayer identifying n