Regulating the Use of Lower Colorado River Water Without an Entitlement, 40916-40932 [E8-16001]

Download as PDF 40916 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules DEPARTMENT OF THE INTERIOR Bureau of Reclamation 43 CFR Part 415 RIN 1006–AA50 Regulating the Use of Lower Colorado River Water Without an Entitlement Bureau of Reclamation, Interior. ACTION: Notice of proposed rulemaking. 89006–1470, Attention: Area Manager, Boulder Canyon Operations Office, Mail Code BCOO–1000. Please include the number 1006–AA50 and the Docket ID (BOR–2008–0001) in your correspondence. FOR FURTHER INFORMATION CONTACT: Margot Selig, 702–293–8192. SUPPLEMENTARY INFORMATION: mstockstill on PROD1PC66 with PROPOSALS2 AGENCY: I. Background SUMMARY: The Bureau of Reclamation (Reclamation) proposes to address and eliminate the use of Colorado River water from the mainstream in the lower Colorado River basin (Lower Basin) without an entitlement. For the last eight years, the upper and lower Colorado River basins have experienced the worst drought conditions in approximately one hundred years of recorded history. This drought is the first sustained drought to be experienced on the Colorado River when all major storage facilities are in place and when Arizona, California, and Nevada (Lower Division States) are fully utilizing their basic Colorado River water apportionment of 7.5 million acrefeet per year. Reclamation believes that development of such a rule will help ensure the long-term sustainability of the lower Colorado River and in doing so will protect the water rights of lower Colorado River water entitlement holders. The rule establishes procedures that Reclamation will follow in making determinations of unlawful use of lower Colorado River water. The rule includes notice and appeal procedures for those persons or entities whose use of lower Colorado River water is identified as unlawful. Reclamation is seeking comments on the proposed rule including comments that identify any specific economic impacts to members of the public and to small businesses located within the boundary of the river aquifer. The comments should include any identified or potential economic impacts and the estimated costs of the impacts. DATES: Submit comments on the rule by September 15, 2008. ADDRESSES: You may submit comments on the rule, identified by number 1006– AA50, by one of the following methods: —Use of the Federal e-rulemaking Web site: http://www.regulations.gov. The notice has been assigned Docket ID: BOR–2008–0001. Follow the instructions for submitting comments using this Docket ID number. —By mail to: Bureau of Reclamation, P.O. Box 61470, Boulder City, NV Legal System for Use of Colorado River Water in the Lower Basin. The Colorado River is the primary source of water for irrigation, municipal, and industrial uses in the Lower Basin within the Lower Division States. Colorado River water is stored behind Hoover Dam, authorized by the Boulder Canyon Project Act of 1928 (BCPA), for delivery and beneficial use in the United States. In addition, water stored by Hoover Dam is released pursuant to the United States 1944 Treaty with Mexico which addresses the use of the Colorado, Rio Grande, and Tijuana Rivers. To lawfully use water from the mainstream of the lower Colorado River, a person or entity must have an entitlement. An entitlement authorizes a person or entity to use water from the lower Colorado River for beneficial use and exists in one of three forms: (a) A decreed right as described in the Consolidated Decree entered by the United States Supreme Court in Arizona v. California, 547 U.S. 150 (2006) (Supreme Court Decree), (b) a contract with the Secretary of the Interior (Secretary), or (c) a Secretarial Reservation of Colorado River water. An entitlement to use lower Colorado River water specifies the quantity of water which may be used, the purpose for which the water may be used, and the location where the use may occur. Any diversion or consumptive use of lower Colorado River water without an entitlement is unlawful. The BCPA and the Supreme Court Decree require a Colorado River water user in the Lower Basin to have a contract with the Secretary for the storage, delivery, and use of such water. The Regional Director of Reclamation’s Lower Colorado Region enters into water delivery contracts with water users in Arizona, California, and Nevada on behalf of the Secretary. The BCPA and the Reclamation Act of 1902 authorize the Secretary to prescribe such rules and regulations necessary to carry out provisions of law. The Supreme Court Decree requires the United States to account for all mainstream Colorado River water use in the Lower Basin. Pursuant to this VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 requirement, Reclamation prepares and maintains complete, detailed, and accurate records of all known diversions, return flow, and consumptive use of Colorado River water in the Lower Basin on an annual basis. These accounting records include all diversions and use of Colorado River water in Arizona, California, and Nevada, whether or not currently authorized by an entitlement. All reported Colorado River water use in a state is required by the Supreme Court Decree to be accounted for against the amount of Colorado River water available in that state during that year. The Supreme Court Decree specifies that consumptive use of Colorado River water in the Lower Basin includes water drawn from the mainstream by underground pumping. Technical Issues To Be Addressed. Current data show that Colorado River water used in the Lower Basin without an entitlement outside of existing lower Colorado River water delivery service areas ranges between 9,000 and 15,000 acre-feet per year. The amount of lower Colorado River water pumped by wells and river pumps within service areas that is not accounted for under existing entitlements is unknown. The largest amount of water being unlawfully used from the Colorado River in the Lower Basin occurs via underground pumping for irrigation use from wells located on the floodplain. The majority of water users who are using lower Colorado River water without an entitlement consist of households which pump small amounts of water for domestic use from wells located on the floodplain. At Reclamation’s request, the United States Geological Survey (USGS) has developed a method to identify wells that pump water that is replaced by water drawn from the lower Colorado River. The USGS method identifies a River Aquifer and a theoretical accounting surface within the River Aquifer. The River Aquifer extends outward from the Colorado River until encountering a geologic barrier to groundwater flow and encompasses the water bearing materials from which water can move to and from the lower Colorado River. The accounting surface was developed with a groundwater model and represents the elevation and extent of the river aquifer that is in hydraulic connection with the lower Colorado River. The accounting surface extends outward from the exterior boundary of the Colorado River floodplain to the exterior limit of the River Aquifer. Several thousand wells are located within the boundary of the River Aquifer. The USGS is performing a well inventory within the boundary of E:\FR\FM\16JYP2.SGM 16JYP2 mstockstill on PROD1PC66 with PROPOSALS2 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules the River Aquifer to identify river pumps and wells that can draw water directly from the lower Colorado River or pump water that would be replaced by water drawn from the lower Colorado River. Wells in the floodplain pump water directly from the lower Colorado River. The accounting surface is the area within which Reclamation will apply the USGS method to determine whether water pumped from a well is replaced with water drawn from the lower Colorado River. Reclamation will also evaluate whether unique hydrologic circumstances in some areas along the lower Colorado River merit an exception to the USGS methodology. Need to Curtail Unlawful Use of Colorado River Water in the Lower Basin. One of Reclamation’s legal obligations and administrative priorities is to ensure that all Colorado River water use in the Lower Basin is covered by an entitlement and correctly accounted for within each Lower Division State’s apportionment. Each Lower Division State’s apportionment of Colorado River water is limited; thus, unlawful use harms that state’s entitlement holders by using water that those entitlement holders could legally use otherwise. This fact leads Reclamation to conclude that this rulemaking is necessary and appropriate. Additionally, each Lower Division State is fully utilizing its respective apportionment and the prolonged period of drought in the Colorado River Basin has reduced the amount of water stored in Colorado River reservoirs. Content of Rule. The rule provides a framework for identifying and curtailing the use of mainstream Colorado River water in the Lower Basin without an entitlement. The rule will: (a) Establish the methodology that Reclamation will use to determine if a well pumps water that is replaced with water drawn from the lower Colorado River; (b) establish the criteria a water user must satisfy to demonstrate that his or her well does not pump water that is replaced with water drawn from the lower Colorado River; and (c) establish a process for a water user to appeal a determination that a specific well pumps water that would be replaced by water drawn from the lower Colorado River. In the rule, Reclamation will inform unlawful users about the existence of various options to bring their use of Colorado River water in the Lower Basin into compliance with Federal law. Below are several options that Reclamation will consider: (a) Some water may be available under the three Lower Division States’ apportionments. VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 (1) Arizona: Some lower Colorado River water may be available for allocation in Arizona. Reclamation intends to consult with Arizona Department of Water Resources (ADWR) to determine if some of Arizona’s Colorado River water could be committed for use by persons or entities in Arizona whose Colorado River water use is found to be unlawful. For the purposes of this rule, a water delivery contract between ADWR and Reclamation may satisfy the contract requirement for multiple individual water users and eliminate the need for contracts between the United States and the individual water users. (2) California: All Colorado River water apportioned for use in California is already under permanent contract. However, a small amount of water is available for domestic use in California through the Lower Colorado Water Supply Project (LCWSP). Unlawful users in California who are eligible for domestic use in California and who wish to participate under the LCWSP must enter into a water delivery subcontract with the City of Needles. The City of Needles is the only entity authorized to enter into a standard form subcontract for delivery of this water supply to LCWSP beneficiaries. (3) Nevada: All Colorado River water apportioned for use in Nevada is already under permanent contract. Any commitment to recognize new uses of Colorado River water in Nevada would be subject to terms established by the Southern Nevada Water Authority (SNWA). SNWA has an existing entitlement to the delivery and use of any Colorado River water not previously committed for use by other Nevada water users. (b) A water user may be able to obtain an entitlement through an assignment, transfer, or lease from an existing entitlement holder within that state. An assignment, transfer, or lease must be approved by Reclamation. (c) A water user may be able to obtain a right to use water as a customer of an existing entitlement holder. The place of water use must be included within the entitlement holder’s service area and the inclusion must be approved by Reclamation. (d) A water user may be able to acquire a different source of water that is not hydraulically connected to the lower Colorado River. The rule emphasizes the options for bringing one’s use of lower Colorado River water into compliance with Federal law. However, under the rule, individuals or entities who continue to use lower Colorado River water without an entitlement will be reported to the PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 40917 United States Supreme Court by the Regional Director. The Regional Director will work with the United States Department of Justice to seek Federal court orders requiring these users to cease using water from the lower Colorado River without an entitlement. The proposed rule was preceded by an Advance Notice of Proposed Rulemaking (ANPR), published in the Federal Register on August 18, 2006 (71 FR 47763), under the title, ‘‘Regulating Non-Contract Use of Colorado River Water in the Lower Basin.’’ The ANPR provided for a public comment period that ran from August 18, 2006, through October 17, 2006. Reclamation received 21 letters during the comment period. Nine letters were requests to be placed on a mailing list. Twelve letters contained comments on the ANPR. The commentators included one Indian tribe, three state agencies, one interstate agency, one farmers’ organization, one commercial business, two private individuals, one irrigation and electrical district organization, one water authority, and one municipality. Reclamation reviewed and analyzed all comments. The commentators generally support the development of a rule to address the use of Colorado River water in the Lower Basin without an entitlement. However, one commenter questioned the need for a rule since existing law is sufficient to bring unlawful users into compliance; this commenter requests further evaluation of the accounting surface around Lake Mead. One commenter desires a monitoring process, determination of required frequency for field data collection, updates to the USGS accounting surface model, and peer review of the USGS accounting surface methodology; this commenter is also concerned about the timing related to the replacement of water by Colorado River water when pumped by a well. For example, in certain areas of the River Aquifer in Arizona, the accounting surface boundary is 30 miles from the mainstream. One commenter said that unlawful users must have a means to bring their use into compliance with Federal law. One commenter said the rule should identify the point at which tributary water becomes part of the mainstream and address water from lakes and ponds fed from the mainstream through the subsurface. This commenter further added that the rule must provide for due process, and establish some type of enforcement ability to cause unlawful users to cease and desist from using mainstream water. Several commentators stated the necessity for E:\FR\FM\16JYP2.SGM 16JYP2 mstockstill on PROD1PC66 with PROPOSALS2 40918 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules Reclamation to recognize the existence of unique hydrological circumstances in some areas of the lower Colorado River which could merit exemption to the River Aquifer/accounting surface methodology. All of the comments received on the ANPR are addressed in the proposed rule. The rulemaking process provides an opportunity to (a) provide for public review and comment on the River Aquifer/accounting surface methodology; (b) adopt the River Aquifer/accounting surface methodology; (c) establish procedures for determining unlawful use; (d) develop notice and administrative appeal procedures; and (e) provide options for unlawful users to legalize their lower Colorado River water use. Reclamation is seeking comments on the proposed rule including comments that identify any specific economic impacts to members of the public and to small businesses located within the boundary of the river aquifer. The comments should include any identified or potential economic impacts and the estimated costs of the impacts. USGS reports WRIR 94–4005 and WRIR 00–4085 were extensively reviewed through the USGS peer review and report publishing process. The frequency of field data collection for the well inventory is not predetermined. Field data collection is expected to be a continuous process to ensure that all wells are identified and inventoried, including those that have been drilled after the initial field data collection was completed for a given area. Also, the frequency for field data collection for any given area will be determined by Reclamation dynamically, based upon such parameters as significant changes in river conditions, development, population, political considerations, and availability of funding and staff. The timing of depletions from wells distant from the lower Colorado River has been addressed cooperatively by Reclamation and the USGS using numerical modeling techniques. The USGS is expected to produce a peerreviewed ‘‘Scientific Investigations Report’’ concerning this matter in July 2008. The only area Reclamation currently considers unique enough to warrant exemption from the River Aquifer/ accounting surface method is the Yuma, Arizona area near the City of Yuma and south to the Southerly International Boundary (SIB) between the United States and Mexico. The Yuma area is hydrologically unique because it is a river delta environment, not a river environment. In the deltaic environment of the Yuma area, much of the water VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 diverted from the Colorado River and applied to the ground for irrigation does not naturally return to either the Colorado River above the Northerly International Boundary (NIB) between the United States and Mexico or the Limotrophe section (the section of the lower Colorado River which forms the international boundary between the United States and Mexico from the NIB to the SIB) as surface water. Water which does not return to either the Colorado River above the NIB or the Limotrophe section as surface water is not available for diversion in the United States or for satisfaction of the Mexican water treaty. In the Yuma area, much of the water diverted from the Colorado River and applied to the ground for irrigation flows underground across the SIB and Limitrophe section boundaries into Mexico. A unique set of criteria governing this area is included in this rule at section 415.12. Should unique hydrological circumstances be identified elsewhere within the River Aquifer, Reclamation will likewise consider whether or not these circumstances would merit an exception to the USGS methodology. Information regarding the geographical applicability of the rule can be found in Subpart B of the rule and Figures 1 through 7. II. Procedural Requirements 1. Regulatory Planning and Review (Executive Order (E.O.) 12866) The Office of Management and Budget (OMB) has determined that this rule is not a significant rule and has not reviewed it under the requirements of E.O. 12866. We have evaluated the impacts of this rule as required by E.O. 12866 and have determined that it is not a significant regulatory action. The results of our evaluation follow: (a) This rule will not have an annual effect of $100 million or more on the economy. It will not adversely affect in any material way the economy, productivity, competition, jobs, environment, public health or safety, or State, local, and tribal governments or communities. This rule will protect lawful entitlements to use water from the lower Colorado River by providing a method for identifying and reporting persons and entities unlawfully using such water. Reclamation will incur ongoing administrative costs to monitor and address unlawful use of lower Colorado River water. Activities related to monitoring and addressing unlawful use of lower Colorado River water must be performed with or without promulgation of the rule for Reclamation to remain in compliance PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 with Colorado River law. The Federal cost incurred to monitor and address unlawful use of lower Colorado River water is not incremental to the rule. Water users who are using lower Colorado River water without an entitlement may incur costs to bring their lower Colorado River water use into compliance with Federal law. The type and amount of costs will vary among water users depending upon the state in which their well or river pump is located, the manner in which a water user chooses to acquire an entitlement if appropriate, whether or not their well or river pump is located within the boundaries of an entitlement holder’s service area, and the fees assessed by the entitlement holder. (b) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Under the BCPA, the United States Congress allocated among the Lower Division States the mainstream water in the lower Colorado River to which they were entitled under the Colorado River Compact of 1922. Through the BCPA, the Congress uniquely authorized the Secretary to accomplish the allocation of Colorado River water among the Lower Division States by empowering the Secretary to enter into contracts for the delivery of water and by providing that no person shall have or be entitled to have the use of Colorado River water without a contract. The United States Supreme Court validated these and other provisions of the BCPA in the June 3, 1963 United States Supreme Court Opinion in Arizona v. California (376 U.S. 546) and the Supreme Court Decree. In the Supreme Court Decree the Secretary is charged with, among other things, accounting for and reporting the consumptive use of Colorado River water diverted directly from the mainstream and/or through underground pumping. Reclamation performs water contracting and water accounting responsibilities on behalf of the Secretary. No other agency in the United States performs these functions on the lower Colorado River. (c) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients; all of these will continue unaffected by the issuance of this rule. (d) This rule does not raise any novel legal or policy issues. This rule will not implement requirements upon users of lower Colorado River water that do not already exist. E:\FR\FM\16JYP2.SGM 16JYP2 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules 2. Regulatory Flexibility Act The Department of the Interior (Interior) certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). This rule imposes no requirements upon small governments (including Native American communities), small entities such as water purveyors or associations, individual lower Colorado River water entitlement holders or lawful water users that are not already imposed by the BCPA and the Supreme Court Decree concerning the use of lower Colorado River water. This rule does not impose a requirement for small entities to report or keep records on any of the requirements contained in this rule other than the type of recordkeeping regarding lower Colorado River water use that is already required by water delivery contracts with the Secretary. You may obtain a copy of the Initial Regulatory Flexibility Analysis by contacting us at the address in the Addresses section. Development of a Small Entity Compliance Guide is not required. mstockstill on PROD1PC66 with PROPOSALS2 3. Small Business Regulatory Enforcement Fairness Act (SBREFA) This rule is not a major rule under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule: (a) Does not have an annual effect on the economy of $100 million or more. Under the Benefit-Cost Analysis/ Unfunded Mandates Reform Act Analysis performed to evaluate the potential economic impacts of this rule the estimated net present value of the impact to the economy from 2008 through 2027 ranges between $256,313 to $3,742,363 under a real discount rate of 7.0 percent and $340,804 to $5,375,118 under a real discount rate of 3.0 percent. The estimated economic impacts over the 20-year period of the study are associated with costs that may be incurred when unlawful users of lower Colorado River water incur costs to either obtain a lower Colorado River water entitlement or become a customer of a lower Colorado River water entitlement holder. Federal costs related to oversight of unlawful use of lower Colorado River water will be incurred with or without the rule in fiscal years 2008 through 2010. (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The estimated economic impacts are not significant. This rule does not impose new VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 requirements regarding the lawful use of lower Colorado River water. (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreignbased enterprises. The potential economic impacts incurred by lower Colorado River water users who are unlawfully using lower Colorado River water are not significant. This rule establishes procedures that Reclamation will use to determine if a well pumps water that is replaced by water drawn from the lower Colorado River. 4. Unfunded Mandates Reform Act This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more annually. This rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. This rule imposes no requirements regarding the lawful use of lower Colorado River water that are not already imposed by the BCPA and the Supreme Court Decree. You may obtain a copy of the Benefit-Cost Analysis/Unfunded Mandates Reform Act Analysis for Proposed Rulemaking by contacting us at the address in the ADDRESSES section. Therefore, a statement containing information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531, et seq.) is not required. 5. Takings (E.O. 12630 and E.O. 13406) Under the criteria in E.O. 12630 and E.O. 13406, this rule does not have any significant takings implications. A Takings Implication Assessment is not required. This rule will protect valid water rights and help to ensure the longterm sustainability of the resource. For water users far from the river channel or reservoirs and who are pumping groundwater outside of the lower Colorado River floodplain, this rule provides for a test which can determine if water pumped by a well is replaced by water drawn from the mainstream of the lower Colorado River. The test is based upon the lower Colorado River accounting surface developed by the USGS. If, according to the test, the well is drawing water from the mainstream of the lower Colorado River, the well user must have an entitlement to use the water. This rule provides information explaining how to acquire an entitlement to use lower Colorado River water. This rule also explains the steps that Reclamation will take against a person or entity for failure to stop using lower Colorado River water unlawfully. PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 40919 6. Federalism (E.O. 13132) Under the criteria in E.O. 13132, the proposed rule does not have any federalism implications to warrant the preparation of a Federalism Assessment. The rule is not associated with, nor will it have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. A Federalism Assessment is not required. 7. Civil Justice Reform (E.O. 12988) This rule complies with the requirements of E.O. 12988. Specifically, this rule: (a) Does not unduly burden the judicial system; (b) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (c) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards. 8. Consultation With Indian Tribes (E.O. 13175) Under E.O. 13175, Reclamation has evaluated this rule and determined that it would have no substantial effects on federally recognized Indian tribes. Reclamation consulted with the Indian tribes that are located on the mainstream of the lower Colorado River on November 1, 2006, to discuss the objectives of this rule and to hear questions and concerns on the part of Indian tribes. 9. Paperwork Reduction Act This rule does not require collection of new or additional information from the public other than what is already required from Colorado River water entitlement holders regarding their water use. A submission under the Paperwork Reduction Act is not required. 10. National Environmental Policy Act of 1969 (NEPA) This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental assessment consistent with NEPA requirements has been prepared and is summarized below. This rule does not require construction of water diversion, delivery, treatment, or storage facilities. This rule does not impact cultural resources or threatened or endangered species. This rule may improve the long-term sustainability of the lower Colorado River by establishing E:\FR\FM\16JYP2.SGM 16JYP2 40920 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules procedures which enable Reclamation to identify unlawful users of lower Colorado River water. You may obtain a copy of the environmental assessment by contacting us at the address in the ADDRESSES section or you may find the environmental assessment on Reclamation’s Web page at http:// www.usbr.gov/lc/. 11. Information Quality Act Dated: July 9, 2008. Timothy R. Petty, Acting Assistant Secretary for Water and Science. Illustrations to Part 415 For the reasons stated in the preamble, the Bureau of Reclamation proposes to add a new part 415 to Title 43 of the Code of Federal Regulations to read as follows: Subpart A—Purpose, Definitions, and Applicability In developing this rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106– 554). PART 415—REGULATING THE USE OF LOWER COLORADO RIVER WATER WITHOUT AN ENTITLEMENT 12. Effects on the Energy Supply (E.O. 13211) Sec. 415.1 What is the purpose of this part? 415.2 What terms are used in this part? 415.3 What is the difference between lawful and unlawful use of lower Colorado River water? 415.4 How do I know if the water I use is subject to this part? 415.5 How will the river aquifer/accounting surface methodology be applied? This rule is not a significant energy action under the definition in the E.O. 13211. A Statement of Energy Effects is not required. 13. Clarity of This Regulation We are required by E.O. 12866 and E.O. 12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means each rule we publish must: (a) Be logically organized; (b) Use the active voice to address readers directly; (c) Use clear language rather than jargon; (d) Be divided into short sections and sentences; and (e) Use lists and tables wherever possible. If you believe these requirements have not been met, please send comments to Reclamation as instructed in the ADDRESSES section. Please make your comments as specific as possible, referring to specific sections and how they could be improved. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you believe lists or tables would be useful, etc. mstockstill on PROD1PC66 with PROPOSALS2 14. Public Availability of Comments Before including your name, address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. List of Subjects in 43 CFR Part 415 Water resources, Water supply. VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 Subpart A—Purpose, Definitions, and Applicability Subpart B—Determining the Status of a Well 415.10 How do I determine if my well is in the floodplain? 415.11 How do I determine if my well is outside the floodplain but drawing water out of the lower Colorado River? 415.12 How do I determine the status of my well if it is located in the Yuma accounting area? Subpart C—Adjustments to the River Aquifer, Floodplain, or the Accounting Surface 415.20 What conditions may cause adjustments to the river aquifer boundaries and the elevation values which define the accounting surface? 415.21 How will Reclamation make adjustments to the Yuma accounting area? Subpart D—Notification of Well Status 415.30 What is the procedure for determining the status of my well and how will I be notified? 415.31 How may I challenge the determination of my well status? Subpart E—Bringing Your Use of Lower Colorado River Water Into Compliance With Federal Law 415.40 How may I lawfully use water from the lower Colorado River? 415.41 Will compliance with Federal law incur any cost for which I will be responsible? 415.42 What is the role of an existing entitlement holder under this part? 415.43 Is this part applicable to existing lower Colorado River water delivery contracts? Subpart F—Penalty for Noncompliance 415.50 What if I continue to use water from the lower Colorado River without an entitlement? PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 Authority: 5 U.S.C. 552; 43 U.S.C. 373, 485, 617. § 415.1 What is the purpose of this part? This part protects lawful entitlements to use water from the lower Colorado River by providing a method for identifying persons and entities unlawfully using such water. § 415.2 What terms are used in this part? Accounting surface means the elevation and slope of the unconfined static water table in the river aquifer outside the floodplain and the reservoirs of the lower Colorado River that would exist if the lower Colorado River were the only source of water to the river aquifer. The accounting surface extends outward from the edges of the floodplain or a reservoir to the subsurface boundary of the river aquifer from the mouth of the Grand Canyon to just north of the Southerly International Boundary (SIB). In the Yuma accounting area, the use of the accounting surface is superseded as determined by Reclamation. Accounting year means January 1 through December 31. Boulder Canyon Project Act of 1928 (BCPA) means the act which established the responsibilities of the Secretary of the Interior to direct, manage, and coordinate the operation of Colorado River dams and related works in the Lower Basin. Colorado River water means water in or withdrawn from the mainstream of the Colorado River, including the following: (1) Water in the surface channels and reservoirs of the Colorado River; (2) Water in the floodplain drains; (3) Water beneath the Colorado River floodplain; and (4) Water withdrawn from beneath the accounting surface. Domestic use means the use of Colorado River water for household, stock, municipal, mining, milling, industrial and other like purposes, excluding the generation of electrical power. Floodplain means that part of the lower Colorado River valley that has been covered by floods of the modern lower Colorado River as it meandered prior to construction of Hoover Dam. The floodplain commonly is bounded by terraces and alluvial slopes that rise to the foot of the mountains that rim the valley. In the Yuma area, the floodplain includes the floodplain of the Gila River from the Laguna and Gila Mountains to E:\FR\FM\16JYP2.SGM 16JYP2 mstockstill on PROD1PC66 with PROPOSALS2 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules the confluence with the lower Colorado River. Lower basin means the lower Colorado River basin, which includes those parts of Arizona, California, Nevada, New Mexico, and Utah within and from which waters naturally drain into the Colorado River below Lee Ferry. The lower basin also includes parts of those same states that are located outside the drainage area of the Colorado River that are or can be beneficially served by waters diverted from the Colorado River below Lee Ferry. Lower Colorado River water means mainstream water. Lower Division States means Arizona, California, and Nevada. Mainstream means the main channel of the Colorado River downstream from Lee Ferry within the United States. The mainstream includes the reservoirs behind dams on the main channel and Senator Wash Reservoir off the main channel. Mainstream water means (1) Water drawn or diverted from the main channel of the lower Colorado River, exclusive of tributaries, within the United States downstream from Lee Ferry (including the areas covered by reservoirs, wetlands, lakes, ponds, and backwaters); (2) Water withdrawn by a well within the boundary of the floodplain portion of the lower Colorado River aquifer; and (3) Within the boundary of the accounting surface portion of the lower Colorado River aquifer, water withdrawn from a well with a static water level indistinguishable from or less than the elevation of the accounting surface at the well site. NIB means the Northerly International Boundary with Mexico. Normal flow conditions mean that releases from Hoover Dam are made in accordance with downstream requirements to satisfy 7.5 million acrefeet of consumptive use in the United States and a delivery of 1.5 million acrefeet to Mexico. Regional Director means the Regional Director, Lower Colorado Region, Bureau of Reclamation, Boulder City, Nevada. River aquifer means the unconfined aquifer that consists of the saturated, permeable sediments and sedimentary rocks that are hydraulically connected to the lower Colorado River so that water can move between the lower Colorado River and the aquifer in response to withdrawal of water from the aquifer or differences in water level elevations between the lower Colorado River and the aquifer. The river aquifer consists of the aquifer underlying the VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 lower Colorado River’s floodplain and the accounting surface. The river aquifer has been delineated from the mouth of the Grand Canyon to SIB. SIB means the Southerly International Boundary with Mexico. Static water elevation means the nonpumping elevation of the water in a well, measured as the elevation of the ground, or other appropriate elevation reference, less the depth to water in the well with the pump turned off and the water elevation in the well recovered to the non-pumping elevation. Tributary water is water that enters the mainstream or the river aquifer from a source other than the Colorado River. USGS means the United States Geological Survey of the Department of the Interior. Wells with a static water elevation that cannot be distinguished from the accounting surface means wells that have a static water elevation which is within ± 0.84 feet from the accounting surface elevation in the area of the well. Yuma accounting area means the area in Arizona generally downstream from the confluence of the Gila River, on the Yuma Mesa, and the Yuma Valley. This area is delineated in Figure 7 of this part. § 415.3 What is the difference between lawful and unlawful use of lower Colorado River water? (a) A person or entity may lawfully use water from the lower Colorado River only under an entitlement. An entitlement means an authorization to use water from the lower Colorado River water as described in: (1) The Consolidated Decree entered by the United States Supreme Court in Arizona v. California in March of 2006, as supplemented or amended; (2) A water delivery contract with the Secretary of the Interior; or (3) A reservation of water by the Secretary of the Interior. (b) If you are using water from the lower Colorado River without an entitlement, you are using water unlawfully. You must obtain an entitlement or you must stop using water from the lower Colorado River. § 415.4 How do I know if the water I use is subject to this part? (a) This rule applies to you if you use water from the mainstream of the lower Colorado River within the States of Arizona, California, or Nevada. The lower Colorado River begins at Lee Ferry, Arizona, which is located 17.3 miles downstream from Glen Canyon Dam. The mainstream of the lower Colorado River includes all water in the river channel and all water in any PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 40921 reservoir on the lower Colorado River. Water in the mainstream of the lower Colorado River originates from many sources both above and below the ground. When surface water from tributary valleys reaches the mainstream of the lower Colorado River, it becomes Colorado River water. When tributary water commingles with Colorado River water beneath the floodplain, it becomes mainstream water. Tributary water that commingles with groundwater beneath the accounting surface, where the elevation of the water table is below or cannot be distinguished from the elevation of the accounting surface, is considered mainstream water. (b) You are using mainstream water from the lower Colorado River if you divert any water out of the river channel; for example, by a diversion dam, a river pump, or a hose. You are using mainstream water from the lower Colorado River if you are diverting water out of a reservoir, such as Lake Mead, Lake Mohave, or Lake Havasu. You are using mainstream water from the lower Colorado River if you operate a well located in the river’s floodplain, because that well draws water directly from the mainstream. You are using mainstream water from the lower Colorado River if you operate a well located outside the floodplain and your well pumps water that is replaced by water drawn from the lower Colorado River, as determined by the river aquifer/accounting surface methodology. § 415.5 How will the river aquifer/ accounting surface methodology be applied? (a) Your well must be located within the exterior boundary of the river aquifer to potentially pump water from the lower Colorado River. The river aquifer extends from Lake Mead downstream to SIB and laterally into adjacent areas generally until encountering a barrier to subsurface flow. The river aquifer contains two smaller areas called the floodplain and the accounting surface. The accounting surface exists within the river aquifer and extends laterally from edges of the floodplain (or edges of a reservoir) to the extent of the river aquifer from Lake Mead downstream to just north of SIB. (b) Surface water from tributary valleys is considered Colorado River water when it reaches the mainstream of the lower Colorado River. When tributary water commingles with groundwater beneath the floodplain, it becomes mainstream water. Tributary water beneath the accounting surface, where the elevation of the water table is below or cannot be distinguished from E:\FR\FM\16JYP2.SGM 16JYP2 mstockstill on PROD1PC66 with PROPOSALS2 40922 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules the elevation of the accounting surface, is considered mainstream water. (c) If your well is located in the floodplain portion of the river aquifer, you are pumping lower Colorado River water. If your well is located in the accounting surface portion of the river aquifer, you are pumping water that is replaced by water drawn from the lower Colorado River unless the static water elevation in your well is above the elevation of the accounting surface in the area of your well. (1) Lee Ferry to the mouth of the Grand Canyon. The river aquifer, floodplain, and accounting surface have not been delineated from Lee Ferry to the mouth of the Grand Canyon as of the writing of this part. The determination of whether a well is pumping water from the lower Colorado River or water that is replaced by water drawn from the lower Colorado River will be made on a case-by-case basis for wells in this area using criteria determined by the Regional Director. (2) Lake Mead area. In the area surrounding Lake Mead, the river aquifer/accounting surface methodology will be used to determine if a well will be considered to pump lower Colorado River water or water replaced by water drawn from the mainstream of the lower Colorado River. The accounting surface in the area surrounding Lake Mead requires unique treatment in this part. The water surface elevation of Lake Mead fluctuates significantly on an annual basis in response to variations in the natural water supply. This fluctuation is unlike the other reservoirs of the lower Colorado River which correspond to monthly operational targets. The accounting surface in the area surrounding Lake Mead will vary annually and will be set at the high endof-month elevation of Lake Mead for the accounting year. Information regarding the elevation and lateral extent of the accounting surface surrounding Lake Mead will be provided every 5 years via publication of a notice in the Federal Register. Figures 2 and 3 of this part show the outer-most boundary of the accounting surface surrounding Lake Mead. (3) Downstream from Lake Mead to the Yuma accounting area. Accounting surface elevations in the areas surrounding Lake Mohave and Lake Havasu are set at the annual high endof-month water surface elevation targets used to operate these reservoirs under normal flow conditions. The accounting surface elevations elsewhere are determined by water surface profiles of the lower Colorado River and by water surface elevations in drainage ditches VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 where they exist in irrigated floodplain areas under normal flow conditions. (d) Though the accounting surface has been defined to just north of SIB, the river aquifer/accounting surface methodology will be utilized to identify wells which pump water that is replaced by water drawn from the lower Colorado River only in the portion of the river aquifer upstream of the Yuma accounting area as shown in Figure 6. The method described in § 415.12 will be used in the Yuma accounting area to determine whether or not a well pumps lower Colorado River water or groundwater which otherwise would have returned to the lower Colorado River upstream of NIB. Subpart B—Determining the Status of a Well § 415.10 How do I determine if my well is in the floodplain? Use the following guidelines to determine if your well is in the floodplain. (a) Generalized maps (not drawn to scale) of the floodplain of the lower Colorado River from Davis Dam to the northern boundary of the Yuma accounting area are provided at the end of this part in Figures 4 through 6. If your well is located in the floodplain shown in Figures 4 through 6, you are pumping water from the lower Colorado River and you must have an entitlement to lawfully use that water. (b) The floodplain of the area in northern Arizona between Lee Ferry, Arizona, and the mouth of the Grand Canyon has not yet been determined. If your well is between Lee Ferry and the mouth of the Grand Canyon, Reclamation will consider the facts on a case-by-case basis to determine if your well withdraws water from the lower Colorado River. (c) If you need help to determine whether your well is located within the floodplain, you may contact the Bureau of Reclamation, P.O. Box 61470, Boulder City, NV 89006–1470, Attention: Area Manager, Boulder Canyon Operations Office (BCOO– 1000). § 415.11 How do I determine if my well is outside the floodplain but drawing water out of the lower Colorado River? (a) A well located within the accounting surface portion of the river aquifer will be considered to pump water that is replaced by water drawn from the lower Colorado River if the static water elevation in the well is less than or cannot be distinguished from the elevation of the accounting surface at the well site. PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 (1) The accounting surface is the elevation at which underground water would be expected to occur in a particular area of the river aquifer if the lower Colorado River was the only source of groundwater in the area. Therefore, water pumped below or from an elevation indistinguishable from the elevation of the accounting surface in the location of your well will be replaced by water drawn from the lower Colorado River. Generalized maps (not drawn to scale) of the accounting surface from the mouth of the Grand Canyon to the northern boundary of the Yuma accounting area outside the floodplain are provided at the end of this part as Figures 2 through 6. If your well is located outside the floodplain but within the boundary of the river aquifer, the USGS will be required to measure the static water elevation in your well to determine if it is pumping water replaced by water drawn from the lower Colorado River. (2) The static water elevation in your well is compared by Reclamation to the elevation of the accounting surface at your well site. If the static water elevation in your well is indistinguishable from or lower than the elevation of the accounting surface where your well is located, you are pumping water that is replaced by water drawn from the mainstream of the lower Colorado River. You must have an entitlement to lawfully use water from the lower Colorado River. The USGS will provide advance notice to you before measurements are made by the USGS. If the static water level has never been measured in your well, you may contact the Bureau of Reclamation, P.O. Box 61470, Attention: Area Manager, Boulder Canyon Operations Office, Mail Code BCOO–1000, Boulder City, NV 89006–1470 to schedule the measurement of the static water level in your well. No other data or method are available to determine if your well is pumping water that is replaced by lower Colorado River water. Thus, if a well user denies an employee, agent, or contractor of Reclamation or the USGS access to a well to make the required measurements, Reclamation will presume that the well pumps water that is replaced by water drawn from the lower Colorado River. If the USGS is physically unable to make the required measurements due to well construction, Reclamation will presume that the well pumps water that is replaced by water drawn from the lower Colorado River. Such a presumption about your well is made, absent the measurement of the static water elevation in your well, to maintain compliance with the BCPA. E:\FR\FM\16JYP2.SGM 16JYP2 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules The BCPA requires all persons using lower Colorado River water to have a contract for the storage and delivery of Colorado River water with the Secretary of the Interior or a perfected water right under state law which existed prior to June 25, 1929, the effective date of the BCPA. mstockstill on PROD1PC66 with PROPOSALS2 § 415.12 How do I determine the status of my well if it is located in the Yuma accounting area? (a) This section defines the boundaries of the Yuma accounting area and describes criteria for determining when water withdrawn by a well is lower Colorado River water or groundwater that is flowing to the lower Colorado River upstream of NIB. The Yuma accounting area is delineated in Figure 7 of this part. (b) The Yuma accounting area is hydrologically unique because much of the water diverted from the lower Colorado River and applied for irrigation generally flows underground across the SIB or under the Colorado River south of the NIB and does not return to the lower Colorado River in the United States through natural hydrologic processes. Water which does not return to the Colorado River above the NIB, or which does not return to the Limotrophe section (the section of the lower Colorado River which forms the international boundary between the United States and Mexico from the NIB to the SIB) as surface water is not available to satisfy consumptive use in the United States or delivery obligations to Mexico by the United States under the Mexican Treaty. Reclamation determined that wells within the Yuma accounting area deserve separate consideration due to the direction of groundwater flow and the deltaic nature of the Yuma area. Reclamation developed an accounting method to determine whether or not wells in this area pump lower Colorado River water, or water previously diverted from the lower Colorado River which would otherwise return to the lower Colorado River. In the Yuma accounting area, unmeasured return flow credit is calculated and credited to Arizona assuming there are no intervening wells or depletions from the time the flows leave an irrigation district to the time the flows return to the lower Colorado River. Therefore, in the Yuma accounting area, wells which pump groundwater which otherwise would have returned to the lower Colorado River upstream of the NIB are considered to be using lower Colorado River water. (c) Figure 7 of this part depicts a groundwater divide at the northern end VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 40923 of the Yuma accounting area. In the Yuma accounting area, north of the groundwater divide, groundwater flows north to the lower Colorado River above the NIB as of the adoption of this part. Reclamation will determine that your well pumps lower Colorado River water if your well is located in an area where groundwater flows toward the lower Colorado River upstream of the NIB, as depicted in Figure 7 of this part. (d) Your well is exempt from this rule if your well is located south of the groundwater divide depicted in Figure 7 of this part where groundwater does not flow toward the lower Colorado River upstream of the NIB. upstream of NIB. Such a change could occur due to increased groundwater pumping and/or a redistribution of groundwater pumping in the Yuma accounting area. (b) In the event of a re-evaluation, Reclamation will review the method for the Yuma accounting area and modify it, as needed, following consultations with the Lower Division States. Reclamation’s review will be conducted in coordination with the Lower Division States. Changes in the Yuma accounting area will be formalized by revising this part. Subpart C—Adjustments to the River Aquifer, Floodplain, or the Accounting Surface § 415.30 What is the procedure for determining the status of my well and how will I be notified? § 415.20 What conditions may cause adjustments to the river aquifer boundaries and the elevation values which define the accounting surface? (a) Physical evidence to support adjustment to the geographic boundary of the river aquifer would include, but are not limited to, information derived from geologic studies, geophysical studies, well drilling, or the result of an extreme hydrologic event. (b) Changes in conditions that define the lower Colorado River profile may cause Reclamation to adjust the accounting surface elevation contours. Such changes in conditions may include, but are not limited to, changes in development or growth which may increase or decrease groundwater pumping in the Yuma accounting area, changes in water deliveries and/or uses, changes in reservoir operations, or changes in hydraulic conditions or other conditions that may result in significant water surface elevation changes in the lower Colorado River channel, reservoirs, and drainage ditches of the lower Colorado River. (c) The USGS and Reclamation will document the basis for any adjustments to the accounting surface elevations or the geographic boundary of the river aquifer and/or the accounting surface in a report which will be made available to the public. This part would be amended to reflect changes in the accounting surface elevations and/or the geographic boundary of the river aquifer. § 415.21 How will Reclamation make adjustments to the Yuma accounting area? (a) The method described in § 415.12 will be used in the Yuma accounting area unless or until groundwater gradients in the Yuma accounting area change so as to require a re-evaluation of the areas from which groundwater flows toward the Colorado River PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 Subpart D—Notification of Well Status (a) The Regional Director will consider information relating to §§ 415.10 through 415.12 to determine whether or not you are using water from the lower Colorado River without an entitlement. If your well is located within the accounting surface, the USGS will ask permission to measure the static water elevation in your well and the elevation of the land surface (or other appropriate elevation datum) at your well site to determine if the water pumped from your well is lower Colorado River water or water replaced by water drawn from the lower Colorado River. After the USGS measures the static water elevation in your well, the Regional Director will inform you about the status of your well in writing. If you do not give the USGS permission to measure the static water elevation in your well, the Regional Director will assume that water pumped from your well is lower Colorado River water or water replaced by water drawn from the lower Colorado River. (b) The Regional Director will establish a file for each determination that you dispute. This file is an administrative record and will contain all relevant information regarding the status of your well or other means of using water from the lower Colorado River. You are entitled to review the administrative record. All of the information considered by the Regional Director will be included in the administrative record. (c) If the Regional Director determines you are using water from the lower Colorado River without an entitlement, the Regional Director will notify you of the determination in writing by certified mail, return receipt requested, and provide the basis for the determination. The Regional Director’s determination is final unless, within 60 days of the receipt of the notice, you file an E:\FR\FM\16JYP2.SGM 16JYP2 40924 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules objection with the Regional Director. The Regional Director will make reasonable attempts to locate you to send the notice of determination and will document these attempts. If the Regional Director is unable to locate you, the determination will be final 60 days after the first attempt to deliver the notice. § 415.31 How may I challenge the determination of my well status? (a) If you file a challenge to the Regional Director’s determination, you must include information to support your challenge. The Regional Director will review your challenge and any supporting information and will notify you in writing by certified mail, return receipt requested, whether the determination has been changed. (b) If the Regional Director does not change the determination, you may file an appeal with the Commissioner of Reclamation in writing within 30 days after receiving the notice that the determination was not changed. If you do not file an appeal with the Commissioner, the decision of the Regional Director is final 30 days after you received notice that the determination was not changed. (c) It is not necessary to include your supporting information in the appeal to the Commissioner. The Regional Director will send the administrative record to the Commissioner and will include the challenge you filed with the Regional Director and any supporting information you filed with the challenge. The Commissioner’s determination will be made solely on the administrative record. The Commissioner’s determination is the final determination of the Department of the Interior. (d) Determinations by the Regional Director that may or may not be challenged: You may challenge You may not challenge (1) That your well is, or is not, located within the river aquifer ............... (2) That your well is, or is not, located within the floodplain portion of the river aquifer. That your well in the floodplain is diverting lower Colorado River water. That the entire amount of water pumped from a well should be accounted for as a diversion of lower Colorado River water regardless of the hypothesized ratio of non-Colorado River water to lower Colorado River water. Whether or not Reclamation will use the method described in this part to determine if a well pumps lower Colorado River water or water replaced by water drawn from the lower Colorado River. (3) That your well is, or is not, located within the accounting surface portion of the river aquifer. (4) That the static water elevation in your well in the accounting surface portion of the river aquifer is, or is not, below or cannot be distinguished from the accounting surface (new measurements will be made by the USGS; measurements made by any other person or entity will not be accepted). Subpart E—Bringing Your Use of Lower Colorado River Water Into Compliance With Federal Law mstockstill on PROD1PC66 with PROPOSALS2 § 415.40 How may I lawfully use water from the lower Colorado River? You may be able to bring your use of water from the lower Colorado River into compliance with Federal law through one of the options provided below: (a) Arizona. If you are using water from the lower Colorado River in Arizona, you may be able to acquire an entitlement through a contract with the Secretary of the Interior. You may contact the Arizona Department of Water Resources, Attention: Arizona Department of Water Resources, Colorado River Management, 3550 North Central Avenue, Phoenix, Arizona 85012 for information about acquiring an entitlement under Arizona’s lower Colorado River apportionment through a contract with the Secretary of the Interior. (b) California. All Colorado River water apportioned for use in California is already under permanent contract. However, if you are using water from the lower Colorado River in California, some water is available for domestic use in California through the Lower Colorado Water Supply Project (LCWSP). Unlawful users in California VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 who are eligible as domestic users in California and who wish to participate under the LCWSP must enter into a water delivery subcontract with the City of Needles. The City of Needles is the only entity authorized to enter into a standard form subcontract for delivery of this water supply to project beneficiaries. (c) Nevada. All Colorado River water apportioned for use in Nevada is already under permanent contract. Any commitment to recognize new uses of Colorado River water in Nevada would be subject to terms established by the Southern Nevada Water Authority (SNWA). SNWA has an existing entitlement to the delivery and use of any Colorado River water not previously committed for use by other Nevada water users. (d) Any Lower Division State. If you are using water from the lower Colorado River in Arizona, California, or Nevada, you may be able to acquire an entitlement through an assignment, transfer, or lease from an existing entitlement holder within your state. The assignment, transfer, or lease must be approved by Reclamation. (1) You may also be able to obtain a right to use water as a customer of an existing entitlement holder even if your well or river pump is not located within the entitlement holder’s service area. At PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 the consent of the entitlement holder, your well or river pump and place of water use must be included within the entitlement holder’s service area through a change in the service area boundary and the inclusion must be approved by Reclamation. If your well or river pump is already located within the entitlement holder’s service area, you must contact the entitlement holder to inquire about reporting your use of lower Colorado River water under the entitlement holder’s entitlement. If you do not know if your well or river pump is near or within an entitlement holder’s service area, you may refer to a map of service area boundaries within the river aquifer on Reclamation’s Web page at http://www.usbr.gov/lc/. (2) You may contact Reclamation at the Bureau of Reclamation, P.O. Box 61470, Boulder City, NV 89006–1470, Attention: Area Manager, Boulder Canyon Operations Office, Mail Code BCOO–1000, for information relating to the possibility of acquiring an entitlement to use water from the lower Colorado River or becoming a customer of an existing water entitlement holder. § 415.41 Will compliance with Federal law incur any costs for which I will be responsible? (a) You may be required to pay for certain costs when you bring your lower E:\FR\FM\16JYP2.SGM 16JYP2 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules mstockstill on PROD1PC66 with PROPOSALS2 Colorado River water use into compliance with Federal law. The type and amount of costs will vary among water users. The type and amount of costs you may be required to pay will depend upon: (1) The state in which your well or river pump is located. If you are using water from the lower Colorado River in Arizona, and you are not within an entitlement holder’s service area, you may be able to acquire an entitlement through a contract with the Secretary for a nominal charge. In California, if you are not within an entitlement holder’s service area, and you wish to enter a LCWSP water delivery subcontract with the City of Needles, you will be required to pay the initial and annual fees charged by the City of Needles to its LCWSP subcontractors. If your well is in Nevada, you would be required to comply with SNWA policies. (2) Whether or not your well or river pump is located within the boundaries of a contract holder’s service area. In Arizona and California, if your well or river pump is not located within the boundaries of an entitlement holder’s service area, your well or river pump may be close enough to an entitlement holder’s service area so that inclusion of your well or river pump by modification of the service area boundary is possible. If the entitlement holder agrees to modify its service area boundaries to include your well or river pump, you will be required to pay for the costs incurred by Reclamation to review and VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 approve the inclusion. The entitlement holder may or may not pass on its costs, if any, to you. Once you are a customer of the entitlement holder, you may be required to pay regular fees assessed by the entitlement holder. (b) In Arizona and California, if your well or river pump is already within an entitlement holder’s service area, your use of lower Colorado River water should be reported to the entitlement holder as determined by the entitlement holder. Your lower Colorado River water use will be accounted for by the entitlement holder with all such uses within its service area. The entitlement holder will report the total use of lower Colorado River water occurring within its service area under its entitlement to Reclamation. Reclamation will account for lower Colorado River water use reported by the entitlement holder against the entitlement holder’s entitlement on an annual basis. Depending upon the policies and pricing structure of the entitlement holder who is accounting for your use of lower Colorado River water, you may be subject to fees assessed by the entitlement holder. § 415.42 What is the role of an existing entitlement holder under this part? Any lower Colorado River water use occurring within your service area must be accounted for within your entitlement in accordance with the Consolidated Decree entered by the United States Supreme Court in Arizona v. California (547 U.S. 150 (2006)). PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 40925 Reclamation will assist you by providing you with information identifying the location and type of use for all of the wells inventoried in your service area which pump lower Colorado River water or water replaced by water drawn from the lower Colorado River. § 415.43 Is this part applicable to existing lower Colorado River water delivery contracts? Yes, the delivery of lower Colorado River water under existing lower Colorado River water delivery contracts is subject to Federal rules and regulations promulgated by the Secretary of the Interior under Reclamation law. Subpart F—Penalty for Noncompliance § 415.50 What if I continue to use water from the lower Colorado River without an entitlement? If you do not stop using water from the lower Colorado River without an entitlement after the notice, determination, and appeal procedures (if pursued) have been completed, then the Regional Director will report you as unlawfully using Colorado River water in an annual report filed with the United States Supreme Court. The Regional Director will then work with the United States Department of Justice to seek Federal court orders requiring you to stop using water from the lower Colorado River without an entitlement. BILLING CODE 4310–MN–P E:\FR\FM\16JYP2.SGM 16JYP2 40926 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4725 E:\FR\FM\16JYP2.SGM 16JYP2 EP16JY08.000</GPH> mstockstill on PROD1PC66 with PROPOSALS2 Illustrations to Part 415 VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4725 E:\FR\FM\16JYP2.SGM 16JYP2 40927 EP16JY08.001</GPH> mstockstill on PROD1PC66 with PROPOSALS2 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules VerDate Aug<31>2005 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules 17:28 Jul 15, 2008 Jkt 214001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4725 E:\FR\FM\16JYP2.SGM 16JYP2 EP16JY08.002</GPH> mstockstill on PROD1PC66 with PROPOSALS2 40928 VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4725 E:\FR\FM\16JYP2.SGM 16JYP2 40929 EP16JY08.003</GPH> mstockstill on PROD1PC66 with PROPOSALS2 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules VerDate Aug<31>2005 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules 17:28 Jul 15, 2008 Jkt 214001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4725 E:\FR\FM\16JYP2.SGM 16JYP2 EP16JY08.004</GPH> mstockstill on PROD1PC66 with PROPOSALS2 40930 VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4725 E:\FR\FM\16JYP2.SGM 16JYP2 40931 EP16JY08.005</GPH> mstockstill on PROD1PC66 with PROPOSALS2 Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 / Proposed Rules [FR Doc. E8–16001 Filed 7–15–08; 8:45 am] BILLING CODE 4310–MN–C VerDate Aug<31>2005 17:28 Jul 15, 2008 Jkt 214001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\16JYP2.SGM 16JYP2 EP16JY08.006</GPH> mstockstill on PROD1PC66 with PROPOSALS2 40932

Agencies

[Federal Register Volume 73, Number 137 (Wednesday, July 16, 2008)]
[Proposed Rules]
[Pages 40916-40932]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-16001]



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Part II





Department of the Interior





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Bureau of Reclamation



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43 CFR Part 415



Regulating the Use of Lower Colorado River Water Without an 
Entitlement; Proposed Rule

Federal Register / Vol. 73 , No. 137 / Wednesday, July 16, 2008 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Bureau of Reclamation

43 CFR Part 415

RIN 1006-AA50


Regulating the Use of Lower Colorado River Water Without an 
Entitlement

AGENCY: Bureau of Reclamation, Interior.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Bureau of Reclamation (Reclamation) proposes to address 
and eliminate the use of Colorado River water from the mainstream in 
the lower Colorado River basin (Lower Basin) without an entitlement. 
For the last eight years, the upper and lower Colorado River basins 
have experienced the worst drought conditions in approximately one 
hundred years of recorded history. This drought is the first sustained 
drought to be experienced on the Colorado River when all major storage 
facilities are in place and when Arizona, California, and Nevada (Lower 
Division States) are fully utilizing their basic Colorado River water 
apportionment of 7.5 million acre-feet per year. Reclamation believes 
that development of such a rule will help ensure the long-term 
sustainability of the lower Colorado River and in doing so will protect 
the water rights of lower Colorado River water entitlement holders. The 
rule establishes procedures that Reclamation will follow in making 
determinations of unlawful use of lower Colorado River water. The rule 
includes notice and appeal procedures for those persons or entities 
whose use of lower Colorado River water is identified as unlawful.
    Reclamation is seeking comments on the proposed rule including 
comments that identify any specific economic impacts to members of the 
public and to small businesses located within the boundary of the river 
aquifer. The comments should include any identified or potential 
economic impacts and the estimated costs of the impacts.

DATES: Submit comments on the rule by September 15, 2008.

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

--Use of the Federal e-rulemaking Web site: http://www.regulations.gov. 
The notice has been assigned Docket ID: BOR-2008-0001. Follow the 
instructions for submitting comments using this Docket ID number.
--By mail to: Bureau of Reclamation, P.O. Box 61470, Boulder City, NV 
89006-1470, Attention: Area Manager, Boulder Canyon Operations Office, 
Mail Code BCOO-1000. Please include the number 1006-AA50 and the Docket 
ID (BOR-2008-0001) in your correspondence.

FOR FURTHER INFORMATION CONTACT: Margot Selig, 702-293-8192.

SUPPLEMENTARY INFORMATION:

I. Background

    Legal System for Use of Colorado River Water in the Lower Basin. 
The Colorado River is the primary source of water for irrigation, 
municipal, and industrial uses in the Lower Basin within the Lower 
Division States. Colorado River water is stored behind Hoover Dam, 
authorized by the Boulder Canyon Project Act of 1928 (BCPA), for 
delivery and beneficial use in the United States. In addition, water 
stored by Hoover Dam is released pursuant to the United States 1944 
Treaty with Mexico which addresses the use of the Colorado, Rio Grande, 
and Tijuana Rivers.
    To lawfully use water from the mainstream of the lower Colorado 
River, a person or entity must have an entitlement. An entitlement 
authorizes a person or entity to use water from the lower Colorado 
River for beneficial use and exists in one of three forms: (a) A 
decreed right as described in the Consolidated Decree entered by the 
United States Supreme Court in Arizona v. California, 547 U.S. 150 
(2006) (Supreme Court Decree), (b) a contract with the Secretary of the 
Interior (Secretary), or (c) a Secretarial Reservation of Colorado 
River water. An entitlement to use lower Colorado River water specifies 
the quantity of water which may be used, the purpose for which the 
water may be used, and the location where the use may occur. Any 
diversion or consumptive use of lower Colorado River water without an 
entitlement is unlawful.
    The BCPA and the Supreme Court Decree require a Colorado River 
water user in the Lower Basin to have a contract with the Secretary for 
the storage, delivery, and use of such water. The Regional Director of 
Reclamation's Lower Colorado Region enters into water delivery 
contracts with water users in Arizona, California, and Nevada on behalf 
of the Secretary. The BCPA and the Reclamation Act of 1902 authorize 
the Secretary to prescribe such rules and regulations necessary to 
carry out provisions of law.
    The Supreme Court Decree requires the United States to account for 
all mainstream Colorado River water use in the Lower Basin. Pursuant to 
this requirement, Reclamation prepares and maintains complete, 
detailed, and accurate records of all known diversions, return flow, 
and consumptive use of Colorado River water in the Lower Basin on an 
annual basis. These accounting records include all diversions and use 
of Colorado River water in Arizona, California, and Nevada, whether or 
not currently authorized by an entitlement. All reported Colorado River 
water use in a state is required by the Supreme Court Decree to be 
accounted for against the amount of Colorado River water available in 
that state during that year. The Supreme Court Decree specifies that 
consumptive use of Colorado River water in the Lower Basin includes 
water drawn from the mainstream by underground pumping.
    Technical Issues To Be Addressed. Current data show that Colorado 
River water used in the Lower Basin without an entitlement outside of 
existing lower Colorado River water delivery service areas ranges 
between 9,000 and 15,000 acre-feet per year. The amount of lower 
Colorado River water pumped by wells and river pumps within service 
areas that is not accounted for under existing entitlements is unknown. 
The largest amount of water being unlawfully used from the Colorado 
River in the Lower Basin occurs via underground pumping for irrigation 
use from wells located on the floodplain. The majority of water users 
who are using lower Colorado River water without an entitlement consist 
of households which pump small amounts of water for domestic use from 
wells located on the floodplain.
    At Reclamation's request, the United States Geological Survey 
(USGS) has developed a method to identify wells that pump water that is 
replaced by water drawn from the lower Colorado River. The USGS method 
identifies a River Aquifer and a theoretical accounting surface within 
the River Aquifer. The River Aquifer extends outward from the Colorado 
River until encountering a geologic barrier to groundwater flow and 
encompasses the water bearing materials from which water can move to 
and from the lower Colorado River. The accounting surface was developed 
with a groundwater model and represents the elevation and extent of the 
river aquifer that is in hydraulic connection with the lower Colorado 
River. The accounting surface extends outward from the exterior 
boundary of the Colorado River floodplain to the exterior limit of the 
River Aquifer. Several thousand wells are located within the boundary 
of the River Aquifer. The USGS is performing a well inventory within 
the boundary of

[[Page 40917]]

the River Aquifer to identify river pumps and wells that can draw water 
directly from the lower Colorado River or pump water that would be 
replaced by water drawn from the lower Colorado River. Wells in the 
floodplain pump water directly from the lower Colorado River. The 
accounting surface is the area within which Reclamation will apply the 
USGS method to determine whether water pumped from a well is replaced 
with water drawn from the lower Colorado River. Reclamation will also 
evaluate whether unique hydrologic circumstances in some areas along 
the lower Colorado River merit an exception to the USGS methodology.
    Need to Curtail Unlawful Use of Colorado River Water in the Lower 
Basin. One of Reclamation's legal obligations and administrative 
priorities is to ensure that all Colorado River water use in the Lower 
Basin is covered by an entitlement and correctly accounted for within 
each Lower Division State's apportionment. Each Lower Division State's 
apportionment of Colorado River water is limited; thus, unlawful use 
harms that state's entitlement holders by using water that those 
entitlement holders could legally use otherwise. This fact leads 
Reclamation to conclude that this rulemaking is necessary and 
appropriate. Additionally, each Lower Division State is fully utilizing 
its respective apportionment and the prolonged period of drought in the 
Colorado River Basin has reduced the amount of water stored in Colorado 
River reservoirs.
    Content of Rule. The rule provides a framework for identifying and 
curtailing the use of mainstream Colorado River water in the Lower 
Basin without an entitlement. The rule will: (a) Establish the 
methodology that Reclamation will use to determine if a well pumps 
water that is replaced with water drawn from the lower Colorado River; 
(b) establish the criteria a water user must satisfy to demonstrate 
that his or her well does not pump water that is replaced with water 
drawn from the lower Colorado River; and (c) establish a process for a 
water user to appeal a determination that a specific well pumps water 
that would be replaced by water drawn from the lower Colorado River.
    In the rule, Reclamation will inform unlawful users about the 
existence of various options to bring their use of Colorado River water 
in the Lower Basin into compliance with Federal law. Below are several 
options that Reclamation will consider:
    (a) Some water may be available under the three Lower Division 
States' apportionments.
    (1) Arizona: Some lower Colorado River water may be available for 
allocation in Arizona. Reclamation intends to consult with Arizona 
Department of Water Resources (ADWR) to determine if some of Arizona's 
Colorado River water could be committed for use by persons or entities 
in Arizona whose Colorado River water use is found to be unlawful. For 
the purposes of this rule, a water delivery contract between ADWR and 
Reclamation may satisfy the contract requirement for multiple 
individual water users and eliminate the need for contracts between the 
United States and the individual water users.
    (2) California: All Colorado River water apportioned for use in 
California is already under permanent contract. However, a small amount 
of water is available for domestic use in California through the Lower 
Colorado Water Supply Project (LCWSP). Unlawful users in California who 
are eligible for domestic use in California and who wish to participate 
under the LCWSP must enter into a water delivery subcontract with the 
City of Needles. The City of Needles is the only entity authorized to 
enter into a standard form subcontract for delivery of this water 
supply to LCWSP beneficiaries.
    (3) Nevada: All Colorado River water apportioned for use in Nevada 
is already under permanent contract. Any commitment to recognize new 
uses of Colorado River water in Nevada would be subject to terms 
established by the Southern Nevada Water Authority (SNWA). SNWA has an 
existing entitlement to the delivery and use of any Colorado River 
water not previously committed for use by other Nevada water users.
    (b) A water user may be able to obtain an entitlement through an 
assignment, transfer, or lease from an existing entitlement holder 
within that state. An assignment, transfer, or lease must be approved 
by Reclamation.
    (c) A water user may be able to obtain a right to use water as a 
customer of an existing entitlement holder. The place of water use must 
be included within the entitlement holder's service area and the 
inclusion must be approved by Reclamation.
    (d) A water user may be able to acquire a different source of water 
that is not hydraulically connected to the lower Colorado River.
    The rule emphasizes the options for bringing one's use of lower 
Colorado River water into compliance with Federal law. However, under 
the rule, individuals or entities who continue to use lower Colorado 
River water without an entitlement will be reported to the United 
States Supreme Court by the Regional Director. The Regional Director 
will work with the United States Department of Justice to seek Federal 
court orders requiring these users to cease using water from the lower 
Colorado River without an entitlement.
    The proposed rule was preceded by an Advance Notice of Proposed 
Rulemaking (ANPR), published in the Federal Register on August 18, 2006 
(71 FR 47763), under the title, ``Regulating Non-Contract Use of 
Colorado River Water in the Lower Basin.'' The ANPR provided for a 
public comment period that ran from August 18, 2006, through October 
17, 2006. Reclamation received 21 letters during the comment period. 
Nine letters were requests to be placed on a mailing list. Twelve 
letters contained comments on the ANPR. The commentators included one 
Indian tribe, three state agencies, one interstate agency, one farmers' 
organization, one commercial business, two private individuals, one 
irrigation and electrical district organization, one water authority, 
and one municipality. Reclamation reviewed and analyzed all comments. 
The commentators generally support the development of a rule to address 
the use of Colorado River water in the Lower Basin without an 
entitlement. However, one commenter questioned the need for a rule 
since existing law is sufficient to bring unlawful users into 
compliance; this commenter requests further evaluation of the 
accounting surface around Lake Mead. One commenter desires a monitoring 
process, determination of required frequency for field data collection, 
updates to the USGS accounting surface model, and peer review of the 
USGS accounting surface methodology; this commenter is also concerned 
about the timing related to the replacement of water by Colorado River 
water when pumped by a well. For example, in certain areas of the River 
Aquifer in Arizona, the accounting surface boundary is 30 miles from 
the mainstream. One commenter said that unlawful users must have a 
means to bring their use into compliance with Federal law. One 
commenter said the rule should identify the point at which tributary 
water becomes part of the mainstream and address water from lakes and 
ponds fed from the mainstream through the subsurface. This commenter 
further added that the rule must provide for due process, and establish 
some type of enforcement ability to cause unlawful users to cease and 
desist from using mainstream water. Several commentators stated the 
necessity for

[[Page 40918]]

Reclamation to recognize the existence of unique hydrological 
circumstances in some areas of the lower Colorado River which could 
merit exemption to the River Aquifer/accounting surface methodology. 
All of the comments received on the ANPR are addressed in the proposed 
rule.
    The rulemaking process provides an opportunity to (a) provide for 
public review and comment on the River Aquifer/accounting surface 
methodology; (b) adopt the River Aquifer/accounting surface 
methodology; (c) establish procedures for determining unlawful use; (d) 
develop notice and administrative appeal procedures; and (e) provide 
options for unlawful users to legalize their lower Colorado River water 
use. Reclamation is seeking comments on the proposed rule including 
comments that identify any specific economic impacts to members of the 
public and to small businesses located within the boundary of the river 
aquifer. The comments should include any identified or potential 
economic impacts and the estimated costs of the impacts.
    USGS reports WRIR 94-4005 and WRIR 00-4085 were extensively 
reviewed through the USGS peer review and report publishing process. 
The frequency of field data collection for the well inventory is not 
predetermined. Field data collection is expected to be a continuous 
process to ensure that all wells are identified and inventoried, 
including those that have been drilled after the initial field data 
collection was completed for a given area. Also, the frequency for 
field data collection for any given area will be determined by 
Reclamation dynamically, based upon such parameters as significant 
changes in river conditions, development, population, political 
considerations, and availability of funding and staff. The timing of 
depletions from wells distant from the lower Colorado River has been 
addressed cooperatively by Reclamation and the USGS using numerical 
modeling techniques. The USGS is expected to produce a peer-reviewed 
``Scientific Investigations Report'' concerning this matter in July 
2008.
    The only area Reclamation currently considers unique enough to 
warrant exemption from the River Aquifer/accounting surface method is 
the Yuma, Arizona area near the City of Yuma and south to the Southerly 
International Boundary (SIB) between the United States and Mexico. The 
Yuma area is hydrologically unique because it is a river delta 
environment, not a river environment. In the deltaic environment of the 
Yuma area, much of the water diverted from the Colorado River and 
applied to the ground for irrigation does not naturally return to 
either the Colorado River above the Northerly International Boundary 
(NIB) between the United States and Mexico or the Limotrophe section 
(the section of the lower Colorado River which forms the international 
boundary between the United States and Mexico from the NIB to the SIB) 
as surface water. Water which does not return to either the Colorado 
River above the NIB or the Limotrophe section as surface water is not 
available for diversion in the United States or for satisfaction of the 
Mexican water treaty. In the Yuma area, much of the water diverted from 
the Colorado River and applied to the ground for irrigation flows 
underground across the SIB and Limitrophe section boundaries into 
Mexico. A unique set of criteria governing this area is included in 
this rule at section 415.12. Should unique hydrological circumstances 
be identified elsewhere within the River Aquifer, Reclamation will 
likewise consider whether or not these circumstances would merit an 
exception to the USGS methodology. Information regarding the 
geographical applicability of the rule can be found in Subpart B of the 
rule and Figures 1 through 7.

II. Procedural Requirements

1. Regulatory Planning and Review (Executive Order (E.O.) 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is not a significant rule and has not reviewed it under the 
requirements of E.O. 12866. We have evaluated the impacts of this rule 
as required by E.O. 12866 and have determined that it is not a 
significant regulatory action. The results of our evaluation follow:
    (a) This rule will not have an annual effect of $100 million or 
more on the economy. It will not adversely affect in any material way 
the economy, productivity, competition, jobs, environment, public 
health or safety, or State, local, and tribal governments or 
communities. This rule will protect lawful entitlements to use water 
from the lower Colorado River by providing a method for identifying and 
reporting persons and entities unlawfully using such water.
    Reclamation will incur ongoing administrative costs to monitor and 
address unlawful use of lower Colorado River water. Activities related 
to monitoring and addressing unlawful use of lower Colorado River water 
must be performed with or without promulgation of the rule for 
Reclamation to remain in compliance with Colorado River law. The 
Federal cost incurred to monitor and address unlawful use of lower 
Colorado River water is not incremental to the rule.
    Water users who are using lower Colorado River water without an 
entitlement may incur costs to bring their lower Colorado River water 
use into compliance with Federal law. The type and amount of costs will 
vary among water users depending upon the state in which their well or 
river pump is located, the manner in which a water user chooses to 
acquire an entitlement if appropriate, whether or not their well or 
river pump is located within the boundaries of an entitlement holder's 
service area, and the fees assessed by the entitlement holder.
    (b) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. Under the 
BCPA, the United States Congress allocated among the Lower Division 
States the mainstream water in the lower Colorado River to which they 
were entitled under the Colorado River Compact of 1922. Through the 
BCPA, the Congress uniquely authorized the Secretary to accomplish the 
allocation of Colorado River water among the Lower Division States by 
empowering the Secretary to enter into contracts for the delivery of 
water and by providing that no person shall have or be entitled to have 
the use of Colorado River water without a contract. The United States 
Supreme Court validated these and other provisions of the BCPA in the 
June 3, 1963 United States Supreme Court Opinion in Arizona v. 
California (376 U.S. 546) and the Supreme Court Decree. In the Supreme 
Court Decree the Secretary is charged with, among other things, 
accounting for and reporting the consumptive use of Colorado River 
water diverted directly from the mainstream and/or through underground 
pumping. Reclamation performs water contracting and water accounting 
responsibilities on behalf of the Secretary. No other agency in the 
United States performs these functions on the lower Colorado River.
    (c) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients; all of these will continue unaffected by the issuance 
of this rule.
    (d) This rule does not raise any novel legal or policy issues. This 
rule will not implement requirements upon users of lower Colorado River 
water that do not already exist.

[[Page 40919]]

2. Regulatory Flexibility Act

    The Department of the Interior (Interior) certifies that this 
document will not have a significant economic effect on a substantial 
number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601, et seq.). This rule imposes no requirements upon small governments 
(including Native American communities), small entities such as water 
purveyors or associations, individual lower Colorado River water 
entitlement holders or lawful water users that are not already imposed 
by the BCPA and the Supreme Court Decree concerning the use of lower 
Colorado River water. This rule does not impose a requirement for small 
entities to report or keep records on any of the requirements contained 
in this rule other than the type of recordkeeping regarding lower 
Colorado River water use that is already required by water delivery 
contracts with the Secretary. You may obtain a copy of the Initial 
Regulatory Flexibility Analysis by contacting us at the address in the 
Addresses section. Development of a Small Entity Compliance Guide is 
not required.

3. Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under the Small Business Regulatory 
Enforcement Fairness Act (5 U.S.C. 804(2)). This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more. Under the Benefit-Cost Analysis/Unfunded Mandates Reform Act 
Analysis performed to evaluate the potential economic impacts of this 
rule the estimated net present value of the impact to the economy from 
2008 through 2027 ranges between $256,313 to $3,742,363 under a real 
discount rate of 7.0 percent and $340,804 to $5,375,118 under a real 
discount rate of 3.0 percent. The estimated economic impacts over the 
20-year period of the study are associated with costs that may be 
incurred when unlawful users of lower Colorado River water incur costs 
to either obtain a lower Colorado River water entitlement or become a 
customer of a lower Colorado River water entitlement holder. Federal 
costs related to oversight of unlawful use of lower Colorado River 
water will be incurred with or without the rule in fiscal years 2008 
through 2010.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. The estimated economic impacts are not 
significant. This rule does not impose new requirements regarding the 
lawful use of lower Colorado River water.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based enterprises to compete with foreign-based 
enterprises. The potential economic impacts incurred by lower Colorado 
River water users who are unlawfully using lower Colorado River water 
are not significant. This rule establishes procedures that Reclamation 
will use to determine if a well pumps water that is replaced by water 
drawn from the lower Colorado River.

4. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more 
annually. This rule does not have a significant or unique effect on 
State, local, or tribal governments or the private sector. This rule 
imposes no requirements regarding the lawful use of lower Colorado 
River water that are not already imposed by the BCPA and the Supreme 
Court Decree. You may obtain a copy of the Benefit-Cost Analysis/
Unfunded Mandates Reform Act Analysis for Proposed Rulemaking by 
contacting us at the address in the Addresses section. Therefore, a 
statement containing information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531, et seq.) is not required.

5. Takings (E.O. 12630 and E.O. 13406)

    Under the criteria in E.O. 12630 and E.O. 13406, this rule does not 
have any significant takings implications. A Takings Implication 
Assessment is not required. This rule will protect valid water rights 
and help to ensure the long-term sustainability of the resource. For 
water users far from the river channel or reservoirs and who are 
pumping groundwater outside of the lower Colorado River floodplain, 
this rule provides for a test which can determine if water pumped by a 
well is replaced by water drawn from the mainstream of the lower 
Colorado River. The test is based upon the lower Colorado River 
accounting surface developed by the USGS. If, according to the test, 
the well is drawing water from the mainstream of the lower Colorado 
River, the well user must have an entitlement to use the water. This 
rule provides information explaining how to acquire an entitlement to 
use lower Colorado River water. This rule also explains the steps that 
Reclamation will take against a person or entity for failure to stop 
using lower Colorado River water unlawfully.

6. Federalism (E.O. 13132)

    Under the criteria in E.O. 13132, the proposed rule does not have 
any federalism implications to warrant the preparation of a Federalism 
Assessment. The rule is not associated with, nor will it have 
substantial direct effects on the States, on the relationship between 
the National Government and the States, or on the distribution of power 
and responsibilities among the various levels of government. A 
Federalism Assessment is not required.

7. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of E.O. 12988. 
Specifically, this rule:
    (a) Does not unduly burden the judicial system;
    (b) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (c) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

8. Consultation With Indian Tribes (E.O. 13175)

    Under E.O. 13175, Reclamation has evaluated this rule and 
determined that it would have no substantial effects on federally 
recognized Indian tribes. Reclamation consulted with the Indian tribes 
that are located on the mainstream of the lower Colorado River on 
November 1, 2006, to discuss the objectives of this rule and to hear 
questions and concerns on the part of Indian tribes.

9. Paperwork Reduction Act

    This rule does not require collection of new or additional 
information from the public other than what is already required from 
Colorado River water entitlement holders regarding their water use. A 
submission under the Paperwork Reduction Act is not required.

10. National Environmental Policy Act of 1969 (NEPA)

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. An environmental 
assessment consistent with NEPA requirements has been prepared and is 
summarized below. This rule does not require construction of water 
diversion, delivery, treatment, or storage facilities. This rule does 
not impact cultural resources or threatened or endangered species. This 
rule may improve the long-term sustainability of the lower Colorado 
River by establishing

[[Page 40920]]

procedures which enable Reclamation to identify unlawful users of lower 
Colorado River water. You may obtain a copy of the environmental 
assessment by contacting us at the address in the Addresses section or 
you may find the environmental assessment on Reclamation's Web page at 
http://www.usbr.gov/lc/.

11. Information Quality Act

    In developing this rule, we did not conduct or use a study, 
experiment, or survey requiring peer review under the Information 
Quality Act (Pub. L. 106-554).

12. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in the E.O. 13211. A Statement of Energy Effects is not required.

13. Clarity of This Regulation

    We are required by E.O. 12866 and E.O. 12988, and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you believe these requirements have not been met, please send 
comments to Reclamation as instructed in the Addresses section. Please 
make your comments as specific as possible, referring to specific 
sections and how they could be improved. For example, you should tell 
us the numbers of the sections or paragraphs that are unclearly 
written, which sections or sentences are too long, the sections where 
you believe lists or tables would be useful, etc.

14. Public Availability of Comments

    Before including your name, address, phone number, e-mail address, 
or other personal identifying information in your comment, you should 
be aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 43 CFR Part 415

    Water resources, Water supply.

    Dated: July 9, 2008.
Timothy R. Petty,
Acting Assistant Secretary for Water and Science.

    For the reasons stated in the preamble, the Bureau of Reclamation 
proposes to add a new part 415 to Title 43 of the Code of Federal 
Regulations to read as follows:

PART 415--REGULATING THE USE OF LOWER COLORADO RIVER WATER WITHOUT 
AN ENTITLEMENT

Subpart A--Purpose, Definitions, and Applicability
Sec.
415.1 What is the purpose of this part?
415.2 What terms are used in this part?
415.3 What is the difference between lawful and unlawful use of 
lower Colorado River water?
415.4 How do I know if the water I use is subject to this part?
415.5 How will the river aquifer/accounting surface methodology be 
applied?
Subpart B--Determining the Status of a Well
415.10 How do I determine if my well is in the floodplain?
415.11 How do I determine if my well is outside the floodplain but 
drawing water out of the lower Colorado River?
415.12 How do I determine the status of my well if it is located in 
the Yuma accounting area?
Subpart C--Adjustments to the River Aquifer, Floodplain, or the 
Accounting Surface
415.20 What conditions may cause adjustments to the river aquifer 
boundaries and the elevation values which define the accounting 
surface?
415.21 How will Reclamation make adjustments to the Yuma accounting 
area?
Subpart D--Notification of Well Status
415.30 What is the procedure for determining the status of my well 
and how will I be notified?
415.31 How may I challenge the determination of my well status?
Subpart E--Bringing Your Use of Lower Colorado River Water Into 
Compliance With Federal Law
415.40 How may I lawfully use water from the lower Colorado River?
415.41 Will compliance with Federal law incur any cost for which I 
will be responsible?
415.42 What is the role of an existing entitlement holder under this 
part?
415.43 Is this part applicable to existing lower Colorado River 
water delivery contracts?
Subpart F--Penalty for Noncompliance
415.50 What if I continue to use water from the lower Colorado River 
without an entitlement?

Illustrations to Part 415

    Authority: 5 U.S.C. 552; 43 U.S.C. 373, 485, 617.

Subpart A--Purpose, Definitions, and Applicability


Sec.  415.1   What is the purpose of this part?

    This part protects lawful entitlements to use water from the lower 
Colorado River by providing a method for identifying persons and 
entities unlawfully using such water.


Sec.  415.2  What terms are used in this part?

    Accounting surface means the elevation and slope of the unconfined 
static water table in the river aquifer outside the floodplain and the 
reservoirs of the lower Colorado River that would exist if the lower 
Colorado River were the only source of water to the river aquifer. The 
accounting surface extends outward from the edges of the floodplain or 
a reservoir to the subsurface boundary of the river aquifer from the 
mouth of the Grand Canyon to just north of the Southerly International 
Boundary (SIB). In the Yuma accounting area, the use of the accounting 
surface is superseded as determined by Reclamation.
    Accounting year means January 1 through December 31.
    Boulder Canyon Project Act of 1928 (BCPA) means the act which 
established the responsibilities of the Secretary of the Interior to 
direct, manage, and coordinate the operation of Colorado River dams and 
related works in the Lower Basin.
    Colorado River water means water in or withdrawn from the 
mainstream of the Colorado River, including the following:
    (1) Water in the surface channels and reservoirs of the Colorado 
River;
    (2) Water in the floodplain drains;
    (3) Water beneath the Colorado River floodplain; and
    (4) Water withdrawn from beneath the accounting surface.
    Domestic use means the use of Colorado River water for household, 
stock, municipal, mining, milling, industrial and other like purposes, 
excluding the generation of electrical power.
    Floodplain means that part of the lower Colorado River valley that 
has been covered by floods of the modern lower Colorado River as it 
meandered prior to construction of Hoover Dam. The floodplain commonly 
is bounded by terraces and alluvial slopes that rise to the foot of the 
mountains that rim the valley. In the Yuma area, the floodplain 
includes the floodplain of the Gila River from the Laguna and Gila 
Mountains to

[[Page 40921]]

the confluence with the lower Colorado River.
    Lower basin means the lower Colorado River basin, which includes 
those parts of Arizona, California, Nevada, New Mexico, and Utah within 
and from which waters naturally drain into the Colorado River below Lee 
Ferry. The lower basin also includes parts of those same states that 
are located outside the drainage area of the Colorado River that are or 
can be beneficially served by waters diverted from the Colorado River 
below Lee Ferry.
    Lower Colorado River water means mainstream water.
    Lower Division States means Arizona, California, and Nevada.
    Mainstream means the main channel of the Colorado River downstream 
from Lee Ferry within the United States. The mainstream includes the 
reservoirs behind dams on the main channel and Senator Wash Reservoir 
off the main channel.
    Mainstream water means
    (1) Water drawn or diverted from the main channel of the lower 
Colorado River, exclusive of tributaries, within the United States 
downstream from Lee Ferry (including the areas covered by reservoirs, 
wetlands, lakes, ponds, and backwaters);
    (2) Water withdrawn by a well within the boundary of the floodplain 
portion of the lower Colorado River aquifer; and
    (3) Within the boundary of the accounting surface portion of the 
lower Colorado River aquifer, water withdrawn from a well with a static 
water level indistinguishable from or less than the elevation of the 
accounting surface at the well site.
    NIB means the Northerly International Boundary with Mexico.
    Normal flow conditions mean that releases from Hoover Dam are made 
in accordance with downstream requirements to satisfy 7.5 million acre-
feet of consumptive use in the United States and a delivery of 1.5 
million acre-feet to Mexico.
    Regional Director means the Regional Director, Lower Colorado 
Region, Bureau of Reclamation, Boulder City, Nevada.
    River aquifer means the unconfined aquifer that consists of the 
saturated, permeable sediments and sedimentary rocks that are 
hydraulically connected to the lower Colorado River so that water can 
move between the lower Colorado River and the aquifer in response to 
withdrawal of water from the aquifer or differences in water level 
elevations between the lower Colorado River and the aquifer. The river 
aquifer consists of the aquifer underlying the lower Colorado River's 
floodplain and the accounting surface. The river aquifer has been 
delineated from the mouth of the Grand Canyon to SIB.
    SIB means the Southerly International Boundary with Mexico.
    Static water elevation means the non-pumping elevation of the water 
in a well, measured as the elevation of the ground, or other 
appropriate elevation reference, less the depth to water in the well 
with the pump turned off and the water elevation in the well recovered 
to the non-pumping elevation.
    Tributary water is water that enters the mainstream or the river 
aquifer from a source other than the Colorado River.
    USGS means the United States Geological Survey of the Department of 
the Interior.
    Wells with a static water elevation that cannot be distinguished 
from the accounting surface means wells that have a static water 
elevation which is within  0.84 feet from the accounting 
surface elevation in the area of the well.
    Yuma accounting area means the area in Arizona generally downstream 
from the confluence of the Gila River, on the Yuma Mesa, and the Yuma 
Valley. This area is delineated in Figure 7 of this part.


Sec.  415.3   What is the difference between lawful and unlawful use of 
lower Colorado River water?

    (a) A person or entity may lawfully use water from the lower 
Colorado River only under an entitlement. An entitlement means an 
authorization to use water from the lower Colorado River water as 
described in:
    (1) The Consolidated Decree entered by the United States Supreme 
Court in Arizona v. California in March of 2006, as supplemented or 
amended;
    (2) A water delivery contract with the Secretary of the Interior; 
or
    (3) A reservation of water by the Secretary of the Interior.
    (b) If you are using water from the lower Colorado River without an 
entitlement, you are using water unlawfully. You must obtain an 
entitlement or you must stop using water from the lower Colorado River.


Sec.  415.4   How do I know if the water I use is subject to this part?

    (a) This rule applies to you if you use water from the mainstream 
of the lower Colorado River within the States of Arizona, California, 
or Nevada. The lower Colorado River begins at Lee Ferry, Arizona, which 
is located 17.3 miles downstream from Glen Canyon Dam. The mainstream 
of the lower Colorado River includes all water in the river channel and 
all water in any reservoir on the lower Colorado River. Water in the 
mainstream of the lower Colorado River originates from many sources 
both above and below the ground. When surface water from tributary 
valleys reaches the mainstream of the lower Colorado River, it becomes 
Colorado River water. When tributary water commingles with Colorado 
River water beneath the floodplain, it becomes mainstream water. 
Tributary water that commingles with groundwater beneath the accounting 
surface, where the elevation of the water table is below or cannot be 
distinguished from the elevation of the accounting surface, is 
considered mainstream water.
    (b) You are using mainstream water from the lower Colorado River if 
you divert any water out of the river channel; for example, by a 
diversion dam, a river pump, or a hose. You are using mainstream water 
from the lower Colorado River if you are diverting water out of a 
reservoir, such as Lake Mead, Lake Mohave, or Lake Havasu. You are 
using mainstream water from the lower Colorado River if you operate a 
well located in the river's floodplain, because that well draws water 
directly from the mainstream. You are using mainstream water from the 
lower Colorado River if you operate a well located outside the 
floodplain and your well pumps water that is replaced by water drawn 
from the lower Colorado River, as determined by the river aquifer/
accounting surface methodology.


Sec.  415.5  How will the river aquifer/accounting surface methodology 
be applied?

    (a) Your well must be located within the exterior boundary of the 
river aquifer to potentially pump water from the lower Colorado River. 
The river aquifer extends from Lake Mead downstream to SIB and 
laterally into adjacent areas generally until encountering a barrier to 
subsurface flow. The river aquifer contains two smaller areas called 
the floodplain and the accounting surface. The accounting surface 
exists within the river aquifer and extends laterally from edges of the 
floodplain (or edges of a reservoir) to the extent of the river aquifer 
from Lake Mead downstream to just north of SIB.
    (b) Surface water from tributary valleys is considered Colorado 
River water when it reaches the mainstream of the lower Colorado River. 
When tributary water commingles with groundwater beneath the 
floodplain, it becomes mainstream water. Tributary water beneath the 
accounting surface, where the elevation of the water table is below or 
cannot be distinguished from

[[Page 40922]]

the elevation of the accounting surface, is considered mainstream 
water.
    (c) If your well is located in the floodplain portion of the river 
aquifer, you are pumping lower Colorado River water. If your well is 
located in the accounting surface portion of the river aquifer, you are 
pumping water that is replaced by water drawn from the lower Colorado 
River unless the static water elevation in your well is above the 
elevation of the accounting surface in the area of your well.
    (1) Lee Ferry to the mouth of the Grand Canyon. The river aquifer, 
floodplain, and accounting surface have not been delineated from Lee 
Ferry to the mouth of the Grand Canyon as of the writing of this part. 
The determination of whether a well is pumping water from the lower 
Colorado River or water that is replaced by water drawn from the lower 
Colorado River will be made on a case-by-case basis for wells in this 
area using criteria determined by the Regional Director.
    (2) Lake Mead area. In the area surrounding Lake Mead, the river 
aquifer/accounting surface methodology will be used to determine if a 
well will be considered to pump lower Colorado River water or water 
replaced by water drawn from the mainstream of the lower Colorado 
River. The accounting surface in the area surrounding Lake Mead 
requires unique treatment in this part. The water surface elevation of 
Lake Mead fluctuates significantly on an annual basis in response to 
variations in the natural water supply. This fluctuation is unlike the 
other reservoirs of the lower Colorado River which correspond to 
monthly operational targets. The accounting surface in the area 
surrounding Lake Mead will vary annually and will be set at the high 
end-of-month elevation of Lake Mead for the accounting year. 
Information regarding the elevation and lateral extent of the 
accounting surface surrounding Lake Mead will be provided every 5 years 
via publication of a notice in the Federal Register. Figures 2 and 3 of 
this part show the outer-most boundary of the accounting surface 
surrounding Lake Mead.
    (3) Downstream from Lake Mead to the Yuma accounting area. 
Accounting surface elevations in the areas surrounding Lake Mohave and 
Lake Havasu are set at the annual high end-of-month water surface 
elevation targets used to operate these reservoirs under normal flow 
conditions. The accounting surface elevations elsewhere are determined 
by water surface profiles of the lower Colorado River and by water 
surface elevations in drainage ditches where they exist in irrigated 
floodplain areas under normal flow conditions.
    (d) Though the accounting surface has been defined to just north of 
SIB, the river aquifer/accounting surface methodology will be utilized 
to identify wells which pump water that is replaced by water drawn from 
the lower Colorado River only in the portion of the river aquifer 
upstream of the Yuma accounting area as shown in Figure 6. The method 
described in Sec.  415.12 will be used in the Yuma accounting area to 
determine whether or not a well pumps lower Colorado River water or 
groundwater which otherwise would have returned to the lower Colorado 
River upstream of NIB.

Subpart B--Determining the Status of a Well


Sec.  415.10  How do I determine if my well is in the floodplain?

    Use the following guidelines to determine if your well is in the 
floodplain.
    (a) Generalized maps (not drawn to scale) of the floodplain of the 
lower Colorado River from Davis Dam to the northern boundary of the 
Yuma accounting area are provided at the end of this part in Figures 4 
through 6. If your well is located in the floodplain shown in Figures 4 
through 6, you are pumping water from the lower Colorado River and you 
must have an entitlement to lawfully use that water.
    (b) The floodplain of the area in northern Arizona between Lee 
Ferry, Arizona, and the mouth of the Grand Canyon has not yet been 
determined. If your well is between Lee Ferry and the mouth of the 
Grand Canyon, Reclamation will consider the facts on a case-by-case 
basis to determine if your well withdraws water from the lower Colorado 
River.
    (c) If you need help to determine whether your well is located 
within the floodplain, you may contact the Bureau of Reclamation, P.O. 
Box 61470, Boulder City, NV 89006-1470, Attention: Area Manager, 
Boulder Canyon Operations Office (BCOO-1000).


Sec.  415.11   How do I determine if my well is outside the floodplain 
but drawing water out of the lower Colorado River?

    (a) A well located within the accounting surface portion of the 
river aquifer will be considered to pump water that is replaced by 
water drawn from the lower Colorado River if the static water elevation 
in the well is less than or cannot be distinguished from the elevation 
of the accounting surface at the well site.
    (1) The accounting surface is the elevation at which underground 
water would be expected to occur in a particular area of the river 
aquifer if the lower Colorado River was the only source of groundwater 
in the area. Therefore, water pumped below or from an elevation 
indistinguishable from the elevation of the accounting surface in the 
location of your well will be replaced by water drawn from the lower 
Colorado River. Generalized maps (not drawn to scale) of the accounting 
surface from the mouth of the Grand Canyon to the northern boundary of 
the Yuma accounting area outside the floodplain are provided at the end 
of this part as Figures 2 through 6. If your well is located outside 
the floodplain but within the boundary of the river aquifer, the USGS 
will be required to measure the static water elevation in your well to 
determine if it is pumping water replaced by water drawn from the lower 
Colorado River.
    (2) The static water elevation in your well is compared by 
Reclamation to the elevation of the accounting surface at your well 
site. If the static water elevation in your well is indistinguishable 
from or lower than the elevation of the accounting surface where your 
well is located, you are pumping water that is replaced by water drawn 
from the mainstream of the lower Colorado River. You must have an 
entitlement to lawfully use water from the lower Colorado River. The 
USGS will provide advance notice to you before measurements are made by 
the USGS. If the static water level has never been measured in your 
well, you may contact the Bureau of Reclamation, P.O. Box 61470, 
Attention: Area Manager, Boulder Canyon Operations Office, Mail Code 
BCOO-1000, Boulder City, NV 89006-1470 to schedule the measurement of 
the static water level in your well. No other data or method are 
available to determine if your well is pumping water that is replaced 
by lower Colorado River water. Thus, if a well user denies an employee, 
agent, or contractor of Reclamation or the USGS access to a well to 
make the required measurements, Reclamation will presume that the well 
pumps water that is replaced by water drawn from the lower Colorado 
River. If the USGS is physically unable to make the required 
measurements due to well construction, Reclamation will presume that 
the well pumps water that is replaced by water drawn from the lower 
Colorado River. Such a presumption about your well is made, absent the 
measurement of the static water elevation in your well, to maintain 
compliance with the BCPA.

[[Page 40923]]

The BCPA requires all persons using lower Colorado River water to have 
a contract for the storage and delivery of Colorado River water with 
the Secretary of the Interior or a perfected water right under state 
law which existed prior to June 25, 1929, the effective date of the 
BCPA.


Sec.  415.12  How do I determine the status of my well if it is located 
in the Yuma accounting area?

    (a) This section defines the boundaries of the Yuma accounting area 
and describes criteria for determining when water withdrawn by a well 
is lower Colorado River water or groundwater that is flowing to the 
lower Colorado River upstream of NIB. The Yuma accounting area is 
delineated in Figure 7 of this part.
    (b) The Yuma accounting area is hydrologically unique because much 
of the water diverted from the lower Colorado River and applied for 
irrigation generally flows underground across the SIB or under the 
Colorado River south of the NIB and does not return to the lower 
Colorado River in the United States through natural hydrologic 
processes. Water which does not return to the Colorado River above the 
NIB, or which does not return to the Limotrophe section (the section of 
the lower Colorado River which forms the international boundary between 
the United States and Mexico from the NIB to the SIB) as surface water 
is not available to satisfy consumptive use in the United States or 
delivery obligations to Mexico by the United States under the Mexican 
Treaty. Reclamation determined that wells within the Yuma accounting 
area deserve separate consideration due to the direction of groundwater 
flow and the deltaic nature of the Yuma area. Reclamation developed an 
accounting method to determine whether or not wells in this area pump 
lower Colorado River water, or water previously diverted from the lower 
Colorado River which would otherwise return to the lower Colorado 
River. In the Yuma accounting area, unmeasured return flow credit is 
calculated and credited to Arizona assuming there are no intervening 
wells or depletions from the time the flows leave an irrigation 
district to the time the flows return to the lower Colorado River. 
Therefore, in the Yuma accounting area, wells which pump groundwater 
which otherwise would have returned to the lower Colorado River 
upstream of the NIB are considered to be using lower Colorado River 
water.
    (c) Figure 7 of this part depicts a groundwater divide at the 
northern end of the Yuma accounting area. In the Yuma accounting area, 
north of the groundwater divide, groundwater flows north to the lower 
Colorado River above the NIB as of the adoption of this part. 
Reclamation will determine that your well pumps lower Colorado River 
water if your well is located in an area where groundwater flows toward 
the lower Colorado River upstream of the NIB, as depicted in Figure 7 
of this part.
    (d) Your well is exempt from this rule if your well is located 
south of the groundwater divide depicted in Figure 7 of this part where 
groundwater does not flow toward the lower Colorado River upstream of 
the NIB.

Subpart C--Adjustments to the River Aquifer, Floodplain, or the 
Accounting Surface


Sec.  415.20  What conditions may cause adjustments to the river 
aquifer boundaries and the elevation values which define the accounting 
surface?

    (a) Physical evidence to support adjustment to the geographic 
boundary of the river aquifer would include, but are not limited to, 
information derived from geologic studies, geophysical studies, well 
drilling, or the result of an extreme hydrologic event.
    (b) Changes in conditions that define the lower Colorado River 
profile may cause Reclamation to adjust the accounting surface 
elevation contours. Such changes in conditions may include, but are not 
limited to, changes in development or growth which may increase or 
decrease groundwater pumping in the Yuma accounting area, changes in 
water deliveries and/or uses, changes in reservoir operations, or 
changes in hydraulic conditions or other conditions that may result in 
significant water surface elevation changes in the lower Colorado River 
channel, reservoirs, and drainage ditches of the lower Colorado River.
    (c) The USGS and Reclamation will document the basis for any 
adjustments to the accounting surface elevations or the geographic 
boundary of the river aquifer and/or the accounting surface in a report 
which will be made available to the public. This part would be amended 
to reflect changes in the accounting surface elevations and/or the 
geographic boundary of the river aquifer.


Sec.  415.21  How will Reclamation make adjustments to the Yuma 
accounting area?

    (a) The method described in Sec.  415.12 will be used in the Yuma 
accounting area unless or until groundwater gradients in the Yuma 
accounting area change so as to require a re-evaluation of the areas 
from which groundwater flows toward the Colorado River upstream of NIB. 
Such a change could occur due to increased groundwater pumping and/or a 
redistribution of groundwater pumping in the Yuma accounting area.
    (b) In the event of a re-evaluation, Reclamation will review the 
method for the Yuma accounting area and modify it, as needed, following 
consultations with the Lower Division States. Reclamation's review will 
be conducted in coordination with the Lower Division States. Changes in 
the Yuma accounting area will be formalized by revising this part.

Subpart D--Notification of Well Status


Sec.  415.30  What is the procedure for determining the status of my 
well and how will I be notified?

    (a) The Regional Director will consider information relating to 
Sec. Sec.  415.10 through 415.12 to determine whether or not you are 
using water from the lower Colorado River without an entitlement. If 
your well is located within the accounting surface, the USGS will ask 
permission to measure the static water elevation in your well and the 
elevation of the land surface (or other appropriate elevation datum) at 
your well site to determine if the water pumped from your well is lower 
Colorado River water or water replaced by water drawn from the lower 
Colorado River. After the USGS measures the static water elevation in 
your well, the Regional Director will inform you about the status of 
your well in writing. If you do not give the USGS permission to measure 
the static water elevation in your well, the Regional Director will 
assume that water pumped from your well is lower Colorado River water 
or water replaced by water drawn from the lower Colorado River.
    (b) The Regional Director will establish a file for each 
determination that you dispute. This file is an administrative record 
and will contain all relevant information regarding the status of your 
well or other means of using water from the lower Colorado River. You 
are entitled to review the administrative record. All of the 
information considered by the Regional Director will be included in the 
administrative record.
    (c) If the Regional Director determines you are using water from 
the lower Colorado River without an entitlement, the Regional Director 
will notify you of the determination in writing by certified mail, 
return receipt requested, and provide the basis for the determination. 
The Regional Director's determination is final unless, within 60 days 
of the receipt of the notice, you file an

[[Page 40924]]

objection with the Regional Director. The Regional Director will make 
reasonable attempts to locate you to send the notice of determination 
and will document these attempts. If the Regional Director is unable to 
locate you, the determination will be final 60 days after the first 
attempt to deliver the notice.


Sec.  415.31  How may I challenge the determination of my well status?

    (a) If you file a challenge to the Regional Director's 
determination, you must include information to support your challenge. 
The Regional Director will review your challenge and any supporting 
information and will notify you in writing by certified mail, return 
receipt requested, whether the determination has been changed.
    (b) If the Regional Director does not change the determination, you 
may file an appeal with the Commissioner of Reclamation in writing 
within 30 days after receiving the notice that the determination was 
not changed. If you do not file an appeal with the Commissioner, the 
decision of the Regional Director is final 30 days after you received 
notice that the determination was not changed.
    (c) It is not necessary to include your supporting information in 
the appeal to the Commissioner. The Regional Director will send the 
administrative record to the Commissioner and will include the 
challenge you filed with the Regional Director and any supporting 
information you filed with the challenge. The Commissioner's 
determination will be made solely on the administrative record. The 
Commissioner's determination is the final determination of the 
Department of the Interior.
    (d) Determinations by the Regional Director that may or may not be 
challenged:

------------------------------------------------------------------------
           You may challenge                  You may not challenge
------------------------------------------------------------------------
(1) That your well is, or is not,        That your well in the
 located within the river aquifer.        floodplain is diverting lower
                                          Colorado River water.
(2) That your well is, or is not,        That the entire amount of water
 located within the floodplain portion    pumped from a well should be
 of the river aquifer.                    accounted for as a diversion
                                          of lower Colorado River water
                                          regardless of the hypothesized
                                          ratio of non-Colorado River
                                          water to lower Colorado River
                                          water.
(3) That your well is, or is not,        Whether or not Reclamation will
 located within the accounting surface    use the method described in
 portion of the river aquifer.            this part to determine if a
                                          well pumps lower Colorado
                                          River water or water replaced
                                          by water drawn from the lower
                                          Colorado River.
(4) That the static water elevation in   ...............................
 your well in the accounting surface
 portion of the river aquifer is, or is
 not, below or cannot be distinguished
 from the accounting surface (new
 measurements will be made by the USGS;
 measurements made by any other person
 or entity will not be accepted).
------------------------------------------------------------------------

Subpart E--Bringing Your Use of Lower Colorado River Water Into 
Compliance With Federal Law


Sec.  415.40  How may I lawfully use water from the lower Colorado 
River?

    You may be able to bring your use of water from the lower Colorado 
River into compliance with Federal law through one of the options 
provided below:
    (a) Arizona. If you are using water from the lower Colorado River 
in Arizona, you may be able to acquire an entitlement through a 
contract with the Secretary of the Interior. You may contact the 
Arizona Department of Water Resources, Attention: Arizona Department of 
Water Resources, Colorado River Management, 3550 North Central Avenue, 
Phoenix, Arizona 85012 for information about acquiring an entitlement 
under Arizona's lower Colorado River apportionment through a contract 
with the Secretary of the Interior.
    (b) California. All Colorado River water apportioned for use in 
California is already under permanent contract. However, if you are 
using water from the lower Colorado River in California, some water is 
available for domestic use in California through the Lower Colorado 
Water Supply Project (LCWSP). Unlawful users in California who are 
eligible as domestic users in California and who wish to participate 
under the LCWSP must enter into a water delivery subcontract with the 
City of Needles. The City of Needles is the only entity authorized to 
enter into a standard form subcontract for delivery of this water 
supply to project beneficiaries.
    (c) Nevada. All Colorado River water apportioned for use in Nevada 
is already under permanent contract. Any commitment to recognize new 
uses of Colorado River water in Nevada would be subject to terms 
established by the Southern Nevada Water Authority (SNWA). SNWA has an 
existing entitlement to the delivery and use of any Colorado River 
water not previously committed for use by other Nevada water users.
    (d) Any Lower Division State. If you are using water from the lower 
Colorado River in Arizona, California, or Nevada, you may be able to 
acquire an entitlement through an assignment, transfer, or lease from 
an existing entitlement holder within your state. The assignment, 
transfer, or lease must be approved by Reclamation.
    (1) You may also be able to obtain a right to use water as a 
customer of an existing entitlement holder even if your well or river 
pump is not located within the entitlement holder's service area. At 
the consent of the entitlement holder, your well or river pump and 
place of water use must be included within the entitlement holder's 
service area through a chan