Amicus Curiae Brief — Imperial Irrigation District v. State Water Resources Control Board

r~-. Suprenie Court, US.

(5) FILED

No. 91-30 JUL 11 1991

ayes OFFICE OF THE CLERK

Supreme Court of the Anited States

OCTOBER TERM, 1991

IMPERIAL IRRIGATION DISTRICT,

Petitioner,

Vv.

STATE WATER RESOURCES CONTROL BOARD,

Respondent,

ENVIRONMENTAL DEFENSE FUND, INC.,

Intervenor.

On Petition For Writ Of Certiorari To The

California Court Of Appeal,

Fourth Appellate District, Division One

AMICUS CURIAE BRIEF OF THE METROPOLITAN

WATER DISTRICT OF SOUTHERN CALIFORNIA

IN SUPPORT OF RESPONDENT

FRED VENDIG

General Counsel

KAREN L. TACHIKI

Assistant General Counsel

*Victork E. GLEASON, SR.

Sr. Deputy General Counsel

1111 Sunset Boulevard

Los Angeles, California 90012

(213) 250-6318

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

REIN Se a ae EE Se

> SI GE TI csensescceccnsseccnereenscesonetzees

Bile IIIT sicciciinceintinssiiiinltdaiitediipnsenintnnitinadiieenmnemenens

A. The Petition Misstates the Factual Impact of

Ie ccsanteastcnatvcenernpcinteeenbioussiemneesecensves

1. Not an Award of Damages .....................

2. Metropolitan Funding of Petitioner’s Con-

SOT VERIIR FUGIIGEB cccesscecceccescconceesecescessovens

3. Department of the Interior Approval .....

B. The Petition Misstates the Legal Impact of

ie SE ciecsitarsesaicieisshdertiniemninpuiinineimenereensisace

1. The Opinion Defers to Federal

I ceciiliiiseipicrinisileincnguinagnantonerenitintenns

2. The Opinion is Consistent with the Deci-

Gr. Ge IND eeiditececccccccscccnsccencrvnnsnns

a Arizona V. California ........ccccccccccccrreees

b. California v. United States .................

Oi BE Be Be erteaiaescecesseseevscstnseceneese

Ge GIN DRI cetcetevcrvcccttepsneszenees

3. The Opinion is Consistent with Federal

I

FA NR RD TARR Lane ar sees ner

il

TABLE OF AUTHORITIES

CASES Page

Arizona v. California, 373 U.S. 546 (1963) ..... 3,11,12,15

Arizona v. California, 376 U.S. 340 (1964) ........... 3

Bryant v. Yellen, 447 U.S. 352 (1980) ........eeeees 15

Califonria v. Federal Energy Regulatory Commis-

sion, ___ U.S. __., 109 L.Ed.2d 474 (1990) .. 15,16

California v. United States, 438 U.S. 645 (1978)... 14,15

First Iowa Hydro-Electric Cooperative v. Federal

Power Commission, 328 U.S. 152 (1946) ........ 16

Imperial rine District v. State Water Re-

sources Control Board, 225 Cal.App.3d

BE cecacconsesessscsaiseneenevsscssiingunescenebatiinngnennaandonates passim

Metropolitan Water District v. United States, 628

MM. TREE CORD sisinssrecinieviantatannrneetecreonse: 2

United States v. State Water Resources Control

Board, 182 Cal.App.3d 82 (1986) ............eeeee 3

STATUTES

Boulder Canyon Project Act, 42 USC § 617, et

IED. cacsencoucencnvenciicosesebnsnssnniunenisageimesennnenimmanindias passim

Reclamation Act of 1902, 42 USC § 3838 ............... 14

California Water Code § 1011 .......ccccccccscccsscscccscceee 13,14

Deering’s California Water Code, Uncodified Act

IED ccesasncnchcsubavncukensdauaiteeameaniniemannciaaninte 2

Metropolitan Water District Act, California Stat-

utes 1969, ch. 209, as amended ..................066 2

West’s California Water Code, Appendix § 109 .... 2

REGULATIONS

EP’ , 2 | y penne 3,16,17

Metropolitan Water District Administrative Code

Section 6430, subdivisions (a) and (b) ............. 1

ill

Table of Authorities Continued

Page

OTHER AUTHORITIES

State Water Resources Control Board Decision

casas eatuntenbunduwenscneneneees 6

Report of Simon H. Rifkind, Special Master, Ar-

zona v. California, December 5, 1960 ............ 12,13

Wilbur & Ely, the Hoover Dam Documents (1948)

2d Edition, Gove nment Printing

a epsuadonadovecooves 2,3,8,10,12

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

No. 91-30

IMPERIAL IRRIGATION DISTRICT,

Petitioner,

Vv.

STATE WATER RESOURCES CONTROL BOARD,

Respondent,

ENVIRONMENTAL DEFENSE FUND, INC.,

Intervenor.

On Petition For Writ Of Certiorari To The

California Court Of Appeal,

Fourth Appellate District, Division One

AMICUS CURIAE BRIEF OF THE METROPOLITAN

WATER DISTRICT OF SOUTHERN CALIFORNIA

IN SUPPORT OF RESPONDENT

Counsel! for The Metropolitan Water District of

Southern California (Metropolitan), a _ political

' Subsections 6430(a) and (b) of the Metropolitan Water Dis-

trict Administrative Code designate Metropolitan’s General

Counsel as its authorized law officer.

subdivision? of the State of California, submits this

brief as amicus curiae on behalf of that District and

in support of Respondent, State Water Resources

Control Board. The purpose of this brief is to call the

Court’s attention to important misstatements of fact

and law in the Petition, of which Metropolitan has

special knowledge and which are relevant to the dis-

position of the Petition.

I.

INTEREST

Metropolitan provides imported water to 27 mem-

ber public agencies, needed for domestie and munic-

ipal uses within a 5,100 square mile service area on

the Southern California coastal plain. Fifteen million

people, half of California’s population, currently live

within that semi-arid area which includes portions of

six counties and well over 200 major urban and sub-

urban communities.

Metropolitan has a direct interest in the issues

raised by the Petition because it has contracts with

the Secretary of the Interior (Secretary) under Sec-

tion 5 of the Boulder Canyon Project Act, 42 USC

§ 617 et seg. (BCPA) for Colorado River water sup-

plies. In 1990 those supplies provided nearly half of

* Metropolitan is a public agency existing pursuant to authority

delegated by the California Legislature in the Metropolitan Water

District Act (Statutes 1969, ch. 209, as amended; West’s Water

Code—Appendix § 109; Deering’s Water Code—Uncodified Act

§ 9129b).

* Wilbur & Ely, The Hoover Dam Documents (1948) 2d Edition,

GPO, Appendices 1007, 1008, 1012; Metropolitan v. U.S. 628

F.Supp. 1018, 1024 (1986).

Metropolitan’s water supply. Metropolitan’s contracts

are similar to Petitioner’s BCPA contract that is the

subject of this Petition (Ptn. p. 9).

Both Metropolitan’s and Petitioner’s contracts con-

tain the same water delivery allocation provisions for

California’s share of Colorado River water. Both also

require reasonable beneficial use of those allocations.

(Wilbur & Ely, supra, pp. A508-510, A606-607). Ac-

cordingly, Metropolitan is subject to this Court’s de-

cree in Arizona v. California (376 U.S. 340, 346, 347

(1964))* and to the Secretary’s regulations (43 CFR

Part 417) which the Petition invokes (Ptn. p. 20).

Metropolitan is facing serious water supply short-

ages because of increasing water demands and sig-

nificant limitations and uncertainties in its water

supplies. Those supplies consist of Metropolitan’s Col-

orado River BCPA contract supply and Northern Cal-

ifornia water provided under a contract with the State

of California for service from California’s State Water

Project (SWP). SWP supplies are currently under an

extensive, multi-year review by Respondent under its

statutory duties and pursuant to directions of the Cal-

ifornia Court of Appeal (United States v. SWRCB

(1986) 182 Cal.App.3d 82, 97, 98, 120). The State of

California has cut SWP water deliveries to Metro-

politan this year by 80 percent because of an ongoing

five-year drought.

Clearly, Metropolitan has a compelling interest in

assuring that California’s limited share of the federal

‘This Court issued the opinion on which that decree is based

in Amzona v. California (1963) 373 US 546.

Boulder Canyon Project water supply is used as ef-

ficiently as possible. It has therefore undertaken ex-

tensive efforts to provide more efficient utilization of

existing water supplies wherever possible, including

a long-term multi-million dollar water conservation

program with Petitioner which substantially facilitates

Petitioner’s compliance with Respondent’s decision

that is the subject of this case.

Metropolitan participated in the administrative pro-

ceedings which are the subject of the Petition, and

submitted a letter to the California Supreme Court

supporting Respondent’s successful opposition to re-

~ view by that Court. The Petition also refers to Met-

ropolitan (Ptn. pp. 1, 2, 6, 14, 22, 26, 28).

Metropolitan is, in addition, participating in current

proceedings initiated by the Bureau of Reclamation,

Department of the Interior, to develop comprehensive

federal regulations for administering water entitle-

ments under the BCPA (56 FR 16291, April 22, 1991).

Relevant portions of the draft regulations are at-

tached as Items 4 to 8 of the Appendix to this brief,

to show the Bureau’s recognition of state require-

ments regarding beneficial and reasonable water uses

and water conservation planning.

Il.

SUMMARY OF ARGUMENT

The California Court of Appeal opinion in Imperial

Irrigation District v. State Water Resources Control

Board, 225 Cal.App.3d 548 (Opinion) does not raise

any significant issue requiring review by this Court.

It does not decide a federal question in a way that

conflicts with applicable decisions of this Court or an

important question of federal law that has not already

been settled by this Court; and does not involve any

special and important reason for exercise of judicial

discretion. More specifically, the Opinion does not as-

sert any state jurisdiction that conflicts with the Sec-

retary’s administration of the Boulder Canyon Project

Act.

Unfortunately, the Petition contains serious mis-

statements of fact and law. It asserts that the Opinion

constitutes a multi-million dollar damage award

against Petitioner although that is not the case. Met-

ropolitan is, instead, furnishing Petitioner well over

$120 million under a water conservation program

which the Department of Interior has formally ap-

proved. The Petition also mistakenly asserts that the

Opinion fails to defer to federal authority and con-

flicts with the decisions of this Court, although that

also is not the case. The Opinion expressly defers to

federal administration of the BCPA; and Respondent’s

water conservation decision which the Opinion affirms

does not conflict with the decisions of this Court or

with the existing or proposed federal BCPA regula-

tions.

III.

ARGUMENT

A. The Petition Misstates the Factual Impact of the

Opinion

The Petition grossly misstates the factual impact

of the Opinion by asserting that it approves an order

which ‘‘amounts to an award of damages against the

farmers of IID in favor of the urbanites on Califor-

nia’s south coastal plain who depend upon MWD for

OOO — — —ee—e ee

water,” constituting a windfall to Metropolitan in the

‘$100 million and more range” (Ptn. p. 14).

1. Not an Award of Damages

Contrary to the Petition’s assertions, the Opinion

merely reaffirms an administrative determination’ re-

quiring planning and implementation of measures to

prevent waste of large amounts of water (Opn. at

562, 569). There was no dispute that very large quan-

tities of water were being lost (Opn. at 533). Petitioner

did not dispute that substantial losses of water re-

sulted from canal spills, excess tai!water and other

wasteful practices, such as canal seepage (Opn. at

570). Decision 1600 concluded:

‘Approximately one million acre-feet per year

of Colorado River water enter the Salton Sea as

irrigation return flow from Imperial Irrigation

District. This large quantity of freshwater is lost

to further beneficial consumptive use and has con-

tributed to the flooding of property adjoining the

Salton Sea.”’ (Decision 1600, p. 66.)

\

2. Metropolitan Funding of Petitioner’s Conservation

Projects

Perhaps the most serious aspect of the Petition’s

factual misrepresentation is its failure to advise this

Court that Metropolitan is providing Petitioner well

over $120 million to implement water conservation

5 Decision 1600, a 71-page review of the history of the ad-

ministrative proceedings, the evidence taken by Respondent,

Respondent’s findings and conclusions, and ‘an order requiring

Petitioner to take certain actions (Opn. p. 552).

projects® and an additional $2.6 million annually for

operating, maintenance and replacement costs well

into the next century. Indeed, the Opinion states:

‘“‘We also note that an agreement has been ne-

gotiated between IID and the Metropolitan Water

District which appears to satisfy many of the fi-

nancial and other problems IID previously as-

serted as impediments to implementation of

Decision 1600.’”’ (Opn. p. 557.)

Metropolitan entered into that agreement with

Petitioner after four years of extensive negotiations,

and required another year to obtain approvals from

other BCPA water contractors in California and the

Secretary. Implementation of the agreement required

the following documentation:

(1) A 1988 Conservation Agreement between

Metropolitan and Petitioner;

(2) A 1989 Approval Agreement among Metro-

politan, Petitioner, Palo Verde Irrigation Dis-

trict (Palo Verde) and the Coachella Valley

Water District (Coachella); and

(3) A 1989 Supplemental Approval Agreement

between Metropolitan and Coachella.

All three agreements extend for a minimum of 35

years after full implementation of the conservation

‘The Metropolitan funds will also compensate Petitioner for

indirect costs and potential obligations resulting from that im-

plementation.

program, currently expected to occur in 1994, and

continue until terminated.’

In brief, the Conservation Agreement calls for Met-

ropolitan to bear the capital, annual direct and in-

direct costs of fifteen different conservation projects

that Imperial will implement over a five-year period.

In 1988 dollars, the capital costs of the conservation

program are estimated to total $97,758,000, the in-

direct costs $23,000,000 and the annual direct costs

will increase to $2,635,600 by 1994. In return, Met-

ropolitan will be entitled to increase its diversions

from the Colorado River by the amount of water the

conservation projects save, approximately 106,110

acre-feet annually upon full implementation of the

conservation program except under certain limited

conditions.

The Approval Agreement provides the consent of

Coachella and Palo Verde’ to the Conservation Agree-

ment. It addresses the verification of water con-

served, circumstances under which Metropolitan has

to reduce its use of conserved water, conservation

project substitution and augmentation, groundwater

storage and recovery, banking of conserved water,

and efficiency of water use.

7 The documentation contains over 100 pages. We merely sum-

marize it in order to avoid burdening the Court with additional

technical material. The documentation package is of course avail-

able upon request.

8 Coachella and Palo Verde also have BCPA Section 5 Water

Supply Contracts with the Secretary, Wilbur & Ely, supra, Ap-

pendices 1006, 1108. Each of their BCPA contracts contain the

same water delivery allocation provisions as do the Section 5

Contracts of Metropolitan and Petitioner, Jd., pp. A492-494,

A646-648.

The Supplemental Agreement deals with a limita-

tion on Coachella’s net Colorado River diversions and

the circumstances under which Metropolitan would re-

duce its use of conserved water.

3. Department of the Interior Approval

The Petition also erroneously asserts that the Opin-

ion conflicts with the Secretary’s BCPA authority.

(Ptn. pp. 2, 14, 22, 28.) In fact, the Secretary, acting

through the Bureau of Reclamation, approved the

Conservation Agreement by a January 17, 1989 letter

to Metropolitan and Petitioner. In that letter, the

Bureau advised that it could adjust its administration

of the Boulder Canyon Project accordingly.* More spe-

cifically, it stated:

‘“‘We have reviewed the [Conservation] Agree-

ment and wish to complement both agencies on

your successful efforts to develop a plan which

will result in more efficient utilization of the lim-

ited water resources of the Colorado River. We

are prepared to facilitate the implementation of

the Agreement.

“If, because of the Agreement, different op-

erational procedures are required to properly ad-

minister the deliveries of Colorado River water

to the California [BCPA] contractors, we will de-

velop revised operational procedures and provide

a draft to you, the other California Colorado River

contractors, and the Colorado River Board of Cal-

ifornia for review.”

* A copy of that letter is attached as Item 1 in the Appendix

to this brief.

10

B. The Petition Misstates the Legal Impact of the

Opinion

Contrary to the Petition’s assertions (Ptn. pp. 2, 6,

7, 14, 19, 28), the Opinion does not conflict with the

Secretary’s administration of the BCPA. To the con-

trary, the Opinion expressly defers to federal BCPA

jurisdiction and conforms to the decisions of this Court

and to the Secretary’s regulations.

1. The Opinion Defers to Federal Authority

Far from causing the confrontation or dual system

the Petition asserts (Ptn. pp. 2,28), the Opinion spe-

cifically recognizes that the BCPA ‘“‘vested in the Sec-

retary of the Interior the power to enter into

contracts for the delivery and allocation of water to

users in the southwest United States’’ (Opn. at 561).

The Opinion also finds that Respondent’s Decision

1600 “in no way interfered with’ Petitioner’s con-

tractual or statutory entitlement to Colorado River

water (Opn. at 562). It recognizes that California’s

share of Colorado River water has been allocated by

the California Seven-Party Agreement (Opn. at 561)

which the Secretary has incorporated in each of his

BCPA Section 5 water delivery contracts with the

California BCPA Water Contractors (Wilbur & Ely,

pp. 107-109).

Certainly the Opinion does not assert exclusive ju-

risdiction against the Secretary as the Petition argues

(Ptn. p. 6). It merely construes the application of state

law to state political subdivisions. It rules that Cali-

fornia has validly delegated responsibility to

Respondent for supervising the efforts of California’s

political subdivisions to prevent gross waste of Cali-

fornia’s limited water supplies. More specifically, it

rules that that delegation and Respondent’s exercise

11

of it conform to California’s constitutional and other

statutory mandates (Opn. at 561 [valid state statutory

delegation], at 563 [valid exercise], at 567 [compliance

with California’s separation of powers doctrine], at

569 [valid state administrative process)).

2. The Opinion is Consistent with the Decisions of This

Court

The Petition argues that the Opinion conflicts with

decisions of this Court (Ptn. pp. 15-19, 23-28). Those

decisions, however, recognize that state law may ap-

ply to a BCPA contractor’s use of its BCPA allocation

so long as that does not conflict with the Secretary’s

contract allocation of Project water supply or the

Project’s efficient operation and utilization.

a. Arizona v. California

The Petition quotes portions of this Court’s 1963

decision in Arizona v. California 373 US 546, dele-

gating authority to the Secretary to allocate BCPA

water supplies and to assure efficient operation and

utilization of the project, 373 US at 585-590. That

decision, nevertheless, does not purport to prevent

state efforts to assure that its BCPA water alloca-

tions are used efficiently. It merely requires that those

efforts do not interfere with the Secretary’s admin-

istration of the BCPA.

It expressly recognizes that BCPA Section 18"° al-

lows the states to do things not inconsistent with the

© Section 18 provides that:

“Nothing herein shall be construed as interfering with such

rights as the States now have either to the waters within their

borders or to adopt such policies and enact such laws as they

may deem necessary with respect to the appropriation, control

12

BCPA or with federal control of the river, 373 US

at 588. In short, the decision prevents the states only

from imposing restrictions that could frustrate con-

tract allocations of BCPA water supplies or efficient

project operation; or thwart full realization of the

benefits Congress intended this national project to

bestow (373 US at 588-590).

The California Court of Appeal Opinion does not

change the Secretary’s contract allocation of BCPA

water or thwart efficient project operation or full re-

alization of the project benefits Congress intended.

Instead, it recognizes Respondent’s responsibility to

assure that each California BCPA contractor uses its

respective BCPA allocation efficiently. And, indeed,

each of the BCPA contracts requires that the BCPA

water deliveries must be used beneficially and rea-

sonably (Wilbur & Ely, pp. 107-109, pp. A508-511,

A605-607.

That reflects the December 1960 final report of this

Court’s special master in Arizona v. California which

specifically noted that California water uses would

eventually have to be regulated much more efficiently:

“The supply of available water in the Colorado

River has in the past been substantially larger

than the demand for it; in short, every project

received all the water it requested. In such cir-

cumstances it is not surprising that a great deal

of water has been wasted, as is apparent, for ex-

ample, from the very large unused runoff each

and use of water within their borders, except as modified by

the Colorado River compact or other interstate agreement.” (45

Stat 1065; 43 USC Sec. 617q.)

13

year into the Salton Sea. Undoubtedly when and

if water becomes scarce in this area, its use will

be regulated much more efficiently than at pres-

ent. It appears that such practices as lining ca-

nals, reducing over-ordering of water, re-using

runoff water, reducing evaporation, and improv-

ing channels can be instituted in the future and

will effect a substantial reduction in the amount

of water needed to satisfy existing California uses.

It is impossible to determine exactly how much

more efficiently water will be used if the present

condition of abundance turns into one of short-

age, but it is clear that savings will be such that

California’s existing uses could be satisfied by

substantially less water than is presently diverted.

(Report of Simon H. Rifkind, Special Master,

December 5, 1960; p. 103, note 25; emphasis

added).

The California Court of Appeal Opinion merely re-

affirms, thirty years later, Respondent’s authority to

require those types of increased water use efficien-

cies. It does not interfere with the provisions of the

BCPA contracts, with this Court’s 1964 decree (Ptn.

p. 17) or with the operation of the Boulder Canyon

Project. Rather than purporting to authorize excessive

use of water from the mainstream or otherwise in-

terfering with the Secretary’s BCPA operations, it

approves Respondent’s authority to complement the

Secretary’s administration of the BCPA.

On the other hand, the Petition’s gratuitous ref-

erence to California Water Code Section 1011 (Ptn.

p. 24, note 26) manifests a disturbing intent to un-

dermine the Secretary’s exclusive BCPA contract

water allocation authority on an issue which was not

14

before the California Court of Appeal and which its

Opinion does not address. That section! approves

transfers of conserved water to others if separate

transfer authority exists. An attempt by Petitioner to

transfer conserved BCPA water other than in ac-

cordance with the priorities set forth in the BCPA

contracts would clearly conflict with the Secretary’s

exclusive BCPA water allocation authority.

b. California v. United States

The Petition also attempts to limit this Court’s de-

cision in California v. United States (1978) 4388 US

645, (Ptn. pp. 25, 26). That decision recognizes the

authority of a state to regulate water rights for fed-

eral Reclamation projects so long as the state does

not impose conditions that are inconsistent with

congressional directives, 438 US at 678. It relies on

Section 8 of the Federal Reclamation Act, 43 USC

383, which is similar to Section 18 of the BCPA.

In noting the singular legislative history of the

BCPA, that decision reaffirmed the Congressional di-

rective that the states not “interfere with the Sec-

retary’s power to determine with whom and on what

terms water contracts be made,’ 438 US at 674. Of

‘The relevant portion ot Water Code Section 1011 provides:

“(b) Water, or the right to the use of water, the use of which

has ceased or been reduced as the result of water conservation

efforts as described in Subdivision (a), may be sold, leased, ex-

changed, or otherwise transferred pursuant to any provision of

law relating to the transfer of water or water rights, including,

but not limited to, provisions of law governing any change in

point of diversion, place of use, and purpose of use due to the

transfer.”

15

| special importance here, it also recognized that Arv-

zona v. California “‘plainly allows the States to do

things not inconsistent with the Project Act or with

federal control of the river,’ Jd., note 29. The Cali-

fornia Court of Appeal’s Opinion clearly complies with

that criterion.

c. Bryant v. Yellen

The Petition’s reference to Bryant v. Yellen (1980)

447 US 352, (Ptn. p. 26) is also misdirected since that

decision focused on the present perfected rights as-

pect of the BCPA. It did not purport to modify Ar-

izona v. California or California v. United States. In

fact, it recognized that, in determining present per-

fected rights, the BCPA did not displace state law,

although determination of whether state water rights

qualify as present perfected rights is a question of

federal law, 447 US at 370, 371.

d. California v. FERC

The Petition also invokes this Court’s recent deci-

sion in California v. FERC (1990) __ US __, 109

L.Ed.2d 474. However, that decision did not address

the BCPA nor suggest any modification of Arizona

v. California. It distinguished a state’s ability to con-

dition water rights issued for a federal Reclamation

Act water project from a state’s ability to condition

a hydroelectric generating license issued by the Fed-

eral Energy Regulatory Commission (FERC) under

the Federal Power Act (FPA), 109 L.Ed.2d at 489,

490. The state sought to impose much stricter stream-

flow limitations on the hydropower project than FERC

required, thus reducing the power generating capa-

bility which FERC had approved, 109 L.Ed. at 484.

16

In refusing to disturb its 1946 interpretation of the

FPA in First Iowa Hydro-Electric Cooperative v. FPC,

328 US 152, this Court reaffirmed the ‘‘No Conflict’’

criterion for State participation and concluded that,

“The California requirements for minimum in-

stream flows cannot be given effect and allowed

to supplement the federal flow requirements. A

state measure 1s ‘preempted to the extent it ac-

tually conflicts with federal law, that is, when it

is impossible to comply with both state and federal

law, or where the state law stands as an obstacle

to the accomplishment of the full purposes and

objectives of Congress’ [citations]’’, 109 L.Ed.2d

at 491; emphasis added.

In that case, the responsible federal agency (FERC)

had concluded that the state’s instream flow require-

ments interfered with FERC’s authority, Idem. In the

current case, the Secretary has not asserted any con-

flict with BCPA administration, and the Opinion does

not purport to authorize any conflicting action by

Respondent. In fact, all indications are that the Sec-

retary considers Respondent’s water conservation ef-

forts appropriate. |

3. The Opinion is Consistent with Federal Administration

The Secretary has approved Metropolitan’s Water

Conservation Agreement with Petitioner (Appendix,

Item 1), which the Opinion notes appears to satisfy

many of the requirements of Respondent’s Water

Conservation Decision and its Order WR 88-20. In

addition, Respondent’s water conservation Decision,

which the Opinion approves, is also consistent with

the present federal BCPA regulations (43 CFR Part

17

417, Procedural Methods for Implementing Colorado

River Water Conservation Measures with Lower Basin

Contractors and Others (Procedural regulations)) and

with draft BCPA regulations for administering enti-

tlement to Colorado River water in the Lower Basin

(:sdministrative regulations).!?

The existing procedural regulations describe the

basic conservation criterion as a determination ‘‘that

deliveries of Colorado River water to each Contractor

will not exceed those reasonably required for beneficial

use’ under the respective BCPA contracts (43 CFR

§ 417.2; emphasis added). The draft administration

regulations are more explicit. They expressly provide

for state participation in assuring that BCPA water

is used beneficially and reasonably, and they are

premised on the recognition that,

“Prudent management is especially critical now

that management of the lower Colorado River has

'2 The Bureau of Reclamation published an advance notice of

intent to propose rulemaking, in the Federal Register on

April 22, 1991 (56 FR 16291) advising that it is in the process

of developing draft regulations for Administering Entitlement

to Colorado River Water in the Lower Colorado River Basin.

The Bureau subsequently circulated a 54-page package of draft

regulations for comment by July 15, subsequently extended to

August 15. A copy of the Bureau’s transmittal letter, imple-

mentation schedule and index to those regulations is included in

the Appendix to this brief, along with the following four draft

sections that are particularly relevant to the arguments in the

pending Petition:

415.6 Beneficial use of entitlements;

.10 Reduction in entitlement due to nonuse;

.17 Water conservation;

.20 Penalties.

18

entered an ‘era of limits’ in which future requests

for water are likely to exceed the annual 7.5

million-acre-foot apportionment of water available

to the Lower Colorado River Basin under normal

conditions.’’ (Appendix Item 2.)

Accordingly, the draft regulations specifically look

to the states for assistance “‘in determining whether

or not a user of Colorado River water is applying

that water to beneficial use within that respective

State and pursuant to the State’s laws”’ (§ 415.6(c)(1);

Appendix Item 5); “in making a determination of non-

use’ (§ 415.10(a); Appendix Item 6); in determining

deficiencies in water conservation plans (§ 415.17(f);

Appendix Item 7); and in determining reductions in

entitlement (§ 415.20(a); Appendix Item 8).

In light of the Secretary’s ongoing program to rec-

ognize an explicit state water conservation role under

the BCPA regulations, there is certainly no need to

review the California Court of Appeal Opinion. The

normal rulemaking process will provide an efficient

and orderly forum for articulating the appropriate

technical and institutional process needed to assure

that the Boulder Canyon Project will continue to pro-

vide the national benefits Congress intended.

IV.

CONCLUSION

The California Court of Appeal Opinion affirming

Respondent’s water conservation Decision does not

conflict with the Boulder Canyon Project Act, any

existing or proposed regulation thereunder or the de-

cisions of this Court; and does not present any special

and important reason for granting certiorari. The

ian

19

Metropolitan Water District of Southern California

accordingly supports Respondent, State Water Re-

sources Control Board, in urging the Court to deny

Imperial Irrigation District’s Petition for Certiorari.

Respectfully submitted,

FRED VENDIG

General Counsel

KAREN L. TACHIKI

Assistant General Counsel

*VICTOR E. GLEASON

Sr. Deputy General Counsel

1111 Sunset Boulevard

Los Angeles, California 90012

(213) 250-3618

*Counsel of Record

DATED: July 10, 1991

re rr a

APPENDIX

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APPENDIX

Item Page

1. Dept. of Interior Letter Approving IID/MWD

Water Conservation Agreement (January 17,

RENIN dail Sass tedasatedliséelannsdegsbavenetnibadinseiorednsieonses la

2. Dept. of Interior Letter Transmitting Draft

BCPA Administration Regulations ............... Ta

3. Schedule for Implementation of Draft BCPA

ER a 10a

4. Index to Draft Regulations ..................cceeseeeeeeees 12a

5. Draft Regulation § 6 (Beneficial Use of

SEE SIRES I ee nO nC aD l4a

6. Draft Regulation § 10 (Reduction in Entitlements

a cdbaciabiohewande 15a

Draft Regulation § 17 (Water Conservation) ..... 18a

ad

Draft Regulation § 20 (Penalties) ........00...0.0.. 2la

i.

DEPARTMENT OF INTERIOR LETTER

APPROVING IID/MWD WATER CONSERVATION

AGREEMENT

(January 17, 1989)

“ a

la

[SEAL] United States Department of the Interior

BUREAU OF RECLAMATION

WASHINGTON, D.C. 20240

IN REPLY

REFER TO:

LC-440 January 17, 1989

Mr. Charles L. Shreves Mr. Carl Boronkay

General Manager General Manager

Imperial Irrigation District the Metropolitan Water

P.O. Box 937 District of Southern

Imperial, CA 92251 California

P.O. Box 54153

Los Angeles, CA 90054

Subject: Imperial Irrigation District (IID)—The Metropol-

itan Water District of Southern California (MWD)

December 22, 1988, Agreement for the Imple-

mentation of a Water Conservation Program and

Use of Conserved Water (Agreement) (Water

Conservation)

Gentlemen:

The Bureau of Reclamation appreciates receiving a copy

of the subject Agreement. We have reviewed the Agree-

ment and wish to compliment both agencies on your suc-

cessful efforts to develop a plan which will result in more

efficient utilization of the limited water resources of the

Colorado River. We are prepared to facilitate in the im-

plementation of the Agreement.

We understand that after reviewing the Agreement, both

Coachella Valley Water District (Coachella) and the Palo

Verde Irrigation District (Palo Verde) have expressed con-

cerns regarding potential impacts on their existing enti-

tlements to water from the Colorado River. We are

prepared to operate the river in a manner that will permit

us to deliver the water to MWD at its Lake Havasu di-

2a

version point in an amount equivalent to the water con-

served under the Agreement, as long as it can be

accomplished within the contractual framework under the

Seven Party Agreement and California law. We emphasize,

however, that, to the extent the agreement has detrimen-

tal impacts on the existing rights of Coachella and Palo

Verde, such activity would only be carried out with their

concurrence. We encourage you to continue your efforts

to obtain their concurrence.

If, because the Agreement, different operational proce-

dures are required to properly administer the deliveries of

Colorado River water to the California contractors, we will

develop revised operational procedures and provide a draft

to you, the other California Colorado River contractors,

and the Colorado River board of California for review.

Again, we would like to comment you for your efforts to

more efficiently use Colorado River water.

Sincerely,

/s/ Edward M. Hallenbeck

Edward M. Hallenbeck

Lower Colorado Regional Director

cc: Mr. Tom Levy

General Manager-Chief Engineer

Coachella Valley Water District

P.O. Box 1058

Coachella CA 92236

Mr. Gerald M. Davisson

Manager

Palo Verde Water District

180 West 14th Avenue

Blythe CA 92225

3a

Mr. Dennis B. Underwood

Executive Director

Colorado River Board of California

107 South Broadway, Room 8103

Los Angeles CA 90012

4a

CATEGORICAL EXCLUSION CHECKLIST

PROJECT: Water Conservation Program, Imperial Irri-

gation District, Imperial County, California.

NATURE OF ACTION: Agreement for the implementa-

tion of a water conservation program and use of conserved

water—Imperial Irrigation District and the Metropolitan

Water District of Southern California.

EXCLUSION CATEGORY: Approval, renewal, transfer,

and execution of an original, amendatory, or supplemental

water service or repayment contract where the only results

will be to implement an administrative or financial practice

or change (516 DM6 Appendix 9.D14).

EVALUATION OF CRITERIA FOR CATEGORICAL EX-

CLUSION

1. This action or group No_X~_ Uncertain Yes _—

of actions would have

a significant affect

on the quality of the

human environment.

2. This action or group No_X_ Uncertain. Yes _

of actions would in-

volve unresolve ‘ con-

flicts concerning

alternative uses of

available resources.

EVALUATION OF EXCEPTIONS TO ACTIONS WITHIN

CATEGORICAL EXCLUSION

1. This action would No_X~_ Uncertain. Yes _

have significant ad-

verse effects on pub-

lic health or safety.

5a

2. This action would af- No_XW_ Uncertain. Yes —

fect unique’ geo-

graphical features

such as_ wetlands,

wild or scenic rivers,

refuges, flood plains,

or prime and unique

farmlands.

3. This action would No_XW_ Uncertain. Yes _—

have highly contro-

versial environmen-

tal effects.

4. The action will have No_XW_ Uncertain. Yes__

highly uncertain envi-

ronmental effects or

involve unique or un-

known environmental

risks.

5. This action will seta No_XW_— Uncertain. Yes _

precedent for future

actions.

6. This action is related No_XW_ Uncertain. Yes __

to other actions with

individually insignifi-

cant but cumulatively

significant effects.

7. This action will affect No_X_ Uncertain. Yes —

properties listed or el-

igible for listing in the

National Register of

Historic Places.

6a

8. This action will af- No_X-_— Uncertain. Yes —

fect a species listed

or proposed to be

listed as Endangered

or Threatened.

9. This action threatens No_X-_ Uncertain. Yes __

to violate Federal,

State, local, or tribal

law or requirements

imposed for protec-

tion of the environ-

ment.

NEPA ACTION PROPOSED: Categorical Exclusion _X_

EA tan

EIS cae

EXPLANATION/REMARKS/COMMITMENTS: See enclo-

sures and reference the Environmental Impact Report for

the subject action, available from Mr. Mike Walker, At-

tention: LC-410.

Preparer: /s/ Michael L. Walker

Chief, Fish and Wildlife Branch

Concur: /s/ Robert W. Johnson Date: 1/3/89

Regional Supervisor of Water and Land

Operations

Concur: /s/ [Illegible] Date: 1/6/89

Regional Archaeologist

Concur: /s/ Cecil Ouellette Date: 1/6/89

Regional Environmental Officer

Categorical Exclusion No. LC-89-2 Date: 1/6/89

2.

DEPARTMENT OF INTERIOR LETTER TRANSMITTING

DRAFT BCPA ADMINISTRATION REGULATIONS

: x ie

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7a

[SEAL] United States Department of the Interior

BUREAU OF RECLAMATION

LOWER COLORADO REGIONAL OFFICE

P.O. BOX 427

BOULDER CITY, NEVADA 89005

IN REPLY

REFER TO:

LC-440

WTR-4.10 JUN 04, 1991

To: All Colorado River Contract Water Users

From: Regional Director

Subject: Draft Proposed Regulations for Administering

Entitlements to Colorado River Water in the

Lower Colorado River Basin (Water Rights)

A copy of the subject draft regulations is enclosed for

your information. If adopted, the regulations will imple-

ment the criteria by which our office, as the Secretary of

the Interior’s (Secretary) authorized representative, will

fulfill the Secretary’s responsibility as watermaster of the

lower Colorado River and administer entitlements to the

use of its waters. The proposed regulations will enhance

the Bureau of Reclamation’s (Reclamation) ability to elim-

inate illegal water diversions by unauthorized users and

help ensure that Colorado River water consumptively used

in Arizona, California, and Nevada is in fact used by the

intended users and is put to beneficial use that does not

exceed authorized amounts. Prudent management is es-

pecially critical now that management of the lower Colo-

rado River has entered an “era of limits” in which future

requests for water are likely to exceed the annual 7.5-

million-acre-foot apportionment of water available to the

Lower Colorado River Basin under normal conditions.

The proposed regulations are a formal written statement

of existing management and operational requirements and

8a

guidelines. Therefore, the regulations do not add new reg-

ulatory or environmental obligations. The proposed regu-

lations do, however, propose adding an administrative fee,

which would be paid by water users, to offset Reclama-

tion’s cost of administering the water entitlements.

Although several iterations of the draft regulations have

been circulated within Reclamation and many revisions and

refinements have been made, the draft regulations are still

being reviewed within Reclamation and are subject to fur-

ther revision based on that ongoing review. We are not

soliciting comments on the regulations from the water

users or the general public at this time because this is a

preliminary draft. However, contractual water users within

the States of Arizona, California, or Nevada may submit

comments through the applicable State authority as fol-

lows:

Mrs. Elizabeth A. Rieke Mr. Gerald R. Zimmerman

Director Executive Director

Arizona Department of Water Colorado River Board of

Resources California

15 South 15th Avenue 770 Fairmont Avenue

Phoenix, AZ 85007 Suite 100

Glendale, CA 91203-1035

Mr. Jack L. Stonehocker

Director

Colorado River Commission of

Nevada

State Mail Room Complex

Las Vegas, NV 89158

It is not our intent to encourage comments on the pro-

posed regulations at this time. Water users and other in-

__terested parties will have a 60-day period to review and

comment on the regulations after they are published as

proposed regulations in the Federal Register. At present,

we estimate the proposed regulations will be published in

November 1991. Following publication in the Federal Reg-

ister, we will respond to specific comments and will likely

9a

hold a series of public meetings to accept input from water

users, state agencies, and other interested parties. At the

close of the public comment period, comments will be eval-

uated and Reclamation will publish in the Federal Register

a synopsis of the issues that were raised and Reclamation’s

responses.

If there are questions on the process of developing the

proposed regulations please contact Mr. Dale Ensminger,

of this office, Attention: LC-449.

/s/ Robert J. Towles

Enclosure:

cc: Mrs. Elizabeth A. Rieke Mr. Gerald R. Zimmerman

Director Executive Director

Arizona Department of Colorado River Board of

Water Resources California

15 South 15th Avenue 770 Fairmont Avenue

Phoenix, AZ 85007 Suite 100

Glendale, CA 91203-1035

Mr. Jack L. Stonehocker

Director

Colorado River Commission

of Nevada

State Mail Room Complex

Las Vegas, NV 89158

(w/o cy of encl and w/cy of mailing list to ea)

3.

SCHEDULE FOR IMPLEMENTATION OF DRAFT BCPA

REGULATIONS

10a

06/27/91

IMPLEMENTATION OF REGULATIONS FOR

ADMINISTERING ENTITLEMENTS TO COLORADO

RIVER WATER

LOWER COLORADO RIVER BASIN

SCHEDULE OF EVENTS

Action Item

Outline requirements of regulations.

Develop draft regulations.

Draft regulations distributed for in-house re-

view.

Comments due from all offices within the re-

gion.

Draft regulations sent to Denver, Upper Col-

orado Regional, and Washington Offices for

review.

Development of public involvement plan due.

Comments from Regional, projects, and

Washington offices.

Advance Notice of Intent to Propose Rule-

making published in Federal Register.

Comments from Denver and Upper Colorado

Regional offices.

Draft regulations provided to Lower Basin

States and Colorado River Indian tribes Co-

alition for review.

Comments due from States and Coalition

Draft regulations sent to Denver, Washing-

ton, regional divisions and offices, and proj-

ects for final review before submittal for

publication.

Completion of Determination of Effects. (See

note below).

Notice of Intent to Propose Rulemaking pub-

lished in Federal Register.

Comments due from in-house review.

Date

Completed

Completed

Completed

Completed

Completed

Completed

Completed

Completed

Completed

Completed

08/15/91

09/30/91

09/30/91

10/11/91

10/21/91

lla

Final draft regulations submitted for Federal

Register publication. 11/08/91

Publication of draft regulations in the Federal

Register. 12/13/91

Copy of Federal Register notice mailed to

Lower Basin States, Indian tribes, water

users, and interested parties. 12/23/91

Public hearings. 01/27/92-

02/07/92

Comments on proposed regulations due. 02/11/92.

Proposed final regulations and responses to

public comments to Washington for review. 05/01/92

Comments due from Washington. 06/08/92

Final regulations submitted for publication. 07/13/92

Publication of final regulations in Federal

Register. 09/01/92

Regulations become effective. 10/01/92

Note:

If the Determination of Effects results in a decision that

the proposed rule is “major,” or has a significant economic

impact on a substantial number of small entities, Recla-

mation will be required to submit the proposed regulations

to the Office of Management and Budget (OMB) for re-

view. OMB will likely take the full 120 days they are

allowed for review and the remainder of the schedule will

have to slip to permit OMB the review time it needs.

We anticipate that a Categorical Exclusion will provide

the appropriate level of compliance with the National En-

vironmental Policy Act for implementation of the regula-

tions; additional slippage of the schedule could occur if

more extensive environmental compliance is required.

4.

INDEX TO DRAFT REGULATIONS

—

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Draft Copy

05/20/91

PART 415—REGULATIONS FOR ADMINISTERING

ENTITLEMENTS TO COLORADO RIVER WATER

IN THE LOWER COLORADO RIVER BASIN

Subpart A—General Provisions

Sec.

415.1 Purpose.

415.2 Applicability.

415.3 Authority.

415.4 __ Definitions.

Subpart B—Regulations to Establish and Regulate En-

titlements to Colorado River Water in the Lower Col-

orado River Basin

415.5 Determination of composition of Colorado River

water.

415.6 Beneficial use of entitlements.

415.7 Written contract or agreement requirements.

415.8 Procedures for obtaining contracts for use of Col-

orado River water in the Lower Basin States and

for transferring entitlements.

415.9 Exchange or temporary sale of water.

415.10 Reductions in entitlement due to nonuse.

Subpart C—General Management Regulations

415.11 Delivery of unused apportionment and surplus

water.

415.12 Water delivery and measurement.

415.13 Water operations and accounting.

13a

415.14 Water quality.

415.15 Wheeling non-system water.

415.16 Changes in service areas.

415.17 Water conservation.

415.18 Environmental compliance.

415.19 Administrative and other fees.

415.20 Penalties.

415.21 Records and reports.

415.22 Procedures for final determinations of nonuse,

nonbeneficial use, non-reporting of use, and un-

authorized use of Colorado River water and

appeals therefrom.

Subpart A—General Provisions

§ 415.1 Purpose.

The Boulder Canyon Project Act and the 1964 Supreme

Court Decree in Arizona v. California provide the Sec-

retary of the Interior (Secretary) with the authority and

responsibility to manage the mainstream of the Colorado

River and to administer entitlements to the use of water

therefrom within the Lower Colorado River Basin. These

regulations establish criteria, consistent with applicable

Federal law, which the Secretary will follow in adminis-

tering entitlements to, and water users will comply with

in utilizing, water from the mainstream of the Colorado

River water within the Lower Colorado River Basin. These

regulations will apply to the administration of all entitle-

ments to Colorado River water, regardless of how such

entitlements were or are obtained. Except for Indian hold-

ers of Federal Establishments’ Present Perfected Rights

(herein defined), entitlements to Colorado River water are

available to the water users only under contract with the

Secretary.

5.

DRAFT REGULATIONS§ 6

(BENEFICIAL USE OF ENTITLEMENTS)

l4a

§ 415.6 Beneficial Use of Entitlements.

(a) Purpose. The regulations in this section are intended

to address beneficial use and nonuse of entitlemerits to

Colorado River water in the Lower Colorado River Basin.

(b) Beneficial use. The diversion and consumptive use of

Colorado River water, except by Federal establishments,

must be for beneficial uses only.

(c) Nonuse of entitlements. Nonuse, nonbeneficial use,

nonreporting of use, and unauthorized use are hereinafter

referred to singly or collectively as nonuse.

(1) The Regional Director will consult with the ap-

propriate authorities within the States of California, Ari-

zona, or Nevada in determining whether or not a user of

Colorado River water is applying that water to beneficial

use within that respective State and pursuant to that

State’s laws. If a State authority, in accordance with es-

tablished State law procedures, determines that a user of

Colorado River water (other than Federal Establishments’

PPR user) has not been applying water to a beneficial use,

that determination may be respected by the Regional Di-

rector for enforcement purposes.

(2) The Regional Director, independent of State

authorities, may also make beneficial use determinations

for all Colorado River water users when he deems it ap-

propriate. In determining whether a use is beneficial or

nonbeneficial, the Regional Director generally will be

guided by the laws of the State where the use occurs. The

Regional Director may recognize beneficial uses not rec-

ognized under State law.

(3) Upon preliminary determination by the Regional

Director or (except for a Federal establishment) the ap-

propriate State authority that nonuse has occurred, a Col-

orado River water user may be subject to a reduction or

elimination of entitlement as provided in § 415.10.

dienes

6.

DRAFT REGULATION § 10

(REDUCTION IN ENTITLEMENTS DUE TO NONUSE)

15a

§ 415.10 Reductions in entitlement due to nonuse.

(a) Nonuse evaluation factors. In making a determination

of nonuse, the Regional Director, in consultation with ap-

propriate State agencies, will consider relevant facts, cir-

cumstances, and conditions that may be unique to each

State, consistent with the following guidelines:

(1) The Regional Director shall consider the unique

aspects of domestic and agricultural uses of water and

allow consideration of future growth in water demands for

domestic users;

(2) The Regional Director will ensure that entitle-

ments are not reduced as a result of nonuse brought about

by implementation of documented water conservation

measures;

(3) If the water user is able to show evidence to the

satisfaction of the Regional Director that there will be a

need for the entire entitlement within a reasonable time,

the Regional Director will consider additional build-up of

water use schedules as a basis for retailing entitlement to

sufficient Colorado River water for the user’s growth for

a period of years, based upon an average historical growth

rate for a like number of years, adjusted for reasonable

conservation. The Regional Director will consult with ap-

propriate State agencies in determining the number of

years allowed for a build-up schedule and the number of

historical years upon which to base such projections. The

Regional Director, in consultation with appropriate State

agencies, will review this projection every 5 years and

make a new determination of need;

(4) The greatest quantity of Colorado River water

entitlement put to reasonable beneficial use, as reported

16a

by the water user over the previous 5 years, adjusted by

the Regional Director if necessary for metering errors or

other reasons, shall be considered to be the base use of

the entitlement for that period;

(5) The Regional Director may consider any Federal

or State statutory authority for the allowance of nonuse;

(6) For municipal contract users, the Regional Di-

rector may take into account factors including, but not

limited to, current population, growth rate, market and

economic fluctuations, current water use per capita and

projected use per capita, current industrial use, docu-

mented and anticipated future needs, other uses of water,

the amount and sources of other water, and any other

factors deemed to be relevant to the municipality’s actual

need for the Colorado River water; and

(7) For agricultural contract users, the Regional Di-

rector may take into account factors including, but not

limited to, irrigable acres and acres irrigated, cropping

patterns, return flow rates, diversions, evapotranspiration

rates, irrigation efficiency, and type and condition of ir-

rigation systems utilized.

(b) Determination of nonuse and reduction of entitlement.

Upon a preliminary determination by the Regional Director

that a 5-year period of nonuse has occurred, the proce-

dures set forth in § 415.22 shall be followed. Upon a final

determination of nonuse by the Regional Director (which

determination shall take into account, if applicable, the

hearing examiner’s recommended findings of fact and con-

clusions of law), the Regional Director shall issue to the

user, aS appropriate, a cease and desist order or an order

reducing the user’s entitlement. Any such order issued

pursuant to § 415.22 will specify the amount of the re-

duction. If the user disagrees with the Regional Director’s

determination of nonuse or the amount of the reduction,

the user may appeal the decision to the Commissioner

pursuant to § 415.22(f). If the Regional Director’s deter-

17a

mination of nonuse is not rescinded as a result of a suc-

cessful appeal pursuant to § 415.22 the Regional Director

will provide a contract amendment to the user for exe-

cution which shall reflect the reduced entitlement. If the

user refuses to properly execute the contract amendment,

the Regional Director may administratively reduce the

user’s contract entitlement and the user thereafter will be

entitled to divert no more water than is allowed under the

reduced entitlement.

(c) Disposition of recaptured entitlement. An entitlement

to Colorado River water made available as a result of a

reduction because of a finding of nonuse will be made

available to other water user(s) within the appropriate

State, as determined by the Secretary.

(d) Five-year review of water utilization. The water use

of each water user may be reviewed by the Regional Di-

rector at 5-year intervals to verify that water is being

used in accordance with terms of the contract. Use not in

accordance with the terms of the contract or these reg-

ulations may result in an adjustment of the water user’s

Colorado River water entitlement.

TT ee ee on

7.

DRAFT REGULATION § 17

(WATER CONSERVATION)

18a

§ 415.17 Water conservation.

(a) Reasonable conservation required. The Reclamation

Reform Act of 1982, section 210(b), requires that

Each district that has entered into a repayment

contract or water service contract pursuant to Fed-

eral reclamation law or the Water Supply Act of

1958, as amended (48 U.S.C. 390b), shall develop

a water conservation plan which shall contain def-

inite goals, appropriate water conservation meas-

ures, and a time schedule for meeting the water

conservation objectives.

(b) Consultation with contractors. 43 CFR Part 417, en-

titled ‘“‘Procedural Methods for Implementing Colorado

River Water Conservation Measures with Lower Basin

Contractors and Others,” authorizes the Regional Director

to

conduct such consultations with each Contractor

as the Regional Director may deem appropriate

as to the making by the Regional Director of

annual recommendations relating to water con-

servation measures and operating practices in the

diversion, delivery, distribution and use of Col-

orado River water, and to the making by the

Regional Director of annual determinations of

each Contractor’s estimated water requirements

for the ensuing calendar year to the end that

deliveries of Colorado River water to each con-

tractor will not exceed those reasonably required

for beneficial use.

(c) Prevention of waste. As governed by the principle of

beneficial use, the works, systems, methods, and operating

procedures employed by water users in the diversion, dis-

tribution, delivery, and use of Colorado River water in the

Lower Basin shall be reasonably designed and maintained

19a

to prevent waste, unreasonable use, or unreasonable meth-

ods of diversion of such waters.

(d) Water conservation plans. Water conservation plans

shall be required of all water users for use of Colorado

River water. Each plan shall contain reasonable and eco-

nomically feasible goals, measures, and time schedules as

required by section 210(b) of the Reclamation Reform Act.

(1) Water users that irrigate less than 2,000 acres

and domestic users with diversion entitlements of less than

5,000 acre-feet annually may be exempted from the prep-

aration of a water conservation plan but shall be required

to submit annual reports as required herein. Agricultural

users annually will be required to submit a description of

their methods of irrigation and crop reports, and domestic

users will be required to provide information on measured

or estimated water system losses.

(2) Water users may submit or designate State-re-

quired water conservation plans for approval by the Re-

gional Director to satisfy the requirements of these

regulations.

(e) Updating water conservation plans. Water conser-

vation plans shall be updated by a water user at 5-year

intervals and submitted to the Regional Director for review

and avproval. Water users, including those who have sub-

mitte. or designated State-regulated water conservation

plans, shall update their water conservation plans by sub-

mitting addenda that include the following information: an

evaluation of accomplishments in water conservation dur-

ing the previous five years; a discussion of future water

needs; water conservation opportunities, limitations, and

goals; and time schedules for implementing new or mod-

ified water conservation measures.

(f) Notice of plan deficiency. If the Regional Director or

an appropriate State authority determines that a water

user is applying Colorado River water to a nonbeneficial

20a

or unreasonable use, or is making an unreasonable diver-

sion, the Regional Director may direct a water user in

writing to modify the water conservation plan to address

specific goals, measures, and time schedules for imple-

menting actions to reduce such nonbeneficial or unreason-

able use or unreasonable diversion within a reasonable time

frame. Upon such determination, the Regional Director

shall follow the procedures set forth in 43 CFR Part 417.

Such determination is separate from the determination of

nonuse under § 415.10(b). The Regional Director may also

direct the modification of water conservation plans to meet

the requirements of the appropriate State authority.

(g) Reduction in diversion request. If a water user fails

to take actions required to correct the nonbeneficial or

unreasonable use of Colorado River water within the des-

ignated time period, the Regional Director may reduce the

water user’s diversion request, in accordance with the pro-

cedures set forth in 43 CFR Part 417, in an amount equal

to the amount of water that the Regional Director deter-

mines is nonbeneficially or unreasonably used. Any such

reduction shall continue to be made until the water user

has eliminated the nonbeneficial or unreasonable use. This

reduction in diversions is separate from the reduction in

entitlement pursuant to § 415.10.

8.

DRAFT REGULATION § 20

(PENALTIES)

2la

§ 415.20 Penalties.

(a) Reduction of entitlement. Entitlements may be re-

duced by the amount that the Regional Director or the

appropriate State authority, with the concurrence of the

Regional Director, determines to be nonuse in accordance

with the nonuse evaluation factors set forth in § 415.10(a).

(b) Enforcement costs for preventing nonuse. If a user

refuses to reduce its diversion of water when so directed

by the Regional Director in accordance with the provisions

of § 415.10, that user may be subject to paying all rea-

sonable costs, as determined by the Regional Director,

incurred by the United States after the issuance of said

order to enforce the reduction in the user’s entitlement.

(c) Enforcement costs for preventing use by an unau-

thorized user. When a user is determined to be an un-

authorized user, all reasonable costs incurred thereafter by

the United States associated with stopping the unauthor-

ized use and preventing such unauthorized use from reoc-

curring in the future, as determined by the Regional

Director, shall be assessed to the unauthorized user.

(d) Late payment. Bills not paid in full by a water user

by the due date shall be subject to interest, penalties, and

administrative costs on delinquent payments pursuant to

section 11 of the Debt Collection Act of 1982 (Public Law

97-365). The interest rate shall be the greater of (1) the

rate prescribed quarterly in the Federal Register by the

Department of the Treasury for application to overdue

payments, or (2) the interest rate of 0.5 percent per month

prescribed by section 6 of the Reclamation Project Act of

1939 (Public Law 76-260).

(e) Adjustment for overruns. If a user consistently over-

runs its entitlement and does not make a good faith effort

to reduce diversions to compensate for said overruns, as

determined by the Regional Director, Reclamation may,

after providing written notification to the user, review and

22a

modify the user’s weekly orders until the user’s diversions

have been sufficiently reduced to adjust for the accumu-

lated overruns.