Adjustments to 1988 Operating Criteria and Procedures (OCAP) for the Newlands Irrigation Project in Nevada

SUMMARY: This rule adjusts the 1988 Operating Criteria and Procedures

(OCAP) for the Newlands Irrigation Project (Project). Adjustments are

made to the Project efficiency requirements, maximum allowable

diversion calculations, and Lahontan Reservoir storage targets in the

1988 OCAP to reflect current irrigated acreage, court decrees which

have lowered the water duty applicable to certain Project lands, and

other factors affecting water demand. To better manage diversions from

the Truckee River to the Project, the rule provides flexibility to

adjust the water supply in response to Project demand, flexibility in

using snowpack and runoff forecasts, and extends the time frame for

storing water in Truckee River reservoirs in lieu of diversions to the

Project from the Truckee River.

DATES: Effective December 16, 1997.

FOR FURTHER INFORMATION CONTACT: Dave Overvold, Acting Area Manager,

Lahontan Area Office, Bureau of Reclamation, P.O. Box 640, Carson City,

NV 89702, telephone (702) 882-3436; or Jeffrey Zippin, Team Leader,

Truckee-Carson Coordination Office, 5665 Morgan Mill Road, Carson City,

NV 89701, telephone (702) 887-0640. Copies of Adjusted OCAP regulations

may be obtained from either office.

SUPPLEMENTARY INFORMATION:

Background

On April 15, 1988, the Secretary of the Interior (Secretary)

implemented new Operating Criteria and Procedures (OCAP) governing

management of water diverted to and used within the Newlands Project.

These 1988 OCAP were approved by the U.S. District Court for the

District of Nevada, subject to a hearing on objections raised by

various parties. In 1990, Congress directed in the Truckee-Carson-

Pyramid Lake Water Rights Settlement Act (Title II of Pub. L. 101-618,

Section 209 (j) (104 Stat. 3294) that the 1988 OCAP remain in effect at

least until December 31, 1997, unless changed by the Secretary in his

sole discretion. Prior to the proposed rule, the 1988 OCAP had not been

published in the Federal Register.

These 1988 OCAP were designed to increase the reliance of the

Project on water from the Carson River, minimize the use of water from

the Truckee River as a supplemental supply, increase efficiency of

water use in the Project, and establish a regulatory scheme to manage

deliveries to Project water users including incentives for efficiency

and penalties for inefficiency.

An environmental impact statement (EIS) was prepared for the 1988

OCAP. That EIS served as the basis for reviewing the environmental

effects of these adjustments. The Department of the Interior (DOI) has

prepared an environmental assessment on the adjustments which tiers off

of the analysis in that EIS. Copies of the environmental assessment may

be obtained from the Truckee-Carson Coordination Office.

The Department is making a number of revisions to the 1988 OCAP to

adjust for changes in use of water rights, to increase flexibility, and

to clarify the language of the OCAP based on experience gained in

administering the 1988 OCAP through nine irrigation seasons. These

revisions are within the basic framework of the 1988 OCAP and its

environmental documentation and are being published for codification.

The need for additional changes to the 1988 OCAP beyond those in

this rule may be appropriate as well, but consideration of such changes

is expected to require further examination including the preparation of

an EIS.

Description of the 1988 OCAP

The 1988 OCAP provisions were preceded by a preamble which is

equally applicable to the Adjusted OCAP. The 1988 OCAP preamble is

reproduced with minor grammatical editing. The following 1988 OCAP

Preamble is taken from the 1988 OCAP:

1988 OCAP Preamble

The development of Operating Criteria and Procedures for the

Newlands Project in western Nevada was initiated in the late 1960's

and has proven to be a divisive, contentious issue for the people in

Nevada who rely on the waters of the Carson and Truckee Rivers.

Competition for the water in the Project's desert environment is

intense and growing. The conflicts among uses are clearly apparent

in the effects forecast on various areas where the DOI has program

responsibilities. The issue is complicated further by the

requirements of the Endangered Species Act and the listing of the

Cui-ui, a fish inhabiting the lower Truckee River and Pyramid Lake.

In order to proceed effectively and fairly, the DOI had to have

guiding principles for the OCAP. These are to:

--Provide water deliveries sufficient to meet the water right

entitlements of Project water users;

--Meet the requirements of the Endangered Species Act as they

specifically relate to the Truckee River/Pyramid Lake Cui-ui;

--Fulfill Federal trust responsibilities to the Pyramid Lake Paiute

Indian Tribe and the Fallon Paiute-Shoshone Tribes;

--Conserve wetland and wildlife values in both the Truckee and

Carson River basins;

--Give cognizance to the State laws affecting water rights and uses;

--Provide for stable economies and improve quality of life in the

region to the extent it is influenced by the DOI-managed resources

and facilities;

--Allow local control and initiative to the maximum extent possible;

and

--Provide stability and predictability through straightforward

operation based on actual versus forecast conditions.

The DOI believes that the proposed OCAP best satisfy these

principles within the limits of the Department's legal authority.

Each of the competing uses for the water is critical in its own

right. They are all essentially separable for decision making

purposes even though they clearly impact upon each other since the

available supply is far less than the demand.

The OCAP deal with the operation and use of Federal facilities

related to the Newlands Project. Therefore, their primary

responsibility is supplying the water rights to the Project water

users. To the extent this can be done effectively and efficiently,

then the remaining water supply is available for other competing

uses. The secondary impacts of the OCAP must, however, act to

support or encourage results which benefit the other competing uses.

The basic structure of the OCAP relies on both rules and

incentives which we believe will ensure reasonable, efficient water

management through reliance on local control and initiatives. The

direct consequences of the OCAP will be delivery of full water

entitlements within the Newlands Project, protection of endangered

species, fulfillment of trust responsibilities, and encouragement

for the protection of other environmental and quality of life

values.

Adjusted OCAP Proposed Changes

The Notice of Proposed Rulemaking for the Adjusted OCAP, published

in the Federal Register, 61 FR 64832, December 9, 1996, proposed a

number of changes to the 1988 OCAP based, in part, on a comparison of

the assumptions in the 1988 OCAP about the size of the Project and

patterns of water use with Project size in 1995 and new patterns of

water use. Specifically, the changes are:

Acreage: The anticipated increase in acreage has not

materialized; actual irrigated acreage in 1995 was 59,075 acres. This

amount reflects efforts of the Bureau of Reclamation (BOR) to limit

irrigation to water-righted lands and that, on average, irrigators have

not

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increased the acreage of lands in production. In the Notice of Proposed

Rulemaking for Adjusted OCAP, the 1995 preliminary estimate of

irrigated acreage for that year was shown in the text as 59,023.

However, modeling was based on 59,075 irrigated acres. In this final

rule, both the text, tables, and modeling consistently use 59,075

irrigated acres for 1995. When this rule becomes effective, the

provisions of section 418.22 will be used to adjust Lahontan Reservoir

storage targets to reflect the current water demand.

Average Water Duty: The average water duty for the project

has been reduced as a result of the so-called ``bench/bottom''

litigation (1995 Order of Judge McKibben, in U.S. v. Alpine, United

States District Court for the District of Nevada No. D-185). This

bench/bottom court ruling approved a change in the designation of some

Project lands from bench lands to bottom lands. Bench lands have a

maximum water duty of 4.5 acre-feet/acre; bottom lands have a maximum

water duty of 3.5 acre-feet/acre. (The Project includes pasture lands

with a duty of 1.5 acre-feet/acre.) The bench/bottom decision

reclassified approximately 9,000 acres of irrigated lands in the

project, reducing Project water entitlements by approximately 9,000

acre-feet. The change in demand is expected to be approximately 5,000

acre-feet of water when measured at the farm headgates. This is based

on historic use of about 90 percent of the headgate entitlement at 4.5

acre-feet/acre versus projected use of 100 percent of the 3.5 acre-

feet/acre entitlement.

Average Use of Entitlement: Actual water use as a

percentage of entitlement is usually less than 100 percent,

historically about 90 percent. The reduced percentage of entitlement

use results from on-farm practices and efficiencies, fallowing of

lands, and varying weather conditions. The current projected percent

use of entitlement is 93.4 percent. This is based on irrigation use of

91.8 percent and 95 percent for Carson and Truckee Divisions,

respectively, and 100 percent water use for pasture lands and wetlands.

Several factors will affect use of entitlement in the future:

--Irrigators whose lands were reclassified from bench lands with a

water duty of 4.5 acre-feet per acre to bottom lands with a 3.5 acre-

feet per acre duty may use more than 90 percent of their entitlement.

--The Fallon Paiute-Shoshone Tribes reservation is within the Project

and the Tribes have a cap on the water they receive. The Tribes are

expected to use their full water entitlement under the cap every

irrigation season.

--The Naval Air Station Fallon, as part of an agreement with the U.S.

Fish and Wildlife Service (FWS), will use less of its irrigation water

and is also developing less water intensive cropping strategies,

decreasing percent use of entitlement.

--The FWS and the State of Nevada are acquiring water rights within the

Newlands Project for restoration of wetlands at Stillwater National

Wildlife Refuge. The FWS has been transferring the consumptive use

portion, 2.99 acre-feet per acre, of the water rights they acquire.

This changes their effective entitlement to 2.99 acre-feet per acre of

which they are expected to take 100 percent, thus increasing percent

use of entitlement.

These and other changes in water use will cause the percent use of

entitlement to vary from year to year. The percent use will be

determined based on actual experience and will be used in calculating

the expected irrigation diversion for each irrigation season.

Efficiency: Within the same size project, more irrigated

acreage results in greater efficiency; with less irrigated acreage

lower efficiencies are expected. Project irrigated acreage never

reached the level anticipated in the 1988 OCAP but the associated

target efficiencies have remained in effect. As water rights are

acquired for Stillwater Wildlife Refuge (Pub. L. 101-618, section 206),

the effect on Project efficiencies may vary at first, but as more water

is acquired and moves to the Refuge, efficiencies should improve

stemming from the concentration of deliveries through the system.

This rule addresses only those adjustments to the 1988 OCAP in the

following areas:

1. Target Efficiency Adjustments (Secs. 418.12 (c)(3), 418.13 (a),

and Newlands Project Water Budget table): The 1988 OCAP envisioned and

allowed for increasing irrigated acreage, assuming the Project would

grow to over 64,850 irrigated acres by 1992 compared to a base of

approximately 60,900 acres being irrigated in 1987. The annual

calculations of the Maximum Allowable Diversion (MAD) to the Project

and efficiency requirements currently in use are based on a Project

consisting of 64,850 or more irrigated acres and a commensurate target

efficiency of 68.4 percent. However, the acreage increase has not

materialized and the 1995 irrigated acreage was approximately 59,075

acres. The Project conveyance efficiency that can be achieved, which is

the relationship between the total annual diversion to the Project and

total delivery to farm headgates, is directly related to irrigated

acreage; efficiency generally decreases as the irrigated acreage in the

Project decreases. The 1988 OCAP does not accurately reflect the

current acreage, and as a consequence, the higher efficiency

requirement remains in effect. This may decrease the water available to

the Project as calculated in the MAD and increases the likelihood of

penalties for inefficiency.

In response to less irrigated acreage and varying water demand, the

DOI will calculate the annual Project water budget for each irrigation

season in accordance with the elements in the Newlands Project Water

Budget table of the Adjusted OCAP. Each year the MAD will be based on

the projected irrigated acreage for that year and applicable water

duties. The other elements in Newlands Project Water Budget, including

appropriate Project efficiency at 100 percent use, would be calculated

to determine the MAD and Project efficiencies for each year. Only the

first 10 lines of the water budget would be calculated before the

irrigation season to determine the MAD, then the remaining lines would

be calculated after the irrigation season to determine target

efficiency. Through this approach, the Project water budget can

accommodate anticipated changes in Project characteristics.

Using the 1995 Actual Acres column from the Newlands Project Water

Budget, Maximum Headgate Entitlement (line 2) is the product of

Irrigated Acres (line 1) and the average water duty (calculated

annually). Variable distribution system losses of Canals/Laterals

Evaporation (line 3), Canals/Laterals Seepage (line 5), and Operational

Losses (line 7) are extrapolated to determine the Total Losses (line 8)

for a given Project size. The combined Maximum Headgate Entitlement

(line 2) and the Total Losses (line 8) determines the MAD (line 9), and

the relationship of Maximum Headgate Entitlement (line 2) to Total

Losses (line 8) estimates Project Efficiencies at 100 percent water use

(line 10). Actual use of entitlement, based on historic patterns, is

less than 100 percent (not all irrigators take all of their entitlement

each year), so the Maximum Headgate Entitlement is adjusted by the

projected percent use of entitlement (calculated annually) to yield

Expected Headgate Entitlement Unused (line 11) and the Diversion

Reduction for Unused Water (line 12). The Diversion Reduction for

Unused Water (line 12) is subtracted from the MAD (line 9) to determine

Expected

[[Page 66444]]

Irrigation Diversions (line 13). Finally, the adjusted Project demand

(calculated from line 2 minus line 11) is divided by the Expected

Irrigation Diversions (line 13) to determine the Expected Efficiency

(line 14).

The effect of this is to have the Adjusted OCAP more accurately

reflect the Project water demand. Reducing the annual Project

efficiency target will recognize the limitation of the present water

distribution system facilities and assist the Project in achieving

efficiency requirements. No changes are proposed for the 1988 OCAP

relative to how the MAD is calculated and administered, determination

of eligible land, reporting, or calculation of credits or debits.

2. Adjustments to Lahontan Reservoir Storage Targets (Secs. 418.20,

418.21, and 418.22, and tables of Monthly Values for Lahontan Storage

Computations, End of Month Storage Targets for July Through December,

and Adjustments to Lahontan Reservoir Storage Targets): The 1988 OCAP

prescribes when water may be diverted from the Truckee River to

supplement Carson River inflow to Lahontan Reservoir to serve the

Carson Division of the Project. (The Truckee Division of the Project is

supplied entirely by water from the Truckee River.) The Truckee River

diversion to the Carson Division is governed by end-of-month storage

target levels in Lahontan Reservoir. Water is diverted from the Truckee

to the Reservoir only if it is forecast that the storage target will

not be met by Carson River inflow by the end of the month. In years of

low flow on the Carson River, a greater percentage of the Carson

Division Project water supply is diverted from the Truckee River. In

wet years, the Carson Division supply may come entirely from the Carson

River. Thus, storage targets are used to help maintain a steady water

supply despite the natural climatic variability and differences in

annual runoff between the two river basins.

The formula used to determine how much water may be diverted to

Lahontan Reservoir from the Truckee River in January through June

relies, in part, on the runoff forecast for the Carson River. The

imprecision inherent in such forecasting can lead to variable

consequences. Sometimes more Truckee River water is diverted than is

needed to serve Project water users. This is particularly problematic

when the Carson River fills Lahontan Reservoir to the point that water

spills over Lahontan Dam or so that a precautionary spill (release) of

water must be made to avoid later flooding. In either situation,

spilled water that cannot be transported to water-righted lands or

Lahontan Valley wetlands flows into Carson Sink in the desert. This

situation occurred most recently in 1995, 1996, and 1997 with the

consequence that Truckee River water that could have flowed into

Pyramid Lake contributed to water that was spilled.

Because of their imprecision, forecasts for Carson River runoff do

not always reflect actual conditions and the water may not materialize.

If not enough water was brought over from the Truckee River earlier in

the water year, or Truckee River flow is insufficient to make up for

the shortfall from the Carson River, then the water supply may be

inadequate to meet the annual irrigation demand. This situation

occurred in 1994 when the Carson River was forecast to have a 100

percent water year but only produced a 50 percent water supply.

Two of the objectives of OCAP are to minimize spills and moderate

shortages. It is important to note that for the 95 years of records,

the climatic/hydrologic variability of both rivers is so great that

even if there were no limits on the diversion of Truckee River water,

in some years shortages would result. Conversely, even if no Truckee

River water were diverted, in some years Lahontan Reservoir would spill

just from Carson River inflow.

The 1988 OCAP has a June end-of-month storage target of 215,000

acre-feet in Lahontan Reservoir. The 215,000 acre-feet would serve at

least 4,000 to 5,000 more acres of water-righted and irrigated land

than has been irrigated in actual practice. The reclassification of

some bench lands to bottom lands further reduces water demand in the

Carson Division. The difference in headgate demand between what the

1988 OCAP projected and current Carson Division demand is approximately

21,000 acre-feet. The current storage targets permit unnecessary

diversions from the Truckee River to the Project. The proposed Adjusted

OCAP storage targets were based on the lower Carson Division demand and

reducing water loss to seepage, evaporation, and spill. Accordingly,

the proposed end-of-June storage target was adjusted to 174,000 acre-

feet, and the July through December targets were lowered as shown in

Table A. However, in this final rule, the end-of-June storage target is

190,000 acre-feet, as shown in the table Monthly Values for Lahontan

Storage Calculations (section 418.20 of the rule), while the January-

May targets are retained, subject to the adjustment procedures

described below. July and August end-of-month storage targets are also

increased to help maintain recreation levels in Lahontan Reservoir.

This is discussed in the Response to Comments, II.7., in this preamble.

A comparison of the 1988 OCAP, the proposed Adjusted OCAP, and the

final Adjusted OCAP storage targets for Lahontan Reservoir are shown in

Table A of this preamble. In addition, this final Adjusted OCAP, in

response to comments, adopts a flexible storage target regime that can

respond to future changes in Project water demand. This is discussed in

the Response to Comments, II.1, in this preamble and set out in section

418.22 of the rule. The new storage targets will be used to calculate

diversions from the Truckee River in accordance with section 418.20 et

seq. of the proposed rule.

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The storage targets were developed using the Truckee River

settlement negotiations water balance model. The model was used to

examine how different storage targets affected spills, inflow to

Pyramid Lake, and other parameters. Key assumptions used in modeling

were reduced Project water demand from the 1988 OCAP, lower efficiency

targets, current Truckee River operations, and Project shortages

consistent with the 1988 OCAP. The model uses the 95-year (1901-1995)

historic hydrologic record for the Truckee and Carson Rivers.

For the proposed Adjusted OCAP, a series of modeled storage targets

was evaluated based on the degree to which a set of targets reduced

spills, increased inflow to Pyramid Lake, increased the estimated

number of spawning years for cui-ui, increased the estimated number of

cui-ui, reduced Lahontan Reservoir and Truckee Canal seepage and

evaporation losses, and held frequency and magnitude of Project

shortages consistent with the 1988 OCAP. These goals are consistent

with the Secretary of the Interior's responsibilities as the District

Court ruled in Pyramid Lake Paiute Tribe of Indians v. Rogers C.B.

Morton (Tribe v. Morton), 354 F. Supp. 252 (D.D.C. 1973).

Though not a specific feature of the Adjusted 1988 OCAP, the

modeling used in making decisions on this proposed rule took cognizance

of the 4,000 acre-foot minimum pool that the Truckee-Carson Irrigation

District (TCID), the Project operator, voluntarily has maintained in

Lahontan Reservoir to protect fish resources there. Though this action

to maintain a minimum pool is purely voluntary on the part of TCID and

Newlands Project water right holders, it provides environmental

benefits, was assumed to be continued into the future, and was credited

in the modeling used to establish new Lahontan storage targets; that is

to say, the targets would have been somewhat lower to achieve the same

release shortage percentage and Truckee River inflow volume to Lahontan

Reservoir assuming no anticipation of the 4,000 acre-foot minimum pool.

Table A presents the model results examined in developing the

Adjusted OCAP, and the values are averages for the 95-year period of

record. Modeled results for the 1988 OCAP with current hydrology are

compared to the Current Conditions, the proposed Adjusted OCAP, and the

final Adjusted OCAP. In a number of categories, the modeled results

show improvements under the final Adjusted OCAP storage targets as

compared with the 1988 OCAP. For example, there is less Truckee Canal

loss (line 3), less Lahontan Reservoir loss (line 12), and less

Lahontan Reservoir spill (line 14). Compared to the Current Conditions,

the final Adjusted OCAP is an improvement in all areas except for

Project water supply (line 18) and the additional shortage year (line

19). The modeled reduction of water loss and spill from the Project

increases inflow to Pyramid Lake under the final Adjusted OCAP (line

23). Compared to the Current Conditions, approximately 19,800 acre-feet

of water is modeled to be saved from the Truckee River under the Final

Adjusted OCAP from reduced Truckee Canal loss, reduced Lahontan

Reservoir loss, and reduced spills. Of this 19,800 acre-feet of Truckee

River water saved, approximately 2,550 acre-feet of the water saved

reduces Project water supply compared to Current Conditions.

3. Truckee River Storage in Lieu of Diversions (Sec. 418.20 (f)):

Project diversions from the Truckee River may be fine-tuned by

retaining water in upper Truckee River reservoirs that would otherwise

have been diverted to Lahontan Reservoir to meet storage targets.

Depending upon how much Carson River runoff reaches Lahontan Reservoir

and whether storage targets are met by the Carson River inflow, the

water retained in storage may be released later in that year and

diverted to Lahontan Reservoir for delivery to the Carson Division, or

retained for Pyramid Lake if the water is not needed for Carson

Division irrigation.

Under the 1988 OCAP, water was allowed to be stored upstream on the

Truckee River in lieu of diversion only from April to June. In 1995,

this limitation contributed to approximately 80,000 acre-feet of water

being diverted from the Truckee River to Lahontan Reservoir before

March 31, then spilling because of high Carson River runoff. None of

the Truckee River water was needed because the Carson River more than

filled Lahontan Reservoir and precautionary releases were made to avoid

spilling over the dam. While the 80,000 acre-foot-diversion from the

Truckee was controversial, it resulted from managing the diversion in

strict adherence with the 1988 OCAP targets. In the 1996 and 1997 water

years, respectively, 6,000 and 22,000 acre-feet were diverted from the

Truckee River in late fall and winter, and again spilled. It is

possible that a similar occurrence may result in the 1998 water year

from continued application of the 1988 OCAP storage targets. The

proposed Adjusted OCAP provided more flexibility to reduce such

unnecessary diversions.

Consistent with managing Project diversions from the Truckee River,

the proposed Adjusted OCAP expanded the opportunity to credit store

water for the Project in reservoirs on the upper Truckee River by

allowing storage as early as January of each year. In this final

Adjusted OCAP, Truckee River storage would be allowed as early as

November of the previous year. The water would be credited based on

water actually retained in Truckee River reservoirs or, if water was

not being released for Project diversion, credited as Newlands Project

water in Stampede Reservoir adverse to other water (fish water) stored

in Stampede Reservoir. In the latter situation, concurrence by the FWS

will be required. For example, a reduction of diversions in January

through March of 1995, would have required FWS approval to create

Newlands Project credit water out of Stampede Reservoir water because

water was not being released for Project diversion. Newlands Project

credit water could be released for diversion to Lahontan Reservoir, if

needed, as early as July 1 through the end of the irrigation season,

but not thereafter. The water would only be used for the Carson

Division. Water in storage could be exchanged to other reservoirs but

it will not carry over to the next year for use in the Project. If it

is not used in the year in which it is stored, it will not be available

thereafter to the project. To protect the water users, the water held

in storage on the Truckee River would not be reduced by evaporation and

would be gaged at the US Geological Survey gage on the Truckee Canal

near Wadsworth, Nevada, to ensure that diversion to the Project matches

the diversion foregone earlier in the season. Water could spill, but if

spilled, it would be subject to diversion to Lahontan when needed to

meet storage targets. Water stored but not needed for the Project would

be managed to benefit cui-ui and Lahontan cutthroat trout in Pyramid

Lake.

This change provides flexibility to reduce excessive diversions

from the Truckee River. The BOR is expected to use this proposed

provision only in years when Carson River runoff is forecast to be

above average and is intended to fine tune diversions and avoid over-

diversions from the Truckee River. Such storage in Stampede Reservoir

or other Truckee River Reservoirs is not intended to make up for

shortages in drier years.

There is little advantage to foregoing diversions in below average

runoff years if the likelihood is that all the credit stored water

would need to be diverted to the Project in any event. The changes in

Section 418.20 (f) of the rule include provisions for BOR to consult

with

[[Page 66447]]

TCID, the Federal Water Master, FWS, Bureau of Indian Affairs (BIA),

and the Pyramid Lake Paiute Tribe before any credit storing is

initiated.

4. Expanded Forecasting (section 418.20 (a)): In calculating the

January to June monthly diversions from the Truckee River, the 1988

OCAP uses the monthly forecast for April through July runoff published

by the Natural Resources Conservation Service (NRCS) (formerly the Soil

Conservation Service). Rather than continuing to rely on that forecast

alone, the proposed Adjusted OCAP provided flexibility to examine other

forecasts and allow the use of a deliberative process to determine how

to manage Truckee River diversions. This provision remains unchanged in

this final Adjusted OCAP. The intent of this change is to allow the BOR

to take advantage of other forecasts and the experience and knowledge

of the Federal Water Master, the TCID water master, and other parties.

The desired effect of this change is to improve precision in

forecasting and managing the Truckee River diversion to the Project to

avoid spills and shortages.

5. Additional Revisions: In addition to the changes identified in

1. through 4. above, a number of minor revisions have been made to the

1988 OCAP. Most changes are editorial and do not affect the meaning of

the text. Some changes provide opportunities for consultation with

interested and affected parties before BOR makes a decision.

A few changes add language to clarify or interpret the meaning of

the 1988 OCAP in light of experience administering the OCAP, passage of

time, or new statutory provisions. Changes to the text of the 1988 OCAP

occur at:

Section 418.2: Other Project purposes are added in accordance with

Pub. L. 101-618, 104 Stat. 3289, Sec. 209 (a) (1).

Section 418.13 (a) (3): Explains the use of efficiencies in

calculating the MAD.

Section 418.18 (b): Calculates terminal flow in the Truckee Canal

by averaging flows during the time when water is not being diverted to

Lahontan Reservoir.

Section 418.24: Water captured in Project facilities from a spill

or precautionary drawdown is used to make deliveries to eligible lands

but does not count as a Project diversion or as Lahontan Reservoir

storage.

Section 418.29: Deletes the reference to the February 14, 1984,

Contract for Operation and Maintenance between the United States and

the District.

Section 418.37 (d): Adds new text clarifying that a natural drought

greater than or equal to the debit will eliminate the debit.

Section 418.38 (b): Allows TCID to divert up to the MAD if needed

to meet headgate entitlements.

Rulemaking Process

The DOI announced in 1995 that it intended to revise the 1988 OCAP

through adjustments to that OCAP. In the summer of 1995 the TCCO held

four public workshops in Fernley, Nevada to invite affected and

interested parties to offer their thoughts on changes to the 1988 OCAP

affecting storage targets, conveyance efficiency, storage in lieu of

diversions, and the use of runoff forecast data.

The Notice of Proposed Rulemaking on the Adjusted OCAP was

published December 9, 1996, with the 60-day comment period scheduled to

close on February 7, 1997. As a result of being preoccupied with the

worst floods in decades on both the Carson and Truckee Rivers in

January 1997, the DOI received many requests for an extension of the

comment period. By notice in the Federal Register on February 18, 1997,

the comment period was extended an additional 60 days until April 8,

1997. The Notice extending the comment period also included frequently

asked questions and answers regarding the Adjusted OCAP, and made known

the availability of general and detailed modeling results related to

the rulemaking.

During the initial comment period, the TCCO conducted an

information briefing for the State of Nevada, TCID, Fallon Tribe, and

Pyramid Lake Tribe. Two public workshops to explain and answer

questions about the proposed rule were held in Fallon and Fernley,

Nevada. The TCCO received 47 written comments on the proposed rule.

Comments addressed the proposed rule and are responded to in this

preamble. Many comments addressed the draft environmental assessment

(EA), which had been made available for review, and have been responded

to with changes in the EA. Two commenters submitted pleadings in

litigation on the 1988 OCAP which were not addressed in this final rule

because they were already addressed in the United States' responsive

pleadings in that case.

Changes Made in This Final Rule

In response to comments and additional information, the DOI has

made several changes in this final Adjusted OCAP rule. The proposed

change in Lahontan Reservoir storage targets received more comments

than any other issue in the proposed rule. This final Adjusted OCAP

addresses two storage target issues raised in comments: future

increases or decreases in Project water demand, and effects of lower

storage targets on recreation. In this final rule, a system of demand

responsive storage targets is implemented to provide a stable water

supply to the Project over a range of water demands that may result

from changes in irrigated acres, use of entitlements, or other

circumstances. In addition, summer storage targets have been increased

to help maintain recreation levels at Lahontan Reservoir, without

substantial effect on Pyramid Lake inflow or threatened and endangered

fish recovery. This also provides a slight benefit to Project water

supply. These changes are described in sections II.1. and II.7. of the

Response to Comments in this preamble and sections 418.20, 418.21, and

418.22 of the rule.

The Adjusted OCAP proposal to extend the period for storage of

Truckee River water in lieu of diversions back to January each year has

been changed in the final rule by extending it back to include November

and December. November and December targets increase significantly to

take advantage of winter flows in the Truckee River when the water will

clearly be needed in the Project. Adding storage in lieu of diversions

in November and December will help avoid a repeat of the situation that

developed in late 1996 and early 1997 when all reservoir storage levels

were up yet diversions from the Truckee River to the Project continued

through the end of December, only to begin spilling as a precautionary

release from Lahontan Reservoir on January 1, 1997. The final rule also

allows Newlands credit water spilled from Truckee River reservoirs to

be diverted to Lahontan Reservoir subject to applicable storage

targets. These changes are described in sections II.5 of the Response

to Comments in this preamble and section 418.20(f) of the rule.

The proposed Adjusted OCAP lowered the Project conveyance

efficiency target based on increases in the percent use of entitlements

and decreases in the Project size. The intent was for the conveyance

efficiency target to be dynamic and continue to vary with the use of

entitlements and the Project size. However, Figure 1, the graph in

Appendix A at the end of the proposed rule, showed target efficiencies

varying only in proportion to percent use of entitlement. This has been

replaced in the rule at section 418.13(a)(4) and by the table Expected

Project Distribution System Efficiency that shows required efficiency

for a range of irrigated acreage and a range of percent use of

entitlement. The table also provides the

[[Page 66448]]

slope and y-intercept so that a new graph may be prepared. Appendix A

in this final rule has a table Calculation of Efficiency Equation which

shows how the Expected Project Distribution System Efficiency is

calculated using a range of percent use of entitlement from 100 percent

to 75 percent.

The proposed Adjusted OCAP made several corrective adjustments to

the 1988 OCAP to have the Adjusted OCAP reflect actual Project

operations. One of these affected how water released into Rock Dam

Ditch was counted. Rock Dam Ditch may receive water directly from

releases at Lahontan Reservoir, or may get water directly from the

Truckee Canal via a siphon pipe under the stilling basin below Lahontan

Dam. In the proposed Adjusted OCAP rule, diversions directly from the

Truckee Canal would have counted against the Truckee Division. As was

noted in comments, this is incorrect, as the water that reaches Rock

Dam Ditch would, in all cases, come from water in Lahontan Reservoir or

destined to arrive in Lahontan Reservoir. This change is noted at

section III.1 of the preamble and in the rule at section 418.23.

Modeling used to compare various OCAP scenarios and storage target

regimes has been updated since the proposed rule was published. The new

modeling retains the Project acreage and water use assumptions from the

proposed rule but is modeled over the 95-year period 1901-1995, it also

includes the additional hydrology for 1995, and does not include

storage in Lahontan Reservoir on the flash boards above 295,500 acre-

feet.

Based on technical comments from the BOR, which will administer

this rule, the language in section 418.13(a) has been revised to

clarify the timing and procedures for recalculating the Project water

budget, the MAD, and the required conveyance efficiency. At the start

of the irrigation season, a provisional water budget and MAD will be

recalculated. After the irrigation season when actual irrigated acres

and percent use of headgate entitlement is known, a final target

conveyance efficiency will be determined from the table Expected

Project Distribution System Efficiency.

This final rule has been revised to conform to numbering and plain

language requirements for publication of the Adjusted OCAP rule in the

Code of Federal Regulations. Some extraneous introductory text has been

removed or incorporated into the preamble. Throughout the text of the

rule, ``must'' or other appropriate wording replaces ``shall'' and

references to ``these OCAP'' has been replaced by ``this part.''

Additional text has been changed only to clarify the meaning. The new

format includes a section on definitions and has moved a few sections

forward as General Provisions of Adjusted OCAP. Also, the rule has been

divided into more sections, each dealing more discretely with each

subject. With these exceptions, the text of this rule appears in the

same order as in the Notice of Proposed Rulemaking and can be easily

compared.

Need for Immediate Effect

This adjusted OCAP rule is effective December 16, 1997, to allow

its provisions to address imminent diversions of water from the Truckee

River to Lahontan Reservoir. Under the Administrative Procedure Act,

sec. 553(d)(3), a rule may have immediate effect when the agency finds

that there is good cause for waiving the normal 30-day period between

publication of the rule and its effective date. This waiver of the

normal 30-day waiting period for this rule to become effective is

critical for the Secretary to meet all obligations in the Truckee River

basin. A 30-day delay in implementation will compromise the

effectiveness of the Adjusted OCAP by allowing unnecessary diversions

of more than 14,000 acre-feet of water from the Truckee River.

Delayed implementation of the rule would be contrary to the public

interest. The Adjusted OCAP more accurately limits Truckee River

diversions to only that amount of water that the water users in the

Project require. In the past three years, the 1988 OCAP storage targets

have allowed Truckee River diversions of about 80,000 acre-feet, 6,000

acre-feet, and 22,000 acre-feet of water that was not needed to satisfy

diversionary rights and which ultimately was spilled during required

precautionary drawdowns of Lahontan Reservoir increasing the danger of

flooding in the Carson River valley.

Immediate implementation will not harm those affected by the rule

because there will be sufficient water available to serve water rights

during the 1998 irrigation season. Lahontan Reservoir storage levels in

November resulted in diversions of nearly 10,400 acre-feet of Truckee

River water under the existing 1988 OCAP storage targets. Projections

for December 16-31, 1997, indicate that an additional 14,000 acre-feet

of water might need to be diverted from the Truckee River to meet 1988

OCAP storage targets. Under the Adjusted OCAP storage targets in this

rule, no water would have been diverted in November or would need to be

diverted in December. Moreover, the November and December diversions

are not needed to serve Project water rights. The 160,000 acre-feet

already in Lahontan Reservoir, less evaporation and seepage, along with

the water that would be available if needed from the Truckee River

based on current water storage in Truckee River reservoirs, indicates

that there will be sufficient water to meet Project requirements for

the 1998 irrigation season. Therefore, immediate implementation is

necessary to prevent the waste of at least 14,000 acre-feet of water

that will be diverted from the Truckee River in December if the

Adjusted OCAP is not in effect. If the rule were not in effect until

January 16, 1998, additional water would be diverted that will not be

needed.

In addition, immediate implementation will benefit Pyramid Lake by

maintaining needed Truckee River flows with no attendant harm to

Project water users, because the Adjusted OCAP does not affect decreed

water rights. Conversely, diversions at Derby Dam in December pursuant

to the existing 1988 OCAP storage targets would significantly decrease

Truckee River flows to the detriment of Lahontan Cutthroat Trout, which

is a threatened species under the Endangered Species Act.

A 30-day delay in implementation would result in an irretrievable

commitment of at least 14,000 acre-feet of water from the Truckee River

to Lahontan Reservoir. Immediate implementation of the Adjusted OCAP

will allow better management of the Project, and will avoid potential

threats to public health and safety due to the increased risk under the

1988 OCAP of flooding those downstream of Lahontan Reservoir.

The main reason for a 30-day waiting period prior to implementation

is to provide affected parties with an opportunity to adjust their

actions. The need for this is obviated by the fact that the Adjusted

OCAP are an outgrowth of the 1988 OCAP. They are designed to fine tune

the 1988 OCAP, not to replace them with an entirely new regulatory

scheme. The revisions fall within the basic framework of the 1988 OCAP,

a regulatory system that the affected parties have been operating under

for nine years. Further, the Adjusted OCAP have been in circulation for

many months, and all affected entities have had ample opportunity to

participate in workshops on the proposed rule and to comment.

The affected parties have participated in the development of the

Adjusted OCAP and are aware of the content of the rule as well as the

approximate time it would be implemented. In spring

[[Page 66449]]

1997, the DOI extended the period for comment on the proposed rule for

60 days to accomodate interested parties who had been preoccupied by

flooding during the original comment period. This 60-day delay should

not be allowed to compromise the rationale underlying the Adjusted

OCAP's development. The potential for harm to the public outweighs any

possible prejudice to the affected parties. Therefore, the Department

finds that there is good cause for the Adjusted OCAP to be effective on

December 16, 1997.

Response to Comments on Proposed Rule

The proposed rulemaking provided a 60-day public comment period

which was later extended another 60 days to end on April 8, 1997. The

Truckee-Carson Coordination Office (TCCO) received 46 letters from

commenters during the comment period. One additional commenter

submitted late comments that TCCO received on April 9, 1997, and

accepted for review, for a total of 47 comments. Fifteen comments were

from an irrigation district, twelve from interested parties, seven from

local governments, six from organizations or public interest groups,

three from Nevada State agencies, two from Tribes, one from a public

utility, and one from a Federal agency.

We reviewed and analyzed all comments, and in some instances

revised the final rule based on these comments. The following is a

discussion of the comments received and our response. First, we

addressed general comments and concerns. Second, we responded to

specific comments referred to by regulation section.

I. General Concerns

1. Why Propose These Changes? Some commenters asked what the

purpose and need was for making adjustments to the 1988 OCAP. One

commenter asked when the continued encroachment on water rights by

successive OCAP's will end. Other commenters said that the proposed

Adjusted OCAP rule does not meet the goals stated in the 1988 OCAP

regarding service of water entitlements, conservation of wetlands and

wildlife, Trust obligations to the Fallon Paiute-Shoshone Tribes

(FPST), stable economies, and stability of operations. Other commenters

argued that the diversion and subsequent spill of more than 100,000

acre-feet of Truckee River water in the past three seasons points to

the need to adjust the 1988 OCAP to avoid a recurrence of such

diversions and spills. Finally, one commenter suggested that instead of

having an OCAP, that a discussion process be used to determine the need

for fall or winter diversions from the Truckee River.

Response: As explained in the preamble to the proposed Adjusted

OCAP rule published in December 1996, the primary purpose of this rule

is to adjust the OCAP to reflect the fact that demand for water to meet

Newlands Project water rights is less than projected at the time the

1988 OCAP were adopted and the OCAP can be adjusted to better reflect

new water demand assumptions which will increase Newlands Project

reliance on the Carson River as the primary source of water for the

Carson Division. Other adjustments are made to provide flexibility in

operations to help conserve water based on experience gained in the

past nine years. The changes in this rule are designed to reduce

diversions from the Truckee River in such a way that approximately 87

percent of the reduction comes from reduced Truckee Canal loss, reduced

reservoir loss, and reduced spills. For the reasons explained above

under the heading, ``Adjusted OCAP Proposed Changes,'' demand for water

to serve water rights has been less than anticipated in the 1988

decision which means that more water is being diverted from the Truckee

River under the 1988 OCAP than is necessary to serve Newlands Project

water rights. This is inconsistent with the Secretary's trust

responsibility as spelled out in the Gesell decision in Tribe v. Morton

to ensure that only the water needed to serve Project water rights is

diverted from the Truckee River and away from Pyramid Lake. As such,

this is not an encroachment on Newlands Project water rights, but a

limited refinement of diversion criteria to assure that Project water

rights are met but with maximum reliance on the Carson River.

This final OCAP rule is consistent with the 1988 OCAP goals. Water

entitlements in the Newlands Project are served subject to such

regulations or requirements as the Secretary may impose. This final

rule is the Secretary's OCAP regulation for the Project, provides for

the full service of water rights so long as the water is available,

meets the OCAP goal of satisfying entitlements, and therefore, fulfills

the Alpine and Orr Ditch decrees. The Adjusted OCAP is not expected to

interfere with efforts to restore Lahontan Valley wetlands and wildlife

resources because the proposed Adjusted OCAP was considered in the

decision making process for the FWS Water Rights Acquisition Program

(WRAP) EIS and it is being considered as the FWS develops its

comprehensive management plan for Stillwater National Wildlife Refuge.

The DOI is negotiating an agreement with the FPST on a number of issues

including maintaining the Tribe's irrigation water supply. This

agreement with the FPST is expected to help ensure that the DOI will

meet its trust responsibilities to the Tribe under the Adjusted OCAP.

The Adjusted OCAP decreases slightly-- from 98.41 percent to 97.48

percent--the average water supply in the Carson Division of the Project

and would have an effect on farm production, profits, and income in

drought years (see response to I-12). However, the modeled average

water supply under Adjusted OCAP is similar to the modeled supply in

the 1988 OCAP EIS assumptions under current conditions (1988 OCAP in

Table A), therefore the economic stability of the Project is not

expected to change compared to 1988 OCAP projected conditions. Finally,

the Adjusted OCAP rule does not impose new operational requirements and

is, therefore, consistent with the goal of stability in operations.

This Adjusted OCAP addresses the comment regarding the need to

manage early season diversions of Truckee River water to Lahontan

Reservoir to avoid subsequent spills. We believe the proposed storage

target regime in the rule will minimize, but cannot eliminate, the

possibility of Truckee River diversions being spilled later. We

believe, further, that we cannot legally abandon OCAP in favor of a

discussion process as the basis for controlling Truckee River

diversions.

2. Why Change the OCAP Now? A number of commenters questioned why

the DOI is changing the OCAP at this time. They cite the December 31,

1997, expiration of the prohibition on litigation on the 1988 OCAP in

Section 209 of the Truckee-Carson-Pyramid Lake Water Rights Settlement

Act (Pub. L. 101-618), the absence of any court order for a new OCAP,

and question why the DOI was moving ``swiftly'' on Adjusted OCAP in

light of numerous concerns. Some commenters questioned the timing and

need for the Adjusted OCAP in light of the DOI's announced plans to

develop a revised, long-term OCAP. Other commenters asked to have the

Adjusted OCAP rule in effect by October 1, 1997, to avoid potentially

unnecessary diversions from the Truckee River.

Response: Section 209 of Pub. L. 101-618 allows the Secretary to

decide, in his sole discretion, that changes to the OCAP are necessary

to comply with his obligations. No court order is needed to

[[Page 66450]]

make these changes. The experience of initially seven and now nine

years implementing the 1988 OCAP indicates that a number of changes

could be made to save additional diversions of Truckee River water

within the framework of the 1988 OCAP. The timing of this rulemaking

relative to December 31, 1997, is coincidental since the rulemaking

started in 1995. The DOI announced its intent to develop an interim or

Adjusted OCAP in March 1995, held public planning workshops on Adjusted

OCAP in August 1995, published a proposed rule in December 1996, held

public workshops on the proposed rule in December 1996 and January

1997, and extended the comment period by 60 days in February 1997. We

believe this history reflects the ample opportunities for public input

and the deliberative pace of rulemaking to allow due consideration of

issues.

The DOI's intention to develop a revised OCAP was also announced in

March 1995. Unlike the Adjusted OCAP which makes some changes in the

1988 OCAP as an interim correction, the revised OCAP contemplates more

fundamental changes to OCAP, will take a number of years to develop,

and will be the subject of an EIS that also considers other related

water management issues. The fact that the DOI conducted EIS scoping

meetings for this EIS during the comment period on the Adjusted OCAP is

more a reflection on the lengthy EIS process than on the DOI's intent

to rush into the next OCAP before this rulemaking is concluded.

As to when the rule will go into effect, it had been the DOI's hope

to have the Adjusted OCAP in effect prior to when Truckee River

diversions might have begun under the current OCAP storage targets.

3. What is the legal authority for changing OCAP and for making

OCAP a regulation? A number of commenters questioned the DOI's

authority and the legal basis to make changes to the 1988 OCAP and to

do so via rulemaking. One commenter made the point that this rulemaking

will ``grandfather'' the 1988 OCAP which never was published in the

Federal Register, never underwent notice and comment rulemaking, and

which has not undergone judicial review. Another commenter asked if the

Secretary had the approval of the Pyramid Lake Paiute Tribe (PLPT) to

change OCAP.

Response: The Secretary of the Interior is authorized to promulgate

regulations for the operation of irrigation projects under the

Reclamation Act of 1902, as amended. Promulgation of the Adjusted OCAP

rules replaces the existing 1967 OCAP regulations and a number of court

approved OCAPs. Promulgation of Adjusted OCAP affords the public a

formal opportunity to participate and have their concerns considered in

the rulemaking process.

The Adjusted OCAP is based on the 1988 OCAP framework with changes

in efficiency requirements, storage targets, upstream storage, and

forecasting. It is correct that the 1988 OCAP was not published in the

Federal Register, was not included in the Code of Federal Regulations,

and has not gone completely through judicial review. However, Congress,

through Pub. L. 101-618, directed the 1988 OCAP to remain in effect

until changed by the Secretary, at his sole discretion, and to be

barred from judicial review until December 31, 1997. The public law

also declared valid all actions taken by the Secretary under any OCAP

prior to that law, including implementation of the 1988 OCAP, and not

subject to judicial review.

Newlands Project OCAP may be implemented through approval by the

Tribe versus Morton court, or with the approval of the PLPT. The DOI

believes it has received the approval of the PLPT through the Tribe's

comments on the proposed Adjusted OCAP rule.

4. Adjusted OCAP Violates Water Rights under the Alpine and Orr

Ditch Decrees: A number of commenters contend that the Adjusted OCAP

reduces the water supply to the Newlands Project, and that any

reduction in water supply affects water rights in violation of Nevada

water law. These commenters also view this as a violation of water

rights adjudicated under the Orr Ditch and Alpine decrees. Several

commenters cite the court's decision in Tribe v. Morton which said that

OCAPs should not alter the Orr Ditch or Alpine decrees.

Response: Under Nevada water law, water rights holders are entitled

to a certain water duty per acre which represents the maximum amount of

irrigation water that can be beneficially used on water righted lands.

This water duty is neither a minimum amount of the entitlement that

must be received, nor is it a guarantee that that amount of water will

always be available. As the Carson and Truckee Rivers' runoff varies

from year to year, so too does the water supply, resulting in full

years serving up to the water duty, and in drought years where the

available water supply serves less than the water duty.

As shown in Table A, line 19, under final Adjusted OCAP there is an

additional shortage year compared to the current condition. The

additional shortage year results from reduced carry over storage of

Truckee River water in Lahontan Reservoir. Under Judge Gesell's

decision in Tribe v. Morton, the Truckee River water left in Lahontan

Reservoir at the end of the irrigation season is water that was not

needed to serve water rights, and the Project is not entitled to this

water.

Nothing in the Adjusted OCAP changes anyone's water right or

affects the Orr Ditch or Alpine decrees. What OCAP does is determine

under what conditions Truckee River water may be diverted to Lahontan

Reservoir to supplement the water supply from the Carson River for

purposes of serving such rights that year. That combined supply in

Lahontan Reservoir is the water supply available to meet the water

demand in the Carson Division in a given year. Our modeling analysis of

the Adjusted OCAP, which considers the hydrologic record for the Carson

and Truckee Rivers from 1901 to 1995, indicates that in more than 9 out

of 10 years Lahontan Reservoir has enough water to fully satisfy the

Carson Division demand, with an average water supply of more than 97

percent of demand. This combined use of Carson and Truckee River

ensures a more secure and consistent water supply for the Carson

Division than most other Alpine decree water rights holders experience

on the Carson River.

5. The Adjusted OCAP Affects Property Rights: Commenters have

expressed concern that Adjusted OCAP may cause shortages that are a

taking of property rights. A State Agency believes that any action by

the Federal government that results in water rights holders not

receiving their legal entitlement of water is a taking of personal

property. Also, because the State Agency is a holder of water rights in

the Newlands Project, it says that Adjusted OCAP may devalue its water

right holdings when they receive less water than is available in the

system. Other commenters say this is stealing water or a taking without

just compensation.

Response: Newlands Project irrigators do indeed have a property

right in their water rights, as do other water rights holders in

Nevada. However, as pointed out in the response to issue number 4, the

Adjusted OCAP has no effect on water rights or on the Alpine and Orr

Ditch decrees. In addition, these water rights are not an entitlement

to a certain amount of water every year, but rather an entitlement to

receive up to a certain amount of water, when that water is available.

In drought years, water may not be available to serve all entitlements.

Thus, the water that reaches and is retained in Lahontan

[[Page 66451]]

Reservoir constitutes the available water for Newlands Project

irrigators in the Carson Division. Further, these water rights are

subject to applicable laws, rules, and judicial decrees. The supply of

water in Lahontan Reservoir, out of which Carson Division water rights

are served, is subject at least to the segmentation and priority

provisions of the Alpine decree for the Carson River, and to the

Floriston flow rate and priority provisions of the Orr Ditch decree for

the Truckee River. Under Pub. L. 101-618 and Tribe v. Morton, OCAP may

not affect the decrees; it merely provides that the deliveries be

limited to those actually needed to serve water rights. As such, this

is not a taking of a constitutionally protected property right by the

Adjusted OCAP.

6. The Adjusted OCAP Denies Carry Over Storage Rights: Carry over

storage refers to the ability to store in a reservoir water that is not

needed in one year for use in the next year, if needed. Five commenters

believe the Adjusted OCAP, as well as the 1988 OCAP currently in place,

take away carry over rights in Lahontan Reservoir by limiting the

diversion of Truckee River water. They contend the diminution of carry

over storage under Adjusted OCAP erodes the principle of storing in

times of plenty for times of drought. Further, one commenter contends

that carry over storage is a right that was given to irrigators when

they traded their pre-Project vested water rights to the Federal

government for water rights in Lahontan Reservoir. In contrast, one

commenter felt that the proposed end-of-month storage target for

October of 52,000 acre-feet was too high because it could allow carry

over of Truckee River water diverted right at the end of the irrigation

season.

The Adjusted OCAP provides for storage of Truckee River water in

Stampede Reservoir in lieu of diversions to Lahontan. One commenter

asked why the Adjusted OCAP would not allow carry over storage of

Newlands Project water in Stampede Reservoir.

Response: All water remaining in Lahontan Reservoir at the end of

the irrigation season does carry over to the next year and this is not

changed by the Adjusted OCAP. The Project water users benefit from

carry over storage of all the Carson River water that remains in

Lahontan Reservoir and provides protection against future droughts.

However, to the extent that any portion of the water remaining in

Lahontan Reservoir is water that had been diverted from the Truckee

River, such water is, by definition, water that was not needed to serve

Project water rights. It is the presence of this Truckee River water in

Lahontan Reservoir at the end of the irrigation season that Adjusted

OCAP seeks to minimize because it conflicts with the court's basic

requirement of OCAP: that the Newlands Project receive only the Truckee

River water needed to serve water rights so that the Secretary's trust

responsibility to the PLPT may be fulfilled. Likewise, for Newlands

Project water stored in Truckee River reservoirs, any water left over

at the end of the season is water that was not needed to serve Project

water rights and, therefore, should go to Pyramid Lake.

The goal of OCAP is to divert just that amount of Truckee River

water needed to serve water rights in the Project and to let the rest

continue to Pyramid Lake. The ideal OCAP would be based on demand and

only allow diversions of Truckee River water to Lahontan Reservoir when

it was actually needed for the Carson Division, and then, in quantities

sufficient to always meet the water demand. This would ensure serving

all water rights all the time with no over-diversions of water and no

Truckee River water spilled from Lahontan Reservoir. Unfortunately, our

analysis indicates that such a ``demand only'' OCAP would not serve

water rights because of the variability in the amount of water

available for diversion from the Truckee River from month to month, and

because of the capacity limits of the Truckee Canal.

Instead of a demand-only OCAP, the Adjusted OCAP rule continues to

allow diversions of Truckee River water to Lahontan Reservoir, even at

times when the water is not immediately needed to serve water rights at

the time of diversion, as a safeguard for a water supply later in the

year against the unpredictability of the runoff from the Carson River.

This is why the Adjusted OCAP includes a storage target greater than

zero for October. The modeling analysis of the Adjusted OCAP indicates

that it provides a water supply for the Newlands Project consistent

with the water supply evaluated in the 1988 OCAP, even though the

supply is less than under current (i.e., 1997) conditions.

7. There was Inadequate Information Provided to Evaluate the

Proposed Rule: Eight commenters raised questions and concerns about the

amount of information made available by the DOI in support of the

Notice of Proposed Rulemaking. These concerns centered on modeling

evaluations of the proposed Adjusted OCAP and alternative OCAP

scenarios that had been considered. Some commenters believe that due

process is being ``trampled'' or that modeling results were skewed

because all of the information in the government's possession was not

made public. Others questioned how the proposed rule could be evaluated

without foundational data and assumptions. Yet another commenter chided

DOI for manipulating data to achieve a predetermined result. Specific

questions were posed regarding the need for a modeling scenario that

allowed Lahontan Reservoir to fill without storage target limits and

another modeling scenario for current conditions.

Response: In developing the Adjusted OCAP rulemaking, the DOI

evaluated five OCAP alternatives based on different storage target

regimes. These were modeled and compared with modeled scenarios for

current conditions and for the 1988 OCAP with 1988 time frame

assumptions and 1994 time frame assumptions. In all, nine modeling runs

were examined. The printout from each modeling run is approximately 400

pages long. To facilitate comparisons of the modeling runs a single

summary table labeled Table 9 was prepared listing 9 input assumptions

and 53 key output parameters for each run. The DOI did not model a

``full reservoir'' scenario because it would not be consistent with the

decision in Tribe v. Morton and would serve no practical purpose.

In response to requests for information on modeling runs considered

by the DOI, Table 9 was made available to all parties. In response to

requests for more detailed information, we also provided copies of the

full 400-page proposed rule modeling run and a 36-page document of 94

years of modeled monthly output for 29 parameters. Table 9 was made

available at three public workshops on the proposed rule and the

availability of the remaining materials was announced in a Federal

Register notice dated February 18, 1997, extending the comment period

on the proposed rule by 60 days. The DOI believes that the modeling

information provided was specific to the proposed rule and sufficient,

when used in conjunction with the Notice of Proposed Rulemaking, to

allow the public to evaluate and comment on the proposed rule.

8. OCAP Modeling: Many questions and comments were received

regarding the Truckee River operations model used in developing the

Adjusted OCAP. Commenters noted concerns both with the model itself and

with DOI's use of the modeled data. One commenter noted that DOI is

relying on a long string of assumptions in using the

[[Page 66452]]

model, and that the model cannot be used to determine the water supply

for decreed rights. Another believes the operations model to be a

product of collusion between the United States, the Pyramid Lake Paiute

Tribe of Indians, and Sierra Pacific Power Company.

Several commenters wanted to know if and how the operations model

had been calibrated or verified. There were also questions about the

reliability of the model's estimates of parameters like seepage and

evaporation, sensitivity to various parameters, and about the

uncertainty these parameters create in the modeled output. One

commenter asked if the model was available for review.

Another series of comments questioned why ``real data'' were not

used and the model generates certain input data for missing stream

gauges or extrapolates reservoir operations for time periods when the

reservoirs were not in existence. Commenters also questioned why the

model examines a 94 year time period instead of the last 30 years,

especially when early stream gauges were not accurate.

Commenters also addressed the modeling results. Several noted that

the modeled results do not match what actually occurred in some years

and asked if DOI would monitor the actual Project hydrology, and if DOI

would change the OCAP if it did not match what actually happens.

Modeling was also thought by some to underestimate or to cover the

actual effects of shortages that result from not achieving high

efficiency requirements. One commenter suggested that the model does

not show the economic effect of lower Lahontan Reservoir storage on

hydropower generation, and does not account for the effect of upstream

storage in lieu of diversions to the Project. Some recommended

identifying shortages, or using the first year of a drought instead of

listing average shortages because averages do not show the one in ten

year event.

Response: The Truckee River operations model, a monthly river and

reservoir operations accounting model, was developed by the BOR and has

been added to and upgraded by contractors and BOR staff. The model is

in the public domain and has been used as an analytical tool in a

number of negotiations in western Nevada and has been accepted by

parties to these negotiations as the best modeling program available

for evaluating various Truckee River and Newlands Project operating

scenarios. Over the years, various versions of the model have been made

available to many organizations to use independently, including Sierra

Pacific Power Company, the Pyramid Lake Paiute Tribe, TCID, and the

States of Nevada and California.

Critics of the model point out that it does not use ``real'' data

and its results do not replicate the historic record. The reason is

that the model uses historic hydrology of the Truckee and Carson Rivers

starting with 1901, but has to extrapolate to fill data gaps from the

early 1900's. Also, the Truckee River operations and hydrology are

modified in the model to assume that all the reservoirs and operations

in place today have been in place since 1901, which is not this case.

This allows the model to keep a single accounting book of reservoir

records rather than having a new set of accounting books added to the

program when each new reservoir was built. Thus, modeled output

reflects operating the rivers with today's reservoirs and physical

features in place using 94 or 95 years of hydrology. Though suggestions

have been made to use a shorter time period such as 30 years of

hydrology, we believe the longer time period is a more robust data

base.

The model has undergone reviews by a number of modeling peers and

users of the model and has been evaluated for sensitivity to certain

parameters. Its input parameters for terms like seepage and evaporation

are based on field tests and observations. Because the model has been

widely accepted for use as a comparative tool for examining different

water management scenarios, it has not been calibrated for or verified

against any particular year or period of record.

The model uses historic hydrology, so it cannot be used

predictively, and by standardizing physical features, it cannot be used

to create an accurate hindcast. However, standardizing the river and

reservoir operations allows users to look prospectively at what might

happen in the future if the range of hydrology of the past is

representative of what might happen in the future.

By holding the physical features and hydrology constant, the DOI

uses the model to examine, compare, and contrast different operations

scenarios. The modeling is only used for comparative purposes and not

to suggest a specific future condition will exist. Operations under the

Adjusted OCAP will be monitored, but not for the purpose of comparing

the day to day operations in the Project with modeled results. As one

commenter noted, upstream storage in lieu of diversions to Lahontan is

not accounted for in the model. Upstream storage is intended to refine

the Truckee River diversion so that there is no inadvertent over

diversion. Because the model does account for forecasting errors and so

allows occasional over diversion, it may overestimate the water supply

in years when upstream storage might be used. Also, the model does not

consider the effects of lower reservoir levels on hydropower

production; this is considered in the environmental assessment for the

Adjusted OCAP rulemaking.

The DOI has examined and considered the severity of drought years

besides looking only at average water supplies. Table B shows the

modeled water supply for drought years in four modeled scenarios: 1988

OCAP assumptions with current hydrology; the Current Conditions,

Proposed Adjusted OCAP, and Final Adjusted OCAP. The Project water

supply under Final Adjusted OCAP is comparable to, though slightly

better than, what was modeled for the 1988 OCAP with the demand

assumptions for 1992, however it is less than the Current Condition

water supply. In the nine driest years, Final Adjusted OCAP is better

than what the Project is modeled to experience under the 1988 OCAP, but

worse than Current Conditions by 27,000 acre-feet on average for those

nine years. The additional shortage is the result of reduced carry over

of Truckee River in Lahontan Reservoir at the start of each year under

Adjusted OCAP.

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9. OCAP Development and Alternatives Selection: When it was first

announced in March 1995 that the DOI would be making adjustments to the

1988 OCAP, then Assistant Secretary for Water and Science Betsy Rieke

made a commitment to the TCID and Newlands Water Protective Association

(NWPA) that they would be consulted about changes the DOI was

considering before any decisions were made. Several commenters have

argued that the government did not fulfill this commitment, while

others have asked for a new proposed rule to be developed in

cooperation with all parties. One commenter objected to the rulemaking

process because they were not invited to a briefing on the proposed

rule after the Federal Register notice was published. Another commenter

asked if the State of Nevada had been informed about the proposed rule.

One commenter viewed the proposed rulemaking as a ``take it or leave

it'' ultimatum without consideration of reasonable alternatives, and

suggested that a new proposal should be developed in cooperation with

other parties. Two commenters believe the attorney for the PLPT had

``inside knowledge'' of the proposed rule and that TCID and NWPA were

excluded from participation while the PLPT and DOI developed the rule.

Another cited DOI's alleged fiduciary responsibility to water right

owners that the DOI must fulfill. Yet another commenter supported the

proposed rule but thought that DOI should have selected an alternative

that provided more benefits to Pyramid Lake. A State agency recommended

delaying the rule for more complete environmental and economic

evaluations and to await completion of negotiations between TCID and

PLPT. Commenters also suggested that the DOI take notice of the draft

Truckee-Carson River Basin Study for the Western Water Policy Review

Advisory Commission.

Response: The rulemaking was conducted in accordance with

Administrative Procedure Act requirements, which included notice

published in the Federal Register and an opportunity for comment by all

interested parties, as detailed in the Rulemaking Process section of

the preamble. In addition, certain parties were advised early in 1995

that before a decision was made, they would have an opportunity to

review changes DOI was considering making to the 1988 OCAP. The DOI

honored this by meeting with TCID, NWPA, PLPT, FPST, the State of

Nevada, and other parties to brief them on the content of the proposed

rule after it was published in the Federal Register. For interested

parties that did not attend this briefing, the same presentation was

made later at two public workshops on the proposed rule.

The view that the Adjusted OCAP is a ``take it or leave it''

proposal without considering alternatives presumes that the proposed

rule was a negotiating position. It was not. The DOI has been

unsuccessful in several multiparty efforts to negotiate an OCAP

settlement for the Newlands Project. The most recent effort, outside of

current ``out of court'' discussions to settle pending litigation, was

a facilitated negotiation that ended in March 1995, after which the DOI

announced its intention to proceed with changes to the 1988 OCAP. In

developing the Adjusted OCAP rule, the DOI has examined a wide range of

alternatives, including those that were presented during the

facilitated negotiations. The DOI held four well-attended public

workshops in August and September 1995 to discuss possible changes to

the 1988 OCAP and afford the public early input to developing the

Adjusted OCAP. With the exception of these public workshops, no outside

parties participated in DOI's development of the Notice of Proposed

Rulemaking. As well, to our knowledge, no outside party has

participated or been privy to development of this Notice of Final

Rulemaking.

The DOI has reviewed and takes notice of the draft Western Water

Policy Review Advisory Commission report.

The DOI selection of Alternative D for the proposed Adjusted OCAP

and as the basis for the final Adjusted OCAP is primarily based on the

mix of water savings and water supply impacts this alternative

provides. The obligation owed to the water rights holders in the

Newlands Project is a contractual obligation, not a fiduciary

obligation. In evaluating OCAP alternatives, the DOI must seek to

satisfy its contractual obligation to serve water rights, and to meet

its Trust responsibility to the PLPT. Also, the DOI has completed both

environmental and economic analyses in promulgating this rule.

10. Relationship of OCAP to the Truckee River Operating Agreement:

Three commenters raise concerns regarding ongoing Truckee River

Operating Agreement (TROA) negotiations which address, in part, storage

in Truckee River reservoirs. Their concerns fall into three areas.

First, that absent the TROA, the DOI has no authority to implement the

upstream storage provisions necessary for storage in lieu of

diversions, and therefore the Adjusted OCAP cannot precede TROA.

Second, that until the TROA is completed there is no way for the DOI to

evaluate opportunities for storage in lieu of diversions or assess what

impact TROA may have on Truckee River flows available to the Project.

Third, that the relationship of OCAP storage to other storage under

TROA is not clear, and OCAP storage cannot adversely affect existing

storage agreements.

Response: The Adjusted OCAP rule does not establish credit storage

in lieu of diversions; that was established in the 1988 OCAP already in

effect. This Adjusted OCAP rule extends the time period during which

water may be credit stored, from April-June, to November-June, and it

clarifies the procedures for storage in lieu of diversions. Therefore,

the TROA negotiations need to address OCAP storage regardless of

whether the 1988 OCAP is replaced by Adjusted OCAP or not. Also, the

United States already has the authority to capture this water in

Stampede Reservoir or to credit store the water out of fish water in

Stampede by exchange and does not need TROA to be in place.

Modeling for the Adjusted OCAP does not assume that the TROA is in

effect and therefore does not assess whether the TROA would have any

impact on the Newlands Project. However, Pub. L. 101-618 mandates that

the TROA must not adversely affect water rights. Preliminary modeling

results for the draft TROA EIS indicate that flows in the Truckee River

are affected by increased water use over time in the Truckee Meadows,

and by effluent reuse programs associated with the Water Quality

Settlement Agreement.

The effect of OCAP storage is unclear, but the DOI has agreed

preliminarily that it will not credit store water in lieu of diversions

if such credit storage would adversely impact the storage, retention,

or use of other categories of credit water under TROA. The text of the

Adjusted OCAP in section 418.3(e)(8) has been modified to ensure that

OCAP storage does not interfere with other storage in Truckee River

reservoirs. It should be noted that TROA is the subject of continuing

negotiations among many parties and that its timing and configuration

are not yet known.

11. Compliance with National Environmental Policy Act (NEPA): The

DOI received many comments on the draft EA that accompanied publication

of the proposed Adjusted OCAP rule. Those comments, including

recommendations for mitigation of environmental effects, are addressed

in the final EA.

Eight commenters questioned the DOI's preliminary determination

that

[[Page 66455]]

the Adjusted OCAP is not a significant Federal action requiring

preparation of an EIS, citing general impacts to wildlife, wetlands,

ground water, and socio-economic effects. One commenter suggested that

because the Adjusted OCAP violated laws related to water rights, this

must be considered a significant impact under NEPA. Several commenters

cited the need for a programmatic EIS to be prepared on the Adjusted

OCAP and all other actions under Pub. L. 101-618.

Response: All comments received regarding environmental effects

have been considered and addressed in the EA. While the EA does discuss

possible effects on wildlife, wetlands, ground water, and socio-

economic impacts, none of these were considered to be significant for

NEPA purposes. Further, nothing in this Adjusted OCAP rule causes a

violation of law. Where appropriate, mitigation measures and their

environmental benefits are discussed in the EA.

A number of parties have advocated that the DOI must prepare a

single, programmatic EIS on all actions under Pub. L. 101-618,

including for the Adjusted OCAP. The DOI disagrees with this position.

This issue was the subject of litigation brought by Churchill County

and the Town of Fallon, was dismissed by the U.S. District Court for

Nevada, and is currently the subject of an appeal to the United States

Court of Appeals for the Ninth Circuit.

12. Compliance with Executive Orders: One commenter questioned

whether this rulemaking complies with various Executive Orders that

must be considered in promulgating regulations. This person believes

the more than 120,000 acre-foot reduction in storage targets in

Lahontan Reservoir poses an unreasonable cost on society and triggers

the need for the rule to be reviewed by the Office of Management and

Budget (OMB) in accordance with Executive Order (E.O.) 12866. Under

E.O. 12612 on Federalism, the commenter questions whether the DOI has

properly evaluated the need for Federal action and the impacts of the

Adjusted OCAP on the State of Nevada's sovereignty and costs or burdens

on the State. The commenter asks that DOI not adopt the Adjusted OCAP

rule until it completes the requirements of E.O. 12606 on the Family,

particularly with respect to impacts on family earnings. The commenter

also believes the Adjusted OCAP rulemaking does not comply with E.O.

12988 on Civil Justice Reform because of the likelihood that the DOI

will be sued on the rule.

Response: The cited change in Lahontan Reservoir storage targets is

inaccurate and is not a basis for review of the Adjusted OCAP

rulemaking by OMB. The proposed Adjusted OCAP reduced the key January

to June storage target from the 1988 OCAP level of 215,000 acre-feet to

174,000 acre-feet, a reduction of 41,000 acre-feet. The reference to

``more than 120,000 acre-feet'' assumes a reduction from the reservoir

capacity of 295,000 acre-feet to 174,000 acre-feet. The changes in

storage targets only affect the trigger points for diversion of Truckee

River water to Lahontan Reservoir. The storage targets do not impose

any limit on the amount of Carson River water or the total amount of

water that can be held in Lahontan Reservoir. Further, in response to

comments, the DOI has revised the end-of-June storage target to 190,000

acre-feet, though retains the January-May targets at 174,000 acre-feet,

subject to the adjustment procedure in section 418.22 of the rule.

The economic threshold for OMB review under E.O. 12866 is if the

proposed rule is anticipated to have an economic impact of $100 million

or more on a single entity or an economic sector. The economic impact

of the Adjusted OCAP rule is based on average changes to the water

supply and its effects on foregone production of alfalfa. These effects

would only be experienced in drought years, the intensity of which

would determine any actual changes in production. The average effect is

calculated to be in the range of $561,000 to $283,000 per year, gross,

to the agricultural sector. This estimate reflects the price of alfalfa

without subtracting production costs. A 1994 study by the University of

Nevada Cooperative Extension (Fact Sheet 94-22, Alfalfa Production

Costs for Fallon, Nevada Area, by Wheeler and Meyer) concluded that the

per acre profit for alfalfa was approximately $220 per acre which

places the economic impact of the Adjusted OCAP at approximately

$160,380 based on the rule having a water supply impact that might

otherwise have served 729 acres. Nor does the Adjusted OCAP rule meet

any of the other criteria for significance under E.O. 12866 regarding a

serious conflicting action with another Federal agency, creating a

budgetary impact, or raising novel legal or policy issues.

The Adjusted OCAP makes changes to four existing provisions of the

1988 OCAP. It neither creates any new requirement affecting the

sovereignty of the State of Nevada, nor changes the role of the State

or its rights and responsibilities with respect to regulating the

Newlands Irrigation Project. The State was notified of the DOI's intent

to proceed with the Adjusted OCAP rulemaking in 1995, participated in

workshops on developing the proposed rule, and was consulted with

before publication of the proposed rule. The DOI believes the

requirements of E.O. 12612 on Federalism have been satisfied.

The DOI has examined the impact on family income as a result of the

Adjusted OCAP in accordance with E.O. 12606. The economic impact of the

Adjusted OCAP, which is experienced only within the Carson Division of

the Project and only during the first year of a drought, translates

into an estimated average economic impact on production of between $10

and $5 per acre per year, and an impact on profits of approximately

$2.90 per acre per year. This cost is neither considered to have a

significant impact on family budgets, nor expected to have any effect

on any other family criteria under E.O. 12606. In addition, each

farmer's strategy for managing a reduced water supply in a drought will

affect their costs of production, which are typically $450 to $476 per

acre, and gross receipts, which may mitigate or exacerbate the effects

of the rule. If a farmer's net return is $220 per acre as noted, it is

possible that leasing water in a drought year would generate more

profit than alfalfa production in a full water year. However, none of

these economic assessments includes the costs of replanting crops which

might be necessary following severe droughts or leasing water. While

the precise impact to each family budget is unknown, the DOI is

cognizant of and has considered these overall effects in this

rulemaking.

The applicable standards of E.O. 12988 on Civil Justice Reform do

not set a threshold on the possibility of litigation as a consequence

of the rulemaking. While we seek to avoid litigation, we recognize that

all rulemaking holds the possibility of litigation by an allegedly

aggrieved party. The DOI does not consider the litigious and turbulent

history of Newlands Project OCAPs to be dissuasive in pursuing its

responsibilities.

II Adjusted OCAP Issues

1. Project Acreage Base: The adjustments to the 1988 OCAP are

based, in part, on anticipated increases in irrigated Project acreage

that did not take place under that OCAP and some changes that did take

place. The 1988 OCAP anticipated and was based upon the acreage in the

Project increasing to 64,850 acres with an attendant headgate

entitlement of 237,485 acre-feet and a total diversion demand of

346,985 acre-feet. Instead, the project acreage is

[[Page 66456]]

currently approximately 59,000-60,000 acres with a headgate entitlement

of approximately 206,500-210,000 acre-feet and a total diversion demand

of approximately 301,900-307,000 acre-feet. The current diversion

demand figures for the Project are the result of a smaller acreage base

than had been anticipated in the 1988 OCAP, reduced entitlements based

on the so-called ``bench/bottom'' litigation (1995 Order of Judge

McKibben, in U.S. v. Alpine, United States District Court for the

District of Nevada No. D-185), ongoing water transfer litigation, a cap

on water use by the Fallon Paiute-Shoshone Tribes, and a transfer rate

of 2.99 acre-feet per acre for acquired wetland water rights as has

been transferred to date instead of 3.5 or 4.5 acre-feet per acre. In

response to the reduced water demand, the Adjusted OCAP changes the

Lahontan Reservoir storage targets to provide a commensurate reduction

in water supply from the Truckee River.

The DOI has received comments from eight parties objecting to the

proposed storage targets using a 1995 acreage base of 59,075 water-

righted, irrigated acres, when there are nearly 73,000 acres in the

Project assessed annual charges for operations and maintenance (O&M).

Commenters also disagree with BOR's determinations as to which lands

are eligible for water deliveries. They contend that acreages and

entitlements could change as a result of rulings favorable to

irrigators in the transfer litigation and individual readjudications of

the bench/bottom decision.

Response: The DOI agrees that the Project water demand may change

over time. When the Notice of Proposed Rulemaking was published, the

DOI assumed that changes affecting water demand might not occur for

some years. It appears, now, that resolution for some proposed water

rights transfers may occur sooner. Also, the 1995 actual irrigated

acreage figure used in developing the Adjusted OCAP may have been

depressed following several years of drought. The irrigated acreage

reported for 1996 and estimated for 1997 has increased somewhat. On the

other hand, additional acreage has been acquired for wetlands use at

2.99 acre-feet per acre which would tend to reduce water demand on the

Project.

In response to these comments, the DOI is adopting, in effect, a

sliding scale of storage targets predicated on holding the water supply

available to the Project commensurate over a range of water demands.

The table Adjustments to Lahontan Reservoir Storage Targets in the rule

shows targets corresponding to water demands from 249,800 acre-feet to

290,200 acre-feet, and section 418.22 includes formulae for demands

below and above those levels. For all levels of demand, the average

annual water supply is about 97.4 percent. As an example of using the

storage targets to match demand, Table C shows key modeling results for

two demand levels below the Adjusted OCAP level and two above the

Adjusted OCAP. In the four variations, the water supply to the

individual irrigators remains at approximately the same level

consistent with the proposed Adjusted OCAP water supply level.

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The BOR will determine at the end of each irrigation season what

change, if any, is to be made to the monthly Lahontan Reservoir storage

target for the next year, starting with the November end-of month

storage target. Changes in the storage targets shall be implemented in

whole increments of 1,000 acre-feet as indicated on the Table. For

water demands above or below the values shown on the table Adjustments

to Lahontan Reservoir Storage Targets, the two formulae associated with

the table will be used to calculate the target adjustments, but will

only be implemented in whole units of 1,000 acre-feet.

Carson Division water demand from the previous full water year (100

percent supply) will be the basis for changes in storage targets.

Following any water year there will be a one-year lag in water demand

data because verification of the irrigated acreage cannot be determined

until about March for the prior irrigation season ending in October.

For example, the Carson Division water demand for the 1997 irrigation

season, a full water year, will not be known until March 1998. Under

this rule, any further adjustments to storage targets could not go into

effect before November 1998.

These flexible storage targets in Adjusted OCAP will address the

concern that the DOI has selected an unreasonably low acreage or is

relying on an inflexible demand base for setting Lahontan Reservoir

storage targets. This provision assures the irrigators a consistent

water supply as Project acreage changes.

2. Changes in Storage Targets: The Adjusted OCAP change Lahontan

Reservoir storage targets to bring the water supply in Lahontan

Reservoir in line with the Carson Division water demand in a manner

that is consistent with the 1988 OCAP. The DOI received specific

comments from nine parties, some saying that this change in storage

targets will cause shortages and artificial droughts. Some comments say

the reduced December and winter storage targets will cause diversions

to begin later in the spring and summer when less water is available in

the Truckee River. This will cause shortages that will prevent water

entitlements from being satisfied or will satisfy entitlements in

normal water years but leave less water in storage at the end of the

irrigation season creating new droughts or worsening droughts in future

years. In turn, this will reduce crop yields, and in drought years,

more farmland will be fallowed, requiring larger capital investment to

replant after a drought. One commenter asked if DOI only looked at

elements that might reduce Truckee River diversions rather than

increase them. It appears to some that the DOI is deliberately creating

shortages in the Project water supply by only adjusting OCAP provisions

that increase shortages, and asking the water rights owners to bear

these shortages and the related economic effects. After all, one asks,

isn't the goal to reduce risks of shortages? Another commenter said

basing reduced diversions on trust obligations is disingenuous because

the real reason is to allow growth in the Reno and Sparks area.

Another area of stated concern in comments is that the change in

Lahontan Reservoir storage targets is unjustified because the

percentage reduction in storage targets exceeds the percentage

reduction in Project acreage. One commenter asks whether DOI is

assuming a 1:1 relationship of storage targets to water demand and

whether that same relationship applies to the current project acreage.

Other commenters suggest that the Adjusted OCAP storage targets are

too high and the October storage target should be reduced to 4,000

acre-feet, the November and December targets reduced, and, in years of

high precipitation, the October to December targets reduced. One

suggests that the 4,000 acre-foot minimum pool in Lahontan should be

eliminated or maintained out of water rights acquired for that purpose,

otherwise it is, in effect, maintained out of the Truckee River by a

higher storage target.

Response: The Adjusted OCAP do not lower storage targets for the

purpose of creating water shortages in the Project. The purpose of

lower targets is to reduce unnecessary diversions of water from the

Truckee River. The storage targets are calibrated to meet the

Secretary's trust responsibility to minimize Truckee River diversions

while satisfying the Secretary's contractual obligation to provide an

appropriate water supply to serve Project water rights. Also, the

benefits of reduced Truckee River diversions accrue to water users

downstream of Derby Dam and to Pyramid Lake. Reno and Sparks derive no

benefits from Adjusted OCAP.

The 1988 OCAP established a set of Lahontan Reservoir storage

targets that were expected to satisfy the existing and increasing

future water demands of the Newlands Project. It was assumed that the

Project would grow to 64,850 acres and be served in the Carson Division

by the 215,000-acre-foot-storage-target set defined in the 1988 OCAP.

Modeling indicates that the 1988 OCAP with conditions projected for

1992 would provide approximately a 97.27 percent water supply. However,

the Project did not attain the size envisioned. The fortuitous

consequence for the Carson Division water users has been to have the

current acreage level and corresponding water demand served out of a

water supply capable of serving a larger Project. Thus, the Project

today enjoys an average water supply modeled at 98.34 percent, but also

increased spills and other losses at the expense of the Truckee River

and Pyramid Lake. The proposed Adjusted OCAP would have provided an

average water supply of 97.38 percent, a reduction from current

conditions by about 2,550 acre-feet on average. This Adjusted OCAP

final rule, by increasing the end-of-June storage target to 190,000

acre-feet, provides a modeled average water supply of 97.40 percent,

which is approximately the same supply the 1988 OCAP would have

provided with expected growth.

The lower Lahontan Reservoir storage targets do reduce, as noted in

comments, the available Project water supply, but still serve water

right entitlements for full water years in nine out of ten years, based

on the historic hydrologic record. Lower storage targets also result in

less water remaining in the Reservoir at the end of each season which

means that in the approximately one year in ten when there is a

drought, there is less water carried over to cushion the Project from

the drought, as shown in Table B. Generally, if a drought lasts for

more than one year, the storage targets have no effect on the Project

water supply because the target limits are never met and TCID can

continue diversions of water from the Truckee River that may be

available, subject to higher priority Orr Ditch water rights. Any

additional shortage resulting from Adjusted OCAP has an economic

effect, which is discussed in I.12. of this preamble.

Regarding percentage reductions in acreage and targets, there is

not a one to one relationship between Project acreage and storage

targets under the Adjusted OCAP or the 1988 OCAP. Storage target levels

determine when TCID can divert water from the Truckee River to Lahontan

Reservoir. Under the Adjusted OCAP, during January through May when

Lahontan Reservoir storage is forecast to be below 174,000 acre-feet at

the end of June, TCID may divert Truckee River water to Lahontan. If

the water level in Lahontan Reservoir is forecast to be above the

storage level of 174,000 acre-feet at the end of June, then TCID may

not divert Truckee River water to Lahontan. The 174,000-acre-foot

target is not a new limit on how much water Lahontan Reservoir may

[[Page 66459]]

hold. Lahontan Reservoir can still fill to capacity with Carson River

water, as it has done, for instance, in the past three years.

The percentage change in Project acreage from a projected 64,850

acres to 59,075 acres is an 8.9 percent reduction. Acreage is directly

related to water demand and OCAP's goal is to provide the appropriate

water supply to meet the demand for water righted acreage in

irrigation. In the Adjusted OCAP rule, storage targets are adjusted so

that in most years, the Project water supply in Lahontan matches or

exceeds (based primarily on Carson River inflow) the water demand at

current acreage levels. The corresponding percentage reduction in

average water supply from the 1988 OCAP with 1992 assumptions to the

Final Adjusted OCAP (from Table A) is modeled to be about a 7 percent

reduction (284,020 acre-feet and 263,950 acre-feet, respectively).

Separate from the percentage reductions in acreage and water demand,

the OCAP determines how to get enough water in Lahontan Reservoir to

satisfy the water demand. Lahontan Reservoir receives an average annual

inflow of approximately 355,000 acre-feet of which, on average, about

80 percent is Carson River inflow and 20 percent Truckee River

diversions to Lahontan. Therefore, a given percentage reduction in the

storage target for Truckee River diversions has a much smaller

percentage effect on the total water supply in Lahontan Reservoir. For

example, a 50 percent reduction in storage targets would still provide,

on average, about a 90 percent supply to the Project; a 100 percent

reduction in storage targets (no Truckee River water) would still leave

an 80 percent water supply, on average.

On the issue of maintaining a 4,000 acre-foot minimum storage in

Lahontan Reservoir, that is not a provision of OCAP, but rather appears

to be an informal agreement between TCID and the Nevada Department of

Conservation and Natural Resources to provide some water for fish in

the Reservoir. Although Lahontan Reservoir was designed for irrigation

water storage, Pub. L. 101-618 expands the authorized purposes of the

Newlands Project to include recreation and fish and wildlife (Section

209 (a)), though no water rights have been transferred to the Reservoir

for that purpose. The DOI supports maintenance of the recreational

fishery at Lahontan Reservoir, and by modeling the Reservoir with a

4,000 acre-foot minimum level, the DOI acknowledges that this amount of

water is, in effect, unavailable for use in the Project. Also, the

minimum reservoir pool is beneficial to dam safety and operations

because both the dam and the valves and packing in the outlet works

perform best if kept wet instead of being subject to frequent wetting

and drying.

3. Project Conveyance Efficiency: The Adjusted OCAP does not change

the assumptions underlying the conveyance efficiency provision in the

1988 OCAP, but it does reduce the conveyance efficiency requirement

based on less Project acreage than was envisioned in the 1988 OCAP. The

basis for the new, lower conveyance efficiency requirement is that

conveyance efficiency generally decreases as the irrigated acreage in

the Project decreases because conveyance losses (seepage and

evaporation) are about the same even though deliveries to headgates

decrease.

Thirteen commenters questioned why DOI was continuing to rely on

the efficiency assumptions in the 1988 OCAP. The comments focus on a

table of 22 Potential Water Conservation Measures for the Newlands

Project first published as Table 4 in the 1988 OCAP and republished in

a modified form in the Adjusted OCAP proposed rule. Commenters object

to using this table because the conservation measures, many of which

were implemented by TCID, have not always achieved the water savings

predicted in the 1988 OCAP. Some stated that continuing to cite these

conservation measures perpetuates in the Adjusted OCAP the errors from

the 1988 OCAP. Some feel that DOI has not recognized the efforts of

TCID in trying to achieve the conveyance efficiency requirements by

relying on these conservation measures. One commenter stated that DOI

had used these conservation measures to justify unreasonable conveyance

efficiency requirements in the 1988 OCAP, while another commenter

stated that the requirements were made artificially high to run up

Project debits. Another commenter stated that the conservation measures

had interfered with getting irrigation deliveries at the optimum times

for plants. Several commenters wanted to know what other irrigation

projects the Newlands Project had been compared to in determining what

level of conveyance efficiency was possible.

Five commenters raised questions about how the Adjusted OCAP

conveyance efficiency was developed, whether DOI had considered the

1994 Report to Congress on the Newlands Project Efficiency Study, how

the lower storage targets relate to efficiency, and if we can be very

accurate in measuring conveyance efficiency.

Two commenters stated that the conveyance efficiency requirement

should not be lowered because the 1994 BOR Efficiency Study shows that

efficiencies could be increased to 75 percent, and that lower

efficiencies were inconsistent with BOR policy on water conservation.

Response: In planning the adjustments to be made to the 1988 OCAP,

the DOI identified four changes within the scope of the 1988 OCAP:

adjustments to Lahontan Reservoir storage targets based on current

irrigated acres, conveyance efficiency requirements based on current

irrigated acres, extending the time period for storage in lieu of

diversions to avoid winter over diversions, and giving BOR flexibility

in determining what snowpack/runoff forecasts to use. The DOI was asked

to consider more fundamental changes to the 1988 OCAP approach to

conveyance efficiency; however, the suggested changes were far beyond

the scope of the Adjusted OCAP analysis. The DOI has committed to a

review of conveyance efficiency requirements and conservation measures

as part of long-term revisions to OCAP, but not as part of Adjusted

OCAP.

The expected water savings from the 22 conservation measures

identified in Table 4 in the 1988 OCAP were based on information

available at the time. Many of those measures were suggested as a

relatively inexpensive means to achieve the conveyance efficiency

requirements in the 1988 OCAP. Some of the measures in Table 4 were

expensive and some of the predicted savings have not been achieved in

practice. Many of the 22 measures were implemented by TCID, although

not always consistently, but the predicted water savings were not

realized in all cases. In its 1994 Efficiency Study, the BOR recognized

the differences between the water savings predicted in the 1988 OCAP

and what had been achieved. It also identified other measures, some at

quite low cost, that could increase project efficiency. The Adjusted

OCAP incorporates the new information from the 1994 Efficiency Study

and updates the table on Potential Water Conservation Measures.

However, the 1988 OCAP neither required those specific measures from

Table 4 to be implemented nor precluded the Project from implementing

any other measures to improve water conservation and meet the

efficiency requirement. The conservation measures are not a means of

justifying conveyance efficiency requirements but were suggested as a

way to achieve those requirements. Nor are the conveyance efficiency

requirements a way to increase debits in the Project.

[[Page 66460]]

As suggested in a comment, it is difficult to know with precision

how a particular conservation measure improves conveyance efficiency.

One of the problems--and one of the twenty-two conservation measure

suggestions--is the inaccuracy of measuring deliveries to headgates. As

a result of the new Project O&M contract, TCID is undertaking

installation of water measurement devices to improve measurement of

headgate deliveries. The efficiency study estimates that this will

actually increase efficiency by about 7.5 percent because the current

measurement is inaccurate and seems to produce systematic over-

diversions to Project irrigators.

In formulating the conveyance efficiency requirements for the 1988

OCAP, BOR compared the Newlands Project to two other irrigation

projects concerning the conveyance efficiencies that might be achieved.

The BOR looked at the Payette Division of the Boise Project and the

South Side Pumping Division of the Minidoka Project, both in Idaho. The

observed conveyance efficiency in the Payette Division is 66.3 percent

and in the South Side Pumping Division 64.4 percent. As might be

expected, the Newlands Project shares some characteristics with these

projects and is different from them in other ways. The 1988 OCAP

considered these to be ``comparable'' projects, but no assessment has

been made of the validity of any comparisons.

The Adjusted OCAP reduction in the conveyance efficiency

requirement is calculated based solely on the current Project acreage

compared with the 1988 OCAP acreage assumptions and is unrelated to the

calculation of the Adjusted OCAP storage targets. The conveyance

efficiency requirement will be extrapolated each year using the 1988

OCAP acreage assumptions and the current acreage.

The DOI believes the reduced efficiency requirement to be

consistent with other changes in the Adjusted OCAP based on Project

acreage. This change recognizes the difficulty in meeting the

efficiency requirements when headgate deliveries are lower. It is not a

windfall for the irrigators because the reduced efficiency requirement

still cannot be met without physical or operational improvements in the

Project, although there is a benefit because it will reduce the debit

the Project may incur in certain years.

4. Effects of Other Actions on Efficiency: One commenter noted that

various water rights acquisition programs could result in the

acquisition and transfer out of the Newlands Project of a significant

portion of the water rights in the Truckee Division. The conveyance

efficiency in the Truckee Division is approximately 74 percent, and

this higher conveyance efficiency improves the overall Project

conveyance efficiency. The commenter is concerned that Truckee Division

water rights acquisitions will shift more of the burden of meeting

efficiency targets to the less efficient Carson Division.

Four other commenters say that the wetlands water rights

acquisition program managed by the FWS to acquire water rights for

Stillwater National Wildlife Refuge will make it difficult to achieve

the required efficiencies. The wildlife refuge is at the end of the

Project delivery system and commenters contend delivering increasing

amounts of water to the end of the system will reduce conveyance

efficiency. Another concern is that the pattern of water rights

acquisitions may eliminate deliveries to some properties along a

delivery lateral and result in less efficient water deliveries to other

remaining properties on the lateral. One commenter disagreed with the

assumption that the water rights acquisition program will, over time,

help to improve conveyance efficiency in the Carson Division, and cited

the 1994 BOR Efficiency Study to support this claim .

Response: While the concern for conveyance efficiency is

legitimate, the specific argument is questionable considering that

wasteful deliveries occur, including one at no more than about five

percent efficiency.

The DOI continues to believe that the pattern of purchases,

predominantly in the Stillwater and St. Clair Districts, the areas

closest to the wetlands, will improve Project efficiencies by

concentrating deliveries through the system. This is consistent with

the 1994 BOR Efficiency Study which states that delivery of more water

to wetlands should not affect seepage because the canals used to

deliver water to the wetlands are generally full throughout the

irrigation season, and that the wetted area of the canal and not flow

determines seepage.

The DOI recognizes that absent targeted water rights acquisitions,

the FWS may buy water rights in other areas of the Project. It is the

DOI position that if, at some appropriate point in the future, water

rights acquisitions in the Truckee Division or the Carson Division are

shown, on the whole, to have a demonstrable adverse effect on Project

conveyance efficiency, the calculation of Project conveyance efficiency

may be adjusted. This would be done solely at the discretion of the BOR

and only if a feasible technical approach can be developed to remove

the inefficient component of the delivery system from the calculation

of conveyance efficiency.

This should not affect the Secretary's carrying out his trust

obligations to the PLPT because each wetlands acquisition reduces the

demand for Truckee River water in the Project by transferring to the

wetlands only 2.99 acre-feet of every 3.5 or 4.5 acre-feet acquired.

Also, the conveyance efficiency improvements from concentrating

deliveries to the wetlands further reduces the demand for Truckee River

water in the Carson Division.

5. Credit Storage in Lieu of Diversions: The proposed Adjusted OCAP

rule extended the time period during which water might be stored in

Stampede Reservoir on the Truckee River in lieu of diverting that water

to Lahontan Reservoir. The 1988 OCAP allowed storage in lieu of

diversion from April through June. The proposed rule extended storage

in lieu of diversion to begin as early as January each year.

Six commenters raised a number of questions, foremost seeking a

better description of when credit storage provisions would be utilized,

how much water could be stored, when it would be released from storage,

and how it relates to storage targets. Another question was why DOI was

using credit storage to address unique events like high runoff years,

but not drought years. One commenter suggested that there would be

little benefit for the Truckee River or Pyramid Lake if credit storage

is only used in years that are full water years or better. Some

comments expressed concern for water levels in Lahontan Reservoir when

water was being stored in Truckee River reservoirs, and saw the

potential for less carry over storage in Lahontan and more diversions

from the Truckee River. One commenter questioned why unused Newlands

Project water could not be carried over to the next year in Truckee

River reservoirs. Another commenter asked why the credit water could

only be used in the Carson Division when the greater need for the water

might be in the Truckee Division.

Two commenters recommended that the credit storage in lieu of

diversions start in October to avoid excess diversions, particularly in

November and December. One commenter suggested that storage in lieu of

diversions should be done whenever possible, regardless of runoff

forecasts, and that credit water only be taken to Lahontan Reservoir

after June and then only to meet storage targets.

One commenter was concerned about the effects of storage in Truckee

River

[[Page 66461]]

reservoirs and recommended that water be stored in all Truckee River

reservoirs, not just Stampede reservoir, and that unused portions of

the credit storage should revert to the reservoir in which the water

would have been captured. The commenter wanted the storage priority for

OCAP credit water to be junior to all existing categories of stored

water and junior to all future storage under the TROA, and that it not

be stored adverse to Floriston rates without a hydropower waiver from

Sierra Pacific Power Company. Also, they indicated that the OCAP credit

storage should be subject to reductions by evaporation and spills.

Response: Extending the time period during which the credit storage

provision is applicable is intended to fine-tune the amount of water

the Project receives from the Truckee River. It is a way to avoid

excess winter diversions of Truckee River water that ultimately spills

from Lahontan Reservoir, as occurred in 1995, 1996, and 1997. The

following discussion is intended to clarify when and how the credit

storage provision (Sec. 418.20 (f)) will be used. In response to

comments received, and in consideration of the experience in December

1996 when approximately 22,000 acre-feet of water was diverted from the

Truckee River to Lahontan Reservoir and then was spilled in January

1997 due to high Carson River runoff, the Adjusted OCAP rule extends

credit storage in lieu of diversion to include November and December.

October was not included because it is during the irrigation season and

because it is the month with the lowest storage target--52,000 acre-

feet--so there is little risk that Truckee River diversions to meet

that target would result in a spill. As revised, this Adjusted OCAP

rule provides the BOR flexibility to determine, in consultation with

other parties, whether to initiate credit storage any time from

November through June of the next year.

Under this credit storage provision, water that otherwise would

have been released for diversion to Lahontan Reservoir that is actually

retained in Truckee River reservoirs would be credited as Newlands

Project credit water. Also, water that could be diverted to Lahontan

Reservoir but is allowed to pass Derby Dam may be credited as Newlands

Project credit water in Stampede Reservoir from the fish water stored

in Stampede Reservoir. In the latter situation, concurrence by the FWS,

and as appropriate, the PLPT, will be required because they control the

use of fish water, and the storage would have to be accomplished by

exchange with water dedicated to help restore endangered and threatened

fish at Pyramid Lake. For example, a reduction of diversions in January

through March of 1995, would have required FWS approval because water

was not being released for Project diversions.

Newlands Project credit water could be exchanged to other special

categories of water in Truckee River reservoirs such as project water

held for fish recovery, and can be retained in storage until the end of

the irrigation season. The number of categories available for such

exchanges is expected to increase if the TROA currently in negotiation

is completed and entered into effect.

Newlands Project credit water that spills may be captured and

diverted to the Project at Derby Dam if the diversion is within the

applicable OCAP storage targets. However, Newlands Project credit water

remaining in storage at the end of the Project irrigation season will

be managed to benefit threatened or endangered fish in Pyramid Lake.

Newlands Project credit water may be released for diversion to

Lahontan Reservoir, if needed, as early as July 1 through the end of

the irrigation season, but not thereafter. Credit water can be diverted

to Lahontan Reservoir only to meet applicable storage targets during

the irrigation season. Newlands Project credit water will not carry

over to the next year for use in the Project, therefore, if it is not

used in the year in which it is stored, it will not be available

thereafter to the Project. To protect the water users, the Newlands

Project credit water held in storage on the Truckee River will not be

reduced as a result of seepage or evaporation. If Newlands Project

credit water spills from Truckee River reservoirs it can be diverted at

Derby Dam for Lahontan Reservoir subject to applicable storage targets.

If the entire amount in credit storage is needed to meet Lahontan

Reservoir storage targets, then the amount of water released from

Truckee River reservoirs will be the amount actually captured in

storage. If the Newlands Project credit storage is based on water that

was allowed to pass Derby Dam, then sufficient water will be released

from credit storage to ensure that the diversion to the Project, as

measured at the U.S. Geological Survey gauge on the Truckee Canal near

Wadsworth, Nevada, matches the diversion foregone earlier in the

season.

The BOR is expected to apply this provision starting in November or

December only in years when the water levels in Lahontan Reservoir and

Truckee River Federal reservoirs are high enough to indicate that a

normal or near normal water year would be expected to satisfy Project

water demand. For example, there would be no point in credit storing

potential Truckee River diversions in November or December if Lahontan

Reservoir were nearly empty due to a drought in the preceding

irrigation season. Thereafter, Newlands Project credit water will be

stored in lieu of diversion if the Carson River runoff is forecast to

provide a full supply of water to Lahontan Reservoir.

The reason Newlands Project credit storage is not allowed to carry

over to subsequent years is because, by definition, the water left in

storage at the end of the irrigation is water that was not needed to

serve Project water rights. In accordance with Tribe v. Morton, the

credit water remaining is water that must flow to Pyramid Lake.

The effect of this provision on water levels in Lahontan Reservoir

will vary from year to year, depending on the amount and timing of the

Carson River spring runoff. The information on storage levels in Table

D does not include any effects from storage in lieu of diversion. If,

as expected, credit storage is exercised only during above average

water years, it may have little effect on recreation levels in Lahontan

Reservoir. Credit storage will tend to reduce water levels in Lahontan,

particularly in the spring and early summer recreation seasons, but if

the credit water is needed and taken to Lahontan later in the summer it

will increase water levels. The fine tuning facilitated by credit

storing will tend to reduce carry over of Truckee River water in

Lahontan and this will decrease spills.

BILLING CODE 4310-RK-P

[[Page 66462]]

[GRAPHIC] [TIFF OMITTED] TR18DE97.003

BILLING CODE 4310-RK-C

[[Page 66463]]

The Newlands Project credit water is not intended to be used to

balance the water supply between the Truckee and Carson Divisions of

the Project. The credit storage is created out of water that would have

gone to Lahontan Reservoir. If the credit water is needed to meet

storage targets in Lahontan Reservoir but it is instead diverted for

use in the Truckee Division, that leaves the Reservoir below targets

and places an additional call on Truckee River water. On the other

hand, if diversions out of winter and spring Truckee River water would

have met Lahontan storage targets and summer and fall flows are

insufficient to meet current demand there would be no bar to using a

portion of the stored water to equalize deliveries between the two

Divisions. It is expected that this situation could occur rarely, if at

all, since the intention is to divert sufficient water, when available,

to serve water rights and to store water in Stampede Reservoir only

when Carson River flows are expected to meet the Lahontan Reservoir

storage target criteria.

The priority of storage for Newlands Project credit water in

relation to other stored water and to Sierra Pacific Power Company's

hydropower right is expected to be resolved in TROA negotiations which

are not yet completed. (See also the response I.10. on the relationship

of Adjusted OCAP to TROA.)

6. Cui-ui Fish: Measures to recover the endangered cui-ui, a fish

species unique to Pyramid Lake, are detailed in the 1992 Cui-ui

Recovery Plan prepared by the FWS. These measures include increasing

the inflow of the Truckee River to the Lake to first stabilize what has

been a falling lake level, then increasing the water level in the Lake

so that the fish can eventually swim unaided up the Truckee River to

the fish passage facility at Marble Bluff Dam where they are passed

upstream to spawn. If the Lake level rises above Marble Bluff Dam, the

cui-ui will be able to spawn upstream without human assistance to get

over the dam.

Three good water years and four years of cui-ui spawning runs have

dramatically increased the population of cui-ui in Pyramid Lake,

although much of the increased population is juvenile fish which have

yet to contribute to spawning. Along with successful spawning and

increasing population have come questions about how much water the cui-

ui need for recovery. Nine commenters raised a number of issues

regarding cui-ui, the heart of which is questioning the need for

Adjusted OCAP in light of recent increases in the cui-ui population.

The underlying assumption is that the Adjusted OCAP's purpose is to

obtain more water from the Newlands Project for cui-ui recovery. This

notion was probably reinforced by the Endangered Species Act (ESA)

consultation on the 1988 OCAP which effectively limited the maximum

allowable diversion in the Project to 320,000 acre-feet per year to

avoid jeopardizing the continued existence of cui-ui. One commenter

asked what the current biological opinion shows for cui-ui at current

population levels.

One commenter asked why the 1988 OCAP was being changed when the

Recovery Plan was still under review by the National Academy of

Science. Two commenters questioned if a water demand for Pyramid Lake

or cui-ui had been defined or if DOI had performed a demand study for

the Newlands Project and concluded it needed 110,000 acre-feet for cui-

ui. Several commenters believed that modeling done for Adjusted OCAP is

flawed because it doesn't reflect current cui-ui data on population or

lake level relationships, and there is no information on how the cui-ui

index was formulated. These commenters also thought too much water

might be going to Pyramid Lake and could affect boating, the delta

wetlands, pelicans, and grazing. One commenter questioned why getting

110,000 acre-feet of water to Pyramid Lake for recovery of the cui-ui

was the sole responsibility for the Newlands Project.

Response: The original litigation in Tribe v. Morton is the basis

for the current OCAP for the Newlands Project, and that case is based

on the Secretary's trust responsibilities to the Pyramid Tribe, not the

Secretary's responsibilities under ESA to recover cui-ui. This is not

to say that cui-ui recovery is ignored in developing OCAP. As with any

action that may affect a species listed under the ESA, the Secretary

had to consider the effects of the 1988 OCAP on cui-ui and consult with

the FWS which resulted in the 1988 biological opinion. We have again

consulted with the FWS on this Adjusted OCAP and the FWS has confirmed

that the Adjusted OCAP will not adversely affect listed species,

including the endangered cui-ui. The recent population increase does

not alter the Secretary's trust responsibility to ensure that only the

water needed to serve Project water rights is diverted from the Truckee

River.

The Cui-ui Recovery Plan calls for annual inflow to Pyramid Lake to

increase by 110,000 acre-feet, although some of this water may be in

the form of equivalent benefits like improvements in lower Truckee

River habitat or enhanced fish passage over Marble Bluff Dam. This

amount of water or its equivalent is not based on a study of how much

water can or should be taken from the Newlands Project for cui-ui, but

on a determination of the water flows and Lake levels needed to ensure

the persistence of the species.

A revised provisional version of the cui-ui model has undergone

peer review and will be submitted to the cui-ui recovery team for their

consideration of the model and its results. The revised model includes

new information on cui-ui spawning and survival developed since the

current model version was developed. The revised model is expected to

better mirror the recent increases in cui-ui population. Even with the

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

marked increase in cui-ui numbers over the proposed rule modeling

because of the inclusion of the three good spawning years in the

hydrology. Except for the peer review of the model noted above, we are

not aware of any review of the Cui-ui Recovery Plan by the National

Academy of Science.

The reduced diversions of Truckee River water under Adjusted OCAP

do increase inflow to Pyramid Lake and, if the next 95 years match the

hydrology of the last 95 years (as the model operates), Pyramid Lake

could rise as much as 37 feet. This would inundate some existing

recreational facilities and possibly some roads, all of which would

have to be relocated. However, this only brings the elevation of

Pyramid Lake to approximately 3,840 feet, which is still lower than

Marble Bluff Dam and well below the Lake level when the Newlands

Project began.

7. Impacts on Recreation: Lahontan Reservoir is one of Nevada's

most important recreational lakes. It is operated as a State park

recreation area through an agreement with the BOR. A number of comments

were received citing the effects of lower storage targets in Lahontan

Reservoir on use of the lake for boating, fishing, swimming, and

camping. Nine commenters expressed concerns for recreation.

Several commenters cited Nevada's investment of $6.5 million in

facilities at Lahontan Reservoir, and view the Adjusted OCAP as a

breach of trust of the recreation agreement between the State and the

BOR, and further, as a conflict with the Reclamation Recreation

Management Act of 1992 section 2802 findings.

Most impacts are related to the lower water levels in Lahontan

during summer holidays. One commenter says the times the July target of

150,000 acre-feet won't

[[Page 66464]]

be met increases from 38 years to 54 years out of 94 years. Another

commenter cites a 41 percent reduction in storage. There is also a

concern that these impacts occur at a time of rapid growth in Nevada.

One commenter says the impact of losing 50,000 acre-feet to Pyramid

Lake is minimal compared with the virtual destruction of recreation at

Lahontan by these changes. One commenter suggested that the State of

Nevada should purchase and dedicate water rights for recreation at

Lahontan.

Response: Lahontan Reservoir was constructed for the purpose of

storing water to serve the Newlands Project. The Reservoir itself does

not enjoy an adjudicated or quantified water right. The United States

Court of Appeals for the Ninth Circuit has opined that ``The Lahontan

Reservoir, as a Project built under the federal Reclamation Act, was

intended for the primary benefit of the farmers who would use its

waters for irrigation, and any beneficial use of the reservoir by way

of recreation could only be incidental to that purpose.'' Further, the

United States has an affirmative duty pursuant to its trust obligations

to the PLPT not to divert any more water from the Truckee River than is

needed to meet Project water rights.

Not surprisingly, the water level in Lahontan fluctuates during the

irrigation season and from year to year, and is not always favorable to

recreational uses. Modeling results for the proposed Adjusted OCAP

indicate lower levels in Lahontan Reservoir during the recreation

season than are experienced under the 1988 OCAP. In response to

comments, but taking the Secretary's trust responsibility into account,

the storage targets in Adjusted OCAP have been modified from the

proposed rule as shown in Table A, lines 33 through 40. This change in

the final rule provides a slight increase in recreation levels in

Lahontan during the summer season.

Water levels in Lahontan Reservoir under the Adjusted OCAP will not

cause any damage to the existing recreation facilities developed and

constructed by the State of Nevada. The concern is that lower water

levels will ``virtually destroy'' the Reservoir as an important

recreation resource. The main obstacle to Lahontan recreation from

lower water levels is the boating access to the Reservoir via paved

boat ramps. The boat ramps are currently useable down to a storage

level of 120,000 acre-feet. As a mitigation measure to ensure continued

boating access to Lahontan Reservoir, the DOI proposes to extend the

boat ramps so that there is safe access down to a storage level of

90,000 acre-feet. With the extended boat ramps, modeling results for

Final Adjusted OCAP shown on Table D indicate that there should be

boating access through the Labor Day holiday about 75 percent of the

time.

Regarding the suggestion that the State of Nevada should purchase

and dedicate water rights for Lahontan Reservoir, this is beyond the

scope of this rule and beyond DOI jurisdiction. However, the State has

had discussions with the DOI on doing exactly this in conjunction with

acquiring water rights upstream of Lahontan Reservoir for recreational

and wetlands use.

8. Impacts on Wetlands: Eight commenters were concerned that

Adjusted OCAP would adversely affect the efforts of the FWS and the

State of Nevada to restore 25,000 acres of wetlands in Lahontan Valley

because of reduced flows to the wetlands. Flows to wetlands might be

reduced in three ways. First, agricultural water rights acquired by the

FWS or the State and transferred to wetlands are subject to all OCAP

requirements and effects on the water supply. Any increase in water

shortages for farmers is an increase in shortages for wetlands. Second,

the lower Lahontan Reservoir storage targets will reduce the frequency

and quantity of spills and precautionary draw-downs from the Reservoir,

a portion of which flows to wetlands. Third, any reduction in the water

applied to farm lands reduces the return flows to agricultural drains,

some of which carry water to the wetlands.

Several commenters felt that Adjusted OCAP conflicts with or

invalidates the assumptions in the Water Rights Acquisition EIS

recently published by the FWS, because they will need to acquire more

agricultural water rights. They did not believe it was the role of the

State or Federal water rights acquisition programs to mitigate for

effects from Adjusted OCAP. One also questioned if needing to mitigate

for effects on wetlands was contrary to the 1988 OCAP preamble.

Finally, one commenter asked how the OCAP would account for any

wetland water rights acquired above Lahontan Reservoir.

Response: Adjusted OCAP will not cause a net loss in wetlands,

however, it will have a minor effect on how quickly the FWS can obtain

all the water it needs for wetlands, and will require the FWS to obtain

additional water rights. Modeling results show that the long-term

effect of Adjusted OCAP will reduce slightly the yield from acquired

water rights for wetlands, reduce drainflows, and reduce water reaching

the wetlands from spills. The effect of Adjusted OCAP may be a

reduction in headgate deliveries and drainflows by about 1,100 acre-

feet. The average reduction in spilled water may be 4,000 acre-feet.

Neither of these effects are necessarily additive because the average

spill reduction does not occur in the same year as droughts which would

cause delivery and drainflow reductions. However, the Project and the

wetlands are expected to receive a full supply of water in 9 out of 10

years. In full water years or in years with spills, there would be no

effect on headgate deliveries and drain flows.

The precise amount of additional water that may need to be acquired

cannot be determined at this time because the modeled effects described

above do not occur simultaneously, and there has not been enough time

to precisely assess the long-term average acreage produced by a given

water supply. The wetlands acreage will naturally vary because of wet

years and dry years. The TCID policy of basing a water right owner's

share of water in a drought year on both active and inactive water

rights will slightly augment the amount of water the FWS might

otherwise receive for wetlands. This is because a portion of the water

rights acquired by the FWS are inactive, and because they are not

transferring the full water duty. Also, the amount of water reaching

wetlands during a spill or precautionary release is variable. Most of

the water released does not reach the wetlands because of limitations

in the system to deliver water to the wetlands. The FWS is considering

improvements in the Project delivery capacity to the wetlands which

will help get more water to wetlands during spills. Under a separate

action, new criteria for the management of excess water from

precautionary releases and spills from Lahontan Reservoir are being

developed by the BOR. These criteria will help ensure that deliveries

of excess water to wetlands are given a high priority.

The effects of Adjusted OCAP were considered in the FWS Water

Rights Acquisition Final EIS (pages 4-145 to 4-147) and in its Record

of Decision on the water acquisition alternative. The FWS acknowledged

that it might have to acquire additional water rights to make up for

any reductions. It is expected to take the FWS some 10 to 20 years and

perhaps longer to acquire water needed to create, on average, 25,000

acres of wetlands. Over that time, in managing water to have an average

amount of wetlands, it will be very difficult to determine how much

additional water had to be acquired because of Adjusted OCAP. In its

Record of Decision, the FWS said it would periodically reassess

[[Page 66465]]

its water needs and its ability to obtain water from all the sources

under consideration.

The State of Nevada would experience similar effects on wetlands

water, proportional to the amount of water rights they own, however,

the FWS must acquire the necessary water rights to achieve the full

25,000 acres of wetlands.

The Adjusted OCAP does not address how to account for wetlands

water rights acquired above Lahontan Reservoir. This may be managed on

a case-by-case basis by the DOI.

9. Impacts on Groundwater: The Newlands Project is the principal

source of water for recharge to the shallow aquifers in the Lahontan

Valley and Fernley areas. Both Fallon and Fernley have municipal water

supplies that rely on groundwater. Elsewhere in the Lahontan Valley,

individual wells and community wells provide a domestic water supply.

Fourteen commenters have expressed concerns about the effects of

the Adjusted OCAP on groundwater. The source of concern is that

Adjusted OCAP will reduce the amount of water that moves through the

Truckee Canal and that is available for use in the Lahontan Valley. A

number of commenters said there would be significant reductions in the

recharge to the shallow aquifer resulting in reduced water for domestic

wells, for municipal and industrial use, and adverse effects on water

quality.

Several commenters were concerned about recharge to the basalt

aquifer from which the City of Fallon draws its municipal water supply,

and the secondary effects this might have on future water supplies and

economic development in the area. One commenter said the effects of

reduced drain flows posed qualitative risks for humans and the

environment and might have legal implications for the Carson River

above Lahontan Reservoir and in California.

Several commenters also were concerned about reduced Truckee Canal

flow affecting recharge to the aquifers in the Fernley area, and thus

affecting municipal water quantity and quality, and having socio-

economic and environmental impacts.

Response: The recharge of groundwater from irrigation in the

Newlands Project is incidental and there is no water right to require

recharge. Using data from the U.S. Geological Survey 1

(USGS), the FWS, in their water rights acquisition EIS,2

estimates the current average recharge in the Lahontan Valley from

irrigated agriculture to be about 123,300 acre-feet a year. At

completion of their water rights acquisitions, the FWS estimates that

recharge to groundwater will be about 93,000 acre-feet per year.

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

\1\ Mauer, D.K., A.K. Johnson, and A.H. Welch. 1994. ``Hydrology

and potential effects of changes in water use, Carson Desert

agricultural area, Churchill County, Nevada.'' U.S. Geological

Survey Open File Report 93-463.

\2\ U.S. Fish and Wildlife Service. 1996. ``Final environmental

impact statement: Water rights acquisition for Lahontan Valley

wetlands, Churchill County, Nevada.'' Portland, Oregon.

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

The modeled change in the quantity of water from the Truckee River

reaching Lahontan Reservoir from the Current Condition to the Final

Adjusted OCAP in Table A is 20,200 acre-feet (line 10). This difference

in inflow is offset because the lower targets result in 5,700 acre-feet

of less reservoir loss (line 12) from evaporation and seepage. The

exact amount of loss that might go to seepage is unclear, however,

seepage is thought to contribute only minor amounts of water to

groundwater recharge in Lahontan Valley (Mauer, et. al.). Of the

remaining reduction, part is accounted for by a difference of about

12,200 acre-feet per year in reduced spills (line 14), much of which is

surface flow that goes directly to wetlands and the Carson Sink and

does not recharge groundwater. The remaining portion of the reduction

is 2,550 acre-feet from water applied to irrigated lands (line 17). The

combination of spills and reduction to irrigation is 14,750 acre-feet

per year, resulting in a net annual recharge of about 108,550 acre-feet

at current rates, and about 78,250 acre-feet after wetland water

acquisitions. This recharge rate far exceeds the current water

consumption of about 13,000 acre-feet in the Lahontan Valley from

municipal and domestic well sources.

Adjusted OCAP will increase shortages during drought years as shown

in Table B. However, well monitoring in the Lahontan Valley by the USGS

during and following the last drought period shows that water levels in

the shallow aquifer drop during droughts but returned to pre-drought

levels during full water years.3 The Adjusted OCAP is

modeled to provide full water years in 9 out of 10 years. Generally,

any effect the Adjusted OCAP might have on groundwater levels in the

shallow aquifer during droughts would be eliminated by subsequent full

water years.

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

\3\ Personal communication: USGS, Water Resources Division,

Carson City, NV. 1997.

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

The basalt aquifer is already being mined by the municipal water

withdrawals for the City of Fallon, Naval Air Station, and Fallon

Tribe. The degree to which the basalt aquifer is recharged by the

shallow and intermediate aquifers is uncertain, but is the subject of a

study by the USGS being funded by the Navy and DOI. The study will help

define how the basalt aquifer is recharged and its potential for

recharge from surface water supplies. If the shallow aquifer is an

important recharge pathway for the basalt aquifer, then in 9 out of 10

years the Adjusted OCAP would have no effect on recharge to the basalt

aquifer. Even in drought years and with any additional water shortage

related to the Adjusted OCAP, the effect on groundwater levels in the

shallow aquifer is unknown and the degree to which this affects the

basalt aquifer likewise unknown, but is not expected to be large.

Lahontan Valley, formed under ancient Lake Lahontan and then from

the sediments borne by the meandering Carson River, has numerous

discontinuous, unconsolidated deposits of sands, silts, and clays that

caused great variability in local use and quality of groundwater. The

local variability and the small reduction in groundwater recharge

compared with natural events like droughts makes it impossible to

identify any effects on groundwater quality or drain water quality.

Reducing the total flow of water through the Truckee Canal to

Lahontan Reservoir will likely reduce seepage into groundwater in the

Fernley, Hazen, and Swingle Bench areas. The modeled change in canal

loss from the current condition to Adjusted OCAP is about 1,900 acre-

feet per year out of a current canal and irrigation recharge of more

than 41,000 acre-feet per year of recharge from Project irrigation. The

percent reduction in recharge that may affect a particular community

along the Truckee Canal is not known.

10. Effects on the Fallon Paiute-Shoshone Tribes: The Fallon

Paiute-Shoshone Tribe Reservation is located within the Project and has

Project water rights. One commenter asked why the protection of the

Tribe's trust interests had been dropped from the guiding principles in

Adjusted OCAP. Another commenter was concerned with effects of Adjusted

OCAP on the domestic water supply of the Tribe. Two commenters objected

to the Tribe receiving a full supply of water down to a 56 percent

water year and wanted to know why this didn't apply to other water

users in the Project.

Response: The reference to fulfilling Federal trust

responsibilities to the Fallon Tribe was inadvertently deleted from the

list of guiding principles that appeared in the proposed rule. The

[[Page 66466]]

Fallon Tribe is added to this principle in the preamble to this

Adjusted OCAP rule.

The domestic water supply on the Fallon Indian Reservation comes

from wells in the basalt aquifer. The discussion on the basalt aquifer

in 9. above applies here as well.

Regarding the allocation of water to the Tribe in a water short

year, the Tribe is treated by TCID exactly as everyone else is in the

Project. In water short years, TCID bases water allocations on each

water users total water right including active and inactive water

rights. The Fallon Tribe has 19,041.05 acre-feet of water rights

appurtenant to their Reservation. However, Pub. L. 101-618 limited the

Tribe to using only 10,587.5 acre-feet or approximately 56 percent of

that water right per year as part of a settlement with the Tribe.

Though the remaining 8,453.55 acre-feet of water rights are not active

because the Tribe cannot call for this water, the DOI pays operations

and maintenance fees to TCID on the full 19,041.05 acre-foot water

right. Therefore, in a 56 percent water year (or better), the Tribe

gets 56 percent of 19,041.05 acre-feet of water which equals their use

cap of 10,587.5 acre-feet.

III. Technical Issues

1. Rock Dam Ditch: The proposed Adjusted OCAP rule would have

changed how certain diversions to Rock Dam Ditch are counted. Rock Dam

Ditch may receive water directly from releases at Lahontan Reservoir,

or may get water directly from the Truckee Canal via a siphon pipe

under the stilling basin below Lahontan Dam. In the proposed rule,

diversions directly from the Truckee Canal would have counted against

the Truckee Division. Two commenters noted that this is incorrect and

all diversion to Rock Dam Ditch should be counted in the Carson

Division.

Response: The commenters are correct, as the water that reaches

Rock Dam Ditch would, in all cases, come from water in Lahontan

Reservoir or destined to arrive in Lahontan Reservoir. The language at

section 418.23 has been revised.

2. Credit and Debit Procedures: Three commenters object to how the

credit and debit incentive provisions preserved from the 1988 OCAP

provide for a full debit but a credit of only two-thirds of the actual

savings. They suggest the credit should be a full credit.

Response: These credit and debit provisions are in the 1988 OCAP as

a way to encourage the Project to meet or exceed the efficiency

targets. The debit is based fully on the excess water that was used in

the season. Using that excess water leaves Lahontan Reservoir with less

winter carryover storage, and allows for larger amounts of Truckee

River water to be diverted to make up for the ``hole'' that was left in

the Reservoir.

The credit provision allows the Project to take advantage of the

unused water any time it exceeds the efficiency targets. By definition,

this unused water is water that was not needed to serve Project water

rights. The Gesell decision in Tribe v. Morton specifies that only the

water needed to serve Project water rights can be diverted to the

Project from the Truckee River. Therefore, the Project earns a credit

for the portion of the Carson River water saved through greater

efficiency, presumed to be about two-thirds because about two-thirds of

the Project water comes from the Carson River. The remaining third

stays in Lahontan Reservoir to help reduce future diversions of Truckee

River water as a way of returning the Truckee River water that was not

needed when the credit was earned.

3. Forecasting: One commenter wanted clarification of how the

deliberative forecasting process will work and wanted to know if this

would avoid what happened in the 1993-1994 season when a full water

year was initially forecast and it turned out to be one of the driest

years on record.

Response: The 1988 OCAP required the BOR to rely solely on the NRCS

runoff forecasts for the Carson River. However, there are runoff

forecasts prepared by other Federal and State agencies that can be used

along with the NRCS forecast. The consultation process also allows the

BOR to take advantage of the years of experience available from local

authorities. This change was proposed in the Adjusted OCAP in response

to the situation that occurred in 1993-1994.

4. Water Rights Maps: Two commenters object to using the TCID's

water maps to determine eligible land irrigated with transferred water

rights, saying that the maps were never intended to be in OCAP. They

suggest that eligible lands should follow what is defined in contracts,

decrees, and State law.

Response: The BOR relies on the TCID to maintain and keep up-to-

date these water rights maps as the basis for determining which lands

are eligible to be irrigated. The land definitions in contracts and

decrees do not indicate whether a particular parcel has been irrigated

and is deemed to have a valid water right. Issues of eligible land and

valid transfers are before the Nevada State Engineer at this time.

5. Floods: One commenter said that before completing the rulemaking

a study needs to be done of whether OCAP contribute to flooding.

Response: The flooding on the Carson and Truckee Rivers in 1997 was

an excellent example of how OCAP do not affect flooding. Thanks to

Lahontan Dam and Reservoir, the communities below the dam were the only

areas that were not flooded in January 1997. The irrigation system

below the Dam, including the Carson River, can handle releases of about

2,000 cubic feet per second (cfs) without causing flooding. During the

flood, the inflow to Lahontan Reservoir was higher than 10,000 cfs at

times. That flow would have caused widespread flooding in the Lahontan

Valley if not for the storage available in the Reservoir. Without any

OCAP, much less space would have been available to capture and regulate

the flood waters because, prior to OCAP, the Project diverted water

from the Truckee River year-round. The Adjusted OCAP will further help

reduce flooding risks.

6. 1967 OCAP Language: One commenter suggested leaving in place the

Statement of Considerations and some objectives from the 1967 OCAP that

is currently in the Code of Federal Regulations at 43 CFR Part 418 and

is to be replaced by this rule. The commenter says the information is

important to understanding the need for OCAP.

Response: Much of the information contained in the 1967 OCAP

Statement of Considerations has been incorporated in the preamble to

this rulemaking and prior OCAPs. The 1967 OCAP is being replaced in its

entirety.

Administrative Matters

This rule has been made effective on publication to stop

ongoing diversions of water from the Truckee River to Lahontan

Reservoir. Under the current 1988 OCAP storage target provisions,

approximately 500 acre-feet per day are being diverted. The diversion

will continue to divert until the Adjusted OCAP and a new set of

Lahontan Reservoir storage targets go into effect. This water is not

needed to serve water rights in the Newlands Project at this time and

in accordance with the requirements of Tribe v. Morton is water that

must flow to Pyramid Lake.

This rule is not a significant rule under Executive Order

(E.O.) 12866 and does not require review by the OMB.

As required by the Regulatory Flexibility Act, it is

hereby certified that this rule will not have a significant impact on

small business entities.

[[Page 66467]]

This rule does not include any collections of information

requiring approval under the Paperwork Reduction Act.

The DOI has determined that the proposed rule is not a

major Federal action having significant effects on the human and

natural environment. An environmental assessment (EA) has been prepared

on the effects of the proposed rule.

The proposed rule has no substantial effects on Federalism

under the requirements of E.O. 12612.

The proposed rule does not have a significant impact on

family formulation, maintenance, and general well-being under the

requirements of E.O. 12606.

The proposed rule does not represent a government action

that would interfere with constitutionally protected property rights

and does not require a Takings Implications Assessment under E.O.

12630.

The proposed rule meets the applicable standards of civil

justice reform in accordance with E.O. 12988.

The proposed rule will not result in aggregate annual

expenditures in excess of $100 million by state, local, and tribal

governments, or the private sector and is, therefore, not subject to

the requirements of Section 202 of the Unfunded Mandates Reform Act of

1995 (Pub. L. 104-4).

The author of this rule is Jeffrey Zippin of the Department of the

Interior, Truckee-Carson Coordination Office.

The rule replaces the 1967 OCAP regulations at 43 CFR 418. That

regulation was superseded by subsequent U.S. District Court-approved

OCAP, including the 1988 OCAP, which are the basis for this rule.

List of Subjects in 43 CFR Part 418

Irrigation, Water supply, Newlands Irrigation Project; Operating

criteria and procedures.

Dated: December 11, 1997.

Patricia J. Beneke,

Assistant Secretary--Water and Science.

For the reasons set forth in the preamble, 43 CFR part 418 is

revised to read as follows:

PART 418--OPERATING CRITERIA AND PROCEDURES FOR THE NEWLANDS

RECLAMATION PROJECT, NEVADA

General Provisions

Sec.

418.1 Definitions.

418.2 How Project water may be used.

418.3 Effect of these regulations on water rights.

418.4 Prohibited deliveries.

418.5 Responsibility for violations.

418.6 Fallon Paiute-Shoshone Indian Reservation.

Conditions of Water Delivery

418.7 Who may receive irrigation deliveries.

418.8 Types of eligible land.

418.9 Reporting changes in eligible land.

418.10 Determining the amount of water duty to be paid.

418.11 Valid headgate deliveries.

418.12 Project efficiency.

418.13 Maximum allowable limits.

Monitoring Diversions

418.14 Recordkeeping requirements.

418.15 Operations monitoring.

Operations and Management

418.16 Using water for power generation.

418.17 Truckee and Carson River water use.

418.18 Diversions at Derby Dam.

418.19 Diversions from the Truckee River to the Truckee Division.

418.20 Diversions from the Truckee River to Lahontan Reservoir,

January through June.

418.21 Diversion of Truckee River water to Lahontan Reservoir, July

through December

418.22 Future adjustments to Lahontan Reservoir storage targets.

418.23 Diversion of Rock Dam Ditch water.

418.24 Precautionary draw down and spills from Lahontan Reservoir.

418.25 Water use for other than Newlands Project.

418.26 Charges for water use.

418.27 Distribution system operation.

Enforcement

418.28 Conditions of delivery.

418.29 Project management.

418.30 Provisions required in future contracts.

Water Management and Conservation

418.31 Conservation measures.

418.32 Cooperative programs.

Implementation

418.33 Purpose of the implementation strategy.

418.34 Valid headgate deliveries.

418.35 Efficiencies.

418.36 Incentives for additional long term conservation.

418.37 Disincentives for lower efficiency.

418.38 Maximum allowable diversion (MAD).

Appendix A to Part 418--Expected Project Conveyance Efficiency

Authority: 43 U.S.C. 391, et seq.; 43 U.S.C. 373; 43 U.S.C. 614,

et seq.; 104 Stat. 3289, Pub. L. 101-618.

General Provisions

Sec. 418.1 Definitions.

Bureau means the Bureau of Reclamation.

Decrees means the Alpine decree (United States v. Alpine Land and

Reservoir Co., 503 F. Supp. 877 (D. Nev. 1980)) and the Orr Ditch

decree (United States v. Orr Water Ditch Co., Equity No. A-3 (D. Nev.))

District means the Truckee-Carson Irrigation District or any other

approved Newlands Project operator.

Eligible land means Project land which at the time of delivery has

a valid water right and either:

(1) Is classified as irrigable under Bureau land classification

standards (Reclamation Instruction Series 510); or

(2) Has a paid out Project water right.

Full reservoir means 295,500 acre-feet in Lahontan Reservoir using

Truckee River diversions. The Reservoir can fill above 295,500 acre-

feet to 316,500 acre-feet with Carson River inflow and the use of flash

boards. Intentional storage on the flash boards will occur only after

the peak runoff.

Project means the Newlands Irrigation Project in western Nevada.

Sec. 418.2 How Project water may be used.

Project water may be delivered only to serve valid water rights

used for:

(a) Maintenance of wetlands and fish and wildlife including

endangered and threatened species;

(b) Recreation;

(c) Irrigation of eligible land; and

(d) Domestic and other uses of Project water as defined by the

decrees.

Sec. 418.3 Effect of these regulations on water rights.

This part governs water uses within existing rights. This part does

not in any way change, amend, modify, abandon, diminish, or extend

existing rights. Water rights transfers will be determined by the

Nevada State Engineer under the provisions of the Alpine decree.

Sec. 418.4 Prohibited deliveries.

The District must not deliver Project water or permit its use

except as provided in this part. No Project water will be released in

excess of the maximum allowable diversion or delivered to ineligible

lands. Delivery of water to land in excess of established water duties

is prohibited.

Sec. 418.5 Responsibility for violations.

Violations of the terms and provisions of this part must be

reported immediately to the Bureau. The District or individual water

users will be responsible for any shortages to water users occasioned

by waste or excess delivery or delivery of water to ineligible land as

provided in this part.

Sec. 418.6 Fallon Paiute-Shoshone Indian Reservation.

Nothing in this part affects:

(a) The authority of the Fallon Paiute-Shoshone Tribe to use water

on the

[[Page 66468]]

Tribe's reservation which was delivered to the Reservation in

accordance with this part; or

(b) The Secretary's trust responsibility with respect to the Fallon

Paiute-Shoshone Tribe.

Conditions of Water Delivery

Sec. 418.7 Who may receive irrigation deliveries.

Project irrigation water deliveries may be made only to eligible

land to be irrigated. The District must maintain records for each

individual water right holder indicating the number of eligible acres

irrigated and the amount of water ordered and delivered.

Sec. 418.8 Types of eligible land.

(a) Eligible land actually irrigated. During each year, the

District, in cooperation with the Bureau, must identify and report to

the Bureau the location and number of acres of eligible land irrigated

in the Project. Possible irrigation of ineligible land will also be

identified. The Bureau will review data to ensure compliance with this

part. The District, in cooperation with the Bureau, will be responsible

for field checking potential violations and immediately stopping

delivery of Project water to any ineligible land. The Bureau may also

audit as appropriate.

(b) Eligible land with transferred water rights. The District water

rights maps dated August 1981 through January 1983 will be used as the

basis for determining which lands have a valid water right. The

original maps will be maintained by the District. The District must

provide copies of the maps to the Bureau. The District will alter the

maps and the copies to account for water right transfers as the

transfers are approved by the Nevada State Engineer.

(c) Other eligible land. The Bureau will also identify eligible

land that was not irrigated during the prior irrigation season.

Sec. 418.9 Reporting changes in eligible land.

(a) Eligible land anticipated to be irrigated. (1) Anticipated

changes in irrigated eligible land from the prior year will be reported

to the Bureau's Lahontan Area Office by the District by March 1 of each

year. The District will adjust the acreage of the eligible land

anticipated to be irrigated to correct for inaccuracies, water right

transfers that have been finally approved by the Nevada State Engineer,

and any other action that affects the number of eligible acres, acres

anticipated to be irrigated, or water deliveries.

(2) As the adjustments are made, the District will provide updated

information to the Bureau for review and approval. The District must

adjust anticipated water allocations to individual water users

accordingly. The allocations will at all times be based on a maximum

annual entitlement of 3.5 acre-feet (AF) per acre of bottom land, 4.5

AF per acre of bench land, and 1.5 AF per acre of pasture land that is

anticipated to be irrigat

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