[Federal Register Volume 68, Number 117 (Wednesday, June 18, 2003)]
[Notices]
[Pages 36578-36579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-15280]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
Central Arizona Project, Arizona; Water Allocations
AGENCY: Office of the Secretary, Interior.
ACTION: Notice of final decision to modify the Secretary of the
Interior's record of decision.
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SUMMARY: The Department hereby issues notice of its final decision to
modify the 1983 Central Arizona Project (CAP) Water Allocation Decision
to delete the mandatory effluent pooling provision. As supported by
public comment, we now view that provision as an impediment to effluent
exchanges and effective water management in central Arizona. The
decision that we are publishing in this notice eliminates the
requirement for a mandatory effluent pooling provision in CAP water
service subcontracts. We will grant the requests by the cities of
Chandler and Mesa to amend their water service subcontracts to remove
the mandatory effluent pooling provision and we will delete the
mandatory effluent pooling provision in other CAP municipal and
industrial water service subcontracts upon request.
DATES: This final decision is effective June 18, 2003 and amends the
previous allocation decision published by Secretary Watt on March 24,
1983 (48 FR 12446).
ADDRESSES: To receive a copy of the Final Environmental Assessment and
responses thereto, contact John McGlothen, NEPA Specialist, Phoenix
Area Office, Bureau of Reclamation, P.O. Box 81169, Phoenix, Arizona
85069, telephone: 602-216-3866.
FOR FURTHER INFORMATION CONTACT: Paul Nelson, Contracts and Repayment
Specialist, Phoenix Area Office, Bureau of Reclamation, telephone:
(602) 216-3878.
SUPPLEMENTARY INFORMATION:
I. Previous Notices Related to CAP Water
II. Background
III. Rationale for Final Decision
IV. Comments on the Proposed Modification and Responses
V. Compliance with NEPA
I. Previous Notices Related to CAP Water
Previous notices related to CAP water were published in the Federal
Register as 37 FR 28082, Dec. 20, 1972; 40 FR 17297, Apr. 18, 1975; 41
FR 45883, Oct. 18, 1976; 45 FR 52938, Aug. 8, 1980; 45 FR 81265, Dec.
10, 1980; 48 FR 12446, Mar. 24, 1983; 56 FR 29704, Jun. 28, 1991; 57 FR
4470, Feb. 5, 1992; and 57 FR 48388, Oct. 23, 1992. The above listed
notices and decisions were made pursuant to the authority vested in the
Secretary by the Reclamation Act of 1902 as amended and supplemented
(32 Stat. 388, 43 U.S.C. 391), the Boulder Canyon Project Act of
December 21, 1928 (45 Stat. 1057), the Colorado River Basin Project Act
of September 30, 1968 (82 Stat. 885, 43 U.S.C. 1501) and in recognition
of the Secretary's trust responsibility to Indian tribes.
II. Background
Following the 1983 CAP Water Allocation Decision, the Bureau of
Reclamation, the Central Arizona Water Conservation District (CAWCD),
and each of the non-Indian CAP water allottees desiring CAP water
entered into three-party water service subcontracts providing for the
delivery of CAP water. In order to ensure implementation of the
mandatory effluent pooling provision, municipal and industrial (M&I)
water service subcontractors who choose to circumvent the effluent
pooling provision and directly exchange their effluent with Indian
tribes are subject to a reduction in their entitlement to CAP water
under their subcontracts by the amount of CAP water received from the
effluent exchange.
The Department indicated in the 1983 CAP Water Allocation Decision
that CAP M&I water allocations could be made more firm by execution of
feasible non-potable effluent exchanges with Indian tribes. The 1983
CAP Water Allocation Decision also implemented a pooling provision
whereby all M&I water service subcontractors share in the benefits of
effluent exchanges. In a time of shortage of CAP water under the
effluent pooling provision, the additional CAP water made available as
a result of any effluent exchanges with Indian tribes would be shared
by all M&I subcontractors, thereby reducing the amount of shortage for
each subcontractor. The pooling provision was included in the CAP M&I
water service subcontracts.
The 1983 CAP Water Allocation Decision also provided that the
Department could require Indian tribes located in close proximity to
metropolitan areas to take delivery of effluent in lieu of CAP water.
This requirement was eliminated by a Secretarial decision published in
the Federal Register on October 23, 1992, so that any effluent
exchanges involving Indian tribes would occur on a voluntary basis.
The major cities in Maricopa County, which are the sources of most
of the exchangeable effluent, prefer to exchange effluent on their own,
incur all related treatment and transportation expenses, and receive
any benefits from the exchange.
The notice of proposed modification of the Secretary of the
Interior's Record of Decision to remove the mandatory effluent pooling
provision and request for comments was published in the Federal
Register (67 FR 38514, June 4, 2002). Implementation of the proposed
modification was the only option presented.
III. Rationale for Final Decision
The Department favors elimination of the mandatory effluent pooling
provision from the 1983 CAP Water Allocation Decision for the following
reasons:
(1) In response to public comments submitted by the City of Phoenix
in 1992 concerning the mandatory effluent pooling provision, the
Department committed to re-evaluate this provision at a later date
after consultation with the Arizona Department of Water Resources
(ADWR) (see 57 FR 48389, Oct. 23, 1992). In part, the City of Phoenix
stated ``* * * The City of Phoenix agrees with the reasons for deleting
the mandatory substitute water provision from the Indian CAP Contracts
and believes that it is equally important to remove the provision from
CAP M&I subcontracts that would penalize a subcontractor for entering
into a direct effluent exchange with an Indian Community for CAP
water.'' The Department acknowledged the City of Phoenix's concerns
that the provisions of the effluent exchange article in the CAP M&I
water service subcontracts may no longer be critical to the management
of water supplies in central Arizona.
(2) The mandatory effluent pooling provision removes any incentive
for a municipality to exchange effluent with an Indian tribe. The
Department believes that effluent producing entities, Indian tribes,
the State of Arizona, and other local organizations should be free to
pursue local water management decisions that are in the best interest
of the local economies, and that they should not be constrained in such
water management decisions by the mandatory effluent pooling provision.
(3) ADWR now supports removing the mandatory effluent pooling
provision from the 1983 CAP Water Allocation Decision and the CAP M&I
water service subcontracts.
(4) CAWCD, as a party to the CAP M&I water service subcontracts,
does not object to deletion of the mandatory
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effluent pooling provision from the subcontracts.
(5) The Department is aware of two pending effluent exchange
agreements that require Departmental approval. The cities of Chandler
and Mesa each have a proposed effluent exchange agreement with the Gila
River Indian Community (GRIC). The benefits resulting from the proposed
exchanges to the cities and GRIC will not occur unless and until the
mandatory effluent provision is removed from the cities' CAP water
service subcontracts.
(6) The Department received four responses to the proposed action
during the Federal Register notice public comment period. Each
respondent provided rationale and recommendations that support the
option of modifying the Secretary's Record of Decision to remove the
mandatory effluent pooling provision. The Department received no
objections to this proposed action.
IV. Comments on the Proposed Modification and Responses
(1) Salt River Project, July 5, 2002
Comment 1-1: ``SRP agrees with the Department's determination that
the mandatory effluent pooling provision is an impediment to effluent
exchanges and effective water management in central Arizona. For
example, without the modification the cities of Chandler and Mesa will
not be able to undertake effluent-CAP water exchanges pursuant to the
Reclaimed Water Exchange Agreement portion of the Gila River Indian
Community Settlement.''
Response 1-1: SRP's expression of support for the Department's
proposal is noted.
(2) City of Phoenix, July 5, 2002
Comment 1-2: ``The City of Phoenix has long supported the removal
of that sentence. In 1982 the City sent two letters to then Secretary
of the Interior James Watt asking that the mandatory effluent exchange
pooling concept be eliminated from the Secretary's proposed allocation
decision. We maintained then that the inclusion of such a provision
would serve to inhibit future exchanges which would otherwise be
mutually beneficial to the exchanging parties * * *. We are pleased
that you are now proposing to eliminate the mandatory effluent exchange
pooling requirement from both the Secretary's record of decision and
also from the CAP M&I subcontracts.''
Response 1-2: The City of Phoenix position has remained consistent
throughout the period following the Secretary's decision. It has been
instrumental in spurring the Department's investigation of the issues
arising from the mandatory effluent exchange provision.
(3) City of Chandler, July 3, 2002
Comment 1-3: ``The City of Chandler, Arizona submits this letter in
support of the proposed modification of the Secretary of Interior's
March, 1983 Record of Decision, which deletes the mandatory effluent
pooling provision from Central Arizona Project (``CAP'') water service
contracts. This provision, and the related M&I subcontracts' effluent
exchanges restriction, prevent municipalities from exchanging effluent
for CAP water held by Indian communities. The proposed modification
encourages better water management, and will allow for a necessary
effluent exchange as part of the Gila River Indian Community water
rights settlement.''
Response 1-3: The Department acknowledges the City of Chandler's
statements of support for the Secretary's proposed modification of the
1983 Record of Decision. It also notes that Chandler's position
supports and is consistent with its formal request for an amendment of
its CAP water service contract to remove the mandatory effluent pooling
provision, which is pending.
(4) City of Mesa, June 17, 2002
Comment 1-4: ``The City of Mesa fully supports the Department's
proposal to modify the 1983 Central Arizona Project (CAP) Water
Allocation Decision to delete the mandatory effluent pooling provision.
We agree with Department's determination that the mandatory effluent
pooling provision is an impediment to effluent exchanges and effective
water management in central Arizona. * * * The City of Mesa intends to
enter into an effluent exchange agreement with the Gila River Indian
Community (GRIC) through the proposed GRIC water rights settlement. The
benefits resulting from the proposed exchanges to Mesa and GRIC will
not occur unless and until the mandatory effluent provision is removed
from Mesa's CAP water service subcontracts * * * We urge the Secretary
to amend Mesa's CAP water service subcontracts to delete the mandatory
effluent pooling provision.''
Response 1-4: The Department acknowledges and accepts the City of
Mesa's statements of support for the Secretary's proposed modification
of the 1983 Record of Decision. Its comments are consistent with its
formal request for an amendment of its CAP water service contract to
remove the mandatory effluent pooling provision, which is pending.
V. Compliance With NEPA
The Department has completed a Final Environmental Assessment (EA)
on the impact of modifying the 1983 CAP Water Allocation Decision to
delete the mandatory effluent pooling provision. The Final EA resulted
in a ``Finding of No Significant Impact'' (FONSI) to the human
environment and was signed August 5, 2002 by Reclamation's Phoenix Area
Office Manager, Phoenix, Arizona.
Final Decision
The following sentence is hereby deleted from the 1983 CAP Water
Allocation Decision (March 24, 1983, 48 FR 12447): ``This allocation is
subject to adoption of a pooling concept whereby all M&I allottees
share in the benefits of effluent exchanges.''
Dated: May 14, 2003.
Gale A. Norton,
Secretary of the Interior.
[FR Doc. 03-15280 Filed 6-17-03; 8:45 am]
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