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AWBA NEWS
Summary
of AWBA Meeting
The Arizona Water Banking Authority Commission met in conjunction with a
public meeting of the Arizona Department of Water Resources on January 13, 2000.
I. Welcome/Opening Remarks
Tim Henley, Manager of the AWBA, introduced Michael Pearce, Chief Counsel of the Arizona Department of Water Resources. This meeting was a meeting called by the ADWR, however, it was publicly noticed as an AWBA meeting due to the quorum of three Authority members: Rita Pearson, William Chase and Tom Griffin.
II. Overview of Legal Issues
Mr. Pearce stated that the meeting would focus on issues that should be considered in his preparation of a final legal opinion regarding whether the statutory requirements of A.R.S. § 45-2427 (C)(2) are met by 43 CFR Part 414 (Rule for the Offstream Storage of Colorado River Water and Development and Release of Intentionally Created Unused Apportionment in the Lower Division States).
In general, the statute requires that the AWBA will not enter into interstate storage agreements until:
1. Regulations are in effect.
2. Those regulations facilitate and allow the contractual distribution of unused entitlement under article II(B)(6) of the decree in AZ vs. CA.
3. Those regulations adequately protect Arizona’s rights to Colorado river water as those rights are defined by the decree.
The following questions were considered practical and should be looked into:
1. Do the rules purport to increase the Secretary’s authorization to distribute water under article II(B)(6).
2. Do the rules allow individual parties to attempt to manipulate II(B)(6) to transfer water in a non-banking context.
3. Do the rules adequately recognize the principle of the 1964 decree allocated water to the individual states of the lower basin.
4. Does the interbanking arrangements, under the rule, draw any harmful distinction between AWBA’s intrastate operation and its prospective interstate operations.
Mr. Pearce stated that there were other concerns regarding the rule that were addressed, at least in part, in the final rule. The critical areas were:
1. Definition of state authorized entity and requirement that agreements can only be made between state authorized entities.
2. Creation of intentionally created unused apportionment (ICUA).
3. Proposed ability to release water under II(B)(6) to a certain specified entity within the state.
4. Provisions for anticipatory release of ICUA.
5. Requirement for a contractual entitlement by the storing entity (in this case, the AWBA).
These issues will be addressed in Mr. Pearce’s final legal opinion to the Director of the ADWR.
It was Mr. Pearce’s conclusion that all critical issues brought forth to the Secretary of the Interior had been addressed to his satisfaction.
III. Public Discussion and Comment
Four members of the public provided comment regarding the adequacy of the rule. Mr. Henley discussed the process which will follow if a positive decision is made by the Director of ADWR. He also noted that there is further protection as the AWBA has the right to defer negotiation on contracts which do not represent reasonable business opportunities.
The meeting concluded at 1:50 p.m.
