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Notice

Rate Adjustments for Indian Irrigation Projects

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Information about this document as published in the Federal Register.

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Start Preamble

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice of rate adjustments.

SUMMARY:

The Bureau of Indian Affairs (BIA) owns or has an interest in irrigation projects and facilities located on various Indian reservations throughout the United States. We are authorized to establish rates to recover the costs to administer, operate, maintain, and rehabilitate those facilities. We are notifying you that we have adjusted the irrigation assessment rates at several of our irrigation projects and facilities for operation and maintenance.

DATES:

Effective Date: The irrigation assessment rates shown in the tables are effective on January 1, 2008.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

For details about a particular BIA irrigation project or facility, please use the tables in SUPPLEMENTARY INFORMATION section to contact the regional or local office where the project or facility is located.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

A Notice of Proposed Rate Adjustment was published in the Federal Register on February 8, 2008 (73 FR 7583) to adjust the irrigation rates at several BIA irrigation projects and facilities. The public and interested parties were provided an opportunity to submit written comments during the 60-day period that ended April 8, 2008.

Did the BIA Defer Any Proposed Rate Increases?

For the Fort Belknap Indian Irrigation Project, the BIA, in consultation with the Gros Ventre and Assiniboine Tribes and Project water users, has deferred the rate increase for 2008.Start Printed Page 32044

Did the BIA Receive Any Comments on the Proposed Irrigation Assessment Rate Adjustments?

Written comments were received for the proposed rate adjustments for the Blackfeet Irrigation Project, Fort Belknap Irrigation Project, and the Wind River Irrigation Project.

What Issues Were of Concern by the Commenters?

Individuals and entities commenting on the proposed rates for 2008 were concerned with one or more of the following issues: (1) How funds are expended for operation and maintenance (O&M) costs; (2) how rate increases are justified and communicated to water users; (3) how rate increases impact the local agricultural economy and individual land owners; (4) the role of the BIA's Central Office in managing projects and the burden of federal regulations; (4) land owners without access to project water being assessed irrigation charges; (5) the BIA's non-delivery of water to water users with outstanding O&M charges; and (6) the BIA's trust responsibility for projects. The following comment is specific to the Wind River Irrigation Project: users assert that O&M rates should not be adjusted until a study of the project's irrigable and assessable acreage is completed.

How Does the Bia Respond to Concerns Regarding How Funds Are Expended for O&M Costs?

The BIA considers the following expenses when determining an irrigation project's budget: project personnel costs; materials and supplies; vehicle and equipment repairs; equipment; capitalization expenses; acquisition expenses; rehabilitation costs; maintenance of a reserve fund for contingencies or emergencies; and other expenses that we determine are necessary to properly operate and maintain an irrigation project.

One common misconception water users have is that all salary costs are administrative. Only a portion of each project's budget is for administrative costs. The administrative costs for a project includes office costs, office staff (accounting and clerical), and a portion of the project manager's salary. Non-administrative costs are the cost to operate and maintain the project or facility. Operation and maintenance workers perform operation and maintenance work, thus their salaries are considered operation and maintenance costs, not administrative costs. All projects need essential personnel to operate and maintain the project, including a project manager, accounting staff, and irrigation system operators (ditchriders).

How Does the Bia Respond to Concerns Regarding the Justification for and Communication of Rate Increases to Land Owners?

BIA policy states that irrigation project managers are required to meet, at a minimum, twice annually with their water users—once at the end of the irrigation season and once before the next season. For projects that operate year-round, project managers will determine the best schedule for holding these meetings. At these meetings, irrigation staff will provide water users with information regarding project operations—including budget plans and actual annual expenditures—and obtain feedback and input from water users.

Individuals concerned with the BIA's management of its projects and its O&M rates may review the BIA's records at their convenience. The BIA's project budget estimates and expense records are available for review by stakeholders or interested parties. Stakeholders (water users, land owners, or tribes) can review these records during normal business hours at the individual agency office. Alternatively, stakeholders or interested parties may request project records under the Freedom of Information Act (FOIA). The BIA will provide copies of such records to the requesting party in accordance with FOIA.

To review or obtain copies of project records, stakeholders and interested parties should contact the BIA representative at the specific project or facility serving them, using the tables in the SUPPLEMENTARY INFORMATION section below.

How does the BIA respond to concerns regarding the impact of irrigation assessment rate increases on local agricultural economies and individual land owners?

The BIA's projects are important economic contributors to the local communities they serve. These projects contribute millions of dollars in crop value annually. Historically, the BIA tempered irrigation rate increases to demonstrate sensitivity to the economic impact on water users. This past practice resulted in a rate deficiency at some irrigation projects. The BIA does not have discretionary funds to subsidize irrigation projects. Funding to operate and maintain these projects needs to come from revenues from the water users served by those projects.

Over the past several years, the BIA's irrigation program has been the subject of several Office of Inspector General (OIG) and GAO audits. In the most recent OIG audit, No. 96-I-641, March 1996, the OIG concluded: “Operation and maintenance revenues were insufficient to maintain the projects, and some projects had deteriorated to the extent that their continued capability to deliver water was in doubt. This occurred because operation and maintenance rates were not based on the full cost of delivering irrigation water, including the costs of systematically rehabilitating and replacing project facilities and equipment, and because project personnel did not seek regular rate increases to cover the full cost of project operation.” A previous OIG audit performed on one of the BIA's largest irrigation projects, the Wapato Indian Irrigation Project, No. 95-I-1402, September 1995, reached the same conclusion.

To address the issues noted in these audits, the BIA must systematically review and evaluate irrigation assessment rates and adjust them, when necessary, to reflect the full costs to properly operate and perform all appropriate maintenance on the irrigation project or facility infrastructure to ensure safe and reliable operation. If this review and adjustment is not accomplished, a rate deficiency can accumulate. Rate deficiencies force the BIA to raise irrigation assessment rates in larger increments over shorter periods of time than would have been otherwise necessary.

How does the BIA respond to concerns regarding the role of the BIA's Central Office in managing projects and the costs associated with complying with federal regulations?

The BIA must follow Federal regulations as it operates and maintains the projects under its ownership or control. Specifically, the BIA must follow Federal guidelines in hiring and compensating personnel to operate and manage irrigation projects. The BIA sets rates in accordance with the criteria identified above. The BIA Central Office does not unilaterally impose rate increases on projects. The BIA is reviewing various options for cost savings, including turning over projects or sections of projects to water users and sharing personnel between or among projects.Start Printed Page 32045

How does the BIA respond to concerns regarding land owners without access to project water being assessed irrigation charges?

As mentioned above, OIG and GAO performed audits on the BIA irrigation program and noted that the BIA has not set irrigation assessment rates at levels high enough to operate and maintain its irrigation projects. The BIA has been increasing rates to address this concern. Because rates were low for many years, numerous maintenance items were deferred. At some projects, this deferral resulted in the BIA's inability to deliver water to all users. To assist water users in this regard, the BIA updated its Irrigation Operations and Maintenance regulations, 25 CFR part 171, to allow a water user to apply for a waiver of irrigation assessment charges if the BIA is incapable of delivering water to that water user. To apply for this waiver, a water user must meet with local project staff.

How does the BIA respond to concerns regarding the BIA's refusal to deliver water to water users with outstanding O&M charges?

The BIA's irrigation regulations, 25 CFR part 171, require the BIA to withhold irrigation services from users who have delinquent debt with the BIA, including balances that have been referred to the United States Treasury.

How does the BIA respond to comments regarding the BIA's trust responsibility in relation to projects?

The BIA disagrees that increasing O&M rates for projects violates any trust duty. The BIA has no trust obligation to operate and maintain irrigation projects. See, e.g., Grey v. United States, 21 Cl. Ct. 285 (1990), aff'd, 935 F.2d 281 (Fed. Cir. 1991), cert. denied, 502 U.S. 1057 (1992). The BIA, pursuant to 25 U.S.C. section 381 et seq. and 25 CFR Part 171, has the responsibility to administer constructed projects, set rates, collect assessments, and make decisions regarding water delivery. The BIA must collect O&M assessments to operate and maintain the irrigation infrastructure on its projects. Over time, the costs of operating and maintaining these projects increases, and rates must be adjusted accordingly to enable the BIA to continue to provide irrigation services. Raising rates to reflect the full costs associated with operating and maintaining projects is essential because O&M rates are the only regular source of funding for the BIA's irrigation projects.

How does the BIA response to the issue raised by users of the Wind River Irrigation Project, that O&M rates should not be adjusted until the re-designation study of the project's irrigable and assessable acreage is completed?

The BIA levies assessments on lands to which its project is authorized and capable of delivering water. Thus, a parcel's irrigation history is immaterial to whether it is subject to an irrigation assessment. The Secretary may deem lands within a project non-assessable, in which case those lands may be removed from the project—permanently or temporarily—with the landowner's consent. 25 U.S.C. sections 389a, 389b. The redesignation study will not determine what O&M assessment the lands could support. The study only determines if the lands are irrigable and if they should remain assessable. The overall O&M assessment for a project is based on its total assessable acres. If the redeisgnation study recommends removing assessable acres from the project, the O&M assessment rate would increase significantly for those acres remaining in the project. Until such time as the land re-designation study referenced by this commenter is finished, individual users may apply for an annual assessment waiver under 25 CFR part 171.

Did the BIA receive comments on any proposed changes other than rate adjustments?

No.

Does this notice affect me?

This notice affects you if you own or lease land within the assessable acreage of one of our irrigation projects, or you have a carriage agreement with one of our irrigation projects.

Where can I get information on the regulatory and legal citations in this notice?

You can contact the appropriate office(s) stated in the tables for the irrigation project that serves you, or you can use the Internet site for the Government Printing Office at http://www.gpo.gov.

What authorizes you to issue this notice?

Our authority to issue this notice is vested in the Secretary of the Interior by 5 U.S.C. section 301 and the Act of August 14, 1914 (38 Stat. 583; 25 U.S.C. 385). The Secretary has in turn delegated this authority to the Assistant Secretary—Indian Affairs under Part 209, Chapter 8.1A, of the Department of the Interior's Departmental Manual.

Whom can I contact for further information?

The following tables are the regional and project/agency contacts for our irrigation projects and facilities.

Project nameProject/agency contacts
Northwest Region Contacts
Stanley Speaks, Regional Director, Bureau of Indian Affairs, Northwest Regional Office, 911 N.E. 11th Avenue, Portland, OR 97232-4169, Telephone: (503) 231-6702.
Flathead Irrigation ProjectChuck Courville, Acting Superintendent, Flathead Agency Irrigation Division, P.O. Box 40, Pablo, MT 59855-0040, Telephone: (406) 675-2700.
Fort Hall Irrigation ProjectEric J. LaPointe, Superintendent, Alan Oliver, Supervisory General Engineer, Fort Hall Agency, P.O. Box 220, Fort Hall, ID 83203-0220, Telephone: (208) 238-2301.
Wapato Irrigation ProjectPierce Harrison, Project Administrator, Wapato Irrigation Project, P.O. Box 220, Wapato, WA 98951-0220, Telephone: (509) 877-3155.
Rocky Mountain Region Contacts
Ed Parisian, Regional Director, Bureau of Indian Affairs, Rocky Mountain Regional Office, 316 North 26th Street, Billings, MT 59101, Telephone: (406) 247-7943.
Blackfeet Irrigation ProjectStephen Pollock, Superintendent, Ted Hall, Irrigation Project Manager, Box 880, Browning, MT 59417, Telephones: (406) 338-7544, Superintendent, (406) 338-7519, Irrigation Project Manager.
Crow Irrigation ProjectGeorge Gover, Superintendent, Karl Helvik, Irrigation Project Manager, P.O. Box 69, Crow Agency, MT 59022, Telephones: (406) 638-2672, Superintendent, (406) 638-2863, Irrigation Project Manager.
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Fort Belknap Irrigation ProjectJudy Gray, Superintendent, Ralph Leo, Irrigation Project Manager, R.R. 1, Box 980, Harlem, MT 59526, Telephones: (406) 353-2901, Superintendent, (406) 353-2905, Irrigation Project Manager.
Fort Peck Irrigation ProjectFlorence White Eagle, Superintendent, P.O. Box 637, Poplar, MT 59255, Richard Kurtz, Irrigation Manager, 602 6th Avenue North, Wolf Point, MT 59201, Telephones: (406) 768-5312, Superintendent, (406) 653-1752, Irrigation Manager.
Wind River Irrigation ProjectEd Lone Fight, Superintendent, Ray Nation, Acting Irrigation Project Manager, P.O. Box 158, Fort Washakie, WY 82514, Telephones: (307) 332-7810, Superintendent, (307) 332-2596, Irrigation Project Manager.
Southwest Region Contacts
Larry Morrin, Regional Director, Bureau of Indian Affairs, Southwest Regional Office, 1001 Indian School Road, Albuquerque, NM 87104, Telephone: (505) 563-3100.
Pine River Irrigation ProjectRoss P. Denny, Superintendent, John Formea, Irrigation Engineer, P.O. Box 315, Ignacio, CO 81137-0315, Telephones: (970) 563-4511, Superintendent, (970) 563-9484, Irrigation Engineer.
Western Region Contacts
Allen Anspach, Regional Director, Bureau of Indian Affairs, Western Regional Office, Two Arizona Center, 400 N. 5th Street, 12th floor, Phoenix, AZ 85004, Telephone: (602) 379-6600.
Colorado River Irrigation ProjectPerry Baker, Superintendent, Ted Henry, Irrigation Project Manager, R.R. 1, Box 9-C, Parker, AZ 85344, Telephone: (928) 669-7111.
Duck Valley Irrigation ProjectJoseph McDade, Superintendent, 1555 Shoshone Circle, Elko, NV 89801, Telephone: (775) 738-0569.
Fort Yuma Irrigation ProjectRaymond Fry, Superintendent, P.O. Box 11000, Yuma, AZ 85366, Telephone: (520) 782-1202.
San Carlos Irrigation Project Joint WorksCarl Christensen, Supervisory General Engineer, P.O. Box 250, Coolidge, AZ 85228, Telephone: (520) 723-6216.
San Carlos Irrigation Project Indian WorksJoe Revak, Supervisory General Engineer, Pima Agency, Land Operations, Box 8, Sacaton, AZ 85247, Telephone: (520) 562-3372.
Uintah Irrigation ProjectLynn Hansen, Irrigation Manager, P.O. Box 130, Fort Duchesne, UT 84026, Telephone: (435) 722-4341.
Walker River Irrigation ProjectAthena Brown, Superintendent, 311 E. Washington Street, Carson City, NV 89701, Telephone: (775) 887-3500.

What irrigation assessments or charges are adjusted by this notice?

The rate table below contains the current rates for all of our irrigation projects where we recover our costs for operation and maintenance. The table also contains the final rates for the 2008 season and subsequent years where applicable. An asterisk immediately following the name of the project notes that the BIA adjusted that project's rates for 2009.

Northwest Region Rate Table

Project nameRate categoryFinal 2007 rateFinal 2008 rateFinal 2009 rate
Flathead Irrigation ProjectBasic per acre—A$23.45$23.45$23.45
Basic per acre—B10.7510.7510.75
Minimum Charge per tract65.0065.0065.00
Fort Hall Irrigation Project*Basic per acre27.0031.001
Minimum Charge per tract25.0027.00
Fort Hall Irrigation Project—Minor Units*Basic per acre17.0021.00
Minimum Charge per tract25.0027.00
Fort Hall Irrigation Project—Michaud*Basic per acre35.7539.75
Pressure per acre50.0055.50
Minimum Charge per tract25.0027.00
Wapato Irrigation Project—Toppenish/Simcoe Units*Billing Charge per Tract5.005.005.00
Minimum Charge for farm unit/land tracts up to one acre14.0014.0015.00
Farm unit/land tracts over one acre—per acre14.0014.0015.00
Wapato Irrigation Project—Ahtanum Units*Billing Charge per Tract5.005.005.00
Minimum Charge for farm unit/land tracts up to one acre14.0014.0015.00
Farm unit/land tracts over one acre—per acre14.0014.0015.00
Wapato Irrigation Project—Satus Unit*Billing Charge per Tract5.005.005.00
Minimum Charge for farm unit/land tracts up to one acre55.0055.0058.00
“A” farm unit/land tracts over one acre—per acre55.0055.0058.00
Additional Works farm unit/land tracts over one acre—per acre60.0060.0063.00
“B” farm unit/land tracts over one acre—per acre65.0065.0068.00
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Water Rental Agreement Lands—per acre67.0067.0070.00
1 To be determined.
Project nameRate categoryFinal 2007 rateFinal 2008 rate
Rocky Mountain Region Rate Table
Blackfeet Irrigation Project*Basic-per acre$15.50$17.00
Crow Irrigation Project—Willow* Creek O&M (includes Agency, Lodge Grass #1, Lodge Grass #2, Reno, Upper Little Horn, and Forty Mile Units)Basic-per acre19.3020.80
Crow Irrigation Project—All* Others (includes Bighorn, Soap Creek, and Pryor Units)Basic-per acre19.0020.50
Crow Irrigation Two Leggins Drainage DistrictBasic-per acre2.002.00
Fort Belknap Irrigation ProjectBasic-per acre13.8813.88
Fort Peck Irrigation Project*Basic-per acre20.0022.00
Wind River Irrigation Project*Basic-per acre15.0016.00
Wind River Irrigation Project—LeClair DistrictBasic-per acre17.0017.00
Southwest Region Rate Table
Pine River Irrigation ProjectMinimum Charge per tract50.0050.00
Basic-per acre15.0015.00
Project nameRate categoryFinal 2007 rateFinal 2008 rateFinal 2009 rate
Colorado River Irrigation ProjectBasic per acre up to 5.75 acre-feet$47.00$47.00To be determined.
Excess Water per acre-foot over 5.75 acre-feet17.0017.00
Duck Valley Irrigation ProjectBasic-per acre5.305.30
Fort Yuma Irrigation Project*Basic-per acre up to 5.0 acre-feet72.0077.00
(See Note #1)Excess Water per acre-foot over 5.0 acre-feet10.5014.00
Basic-per acre up to 2.0 acre-feet (Ranch 5)28.00
San Carlos Irrigation Project (Joint Works) (See Note #2)Basic-per acre30.0021.0021.00
San Carlos Irrigation Project* (Indian Works)Basic-per acre77.0057.00To be determined.
Uintah Irrigation Project*Basic-per acre12.0012.50
Minimum Bill25.0025.00
Walker River Irrigation Project* (See Note #3)Indian per acre10.0013.0016.00
non-Indian per acre16.0016.0016.00
* Irrigation projects where rates were adjusted.
Note #1—The O&M rate for Fort Yuma Irrigation Project has two components. The first component is the O&M rate established by the Bureau of Reclamation (BOR), the owner and operator of the Project. The BOR rate for 2008 is $70.00/acre. The second component is for the O&M rate established by the Bureau of Indian Affairs (BIA) to cover administrative costs including billing and collections for the Project. The 2008 BIA rate remains unchanged at $7.00/acre. The 2008 BOR rate for “Ranch 5” is $28.00/acre. In 2008, the BIA is not charging administrative costs on “Ranch 5” acreage. For 2009, the BIA will be proposing the addition of the $7.00 BIA administrative fee to the “Ranch 5” acreage.
Note #2—The 2008 and 2009 rate was established by final notice published in t he Federal Register on April 20, 2007 (Vol. 72, No. 76, page 19954). The 2010 rate is to be determined. The Arizona Water Settlement Act is expected to be effective December 31, 2007, and this circumstance may affect what the O&M rate should be for the SCIPJW in 2010.
Note #3—The 2008 and 2009 irrigation rates are established through this notice.

Consultation and Coordination With Tribal Governments (Executive Order 13175)

To fulfill its consultation responsibility to tribes and tribal organizations the BIA communicates, coordinates, and consults on a continuing basis with these entities on issues of water delivery, water availability, and costs of administration, operation, maintenance, and rehabilitation of projects that concern them. This is accomplished at the individual projects by Project, Agency, and Regional representatives, as appropriate, in accordance with local protocol and procedures. This notice is one component of the BIA's overall coordination and consultation process to provide notice to, and request comments from, these entities when the BIA adjusts irrigation rates.

Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (Executive Order 13211)

The rate adjustments will have no adverse effects on energy supply, distribution, or use (including a shortfall in supply, price increases, and increase use of foreign supplies) should the proposed rate adjustments be implemented. This is a notice for rate adjustments at BIA-owned and operated projects, except for the Fort Yuma Start Printed Page 32048Irrigation Project. The Fort Yuma Irrigation Project is owned and operated by the Bureau of Reclamation with a portion serving the Fort Yuma Reservation.

Regulatory Planning and Review (Executive Order 12866)

These rate adjustments are not a significant regulatory action and do not need to be reviewed by the Office of Management and Budget under Executive Order 12866.

Regulatory Flexibility Act

This rate making is not a rule for the purposes of the Regulatory Flexibility Act because it is “a rule of particular applicability relating to rates.” 5 U.S.C. 601(2).

Unfunded Mandates Reform Act of 1995

These rate adjustments impose no unfunded mandates on any governmental or private entity and are in compliance with the provisions of the Unfunded Mandates Reform Act of 1995.

Takings (Executive Order 12630)

The Department has determined that these rate adjustments do not have significant “takings” implications. The rate adjustments do not deprive the public, state, or local governments of rights or property.

Federalism (Executive Order 13132)

The Department has determined that these rate adjustments do not have significant Federalism effects because they pertain solely to Federal-tribal relations and will not interfere with the roles, rights, and responsibilities of states.

Civil Justice Reform (Executive Order 12988)

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act of 1995

These rate adjustments do not affect the collections of information which have been approved by the Office of Information and Regulatory Affairs, Office of Management and Budget, under the Paperwork Reduction Act of 1995. The OMB Control Number is 1076-0141 and expires August 31, 2009.

National Environmental Policy Act

The Department has determined that these rate adjustments do not constitute a major Federal action significantly affecting the quality of the human environment and that no detailed statement is required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370(d)).

Start Signature

Dated: May 16, 2008.

Carl J. Artman,

Assistant Secretary—Indian Affairs.

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[FR Doc. E8-12610 Filed 6-4-08; 8:45 am]

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