2010-12658. Rate Adjustments for Indian Irrigation Projects

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 located on or associated with various Indian reservations throughout the United States. We are required to establish irrigation assessment rates to recover the costs to administer, operate, maintain, and rehabilitate these projects. We are notifying you that we have adjusted the irrigation assessment rates at several of our irrigation projects and facilities to reflect current costs of administration, operation, maintenance, and rehabilitation.

DATES:

Effective Date: The irrigation assessment rates shown in the tables as final are effective as of January 1, 2010.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

I. Effect of this Notice

II. Responses to Comments on Proposed Rate Adjustments

III. Further Information on This Notice

IV. Administrative Requirements

I. Effect of This Notice

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 if you have a carriage agreement with one of our irrigation projects.

What irrigation assessments or charges are adjusted by this notice for the 2010 season?

The rate table below contains the current, final rates for the 2010 season for all irrigation projects where we recover costs of administering, operating, maintaining, and rehabilitating them. An asterisk following the name of the project notes the irrigation projects where the 2010 rates are different from the 2009 rates.

Project name	Rate category	Final 2009 rate	Final 2010 rate
Northwest Region Rate Table
Flathead Irrigation Project *	Basic per acre—A	$23.45	$23.45
	Basic per acre—B	10.75	11.75
	Minimum Charge per tract	65.00	65.00
Fort Hall Irrigation Project	Basic per acre	40.50	40.50
	Minimum Charge per tract	30.00	30.00
Fort Hall Irrigation Project—Minor Units	Basic per acre	21.00	21.00
	Minimum Charge per tract	30.00	30.00
Fort Hall Irrigation Project—Michaud	Basic per acre	41.50	41.50
	Pressure per acre	58.00	58.00
	Minimum Charge per tract	30.00	30.00
Wapato Irrigation Project—Toppenish/Simcoe Units	Minimum Charge for per tract	15.00	15.00
	Basic per acre	15.00	15.00
Wapato Irrigation Project—Ahtanum Units	Minimum Charge per tract	15.00	15.00
	Basic per acre	15.00	15.00
Wapato Irrigation Project—Satus Unit *	Minimum Charge per tract	58.00	60.00
	“A” Basic per acre	58.00	60.00
	“B” Basic per acre	68.00	70.00
Wapato Irrigation Project—Additional Works *	Minimum Charge per tract	63.00	65.00
	Basic per acre	63.00	65.00
Wapato Irrigation Project—Water Rental *	Minimum Charge	70.00	72.00
	Basic per acre	70.00	72.00
Rocky Mountain Region Rate Table
Blackfeet Irrigation Project *	Basic-per acre	18.00	19.00
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 acre	20.80	22.80
Crow Irrigation Project—All Others (includes Bighorn, Soap Creek, and Pryor Units) *	Basic-per acre	20.50	22.50
Crow Irrigation Two Leggins Drainage District	Basic-per acre	2.00	2.00
Fort Belknap Irrigation Project	Basic-per acre	14.75	14.75
Fort Peck Irrigation Project *	Basic-per acre	24.00	24.70
Wind River Irrigation Project *	Basic-per acre	18.00	20.00
Wind River Irrigation Project—LeClair District *	Basic-per acre	19.00	27.00
Wind River Irrigation Project—CrowHeart Unit *	Basic-per acre	18.00	14.00
Southwest Region Rate Table
Pine River Irrigation Project	Minimum Charge per tract	50.00	50.00
	Basic-per acre	15.00	15.00
Western Region Rate Table
Colorado River Irrigation Project *	Basic per acre up to 5.75 acre-feet	51.00	52.50
	Excess Water per acre-foot over 5.75 acre-feet	17.00	17.00
Duck Valley Irrigation Project	Basic per acre	5.30	5.30
Fort Yuma Irrigation Project (See Note #1) *	Basic per acre up to 5.0 acre-feet	77.00	86.00
	Excess Water per acre-foot over 5.0 acre-feet	14.00	14.00
	Basic per acre up to 5.0 acre-feet (Ranch 5)	77.00	86.00
San Carlos Irrigation Project (Joint Works) (See Note # 2)	Basic per acre	21.00	21.00
San Carlos Irrigation Project (Indian Works)	Basic per acre	57.00	57.00
Uintah Irrigation Project	Basic per acre	15.00	15.00
	Minimum Bill	25.00	25.00
Walker River Irrigation Project *	Basic per acre, Indian	16.00	19.00
	Basic per acre, non-Indian	16.00	19.00
* Notes irrigation projects where rates have been adjusted.
Note #1—The O&M rate for the 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 2010 is $79.00/acre. The second component is for the O&M rate established by BIA to cover administrative costs including billing and collections for the Project. The 2010 BIA rate remains unchanged at $7.00/acre. The rates shown include the 2010 Reclamation rate and the 2010 BIA rate.
Note #2—The 2010 rate was established by final notice published in the Federal Register on April 22, 2009 (Vol. 74, No. 76, page 18398).

When will BIA publish irrigation assessments or charges for the 2011 season?

We published some proposed rates for the 2011 season in the Federal Register on October 23, 2009 (74 FR 54848), and we will publish other proposed 2011 rates in the near future. We will publish the 2011 season final rates in the Federal Register after considering any comments that we receive on our proposals. (We have already published final rates for the 2011 season for the San Carlos Irrigation Project (74 FR 40227).)

Project name	Rate category	Final 2009 rate	Final 2010 rate	Final 2011 rate
Western Region Rate Table
San Carlos Irrigation Project (Joint Works) (See Note #3)	Basic per acre	$21.00	$21.00	$25.00
Note #3-The 2011 rate was established by final notice published in the Federal Register on August 11, 2009 (Vol. 74, No. 153, page 40227).

Has a Notice of Proposed Rate Adjustment been published?

Yes. A Notice of Proposed Rate Adjustment was published in the Federal Register on October 23, 2009 (74 FR 54846) to propose adjustments to the irrigation assessment rates at several BIA irrigation projects. The public and interested parties were provided an opportunity to submit written comments during the 60-day period that ended December 22, 2009.

Did the BIA defer or change any proposed rate increases?

No.

II. Responses to Comments on Proposed Rate Adjustments

Did the BIA receive any comments on the proposed irrigation assessment rate adjustments?

BIA received written comments related to the proposed rate adjustments for the Crow Irrigation Project and the Wapato Irrigation Project.

What issues were of concern to the commenters?

Commenters raised concerns specific to the Crow Irrigation Project about the following issues: (1) Opposition to the $2.00 rate increase for 2010; (2) opposition to the amount of the operation and maintenance (O&M) budget spent on administration and salaries versus maintenance projects; (3) lack of supervision and direction during the irrigation season; (4) opposition to the hiring of additional project employees; (5) efficiencies of contracting with private entities to perform O&M; and (6) impact of rate increases on the local agricultural economy and individual land owners.

Commenters raised concerns specific to the Wapato Irrigation Project on the proposed rates about one or more of the following issues: (1) Objection that the underlying O&M charges are inconsistent with the Yakama Nation's litigation position in the pending appeals ; and (2) assertion concerning BIA's responsibility to manage land that is designated for irrigation water delivery.

The following comments are specific to the Crow Irrigation Project: How does the BIA respond to the opposition to the $2.00 rate increase for 2010?

The proposed 2010 O&M budget for the Crow Irrigation Project budget was prepared in accordance with BIA financial guidelines. The BIA considers the following 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 are determined to be necessary to operate and maintain an irrigation project. The proposed 2010 O&M budget for the Crow Irrigation Project contains increased amounts in staffing, contracts, and materials in an effort to address increasing project rehabilitation needs. These increased budget amounts support the rate increase of $2.00.

How does the BIA respond to the opposition to the amount of O&M budget spent on administration and salaries versus maintenance projects?

The proposed 2010 O&M budget for the Crow Irrigation Project is an increase of approximately three percent (3%) over the 2009 O&M budget. Administrative salaries have been held steady from 2009 to 2010 at approximately 28% to 29% of the entire budget. In 2009 the amount budgeted for maintenance contracts and materials was 16% of the budget total and in 2010 that amount was increased to 32% of the budget total. The BIA is committed to working with local stakeholders in the development of other cost-saving options. Examples of cost-saving options include stakeholder contracts or agreements for selected O&M functions within the project boundaries.

How does the BIA respond to the lack of supervision and direction during the irrigation season?

At the end of the 2008 irrigation season, the Crow Irrigation Supervisory Project Engineer vacated to take a new position. In early March 2009, the BIA advertised for new Crow Irrigation Supervisory Project Engineer. Later that month, the BIA entered into negotiations with the Crow Tribe in response to its request to contract all of the O&M functions of the Crow Irrigation Project for the 2009 season. These contract negotiations resulted in cancellation of the Project Engineer vacancy announcement. The Crow Tribe subsequently canceled its request for contracting options, and the supervisory position went unfilled in the 2009 irrigation season. Currently, BIA is pursuing a stakeholder cooperative agreement for O&M activities for the 2010 season. The extent of O&M cooperative agreements will help BIA determine the type of supervision required at the Crow Irrigation Project for 2010.

How does the BIA respond to opposition to the hiring of additional project employees?

In July 2008, the BIA conducted a program review of the Crow Irrigation Project and found, “the number of equipment operators and irrigation system operators is insufficient. This reduces the amount of control the project has over water deliveries. Most if not all repair work is reactionary versus planned.” (2008 Program Review, Crow Irrigation Project, page 8). In the follow-up Corrective Action Plan, the Project and Regional staff agreed to increase staff to fill vacant positions and/or pursue stakeholder agreements to increase the level of maintenance activities. The final decision on hiring additional field staff for 2010 is dependent on the development of stakeholder agreements. Likewise, the timing of a new Project Engineer is also dependent on the development of stakeholder agreements.

How does the BIA respond to the efficiencies of contracting with private entities to perform O&M?

The BIA agrees with the potential for efficiency increases through contracting options. The BIA continues to encourage stakeholder cooperative agreements for selected O&M activities for the 2010 season.

How does the BIA respond to how rate increases impact the local agricultural economy 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.

The BIA's irrigation program has been the subject of several Office of Inspector General (OIG) and U.S. Government Accountability Office (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 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 over time. Rate deficiencies force the BIA to raise irrigation assessment rates in larger increments over shorter periods of time than would have been otherwise necessary.

The following comments are specific to the Wapato Irrigation Project: How does BIA respond to concerns that the operation and maintenance charges reflected in the 2010 rates conflict with the Yakama Nation's position in pending appeals of these charges?

The Yakama Nation, which is served by the Wapato Irrigation Project, has an administrative appeal regarding the BIA charging the irrigation operation and maintenance on trust lands. Because this is a legal issue currently being appealed and does not specifically target the rate change, it will not be discussed in this notice.

How does the BIA respond to comments regarding the BIA's trust responsibility to enhance idle tracts to make them productive?

As stated in the answer to the preceding question, 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). This means the BIA has no obligation to enhance idle tracks of land. However, recognizing the potential benefits to projects from such enhancements, the updated Irrigation O&M regulations (25 CFR part 171.610) provide for an incentive to potential lessees who want to lease project land that is not being farmed (idle land). The lessee is eligible to enter into an incentive agreement with BIA. Under such an incentive agreement, BIA is able to waive operation and maintenance (O&M) fees for up to three years while improvements are made to bring lands that are currently idle back into production. This feature provides benefits to landowners, who can more readily lease their lands; to lessees, who experience reduced costs associated with bringing lands back into production through reduced or waived O&M assessments; and to the projects, which realize a more stable and productive land base.

III. Further Information on this Notice

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. 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.

Who can I contact for further information?

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

Project Name	Project/Agency Contacts
Northwest Region Contacts
Stanley Speaks, Regional Director, Bureau of Indian Affairs, Northwest Regional Office, 911 NE. 11th Avenue, Portland, Oregon 97232-4169, Telephone: [phone].
Flathead Irrigation Project	Chuck Courville, Superintendent, Flathead Agency Irrigation Division, P.O. Box 40, Pablo, MT 59855-0040, Telephone: [phone].
Fort Hall Irrigation Project	Eric J. LaPointe, Superintendent, Dean Fox, Deputy Superintendent, Daniel Harelson, Irrigation Project Engineer, Fort Hall Agency, P.O. Box 220, Fort Hall, ID 83203-0220, Telephone: [phone].
Wapato Irrigation Project	Pierce Harrison, Project Administrator, Wapato Irrigation Project, P.O. Box 220, Wapato, WA 98951-0220, Telephone: [phone].
Rocky Mountain Region Contacts
Ed Parisian, Regional Director, Bureau of Indian Affairs, Rocky Mountain Regional Office, 316 North 26th Street, Billings, Montana 59101, Telephone: [phone].
Blackfeet Irrigation Project	Stephen Pollock, Superintendent, Ted Hall, Irrigation Project Manager, Box 880, Browning, MT 59417, Telephones: [phone], Superintendent, [phone], Irrigation Project Manager.
Crow Irrigation Project	Judy Gray, Superintendent, Vacant, Irrigation Project Manager, P.O. Box 69, Crow Agency, MT 59022, Telephones: [phone], Superintendent, [phone], Irrigation Project Manager.
Fort Belknap Irrigation Project	Jim Montes, Acting Superintendent, Vacant, Irrigation Project Manager, (Project operations & management contracted by the Tribes), R.R.1, Box 980, Harlem, MT 59526, Telephones: [phone], Superintendent, [phone], Irrigation Project Manager.
Fort Peck Irrigation Project	Florence White Eagle, Superintendent, P.O. Box 637, Poplar, MT 59255, Vacant, Irrigation Manager, 602 6th Avenue North, Wolf Point, MT 59201, Telephones: [phone], Superintendent, [phone], Irrigation Manager.
Wind River Irrigation Project	Ed Lone Fight, Superintendent, Sheridan Nicholas, Irrigation Project Engineer, P.O. Box 158, Fort Washakie, WY 82514, Telephones: [phone], Superintendent, [phone], Irrigation Project Manager.
Southwest Region Contacts
William T. Walker, Regional Director, Bureau of Indian Affairs, Southwest Regional Office, 1001 Indian School Road, Albuquerque, New Mexico 87104, Telephone: [phone].
Pine River Irrigation Project	John Waconda, Superintendent, Vacant, Irrigation Engineer, P.O. Box 315, Ignacio, CO 81137-0315, Telephones: [phone], Superintendent, [phone], Irrigation Engineer.
Western Region Contacts
Vacant, Regional Director, Bureau of Indian Affairs, Western Regional Office, 2600 N, Central Avenue, 4th Floor Mailroom, Phoenix, Arizona 85004, Telephone: [phone].
Colorado River Irrigation Project	Janice Staudte, Superintendent, Ted Henry, Irrigation Project Manager, 12124 1st Avenue, Parker, AZ 85344, Telephone: [phone].
Duck Valley Irrigation Project	Joseph McDade, Superintendent, 1555 Shoshone Circle, Elko, NV 89801, Telephone: [phone].
Fort Yuma Irrigation Project	Marlene Walker, Acting Superintendent, P.O. Box 11000, Yuma, AZ 85366, Telephone: [phone].
San Carlos Irrigation Project Joint Works	Bryan Bowker, Project Manager, Clarence Begay, Irrigation Manager, P.O. Box 250, Coolidge, AZ 85228, Telephone: [phone].
San Carlos Irrigation Project Indian Works	Cecilia Martinez, Superintendent, Joe Revak, Supervisory General Engineer, Pima Agency, Land Operations, P.O. Box 8, Sacaton, AZ 85247, Telephone: [phone], Telephone: [phone].
Uintah Irrigation Project	Daniel Picard, Superintendent, Dale Thomas, Irrigation Manager, P.O. Box 130, Fort Duchesne, UT 84026, Telephone: [phone], Telephone: [phone].
Walker River Irrigation Project	Athena Brown, Superintendent, 311 E. Washington Street, Carson City, NV 89701, Telephone: [phone].

IV. Administrative Requirements

Consultation and Coordination With Tribal Governments (Executive Order 13175)

To fulfill its consultation responsibility to tribes and tribal organizations, BIA communicates, coordinates, and consults on a continuing basis with these entities on issues related to water delivery, water availability, and costs of administration, operation, maintenance, and rehabilitation of projects that concern them. This is accomplished at the individual irrigation project by project, agency, and regional representatives, as appropriate, in accordance with local protocol and procedures. This notice is one component of our overall coordination and consultation process to provide notice to these entities when we adjust irrigation assessment 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) as this rate adjustment is implemented. This is a notice for rate adjustments at BIA-owned and operated irrigation projects, except for the Fort Yuma Irrigation 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

These rate adjustments are not a rule for the purposes of the Regulatory Flexibility Act because they establish “a rule of particular applicability relating to rates.” 5 U.S.C. 601(2).

Unfunded Mandates Reform Act of 1995

These rate adjustments do not impose an unfunded mandate on State, local, or tribal governments in the aggregate, or on the private sector, of more than $130 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. Therefore, the Department of the Interior (Department) is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.).

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 will not affect the States, the relationship between the national government and the States, or the distribution of power and responsibilities among various levels of government.

Civil Justice Reform (Executive Order 12988)

In issuing this rule, the Department has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988.

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 December 31, 2012.

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)).

Information Quality Act

In developing this notice, we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).

Dated: May 17, 2010.

Larry Echo Hawk,

Assistant Secretary—Indian Affairs.