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. "'''''5~f) uU 1. .." ,:, January 19, 1994 Issue No. 1026 WESTERN STATES WATER TIIE WEEKLY NEWSLETTER OF TIIE WESTERN STATES WATER COUNCIL Creekview Plaza, Suite A-201/942 East 7145 So. / Midvale, Utah 84047 / (801) 561-5300 / FAX (801) 255-9642 Editor - Norm Johnson Typist - Carrie Curvin WESTERN STATES WATER COUNCIL Quarterly Meeting . The 113th quarterly meetings of the Western States Water Council were held January 12-14 in Hawaii at the Royal Lahaina Resort on Maul. John Leshy, Department of Interior Solicitor, spoke at the Council meeting. He addressed a number of issues including wilderness water rights, grazing reform, and the Endangered Species Act (ESA). He pointed out that many current Interior officials are former state government leaders and, in response to a question, assured that they are not engaged in a "war on the West." However, the Interior Department has been handed a difficult agenda, he said, including many unresolved issues such as grazing and mining reform. On grazing and related water rights matters, Mr. Leshy noted Interior began a 'formal rulemaking process that became embroiled in budget legislation and the Interior appropriations bill. The latter included water rights language that was defeated by filibuster r,yvSW #1017). Although some of its provisions were ambiguous, he said, they were not intended to overturn state law, A new rulemaking proposal, expected within a month or two, will include acquisition of water rights for grazing allotments under state law, if possible in the name of the United States. Mr. Leshy requested comments on how states deal with water rights on state lands leased for grazing, . With respect to wilderness water rights, Mr. Leshy stated that the Tarr opinion, reversing previous efforts to assert such claims, had been suspended and would be reexamined ryvSW # 1023). This action was prompted by a state court-imposed filing deadline in Idaho's Snake River Basin adjudication, and federal agencies' desires to protect their water rights. While Chairman - Dave Kennedy Executive Director - Craig Bell the opinion is being reviewed, agencies have been directed to file protective claims, as necessary, Interior has also taken the unusual step of informally encouraging comments on legal and policy questions associated with federal water rights in wilderness areas. Comments are due April 1. Mr. Leshy pointed out that since 1986, legislation creating federal reservations has addressed water rights case-by-case. Considerable controversy remains, however, over federal water rights for wilderness areas that were created between 1964 and 1986. Mr. Leshy, who helped draft the Krulitz opinion, also addressed the concern that the federal "non- reserved water rights" theory might be resurrected. The theory asserted claims to water for many Bureau of Land Management purposes for which there were no reserved rights, and no state-recognized beneficial uses. The opinion was later overturned ryvSW #1023). Mr. Leshy noted that western water law has changed substantially since 1979. He cited Nevada v. Morros, which recognized the in situ water needs of federal land management agencies as beneficial uses, as an example of how state laws can now accommodate federal interests, thus precluding the need for the "non-reserved rights" theory. Regarding the theory's future he said, "While I never say never, I cannot imagine it resurfacing.... The issue is dead." Mr. Leshy also discussed the pervasive and inflexible impact of the ESA. He suggested ESA reauthorization could take several years, as there are no easy solutions to many ESA issues. He added that the Bush Administration's exemption application for the spotted owl was a mistake that set back progress towards workable solutions. He believes federal agencies must work out internal policy conflicts, and added that Interior is looking for opportunities to resolve problems through flexible rulemaking and use