|
<br />This rule follows a decision several weeks ago by the Second Circuit Court of Appeals which
<br />found in Riverkeeper, Inc, v, EP A, that the agency's mitigation measures for new power plants
<br />were inconsistent with the technology-based standards envisioned in section 316(b) of the Clean
<br />Water Act. The Department ofJustice has not yet publicly indicated whether the government
<br />will appeal that decision,
<br />
<br />Okanogan Co. v. National Marine Fisheries Service: The Pacific Legal Foundation (PLF), on
<br />behalf of Washington's Okanogan County and water right owners in the Methow Valley, has
<br />filed a petition for certiorari with the U,S. Supreme Court to review the Ninth Circuit Court of
<br />Appeals affirmation of a U,S, District Court for the Eastern District of Washington decision
<br />holding that instream flow conditions imposed (due to a NMFS biological opinion) under a
<br />special use permit for ditch rights-of-way across U,S. Forest Service (USFS) lands did not
<br />improperly deny the use of state-vested water rights (347 F,3d 1081),
<br />
<br />The question presented to the Court for review is: "Whether the statutory authority of the [U,S,]
<br />Forest Service to manage public lands includes the authority to preserve instream flows for
<br />federally protected species by ordering private parties to stop diverting stream water, through
<br />ditches they built long ago on federal land, thereby confiscating their private water rights vested
<br />under state law,"
<br />
<br />
<br />The petition relies heavily on United States v, New Mexico, which held that national forest lands
<br />were not created with the implied right to reserve water for wildlife or recreational purposes, but
<br />rather, Congress created the national forest system for the preservation of water flows and the
<br />furnishing of timber.
<br />
<br />However, the Court of Appeals distinguished the application of New Mexico, stating that the case
<br />"...did not address the power of the USFS to restrict the use of rights-of-way over federal land,"
<br />Instead, the Ninth Circuit relied on the Organic Act, Multiple-Use Sustained-Yield Act
<br />(MUSY A), and Federal Land Policy and Management Act (FLPMA) to establish USPS
<br />authority,
<br />
<br />We will be discussing this case at our meeting,
<br />
<br />Interior Solicitor Moving Up: On Feb, 5, the Senate Judiciary Committee held a hearing to
<br />consider the nomination of William Myers III, a former Interior Department Solicitor, to the 9th
<br />U,S, Circuit Court of Appeals, Congress is expected to approve the nomination,
<br />
<br />Desalination: Reclamation has released a solicitation (No, 04-FC-81-0952) under its FY2004
<br />Desalination and Water Purification Research and Development Program (DWRP), Reclamation
<br />is forming partnerships to address a broad range of desalting and water purification needs and
<br />reduce costs, Up to $1 million per year was authorized in the Water Desalination Act of 1996,
<br />Awards will be based on available funding and the quality of the proposals, For information see
<br />www,usbr,gov/pmts/acQuisitions/AAMSsol.html,
<br />
<br />Drought-National Integrated Information System: The Western Governors' Association
<br />(WGA), the USGS and International Boundary Water Commission (IBWC) sponsored a
<br />workshop entitled, "Improving the Application of Science in Western Drought Management and
<br />Planning," in Tempe, Arizona on Mar, 11-12, The WGA has also posted on its web site a draft
<br />report entitled, "A Drought Early Warning System for the 21st Century: The National Integrated
<br />Drought Information System (NIDIS)," See www,westgov,org/drought-report,htm for a copy,
<br />
<br />United States v. Matley: On Jan, 20 in a 2-1 panel decision, the Ninth Circuit Court of Appeals
<br />reaffirmed that beneficial use is the basis, measure, and limit of water rights created pursuant to
<br />the Reclamation Act of 1902, Thus a "..,Project landowner is not guaranteed an appropriation of
<br />water that would ensure maximum crop yield," despite legal precedent defining the water duty as
<br />that required to produce a "maximum" crop,
<br />
<br />.
<br />
<br />.
<br />
<br />t
<br />
<br />6
<br />
|