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<br />October 6, 1992
<br />Issue No. 959
<br />
<br />
<br />WESTERN
<br />STATES WATER
<br />
<br />TIlE WEEKLY NEWSLElTER OF TIlE WESTERN STAlES WATER COUNCIL
<br />
<br />editor
<br />
<br />Tony Willardson
<br />
<br />Creekview Plaza, Suite A-201 I 942 East 7145 So. I Midvale, Utah 84047 I (801) 561-5300 I FAX (801) 255,9642
<br />
<br />chairman - Dave Kennedy
<br />
<br />typist - carrie Curvin
<br />
<br />CONGRESSIONAlUPDA~ENERGY
<br />
<br />National Energy Policy
<br />
<br />At press time, the fate of a national energy bill was
<br />still uncertain, In the early hours of the morning on
<br />October 1, a conference committee reached
<br />agreement on the bill. The House approved the
<br />~ conference report. but the Senate has not yet acted,
<br />... At the Senate's insistence, the House's "Miller
<br />amendments' to exempt state protected rivers from
<br />FERC's licensing jurisdiction fYVSW #946, 944) were
<br />dropped from the conference bill. Various alternatives
<br />were considered, but rejected. The conference
<br />committee agreed to expanded language exempting
<br />state and local lands from the Federal Power Act's
<br />eminent domain powers, including wildlife refuges,
<br />parks and recreation areas. Reportedly, a Senate
<br />provision exempting hydropower projects in Hawaii
<br />from federal jurisdiction was dropped. Title XVII of the
<br />conference bill expands annual charges imposed on
<br />licensees to include 'any reasonable and necessary
<br />costs incurred by federal and state fish and wildlife
<br />agencies and other natural and cultural resource
<br />agencies,...' The section also mandates a re-
<br />definition of 'fishways' which may be required at
<br />hydropower projects, and says that any future
<br />definition must have the concurrence of the
<br />Secretaries of Interior and Commerce. Eminent
<br />domain provisions reaffirming BlM and Forest Service
<br />jurisdiction over rights of way and special use permits
<br />for hydropower projects were retained. Some
<br />provisions related to the Yucca Mountain nuclear
<br />waste site characterization were added back into the
<br />~ bill, In response, both Nevada Senators threatened
<br />... a filibuster, The conference committee also dropped
<br />authority contained in the Senate bill for the Bureau
<br />of Reclamation and Corps of Engineers to undertake
<br />water conservation and efficiency improvements to
<br />increase hydroelectric generation,
<br />
<br />executive director - Craig Bell
<br />
<br />U1lGATlON
<br />
<br />Pvramid Lake Piute Tribe v. TumiDSOOd
<br />
<br />A Nevada district court has, ,issued an order in
<br />Pvramid lake Piute Tribe v, R. Michael Turnipseed
<br />(Nos. CV91-2231, 2232, 2245; August 31, 1992)
<br />reversing Nevada State Engineer Turnipseed's
<br />decision approving certain water right change
<br />applications in Washoe County, and remanding the
<br />matter to the State Engineer for further proceedings.
<br />The State Engineer approved both intra and
<br />interbasin transfers from the Honey lake Basin for
<br />water intended to be used in the Reno-Sparks area.
<br />Some of the rights were unperfected. After the State
<br />Engineer considered the application for change, he
<br />held hearings and approved the transfers subject to
<br />conditions, Subsequently, the Pyramid lake Piute
<br />Indian Tribe, and lassen County, California, filed a
<br />petition for judicial review of the actions. They
<br />contended, among other things, that the transfers
<br />could be allowed only to the extent that they were
<br />based upon perfected water rights,
<br />
<br />In remanding the ruling, the court noted that the
<br />State Engineer "failed to provide the factual
<br />underpinnings necessary for judicial review of his
<br />decision,' While this, in itself, would have
<br />necessitated the remand, the court said, 'certain
<br />additional legal issues have been raised and briefed
<br />by the parties on this appeal. Resolution of these
<br />issues at this time would be in the best interest of the
<br />court and all parties..... One such issue was whether
<br />unperfected rights could be transferred. The court
<br />held 'the State Engineer may grant a permit to
<br />change the place of diversion, manner of use, or
<br />place of use of water only if the right to that water
<br />has been perfected; that is, already put to beneficial
<br />use.. The ruling came in the face of Nevada's
<br />contention that it has been the 'long-standing policy
<br />
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