WSP02891 - Laserfiche WebLink

Home Browse Search

highest return irrespective of the existence of state boundaries. The problem is that an individ- ual state may be disadvantaged by a transfer of water beyond its jurisdiction, even though the transfer itself enhances economic efficiency. This raises significant equity issues. The problem is raised because a state may receive no comp- ensation from the transfer. If the state was able to profit from the transfer, many of its equity con- cerns would be alleviated. Alternative #7: Provide for the res- ervation of waters by the Depart- ment of Water Resources to fulfill public interest requirements. Description and Methods of Implementa- tion. The State of Montana currently permits such a reservation of waters for future beneficial uses including approved instream uses. The reservation right under Montana law is "equival- ent to a duly perfected permit right. The reserva- tion receives a priority as of the date the order is adopted by the Board [of Natural Resources]".8If a reservation meets a legitimate foreseeable need, interstate allocations included, it may be considered; if it is used merely to stake a claim, it probably will not. It has also been noted that the "process must bear some rational relationship to the development of the state's water resources or it will be considered a sham, as well as be- coming vulnerable to constitutional attack."g This reservation system could prove beneficial to the state by permitting the Department of Water Resources to set aside an earlier priority date for anticipated future beneficial uses which may not yet be ready for actual planning, funding, or construction. This would ensure that all sub- sequent appropriators were aware of the state's intent to actively pursue the new use at some later date. It could eliminate the monetary and social costs associated with eminent domain proceedings. It might also preclude other entities and individuals from seeking a permit solely to block a potential project in the future. This alternative could be implemented by a statutory enactment authorizing the Director of Water Resources to reserve flows and deny water right applications. Criteria would have to be established, probably legislatively and adminis- tratively, for evaluating proposed reservations and comparing their benefits to the benefits of other potential uses. Physical/Hydrologic/Environmental Im- pacts. This alternative could have significant physical/hydrologic/environmental impacts de- pending upon the decision made by the Depart- ment of Water Resources on whether or not to 3-6 make certain reservations. In the short run, it could result in fewer diversions from streams than would be likely to occur under present conditions due to uncertainty as to future avail- ability of water. This could provide benefits in the areas of water characteristics, fisheries, recre- ation, and aesthetics. A priority date as of the date the reservation is made could have a definite impact on after- acquired rights, during times of water shortage, once the project is completed. These juniorwater rights might be required to shut down to satisfy the reservation if not enough water is available. Socia-Economic Impacts. Reservations would have similar economic impacts to instream appropriations discussed in Alternative #5. In- stream uses have economic value, although the value may be harder to quantify than for con- sumptive uses. Given the economic value of instream uses, formally recognizing them through reservations would promote economic efficiency. Furthermore, if reservations increas- ed the chances of instream uses being consider- ed in any interstate allocation of water, the reser- vation system would help achieve an economi- cally efficient allocation of water among the states. Alternative #8: Seek funding for additional water retention struct- u res. Description and Methods of Implementa- tion. An increase in the number of water retent- ion structures at strategic locations across the state would provide more water for beneficial uses and thereby establish certain rights to it. It would be a step toward maximum utilization of water in the state. The rationale for this altern- ative is much the same as that behind most non- exportation laws-that is that water can be put to beneficial use within the state and measures should be taken to prevent its leaving the state. This alternative would indicate an intent to con- serve and preserve the water for use within the state. It should be noted that if this alternative were combined with an interbasin transfer of water, it could be counter-productive to the overall goal of maximizing the water available for use in Nebraska. It has been argued that once the state begins permitting interbasin transfers to areas within the state which may need the water, it becomes more difficult to justify the prohibition of interstate transport of water to an area which may similarly need the water or to complain about interbasin transfers in other states which reduce Nebraska's supply.