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<br />'receive' it," under traditional property law. He warns;
<br />"Both bills may be creating a new species of federal
<br />water law," that might "give [water users] ... a
<br />compensable right to 'receive' water as a matter of
<br />federal law, even where they lack a 'water right' under
<br />state law. Furthermore, not all rights to 'use' water are
<br />considered property rights under state or federal law, but
<br />these bills could be read to give them a right to
<br />compensation for interference with their use. For
<br />example, many federal reclamation projects serve
<br />recreational purposes, among others, and many
<br />interests could claim a right t.o 'use' project water for
<br />recreation. A federal court could read these bills as
<br />requiring compensation to a marina owner or some other
<br />recreational/tourism interest if water flows or levels are
<br />changed in order to serve other project purposes; e.g.,
<br />irrigation deliveries or flood control." Mr. Leshy
<br />concludes; "The spectra of compensation hanging over
<br />virtually every such judgment would likely paralyze water
<br />managers. Under these bills, anyone affected by a .
<br />change in project operation could have,and would be
<br />likely to assert, a claim for compensation." .
<br />
<br />A further problem lies in ihe bilis' compensation for
<br />takings of a "portion" of property. Mr. Leshy quotes a
<br />Congressional Research Service memorandum of April
<br />11, 1995; "'Portion' could be seen as referring to a
<br />share of a whole property, . . . if one views the overall
<br />quantity of water delivered by the Bureau of Reclamation
<br />. to a [water] district as a whole property, of which each
<br />farmer receives an individual 'portion.' On the other
<br />hand, the term might also mean a part of an individual's
<br />undivided interest .... The distinction is fundamental to
<br />interpreting when the compensation provisions of the
<br />bills are triggered." Mr. Leshy concludes that the vague
<br />language could allow "creative compensation seekers
<br />...[to] segment their rights to use or receive water under
<br />either bill In such a way as to qualify for compensation."
<br />
<br />Compensation for diminution of fair market value or
<br />business losses poses another problem for
<br />administration of subsidized water projects, Mr, Leshy
<br />says. "Both. bills could be read to obligate the
<br />government to pay the farmer the fair .market value of
<br />the water, rather than simpiy to reimburse the farmer's
<br />cost of buying the water .... [R]eclamation farmers could .
<br />receive a windfall-the difference between what they pay
<br />for water and what the Nation's taxpayers subsidize," he
<br />states.
<br />
<br />The bills could also require compensation to
<br />reclamation project beneficiaries for changes made .
<br />pursuant to previous legislation and reclamation
<br />contracting, Mr. Leshy states. He cites the celebrated
<br />Bay-Delta accord as one example which "could readily
<br />be said to modify the 'rights' of millions to 'use' or
<br />'receive' water," and which could result In "a
<br />compensation scheme of breathtaking scope and
<br />complexity." He further cites the Interior Secretary's
<br />management responsibilities under the 1928 Boulder
<br />Canyon Project Act which implements the Law of the
<br />River as having the potential to spawn compensation /
<br />claims under these bills, destabilizing the administrati09
<br />of interstate allocations.
<br />
<br />WATER QUALITY / LITIGATION
<br />
<br />Clean Water Act Section 518
<br />
<br />On May 4, Montana filed suit in the United States
<br />District Court of Montana against the EPA for granting
<br />the Confederated Salish and Kootenai Tribes ("Tribes")
<br />authority over water quality standards on the Flathead
<br />Reservation, pursuant to Section 518 of the Clean Water
<br />Act (CWA). (WSW #1087) Montana is seeking.
<br />declaratory and injunctive relief against EPA's action
<br />granting the Tribes' authority to administer water quality
<br />standards on reservation lands not held by or for Tribal .
<br />members.
<br />
<br />The Tribes applied for treatment-as-State status
<br />under Section 303 of the Clean Water Act in 1992 and
<br />Montana timely commented in opposition to the request.
<br />Since EPA does not acknowledge local governments as
<br />"appropriate governmental entities" to comment on such
<br />requests, Montana also submitted comments on behaif
<br />of local governments. In February 1995, EPA approved
<br />the Tribes' application. In March, the Tribal Council
<br />formally adopted water quality standards for all lands
<br />and surface waters on the Reservation, which will now
<br />be submitted for EPA approval.
<br />
<br />Montana owns 34,000 acres of land on the Flathead
<br />Reservation containing one hundred miles of rivers,
<br />streams and canals. Montana also owns a research
<br />facility located on fee land on the Reservation, which
<br />discharges into Flathead Lake on the Reservation. The
<br />complaint also seeks relief on behalf ofa town, city, and
<br />county owning wastewater treatment facilities on fee
<br />land within the reservation.
<br />
<br />The WESTERN STATES WATER COUNCIL is an organizlitlon of representatives appointed by the Governors .
<br />of member states - Arizona, California, Colorado, Hawaii, Idaho, Nevada, New Mexico, North Dakota, Oregon,
<br />South Dakota, Texas, Utah, and Wyoming - and associate member states Alaska, Montana and Washington.
<br />
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