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Last modified
1/26/2010 12:51:45 PM
Creation date
10/11/2006 11:55:22 PM
Metadata
Fields
Template:
Water Supply Protection
File Number
8200.800.10
Description
Colorado River-Colorado River Basin-Colorado River Basin General Correspondence-Lower Basin\states
State
CO
Basin
Colorado Mainstem
Water Division
5
Date
12/12/1991
Author
Gary D Weatherford
Title
As the Ratchet Turns Bureau Regulations for the Lower Basin
Water Supply Pro - Doc Type
Report/Study
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<br />. <br /> <br />. <br /> <br />federal and state jurisdiction. In other words, more than just <br />the identification of illegal diverters is involved here. The <br />regulatory reach and authority of each Lower Basin state will be <br />affected. <br /> <br />b. <br />contract'''? <br /> <br />"What is the meaning of 'permanent service <br /> <br />What did Congress intend in Section 5 of the 1928 <br />Boulder Canyon proj ect Act when it made permanent service <br />contracts the exclusive game in town? The Special Master in <br />Arizona v. California concluded that the word "permanent" does <br />not mean limited term (see Report of Special Master, at p. 221). <br />The argument that probably will be made by the Bureau is that <br />permanent service has always been limited to the amount of water <br />that can beneficially and reasonably be used. When such use is <br />not there, goes the argument, neither is there a continuing <br />entitlement. The possibility certainly exists that these <br />regulations, when and if implemented, will be judicially tested <br />and some clarification provided as to what Congress intended when <br />it added the phrase "permanent service" in the Lower Basin <br />lexicon. <br /> <br />c. "What is the federal definition of beneficial <br /> <br />use?" <br /> <br />The draft regulations brandish the beneficial use <br />sword, but the sharpness of the blade will not be tested until <br />after the regulations are adopted and then applied in individual <br />cases. Basically, the regulations say that beneficial use <br />determinations will involve consideration of state law and <br />sentiment, but realistically the determinations will emanate from <br />the black box of administrative discretion. It also is possible <br />that these draft regulations are only a step on the path to more <br />refined quantitative standards, in the form of detailed best <br />management practices, crop and locale-defined water duty figures, <br />best available technology requirements, and so forth. <br /> <br />2. Indirectly Posed <br /> <br />Basin?" <br /> <br />a. "How durable is federal preemption in the Lower <br /> <br />The lower Colorado River basin has been considered <br />a grand exception in federal-state water law for some years now. <br />The Supreme Court in Arizona v. California (1963) declared that <br />federal law reigns supreme in the lower Colorado. State law was <br />viewed as preempted by a comprehensive, congressional design for <br />water development, distribution, and management. This is not the <br /> <br />- 10 - <br /> <br />" <br />
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