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<br />. <br /> <br />. <br /> <br />. <br /> <br />current standard elsewhere in the West. Gradually the federal <br />judiciary has elevated state law, construing Section 8 of the <br />1902 Reclamation Act and parallel Congressional legislation to <br />mean that deference will be given by federal agencies to state <br />law except where state law would impinge on a clear Congressional <br />mandate (California v. United States (1978), 438 U.S. 645). <br /> <br />In these draft regulations the Bureau is <br />suggesting that "respect" can be given to state law in connection <br />with the definition and enforcement of beneficial use <br />requirements. The Bureau is not saying that state law must be <br />followed. The Bureau appears to be wanting to perpetuate its <br />preemptive powers, while at the same time providing that they <br />will not be exercised without first consulting with state <br />authority. The fact that the draft provides that state law <br />definitions of beneficial use could be adopted and applied by the <br />Regional Director, and further that state-approved conservation <br />plans could be readily approved by the Regional Director, <br />reflects cooperative federalism. <br /> <br />If there is litigation over these regulations, it <br />is always possible that the U.S. Supreme Court could revisit the <br />1963 Arizona v. California opinion on the issue of federal <br />preemption and either continue the Lower Basin's special status <br />or bring it into alignment (by a differing construction of the <br />Boulder Canyon Act) with other regions in the Reclamation Empire. <br /> <br />b. "How durable are the territorial restrictions on <br />the use of entitlements?" <br /> <br />With some fanfare, the Secretary of the Interior <br />and the Commissioner of Reclamation have committed the Bureau of <br />Reclamation to facilitating water right transfers where <br />condi tions are right. The draft regulations reflect a clear <br />commi tment to the freer movement of water. However, they also <br />reflect the perpetuation of territorial restraints and <br />constraints upon transfers. This is not the Bureau's fault, as <br />the Bureau is constrained by the Law of the River. The 1964 <br />Arizona v. California decree charges uses against the state in <br />which the use occurs, meaning that a state cannot increase its <br />basic apportionment simply by importing more water from the <br />system. My own sense of the situation is that the Boulder City <br />regional office would be open to considering interstate transfers <br />in the Lower Basin if the three Lower Basin states were united in <br />favor of it and interested tribes supported the concept. (It is <br />noteworthy that, independent of the draft regulations, the <br />Boulder City office is developing a concept of interstate water <br />banking for the Lower Basin in response to the "California <br />Conceptual Approach".) <br /> <br />(, g ~{) <br /> <br />- 11 - <br />