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<br />. <br /> <br />. <br /> <br />At my invitation, the publishers of the Water <br />Strategist (a quarterly publication that tracks water marketing, <br />finance, legislation and litigation) have generously provided you <br />with a complementary copy of the October 1991 issue. The lead <br />article is about the Bureau's draft regulations. In it you will <br />find some of the draft regulations quoted in full. You will also <br />find some editorial opinion criticizing the Bureau for opting <br />for "regulatory fiat" rather than voluntary transfers. The <br />debate between those who view water as a private commodity and <br />those who view it as a public good is heal thy in my opinion. <br />( See Chapters 7 and 8 of Weatherford and Brown ( eds. ). New <br />Courses for the Colorado River (1986)). Under the Law of the <br />River, as presently configured, it must be said that water is <br />about nine parts public good and one part private commodity. <br /> <br />The current constraints on voluntary interstate <br />reallocations are out of alignment with growing interstate water <br />demand, in my opinion. By hewing to the Law of the River and <br />perpetuating restraints on interstate movement, the draft <br />regul ations, if they become final, could inspire federal <br />litigation testing the issue of whether the Law of the River is <br />constitutional. Does the Law of the River represent a positive <br />Congressional regulation of commerce, legitimating the <br />territorial restrictions? Or did Congress lack any such intent, <br />in which case the territorial restrictions could be found to <br />violate the Commerce Clause of the U.S. Constitution. (See <br />Sporhase v. Nebraska (1982), 458 U.S. 941.) Congress could do <br />away with the suspense, of course, by someday enacting <br />unambiguous legislation on the subject. (And while it was at it, <br />it might as well clarify what is included in the term <br />"mainstream," and meant by the phrase, "permanent service".) <br /> <br />c. "Can the urban and agricultural interests in the <br />Lower Basin be balanced?" <br /> <br />The Bureau has an almost impossible juggling act. <br />Over the years Congress has thrown one multiple purpose after <br />another into the air and told the Bureau to keep them all in <br />play. The Bureau is a reluctant regulator that has been forced <br />to the wall. At heart, these draft regulations represent a good <br />faith effort by the Bureau to adapt to a new era characterized by <br />efficiency and reallocation. Water conservation, water <br />efficiency, water forfeiture, nonuse -- many of the focal points <br />of the draft regulations make more water available for <br />reallocation. Reallocation by regulation is cheaper at this <br />point in history than allocation by construction of water <br />proj ects. The woeful calls in the wilderness by resource <br />economists, the warnings of the old Bureau of the Budget decades <br />ago, and the effective scrutiny of the Office of Management and <br />Budget have converged in a single message. Western water is not <br />a free and expanding resource pool. Competing multiple uses can <br /> <br />- 12 - <br />