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<br />. <br /> <br />. <br /> <br />arena of reasonable <br />let's see how the <br />tighter. <br /> <br />beneficial use and water conservation. Now <br />draft regulations would turn the ratchet <br /> <br />VI. WHERE ARE WE GOING? <br /> <br />I f the Bureau has its way, here is the regulatory future <br />that we face. <br /> <br />A. Controlling Unlawful Pumpinq (415.5) <br /> <br />The Bureau seeks to eliminate, or put under contract, <br />uses that are adj acent to the River and involve diverting or <br />pumping without benefit of a contract. The draft regulations do <br />this by defining the mainstream to include a so-called <br />"regulatory surface" that extends laterally away from the <br />floodplain to points where barriers to subsurface flow exist. <br />The Bureau intends to map that regulatory surface. Wells in the <br />floodplain and the regulatory surface would be presumed to be <br />pumping Colorado River water. Static water levels in wells below <br />the regulatory surface are presumed to be part of the Colorado <br />River as are the pumping water levels of wells that are above the <br />regulatory surface. While the various definitions of Colorado <br />River water are somewhat confusing in the draft regulations, what <br />is clear is that the drawing of the boundaries of the so-called <br />regulatory surface confronts issues of state jurisdiction. <br /> <br />B. Penalizinq Non-Use (By Reducing Entitlements), Non- <br />Beneficial Use and Non-Reporting of Use (415.10) <br /> <br />One of the biggest bombshells in the Regulations is the <br />set of provisions for reducing entitlement due to nonuse <br />(415.10). Upon an initial finding that there has been five years <br />of nonuse, the Regional Director would issue an order to show <br />cause which may, in the Regional Director's discretion, lead to <br />an administrative hearing. In such a hearing the water user has <br />the burden of going forward and the burden of proof. Appeal from <br />an adverse' ruling could be made to the Commissioner of <br />Reclamation. <br /> <br />Once a final determination were made adverse to the <br />water user, a cease and desist order would issue reducing the <br />enti tlement of the user. The water thus recaptured would be <br />allocable within the particular state as determined by the <br />Secretary of Interior. In this whole process, the draft <br />regulations call for consultation with appropriate state agencies <br />and consideration of "relevant facts, circumstances and <br />condi tions that may be unique to each state "( 415 .10( a) ). <br />Among the guidelines given to the Regional Director in the draft <br /> <br />- 6 - <br />