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<br />. <br /> <br />. <br /> <br />. <br /> <br />the Lower Basin, under certain conditions. The wheeling of <br />tributary water, such as the Virgin River in Nevada, is not <br />authorized in the Bureau's draft of last Spring (much to my <br />dismay and that of my client). The applicant desiring wheeling <br />of non-Colorado River water would have to pay the cost of <br />administrative review, enter a contract with the United States, <br />indemnify the United States, show an absence of adverse impacts, <br />comply with applicable laws, install measurement devices, share <br />in Colorado River losses, forego credits for associated energy <br />production and, most importantly, secure approval of the states <br />involved. <br /> <br />Water that would otherwise reach the mainstream is <br />considered Colorado system water and therefore would not be <br />available for wheeling. The wheeled water would have to be of a <br />qual i ty not to degrade the mainstream. Once the wheeled water <br />were used it would lose its identity as such and carry no return <br />flow credit. Also the wheeled water would be in a junior <br />posi tion in the operation of the storage and delivery system, <br />meaning that it would be released ahead of Colorado River water <br />when flood control releases are required. <br /> <br />I have only touched upon some of the high points of the <br />Bureau's draft regulations, but hopefully enough to give you a <br />sense that the draft represents an historic departure from the <br />minimalist regulatory posture of the past. <br /> <br />V. WHAT DOES IT ALL MEAN? <br /> <br />. <br />A. Selective Issues Posed <br /> <br />Let me now identify some particular issues posed, <br />either directly or indirectly, by the regulations. <br /> <br />1. Directly Posed <br /> <br />a. "Where is the hydrological boundary between <br />federal and state jurisdiction?" <br /> <br />It is clear from the Supreme Court's 1963 opinion <br />in Arizona v. California and the 1964 Decree, as supplemented, <br />that the Secretary of the Interior controls the mainstream and <br />the Lower Basin states control the respective tributaries within <br />their boundaries. Left unanswered up to this point is the <br />question: What constitutes a tributary? Does it include any <br />inflow, whether it be surface or subsurface? And at what point <br />does the commingling of such tributary water with the mainstream <br />occur? How broad is the underflow of the mainstream? To answer <br />these questions is to draw a line (or perhaps a DMZ!) between <br /> <br />LS;O <br /> <br />- 9 - <br />