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~\ATE: TI€\ ~Ut-JE e /9 h~3 The Unending Battle W'I l~"Q . J..00 If water Is the lile substance of the West, here we are flght- Ing for our lives again. The latest' question is the Corps of Engineers' action with respect to the reservoir the Public Service Company of Colorado and the Riverside Irrigation District prcpose to buUd In northeaste.-n Colo- rado that was the subject of a decision by a federal court In Denverlnst week. " , \Ve have alre&dy discussed that matter here previously, linking it to the federai court decisbn on Grayrocks Reser-j voir built at Wheatland to sup- ply water for the' MissolL'"i Basin Power Project. " But now COIDes Wyoming's Sen. Malcolm Wallop to shed more Ught on the matter, and to announce he plans to intro- ,duce legislation to set aside the court ruling because it in effect nu11lfles a provision he managed to get inserted Into the Clean Water Act six years ago to preserve states' water rights. Wallop views the decision by Judge John L. Kane Jr. as , a clear threat, if it Is allowed to stand, to the Inherent pow- ers of the states to control their own desti:ties 2S far as , water Is concerncd, We would agree. , , The crux of the controversy between tb~ Corps of Engi- neers on the one h:lDd and the power compa&)' and irriga- tion district on the other ha- sically involves the power of the states themselves to IIllo- cate their water resources ab- sent allY violation of l.nterstate ct'mpl!cts .th!ch is arr-arently not at is~ue h2r<l. Because the Corps of Engi- neers under Its Sectlo:! 404 powers to determine whether a water development project poses a threat to water users, has arrogated to ltaeU a power that it appareotI}. does not possess - and that is to al- locate water usage withlD a state. This seems to be a new as. sertion of power. too, because it was not asserted earlier in the Section 404 permltflng process involving the W)'om-, ing project. In the Colorado' controversy. according to Wallop, the agency said it' wocld be ell risht for the PSC Bcd the irrigatbn district to b';.rlld the re~crvoir Rnd dam provided they put back Ir:to the stre;; m th~ water they w:J}; out. In addition to being patently impossible (this wowd be like demanding that a person wa- tering his 1&.Wt!. guarantee to return to the water provider all the water he acquired from It), what grates on the nerves of the states rights uphold~rs Uke Wallop is that it preempts their power to allocate water resources within their respec- tive jurisdictions. Furthermore. It In effect re- peals an amendment that Wallop himseU h~d inserted in the Clea!l Water Act in le77 that said that nothing in the I act would be construed :!os su- perseding or abrogating "rights to quantities of wnter which have b!!en established by any state." C-'3'3 Thus, if the W)'emln3 State Engineer and Board of Con- trol which have the BtBte power to adjudicate water rights and usage should a1Jo. cate a quantity of water to someOne building a reservoir, such as the several ones envi- sioned under the Wyoming Water Development Act, and the buDder proceeded to earn' out his program, he conceiv- ably could be stopped by this .. federal agency because it has assumed the power to deter-, mine whether or in what quantity the water user would draw on the supplies allocated by the state. We trust you begin to see the dimensions of this Issue. Says Senator Wallop: "If this (U.S.)" district court decision is allowed to stand or is ex. panded,' we may now see a dual system of water alloca- tJon with decisions by the (Army) Corps (of Engbee,s) and the Fish and Wildlife SE:rvcke superimposed on those of the stateD. Moreover, we may 5ee a sItuation i!J. which ~dditil)llal cons\.!fC.ptlve use of Platte River water for any purpose will be proi'Jb- !ted. No western river would be exempt from such a possi- ble consequence." Judge Kan!! snid the Wallop amendment of 1977 was only an expression of congressiO- nal policy and did not take away Iiny state water right. but it certainly does If by such a decision a" water user Is pro- hiblt~d from exercising hill riCht that has been given to him by Ii siste. Anyway, VO'aUo:> hopes to rt>,mec.y all that oy Plittbg i!l I!nmistakable terms what he intended in 1971. and tlia t Is that the stntes' power to nlio- cnte thC'i:' water reso'J.rces sl:nll aot be ilDI.alred by this act unde:- any CU'c'Jillstance3. HopE1u1.ly, it will succeed bccause ctherwise a [{!'cat deal of ch:;os will re!ult to all the p>"ople 02 the West it it does net.