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<br />Page 11
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<br />Rules of the River
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<br />policy, Consistent witb this view, tbe bureau proposes to
<br />consult witb appropriate state authorities in determining
<br />wbetber a water user is putting Colorado River water to
<br />beneficial use, However, the Regional Director "may respect"
<br />(no expression of deference) any determination by state au-
<br />thorities, Moreover, the Regional Director may make deter-
<br />minations "independent of State autborities." Sucb determi-
<br />nations "generally will be guided" by state law, but "may
<br />recognize beneficial uses not recognized under State law."
<br />0iteritJ. Failure to put Colorado River water to beneficial
<br />use may result in a reduction of contractual entitlements (see
<br />Box 2, p,7), In reaching his decision, tbe Regional Director, in
<br />consultation witb state autborities, will consider relevant facts,
<br />circumstances, and conditions, Yet some of the proposed
<br />guidelines are problematic,
<br />First, agricultural uses receive less protection against a
<br />rmding of "nonuse" tban domestic uses. Under guideline (I),
<br />the Regional Director may consider future growtb in water
<br />demand for domestic uses, but not agricultural uses, Under
<br />guideline (6), tbe Regional Director may consider a multitude
<br />offactors for nonuse by municipal users, including "market and
<br />economic fluctuations" and "any otber" relevant factors.
<br />Guideline (7), whicb pertains to agricultural users, does not
<br />include "market and economic fluctuations" nOf uany other
<br />relevant factors."
<br />Second,tbe guidelines provide water users witb conflicting
<br />incentives to save water, Under guideline (2), tbe Regional
<br />Director will not reduce an entitlement if nonuse results from
<br />implementation of documented water conservation measures.
<br />Under guideline (4), bowever, "tbe greatest quantity" of Colo-
<br />rado River water put to reasonable beneficial use "over tbe
<br />previous 5 years" will become tbe basis for entitlements in
<br />circumstances wbere future build-up of water use is the basis
<br />for retaining original entitlements not fully utilized,
<br />Finally, uuder guideline (3), tbe Regional Director will
<br />consider additional build-up of water use as the basis for
<br />retaining original entitlements if the water user can demon-
<br />strate a need for the entire entitlement "within a reasonable
<br />time." Tbe amount of unused entitlements retained for this
<br />purpose is based on tbe user's growth, adjusted for "reasonable
<br />conservation." Tbe criteria of wbat constitutes reasonableness
<br />is not specified,
<br />Procedure, Tbe director's final determination will be made
<br />in a fast-paced administrative process (see Box 3, p,12), Tbe
<br />water user will bave 90 days to sbow cause wby tbe director
<br />sbould not order a cease and desist order, A request for
<br />bearing will not be granted "unless tbe respondent's answer
<br />demonstrates tbe existence of material issues of fact." Tbe
<br />water user bas tbe burden to prove tbat be bas put his entitle-
<br />ment to beneficial use,
<br />
<br />,uP
<br />
<br />WATER CONSERVATION
<br />
<br />Following tbe Reclamation Reform Act of 1982, each
<br />district that has a repayment contract or a water service
<br />contract "sball develop a water conservation plan," The
<br />Regional Director will consult with each contractor for making
<br />annual recommendations for conservation measures and oper-
<br />ating practices, "Eacb plan sball contain reasonable and
<br />economically feasible goals, measures, and time scbedules"
<br />(empbasis added), Water users tbat irrigate less than 2,00J
<br />acres and domestic users with annual diversion entitlements nf
<br />less than 5,000 af may be exempted from tbe preparation of
<br />plans, "Water users may submit or designate State-required
<br />water conservation plans for approval by tbe Regional Direc-
<br />tor."
<br />Plans sball be updated at 5-year intervals and submitted to
<br />, the Regional Director for review and approval, Water users
<br />shall submit tbe following information: "an evaluation of ac-
<br />complisbments in water conservation during the previous five
<br />years; a discussion of future water needs; water conservation
<br />opportunities, limitations, and goals; and time scbedules for
<br />implementing new or modified water conservation measures."
<br />Under tbe proposed regulations, tbe Regional Director
<br />may direct tbe water user to modify the water conservation plan
<br />if be (or tbe appropriate State autbority) determines tbat the
<br />water user is applying Colorado River water to nonbeneficial
<br />or unreasonable use, "If a water user fails to take actions
<br />required to correct tbe nonbeneficial or unreasonable use of
<br />Colorado River water within the designated time period, the
<br />Regional Director may reduce the water user's diversion re-
<br />quest, , , , , in amount equal to tbe amount of water tbat tbe
<br />Regional Director determines is nonbeneficially or unreasona-
<br />bIy used, Any sucb reduction sball continue to be made until
<br />the water user bas eliminated tbe nonbeneficial or unreason-
<br />able use, This reduction in diversions is separate from the
<br />reduction in entitlements (for nonuse),"
<br />What constitutes "reasonable and economically feasible
<br />goals, measures, and time scbedules?" The proposed regula-
<br />tions are silent. Should tbe value of water in municipal use
<br />guide what is taken to be reasonable conservation by agricul-
<br />tural water users, in the absence of a actual proposed transfer
<br />agreement? Tbat is, does tbe bureau plan to follow California's
<br />practice of considering tbe value of water in bypotbetical water
<br />trades wbenjudging tbe reasonableness of water use by agricul-
<br />ture?
<br />
<br />WATER TRANSACTIONS
<br />
<br />Tbe proposed regulations allow assignment of contractual
<br />entitlements, transfers of entitlements, excbanges, and tempo-
<br />rary sales of water (see Box 4, p, 13), The proposed regulations
<br />lack criteria for key administrative decision-making and con-
<br />
<br />continued f'n page 12, , ,
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<br />WATER STRATEGIST Publisbed by Stratecon, Inc, P,O, Box 963, Claremont, CA 91711 (714) 621-4793
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