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<br />. <br /> <br />. <br /> <br />Page 11 <br /> <br />. <br /> <br />Rules of the River <br />. , , continued from page 7 <br /> <br />. <br /> <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, , , <br /> <br />WATER STRATEGIST Publisbed by Stratecon, Inc, P,O, Box 963, Claremont, CA 91711 (714) 621-4793 <br />