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. . Page 3 . Rules of the River . . . continued from ptJge J .... Bt,Mr~UaI u~ ofEalillnMlltS (S<<. 415.6) . BmqICioJ 1/.SiIt. "ll1e divenion and rollSumptM: u.sc: of Colorado Rr--ef""3ler. uCCrl by fedenl esubJi$hments, mIlS! be for bcnerlCialusel only." N~of~ "Nonuse,nonbcncncialuse. lIOfl.reporling 0( lUoC, and ulUlulhorizcd use lire . .. referred 10 singly or collectively 115 non~." ''1lIc Regional Director will ron.IlIll..;th IhC:'pproprialc authontic. within the Statu of C.aliforni., Ari1.ona, or ~da in determining whether 01' not II user of Co4ot1ldo River _Ier is applying lhal waler 10 bcncrlC'i.1 \1$C within thai rup<<tive Slale and pll~uanl 10 Ibat 5,.le'5 ~...'!;. If a Stale authority... determines that. I&5Cf of Colorado RMr waler (other than pcnencd riglla for fedcnol cntilie$ defined in the U-'i. SlIpn:mc Court's dc(l'cc inA~ \', CaJiIDnli4) lias not been .pplylng "''3lcr to. a bcnerlriallU.C, Ihat dclcnnilllltion mqy IN- rtsp<<tcJ by the Regional Director for enforcement pufJ'l'Cl"Cs.... (cmph.uisadded) "The Rcgioral Director, inJtpnldml of Slale tJUlhoritits, may aha make belKrlCial ~ determinations for all CoIor.r.do Rn'Cr ~ter usen; when he dee!1l$ it appropriate. In detennining....hether a use is beneficial Of nonbeneririat, the Regional Din::ctor gtflnaJly will be cuided by the la,.,. of the State ..men:: the w.c OCC\IB. The Regional Din::clor may rtCognju beneficial Itsn not rf'(ogniztd /DIM 5ta" law." (emphuis added). "UpotI preliminary determination by lhe Regional Direclor or (excepl for II federal alablir.hmenl) Ihe appropriate Stale aulhority Ihal non~ ~ oC'tlHfed. a Coklrado River water w.cr may be subfr.:t 10 Q rrouction or eliminariOlt of nllitlc..nll as provided in ScctiOll 415.10." (emphasis added) projeel water. From the \;ewpoint of Interior's declared principles of policy toward voluntary water transactions and water allocation, the proposed regulations fall short of expec- tations. In their current form, the proposed regulations por- tend water reallocation by regulatory mandate rather than by voluntary tran.<oactions and state/federal conflicts over Colo- rado River waler. TIlE CONTI:XT Ui The bureau perceives thai the management of the lower Colorado River has entered an "era of limits" becaus.c future requests for water are expected to exceed the annual 7 .5 million af apportionment of watcr available to the lower ba...in slates under normal conditions.. California (4.4 million af/yr), Araona (2.8 million aC/)T), and Ne\'ada (0.3 million af/)T). The propos.cd regulation.<; represent a formal statement of existing managemcnt and operational requirements. As such. they arc nol intcnded to add new regulatory or eO\ironmcntal obligatiolL'>. Instead. the bureau intends 10 enhance its ability 10 eliminate illegal water diversions by unauthorved users and to ensure thai Colorado River water used in lo.....er basin states is put to beneficial use. The proposed regulations in\'olve the terms and conditions included in t.ureau contracts and agreements and the proce- dures 10 be l1.",d in the administration of contracts and agree- ments. With Ihe exception of Indian holders of "Federal establishments' PPRs" (perfected rights for federal entities defined in the U.S. Supreme Court's decree in Arizona v. California), no entity shall divert or use Colorado River water exeept by contract. (The bureau, however, recommends that IndialL'> enter into agreements). For Non-Indian Holders of PPRs, the terms and conditions include specification of bene- (icial consumplive use a.';...'>c>ciated with the entitlemenl, type and place of use, and "criteria for changes in type and place of use, criteria for forfeilUl't orretwction of righl for failure topul the right to beneficial use." (empha.<;is added). For non-federal enlities receiving permanent service. .....ater delivery contracts arc required. Terms and conditions indude specification of "the amount of Ihe entiLlemenl, the type and place of Il...c, criteria for establishing the amount of the annual deliveryehlitlcment during times when Colorado River water supplies are insufficient to fully satisfy all entitlements, the amount of charges and fees associaled with the delivery of water, . . . a requirement for approval of a.'isignmcnls or transfers and indusiolL'> and excllL<;ioDS of land in and from a waler user's seniee area before such actions become effective, criteria for foifeirure of or reduction in lhe contractual entirlemelll because of failure to put the water to beneficial uu . . ." (empha...is added). SurpllL" contracts are also available for unused basic ap- portionment or surplus water (water determined by the Secre- tary to be available for release to satisfy annual consumptive lL'iC in execs... of 7.5 million af). Sources of water available for surplus contracts include: (l) unused basic apportionmenl, (2) surplu..<; apporlionment of water available for consumptive use in excess of 7.5 million af, and (3) waste, water (hat cannot be delivered to other water users in satisfaction of their entitle- ments, delivered to Mexico in satisfaction ortbe MexicoTreaty Obligation. or routed to storage for fu(ure d.;:livery 10 entitle- ment holders. Surplus contracts may "be made available to lL<>CfS on an intermittent ba...is at the discretion ofthe Regional Director pursuant to a recommendation from appropriate Slate official<;." Terms and conditions co\\~r the same issues found in water delivery contracts. BENEfiCIAL USE Except for federal establishments, the diversion and con- sumpti\'e use of Colorado River ......ater must be put to beneficial use (for excerpts of proposed regulations, see Box 1)_ The determinalion of ......hat constitutes beneficial lL<;e, however, raises possible conOicts between stales and tbe bureau. More- o\'er, the bureau's criteria arc either unclear or place agricul- tural users under greater scrutiny than municipal users. In the end. waler u..<>CfS would bcplaccd in a fa...t-paced administralive forum where they mu...t justify their use of Colorado River water. Stak v. FedoaJ ConIrol. The primacy of state law over water allocation has been a central tenet of ......estern water continued on page 7. . . 2880 \VATER STRATEGIST PubIC,hod by Sl<""con, In'- P,O, Box 963, Clmmonl, CA 91711 (714) 621-<1793