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<br />. <br /> <br />. <br /> <br />. <br /> <br />t.... <br />t:D <br />~> <br />tv <br /> <br />LEGAL AND INSTITUTIONAL CONSIDERATIONS <br /> <br />A number of legal/institutional considerations will influence <br />water availability for emerging energy technology (EET) development in <br />the Upper Colorado River Basin. The major considerations are: <br />(1) water rights in the individual states of the Upper Colorado Basin; <br />(2) reserved water rights; (3) water quality standards for salinity; <br />and (4) the "Law of the River"--i.e.) the compacts, treaties, reservoir <br />operation criteria, and other legal and institutional factors that in- <br />fluence the use of water in the Colorado River Basin. <br /> <br />Water Rights in the Upper Basin States <br /> <br />All states in the Upper Basin are prior appropriation states. <br />The operation of the water rights systems varies a bit from state to <br />state as to administration and adjudication of water rights, preferred <br />uses, and lIpublic interestll criteria--all of which factors (and others) <br />must be taken into consideration before a water right is perfected and <br />used. Chapter 5 presents a brief discussion of the water rights system <br />in each state, and then compares and contrasts one system to another. <br /> <br />The general conclusion is that transfers of water for EET are <br />not constructed anywhere in the Upper Basin by the application of <br />"public interestl! criteria. Further, the general availability of water <br />for sale or lease in the Upper Basin would seem to indicate that energy <br />companies could usually acquire the water they need. <br /> <br />Chapter 5 (Table 5.1) and Appendix K show that some energy com- <br />panies may have sound strategies to provide water for future EET develop- <br />ment on the basis of conditional rights. Major transfers from, for <br />instance, agriculture to EET may exist but cannot be documented. In <br />any case, states' water rights systems do not appear to be a constraint <br />for future EET development. <br /> <br />Reserved Water Rights <br /> <br />Reserved water rights in the Upper Basin include Indian reserved <br />water rights and Federal reserved water rights. Chapter 5 presents a <br />discussion of these topics. In summary, there are substantial uncer- <br />tainties associated with future Indian reserved water rights, and to <br />a lesser extent, Federal reserved water rights. The significance of <br />the problem is well stated in a recent Supreme Court decision: <br /> <br />The quantification of reserved water rights for the <br />national forests [and for Indian lands] is of critical <br /> <br />1-10 <br />