ARTICLE: 43 C.F.R. Part 417 Does Not Authorize Federal Agency Adjudication of IID Beneficial Use of Colorado River Water Skip over navigation
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Copyright (c) 2008 University of California, Hastings College of the Law
West-Northwest Journal of Environmental Law & Policy

ARTICLE: 43 C.F.R. Part 417 Does Not Authorize Federal Agency Adjudication of IID Beneficial Use of Colorado River Water

Summer, 2008

West Northwest Journal of Environmental Law & Policy

14 Hastings W.-N.W. J. Env. L. & Pol'y 1499


David Osias 1 and Thomas Hicks 2


I. Introduction
In 2003, the Bureau of Reclamation (BuRec) utilized 43 C.F.R. Part 417 (Part 417) 3 to reduce the quantity of water available to a senior California water-right holder and increased the quantity available to junior California water-right holders. BuRec's action took place despite a declaration by the Secretary of the Interior (Secretary) that the Colorado River was experiencing normal flow conditions, and despite that the issue precipitating the Secretary's action involved a beneficial-use dispute among California water-right holders only. BuRec's action had no potential to impact other Colorado River basin states and California's aggregate use was not at issue.

BuRec conducted an informal adjudication to reallocate the water under presumptive federal principles requiring reasonable beneficial use. In doing so, BuRec ignored applicable California water and environmental laws, applicable federal environmental laws, historical and continuing exercise of jurisdiction by the California State Water Resources Control Board (SWRCB), a request by the State of California for formal consultation, administrative adjudicatory due process, and the terms of the United States contract controlling water delivery.

This article addresses whether Part 417 authorizes and empowers BuRec or the Secretary to act as an adjudicator of intra-state reasonable beneficial use of Colorado River water. The authors conclude that Part 417 is not authority for agency adjudication; no express preemptive federal legislation authorizes the Secretary to render a reasonable beneficial use decision without deference to California reasonable beneficial use determinations. The Secretary's reallocation of "permanently allocated" water disregarded specific conflict-resolution procedures contained ...
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