Water & the Law
FOR SALE BY OWNER; BUREAU OF RECLAMATION WATER PROJECTS
By J. Craig Smith
(Published in the Utah Water News, September 1995)

Utah, like most western states, has a number of water projects built and owned by the Bureau of Reclamation ("BOR"). These projects include dams, canals, pipelines and related facilities. The projects were originally built with federal tax dollars. Those who use the water are typically paying on or have paid off long-term repayment contracts with the BOR. However, even the paid-off projects are still owned by the federal government, and are closely administered by the BOR and must be operated under BOR regulations.

This situation may soon change. Last spring, Rep. Joe Skeen (R.N.M.) and Senator Larry Craig (R-Id.) introduced identical legislation in the United States House and Senate, S. 620, H.R. 1232, the "Reclamation Facilities Transfer Act". If these bills are passed into law, they will allow water users to actually gain title to BOR facilities. The Act would, upon request, require the BOR to transfer paid-up facilities to water users at no further cost. Water users would be allowed to prepay existing repayment contracts, if necessary, to achieve paid-up status.

Not to be left behind by Congress or perhaps to blunt the current legislative effort, the BOR, on August 7, 1995, released its own more modest proposal entitled "Framework for the Transfer of Title, Bureau of Reclamation Projects." The BOR's proposal would allow transfer of uncomplicated single purpose projects and may require payment to the government for projects beyond repayment of existing or paid-off repayment contracts. The projects would also have to meet additional criteria for transfer. The BOR's proposal would require specific legislative authorization to transfer each facility that meet the criteria for transfer.

At least two of Utah's Congressional delegation have indicated they are supporting the current legislation. Staff of Senator Robert Bennett and Congressman Bill Orton affirmed their support for the bills. Inquiries to other Congressional offices are as of yet unanswered. Congressman Orton will likely sign on as a co-sponsor of the House Bill when Congress resumes session. Hearings on the legislation may be held as early as this fall. The uniqueness of this potential opportunity should not be overlooked by water users. However, there remains a number of unanswered questions. For example, how would liability for defects or dam failure be handled? Would the transfer to water users make BOR regulation on water user and conservation plans inapplicable? Would technical expertise of the BOR be available for transferred projects?

The Utah Water Users Association and the law firm of Nielsen & Senior are working together to arrange for a meeting between water users interested in the legislation and one or more staff members of Utah's Congressional delegation. The purpose of this meeting will be to receive an update on the legislation and have questions answered that water users may have regarding the legislation. The date and time have not been arranged, but this meeting will likely take place this fall.

This legislation and the BOR's announcement of a framework for transfer are yet another sign of the changing role of the BOR and of the federal government in western water matters. No longer can Uncle Sam be looked to as a funding source for water projects. The BOR is busy transforming itself into a water conservation, water administration organization. It is also a sign of general dissatisfaction of western water users with the current system and BOR management of projects and water use.

If you would like further information including a copy of the legislation or the BOR Framework, please contact the author at 413-1600.

Back to Top