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<br />With that brief monologue, let me move on. It
<br />seems to me that other events cause the Law of the
<br />River to evolve and in many instances these are of a
<br />practical nature. The Central Arizona Project comes
<br />along and reshaped the Law of the River a bit. We
<br />also have this ongoing situation with California using
<br />surplus water in the Lower Basin. In recent years, it
<br />has used as much as 800,000 acre-feet over its 4.4
<br />million acre-foot allocation. As Professor Sax noted,
<br />one of the Secretary's current priorities on the river is
<br />getting California to adopt some version of the 4.4
<br />Plan.
<br />Certain things have to take place in California to
<br />accomplish that, which I'm not going to go into now.
<br />But one essential element appears to be a surplus
<br />declaration on the river by the Secretary for a period
<br />of time. In recent years, the surplus declarations have
<br />been on a year-by-year basis. As that happens, there's
<br />always a bit of tension in the system. The Upper
<br />Basin states are always a little bit skittish about these
<br />declarations.
<br />In order to get California's 4.4 Plan down the
<br />road, I understand California may be seeking to have
<br />a surplus declaration for a IS-year period. This is
<br />causing some interesting discussions around the
<br />Basin. The Upper Basin states and, I guess, Nevada
<br />and Arizona as well, are saying, "Wait a minute, who's
<br />going to take the risk, how is it all going to work?" In
<br />this context, let me turn to the panel with the first
<br />question: Can the Law of the River accommodate
<br />this type of element in a 4.4 Plan and make it
<br />possible to get through this next period on the river?
<br />And, if it can't be done voluntarily, where the states
<br />and the federal government agree, what role can and
<br />should the Secretary play in this regard?
<br />
<br />JEROME Muvs, ATTORNEY
<br />
<br />To put the California 4.4 Plan effort in perspec-
<br />tive, it's important to remember that just because
<br />California has been traditionally using in excess of
<br />4.4 million acre-feet annually it doesn't mean it's
<br />some kind of illegal or unlawful or unjust or immoral
<br />use of water. The Secretary has authorized California
<br />to use that much water. That's one thing to remem-
<br />ber.
<br />Secondly, as I recall, and some of the others on the
<br />later panels can correct me, the letter from the other
<br />basin states to California in 1996 expressing concern
<br />about the magnitude of California's uses urges the
<br />state to reduce its dependence on surplus. It didn't
<br />say, "Get down to 4.4 or we're coming after you."
<br />They want California to reduce its dependence on
<br />surplus and it seems to me that that is what Califor-
<br />nia, with the Secretary's urging and assistance, is
<br />diligently trying to do. And to be able, when neces-
<br />
<br />unbridled discretion
<br />
<br />to declare surpluses,
<br />
<br />sary, to live on 4.4 in the particular shortage year or
<br />normal year or difficult water period. I think the Law
<br />of the River is flexible enough to get them to reduce
<br />their dependence on surplus. What happens if they
<br />don't is something else.
<br />The Secretary certainly has, in my view, almost
<br />unbridled discretion to declare surpluses, within
<br />reason. If it were a patently egregious error or
<br />flagrantly arbitrary to declare a surplus, I assume one
<br />of the other states could come after him. But he's got
<br />quite a bit of authority
<br />under the Boulder
<br />Canyon Project Act,
<br />and particularly under
<br />the Decree in Arizona v.
<br />California, to declare
<br />surpluses. So it would
<br />be very hard for
<br />another state to lay a
<br />glove on the Secretary if
<br />he decided it was
<br />necessary - even if the
<br />4.4 Plan wasn't
<br />implemented right
<br />away - to declare
<br />necessary surpluses to
<br />let California take what it needs.
<br />
<br />
<br />The Secretary
<br />
<br />certainly has, in
<br />
<br />my view, almost
<br />
<br />within reason.
<br />
<br />- Jerry Muys
<br />
<br />GARY WEATHERFORD, ATTORNEY,
<br />
<br />WEATHERFORD & TAAFFE
<br />But isn't the real issue, Jerry, declaring a surplus for
<br />a period of time as opposed to annual declarations?
<br />Let me add a footnote, the six-state position, as I
<br />recall, was indeed an insistence that California get
<br />down to 4.4 by, at the outside, 2015.
<br />
<br />Muys: I think California is trying.
<br />
<br />MICHAEL PEARCE, CHIEF COUNSEL,
<br />
<br />ARIzoNA DEPARTMENT OF
<br />
<br />WATER REsOURCES
<br />One of the things that we have noticed in looking
<br />at the Secretary's discretion is a curious fact. Justice
<br />Harlan's dissent in the 1963 opinion in Arizona v.
<br />California said that the crisis will come at a time of
<br />shortage. I think it's interesting that the crisis has
<br />come at a time of surplus instead. The Secretary's
<br />authority to declare a surplus, we believe, is limited at
<br />least by hydrologic reality. And we think it ought to
<br />be limited also by the practicalities of the situation as
<br />we see them today.
<br />If we are going to provide a soft landing for
<br />California, and I think the Law of the River can
<br />
<br />
<br />THE EVER
<br />EVOLVING
<br />LAW OF
<br />THE RIVER
<br />
<br />SYMPOSIUM
<br />PROCEEDINGS
<br />SEPTEMBER 1999
<br />
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