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<br />
<br />THE EVER
<br />EVOLVING
<br />LAW OF
<br />THE RIVER
<br />
<br />SYMPOSIUM
<br />PROCEEDINGS
<br />SEPTEMBER 1999
<br />
<br />~
<br />
<br />accommodate a soft landing for California, then let's
<br />be realistic and make that soft landing with param-
<br />eters that restrict water use in these times of surplus
<br />to suit the realities of the situation. For example, if we
<br />are releasing surplus water just to keep Metropolitan's
<br />aqueduct full, then let's restrict that to municipal use
<br />in California and not be putting out surplus water for
<br />either agricultural use or some type of groundwater
<br />recharge in those lean years. I think those are very
<br />important principles and ones the Secretary should
<br />take to heart as he faces the challenges in the years to
<br />come.
<br />
<br />DAVID GETCHES, PROFESSOR OF NATURAL
<br />
<br />REsoURCES lAw, UNIVERSITY OF CoWRADO
<br />I'm not purporting to represent the state of
<br />Colorado's position here today. We had hoped Jim
<br />Lochhead would be with us. I'm speaking here as a
<br />free agent.
<br />I think the first part of your question is almost too
<br />easy to answer. Of course it would be a violation of
<br />the Law of the River for California to continue to
<br />violate the limit of 4.4 million acre-feet, but that is,
<br />like I say, too easy an answer.
<br />
<br />First of all, as I think
<br />Jerry indicated, until
<br />very recently, there was
<br />nothing illegal about
<br />sharing excess water that
<br />Arizona wasn't using in
<br />the Lower Basin. The
<br />pinch comes now when
<br />the Lower Basin's full
<br />apportionment is at its
<br />limit of use. The
<br />problem then becomes,
<br />"What can somebody do
<br />about this who doesn't
<br />like it?" I guess as
<br />lawyers, we ask, "Well,
<br />OK, it's theoretically
<br />unlawful, what are you
<br />going to do about it?"
<br />And we have to ask, "Who's hurt?"
<br />The damage from this "violation," put it in
<br />quotes, is prospective and theoretical. At this point, it
<br />would be difficult for anybody to take this to court.
<br />Perhaps the states could sue and they would, I
<br />presume, sue the Secretary. But I think there's a
<br />serious problem of harm and whether or not there
<br />would be relief awardable by the court, as well as
<br />standing and ripeness problems that, at this point,
<br />may be insurmountable.
<br />There's another remedy. It's political. That means
<br />
<br />What the Secretary
<br />has been trying to
<br />do the last several
<br />
<br />
<br />years is to lay the
<br />
<br />groundwork in
<br />
<br />advance and avoid
<br />
<br />what he calls
<br />
<br />"a train wreck."
<br />
<br />- John Leshy
<br />
<br />going to Congress and getting Congress to pass some
<br />legislation for the relief of the other six states. Now
<br />keeping in mind that California controls 10 percent
<br />of the U.S. Congress, assuming they vote together,
<br />which is a big assumption, there would be consider-
<br />able difficulty for the other [states] to muster enough
<br />votes to succeed. Perhaps there is some anti-Califor-
<br />nia sentiment inherent in our national culture that
<br />could be aggregated but I wouldn't count on that.
<br />I think if it went to Congress, there would be
<br />trade-offs. There probably would be a solution. There
<br />might be some limits put on what the Secretary could
<br />and couldn't do, limits on the Secretary's discretion to
<br />deliver water. But I'm not sure that would be a good
<br />thing. It just adds more inflexibility to the Law of the
<br />River, which we grapple with now because of the
<br />difficulty of applying some aspects of it to changing
<br />times.
<br />The other thing that was mentioned here is the
<br />"soft landing" issue. Is it within the Secretary's
<br />discretion to allow California a soft landing and allow
<br />these exceedances in the guise of "surplus" definition
<br />in rule making? In the first place, it's going to be
<br />judged by the same standard as all the other operating
<br />rules and that is "arbitrary and capricious." That's
<br />going to be a tough standard, once you do get into
<br />court, to win on.
<br />The other side of it is, can you imagine the
<br />Secretary not allowing a soft landing? It would have
<br />to be a Secretary whose administration neither owes,
<br />nor hopes for anything in the next presidential
<br />election out of, California.
<br />
<br />JENSEN: John Leshy, what advice are you giving the
<br />Secretary?
<br />
<br />JOHN U:sHY, SOLICITOR, DEPARTMENT
<br />
<br />OF THE INTERIOR
<br />This is unofficial speculation. We have not taken a
<br />position on the details of the question of how far the
<br />Secretary's authority extends. These are my own
<br />professorial, if you want, observations.
<br />I basically agree with everybody, because I think
<br />there is a general core of agreement. In other words,
<br />the Secretary has a great deal of discretion, but it's
<br />bounded by some notion of reason and also bounded
<br />by hydrologic reality. And as Joe [Sax] pointed out
<br />earlier, we are in this interesting situation of having a
<br />sort of legal crisis in an era of still plentiful water. If
<br />we have a drought, particularly a long-term drought,
<br />all bets are off in a genuine water crisis. What the
<br />Secretary has been trying to do the last several years is
<br />to lay the groundwork in advance and avoid what he
<br />calls "a train wreck."
<br />
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