9298

• UCREFRP Catalog Number: 9298
• Author: Water Education Foundation.
• Title: Colorado River Project
• USFW Year: 1999.
• USFW - Doc Type: Symposium Proceedings.
• Copyright Material: NO

It's also worth saying, although I think everybody
in this room understands this, that there's this public
image out there that the Law of the River is a finely
tuned, very detailed, finely crafted body of law that
answers every question. The reality is, as we all know,
that there are plenty of silences and gaps and long-
term disagreements about what the obligation of the
Upper Basin is under the '22 Compact to deliver
water to the Lower Basin, and what limits there are
on the operating criteria and how some language in
the '64 Decree ought to be interpreted. That's what a
lot of this debate is about.
Clearly, the operating criteria and setting of
surplus criteria are things within broad discretion of
the Secretary under the Decree, and, requires a value-
laden judgment about operation of the reservoirs.
The Secretary has established criteria and makes
annual operating detetminations and clearly has the
power to continue to do that, or he can do it over a
longer term basis limited by some notion of reason-
ableness.
Now, there are all sorts of ways to visualize the
crisis, and to visualize interests running to the courts,
as we've talked about, or running to the Congress, as
we've also talked about. But it's also interesting that
in the history of the administration of the Law of the
River for the last 75 years, running to the courts or to
the Congress is the great exception, not the rule.
There is only one Supreme Court decision of any
moment in the administration of the Colorado River.
That's a very big exception, it's Arizona v. California,
but nevertheless, look at any other river system in the
country, and you'll find a lot more litigation than on
the Colorado River.
There's, I would argue, really only one major
exception to the Congress' basically hands-off
attitude, other than ratifying compacts, and that's the
Boulder Canyon Project Act. Even there Congress
didn't appreciate what it did when it enacted the
Boulder Canyon Project Act. It took the Supreme
Court in Arizona v. California to tell us what
Congress was doing in 1928.
All the other issues and problems have been solved
by, basically, basin stakeholder negotiation, prodded
from time to time by the Secretary of the Interior. We
hope the same thing happens here, and we think the
machinery is in motion to allow it to happen here. I
think the risks of going to the courts are, losing
control, throwing the dice, having clear winners and
clear losers with some very powerful interests not
having control over the outcome. That's what
happens when you go to court. And that's assuming
you can get by the problems Dave Getches pointed
out of getting a court to even hear the case.
In terms of going to Congress, well, California will

have somewhere around 55-56 House members after
the next reapportionment, compared to a total of
about 20 in the rest of the basin, but California only
has two Senators compared to 14 or 16 in the rest of
the basin. This means there is no clear outcome in
going to Congress.
There is a certain necessity to California getting to
a soft landing, because California is addicted to more
than 4.4. It's an addiction that will take time to
break, and it will be tough to break, but I think all
the basin interests understand that the machinery has
to be put in place to allow that addiction to be ended
- at least when hydrology dictates it - and California
needs time to do that. I think there's a general
agreement on that basic approach, but there will be a
lot of bloodletting over the details of getting there,
but we hope we can get there peacefully.

WEATHERFORD: I wonder if we can't make this
problem a little harder since we all agree at the first
level. Let's assume a circumstance before 2015 of a
few years in which one would not be able to even
reasonably declare a surplus and that we have
conditions varying between normal and shortage.
We have to all recognize that every minute of
every day since March of 1964, every Secretary of
Interior has lived under an injunction and lives under
that injunction today. And that injunction specifies
the basic apportionment deliveries in the Lower Basin
under various conditions. Under a shortage, couldn't
the Secretary define beneficial use in a way that
reallocated some water away from less efficient senior
uses to more efficient junior uses? You can argue that
a procedure for this was set up in 1964 with the
adoption of Part 417 of 43-CFR which allows
advance review by the Secretary of water orders,
toward the end of making certain that the uses are
reasonable and beneficial. If a party, say a user in
Arizona or California, did not like that action,
couldn't that party apply, Jerry, at the foot of the '64
Decree and contest that action and that interpreta-
tion of the Decree?

Muys: I'm just speaking for myself and speculating
on that hypothesis as a lawyer. I would assume the
day the crunch comes and the Secretary imposes a 4.4
limitation in California and there's no 4.4 Plan, that
some users impacted would be in court the next day
trying to stay that action and mandate the Secretary
to enforce the reasonable beneficial use limitations of
senior users in that state, arguing that it's unfair to
curtail any junior users who are making reasonable
beneficial use of their contract entitlement until
senior users are in compliance with reasonable

THE EVER
EVOLVING
LAW OF
THE RIVER

SYMPOSIUM
PROCEEDINGS
SEPTEMBER 1999

o