9298

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

THE EVER
EVOLVING
LAW OF
THE RIVER

beneficial use limitations in their contract. That does
not have to be redefined in any way, it's pretty clear
what reasonable beneficial use means throughout the
Colorado River Basin.

WEATHERFORD: Do you think it's clear as a
federal or a state standard?

Muys: Any standard. One of the things that's
amazed me is that it's kind of unique in Washington,
as John knows, for a federal official to have such
broad authority and to be, in my opinion, somewhat
reluctant to exercise it.
Most federal agencies
don't have the authority
they try to purport to
exercise and they're
straining at the envelope
to broaden their author-
ity. Here we've got the
Secretary, the river
master, the Supreme
Court said, "All you've
got to do under your
Section 5 authority is
satisfy the criteria in the
Boulder Canyon Project
Act, regulate the river,
make water available for
municipal and industrial
uses and satisfaction of
present perfected rights and take care of Mexico and
beyond that, it's your ball game."

The states have a lot

of authority in this

area and they should
be given the

opportunity, at least,

to come up with

solutions themselves.

some creative

SYMPOSIUM
PROCEEDINGS
SEPTEMBER 1999

o

- Michael Pearce

GETCHES: Maybe we should push the envelope a
little bit on Gary's question. I'd be interested in
John's, Professor Leshy's, views on this. Suppose the
Secretary did something like what Gary hypothesizes,
and adopts the beneficial use definition of each of the
seven states in each of which fish and wildlife and
recreation are included as beneficial uses, at least to
some extent. Would that enable the Secretary then to
reallocate water to those purposes?

WHY: This is the professor speaking, of course.
There clearly is a beneficial use standard. It has always
been a much debated question about how that
standard should be applied in the Colorado River
Basin. A basic question is, "When does state law end
and federal law begin? To what extent is there
overlap? To what extent can the Secretary impose a
federal standard that is different from the basin states'
standards, which may differ to some extent from each
other?"

But even if you impose such a standard that
doesn't necessarily get to a reallocation of water to
fish and wildlife purposes if we're talking about a
shortage situation. You just shut off the wasteful uses
and then go down the priority system to the next
reasonable and beneficial uses. Could you apply a
stringent federal standard of beneficial use to achieve
a wholesale reallocation of water? Theoretically yes,
but it would be very difficult for a Secretary to do
that for environmental purposes under current
conditions.

PEARCE: I could pose an alternative to the Secre-
tary taking unilateral action to reallocate water within
the various states. The states themselves have been in
the business of allocating water for a very long time.
And, in fact, Congress was quite clear throughout the
last century, particularly in the western United States,
that these type of issues can be resolved at the local
level if the states are empowered to do that. Taking all
of the authority back from the states and putting it in
the federal government is like trying to run the
sausage machine backwards to make pigs. We can't do
it that way. The states have a lot of authority in this
area and they should be given the opportunity, at
least, to come up with some creative solutions
themselves.
One of the things that we promoted, particularly
in the California situation, is that California ought to
be able to come up with a solution to California's
problems. It shouldn't take unilateral secretarial
action to accomplish the results that we need to
accomplish over the next 15 years. So, to me, it
would be an opportune moment in the history of the
ever changing or never changing Law of the River to
try to come up with some creative solutions in
California and among the basin states ,themselves to
solve these difficult problems.

WHY: Don't get me wrong. While I may seem to
be a shrinking violet in terms of the Secretary's
willingness to exercise power, I think it is exceedingly
important that the Secretary has the power to act,
and I think he has a very strong argument that he has
a very broad power. But there's a political reality here,
I don't mean partisan politics, but the notion of
encouraging the basin states and the individual states
to solve these problems consensually is very powerful.
But if the Secretary didn't have the power to act, then
the prod that he can bring to these discussions would
be lost, and I think we'd be a lot further behind than
we are now in solving these problems.