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THE EVER EVOLVING LAW OF THE RIVER it is. That's a bit too cynical but there's a grain of truth to it. I've watched various controversies arise, been in numerous meetings in the Upper Basin where rhere's been a vigorous discussion of, "Well, we better sue the Secretary, he's doing this wrong, he's doing that wrong." I'm sure there have been similar discussions over the years in the Lower Basin. I think as the states and the federal government have realized that litigation, unless it's essential, has not been very productive. I suppose you have to have an Arizona v. California once in a while. I know there's been times when giving in on positions has not been pleasant but, I think the feeling was, "It is better than the lawsuit and if there's not a significant downside, perhaps we ought to try it." One I remember is the big debate over the Mexican Treaty obligation and whether or not the Lower Basin tributar- ies ought to be counted. I remember sitting in a number of meetings where Steve Reynolds and Felix Sparks from the Upper Basin were vigorously arguing this matter. In the end, the Secretary, in his operating criteria, sort of split the baby, half of it comes from the Upper Basin, half from the Lower Basin. This wasn't universally rejoiced in but it temporarily solved the problem and the system has gone on. I haven't been involved in the current California situation that we're talking about here, but I sense there is some of that going on. There are ongoing discussions to see whether or not the system can be managed in such a way that we get through this current situation and go on to the next one. Which is how it ought to be if it can be done that way. I know that's fairly mundane and pedestrian stuff but I think when you get through a lot of this, this is what it comes down to. This is particularly true when operating a system like this, which is now being asked to do more and more with no more water and, in some respects, less water. even in the Lower If we're all going to get away from litigation and cooperate in some fashion, basin-wide or SYMPOSIUM PROCEEDINGS SEPTEMBER 1999 o Basin, it seems to me we have to give some serious consideration to new institutional arrangements. - Jerry Muys Muys: We may not be able to do what we want to do with the water that's going to be available in this basin, so there's got to be a certain amount of reality that colors our thinking. But for the next century, it seems to me the two basic future scenarios are: how will unused Upper Basin water be made available for use in the Lower Basin? And secondly, how can the Secretary use this allocation authority we've been talking about to make the optimum use of the water available from the mainstream in the Lower Basin? We may have exhausted that second problem already. As far as making unused Upper Basin water available to Lower Basin, in my opinion, the relevant documents in the Law or the River - the Colorado River Compact, the Upper Basin Compact, the Boulder Canyon Project Act, the Colorado River Basin Project Act and the Supreme Court's decision in Arizona v. California - are flexible enough to permit the accomplishment of moving water from the Upper Basin to the Lower Basin along the lines of the inter-basin transfers that have been proposed on several occasions over the last 15 years - the Galloway proposal, the Resource Conservation Group proposal and the Roan Creek proposal. They faced a lot of opposition from all the basin states ... not very much legal analysis of whether the Law of the River really prohibited them. I've seen only two: the presentation David [Getches] made about 15 years ago at an American Bar Association Conference, and the legal opinion that John Sayre's partner, Clyde Martz, wrote for the Resource Conservation Group, maybe seven or eight years ago. There was a problem with the Colorado export statute and there might have been a problem of getting through the Supreme Court Decree to get the water used in California. But the Law of the River documents are, in my opinion, adequate to accom- modate inter-basin transfers. And it seems to me, at some point, that we're going to be there. I don't see any slowing in the population growth in the three Lower Basin states. So on some basis, interim sales from Upper Basin water rights holders to Lower Basin users - not permanent allocations or alienation of Upper Basi~ rights under the Compact - so that the Upper Baslll will be getting paid for water that is now being released to go downstream and ends up in Lake Mead and then becomes the subject of the dispute over whether it's surplus or not and whether the Lower Basin states get it for nothing. I think the Law of the River is flexible enough to accomplish that if everybody wants to do it. That gets to the second question. We've heard a lot about