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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 />o
<br />
<br />PEARCE: To me, any talk about markets in the
<br />western United States includes the slow, or rapid,
<br />erosion of the prior appropriation doctrine. I guess
<br />we're all victims of our own time, like Major Powell. I
<br />was taught in law school, and since, that prior
<br />appropriation was the solution in the West, not the
<br />problem; that beneficial use was a standard that
<br />allowed our economies to develop and flourish,
<br />particularly the standard that the senior user must
<br />either take his water and put in to use or let it flow
<br />down the priority chain.
<br />I do see, in the next century, an erosion of that
<br />standard. It will have to happen to facilitate markets.
<br />But I do have concerns about that. Water is a
<br />different commodity than electricity. It can't be
<br />moved readily, it can't be manufactured readily. And I
<br />don't believe it's something that should always go to
<br />the highest bidder. It deserves some measure of
<br />protection because it is such a fundamental resource.
<br />SD our marketing proposals and the erosion of prior
<br />appropriation, I think, ought to be a very measured
<br />and considered process rather than a leap into the
<br />unknown.
<br />On a completely different subject, I think in the
<br />next century we're going to see the most activity in
<br />the effort to save precious ecosystems and implement
<br />more fully the Endangered Species Act. This is going
<br />to take water. It's going to take money. We all know
<br />tHat, but it's also going to take a buy-in of support at
<br />the local level. I think this can be best accomplished
<br />!:iy locally driven and federally supported programs
<br />such as the Lower Colorado River Multi Species
<br />G:onservation Program. Mexico needs such a pro-
<br />gram, too, to deal with the environmental issues in
<br />the Colorado River Delta. The Delta is generally
<br />regarded in the Colorado River Basin as the next
<br />great bombshell waiting to go off. The one final thing
<br />I would say is that conservative reservoir operations
<br />in the Lower Basin tend to contribute to spills and
<br />spills tend to help the Colorado River Delta.
<br />
<br />LESHY: I have very little to add. The list that my
<br />colleagues have put together pretty much covers
<br />everything. I would just emphasize, from my own
<br />perspective, a couple of things that Mike and David
<br />mentioned. One is that markets won't solve the
<br />species ecosystem problem, and that is going to be a
<br />big problem. And, as Mike pointed out, the Mexican
<br />Delta is going to be a big issue in the next 10 to 20
<br />years and it's going to take a lot of work. The MSCP
<br />process that's underway, will hopefully put into a play
<br />a way to solve that problem. But that's going to be a
<br />very big challenge and it has its own unique politics
<br />because of the international border.
<br />
<br />I would also underscore - it's been probably
<br />mentioned too little here - the Indians' role in this.
<br />Both quantifying their rights and making them
<br />players in the market have to be done. The tribes
<br />can't be left out of the marketing process, particularly
<br />those tribes that have decreed or otherwise quantified
<br />rights. The federal government has an obligation,
<br />certainly a moral one and probably a legal one, to
<br />facilitate that process.
<br />And, as one of the questioners to the earlier panel
<br />mentioned, there's an interesting problem of the
<br />confluence ofIndian rights, Indian quantification
<br />and the Endangered Species Act. The way the
<br />Endangered Species Act is administered puts tribes
<br />with senior rights at the end of the pipeline. It's a very
<br />awkward, and some would argue, wrong position to
<br />be in, and that's something we've been wrestling with
<br />lately in the Colorado River Basin and it's coming up
<br />elsewhere as well. Over the next 10 to 20 years, that's
<br />going to be a problem as well.
<br />A century out, who knows? If you look at the
<br />global warming data and its effects on stream flows
<br />and reservoir evaporation and all that, I'm sure 50
<br />years from now our successors are going to be talking
<br />about a set of problems that today we have no
<br />comprehension of.
<br />
<br />Muys: A follow-up on the Indian water rights
<br />question. It seems to me, most of us are really living
<br />on unused Indian water rights throughout the West.
<br />So, when the day of reckoning comes, I think most
<br />people think, "Well, it just means somehow the tribes
<br />will still be willing to sell their water and we'll just
<br />start paying for it instead of getting it for nothing."
<br />I wonder whether the casino gambling develop-
<br />ments will make those factions in tribes who don't
<br />want to get rid of their water and want to keep it for
<br />religious and other cultural purposes less interested in
<br />selling their water. So I'm wondering whether what
<br />we thought might be a sure thing, "Comes the day of
<br />reckoning, we'll just start paying for tribal water
<br />rights," really will be. Maybe the tribes won't feel the
<br />need for those funds and will choose to use their
<br />water for other purposes.
<br />
<br />LESHY: If you look at tribes with substantial water
<br />claims and tribes with substantial gaming revenues,
<br />they are, for the most part, different tribes. Also, if
<br />you look at the history of gaming in this country, it's
<br />very cyclical. Every two generations there's a change. I
<br />expect Indian gaming will wither over the course of
<br />the next generation or two, as gaming will generally,
<br />if history is any guide.
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