9298

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

to use and the owner was going to give it up or it was
under an adjudicated right, and had been partly put
to use. As I read it, the part that had been put to use
would have been transferred and the water user
would have continued to develop the undeveloped
portion of his water rights. So it was all within the
context Colorado state law.

LESHY: Clearly there are differences between the
Upper and Lower basins in terms of the role of the
Secretary. On the other hand, in the context of inter-
basin problems, as long as the Upper Basin is not
using a substantial portion of its apportionment, the
Secretary's power over river regulation obviously has
an impact on how Upper Basin water is used. So over
the near term, the Secretary's power is still important,
even in the Upper Basin.

QUESTION FROM THE AUDIENCE: Recog-

nizing that: I'm speaking to a group of five attorneys, I
still would ask the question. Do you see a point in
the future of the Colorado River where the law will
stop evolving to the point that administration and
comity among the states will make it a fairly routine
type activity, the management of the river, not
requiring Supreme Court decisions, major federal
court decisions, new Minutes with Mexico or such?

WEATHERFORD: No.

PEARCE: Speaking as a water lawyer, I hope it
never changes. One thing that we've observed over
the course of the last 80 years, though, is that it does
ebb and flow. There are times when things that no
one could predict come up and cause a new crisis or a
new series of decisions that have to be made. I think
that's going to go on forever. But there are times
when everybody seems to be getting along well, and
we're hoping for one of those very soon.

WEATHERFORD: I think if there were a Lower
Basin Commission as a counterpart of the Upper
[Basin's], for example, you might have more of a
routine and balanced addressing of issues. There are
institutional ways to maybe reduce the need for
legislation, but I think selectively there's always going
to be an invoking of some federal authority, state
sovereignty and tribal sovereignty. But, whenever you
have problems that are crosscutting enough region-
ally, they're going to require some kind of collective
response.

QUESTION FROM THE AUDIENCE: In

understood you earlier, Mr. Leshy, you commented
that the ESA is essentially trumping Indian water
rights. They are unable to develop their water because
of the Endangered Species Act, and I've heard that
comment in other circles as well. It occurs to me that
the Indian tribes have, in many cases, senior rights
and the people who are really preventing them from
developing that right are the people with lesser rights
whose water is already developed. If the Endangered
Species Act is truly this all powerful supreme law and
fish get their water first, the fight really shifts to
between who is the senior or not senior water right
user or holder. Do you see that ever coming into play
or am out in left field?

LEsHY: You put your finger on a conundrum. It's
not clear that the ESA trumps everything. The
conflict is that the way the ESA is administered, it for
the most part assumes actual water use, which may
not reflect seniority or priority of right. If a tribe has
a senior right but is not exercising it, the way the ESA
has been typically administered in practice, the tribe
stands behind people who have junior rights who are
exercising their water rights.
Whether that has to be, and to what extent it is a
feature of ESA policy administration as opposed to a
legal requirement, is one of the issues that people
have been debating and we are wrestling with. The
answer is not clear but you've got your finger exactly
on the problem.

Muys: To follow-up on the question about
reaching puberty. You may recall that when Califor-
nia lost Arizona v. California, 45 California Congress-
men shoulder-to-shoulder crammed the priority of
4.4 for California in times of shortage down Arizona's
throat. It's always seemed to me that the first mag-
nanimous step that somebody in the basin could take
would be to relieve Arizona of that burden. This is
something that Metropolitan began discussions about
with Arizona a few years ago and had a gag order
imposed on them by the state, but it seems to me the
great state of California can be magnanimous and it
ought to be something that should be considered
again. And I hope I'll be allowed back in California.

THE EVER
EVOLVING
LAW OF
THE RIVER

SYMPOSIUM
PROCEEDINGS
SEPTEMBER 1999

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