9367 ‎(2)‎

• UCREFRP Catalog Number: 9367
• Author: Colorado Water Workshop.
• Title: Proceedings
• USFW Year: 1992.
• USFW - Doc Type: Colorado Water Workshop July 22-24, 1992.
• Copyright Material: NO

Is the Law of the River Obsolete?

Lori Potter
Attorney, Sierra Club Legal Defense Fund

Is the Law of the River obsolete? When I began thinking about
it and looked over the program for the conference it seemed to me that
this question I am addressing is the topic of the entire conference,
and not just my talk. It is a question that all of us will be well
qualified to answer on Friday afternoon. I see the speakers to come
as providing the pieces of a jig saw puzzle, in which I will try to
provide a frame. It will be a new frame. A different frame than the
two previous speakers have provided. I think that the evolution of
the Law of the River is the topic, not only for the previous two
speakers and the next three of us, but for everyone who is speaking
here in these 2~ days.
When I was starting to plan my remarks I asked three lawyer
colleagues the question, is the Law of the River obsolete? All three
of them said the very same thing to me; they said it depends. I
decided then and there that I was not going to give you a lawyer's
viewpoint of this. Instead, I will give you a mosaic of views of non-
lawyers and other people, some of whom, incidentally, happen to be
lawyers. I think the answer to this question about Law of the River,
curiously enough is not a legal answer. I tried to engage in lateral
thinking, which I understand used to be called left-brain thinking
and, generally, lawyers are not known for that. So, I had to draw on
other sources to put together my remarks and many of those sources are
attached to the synopsis I have prepared. I am going to do two
things today. First, I want to give a cursory definition of the Law
of the River. Secondly, I want to examine the forces that determine
how and why the Law of the River has departed substantially from what
it was envisioned to be, by the original signers of the 1922 Compact.
I will start by defining the Law of the River in a way that may
surprise you. I begin with John Carlson's definition as it appears
in the long article he submitted that is in your materials. "The Law
of the River is a set of compacts, treaties, statutes, and judicial
decisions developed to govern the river and allocate its water along
the Colorado Basin states and between the u.S. and Mexico." This
definition embraces many things that pick up where Jim Lochhead's
outline leaves off, by including statutes and judicial decisions. His
handout ends with 1970 and the Bureau of Reclamation's long-range
operating criteria. Coincidentally, the 1970' s are when environmental
legislation began to be passed by Congress. Some of this legislation
includes the Clean Water Act, NEPA, the Endangered Species Act, the.
Wilderness Act, and the Wild and Scenic Rivers Act. I think that
Carlson's definition, by including statutes and judicial decisions,
is broad enough to embrace all of those laws. It also embraces state
in-stream flow laws, and state public interest provisions which have
the practical effect of influencing how much water is used, where it
is used, when it is used, and how much remains in the stream.
Therefore, the definition I am using for the Law of the River includes
the modern day environmental statutes and the judicial decisions that

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