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! e e e Agenda Item 9k. part 2 The Law of the Colorado River Federalism, Transfer, Environmental and Usage Issues CLE International Tucson, Arizona May 20-21, 1999 The Historic aud Continuing Interest of the Upper Basin in Preserving Secure Interstate Allocations James S. Lochhead Brownstein Hyatt & Farber, P.c. Glenwood Springs, CO The Law of the River, of which the 1922 Compact is the foundation, is the product of economic needs, social conflict, politics and law. To fully appreciate this set of laws, one must understand the historical context in which the laws were created, and the motives of those who fought for and negotiated them. Through that understanding, one can discern the policy perspectives that underlie the current positions of the states and water agencies on the River. Concerns about reliability, certainty and security have driven and motivated the Upper Basin States since before the 1922 Compact was negotiated. Issues related to those concerns continue to motivate all of the states, including endangered species; marketing, leasing and banking; Indian reserved rights; salinity; and the needs and values of the inexorable in-migration of people to the West. However, the California issue is at the top of the states' agenda. Today, there is much uncertainty and turmoil between agencies in Southern California over the use of California's basic apportionment from the River. The turmoil is driven by pressure on California from the Secretary of the Interior and the other Basin States to reduce its overall use of water. On many different issues, the perspectives of the states other than California are varied. On the California issue, though, they are united. They insist that California meet its obligations to live within its means established under the Law of the River. The reason is simple. If California does not do so, if the Law of the River is not enforced, then it is meaningless, and the entitlement to use water by each of the states is unreliable. Regardless of the individual issues each State may have with the structure and operation of the Law, what the Law of the River gives to each state is a measure of certainly. It provides a legal framework through which the issues faced on the River can be resolved. This paper will review the historical context of the development of the Law of the River, and in particular the negotiation of the Colorado River Compact, from an Upper Basin perspective. It will then use that historical perspective to underscore the motivation of the approach of all the states - not just the Upper Basin - to the complex issues we face on the River today. That motivation is to continue to preserve the security of the allocations for which we fought so hard.