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I I I I I I I I I I I I I I I I t I I 0902 Session I: Western Water Trends and Directions adjudications. That is, what is the proper role for the state, and should the United States Government be giving advice or guidance regarding the proper role of the state? Another issue that is commonly raised in the McCarran Amendment or general stream adjudication cases is whether the lawsuit is sufficiently comprehensive to adjudicate all the relative rights to the river system or other source? Unfortunately, the courts are going all over the place with this issue. Hydrology has progressed faster than federal policy on water, and we know more and more about the interrelationship of groundwater and surface water. It seems as though the more we learn about hydrology, the more complicated it becomes. We know that, with few exceptions, groundwater and surface water are interrelated. It is just a question of time before the impacts of one use on the other will be felt. So what did Congress have in mind, then, when it said that immunity from suit is waived only if there is a comprehensIve general stream adjudication determining all the rights in the river system or the source? What is a river system? Does it have to include the groundwater as well as surface water in order for the United States' sovereign immunity waiver to be valid? Some courts say "yes" and others say "no." The 9th Circuit, in United States v. Oregon, held that our understanding of the hydrologic relationship between groundwater and surface water still is so new that the Court would not require, under the McCarran Amendment, that the surface water and the interrelated groundwater be adjudicated as the same river source in order for sovereign immunity to be waived. Now, I think that's a policy question that Congress needs to think about. Was that what Congress had in mind, or are we going to piecemeal adjudication in these state courts? First, we are going to do the surface water and then we're going to do the groundwater, maybe, someday? What happens when the groundwater impedes the surface water or the surface water starts affecting the groundwater? What are we going to do about that? We have done something piecemeal. Is that what Congress had in mind in the McCarran Amendment? I think not. Of course, in New Mexico we are doing it right. We have, in the Aamodt16 case, a general stream adjudication going on in which both the surface waters and the interrelated groundwater are being adjudicated. I think that this is what Congress had in mind under the McCarran Amendment. Now, interestingly, it is not always clear whether all the tributaries to the river system have to be included in order for Congress' waiver of immunity to be valid under the McCarran Amendment. Courts have gone both ways on J6 537 F.2d 1102 (1976), cert. denied, 429 U.S. 1121 (1977). 21