Western Water Policy Review Advisory River Basin Studies Commission (1997) 7-1-1997 Upper Basins' Political Conundrum: A Deal is Not a Deal J. William McDonald Follow this and additional works at: https://digitalrepository.unm.edu/law_service_westernwater_rbs University of New Mexico UNM Digital Repository Recommended Citation McDonald, J. William. "Upper Basins' Political Conundrum: A Deal is Not a Deal." (1997). https://digitalrepository.unm.edu/law_service_westernwater_rbs/27 This Report is brought to you for free and open access by the Western Water Policy Review Advisory Commission (1997) at UNM Digital Repository. It has been accepted for inclusion in River Basin Studies by an authorized administrator of UNM Digital Repository. For more information, please contact [email protected], [email protected], [email protected]. TheUpperBasins’ PoliticalConundrum ADealisNotaDeal J.WilliamMcDonald U.S.DepartmentoftheInterior ReporttotheWesternWater PolicyReviewAdvisoryCommission The Upper Basins’ Political Conundrum: A Deal is Not a Deal J. William McDonald U.S. Department of the Interior Report to the Western Water Policy Review Advisory Commission July 1997 The Western Water Policy Review Advisory Commission Under the Western Water Policy Review Act of 1992 (P.L. 102-575, Title XXX), Congress directed the President to undertake a comprehensive review of Federal activities in the 19 Western States that directly or indirectly affect the allocation and use of water resources, whether surface or subsurface, and to submit a report of findings to the congressional committees having jurisdiction over Federal Water Programs. As directed by the statute, the President appointed the Western Water Policy Review Advisory Commission. The Commission was composed of 22 members, 10 appointed by the President, including the Secretary of the Interior and the Secretary of the Army, and 12 members of Congress serving ex-officio by virtue of being the chair or ranking minority member of the 6 congressional committees and subcommittees with jurisdiction over the appropriations and programs of water resources agencies. A complete roster is provided below. Commission Membership Denise Fort, Chair Albuquerque, New Mexico Appointed Members: Huali Chai Patrick O'Toole Secretary of the Interior San Jose, California Savery, Wyoming Washington, D.C. Represented by: John H. Davidson Jack Robertson Joe Sax, September 1995 - December 1996 Vermillion, South Dakota Portland, Oregon Patricia J. Beneke, December 1996 - John Echohawk Kenneth L. Salazar Secretary of the Army Boulder, Colorado Denver, Colorado Washington, DC Represented by: Janet Neuman Dr. John H. Zirschky Portland, Oregon Members of Congress (Ex-officio Members): U.S. Senate: Committee on Energy and Natural Resources Hon. Frank Murkowski, Chairman Hon. Dale Bumpers, Ranking Minority Member Hon. J. Bennett Johnston (September 1995 to January 1997) U.S. Senate: Subcommittee on Water and Power, Committee on Energy and Natural Resources Hon. Jon Kyl, Chairman Hon. Daniel K. Akaka, Ranking Minority Member Hon. Larry E. Craig (September 1995 to January 1997) Hon. Bill Bradley (September 1995 to January 1997) U.S. Senate: Committee on Appropriations Hon. Ted Stevens, Chairman Hon. Robert C. Byrd, Ranking Minority Member Hon. Mark O. Hatfield (September 1995 to January 1997) U.S. House of Representatives: Committee on Resources Hon. Don Young, Chairman Hon. George Miller, Ranking Minority Member U.S. House of Representatives: Committee on Transportation and Infrastructure Hon. Bud Shuster, Chairman Hon. James L. Oberstar, Ranking Minority Member U.S. House of Representatives: Committee on Appropriations Hon. Bob Livingston, Chairman Hon. David R. Obey, Ranking Minority Member This is an Independent Report to the Commission The report published herein was prepared for the Commission as part of its information gathering activity. The views, conclusions, and recommendations are those of the author(s) and are not intended to represent the views of the Commission, the Administration, or Members of Congress serving on the Commission. Publication by the Commission does not imply endorsement of the author's findings or recommendations. This report is published to share with the public the information and ideas gathered and considered by the Commission in its deliberations. The Commission's views, conclusions, and recommendations will be set forth in the Commission's own report. Additional copies of this publication may be obtained from the National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia, 22161; phone 703-487-4650. Preface This paper has been prepared at the request of the Western Water Policy Review Advisory Commission. Formation of the Commission was authorized and directed by the Western Water Policy Review Act of 1992 (Pub. L. No. 102-575, Title XXX, 106 Stat. 4693). Pursuant to section 3003(a) of the Act, the President is directed: ...to undertake a comprehensive review of Federal activities in the nineteen Western States which directly or indirectly affect the allocation and use of water resources, and to submit a report on ... [his] findings, together with recommendations, if any, to ... [certain committees of Congress]. In turn, section 3004(a) of the Act provides that the Commission is "to assist in the preparation and review" of this report. Section 3005 tasks the Commission with reviewing and examining, among other things: • present and anticipated water resources problems in the West, • current and proposed Federal water resources programs, • the history, use, and effectiveness of various institutional arrangements to address problems of water use and development, and • the legal regime governing the development and use of water and the respective roles of state and Federal governments over the allocation and use of water. The conclusions and recommendations presented in this paper are those of the author alone, not of the Commission. This paper is but one of many studies, reports, and other sources of information and analysis to which the Commission will look as it assists in the preparation of the report which the President is required to submit. The first edition of this paper was dated May, 1997. This second edition differs from the first only in that footnotes 55-58 have been inserted (they misprinted in the first edition) and the format of a few statutory citations in other footnotes has been corrected. The text of the paper is unchanged. iii Acknowledgments First and foremost, I would like to acknowledge the able assistance provided by Spencer J. Shepherd, on the staff of the Western Water Policy Review Advisory Commission, in locating and gathering together numerous references for my use. His timely research and prompt responses to my many requests were of great benefit. In addition, he proofed all statutory and case law citations for the final paper. In this regard, thanks are also due to Jennifer Holman, a law student intern from the University of California at Davis in the Pacific-Southwest Region, Office of the Solicitor, U.S. Department of the Interior, who originally researched many of the citations to the statutes and cases referenced in this paper. I would also like to recognize the extensive help provided by Wayne Cook, Executive Director, and Jane Bird, General Counsel, Upper Colorado River Commission, in identifying resources in the Commission's library and responding to numerous inquiries for data. I also want to acknowledge the assistance of numerous personnel in the Mid-Pacific, Lower Colorado, Upper Colorado, and Great Plains Regions of the U.S. Bureau of Reclamation who provided a wide variety of data to me, always on short notice. Finally, my thanks to folks in several other federal agencies, and state agencies, who provided background materials to refresh my fading memory. To my colleagues Marlene Mills and Steve Jones, Pacific-Southwest Region, Office of the Solicitor, U.S. Department of the Interior, I would like to express my thanks for their tireless help in typing the final manuscript. The care with which they attended to the necessary details is greatly appreciated. A draft of this paper was provided to a number of people for review. To each of them, I would like to extend my thanks for the thought provoking comments which were received. The final paper reflects changes made in response to most, but not all, of these comments and it is undoubtedly a better product for it. To the extent that some reviewers' comments have not been accommodated, this shortsightedness is mine and mine alone. Finally, my thanks to Don Glaser, the Commission's Executive Director, for having invited me to prepare this research paper. I trust that the Commission finds this paper useful in informing its deliberations. iv Introduction As always, the analyses, conclusions, and recommendations presented in a paper such as this are mine alone, not those of my past or present employers, the interstate compact administrations and water organizations of which I have been a member in the past, nor of those who assisted me with the research for this paper. J. William McDonald, B.S., The Colorado College (1968); J.D., Univ. of Chicago (1971); M.S., University of Michigan (1976). Admitted to the Colorado Bar in 1971. Former Director, Colorado Water Conservation Board, State of Colorado (1979-1990), and former Assistant Commissioner for Resources Management, Bureau of Reclamation, U.S. Department of the Interior (1990-1994). Presently an attorney in the Pacific-Southwest