WSP10734

• File Number: 8200.900
• Description: California Colorado River Issues
• Basin: Colorado Mainstem
• Date: 1/30/1989
• Author: Warren J. Abbott
• Title: California Colorado River Issues - Overview of Colorado River Issues at 1989
• Water Supply Pro - Doc Type: Report/Study

. .

PaclJic Law Joumol I Vol. 19

The decree issued by the Supreme Court onc year aner the Ar;:ona
opinion contains scveral)mportant items sianificant to Calirarnia',
U5(' or the Colorado River. First, the Coun derined two key phrases.
The phrase "water controlled by the United States"' was defined as
the waler In lakes Mead. Mohavt'. and Havasu" . . . and all other
",alers in the mainstream below lee Ferry and within che United
Slales..... Consequently, the moment any Upper Basin water passes
lee Ferry, it becomes "waler controlled by the United Slalcs'" and
subjecl to the strictures or the decree and the Boulder Canyon Project
Act. irrespective or any purporled alreement between an Upper Basin
entity and a lower Basin enlity.
The Coun also defined "perrectcd riB,hu" to mean "a water right
acquired in accordance with slate law, which right has been exercised
by the actual diversion of a specific quantilY of water that has been
applied 10 a defined area of land or to definile municipal or industrial
works. . . . "., "Present perfected right" was defined as a perfected
right existing as of June 25, 1929, the erfective date of the Boulder
Canyon Project Acl." Of nole here is the fact thai nol all water
rights in the Lower Basin existing as of that crucial date were
prolected. For example, afler the dC'Cree any unused riparian rights
which were recognized under California law no longer existed. Sirn.
ilarly. any validly acquired appropriative righls which either had nol
been exercised by the key dare or not yet fully used would not be
or only partially recognized. Finally, in a lalC'r Colorado River case,
the Supreme Court noted that a.lthouzh one looks to state law for
the source of present perfected righls, the question of whether any
rights provided by state la..... conslitute present perrected rights within
the meaning of section 6 of the Boulder Canyon Project Act is one
of federal law."
Second, the Court enjoined the United States from releasing main.
stream Colorado River water other than in accordance with the
apporlionmenr among the stales as Set forth. In the event of a
shortage. however, the Court gave the Secretary of the Interior the
discretion to apporlion the available supply "after providing for
sati~faction or prcse"t perfected rights in the order of the priority
dates wilhout regard :to stale lines."'~ As a resull, in a shorlage year.

51. ~ilon. _. C,lifol'lli.. ]16 U.s. ]44) (1964) 119M decree).
52. ~ Id. " 341.
... ,"Id.
64. s" Br..n. ... Yt:lIm. .., U.S. HI, 311 n.n (1980).
M. Arizou... C.lirorni.. 315 U.S. at 341.

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the Secretary has the discretion to allocate the remaining supply.
after present perfected rights are cared for. to lower priorities under
the Seven Parry Agreement for domestic purposes if he so chooses.
The United States was additionally enjoined from releasing any water
to water userS other Ihan pursuant to valid contracts with Ihe
Secretary."
The Court also enjoined the sEates. The injunction Ilared. that the
States and the named California agencies (Metropolitan. Palo Verde.
Imperial, Coachella, City of Los Angeles. City of San Diego, and
Counly of San Diego) and all other users of mainstream water were
enjoined from diverling any such water without United States au-
thorization." The Court also stated Ihat the mainstream water used
within a parlicular state was to be charged to that state's apponion-
ment regardless of the purpose for which it was released."
As a final note on the decree. it was amended in 1979 to set forth
the present perfected righls in the three Lower Basin states." It also
set fOTth ,he "Federal EstablhhmenU' Present Perfected Rights'"
These rights established Ihe Lower Basin Indian Reservation water
rights. Unlike other users, the Indian Reservation retained their waler
rights even if those rights had not been exercised by June 25. 1929.
In addition. these reservation rights were subject to adjustment when
the boundaries.were finally determined.'IO
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5. Th~ Colorado Rill,r Basi" Proj<<t Act 011968

Arizona had long desired to construct a diversion works along the
Colorado River together with an aqueduct from the River to Phoenix
and on to Tucson. This dream had no hope of realization as long
as Arizona and California were feuding over Colorado River rights.
The Arizona v. California decision perhaps set the stage for the
development of the Central Arizona Project (CAP)." In 1968, after
the States had settled the water rights issue, Congress auth.oriz.ed the

66. 'd." 30.
61. Id." 341.
61. 'd." 343. .'
59. Arizon, t". Cali(O\'"nil. 439 U.S. 419 (1979) (Supplnnmtal Decrft).
70. 'd. .1 423. 421. 4H.36. .
'71. Sn N""'nlOn, #vprw nOle 6. Cb. XII (. brier hhtory or 1111, _n!Qle).

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