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Last modified
10/26/2010 9:24:17 AM
Creation date
1/10/2008 8:51:42 AM
Metadata
Fields
Template:
SWSI
Basin
Statewide
Title
SWSI Phase 1 Report - Appendix D
Date
11/15/2004
Author
CWCB
SWSI - Doc Type
Final Report
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Often, great criticism is leveled against the Colorado representatives who were instrumental in the <br />framing of the several compacts to which the state is party. These criticisms range from the <br />accusation that they "gave our water away" to the charge that they were "short-sighted" and should <br />have been more cognizant of Colorado's tremendous natural resources and its consequent potential <br />for future growth and need for water. Certainly, the Compact negotiators were not blessed with <br />superhuman abilities and did, in fact, make some questionable decisions, but before judging them too <br />harshly it is imperative that the situation, as it existed at the time of negotiation, be understood. <br />The first area to examine is that of the prevailing legal mood in the U.S. Supreme Court with respect <br />to the equitable settlement of water controversies. The Supreme Court had decided many interstate <br />controversies, but only two cases pertained to the question of water and irrigation in the arid and <br />relatively unpopulated West. Colorado was a defendant in both of these cases. <br />The first case was Kansas v. Colorado, 185 U.S. 208; 206 U.S.46; (1901, 1907). This case <br />concerned the Arkansas River and its depletion by irrigation. From this case, the principle of <br />"equitable apportionment" was evolved, which could be construed to allow one state all or <br />substantially all of the waters of a stream in order to offset other advantages the other state may have. <br />This principle relied heavily on preserving existing developed uses, and the ramifications of this kind <br />of thinking were apparent when considering the state of development of Colorado as opposed to <br />California on the Colorado River. <br />The second landmark case which had great bearing on Colorado's negotiators was W,~ming v. <br />Colorado, 259 U.S. 419, 496; 260 U.S. l; (1922). This case concerned the waters of the Laramie <br />River, and the Supreme Court upheld the theory that when two contesting states both operate under <br />the doctrine of prior appropriation, then that doctrine can be applied on an interstate basis. Having <br />been severely limited in these two cases, Colorado's negotiators began to search for a more viable <br />way to protect Colorado's waters for future use. <br />The second constraint placed on the negotiators was the lack of good hydrologic data. For example, <br />in 1922 the historic records indicated a mean annual flow in the Colorado River at Lee Ferry of <br />15,000,000 acre-feet. We now know that the period of record available was a wet one and that the <br />long-term mean flow at Lee Ferry was approximately 13,000,000 acre-feet per year. In another <br />instance, the streams in the Republican River Compact were allocated, in some instances, on the <br />basis of less than ten years of record. History shows some of these to have been underestimated by <br />as much as $0%. <br />We see, then, that while the Compacts to which Colorado is a signatory state are restrictive, the <br />potential for much more damaging Court decisions existed. <br />With this brief background, the following summaries are presented. These summaries in no way are <br />conclusive or all-encompassing, as each Compact is a very complicated and difficult document. Any <br />decisions concerning any Compact should be made only after a thorough evaluation of the full <br />document. <br />
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