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<br />4 UDENWLR290
<br />4 U. Denv. Water L. Rev. 290
<br />(Cite as: 4 U. Denv. Water L. Rev. 290)
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<br />Page 11
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<br />Lower Division States had not agreed upon a compact. This, combined with disagreement between Arizona and California as
<br />to the meaning and effect of the Boulder Canyon Project Act, made water supplies for the Project uncertain.~t952,
<br />-'i~~~!iltCalifonpa to obtain a judicial determination providing such certainty. rFN771
<br />
<br />1\:h~,tfl'~e in the lawsuit was the 1.0 m.a.f.of water referenced in Article III(b), of the Compact. Arizona argued the Project
<br />had allocated 7.5 ni.a.f. of water from only the mainstem Colorado River, limiting California to 4.4 m.a.f. of this amount.
<br />California argued the allocation included Lower Basin tributaries, and therefore, the Court should equitably apportion
<br />mainstem waters in excess of 7.5 m.a.f. to California.:lR'J;,1~@(f3;the' Court ruled in favor of Arizona, holding Congress had
<br />enactedao!'.oomplete statutory apportionment" of only mainstem CO!2!:!l<:lo River water. [FN781 The Boulder Canyon Project
<br />Act does not explicitly make such an apportionment. PJ.t>wever, the Court found an implied apportionment based on
<br />congressional intent and the Act's delegation of authority to the Secretary of the Interior to allocate and distribute water
<br />through contracts.
<br />
<br />The Court emphasized the Secretary's discretion in making an initial contract allocation, further noting that the Lower Basin
<br />often refers to the Secretary as the "water master." However, the Court also emphasized the "significant limitations" on the
<br />Secretary's discretion once he makes that contractual allocation. rFN791 The Court noted that the Act limits the purposes for
<br />storing and releasing water. rFN801 The Act makes all contracts permanent, rFN811 and limits the revenues generated from
<br />those contracts. [FN8211il@;.!~e~,and'aU permittees, lioensees, and contractees, are subject to the Compast, rFN83t~;,and
<br />~~li,e€ot0Gan do nothing to upset or encroach upon the Compact's allocation of Colorado River water between the Upper and
<br />~"0;W('ebBasins.;' rFN841 Furthermore, the Act requires the Secretary to satisfy present perfected rights. rFN851 TIre"only real "
<br />'~e~.&ta.riatoperational discretion recognized by the Court is in the apportionment of shortages. rFN86]
<br />
<br />One year after its decision, the Court entered its Decree. rFN871 The *312 Decree, as an injunction, enforced the largely
<br />non-discretionary nature of the Secretary's operational authority, 'fheDeoree characterized all water below Lee Ferry and<in
<br />'illhe',etD:ted States, 'as "Water Controlled by the United.States," and enjoined the Secretary to distribute such water strictly in
<br />accordance with its terms. The Decree required the Secretary to release water only pursuant to valid contracts with water
<br />users, rFN88] and only under three circumstances: normal, [FN89] surplus, rFN901 and shortage. rFN911 1Jl~e,.c;J;I\l,e alpo
<br />;11e,qllired :the Secretary to charge any consumptive use of water to the state in which it is used, rFN921 and allowed the
<br />;;Secretary the authority to make unused water in one state available for use in another state, on a temporary basis. rFN931
<br />
<br />VIII. THE ~!5'6C8LORADO RIVER STORAGE PROJECT ACT
<br />Th~{)ompact negotiators understood that comprehensive storage development would be necessary to even out the wild
<br />tlnotuations in Colorado River flow and assure each Basin the security of water supplies necessary to reach their envision6d
<br />potential development. The Boulder Canyon Project Act authorized the Department of the Interior to study development of
<br />such a system, which the Department completed in 1946. Following the 19148 Upper Basin Compac*tlhelJpper Basin Stat~s
<br />looked to the federal government for the development of a comprehensive river management system. Their plan consisted of
<br />the federal government paying tQ':constructa series of reservoirs that would create a "bank account" of stored water to assure
<br />that the Upper Basin could meet its Article III( d) delivery obligation under the Compact, and thus allow each state to develop
<br />its entitlement to water in the Colorado River System.
<br />
<br />l~fjjf"S'e'i'the federal government enacted the 1956 Colorado River Storage Project Act rFN941 ("1956 Act"). The 1956
<br />Act authorized the construction of the ertfeMntLUnit, Ftamh'lg Gorge, Navajo, ,ana Glen *313 Canyon Dams, ~e-'so~called
<br />"holdover reservoirs, "Jo store and release water to the Lower Basin in satisfaction of the requirements of Article III( ~;of the
<br />,:,Compact.. These reservoirs allow the Upper Division States to develop their Colorado River entitlements fully, without the
<br />Lower Division States subjecting them to a "Compact Call." rFN951 The 1'956 Act also authorized, subject to subsequent
<br />appropriation,'several "participating projects," designed to satisfy more regional consumptive use demands, mostly irrigation.
<br />However, the government did not build many of these authorized participating projects because of environmental and
<br />financial feasibility problems. The 1956 Act also developed the Upper Colorado River Basin Fund, which credits power
<br />revenues generated from the facilities. A portion of this credit goes against costs of project repayment for irrigation
<br />components authorized by Congress. rFN96]
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<br />IX. lll\fI:\H'968 COLORADO RIVER BASIN PROJECT ACT
<br />In 1968, Congress and the states fftfther solidified the coordinated interstate operatipn of various facilities through the
<br />adoption of the Colorado River Basin Project Act rFN971 (" 1968 Act"). The 1968 Act assumed as a "national obligation" the
<br />provisrorr~ofwater to Mexico under the 1944~exicanWater Treaty. rFN98] The 1968 Achalsoauthorized the construction
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<br />@ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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