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4 UDENWLR 290 4 U. Denv. Water L. Rev. 290 (Cite as: 4 U. Denv. Water L. Rev. 290) Page 4 A proposal made in 1920 by Delph Carpenter of Colorado to the League of the Southwest ("League"), in his capacity as legal advisor to Colorado's Governor, broke the stalemate. rFN131 Carpenter urged the states to use the powers retained by them under the Compact Clause of the United States Constitution [FN141 to equitably apportion the right to use the waters of the Basin among them. Carpenter designed his proposal to protect the security of future development opportunity in the other states, while allowing development for the benefit of California to proceed. The proposal provided the vehicle for the League to urge Congress to construct an All-American Canal and flood control storage on the lower Colorado River, with a compact as a necessary prerequisite. [FN151 Hence in 1921, Congress authorized the appointment of a federal commissioner and approved the negotiation of an interstate compact. rFN161 Carpenter did not make his proposal out of thin air, nor did he do so without a clear understanding of the goals he wanted to achieve in the subsequent compact negotiations. He had in mind several basic principles he thought a compact could establish, which ultimately would inure to the benefit of the Upper Basin and to Colorado in particular. First, Carpenter sought assurance that Colorado could develop a share of the Colorado River in perpetuity, as needs and economic conditions dictated. Second, although he was a staunch proponent of the prior appropriation doctrine and the belief that a water right is a property right, Carpenter sought to eliminate the operation of the prior appropriation doctrine as applied on an interstate basis. Third, Carpenter was adamant in his defense of state sovereignty and sought to preserve state autonomy over intrastate water appropriation and administration. Fourth, he felt strongly that *295 litigation was the interstate equivalent of war and sought to avoid the threat of litigation among the states as well as between the states and the federal government. Finally, Carpenter saw development of the Colorado River as key to reliability and security of supply and sought to create a foundation for its comprehensive development and regulation. Although the principles ofthe Upper Basin in proposing and negotiating the compact were clear, it is worthwhile discussing them in some detail, since the same motivations underlie the policy positions of many states today. A. The Upper Basin Sought the Assurance of the Ability to Develop a Share of the Colorado River in Perpetuity, as Needs and Economic Conditions Dictate Delph Carpenter looked at early United States Supreme Court cases and studied the constitutional foundation of the relationships between state and federal governments. In his view, under international law, a lower nation could not arrest the development of an upper nation and deny to its inhabitants the use of water. However, while Carpenter felt the upper nation was entitled to make full use of waters, the nations, as a matter of international comity, could allocate waters through a treaty. rFN171 Carpenter believed that before formation of the Union, the territories were independent sovereigns and surrendered only specific powers to the federal government. Under the Tenth Amendment to the United States Constitution, the states retained specific powers not surrendered. The power to compact was founded upon the same principle as the power in the Supreme Court to settle controversies between the states, or between the United States and a state. These powers assume the respective sovereignty of the states and the federal government. rFN181 As a result of these sovereign powers, Carpenter believed the states could, with the consent of Congress under the Compact Clause, agree to a perpetual allocation of water. [FN191 Through this allocation, Carpenter's intent was to preserve *296 the Upper Basin's right to develop water resources as economic needs dictated. [FN201 ~al'eotnpact achieved the Upper Basin's desire for a perpetual allocation. Article I1I(a) of the Compact apportiol}s e~lusive'beneficial use of water to each Basin "in perpetuity" despite extensive discussions of possible time limits in the Ii6gotiations. rFN211 In the ultimate consent to the Compact, the congressional debates underscore the clear Mfefit of Ooagnessthat the Compact effectuated an equitable, perpetual allocation between the Upper and Lower Basins. rFN221 After finalization of the Compact, ~t:fiter'emphasized the perpetual nature of the allocation in urging ratification of the Compact by the Colorado legislature, stating: The apportionment to the upper territory is perpetual. It is in no manner affected by subsequent development. It is not required that the water shall be used within any prescribed period. Broadly speaking, from a Colorado viewpoint, the compact perpetually sets apart and withholds for the benefit of Colorado a *297 preferred right to utilize the waters of the river within this State to the extent of our present and future necessities. (FN231 @ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.