PUB00161

• Year: 2001
• Title: an Upper basin Perspective on Califonia's Claims to Water from the Colorado River
• CWCB Section: Administration
• Author: James S. Lochhead
• Description: an Upper basin Perspective on Califonia's Claims to Water from the Colorado River
• Publications - Doc Type: Legal Analysis

;

4 UDENWLR 290
4 U. Denv. Water L. Rev. 290
(Cite as: 4 U. Denv. Water L. Rev. 290)

Page 8

Carpenter had experience in the vagaries of interstate Supreme *304 Court litigation and a fear of federal intrusion. [FN511
He saw the mechanism of an interstate compact as a way to settle differences and avoid protracted and expensive litigation,
both among the states, and between the states and the federal government. [FN521 Carpenter stated the following:
hsuitht<.tweenthe States is.but a substitute for war. It is the last resort, and should not be resorted to until all avenues of
settlement by compact have been exhausted. It has been suggested that the Supreme Court should announce the principle that
no suit between the States would be entertained without a preliminary showing that reasonable efforts had been made by the
complaining State to compose the differences between it and the defendant State by mutual agreement or interstate compact.
[FN531 Carpenter also stated:
The Colorado River Compact was conceived and concluded for the purpose of preserving the autonomy of the states, of
defining the respective jurisdictions of the states and of the United States and of assuring the peace and future prosperity of
an immense part of our national territory. With it there will be no overriding of state authority by national agencies.
Otherwise, interstate and state-national conflict, strife, rivalry and interminable litigation will be inevitable. [FN541 Article I
of the Compact does, in fact, include as part of its purposes, "to promote interstate comity" and "to remove causes of present
and future controversies." [FN551

E. The Upper Basin Sought to Create a Foundation for the Comprehensive Development and Management of the Colorado
River

California's primary motivation in entering compact negotiations was the prospect of gaining political support for
construction of the All-American Canal and a large reservoir on the lower Colorado River to control floods, generate power,
and regulate water supply. However, all of the Commissioners were aware of the wildly fluctuating nature of the Colorado
River flow, and the need for comprehensive reservoir development to achieve security in any allocation among the states. In
his opening remarks to the Commission at its first meeting, Hoover said:
The problem is not as simple as might appear on the surface for while there is possibly ample water in the river for all
purposes if *305 adequate storage be undertaken, there is not a sufficient supply of water to meet all claims unless there is
some definite program of water conservation.

. . . [I]t may develop in the course of our inquiry that there is a deficiency of water in the Colorado River unless we assume
adequate storage. There may be a surplus if storage is provided. Therefore, the solution of the whole problem may well be
contingent on storage.

It would seem to me that it would be a great misfortune if we did not give to Congress and to the country a broad project
for development of the Colorado River as a whole. . . . [FN561

Later in the negotiations, at the thirteenth through sixteenth meetings, the negotiators reached the heart of the issues in
dividing the waters. They discussed how much water to allocate each basin, what types of delivery guarantee the Upper
Basin should make, and over what period to measure the delivery obligation.

The fIrst agreement reached was the measuring point--Lee Ferry. [FN571 The Commissioners then turned to the concept of
averaging. Carpenter proposed that the Upper Basin average its delivery obligation over a period of ten years, recognizing
that storage in the Upper Basin would be a necessary prerequisite to meeting that obligation. He stated:
[A] consideration of the stream flow tables. . . indicates that a ten year period gave a fair and reasonably accurate average
of the flow of the river, taking both high and low cycles, and that a ten year period would reach into both cycles and largely
include them, and that as the future development in both the upper and the lower basin must rely upon storage, the storage
facilities would care for that rise and fall.

[A]ny student of the river must realize that the future development in both areas will be that predicated upon the
construction of reservoirs. Nevertheless, we have no power to say by whom these reservoirs shall be constructed, in what
localities or when they shall be constructed. That should be left free to both communities to use such instrumentalities as
may be at hand, and the division of the water *306 should be so made that either area may build, or neglect to build, of its
own notion, and as it may believe construction or lack of construction is at anyone time justified.

lW~~,"'1!tafe"!i1:l6St.'tPdssibIe..safeguai'd'for,the.lower, states to ..insW~lli.""tle-t*ery at Lee's. Ferry within reasonable inclusive
0\:J1i'f_~1t'1ffofu'yearto':yearwould be the immediate ~8t>Hiertt ofthe reservoir storage of the upper area. [FN581

@ 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.