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<br />United States entered into a treaty with Mexico which pro- <br />mised the delivery of 1.5 MAF/year. This promise was made <br />even though evidence was fast accumulating that the virgin <br />flows estimate on which the 1922 Compact was based was abnor- <br />mally high. <br /> <br />d. Unresolved Legal Issues <br />(l) Mutual Mistake. <br /> <br />There is a good argument under contract <br />law that Article III(d) should not be enforced so as to allo- <br />cate the reduced estimates of the Colorado River's virgin <br />flows to the Upper Basin. Under contract law, if several <br />parties share in a common misunderstanding and enter a <br />contract based on that mutual mistake, the contract can be <br />nullified, or if possible, re-written by a court to conform <br />with the true facts. The overestimation of the Colorado <br />River's virgin flows at the time the 1922 Compact was consum- <br />mated could be considered such a mutual mistake, and could be <br />asserted by the Upper Basin to lower its delivery obligations <br />under Article III paragraphs (d) and (c). Such a reformation <br />of the 1922 Compact would correspondingly increase the amount <br />of water available for development in the Upper Basin. <br /> <br />(2) Upper Basin Share of Mexico Burden <br /> <br />There are a number of other simmering <br />compact issues which concern how much water, if any, will be <br />tacked on to the Upper Basin's delivery obligation at Lee <br />Ferry in order to satisfy the Mexico Burden. The resolution <br />of these issues could also significantly affect the availabi- <br />lity of water in the Upper Basin. <br /> <br />These issues primarily relate to the definition of <br />"surplus" water under Article III(c). Recall that the Upper <br />Basin is not obligated to contribute to the Mexico Burden if <br />such a "surplus" exists. <br /> <br />The Upper Basin would define this trigger in terms of <br />basin-wide virgin flows v. basin-wide consumption. So 10ng <br />as basin-wide flows exceeded basin-wide consumption, a <br />"surplus" would exist, and the Upper Basin would not be obli- , <br />gated to Me.xico. For example, in 1975 the Lower Basin con- $.- <br />sumed 10.695 MAF, exclusive of evaporation and channel <br />losses, while the Upper Basin consumed only 3.116 MAF, again <br />not counting evaporation and channel losses, for basin-wide <br />comsumption of 13.811 MAF. (Bureau of Reclamation, "Colorado <br />River System Consumptive Uses and 10ses Report 1971-1975"). <br />Assuming that the virgin flows at Lee Ferry in that year were <br />14.0 MAF and that the virgin flows of the Lower Basin tribu- <br />taries were 2.0 MAF, for a basin flows of 17.0 MAF, there <br />would be a surplus of about 3.0 MAF, more than enough to <br /> <br />-12- <br />