9407

• UCREFRP Catalog Number: 9407
• Author: Water Education Foundation.
• Title: 75th Anniversary Colorado River Compact Symposium Proceedings.
• USFW Year: 1997.
• USFW - Doc Type: \
• Copyright Material: NO

about came out of their chairs because you could see
the Compact just collapsing right then and there in
the 22nd meeting. I think, fortunately for the
Compact, Hoover came to Carpenter's defense and
told Hamale that that reservation of rights clause was
not going to be in the Compact. Hoover said
basically that Hamale's suggestion would, in essence,
destroy the fundamental basis of the Compact, which
was an allocation of unappropriated rights - a right
of future use to the states. And so that didn't get into
the Compact.
But the Compact did, in fact, deal with a number
of federal rights, and I think driven by this exchange
of views in that 22nd meeting. Article VIII, as I
talked about before, vested all prior perfected rights.
Articles III(a) and III(b), as I mentioned, allocated
the right of future consumptive use to the states.
Article III(c) reserved the United States treaty
obligations to Mexico, but specified how those rights
might be satisfied - perhaps not with the clarity that
some of us might wish. Article VII left open the
question of tribal reserved rights, although in my
view, it made clear that those rights come out of the
basin in which those tribal rights are used for
compact allocation purposes. Article IV basically
stated and confirmed that the river was not navigable,
in fact, but reserved the right to Congress to disavow
that disclaimer if it wanted. And finally, Article IV(c)
specifically left to the states regulation of rights and
the allocation of water within those states. Carpenter,
by that paragraph, clearly achieved what he sought in
terms of preserving state autonomy to regulate water.
He wanted to avoid the interstate application of the
prior appropriation doctrine - he strongly felt that it
should apply in-state - and I think he accomplished
that.
Hamale later came back testifying before Congtess
on the Boulder Canyon Project Act and asserted that
Congress should include the reservation of federal
rights clause in there. And again, he lost on that issue.
The 1928 Boulder Canyon Project Act specifically
and very clearly subjects the rights of the federal
government to the provisions of the Compact. It
gives the states an official advisory role with regard to
the activities of the secretary ofInterior under the act,
and it specifically disclaims any interference with the
rights of the states to develop laws for their internal
regulation.
Avoiding litigation clearly was the fourth goal of
Carpenter's, and I think it was likewise a goal of each
of the states. We're firmly committed to negotiating
issues rather than litigating among ourselves. I think
we all realize the mess that we would get ourselves
into if we had interstate litigation on the Colorado
River.

Finally, Carpenter and others had a vision about
comprehensive development. It's clear from the
Compact discussions when you look at the minutes
that they discussed what the delivery obligations
might be - whether there should be minimums from
the Upper Basin. I think there was a clear, implicit
understanding that there would have to be develop-
ment in the Upper Basin in order to allow the Upper
Basin to meet the 10-year rolling average. There was
no one-year minimum that was established. It was
clear that the Upper Basin could deliver zero water in
anyone year, although gravity, I think, would prevent
that from happening.
But as long as the
Upper Basin makes the
10-year rolling average,
that's what we make.
But the comprehensive
reservoir development
was necessary in order
to provide that water
on a sustainable basis.
The view was
underscored again in
the Boulder Canyon
Project Act which
authorized the secretary
of Interior to make a
comprehensive
investigation about
water development opportunities in all of the basin
states. It clearly authorized Hoover Dam and the AlI-
American Canal, but also contemplated this overall
investigation that later resulted in the 1956 Colorado
River Storage Project Act and the 1968 Colorado
River Basin Project Act.
What were the things that the negotiators didn't
anticipate? We talked about water supply. I went
through the exercise of preparing a chart in the paper
that compares what I felt the negotiators in 1922
were looking at in terms of water supply vs. what we
now know. And it was an interesting exercise - I had
a number of conversations with Wayne Cook about
what the numbers would be. One of the things I
learned was that there were numbers allover the place
- then and now. And when you look at the numbers
after the negotiation, I think there was a little bit of
puffing going on when the negotiators went back to
their states and tried to convince the state legislatures
to ratify the Compact, because they all came back
saying, "Don't worry, plenty of water surplus. We
can do it." It's pretty clear now we're close to what
the water supply is, given the uses that are now in
the basin, depending on what hydrology you want
to use.

I think that the

STATES'
PERSPECTIVES

Compact will continue

to serve as a basis for

negotiation between

the states on the issues

that we face in the

future.

- James Lochhead

SYMPOSIUM
PROCEEDINGS
MAy 1997

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