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L~ The Colorado River Basin: The Agreements and the Resulu The Colorado River Com act38 does not allocate the waters of the "Colorado P River System" 39 to the individual states in the basin. Rather, it apportions "in perpetuity" ?.5 million acre-feet per annum of "beneficial consumptive use" to the "Upper Basin" and to the "Lower Basin.i40 Having done this, it then imposes on the Upper Division States the obligation not to cause the flow of the Colorado River at Lee Ferry, Arizona,41 to be depleted below a certain amount.42 These two features of the compact, along with certain other provisions, were intended to bring legal certainty as to what is available for beneficial consumptive use in each basin.` The compact does not even mention, let alone promise, federally financed water resources development either to the Upper or the Lower Division States. Thus, a means of financing water projects still had to be found by water users in both basins. Because of then unresolved differences between Arizona and California about what their respective shares of the Lower Basin apportionment should be, Arizona was the lone state which did not ratify the compact when negotiations were completed.`'a This left the compact in limbo, since by its terms it could not take effect until it was ratified by all seven basin states and Ri d l i C l ~ ver ora Co nafter o o orado Riuer Compact in T. WITHER, supra note 36 [here Compact]. ~`' The compact defines the "... Colorado River System ... [as] that portion of the Colorado River and its tributaries within the United States of America." Id. art. II(a). a° Id. art. III(a). The Lower Basin is then given the right to increase its beneficial consumptive use by an additional 1 million acre-feet per annum. Id. art. III(b). a' "Lee Ferry" is a point on the mainstem one mile below the mouth of the Paris River, which in turn is about 15 miles downstream from the present Glen Canyon Dam. Id. art. II(e). The "Upper Basin" and "Lower Basin" are defined as the drainage areas of the Colorado River System above and below, respectively, Lee Ferry and the areas outside of the drainage area of the Colorado River System which are "beneficially served" by waters diverted from above or below, respectively, Lee Ferry. The latter component of these definitions recognizes that major transbasin diversions are made out of the Colorado River System. Id. arts II(fl, II(g). `~ The compact provides that: "The States of the Upper Division will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre-feet for any period of ten consecutive years reckoned in continuing progressive series ...." Id. art. III(d). '13 The compact has arguably left certain matters unsettled principally because the flow of the river appears to be substantially less than was assumed to be the case at the time the compact was being negotiated. Based upon the 25 year period of record then available, the average annual virgin flow of the river at Lee Ferry appeared to be about 16.8 million acre- feet. However, from 1922-1996, the average annual virgin flow at Lee Ferry has only been I 14.2 million acre-feet. UPPER COLORADO RIVER COMMISSION, supra note 33, at 25-26. Thus, the legal certainty sought by the Upper Division States may not, in retrospect, have been achieved. See, e.g., Getches, Competing Demands for the Colorado River, 56 U. COLO. L. REV. 413, 415-427 (1985) and Carlson and Boles, suprn note 19. u The other six states' acts of ratification are cited in T. WITHER, supra note 36, at 59. 17