8014

• UCREFRP Catalog Number: 8014
• Author: McDonald, W. J.
• Title: The Upper Basins' Political Conundrum
• USFW Year: 1997.
• USFW - Doc Type: A Deal is Not a Deal.
• Copyright Material: NO

The Upper Basins' Political Conundrum: A Deal is Not a Deal
victorious when the Court held, in a 1963 opinion's which was implemented
by a 1964 decree," that, among other things:
(1) Congress may, under its navigation and general welfare powers,
apportion interstate streams by legislation.
(2) By enacting the Boulder Canyon Project Act, Congress exercised this
power by "apportioning" 4.4 [million acre-feet] to California in the
limitation provision [of the act) and specifying Arizona's and Nevada's
shares [2.8 and .3 million acre-feet, respectively) through the authorization
of a lower basin compact. Furthermore, Congress delegated to the
Secretary of the Interior the power to contract for storage and delivery of
[Boulder Canyon] project waters, and the Secretary then extended [sic]
contracts reflecting the authorized shares.
(3) Federal law controls both the interstate and intrastate distribution of
[Boulder Canyon] project waters, preempting state water law. ...
The opinion demonstrated that the Court prefers congressional allocations
of interstate waters to playing the role of a trial court in complex litigation.
The Court strained to find the federal power to allocate water among states
and that it had been exercised.'S
Thus did the Court affirm the power of Congress to apportion the waters of an
interstate stream. The Boulder Canyon Project Act is, however, the only time
that this has occurred.
Having garnered 2.8 million acre-feet per year from the mainstem of the
Colorado River,79 Arizona returned to the halls of Congress to seek anew the
's Arizona v. California, 373 U.S. 546 (1963) (Douglas, J., dissent and Harlan, J., joined
by Douglas and Stewart, JJ., dissenting separately).
" Arizona v. California, 376 U.S. 340 (1964) (Harlan and Stewart, JJ., dissent).
7e D. GETCHES, supra note 5, at 414-415.
79 -Much disputed, depending upon which basin state one is representing, is whether the
Court's opinion in Arizona v. California does or does not stand for the proposition that water
arising in Arizona in the tributaries to the Colorado River (e.g., the Bill Williams, Little
Colorado, and Gila Rivers) is available to Arizona in addition to the 2.8 million acre-feet
allocated to it by Congress from the mainstem. This dispute arises because language in the
opinion, which addressed only the Boulder Canyon Project Act, arguably can be cited as
supporting this result, yet the compact, which the Court did not purport to interpret,
apportions the beneficial consumptive use of the "Colorado River System," which term means
"that portion of the Colorado river and its tributaries within the United States ..." (Art. II(a)).
24

t
t
1

t

[~