BOARD01417

• Board Meeting Date: 5/24/1999
• Description: WSP Section - Colorado River Basin Issues - Upper Colorado River Commissioner's Report - Historic and Continuing Interest of the Upper Basin in Preserving Secure Interstate Allocations
• Board Meetings - Doc Type: Memo

The Upper Basin's desire for a perpetual allocation was achieved in the final Compact. Article
III Ca) apportions exclusive beneficial use ofwatcr to each basin "in perpetuity." The Compact has no
time limit on this provision.13 Thus, the compact renders unnecessary a race for development between
Upper and Lower Basins. The Upper Basin is assured - and has relied on the fact - that the Lower
Basin is entitled only to a fmite share of the River. The Upper Basin is free to develop water as
economic need dictates, regardless of how long that might take. The Upper Basin is not required to
answer questions about the pace of its development, or, more importantly, to undertake premature or
environmentally destructive water project development simply to hoard water for future need as against
the Lower Basin.

2. The Upper Basin sought to eliminate the operation of the prior appropriation doctrine
applied on an interstate basis. The Upper Basin was well aware of the uncertainties of interstate water
litigation. In Kansas v. Colorado,14 Colorado asserted its sovereign right to fully deplete the river. The

continue to be not only a nation of equal Statcs with equal powers and equal opportunity of exercising
those powers but as well "an indestructible Union, composed of indestructible States."

13 During the negotiation of the Compact, Carpenter stated with regard to a proposed time limit on the
Compact:

There is no impending disaster above. That country should develop along its natural lines. It is to the
welfare of the river that it should not develop suddenly above, and it is to the welfare of the river that it
should develop suddenly below. Now, the span of time should be sufficient in the growth of the basin
generally, so that each individual fanner, as well as each individual project should be protected. Thus,
each may start naturally, and in such a way that when he does develop a new fann or a new project the
country will be ready and the returns from the production will be sufficient, so that he may pay for the
burden of the development. . . That will servC to illustrate the reasons why upper development will come
gradually. The development will not be all at once. It will be promoted by need. C14~ Meeting of the
Compact Commission, Santa Fe, New Mexico, November 14, 1922)

. . .

The whole theory of the Compact is this: That the water apportioned to each basin is adequate not only for
all of its present uses, but for the increase of development within each basin. C24~ Meeting of the Compact
Commission, Santa Fe, New Mexico, November 23,1922)

After the Compact was fmalized, Colorado officials emphasized the perpetual nature of the allocation in urging
ratification by the Colorado legislature. In his report 00 the Compact to the Governor, December IS, 1922,
Carpenter stated:

The apportionment to the upper territory is perpetual. It is in no manner affected by subsequent
development. It is not required that the water shall be used within any prescribed period.
...

Broadly speaking, from a Colorado viewpoint, the compact perpetually sets apart and withholds for the benefit
of Colorado a preferred right to utilize the waters of the river within this State to the extent of our present and
future necessities.

14206 U.S. 47 CI907).

e

e

e