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

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Supreme Court held that Kansas, as a downstream state, did not have the right to all of the water in the
Arkansas River, undepleted by Colorado. But the Court also held that Colorado, as the state of origin, did
not have the right to retain all the water within its borders. Although the Court dismissed the Kansas
claims, it stated it would, if necessary, impose a division of water without regard to the relative dates of
use in the two states.

In Wyoming v. Colorado,15 Colorado repeated the sovereignty arguments it had made in the
Kansas case, and also argued that even under the equitable apportionment doctrine Colorado had the
right to all the water in the Laramie River. However, the Court would not follow its previous ruling in
Kansas, if the two states both followed the prior appropriation doctrine (Kansas water law is based on the
riparian doctrine). Instead, the Court applied the prior appropriation doctrine in an interstate basis.

Therefore, in the Compact negotiations Colorado sought to make sure that the rule in the
Wyoming case would never be used to deprive the Upper Basin of its right of development. 16 It wanted

15 259 U.S. 419 (1922).

16In his report on the Compact, Delph Carpenter discussed his view of the effect of the case, and how the
Compact had resolved the issue:

The doctrine so announced [in Wyoming v. Colorado] leaves the Western States to a rivalry and a contest
of speed for future development. The upper State has but one alternative, that of using every means to
retard development in the lower State until the uses within the upper State have reached their maximum.
The States may avoid this unfortunate situation by determining their respective rights by interstate compact
before future development in either State, thus permitting freedom of developmeut in the lower State
without injury to future growth in the upper.

By the attached compact the objectionable features ofleaving the destiny of the States to a wild scramble in
a contest of speed for fIrst development are avoided. The future uses within the upper State, according to
its growing necessities, are protected without interfeting with a similar growth in the lower state. Each
State may proceed in an orderly manner in pace with the normal course of events, free from any cloud of
threatened penalties.

. . .

Further development on the lower river will in no manner affect this apportionment or impair the right of the
upper States to consume their apportionment whenever their necessities require. Any immense reservoir
hereafter constructed on the lower river cannot be the basis of a preferred claim which will interfere with the
future development of the Upper Basin. The development in the Lower Basin will be commed to the
apportionment made to that basin, with the permissible increase. Any excess of development cannot infringe
upon the reservation perpetually set apart to the upper territory. There can be no rivalry or contest of speed
in the development of the two basins. Priority of development in the Lower Basin will give no preference of
right as against the apportionment to the Upper Basin.

...

[The compact] protects our development from adverse claims on account of any great reservoir or other
construction on the lower river. It removes all excuses for embargoes upon our future development and
leaves us free to develop our territory in the manner and at the times our necessities may require.

Carpenter Report, and Testimony before Congress on the Boulder Canyon Project Act, H.R. 2903, February 20,