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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The comprehensive study authorized in 1928 was delayed by the Depression and by World War
II. When the study was completed in 1947, it recommended that the Upper Basin states divide the waters
among themselves, so as to allow for the interstate development to occur. In 1948, the Upper Basin
States reached agreement. The Upper Colorado River Basin Compact divided the consumptive use of
water allotted under the Colorado River Compact between the states on a percentage basis: Colorado--
51.75%; New Mexico--lI.25%; Utah--23.00%; Wyoming--14.00%; and Arizona--50,000 af.

Meanwhile, Arizona was pressing Congress for the construction of the Central Arizona Project
and, in 1952, again sued California. This time, Arizona was victorious. But the 1963 decision of the
U.S. Supreme Court in Arizona v. California also contained some very strong language about the power
and intent of Congress in enacting the comprehensive allocation and regulatory scheme of the Boulder
Canyon Project Act. The Court recited the modern history of the River and the practical need for
coordinated operation of national facilities. The Court used this basis to confirm that Congress vested
the Secretary of the Interior with broad discretionary powers. These powers included the authority to
allocate and distribute water, and to apportion surpluses and shortages.'. The Decree entered by the
Court affirmed the allocation established by Congress--4.4 maf to California, 2.8 maf to Arizona, and .3
mafto Nevada. The Decree also provided guidance to the Secretary of Interior in dealing with shortage
and surplus conditions, when less or more water th3l1 these amounts could be made available to the
States. It is important to note that Arizona v. California deals only with mainstream water. It does not
interpret the Compact, or concern tributary water.

Following the 1947 Interior Department study and the 1948 Upper Basin Compact, the Upper
Basin States also looked to the federal government for the development of a comprehensive river
management system. Their plan was to have the federal government pay to construct a series of
reservoirs that would allow each state to develop its entitlement to water in the Colorado River System.

"'The Court stated:

The legislative history, the language of the Act, and the scheme established by the Act for the
storage and delivery of water convince us also wat Congress intended to provide its own method
for a complete apportionment of the mainstream water among Arizona, California, and Nevada.

. . .

Having undertaken this beneficial project, Congress, in several provisions of the Act, made it clear
that no one should use mainstream waters save ill strict compliance with the scheme set up by the
Act....These several provisions, even without legislative history, are persuasive that Congress
intended the Secretary of the Interior, through his 95 contracts, both to carry out the allocation of
the waters of the main Colorado River among the Lower Basin States and to decide which users
within each State would get water. (Emphasis added).

With regard to apportionment of shortages, the Court stated:

While the Secretary must follow the standards set out in the Act, he nevertheless is free to choose
among the recognized methods of apportionment or to devise reasonable methods of his own.

Arguably, the Secretary is vested with authority to allocate water in times of shortage even within the states, through
his contract authority.