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<br />001874 <br /> <br />SENATOR KUCHEL. <br />that the water was <br /> <br />Would your opinion be the same if you assumed <br />surplus in the dam? <br /> <br />MR. BENNETT. The use of the word "surplus" is the difficult prob- <br />lem there. The word "surplus" has been used in a number of different <br />ways in connection with different sections and articles of this com- <br />pact. I am most reluctant to discuss the meaning of "surplus", inas- <br />much as it is very much in issue before the Supreme Court, unless I <br />know exactly what you mean by "surplus". <br /> <br />SENATOR KUCHEL. Let me try as best I can to indicate it. Let us <br />assume that there is no question of water flowing through Lees Ferry <br />which is necessary for rights of prior appropriation. Secondly, for <br />the responsibility of the upper State to meet the commitments to the <br />lower States, and to that extent under this question you would find <br />X acre-feet of water in the Glen Canyon Dam above the need of the <br />upper basin under the compact. That would be my general thinking <br />about what I would mean by the word "surplus" there. <br /> <br />MR. BENNETT. I would say this, Senator, that waters which are <br />available, and which are reasonably necessary, for storage in order <br />to meet the commitment of the upper division to the lower division <br />States would be subject to storage under most circumstances. <br /> <br />SENATOR KUCHEL. There again I assume subsection (e) of article <br />III is relevant? <br /> <br />MR. BENNETT. Subsection (d) of article III? <br /> <br />SENATOR KUCHEL (reading): <br /> <br />(e) The States of the upper division shall not withhold water, <br />and the States of the lower division shall not require delivery of <br />water, which cannot reasonably be applied to domestic and agricul- <br />tural uses. <br /> <br />MR. BENNETT. To us it is clear that if that water is reasonably <br />required for agriculture and domestic purposes in the lower division <br />it probably would be subject to call with one possible qualification, <br />Senator. That is this: The lower-division States have storage <br />capacity with which you are very familiar. They have Lake Mead avail- <br />able to them. Article VIII of this compact expressly provides that <br />those perfected rights existing as of the date of the compact shall <br />be applied to such storage as might be available in the lower basin <br />after 5 million acre-feet of such storage capacity became available. <br /> <br />I think the question whether that water would have to be released <br /> <br />11 <br />