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.- .. .' . .'~~:~:~ ~~~~f~; -. ~. ;:'tr ".;' ;~~ .~~~7::;:~~~~:~; ~~\~\t;'~~l~~~j}{~::~'~~,~~~~.~~~~ :~'.'f ~~:.~~::~-~.:~~ . ~~ '.' '. ~~; 16 STANFORD LAW REVIEW [Vol. '9: Page 1 To these conclusions of the Special Master two more observations may be added. (4) Since sections (a) and (b) of article III impose limits on the amount of consumptive use and do not constitute grants of title to water, the actual grant occurs in article III (d), which prohibits the Upper Basin from depleting the flow of the river at Lee Ferry below an aggregate of 75 million acre-feet in any period of ten consecutive years, measured "in continuing progressive series." This article together with the regulating reservoirs at Glen Canyon (Lake Powell) and Hoover Dam (Lake Mead) should ordinarily cause the Lower Basin to have available at Lee Ferry an average annual supply of 7.5 million acre-feet of water in the main stream- plus inflow and less reservoir evaporation and channel losses between Lee Ferry and the final points of diversion. The delivery obligation imposed by article III (d) establishes a mini- mum, in that article IIl(e) prohibits the Upper Basin from withholding any water which cannot reasonably be applied to domestic and agricultural uses. If the Lower Basin can apply to such uses any such excess water, it can require the water's delivery. Since "domestic use" is defined in article II (h) to exclude the generation of electrical power, the Lower Basin can- not require the delivery of excess water for power generation, and the Upper Basin cannot store water for that purpose when Lower Basin needs for other uses are unsatisfied. In a comest between the basins over the gen- eration of power with water in excess of article HI(d)'s 75-million-acre- feet obligation, article III (e) seems to create an impasse because the Upper Basin cannot withhold and the Lower Basin cannot demand water for such use. Article IV (b), which permits the storage and use of water for power generation, does not resolve the problem, for it merely provides a preference for agricultural and domestic uses over hydroelectric use and establishes no priority between competing hydroelectric uses. (5) Finally, the provisions of article IIl(c) contemplate the execution of a treaty with Mexico and provide for the discharge of the burden of supplying water under the treaty. A treaty has been concluded under which Mexico has the right to receive 1.5 million acre-feet per year. It has already been noted that the Mexican burden is to be supplied first from any "sur- plus." If surplus is insufficient, article III (c) requires the two basins to bear the burden of the deficiency equally. The meaning of these provisions is difficult to determine. Read literally, article III (c) would operate in the following manner. First, the article as.- sumes that under article III (a) and (b) the supply can and will be dimin- ished in the year in question by 16 million acre-feet. If it is then determined that in such year the supply will exceed 16 million acre-feet of consumptive use, there is "surplus" which will go to supply Mexico. If, however, the J'o,'cmbcr 19661 supply exactly eq~als, , deficiency w~lch IS to :>ere-feet and if the Up] , tI e Lower Basin is CO] J . feet, the Lower Bas~ " under this literal read", A second question III (c) over a ten-year] I requirement of 7;; rn~ll its lII(c) obligauon if ceding ten-year period nually to Mexico). ~h on a year-to.year bam for any water in exces year period. . CUlling across thIS may require the UppeJ nc<essary to satisfy L" water for agricultural require release of wat' could require tile relea cultural and domestic Finally, there is tll' share of the deficiency of onc-half tile defici, deliver enough water Mexican border? Th, :1Ilt! reservoir evapora: 2. Slim mar}' and { The Colorado Ri\ equitable apportionrn waters of a successive stales but does not nec pacl has some note...... riparians and lower ri a supply to both rip"' up claims by the expa use of water originar: uses in excess of the latter Slate needs the v