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.~~ '-:/~~~f:f:(.~..;t~t~~:.~~,~~~~~.~:.~:~~~, ::~ .~'.'.:.~.-:':~~;~i;.~.;~;j7:~~~:f.~;.." ::t1::~'7 ..~ .8 STANFORD LAW REVIEW [Vol. '9: Page I of three riparians should make provision for the possibility of a subsequent treaty with the remaining riparian. In execution, as distinguished from conception, the compact has some serious shortcomings. The limit on appropriation of water is expressed in terms of "beneficial consumptive use," a term not defined in the document. The method of satisfying third-parry claims is far from clear: when is there a deficiency,-and what amount is the Upper Basin required to supply to satisfy the deficiency? Article III (e) is pregnant with problems of inter- pretation which have already been noted. Furthermore, while the compact wisely includes tributary supply and uses in the apportionment scheme, it does not establish a truly systemwide accounting procedure, since no express provision brings related groundwater within the compact's compass. Thus, the 1922 compact solves some problems but leaves others unsolved and, in fact, by its language creates problems that have become the subject of continuing contr'oversy. C. Continuing Controtl~rsies At least five controversies were not laid to rest by the r922 compact. Three of the problem areas were considered brieRy in the preceding section: (1) the standard for measurement of "bencficial consumptive use," (2) the priority for releases of water for electric power generation, and (3) the method of sharing the Mexican treaty obligation. They are all disputes of which the compact negotiators were aware but failed to resolve because of imperfections of language and perhaps because of an underlying lack of agreement. In addition to the three problems touched on by the compact, there are two more unresolved problems which the compact makes no overt effort to solve and which were perhaps not recognized by the negotiators: (4) the quality of water that the Upper Basin must deliver to the Lower Basin and (5) the proper procedure for accounting for the use of groundwater tribu- tary to the surface system. Controversy over these mallers has already arisen, is likely to sharpen in the future as uses increase, and may welI result in litigation if the water shortage persists. If, on the other hand, the Pacific Southwest Water Plan is enacted and a plentiful supply is imported into the basin, the ambiguities will be submerged by the flood of extra water, for litigation over water in the West seems inversely proportional to supply. Each of the five contro- versies is considered in turn. I. Bm~ficial consumptitlt: ust:. As heretofore noted, the compact does not define the term "beneficial consumptive use" as employed in apportioning water between the basins :.~-~. ~'''{~;' : ~.'.~ "" . ,o..:;~:.;;: ,~~~ .,,~. ~ .... . -. .,. ~... ..." J'o\'ernber 1966] in sections (a) 0 b2.ins diS:lgree ( Colorado River It:ltCS) provides' is apportioned r mined] . . . by hOns of virgin { hand, section 4(: di\~sion of main consumptive use The "net dep River system is, ( water as it flows mers for water t lost :Iflyway in < Suppose a strear converts the me: water would not salvaged water i eliminated by al and from percol WitllOut charge I apart from the , creases channel I, 10 be lost. On tile other the: ri\'e:r," users ~ Upper Basin nat /icial consumpti' less return flows. This dispute, on 1 y in construir pact, because art Rate of the appo: expressed in ten cited, the Specia in dictum as ado 7~. s~~ CJyde:, Ct """.cu DaVELOPNEN" 1060). 7]. 6] su~ 35 (,. 74. <43 uS.c. S 6i ". MUlrTl R~po: