WSP00250

• File Number: 8220.700
• Description: Colorado River
• State: CO
• Basin: Colorado Mainstem
• Date: 11/1/1966
• Author: Charles J. Meyers
• Title: The Colorado River
• Water Supply Pro - Doc Type: Report/Study

[Vol. '9: Page I

lte an impasse
issue is one of
~, for now the
t can establish
Basin cannot
,wer Basin to
Basin cannot
.stic uses" ar~
Idition to this
[ the relation-
~e delivery of
n continuing
Basin's mini-
~xcess of such
I(d) delivery
es.
acre-feet has
Lower Basin,
lomestic uses
ler to comply
,e its agricul-
~asin to avoid
nevertheless
say that the
"hen we have
1 amount of
nces. Such a
'n support of

Basin, while
vered to ue
or Basin con-
nevertheless
i for genera-
'er to Cau 1,
; hence, the
words, if the
case, it can.
e) prohibits

l'o,'anbu 196GJ THE COLORADO RIVER 21

However, the two cases are distinp'isha.ble. In Cau I,arti~le III(e) was
trUed to relieve the Upper BaSin of ItS III(d) obligatIOn when the
cons ting of the Lower Basin's dema~d for power, water would have red.uced
~Iished agricultural and domestic consumptive uses. In Case 2 satlsfac-
e;'t:l of the III (d) obligation would have no effect upon such Upper Basin
tJonsumptive useS. Thus, the following interpretation of article lII(d) and
~~e) seems reason~ble: the Upper ~asin must sup~ly 75 million acre-feet
the Lower Basin In each progreSSIve ten-year penod, although some of
:~is water is used to generate power in the Lower Basin, provided, however,
110,[ the Upper Basin may reduce deliveries below that figure to maintain
existing agricultural and domestic uses where the water withheld would
he used by the Lower Basin to generate electric power. While this result
requires a distributive reading of article l1I(e), it conforms with article
)\'(b), which in general terms declares a preference for domestic and agri-
cuhural uses over uses for generating electric power.
CtlJ~ 3. Ti,e Upper Basin has delivered in the prior ten-year period 75
million acre,feet at ue Ferry. After satisfying all Upper Basin agricultural
and domestic uses, the supply still exceeds 75 million, and the excess has
hc-en Slared in Lake Powell. The Lower Basin demands some of the excess
for o::eneration of power at Hoover Dam, but the Upper Basin retains the
water as a reserve against future III (c) and III (d) obligations and for
hydroelectric power generation. It is this third case that is the most difficult
to solve under the com pact.
In an article dealing with interbasin conAicts, Edward W. Clyde, a
leading water lawyer of the Upper Basin, notes that from the first there
was disagreement on the matter." A. P. Davis, Commissioner of Reclama-
lion in the 1920'S, took the position that all water not beneficially used for
agricultural and domestic purposes in the Upper Basin must be allowed to
run down to the Lower Basin." The State of Colorado has taken exactly
thc opposite position: the Upper Basin may impound in Lake Powell all
the water of the Colorado "except waters required . . . to pass Lee Ferry
for downstream domestic and agricultural purposes, not to exceed 75,000,000
acrc,feet in any consecutive ten-year period" plus the Upper Basin's share
of the Mexican burden." When the ratification fight was in progress, Her-
bert Hoover submitted written answers to a series of questions on the in-
tcrpretation of the compact. One such question and answer was:

Queslion 14. Can paragraph (d) of Article III be construed 10 mean rhal rhe
Slates of the upper division may withhold all except 75,000,000 acre feet of water
within any ~riod of 10 years and thus not only secure the amount to which they

76. Clyde, mpra note 72, at 119.
77. Su Wilbur &. Ell', op. cit. supra note 62, ,at A56.
78. Clyde, supra note 72, at 119.