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<br />
<br />
<br />24
<br />
<br />STANFORD LAW REVIEW
<br />
<br />[Vol. '9: Page,
<br />
<br />proclaims completion of works capable of importing 2.5 million acre,feet
<br />of water into the basin below Lee Ferry. Similarly, the second priority is
<br />released, pro tanto, when imported water is delivered to the Lower Basin
<br />to the credit of the Upper Basin. The statutory clause is complex, but the
<br />following characterization of it by one of the draftsmen seems fair:
<br />
<br />Thr: nr:t dl~ct of section 601, in layman's language, is that Lake Powdl is not to
<br />be drained while Lake Mead r~mains full, and Lake M~ad is not to be drain~d while
<br />Lake Powell ~emains full, but that both reservoirs shall rise and fall in general but
<br />not necessarily exact corrdation with each other. Lake Powell is not to b~ filled to
<br />the maximum to protect the uppc:r basin against the recurrc:nce of the most ex-
<br />treme droug~t, but only against reasonable probabilities of shortage, and Lake
<br />Mead, in turn, is not to be maintained at a higher level, in terms of active storage,
<br />than Lake Powdl. The intent is to spread the risk fairly between the two reser-
<br />voirs.ID
<br />
<br />As is apparent from the bill's language and the draftsman's statement,
<br />a considerable amount of discretion is left in the Secretary. While the bill is
<br />not yet law, and may never be, it seems likely that such an adjustment be-
<br />tween the basins on this crucial question will ultimately, one way or an-
<br />other, be given the effect of law.
<br />
<br />3. Th~ M~:rican tT(aty obligation.
<br />
<br />We have already noted ambiguities in the Mexican treaty provision of
<br />article I1I(c). The negotiators labored under a heavy handicap in having
<br />to provide for a future diminution of supply, the nature and amount of
<br />which were beyond their knowledge. Nevertheless, not all of the difficulties
<br />in article III (c) can be traced to this handicap. The question of the amount
<br />of water that the Upper Basin must supply in the event of deficiency and
<br />whether it is obliged to supply one-half the losses between Lee Ferry and
<br />the Mexican border could have been solved in the text of the compact.
<br />Furthermore, the negotiators failed to make clear just when a deficiency
<br />anses.
<br />Read literally, the compact establishes the existence of a deficiency when
<br />the supply fails to provide 16 million acre-feet of consumptive use, even
<br />though existing uses are far Jess than that figure. Thus, the supply may be
<br />adequate to satisfy all American uses and to supply Mexico, and there may
<br />still be a deficiency. Suppose the supply is sufficient to satisfy the 8.5 million
<br />acre-feet of existing uses in the Lower Basin (its full compact apportion-
<br />ment) as well as 3 million acre-feet of existing uses in the Upper Basin.
<br />This presupposes a minimum system supply of 11.5 million acre-feet, dis-
<br />regarding for this purpose river losses. Suppose further that the flow at
<br />Glen Canyon Dam is another 3.5 million acre-feet so that the total supply
<br />
<br />85"_ Id'J pt.:J:, at u64 (t~sti.mony of Northcutt Ely).
<br />
<br />"ovem ber '966]
<br />
<br />aggreg:ltes 15 milli
<br />enough to supply tl
<br />Upper Basin withh,
<br />at Glen Canyon an'
<br />by 750,000 acre-f~et "
<br />o,'e answer. Article
<br />release of water wh
<br />domestic uses. Once
<br />arc interdependent ( I
<br />to give article III (e:-
<br />however, renders tl.
<br />oper~tive.
<br />Another difficuk
<br />partly anributa?le t,
<br />can treaty requITes a
<br />S"tion is calculated
<br />whether the Upper:
<br />by the delivery to Le I
<br />pose that on Ocrobe,
<br />\'ious ten years was 8.
<br />1!I63-I!I64 was only (
<br />interpreted, there is ,
<br />s.:ltisfied its obligatio'
<br />aere,feet of water? ~
<br />m~in stream was at
<br />for excess deliveries
<br />Mexico. However, :u
<br />rderence to articles:
<br />an annual basis.
<br />Again, these aml
<br />problems. From the '
<br />Wore:' there have I
<br />
<br />4. W at~r quality.
<br />
<br />The compact con
<br />Article III (d) speak, I
<br />each ten-year period.
<br />
<br />86. Su, ~.g.. Herbert H
<br />Carl Hayd(:D, question no. I
<br />"''''Q Dote 61, at A]8.
<br />e,. See H~m';ngr on Iht
<br />. The recent hc:.arings. on I
<br />,.,, on S. 1658 (CmlTlll Ar;
<br />
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