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<br />
<br />101. '9: Page I
<br />
<br />ion acrc-feet
<br />,d priority is
<br />Lower Basin
<br />)Iex, but the
<br />s fair:
<br />
<br />-'owell is not to
<br />: drained while
<br />in general hut
<br />: 10 b< filled to
<br />f the most a-
<br />19<, and Lake
<br />active storag~
<br />the two rcser-
<br />
<br />,'s statement,
<br />,ile the bill is
<br />justment be,
<br />: way or an,
<br />
<br />provision of
<br />op in having
<br />~ amount of
<br />~e difficulties
<br />f the amount
<br />~ficiency and
<br />:e Ferry and
<br />the compact
<br />, a deficiency
<br />
<br />idency when
<br />ivc use, even
<br />Ipply may be
<br />ld there may
<br />Ie 8.5 million
<br />ct apportion-
<br />J ppcr Basin.
<br />lac-feet, dis-
<br />t the flow at
<br />: total supply
<br />
<br />-':uvcmba '966]
<br />
<br />THE COLORADO RIVER
<br />
<br />25
<br />
<br />gates 15 million acre-feet, enough to supply all demands but not
<br />~h to supply the article I1I(a) and III(b) apportionments. Can the
<br />~o;r Basin withhold all but 750,000 acre-feet of the 3.5 million acre-feet
<br />PGlen Canyon and require the Lower Basin to cut back its existing uses
<br />~:. i5o,ooo aae-feet? Taken alone, ar?c1e I~I(c) see~s to give ~ ~flirma-
<br />ti~'e answer. Article II1(e) may mod~y thiS conclUSIOn by ~equITillg the
<br />!rase of water which the Upper Basill cannot apply to agncultural and
<br />~omestic uses. Once again the question is whether the two compact sections
<br />arc interdependent or independent. The commonsense answer seems to be
<br />to gi,'e article 1lI (c) primacy in order to avoid economic loss. Doing so,
<br />howe\'er, renders the "surplus" pro\'isions of article III (c) virtually in-
<br />operative.
<br />Another difficulty presented by the application of article II1(c) is only
<br />partI}' attributable to the compact negotiators' draftsmanship. The Mexi-
<br />an treaty requires annual deliveries, while the Upper Basin's III(d) obli-
<br />""tion is calculated in continuous periods of ten years. A question arises
<br />whether the Upper Basin can obtain a credit against its II1(c) obligation
<br />b)' the delivery to Lee Ferry of water in excess of its III(d) obligation. Sup-
<br />pose that on October 1, 1964, the aggregate flow at Lee Ferry for the pre-
<br />,'ious ten years was 85 million acre-feet, but that the flow for the water year
<br />'!P3-1g64 was only 6 million acre-feet. Assume further that, as the term is
<br />interpreted, there is a deficiency under article III(c). Has the Upper Basin
<br />solisfied its obligation by providing an average annual excess of 1 million
<br />aerdeet of water? Since, until recently, the only sizable storage on the
<br />main stream was at Hoover Dam, it seems fair to credit the Upper Basin
<br />Cor excess deliveries which the Lower Basin can store and use to supply
<br />Mexico. However, article III(c) seems to define surplus and deficiency by
<br />reference to articles III(a) and (b), in which the water accounting is on
<br />an annual basis.
<br />Again, these ambiguities of language do not create merely academic
<br />problems. From the time of the signing of the Mexican treaty, if not long
<br />before," there have been conflicting interpretations of article III(c)."
<br />
<br />4. Water quality.
<br />
<br />The compact contains no explicit provision regarding water quality.
<br />Article III (d) speaks only of delivery of 75 million acre-feet of water in
<br />each ten-year pcriod. The nearest approach the compact makes to the ques-
<br />
<br />66. $". ~.,.. ~(:rbert Hooyu's analysis of the compact in answC' to questions by Representative
<br />Clrl Haydrn, qUeslJOD no. 15. 64 Cowc. he. 2710-13 (1923), r~primed in Wilbur &. Ely, op. tit.
<br />"F. DOlt 62, at A38.
<br />87. Sc~ H~tI,.in,s on lh~ Tuaty W'-/h M~riro, supra not~ 60, aE 596-600, 604-06, 847-48, 1128.
<br />. Tb~ nccnE heuings on th~ Crntral AnzoIU Project have produced th~ sam~ conflicts. S~~ H~ar-
<br />,-,, 011 S. 16j8 (Cnrtral Ar;zofJIJ Projut), ruprll DOEc 49. aE 487"'"'94.
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