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<br />;!'<......~~-.,. <br />~ ~:.:~'--'-:..,~ .;,;..:~:. .' -: ,'.. <br /> <br /> <br />';;:;'~-~':;~~i.{~~~~~;!~:,:h.; ;j ;;<:;.: ", <br /> <br />26 <br /> <br />STANFORD LAW REVIEW <br /> <br />[Vol. '9: Page I <br /> <br />tion of quality is found in article IV (b), which could, but need not, be read <br />as implying a duty to deliver water usable for the purposes there made para- <br />mount-agricultural and domestic uses. <br />The quality probkm has not yet become a major issue between thc <br />Upper and Lower Basins, because the former does not now depend heavily <br />upon return flow to meet its Lee Ferry obligation. It is conceivabk that as <br />uses increasc in the Upper Basin the reuse of water will so affect the quality <br />at Lee Ferry that controversy will arise on the question. <br /> <br />5. Groundwat~. <br /> <br />The compact contains no express provision regarding groundwater, and <br />the pervading spirit of the document suggests that its authors did not intend <br />to subject groundwater to the terIDS of the agreement. This is unfortunate <br />(although perhaps unavoidable given the state of knowledge in 1922), <br />because surface water and groundwater are often hydrologically insepa- <br />rable." This scientific fact was recognized by the Supreme Court in its <br />decree in Arizona v. California, wherein it is provided: "Consumptive usc <br />from the mainstream within a State shall include all consumptive uses of <br />water of the mainstream, including water drawn from the mainstream by <br />d d . "Ill <br />un ergroun pumpmg.... <br />The issue becomes significant in applying the apportionment provisions <br />of article lII(a) and lII(b), in which ceilings on appropriations are estab. <br />lished by reference to specified amounts of consumptive use. An account- <br />ing that includes consumptive use of related groundwater naturally will <br />produce a higher figure for appropriations (and one which more accurately <br />reflects depletion of the water supply) than an accounting which excludes <br />it. This determination in turn affects the application of article III(c). <br />Any answer offered on the groundwater question at this time is specu- <br />lative, but it is worth remembering that in Arizona v. California the Su- <br />preme Court, in establishing the accounting system in the Lower Basin <br />under the Boulder Canyon Project Act," treated consumption of related <br />groundwater as a use to be charged. This was done with no more textual <br />authority in the act than there is in the compact. <br /> <br />III. CoNFLICTS AMONG THE STATES OF THE UPPER BASIN <br /> <br />In 1920, shortly beforc the execution of the Colorado River Compact of <br />1922, the Bureau of Reclamation estimated Upper Basin consumption at <br />2-4 million acre,feet of water pcr year and Lower Basin consumption at <br /> <br />88. Pipa' &. Thoma!, Hydrology and Walt.,. Law: Wllat Is Thrir Future Common Gnnmd?, in <br />WATER. Ruomcu AND na LAw 7 (1958). <br />89. 376 U.S. 340 (1964). Sa Il1so part lV of lh~ decree. ]d. at 347-50. <br />90. 43 U.S.C. II 6'7-{i171 (1964). <br /> <br />l'1ovember '966] <br /> <br />some 2.56 million am <br />decreased slightly whi <br />storage, had increased 1 <br />water apportioned to Ii <br />flowing unused to the <br />uses was accompanied I <br />of the Colorado River <br />about r6,000,000 acre [, <br />about 5,000,000 acre fe, <br />but later flow figures al <br />would be impossible [. <br />greatly and still meet it, <br />Basin's economy was te <br />,'ide the carry-over stor;, <br />delivery obligations anc <br />source of such linancin <br />.. b' h' <br />g-o\"ernment, W Ie 1!j <br />up the money for furl!, <br />demonstrates, interstate <br />tracted litigation. No suo <br />cause no statc would g; <br />resources to go it alone. <br />ing separately. <br /> <br />A. N,gotiation of th, L <br /> <br />In order to understa <br />st:ltes as to the appropr <br />uppcr Colorado, it is ne, <br />~mong the states concer <br />The state of Colorado is <br /> <br />91. S~t' Wilbur &: Ell", op. 0.1. <br />92. 6 UPPEII CoLO. Rn'u Cc <br />93. I RECORD, M(:~tJJ1g NO.3 <br />94. For aOlmple, in the! peri <br />,,",I.) 10 million acre-feet or I~s <br />1:1 UPPER. CoLO. RIVER. CoM.M'N A <br />95. 6 id. at 49 (1954-1955). <br />. 96. For example, Congress :;, <br />Rna Stoug~ Proj~c[ Act ~ J::t, 43 <br />97. "Tbe formulation of an : <br />110m ~otlg pouibilities for exp. <br />poIrnwl Dew projects. Before sue <br />H,,.n C%ruo Rivn Basi1/. StaJt. <br />tl.r Colorado River or that the c( <br />(nnphua added). <br />Pans of five Itat~s are with: <br />WromiDg. Only me last four h2\"' <br />98. For the data reportro in t.: <br /> <br />