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<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 />
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