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<br />, , '
<br />'t'.0:';:t.':'t~,'i;~~,~~' '~;;"~,~!1j::'::;'::~?:";'''f~:c:;2_c~:~~ 7:'~~'.<~-,~'. + :4),::':~:~<~.i;~"~\ ;:'~~..' "'~'. .
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<br />30
<br />
<br />STANFORD LAW REVIEW
<br />
<br />[Vol. '9: Page J
<br />
<br />The engineering committee calculated the man-made depletions as a func-
<br />tion of (I) irrigated acreage, (2) crop distribution, (3) consumptive use
<br />values derived from experiments, (4) additional uses of water in connec-
<br />tion with irrigated land, and (5) climatic data.'"
<br />The many thousands of small diversions in the Upper Basin were
<br />thought to make it.impossible to measure consumptive use at the site of use.
<br />Therefore, in article VI the 1948 compact adopts the inflow-outflow method
<br />as the measure of consumptive use. The method essentially measures the
<br />reconstructed virgin flow at inflow gauging stations and compares it with
<br />the flow at the outflow gauging stations. To obtain the virgin flow values it
<br />is necessary to ext~apolate from historic /low and historic loss figures. The
<br />difference between total inflow and total outflow constitutes the state's
<br />beneficial consumptive use.'" The inflow-outflow method cannot, of course,
<br />be used for transbasin diversions. no
<br />The Upper Basin's delivery obligation under article IIl(d) of the 1922
<br />compact made it necessary to determine the relationship between a state's
<br />contribution at its border and its ultimate contribution at Lee Ferry. Essen-
<br />tially this involves olculating the amount of channel loss (from both evap-
<br />oration and transpiration), much of which occurred in Utah. Utah, of
<br />course, could not be charged for all losses occurring within her borders.
<br />Therefore, each state would have to contribute enough excess water at its
<br />border to meet its share of channel losses occurring between the border and
<br />Lee Ferry.
<br />The compact commissioners, having adopted the "net depletion of the
<br />virgin /low" for measuring uses within the basin, were urged to apply the
<br />same formula externally-that is, against the Lower Basin.'" The effect
<br />would be to relieve the Upper Basin of any charge for uses that occurred in
<br />a state of nature and for use of water salvaged through the efforts of man.
<br />Testimony presented to the commissioners indicated that the difference
<br />between the "net depletion" formula and the "consumptive use at sites of
<br />use" formula could be significant. Colorado (it was asserted) had increased
<br />her irrigated acreage in the Arkansas River Basin by 200,000 acres without
<br />increasing the net depletion at the Kansas line.'" Moreover, when Kansas
<br />complained of this increase, the Supreme Court accepted the net depletion
<br />theory (so the witness asserted) and dismissed the complaint because Kan-
<br />sas had suffered no injury.'"
<br />While obviously impressed with the utility of the "net depletion" for-
<br />
<br />III. Su:zitl.,Mecti.ngNo.,,2tI9.
<br />IU. Ibid.
<br />113. SU:2 it/., Meeting NO.7. at 58.
<br />114. :2 id" Met=ting NO.7. at 4:1-63.
<br />J IS. :2 id" Meeting NO.7. at 44. The witness, Royce J. Tipton, .2 prominent engineer, also fur-
<br />nidted the commissioners with studies of other rivus 10 make the same point.
<br />u6. Colorado Y. Kansas, 310 U.S. 383 (1943).
<br />
<br />l'o\'ember 1966]
<br />
<br />lDula for measuring c,
<br />a provision in the U pr
<br />lion of the term "bene
<br />aful deterrent was t
<br />nasin eompact would'
<br />sibl)' to Congress' witl
<br />l13sin eompact was th
<br />llpper Basin developr
<br />formula had to be for:
<br />undoubtedly be a prin,
<br />
<br />D. The Prat,ision! of t,
<br />Described and Ana
<br />
<br />Article I declares tl
<br />and in subordination ( I
<br />divide the Upper Basir '
<br />tern among the 'states '
<br />ment and to establish e'
<br />Lee Ferry. Article II i
<br />tions contained in the J
<br />The most importan
<br />portions fixed percenta
<br />to the Upper Basin an, '
<br />in perpetuity.'" Arizo:
<br />Upper Basin and contr
<br />is Kiven a mass allocati,
<br />manded 140,000 acre-f,
<br />portioned,'" although:
<br />mate yearly consumpti
<br />r~t.''' When negotiati
<br />;L\ked for more water tl
<br />~o,ooo acre-feet per yea I
<br />rado in her opacity as
<br />uticle XVIII, which pr
<br />
<br />II'. W}'oming suggested 1I
<br />hrnrfi( Crom lh~ "d~pJetion of tJ
<br />Buill wuuld bc:ndlt by aD addil
<br />118. For the official text 0
<br />Ih:p'T OF rNTUoIOR, DOCUMEN1
<br />IW......A.TIOSA.L Sn[AMS 218 (19
<br />119. An.. lII(a)(:I). The pr
<br />ud Wyoming, ."'%.
<br />I JO. 2 RECORD, Meeting No
<br />121. CoLOUDO RIV:u 151.
<br />1:32.2 Rt:COI.D, Meeting No I
<br />123. I id., Meeting No.2, a
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