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,.... :._~:,:.:.~::.~,. . [VoL '9: Page I w her to COntest tialterms of the ) should she ~_ U. . In perpetuIty" e contemplating , to exhaust their Ight to be neces- promises. Initial Ie available sup. ,s to justify their man was Harty :sentative of the ce development demands were Iat was readily I to preserve its :le IlI(f) of the ppl y onl y to the ?2 agrcemcnt.12' ies the formula should make it very obligation River Commis- y curtailment- ired only if the upon the extent ,d not upon the itates have been s prcceding the :e to Lee Ferry [0 3gree [0 make the ~ DOt aU stal~ .ignl' C\JJ"l3ilm~t because e both deli~ery obli~ !'D,.ember '9661 THE COLORADO RIVER 33 "watCC equal to its, or the aggregate of their, ovcrdraft or the proportionate f ueb an overdraft, as may be necessary to assure compliance with ~os dRi Co ..... d()if . ^ 'cJ III of the Colora 0 ver mpact; an 2 no state IS over- :. e (or states have replaced amounts equal to their overdrafts and there . ~;~a deficiency), then under article IV (c) each state will be called upon us ntribute a portion of the deficiency based on its percentage of the total to ~r use in the Upper Basin during the preceding water year,''' Thus, the ;:;t:Iilment concept used in the c?mpact is based not upon a duty to ~eet annual delivery schedule fixed In advance, but upon a duty to contribute ::: flow by curtailing uses if a deficiency develops in meeting the ten-year I. . lSS "', Ig:tuon. ^rticJe V deals with the Upper Basin states' cooperative use of major storage units such as Glen Canyon and Flaming Gorge Dams. During the ncgotiations the s~ggestion. w~s made and subsequently ~dopted that the Upper Basin's dehvery ~~h~al1on under the C~lorado RIVer Compact of I!F! is joint and several. Smce any Upper Basm state could theoretIcally he compelled to meet the entire deficiency, the states agreed to apportion thc ,klivery obligation among themselves to minimize this potential threat -in other words, to create a liability in favor of one state in the Upper Basin as against another if the states do not carry out their obligations.'" TIlere is, however, no fixed annual delivery obligation on the individual SIaIC! except in times of scarcity (that is, empty reservoirs) as provided by anicle IV. As article V(b)(l) expresses it, water used for Lee Ferry de- li,'cri.. is "for the common benefit of all of the states of the Upper Di- .. .. "ISlOn. Article V also provides for apportionment of reservoir losses. Reservoirs existing at the time of the execution of the 1948 compact are dedicated to tlle use of the states in which they are situated, and the evaporation losses are charged to them. The commission is directed to determine the use of a ncw facility. If the facility is used to meet the Lee Ferry delivery obligation, reservoir losses are charged to each state on the basis of the ratio of its con- lumptive use to total consumptive use. If, on the other hand, the facility is used [0 supply water for consumptive use in the Upper Basin, the using ptiilns at l..tt Ferry and proration in times of 5CUci[}' OD the s:une basis. 2 id.. Meeting No.7. at 79-00. 'B. Art. tV(b). 1]4. A proviso in the article exempts from this calculauon uses anredating Noyember 24, 1922, lhc d~\e 'the 192.2 compact w.u cncuted. The clause was probably thougb[ to be necessary because: 01 .nlele v:m of the 1922 compact, wbich declared "present perfected rigbts" 10 be unimpaired by thc-,'Rree:rnent. It ru.s since been determined, however, that "present perfected rights" arc those: ante:. clatln~ Junt 25. 1929. the date thc 1912 compac[ and the Boulder Canyon Project Act wue declared rflmne. Arizona v. Califo(nia, 376 U.S. 340 (1964) (decr~). '35. Su 2 RECORD, Meeting NO.7, at 76 (cunailment will apply "only. . . after the: reservoin &It empty and there is still a shortage at Lee Ferry"). 136. I UJ., Meeting No.5. at 98. '37.lhid. I I I