WSP00250

• File Number: 8220.700
• Description: Colorado River
• State: CO
• Basin: Colorado Mainstem
• Date: 11/1/1966
• Author: Charles J. Meyers
• Title: The Colorado River
• Water Supply Pro - Doc Type: Report/Study

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STANFORD LAW REVIEW

[Vol. '9: Page,

clause, and perhaps under its power to spend for the public welfare, Con-
gress has the power to divide the unappropriated waters of the Colorado
River in the Lower Basin among the three bordering states-Arizona, Cali-
fornia, and Nevada. (This proposition is stated narrowly; it can be stated
more broadly, a point that will be raised later in the discussion.) This con-
gressional power to apportion the waters of a navigable stream is a third
method of dividing a stream among states, the other two (formerly thought
to be exclusive) being by compact or by litigation in the Supreme Court.
(2) Congress exercised its apportionment power in the Boulder Canyon
Project Act of 1928 partly by dividing the river itself and partly by dele-
gating to the Secretary of the Interior power to divide the river. This statu-
tory division is the sole basis for the interstate apportionment. Neither the
Colorado River Compact nor the doctrine of equitable apportionment as
fashioned by the Supreme Court is applicable to the apportionment since
the compact did not purport to divide the Lower Basin and the equitable
apportionment doctrine was preempted by congressional apportionment.
(3) The water that Congress divided was the main stream of the Colo-
rado River at Hoover Dam, not the main stream and the tributaries.
(4) The statutory scheme of apportionment was as follows:
(a) California was limited to 4.4 million acre-feet of consumptive use
of water from the main stream plus not more than one-half of surplus.
Acceptance of this limitation by California was a condition precedent to
the effectiveness of the Project Act, and California, by legislation, did
accept it.lll~
(b) The Secretary of the Interior was delegated authority to divide the
water of the main stream in the Lower Basin by contract, subject to the
limitation on California.
(c) The Secretary had executed valid contracts for delivery of water to
the three states as follows:
(i) To California-4.4 million acre-feet of consumptive use plus one.
half of surplus, subject to physical availability; (ii) To Arizona-2.8 million
acre-feet of consumptive use plus one-half of surplus, subject to physical
availablity, less four per cent of surplus if Nevada should in the future con.
tract with the Secretary for such water; (iii) To Nevada-3oo,ooo acre-feet
plus four per cent of surplus if Nevada should contract with the Secretary
for such water, subject to physical availability.
(d) "Surplus" is defined to mean water available in the Lower Basin to
supply consumptive uses in excess of 7.5 million acre-feet.
(e) In the event the Secretary determines there exists a shortage of
water so that 7.5 million acre-feet of consumptive use cannot be satisfied
from the available supply, the Secretary is to allocate the water as Congress

..

18S. Aa of March 4. 1929. Cal. StOlt. 1929. ch. 16, at 38.

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