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<br /> <br />46 <br /> <br />STANFORD LAW REVIEW <br /> <br />[Vol. '9: Pag< 1 <br /> <br />-during periods of plenty as well as periods of drought-would be de- <br />pendent upon an agreement among the states. If there is no agreement the <br />rights would depend upon the principles of equitable apportionment ap- <br />plied by the Supreme Court, wherein priority of appropriation has been a <br />very substantial ingredient. It also follows that the Secretary has no pOWer <br />to allocate water intrastate-that is, state law, not federal law, controls <br />water rights within each st3te-a conclusion buttressed by express provi_ <br />sions of the act. <br /> <br />C. Anal)'sis of th~ D~cisjon <br /> <br />t. Congr~ssional pow~r to mak~ int"stat~ apportionm~nts. <br /> <br />We turn now to a critical examination of the principal points of the <br />decision, the dissents, and the co=entary thereon. Dean Trekase, whose <br />discussion of the case is the most thorough and the most thoughtful, ex- <br />pressed reservations about the congressional power to make an interstate <br />apportio~ent of a stream.'" Two questions arise: (1) Can this congres- <br />sional power be found in the Constitution? (2) Even if the answer to this <br />question is yes, is the power one that Congress ought to have or, having it, <br />ought to use? <br />The constitutional power for congressional apportionment is easy <br />enough to find for a navigable stream. Before Arizona 1/. California the <br />Supreme Court found plenary power in Congress to manage navigable <br />streams'" as well as nonnavigable streams when Congress had declared <br />that their regulation was related to downstream navigation.'" The only <br />question for serious debate is whether a congressional apportionment that <br />destroys vested water rights gives the user a fifth amendment claim for <br />compensation. This question did not arise in Arizona 1/. California because <br />Congress protected present perfected rights, which the Court defined as <br />"a water right acquired in accordance with state law, which right has been <br />exercised by the actual diversion of a specific quantity of water that has <br />been applied to a defined area of land or to definite municipal or industrial <br />works. . . .''''' Such a right was preserved if it existed on the effective date <br />of the Project Act. It could be argued that this definition excludes rights <br /> <br />J 88. 'I'rclea~, supra note: 184. :ilt 172-83. <br />189_ Unit~d States 'Y. Twin City POWtl Co., 350 U.S. 2::1:1 (1956). '1t is not fOf courts. . . to <br />lubstitutc their judgment (or congressional decisions on what is or is not m:ccssary for the improve- <br />ment or protection of navigation. . . . The decision of Congress that this projecl will ~rv(' the inter- <br />ests of o.2vig.acion invol"es engineering .and pol;cr comidtrations for Congrcu and CODgTe5.5 .:Ilene 10 <br />cvalu2tc." ld. at :2.24. <br />190. Uni[cd Su.t~ 'Y. Grand Riv~r D,;,m Authority, 363 U.S. :::129 (1960); Oklahom,;, ~z rn. <br />Phillips 'Y. Guy F. Atkinson Co., 313 U.S. 508 (1941). "Th~r~ is no constitutional rt=ason why Con- <br />gress cannot. under th~ commerc~ power, lr~,;,t the: "'';'Ie:rsh~d5 as a k(:y 10 flood contra! on navigablt <br />str"(:,;,ms and th~ir tributaries." Id. at 525. <br />191. 376 U.S. 340, 341 (1964) (decrt=e). Section 6 of the Bouldt=r D.nyon Project Act provides <br />that the dam and re~voir sball b~ used for "s.atisIaction of present perfected rights in pursuanQ of <br />Article VlU" of the: compact. <br /> <br />1'10\."",ber 1966] <br /> <br />rrcognized und, <br />Dlenced before t! <br />after. Such a sta: <br />C2USC no divers;, <br />cffective. So far a <br />Ib..in, but, if it h: <br />tions which coul <br />(1) Apart fr, <br />phle streams, d, <br />. . . taken for p: <br />It''led investInen <br />apportionment b <br />an affirmative an' <br />lion, for it has 5:, <br />works and puts tI <br />(or l.he act of C, <br />kClion 8 of the ] <br />more than overf <br />Ri,'er.'" Similarl <br />before a zoning c: <br />10 ti,e second qu, <br />portioned stream <br />(2) Is a cons: <br />ril'hl is perfected <br />in ti,e exercise of <br />allSwered by the ; <br />permil a negativ, <br />Cun!';ress has pov <br />tlream and there] <br />c11<lOses. However <br />ClnWe.ss chose to <br />compensation hal <br />^ pari from th <br />bc~I)' of water Co: <br />l>c:an T release no; <br />JIOtlionment of a , <br /> <br />'9J. United Stales' <br />. 193. Sn, ~.g., JODt <br />......p. w. \\'onbin~on 04 <br />'V", Su Uni[ed St; <br />1"'-" In Morreale, Supr, <br />h...1: 'e,. Sn- Uniled St; <br />l' IpI W. Guy F. AUi.il <br />.... '" u.s. 377 (194( <br />It'. SU Trt:lC2~, s. <br /> <br />