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<br />
<br />
<br />54
<br />
<br />STANFORD LAW REVIEW
<br />
<br />[Vol. '9: Page,
<br />
<br />parity,"'" a doctrine which the Master found implicit in the Project Act
<br />but which he apparently could not locate elsewhere, for there are no cita,
<br />tions supporting it.
<br />The legislative history reveals nothing about the apportionment of water
<br />in times of drought, and it may well be the fact that tlle Senators concerned
<br />with the Project Act never considered the problem and acted on the opti.
<br />mistic forecasts supplied to the compact commissioners. If statutory con.
<br />struction is to be guided by what Congress would have provided if it had
<br />considered the question, the likelihood is that priority of appropriation
<br />would have been the governing rule. The three affected states followed that
<br />rule on the Colorado,'" the Supreme Court had been guided by it in an
<br />interstate apportionment in 1922,... and, in the states of all the other Sena.
<br />tors taking a serious part in the debate, it was the exclusive means of allo.
<br />eating water in time of shortage. Yet the author is not as willing as he once
<br />was to assert dogmatically that a provision in the act on shortages would
<br />have adopted priority of appropriation. Further evidence indicates the need
<br />for some caution. The author taught classes in water Jaw in the summer of
<br />1966 to engineers and hydrologists-including senior personnel in the
<br />Corps of Engineers, the Bureau of Reclamation, and several state agencies.
<br />When the class was asked how it would vote as Senators on the question of
<br />handling shortages, it supported the Master's solution of prorationing by a
<br />substantial majority.
<br />Whether or not delegation to the Secretary can be defended on the basis
<br />of legislative intention, a presentable argument can be made that tlle Coun
<br />contrived a sound political and institutional solution in leaving the standard
<br />for apportioning shortages undetermined and delegating to the Secretary
<br />the power to fix the standard when it became necessary to do so. It can be
<br />argued that the Court's disposition of the question is the one most likely to
<br />produce a voluntary congressional solution. The Secretary of the Interior
<br />is not likely to rush into print with a set of regulations on a subject involv.
<br />ing millions of dollars and powerful political forces on each side.'"
<br />Yet the existence of the Secretary's power tends to create an uncertainty
<br />that the parties may wish to dispel through mutual agreement. The argu'
<br />
<br />211. M{Ut",'$Re-porl~36.
<br />:112. California ba5 a double system of riparian nlm appropriative rights, but all rights on tb~
<br />Colorado have been treated as appropr~tive. and the: StvC:D Pany Water Agreement among users of
<br />the: Colorado procttds on the: principle: of priority of appropri2tion. The: Seven Pany Water Agree-
<br />mc:nt is incorporated in the: Secretary's water ddivery contrOlcts with California agencies. Su, e.,..
<br />the: Coachdla Valley County Water Disl. Contract of Oct. IS. 1934. rc:printc=d in Wilbur 6: Ely, Dp.
<br />cit. supra Dote 163, at A633.
<br />213. Ste' Wyoming". Colorado, 259 U.S. 429 (J922.).
<br />214. If thc= supply for consumptive we in the Lower Basin is 6 million .acre-feet, the differenCl'
<br />to California betwc=en priority of appropriation and prorationing is nearly J million acrc=-fc=t=t, 01
<br />,ubs~ntiaJly aU of Los Angdc=s' Colorado River supply. Prioriry of appropriation would protect ~lj.
<br />fomia priorilies up to 4.4 million :len-feet. Prorationing on the basis of 44175 of 6 million acrc=-frtl
<br />would give California only 3.52. million acre-feet. Eight hundred and eighty thousand acre-feet it
<br />worth fighting for.
<br />
<br />to:o.-cmhcr 1966 )
<br />
<br />ment in defense
<br />Con~ss apporl
<br />did not foresee "
<br />V"C no thought,
<br />&hort:agt present,
<br />noW be made by
<br />dunce of gcttin,'
<br />U to k~\'e tI,e sh,
<br />an.1 unf~\'orablc
<br />I",,", under tllis I
<br />.. h~l Congress \,
<br />~n.1 upon th~t b"
<br />il:e" (or from t1
<br />Jilions. True, 0
<br />t" rest on the Pre
<br />~n>llIC dl~n the
<br />ruk ~t al/..
<br />But, it can be
<br />.ion th~t the COl
<br />tieln on the grou:
<br />;. th,t, if the Co
<br />Ari7.0na right b,
<br />Ihr Bureau of R
<br />^,i1.llna needed
<br />I:or the Court tc
<br />elltirlrd to if the
<br />Iht .~n>e' as dism
<br />,,~n now come b
<br />dru power to aJ
<br />il'CU for a furtl,
<br />"'uuld have no u
<br />the question for
<br />ul .Ierision, then
<br />Huuse to keep d
<br />A,,,J of course tI:
<br />11.i. long an,
<br />powcr in the Se,
<br />thing ends up as
<br />-.urdy an inde
<br />IlruClure is carri,
<br />1l/2S. Jt t1lOught i
<br />DIem could prOC(
<br />
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