Laserfiche WebLink
<br />Co <br /> <br />21-33 <br /> <br />LA W OF THE COLORADO RIVER <br /> <br />S 21.05[1] <br /> <br />S 21.05 Legal Theories Potentially Providing Relief to <br />the Upper Basin <br /> <br />[1] Requirement of Article III(d) of the Compact That <br />the Upper Basin Not Deplete the River Below an <br />Aggregate of75 m.a.f. for Any Ten-Year Period <br /> <br />Are there legal theories sufficient to support an action to <br />relieve, at least in part, the Upper Basin from an obligation <br />of Article III(d) not to deplete the flow of the River below 75 <br />m.a.f. at Lee's Ferry for any ten-year period? At least three <br />principal theories warrant consideration: establishment of <br />the equality of the 1922 apportionment; rescission or refor- <br />mation of the Compact under principles of contract law; and <br />construction of the Boulder Canyon Project Act as a statu- <br />tory apportionment of water between the Upper and Lower <br />Basins. <br /> <br />[a] Construe the Compact According to Its Plain <br />Language and Intent <br /> <br />Article III might simply be construed to subordinate the <br />Paragraph (d) non-depletion duty to the paramount equal 7.5 <br />m.a.f. per annum apportionment as between the two basins <br />provided by Paragraph (a). A ratified compact is a statute, <br />and the initial guide to the meaning of a statute is its own <br />language.124 The very first paragraph of Article III appor- <br />tions "in perpetuity" to the Upper Basin, as well as to the <br />Lower, "the exclusive beneficial consumptive use of <br />7,500,000 acre feet of water per annum." By stating this <br />right so prominently and emphatically, Article III seems to <br />accord it primacy over all subsequent provisions, including <br />Paragraph (d). Moreover, for reasons of history described be- <br />low, one can fairly say that Paragraph (d) was drafted as a <br />means to implement administration of the equal division. <br /> <br />[b) Rescission of the Compact <br /> <br />In West Virginia ex rei. Dyer v.' Sims, 125 Justice Frank- <br />furter, writing for the Court, observed, "a Compact is after <br /> <br />124 See March v. United States. 506 F.2d 1306. 1313 (D.C. Cir. 1974). <br />125341 U.S. 22 (1951). ' <br /> <br />" <br />