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<br />128 <br /> <br />Edward \V Clyde <br /> <br />The Court said that prorating shortages on the basis of each state's <br />allocation might be reasonable, but discretion was left by Congress <br />with the Secretary, and the Court should not bind the Secretary to <br />any particular formula, The Secretary must follow the standards in <br />the act, but otherwise he is free to choose among recognized methods <br />ro be determined by him, The Court noted that the reservoirs had <br />functions to perform other than to provide water for irrigation. It <br />noted flood control and the intent of Congress to improve navigation, <br />to regulate stream flows, and [0 provide for the generation and dis. <br />tribution of power, While both the equitable apportionment of the <br />stream and the priority of existing rights may provide guidelines for <br />allocating shortages, they are not binding, except to the extent that <br />the Secretary is directed to protect rights perfected as of the date of <br />the act. The Court said It saw no parcicular problems with the Sec- <br />retary's broad discretion to prorate shortages because Congress itself <br />still has broad powers and can intervene, Congress subsequently did <br />so in the 1968 Colorado River Basin Act when it provided rhar the <br />Central Arizona Project would be subordinate to present perfected <br />rightholders in the Lower Basin in the event of shortage." This ele- <br />vated California's 4,4 million acre-feet above Arizona's prized project, <br />recapturing for California some of what it lost in the 1963 Supreme <br />Court decision, When shortages do occur, the allocations and pro- <br />rations among Lower Basin states will be made by the Secretary of <br />the Interior, within the guidelines provided in the 1918 and 1968 <br />legislation, and/or by Congress, through new enactments, <br /> <br />The Curtailment and Administration <br />Within Each State <br /> <br />.M <br />~ <br />C!"J <br />N <br />o <br />o <br /> <br />Within its allocated share, each state has. under its own laws, <br />pennilted the appropriation of water. If curtailment of use within the <br />individual states becomes necessary. it is my opinion that the enrire <br />Colorado River system within that state-which includes the river <br />itself, all of its tributaries to the outer reaches of the watershed, and <br />the underground water which is tributary thereto-should be admin- <br />istered as one system. In six of the states, state law follows a priority <br />system. California has a mixed priority and riparian system. Each state, <br />if called upon to curtail, would do so under its own state system, Also, <br /> <br />d, <br />" <br />11': <br />~,,; <br />" <br />,: <br />Jh <br />" <br />, <br />';,', <br /> <br />, ; <br />~ j: <br /> <br />" <br /> <br />I' <br /> <br />I;. <br /> <br />" <br /> <br />(" <br /> <br /> " <br /> ", <br />.. " <br /> ., <br />,1 <br /> -.' <br /> ,;!, <br /> '. <br />" <br /> " <br /> '~'l.. <br /> " <br /> j, <br /> II: <br /> I <br /> I;. <br /> , <br /> I <br /> F: <br /> ., <br /> <br />RESPONSE TO PROLONGED DROUGHT <br /> <br />129 <br /> <br />" <br /> <br />since much of the water in the Lower Basin will be used under Bureau <br />contracts rather than under state appropriations, the terms of the <br />contracts will be important. To some extent, water is used under <br />Bureau contracts in the Upper Basin, but there we usually have the <br />Burea~ water rights themselves dependent upon a state pennit secured <br />by the Bureau under state law. Under California v, United Slates, lB such <br />filings by the Bureau are mandatory, <br />On Lake Mead and Lake Powell there are no s~ch filings, I assume <br />that the Bureau disregarded Section 8 of rhe 1902 Reclamation Act, <br />on the theory thar it was superseded by specific authorizarion for the <br />construction of Boulder Dam and Glen Canyon Dam, Since there are <br />no stare filings for either of these projects, there could be a ptoblem <br />in administering the impoundment of water in hannony with the <br />priority system of state law. Also, Boulder Dam is partly in Nevada <br />and partly in Arizona, and with no state filings it is more likely that <br />Congress could be required to intervene--not to control individual <br />water use (this will be controlled by contract) but in regard to filling <br />the teservoir in competition with other storage and other uses, Where <br />there are such state filings by the Bureau, they, of course, have their <br />priority undet state law, The need to administer the river and its <br />tributaries, including underground water, as a single system was sug- <br />gested by the Utah Supreme Court in Richlands lIT, Co, v, West View <br />lIT, Co," The court there noted that the entire watershed, to its <br />uttemlOst confines covering thousands of square miles out to the crests <br />of the divides which separate the river from its adjacent watershed, <br />is the generating source from which the water of the river comes or <br />accumulates in its channels. Rains and snows falling on this vast area <br />sink into the soil and find their way, by surface or underground flow, <br />and this entire watershed or water table constitutes the river. Any <br />appropriator of water from the channel is entitled to rely and depend <br />upon all of the sources which feed his source of diversion, '" <br /> <br />Indian Water <br /> <br />The water reserved for the Indians under the Winters Doctrine <br />encompasses a very large block of water, <br />In Utah we expect that we will be able to proceed to develop to <br />a level of about 1,328,000 acre-feet a year under Utah's 23 petcent <br />