<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
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<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,
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<br />RESPONSE TO PROLONGED DROUGHT
<br />
<br />129
<br />
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<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 />
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