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<br />112
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<br />Edward W, Clyde
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<br />not release more than the required amount at Lee Ferry, leaving no
<br />place for the extra one million acre.feet to come from except Lower
<br />Basin tributaries. The Mexican treaty obligation is, as noted, to be
<br />shared, The Upper Basin must look to the remainder for its allocated
<br />share,
<br />As between the Upper and Lower basins, curtailment of use in
<br />meeting Mexican treaty obligations is governed by Article lII(c) of
<br />the compact, This article expressly provides that if the United States
<br />makes a treaty with Mexico, the waters to supply the Mexican obli.
<br />gation shall be supplied, "first, from the waters which are surplus, over
<br />and above" the aggregate of the quantities allocated to each basin in
<br />paragraphs lII(a) and (b); and if that surplus is insufficient, then the
<br />burden of such deficiency shall be equally borne by the Upper Basin
<br />and the Lower Basin. However, when it is necessary for the Upper
<br />Basin to supply water to fulfill its part of Ihis obligation, Article III(c)
<br />requires only that the states of the Upper Basin "deliver at Lee Ferry
<br />water to supply one.half of the deficiency so recognized," The river is
<br />a losing river, and this leaves unaddressed the channel losses between
<br />Lee Ferry and Mexico,
<br />The Article IlI(c) direction that all the surplus shall first be used
<br />to provide water to Mexico is on an annual basis, There will be times
<br />when the yield of the river will exceed the sixteen million acre. feet
<br />allocated by Article IlI(a) and III(b) and a surplus will exist to supply
<br />the water to Mexico. As noted below. this will occur this year, How.
<br />ever, in a drought period there will be no surplus in [he natural flow
<br />of the river. Its annual flow has at times been below five million acre-
<br />feet, Either basin may have placed in storage water available in a wet
<br />~ea' wnicn was SIlrplus to tne c"'''pact allocations and to tnat ~ea"s
<br />demand for rhe Mexican treaty, One of the issues that may develop
<br />is whether water stored in a previous wet year could be considered
<br />surplus water in terms of the obligation to Mexico. On the main-stem
<br />federal reservoirs, this has been made moot, as noted below, by federal
<br />statutes which direct the Secretary of the Interior to operate the
<br />reservoirs so as to meet the Mexican obligation. On nonfecleral res#
<br />ervoirs constructed to enable a particular state to use its share, such
<br />stored water should not be considered to be surplus. There is not much
<br />in the language of the compact to assist in this regard, but both the
<br />compact and the treaty, and, for that matter, the general law governing
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<br />RESPONSE TO PROlONGED DROUGHT
<br />
<br />113
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<br />the administration of streams are all on an annual basis, The prioriry
<br />system controls. It dictates when water can be diverted from the
<br />natural stream and either used or impounded. If at the time the water
<br />was stored the Withholding of the water was legally permissible, that
<br />stored water should be treated as the private property of the one who
<br />legally withdrew and stored it, If the next year is dry, those with senior
<br />priorities should not be able to call for that stored water,
<br />I would thus construe "surplus," as used in Ar,icle III(c), to mean
<br />water available during a particular waler year above the fifteen million
<br />acre-feet allocated by Article III(a) and the one million acre.feet
<br />allocated by Article lIl(b), If there is river. flow water above that, it
<br />must be used to supply the Mexican treaty; and neither basin could
<br />store it and thus force the other basin to curtail its use of its III(a)
<br />and III(b) water to meet that year's Mexican treaty obligation. How~
<br />ever-in my opinion-if the Mexican treaty obligation has been thus
<br />met and there is still a surplus, the Upper Basin states, against the
<br />Lower Basin states, can store all that is physically available to their
<br />reservoirs, to the extent that such storage is reasonably necessary to
<br />permit their annual allocated use and to meet their future Lee Ferry
<br />obligations.
<br />My position is disputed by persons who rely on Article lIl(e),
<br />which provides that the states of the Upper Division shall not withhold
<br />watet and the states of the Lowet Division shall not require the delivery
<br />of water which cannot be reasonably applied to domestic and agri.
<br />cultural uses, However, desired overuse by the Lower Basin should
<br />not prevent diversion of water for needed carryover storage purposes,
<br />Only by so storing water can the Upper Basin states even come close
<br />to meeting tnei, allotted annual uses and dischatging theit Lee Ferry
<br />obligations. Such storage is clearly a beneficial use, '
<br />When we next have a period of prolonged drought and the res.
<br />ervoirs are empty, or nearly so, the problem of refilling them will be
<br />an even more serious one than the original filling of Lake Powell,
<br />because the Lower Basin reservoirs would also be empty or low, Most
<br />of the water originates in the Upper Basin, and as we come out of a
<br />drought, the Upper Basin reservoirs could physically be filled hrst,
<br />This use (storage in the Upper Basin) of all the surplus might be
<br />resisted by the Lower Basin. Still when the lIl(d) obligation is being
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