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<br />114
<br />
<br />Edward W. Clyde
<br />
<br />met on a ten'year basis. the Lower Basin, with its own storage, can
<br />assure its own annual use of II1(a) water. The II1(b) water would come
<br />from the Lower Basin tributaries which are not physically available to
<br />the Upper Basin, Water for Mexico must then be met from any surplus,
<br />Then, in my opinion, the Upper Basin states clearly have the right
<br />to store the remaining surplus water to the extent needed to provide
<br />for their own allocated consumptive uses and to meet their obligations
<br />at Lee Ferry,
<br />Many people have given their views concerning the rights of the
<br />Upper Basin to so withhold water, A difference of opinion has existed
<br />from the very beginning, For example, Mt, A, p, Davis, Commissioner
<br />of Reclamation, stated one extreme in his answer (No, 19) to a series
<br />of questions on January 30, 1923:'
<br />
<br />The Colorado River Compact provides that the Lower Basin
<br />shall be guaranteed an average of 7.500,000 acre~feet of water
<br />annually from the Upper Basin and all of the yield of the
<br />Lower Basin, and that any water not beneficially used (or
<br />agricultural and domestic uses shall likewise be allowed to run
<br />down to use below. This provides for all known uses of water
<br />in the Lower Basin and a very large surplus for such uses as
<br />may develop in the future.
<br />
<br />Opposed to this is the position taken by the state of Colorado in
<br />a resolution first introduced at a meeting of the Upper Colorado Com-
<br />mission at Santa Fe on September 2J and 24, 1958:
<br />
<br />The States of the Upper Division have the right to have
<br />impounded in Glen Canyon Reservoir all the water o( the
<br />Colorado River flowing into it, except waters required by the
<br />Colorado River Compact to pass Lee Ferry (or downstream
<br />domestic and agricultural purposes. not to exceed, 75,000.000
<br />acre~(eet in any consecutive ten~year period, and (or such
<br />fulfillment o( the Mexican Treaty obligation as may be required
<br />by the Colorado River Compact,
<br />
<br />Herbert Hoover' also commented on this marter as follows:
<br />
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<br />
<br />Question 14: Can paragraph (c) of Article III be construed to
<br />mean that the states o( the upper division may withhold all
<br />except 75,000,000 acre~feet of water within any period of 10
<br />years and thus not only secure the amount to which they are
<br />
<br />RESPONSE TO PROLONGED DROUGHT
<br />
<br />115
<br />
<br />entitled under the apportionment made in paragraph (a) but
<br />also the entire unapportioned surplus waters of the Colorado
<br />River!
<br />
<br />No, Paragraph (a) of Article III apportions TO the Upper Basin
<br />75,000,000 acre-feet per annum, Paragraph (c) of Article 111
<br />provides that the States of the upper division shall not
<br />withhold water that cannot be beneficially used. Paragraphs (f)
<br />and (g) of this article specifically leave to further
<br />apportionment water now unapportioned. There is. therefore.
<br />no possibility of construing paragraph Cd) of this article as
<br />suggested.
<br />
<br />"
<br />I..
<br />
<br />Mr, Hoover further noted in his answer ro Question 17 that probably
<br />neither basin would particularly benefit from the provisions of Article
<br />lII(e), for that paragraph "applies only to an unreasonable or arbitrary
<br />withholding or demand,"
<br />Mr, Elmer Bennett. legislative counsel for the Department of the
<br />Interior,' noted that the compact itself refers to and contemplates the
<br />storage of watet, and that storage is indispensable for the Upper Basin
<br />to use the water apportioned to it and to meet its guarantees to the
<br />Lower Basin. Reasonable storage of water for these purposes could not
<br />be considered an arbitrary or unreasonable withholding of the water.
<br />I agree,
<br />The Lower Basin states have from time to time contended that
<br />water stoted in Lake Powell is stored only for power purposes,9 Glen
<br />Canyon Dam is located too far downstream to permit much direct
<br />divetsion of water therefrom for agricultural and domestic uses in the
<br />Upper Basin; nevertheless. the water is used for these purposes by
<br />exchange. Under the exchange. water is released to meet the Upper
<br />Basin states' compact obligations (which otherwise would have ro be
<br />supplied from direct flow). and in exchange therefor, direct flow water
<br />could be used from all the Upper Basin streams,
<br />As between the basins there are a number of other conflicts, They
<br />have been discussed in detail elsewhere," Curtailment within the
<br />Upper Basin to meet the Lee Ferry obligations is discussed below in
<br />connection with the Upper Basin compact.
<br />It appears rather clear that the people who negotiated the Colo-
<br />rado River Compact based the allocation on a murual mistake of fact
<br />concerning the yield of the river, Data then available suggested a
<br />
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