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116 Ed"",d w. Clyde r- bigger river than later flow measurements have demonstrated. Further, the compact itself reveals that the porties contemplated there would be a surplus above the allocated water and the water needed for Mexico and that this surplus would be divided at some future date, The actual measured flows in the river since that time indicate that there simply will not be sufficient Water in the river to give each basin 7,500,000 acte.feet per year and to give the Lower Basin one million acre-feet and still meet the obligations to Mexico. Once the guarantees at Lee Ferry have been met and the Upper Basin has met its share of the Mexican treaty obligation, there simply will not be 7,500,000 acre. feet available, even with carryover storage, For example, Utah was given 23 percent of the Upper Basin allocation, Were the river to yield 7,500,000 acre-feet for the Upper Basin, Utah would receive 1,713,500 acre-feet per year, However, Utah is only planning to de- velop to a level of l,328,000 acre-feet, or nearly 400,000 acte-feet less than was contemplated, Still, I doubt that the compact will be set aside because of a mutual mistake of fact, The states of the Upper Basin have known of this estimate for forty years, although their present development has not progressed to a point where. for the most part, they are being injured thereby, The U,S, Supteme Court recently denied the application of certain Indian tribes to reopen the Arizona v, California decree, largely in deference to a desire for finality," The merits of a state action to be relieved from the compact guarantees, and so forth, is complex and beyond the scope of this chapter, Finally, all of the Water in the Lower Basin tributaries was not awarded to the Lower Basin by the compact, While this water is not physically available to the Upper Basin, it is a patt of the Colorado River system, Water yielded by the Lower Basin tributaries is, during low-flow periods, the primary soutee of the one million acre-feet awarded to the Lower Basin under Article lIl(b), but if they produce a surplus above the lll(b) one million acre-feet, this Water is surplus to the compact allocations and should be used to meet the obligations of the United States to Mexico, To the extent that obligation is discharged with these "surplus" waters, the Upper Basin is proportionately relieved of its Mexican tteaty obligation. Also, the water stored in the Upper Basin reservoirs is not, to that extent, called on for the Mexican obligation and thus is more finnly available to meet the Article lll(d) guarantee at Lee Ferry and to support Upper Basin lIses. - C-0 'OJ ~ ("\.1 -C') (::) ; .J, d '. " " .1 , , ,'. ';'l :. ;, ~. , , Ii j i . , . :! ~ l . Ii ., ~ I" d: , :~ " " { , ~ J ; . ~ t~' ; ~I : I.. , J ,\i , , " ; ~, t., I' ':' , ., } "I. , ;; :i"t '. -I " l ~ . :. ,1" ';l ;1 ~: ",~. . RESPONSE TO PROLONGED DROUGHT 117 J' I, The Mexican Treaty The United States concluded a treaty with Mexico dealing with the Colorado River on February 3, 1944," The power of the president to enter into foreign treaties is expressly confirmed by Article II, Section 2 of the U,S, Constitution, Article VI of the Constitution provides that the laws of the United States made pursuant to the Constitution and all treaties made under the authority of the United States shall be the supreme law of the land, Article 10(a) of the Mexican treaty provides that there shall be allocated to Mexico a guaranteed annual quantity of 1,500,000 acre- feet from any and all sources, Under Article lO(b), when the United States determines that there is water in excess of the amount necessary to supply uses in the United States and ,he 1,500,000 acre-fee, guar. anteed to Mexico, Mexico may expand its total use to a maximum of 1,700,000 acre-feet total per year, but Mexico is to acquire no rights beyond the 1,500,000 acre. feet. Finally, this article provides that in the event of extraordinary drought or a serious accident ro the irri~ gation systems in the United States, thereby making it difficult for the Unired States to deliver each year the guaranteed quantity of 1,500,000 acre-feet, the Water allotted to Mexico by Article 10 shall be reduced in the same proportion as consumptive uses of water in the United States are reduced, The compact does not define surplus waters, nor extraordinary drought. nor serious accident. With the large amounts of storage available, the annual use Can approach the river's average yield because the surplus water in high-flow years can be stored and carried over to make up the deficiency during dry years, It is now clear, however, that the a\'erage flow of the river will not yield the amount of water which has been allocated plus the Water committed to Mexico. The first Water which should be available for meeting the Mexican obligation is, as noted above, the surplus Water mentioned in Article 1lI(c) of the 1922 compact, However, in a period of prolonged drought there will be no such surplus, and this "surplus" language of Article lll(c) will not come into play, We are now in a wet cycle. In order for the large reservoirs to discharge their flood control obligations, it was announced on January 17, 1983, II by the Upper Colorado River Commission that during ,. "