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120 Edward \V Clyde ~ 00 en N C) o the obligations of the Mexican treaty, should be entitled to compen- sation, The difference is based on the following factors, Initially, the federal government, as a proprietor, owned both the land and the water in the West, In addition, the federal govern- ment had its governmental or sovereign powers, including the power under the property clause to dispose of and to manage federal property, In 1866, Congress expressly recognized the right of private apptopri- ation by following state law, 17 Where a private appropriator had pro- ceeded in accordance with that authorization to make his appropriation. the right would vest, The Ninth Circuit Court of Appeals, in a well- reasoned opinion, expressly so held. IS There, a right had been per~ feeted under California law by a livestock operator to use water originating on the public lands, Thereafter, a national monument was expanded to encompass the federnllands where the water was diverted and used. The enlargement of the monument foreclosed the grazing of those lands, and the federal government took the position that this also foreclosed the use of the water, The Ninth Circuit Court of Appeals held otherwise, deciding that the livestock operator had perfected a water right; and while Congress could expand the boundaries of the monument to include addditional federal lands, it could not thereby confiscate the vested water right," As Charles Meyers has noted, the taking of an existing water right may be compensable, but it is not preventable. '0 The courts should hold that as to the unappropriated water (where the federal offer had not been accepted on Februaty 3, 1944) the Mexican treaty was a withdrawal of that part of the 1,500,000 acre- feet not appropriated, Rights initiated thereafter would be subject thereto, Thus, where the water right was initiated after the Mexican treaty, there would, in my opinion, be no right to compensation if it is hereafter necessary to curtail use of water under that right to dis~ charge the federal commitment to Mexico, However, on rights per. fected prior to 1944, when the treaty was made, the taking of the water to meet the federal commitment to Mexico should be com~ pensable.11 Curtailment to meet compact commitments between states- does not involve a taking, No state can issue valid permits for water belonging to a sister state under the doctrine of equitable apportion~ ment. Thus, curtailment to meet a downstream compact commitment would not be compensable, ,i'j::' " , " ~ I'. I.; ~r . l' )i " 'r j '. , I' ,'I "l I;" I! }, ~ ' , " .~ ~ , , '. ' i': ::. J f I , J' ~ ,P, . I J "1,. \ ," " , ~V .,1 .~. :, , ~ , ,I I' i I " ,; L: r,! !' .1 r I,' ,t. I,' 1, ,\ ." 'I" .;. + , . / :~J' " ~ 1\' RESPONSE TO PROLONGED DROUGHT 121 The Salinity Problem Salinity becomes a problem as lIses increase and the flows are decreased. The 1944 Mexican treaty did not by its express terms address the problem of the quality of the water to be delivered thereunder, but subsequent U.S.-Mexican accords have done so, Increased use and reuse of the water, coupled with inflow from sources which are naturally salty, has caused the quality of the water at the Mexican border to deteriorate seriously, The United States has, by statute," as between the United States and the states, accepted the water quality responsibility, It has constructed a desalinization plant near Yuma, Arizona, and is also addressing the problems caused by inflow from sources which are unusually saline. There is a good discussion of the problem and ongoing efforts to control it in Environmental Defeme Fund, Inc, v. Castle, et aI" 2l which was a suit against the Environmental Protection Agency (EPA), the Department of Interior (Interior) and the Bureau of Reclamation (Rec- lamation), The plaintiff complained that EPA had violated Section 303(a)-(e) of the Clean Water Act;" that both Reclamation and Interior had violated Section 201 of the Colorado River Basin Salinity Control Act (CRBSCA);" and that EPA, Interior, and Reclamation had violated Section 102(2)(E) of the National Environmental Policy Act of 1969 (NEPA)." The plaintiff sought an order from the district court, requiring EPA to promulgate regulations setting forth quality standards, imple- mentation plans, and waste load allocations for salinity in the Colorado River Basin; and requiring EPA, Reclamation, and Interior to study, develop, and prescribe alternative methods for salinity control. The district court granted judgment in favor of the defendants on all claims, and the circuit court affirmed, The circuit court noted that, from a basinwide perspective, salinity is the most significant pollutant in the river. At the time of the litigation, damages to the river and its populace in the United States portion of the river system were ap~ proximately 53 million dollars annually. By the year 2000 it is esti- mated that these damages will reach 124 million dollars annually if control measures are not applied. Disregarding annual flow variances, the record also indicates, said the court, that salinity concentrations will increase progressively if adequate control measures are not ef~