WSP07342

• File Number: 8200.300.40
• Description: Colorado River Compact
• Basin: Colorado Mainstem
• Date: 5/19/1997
• Author: James S. Lochhead
• Title: The Perspective of the State of Colorado in 1922 - Did We get What We Bargained For?
• Water Supply Pro - Doc Type: Publication

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Colorado River Compact Symposium
James S. Lochhead
Page 7

Colorado's desire for a perpetual allocation was achieved in
the final Compact. Article III (a) apportions exclusive
beneficial use of water to each basin "in perpetuity. ' ,
The Compact has no time limit on this provision.

No Interstate Operation of the Prior Appropriation Doctrine

Carpenter was well ~~are of interstate water litigation. In
Kansas v. Colorado, Colorado asserted its sovereign right

to fully deplete the river. The Supreme Court held that
Kansas, as a downstream state, did not have the right to all
of the water in the Arkansas River, undepleted by Colorado.
But the Court also held that Colorado, as the state of
origin, did not have the right to retain all the water
within its borders. Although the Court dismissed the Kansas
claims, it stated it would, if necessary, impose a division
of water without regard to the relative dates of use in the
two states.
12
Carpenter was Colorado's counsel in Wyominq v. colorado,

He repeated the sovereignty
the Kansas case, and also

arguments Colorado had made
argued that even under

in
the

equitable apportionment doctrine Colorado had the right to
all the water in the Laramie River. These were similar
arguments to those he later made to the Compact Commission.
However, Carpenter was shocked to learn that the Court would
not follow its previous ruling in Kansas v. Colorado, if the

two states both followed the prior appropriation doctrine
(Kansas water law is based on the riparian doctrine).
Instead, the Court applied the prior appropriation doctrine
in an interstate basis. In his report on the Compact, he
discussed his view of the effect of the case, and how the
Compact had resolved the issue:

The doctrine so announced [in

Wyominq v. Colorado]

leaves the western States to a rivalry and a contest of
speed for future development. The upper State has but
one alternative, that of using every means to retard
development in the lower State until the uses within
the upper State have reached their maximum. The States
may avoid this unfortunate situation by determining
their respective rights by interstate compact before

11
12 206 U.S. 47 (1907).
259 U.S. 419 (1922).