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<br />Colorado River at Lee Ferry each year, regardless of any
<br />deficiency in runoff, so that if there is less than 15 million acre-
<br />feet of water available at Lee Ferry in any year, the entire
<br />shortage must be borne by the Upper Basin. The time may
<br />now be approaching when this concept should be rectified.
<br />Article lIJ(a) of the Compact makes an apportionment of
<br />water of 7-1/2 million acre-feet to the Upper Basin and 7-1/2
<br />million acre-feet to the Lower Basin. It was thought that there
<br />was substantially more than 15 million acre-feet available for
<br />division and, therefore, Article lIJ(b) provided for the Lower
<br />Basin to increase ns beneficial consumptive use by 1 million
<br />acre-feet per year. In addition, paragraph (c) provided for
<br />water for the Republic of Mexico out of surplus waters above
<br />the 16 million acre-feet provided for in subparagraphs (a) and
<br />(b). Subparagraph (c) also provided that if there was not a
<br />sufficient surplus to meet the Mexican obligation, the burden
<br />of any such deficiency would be borne equally by the Upper
<br />and Lower Basins, again emphasizing an equal division of
<br />responsibility. Subparagraph (f) provided for a further equi-
<br />table apportionment any time after October 1 , 1963, after the
<br />16 million acre-feet had been totally consumed. Since 1963,
<br />the river has never reached 15 million acre-feet. Conse-
<br />quently, all thought of a further apportionment has been
<br />abandoned.
<br />In order to avoid the injury which might occur as the result
<br />of a particularly dry year or dry period, Article III(d) attempted
<br />to make the equal division of water between the Upper and
<br />Lower Basins workable by providing a ten-year running
<br />average of 75 million acre-feet, rather than requiring 7-1/2
<br />million acre-feet each and every year.
<br />When Article lIJ(c) provided for Mexico's claims, it clearly
<br />made the additional apportionment of Article lIJ(b) water a
<br />burden to be borne equally by the Upper and Lower Basins
<br />without providing a guarantee of flow by the Upper Basin.
<br />Careful consideration should be given to the proposition of
<br />whether or not the lIJ(b) apportionment was intended not to
<br />interfere with the basic apportionment of 15 million acre-feet,
<br />but effective only ifthere were a surplus over that amount, re-
<br />gardless of the further apportionment provided for in III(f).
<br />There is provided in III(f) for further apportionment of flows
<br />beyond the 15 million acre-feet anticipated in lIJ(a), the one
<br />million acre-feet in III(b), and the Mexican water of III(c). III(f)
<br />leaves the apportionment wide open-all to Lower Basin, all
<br />to Upper Basin, or whatever. Of course, the additional appor-
<br />tionment under III(f) available after 1963 will not occur, as we
<br />discuss below.
<br />
<br />. . . it must be borne in mind that there
<br />is an evident intent in the Compact to
<br />divide the water equally between the
<br />UpperandLowerBasms...
<br />
<br />Those in the Upper Basin who have responsibility for
<br />implementation of the Colorado River Compact and the
<br />Upper Colorado River Compact need to keep in mind that
<br />Article III(a) and (b) are apportionments of water, but that
<br />Article III(d) is not an apportionment but simply a device to
<br />implement the apportionment. When the Lower Basin seeks
<br />to use III( d) as an guarantee of 7-1/2 million acre-feet of water
<br />annually, on an average, it must be bome in mind that there
<br />
<br />is an evident int~nt in the Compact to divide the water equally
<br />between the Upper and Lower Basins, and that III(d) is simply
<br />an iIl-cenceivec! manner of dividing the water equally based
<br />on a mutual mistake of fact.
<br />Flows Available In the Colorado River
<br />The. State Ehgineer is exceedingly well aware of the fact
<br />that of the 26 years of recorded flow at Lee Ferry prior to the
<br />negotiation of the Compact, the last 24 years far exceeded
<br />150 million acr,e-feet per decade of water available for divi-
<br />sion. The fact is that the division was made on recorded flows
<br />which iare the highest in the entire history of the Colorado
<br />River 'and have never been met since the making of the
<br />Compact. Thelfacts were sufficiently obscure at the time of
<br />the Cpmpact negotiations that the states believed there
<br />would be a substantial amount of water available for further
<br />division among them in the future and provided a date forthat
<br />further division. The date has long since passed, and every-
<br />one who knows anything about the matter is aware that there
<br />is no surplus, ~nd, as a matter of fact, there is a deficiency of
<br />water, when f,lill utilization is made by each state of its
<br />allotrT)ent. .
<br />
<br />
<br />The fact/is that the division was made
<br />on recdrded flows which are the
<br />highest !in the entire history of the
<br />Colorado River and have never been
<br />met sind,e the making of the Compact.
<br />I
<br />In additioQ to physically recorded flows, we now have
<br />aCCeSs to tr~e ring records which confirm the fact that the
<br />Compact was made on a mistaken set of facts, to wit: The
<br />flows used as the basis for division of water among the states
<br />of the Colorado River Basin were the highest since the year
<br />1500. In addition, we are aware now of five drought periods
<br />whiqh have qccurred in the course of history of more than a
<br />thirc! century! each, when n is certain that the flows at Lee
<br />FerrY will be ~uch that there is much less than 15 million acre-
<br />feet;of waterito divide between the Upper and Lower Basin~.
<br />In fact, the river may become so deficient that unless there IS
<br />equ~1 division between the Upper and Lower Basins, and the
<br />Upper Basin is held to a 75 million acre-foot delivery at lee
<br />Ferry for eaQh successive ten-year period, there would be a
<br />subStantial ieduction in water for the Upper Basin states.
<br />ReformatIon of the Compact
<br />As a matter of equny and justice, the Lower Basin is
<br />enti,lIed to k~ow now, before n spends more.money ~n furth~r
<br />water development out of the Colorado River BaSin, that It
<br />do~s not have an assured supply of 75 milli~.n acre-feet every
<br />teni succes~ive years. In order that equnles may not run
<br />agllinst the ,Upper Basin, the time has come for the Upper
<br />Basin states to join together in litigation seeking the reforma-
<br />tion of the Compact, which is a contract as well as a treaty
<br />ampng the states. Reformation of a contract can be made to
<br />conform to jhe true facts when the contract was made upon
<br />thEi basis of a mutual mistake of fact. The reformation would
<br />be ion the qasis of securing an equal division between the
<br />Up~er and the Lower Basins which would simply require a
<br />change of t~e number to meet the now proven situation.
<br />trhere is po reason to try to renegotiate the entire Colorado
<br />
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