AZ vs. CA:25 California Exhibits, Vol. XXV; Nos. 7501-7859

page 2

July 2 CONGRESSIONAL RECORD-SENATE 10624 EXTRACTS FROM THE LAPRADE-CARSON OPINION Would the State of Arizona have authority to build a dam across the main stream of the Colorado River above Boulder Dam, and divert waters therefrom for irrigation and power through ditches, tunnels, and other works across the public domain, without the consent of the Federal Government? ******* Congress in the Boulder Canyon Project Act, (c) and (d) of section 13, makes the use of any right-of-way, license or privilege necessary or convenient for the use of the waters of the Colorado River or its tributaries, upon the express condition and with the express covenant that the rights of the recipients or holders thereof to waters of the river or its tributaries for which the same are necessary, convenient, or incidental and the use of the same, shall be subject to and controlled by said Colorado River compact. In view of the foregoing cases and decisions it is clear that Arizona could not construct a dam above Boulder Dam without agreeing to the conditions attached. It is provided in article 8 of the Colorado River compact: " Present perfected rights to the beneficial use of waters of the Colorado River system are unimpaired by this contract. Whenever storage capacity of 5,000,000 acre-feet shall have been provided on the main Colorado River within or for the benefit of the lower basin, then claims of such rights, if any, by appropriators or users of water in the lower basin against appropriators or users of water in the upper basin shall attach to and be satisfied from water that may be stored not in conflict with article III. "All other rights to beneficial use of waters of the Colorado River system shall be satisfied solely from the water apportioned to that basin in which they are situate." It is thus apparent that the use of water in the lower-basin States is, according to the terms of the Colorado River compact, limited to that apportioned in article III (a) to 7,500,000 acre-feet per annum and article III (b), 1,000,000 acre-feet per annum included for the Gila River. Arizona, of course, is not bound by the terms of the Colorado River compact, not having ratified the same; but according to the condition attached to the rights-of-way, the use of such waters would be subject to the Colorado River compact although not ratified by the State of Arizona, and the total use of water in the lower-basin States, as defined by the Colorado River compact, would be limited as above set forth. ***•••• For the foregoing reasons, It Is my opinion that your question must be answered in the negative, and that the State of Arizona does not have the legal right to build a dam across the main stream of the Colorado River, above Boulder Dam, and divert waters therefrom for irrigation and power, through ditches, tunnels, and other works across the public domain, without the consent of the Federal Government. Yours very truly, Arthur T. LaPrade, Attorney General. Chas. A. Carson, Jr., Special Assistant.