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Show 600 INTERSTATE ADJUDICATIONS feet of the water available in the mainstream. According to the Court, California has no rights in system waters, as this would in- clude rights in the tributaries, and the Court has decided that the tributaries belong exclusively to Arizona. Thus, if California is to obtain any "excess or surplus" waters, the surplus must be flowing in the mainstream. That is, California can assert her right to "surplus" waters only when the flow of the mainstream is more than 7,500,000 acre-feet per year. But if, as the evidence shows, the dependable Lower Basin supply of system waters is only 8,000,000 acre-feet per annum, 2,000,000 of which are in the tributaries, California can look only to 6,000,000 acre-feet in the mainstream. Thus, California will never be entitled to any of the additional Article III(b) waters (500,000 acre-feet) in the Lower Basin system. Those "surplus" waters would necessarily be in the tributaries, and under the Court's interpreta- tion they belong exclusively to Arizona, § 4(a) to the contrary not- withstanding. As a practical matter, the only place California can get system waters is from the mainstream, there being no tributaries of the Colorado Eiver in California. The question to be decided is whether or not under p 4(a) of the Project Act California can take into con- sideration Arizona's uses on her tributaries in determining her (Cali- fornia's) right to divert water from the mainstream. The Court says California cannot, because when the Project Act refers to her rights in system waters as the measuring rod, it really means her rights in mainstream waters. With due respect the majority achieves that result by misreading the Colorado River Compact, the Project Act, and by misreading the legislative history leading up to the California Limitation Act. An analysis of the legislative history will show, as already noted, that the Court's analysis is built mainly upon statements made by the various Senators in arguing the terms of a proposed tri-state compact that was never made. IV. The Project Act needs the Compact to achieve a settlement of the issue of the apportionment of water involved in this case. It is argued that an apportionment, constitutionally, can be achieved only in one of two ways-by an interstate compact or by a decree of equitable apportionment. That proposition need not, however, be resolved here, because (apart from a contingency not relevant here) the Project Act by the express terms of § 4(a) is dependent on the ratification of the Compact.4 If the Compact is ratified, it and the Project Act are to supply the measure of waters which California may claim.5 * Under § 4 (a) of the Project Act it Is provided that if all seven States fail to ratify the Compact in six months (which in fact they did fail to do), the Project Act shall not take effect until six of the States, including California, ratify the Compact and waive the provisions of Article XI of the Compact (which required approval of all seven States) and the President has so declared by public proclamation. A further condition was the passage of California's Limitation Act. The Presidential Proclamation is dated June 25, 1929. 46 Stat. 3000; and California's Limitation Act was approved March 4, 1929, and became effective August 14, 1929. 5 The Colorado River Compact is referred to many times in the Project Act-§ 1, § 4(a), § 6, § 8, § 12, § 13, | 18, and § 19. By § 18 the rights of the States to waters within their borders are not interfered with "except as modified by the Colorado River compact or other interstate agreement." By § 8(a) "all users and appropriators" of water are "subject to and controlled by said Colorado River compact . . . anything in this Act to the contrary notwithstanding . . ." |