AZ vs. CA:12 California Exhibits, Vol. XII; Nos. 1350-1383; 1400-1446; 1501-1518; 1601-1603; 1701-1703

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Lee Ferry; some of it would be lost in transit. That which in the state of nature was lost in transit was not a part of the water that was apportioned by the Commission because it was not a part of the virgin flow at Lee Ferry. This principle possibly can be illustrated best by considering an hypothetical transmountain diversion. Assume 500,000 acre feet being diverted from the Colorado River Basin to some basin outside of the Colorado River Basin. By man's activity the tributary from which that water is being diverted is being depleted at the point of diversion by 500,000 acre feet. The flow at Lee Ferry is not being depleted by 500,000 acre feet because, if that 500,000 acre feet were left in the river, all of it would not reach Lee Ferry. The amount that would not reach Lee Ferry was not a part of the water that was apportioned by the Colorado River Compact Commission. The principles that I am outlining first began to be recognized by some of us in the last Supreme Court case over the Arkansas River, Colorado vs. Kansas, decided December 6, 1943. Kansas alleged that because Colorado had increased its irrigated acreage by some 200,000 acres since the original Kansas vs. Colorado suit was being heard in the early 1900's, the flow across the Stateline had been depleted by an average of 300,000 acre feet per year. The stream flow records of the Arkansas River did not support such claim. Although Colorado had increased its irrigated acreage from about 300,000 acres at the time the testimony in the original suit was closed in 1905 to something over 500,000 acres at the time the last suit was being heard, the increase in acreage did not increase the depletion of flow at the Stateline between Kansas and Colorado. We were able to show this to the satisfaction of the court. To study the principles involved,