AZ vs. CA:24 California Exhibits, Vol. XXIV; Miscellaneous

page A38

A38 APPENDIX 205 upper States, the return flow, ultimately large in quantity, necessarily runs down the stream. The large reservoir sites capable of impounding the flow for more than one year are in the lower, not the upper, basin, and it would be a physical impossibility for the upper States to withhold all the flow of the river for any long period, even if they desired to do so. For these reasons, I answer this question in the negative. Question 14- Can paragraph (d) of Article III be construed to mean that the States of the upper division may withhold all except 75,000,000 acre-feet of water within any period of 10 years and thus not only secure the amount to which they are entitled under the apportionment made in paragraph (a) but also the entire unapportioned surplus waters of the Colorado River? No. Paragraph (a) of Article III apportions to the upper basin 7,500,000 acre-feet per annum. Paragraph (e) of Article III provides that the States of the upper division shall not withhold water that cannot be beneficially used. Paragraphs (f) and (g) of this article specifically leave to further apportionment water now unapportioned. There is, therefore, no possibility of construing paragraph (d) of this article as suggested. Question 15. Does paragraph (d) of Article III in any way modify the obligation of the States of the upper division, as expressed in paragraph (c), to permit the surplus and unapportioned waters to flow down in satisfaction of any right to water which may hereafter be accorded by treaty to Mexico? Within any year of a 10-year period, could the States of the upper division shift to the States of the lower division the entire burden of supplying such water to Mexico? (a) No. It is provided in the compact that the upper States shall add their share of any Mexican burden to the delivery to be made at Lee Ferry, whenever any Mexican rights shall be established by treaty. By paragraph (c) of Article III, such an amount of water is to be delivered in addition to the 75,000,000 acre-feet otherwise provided for. (b) In the face of the specific provision of Article III (c) that the burden of any deficiency must be "equally borne," I can see no possibility of placing upon the lower division the entire burden. If the surplus is sufficient, there is no burden on anyone. If it is insufficient the plain language is that it must be equally shared, with the equally plain provision that the upper division must furnish its half. Question 16. Why is it that provision is made in paragraph (f) of Article III for a further apportionment, after J+0 years, of the waters of the Colorado River system unapportioned by paragraphs (a), (6), and (c),