| OCR Text |
Show CHAPTER VIII 133 specifically authorized to impound the water of the Colorado River in Lake Mead and to exercise custody over the water so impounded through his control, management, and operation of the dam and reservoir. No user, whether it be a State or an individual, may receive the impounded water unless the Secretary, by contract, agrees to release it for delivery to that user. Nothing in the Act purports to require the Secretary to agree to deliver specific quantities of water to any particular State or user, except that Section 6 requires him to satisfy water rights perfected as of June 25, 1929...In short, no contract, no water, and the Secretary determines how much water he will contract to deliver to each State subject only to the limitations on his discretion expressed in the Project Act itself (Special Master's Report, pages 152 and 153). This conclusion, said the Special Master, that the Project Act provided the authority for the allocation of impounded water among the States, was supported by the legislative history of the Project Act. As to the argument that the Project Act constitutes an unconstitutional assumption of power by the United States, the Special Master noted: "Clearly the United States may construct a dam and impound the waters of the Colorado River, a navigable stream (citations)...Clearly, also, once the United States impounds the water and thereby obtains physical custody of it, the United States may control the allocation and use of unappropriated water so impounded, (citations)...Since Section 6 instructs the Secretary to satisfy property rights in mainstream water perfected as of June 25, 1929, the effective date of the Act, these rights are not in jeopardy. Rights that might be recognized as of that date under State law but that do not qualify as perfected rights under Section 6 do not receive this protection....Despite this fact, however, there is no need to pass on questions of ownership of water in navigable streams or of the validity against the United States of rights therein recognized by State law. There has been no showing that nonperfected rights recognized by State law as of June 25, 1929, if any, have not been satisfied since Hoover Dam was constructed. If it develops that such rights are not satisfied in the future, that will be time enough to determine whether they are of such character as require compensation for their taking" (Special Master's Report, pages 160 and 161). The Special Master also rejected the argument that the Project Act constitutes an unconstitutional delegation of legislative power to the Secretary of the Interior because there are insufficient standards to govern his allocation of the water impounded in Lake Mead. He noted that the Act imposes substantial limitations on the Secretary's discretion; e.g., he may not contract with California for more than 4.4 maf out of 7.5 maf of consumptive use of mainstream water nor for more than one-half of surplus (Section 5(a)); he must satisfy present perfected rights (Section 6); contracts for water for irrigation and domestic uses must be for permanent service (Section 5); the Secretary, his permittees, licensees and contractees, "shall observe and be subject to and controlled by" the Colorado River Compact (Sections 8(a), 13(b), and 13(c)); the Secretary and those claiming under him are subject to any compact between Arizona, California and Nevada, or any two of them, approved by Congress (Section 8(b)). The Secretary is subject to the provisions of the Reclamation Law in the operation and management of the works authorized by the Project Act, except as otherwise provided therein (Section 14). The Special Master noted that the Secretary has in fact exercised his discretion by making contracts which apportion the water available in Lake Mead substantially along the lines which Congress proposed in Section 4(a) of the Project Act as a fair and equitable division among Arizona, California and Nevada (Special Master's Report, pages 161 and 162). C. 7 Interpretation of "Waters Apportioned by Article i III(a) of the Compact" The Special Master concluded that Congress intended, in limiting California to 4.4 maf of "the waters apportioned to the Lower Basin States by paragraph (a) of Article III of the Colorado River Compact," simply to limit California's annual uses of water to 4.4 out of 7.5 maf. The Special Master held that Section 4(a) of the Project Act and the California Limitation Act refer only to the water stored in Lake Mead and flowing in the mainstream below Hoover Dam, despite the fact that Article III(a) of the Compact deals with the Colorado River System, which is defined in Article II(a) as including the entire mainstream and tributaries. |
