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Show CHAPTER VIII 135 required by Section 5 of the Project Act) recite that deliveries under them are subject to the availability of water under the Colorado River Compact and the Boulder Canyon Project Act. The Special Master stated that since Arizona, California, and Nevada have not entered into compacts for the allocation of mainstream water pursuant to Section 4 (a) of the Project Act, the several water delivery contracts made by the Secretary govern this allocation. The Master found that these contracts were valid and binding both on the United States and the other contracting parties with the exception of a provision in the Arizona contract (Article 7(d)) that the United States obligation to deliver water is diminished by uses above Lake Mead and a provision in the Nevada contract (Article 5(a)) and the above noted special use contract with the Arizona-Edison Company. The Special Master stated his view that State law governs intra-State rights and priorities to waters diverted from the Colorado River. The Special Master added that while a contract with the Secretary is necessary under Section 5 of the Project Act for a user to receive mainstream water, the user must also, under Section 18 of the Project Act, be under no disability to receive such water under the applicable State law (Special Master's Report pages 216 and 217). (But see Supreme Court Opinion, Arizona v. California, 373 U.S. 546, 586, where the Court rejected the Master's conclusion.) Although the water delivery contracts were held to constitute an allocation of mainstream water, the Special Master noted that: "...the Secretary is not required to drain Lake Mead dry in fulfilling demands for delivery of water. In the exercise of a reasoned discretion he will decide how much water is to be released from the reservoir each year, and his decision may be based on any reasonable relevant factors. ...But once water is released for consumption in the United States, the delivery contracts oblige the Secretary to apportion certain quantities to each State." (Special Master's Report, pages 221 and 222.) In other words, according to the Master: "The Secretary, in his discretion, decides how much water is to be released from mainstream reservoirs in any particular period. The amount available for consumption in the United States in any one year will be the amount so released less the amount necessary to satisfy higher priorities. The contracts do not limit the Secretary's discretion; they operate only upon mainstream water which is available for consumption in the United States. They require that this water be apportioned as follows: of the first 7.5 million acre-feet of consumptive use in 1 year, 4.4 for use in California, 2.8 in Arizona, and .3 in Nevada; of the remaining consumptive uses during that year, 50 percent for use in California and 50 percent in Arizona, subject to the possibility that Arizona's share may be reduced to 46 percent if the Secretary contracts to allocate 4 percent of surplus for use in Nevada." (Special Master's Report, pages 224 and 225.) C.12 Allocation of Shortages The Special Master concluded that the contractual allocation scheme which determined each State's apportionment of mainstream water, where there is sufficient mainstream water to satisfy 7.5 maf of consumptive use in the United States in 1 year as well as surplus in excess of 7.5 maf, also determined each State's apportionment in the event of insufficient mainstream water to supply 7.5 maf of consumptive use in 1 year. The allocation scheme also required each State to bear the burden of shortage ratably. Thus, in the event there is less than 7.5 maf of water available for consumptive use in the United States in any year each State is apportioned a pro rata share of the available water. (But see Supreme Court Opinion, Arizona v. California, 373 U.S. 546, 593, which rejected the pro rata apportionment and gave the Secretary the authority to apportion shortages.) C.13 Deductions for Uses Above Lake Mead Invalid The provisions of Article 7(d) of the Arizona contract and Article 5 (a) of the Nevada contract reduce the Secretary's obligation to deliver water from Lake Mead for use in those States to the extent that the consumption of water in those States diminishes the flow of water in Lake Mead. The Special Master found that these provisions are in violation of the Project Act and are unenforceable. The apportionment made by the water delivery contracts applies to water stored in Lake Mead and flowing in |