OCR Text |
Show CHAPTER VIII 139 improvement of navigation, and flood control,' predictions as to future supply, and other relevant conditions in the River Basin. The only specific limitation on his discretion is that he must follow the priorities set forth in Section 6 of the Project Act. The supply of water available for consumptive use in the three States, then, is neither more nor less than the quantity of water that the Secretary annually releases for this purpose. "Of the mainstream water released for consumptive use in the United States the first 7,500,000 acre-feet of annual consumptive use is apportioned as follows: 2,800,000 acre-feet for use in Arizona; 4,400,000 acre-feet in California; and 300,000 acre-feet in Nevada. "If sufficient mainstream water is released in 1 year to satisfy more than 7,500,000 acre-feet of consumptive use in the three States, such additional consumptive use is surplus and is apportioned as follows: 50 percent to California and 50 percent to Arizona, unless and until the Secretary makes a contract with Nevada for 4 percent of surplus, in which event, Nevada shall be apportioned 4 percent of surplus and to Arizona 46 percent of surplus. "In the event that insufficient water is released from the mainstream reservoirs to satisfy 7,500,000 acre-feet of consumptive use in the United States in 1 year, the supply must be prorated among the three mainstream States. Each State's allocation is that proportion of the consumptive uses which can be satisfied by the available water which its apportionment of the first 7,500,000 acre-feet of mainstream consumption bears to the aggregate apportionment to all three States... (The Supreme Court disagreed with this method of apportioning shortages and authorized the Secretary to apportion shortages, Arizona v. California, 373 U.S. 546, 593). "The Secretary of the Interior is required to make deliveries of water in accordance with the apportionments outlined above; the one exception to this requirement is prescribed by Section 6 of the Project Act, which directs that the dam and reservoir be operated in 'satisfaction of present perfected rights in pursuance of Article VIII of said Colorado River compact....' " The Master noted, however, that California's consumptive use may not exceed 4.4 maf, whatever her "present perfected rights" might have been in 1929. C.17 Present Perfected Rights The Master had heretofore construed "present perfected rights" to mean rights perfected as of June 25, 1929, the effective date of the Project Act, and noted that neither the Compact nor the Project Act defines "perfected rights." He stated: "It seems clear, however, that the term was not used in either of these enactments to refer to notices of appropriation which had not yet become the foundation of a going economy-mere paper filings on the River. The use of the term 'perfected rights' rather than the more familiar 'appropriative rights' suggests that Congress intended to limit the protection of Section 6 to rights of a more substantial character than paper filings sometimes recognized as an appropriative right under State law. Congress was concerned that those who were actually using water from the Colorado River and who relied on such water for their existing needs should not be deprived of it because of the proposed dam. But Congress was aware that many paper appropriations had been filed and claims of various sorts made to Colorado River water which, whatever their legal status under State law, were worthless as a practical matter unless and until the dam was built. Congress was not concerned to protect such claims. Projects and water uses developed by virtue of the construction of the dam did not need to be protected against its consequences. Of course, a water right is not a 'present perfected right' within the meaning of Section 6 unless it is recognized under the applicable State law, for if it cannot be vindicated under State law there would be no reason to protect it in the Project Act." (Special Master's Report, pages 307 and 308.) The Special Master concluded: "Hence I conclude that a water right is a 'present perfected right' and is within the protection of Section 6 only if it was, as of the effective date of the Project Act (June 25, 1929), acquired in compliance with the formalities of State law and only to the extent that it represented, at that time, an actual diversion and beneficial use of a specific quantity of water applied to a defined area of land or to a particular domestic or industrial use." (Special Master's Report, page 308.) |