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Show 140 UPDATING THE HOOVER DAM DOCUMENTS The Special Master rejected the suggestion by Imperial Irrigation District that State law would treat as "perfected" the right to take water in an amount measured by the capacity of existing works, even though said amount of water had never yet been actually diverted and applied to beneficial use. He reiterated that: "...the United States has the power to reserve water for the reasonable future needs of Federal establishments and that certain statutes, executive orders and other orders of withdrawal were intended to exercise this power. The water rights created by such a Federal reservation do not depend upon State law or upon the actual diversion and beneficial use of a specific quantity of water. On the contrary, they are superior to subsequent appropriations under State law, although the subsequent appropriator may be first to divert and use the water." (Special Master's Report, page 309). He further stated that a reservation of water by the United States before June 25, 1929, is accorded the protection given by Section 6 of the Project Act to "present perfected rights" even though, as of that date, the rights were not acquired under State law and all of the water reserved had not been put to beneficial use. In that respect they differ radically from appropriative rights under State law which require the actual diversion and beneficial use of water. Thus, he concluded that water rights reserved before June 25, 1929, for Federal establishments are "perfected rights" within the meaning of Section 6. The Special Master stated that in the unlikely event that water is so short that a State's apportionment is insufficient to satisfy present perfected rights therein, the Secretary must deliver water to satisfy such rights from each of the other State's apportionment in the proportion that each of the other State's apportionment of the first 7.5 maf of mainstream consumption bears to the aggregate apportionment to the two States. C.18 Requirement for a Contract "The water apportioned to each State is delivered to users within the State according to the provisions of the several delivery contracts. No user may consume mainstream water unless there is a contract with the Secretary providing for the delivery of such water. (In footnote 3a, page 312, the Master stated that contracts are not required for Indian Reservations and similar Federal establishments since the Secretary need not contract with himself.) Under the Project Act, State law governs rights and priorities among users within a single State, except for Federal establishments for which water has been reserved independent of State law. As to such establishments, the priorities recommended herein control." (Special Master's Report, page 312.) C.19 Measurement of Consumptive Use The Special Master noted: "Consumptive use is measured at the several points of diversion in each State by a determination of the amount of water diverted from the mainstream less return flow thereto available for consumptive use in the United States or in satisfaction of the Mexican Treaty obligation. The Secretary must keep an account of diversions for each State. He must compute, as accurately as possible, the amount of usable return flow from water diverted and credit this amount to each State. Reservoir evaporation, channel and other losses sustained prior to the diversion of water from the mainstream are not chargeable to the States but are to be treated as diminution of supply. Only after water is diverted from the mainstream are losses on it chargeable to a State as consumption." (Special Master's Report, page 313.) The Special Master stated: "...until a State is prepared to apply to beneficial use all of its apportioned water, it has no cause for complaint if the water within its allocation is consumed elsewhere. Thus if, in any 1 year, water apportioned for consumptive use in a State will not be consumed in that State, whether for the reason that there are no delivery contracts outstanding for the full amount of the State's apportionment, or that users cannot apply all of such water to beneficial uses, or for any other reason, nothing herein shall be construed as prohibiting the Secretary of the Interior from releasing such apportioned but unused water during such year for consumptive use in the other States. No rights to the recurrent use of such water shall accrue by reason of the use thereof." (Special Master's Report, page 314.) |
