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Show CHAPTER IX 145 Lee Ferry, that is to say, an annual average of 7,500,000 acre-feet of mainstream water." (Opinion page 570.) And finally, in considering California's claim to share in the tributaries of other States, it was important that from the beginning of the discussions and negotiations which led to the Project Act, Arizona had consistently claimed sole use of the Gila River, upon which her existing economy depended. E. Congress Provided for Apportionment of Water Thus the Supreme Court concluded: "The legislative history, the language of the Act, and the scheme established by the Act for the storage and delivery of water convince us also that Congress intended to provide its own method for a complete apportionment of the mainstream water among Arizona, California, and Nevada." (Opinion page 579.) The Court further stated: "Having undertaken this beneficial project, Congress, in several provisions of the Act, made it clear that no one should use mainstream waters save in strict compliance with the scheme set up by the Act. ...To emphasize that water could be obtained from the Secretary alone, Section 5 further declared, 'No person shall have or be entitled to have the use for any purpose of water stored as aforesaid except by contract made as herein stated.' " (Opinion, pages 579-580.) "These several provisions, even without legislative history, are persuasive that Congress intended the Secretary of the Interior, through his Section 5 contracts, both to carry out the allocation of the water of the main Colorado River among the Lower Basin States and to decide which users within each State would get water. The general authority to make contracts normally includes the power to choose with whom and upon what terms the contracts will be made." (Opinion page 580). "...the Secretary is bound to observe the Act's limitation of 4,400,000 acre-feet on California's consumptive uses out of the first 7,500,000 acre-feet or mainstream water. This necessarily leaves the remaining 3,100,000 acre-feet for the use of Arizona and Nevada. ...Nevada...took the position...that her conceivable needs would not exceed 300,000 acre-feet which...left 2,800,000 acre-feet for Arizona's use. Moreover, Congress indicated that it thought this a proper division of the waters when in the second paragraph of Section 4(a) it gave advance consent to a tri-State compact adopting such division. While no such compact was ever entered into, the Secretary by his contracts has apportioned the water in the approved amounts and thereby followed the guidelines set down by Congress." (underscoring added) (Opinion, pages 583-584.) E. 1 Prior Appropriation Inapplicable The Court rejected California's contention that the traditional Western water law of prior appropriation should determine the rights of the parties to the water. It noted that in an earlier version of the Boulder Canyon Project Act the bill did limit the Secretary's contract power by making the contracts "subject to rights of prior appropriators" but that restriction did not survive and that "...had Congress intended so to fetter the Secretary's discretion, it would have done so in clear and unequivocal terms, as it did in recognizing 'present perfected rights' in Section 5." (Opinion, page 581.) E.2 State Water Law Inapplicable The Court rejected the arguments that Congress in Sections 14 and 18 of the Project Act took away practically all the Secretary's power by permitting the States to determine with whom and on what terms the Secretary would make water contracts. It was the Court's view that nothing in those provisions affected the Court's decision that it is the Act and the Secretary's contracts, not the laws of prior appropriation, that control the apportionment of water among the States. The Court held, contrary to the Master's conclusion, that "the Secretary in choosing between users within each State and in settling the terms of his contracts is not bound by these Sections to follow State law." |
