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Show CHAPTER X PRESENT PERFECTED RIGHTS A. Background The term "present perfected rights" first appeared in the "Law of the River" (but was not then defined) in Article VIII of the Colorado River Compact executed November 24, 1922. Article VIII of the Compact provides: "Present perfected rights to the beneficial use of waters of the Colorado River system are unimpaired by this compact. Whenever storage capacity of 5,000,000 acre-feet shall have been provided on the main Colorado River within or for the benefit of the Lower Basin, then claims of such rights, if any, by appropriators or users of water in the Lower Basin against appropriators or users of water in the Upper Basin shall attach to and be satisfied from water that may be stored not in conflict with Article HI. "All other rights to beneficial use of waters of the Colorado River system shall be satisfied solely from the water apportioned to that basin in which they are situate." The term "present perfected rights" next appeared in Section 6 of the Boulder Canyon Project Act of December 21, 1928, 45 Stat. 1057, 1061. The first sentence states: "That the dam and reservoir provided for by Section 1 hereof shall be used: First, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses and satisfaction of present perfected rights in pursuance of Article VIII of said Colorado River Compact; and third, for power...." Section 4(a) of that Act is also relevant in that California's limitation to 4.4 maf/yr includes "...all uses under contracts made under the provisions of this act and all water necessary for the supply of any rights which may now exist...." The Report of the Special Master in Arizona v. California, 373 U.S. 546 (1963), dated December 5, 1960, discusses the term (see pages 152, 153, 161, 234, 235, and 305 through 310). The Special Master stated: "Neither the Compact...nor the Project Act defines 'perfected rights'. 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...." B. Determination Required by Decree Finally, the Special Master's recommended Decree and the Decree of the Supreme Court in Arizona v. California, dated March 9, 1964, 376 U.S. 340, provided these definitions in Article I(G) and (H). These provide: "(G) 'Perfected right' means a water right acquired in accordance with State law, which right has been exercised by the actual diversion of a specific quantity of water that has been applied to a defined area of land or to definite municipal or industrial works, and in addition shall include water rights created by the reservation of mainstream water for the use of Federal establishments under Federal law whether or not the water has been applied to beneficial use; "(H) 'Present perfected rights' means perfected rights as here defined, existing as of June 25, 1929, the effective date of the Boulder Canyon Project Act"; Article VI of the Decree triggered the determination of "present perfected rights." It provides: "Within 2 years from the date of this Decree, the States of Arizona, California, and Nevada shall furnish to this Court and to the Secretary of the Interior a list of the present perfected rights, with their claimed priority dates, in waters of the mainstream within each State, respectively, in terms of consumptive use, except those relating to Federal establishments. Any named party to this proceeding may present its claim of present perfected rights or its opposition to the claims of others. The Secretary of the Interior shall supply similar information within a similar period of time, with respect to the claims of the United States to present perfected rights within each State. If the parties and the Secretary of the Interior are unable at that time to 151 |