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Show VIII-4 UPDATING THE HOOVER DAM DOCUMENTS between Lower Basin states "the waters of the Colorado River System [are] not covered by the terms" of the Compact. (Colorado River Compact, Art. VI(a); see Ariz. Exs. 46, 49.) Lastly, Arizona argues that Article III(a) relates to the mainstream only because IH(a) and III(d) are correlative, III(d) being III (a) multiplied by ten, and Article III(d) is clearly a mainstream measurement. This argument is unacceptable. Since Article III (a) imposes a limit upon appropriation whereas III(d) deals with supply at Lee Ferry, an interpretation which makes these two provisions correlative one to another is inadmissible. Since a substantial quantity of water is lost through reservoir evaporation and channel losses as it flows from Lee Ferry, the point where the III(d) obligation is measured, to the diversion points downstream from Hoover Dam, where most of the appropriations are made, 7,500,000 acre-feet of water at Lee Ferry will supply a considerably smaller amount of appropriations below Hoover Dam. Moreover, HI (a) extends to appropriations on Lower Basin tributaries as well as the mainstream. Such appropriations cannot possibly have any relation to the quantitative measurement of the flow of water at Lee Ferry. The Compact does affect the supply of water available to the Lower Basin. Two provisions of the Compact relate to supply, Article III(c) and Article III(d). Article III(d) presents no questions of interpretation. Under it, the Upper Division states may "not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre-feet for any period of ten consecutive years, reckoned in progressive series beginning with the first day of October...." With the storage provided by Lake Mead, and barring a drought unprecedented in the recorded history of the River, the Lower Basin has, under the guarantee of the Compact, available for use at Hoover Dam a minimum of 7,500,000 acre-feet of water per year, less transit losses between Lee Ferry and the dam, evaporation loss from Lake Mead, and its share of the Mexican treaty obligation. The Compact provides for the delivery of water by the states of the Upper Division at Lee Ferry, in addition to the supply guaranteed by HI(d), when the obligation to Mexico cannot be satisfied "from the waters which are surplus over and above the aggregate of the quantities specified in paragraphs (a) and (b) [of Article III of the Compact]. . . ."In that event, "the burden of such deficiency shall be equally borne by the upper basin and the lower basin, and whenever necessary the states of the upper division shall deliver at Lee Ferry water to supply one-half of the deficiency so recognized in addition to that provided in paragraph (d)" of Article III. At the time the Compact was signed (1922) and when it became effective (1929), the United States was under no treaty obligation to Mexico and the Compact created no obligation. However, in 1944 the United States and Mexico negotiated a treaty, proclaimed in 1945, under which the United States has the duty to deliver 1,500,000 acre-feet annually to the United States of Mexico at the international boundary.13 Several questions arise regarding the effect of Article III(c), and the parties have offered various suggestions regarding its interpretation. These questions include: (1) what is the meaning of the word "surplus"? (2) if surplus is not sufficient to supply Mexico, how should the Upper Basin's further delivery obligation be measured under the language of Article III(c)? In my judgment, the various questions advanced by the parties concerning construction of this subdivision ought not to be answered in the absence of the states of the Upper Basin; nor need they be answered in order to dispose of this litigation affecting only Lower Basin interests. Under the interpretation which I propose of the Boulder Canyon Project Act and the water delivery contracts made by the Secretary of the Interior pursuant thereto, it is unnecessary to predict the supply of water in the mainstream, in the Lower Basin, in order to adjudicate the present controversy.14 Arizona argues that Article III(b), relating exclusively to appropriations in the Lower Basin, imposes an additional delivery burden on the Upper Basin. She reasons that after the III(a) apportionment is exhausted, the Lower Basin may, under Article HI(b), increase its uses by 1,000,000 acre-feet and that the Upper Basin is obliged to furnish water for this increased IH(b) use, subject only to the Upper Basin's first right to 7,500,000 acre-feet of water under Article HI (a). "This obligation is subject to several qualifications; the treaty is discussed infra at pages 295-296. "Stream flow at Lee Ferry has historically exceeded the maximum delivery obligation under IH(c) and IH(i). Whether this condition will continue upon full development of the Upper Basin is a subject of dispute among the experts which need not be resolved here. |
