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Show VIII 6 UPDATING THE HOOVER DAM DOCUMENTS Further refinements of this definition are contained in a 70-page brief, labeled Appendix 1 of California's Opening Brief. Other parties have contributed suggestions for construing the term. As used in the Compact, beneficial consumptive use was intended to provide a standard for measuring the amount of water each Basin might appropriate. This was necessary since Article III (a) and (b) imposed limits on appropriative rights. In early applications of the western law of appropriation, diversions were regarded as the measure of water use.16 By 1922, however, it was recognized that the amount of water diverted for irrigation purposes was not necessarily the amount consumed and lost to the stream. Some water applied to the ground would usually reappear in the stream as return flow. The term beneficial consumptive use as employed in the Compact was intended to give each Basin credit for return flow. Thus whether the limits fixed by Article III (a) and (b) have been reached or exceeded is to be determined by measuring the amount of each Basin's total appropriations through the formula, diversions less return flows. In the Compact, "beneficial consumptive use" means consumptive use (as opposed to non-consumptive use, e.g. water power) measured by the formula of diversions less return flows, for a beneficial (that is, non-wasteful) purpose. This understanding of the term is reflected in several of the commissioner's reports. (See Ariz. Exs. 46, 52, 54, 57.)17 As the foregoing discussion indicates, I regard Article III (a) and (b) as a limitation on appropriative rights and not as a source of supply. So far as the Compact is concerned, Lower Basin supply stems from Article III(c) and (d). There are, of course, other sources of supply, for example, Lower Basin tributary inflow, but these are not dealt with as supply items in the Compact. Thus when referring to the Compact, it is accurate to speak of III(c) and IH(d) water, but it is inaccurate and indeed meaningless to speak of HI (a) and IH(b) water. For Compact purposes, Article III (a) and (b) can refer only to limits on appropriations, not to the supply of water itself. It is true that Congress in Section 4 (a) of the Project Act, treated Article III (a) as a source of supply rather than as a limitation on appropriations. The Act speaks of "the waters apportioned to the lower basin States by paragraph (a) of Article III of the Colorado River compact...." Later in this Report I shall develop at some length the meaning of this language and the confusion it has produced in this litigation. Suffice it now to say that the congressional meaning is different from the Compact meaning. One may properly speak of III(a) water in the Project Act sense, but not in the Compact sense. Much of the confusion in this case may be traced to this difference between the two writings, for the parties speak of III (a) water without differentiating between the Compact and the Project Act. One other contention relating to the Compact may be noticed here. Under Section 4(a) of the Project Act, California, in addition to consuming a part of the so-called III(a) water, may share in "excess or surplus waters unapportioned by said Compact." California contends that III(b) uses are unapportioned by the Compact. The argument is based primarily on the fact that Article III(b) does not use the word "apportioned" which appears in Article III(a). Article III(b) gives the Lower Basin "the right to increase its beneficial consumptive use of water by 1,000,000 acre-feet per annum. I have already indicated my view that subdivisions (a) and (b) of Article III operate in identical fashion; that the net effect of the two sections is to limit appropriations in the Upper Basin to 7,500,000 acre-feet and in the Lower Basin to 8,500,000 acre-feet. That both sections effect an apportionment is made clear by Article IH(f), which provides for "further equitable apportionment of the beneficial uses of the waters of the Colorado River System unapportioned by paragraphs (a), (b) and (c)" of Article III. California argues that apportionment has no precise or consistent meaning in the Compact, since in the foregoing provision Article IH(a) and (b) are lumped together with Article III(c) which, according to the argument, clearly does not apportion water to Mexico. California's argument has no merit. Article III(c), while apportioning no water to Mexico, does apportion the burden of a deficiency resulting from the Mexican obligation between the Upper and Lower Basins, and hence effects an apportionment. Moreover, as I have previously had occasion to observe, the reports of the Compact commissioners describe Article HI(b) as an apportionment (See Ariz. Exs. 46, 49, 53, 55, 57). "See Hutchins, Selected Problems in the Law of Water Rights in the West 331 (1942). "The term has since been adopted by branches of the engineering profession to express highly sophisticated formulae useful in the planning of irrigation projects. One such is the Blany-Criddle formula U = KF-R. For an explanation of this formula, see Tr. 13417-13428 (Criddle). Such meanings have no bearing on the term as used in the Compact. |
