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Show COLORADO RIVER LITIGATION 585 the Secretary of the Interior the awesome power over the "water" destiny of three States. To what provision does the Court attribute this startling metamorphosis? The fundamental change in approach is apparently found in §4(a), which as adopted contains provisions (1) conditioning the effectiveness of the Act on seven-state ratifica- tion of the Colorado River Compact or alternatively on California's agreement to limit its annual consumption of Colorado River water, together with six-state ratification of the Compact; and (2) giving permission to California, Arizona, and Nevada to enter a further compact apportioning certain waters to the latter two States pursuant to a stated formula. It is manifest that §4(a), on which the Court so heavily relies, neither apportions the waters of the river nor vests power in any official to make such an apportionment. The first paragraph does not grant any water to anyone; it merely conditions the Act's effectiveness on seven-state ratification of the Compact or on six-state ratification, plus California's agreement to a limitation, i.e., a ceiling, on her appro- priations. The source of authority to make such appropriations must be found elsewhere. And the second paragraph of § 4(a), suggesting a particular interstate agreement, similarly makes no apportionment of water among the States and delegates no power to any official to make such an apportionment. Indeed, it was accepted by the Senator from California (Mr. Johnson) only after the following colloquy with its proponent, Senator Pittman of Nevada: "Mr. Johnson. . . . [W]hat I want to make clear is that this amendment shall not be construed hereafter by any of the parties to it or any of the States as being the expression of the will or the demand or the request of the Congress of the United States. "Mr. Pittman. Exactly, not. "Mr. Johnson. Very well, then. "Mr. Pittman. It is not the request of Congress. "Mr. Johnson. I accept the amendment, then." 70 Cong. Rec. 472. Senator Johnson would surely have been surprised to learn that the formula which was not even "the request of Congress" was in truth one which the Secretary was authorized to force down the throats of the States if they did not voluntarily agree to it. Even this brief summary, I think, casts the gravest doubts upon the Court's construction of the Project Act as abolishing state law and accepted principles of equitable apportionment in effecting allocations of water among the States. A more detailed analysis will, I believe, demonstrate the incorrectness of the Court's conclusions on this score and will reveal the constitutional difficulties inherent in the uncon- trolled delegation of power resulting from those conclusions. II. The Background of the Boulder Canyon Project Act Judicial apportionment of interstate waters was established long before the Project Act as an effective means of resolving interstate water disputes. Kansas v. Colorado, 206 U.S. 46. Its acceptability had never been questioned. Priority of appropriation, the basic deter- 94-497-69------38 |
