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Show 588 INTERSTATE ADJUDICATIONS Congress' entire approach to the problems of prior appropriation was governed by this deep-seated hostility to federal dictation of water rights. When plans for development of the Lower Basin threatened the rights of the upper States, they did not seek the simple (and in my view constitutionally unobjectionable) solution of a legislative appor- tionment. They employed instead the cumbersome method of interstate compact, which required authorization by Congress and by seven state legislatures prior to negotiation and ratification by the same eight bodies thereafter. When it began to appear that Arizona would not ratify the Compact, Congress still did not legislate a general apportion- ment. It built the statute around the provisions of the Compact, insist- ing on ratification by as many States as possible, even at the cost of further delaying the already overdue Project Act. It simply condi- tioned the use of government property and of water stored behind the dam on compliance with the Compact. Attempts to divide the Lower Basin water by interstate agreement continued through the Denver Conference called by the Upper Basin Governors in the summer of 1927-nearly five years after negotiation of the Compact. Yet it was not until 1927 that an amendment was first offered to protect Arizona by a statutory limitation on California's consumption, and it was not until 1928 that the proposal was adopted into the bill.12 Finally, when Congress ultimately resigned itself to the necessity of legislating in some way with respect to the division of Lower Basin waters, it used narrow words suitable to its narrow purpose and to its regard both for the system of judicial apportionment and appropria- tion and for the rights of the States. Even then Congress did not at- tempt to legislate an apportionment of Lower Basin water; it simply prescribed a ceiling for California. In the words of Senator Johnson, ""We write, then, that California shall use perpetually only a specific amount of water, naming the maximum amount which may be used." 69 Cong. Kec. 7250. Even this, Congress was unwilling to do directly. As reported from committee, the bill contained a provision directing the Secretary of the Interior to limit California's consumption in the exercise of his power of contract.13 But this was replaced by the present provision, which reached the same result not via the Secretary's con- tract authority but by the awkward device of requiring California's legislature to consent to the limitation as a condition precedent to the effectiveness of the Project Act. And this was not all; to end the tale Congress added to § 4(a) specific authorization to Arizona, California, and Nevada to enter into an agreement to complete the division of the Lower Basin water-the same cumbersome substitute for direct con- gressional apportionment that had been abortively mooted for six years. This history bears recapitulation. First, the law of appropriation, basic to western water law, was greatly respected, and the solution of interstate water disputes by judicial apportionment in this Court was well established and accepted. Second, the problems created by these doctrines as applied in Wyoming v. Colorado were narrow ones, not requiring for their solution complete abrogation of well-tried prin- J2 68 Cong. Ree. 4763 ; S. Kep. No. 592, 70th Cong., 1st Sess. 2. 13 S. Rep. No. 592, 70th Cong., 1st Sess. 2. |