OCR Text |
Show 598 INTERSTATE ADJUDICATIONS than half of "any excess or surplus waters unapportioned by said com- pact."1 These waters are defined in the Colorado River Compact as system waters, and not as waters in the mainstream. Yet the Court restricts California to mainstream waters. That is the essence of the difference between us. III. As I read the Colorado River Compact and § 4(a) of the Project Act, California is entitled to add all uses of system waters by Lower Basin States in the tributaries to those waters available in the main- stream to determine (1) how much water she can take out of the first 7,500,000 acre-feet apportioned to the Lower Basin States by Article III (a), and (2) whether there are excess or surplus system waters, including Article III(b) waters, of which California has a right to no more than one-half. I disagree with the Court's conclusion that § 4 (a) of the Project Act refers only to the water flowing in the mainstream below Lee Ferry. The Project Act speaks clearly, and only, in terms of the waters appor- tioned to the Lower Basin States by Article III (a) of the Compact,, viz. California may take no more than 4,400,000 acre-feet "of the waters apportioned to the lower basin States by paragraph (a) of Article III of the Colorado River compact." Article III (a) of the Compact apportions "from the Colorado River System in perpetuity to the Upper Basin and to the Lower Basin, respectively, the exclusive beneficial consumptive use of 7,500,000 acre-feet of water per annum." The term "Colorado River System" is defined in Article II (a) as in- cluding the entire mainstream and the tributaries.2 There is, moreover, not a word in Senate Report No. 592,70th Cong.,. 1st Sess., reporting the Project Act, that indicates, suggests, or implies that the Colorado River is to be divided and California or any other Lower Basin State restricted to mainstream water. The Report in- deed speaks of "enthroning the Colorado River compact" (id., p. 16), which embraces the entire river system in the United States, not just the mainstream. See Article II(a). Arizona's fears that California would take 5,400,000 acre-feet from the first 7,500,000 acre-feet, if the entire system were used as the source are, I think, unfounded. Out of the first 7,500,000 acre-feet of system water California would be en- titled only to 4,400,000 acre-feet. Out of the balance or 3,100,000 acre- feet, California would be excluded. How much of this 3,100,000 acre-feet should go to Arizona and how much to Nevada, New Mexico, and Utah cannot be determined on this record, the relevant findings not being made in light of the construc- tion which has been given to the Project Act, the Compact, and the Limitation Act. We cannot take as a guide the provisions in the second paragraph of § 4(a) of the Project Act, viz., the 300,000 acre-feet pro- posed for Nevada and the 2,800,000 acre-feet proposed for Arizona, because those provisions come into play only if Arizona,, California, and Nevada enter a, compact, which to date_ they have not done. The division of 3,100,000 acre-feet should, I think, be made among Ari- zona, Nevada, New Mexico, and Utah pursuant to the principles of equitable apportionment. Nebraska v. Wyoming, 325 U.S. 589. 1 The relevant provisions of the Project Act, the California Limitation Act, and the Colorado River Compact are set forth in the Appendix, post, p. 643. 2 See the Appendix, pp. [645-646], for the relevant portions of Article III. |