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Show COLORADO RIVER LITIGATION 599 The evidence is clear that the dependable Lower Basin supply does not exceed 8,000,000 acre-feet if the river system is taken as a whole. By Article III(b) of the Compact the Lower Basin States can in- crease their beneficial use by 1,000,000 acre-feet, if additional water is available. By § 4(a) of the Project Act California is entitled to not more than one-half of any excess that is "unapportioned by said compact." The amount apportioned to the Lower Basin States by the Compact is 8,500,000 acre-feet, viz., Article III (a) waters in the amount of 7,500,000 "in perpetuity" plus Article III(b) waters, which are highly contingent. After the Upper Basin is given its 7,500,000 acre-feet, the "unapportioned" excess described m Article III(b) would foe available. As noted, the present permanent supply for the Lower Basin would not exceed 8,000,000 acre-feet from the mainstream and the tributaries. As I read the Compact and the Project Act, Cali- fornia would get out of the 8,000,000 acre-feet 4,400,000 acre-feet plus not more than one-half of Article III (b) waters which, under the fore- going assumption, would amount to one-half of 500,000 acre-feet. If there is a further surplus (either in the sense of Article III(b) or in the more remote sense in which § 4(a) of the Project Act uses that word) s the division between the Lower Basin States should follow the principles of equitable apportionment which we applied in Nebraskav. Wyoming, 325 U.S. 589. If § 4 (a) is to be read as referring to system waters, California's total rights in available Lower Basin waters would amount to not more than 4,650,000 acre-feet annually (4,400,000 plus 250,000). She would also have a right, albeit highly contingent, to any additional Article III (b) waters that become avail- able to the Lower Basin and to such share of the waters in both Basins over 16,000,000 acre-feet (7,500,000 to Upper Basin, 7,500,000 to Lower Basin under Article III (a), plus 1,000,000 to Lower Basin under Article III(b)) as is equitable. Nebraska v. Wyoming, supra. Under the Court's reading of § 4(a), however, a far different divi- sion is made. The Court says that the language of §4 (a) limiting California to 4,400,000 acre-feet "of the waters apportioned to the Lower Basin States by paragraph (a) of Article III of the Colorado Kiver compact" (7,500,000 acre-feet per annum) is just a "short- hand" way of saying that California is limited to 4,400,000 acre- *It is said that the §4 (a) language referring to surplus or excess waters, one-half of which is to go to California, the other to Arizona, is meaningless if read literally. That turns on the meaning of the words "excess or surplus waters unapportioned" by the Compact. They mean, it is said, all waters unapportioned by Article III (a) and (b), because Article III(c) defines or speaks of surplus in such manner as to indicate that sur- plus is only that water over and above Article III (a) and (b) water. This is true, at least for the limited purpose of Article III(c). From that premise it is reasoned that § 4 (a), literally construed, would allow Arizona and California to split equally all waters over 16,000,000 acre-feet, that is after 7,500,000 acre-feet went to each of the Basins, and after the Lower Basin received an additional 1,000,000 acre-feet under the provisions of Article IIKb). If that is true and if California and Arizona were allowed to divide up the rest, the Upper Basin States would forever be limited to their initial 7,500,000 acre- feet, something not contemplated by Article III(f), which specifically provides for ap- portionment of waters in excess of 16,000,000 between the Upper and Lower Basins. Thus, It is argued that the words "excess or surplus waters" as used in § 4 (a) are meaningless and in hopeless conflict with the terms of the Compact if read literally. This interpretation is ill-founded. The first paragraph of § 4(a) contains only a limita- tion ; it apportions no water. The tri-state compact authorized by the second paragraph of § 4 (a) has never been made. But, even if it had been made, it could affect only the rights of its signatories vis-d-vis each other. For §4 (a) explicitly provides "that all of the provisions of said tri-State agreement shall be subject in all particulars to the provisions of the Colorado River compact." The words "excess or surplus waters unapportioned by said compact" mean, I think, Article III(b) waters plus all waters in the entire System in excess of 16,000,000 acre- feet. Not only does this interpretation allow the Project Act and the Colorado River Compact to be construed as a harmonious whole, but it is also compelled by the legisla- tive history. See 70 Cong. Rec. 459-460. |