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Show COLORADO RIVER LITIGATION 601 The overall accounting of the waters is provided for in Article III of the Compact. By Article III (a) "the exclusive beneficial con- sumptive use of 7,500,000 acre-feet of water per annum" is appor- tioned "in perpetuity to the Upper Basin and to the Lower Basin, respectively," meaning that each basin gets 7,500,000 acre-feet. By Article Ill('b) the Lower Basin is given the right to increase its ben- eficial consumptive use by 1,000,000 acre-feet per annum. By Article III(c) any deficiency owed Mexico "shall be equally borne by the Upper Basin and the Lower Basin." The Lower Basin by definition includes California. Article II (g). Tributary uses in Arizona dimin- ish California's right under Article III(c) to require the Upper Basin States to supply water to satisfy Mexico. California is to be charged with water from the Gila when the accounting is made with Mexico. That is, California is presumed to enjoy the waters from the Lower Basin tributaries for purposes of Article HI(c) of the Compact. It is manifestly unfair to charge her with those waters under Article III(c) of the Compact and to say that she is entitled to none of them in computing the 4,400,000 acre-feet which the Limitation Act and the Project Act give her out of the waters of Article III (a) of the Compact. Section 1 of the Project Act authorizes the Secretary of the In- terior to construct and operate the Boulder Dam "subject to the terms of the Colorado Eiver compact." By §4 (a) the Project Act is not to be operative unless and until the seven States "shall have ratified the Colorado River compact"; and if they do not, then "the provisions of the first paragraph of Article XI of said compact" must be waived. Moreover, the 4,400,000 acre-feet allotted to Cali- fornia by §4(a) are described in terms "of the waters apportioned to the lower basin States by paragraph (a) of Article III of the Colorado River compact." Section 4(a) describes the "excess or sur- plus" waters in terms of those "unapportioned by said compact"; and it makes all "uses always to be subject to the terms of said com- pact" The compact is, indeed, the underpinning of the Project Act. The Compact apportions the waters "from the Colorado River Sys- tem" which by definition includes the mainstream and its tributaries in the United States. And California's Limitation Act, containing the precise language of the allocation of waters in ,§ 4(a) of the Project Act, describes the 4,400,000 acre-feet in terms "of the waters appor- tioned to the lower basin states by paragraph 'a' of article three of the said Colorado River compact." 6 So it seems that the Compact is the mainspring from which all rights flow. The 7,500,000 acre-feet of water apportioned by Article III (a) of the Compact "from the Colorado River System" to the Lower Basin is the supply out of which California's 4,400,000 acre- feet is to be taken. 8 It was indicated in Arizona v. California, 292 U.S. 341, 357, that the Limitation Act incorporates the Compact: "It may be true that the Bould«r Canyon Project Act leaves in doubt the apportion- ment among the states of the lower basin of the waters to which the lower basin is entitled under Article III(b). But the Act does not purport to apportion among the states of the lower basin the waters to which the lower basin is entitled under the Compact. The Act merely places limits on California's use of waters under Article III (a) and of surplus waters ; and it is 'such' uses which are 'subject to the terms of said compact.' " 94-497-69------39 |
