(c) Obviously, the use of the water for irrigation in the upper basin must in some degree diminish the volume of power in the lower basin, even though the lower river were entirely regulated to secure an even flow of the water. But it can not be pretended that the upper basin is to be denied the right to the use of the water for agricultural purposes because of power demands in the lower basin. Such a pretension would not be supported in any of the courts, and if set up in the lower basin would mean that the basin will not be developed so long as the upper States can exert any legislative influence whatever. As a matter of fact, the power possibilities of the river are in no way diminished by the compact, unless it is to be assumed that there is not to be an equitable division of water. (d) The compact provides that no water is to be withheld above that can not be used for purposes of agriculture. The lower basin will therefore receive the entire flow of the river, less only the amount consumptively used in the upper States for agricultural purposes. (e) The contention that the Colorado River is to continue to flow undiminished in volume across the northern boundary line of Arizona is a contention that the upper States shall have no rights to irrigation. It is a direct negation of both equity and human rights. Question 21. Paragraph (c) of Article IV states that that article shall not interfere with the control by any State over the appropriation, use, and distribution of water within its own boundaries. Does this imply that the remainder of the compact may interfere with such intrastate control? This article seems the only one of the compact which might affect the relations of citizens of one State with each other, and it was therefore considered advisable to add the clause to which your question refers. I do not believe, however, that its insertion in this article would, by implication or otherwise, preclude the complete control by each State of its own internal affairs. Question 22. Does the Colorado River compact apportion any water to the State of Arizona? No, nor to any other State individually. The apportionment is to the groups. Question 23. In case of disagreements between the States of Arizona California, or Nevada as to a division among them of the waters of the Colorado River system apportioned by the compact to the lower basin, what procedure will be followed and what rules will govern the settlement of such differences? This situation would be covered by Article VI. If its provisions are not sufficient or not satisfactory, then the dispute would be settled in the same way as other interstate conflicts now are, either by negotiation or agreement or by litigation. Question 24. What was the necessity for Article VII relating to the obligations of the United States to Indian tribes? This article was perhaps unnecessary. It is merely a declaration that the States, in entering into the agreement, disclaim any intention of affecting the performance of any obligations owing by the United States to Indians. It is presumed that the States have no power to disturb these relations, and it was thought wise to declare that no such result was intended. Question 25. Article VIII is somewhat confusing to me and I would like to have your interpretation of its meaning. Why is the term “storage capacity" used? Does the capacity of a reservoir to hold water necessarily mean that it will be filled? If this "storage capacity" is destroyed by the reservoir filling with silt, are all rights to the use of water in the lower basin likewise destroyed? Why was so small a figure as 5,000,000 acre-feet agreed upon as the measure of this "capacity"? (a) The first sentence of this paragraph is a recognition of the validity of present perfected rights to the use of waters and is inserted to obviate any fears on the part of present users that their rights might be impaired by the compact. (b) The second sentence covers the situation now existing on the lower river. It is claimed that the entire low-water flow of the river has now been appropriated by users in California and Arizona, that rights to its continued and unimpaired flow have vested, and that any interference with these rights by attempted appropriation in the upper States could be prevented by appropriate legal proceedings. If such rights do exist, under the provisions of this paragraph they continue unimpaired until the use of water by direct diversion is substituted by its use through storage, at which time the enforcement of any rights to low-water flow for direct diversion obviously becomes unnecessary. When adequate storage has been provided, disputes over low-water flow necessarily cease. Five million acre-feet of storage is ample to provide water for all existing appropriations in the lower basin, and since it was intended only to meet the situation there, it was agreed to. It is in no sense a limitation upon the size of the works to be built nor even an expression of opinion of the capacity to be adopted. There can be no reasonable doubt in the mind of anyone as to the supply of water for a reservoir of this capacity. Given the capacity, the filling of the reservoir will result as a matter of course and physical necessity. The rights to the use of water in the lower basin are in no way dependent upon the construction of this or any other storage. The clause in question affects only rights to the direct diversion of lowwater flow. The apportionment of water between the basins and the guaranty of quantity by the upper States have no relation to this situation, and whether storage is or is not provided, whether or not reservoirs fill with silt, the apportionment and mutual obligations as to division of water remain unaffected and unimpaired. Question 26. All of these questions have been asked primarily with a view to obtaining first-hand information for the benefit of the legislature of the State of Arizona, which now has the Colorado River compact under consideration. Any further observations that you may care to make will, therefore, be appreciated. It seems to me a primary fact that the legislative action necessary for appropriations from Congress can not be secured nor construction work established at any point unless an equitable division of the waters of the Colorado River is first accomplished. There are only two methods of doing this; one is by compact and the other is by litigation. If this compact is not ratified it is necessary to start the process all over again, and I can see little hope of any more constructive basis of handling the problem than this compact already embraces. The minor objections to the compact are generally based on exploitation of theoretical figures, without a full appreciation of the physical facts that govern the flow of the Colorado River. I have found that careful consideration of these physical surroundings of the river dissipate fear whenever they are carefully inquired into. It is to be remembered also that until the dams are constructed the present flood menace will continue to threaten the Yuma project, the Imperial Valley, and other Arizona and California territory adjacent to the river on its lower reaches. [APPENDIX 20] THE BOULDER CANYON PROJECT ACT THE ACT OF DECEMBER 21, 1928 (45 STAT. 1057) WITH ANNOTATIONS SHOWING AMENDMENTS 405 |