Wyoming v. Colorado. In general, it sustained the doctrine of priority of appropriations regardless of State lines, saying (259 U. S. 419, 468):

In neither state was the right to appropriate water from this interstate stream denied. On the contrary, it was permitted and recognized in both. The rule was the same on both sides of the line. Some of the appropriations were made as much as fifty years ago and many as much as twenty-five. In the circumstances we have stated, why should not appropriations from this stream be respected, as between the two states, according to their several priorities, as would be done if the stream lay wholly within either state? By what principle of right or equity may either state proceed in disregard of prior appropriations in the other?

Delph E. Carpenter, Colorado River Commissioner for the State of Colorado, summarized the situation produced by that decision as follows: 15

The upper state has but one alternative, that of using every means to retard development in the lower state until the uses within the upper state have reached their maximum. The states may avoid this unfortunate situation by determining their respective rights by interstate compact before further development in either state, thus permitting freedom of development in the lower state without injury to future growth in the upper.

The final negotiation of the compact took place in the atmosphere produced by that decision.

(5) The Hoover compromise: Division of the basin.-During the public hearings and business meetings of the Commission, it became apparent that any attempt to allocate waters individually to the several States would be a protracted and probably unsuccessful undertaking. Participants have stated that the negotiations would have broken up but for Mr. Hoover's proposal: that the Commission limit its efforts to a division of water between the upper basin and the lower basin, leaving to each basin the future internal allocation of its share.

This proposal was later summarized by Mr. Hoover, speaking before the Commonwealth Club of San Francisco, December 1, 1922, immediately after execution of the compact, as follows:16

The major legal dispute lies between the upper and lower basin. Indeed all the problems very naturally divided themselves into two parts-that is into the two basins of the river separated by the canyon. The character of agriculture, industry and the engineering problems in the two basins are of widely different nature, and it became the natural and logical thing to divide the Colorado River into two parts at the canyon, and to assign to each part a certain portion of the flow of the river permanently, and to develop the two basins as two separate principalities.

15 Appendix 210 herein.

16 Transactions of the Commonwealth Club of California, vol. 17, No. 11, p. 451.

(6) Final 20 meetings of the Commission and execution of the compact. The Commission held its eighth business meeting at Phoenix, March 15, and its ninth at Denver, April 1. It convened at Bishop's Lodge, Santa Fe, N. Mex., November 9, 1922, for its tenth meeting, and remained in session there until completion of its work, at the twenty-seventh meeting, on November 24, 1922.

The task of the Commission was complicated by the fact that in the elections of November 1922 new governors had been elected in several of the basin States. The new governors were invited to attend the meeting of the Commission, and several of them did. The prestige of the Commissioners appointed by their predecessors was such that in every case the former Commissioners remained in office to the conclusion of the compact negotiations.

The compact, which is summarized in the pages following, was signed at Santa Fe, N. Mex., November 24, 1922, by the same Commissioners who had initiated negotiations in January of that year in Washington.

C. Summary of the Compact

The Colorado River compact (the text of which is printed as appendix 203) is a document of approximately 1,200 words, divided into 11 articles, dealing with the following general subjects (although the titles used here do not appear as captions of the articles designated): Article I. Purposes

II. Definitions

III. Allocations

IV. Priority of uses

V. Administration

VI. Arbitration

VII. Indian Tribes

VIII. Present Perfected Rights

IX. Litigation
X. Termination

XI. Ratification

A summary of the most important of these articles follows:

(1) Article I: Purposes.-The purposes stated are to provide for the equitable division and apportionment of the use of the waters of the Colorado River system; to establish the relative importance of different beneficial uses; to promote interstate comity; to remove causes of present and future controversies and secure the expeditious agricultural and industrial development of the basin; to secure the storage of its waters and the protection of life and property from floods. To those ends the basin is divided into two basins and an apportionment of the use of part of the water of the system is made to each of them with a provision that further equitable apportionment may be made.

(2) Article II: Definitions.-Article II (a) defines the Colorado River system as "that portion of the Colorado River and its tributaries within the United States of America." This definition includes the Gila River, a matter of some controversy, as it later developed.17

Article II (b) defines the Colorado River Basin to mean all the drainage area of the Colorado River system "and all other territory within the United States of America to which the waters of the Colorado River System shall be beneficially applied." By this definition the basin includes the Coastal Plain of southern California, the Salton Sink drainage area in California, and the areas to which transmountain diversions may be made in other States.18

Article II (c) defines the term "States of the Upper Division" to mean the States of Colorado, New Mexico, Utah, and Wyoming. Article II (d) defines the term "States of the Lower Division" to mean the States of Arizona, California, and Nevada.

Article II (e) defines "Lee Ferry" as meaning a point in the main stream of the Colorado River one mile below the mouth of the Paria River.

Article II (f) defines the term "Upper Basin" to mean those parts of the States of Arizona, Colorado, New Mexico, Utah, and Wyoming "within and from which waters naturally drain into the Colorado River System above Lee Ferry" as well as parts of those States without the drainage area of the system "which are now or shall hereafter be beneficially served by waters diverted from the system above Lee Ferry." This definition of "Upper Basin" is broader than the definition of the term "States of the Upper Division."

Article II (g) defines the "Lower Basin" to mean those parts of the States of Arizona, California, Nevada, New Mexico, and Utah within and from which waters naturally drain into the Colorado River System below Lee Ferry and also parts of those States located without the drainage area "which are or shall hereafter be beneficially served by waters diverted from the system below Lee Ferry." The term "Lower Basin” as thus defined is broader than the term "States of the Lower Division."

17 See Chapter XIII, Litigation. See also reservations to the compact proposed by the House of the Arizona Legislature, ch. III B, infra.

18 At the time of the negotiation of the Colorado River Compact, neither the transmountain diversion to the Coastal Plain of California, nor the large diversions into eastern Colorado, now under discussion, had been considered. See comment by Mr. Hoover (ch. XIV, infra, S. Doc. 32, 79th Cong., 1st sess., 1945), and comment by A. P. Davis, Commissioner of Reclamation, appendix 206, infra. Cf. comments in report of the American Section of the International Water Commission (H. Doc. 359, 71st Cong., 2d sess., p. 18). For a tabulation of demands anticipated in 1922, including transmountain diversions, as considered by the negotiators of the compact, see S. Doc. 142 (67th Cong., 2d sess.), "Problems of Imperial Valley and Vicinity” (appendix B, p. 31, et seq.).

Article II (h) defines domestic uses to exclude the generation of electric power.

(3) Article 111: Allocations.-Article III of the compact, avoiding any attempt at individual allocation to the seven States, effected an allocation as between the upper and lower basins, leaving to future adjustment the division of the use of water within each basin.

Article III (a) 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

to include

all water necessary for the supply of any rights which may now exist.

Article III (b) provides that

In addition to the apportionment in paragraph (a), the Lower Basin is hereby given the right to increase its beneficial consumptive use of such waters by 1,000,000 acre-feet per annum.19

Article III (c) provides in part against the contingency of a treaty between the United States and Mexico, stating that if, as a matter of

19 See Chapter XIII, Litigation. The relation between the waters referred to in art. III (a) and art. III (b) was argued as follows by Arizona in Arizona v. California, et al. (283 U. S. 423) (brief at p. 33):

Under the Compact, then, the only water of which the right to exclusive beneficial use in perpetuity may be acquired in the Lower Basin is the water apportioned to that Basin. Such apportionment is limited to 7,500,000 acre-feet of water per annum by Article III (a). The Colorado brief, page 40, contends that paragraph (b) of Article III operates to increase this apportionment to 8,500,000 for the Lower Basin. This, we submit, is not the case. If it had been intended to apportion the larger amount, the Compact could easily have said so. The difference in language between paragraphs (a) and (b) is plain, and the difference in meaning is clear. Paragraph (b) does not apportion in perpetuity, as does paragraph (a), any beneficial use of water. It is very careful not to do this. It is to be read with paragraph (c) and relates solely to the method of sharing between the basins any future Mexican burden which this Government might recognize. This burden is to be satisfied first out of "surplus" waters, and surplus waters are defined, not as surplus over quantities "apportioned," but as surplus over quantities "specified in paragraphs (a) and (b)." Any deficiency remaining is to be borne equally by the two basins. Thus the Lower Basin, which without paragraph (b) might use water in excess of its apportionment without acquiring any exclusive right in perpetuity thereto, is enabled to retain such uses to the extent of 1,000,000 acre-feet per annum against the first incidence of the Mexican burden. Thereafter it is entitled to require the Upper Basin to share from its apportionment equally in the satisfaction of any deficiency. In other words, all that paragraphs (b) and (c) accomplish is to require the Upper Basin to reduce its apportionment in favor of Mexico before the Lower Basin is required to do so, the Lower Basin being entitled to contribute first, to the extent of 1,000,000 acrefeet, water which it may have used but to which it has no exclusive right in perpetuity-that is, water not apportioned to it. The water apportioned is that to which exclusive beneficial use in perpetuity is given in paragraph (a), less any deductions which may have to be recognized as provided in paragraphs (b) and (c).

Compare Report of Delph Carpenter, Colorado River Commissioner, to the Legislature of Colorado, (appendix 210 herein).

international comity the United States shall hereafter recognize in Mexico any right to the use of waters of the Colorado River systemsuch waters shall be supplied first from the waters which are surplus over and above the aggregate of the quantities specified in paragraphs (a) and (b); and if such surplus shall prove insufficient for this purpose, then the burden of such deficiency shall be equally borne by the Upper Basin and the Lower Basin, and whenever necessary the States of the Upper Division shall deliver at Lee Ferry water to supply one-half of the deficiency so recognized in addition to that provided in paragraph (d).20

Article III (d) stipulates that

The States of the Upper Division will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre-feet for any period of ten consecutive years reckoned in continuing progressive series beginning with the first day of October next succeeding the ratification of this compact.21

Article III (e) provides that the States of the upper division shall not withhold water, and the States of the lower division shall not require the delivery of water, which cannot be reasonably applied to domestic and agricultural uses.

20 Cf. sec. 20 of the Boulder Canyon Project Act (appendix 401 herein).

21 One of the frequently quoted analyses of this provision of the compact is that in the brief of Arizona in Arizona v. California, et al. (283 U. S. 423), by Messrs. Acheson, Peterson and Matthews (p. 32):

The provision in paragraph (d) of Article III that the Upper Basin States will not cause the flow of the river to be depleted below 75,000,000 acre-feet over ten-year periods, has, as the Colorado brief, page 41, correctly states, no bearing on the amount of the apportionment to the Lower Basin. This 75,000,000 acrefeet is not apportioned to the Lower Basin. It may not be appropriated in the Lower Basin. Only so much of it may be appropriated as together with existing and future appropriations of water in or from tributaries entering the river below Lee Ferry will total 7,500,000 acre-feet per year. The 75,000,000 acre-feet includes all surplus waters which under paragraph (c) must first bear any Mexican burden, which may not be appropriated, and which are subject to apportionment after 1963. It is fundamental to an understanding of the Compact that the annual beneficial consumptive use in perpetuity of 7,500,000 acre-feet of water apportioned by it to the Lower Basin includes all beneficial consumptive use in perpetuity which may be made from the whole river system, and is not merely an apportionment of such uses in main stream water flowing at Lee Ferry. The agreement not to deplete the flow at Lee Ferry below the specified amount does not mean, and cannot under the plain words of the Compact be construed to mean, that the guaranteed flow is apportioned to the Lower Basin or may be appropriated there. As to this, at least, there can be no shadow of doubt.

But for the contrary view, see the brief of Mr. Carson of Arizona (p. 10) in Arizona v. California, et al. (292 U. S. 341):

The Compact, therefore, in Article III (a) apportions 7,500,000 acre-feet per annum to the upper basin and 7,500,000 acre-feet per annum to the lower basin in perpetuity and in order to assure delivery to the lower basin of the 7,500,000 acre-feet per annum, apportioned to it, provided further in Article III (d) as follows:

"(d) The States of the upper division will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre-feet for any period of 10 consecutive years reckoned in continuing progressive series beginning with the first day of October next succeeding the ratification of this compact."

It is very apparent that the foregoing provision was arrived at by multiplying the 7,500,000 acre-feet per annum apportioned to the lower basin, by Article III (a), by ten, thus dividing between the upper and lower basins the benefit of flood waters.