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The Colorado River Compact (1922)
The Colorado River Compact is the foundation centerpiece of the Law of
the River. A summary of the Compact is provided below, followed by a
description of the events leading to its negotiation and its major provisions.
Summary of the Compact:
The Colorado River Compact divides the Colorado River into Upper and
Lower Basins with the division being at Lee Ferry on the Colorado River
(one mile below the Paria River in Arizona).
- The Lower Basin states are Arizona, California, and Nevada, with
small portions of New Mexico and Utah that are tributary to the Colorado
River below Lee Ferry.
- The Upper Basin states are Colorado, New Mexico, Utah, and Wyoming,
with a small portion of Arizona tributary to the Colorado River above Lee Ferry.
Article III of the Compact apportions the waters of the Colorado River
to the Upper and Lower Basins as follows:
- The Compact apportions the right to exclusive beneficial consumptive
use of 7.5 million acre-feet of water from the "Colorado River System"
in perpetuity to the Upper Basin and the Lower Basin.
- The Compact allows an additional 1.0 million acre-feet per year of
increased beneficial consumptive use to the Lower Basin.
- It provides water for Mexico pursuant to treaty. Water must first
come from any surplus over the waters allocated to the states in Article III(a)
and (b). If that surplus is insufficient, then the burden of that deficiency
shall be shared equally by the Upper and Lower Basins.
- The Compact provides that the Upper Basin states will not cause the
flow of the river at Lee Ferry, Arizona to be depleted below an aggregate of
75 million acre-feet for any period of ten consecutive years beginning with
the ratification of the Compact.
- It provides that the Upper Basin states will not withhold water and
the states of the Lower Basin shall not require delivery of water which cannot
reasonably be applied to domestic and agricultural uses.
Background of the Compact:
The rapidly expanding use of Colorado River water in California was viewed with
increasing alarm by officials in the Upper Basin States. As a consequence of their
concern, the League of the Southwest was formed in 1919 to promote the
orderly development and equitable division of the waters of the Colorado River.
Congress approved the Kincaid Act in 1920 (41 Stat. 600) directing the Secretary
of the Interior to make a full and comprehensive study and to report on the possible
diversion and use of the waters of the Colorado River.
During the period when the Secretary’s studies were being conducted,
negotiations were undertaken by the seven Basin States for an interstate agreement
on the waters of the River. While it was recognized that storage on the Colorado
River was essential not only for the flood protection and development for the
lower basin, the Upper Basin States faced the possibility that water conserved
by storage would be put to use in the Lower Basin more rapidly than the
Upper Basin could use its share of the normal flow and thus form the basis for
Lower Basin claims of appropriative rights to the water, thereby reestablishing
the condition they sought to avoid.
In general, two methods were open for the protection of the upper basin: a
Supreme Court suit predicated on the doctrine of equitable apportionment, as
distinguished from the doctrine of priority of appropriation irrespective of
State lines, or, in the alternative, an interstate compact cutting across
the doctrine of appropriation and reserving water against its operation.
Interstate compacts had been previously for the settlement of controversies
involving boundaries, fisheries, criminal jurisdiction, etc., but had never been
used for the allocation for waters of an interstate stream.
As a result of negotiations among the seven Basin States, it was agreed
that an interstate compact would establish an equitable apportionment of the
waters and protect the Upper Basin States. Each of the seven Basin States
adopted the authorizing legislation in 1921 and Congress consented to the
negotiations by legislation enacted on August 19, 1921 (42 Stat. 171).
The Colorado River Commission convened in January 1922. Herbert Hoover,
then Secretary of Commerce, was elected Chairman. The Upper Basin’s
fears and the wisdom of the decision to attempt an interstate agreement was
demonstrated when the United States Supreme Court on June 5, 1922, in
Wyoming v. Colorado , 259 U.S. 419, upheld the doctrine of
priority of appropriations regardless of state lines.
After 27 meetings, a final agreement on the Compact was signed in Santa
Fe, New Mexico, on November 24, 1922. Although the States had hoped to
allocate the Colorado River waters among each of the seven Basin States,
such agreement was not possible.
Major Provisions:
The Colorado River Compact, an important, historic document, had the
following major provisions:
- Article I states the purposes of the Compact.
- Article II(a) defines the “Colorado River System” as “that portion
of the Colorado River and its tributaries within the United States of America.”
- Article II(b) defines the “Colorado River Basin” as “all of 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.”
- Article II(c) defines the term “States of the Upper Division” as
“the States of Colorado, New Mexico, Utah and Wyoming.”
- Article II(d) defines the term “States of the Lower Division” as
“the States of Arizona, California and Nevada.”
- Article II(e) defines “Lee Ferry” as “a point in the mainstream of
the Colorado River one mile below the mouth of the Paria River.”
- Articles II(f) and II(g) define the terms “Upper Basin” and “Lower
Basin,” thus dividing the Colorado River Basin into these two basins.
- Article II(h) defines “domestic use” as including “the use of water
for household, stock, municipal, mining, milling, industrial and other like purposes, but
shall exclude the generation of electrical power.”
- Article III(a) apportions from the Colorado River System, in perpetuity,
the exclusive beneficial consumptive use of 7.5 million acre-feet per year (maf/yr)
to each of the two Basins for beneficial consumptive use.
- Article III(b) provides that, in addition to the III(a) apportionment, the
Lower Basin was given the right to increase its beneficial consumptive use
by 1 maf/yr.
- Article III(c) provides that if (as has proven to be the case) the
United States shall recognize the rights of Mexico to the use of any waters
of the Colorado River System, such waters shall first be supplied from the
waters which are surplus over and above the aggregate of the quantities specified
in paragraphs III(a) and III(b). It also provided that if such surplus shall prove
insufficient for this purpose, the Mexican deficiency is to be borne equally by
the Upper and Lower Basins, and whenever necessary the States of the Upper Division
shall deliver at Lee Ferry water to supply one-half the deficiency so recognized
in addition to that provided by paragraph (d).
- Article III(d) provides that the Upper Division States “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 …”
- Article III(e) provides that the Upper Division States shall not withhold
water, and the Lower Division States shall not require the delivery of water,
which cannot reasonably be applied to domestic and agricultural use.
- Article IV(a) provides that since the Colorado River had ceased to
be navigable the use of Colorado River water for navigation shall be
subservient to the uses of such water for domestic, agricultural and power
purposes.
- Article IV(b) provides that the impoundment and use of waters for
the generation of electrical power shall be subservient to the use and
consumption of such water for agricultural and domestic purposes.
- Article VII provides that nothing in the Compact shall be construed
as affecting the obligations of the United States to Indian Tribes.
- Article VIII provides that present perfected rights to the
beneficial use of the waters of the Colorado River System are unimpaired
by this compact.
- Article XI provides that the compact shall become binding and
obligatory when it shall have been approved by the legislatures of each of
the signatory states and by the Congress of the United States.
Although the River had produced an average flow for the two decades
preceding 1922 that would have accommodated 16 maf/yr in beneficial
consumptive use annually from the waters of the Colorado River System for
the two Basins, the Upper Basin (by virtue of Article III(d) of the
Compact) assumed the burden of drier cycles occurring thereafter. Hence the
Lower Basin has received a guaranteed 10-year (not annual) minimum flow of
75 maf at the Lee Ferry compact point. The Upper Basin became a guarantor
in the sense that its depletions may not reduce the 10-year aggregate flow
below the 75 maf at the Lee Ferry compact point.
The Compact was signed by each of the Seven Basin States. Six of the
seven States ratified the Compact in 1923 but Arizona did not ratify it until
1944, 21 years later. In 1925, four ratifying States modified the requirement
for seven State approval and ratified the Compact which was to become effective
upon approval of at least six States and the consent of the United States.
Utah and California took the required action in 1929. The United States
approval of the Compact was contained in Section 13(a) of the Boulder Canyon
Project Act of 1928.
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