The Colorado River Compact

L. WARD BANNISTER

The Colorado River Compact in its present stage is a draft-agreement signed by the official representatives of Colorado, Wyoming, Utah, New Mexico, Arizona, Nevada, and California, for a division of the use of the waters of the Colorado river system among these states, they being the states lying within the drainage area of the system. The draft agreement has been ratified by all seven states except Arizona, and ratification by that state is now awaited by the other six states and by Congress, which undoubtedly will ratify, or approve, immediately upon ratification by the states.

PURPOSE

The main purpose of the Compact is a division of the use of the waters of the system. This and the collateral purposes are well expressed in Article I of the draft as follows:

"Article I. The major purposes of this compact 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 of water; to promote interstate comity; to remove causes of present and future controversies; and to secure the expeditious agricultural and industrial development of the Colorado River Basin, the storage of its waters, and the protection of life and property from floods."

THE COLORADO RIVER

To appraise the compact justly requires a knowledge of the physical situation to which it relates and also the consideration of relevant legal principles. The Colorado River is general in its appeal. It attracts the geologist, ethnologist, artist, poet, electrical engineer, irrigation engineer, and the lawyer.

The river rises on the west slope of the Rockies in Colorado and follows a general southwesterly course to the Gulf of California. On its way, it passes from Colorado through southeastern Utah into Arizona, then through northwestern Arizona to a point whence for

†Member of the Denver, Colo., bar; non-resident lecturer in the College of Law, Cornell University, on Western Water Rights.

some distance it forms the boundary line between Arizona and Nevada, then constitutes the boundary line between Arizona and California, then for a short distance the boundary line between Arizona and Mexico, and finally passes through Mexican territory into the Gulf. On its course, the river gathers to itself numerous tributaries, among them the Bear and the Gunnison in Colorado, the Green River which rises in Wyoming and joins the Colorado in Utah, the San Juan which rises in Colorado and in New Mexico, joining the Colorado in Utah, the Virgin in Nevada, and the Little Colorado and the Gila in Arizona. The distance from the Gulf of California to the most remote tributary-tip in Wyoming is close to seventeen hundred miles. The total area drained by the river system is about two hundred and forty-two thousand square miles embracing substantial parts of several states, indeed practically all of Arizona. For hundreds of miles in Utah, Arizona, and Nevada the river has eroded a deep canyon, at points over five thousand feet in depth, and this canyon separates two terminal regions utterly different in climatic character. The upper region belongs to the cool temperate zone, the lower to the warm temperate zone and the tropic.

In the upper region the principal crops are the grains, native grasses, alfalfa, the hardy friuts, and vegetables. In the lower regions we find dates, oranges, grape fruit, cotton, and the early vegetables.

From measurements made over a period of many years the average natural annual flow, that is the average flow when undiminished by withdrawals for irrigation and other purposes, at Yuma, Arizona, not far from the mouth, is fixed at twenty million five hundred thousand acre feet of water. An acre foot of water is a square acre of water one foot deep. To visualize the average annual flow it may be said that if this flow were erected vertically in column form on a base of one square acre we should have a water tower thirty-eight hundred miles high.

Engineers estimate that the average annual quantity of silt carried by the river past Yuma is about eighty-six thousand acre feet. This quantity would make a similar column seventeen miles high.

The lower end of the river is characterized by a deltaic formation. The Gulf of California at one time extended northwest to a point much nearer Los Angeles than the Gulf's present head, including in its bed what is now known as the Imperial Valley and also the Salton Sea. In the course of the centuries the silt carried by the river and deposited in the gulf gradually built a great bar or dyke across the gulf, dividing it into two portions, one being the portion still connected with the Pacific, and the other that of which the Salton Sea was left as

a remnant. The bed of the river at its lower end is higher than the immediately surrounding country including the floor of the Imperial Valley.

Irrigation engineers ascribe to the river system a potential irrigation service for something like six million acres of land, and electrical engineers fix the potential power service at about five million horsepower. It is said that the Boulder Canyon site on the boundary line between Arizona and Nevada is good for a reservoir and electric power plant that would generate six hundred thousand horsepower. This would be twice the electrical output of the Muscle Shoals project. It is contemplated that from the river system as a whole, electric power will be generated for the use of a large part of the factories, mines, farms, municipalities, and railroads of the Southwest.

PROBLEMS RAISED

The varied uses which the citizens of the different states desire to make of the waters of the Colorado River system raise many difficult questions. With all of the states demanding a share in the use of the waters, how is the use to be divided among the different states and their respective peoples? Among the various economic uses to which the water will be put, such as irrigation, power, municipal, industrial, etc., are all kinds of uses to be rated as equally valuable, or is some line of use to be preferred over other lines in the sense that the line of use preferred shall take precedence over the lines of use subordinated and, therefore, not be interfered with by the lines less favored? Since in order to insure the maximum of use from the waters of the system, storage will be necessary on a vast scale, where shall the reservoirs be built and how large shall they be, how shall they be financed, and shall they be built and operated by private capital or by public capital? As between the two, the Federal Government and a State, which is it that has the legal authority to dispose of water rights and to prescribe the rules of law under which they may be obtained and enjoyed? What is the legal effect of the international character of the river upon the relative powers of the Federal and State Governments and upon the division of the use of the water among the states? Whether the Colorado River is a navigable stream is disputed, but if it be navigable, what likewise is the legal effect of its navigable quality upon these same powers and upon a division of the use?

These are all fascinating legal questions. Some of them are not disposed of by the Compact, others are. Some of them are questions

the answer to which can no longer be deferred, and it is these more pressing questions that are dealt with in the Compact.

The urgency of solving some of these questions at the present time, the urgency of the Compact, lies in the fact that the states of Colorado, Utah, Wyoming, and New Mexico, constituting the upper group of states, are not as ready for major development as are the lower group consisting of Arizona, Nevada, and California. At the present time the two groups are using about equal quantities of water from the river system, but the general demand for electric power for use in the lower group has created in that group a strong public opinion in favor of the construction of a large reservoir somewhere on the lower reaches of the river for the purpose of accumulating a large body of water and stabilizing its flow for the generation of electric power. Incidental to such a project would be the protection of the Imperial Valley of California and also of some lowlands in Arizona from the danger of overflow. So, too, incidental to such a project would be the reclamation of additional land areas in Arizona and California. Public opinion has not crystallized as to whether the agency by which this contemplated development should be undertaken would be private capital or public capital, but the development, no matter by what agency carried on, undoubtedly would take place upon such a large scale that there might be claimed in its behalf substantially all of the now unused waters of the river system. Doubtless many of the water users operating under and receiving the benefits of such a project would be claiming in behalf of that project that it carries with it a priority of right to the use of the water necessary therefor as against any and all later developments in the upper states. If this contention should prove to be sound, the upper states would find their future development ended so far as dependent upon the river system. Thus the comparative unreadiness between the two groups of states to undertake further developments of major importance has produced a controversy between the two groups in which the upper states have persistently opposed the construction by the Federal Government of any further reclamation projects and the granting by the Federal Government of any power licenses for the construction of power projects along the lower reaches of the river until there shall have first been negotiated and signed a compact among the seven states whereby the future development of the upper states is assured by a definite reservation of a portion of the now unused waters of the river system in their behalf. Development meanwhile is at a standstill.

LEGAL PRINCIPLES GOVERNING DIVISION OF USE OF WATER AMONG STATES ON AN INTERSTATE STREAM

The question of what principle of law governs the division of use of water from an interstate stream among the states upon such a stream is not regarded as thoroughly settled, and the question of what principle applies to the Colorado River is still more unsettled.

Four contentions have been made in respect to the principle which, generally speaking, should govern on an interstate stream. One of these is to the effect that the state in which an interstate stream originates should be permitted to retain for the use of its people all of the water which arises therein. A second contention is that the state which is lowest on the stream has a right to have all of the water come down to it as it would come by nature, in other words, undiminished by uses in the states above. These two contentions represent state selfishness at its maximum. It is not surprising, therefore, to find that the United States Supreme Court, which by virtue of its jurisdiction over controversies between states1 has authority to formulate and apply a rule for the division of the use of water, has repudiated both of these extreme contentions by its notable decisions in Kansas v. Colorado2 and Wyoming v. Colorado.

A third principle which has been put forward for dividing the use of water among states is that of "equitable division," according to which each state upon an interstate stream is entitled to have what under the circumstances is a fair or equitable portion of the total waters of the stream and to have it without conclusive regard to the relative dates of use as between the two states. This was the principle adopted in Kansas v. Colorado. In that case the contest was between Colorado, which repudiates every trace of the traditional riparian system and is a Simon-pure appropriation-system state on the one hand, and Kansas, which is fundamentally a riparian-system state, and which, although tolerating appropriation water rights, does so on the theory that they are carved out of previously existing riparian rights of the Federal Government, originally owned by the Government prior to statehood. The appropriation system of water rights is characterized by two principal features. The first is that the use of water is not confined to riparian lands, but may be extended to non-riparian lands as well. The second is that those who use water from a stream are entitled in order of the seniority of use; the oldest

1Federal Constitution, Art. III. Sec. 2 (1); Kansas v. Colorado, 206 U. S. 46 (1907). "Kansas v. Colorado, supra, n. I.

"Wyoming v. Colorado, 259 U. S., 419 (1922).