Page 30

30 RELEASE OF COLORADO RIVER WATER in alternate' 5. It would be most dangerous if the United States committed itself at this time to these principles without having all the facts upon which to base a decision. At this time we cannot determine if the principles of alternate 5 would be acceptable to or be implemented by the Congress. LEGAL RAMIFICATIONS PRESENTED BY PROPOSED ALTERNATE 5 Without deseribing in detail the physical facilities which would be constructed under alternate 5, it contemplates removing each year at the expense of the United States from the underground, 220,000 acre-feet of water over and above the amount which would percolate into the underground from regular irrigation cropping. This 220,000 acre-feet of water would be conveyed in a channel separate from the Colorado River, allowed to bypass Morelos Dam, and not be charged to Mexico pursuant to the treaty. This procedure would raise legal questions in the international and domestic field. Internationally, there would be involved precedentwise, a departure from the clear meaning of the treaty as ratified by the U.S. Senate. At least 220,000 acre-feet of water per year would pass the international boundary into Mexico and would not be a credit to the obligation of the United States under the treaty. There would have to be clear and uncontrovertible understandings and reservations with Mexico before any announcement or agreement as to the principles involved in alternate 5 or any other like proposal. Domestically, most serious legal problems are involved. There is expected an early decision by the U.S. Supreme Court in a case of 10 years duration involving the Colorado River water entitlement of four of the seven States. The United States is a party to that litigation. A proposed decree was recommended to the Supreme Court by a special master. If his recommendation is accepted, a serious question is raised. Under his proposal each State is given the "consumptive use" of a proportionate share of the water available. He then defines the measure of consumptive use as follows (p. 345 of special master's report). "I. For purposes of this decree: "(A) 'Consumptive use' means diversions from the stream less such return flow thereto as is available for consumptive use in the United States or in satisfaction of the Mexican Treaty obligations;". [Emphasis supplied. In implementing a proposal such as alternate 5 the question then becomes: May the United States, not as a matter of treaty obligation but upon international comity, remove water from an area of a State, discharge it down the river but not charge it to Mexico's treaty share, without thereby reducing that State's share of water for "consumptive use" as defined by the decree which has been recommended to the Supreme Court? Answers to these and other problems must be obtained and proper protection given to these States' precious water supply before any statement is made or agreement given by the United States. These problems are beyond the scope of the assignment given the American panel of consultants and must be resolved by qualified representatives of the affected irrigation project, the proper authorities of the seven basin States and the United States. They must be resolved before any report of the technical panel is accepted by the United States as the technical principles of alternate 5 are inseparable from the legal problems outlined herein. CONCLUSION I am willing to sponsor in the Congress a request for sufficient funds for the Bureau of Reclamation to perform an appropriate engineering investigation to obtain the necessary factual data, to evaluate the suggested alternate 5 and other proposals, and to recommend for the consideration of the Congress such construction as would be compatible with the treaty provisions and of assistance to Mexico. During this same period I would expect Mexico to begin concurrently the construction of a much needed drainage system and acreage reduction in the Mexicali Valley. The time provided by the temporary relief given during the winter of 1962-63, should be adequate to develop and implement a sound plan and construction program, and resolve the most important legal problems concerning the water rights of the seven States.Epson Perfection 4870 Photo, 400 dpi, 24 bit, 6,584,832 byte