Page 6

6 CALIFORNIA COMMENTS controversy by providing water for all economically justified demands within the Region. The Supreme Court of the United States concluded, in Arizona v. California, 373 U. S. 546 (1963), that the Congress, in authorizing the Boulder Canyon Project, had vested in the Secretary of the Interior authority to apportion the water of the Lower Colorado River in the event that the annual supply is less than 7.5 million acre-feet. By making additional water available to the Region, the Plan as proposed might forever obviate the need, from a water supply standpoint, for the Secretary of the Interior to exercise this authority. Nevertheless, from a financial standpoint, the proposed program is inadequate because the Secretary would still have to define the relative rights of the three Lower Basin States in the event of shortage on the main stream of the Colorado River, if he were to allocate properly the costs of the more expensive imported supplies. Certainly the era of conflict over rights in the Lower Colorado River will persist, if the Secretary of the Interior is not relieved of the necessity of exercising his responsibility to apportion shortages of supply of the Lower Colorado River for either reason. The Secretary's proposed program would only shift the conflict from water supply to water project financing. Hence, it is our recommendation that the Plan be modified to provide for inclusion of a guarantee to the states of Arizona, Nevada, and California, that a basic supply which permits a beneficial consumptive use of 7.5 million acre-feet per annum will be maintained in the Region and will be available to the three states either in the Colorado River or from other sources at costs not in excess of what the costs would have been from the Colorado River. The 7.5 million acre-feet available to the Region would be divided among the states, in accordance with the opinion of the Court in Arizona v. California, supra, as follows: California, 4.4 million acre-feet; Arizona, 2.8 million acre-feet; and Nevada 0.3 million acre-feet. Should any state, in the interest of development of the optimum regional program reduce its use from the Colorado in order to permit another state to use the Colorado, an equivalent substitute supply must be made available to the state relinquishing its use of the Colorado. The cost of the substitute supply to the relinquishing state must not exceed the cost to it of its Colorado River supply. The substitute supply, must, of course, not only be equal to the Colorado River relinquishment in quantity, but must also be at least equal in quality and dependability. A portion of the Development Fund must be dedicated to guarantee the continuous provision of a basic supply of 7.5 million acre-feet per year to be divided among the three Lower Basin States. The guarantee we require does not replace the supplies California has lost above the basic 4.4 million acre-feet. California is now using about 5.1 million acre-feet per year of Colorado River water, and by this guarantee we recognize that California may eventually be required to reduce its uses from the Colorado to 4.4 million acre-feet, in strict accordance with the California Limitation Act. We propose the guarantee as an instrument to insure the states of the Lower Colorado River Basin enjoyment of the amount of water to which the Court says each is entitled. Without this kind of a guarantee all Lower Basin States face an eventual physical shortage below their theoretical entitlements if one postulates the adoption of the Special Master's formula of apportioning shortages. 3. Guarantee of Protection for Areas of Origin. It is proposed in the Report that areas of present surplus, the so-called "areas of origin" within the states, and the states of origin themselves, be afforded the protection of legislative policies analogous to those recently adopted by the Congress for the New Melones Project in California, authorized by the Flood Control Act of 1962, 76 Stat. 1173. 1 The Plan would provide, then, that exportations of water from areas of present surplus to areas of deficiency would be subordinate to all existing and anticipated future needs in the areas and states of origin. California must reject the New Melones provisions as inadequate. California's goal is twofold: (1) exports from the areas and states of origin must not deprive either of the legal opportunity to develop in the future whether or not such development can presently be anticipated; and (2) such opportunity must be genuine and not illusory; i.e., the areas of present surplus must not only have the legal right to develop, but this at no greater cost than they would have borne had no exports therefrom been made. To accomplish these two objectives, language must be drawn in substitution of the suggested "New Melones" clause. It has become abundantly clear that a legal reservation of a "water right" does not afford an area or state of origin sufficient protection. As water supply development proceeds, the least expensive sources are developed first, leaving the more expensive sources for later development; thus the problem of providing adequate protection to the later users involves economics as well as bare legal water rights. The development of water supplies outside of the Pacific Southwest Region, first to maintain a basic supply of 7.5 million acre-feet per annum and then to meet existing deficiencies and growth requirements in the Region, must not force the people of the areas of origin and of the 1... That before initiating any diversions of water from the Stanislaus River Basin in connection with the operation of the Central Valley Project, the Secretary of the Interior shall determine the quantity of water required to satisfy all existing and anticipated future needs within that basin and the diversions shall at all times be subordinate to the quantities so determined."Epson Perfection 4870 Photo, 400 dpi, 8 bit, 13,881,344 byte