Page 101


Page 101
Colorado River problem
Is Part Of,8
Full text
406 SMITH ON THE COLORADO RIVER PROBLEM should be exercised to take no irrevocable steps that will prevent the highest use of that portion of the water supply remaining to the United States. It is impossible to state at present just where and how the last residual unappropriated water should be used, or where it will be most needed. Six of the seven States are so-called priority States, that is, States where the water laws are based on the doctrine of beneficial use according to priorities and where riparian rights do not exist. The seventh State, California, since the time limit for asserting riparian rights expired in December, 1923, is also a priority State, at least so far as the Colorado River is concerned. The decision of the Supreme Court in the Laramie River case is applicable, therefore, to the Colorado River Basin—in brief, the doctrine of beneficial use according to priorities is the basis for water division throughout the Basin, regardless of State boundary lines. There is no ownership or permanent control of the water by any project or any State. An appro-priator acquires the right to use the water, as far as he can make beneficial use of it, and as long as he does use it. The building of a reservoir is not necessarily an appropriation; actual beneficial application of the water to land, without undue delay, is required also. So much has been said and written in support of this principle of water law and the need for it in States where irrigation is practiced, that it would be superfluous to enter into a discussion of it here. The author states that the Boulder Project would put to beneficial use for power practically all the water in the Colorado River and would thereby acquire prior rights for it all. This suggests that a treaty between the seven States might be limited to an agreement that the use of water for power should of itself create no rights as against its later appropriation for irrigation, either up stream or down stream. It is an open question as to whether the author's statement is correct. A year ago (1923), the Federal Power Commission proposed to stipulate in the licenses for power that no rights prejudicial to the development of irrigation are acquired by the licensees. Many authorities believe that such a stipulation would protect the Upper Basin States, especially if similar provisions should be made in the power permits to be issued by the States. In the absence of an agreement, a test case should be brought before the United States Supreme Court, to determine whether a power dam can acquire rights as against irrigation. The Imperial Valley should bring such a suit against the permittees of the Flaming Gorge Dam site. A more comprehensive contract or agreement may be needed between the three States of the Lower Basin and the Federal Government. It should include provisions covering (1) the location of any dam or dams on State boundary lines; (2) the subject of taxation; and, (3) the operation and maintenance of structures built on boundary lines, if built by public agencies, and the allocation of their costs and benefits. Location of First Dam.—The writer agrees fully with the author that "storage for equalization of flow should be provided above the Canyon Section, and that storage for re-regulation of flow should be provided at the bottom of the Canyon Section"; and also that the storage capacity required

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