THIS IS A REPRINT OF CHAPTER 2 of NEW COURSES FOR THE COLORADO
PUBLISHED BY THE UNIVERSITY OF NEW MEXICO PRESS, 1996
With permission by the author and publisher
The West Against Itself: The Colorado River - An Institutional History
by Norris Hundley, Jr.
"River of Controversy" might have been the name if the Spanish explorers could have foreseen the many bitter conflicts over the Colorado. But their attention focused naturally on what first caught their eye, and they christened the river with a name reflecting the ruddy color produced by the enormous quantities of silt-more such sediment than carried by all but a handful of the world's streams. Like the Indians who knew the Colorado by other names and had relied on its waters since time immemorial, the Spaniards, a people from a water-shy country, recognized at once the river's critical importance to the area, although they could only guess at the size of the drainage basin-practically the entire lower left-hand corner of the present United States.
From its headwaters high in the Wind River Mountains of Wyoming, the Colorado meanders 1,400 miles and is the sole dependable water supply for 244,000 square miles, an area embracing parts of seven western states (Wyoming, Colorado, Utah, New Mexico, Nevada, Arizona, California) and Mexico. Though the watershed is vast, the Colorado is not a heavy flowing stream, ranking about sixth among the nation's rivers and having an average annual volume of less than fifteen million acre-feet. This is only a thirty-third that of the Mississippi and a twelfth that of the Columbia, but this modest flow became in the twentieth century the most disputed body of water
in the country and probably in the world. The controversies extended far beyond the basin and involved great population centers that have built or are seeking to build aqueducts hundreds of miles long to develop the farms, cities, and industries of Denver and eastern Colorado, Salt Lake City and western Utah, Albuquerque and central New Mexico, and especially the vast megalopolis of Southern California stretching from north of Los Angeles to the Mexican border. Over the years the drive for water significantly altered the
appearance and quality of the Colorado's flow, forced domestic and international agreements that sometimes harmonized and just as often exacerbated relations among water users, and created a legacy of laws, court decisions, and water-use patterns that continue to influence the lives of millions of people in the United States and Mexico.
Contents
Genesis of an Idea: Arthur Powell Davis
Imperial Valley and the All-American Canal
Enter Los Angeles
A Six-State Pact
Arizona Overwhelmed: The Boulder Canyon Act
"Arizona V. California: Round One"
The Mexican Water Treaty
Upper Basin Compact: Harbinger of Development
"Arizona V. California: Round Two"
"Arizona V, California" and the American Indian
The CAP: Catalyst for Basinwide Development
Salinity Controversy with Mexico
Retrospect
Notes
Genesis of an Idea: Arthur Powell Davis
For hundreds of thousands of
years, the Colorado and its network of tributaries flowed without interruption
to the sea. For a much shorter span, but one still measured in thousands of
years, societies made their homes along the watercourses without appreciably
changing either river or basin. The coming of the Spaniards in the sixteenth
century, Mexico's short hegemony nearly three hundred years later, and the
American conquest in the mid-nineteenth century scarcely altered the
waterscape. The twentieth century, however, brought dramatic change as
hundreds of thousands of newcomers poured into the Southwest and turned their
energies toward developing the region's scarce water supplies.
Among the earliest advocates of
large-scale development of the Colorado River was Arthur Powell Davis, nephew
of the famous explorer and geologist John Wesley Powell. Davis was not the first
to advance a sweeping plan, but as a prominent engineer in the U.S. Geological
Survey and later in the Reclamation Service, he possessed the skills and
connections to draw public attention to the proposal that he first unveiled in
1902. What he sought, he told his fellow engineers, was "the gradual
comprehensive development of the Colorado River by a series of large storage
reservoirs." The keystone was to be a dam on the lower river built "as high as
appears practicable from the local conditions."1
Davis was driven by more than an
engineer's natural desire to be associated with one of the world's great
technological feats. He shared with Henry George and other reformers of the
day a concern about the demoralizing effects of land monopoly, the end of the
frontier, and urban crime, poverty, and unemployment. While many Americans
pointed with pride to growing cities and industries, Davis worried about the
seemingly precipitous decline in public morality and advocated a return to the
values associated with the independent yeoman farmer so idealized by Thomas
Jefferson.2 To Davis, revitalization of the nation's moral fiber lay in
getting more people to work the soil, and a major means to that end would be
the reclamation of western lands mistakenly considered useless by many because
of lack of water. The task, he recognized, would be enormous, so great and so
expensive that only the federal government could overcome the obstacles and
provide the necessary overall planning. And the place to begin, he believed,
was the Colorado River. "I . . . considered problems in all of the Western
States," he later recalled, "but there [was] . . . none which. . . excited my
interest and imagination and ambition so much as the development of the
Colorado River Basin. "3
Davis found a vehicle for his
ideas in the newly created Reclamation Service, but lack of funds and
mercurial public support prevented headway for nearly two decades. Then
Californians, first in the Imperial Valley and later in Los Angeles and
eventually throughout Southern California, endorsed his plans and set in
motion a series of events that profoundly affected the Colorado River Basin.
Imperial
Valley and the All-American Canal
Settlers in California's Imperial
Valley, an arid but enormously fertile area of 600,000 acres just north of the
Mexican border, only slowly became interested in Davis's ambitious scheme.
Rather than dams, they wanted a canal-an "All-American Canal," as they called
it-that would free them from their dependence on Mexico and assure them enough
water to develop their lands. Because of a ridge of sandhills separating the
valley from the Colorado, water had been brought in by diverting it south of
the border through an old overflow channel of the river. The price exacted by
Mexico for this privilege was stiff-the right to take up to half of the
diverted water.4
At first the price seemed
tolerable. Mexican development proceeded slowly while that in the Imperial
Valley boomed following the introduction of water in 1901. By 1916 more than
300,000 acres were under cultivation, and valley leaders had plans to expand
production even further.5 But by this time the entire river would occasionally
be diverted, especially during the critical low-flow months of summer, and
even taking the whole stream often produced insufficient water. While Mexico's
water needs remained considerably less than those of US farmers, the reduced
flow crossing the line still meant rationing of water in the valley. Alarmed
by the threat to their crops and convinced that the situation would
deteriorate as Mexico expanded its own agriculture, valley farmers began
demanding a delivery system wholly in the US Their clamor grew louder in
response to unsettled conditions below the border created by the Mexican
Revolution of 1910, refusal of Mexican landowners to share the cost of levees
to protect the delivery system, and the duties imposed on equipment used in
protective work below the line. Especially galling to valley farmers was the
disclosure that the largest single landholder on the Mexican side was a
syndicate controlled by Los Angeles businessmen, the most prominent of whom
was Harry Chandler, publisher of the Los Angeles Times. "These Mexican . . .
lands," complained valley residents, "menace us like a great sponge, which
threatens to absorb more and more water, until such time as they will take all
of the natural flow of the river. "6
Unable to finance a new canal by
themselves, valley farmers in 1917 turned to Washington for help. Operating
through the Imperial Irrigation District, a powerful and well-organized public
agency in charge of the valley's water system, they persuaded the Secretary of
the Interior to investigate the feasibility of an All-American Canal and two
years later got Congressman William Kettner to introduce a bill authorizing
construction of the aqueduct.7
The Kettner Bill immediately
attracted the attention of Arthur Powell Davis, who saw it as an opportunity
to lobby for his own river development plans. The canal, he told the bill's
advocates, would be impractical by itself. It would be at the mercy of the
floods that annually menaced settlements along the river and from 1905 to 1907
had actually broken into the Imperial Valley, destroying fields and homes and
creating the Salton Sea. But "if we had complete storage," he observed, "the
flood menace would be removed." To Davis the issue was clear-cut: "The
Imperial Valley problem . . is inseparably linked with the problem of
water storage in the Colorado Basin as a whole. "8
Strong endorsements of Davis's
position came from the engineering team sent by the Secretary of the Interior
to investigate the canal's feasibility, from groups supporting the
back-to-land movement, and from the League of the Southwest, a highly vocal
booster organization representing scores of businesses and local governments.
Imperial Valley leaders at first resisted tying the canal to a more grandiose
and complicated project, but finally they surrendered to the force of logic
and to the pressure from Davis and others. In 1920 they joined with Davis to
promote passage of the Kincaid Act, which authorized the government to secure
needed field data about the canal and storage sites.9 These events did
not go unnoticed elsewhere.
Enter Los Angeles
Among those following closely the
maneuvering in Washington were Los Angeles officials, especially blunt-spoken
William Mulholland, chief of the Bureau of Water Works and Supply, and E. F.
Scattergood, head of the Bureau of Power and Light. They had spent their lives
working to ensure that the city had all the water and electricity that it
needed. For a community that had grown by nearly 600 percent during the two
decades after 1900, this had been no small accomplishment. The city had fought
successfully to gain control of the Los Angeles River, the major local supply,
and in 1913 had completed a 233-mile-long aqueduct to the Owens River. 10 By
1920 as the Los Angeles population approached 600,000, Mulholland and
Scattergood were turning their attention to the Colorado.
Of concern to city leaders at
first was electricity rather than water. The aqueduct to the Owens Valley
seemed to guarantee a plentiful water supply, but experts predicted a power
shortage within three to five years. Mulholland and Scattergood warned that
local plant construction would only temporarily postpone, not prevent, a
shortage. They advocated as a solution Arthur Powell Davis's proposal for a
dam on the Colorado River. Told that a hydroelectric plant at the dam could
provide the city with enough power for "all future needs," the city council
required little persuasion. In August 1920, it endorsed Davis's plan and
boldly proclaimed the city's intention to obtain power "direct from the
Colorado River. "11
The Los Angeles action delighted
Davis and his new allies from the Imperial Valley, but another city decision a
few years later pleased them even more. In 1923 a dry cycle prompted Los Angeles
to look to the Colorado for water as well as electricity. Such a venture would
require special diversion dams, an aqueduct even longer than the one to Owens
Valley, and pumping stations to raise water over the mountains separating the
city from the river. The undertaking was too costly for the city alone. In 1924
Los Angeles leaders negotiated with nearby communities for the creation of the
Metropolitan Water District of Southern California (MWD). Three years later
the state legislature approved the new agency and authorized it "to provide a
supplemental water supply to the coastal plain of Southern California. "12
These steps placed Los Angeles and the twenty-six other agencies that eventually
joined MWD squarely alongside Davis and the Imperial Valley in their quest to
develop the Colorado River.
Upper
Basin Alarm and the Colorado River Compact
Long before Los Angeles entered
into an alliance with MWD, leaders in the Colorado River Basin outside of
California had become troubled. All recognized that the future development of
their areas depended heavily on the Colorado, and they watched uneasily the
advances being made by a state that contributed the least amount of runoff to
the river.
Particularly disturbed were
residents in the upper portion of the basin where the growing season was
shorter and the lands less easily watered than in California or Arizona. The
upper states wanted reclamation projects of their own, including some that
would benefit areas outside the basin, especially in western Utah and eastern
Colorado. Denver, for example, like Los Angeles, lay outside the basin and had
grown rapidly if not as spectacularly as the southern California city. From a
population of 134,000 in 1900, it had nearly doubled in size by 1920 and was
threatening to precipitate a water war with its neighbors. "The most serious
problem that confronts us at this time," warned a Denver official, "is the
future water supply. Unless a construction program is formulated . . . that
will bring to Denver and the agricultural communities surrounding it more
water . . . , any great future growth in Denver's population must be made at
the expense of the agricultural communities surrounding it."13
Heightening such concern
throughout the Upper Basin were a series of events in early 1922. The first
occurred in February when the Interior Department issued the long-awaited
study called for by the Kincaid Act. Known as the Fall-Davis Report-named for
Secretary of the Interior Albert Fall and Arthur Powell Davis; who was now
head of the Reclamation Bureau-it recommended construction of an All-American
Canal, a storage reservoir "at or near Boulder Canyon," and the development of
hydroelectric power to repay the cost of the dam. 14 The next development that
disconcerted the upper states took place in April, when Congressman Phil Swing
from the Imperial Valley and Senator Hiram Johnson of California introduced a
bill to implement the report's recommendations. This Boulder Canyon, or Swing-
Johnson, bill met with immediate hostility from Upper Basin representative,
who mounted a vigorous campaign against it. 15
Still another cause for alarm in
the upper states occurred two months later. This involved western water law,
specifically the doctrine of prior appropriation which gave legal entitlement
to the first person using water-"first in time, first in right. "This principle
was recognized within each basin state, but uncertainty existed over whether
it applied to users in two or more states on a common stream. In June 1922 the
US Supreme Court, in Wyoming v. Colorado, eliminated all doubt by announcing
that the rule of priority applied regardless of state lines. 16 Now even the
law seemed to favor faster-growing states like California. Upper Basin leaders
responded to the decision by reaffirming adamant opposition to all reclamation
on the lower Colorado until their own interests were safeguarded.
The leader in defining those
interests and in devising a protective strategy was Delph Carpenter of
Colorado. A brilliant and prominent attorney with years of experience in water
litigation, he had long advocated compacts or treaties to resolve interstate
disputes. Although no states had demonstrated the practicality of his idea by
apportioning water among themselves, Carpenter believed that the usual
recourse to litigation was a mistake-it was too costly, too time-consuming,
and invariably it created more issues than it resolved. His participation in
Colorado's lengthy Supreme Court battle with Wyoming had reinforced these
views as had the claims of federal attorneys that the US owned all the
unappropriated waters in the West's streams. If the states did not put their
houses in order, he feared that the federal government might do it for them,
thus "weakening . . . state autonomy on all rivers. "17
In 1920, at a meeting of the
League of the Southwest, Carpenter called for a compact covering the Colorado
River. It was an idea whose time had come. The League enthusiastically
endorsed his proposal, as did the legislatures of all the basin states. In
August 1921 Congress consented to the negotiation of a compact. 18 Because the
river was an international stream and considered navigable, the federal
government sent to the negotiations its own representative, the highly
respected Secretary of Commerce, Herbert Hoover. The delegates, now dubbed the
Colorado River Commission, invited Hoover to chair the sessions which began in
January 1922.
The commissioners spent most of
1922 in fruitless bargaining. They wrangled incessantly, each trying to ensure
his state all the water it might need while refusing a similar concession to
the others. Finally convinced that they would be unable to settle on a specific
volume of water for each state, they decided to concentrate instead on
apportioning the river between the upper and lower sections of the basin. 19
But even that decision was more easily reached than implemented. It rested on
the assumption that the needs of groups of states could be pegged more easily
than those of individual states, and it ignored the possibility of serious
conflicts among the states within each basin. Nonetheless, it set the stage
for the final round of talks scheduled for November 1922 in New Mexico.
Great pressure for a settlement
permeated the negotiations which began on November 9 at Bishop's Lodge, a posh
resort near Santa Fe. Californians were driven by their desire for the
Swing-Johnson Bill, which had been bottled up in Congress by Upper Basin
representatives in control of key reclamation committees. Upper Basin leaders
feared that if they did not negotiate a water supply for themselves, a
disastrous flood on the lower river might stampede Congress into giving
Californians the legislation that they wanted. "We simply must use every
endeavor to bring about a compact . . ," pleaded Delph Carpenter, "otherwise .
. . we may never again have a like opportunity. "20
Carpenter had taken the lead in
seeking a settlement by circulating, prior to the Santa Fe meeting, a draft
proposal allocating the Colorado's waters equally to the Upper and Lower basins.
He established the demarcation point between the basins at Lee's Ferry, an old
river-crossing station located in northern Arizona's canyon lands not far from
the Utah border. While the boundary thus placed parts of several states in
both basins, the Upper Basin consisted mainly of Wyoming, Colorado, Utah, and
New Mexico and the Lower Basin of Arizona, California, and Nevada.
Discussion of Carpenter's proposal
began on an ominous note. Most delegates considered it appealing, but W. S.
Norviel of Arizona strongly objected and very nearly brought the proceedings
to an end. He sharply criticized the plan for charging the Lower Basin for the
water in its tributaries. Though estimates varied, most experts believed those
tributaries produced a significant runoff-some two to three million
acre-feet-with virtually all of it coming from Arizona streams. Norvie~
demanded for the Lower Basin all the water in the tributaries, in addition to
half the river's flow as measured at Lee's Ferry. He would have preferred that
Arizona's tributaries be given specifically to the state, but recognized that
the decision to apportion water to basins instead of individual states
precluded such an allocation. Besides, he felt Arizona had nothing to fear
from the other Lower Basin state~ Nevada and California. Nevada's water
requests had always been minimal, while California's "ultimate development,"
he believed, was ''definitely well-known'' and posed no threat to Arizona. 21
For days Norviel tenaciously
defended his counterproposal, as first one delegate and then another advanced
alternatives and sought to bring the conflicting parties together. His
intransigence gradually gave way as he found himself standing alone against
the pressure for a compromise settlement. The agreement to which he and the
others finally gave their approval foresaw the delivery of 7.5 million
acre-feet per year to each basin. Since the bulk of the water originated in
the Upper Basin, however, the compact required the upper states to deliver
seventy-five million acre-feet at Lee's Ferry every ten years. The ten-year
provision allowed the Upper Basin to take advantage of the sometimes severe
fluctuations in river flow. In addition to the basic allocation to each basin,
the lower states could increase their apportionment by a million acre-feet.
This provision reflected Norviel's insistence that the Lower Basin receive
compensation for the water in its tributaries. The amount was considerably
less than he had sought but high enough to win his grudging approval of the
agreement. 22
The negotiators grounded their
water-allocation formula on the Reclamation Bureau's assumption that the
average annual flow of the Colorado River at Lee's Ferry was 16.4 million
acre-feet. There was no gauging station at Lee's Ferry and this estimate
derived from measurements made hundreds of miles downstream at Yuma. It also
ignored years of unusually low flow prior to 1905. Nonetheless, the strong
desire for a settlement caused no one to challenge the accuracy of the
Bureau's estimate-an estimate that indicated 1.4 million acre-feet remained in
the main stream as surplus for later allocation. 23
The few remaining issues were
dealt with quickly. The delegates easily agreed to give highest priority to
water use for "agricultural and domestic purposes." Hydroelectric power came
in for a lesser priority and navigation was made "subservient" to all other
uses.24 As for a possible future treaty with Mexico, the delegates concluded
that any such obligation should be met with surplus water, and if that proved
insufficient, then the two basins should share equally the burden. This
provision reflected a desire to cover an important contingency rather than
sympathy for people in Mexico. "We do not believe they ever had any rights,"
observed Herbert Hoover. 25 The Indians in the Colorado River Basin hardly
fared better. Their rights were considered "negligible" and were dealt with
perfunctorily in what Hoover called the "wild Indian article": "Nothing in
this compact shall be construed as affecting the obligations of the United
States of America to Indian tribes. "26
On Friday, November 24,1922, after
fifteen days of bargaining, the delegates reached agreement on the compact.
They adjourned to Santa Fe where formal signing took place in the Palace of
the Governors amid much fanfare and self-congratulation. 27
A Six-State Pact
The euphoria at Santa Fe was short
lived. Within five months every state had ratified the compact except Arizona,
but Arizonaís refusal threatened to scuttle the enterprise since only
unanimous approval would make the pact effective. Norviel had returned home to
find a new governor in office whose views and those of his closest advisers
were hostile to the agreement. "Arizona cannot afford to plunge blindly into a
contract that may be unfair to her," Governor George W. P. Hunt cautioned the
state legislature.28 When studies completed a short time later suggested that
Arizona might need the entire Lower Basin allotment to develop lands in the
central part of the state, Hunt's position hardened. To him, opposition to the
compact now became a test of state loyalty. He received strong support from
private utility firms, which were alarmed that the pact would pave the way for
the Boulder Canyon legislation and the construction of competing public power
facilities. Powerful mining interests chorused their opposition because a
public power plant would operate tax free. Since mining companies were
shouldering nearly half the Arizona tax load, they would obtain no relief if
the power plants to be built along the lower river and partially in Arizona
were tax exempt.
But the major concern was water.
Hunt believed the compact's "first fundamental error" was its failure to make
allocations to individual states.29 By suspending the law of prior appropriation
between the basins, the compact would protect the Upper Basin from California;
but it did nothing to safeguard Arizona from California. The principle of
priority would still prevail among the Lower Basin states. This posed no
problem for Nevada whose small needs were readily conceded by Arizona and
California, but Arizonans became extremely cautious and then alarmed as they
discovered potential uses for water and hydroelectricity not anticipated
earlier. That alarm intensified when Californians, especially those associated
with the Metropolitan Water District, made similar discoveries. Arizonans
found additional reason for concern in the promise of Upper Basin leaders to
withdraw their opposition to the Boulder Canyon Bill once the compact was in
force. Enactment of the Boulder Canyon legislation would immeasurably aid
California by authorizing the All-American Canal and especially the high dam
that would regulate the river and permit the MWD to build its own aqueduct and
transmission lines. Arizonans, on the other hand, saw virtually nothing for
themselves in the measure. A dam in Boulder Canyon would benefit few Arizona
lands unless other expensive works were also constructed-works viewed by most
experts at the time as economically unfeasible and for which there was no
enthusiasm in Congress. Arizonans also worried about what they called the
"Mexican threat." A regulated river would enable Mexico to expand its
agriculture, and a future treaty might recognize the increased water uses. Put
simply, Arizonans feared there would be little water remaining for them after
the Upper Basin, California, and Mexico got what they wanted. Those fears,
together with Arizona s own ambitious plans for the Colorado, translated soon
into implacable opposition to both the compact and the Boulder Canyon
legislation. 30
Arizona's refusal to ratify the
compact prompted the other basin states to reassess their earlier insistence
on approval by all seven basin states. Delph Carpenter took the lead in
campaigning vigorously for a six-state agreement. Some Upper Basin leaders
worried about endorsing a compact to which Arizona would not be a party, but
Carpenter persuaded them that no practical alternative existed. Because
California and Arizona were constantly reevaluating their earlier water needs
as too small, it would be folly to attempt to renegotiate the pact and
allocate water to each state, as Arizonans were insisting. As a nonsigner,
Arizona might try to develop projects that would encroach on the Upper Basin
allocation, but success in such a venture would require Washington's approval.
The federal government had reserved all the possible dam sites along Arizona's
canyons and was unlikely to release any of them without approval of the other
basin states. "If the compact were agreed to as binding upon the United States
and the six states which have already ratified," reasoned Carpenter, "it would
in large measure serve the desired purpose. . . .î 31
Carpenter's logic proved
persuasive. By March 1925 all the upper states and Nevada in the Lower Basin
had approved the six-state arrangement. That left only California.
Californians favored the reduced requirement for ratification, but only if
through it they could absolutely assure themselves the Boulder Canyon Project.
Earlier at Santa Fe, they had sought to have such an assurance written into
the compact itself, but that had been considered inappropriate. Now, grown
weary of waiting for congressional action, they sought that assurance through
a different approach. Assemblyman A. C. Finney of the Imperial Valley
introduced a resolution in the state legislature making California's approval
of the six-state pact dependent upon construction of a high dam on the lower
river. Passage of the resolution in April 1925 shifted the major battlefield
over the Co~Colorado River to Congress.32
Arizona
Overwhelmed: The Boulder Canyon Act
In late 1925, when Phil Swing and
Hiram Johnson reintroduced in Congress their Boulder Canyon legislation, they
included the compact among its provisions. In this way, congressional approval
of the compact would mean authorization of lower-river development as well.
Swing and Johnson subsequently added other inducements calculated to broaden
support-royalties on power to be divided equally between Arizona and Nevada
(in lieu of the taxes that those states would collect if the project were built
by private capital) and funds authorizing the. investigation of possible
reclamation projects in every basin state except California. 33
Congress at first balked at
the measure1 bowing not only to Arizona's protests but also to those of
easterners and others unsympathetic to expensive reclamation and public power
projects. In addition, many legislators felt that Arizona and California
should be given more time to resolve their differences and to negotiate a
Lower Basin apportionment of water. Such opposition lessened over the next two
years as both states persisted in their refusal to reach agreement and as
Californians launched~ a campaign dramatically highlighting the flood dangers
and water and power needs along the lower river.
Upper Basin leaders were
pleased that the Boulder Canyon Bill included the compact among its
provisions, but their earlier anxieties returned as the prolonged debates on
the measure rekindled their fears of both California and Arizona and
reawakened their earlier preference for a seven-state compact. They finally
agreed to support the bill, but only if California would promise to limit its
use of Colorado River water. Without such a limitation, California could be
expected to increase its uses until little remained for Arizona. That state,
in turn, would obviously do everything possible to develop projects of its
own-projects that would take water meant for the Upper Basin. Arizona would
have to overcome serious economic and political obstacles to build such
projects, but so long as the state possessed even a remote chance of doing so,
the Upper Basin felt threatened. If, on the other hand, California would li~t
itself and leave a significant volume of Lower Basin water for Arizona, then
the threat to the Upper Basin would be reduced considerably. "The States of
the upper-basin much prefer a "seven-state compact," observed a Colorado
congressman, "but they desire a compact of some kind, and with a provision under
which one of the lower basin States-California- practically steps into the
position of guarantor, so that the upper-basin [states] would be reasonably
assured . . . that they could go ahead safely in developing their irrigation
enterprises. "34
California agreed, but only
reluctantly and after much haggling over the precise restriction on its uses.
Congress finally settled on 4.4 million acre-feet plus no more than half of
any surplus water unapportioned by the compact. Congress then went further in
trying to harmonize basin rivalries by adding still another provision to the
Boulder Canyon Bill giving prior approval to a Lower Basin pact. The suggested
agreement would apportion 0.3 million acre-feet to Nevada, 4.4 million acre-feet
and half the surplus to California, and 2.8 million acre-feet plus half the
surplus to Arizona. In addition, all the waters of the Gila (Arizona's principal
Colorado tributary) would go to Arizona and be exempted from any future
Mexican treaty. Many objected to the proposal as an infringement on states'
rights, but its author disagreed, insisting that it was merely a suggestion
and "not the request of the Congress." "If California and Nevada and Arizona
do not like this agreement," he explained, "they do not have to approve it.
"35 With that assurance, the proposal won adoption and paved the way for a
final vote on the bill.
Over Arizona's continued
vigorous objections, Congress approved the Boulder Canyon Bill in December
1928. Two months later the California legislature agreed to the limitation
imposed by Congress and on June 25, 1929, President Herbert Hoover declared
the act effective.36
ìArizona
V. California: Round One"
Enactment of the Boulder
Canyon legislation meant approval of the Colorado River Compact and
authorization of the All-American Canal and a high dam on the lower river.
Under the terms of the new law, construction of the dam could not begin until
the federal government had obtained contracts for the hydroelectric power
needed to pay for the project. Since Nevada had no market for Boulder Canyon
power and Arizona had neither a market nor a desire for one, Californians in
1930 obligated themselves to purchase all the electricity and thereby
underwrite the cost of the dam and power plant. The contracts permitted the
federal government to draw back 36 percent of the power for use in Arizona and
Nevada any time during the fifty years required to pay for the project, but
until the two states asked for power, California agencies had to take all of
it.37
The Great Depression of the
1930s slowed construction, hut in 1935 Hoover Dam was completed (in more
suitable Black Canyon, rather than in Boulder Canyon as originally planned)
and a year later hydroelectric power reached southern California communities.
In June 1941 the Metropolitan Water District of Southern California began
delivering water to the coastal plain, and the next Imperial Valley residents
received their first supplies through the All-American Canal. Californians
delighted in these developments, which during the next three decades flowed
Los Angeles to grow to three million inhabitants and the four coastal counties
to attract a population in excess of ten million.35
Arizonans looked angrily on
California's rapid growth. Their state also grew during the same period, but
the increases in people and economic development paled in comparison to those
of California which they accused of taking water that rightly belonged to them.
At first Arizonans returned to the negotiating table and tried to hammer out
a Lower Basin compact with California, but the two states repeatedly failed to
harmonize their differences and neither state was satisfied with the pact
suggested by Congress in the Boulder Canyon Act.
When bargaining collapsed,
Arizonans turned to the US Supreme Court for help. In 1930 in the first of a
series of Arizona v. California cases, they asked the courts to declare
unconstitutional the Boulder Canyon Act because it violated Arizona's
"quasi-sovereign rights" by authorizing construction of a dam partially in
Arizona without the state's permission. Congress's claim that it had acted to
improve navigation was a "subterfuge and false pretense." The Court was
unimpressed: authorization of the dam came clearly within the government's
power to improve navigation and represented a "valid exercise of the
Constitutional power. "39 Four years later Arizonans returned to the Court and
asked it to certify for later use some oral testimony on the meaning of
certain sections of the Colorado River Compact. They planned to use the
testimony in a future suit against California. Again the Court disappointed
them: "The meaning of the Compact . . . can never be material . . . since
Arizona refused to ratify. "40 Still unwilling to admit defeat, Arizonans
turned once more to the Court a year later. In 1935 they asked for a judicial
apportionment of the lower Colorado in which Arizona would receive an
"equitable share of the water." But, as before, the justices threw out the
case. The technical reason was Arizona's failure to make the US government a
party to the suit. Yet even if the US had been included, the Court left little
doubt that the outcome would have been the same. Unless Arizona could show
that it was actually being deprived of water to which it held title, there
would be no "justifiable controversy."41 With hundreds of millions of gallons
flowing unused in the river, Arizona stood little chance of demonstrating that
harm had been done.
Convinced at last that the
Court would not provide a satisfactory solution, Arizonans reopened bargaining
with California. But here, too, the old patterns of intransigence reemerged.
Arizonans had not endeared themselves to their rival when in 1933 they had sent
their National Guard to prevent construction of MWD's diversion works on the
Colorado. The shutdown proved temporary, but the incident had hardened
differences that became further embittered as first one and then another of
California's projects were completed. 42 By the early 1 940s the accumulated
setbacks prompted some leading Arizo-nans to reassess the state's water
policy-a policy. grounded on opposition to the Colorado River Compact.
California's advances
naturally played a role in Arizona thinking, but so, too, did developments at
home. The state's population had more than doubled in the two decades
following the drafting of the compact. By 1944 the number of people stood at
700,000 with most of them congregated in the central part of the state near
the rapidly growing cities of Phoenix and Tucson. Local water supplies were
inadequate for the growth envisaged by state leaders, and in some places wells
had gone dry while in others pumping had led to land subsidence.
Electricity was in even
shorter supply than water. In 1939 the Bureau of Reclamation responded to
Arizona's plea for emergency power by establishing a line to Hoover Dam.43
Arizona's decision to accept
Hoover Dam electricity marked a major change in the state's policy. Leaders
had delayed taking power as long as possible on the grounds that doing so would
compromise their opposition to the. compact. They had found support for such
resistance from private power companies that were not anxious to compete with
cheaper public power. But the need for electricity proved eventually too strong
to resist. In time so did the desire for water. Many Arizonans began arguing
that if the state was to win support in Congress for reclamation projects of
its own, Arizona would have to ratify the compact. Taking this message directly
to the people of the state was Governor Sidney Osborn. "With the passage by
Congress of the Boulder Canyon Project Act in 1928," Osborn declared in
1943,"the era of theorizing about the Colorado's riches has ended. Whatever
our previous opinion about the best place and the best plan for utilizing its
water . . . we now can only recognize that the decisions have been made,
and the dam has been constructed. "44 . On February 24, 1944, the Arizona
legislature unconditionally ratified the compact and reversed twenty-two years
of opposition.45 State leaders then began working closely with the Reclamation
Bureau to devise a major reclamation project for Arizona. The struggle now
entered a new phase.
The Mexican Water Treaty
Reinforcing Arizona's decision to
ratify the compact was a treaty signed three weeks earlier by the United States
and Mexico. On February 3, 1944, the two countries had ended nearly a half
century of controversy by agreeing to divide the waters of the Colorado River.
Some two thousand square miles of Mexican territory lay within the Colorado
Basin, a modest amount of land when compared to the US drainage area, but it
included the Mexicali Valley, one of the richest agricultural regions in
Mexico.
The Mexicali Valley lies just across the border from
California's Imperial Valley, and the development of the two areas was closely
intertwined from the outset. The need to divert water south of the line and to
allow landholders in Mexico up to half the flow fostered farming in the
Mexicali Valley while also stimulating demands in the US for the All-American
Canal. Some leaders in both countries early advocated a treaty dividing the
river's waters, but negotiations seldom got beyond the preliminary stage.
Complicating the task were attempts to reach a similar agreement on the lower
Rio Grande, the other major river shared by the US and Mexico. In 1906, the
two countries had arrived at a settlement on the waters of the upper Rio
Grande (the area north of Fort Quitman, a demarcation point just below El Paso
and Juarez), but talks on the lower river stalled and became increasingly
tangled with those on the Colorado. While virtually all the waters of the
Colorado originated in the US, the situation was almost the reverse on the
lower Rio Grande where more than 70 percent of the runoff came from Mexico.
The situation contained the elements for a horse trade, but neither country
would compromise enough to reach a settlement. Each nation tended to approach
the rivers separately and to seek the superior settlement even when this meant
adopting a legal position on one river at odds with the position advanced on
the other stream. During extended talks in 1929 and 1930, the US offered
Mexico 0.75 million acre-feet of Colorado River water, the maximum amount she
had used in any one year up to that time, but Mexico insisted on more than
four times as much. When the talks collapsed, Mexico expanded her agriculture
below the border while Imperial Valley farmers looked forward to the completion
of the All-American Canal with which they hoped to force a settlement on
Mexico. 46
By the early 1940s both
countries were anxious for an accord. The completion of the All-American Canal
in 1942 and plans for a project on the lower Rio Grande that would neutralize
Mexico's superior position there brought Mexican officials to the bargaining
table. The US sought to put a limit on Mexico's Colorado River uses, which had
doubled during the previous decade and could be expected to increase further
as a result of Hoover Dam's regulation of the river. Only when Americans began
using virtually the entire flow-and that might not be for decades-would the
All-American Canal become an effective weapon. The US government, enmeshed in
the crisis of World War II, also believed that a settlement of the water
dispute
would significantly advance the Good Neighbor Policy of President
Franklin D. Roosevelt.
After months of bargaining
during which the State Department consulted frequently with leaders in the
Colorado Basin states, the two nations signed a treaty in February 1944.
Mexico received 1.5 million acre-feet, an amount slightly less than the State
Department believed that country was then using. 47
Californians greeted the
news with anger. They claimed Mexico deserved only 0.75 million acre-feet, the
maximum amount that it had used prior to the completion of Hoover Dam in 1935
and the amount offered in the unsuccessful negotiations of 1929 and 1930.
Behind California's strong opposition was the belief that Mexico was being
given water that would mostly come from California. The state had limited
itself to 4.4 million acre-feet plus half the surplus, and California was
currently using nearly a million acre-feet of surplus water. California's
calculations indicated there would be little or no surplus remaining if Mexico
received the amount promised in the treaty. 45
While Californians
fought vigorously to prevent US Senate approval of the agreement, the other
basin states advocated ratification. They feared that Mexican uses would
increase further and perhaps encroach on the basic compact allocations if a
settlement were not obtained. Even Arizona, which also had designs on surplus
water, endorsed the treaty. Arizonans, unlike Californians, had not built
expensive aqueducts with capacities to carry surplus waters to the state.
Moreover, Arizonans, who had now ratified the compact, shared the upper
states' desire to safeguard the basic allocations in that agreement. Support
also came from those worried about the harm that would be done to the Good
Neighbor Policy by a rejection of the treaty. Repercussions would be more
serious than in earlier years since Mexicans, not American capitalists, were
now farming the Mexicali Valley. In 1938 the Mexican government had
expropriated most of the land belonging to the Chandler syndicate and the
remainder had been disposed of a few years later. Additional advocates of the
treaty were Texans on the lower Rio Grande who were pleased with the
provisions allocating water on that stream and providing for orderly
international development.
The broad support, together with pressure
from the White House, overwhelmed the California Opposition. On April 18,1945,
the Senate approved the treaty by a vote of seventy-six to ten. Five months
later, on September27, the Mexican Senate voted unanimous approval. 49
Upper
Basin Compact: Harbinger of Development
The Mexican treaty, Arizona's
ratification of the compact, and California's rapidly increasing uses of
Colorado River water forcefully reminded the upper states of their own
reclamation ambitions. Colorado had already taken the lead in 1937 by winning
congressional approval of the Colorado Big Thompson Project, a plan for
transporting water out of the basin to the cities and farms on the eastern
slope of the Rockies. Other projects awaited a feasibility study authorized by
the Boulder Canyon Act but delayed by the onset of World War II. Finally, in
March 1946, the Reclamation Bureau issued the long-awaited study. The message
proved disconcerting: many possible projects existed on the headwaters but
there was not enough water for all of them. Until the upper states determined
their individual rights the Bureau refused to approve any proj ects.50
Within four months, the governors of the Upper Basin states had
authorized negotiation of a compact to apportion their share of the river's
waters. After two years of gathering data and holding public hearings,
delegates gathered in Vernal, Utah, in July 1948 to draft an agreement. Three
weeks of negotiations produced a pact apportioning the Upper Basin water on a
percentage basis: 51.75 percent to Colorado, 23 percent to Utah, 14 percent to
Wyoming, and 11.25 percent to New Mexico. The use of percentages reflected
uncertainty over how much water would remain after the Upper Basin had
fulfilled its obligation to the lower states and, if the surplus proved
insufficient, to Mexico. Only Arizona, which had a small section of the state
in the Upper Basin, received a specific volume-fifty thousand acre-feet.
Unlike the compact of 1922, the Upper Basin agreement provided for the
creation of an interstate agency, the Upper Colorado River Commission, charged
with determining the water uses of each state and with reducing diversions if
that should become necessary to meet the obligations to the Lower Basin.51
The delegates circulated the draft
agreement among their respective state governments, which gave the go-ahead
for the formal signing in Santa Fe on October 11,1948. By early 1949, the pact
had received the approval of all the upper-state legislatures and Congress. 52
Upper Basin leaders now joined with Reclamation Bureau officials to obtain
major new reclamation projects for their region.
In early 1952 the
first Colorado River Storage Project Bill reached Congress. It called for a
billion-dollar dam-building program with major reservoirs at Echo Park on the
Green River and at Glen Canyon on the main stream near the Arizona-Utah
border. The bill immediately aroused opposition from southern Californians who
viewed any significant developments on the upper river as threats to their own
water uses. More recent measurements of flow had been calling into question
the rosy forecasts on which the 1922 compact had been based. Major opposition
also emerged nationwide and focused on the Echo Park reservoir, which would
flood the unique and beautiful canyons of Dinosaur National Monument. The alarm
escalated into the biggest battle over wilderness preservation since John Muir
had tried t9 keep a dam out of Hetch Hetchy Valley at the turn of the century.
The contest was essentially a civil war in which both sides labeled
themselves"conservationists." While one side campaigned for conservation for
use through dams and hydroelectric power, the other argued for conservation
through preservation of unique wilderness areas. The struggle took on added
intensity when opponents elevated Echo Park to the status of a test case that
they believed would shape national policy for decades.53
After several years of
struggle, the bill's advocates finally conceded that Echo Park would have to
go. Opposition in the House proved unmovable, and preservationists began
threatening to campaign against other dam sites mentioned in the bill. The
measure that finally cleared Congress in 1956 eliminated Echo Park and seemed
to reflect an unequivocal preservationist victory: "It is the intention of
Congress that no dam or reservoir constructed under the authorization of the
Act shall be within any National Park or Monument."54 Within a short time,
however, it became clear that the victory was far from complete.
Preservationists viewed their acquiescence to the other major dam in the bill
at Glen Canyon as a serious mistake that cost the loss of a remarkable
wilderness area. Their disappointment intensified several years later when they
failed to prevent the water rising behind Glen Canyon Dam from flooding Rainbow
Bridge National Monument in southern Utah.55 The congressional proviso in the
1956 measure appeared to be a dead letter.
Under the resulting Colorado
River Storage Project Act of 1956, Glen Canyon became the "cash register"
generating most of the revenue through the sale of hydroelectric power to
build a dozen so-called participating projects elsewhere in the Upper Basin.
The largest was the Central Utah Project outside the basin, which was to
receive water for nearly 144,000 acres of new land and a supplementary supply
for almost 243,000 acres. By 1963 Glen Canyon Dam had been completed and Lake
Powell had been brought into existence behind it. The act also authorized dams
for three tributarie~Blue Mesa on the Gunnison, Flaming Gorge on the Green,
and Navajo on the San Juan. Additional legislation in 1962 and 1964 further
rounded out Upper Basin desires by authorizing the San Juan~hama, Navajo,
Fryingpan~ Arkansas, Savery-Pot Hook, Bostwick Park, and Fruitland Mesa proj
ects.56
"Arizona
V. California: Round Two"
The Upper Basin's success
in obtaining reclamation projects aroused envy and concern in Arizona. That
state had approved the compact in 1944 and three years later greeted
enthusiastically the Reclamation Bureau's plan for a massive undertaking, the
Central Arizona Project (CAP). The plan resurrected and now deemed
economically feasible the old high-line canal scheme advocated by former
Governor Hunt. The project called for a 241-mile-long aqueduct to transport
some 1.2 million acre-feet to the rapidly growing Phoenix and Tucson areas.
When Arizonans introduced a bill in Congress to authorize the CAP, they
encountered stiff opposition from Californians who argued that "Arizona was
attempting to use water that did not belong to the state. This time dissension
centered on conflicting interpretations of the 1922 compact. The differing
claims caused Congress to refuse approval )f the CAP until the two states had
resolved their differences. Congress did not want to invest in a project for
which there might be no water,57
The news bitterly
disappointed Arizonans. While the Upper Basin, California, and Mexico were
moving ahead with their projects, Arizonans had remained stymied. They
believed their only recourse was to appeal once more to the US Supreme Court.
When Arizona filed suit in 1952,
it asked the Court for a judicial apportionment of the Lower Basin's water.
When it had made a similar plea in 1935 the Court had refused to act on the
grounds that no actual harm was being done since the volume of water exceeded
current uses. Seventeen years later the flow still exceeded uses, but this time
Arizona succeeded in persuading the justices that the state would suffer
serious harm if the dispute with California were not resolved.
The subsequent trial proved to be
among the most complicated and hotly contested in Supreme Court history. It
lasted eleven years, required the services of a special master, cost nearly
five million dollars, and resulted in major shifts in position as the two states
jockeyed for advantage. Some 340 witnesses testified and nearly 50 lawyers
participated before the opinion was finally announced on June 3, 1963,
followed by the decree on March 9,1964.
The decision represented a
tremendous victory for Arizona, although the nature of the victory took nearly
everyone by surprise. The Court grounded its opinion not on the compact, but
rather on the Boulder Canyon Act. In that measure, declared the Court in its
five-to-three decision, Congress ''intended to and did create its own
comprehensive scheme for . . . apportionment." According to the justices,
Congress in 1928 had not merely suggested a Lower Basin compact; it had
actually authorized the Secretary of the Interior to use his contract power to
implement a Lower Basin agreement-an agreement "leaving each State its
tributaries" and an agreement in which "Congress decided that a fair division
of the first 7,500,000 acre-feet of. . . mainstream waters would give
4,400,000 acre-feet to California, 2,800,000 acre-feet to Arizona, and 300,000
to Nevada. "58 By awarding Arizona all the water in its tributaries plus 2.8
million acre-feet, the Court gave the state virtually everything that it had
unsuccessfully sought during the negotiations for the 1922 compact.
Californians reacted angrily to
the decision, accusing the Court of misreading the intent of Congress and
eroding the rights of the states. They correctly noted that the decision
represented the first time that the Court had interpreted an act of Congress
as apportioning rights to interstate streams. Water rights had earlier been
determined only by interstate compact or by the Supreme Court itself. Now a
third way had won approval, even though it would have amazed the Congress of
thirty-five years earlier to know what it was supposed to have done.59
Another surprise was the Court's
decision on how future surpluses and shortages would be allocated.
Responsibility would rest with the Secretary of the Interior, who would not
only apportion surpluses and shortages among the states but also among the
users within each state. The latter marked an especially sharp break with
tradition. Since states had always determined the water laws applicable to
their citizens, they had naturally also determined the water rights of those
citizens. But now the Court held that Congress had empowered the Secretary of
the Interior to determine those rights when water had been secured by contract
from federal reclamation projects.
In explaining Congress's authority
over apportionment, the Court pointed to the navigation clause of the
Constitution, but it also hinted that Congress could invoke the "general
welfare" clause to divide the waters of non-navigable as well as navigable
streams.60 The decision thus increased dramatically Congress's authority over
the nations rivers. More importantly from the point of view of Arizonans, it
seemed at long last to pave the way for the Central Arizona Project.
"Arizona
V, California" and the American Indian
The decision in Arizona v.
California proved almost as much a victory for American Indians as for
Arizona. The Indians had long been overlooked in Colorado River matters, but
following World War II they reemerged in the public consciousness as white
Americans grappled uneasily with the social and economic inequities of the
nation's ethnic minorities. When Arizona filed suit in 1952, the federal
government intervened to protect its interests and also to defend the rights
of the Indians living on the twenty-five reservations in the Lower Basin.
Government lawyers asked for sufficient water to maintain not only Indian
reservations, but, in addition, the national forests, parks, recreational
areas; and other governmental holdings. Specifically for the Indians, the
government demanded enough water to develop all the irrigable lands on the
reservations.
The Court upheld the contentions
of the federal attorneys, al-
though in doing so it restricted its
decision to the five reservations along or near the main stream-Chemehuevi,
Cocopah, Yuma, Colorado River, and Fort Mohave-and left to the future the
ultimate fate of the other reservations. Implicitly, however the opinion had
far -reaching implications for Indians elsewhere. Invoking a principle laid
down in the 1908 case of Winters v. United States, the justices held that the
five lower-river reservations "were not limited to land but included waters as
well. . . . It is impossible to believe that when Congress created the great
Colorado River Indian Reservation and when the Executive Department of this
Nation created the other reservations they were unaware that most of the lands
were of the desert kind-hot, scorching sands-and that water from the river
would be essential to the life of the Indian people and to the animals they
hunted and the crops they raised. " In determining the volume of water set
aside, the Court adopted the government's position. "How many Indians there
will be and what their future needs will be can only be guessed. We have
concluded . . . that the only feasible and fair way by which reserved water
for the reservations can be measured is irrigable acreage. "61 Although the
measurement of the right was irrigable acreage, the Court held in a later
supplemental decree that the Indians were not restricted in the uses to which
they could put their water.62 Reason, rather than agriculture, seemed to
emerge as the ultimate test.
The 1963 decision also stipulated
that Indian uses were to be charged against the state in which a reservation
was located. This especially disturbed Arizona where most of the Indian land
was located, but it pleased none of the basin states. In addition, the Court
held that the Indian rights dated from the establishment of a reservation and
was superior to later non-Indian rights, including those rights based on uses
initiated before the Indians had begun diverting water. Thus the Court held
(and in so doing reaffirmed the earlier Winters decision) that the Indian rights
existed whether or not the Indians were actually using water and continued
unimpaired even if the Indians should cease their uses. Since some of the
Indian lands along the lower river had been Set aside as early as 1865 and
none later than 1917, the decision left the Indians in an almost impregnable
legal position.
But the Indians soon learned that
a legal right did not guarantee them water. A decade after the decision, the
Indians were farming
only about half their irrigable acreage. By the later
1970s the amount was closer to 60 percent, but the Indians themselves had
developed less than 8 percent. The remainder was in the hands of non-Indian
leaseholders. The major reasons for this situation were Indian poverty and
non-Indian pressure on the federal government. The Indians were unable to
finance expensive irrigation projects themselves, and Congress was reluctant
to help because of pressure from non-Indians op posed to Indian projects that
would divert water from their cities and farms. The Colorado River Indian
Irrigation Project, for example, was initiated in 1865 but remains uncompleted
primarily because of lack of funds. Not surprisingly, when Indian lands on the
lower river have been developed, it has usually been because tribes have
entered into long-term leasing arrangements with non-Indians. 63
Another disappointment to Indians
on the lower Colorado was the 1983 Supreme Court decision on the extent of the
irrigable acreage on the reservations. For two decades Indians and non-Indians
debated sharply, with the Indians offering one set of figures and the
non-Indians insisting on another and lower set. In 1979 the Supreme Court
turned the dispute over to a special master who three years later recommended
that the Court uphold Indian claims that would permit them to receive some 1.2
million acre-feet or about a third more water than had been awarded nearly
twenty years earlier in Arizona v. California. In a five-to-three decision,
the Court in 1983 rejected the recommendation, explaining that it violated the
spirit of res judicata: "Recalculating the amount of practicably irrigable
acreage runs directly counter to the strong interest in finality in this
case." Besides, the Court observed, more water for the Indians "cannot help
but exacerbate potential water shortage problems" for non-Indians. 64
Elsewhere in the Colorado River
Basin, Indians have sometimes bargained away potential rights in order to obtain
congressional support for projects. The Navajos, the nation's largest tribe,
did so in 1957 when the tribal council, in exchange for congressional approval
of the Navajo Indian Irrigation Project, agreed to waive its priority on the
San Juan River 'and to share water shortages proportionately with non-Indians.
A decade later the Navajos entered into still another agreement which
compromised their claims and became the subject of sharp controversy. In
exchange for the construction of a power plant on the reservation and the jobs
and revenue it would provide, the Navajos agreed to limit their demands to the
water of the upper Colorado to fifty thousand acre-feet. The limitation was
for the life of the power plant (now in operation) or for fifty years,
whichever ended first. Many Navajos subsequently attacked the agreement,
claiming that the federal government failed to fully inform the tribal council
about valuable potential rights that it was surrendering.65 In recent years,
the Navajos have employed engineers and attorneys to prepare a water rights
case against the basin states and the federal government, Some observers
believe that the suit, if filed, will be for at least five million acre-feet.
66 The outcome of such litigation, as well as of suits now being contemplated
by other tribes, is impossible to determine. What is clear is that Indians can
no longer be ignored in future planning for the Colorado River.
The
CAP: Catalyst for Basinwide Development
Arizona v. California proved a
boon-at least legally-for Indians, but Arizonans were the major beneficiaries.
As victors in their decade-old struggle with California, they optimistically
returned to Congress for authorization of the Central Arizona Project.
Approval did not come easily, however. Californians had lost the Supreme Court
battle in 1963,. but their large delegation in the House of Representatives
doggedly held up the Arizona project for five years. Behind the California
resistance was the conviction of state leaders that earlier estimates of
stream flow had been grossly overestimated. Instead of 16.4 million acre-feet
at Lee's Ferry, the runoff, according to more recent estimates, was closer to
fourteen million acre-feet. This meant that under conditions of full
development, the Lower Basin would receive at Lee's Ferry only the
seventy-five million acre-feet over a ten-year period as guaranteed in the
1922 compact. Adjustments for evaporation losses, Indian claims, and the
Mexican treaty obligation could be expected to reduce the available supply
even further.67
But Californians were willing to
bargain. As the price for dropping their opposition to CAP, they demanded a
first priority for California's apportionment of 4.4 million acre-feet. In
effect, Arizonans would have to promise to regulate CAP diversions so that
Californians never received less than that amount. No one missed the point:
California boldly sought to regain some of the ground lost in the 1963 Court
decision.
Arizonans reluctantly acquiesced.
Like Californians, they were uneasy about the adequacy of the water supply,
but their desire for the CAP outweighed their uneasiness. The water diverted
to the CAP, they promised Californians in a provision added to the bill, "shall
be so limited as to assure the availability" of the 4.4 million acre-feet
allocated to California.
Arizona had to mollify more than
California. The concern about the water supply had spread to the Upper Basin.
If the river flow at Lee's Ferry was only about fourteen million acre-feet, as
many now suspected, then the upper states, after fulfilling their obligation
to the Lower Basin, would receive 6.5 million acre-feet, a million acre-feet
less than anticipated in the 1922 compact. Their share could drop even further
after allowing for evaporation losses, the Mexican treaty, and Indian claims.
Worried that such water-supply estimates might later prevent them from obtaining
projects on their own, they tied their fortunes to the Arizona bill. They
agreed to support it but only in exchange for a provision authorizing five
projects for the Upper Basin-Animas-LaPlata, Dolores, Dallas, West Divide, and
San Miguel. This would bring to twenty-one the number of "participating
projects" authorized by Congress for the Upper Basin since l956.~
The maneuvering for concessions
produced a bill authorizing projects for which the water supply was likely to
be inadequate. This possibility prompted the basin states to close ranks behind
another provision directing the Bureau of Reclamation to study ways of bringing
water into the Colorado River Basin from other river systems. Strong
opposition came from environmentalists and especially from leaders in the
Pacific Northwest who knew that Bureau officials viewed the Columbia River as
the probable source of a supplementary supply. Although the opponents failed
to delete the provision, they succeeded in obtaining a ten-year ban on
interbasin studies.
Satisfying the various water
interests in the basin proved to be only one of the obstacles facing the CAP
advocates. In the public's mind, the most controversial aspect of the
legislation involved two proposed dams, one at Marble Canyon just east of the
main gorge of the Grand Canyon, and the other at Bridge Canyon, a short
distance west of Grand Canyon. The principal purpose of the dams would be
to generate hydroelectricity to provide revenue for building the CAP and power
to pump the water into Central Arizona. Both dams would flood scenic areas,
and the reservoir behind Bridge Canyon would inundate portions of Grand Canyon
National Park and Grand Canyon National Monument. Environmentalists waged a
vigorous, national campaign against the dams that was reminiscent of the
struggle over Echo Park. The furor finally forced the deletion of the dams. In
their place was substituted a coal-fired power plant to be built at Page in
northern Arizona. 69
As finally amended, the CAP
legislation emerged as the Colorado River Basin Project Bill. In September
1968, the billion-dollar-plus package of compromises received congressional
approval. 70
Uncertainty over the adequacy of
the water supply for the CAP as well as concern about the project's impact on
the environment resulted in only small annual appropriations for actual
construction. By the early 1 980s the slowdown in the nation's economy had
added to the delay, but by then the coal-fired plant had been built (emitting
air pollutants over Grand Canyon, Zion, Cedar Breaks, and Bryce that caused
environmentalists to regret having given their earlier approval) and
completion of the CAP to the Phoenix area was scheduled for late 1985 and to
the Tucson area for the early l990s. In the Upper Basin, nine of the
twenty-one participating projects had been completed by 1971 and work was
continuing on most of the others in the early l980s. Construction crews on the
ambitious Central Utah Project had by early 1985 finished a tunnel through the
Continental Divide and were under contract to complete the final segments of
the 37-mile-long Strawberry Aqueduct.71
Salinity
Controversy with Mexico
Even before construction had begun
on the CAP or on most Upper Basin projects, the United States had become
embroiled once more in a controversy with Mexico, this time over the quality
of the runoff reaching that country. The 1944 treaty had guaranteed Mexico 1.5
million acre-feet, but the agreement said nothing specific about water
quality. The seriousness of the omission had become apparent even before
ratification and while hearings were being held on the treaty in the US and
Mexico. American negotiators claimed that the Mexican obligation could be met
with water of any quality, while Mexico's diplomats told their senators that
the treaty guaranteed water of "good quality." The issue had arisen because
studies indicated that water reaching Mexico during certain future periods
would consist almost entirely of heavily saline drainage from irrigated fields
in the US Such concern failed to dampen the enthusiasm of treaty advocates who
feared that attempts to clarify the agreement through reservations or
renegotiation would result in no treaty at all. 72 Sixteen years later water
quality emerged as a bitter issue between Mexico and the US
In 1961 the Wellton-Mohawk
Irrigation District, located along the lower Gila River in Arizona, completed
a channel discharging drainage water into the Colorado just above Mexico's
diversion canal. This water was exceptionally heavy in salt content since its
source was an underground basin possessing no outlet and containing water that
had been used and reused over the years until it had declined sharply in
quality. The introduction into the Wellton-Mohawk Valley of a new supply from
the Colorado River in the 1950s had raised the water table and damaged fields,
causing farmers to take the Reclamation Bureau's advice and install wells to
pump the polluted groundwater to the surface and channel it into the main
stream. When this drainage water reached the Colorado in February 1961 it
caused the average annual salinity of the flow crossing the border to nearly
double. Resulting crop losses in Mexico produced a loud outcry. Mexican
officials accused the US of violating the 1944 treaty, demanded compensation
for damages, insisted on water as good as that going to the Imperial Valley,
and threatened to take the issue to the International Court of Justice if the
protests went unheeded. The US denied that the treaty imposed any obligation
"with respect to the quality of the water," but nonetheless took steps to
alleviate the problem. Fresher water was released from American dams and a
channel was constructed in 1965 to divert the Wellton-Mohawk drainage around
the Mexican intake. 73
The situation improved, but both
countries recognized the improvement as temporary. It would be only a matter
of time before evaporation from American reservoirs and completion of projects
already authorized would seriously impair the quality of water crossing the
border. The two nations sought a negotiated settlement, and on August 30, 1973,
they signed an agreement known as Minute 242 of the International Boundary and
Water Commission. 74
Both governments hailed the
agreement as "the permanent and definitive solution of the salinity problem, "
an expression mote of hope than ~f reality. Minute 242 promised Mexico that
most of its water (1.36 million acre-feet) would have an average annual
salinity of no more than 115 parts per million (plus or minus 33 ppm) over the
salinity of the water going to the Imperial Valley. The balance of Mexico's
water (0.14 million acre-feet), which had traditionally been delivered at San
Luis on the Arizona-Sonora land boundary, would continue "with a salinity
substantially the same as that of the waters customarily delivered there." The
agreement obligated the US to assume all the costs necessary to maintain the
agreed-upon salinity levels. In addition, the US pledged to finance the
installation of tile drains in the Mexicali Valley and to fund any other
"rehabilitation" measures necessary to eliminate the "salinity problem" there.
As far as Mexico was concerned,
Minute 242 would represent a permanent and definitive solution" only so long
as water quality remained substantially as it was at that time (approximately
1,000 ppm). The American negotiator of the agreement candidly acknowledged that
unless the US immediately took steps to control salinity within its borders
another dispute with Mexico was inevitable. 75
Congress took the hint. In June
1974 the Colorado River Basin Salinity Control Act received the overwhelming
approval of both House and Senate. The measure authorized upstream salt-control
projects in Nevada, Utah, and Colorado, as well as one of the world's largest
desalination plants near Yuma. The plant is now under construction and scheduled
for completion in 1989 or 1990. Only time will reveal the success or failure
of the efforts. 76
Retrospect
"A river no more is one current
assessment of the Colorado. 77 It is difficult to argue with such an
observation. The dams and aqueducts already in place have permanently altered
the river's appearance and, for more than two decades, have prevented
virtually any water from flowing to the Gulf of California. 78 Completion of
projects already authorized can only further control a river that long ago
ceased to be
wild. The wonder is that the Colorado has been so transformed
in light of the monumental battles over its waters during the last
three-quarters of a century. But those controversies reflect not only the
preciousness of water in an arid land, but more importantly, the almost
frenzied determination of the combatants to use water as quickly as possible
and thereby strengthen their claim to it.
The determination to use rivers
has shaped the major western institutions dealing with water in general and
the Colorado in particular. The law of prior appropriation is an obvious
reverberation, but so too are the Colorado River Compact, the Boulder Canyon
Act, the Mexican treaty, the Upper Basin compact, the 1963 Arizona v.
California decision, and the other actions, which, taken together, have made
the Colorado what it is today. Each represents for its time what was perceived
by its advocates as the best way of dealing with the river. The best way, of
course, did not always mean the most efficient, the most environmentally
sound, or the fairest way to proceed.
Some would now like to undo past
decisions or at least to chart a future less constrained by those actions. In
the Upper Basin are those who advocate rewriting the 1922 compact so as to
reflect more recent estimates of stream flow and to assure themselves enough
water to develop their oil-shale and other mineral reserves. Indians want a
larger share of the river. Environmentalists wish to prevent additional
development and to sidetrack some authorized but uncompleted projects. More
significantly, they would like to change popular attitudes which view every
drop of water reaching the ocean as a drop wasted and which tend to overlook
aesthetic and recreational values associated with uncontrolled streams.
There are, in addition, those
convinced that the only way to proceed is to augment the Colorado River with
water from elsewhere. In 1978 the ten-year moratorium on studies to bring in
water from other basins was renewed for another ten years. When it was first
imposed, most eyes were on the Columbia River, but the emergence of the
environmental movement and the costly pumping requirements projected in
studies of the Columbia have dampened enthusiasm for such a transfer-at least
for the time being.
Ten years ago many experts
predicted that desalination of ocean water would become a major source for
meeting municipal and industrial needs. Since then, declining public support
for nuclear plants and skyrocketing costs of oil for conventional facilities
have seriously undermined this possibility for the foreseeable future. The
energy cost in oil for desalting an acre-foot of ocean water in southern
California is more than six times that for an equivalent volume of Colorado
River water brought in by aqueduct. 79
A byproduct of the soaring cost
of energy has been intensified competition for the relatively cheap power
produced at Hoover Dam. The original power contracts were scheduled to come up
for renewal in 1987. California by the mid-1980s was receiving nearly 65
percent of the electricity, while Arizona and Nevada were getting 17.6 percent
apiece. At first, California insisted that the new contracts reaffirm the old
arrangement, but Arizona and Nevada demanded an equal allocation among the
three states, arguing that they needed the additional electricity, that the
Boulder Canyon Act entitled them to it, and that the dam's location in the two
states warranted a larger share. Californians disagreed, contending that their
decision to take the power provided the revenue to build the dam and that
"it's not right that Nevada and Arizona can come back 50 years later wanting
to take two thirds of the power. "80 Others, especially in the East, objected
to maintaining the current rate structure, arguing that the cost of Hoover
electricity was significantly below that of power elsewhere in the nation and
hence represented an unwarranted governmental subsidy. Anxious to forestall
the growing demands for a rate increase and to avoid a protracted court battle
among themselves, the three lower states in 1984 hammered out a compromise
based upon increasing the capacity of Hoover Dam's generators, the
surrendering by California of a small amount of energy, the obtaining of
additional power from other sources, and the retention of the current basis
for computing the cost of power. (Despite agreement on the last point, the
actual cost of power to the public could be expected to rise significantly as
a result of the changes to Hoover's generators and the obtaining of the
additional power from elsewhere.) With the western states voting almost as a
block, Congress approved the agreement and in late summer the President signed
into law the Hoover Power Plant Act under which the new contracts would not
again come up for renewal until the year 2017.81
Although the dispute over power
has captured recent headlines, concern over the water supply remains a
fundamental issues. Representatives of basin states with incomplete water
projects become nervous during public discussions about possible water
shortages. Receiving much attention is weather modification through
cloud-seeding as a way to augment river supplies. The results of the Bureau of
Reclamation's pilot program in the San Juan mountains of Colorado suggest that
cloud-seeding throughout the Upper Basin mountains would increase runoff by
1.3 million acre-feet a year. Although some find these claims encouraging, the
overall feasibility of weather modification as a significant source of water
must await the completion of current studies.82 Also receiving emphasis are
programs to control more effectively weeds along water courses and to
encourage more widespread use of laser land-leveling technology, drip
irrigation, and sprinkling rather than flooding.
Behind the scramble for water in
years past was not only its obvious necessity for survival in a water-shy
country but also an obsession with growth-an obsession that equated progress
with obtaining enough water to develop the biggest farms and cities and
industries. Many now question that fascination with growth, but even they tend
to forget that water is a finite commodity. Ten years or a hundred years or a
hundred thousand years from now, the world's supply will remain the same. Such
an assertion cannot be made about the world's population or about mankind's
capacity for devising technologies to use-and abuse-the limited water supply.
Put another way, the fate of all natural bodies of water is inseparably tied
to human values about the quality of life and the number of people any part of
the world can properly support. Seen from this perspective, the Colorado River
is a microcosm of the world's water supply. Lessons learned from its past and
policies adopted for its future are of fundamental importance not only for
those dependent on the river, but also for peoples everywhere.
Notes
1. Arthur Powell Davis to J. B. Lippincort, 10 October 1902,
Colorado River Project, 1902-1919, Bureau of Reclamation Papers, Record Group
115, File 187, National Archives.
2. Arthur Powell Davis,
The Single Tax from the Farmer's Standpoint (Minneapolis, 1897); Davis to
Gifford Pinchot, 14 May 1~2, Arthur Powell Davis Papers, Western History
Research Center, University of Wyoming, Laramie; Gene Gressley, "Arthur Powell
Davis, Reclamation, and the West," ~Agricultural History 42 (1968),
pp.241-S7.
3. League of the
Southwest, "Minutes" (Denver, 25-27 August 1920), p.34, copy in Box 477,
Imperial Irrigation District Papers, Imperial, Calif.
4. This agreement was
reached in 1904, three years after water was brought through Mexico to the
Imperial Valley. For the complex developments leading to it, see Norris
Hundley, jr., "The Politics of Reclamation: California, the Federal
Government, and the Origins of the Boulder Canyon Act-A Second Look,"
California Historical Quarterly 52 (1973), pp.300-
304.
5. "Report of the
American Section of the International Water Commission, United States and
Mexico," H. Doc. 359, 71st Cong., Zd sess. (1930), p. 103; Otis Tout, The
First Thirty Years, 1901-1931 (San Diego, 1931), passim; House Committee on
Irrigation of Arid Lands, Hearings on All-American Canal in lmperiai County,
Calif., H. H. 6044, 66th Cong.,1st sess. (1919), pp. 121,139,143,
passim.
6. House Committee on
Irrigation of Arid Lands, Hearings on All-American Canal in Imperial County,
Calif, H. R. 6044, p.116.
7. Imperial Irrigation
District Board of Directors, "Minutes"(13 November 1917), vol.3, p.92; Fl Centro
Progress, 11 November 1917; US Department of the Interior, Seventeenth Annual
Report of the Reclamation Service, 1917-1918 (Washington, D.C., 1918), p.382;
Cong. Rec., 66thCong., 1st sess. (1919), p. 1258.
8. "Report on H.R. 6044
for Relief of Imperial Valley, California," 21 August 1919, p. 13, File
711.1216M/494, Records of the Department of State, National Archives; House
Committee on Irrigation of Arid Lands, Hearings on All-American Canal in
Imperial and Coachella Valleys, Calif, H. R. 6044 and H.R. 11553, 66th Cong.
(1920), pp.94,142, 261, 290, passim.
9. Cong. Rec., 66th
Cong., 2d sess. (1920), p.7360.
10. William L. Kahrl,
Water and Power: The Conflict over Los Angeles' Water Supply in the Owens Valley
(Berkeley and Los Angeles, 1982); Abraham Hoffman, Vision or Villainy: Origins
of the Owens Valley~Los Angeles Water Controversy (College Station, Tex.,
1981).
11. "Problems of
Imperial Valley and Vicinity," S. Doc. 142, 67th Cong., 2d sess. (1922),
pp.282-83.
12. Metropolitan Water
District of Southern California, Metropolitan Water District Act (Los Angeles,
1947).
13. Colorado River
Commission, "Hearings" (Denver, 31 March 1922), p.70, copy in Colorado River
Project, Bureau of Reclamation Papers, Record Group 115, File 032, National
Archives.
14. "Problems of
Imperial Valley and Vicinity, " S. Doc. 142, 67th Cong., 2d sess. (1922), p.
21.
15. Cong. Rec., 67th
Cong., 2d sess. (1922), pp. 5929, 5985.
16. Wyoming v. Colorado,
259 US 419 (1922).
17. Delph Carpenter,
"The Colorado River Compact," p.21, file 1-MI 366, Herbert Hoover Papers,
Hoover Presidential Library, West Branch, Iowa; "Proceedings of the League of
the Southwest, Denver, Colorado, August 25, 26, 27,1920" (typescript 11920]),
pp.287-90, copy in Papers of the Utah State Engineer, Utah State Archives, Sak
Lake City.
18. US Statutes at Large
42 (1921), p.171.
19. See Colorado River
Commission, "Minutes," in Colorado River Project, Bureau of Reclamation Papers,
Record Group 115; file 032, National Archives.
20. Delph Carpenter to
Frank C. Emerson, 7 September 1922, Papers of the Wyoming State Engineer,
Wyoming State Archives, Cheyenne.
21. See, especially,
Colorado River Commission, "Minutes of the Seventeenth Meeting" (15 November
1922), pp.8-12; "Minutes of the Nineteenth Meeting" (19 November 1922), pt. 1,
pp.4, 8; W. S. Norviel, "Report of W. S. Norviel, Colorado River Commissioner,
State of Arizona" 11923], p. 6, file 1-M13 15, Hoover Papers; Richard B.
Sloan, "Pact Criticism Is Largely on What It Does Not Say," Arizona Mining
Journal 6 (15 January 1923), p. 58. For a detailed discussion of the
negotiations, see Norris Hundley, jr., Water and the West: The Colorado River
Compact and the Politics of Water in the American Way (Berkeley and Los
Angeles, 1975), pp.187-214.
22. Colorado River
Commission, "Minutes of the Twenty-first Meeting" (20 November 1922); "Minutes
of the Twenty-second Meeting" (22 November 1922).
23. See, especially, the
minutes of the Colorado River Commission for the eleventh through the
twenty-second meetings; Delph Carpenter to Frank C. Emerson, 19 August 1922,
Papers of the Wyoming State Engineer; "Problems of the Imperial Valley and
Vicinity," S. Doc. 142, pp.2, 5; "Report of the Colorado River Board on the
Boulder Dam Project," H. Doc. 446, 70th Cong., 2d sess. (1928), pp.9,
12.
24. "Colorado River
Compact," H. Doc. 605, 67th Cong., 4th sess. (1923), Article IV For a later
legal analysis of the compact and much more, see Charles J. Meyers, "The
Colorado River," Stanford Law Review 19 (196~ 67), pp.l-75.
25. Colorado River
Commission, "Minutes of the Nineteenth Meeting" (19 November 1922), pt. 2,
p.2; "Minutes of the Twentieth Meeting" (19 November 1922), p.2.
26. Colorado River
Commission, "Minutes of the Twentieth Meeting" (19 November 1922), pp.39-40;
Deiph Carpenter, Report. . . in re Colorado River Compact (n.p. [15 December
1922]), p.7, copy in file 032, Colorado
River Compact, Bureau of Reclamation Papers; "Colorado River Compact,"
Article VII.
27. Colorado River
Commission, "Minutes of the Twenty-seventh Meeting" (24 November 1922), p. 8;
Santa Fe New Mexican, 25 and 28 November 1922.
28. Journal of the
Arizona Senate: Sixth Legislature, 1923, p.22.
29. George W. P. Hunt,
Arizona's Viewpoint on the Colorado River (Phoenix, 17 August 1925), p.1.
30. Hundley, Water and
the West, chap. 8.
31. Delph Carpenter to
R. T. McKisick, 23 December 1924, A. T. Hannett Papers, New Mexico State
Archives, Santa Fe.
32. Journal of the
California Assembly, 1925, p.1031; Journal of the California Senate, 1925,
pp.1135-36.
33. House Committee on
Irrigation and Reclamation, Hearings on Colorado River Basin, H.R. 6251 and
H.R. 9826, 69th Cong., 1st sess. (1926); Senate Committee on Irrigation and
Reclamation, Hearings on Colorado River Basin, S. 728 and S. 1274, 70th Cong.,
1st sess. (1928); Hiram Johnson to C. K. McClatchy, 17 March 1928, Hiram Johnson
Papers, Bancroft Library, University of California, Berkeley.
34. Cong. Rec., 70th
Cong., 2d sess. (1928), pp.382, 389.
35. Ibid., pp.470, 471.
For a close analysis of the congressional discussion of this suggested
agreement, see Norris Hundley, jr., "CIo NQdS: Arizona v. California and the
Boulder Canyon Act: A Reassessment," Western Historical Quarterly 3 (1972),
pp. 17-51.
36. US Statutes at Large
45 (1928), pp.1057-66; 46 (1929), p.3000; Calif Stats. (4 March 1929), chaps.
15-16, pp.37-39.
37. "Hoover Dam
Documents," H. D~c. 717, 80th Cong., 2d sess. (1948), pp.65-69.
38. William L. Kahrl,
ed., The California Water Atlas (Sacramento, 1979), pp.41-42.
39. Arizona v.
California, 283 US 423 (1931).
40. Arizona v.
California, 292 US 341(1934).
41. Arizona v.
California, 298 US 558 (1936).
42. Hundley, Water and
the West, pp.294-95, passim.
43. Ibid., pp.297-98.
For a perceptive analysis of Arizona water politics into the early 1960s, see
Dean B. Mann, The Politics of Water in Arizona (Tucson, 1963).
44. Journal of the
Arizona Senate, 1943, pp.89-90.
45. Journal of the
Arizona Senate, 1944, pp. 3~-39; Journal of the Arizona House, 1944,
p.60.
46. Norris Hundley, jr.,
Dividing the Waters: A Century of Controversy Between the United States and
Mexico (Berkeley and Los Angeles, 1966), chaps.2-4.
47. Ibid., p.147.
48. For a detailed
account of the debate over the treaty in the United States and Mexico, see
ibid., chap. 6. A careful legal analysis of the treaty may be found in Charles
J. Meyers and Richard L. Nob~, "The Colorado
River: The Treaty with Mexico," Stanford Law Review 19 (196~67),
pp.367-419.
49. Cong. Rec., 79th
Cong., 1st sess. (1945), pp. 3491-92; Excelsior (M~xico, D.E), 28 September
1945.
50. US Bureau of
Reclamation, The Colorado River: A Comprehensive Departmental Report on the
Development of the Water Resources of the Colorado River Basin for Review
Prior to Submission ro the Congress (Washington, D.C., 1946), p.21. For
discussion of the Colorado--Big Thompson Project, see Donald B. Cole,
"Transmountain Water Diversion in Colorado," Colorado Magazine 25 (1948), pp.
49-65, 118-33; William Kelly, "Colorado-Big Thompson Initiation, 1933-1938,"
ibid., 34 (1957), pp. 6~74; and Oliver Knight, "Correcting Nature's Error: The
Colorado~}~Big Thompson Project," Agricultural History 30 (1956), pp.
157-69.
51. Jean S.
Breitenstein, "The Upper Colorado River Basin Compact," State Government 22
(1949), pp. 21~16, 225.
52. US Statutes at Large
63 (1949), p.31.
53. Senate Committee on
Interior and Insular Affairs, Hearings on Colorado River Storage Project, 5.
1555, 83d Cong., 2d sess. (1954); Roderick Nash, Wilderness an:l the American
Mind, 3d ed. (New Haven, 1982), pp. 209-19; Dean Mann, Gary D. Weathefford,
and Phillip Nichols, "Legal Political History of Water Resource Development in
the Upper Colorado River Basin," Lake Powell Research Project Bulletin No.4
(Los Angeles, September 1974).
54. For discussion of
the controversy, see the items cited in the preceding note as well as "Echo
Park Controversy Resolved," Living Wilderness 20 (1955-56), pp.23-43; David
Perlman, "Our Winning Fight for Dinosaur," Sie~a Ch£b Bulletin 41(1956),
pp.5-8; Owen Stratton and Phillip Sirotkin, "The Echo Park Controversy, "
Inter-University Case Program No.46 (University, Ala., 1959); Richard B.
Baird, "The Politics of Echo Park and Other Development Projects in the Upper
Colorado River Basin" (Ph. D. diss., University of Illinois, 1960); Elmo
Richardson, Dams, Parks and Politics (Lexington, Ky., 1973).
55. Eliot Porter, The
Place No One Knew: Glen Canyon on the Colorado (San Francisco, 1963); Francois
Leydet, Time and River Flowing: Grand Canyon (San Francisco, 1964); Nash,
Wilderness and the American Mind, p.229; Dean B. Mann, "Conflict and
Coalition: Political Variables Underlying Water Resource Development in the
Upper Colorado River Basin, "Natural Resources Journal 15 (1975), pp.
16~67.
56. US Statutes at Large
76 (1962), p. 96; 78 (1964), p.852.
57. House Committee on
Interior and Insular Affairs, Hearings on the Central Arizona Project, H.R.
1500 and H.R. 1501, 82d Cong., 1st sess. (1951), pp.739-56, passim.
58. Arizona v.
California et al, 373 US 564, 565(1963).
59. See Hundley, "CIo
Nods: Arizona v. California and the Boulder Canyon Act," pp.17-51.
60. Arizona v.
California et al, 373 US 587(1963).
61. Ibid., 373 US 596,
598-601(1963). See also Winters v. United States, 207 US 564(1908); and Norris
Hundley, jr., "The 'Winters' De~ision and Indian Water Rights: A Mystery
Reexamined," Western Historical Quarterly 13 (1982), PP. 17-42.
62. Arizona v.
California et al., 439 US 422 (1979).
63. Norris Hundley, jr.,
"The Dark and Bloody Ground of Indian Water Rights: Confusion Elevated to
Principle," Western Historical Quarterly 9 (1978), pp.478-79; Acting Assistant
Director, Phoenix Area Office, US Bureau of Indian Affairs, to author, 18
January 1983.
64. Arizona v.
California, 51 LW 4329 (1983); Los Angeles Times, 19 March 1982 and 31 March
1983; Acting Assistant Director, Phoenix Area Office, US Bureau of Indian
Affairs, to author, 18 January 1983.
65. Monroe B. Price and
Gary D. Weatherford, "Indian Water Rights in Theory and Practice: Navajo
Experience in the Colorado River Basin," Law and Contemporary Problems 40
(1976), pp.108-31; James P. Merchant and David M. Domhusch, The Importance of
Water Supply to Indian Economic Development (prepared for the Office of Water
Research and Technology, US Dept. of the Interior, 1977), pp.64-65; interviews
with members of the Navajo Tribal Council, 2 May 1977
66. Metropolitan Water
District of Southern California, INFO (Los Angeles, October 1977),p. 27.
67. House Committee on
Interior and Insular Affairs, Hearings on Lower Colorado River Basin Project,
H. H. 4671 and Similar Bills, 89thCong. (1965-1966); Hearings on Colorado River
Basin Project, 90th Cong., 1st sess. (1967);
Hearings on Colorado River Basin Project, Part II, 90th Cong., 2d
sess. (1968). For an advocate's inside view of the struggle for the CAP, see
Rich Johnson, The Central Arizona Project, 1918-1968 (Tucson,
1977).
68. Ibid. For a
perceptive analysis of the bargaining for projects, see Helen M. Ingrain,
Patterns of Politics in Water Resource Development: A Case Study of New
Mexico's Role in the Colorado River Basin Bill (Albuquerque, 1969).
69. Nash, Wilderness and
the American Mind, pp.227-35; Congressional Quarterly Fact Sheet (1 November
1969), pp.3019-31.
70. US Statutes at Large
82 (1968), p.885.
71. Upper Colorado River
Commission, Thirty-second Annual Report (Salt Lake City, 30 September 1980),
pp.47-56; Central Utah Water Conservancy District, Annual Report, 1981 (Salt
Lake City, 1982); interview with Vernon Valantine of the Colorado River Board
of California, 15 May 1984, and 21 February 1983; Los Angeles Times, 19 February
1985. For concern about the air pollution caused by the coal-fired plant, see
Los Angeles Times, 9 February 1975; Alfred Runte, National Parks: The American
Experience (Lincoln, 1979), p.185.
72. Senate Committee on
Foreign Relations, Hearings on Water Treaty with Mexico, 79th Cong., 1st sess.
(1945), pp.323-38,1109, 1704, passim; Hundley, Dividing the Waters, pp.153-59,
passim; Hundley, 'The Colorado Waters Dispute," Foreign Affairs 42 (1963-64),
pp.495-500. For a Mexican perspective that, although polemical in outlook,
reproduces many Mexican documents, see Ernesto Enriquez Coyro, El Tratado
entre Mexico y los Estados Unidos de Ame~ca sol're Rtos internationales: Una
Lucha Nacion a 1 de Noventa An~os, 2 vols. (Mexico, D.F., 1975).
73. Joseph E Friedkin,
Commissioner of the US Section, International Boundary and Water Commission,
to the author, 6 June 1983; Hundley, Dividing the Waters, pp.172-80.
74. For a copy of the
English and Spanish versions of Minute 242, see the January 1975 issue of
National Resources Journal, pp.2-9. This issue also contains a valuable
collection of articles which analyze the salinity problem and Minute
242.
75. El Urnversal
(Mexico, D.F.), 30 August 1973; House Committee on Interior and Insular
Affairs, Hearings on Colorado River Basin Salinity Control, H.R. 12165, 93d
Cong., 2d sess. (1974), p.107; Myron Holburt, "International Problems of the
Colorado River," Natural Resources Journal iS (1975), pp.21-22.
76. US Statutes at Large
88(1974), p.266; US Section, International Boundary and Water Commission,
Joint Projects of the United States and Mexico
through the International Boundary and Water Commission, 1983 (n.
p., [1982]), p. 30; Hundley, Water and the West, pp. 3 1&~1 7; interview
with Vernon Valantine of the Colorado River Board of California, 15 May 1984.
See, also, "Symposium on Anticipating Transboundary Resource Needs and
issues in the U. S.-Mexico Border Region to the Year 2000," Natural Resources
Journal 22 (October 1982), passim.
77. Philip L. Fradkin,
A River No More: The Colorado River and the West (New York, 1981),
78. Metropolitan Water
District, INFO, p.30.
79. Ibid., p.21.
80. Los Angeles Times,
9 November 1982.
81. Federal Register,
9 May 1983, pp. 20872~89; memo from MWD Director of Contracts Administration
to Assistant General Manager David N. Kennedy, 19 May 1983, copy in possession
of author; interview with Vernon Valantine of the Colorado River Board of
California, 1 July 1983, iS May 1984, and 21 February 1985; Colorado River
Association, CRA Newsletter, 19, no.3 (1984), p.3; Los Angeles Times, 9 August
1984.
82. Colorado River Board
of California, Annual Report, 1979 (Los Angeles, 1980), p. 12; Metropolitan
Water District, INFO, pp.23-24.
PUBLISHED BY THE UNIVERSITY OF NEW MEXICO PRESS, 1996
With permission by the author and publisher
The West Against Itself: The Colorado River - An Institutional History
by Norris Hundley, Jr.
"River of Controversy" might have been the name if the Spanish explorers could have foreseen the many bitter conflicts over the Colorado. But their attention focused naturally on what first caught their eye, and they christened the river with a name reflecting the ruddy color produced by the enormous quantities of silt-more such sediment than carried by all but a handful of the world's streams. Like the Indians who knew the Colorado by other names and had relied on its waters since time immemorial, the Spaniards, a people from a water-shy country, recognized at once the river's critical importance to the area, although they could only guess at the size of the drainage basin-practically the entire lower left-hand corner of the present United States.
From its headwaters high in the Wind River Mountains of Wyoming, the Colorado meanders 1,400 miles and is the sole dependable water supply for 244,000 square miles, an area embracing parts of seven western states (Wyoming, Colorado, Utah, New Mexico, Nevada, Arizona, California) and Mexico. Though the watershed is vast, the Colorado is not a heavy flowing stream, ranking about sixth among the nation's rivers and having an average annual volume of less than fifteen million acre-feet. This is only a thirty-third that of the Mississippi and a twelfth that of the Columbia, but this modest flow became in the twentieth century the most disputed body of water
in the country and probably in the world. The controversies extended far beyond the basin and involved great population centers that have built or are seeking to build aqueducts hundreds of miles long to develop the farms, cities, and industries of Denver and eastern Colorado, Salt Lake City and western Utah, Albuquerque and central New Mexico, and especially the vast megalopolis of Southern California stretching from north of Los Angeles to the Mexican border. Over the years the drive for water significantly altered the
appearance and quality of the Colorado's flow, forced domestic and international agreements that sometimes harmonized and just as often exacerbated relations among water users, and created a legacy of laws, court decisions, and water-use patterns that continue to influence the lives of millions of people in the United States and Mexico.
Contents
Genesis of an Idea: Arthur Powell Davis
Imperial Valley and the All-American Canal
Enter Los Angeles
A Six-State Pact
Arizona Overwhelmed: The Boulder Canyon Act
"Arizona V. California: Round One"
The Mexican Water Treaty
Upper Basin Compact: Harbinger of Development
"Arizona V. California: Round Two"
"Arizona V, California" and the American Indian
The CAP: Catalyst for Basinwide Development
Salinity Controversy with Mexico
Retrospect
Notes
Genesis of an Idea: Arthur Powell Davis
For hundreds of thousands of
years, the Colorado and its network of tributaries flowed without interruption
to the sea. For a much shorter span, but one still measured in thousands of
years, societies made their homes along the watercourses without appreciably
changing either river or basin. The coming of the Spaniards in the sixteenth
century, Mexico's short hegemony nearly three hundred years later, and the
American conquest in the mid-nineteenth century scarcely altered the
waterscape. The twentieth century, however, brought dramatic change as
hundreds of thousands of newcomers poured into the Southwest and turned their
energies toward developing the region's scarce water supplies.
Among the earliest advocates of
large-scale development of the Colorado River was Arthur Powell Davis, nephew
of the famous explorer and geologist John Wesley Powell. Davis was not the first
to advance a sweeping plan, but as a prominent engineer in the U.S. Geological
Survey and later in the Reclamation Service, he possessed the skills and
connections to draw public attention to the proposal that he first unveiled in
1902. What he sought, he told his fellow engineers, was "the gradual
comprehensive development of the Colorado River by a series of large storage
reservoirs." The keystone was to be a dam on the lower river built "as high as
appears practicable from the local conditions."1
Davis was driven by more than an
engineer's natural desire to be associated with one of the world's great
technological feats. He shared with Henry George and other reformers of the
day a concern about the demoralizing effects of land monopoly, the end of the
frontier, and urban crime, poverty, and unemployment. While many Americans
pointed with pride to growing cities and industries, Davis worried about the
seemingly precipitous decline in public morality and advocated a return to the
values associated with the independent yeoman farmer so idealized by Thomas
Jefferson.2 To Davis, revitalization of the nation's moral fiber lay in
getting more people to work the soil, and a major means to that end would be
the reclamation of western lands mistakenly considered useless by many because
of lack of water. The task, he recognized, would be enormous, so great and so
expensive that only the federal government could overcome the obstacles and
provide the necessary overall planning. And the place to begin, he believed,
was the Colorado River. "I . . . considered problems in all of the Western
States," he later recalled, "but there [was] . . . none which. . . excited my
interest and imagination and ambition so much as the development of the
Colorado River Basin. "3
Davis found a vehicle for his
ideas in the newly created Reclamation Service, but lack of funds and
mercurial public support prevented headway for nearly two decades. Then
Californians, first in the Imperial Valley and later in Los Angeles and
eventually throughout Southern California, endorsed his plans and set in
motion a series of events that profoundly affected the Colorado River Basin.
Imperial
Valley and the All-American Canal
Settlers in California's Imperial
Valley, an arid but enormously fertile area of 600,000 acres just north of the
Mexican border, only slowly became interested in Davis's ambitious scheme.
Rather than dams, they wanted a canal-an "All-American Canal," as they called
it-that would free them from their dependence on Mexico and assure them enough
water to develop their lands. Because of a ridge of sandhills separating the
valley from the Colorado, water had been brought in by diverting it south of
the border through an old overflow channel of the river. The price exacted by
Mexico for this privilege was stiff-the right to take up to half of the
diverted water.4
At first the price seemed
tolerable. Mexican development proceeded slowly while that in the Imperial
Valley boomed following the introduction of water in 1901. By 1916 more than
300,000 acres were under cultivation, and valley leaders had plans to expand
production even further.5 But by this time the entire river would occasionally
be diverted, especially during the critical low-flow months of summer, and
even taking the whole stream often produced insufficient water. While Mexico's
water needs remained considerably less than those of US farmers, the reduced
flow crossing the line still meant rationing of water in the valley. Alarmed
by the threat to their crops and convinced that the situation would
deteriorate as Mexico expanded its own agriculture, valley farmers began
demanding a delivery system wholly in the US Their clamor grew louder in
response to unsettled conditions below the border created by the Mexican
Revolution of 1910, refusal of Mexican landowners to share the cost of levees
to protect the delivery system, and the duties imposed on equipment used in
protective work below the line. Especially galling to valley farmers was the
disclosure that the largest single landholder on the Mexican side was a
syndicate controlled by Los Angeles businessmen, the most prominent of whom
was Harry Chandler, publisher of the Los Angeles Times. "These Mexican . . .
lands," complained valley residents, "menace us like a great sponge, which
threatens to absorb more and more water, until such time as they will take all
of the natural flow of the river. "6
Unable to finance a new canal by
themselves, valley farmers in 1917 turned to Washington for help. Operating
through the Imperial Irrigation District, a powerful and well-organized public
agency in charge of the valley's water system, they persuaded the Secretary of
the Interior to investigate the feasibility of an All-American Canal and two
years later got Congressman William Kettner to introduce a bill authorizing
construction of the aqueduct.7
The Kettner Bill immediately
attracted the attention of Arthur Powell Davis, who saw it as an opportunity
to lobby for his own river development plans. The canal, he told the bill's
advocates, would be impractical by itself. It would be at the mercy of the
floods that annually menaced settlements along the river and from 1905 to 1907
had actually broken into the Imperial Valley, destroying fields and homes and
creating the Salton Sea. But "if we had complete storage," he observed, "the
flood menace would be removed." To Davis the issue was clear-cut: "The
Imperial Valley problem . . is inseparably linked with the problem of
water storage in the Colorado Basin as a whole. "8
Strong endorsements of Davis's
position came from the engineering team sent by the Secretary of the Interior
to investigate the canal's feasibility, from groups supporting the
back-to-land movement, and from the League of the Southwest, a highly vocal
booster organization representing scores of businesses and local governments.
Imperial Valley leaders at first resisted tying the canal to a more grandiose
and complicated project, but finally they surrendered to the force of logic
and to the pressure from Davis and others. In 1920 they joined with Davis to
promote passage of the Kincaid Act, which authorized the government to secure
needed field data about the canal and storage sites.9 These events did
not go unnoticed elsewhere.
Enter Los Angeles
Among those following closely the
maneuvering in Washington were Los Angeles officials, especially blunt-spoken
William Mulholland, chief of the Bureau of Water Works and Supply, and E. F.
Scattergood, head of the Bureau of Power and Light. They had spent their lives
working to ensure that the city had all the water and electricity that it
needed. For a community that had grown by nearly 600 percent during the two
decades after 1900, this had been no small accomplishment. The city had fought
successfully to gain control of the Los Angeles River, the major local supply,
and in 1913 had completed a 233-mile-long aqueduct to the Owens River. 10 By
1920 as the Los Angeles population approached 600,000, Mulholland and
Scattergood were turning their attention to the Colorado.
Of concern to city leaders at
first was electricity rather than water. The aqueduct to the Owens Valley
seemed to guarantee a plentiful water supply, but experts predicted a power
shortage within three to five years. Mulholland and Scattergood warned that
local plant construction would only temporarily postpone, not prevent, a
shortage. They advocated as a solution Arthur Powell Davis's proposal for a
dam on the Colorado River. Told that a hydroelectric plant at the dam could
provide the city with enough power for "all future needs," the city council
required little persuasion. In August 1920, it endorsed Davis's plan and
boldly proclaimed the city's intention to obtain power "direct from the
Colorado River. "11
The Los Angeles action delighted
Davis and his new allies from the Imperial Valley, but another city decision a
few years later pleased them even more. In 1923 a dry cycle prompted Los Angeles
to look to the Colorado for water as well as electricity. Such a venture would
require special diversion dams, an aqueduct even longer than the one to Owens
Valley, and pumping stations to raise water over the mountains separating the
city from the river. The undertaking was too costly for the city alone. In 1924
Los Angeles leaders negotiated with nearby communities for the creation of the
Metropolitan Water District of Southern California (MWD). Three years later
the state legislature approved the new agency and authorized it "to provide a
supplemental water supply to the coastal plain of Southern California. "12
These steps placed Los Angeles and the twenty-six other agencies that eventually
joined MWD squarely alongside Davis and the Imperial Valley in their quest to
develop the Colorado River.
Upper
Basin Alarm and the Colorado River Compact
Long before Los Angeles entered
into an alliance with MWD, leaders in the Colorado River Basin outside of
California had become troubled. All recognized that the future development of
their areas depended heavily on the Colorado, and they watched uneasily the
advances being made by a state that contributed the least amount of runoff to
the river.
Particularly disturbed were
residents in the upper portion of the basin where the growing season was
shorter and the lands less easily watered than in California or Arizona. The
upper states wanted reclamation projects of their own, including some that
would benefit areas outside the basin, especially in western Utah and eastern
Colorado. Denver, for example, like Los Angeles, lay outside the basin and had
grown rapidly if not as spectacularly as the southern California city. From a
population of 134,000 in 1900, it had nearly doubled in size by 1920 and was
threatening to precipitate a water war with its neighbors. "The most serious
problem that confronts us at this time," warned a Denver official, "is the
future water supply. Unless a construction program is formulated . . . that
will bring to Denver and the agricultural communities surrounding it more
water . . . , any great future growth in Denver's population must be made at
the expense of the agricultural communities surrounding it."13
Heightening such concern
throughout the Upper Basin were a series of events in early 1922. The first
occurred in February when the Interior Department issued the long-awaited
study called for by the Kincaid Act. Known as the Fall-Davis Report-named for
Secretary of the Interior Albert Fall and Arthur Powell Davis; who was now
head of the Reclamation Bureau-it recommended construction of an All-American
Canal, a storage reservoir "at or near Boulder Canyon," and the development of
hydroelectric power to repay the cost of the dam. 14 The next development that
disconcerted the upper states took place in April, when Congressman Phil Swing
from the Imperial Valley and Senator Hiram Johnson of California introduced a
bill to implement the report's recommendations. This Boulder Canyon, or Swing-
Johnson, bill met with immediate hostility from Upper Basin representative,
who mounted a vigorous campaign against it. 15
Still another cause for alarm in
the upper states occurred two months later. This involved western water law,
specifically the doctrine of prior appropriation which gave legal entitlement
to the first person using water-"first in time, first in right. "This principle
was recognized within each basin state, but uncertainty existed over whether
it applied to users in two or more states on a common stream. In June 1922 the
US Supreme Court, in Wyoming v. Colorado, eliminated all doubt by announcing
that the rule of priority applied regardless of state lines. 16 Now even the
law seemed to favor faster-growing states like California. Upper Basin leaders
responded to the decision by reaffirming adamant opposition to all reclamation
on the lower Colorado until their own interests were safeguarded.
The leader in defining those
interests and in devising a protective strategy was Delph Carpenter of
Colorado. A brilliant and prominent attorney with years of experience in water
litigation, he had long advocated compacts or treaties to resolve interstate
disputes. Although no states had demonstrated the practicality of his idea by
apportioning water among themselves, Carpenter believed that the usual
recourse to litigation was a mistake-it was too costly, too time-consuming,
and invariably it created more issues than it resolved. His participation in
Colorado's lengthy Supreme Court battle with Wyoming had reinforced these
views as had the claims of federal attorneys that the US owned all the
unappropriated waters in the West's streams. If the states did not put their
houses in order, he feared that the federal government might do it for them,
thus "weakening . . . state autonomy on all rivers. "17
In 1920, at a meeting of the
League of the Southwest, Carpenter called for a compact covering the Colorado
River. It was an idea whose time had come. The League enthusiastically
endorsed his proposal, as did the legislatures of all the basin states. In
August 1921 Congress consented to the negotiation of a compact. 18 Because the
river was an international stream and considered navigable, the federal
government sent to the negotiations its own representative, the highly
respected Secretary of Commerce, Herbert Hoover. The delegates, now dubbed the
Colorado River Commission, invited Hoover to chair the sessions which began in
January 1922.
The commissioners spent most of
1922 in fruitless bargaining. They wrangled incessantly, each trying to ensure
his state all the water it might need while refusing a similar concession to
the others. Finally convinced that they would be unable to settle on a specific
volume of water for each state, they decided to concentrate instead on
apportioning the river between the upper and lower sections of the basin. 19
But even that decision was more easily reached than implemented. It rested on
the assumption that the needs of groups of states could be pegged more easily
than those of individual states, and it ignored the possibility of serious
conflicts among the states within each basin. Nonetheless, it set the stage
for the final round of talks scheduled for November 1922 in New Mexico.
Great pressure for a settlement
permeated the negotiations which began on November 9 at Bishop's Lodge, a posh
resort near Santa Fe. Californians were driven by their desire for the
Swing-Johnson Bill, which had been bottled up in Congress by Upper Basin
representatives in control of key reclamation committees. Upper Basin leaders
feared that if they did not negotiate a water supply for themselves, a
disastrous flood on the lower river might stampede Congress into giving
Californians the legislation that they wanted. "We simply must use every
endeavor to bring about a compact . . ," pleaded Delph Carpenter, "otherwise .
. . we may never again have a like opportunity. "20
Carpenter had taken the lead in
seeking a settlement by circulating, prior to the Santa Fe meeting, a draft
proposal allocating the Colorado's waters equally to the Upper and Lower basins.
He established the demarcation point between the basins at Lee's Ferry, an old
river-crossing station located in northern Arizona's canyon lands not far from
the Utah border. While the boundary thus placed parts of several states in
both basins, the Upper Basin consisted mainly of Wyoming, Colorado, Utah, and
New Mexico and the Lower Basin of Arizona, California, and Nevada.
Discussion of Carpenter's proposal
began on an ominous note. Most delegates considered it appealing, but W. S.
Norviel of Arizona strongly objected and very nearly brought the proceedings
to an end. He sharply criticized the plan for charging the Lower Basin for the
water in its tributaries. Though estimates varied, most experts believed those
tributaries produced a significant runoff-some two to three million
acre-feet-with virtually all of it coming from Arizona streams. Norvie~
demanded for the Lower Basin all the water in the tributaries, in addition to
half the river's flow as measured at Lee's Ferry. He would have preferred that
Arizona's tributaries be given specifically to the state, but recognized that
the decision to apportion water to basins instead of individual states
precluded such an allocation. Besides, he felt Arizona had nothing to fear
from the other Lower Basin state~ Nevada and California. Nevada's water
requests had always been minimal, while California's "ultimate development,"
he believed, was ''definitely well-known'' and posed no threat to Arizona. 21
For days Norviel tenaciously
defended his counterproposal, as first one delegate and then another advanced
alternatives and sought to bring the conflicting parties together. His
intransigence gradually gave way as he found himself standing alone against
the pressure for a compromise settlement. The agreement to which he and the
others finally gave their approval foresaw the delivery of 7.5 million
acre-feet per year to each basin. Since the bulk of the water originated in
the Upper Basin, however, the compact required the upper states to deliver
seventy-five million acre-feet at Lee's Ferry every ten years. The ten-year
provision allowed the Upper Basin to take advantage of the sometimes severe
fluctuations in river flow. In addition to the basic allocation to each basin,
the lower states could increase their apportionment by a million acre-feet.
This provision reflected Norviel's insistence that the Lower Basin receive
compensation for the water in its tributaries. The amount was considerably
less than he had sought but high enough to win his grudging approval of the
agreement. 22
The negotiators grounded their
water-allocation formula on the Reclamation Bureau's assumption that the
average annual flow of the Colorado River at Lee's Ferry was 16.4 million
acre-feet. There was no gauging station at Lee's Ferry and this estimate
derived from measurements made hundreds of miles downstream at Yuma. It also
ignored years of unusually low flow prior to 1905. Nonetheless, the strong
desire for a settlement caused no one to challenge the accuracy of the
Bureau's estimate-an estimate that indicated 1.4 million acre-feet remained in
the main stream as surplus for later allocation. 23
The few remaining issues were
dealt with quickly. The delegates easily agreed to give highest priority to
water use for "agricultural and domestic purposes." Hydroelectric power came
in for a lesser priority and navigation was made "subservient" to all other
uses.24 As for a possible future treaty with Mexico, the delegates concluded
that any such obligation should be met with surplus water, and if that proved
insufficient, then the two basins should share equally the burden. This
provision reflected a desire to cover an important contingency rather than
sympathy for people in Mexico. "We do not believe they ever had any rights,"
observed Herbert Hoover. 25 The Indians in the Colorado River Basin hardly
fared better. Their rights were considered "negligible" and were dealt with
perfunctorily in what Hoover called the "wild Indian article": "Nothing in
this compact shall be construed as affecting the obligations of the United
States of America to Indian tribes. "26
On Friday, November 24,1922, after
fifteen days of bargaining, the delegates reached agreement on the compact.
They adjourned to Santa Fe where formal signing took place in the Palace of
the Governors amid much fanfare and self-congratulation. 27
A Six-State Pact
The euphoria at Santa Fe was short
lived. Within five months every state had ratified the compact except Arizona,
but Arizonaís refusal threatened to scuttle the enterprise since only
unanimous approval would make the pact effective. Norviel had returned home to
find a new governor in office whose views and those of his closest advisers
were hostile to the agreement. "Arizona cannot afford to plunge blindly into a
contract that may be unfair to her," Governor George W. P. Hunt cautioned the
state legislature.28 When studies completed a short time later suggested that
Arizona might need the entire Lower Basin allotment to develop lands in the
central part of the state, Hunt's position hardened. To him, opposition to the
compact now became a test of state loyalty. He received strong support from
private utility firms, which were alarmed that the pact would pave the way for
the Boulder Canyon legislation and the construction of competing public power
facilities. Powerful mining interests chorused their opposition because a
public power plant would operate tax free. Since mining companies were
shouldering nearly half the Arizona tax load, they would obtain no relief if
the power plants to be built along the lower river and partially in Arizona
were tax exempt.
But the major concern was water.
Hunt believed the compact's "first fundamental error" was its failure to make
allocations to individual states.29 By suspending the law of prior appropriation
between the basins, the compact would protect the Upper Basin from California;
but it did nothing to safeguard Arizona from California. The principle of
priority would still prevail among the Lower Basin states. This posed no
problem for Nevada whose small needs were readily conceded by Arizona and
California, but Arizonans became extremely cautious and then alarmed as they
discovered potential uses for water and hydroelectricity not anticipated
earlier. That alarm intensified when Californians, especially those associated
with the Metropolitan Water District, made similar discoveries. Arizonans
found additional reason for concern in the promise of Upper Basin leaders to
withdraw their opposition to the Boulder Canyon Bill once the compact was in
force. Enactment of the Boulder Canyon legislation would immeasurably aid
California by authorizing the All-American Canal and especially the high dam
that would regulate the river and permit the MWD to build its own aqueduct and
transmission lines. Arizonans, on the other hand, saw virtually nothing for
themselves in the measure. A dam in Boulder Canyon would benefit few Arizona
lands unless other expensive works were also constructed-works viewed by most
experts at the time as economically unfeasible and for which there was no
enthusiasm in Congress. Arizonans also worried about what they called the
"Mexican threat." A regulated river would enable Mexico to expand its
agriculture, and a future treaty might recognize the increased water uses. Put
simply, Arizonans feared there would be little water remaining for them after
the Upper Basin, California, and Mexico got what they wanted. Those fears,
together with Arizona s own ambitious plans for the Colorado, translated soon
into implacable opposition to both the compact and the Boulder Canyon
legislation. 30
Arizona's refusal to ratify the
compact prompted the other basin states to reassess their earlier insistence
on approval by all seven basin states. Delph Carpenter took the lead in
campaigning vigorously for a six-state agreement. Some Upper Basin leaders
worried about endorsing a compact to which Arizona would not be a party, but
Carpenter persuaded them that no practical alternative existed. Because
California and Arizona were constantly reevaluating their earlier water needs
as too small, it would be folly to attempt to renegotiate the pact and
allocate water to each state, as Arizonans were insisting. As a nonsigner,
Arizona might try to develop projects that would encroach on the Upper Basin
allocation, but success in such a venture would require Washington's approval.
The federal government had reserved all the possible dam sites along Arizona's
canyons and was unlikely to release any of them without approval of the other
basin states. "If the compact were agreed to as binding upon the United States
and the six states which have already ratified," reasoned Carpenter, "it would
in large measure serve the desired purpose. . . .î 31
Carpenter's logic proved
persuasive. By March 1925 all the upper states and Nevada in the Lower Basin
had approved the six-state arrangement. That left only California.
Californians favored the reduced requirement for ratification, but only if
through it they could absolutely assure themselves the Boulder Canyon Project.
Earlier at Santa Fe, they had sought to have such an assurance written into
the compact itself, but that had been considered inappropriate. Now, grown
weary of waiting for congressional action, they sought that assurance through
a different approach. Assemblyman A. C. Finney of the Imperial Valley
introduced a resolution in the state legislature making California's approval
of the six-state pact dependent upon construction of a high dam on the lower
river. Passage of the resolution in April 1925 shifted the major battlefield
over the Co~Colorado River to Congress.32
Arizona
Overwhelmed: The Boulder Canyon Act
In late 1925, when Phil Swing and
Hiram Johnson reintroduced in Congress their Boulder Canyon legislation, they
included the compact among its provisions. In this way, congressional approval
of the compact would mean authorization of lower-river development as well.
Swing and Johnson subsequently added other inducements calculated to broaden
support-royalties on power to be divided equally between Arizona and Nevada
(in lieu of the taxes that those states would collect if the project were built
by private capital) and funds authorizing the. investigation of possible
reclamation projects in every basin state except California. 33
Congress at first balked at
the measure1 bowing not only to Arizona's protests but also to those of
easterners and others unsympathetic to expensive reclamation and public power
projects. In addition, many legislators felt that Arizona and California
should be given more time to resolve their differences and to negotiate a
Lower Basin apportionment of water. Such opposition lessened over the next two
years as both states persisted in their refusal to reach agreement and as
Californians launched~ a campaign dramatically highlighting the flood dangers
and water and power needs along the lower river.
Upper Basin leaders were
pleased that the Boulder Canyon Bill included the compact among its
provisions, but their earlier anxieties returned as the prolonged debates on
the measure rekindled their fears of both California and Arizona and
reawakened their earlier preference for a seven-state compact. They finally
agreed to support the bill, but only if California would promise to limit its
use of Colorado River water. Without such a limitation, California could be
expected to increase its uses until little remained for Arizona. That state,
in turn, would obviously do everything possible to develop projects of its
own-projects that would take water meant for the Upper Basin. Arizona would
have to overcome serious economic and political obstacles to build such
projects, but so long as the state possessed even a remote chance of doing so,
the Upper Basin felt threatened. If, on the other hand, California would li~t
itself and leave a significant volume of Lower Basin water for Arizona, then
the threat to the Upper Basin would be reduced considerably. "The States of
the upper-basin much prefer a "seven-state compact," observed a Colorado
congressman, "but they desire a compact of some kind, and with a provision under
which one of the lower basin States-California- practically steps into the
position of guarantor, so that the upper-basin [states] would be reasonably
assured . . . that they could go ahead safely in developing their irrigation
enterprises. "34
California agreed, but only
reluctantly and after much haggling over the precise restriction on its uses.
Congress finally settled on 4.4 million acre-feet plus no more than half of
any surplus water unapportioned by the compact. Congress then went further in
trying to harmonize basin rivalries by adding still another provision to the
Boulder Canyon Bill giving prior approval to a Lower Basin pact. The suggested
agreement would apportion 0.3 million acre-feet to Nevada, 4.4 million acre-feet
and half the surplus to California, and 2.8 million acre-feet plus half the
surplus to Arizona. In addition, all the waters of the Gila (Arizona's principal
Colorado tributary) would go to Arizona and be exempted from any future
Mexican treaty. Many objected to the proposal as an infringement on states'
rights, but its author disagreed, insisting that it was merely a suggestion
and "not the request of the Congress." "If California and Nevada and Arizona
do not like this agreement," he explained, "they do not have to approve it.
"35 With that assurance, the proposal won adoption and paved the way for a
final vote on the bill.
Over Arizona's continued
vigorous objections, Congress approved the Boulder Canyon Bill in December
1928. Two months later the California legislature agreed to the limitation
imposed by Congress and on June 25, 1929, President Herbert Hoover declared
the act effective.36
ìArizona
V. California: Round One"
Enactment of the Boulder
Canyon legislation meant approval of the Colorado River Compact and
authorization of the All-American Canal and a high dam on the lower river.
Under the terms of the new law, construction of the dam could not begin until
the federal government had obtained contracts for the hydroelectric power
needed to pay for the project. Since Nevada had no market for Boulder Canyon
power and Arizona had neither a market nor a desire for one, Californians in
1930 obligated themselves to purchase all the electricity and thereby
underwrite the cost of the dam and power plant. The contracts permitted the
federal government to draw back 36 percent of the power for use in Arizona and
Nevada any time during the fifty years required to pay for the project, but
until the two states asked for power, California agencies had to take all of
it.37
The Great Depression of the
1930s slowed construction, hut in 1935 Hoover Dam was completed (in more
suitable Black Canyon, rather than in Boulder Canyon as originally planned)
and a year later hydroelectric power reached southern California communities.
In June 1941 the Metropolitan Water District of Southern California began
delivering water to the coastal plain, and the next Imperial Valley residents
received their first supplies through the All-American Canal. Californians
delighted in these developments, which during the next three decades flowed
Los Angeles to grow to three million inhabitants and the four coastal counties
to attract a population in excess of ten million.35
Arizonans looked angrily on
California's rapid growth. Their state also grew during the same period, but
the increases in people and economic development paled in comparison to those
of California which they accused of taking water that rightly belonged to them.
At first Arizonans returned to the negotiating table and tried to hammer out
a Lower Basin compact with California, but the two states repeatedly failed to
harmonize their differences and neither state was satisfied with the pact
suggested by Congress in the Boulder Canyon Act.
When bargaining collapsed,
Arizonans turned to the US Supreme Court for help. In 1930 in the first of a
series of Arizona v. California cases, they asked the courts to declare
unconstitutional the Boulder Canyon Act because it violated Arizona's
"quasi-sovereign rights" by authorizing construction of a dam partially in
Arizona without the state's permission. Congress's claim that it had acted to
improve navigation was a "subterfuge and false pretense." The Court was
unimpressed: authorization of the dam came clearly within the government's
power to improve navigation and represented a "valid exercise of the
Constitutional power. "39 Four years later Arizonans returned to the Court and
asked it to certify for later use some oral testimony on the meaning of
certain sections of the Colorado River Compact. They planned to use the
testimony in a future suit against California. Again the Court disappointed
them: "The meaning of the Compact . . . can never be material . . . since
Arizona refused to ratify. "40 Still unwilling to admit defeat, Arizonans
turned once more to the Court a year later. In 1935 they asked for a judicial
apportionment of the lower Colorado in which Arizona would receive an
"equitable share of the water." But, as before, the justices threw out the
case. The technical reason was Arizona's failure to make the US government a
party to the suit. Yet even if the US had been included, the Court left little
doubt that the outcome would have been the same. Unless Arizona could show
that it was actually being deprived of water to which it held title, there
would be no "justifiable controversy."41 With hundreds of millions of gallons
flowing unused in the river, Arizona stood little chance of demonstrating that
harm had been done.
Convinced at last that the
Court would not provide a satisfactory solution, Arizonans reopened bargaining
with California. But here, too, the old patterns of intransigence reemerged.
Arizonans had not endeared themselves to their rival when in 1933 they had sent
their National Guard to prevent construction of MWD's diversion works on the
Colorado. The shutdown proved temporary, but the incident had hardened
differences that became further embittered as first one and then another of
California's projects were completed. 42 By the early 1 940s the accumulated
setbacks prompted some leading Arizo-nans to reassess the state's water
policy-a policy. grounded on opposition to the Colorado River Compact.
California's advances
naturally played a role in Arizona thinking, but so, too, did developments at
home. The state's population had more than doubled in the two decades
following the drafting of the compact. By 1944 the number of people stood at
700,000 with most of them congregated in the central part of the state near
the rapidly growing cities of Phoenix and Tucson. Local water supplies were
inadequate for the growth envisaged by state leaders, and in some places wells
had gone dry while in others pumping had led to land subsidence.
Electricity was in even
shorter supply than water. In 1939 the Bureau of Reclamation responded to
Arizona's plea for emergency power by establishing a line to Hoover Dam.43
Arizona's decision to accept
Hoover Dam electricity marked a major change in the state's policy. Leaders
had delayed taking power as long as possible on the grounds that doing so would
compromise their opposition to the. compact. They had found support for such
resistance from private power companies that were not anxious to compete with
cheaper public power. But the need for electricity proved eventually too strong
to resist. In time so did the desire for water. Many Arizonans began arguing
that if the state was to win support in Congress for reclamation projects of
its own, Arizona would have to ratify the compact. Taking this message directly
to the people of the state was Governor Sidney Osborn. "With the passage by
Congress of the Boulder Canyon Project Act in 1928," Osborn declared in
1943,"the era of theorizing about the Colorado's riches has ended. Whatever
our previous opinion about the best place and the best plan for utilizing its
water . . . we now can only recognize that the decisions have been made,
and the dam has been constructed. "44 . On February 24, 1944, the Arizona
legislature unconditionally ratified the compact and reversed twenty-two years
of opposition.45 State leaders then began working closely with the Reclamation
Bureau to devise a major reclamation project for Arizona. The struggle now
entered a new phase.
The Mexican Water Treaty
Reinforcing Arizona's decision to
ratify the compact was a treaty signed three weeks earlier by the United States
and Mexico. On February 3, 1944, the two countries had ended nearly a half
century of controversy by agreeing to divide the waters of the Colorado River.
Some two thousand square miles of Mexican territory lay within the Colorado
Basin, a modest amount of land when compared to the US drainage area, but it
included the Mexicali Valley, one of the richest agricultural regions in
Mexico.
The Mexicali Valley lies just across the border from
California's Imperial Valley, and the development of the two areas was closely
intertwined from the outset. The need to divert water south of the line and to
allow landholders in Mexico up to half the flow fostered farming in the
Mexicali Valley while also stimulating demands in the US for the All-American
Canal. Some leaders in both countries early advocated a treaty dividing the
river's waters, but negotiations seldom got beyond the preliminary stage.
Complicating the task were attempts to reach a similar agreement on the lower
Rio Grande, the other major river shared by the US and Mexico. In 1906, the
two countries had arrived at a settlement on the waters of the upper Rio
Grande (the area north of Fort Quitman, a demarcation point just below El Paso
and Juarez), but talks on the lower river stalled and became increasingly
tangled with those on the Colorado. While virtually all the waters of the
Colorado originated in the US, the situation was almost the reverse on the
lower Rio Grande where more than 70 percent of the runoff came from Mexico.
The situation contained the elements for a horse trade, but neither country
would compromise enough to reach a settlement. Each nation tended to approach
the rivers separately and to seek the superior settlement even when this meant
adopting a legal position on one river at odds with the position advanced on
the other stream. During extended talks in 1929 and 1930, the US offered
Mexico 0.75 million acre-feet of Colorado River water, the maximum amount she
had used in any one year up to that time, but Mexico insisted on more than
four times as much. When the talks collapsed, Mexico expanded her agriculture
below the border while Imperial Valley farmers looked forward to the completion
of the All-American Canal with which they hoped to force a settlement on
Mexico. 46
By the early 1940s both
countries were anxious for an accord. The completion of the All-American Canal
in 1942 and plans for a project on the lower Rio Grande that would neutralize
Mexico's superior position there brought Mexican officials to the bargaining
table. The US sought to put a limit on Mexico's Colorado River uses, which had
doubled during the previous decade and could be expected to increase further
as a result of Hoover Dam's regulation of the river. Only when Americans began
using virtually the entire flow-and that might not be for decades-would the
All-American Canal become an effective weapon. The US government, enmeshed in
the crisis of World War II, also believed that a settlement of the water
dispute
would significantly advance the Good Neighbor Policy of President
Franklin D. Roosevelt.
After months of bargaining
during which the State Department consulted frequently with leaders in the
Colorado Basin states, the two nations signed a treaty in February 1944.
Mexico received 1.5 million acre-feet, an amount slightly less than the State
Department believed that country was then using. 47
Californians greeted the
news with anger. They claimed Mexico deserved only 0.75 million acre-feet, the
maximum amount that it had used prior to the completion of Hoover Dam in 1935
and the amount offered in the unsuccessful negotiations of 1929 and 1930.
Behind California's strong opposition was the belief that Mexico was being
given water that would mostly come from California. The state had limited
itself to 4.4 million acre-feet plus half the surplus, and California was
currently using nearly a million acre-feet of surplus water. California's
calculations indicated there would be little or no surplus remaining if Mexico
received the amount promised in the treaty. 45
While Californians
fought vigorously to prevent US Senate approval of the agreement, the other
basin states advocated ratification. They feared that Mexican uses would
increase further and perhaps encroach on the basic compact allocations if a
settlement were not obtained. Even Arizona, which also had designs on surplus
water, endorsed the treaty. Arizonans, unlike Californians, had not built
expensive aqueducts with capacities to carry surplus waters to the state.
Moreover, Arizonans, who had now ratified the compact, shared the upper
states' desire to safeguard the basic allocations in that agreement. Support
also came from those worried about the harm that would be done to the Good
Neighbor Policy by a rejection of the treaty. Repercussions would be more
serious than in earlier years since Mexicans, not American capitalists, were
now farming the Mexicali Valley. In 1938 the Mexican government had
expropriated most of the land belonging to the Chandler syndicate and the
remainder had been disposed of a few years later. Additional advocates of the
treaty were Texans on the lower Rio Grande who were pleased with the
provisions allocating water on that stream and providing for orderly
international development.
The broad support, together with pressure
from the White House, overwhelmed the California Opposition. On April 18,1945,
the Senate approved the treaty by a vote of seventy-six to ten. Five months
later, on September27, the Mexican Senate voted unanimous approval. 49
Upper
Basin Compact: Harbinger of Development
The Mexican treaty, Arizona's
ratification of the compact, and California's rapidly increasing uses of
Colorado River water forcefully reminded the upper states of their own
reclamation ambitions. Colorado had already taken the lead in 1937 by winning
congressional approval of the Colorado Big Thompson Project, a plan for
transporting water out of the basin to the cities and farms on the eastern
slope of the Rockies. Other projects awaited a feasibility study authorized by
the Boulder Canyon Act but delayed by the onset of World War II. Finally, in
March 1946, the Reclamation Bureau issued the long-awaited study. The message
proved disconcerting: many possible projects existed on the headwaters but
there was not enough water for all of them. Until the upper states determined
their individual rights the Bureau refused to approve any proj ects.50
Within four months, the governors of the Upper Basin states had
authorized negotiation of a compact to apportion their share of the river's
waters. After two years of gathering data and holding public hearings,
delegates gathered in Vernal, Utah, in July 1948 to draft an agreement. Three
weeks of negotiations produced a pact apportioning the Upper Basin water on a
percentage basis: 51.75 percent to Colorado, 23 percent to Utah, 14 percent to
Wyoming, and 11.25 percent to New Mexico. The use of percentages reflected
uncertainty over how much water would remain after the Upper Basin had
fulfilled its obligation to the lower states and, if the surplus proved
insufficient, to Mexico. Only Arizona, which had a small section of the state
in the Upper Basin, received a specific volume-fifty thousand acre-feet.
Unlike the compact of 1922, the Upper Basin agreement provided for the
creation of an interstate agency, the Upper Colorado River Commission, charged
with determining the water uses of each state and with reducing diversions if
that should become necessary to meet the obligations to the Lower Basin.51
The delegates circulated the draft
agreement among their respective state governments, which gave the go-ahead
for the formal signing in Santa Fe on October 11,1948. By early 1949, the pact
had received the approval of all the upper-state legislatures and Congress. 52
Upper Basin leaders now joined with Reclamation Bureau officials to obtain
major new reclamation projects for their region.
In early 1952 the
first Colorado River Storage Project Bill reached Congress. It called for a
billion-dollar dam-building program with major reservoirs at Echo Park on the
Green River and at Glen Canyon on the main stream near the Arizona-Utah
border. The bill immediately aroused opposition from southern Californians who
viewed any significant developments on the upper river as threats to their own
water uses. More recent measurements of flow had been calling into question
the rosy forecasts on which the 1922 compact had been based. Major opposition
also emerged nationwide and focused on the Echo Park reservoir, which would
flood the unique and beautiful canyons of Dinosaur National Monument. The alarm
escalated into the biggest battle over wilderness preservation since John Muir
had tried t9 keep a dam out of Hetch Hetchy Valley at the turn of the century.
The contest was essentially a civil war in which both sides labeled
themselves"conservationists." While one side campaigned for conservation for
use through dams and hydroelectric power, the other argued for conservation
through preservation of unique wilderness areas. The struggle took on added
intensity when opponents elevated Echo Park to the status of a test case that
they believed would shape national policy for decades.53
After several years of
struggle, the bill's advocates finally conceded that Echo Park would have to
go. Opposition in the House proved unmovable, and preservationists began
threatening to campaign against other dam sites mentioned in the bill. The
measure that finally cleared Congress in 1956 eliminated Echo Park and seemed
to reflect an unequivocal preservationist victory: "It is the intention of
Congress that no dam or reservoir constructed under the authorization of the
Act shall be within any National Park or Monument."54 Within a short time,
however, it became clear that the victory was far from complete.
Preservationists viewed their acquiescence to the other major dam in the bill
at Glen Canyon as a serious mistake that cost the loss of a remarkable
wilderness area. Their disappointment intensified several years later when they
failed to prevent the water rising behind Glen Canyon Dam from flooding Rainbow
Bridge National Monument in southern Utah.55 The congressional proviso in the
1956 measure appeared to be a dead letter.
Under the resulting Colorado
River Storage Project Act of 1956, Glen Canyon became the "cash register"
generating most of the revenue through the sale of hydroelectric power to
build a dozen so-called participating projects elsewhere in the Upper Basin.
The largest was the Central Utah Project outside the basin, which was to
receive water for nearly 144,000 acres of new land and a supplementary supply
for almost 243,000 acres. By 1963 Glen Canyon Dam had been completed and Lake
Powell had been brought into existence behind it. The act also authorized dams
for three tributarie~Blue Mesa on the Gunnison, Flaming Gorge on the Green,
and Navajo on the San Juan. Additional legislation in 1962 and 1964 further
rounded out Upper Basin desires by authorizing the San Juan~hama, Navajo,
Fryingpan~ Arkansas, Savery-Pot Hook, Bostwick Park, and Fruitland Mesa proj
ects.56
"Arizona
V. California: Round Two"
The Upper Basin's success
in obtaining reclamation projects aroused envy and concern in Arizona. That
state had approved the compact in 1944 and three years later greeted
enthusiastically the Reclamation Bureau's plan for a massive undertaking, the
Central Arizona Project (CAP). The plan resurrected and now deemed
economically feasible the old high-line canal scheme advocated by former
Governor Hunt. The project called for a 241-mile-long aqueduct to transport
some 1.2 million acre-feet to the rapidly growing Phoenix and Tucson areas.
When Arizonans introduced a bill in Congress to authorize the CAP, they
encountered stiff opposition from Californians who argued that "Arizona was
attempting to use water that did not belong to the state. This time dissension
centered on conflicting interpretations of the 1922 compact. The differing
claims caused Congress to refuse approval )f the CAP until the two states had
resolved their differences. Congress did not want to invest in a project for
which there might be no water,57
The news bitterly
disappointed Arizonans. While the Upper Basin, California, and Mexico were
moving ahead with their projects, Arizonans had remained stymied. They
believed their only recourse was to appeal once more to the US Supreme Court.
When Arizona filed suit in 1952,
it asked the Court for a judicial apportionment of the Lower Basin's water.
When it had made a similar plea in 1935 the Court had refused to act on the
grounds that no actual harm was being done since the volume of water exceeded
current uses. Seventeen years later the flow still exceeded uses, but this time
Arizona succeeded in persuading the justices that the state would suffer
serious harm if the dispute with California were not resolved.
The subsequent trial proved to be
among the most complicated and hotly contested in Supreme Court history. It
lasted eleven years, required the services of a special master, cost nearly
five million dollars, and resulted in major shifts in position as the two states
jockeyed for advantage. Some 340 witnesses testified and nearly 50 lawyers
participated before the opinion was finally announced on June 3, 1963,
followed by the decree on March 9,1964.
The decision represented a
tremendous victory for Arizona, although the nature of the victory took nearly
everyone by surprise. The Court grounded its opinion not on the compact, but
rather on the Boulder Canyon Act. In that measure, declared the Court in its
five-to-three decision, Congress ''intended to and did create its own
comprehensive scheme for . . . apportionment." According to the justices,
Congress in 1928 had not merely suggested a Lower Basin compact; it had
actually authorized the Secretary of the Interior to use his contract power to
implement a Lower Basin agreement-an agreement "leaving each State its
tributaries" and an agreement in which "Congress decided that a fair division
of the first 7,500,000 acre-feet of. . . mainstream waters would give
4,400,000 acre-feet to California, 2,800,000 acre-feet to Arizona, and 300,000
to Nevada. "58 By awarding Arizona all the water in its tributaries plus 2.8
million acre-feet, the Court gave the state virtually everything that it had
unsuccessfully sought during the negotiations for the 1922 compact.
Californians reacted angrily to
the decision, accusing the Court of misreading the intent of Congress and
eroding the rights of the states. They correctly noted that the decision
represented the first time that the Court had interpreted an act of Congress
as apportioning rights to interstate streams. Water rights had earlier been
determined only by interstate compact or by the Supreme Court itself. Now a
third way had won approval, even though it would have amazed the Congress of
thirty-five years earlier to know what it was supposed to have done.59
Another surprise was the Court's
decision on how future surpluses and shortages would be allocated.
Responsibility would rest with the Secretary of the Interior, who would not
only apportion surpluses and shortages among the states but also among the
users within each state. The latter marked an especially sharp break with
tradition. Since states had always determined the water laws applicable to
their citizens, they had naturally also determined the water rights of those
citizens. But now the Court held that Congress had empowered the Secretary of
the Interior to determine those rights when water had been secured by contract
from federal reclamation projects.
In explaining Congress's authority
over apportionment, the Court pointed to the navigation clause of the
Constitution, but it also hinted that Congress could invoke the "general
welfare" clause to divide the waters of non-navigable as well as navigable
streams.60 The decision thus increased dramatically Congress's authority over
the nations rivers. More importantly from the point of view of Arizonans, it
seemed at long last to pave the way for the Central Arizona Project.
"Arizona
V, California" and the American Indian
The decision in Arizona v.
California proved almost as much a victory for American Indians as for
Arizona. The Indians had long been overlooked in Colorado River matters, but
following World War II they reemerged in the public consciousness as white
Americans grappled uneasily with the social and economic inequities of the
nation's ethnic minorities. When Arizona filed suit in 1952, the federal
government intervened to protect its interests and also to defend the rights
of the Indians living on the twenty-five reservations in the Lower Basin.
Government lawyers asked for sufficient water to maintain not only Indian
reservations, but, in addition, the national forests, parks, recreational
areas; and other governmental holdings. Specifically for the Indians, the
government demanded enough water to develop all the irrigable lands on the
reservations.
The Court upheld the contentions
of the federal attorneys, al-
though in doing so it restricted its
decision to the five reservations along or near the main stream-Chemehuevi,
Cocopah, Yuma, Colorado River, and Fort Mohave-and left to the future the
ultimate fate of the other reservations. Implicitly, however the opinion had
far -reaching implications for Indians elsewhere. Invoking a principle laid
down in the 1908 case of Winters v. United States, the justices held that the
five lower-river reservations "were not limited to land but included waters as
well. . . . It is impossible to believe that when Congress created the great
Colorado River Indian Reservation and when the Executive Department of this
Nation created the other reservations they were unaware that most of the lands
were of the desert kind-hot, scorching sands-and that water from the river
would be essential to the life of the Indian people and to the animals they
hunted and the crops they raised. " In determining the volume of water set
aside, the Court adopted the government's position. "How many Indians there
will be and what their future needs will be can only be guessed. We have
concluded . . . that the only feasible and fair way by which reserved water
for the reservations can be measured is irrigable acreage. "61 Although the
measurement of the right was irrigable acreage, the Court held in a later
supplemental decree that the Indians were not restricted in the uses to which
they could put their water.62 Reason, rather than agriculture, seemed to
emerge as the ultimate test.
The 1963 decision also stipulated
that Indian uses were to be charged against the state in which a reservation
was located. This especially disturbed Arizona where most of the Indian land
was located, but it pleased none of the basin states. In addition, the Court
held that the Indian rights dated from the establishment of a reservation and
was superior to later non-Indian rights, including those rights based on uses
initiated before the Indians had begun diverting water. Thus the Court held
(and in so doing reaffirmed the earlier Winters decision) that the Indian rights
existed whether or not the Indians were actually using water and continued
unimpaired even if the Indians should cease their uses. Since some of the
Indian lands along the lower river had been Set aside as early as 1865 and
none later than 1917, the decision left the Indians in an almost impregnable
legal position.
But the Indians soon learned that
a legal right did not guarantee them water. A decade after the decision, the
Indians were farming
only about half their irrigable acreage. By the later
1970s the amount was closer to 60 percent, but the Indians themselves had
developed less than 8 percent. The remainder was in the hands of non-Indian
leaseholders. The major reasons for this situation were Indian poverty and
non-Indian pressure on the federal government. The Indians were unable to
finance expensive irrigation projects themselves, and Congress was reluctant
to help because of pressure from non-Indians op posed to Indian projects that
would divert water from their cities and farms. The Colorado River Indian
Irrigation Project, for example, was initiated in 1865 but remains uncompleted
primarily because of lack of funds. Not surprisingly, when Indian lands on the
lower river have been developed, it has usually been because tribes have
entered into long-term leasing arrangements with non-Indians. 63
Another disappointment to Indians
on the lower Colorado was the 1983 Supreme Court decision on the extent of the
irrigable acreage on the reservations. For two decades Indians and non-Indians
debated sharply, with the Indians offering one set of figures and the
non-Indians insisting on another and lower set. In 1979 the Supreme Court
turned the dispute over to a special master who three years later recommended
that the Court uphold Indian claims that would permit them to receive some 1.2
million acre-feet or about a third more water than had been awarded nearly
twenty years earlier in Arizona v. California. In a five-to-three decision,
the Court in 1983 rejected the recommendation, explaining that it violated the
spirit of res judicata: "Recalculating the amount of practicably irrigable
acreage runs directly counter to the strong interest in finality in this
case." Besides, the Court observed, more water for the Indians "cannot help
but exacerbate potential water shortage problems" for non-Indians. 64
Elsewhere in the Colorado River
Basin, Indians have sometimes bargained away potential rights in order to obtain
congressional support for projects. The Navajos, the nation's largest tribe,
did so in 1957 when the tribal council, in exchange for congressional approval
of the Navajo Indian Irrigation Project, agreed to waive its priority on the
San Juan River 'and to share water shortages proportionately with non-Indians.
A decade later the Navajos entered into still another agreement which
compromised their claims and became the subject of sharp controversy. In
exchange for the construction of a power plant on the reservation and the jobs
and revenue it would provide, the Navajos agreed to limit their demands to the
water of the upper Colorado to fifty thousand acre-feet. The limitation was
for the life of the power plant (now in operation) or for fifty years,
whichever ended first. Many Navajos subsequently attacked the agreement,
claiming that the federal government failed to fully inform the tribal council
about valuable potential rights that it was surrendering.65 In recent years,
the Navajos have employed engineers and attorneys to prepare a water rights
case against the basin states and the federal government, Some observers
believe that the suit, if filed, will be for at least five million acre-feet.
66 The outcome of such litigation, as well as of suits now being contemplated
by other tribes, is impossible to determine. What is clear is that Indians can
no longer be ignored in future planning for the Colorado River.
The
CAP: Catalyst for Basinwide Development
Arizona v. California proved a
boon-at least legally-for Indians, but Arizonans were the major beneficiaries.
As victors in their decade-old struggle with California, they optimistically
returned to Congress for authorization of the Central Arizona Project.
Approval did not come easily, however. Californians had lost the Supreme Court
battle in 1963,. but their large delegation in the House of Representatives
doggedly held up the Arizona project for five years. Behind the California
resistance was the conviction of state leaders that earlier estimates of
stream flow had been grossly overestimated. Instead of 16.4 million acre-feet
at Lee's Ferry, the runoff, according to more recent estimates, was closer to
fourteen million acre-feet. This meant that under conditions of full
development, the Lower Basin would receive at Lee's Ferry only the
seventy-five million acre-feet over a ten-year period as guaranteed in the
1922 compact. Adjustments for evaporation losses, Indian claims, and the
Mexican treaty obligation could be expected to reduce the available supply
even further.67
But Californians were willing to
bargain. As the price for dropping their opposition to CAP, they demanded a
first priority for California's apportionment of 4.4 million acre-feet. In
effect, Arizonans would have to promise to regulate CAP diversions so that
Californians never received less than that amount. No one missed the point:
California boldly sought to regain some of the ground lost in the 1963 Court
decision.
Arizonans reluctantly acquiesced.
Like Californians, they were uneasy about the adequacy of the water supply,
but their desire for the CAP outweighed their uneasiness. The water diverted
to the CAP, they promised Californians in a provision added to the bill, "shall
be so limited as to assure the availability" of the 4.4 million acre-feet
allocated to California.
Arizona had to mollify more than
California. The concern about the water supply had spread to the Upper Basin.
If the river flow at Lee's Ferry was only about fourteen million acre-feet, as
many now suspected, then the upper states, after fulfilling their obligation
to the Lower Basin, would receive 6.5 million acre-feet, a million acre-feet
less than anticipated in the 1922 compact. Their share could drop even further
after allowing for evaporation losses, the Mexican treaty, and Indian claims.
Worried that such water-supply estimates might later prevent them from obtaining
projects on their own, they tied their fortunes to the Arizona bill. They
agreed to support it but only in exchange for a provision authorizing five
projects for the Upper Basin-Animas-LaPlata, Dolores, Dallas, West Divide, and
San Miguel. This would bring to twenty-one the number of "participating
projects" authorized by Congress for the Upper Basin since l956.~
The maneuvering for concessions
produced a bill authorizing projects for which the water supply was likely to
be inadequate. This possibility prompted the basin states to close ranks behind
another provision directing the Bureau of Reclamation to study ways of bringing
water into the Colorado River Basin from other river systems. Strong
opposition came from environmentalists and especially from leaders in the
Pacific Northwest who knew that Bureau officials viewed the Columbia River as
the probable source of a supplementary supply. Although the opponents failed
to delete the provision, they succeeded in obtaining a ten-year ban on
interbasin studies.
Satisfying the various water
interests in the basin proved to be only one of the obstacles facing the CAP
advocates. In the public's mind, the most controversial aspect of the
legislation involved two proposed dams, one at Marble Canyon just east of the
main gorge of the Grand Canyon, and the other at Bridge Canyon, a short
distance west of Grand Canyon. The principal purpose of the dams would be
to generate hydroelectricity to provide revenue for building the CAP and power
to pump the water into Central Arizona. Both dams would flood scenic areas,
and the reservoir behind Bridge Canyon would inundate portions of Grand Canyon
National Park and Grand Canyon National Monument. Environmentalists waged a
vigorous, national campaign against the dams that was reminiscent of the
struggle over Echo Park. The furor finally forced the deletion of the dams. In
their place was substituted a coal-fired power plant to be built at Page in
northern Arizona. 69
As finally amended, the CAP
legislation emerged as the Colorado River Basin Project Bill. In September
1968, the billion-dollar-plus package of compromises received congressional
approval. 70
Uncertainty over the adequacy of
the water supply for the CAP as well as concern about the project's impact on
the environment resulted in only small annual appropriations for actual
construction. By the early 1 980s the slowdown in the nation's economy had
added to the delay, but by then the coal-fired plant had been built (emitting
air pollutants over Grand Canyon, Zion, Cedar Breaks, and Bryce that caused
environmentalists to regret having given their earlier approval) and
completion of the CAP to the Phoenix area was scheduled for late 1985 and to
the Tucson area for the early l990s. In the Upper Basin, nine of the
twenty-one participating projects had been completed by 1971 and work was
continuing on most of the others in the early l980s. Construction crews on the
ambitious Central Utah Project had by early 1985 finished a tunnel through the
Continental Divide and were under contract to complete the final segments of
the 37-mile-long Strawberry Aqueduct.71
Salinity
Controversy with Mexico
Even before construction had begun
on the CAP or on most Upper Basin projects, the United States had become
embroiled once more in a controversy with Mexico, this time over the quality
of the runoff reaching that country. The 1944 treaty had guaranteed Mexico 1.5
million acre-feet, but the agreement said nothing specific about water
quality. The seriousness of the omission had become apparent even before
ratification and while hearings were being held on the treaty in the US and
Mexico. American negotiators claimed that the Mexican obligation could be met
with water of any quality, while Mexico's diplomats told their senators that
the treaty guaranteed water of "good quality." The issue had arisen because
studies indicated that water reaching Mexico during certain future periods
would consist almost entirely of heavily saline drainage from irrigated fields
in the US Such concern failed to dampen the enthusiasm of treaty advocates who
feared that attempts to clarify the agreement through reservations or
renegotiation would result in no treaty at all. 72 Sixteen years later water
quality emerged as a bitter issue between Mexico and the US
In 1961 the Wellton-Mohawk
Irrigation District, located along the lower Gila River in Arizona, completed
a channel discharging drainage water into the Colorado just above Mexico's
diversion canal. This water was exceptionally heavy in salt content since its
source was an underground basin possessing no outlet and containing water that
had been used and reused over the years until it had declined sharply in
quality. The introduction into the Wellton-Mohawk Valley of a new supply from
the Colorado River in the 1950s had raised the water table and damaged fields,
causing farmers to take the Reclamation Bureau's advice and install wells to
pump the polluted groundwater to the surface and channel it into the main
stream. When this drainage water reached the Colorado in February 1961 it
caused the average annual salinity of the flow crossing the border to nearly
double. Resulting crop losses in Mexico produced a loud outcry. Mexican
officials accused the US of violating the 1944 treaty, demanded compensation
for damages, insisted on water as good as that going to the Imperial Valley,
and threatened to take the issue to the International Court of Justice if the
protests went unheeded. The US denied that the treaty imposed any obligation
"with respect to the quality of the water," but nonetheless took steps to
alleviate the problem. Fresher water was released from American dams and a
channel was constructed in 1965 to divert the Wellton-Mohawk drainage around
the Mexican intake. 73
The situation improved, but both
countries recognized the improvement as temporary. It would be only a matter
of time before evaporation from American reservoirs and completion of projects
already authorized would seriously impair the quality of water crossing the
border. The two nations sought a negotiated settlement, and on August 30, 1973,
they signed an agreement known as Minute 242 of the International Boundary and
Water Commission. 74
Both governments hailed the
agreement as "the permanent and definitive solution of the salinity problem, "
an expression mote of hope than ~f reality. Minute 242 promised Mexico that
most of its water (1.36 million acre-feet) would have an average annual
salinity of no more than 115 parts per million (plus or minus 33 ppm) over the
salinity of the water going to the Imperial Valley. The balance of Mexico's
water (0.14 million acre-feet), which had traditionally been delivered at San
Luis on the Arizona-Sonora land boundary, would continue "with a salinity
substantially the same as that of the waters customarily delivered there." The
agreement obligated the US to assume all the costs necessary to maintain the
agreed-upon salinity levels. In addition, the US pledged to finance the
installation of tile drains in the Mexicali Valley and to fund any other
"rehabilitation" measures necessary to eliminate the "salinity problem" there.
As far as Mexico was concerned,
Minute 242 would represent a permanent and definitive solution" only so long
as water quality remained substantially as it was at that time (approximately
1,000 ppm). The American negotiator of the agreement candidly acknowledged that
unless the US immediately took steps to control salinity within its borders
another dispute with Mexico was inevitable. 75
Congress took the hint. In June
1974 the Colorado River Basin Salinity Control Act received the overwhelming
approval of both House and Senate. The measure authorized upstream salt-control
projects in Nevada, Utah, and Colorado, as well as one of the world's largest
desalination plants near Yuma. The plant is now under construction and scheduled
for completion in 1989 or 1990. Only time will reveal the success or failure
of the efforts. 76
Retrospect
"A river no more is one current
assessment of the Colorado. 77 It is difficult to argue with such an
observation. The dams and aqueducts already in place have permanently altered
the river's appearance and, for more than two decades, have prevented
virtually any water from flowing to the Gulf of California. 78 Completion of
projects already authorized can only further control a river that long ago
ceased to be
wild. The wonder is that the Colorado has been so transformed
in light of the monumental battles over its waters during the last
three-quarters of a century. But those controversies reflect not only the
preciousness of water in an arid land, but more importantly, the almost
frenzied determination of the combatants to use water as quickly as possible
and thereby strengthen their claim to it.
The determination to use rivers
has shaped the major western institutions dealing with water in general and
the Colorado in particular. The law of prior appropriation is an obvious
reverberation, but so too are the Colorado River Compact, the Boulder Canyon
Act, the Mexican treaty, the Upper Basin compact, the 1963 Arizona v.
California decision, and the other actions, which, taken together, have made
the Colorado what it is today. Each represents for its time what was perceived
by its advocates as the best way of dealing with the river. The best way, of
course, did not always mean the most efficient, the most environmentally
sound, or the fairest way to proceed.
Some would now like to undo past
decisions or at least to chart a future less constrained by those actions. In
the Upper Basin are those who advocate rewriting the 1922 compact so as to
reflect more recent estimates of stream flow and to assure themselves enough
water to develop their oil-shale and other mineral reserves. Indians want a
larger share of the river. Environmentalists wish to prevent additional
development and to sidetrack some authorized but uncompleted projects. More
significantly, they would like to change popular attitudes which view every
drop of water reaching the ocean as a drop wasted and which tend to overlook
aesthetic and recreational values associated with uncontrolled streams.
There are, in addition, those
convinced that the only way to proceed is to augment the Colorado River with
water from elsewhere. In 1978 the ten-year moratorium on studies to bring in
water from other basins was renewed for another ten years. When it was first
imposed, most eyes were on the Columbia River, but the emergence of the
environmental movement and the costly pumping requirements projected in
studies of the Columbia have dampened enthusiasm for such a transfer-at least
for the time being.
Ten years ago many experts
predicted that desalination of ocean water would become a major source for
meeting municipal and industrial needs. Since then, declining public support
for nuclear plants and skyrocketing costs of oil for conventional facilities
have seriously undermined this possibility for the foreseeable future. The
energy cost in oil for desalting an acre-foot of ocean water in southern
California is more than six times that for an equivalent volume of Colorado
River water brought in by aqueduct. 79
A byproduct of the soaring cost
of energy has been intensified competition for the relatively cheap power
produced at Hoover Dam. The original power contracts were scheduled to come up
for renewal in 1987. California by the mid-1980s was receiving nearly 65
percent of the electricity, while Arizona and Nevada were getting 17.6 percent
apiece. At first, California insisted that the new contracts reaffirm the old
arrangement, but Arizona and Nevada demanded an equal allocation among the
three states, arguing that they needed the additional electricity, that the
Boulder Canyon Act entitled them to it, and that the dam's location in the two
states warranted a larger share. Californians disagreed, contending that their
decision to take the power provided the revenue to build the dam and that
"it's not right that Nevada and Arizona can come back 50 years later wanting
to take two thirds of the power. "80 Others, especially in the East, objected
to maintaining the current rate structure, arguing that the cost of Hoover
electricity was significantly below that of power elsewhere in the nation and
hence represented an unwarranted governmental subsidy. Anxious to forestall
the growing demands for a rate increase and to avoid a protracted court battle
among themselves, the three lower states in 1984 hammered out a compromise
based upon increasing the capacity of Hoover Dam's generators, the
surrendering by California of a small amount of energy, the obtaining of
additional power from other sources, and the retention of the current basis
for computing the cost of power. (Despite agreement on the last point, the
actual cost of power to the public could be expected to rise significantly as
a result of the changes to Hoover's generators and the obtaining of the
additional power from elsewhere.) With the western states voting almost as a
block, Congress approved the agreement and in late summer the President signed
into law the Hoover Power Plant Act under which the new contracts would not
again come up for renewal until the year 2017.81
Although the dispute over power
has captured recent headlines, concern over the water supply remains a
fundamental issues. Representatives of basin states with incomplete water
projects become nervous during public discussions about possible water
shortages. Receiving much attention is weather modification through
cloud-seeding as a way to augment river supplies. The results of the Bureau of
Reclamation's pilot program in the San Juan mountains of Colorado suggest that
cloud-seeding throughout the Upper Basin mountains would increase runoff by
1.3 million acre-feet a year. Although some find these claims encouraging, the
overall feasibility of weather modification as a significant source of water
must await the completion of current studies.82 Also receiving emphasis are
programs to control more effectively weeds along water courses and to
encourage more widespread use of laser land-leveling technology, drip
irrigation, and sprinkling rather than flooding.
Behind the scramble for water in
years past was not only its obvious necessity for survival in a water-shy
country but also an obsession with growth-an obsession that equated progress
with obtaining enough water to develop the biggest farms and cities and
industries. Many now question that fascination with growth, but even they tend
to forget that water is a finite commodity. Ten years or a hundred years or a
hundred thousand years from now, the world's supply will remain the same. Such
an assertion cannot be made about the world's population or about mankind's
capacity for devising technologies to use-and abuse-the limited water supply.
Put another way, the fate of all natural bodies of water is inseparably tied
to human values about the quality of life and the number of people any part of
the world can properly support. Seen from this perspective, the Colorado River
is a microcosm of the world's water supply. Lessons learned from its past and
policies adopted for its future are of fundamental importance not only for
those dependent on the river, but also for peoples everywhere.
Notes
1. Arthur Powell Davis to J. B. Lippincort, 10 October 1902,
Colorado River Project, 1902-1919, Bureau of Reclamation Papers, Record Group
115, File 187, National Archives.
2. Arthur Powell Davis,
The Single Tax from the Farmer's Standpoint (Minneapolis, 1897); Davis to
Gifford Pinchot, 14 May 1~2, Arthur Powell Davis Papers, Western History
Research Center, University of Wyoming, Laramie; Gene Gressley, "Arthur Powell
Davis, Reclamation, and the West," ~Agricultural History 42 (1968),
pp.241-S7.
3. League of the
Southwest, "Minutes" (Denver, 25-27 August 1920), p.34, copy in Box 477,
Imperial Irrigation District Papers, Imperial, Calif.
4. This agreement was
reached in 1904, three years after water was brought through Mexico to the
Imperial Valley. For the complex developments leading to it, see Norris
Hundley, jr., "The Politics of Reclamation: California, the Federal
Government, and the Origins of the Boulder Canyon Act-A Second Look,"
California Historical Quarterly 52 (1973), pp.300-
304.
5. "Report of the
American Section of the International Water Commission, United States and
Mexico," H. Doc. 359, 71st Cong., Zd sess. (1930), p. 103; Otis Tout, The
First Thirty Years, 1901-1931 (San Diego, 1931), passim; House Committee on
Irrigation of Arid Lands, Hearings on All-American Canal in lmperiai County,
Calif., H. H. 6044, 66th Cong.,1st sess. (1919), pp. 121,139,143,
passim.
6. House Committee on
Irrigation of Arid Lands, Hearings on All-American Canal in Imperial County,
Calif, H. R. 6044, p.116.
7. Imperial Irrigation
District Board of Directors, "Minutes"(13 November 1917), vol.3, p.92; Fl Centro
Progress, 11 November 1917; US Department of the Interior, Seventeenth Annual
Report of the Reclamation Service, 1917-1918 (Washington, D.C., 1918), p.382;
Cong. Rec., 66thCong., 1st sess. (1919), p. 1258.
8. "Report on H.R. 6044
for Relief of Imperial Valley, California," 21 August 1919, p. 13, File
711.1216M/494, Records of the Department of State, National Archives; House
Committee on Irrigation of Arid Lands, Hearings on All-American Canal in
Imperial and Coachella Valleys, Calif, H. R. 6044 and H.R. 11553, 66th Cong.
(1920), pp.94,142, 261, 290, passim.
9. Cong. Rec., 66th
Cong., 2d sess. (1920), p.7360.
10. William L. Kahrl,
Water and Power: The Conflict over Los Angeles' Water Supply in the Owens Valley
(Berkeley and Los Angeles, 1982); Abraham Hoffman, Vision or Villainy: Origins
of the Owens Valley~Los Angeles Water Controversy (College Station, Tex.,
1981).
11. "Problems of
Imperial Valley and Vicinity," S. Doc. 142, 67th Cong., 2d sess. (1922),
pp.282-83.
12. Metropolitan Water
District of Southern California, Metropolitan Water District Act (Los Angeles,
1947).
13. Colorado River
Commission, "Hearings" (Denver, 31 March 1922), p.70, copy in Colorado River
Project, Bureau of Reclamation Papers, Record Group 115, File 032, National
Archives.
14. "Problems of
Imperial Valley and Vicinity, " S. Doc. 142, 67th Cong., 2d sess. (1922), p.
21.
15. Cong. Rec., 67th
Cong., 2d sess. (1922), pp. 5929, 5985.
16. Wyoming v. Colorado,
259 US 419 (1922).
17. Delph Carpenter,
"The Colorado River Compact," p.21, file 1-MI 366, Herbert Hoover Papers,
Hoover Presidential Library, West Branch, Iowa; "Proceedings of the League of
the Southwest, Denver, Colorado, August 25, 26, 27,1920" (typescript 11920]),
pp.287-90, copy in Papers of the Utah State Engineer, Utah State Archives, Sak
Lake City.
18. US Statutes at Large
42 (1921), p.171.
19. See Colorado River
Commission, "Minutes," in Colorado River Project, Bureau of Reclamation Papers,
Record Group 115; file 032, National Archives.
20. Delph Carpenter to
Frank C. Emerson, 7 September 1922, Papers of the Wyoming State Engineer,
Wyoming State Archives, Cheyenne.
21. See, especially,
Colorado River Commission, "Minutes of the Seventeenth Meeting" (15 November
1922), pp.8-12; "Minutes of the Nineteenth Meeting" (19 November 1922), pt. 1,
pp.4, 8; W. S. Norviel, "Report of W. S. Norviel, Colorado River Commissioner,
State of Arizona" 11923], p. 6, file 1-M13 15, Hoover Papers; Richard B.
Sloan, "Pact Criticism Is Largely on What It Does Not Say," Arizona Mining
Journal 6 (15 January 1923), p. 58. For a detailed discussion of the
negotiations, see Norris Hundley, jr., Water and the West: The Colorado River
Compact and the Politics of Water in the American Way (Berkeley and Los
Angeles, 1975), pp.187-214.
22. Colorado River
Commission, "Minutes of the Twenty-first Meeting" (20 November 1922); "Minutes
of the Twenty-second Meeting" (22 November 1922).
23. See, especially, the
minutes of the Colorado River Commission for the eleventh through the
twenty-second meetings; Delph Carpenter to Frank C. Emerson, 19 August 1922,
Papers of the Wyoming State Engineer; "Problems of the Imperial Valley and
Vicinity," S. Doc. 142, pp.2, 5; "Report of the Colorado River Board on the
Boulder Dam Project," H. Doc. 446, 70th Cong., 2d sess. (1928), pp.9,
12.
24. "Colorado River
Compact," H. Doc. 605, 67th Cong., 4th sess. (1923), Article IV For a later
legal analysis of the compact and much more, see Charles J. Meyers, "The
Colorado River," Stanford Law Review 19 (196~ 67), pp.l-75.
25. Colorado River
Commission, "Minutes of the Nineteenth Meeting" (19 November 1922), pt. 2,
p.2; "Minutes of the Twentieth Meeting" (19 November 1922), p.2.
26. Colorado River
Commission, "Minutes of the Twentieth Meeting" (19 November 1922), pp.39-40;
Deiph Carpenter, Report. . . in re Colorado River Compact (n.p. [15 December
1922]), p.7, copy in file 032, Colorado
River Compact, Bureau of Reclamation Papers; "Colorado River Compact,"
Article VII.
27. Colorado River
Commission, "Minutes of the Twenty-seventh Meeting" (24 November 1922), p. 8;
Santa Fe New Mexican, 25 and 28 November 1922.
28. Journal of the
Arizona Senate: Sixth Legislature, 1923, p.22.
29. George W. P. Hunt,
Arizona's Viewpoint on the Colorado River (Phoenix, 17 August 1925), p.1.
30. Hundley, Water and
the West, chap. 8.
31. Delph Carpenter to
R. T. McKisick, 23 December 1924, A. T. Hannett Papers, New Mexico State
Archives, Santa Fe.
32. Journal of the
California Assembly, 1925, p.1031; Journal of the California Senate, 1925,
pp.1135-36.
33. House Committee on
Irrigation and Reclamation, Hearings on Colorado River Basin, H.R. 6251 and
H.R. 9826, 69th Cong., 1st sess. (1926); Senate Committee on Irrigation and
Reclamation, Hearings on Colorado River Basin, S. 728 and S. 1274, 70th Cong.,
1st sess. (1928); Hiram Johnson to C. K. McClatchy, 17 March 1928, Hiram Johnson
Papers, Bancroft Library, University of California, Berkeley.
34. Cong. Rec., 70th
Cong., 2d sess. (1928), pp.382, 389.
35. Ibid., pp.470, 471.
For a close analysis of the congressional discussion of this suggested
agreement, see Norris Hundley, jr., "CIo NQdS: Arizona v. California and the
Boulder Canyon Act: A Reassessment," Western Historical Quarterly 3 (1972),
pp. 17-51.
36. US Statutes at Large
45 (1928), pp.1057-66; 46 (1929), p.3000; Calif Stats. (4 March 1929), chaps.
15-16, pp.37-39.
37. "Hoover Dam
Documents," H. D~c. 717, 80th Cong., 2d sess. (1948), pp.65-69.
38. William L. Kahrl,
ed., The California Water Atlas (Sacramento, 1979), pp.41-42.
39. Arizona v.
California, 283 US 423 (1931).
40. Arizona v.
California, 292 US 341(1934).
41. Arizona v.
California, 298 US 558 (1936).
42. Hundley, Water and
the West, pp.294-95, passim.
43. Ibid., pp.297-98.
For a perceptive analysis of Arizona water politics into the early 1960s, see
Dean B. Mann, The Politics of Water in Arizona (Tucson, 1963).
44. Journal of the
Arizona Senate, 1943, pp.89-90.
45. Journal of the
Arizona Senate, 1944, pp. 3~-39; Journal of the Arizona House, 1944,
p.60.
46. Norris Hundley, jr.,
Dividing the Waters: A Century of Controversy Between the United States and
Mexico (Berkeley and Los Angeles, 1966), chaps.2-4.
47. Ibid., p.147.
48. For a detailed
account of the debate over the treaty in the United States and Mexico, see
ibid., chap. 6. A careful legal analysis of the treaty may be found in Charles
J. Meyers and Richard L. Nob~, "The Colorado
River: The Treaty with Mexico," Stanford Law Review 19 (196~67),
pp.367-419.
49. Cong. Rec., 79th
Cong., 1st sess. (1945), pp. 3491-92; Excelsior (M~xico, D.E), 28 September
1945.
50. US Bureau of
Reclamation, The Colorado River: A Comprehensive Departmental Report on the
Development of the Water Resources of the Colorado River Basin for Review
Prior to Submission ro the Congress (Washington, D.C., 1946), p.21. For
discussion of the Colorado--Big Thompson Project, see Donald B. Cole,
"Transmountain Water Diversion in Colorado," Colorado Magazine 25 (1948), pp.
49-65, 118-33; William Kelly, "Colorado-Big Thompson Initiation, 1933-1938,"
ibid., 34 (1957), pp. 6~74; and Oliver Knight, "Correcting Nature's Error: The
Colorado~}~Big Thompson Project," Agricultural History 30 (1956), pp.
157-69.
51. Jean S.
Breitenstein, "The Upper Colorado River Basin Compact," State Government 22
(1949), pp. 21~16, 225.
52. US Statutes at Large
63 (1949), p.31.
53. Senate Committee on
Interior and Insular Affairs, Hearings on Colorado River Storage Project, 5.
1555, 83d Cong., 2d sess. (1954); Roderick Nash, Wilderness an:l the American
Mind, 3d ed. (New Haven, 1982), pp. 209-19; Dean Mann, Gary D. Weathefford,
and Phillip Nichols, "Legal Political History of Water Resource Development in
the Upper Colorado River Basin," Lake Powell Research Project Bulletin No.4
(Los Angeles, September 1974).
54. For discussion of
the controversy, see the items cited in the preceding note as well as "Echo
Park Controversy Resolved," Living Wilderness 20 (1955-56), pp.23-43; David
Perlman, "Our Winning Fight for Dinosaur," Sie~a Ch£b Bulletin 41(1956),
pp.5-8; Owen Stratton and Phillip Sirotkin, "The Echo Park Controversy, "
Inter-University Case Program No.46 (University, Ala., 1959); Richard B.
Baird, "The Politics of Echo Park and Other Development Projects in the Upper
Colorado River Basin" (Ph. D. diss., University of Illinois, 1960); Elmo
Richardson, Dams, Parks and Politics (Lexington, Ky., 1973).
55. Eliot Porter, The
Place No One Knew: Glen Canyon on the Colorado (San Francisco, 1963); Francois
Leydet, Time and River Flowing: Grand Canyon (San Francisco, 1964); Nash,
Wilderness and the American Mind, p.229; Dean B. Mann, "Conflict and
Coalition: Political Variables Underlying Water Resource Development in the
Upper Colorado River Basin, "Natural Resources Journal 15 (1975), pp.
16~67.
56. US Statutes at Large
76 (1962), p. 96; 78 (1964), p.852.
57. House Committee on
Interior and Insular Affairs, Hearings on the Central Arizona Project, H.R.
1500 and H.R. 1501, 82d Cong., 1st sess. (1951), pp.739-56, passim.
58. Arizona v.
California et al, 373 US 564, 565(1963).
59. See Hundley, "CIo
Nods: Arizona v. California and the Boulder Canyon Act," pp.17-51.
60. Arizona v.
California et al, 373 US 587(1963).
61. Ibid., 373 US 596,
598-601(1963). See also Winters v. United States, 207 US 564(1908); and Norris
Hundley, jr., "The 'Winters' De~ision and Indian Water Rights: A Mystery
Reexamined," Western Historical Quarterly 13 (1982), PP. 17-42.
62. Arizona v.
California et al., 439 US 422 (1979).
63. Norris Hundley, jr.,
"The Dark and Bloody Ground of Indian Water Rights: Confusion Elevated to
Principle," Western Historical Quarterly 9 (1978), pp.478-79; Acting Assistant
Director, Phoenix Area Office, US Bureau of Indian Affairs, to author, 18
January 1983.
64. Arizona v.
California, 51 LW 4329 (1983); Los Angeles Times, 19 March 1982 and 31 March
1983; Acting Assistant Director, Phoenix Area Office, US Bureau of Indian
Affairs, to author, 18 January 1983.
65. Monroe B. Price and
Gary D. Weatherford, "Indian Water Rights in Theory and Practice: Navajo
Experience in the Colorado River Basin," Law and Contemporary Problems 40
(1976), pp.108-31; James P. Merchant and David M. Domhusch, The Importance of
Water Supply to Indian Economic Development (prepared for the Office of Water
Research and Technology, US Dept. of the Interior, 1977), pp.64-65; interviews
with members of the Navajo Tribal Council, 2 May 1977
66. Metropolitan Water
District of Southern California, INFO (Los Angeles, October 1977),p. 27.
67. House Committee on
Interior and Insular Affairs, Hearings on Lower Colorado River Basin Project,
H. H. 4671 and Similar Bills, 89thCong. (1965-1966); Hearings on Colorado River
Basin Project, 90th Cong., 1st sess. (1967);
Hearings on Colorado River Basin Project, Part II, 90th Cong., 2d
sess. (1968). For an advocate's inside view of the struggle for the CAP, see
Rich Johnson, The Central Arizona Project, 1918-1968 (Tucson,
1977).
68. Ibid. For a
perceptive analysis of the bargaining for projects, see Helen M. Ingrain,
Patterns of Politics in Water Resource Development: A Case Study of New
Mexico's Role in the Colorado River Basin Bill (Albuquerque, 1969).
69. Nash, Wilderness and
the American Mind, pp.227-35; Congressional Quarterly Fact Sheet (1 November
1969), pp.3019-31.
70. US Statutes at Large
82 (1968), p.885.
71. Upper Colorado River
Commission, Thirty-second Annual Report (Salt Lake City, 30 September 1980),
pp.47-56; Central Utah Water Conservancy District, Annual Report, 1981 (Salt
Lake City, 1982); interview with Vernon Valantine of the Colorado River Board
of California, 15 May 1984, and 21 February 1983; Los Angeles Times, 19 February
1985. For concern about the air pollution caused by the coal-fired plant, see
Los Angeles Times, 9 February 1975; Alfred Runte, National Parks: The American
Experience (Lincoln, 1979), p.185.
72. Senate Committee on
Foreign Relations, Hearings on Water Treaty with Mexico, 79th Cong., 1st sess.
(1945), pp.323-38,1109, 1704, passim; Hundley, Dividing the Waters, pp.153-59,
passim; Hundley, 'The Colorado Waters Dispute," Foreign Affairs 42 (1963-64),
pp.495-500. For a Mexican perspective that, although polemical in outlook,
reproduces many Mexican documents, see Ernesto Enriquez Coyro, El Tratado
entre Mexico y los Estados Unidos de Ame~ca sol're Rtos internationales: Una
Lucha Nacion a 1 de Noventa An~os, 2 vols. (Mexico, D.F., 1975).
73. Joseph E Friedkin,
Commissioner of the US Section, International Boundary and Water Commission,
to the author, 6 June 1983; Hundley, Dividing the Waters, pp.172-80.
74. For a copy of the
English and Spanish versions of Minute 242, see the January 1975 issue of
National Resources Journal, pp.2-9. This issue also contains a valuable
collection of articles which analyze the salinity problem and Minute
242.
75. El Urnversal
(Mexico, D.F.), 30 August 1973; House Committee on Interior and Insular
Affairs, Hearings on Colorado River Basin Salinity Control, H.R. 12165, 93d
Cong., 2d sess. (1974), p.107; Myron Holburt, "International Problems of the
Colorado River," Natural Resources Journal iS (1975), pp.21-22.
76. US Statutes at Large
88(1974), p.266; US Section, International Boundary and Water Commission,
Joint Projects of the United States and Mexico
through the International Boundary and Water Commission, 1983 (n.
p., [1982]), p. 30; Hundley, Water and the West, pp. 3 1&~1 7; interview
with Vernon Valantine of the Colorado River Board of California, 15 May 1984.
See, also, "Symposium on Anticipating Transboundary Resource Needs and
issues in the U. S.-Mexico Border Region to the Year 2000," Natural Resources
Journal 22 (October 1982), passim.
77. Philip L. Fradkin,
A River No More: The Colorado River and the West (New York, 1981),
78. Metropolitan Water
District, INFO, p.30.
79. Ibid., p.21.
80. Los Angeles Times,
9 November 1982.
81. Federal Register,
9 May 1983, pp. 20872~89; memo from MWD Director of Contracts Administration
to Assistant General Manager David N. Kennedy, 19 May 1983, copy in possession
of author; interview with Vernon Valantine of the Colorado River Board of
California, 1 July 1983, iS May 1984, and 21 February 1985; Colorado River
Association, CRA Newsletter, 19, no.3 (1984), p.3; Los Angeles Times, 9 August
1984.
82. Colorado River Board
of California, Annual Report, 1979 (Los Angeles, 1980), p. 12; Metropolitan
Water District, INFO, pp.23-24.