By Eric Kuhn and John Fleck

Nevada’s James Scrugham

As Chairman Herbert Hoover gaveled the 21^st meeting of the Colorado River Commission to order on the morning of Nov. 20, 1922, they faced two big issues: Arizona’s concerns that the proposal on the table would not provide enough water for Lower Basin water users, and the question of whether to include construction of a dam as part of the Compact’s language. Hoover understood that unless they could find acceptable solutions to both topics, ratification of the compact by all seven states was doubtful.

First, however, Hoover suggested they “take up one or two of these subsidiary articles and see if we can’t clear them out of the way.” After that he needed to focus the discussion back to the two major issues where there was still no agreement.

Tribal water, and remedies

The first order of business was to revisit the issue of how to address Indian water rights. Hoover suggested an alternative the original provision that failed had failed to get approval from Wyoming’s Frank Emerson. Hoover’s new article read “Nothing in this compact shall be construed as affecting the obligations of the United States to Indian tribes.” The term “rights” had been removed. This satisfied Emerson, but he still questioned the need to include the provision in the compact. Hoover responded that the article’s purpose was to remove a potential objection to the compact by Congress.

With the Indian article (now Article VII) passed, the Commission went on to the next subject, an article drafted by Steven Davis on remedies. After some wordsmithing the article passed (now Article IX) – “Nothing herein contained shall be construed to prevent or limit any state from initiating and maintaining any action or proceeding legal or equitable for the protection of any right under this compact, or the enforcement of any of the provisions thereof.”  This short discussion was the closest the Commission ever got to discussing what today is commonly referred to as a “compact call.”

Protecting Imperial

After a bit more discussion of subsidiary articles, California’s W. F. McClure, its commissioner and state engineer, asked Hoover if he could raise an issue he considered “very vital.” Of the seven state commissioners, McClure had until now, been the quietest, rarely participating in the active dialogue. Now he needed their attention. He went on to say that his constituents in California understood the need for a legal document allocating water between the divisions, but there was a similar need for the basin states to support the construction of a storage reservoir to protect the Imperial Valley from flooding. McClure reiterated his request that the compact not become effective until the construction of “a dam to be built in Boulder Canyon.” For the Californians, especially the large contingent from the Imperial Valley, storage was their core issue. The upper river states had now twice blocked the Congressional authorization of storage because there was no compact protecting their rights. Now they feared the Upper Basin states would get their compact but leave California hanging with no assurance that they would support the Boulder Canyon Project. It was a difficult problem. The individual commissioners or for that matter, their governors, or their local legislators had little control over what Congress might do.

Colorado’s Delph Carpenter was unmoved. He again expressed his conceptual support for the construction of storage to protect the Imperial Valley but refused to accept a provision that would make the compact contingent upon the construction of storage. This time he had the full support of his three upper river colleagues. Carpenter offered a resolution from the Commission as an alternative. From the first meeting of the Commission ten months ago, Hoover had been an advocate for including storage in the compact, but Colorado’s Carpenter had been just as consistent in his opposition to it. Now, as they were close to completing their task of writing a compact, it was time to end the verbal debate and find a practical way to deal with the issue that would allow the compact to be ratified by all seven state legislatures.

Hoover then planted the seeds for a potential path forward, pointing out that the Imperial Irrigation District had existing perfected water rights. Under the recent Laramie River case, they might be entitled to what he called a minimum flow. He added “they feel that this pact will destroy any rights which they have for the maintenance of minimum flows.” The implication was that the compact would protect water users in the upper river that now had rights junior to the Imperial Valley with or without storage, but only storage would protect the Imperial Valley. The solution to this problem might be a general agreement on a legal principle that the compact could not impact or impair rights that existed before the compact until storage was built. In Hoover’s view this would generate significant pressure on the Upper Basin to support the Boulder Canyon Project. During the discussion Hoover warned the others that “unless these people are given some protection, they will suspend confirmation of this compact.” The matter was left unresolved, but the door was left open after Hoover’s suggested that New Mexico’s Steven Davis draft language, which McClure agreed to.

Arizona’s lingering questions

The Commission then turned to Arizona’s Winfield Norviel’s concerns with Article III, the apportionment provision. He was now more convinced that 7.5 million acre-feet was not enough for the Lower Basin. Hoover reminded the commissioners that they had concluded they did not have sufficient data to make “an equitable division of the waters” thus, “there should be made by us a preliminary division to be followed by a revision at some subsequent date.” Norviel responded that based on the information they did have from the table prepared by Reclamation’s Arthur Powell Davis, the annual needs of the Upper Basin were 6.5 million and for the Lower Basin 7.68 million, which included the Gila and Little Colorado Rivers. Therefore, the split should be 44.5% for Upper Basin and 55.5% for the Lower Basin.

Note for the reader: The Minutes do not include the table that Norviel was referring to. Elsewhere in the minutes Davis estimated that the Lower Basin’s uses would total 7.45 million acre-feet per year including the Lower Basin tributaries. He also estimated that evaporative losses on a Boulder Canyon Project (Lake Mead) would be 240,000 acre-feet per year, a total of 7.69 million. The problem is that his 240,000 acre-feet estimate is far too low. Evaporation off a full Lake Mead is closer to a million acre-feet per year. Figures from the Fall-Davis Report which Davis often used as the technical resource for the negotiations, show the total Lower Basin evaporation could have been up to 1.5 million acre-feet per year on the Boulder Canyon, Bullhead (now Davis Dam), and Parker Dam- all three reservoirs (or their predecessors) were included in the technical section of the report. Whether Davis was simply mistaken or intentionally low-balled the estimate is a matter of speculation, but the implications remain with us today. Not considering the evaporation data that was available has contributed to the overuse of water in the Lower Basin.

Attributing the proposal to Nevada’s James Scrugham, Hoover described four options the Commission should consider:

• Stay with a permanent 7.5 million acre-feet appropriation limit for each basin which includes present and future uses, if this is not enough for the Lower Basin, a future commission can deal with it during the next apportionment round. Norviel was already on the record as opposed to this one.
• Limit each Basin to 8.5 million acre-feet, and during the next round, the basin with the lesser development would be given a preferential right to develop up to 8.5 million. The next round would only apportion the remainder over 17 million acre-feet.
• Limit each Basin to 8.5 million acre-feet, during the next round if a basin had not reached 8.5 million acre-feet, the amount not being used over 7.5 million would be available to either basin.
• Limit each basin to 7.5 million acre-feet but allow the Lower Basin to increase its use by one million acre-feet per year for a total of 8.5 million. The amount available for apportionment in the next round would be the water available over 16 million (plus any water provided to Mexico).

Hoover suggested that the Lower Basin caucus first and decide which alternative they preferred then take that to the Upper Basin. He also appointed a small drafting committee to put each option into compact language.

Hoover adjourned the meeting but did not set a time and date for the next regular meeting. He knew for at least the next day he would be very busy working with each caucus. Plus, he would need to meet with some very upset Californians.