NM Stat § 72-15-5 (2021)
2021 New Mexico Statutes|Chapter 72 - Water Law|Article 15 - Interstate Compacts|Section 72-15-5 - [Colorado River Compact.]

The state of New Mexico does hereby ratify, approve and adopt the compact aforesaid, which is as follows: COLORADO RIVER COMPACT Signed at Santa Fe, New Mexico, November 24, 1922. ________ COLORADO RIVER COMMISSION, Herbert Hoover, chairman. W.S. Norveil, commissioner for the state of Arizona. W.F. McClure, commissioner for the state of California. Delph E. Carpenter, commissioner for the state of Colorado. J.G. Scrugham, commissioner for the state of Nevada. Stephen B. Davis, Jr., commissioner for the state of New Mexico. R.E. Caldwell, commissioner for the state of Utah. Frank C. Emerson, commissioner for the state of Wyoming. Clarence C. Stetson, executive secretary, department of commerce, Washington, D. C. ________ COLORADO RIVER COMPACT The states of Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming, having resolved to enter into a compact under the act of the congress of the United States of America, approved August 19, 1921 (42 Statutes at Large, page 171) and the acts of legislatures of the said states, have, through their governors, appointed as their commissioners: W. S. Norveil for the state of Arizona, W. F. McClure for the state of California, Delph E. Carpenter for the state of Colorado, J. G. Scrugham for the state of Nevada, Stephen B. Davis, Jr., for the state of New Mexico, R. E. Caldwell for the state of Utah, Frank C. Emerson for the state of Wyoming, who, after negotiations participated in by Herbert Hoover, appointed by the president as the representative of the United States of America, have agreed upon the following articles: ARTICLE I The major purposes of this compact [this section] are to provide for the equitable division and apportionment of the use of the waters of the Colorado river system; to establish the relative importance of different beneficial uses of water; to promote interstate comity; to remove causes of present and future controversies; and to secure the expeditious agricultural and industrial development of the Colorado river basin, the storage of its waters and the protection of life and property from floods. To these ends the Colorado river basin is divided into two basins, and an apportionment of the use of part of the water of the Colorado river system is made to each of them with the provision that further equitable apportionments may be made. ARTICLE II As used in this compact: (a) the term "Colorado river system" means that portion of the Colorado river and its tributaries within the United States of America; (b) the term "Colorado river basin" means all of the drainage area of the Colorado river system, and all other territory within the United States of America to which the waters of the Colorado river system shall be beneficially applied; (c) the term "states of the upper division" means the states of Colorado, New Mexico, Utah and Wyoming; (d) the term "states of the lower division" means the states of Arizona, California and Nevada; (e) the term "Lee Ferry" means a point in the main stream of Colorado river one mile below the mouth of the Paria river; (f) the term "upper basin" means those parts of the states of Arizona, Colorado, New Mexico, Utah and Wyoming within and from which waters naturally drain into the Colorado river system above Lee Ferry, and also all parts of said states located without the drainage area of the Colorado river system which are now or shall hereafter be beneficially served by waters diverted from the system above Lee Ferry; (g) the term "lower basin" means those parts of the states of Arizona, California, Nevada, New Mexico and Utah within and from which waters naturally drain into the Colorado river system below Lee Ferry, and also all parts of said states located without the drainage area of the Colorado river system which are now or shall hereafter be beneficially served by waters diverted from the system below Lee Ferry; (h) the term "domestic use" shall include the use of water for household, stock, municipal, mining, milling, industrial and other like purposes, but shall exclude the generation of electrical power. ARTICLE III (a) There is hereby apportioned from the Colorado river system in perpetuity to the upper basin and to the lower basin, respectively, the exclusive beneficial consumptive use of 7,500,000 acre-feet of water per annum, which shall include all water necessary for the supply of any rights which may now exist. (b) In addition to the apportionment in Paragraph (a), the lower basin is hereby given the right to increase its beneficial consumptive use of such waters by one million acre-feet per annum. (c) If, as a matter of international comity, the United States of America shall hereafter recognize in the United States of Mexico any right to the use of any waters of the Colorado river system, such waters shall be supplied first from the waters which are surplus over and above the aggregate of the quantities specified in Paragraphs (a) and (b); and if such surplus shall prove insufficient for this purpose, then, the burden of such deficiency shall be equally borne by the upper basin and the lower basin, and whenever necessary the states of the upper division shall deliver at Lee Ferry water to supply one-half of the deficiency so recognized in addition to that provided in Paragraph (d). (d) The states of the upper division will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre-feet for any period of ten consecutive years reckoned in continuing progressive series, beginning with the first day of October next succeeding the ratification of this compact. (e) The states of the upper division shall not withhold water, and the states of the lower division shall not require the delivery of water, which cannot reasonably be applied to domestic and agricultural uses. (f) Further equitable apportionment of the beneficial uses of the waters of the Colorado river system unapportioned by Paragraphs (a), (b) and (c) may be made in the manner provided in Paragraph (g) at any time after October first, 1963, if and when either basin shall have reached its total beneficial consumptive use as set out in Paragraphs (a) and (b). (g) In any event of a desire for a further apportionment as provided in Paragraph (f) any two signatory states, acting through their governors, may give joint notice of such desire to the governors of the other signatory states and to the president of the United States of America, and it shall be the duty of the governors of the signatory states and of the president of the United States of America forthwith to appoint representatives, whose duty it shall be to divide and apportion equitably between the upper basin and lower basin the beneficial use of the unapportioned water of the Colorado river system as mentioned in Paragraph (f), subject to the legislative ratification of the signatory states and the congress of the United States of America. ARTICLE IV (a) Inasmuch as the Colorado river has ceased to be navigable for commerce and the reservation of its waters for navigation would seriously limit the development of its basin, the use of its waters for purposes of navigation shall be subservient to the uses of such waters for domestic, agricultural and power purposes. If the congress shall not consent to this paragraph, the other provisions of this compact shall nevertheless remain binding. (b) Subject to the provisions of this compact, water of the Colorado river system may be impounded and used for the generation of electrical power, but such impounding and use shall be subservient to the use and consumption of such water for agricultural and domestic purposes and shall not interfere with or prevent use for such dominant purposes. (c) The provisions of this article shall not apply to or interfere with the regulation and control by any state within its boundaries of the appropriation, use and distribution of water. ARTICLE V The chief official of each signatory state charged with the administration of water rights, together with the director of the United States reclamation service and the director of the United States geological survey shall cooperate, ex officio: (a) to promote the systematic determination and coordination of the facts as to flow, appropriation, consumption and use of water in the Colorado river basin, and the interchange of available information in such matters; (b) to secure the ascertainment and publication of the annual flow of the Colorado river at Lee Ferry; (c) to perform such other duties as may be assigned by mutual consent of the signatories from time to time. ARTICLE VI Should any claim or controversy arise between any two or more of the signatory states: (a) with respect to the waters of the Colorado river system not covered by the terms of this compact [this section]; (b) over the meaning or performance of any of the terms of this compact; (c) as to the allocation of the burdens incident to the performance of any article of this compact or the delivery of waters as herein provided; (d) as to the construction or operation of works within the Colorado river basin to be situated in two or more states, or to be constructed in one state for the benefit of another state; or (e) as to the diversion of water in one state for the benefit of another state; the governors of the states affected, upon the request of one of them, shall forthwith appoint commissioners with power to consider and adjust such claim or controversy, subject to ratification by the legislatures of the states so affected. Nothing herein contained shall prevent the adjustment of any such claim or controversy by any present method or by direct future legislative action of the interested states. ARTICLE VII Nothing in this compact shall be construed as affecting the obligations of the United States of America to Indian tribes. ARTICLE VIII Present perfected rights to the beneficial use of waters of the Colorado river system are unimpaired by this compact. Whenever storage capacity of 5,000,000 acre-feet shall have been provided on the main Colorado river within or for the benefit of the lower basin, then claims of such rights, if any, by appropriators or users of water in the lower basin against appropriators or users of water in the upper basin shall attach to and be satisfied from water that may be stored not in conflict with Article III. All other rights to beneficial use of waters of the Colorado river system shall be satisfied solely from the water apportioned to that basin in which they are situate. ARTICLE IX Nothing in this compact shall be construed to limit or prevent any state from instituting or maintaining any action or proceeding, legal or equitable, for the protection of any right under this compact or the enforcement of any of its provisions. ARTICLE X This compact may be terminated at any time by the unanimous agreement of the signatory states. In the event of such termination all rights established under it shall continue unimpaired. ARTICLE XI This compact shall become binding and obligatory when it shall have been approved by the legislatures of each of the signatory states and by the congress of the United States. Notice of approval by the legislatures shall be given by the governor of each signatory state to the governors of the other signatory states and to the president of the United States, and the president of the United States is requested to give notice to the governors of the signatory states of approval by the congress of the United States. In witness whereof, the commissioners have signed this compact in a single original, which shall be deposited in the archives of the department of state of the United States of America and of which a duly certified copy shall be forwarded to the governor of each of the signatory states. Done at the city of Santa Fe, New Mexico, this twenty-fourth day of November, A. D. one thousand nine hundred and twenty-two. W. S. NORVEIL. W. F. McCLURE. DELPH E. CARPENTER. J. G. SCRUGHAM. STEPHEN B. DAVIS, JR. R. E. CALDWELL. FRANK C. EMERSON. Approved: HERBERT HOOVER. History: 1978 Comp., § 72-15-5, enacted by Laws 1923, ch. 6, § 1. ANNOTATIONSCompiler's notes. — Laws 1921, ch. 221, §§ 1 to 8, provided for the appointment of a New Mexico representative on the joint commission for negotiation of a compact and agreement on the distribution of waters of the Colorado river between the states of Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming. The executed Colorado River Compact, dated November 24, 1922, was ratified by New Mexico in Laws 1923, ch. 6, §§ 1 to 4; the text of the compact is set forth in § 1. The state of Arizona failed to ratify the compact and provisions as to ratification and approval contained in the original compact were required to be waived by the other signatory states. See Laws 1925, ch. 78, §§ 1 to 3. The Colorado River Compact was finally proclaimed effective by the president of the United States, June 25, 1929. Arizona ratified in 1944. Cross references. — For Colorado River Compact modified, see 72-15-8, 72-15-9 NMSA 1978. Relation between Boulder Canyon Project and compact. — Boulder Canyon Project Act, 43 U.S.C. 617, by referring to the Colorado River Compact in several places, does make the compact relevant to a limited extent. The act explicitly approves the compact and thereby fixes a division of the waters between the basins which must be respected. The act also refers to terms contained in the compact. For example, § 12 of the act adopts the compact definition of "domestic," and § 6 requires satisfaction of "present perfected rights" as used in the compact. Therefore, those particular terms, though originally formulated only for the compact's allocation of water between basins, are incorporated into the act and are made applicable to the project act's allocation among lower basin states. Ariz. v. Cal., 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542, reh'g denied, 375 U.S. 892, 84 S. Ct. 144, 11 L. Ed. 2d 122 (1963). Authority conferred in the Boulder Canyon Project Act is stated to be "subject to the Colorado River Compact," and that instrument makes improvement of navigation subservient to all other purposes. But specific statement of primary purpose in the act governs the general references to the compact. Ariz. v. Cal., 283 U.S. 423, 51 S. Ct. 522, 75 L. Ed. 1154 (1931). Boulder Canyon Project Act also declares that secretary of interior and United States in construction, operation and maintenance of dam and other works and in the making of contracts shall be subject to and controlled by the compact. Such references, unlike explicit adoption of terms, were used only to show that the act and its provisions were in no way to upset, alter or affect compact's congressionally approved division of water between basins. They were not intended to make the compact and its provisions control or affect the act's allocation among and distribution of water within the states of the lower basin. Ariz. v. Cal., 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542, reh'g denied, 375 U.S. 892, 84 S. Ct. 144, 11 L. Ed. 2d 122 (1963). By the Boulder Canyon Project Act, secretary of interior was authorized, subject to terms of the compact, to construct, operate and maintain a dam and incidental works at the present site of Boulder dam, with appurtenant hydro-electric plant, and to use and dispose of water stored above the dam for irrigation and for development of power. Ariz. v. Cal., 298 U.S. 558, 56 S. Ct. 848, 80 L. Ed. 1331 (1936). Secretary of interior and his permittees, licensees and contractees are subject to the compact, § 8(a), and therefore can do nothing to upset or encroach upon the compact's allocation of Colorado river water between the upper and lower basins. Ariz. v. Cal., 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542, reh'g denied, 375 U.S. 892, 84 S. Ct. 144, 11 L. Ed. 2d 122 (1963). Arizona does not show that Article III(b) of the compact is relevant to an interpretation of § 4(a) of the Boulder Canyon Project Act, upon which she bases her claim of right. The act does not purport to apportion among states of the lower basin the waters to which the lower basin is entitled under the compact. The act merely places limits on California's use of waters under Article III(a) and of surplus waters; and it is "such" uses which are "subject to the terms of said compact." Ariz. v. Cal., 292 U.S. 341, 54 S. Ct. 735, 78 L. Ed. 1298 (1934). There can be no claim that Article III(b) of the compact is relevant in defining surplus waters under § 4(a) of the Boulder Canyon Project Act, for both Arizona and California apparently consider the waters under Article III(b) as apportioned. Ariz. v. Cal., 292 U.S. 341, 54 S. Ct. 735, 78 L. Ed. 1298 (1934). Compact immaterial to contemplated litigation. — The meaning of the compact, considered merely as a contract, can never be material in contemplated litigation, since Arizona refused to ratify the compact. Arizona rests her rights wholly upon the acts of congress and of California. Although Arizona claims that California's construction of § 4(a) of the Boulder Canyon Project Act, 45 Stat. 1057, would allow the latter state water which under the compact has been assigned to Arizona, and that a conflict is thus raised between statute and compact which the suggested testimony is competent to resolve, resolution of this alleged conflict can never be material to any case based on the compact considered as contract, since Arizona neither has nor claims any contractual right. Ariz. v. Cal., 292 U.S. 341, 54 S. Ct. 735, 78 L. Ed. 1298 (1934). Apportionment of river between upper and lower basins. — By the compact entered into by defendant states and approved by congress, but to which Arizona is not a party, undepleted flow of water of Colorado river is apportioned between the upper basin and the lower basin of the river valley, the point of division being Lee ferry, 23 miles below the southern boundary of Utah. To each basin there is apportioned 7,500,000 acre feet per annum and lower basin has additional right to increase its "beneficial consumptive use" of water by 1,000,000 feet per annum. Ariz. v. Cal., 298 U.S. 558, 56 S. Ct. 848, 80 L. Ed. 1331 (1936). Paragraph (a) of Article III of the compact apportions waters "from the Colorado river system," i.e., the Colorado and its tributaries, and (b) permits additional use "of such waters." The compact makes an apportionment only between the upper and lower basin, apportionment among states in each basin being left to later agreement. Ariz. v. Cal., 292 U.S. 341, 54 S. Ct. 735, 78 L. Ed. 1298 (1934). Provision of Article III(b) of the compact, like that of Article III(a) thereof, is entirely referable to the main intent of the compact, which was to apportion the waters as between the upper and lower basins. The effect of Article III(b) (at least in the event that the lower basin puts the 8,500,000 acre-feet of water to beneficial uses) is to preclude any claim by the upper basin that any part of the 7,500,000 acre-feet released at Lee ferry to the lower basin may be considered as "surplus" because of Arizona waters which are available to the lower basin alone. Ariz. v. Cal., 292 U.S. 341, 54 S. Ct. 735, 78 L. Ed. 1298 (1934). Apportionment among states in lower basin. — Fact that waters are solely useful to Arizona, or fact that they have been appropriated by her, does not contradict intent clearly expressed in Paragraph (b) of Article III of the compact (nor the rational character thereof) to apportion 1,000,000 acre-feet to states of the lower basin and not specifically to Arizona alone. Ariz. v. Cal., 292 U.S. 341, 54 S. Ct. 735, 78 L. Ed. 1298 (1934). Congress apparently expected that a complete apportionment of the waters among states of the lower basin would be made by the sub-compact it authorized Arizona, California and Nevada to make. Ariz. v. Cal., 292 U.S. 341, 54 S. Ct. 735, 78 L. Ed. 1298 (1934). Apportionment of the lower basin waters of the Colorado river is not controlled by either doctrine of equitable apportionment or by the compact. Ariz. v. Cal., 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542, reh'g denied, 375 U.S. 892, 84 S. Ct. 144, 11 L. Ed. 2d 122 (1963). Congress has provided its own method for allocating among lower basin states the mainstream water to which they are entitled under the compact. Where congress has so exercised its constitutional power over waters, courts have no power to substitute their own notions of "equitable apportionment" for apportionment chosen by congress. Ariz. v. Cal., 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542, reh'g denied, 375 U.S. 892, 84 S. Ct. 144, 11 L. Ed. 2d 122 (1963). Nothing in the compact purports to divide water among lower basin states nor in any way to affect or control any future apportionment among those states or any distribution of water within a state. Ariz. v. Cal., 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542, reh'g denied, 375 U.S. 892, 84 S. Ct. 144, 11 L. Ed. 2d 122 (1963). In Boulder Canyon Project Act, congress provides for apportionment among lower basin states of water allocated to that basin by the compact. Ariz. v. Cal., 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542, reh'g denied, 375 U.S. 892, 84 S. Ct. 144, 11 L. Ed. 2d 122 (1963). Arizona's ownership rights of portion of river. — On stretch of Colorado between Arizona and California, Arizona owns part of river bed that is east of the thread of the stream. Her jurisdiction in respect of apportionment, use and distribution of equitable share of waters flowing therein is unaffected by the compact or federal reclamation law. But title of the state is held subject to power granted to congress by the commerce clause, and under that clause congress has power to cause to be built a dam across the river in aid of navigation. U.S. v. Ariz., 295 U.S. 174, 55 S. Ct. 666, 79 L. Ed. 1371 (1935). Settlement of Indian water rights did not require Indian tribes to prove immediate beneficial use to quantify their water rights. — Where the Navajo Nation, the United States, and the state of New Mexico reached an agreement settling the Navajo Nation's claims to water in the San Juan river basin, and where federal legislation to approve and implement the settlement agreement was enacted by congress, and where the New Mexico legislature appropriated funds to pay New Mexico's cost of the settlement agreement and authorized the New Mexico state engineer to seek judicial approval regarding the state's share of the water, and where the district court approved the settlement agreement, concluding that the settlement agreement was fair, adequate, reasonable, and consistent with the public interests as well as all applicable laws, appellants' claim that the Navajo Nation was required to prove immediate beneficial use to quantify their water rights and that beneficial use is an essential requirement of every federal law governing the allocation of water was without merit, because Indian water rights are proprietary rights that have a priority date, the date of the creation of the reservation, but they are not dependent on the application of water to beneficial use. State ex rel. State Engineer v. San Juan Agricultural Water Users Ass'n, 2018-NMCA-053, cert. granted. Law reviews. — For article, "A Survey of the Evolution of Western Water Law in Response to Changing Economic and Public Interest Demands," see 29 Nat. Resources J. 347 (1989). For article, "Native American Water Rights: Efficiency and Fairness," see 29 Nat. Resources J. 763 (1989). Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters §§ 87, 310. 93 C.J.S. Waters §§ 170, 183, 188.