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APPENDIX B
TO: Ival V. Goslin, Engineer-Secretary FROM: Paul L. Billhymer, Legal Council
SUBJECT: Preliminary Memorandum on Fish and Wildlife Water Uses.
Prior to considering some of the issues which are presented by the question of fish and wildlife water uses, we should eliminate some of the issues which can be raised.
First: We shall not consider whether an appropriation can be made for a fish and wildlife use within each particular State of the Upper Basin.
We have not considered this problem because this is a particular local law problem which involves to some extent local policy. Any answer to this question, if there is a question, therefore, should come from an official state source. We would suggest, therefore, that such answer should come from the Attorney General of the particular States.
Second: We shall not consider the question of whether the Federal Government is required to make a State appropriation for this type of use.
This question presents the whole question of Federal-State relation with respect to water law. It has been the subject of continuous debate for the last fifty years, and solution satisfactory to both sides as yet has not been found. Further comment hardly will aid in this solution, so we are avoiding the issue.
Third: We are not considering the legal position which the Upper Colorado River Commission should or can take in this matter.
We have avoided this question because, we are not sure that the Commission should take any position on this particular issue for the reason that a clear cut issue has not as yet really been formulated.
It sometimes leads to difficulty· when a position is taken on any issue where such issue is not clearly present. Also it is possible that the question is a local law matter and, thus, something which is no concern of the Commission.
QUESTION:
Is the use of water for fish and wildlife such as to come within "beneficial consumptive use" of water under the terms of the law of the river?
It is always to be remembered that an answer to any question with reference to a particular water use must be determined in the light of who is raising the issue. This is particularly true within the Colorado River Basin. The reasons for this rests upon the following:
I. There is the Colorado River Compact which divided the river into two parts. It creates rights as between basins, which may influence the answer to a particular question concerning the particular use of water.
2. The Upper Colorado River Basin Compact may determine the issue if it is raised as between the Upper Basin States.
Apparently this problem arises from the fact that fish and wildlife benefits are now determined to be a part of the benefits to be derived from projects. These are now important in the benefit:cost ratio feasibility determinations. It thus becomes important to consider the relationship of these types of water uses with the other water uses on the various projects.
One approach to the problem can be made by assuming that actually this is really a local problem to be determined according
to local state law. Excellent arguments can be made for this approach. I. The Upper Basin States have settled, by
Compact, the allotment which each State is to have from the Upper Basin share of the Colorado River.
2. The Upper Colorado River Basin Compact contains the following provision:
"Article XV:
(b) The provisions of this Compact shall not apply to or interfere with the right or power of any signatory State to regulate within its boundaries the appropriation, use and control of water, the consumptive use of which is apportioned and available to such State by this Compact."
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Thus Article XV (b), provides that each state is to determine the uses to which its share may be put. So long as the use is within its share, no other state in the Upper Basin can complain.
3. Since it is a local law problem, there is no
reason to determine into what classification the
use falls.
4. The method of acquisition and character of the use is dependent upon the local law wherein the
use will be made.
5. This seems to be the proper answer to the question, if the issue is raised by any Upper Basin State.
This method of answer may be subject to certain defects if the issue is raised by a Lower Basin State, which call for consideration.
1. The Upper Colorado River Basin Compact being subject to the Colorado River Compact,
(See Article I (b) Upper Colorado River Basin Compact), does not bind any Lower Basin State.
2. The Colorado River Compact must be con-sidered in determining whether use of fish and wildlife are solely the consideration of local law. The provision of this Compact which re-quires consideration is:
"Article II (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
elec-trical power." (Note the same wording appears in
Article II (m) Upper Colorado River Basin Compact.) 3. In considering fish and wildlife uses I we must remember that some of the uses which would be classified as fish and wildlife uses are in reality II
agricultural uses 11
• These occur because water is diverted for the irrigation of feed crops for wildlife. The other fish and wildlife uses generally are of the
type of furnishing habitats. ThCJre should be no
ques-tion concerning the uses which fall within the
"agri-cultural uses".
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The obvious question is presented as to whether use of water for other types of fish and wildlife purposes comes within the definition
of II
domestic use" as defined by the Colorado River Compact. It should first be noted that the Colorado River Compact as well as the Upper
Colorado River Basin Compact defines domestic use in a particular manner. Defining the term in such broad language apparently was for the purpose of setting up "the relative importance of the different beneficial uses of water." The definition given to "domestic use" is much broader than that commonly found in western water law. Actually the term "domestic use" has received more attention in cases involving riparian rights. Hutchins Selected Prob-lems In the Law of Water Rights in the West. Misc. Pub. No. 418, p. 320,
et seq. In Western states where consideration has been given the term,
it is usually with reference to statutory preferences in the use of water. Hutchins, supra, P. 337, et seq. As generally used, "domestic use" in-cludes only household uses and water for domestic animals. As Hutchins
points out, supra, 320, there are minor variations in the definition of "domestic use" , but in no case has the term ever been so broadly defined as in these two Compacts.
4. The prime question thus, is the meaning of
II
other like purposes" , particularly, are non-agricultural fish and wildlife uses included within this part of the definition of "domestic
uses".
As has already been pointed out above, the Compact definition of "domestic use" is special for the compact alone. It is far more ex-tensive than the commonly accepted definition as used in the western states preference statutes and defined by the riparian cases which have been called upon to define the term "domestic use". In this Compact definition of "domestic use", we have not only a recognized use under this term, namely, household use, but, also other use classifications
each of which generally in western water law head a separate classification. The use of water for "stock, municipal, mining, milling and industrial" pur-poses are usually separate water use categories. These are classifications for which appropriations are made in the same manner as for agricultural uses.
A proper question would be, why was "domestic use" so expanded in meaning by the framers of the Compact? It is interesting to examine the reports of the various Compact Commissioners to determine the
pur-pose for the definition given 11
domestic use11
• Not all of the Commissioners
commented on that part of the Compact. Judge Sloan of Arizona stated:
"The preferential uses recognized by the pact, are agricultural, domestic (which is defined to include
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and other like purposes), power and navigation. Agriculture and domestic uses are placed on a parity and given the first place in the order of preferential right of use. This is in harmony with the law of our own state and also with the law of every state in the basin. It is in harmony with the prevailing sentiment of the people of this country. The Com-mission, therefore, in giving preference to agri-culture and domestic use over power merely recog-nized existing laws and the overwhelming public opinion on the subject that lies back of the law. 11
(Appendix 208 page A- 64. House Document 717, 80th Congress, 2d Session).
It is apparent from this statement that Judge Sloan did not consider it necessary to explain the expanded definition of "domestic use". He was more interested in explaining the preferences of the various uses of water.
Mr. Carpenter of Colorado in his first Report to the Colorado Legis-lature also was more concerned with the explanation of the preferences set up than with an explanation of the definition of "domestic use" (See Appendix
210, pageA-79, House Document 717, 80thCongress, 2dSession). Mr. Caldwell of Utah made the following explanation for the Utah Legislature:
"This Compact is a departure in several things. It distinguishes between different classes of rights and attempts to relegate each right to its appropriate relative position. Water rights for agriculture, including water rights for industrial, domestic, municipal, and culinary purposes, and excluding water rights for the development of elec-tric power, are dominant as between the Upper Basin and the Lower Basin. Water rights for power purposes are secondary to the dominant rights and navigation is made subservient to all rights on the river • . .
"4th Agricultur~ is made paramount, the development of electric power secondary ancl navi-gation subservient on the Colorado River." (Appendix 213, pp. A-117 and 118, House Document 717, supra). Mr. Caldwell apparently takes the position that agriculture in-cludes the uses as defined under domestic use. He is most interested in explaining the preferences given to agriculture and this may explain the lack of comment on "domestic use" and also the inclusion of the defined domestic uses in with agricultural uses in the explanation.
-5-Mr. Emerson of Wyoming, in his Report to the Governor and Legislature of Wyoming, made the following statement:
"Article II is devoted to terminology and contains definitions used in the Compact, as well
as setting forth the uses of water that shall be in-cluded under the head of "domestic use" • The several definitions, and the statement concerning domestic use, allow simplification as to verbiage and (sic) repetition in the Compact that might well
have otherwise been confusing."
{Appendix 214, p. A-125, House Document 717 supra).
Mr. Emerson shows that the term II
domestic use" was expanded in order to cut the ver•bi.age in the Compact. The Commissioners in the
pre-ference provision as to water uses merely needed an all-inclusive term
other than agriculture and power to cover the many ways in which water had been put to beneficial use. In order to simplify the Compact, "domestic use" was defined so as to include these various uses. In order not to limit the defined term to only those named in the definition, there was added the words "and other like purposes" .
These words could only have been inserted to cover the other unnamed beneficial uses of water by man exclusive of power. The Commissioners were aware of the fact that they were engaged in a task which would involve the whole future of a great water basin. They certainly would not have limited the water uses to only those named specifically under "domestic use" to-gether with agriculture as having a preference over power. So far as the preferences of uses are concerned, stress is placed on the use of water by man rather than storage for power purposes.
There does not seem to be any other conclusion than that any bene-ficial use of water by man's activities, except power production, comes
with-in II
domestic use" as "other like purposes 11
• Fish and wildlife uses which
do not come within agricultural uses would come within "other like purposes 11
•
Perhaps this would also be the place to add one more note. If the fish and wildlife uses were to be those of the Federal Government, the claim of the Federal Government might well be that the uses which it is making are
actually to fulfill treaty obligations--particularly where the uses are for wild fowl. The Department of Justice made this claim in the present pending Arizona v. California, et al. This would certainly change the issue basin vs. basin. In view of Article VII Upper Colorado River Compact, it would not make any difference as between Upper Basin States.
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,.CONCLUSION:
1. If the issue is raised in the Upper Basin, the answer
is to be found in the local law of each state where the proposed use is to be made.
2. If the issue is raised basin vs. basin, this use falls
within "other like uses" of Article II (h) of the Colorado River Compact and is a preferred use not subject to
question so long as it is accounted for under III (a).
