The state of New Mexico does hereby ratify, approve and adopt the compact aforesaid which is as follows:

LA PLATA RIVER COMPACT

The state of Colorado and the state of New Mexico, desiring to provide for the equitable distribution of the waters of the La Plata river, and to remove all causes of present and future controversy between them with respect thereto and being moved by considerations of interstate comity, pursuant to acts of their respective legislatures, have resolved to conclude a compact for these purposes and have named as their commissioners:

Delph E. Carpenter, for the state of Colorado; and

Stephen B. Davis, Jr., for the state of New Mexico;

who have agreed upon the following articles:

ARTICLE I

The state of Colorado, at its own expense, shall establish and maintain two permanent stream-gaging stations upon the La Plata river for the purpose of measuring and recording its flow, which shall be known as the Hesperus station and the Interstate station, respectively.

The Hesperus station shall be located at some convenient place near the village of Hesperus, Colorado. Suitable devices for ascertaining and recording the volume of all diversions from the river above Hesperus station, shall be established and maintained (without expense to the state of New Mexico), and whenever in this compact [this section] reference is made to the flow of the river at Hesperus station, it shall be construed to include the amount of the concurrent diversions above said station.

The Interstate station shall be located at some convenient place within one mile of, and above or below, the interstate line. Suitable devices for ascertaining and recording the volume of water diverted by the Enterprise and Pioneer canals, now serving approximately equal areas in both states, shall be established and maintained (without expense to the state of New Mexico), and whenever in this compact reference is made to the flow of the river at the Interstate station, it shall be construed to include one-half the volume of the concurrent diversions by such canals, and also the volume of any other water which may hereafter be diverted from said river in Colorado for use in New Mexico.

Each of said stations shall be equipped with suitable devices for recording the flow of water in said river at all times between the 15th day of February and the 1st day of December of each year. The state engineers of the signatory states shall make provision for cooperative gaging at the two stations, for the details of the operation, exchange of records and data, and publication of the facts.

ARTICLE II

The waters of the La Plata river are hereby equitably apportioned between the signatory states, including the citizens thereof, as follows:

1. at all times between the 1st day of December and the 15th day of the succeeding February, each state shall have the unrestricted right to the use of all water which may flow within its boundaries;

2. by reason of the usual annual rise and fall, the flow of said river between the 15th day of February and the 1st day of December of each year, shall be apportioned between the states in the following manner:

(a) each state shall have the unrestricted right to use all the waters within its boundaries on each day when the mean daily flow at the Interstate station is one hundred cubic feet per second, or more;

(b) on all other days the state of Colorado shall deliver at the Interstate station a quantity of water equivalent to one-half of the mean flow at the Hesperus station for the preceding day, but not to exceed one hundred cubic feet per second;

3. whenever the flow of the river is so low that in the judgment of the state engineers of the states, the greatest beneficial use of its waters may be secured by distributing all of its waters successively to the lands in each state in alternating periods, in lieu of delivery of water as provided in the second paragraph of this article, the use of the waters may be so rotated between the two states in such manner, for such periods, and to continue for such time as the state engineers may jointly determine;

4. the state of New Mexico shall not at any time be entitled to receive nor shall the state of Colorado be required to deliver any water not then necessary for beneficial use in the state of New Mexico;

5. a substantial delivery of water under the terms of this article shall be deemed a compliance with its provisions and minor and compensating irregularities in flow or delivery shall be disregarded.

ARTICLE III

The state engineers of the states by agreements, from time to time, may formulate rules and regulations for carrying out the provisions of this compact, which, when signed and promulgated by them, shall be binding until amended by agreement between them or until terminated by written notice from one to the other.

ARTICLE IV

Whenever any official of either state is designated to perform any duty under this compact [this section], such designation shall be interpreted to include the state official or officials upon whom the duties now performed by such official may hereafter devolve.

ARTICLE V

The physical and other conditions peculiar to the La Plata river and the territory drained and served thereby constitute the basis for this compact, and neither of the signatory states concedes the establishment of any general principle or precedent by the concluding of this compact.

ARTICLE VI

This compact may be modified or terminated at any time by mutual consent of the signatory states and upon such termination all rights then established hereunder shall continue unimpaired.

ARTICLE VII

This compact shall become operative when approved by the legislature 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 state to the governor of the other state and the president of the United States is requested to give notice to governors of the signatory states of approval by the congress of the United States.

In witness whereof, the commissioners have signed this compact in duplicate originals, one of which shall be deposited with the secretary of state of each of the signatory states.

Done at the city of Santa Fe, in the state of New Mexico, this twenty-seventh day of November, in the year of our Lord, one thousand nine hundred twenty-two.

DELPH E. CARPENTER

STEPHEN B. DAVIS, JR.

History: 1978 Comp., § 72-15-16, enacted by Laws 1923, ch. 7, § 1.

Compiler's notes. — The La Plata River Compact was ratified by Colorado by Laws 1923, ch. 191, approved April 13, 1923; it was subsequently approved by congress by Act of January 29, 1925, 43 Stat. 796.

Validity of compact. — Judicial or quasi-judicial decision of controverted claims is not essential to validity of compact adjusting them. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S. Ct. 803, 82 L. Ed. 1202 (1938), overruled by People ex rel. Simpson v. Highland Irrigation Co., 917 P.2d 1242 (Colo. 1996) and superseded by statute, Int'l Paper Co. v. Ouellette, 479 U.S. 481, 107 S. Ct. 805, 93 L. Ed 2d 883 (1987) (The Clean Water Act).

Right of upper state to control of interstate stream denied. — Claim that on interstate streams upper state has such ownership or control of whole stream as entitles it to divert all water, regardless of injury or prejudice to lower state, has been consistently denied by supreme court. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S. Ct. 803, 82 L. Ed. 1202 (1938), overruled by People ex rel. Simpson v. Highland Irrigation Co., 917 P.2d 1242 (Colo. 1996) and superseded by statute, Int'l Paper Co. v. Ouellette, 479 U.S. 481, 107 S. Ct. 805, 93 L. Ed 2d 883 (1987) (The Clean Water Act).

Equitable apportionment between states required. — As La Plata river flows from Colorado into New Mexico and in each state the water is used beneficially, it must be equitably apportioned between the two. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S. Ct. 803, 82 L. Ed. 1202 (1938), overruled by People ex rel. Simpson v. Highland Irrigation Co., 917 P.2d 1242 (Colo. 1996) and superseded by statute, Int'l Paper Co. v. Ouellette, 479 U.S. 481, 107 S. Ct. 805, 93 L. Ed 2d 883 (1987) (The Clean Water Act).

Compact's apportionment binding on citizens of states party to compact. — Whether apportionment of water of interstate stream be made by compact between upper and lower states with consent of congress or by decree of supreme court, apportionment is binding upon citizens of each state and all water claimants, even where the state had granted water rights before it entered into the compact. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S. Ct. 803, 82 L. Ed. 1202 (1938), overruled by People ex rel. Simpson v. Highland Irrigation Co., 917 P.2d 1242 (Colo. 1996) and superseded by statute, Int'l Paper Co. v. Ouellette, 479 U.S. 481, 107 S. Ct. 805, 93 L. Ed 2d 883 (1987) (The Clean Water Act).

Colorado decree could not confer rights in excess of Colorado's share of water of the stream, which share was only an equitable portion thereof. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S. Ct. 803, 82 L. Ed. 1202 (1938), overruled by People ex rel. Simpson v. Highland Irrigation Co., 917 P.2d 1242 (Colo. 1996) and superseded by statute, Int'l Paper Co. v. Ouellette, 479 U.S. 481, 107 S. Ct. 805, 93 L. Ed 2d 883 (1987) (The Clean Water Act).

Compact not considered United States treaty or statute. — Assent of congress to compact between Colorado and New Mexico does not make it a "treaty or statute of the United States" within meaning of § 237(a) of Judicial Code [28 U.S.C. 1257(1)]. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S. Ct. 803, 82 L. Ed. 1202 (1938), overruled by People ex rel. Simpson v. Highland Irrigation Co., 917 P.2d 1242 (Colo. 1996) and superseded by statute, Int'l Paper Co. v. Ouellette, 479 U.S. 481, 107 S. Ct. 805, 93 L. Ed 2d 883 (1987) (The Clean Water Act).

Federal common law to govern interstate stream apportionment. — Whether water of interstate stream must be apportioned between two states is question of "federal common law" upon which neither statute nor decisions of either state can be conclusive. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S. Ct. 803, 82 L. Ed. 1202 (1938), overruled by People ex rel. Simpson v. Highland Irrigation Co., 917 P.2d 1242 (Colo. 1996) and superseded by statute, Int'l Paper Co. v. Ouellette, 479 U.S. 481, 107 S. Ct. 805, 93 L. Ed 2d 883 (1987) (The Clean Water Act).

United States supreme court's jurisdiction. — In holding that state engineer and his subordinates should be enjoined from taking action required by compact, Colorado court denied an important claim under the constitution which may be reviewed on certiorari by supreme court under § 237(b) [28 U.S.C. 1257(3)]. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S. Ct. 803, 82 L. Ed. 1202 (1938), overruled by People ex rel. Simpson v. Highland Irrigation Co., 917 P.2d 1242 (Colo. 1996) and superseded by statute, Int'l Paper Co. v. Ouellette, 479 U.S. 481, 107 S. Ct. 805, 93 L. Ed 2d 883 (1987) (The Clean Water Act).

Jurisdiction over controversies concerning rights in interstate streams is not different from those concerning boundaries, which have been recognized as presenting federal questions. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 58 S. Ct. 803, 82 L. Ed. 1202 (1938), overruled by People ex rel. Simpson v. Highland Irrigation Co., 917 P.2d 1242 (Colo. 1996) and superseded by statute, Int'l Paper Co. v. Ouellette, 479 U.S. 481, 107 S. Ct. 805, 93 L. Ed 2d 883 (1987) (The Clean Water Act).

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).

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.