§ 37-69-101 — Arkansas River compact

Colorado § 37-69-101

• Jurisdiction: Colorado
• Title 37: Water and
• Art.: Arkansas River Compact

Text

The general assembly hereby ratifies
the compact between the state of Colorado and the state of Kansas designated as
the Arkansas river compact signed in the city of Denver, state of Colorado, on the
14th day of December, A. D. 1948, by Henry C. Vidal, Gail L. Ireland, and Harry B.
Mendenhall, commissioners for the state of Colorado, and George S. Knapp, Edward
F. Arn, William E. Leavitt, and Roland H. Tate, commissioners for the state of
Kansas, and approved by Hans Kramer, representative of the United States of
America. Said compact is as follows:

Arkansas River Compact

The state of Colorado and the state of Kansas, parties signatory to this
compact (hereinafter referred to as Colorado and Kansas, respectively, or
individually as a state, or collectively as the states) having resolved to conclude
a compact with respect to the waters of the Arkansas river, and being moved by
considerations of interstate comity, having appointed commissioners as follows:

Henry C. Vidal, Gail L. Ireland, and Harry B. Mendenhall, for Colorado; and
George S. Knapp, Edward F. Arn, William E. Leavitt, and Roland H. Tate, for Kansas;
and the consent of the congress of the United States to negotiate and enter into an
interstate compact not later than January 1, 1950, having been granted by Public
Law 34, 79th Congress, 1st Session, and pursuant thereto the President having
designated Hans Kramer as the representative of the United States, the said
commissioners for Colorado and Kansas, after negotiations participated in by the
representative of the United States, have agreed as follows:

Article I

The major purposes of this compact are to:

A. Settle existing disputes and remove causes of future controversy
between the states of Colorado and Kansas, and between citizens of one and
citizens of the other state, concerning the waters of the Arkansas river and their
control, conservation and utilization for irrigation and other beneficial purposes.

B. Equitably divide and apportion between the states of Colorado and Kansas
the waters of the Arkansas river and their utilization as well as the benefits arising
from the construction, operation and maintenance by the United States of John
Martin reservoir project for water conservation purposes.

Article II

The provisions of this compact are based on (1) the physical and other
conditions peculiar to the Arkansas river and its natural drainage basin, and the
nature and location of irrigation and other developments and facilities in connection
therewith; (2) the opinion of the United States supreme court entered December 6,
1943, in the case of Colorado v. Kansas (320 U. S. 383) concerning the relative
rights of the respective states in and to the use of waters of the Arkansas river; and
(3) the experience derived under various interim executive agreements between the
two states apportioning the waters released from the John Martin reservoir as
operated by the corps of engineers.

Article III

As used in this compact:

A. The word stateline means the geographical boundary line between
Colorado and Kansas.

B. The term waters of the Arkansas river means the waters originating in
the natural drainage basin of the Arkansas river, including its tributaries, upstream
from the stateline, and excluding waters brought into the Arkansas river basin from
other river basins.

C. The term stateline flow means the flow of waters of the Arkansas river
as determined by gauging stations located at or near the stateline. The flow as
determined by such stations, whether located in Colorado or Kansas, shall be
deemed to be the actual stateline flow.

D. John Martin reservoir project is the official name of the facility formerly
known as Caddoa reservoir project, authorized by the Flood Control Act of 1936, as
amended, for construction, operation and maintenance by the war department,
corps of engineers, later designated as the corps of engineers, department of the
army, and herein referred to as the corps of engineers. John Martin reservoir is
the water storage space created by John Martin dam.

E. The flood control storage is that portion of the total storage space in
John Martin reservoir allocated to flood control purposes.

F. The conservation pool is that portion of the total storage space in John
Martin reservoir lying below the flood control storage.

G. The ditches of Colorado water district 67 are those ditches and canals
which divert water from the Arkansas river or its tributaries downstream from John
Martin dam for irrigation use in Colorado.

H. The term river flow means the sum of the flows of the Arkansas and the
Purgatoire rivers into John Martin reservoir as determined by gauging stations
appropriately located above said reservoir.

I. The term the administration means the Arkansas river compact
administration established under article VIII.

Article IV

Both states recognize that:

A. This compact deals only with the waters of the Arkansas river as defined
in article III.

B. This compact is not concerned with the rights, if any, of the state of New
Mexico or its citizens in and to the use in New Mexico of waters of Trinchera creek
or other tributaries of the Purgatoire river, a tributary of the Arkansas river.

C. (1) John Martin dam will be operated by the corps of engineers to store and
release the waters of the Arkansas river in and from John Martin reservoir for its
authorized purposes.

(2) The bottom of the flood control storage is presently fixed by the chief of
engineers, U. S. Army, at elevation 3,851 feet above mean sea level. The flood
control storage will be operated for flood control purposes and to those ends will
impound or regulate the streamflow volumes that are in excess of the then
available storage capacity of the conservation pool. Releases from the flood control
storage may be made at times and rates determined by the corps of engineers to be
necessary or advisable without regard to ditch diversion capacities or requirements
in either or both states.

(3) The conservation pool will be operated for the benefit of water users in
Colorado and Kansas, both upstream and downstream from John Martin dam, as
provided in this compact. The maintenance of John Martin dam and appurtenance
works may at times require the corps of engineers to release waters then
impounded in the conservation pool or to prohibit the storage of water therein until
such maintenance work is completed. Flood control operation may also involve
temporary utilization of conservation storage.

D. This compact is not intended to impede or prevent future beneficial
development of the Arkansas river basin in Colorado and Kansas by federal or state
agencies, by private enterprise, or by combinations thereof, which may involve
construction of dams, reservoirs and other works for the purposes of water
utilization and control, as well as the improved or prolonged functioning of existing
works: Provided, that the waters of the Arkansas river, as defined in article III, shall
not be materially depleted in usable quantity or availability for use to the water
users in Colorado and Kansas under this compact by such future development or
construction.

Article V

Colorado and Kansas hereby agree upon the following basis of
apportionment of the waters of the Arkansas river:

A. Winter storage in John Martin reservoir shall commence on November 1st
of each year and continue to and include the next succeeding March 31st. During
said period all water entering said reservoir up to the limit of the then available
conservation capacity shall be stored: Provided, that Colorado may demand
releases of water equivalent to the river flow, but such releases shall not exceed
100 c.f.s. (cubic feet per second) and water so released shall be used without
avoidable waste.

B. Summer storage in John Martin reservoir shall commence on April 1st of
each year and continue to and include the next succeeding October 31st. During
said period, except when Colorado water users are operating under decreed
priorities as provided in paragraphs F and G of this article, all water entering said
reservoir up to the limit of the then available conservation capacity shall be stored:
Provided, that Colorado may demand releases of water equivalent to the river flow
up to 500 c.f.s., and Kansas may demand releases of water equivalent to that
portion of the river flow between 500 c.f.s. and 750 c.f.s., irrespective of releases
demanded by Colorado.

C. Releases of water stored pursuant to the provisions of paragraphs A and B
of this article shall be made upon demands by Colorado and Kansas concurrently or
separately at any time during the summer storage period. Unless increases to meet
extraordinary conditions are authorized by the administration, separate releases of
stored water to Colorado shall not exceed 750 c.f.s., separate releases of stored
water to Kansas shall not exceed 500 c.f.s., and concurrent releases of stored
water shall not exceed a total of 1250 c.f.s.: Provided, that when water stored in the
conservation pool is reduced to a quantity less than 20,000 acre-feet, separate
releases of stored water to Colorado shall not exceed 600 c.f.s., and separate
releases of stored water to Kansas shall not exceed 400 c.f.s., and concurrent
releases of stored water shall not exceed 1,000 c.f.s.

D. Releases authorized by paragraphs A, B, and C of this article, except when
all Colorado water users are operating under decree priorities as provided in
paragraphs F and G of this article, shall not impose any call on Colorado water
users that divert waters of the Arkansas river upstream from John Martin dam.

E. (1) Releases of stored water and releases of river flow may be made
simultaneously upon the demands of either or both states.

(2) Water released upon concurrent or separate demands shall be applied
promptly to beneficial use unless storage thereof downstream is authorized by the
administration.

(3) Releases of river flow and of stored water to Colorado shall be measured
by gauging stations located at or near John Martin dam and the releases to which
Kansas is entitled shall be satisfied by an equivalent in state line flow.

(4) When water is released from John Martin reservoir appropriate
allowances as determined by the administration shall be made for the intervals of
time required for such water to arrive at the points of diversion in Colorado and at
the state line.

(5) There shall be no allowance or accumulation of credits or debits for or
against either state.

(6) Storage, releases from storage and releases of river flow authorized in
this article shall be accomplished pursuant to procedures prescribed by the
administration under the provisions of article VIII.

F. In the event the administration finds that within a period of fourteen days
the water in the conservation pool will be or is liable to be exhausted, the
administration shall forthwith notify the state engineer of Colorado, or his duly
authorized representative, that commencing upon a day certain within said fourteen
day period, unless a change of conditions justifies cancellation or modification of
such notice, Colorado shall administer the decreed rights of water users in
Colorado water district 67 as against each other and as against all rights now or
hereafter decreed to water users diverting upstream from John Martin dam on the
basis of relative priorities in the same manner in which their respective priority
rights were administered by Colorado before John Martin reservoir began to
operate and as though John Martin dam had not been constructed. Such priority
administration by Colorado shall be continued until the administration finds that
water is again available in the conservation pool for release as provided in this
compact, and timely notice of such finding shall be given by the administration to
the state engineer of Colorado or his duly authorized representative; provided, that
except as controlled by the operation of the preceding provisions of this paragraph
and other applicable provisions of this compact, when there is water in the
conservation pool the water users upstream from John Martin reservoir shall not be
affected by the decrees to the ditches in Colorado water district 67. Except when
administration in Colorado is on a priority basis the water diversions in Colorado
water district 67 shall be administered by Colorado in accordance with distribution
agreements made from time to time between the water users in such district and
filed with the administration and with the state engineer of Colorado or, in the
absence of such agreement, upon the basis of the respective priority decrees, as
against each other, in said district.

G. During periods when Colorado reverts to administration of decree
priorities, Kansas shall not be entitled to any portion of the river flow entering John
Martin reservoir. Waters of the Arkansas river originating in Colorado which may
flow across the state line during such periods are hereby apportioned to Kansas.

H. If the usable quantity and availability for use of the waters of the
Arkansas river to water users in Colorado water district 67 and Kansas will be
thereby materially depleted or adversely affected, (1) priority rights now decreed to
the ditches of Colorado water district 67 shall not hereafter be transferred to other
water districts in Colorado or to points of diversion or places of use upstream from
John Martin dam; and (2) the ditch diversion rights from the Arkansas river in
Colorado water district 67 and of Kansas ditches between the state line and Garden
City shall not hereafter be increased beyond the total present rights of said ditches,
without the administration, in either case (1) or (2), making findings of fact that no
such depletion or adverse effect will result from such proposed transfer or
increase. Notice of legal proceedings for any such proposed transfer or increase
shall be given to the administration in the manner and within the time provided by
the laws of Colorado or Kansas in such cases.

Article VI

A. (1) Nothing in this compact shall be construed as impairing the jurisdiction
of Kansas over the waters of the Arkansas river that originate in Kansas and over
the waters that flow from Colorado across the state line into Kansas.

(2) Except as otherwise provided, nothing in this compact shall be construed
as supplanting the administration by Colorado of the rights of appropriators of
waters of the Arkansas river in said state as decreed to said appropriators by the
courts of Colorado, nor as interfering with the distribution among said appropriators
by Colorado, nor as curtailing the diversion and use for irrigation and other
beneficial purposes in Colorado of the waters of the Arkansas river.

B. Inasmuch as the Frontier canal diverts waters of the Arkansas river in
Colorado west of the state line for irrigation uses in Kansas only, Colorado
concedes to Kansas and Kansas hereby assumes exclusive administrative control
over the operation of the Frontier canal and its headworks for such purposes, to the
same extent as though said works were located entirely within the state of Kansas.
Water carried across the state line in Frontier canal or any other similarly situated
canal shall be considered to be part of the state line flow.

Article VII

A. Each state shall be subject to the terms of this compact. Where the name
of the state or the term state is used in this compact these shall be construed to
include any person or entity of any nature whatsoever using, claiming or in any
manner asserting any right to the use of the waters of the Arkansas river under the
authority of that state.

B. This compact establishes no general principle or precedent with respect
to any other interstate stream.

C. Wherever any state or federal official agency is referred to in this
compact such reference shall apply to the comparable official or agency
succeeding to their duties and functions.

Article VIII

A. To administer the provisions of this compact there is hereby created an
interstate agency to be known as the Arkansas river compact administration herein
designated as the administration.

B. The administration shall have power to:

(1) Adopt, amend and revoke by-laws, rules and regulations consistent with
the provisions of this compact;

(2) Prescribe procedures for the administration of this compact: Provided,
that where such procedures involve the operation of John Martin reservoir project
they shall be subject to the approval of the district engineer in charge of said
project;

(3) Perform all functions required to implement this compact and to do all
things necessary, proper or convenient in the performance of its duties.

C. The membership of the administration shall consist of three
representatives from each state who shall be appointed by the respective
governors for a term not to exceed four years. One Colorado representative shall be
a resident of and water right owner in water districts 14 or 17, one Colorado
representative shall be a resident of and water right owner in water district 67, and
one Colorado representative shall be the director of the Colorado water
conservation board. Two Kansas representatives shall be residents of and water
right owners in the counties of Finney, Kearny or Hamilton, and one Kansas
representative shall be the chief state official charged with the administration of
water rights in Kansas. The President of the United States is hereby requested to
designate a representative of the United States, and if a representative is so
designated he shall be an ex officio member and act as chairman of the
administration without vote.

D. The state representatives shall be appointed by the respective governors
within thirty days after the effective date of this compact. The administration shall
meet and organize within sixty days after such effective date. A quorum for any
meeting shall consist of four members of the administration: Provided, that at least
two members are present from each state. Each state shall have but one vote in the
administration and every decision, authorization or other action shall require
unanimous vote. In case of a divided vote on any matter within the purview of the
administration, the administration may, by subsequent unanimous vote, refer the
matter for arbitration to the representative of the United States or other arbitrator
or arbitrators, in which event the decision made by such arbitrator or arbitrators
shall be binding upon the administration.

E. (1) The salaries, if any, and the personal expenses of each member shall be
paid by the government which he represents. All other expenses incident to the
administration of this compact which are not paid by the United States shall be
borne by the states on the basis of 60 per cent by Colorado and 40 per cent by
Kansas.

(2) In each even numbered year the administration shall adopt and transmit
to the governor of each state its budget covering anticipated expenses for the
forthcoming biennium and the amount thereof payable by each state. Each state
shall appropriate and pay the amount due by it to the administration.

(3) The administration shall keep accurate accounts of all receipts and
disbursements and shall include a statement thereof, together with a certificate of
audit by a certified public accountant, in its annual report. Each state shall have the
right to make an examination and audit of the accounts of the administration at any
time.

F. Each state shall provide such available facilities, equipment and other
assistance as the administration may need to carry out its duties. To supplement
such available assistance the administration may employ engineering, legal,
clerical and other aid as in its judgment may be necessary for the performance of
its functions. Such employees shall be paid by and be responsible to the
administration, and shall not be considered to be employees of either state.

G. (1) The administration shall co-operate with the chief official of each state
charged with the administration of water rights and with federal agencies in the
systematic determination and correlation of the facts as to the flow and diversion of
the waters of the Arkansas river and as to the operation and siltation of John Martin
reservoir and other related structures. The administration shall co-operate in the
procurement, interchange, compilation and publication of all factual data bearing
upon the administration of this compact without, in general, duplicating
measurements, observations or publications made by state or federal agencies.
State officials shall furnish pertinent factual data to the administration upon its
request. The administration shall, with the collaboration of the appropriate federal
and state agencies, determine as may be necessary from time to time, the location
of gauging stations required for the proper administration of this compact and shall
designate the official records of such stations for its official use.

(2) The director, U. S. geological survey, the commissioner of reclamation
and the chief of engineers, U. S. Army, are hereby requested to collaborate with the
administration and with appropriate state officials in the systematic determination
and correlation of data referred to in paragraph G (1) of this article and in the
execution of other duties of such officials which may be necessary for the proper
administration of this compact.

(3) If deemed necessary for the administration of this compact, the
administration may require the installation and maintenance, at the expense of
water users, of measuring devices of approved type in any ditch or group of ditches
diverting water from the Arkansas river in Colorado or Kansas. The chief official of
each state charged with the administration of water rights shall supervise the
execution of the administration's requirements for such installations.

H. Violation of any of the provisions of this compact or other actions
prejudicial thereto which come to the attention of the administration shall be
promptly investigated by it. When deemed advisable as the result of such
investigation, the administration may report its findings and recommendations to
the state official who is charged with the administration of water rights for
appropriate action, it being the intent of this compact that enforcement of its terms
shall be accomplished in general through the state agencies and officials charged
with the administration of water rights.

I. Findings of fact made by the administration shall not be conclusive in any
court or before any agency or tribunal but shall constitute prima facie evidence of
the facts found.

J. The administration shall report annually to the governors of the states and
to the President of the United States as to matters within its purview.

Article IX

A. This compact shall become effective when ratified by the legislature of
each state and when consented to by the congress of the United States by
legislation providing substantially, among other things, as follows:

Nothing contained in this act or in the compact herein consented to shall be
construed as impairing or affecting the sovereignty of the United States or any of
its rights or jurisdiction in and over the area or waters which are the subject of such
compact: Provided, that the chief of engineers is hereby authorized to operate the
conservation features of the John Martin reservoir project in a manner conforming
to such compact with such exceptions as he and the administration created
pursuant to the compact may jointly approve.

B. This compact shall remain in effect until modified or terminated by
unanimous action of the states and in the event of modification or termination all
rights then established or recognized by this compact shall continue unimpaired.

IN WITNESS WHEREOF, the commissioners have signed this compact in
triplicate original, one of which shall be forwarded to the secretary of state of the
United States of America and one of which shall be forwarded to the governor of
each signatory state.

Done in the city and county of Denver, in the state of Colorado, on the
fourteenth day of December, in the year of our Lord one thousand nine hundred and
forty-eight.

Henry C. Vidal,

Gail L. Ireland,

Harry B. Mendenhall,

Commissioners for Colorado.

Attest:

Warden L. Noe, Secretary.

George S. Knapp,

Edward F. Arn,

William E. Leavitt,

Roland H. Tate,

Commissioners for Kansas.

Approved:

Hans Kramer,

Representative of the

United States.

Legislative History

Source: L. 49: p. 485, � 1. CSA: C. 90, � 39(1). CRS 53: � 148-9-1. C.R.S. 1963: � 149-9-1.