Kansas v. Colorado, 514 U.S. 673, 18 (1995)

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Opinion of the Court

rado claims that the limit on its pre-Compact pumping is the maximum amount that Colorado law permitted or the maximum amount of pumping possible using wells existing prior to the Compact. Id., at 69-70. In support of its position, Colorado argues that the Special Master failed to consider the subsequent practice of the parties, i. e., Kansas' failure to object to replacement of centrifugal pumps with turbine pumps or increased pumping by pre-Compact wells, and that Article VI-A(2) of the Compact supports its position.4

We conclude that the clear language of Article IV-D refutes Colorado's legal challenge. Article IV-D permits "future beneficial development of the Arkansas River basin . . . which may involve construction of dams, reservoir, 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 . . . shall not be materially depleted in usable quantity or availability . . . ." App. to Report 5 (emphasis added). Regardless of subsequent practice by the parties, improved and increased pumping by existing wells clearly falls within Article IV-D's prohibition against "improved or prolonged functioning of existing works," if such action results in "materia[l] deplet[ions] in usable" river flows. Ibid.; see Texas v. New Mexico, 462 U. S. 554, 564 (1983) ("[U]nless the compact to which Congress has consented is somehow unconstitutional, no court may order relief inconsistent with its express terms"). Article VI-A(2) of the Compact, which begins with the phrase, "Except as otherwise provided," App. to

4 Article VI-A(2) provides: "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." App. to Report 10 (emphasis added).

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