Colorado River states balk at adjusting water shares to deal with crisis

It has become an article of faith: A key reason for the Colorado River’s precarious condition is that nearly a century ago, the river basin states awarded themselves paper rights to far more water than actually exists.

In signing the Colorado River compact 99 years ago, on Nov. 24, 1922, the states allocated 16 million acre-feet of water — 8.5 million to the Lower Basin and 7.5 million to the Upper Basin. Mexico was awarded another 1.5 million acre-feet in 1944.

The total is substantially more than the 14.8 million acre-feet the Colorado averaged annually from 1906 through 2016. And it’s way more than the 12.3 million acre-feet the river has carried annually since the current highly arid period began in 2000.

Because of that, a number of scholars have argued for years the compact should be revised to bring its allocations in line with today’s available supplies. That’s especially true, they say, because various forecasters say the river could be carrying 20% to 30% less water by 2060 than now. But water officials of the seven river basin states show no sign of wanting to tangle with the existing allocations -- many of them say it's simply not necessary.

A politician who raised this issue recently was U.S. Rep. James Costa, a California Democrat. At an October congressional hearing on the river, Costa asked basin states’ water officials, “Let’s say the annual yield over the next 30 years is 10 million acre-feet. ... How do we take into account how we got to the original allocation, with the Upper and Lower Basin states and the Native American tribes, and then reallocate that on a lot less water?”

The seven states, including Arizona, sent Costa a strong signal this month they don’t see reallocating the river’s water rights as a fix.

In Nov. 10 written responses, the state officials generally saw interstate collaboration within the river’s existing legal structure — commonly known as the “Law of the River” — as the best way out of the Colorado’s current troubles.

An average of around 1 million to 1.4 million more acre-feet is pulled from the river each year than nature puts in. But officials of four of the seven states opposed reallocation. The other three states’ officials didn’t mention it.

“Our challenge now is not reallocating water,” wrote Arizona Department of Water Resources Director Tom Buschatzke. “Our challenge is to collaborate to address the increasing hydrologic risks by developing additional innovative and proactive measures, including either voluntary or mandatory conservation.”

These measures could be carried out within the river’s existing legal governing structure to address current and future challenges, “including when there is insufficient water to fully satisfy the existing apportionments of the Colorado River system,” Buschatzke wrote.

Wyoming representative Pat Tyrrell used arguments against reallocation almost identical to Buschatzke’s, although the ADWR said it didn’t coordinate its response with any other basin state.

Tyrrell added that while compact negotiators anticipated future droughts, and that water officials in subsequent years recognized supplies were shrinking, “they hardly could have anticipated what we are experiencing now.”

“Nevertheless, the original equitable division made in 1922 provides the foundation for all that has followed and must remain. We must take into account that original equitable division as well as every resulting right, obligation and benefit which finds its source in that bargain,” Tyrrell said.

Rebecca Mitchell, director of the Colorado Water Conservation Board, wrote, “In considering how to best manage the Colorado River in the face of a warmer and drier future, our task now is not to reapportion the water, but to work together to find flexibilities within the existing framework to equitably share shortages between the Upper and Lower Basins.”

Mitchell noted the compact was negotiated in the face of concerns from Upper Basin states — Wyoming, Colorado, Utah and New Mexico — that rapid growth in the Lower Basin states of Arizona, California and Nevada would slurp up more than that basin’s fair share of water.

States negotiated the compact to provide for greater certainty and security for all states relying on the water, Mitchell wrote.

These comments come as tensions are emerging between the two regions over how to manage the river’s depleted supplies.

Lower Basin officials are concerned that plans by Upper Basin states to build new projects to divert more river water would make it virtually impossible to bring supplies and demands into balance. Upper Basin officials are concerned that because they’re not using nearly as much of their river supplies as is the Lower Basin, they’ll have to take the brunt of future water cuts to protect existing Lower Basin uses.

‘Hopelessly inadequate’

Just this month, a dissenting view from the states’ position emerged in an essay by a retired University of Utah political science professor, who wrote: “The compact is hopelessly inadequate to deal with current and future realities.

“In my view, a much better approach would be to allocate water among the states and tribes in percentages, based on a five-year rolling average that would change as the river’s flow changes,” wrote professor emeritus Dan McCool on Nov. 17 in The Conversation, a nonprofit, academic-based explanatory website.

“Without such a shift, the compact will merely perpetuate a hydrological fallacy that leads water users to claim water that does not exist,” he wrote.

In an interview with the Star, McCool said it’s better to establish a new legal framework, also through a collaborative process, “that actually solves problems and creates a Law of the River that’s based on realistic flows, especially projected flows, which are dismal.

“What we really need is a whole new vision,” McCool said. “There’s no holiday from potential disaster in the Colorado River Basin. It’s adapt or die.”

Costa, the California congressman, agreed in an interview with the Star that it’s inevitable the 1922 allocations will have to be revised at some point.

“There’s no way you can get around that. Because if the Upper Basin and Lower Basin states’ allocations are based upon a 17.5 million acre-feet yield, and everyone realizes that yield is no longer based upon reality as it relates to scientific measurements on levels of Lake Mead and Lake Powell, the averages are going to be less than what was thought to be when the allocations were made.

“That’s the reality. It is a hard reality. It’s what we are going to have to ultimately deal with in the 21st century,” Costa said.

2008 warnings went unheeded

McCool’s comments are similar to what another University of Utah scholar, law professor Robert Adler, wrote in a 2008 study. Adler wrote the compact should be reconsidered due to changing circumstances, led by “the increasing likelihood that reduced runoff caused by global warming will exacerbate the already serious gap between available water resources and resource needs under the compact as written.”

Adler cited other needs not fully addressed in the compact, such as tribal water rights and environmental restoration and protection. For that pact, “negotiators viewed the Colorado River as a giant bucket of water and other resources (especially electric power potential) to allocate among various large and growing appetites,” he said.

Negotiations were more likely to succeed if key players anticipated rather than waited for an impending crisis, he wrote.

“If the federal government, the basin states, tribes, environmental groups, Mexico, and other players wait for water conflicts to become even more acute, the likely response will be litigation or divisive battles in a highly charged political arena. A fairer and more reasoned agreement is far more likely if we address the future of the Colorado River sooner rather than later,” Adler wrote.

The same year, however, then-Sen. John McCain learned the hard way about political costs of pushing too hard to renegotiate the compact, said a 2018 account from KUNC radio in Fort Collins, Colorado.

Because of population growth and dwindling water supplies, McCain told a Pueblo, Colorado reporter that he would support renegotiating the compact.

The reporter, Charles Ashby, recalled years later, “I knew immediately that was a no-no, at least for politics here in the state of Colorado. And so I said to him, ‘Are you sure you want to say that? Because that won’t go over well up here.’”

The prominent Arizona Republican senator, running for president at the time, stuck to his position, and Democratic Sen. Ken Salazar of Colorado later said the state would revisit the compact over his dead body.

McCain’s comment was later cited by then-Colorado Gov. Bill Ritter as a key reason Barack Obama, not McCain, carried Colorado in the 2008 presidential election, the station reported.

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Water shortages

Today, the crisis anticipated by Adler’s 2008 study is on the river basin’s doorstep. It’s coming two years after the basin states adopted a formal drought contingency plan to try to stabilize reservoir levels and 14 years after approving their first operating guidelines for the reservoirs aimed at preparing for shortages.

The Lower Basin will have its first major shortage next year, when the U.S. Bureau of Reclamation substantially cuts Central Arizona Project deliveries of Colorado River water to Pinal County farmers and some other Arizona water users, although none in the Tucson area. About 512,000 acre-feet — roughly one-third of CAP’s annual supply — will be curtailed in Arizona.

The Lower Basin states are also trying urgently to find ways to cut another 500,000 acre-feet, to keep Lake Mead’s water level from dropping below 1,020 feet, compared to an expected 1,067 feet by the end of 2021. The states say they’ll announce a plan for the cuts by December.

In the Upper Basin, the bureau forecasts a one-third chance that Lake Powell will drop so low by 2023 that Glen Canyon Dam won’t be able to generate electric power, sold to about 5 million customers in Arizona and five other basin states.

The Upper Basin is weighing possible measures to prop lake levels up, including transferring additional water from upstream reservoirs, on top of 180,000 acre-feet brought to Lake Powell this year from those reservoirs.

In Colorado, 2021 has been particularly difficult for shortages, state official Mitchell wrote to Costa.

In western Colorado, for example, the Ute Mountain Ute Farm and Ranch Enterprise, owned by the Ute Mountain Ute Tribe, wasn’t able to produce crops without its water allotment and had to lay off 50% of its staff, mostly tribal members, she wrote. The farm used only eight of 110 fields.

Partly because of limited supplies, the Upper Basin uses about 3 million acre-feet a year less water than its allocation allows, Mitchell said.

“This does not mean that the Upper Basin does not need or cannot use more water. When it is available, it is diverted and used,” she wrote. “Lower Basin water users get their water supplies from releases of water from Lakes Powell and Mead. In contrast to the Upper Basin’s variable supply from natural snowpack, these reservoirs provide a secure and reliable source.”

‘Crisis is the correct word’

Kathryn Sorensen, research director for Arizona State University’s Kyl Center for Water Policy, was asked at a November water conference in Colorado if the river is in crisis.

“Absolutely, I think crisis is the correct word,” she answered. “The shortage sharing provisions we adopted in 2007 were not enough. The provisions we adopted in 2019 for the Drought Contingency Plan are just not enough to withstand the incredibly bad hydrology.

"I think it’s clear the Lower Basin is going to need to cut water use very significantly, Given that all sectors have already done a lot in terms of efficiency and reducing water use," it will be very difficult and expensive to accomplish, she said.

At the same conference, retired Metropolitan Water District General Manager Jeff Kightlinger said, “I’d like to argue against Kathryn, but it’s pretty hard. We are in a pretty tough situation. The 2019 Drought Contingency Plan had some pretty strong measures in it, but they’re probably not low enough in cuts.

“When I became general manager, California was on 5.5 million acre-feet (of river water a year). We’re now at 4.4 million. It was tough. We spent billions of dollars to do it. Now, we’ve gotta do it over again and even more.” The Metropolitan Water District serves Southern California.

At another water conference in September, also in Colorado, Southern Nevada Water Authority General Manager John Entsminger said the basin states should plan for a worst-case scenario of no more than 11 million acre-feet a year in river flows.

He said that’s probably the worst-case scenario on the ground but is probably the only one the states politically could agree to plan for.

But while Lower Basin states must reduce their long-term “structural deficit” between use and supplies, the entire basin must recognize that any new water diversions stress the other side of the supply-demand equation, Entsminger said.

He was referring to Upper Basin states’ plans to build several new water projects to divert hundreds of thousands of acre-feet from the river, led by the Lake Powell pipeline proposed for the St. George, Utah, area.

But at the same conference, Upper Basin state representatives and academics argued the river’s supply crunch puts an unfair squeeze on their region because Upper Basin states use barely half their allocated supplies while Lower Basin states use most or all of theirs.

“Due to how the system operates, the Lower Basin has benefited from above normal (reservoir) releases,” Colorado’s Mitchell wrote to Costa. “This has directly contributed to the declining levels in Lakes Mead and Powell.”

New Mexico State Engineer John D’Antonio told the September water conference that planning for a long-term river supply of 13 million to 14 million acre-feet is “a little bit more realistic.” Planning for 11 million “will leave future Upper Basin water developments high and dry.

“It’s not there right now but it could be there,” D’Antonio said of the 13 million. “The Upper Basin, we’ve been talking shortages for years. The real key is having a productive discussion on shortage sharing between the basins.”

UA prof worries about litigation

Two longtime Arizona water experts, University of Arizona law professor Robert Glennon and ASU researcher Sarah Porter, agreed these issues can be worked out without revising the 1922 compact and its water allocations.

The first 80 years under the compact were marked by conflict and seemingly endless litigation, led by an Arizona vs. California lawsuit that began in 1930 and wasn’t fully settled until 2006, Glennon said.

But the states have worked in a surprisingly collaborative way the past 20 years, he said. In the Lower Basin, efforts to conserve another 500,000 acre-feet to prop up Lake Mead show the states can work within the framework of the Law of the River to address mutual concerns, he said.

“The basin states have come to accept the reality and the scale of climate change in the basin. And they are painfully aware of how slowly litigation proceeds and that the outcome cannot be predicted,” Glennon said.

“Quite simply, the states don’t have time to litigate. Casting the Colorado River Compact to one side and starting over with negotiations over allocations would be fraught with uncertainly and delay.”

Porter, director of ASU’s Kyl Center for Water Policy, said she doesn’t think changing allocations is critical. “What’s critical is having math that is centered on realistic production in the Colorado River — how much do we really think we can get out of it,” she said.

“I don’t think there’s a choice but to come up with a way of addressing the needs of both basins that admit that we can’t expect so much water,” Porter said.

But in another recent paper, author and former Colorado River District General Manager Eric Kuhn asked if instead of trying to address climate change problems on a “piecemeal” basis, “is it now time to accept the reality the 1922 Compact and other major planks of the Law of the River are based on many hydrologic, economic, and political assumptions that are no longer valid today?”

His paper dealt with whether the Upper Basin has a legal obligation under the compact to supply half of Mexico’s 1.5 million acre-foot share of the river. He concluded that it may be valid to say no such obligation exists, but that Upper Basin officials should ask themselves: “Does reducing our delivery obligation to Mexico solve our problem or only delay the day when aridification will again reduce our water supply?”

The basin needs an allocation system that recognizes nature, via climate change, has brought a deeply uncertain water system, “not the one we thought we had for the last 100 years and that many of the basin’s decision makers still wish they had today,” he wrote. He later said in an interview:

“As long as you have fixed obligations in a declining water supply, we’re headed for problems.”