As the federal government — and the states that rely on the river — scramble to save the river system that has fueled growth in the West, the U.S. Bureau of Reclamation faces something of a Solomonic choice: Pick California’s proposal, based on the “law of the river” that put primacy on senior water rights, and Arizona and Nevada would take the brunt of water cuts.
Pick the six-state proposal, and California could sue.
In fact, either path could lead to lawsuits that drag on for years, leaving the river, and the 40 million people who rely on it, in worse shape than it is now, according to several experts.
Many desperately want to avoid that scenario. They also prefer that all seven basin states come up a consensus proposal, rather than leave it to the federal government to choose a path for the western states.
“If the states can’t find a way to work this out, we will be handing this decision to the Department of the Interior. No one wants that. Let’s resolve this right here at home, in the West,” U.S. Sen. Michael Bennet earlier said in a statement. “We have to live within what the river can provide, and that’s what we’ve done – what we have always done — in Colorado.”
The federal government has repeatedly signaled that, whichever path it picks, its action would be geared toward the overarching purpose of preserving the "system."
What the means is protecting Lake Powell and Lake Mead, the nation’s two largest reservoirs.
When the current drought started roughly two decades ago, both lakes had both been nearly full. But the ensuing dry years brought the reservoirs to levels so low that it jeopardizes hydropower at its two dams, sustainability for agriculture and, most concerning, drinking water for millions of people.
The California conundrum
By most accounts, California’s proposal, if picked, would mean Arizona and Nevada, which has junior rights compared to their bigger neighbor, taking the brunt of water cuts.
That’s untenable for southern Nevada, which relies on the Colorado River for 90% of its drinking water, and for Arizona, which draws from the river about 36% of its drinking water, primarily for Phoenix and Tucson, the state’s two largest cities.
The Bureau of Reclamation's other choice is to turn to the six-state proposal submitted last week, which would force more cuts on Arizona and Nevada, but which puts California in line for large cuts, as well, based on accounting for evaporative losses and other system inefficiencies.
Under the proposal, estimates on California’s share of the cuts range from 708,000 to 766,000 acre-feet per year, out of a total allocation of 4.4 million acre-feet annually.
The fight over who gets water and who doesn’t is, undoubtedly, also political, and some are working to minimize the bluntest contours of that fight.
For the past year, U.S. senators from the seven states have been meeting informally to discuss the crisis on the Colorado River, a group convened by Colorado's John Hickenlooper.
Hickenlooper told Colorado Politics Monday he initially wanted to assemble a western caucus when he first got to D.C. two years ago, based on his own successful experience with the bipartisan Western Governors Association, where he served as chair in 2014 while serving as Colorado’s governor.
He met some initial reluctance, Hickenlooper indicated, with some asking, “Why would we do this?”
But it didn’t take long for the group’s focus to turn to the Colorado River, and, in the past month, the group, now known as the Colorado River Water Caucus, met with Reclamation Commissioner Camille Touton.
The caucus’ goal is to make sure it can help the states create their own solution and to facilitate as much as possible a resolution to the problem, Hickenlooper said.
“Within the caucus there was certainly a frustration over results for all seven states,” he said.
What they want to avoid is a solution that creates winners and losers — and it ultimately ends up in court, Hickenlooper said.
“We have a sense of urgency and a limited amount of time. This is not just a drought that will go away," he said.
Both Hickenlooper and Bennet, D-Denver, said a solution that is designed by the seven states would be better than one imposed by Washington, D.C.
But Washington, D.C. plays a role in that conversation, particularly through money.
Money is, indeed, available to tackle the crisis: $4 billion from the Inflation Reduction Act and $8 million from the bipartisan Infrastructure Act.
“We’re not threatening anyone,” Hickenlooper said.
Instead, he emphasized, they’re looking for ways to get enough “carrots” — as opposed to sticks — to entice everyone to come to a solution and make those difficult choices.
But time is running out, and the ball is now back in Reclamation’s court, as it considers the environmental effects such large cuts in water allocation would have on equity, public health and safety, according to a recent statement from Tommy Beaudreau, the U.S. Interior deputy secretary.
The Law of the River
The Law of the River began with the 1922 Colorado River Compact, which set forth how water would be divided up among the seven states. That compact was followed by a hundred years of agreements and court decisions that further defined how the river, its two reservoirs and two dams would operate.
University of Arizona Professor Jeff Silvertooth, who has researched the profitability and sustainability of Southwest agriculture, said he is not surprised to see California insisting on the primacy of the law of the river in its proposal.
Under the historical system, California receives the largest allocation of Colorado River water.
“Water movement has nothing to do with gravity, it goes to where there is money and political power,” Silvertooth said.
Arizona, which has already seen deep cuts to its water allocation, would see even more under California’s proposal. Those cuts have hammered junior water users on the river that rely on the Central Arizona Project, a 336-mile canal that starts at Lake Havasu and runs southeast, ending 14 miles south of Tucson.
The Central Arizona Project will not see 592,000 acre feet this year, a cut back of 21% of the state’s Colorado River supply.
“People are losing their farms, losing their businesses today,” Silvertooth said.
In the next three years, he expects utilities will need to change how they provide water to cities, such as those in the Phoenix metro area, to deal with the shortages on the river. For example, utilities could consider an allocation of water for all the people in each household. Tiered rate structures could also encourage conservation.
On the other side, Bart Fisher, a member of the Colorado River Board of California and a farmer in southeastern California, said the proposal by the other six states could hurt the seniority system that agriculture across the West has relied on since the compact was signed, particularly if the states end up fighting over water rights in court.
The seniority system grants those who claimed their rights first the highest priority to water and generally protects agriculture, whose rights tend to be senior to cities.
The courts could bring major changes to that system, Fisher said.
“We are trying to assert that California’s senior ag rights remain senior," he said. "They are asserting there need to be permanent reductions in agriculture in the West and we don’t agree with that."
He fears that any decision about California’s senior water rights would set a precedent across the whole basin, and that could hurt agriculture in his state.
He described evaporative loss as an issue that has been festering for decades and has been previously set aside to allow the states to collaborate.
“On this occasion, I think we see this notion from the other states that you should never let a good crisis go to waste,” he said.
Farms and ranchers will need to offer water in the short term to supply the needs of cities, he said. For example, of the 40 million people the river serves, about 20 million of them live on the California coast.
“It is a center of votes, of political power, and they are not going to go without water,” he said.
But serving cities must be balanced with the needs of farms, he said.
“From a federal policy perspective, the last thing we want to do is trade a water crisis for a food crisis ,” he said.
What about drinking water?
John Berggren, senior regional water policy analyst for Western Resource Advocates, sees a bigger risk beyond agriculture, and that’s the ability of the river to provide drinking water to millions of people in the lower basin states.
Berggren said he doesn’t believe the disagreement between California and the six states has reached an impasse. They’re talking to each other, the feds are talking, he said.
What is encouraging is that both parties recognize the scale of the problem and that’s the first time all of the basin states are talking about millions of acre-feet of water in conservation.
“They all know significant numbers have to be on the table to fix the problem and avert the crisis,” Berggren said.
Two components exist, he said.
Yes, California has senior water rights and Arizona holds junior water rights, which means, in theory, the Central Arizona Project would have to run dry before California would take any cuts, under California’s senior rights system, he said. Arizona knew that was the deal when it agreed to it and got funding to build the CAP in the 1960s, with the assumption that, eventually, the system would be augmented.
A 2019 report from an engineering firm contracted by Arizona to look into those options identified ocean desalination, brackish groundwater desalination and groundwater transfers from two local groundwater basins.
The second component, Berggren said, is evaporation and system losses, and he believes there is sound legal reasoning for the lower basin states to begin accounting for those losses, an approach which is supported by the U.S. Department of the Interior.
“I would suspect Interior wouldn’t put that plan in motion if they weren’t confident of the legal argument," he said. But "it doesn’t mean California won’t sue.”
But any litigation will bind things up for years, and "we don’t have years.”
Berggern said Reclamation has the authority, though it has never flexed that muscle, to unilaterally short the lower basin states on water. If it winds up in court, he hopes the federal government will utilize its authority to protect reservoir levels for health and human safety reasons.
If Lake Mead gets to “dead pool,” which is 895 feet elevation, or about 152 feet below its current level, that won't just result in the loss of hydropower. That also means no more pumping drinking water for the lower basin states and the millions of people who rely on it.
“I don’t think anyone, regardless of prior appropriation or where they stand on legal theories, wants to see that happen," he said.
What’s been lost in the conversations, Berggren believes, is the river itself. If the proposals were to focus on the river's health, then health and human safety "minimums" would be taken care of.
A river that flows through the Grand Canyon — and doesn’t degrade ecosystems so they no longer function — protects health and safety levels.
Much of that, however, would fall on the upper basin states of Colorado, New Mexico, Utah and Wyoming, Berggern said, adding he believes the plans outlined by the Upper Colorado River Commission, which include a demand management program and restarting a system conservation program, should focus on multiple benefits.
“Don’t just pay people to use less water," he said. "Pay people to use less water at key areas and times of the year that benefit the river.”
