By Tripp Baltz
DENVER--In the course of a three-year, $4 million study on water supply and
demand in the Colorado River Basin, the U.S. Bureau of Reclamation and the seven
basin states signaled they were ready to hear any and all ideas.
Options and strategies flowed in, ranging from the prosaic to the exotic.
Desalination plants in the Pacific Ocean. Pipelines connecting the Mississippi
and the Missouri rivers to the Denver metro area. Tankers hauling icebergs and
bags of water to Southern California.
However, the study, known formally as The Colorado River
Basin Water Supply and Demand Study, did not assess one set of ideas:
proposals calling for legal and policy changes, many of which concerned the Law
of the River, a collection of compacts, treaties, statutes, and court rulings
that governs how water in the basin has been allocated for more than 90
From the beginning of the study--completed in December 2012 and funded by the
Bureau of Reclamation and the basin states of Arizona, California, Colorado,
Nevada, New Mexico, Utah, and Wyoming--the participants agreed it would be
taking on too much to give serious consideration to changing the Law of the
“To rewrite or amend the Law of the River was a place we were not willing to
go at this time and in the context of the study,” said Ted Kowalski, chief of
the interstate, federal, and water information section for the Colorado Water
Conservation Board, part of the state's Department of Natural Resources.
Kowalski was a member of the options and strategies sub-team that helped write
Carly Jerla, operations research analyst for the Bureau of Reclamation in
Boulder, and the bureau's manager for the study, told BNA that officials
believed it would not be productive “to start taking apart the Law of the River
just for the sake of taking it apart.”
“We were all in agreement from the get-go that we were going to reflect on
and consider the policy options, but that they were not going to go through a
rigorous assessment,” Jerla said. “We all knew that if we started going down
that road, we would get sidelined and never get the report done.”
Authorized by the 2009 SECURE Water Act, the study began in January 2010 and
was completed last year. It defined current and future imbalances in water
supply and demand in the Colorado River Basin for approximately the next 50
years and developed and analyzed adaptation and mitigation strategies to resolve
Participating in and generating the study were federal and state water
officials, municipal water district managers, private companies, environmental
groups, and Native American tribes.
There is much at stake.
The river and its tributaries provide water for 4 million acres of irrigated
land, habitat for fish and wildlife, and critical flow for moisture-dependent
ecosystems, in addition to 4,200 megawatts of hydropower generation and multiple
opportunities for recreation.
The basin is also the primary supply of drinking water for some 40 million
people living in an area that stretches from the Rocky Mountains across the
Desert Southwest to the Southern California shoreline.
The basins study report, released by Interior Secretary Ken Salazar Dec. 12,
projected an average annual supply imbalance--the amount by which demand will
outstrip supply--of 3.2 million acre-feet in the basin by 2060. An acre-foot is
325,851 gallons, the average amount of water consumed by two households in a
To resolve these projected imbalances, the study received and considered more
than 150 ideas for adaptation and mitigation strategies, analyzing them across
four broad categories: increasing supply, reducing demand, modifying operations,
and governance and implementation. The latter group consisted of ideas and
suggestions related to three major categories: water management and allocation,
tribal water, and data and information.
The options and strategies sub-team declined to analyze the legal and policy
ideas contained in the governance and implementation category, especially when
they involved changes to the Law of the River.
The final study report included language acknowledging that “most concepts
related to water management and allocation and tribal water have significant
legal and policy considerations.”
The report acknowledged that those concepts were not assessed by the
participants. “Where appropriate, these concepts will require future discussions
beyond the scope of the study,” it said.
Mechanisms exist for flexible operations in the basin “without destabilizing
the Law of the River or triggering lengthy legal battles that would inevitably
occur with any attempt to re-allocate the river,” the report said.
“The Law of the River has turned out to have more flexibility in it than is
often thought,” Tom Buschatzke, assistant director of the Arizona Department of
Water Resources' Water Management Division, told BNA.
Recent additions to the Law of the River, including guidelines forged in 2007
to deal with shortages caused by drought and an international agreement reached
last year allowing Mexico to store some of its annual allotment of Colorado
River water in the United States, are examples of the law's flexibility, water
officials told BNA.
When asked if members of the sub-team were reluctant to analyze legal and
policy ideas because they respect the Law of the River, fear changing it, or
view changing it as too difficult, sub-team member Don Gross told BNA, “All of
“I don't think the states want to go there,” added Gross, a civil engineer
with the Arizona Department of Water Resources.
Opening up the Law of the River would have risked altering its core
purpose--setting the water allocations to which each state is entitled. States
worry that doing so could result in changes to their current shares.
That fear is more pervasive in the upper basin states of Colorado, New
Mexico, Utah, and Wyoming, which do not use up their full apportionment over a
10-year average, relative to those in the lower basin states of Arizona,
California, and Nevada, which have used up their allotments as defined under
various compacts, agreements, and court orders dating back to 1922.
States in the upper basin are concerned “they won't get as good a deal,”
Reagan Waskom, director of the Colorado Water Institute and the Colorado State
University Water Center, said.
“Only Nevada sees itself as getting a better deal if the compact is opened
up,” he said. “Opening it up would create a lot of uncertainty. In the states
there are few people in positions of power who would say, 'Let's toss this up
and re-discuss it.’ ”
It is likely all three lower basin states would see advantages to changing
allocations as defined under the Law of the River, with Nevada “perhaps having
the most to gain by some kind of reallocation scheme,” Kowalski
Nevada's original percentage allotment, set in 1928 along with the other
lower basin states, was small, in part because of the view at that time about
future development and population growth in the region.
“In the 1920s, you had a strong agricultural orientation, and it was deemed
that the quality of the soils in Nevada was poor,” said Kay Brothers, former
deputy general manager of the Southern Nevada Water Authority and now a
consultant to the authority in Las Vegas. “Also, you weren't looking at cities
like Las Vegas” coming along, she said.
On the other hand, Brothers said, Nevada is probably the state that has
benefitted the most from changes to the Law of the River that have occurred over
the years. “It has benefitted greatly from the flexibility inherent to the
framework of the law,” she said.
Jerla noted the study was a technical one designed to demonstrate ways to
address supply and demand imbalances. “We didn't go into detailed evaluation of
the legal and policy options because of their sensitive nature but also because
they don't address the imbalances,” she said.
“Undermining some of the key principles would not have been a productive way
to move forward,” she added. “If we really wanted to focus on these, we could
have easily taken up the entire three years, with all the skeletons that would
come out of the closet.”
“This was not a decisional document, but it should be considered a call to
action,” said Erin Wilson, professional engineer with Wilson Water Group, a
water consulting firm.
Douglas S. Kenney, director of the Western Water Policy Program in the
University of Colorado School of Law in Boulder, told BNA it was a shame the
study chose not to analyze the legal and policy options.
“Shortages mean there is an inevitability of institutional change needed for
the river, and I don't know how you avoid it,” Kenney said. “States have been
ignoring the underlying legal issues, but they can't go on doing that
“The reservoirs are just too low, and eventually there will be too many
parties who say, 'That last drop is mine.’ It would be better to look at this
now,” he said.
Under some of the most dire modeling scenarios, Lake Powell, which lies in
the upper basin straddling Arizona and Utah, goes dry, he said.
“It will take 20 years to work out the legal implications of an empty Lake
Powell,” he said. “Why not start that now, rather than waiting for the system to
“There is a shortage looming on the horizon, and we have to deal with it,”
John Shields, interstate streams engineer in the Office of the Wyoming State
Engineer, told BNA. “But I don't envision any pathways where we could get there
by legal change without somebody taking something away from somebody else.
“That would lead to litigation and turning to a judge with an incomplete set
of facts who would make a decision that would make nobody happy,” he
The legal implications of the report were indeed sensitive, Kenney said. In
addition to declining to assess the legal and policy options, the study included
a page-long disclaimer stating that nothing in the study report is intended for
use against any of the main basin partners to “evidence legal interpretations of
the law of the river.”
Even the negotiations over the disclaimer became prickly, he said. In June
2011 the Bureau and the seven states released an interim report on the study,
coming right up against the release deadline because of last minute debate over
the disclaimer's wording, Kenney said.
It is the job of the Law of the River, a complex body of laws, court cases,
and regulations, to determine how Colorado River water meets the needs of the
various agricultural, industrial, and municipal users. The Law of the River also
controls how dams and reservoirs are operated in the basin.
Over the history of the Law of the River, water managers have described it in
contradictory terms, at times endowing it with a near-reverent, written-in-stone
quality, while at other times touting its flexibility and evolving nature.
“I would say the Law of the River is pretty adaptable,” Bill Hasencamp of the
Metropolitan Water District of Southern California told BNA. “In the last 10
years, we have made a lot of changes to it.”
The law now provides for states to engage in interstate water banking, at
least in the lower basin, Brothers noted. “Arizona is banking water for Nevada's
future use,” she said. “The majority of what we have banked, 2.8 million acre
feet, is Arizona's unused apportionment. And we paid them for it.”
Water banking and water marketing were elements of at least nine of the
roughly 40 governance and implementation options that were received during the
study. Water officials in the upper basin states are now quietly engaged in
talks over water banking rules for the basin, sources told BNA.
But they were unwilling to do so in the context of the study--again, because
of concerns over the implications for the Law of the River, Hasencamp told
“The states were unwilling to look at some options relating to the law,”
Hasencamp said. When it comes to legal matters in the basin, “the states are
more conservative,” he said. “The water districts are more cutting-edge and
One idea that met strong resistance from the states was the formation of an
informal basinwide stakeholder governance process.
“Any idea about forming a committee having some governance structure, which
would result in states turning that authority over to somebody else, is really a
nonstarter,” said Wyoming's Shields.
The cornerstone of the Law of the River is the Colorado River
Compact of 1922, the first attempt to decide how water in the basin would be
allocated, according to the Bureau of Reclamation.
The 1922 Compact defined the relationship between the upper basin states of
Colorado, New Mexico, Utah, and Wyoming and the lower basin States of Arizona,
California, and Nevada.
At the time, the upper basin states were concerned that plans for the Hoover
Dam and other development projects in the lower basin would, under the Western
water law doctrine of prior appropriation, deprive them of their ability to use
the river's flows in the future, the bureau said.
Prior appropriation, often referred to as the Colorado Doctrine, sets forth a
“first in time, first in right” principle for ownership of water rights. Under
the Western water doctrine, water is not tied to the land, and a landowner may
not use water belonging to someone downstream whose rights are more senior.
The 1922 compact gave each basin the right to develop and use 7.5 million
acre-feet of river water annually, according to the bureau. The approach
reserved water for future upper basin development while allowing lower basin
development to proceed, it said.
It resulted ultimately in an annual requirement for an 8.23 million acre-foot
minimum release from Lake Powell-in other words, a release of upper basin water
to the lower basin.
Over the next quarter century, various treaties, agreements, and acts became
part of the law, including a 1944 water
treaty that apportioned 1.5 million acre-feet of the Colorado's annual river
flow to Mexico.
Other major moments in the law's history include the following, according to
Project Act of 1928 ratified the 1922 compact, authorized the construction
of Hoover Dam and related irrigation facilities in the lower basin and
apportioned the lower's basin's 7.5 million acre-feet among Arizona (2.8 million
acre-feet), California (4.4 million acre-feet) and Nevada (0.3 million
acre-feet). The act also authorized the interior secretary to act as the sole
contracting authority for Colorado River water use in the lower basin.
River Basin Compact of 1948 created the Upper Colorado River Commission and
apportioned the upper basin's 7.5 million acre-feet among Colorado (51.75
percent), New Mexico (11.25 percent), Utah (23 percent), and Wyoming (14
percent). A small part of Arizona that lies within the upper basin also was
apportioned 50,000 acre-feet annually.
Storage Project of 1956 provided a comprehensive upper basinwide water
resource development plan and authorized the construction of Glen Canyon,
Flaming Gorge, Navajo, and Curecanti dams for river regulation and hydropower
production, as well as several projects for irrigation and other uses.
California ( 3/9/64), in which the high court settled a 25-year dispute
over the then-envisioned Central Arizona Project and the apportionments of
California and Arizona. The court ultimately ruled that the doctrine of prior
appropriation did not apply to apportionments in the lower basin. It also
decreed that the interior secretary did not have the authority to deliver water
outside the framework of apportionments defined by the law, and it mandated the
preparation of annual reports documenting the uses of water in the three lower
Basin Project Act of 1968 authorized construction of a number of water
development projects, including the Central
Arizona Project (CAP). It also made the priority of the CAP water supply
subordinate to California's apportionment in times of shortage and directed the
interior secretary to prepare, in consultation with the Colorado River Basin
states, long-range operating criteria for the Colorado River reservoir
Coordinated Long-Range Operation of Colorado River Reservoirs of 1970
provide for the coordinated operation of reservoirs in the upper and lower
basins and set conditions for water releases from Lake Powell and Lake Mead.
They were amended in 2005.
River Basin Salinity Control Act of 1974 authorized desalting and salinity
control projects, including the Yuma Desalting Plant, to improve Colorado River
Several other laws, contracts, documents and court orders have become part of
the law since then. Also, the federal Endangered Species Act and various
American Indian claim settlements influence the extent to which water
developments and diversions can be used in the basin.
Minute 319, the accord between the United States and Mexico allowing Mexico
to store some of its annual allotment of Colorado River water in the United
States, also provides for environmental and waterway improvements in Mexico
(2013 WLPM, 2/27/13).
The five-year agreement provides for a pilot program allowing for Mexico to
store its Colorado River allotment in Lake Mead for future use in addition to
water infrastructure improvement projects, funded by U.S. water districts in
exchange for a share of the water the projects will save.
Minute 319 is
another example of the flexibility of the Law of the River but also its
complexity. While it was entered into by two parties, the U.S. and Mexico
sections of the International Boundary and Water Commission, it also involved
input from the Bureau of Reclamation and roughly 15 water agencies and officials
in the seven basin states.
Under the agreement, Mexico will leave as much as 1.5 million acre-feet in
Lake Mead over five years, raising the surface of the lake by as much as 15
feet, according to Jayne Harkins, executive director of the Colorado River
Commission of Nevada in Las Vegas. Raising the level will help ensure that water
flows continue from the lake, the primary water source for Las Vegas, according
In addition to long-term water supply benefits for Mexico, a goal of the
agreement is to enhance wetlands and riparian environment along the Colorado
River valley in that country, she said.
Also under the deal, the Nevada agencies and the Central Arizona Water
Conservation District will contribute $2.5 million each to Mexico over three
years beginning in 2013. The Metropolitan Water District of Southern California
will contribute $5 million over the five-year term.
There is no interstate governance commission involving all seven basin states
like the International Boundary and Water Commission comprised of officials in
Mexico and the United States.
States, tribes, and federal agencies add to, enforce, and abide by the
principles of the law. Representatives of state water agencies, such as the
state engineer or departments of water resources, participate in the informal
discussions that lead to changes in the law by way of congressional and state
legislative action, court rulings, treaties, and compacts.
States in the study group also cast a wary eye on suggestions for mutual
forbearance by the upper and lower basins, a voluntary demand cap in the upper
basin, and river flow redistribution based on population, Shields said.
With respect to the flexibility of the Law of the River, Buschatzke cited as
the most substantive recent addition the interim guidelines approved by the
Interior Department in 2007 to develop management strategies during drought and
low reservoir conditions.
River Interim Guidelines for Lower Basin Shortages and Coordinated Operations
for Lake Powell and Lake Mead were designed to provide greater certainty
to the lower basin states about the amount of annual water deliveries in future
years, particularly under shortage conditions.
Because of a drought that ultimately lasted eight years, the Interior
Department applied pressure on the states to participate in the development of
new shortage guidelines.
The process began when the drought spurred the upper basin states to say to
the department, “We want to release something less than the 8.23 million acre
feet” required under the Law of the River, Kowalski said.
Against this background, then-Interior Secretary Gale Norton initiated a
public process in May 2005 to develop additional operational guidelines and
tools for drought conditions in the basin.
While water storage in Lake Mead, Lake Powell, and other reservoirs afforded
great protection from drought, the basin needed detailed, objective operational
tools so the department and the states could make informed decisions if
shortages caused reservoirs to continue to dwindle, Norton said.
The states were challenged to craft the new guidelines in the context of the
Law of the River, Brothers said. “Norton basically said, 'You work it out, or
I'll work it out for you,’ ” she said.
“The 2007 guidelines are a great example of change that allows the lower
basin states to store water in Lake Mead and have it delivered at a later time,”
Jerla said. “If you had suggested it to someone 20 years ago, they might have
said, 'That's crazy, and the Law of the River won't allow that to happen.’ ”
The experience showed “we can find flexibility in the Law of the River, avoid
litigation and fights, and avoid opening up the compact,” Buschatzke said.
“The 2007 guidelines were a huge change,” Jennifer Pitt, director of the
Colorado River Program at the Environmental Defense Fund in Boulder, Colo., told
BNA. “But for some people, they did not go far enough.”
The necessity of change “tends to reflect where the basin is in water use and
the perception of whether or not we are in an age of limits,” Pitt said. “The
Law of the River has changed over time and will continue to change over
“This report was not the end-all, be-all, but a report for this point in
time,” Hasencamp said. “In the future there will be more willingness to look at
all the things we didn't look at with this study.”
Ignoring the legal issues could ultimately put the upper basin states at the
biggest risk, Kenney said.
“If you avoid having this conversation and you wait until the system crashes,
that's when the lower basin states will use their political muscle to go to
Congress, and Congress will impose a solution to their liking,” he said.
“My money's more in California than on Wyoming,” he added.
Supply and demand solutions must be accompanied by legal solutions, he said.
“Even if you start bringing in icebergs and building pipelines, the legal issues
are still there,” he said. “You put new water in the system, and you still have
to decide: Whose water is it?”