What happens when the law of the river and the river no longer work well together?
One hundred years of the Colorado River Compact — the agreement that divides 15 million acre feet of water each year among the seven states of the Colorado River basin and Mexico — has wrecked on the shoals of a drier climate and 22 years of drought.
The compact as is doesn't work anymore, various water and legal experts say.
The river is over-appropriated — there’s much more demand for the water than there is supply — and that gap is growing.
The crisis on the Colorado River is growing.
Not one to mince words, John Entsminger, the general manager of the Southern Nevada Water Authority in Las Vegas, put it this way: "We are at the stage where, basin-wide, every drop counts, and where every single drop we are short of achieving 2 to 4 million acre-feet in permanent reductions draws us a step closer to the catastrophic collapse of the system, as well as draconian water management practices to protect health and human safety that we have successfully staved off in the past through cooperation."
Entsminger, in fact, was sitting in the congressional hearing in June when federal Bureau of Reclamation Commissioner Camille Touton called on the seven basin states to come up with a plan to cut 2 to 4 million acre-feet of water use next year. She gave the states 60 days to produce a plan. That deadline passed on Aug. 16 with no plan from the states.
Touton testified that the Colorado River system is at a tipping point, in danger of collapse. The heart of the system, the two largest reservoirs in the United States, Lake Powell and Lake Mead, had fallen to roughly 25% capacity and are in imminent danger of losing their ability to pass water downstream and generate the electricity that serves millions across the basin.
When the compact was signed in 1922, the 15 million acre-feet projection was considered conservative; the river could generate 18 million acre-feet in a good year. As it turns out, neither number was based on the best science of even that long ago day, according to authors John Fleck and Eric Kuhn, veteran Colorado River observers. The numbers embraced by the compact were more about politics and the desire for economic growth.
In 1922, the population of the seven states of the Colorado River basin stood at about 5.8 million. Today, that’s only slightly higher than the population of just one of those states — Colorado.
Today, the river generates around 11 million to 12 million acre-feet of water per year, and is expected to cover the water needs for 40 million people, and vast, critical to the nation agricultural enterprises.
As Entsminger said, every drop counts.
The states respond
The call for conservation of water next year is enormous. By comparison, 4 million acre-feet of water is more water than was used by all four upper basin states in 2021, according to Andy Mueller, general manager of the Colorado River Conservation District.
The upper basin states — Colorado, Wyoming, Utah and New Mexico — sent in a letter to the Bureau in July, detailing five proposals that didn't prescribe actual reductions. That plan included:
• Restarting the System Conservation Pilot Project, which provides temporary, voluntary and compensated measures to help keep water levels up in Lake Powell;
• Development of a 2023 drought response operations plan to be finalized by next April, which would determine the effectiveness of potential releases from the major upper basin reservoirs — Blue Mesa, Navajo and Flaming Gorge — to protect critical elevations at Glen Canyon Dam;
• Considering an upper basin demand management program, which could pay for voluntary and temporary water reductions, and which is under review by the Upper Colorado River Commission; and,
• Continuing strict water management and administration within the available annual water supply in the upper basin states. That could include expanding intrastate water conservation programs, as well as regulation and enforcement tied to the states' prior appropriation doctrines.
Arizona and Nevada came up with a plan to conserve 2 million acre-feet, half of the high end of what Touton was calling for, but that plan was rejected by both California and the federal government.
Touton told the Senate Natural Resources Committee the Bureau would do what it had to in protecting the Colorado River system, and if the states didn’t come up with a plan, her agency would.
By not unifying behind a plan, the states effectively called her hand. On Aug. 16, Touton announced the states would have more time but didn’t set a deadline. She decreed new cuts for Arizona and smaller ones for Nevada, already prescribed by law. But the bottom line is that the Bureau of Reclamation also didn't present a plan to conserve, 2-4 MAF of water. At least not yet.
At the same time, the Bureau released a 24-month study on levels at the two lakes and projected Lake Mead would drop below 1,050 surface elevation feet, triggering another round of already-agreed to cuts.
Nevada's Entsminger, in an Aug. 15 letter, put it succinctly, "... despite the obvious urgency of the situation, the last sixty-two days produced exactly nothing in terms of meaningful action to help forestall the looming crisis."
Big water providers respond
Entsminger has also famously written that the populations of Denver, Salt Lake City, Albuquerque, Phoenix, Las Vegas and Los Angeles could be evacuated without achieving enough water savings to resolve the crisis. After all, agriculture uses 70-to-80 percent of the water across the basin.
But it was Las Vegas and other major municipal and public water providers, four from Colorado — Denver Water, Colorado Springs Utilities, Aurora and Pueblo — that may have broken the deadlock on Aug. 24, when they delivered to Touton a memorandum of understanding outlining their own agreed-upon plan.
The providers said they are developing the kinds of conservation actions that every community that relies on the Colorado should be using.
No one country, basin, state or water use sector can meet the amount of water needed to save the Colorado, the letter said, and while municipal water use is just a small fraction of total use of the Colorado, "progress begins with one and then many until we are all moving in the same direction."
The MOU includes the Southern Nevada Water Authority, the Colorado utilities, and, notably, the Metropolitan Water District of Southern California, the largest provider of drinking water in the nation and one that relies on the Colorado for 25% of its water supply.
The plan calls for turf replacement programs, eliminating the bluegrass lawns that require extensive irrigation in residential neighborhoods across the Southwest. Las Vegas has long been involved in that effort. Los Angeles announced restrictions this year, and in Colorado, Aurora is moving forward with that goal.
The big providers also called for increasing water reuse and recycling programs, expanding efficiency programs tied to indoor fixtures and appliances, and increased coordination between land use and water planning efforts.
"Climate change and overuse of the Colorado River have put us squarely within the crisis we long saw coming," said Jim Lochhead, CEO of Denver Water. "The bottom line now: We all need to work on solutions, no matter our individual impacts on river flows.”
Most experts acknowledge that the solution must also go through agriculture. Particularly, in California, Arizona and Colorado — the three states that get the largest allocations — the agricultural sector uses 80% of the water delivered from the Colorado River.
U.S. Sens. John Hickenlooper, the Colorado Democrat and John Barrasso, a Republican from Wyoming, have teamed up on legislation to re-authorize a system conservation pilot program that was allowed to lapse several years ago. The legislation, to be known as the Colorado River Basin Conservation Act, would pay farmers and ranchers for voluntary water conservation. According to Barrasso, it would also allow for "development and testing of innovative responses to drought conditions" in the Colorado River Basin.
Non-governmental organizations are also putting up conservation proposals.
Western Resource Advocates estimates the annual deficit in the river could reach 3.8 million acre-feet by 2060. Their solutions include municipal conservation and reuse, which they estimate would save up to 2.2 million acre-feet; agricultural efficiency, such as voluntary irrigation efficiency, regulated irrigation, rotational fallowing, crop shifting and water banking that could reduce water use by 1 million acre-feet; greater use of renewable energy, which could result in savings of 160,000 acre-feet; inland desalination, which could generate 620,000 acre-feet in savings; dust-on-snow management (a problem that leads to earlier and faster snowmelts), with 400,000 acre-feet of savings; and, removing dense invasive plants in upland areas for 30,000 acre-feet in savings.
The Nature Conservancy, through its "Water 22" program, is encouraging consumer conservation and education, from small steps like taking shorter showers or fixing leaky faucets, to adding "water-wise landscaping."
Compact contributes to the crisis
The 1922 compact, the heart of the “law of the river,” still dictates the river deliver 7.5 million acre-feet per basin per year, despite the fact that the river no longer supports that much water.
There are problems in how the compact works, according to James Eklund, a water attorney with Sherman & Howard and former director of the Colorado Water Conservation Board. The upper basin states, in accounting for their apportionment, take into consideration evaporative loss. One study showed Lake Powell losing 860,000 acre-feet in one year from evaporation.
The lower basin states ignore evaporative loss. California with annual apportionment at 4.4 million acre-feet expects exactly that. Eklund also pointed to the problem of having Lake Powell and Lake Mead located in two of the hottest states, Arizona and Nevada, in the Southwest, where long-range climate forecasts all say it will be hotter and drier.
“If you were an alien, you would not have designed the system that way,” he said.
The fundamental nature of the river is changing, Eklund said. It’s a crisis, and in order to undo big things, or renegotiate, a crisis is what it takes, he said.
The leadership from each state should be coming to the table, he also said, adding, “We’ve never had the crisis to mobilize (action) until now.”
Colorado’s share of the river primarily feeds the state’s agricultural economy, through a series of trans-mountain diversions. Eklund is among those who see agriculture as part of the solution to the crisis.
When a drought contingency plan was signed in 2019, he said he hoped the upper basin states would start working on a program to pay farmers and ranchers to fallow land on a temporary basis or switch to less water intensive crops, with those water savings banked in Lake Powell.
“We had three years where we could have stored water. Not one molecule was stored,” Ecklund said.
He also warned what could happen to the upper basin states, which said in their five-point plan that they had limited opportunity to conserve more water, placing the onus on the lower basin states, and especially Arizona.
“If that’s the attitude, you won’t be invited into the room where the new plan is hammered out. You don’t have anything to offer,” Eklund said. “If you’re not at the table, you’re on the menu."
That could leave the upper basin states on the short end for some of the $4 billion for drought relief included in the Inflation Reduction Act, signed last week by President Biden.
Aaron Citron of the Nature Conservancy offers a different view of the Upper Colorado River Commission's five-point plan, particularly given the federal money.
The upper basin plan is something, he insisted. If they could get a system conservation pilot program back up and running, it would pay farmers and ranchers to temporarily forego some of their water, using some of that $4 billion.
“It will get some water back into Powell and more importantly, rebuild interest in doing a demand management program," he said, referring to temporary, voluntary and compensated water reductions on farms and ranches, intended to bank 500,000 acre-feet of upper basin water in Lake Powell.
The demand management program is part of the 2019 drought contingency plan with a requirement that all four upper basin states agree to it. If any one state doesn’t go along, the plan would be scrapped. The Colorado Water Conservation Board had been involved in the concept, but put it on hold last March.
Citron said the Upper Colorado River Commission is doing its own feasibility assessment on upper basin demand management, with results expected later this year. If it goes forward, he hopes the CWCB will get back on board and make decisions.
“That’s a critical next step,” Citron said.
As for the lower basin states, they need to make tough decisions, including permanent water usage reductions, which Citron called “necessary."
Eklund is not the only one suggesting that another look at how the river is managed may be in order, but it’s an idea that could prove costly, at least legally.
"We’re now in a position where the legacy model no longer works and we need a new model” in time for interim drought guidelines that will be updated in 2026, said Colorado Attorney General Phil Weiser. “If the Bureau (of Reclamation) can bring people together to reach that, great, but if they unilaterally try to dictate what Colorado could do, we’re probably in for a discussion."
That could mean lawsuits and the courts. However, Weiser does not support reopening the compact to address the supply numbers, telling Colorado Politics doing so would put the entire structure on the table, which isn't desirable.
Eklund doesn't favor a rewrite, either.
"We can solve the misbehaving river without blowing up the compact," he said. "We can honor the priorities in the law of the river, but shouldn't let the law of the river paralyze us into inaction, which is what's happening right now."
However, Eric Kuhn, who spent 37 years in an advisory role to the Upper Colorado River Commission and recently retired as general manager of the Colorado River Conservation District, suggested the compact ought to get another look – comments he made at a June conference.
The law of the river has not adapted to climate change, Kuhn told Colorado Politics.
He and co-author John Fleck recently concluded that the upper basin states are at a substantial disadvantage in negotiating the future of the river. Kuhn and Fleck also disputed the water savings claimed by the upper basin states, which they say amounted to about a million acre-feet of water in 2021.
The Blame Game
Mueller, general manager of the Colorado River Conservation District, said there have been savings, mostly from West Slope irrigators. He points to upper basin commission data that showed the four states used just 3.5 million acre-feet last year.
At the same time, the Colorado River produced about 11 million acre-feet of water, far short of the 15 million required by the compact. He said overconsumption by the lower basin states had broken the upper states' water bank at Lake Powell.
“We live within the hydrology of the Colorado River,” Mueller said. When there’s less water, the state’s demands go unmet, and what’s important is that no one pays water users when they don’t get their allotment. That hits hardest on Colorado’s agricultural production, he said.
Mueller estimates the lower basin states have been taking about a million acre feet per year more than they’re allowed.
“That’s a serious problem for the entire system,” he said.
He also believes, like the upper basin commission, that Colorado has given what it can.
“I don't think there's anything more to give in the state of Colorado. We gave already; we reduced our uses during this drought and we've lived with the hydrology that we have,” he said, adding Colorado has been able to fulfill its end of the 1922 compact.
The lack of an agreement among the lower basin states has already had consequences. Just last December, an agreement among the lower basin states, known as 500+, would return 500,000 acre-feet of water to Lake Mead in 2022 and 2023, hoping to forestall the next cut if the lake dropped below 1,025 feet elevation. The Gila River Indian Community and Colorado River Indian Tribes in Arizona agreed to return 179,000 acre-feet.
The three lower basin states pledged $100 million to incentivize farmers, water providers and tribes to reduce water use.
But the truce didn’t last. The Arizona tribes announced last week that, in response to the lack of agreement, they would bank their water themselves in aquifers instead of returning it to Lake Mead.
“We are aware that this approach will have a very significant impact on the ability of the State of Arizona to make any meaningful commitment to water reductions in the basin state discussions, but we cannot continue to put the interests of all others above our own when no other parties seem committed to the common goal of a cooperative basin-wide agreement,” the tribal letter said.
The city of Tucson backed out last Tuesday, and took their 30,000 acre-feet promise with them.
"We can't do it alone," Mayor Regina Romero reportedly said.
The seven states
Mueller and others, including Adel Hagekhalil, general manager of MWD of Southern California, believe a seven-state plan is the only answer.
“We all need to figure out ways to consume less water, not necessarily because the commissioner of the Bureau of Reclamation is telling us to, but because the hydrology has changed drastically in the last 20 years and, and has accelerated tremendously over the last five years,” Mueller said.
Hagekhalil told The Denver Gazette and Colorado Politics that his agency has changed how it manages water, diversifying its portfolio to rely on other sources that will protect the supply from the Colorado River.
“I believe Metro Water can lead the way” for the upper and lower basins, he asserted.
He called for a common basis for water management, with rule one being using water only for essential purposes. That means no nonfunctional turf or flood-type farm irrigation, for example.
“You cannot force a farmer to fallow land while someone is flooding fields, or go to a city where everyone is conserving and someone is over-irrigating non-functional turf,” he said.
"This is the chance of a lifetime,” he said, pointing to the billions in federal dollars that are being pledged for infrastructure and drought relief.
The biggest obstacle, he said, may be the lack of trust among the seven states.
“This is the time for all of us to take off our blinders and build trust,” he said, adding the seven states must get out of playing the “blame game.”
Hagekhalil said it's ultimately up to the states and not the federal government to come up with a plan to save the Colorado River.
“The question is how we can help folks who are committed to reducing water consumption and make them whole. We all need to realize if we don’t have a voluntary, collaborative solution, the feds and the Bureau will impose their own conditions,” he said. “That’s what we should be watching for.”
Climate change and drought have brought the Colorado River system to its knees. For it to rise again will require intense cooperation and mutual sacrifice.