Back in 2008 a weary John McCain forgot he was in the Denver airport talking to a journalist from The Pueblo Chieftain instead of in Phoenix talking to local media there when he said that the Colorado River Compact should be renegotiated. Here’s a piece I wrote about the incident for the Colorado Independent. John McCain didn’t win Colorado that year.
Renegotiation of the Colorado River Compact (The Law of the River) is rearing its ugly head again. Here’s an article from the Water Law & Policy Monitor (Tripp Baltz) via Bloomberg that looks at the implications from the Colorado River Basin Water Supply & Demand Study released on December 12, 2012 which did not take up the legal issues in the basin. Here’s an excerpt:
…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 years.
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 River.
“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 the study.
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.”[…]
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 the above.”
“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…
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 acknowledged…
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…
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?”