Special Report: #ClimateChange is sapping #Colorado’s #water supplies. Can its hallmark water law stave off crippling shortages? — @WaterEdCO

The Greeley No. 2 Canal is cleaned and reshaped during work earlier this month. (Courtesy photo/Dale Trowbridge)

From Water Education Colorado (Jerd Smith):

Editor’s Note: This week, in a special collaborative report with nine other Colorado news outlets, Fresh Water News and the Colorado News Collaborative examine Colorado’s hallmark “first-in-time, first-in-right” prior appropriation doctrine. The doctrine is coming under increasing scrutiny as the state’s rivers and reservoirs dry out. We go on the ground from Evans to San Luis to Cortez to see how the venerable doctrine, which has shaped water distribution across the West, is working.

This report is based on the work of the nine media outlets, Fresh Water News, and the Colorado News Collaborative, undertaken as part of a water news training program for journalists. The journalists are: Trevor Reid, The Greeley Tribune; Michael Elizabeth Sakas, Colorado Public Radio; Zack Newman, 9News; Kate Perdoni, Rocky Mountain PBS; Jim Mimiaga, The Cortez Journal; Philip Poston, the Aurora Sentinel; Olivia Emmer, The Sopris Sun; Priscilla Waggoner, the Valley Courier; and Tara Flanagan, the Ark Valley Voice. This program was made possible by a grant from the Colorado Media Project and the Denver-based Gates Family Foundation.

In Evans, Colo., four miles south of Greeley, houses are shooting up.

Once a quiet farm town, Evans is scrambling to come up with enough water to slake the thirst of hundreds of new homeowners, drawn here by comparatively affordable housing.

“We have enough water in our water portfolio to meet the needs of our existing population,” he said.

But future water needs will have to be met by developers, who are required to buy water and bring it to the city for use. It’s an expensive process that can often mean nearby irrigated farmland with old, high value water rights is bought and then dried up so the water can be transferred to cities.

While large northern Colorado cities like Loveland, Greeley and Fort Collins have older water rights, and have been able to buy extra water over the years, small cities like Evans haven’t had enough money to do so, Becklenberg said.

Water from acequias, a shared collection of gravity-fed irrigation ditches have been a historical part of irrigation in the San Luis Valley. Acequia San Antonio via Judy Gallegos

Gold, silver, land

In Colorado, acquiring water is a complicated undertaking due in part to Colorado’s hallmark “first-in-time, first-in-right” water law, known as the prior appropriation doctrine.

The doctrine dates back 150 years to when Colorado was a territory rich in gold, silver and land, but not water. It evolved to ensure no one could hoard water and deprive others of its use. Any farmer, miner or homesteader could claim water on a stream, divert that water, and put it to use, establishing a place in the priority system of water rights. It was a common person’s dream and had a certain fairness to it, ensuring that whoever got in line at the drinking fountain first, as University of Denver law professor Tom Romero puts it, gets to drink first. Everyone else takes their turn later.

But the doctrine is coming under increasing scrutiny as the state’s rivers and reservoirs dry out and tens of thousands of people continue moving here every year. Is prior appropriation up to the task of divvying up the state’s water in an era of increasingly frequent and severe drought conditions? It depends on whom you ask.

David Robbins, a water attorney who represents water districts in some of the state’s most water-strapped regions, such as the Rio Grande and Lower Arkansas basins, says the prior appropriation system is a sturdy, legally tested allocation system.

“To people who want water and don’t have water, the system doesn’t feel fair because they can’t have what they want. But that would be true under any system,” Robbins said. “Somebody has to make decisions and water has to be allocated. It doesn’t and can’t satisfy everybody’s desires because water is inherently finite.”

In Colorado, a water right is a private property right that can be bought and sold, with certain conditions. Older, more senior water rights, because they are entitled to water first during dry times, are more valuable because they are more reliable.

Water rights are officially entered in the system only after they’ve gone through the state’s special water courts, where the law requires that diversion histories are certified, that diversion amounts are quantified, that times of use are established, and that other water systems on the same stream are not injured by a new water claim. The law also requires that water only be applied toward a list of legally defined “beneficial uses,” including farming, mining, drinking water, and environmental flows, among others.

Brad Udall: Here’s the latest version of my 4-Panel plot thru Water Year (Oct-Sep) of 2021 of the Colorado River big reservoirs, natural flows, precipitation, and temperature. Data (PRISM) goes back or 1906 (or 1935 for reservoirs.) This updates previous work with

Benchmarks fall

Pressure on the system is rising as water supplies hit record lows. The Colorado River, for instance, may see a crucial water benchmark fall as the river’s flows continue to decline. The river system supplies Colorado communities and growers all across the state. In as little five years, according to climate researcher Brad Udall, the Upper Colorado River Basin states of Colorado, Wyoming, Utah and New Mexico, may not be able to deliver the 7.5 million acre-feet of water they are required to annually to Arizona, California and Nevada under the terms of the 1922 Colorado River Compact.

If that happens, many Colorado communities with water rights junior to 1922 could see their water supplies slashed so that the state can meet its legal obligations.

And a movement known as the Rights of Nature for Rivers is suggesting that Colorado’s rapidly drying streams need better protection under the prior appropriation system, such as giving first dibs on streamflows to rivers to protect their ecological value instead of to whomever has the oldest right to pull that water out…

List of priority acequia water users dating back to 1905. (PBS Photo)

Thousands of water rights

Colorado has more than 164,000 water rights on file, according to data analyzed by 9News.

Agriculture uses roughly 86% of Colorado’s water and the state’s oldest, most historical water rights are found in a small, communal farm community that includes San Francisco and San Luis in the Rio Grande Basin’s San Luis Valley.

Here, water use dates back to the 1600s, but those water rights weren’t brought into the state’s prior appropriation system until the mid-1800s when water officials still rode on horseback to check diversion structures and irrigation ditches.

To the families of the San Luis Valley, the acequias, as their ditches are known, are a liquid thread feeding a farming culture that existed long before Colorado became a state.

And many of the ranchers here, including Charlie Quintana, believe the prior appropriation doctrine, known informally as the priority system, has stood the test of time.

In his pocket is a list of the water rights and their dates for the area’s acequias. “The acequias are the priority system,” he says.

From the 2018 Tribal Water Study, this graphic shows the location of the 29 federally-recognized tribes in the Colorado River Basin. Map credit: USBR

Rights on paper

Native American Tribes too hold some of the oldest water rights. And prior appropriation has profoundly affected the way those tribes’ have developed.

In Southwestern Colorado, just miles from the New Mexico state line, the Ute Mountain Utes, like dozens of Native American tribes, have valuable, very old water rights that were granted as part of the Winters Doctrine, a landmark 1908 U.S. Supreme Court decision that gave tribes enough water to fulfill the needs of their reservations. That decision backdated tribal water right priority dates to the date the reservation was established. Theirs dated back to 1868. But for more than a half-century, the tribe never had the money or the expertise to claim the water formally in Colorado’s water courts and to develop the measuring devices, dams and ditches required to put it to beneficial use, as the prior appropriation system requires.

As a result, in a 1988 water rights settlement, the tribe traded its 1868 paper water rights on the Mancos River in exchange for more junior wet water rights in the Dolores Project, a federal storage system on the Dolores River that stores water in McPhee Reservoir, said Mike Preston, a water consultant for the tribe.

Now one of the tribe’s largest employers, the Ute Mountain Ute Tribe Farm and Ranch Enterprise, has a water right that is much younger and therefore less valuable.

This year, it received just 10% of its water, as did other farmers in the Dolores Project. If it had been able to put its 1868 water rights to beneficial use 150 years ago, it would have still been affected by the drought, but it would have had more water.

Now, as the drought continues, the tribe is redoubling its efforts to study and claim all of its water rights, including on the San Juan River, said Ute Mountain Ute Chairman Manuel Heart.

Homestake Creek flows from Homestake Reservoir near Red Cliff. A pilot reservoir release to test how to get water to the state line in the event of a Colorado River Compact Call proved hard to track for state engineers.

Cities double down too

Like other junior water rights holders, the fast-growing City of Aurora, Colo., has worked hard to secure a seat at the water table, spending millions of dollars buying older water rights when it can find them, and developing new junior water supplies when it can.

“Aurora got into the water game late,” said Greg Baker, Aurora Water’s manager of public relations.

Aurora was wholly served by the city and county of Denver until 1954 when Denver Water put into place a “blue line” no longer granting permits for new taps in the ever-growing metropolitan area, leaving parts of Aurora out of Denver’s service region.

The completion of phase one of the Homestake Reservoir, which the city shares with Colorado Springs, was in 1967 and, with that, Aurora was able to become completely self-reliant when it came to supplying water to its residents.

Though Aurora has been aggressive in buying water rights and building storage, 10% of its supplies come from reusable water developed through its $637 million Prairie Waters Project. Completed in 2010 the large-scale reuse system captures Aurora’s wastewater after it is released into the South Platte River, then filters it through a system of wells and sand and gravel pits, treating it and mixing it with fresh water before it is delivered to residents.

Without its large tax base, Aurora would have had a much harder time developing a reliable water system in modern times when most of the state’s oldest water rights are already taken.

The Crystal River at the fish hatchery just south of Carbondale was running at about 10 cubic feet per second on Oct. 13, 2020, much lower than the state’s instream flow standard of 60 cfs. Rivers in the Roaring Fork watershed have seen below-average streamflows in water year 2020, which ended Oct. 1, despite a slightly above-average snowpack. Dry soil conditions threaten to bring a similar scenario in water year 2021. Photo credit: Heather Sackett/Aspen Journalism

Pretty smug

Even communities with older rights, though, are seeing supplies dry up as climate change and drought sap stream systems where water once was plentiful.

Bill Fales has been raising cattle on Cold Mountain Ranch in Carbondale, Colo., since he moved here in 1973. In his 48 years working the approximately 600-acre mosaic of pastures, of which around 250 are irrigated, Fales has experienced some tough years, when the Crystal River ran low, but largely felt confident about having the water he needed.

That confidence has been eroding.

“2018 was really bad, 2020 was really bad, 2021 was pretty terrible. I used to be pretty smug and think, ‘Well, hell, my right’s 1883. I’ll still be standing out here with my shovel, irrigating my alfalfa, and the guys in Denver will turn on the faucet to brush their teeth and nothing will come out,” Fales said.

But these days he’s worried that little will help farm and urban users with water shortages that are beginning to appear.

Other subdivisions in the Crystal River Valley have long relied on wells next to the river. But in the drought of 2018, the subdivisions’ taps ran dry. They scrambled to drill a new well under their 1971 water right. But that would not be enough. Soon they learned that their water use, for the first time ever, was harming a senior 1902 water right holder farther down the river system.

Now the homeowners are buying water to offset their own water use under a state-required plan to prevent any more harm to the senior water right holders on the stream.

Planting rye after potatoes on Nissen Farms in the San Luis Valley’s Mosca, Colo., with the Great Sand Dunes in background on Oct. 21, 2021. (Erin Nissen)

Taxing itself to survive

Far to the southeast, in the San Luis Valley, water too is in short supply. Here, in what is the second-largest potato growing economy in the nation, farmers are under orders to reduce groundwater pumping to protect the Rio Grande River and ensure Colorado can meet its legal obligation to deliver millions of gallons of water to New Mexico and Texas.

More than a decade ago, farmers voted to tax themselves to solve the looming legal water crisis, using the revenue to buy irrigated farmland and dry it up, so that unused water could remain in the aquifer that supplies the river. But the relentless series of droughts the state has endured since 2002 have wiped out much of the farmers’ work to restore the aquifer. If the situation doesn’t improve soon, the state could shut off thousands of irrigation wells.

To prevent that from happening, farmers will vote next year on whether to dramatically raise penalties for over-pumping from $150 per acre-foot to $500, an increase long-time farmer Don Shawcroft believes will provide the necessary jolt to convince valley farmers to change their irrigation strategies.

“This valley relies on agriculture, and agriculture relies on water. If that water is shut off or worse – used up – none of these towns will survive,” he said. (Editor’s note: Shawcroft sits on the board of trustees for Water Education Colorado, which sponsors Fresh Water News.)

Denver Water’s entire collection system. Image credit: Denver Water.

The challenge will come

Whether prior appropriation will weather the coming dry years remains to be seen.

“What prior appropriation does really well is provide certainty. It’s a sophisticated system, but in principal and theory it’s simple,” says DU’s Romero. “We know that when there is not enough water those at the front of the line get their water. That creates predictability and certainty. Historically, it has also provided opportunity,” he said.

But the challenge will come, he said, “when you envision uses that aren’t prescribed, or if you need access to the water and need to reallocate it. Running it through our water court system is pricey. It requires expertise and investment…who is in the best position to cover those costs?

“It’s either big private water developers and the state, or water utilities like Denver Water and Aurora Water. They are in the best position to cover those costs, which raises a big question: Is this market scheme going to serve the public interest?”

Bowen Ditch Company secretary Tara Flanagan at the corner of her land, where the channel crosses to the south. (Tara Flanagan)

Ask someone on the ground

Tara Flanagan is secretary of the Bowen Ditch Company in the Upper Arkansas River Basin. Keeping this 140-year old ditch functioning requires backbreaking labor, pre-dawn emails between neighbors, and faith that each spring the snow will fall, melt, and flow down to the handful of families still relying on it for water.

Flanagan, who is also a reporter for the Ark Valley Voice, describes the prior appropriation system as her “frenemy.”

“In a perfect world, nobody would need to care one iota about the words prior appropriation, which at first glance is an eye-glazing term that has spent entirely too much time living in the heads of politicians and water lawyers – as well as the tattered log book for the Bowen Ditch Company that sits under my desk.

“But people have died over prior appropriation, so there’s that.

“Prior appropriation means this,” she continues. “The date when your water rights were officially filed with the State of Colorado has everything to do with you getting water on your fields and how long you are able to have it. Unlike birth certificates and things stored in your refrigerator, the earlier your date, the better.”

The journalists are: Trevor Reid, The Greeley Tribune, treid@greeleytribune.com; Michael Elizabeth Sakas, Colorado Public Radio, msakas@cpr.org; Zack Newman, 9News, zack.newman@9news.com; Kate Perdoni, Rocky Mountain PBS, kateperdoni@rmpbs.org; Jim Mimiaga, The Cortez Journal, jmimiaga@the-journal.com; Philip Poston, the Aurora Sentinel, pposton@sentinelcolorado.com; Olivia Emmer, the Mt. Sopris Sun, olivia@soprissun.com; Priscilla Waggoner, the Valley Courier, pwaggoner@alamosanews.com; and Tara Flanagan, the Ark Valley Voice, tara@arkvalleyvoice.com.

Paper: Quenching Thirst in the #ColoradoRiver Basin — #Colorado #Water Center #COriver #aridification

Detailed Colorado River Basin map via the U.S. Bureau of Reclamation.

Click here to read the paper (Karen Kwon and Jennifer Gimbel). Here’s the executive summary:

There is little dispute that the Colorado River Basin (CR Basin) is thirsty. In an attempt to learn from that condition, this series on the Colorado River (CR) is intended to provide an understanding of issues and relationships that have shaped the CR Basin so that the historical doctrines can bend to the needs of the present and future without eroding a foundation upon which we all stand.

Made up of a combination of tributaries and mainstem flows, the CR runs from its Rocky Mountain headwaters in Wyoming and Colorado to the Gulf of California in Mexico. Along its journey, the CR supplies water to millions of people and millions of acres of irrigated agriculture. It also serves to generate affordable power supplies for various municipal and rural customers and is a driving life source for Tribes, national parks, and countless wildlife species throughout the CR Basin.

The CR Basin has been enduring a prolonged drought since 2000 with no apparent relief in sight. The 2021 water year was one of the driest in the CR Basin’s recorded history. Moreover, the current 20-year period ranks as the second driest in the last 1,200 years. The sci- ence presents a cautionary tale that the abundance of 20th Century water sup- plies may be a thing of the past. On the ground experience and various models demonstrate a regularly hotter, drier fu- ture for the CR system going forward. In other words, it may not be just a persistent drought but a more pronounced drying of the system that the CR Basin is experiencing.

At the same time, there remains a strong need to support and maintain the agricultural spirit that has defined much of the West’s heritage for well over 100 years. There is also a significant pull to sustain urban cities in places like Los Angeles, San Diego, Denver, Phoenix, Tucson, Las Vegas, Santa Fe/ Albuquerque, Salt Lake City, and Cheyenne that rely on CR water to help supply their growing populations. Not to be overlooked, there is an ever-growing recognition that various Native American Tribes hold legitimate claims to the CR to support their cultures, reservations, and homelands throughout the desert southwest. Finally, there is the added pressure to provide for all of these and other demands without deteriorating the aesthetic and ecological values of the CR Basin.

Brad Udall: Here’s the latest version of my 4-Panel plot thru Water Year (Oct-Sep) of 2021 of the Colorado River big reservoirs, natural flows, precipitation, and temperature. Data (PRISM) goes back or 1906 (or 1935 for reservoirs.) This updates previous work with

The present challenge is to determine how to best manage the highly erratic and possibly declining CR water supplies to fit within expanding values and growing demands for CR water while respecting the storage and distribution systems upon which societies have been built over the past century. Past experience teaches us that neither protracted litigation in courts nor political maneuvering through Congress will guarantee successful outcomes in response to the CR Basin’s complex challenges. Instead, collaboration and cooperation are also necessary ingredients for thriving in the 21st Century. For the CR Basin, this requires a commitment to and focus on cooperation and beneficial arrangements among varying interests to help mitigate and adapt to changing conditions throughout the region.

This CR series encourages such commitments by providing background and context regarding the forces that have compelled the development and operation of the CR from the 1920s to today. It provides a more in-depth examination than may otherwise be identified in news stories and articles of four primary forces that influence decision making on the CR: (i) History, Law, and Policy on the CR; (ii) Indian Reserved Water Rights in the Colorado River Basing; (iii) Environmental Perspectives in the Colorado River Basin; and (iv) Sharing the CR Between the U.S. and Mexico Insight into how the CR Basin has arrived to where it is today will hopefully help inform how best to direct where it needs to be tomorrow.

Eugene Clyde LaRue measuring the flow in Nankoweap Creek, 1923. Photo credit: USGS via Environment360

History, Law, and Policy

The framework for present-day CR operations can be traced to the history, law, and policies dating back to the early 1900s. Water users in California were seeking federal assistance to construct and operate federal facilities that would even out and reliably distribute the erratic flows of the CR. Elsewhere, other CR Basin States were concerned that the “Prior Appropriation Doc- trine” would be applied across state lines to allow California’s water users to lay claim to the CR before others had a chance to develop any water. In response, the seven CR Basin States (Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming) collectively persuaded Congress to authorize negotiation of the CR Compact. As the first interstate water compact in the country, the CR Compact is the keystone to a series of laws, regulations, and agreements, commonly referred to as the “Law of the River,” that have been used to guide the operations and management of the CR System up through today.

The Law of the River governs the distribution and uses of the CR System among the seven CR Basin States and the Republic of Mexico. Most would agree that it includes two multi-state compacts, an international treaty, a U.S. Supreme Court decision and decree, an extensive body of federal legislation, and numerous agreements, permits, and regulations. The pieces of the Law of the River serve as a foundation upon which the CR Basin has stood when determining questions of authority, rights, and obligations about CR use and management within the Basin. They are the result of countless negotiations, litigations, congressional hearings, and trade-offs beginning in the 1920s that have influenced the development of not only water but also societies, economies, and cultures from the peaks of the Rocky Mountains to the deltas in the Gulf of California.

The Law of the River’s primary focus is on water supply. It revolves around apportionment of the CR water supply, construction of federally authorized projects to aid in accessing and developing the CR water supply, and regulation and operation of the federal infrastructure to distribute the CR water supply.

Through the years, the application and expansion of the Law of the River have worked to moderate conflict and provide some sense of order amidst great uncertainty. That does not mean that the Law of the River is the panacea for all things related to the CR. It is not a Magic 8 Ball that one can shake to reveal the answer. There are differences of opinions concerning its application and interpretation that require regular attention to avoid the threat of conflict and controversy. There are also complex matters that the Law of the River has either kicked down the road or simply overlooked.

Nonetheless, it remains the foundation around which societies and individuals have built identities and a way of life. Moreover, it has demonstrated through the years that it can evolve and grow with the times. With that understanding, it appears time yet again to examine and elaborate on the Law of the River to help meet the needs required of the CR Basin today.

Many Indian reservations are located in or near contentious river basins where demand for water outstrips supply. Map courtesy of the Bureau of Reclamation.

Indian Reserved Water Rights in the Colorado River Basin

The 30 federally recognized Tribes1 in the CR Basin collectively hold rights to almost 20 percent of the CR water supply. Twelve of those Tribes still await a process for recognizing and quantifying additional rights to the water. While each Tribe maintains its own views and unique perspectives on the CR Basin, it is safe to say that many consider the CR to be sacred, and all rely on the CR resource in some manner for cultural, social, economic, and spiritual survival.

Tribes obtain rights to a significant portion of their water supplies based on the doctrine of federal Indian reserved water rights. This doctrine stems from the U.S. Supreme Court’s decision in Winters v. United States in 1908. In Winters, the Court held that the U.S. had impliedly reserved the amount of water necessary to help accomplish that purpose for establishing the reservation of the Tribes in question. This case serves as the foundational element to the doctrine of reserved water rights, and federal Indian reserved water rights are often referred to as “Winters rights.”

Winters rights have some unique characteristics. First, they are held in trust by the U.S. for the benefit of the relevant Tribe(s). The trust responsibility is a legal obligation for the federal government to protect Native American resources and assets and manage them in the Tribes’ best interests. Second, federal Indian reserved water rights exist independent of use, cannot be lost due to nonuse, and can displace other water rights who commenced water uses after the land reservations for Tribes were created. Third, the volume of a federal Indian reserved water right is limited by the amount of water determined to be necessary to fulfill the purposes of the reservations.

The CR and Upper CR Basin Compacts leave the door open for Tribal water rights to be recognized within the CR Basin. They do not, however, clarify how such rights should be integrated with the compact apportionments of water among the States. This “omission” has been a source of debate regarding, among other things, the magnitude of valid reserved rights claims to CR water, the volume of water reserved under each federal Indian reserved right, and the accessibility/use of federal Indian reserved rights within the CR Basin.

The magnitude of valid CR reserved right claims has yet to be fully defined. In Arizona v. California, the U.S. Supreme Court pronounced that uses of mainstream CR water by the U.S. (which is assumed to apply to Tribal reserved rights) is limited to the uses apportioned to the CR Basin States by compact or decree. However, questions remain. Among them are whether the Court’s decision applies to rights that existed before the CR Compact or to sources other than the CR mainstream? Moreover, how will recognition of any federal Indian reserved water right implicate or affect existing rights held by non-Indian water users within a state?

The process for quantifying federal Indian reserved water rights is not guaranteed to produce successful results. Congressional quantification requires political jockeying to finalize legislation, which can be problematic if politically powerful interests are pitted against each other inside the U.S. capitol. Judicial quantification often involves decades long proceedings at great cost to Tribes, governments, and water users alike. Negotiated settlements have become a preferred approach to quantifying federal Indian reserved water rights. They have the potential to clarify Tribal water rights while garnering support for resolving long-standing uncertainties and avoiding litigation. However, they are not always successful either. Unless and until a majority of people from each negotiating party feel they have received fair consideration of their rights and interests, the likelihood of agreement and congressional consent remain fleeting.

Access to water entitled to Tribes under a federal Indian reserved water rights remains another critical element to addressing uncertainties related to water uses in the CR Basin. Many Tribes with water rights on paper (statute, court decree, and settlement agreement) still struggle to secure access to sufficient water to meet the basic needs of their communities because they lack the necessary infrastructure to provide the water where it is needed. Unlike courts, negotiated settlements approved by Congress can include terms for funding and construction of water infrastructure that allows Tribal communities to gain actual access to their quantified rights.

From the 2018 Tribal Water Study, this graphic shows the location of the 29 federally-recognized tribes in the Colorado River Basin. Map credit: USBR

As water supplies tighten and policy makers contemplate innovative water management strategies for the CR Basin, there is a growing realization that Tribal considerations and water rights to CR sources are key elements to the continued operation of the system. Recent examples of important Tribal contributions include the 2018 CR Basin Ten Tribes Partnership Tribal Water Study and the 2019 CR Drought Contingency Plans.

Environmental Perspectives in the Colorado River Basin

Conservation efforts to protect watersheds, lands, and resource qualities began to take hold in the U.S. in the 1960s and 1970s. Laws such as the Clean Water Act, Wilderness Act, and Wild and Scenic Rivers Act, are some of the environmental statutes that still serve as an environmental overlay to existing management frameworks throughout the country.

The CR Basin is comprised of watersheds and resources that are unmatched in nature. It is home to an abundance of national parks and monuments, provides irreplaceable habitat for multiple rare and endemic fish and wildlife, serves as a source of refuge for migratory birds traversing the Pacific Flyway and accommodates a Delta Region that once served as one of the most biologically diverse places on the continent. A recreational magnet for fishing, boating, rafting, swimming, skiing, rock climbing, hiking, camping, and kayaking enthusiasts around the world, the CR also makes up an essential part of the cultural fabric for Tribal and other communities spanning both the lands of snow and sun in the mountain and desert southwest.

Despite the undeniable richness of the CR Basin’s environmental and cultural assets, natural resource policy and management decisions are frequently dominated by consumptive use and water allocation considerations within the CR Basin. This structure, however, has proven somewhat malleable through the years. Policies to consider natural resources, minimize environmental harms, and protect, improve, or enhance river assets in key areas have become part of the societal norm as awareness of environmental values has grown. Such policies have also led to procedural requirements and substantive programs that supplement the basic management principles for the CR system.

Species Protection within the Upper and Lower Colorado River Basins The CR is home to a large number of native species that are found nowhere else in the world. Demands for water and power and the introduction of non-native species through the decades have transformed CR Basin ecosystems. Governments, Tribes, and stakeholders have collectively worked in key areas to develop mechanisms and programs intended to encourage imperiled and native species to succeed. Programs such as high flow release events from Glen Canyon Dam, mechanical removal of non-native species, and recovery implementation programs have become (and will continue to be) integral to the CR Basin’s overall health.

Grand Canyon Spring flowing directly into the Colorado River. Photo credit: From the Earth Studio

Protection of Grand Canyon National Park Resources

The CR is essential to the Grand Canyon National Park. Flowing through 277 miles of the park, from Marble Canyon (just downstream of Lee Ferry and Lake Powell) to the Lake Mead National Recreation Area, the CR has shaped the complex natural and cultural histories of the park and surrounding region. The National Park Service (NPS) manages the Grand Canyon to conserve resources within park boundaries and provide for the enjoyment of those resources for current and future generations. However, the CR resource is also managed by seven CR Basin States and the Bureau of Reclamation (Reclamation) to provide water and power to millions of people and irrigated acres in the U.S. and the Republic of Mexico. These two missions do not always align neatly and require continuous efforts to balance and integrate the values and responsibilities associated with managing the Grand Canyon National Park with the obligations to manage the CR system pursuant to and consistent with the Law of the CR.

The release of water was carefully planned at strategic points near restoration sites to maximize impact.
Photo Credit: Jesús Salazar/Raise the River via the Walton Family Foundation

Colorado River Delta and Cienega de Santa Clara

At one point, the CR Delta spanned over 1.9 million acres of wetlands and marshes in the U.S. and Mexico that were fed by the CR and the Sea of Cortez. It was home to “green lagoons” that provided habitat for fish, dolphins, mollusks, birds, beavers, deer, bobcats, and even jaguars. However, efforts to divert, dam, and channel the CR to farms and cities throughout the 1900s have caused the CR Delta to be only a trace of its former self. Collaborative agreements consistent with the 1944 Water treaty have taken hold more recently to promote binational measures for reviving parts of the Delta. Future management decisions with binational implications will likely have to take into account ways to further mitigate and restore portions of the Delta and its riverine areas going forward.

Salton Sea shoreline screen shot of drone video June 11, 2016. Credit Palm Springs Desert Sun.

Salton Sea Management and Mitigation

The Salton Sea is an important food source as well as a nesting, wintering, and stopover site for thousands of bird species in Southern California. Irrigation runoff from farms in the region have been the primary water source for the Salton Sea since its most recent formation in 1905. Changes to CR supplies in the early 2000s as a result of a regional agreement among water users have drastically reduced the Salton Sea’s inflow. The resulting adverse impacts to both public health and wildlife in the region have been cause for significant environmental and financial concerns. Some California water users are demanding attention to address the Salton Sea in future CR management efforts.

Incorporating environmental resource policy into water supply man- agement decisions is an ongoing process. As the CR Basin continues to work through its complex water challenges, it will be important to consider how to further integrate the environmental values that support the CR Basin going forward. Past lessons suggest that the extent to which a balance can be struck will be informed not only by the changing conditions of the CR Basin but also by the inter- est and willingness of governments, Tribes, water users, and scientists to work together to fully address the real-world challenges of our times.

Tanya Trujillo panel with U.S. Commissioner Maria-Elena Giner & Commissioner Adriana Resendez discussing Mexico and U.S. management of the Colorado River at the 2021 Colorado River Water Users Association Annual Conference. Photo credit: IBWC

Sharing the Colorado River Between the U.S. and Mexico

The CR is a source of both tension and triumph in the overall U.S.-Mexican relationship. The binational challenges and problem-solving efforts employed to address U.S./Mexico water management issues provide useful lessons when looking to the next steps in CR System operations.

The last 100-mile reach of the CR flows through Mexico. There, it forms a boundary and serves as the primary source of water for agriculture and domestic water in the states of Baja California Norte, and Sonora. The CR also serves as the freshwater source for the CR Delta on the Gulf of California (Sea of Cortez). Today, however, the CR only reaches the Gulf under rare conditions that usually require heavily negotiated arrangements to remain consistent with the terms and expectations of the Law of the River.

The 1944 Treaty on Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande (hereinafter 1944 Water Treaty) apportions the CR (and other rivers) between the U.S. and Mexico. Under the Treaty, the U.S. guarantees Mexico 1.5 million acre-feet (maf) of CR water each year. In the event of an “extraordinary drought or serious accident” reductions can be made to Mexico’s allocation in proportion to shortages taken in the U.S. The Treaty also established the International Boundary and Water Commission (IBWC) as an international body to administer the U.S. – Mexico water treaties. The IBWC consists of both a U.S. and Mexico Section that exist to implement the Treaty provisions, exercise the rights and obligations of both governments under the Treaty, and settle all disputes that arise under the Treaty, subject to authorities of each country’s federal government. To accomplish these duties, the Treaty authorizes the IBWC to develop rules and issue proposed decisions called “Minutes.”

Minutes adopted pursuant to the 1944 Treaty have addressed a range of issues, including the operation and maintenance of cross-border sanitation plants, water conveyance during droughts, dam construction, and water salinity problems (among others). Recently, Minutes have addressed international cooperation on projects and the sharing of CR water during shortage and surplus conditions.

Review of the events and binational relationship status leading up to each of these Minutes reveals that international negotiations on multiple basin-wide issues are particularly difficult. Differences in language, culture, laws, economic structure, and geography bring to light that the U.S. and Mexico manage water and prioritize and perceive issues in the CR Basin differently. Bridging such diverse views takes time, commitment, and high stakes to motivate all parties to reach an agreement. It also takes the shared recognition that both countries are better off reaching an agreement than operating in conflict and uncertainty.

Overall, the lessons of sharing the CR between the U.S. and Mexico demonstrate that binational collaboration is a critical piece to addressing complex CR management challenges going forward. To be successful, such collaboration will require dedicated commitment from leaders and representatives in both countries to perpetually invest in relationships that can inform and produce beneficial outcomes for both sides of the border.