Conference Talk Summaries: ‘The #ColoradoRiver Compact – Navigating the Future’ (@CUBoulderGWC) — @WaterWired #COriver #aridification

Colorado River “Beginnings”. Photo: Brent Gardner-Smith/Aspen Journalism

Click the link to read the report on the Water Wired website (Michael Campana):

Last week on 17 – 18 March 2022 a two-day conference on ‘The Colorado River Compact – Navigating the Future’ was held at the University of Utah’s S.J. Quinney College of Law in Salt Lake City…

This year marks 100 years since the Compact was signed in November 1922.

The Colorado River Compact divided the basin into an upper and lower half, with each having the right to develop and use 7.5 million acre-feet of river water annually. (Source: U.S. Geological Survey via The Water Education Foundation)

Day 1 – 17 March 2022

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

Speaker 1: Jason Robinson, University of Wyoming College of Law
An introduction relating how all of us are sitting here in this room 100 years after the Colorado River Compact was written. Look at how ideas have changed There are 30 indigenous tribes within the Colorado River Basin, many with water rights unrecognized. The first ever shortage officially declared on the Colorado river was in summer of 2021, but there has been a supply and demand imbalance since the very beginning. Jason finished his short speech with the comment “For culture is the soil which law and policy grow.”

Signing ceremony for the Colorado River upper and lower basin Drought Contingency Plans. Back Row Left to Right: James Eklund (CO), John D’Antonio (NM), Pat Tyrell (WY), Eric Melis (UT), Tom Buschatzke (AZ), Peter Nelson (CA), John Entsminger (NV), Front Row: Brenda Burman (US), and from DOI – Assistant Secretary of Water and Science Tim Petty. Photo credit: Colorado River Water Users Association

Speaker 2: Tanya Trujillo, Assistant Secretary for Water and Science, U.S. Department of Interior.
Progress made regarding the Colorado River is slow, but it progresses, nonetheless. The Department of Interior is trying to work quickly to rebuild and protect the system of the Colorado River. Part of the 2022 drought response operations is protecting the Lake Powell elevation at 3525 feet. This is the chosen elevation to protect due to hydropower generation and the location of downstream bypass tubes. In the past the “law of hydrology” has been ignored, but this time around the science of hydrology is being considered. Mexico and indigenous populations are being included within the conversation.

September 21, 1923, 9:00 a.m. — Colorado River at Lees Ferry. From right bank on line with Klohr’s house and gage house. Old “Dugway” or inclined gage shows to left of gage house. Gage height 11.05′, discharge 27,000 cfs. Lens 16, time =1/25, camera supported. Photo by G.C. Stevens of the USGS.
Source: 1921-1937 Surface Water Records File, Colorado R. @ Lees Ferry, Laguna Niguel Federal Records Center, Accession No. 57-78-0006, Box 2 of 2 , Location No. MB053635.

Speaker 3: Larry MacDonnell, University of Colorado Law School
In 1922 when the Colorado River was divvied up there was 17.3 MAF annually flow out of Yuma to Mexico. It was decided that with storage there could be 13.93 MAF/yr of water used for irrigation within the basin. The storage of this water uses dams to control flooding, store water, and create hydropower. Four critical elements decided on by Delph E. Carpenter about the Colorado River Compact are: 1) Dividing the basin into two parts, the upper and lower; 2) “Equal” division of all systems as measured in Yuma; 3) Flow guarantee at Lee’s Ferry over a 10 consecutive year period; and 4) Mexico’s needs for the water must also be considered.

Minute 323 environmental section signing. Photo credit: Colorado River Water Users Association

Speaker 4: Anne Castle, University of Colorado Law School
Anne shared a history over time of the Colorado River Compact and the changes that have been made to it since 1922. In 1928 there was the addition of the Boulder Canyon Project where the lower basin states entered an interstate agreement for allocation. In 1944 Mexico was added to the treaty receiving 1.5 MAF annually. In 1948 the upper basin states created allocation by percentages, not fixed volumes and established the Upper Colorado River Commission naming a commissioner from every state. This also included the penalty box provision where a framework was created to curtail states for using more water than they were allocated. 1952 contained a conflict between Arizona and California about who gets the extra 1 MAF, what beneficial use is, and how we account for evaporation. SCOTUS made a decision in 1963 but only reinterpreted the Boulder Canyon Project Act which only accounts for water in the mainstem of the river and not the tributaries. In 1968 the Colorado River Basin Project Act set long range operation criteria for reservoirs. The 21st century contained the worst megadrought this area has experienced in the last 1200 years which affects the whole system. In 2007 Interim guidelines were set for the sharing of shortage/surplus of water as well as water banks and lake contents. These guidelines are set to expire in 2025 and contained reductions to Arizona and Nevada’s delivery. In 2012 the historic binational agreement Minute 319 was with Mexico to create more environmental efforts and allow Mexico to store water in US reservoirs. In 2017 Minute 323 was passed as a renewal of Minute 319 but included a drought contingency plan that expires in 2026. Current efforts are focused on the 500+ Plan which is a commitment to conserve 500,000 acre-feet/year. Demand management is being investigated on a state-by-state basis.

North American Indian regional losses 1850 thru 1890.

Speaker 5: Margaret Vick, Colorado River Indian Tribes
Margaret shared a timeline of what was happening in indigenous communities pre and post Colorado River Compact as well as what obligations the U.S. has to Tribal communities. The Homestead Act of opening “public lands” to settlement coincided with the removal of tribes from their native lands. During the 1900s lands not allotted as “reservations” were divided and sold, the reservation land went from 138 million acres in 1887 to 48 million in 1934. In 1934 the Indian Reorganization Act which “recognized” tribes if they adopted constitutions that were respected by the federal government. The time of assimilation also occurred during this time which included the removal of children and the banning of native language and culture. During this termination era more than 100 tribes lost their land and benefits. Tribes formed the NCAI and other organizations to oppose termination, but it ended with the enactment of Civil Rights 1968. Currently there are 16 tribes with existing federal irrigation projects, but the US “owns” 25-30% of water in the basin on behalf of tribes.

The difference between the terms equality equity and liberation illustrated. Credit: Shrehan Lynch https://www.researchgate.net/publication/340777978_The_A-Z_of_Social_Justice_Physical_Education_Part_1

Speaker 6: Bidtah Becker (Navajo Nation), California EPA, Environmental Justice, and Border Affairs
California has created a truth and reconciliation council for the impacts the United States has had on Tribal communities. The federal government must be a leader in helping tribes determine on what they should focus their energies on. She ended her remarks with a quote that “We live in an equity moment and could be an equity historical period.”

All American Canal Construction circa. 1938 via the Imperial Irrigation District

Speaker 7: Carlos de la Parra, Restauremos el Colorado
The Colorado River Basin includes Mexico, but they were not added onto the Colorado Compact until a later time, Mexico got 10% of water from the Colorado River because World War II and good neighbor policy as well as the fact that Mexico has oil that the US wanted. Also in Mexico water is a property of the nation. The All-American Canal is still an unresolved dispute with Mexico because it stopped seepage into the wetlands at the base of the Colorado River, this caused Mexico the environmental impact of this canal. We are currently in a “hot drought” which decouples surface temperatures and precipitation. This creates variation in water quality and delivery. The Advocacy Coalition was created to bridge the gap between environmental advocacy and citizen diplomacy.

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

Panel: Science and Governance: Overallocation à Climate Change and Megadrought
C. LaRue was a USGS scientist during the time the Colorado River Compact was written, he shared that the approximation regarding flow rates were made during a very wet period. He testified before congress, but no one really wanted to hear about it because it would make the situation “inconvenient.” The changes in temperature are changing water usage in agriculture through changing evapotranspiration, but these continual changing processes are always being added to the models.

The Whanganui is a major river on the North Island of New Zealand. The Whanganui River is a major river in the North Island of New Zealand. It is the country’s third-longest river, and has special status owing to its importance to the region’s Māori people. In March 2017 it became the world’s second natural resource (after Te Urewera) to be given its own legal identity, with the rights, duties and liabilities of a legal person. The Whanganui Treaty settlement brought the longest-running litigation in New Zealand history to an end. Dana Zartner, CC BY-ND via The Conversation

Speaker 8: Bob Adler, University of Utah S.J. Quinney College of Law is supposed to represent societal values and change with those values. Roscoe Pound said that “The law must be stable, but it must not stand still.” In 1922 “beneficial use” was described as human use, this is just one part of the compact being written with an anthropogenic mindset. The idea of the environment was not added to the compact until the 1956 where the idea of natural resources was included, but only on public lands where dams were built. All environmental regulations put in place for conservation purposes lay below the Colorado River. There are constraints politically for moving forward with environmental regulations, through the multiple layers of government. Alder suggested the “Rights of Nature Theory” as a solution to the issues within the basin.

Day 2: 18 March 2022

Wheat fields along the Colorado River at the Colorado River Indian Tribes Reservation. Wheat, alfalfa and melons are among the most important crops here. By Maunus at English Wikipedia, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=47854613

Panel 1: Future Management
Many management plans are expiring in the years 2025-26, if another plan is not made before then we will fall back to the Department of Interior plan from 1976. Equitable solutions have conflicting objectives of honoring the law that is already in place, but also trying to please all parties. Management decisions going forward must work with legal and political constraints, public involvement and consensus building, and the sound technical knowledge of science. There are different management decisions between the Upper Basin, Lower Basin, Mexico, and the 30 Tribes. It is interesting to talk about these management decisions going forward when there is not even clean water access for everyone within the basin. The lack of the bureaucracy isn’t something the basin is suffering from, but there must be a balance of creating a completely new system while using the system we have as a framework.

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
@GreatLakesPeck.

Panel 2: Climate Change and Next Management Framework:
Brad Udall, a senior water and climate researcher at Colorado State University, reported some climate statistics and warned that we must be open to the possibility of really low flows. As the population grows and we add uses to the river we must also realize that this puts a stress on the river, but these short-term problems do bring light to long term problems for all. Amy Haas of the Colorado River Authority of Utah spoke about how the river has been ravaged and only hard choices are left. These climatic changes are happening so fast that management can’t keep up. She spoke how perfection is no longer attainable and how there must be equity conversations and support between the two basins. Tom Buschatzke is the head of the Arizona Department of Water Resources and he shared statistics about the water usage in Arizona as well as the 30-40% of land in central Arizona that will become fallowed due to the current struggles with water. Arizona has seen a 600% growth in population since 1957 but has seen a 3% decrease in water usage. Finally, Tina Shields of the Imperial Irrigation District shared how 1/6 of jobs in her region are related to agriculture as well as the importance of food safety and security and how the Southwest feeds this country and the world. She finished with a call of need to give farmers more tools so there can be an increase in production and a decrease in water use.

A slide presented by Andy Mueller, general manager of the Colorado River District, on Sept. 14, 2018 at the district’s seminar called ‘Risky business on the Colorado River.’ The slide shows how water from the Colorado River system, within the state of Colorado, is used.

Panel 3: Strategies to Equitably Share Water
Equity is an emotional issue; it is how we relate to each other. Jack Schmidt, Utah State University, stated how we have created a novel ecosystem of native and non-native species and have completely changed the ecosystem through the addition of dams. There must be a decision made to what part of the river we care about, and what is really going to matter in times of changing temperature. Some parts of the Colorado River have NO water, we must be mindful of this when we create a clear vision of what we want for the future. Jay Weiner, Rosette, LLP, Attorneys at Law who represent some of the native tribes in the basin stated that “what is fair is not necessarily equitable.” Water is flowing upstream to money but there are reservations where there is no access to water rights, yet under prior appropriation the Tribes were “first in time.” Andy Mueller from the Colorado River Conservation District spoke on how agriculture is being painted in a bad light, because majority of ag is working on providing food for the growing populations.

NOTE: Ms. Isabella M. Ayala was a student in my GEOG 440/540 class, Conflict, Cooperation and Control of Water in the USA during the winter 2022 term at Oregon State University, Corvallis, OR. We studied the Colorado River Basin quite a bit. She asked if she could write a summary of talks at the conference and I agreed. I did not attend the meeting and all I contributed to her summary was some minor corrections. – Michael E. Campana, Professor of Hydrogeology and Water Resources Management, College of Earth, Ocean and Atmospheric Sciences, OSU.

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