Click the link to read the article on the Audubon website (Jennifer Pitt):
On November 24, 1922, representatives of the seven Colorado River basin states—Arizona, California, Colorado, New Mexico, Nevada, Utah, and Wyoming—gathered in Santa Fe, N.M., to sign the Colorado River Compact, cementing into law a regime for dividing the river’s water. Without exception, these men were newcomers to a region inhabited since time immemorial by Native American Tribes. Two of them represented states just a decade old, none represented states more than 75-years-old, and their purpose was to enable colonial settlers to establish a foothold through irrigation-driven economic development.
On the centennial anniversary of the creation of that consequential document, as Colorado River reservoir levels have plummeted to historic lows, Native American Tribes remain deprived of access to water rightfully theirs, and we see degradation of freshwater-dependent ecosystems throughout the basin, it seems worth asking whether the Compact serves us well.
Today, elected leaders of these seven states still regard the Compact as an essential, foundational document, and despite its flaws, it is still considered the bedrock of “the Law of the River” which also includes International Treaties with Mexico, federal and state laws, and regulations.
They point to the primary intent of the Compact: “to provide for the equitable division and apportionment of the use of the waters of the Colorado River System.” By 1922, “prior appropriation” was established as the law of the land within each of the Colorado River Basin States, meaning those who first took water from the river would have senior water rights and water developments that followed would be subordinated. If there wasn’t enough water to fulfill all the rights, the senior right would get water and the junior would get none. The negotiators from the “Upper Basin” states of Colorado, New Mexico, Utah, and Wyoming shared a concern that water users in “Lower Basin” states California and Arizona would put Colorado River water to use before they could (Nevada is also in the Lower Basin, but so few people lived there in 1922 they were not seen as a threat). The evidence: in 1901, irrigators began diverting vast quantities of Colorado River water onto farms in the Imperial Valley in California and the Yuma Valley in Arizona. The Upper Basin states were not putting anywhere near those volumes of water to use and sought the right to develop at their own pace in the future, without having to worry that the Lower Basin states would claim the entire Colorado River supply in senior rights. The solution in the Compact was to divide the Colorado’s water equally between the Upper and Lower Basins, regardless of the rate at which water was developed.
It is this “equitable division” of the Colorado’s water that many continue to view as essential. A century later, “equitable apportionment” between the basins still sounds reasonable, but if the seven Colorado River Basin States want to keep the Colorado River Compact in place, they have a lot of work to do, because it is indisputable that in 2022 Colorado River management is broken. The most visible problem is evident in reservoirs at historic lows and extraordinarily high risk of crisis-level water shortages for the 40 million people, and 5.5 million acres of farmland that rely on the river—but that’s hardly the extent of it. The Compact overlooked—or deliberately avoided—values we should uphold today as important, including equity for tribal communities and sustainable ecosystem management. Today’s states may view the Compact as essential to keeping the peace, but if they want the Compact to survive, they will need quickly to adapt the Compact to today’s standards by adopting rules and agreements that solve a host of problems:
The Compact cannot not achieve what the states defined as equitable apportionment with today’s river flows. Extended drought exacerbated by climate change has led to an average Colorado River yield of 12.4 million acre-feet of water in recent decades, while the Compact is premised on a flow of at least 16 million acre-feet. The Compact defines how to accomplish equitable distribution of water between the Upper and Lower Basins by prohibiting the Upper Basin from depleting flows to the Lower Basin below an average of 75 million acre-feet in any 10-year period, but there is not enough water for the Upper Basin to meet that obligation and develop another 7.5 million acre-feet of water for annual use. Moreover, as climate change increases aridification in the basin and the average water yield decreases further, the Upper Basin’s access to Colorado River will continue to shrink. In other words, drought and climate change have thrown a wrench into the Compact’s framework for managing the basin. Going forward, the states need either to find a way to fold the realities of climate change into a workable management framework or risk the ramifications of an uncertain future for communities, economies, and ecosystems throughout.
The states negotiated the Compact domestically, and without Mexico at the table they acknowledged both the Upper and Lower Basins would have responsibilities to provide water in event of a subsequent treaty; years later the 1944 Treaty was adopted, but there’s no clarity on which basin is responsible for providing the water. The fact that the states in 1922 saw fit to allocate the Colorado’s water without including Mexico speaks volumes about how their negotiators saw their neighbors to the south. Regardless, the 1944 Treaty guaranteed to Mexico 1.5 million acre-feet of water annually except in the event of extraordinary drought. While the Compact holds that the two basins should share the obligation to deliver that water when there is not enough over and above the U.S. allocations, there is no agreement on what that means legally. For example, does the Upper Basin need to ensure flows reaching the Lower Basin include an extra 0.75 million-acre-feet every year? What would that do to the Upper Basin’s chances of being able to develop its half of the Colorado’s water?
The Compact deliberately avoided incorporating allocations for Native American Tribes, who remain largely cut out of decisions about Colorado River management and in too many cases have not yet gained access to their water. This seems particularly egregious given that the Supreme Court ruled on the basis for determining Tribal water rights in 1908. Winters v. United States holds that Tribes could have an implied right to water based on the terms of their reservation, with seniority based on the Treaty date establishing the reservation. Today, the 30 federally recognized Tribes in the Colorado River Basin have secured rights to as much as 20% of all Colorado River water in the Basin. However, more than a third of the Basin’s Tribes have yet to settle their Colorado River water rights. Moreover, even those with settled rights still lack sufficient infrastructure to access their water rights in a meaningful way, and all the Tribes still lack a formal seat at the table where Colorado River management decisions are made.
The Compact did not recognize and does not acknowledge nature’s water needs. Nowhere in the Compact is there language recognizing the value of water to natural systems as well as the legions of birds, fish, and other wildlife that depend on freshwater-dependent ecosystems. That failure underpins a century of devastating losses. Several programs have been established under the 1973 Endangered Species Act, but too many of the Colorado Basin’s rivers remain unhealthy and at risk. Dozens of species of Colorado River fish and wildlife are listed as threatened or endangered, and the Colorado River Delta, a lush ecosystem of 1.5 million acres, was allowed to dry up and disappear in the middle of the 20th century. The U.S. Bureau of Reclamation has raised the prospect that within the next year or two, it may become impossible to pass water through the Glen Canyon Dam, effectively eliminating the Colorado River surface flows from the Grand Canyon. The Compact’s promise of water for development depends on healthy rivers, and the region’s economies are dependent on the sustainability of natural systems. Yet, in its application, the Compact has allowed harm to the Colorado River and its tributaries, every living thing that depends on them, and all of us who value it for recreational, cultural, and spiritual reasons.
The looming water crisis in the Colorado River Basin calls for urgent management adjustments and adaptations to meet the challenges of today. As the Colorado River Basin States consider how they will share the diminishing water supply, they should at the same time be rectifying the Compact’s mistakes, oversights, and omissions. Audubon will continue to advocate for management that provides improved reliability of water for the 40 million people who depend on it, increased benefits for Native American Tribes from their water rights, and sustainable habitat for the hundreds of species of birds and wildlife that call it home. The Colorado River Basin States need to prove this can be done through adaptation within the framework of the Colorado River Compact and the Law of the River. If they instead use the Compact and other venerable laws to argue these outcomes are not possible, they will be proving the legal framework will need more than adjustment—it will need complete reform.