Click the link to read the newsletter on the Aspen Journalism website (Heather Sackett):
Colorado River politics is heating up with the looming negotiation of the post-2026 operational guidelines and state representatives are laying the groundwork to get Colorado’s water world on the same page regarding the state’s position and talking points.
Colorado’s now full-time commissioner to the Upper Colorado River Commission Becky Mitchell has embarked on what she called a road show, meeting with water managers and organizations around the state to open the lines of communication and share news related to the negotiations. Among what she called her “irrefutable truths” is that according to the 1922 Colorado River Compact that divided the waters equally (7.5 million acre-feet per year to each) between the upper and lower basins, the upper basin states (Colorado, Utah, New Mexico and Wyoming) do not have an obligation to deliver 7.5 million acre-feet of water per year to the lower basin. What they have is a “non-depletion” obligation. So long as the upper basin uses less than 75 million acre-feet over 10 years, there’s no compact violation. I doubt the lower basin sees it that way.
What the compact actually says is this: “The States of the Upper Division will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre-feet for any period of ten consecutive years…”
Its actual meaning has long been a point of contention for Colorado River scholars. Many people believe the language represents a de facto delivery obligation, with the upper basin required to send 75 million acre-feet over 10 years to the lower basin.
This delivery obligation interpretation favors the lower basin and the non-depletion obligation interpretation favors the upper basin. It’s important because whether the upper basin violates the compact, which would trigger mandatory cutbacks, may hinge on this interpretation.
Also, presumably in an effort to communicate the state’s positions going into the post-2026 negotiations — while presenting it as the Law of the River 101 — representatives from the Colorado Attorney General’s office made an appearance at the Colorado Basin Roundtable meeting in July and pushed the non-depletion point of view as the law of the land. While seeing it as a non-depletion obligation is a very good political messaging strategy for the upper basin, it is in fact an unsettled legal argument.
Another wrinkle in the non-depletion vs. delivery obligation debate is climate change. Scientists have found that Colorado River flows have declined nearly 20% from the 20th century average and that higher temperatures are responsible for about one-third of that. The compact clearly says that the states of the upper division will not cause flows to be depleted, but what if it’s not the states’ water use (which remains well below their 7.5 million acre-feet per year allocation), but climate change that causes flows to be depleted? Would that still be considered a compact violation? Colorado River expert and author Eric Kuhn has been asking this question for years, but he isn’t ready to test it.
“Will it survive legal scrutiny? I’m not sure I would want to be the attorney that leads with that argument,” he said.