Click the link to read the article on the Big Pivots website (Allen Best):

October 24, 2024

Colorado River Basin states have scaled back their demands on the river. But agreement about solutions proportionate to the challenge remains distant as the 2025 deadline nears.

The story so far: Andy Mueller, the manager of the Colorado River District, the lead water policy body for 15 counties on the Western Slope of Colorado, used his organization’s annual seminar this year to call for the state to begin planning for potential curtailments of diversions. The river has delivered far less water in the 21st century than was assumed by delegates of the seven basin states when they drew up the Colorado River Compact in 1922. Might higher flows resume? Very unlikely, given what we know about climate change. See Part I of the series and Part II.

In 2009, I wrote a story for a magazine  about the possible need for curtailment of water diversions in Colorado because of the Colorado River Compact. It may have been the first such story in the popular press, but even in 1951 a legal advisor delivered a memo to state officials on this topic. For a sorting through of the legal issues published in 2012, see: “Does the Upper Basin have a Delivery Obligation or an Obligation Not to Deplete the Flow of the Colorado River at Lee Ferry?”

“Having a state plan for compact curtailment has been on the table for what seems like forever, likely 2005 to 2007,” said Ken Neubecker. Now semi-retired, he has been carefully watching Colorado River affairs for several decades and has represented several organizations at different times.

Why hasn’t Colorado moved forward with this planning? When I called him to glean his insights, Neubecker shared that he believes it’s because such planning encounters a legal and political minefield.

“It’s not as simple as pre-1922 rights are protected and post-1922 rights are going to be subject to curtailment based on the existing prior appropriation system.”

Front Range municipal water providers and many of Colorado’s agriculture diversions are post-1922 compact. And so are some agricultural rights on the Western Slope.

“I think everybody thinks that well, we’re on the slow-moving train and the cliff is getting closer but it’s not close enough – and there are other things that we can do to slow the train down.”

Taylor Hawes, who has been monitoring Colorado River affairs for 27 years, now on behalf of The Nature Conservancy, suspects that Colorado doesn’t want to show its legal hand or even admit the potential need to curtail water use in Colorado. She contends that planning will ultimately provide far more value.

“The first rule you learn in working with water is that users want certainty. Planning is something we do in every aspect of our lives, and planning is typically considered smart. It need not be scary,” she told Big Pivots. “We have all learned to plan for the worst and hope for the best.”

Colorado can start by creating a task force or some other extension of the state engineer’s office to begin exploring the mechanisms and pathways that will deliver the certainty.

“We don’t have to have all the answers now,” Hawes said. “And just because you start the process for exploring the mechanism to administer compact compliance rules doesn’t mean you implement them. It will give people an understanding of what to expect, how the state is thinking about it.”

Compacts have forced Colorado to curtail diversions in three other river basins: the Arkansas, Republican and Rio Grande. The Rio Grande offers a graphic example of curtailment of water use as necessary to meet compact obligations on a week-by-week basis.

The Republican River case is a more drawn-out process with a longer timeline and a 2030 deadline. In both places, farmers are being paid to remove their land from irrigation. The Colorado General Assembly this year awarded $30 million each to the two basins to bolster funding for compensation.

A study commissioned by the Nature Conservancy that involved interviews with water managers and others in those river basins had this takeaway message: “the longer (that) actions are delayed to address compact compliance, the less ability local water users have to tailor compliance-related measures to local conditions and needs and reduce their adverse impacts.”

In the Arkansas Basin, Colorado had to pay $30 million and water available to irrigators was reduced by one third.

“That’s the first lesson in how not to do compact compliance: do not wait to be sued because (then you lose) the flexibility to do stuff the right way,” said one unidentified water manager along the Arkansas River.

Neubecker points to another basin, the South Platte. Even in 1967, Colorado legislation recognized a connection between water drawn from wells along the river and flows within the river. The 2002 drought forced the issue, causing Hal Simpson, then the state engineer, to curtail well pumping, creating much anguish.

Creating a curtailment plan won’t be easy, Neubecker warns. “It could easily take 10 years. ’Look how long it took to create the Colorado Water Plan. It took a couple years and then we had an update five years later. And that was easy compared to this.”

All available evidence suggests the Colorado River Basin states are nowhere near agreement.

In August, Tom Wilmoth provided a perspective from Arizona in a guest opinion published by The Hill under the title of “Time is running out to solve the Colorado River crisis.” As an attorney he has worked for both the Arizona water agency and the Bureau of Reclamation before helping form a law firm in 2008.

“It has taken 24 years for the problem to crystalize, but less than 24 months remain to develop a solution,” he wrote. “Yet there appears to be little urgency in today’s discussion among the Colorado River Basin’s key players.”

Wilmoth said ”Deferring hard conversations today increases the risk of litigation later.” He, like all others, sees a reasonable chance it would end up before the Supreme Court – with the risk of the justices appointing a special master to adjudicate the conflict. “Its recent tendency has been to appoint individuals lacking in subject matter expertise, a troubling prospect given the complex issues at play.”

Monitoring the conversations from Southwest Colorado, Rod Proffitt sees Mueller trying to prepare people in the River District for the challenges ahead.

“I think he has tried to scare people. He is trying to get them prepared to make some sacrifices, and limiting growth is a sacrifice.”

Proffitt is a director of the Pagosa Springs-based San Juan Water Conservancy District.

A semi-retired water attorney, Proffitt is also a director of Big Pivots, a 501-c-3 non-profit.

Make no mistake, says Proffitt, more cuts in use must be made – and they need to be shared, both in the lower basin and in the upper basin. What those cuts need to be, he isn’t sure. Nor do they necessarily need to be the same.

For example, he can imagine cuts that are triggered by lowering reservoir levels. At a certain point, lower basins must reduce their use by X amount and upper basin states by Y amount.

The federal government has mostly offered carrots to the states to reduce consumption, a recognition of the river’s average 12.4 million acre-feet flows, far short of the flows assumed by the compact. It also has sticks, particularly regarding lower-basin use, but has mostly avoided using its authority. Instead, the lower-basin has reduced use voluntarily, if aided by the federal subsidies.

The Inflation Reduction Act and the Bipartisan Infrastructure Act, have yielded a river of money for projects in the West that broadly seek to improve resiliency in the face of drought and climate change. The seeds have been planted in many places. For example, a recent round of funding produced up to $233 million for the Gila River Indian Community in Arizona for water conservation efforts.

The federal government has also offered incentives to reduce consumption in the upper basin. The System Conservation Pilot Program ran from 2015 to 2018. The 2024 program was funded with $30 million through the Inflation Reduction Act and had hopes for conserving about 66,400 acre-feet.

The federal government, through the Bureau of Reclamation, has clear authority to declared water shortages in the lower basin. It has warned that three million acre-feet less water must be used. The lower-basin argues that the upper basin should share in some of this burden.

Should the federal government get out the stick?

“Nobody wants to apply vinegar this close to the November election,” said James Eklund when we talked in late September about the stalemate on the river.

Eklund has had a long association with the Colorado River. His own family homesteaded on the Western Slope near Colbran in the 1880s and the ranch is still in the family. He lives in Denver, though, and was an assistant attorney in the state attorney general’s office in 2009, when I wrote my first story. He later directed the Colorado Water Conservation Board, the lead agency for state policy.

For the last few years Eklund has been on his own, more or less, a water attorney now working for Sherman and Howard, a leading Denver firm, while trying to represent clients with diverse agriculture water rights.

“Litigation is a failure,” he said when I asked him about Mueller’s remarks in Grand Junction. He contends the upper basin must come to the table with more ideas about how to solve the structural imbalance between supplies and demands than it has so far. And this, he said, will involves some pain.

Creating compact curtailment will involve rule-making, though, and that will take time and effort. Echoing Denver Water’s position, he says it will divert Colorado from the more important and immediate work of helping negotiate solutions.

Eklund suspects an ulterior motive of the River District: to get the state to play its cards on what curtailment could look like so that it can begin jockeying for position.

On the other hand, he believes cutbacks should be premised on two bedrock principles: voluntary and compensated. But Eklund also says that if the situation becomes desperate enough, water will continue to find its way to cities. “The Front Range is not going to bend its knee to alfalfa plants. It’s not going to do it.”

And then, Colorado’s Constitution allows municipalities to take water. It requires compensation.

The Bureau of Reclamation has said the same thing in the lower basin. Las Vegas and other cities will not be allowed to dry up.

But what if compact curtailment means making the hard decision about who doesn’t get water and does not get compensated – people like the farmers near Fort Morgan who, in 2002, had to cease pumping water?

Neubecker characterizes the position of Colorado as one of conflict avoidance. Look at where it got Neville Chamberlain, the British prime minster, in his negotiations with Hitler.

What Colorado must do is prepare for the worst-case scenario. “It’s a doomsday plan,” Neubecker says of compact curtailment. “Make the plan, involve all the people who are going to be effected by the plan, and put it on the shelf – but not too far back on the shelf, just in case you need it”

For now, water levels in the two big reservoirs are holding more or less steady.

Another winter like 2002 could trigger renewed clanging of alarm bells.

In New Mexico, Fleck, the author, who also monitors Colorado River matters at his Inkstain blog, rejects the metaphor of the Titanic or the idea that conflict is inevitable. In 2002, California was still using 5.1 million acre-feet from the Colorado River, both for agriculture and to supply the metropolitan areas of Southern California. This was well above the state’s apportionment of 4.4 million acre-feet. “The rhetoric was that it will be a disaster to California’s economy” to return to the allocated flows.

California eventually did cut back and it has done just fine. “Everybody would prefer not to do the adaptation, but they have done it just fine. We see that over and over again in community responses to drought in the Western United States,” he said.

Lake Powell currently has filled to 40% of capacity, a marked improvement from February 2023, when the reservoir had fallen to 22% of capacity. Mead is at 36% of capacity. The situation is not as tense as it was two years ago. That could change in the blink of another hot, dry runoff like that in 2002.