From email from Brian McNeece:
December 31, 2025
I arrived late to the Upper Colorado River Commission meeting in Las Vegas, having briefly gotten lost in the disorienting maze of garishly lit slot machines, escalators reaching to the heavens, and hallways with a vanishing point at infinity. Could there be a more incongruous place to hold a convention about something so natural and sublime as water?
Just as I took my seat, Becky Mitchell, the forceful, passionate commissioner from the state of Colorado, said something puzzling and important. “The Lower Basin states continue to overuse their allocation of Colorado River water.”
And thus, in my very first minutes at the Colorado River Water Users Association (CRWUA) conference, I had my theme for the next three days. Because, in fact, that is not true. The Lower Basin states of Nevada, Arizona, and California are not overusing their allocation. In fact, last year, they used 6 million acre-feet, 1.5 maf less than their allocation. Why would Ms. Mitchell say that?
I asked this question numerous times in the next few days. I got some arcane answers. Perhaps Ms. Mitchell doesn’t accept that Arizona isn’t charged Gila River water as part of its allocation. Maybe she thinks the Lower Basin should be charged for evaporation losses below Glen Canyon Dam.
One Colorado water attorney brought his own charts to breakfast and showed me how the Lower Basin states had in fact been overusing their allocation—in the past. True, but we’re talking about now. Ms. Mitchell has not answered my email request for an explanation.
Ms. Mitchell apparently stands alone in her assertion that even now, the Lower Basin is overusing water. For after she spoke, neither Brandon Gebhart of Wyoming, nor Gene Shawcroft of Utah, nor Estevan Lopez of New Mexico repeated her claim.
As leader of the Upper Colorado River Commission, Ms. Mitchell has also protested that Mother Nature cuts her users when it doesn’t rain, and therefore Upper Basin states cannot take any more cuts.
But in fact, the Upper Basin has dozens of reservoirs above Lake Powell that right now are holding around 5 million acre-feet of water—about a year and a half of storage at recent Upper Basin use. The Upper Basin has wiggle room for taking emergency cuts.
Even those water users who are directly cut by Mother Nature can take cuts—during wetter years. Currently, the state of Colorado has a provision in its water law known as Free River, which means that when the flow in a creek exceeds the volume needed to fulfill all local water rights, users along the creek are free to divert all the water they want. In 2023, the South Platte River was in Free River condition for 64 days. This should stop.
Read: Prior Appropriation. A free river is a river or stream reach where the natural flow is sufficient to satisfy all existing decreed water rights, so no administrative curtailment (a “call”) is required.
Jason Turner, an attorney for Colorado River water Conservation District, told the audience that Free River, despite appearances, is not wasteful of water that could otherwise go to the next reservoir downstream. No, he said, this water helps bring moisture deep into the soil, preventing the pasture grass from dying during the later dry months of the year.
Every user on the Colorado River would love to invoke Free River—use as much as you want when times are flush. But seeing the Colorado River system as a whole, times are not going to be flush. The whole region is getting drier, and we have to reduce water north and south.
With her two claims, Ms. Mitchell has extended her character beyond passion and resolve; she is holding positions that challenge the foundation of the Law of the River going back to the Compact of 1922.
It seems that Ms. Mitchell is the adamantine wall preventing progress toward new rules for operating the Colorado River watershed after the interim rules expire next September. The word on the convention floor was that she is willing to ride her position into court, a risky move that almost everyone else wants to avoid. The solution is for the other states to negotiate a deal without Colorado.
This has happened before. Arizona refused to ratify the Colorado River Compact after its commissioner Winfield S. Norviel signed it in 1922, but the deal went forward anyway. Arizona finally ratified the agreement in 1944.
The Lower Basin states of Nevada, Arizona and California have volunteered to continue taking 1.5 maf of cuts into the future, but if deeper cuts are needed, they propose that the Lower Basin and Upper Basin share reductions fifty-fifty. Maybe those numbers can be adjusted somewhat. Wyoming, Utah, and New Mexico, it’s time to make a deal. Colorado can sign on later. Everyone needs to do her part.
[ed. The 1.5 MAF satisfies the structural deficit because the Lower Basin has never been charged for shrink, and it is a significant commitment. However, the Lower Basin folks are talking around the fact that no one has the authority to order mandatory cuts by Colorado diverters; No one has the technology to “color” (account for) the water in the Colorado River due to measurement uncertainty, the lack of structures in place, hundreds of river miles with gaining and losing reaches; The classic paper water vs. wet water dilemma; Prior Appropriation — if the water is in the stream, and a diverter has a decree that is in priority, the it is lawful for the diverter to divert and water bypassed by upstream diverters; Any uncompensated restriction would be a “taking” so a funding stream is needed to pay for compensated savings.]
