The mighty Colorado River is endangered. Persistent massive drought, exacerbated by climate change, overuse, and ever-rising demand, has taken a heavy toll.
Water levels have dwindled and remain at a historic low in Lake Mead and Lake Powell, the largest human-made reservoirs in the United States – so low in Lake Mead a year ago that it came close to hitting dead pool status, which occurs when water levels are too low to generate electricity.
This wet winter’s record-breaking snowpacks will not resolve the crisis: with just a few consecutive dry winters in the future, dead pool status will likely be a reality.
The Colorado River supplies water and electricity to 40 million people. It irrigates farmland and meets the various needs of industry and municipalities. The Colorado River basin covers seven U.S. states – the upper basin states of Wyoming, Colorado, Utah, and New Mexico, and the lower basin states of Arizona, Nevada, and California – and two states in Mexico, Baja California and Sonora.
In 1922, the Colorado River Compact was formed to manage the Colorado River. For a hundred years, it provided certainty and predictability, with federal legislation and guidelines filling the gaps. In 2007, a set of Interim Guidelines to the Compact were established, which are set to expire in 2026, when new ones are to take effect.
The current drought, which began in 2000, compelled the Western states to adopt a Drought Contingency Plan in 2019 for all seven states. The upper basin states were required to reduce their take of the Colorado River water.
The hard reality is that, although the seven states recognize that they must adapt to water scarcity and cut the use of water substantially, they have not been able to reach an accord despite negotiations and dialogues to ensure that the river becomes healthy so it can meet their needs.
And the federal government has cut some water allocations and has offered billions of dollars to pay cities and farmers to make cuts for their use. The Department of the Interior’s Bureau of Reclamation has had to step in to address the unprecedented water shortages in the Colorado River Basin.
On April 11 the Bureau released its environmental analysis, which offered alternatives to address potential shortages. Deputy Secretary Tommy Beaudreau said, “Recognizing the severity of the worsening drought, the . . . administration is bringing every tool and every resource . . . to protect the stability and sustainability of the Colorado River System now and into the future.”
Camille Calimlim Touton, the commissioner of the Bureau of Reclamation, said that they have had ongoing engagement with the Basin states along with the 30 Basin Tribes, water commissioners, water managers, farmers, municipalities, and other stakeholders.
Three alternatives were presented, including one for no action. Action alternative number one relies on the priority of water rights, while under the second alternative, reductions are distributed in the same percentage across the three lower basin water users. This is unlike the 2019 Drought Contingency Plan and the earlier 2007 Interim Guidelines that reflect the priority system.
The difficulty is that California and several tribes want to protect their high priority rights as they use the River’s water for drinking and farming, while the other six states consider this to be an appropriate time to find an approach under which the River waters are fairly shared.
Beaudreau has given no indication of how the seven states should agree on a plan. States, tribes, and other water users may comment until May 30 before a formal decision is announced by federal officials.
Consensus among the seven states has not been in sight. Although California is willing to voluntarily cut its use by 400,000 acre-feet, it wants Arizona and Nevada to offer bigger cuts on their part. California has also indicated that the state will pursue legal challenges if its priority rights are ignored. The discussions with Mexico as to how it might contribute to the savings are ongoing.
There is no choice but for the states to agree on taking conservation measures and making big cuts. Otherwise, the federal government will have to decide for them.
Ved Nanda is a distinguished university professor and director of the Ved Nanda Center for International Law at the University of Denver Sturm College of Law. His column appears the last Sunday of each month and he welcomes comments at vnanda@law.du.edu.
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