Introduction

Eighty-five years ago, representatives of the seven Colorado River Basin states joined then-Commerce Secretary Herbert Hoover at The Bishop’s Lodge in Santa Fe, N.M., to negotiate an agreement to divide the Colorado River. The Colorado River Compact signed on Nov. 24, 1922, was a historic milestone. It was the first time more than three states negotiated an apportionment for the waters of a stream. It divided the watershed into the Upper and the Lower basins and allocated the water between them. It laid the groundwork for construction of Hoover Dam, whose construction changed the course of the Southwest.

The Compact also attempted to look into the future and determine the water needs of the vast Colorado River Basin. But the signers did not realize the river’s flow would one day be insufficient to meet all the demands. Nor could they foresee the immense urban growth, the strong interest in protecting the natural environment and the implications of climate change in the 21st century.

The future of the Colorado River Basin is the focus of much debate as federal officials on both sides of the U.S.-Mexican border along with the states, Indian tribes, environmentalists and others consider a long list of challenges related to water supply, water demand and environmental protection. But the past continues to influence the present as today’s stakeholders interpret the modern-day meaning of the articles that comprise the historic Compact.

Bennett Raley, former assistant secretary for water and science at the Department of the Interior (Interior), credits the Compact with providing stability in the basin. “I would argue that even with its flaws, the Colorado River Compact and the Law of the River are far preferable to the status in virtually any other river basin with significant controversies because the Compact provides stability,” he said. Hoover Dam “Stability does not mean a lack of controversy or a lack of litigation. We may yet see litigation arising out of the adoption of shortage criteria. Stability does mean, however, that there are basic ‘rules of the road’ that allow each party to assess whether a proffered settlement is better than the status quo.”

The Compact is just one element in the Law of the River that is regarded as something of a constitution when it comes to management of the Colorado River. The current challenge: managing the river during the ongoing drought.

On Dec. 13, Interior Secretary Dirk Kempthorne signed an historic agreement that establishes guidelines for coordinated operation of Lakes Powell and Mead under low-reservoir conditions and for shortage allocations among the Lower Basin states.

Representatives of the seven states and Kempthorne, in turn, signed a document affirming the historic agreement. The signing ceremony occurred at the annual Colorado River Water Users Association meeting and was greeted with a standing ovation.

“This is the most important agreement among the seven basin states since the original Colorado River Compact of 1922,” Kempthorne said. “Perhaps most important for the long term, the Record of Decision activates a legal agreement among the seven basin state that contains a key provision. The states are committing themselves to address future controversies on the Colorado River through consultation and negotiation – as an absolute requirement – before resorting to litigation.

“I am convinced that 50 or 100 years from now, the people of the basin will look back on 2007 in the same way they do on 1922. This is truly historic.”

The adoption of the shortage criteria follow the 2001 adoption of interim guidelines for surplus water conditions in the Lower Basin; and many people point out that by adding agreements such as these to the Law of the River, it has helped ensure the Compact keeps pace with changes in the Colorado River Basin.

“We’ve had lots of changes since the Compact was negotiated and there are different perspectives on the Compact today [on] how it operates and how to manage the river,” said U.S. Bureau of Reclamation (Reclamation) Commissioner Bob Johnson.

But David Getches, dean of the University of Colorado’s Law School, said the Compact does not address the realities of the basin. “To say that we’ve made some major modifications to bring [the Compact] into the 21st century is certainly true,” he said “but in other ways we have held it back – stubbornly – from the realities of even the time in which it was adopted. It has been trotted out as an excuse not to take decisive action.”

The biggest reality: sharing the waters of a river that was over-allocated from the beginning and that is experiencing the seventh dry year in the past eight. System storage on Oct. 1, 1999 was 97 percent. Current storage is about 50 percent.

“The combination of current drought conditions, the increasing development in the Upper Basin and rapidly growing populations in the Lower Basin and Mexico are all combining to increase the pressure on Colorado River water resources,” said Peter Culp, an attorney with Squire, Sanders and Dempsey. “As a result, the shortages in the Lower Basin that were once regarding as a distant possibility are now potentially imminent.

The potential for a major shortfall in supplies because of the severe drought is what led to the current Reclamation/seven-state/environmentalists effort to craft shortage criteria. In November, Reclamation issued its final Environmental Impact Statement (EIS) for the “Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead.” But even then, after months of working to reach agreement on a plan, there were last minute disputes over elements of the plan.

These disputes on the shortage proposal exemplify the difficulty of forging agreements and proposals that all the states will support, much less the other interests in those states. They also illustrate the Colorado River Basin’s unique federal-state political and legal dynamic – especially in the Lower Basin states of Arizona, California and Nevada.

Meanwhile, Mexico is facing its own challenges with water salinity, urban growth, and protecting and restoring environmental values; and actions being undertaken in the United States to conserve Colorado River water that benefits Mexico have generated tension between the two countries. Already the two countries found themselves in a legal conflict over the lining of the All-American Canal. The canal loses an estimated 67,700 acre-feet of water from seepage each year; replacing portions with a concrete-lined channel will conserve water for California’s Colorado River water users. But some of the water from the unlined canal currently seeps into the ground where it is pumped out of the groundwater aquifer in the Mexicali Valley. Another conservation effort on the U.S. side of the border - construction of a reservoir along the All-American Canal to capture unused water – will reduce the amount of water that currently flows across the border into Mexico. This water is not counted in Mexico’s annual Colorado River allocation, but the country has grown to rely on it.

“All of those issues provide ample opportunity for conflict between the two countries over competing needs for water,” Culp said, “but what I think and hope is happening is that the water users on both sides of the border are recognizing that the bi-national issues related to the Colorado River cannot be effectively addressed in a piecemeal fashion.”

Conflict is a familiar component in the Colorado River Basin; even with the Compact in place, the states have pursued legislative and legal actions against one another over the past 85 years. Yet at the international, federal and state levels, most conflicts result in an effort to reach some sort of a compromise to resolve the underlying issue. Continuing this trend – and perhaps even broadening it to include other stakeholders - is very critical as the whole basin, on both sides of the border, confronts the future.

“In assessing the Compact, we are reminded of what we owe to it,” Johnson said. “The framers showed a vision of cooperation, and it is a tribute to them how well that approach has worked. Now, we have got to work to make sure it continues to work.”

This Western Water marks the 85th anniversary of the Colorado River Compact and considers its role in the past and present on key issues such as federal funding for water projects and international issues. Much of the content for this magazine came from the Foundation’s September Colorado River Symposium, The Colorado River Compact at 85 and Changes on the River. The Foundation will publish the full proceedings of the symposium, which was recorded, in Spring 2008.

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Editor’s Desk

California’s Delta has been much in the news, but one of the state’s other major water sources – the Colorado River – is the focus of an historic federal Record of Decision spelling out how to manage the system during drought. The Colorado River Basin is experiencing the seventh dry year in the past eight. System storage is at about 50 percent and the basin is facing a host of challenges related to urban growth, water supply and environmental protection and restoration.

The document signed by Interior Secretary Dirk Kempthorne establishes interim guidelines for coordinated operation strategies for Lake Powell and Lake Mead under low-reservoir conditions and for shortage allocations among the three Lower Basin states. Just as with the interim surplus guidelines signed in 2001, the shortage guidelines will become part of the Law of River, the set of agreements, contracts, treaties, laws and court decisions that apportion the water and regulate the use of Colorado River water.

The original item in this collection of documents is the Colorado River Compact, negotiated and signed in 1922 by the seven basin states and the federal government. In September, we brought together top policymakers and stakeholders from both sides of the border to reflect on current Colorado River issues and the role of the 85-year-old Colorado River Compact in these modern times. It was our sixth biennial Colorado River Symposium at The Bishop’s Lodge in Santa Fe, where the Compact was forged.

As Sue McClurg writes in this issue of Western Water, the future of the Colorado River Basin is the focus of much debate as federal officials on both sides of the U.S.-Mexican border along with the states, Indian tribes, environmentalists and others consider a long list of challenges related to water supply, water demand, Indian water rights, water quality, climate change, instream flows and endangered species.

While there are questions whether the 1922 Compact is resilient enough for these challenges, Reclamation Commissioner Bob Johnson told the group that he is confident the stakeholders can surmount them, adding that “those in the past anticipated challenges and helped us to get in front of them. We owe to those who follow us to do as well by them.”

We at the Foundation are committed to continuing our educational outreach on the vital water issues of today that surround not only the Colorado River and California’s Delta, but other water sources and topics as well. Thank you for your continued support of our many programs, publications and projects. We look forward to exploring water supply, water quality, environmental restoration, climate change, flood management and a long list of other water-related issues in 2008.

– Rita Schmidt Sudman

In the News

Delta Developments

The Sacramento-San Joaquin Delta has long been a physical and political bottleneck in California water: its channels simultaneously serve as conveyance for the movement of water through the state’s two biggest water projects and as critical habitat for a host of species, including the threatened Delta smelt.

Balancing these “primary, co-equal goals” is No. 1 on the list of 12 recommendations for a sustainable Delta developed by the Delta Vision Blue Ribbon Task Force. Appointed by Gov. Arnold Schwarzenegger, task force members released their vision for California’s Delta in mid-December.

Even as the task force released its report, the conflict between the Delta’s dual roles resulted in a federal court ruling limiting the amount of water that can be exported from the Delta in an effort to protect the Delta smelt. In his Dec. 14 ruling, formalizing the details of a decision he announced in August, U.S. District Court Judge Oliver Wanger said water export restrictions are necessary “based on the previous findings of the imminent peril to the survival of the Delta smelt and adverse effects on its critical habitat.”

Water users said limits on the State Water Project and federal Central Valley Project could reduce supplies between 20 and 30 percent. Pumping restrictions were expected to begin shortly after Christmas and extend until mid-June. State and federal agencies also are required to conduct more monitoring for young smelt and Wanger ordered the Fish and Wildlife Service to complete a new biological opinion for the smelt by Sept. 15, 2008.

State officials said the court ruling underscores their view that the Delta is broken and requires a major, comprehensive “fix.”

“The Delta is in crisis and each day brings us closer to a major disaster, be it from flooding, from the decline of important fish species, or from court-ordered reductions in the amount of water that can be pumped for the state’s water supply,” said Phil Isenberg, chair of the Delta Vision Blue Ribbon Task Force.

In its plan, the Task Force emphasized that no single action will address the Delta’s problems; offering 12 integrated and linked recommendations, including consideration of water conveyance - one of California’s most critical political water issues. “New facilities for conveyance and storage, and better linkage between the two, are needed to better manage California’s water resources for both the estuary and exports,” the Task Force said.

Recent discussions whether to build a canal around the Delta have focused on “dual conveyance” – moving some water directly from the Sacramento River to the pumps while allowing some to continue to flow through the Delta channels. The Task Force recommended development of a detailed assessment of the dual conveyance design features, cost and performance of alternative conveyance options by June 2008. The Task Force is to develop a strategic plan to implement its recommendations by Dec. 31, 2008.

– Sue McClurg