Introduction

Legal and physical ties link the seven states, two countries and many stakeholder groups that share the Colorado River, known as “the lifeline of the Southwest.” Within this vast 250,000 square-mile basin, change has become the watchword of the day as the Basin grows more urbanized. The increasing demands upon a river already over-allocated, suffering from four years of severe drought, have increased interest in finding new ways to manage the river and share the resource.

In a river basin long dominated by tradition and history, change can come slowly – and it often is accompanied by conflict and controversy among the competing stakeholder groups: cities, farmers, environmental groups, American Indian tribes, the states and the federal government. Despite disputes among Colorado River stakeholders, there are examples of programs in which the competing interests strive to find common solutions, such as the effort to control the river’s salinity.

“These various players really are in consort and in conflict depending on what the day is and the issue is. But they all have in common a stake in the resource,” said attorney Gary Weatherford. “Even when at odds, they share membership in a community, a community that encloses and modulates competing values. I like to call this community a ‘hydrocommons.’”

The California contingent of this hydrocommons recently signed off on a plan that further quantified certain users’ share of the Colorado River, and sets the stage for agriculture-to-urban water transfers, including the Imperial Valley to San Diego deal. It is a major milestone and the Quantification Settlement Agreement (QSA) may very well become the latest addition to that collection of contracts and court decisions known as the Law of the River.

It is through new agreements such as the QSA, its accompanying Colorado River Interim Surplus Guidelines and interstate banking arrangements, that the 82-year-old Law of the River has been stretched to meet the changing conditions within the Colorado River Basin . Whether the Colorado River’s competing interests can continue to find flexibility within the Law of the River to address future issues is a major question.

“Let’s look to the future and the potential changes or conditions – the Law of the River has to be dynamic to accommodate change,” said Dennis Underwood, vice president of Colorado River issues for the Metropolitan Water District of Southern California (MWD). “We’re looking at balancing added values and accommodating additional values by making more effective use of water and improved resource and river management.”

Managing the river’s water may never be more critical. The Colorado River Basin has suffered through four years of drought that has caused the system’s two largest reservoirs – Lake Powell and Lake Mead – to drop to 45 percent and 60 percent of capacity, respectively. Although the January forecast for snow and runoff are at 94 percent and 84 percent of average, respectively, the water conditions remain uncertain and the drought could extend into a fifth year.

“If anything, the ongoing drought has shed light on the importance of collaboration and collective decision making among diverse interests,” said Darryl Beckmannn, deputy regional director of the U.S. Bureau of Reclamation’s (Reclamation) Upper Colorado Region. “In these tough times, we must be willing to work together to reach consensus on the best strategies for stretching our limited water supplies in order to satisfy the demands of growing populations, protect environmental needs and strengthen regional, tribal and local economies.”

New issues may require new ideas and new approaches.

“I think we need to look at the entire system, the plumbing system, of the Colorado River from an integrated point of view and look at it as an organism – one large organism of interdependent parts that all function as one unit, as opposed to the piecemeal way it’s been dealt with for so many decades,” said Andre Potochnik, a river guide who represents recreation interests in the Adaptive Management Program for the operation of Glen Canyon Dam.

Others have suggested perhaps creating a Lower Basin Commission, similar to that found in the Colorado’s Upper Basin , increasing the focus on demand management and facilitating more water transfers.

This issue of Western Water provides the latest information on some of the philosophical, political and practical ideas being discussed on the river. Some of these issues were discussed at the Water Education Foundation’s Colorado River Symposium, “The Ties that Bind: Policy and the Evolving Law of the Colorado River,” held last fall at The Bishop’s Lodge in Santa Fe, New Mexico – site of negotiations on the 1922 Colorado River Compact.

NOTE: A complete copy of this 16-page magazine is available from the Foundation for $3. Visit our Products Page and add the March/April 2004 issue of Western Water to your shopping cart.

Editor’s Desk

During my career at the Foundation I have truly come to believe that our water tours are one of the best programs we offer. Nothing compares to the experience of seeing firsthand the rivers, lakes, water facilities, wildlife habitat, farms and cities that make up this ongoing conversation we have about our most important resource – water. It is always rewarding to see how visiting these sites helps people better understand the complexity of the many challenging water issues we face.

We recently completed a special, two-day tour of the Salton Sea for members of the new California Resources Agency Salton Sea Advisory Committee; a state committee formed with passage of several pieces of legislation last year that ultimately helped lead to the signing of California ’s Quantification Settlement Agreement. (See page 7 for more information about the legislation).

This tour was a bit different for us because while water was an important item of discussion, the real focus was on the birds of the Salton Sea and their habitats. Education/Tour Director Judy Maben, a birder herself, made sure the tour ran like clockwork - just like she does with all of our water tours – and arranged for the group to visit sites such as the Wister Waterfowl Management Area, the Alamo River Delta and the Sonny Bono National Wildlife Refuge. Along as attendees and speakers were high-ranking officials such as Resources Secretary Mike Chrisman, Rep. Mary Bono, R-Palm Springs, and State Sen. Denise Ducheny, D-Moreno.

The Salton Sea also was the focus of a special one-day briefing we held in January. Co-sponsored by the California Department of Water Resources, the briefing focused on such topics as the definition of restoration, why the Salton Sea is important, the status of the Sea’s fish and wildlife resources and a legislative perspective on the Sea’s restoration. What’s interesting in all of this is, as Sue McClurg and Glenn Totten write in this Western Water, is how the “Salton Sea morphed from being the ‘hot potato’ no one wanted to be left holding to the foundation of the” QSA.

The QSA and the new state focus and state financial resources slated for Salton Sea restoration may help resolve one of the thorniest issues confronting Colorado River stakeholders - California ’s reliance on surplus flows. But as Sue and Glenn note in this article, the states and other interests that share the Colorado River face a long list of other challenges.

– Rita Schmidt Sudman

In the News

New State Board Fees Draw Ire and Lawsuits from California Water Users

Severe budget constraints have led the Legislature to look for new revenues to cover the cost of governmental operations. In the case of the State Water Resources Control Board (State Board), legislation was enacted in 2003 requiring it to develop emergency regulations assessing fees on holders of water rights within the state to replace the General Funds, which previously supported the program. The State Board notified affected water rights holders and held hearings on the draft regulations.

On Jan. 1, 2004, nearly 13,000 water rights holders received their first bills from the State Board of Equalization. In response, the Northern California Water Association (NCWA) and the Central Valley Project Water Association (CVPWA) have filed suit to block implementation of the fees, questioning the constitutionality and overall validity of the enabling legislation. The California Farm Bureau Federation, meanwhile, has requested that the Board reconsider the fees, although an unsatisfactory response is expected to result in additional legal action against the state.

Signed in October by then-Gov. Gray Davis, SB 1049 includes a variety of new fees and price increases calculated to replace General Fund revenues with user fees for many of the natural resource regulatory programs. The feature of the bill that affects water rights holders requires “each person or entity who holds a permit or license to appropriate water, and each lessor of leased water to pay an annual fee according to a fee schedule established by the Board.” The purpose of the fees, estimated to bring in $7.2 million annually, is to replace General Funding of the administration by the Board’s water rights division of duties such as investigating water rights complaints, inspecting diversion facilities and processing requests for permits and amendments, as well as performing other services related to water rights.

NCWA and CVPWA allege that the fee is a tax on the property rights of water rights holders, which, under California’s Proposition 13, would require a two-thirds voting majority in the Legislature. Additionally, the plaintiffs are challenging the legality of imposing charges on contactors from the federal CVP, an entity that claims to have “sovereign immunity” from such assessments.

The overall feeling driving the suit is that a heavy tax burden is already placed on land and resource users and that no real accountability exists to ensure that the new fees will reflect the cost of the services provided by the state board. NCWA Chairwoman Mary Wells asserted, “Water users wouldn’t mind paying fees for water rights services, but the services received do not seem to warrant such a huge cost. There is a need for some type of relationship between the two.”

The state’s budget crisis has meanwhile left little in the General Fund for a water rights program. Directed to finance itself, the division looked for solutions, which included “reducing the program by 30 percent to cut costs, and meeting with stakeholders over a six-month period trying to find a fair and equitable way to fund water rights,” according to State Board Executive Director Celeste Cantú. Cantú added, “We are confident we can ultimately find a funding mechanism which will satisfy everyone involved.” .

– John Speka, WEF Intern