Distance Remains on Colorado River Basin Water Sharing Deal

An elevated view of the rock formations of Zion National Park over the Virgin River running through the park.
The Virgin River, a tributary of the Colorado River, runs through Zion National Park in Utah. / Photo by Michael Rummel for Law Week Colorado.

A deadline is looming over states that get water from the Colorado River Basin as negotiators from seven states work to allocate a dwindling water supply. The crucial waterway, supplying 80% of Colorado’s water, has seen its flows decline by 20% over the last century, with scientists predicting the flows could decrease by as much as 31% by 2050. 

For the nearly 40 million people spread out across those seven states, two countries and 29 federally recognized tribes that rely on that water, a long-term solution will be crucial in confronting the uncertain future of the river. 

A short-term plan, in effect until 2026, is projected to conserve at least 3 million acre-feet of water.

Representatives from the seven states recently met at the 44th annual Colorado Law Conference on Natural Resources at the University of Colorado School of Law to discuss the problem and the proposals they’ve put forward to allocate the river’s water. 

Two Competing Proposals 

The impasse on an agreement is centered on where the cuts on water usage should come from and what reservoirs should be used to determine the degree of the cuts. The upper basin states, Wyoming, Colorado, New Mexico and Utah, want water cuts to come based on the water level in Lake Mead and Lake Powell. In contrast, the lower basin states, Nevada, Arizona and California, want cuts to be calculated based on the levels of all the reservoirs in the basin. 

“We proposed the seven-reservoir trigger, and the only thing you look at the total system contents of the seven reservoirs for is when the lower basin shortages are triggered,” said John Entsminger, general manager of the Southern Nevada Water Authority. 

Entsminger said the seven-reservoir trigger would also have the benefit of taking state manipulation of water levels off the table. 

“You want plenty of water in Blue Mesa on Labor Day? Then the seven-reservoir solution is better than the two-reservoir solution,” said Entsminger. “So as just an agnostic, if you were landing from Mars, looking at, how do you decide how much less the lower basin uses, we thought the seven-reservoir solution was a sound proxy for how to do that.” 

Estevan López, New Mexico’s Upper Colorado River Compact commissioner and Governor’s representative on Colorado River matters, said the upper basin proposal was a pivot to a supply-based alternative. 

“You’ve heard it said here by virtually everybody here, I think, that we’ve got to live within our means,” said López. “That’s the basis of our proposal.” 

López noted the upper basin proposal was based on two curves. The first being the Powell release curve, and the second being the curve that guides reductions in water use. The plan would also institute reductions at higher water levels. 

“The reductions start earlier with the intent of building storage and conserving storage as much as possible,” said López. “Our approach looks at the content of two reservoirs, whereas the lower basin looks at the content of seven reservoirs … We think that is an adequate indicator of the health of the system. And there’s no appreciable difference in it. And looking at all seven raises some other issues that concern us.”

The stark difference in the plans comes in who takes the cuts, López added, as the upper basin plan calls for those reductions to be taken by the lower basin states. 

“The reason is this: the lower basin [and the upper basin], we have really different starting points,” said López. “The lower basin, today, because of the structural deficit and other things, are using more than the compact apportionment. The upper basin is using considerably less than our compact apportionment.”

But representatives from both sides agreed reductions were necessary to bring water usage under the structural deficit. 

Entsminger noted the structural deficit of Colorado River Water was at 1.3 million acres, which the lower basin proposal would cover, with 200,000 acre-feet built in as a reserve for climate change and a drier river. 

“If the 1.5 [million acre-feet cut] is successfully implemented, Arizona will take 760,000 acre-feet less, California will take 440,000 acre-feet less, Nevada will take 50,000 acre-feet less. All seven states will be using less than their compact entitlement,” said Entsminger. “So this idea that the upper basin has been asked to sacrifice so that the lower basin can use more than our compact entitlements is belied by the math that is within the lower basin proposal.” 

“I think the lower basin’s recognition of the structural deficit, their commitment to reduce uses by 1.5 [million acre-feet] in most circumstances, that is huge, absolutely huge,” said López. “And that’s a common element of both proposals. We feel it’s imperative, whether it’s explicit in the alternative or implicit in the rationale behind it, it’s imperative that there be recognition of the supply or the hydrologic shortages that the upper basin users face every single year. Even in years of a lower basin surplus.“

Keeping the Power in States’ Hands 

As it stands, the states themselves have the power to determine the water-sharing arrangement of the future. But, if a final agreement can’t be reached, bodies at the federal level, whether that be Congress or the courts, would be forced to step in and create an arrangement for the states. 

While the state negotiators were all in agreement that they didn’t want that to occur, none were willing to rule out the use of the courts to resolve the issue if the deadlock couldn’t be broken. 

“If this negotiated process fails, and the federal government tries to unilaterally impose on Nevada something we believe to be unreasonable, then we reserve our options to defend ourselves,” said Entsminger. 

“At the very least we’re going to make a recommendation … But we have to preserve that lever, that is what will make opportunities for us to adjust course,” said López.

But the threat of a settlement being forced upon the states also has a positive impact on the negotiations, according to the representatives. 

Becky Mitchell, Colorado’s Colorado River commissioner, said the threat of litigation and the courts deciding the fate of the Colorado River was part of the reason the negotiators were able to do their work. 

“I think it’s important to remember that is definitely the worst-case scenario,” said Mitchell. “We have things that we cannot accept. Every single state has that. Every single state has a responsibility to their water users within their state. And so yes that is out there, but that is the worst-case scenario, and it’s why we’re able to be here.” 

The specter of past litigation weighed on JB Hamby, chairman of the Colorado River Board of California and California’s Colorado River commissioner. He brought up the examples of Arizona v. California, which he noted took five decades to resolve, as well as California actively asking Congress to go to the Supreme Court to adjudicate water issues in the past. 

“It turned out very differently than what California initially expected,” said Hamby. “That would be a cautionary tale for anyone who thinks litigation is a good option today. Get ready to be totally surprised by whatever the outcome might be, because it’s not as certain as what some users might think it is. So that is the absolute last and worst option on the table.”

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