A legal showdown is looming on the Colorado River, where the Colorado River Compact, the century-old framework governing the West’s water supply, is beginning to unravel. As drought deepens and the end-of-year deadline for compromise approaches, states are clashing over who must cut back — and who gets to decide.
Signed in 1922, the Compact divides the river between the Upper Basin states (Colorado, Utah, Wyoming and New Mexico) and the Lower Basin states (California, Arizona and Nevada), based on an assumed annual flow that modern hydrology can’t maintain due to climate change and resulting drought.
To shore up the Compact, basin states and the federal government have layered on additional rules, including the 2007 Interim Guidelines and the 2019 Drought Contingency Plan. These agreements require coordinated operations between Lake Powell and Lake Mead and establish shortage-sharing mechanisms, particularly in the Lower Basin. But they were always temporary. With key provisions set to expire in 2026, states, tribes and federal regulators are scrambling to renegotiate the rules.
To break down the legal landscape — and the possibility of Supreme Court intervention — Law Week Colorado spoke with James Eklund, a partner at Sherman & Howard and former director of the Colorado Water Conservation Board.
“The Lower Basin asserts that because the river is declining, it should have priority under the Law of the River,” Eklund said. “That ignores the reality that their uses largely exceed what was originally contemplated.”
The dispute traces back to a legal tension embedded into the Compact. Though it allocates water between basins, it does not clearly account for long-term hydrologic decline.
Legally, this presents competing claims of equity and obligation. Federal reservoir management authority, alongside the overarching responsibility to prevent system collapse, adds complexity even as reservoir levels approach critically low thresholds this season.
The Upper Basin, Eklund argued, is operating under a supply-driven reality. “We are already bearing the burden,” he said. “Reservoir levels fluctuate naturally, and we have not historically overused the river.” The Lower Basin relies heavily on stored water and federally managed releases.
Since the Compact does not explicitly authorize one basin to offset overuse in another, forcing additional curtailments in the Upper Basin to stabilize the system would raise serious legal questions.
At the same time, the threat of federal intervention looms.
“The secretary of interior wears two very different hats depending on which side of the river you’re on,” Eklund said. In the Lower Basin, the federal government acts as a water master under the Boulder Canyon Project Act of 1928, exercising direct control over reservoir operations.
In contrast, “in the Upper Basin, water administration is governed predominantly by state law and interstate compacts,” Eklund said. “If the federal government attempts to unilaterally impose mandatory cutbacks on Colorado or its neighbors, it will immediately trigger a monumental separation-of-powers and federalism conflict.”
He continued, “The Bureau of Reclamation would find itself on highly unstable legal ground, instantly inviting emergency injunctions and litigation.”
Supreme Court as Arbiter
If negotiations break down as the 2026 expiration date arrives, the destination is clear: the U.S. Supreme Court, which holds original jurisdiction over disputes between sovereign states.
Eklund warned that rolling the dice in Washington, D.C., carries risks for the entire West.
“Litigation before the Supreme Court under original jurisdiction is notoriously slow, incredibly expensive and entirely unpredictable,” he said. “When you hand the future of the Colorado River over to nine justices, most of whom did not grow up practicing Western water law or understanding the prior appropriation doctrine, you are introducing an unacceptable level of risk to our municipal, agricultural and environmental sectors.”
Eklund added that a judicial decree is a “blunt instrument” incapable of managing a dynamic environmental crisis.
“The Supreme Court can interpret a contract, but it cannot make it rain, and it cannot engineer infrastructure,” Eklund said. “A litigated outcome almost guarantees a lose-lose scenario. It breeds years of economic uncertainty for water providers, stalls critical infrastructure development and destroys the collaborative relationships required to actually manage the river on a day-to-day basis.”
Collaborative Diplomacy Over Courtroom Confrontation
A negotiator throughout his career, from drafting Colorado’s Water Plan to hammering out the details of the Drought Contingency Plan, Eklund believes the current impasse requires multi-dimensional diplomacy.
“The path forward isn’t found in a courtroom,” Eklund said. “It’s found in smart infrastructure, public-private partnerships, flexible market-based conservation strategies and fully integrating the senior water rights of sovereign tribal nations into a collaborative framework.”
For Colorado practitioners navigating this period of uncertainty, Eklund said the stakes extend far beyond the water bar: “We share a common destiny on this river, and collaboration remains our best and most durable legal tool.”