The Colorado River Compact celebrates its 100th anniversary this year as drought concerns continue.
The compact divides the Colorado River basin in two with the water being apportioned out to both sections. The Upper Basin includes Colorado, New Mexico, Utah and Wyoming and the Lower Basin includes Arizona, California and Nevada.
In August, the U.S. Department of the Interior announced urgent action is needed to protect the sustainability of the Colorado River system.
“The worsening drought crisis impacting the Colorado River Basin is driven by the effects of climate change, including extreme heat and low precipitation,” said DOI Deputy Secretary Tommy Beaudreau in a press release. “In turn, severe drought conditions exacerbate wildfire risk and ecosystems disruption, increasing the stress on communities and our landscapes.”
The DOI concluded the downstream releases for Glen Canyon and Hoover Dam will be down again in 2023 due to a reduction in reservoir levels. That led to a call for basin-wide conservation and discussion between all the groups involved. Last month, the Associated Press reported negotiations began between the seven states to determine where to cut water consumption.
As these issues linger, concerns also grow with the compact. Some Colorado legal experts on the matter weighed in on the future of it and what can be done.
James Eklund, an attorney at Sherman & Howard, hesitated to call the situation a drought because that indicates it could be evened out over time, but really it’s aridification, or gradual and consistent reduction of water in an area, meaning it’s a “new normal.”
Eklund said states should focus on conserving water and it shouldn’t be all focused on agricultural producers reducing water. He added what Colorado can do is conserve water and bank it in Lake Powell and Lake Mead — the Lower Basin has already been doing that in Lake Mead.
“If we drop another 30 or 40 feet in Lake Powell and about that amount in Lake Mead, we’re not able to produce any electricity out of those facilities,” Eklund said, which impacts many things like rate increases and blackouts.
After Colorado signed the Drought Contingency Plan, it would have led to banking water in Lake Powell.
“I thought we would be off to the races doing just that,” Eklund said. “We haven’t done any of it because we’re still playing the blame game in the Upper Basin, where we just blame the Lower Basin for using too much water, which they have done … but we also like to eat salad in February in the Upper Basin.”
The recently approved Inflation Reduction Act has $4 billion to conserve water in the Colorado River basin and other impacted areas. But will it really work?
“The only reason it [conservation efforts] hasn’t happened is because it’s an election year and nobody wants to be seen as doing the thing that creates a winner [or] a loser in that environment,” Eklund said. “So the state of Colorado hasn’t moved, New Mexico hasn’t moved, Wyoming hasn’t moved and Utah hasn’t moved because they are all sitting around — really they’re paralyzed — by the election because at the end of the day this whole thing means that there’s going to be payment to agriculture for conserved water.”
The bipartisan infrastructure bill also directs $8.3 billion to help with water issues in the West, but it’s not being used because of leadership issues and politics, according to Eklund
Tom Romero, an associate professor of law at the University of Denver Sturm College of Law said the Law of the River always gets more complicated as many policies have been built around the compact.
With the changing climate, does that mean the compact can be revised?
“I think it’s sort of unclear in the compact, the role and the scope of the federal government to change the compact,” Romero said. “I think that’s an open question that’s left in the compact and so I think what you are seeing from the federal government with some of its recent pronouncements … I think what’s not clear is its ability to really enforce anything that it might pronounce over the compact.”
Romero continued, saying there’s always been an assumption we could engineer our way out of problems with water, but now we are seeing the limitations of that.
“There’s been a lot of ideas even here within the state to pipe water from one part of the state to Denver’s growing urban areas,” Romero said. “In almost every case, water courts have struck those down or people that have embarked on those projects have realized there’s no way that they’d get past some of the legal barriers, much less the political barriers.”
Native American Water Rights
Troy Eid, principal shareholder at Greenberg Traurig who’s an expert on tribal law said when the compact was approved, it didn’t recognize tribes as a party to the compact.
“So the tribes were supposed to in 1922 look to the federal government to represent them in all matters related to the Colorado River’s development and that was 100 years ago and that process has been a failure from the tribal standpoint in a massive way,” Eid said.
Eid explained that within the region of the compact, there are 30 tribes and 12 still don’t have quantifiable water rights.
“Of the remaining tribes to the compact [18 tribes] … of those, there is a quantification of a total of 3.4 million acre-feet, so that’s about a quarter of the river’s average total water supply,” Eid said. He surmised many of those tribes only have paper rights meaning the federal government didn’t do anything to enable the tribes to divert the water and develop it for usage.
The tribes are also sending a lot of their water downstream and they are not being compensated and their rights aren’t being respected Eid said. He added both the Ute Mountain Ute and Southern Ute Indian tribes, which both have reservations within Colorado, have Congressional quantifiable water rights with the Southern Ute Indian Tribe having infrastructure being able to irrigate and use water out of the basin. The Ute Mountain Ute Tribe has partial infrastructure having no outtake system Eid continued, which means when the water is pumped into that reservoir there’s no way to get it out.
Overall, many issues still remain for tribes.
“The tribes are backing into an environmental scarcity and it’s not their fault,” Eid said. “That’s the reality. This is a very emotionally super-charged issue … I think we have an obligation to recognize the tribe’s interest and to make it real and that they shouldn’t have to wait another 100 years.”