Experts split on need to retool Colorado River compact

Management of the depleted Colorado River needs an overhaul, speakers at a University of Arizona-sponsored conference agreed.

But at a conference called last week to observe the 100th anniversary of the interstate compact that divided river water rights among Western states, the speakers disagreed over whether the Colorado River Compact itself needs a major rework.

Representatives of all seven Colorado River Basin states met in Santa Fe last month to approve the compact. It awarded 7.5 million acre-feet of river water rights to both the Lower Basin states of Arizona, California and Nevada and the Upper Basin states of of Colorado, New Mexico, Utah and Wyoming.

In 1944, the U.S. awarded another 1.5 million acre-feet of river water rights to Mexico. The total allocated, then, is 16.5 million. That will serve Central Arizona Project water to Tucson, Phoenix and other Arizona cities for 16 years at the rate the project delivers water in 2022.

River has been over-allocated

But those water right awards have proven wildly unrealistic, particularly in the face of the drought and climate change patterns that have dominated this region since 2000. Average annual river water supplies since then have barely topped 12 million acre-feet, with recent years seeing even lower flows in the 10 million range.

Even before then, however, the river was overallocated, delivering about 15 million acre feet a year during the 20th century out of the 16.5 million acre feet worth of “paper water” awarded by the compact and later agreements.

“The compact negotiators negotiated on a river that no longer exists,” said Eric Kuhn, an author and retired Colorado water district general manager who told attendees at last week’s conference that he “absolutely agrees” it needs fixing.

Key articles in the 1922 compact imposed a requirement on Upper Basin states to deliver 75 million acre-feet to the Lower Basin every decade — “we put stationary flow requirements on a declining river,” said Kuhn, formerly of the Colorado River Water Conservation District in Glenwood Springs.

“That puts almost all of the risk of climate change on the Upper Basin,” Kuhn said. “There’s a good reason for that. Ninety percent of the flow of the river at the mouth is derived from upper basin.”

But, “The Upper Basin is squeezed. It has a declining resource and a fixed commitment. Legally and politically, that’s not going to work,” he said.

‘It works. It’s painful.’

The current system of river water allocations remains functional, although it leads to outcomes that are “politically very troublesome,” said Arizona State University water researcher Kathryn Sorensen, disagreeing with that assessment.

The changes Sorensen supported in water management were sweeping but less dramatic, such as scrapping the “use it or lose it” legal system that requires water users to take every year all the water they have rights to or risk losing them to other users. She also advocated a greater push for system-wide conservation of water among all users, despite the economic and social pain that could result from such action.

Saying all options need to be on the table, Sorensen noted the current allocations lead to outcomes in which “you know what you have the right to get. You know whose water you need to buy out if you’re lower in priority for it.

“It works. It’s painful. If you are a lower priority water user, you feel the value of your water use is high enough that you can go through the environmental, economic and social pain to acquire the water right to meet your needs,” said Sorensen, a senior research fellow for ASU’s Kyl Center for Water Policy.

This system leads to “crazy and difficult outcomes, but I don’t know of an apportionment, a government structure that wouldn’t lead to those outcomes and pain.”

Much of the current system is based on a framework of prior appropriations in which the first parties to gain water rights have higher priority to available water than those coming later.

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“What current system of prior appropriation does, it provides absolute certainty,” Sorensen said. “It forces those who have lower priority rights to go seek out arrangements” to get rights from someone else.

Litigation a ‘surrender to failure’

But Mariana Rivera-Torres of the Environmental Defense Fund — who spoke at a later panel of that conference — told panelists that the river’s current management system is broken.

“We’re tying to address this with workarounds and dabbling on the edges, which is not moving fast enough,” said Rivera-Torres, the defense fund’s manager of climate resilience and water systems.

The question is “what will it take us to make the changes that we know we need that don’t seem politically viable right now?” Rivera-Torres said. “But in my mind the future chaos is a lot less politically desirable” without a system overhaul.

This debate has confounded river water users and experts for many years now as the Colorado’s supplies have dwindled.

The most common argument against redoing the compact is that such an effort would get tied up in endless litigation, blocking any progress toward reforming an increasingly fractured system of river water rights.

Kuhn acknowledged that, saying, “I think the worst alternative is litigation; I would suggest that people would try to get together and make changes through a dispute resolution process through the contact before you go to the (U.S.) Supreme Court.

“In 1975, Kansas sued Arkansas over one river. That was finally resolved in 2009. that’s 34 years on a single river. Litigation is to me surrender to failure.”

Room to negotiate a solution

In response to a question later, Kuhh said he thinks governors of the seven states and the U.S. Interior Secretary must agree on the need for a high-level discussion about how to deal with the compact, without litigation. That will give state water managers room to negotiate a solution, he said.

“They are constrained by their politics, they really need to be able to have some maneuvering room,” said Kuhn, adding he’s cautiously optimistic water managers will decide the river’s problems need a regional solution.

Another panelist, UA climate scientist, Kathy Jacobs, said she thinks modifications to the compact are needed because having a stationary system of river management during a rapidly changing period of weather and climate isn’t a recipe for good outcomes.

But “it’s a bit of a red herring to focus on simply” whether the compact should be “trashed” or changed only incrementally, she said. The critical question is whether the basic framework needs to be amended or can we continue to make modifications around the edges, she said.

“People see it as a black-and-white question and it’s not ,” added Jacobs, director of UA’s Center for Climate Adaptation Science and Solutions.

“What is it going to take to get to a place of where we in a better atmosphere for this conversation? The answer is leadership,” Jacobs said. “We need to have people brave enough to have a conversation outside the political box. I don’t see where that safe place is right now. Everyone is posturing for legal advantage for that reason.”