What happened on the Colorado River?
Negotiating around legal uncertainties as climate change takes its toll.
In June 2023, the federal government issued its notice of intent starting the process of negotiating post-2026 operating guidelines to deal with whose water gets cut off when there are low reservoir conditions and shortages on the Colorado River.
Shortly afterward, the U.S. Bureau of Reclamation held a scoping period and received hundreds of comments from tribal nations, the seven U.S. states in the Colorado River Basin, agencies, NGOs and the general public. With the news that the seven states at the heart of the negotiations missed a key deadline yesterday, I have been revisiting a summary report of those comments. I recommend checking them out.
They say a lot about the hope many had for the post-2026 operating guidelines — that this set of negotiations would be more inclusive, proactive and collaborative than the 2007 Interim Guidelines that are scheduled to lapse a year(ish) from now. The public comments also reflect the conflicting and overlapping interests that inform the river’s management. While these varied interests can, at times, promote collaboration, they can also make agreements difficult. This is true in watersheds across the U.S. West.
The major news, as the L.A. Times’ Ian James reports, is the seven-state Colorado River negotiators failed to meet a benchmark yesterday to present a consensus plan over how to share cuts on a river that is shrinking from climate change:
Negotiators for seven Western states said they are making progress in ongoing talks over how to share the diminishing waters of the Colorado River, but they provided no specifics. A deadline set by the Trump administration came and went Tuesday without any region-wide agreement on water cutbacks.
…
Negotiators for the states and the federal Interior Department said in a joint statement that they “recognize the serious and ongoing challenges facing the Colorado River,” and that “prolonged drought and low reservoir conditions have placed extraordinary pressure on this critical water resource.” “While more work needs to be done, collective progress has been made that warrants continued efforts to define and approve details for a finalized agreement,” they said.
According to the story, the negotiators are still talking, and that’s a good thing.
But why have the negotiations been so hard?
The path to a consensus was already fraying when the scoping comments came in. In 2022, Reclamation Commissioner Camille Touton issued an ultimatum to the states, asking all sectors and users to cut 2-4 million acre-feet in use to stabilize Lakes Mead and Powell, the two largest reservoirs on the Colorado River system.
The next year, the Lower Basin states of Arizona, California and Nevada reached a historic deal to save 3 million acre-feet through 2026, an effort aided by considerable funding from the Inflation Reduction Act. [It’s worth noting here that California’s water use is the lowest since 1949]. A good water year in 2022-2023 provided some more breathing room, but by 2024, there was stark disagreement between the Upper Basin and Lower Basin, with two alternatives for a post-2026 operating regime.
Colorado River managers have talked about the post-2026 guidelines for a decade. And from the perspective of the public, they seem only a little closer than they were years ago on fundamental issues. Much of the negotiations have taken place outside of the public’s view, and its hard to assess them, in part, because there is little record.
Over the summer, there was a glimmer of hope when news broke of the seven states modeling management scenarios based on actual supply, moving to a system more responsive and closely aligned with actual reservoir inflows and streamflow. The idea would be to link shortage declarations to the natural flows at the Lee’s Ferry gauge downstream of the Grand Canyon versus on elevation levels at Lake Mead and Lake Powell, which guides the current formula for releases and shortage declarations/cuts.
But despite the excitement around the plan, the reality was that familiar, foundational governance questions remained about how water is allocated on the Colorado River, in accordance with a complex, overlapping, and layered legal framework that, in sum, dedicates more rights to use water on paper than there is wet water to go around. And these fundamental, controversial questions have often been deferred in past deals.
As California negotiator J.B. Hamby told High Country News:
“Previous negotiations did not address core issues. They either delayed them or worked around them, making do based on the circumstances of the time.”
The less water there is to go around, the harder these issues get. And there is less water to go around, with 21st Century flows far lower than those of the proceeding century, with warmer temperatures contributing to the decline. The more acute the hydrologic situation is, the more it has stressed out an uncertain legal regime.
Uncertain how?
The negotiations have revealed what has been known and well-documented by many scholars. The 1922 Colorado River Compact — central to subsequent laws that govern the river — can be vague in its implementation, operations, and accounting system.
Does the Upper Basin have a non-depletion or delivery obligation to the Lower Basin? How would a Compact Call work? How would the states curtail? How do you account for where all of the water goes. Whose allocations does it count against? The list goes on and on; Shannon Mullane from the Colorado Sun has an excellent piece on it.
In practice, this vagueness can provide a lot of room for negotiation. And many saw (or at least once did) the benefits of negotiating, versus kicking the issue to the courts. Better to come to a consensus than gamble with a judicial process that could open the door to all sorts of unpredictable consequences. Or as John Entsminger, Nevada’s river negotiator, put it in 2023: “Anyone telling you we should pursue the litigation path, all they’re saying is they’re willing to roll the dice on your future, because they’re going to change out seasoned water professionals for nine people with black robes.”
But it’s hard to come to consensus when the scale of the cuts are large. When the cuts are actually staring you down, perhaps litigation does not look as bad as it once did?
In practice, the Law of the River has operated similarly to how Prior Appropriation has in many situations. The rules seem ironclad on paper, but in practice, they leave open many real social, political, and legal questions about what feasible curtailment were to look like. To reduce collective (and specific) risks, water users have come to prefer negotiating around the most controversial issues as an alternative to litigation.
Priority’s modern significance lies in the threat of enforcement rather than the actual enforcement because it encourages water users to cooperate either to reduce the risk of enforcement to as close to zero as possible or to share more equitably the burdens of shortages. This said, cooperation and ad hoc sharing do not come easily to water users. Alternative allocation systems usually emerge only when a significant group of water users thinks that cooperation will produce a superior result to the likely legal resolution allocation of the resource.
Sound familiar? If the states seem to be heading toward a future of litigation, I hope (and part of me doubts) it would end there. My reasoning is what we’ve seen over the last two decades: The reality is the impacts of climate change on hydrology are forcing change faster than the century-old legal framework for the river can respond to them.
Litigation could take years, if not decades, to resolve.
The effects of aridification are unfolding at a faster rate.
The recent past is prologue: Because of climate change, the states have had to swing from crisis to crisis over the past decade, resulting in patchwork agreements to make it to 2026, especially in the Lower Basin. The Drought Contingency Plan (2019). 500+ Plan (2021). Lower Basin Cuts (2023). Drought Response Operations Agreement (2023). The very fact that these stopgap measures have been necessary seems, in and of itself, an indication of the need to develop a holistic long-term post-2026 operations plan.
There is still time for that to happen, but the window is narrowing.
That’s it for today. Thanks, as always, for reading. If you have any colleagues or friends who might be interested, you can support this newsletter by passing it along! My work is reader-supported, and if you are able to subscribe, please consider one of the options here.💧