Who cuts in the Colorado River Basin
Priority cuts, proportional cuts, negotiated cuts, and mounting risk.
Good morning, and welcome to Invisible Waters. I meant to write a short post on how cuts could be divided on the Colorado River, and it turned into a longer post. But hopefully its helpful and at least links to some valuable resources. Will be back with more soon.
For all of its significance, Colorado River governance operates within a high degree of legal complexity. Many fundamental questions about what happens when there is not enough water to go around have never been fully litigated and completely settled.
But that legal framework — what is known as the “Law of the River” — is set against much clearer hydrologic realities. There is less water to go around, on average, than was assumed when rights were allocated about a century ago. Climate change, over two decades, has only worsened the structural “wet water” vs. “paper water” divide.
Cuts are coming. As has been the case for years, it is only a matter of how they are structured and distributed, and whether these cuts are negotiated or imposed. The first consideration (the structure and distribution of cuts) is connected to the latter.
This week, negotiators for the seven states in the Colorado River Basin are reportedly being sequestered in Salt Lake City to see if they can reach a negotiated, consensus-based agreement to manage shortages on the river after missing a deadline last year. They now have until Feb. 14, or else the federal government has threatened to step in.1
On Friday, the federal government offered a glimpse into what that may look like with the release of a draft 1,600-page report, modeling a wide spectrum of potential ways to mandate and distribute cuts on the Colorado River Basin. The report describes four options for moving forward (without endorsing any one alternative as preferred).
With negotiation leading to little progress over the past year, the idea that one might be selected seems to be increasingly likely as the Basin, to borrow a term for a recent expert paper, is “Dancing with Deadpool.” It would mark a major departure from the norm. The Colorado River saw its first shortage declaration in 2021, triggering cuts that were based on a set of negotiated rules, agreed upon in 2007 and updated in 2019.
Imposing cuts that lack such agreement, as Reclamation concedes, would be a major departure from the collaborative dealmaking that has guided past shortage criteria:
Management of the Colorado River has to date been informed by negotiated stakeholder agreements. In the absence of such agreements, efficient and sustainable management of the reservoirs and system resources under an increasingly broad range of potential future hydrologic conditions would be more challenging than under historical operations and would result in a number of highly undesirable consequences for many users. (emphasis mine)
Why is that? How the cuts are divided matters significantly, and negotiations offer more flexibility, a potential path to finding compromises that a) reconciles hydrologic realities with overallocation and unsettled issues in the law and b) balances risk in a way that may be more equitable. The other alternative, government-imposed cuts, are likely to satisfy few, may lack critical buy-in, and would likely lead to litigation that results in justices picking winners and losers, injecting new risk into the basin.
To me, this is the clear subtext in the report release. The federal government is saying it can and will act, but please come up with your own solution because our acting unilaterally would come with mounting risk no matter how we slice it up.
Will that be enough to motivate the states to reach a compromise?
The threat of federal cuts
The draft report offers a glimpse into the different ways cuts could be imposed. The alternatives offer varying ways to implement/fuse two distinct methods for cutting:
Priority-based cuts: These cuts are based on the priority system, first in time, first in right, as defined through past litigation and Colorado River Basin Project Act.
Pro rata cuts: The pro rata cuts contemplate shortages on a proportional basis, cutting a percentage off of each entitlement across all Lower Basin water users.
These produce noticeably different results. Table 2-2, from the federal report, results from priority-based cuts up to 1.48 million acre-feet. Table 2-3 is the result of a pro-rata based strategy. And it puts in context a headline from the L.A. Times: “Trump administration proposes Colorado River options that could hit California hard.”
* The report focuses on cuts in Arizona, California and Nevada (or the Lower Colorado River Basin), where the Secretary of Interior serves as “water master.” But it’s worth noting that the Upper Basin states of Colorado, New Mexico, Utah, and Wyoming share risk through other constraints, including a Colorado River Compact obligation to send water to the Lower Basin.
The first scenario, Reclamation states, could be achieved under existing authority. Basing cuts on priority in this scenario means Arizona would have to shoulder painful cuts since the Central Arizona Project and other users in the state hold junior rights.
The charts included in Appendix C illuminate just how complicated priority is in the Lower Basin and how many players are involved. While technical, the charts provide a transparent public accounting for how cuts could be staged, and it offers additional context for the intrastate dynamics that constrain the politics of negotiated cuts.
Senior “present perfected rights” (those existing before 1929) exist in all Lower Basin states and would be satisfied first under the priority system. They include federally reserved water rights for Tribal nations and senior rights for irrigation districts and water projects established before the the Boulder Canyon Project Act went into effect.
The second scenario is a pro-rata method. Here, Reclamation looks at what would happen if the federal government were to distribute shortages proportionally across water users in the Lower Basin. Although this spreads pain more equally, it would represent a major departure from the priority system for cuts under existing law.
With all that said, what a final federal plan looks like is anyone’s guess, making the task of writing about it a little challenging. The document makes clear that all of the scenarios could be updated, changed, or combined together in a final report.
The subtext is a threat of litigation
No matter what option is chosen, a federal action could lead to litigation.
See a statement from the Metropolitan Water District of Southern California Friday:
None of the five alternatives analyzed by the Bureau of Reclamation are endorsed by any of the Basin States. The various alternatives highlight the significant risks we could face if we don’t reach an agreement. And implementation of any alternatives would likely lead to lengthy litigation (emphasis mine).
This seems to be clear in parts of the Reclamation report. Even in enforcing Method #1, cutting by priority in accordance with existing law, the federal agency says that the “full extent of Reclamation’s operational authority has not been tested to date — either operationally or through legislative or judicial review.”
As for Method #2, Reclamation offers a qualifying note with the word pro rata: “…additional agreements and other legal authorities would be needed to implement any pro rata operations that are inconsistent with the Decree.”
So federally imposed cuts turn into cuts decided by the U.S. Supreme Court? That adds a high degree of uncertainty to how the waters are divided up in a basin that supports 40 million people in the West. Such litigation could drag on for years and increase risk, with hydrology potentially dictating the real physical constraints and distribution of water much faster than any court ruling could.
Or there is negotiation
The Lower Basin states had pitched a plan in 2024 that combines a proportional and a priority approach. Beyond 1.5 million acre-feet, the Lower Basin’s ask was that the Upper Basin states pitch in with conservation. Sharing the burden of a smaller river, they argued, should fall on all states. The Upper Basin states argue that they already feel the pain of climate change, as creeks in headwater states run dry and cut users off.
And the two sides have been deadlocked for more than a year.
It’s notable, as Kyle Roerink of the Great Basin Water Network said, that the report focuses largely on the Lower Basin while almost appearing to “limit the pain” for the Upper Basin. He said that would result in “unprecedented pain” for the Lower Basin.
But there is still room for a negotiated deal.
The Pacific Institute’s Michael Cohen has argued that rather than positioning itself as a mediator and facilitator, the federal government should come forward with a clear and detailed federal threat for both the Upper and Lower Basin. Doing so could give the states cover to actually reach a brokered deal. Here’s what he told KJZZ yesterday:
COHEN: Part of my reasoning is that there needs to be a credible threat so that the seven basin states have the room to operate. Because we’re in a situation now where the amount of water flowing down the Colorado River continues to decline pretty markedly as the climate gets hotter and drier, there’s simply less water available for everyone. But it’s very difficult for any negotiator, for any of the basin states to step up and basically say, “we’re going to sacrifice ourselves for the good of the whole.” … Whereas if they’re responding to a federal threat, then they have some political cover. And then it gives each of these basin states the ability to step up and say that if we don’t do something now, it’s going to be worse otherwise.
It’s a persuasive argument.
Remainders, closing out tabs, etc…
“The Environmental Protection Agency on Tuesday proposed limiting states’ and Native American tribes’ power to wield the Clean Water Act to block major projects like natural gas pipelines, advancing the Trump administration’s goal of accelerating the construction of new fossil fuel infrastructure and data center.” (Associated Press)
Arizona takes action on groundwater pumping, from the L.A. Times: “…Arizona Gov. Katie Hobbs said Monday that her administration is acting to ‘crack down on the out-of-state special interests that are pumping our state dry while Arizona families and farmers suffer.’”
From RE:PUBLIC: “Last year was a consequential one for America’s public lands. What does 2026 have in store? Presenting 29 bold predictions from the experts.”
“The United States Supreme Court officially declined to hear a case alleging the federal government illegally stiffed water contractors, including the City of Fresno, when it gave them zero water during the crushing 2014-2015 drought.” (SJV Water)
A powerful piece on the past, present and future of Tulare Lake (Tangled Nature)
Trump vetoes bipartisan bill to prove clean water to rural Colorado (KRCC)
Though the U.S. government has shown a willingness to extend these deadlines in the past.