Everyone Knows The Colorado River’s Top Agreement Is Flawed. Why Not Fix It?

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Originally published on November 19, 2018 9:59 am

Colorado River water managers have plenty to argue about. But there’s one thing on which nearly everyone who relies on the southwestern river can agree. The foundational document that divvies up the water -- the Colorado River Compact -- has some big flaws.

Discussion on how to fix the compact’s problems is where that consensus breaks down, often with the invocation of one word: renegotiation.

The late Arizona Senator John McCain learned that lesson the hard way. Back in the summer of 2008 Colorado was considered a swing state. McCain was running for president against Barack Obama.

Water scarcity issues are always top of mind for western politicians. That’s why when reporter Charles Ashby, then with the Pueblo Chieftain, now with the Grand Junction Sentinel, got McCain on the phone, he asked him why Colorado voters should trust an Arizonan when it comes to water.

“I thought that was relevant because he's downstream on the Colorado River,” Ashby says, “and Arizona and Nevada and California are big water users.”

Because of population growth and dwindling water supplies, McCain said he’d be in favor of renegotiating the document that divvies up the river among the seven U.S. states that rely on it. Ashby was floored.

“I knew immediately that was a no-no, at least for politics here in the state of Colorado,” Ashby says. “And so I said to him, ‘Are you sure you want to say that? Because that won't go over well up here.’”

Their phone connection kept cutting out, but McCain called back twice to double down on his idea. Sensing a big scoop, Ashby called a few other Colorado politicians to get their reactions. Prominent Democrats and Republicans agreed that McCain was out of line. Colorado’s sitting Democratic senator at the time, Ken Salazar, went so far as to say we’d be revisiting the Colorado River Compact over his dead body.

“Then Governor Bill Ritter, said to me after that story ran, he said, ‘Charles, that story may have delivered the state to Obama,’” Ashby says.

McCain eventually walked his comments back after a thorough lashing in the press. With one sentence, he had touched a nerve in western water politics.

“A lot of it is just the word choice: renegotiation,” says Doug Kenney, a water policy expert at the University of Colorado-Boulder. Some of Kenney’s work is funded by the Walton Family Foundation, which also funds KUNC’s Colorado River coverage.

The R-word inflames decades-old tensions in the watershed, Kenney says, among states in the Upper Basin, including Colorado, Wyoming, New Mexico and Utah, and those in the Lower Basin, which includes Arizona, California and Nevada.

“I think a lot of the parties think it's scary simply because it's a little scary to negotiate when not all the parties have the same political power,” Kenney says.

That power imbalance is what initially brought political leaders within the watershed to come to the table back in 1922 when the Colorado River Compact was signed. The desert southwest was beginning to growing rapidly and rather than acquiesce all of the river’s flow to the sprawling cities and cropland of southern California, water managers felt it was in their best interest to come to an agreement to divvy up the river amongst themselves. The alternative path was one of conflict and litigation.

Each basin was to receive 7.5 million acre-feet of water per year. The basins then divided that water among themselves. The Upper Basin opted for percentages, with Colorado receiving the largest share. The Lower Basin chose to parse it into discrete, fixed portions with California and Arizona receiving the largest amounts.

Conventional wisdom about the compact’s math goes something like this: When water managers sat down to divide the river among themselves they used the data available to them to figure out how much water they were working with. The period they looked at was uncharacteristically wet. Soon after the compact’s signing the river returned to its more arid state, and right from the start the compact mismatched with reality. More water existed on paper than in the river, creating a gap between water supplies and demands that continues to today. So the story goes: it was no one’s fault, just a historical fluke.

John Fleck, director of the University of New Mexico’s water resources program, says that conventional wisdom is wrong. Allocating more water was the politically expedient thing to do. He’s finishing a book with Colorado River expert Eric Kuhn on what water managers of the 1920s knew about the river’s flow and when they knew it. Scientists with the highly respected U.S. Geological Survey were crowing about the inflated numbers even before the river compact was finished.

“They all concluded the same thing, ‘You're basing this on an unusually wet period. You need to take into account dry periods. There is really less water than you think,’” Fleck says. “And all those scientific experts were ignored.”

Today, there’s broad consensus about the compact’s math problems. While scoffed at a decade ago, McCain’s proposal to renegotiate has support among some environmentalists, like Jen Pelz, wild rivers program director with WildEarth Guardians. She says the only way to fix the river’s fundamental supply-demand problem is to go back to the beginning.

“It's just like curing illness, right? You have to get at the source,” she says.

Old agreements among states to manage water in the West are out of date and don’t reflect modern realities, like climate change or broader environmental concerns, Pelz says. Compacts for the Colorado and Rio Grande rivers allocate every drop for human use. There’s value in leaving water in rivers for recreation and ecosystem health, she says.

“I think that is a huge problem and I think that we don't want to have that conversation because it's hard,” Pelz says.

The river’s foundational problems are front of mind these days as Colorado River water managers are attempting to finalize new agreements called Drought Contingency Plans, designed to boost declining reservoirs and cut back on water use throughout the watershed. Pelz says the plans don’t go far enough.

“It's all like shuffling chairs on the Titanic,” she says. “The ship is sinking still. And if you shuffle all those chairs around and you make it look pretty it’s still not going to make any difference, like the boat is still sinking.”

To ever get to a point where the Colorado River Compact was opened back up, you’d need the support of people like Pat Tyrrell, the Wyoming state engineer. And he is not interested.

“No, I would never advocate going back to the compact,” Tyrrell says.

There’s a work around, he says. Rather than renegotiate the original document, water managers like him come up with new agreements that build on it, and address some of the compact’s bad math. But, he says, it would be unwise to throw the whole thing out.

“If it were to go away there would be a free for all,” Tyrrell says. “There is no magic second compact sitting in the wings behind it, and the battle between Arizona, California, and Nevada against us four upper basin states would be brought anew.”

While water managers today have no appetite for compact changes, it’s uncertain that the compact’s framers meant for the deal to remain unchanged forever. When Commerce Secretary Herbert Hoover was selling the deal to Congress he hedged the agreement’s finality. In 1926 Hoover told members of a House of Representatives committee that if the deal could “provide for equity for the next 40 to 75 years, we can trust to the generation after the next to be as intelligent as we are today.” And that those future water leaders, “will settle it in the light of the forces of their day.”

In his PhD dissertation University of Colorado student John Berggren, now a water policy analyst at Western Resource Advocates, summarized Hoover’s testimony as suggesting that, “at least from Hoover’s perspective, the negotiators of the compact did not intend to make the original allocations of the compact static.”

Hoover gave the agreement’s original math a 75 year shelf life.

“He underestimated us a little bit didn't he? We're still here making it work,” Tyrrell says. “We have shown in the Colorado River basin the ability to adapt. Even in areas where the compact may may feel constraining.”

It’s that word, “adapt,” that these days seems to go over a lot better with Colorado River water managers than the dreaded, “renegotiation.”

This story is part of a project covering the Colorado River, produced by KUNC and supported through a Walton Family Foundation grant. KUNC is solely responsible for its editorial content.

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