This story first appeared at coloradosun.com.
By Shannon Mullane, Colorado Sun
Seven states in the Colorado River Basin are days away from a Nov. 11 deadline to hash out a rough idea of how the water supply for 40 million people will be managed starting in fall 2026. And they’re still at loggerheads over what to do.
The rules that govern how key reservoirs store and release water supplies expire Dec. 31. They’ll guide reservoir operations until fall 2026, and federal and state officials plan to use the winter months to nail down a new set of replacement rules. But negotiating those new rules raises questions about everything from when the new agreement will expire to who has to cut back on water use in the basin’s driest years.
And those questions have stymied the seven state negotiators for months. In March 2024, four Upper Basin states — Colorado, New Mexico, Utah and Wyoming — shared their vision for what future management should look like. Three Lower Basin states — Arizona, California and Nevada — released a competing vision at the same time. The negotiators have suggested and shot down ideas in the time since, but they have made no firm decisions.
As the clock ticks down, onlookers have been increasingly frustrated and critical of the lack of progress in the closed-door negotiations.
“They seem to have been stuck basically on the same stuff for the last two-plus years,” said Jim Lochhead, former CEO/manager for Denver Water, the state’s largest water provider. “Part of why it’s so frustrating is they keep circling around to the same conversations over and over again.”
The Department of the Interior is managing the process to replace the set of rules, established in 2007, that guide how key reservoirs — lakes Mead and Powell — store and release water.
The federal agency plans to release a draft of its plans in December and have a final decision signed by May or June. If the seven states can come to agreement by March, the Department of the Interior can parachute it into its planning process, said Scott Cameron, acting head of the Bureau of Reclamation, during a meeting in Arizona in June.
If they cannot agree, the feds will decide how the basin’s water is managed. The federal government already has significant authority in the Lower Basin. But federal officials have also said they could leverage their authority over federal water projects in the Upper Basin, like Blue Mesa and the Colorado River Storage Project, to manage water in coming years.
The states could also take the matter to court, which could take decades to resolve and would put water management in the hands of judges instead of Colorado River communities, experts say.
“I think, if the definition of failure is that they don’t come to an agreement, we’ll know on Nov. 11,” said Sarah Porter, director of the Kyl Center for Water Policy at Arizona State University. “My sense is that they’ve all tried really hard.”
So what exactly is holding up progress? The Colorado Sun reached out to nine water professionals, from state negotiators to water experts, to break down the sticking points.
Water cuts in the Upper Basin (yes, that includes Colorado)
One of the top sticking points in the negotiations is whether the four Upper Basin states will commit to making firm water cuts or conservation goals during the basin’s driest years, experts said.
Colorado, New Mexico, Utah and Wyoming officials say the states regularly do not use their full legal allocation of Colorado River water, about 7.5 million acre-feet per year. The four states’ usage usually hovers closer to 4.5 million acre-feet per year and can fall to 3 million acre-feet in drier years, according to Upper Basin accounting.
They’re already cutting off junior water users early in dry years, like 2022. Water sharing is based on “first in time, first in right,” which means more recent, or junior, water rights are cut off before older, senior rights.
The officials argue that they’re already cutting back, and using less than their share, so why commit to cutting more? Conserving more water is also dependent on how much water is flowing through rivers and streams in any given year, Commissioner Becky Mitchell, Colorado’s governor-appointed negotiator, said.
“We cannot conserve water that is not there,” she said.
In March 2024, the states proposed voluntary, temporary cuts, but that doesn’t work for the Lower Basin officials.
The downstream states proposed in March 2024 that they could take the first cuts — up to 1.5 million of their 7.5 million-acre-foot legal allocation — if reservoir storage is 38% to 69% of its capacity. After that, the Upper Basin and Lower Basin could evenly split additional cuts, according to the Lower Basin proposal.
That was a nonstarter for the Upper Basin officials, who balked when the Lower Basin asked them to cut up to 1.2 million acre-feet, or about a quarter to a third of the typical water use in the upstream states. Some of the Upper Basin states also say they do not currently have the legal authority to impose mandatory water cuts within their states when it comes to interstate water sharing agreements.
This is one of two major disagreements in the negotiations, according to California Commissioner JB Hamby. The other is how and when water is released from the Upper Basin at Glen Canyon Dam to the Lower Basin, he said.
“There’s been lots of proposals bandied about back and forth between the basins and the feds,” Hamby said. “We’re not any closer at this point in time because those are the two most critical sticking points.”
Arizona officials declined to comment for the story. Nevada’s representative did not respond to requests for comment.
The political sticking point
Each of the seven negotiators is accountable to their home state. They have to be able to sell a deal to their water users and state lawmakers in a way that feels like a win, Porter of Arizona State University said.
In Arizona, Commissioner Tom Buschatzke must strike a deal that water users and the state legislature can get behind.
“There may be a situation where no deal is better than trying to sell a deal to your water users that you know they will utterly hate,” Porter said.
There are certain nonstarters for Arizona: Everyone expects to see water cuts for communities, like Phoenix, that rely on the Central Arizona Project, a 336-mile federal system that supplies Colorado River water to the most populated regions in Arizona. But it’s hard to see a benefit for Arizona in a deal with no water, or not enough water, for the project, Porter said.
And water users can sue if they don’t like the seven-state deal or if senior water users are asked to cut back on water to help junior water users. That would run counter to how the legal priority system has worked for over a century. Such lawsuits would tie up Colorado River water management in court for years, Porter said.
“We’re really on the precipice of significant new, bigger shortages, and so the likelihood of a water user bringing legal action because of cuts outside of the priority system … is much higher than it was in 2019,” Porter said.
In past meetings, Cameron of the Bureau of Reclamation has called on water users to be more flexible so their state commissioners have room to negotiate.
“I urge you to continue to work with Tom (Buschatzke), embrace his leadership and give him the freedom to maneuver to strike an appropriate deal with his six colleagues in the other states,” Cameron said during an Arizona Reconsultation Committee meeting in June.
In Colorado, Mitchell said she is still working closely with water users within the state.
“We have firmly sat in the negotiating room with the principles we have always had,” she said. “That is something I have promised Coloradans: The principles that we developed are still the principles that I am taking into the room with me. Those are factored in as we are negotiating.”
What experts want to see
Water experts and professionals have been stuck on the outside of the closed-door negotiations, waiting on updates with greater frustration as the deadline draws near.
Now the states have less than two weeks to agree, at a high-level, on how to manage the water supply for millions of people, two countries, 30 Native American tribes, key food supplies and multibillion-dollar industries.
“They have the most thankless task that anyone in the Colorado basin could have,” Porter said.
Lochhead, formerly of Denver Water, said it seems impossible to reach any kind of comprehensive agreement before Nov. 11. They might be able to reach a conceptual outline, he said. They might be able to find a way forward if they were less entrenched in the Upper Basin versus Lower Basin dynamic, he added.
Jennifer Pitt, Colorado River Program Director for the National Audubon Society, suggested that states work toward making the most out of water supplies instead of legal questions that are tough to resolve.
“Once the rules of the game become clear, people are going to lean hard into those solutions,” she said. “And there are many of them.”
John Berggren, regional policy manager for Western Resource Advocates, said the basin needs to see compromise as a win, not a loss. Officials need to educate their constituents that compromising empowers people to choose their destiny, instead of having courts or the federal government dictate it for the basin.
“A compromise is not a bad thing,” Berggren said. “Coming to agreement, coming to the table is actually a good thing for us.”
10 sticking points
The Colorado River water experts and negotiators highlighted 10 key sticking points:
- The term of the agreement: The negotiators have weighed different options for how long the new agreement should last and whether there should be a short-term period for states to ramp up conservation programs and water use reductions. This is a lower-level sticking point where states might be able to find consensus more easily.
- Reservoir management: The states have also debated which reservoirs will be managed under the new agreement. The Lower Basin wants to include upstream reservoirs, including Blue Mesa Reservoir in Colorado. The Upper Basin only wants Lake Mead and Lake Powell involved and worries that including upstream reservoirs will change how water flows through the basin or encourage Lower Basin overuse.
- Rebuilding reservoir storage: Commissioner Mitchell of Colorado was adamant that the new plan needs to prioritize rebuilding reservoir storage, since key reservoirs — Lake Mead and Lake Powell — are falling closer to critical levels. Commissioner Hamby of California said the states can figure out how to handle reservoir storage, and other issues, like water cuts, pose a greater challenge.
- Operating Lake Mead and Lake Powell: The current operational rules are mainly based on reservoir levels and river forecasts. When Lake Mead reaches a certain water level, it triggers adjustments in Lake Powell. The state officials agree these rules did not work. Colorado wants to prioritize the health of Lake Powell and base operations on real water levels — not forecasts. The states almost came to an agreement on how to do this earlier in the summer, but the idea was re-shelved.
- Cutting back on water: This is a particularly thorny issue. Would the Upper Basin commit to firm water conservation goals or mandatory cuts? Is the Lower Basin doing enough to address the Upper Basin’s concerns about overuse in the three downstream states? Officials in both basins say large cutbacks to their water supply would be an existential threat to their communities now and in the future.
- Basic accounting: The states disagree on key numbers. How does each state count its water use, shortages and conservation efforts? How much water is the Upper Basin supposed to send down to Mexico, or is that the Lower Basin’s job? How do downstream states count water use from tributaries, like the Gila River?
- 100-year-old issues: The states are also bolstering their legal arguments when it comes to unclear language in the Colorado River Compact of 1922, which laid out how the two basins were supposed to share water. Does it say the four upstream states are required to deliver a certain amount of water to the three downstream states? Or does it say the upstream states aren’t supposed to cause the water deliveries to go below a certain level? Some Upper Basin lawyers say they can argue that climate change, not the states’ water use, is the cause.
- Distrust: The basin states have thrown plenty of barbs at each other during the negotiations. Each has accused the other of gaming the system in some way. Lower Basin and Upper Basin officials have said other states could time reservoir releases from lakes Mead or Powell to benefit their state. The Lower Basin has questioned whether the Upper Basin has inflated shortage calculations. The Upper Basin has long complained about Arizona’s practice of taking Colorado River water out of Lake Mead and storing it underground.
- Group dynamics: The basin has split into Team Lower Basin and Team Upper Basin. Could states make more progress if they operated more independently, threw out ideas, formed coalitions and convinced others to join?
- In-state politics: Even if the state officials can work out the details of an agreement, they still have to take it home and convince their states it’s a good idea. That can be complicated. In Colorado alone, there are decades-old conflicts over water between the Western Slope and Front Range, farmers and cities, tribal and non-tribal water users.
Editor’s note: This story is a product of Fresh Water News, a nonprofit news organization.
