On November 24, 1922, representatives of the seven states of the Colorado River basin – Arizona, California, Colorado, New Mexico, Nevada, Utah and Wyoming – gathered in Santa Fe, NM to sign the Colorado River Compact and put a regime in place to set to share the water of the river. These men were all newcomers to a region inhabited by Native American tribes since time immemorial. Two of them represented states as young as a decade, none represented states older than 75 years, and their purpose was to allow colonial settlers to gain a foothold through irrigation-driven economic development.
On the 100th anniversary of the writing of this follow-up document, while water levels in the Colorado River reservoirs have fallen to historic lows, Native American tribes are being denied access to the water that is rightfully theirs, and we are seeing what appears to be a deterioration in that of fresh water dependent ecosystems throughout the basin It is worth asking whether the Compact is serving us well.
Today, the elected leaders of these seven states still regard the covenant as an essential, foundational document, and despite its flaws, it is still considered the bedrock of the “law of the river,” which also includes international treaties with Mexico, federal and state laws, and regulations.
They point to the primary purpose of the pact: “to provide for an equitable division and sharing of use of the waters of the Colorado River system.” By 1922, “prior appropriation” was established as a land right in each of the Colorado River Basin states, meaning those who drew water from the river first had priority water rights and subsequent water developments would be subordinated. If there was not enough water to satisfy all rights, the Senior Right would get water and the Junior would get none. Negotiators from the Upper Basin states of Colorado, New Mexico, Utah and Wyoming shared concerns that water users in the Lower Basin states of California and Arizona would use Colorado River water before they could (Nevada is also in the Lower Basin, but so few people lived there in 1922 that they were not considered a threat). Proof: In 1901, irrigation systems began diverting vast amounts of water from the Colorado River to farms in California’s Imperial Valley and Arizona’s Yuma Valley. Upper-basin states did not nearly utilize these water volumes and sought the right to develop at their own pace in the future without fear that lower-basin states would claim all of the Colorado River’s supply in senior rights. The solution in the Compact was to split the Colorado’s water equally between the upper and lower basins, regardless of the rate at which water was being developed.
It is this “equitable sharing” of the waters of the Colorado that many continue to see as essential. A century later, “equitable sharing” between basins still sounds reasonable, but if the seven Colorado River Basin states want to keep the Colorado River Compact, they have work to do, because the undeniable fact is that in 2022 Colorado river management is broken. The most visible problem is in reservoirs at historic lows and an exceptionally high risk of crisis-level water shortages for the 40 million people and 5.5 million acres of farmland that depend on the river — but that’s not all. The compact overlooked—or intentionally avoided—values that we should uphold as important today, including equity for tribal communities and sustainable ecosystem management. Today’s states may see the pact as essential to keeping the peace, but if they want the pact to survive, they must quickly adapt the pact to today’s standards by adopting rules and agreements that solve a variety of problems:
What the states have defined as a fair distribution, the pact cannot achieve with today’s rivers. Persistent droughts, exacerbated by climate change, have resulted in an average Colorado River water yield of 12.4 million acre-feet over the past few decades, while the Compact estimates a flow of at least 16 million acre-feet. The covenant defines how to achieve equitable water distribution between the upper and lower basins by prohibiting the upper basin from depleting flows to the lower basin below an average of 75 million acre-feet over a 10-year period, but there is not enough water for the Upper Basin to meet that obligation and provide an additional 7.5 million acre-feet of water for annual use. As climate change increases desiccation in the basin and average water yield continues to decrease, the upper basin’s access to the Colorado River will continue to shrink. In other words, drought and climate change have thwarted the Pact’s framework for managing the basin. Going forward, states must either find a way to integrate the realities of climate change into a workable management framework, or risk the impact of an uncertain future on communities, economies, and ecosystems at large.
States negotiated the pact domestically, and without Mexico at the table, recognized that both the upper and lower basins would bear responsibility for water supplies in the event of a later treaty. Years later, the 1944 treaty was passed, but there is no clarity as to which basin is responsible for the water supply. The fact that the states saw fit in 1922 to allocate the waters of the Colorado without involving Mexico speaks volumes about how their negotiators viewed their southern neighbors. Regardless, the 1944 treaty guaranteed Mexico 1.5 million acre-feet of water annually except in the event of an exceptional drought. While the pact specifies that the two basins should share the obligation to supply that water if there isn’t enough in excess of US allotments, there’s no agreement on what that means legally. For example, does the Upper Basin need to ensure that the rivers entering the Lower Basin include an additional 0.75 million acre-feet each year? What would that mean for the Upper Basin’s chances of developing its half of the Colorado waters?
The compact was deliberately avoided inCorporate allocations for Native American tribes who remain largely excluded from Colorado River management decisions and, in too many cases, have not yet been granted access to their water. This seems particularly egregious considering that the Supreme Court ruled in 1908 based on the determination of tribal water rights. Winters v. United States believes that tribes may have an implied right to water based on the terms of their reservation, with seniority based on the contract date of reservation. Today, the 30 state-recognized tribes in the Colorado River Basin have secured rights to up to 20% of all Colorado River water in the basin. However, more than a third of the basin’s tribes have yet to regulate their water rights on the Colorado River. Additionally, even those with established rights still lack sufficient infrastructure to access their water rights in a meaningful way, and all tribes still lack a formal seat at the table where decisions about Colorado River stewardship are made.
The Pact did not and does not recognize nature’s need for water. Nowhere in the Covenant is there language that recognizes the value of water to natural systems and the legions of birds, fish and other wildlife that depend on freshwater-dependent ecosystems. That failure underpins a century of devastating losses. Several programs were established under the Endangered Species Act of 1973, but too many of the rivers in the Colorado Basin remain unhealthy and endangered. Dozens of Colorado River fish and wildlife species are listed as threatened or endangered, and the Colorado River Delta, a lush ecosystem covering 1.5 million acres, was allowed to dry up and disappear in the mid-20th centuryth Century. The US Bureau of Reclamation has raised the prospect that within the next year or two it may become impossible to funnel water through the Glen Canyon Dam, effectively eliminating surface Colorado River flows out of the Grand Canyon. The Pact for Development’s water promise depends on healthy rivers and the region’s economy depends on the sustainability of natural systems. Yet in its application, the Covenant has allowed harm to the Colorado River and its tributaries, to all living beings that depend on them, and to all of us who value it recreationally, culturally, and spiritually.
The looming water crisis in the Colorado River Basin requires urgent management adjustments and adjustments to meet today’s challenges. As the Colorado River Basin States ponder how to share the dwindling water supply, they should also correct the compact’s mistakes, omissions, and omissions. Audubon will remain committed to management that provides improved water supplies to the 40 million people who depend on it, provides Native American tribes with more benefits from their water rights, and provides sustainable habitat for the hundreds of bird and wildlife species that live here. Colorado River Basin States must demonstrate this through adjustment under the Colorado River Compact and the Law of the River. If they instead use the Covenant and other venerable laws to argue that these results are not possible, they will prove that the legal framework needs more than an adjustment – it needs a complete overhaul.