A quantum physicist named Erwin Schrodinger, in a 1935 discussion with Albert Einstein, suggested a concept known as Schrodinger’s Cat, whereby an animal is both alive and dead, depending on unknowable hypothetical circumstances. There is a modern variation, in which someone makes a snide remark and then decides whether to say he is serious or only joking, after seeing people’s reactions. If everyone approves, he was serious, but if he gets nasty looks, he was “just kidding.”
Schrodinger might have appreciated how the Bureau of Reclamation handled its grand announcement last week of new management rules for the anemic Colorado River.
Recall that a couple months ago the Commissioner of Reclamation issued an ultimatum to all seven states that depend on the Colorado River, demanding they slash their water use by millions of acre feet. The total reduction demanded virtually equaled Colorado’s entire share, and the states were given 60 days to come up with an “acceptable” plan. Otherwise, the Bureau threatened to thrust aside the Interstate Compact, ignore a century of western water law, abolish the legal distinction between Upper and Lower Basins, and assume complete control of the allocation of water among the states.
The Bureau got more than just nasty looks from all, so when the 60 days expired last week, the agency all but said, “we didn’t mean it.” The final decision on management of dams, reservoirs, and canals for the next year did not come close to the threatened actions, because of the push-back from the states. In fact, the government’s press release contained little of the earlier bluster, sidestepping all its earlier threats, especially in the Upper Basin states of Colorado, Wyoming, Utah, and New Mexico.
The states’ reactions were diplomatic and nicely worded but nevertheless firm. California said it has no intention of reducing its historic overuse of its entitlement. Take it from Arizona, said California’s largest irrigation district. Colorado water leaders reminded the Bureau that the state has never used its full entitlement and cannot be expected to use less, especially while California refuses to do so. The entire Upper Basin refused to acknowledge any such federal authority and said it would continue to operate within the drought management plan already agreed to by all seven states.
You see, the Upper and Lower Basins, divided just below Lake Powell, have completely different legal arrangements with the federal government. That’s because when the Interstate Compact was negotiated in 1922, the Lower Basin could not agree on how to distribute its half of the water. Arizona refused to ratify the Compact until Congress forced the issue with the 1928 Boulder Canyon Act, the same law that authorized Hoover Dam. Conversely, the Upper Basin states adopted their own Compact, distributing the water among those four states by percentages of the flow. The Lower Basin instead agreed to a federal standard based on fixed amounts of water (no matter what the river’s actual flow is in different years), with California getting the lion’s share.
A series of lawsuits between Arizona and California followed, finally settled by the U.S. Supreme Court in the 1960s by making the Interior Department “water master” of the Lower Basin. No such federal authority exists in the Upper Basin, its allocations being administered by its own Upper Colorado River Commission, including its obligatory deliveries to the Lower Basin through Lake Powell. Agreements between Upper and Lower Basins are carefully negotiated and very delicate. Lower Basin states regularly suggest rewriting the Compact, always a threat to the Upper Basin. Thus, when the Bureau of Reclamation threatened to administer the river as one united basin with no legal distinction, taking water from wherever it pleases and allocating it however federal officials please, the idea was met with worse than nasty looks. The unmistakable message was that such actions would prompt immediate litigation.
So, with that kind of battle looming, and its legal position tenuous, what did the Bureau decide to do? The agency took the path of least resistance, mainly in the Lower Basin. California gets a complete pass, while Arizona’s allocation is reduced by 21 percent, Nevada’s by eight percent, and Mexico’s by seven percent. And the government committed billions for studying possible improvements at Glen Canyon Dam. For the Upper Basin, the Bureau sidestepped the issue entirely, not wanting to take on the ensuing legal battle. In fact, the announcement specifically emphasized “voluntary agreements,” implicitly acknowledging its weak legal authority. This was a trial balloon, which the Bureau raised to see who might shoot at it. Lots of water leaders did, so the message quickly morphed into “just kidding,” though for Colorado and the other Upper Basin states, this was no joke.
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