Every year for the past 25, at least, negotiating teams for the seven states on the Colorado River have worked to overcome a new crisis, invariably driven by two entities: the State of California and the federal Bureau of Reclamation (BOR). For a quarter-century, those teams have responded to federal pressure based on the dubious theory that an ongoing drought, and a resulting decline in the river’s flow, somehow changed the law and gave BOR authority to ignore the Interstate Compact.
Not once has the federal agency ever acknowledged the government’s own role in reducing the river’s flow, by neglecting to manage thirsty invasive species like tamarisk, and especially by allowing national forests to become so overgrown that much of the snow never makes it to the river. It is easier simply to demand that everyone use less water. But that assumes an authority BOR does not have, under any law, to make such demands.
Yet here we are again, the states trying to reach yet another agreement, with an arbitrary May deadline imposed by BOR, to replace the current drought plan which expires in two years. Headlines across the West warn, “States have mere weeks to reach water agreement.” As in previous years, BOR threatens to take control of the river away from the states and impose its own solution if they don’t come up with an “acceptable” plan.
Here’s the problem: BOR owns and operates dams and reservoirs, but it does not own the water in the river, nor does it have any authority to decide how that water is distributed. Colorado River water is allocated according to a complex set of interstate compacts and agreements known collective as the “law of the river,” based on the underlying 1922 Interstate Compact and the 1948 Upper Basin Compact, both of which were written by the states and ratified by Congress, superseding other statutes and regulations. My own copy is a heavily dog-eared three-ring binder that I have read and re-read for years, never yet finding a single paragraph that includes the words, “unless there is a drought, in which case the BOR may ignore the compact.”
The new Administration needs to rein in the BOR and return management decisions on western water to those states, as intended. The fact that BOR owns the dams at places like Blue Mesa and Flaming Gorge does not give it legal authority to arbitrarily drain those lakes, send the water to Lake Powell so it can replenish Lake Mead and provide more water for California. That state has been using far more than its entitled share for decades, and the Upper Basin states of Colorado, Wyoming, Utah, and New Mexico have no remaining reason to be sympathetic.
California has 800 miles of coastline on the world’s largest body of water. It does not need the Colorado River. Governor Gavin Newsom’s highly-touted state water plan includes desalinization projects, but the infamous California Coastal Commission recently killed the one large project that had been in the works for 20 years, demonstrating that the state is not serious about solving its water problem. The recent catastrophic forest fires revealed that its own reservoirs had been emptied to enhance fish habitat, driving an even larger wedge between California and the Upper Basin states – which were never consulted about those decisions.
Now that the states are all back at the table trying to find an agreement to satisfy BOR, the Lower Basin states of California, Arizona, and Nevada – as always – are pointing the finger upstream. Those states welcomed Interior Secretary Doug Burgum by immediately raising the Colorado River issue and – as always – looking for under-used Colorado water to solve their problem. Their welcome letter to Burgum accused BOR of ignoring the alternative they had suggested. And what was their suggestion? “Some combination of straightforward engineering fixes, moving water to Lake Powell from upstream reservoirs when necessary, and temporary reductions in Upper Basin use.”
Upper Basin states must draw a line in the sand. BOR wants the Upper Basin to voluntarily “conserve” half-a-million acre-feet a year (“conserve” meaning to send the water downstream), an option those states should flatly reject. Water conservation is a choice they may make, but BOR has no power to require it.
That idea should never have been floated in the first place, Upper Basin states should never have acknowledged it, and they should meet this artificial May deadline with an icy insistence that California first produce a reasonable plan to solve its own water problem.
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