sign in sign up
<<
Home , Lagoon

The Last Green Lagoon: How and Why the Bush Administration Should Save the Colorado

Robert Jerome Glennon*and Peter W. Culp**

Introduction ...... 905 I. The Law of the River ...... 912 A. The Colorado River Compact and the Mexican Water Treaty ...... 913 1. The Upper Basin ...... 917

Copyright © 2002 by the Regents of the University of California * A.B., 1966, J.D., 1969, Boston College; M.A., 1972, Ph.D., 1981, Brandeis University. Professor Glennon is the Morris K. Udall Professor of Law and Public Policy at the James E. Rogers College of Law, the University of Arizona. ** B.A., 1994, University of California, Santa Cruz: J.D., 2001. the University of Arizona. Mr. Culp is an attorney with the Environmental Law Department of Squire, Sanders & Dempsey, L.L.P., in Phoenix, Arizona. In September 2000, we first presented this paper as the keynote address at a three-day symposium.... to the Sea of Cortes: nature, water, culture, and livelihood in the Lower Colorado River Basin and Delta, in Riverside, California, jointly sponsored by the Ford Foundation, the U.S. Environmental Protection Agency - Region 9, the U.S. Department of the Interior, UC MEXUS, the University of California Office of the President, the Morris K. Udall Foundation, and the Centro de Investigaci6n y de Educaci6n Superior de Ensenada (CICESE). We are grateful for comments and suggestions made by John M. Bernal, Marta Macias Brown, Steve Cornelius, David Gantz, David H. Getches, Eric Handler, Malissa McKeith, Robert F. Snow. William H. Swan, Alberto Szdkely, and Martha P. L. Witaker. Edina Strum, class of 2002, James E. Rogers College of Law, the University of Arizona, provided initial help with the footnotes. We are also grateful to Dean Toni M. Massaro, of the James E. Rogers College of Law at the University of Arizona, for financial support. In preparing the manuscript for publication, it was a pleasure to work with Ecology Law Quarterly'sRyan Waterman. Finally, Peter Culp owes a particularly deep debt of gratitude to Luther Propst and Steve Cornelius of the Sonoran Institute, who hired Mr. Culp - then a first-year law student - to write a report on the Law of the River and the limitations it would impose on water transfers to the Colorado River Delta. This report was awarded the 2000 Lillian S. Fischer Prize in Environmental Law and Public Policy by the Udall Center for Studies in Public Policy. The Udall Center subsequently published an expanded version of the report, and generously funded the development of a summary version of the Sonoran Institute Report for the benefit of participants at the September 2000 symposium.... to the Sea of Cortes: nature, water, culture, and livelihood in the Lower ColoradoRiver Basin and Delta, in Riverside, California. ECOLOGY LAW QUARTERLY [Vol. 28:903

2. The Lower Basin ...... 918 B. Keeping the Status Quo: Restrictions on Transfers in the Law of th e River ...... 921 11. Increasing Demands on the Colorado River ...... 926 A. Population Growth and Groundwater Overdraft ...... 926 B. Increasing the Pressure: Indian Reserved Rights ..... 927 C. The Growing Problem ...... 930 D. Efforts to Save the Salton Sea ...... 933 E. The Inevitable Future: Moving Water from Farms to C ities ...... 9 36 III. Recent Developments on the Lower Colorado ...... 937 A. The Arizona Water ...... 937 B. Interstate Water Banking ...... 938 C. Moving Water from Agricultural to Municipal Use: The Seven Party Agreement, the "4.4 Plan," and the "Quantification Settlement Agreement"...... 939 D. Giving in to the Pressure? The New Colorado River Surplus Criteria ...... 945 IV. Proposals for Securing Water for the Delta ...... 951 A. Using Federal Law to Coerce Change: The Pacific Institute Proposal and Defenders of Wildlife v. B abb itt ...... 952 1. The Pacific Institute Proposal ...... 953 2. Defenders of Wildlife v. Babbitt ...... 957 B. Using the Market to Secure Water for the Delta: The Sonoran Institute and Clinton Engineering Proposals ...... 963 1. The Sonoran Institute Proposal ...... 963 2. The Clinton Engineering Proposal ...... 966 C. The Best Course for Saving the Delta ...... 971 V. Reaching International Agreement: Administering the Return of Instream Flows to the Delta ...... 977 A. The International Boundary and Water Com m ission ...... 978 B. Enforcing a Transfer Program: The Extent of IBWC Minute-Making Authority ...... 981 C on clu sion ...... 986 2002] THE LAST GREEN LAGOON

INTRODUCTION The late Marc Reisner once wrote: "In the East, to 'waste' water is to consume it needlessly or excessively. In the West, to waste water is not to consume it - to let it flow unimpeded and undiverted down rivers."' By Reisner's western standards, the modem Colorado River represents the ultimate achievement in hydrological engineering - a river that in most years no longer reaches the sea. With the river now supporting more than 30 million people and 3.7 million acres of irrigated farmland, every drop of the Colorado is carefully planned and controlled. delivered with mathematical precision through a nearly incomprehensible plumbing system of dams, headgates, and canals.2 Even more amazing - or terrifying - is the speed with which this feat of engineering was accomplished. Less than a century ago, the Colorado was a muddy, free flowing river. Diversions of water from the river did not even begin until the early years of the twentieth century, when settlers in California's Imperial Valley began to draw water from the river. 3 As late as 1916, steamboats journeyed regularly from the of California through the Colorado River Delta, navigating well past the town of Yuma, Arizona to provide materials and supplies for early miners.4 Today, a canoe would barely float on much of the river's length below the last diversion at Morelos Dam. While the transformation of the Colorado from river to rivulet has had tremendous environmental consequences throughout the Colorado River Basin, perhaps no place has been more grievously injured than the Colorado River Delta. When Aldo Leopold visited the Colorado River Delta in 1922, he encountered a lush landscape of riparian forests, , and lagoons. Leopold's description ranks as one of the most lyrical passages in modem naturalist literature: ... the river was nowhere and everywhere, for he could not decide which of a hundred green lagoons offered the most pleasant and least speedy path to the Gulf. So he traveled

1. MARC REISNER, CADILLAC DESERT 12 (1986). 2. See Jennifer Pitt et al.. Two Nations, One River: Managing Ecosystem Conservation in the Colorado River Delta, 20 NATURAL RESOURCES JOURNAL 819, 827 (2000). 3. See DALE PONTIUS, COLORADO RIVER BASIN STUDY (Report to the Western Water Policy Review Advisory Commission) 8-13 (1997). 4. See generally RICHARD E. LINGENFELTER, STEAMBOATS ON THE COLORADO RIVER 1852-1916 (1978). ECOLOGY LAW QUARTERLY [Vol. 28:903

them all, and so did we. He divided and rejoined, he twisted and turned, he meandered in awesome jungles, he all but ran in circles, he dallied with lovely groves... the still waters were of a deep emerald hue ... a verdant wall of mesquite and willow separated the from the thorny desert beyond. At each bend we saw egrets standing in the pools ahead... Fleets of cormorants drove their black prows in quest of skittering mullets; avocets, willets, and yellowlegs dozed one-legged on the bars; mallards, widgeons, and teal sprang skyward... Often we came upon a bobcat... Families of raccoons waded the shallows... Coyotes watched us ... At every shallow ford were tracks of burro deer.' Each year, millions of acre-feet6 of Colorado River water laden with fertile and nutrients flowed into the Delta, supporting a thriving ecosystem that supported countless species of birds, animals, and plants, and a prodigious fishery in the Sea of Cortes.7 In turn, this natural wealth sustained a rich and diverse indigenous culture based on fishing, harvesting, and small-scale irrigated farming. 8 Thirteen years after Leopold's visit, Hoover Dam closed its gates, severely restricting the supply of water to the Delta region. 9 Morelos Dam, completed in 1950, cut the flows further.'0 After the completion of Glen Canyon Dam in 1964, virtually no water reached the Delta." Without water, periodic flooding, and , the Delta ecosystem was violently transformed. Its extensive wetlands, which once covered nearly 1.8 million acres, were reduced to perhaps 40,000 acres, 2 devastating Gulf fisheries, wildlife populations, and Delta communities. 3

5. ALDO LEOPOLD, A COUNTY ALMANAC 142-143 (1948). 6. An "acre-foot" is the volume of water required to cover one acre of land to a depth of one foot, or 325,851 gallons. We will abbreviate "acre-foot" as "af," and a million acre feet as "maf." 7. See generally Micha Kowalewski et al., Dead delta'sformer : Two trillion shells at the mouth of the Colorado River, 20 GEOLOGY 1059 (2000); Carlie A. Rodriguez et al., Macrofaunal and isotopic estimates of the former extent of the Colorado River , upper , Mexico, 49 J. OF ARID ENv'Ts 183 (2001). 8. See generally Jim Carrier, The Colorado: A River Drained Dry, NATIONAL GEOGRAPHIC, June 1991, at 4. 9. PHILIP L. FRADKIN, A RIVER No MORE: THE COLORADO RIVER AND THE WEST 321 (1981). 10. See id. 11. Mark K. Briggs & Steve Cornelius, Opportunitiesfor Ecological Improvement Along the Lower ColoradoRiver and Delta, 18 WETLANDS 513, 515 (1998). 12. See Sue McClurg, Cutting Colorado River Use: The CaliforniaPlan, WESTERN WATER, Nov./Dec. 1998, at 12. 13. See Briggs & Cornelius. supranote 11, at 515 (1998). 20021 THE LAST GREEN LAGOON

By the time Powell finally filled to capacity in 1980, the diversions of water along the Lower Colorado had depleted virtually the entire flow of the river in an average year, leaving little or nothing for the Delta. This was the Colorado River Delta that Philip Fradkin encountered on a canoe trip in 1980. In his book, A River No More, Fradkin bleakly described the wasteland that was the Colorado River Delta. Instead of emerald green lagoons, abundant wildlife, and "awesome jungles"'4 of cottonwood and willow, he found a vast expanse of cracked mud and inhospitable terrain, such that even "locating the end of the river had proved to be a difficult goal." i" The extensive environmental damage chronicled by Fradkin and other visitors to the region, coupled with the Delta's apparently waterless future, led many environmentalists to conclude that the Delta was effectively dead, or at least damaged beyond repair. 6 Notwithstanding this dire state of affairs, events over the last two decades have proved that the reports of the Delta's death were at least premature. In the early to rnid-1980's, and again in the mid-1990's, El Nifio cycles produced heavy snowpacks and spring floods that surpassed the storage capacity of the reservoir system, leading to heavy flood releases from American reservoirs.' 7 For several years in each cycle, brief but substantial flood flows reached the Delta. The explosion of vegetation, wildlife, and fisheries that occurred as a result of these isolated flows of water shocked even the experts. 8 In a matter of years, the Delta's riparian habitat rebounded to more than 150,000 acres. 9 As a result, the Delta now supports more riparian habitat than the entire stretch of the Colorado between the Grand Canyon and the Mexican border, even though that region is five times longer than the Delta.2" Over this same period, the Delta has also survived - and thrived - on agricultural wastewater.2 Wetlands have sprung up at discharge locations of agricultural drains, most notably in the

14. See LEOPOLD, supra note 5, at 142. 15. FRADKIN, supra note 9, at 320. 16. Michael J. Cohen, et al., A Preliminary Water Balancefor the Colorado River Delta, 1992-1998, 49 J. OFARID ENV'T 35, 36 (2001). 17. See Edward Glenn et al.. New Value for Old Water, WORLD & I,Apr. 1997, at 204, 208. 18. SeePiTrETAL., supranote 2, at 821. 19. See generally DANIEL F. LUECKE ET AL.. A DELTA ONCE MORE: RESTORING RIPARIAN AND HABITAT ON THE COLORADO RIVER DELTA 1 (1999), available at http://www.edforg. 20. See Briggs & Cornelius, supra note 11, at 515-516. 21. See id. at 515. ECOLOGY LAW QUARTERLY [Vol. 28:903

Cienega de Santa Clara, an enormous wetland located slightly to the east and north of the mouth of the Colorado. Although the Cienega is physically disconnected from what remains of the "natural" Delta, it is the largest emergent wetland habitat in the Sonoran Desert, and has grown to serve a critical ecological role In the Delta ecosystem, providing thousands of acres of stable, open water habitat.22 Fed by a constant flow of highly saline wastewater from the Wellton-Mohawk Irrigation and Drainage District (near Yuma, Arizona) through the Main Outlet Drain Extension (MODE) canal, the Cienega currently supports more than 40,000 acres of lush wetlands and pools, providing important habitat for resident water fowl, the Pacific Flyway, and 23 endangered Yuma Clapper Rail and Desert Pup . the 24 Figure 1: The Colorado River Delta

22. See id; see also LUECKE, supra note 19, at 6-7. 23. See Briggs & Cornelius, supra note 11, at 515; Jennifer Pitt et al., Replacing the Bypass Flow on the Colorado River: Economic and Environmental Considerations 1 (August 2001) (unpublished paper, on file with authors). 24. Figure courtesy of the U.S. Bureau of Reclamation, adapted by authors. 20021 THE LAST GREEN LAGOON

This remarkable regenerative capacity has rekindled interest in the Delta. Recent research has revealed that the Delta plays a crucial ecological role in both the U.S. and Mexico, and indeed throughout the North American continent.2 5 The Delta's historic freshwater flows dilute the salty sea, providing habitats crucial to the successful reproduction of countless species of fish, shrimp, invertebrates, and other marine animals in the Sea of Cortds.2 6 The influx of freshwater also provides a continuous supply of rich nutrients to the Sea of Cortds' , which during the Delta's heyday ranked as one of the most diverse and productive on Earth." The Delta also serves as an enormous species reservoir. few species are endemic to the Delta itself, virtually all Although 2 8 inhabit upstream riparian habitats in the Colorado River Basin. Historically, when floods, droughts, and other catastrophes wiped out species in parts of the river basin, Delta populations would move upstream to colonize vacant habitats,29 preventing extinctions and preserving biological diversity. Finally, the Delta performs an important ecological function on a continental scale, serving as a major stopover point on the Pacific Flyway, a bird migration corridor through which more than 75% of North American birds pass each year as they make their way north and south." The widespread loss of wetland and riverine habitat throughout the American West and Southwest has made the Delta's role all the more critical. The remarkable ecological comeback in the Delta over the past decade and a half is cause for hope that this crucial ecosystem can be preserved. However, the Delta's enormous regenerative capacity is currently being stretched to its limit. Long-term restoration of the Delta will require one critical ingredient - more water.3 Unfortunately, the inadequate amount of water the Delta receives today is guaranteed to decline in the future. More efficient operation of the river system and its associated irrigation projects will reduce flood and wastewater flows to the Delta.3 2 Without a legally guaranteed flow of water,

25. See LUECKE. supra note 19, at iv. 26. Id. at 2, 7. 27. Id. at 2. 28. See Pitt et al., supra note 2, at 825-826 29. E-mail from Edward Glenn, Professor of Soil, Water, and Environmental Science, University of Arizona (March 8, 2002). 30. Pitt et al., supra note 2, at 829-30. 31. See generally Briggs & Cornelius, supra note 11. 32. See discussion infra Part IV.D. ECOLOGY LA W QUARTERLY [Vol. 28:903 the Delta will inevitably be pushed - permanently - past its ecological limits. Thus, there is an urgent need to explore methods to assure permanent legal protection of flows to the Delta region. At the same time, increasing municipal demands on the River make the provision of water for the Delta a seemingly insurmountable task. The health of the Delta also represents a growing international relations problem for the United States. The relationship between the U.S. and Mexico with regard to the Colorado River has not been friendly; conflicts over water quantity and quality - particularly salinity - plagued U.S.- Mexico relations throughout the latter half of the twentieth century. 3 This conflict most recently erupted over the latest version of the Colorado River Surplus Criteria,34 which, as we shall argue, will almost inevitably reduce both the quantity and quality of water that reaches Mexico, and threaten the continued health of the Delta. Indeed, the newly-elected Fox administration in Mexico recently protested then-U.S. Secretary of the Interior Bruce Babbit's acceptance of the new criteria in his January 2001 Record of Decision.3 5 With a sense of urgency and opportunity, this paper provides an overview of the legal regime that controls water distribution on the Colorado River, documents the significant changes to that regime that will take effect over the next few years, and analyzes their probable impact on instream flows in the Delta. As we shall argue, recent developments along the Lower Colorado indicate that continued flows to the Delta and the Cienega are at serious risk. Given this concern, we evaluate four recent proposals for securing water for the Delta: the Pacific Institute proposal, the Defenders of Wildlife lawsuit, the Sonoran Institute proposal, and the Michael Clinton Engineering proposal. We argue that the voluntary, purchase-and-transfer based models proposed by the Sonoran Institute and Michael Clinton Engineering represent practical, economical, and politically realistic options for

33. See discussion infra Part III(C) & V(B)(2); see also Marc A. Sinclair, The Environmental Cooperation Agreement Between Mexico and the United States: A Response to the Pollution Problems of the Borderlands, 19 CORNELL INT'L L.J. 87, 109- 11(1986). 34. See discussion infra Part VI. 35. Record of Decision, Colorado River Interior Surplus Guidelines, 66 Fed. Reg. 7,772 (Dep't Interior, Jan. 25, 2001); see also Mexico Expected to Spend Billions of Dollars to Ensure Adequate Water Supplies For Growing Population,SOURCEMEX EcON. NEWS & ANALYSIS ON MEX., March 14, 2001, available at 2001 WL 10229503. 20021 THE LAST GREEN LAGOON providing a permanent supply of water to the Delta.3" Nonetheless, any such program will require political and financial support from both countries, particularly the U.S. The attitude of the Bush administration could well make or break a water transfer program, and determine the fate of the Delta. As we shall explain, the growing international relations dimension to this environmental crisis may provide, quite unexpectedly, the forum for a permanent solution. While the Bush Administration has disappointed many environmentalists by its recent decisions to abandon the Kyoto Accord, weaken Clean Air Act and Clean Water Act protections, revisit the Clinton Administration's ban on new roads in national forests, weaken public lands regulation, and promote drilling in the Arctic National Wildlife Refuge," the Administration has promised to improve U.S. relations with Mexico.a The Colorado River has been a sticking point in this relationship for more than fifty years,39 and the health of the Delta is critical to the interests of both Mexico and the U.S.40 The numerous economic, cultural, environmental, and international relations benefits of a Delta program justify immediate action. The cost of a Delta restoration program is minor when compared to these benefits. Preliminary studies of the Delta restoration have demonstrated that the amount of water required to restore and preserve critical species is rather modest, perhaps only 32,000 acre-feet (af) each year, with periodic "flood" flows of perhaps 260,000 acre-feet.4 ' The primary question is where to get this water. One source of water north of the U.S.-Mexican border is the Wellton-Mohawk irrigation district in Southern Arizona.4 2 Other potential water sources include neighboring irrigation districts and lower Colorado River tribes.4" Because this program would also achieve significant salinity reduction benefits, such a project would provide substantial net economic benefits to both the United States and Mexico. The United States plans to spend billions of dollars to preserve and restore areas such as the California -Delta and the Everglades."

36. See discussion infra Part V. 37. See, e.g., Todd Wilkinson, Bushwacked, THE AMICUS J., Spring 2001, at 11. 38. Reaching Across the Rio Grande, N.Y. TIMES, Jan. 25, 2001, at A22. 39. See generally Sinclair, supranote 33. 40. See discussion infra Part III. 41. See generallyLUECKE, supra note 19, at iv. 42. See discussion infra Part V.B. 43. Id. 44. See CALFED Bay Delta Program, Annual Report 2001 64 (2002), available at http: //calfed.water.ca.gov/adobepdf/AnnualReport200 1IProgramManagement.pdf, ECOLOGY LAW QUARTERLY [Vol. 28:903

Compared to the high costs of these environmental mitigation projects, a Colorado Delta program is cost-effective. This paper issues a challenge to the Bush Administration to act on this opportunity. By taking on this challenge, the Administration can improve U.S. relations with Mexico and move towards reconciliation with its environmental critics, while preserving and restoring a remarkable region.

I

THE LAW OF THE RIVER The waters of the Colorado River are governed by the "Law of the River," an array of statutes, court decisions and decrees, contracts, interstate compacts, administrative regulations and rules, state laws, Mexican domestic laws, and international treaties generated by a century of ongoing disputes over the allocation of Colorado River water.45 It encompasses at least four different legal regimes: United States federal and state law, Mexican domestic law, and international law. We believe that some people consider the Law of the River to be a sort of sacred text. However, the reality is that much of the Law of the River consists of poorly drafted, vague and ambiguous documents. Indeed, the heart of the Law of the River is a simple five-page document known as the Colorado River Compact - a legal agreement shorter than a typical apartment lease. As we discuss below, the Law of the River has generated an extremely rigid system of water rights that purports to divide the entire flow of the Colorado - and then some - among the water interests in the U.S. and Mexico. It also places significant restrictions on the transfer of water away from existing uses. The result is a system that is highly prejudiced against "wasting" water on environmental concerns and the ecosystem of the Delta. This system becomes only more prejudicial to these concerns over time. As continued growth and development in the Colorado River Basin increase the pressure on water resources, the Law of the River allows entrenched water interests to resist the transfer of water to maintain environmental values. As we shall argue, given this growing pressure and the implications of

Catherine Lazaroff, Restoring the Everglades: An ENS Two Part Special Report: Part I (July 1, 1999), available at http://www.ens.lycos.com/ens/ju199/1999L-07-01- 0 l.html. 45. A collection of the major components of the Law of the River are reprinted In RAY L. WILBER & NoRTHcurrT ELY, THE HOOVER DAM DOCUMENTS (1948), and in MILTON N. NATHANSON, UPDATING THE HOOVER DAM DOCUMENTS (1978). 2002] THE LAST GREEN LAGOON recent developments on the Lower Colorado, what little remains of the Delta is now in serious jeopardy.

A. The ColoradoRiver Compact and the Mexican Water Treaty

The Colorado River Compact of 1922 is essentially a contract negotiated among the states of Arizona, California, Nevada, Wyoming, Colorado, Utah, and New Mexico, and ratified by Congress, apportioning the waters of the Colorado. 6 The Compact divided the U.S. portion of the Colorado River Basin into two sections, with the dividing line at Lee's Ferry, Arizona.4 7 The "Upper Basin" consists of Colorado, Wyoming, Utah, New Mexico, and a small section of Arizona, while California, the remainder of Arizona, and Nevada constitute the "Lower Basin."48 The Compact allocated to each Basin the right to an annual "beneficial consumptive use" of 7.5 million acre-feet (maf) of water, with the Lower Basin's share guaranteed by a requirement that the Upper Basin release a total of at least 75 maf over 10 years. 9 The Lower Basin has the right to an additional 1 maf per year beyond these initial allocations.50 The Compact also recognized "as a matter of international comity" that the United States could negotiate an allocation of water for Mexico.5" In 1944, the U.S. and Mexico signed a treaty ("the Mexico-U.S. Water Treaty") obligating the U.S. to deliver at least 1.5 maf per year to Mexico, absent "extraordinary drought

46. See Eric L. Garner & Michelle Ouelette, Future Shock? The Law of the Colorado River in the Twenty-First Century, 27 ARIZ. ST. L.J. 469, 470-471 (1995); see also NORRIS HUNDLEY, JR., WATER AND THE WEST: THE COLORADO RIVER COMPACT AND THE POLITICS OF WATER IN THE AMERICAN WEST (1975). 47. See The Colorado River Compact, 70 Cong. Rec. 324 (1928), at art. I. 48. See id.art. II, §§ (0)-(g). A small section of Arizona is in the Upper Basin; even smaller portions of Nevada and New Mexico are in the Lower Basin. 49. See iWLart. III, § (d). 50. See id. Art. III, § (b). While the wording of this provision Is vague, when it is read together with the Supreme Court's later decision in Arizona v. California, 373 U.S. 546 (1963), it is clear that this gives the Lower Basin the right to use the first 1.0 maf of surplus mainstream water passing Lee's Ferry. Arizona v. California decided that the Compact only allocated mainstream waters, leaving the Lower Basin states to regulate the total flow of their own tributaries: thus, this provision must apply to mainstream waters only. Consequently, after the Upper Basin uses its first 7.5 maf, it must allow the Lower Basin to use a full 8.5 maf of water before it can use more. 51. See id. art. III, § (c). 914 ECOLOGY LAW QUARTERLY [Vol. 28:903

5 2 Figure 2: The Colorado River Basin 1 ~

52. Figure courtesy of the U.S. Bureau of Reclamation, adapted by authors. 20021 THE LAST GREEN LAGOON or serious accident," and up to 1.7 maf in surplus years. 3 The Mexico-U.S. Water Treaty also established the Boundary and Water Commission (IBWC) to assist International 5 4 in the management of U.S. and Mexican transborder resources. Composed of a United States section (provided with foreign policy guidance by the U.S. Department of State) and a corresponding Mexican section, 5 IBWC is authorized to build and manage waterworks, to resolve problems and negotiate further agreements regarding international waters, and to settle treaty- interpretation disputes.5 " IBWC decisions, referred to as Minutes, are deemed approved by each country unless disapproved within 30 days after execution by the IBWC Commissioners. Under the Mexico-U.S. Water Treaty, IBWC has authority over the boundary delineation along the land boundary, the boundary sections of the Rio Grande and Colorado Rivers, the works located on their common boundary, and any project that lies entirely within either country if its construction or management will affect international treaty compliance.5 8 The Mexico-U.S.

53. Treaty Between the United States of America and Mexico Respecting Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, Feb. 3, 1944, U.S.-Mex., art. 10, 59 Stat. 1219, 1237 (1944) [hereinafter "Mexico-U.S. Water Treaty"], reprinted in Ray L. WILBUR & NORTHCUTr ELY, THE HOOVER DAM DOCUMENTS A831 (1948). Mexico currently uses its entire limit in order to supply the fast-growing cities of Tijuana and Mexicali and to irrigate more than 530,000 acres of land in the Mexicali Valley. See Douglas A. Hayes, The All-American Canal Lining Project: A Catalystfor Rational and Comprehensive GroundwaterManagement on the United States-Mexico Border, 31 NAT. RESOURCES J. 803, 808 (1991). As a result, virtually all water delivered over the border is diverted for human use; none remains to support the Delta ecosystem. Id. at 808. In addition, groundwater exhaustion in the northern Mexicali Valley is expected to worsen as a result of planned conservation measures along the All-American Canal, cutting seepage that replenishes groundwater supplies. See John H. Coglin, All-American Canal Project Sparks Test Case for TransboundaryGroundwater Law, 14 B.C. INT'L & COMP. L. REV. 159(1991). 54. The International Boundary and Water Commission (IBWC) descends from the older International Boundary Commission (IBC), which was established by treaty in 1889. See INTERNATIONAL BOUNDARY AND WATER COMMISSION, TWo COUNTRIES, THEIR BORDER AND THEIR WATERS 10-1 1(n.d.). The Mexico-U.S. Water Treaty transferred all of the IBC's powers to the IBWC, and expanded its jurisdiction. See generally Sinclair, supra note 33. The IBWC is composed of two national sections; the U.S. office receives foreign policy guidance from the State Department, and is headquartered in El Paso, Texas. See George R. Hesse, Securing Tangible Results of Self-Determination: A Scheme to Solicit Supportfrom the InternationalBoundary and Water Commissionfor Indigenous People's Water Rights Claims, 8 ARIZ. J. INT'L & COMp. L. 149, 152 (1991). 55. See Hesse, supra note 54, at 152. 56. See Mexico-U.S. Water Treaty, supra note 53, Art. 24, 59 Stat. at 1255-1257. 57. Id., art. 25, 59 Stat. at 1257-58. 58. See Sinclair, supra note 33, at 111- 112. ECOLOGY LAW QUARTERLY [Vol. 28:903

Water Treaty grants broad jurisdiction to IBWC to "plan, build, and manage water works; to enter into further agreements regarding international waters," 9 and to "settle all differences that may arise between the two governments with respect to the interpretation or application of this Treaty, subject to the approval of the two governments."' IBWC also inherited the powers of the older International Boundary Commission, created in 1889 to manage border disputes. 61 Thus, IBWC jurisdiction extends through the entire border region, taking in both dry lands and rivers, and includes not only water disputes but also "virtually any border-related issue."62 The Compact and the Mexico-U.S. Water Treaty's division of Colorado River water is responsible for the central problem of the Law of the River: it apportions more water than actually exists.63 The Compact and the Treaty allocate at least 17.5 maf. 4 When the Compact was signed in 1922, however, the annual flow of the river past Lee's Ferry was estimated at 16.8 maf, based on flows from 1896 to 1921;65 another study based on 1906 to 1921 flows computed the average at 18.1 maf.s6 In actuality, flows over the past 400 years (based on analysis of tree rings) averaged only 67 13.5 maf.

59. See id. at 111 (citations omitted). 60. See Mexico-U.S. Water Treaty, supra note 53, Art. 24(d). IBWC's jurisdiction under the Mexico-U.S. Water Treaty consists of three distinct categories: its "adjudicatory functions," its "administrative functions," and its "investigative functions." Hesse, supra note 54, at 154. "Through its adjudicative powers, the IBWC can call and question witnesses and bring actions in the courts of the United States and Mexico. Through its administrative powers, the IBWC can undertake construction projects needed to carry out agreements. Through its investigative duties, the IBWC can engage in activities such as collecting information, measuring consumption and loss, and assessing the reserves of surface water available to each country." I&. 6 1. See Sinclair, supra note 33. at 111. 62. Hesse, supranote 54, at 153-154. 63. This is not an unusual characteristic of Western water law. The prior appropriation system that dominates in the West permits legal rights to more water than there is water in a in any given year. See JOSEPH L. SAX ET AL., LEGAL CONTROL OF WATER RESOURCES 105-108 (3rd ed. 2000). 64. See generally Mexico-U.S. Water Treaty, supra note 53; Colorado River Compact, supra note 47. 65. See FRADKIN, supra note 9, at 188. The Reclamation Service later became the Bureau of Reclamation. 66. See Garner, supra note 46, at 472. 67. See CHARLES W. STOCKTON & GORDON C. JACOBY, JR., LONG-TERM SURFACE- WATER SUPPLY AND STREAMFLOW TRENDS IN THE UPPER COLORADO RIVER BASIN 38 (1976) (Lake Powell Research Project Bulletin No. 18). 2002] THE LAST GREEN LAGOON

1. The Upper Basin The states of the Upper Basin divided their share of river water in the Upper Colorado River Basin Compact of 1948.1 Under this agreement, each state receives a specific share of the 7.5 maf allotted to the Upper Basin: Colorado, 51.75%; New Mexico, 11.25%; Utah, 23%; Wyoming, 14%; and Arizona, 50,000 acre-feet.6 9 While the Compact divides the water among the States, state law regulates the quantity and priority of individual appropriations within each Upper Basin state, largely under a prior appropriation system.7 ° With a smaller population and fewer large irrigation projects than the Lower Basin, the Upper Basin has never used its full apportionment under the 1922 Compact. As of 2000, the entire Upper Basin used approximately 4.8 maf of its total 7.5 maf allocation;7 1 this use, however, is rapidly increasing. Recent projections suggest that total Upper Basin use will increase by approximately 700,000 af by 2025.72 The Upper Basin's Compact delivery obligations to the Lower Basin and Mexico 73 are controlled by the Colorado River "Long Range Operating Criteria," developed by the Secretary of the Interior (Secretary) pursuant to the 1968 Colorado River Basin Project Act. 74 The Operating Criteria specify required release volumes and the factors to be considered when deviating from them in times of surplus or shortage on the River.7" Under the

68. See Warren J. Abbott, California Colorado River Issues, 19 PAC. L.J. 1391, 1397 (1988). 69. See PON'IUS, supra note 3, at 15. Arizona's portion is a fixed volume rather than a percentage. 70. All of the Basin States subscribe in one form or another to the familiar common law doctrine of prior appropriation, see SAX ET AL., supra note 63, at I 11, which allocates surface water on a 'first in time, first in right' basis to whomever first puts it to a beneficial use. Once appropriated, the water right takes on the status of a property right, but with special limitations. For an excellent discussion of the prior appropriation system. See iL at 98-208. 71. UNITED STATES DEPARTMENT OF THE INTERIOR, FINAL ENVIRONMENTAL IMPACT STATEMENT, COLORADO RIVER SURPLUS CRITERIA K-I, Attachment K (2000), available at http://www.lc.usbr.gov [hereinafter "FINAL EIS"]. Of the Upper Basin states, Colorado retains the largest share of unused water; in 2002, Colorado is projected to consume only 2.4 maf of its 3.3 maf share. 72. See FINAL EIS, supra note 71, Attachment K at 2, Table K-1 (difference between projected Upper Basin use in 2002 and 2025 is around 700,000 af.). 73. The Upper Basin's deliveries of Colorado River water to the Lower Basin and Mexico come from releases from Glen Canyon Dam, which serves as the Upper Basin's storage reservoir. See FRADKIN, supra note 9, at 194. 74. Colorado River Operating Criteria, 35 Fed. Reg. 8,951 (Dep't Interior, June 4, 1970). 75. See id. ECOLOGY LAW QUARTERLY [Vol. 28:903

Operating Criteria, the annual target release at Glen Canyon is 8.23 maf, 6 and the Secretary can only exceed this volume under "surplus" or flood conditions that justify the release of additional water into the Lower Basin." Under the authority of the Operating Criteria, the Secretary issues an Annual Operating Plan (AOP) that guides reservoir operations each year.7" The AOP also determines whether hydrologic and other conditions justify a shortage, surplus, or normal flow determination for the year. As discussed below,79 the power to determine whether "surplus" or "shortage" conditions exist each year has transformed the Secretary into a major player among the water interests on the Colorado.

2. The Lower Basin Federal law primarily governs water allocation within the Lower Basin.80 The 1928 Boulder Canyon Project Act 8 ' (BCPA) authorized the construction of Hoover Dam and the All-American Canal, beginning an era of massive federal water projects that transformed the Colorado into its present, highly controlled state. 2 The BCPA also authorized the Lower Basin states to enter into a compact to apportion Lower Basin water, and required California to limit its right to Colorado River water to 4.4 maf, plus / of any surplus."

76. Id. 77. David J. Guy, When The Law Dulls the Edge of Chance: Transferring Upper Basin Water to the Lower Colorado River Basin, 1991 UTAH L. REV. 25, 43 (1991) ("First, the active storage in Lake Mead must be less than the amount of active storage in Lake Powell. Second, the Lower Basin must have a beneficial consumptive use for the excess water. Finally, the Secretary must find that the release will not impair Upper Basin uses and that Lake Powell storage is not 'reasonably necessary' to meet the delivery requirements under the Colorado River Compact [and the Treaty of 19441.") 78. Id. at 43-44. 79. See discussion infra Part W.C. 80. See discussion of the various federal statutes and regulations that govern the Lower Colorado, infra. Under the Supremacy Clause, the states may regulate the used water only to the extent that such regulation is not inconsistent with federal law. See U.S. Const. Art. VI. 81. See Boulder Canyon Project Act, 45 Stat. 1057 (1928), 43 U.S.C. § 617 (1928) [hereinafter "BCPA"], reprinted in RAY L. WILBUR & NoRTHCUTr ELY, TIE HOOVER DAM DOCUMENTS A213 (1948). 82. See REISNER, supra note 1, at 120-144, 255-305. 83. See Abbott, supra note 68, at 1400-01. The California legislature agreed to this limitation in the 1929 California Limitation Act, Cal. Stat. 16 §1. However, due to its use of "surplus" Colorado River water (the unused apportionments of other states and excess flows), California has consistently used closer to 5.2 maf each year. See PoN'nuS, supra note 3, at 13. 20021 THE LAST GREEN LAGOON

Prior to the BCPA, state law governed water allocations, even when Bureau of Reclamation (BOR) irrigation projects were involved. s' The BCPA, however, provided that "[no person shall have or be entitled to have the use for any purpose of the water... except by contract [with the Secretary]." 5 The BCPA authorized the Secretary to enter into permanent water delivery contracts with users in the Lower Basin, up to the limit of each state's apportionment.8 6 The BCPA also authorized the Secretary to contract for the delivery of surplus water or the unused apportionments of other states. 7 However, the broad control given to the Secretary by the BCPA made it unclear whether state law still controlled water allocation on the Lower Colorado. 8 As a result, the Lower Basin states continued to dispute the allocation of the river and never entered into the compact authorized by the BCPA.89 Ongoing conflict between Arizona and California over their respective shares of the river eventually led to the U.S. Supreme Court's monumental 1963 decision in Arizona v. Califomia.90 In Arizona v. California, the Court held that the BCPA subjected the mainstream Colorado River below Lee's Ferry to federal control, largely preempting state control over water allocation.9 With the exception of pre-1929 water rights recognized under state law, the Court enjoined future deliveries of Lower Basin water by any means other than a federal water delivery contract.92 Although the BCPA did not explicitly limit the states to the allotments authorized, the Court, quite remarkably, determined that Congress "intended to and did create its own comprehensive scheme for the apportionment among California, Arizona, and Nevada of the Lower Basin's share of the Colorado

84. Reclamation Act of 1902, 32 Stat. 388, 390 (1902) (codified as amended at 43 U.S.C. § 383 (1986)). Section 8 of the Reclamation Act of 1902 required BOR to comply with state law in the appropriation of water for federal projects. IdL 85. BCPA, supranote 81, § 5. 86. BCPA, supra note 81, § 10. Typically, the contracting bodies are entities like irrigation districts (IDs), such as the Imperial Irrigation District (lID), or water utilities, such as the Metropolitan Water District (MWD). In turn, individual users get their water by contract with these larger entities. See Benson, supra note 80, at 366, 384-85. 87. See McClurg, supra note 12, at 6. 88. BCPA, supra note 81, § 14. BCPA gives the Secretary broad powers to regulate the river, sign contracts, etc. Since inconsistent state law is superceded by federal law, these broad powers made it unclear if state control would be inconsistent with the Secretary's authority. 89. See Arizona v. California, 373 U.S. 546. 562 (1963). 90. Id. 91. See id.at 587. 92. See id at 588. ECOLOGY LAW QUARTERLY [Vol. 28:903

River."9 3 As interpreted by the Court, the BCPA allocated Arizona 2.8 maf; California 4.4 maf; and Nevada 0.3 maf. 9' The Court also found that the Act only allocated mainstream waters; each Lower Basin state retained the right to allocate the total flow of its own tributaries.9 5 This ruling allowed Arizona to keep the entire flow of the Gila River in addition to its 2.8 maf allocation.9 6 Moreover, the Court held that Section 6 of the BCPA grandfathered in pre-1929 state and federal water rights along the Colorado under the category of "present perfected rights."7 These rights enjoy the most senior priority; in the event of shortage, the Secretary has discretion to apportion the available water to other Colorado users only after satisfying these pre- 1929 rights.98 These perfected rights also include the reserved rights of the five Lower Colorado River Tribes. The Court found that 917,552 acre-feet of Lower Basin water was reserved for use by the Chemehuevi, Cocopah, Yuma, Colorado River, and Fort Mojave reservations. 99 Arizona v. Californiathus created a large allocation of water that is essentially immune from shortages on the Lower Colorado. For instance, the Imperial Irrigation District (lID) currently has a right to 2.6 maf (out of total delivery rights to 3.3 mal), or the amount necessary to irrigate 424,145 acres, whichever is less. ' As a result, while LID would face some cuts in usage during a severe shortage, lID can continue to irrigate even when Los Angeles, Las Vegas, Phoenix, and San Diego receive no water. Congress further refined this priority system in the Colorado River Basin Project Act of 1968 (CRBPA).' ° ' This legislation authorized the Central Arizona Project (CAP), fulfilling Arizona's long-standing desire to use some of its allocation in the central part of the state." 2 To gain California's support for the bill,

93. See id. at 564-565. 94. See id. at 573. In the event of the availability of a surplus of water, the court initially allocated 50% of any surplus to California, and 50% to Arizona. Id. By later decree, the Court modified this structure to allow a 4% share of any surplus for Nevada, to be taken from Arizona's 50% share. See Arizona v. California, 376 U.S. 340, 342 (1964). 95. See Arizona, 373 U.S. at 567-569. 96. See id. at 567-569. 97. See Arizona, 376 U.S. at 341. 98. See icl.at 342. 99. See generally Arizona v. California, 466 U.S. 144 (1984). 100. See Arizona v. California, 439 U.S. 419, 429 (1979). 101. Colorado River Basin Project Act of 1968 (CRBPA), 43 U.S.C. §§ 1501-56 (1968). 102. See icl. 2002] THE LAST GREEN LAGOON however, Arizona had to guarantee that California could take its full share before any water was delivered to CAP. 10 3 As a result, CAP has historically had the lowest priority allocation - after California, Nevada, present perfected rights, and the Tribes."°4 This problem has been solved - at least temporarily - by the execution of a contract between the State of Arizona and MWD. l 5 As discussed in Section IV below, in exchange for Arizona's support of the new Interim Surplus Criteria, MWD was forced to provide Arizona with a 1 maf "insurance policy" under which it will forego its own use in favor of Arizona in the event of shortages on the river.'06 However, after the expiration of this agreement, CAP water will again be the first on the chopping block. As a result, CAP's long term reliability as a supply of water may shrink as demands on Upper Basin water grow. While BOR predicted an average annual delivery of 1.2 maf over the life of CAP, critics estimate it will fall as development upstream reduces surpluses. '

B. Keeping the Status Quo: Restrictions on Transfers in the Law of the River

Although transfers of water from one user to another, particularly market-based transfers, would have allowed the water of the Colorado to migrate over time to higher economic value uses, the politics surrounding the Law of the River have long been dominated by efforts to block such transfers. In fact, the development of the Law of the River has been driven largely by fear. The 1922 Compact negotiations began in response to Upper Basin states' fears that Lower Basin states, particularly California, would eventually acquire rights to the entire flow of the Colorado, leaving the Upper Basin with inadequate water for future economic development. '0 Similar fears drove subsequent

103. See Abbott, supra note 68, at 1408. 104. See Robert J. Glennon, Coattails of the Past: Using and Financing the Central Arizona Project, 27 ARIZ. ST. L.J. 677, 711-15 (1995). 105. See discussion infra Part IV. 106. See discussion infra Part IV. 107. See FRADKIN, supra note 9, at 259. Arizona can argue that the Colorado River Compact requires the Upper Basin to release 75 mat every 10 years. See Glennon, supra note 104. at 711-712. However, although the Upper Basin is obligated to deliver at least 75 maf to the Lower Basin every 10 years, under Article 111(c) of the Compact, the Upper and Lower Basins may share the obligation to deliver Mexico's entitlement equally if surplus water is not available to satisfy the demand. See Colorado River Compact, supra note 47, article III(c),(d). 108. See Sergio J. Viscoli, The Resource Conservation Group Proposal to Lease Colorado River Water, 31 NAT. RESOURCES J. 887, 892 (1991). ECOLOGY LAW QUARTERLY [Vol. 28:903 agreements, litigation, and settlements as every state, water district, irrigator, and municipality nervously eyed others who sought to increase their water appropriations. 109 Consistent with these fears, the Law of the River contains numerous provisions that block transfers of water within the Colorado system and serve to keep the initial, historic allocations intact. Although a full account of these legal restrictions is beyond the scope of this article, this section provides an overview of the relevant rules. "o The first set of these restrictions derives from the traditional notion of beneficial use that appears throughout the Law of the River. Article I of the 1922 Compact establishes the "relative importance of different beneficial uses of water.""' While "beneficial use" is not defined," 2 a definition may be implied from Article 111(e), which provides: "Ithe states of the Upper Division shall not withhold water, and the states of the Lower Division shall not require the delivery of water, which cannot reasonably be applied to domestic and agricultural uses."" 3 "Domestic use" is defined, however, and includes: "the use of water for household, stock, municipal, mining, milling, industrial and other like purposes....114 The Compact does not protect instream flows or use of water for the benefit of fish and wildlife as beneficial uses. Because Compact parties only have the right to "beneficial use" of water," 5 the transfer of water by any party for an environmental use clearly violates the rights of the other parties to the Compact. Political resistance could pose yet another obstacle, particularly for transfers from the Upper Basin. Upper Basin states fear that allowing downstream users to purchase, or even lease, water rights will rob them of water needed for future development." 6 Strange as it may seem, Lower Basin states also

109. The conflict that led, ultimately, to Arizona v. California 373 U.S. 546 (1963), provides an excellent example of the effects of such fears. 110. It should suffice to say that various provisions of the 1922 Compact, the Upper Basin Compact, the Operating Criteria, the BCPA, the Treaty of 1944, and Arizona v. California restrict transfers between and within the Upper Basin, Lower Basin, and Mexico. Additional contractual restrictions may also apply, such as California's Seven Party Agreement and the recent Quantification Agreement. See infra Part I.C. 111. See Colorado River Compact, supra note 47, art. I. 112. Seeic art. II. 113. See id.art ll(e). 114. See id.art II(h). 115. Seeid. art. 1. 116. RICHARD W. WAHL, MARKETS FOR FEDERAL WATER: SUBSIDIES, PROPERTY RIGHTS, AND THE BUREAU OF RECLAMATION 279 (1989). 2002] THE LAST GREEN LAGOON oppose transfers from the Upper Basin," 7 even though the Lower Basin needs all the water it can get. This seemingly inexplicable position results from the fact that the Upper Basin has never used its full apportionment. 118 Because water not consumed in the Upper Basin automatically flows to the Lower Basin, Lower Basin states resist allowing the Upper Basin to sell surplus water the Lower Basin presently uses for free."19 Numerous practical considerations also operate to effectively block transfers of water from some areas. California, for example, is a virtual black hole when it comes to water; even the latest agreement relies on artificial surplus declarations to assure minimum municipal supplies. 2 ' A prospective supplicant for water would have to outbid the municipalities for it - an unrealistic scenario. MWD, for example, is already investing more than $118 million in IID water conservation projects; including operational costs, the 106,000 af gained as a result will cost an estimated $128 per acre-foot. 2 ' Moreover, transfers out of the Imperial Valley region - the largest user of Colorado River water in California - would only exacerbate the critical environmental problems in the Salton Sea, which needs an influx of to dilute the concentrated brine (already 25 to 30% saltier than the ocean) of salt, toxics, fertilizer, and pesticides 22 that has resulted from evaporation and decreased inflows. Transfers from BOR irrigation projects, which are the largest users of water on the Colorado, may face additional restrictions unique to reclamation law. These restrictions include: provisions

117. Seeid.at280. 118. See generally FINAL EIS, supra note 71. 119. See WAHL, supra note 116, at 280. The ill-fated "Galloway Proposal," which, if it overcame the many anti-transfer provisions noted above, was to have leased 300,000 af of Colorado State's river water to San Diego, is instructive in this regard. While the proposal would have benefited millions of Southern California consumers, it was opposed by virtually all of the Basin states - including California itself. Even former Arizona Governor Bruce Babbitt (now a strong proponent of transfers) was unconditionally opposed, threatening to sue the San Diego water authority if the transfer was attempted. 120. See discussion infra Part V.D. 12 1. See SAX ET AL., supra note 63, at 192. Purchasing from the largest sources of agricultural water. lID and CVWD, could also be unpopular with Mexico, whose support will be needed for a successful Delta transfer. The MVD/lID transfer agreement, which will line the All-American canal, is facing challenges by Mexican groundwater irrigators, who have for many years tapped as much as 100,000 acre- feet of seepage from the canal. Perhaps as many as 700 wells will be cut off by the conservation measures. See also Albert Utton, The Transfer of Water from an InternationalBorder Region: A Tale of Six Cities and the Al-American Canal, 16 N.C. J. INT'L L. & COM. REG. 477, 478-479 (199 1]. 122. See McClurg, supra note 12, at 11. ECOLOGY LAW QUARTERLY [Vol. 28:903 of project-authorizing legislation, the various water delivery contracts between BOR, irrigation districts, and individual water users, as well as district charters, bylaws, and regulations of districts under state law.'23 At the very least, many of these instruments give the Secretary of the Interior a vast, discretionary veto power over water transfers.'24 The transferability of Indian reserved rights, which represent another major portion of Colorado River water, remains unresolved.'25 The Non-Intercourse Act clearly limits the ability of non-Indians to obtain rights to Indian water without congressional approval,'26 and neither Supreme Court decisions nor federal laws have recognized a general tribal authority to convey water off-reservation.'27 While many water rights settlements have included provisions that authorize the sale or lease of water for off-reservation use,' 28 even limited marketing of tribal water is politically controversial. The most strenuous opposition occurs over proposals that would allow tribes to market unexercised Colorado River rights because tribes would 29 be selling water that other users currently get for free. Regardless, Indian water rights are subject to the Law of the River; as a result, even if water can be transferred for use off- reservation, it is subject to the same limitations as water from 30 any other source in the Basin states. 1 Another source of controversy regarding transferability of water rights involves the interpretation of the U.S. Supreme

123. See PETER W. CULP, FEASIBILITY OF PURCHASE AND TRANSFER OF WATER FOR INSTREAM FLOW IN THE COLORADO RIVER DELTA, MEXICO, 3 (2001). 124. See generally Robert Roos-Collins, Voluntary Conveyance of the Right to Receive a Water Supply from the United States Bureau of Reclamation, 13 ECOLOGY L.Q. 773 (1987). 125. See Wyoming v. United States, Justice O'Connor unpublished majority opinion, at 12 [No. 88-309]; NATIONAL RESEARCH COUNCIL, supra note 70, at 95. See also Andrew Mergen & Silva Liu, A Misplaced Sensitivity: The Draft Opinions in Wyoming v. United States, 68 U. Colo. L. Rev. 683 (1997). 126. See SAX ET AL., supranote 63, at 846. 127. See DAVID H. GETCHES ET AL., CASES AND MATERIALS ON FEDERAL INDIAN LAW 853 (4h ed. 1998). Many commentators, however, argue that the Non-Intercourse Act would operate to prohibit a lease of water off-reservation. Id. 128. Deborah Moore & Zach Wiley, Water in the American West: Institutional Evolution and Environmental Restoration in the 21st Century, 62 U. COLO. L. REV. 775, 791-792 (1991). 129. See GETCHES, supra note 127, at 802. 130. While some tribes have argued that they are not subject to the Law of the River, see Abbott, supra note 68, at 1429, the argument for this position is unlikely to succeed. The United States has a long-recognized ability to bind the Indian tribes by virtue of its status as a trustee of Indian interests; as a result, the Supreme Court decisions, federal laws, and regulations that control the river are binding on the Indian tribes as completely as they are on the United States. See id. at 1430. 2002] THE LAST GREEN LAGOON

Court's decree in Arizona v. California,' which may be read to require that water used by the tribes count against the states in which the reservations are located. 132 Section II(B)(4) of the decree provides: "Any mainstream water consumptively used within a State shall be charged to its apportionment, regardless of the purpose for which it was released. . .".1'1 This is of particular concern to Arizona, where the Colorado River Indian Tribes have rights to over 900,000 af of water. Until recently, Arizona relied on § II(B)(4) to insist that neither California nor Nevada could obtain rights to tribal water without that water being counted against California and Nevada's apportionments." 4 Since Arizona has created the Arizona Water Bank,3 5 the state has had a change of heart. Arizona now prefers to rely on § II(B)(6), which allows the Secretary of the Interior to release the unused water for consumptive use in other states when a state will not consume all of its apportionment in one year. 136 The viability of the Arizona Water Bank, as well as the potential for interstate marketing of tribal water rights, may depend on resolving the apparent collision between §§ II(B)(4) and II(B)(6) in the Supreme Court's decree. These and other restrictions reveal that the circumstances surrounding the Colorado River are enormously complex. The Law of the River has evolved into an incredibly rigid structure of water rights and entitlements. This structure has survived despite droughts, legal and political challenges, and nearly a century of dramatic economic and social change. The inflexibility of this system is also the source of growing tension, as the historical context that created it is replaced by dynamic contemporary conditions reflecting new needs, desires, and social, environmental, and economic priorities.

131. See Arizona, 376 U.S. 340. 132. See Glennon, supra note 104, at 714. 133. See Arizona, 376 U.S. at 343. 134. See Glennon. supra note 104, at 703, 705. 135. In 1996, the Arizona Legislature established the Arizona Water Bank in order to utilize Arizona's share of Colorado River water. See ARiz. REV. STAT. ANN. § 45- 2401-72 (West Supp. 2001). The bank will store excess water in Arizona aquifers and lease excess water to Nevada and California. See Margaret Bushman LaBianca, The Arizona Water Bank and the Law of the River, 40 ARIz. L. REv. 659, 671-673 (1998). In July 2001, the Arizona Water Banking Authority entered into an agreement with the Southern Nevada Water Authority to allow Nevada to use a portion of Arizona's Colorado River allocation. See Agreement for Interstate Water Banking Signed, AWBA NEWSLETTER (Arizona Water Banking Authority, Phoenix. Ariz.). No. 7, August 2001. at 1 [hereinafter Agreement]. 136. See generally Glennon, supra note 104. ECOLOGY LAW QUARTERLY [Vol. 28:903

II

INCREASING DEMANDS ON THE COLORADO RIVER

A. Population Growth and GroundwaterOverdraft

As the demands on the Colorado River increase, it will become more difficult to secure flows for the Delta. Two critical pressures on the water of the Colorado River are population growth and the chronic overdraft of groundwater. In the Lower Basin alone, more than 23 million people currently rely on the Colorado for their water supplies.13 7 However, by 2025, California alone is projected to grow by 16 million people, and the population of areas served by Colorado River water in Arizona and Nevada is expected to double.38 To make matters worse, much of this population currently relies on groundwater, which is in a state of overdraft throughout the region. 139 Arizona, for example, has "witnessed an exponential increase in groundwater withdrawals," 140 with withdrawals exceeding recharge by more than 2.5 maf,"l and a trend towards higher per-capita use of water. 142 In Southern Nevada, the exponential growth of the Las Vegas metropolitan area has caused demand for water that far outstrips projected supplies. 43 To avoid the inevitable exhaustion of groundwater, the Southern Nevada Water Authority has filed for rights to more

137. See JASON I. MORRISON ET AL., THE SUSTAINABLE USE OF WATER IN THE LOWER COLORADO RIVER BASIN 10 (1996). 138. See PONTs, supra note 3, at 27. 139. See MORRISON ET AL., supra note 137. 140. Robert J. Glennon & Thomas Maddock, III, In Search of SubJlow: Arizona's Futile Effort to Separate Groundwaterfrom Surface Water, 36 ARiz. L. REV. 567, 592 (1994). 141. Colorado River Water Users Association, Arizona at a Glance: Colorado River Profile (200 1), at http: //crwua.mwd.dst.ca.us/az/crwua-az.htm. 142. Dan Tarlock & Sarah B. Van de Wetering, Growth Management and Western Water Law From Urban Oases to , 5 HASTINGS W.-N.W. J. ENVTL. L. & POL'Y 163, 169 (1999). Arizona alone has taken the first steps, recently passing the nation's first comprehensive groundwater law; however, to make the Groundwater Management Act politically palatable, the Act grandfathered in existing rights. Since withdrawals were already in excess of recharge, there is thus little hope that the Act will achieve its goal of "safe yield," even in heavily regulated areas. See generally Robert J. Glennon, "BecauseThat's Where the Water Is": Retiring Water Uses to Achieve the Safe-Yield Objective of the Arizona Groundwater Management Ac 33 ARIz. L. REv. 89 (1991). Regardless, Arizona's population, like others relying on mining groundwater, will eventually be forced to either reduce its overall water use, increase its use of surface water, or (most likely) both. See MORRISON, supranote 137, at 26. 143. See Mike Davis, Las Vegas Versus Nature, in REOPENING THE AMERICAN WEST 55 (Hal K. Rothman ed., 1998). Groundwater pumping in the Las Vegas area has led to noticeable in the city center. Id. 20021 THE LAST GREEN LAGOON than 800,000 af of groundwater and surface water across the southern part of the state.144 As the Lower Basin states come to grips with the fact that current levels of groundwater pumping are unsustainable, the search for alternative supplies will necessarily include the Colorado. California's situation is even more troubling. While California receives 4.4 maf of Colorado River water in normal years, its 4 historic use has exceeded 5 maf,1 ' and though irrigation currently consumes much of this water, municipal demand is increasing dramatically.1 46 Due to the relentless growth of Southern California, the Metropolitan Water District (MWD), which serves the greatest part of Southern California's population, could face a 2.1 maf annual water shortfall by 2020.147 Increasing water demands in the Lower Basin states have been assuaged in part by the fact that the Upper Basin has never used its full apportionment and, as a consequence, adequate surplus flows have continued to reach the Lower Basin. Growth in the Upper Basin, however, will eventually cause these surplus flows to disappear. While the Upper Basin currently uses approximately 4.8 maf of its 7.5 maf apportionment, this use is projected to increase by nearly 1.1 maf by 2050.14 These increased levels of Upper Basin water use will virtually eliminate 1 49 surplus flows in the Lower Basin in normal to dry years.

B. Increasing the Pressure:Indian Reserved Rights Indian reserved rights represent another growing source of pressure on Colorado River water resources. The U.S. Supreme Court first developed the federal reserved rights doctrine in Winters v. United States.5 ' In Winters, the Court held that when the federal government created a reservation, it impliedly reserved enough water to "fulfill the purposes for which the reservation was made,"' 5 ' with a priority date as of the

144. See id. at 56. 145. See PoTIUS, supra note 3, at 26. 146. See id. at 29. 147. See id. 148. See FINAL EIS, supra note 71, at Attachment K, Table K- 1 (the difference between projected 2002 water use and 2050 water use is nearly 1. 1 mal). 149. Additionally, most studies predict that global climate change will increase annual flow variations, increase evaporation, and reduce the overall amount of water in the Colorado. See Sue McClurg, Climate Change and Water: What Might the Future Hold, WESTERN WATER, May-June 1998, at 9. 150. See Winters v. United States, 207 U.S. 564 (1908). 151. See SAX ET AL., supra note 63, at 782. ECOLOGY LAW QUARTERLY [Vol. 28:903 reservation's establishment. In practical terms, this means that tribal water rights are senior to most users on the river. 5 2 Historically, the Lower Basin tribes have not used their full apportionment, largely due to a lack of funding for tribal water development. Between 1987 and 1993, the tribes diverted only 769,360 af per year for irrigation, out of a total allotment of 917,552 af.5 Most of this use occurred on the Colorado River Indian Reservation (located along the boundary between Arizona and California."54 Most of this tribal water is currently used by non-Indian farmers who lease tribal lands.' Increasing support for tribal sovereignty and self- determination, coupled with the desire of other water users to quantify reserved rights (and thus decrease the uncertainty associated with them) are changing tribal water rights from theoretical "paper rights" into real, "wet" water in the form of tangible water projects and economic development. In 1992, ten tribes in the Upper and Lower Basins formed the Colorado River Basin Ten Tribes Partnership to develop tribal resources and to expand tribal water rights for on-reservation use.' The Partnership is also seeking opportunities to market tribal water off-reservation to assist on-reservation economic development while alleviating Lower Basin shortages.15 7 Due to this effort and other economic development programs, tribal water use is expected to increase significantly in the Lower Basin over the next few decades. By 2050, tribal consumptive use (withdrawals minus return flows) is expected to reach 1.3 maf - up from .763 maf in 2000.158 These changes are significantly affecting water allocation throughout the Colorado River Basin. In Arizona, for example, a recent settlement between BOR and the Central Arizona Water Conservation District (CAWCD) would exchange tribal rights to surface water for delivery rights to Central Arizona Project (CAP) water.159 If approved, the related settlement legislation now pending before Congress would satisfy the claims of the Gila

152. See Abbott, supra note 68. at 1426. 153. See Garner & Ouelette, supra note 46, at 496. 154. See id. 155. Peter W. Sly, Urban and Interstate Perspectives on Off-Reservation Tribal Water Leases. 10-WTR NAT. RESOURCES & ENV'T 43, 46 (1996]. 156. See Garner & Ouellette, supra note 46, at 496. 157. See icL 158. See FINAL EIS, supra note 71, at Attachment Q. 159. Secretary of the Interior Bruce Babbitt, Remarks at the Colorado River Water Users Association Meeting (Dec. 14, 2000), available at http://crwua.mwd.dst.ca.us/news/babbitt2000.htm. 2002] THE LAST GREEN LAGOON

River Indian Community, the Tohono O'odham Nation, and the San Carlos Apache Tribe, as well as provide water for settlement of future tribal claims."m The bill would dedicate nearly half of all CAP water for tribal use, and provide funding for tribal water development. 6 ' In addition, on the mainstream, the Quechan Indian Tribe is pursuing a land claim proceeding that could wrest some 78,000 af of water from its current California users.'6 2 The Department of the Interior (DOI) also recently completed a settlement with the San Luis Rey Band, providing them with a portion of the water conserved from lining the All- American Canal. 63 In the Upper Basin, a number of Indian water rights claims have also recently settled and tribal consumptive use is expected to more than double by 2050 - from .35 maf in 2000 to .71 maf.''Final amendments to the Ute Tribes Settlement Act are currently pending before Congress, and in the past year, Congress also approved a small settlement with the Shivwits 6 5 Tribe in Utah.' With recognized rights to a sizeable fraction of the total water in the system, tribal claims have the potential to significantly alter the distribution of water - a result that not all water users oppose. Some municipal users support tribal water marketing claims, hoping for an increase in municipal access to water 66 previously dedicated to irrigation.

160. See id. 161. See id. 162. See also Laurie Asseo, Tribe Gets Chance to Prove Water Claim, THE ORANGE COUNTY REG., June 20, 2000, at A5. See generally Arizona v. California, 530 U.S. 392 (2000). 163. See Babbitt, supra note 159. 164. See FINAL EIS, supra note 71, at Attachment Q. 165. See Babbitt, supra note 159. 166. An excellent example is the aforementioned CAP settlement that is now pending before Congress. See supra text accompanying note 160. Perhaps the most intriguing aspect of the Settlements Act is that it authorizes the reimbursement money paid annually by CAWCD to be deposited into the Lower Colorado River Basin Development Fund. See § 108. These funds may be used "without further appropriation" to pay the costs associated with delivering CAP water to the tribes, to fund the settlement with the Gila River Indian Community, and to construct distribution systems in order for tribes to receive CAP water. Id. This arrangement, if approved by Congress, would provide the infrastructure so that the tribes could use CAP water. It also provides self-funding for these projects. Over the next several decades, hundreds of millions of dollars would flow to the fund to be spent without annual congressional appropriations. While the settlement purports to give nearly half of all CAP water to the tribes, much of this water may not remain in tribal hands for long. Instead, it would be sold hack to non-Indian water users. The settlement legislation thus closely resembles a sort of shell game - the effect of which will be to pass much of the CAP user cost of the $4 billion project back to the federal ECOLOGY LAW QUARTERLY [Vol. 28:903

C. The Growing Salinity Problem

The growing salinity problem on the Colorado is a direct result of the increasing pressure on Colorado River water resources, and is likely to play a critical role in shaping the future use of the Colorado. At its source in the Wind River Range in Wyoming, the river's salinity is less than 50 parts per million (ppm);67 by the time this water reaches Imperial Dam, however, salinity levels can exceed 879 ppm.'" These concentrations of salt damage waterworks, cause corrosion in plumbing and municipal delivery systems, increase construction and maintenance costs, compromise water quality, and complicate attempts to conserve water through the reuse of effluent and agricultural wastewater.'6 9 Salinity also progressively decreases crop yields and affects soil structure.1 7 0 To prevent salt buildup, farmers must apply excess amounts of water to leach out accumulated salts, creating yet another pressure on already scarce water resources.' 7 ' This additional water usage in turn requires increased fertilizer use, which further increases the cost of farming.'7 2 High salinity levels may force farmers to switch to lower value, salt-tolerant crops.' 7' According to a BOR study, a 1

government (even though the project is already enormously subsidized). See Glennon. supra note 104, at 743-55. By providing almost half of all CAP water to the tribes, the federal government (as tribal trustee) will be responsible for the entire cost of this water. If the tribes chose to sell or lease their rights to CAP water to Arizona's municipal interests (and § 206(e) of the Settlements Act precludes the Gila River Indian Community from transferring its CAP water for use outside Arizona), the shell game will be complete. The federal government will have built the State of Arizona a $4 billion project, but demanded less than $2 billion in repayment. Then, the federal government will purchase almost one half of the water that flows through the CAP for Indian tribes in Arizona. In so doing, much of the repayment money will be given back to CAWCD (through the Lower Colorado River Basin Development Fund). In the end, Arizona cities are likely to contract with the tribes for a large quantity of low- cost, heavily subsidized CAP water. 167. See ALAN P. KLEINMAN & F. BRUCE BROWN, COLORADO RIVER SALINITY: ECONOMIC IMPACTS ON AGRICULTURAL, MUNICIPAL, AND INDUSTRIAL USERS, UNITED STATES DEPARTMENT OF THE INTERIOR, WATER AND POWER RESOURCES SERVICE 1 (1980). Salt concentrations are typically measured in parts per million. A salinity increase of one part per million is equivalent to adding 1 milligram of salts to 1 liter of water. 168. See PONTIUS, supra note 3, at 63. In contrast, the salt concentration of "typical" seawater is around 34,420 ppm. See Key DesalinationFacts, in SUSAN E. PANTELL, SEAWATER DESALINATION IN CALIFORNIA (California Coastal Commission 1993), available at http://www.coastal.ca.gov. 169. See PONTIUS, supra note 3, at 67. 170. See KLEINMAN & BROWN, supra note 167, at 3. 171. See generally James P. Law & Arthur G. Hornsby, The Colorado River Salinity Problem, 6 WATER SUPPLY & MGMT. 87, 91-99 (1982). 172. See KLEINMAN. supra note 167, at 3. 173. See PONTIUS, supra note 3, at 67. 2002] THE LAST GREEN LAGOON ppm increase in salinity at Imperial Dam cost irrigators in Imperial Valley a total of $108,000 in direct and indirect costs - costs that were estimated to reach $240,000 in the year 2000.174 The impact of salinity on municipal users is equally severe. 175 A City of Los Angeles study concluded that each additional ppm of salt causes $300,000 in damage to the city's water delivery system annually. 7 For individual consumers, "[ilncreases in the concentration of salinity and hardness lead to added soap and detergent consumption ... [damage to] water heaters, accelerated fabric wear, [and] added water softening costs . .. 1 Recent MWD estimates predicted that a reduction of 100 ppm in its water supplies would save its customers approximately $95 million annually in adverse impacts. 7 The overall economic cost of Colorado River salinity is far greater, reaching nearly $1 billion annually in the U.S. alone, 7 9 and, according to BOR estimates, totals approximately $2.5 million 80 per 1 ppm of increased salinity in the Lower Basin as a whole. High salinity water also poses recognized human health risks and harms fish and wildlife.18'

174. DONALD WORSTER, RIVERS OF EMPIRE: WATER, ARIDITY, AND THE GROWTH OF THE AMERICAN WEST 323 (1985). Some observers criticize such studies as alternatively underestimating or overestimating the costs of increased salinization by failing to account for non-linear relationships between increasing salinity and the costs imposed (costs tend to increase at an increasing rate). They also note the existence of salinity/cost thresholds. For example, once salinity reaches a certain point, a large cost may be imposed due to the necessity of switching to salt tolerant crops however, after that point has been passed, increased salinity will not impose as great a cost. See, e.g., Richard L. Gardner & Robert A. Young, An Economic Evaluation of the Colorado River Basin Salinity Control Program, 10 WESTERN JOURNAL OF AGRICULTURAL ECONOMICS 1 (1985). 175. See PONTIUS, supranote 3, at 67. 176. See REISNER, supra note 1, at 483. 177. KLEINMAN & BROWN, supra note 167, at 3. A 1980 DOI study estimated the annual damages incurred by Lower Basin consumers (in terms of increased household costs from detergent use, appliance replacement, and so forth) at $240,500 for each 1 ppm increase in Colorado River salinity, in 1976 dollars. See generally UNITED STATES BUREAU OF RECLAMATION, COLORADO RIVER WATER QUALITY OFFICE, COLORADO RIVER SALINITY: ECONOMIC IMPACTS ON AGRICULTURAL, MUNICIPAL, AND INDUSTRIAL USERS (1980). 178. See Josh Newcom, Getting Serious About Salt: Urban Water Purveyors Seek Solution to Mounting Problem, WESTERN WATER, Sept. -Oct. 1999, at 8. 179. See PONTIUS, supra note 3, at 67. 180. See BUREAU OF RECLAMATION, U.S. DEPARTMENT OF THE INTERIOR, COLORADO RIVER INTERIM SURPLUS CRITERIA DRAFT ENVIRONMENTAL IMPACT STATEMENT [hereinafter "DEIS"], Section 3.5-7 (July 2000), available at http://www.1c.usbr.gov. 181. See Newcom, supra note 178, at 4. Human health risks include congestive heart failure, liver disease, and kidney disease. TEXTBOOK OF INTERNAL MEDICINE 839 (William N. Kelley, M.D. ed., 2nd ed. 1992). ECOLOGY LAW QUARTERLY [Vol. 28:903

Salinity issues came to a head between the U.S. and Mexico in the early 1960's, when the filling of Lake Powell, combined with the addition of supersaline wastewater from the Wellton- in Arizona, drove salt concentrations Mohawk Irrigation District 82 above 2,000 ppm in the Colorado River as it entered Mexico.' The result was a destruction of crops throughout the Mexicali Valley."8 3 Two subsequent treaty amendments ultimately guaranteed that Mexico would receive water no more than 115 ppm more saline than the water diverted at Imperial Dam.184 To meet this requirement, the U.S. implemented salinity control measures, established EPA standards for salinity under the Clean Water Act, re-routed Wellton drain water via canal to the Cienega de Santa Clara, and constructed a $250 million desalinization plant at Yuma which, if necessary, can desalinate Wellton drain water to dilute the mainstream water to prevent 85 violations of the treaty. 1 Unfortunately, these provisions have only provided a temporary solution. Salt concentrations are inversely related to flow levels. As water consumption increases along the Colorado, salinity will rise as water that would otherwise dilute the salinity of the river's water is diverted. Salinity also rises as water is used and re-used; irrigation return flows typically contain additional salts leached from the soil.186 Indeed, more than half of the total salt in the river comes from human activities.'87 Inevitably, the salt load in the river will grow to unacceptably high levels in Mexico, even if the proportionate levels between Imperial and Morelos dams remain within the treaty limits. '88 The latest report of the Colorado River Basin Salinity Control Forum (CRBSCF) found that some 1.5 million tons of salt must be removed from the river on an annual basis to achieve the treaty standards, at a cost between $27 and $76 per ton. 189 Federal funding for salinity control, however, has been

182. See PONTius, supra note 3, at 62. 183. See id. 184. See United States-Mexico Agreement on Colorado River Salinity, Minute No. 242 of the IBWC: Permanent and Definitive Solution to the International Problem of the Salinity of the Colorado River, August 30, 1973, U.S.-Mex., reprinted in 68 AM. J. INT'L L. 376, 377 (1974). 185. See Garner, supra note 45, at 500. See also Martin Van Der Werf, Draining the Budget to Desalt the Colorado, HIGH COUNTRY NEWS, February 21, 1994, available at www.hcn.org. 186. See PoNIus, supra note 3, at 61. 187. See id. at 61-62. 188. Myron B. Holburt, International Problems on the Colorado River, 6 WATER SUPPLY& MGMT. 105, 111 (1982). 189. See Newcom, supra note 178, at 7-8. 20021 THE LAST GREEN LAGOON decreasing in recent years.19 Without adequate federal funding, violations of the EPA standards are imminent, and U.S. treaty compliance is jeopardized, In fact, according to a 1996 CRBSCF report, salinity concentrations were already in violation of EPA standards, a situation only avoided in 1997 due to unusually high flows. 191

D. Efforts to Save the Salton Sea Restoration efforts in the Salton Sea, California's largest inland , represent another potential claim to the water of the Colorado. Located in California's Imperial Valley approximately 90 miles east of San Diego, the Sea lies in a natural bowl that has filed with water from time to time over the past few million years.'92 The Sea owes its current existence to a twentieth century engineering catastrophe.1 93 In the early 1900's, Anglo speculators dug a large diversion canal from the Colorado River (near Yuma), passing through Mexico to the newly-named town of Imperial, California.'94 By 1904, Imperial Valley had 7,000 settlers who irrigated farmland with Colorado River water. 9 Nevertheless, the poorly constructed main canal soon clogged with sediment. To bypass the clog, the Colorado Development Company cut a new canal in the river's banks, but failed to install a control gate.196 The next spring, heavy snowmelt from the Rocky produced severe flooding along the Gila and the Lower Colorado Rivers, and the river broke through the primitive canal banks. By summer, the entire flow of the Colorado River had moved from its natural channel into the new canal and was flowing into the Imperial Valley, rapidly flooding more than a quarter of a million acres of farmland.'97 A massive one and a half year effort eventually pushed the river back into its natural channel, but the gigantic inland sea created by the flood remained and continued to grow, fed by irrigation outflows from the Imperial, Coachella, and

190. See PoNTIus, supra note 3, at 65. 191. See PONTIUS, supra note 3, at 66; Newcom, supra note 178, at 7. 192. See M[CHAEL J. COHEN ET AL.. HAVEN OR HAZARD: THE ECOLOGY AND FUTURE OF THESALTON SEA 1 (1999). 193. See id. at 6-7. 194. See WORSTER, supra note 174, at 194-212. 195. See id. at 196. 196. Id. at 196-197. 197. Id;L see also COHEN ET AL., supra note 192, at 6. ECOLOGY LAW QUARTERLY [Vol. 28:903

Mexicali valleys, and later by Mexican municipal wastewater flows from the New River. 198 The Sea has no outlet, and its size depends solely on the amount of wastewater inflow balanced against the rate of evaporation from the Sea's surface. Today, it is about 35 miles long, from 9 to 15 miles wide, and lies 227 feet below sea level.' 99 Due to years of high-salinity agricultural wastewater inflow and the concentrating effects of evaporation, the salinity of the Sea now exceeds that of the ocean; at the same time, nutrient loading from fertilizers has produced gigantic toxic algae blooms within the Sea.2 00 Nevertheless, the Salton Sea is a critical environmental refuge, serving as a stopping point for more than 380 species of birds on the Pacific Flyway.20 ' The Salton Sea is one of the few remaining refuges along the Pacific Flyway north of the Delta because most wetlands in California's Central Valley have been drained or filled. Unfortunately, due to avian cholera and botulism, the Sea produces enormous mortality among these birds.10 2 As the water quality of the Sea continues to deteriorate due to salt, pesticide, toxics, and nutrient 20 3 concentration, it is likely that this bird mortality will increase. Recent interest in the Sea as a refuge for migratory waterfowl has spawned efforts to save it. In the mid- 1990's, the late Sonny Bono, a United States Representative from Southern California, 2 took on the Salton Sea as his personal crusade. 1 In his honor, Congress passed the Salton Sea Reclamation Act in 1998, which authorized the BOR, U.S. Fish and Wildlife Service {FWS), and U.S. Environmental Protection Agency (EPA) to undertake a feasibility study for restoring the Salton Sea.2 5 The Act renamed the refuge the Sonny Bono Salton Sea National Wildlife Refuge and provided $8 million for the feasibility study and for clean-up efforts along the New and Alamo rivers (which empty into the Sea).20 6 In January 2000, the Salton Sea Authority and the Bureau of Reclamation released a Salton Sea Draft

198. See WORSTER, supra note 174, at 197-198. 199. See COHEN ETAL., supra note 192, at 1. 200. See id., at 15-16. 201. See icLat 18. 202. See id. at 19-20. 203. See id at 15-20. 204. See id at 25. 205. See id. at 27; Salton Sea Reclamation Act, 112 Stat. 3377 (1998); see also Michelle Nijhuis, Accidental Refuge: Should We Save the Salton Sea?, HIGH COUNTRY NEWS, June 19, 2000, available atwww.hcn.org. 206. See also COHEN ET AL., supra note 192. See generally Nijhuis, supra note 205. 20021 THE LAST GREEN LAGOON

Environmental Impact Statement that identified several restoration options for the Sea.2 °7 These include using impoundments to segregate a portion of the Sea into evaporation , pumping water out of the Sea, and attempting to augment water flows into the Sea to promote dilution of salt and 20 8 toxics. While the Act precluded any option that "relies on the importation of any new or additional water from the Colorado River," 209 several environmental groups, including the Audubon Society, remain in favor of diverting additional Colorado River water into the Sea in order to dilute salinity.2 10 A number of other environmental groups oppose such a plan, preferring to reserve additional flows for restoration along the Lower Colorado River and Delta.2 ' Regardless of the alternative selected, restoration of the Sea will be enormously expensive. According to High Country News, "[Elven the cheapest proposed solution would require a congressional appropriation of more than $300 million. "212 In addition, despite the elaborate engineering fixes designed to cope with salt loads in the Sea, none of the proposed solutions deals with the real problem facing the Sea: the growing demands on the water that feeds it. Regional water conservation and municipal wastewater reuse efforts are underway that will inevitably reduce flows of water to the Sea. 21 3 The conservation/transfer agreements between southern California cities and the Imperial Irrigation District2 1 4 are one serious threat. Though laudable for their conservation goals, such efforts will only increase the environmental problems of the Sea by reducing the fresh water inflows. In our judgment, it is hard to think very long about saving the Salton Sea before turning one's eyes toward the Colorado River, despite the current promises that restoration is possible without the addition of new Colorado River water. The Colorado is the lifeblood of the Sea, and if the Sea is to survive as municipal and agricultural water use in the region grows more

207. See Salton Sea Restoration Project, at http: //www.lc.usbr.gov/-saltnsea/ssrest.html. 208. See iAL 209. Salton Sea Reclamation Act § 101(b)(2)(C), 112 Stat. 3377 (1998). 210. Nijhuis, supra note 202, at 12-13. 211. See A at 12. 212. See itd. 213. See COHEN EAL., supra note 192, at 34-35. 214. See idl. ECOLOGY LAW QUARTERLY [Vol. 28:903 efficient, at least some Colorado River water will eventually need to be dedicated to restoration purposes. However, every drop of water spent on the Sea will inevitably take water away from existing users - or it will take it from the Delta.

E. The Inevitable Future:Moving Waterfrom Farms to Cities

The combined pressures of population growth, increasing Upper Basin use, increasing tribal use, and salinity will have the unavoidable long-term consequence of shifting the water of the Colorado from farms to cities.2"' Municipal and industrial uses produce greater economic benefit per unit of water,21 6 and these types of users are ultimately willing to pay more for water than farmers.2 1 7 In the Lower Basin, irrigated agriculture (much of it growing cattle feed) accounts for around 85% of all water use,2"8 but produces comparatively low economic returns. In 1994, cotton and alfalfa irrigation in Arizona consumed nearly 2.2 maf of water - equivalent to 75% of Arizona's Colorado River entitlement" 9 - despite the fact that these crops produced the lowest returns of any in the region (alfalfa returned only $95 per acre-foot of water used, cotton only $192 per acre-foot).2 0 By contrast, a typical Tucson consumer paid nearly $700 per acre- foot for residential water.2 The juxtaposition of these low agricultural returns with the premium paid for municipal water reflects the substantial subsidization of agriculture through irrigation projects, dams, and other measures.22 2 This situation cannot persist forever. The Lower Colorado's powerful agricultural interests traditionally have relied on the protections of the Law of the River to maintain their dominance in the water wars; however, recent developments on the Lower Colorado suggest that the balance of

215. See William H. Swan, New Developments on the Colorado River, in WATER LAW: TRENDS, POLICIES, AND PRACTICE 341-342 (Kathleen M. Carr & James D. Crammond eds., 1995). 216. See id. 217. See NATIONAL RESEARCH COUNCIL, supra note 70, at 25-26. See discussion infra Part IV (discussing how the recent developments on the Lower Colorado represent an acceleration of this trend). 218. See FRADKIN, supra note 9, at 32. 219. SeeMORRISONETAL., supranote 137, at 37. 220. See id. at 39. Compare the returns for alfalfa and cotton to $3,316/af for lettuce, $1,752/af for cantaloupe, and $1820/af for cauliflower. Id. 22 1. Personal Communication with Christopher Avery, Esq., Attorney for Tucson Water, (Oct. 15, 1999). 222. See NATIONAL RESEARCH COUNCIL, supranote 70, at 25-26. 2002] THE LAST GREEN LAGOON power has already begun to shift. As we shall argue, this shift ultimately has significant implications for the future of the Delta.

III RECENT DEVELOPMENTS ON THE LOWER COLORADO

A. The Arizona Water Bank

In 1996, Arizona passed legislation creating the Arizona Water Bank ("the Bank"), an innovative first-of-its-kind2 2 3 water marketing plan designed to address projected shortages.22 4 The Bank moves Colorado River water through the Central Arizona Project (CAP) to central Arizona, and then uses it either for "direct recharge" or "in lieu recharge," generating "future recovery rights" that can be withdrawn at a later time.225 Direct recharge involves recharging CAP water into aquifers, temporarily storing water underground until it is needed. 2" In lieu recharge occurs when a current groundwater user switches to using CAP water instead of pumping groundwater.22 The groundwater "saved" by this exchange can then later be withdrawn by the Bank - in essence, simply postponing the unsustainable use of groundwater supplies.2 2 In addition, the Bank allows California and Nevada to access up to 100,000 af annually of Arizona's Colorado River allotment.2 29 The general concept is that in water surplus years, California and Nevada users can pay to store water in the Bank that would otherwise go unused, and in shortage years, they can draw on their banked supplies. Arizona's fear that California might eventually obtain rights to the unused portion of Arizona's 2.8 maf Colorado River allocation prompted creation of the Bank, which enables Arizona to utilize (via storage) its full share of Colorado River water.23 ° The creation of the Water Bank was a brilliant strategic move on Arizona's part, because it prevents California from continuing to rely on Arizona's unused water while simultaneously improving the reliability of central Arizona's water supply. As a result, the

223. See LaBianca, supra note 135, at 659-660. 224. See PONTIUS, supra note 3 at 37-38. 225. See Id. at 37-39. 226. Id. See also LaBianca, supra note 135. 227. See PONTIus, supra note 3, at 37-38. 228. Id. at 38. 229. Id; see also LaBianca, supra note 135, at 678-679. 230. See LaBianca, supra note 135, at 659-660. ECOLOGY LAW QUARTERLY [Vol. 28:903 creation of the Bank has placed enormous pressure on California to scale back its diversions from the Colorado River.

B. Interstate Water Banking In November 1999, the U.S. Department of the Interior (DOI) issued regulations implementing interstate water banking on the Lower Colorado."'1 The final rules create a procedural framework - operating within the limits of the existing Law of the River232 - whereby the Secretary of the Interior can administer Storage and Interstate Release Agreements (SIRAs) among the Lower Basin states.2 33 Under the rules, a banking customer empowered by state law 4 can develop "intentionally created unused apportionment" (ICUA)235 and store it in another Lower Basin state (e.g., in the Arizona Water Bank).23 6 The Bank can then release the stored water by developing ICUA to be returned to the party who banked it. 23 7 ICUA can also be released on credit, in anticipation of an equal amount of subsequent storage in the 238 same year. With state authorization, banked ICUA can also be sold, 239 as long as all parties to the agreement approve. 240 Whether these regulations alter the Law of the River2 4' depends on the

231. See generally Offstream Storage of Colorado River Water and Development and Release of Intentionally Created Unused Apportionment in the Lower Division States, 43 C.F.R. § 414 (1999) [hereinafter Offstream Storage of Colorado Water Statute]. 232. See id. § 414. 1(b)(3). 233. See id.§ 414. 1(a)(3). 234. See id. § 414.2(2). 235. See id.§ 414. 1(a)(2). 236. In July 2001, the Arizona Water Banking Authority (AWBA), the Southern Nevada Water Authority (SNWA) and the Colorado River Commission of Nevada entered into an agreement for interstate water banking that contemplates SNWA obtaining long-term storage credits of 1.2 maf of water stored by the AWBA. See Art. 1.2.4, Agreement for Interstate Water Banking among the Arizona Water Banking Authority and the Southern Nevada Water Authority and the Colorado River Commission of Nevada (July 3, 2001]. 237. See Offstream Storage of Colorado Water Statute, supra note 231, § 414.3(a)(8)-(10). 238. See idL§ 414.3(0l. While methods for developing ICUA are not specifically defined, the rules require that methods be defined in the SIRA and be subject to verification and approval by the Secretary. See id. § 414.3(a)(10},(I 1),(14), and (15). 239. See id. § 414.3(a)(18)(d). 240. See id. 241. Tribal water rights are not directly addressed by the rule; while the DOI states that it is "encouraging the Lower Division States to enact measures and take actions that will allow the tribes to participate," they can only do so with state law authorization. See Final Rule, Offstream Storage of Colorado River Water and Development and Release of Intentionally Created Unused Apportionment in the 2002] THE LAST GREEN LAGOON resolution of the tension between §§ II (B)(4) and II (B)(6) of the Supreme Court's decree in Arizona v. Califomio z 4z This banking provision has tremendous potential to facilitate future water marketing in the Lower Basin, assuming that the states will authorize users to participate. Nonetheless, it is likely that water marketing will only increase the pressure on the water of the Colorado, transforming whatever surplus water may exist in a given year into a commodity that can be diverted, stored, and sold to the highest bidder.

C. Moving Waterfrom Agricultural to Municipal Use: The Seven Party Agreement, the "4.4 Plan," and the "Quantification Settlement Agreement"

The Arizona Water Bank broke the stalemate on the Lower Colorado, triggering the involvement of then-Secretary of the Interior Babbitt and a series of important changes. California, which was still using 5.2 maf of water, suddenly faced the very real possibility that it could be restricted to its 4.4 maf apportionment - a disaster for Southern California cities. Under a 1930's-era pact called the Seven Party Agreement, southern for Colorado River water, and California's cities were last in line 43 thus first to be cut off whenever demand outstripped supply. The Seven Party Agreement established the priority and allocation of rights to California's share of the Colorado as follows: Initial Allocation to Agriculture: 3.85 maf, split into three priorities: First priority: Palo Verde Irrigation District (PVID) for irrigation of 104,500 acres, Second priority: Yuma Project (25,000 acres); and Third priority: split among a) Imperial Irrigation District (lID) and Coachella Valley Water District (CVWD) and b) PVID, for irrigation of 16,000 acres.

Lower Division States, 64 FR 58,986, 58,989 (November 1, 1999). Given the highly politicized nature of tribal water issues, state authorization seems unlikely: however, the rule does reserve the possibility of independent action by the Secretary. See 43 C.F.R.§ 414.1(b)(2) (2001). 242. See Arizona, 376 U.S. at 343. 243. See Boulder Canyon Project, Agreement Requesting Apportionment of California's Share of the Colorado River Among the Applicants in the State (the "Seven Party Agreement"), Aug. 18, 1931, reprinted in NATHANSON, supra note 45, at I- 27. ECOLOGY LAW QUARTERLY [Vol. 28:903

Allocation to Municipalities: 1.212 maf, split into two priorities: Fourth priority: split between the Metropolitan Water District (MWD) of southern California and the City of Los Angeles, for 550,000 acre-feet; and Fifth priority: split between MWD and L.A. for 550,000 acre-feet, and San Diego for 112,000 acre-feet. Additional Allocation to Agriculture: Sixth priority: 0.3 maf, to IID, with a small share for PVID; and Seventh (and last) priority: all remaining water to other agricultural interests. 24 Thus, the Seven Party Agreement daringly provided for the allocation of 5.36+ maf, or 1 maf more than California's allotment under the BCPA. To divert this amount, California would use the unused apportionments of the Upper Basin and the other Lower Basin states, as well as the occasional "surplus" flows resulting from heavy flow years. If California were ever limited to 4.4 maf, however, MWD and San Diego stood to lose 662,000 af - half of MWD's and all of San Diego's Colorado River supply. No one considered this to be a serious problem when surplus flows were plentiful, southern California's future cities were barely even large towns, and urban water development elsewhere in the Lower Basin seemed unlikely. After all, in the 1930s Las Vegas was an anonymous, tumbleweed settlement, Denver a "cow town," and Salt Lake City a small agricultural center.2 45 Phoenix and Tucson were only small towns, and many of the engineers who built the CAP were not yet even born. As the Upper and Lower Basins developed, however, the margin of safety for municipal water supplies shrank rapidly. In the 1980's, MWD and the San Diego County Water Authority (SDCWA) began circulating proposals for "ag-to-urban" water transfers.24 6 Predictably, these proposals met with strong resistance.24 7 A 1989 MWD/IID water conservation agreement, in which MWD sought 106,100 af of water obtained from

244. See id. 245. Between 1930 and 2000, the population of Las Vegas grew from 18,000 to 1.5 million; Denver from 356,000 to 2.1 million; and Salt Lake City-Ogden from 260,000 to 1.3 million. See Metropolitan (MSA) Population Data by Decade, at http://recenter.tamu.edu/data/popmd. 246. See Rita Schmidt Sudman, In the News: Colorado River Update, WESTERN WATER, Jan.-Feb. 1998 at 3. 247. See id.at 3. 2002] THE LAST GREEN LAGOON conservation in Imperial Valley, immediately provoked a lawsuit from the Coachella Valley Water District (CVWD), which claimed first right to any water not used by lID under the rules of the Seven Party Agreement.24 In 1997, SDCWA and IID reached a draft agreement that gave San Diego 300,000 af conserved on lID farms.249 MWD responded by proposing high rates to deliver the water through the California aqueduct, rates that SDCWA considered unacceptable.25 ° So long as the surplus continued to flow, this stalemate could continue. With the Arizona Water Bank in operation, in 1996 both Arizona and Nevada used nearly their full apportionments. 1 With the Lower Basin surplus suddenly exhausted, California had to rely on the Secretary of the Interior's annual surplus determinations to prevent the loss of a significant portion of Southern California's municipal water.252 As a result, then- Secretary Babbitt suddenly found himself in control of a significant portion of Southern California's municipal water supply. Unfortunately (at least from Southern California's perspective), this control rested in the hands of a man who had once referred to the sacred BOR as the "Bureau of Wreck and Lamentation."253 After years of trying to get California to be more 'Judicious in its use," Babbitt saw an opportunity to use his new leverage to re-shape and rationalize water use in Southern California.25" Babbitt quickly forced the major California water interests to the negotiating table to devise a plan to reduce California's consumption of Colorado River water, using three key threats for leverage: (1) new surplus criteria that would unilaterally reduce California's access to surplus water: (2) interstate water banking regulations that would allow Nevada and Arizona to completely utilize their share of the Colorado; and (3) potential enforcement

248. See NAnoNAL RESEARCH COUNCIL, supra note 70, at 242-243. 249. See Tony Perry, Key Deal Near on Shift of Water to Cities From Farms Policy: In Accord Hailed as National Model, San Diego Could Make Cheaper Purchasesfrom Imperial Valley Instead of MWD, L.A. TIMES, Dec. 12, 1997, at Al, available at 1997 WL 14009335. 250. See Sudman, supra note 246, at 3. 251. See McClurg. supra note 12. at 7. 252. See id. 253. Gail Diane Cox, Status Quo is Threatened on Nation's Most-Litigated River. THE NATIONAL LAW JOURNAL, Sept. 13, 1993, at 1. 254. Tony Perry, Babbitt Praises Californiafor Water Policy Progress Resources: Citing Conservation, He Tells Other States That Use Colorado River Water That They Have Reason to Trust Their Big Neighbor, L.A. TIMES, Dec. 18, 1999, at A28, available at 1999 WL 26206737 [hereinafter Babbitt Praises]. ECOLOGY LAW QUARTERLY (Vol. 28:903

of "beneficial use" requirements in the Imperial Valley. 5 After a series of negotiations led by the Department of the Interior, 56 MWD, IID, and CVWD unveiled a draft California Colorado River Use Plan (known as the "4.4 Plan") under which California would gradually reduce its water use, from 5.3 maf to 4.7 maf by 2015, and to 4.4 thereafter.25 7 Because of the gradual rate of reduction until 2015 and vague provisions to further reduce water use thereafter, the other Basin states immediately criticized the plan as being a "4.7" or "4.8" plan.5 8 Regardless, the initial agreement quickly fell apart when CVWD blocked key IID-SDCWA water transfers.2 5 9 Relations among the major California interests subsequently deteriorated rapidly. MWD soon alienated the other water users, California Governor Gray Davis, and the state legislature with threats of litigation, and lID boycotted a Colorado River Board meeting. On October 15, 1999, under angry threats from both Babbitt and Davis, the California parties agreed to the "Key Terms for Quantification Settlement" (known as the Quantification Settlement Agreement or "QSA"), which was a major step in implementing the 4.4 Plan and a significant change in the priority structure under the Seven Party Agreement. The decision was reached just a few hours past a midnight deadline and after three days of intensive negotiations. 261 An lID spokesperson described the process as the "world's longest -hanger."2 62 The QSA set out "key material terms" (to be bundled into a future binding agreement) that would significantly alter the priority structure under the Seven Party Agreement and legitimize a

255. See Department of the Interior, Press Release: Babbitt Announces Measures to Help Ensure Future Lower Colorado River Water Supply, Effective Use (Dec. 19, 1996). available at 1996 WL 928209. 256. See McClurg, supra note 12, at 4. 257. See id. at 8. 258. See id. 259. See id. at 10. 260. See generally Steve La Rue, Babbitt Tells MWD No on Extra Water, SAN DIEGO UNION-TRIB., Jan. 23, 1999, at A3; Steve La Rue, Imperial-Coachella Pact Gains: Accord First Step Toward Ending Water Dispute, SAN DIEGO UNION-TRIB., Jan. 30, 1999, at A3; Steve La Rue, New West Water War Feared by Babbitt, SAN DIEGO UNION- TRIB., Feb. 11, 1999, at A3; Michael Gardner, State Gets a Warning on Water Squabble, SAN DIEGO UNION-TRIB., March 18, 1999, at A3; More MWD Mischief SAN DIEGO UNION-TRIB., March 12, 1999, at A3. 261. See Tony Perry, 3 Agencies Reach Truce on ColoradoRiver Water, L.A. TIMES, Aug. 5, 1999, at Al. 262. See Michael Gardner, 3 Agencies Near Deal on Sharing River Water, SAN DIEGO UNION-TRIB., Oct. 16, 1999, at A3. See also Perry, supra note 261; Michael Gardner, Colorado River Water Deal Sealed: Agencies Will Divide Supply in Historic Pact SAN DIEGO UNION-TRIBUNE, Oct. 19, 1999, atA3. 2002] THE LAST GREEN LAGOON number of transfer agreements, including the MWD/IID transfer agreement and the SDCWA/IID agreement.263 Officials for the municipal water users were effusive in their praise of the QSA. MWD's chairman called the QSA "not only a good deal for Metropolitan and 16 million Southern California consumers, but for the entire state as well."2" The chairman of SDCWA was even more exuberant, calling the settlement a "milestone," and a testament to the sheer determination and resolve of a community that experienced the severest impacts of droughts and had the courage and tenacity to take bold, visionary steps - oftentimes in the face of great adversity - to ensure it never again faces the destruction of its economy and lifestyle. 265 Their enthusiasm is easy to understand, as the agreement was a major victory for the cities. 266 After this latest exercise in

263. See Key Terms of the Quantification Settlement Among the State of California, lID, CVWD and MWD, available at http://www.cvwd.org/wateriss/Key-Terms.htm (Oct. 15, 1999) (hereinafter Key Terms of the Quantification Settlement]. 264. Press Release, Metropolitan Water District, Metropolitan Board Approves Provisions of Complicated Colorado River Settlement (Oct. 18, 1999). 265. Press Release, San Diego County Water Authority, Quantification Settlement Key to Water Transfer, (Oct. 18, 1999). 266. See Key Terms of Quantification Settlement, supra note 263. The Quantification Agreement is extremely dense, and relies on a number of transfer agreements and payments external to it. Assuming all of its conditions are fulfilled, it will have amended the priority structure of the Seven Party Agreement to look roughly as follows: I. Allocation to Agriculture and MWD: 420,000 af, split into three priorities: 1) PVID - water sufficient to irrigate 104,500 acres; 2) Yuma Project - water sufficient to irrigate 25,000 acres: 3) (b) water sufficient to irrigate 16,000 acres served by PVID (priority lower than 3(a) following). -In the event that the sum of priorities 1, 2 and 3(b) is less than 420,000 acre-feet, MWD gets the remainder. In the event that it is greater, MWD must make up the difference. I1. Allocation to Agricultural and Municipal Interests: 3.43 maf, split into two priorities: 3) (a)(i) Municipal interests: 317,000 - 397,000 af -MWD: 187,000 - 197,000 at (from transfers and canal lining in lID and CVWD) -SDCWA: 130,000 - 200,000 af (from a transfer from IID) (a)(ii) Agricultural interests: 3.04 - 3.12 maf -lID: 2.71 - 2.79 mat -CVWD: 330,000 at -Shortages shared 75% lID. 25% CVWD. ECOLOGY LAW QUARTERLY [Vol. 28:903

brinkmanship, Southern California's cities (via MWD and SDCWA) acquired nearly 400,000 af of higher priority agricultural water.26 7 Instead of guaranteed rights to a mere 550,000 maf of California's 4.4 maf BCPA allocation, MWD/Los Angeles now have guaranteed rights to more than 750,000 af; SDCWA has guaranteed rights of up to 200,000 af - up from 2 zero. ' The cities have thus advanced significantly up the California priority system. Assuming continued DOI surplus declarations, the cities now have guaranteed rights to the full 269 Colorado River Aqueduct delivery capacity of 1.3 maf. The adoption of the QSA represented a major step towards the finalization of the 4.4 Plan that the water users had

HI. Allocation for Municipal Interests: 1.212 maf, split into two priorities: 4) MWD and City of Los Angeles: 550,000 af: 5) 662,000 af split between the cities: -MWND and L.A. - 550.000 af -SDCWA - 112,000 af. IV. Allocation for Municipal and Agricultural Interests: 300,000 af, equally split between (a) municipalities and agriculture and (b) PVID: 6)(a) 220,000 af, split into three priorities, satisfied in order: -38,000 af to MWD -63,000 af to lID -119,000 to CVWD (b) remainder to PVID with equal priority to (a). V. Remaining Allocation: all remaining water, seventh and last priority, to agricultural interests. liD's and CVWD's use under priority 3(a) of the Seven Party Agreement is thus capped at fixed amounts (3.1 maf and 330,000 af. respectively), less the roughly 380,000 af transferred to the cities under the various agreements. In addition, MWD receives any benefits (but also bears the risk) if use by priorities 1, 2, and 3(b) is either less than or more than 420,000 af - essentially giving MWD a free first option on the remaining PVID and Yuma Project water - as well as an additional 38,000 af of Priority 6 water in years in which that Is available. MWD also has first option on water that lID will make available to CVWD under the agreement, which could afford it access to thousands of additional acre-feet of agricultural water. In addition to these changes, MWD will have access to up to 90,000 af per year of additional conserved water from IID under another conservation project (these amounts are not reflected in the priority structure above). The Agreement also provides a small amount of water as a byproduct to settle Indian reserved rights claims in the region. See id. 267. See id. 268. See id. 269. Moreover, if the southern California cities were to develop additional transportation capacity - via a new aqueduct, for example - they would be able to take advantage of an additional 300,000 af of water rights which they now own under the new priority system, but currently cannot use due to the limited capacity of the Colorado River Aqueduct. 2002] THE LAST GREEN LAGOON tentatively negotiated years earlier. The Agreement also represents, we believe, a fundamental shift in the balance of power on the River. If the cities were the victors in this latest round, then the farms - lID and CVWD - were the losers, ending the struggle with less water than they had before. This latest round in the Colorado River water wars suggests that a shift in political power from the traditional trinity of agribusiness, irrigation districts, and hydropower to municipalities, and thus from farms to cities, has begun.

D. Giving in to the Pressure?The New ColoradoRiver Surplus Criteria The California water users expressly conditioned the incorporation of the terms of the QSA into a legally binding settlement on one essential item: Secretary of the Interior Bruce Babbitt had to adopt surplus criteria that would guarantee municipal water supplies through at least 2015.270 In an appendix to the QSA, the California water users provided their model surplus criteria, which utilized reservoir drawdowns to guarantee surplus deliveries to California above 4.4 maf - even in dry years - through 2015.27 This would buy the California municipalities time to seek additional supplies to guard against shortages, and would give the parties time to implement the complex of water transfers and conservation measures envisioned in the QSA. At the same time, it would allow Lower Basin users to utilize a significant portion of the flood flows that were continuing to escape to Mexico under the existing river management system. California officials have long claimed that the 60 maf of storage in the Colorado reservoir system is more than adequate, and that excess storage causes water to be wasted in flood years. 2 2 By allowing reservoirs to be drawn down further during normal and dry year operations, when wet year floods occur, more - if not all - of a wet year's floodwaters can be captured and stored in the system for human consumption. The QSA was expressly conditioned on Babbitt's adoption of surplus criteria that were "in all respects in conformance with"

270. See Key Terms of Quantification Settlement, supranote 263, § IV(B). 271. See id. at Exhibit A. This strategy is supported by official California projections that demonstrate a 50% probability of an average natural surplus flow till 2010, 40% to 2020, and 30% to 2030. See McClurg, supra note 12, at 8. Of course, in the event of a serious drought, shortfalls are still possible. 272. See McClurg, supra note 12, at 13. ECOLOGY LAW QUARTERLY [Vol. 28:903 the California model criteria.27 3 Babbitt had repeatedly stated that he wanted to solve the Colorado River "puzzle" before the end of his term as Secretary;27 4 if he failed to give in to California, he risked blowing apart the fragile California accord. These pressure tactics worked. At the December 1999 Colorado River Water Users Association (CRWUA) meeting, Babbitt praised the 2 7 5 efforts of the California water interests in reaching the QSA. Retreating significantly from the hard line he had taken during the California negotiations, Babbitt instead urged the other Colorado River Basin states, in the words of The Los Angeles Times, to "cut California some slack,"2 76and cooperate with BOR in its development and implementation of new surplus criteria that would meet California's needs. In compliance with the National Environmental Policy Act (NEPA), BOR prepared an Environmental Impact Statement assessing the environmental impact of a new set of Colorado River Surplus Criteria. The draft Environmental Impact Statement (DEIS) issued in July 2000 evaluated the various alternatives for new Colorado River Surplus Criteria,2 77 which included two competing alternatives submitted by the Basin

273. See Key Terms of Quantification Settlement, supra note 263, § IV(B). 274. See Press Release, Department of the Interior, Babbitt Calls 1999 "Year of Accomplishment" on Colorado River, Outlines Efforts Necessary for Continued Progress Toward More Efficient Use (Dec. 17, 1999), available at http://www.eparka.com/news/L8/SO/RD/1L8SORDM9/index.html. 275. See Perry, supra note 254, at A28. 276. See id. 277. These included: the "Flood Control" alternative, the required "baseline" or "no-action" alternative, the "Six States" alternative, the "California" alternative, and the "Shortage Protection" alternative. See DEIS, supra note 180, at 2-5 - 2-15. At one extreme, the Flood Control alternative would only have released surplus to prevent floods, thus keeping reservoir storage at a maximum (and Lower Basin water use at a minimum). See id. at 2-7 - 2-8. At the other extreme, the Shortage Protection alternative would have allowed substantial reservoir drawdowns to maximize surplus flows, thus maintaining storage only to the extent necessary to minimally protect (at 80% certainty) against shortages and preserve minimum efficiency power production at the mainstream dams. See i& at 2-13 - 2-15. The "California" alternative mirrored the criteria in the Quantification Agreement, id. at 2-3, except that the minimum reservoir levels at Lake Mead were raised 10 feet, which would have satisfied the Quantification Agreement condition mandating the adoption of criteria that are "substantially identical" to those proposed. Finally, the "Six States" alternative kept reservoir levels higher at Lake Mead (30 feet higher than the California Alternative levels), il. at 2-10 and only allowed surplus for municipal and industrial purposes. See id.at Attachment D: Surplus Criteria Proposal by Six States. Both the California and Six States alternatives utilized substantial reservoir drawdowns to guarantee surplus flows in most years. Predictably, the California plan allowed reservoirs to be drawn down lower and allowed surplus water to be dedicated for any purpose - including agricultural use. See id. at Attachment E: Surplus Criteria Proposal by California. 20021 THE LAST GREEN LAGOON

States - one submitted by California that mirrored the criteria proposed in the QSA and allowed broad use of surplus flows, and another proposed by the other six Basin states that placed far more significant limitations on the use of surplus flows.278 The latter alternative was driven in no small part by a fear on the part of the other Basin states that despite the promises in the QSA and the Draft EIS, California would fail to ratchet down its use, and MWD would be able to continue to leverage additional surplus from the Secretary to prevent an urban supply crisis. 79 The negotiations that ensued between the Basin states eventually led to a deal between two of the Basin's greatest rivals, Arizona and MWD. Under the terms of the deal, Arizona and California entered into a binding contract 280 that limits MWD's ability to request Colorado River water from the Secretary to the scheduled, "step down" program envisioned in the 4.4 Plan regardless of any actions taken by the Secretary. Moreover, MWD is required to provide Arizona with a 1 maf "insurance policy," under which MWD has agreed, in the event of a shortage, to forego its use in favor of Arizona up to a total of 1 maf over the 15 year period. In exchange, Arizona agreed to forego the use of its 46% share of Lower Basin surplus water under shortage conditions.2 8 ' With this deal in place, the Basin states successfully negotiated a compromise alternative that was submitted and published during the public comment period to the Draft EIS.28 2 Called the "Seven States" alternative, 283 this compromise alternative was renamed the "Basin States Alternative" by BOR, and was ultimately selected - in slightly modified form - as the preferred alternative.2 4 The Basin States alternative accomplishes three discrete but interrelated goals: first, it allocates the unused basic apportionment of the Lower Basin; second, it identifies water that can be considered "surplus;" and third, it delivers these waters in accordance with a priority

278. Id. 279. See Michael J. Pearce, Implementation of the Seven Basin States' Colorado River Interim Surplus Guidelinesfor the State of Arizona, ENRLS UPDATE (Arizona Bar Association, Environment and Natural Resources Law Section), Jan. 2002. at 13-17. 280. Interim Surplus Guidelines Agreement Between the State of Arizona and Metropolitan Water District of Southern California, May 23, 2001. available at http: //www.adwr.state.az.us/publications/files/Surplus%/20Guidelines.pdf. 28 1. See id. 282. Pearce, supra note 276, at 16. 283. See Colorado River Interim Surplus Criteria, 65 Fed. Reg. 48,531 (Dep't Interior, Aug. 8, 2000). 284. INAL EIS, supra note 71, at 2-10. ECOLOGY LAW QUARTERLY [Vol. 28:903 system. To accomplish the first goal, the Basin States alternative restructures the priority system for unused apportionment in the Lower Basin. Before making any surplus determination, the Secretary first must allocate unused Lower Basin apportionment according to the following priority system: 1) Meet MWD and the Southern Nevada Water Authority's (SNWA) entire Direct Delivery Domestic Use requirements. 2) Meet MWD and SNWA's off-stream banking activity needs. 3) Meet other California water needs in accordance with the revised Seven-Party/Quantification Settlement Agreement.28 5 To accomplish the second and third goals, the Basin States alternative creates a multi-tiered system for determining and allocating potential surplus flows. The alternative seeks to draw down reservoir levels in order to capture flood flows and generate augmented surplus flows; under this system, different amounts of surplus water are made available and different allocation schemes apply depending upon the reservoir levels at Lake Mead .286

285. The Basin States Alternative was published at 65 Fed. Reg. 48,531 (Aug. 8, 2000). Minor modifications to the alternative were subsequently published at 65 Fed. Reg. 57,371 (Sept. 22, 2000). 286. See Basin States Alternative, supra note 285. The lowest tier (corresponding to the lowest reservoir levels) takes effect when reservoir levels at Lake Mead are below 1,125 feet above sea level (about 75 feet below its current surplus trigger of 1,200 feet). When Lake Mead falls below this level, the Secretary is required to declare a "normal" year, which means that no surplus flows will be provided in the Lower Basin; only the 7.5 maf required by the Compact and the 1.5 maf Treaty obligation to Mexico must be delivered below Hoover Dam. Between 1, 125 feet and 1,145 feet, the Secretary is required to declare a "Partial Domestic Surplus," in which BOR must deliver enough water to MWD to assure that it gets 1.212 maf in that year. This amount of water is defined as 1.212 maf less 1) the amount of California's basic 4.4 maf apportionment available to MWD in that year, and 2) the amount of its demand that MVD manages to offset via groundwater withdrawals or the exercise of options (the latter amount is required to be at least 400,000 af in 2001, but is gradually reduced to 100,000 af by 2016). BOR must also deliver to SNWA and Arizona one-half of the "Direct Delivery Domestic Use" in excess of the states' basic apportionment. Between 1,145 feet and the "70R" "trigger" line (around 1,200 feet), the Secretary is required to declare a "Full Domestic surplus." Under this scheme, MWD receives a full 1.250 maf reduced by the amount of basic apportionment available to MWD, and both SNWA and Arizona receive their full Direct Delivery Domestic Use in excess of their basic apportionment. Above the 70R line, the Secretary is required to determine a "Quantified Surplus." After determining the quantity of the surplus water, the Secretary allocates it according to the same general scheme as required by Arizona v. Califomia: California, 50%, Arizona, 46%, and Nevada, 4%. However, these deliveries are subject to a priority system for each state, and uses are restricted. The users in all three states are first entitled to a Full Domestic Surplus; however, MWD, SNWA, and Arizona are additionally allowed to dedicate whatever they wish to offstrearn water banking; in California. Priorities 6 and 7 can take their shares. Any surplus apportionment that remains in one of the states after they have satisfied their demands can then be transferred to other states; 2002] THE LAST GREEN LAGOON

Under the Basin States alternative, a full surplus is declared and water can be delivered for "all beneficial uses within the United States" in years when releases that exceed downstream demand are necessary for flood control purposes. 8 7 Only under this final scenario, and only after all U.S. requests for surplus deliveries have been met, can surplus water be delivered over the Mexican border.2 8 On December 8, 2000, the Interior Department issued the Final EIS.28 9 Five days later, with an acceptable set of surplus criteria guaranteed for California, the boards of MWD, lID, and CVWD signed off on the QSA.29 On January 16, 2001, with all of the pieces in place and four days left in his term as Interior Secretary, Secretary Babbitt signed a Record of Decision21 implementing the new Colorado River Surplus Criteria.29 2 The Final EIS for the Colorado River Surplus Criteria correctly noted that under any alternative, the frequency and

however, this transferred apportionment can only be used to satisfy demands in the transferee state according to the Full Domestic Surplus schedule (i.e., IID and CVWD cannot use extra Arizona or Nevada surplus apportionment for agriculture). The 70R line roughly corresponds to the current surplus determination line. The "R" refers to the Spill Avoidance strategy of reservoir operations that BOR has used since the floods in the mid- 1980s, which resulted in dangerously heavy - and, in the logic of the river, wasteful - flood spills throughout the Colorado watershed. Designed to reduce the "risk" of future spills, the "R" strategy estimates the amount of space that will be needed in a given reservoir the next year to capture the anticipated flows without spilling. If there is less space in the reservoir than BOR anticipates it will need the next year, the water that must be dumped to create that space is considered "surplus." The "70" refers to the amount of water that BOR estimates will flow in the next year; in a 70R strategy, BOR expects an annual river flow that 70% of the previously recorded river flows would not have exceeded. The 70R criterion corresponds roughly to the strategy BOR has used in Lake Mead over the past decade, although it is slightly more aggressive. In practice, the 70R line (the point at which a surplus is declared under the "R" strategy) is around 1,200 feet of lake elevation at Lake Mead. The average release line over the past decade has been around 8 feet higher. 287. See Basin States Alternative, supranote 285. 288. Id. 289. See FINAL EIS. supra note 71. 290. Quantification Settlement Agreement, Dec. 12, 2000, available at http: //www.cvwd.org/PublicDocs/QuantiflcationSettlement_Agreement.pdf. 291. See Record of Decision, supra note 35. However, DOI is treating the implementation of deliveries to California in accordance with the Quantification Settlement Agreement as separate Secretarial actions requiring their own NEPA review. See 66 Fed. Reg. 14,211 (Mar. 9, 2001) (DOI's notice of intent to prepare an EIS for the action). DOI has recently completed the scoping process for an EIS that will address the impacts of the decision. See Scoping Summary Report: Implementation Agreement, Inadvertent Overrun and Payback Policy, and Related Federal Actions Environmental Impact Statement, U.S. Bureau of Reclamation (Oct. 2001], available at http://www.c.usbr.gov. 292. See Record of Decision, supra note 35. ECOLOGY LAW QUARTERLY [Vol. 28:903 volume of floods and other unplanned releases of water that reach the Delta will gradually decline as the Upper Basin continues to develop.2 93 The EIS acknowledges, however, that under the Basin States Alternative, there will immediately be fewer flood flows south of Morelos Dam, and the volume of any remaining flows will decline.29 4 The reasons for these consequences are straightforward. Reservoir drawdowns increase storage, thus allowing for the maximum capture and use of flood flows. Flood releases from Hoover Dam, which only occur under full reservoir conditions, are virtually the only means by which water ever reaches the Delta. Therefore, the more Lake Mead is drawn down, the less likely water will reach the Delta. Flood flows that would normally pass the dam will be captured during periods of low reservoir levels and later released as "surplus."295 In conclusion, the new Surplus Criteria create a comprehensive, highly structured allocation system for Colorado River water that is heavily prejudiced against the delivery of excess water to Mexico. As a result, the Surplus Criteria have

293. See FINAL EIS, supra note 180, at 3.16-24. 294. The Basin States Alternative will reduce flows south of Morelos Dam by 6% to 100% (resulting in an average reduction of 30%] compared to baseline conditions under 75"' percentile flow conditions. See Table 3.16-2, FINAL EIS. supra note 71, at 3.16-20, and Attachment N: Comparison of Colorado River Flows, N-26 - N-31 (for example, the EIS predicts a reduction in surplus flows from 153,000 af to 0 in 2005 - a 100% reduction - and a reduction from 534,000 at to 500,000 at in 2006 - approximately a 7% reduction). Under 90' percentile flow conditions, by contrast, the EIS predicts flow reductions ranging from 0% to 51% (resulting in an average reduction of 10%, including some years in which flows would increase). See Table 3.16-3, Id. at 3.16-21. This is a significant reduction - under 90 percentile flow conditions, these reductions in some years would exceed 500,000 af. Id. These reductions are particularly significant when one considers that the "baseline" conditions in the EIS assume continued Upper Basin, Lower Basin, and tribal water development (and corresponding exhaustion of surplus flows). If such development were to proceed more slowly than anticipated or if water use was held at existing levels, the effect of this reduction would be felt far into the future. The EIS provides no modeled data for flows below the 75' percentile, see FINAL EIS, supra note 71; given that 75% of all flows will be less than this amount, it would be useful to have reference to these data. However, one can make an educated guess: if the new criteria allow the capture of an average of 30% of a 75" percentile flow, the new criteria will all but eliminate flows below Morelos Dam in normal years. 295. FINAL EIS, supra note 69, at 3.16-12. The accuracy of this conclusion is confirmed by a comparison of the anticipated flows south of Morelos Dam under any of the alternatives. Under the revised 75"' percentile comparisons in the EIS, for example, the California alternative (which allowed the deepest drawdowns) would have cut flows to zero in 2002. By contrast, under baseline conditions, which would not have allowed these drawdowns, significant flows would have continued through 2008. Id. at 3.16-20. Water has also reached the Delta when the Gila River has flooded. 2002] THE LAST GREEN LAGOON significant implications for the future of the Delta.296 Most importantly, the new Criteria will result in an Inevitable reduction of "excess" flows (i.e., flows not utilized in the Lower Basin or Mexico). Unfortunately, those same excess flows were also responsible for the Delta's partial restoration in recent years.

IV PROPOSALS FOR SECURING WATER FOR THE DELTA

The municipalities have won the latest round of the Colorado River water wars, increasing both the size and reliability of their water supplies. Southern California's Metropolitan Water District now has a larger, more secure source of water, and options on even more. San Diego County Water Authority has its precious transfer agreement, and Phoenix, Tucson, and Las Vegas have increased the relative amount and reliability of their supplies via the Arizona Water Bank. By contrast, agriculture was the clear loser, and now faces the accelerating erosion of its water rights throughout the Lower Basin (although individual users are often well-paid for those rights). However, the biggest loser may prove to be the environment. Ironically, these first steps towards rationalizing water distribution on the Colorado have only exacerbated the problems facing the Delta. If the Delta is to survive, it will need a permanent supply of water, despite the fact that virtually every drop of Colorado River water has been claimed and what little remains has been aggressively targeted for development. Reservoir drawdowns under the new Surplus Criteria and the storage of excess water in the Arizona Water Bank will increase the volume of Lower Basin use of Colorado River water, reducing both the frequency and volume of flood flows that reach the Delta. When combined with a growing population and increases in Upper Basin use, this development guarantees that even the occasional surplus flows on which the Delta has survived will soon disappear. The inescapable conclusion is that water for the Delta must come from existing users in the Upper Basin, the Lower Basin, or Mexico. Getting this water to the Delta will not be an easy task.

296. This is not a criticism of BOR's failure to adopt one of the other two likely alternatives- the primary difference between the alternatives was merely the speed at which this reduction would occur. Either the "California" alternative or the "Six States" alternative would have had a similar impact on surplus flows, with the former reducing flows substantially more sharply, the latter reducing flows somewhat less than the preferred alternative. Id. ECOLOGY LAW QUARTERLY [Vol. 28:903

Colorado River water interests represent billions of dollars worth of productive agriculture, business, industry, and the domestic needs of tens of millions of people. Their political power is evident from their unchallenged enjoyment of enormous federal subsidies - in the form of huge irrigation systems, massive dams, gigantic aqueducts, salinity control projects, and inexpensive power.29 7 The water projects themselves, manifestations of the Reclamation vision of 'making the desert bloom,' still enjoy great cultural legitimacy in the American West.298 The events surrounding the QSA demonstrate the extraordinary tenacity with which the Colorado's water interests will hold onto their rights, and grasp for more, even in the face of undeniable scarcity and determined attempts to restrict water 2 9 9 use. Any effort to secure long-term water for the Delta will thus face significant opposition unless it can be made politically and economically acceptable to existing stakeholders. With this in mind, we evaluate four recent proposals to move water to the Delta. Ultimately, we conclude that voluntary, compensation- based solutions that do not challenge the basic structure of the Law of the River offer the greatest potential for returning water to the Delta.

A. Using FederalLaw to Coerce Change: The Pacific Institute Proposaland Defenders of Wildlife v. Babbitt

Environmental organizations have sought to use various federal environmental laws to challenge the existing allocations of Colorado River water and restore water to the Delta. Water law has traditionally been focused primarily on water rights, and has involved primarily issues of state law. As our discussion of the Law of the River demonstrates, however, federal law enjoys an ever-increasing role in water law and the administration of water rights - particularly with regard to interstate rivers like the Colorado. Similarly, federal environmental statutes such as the National Environmental Policy Act (NEPA), the Clean Water Act, the Wild and Scenic Rivers Act, and the Endangered Species Act

297. For an excellent discussion of the history of the Reclamation Era, dam and irrigation project construction, and federal subsidization of water projects, see REISNER, supra note 1. 298. See generally REISNER, supra note 1. 299. See discussion of the events leading to the Quantification settlement, supra notes 254 - 269 and accompanying text. Despite Secretary Babbitt's severe warnings that water use would be restricted, MWD, lID, and CVWD continued to jockey for position. 2002] THE LAST GREEN LAGOON

(ESA) have both direct and indirect effects on the administration of water rights and their users' ability to exercise them."' In recent years, NEPA and the ESA have played a particularly significant role in the management of the Lower Colorado and efforts to restore the Delta. This section evaluates two proposals that use federal environmental statutes as the basis for securing flows for the Delta. The Pacific Institute proposal attempted to use the NEPA process to secure flows, while a recent lawsuit, Defenders of Wildlife v. Norton, is based upon the Endangered Species Act.

1. The Pacific Institute Proposal The Pacific Institute proposal originated in a February 15, 2000 letter submitted by a coalition of environmental organizations to the Bureau of Reclamation (BOR). In their letter, the coalition proposed a set of criteria for BOR's consideration in a Draft Environmental Impact Statement (DEIS) being developed in support of the new Colorado River Surplus Criteria. 0 ' The proposal centered on a basic principle that Secretary Babbitt had stated would be applied in the development of the new Surplus Criteria - namely, that surpluses would be determined and allocated with "no net loss" of environmental benefits.0 2 The Pacific Institute proposal identified a key shortfall of the alternatives then under serious consideration for the DEIS (namely, the Six States and California alternatives)30 3 : each would have resulted in a net decline in both the frequency and the volume of the flood flows on which the Delta depends.3 4 To achieve the "no net loss" standard articulated by then- Secretary Babbitt, the proposal argued that any surplus criteria that would decrease net deliveries of water below the

300. See SAx Er AL., supra note 63, at 565-94. 301. Letter from American Rivers et al., to David Hayes, Acting Deputy Secretary of the Interior, and Robert Johnson. Regional Director. Lower Colorado River Region. Bureau of Reclamation (Feb. 15, 2000), reprinted in FINAL EIS, supra note 71, at Attachment G: Surplus Criteria Proposal by Pacific Institute. The coalition included American Rivers, Defenders of Wildlife, Environmental Defense, Friends of Arizona Rivers, Glen Canyon Institute, Grand Canyon Trust, Land and Water Fund of the Rockies, the Pacific Institute for Studies in Development, Environment, and Security, the Sierra Club, and the Sonoran Institute. 302. Id. 303. As discussed previously, the alternative that was eventually selected in the FINAL EIS - the Basin States alternative - represented a compromise between the California alternative and the Six States alternative. 304. See id. As discussed below, the Pacific Institute's criticisms are equally applicable to the Basin States alternative. ECOLOGY LAW QUARTERLY [Vol. 28:903 international border would necessarily have to guarantee a small flow of water to preserve the existing environmental values in the Delta.3"5 The coalition argued that until such a flow had been guaranteed, no "surplus" actually existed.30 6 In fact, the proposal suggested that if a "surplus" allocation caused a loss in environmental values, it was an allocation not of "surplus," but of water dedicated to environmental values, in violation of the "no net loss" standard.0 7 In the words of the coalition: No water shall be considered surplus until the Secretary has been assured, through a plan for releases of sufficient instream flows, mitigation, reservoir management, and other measures, that additional consumptive use would cause no net loss of the environmental benefits that would result if the potential "surplus" were left in the river.308 The Pacific Institute alternative proposed a modified version of the Six States alternative presented in the Draft EIS.3"9 The proposal differed from the Six States alternative in two ways. First, it increased the amount Lake Mead could be drawn down, 310 guaranteeing a flow of at least 32,000 acre-feet for the Delta before any other uses in the Lower Basin were satisfied in any year when a surplus was declared.' Second, in heavier flow years meeting specified release criteria, the Delta would receive a minimum flow of 260,000 acre-feet before deliveries could be made to other Lower Basin users.312 After the introduction of the Basin States alternative, the Pacific Institute coalition submitted a revised proposal based on the surplus values, reservoir levels, and allocation schemes proposed in the Basin States alternative. 313 Although no other alternatives met the Secretary's commitment to the "no net loss" principle, BOR rejected the Pacific Institute proposal in the Final EIS, claiming that environmental impacts in the Delta were beyond the proper scope of its consideration.1 4 BOR justified its response with two

305. Id. 306. Id. 307. Id. 308. Id. at 3. 309. Id. at 5-7. As discussed below, a comparison of the two reveals few substantive differences aside from the allowance for Delta Flows. 310. See idLPresumably, this allowed flows to the Delta without significantly affecting deliveries in the U.S. 311. Id. at 5. 312. Id. at 6. 313. See FINAL EIS, supranote 71, at Attachment G. 314. See idLat 3.16-1 - 3.16-4. 20021 THE LAST GREEN LAGOON basic arguments. First, BOR argued that Mexico alone manages all water that passes the international boundary1 5 and is ultimately responsible for whether water reaches the Delta. Second, BOR claimed that in the absence of a treaty amendment it lacks the authority to deliver (except in flood conditions) any water to Mexico beyond that required by the Mexico-U.S. Water Treaty (1.5 maf and 200,000 of surplus, when available).316 BOR's arguments continue a tradition among U.S. federal agencies of denying responsibility for impacts in Mexico from river operations. For example, BOR's 1996 Biological Assessment,317 Fish & Wildlife's 1997 Biological Opinion,3 8 and the ongoing Lower Colorado Multi-Species Habitat Conservation Plan3 19 have each denied that impacts in Mexico are relevant in federal decision-making. BOR's position is disingenuous at best. The United States bears considerable responsibility for the elimination of flows to the Delta because the U.S. currently uses approximately 90% of the water that once flowed to the Delta.' Moreover, in the absence of flood conditions, the U.S. controls the release of water into Mexico with incredible precision. BOR correctly pointed out that even if more water actually crossed the U.S. border, the Mexico-U.S. Water Treaty does not prevent Mexican farmers from diverting this water for human consumption. 2 1 While the Treaty identified "fishing and hunting" as beneficial uses, they are low priority;32 the Delta is legally the last in line for Mexican water. Although this argument is perhaps the most powerful one advanced against the release of additional water for the Delta, it completely ignores the reality of the water diversion system in Mexico. Mexico has little or no storage capacity on the Colorado River. Mexico's only dam on the Colorado, Morelos Dam, has

315. Seeid. at3.16-1. 316. See id. at 3.16-1 - 3.16-4: see also DEIS, supranote 180, at 2-24. 317. U.S. Bureau of Reclamation, Final Biological Assessment Prepared for U.S. Fish & Wildlife Service and Lower Colorado Multi-Species Conservation Program (Aug. 1996), availableat http://www.lc.usbr.gov/-g2O0O/assess/. 318. U.S. Fish & Wildlife Service, Biological and Conference Opinion on Lower Colorado River Operations & Maintenance (1997). 319. See Lower Colorado Multi-Species Conservation Program, available at http://www.lcrrnscp.org. 320. As discussed supra in Section II.A, the U.S. claims rights to a minimum of 15 maf by the terms of the Colorado River Compact and the Mexico-U.S. Treaty; Mexico receives only 1.5 maf. 321. See FNALEIS, supra note 71. at3.16-1. 322. See Frank S. Wilson, A Fish Out of Water: A Proposal for Intemational Iistream Flow Rights in the Lower Colorado River, 5 COLO. J. INT'L ENvTL. L. & POL'Y 249, 266 (1994). ECOLOGY LAW QUARTERLY [Vol. 28:903 practically no storage capacity because it was designed as a diversion dam, not as a storage reservoir. 23 Instead, Mexico relies on U.S. reservoirs to provide the storage and timed releases of its treaty water.324 As a result, Mexico can only divert a small quantity of any excess flows that cross the border at any given time, and can only divert them if they are timed correctly. The water that reaches the Delta via the mainstream channel is typically spring floodwater - water that Mexico cannot store, cannot control, and cannot use because it does not arrive during the prime irrigation season. The Surplus Criteria will tend to reduce the frequency and volume of these spring flood flows (by storing them in reservoirs upstream); thus, the Surplus Criteria reduce the only form of "excess flow" likely to reach the Delta. BOR also argued that it lacks the discretion to deliver additional water to Mexico for purposes of protecting the Delta.32 However, it seems only fair to point out that BOR has been delivering "additional" water to Mexico for many years - indeed, the only reason the Delta has received any water in recent years is because BOR has released, and Mexico has failed to divert, water from BOR reservoirs. Under NEPA, BOR must consider all environmental effects of its proposed action in its EIS, and "rigorously explore and objectively evaluate all reasonable alternatives" to its proposed actions, including "reasonable alternatives not within the jurisdiction of the lead agency. "326 Similarly, BOR must "include appropriate mitigation measures not already included in the proposed action or alternatives."327 By BOR's own admission, changing the operations of its reservoir system will impact the frequency and volume of flows to the Delta. 28 The fact that Mexico's allocation of excess flows is beyond BOR's direct control is absolutely irrelevant to BOR's proper consideration of the impacts of its action on the Delta and its consideration of reasonable mitigation measures to prevent these impacts. While the Final EIS contains a very nice

323. Diversion dams - like Imperial Dam and Morelos Dam - are constructed primarily for the purpose of diverting water from a stream into an aqueduct or canal; typically, they are smaller, low dams that have little or no capacity in their reservoirs. By contrast, storage dams - like Hoover Dam and Glen Canyon Dam - tend to be large, high dams with substantial reservoir capacities. 324. See discussion of the process of Mexico-U.S. river operations on the IBWC's website, available at http://www.ibwc.state.gov/wad/body-colorado_river.htm; see also FINAL EIS, supra note 71, at 1-19, Table 1-2. 325. See FINAL EIS, supra note 71, at 3.16-1. 326. 40 C.F.R. § 1502.14 (2001). 327. Id. 328. SeeFiNAL EIS, supra note 71, at 3.16-20 and Attachment N. 2002] THE LAST GREEN LAGOON description of the many species and habitat areas south of Morelos Dam that will be affected by the new Surplus Criteria,32 9 the evaluation of potential impacts is for the most part limited to a determination that ". . .the change in benefits to species and habitat would likely be insignificant. The riparian vegetation existing along the Colorado River corridor in Mexico is extremely resilient."330 BOR's belief in the "resilient" nature of this riparian vegetation may help explain the EIS's apparent understatement of human impacts on the Delta. In describing the effects of the historic reductions in Colorado River flows on the Delta, BOR noted only that they had "affected the ecosystem of the delta."3 3 ' However, BOR's belief is also quite clearly contradicted by a later admission that the majority of the existing riparian vegetation was restored as the result of surplus flows (flood events)332 - precisely what the new Surplus Criteria will reduce in both frequency and volume. Unfortunately, the Pacific Institute proposal is now essentially moot, as Secretary Babbitt, before leaving office, issued a Record of Decision conftnming a continued BOR policy of ignoring the impacts of its U.S. reservoir operations on Mexico and the Delta Whatever the merits of the Pacific Institute proposal, it had little chance of succeeding in the high-pressure context of the Surplus Criteria negotiations. Rather than taking water away from desperate water interests, BOR could - and did - manipulate the rather flimsy requirements of NEPA. Actual implementation of the Pacific Institute proposal against the wishes of the Lower Colorado water users would require far greater political support.

2. Defenders of Wildlife v. Babbitt The Interim Surplus Criteria EIS is not the only setting in which BOR has argued that it has limited discretion to protect the Delta. In the mid- 1990s, a group of federal agencies and environmental interests began to develop the Lower Colorado River Basin Multi-Species Conservation Program (MSCP) as part of an Endangered Species Act consultation on the Lower

329. See Id. at 3.16-23 - 3.16-41. 330. 1& at3.16-18. 331. d. at 3.16-23. 332. See id. at 3.16-24. ECOLOGY LAW QUARTERLY [Vol. 28:903

Colorado River.33 3 Four endangered fish species (the Colorado squawfish, the humpback chub, the bonytail chub and the razorback sucker), as well as four endangered bird species (the brown pelican, the bald eagle, the peregrine falcon, and the Southwestern willow flycatcher), are either residents or transients in the area.334 While the MSCP was intended to provide a forum within which the ESA concerns on the Lower Colorado could be peaceably resolved, environmental groups ended their participation when BOR refused to consider impacts on the Delta in the MSCP process. 35 In June 2000, these groups challenged BOR's justification for not considering the Delta in the MSCP process by filing Defenders of Wildlife v. Babbitt.136 The suit claims that BOR, Fish and Wildlife Service (FWS), National Marine Fisheries Service (NMFS), and the Department of Commerce violated § 7 of the ESA because they failed to consider the effects of their actions on endangered species in the United States and in Mexico that depend on the Colorado River and the Delta for critical habitat. 337 These species include ones that currently exist only in Mexico, including the totoaba, a species of fish, and the vaquita, a small porpoise that is perhaps the most endangered 338 in the world.

333. See Lower Colorado Multi-Species Conservation Program, supra note 319. The environmental organizations included Defenders of Wildlife, the Center for Biological Diversity, Environmental Defense Fund, and American Rivers. See Notice of Violations of the Endangered Species Act Relating to Lower Colorado River Activities, Letter from Bill Snape et al. to Bruce Babbitt et al. (Dec. 14, 1999). 334. See Defenders of Wildlife v. Norton, No. 1:00CV01544, 45 (D.D.C. filed June 28, 2000). 335. See Regional: Defenders of Wildlife, Others File 60-Day Endangered Species Act Notice Challenging Operation of Lower Colorado River, 4 W. WATER L. & POLY REP. 98 (Feb. 2000). 336. See Defenders, supra note 334. The case name has since been changed to Defenders of Wildlife v. Norton (following the change in administration). 337. Id. q 1. In recent years, the ESA has become a potent force in changing water rights in the West. The ESA authorizes the Secretary of the Interior to list a species as threatened or endangered based on a number of factors. Once a species is listed, the Secretary has a duty to designate critical habitat that is necessary for that species' survival. 16 U.S.C. § 1533. Under § 7 of the ESA, each federal agency must ensure that "any action authorized, funded, or carried out by such agency. . . is not likely to jeopardize the continued existence" of a listed species nor "result in the destruction or adverse modification of habitat of such species...." 16 U.S.C. § 1536(a)(2). The agency determines whether its action is likely to have such consequences by "consulting" with either FWS or NMFS, depending on the species involved. 50 C.F.R. § 402.01(b). Section 8 of the ESA provides that the Secretary "shall" encourage foreign countries to conserve critical species and to encourage "the entering into of bilateral or multilateral agreements with foreign countries to provide for such conservation." 16 U.S.C. § 1537. 338. See Defenders, supranote 334, [ 46, 52. 2002] THE LAST GREEN LAGOON

Defenders of Wildlife v. Babbitt springs from BOR's dismissal of evaluations by several federal agencies detailing the effects of the decline of perennial fresh Colorado River water on listed species in the Delta.3 39 First, NMFS advised BOR in June 1996 that its operation of lower Colorado River dams modified flows into the Delta, contributing to the decline of the totoaba population.3 4 ° Consequently, NMFS advised BOR that it must consider the dams' impact on the totoaba in its final biological assessment (BA). 4 ' Nevertheless, in its final BA, BOR considered only impacts on species within the territorial borders of the United States.3 42 Despite its earlier advisement, NMFS avoided a confrontation with BOR by reversing its earlier position. It decided there was no need for further consultation because the totoaba exists only in Mexico and BOR does not have the discretion to control water use in Mexico. Second, FWS made a 1997 finding that that BOR's discretionary management of the Lower Colorado dams were likely to jeopardize a number of listed species, including the Southwestern willow flycatcher. 344 Like NMFS, however, FWS also agreed that BOR need not consider the impact of its actions 345 on listed species in Mexico. Defenders of Wildlife raises two separate legal questions. First, does the ESA apply when a federal agency acts outside the borders of the United States? This question was at least marginally at issue in Defenders of Wildlife, at least insofar as the decision to release or not to release water to Mexico can be seen as action outside of the United States. The more critical extra-territorial question, however, is whether domestic application of the ESA to the development of the Lower Colorado River Basin Multi-Species Habitat Conservation Plan requires consideration of the international impacts of BOR's activities. Does the ESA require federal agencies to engage in consultation regarding the impacts of their actions on species in Mexico? Defenders of Wildlife also implicitly raises a separate legal issue: whether federal agencies must consider the impact that the release of flows to Mexico and the Delta would have on protecting listed species within the boundaries of the United

339. See id. 91%49-61. 340. Id. 9149. 341. Id. 342. See i&t q 52. 343. See icL 153. 344. See d. 91 55-56. 345. See A. 55. ECOLOGY LAW QUARTERLY [Vol. 28:903

States. Many endangered species in the Lower Colorado River - Delta region migrate freely between the U.S. and Mexico; as a result, it makes a great deal of sense for agencies seeking to protect listed species in the United States to ensure that habitat in Mexico is conserved or enhanced. 46 In essence, Defenders of Wildlife is an effort to use the ESA to force United States agencies to recognize that the Lower Colorado River and Delta is a single ecosystem and that it is thus inappropriate to consider the environmental impacts of federal agency actions on less than the totality of the ecosystem. As the work of Ed Glenn and others has shown, the area below the border contains five times as much critical riparian habitat as does the Lower Colorado within the United States. 47 It makes ecological sense to consider the impact of actions taken in the United States on habitat that spans the U.S.-Mexican border. The potential consequences of the Defenders of Wildlife suit for Lower Colorado River operations could be profound. Should the suit succeed, it will require that BOR consult with NMFS and FWS both on current operations and through the forthcoming MSCP process. Under Section 7 of the ESA, federal agencies must "consult" with FWS or NMFS in order to insure that the agencies' actions not "jeopardize the continued existence of any endangered species" or "result in the destruction or adverse modification of [critical] habitat of such species.. ."." The agency submits data to FWS or NMFS on which FWS or NMFS bases its decision as to whether the agency action may potentially violate Section 7. After review of the data, FWS or NMFS issues a biological opinion that assesses the impact of the agency's proposed action on the species.349 If FWS or NMFS finds

346. Somewhat ironically, environmentalists are not the only ones arguing that under the ESA federal agencies must consider impacts in Mexico. In May 2000, the Southern Arizona Home Builders Association fied suit against FWS arguing that the "critical habitat" for the pygmy owl must include a consideration of the habitat that the bird has across the Mexican border. See Howard Fischer. Home Builders Sue to Block Owl Rules, ARIz. DAILY STAR, May 16, 2000, at Al. In September 2001, the U.S. District Court of Arizona held that it was permissible for FWS to consider the pygmy owl population in Arizona a "distinct population segment" because the international borders result in differences in management of the species. National Ass'n of Home Builders v. Norton, No. CIV-00-0903-PHX-SRB, at 8 (D. Ariz. filed Sep. 21, 2001) (order denying summary judgment). For purposes of listing a species as endangered, the court found that the question "is whether the species is facing extinction here in the United States, not whether the population in Mexico is plentiful." Id. 347. See Francisco Zamora-Arroyo et al., Regeneration of Native Trees in Response to Flood Releases from the United States into the Delta of the ColoradoRiver, Mexico, 49 J. ARID ENvTs 49 (2001). 348. 16 U.S.C. § 1536(a)(2) (1994). 349. See 16 U.S.C. § 1536(b) (1994). 2002] THE LAST GREEN LAGOON that the action would either jeopardize the species or adversely affect the species' habitat, then the Secretary of the Interior must suggest "reasonable and prudent alternatives" to the action that would avoid violating Section 7.350 One result of consultation could be a determination that only the release of additional flows will adequately protect the listed species and their habitat. Such a result would be a smashing victory for the environmental organizations. But this is not the only possible, or even the most likely outcome. Consultation would prompt a search for "reasonable and prudent alternatives" to protect the listed species.3 5' With respect to the listed species that are residents or transients of the Lower Colorado River region in the United States, alternatives might include habitat modification programs along the U.S. reach of the river. However, with respect to those species that are not found within the United States, the search for a reasonable and prudent alternative could prove extraordinarily difficult. Particularly in an administration unhappy with the recent broad application of the ESA, 52 the Secretary might very well propose alternatives short of invalidating the new Surplus Criteria. While the Secretary's ruling would be subject to judicial review, "[sicores of opinions establish the principle that courts are not to substitute their judgment for that of an agency in reviewing [Section 7] decisions that involve substantial agency expertise."3 53 Defenders of Wildlife may succeed in requiring agencies to satisfy the procedural step of consultation. However, it will probably fail to coerce a change in the Surplus Criteria. The suit also underlines other potential dangers associated with a forced approach under the ESA. While the ESA has proven to be a powerful tool for environmental protection in other contexts, the Act itself has come under increasing attack precisely because of its effectiveness in stopping environmentally 3 5 harmful projects . 1 When the economic and political pressures associated with a given project have been sufficient, Congress has been willing to simply exempt a project from the ESA. A

350. See 16 U.S.C. § 1536(b)(3)(A) (1994). 351. Id. 352. See Mitch Tobin, Bush Administration Believes Owl Habitat Victory to Lead to Law's Changes, ARmz. DAILY STAR, Nov. 9, 2001, available at 2001 WL 30265472. 353. Mary Christina Wood, Reclaiming the Natural Rivers: The Endangered Species Act as Applied to Endangered River Ecosystems, 40 ARIZ. L. REV. 197, 255 (1998). 354. See generally Frederico M. Cheever, An Introduction to the Prohibition Against Takings in Section 9 of the Endangered Species Act of 1973: Learning to Live with a Powerful Species ProtectionLaw, 62 U. COLO. L. REV. 109 (1991). ECOLOGY LAW QUARTERLY [Vol. 28:903 prime example, which has become the foundation for all ESA litigation, is the Tellico Dam case.3"' While environmentalists blocked the dam construction for some time, the success of their efforts led Congress to eventually exempt the project from the ESA.3 6 Similarly, if the Defenders of Wildlife plaintiffs prevail, Congress might simply exempt the Lower Colorado from the ESA. The political and economic interests at stake on the Lower Colorado are very powerful. As we have noted, the Colorado supplies water to more than 30 million people, and irrigates millions of acres of productive farmland." 7 The wars over its waters have raged for nearly a century, and involve some of the most politically powerful interests in the western United States. Billions, or perhaps trillions, of dollars are at stake any time the allocation of the river is put in controversy. While the ESA remains a powerful tool, it might be unable to handle this kind of political pressure." 8

355. Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978). Another excellent example of this phenomenon was the infamous 1995 "Salvage Logging Bill," which allowed "emergency" salvage logging in fire-damaged forests and exempted those activities from the ESA. Congress passed the bill as a rider to the unrelated 1995 Rescissions Act, Pub. L. No. 104-19, 109 Stat. 194 (1995). 356. See Comment, Supreme Court Protects Snail Darterfrom TVA; Court Poised to Weaken Endangered Species Act, 8 ENVTL. L. REP. 10154 (1978). 357. See Pitt et al., supra note 2. 358. Indeed, despite the fact that we remain devoted fans of the Endangered Species Act, the authors believe that the continued and growing reliance on the ESA by certain environmental groups as the "workhorse" for litigating controversial issues is a potentially dangerous strategy, both politically and legally. In our view, not every case is appropriate for the application of the ESA, which is undoubtedly the "biggest gun" in the environmental arsenal. At present, the ESA is frequently used not to protect listed species, but instead to block popular developments by "species shopping" in a particular area to fmd a listed species. The use of ESA in this manner has led - not unjustifiably - to a growing cynicism about the real motivations behind endangered species protection. See Robert A. Williams, Jr., Large Binocular Telescopes, Red Squirrel Pinatas, and Apache Sacred Mountains: Decolonizing Environmental Law in a Multicultural World, 96 W. VA. L. REV. 1133 (1994) (discussing the use of an endangered squirrel to block a research telescope project). The often painful results of these lawsuits - which are often brought by national groups but are opposed by local communities - have led to growing sympathy and political influence for "Wise Use" groups and property rights advocates who would prefer to see the ESA limited or eliminated. See William Kevin Burke, The Wise Use Movement: Right-Wing Anti-Environmentalism, PUBLIC EYE MAG., June 1993, available at http://www.publiceye.org/magazine/v07n2/wiseuse.html. In turn, this has led to attempts in Congress to curtail application of the ESA, or alternatively has led to "tough case, bad law" court decisions that have limited the effectiveness of the ESA in other settings where it might have been more appropriately - and effectively - employed. A recent example is the devastating ESA loss in Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001), which held that for purposes of the ESA, hatchery fish are identical to wild native salmon. The ruling came after years of contentious litigation in which the endangered coho salmon had been repeatedly 2002] THE LAST GREEN LAGOON

B. Using the Market to Secure Waterfor the Delta: The Sonoran Institute and Clinton EngineeringProposals

Following the apparent failure of the Pacific Institute proposal in BOR's EIS process, some of the members of the Pacific Institute coalition began exploring alternative approaches to securing a source of water for Delta restoration. Given the political pressures on the Colorado River, this exploration focused on identifying a source of water that would be more politically palatable to the gridlock of water interests on the Lower Colorado. The first proposal to emerge came from the Sonoran Institute in the fall of 1999.

1. The Sonoran Institute Proposal

The Sonoran Institute proposal developed out of the efforts of a coalition of environmental organizations, Delta communities, and scientists who have been studying and working to restore the Delta region.3"9 The Sonoran Institute, a non-profit conservation organization, had been working with other groups in the Delta for several years through its Borderlands Initiative, which uses international cooperation between border communities to improve environmental values in the international border region.36 0 The Institute sought to use a multifaceted, community-based, internationally cooperative approach in order to help the communities of the Delta (consisting in large part of the Cucupa Indian Tribe) by restoring

used to block logging operations, road construction, irrigation diversions, and other projects - doubtless to some environmental benefit. The result of the ruling, however. has been the removal of the legitimately endangered coho salmon from listing, a widespread and deliberate assault on coho habitat, and a serious threat to the protection of salmon stocks throughout North America. See Rebecca Claren, Ruling Ripples Through Salmon Country, HIGH COUNTRY NEWS, Dec. 3, 200 1, at 33. We do not mean to suggest that the ESA should not be used to protect salmon or other species -we merely suggest that if it is used too aggressively or disingenuously, environmental interests risk losing not just their own case, but creating damaging precedents that will hamper future litigation efforts and potentially endanger the very species that the statute is designed to protect. Because of the enormous economic and political pressures on the Lower Colorado, we suggest that the use of the ESA to benefit the Delta could pose just such a risk. 359. Participants in these efforts have included many of the groups supporting the Pacific Institute proposal, noted scientists and advocates like Jennifer Pitt, Daniel Luecke, Michael Cohen, Edward Glenn, Mark Briggs, and Carlos Valdes-Casillas (among many others), as well as representatives of the Cucupa Indian Tribe in Mexico, the Mexican government, and local communities (personal knowledge of the authors; Mr. Culp has been involved with these efforts). 360. For more information, contact the Sonoran Institute at 7650 E. Broadway, Suite 203, Tucson, AZ 85710, phone: (520) 290-0828, e-mail: [email protected]. ECOLOGY LAW QUARTERLY [Vol. 28:903 the Delta ecosystem and by reestablishing fisheries, agriculture, and other locally beneficial economic activities. 36' The Institute participated in the watershed 1999 EDF study, which concluded that flows of only 32,000 acre-feet annually, combined with occasional flows of 260,000 acre-feet, would suffice for the preservation and restoration of the critical regions of the Delta." 2 Despite the small amount of water required, many participants believed that the significant political and economic power of the Colorado River water users would defeat any proposal to move 3 63 water to the Delta over their objection. The Sonoran Institute proposal envisioned acquiring water for the Delta via a series of voluntary purchases and transfers of water. 6" Conservation interests would buy up water rights from irrigators in the United States, retire those water rights, and then transfer the water through the reservoir system for instream flow to the Delta.3 65 Because participation in such a program would be entirely voluntary, the Institute believed that this approach would be less likely to upset the current regime of water interests - as long as a non-controversial source could be identified.6 The Sonoran Institute rejected Mexico as a potential source of water for both political and equitable reasons. In the Institute's view, the historical inequities associated with the division of the Colorado between the U.S. and Mexico in the Mexico-U.S. Water Treaty, when combined with projected future shortages, groundwater overdraft, increases in urban demand, and the limitations of Mexican domestic law, all worked against

361. Id. 362. See LUECKE. supranote 19, at 42. 363. Personal communications with Luther Propst, Executive Director, Sonoran Institute, & Steve Cornelius, Director of Borderlands Program, Sonoran Institute, Tucson, AZ (2000-2002). 364. One of the authors (Peter Culp) assisted in the development of this proposal by drafting a 1999 report (see CULP, infra note 365) to the Sonoran Institute discussing the Law of the River and the limitations that it would impose on water transfers to the Delta. In collaboration with the Sonoran Institute, an expanded and updated version of this report was published as a working paper by the Udall Center for Studies in Public Policy in Tucson, Arizona in 2001 (see Culp, supra note 123). The Udall Center also funded the development of a summary version of the original Sonoran Institute report for the benefit of participants at the September 2000 symposium, ... to the Sea of Cortes: Nature, Water, Culture, and Livelihood in the Lower Colorado River Basin and Delta, in Riverside, California. 365. See generally Peter W. Culp, Feasibility of Purchase and Transfer of Water for Instream Flow in the Colorado River Delta, Mexico: A Preliminary Investigation, Sonoran Institute Report (Nov. 1999) (unpublished report, on file with authors). 366. Cornelius & Propst, supra note 363. 2002] THE LAST GREEN LAGOON

Mexico as a practical, long-term source of Delta water.367 For the political and practical reasons that we have discussed earlier, the Institute proposal also rejected the Upper Basin, California, and Nevada as potential sources.3 68 Instead, the Institute targeted southern Arizona - in particular, the Wellton-Mohawk Irrigation and Drainage District near Yuma, Arizona.3 69 Many efforts to find water for the Delta have focused on water used by farmers in the Wellton-Mohawk Irrigation and Drainage District (WMIDD) because (1) the district controls a lot of water (440,000 acre feet), (2) farmers pay only minimal prices for water (as low as $3 an acre foot), and (3) they grow relatively low economic value crops.3 "° The Institute also approached the Colorado River Indian Tribes in hopes of forging a cooperative arrangement 3 between them and the Cucupah people in the DeltaY.' The Institute proposal reasoned that the cost of buyouts of private water rights in the U.S. would be less than the gains that would result from the dilution and/or elimination of additional salt contamination from the Colorado River. 72 In fact, buyouts of water from Wellton-Mohawk would reduce373 the salt contributions of one of the largest contributors to river salinity.7 4 Combined with the economic benefits of the restoration of the Delta fishery and local Delta communities, the Institute argued that their proposal would result in net economic benefits to both 375 countries. The Institute recognized that an international agreement would be necessary to implement such a program, due to the extensive restrictions on water transfers in the Law of the River,

367. See CULP, supra note 123, at 41. 368. See icl at 40-4 1. 369. See id.at 41-44. 370. See Pitt et al., supra note 23. 371. Cornelius & Propst, supra note 363. 372. See CULP, supra note 123, at 42-44. 373. As discussed in Section III.C, supra, the dilution effects of retaining water in the river can result in substantial economic savings. 374. From a salinity perspective, Wellton-Mohawk is one of the most ill-conceived irrigation projects ever developed. Philip Fradkin has called it "a tribute to the persistence of the Reclamation Ethos through one disaster after another." FRADKIN, supra note 9. at 302. Due to the Project's extremely poor drainage and the presence of a super-saline aquifer close to the surface, the Project farmlands rapidly became saturated with ponded saltwater. Congressional bailouts have led to the installation of an extraordinarily costly tile drain system throughout the Project, as well as groundwater pumps that remove saltwater from the saline aquifer to keep the water table below the root zones of plants. Unfortunately, much of this high-salinity water - either through seepage or return flows - makes its way into the Colorado River. See Ad. 375. See Culp, supra note 123, at 44. ECOLOGY LAW QUARTERLY [Vol. 28:903 the limitations of the Mexico-U.S. Water Treaty, and the difficulty of enforcing instream flows under Mexican domestic law.7 6 Since the fall of 2000, the Institute has actively sought the support of 3 7 both the U.S. and Mexico for such a program. 1

2. The Clinton EngineeringProposal

The Fall of 2001 also saw the emergence of another purchase-and-transfer based Delta restoration program. In September 2000, a natural resources engineering firm, Michael Clinton Engineering (MCE), submitted a report to the Packard Foundation that investigated methods of supplying water to the Delta (the "Clinton proposal")78 Spearheaded by Michael Clinton, who is a former Interior Department official and former general manager of the Imperial Irrigation District, and Malissa McKeith, a Los Angeles attorney, the Clinton proposal advanced two alternative solutions to the Delta water supply problem. First, MCE suggested retiring marginal agricultural land in Mexico and its associated water rights, and using the water savings to benefit the Delta region.37 9 Second, MCE proposed a complex water-trading scheme, in which land and water rights purchased in Mexico would be exchanged for increased deliveries of high salinity water from the U.S. and improved water quality in the primary Mexico-U.S. Water Treaty deliveries at Morelos 3 0 Dam. 8 Under its first proposal, MCE planned to initiate consultations with the Comision Naclonal de Aguas (CNA), a Mexican water agency that is essentially BORs counterpart in Mexico, which is responsible for managing water rights and irrigation in the Mexicali Valley.3 8 ' Working closely with CNA, MCE intended to identify marginal agricultural lands in the Mexicali Valley region that could be purchased, and identify an entity to purchase and hold those rights (for example, a non- profit organization like The Nature Conservancy, the Sonoran Institute, or a Mexican equivalent).38 2 Lands suitable for wetland habitat would be restored using the property's corresponding

376. See id. at 36-37. 377. Cornelius & Propst, supra note 363. 378. Michael Clinton Engineering, Proposal for Packard Foundation: Water Augmentation for the Colorado River Delta, Sept. 14, 2000 (unpublished proposal) [hereinafter "Clinton Proposal-l. 379. Id. at 2. 380. Id. 381. Id.at4-5. 382. 1& at 5. 2002] THE LAST GREEN LAGOON water rights. For lands unsuitable for wetland habitat, the purchased water rights could be severed from the land and then routed through drainage systems to the Delta."'3 The second MCE proposal suggested purchasing land and water rights in the same manner as described above. Rather than delivering this water directly to the Delta, however, it would be deducted from the U.S. delivery obligation in the mainstem at Morelos Dam." To compensate for the deduction, an identical volume of increased amounts of high salinity agricultural wastewater would be diverted into the MODE canal at Yuma (the bypass drain that delivers water to the Cienega de Santa Clara).385 This water would then be delivered to the Delta." 6 The end result would decrease overall deliveries of water to Mexico via the mainstem Colorado. The water delivered, however, would have moderately reduced levels of salinity.3 " Overall, Mexico would receive the same amount as it is guaranteed under the Mexico-U.S. Water Treaty - 1.5 maf - but high salinity water that would otherwise contaminate their mainstem entitlement would simply be isolated from the river north of the border, and routed directly to the Delta.2 MCE received a preliminary grant from the Packard Foundation, and subsequently combined forces with the Sonoran Institute to investigate which of the proposed short-term alternatives for Delta restoration was most feasible. Their joint efforts culminated in a report to the Packard Foundation in May of 2001. 89 In the report, MCE's first alternative is only partially revised. The report identifies an area of marginal farmland to the west of Mexicali where approximately 2,000 hectares of marginal

383. These transfers would use the existing system where possible; however, new drainage construction might be necessary in some areas. Informal presentation by Malissa McKeith and Michael Clinton at the... to the Sea of Cortes: Nature, Water, Culture, and Livelihood in the Lower Colorado River Basin and Delta conference in Riverside, California (Sept. 29, 2000) (one of the authors, Mr. Culp, was present at this informal meeting). 384. See Clinton Proposal, supra note 378. at 6. 385. See id. 386. Delivery at any point other than the Cienega would require the construction of a new diversion canal to carry water from the MODE canal to the mainstem or to existing drainage canals that empty into the mainstem. See id. at 8. 387. Id. 388. Id. at 6-7 389. Michael Clinton Engineering et al., Immediate Options for Augmenting Water Flows to the Colorado River Delta in Mexico, Prepared for The David and Lucile Packard Foundation, May 2001 [hereinafter "MCE report"], available at http: //www.sonoran.org/pdf/Colorado-river.pdf. ECOLOGY LAW QUARTERLY [Vol. 28:903 agricultural land would be purchased from willing sellers, producing approximate 15,000 af per year that could be dedicated to Delta restoration.390 CNA would then be requested to deliver this retired water and any unused over-deliveries to lands targeted for restoration under the proposal.3"9 ' MCE has significantly revised its second alternative. Under the revised version, MCE would construct a canal connecting the Wellton-Mohawk bypass drain (the MODE canal) to the existing Plan Ayala drain in Mexico.392 Brackish drainage water from irrigation districts near Yuma would be routed through the Wellton-Mohawk drain, across the connector, and down the Plan Ayala drain to a low-lying, marshy area of irrigated lands that CNA has targeted for retirement. 93 This area, lying east of the Colorado/Rio Hardy confluence, and slightly to the north and west of the Cienega de Santa Clara, abuts existing Delta wetlands; the flooding that would occur following the retirement of the lands and the re-routing of Yuma drain water would allow for the restoration of significant amounts of wetland habitat. 94 However, at least 30,000 af of the drain water that would be used in this alternative is water that is currently used to meet the 1.5 maf U.S. treaty obligation to Mexico.3 95 Consequently, additional releases of water from Lake Mead would be required. Although this would offer the added benefit of decreasing salinity levels in the river by increasing overall flows south of Lake Mead

390. Id. at 23. The first alternative additionally provides that this water could be combined with "operational over-deliveries" from U.S. Colorado River operations. Id. Operational over-deliveries result from the fact that there is an inherent delay between the time that a Lower Colorado water user must request the release of water from Lake Mead (at Hoover Dana), and the time that this water actually arrives at the user's point of diversion. Users must thus predict what their water needs will be in advance; occasionally, by the time water is released from the dam and travels downstream to the point of diversion, it is no longer needed or cannot be diverted, and thus flows on downstream unused unless another user will absorb it. These "over-deliveries" are generally not credited against the U.S. Treaty obligation to Mexico, and thus are in addition to the 1.5 maf that the U.S. is legally obligated to deliver. See id. at 25. Operational over-deliveries are expected to average around 30,000 af per year, and frequently cannot be absorbed by Mexican agricultural users. Id. at 23. As the MCE report recognizes, however, operational over-deliveries do not represent a particularly secure source of water for the Delta, as they can frequently be absorbed by irrigators in Mexico. See id. In fact, the U.S. plans to reduce or eliminate these over-deliveries as a part of the canal-lining program along the All- American Canal. See id. 391. Id. at 23-24. 392. Id. at 24. 393. Id. 394. Id. 395. The remainder is derived from groundwater pumping in the 242 Well Field near Yuma; this pumping would also be increased under the proposal. Id. at 25. 2002] THE LAST GREEN LAGOON and eliminating saline inflows from the Yuma drain water,396 it would nevertheless require a reduction in U.S. uses to compensate for the increased Mexican deliveries.39 Since the publication of the report, the MCE/Sonoran Institute effort (MCE/SI) has assembled an advisory group to oversee efforts to implement either or both of the alternatives. MCE/S is currently laying the groundwork for the purchase or lease of Mexican water rights for instream use in the Delta.398 Of MCE's two proposed options, we believe that purchasing land and water rights in Mexico as proposed in the first alternative is the most likely to succeed in getting water to the Delta, at least in the immediate term. The second alternative may well fall victim to the political catch-22 that plagues the international debate over the waters of the Lower Colorado: the changes to the proposal in favor of Mexico have rendered it unfavorable to users in the U.S. As originally proposed, the second MCE proposal essentially ignored the historical context associated with salinity issues on the Lower Colorado. Traditionally, the U.S. has claimed that the Mexico-U.S. Water Treaty makes no express guarantees as to the quality of water delivered at the border and that the burden of 399 salinity control should fall on Mexico. The salinity issue came to a head in the 1960s when the Wellton-Mohawk Irrigation and Drainage District began to pump high salinity drainage water into the Colorado River and excess flows to Mexico ended as the U.S. began to fill the reservoir behind Glen Canyon Dam.4" The average annual salinity of the water received by Mexico surged from 800 ppm to 1,500 ppm, causing enormous damage to Mexican farms in the Mexicall Valley.40 1 Ten years of sometimes bitter negotiations led to the 1973 IBWC Minute No. 242, which obligates the U.S. to deliver water to Mexico that has "an annual average salinity of no more than 115 p.p.m. ± 30 p.p.m.... over the annual average salinity of Colorado River waters which arrive at Imperial Dam ....402

396. Id.at 28, 35-36. 397. See id. at 25. 398. Cornelius & Propst, supranote 363. 399. See FRADKIN, supra note 9, at 301-03. 400. See Herbert Brownell & Samuel D. Eaton, The ColoradoRiver Salinity Problem with Mexico, 69 AM. J. INT'L L. 255, 256 (1975); TAYLOR 0. MILLER ET AL., THE SALTY COLORADO (1986); David A. Gantz, United States Approaches to the Salinity Problem on the Colorado River, 12 NAT. RESOURCES J. 496 (1972). 401. See Brownell & Eaton, supra note 400, at 256. 402. United States-Mexico Agreement on Colorado River Salinity, Minute No. 242 of the IBWC: Permanent and Definitive Solution to the International Problem of the ECOLOGY LAW QUARTERLY [Vol. 28:903

Through this formula, the U.S. committed itself to provide Mexico with water the salinity of which is roughly equivalent to the water received by farmers in the Imperial Irrigation District. Minute 242 was achieved after bitter dispute between the two sides, and has left a legacy of hard feelings, particularly on the Mexican side.40 3 Given this context, the second MCE proposal would almost certainly have been unacceptable to Mexico because it would have allowed the U.S. to shift part of its Mexico-U.S. Water Treaty burden to maintain Colorado River water quality to Mexico. Under the proposal, Mexico would essentially have been required to accept increased deliveries of high-salinity water in order to get a reduced amount of low salinity water. In this way, Mexican water use would have been sacrificed in the interests of salinity control and Delta restoration, with no corresponding sacrifice on the part of the U.S. As revised, the water-trading alternative avoids this difficulty, but substitutes another by requiring U.S. users to forgo vested rights to the use of Colorado River water for the benefit of the Delta. While this is undoubtedly the right approach from the Mexican perspective, the second MCE proposal thereby manifests all of the political disadvantages of the late Pacific Institute proposal, which the entrenched Colorado River interests easily managed to block in the latest battles over the Interim Surplus Criteria. So long as the Mexican legal system allows land and water rights to be retired and the water delivered to the Delta, the first MCE alternative represents a practical means of acquiring water for the Delta. Any long-term solution, however, must be binational in nature. The historical context must inform any solution to the Delta problem. Mexico has seen one of its largest rivers, wealthiest agricultural districts, and most important fisheries dried up, or salted up, by U.S. development upstream. From a Mexican perspective, the Mexico-U.S. Water Treaty - negotiated during a period of U.S. dominance and relative Mexican weakness - was substantively unfair.4" In the intervening years, the U.S. has consistently denied responsibility

Salinity of the Colorado River. August 30, 1973, U.S.-Mex., reprinted in 68 AM. J. INT'L L. 376, 377 (1974). 403. For an excellent history of the dispute, see FRADKIN, supra note 9, at 303-18. 404. Id. at 303-04. 2002] THE LAST GREEN LAGOON for the harsh environmental, social, and economic impacts to Mexico of its development policies on the Colorado. °5 In light of this history, there are serious issues of equity associated with requiring Mexico - or at least only Mexico - to dedicate its own, over-allocated Colorado water resources to deal with the problems of the Delta, when the U.S. clearly bears some responsibility for this growing environmental crisis. Of the 17.5 maf of Colorado River water that is allocated by the Colorado River Compact and the Mexico-U.S. Water Treaty, the U.S. claims 16 maf - around 92 percent - in addition to the entire annual flow of tributaries like the Virgin and the Gila Rivers. To use only Mexico's apportionment to save what little is left of the Delta heaps insult upon injury. Equity requires that the burden of water needed for restoration be shared between the two countries. Practicality also dictates against relying entirely on Mexico as the sole source of water for the Delta for the long term. Mexico's water resources are already stretched past their limits. 40 6 Groundwater supplies will only last so long; and fast- growing Tijuana and Mexicali will require increasingly large amounts of Colorado River water as time goes on, even as agricultural supplies dwindle."°7 Mexican water may represent a short-term solution, but in the long-term we must look to the U.S. for a source of water, regardless of the political difficulties associated with such a solution.

C. The Best Coursefor Saving the Delta

We believe that the most practical way to overcome those difficulties can be found in the voluntary, purchase-and-transfer based model that is envisioned in the original Sonoran Institute proposal. Combined with the thoughtful delivery strategies outlined in the MCE/SI alternatives, and supplemented with short-term acquisitions of Mexican water, the purchase-and- transfer based model represents a politically, economically, and legally practicable means of acquiring water for the Delta. Unlike the efforts to coerce change through litigation, a purchase-and-

405. See discussion of the U.S. and U.S. Department of Interior responses to the Lower Colorado salinity problem, the Pacific Institute proposal, and proposals to include the Delta region in the MSCP, supra Sections III.C and V.A. 406. See Hayes, supra note 53, at 808. 407. See id. at 805-08. Groundwater shortfalls are expected to worsen as a result of MWD/IID water conservation measures planned under the Quantification Agreement - canal lining will cut massive amounts of seepage that currently leak from the All-American Canal and replenish groundwater supplies in Mexico. See id. ECOLOGY LAW QUARTERLY [Vol. 28:903 transfer based solution offers a less controversial method to acquire water. Both countries contribute to the restoration of the Delta, but individual water users are not forced to participate; indeed they are fairly compensated for the loss of vested water rights. Assuming that willing sellers can be identified, and the constellation of existing water rights otherwise protected, serious political controversy over a Delta program might thus be reduced. Nonetheless, we think that such transfers will still be controversial. We expect that they will not be achieved entirely through voluntary means nor entirely with private funds. We, and others, 408 assume that some Wellton-Mohawk Irrigation and Drainage District (WMIDD) farmers would voluntarily sell their water rights, but obtaining that voluntary acquiescence from individual farmers does not mean that WMIDD would assent to transfers to the Delta. Thus far, "WMIDD has publicly stated that it is not willing to sell or lease water...".4 09 Moreover, Arizona law effectively gives WMIDD a veto over the decision of any farmer to sell his or her water rights by requiring the written consent of an irrigation district before water rights may be transferred outside the district.4"' The probability of continued resistance from WMIDD suggests that the search for supplies should encompass any and all possible sources, especially among irrigation districts and the Colorado River tribes. It would be best to locate willing sellers in areas where local community resistance will not thwart the sale. However, while there may be justification for allowing local control to prevail over larger interests in the context of small, tightly-built communities,4 the justification for local control is far less persuasive in the context of sparsely-populated irrigation districts -spread over thousands of square miles-that control hundreds of thousands or even millions of acre feet of water. As we have noted, there are significant potential environmental benefits from a transfer program that should be weighed against the interests of individual irrigation districts and other water users. However, there is also a critical national interest at stake that further justifies efforts to implement such a program - even over local objection. This interest revolves around one crucial issue facing the Lower Colorado - salinity.

408. See Pitt, supra note 23, at 7. 409. Id 410. See ARIz. REV. STAT. § 45-172(A)(4) (2001). It should be noted, however, that the Minute provisions outlined in Section VI infra could be used to override this veto. 411. See generally JOHN NICHOLS, THE MILAGRO BEANFIELD WAR (1974). 20021 THE LAST GREEN LAGOON

The adoption of the new Colorado River Surplus Criteria will exacerbate the already critical salinity problem on the Lower Colorado. The EIS calculated expected salinity levels under the various alternatives, but did not calculate the total expected economic effect of these changes, although it does note that each 1 ppm increase in salinity would cause $2.5 million in harm in California, Arizona, and Nevada.4 12 While the EIS assumed that any increases would be offset by future salinity control projects, it did not identify these projects.41 3 It also did not consider that instream flows (to the Delta) are a cost-effective means of reducing overall salinity. Moreover, the EIS completely ignored salinity effects on Mexican water users, and failed to provide an estimate of increased river salinity below Imperial Dam, the last dam on the Colorado before the U.S.-Mexico border. This oversight is particularly perplexing because the stretch of river below Imperial Dam is likely to face salinity increases far greater than those experienced at Imperial Dam itself. This is due to the fact that the majority of the remaining water to be diverted according to the Basin States alternative is diverted at the Imperial Dam. As a result, the effect of a net reduction in flows to Mexico will be relatively greater. Moreover, because Minute 242 requires an exact proportion between the levels at Imperial and Morelos dams (a difference of no more than 115 ppm ± 30 ppm),4 14 the salinity levels at Morelos are far more significant than the levels at Imperial Dam. The Basin States alternative would increase the flows that reach Imperial Dam but reduce them below the Dam. Therefore, the salinity levels at Imperial and Morelos will likely diverge, which could easily result in violations of Minute 242."' If salinity at Morelos is driven unacceptably high, the U.S. could be forced to operate the Yuma desalinization plant to meet its treaty obligations. The plant is costly to operate,4 16 and will

412. See FINAL EIS, supra note 71. at 3.5-7. 413. I& at 3.5-9. Indeed, the approach of the EIS on this point seems to be to argue that because there are salinity-control restrictions in place (due to Minute 242 and the CRBSCA) that make salinity increases illegal, and because the states, BOR, and other agencies are bound to follow the law, there will ipsofacto never be changes in Lower Colorado salinity. See id- 414. See supra note 402. 415. Relative salinity and flow levels are generally inversely related due to dilution effects; thus, more water at Imperial Dam equals lower salinity, less water below equals higher salinity. 416. The plant will cost in the neighborhood of $25 million per year to operate, without considering the cost of periodic replacements of equipment. See PONTIUS, supranote 3, at 68. ECOLOGY LAW QUARTERLY [Vol. 28:903 significantly affect the critical Cienega de Santa Clara habitat by diverting and treating saline groundwater that currently flows to the Cienega. Indeed, a recent interruption in flows of Wellton- Mohawk drain water due to the 1993 floods on the Gila River led to the loss of between 60-70% of the Cienega's wetland habitat.417 The biggest salinity problems historically have occurred below Imperial Dam.418 These problems are likely to be more acute because the EIS used 1997 Colorado River flows and salinity figures - a year of exceptionally high flows and correspondingly low salinity values (due to El Nifio weather patterns) - to estimate salinity effects in the Lower Basin." 9 As a result, the EIS almost certainly understated the salinity impact. A Delta restoration program could provide an innovative, cost-effective method of controlling or reducing Lower Colorado salinity. There are two equally effective methods for achieving salinity reduction: 1) reducing the salt load in the river through desalination or the elimination of sources of salt, and 2) increasing the flow of water in the river to dilute the existing salt load.420 Of the two, increasing the flow of water is by far the cheaper method of salinity control.421 Transferring water to the Delta for instream flow would not only benefit the Delta, but the additional flow would also decrease the overall salinity of water along the Lower Colorado and as it enters Mexico, creating benefits that would significantly offset the cost of purchasing water for instream flows. The minimum flow necessary for initial restoration efforts, perhaps 32,000 af annually and a 260,000 af flood flow every four years, 2 would produce a corresponding 2% increase in flows annually, and a 17% increase every four years.4 23 Because these flows would pass through Morelos Dam, they would also create supplemental salinity benefits by providing an additional outlet for salt, flushing out the reservoir. Even if increased flows reduced salinity by only a few percent at

417. Cohen et al., supra note 16, at 44-45. 418. SeeLaw&Homsby. supranote 171, at 88. 419. See FINALEIS, supranote 71, at 3.5-8. 420. See Law & Hornsby, supra note 171, at 96. 421. See WAHL, supra note 116, at 262-63. 422. See Pitt, supra note 2, at 831. As noted in the Introduction, researchers have estimated the water required for initial restoration efforts in the Delta at 32,000 af annually, and a 260,000 af flood flow every four years. In practice, however, the flow amounts might have to be larger in order to compensate for channel losses between Morelos Dam and targeted restoration areas further south. In that case, we expect the salinity benefits to be correspondingly larger. 423. 32,000 af and 260,000 af are equivalent to approximately 2% and 17%, respectively, of Mexico's total allocation of 1.5 maf. 2002] THE LAST GREEN LAGOON the Mexican diversions, the cost savings would still be significant. 24 Decreased salinity would reduce damage to city water delivery systems and consumers; for example, both Mexicali and Tijuana receive much of their municipal supply from the Colorado River.425 This dependence is expected to increase due to the exploding population and the gradual drawdown of groundwater supplies.426 Savings to Mexican agriculture would likewise be enormous. The Imperial Valley in the U.S. and Mexicali Valley in Mexico are roughly proportionate in size and character (Mexicali Valley is actually the southern half of the Imperial Valley basin).2 The BOR study estimated that 1 ppm of additional salt at Imperial Dam would collectively cost Imperial Valley farmers at least $108,000 in direct and perhaps an additional $240,000 in 429 indirect costs. 428 liD serves approximately 490,000 acres, whereas Mexicali Valley has 530,000 acres under irrigation.43 ° Given the overall similarity and geographic proximity of the Imperial and Mexicali Valleys, the costs and potential savings associated with Colorado River salinity would presumably be comparable. The United States government would also see significant savings. The Yuma desalinization plant will cost an estimated $25 million annually to operate, in addition to periodic $18 43 million replacements of desalting equipment. 1 Even in its current ready-reserve status, the plant still costs nearly $6.8

424. For example, the FINAL EIS for the new surplus criteria predicted a 19 ppm average decrease in salinity (around 2.2%) at Imperial Dam resulting from only an occasional transfer (under extremely dry conditions) of 100,000 af of water from PVID to MWD. FINAL EIS, supra note 71, at 3.5-9. These benefits accounted only for the reduction in salt loading due to the temporary discontinuance of irrigation in PVID - there is no dilution benefit, but rather a dilution deficit, since the water is removed from the river upstream of Imperial Dam. See id. If these benefits can be achieved without dilution, the salinity reduction effects of even a smaller amount of water transferred annually for Delta use ought to be comparable (due to the added benefits of dilution); the benefits of a larger, flood-size transfer (260,000 af or more) could be expected to be even larger. 425. See Hayes, supra note 53, at 808. 426. AL 427. 1& at 803, 808; FRADKIN, supra note 9, at 268. See also MORRISON ET AL., supra note 137, at 11, 31. 428. WORSTER, supra note 174, at 323. 429. FRADKIN, supra note 9, at 268. 430. Hayes, supra note 53, at 808. Some of the acreage in both Imperial and Mexicali valleys is served by groundwater. MORRISON ET AL., supra note 137, at 11, 31. 43 1. PoNTius, supra note 3, at 68. ECOLOGY LAW QUARTERLY [Vol. 28:903 million per year to maintain. 32 If instream Delta flows eliminate the need for desalinization, these costs would be eliminated. According to a 1997 report, Congress appropriated more than $77 million in the previous three fiscal years for salinity control programs to comply with EPA standards and Minute 242. Additional savings would come from not having to plan, construct, operate and pay for these salinity control projects, or the projects that will inevitably be undertaken in the future. Finally, the United States would benefit from reduced maintenance and transport costs on the irrigation projects from which Delta water was purchased, and increased hydropower production at dams downstream from the point of purchase. A 1988 study of a hypothetical 400,000 af transfer from the Upper Basin to the Lower Basin concluded that the water was more valuable left unused in the mainstream (in terms of the benefits from reduced water salinity and increased power production) than when used for agriculture.434 Other studies of potential water transfers have also noted the surprisingly large economic 4 35 benefits associated with instream flows. Thus, the cost savings associated with salinity control, in terms of reduced municipal costs, consumer costs, water use, maintenance costs, and crop damage, would entirely offset the cost of a Delta program. When coupled with the benefits from increased power production, avoided desalinization/salinity control costs, and the potential returns from a restored Delta fishery, an instream flow program would provide significant net economic benefits and large cost savings. These savings would justify significant subsidization of a Delta program by one or both governments, greatly reducing the costs associated with water purchases. It is a win-win situation for both countries. Mexico has a considerable interest in insuring that additional flows reach the Delta. Not only would Mexico benefit from reduced salinity, it would also enjoy enhanced economic

432. Id. 433. See id. at 65. 434. See George Edward Oamek, Economic and Environmental Impacts of Interstate Water Transfers in the Colorado River Basin 139-79 (1988 (Ph.D. dissertation, Iowa State University). 435. See, e.g., J.F. Booker & R.A. Young, Modeling Intrastate and Interstate Markets for ColoradoRiver Water Resources, 26 J. ENvrL. ECON. & MGMT. 66 (1994). While these studies indicate that the Upper Basin is the best source for water (because the benefits of power production and salinity reduction accrue along the entire length of the river), there is no reason to believe that an instream flow program using only Lower Basin water would not produce similar (albeit somewhat reduced) benefits. 20021 THE LAST GREEN LAGOON benefits from a restored Delta shrimp fishery.43 6 Some may ask whether Mexico would not find ways to divert additional water that the United States releases for the Delta, particularly as Mexico's population increases, its groundwater overdraft problem grows, and Mexican agricultural interests jealously eye the additional water. There are at least two responses to this concern. The first, which we noted above, is that Mexico currently lacks the capacity to divert and store additional 43 7 flows. The second is, quite simply, that the United States need not agree to a IBWC Minute that does not commit Mexico to using the additional flows in the Delta. Such a Minute would obligate Mexico, as a matter of international law, to release increased flows to the Delta. Moreover, this legal point should not obscure the larger issue: Mexico actively wants additional Colorado River water for the Delta, not for other municipal or agricultural uses in the Mexicali region.43 There is thus a critical national interest in securing flows for the Delta. Parochial interests should not be allowed to exercise a veto over an important national interest, or hide behind state laws to maintain what ultimately amounts to an uneconomic and inefficient set of restrictions on the movement of water in the Lower Colorado. If farmers are willing to voluntarily sell or lease their water rights for Delta restoration, federal law must trump state laws that stand in the way.

v REACHING INTERNATIONAL AGREEMENT: ADMINISTERING THE RETURN OF INSTREAM FLOWS TO THE DELTA The design, implementation, administration, and enforcement of a successful Delta restoration program will require the cooperation of the governments of both the U.S. and Mexico. Contrary to what one might expect, this cooperation should not be particularly difficult to accomplish. It would not require complex, high-level negotiations, the creation of an international commission, the negotiation of a treaty, or congressional action. Quite simply, the institutional framework to administer such an agreement already exists under the

436. See Manuel S. Galindo-Bect et al., Penaid Shrimp Landings in the Upper Gulf Of California in Relation to Colorado River FreshwaterDischarge, 98 FISHERIES BULL. 222 (2000). 437. See supra note 323 and accompanying text. 438. See letter from J. Arturo Herrera Solis, Mexican Commissioner, IBWC. to John M. Bernal, U.S. Commissioner, IBWC (Oct. 10, 2000), reprinted in FINAL EIS, supra note 7 1, at Attachment T: Consultation with Mexico. ECOLOGY LAW QUARTERLY [Vol. 28:903

Mexico-U.S. Water Treaty. As we shall argue, the International Boundary and Water Commission (IBWC) represents the perfect forum for developing, implementing, and administering a Delta transfer program, without necessitating a major overhaul of the Law of the River. Using its inherent authority, the IBWC can overcome most barriers to an international transfer of water because the link between Lower Colorado salinity and the restoration of the Delta provides IBWC with the necessary jurisdiction. Successful implementation of such a program presents a unique opportunity to improve U.S.-Mexico relations. Potential economic benefits and cost savings to both countries would more than offset the associated costs. In the context of a zero-sum competition for limited Colorado River water supplies, a Delta program offers a win-win solution for both countries.

A. The InternationalBoundary and Water Commission

As the international body most directly responsible for transborder water issues on the Colorado River, a Delta restoration program falls squarely within the jurisdiction of the International Boundary and Water Commission (IBWC). According to one commentator, IBWC's "informal decision- making powers give IBWC tremendous discretion to focus both nations' attention on environmental problems and to make recommendations for their solution."4 3 Although IBWC's powers may be insufficient to "manage the border region as a single integrated ecosystem,""' IBWC's jurisdiction over water quantity and quality issues is well-established and extensive." Moreover, IBWC has proven its effectiveness in the past in successfully addressing flood control problems, municipal issues, joint waterway management projects, monitoring and detection of boundary problems, and the collection and distribution of hydrological information in the border region."' Information sharing and communication between the Mexican and U.S. sections is also reputed to be excellent." 3 IBWC has avoided political controversy by focusing on problems that can be solved in a more technical capacity. " 4 Its extensive involvement in developing international wastewater

439. Sinclair, supra note 33, at 113-14. 440. Id. at 114. 441. Seeid. at 111-12. 442. I& at 112. 443. Id. 444. I& at 114. 20021 THE LAST GREEN LAGOON treatment facilities is typical of its chosen role." 5 Nevertheless, the IBWC has frequently resolved disputes over salinity and made significant changes to the Mexico-U.S. Water Treaty. For example, Minute 242, the most important of the IBWC's salinity agreements, led to a substantial alteration in the administration of the Colorado River and demonstrates the enormous potential power of IBWC. 4 4 6 Based on this precedent of salinity control alone, IBWC could exercise significant authority over any restoration plan that will affect the salinity of the Lower Colorado. An even greater expansion of IBWC authority is reflected in a later amendment to the Mexico-U.S. Water Treaty in Minute 261, which expressly recognized IBWC authority over problems that concern health or safety, or impair beneficial uses of international waters, and gave IBWC independent authority to determine when such problems exist. 44 7 This places a Delta flow program clearly within the purview of IBWC because salinity implicates both human health and the beneficial use of international waters. A Delta program would also implicate the health of Delta fisheries, which are recognized under the original Mexico-U.S. Water Treaty, albeit as low-priority beneficial 8 uses. " The recent Environmental Cooperation Agreement" 9 (ECA) between the U.S. and Mexico, part of the North American Free Trade Agreement (NAFTA), recognizes that "the border region is a single ecological unit requiring integrated and coordinated management of all its natural resources.""' This expansion of the scope of future transboundary cooperation embraces an enlarged jurisdictional role for IBWC. 45' As a result, IBWC is the appropriate institution to address the issues surrounding a Delta flow program. Considering its historically technical focus, IBWC might also prove to be an ideal administrator for such a program. In fact,

445. See il.at 113. 446. See id. at 118: discussion infra Sections VIA and VI.B; see also discussion of Minute 242, supranote 184. 447. United States-Mexico Agreement on Colorado River Salinity, Minute No. 261 of the IBWC: Recommendations for the Solution to the Border Sanitation Problems, Sept. 24, 1979, U.S.-Mex., 31 U.S.T. 5099; see also Sinclair, supra note 33, at 119- 20. 448. See Wilson, supra note 322, at 266. 449. North American Agreement on Environmental Cooperation, Sept. 8, 9, 12., and 14, 1993, 32 I.L.M. 1480. 450. Sinclair, supra note 33, at 124. 451, Seeil. at 125. ECOLOGY LAW QUARTERLY [Vol, 28:903

IBWC has begun to recognize its potential role in the Delta's restoration. In December 2000, IBWC issued Minute 306, Conceptual Framework for United States-Mexico Studies for Future Recommendations Concerning the Riparian and Estuarine Ecology of the Limitrophe Section of the Colorado River and its Associated Delta.452 Despite its infelicitous title, Minute 306 is significant because it expressly addresses the Delta's habitat as an issue of bi-national concern. Minute 306 proposes to establish "a framework for cooperation" through joint studies that explore how "to ensure use of water for ecological purposes in this reach and formulation of recommendations for cooperative projects, based on the principle of an equitable distribution of resources."453 Under Minute 306, IBWC shall use its existing bi-national technical task force to "examine the effect of flows on the existing riparian and estuarine ecology of the Colorado River [below the border] with a focus on defining the habitat needs of fish, and marine and wildlife species of concern to each country."4" IBWC consulted with the U.S. State Department in negotiating and agreeing to Minute 306, which is a major step toward transforming the Delta from an issue only of domestic political concern to one demanding diplomatic attention. In summary, IBWC has broad powers to enter into new international agreements (Minutes), and negotiate amendments to the Mexico-U.S. Water Treaty for subsequent ratification by the two governments. Even in those areas where IBWC lacks enforceable lawmaking authority, it provides an established and experienced forum within which such negotiations can occur. As a result, IBWC is the appropriate institution to attempt to override (or circumvent) the anti-transfer provisions of the Law of the River, such as the veto power over water transfers that Arizona law gives irrigation districts.

452. United States-Mexico Agreement on Colorado River Salinity, Minute No. 306 of the IBWC: Conceptual Framework for United States-Mexico Studies for Future Recommendations Concerning the Riparian and Estuarine Ecology of the Limitrophe Section of the Colorado River and its Associated Delta, Dec. 12, 2000, available at http://www.ibwc.state.gov/Files/Minutes/Min3O6.pdf. 453. Id. at 2. 454. Id. 2002] THE LAST GREEN LAGOON

B. Enforcing a TransferProgram: The Extent of IBWC Minute- Making Authority

Under U.S. law, IBWC Minutes have the same legal status as executive agreements, which essentially are international agreements entered into by the executive branch that do not comply with the Article II treaty process.4 55 While there is no express constitutional authority for executive agreements, they are the most common form of international agreement entered into by the United States. 5 6 There are three types of executive agreements: 1) "treaty-executive agreements," which are authorized under the terms of a treaty or are otherwise required to successfully carry out the terms of a treaty;457 2) "congressional-executive agreements," which are executive agreements approved in advance or ratified after the fact by a majority vote of both Houses of Congress in a joint resolution:45 and 3) "sole executive agreements," which are entered into under the President's authority alone.45 9 The enforceability of an executive agreement depends on which category it falls into. As a general rule, both "treaty- executive" and "congressional-executive" agreements enjoy the same status as treaties under U.S. law.46 They thus override

455. See Curtis A. Bradley, Chevron Deference and ForeignAffairs, 86 VA. L. REV. 649, 657 (2000): see also Robert J. Glennon, The Status of International Law in United States Domestic Law, 6 KANTO GAKUIN L. REv. 1 (1996). 456. See Thomas William France, The Domestic Legal Status of the GATr: The Need for Clarijication, 51 WASH. & LEE L. REv. 1481, 1487 (1994). See generally Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 801 (1995). Their acceptance as valid international agreements under U.S. law results from the repeated use of the agreements by the Executive for more than 200 years, a series of Supreme Court cases, and a long history of Congressional acquiescence in the practice. Donald P. Oulton, A Review of Executive Agreements from the Standpoint of the Current Case Law, 23 SUFFOLK TRANSNAT'L L. REv. 101, 107 (1999). 457. Kenneth C. Randall, The Treaty Power, 51 OHIO ST. L.J. 1089, 1092-93 (1990). 458. See id. at 1093; EDITH BROWN WEISS ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 198 (1998). 459. See Randall, supra note 457, at 1093; see also Benjamin D. Knaupp, Classifying InternationalAgreements Under U.S. Law: The Beling Platform as a Case Study, 1998 BYU L. REv. 239, 241 (1998); France, supra note 456, at 1487. Where "sole executive agreements" are entered into at the agency level, they must meet certain criteria specified by State Department regulations. See Oulton, supra note 456, at 106-07. 460. See Curtis A. Bradley. The Treaty Power and American Federalism. 97 MICH. L. REv. 390, 398 (1998). Thus, wherever an international agreement results from both Congressional and Presidential action, it is generally enforceable and overrides prior law - for the simple reason that the agreement rests on authority delegated from Congress. See France, supra note 456. at 1488: see also Ronald A. Brand, The Status of the General Agreement on Tariffs and Trade in United States Domestic Law, ECOLOGY LAW QUARTERLY [Vol. 28:903 prior federal laws, administrative regulations, and state laws and constitutions, and are subject only to federal constitutional limitations.46 ' "Sole executive agreements," however, have a far less well-defined status, and judicial authority addressing their enforceability is relatively sparse.462 The enforceability of "sole executive agreements" under federal law generally revolves around whether the subject addressed is constitutionally committed to the Executive Branch, to Congress, or to both." If the subject is fully within the authority of the Executive alone, 464

26 STAN. J. INT'L L. 479 (1990). However, there are limitations on their use. A "treaty- executive" agreement can only be used in place of a treaty where the agreement is authorized in order to implement the terms of the existing treaty, see France, supra note 456, at 1487, or where the executive agreement falls within the limits of the "Take Care" clause, U.S. CONST. art. II,§ 3, cl. 1, and is necessary to insure that the requirements of a treaty are faithfully executed. See Randall, supra note 457 at 1093. A congressional-executive agreement can be used in place of a treaty only when the agreement relates to a subject matter that is within the constitutional prerogative of both the legislature and the executive. Knaupp. supra note 459, at 247-48. However. no court has ever invalidated an executive agreement simply because it was an executive agreement instead of a treaty, Oulton, supra note 456, at 108, and it would seem that if an agreement receives Congressional approval (either via prior treaty, prior approval, or subsequent ratification), the issue would be largely moot. 461. See WEISS ET AL., supra note 458; see also Bradley, supra note 460, at 398; Oulton, supra note 456, at 110-12. 462. See Martin A. Rogoff, Interpretationof InternationalAgreements by Domestic Courts and the Politics of International Treaty Relations: Reflections on Some Recent Decisions of the United States Supreme Court, 11 AM. U. J. INT'L L. & POL'Y 559, 663- 65 (1996). 463. See Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C. L. REV. 134, 140 (1998). Executive Agreements need not be within the sole authority of the President; if Presidential authority overlaps an area in which Congress can also regulate, the agreement is proper. However, the President cannot make enforceable agreements in areas committed solely to Congressional jurisdiction, such as authorizing the expenditure of federal funds. See Knaupp, supra note 459, at 248. The enforceability of executive agreements thus seems to fall along a continuum originally suggested by Justice Jackson. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J. concurring. Presidential authority is strongest where the agreement is either expressly or impliedly authorized by Congress, or where it derives from powers delegated to the President in the Constitution itself. It is weakest where the acts contradict the will of Congress, or where they are outside the scope of Presidential authority. However, where there is no Congressional approval or disapproval on way or the other, and where the President and Congress have concurrent authority, there is what Jackson referred to as a "zone of twilight," in which the enforceability depends on whether Congress demonstrates "inertia, indifference or quiescence," or whether Congress acts to disapprove or revoke the agreement. Youngstown, 343 U.S. at 637: see Brand, supra note 460, at 499. 464. The inherent Presidential powers relevant to executive agreements appear to derive from four sources: 1) the President's "authority as chief executive" to represent the United States in foreign affairs; 2) his authority to deal with ambassadors and foreign ministers; 3) his authority as Commander-in-Chief: and 4) the "Take Care" clause. See Oulton, supranote 456, at 109. 2002] THE LAST GREEN LAGOON such agreements are enforceable under federal law, and will also 465 probably supersede prior congressional legislation. 466 Because IBWC Minutes qualify as executive agreements, a Minute could be used to accomplish all of the necessary incidents of a Delta transfer and restoration program, trumping federal regulation and contrary state law to the extent necessary to accomplish the purposes of such a program. Particularly in the form of a "congressional-executive" agreement, an IBWC Minute could accomplish substantially the same results as could be reached with a full-fledged amendment to the Mexico-U.S. Water Treaty. IBWC clearly has jurisdiction to investigate and make recommendations as to a Delta transfer program.4"' IBWC could put together a workable recommendation and framework in a Minute, and then seek congressional ratification after the fact. This would undoubtedly be easier to accomplish than an approval only requires a actual treaty amendment because 4 68 majority in both Houses, instead of 2/3 of the Senate, although it would still eventually require congressional action. IBWC could also accomplish a great deal via a "treaty- executive" agreement - simply by working within the limits of its

465. See Brand, supra note 460, at 496-97. Whether an otherwise valid executive agreement supercedes prior existing federal law has never been fully addressed by the courts, and the law in this area remains very much unsettled. 466. As with treaties, executive agreements are either self-executing, taking effect when they are made, or non-self-executing, requiring further steps before they are ratified and confirmed. See id. at 494-96, for a discussion of executive agreements. Self-executing treaties or agreements can be enforced in the courts on their own terms, whereas a non-self executing agreement or treaty "may not be enforced in the courts without prior legislative 'implementation.'" Carlos Manuel Vazquez, The Four Doctrines of Self-Executing Treaties, 89 AM. J. INT'L L. 695, 695 (1995). The difference between the two essentially turns on the wording of the treaty and the performance demanded. If the treaty does not "purport to affect the rights and liabilities of individuals before the court, but instead contemplate[s] that those rights and liabilities will be affected by future acts of domestic lawmaking," then it is non-self- executing. Id. at 701-02. For example, treaty language stating that -X is hereby confirmed" is self-executing. Language stating that "X shall be ratified and confirmed" is non-self-executing. See also Brand, supra note 460, at 494. Essentially, the analysis comes down to a determination of the intent of the parties as to whether the treaty was to be self-executing as determined from the text and subjects of the treaty. Where intent is unclear, an important factor is whether the terms of the treaty are written in such a character and with adequate specificity to lend themselves to judicial enforcement. See generally Asakura v. Seattle, 265 U.S. 332 (1924); United States v. Percheman, 32 U.S. 51 (1833); Foster v. Neilson, 27 U.S. 253 (1829); Fujii v. State of California, 242 P.2d 617, 621 (1952). However, a treaty may also be found to be non-self-executing if it addresses matters constitutionally committed to Congress, or if no right of action is conferred on a plaintiff to enforce the treaty. See Vazquez, supra at 696-97. 467. See supra notes 439-454 and accompanying text. 468. See Ackerman & Golove, supra note 456. ECOLOGY LAW QUARTERLY [Vol. 28:903 enumerated powers under the Mexico-U.S. Water Treaty. As noted above,46 9 the salinity control benefits and the positive effects on Delta fisheries place a transfer program squarely within IBWC jurisdiction. A transfer program would also clearly fall within IBWC's expanded jurisdiction under Minute 261, as river salinity and flow volumes in the Delta both implicate human health and "beneficial uses of [international] waters. 4 7 ° As a result, an IBWC Minute that implemented a transfer program under the auspices of river salinity, human health concerns, and regulating the "beneficial uses of international waters" should be fully enforceable as a "treaty-executive" agreement. Such a Minute could achieve substantially the same results as a treaty amendment - overriding provisions of the BCPA, interstate compacts, authorizing legislation, Reclamation law, administrative regulations, and state laws. Such an agreement could also override anti-transfer provisions in water delivery contracts between BOR and Lower Colorado River users, and between irrigation districts and individual irrigators, as well as invalidate such provisions in irrigation district bylaws or 47 1 charters.

469. See discussion infra Section VI.A. 470. See Minute 261, supra note 447. § 1. 471. The courts have recognized a broad authority in the federal government to pass laws that retrospectively affect private contract rights, subject only to the minimal limitations of due process. See generally JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAw 412-28 (6"' ed. 2000). Even where a congressional action causes a substantial impairment of a contract right, the party asserting a violation of due process must "overcome a presumption of constitutionality and .establish that the legislature has acted in an arbitrary and irrational way.'" National Railroad Passenger Corp. v. Atchison, Topeka & Santa Fe Railway Co., 470 U.S. 451, 472 (1985) (quoting Pension Benefit Guaranty Corp. v. RA_ Gray & Co., 467 U.S. 717, 729 (1984) (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976))). This is true even when the federal government is itself a party to the contract. In Peterson v. United States Dep't of the Interior, the Ninth Circuit found that Congress could unilaterally force amendments to Reclamation water delivery contracts' acreage limitations, finding that Congress's "sovereign power" to pass laws for the public welfare, particularly in controlling what were, after all, federally-subsidized irrigation projects, "is an enduring presence that governs all contracts... and will remain intact unless surrendered in unmistakable terms." 899 F.2d 799, 807 (9" Cir. 1990) (quoting Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 52 (1986) (quoting Merrion v. Jicarifla Apache Tribe, 455 U.S. 130, 148 (1982) (emphasis added))). The amendments in Peterson allowed Congress to unilaterally raise the rates at which project water would be sold to users by threatening to raise prices even higher if the users did not voluntarily accept the amendments. However, the courts do not afford the legislature the same broad degree of deference where the government is a party to the contract which is being modified, generally requiring that the modification be "reasonable and necessary to serve an important public purpose." United States Thist Co. v. New Jersey, 431 U.S. 1, 25 (1977) (reasoning 2002] THE LAST GREEN LAGOON

One crucial limitation of this approach is that the Minute would remain subject to the limitations of the Mexico-U.S. Water Treaty, which affords low priority to environmental values as beneficial uses and provides that "Mexico shall acquire no right beyond that provided by this subparagraph by the use of the waters of the Colorado River system, for any purpose whatsoever, in excess of 1,500,000 acre-feet... annually."4 72 These hurdles are surmountable, however, because the low priority provision could be easily overcome by assuring delivery using IBWC's authority over border water works, salinity control, and health protection. Creative drafting could avoid the second problem. So long as Mexico acquires "no right" to additional water, the Mexico-U.S. Water Treaty does not prevent IBWC from delivering additional water across the border. One obvious solution would be for Delta water rights to be held by a U.S.-based organization, but used in the Delta. The major difficulty with this strategy may be obtaining sufficient funding to subsidize water purchases, because any substantial appropriations, unrelated to existing programs, may seem to fall outside of IBWC jurisdiction. 473 It is possible that IBWC could operate a small "demonstration project" within the limits of its current budget and put the necessary legal mechanisms in place. Then, private organizations could purchase and retire rights for the benefit of the program. Once the program was firmly established, IBWC could seek funding from the U.S. and Mexican governments to subsidize and expand it. An IBWC Minute could be also be justified on a "sole- executive" agreement basis as a legitimate exercise of presidential foreign affairs authority because the growing salinity problem on the Colorado threatens to eventually violate the provisions of Minute 242, as well as provisions of U.S.

should apply by analogy to federal due process cases); see also NOwAK & ROTUNDA, supra, at 427. Because a pro-transfer Minute would modify contracts only insofar as necessary to allow the recipient of federal water to voluntarily alienate the delivery for fair value, it is unlikely that a challenge would be upheld. Peterson recognizes Congress's right to force changes to Reclamation water delivery contracts without implicating due process or Fifth Amendment takings restrictions, so long as the action is not "arbitrary and irrational." Peterson, supra note 471, at 813; see also Barcellos & Wolfsen, Inc. v. Westlands Water District, 849 F. Supp. 717 (E.D. Cal. 1993), affd O'Neill v. United States, 50 F.3d 677 (9th Cir. 1995), cert. denied O'Neill v. United States, 516 U.S. 1028 (1995). 472. See Mexico-U.S. Water Treaty, supra note 53, art. 10(b), 59 Stat. 1219, 1237. 473. See Sinclair, supra note 33, at 114. ECOLOGY LAW QUARTERLY [Vol. 28:903 environmental laws, and is also a major foreign relations issue with Mexico.47 4 However, to the extent that a Delta transfer program involves the appropriation of funds for the purchase and retirement of U.S. agricultural water rights, a "sole executive agreement" is not the best form for the agreement to take.4 75 Also, due to the judicially untested status of sole executive agreements, the legal effect of a Minute of this form on contradictory federal and state regulations and/or laws would be uncertain. Thus, a number of potential options exist for establishing the legal mechanisms necessary for a Delta transfer program through IBWC. The primary difficulty is not the actual design of a treaty amendment or Minute, but rather obtaining the necessary political support for its adoption and administration from the Executive Branch, its counterpart in Mexico, and water users in both countries. In this respect, the growing salinity problem on the Lower Colorado could provide an essential political catalyst as well as a powerful economic justification for a Delta program.

CONCLUSION A Delta program could be quickly and easily put in place. A voluntary purchase-and-transfer program offers a manageable, politically acceptable opportunity for obtaining and moving water. As we have discussed, the IBWC and the Lower Colorado salinity problem provide both the means and the motive for such a program. Nevertheless, one key ingredient is still missing - the political will to implement it. The Bush Administration must take an interest in the environmental crisis in the Delta and take the minimal steps necessary to address it. Given the Bush Administration's environmental record, some critics may doubt whether the Administration will act to save the Delta. President Bush has withdrawn the U.S. from the Kyoto Accord, refused to regulate CO2 emissions, refused to implement new arsenic standards and water quality restrictions on mining activities, reversed or refused to implement a number of Clinton administration regulations, including the popular roadless policy, is considering reopening 58 million acres of public lands to logging, and is pressing to drill for oil in the Arctic National

474. See Conclusion, infra. 475. As noted supra, "sole executive agreements" cannot infringe on powers allocated solely to Congress under the Constitution; the appropriation of funds is clearly such a power. 2002] THE LAST GREEN LAGOON

Wildlife Refuge.4 7 6 These policies seem to misread the popular will on environmental issues.4 77 The Administration is coming under increasingly heavy pressure domestically, and not just from environmentalists. Celebrities, labor interests, Democrats, and even moderate Republicans have criticized the Administration for its departure from the center on environmental policy.4 "6 The Administration is also drawing increasingly heavy fire internationally, as world leaders have criticized the President for pulling the United States out of the Kyoto Accord.47 9 These pressures may prompt the Administration to reconsider its policies. If the Administration wants to act to protect the environment, a Delta program offers a good place to start. A voluntary, compensation-based solution that improves overall efficiency is precisely in line with the approach to conservation that has been publicly espoused by the Bush Administration. Having served as a governor of a border state, President Bush is familiar with Mexican concerns and is committed to improving relations with Mexico. For example, the Bush Administration has opposed efforts to prohibit Mexican long-haul trucks from entering the United States, 4 0 and President Bush's first international trip was to Mexico, where he met with President Vicente Fox."1 In September 2001, President Bush held his first State Dinner at the White House with President Fox as the guest of honor."2 The next day President

476. See Eric Pianin & Edward Walsh, In His Energy Campaign Bush Signals a Retreat, WASH. POST, July 4, 2001, at A4. 477. See E.J. Dionne, Jr., A 50 PercentPresidency, WASH. POST, July 6, 2001, at A25. 478. See, e.g., Wilkinson, supra note 37; Lloyd Grove, The Reliable Source, WASH. PosT, April 25, 2001, at C3 (discussing Robert Redford's letter to The Washington Post); Sam Parry, Alaska's Refuge Held Hostage and W's War on the Environment, CONSORTUM NEws, Apr. 12, 2001, available at http://www.consortiunmewscom/20O1/041201a.htm; Earth Day Generates More CriticismoJBush, ASSOCIATED PRESS, Apr. 23, 2001, availableat http://www.enn.com/news/wire-stories/2001/04/04232001 /ap-earthday_43196.asp; Beth Daley, Strange Bedfellows: Bush's Environmental Policies Spur a Greenpeace Revival, BOSTON GLOBE, Sept. 4, 2001, at BI. 479. Anger at U.S. Climate Retreat. B.B.C. NEWS, Mar. 29, 2001, available at http-f//news.bbc.couk/hi/english/sci/tech/newsid-1248000/1248278.stm, 480. See Washington in Brief, WASH. POST, Nov. 13, 2001, at A4 (discussing a compromise on new rules governing the safety of Mexican trucks). 481. Jorge 1. Dominguez & Rafael Fernandez de Castro, Bush H and Fox Can Build on the Bush I and Salinas Foundation,L.A. TIMES, Sep 6, 2001, at B 15. 482. Dana Milbank & Mary Beth Sheridan, Fox Presses for ImmnigrationAgreement, WASH. POST. Sept. 6, 2001, at Al. ECOLOGY LAW QUARTERLY [Vol. 28:903

Fox addressed a joint session of Congress." 3 From the Bush Administration's perspective, a Delta restoration program would improve relations with Mexico, generate favorable recognition for protecting the environment, and save money. For a Delta restoration program to succeed, the political support of the Administration, through the State Department, will be essential. While IBWC clearly offers a forum where such a program could be implemented, IBWC will not act without the support of the State Department. 48 4 Also, years of strident protest by Mexico regarding salinity issues led to the adoption of Minute 242 only after State Department officials became actively involved in negotiations, largely because the U.S. Department of the Interior (through BOR) was unwilling to accept concessions 4 on salinity issues. ' As the Interim Surplus Criteria dispute illustrates, the Department of the Interior pays no heed to Mexican concerns - even under an environmentally progressive Secretary - for the simple reason that it views only the domestic stakeholders as its real constituents.4 8 6 The lesson for Delta restoration is that State Department involvement is imperative. Events are rapidly unfolding that could propel active State Department involvement.4 8 7 In May 2000, IBWC Commissioner for the Mexican Section, J. Arturo Herrera Solis, opposed the proposed Interim Surplus Criteria due to the impact of reduced flows on commercial fishing activities, salinity in the Mexicali

483. Id. 484. Personal communication with Professor David A. Gantz. University of Arizona, James E. Rogers College of Law (Mar. 5, 2002). Gantz was an attorney for the State Department in the negotiations that led to Minute 242. 485. Id. 486. See discussion accompanying supra note 27 1. 487. In 2000, as the interim Surplus Criteria EIS moved forward, Mexican interests began to object to their impact on the Delta. In public comments on the DEIS, the Autonomous University of Baja California (UABC) protested the impact of reduced flood flows on Mexico's shrimp fishing industry in the northern Sea of Cortes. See FINAL EIS FINAL EIS, supra note 71, at Attachment T: Consultation to Mexico. That industry faces several problems, including overfishing, but one problem is reduced fresh water flows to the Delta. See Galindo-Bect et al., supra note 436. Scientists have correlated shrimp catches with flood flows, Id. at 223. Reduced flood flows apparently change the estuarine conditions by reducing the size of the area that has a mix of fresh and salt water. See UABC Comments in FINAL EIS, supra note 7 1, at Attachment T. It is generally understood that when there are lower levels of freshwater flows, predator species will begin to invade an estuary. See generally R.J. Livingston et al., Modelling Oyster Population Response to Variation in Freshwater Input, 50 ESTUARINE COASTAL & SHELF SCI. 655 (2000), available at http://www.idealibrary.com/llnks/doi/10. 1006/ecss. 1999.0597/pdf. The Mexican commercial shrimping industry, and indigenous communities in the northern Sea of Cortes, will suffer if shrimp harvests continue to decline. See Galindo-Beet et al., supra note 436. 2002] THE LAST GREEN LAGOON region, and the riparian habitat of the Delta 8 8 Commissioner Herrera Soils objected to the Department of the Interior's 489 position that it could ignore environmental impacts in Mexico. The U.S. Section responded by convening IBWC meetings and sharing all available technical data. In October 2000, Mexico's objections became more pointed when Commissioner Herrera Solis again objected to the Interim Surplus Criteria.49 9 Noting that any of the proposed alternatives would reduce flood flows, he wrote that Mexico's concern "is a real one and therefore should be considered as a serious one."491 He particularly stressed the potential impact on commercial fishing'92 and concluded: "I request that you consider the concerns expressed by Mexico that are directly linked to the implementation of the Interim Surplus Criteria."493 Despite diplomatic protests from Mexico, Secretary Babbitt issued the Record of Decision on January 16, 2001."' It is our hope that this continuing diplomatic dispute will trigger an appropriate response from the Bush Administration. If the Bush Administration fails to intervene, a little-regarded provision of the Mexico-U.S. Water Treaty could generate legal consequences costing the United States 200,000 acre feet per year of Colorado River water. Article 10(b) of the Mexico-U.S. Water Treaty provides that in any year in which there is "a surplus of waters of the Colorado River in excess of the amount necessary to supply uses in the United States and the guaranteed quantity of 1,500,000 acre-feet... annually to Mexico, the United States undertakes to deliver to Mexico.. .additional waters of the Colorado River system to provide a total quantity not to exceed 1,700,000 acre-feet.. .a year."49 5 In any given year, it is unclear when the United States must release the additional 200,000 af to Mexico. Answering this question depends on interpreting what is "a surplus. . .in excess of the amount

488. Letter from J. Arturo Herrera Solis, Mexican Commissioner, IBWC, to John M. Bernal. United States Commissioner. IBWC (May 22, 2000), reprinted in FINAL EIS, supra note 71, at Attachment T: Consultationto Mexico. 489. Id. 490. Letter from J. Arturo Herrera Solis, supra note 438. 491. Id. at 1. 492. See iL 493. Id. at 2. 494. See discussion supra at Section IV.D. 495. See Mexico-U.S. Water Treaty, supra note 53, art. 10(b), 59 Stat. 1219, 1237 (emphasis added). Under the Treaty, Mexico does not receive legal rights to this 200,000 af, which we interpret as no legal claim to such surplus releases in the future. ECOLOGY LAW QUARTERLY [Vol. 28:903 necessary to supply uses in the United States. 496 The United States' position is that the Treaty assumes the right of the Upper and Lower Basins to 15 maf, and the Lower Basin to an additional 1 maf, as provided in the Colorado River Compact. 9 7 Accordingly, Mexico's claim to the additional 200,000 af would only apply in years when the Colorado River's flow exceeded 17.5 495 maf. The United States also claims that the "surplus" and "excess" would only occur "when storage in Powell and Mead are anticipated to exceed full conservation capacity." 9 The U.S. argues that as long as there is storage capacity in Lake Powell or Mead, there would never be "excess" water to fulfill Mexico's Treaty right to 200,000 af. ° However, Mexico has a strong logical counter to this U.S. position. First, the Mexican treaty, signed in 1944,501 binds both countries and predates the Colorado Basin Project Storage Act of 1956, which authorized construction of Lake Powell and other reservoirs. °2 Therefore, the storage capacity of Lake Powell can have no bearing on Mexico's Mexico-U.S. Water Treaty rights. Second, the Treaty's most ambiguous terms are "surplus" and "excess." In any year that the Secretary declares a surplus condition, in order to enable California to take more than its 4.4 maf right, does that not prove that a surplus exists? Perhaps not. California's use in excess of 4.4 maf could be charged under the Lower Basin's 1 maf additional water under the Colorado River Compact.5"3 But if the Secretary declares a surplus, Mexico may have a claim under the Treaty. The point, quite simply, is that the United States cannot create new reservoirs and operate existing reservoirs in order to defeat Mexico's Mexico-U.S. Water Treaty right to 200,000 af in any year in which there is a "surplus." If the Secretary's surplus declaration creates treaty rights for Mexico, Mexico can lay claim to this 200,000 af and solve the Delta problem on its own. These legal issues are subtle and nuanced, but they may provide an additional reason for the

496. Id. 497. See id. 498. Upper and Lower Basin 15.0 maf Lower Basin additional 1.0 maf Mexico's Treaty right + 1.5 maf 17.5 maf 499. See U.S. Section, IBWC, Draft Authority and Assumptions, Dec. 28, 1999, reprintedin F)NAL EIS, supranote 7 1, at Attachment T: Consultationto Mexico. 500. See iri 501. See Meico-U.S. Water 'reaty, supra note 53. 502. 43 U.S.C. § 1501 (1968). 503. See Colorado River Compact, supra note 47, Art. 111(b). 20021 THE LAST GREEN LAGOON

State Department to become involved in negotiations with Mexico over the future of the Delta, regardless of the Administration's attitude towards the ultimate goal of accomplishing environmental restoration in the Delta. Marc Reisner and David Getches have brilliantly demonstrated the folly of our history of salinity control efforts on the Colorado River.50 Each problem begets a new technological solution, seemingly oblivious to cost effectiveness, economic benefits, or impacts on communities. Under the Reclamation era heyday, the flawed philosophy was: engineers know best. No desalinization plant, bypass canal, or other Rube Goldberg invention was too extreme to receive genuine consideration and congressional funding. 5 We believe that it is time to halt such technological fixes and take a sober look at reducing salinity through the purchase and retirement of existing water rights in agricultural districts with highly saline soil and using the increased flows to further dilute the salinity of the river above and below the border while simultaneously restoring the Delta. The multiple international implications of an instream flow program - in terms of the environmental, economic, and human health benefits that would accrue from a restored Delta and reduced river salinity - place the issue of water transfers squarely within the jurisdiction of the IBWC. With its historically technical focus and its ability to negotiate Minutes or provide a forum for a new treaty amendment, IBWC is an excellent institutional candidate for the development and implementation of a transfer-based Delta restoration program. A cooperative bi- national approach to Delta restoration, accomplished by voluntary purchases and transfers of water, represents a powerful means to make substantive progress on Delta restoration without having to challenge the entrenched water interests protected by the Law of the River. A restored Delta would be of inestimable environmental, cultural, and economic benefit to people throughout the Colorado River Basin. The costs are minor, the risks minimal. However, there is only a limited window of time in which to act on this opportunity. Every year the operation of the river's waterworks becomes more efficient, leaving less water to trickle to the Delta and bringing it one step closer to extinction. This

504. See generally REISNER, supra note 1; David H. Getches, From Askhabad, to Wellton-Mohawk, to Los Angeles: The Drought in Water Policy, 64 U. COLO. L. REV. 523 (1993). 505. See generally REISNER, supra note 1; Getches, supra note 504. 992 ECOLOGY LAW QUARTERLY [Vol. 28:903 paper issues a challenge to the Bush Administration to take advantage of this opportunity before the Delta passes into history.