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Equity and the Colorado River Compact

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Equity and the Colorado River Compact TOJCI.ROBISON & KENNEY.DOC 11/26/2012 8:47 PM EQUITY AND THE COLORADO RIVER COMPACT BY JASON A. ROBISON & DOUGLAS S. KENNEY* The Colorado River and the elaborate body of laws governing its flows (Law of the River) are at a critical juncture, with a formidable imbalance between water supplies and demands prompting diverse efforts to evaluate and to think anew about Colorado River governance. One such effort is the Colorado River Governance Initiative (CRGI) at the University of Colorado Law School. Incorporating CRGI research undertaken over the past two-and-a-half years, this Article focuses on the interstate compact constituting the foundation of the Law of the River—the Colorado River Compact (Compact)—and approaches the water apportionment scheme established by this Compact as a subject of central importance in current efforts to navigate the future of the river. Lying at the base of the Compact is a commitment to equity—“equitable division and apportionment of the use of the waters of the Colorado River System”—which poses the fundamental question explored in this Article: To what extent does the Compact’s apportionment scheme fulfill this commitment to equity in its existing form? After providing an initial overview of the Compact, this Article considers the meaning of “equity” as a norm, setting the stage for a subsequent examination of water supplies and demands in the basin and of longstanding interpretive disputes involving the Compact’s key terms. This examination reveals several equity-related concerns associated with the composition of the Compact’s apportionment scheme and the governance structure devised for it. A discussion of these concerns occupies the final Part of this Article. Framing this discussion is our perspective that the Compact’s commitment to equity is a venerable one and that the concerns raised in this final Part need to be addressed * Mr. Robison is a Visiting Fellow at the Colorado River Governance Initiative and a Dissertation Fellow at the Water Security Initiative at Harvard University. Dr. Kenney is the Director of the Western Water Policy Program at the University of Colorado Law School. We would like to thank Robert Adler, Jody Freeman, Richard Lazarus, John Leshy, Larry MacDonnell, Dan McCool, and Joseph Singer for their comments on the ideas framing this Article. We also acknowledge our gratitude to the late David Getches, a champion both of equity and the Colorado River, and a CRGI co-founder. The tireless efforts and exceptional work of CRGI research assistants affiliated with this project is acknowledged in citations throughout the piece. Any errors and omissions are solely our own. [1157] TOJCI.ROBISON & KENNEY.DOC 11/26/2012 8:47 PM 1158 ENVIRONMENTAL LAW [Vol. 42:1157 in ongoing dialogue about Colorado River governance in order to fulfill this commitment in contemporary times. I. INTRODUCTION ................................................................................................................... 1158 II. “EQUITABLE DIVISION AND APPORTIONMENT” VIA THE COMPACT .................................... 1164 A. The Spirit of Equity ............................................................................................... 1165 B. Apportionment Scheme ........................................................................................ 1168 C. Governance Structure ........................................................................................... 1172 III. ON “EQUITY” ................................................................................................................... 1173 A. Context ................................................................................................................... 1174 B. Principles ................................................................................................................ 1176 1. Substantive Equity ......................................................................................... 1177 2. Procedural Equity .......................................................................................... 1179 IV. A CONTEMPORARY PERSPECTIVE ON THE RIVER AND COMPACT ...................................... 1181 A. A River No More? .................................................................................................. 1181 B. Cracks in the Foundation ..................................................................................... 1185 1. Flows to Mexico ............................................................................................. 1185 a. Lower Basin Tributaries ....................................................................... 1186 b. “Surplus” Water ...................................................................................... 1188 c. Channel Losses ...................................................................................... 1190 2. Flows to the Lower Basin ............................................................................. 1191 V. REALIZING EQUITY ............................................................................................................ 1192 A. Substantive Equity ................................................................................................ 1194 1. Reciprocity ...................................................................................................... 1194 2. Flexibility ........................................................................................................ 1199 B. Procedural Equity ................................................................................................. 1203 VI. CONCLUSION .................................................................................................................... 1208 I. INTRODUCTION It might be impossible to overstate the importance of the Colorado River to the southwestern United States—both within the Colorado River Basin and across expansive adjacent areas dependent on the river’s life- giving flows.1 In innumerable ways, the river has shaped the face of the region. It has facilitated, and continues to enable, the growth of major metropolitan areas like Albuquerque, Denver, Las Vegas, Los Angeles, Phoenix, Salt Lake City, and San Diego.2 It provides lifeblood for hallmark 1 See BUREAU OF RECLAMATION, COLORADO RIVER BASIN WATER SUPPLY AND DEMAND STUDY, INTERIM REPORT NO. 1, at SR-2, SR-10 (2011), available at http://www.usbr.gov/lc/region /programs/crbstudy/Report1/StatusRpt.pdf [hereinafter STATUS REPORT] (describing the importance of the Colorado River Basin to the surrounding Basin States and providing a useful map of the Colorado River Basin and adjacent areas where water is diverted from the Colorado River and its tributaries). 2 Id. at SR-5. TOJCI.ROBISON & KENNEY.DOC 11/26/2012 8:47 PM 2012] EQUITY AND THE COLORADO RIVER COMPACT 1159 national parks of unsurpassed natural beauty and immense cultural, historical, and scientific value, including the Grand Canyon.3 It gives sustenance to diverse American Indian tribes struggling to create viable homelands in modern U.S. society,4 as well as to myriad farming and ranching communities whose labor feeds the nation (and beyond). Measured by any metric— economic5 or otherwise—the Colorado River is a defining feature of the U.S. Southwest. Its fate bears immeasurably on the fate of the region. Paralleling the significance of the Colorado River to the U.S. Southwest is the complexity of the body of laws devised for its governance. Colloquially called the “Law of the River,” this body of laws encompasses an international treaty, two interstate compacts, a historic U.S. Supreme Court decision (Arizona v. California),6 and several dozen federal statutes and regulations.7 Evolving continuously over roughly the past century,8 the Law 3 See CTR. FOR PARK RESEARCH, NAT’L PARKS CONSERVATION ASS’N, NAT’L PARKS OF THE COLORADO RIVER BASIN: WATER MANAGEMENT, RESOURCE THREATS, AND ECONOMICS 3, 20 (2011), available at http://www.npca.org/about-us/center-for-park-research/colorado_river_basin/ Colorado-River-Report.pdf (identifying the effect that management of dams along the Colorado River and its tributaries has on national park units located in the Colorado River Basin). 4 See U.S. GEOLOGICAL SURVEY, FEDERAL LANDS AND INDIAN RESERVATIONS (2005), available at http://nationalatlas.gov/printable/images/pdf/fedlands/fedlands3.pdf (detailing locations of the numerous Indian reservations and other federal lands within the Colorado River Basin). 5 See SOUTHWICK ASSOCS., ECONOMIC CONTRIBUTIONS OF OUTDOOR RECREATION ON THE COLORADO RIVER AND ITS TRIBUTARIES 2 (2012), available at http://www.southwickassociates .com/portfolio-view/economic-contributions-of-outdoor-recreation-on-the-colorado-river-its- tributaries (identifying total value of all spending associated with recreational activities involving the Colorado River and its tributaries as $25.6 billion per year). 6 373 U.S. 546 (1963). 7 For an excellent survey of the laws comprising the Law of the River, see Lawrence J. MacDonnell, Colorado River Basin, in 4 WATERS AND WATER RIGHTS 5, 13–25 (Amy K. Kelley ed., 3d ed. 2011). For electronic copies of these laws, see John Weisheit, The Hoover Dam Documents, ON THE COLORADO, Dec. 18, 2010, http://www.onthecolorado.com/articles.cfm? mode=detail&id=1292710182151 (last visited Nov. 18, 2012). 8 See generally NORRIS HUNDLEY, JR., WATER AND THE WEST: THE COLORADO RIVER COMPACT AND THE POLITICS OF WATER IN THE AMERICAN WEST (2d ed. 2009) [hereinafter WATER AND THE WEST] (providing a seminal account
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