And the Colorado River Compact

'ARROYO

Vol. 10 No. i August 1997

Above arc members ofi/ze Colorado River (]o,nmision. Left to rig/u: Deipli C'arpcizíer, Colorado; WS. Noiviel, Arizona; Clarence Stetson, executive secretary ofthe commission; Herbert Hoover, U.S. Secretaîy of Commerce; James Scrugliam, Nevada; R.E. Caidwell, Utah; W.F. McClure, California; Stepheii B. Davis, Jr., New Mexico; and Frank C. Ein erson, Wyoming. Sharing Colorado River Watec History, Public Policy and the Colorado River Compact

marks the 75th anniversary of work out the compact. lt was then sidered a defining document in the signing of the Colorado River signed in the Palace of the Gover- Colorado River management. Compact. Delegates from the seven nors, Santa Fe, on November 24. The As a measure of its importance Colorado River Basin states met on compact apportioned Colorado River and stature, the compact became the November 9, 1922 in New Mexico to water between Upper and Lower keystone to the "Law of the River." discuss, negotiate and ultimately Basin states and, as a result, is con- The Law of the River is a corn- WATER RESOURCES RESEARCH CENTER . COLLEGE OF AGRICULTURE THE UNIVERSITY OF ARIZONA posite - some might say an "assort- ways been a land of myth and legend, tributed the least amount of runoff to ment" to better describe its its symbolic importance at times over- the river added gall to the situation. piecemeal assemblage - of state and laying, and even eclipsing its physical (In her conference presentation, federal laws and regulations, court reality of land, water and people. And Pat Mulroy, general manager of the decisions, and international treaties the Colorado River shares this gran- Southern Nevada Water Authority, made over time for the purpose of deur and mystique. commented, "Things have changed, managing the Colorado River. Con- Some of this rubs off on Colorado but what remains the same is that cerned with one of the West's most River public policy studies. What California was the problem back important rivers, the compact clearly seems called for is a broader, deeper then, and California is the problem stands as a monument in U. S western and more varied approach to such today.") water law. studies. Viewed accordingly the Concern was hardly allayed by a As befits a monument, the signing Colorado River Compact is revealed federal report recommending the con- of the compact is a notable event as a complex historical, cultural and struction of a dam "at or near which western water interests remem- public policy document. Boulder Canyon" which would in- ber and celebrate. Accordingly, For those interested then in the crease California's access to the during May 28-31, 1997 a Colorado development of western water, Colorado River. Concern turned to River Compact Symposium was con- whether the hydrology, history or cur- alarm when the U.S. Supreme Court ducted at Bishops Lodge in Santa rent affairs, the Colorado River Com- ruled in June 1922 that the law of Fe - the site where compact delegates pact - and, more broadly, the manage- prior appropriation applied regard- met in 1922 to celebrate the 75th an- ment of the Colorado River - be- less of state lines. A fast growing niversary of the signing of the com- comes a rich vein to mine. More than state, i.e. California, could then estab- pact. The symposium topic was just a water topic, the compact grand- lish priority use of Colorado River "Using History to Understand Cur- ly represents a central theme of water to the extreme disadvantage of rent Water Problems." western water; i.e., the allocation of slower growing states in the upper Much of the following discussion scarce water resources among com- basin. relies on ideas and information competing interests to ensure present and Some form of concerted effort ing from the May 28-31 Santa Fe con- future growth and development. The seemed called for. Delph Carpenter, ference, from individual speakers, compact is this theme writ large. a Colorado attorney, rose to the oc- panel discussions and informal The conference theme also has im- casion and proposed that the remarks and comments. plications beyond the Colorado River. Its broad and interdisciplinary Arroyo is published quarterly by the view of water policy, an approach that Water Resources Research Center, The Compact: History & comes naturally to Colorado River College of Agriculture, 350 N. Public Policy studies, also is applicable in other Campbell Avenue, Umversity of situations of lesser scale; e.g., when he theme of the May 28-31 sym- Arizona, Tucson, Arizona 85721; 520- managing the San Pedro, Santa Cruz Tposium, "Using History to Under- 792-9591. Each issue of Arroyo or the Verde rivers. History also can stand Current Water Problems," focuses on a water topic of current m- be used to understand current water broadly interpreted the significance terest to Arizona A list of past issues along these rivers. of the compact. It invited participants Arroyo topics is available upon re to view the compact both as an histori- quest, and back issues can be ob- cal event and as public policy. Review- History of the Compact tained. Both list and past copies can ing the compact's creation and legacy be accessed via the World Wide Web in this way demonstrated that the the early 1920s the Colorado (http://ag.arizona.edu/AZWATER/). boundary between history and public ByBasin states were anxious about Subscriptions are free, and multiple policy is not always clearly defined. their share of the Colorado River. copies are available for educational Occurring at a certain time and Then, as now, California's growth was purposes. The editor invites corn- place, all laws and public policies viewed with concern. Burgeoning ments and suggestions. have an historical and cultural sig- growth meant increased water nificance. This significance gets more demand, and the other Colorado Water Resources Research Center attention, however, when the Basin states feared California would Acting Director, Peter Wierenga Colorado River is involved, the establish priority rights to Colorado Editor, Joe Gelt, "River of the West." The West has al- River water. That California con- Email: [email protected]

2 Colorado River states negotiate a Lower Basin states, with the demarca- past and present Colorado River is- compact to determine individual tion line set at Lee's Ferry, located in sues and will be an abiding concern in state's rights to the river water. At the northern Arizona's canyon country the future. time interstate compacts to resolve close to the Utah border. Wyoming, When further examining the his- water disputes was an untried, un- Colorado, Utah and New Mexico tory of the compact and especially tested strategy. were designated Upper Basin states Arizona's role in it, water scarcity is Carpenter's reasons for advocating and California, Arizona and Nevada seen as a driving force behind many an interstate compact strikes a Lower Basin states. Each basin was to developments. An historical review familiar note today. Fie was very receive 7.5 million acre-feet (mai) per also shows how subsequent events af- warysome even say paranoid- year. Along with their allocations, the fected the compact in ways that vio- about federal involvement in state af- Lower Basin states could increase lated the political ideals of its fairs and feared if the states did not their apportionment by one maf. This framers. Arizona, in seeking to get their houses in order the federal represented a bonus to ensure lower protect its Colorado River interests, government would take charge, to the basin acceptance of the compact was a key player in some of these un- disadvantage of the states. Also, he (Actually the Upper Basin states dermining events. wanted to head off litigation that were obliged to deliver 75 maf at would be time-and-resource consum- Lee's Ferry during each ten-year ing and believed an interstate com- period. The extended time frame al- Arizona Stands Firm pact would accomplish this end. lowed the required delivery to be reviewing the give and take of The compact's crowning ac- averaged over time to make up for compact negotiators, one figure years of low flow.) complishment was the apportionment stands out as especially obstretuous of Colorado River water, between The delegates figured allocations and contrary, W. S. Norviel of Upper and Lower Basin states. The on hydrologic data from the Reclama- Arizona. His insistence that the delegates initially intended to apportion Bureau that indicated annual Lower Basin states receive all the tion river water directly to each state. Colorado River flow at Lees Ferry to water of their tributaries, plus half the A seemingly sensible approach, this river's flow at Lee's Ferry, almost strategy had the potential to prevent wrecked the negotiations. The extra future conflicts among the states. The one maf that was allowed to the basis to determine each state's share Lower Basin states was to placate was to be the amount of irrigable land Norviel, in a battle over whether within a state. Determining such tributary flow would be counted as acreage, however, proved to be a very part of a state's Colorado River al- contentious issue, one that threatened location. to undermine compact negotiations. (Although Norviel's feistiness com- San ildefonso pottery design Further, as the discussions plicated and prolonged the proceed- progressed it became clear to many of ings, he was viewed as an effective the delegates that the major disagree- be 16.4 maf. In truth, however, fighter for his state's cause. Herbert ments on the table were between the Hoover, the federal chairman of the upper and lower basins, not among Colorado River flow is a good deal less than that. Data from three cen- commission, described Norviel as the states within each basin. Also the "the best fighter on the Commission" data to determine appropriations to turies indicate an average flow of about 13.5 maf. Also, flows are highly and told him, "Arizona should erect a individual states simply was not avail- monument to you and entitle it 'One able. A two-basin strategy was viewed erratic, ranging from 4.4 maf to over 22 maf. million acre feet.' ") as a means to resolve the difficulties, Even after the signing of the com- although it was not to the liking of all Built into the compact then, between what it promised and what the pact, Arizona played a divisive role, the delegates. Arizona's delegate W. still acting "the dog in the manger," S. Norviel complained, "It doesn't ar- river was prepared to deliver, was water scarcity. There is not enough as described by Rita Pearson, direc- rive at any conclusion, and...it leaves tor of the Arizona Department of the two divisions to work out their water to go around. As a result, water scarcity is the root of most of the dis- Water Resources, at the recent con- own salvation." ference. Within five months of the Despite the objections the adopted putes and problems subsequently aris- ing over the compact and the Law of signing all states except Arizona strategy was to divide Colorado River ratified the compact. Arizona's water equally between Upper and the River. It is a situation that links

3 Governor Hunt faulted the compact and so in 1952, Arizona asked the compact must reckon with this legacy. for not allocating water directly to the U.S. Supreme Court for a judicial ap- Yet Arizona was merely acting to states, instead of to the basins. As per portionment. protect its interests. California was the compact, the law of prior ap- After 11 years the mammoth and using its congressional clout to propriations would not apply between complicated case concluded. The frustrate Arizona's claims. However, the basins, but if enforced within decision in Arizona y. California in turning to the courts - which basins, Arizona would be competing resulted in major power shifts, be- generally sided with Arizonathe with rapidly growing California. tween the states and between the state brought on unintended conse- The proposed Boulder Canyon states and the federal government. quences. project, which included construction Colorado River water was appor- Arizona's dispute with California of the All-American Canal and a high tioned, with California receiving 4.4 might truly be described as "living his- dam on the lower river, intensified maf, Arizona 2.8 maf and Nevada tory," having roots in the past but, at 300,000 af, with each state also the same time, sounding a theme that awarded all the water in their remains very much in force today. tributaries. Arizona was a big winner, Concern about California still stalks gaining almost all the advantages it Colorado Basin states, especially, sought in the 1922 compact. A nag- once again, Arizona, and greatly ging water supply problem was determines their Colorado River resolved. policies. In its quest for a settlement, however, Arizona cut across the grain of San ildefonso potteiy design the original compact, and its victory is Colorado River Use Today tinged with some sense of irony. The compact "apportioned from labors of the compact negotiators Thethe Colorado River in perpetuity animosity between Arizona and were greatly motivated by a desire to to the Upper Basin and the Lower California. The project increased avoid costly and lengthy litigation. Basin" 7.5 maf each per year. The California's access to the Colorado Yet, due to Arizona's efforts, the coni- states within each basin were to work River, to Arizona's distinct disad- pact has had not only its day, but out each state's allocation. Unable to vantage. The bill approving the literally years in court. One of the agree among themselves, the embat- project passed despite Arizona's ob- most complicated and hotly contested tled Lower Basin states settled the jections. Arizona then turned to the cases in U. S. Supreme Court history, matter in the courts. courts in an effort to get satisfaction, lasting 11 years and costing almost $5 The Upper Basin states proved but without success. million, Arizonat'.California easily more amendable to a cooperative set- In the early 1940s, Arizona began lived up to the worst fears of the com- tlement. (By reaching accord among to reassess its strategy. To effectively pact negotiators. themselves they avoided the more in- use its Colorado River apportion- Further, compact delegates dis- trusive federal role that their quarrel- ment, the water would need to be trusted, and in some cases actually some southern states brought upon delivered to the growing population feared federal involvement in themselves.) A contract was signed in in the south-central part of the state. Colorado River affairs. Arizona y. 1948 assigning 51.75 percent to State leaders realized that support for California opened the door to federal Colorado, 23 percent to Utah, 14 per- such a reclamation project would be participation. The decision inter- cent to Wyoming and 11.25 percent to contingent upon Arizona's ratifica- preted the Boulder Canyon Act as New Mexico. tion of the compact. On February 3, empowering the Secretary of Interior Percentages were given rather 1944, Arizona unconditionally ratified to act as water master of the Lower than actual amounts because by this the compact, 22 years after it was Colorado River, to apportion future time the Upper Basin states were un- negotiated. Negotiations for a Central surpluses and shortages among the sure of the amount of water they Arizona Project commenced. states and even among users within would have for themselves, after corn- Formal approval for such a the states. plying with the Law of the River and project, however, was not likely until Arizona's actions greatly con- delivering 7.5 maf per year to the California and Arizona resolved their tributed to undermining some of the Lower Basin states. dispute over Colorado River use. political ideals that motivated the The states vary to the extent they Lingering animosities prevented any making of the compact. Future ap- are currently using their Colorado agreement between the two states, plication and interpretation of the

4 recent development is considered an The Colorado "assessment buster. ") River Commis- In this manner Colorado River sion did not water is shared and used. The system consider has worked up until now mainly be- recreational cause the states have not been using uses of the their full allocations. As each state's Colorado supply is fully appropriated the sys- River when dis- cussing river tern will tighten. A milestone was management reached in 1990 when Arizona, issues in 1922. California, and Nevada consumed for It was not the first time the tota! Lower Basin's tinti! the 1992 7.5 maf allocation. passage of the Meanwhile each of the Lower Grand Basin slates has somewhat different Canyon Protection Act goals in managing ils Colorado River 1/tat tize recrea- water. In response to a directive from tiüiuil value of the Secretary ofthe Interior, Califor- tile Grand nia is working Ofl a plan to limit its Canyon and use of Colorado River water to 4. 4 the Colorado maf per year, ils legally apportioned River was amount. Nevada is seeking to obtain recognized. additional Colorado River water for the rapidly growing Las Vegas area, and Arizona is devising plans to use River allocation. Development is oc- a water bank, Arizona is expected to ils entire entitlement, by banking or curring much slower in the Upper use almost its full allocation for the recharging water not presently Basin states than in the Lower Basin first time this year. Before the water needed. and as result Utah, Wyoming, bank, the state did not expect to use Along with working out their Colorado and New Mexico have not its full allocation until the mid-2lst Colorado River plans and strategies yet used their full allocation of century. the states also must contend with Colorado River water. Meanwhile at the end of the line is various issues that compact delegates The rapidly growing Lower Basin thirsty southern California. California did not address and that later arose states have a more immediate need of long has profiled from other states to prominence. Some, like environ- their Colorado River apportionments. not using their full allocations. Con- mental concerns, were not recognized Southern Nevada anticipates that the veniently located downrivcr, Califor- as important al that time, while state's 300,000 af Colorado River al- nia has been diverting unused water others, like Indian water rights, were location along with its groundwater apportioned to other states. Although simply side-stepped by compact resources will meet its needs only allocated 4.4 maf of Colorado River negotiators. The result was that Law until about 2015. OfficiaIs are water, California is using about 5.2 of the River would he in the making vigorously exploring options for oh- mafin 1997. for many years to come. Many of taming more water, including dipping (The table on page 6 shows projec- those neglected issues are among the into Arizona's hitherto unused por- tions of Colorado River use for each most important facing westerners lion. basin state. Although the report is today. The Central Arizona Project was fairly recent, the 1990 figures still are to enable Arizona to more fully use considered estimates since obtaining its full 2.8 maf allocation of Colorado final information is a lengthy process. Indian Water Rights Efforts are currently being made to River water. Transported CAP water, of the Colorado River facilitate the acquisition and tabula- however, has not sold as readily as ex- DraftersCompact were not unduly con- lion of data to ensure a more timely pected. As a result, Arizona in recent cerned with Indian water rights. Ar- release. Also, these figures do not years still used only part of its alloca- tide VII, the compact's token acknow- take into consideration the effects of lion, leaving from 300,000 to one maf ledgement of Indian water rights, was in the river. With the establishment of Arizona's new water bank. This

5 inserted at the insistence of Herbert COLORADO RIVER BASIN DEPLETION PROJECTIONS (Unit: 1,000 aflyr) Hoover. Article VII simply states, "Nothing in this compact shall be con- 1990 2000 2010 2020 strued as affecting the obligations of Upper Basin the United States of America to In- dian Tribes." Colorado 2,296 2,445 2,565 2,636 It was not that Indian water rights New Mexico 503 535 641 743 was a nonissue at the time. The 1908 Supreme Court decision Winters y. Utah 857 951 1,030 1,073 United States recognized Indian water Wyoming 495 505 530 539 rights regardless of whether a tribe had used the water or not, with rights Totals 4,151 4,436 4,766 4,991 established at the time reservations Lower Basin were created. Further, the decision 258 304 341 stated that the state in which a reser- Nevada 214 vation is located must fulfill the tribal Arizona 1,351 2,019 2,373 2,537 water right. Indian water rights then California 5,162 4,916 4,823 4,622 was a looming question, not one to be left hanging. Totals 6,727 7,193 7,500 7,500 The neglected issue was to return with a vengeance in the 1963 Supreme Source: Quality of Water, Colorado River Basin Progress Report, Number 18, January 1997. Court decision Arizona y. California. US. Department of the Interior Report. Along with determining the Colorado River rights of Arizona, Nevada and acquired about one maf. Navajo Tribe, remarked at the con- California, the decision also quan- Along with the above-mentioned ference that he is unable to figure a tified federal reserved rights of the tribes, other Arizona tribes have claim under five maf. Pollack referred five Indian reservations along the potential claims to Colorado River to the Navajo Tribe with its unquan- lower Colorado River: Chemehuevi, water. Walapai and Havasupai claim tified water rights as a "sleeping Cocopah, Colorado River, Fort to have rights, although neither has giant" and viewed Indian water right Mohave and Quechan (Fort Yuma). taken any legal action. About 180 claims as possible "compact busters." The court granted the reservations miles of the Havasupai reservation Quantification is not the only In- enough water to irrigate all practica- borders on the Colorado River. dian water right to be settled. Lacking bly irrigable acreage within their Still unquantified and conceded to sufficient development to put all their boundaries. The water was to come be potentially huge, the Navajo water to use, some tribes view market- from the Lower Basin states' Tribe's water rights claim could cut ing as a means to earn needed in- Colorado River apportionments. into the Colorado River apportion- come. Questions and controversies Under this standard, five Indian reser- ment of four states: Arizona in the thus arise. For example, should tribes vations with a total population of Lower Basin and New Mexico, be allowed to market water out-of- about 10,000 were granted ap- Colorado and Utah in the Upper state? States generally prefer limiting proximately 900,000 af of water. The Basin, with the major burden on tribes to intra-state water marketing. lower Colorado River reservations Arizona. The reservation is 25,000 The legal status of tribes to market presently are using about 80 to 90 per- square miles and is located entirely their water remains relatively un- cent of their entitlement. within the Colorado River basin. Its defined. Various entities, including in- Because of this landmark case western boundary is the mainstem of dividual states, the U.S. Department these tribes have the best water rights the Colorado River, and two of the Interior and the tribes themsel- along the Lower Colorado River. tributaries, the San Juan and the Lit- ves, have expressed different From neglected interests or parties, tle Colorado rivers, flow through opinions. Some officials believe a Indians became major players. tribal land. court case, possibly at the U. S. Indians of the Upper Basin states Some officials have speculated on Supreme Court level, will be needed do not have a comparable court case what the Navajo claim might be. to settle the controversy. to define their water rights. Through Noting two such publicized figures, In the matter of water transfers, federal legislation and court cases, about two maf and five maf, Stanley tribes generally view themselves as however, the Upper Basin tribes have Pollack, special counsel for the sovereign entities, not unlike states.

6 Gary Hansen, attorney for the dividual water users traditionally supports the transfer and marketing Colorado River Indian Tribes, said made allocation decisions for par- of Colorado River water. The Wall that, under the Winter's Doctrine, ticular beneficial uses, the compact Street Journal article noted above tribes have complete control of all empowered individual states to allo- quotes Interior Secretary Bruce Bab- beneficial uses of their land and cate their apportionment of Colorado bitt as saying, "Without water water. Tribes therefore have the right River waters. Decisions thus became markets we can't solve the problem of to lease their water to interested en- more complicated and raised the meeting the future water needs of the tities, without the interference of the political stakes. West." states in which their reservations are Tim Quinn, general manager of In its role as manager of the located. As might be expected states the Metropolitan Water District of Colorado River, the U. S. Bureau of contest this view. Southern California, described the Reclamation (BuRee) released draft perils of water marketing, at least in regulations in 1994 with provision for California where political pitfalls intrastate and interstate transfers of Water Marketing prove to be especially ominous. He certain types of water: unused entitle- ments or water conserved in the marketing is another issue said, "The institutions we are living Lower Basin. Controversy arose, with Waterto emerge to challenge the com- with are not in alignment with the in- pact and the Law of the River. Water creased acceptability of water market- states objecting, Arizona the most ing ... Any water transfers must run a marketing would enable water - in vigorously, to what was perceived as a this case, Colorado River water - to gauntlet at the local, regional, state federal infringement on state be transferred, leased, or sold, from levels. We have a long road to travel Colorado River rights. BuRee sub- one party to another. Different trans- before we have reform." sequently stepped back, allowing the A Californian may well be dis- states and tribes an opportunity to actions are possible, between entities within a single state or different enchanted with the present water devise their own water banking and states, either states within the same marketing arrangements since the marketing plans. Meanwhile BuRee is basin or in different basins. (The legal state now is embroiled in an involved revising its regulations which when and political acceptability of these op- released will again support transfers tions vary.) Many view water market- and marketing. ing as a suitable, even a preferred Prompted by the federal action the strategy to help Colorado River states Arizona Legislature in 1995 created a meet increasing and changing water state water bank. The bank serves demands. The Santa Fe conference in- several purposes. For one, it is a strategy for Arizona to secure the un- cluded a panel on water marketing. used portion of its 2 8 million acre- Seemingly sensible in theory, such arrangements, however, are very com- foot Colorado River allocation. San Ildefonso pottely design plicated to work out, especially when Arizona feels very protective about Colorado River water is at issue. its unused Colorado River allocation, aware that thirsty California and Several factors complicate the situa- and embittered intrastate effort to tion, but according to conference Nevada have designs on it. Up until market water. The parties in the trans- CAP came on line in 1985, the state panelists the principle constraint is fer are the Imperial Irrigation Dis- was able to use only about 1.5 maf of politics. trict, the Metropolitan Water District its 2.8 million allocation. As noted Panelist Larry MacDonnell, a and the San Diego County Water Colorado lawyer, called the Colorado earlier even with CAP on-line Authority. The proposed deal is a Arizona still was not using its full al- River the most political river in the complicated, highly contested West, a situation that greatly compli- location. proposition; at stake are vast amounts Arizona's water bank is to save cates its management. He argued that of money and the control of Colorado the compact contributed to this situa- sonic of that water for use in the River water. The situation has at- state. Plans call for 260,000 af of tion in various ways. By dividing river tracted national attention, most water between Upper and Lower Colorado River water to be delivered recently in a front-page story in the via the CAP aqueduct to central and Basin states, the compact created July 11 Wall Street Journal. The ar- competing interests, each maneuver- southern Arizona, for underground ticle is subheaded: "Why Markets storage in existing aquifers or to be ex- ing to achieve maximum advantage. Seem Inevitable." Further, whereas in the West in- changed with water districts that Meanwhile the federal government pump groundwater. Mainly because

7 of the bank's activities, BuRec is terstate and intrastate movement of flood control and storage projects, to predicting thai Arizona will use its water must be answered. According better manage the river to serve full entitlement for the first time in to panelist Robert Johnson, Lower human needs. This boosted states' 1997. Basin States regional director, potential to grow and develop. Along with storing the state's un- whatever breakthroughs occur in the Such a strategy, however was unused Colorado River allocation, the near future regarding water market- dertaken at a great cost to the en- Arizona water bank also provides ing and transfer likely will apply only vironment, and a range of environ- water storage services to California to intrabasin transfers. He said that at mental concerns now beset the and Nevada. These states can pay present the legal and political Colorado River, both in the United Arizona to store any of their unused obstacles are sufficiently formidable States and Mexico. For example, Colorado River water and then to prevent exchanges between the dams and diversions, with water used receive credits depending upon how Upper and Lower Basin states. and reused, created conditions very much water is stored. Pursuant to unfavorable to native fish species. Not rules to be adopted by the Interior only do dams block fish passage, they Secretary, Arizona would restore the Colorado River also reduce spring flows, trap silt, and water to the states in the future. Environmental Concerns alter water temperatures, all to the Arizona would do this by using their the Colorado River Compact disadvantage of native species. Fur- ther, regulated flow destroys inner stored groundwater instead of its Thatdid not include provisions to Colorado River apportionment. The protect the environment is no more canyon beaches and is detrimental to states could then pump water directly surprising than that Model T's did spawning habits of native fish. The in- from the river up to the credited not have seat belts. Ideas mature, troduction of exotic fish posed a fur- amount they stored in Arizona. ripen and have seasons. 1922 was not ther threat to native fish. Four species The Arizona water bank is not a the season for environmental protec- of native fish are endangered in the marketing strategy. Instead, it tion. Colorado River Basin. provides an interstate service through Environmental issues, however, A history of environmental neglect its conjunctive use of Colorado River are very prominent on the Colorado on the river and in many other areas surface water and Arizona River today. Patricia Beneke, Assis- throughout the United States signaled the need for protective measures. groundwater reserves. In this way it tant Secretary for Water and Science, encourages greater flexibility in U. S. Department of the Interior, One such measure, the 11973 En- dangered Species Act (ESA), greatly Colorado River management. stated at the conference that environ- Despite present difficulties some mental concerns will be the next complicated Colorado River manage- officials view water marketing as the generation of issues on the Colorado ment. New criteria now were to he met. Harnessed to turn turbines and future of Colorado River manage- River. ment. MacDonnell claims water An environmental ethic arises as a irrigate crops, the river now was marketing represents the "third force in contemporary life through a viewed as part of an ecosystem, its generation of the division of the somewhat different historical process flora and fauna to be protected and waters of the river." The first genera- than, say, water marketing and to preserved. Controversy thus arose tion occurred when the compact ap- some extent Indian water rights. whether valuing a river as a vital part of an ecosystem would interfere - if portioned water between the Upper Espousing an environmental ethic in- and Lower Basins. The second volves a shift in thinking, a reorienta- not actually conflict - with using its generation extends from 1922 to the tion of values, away from the human- waters for strictly utilitarian purposes. This controversy lingers today to fuel present and is characterized by centered and toward acknowledging environmental debates about the development determining water an obligation to the natural world. division. A strong presence during Development, however, was the river. generations one and two, politics ac- overriding concern of the 1922 com- Who is to bear the cost of environ- cording to MacDonnell is expected to pact. Its intent was "to secure the ex- mental protection is an unresolved play a less heavy-handed role during peditious agricultural and industrial issue. In a panel devoted to environ- the anticipated third generation. development of the Colorado Basin, mental concerns, John Leshy, Market forces are likely to gain the storage of its waters, and the solicitor, U. S. Department of the In- greater influence. protection of life and property from terior, expressed concern that the Before more transferring and floods." Establishing Colorado River costs of ESA environmental remedies is being unfairly borne by some water marketing of Colorado River water rights was a prerequisite to building occurs, basic questions about the in- users. For example, Indians have

8 Two Publications Explore COlorado River Past and Future

The May 28-31 Santa Fc conference was titled "Using Colorado Rivers, îwzning through the Navajo Nation, sup- History to Understand Current Water Problems." The plied l4percent ofthe water in the dan:, but almost half its conference and its presentations stressed the importance silt. The conclusion was obvious. Overgrazing on the of looking beyond the present to better grasp the fuller Navajo Nation, with its consequent erosion and siltation implications of an issue. would have to stop ifihe dam was to be saved. Two Water Resources Research Center-related publi- As onefederal official explained to the Indians, "Down cations help provide readers with this wider perspective there on the Colorado River is the biggest, most expensive to water issues. dam in the world, the Boulder Dam now being built which wilifurnish all Southern California with water and with Severe Sustained Drought: Managing the Colorado electricpower, and the BoulderDam will befihled up with River System in Times of Water Shortage iS concerned your fine agricultural soil in no great number ofyears if we with the future, not the past. The publication discuss do not stop erosion on the Navajo Reservation...and how a future drought would affect Colorado River thereby injure the population of all Southern california management. "The Severe Sustained Drought Study con- and a good deal of Arizona as well." The Soil Conserva- templates a much more dire water supply scenario than tion Service concluded that if overgrazing was not halted, that which has occurred in the past century. ... The SSD "the entire alluvia/fill of most of the valleys of the Navajo researchers have created a highly plausible scenario of Reservation will be deposited behind the dam. ..." Even severe and sustained drought and used that as a means before construction, the Bureau of Indian Affairs forester of assessing what the hydrologic, social, and economic had reported that 1.3 million sheep and goats were grazing impacts of such drought would be under the current law less than 12 million acres, about twice what the land could of the river....The SSD researchers have also explored support. what possible combinations of changes in institutional ar- As a result, about half the grazing animals (many of the rangements regarding how the river is operated might be goats) were destroyed from 1935 to 1946. Unfortunately, made to reduce or mitigate the impacts of such a while changes in grazing practices were necessamy for range drought." health, the way the program was carried out resulted in The above publication was sponsored by the Powell enonnous hardships for the Navajos, especially after tite Consortium, an alliance of seven Water Resources Re- droughts of the 1930s. Some Navajos starved because search Institutes and Centers from the states of Arizona, goats were a mainstay of their diet and the last refuge when California, Colorado, Nevada, New Mexico, Utah and other food sources failed. Livestock and agriculture, which Wyoming. accounted for 54 percent of total Navajo income in 1936, dropped to 10 percent by 1958. Stock numbers have never Arizona Changing Rivers: How People Have Affected app roachedfonner levels. the Rivers by Barbara Tellman, Richard Yarde and The effort, however, failed to reduce silt buildup behind Mary G. Wallace provides a big picture by describing his- Hoover Dam. By the 1950s silt was still coming down the torical changes to the major rivers in Arizona. Following river as it had for centuries, and building up behind the is an excerpt: dani. Overgrazing was only one source of silt. One of the reasons for building Glen Canyon Dam was to solve the Stock Reduction "Saves" Hoover Dam Hoover Dam silt problem. Silt now builds up behind Glen Hoover Dam, which provides energy for southern Canyon Dam and isn't available to replenish soils and California and parts of Arizona, may seem unrelated to beaches downstream. the Navajo Nation which is far to the east of it. However, the interconnectedness of rivers is illustrated by the stock Each of the above publications is available for $15, redudilon program on the Navajo Reservation which began plus shipping and handling charges, from the Water in 1934. When Hoover Dam was being built in the 1930s, Resources Research Center, University of Arizona, 350 engineers were worried that silt deposits behind the dam N. Campbell Avenue, Tucson, Arizona 85721. Phone: would decrease storage capacity. The San Juan and Little 520-792-9591; FAX: 520-792-8518.

9 been late in using their water due to a cooperative bi-national effort, with power generation. In the event of lack of capital to develop projects. basin states agreeing to an ap- financial hardship would such a com- The Upper Basin states also have propriate strategy, possibly involving mitment be maintained? More broad- been late in developing their water. a reduction of their Colorado River ly, what changes would a financial They now must contend with ESA supplies. crisis impose on Colorado River provisions that those who developed Reviewing the compact and its ef- management? their water earlier avoided. Leshy fect on the environment broadens the Another contingency that would af- questions whether it is fair that those study of history. Along with showing a fect river management is severe sus- who developed their water uses after connection between past, present and tained drought. Again history, this the passage of the ESA should future, a study of the Colorado River time the history of Colorado River shoulder the major environmental Compact also demonstrates how flows, can help set public policy direc- cost for overall basin recovery. human and natural history interact. tives. Historical records indicate that Not to be ignored are environmen- This awareness deepens and enriches droughts of various severity occur pe- tal problems in Mexico resulting from the meaning of history. riodically. Tree ring records show this country's management of the Responding to natural forces, that 1584 to 1593 was a period of Colorado River. Located in Mexico, rivers have a history apart from severe drought, with Colorado River the Colorado River delta once was humans. In seeking to use and control flows averaging about 9.7 maf. More lush with vegetation and wildlife. But rivers, whether with a primitive, hand- recently, the period from 1954 to 1963 the construction of 29 dams and dug irrigation ditch or the very com- averaged 11.826 maf. (See sidebar on numerous up-river diversion projects plex Law of the River, humans im- page 9 for information on the effects during the past 60 years has deprived pose their history on the river. of drought on the Colorado River.) the delta of natural water flow, with Human history then affects and, in Water shortages were not on the its vital supply of silt and nutrients. turn, is affected by the river's natural minds of compact negotiators; in fact, As a result, the delta fell victim to history. The workings of this process they seemed to believe that surpluses Colorado River development. Delta is very evident when examining en- were more likely. As a result, the corn- wetlands now persist only where fed vironmental concerns along the by agricultural drainage water or Colorado River. from groundwater seepage. Arizona's Wellton-Mohawk Irriga- tion District's drainage flows now Future Uncertainties make up the primary source of water demonstrates the need of for the Cienega de Santa Clara, the ¡Jistorythe compact and the Law of the delta's largest estuary. The district River to be flexible in meeting new began channeling its highly saline circumstances. Future situations no San ildefonso pot teiy design drainage into the delta in 1977 to doubt will arise to further challenge keep flows from draining into the the legal and institutional arrange- mainstem of the Colorado River and ments regulating the Colorado River. pact does not include provisions to adding to the river's water quality One such occurrence briefly dis- problems. If the Yuma desalting plant deal with shortages due to drought. cussed at the conference is if the Some strategies adopted pursuant were to come fully on-line, Weliton- United States suffered an economic Mohawk's drainage would be treated to the Law of the River are efforts to setback due to a prolonged period of cope with drought. Water storage for release into the mainstem of the inflation, recession or even a depres- river. The Cienega de Santa Clara facilities built by BuRec provide sion. A reordering of river manage- drought protection to the states, par- would then be deprived of its vital ment priorities might then occur. For water source. ticularly the Lower Basin states. example, support for recreational and These facilities have a capacity of The minimal Colorado River flow environmental efforts might be ques- allocated to Mexico by the Law of the about four times the annual flow of tioned. The Grand Canyon Protec- the Colorado River and are capable River is not sufficient to protect and tion Act of 1992 requires that river preserve the delta. As a result, any of redistributing water from wet years managers consider rereationa1 and to dry years, at least in response to preservation efforts must involve fish and wildlife concerns. The act maintaining or increasing inflows, normal climatic fluctuations. moderated somewhat the strategy of A prolonged drought, however, especially on a long-term basis. Offi- regulating river flow to maximize cials note that this will require a would strain the entire system. Who

10 in a study of the Colorado River Corn- pact. In "Future Scenario: On the Proceedings to be Published Colorado River," a concluding ses- Siofl at the Santa Fe conference, Gary Proceedings of the symposium Using Histoîy to Understand current Weatherford, attorney with Weather- Water Problems are expected to be available at the end of the year. ford & Taaffe, conveyed a sense of Papers will be included from the various sessions - "States' Perspective that change by chronologically listing 1922;" "Federal and State Issues After the Compact: Then and Now;" various events. "History of Conflict and Consensus on the Colorado River;" "Post Com- Weatherford emphasized the rela- pact Issues: Upper and Lower Basin;" Law of the River Panel;" "Environ- tively brief time span, 68 years, be- mental Issues: Looking at the Whole River;" "Water Marketing Panel;" tween when the compact became ef- "Historical Perspective on Western Land and Water Law;" and "Future fective in 1929 to the present. He Scenario: On the Colorado River." Persons interested in the proceedings also mentioned that only 5] years should contact: Western Water Education Foundation, 717 K Street, have passed since the Upper Basin Suite 517, Sacramento, CA 95814; 916-444-6240; fax: 916-448-7699; Email: states submitted to Congress their [email protected]. Colorado River planning document. This was at about the same time that the Central Arizona Project was offi- then has priority water rights from a rights under the Winters Doctrine to cially presented. Lake Powell was drought-stricken Colorado River? be present perfected rights. filled 35 years ago. Three years ago This is a debated issue. Reference to The compact directs the Upper Arizona expected not to be using its the compact and key elements of the Basin states to deliver 75 maf in any full CAP allocation until 2040; last Law of the River suggest some- ten-year period to the Lower Basin year Arizona amended its prediction, answers. Interpretations, however, states. To help the Upper Basin states now expecting full use by 1998. Public vary; a different legal view might find make good this obligation, the policy changes occur swiftly along the fault with the following premises. Colorado River Storage Project Act Colorado River. Recognizing the likelihood of a of 1956 authorized four projects. In Not only does public policy run a Colorado River treaty with Mexico the event of a severe drought, the swift course but it also broadens to the compact designated that water for Upper Basin states might need to cur- cover new areas. Consider three is- that country would come from unallo- tail water use to fulfill their delivery sues not addressed by the compact: cated "surpluses" then thought to be obligation. water quality, endangered fish, and available. Upper and Lower Basin With the occurrence of drought, recreation. As these issues emerged states would equally make up any various ambiguities and uncertainties the need for regulatory action be- resulting "deficiency." A 1944 U.S- no doubt would surface to challenge came apparent. In response, the 1974 Mexico treaty allocated 1.5 maf of the Law of the River. Not securely in Colorado River Basin Salinity Con- Colorado River water to Mexico. in place are the necessary legal and in- trol Act was passed to deal with the absence of surpluses, it would stitutional mechanisms to interpret salinity and water quality; the 1973 seem that the Upper and Lower the priories, define various options Endangered Species Act protected Basin states, according to the com- and devise strategies for dealing with endangered fish; and the 1992 Grand pact, must each provide 750,000 af for drought. Canyon Protection Act recognized Mexican use. Some say this would be the recreational value of the a priority even during severe, sus- Colorado River to Grand Canyon Na- tained drought. Conclusion tional Park. Meeting "present perfected rights" Greek philosopher once said a Change and the Colorado River pre-dating the compact including erson never steps into the same also can be viewed from another tribal reserved water rights also might river twice. Water flows and surges broader perspective, from one era to be a priority. The compact designated onward, replacing and replenishing it- another. The Colorado River Com- that its provisions would not affect self. And, indeed, in philosophy and pact was instrumental in inaugurating such rights. At the time, this mainly literature a flowing river often symbol- the age of great water projects, built referred to irrigators using Colorado izes change and the passing of time. to ensure that water supplies would River water. The 1964 Supreme That a flowing river represents be available and delivered when and Court decision california y. Arizona change might also be borne out in where needed. That era has ended; in- recognized tribal reserved water public policy matters. This is evident stitutional and management strategies

11 have replaced engineering feats in Water Resources Research Center Advisory Committee solving water supply problems. The compact is a monument to this Phil Briggs, Geraghty and Miller, Inc. Floyd Marsh, City of Scottsdale change, a bridge from one era to William Chase, City of Phoenix Michael McNulty, Brown & Bain another. Herb Dishlip, Arizona Department Errol L. Montgomery, Errol L. By reviewing history, the con- of Water Resources Montgomery & Associates ference also was encouraging a look Karen Heidel, Arizona Departmentt Douglas C. Nelson, Arizona Rural ahead, because what is true of the of Environmental Quality WaterAssociation past may he true of the future. His- Chuck Huckelberry, Pima county Robert O'Leary, Water Utilities tory shows that the compact and the David C. Iwanski, Agri-Business Association of Arizona Law of the River have evolved to con- Council of Arizona David "Sid" Wilson, Cent ralArizona front emerging issues. This historical John L. Keane, Salt River Project Water Conseivation District record lends confidence that further Lois Kulakowski, Southern Arizona Don W. Young,Arizona Attorney evolution will take place to meet fu- Water Resources Association General's Office turc Colorado River priorities, whether urban growth, environmental goals or water marketing and The contents of this publication do not necessarily reflect the views or policies of transfer. any of the above individuals or organizations.

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