Guest opinion: Bottom line is, we all face using a lot less water from the Colorado River |

Guest opinion: Bottom line is, we all face using a lot less water from the Colorado River

Ken Neubecker
Ken Neubecker on the river with Gus.

This winter has been a record breaker. The Upper Basin snowpack is at an all-time high and the runoff in our rivers is expected to be similar. While the Drought Monitor shows nearly all of Colorado being drought free, we are by no means out of the woods.

Make no mistake, we are still in the grips of the megadrought, or aridification, that began 23 years ago. This year’s runoff will help put a bit of water back into Lakes Mead and Powell, but they are still at record lows and it will take far more than one winter’s snowpack to bring them back.

The Federal government, through the Department of Interior, issued an ultimatum to the seven Colorado River Basin states to find water and help these reservoirs through conservation, to the tune of 2 to 4 million acre feet. That’s a lot of water. The various states have both the 1922 compact and their own laws and traditions for dealing with water shortages, using prior appropriation, first in time, first in right as their foundation. Recently, the DOI stated that if the states couldn’t reach agreement, they would, and laws regarding prior appropriation may be ignored. Where do the Feds get this kind of authority?

In 1963, the US Supreme Court ruled in favor of Arizona, ending a 10-year lawsuit between Arizona and California. That decision is important for the current discussions regarding the Colorado River and the role of the states and the federal government. It “clarified” some of the key sticking points of dispute within the Lower Basin.

First, it quantified the amount of water allocated to California, Arizona and Nevada from their share under compact. Second, it made the federal government the River Master for the allocation of these apportioned flows to the Lower Basin states. It says that under the 1928 Boulder Canyon Projects Act that “Congress intended to provide its own method for complete apportionment of the mainstem water…” and that the Secretary of the Interior would “control the apportionment of water…” and “in choosing between the users within each State… under the terms of the various contracts that Interior had entered into.”

It also tosses out the notion of Prior Appropriation in its allocations from Federal projects. “Section 8 of the Reclamation Act does not require the United States, in the delivery of water, to follow priorities laid down by state law…”

A later Act that authorized the construction of the Central Arizona Project subordinated Arizona’s water claims to California. That’s why Arizona bears the brunt of cuts to water before California under the 2007 Interim Guidelines.

This applies only to water supplies that were created and contracted by the federal government, not water supplies with no association to federal projects. For the lower Colorado River, that means all the reservoirs on the mainstem below Glen Canyon. It is also fairly specific in its focus on the Lower Basin States, not the Upper Basin states.

Does this mean it then could also apply to water supplies from the many Bureau of Reclamation projects in the Upper Basin? Does this 1963 decision imply that the entire Colorado River mainstem is subject to federal control? Rifle Gap and Ruedi Reservoir are BOR projects, among many others in western Colorado. Some historians argue that it could.

Six of the seven basin states have come up with a plan. California came up with its own, relying heavily on prior appropriation and senior water rights. Colorado has made the argument that we have already made substantial reductions of use. The upper Basin uses far less water than their full compact allocation would allow, while the Lower Basin uses far more. California and the Imperial Irrigation District, by far the biggest water user on the river, claim seniority.

Reductions need to be hammered out by August. All of this needs to be figured out by 2026 when new guidelines are to be in place. And now the tribes, with their very senior rights, are engaged after being ignored for decades.

And then there is the matter of climate change and increasing aridity within the Colorado River Basin. This may be a bumper water year, but we’ve had a couple already within this mega drought. Heavy snows in one season do not break long-term aridification and water managers don’t expect it to.

That reality also has a seat at the table. Discussions continue in earnest and will not be easy. We will see what comes out before too long, what actions the states are willing to bind themselves to and what kind of actions the federal government takes. I’m sure lawyers are gearing up for a fight, one none of us can really afford.

Regardless of the final outcome we all face using a lot less water from the Colorado River. That’s the bottom-line reality. Wishful hoping for more winters like this won’t work.

Ken Neubecker of Glenwood Springs worked for American Rivers for nearly 10 years. Now semi-retired, he is self-employed through his own firm, Western Rivers LLC, and is also an avid photographer and writer addressing western water and river issues.

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