and improved knowledge of the river. The apportioning of the river began with the 1922 Colorado River Compact, a deal by seven Western states to divide the river and its tribu- taries into two basins, the Upper Basin and the Lower Basin. Each basin was allotted 7.5 million acre-feet per year. In 1948, the Upper Basin states entered into an agreement allocating its 7.5 million acre-feet between Colorado, New Mexico, Utah and Wyoming on a percentage basis. Through a 1944 international treaty, the United States agreed to deliver 1.5 million acre-feet annually to the Republic of Mexico, half from the Upper Basin and half from the Lower Basin.
The Compact allocated the water among the Lower Basin states of Arizona, California and Nevada in specific amounts – 4.4 million acre-feet for California, 2.8 million acre-feet for Arizona and 300,000 acre-feet for Nevada. These amounts were ultimate- ly upheld in the 1963 Supreme Court Decree Arizona vs. California. These are just a few of the items included in the Law of the River, which stretches from the 1922 Compact through the recent seven-state agreement. Some people believe the time has come to revisit the Law of the River. “I don’t think it’s an exaggeration to say the Law of the River no longer serves us,” said Dan McCool, politi- cal science professor and director of the Environmental and Sustainability Studies Program at the University of Utah. “It is an anachronism; it doesn’t work, it actually never worked very well and it’s based on some fallacious assumptions.”
In a 2010 essay published in High
Country News, “Warning: Water Policy Faces an Age of Limits,” McCool called for “a new era in water management,” with the first step requiring “dispensing with the absurd notion that infinite growth can take place in a region with severely constrained resources.” Others disagree, pointing to a host of agreements signed in the last 20 years that have added flexibility to the Law of the River.
November/December 2012
While the Study is mum on re- opening the Compact, it does talk about solutions that rely on “institu- tional flexibility,” such as a possible Upper Basin water bank, which would allow users to manage water in such a way as to avoid any risk of curtailments under the Compact during protracted dry periods, Pitt said. “Clearly, it would be problematic for these Upper Basin states to find out they would have to curtail huge volumes,” she said. “A bank is a way to manage proactively such that you don’t approach that crisis point.” A banking proposal “is just one of several concepts that need to be studied to determine if something will work and be beneficial,” said Don Ostler, executive director of the Upper Colorado River Commission. “We really have not developed any details at this point but collectively the Upper Basin Commission and states will be looking at all means of address- ing potential issues raised in the Basin Study report,” Ostler said.
McCool is among those who be- lieve it is time for a new management regime for the river. The Compact “has certainly become an albatross, but I could also add the Prior Appropriation Doctrine, limitations on basin-wide water marketing, the lack of instream flow provisions, and the endless conflict over federal reserved water rights – which are essential to a sustainable future for the river,” he said. Talk of re-opening the Compact and other river regulations is a non- starter for those who lived with the operating procedures for so many years. “When you talk about changing regulations and opening up agreements like the Compact … we don’t think that’s appropriate at this time because it introduces inconsistency into look- ing at options to solve the problems and could create instability,” SNWA’s Moore said, adding “there is enough flexibility within the current law.” Kightlinger said that “while far from a perfect system, the Law of the River, and all associated agreements, provides a stable foundation for
“A [water] bank is a way to manage proactively such that you don’t approach that crisis point.”
– Jennifer Pitt, EDF
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