Shared risk at the heart of dispute over Colorado River

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3 days ago

Railroad tracks run along the Colorado River as it flows along Interstate 70 through Glenwood Canyon near Glenwood Springs. (William Woody for Colorado Newsline)
A version of this story originally appeared in Big Pivots.
Even-steven. That was the intent of delegates from the seven basin states in 1922 when they met near Santa Fe to forge a compact governing the Colorado River.
But what exactly did they agree upon? That has become a sticking point in 2025 as states have squared off about rules governing the river in the drought-afflicted and climate-changed 21st century. The negotiations between the states, according to many accounts, have been fraught with tensions. Becky Mitchell, Colorado's lead negotiator, delivered a peek into that dispute at a forum on May 22 in Silverthorne along the headwaters of the river.
The Colorado River Compact was a quid pro quo. California, in particular, but also Arizona, was ready to see the highs and lows of the rivers smoothed out. They, as well as Nevada, wanted a giant reservoir in Boulder Canyon in Nevada near the small town of Las Vegas, which then had a population of 2,300. Those Southwestern states couldn't do it alone, though. They needed the federal government to build the dam later called Hoover. For that, they needed the support of Colorado and the three other upper-basin states.
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Colorado, represented by Delph Carpenter, and the three other headwaters states realized that they had best reach a compromise, as they would more slowly develop the rivers. If the doctrine of prior appropriation that they had all adopted within their own states prevailed on the Colorado River, the water would be gone by the time they found need for it.
This was the foundation for Article III of the Colorado River Compact. It apportions 7.5 million acre-feet in perpetuity for the exclusive beneficial consumption by each of the two basins. On top of this 15 million acre-feet, they knew there would be water lost to evaporation, now calculated at 1.5 million acre-feet annually, plus some sort of delivery obligation to Mexico, which later turned out to be 1.5 million acre-feet.
In Santa Fe, delegates had assumed bounteous flows in the river, as had occurred in the years prior to their meeting. And so, embracing that short-term view of history, they believed the river would deliver 20 million acre-feet.
It has not done so routinely. Even when there was lots of water, during the 1990s and even before, as Eric Kuhn and John Fleck explained in their 2019 book, 'Science be Dammed,' troubles ahead could be discerned. And by 1993, when the Central Arizona Project began hoisting water to Phoenix and Tucson, the river ceased absolutely to reach the ocean.
Then came the 21st century drought. Those framing the compact understood drought as a temporary affliction, not the multi-decade phenomenon now perplexing the states in the Colorado River Basin.
Nor did they contemplate a warming, drying climate called aridification. Similar to drought in effects, it is rooted in accumulating atmospheric gases. Unlike drought, it has little to no chance of breaking.
Now, faced with creating new rules governing the sharing of this river, delegates from the seven states are at odds in various ways, but perhaps none so much as in their interpretation of compact's Article D. It says that the upper-division states 'will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre-feet for any period of ten consecutive years.'
The lower division states have so far received 75 million acre-feet over every revolving 10-year period. The upper-basin states have not fully developed their apportionment, although Colorado has come close. In the last 25 years, the upper-basin states have been using 3.5 million to 4.5 million acre-feet. The lower-basin states that a decade ago were still using 10 million acre-feet have cut back their use to 7.5 million acre-feet.
Lake Powell serves as a water bank for the upper basin states. The storage in 2022 had declined to 22%, although a good snow winter in 2022-23 restored levels somewhat. Today, the two reservoirs are at a combined 34% of full.
'That means 66% empty,' said Mitchell at the forum along the Blue River in Silverthorne at a 'state of the river' forum organized by the Colorado River Water Conservation District.
Mitchell, an engineer by training, has a large on-stage presence. She's not one to mince words, sometimes straying into the colloquial. This outspokenness is more evident when she speaks exclusively to a home-town crowd. Silverthorne certainly counted as one.
Shared risk is at the heart of the dispute. Colorado and other upper-basin states want the lower-basin states to accept that the river will not always satisfy all needs.
'How do we handle drought? We know how to do that in the upper basin, and most of the people in this room know that you get less,' said Mitchell, Colorado's representative on the Upper Colorado River Commission. 'That hasn't been the case in the lower basin.'
The two basins differ in three fundamental ways. One is the pace of development. The lower basin developed quickly. The upper basin still has not used its full allocation. From the upper-basin perspective, that does not mean that the lower-basins states should expect something beyond a 50-50 split.
'The main thing that we got from the compact was the principle of equity and the ability to develop at our own pace,' said Mitchell. 'We shouldn't be punished because we didn't develop to a certain number. The conversation now, she added, is 'what does equity look like right now?'
Another difference is that the upper basin has thousands of individual users. Sure, there are a few big ones, like Denver Water and the other Front Range transmountain water diverters who collectively draw 400,000 to 450,000 acre-feet annually across the Continental Divide. The lower basin has just a handful of diverters, and the diversions are massive.
Also different — as alluded to by Mitchell — is that the lower basin has the big reservoirs lying upstream. The largest is Mead, with a capacity of almost 29 million acre-feet, followed closely by Powell at a little more than 25 million acre-feet. Mead was created expressly to meet needs of irrigators and cities in the desert southwest.
Powell was created essentially to ensure that the upper-basin states could meet their delivery obligations. Mitchell shared a telling statistic: More water has been released from Powell in 8 of the last 10 years than has arrived into it.
Upper-basin states must live within that hydrologic reality, said Mitchell. If it's a particularly bad snow year in the upper basin, the farms and ranches with junior water rights and even the cities can get shorted. The lower basin states? Not a problem. They always get their water — at least so far. But the two big reservoirs have together lost 50 million acre-feet of stored water.
'We're negotiating how to move forward in a way different place than we were negotiating 20 years ago,' said Mitchell.
Upper-basin states have managed to deliver the 75 million acre-feet across 10 years that the compact specifies, but what exactly is the obligation? That has long been a gray area.
At a forum two days before Mitchell spoke in Colorado, her counterpart in Arizona, Tom Buschatzke, reiterated at a conference in Tucson that they see the compact spelling out a clear obligation of upper-basin states to deliver 75 million acre-feet plus one-half of the water obligated to Mexico.
What if the water isn't there? That's the crux of this dispute as the upper and lower basin states negotiate in advance of a September deadline set by the Bureau of Reclamation.
In theory, if the situation were dire enough, Colorado could stop all its post-1922 diversions to allow the water to flow downstream. But is that what those gathered in Santa Fe in the shortening days of November 1922 had in mind?
Will lawsuits toss this into the court system for resolution? That process might take decades and, if it ended up at the Supreme Court, it might not yield a nuanced outcome. Mitchell didn't address that directly, although she did say everybody on the river wants to avoid litigation.
The situation described by Mitchell and other upper-basin proponents is perhaps analogous to a divorce settlement. The settlement may call for a 50-50 split of all earnings between the partners, but what if one becomes destitute and has no money to pool?
Upper-basin states do have reservoirs to help buffer them from short-term droughts. Altogether, however, they don't come close to matching the capacity of Powell.
Again, from the perspective of upper-basin states, California and Nevada have a sense of entitlement. Not that the upper basin states are angelic, said Mitchell. It's because they have no choice.
'I say we use three to four million acre-feet less than our apportionment. It varies. You know why? Because hydrology varies. And so we respond to hydrology. It's all based on snowpack and it's all gravity. Most of it is gravity dependent. We don't have those two big reservoirs above us like the lower basin does. We don't have those reservoirs to equal out the flows or allow us to overuse. We have to live with variable hydrology, and we take cuts every single year.'
Upper-basin states want a willingness in this settlement for agreement that focuses on the water supply, not the demand. 'Common sense would tell you, maybe Mother Nature should drive how we operate the system.' That, she said, is the bedrock principle of the proposal from the upper division.
With plentiful snowfall, greater releases from Powell might be possible, said Mitchell, and in times of extreme duress, water from Flaming Gore and perhaps the Blue Mesa and Navajo too. She said there might be room for greater conservation measures in the upper basin states.
But there must be 'real work happening down in the lower basin,' she said.
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