The ‘law of the river’ is the battleground of the Colorado River crisis

It’s a crisis that has lasted nearly 100 years: Seven states – all dependent on a single mighty river as a source of life-saving water – failed to reach an agreement this week on how best to reduce their use of rapidly shrinking Colorado River supplies.

At the heart of the feud is the “Law of the River,” a set of agreements, court rulings, contracts, and executive orders that govern use of the river and date back to 1922, when the Colorado River Compact split for the first time the river flows between the states.

But as California argues most strongly for strict adherence to this water allocation system, other states say it doesn’t make sense when the river’s largest reservoir, Lake Mead, continues to decline. towards the “dead basin” level, which would effectively cut off the southwest. of its aquatic lifeline. The law of the river, they say, stands in the way of a solution.

“We may wonder if the interpretations of the law of the river correspond to physical reality,” said Tom Buschatzke, director of the Arizona Department of Water Resources. “But if you find yourself in a courtroom discussing these points and something isn’t done, the Colorado River system is going to collapse.”

As drought, climate change and chronic overuse undermine the Colorado River, the federal government has called on states to collectively reduce their use by 2 to 4 million acre-feet.

California’s water districts have legal rights to most of the river, which not only provides drinking water to millions of Southern Californians, but also helps feed the nation through agricultural irrigation. The other states – Arizona, Colorado, Nevada, New Mexico, Utah and Wyoming – say it is unreasonable to leave large population centers that are lower in the pecking order such as Phoenix and Tucson get thirsty.

California’s legal position is based on several factors, said James Salzman, professor of environmental law at UCLA and UC Santa Barbara. First, the authors of the original Colorado Compact made the “fatal decision” to apportion water for the lower basin states of California, Arizona, and Nevada in absolute amounts rather than percentages.

This means the upper basin states are obligated to deliver 7.5 million acre-feet per year to the lower states no matter what, which “turned out to be a tragically bad design,” Salzman said. .

Additionally, the sprawling Imperial Irrigation District in California established superior water rights prior to the Colorado River Compact, meaning it holds high priority rights to supply most of the city’s water. the river to farmland in the Imperial Valley.

Arizona, on the other hand, agreed to junior rights to the river in 1968 in exchange for building the Central Arizona Project, the system that carries water from the river across the state.

In other words, according to the law of the river, if there isn’t enough water for everyone, states like Arizona are supposed to be cut off before California.

This led to two very different proposals from states this week.

California’s proposal includes a previous commitment by Southern California water agencies to reduce water use by 400,000 acre-feet per year through 2026, a reduction of about 9%. The proposal also calls for further reductions in Arizona, California and Nevada at multiple levels if Lake Mead continues to decline.

The proposal submitted by the six states outlines cuts for Arizona, California and Nevada beyond what those states have already agreed to. This translates into particularly large reductions for California.

Rhett Larson, a water law professor at Arizona State University, said California would be the “clear winner” if the river law is interpreted as it is currently written.

“I’m an Arizonan, and so I’m pretty biased towards Arizona,” he said. “But I’m also a lawyer, which means I’m quite biased in favor of the law. And the law says California’s proposal is fundamentally right — legally. It may not be right practically or morally, but it is right legally.

Among the body of the law is the 2019 Drought Contingency Plan, under which California, Arizona and Nevada agreed to a schedule of reductions at Lake Mead through 2026.

Mexico has pledged in a separate agreement to participate in the reductions, and some indigenous tribes have also agreed to conserve water in an effort to raise reservoir levels.

But in recent years, these reductions have not been sufficient and reservoir levels have continued to decline.

The 2019 agreement provides for reductions up to a certain point. If the level of Lake Mead reaches an elevation of 1,025 feet — 22 feet below its current level — and continues to drop, existing rules about what should happen fall under the law of the river, Larson said.

But he also noted that the Central Arizona project provides about 40% of the water supply for cities in central Arizona. He said it would be “devastating” for Arizona’s draft to take most of the cuts before California is forced to take substantial cuts.

The six-state proposal, while insufficient on its own, is “a better start and solves more problems, and avoids more problems, than California’s proposal,” he said.

For its part, California’s Colorado River Board said its plan “makes a constructive effort to uphold the law of the river while making substantial efforts to protect the Colorado River system with voluntary reductions well beyond obligations.” California law”.

“The 40 million people, nearly 6,000,000 acres of agriculture, and 30 Indian tribes that rely on the Colorado River demand that we succeed in this effort,” the council wrote in its proposal.

Adel Hagekhalil, chief executive of the Metropolitan Water District of Southern California, said all states agree cuts are needed, but “the priority system is part of the law.”

He noted that California has worked with other states to adapt and adapt to changing conditions, including putting water back into Lake Mead. Southern California has also had extensive water conservation efforts, instituted severe water use restrictions, and invested in alternative supplies.

“But we can’t walk around a history of agreements that have supported the livelihoods of people living in California, business and the economy, and that have been recognized by the courts and in history, and say, ‘ Let’s forget that,'” Hagekhalil said. .

Among these court cases was Arizona v. California, a 1963 Supreme Court case which ruled that of the first 7.5 million acre-feet of river waters, 4.4 million acre-feet go to California, 2.8 million in Arizona and 300,000 in Nevada.

“It’s a long and complicated question, but it’s really about water rights,” Hagekhalil said, adding that “we all understand that we have to reduce.”

“Let’s assess the impact of these cuts on the environment, and take the time to negotiate who will take the cuts,” he said.

Still, some officials, including Buschatzke, criticized California’s proposal as “extremely river law-centric.”

“I understand the potential legal arguments. But the six-state proposal acknowledges the physical reality of what is actually happening. … And California is not,” he said.

Salzman, of UCLA, said the likely outcome of the standoff is federal intervention followed by litigation.

He couldn’t think of a similar case that could serve as a precedent for the current standoff, but feared the states would run out of time as the river dried up and descended.

“They’re basically coming out of the law of the river, because the law of the river doesn’t clearly lay out how to reduce 2 million acre-feet,” Salzman said. “On the other hand, the law of the river is the reason we’re in this mess in the first place.”

Los Angeles Times

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