Guest Post: The Colorado River Compact hasn't aged well
By George Sibley
Editor’s Note: This morning, just as I was wrapping up a dispatch about coming back to the Homeland for today’s Land Desk, this George Sibley piece from Writers on the Range landed in my inbox. After reading it I thought: I’ve got to link to this because it’s such a nice, concise explainer of the “Law of the River.” And then I thought, Wait, I’ll just run the thing and save my dispatch for Wednesday. As usual, Sibley’s words are wise and insightful.
The Colorado River Compact turns 100 this year, but any celebration is damped down by the drying-up of the big reservoirs it enabled. The Bureau of Reclamation’s “first-ever” shortage declaration on the river acknowledges officially what we’ve known for years: the Compact and all the measures augmenting it, collectively known as The Law of the River, have not prevented the river’s over-development.
Nearly every pronouncement from the water establishment about the centennial of the Colorado River Compact calls it the “foundation,” “the cornerstone” of the Law of the River – as though before the Compact was adopted, the river was lawless.
It wasn’t. The real foundation of the Law of the River is the appropriation doctrine that all seven river basin states embraced from their start, an evolving body of common law foundational to all water development in the arid American West.
There is much to appreciate in the appropriation doctrine. It allows water to be claimed only by those who are actually putting it to beneficial use, thus precluding speculation. It protects existing downstream users from having their supply dried up by new upstream users. It has shown flexibility in incorporating new uses.
But the appropriation doctrine also evolved as a powerful engine for growth. Its “first in time, first in right” promise of perpetual secure use rewards those who get to the water first.
Judicial decisions then increased its potential for spurring growth. The abstract “right to use water” came to be a property right that could be bought and sold like an automobile, and water whose use was so purchased could then be moved anywhere – along with its seniority. This enabled cities and other large entities with concentrated economic power to buy and move water far from its origin, including water they were not yet ready to use, which clashed with the appropriation doctrine’s anti-speculation intent.
The Colorado River Compact commission came together 100 years ago to impose some control on that growth engine. The seven Basin states had finally acknowledged that they would have to honor each other’s prior appropriations, and they knew that could precipitate a chaotic seven-state horse race, with each state trying to appropriate as much water as possible as quickly as possible.
Their initial strategy was to prevent that by determining what each state could “equitably” use. That failed because the cumulative sum of what they each believed they deserved added up to considerably more than the river’s average flow.
Finally, they just divided the seven-state horserace into three-state and four-state horse races, details to be worked out later, and that became the essence of the Compact. It wasn’t quite what they had set out to do, but it satisfied the federal government enough to allow Reclamation’s eager beavers to begin developing the river’s mainstem.
The Compact and subsequent laws, agreements, contracts and other measures we know as The Law of the River impose public priorities on the Upper and Lower Basins, limit water for California, designate water for Mexico, add recreation as a beneficial use, incorporate environmental restrictions, limit California again, construct shell games with reservoirs, et cetera.
But a good question for evaluating the Compact and the Law of the River today is this: Would the situation on the Colorado River today have been any worse, or different, had there been no Colorado River Compact and its augmenting “Law of the River”?
Given that the desert empire watered by the Colorado River continues to grow virtually unchecked, with 50 to 80 percent more growth anticipated by mid-century, even as the water supply shrinks four to five percent for every degree of temperature increase, it may be time to stop trying to construct control systems around the growth engine, and look into the engine itself.
This is, of course, something no one wants to touch. But what can else be done when an appropriation doctrine has nothing left to appropriate and the growth it enables has become dollar-driven and spiraling out of control?
George Sibley is a contributor to Writers on the Range, writersontherange.org, an independent nonprofit dedicated to spurring lively discussion about Western issues. He writes extensively about the Colorado River.
Folks in the Four Corners Area woke to a familiar and unwelcome haze in the air this morning. It is, indeed, wildfire smoke (plus some dust), mostly from two new blazes sparked near Flagstaff this weekend: The Pipeline Fire and the Haywire Fire.
The Pipeline Fire was first spotted Sunday morning and by the end of the day it had grown to a whopping 4,500 acres and was forcing evacuations. The Haywire Fire was first reported at 5:30 a.m. Monday morning and had blown up to 1,600 acres within a few hours.
In New Mexico, the Hermits Peak/Calf Canyon Fire continues to burn but is now 70% contained and, at 320,495 acres, growth has slowed. It could lose its status as New Mexico’s largest fire on record, however, because the Black Fire (currently the second largest blaze on state record books) is now at 311,692 acres and continues to grow. It is 47% contained.
As if that weren’t enough, the Midnight Fire north of El Rito, New Mexico, was sparked June 9, and by Sunday had grown to almost 4,000 acres.
And further west, the Sheep Fire is burning near the town of Wrightwood in the San Gabriel Mountains of southern California. It’s at about 1,000 acres with 5% containment.
While temperatures are expected to cool down from record highs in coming days, gusty winds and low humidity are also in the forecast.