Water is for Fighting Over

by John Fleck

  “This water table has dropped from sixteen to forty feet,” district superintendent John P. Van Denbergh told members of the US Senate’s Committee on Irrigation and Reclamation, who had gathered in Phoenix to hear about Arizona’s water needs. Ten of the agency’s ninety wells had already been abandoned. Van Denbergh’s drainage engineers figured that the district needed to cut its pumping nearly in half to bring demand into balance with supply.19

  All across Arizona, water development was following the same path. The solution, the state’s leaders thought, lay in finding a way to move some of Arizona’s share of Colorado River water into central Arizona. Arizona senator Carl Hayden listened quietly as, first, representatives of the US Bureau of Reclamation and then a parade of witnesses including Van Denbergh made the case for a major federal effort to bring Colorado River water to arid central Arizona.

  The federal government seemed willing to oblige. “Since the time of Alexander the Great,” Bureau of Reclamation commissioner Harry Bashore told the committee in some of the most grandiose rhetoric to come out of a grandiose agency, “men have complained that they could find no more lands to conquer. We of the Reclamation Service [by then officially renamed the Bureau of Reclamation] know that there are still lands of the great Southwest where our two weapons—water and power—can conquer drought and despair. And as these enemies of mankind are routed, we can build a greater Southwest with the help of those who will seek employment here in our public works.”20

  But by now Southern California’s urban-suburban empire was booming, built with imported Colorado River water as its lifeblood. Its voracious appetite for the river’s water had exposed ambiguities in the language of the Colorado River Compact and the ensuing federal legislation authorizing construction of Hoover Dam.

  Whether the situation would have been clarified from the start if Arizona had ratified the compact and joined its neighbors in development of the Boulder Canyon Project Act we will never know. But by 1944, the lack of clarity seemed an insurmountable obstacle to Arizona’s water dreams. The Bureau of Reclamation and its partners in Arizona could plan all they wanted, and the bureau was happy to do Hayden’s bidding on this score. But Arizona’s refusal to ratify the Colorado River Compact, and its subsequent decision to “fight to the last ditch,” had left a cloud of uncertainty over the question of how to divide the Lower Basin’s share of water allocated under the Colorado River Compact. And without an answer to that question, it was difficult to proceed with any project. The only answer was litigation, it seemed to E. B. Debler, the bureau’s director of project planning. “A reliable division of waters may require a decision by the Supreme Court of the United States,” Debler told Hayden’s committee.21

  Climbing the Courthouse Steps

  The legal drama when one US state sues another is unique. States are sovereign entities, and the only venue with the jurisdiction to sort out their complaints is the United States Supreme Court. Whereas, in most legal disputes, the Supreme Court is the court of last resort, in interstate litigation, it is the first and only. Lawyers call it “the court of original jurisdiction.”

  Thus it was that J. H. “Hub” Moeur, chief counsel for the Arizona Interstate Stream Commission, walked out of Carl Hayden’s Washington, DC, office in the summer of 1952, armed with a legal brief. As the nephew of Governor B. B. Moeur, who two decades earlier had used the National Guard to declare a war of sorts on California, Hub Moeur had a family history of fighting over water. With Hayden at his side, he climbed the steps to the US Supreme Court building and delivered Arizona’s petition in what would become one of the court’s most consuming cases.22

  Moeur’s argument was simple. The Law of the River limited California to 4.4 million acre-feet per year of Colorado River water. That constraint notwithstanding, California and its water agencies had signed contracts with the Bureau of Reclamation for nearly 5.4 million acre-feet of water. More importantly, Moeur alleged, California and its water agencies “have caused the construction of works of a capacity to divert more than 8 million acre-feet annually.” Arizona feared that future. His state, Moeur wrote, needed 3.8 million acre-feet per year of water from the river “in order to sustain its existing economy.”23 Indeed, Arizona had already taken the steps to begin using that water, laying out the legal and physical route for the Central Arizona Project, with land staked out for what at the time was called the Granite Reef Aqueduct, a system of pumping plants and a canal to carry Colorado River water to the Phoenix valley. This was the latest version of a plan that had existed in various forms since the 1920s. But California, which had begun using the water Arizona could not, stood in the way.

  The brief by Moeur and his colleagues oozed with the sense of hurt that Arizona had felt over the previous three decades, cataloguing the injustices heaped upon it by the way its California neighbors and the federal government were developing the Colorado River’s water. To read Moeur’s words today is to understand Arizona’s anger in looking across the river and seeing those two big aqueducts carrying water off to California.

  As recently as 1946, California had only taken 3.4 million acre-feet, but in the years since then, California’s take had risen steadily. By 1951, the state had taken 4.5 million acre-feet, finally passing the magic “4.4” that Arizona thought should be California’s limit. As Moeur and Hayden filed their case in the summer of 1952, the number continued to rise. “At the rate diversions have been made during the calendar year to date,” Arizona’s lawyers wrote, California “will divert at least 5.43 million acre-feet.”

  This was Colorado River brinksmanship in full display. Knowing that Arizona was preparing to take the case to the Supreme Court, California began cranking up its diversions, especially to the vast desert farming area of the Imperial Valley in the state’s southeast corner, hoping to lock in a higher number.24

  For Arizonans, Moeur and his colleagues argued, much was at stake. They implicitly acknowledged the state’s central problem, as so clearly outlined in the testimony before the Senate Committee on Irrigation and Reclamation at that Phoenix hearing eight years earlier: Arizona was living beyond its water means.

  “Arizona,” they wrote, “is an arid state. Irrigation is essential to its successful agriculture, and much water is needed for domestic, municipal, and industrial purposes. Precipitation is insufficient to satisfy the need for water.”

  The Decision

  The headline on the front page of the June 4, 1963, Arizona Republic crowed: “Arizona Wins Water Suit; $1 Billion Project Next.” The subhead read like a victory dance: “California Loses by 5–3.” After a decade before the Supreme Court, Arizona appeared to have emerged victorious.

  The newspaper framed the Supreme Court’s ruling in the case of Arizona v. California as “a personal triumph for Sen. Carl Hayden.” Indulging in some decidedly partisan boosterism, the Republic wrote, “The court adopted the apportionment laid down by Hayden with the passage of the 1928 Boulder Canyon Project Act.”

  In fact, Hayden had tried and failed to curtail California’s allotment under the 1928 law, filibustered the bill, and then voted against it. But while wrong on the specifics, Arizona’s public narrative was right in spirit. The Supreme Court’s decision that day looked like an enormous victory for both the state and Hayden.

  On the case’s central points, the court had given Hayden and Arizona what they had been asking for the whole time. Yes, Arizona was entitled to the 2.8 million acre-feet of water per year of water from the main stem of the Colorado River that it wanted, plus the right to use tributary water from the Gila River without having that count against Arizona’s share. California would be held to 4.4 million acre-feet. California could use surplus if it was available, but not if Arizona needed the water.

  “Arizona gave a sigh of relief and joy yesterday that has been pent up for forty years in the battle with California over the Colorado River,” the Republic said. Tucked in the bottom-right corner of the Republic’s front page was the only other m
ention of Arizona’s archrival: “California’s Opposition Will Move to Congress.” This fight was not over yet.

  But as a matter of water arithmetic, the ruling compounded the mistakes of 1922, amplifying the problem that the Law of the River had allocated more water on paper than the real river could provide.

  The CAP

  Carl Hayden wasted little time, but it still took years for Arizona to get its Central Arizona Project. The day after the ruling was handed down, he and the other four members of the state’s congressional delegation introduced legislation in both the House and the Senate authorizing construction of the Central Arizona Project “for the purposes of furnishing supplemental irrigation water and municipal water supplies to the water-deficient areas of Arizona and western New Mexico, through the direct diversion or exchange of water.”25

  Hayden had been in Congress for more than half a century by that time, with water projects for his rapidly growing desert state always at the center of his legislative agenda. He had “always figured” that he’d be around to see the Central Arizona Project built; he just had not expected it to take so long. “That’s the main thing I have left to do,” Hayden said at the time.26

  As had been the case in 1952 when Arizona filed suit against California, the notion that “water-deficient” was the product of both supply and demand seems still not to have occurred to the Arizonans, or at least if it did they kept their mouths shut about it. In the years since the Bureau of Reclamation had begun looking at the feasibility of a Central Arizona Project in the late 1940s, the state’s population had doubled, to 1.4 million people. The land under irrigation had risen to more than a million acres, and the bureau found that groundwater levels in the Phoenix and Tucson areas were dropping at ten to twenty feet per year in some places.27 Already, according to the Bureau, Arizonans were over-pumping their aquifers by 2.2 million acre-feet per year, far more than even a completed Central Arizona Project could deliver. This was no secret at the time. “Arizona cannot make up this deficit,” explained a Congressional Quarterly summary of the situation, published in Arizona newspapers in June 1963.28 The notion of using less seems never to have crossed Arizona’s mind.

  The general plans for the Central Arizona Project (CAP) had been in hand for decades. Even after the Supreme Court’s ruling clarified water entitlements, it nevertheless took five years and a huge concession by Arizona to finally win congressional approval for the Central Arizona Project.

  California used its congressional muscle to claw back a piece of what it had lost in the courts, achieving a political deal with ramifications that still echo today. To get the CAP agreement through Congress, Arizona agreed that its Central Arizona Project supplies would be behind California in the priority line if there was ever a shortfall on the Lower Colorado. In essence, Arizona was once again flummoxed by California’s rapid development and the old doctrine of prior appropriation. California would be limited to 4.4 million acre-feet, but would stay first in line for the Colorado River’s water if the river got so low that there was not enough for that plus Arizona’s newly allocated share.29

  Given the reality of the math, it seems odd that Arizona would have accepted such a deal. During the hard-fought debates before the US Supreme Court, it had become clear that the only way the three Lower Basin states would get their full 7.5 million acre-feet per year was if there was surplus in the system—unused Upper Basin water flowing south. Wouldn’t that mean that, once the Upper Basin finally developed its own water use, Arizona would then see its Central Arizona Project canal run dry? The answer to that question lies in what Arizonans believe was a promise that accompanied the compromise: that the shortage would be solved by “augmentation” of the Colorado River. It was a time of dreamy engineering.

  In a December 1967 speech in California, a few months before the final legislation passed, Arizona representative Morris Udall laid out what he saw as the terms of the deal: an aqueduct to Phoenix and Tucson, an agreement that California would get priority for its 4.4 million acre-feet, and a commitment to augmentation: “through desalting, weather modification, and Lower Basin salvage and conservation, especially through prevention of waste by California irrigation districts.”30

  With that deal, the Central Arizona Project was legislatively launched in 1968. It would take another twenty-five years for water to actually reach its southeastern terminus near Tucson, and when it did, the project’s completion fundamentally changed the arithmetic of Colorado River water.

  Cotton Dethroned

  When we think today about Arizona’s water problems, we imagine large lawns in sprawling suburbs in and around Phoenix, golf courses, and “misters”—those devices that fritter away water into the hot desert air to cool the customers eating at outdoor restaurants in the Valley of the Sun.

  But to really understand Arizona’s water problems, and what their solutions can look like, you have to start with cotton. In the 1950s, as Arizona was battling in the courts over who was entitled to how much Colorado River water, it was agriculture, not growing cities, that drove Arizona’s persistent desire for water. And it was cotton, a thirsty crop that thrived in the state’s central valleys if farmers could find enough water, that drove Arizona agriculture.

  Arizona’s cotton explosion in the 1950s was propelled by two things. The first was cheap groundwater that allowed farmers to expand their acreage. Farmers could essentially pump as much as they wanted or could afford. The second was price. From 1940 to 1950, the price that Arizona farmers received for a pound of cotton more than tripled, and the amount of acreage planted in cotton and the amount of water used to irrigate it exploded. In 1940, there were 221,000 acres of cotton in Arizona; by 1953, that had jumped to 695,000 acres. Farmers were turning desert land and cheap pumped groundwater into cash, and quickly.

  As with much of Colorado River Basin agriculture, alfalfa had always been a big part of Arizona’s agricultural portfolio. But over the course of the 1950s, cotton came to dominate the state’s agricultural economy. In 1953, the peak year for cotton acreage in Arizona, three times as much land was devoted to cotton as was planted in alfalfa. But the revenue gap was even bigger than the acreage gap—$178 million in cotton sales that year, more than ten times the revenue from Arizona alfalfa sales.31

  In 1959, when county extension agent George W. Campbell Jr. surveyed farming in Pinal County, the stretch of desert valley between Phoenix and Tucson that was one of the most important agricultural regions in the state, alfalfa was barely an afterthought. Cotton was king. “During the peak of the cotton harvest,” Campbell wrote, “all who wish to be are employed.”32

  But Arizona’s groundwater regulation was a tangled mess, which placed few restrictions on pumping, and, as a result, aquifers were rapidly dropping across the state. To the federal government, this was a recipe for disaster, because imported Central Arizona Project water was likely to be more expensive than groundwater. If anything, Colorado River water would be added to central Arizona’s water portfolio, while excessive groundwater pumping to feed cotton and other agriculture would continue. Colorado River water would not untangle the mess.

  The 1968 law authorizing the Central Arizona Project included language intended to prevent the use of the imported water to simply expand agricultural acreage while the state’s farmers continued to over-pump. The law mandated that, for every contract for delivery of CAP water, “there be in effect measures, adequate in the judgment of the Secretary, to control expansion of irrigation from aquifers affected by irrigation in the contract service area.”33

  On a visit to Phoenix in 1979, Interior secretary Cecil Andrus made clear to Arizona’s political leadership that if they didn’t come up with a binding, enforceable groundwater-management regime, there would be no CAP. Andrus’s comments were a big deal. The federal government had a long history in the West of deferring to state preferences when it came to water-rights management. The Bureau of Reclamation, for example, had long either formally or informally looked
the other way when it came to enforcing the early legal limitation restricting federal irrigation water to farms 160 acres in size or smaller. So while the Colorado River Basin Project Act of 1968 had included a technical requirement for groundwater management, Andrus’s sharp and public comments reflected a shift on the part of the federal government. Arizona was going to have to get its water-management house in order if it was going to get the help of US taxpayers to build the Colorado River supply system it so desperately wanted.

  Within Arizona, the political dynamics were complex. In much of the development of the West’s water, agricultural interests had dominated, invoking their prior-appropriation water rights and economic power to lock up water supplies. But Arizona was coming late to the scene. Never before had a water project this large been built at a moment in history when municipal interests in a state were this powerful. Agriculture was no longer the economic powerhouse in Arizona that it had been in other regions when they were developing their water projects. By the late 1970s, the cluster of cities that made up the greater Phoenix metro area, not Arizona agriculture, had come to a dominant position in Arizona politics. And the mining industry, important to Arizona’s economy, also played a critical role. Mining needed water, and miners and agriculture had clashed in the past over groundwater pumping rules, which had already created an alliance between mining and municipal water agencies. In 1979 and ’80, as Arizona’s political establishment wrestled with how to respond to Andrus’s pressure, the mining-municipal alliance proved critical.

  It was clear to everyone that a reduction in agriculture was the only way to accomplish the groundwater regulation the state needed. Cotton farming had ebbed in the years since its 1950s boom, but by the late 1970s it was back in a big way, leading to huge groundwater overdrafts. In the negotiations over how to respond to the new federal requirement, farmers pushed hard for a buyout: pay farmers to reduce their irrigated acreage. Mining and municipal interests pushed back.