Water is for Fighting Over

by John Fleck

  The agricultural districts of Yuma are yet another example of the problem. As we have seen, the farmers there, in shifting to lucrative winter vegetable production, have reduced their water use by 30 percent since the 1970s. But their reduction in water use did nothing to reduce the overall pressure on the over-allocated Colorado River water system. Instead, it was simply shifted to other users in Arizona, with the resulting pressure continuing to drop Lake Mead.

  Lettuce fields outside Yuma, Arizona (© John Fleck).

  Given our current rules, all these communities are behaving as rational actors, making choices in their own best interests. The latest long-range planning data being developed by the Albuquerque Bernalillo County Water Utility Authority clearly shows that my community could absorb a substantial reduction in its allocation of Colorado River water. But until the rules create a mandate or incentive to conserve, it would be crazy for Albuquerque to voluntarily relinquish the water without some assurance of the sort sought by Senator Flake.

  Defining the “Crisis”

  So what might this collective action look like? In the end, we need an honest reckoning with the basic problem: there is not enough water for everyone to do everything they want with it, or to use every drop to which they feel legally entitled.

  It is frequently said that the Colorado River Basin is in “crisis,” but the detailed nature of that “crisis” is rarely spelled out. It is often framed in terms of the relationship between the river’s supply and growing demand, and illustrated with pictures of the white “bathtub ring” circling the increasingly empty Lake Mead. But when demand rises above supply, and reserves in the basin’s great reservoirs run out, the basin’s water users cannot consume negative water. Someone will have to use less, or stop using altogether. Who is that? In defining the problem, then, we sooner or later have to get specific. When shortages occur, who takes the hit?

  This is the point at which the river’s operating rules, and most importantly, the ambiguity about how these rules will be implemented in times of scarcity, become critical. It is also the place at which we can dimly make out the shape of long-term solutions. Without those solutions, the current rules and the physical reality of the system suggest five big risks.

  The most immediate risk is Las Vegas. As we have seen, Las Vegas has demonstrated the ability to live within its means, dropping its usage over the first years of the twenty-first century so that it now consumes substantially less than its 300,000 acre-feet per year allocation. But it continues to face a physical risk. As Lake Mead drops, it becomes harder and harder for Las Vegas to get water from its intake pipes, with a clear risk that the reservoir’s level might drop so low that Las Vegas could have a legal entitlement to water that it has no physical way to get to the city.

  Las Vegas is taking steps to deal with the problem, building a new intake that is deeper in the reservoir, and a new pumping plant to handle the deeper water. The first phase, the deeper pipe to take the water, opened in 2015. The completion of the pumping plant, by 2020, will eliminate the largest risk in the entire basin, which is a city of 2 million people going dry because its intake pipes are above the water line, sucking air. With a new intake deep within Lake Mead, Las Vegas’s water supply will ironically be transformed from one of the most vulnerable to one of the most secure in the Lower Basin.

  The second risk is to Arizona. As Lake Mead continues to drop, and supplies become increasingly constrained, the operating rules require that the major burden falls on Arizona. In return for the Central Arizona Project’s construction, California extracted a legal requirement (enshrined in federal law) that all of Central Arizona’s Colorado River allocation, all 1.5 million acre-feet per year that flow through the big canal to Phoenix and Tucson must be cut off completely before California loses a single drop. Arizona has long viewed subsidized agriculture as a buffer, and it has been banking surplus groundwater as a hedge against such an inevitability. This, too, will be tested.

  The third risk is to the states of the Upper Colorado River Basin. Most legal scholars agree that if (when?) the total flow in the river drops because of climate change, the rules enshrined in the Colorado River Compact require the Upper Basin to continue sending 7.5 million acre-feet downstream past Lee’s Ferry each year. If climate change push comes to shove and there is not enough water to meet that requirement and also supply all the current water use needs in Wyoming, Colorado, Utah, and New Mexico, those Upper Basin water uses must be cut to meet the Lee’s Ferry delivery requirement.7

  The fourth risk is the long-festering problem of Native American communities’ rights to water. Unresolved, this uncertainty leaves these communities without the water they need to prosper, and it also leaves a cloud of uncertainty over other water users.

  The fifth risk always remains the delta and, more broadly, the environment. The operating rules have long left environmental flows entirely out of the picture, and it is only slowly and at great pain and expense that water has been carved out to bring the environment back.8

  In a remarkable talk in the summer of 2013, Colorado water scholar Brad Udall argued that when we debate the legal fine points about who is entitled under the law to how much water, we’re debating the wrong things. Udall’s father, Arizona congressman Morris “Mo” Udall, helped build the modern Colorado River plumbing system, and the younger Udall has now become one of the leading public intellectuals in working through the set of problems that we must now cope with in the twenty-first century. Speaking at the University of Colorado School of Law to an audience of lawyers, law students, and legal scholars, Udall argued that all these arcane, technical legal arguments over the future of the Law of the River are beside the point.

  Udall distinguished between the “reality of the public” and the “reality of the water community,” describing a world in which regular folks have no clue about things water professionals obsess over—things like Article III(d) and the Colorado River Basin Storage Project Act and the “doctrine of prior appropriation.” Udall’s “public” is a community of people who just want to turn on the tap and have the water come out. But they have some basic notions of fairness and good sense, imagining that the policies underlying our attempt to supply that water will consider questions of equity, sound economics, and the environment. Water-management actions that violate those notions will, to quote Udall, “violate the public’s sense of ‘rightness.’”

  This means several things in terms of practical Colorado River Basin management:

  It means that, whatever the Law of the River says, as a practical matter we’re not going to let the level of Lake Mead drop below 1,000 feet above sea level, the surface elevation at which Las Vegas can no longer get water from the reservoir. Udall quoted Mike King, head of the Colorado Department of Natural Resources: “I don’t care what you think about the Law of the River, we are not going to dry up a city of 2 million people.”

  It means that the public will not tolerate a situation in which Phoenix loses all its Central Arizona Project water while California continues to take a full allotment.

  And it means, Udall argued, that the states of the Upper Basin will not be left to take the full brunt of the river’s shrinkage because of climate change while the Lower Basin gets its full Compact share.9

  The events of the last two decades—the 2001 negotiations to wean California of its dependence on surplus water, the 2007 deal to share shortages, the US-Mexico agreement embodied in Minute 319—provide an indication of what the path forward might look like. They do not suggest that the Law of the River’s imperfections and ambiguities are irrelevant. Instead, they suggest that “the network” has come to the shared conclusion that arguing over legal interpretation is the wrong path. Those ambiguities and imperfections are flaws to be corrected through collective action and agreement rather than winner-take-all legal battles.

  What we need is a negotiated solution that avoids narrow interpretations of the Law of the River, that reduces allocations broadly, enable
s trading among water users, and capitalizes on the reality that, as we have seen, communities in the Colorado River Basin have a remarkable ability to preserve their ways of life when supplies run short.

  Connor’s Response

  Connor’s response to Flake’s questioning shows what solutions to the Colorado River Basin’s problems might look like. As the two senior officials sparred in public, speaking in the coded, theatrical language of a congressional hearing, behind the scenes negotiators for the states and water agencies had been scrambling to come up with a deal that would slow the decline in Lake Mead and share the pain of shortage. A series of small, interim deals had been approved under which water users would be compensated to forgo water that would remain in Lake Mead, unallocated, as what the water managers had come to call “system water”—water that was in a sense no one’s water, but also everyone’s. But those “system water” agreements had generated only small amounts of water, and the negotiators seemed powerless to halt the reservoir’s continuing decline. During the fall hearing of 2015, Lake Mead was at its lowest October level since 1936, when the big reservoir was first being filled.

  Connor’s response was that the federal government would not step in unilaterally. As in the 2001 agreement that finally curtailed California’s overuse of Colorado River water, and again in 2007 when the states came together to approve their first shortage-sharing agreement, it was up to the water users to find a solution. The federal government would play an important role in both the negotiation and the implementation, but it would not impose an answer. “The states’ agreement,” Connor said, “has been the model for us to operate.”

  Eighteen months earlier, Connor and I were riding down a levee road along the banks of the last stretch of the Colorado River on the US-Mexico border, watching water from the Minute 319 pulse flow fill a stretch of the riverbed that was normally dry. It was the day after the triumphant international pulse flow celebration staged at Morelos Dam, and I had tagged along with a delegation of senior water managers and federal scientists who had ditched diplomatic formalities and press handlers to get a firsthand look at the water.

  Connor and Assistant Secretary of the Interior Anne Castle acted like eager tourists, pulling out their cell phones to take pictures at every stop. And as we drove, they reflected on the process that had gotten everyone to this remarkable moment when the representatives of nine states and two nations, plus a larger coalition of water agencies, environmentalists, and community groups, had come together to solve what had seemed an insoluble water-sharing problem—putting water back in the Colorado River Delta.

  Minute 319 was the logical extension, Connor explained to me, of a process in which water users stepped away from Marc Reisner’s old refrain of the Colorado as the world’s “most litigated” river to the approach of the past two decades—of negotiated agreements to deal with the shortcomings of the current water-management rules. “The Law of the River,” Connor told me, “is pretty all-encompassing, but it still has room for interpretation.”

  It was a jubilant day, but as we turned from the river to ferry Connor back to the Yuma airport for his flight home, the talk turned to the serious next steps. At that time, the Bureau of Reclamation’s internal modeling efforts showed the potential for drought and climate-change trouble ahead. As Lake Mead drops, rules kick in that require water users in Nevada, Arizona, and Mexico to remove less water from the system each year. But those reductions are modest, and Connor told me that the Bureau’s worst-case modeling showed that even with the agreed-upon reductions, Lake Mead could quickly drop past a point of no return, to levels at which the current rules would be no help in determining who was entitled to how much.

  The solution is, in a sense, straightforward. Everyone in the Colorado River Basin has to use less water. It’s possible to apply a simple arithmetic wave of the arm and say, for example, that we could bring the system into balance if everyone used 20 percent less water than they are consuming today. We know from experience, from Yuma to Las Vegas to Albuquerque, that such reductions are possible, that water-using communities are capable of surviving and even thriving with substantially less water than they use today. But no one will voluntarily take such a step without changes in the rules governing basin water use as a whole to ensure that everyone else shares the reductions as well—that any pain is truly shared. We need new rules. Absent that, we simply end up with a tragedy of the commons.

  Where do those rules come from?

  The answer, Connor said, was not some grand solution imposed from on high by the US secretary of interior and other agencies of the federal government, but a process of continued negotiation among the federal government and the states to come up with better rules to cope with shortfalls and decide who must use less water. It is the kind of process that Ostrom so insightfully observed in the formation of West Basin water-management tools, and that we have seen time and again as communities come together to solve common-pool resource-management problems large and small. Connor’s answer as we drove back through the farmland of Yuma County, past lettuce fields nearing the end of their harvest season, was, in concept, identical to what he told Flake in front of reporters and television cameras at the autumn 2015 Senate hearing: “It starts with the seven basin states and their ongoing dialogue.”10

  Beyond the Myths

  The biggest barrier to that dialogue is believing our own myths. We have seen, time after time, the myths of conflict, water flowing toward money, and—most importantly—crisis, all dispelled by communities who were able to compromise and conserve. Yet the mythology has real staying power.

  In January 1960, the Los Angeles Times featured a frightening front page headline: “Southland’s Water Safety Margin Placed at 10 Years.” Groundwater basins would go dry, and the region’s rapidly rising population would soon outstrip its supplies of imported water, the newspaper breathlessly warned.11 It was neither the first nor the last headline in a US newspaper to play on the fear that the West is running out of water. Recent years, especially during the drought in the twenty-first century, saw a rash of similar articles: “Scarce Water and the Death of California Farms,” “The Dust Bowl Returns,” “A ‘Megadrought’ Will Grip US in the Coming Decades,” “Colorado River Water Supply to Fall Short of Demand.”

  These dire stories fuel fears that the only way to save yourself is to fight your neighbors for every last drop. But if you are able to sidestep the crisis narrative and recognize that your community can thrive with less water, then the fight with your neighbors seems less necessary and the risks of water wars and a crash diminish. It’s time to stop fighting over water and turn our attention to another adage Mark Twain likely never said: “The secret of getting ahead is getting started.” When we start talking, we can learn to share our beloved but dwindling Colorado River in a changing world.

  Notes

  Note: The following notes are presented in an abbreviated fashion. Full citations for each publicly available source can be found in the bibliography.

  Chapter 1 Notes

  1.Sykes, The Colorado Delta, 161.

  2.MacDougal, “The Delta of the Rio Colorado,” 10.

  3.Grant, “Tapping the Past for California’s Water Future.”

  4.See, for example: Deverell and Sitton, “Forget It, Jake,” 3; Erie, Beyond Chinatown, 4.

  5.Powell, Dead Pool, 240.

  6.Sabo et al., “Reclaiming Freshwater Sustainability in the Cadillac Desert,” 21263–4.

  7.Reisner, Cadillac Desert, 501.

  8.US Bureau of Reclamation, “Colorado River Basin Water Supply and Demand Study, SR-26,” C-9; US Bureau of Economic Analysis Regional Economic Accounts, “Annual Gross Domestic Product (GDP) By State”; US Department of Agriculture, “2012 Census of Agriculture,” 245–52.

  9.Fleck, “State’s Future Banks on Colorado River.”

  Chapter 2 Notes

  1.US Department of Agriculture, “2012 Census of Agriculture, New Mexico State and County Data,” 226–2
8.

  2.Fleck, “Farming Against the Odds on the Rio Grande.”

  3.US Geological Survey, “Largest Rivers in the United States,” 2.

  4.Kuhn, “The Colorado River: The Story of a Quest for Certainty on a Diminishing River,” 22.

  5.Minutes of the Twelfth Meeting of the Colorado River Commission, November 12, 1922, 73.

  6.Woodhouse, Gray, and Meko, “Updated Streamflow Reconstructions for the Upper Colorado River Basin,” 4.

  7.Hundley, Water and the West, 274.

  8.US Bureau of Reclamation, “Colorado River Basin Water Supply and Demand Study, SR-26,” SR-4; US Bureau of Reclamation, “Colorado River Basin Natural Flow and Salt Data.”

  9.Nash and Gleick, Colorado River Basin and Climatic Change, ix; US Bureau of Reclamation Colorado River Basin Supply and Use Data, 2015 (dataset provided by the US Bureau of Reclamation, September 22, 2015); Vano et al., “Understanding Uncertainties in Future Colorado River Streamflow,” 59; US Bureau of Reclamation, “Lower Colorado River Operations, Lake Mead at Hoover Dam.”

  10.Cohen, Christian-Smith, and Berggren, Water to Supply the Land, 7.

  11.Hays, Conservation and the Gospel of Efficiency, 11.

  12.US Bureau of Reclamation, “Colorado River Basin Water Supply and Demand Study, SR-26,” C-9.

  13.US Bureau of Reclamation, “Moving Forward: Phase 1 Report,” 4–7.

  14.US Bureau of Reclamation, “Moving Forward: Phase 1 Report,” 4–6.

  15.Russelle, “After an 8,000-year Journey, the ‘Queen of Forages’ Stands Poised to Enjoy Renewed Popularity,” 252.