By Michael Cohen, Senior Fellow, Pacific Institute

This blog was originally posted on Inkstain.net

Key Takeaways

• The consensus-based effort to develop new rules to manage the Colorado River system hasn’t worked – it’s time for a new approach
• Federal leadership and the credible threat of managing reservoirs to protect the system is that new approach

Missing Deadlines

Way back at the end of the last century, at the annual Colorado River conference in Vegas, Marc Reisner repeated the Margaret Thatcher quote that consensus is the absence of leadership. On Veterans Day, the seven Colorado River basin states missed yet another deadline to reach consensus on a conceptual plan for managing the shrinking Colorado River after the current rules expire in 2026. Valentine’s Day marks the next holiday deadline, this time for a detailed plan, but multiple missed deadlines give no indication that the states will reach consensus then, either.

The basin states can’t agree on the substance of a new agreement. They also disagree on the process to get there. While Arizona has called for the federal government to break the negotiation logjam, Colorado opposes federal intervention and continues to call for consensus. Each basin-state negotiator acts to protect their state’s interests, often at the expense of the short and long-term resilience of the Colorado River system as a whole and the 35 million people who rely on it. The continued failure to negotiate a plan challenges the efforts of irrigators, cities, businesses, and river runners throughout the basin to plan for 2027 and beyond.

Meanwhile, river runoff and reservoir storage get lower and lower and snowpack lags well below average. This is not a zero-sum game, with winners and losers. The more appropriate metaphor here is a shrinking pie, with smaller and smaller pieces.

Leadership

The basin state negotiators have met for years behind closed doors, without success. It’s time for a new approach. Aggressive federal intervention and the credible threat of a federally-imposed Colorado River management plan would offer political cover – or a political imperative – for the negotiators. The credible threat of a federal plan would give the negotiators the space to compromise without having to do so unilaterally and then being accused of not protecting their state’s interests.

But federal leadership alone is not enough – it must be coupled with a plausible federal plan that compels the states to act and can meet the magnitude of the ongoing crisis. As the Department of the Interior announced in its 6/15/2023 press release, the purpose of and need for the post-2026 guidelines is “to develop future operating guidelines and strategies to protect the stability and sustainability of the Colorado River.” To date, the development of the post-2026 guidelines has prioritized routine operations of Glen Canyon and Hoover dams over the system as a whole, a focus inconsistent with the magnitude and urgency of the problem. Prioritizing routine dam operations and hydropower generation over water delivery and environmental protection elevates the tool over the task. Seeking to preserve routine operations of the dams while imposing draconian cuts on water users is not a path to resilience and precludes alternatives that would help stabilize the system.

The Plan

Instead, by early next year, the Secretary should announce that Interior will implement a federal plan incorporating the following elements:

1. Grant Tribal Nations the legal certainty and the ability to access, develop, or lease their water.
2. Make accessible (“recover”) the roughly 5.6 million acre-feet (MAF) of water stored in Lake Powell below the minimum power pool elevation and avoid the additional ~0.25 MAF of annual evaporative losses from Powell by storing such water in Lake Mead and using Powell as auxiliary storage.
3. As a condition precedent, the Lower Basin states agree not to place a “compact call” for the duration of the agreement.
4. Implement annual Lower Basin water use reductions for the following calendar year based on total system contents on August 1:
   • 75% – 60%: cuts to Lower Basin water uses increasing from 0 to 1.5 MAF<60% – 38%: static cut to Lower Basin water uses of 1.5 MAF<38% – 23%: increasing cuts to Lower Basin water uses of up to 3.0 MAF total
   • below 23% of total system contents – cut Lower Basin water uses to the minimum required to protect human health and safety and satisfy present perfected rights
5. If the Lower Basin states do not satisfy the condition precedent in #3 above, Reclamation limits Lower Basin deliveries to the minimum required to satisfy present perfected rights when total system contents are <75%.
6. Recover water stored in federal Upper Basin reservoirs unless the Upper Basin states reduce annual water use based on total system contents:
   • <34% – 23%: Assuming the first 0.25 MAF “reduction” would be contributed by the elimination of Powell’s evaporative losses and gains from Glen Canyon bank storage, reduce Upper Basin water uses up to 0.65 MAF
   • below 23% of total system contents – limit total Upper Basin water uses to 3.56 MAF (the minimum volume reported this century)
7. Expand the pool of parties eligible to create Intentionally Created Surplus (ICS) beyond existing Colorado River contractors, to include water agencies and other entities with agreements to use Colorado River water.
8. Eliminate the existing limits on the total quantity of Extraordinary Conservation ICS and DCP ICS that may be accumulated in ICS and DCP ICS accounts, while maintaining existing limits on delivery of such water.
9. Fully mitigate the on-stream and off-stream community and environmental impacts of the water use reductions identified above.
10. After a three-year phase-in period, condition Colorado River diversions on a clear “reasonable and beneficial use” standard predicated on existing best practices for water efficiency, including but not limited to the examples listed below (state(s) that already have such standards):

• Require removal of non-functional turf grass (California, Nevada)
• Incentivize landscape conversion and turf removal statewide (California, Colorado, Utah)
• Adopt stronger efficiency standards for plumbing and equipment (Colorado, California, and Nevada)
• Require urban utilities to report distribution system leakage, and to meet standards for reducing water losses (California)
• Require all new urban landscapes to be water-efficient (California)
• Require metering of landscape irrigation turnouts (Utah)
• Ensure that existing buildings are water-efficient when they are sold or leased (Los Angeles, San Diego)
• Require agricultural water deliveries to be metered and priced at least in part by volume (California)

Many of the elements listed above raise important questions about federal authorities, accounting and data challenges, the roles and obligations of state water officials to implement coordinated actions in-state, water access for disadvantaged communities, environmental compliance, and potential economic and social costs, among others. For each item listed, many details will need to be refined. Similarly, the plan’s duration will need to be determined. But as temperatures again climb into the high 40s in the Rockies near the Colorado River’s headwaters (in mid-December!), drying soils and reducing next year’s runoff, and the National Weather Service issues red flag fire warnings for Colorado’s Front Range, the need for bold action is clear.

The Dominy Bypass

Recovering water stored in Lake Powell will require the construction of new bypass tunnels around Glen Canyon Dam. Former Reclamation Commissioner Floyd Dominy sketched the design of such tunnels almost thirty years ago (see image). Such tunnels would enable the recovery of about 5.6 MAF of water stored below the minimum power pool elevation – more water than the Upper Basin states consume each year. Current operating rules and the scope of the current planning process effectively treat this massive volume of water as “dead storage” – a luxury the system can no longer afford. After Reclamation constructs the bypass tunnels, water recovery should be timed to maximize environmental and recreational benefits in the Grand Canyon.

Avoiding a Worse Outcome

Last year’s Colorado River conference featured a panel on the risks of litigation. Unfortunately, the continued failure to reach a deal, growing litigation funds, and the preference for repeating the same action that’s led to the continuing impasse suggest that some believe litigation could generate a better outcome (for them). Both sides have attorneys who assure their clients of victory. Yet, as Arizona learned in 1968, winning in the Supreme Court doesn’t ensure a better outcome and certainly won’t increase Colorado River flows. Placing faith in Congress could entangle this basin with challenges in other basins and other political considerations.

Running the River

Almost 160 years ago, John Wesley Powell – the reservoir’s namesake – demonstrated bold leadership, going where no (white) man had gone before. With leadership and a clear goal, he charted a route through the Colorado River’s iconic canyons. Now is the time for more bold leadership, a clear goal, and a plan to get there.