I learned stuff at last week’s Getches-Wilkinson Center Colorado River conference at the University of Colorado Law School.

I learned:

• The bodacious snowpack means the chance of Lake Mead dropping below elevation 1,000 is zero.
• We still need to cut 1.5 million acre feet of Colorado River water use, at least. We still have no plan to do that.
• We remain at risk of river flows past Lee’s Ferry dropping low enough by 2026 to trigger a legal argument about what the Upper Basin really owes the Lower Basin.
• We have what was called a “historic accord” to reduce Lower Basin use in the short run, which muchly revolves around paying people to not use water.
• The “historic accord” does not take any steps toward resolving longstanding tribal and environmental inequities.
• The problem of what economist Gordon Tullock called “the transitional gains trap” is a very real obstacle to moving forward on the Colorado River.

Whatever, let’s just pay ’em: the “transitional gains trap”

In a seminal 1975 paper, economist Gordon Tullock nailed the problem at the heart of the current Colorado River policy dilemmas:

Many government programs which appear to be designed to help some particular industry or group do not seem to be succeeding. The explanation offered here is that the program, when inaugurated, generated transitional gains for the individuals or companies in the industry, but that these have been fully capitalized, with the result that the people in the industry now are doing no better than normal. On the other hand, the termination of the particular scheme would, in general, lead to large losses for the entrenched interests.

Thus farmers in places like Palo Verde, Yuma, and Imperial umpty generations ago benefited from the significant subsidies from the rest of us (federal taxpayers) that enabled Lower Colorado River agriculture to flourish. The benefit of that subsidy has now been fully capitalized in the land and the structures of the communities.

As Tullock’s work so clearly notes, termination of this “scheme” (I love his word) would “lead to large losses for the entrenched interests.”

While there’s a lot of “property rights” framing around our 21st century arguments about this, it’s important to remember that the perfection and continued use of those water rights was enabled by massive collective action on the part of others in establishing the needed institutions, and funding and building infrastructure.

But whatever, right? That’s where we are now, and a fatalistic attitude of “let’s just pay ’em” seems to have settled over basin problem solving, at least in the short term.

Is there a “transitional losses trap” too?

I’m definitely out over the tips of my conceptual skis here, but one of the things that was made clear at the Boulder meeting was something I’ll glibly dub “the transitional losses trap”: the same decisions over the last century that locked in “transitional gains” for Lower Basin farmers also locked in “transitional losses” for Native American communities dispossessed of their land and water.

In a powerful panel last Thursday afternoon, a stage full of tribal leaders one at a time talked about that dispossession. The sheer weight of their words, and the range of their concerns, was breathtaking.

Some progress has been made on this issue, especially in Arizona. But there is no escaping the reality that all that water providing “transitional gains” to Lower Basin farmers is, acre foot for acre foot, a “transitional loss” for Native American communities. And now we’re paying those Lower Basin farmers to not use this very same water.

I get that some of the money we’re paying to reduce water use will go to Arizona and California tribes with settled water rights. But there are many tribes without settled water rights, or with rights that are settled but not yet put to use. They’re getting nothing out of any deal to pay water rights holders not to use their water. We need to remember this fact every time we pay a non-Indian farmer not to farm.

“A historic accord”

California’s lead negotiator on the recently announced agreement for short term Lower Basin water use reductions, J.B. Hamby, called it a “historic accord”. I have to agree, though we’ll have to wait through the next many months before we have clarity on what sort of history has been made.

It’s a Lower Basin agreement, among Arizona, California, and Nevada. One of the things that was abundantly clear at the Boulder meeting was that Upper Basin states are withholding judgment until the details are fleshed out.

But it’s already clear that those who negotiated the deal want our money – federal tax dollars – to solve the transitional gains trap, but not to solve any of the other problems worth talking about:

• the Colorado River Basin’s tattered environment
• unresolved Native American water rights and other needs

As I’ve pointed out previously, with other people’s money should come other people’s values.

The Lee’s Ferry conundrum

My buddy/collaborator/coauthor/mentor Eric Kuhn threw up a scary slide during his talk:

10-year deliveries at Lee Ferry could drop below 82.5 maf in 2026 or 2027 – almost certainly by 2030 (remember the 5 straight 9.0 releases from 2015-2019).

The crucially nerdy backstory is in Article III(c) and (d) of the Colorado River Compact, which seem to say the Upper Basin is required to send 82.5 million acre feet every ten years. As Hamby noted, one of the premises of “we need to cut 1.5maf in the Lower Basin” is that the Upper Basin continues to hit that target. Lawyers will argue forever about Article III interpretation, but I’d prefer not to hand over our management of the Colorado River to a judge’s ruling on who’s right.

Arizona v. California

No arguments broke out over California’s insistence on enforcing its priority rights and pushing most of the climate change risk onto Arizona. Yay!

But the deep entanglement between this question and the transitional gains trap stuff I mentioned before isn’t going away. California farmers have benefited from a “property right” essentially created in 1968 through the use of power politics, but that property right, as Tullock would say, is now priced into the value of their assets. And we’ve now set a “whatever, let’s just pay ’em” precedent (at an unprecedented scale), which does seem historic, but maybe not in a good way.

Elevation 1,000

There were a number of mentions of the Reclamation modeling that puts the risk of Lake Mead dropping to elevation 1,000 at zero.

This is great news. It shows how the bodacious snowpack bailed us all out.

But we should remember that “keeping Lake Mead above elevation 1,000” is a very low bar.