By Eric Kuhn

The Bureau of Reclamation released its March 24-Month study last Friday and just like last month, the forecast is for big trouble in the Colorado River Basin. Under the “Most Probable” scenario, the ten-year cumulative flow at Lee Ferry will drop below 82.5 million acre-feet (the “tripwire”) by the end of Water Year 2027.  If this happens, the odds are high that the Lower Division states will trigger what they referred to in their February 13, 2025, letter to Secretary Burgum as a “compact call.”  The nuance, however, is that the Colorado River Compact has no specific provision for a compact call. Under the compact, a call is just another word for interstate litigation.

Although the letter is now over a month old, it just recently received attention from two of the region’s most respected water reporters, Ian James of the Los Angeles Times, and Tony Davis of the Tucson Daily Star.  In his piece, (link: Three states urge Trump administration to fix Colorado River dam – Los Angeles Times: ) James pointed out that in their letter, the Lower Division states used the term “compact call” 23 times.  The term “river call” is commonly used in prior appropriation states that actively administer water rights. For example, the Shoshone Hydroelectric Power Plant, located on the Colorado River a few miles upriver from Glenwood Springs, has a senior water right for 1250 cfs with a priority date of 1902.  When the flow at the plant’s diversion dam drops below 1250 cfs, its owner places a “call” on the river. Under Colorado law the Division Engineer, an employee of the Colorado State Engineer, then shuts off sufficient upstream junior uses to bring the flow back to 1250 cfs.  A “Shoshone call” is almost an annual occurrence.

The Colorado River Compact places two specific flow obligations on the Upper Division states at Lee Ferry. Article III (d) requires these states to not cause the ten-year cumulative flow to be depleted below seventy-five million acre-feet.  Additionally, under Article III (c), if there is not sufficient surplus water available, then each basin is responsible for one-half of the deficiency (the difference the annual treaty delivery and the available surplus water). Assuming there is no surplus water and the 1944 Treaty delivery to Mexico is 1.5 maf per year, the Upper Division states would have to deliver to Lee Ferry, an additional 750,000 af per year.

Thus, using the Shoshone analogy, the Lower Division states claim they have a 1922 Compact water right for up to 82.5 maf every ten years. Note, we say “up to” because in the last few years, pursuant to Minute 323, annual deliveries to Mexico have been slightly less than 1.5 maf.  For many reasons, the Upper Division states do not agree that their 1922 Compact obligation is 82.5 maf every ten years, see: “On the Colorado River, there are no Simple Disputes,” (link: On the Colorado River, there are no Simple Disputes – jfleck at inkstain: ).

If (or more likely when) the ten-year flow at Lee Ferry were to drop below ~ 82.5 maf, and there is no consensus agreement among the basin states in place, it is clear that the Lower Division will then attempt to place a compact call on the Upper Division states (and perhaps legally challenge the Secretary’s operation of Lake Powell) to increase deliveries at Lee Ferry.  Where the Shoshone Plant analogy breaks down is what happens once a call is placed. Colorado law directs the State Engineer/Division Engineer how to administer a Shoshone call, but intentionally, there is no equivalent of the Colorado State Engineer in the Colorado River Compact. The Colorado River Compact negotiators debated and rejected a compact commission with enforcement powers.  Arizona’s Winfield Norviel suggested such a commission, but led by Colorado’s Delph Carpenter, it was rejected. Carpenter abhorred the idea of creating what he referred to as a “super agency.”

Except for Article V which provides for the Directors of the Reclamation Service and USGS to cooperate, on an ex-officio basis, with the basin State Engineers to collect and publish data on Colorado River flows and uses, the 1922 Compact provides no role for the federal government.  The Secretary of the Interior is not even mentioned.  Instead, the compact negotiators provided two mechanisms for resolving disputes and enforcing the provisions of the compact.  Article VI is a dispute resolution provision which has never been used.  The somewhat cumbersome provision provides that when a dispute arises, upon the request of one governor, the resolution process can be triggered. If this happens, each state governor then appoints a commissioner to formally negotiate a resolution with the other states.  If the commissioners reach an agreement, it must be ratified by the affected state legislatures, most likely all seven.  If a resolution is reached under Article VI, the compact does not require it to be approved by Congress.

The second mechanism is litigation.  Article IX states: “Nothing in this compact shall be construed to limit or prevent any State from instituting or maintaining any action or proceeding, legal or equitable, for the protection of any right under this compact or the enforcement of any of its provisions.” Thus, if Lee Ferry ten-year flows drop below 82.5 maf, the compact vehicle to implement a “compact call” is for one or more of the Lower Division states to initiate litigation under Article IX and convince the U.S. Supreme Court, or its appointed Special Master, that the Upper Division states are not complying with the compact.

Assuming no agreement among the states to avoid compact litigation, a compact call scenario might occur as follows: The ten-year flow at Lee Ferry is forecast to drop below 82.5 maf tripwire (it might be a little less if corrected for actual deliveries to Mexico).  The Lower Division then states demand that the Secretary increase releases from Lake Powell or, alternatively, the UCRC implement a curtailment to bring the flow up to 82.5 maf by the end of the water year.  Via the UCRC, the Upper Division states respond that they are in full compliance with the 1922 Compact and insist that the Secretary not increase releases from Lake Powell. Lacking a consensus agreement among the states, the Secretary makes no change to the prescribed annual release forcing the Lower Division states to initiate litigation. Assuming the Supreme Court accepts the case, it would now be up to the court or its Special Master to decide if the Upper Division states are in compliance with the compact. If they are not, a remedy could be the imposition of a compact call by ordering the UCRC to implement a curtailment pursuant to the 1948 Upper Basin Compact. How long might litigation take? It could be decades, or the Lower Division states might succeed with a request for immediate relief. No one knows.

While the 1922 Compact does not give the Secretary of the Interior any special power or authority, under subsequent federal legislation and the 1963 decision in Arizona v. California the Secretary has considerable power and authority. For example, under Section 602 of the 1968 Colorado River Basin Project Act, Congress directed the Secretary to promulgate criteria for the coordinated long-range operation of the federal reservoirs. It also set priorities for the annual release of water from Lake Powell. The first priority is “releases to supply one-half the deficiency described in Article III (c) of the Colorado River Compact, if any such deficiency exists and is chargeable to the States of the Upper Division.”

The legislation, however, is silent on who or what entity decides if any such deficiency exists and is chargeable to the States of the Upper Division. According to Tony Davis (link:  Arizona water officials, others blast feds for not protecting dam – Our Community Now), a spokesman for the Arizona Department of Water Resources suggested that the Secretary has this responsibility. But even if the Secretary does ultimately decide how much water must be released from Lake Powell to satisfy the obligation of the Upper Division states to Mexico under the 1922 Compact, if the Lower Division states believe the Upper Division states are violating the 1922 Compact, it could result in litigation.  In fact, a decision by the Secretary to interpret the compact could be the trigger for litigation.  After the Secretary signed the 1970 Long-range Operating Criteria which set a minimum objective release of 8.23 maf per year from Glen Canyon Dam, the Upper Division states seriously considered litigation. They decided against it because they concluded they could not show any actual injury. The impact of climate change on the flow of the river has now fundamentally changed that dynamic.

The Lower Division State’s letter was directed to Secretary Burgum, but it is a message to the entire basin. The March 24-Month study confirms what we already know. The basin has two basic choices: litigation or a basin-wide agreement implementing fundamental change. Let’s hope it’s the latter.