Ag-to-urban water transfers are one of the ways it’s easy to make the Colorado River Basin’s water math balance. Seventy percent of the water is currently consumed by agriculture. Just a fraction of that, transferred to use in cities (AMI, or “agriculture to municipal and industrial”), should make solving the problem relatively straightforward, right?

Brian Devine, who’s working on these issues at the University of Colorado, talks about why this is tricky in practice:

The question that needs answering is threefold. First, what are the impacts of a sizable AMI transfer on the community of origin, and on the purchasing municipality? This question is an empirical one with ecological, economic and sociological dimensions. Second, are these impacts, and the tradeoffs they entail, permissible? This is a theoretical question drawing on environmental ethics and a concept of justice. Third, what can be done to bring these impacts more in line with our ethical demands? This last question is a practical one that demands the promulgation of policy instruments which might have economic, political or ecological flavors. The fact that AMI transfers on a large scale are relatively new and have been the subject of rigorous examination only in the last several years, after scholars turned their attentions away from dams and pipelines, makes any definitive conclusions difficult. AMI transfers, like all water issues in the West, are highly dependent on geographic, political and historical context. Nevertheless, it seems clear that the pure form of water transfers that ignores consequences to third parties has serious harmful effects on areas of origin, effects that cannot reasonably be said to be outweighed by the gains made by receiving areas. Fortunately, there appear to be promising policy options for mitigating these consequences, protecting rural values at risk, and still allowing for the growth of urban regions.

The full piece is worth reading.

This line from a paper a few years back by Edella Schlager and Tanya Heikkila may seem obvious, but in the context of current discussions over the future of Colorado River management, it bears repeating:

A water allocation rule that allocates more water than is available in a river is not well matched to its setting.

Lower Basin Water Budget, courtesy USBR

Yup. That in a nutshell is the problem highlighted by this oft-revisited Bureau of Reclamation slide demonstrating how the Lower Colorado River Basin’s water budget works. Everyone here is following the rules, living within their legal allocation, and Lake Mead keeps dropping because the Law of the River has allocated more water than is available in the river.

This is the critical thing to understand as we see the beginnings of the new “Colorado River System Conservation Program” taking shape, which would create a framework to pay farmers to leave water in the river. It’s not enough to simply save water. The way we go about it must be embedded within, and take into account, the rules governing allocation and distributions of Colorado River water.

Jim Lochhead, now head of Denver Water, wrote an excellent introduction to the problem a decade ago in a remarkably candid history of the Colorado River water wars of 1990-2003 (paywalled). In the early ’90s, it was clear that overuse was an increasing problem. The overuse then came in the form of California’s dependence on surplus that other states had not been using. Nominally, California’s allocation of Colorado River water was supposed to be 4.4 million acre feet of water per year, but since the 1950s, it had been dining on surplus left unused by other states. With Las Vegas’s growth and Arizona’s completion of the Central Arizona Project, the surplus was disappearing, and California had to figure out a way to get from the 5-plus maf it had been using most years down to 4.4 maf.

Imperial Valley ag still thrives despite drought and cutbacks in delivery of Colorado River water to California

In the decade since that time, Southern California has been remarkably successful at making the adjustment. Coastal Southern California’s economy is still as robust as ever, even in the face of the current drought, and the Coachella-Imperial-Palo Verde farm belt is still thriving with big ag. The details of how they did it – the largest ag->urban water transfer in history – are interesting (buy my book! as soon as I finish writing it!). But a critical necessary condition, before the details of fallowing and ag efficiency were worked out, was the need for a change in the “water allocation rules” that Schlager and Heikkila are talking about. The water wars of 1990-2003 that Lochhead writes about were all about the basin states and the federal government realizing the water allocation rules were inadequate. One could argue that the “structural deficit” was in a sense even larger then, and that first round of action was about reducing it.

When you look at the size of the current structural deficit in that Bureau slide above – 1.2 million acre feet per year – the Colorado River System Conservation Program looks modest indeed. We’re likely to see more details as the agreements are finalized over the next week, but at the going price of water, the $11 million effort looks like enough money to generate 75,000 to 100,000 acre feet of water savings. It sounds like most of the initial attention will be initially be focused on the Lower Basin, with Reclamation hoping to issue “requests for proposals” this year to farmers interested in fallowing land for a price per acre foot of water yet to be determined. With Palo Verde, Coachella and Imperial all actively engaged in the already existing California ag->urban transfer programs, much of the action is likely to be on the Arizona side, especially Yuma and Wellton-Mohawk (though I’ve also heard mention of some possible interest across the river with the Bard Irrigation District, which is on the California side of the border but gets Yuma Project water).

When I asked recently whether 75k – 100k acre feet was enough, given a structural deficit an order of magnitude larger, one of the people working on the program pointed out that this is a pilot program, to learn how to do it, then added, “How do you eat an elephant? One bite at a time.”

The 1990-2003 experience suggests that the water conservation piece of this may be the easy part. As a nice new Western Resource Advocates white paper explains, we know how to conserve the water. The key piece here, and the reason the System Conservation Program is so interesting and important, is that we need to get the water allocation rules and river management policies right in order to cause those conservation savings to happen.

In December of 2002, an effort to sort out the problems of the Colorado River appeared as though it was about to blow up. California had long been living beyond its means (using more than the 4.4 million acre feet minimum guaranteed under the Law of the River). The deal would have given California time to reduce gradually – they called it a “soft landing”. But the deal had to be accompanied by a binding California commitment to really get to 4.4.

At the last minute, California tried to insert weasel clauses into the deal, known as the QSA, that would have given them the “soft landing” surplus water now but would have given them a way to wriggle out of their 4.4 maf commitments later. This had happened before – close to a deal, then a “but wait, this one more little thing” from California. On Dec. 9, Assistant Secretary of the Interior Bennett Raley wrote this in a letter to California:

The Department has no interest in a QSA that does not represent a long term Quantification of the parties’ portion of California’s apportionment of Colorado River water, lest in fifteen years we find ourselves as Gatsby did – ‘So we beat on, boats against the current, borne back ceaselessly into the past.’

I am indebted to An Upper Basin Perspective on California’s Claims to Water from the Colorado River Part II: The Development, Implementation and Collapse of California’s Plan to Live within Its Basic Apportionment, a remarkable history by Jim Lochhead.

tl;dr The 1922 Colorado River Compact was supposed to sidestep the “doctrine of prior appropriation”, assuring slow-developing Upper Colorado River Basin states that their fast-growing downstream neighbors wouldn’t lock up all the water. But while that may be true on paper, 21st century reality suggest “prior appropriation” is back.

longer: Bret Walton’s Circle of Blue piece last week on Colorado River Basin water use plans as Lake Mead drops makes clear the states of the Upper Colorado River Basin – Wyoming, Utah, Colorado and New Mexico – will never get the water promised them under the 1922 Colorado River Compact. The result is a sort of de-facto “doctrine of prior appropriation”. By building quickly into their full share, the states of the Lower Basin – California, Nevada and Arizona – may have effectively pre-empted their Upper Basin neighbors:

Utah — like fellow upper basin states Colorado, New Mexico, and Wyoming — is not using all the Colorado River water it was granted by a 1922 interstate compact. The four states have the legal authority to increase their Colorado River diversions.

However, the water they seek may not be available. The calculations of availability stem from wetter hydrological conditions and supply forecasts made nearly a century ago. Under the 1922 compact, the upper basin is entitled to 7.5 million acre-feet. A later agreement apportioned each state a percentage of the available supply. The upper basin’s average annual use between 2007 and 2011, the most recent figures, was 4.6 million acre-feet.

Delphus Carpenter. Picture courtesy Colorado State University library

This is the outcome Colorado water lawyer Delphus Carpenter, the person arguably most responsible for the shape of the complex institutional plumbing governing the Colorado River, was trying to avoid back in the 1920s.

Dubbed by his biographer “the silver fox of the Rockies,” Carpenter was a small-town lawyer in Greeley, Colo., when a battle erupted between his state and neighboring Wyoming over water in the Laramie River.

Representing the Greeley-Poudre Irrigation District, this son of a homesteading irrigation farmer ended up arguing before the United States Supreme Court, defending Colorado’s water in a case that lead to the landmark 1922 decision in the case of Wyoming v. Colorado.

Wyoming had argued that, because its farmers had first put the Laramie’s water to use, their water rights should trump the Colorado irrigators who came after. The U.S. Supreme Court agreed, dealing a devastating blow to not only the Colorado farmers who had hoped to use the Laramie’s water, but to Colorado’s hopes for the future.

The battle over the Laramie was tiny compared to the growing conflict over the Colorado River, where tributaries flowed through seven U.S. states before discharging into the Gulf of California. Development patterns were happening unevenly across the region. If the “doctrine of prior appropriation” upheld by the U.S. Supreme Court in Wyoming v. Colorado was applied to the basin, Colorado and the other states feared fast-growing California would simply get it all.

Carpenter is the architect of the alternative: a compact among the states that divides the water evenly at the start, rather than giving it to whoever uses it first. It appeared at the time the compact’s drafters had sidestepped prior appropriation.

In the legal literature, prior appropriation has been a bit of a Schrödinger’s cat – “alive but irrelevant“, perhaps dead completely. And I’m stretching the argument to even invoke prior appropriation here. It’s not being invoked in the Colorado River Basin as a legal matter. It’s simply the practical nature of the thing.

California, Arizona and Nevada developed their full share of the river’s water. The other states didn’t. And now there’s no water left.

Click for more background:

• Silver Fox of the Rockies: Delphus E. Carpenter and Western Water Compacts
• In Memorium: Prior Appropriation, 1848-1991, by Charles Wilkinson
• Alive but Irrelevant: The Prior Appropriation Doctrine in Today’s Western Water Law, by Reed Benson

At this point it’s just a parlor game, but has Lake Mead broken through the old “lowest since they filled it” record yet or not? Regardless of the fractions of an inch involved, it’s a big deal. (Go to Circle of Blue for an explanation.) But the conversation this week has been a bit confused about whether we’ve actually crossed this milestone or not.

Here’s how the Bureau of Reclamation put it in their official news release Tuesday:

BOULDER CITY, Nev. – Lake Mead, the reservoir created by Hoover Dam, is anticipated this week to reach its lowest water level since the lake’s initial filling in the 1930s. The Bureau of Reclamation’s Boulder Canyon Operations Office is projecting the elevation to drop to 1,081.75 feet above sea level during the week of July 7 and to continue to drop, reaching approximately 1,080 feet in November of this year.

The old “record” was set in 2010, when Lake Mead bottomed out at 1,081.85 feet above sea level in the 9 p.m. hour on Nov. 27 (source pdf):

Lake Mead’s previous record, courtesy USBR

On Tuesday, the same day as the press release went out, Mead briefly dropped below that point, to 1,081.84:

With apologies to Emily Green, Lake Mead – Low Bad

But it didn’t last, popping right back up. Hydrologists at the Bureau point out that the levels were bouncing around quite a bit, and there was a storm in the area, so maybe it’s questionable data? We’re talking tiny fractions of an inch here, which is why this is just a silly parlor game. On Wednesday, it briefly got as low as 1,081.82 before popping back up.

July 9 Mead levels

On Thursday it hovered above the old “record” all day (and it rained!). Today, it’s still above the old record.