A desert landscape. Corrales, New Mexico, January 2023. Photo by John Fleck

Writing in 2018 in the Seattle Journal of Environmental Law, Kait Schilling argued that the doctrine of prior appropriation – the notion that those who first put water to use hold priority over those who came later – was no longer compatible with a climate-changed world.

Climate change is diminishing water rights equally regardless of date of appropriation. Such a phenomenon makes the “first in time, first in
right” rule difficult to grapple with because right holders will be unable to access their water to its fullest extent. Because every human has a right to fresh water, the first in time, first in right mentality can no longer be sustained with the current state of climate change and population growth.

The two sides of the argument:

1. equity requires sharing the pain across all water users – seniors (mostly farms but also Native American communities) and juniors (mostly cities)
2. to respond to climate change-induced shortages, we need to cut off juniors, or make them compensate seniors for the water they need

This debate is the narrow eye of the needle we’re trying to pass through right now in the rapid-fire negotiations underway to deal with this Colorado River crisis.

The sticking point in the current Colorado River negotiations

In a letter submitted to the U.S. Department of the Interior in December, Arizona’s water leadership – the Department of Water Resources and Central Arizona Water Conservation District – argued for “1”. (Huge thanks to Daniel Rothberg at the Nevada Independent for collecting and posting the letters and also writing some smart stuff about what’s in them – journalism as a public good. The context here is Interior’s request for scoping comments on the agency’s crisis management Supplemental Environmental Impact Statement – SEIS):

All water users share risk from these conditions and the SEIS should ensure that the burdens associated with managing that risk are shared across all sectors and by all water users.

In their letter to Interior, the staff of the Colorado River Board of California argued for “2”:

Finally, some across the Basin have advocated for Lower Basin water users to be individually assessed for reservoir evaporation, seepage, and other system losses. The Board recommends that these losses continue to be treated as a diminution of available annual supply, which can then be met through application of the Law of the River as supplemented by voluntary agreements.

I plead guilty to a misleading oversimplification here, because in their arguments both Arizona and California are making a broader argument about equitable sharing of both the impacts of climate change but also the underlying problem of the river’s overallocation. In defense of my oversimplification, I’ll simply assert that it is the “hot” part of our “hot drought” (see Udall and Overpeck 2017) that makes the difference between the successful gradual process of negotiation we’ve using for more than two decades (see my book Water is For Fighting Over) and the crisis management of 2023.

Could a decent snowpack widen the eye of the needle we must thread?

An improving forecast. Source: Colorado Basin River Forecast Center

Curled up with my morning coffee this morning  (with a huge thanks to the supporters of this blog who bought it for me), I was happy to note that the snowpack is decent right now, and therefore the Colorado River runoff forecast, is up 650,000 acre feet from Jan. 1. That’s an extra ~10 feet of elevation in Lake Powell, which is ~10 feet farther from the white hot fire of crisis management at Glen Canyon Dam.

One argument here is that even a decent year, by lifting the pressure on Glen Canyon Dam -> more water to Lake Mead -> less pressure for really deep cuts now -> less risk of litigation. (I have my own views on this argument – I disagree with it, which I’ll explain below – but I’m trying to do the “view from nowhere journalist” thing here, and I want to give the people I disagree with their best shot, because the argument is not unreasonable.)

The litigation risk

In its EIS comments (see Daniel’s excellent work, did I mention its useful excellence? for the link), the Southern Nevada Water Authority laid out a plan calling for extremely deep cuts regardless of what the near term snowpack and runoff looks like – ~2.6 million acre feet of Lower Basin cuts from the states’ baseline allocations, essentially now. I’m torn between two similarly useful metaphors for what Southern Nevada says is needed – “ripping the bandaid off” and “a tourniquet, not a bandaid”.

In laying out its argument, Southern Nevada does version “1” above, much like the language of Arizona’s letter to Interior, with a call for distributing a portion of the cuts (those allocated to evaporation and system losses) sorta evenly across all water users.

I made much the same argument in my December letter to Interior, so I’m sympathetic to distributing the evaporation and system losses across all users before we think about allocation of the next level of cuts needed.

But here’s the thing that’s wrong with my argument.

To do that, you have to step outside the doctrine of prior appropriation. And the seniors – everyone mentions Imperial Irrigation District at this point, but they’re not the only senior with smart lawyers being asked to take cuts in this scheme, most notably Native American communities, who have deep legal and moral standing – will sue.

Flip the script, though, and try to take tourniquet-level cuts without spreading them broadly and you probably have to dry up the Central Arizona Project canal. Cue the “they’ve got smart lawyers and will sue” song. (To further complicate things, that would jeopardize the rights of Native American communities in Central Arizona that get their water through the CAP!)

This is the argument my smart friends who disagree with me make: A decent runoff this year would allow us to make more modest cuts (still substantial, but not nearly as deep) while avoiding tangling up the whole mess in the courts. I disagree, as I’ll explain below, but it’s not an unreasonable argument.

On bandaids and tourniquets

Obligatory “dancing with dead pool” visual reminder

In my comments to Interior, written in a Covid fever in December, I made an argument strikingly similar to Southern Nevada’s (“There was no collusion,” Fleck pleaded. “It’s just arithmetic!”) – that we need deep cuts now and forever. This is the tourniquet argument, and why I disagree with the “take advantage of a decent snowpack to make more modest cuts and avoid litigation” argument. The “now” part is because we’re staring down dead pool, and the “forever” part is that the river was always overallocated, and with climate change it’s now really honest truly overallocated for sure.

Even if we have a decent snowpack, I believe it is imperative that we use that water to refill reservoirs rather than irrigate alfalfa and lawns.

I’m genuinely concerned about throwing this whole thing into the courts. As we learned with Arizona V California six decades ago, litigation is a terrible way to manage a river. Much of our dilemma today is a result of the Supreme Court ignoring arithmetic and allowing us to overuse the river’s water.

My friends who argue for taking advantage of a bit of extra water, if we’ve got it, to try to stay out of court are not making an unreasonable argument.

But we can’t entirely blame the Supreme Court for our troubles. Part of today’s dilemma is the result of our failure to do the hard work of grappling with the court’s mistakes and sufficiently reduce our use of water. We’ve been avoiding litigation for too long by emptying the reservoirs and letting people use the water to irrigate alfalfa and lawns.

A looming, invisible threat

A review of Calendar year 2022 on the Colorado River

Colorado River reservoir storage dropped 3.1 million acre feet this year, but there is a proposal now being circulated among the Basin States to cut use by that much to bring the system into balance.

Total Storage

Total year end storage in Lake Mead, Lake Powell, and a handful of key Upper Basin reservoirs (Flaming Gorge, Blue Mesa, and Navajo)

• end of 2022: 16.5 million acre feet
• end of 2021: 19.6 maf
• start of the 2000s: 51.8 maf

Source: USBR Hydrodata

a looming, visible threat

Lower Basin Use

Total Use by the Lower Basin States: 6.669 maf, 89 percent of their base allocation of 7.5 million acre feet under the Supreme Court’s Arizona v. California decision. The state by state breakdown:

• Nevada: 223,512 acre feet, 74.5 percent of their base allocation
• Arizona: 2,015,097 acre feet, 72 percent of their base allocation
• California: 4,430,670 acre feet, 100.7 percent of their base allocation

This is Arizona’s lowest withdrawal from the main stem of the Colorado River since 1992.

Mexico received 1.45 million acre feet, 97 percent of their base allocation under the US-Mexico treaty.

Source: Dec. 31, 2022 USBR Lower Basin end of year tally

Total Upper Basin Use

We don’t know yet. It takes a while for the Upper Basin Consumptive Uses and Losses reports to emerge.

I’ll leave a “maybe 4 million acre feet?” placeholder here for now.

Lake Mead Shipwrecks

Total Lake Mead Shipwrecks – sunken speedboats emerging as the reservoir wastes away – that I saw on my pre-Colorado River Users Association bike ride earlier this month: 3.

Cuts needed next year to stabilize the system

Per Reclamation Commissioner Camille Touton, testifying before Congress last year, we need 2 to 4 million acre feet of cuts to stabilize the system.

There was a proposal discussed at the Colorado River Water Users Association meeting in Las Vegas earlier this month (in closed basin states meetings, not in the open sessions) that calls for 2.6 million acre feet in Lower Basin cuts from the 7.5 million acre foot AZ v. CA baseline and 500,000 acre feet in Upper Basin contributions.

That would be a 1.8 million acre foot cut from 2022 levels in the Lower Basin, and another 500,000 acre feet in the Upper Basin.

The proposal came from the Southern Nevada Water Authority, and seems to have been embraced by the other states not as the solution, but as the starting point for a discussion over the next month, with the hope of a Basin States “consensus proposal” by the end of January. This is a good sign. Daniel Rothberg of the Nevada Independent kindly posted the full proposal, as submitted by SNWA Dec. 20 to Interior in response to the agency’s request for comments on its Supplemental Environmental Impact Statement, and Colton Lochhead covered it for the Review-Journal.

I’m hoping to write more about this last bit as soon as my Covid fog clears (caught it at CRWUA and I’m mostly laying around feeling sorry for myself, doing crosswords, not riding my bike, and thinking and writing poorly, hence the brevity – perhaps that’s not a bad thing – I successfully did the Friday New York Times crossword, which I’m usually not smart or patient enough for).

Ringside seats to the decline of Lake Mead

I came away from a week in Las Vegas more hopeful about a deal to prevent a Colorado River crash than I have felt since the ominous day last March when Lake Powell dropped below elevation 3,525.

The annual meeting of the Colorado Water Users Association is a bit like the shadow puppets of Java – projections onto a public stage of things hinted at but largely unseen behind.

On display in public this year, in the formal CRWUA panels, was a frank discussion of the river’s problems that I found unprecedented.

Behind, in the realm of the puppeteers, was even more frank talk about the shape of a deal that would be needed to halt the reservoirs’ declines. It’s still a longshot, with a narrow path to success and a very tight deadline – whatever “consensus plan” the seven Colorado River Basin states come up with has to be delivered to the Department of Interior by the end of January.

But going into CRWUA, I could see no path. Now one is dimly visible.

Managing based on inflow, rather than reservoir levels

A Kuhnian paradigm shift?

At the heart of the art of the possible here is shift in the discussion of a management framework, from the well-worn path of management by reservoir levels (if Powell “x” and Mead “y”, do “z”) to a system based on inflows. If less water flows in, you have to take less water out.

Phrased that way, it sounds so obvious, but it’s a major shift from the way the system was built and has been managed for a century. The reservoirs were built to store surplus when it’s wet to be used when it’s dry. I try not to use the phrase “paradigm shift” loosely, and it’s not entirely clear that it applies here. But the change that we’re seeing bears a lot of the hallmarks of the historian and philosopher of science Thomas Kuhn’s original formulation of the concept – the accumulation of enough anomalies that you can no longer stick to the old way of thinking.

I point here, by way of metaphor, to the accumulating shipwrecks emerging from the shores of Lake Mead.

What the hydrologists call the “mass balance problem” makes this inevitable. In the long run, you can’t take more water out of a reservoir than flows in. But the realization earlier this year that Reclamation’s engineers are uncomfortable using Glen Canyon Dam’s lower elevation outlet works has place the mass balance barrier squarely within the range of the next few years’ planning. If you believe them (and, importantly, the Department of Interior seems to), then there’s no way around shifting pretty quickly to a management regime in which the water you release from Lake Powell has to match up each year with the amount that flows in.

So what changes in river management when you shift to an inflow-outflow regime?

As soon as you adopt a policy that says that releases from Lake Powell are essentially limited to what flows into the reservoir – which is the practical equivalent of “protecting elevation 3,490” or whatever line the river management community chooses above that to offer a safety buffer – 3,525 used to be the number people talked about, but we blew right through that last March – you trip two significant management triggers:

• you face the very real prospect of Colorado River flows past Lee Ferry dropping below the 10-year standard set by the compact, triggering either a compromise or a very ugly legal fight
• you face the very real prospect of deep cuts for water users in the Lower Basin, because you pretty quickly turn Lake Mead into an inflow-outflow system too – and/or very ugly legal fights

I could have written all of that before CRWUA began. In fact, I did.

But going into CRWUA I believed the only way to tackle those problems was with a federal intervention. Now there seems a hope of a collaborative solution – of which I’m a big fan.

Relaxing the Lee Ferry Constraint

There were encouraging signs this week that compromise might be possible on the first point, that the Lower Basin might agree to look the other way at a Lee Ferry shortfall, if the Upper Basin states are willing to get past their “it’s a Lower Basin overuse problem” mantra of recent years and kick in some reductions of their own. My read on the situation is that it won’t take a lot of water – folks in the Lower Basin get the fact that it’s primarily their problem. But I’m not in the negotiating room. This will almost certainly be harder than my usual naively optimistic expectation, right?

Cutting Lower Basin Use

Regardless of how the Lee Ferry thing plays out, the hydrologic reality is that there will have to be deep Lower Basin cuts – far deeper than anything contemplated to date. The fact that extreme scenarios are being discussed among the states, rather than having state officials step aside and make the federal government impose them (or, in reality, as newly named Upper Colorado River Commission member Anne Castle reminded us, having climate change impose them) was encouraging to see in the shadows of the CRWUA puppets visible to us outsiders.

That’s incredibly important to the Lee Ferry point, because if the Lower Basin can get together and take on the herculean task of coming up with a formula to agree to the necessary cuts rather than having them be imposed, the Upper Basin is more likely to be willing to contribute without their longstanding worry that anything they kick in will just be sucked up and used in the Lower Basin.

In other words, legitimate action by the Lower Basin states makes Upper Basin action more possible.

My twinkly collaboration fanboy smile should not mislead you into thinking this will be painless – there will be a lot less water for cities and agriculture, and it would be a legal and moral failing if Tribal sovereigns are not brought into this discussion. All of those things make this really hard.

What Happens Next

All of this – an implicit relaxation of the Lee Ferry constraint, voluntary deep cuts in the Lower Basin, and an Upper Basin commitment to contribute some water – seemed to me beyond reach before we gathered at CRWUA. But behind the scenes there was serious, good faith attention to all of them, without the people making the proposals getting laughed out of the room. As Southern Nevada’s John Entsminger told the Nevada Independent’s Daniel Rothberg, the basin states are “still fairly far away from coming to consensus, but we’re closer than we were on Monday.”

Responses to Interior’s request for comments on its crisis-management-in-real-time planning effort are due Tuesday. It will be interesting to see if any of the Basin States offer up a formal first pass at a plan. And Reclamation has asked the states to provide a consensus scheme by the end of January.

Heading into CRWUA, I believed no such consensus was possible. I’ve updated my priors.

Lake Mead shipwreck

LAKE MEAD – The Park Service has cut a raggedy new dirt road (“4×4 recommended”) north of Hemenway Harbor along Lake Mead’s receding shoreline so you can still get in to go fishing and do the beach thing.

Mead was at elevation 1,043 and change as I rode it on my bike yesterday afternoon, with lunch and time on my hands to ponder the stakes. You could see the uppermost Las Vegas water pipe, exposed to the winter air, and the stranded intake from the World War II-era Basic Magnesium factory.

I passed three Lake Mead shipwrecks, the media icons of the great collapse, ruin porn of the Colorado River. I was happy, I guess, to finally bag the pictures for myself. I guess?

It was my annual pre-Colorado River Water Users Association Lake Mead visit – a bike ride along the reservoir, a trip to Hoover Dam, some quiet time in Boulder City before heading into the madhouse of Las Vegas and CRWUA and a Colorado River in crisis.

Managing in crisis mode

The challenge right now is a very practical one. We’ve no longer time the sort of vague generalizations I got when I turned to ChatGPT for help – “Implementing stricter water usage regulations and reducing water waste can help bring the supply and demand of the Colorado River into balance.” Great. Thanks. How we gonna do that?

The Colorado River brain trust has to write new rules, and it has to write them now, in a very specific way, with little time or room for error.

I have long had a dodge when reporters or my students or whoever asked me what I think we should do: It doesn’t matter what I think we should do, I would tell them. What matters, I would say, is what emerges from the seven states and the federal government, and increasingly the Tribes and others who who now, rightly, find themselves at the negotiating table(s).

Unfortunately, what has emerged from that process is shipwrecks emerging from Lake Mead.

So I’ve dropped the shield and begun thinking about how I would rewrite the rules, if anyone asked me. Come to think of it, the Federal Government has asked me, along with all the rest of you, via this Federal Register notice. You’ve got a week left before your assignment is due.

Basically, we need to do two things.

First, we need to rewrite the rules governing releases from Glen Canyon Dam to protect Lake Powell from reaching critically low levels that, by forcing the use of the dam’s lower outlet works, might threaten the structural integrity of the dam. We do this by setting a maximum release from Powell based on the current year inflow.

Second, we need rules to cut far more deeply into Lower Basin water use, like right now – far deeper than the rules we’ve got now. They’re just not sufficient. We have to include evaporation and system losses as part of each Lower Basin state’s allocation.

Saving Glen Canyon Dam

Section 6, Interim Guidelines

Section 6C and 6D of the 2007 Interim Guidelines is the critical first step.

This is where the current rules lay out how much water is to be released each year from Glen Canyon Dam. Note the quaintly anachronistic “Lake Powell Active Storage” column on the right, with “dead pool” – zero active storage – at elevation 3,370.

If Reclamation decides it doesn’t trust the dam’s outlet works, which sit down there, then suddenly “active storage” doesn’t start until elevation 3,490, the level of the power plant intakes.

For now at least, 3,490 is the new dead pool.

That would mean that at elevation 3,525, rather than having 5.93 million acre feet of “active storage” – the amount of water above “dead pool” – we’ve really got less than 2 million acre feet of really actually usable, releasable water in Powell. The whole notion of “balancing” active storage in Mead and Powell, so central to the ’07 Guidelines, now has to look completely different.

When you get close to dead pool, you’ve got a “run of the river” system, which means that the only water that leaves a reservoir is the amount that comes in. Given that we’re apparently redefining that for Powell on the fly, the new versions of 6C and 6D somehow have to restrict releases from Powell to not much more than comes in. Basically starting now, and for the foreseeable future, until we can begin to refill Powell or drill some new tubes at the bottom that we trust.

A simple approach to the new rule here might be rewrite the release rules when you’re in the “Mid-Elevation Release Tier” (below 3,575) and the “Lower Elevation Release Tier” (below 3,525) to cap releases to inflow minus evaporation. That would set a sort ratchet that would prevent a further decline in Lake Powell below its current dangerously low levels.

You could start the year by capping Powell releases at the 24-month study’s “minimum probable” unregulated Powell inflow level, with the option of raising the release an April review based on the “most probable” unregulated inflow. Minus evaporation. You’d have to subtract evaporation from that.

Other than that, the 6C and 6D rules could stay the same.

Saving Lake Mead

As the modeling presented by Reclamation in its webinars two weeks ago shows, if you operate Powell the way I describe under low flow scenarios, you can crash Mead in a hurry. We need rules that are ready for that.

the Lower Basin “structural deficit”, reified

Taking evaporation and system losses off the top before we begin handing out water is a start. The “structural deficit” is real, it’s a result of not taking evaporation and system losses into account, and it’s written in shipwrecks emerging from the depths of Lake Mead.

Right now evaporation and system losses are in the ballpark of 1 million acre feet per year, but to be on the safe side, let’s set them at the 1.2 million acre foot per year level in the classic Reclamation “structural deficit” Powerpoint slide.

So the cuts in section 2D of the Interim Guidelines would have to be rewritten, with Arizona, Nevada, and California taking a proportional share of system losses right off the top.

You can do this some really complicated ways, based on the distance downstream of each user’s intake – so Imperial and Yuma would take a bigger system losses hit, and Las Vegas (pulling straight out of Lake Mead) would only suffer evaporative loss.

That seems like a recipe for scientized litigation, so my proposal is simple: Everyone shares this equally (sorry, Nevada friends).

That would leave us with a base allocation that looks something like this:

The cuts in the big ’07 Guidelines/DCP allocation tables would then be deducted from these numbers. So under this scenario, if we drop into the Mead elevation 1,040-1,045 tier, the total allocations would be:

Notably, this gets us to the 2 million acre of cuts Reclamation Commissioner Camille Touton said we need in her testimony to Congress last summer.

Upper Basin

This obviously doesn’t touch the Upper Basin. The process Interior is using for this round of crisis management – a straight up revision to the ’07 Guidelines – doesn’t seem to offer a clear path to force the Upper Basin to come up with contributions of their own. For now, I’m OK with that. Since the ’07 Guidelines were signed, the Upper Basin has delivered more than 10 million acre feet of water above the required 8.25 million acre foot annual requirement. Despite that, the Lake Mead shipwrecks are emerging from the shallows. The key  here is clearly to get Lower Basin overuse under control.

But I don’t think in the longer term the Upper Basin is off the hook. Reclamation’s modeling clearly shows a risk of the Upper Basin slipping below its 82.5×10 obligation if we have a few more bad years. We need a plan to deal with that. And it’s also a matter of fairness, in my view. We all have to contribute.

My scheme for Upper Basin contributions involves the next wet year – figuring out how to forego some of the Upper Basin storage we’ve got and get that water into Lake Powell instead. Suggestions for how to write that rule are welcomed – bonus if anyone can figure out how to fit that into the rewrite of the ’07 Guidelines currently underway.

Collaboration

I still believe in the power of the collaborative governance framework we’ve developed in the Colorado River Basin. As Assistant Secretary of Interior Tanya Trujillo told me when I was moderating her appearance at last summer’s Getches-Wilkinson Center conference, we’d be in a lot worse shape without it.

For what it’s worth, ChatGPT agrees: “Collaboration and cooperation among states and water users is crucial in finding solutions to the supply-demand imbalance on the Colorado River.”

Thanks to a helpful wizard here at the Utton Center, we’ve now got all the Eric Kuhn/John Fleck Colorado River Compact Centennial posts gathered in a single spot.

samizdat?

The Bureau of Reclamation folks haven’t posted the slides yet from last week’s Supplemental Environmental Impact Statement briefings. In the meantime, some of us in the Colorado River nerd world have been passing around our screenshotted copies like some sort of precious mimeographed ’60s ‘zine.

It was a remarkable affair.

Buried in the tables and graphs was a sobering message: If we are to take climate change seriously, we need to be prepared for the possibility of:

• driving Lake Mead to “dead pool” in order to protect the structural integrity of Glen Canyon Dam
• driving Lake Powell below the critical power pool threshold, where Reclamation is forced to use Glen Canyon Dam’s dicey outlet works, in order to protect Lake Mead from reaching dead pool
• releases from Lake Mead of as low as 3.8 million acre feet in a single near future year – a ~5 million acre foot reduction from current levels
• Lake Powell releases dropping below the 10 year-by-75 million acre foot benchmark set by the Colorado River Compact. Not merely the 10×82.5 maf number that includes the Upper Basin’s share of the U.S. Mexican treaty obligation. Below 10x75maf.

To be clear, Reclamation is not projecting those numbers. Rather, this is the no-holds-barred reality check being offered by Reclamation’s technical team of a plausible scenario for which we need to be prepared.

Given the context in which these numbers are being offered – new operating rules under a revised version of the 2007 Interim Guidelines – it seems clear where this is headed.

Refilling

First and foremost, if we have a wet year this year, we need to hold water back now. I can imagine, for example, a new rule that constrains releases from Glen Canyon Dam indexed to inflows – perhaps “don’t release any more water from Glen this year than last year’s unregulated inflow”. If my hypothetical rule takes evaporation into account, that would mean something around a 6maf Powell release in 2023.

Just hypothetically.

One of the flaws we can now clearly see in the ’07 guidelines is that they were keyed to reservoir elevations rather than the actual flow of the river, in a way that allowed us to drain Mead and Powell. We have a chance for a tweak to save us from the worst of that over the next few years.

Lower Basin use

Cutting Powell’s releases, as we must do, quickly crashes Lake Mead, pushing it well down into the ’07 guidelines shortage tiers. But the model runs presented by reclamation show those current shortage tiers won’t be enough.

So a new set of rules, to get us through the next few years, has to offer up much deeper Lower Basin cuts than the current rules in the ’07 guidelines and Drought Contingency Plan. It also seems clear, after staring at Reclamation’s slides from last week’s briefing, that we need the cuts to kick in sooner, at higher Mead levels, if we are to be prepared for the possibilities contemplated in the briefing. I’m intrigued by a “double DCP” notion that’s been kicking around the basin community, because it’s based on ratios for shortages among the Lower Basin states that have already been negotiated.

My back-of-the-envelope look at those numbers suggests to me that Double DCP at higher Mead elevations might be going a little harsh on Arizona and easy on California. Dunno. Thinking about equities, “present perfected rights”, Tribal water, environmental flows, and my friends in the Lower Basin gives me a headache.

But I’ve got plenty of aspirin and 16 days until Interior’s deadline for comments, so perhaps I’ll make it.

The Colorado River before Hoover Dam

By Eric Kuhn and John Fleck

After signing the Colorado River Compact on Friday, Nov. 24, 1922, the commissioners and their advisors returned to their home states. The compact would not become effective until it had been ratified by the legislatures of each of the states and the United States Congress. It was now time to prepare reports, answer questions, and work for state approval.

The ratification process was difficult. It would take 78 months before Congress finally approved a six-state pact and 22 years before all seven states agreed to it.

Arizona: Norviel

Arizona’s Winfield Norviel had the most difficult path ahead. Governor-elect George Hunt was opposed to the compact. Norviel knew that his job as the state’s water commissioner would be ending soon after Hunt took office. It’s a credit to Norviel that he simply didn’t tell the other commissioners that, given Hunt’s position, Arizona was not interested in agreeing to a compact, pack his bags and go home. Instead, he went back to Arizona and advocated for ratification. Hunt was reelected in 1924, again in 1926, lost in 1928, then won for the last time in 1930, always championing his opposition to the pact. Norviel died in 1935, nine years before Arizona ratified the compact.

Utah: Caldwell

Utah’s R.E. Caldwell returned to Salt Lake City and wrote a detailed report recommending ratification of the compact. The Utah legislature quickly complied. Caldwell resigned as State Engineer on July 1st, 1924, to “attend to personal business.” There is no evidence in the record that Caldwell stayed involved in Colorado River issues after his resignation. George Dern, who defeated Charles Mabey in 1924 for governor became Utah’s point man on the Colorado River. Caldwell died in 1959.

California: McClure

California’s W. F. McClure returned to Sacramento and wrote a short report. With the help of the Imperial Irrigation District, he obtained a clean ratification on February 3rd, 1923. In 1925, the California Legislature made its approval of the compact contingent upon Congressional approval of the Boulder Canyon Project. McClure never developed an effective working relationship with nor gained the full trust of the Imperial Irrigation District officials and the other Southern Californians with interests in Colorado River. He was a critic of the All-American Canal Project. McClure died in 1926. To represent the state on Colorado River matters California created the five-member Colorado River Commission in 1927 which became the Colorado River Board of California in 1937.

New Mexico: Davis

New Mexico’s Stephen Davis wrote a short report recommending ratification and, like Utah, its legislature quickly ratified the compact. On the same day that it approved the Colorado River Compact, February 7^th, 1923, it also ratified the La Plata River Compact. The compact which covers a small tributary of the San Juan River shared by New Mexico and Colorado was negotiated by Carpenter and Davis and signed on November 27^th. During the negotiations, Davis, who had resigned from the New Mexico Supreme Court when he was named its Colorado River Compact Commissioner, gained Hoover’s respect and confidence. In 1923 he became Solicitor of Hoover’s Department of Commerce. He later practiced law in New York from 1928 until death in 1933.

Nevada: Scrugham

James Scrugham, who had been elected Governor in November 1922, returned to Carson City and wrote a short report. Nevada’s legislature became the first state to ratify the compact on January 27^th. He lost his bid for reelection in 1926. From 1932 – 1942 he was Nevada’s sole member of the U. S. House of Representatives. He was elected to the U. S. Senate in 1942, serving until his death in 1945.

Wyoming: Emerson

Wyoming’s Frank Emerson wrote a detailed report. The Wyoming legislature ratified the compact on February 9^th, 1923. Emerson also became a governor, elected both in 1926 and 1930. As governor, he was actively involved in Colorado River matters, pressing Congress for approval of the compact and authorization of the Boulder Canyon Project. Emerson died while in office in 1931.

Colorado: Carpenter

Colorado’s Delph Carpenter returned to Greeley, Colorado where he also wrote a very detailed report, but ratification by his state was not easy. In March he had to write a supplemental report and call on Hoover to help him address several questions. Colorado ratified the compact on April 3^rd, 1923. After Hunt was reelected Governor of Arizona in 1924, Carpenter became convinced that Arizona would not ratify the compact, so he became the quarterback of the six-state approval process that was implemented in 1928 when Congress passed the Boulder canyon Project Act. Carpenter, heralded as the father of interstate water compacts, was afflicted with Parkinson’s disease. He became bed-ridden in 1933 and died in 1951.

Chairman Hoover

Commission Chairman Herbert Hoover worked with the other commissioners to obtain ratification by their states. In 1928, he was elected as the 31^st President of the United States. As president, on June 25^th, 1929, he issued a proclamation declaring the Boulder Canyon Project Act effective. The act provided Congressional approval of the compact and authorized the construction of Boulder Dam, now Hoover Dam, and the All-American Canal. The legislation included a six-month window for California to limit its uses to 4.4 million acre-feet per year of Article III(a) water (plus ½ of the unappropriated surplus), for Utah to approve a six-state compact, and for the basin states to make one more attempt to make an agreement with Arizona. They failed. Hoover lost the 1932 election to Franklin Roosevelt in 1932. He died in 1964.

Reclamation’s Davis

The Commission’s primary technical advisor was Arthur Powell Davis, Director of the Reclamation Service. Davis returned to Washington D.C. where he helped Hoover address Congressional questions about the pact. More of a hands-on engineer and visionary than an administrator, Davis saw the compact as key to approval of the Boulder Canyon Project, which would reenergize his struggling agency.

The struggles ran deep. Two decades after the Reclamation Act laid out a vision for irrigating the West, projects were floundering, with farmers largely unable to repay the ten year interest free “loans” from the federal government that were the projects’ financing mechanism. The original ten year payback scheme had already been extended to twenty, but many irrigation projects were nevertheless abandoned because the irrigators could not pay.

On June 19^th, 1923, the day after the Reclamation Service became the Bureau of Reclamation, Davis was dismissed by Interior Secretary Hubert Work. A year later Elwood Mead was hired as Commissioner. Under Mead, the Bureau of Reclamation would become a major agency building the world’s tallest dam, Hoover Dam, and the world’s largest hydroelectric project, Grand Coulee. Davis then became a consultant for California agencies. He died in 1933. In 1941, Interior Secretary Harold Ickes proclaimed that the dam being planned on Colorado River below Hoover dam at Bullshead (also known as Bullhead) would be named after Davis.

The others

Two technical advisors, Colorado’s R. I. Meeker and Utah’s Dr. John Widstoe participated in both the 1922 and 1948 Compact negotiations. For the 1948 Upper Basin pact, Meeker was an advisor to Arizona.

As far as the authors can tell, no women were listed in the attendees to the Colorado River Compact negotiations. It is likely that Commission Secretary Clarence Stetson had clerical help. If so, they were never acknowledged.

There is no evidence that any Tribal members attended, or were even consulted, about the fate of the river in whose basins they had been living for time immemorial.