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.

By John Fleck and Eric Kuhn

waxing poetic

As the Colorado River Compact’s negotiators trekked home in the final week of November 1922 following the completion of their task, the rhetoric soared.

Newspapers across the basin published the text of the Compact in full, and the leaders of the negotiation effort fanned out to praise the effort and lay the groundwork for the next steps.

Herbert Hoover, the Commerce Secretary, Commission chairman, and the diplomat who had steered the negotiations through the narrow space for compromise available, spared little in his enthusiasm, nor in his optimism of the next steps. From a Los Angeles radio address:

The foundation has been laid for a great American conquest. The harnessing of the giant Colorado river will follow the ratification of the pact by the seven states of the Colorado river basin. With such ratification, the next step will be the construction, without delay, of a control dam, under authorization of congress.

Then the southwest will come into its magnificent heritage of power and life giving water, and all the nation will be vastly benefitted.

Arthur Powell Davis, head of the Reclamation Service and technical leader of the Compact efforts, framed the agreement as an end to conflict over the river’s water:

It will obviate the delay and acrimonious litigations which a year ago seemed imminent and has cleared the way for the provision of flood control and irrigation storage urgently needed and indispensable to further development in the Colorado river basin.

There would be “millions of homes” (Hoover’s words), a vast expansion of irrigation, and flood protection for the Imperial and (Hoover was at pains to point out to the Arizonans) Yuma valleys.

The sales pitch – plenty of water for all

Reclamation’s Davis laid out the central sales pitch:

The natural flow of the Colorado river averages nearly 20,000,000 acre feet per annum.

The Upper Basin’s 7.5 million acre foot allocation was “more than double its present needs,” enough to bring another 3 million acres under irrigation, “sufficient for all feasible projects, and some of doubtful feasibility.”

Similarly, with the creation of storage, the Lower Basin would be able to greatly expand its irrigated acreage.

And will all that, Davis argued, the deal left a 4 million acre foot “surplus”, enough to meet the needs of a future treaty with Mexico and to return in the future to reallocate the rest.

Next steps

The next steps – ratification, legislation, construction – seemed naively simple.

“Confidence that all the state legislatures will approve the compact was expressed by various commissioners,” the wire services reported out of Santa Fe.

As if ratification might be treated as a formality, attention turned immediately to Congress, where officials eyed the pending Smith-McNary bill as a vehicle to launch the Colorado River projects.

Both would take far more time – six years for Congressional action, more than two decades for state ratification, with the start of construction sandwiched in between.

But the changes to the West to be wrought by the Compact’s fewer than 2,000 words were now underway.

The Compact’s Signers

By Eric Kuhn and John Fleck

The final day of the Colorado River Compact negotiations seemed almost anticlimactic.

Wordsmithing “unperfected rights”?

Unable to reach a final agreement on Article VIII on Thursday evening, the Commission met again on Friday morning, Nov. 24, 1922, at 10 AM. They began with a discussion of “unperfected rights.”  The concept behind the article was that rights that were then using water would not be impacted by the compact but once storage of at least 5,000,000 acre-feet of capacity was available, perfected rights on the lower river, like the Imperial Irrigation District, would be solely satisfied by that storage and would no longer have the right to call for water being used by junior rights upstream of Lee Ferry. All unperfected rights, including what Hoover call “inchoate rights” – those that were being planned but were not yet using water – could only consume water apportioned to the basin in which they were situated.

There were many of these inchoate rights out there, including George Maxwell’s Arizona Highline Canal which would eventually evolve into today’s Central Arizona Project. There was also the Girand Project, a proposed large private power dam in what is now the western Grand Canyon, and Los Angeles was in the early stages of exploring an aqueduct from the Colorado River. The compact would be useless if these types of projects had potential claims on the water uses above Lee Ferry. The commission finally, but reluctantly, agreed to:

“Present perfected rights to the beneficial use of waters of the Colorado River System are unimpaired by this compact. Whenever storage capacity of 5,000,000 acre-feet shall have been provided on the main Colorado River within or for the benefit of the Lower Basin, then claims of such rights, if any, by appropriators or users of water in the Lower Basin against appropriators or users of water in the Upper Basin shall attach to and be satisfied from water that may be stored not in conflict with Article III. All other rights to beneficial use of waters of the Colorado River System shall be satisfied solely from the water apportioned to that Basin in which they are situate.”

New Mexico’s Stephen Davis summed up the attitude of many of the commissioners when he declared “I will register my vote as a ‘yes’ on that article. I do it only because to my mind it is the least objectionable of the attempts that have been made to frame the idea expressed in it, and not because I approve it.” Before approving the compact, they made at least two more changes that morning. They agreed to drop the introductory sentence in Article III and they dropped the definition of “apportionment” in Article II. (Note: at some point they also changed the accounting year in III(d) from July 1 -June 30 to October 1- September 30, but there is no mention of it in the minutes.)

The Commission held one more meeting that afternoon, its 27^th formal meeting. It was mainly for housekeeping matters. They refused a request by Arizona’s Norviel to either support or not oppose the Girand Project that was then pending before the Federal Power Commission. Instead, they agreed that Hoover should send a letter asking that any future power permits be made subject to the compact. They then passed a resolution supporting the construction of a large dam on the Colorado River by the U. S. Government. The two actions were related. Hoover, Arthur Powell Davis, and McClure all opposed the Girand Project because they believed it would interfere with the proposed Boulder Canyon Project.

Reflecting on what they accomplished

Before ending the meeting, they took time to congratulate one another on what they had accomplished. On behalf of his fellow commissioners Delph Carpenter, who nearly three years ago had suggested a compact be negotiated, made the following remarks for the record.

We have about completed the task assigned to this commission, which is the first exemplification of interstate diplomacy in the history of the United States on so large a scale.

Carpenter went on to thank Hoover:

Our Chairman is due the great measure of credit for making possible this successful conclusion.

Hoover thanked all those present noting.

It has been one of the problems of more extreme complexity than will ever be appreciated by the outside world; and in the sense of service, and in the sense of restraint and in the willingness to compromise, it also has striking character. Had it not been for the character of the men who have been here, there would have been no compact.

Hoover went on to add that the “days of romance of the West are gone, and the job of western man is one of construction.” Adding, “It is possible this will standout as one of the landmarks of Western development.”

The commissioners then made the trek through the snow into Santa Fe where they signed the compact at the Palace of Governors.

By Eric Kuhn and John Fleck

It was snowing like crazy at Bishop’s Lodge outside Santa Fe as the Colorado River Commission Chairman Herbert Hoover called the 24^th meeting to order at 9:45 AM on the morning of Nov. 23, 1922. The Commission had only about 30 hours left before its Friday afternoon target for signing the compact and the “punch list” was long. Conceptually, the commissioners agreed on all of the compact’s major provisions, but drafting challenges remained.

They began with a discussion of “domestic.”  For the purposes of Articles III (e) and IV, rather than include a long list of water uses like mining, milling, manufacturing, and so on, they decided to define a broad group of uses as “domestic.” They could agree on what it didn’t include – it didn’t include agricultural, power generation, and navigation, so everything else would be domestic.  But it wasn’t that simple. What if a mine had its own hydroelectric power plant? Was that a mining or a power generation purpose?  They ended up agreeing to “The term ‘domestic use’ shall include the use of water for household, stock, municipal, mining, milling, industrial, and other like purposes, but shall exclude the generation of electrical power.”

The discussion then turned to Article III(d). Overnight Winfield Norviel had changed his mind. He was now OK with dropping the four million acre-feet minimum annual Lee Ferry flow requirement. It was one of many compromises Norviel had made during the negotiations, and it wouldn’t be his last.

The Commission then had a long and difficult conversation about Article IV, the priority of uses. The article had three paragraphs

• IV(a) was a statement that the Colorado River was no longer navigable, but with language added that if Congress did not agree, the “the other provisions of this compact shall nevertheless remain binding.”
• IV(b) made it clear power generation was a legal use but made it subservient to agricultural and domestic uses.
• IV(c) stated that this article did not apply to the internal appropriation, use, and distribution of water within a state.

Utah’s R.E. Caldwell was opposed to the provision protecting the compact if Congress didn’t accept the navigation clause. Although he understood the reason Hoover suggested including the provision, his concern was including the language would be giving Congress the opportunity to step in and interfere with water projects within states. Ultimately, Caldwell agreed that, despite his objections, he would not vote against “the pact.”

Similarly, Colorado’s Delph Carpenter wanted to expand paragraph IV©, but ultimately agreed to only minor wording changes.

By the end of the 24^th meeting, which lasted much of the day, their punch list has been whittled down to several minor wording changes and paragraph VIII. Hoover adjourned the meeting at 3 PM but asked the drafting committee to reconvene immediately. The 25^th meeting would convene at the Chairman’s call after the drafting committee had done its work.

Hoover called the 25^th meeting for 7:30 PM that evening. The Commission then went through a list of editing changes. Importantly, the Commission finally reached agreement on Article I, the purpose of the compact:

The major purposes of this compact are to provide for the equitable division and apportionment of the use of the waters of the Colorado River System; to establish the relative importance of different beneficial uses of water, to promote interstate comity; to remove causes of present and future controversies; and to secure the expeditious agricultural and industrial development of the Colorado River Basin, the storage of its waters, and the protection of life and property from floods. To these ends the Colorado River Basin is divided into two Basins, and an apportionment of the use of part of the water of the Colorado River System is made to each of them with the provision that further equitable apportionments may be made.

Turning to Article VIII, the commissioners and their advisors considered and debated 16 drafts before calling it a night without reaching a final agreement on the language.

They would have to meet again on Friday morning. There was more snow in the forecast.

By Eric Kuhn and John Fleck

When the Colorado River Compact Commission adjourned two days previously, on Nov. 20, 1922, two major Colorado River Compact issues had been left unresolved; the amount of water that would be apportioned to the Lower Basin and how the compact would address the need for storage to protect the Imperial Valley from flooding and stabilize river flows. The commission had also identified potential solutions to both.

The view from afar

Salt Lake Tribune, Nov. 22, 1922

The view from outside the tense, cloistered negotiations being held at Bishop’s Lodge outside Santa Fe remained optimistic. In a widely publicized telegram to President Warren G. Harding, Commission Chairman Herbert Hoover (who was then Harding’s Secretary of Commerce) described the unprecedented nature of the nearly completed task:

It is worthy of note that this is the first occasion when more than two states have come together under the direct provisions of the constitution established through this method the solution of interstate difficulties outside the courts.

But in a blunt case of dueling public telegrams, Arizona’s Governor-elect, George W. Hunt, warned that getting seven state buy in remained an uphill slog. Arizona, he wrote, would not sign onto a compact until its rights to water, and infrastructure, to meet the state’s ambitious irrigation plans were clarified.

Even as the negotiators closed in on a deal at Bishop’s Lodge, Hunt’s increasingly strident rhetoric made clear that what came after the negotiations would not be easy.

The Lower Basin’s extra million acre feet confirmed

The commissioners and their advisors had spent a busy Tuesday caucusing and having individual discussions about closing the deal and agreeing to a compact. They made considerable progress.

Hoover opened the 22^nd meeting with a discussion of Article III, the apportionment of the use of water between the two basins. Arizona’s Winfield Norviel had tentatively agreed to compromise alternative #4 from the solution list that Nevada’s James Scrugham had suggested. The Lower Basin would be given the rights to increase its uses by an additional one million acre-feet per year making its total apportionment 8.5 million acre-feet.

Hoover then took the commission through seven subparagraphs of Article III. In addition to a new Article III(b) providing the Lower Basin with the additional million acre-feet, the drafting committee had decided to change the language of Article III(a), instead of limiting appropriations, the compact would be apportioning beneficial consumptive use between the two basins. Hoover noted that because they couldn’t agree on a common definition of the word, they had decided to avoid using the term “appropriation” in the compact. Wyoming’s Frank Emerson had raised another concern, he wanted the compact written so that the common person could understand it.

Article III(a) apportions in perpetuity to each basin “for its exclusive use, 7,500,000 acre-feet per annum, which shall include all water necessary for the supply of any rights which may now exist.” Norviel asked why the division is being made between the two basins, not the two divisions. Hoover responded, “the division we confine purely to a political division and the basin to a physical division.”  Hoover then read Article III(b), “The lower basin is given the right to increase its beneficial consumptive use by the further quantity of one million acre-feet per annum.” The commissioners suggested several potential wording changes, but decided to agree to it for the moment, then come back to it for further wordsmithing.

Water for Mexico and the expectation of “surplus”

Moving on Hoover noted that the provision dealing with water for Mexico had been moved from a separate article (IV) to Article III(c), but the concept was the same.  Water for Mexico would first come from the surplus. If the surplus was insufficient, then the deficiency would be equally borne between the two basins and the States of the Upper Division would deliver one half of deficiency at Lee Ferry in addition to that provided in paragraph III(d). Again, individual commissioners made suggestions for wording changes, but the commission agreed to the paragraph in concept.

Article III(d) remained basically unchanged from previous drafts; the States of the Upper Division would not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75 million acre feet every ten years nor below a flow of four million acre-feet annually. At this point in drafting, the commission assumed that the water accounting year would run from July 1^st to June 30^th.

They then moved to Article III(e), which prohibited the States of the Upper Division from withholding and the States of the Lower Division from requiring the “delivery of water which cannot reasonably be applied to beneficial, agricultural, and domestic uses.” James Srcugham raised the question of how this applied to mining, milling, and such uses. Hoover suggested they deal with that in the definition of “domestic”

The remaining discussion focused on Articles III(f) and (g), the provisions setting out the details for the future apportionment of the surplus pool.  While several commissioners were confused by the initial wording, the concept was that under III(f) a further apportionment could be made of the water unapportioned by paragraphs III (a), (b), and (c) after July 1^st, 1968, and when either basin had reached the total beneficial consumptive use set out in III(a) and (b).  Paragraph III(g) provided that any two states or one state and the president of the United States could give notice to the other states to trigger the next apportionment round. The next agreement would also be subject to ratification by the legislatures of each state and Congress.

There was general agreement except for the date when the new apportionment round could be triggered.  Arizona’s Norviel wanted a shorter period, no more than 30 years. The upper river commissioners wanted a longer period.  They would end up compromising on a 40-year period.

Authors note: today given the reality that the flow of the river is much smaller than what was assumed in 1922, these two articles are almost never discussed, but to the commissioners that negotiated the compact in 1922 they were essential to the political compromises necessary for unanimous agreement on the compact, illustrating how important the overestimate of the river’s flow, discussed in our book Science Be Dammed, was to the negotiators’ ability to come to agreement.

Whither storage

With the caveat that more drafting was needed, Commission had reached agreement on Article III, a major accomplishment. The question of how deal with storage remained unsettled. Hoover planned to address this issue in the next meeting, their 23rd, scheduled for that afternoon. In the remaining morning session, Hoover turned to the issue of navigation and a provision proposed by his federal legal advisor, Attomar Hamele.

There was agreement in the room that the Colorado River was no longer navigable, and navigation should not interfere with other beneficial uses. But what if Congress did not agree? In fact, both Hoover and Hamele were predicting that many in Congress would not agree. Hoover’s solution was to suggest that if Congress did not agree, the remaining provisions of the compact would remain, and the pact would not have to be renegotiated. James Scrugham suggests a committee to draft such language.

Hamele suggested a compact provision that protects the rights of the United States. He pointed out that project works built and funded by the United States were the largest source of irrigation water in the basin and many more were being planned and that these projects needed full protection. If he had stopped there, he may have succeeded, but he went on to tell the commissioners that the United States also had a claim to the unnapropriated waters in the basin.  To that, all eight commissioners objected. After a difficult discussion, Hoover concluded “an expression reserving the unappropriated waters destroys the entire basis and sense and purpose of this whole commission.”  Nevada’s Srugham added that with such a provision none of the seven states would ratify the compact. The discussion ended.

After a long break, Hoover convened the 23^rd meeting at 3:45 PM. He immediately turned to the new Article VIII which he hoped would address the Californians need for a storage provision. After the meeting Hoover and McClure had convened with the Californians most had left Santa Fe angry and disgusted. Hoover, recognizing his mistake, convinced J. S. Nickerson, President of the Board of the Imperial Irrigation District to stay and assist McClure.

After a discussion and wordsmithing of the drafting committee’s proposal, Hoover read the proposed article VIII; “Present perfected rights to the beneficial use of the waters of the Colorado River System shall constitute the first charge upon the water hereby apportioned to that division of the basin in which they are situated.  All uses which may be perfected subsequent to the effective date of this compact shall be satisfied exclusively from the remaining water apportioned to that division of the basin in which they are situate and shall have no claim upon any part of the water apportioned to the other division of the basin. Whenever works of capacity sufficient to store 5,000,000 acre-feet of water have been constructed on the Colorado River within or for the benefit of the lower basin, any rights which the users of water in the lower basin may have against the users of water in the upper basin shall be satisfied thereafter from the waters so stored.”  The drafting committee had also proposed adding the remedies language to the end of paragraph VIII (combining paragraphs VIII and IX).

The commissioners, except New Mexico’s Steven Davis, were OK in concept, but thought the language was very confusing. The Commission would end up discussing numerous drafts before the article was finalized. Steven Davis, although appointed by Hoover to help with the drafting, was now an unwilling participant. He told the others he strenuously objected to the third sentence of the paragraph. Davis, a New Mexico Supreme Court Justice, found the legal logic flawed. If the concept was that perfected rights that existed before the compact could not be impacted by the compact, how could that same compact limit them by requiring that they be satisfied by future stored water? Davis added that he would not, however, vote against the article and interfere with the unanimous approval of the compact. Carpenter preferred the storage trigger be 1,000,000 not 5,000,000 acre-feet but understood the lower river would not go that low.

A 4 million acre foot flow minimum?

Recognizing that Article VIII needed more work, they went onto other matters including a broad discussion of article I, the purposes of the compact. Before they adjourned, Hoover raised the question of the four million acre-feet annual minimum annual flow under Article III(d). Now with Articles III(e) and VIII, was it still needed? Winfield Norviel responded that he was still in favor of it. Hoover then adjourned the meeting until Thursday at 9:30 AM, but requested the drafting committee continue their work in an evening session.