What the Everyone Else in the Colorado River Basin v. Central Arizona Project fracas is really all about

It’s reasonable to ask whether the fracas over Colorado River water management, which has pitted the Central Arizona Project against just about everyone else in the basin, is evidence that the thesis of my book – that we are in an era of unprecedented collaboration in Colorado River governance, that water is not really for fighting over – was wrong.

Lake Havasu and the Colorado River, courtesy Library of Congress

I think it’s the opposite. There would have been a time when it would have simply been assumed that of course the Central Arizona Project would optimize its water orders (a smart friend has steered me away from some of the more incendiary language I had used – “manipulated” or “gamed”) to maximize releases from Lake Powell. The uproar this month is striking precisely because the uproar is happening at all – that in a new era of collaboration, what CAP was doing is an offense to a new cooperative, collaborative norm.

In the “Contemporary Issues In Water Management” class we co-teach (still accepting applications for fall 2018!), my faculty colleague Bob Berrens spends a good deal of time helping students understand a subtle definition of what we mean by “institutions”:

Institutions: The rules, both formal and informal, that both liberate and constrain behavior in repeated choice interactions.

It was a bit of a challenge for me initially to get my head around this when Bob and I began teaching together five years ago, but our ongoing conversation about this issue in the end provided a key piece of the intellectual infrastructure for my book Water is for Fighting Over: and Other Myths about Water in the West.

Claudia Williamson does a nice job of summarizing the thing in this 2009 paper (for “development” in her sentence below, substitute “successful Colorado River Basin water management”):

Formal institutions represent government defined and enforced constraints while informal institutions capture private constraints. The findings suggest that the presence of informal institutions is a strong determinant of development. In contrast, formal institutions are only successful when embedded in informal constraints.

Central to my book’s myth-busting argument (Water! For Not Fighting Over!) is the evolution in the Colorado River Basin of institutions along two parallel and simultaneous paths. On the formal path, the “government defined and enforced constraints”, you’ll find the big written rule sets developed over the last two decades – the 2001 Interim Surplus Guidelines and the 2007 Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead. They were the first two major pieces added to the “Law of the River” since 1968, and they grew out of a process of collaboration and compromise. In parallel to that we have the evolution of what in Bob’s framework we describe as informal rules – norms of behavior that have come to be viewed as the way problems are now solved in the Colorado River Basin. They involve collaboration and effort at shared problem solving – crucial informal norms that allowed the more formal rule sets to be developed.

This is the key to understanding the letter representatives of the Upper Basin states sent to Arizona two weeks ago, triggering the fracas:

This is why pretty much everyone in the basin, including folks in California and Nevada as well as many within Arizona itself, have lined up against the Central Arizona Project’s position on this issue – because CAP’s brazenly public endorsement and defense of a process of managing water orders to maximize releases from Lake Powell, while within the formal rules, violated widely held informal norms of collaboration on efforts to solve the Colorado River’s problems.

Here’s University of Colorado Boulder Colorado Basin scholar Doug Kenney’s explanation in a piece by Luke Runyon and Bret Jasper:

“The [enforcement] mechanism is usually a social mechanism,” Kenney says. “And the mechanism is all of the other parties get in your face and say, ‘Hey, come on. This isn’t really the spirit of what we’re doing here, let’s get back to working cooperatively.’”

Faces will be gotten into next week at a meeting of Arizona and Upper Basin folks in Salt Lake City.

3 Comments

  1. I have worked with citizen-based watershed groups for a couple decades. Your basic thesis rings true to me.

    “The [enforcement] mechanism is usually a social mechanism…”

    “Community” involves overlapping interests. Within a “community” forum — and if people speak for themselves (in public) — then those speakers can be constrained by shame. I hate to cast it in negative terms like this, but I think this is the prevailing mechanism for smaller groups to progress, at least over their most difficult issues.

    Values aren’t very negotiable. But community shame can can sure temper one’s enthusiasm for advocating shameful values.

    On the other hand, when the speakers become representatives of a larger group, they (and their paycheck) can withstand some shame. I think it’s difficult to move small-group collaborative processes to larger venues involving representatives. My hat’s off to those involved in the subject Basin “institutions” for trying.

  2. One of the most interesting ideas you discuss in your book is the application of Elinor Ostrom’s economic theories to water management in the southwest. Her idea that there is an alternative to the government regulation versus private property/free markets approach to managing common pool resources is insightful and won her the Nobel Prize in economics. One of the advantages to her collective decision making model is that all parties are vested in the outcomes; because they were engaged in making the rules for management of the resource, they feel responsible for enforcement and for ensuring good outcomes. We have seen this model work well for southwestern rivers and groundwater basins. Perhaps you are right that the rules on the Colorado River are evolving from a rational self interest approach to a collaborative mutual benefit approach.
    This bodes well for the health of the river and our ability to solve problems for the benefit of the over 40 million people who depend on the river.

    However, one of the disadvantages to the collective decision making model is the “bully problem.” Often, there is an imbalance of power between the parties negotiating the rules. If this is the case, the rules can favor the bully or the party with more power. Perhaps the fracas on the Colorado River system is to some degree a result of this bully problem? Shortages on the lower Colorado River are not shared equitably as a percentage based on each state’s allocation. In fact, under the 2007 Guidelines, Arizona is facing a risk of losing 480,000 acre-feet of its 2.8 MAF entitlement, Nevada’s risk is 20,000 acre-feet of its .3 MAF entitlement, and California’s risk is zero acre-feet of its 4.4 MAF entitlement. Under the draft Drought Contingency Plan, the risk of loss increases to 720,000 acre-feet for Arizona, 30,000 acre-feet for Nevada, and 350,000 acre-feet for California.

    What accounts for this imbalance in the sharing of the risks of shortage? What behaviors might you expect from rational actors in such a system? If you removed power dynamics from the equation and designed a system to manage water shortages on a variable system such as the Colorado River, you might design something more like the Upper Basin system – where shortages are shared based on a percentage of each state’s allocation. But the Law of the River is the law, and every state can point to wins and losses. We simply can’t revisit everything that was decided in the last century. Nevertheless, we should not be surprised when the entities or stakeholders who bare an exponentially greater risk of shortage act to prevent or mitigate the harm from that risk.

    How much money should be spent on paying those with water rights not to use their water and who should pay for it? In many cases, taxpayers and water users in local jurisdictions are funding a portion of the annual compensated conservation to remedy water scarcity in each state. People would understandably be concerned if their money is being used to fund conservation that increases the likelihood of shortage (based on the mathematical formulas set forth in the Guidelines for determining releases from Lake Powell to Lake Mead) and triggers significant negative economic consequences in their region. For example, in Arizona, a farmer, a homebuilder or a homeowner might be asked to help pay for a tribe to leave its water in Lake Mead. This conservation in Lake Mead would benefit the river system overall, but it might result in less water being released from Lake Powell and therefore trigger a Tier 1 shortage, which would cut the farmer’s and the homebuilder’s water supply, and might put the homeowner out of a job. In fact, taxpayers and water users in Arizona might feel that their elected representatives are acting irresponsibly if their money is used to fund something that actually causes rather than prevents shortage in their region. And the cost of funding 480,000 acre-feet of conservation is much greater than the cost of funding 20,000 or zero; the impacts to the local economy are much greater when the risk is exponentially higher.

    Furthermore, we must ask what is the problem that we are trying to solve? If we are trying to reduce the structural deficit (over-allocation of the Colorado River supply), the solution and strategy may look different than if we are trying to avoid triggering shortage at Lake Mead. The relative good of the strategy must be viewed in light of the articulated goal. When you consider the costs and quantities at risk, put a human face on the impacts of shortage, and take into account the goal of avoiding shortage at Lake Mead, Central Arizona Project’s desire for a more flexible approach to system conservation, that considers risks, costs, and variations in hydrology, sounds a lot more like wise water management than ‘manipulation of demands’ or ‘gaming the system.’ Couple that with the DCP like quantities (over 300,000 acre feet per year) of uncompensated conservation that CAP and its partners have been voluntarily leaving in Lake Mead each year to prevent shortage, and you might see entities that are putting forth real wet water for conservation instead of bad actors.

    If there is one thing that is certain, it is that people will fight for their water. Perhaps if we could get away from pointing fingers and turning people or entities that we must work with for the common good into our enemies, we’ll be able to find collaborative, innovative solutions to the water scarcity and drought facing our region. Maybe we could approach water issues with more humility, worrying less about being right and more about listening to the real concerns of our fellow water users, focusing on problem solving and best outcomes. I hope that we do because the elephants in the room just seem to get bigger while we are running circles around the mice.

  3. Pingback: Some helpful context for understanding the Central Arizona Project managers' decisions in current Colorado River governance scrap - jfleck at inkstain

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