The roots of a coming Lake Powell Pipeline legal tangle

By Eric Kuhn

Location of Lower Colorado River Basin community of St. George, Utah

As Utah pushes forward with its proposed Lake Powell Pipeline – an attempt move over 80,000 acre feet per year of its Upper Colorado River Basin allocation to communities in the Lower Basin – it is worth revisiting one of the critical legal milestones in the evolution of what we have come to call “the Law of the River.”

The division of the great river’s watershed into an “Upper Basin” and “Lower Basin”, with separate water allocations to each, was the masterstroke that allowed the successful completion of the Colorado River Compact in 1922. But the details of how that separation plays out in water management today were not solidified until a little-discussed U.S. Supreme Court ruling in 1955, in the early years of the decade-long legal struggle known as “Arizona v. California.”

Most, if not all, of the small army of lawyers, engineers, water managers, board members, academics, tribal officials, NGO representatives, and journalists now actively engaged in Colorado River issues are familiar with the 1963 Arizona v. California Supreme Court decision. It was Arizona’s great legal victory over California that cleared the road for the Congressional authorization and construction of the Central Arizona Project (CAP).  Many in the ranks are also quite familiar with Simon H. Rifkind, the court-appointed Special Master who conducted lengthy hearings and worked his way through a mountain of case briefs and exhibits before writing his 1960 master’s report that set the stage for the court’s decision. Few of us, however, are familiar with George I. Haight. Haight was the first special master in the case, appointed on June 1st, 1954.  He died unexpectedly in late July 1955.  Two weeks before his death he made a critical decision that was upheld by the Supreme Court and set the basic direction of the case. Today, as the basin grapples with climate change, shortages, declining reservoir levels, and most recently, Utah’s quest to build the Lake Powell Pipeline exporting a portion of its Upper Basin water to the Lower Basin to meet future needs in the St. George area, Haight’s forgotten opinion looms large.

In late 1952 when Arizona filed the case, it was about disputed issues over the interpretation of both the Colorado River Compact and the Boulder Canyon Project Act. Among its claims for relief, Arizona asked the court to find that it was entitled to 3.8 million acre-feet under Articles III(a) & (b) of the compact (less a small amount for Lower Basin uses by New Mexico in the Gila River and Utah in the Virgin River drainages), that under the Boulder Canyon Project Act California was strictly limited to 4.4 million acre-feet per year, that its “stream depletion” theory of measuring compact apportionments be approved, and that evaporation off Lake Mead be assigned to each Lower Division state in proportion to their benefits from Lake Mead.  California, of course, vigorously opposed Arizona’s claims.  One of California’s first moves was to file a motion with Haight to bring into the case as “indispensable” parties the Upper Division states; Colorado, New Mexico, Utah, and Wyoming. California’s logic was that the compact issues raised by Arizona impacted both basins and every basin state (history has shown California was right on).

The Upper Division states were desperately opposed to participating in the case.  Backing the clock up to the early 1950s, these states, including Arizona, had successfully negotiated, ratified, and obtained Congressional approval for the Upper Colorado River Basin Compact. They were now actively seeking Congressional legislation for the Colorado River Storage Project Act (CRSPA), the federal law that would authorize Glen Canyon Dam (Lake Powell) and numerous other Upper Basin projects.  Upper Basin officials feared that if they became actively involved in Arizona v. California, California’s powerful Congressional delegation would use it as an excuse to delay approval of CRSPA (as it had successfully done with the CAP). Thus, these states and their close ally, Arizona, opposed California’s motion.

The basis of their opposition was relatively simple; Under the compact, except for the Upper Basin’s obligations at Lee Ferry, the basins were separate hydrologic entities, the issues raised by Arizona were solely Lower Basin matters, and that Arizona was asking for nothing from the Upper Division states.  Their strategy worked. In a July 11, 1955 opinion, Haight recommended California’s motion be denied. By a 5-3 decision, the Supreme Court upheld his recommendation and, except for Utah and New Mexico as to their Lower Basin interests only, the Upper Division states were out of the case.  The Upper Division states cheered the decision.  Arizona’s crafty Mark Wilmer devised a new litigation strategy built on Haight’s logic and ultimately Haight’s successor, Simon Rifkind, ruled that there was no need to decide any issue related to the compact. For more details, see Science Be Dammed, Chapter 15.

In convincing Special Master Haight to deny California’s motion, Arizona and the Upper Division states turned him into an ardent fan of the Colorado River Compact. Haight opined “The compact followed years of controversy between the states involved. It was an act seemingly based on thorough knowledge by the negotiators. It must have been difficult of accomplishment. It was the product of real statesmanship.” In justifying his decision, he found “The Colorado River Compact evidences far seeing practical statesmanship. The division of the Colorado River System waters into Upper and Lower Basins was, and is, one of its most important features. It left to each Basin the solution to that Basin’s problems and did not tie to either Basin the intra-basin problems of the other.”  A few pages later, he says “The Compact, by its terms, provides two separate groups in the Colorado River Basin. Each of these is independent in its sphere. The members of each group make the determinations respecting that group’s problems,”  and finally “because by Article III of the Colorado River Compact there was apportioned to each basin a given amount of water, and it is impossible for the Upper Basin States to have any interest in water allocated to the Lower Basin States.”

Fifty five years later, how would Special Master Haight view the problems the Colorado River Basin is facing where climate change is impacting the water available to both basins, through the coordinated operation of Lakes Mead and Powell the basin’s drought contingency plans are interconnected, critical environmental resources in the Grand Canyon, located in the Lower Basin, are impacted by the Upper Basin’s Glen Canyon Dam, and most recently two states, New Mexico and Utah, have found it desirable to use a portion of each’s Upper Basin water in the Lower Basin?  With one major exception, I think he would be pleased. Haight understood that through Article VI, the compact parties had a path to resolve their disputes and implement creative solutions. The first part of Article VI sets forth a formal approach where each state governor appoints a commissioner, the commissioners meet and negotiate a solution to the issue at hand and then take the solution back to their states for legislative ratification. This formal process has never been used, but luckily, Article VI also provides an alternative. The last sentence states “nothing herein contained shall prevent the adjustment of any such claim or controversy by any present method or by direct future legislative action of the interested states.”  After Arizona refused to ratify the compact in the 1920s Colorado’s Delph Carpenter successfully used federal legislation to implement a six-state ratification strategy (the Boulder Canyon Project Act).

The exception that would concern Haight is Utah’s unilateral decision to transfer about 80,000 acre-feet of its Upper Basin water to the Lower Basin via the Lake Powell Pipeline. The LPP violates the basic rationale that Haight used to keep the Upper Basin out of Arizona v. California and for which Utah and its sister Upper Division states fought so hard.  The project uses water apportioned for exclusive use in the Upper Basin, terms carefully defined by the compact negotiators, to solve a water supply problem in the Lower Basin.

Defenders of Utah’s may believe a precedent has already been set– the Navajo-Gallup Pipeline, which delivers 7,500 acre-feet of New Mexico’s Upper Basin water to the community of Gallup and areas of the eastern Navajo Nation. But if that is to be cited as a precedent, it comes with an important caveat. New Mexico addressed the compact issues through federal legislation with the participation and consent of the other basin states and stakeholders. Utah, by comparison, apparently believes federal legislation, and by implication the consent of others in the basin, is not needed.

In the face of climate change induced declining river flows and increased competition for the river’s water, there is no question that the basic compact ground rules devised by the negotiators a century ago will face increasing pressure.  There will likely be more future projects and decisions that, like the LPP, will challenge the strict language of the compact. The question now facing the basin is how will this revisiting be accomplished? Will it be done in an open and transparent manner that engages not just the states, but a broad range of stakeholders and implemented through legislation (not easy in today’s world, as a practical matter it requires no opposition from any major party to get through the Senate) or by a series of unilateral decisions designed to benefit or advantage individual states or specific entities, but with no input or buy-in from the basin as a whole?

8 Comments

  1. There is no “need” of water in St. George. The area has become popular and business interests believe they can profit from more development; but that development would require additional water.
    The area receives less than 2″ of rain a year. Summer temperatures can be over 100 degrees. Both of these figures will become even worse with global warming. Additional development will add to the global warming and air conditioning of buildings is on the rise.
    The Colorado river is already in a state of overuse. Allocations to the basin states need to adjusted for actual water availability which will decrease in time.
    Another case of a complete disregard for the facts of the world we live in for the self enrichment a just a few people. Which is why we are in the fix we are in.

  2. The Lake Powell Pipeline DEIS document, released 10 days ago, has 1 page of financial info about the cost of the project. Out of 2,000 pages! No transparency, no details, an expenditure of $2 billion dollars! We will not stand for it. It is an illegal project, with corrupt and conflicting data.. In the worst economy in 90 years, Utah LPP proponents would spend an additional $2Billion. Insanity and greed and, there is no need.

  3. Thank you Eric. Your insights are always valuable and your scholarship is always appreciated.

    Whether the LPP is a good way for Utah to use its water is a separate matter from the discussion here. Laying that aside, here are a few ideas aimed at providing additional perspective.

    The U.S. Supreme Court decided that Colorado and Wyoming did not have to participate in Arizona v. California, but it is a stretch to infer that this limits how a state can use its apportioned water within that state.

    The Navajo-Gallup Water Supply Project in New Mexico required federal legislation because it was part of an Indian water rights settlement, not necessarily because it will carry water from an Upper Basin watershed to a Lower Basin watershed.

    We are at the point where any water development in an Upper Basin state puts water users in all the Upper Basin states at greater risk. Thus, it is tempting for water managers in Upper Basin states outside of Utah to join some of their colleagues in Lower Basin states in trying to limit water development in Utah where possible.

    Any such effort by state water managers in either basin may be damaging to themselves in the long run. The state commissioners in the Colorado River Compact negotiations – particularly Delph Carpenter of Colorado – were ardent supporters of states having control of how water is used within their state boundaries. In Article IV of the compact, concerning purposes of use, they ended with “The provisions of this article shall not apply to or interfere with the regulation and control by any State within its boundaries of the appropriation, use, and distribution of water.” A generation later, the commissioners for the Upper Colorado River Basin Compact negotiations made a broader statement: “The provisions of this Compact shall not apply to or interfere with the right or power of any signatory State to regulate within its boundaries the appropriation, use and control of water, the consumptive use of which is apportioned and available to such State by this Compact.” This position – that states have autonomy and sovereignty with intrastate water use – would be compromised if today’s water managers decide they have the authority to tell Utah how it can or cannot use its apportioned water within its own boundaries.

    Using a strict interpretation of the definitions given in the Colorado River Compact, one can follow a particular chain of logic in the compact to declare that a state can divert water out of the Upper Basin to any other watershed it wants, unless that watershed happens to be in the Lower Basin and then it cannot do so. This incredible position was never discussed in the Colorado River Compact negotiations and, given the commissioners’ feelings on state autonomy, is likely an unintended and unimagined oversight concerning all the possible interpretations of their document.

  4. I agree that the commissioners from the Upper Division States have a strong political and equity argument that a state should have the right to use water available to it under an inter-state decree or compact anywhere within that state. My concern (and hope) is that they look at the long-term consequences of a strategy that ignores the plain meaning of the compact and the pretty clear intent of the compact negotiators (22 & 48). I have no doubt that if each of the commissioners that negotiated the 48 compact was asked if water apportioned for exclusive use in the Upper Basin (as defined by the 22 compact) could be used in the Lower Basin the answer would be “absolutely not.” Unfortunately the definition allows Provo, Denver, and Albuquerque to be in the UB – because they use CR water and are “without” the drainage area of the Colorado River System, but not St. George (it’s within). It’s similar to Arizona’s argument that its uses from the Gila River are no longer covered by the 22 compact – it’s a good policy for AZ (and if repeated often and loudly people will begin to believe it), but clearly not what the 22 compact says and the negotiators intended. Another example is how evaporation on Lakes Mead, Mojave, & Havasu is treated. If not careful the UB will find itself under a 22 compact where only two provisions are enforceable – Article III (c) & (d), the 75 MAF/10 and Mexican Treaty obligations- At that point climate change continues to squeeze the UB’s yield down to nothing but perhaps the water available to the pre-compact rights – not a pretty future for the UB.

  5. Per our discussion at CRWUA, I am concerned that Arizona may try to use this same logic to use its Upper Basin allocation in the Lower Basin, something the Navajo Nation cannot allow. Let’s stay in touch at this. Email me at smpollack@nndoj.org

    Thanks

  6. Eric, thanks for your insight.

    I agree with DamFull that it is a stretch to infer limits on how a state can use its apportioned water within that state based on the Supreme Court’s ruling on the participation of Colorado and Wyoming.

    DamFull’s position that states have complete autonomy and sovereignty on the use of intrastate water is unsupported by the Law of the River.

    Interbasin transfer requires an act of Congress based on the plain language of Article VIII of the Colorado River Compact. This provision mandates that “beneficial use of waters of the Colorado River System shall be satisfied solely from the water apportioned to that Basin in which they are situated.” Congress would need to step in if a state wants to use water in a way that is inconsistent with Article VIII.

    DamFull cites Article IV of the 1922 Compact as evidence that the agreement was meant to give states autonomy and sovereignty on intrastate water use. Article IV states that “The provisions of this article shall not apply to or interfere with the regulation and control by any State within its boundaries of the appropriation, use, and distribution of water” (emphasis added). This statement simply clarifies that the other two Article IV provisions relating to types of use are not intended to interfere with rights that states may have in regulating water. It does not give a state the authority to regulate water in a way that is inconsistent with Article VIII.

    DamFull cites Article XV of the Upper Colorado River Basin Compact of 1948, which states that “[t]he provisions of this Compact shall not apply to or interfere with the right or power of any signatory State to regulate within its boundaries the appropriation, use and control of water, the consumptive use of which is apportioned and available to such State by this Compact” (emphasis added). This statement expresses an intent of the 1948 Compact to not interfere with other rights that states may have to regulate intrastate water. It does not override or even apply to provisions in other agreements such as Article VIII of the 1922 Compact.

    The plain language of Article VIII means that Congressional action is required for interbasin transfer. The statements cited by DamFull have limited applicability and do not grant states complete autonomy and sovereignty on intrastate water use.

  7. Abe – I was not suggesting that the Supreme Court’s decision to affirm the special master’s decision to keep Colorado and Wyoming out of the case decided this issue. I was using the special master’s decision to show how the Upper Division states, including Utah, viewed the question of whether or not water apportioned for exclusive use in the UB could be transferred for use in the LB as of the early 1950s. Based on the case they presented, the answer was not only no, but HELL NO! I believe the use of water apportioned to the UB in the LB is nothing more than a change to the compact increasing the LB’s apportionment and decreasing the UB’s apportionment (without a formal change to the compact). It’s also probably very generous of me to suggest that our predecessors would have been OK going to Congress to approve such a transfer under the rubric of Article VI. Eric

  8. DamFull’s assertion that the federal legislation was required for the Navajo-Gallup Water Supply Project to make the inter-basin transfer only because it was part of an Indian water rights settlement misses the mark. Indian water rights settlements require congressional approval because they do three things: (1) authorize the Secretary to execute the settlement agreement, (2) authorize the compromise of tribal water rights which arguably cannot be accomplished without congressional approval because of the Non-Intercourse Act, and (3) authorize the expenditure of federal funds. These three objectives are all embedded in Part IV of Subtitle B—Northwestern New Mexico Rural Water Projects in New Mexico, a part of P.L. 111-11. Part IV contains the provisions relating to Navajo Nation Water Rights. In contrast, the authorization to use Upper Basin water in the Lower Basin is found at Section 10603 of Part III, the provisions relating to the Navajo Gallup Water Supply Project. Significantly, subsection (i) notes the unique circumstances of the location of the Navajo Nation in both the Upper and Lower Basin and subsection (j) notes the consensus of the seven basin states to the use of this water. Concurrence of the governors of the seven basin states was not necessary to settle the water rights of the Navajo Nation but because the use of Upper Basin water in the Lower Basin was so fundamentally anathema to the terms of the compacts.

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