Arizona’s 50,000 acre-feet of Upper Basin water has always been destined for tribal use

Eric Kuhn, Rin Tara, John Fleck

The pending Northeastern Arizona Indian Water Rights Settlement Agreement settles Navajo Nation, Hopi Tribe, and San Juan Southern Paiute Tribe claims to the Upper Colorado River Basin in Arizona. To do so, Arizona’s 50,000 AF entitlement of Upper Colorado River Basin water will be allocated.

Although Arizona’s testimony during the ratification of the 1948 Upper Colorado River Basin Compact indicated that Arizona’s cut would be used for tribes, Arizona fashioned the deal to benefit the Central Arizona Project. Charles A. Carson, Arizona’s Upper Basin Compact Commissioner, originally requested 136,200 AF/yr for Arizona in the negotiation but ultimately accepted 50,000 AF/yr in the interest of sweetening the deal for the rest of the states to sign on to stream depletion theory as the means for measuring system use. Stream depletion theory, under Arizona’s interpretation of the 1922 Colorado River Compact allowed Arizona to consume two million acre-feet per year on the Gila River system, while only being charged for one million acre-feet of compact apportionment.

This theory, in combination with the Upper Basin relationships strengthened by Carson’s choice to accept only 50,000 AF/yr, is what Carson envisioned would be used to convince Congress Arizona had a sufficient legal water supply for the Central Arizona Project. The CAP project was approved in 1968 and completed in the 1990s, though tribal water in Arizona’s northeast corner was not quantified. Even after CAP was built, a portion of the power generated at Navajo Generating Station, which consumed a significant portion of that 50,000 AF/yr apportion, powered the pumps that transported CAP water from Lake Havasu to central Arizona.

Eight decades after Arizona acknowledged that the 50,000 AF of Upper Colorado River Basin water was destined for tribes, Congress is on the cusp of approving the settlement that would resolve some water rights for Navajo Nation, Hopi Tribe, and San Juan Southern Paiute Tribe. This settlement is critical and long overdue, especially considering Arizona’s acknowledgement of tribal entitlement in the 1940s.

The “backstory” behind Arizona’s 50,000 acre-feet of Upper Basin water.

At the recent Water Education Foundation Colorado River meeting in Santa Fe, we heard an update on the status of Congressional approval of the water rights settlement among Arizona the Navajo, San Juan Southern Paiute and Hopi nations.  Among other things, the settlement divides up the use of the 50,000 acre-feet of water apportioned to Arizona by the 1948 Upper Colorado River Basin compact.  How Arizona ended up with 50,000 acre-feet of Upper Basin water is a fascinating story. At first blush, it may seem somewhat arbitrary, but the reality is that it was based on a well-conceived and executed strategy by Arizona’s negotiators At the time, the deal was cut, Arizona’s negotiator made clear that the only likely users of the water would be Native American communities in northeast Arizona. The deal was not designed for their benefit, but rather for the ultimate benefit of Arizona’s quest to build the Central Arizona Project.

While Arizona’s motives may have focused entirely on cutting an interstate deal to enable construction of the CAP, the state’s leadership were frank in acknowledging that the only people who might put Arizona’s Upper Basin allotment to use where Native Americans.

“There is not much possibility of using water on that land except … on the Navajo Reservation,” Arizona’s Charles A. Carson told members of Congress during the 1949 Upper Basin Compact hearings.

The 1922 Colorado River Compact divides the basin into two sub-basins: the Upper Basin and the Lower Basin. The dividing point is Lee Ferry, located in Northern Arizona, a mile downstream of the confluence of the Colorado and Paria Rivers. Lands that drain into the Colorado River above Lee Ferry are in the Upper Basin, including about 7,000 square miles of lands in northeastern Arizona. Today all but a small portion of these lands are located on the Navajo reservation. Likewise, both Utah and New Mexico have lands that drain into the river below Lee Ferry. The Upper Gila River in New Mexico and Kanab Creek and the Virgin River in Utah are Lower Basin streams.

Although Arizona has lands in the Upper Basin, it is not a State of the Upper Division, a critically important distinction under the 1922 Compact. As a state with Upper Basin lands, Arizona in entitled to use some portion of the beneficial consumptive use apportioned to the Upper Basin under Article III(a) of the 1922 Compact, but since it is not a State of the Upper Division, it does not share in the joint obligations of the Upper Division States to provide certain flows at Lee Ferry under Articles III(c) and III(d). This is a nuance the negotiators of the 1948 Upper Basin Compact understood from the get-go (UCRBCC Official Record, 1st meeting, pages 25-26).

Arizona’s Upper Basin Compact Commissioner was Charles A. Carson. He was the state’s special counsel for Colorado River matters. Carson, an accomplished lawyer and skilled negotiator, began representing Arizona in the mid-1930s. By the 1940s, Arizona’s top water priority was obtaining Congressional approval of the Central Arizona Project (CAP). Carson negotiated the 1944 contract between Arizona and the United States for 2.8 million acre-feet of Hoover Dam water. He orchestrated his state legislature’s ratification of the Colorado River Compact a few weeks later. In 1945 he chaired the legal sub-committee of the Six-State Committee that successfully lobbied for Senate ratification of the 1944 Water Treaty with Mexico. During this time, he became a close associate and friend of Colorado’s Clifford Stone and Royce Tipton. Stone was Colorado’s Upper Basin Compact Commissioner, its first Executive Director of the Colorado Water Conservation Board, and the long-time chair of the Committee of Fourteen that advised the U.S. State Department on the treaty negotiation with Mexico. Tipton was a consulting engineer that worked for Colorado on four major interstate compacts. He was an engineering consultant to the State Department during the negotiations of the 1944 Treaty. With Stone’s blessing, Carson hired Tipton to help with Arizona’s efforts to advance the Congressional approval of the CAP.

Carson’s appointment as Arizona’s Upper Basin Compact Commissioner was likely welcomed by the negotiating teams from the other states. He was designated as Chair of the Commission’s Legal Committee, which would ultimately make numerous recommendations to the Commission on the language and structure of the Upper Basin Compact. Among the many important recommendations the legal committee made were the decisions to include the water requirements of the Upper Basin’s tribes within the apportionments made to each individual state (rejecting an option by New Mexico to consider the tribal needs as a “sixth state”) and the language of Article IV which prescribes how the UCRC will determine the timing and amount and distribute among each Upper Division State a curtailment (aka – “compact call”), if necessary to be in compliance with 1922 Compact.

Carson first spelled out what Arizona wanted from an Upper Basin Compact during the second meeting of the Upper Basin Compact Commission in September 1946, almost two full years before the other four (?) states put their cards on the table during the marathon seventh meeting in July 1948. Carson suggested Arizona be apportioned “all of the waters (on its Upper Basin lands) precipitated thereto, and in addition thereto, 1000 acre-feet from the Paria River” (Official Record, 2nd meeting, page 4). When the other states were finally ready to negotiate the allocations (Colorado had insisted that the Commission not address this core issue until the Engineering Committee had completed its report), Carson reiterated his request–Arizona wanted the right to use all the water that fell on its lands as precipitation plus an additional thousand acre-feet from the Paria River. Now that the Engineering Committee had completed its report, this number was now quantified–136,200 acre-feet (Official Record, 7th Meeting, page 69). According to the Engineering Committee, these 136,200 acre-feet represented 0.87% of the natural (virgin) flow at Lee Ferry (Official Record, 7th Meeting, page 22). This number may seem very high based on our recent experience, but it was the number the Commission had in front of it and in the 1940s the estimated natural flow of the river at Lee Ferry was about 16 million acre-feet per year.

The problem facing the Commission was that collectively the states had requested a total of 117% of the available water. Since Arizona had requested a fixed amount, the problem was with the four Upper Division States, but that did not prevent the other states from suggesting that Arizona consider taking less. Wyoming’s legal advisor Bill Wehrli asked Carson if Arizona would accept an apportionment of 49,200 acre-feet. Carson responded, “I am willing to do that in order to try to help make a compact.” Interestingly, Wehrli responded, “we would be willing to be a little more generous and give you one percent” (7th meeting, page 109). The 49,200 acre-feet referenced by Wehrli was taken from the 1947 comprehensive basin report prepared by the Bureau of Reclamation. The report included very little detailed backup information. Although no tribal members were consulted or invited to the negotiations, the Office of Indian Affairs (now the BIA) provided some input to the Commission on tribal needs. It suggested that present and future depletions from tribal use on Arizona’s Upper Basin lands would total about 25,000 acre-feet per year but cautioned that this estimate was preliminary (Official Record, 5th Meeting, pages 49-51).

When the dust settled, Carson accepted a fixed 50,000 acre-feet per year, only 37% of Arizona’s contribution to the flow of the river at Lee Ferry. The only other state that accepted an apportionment smaller than its contribution was Colorado. It produces 70% of the river’s flow at Lee Ferry but accepted a 51.75% apportionment (~72% of its contribution). In contrast, New Mexico which contributes only 1.6% of the river’s flow, got an apportionment of 11.25%. What made Arizona happy was the package deal that accompanied the agreement on the state apportionments. The three other Upper Division States accepted a proposal by Colorado and Arizona that apportionments be measured by the stream depletion theory. Under the stream depletion theory, the Upper Basin’s compact apportionment is measured as the net impact of man-made depletions on the natural flow of the Colorado River at Lee Ferry. The agreement on the stream depletion theory was made a part of Article VI of the Upper Basin Compact. Article VI is applicable to the Upper Basin only, but Upper Basin officials, including Stone and Tipton, would later testify before Congressional committees that it was their opinion that the Lower Basin’s 1922 Compact apportionment was supposed to be measured as the net impact of the Lower Basin’s man-made depletions on the natural flow of the Colorado River at the international boundary with Mexico.

Why was adoption of the stream depletion theory an important victory for Arizona? Simply put, under Arizona’s interpretation of the 1922 Compact at the time, using the stream depletion theory, Arizona’s could consume two million acre-feet per year on the Gila River system, but only be charged for one million acre-feet of compact apportionment. In its natural state, the Gila River loses an average of one million acre-feet per year as it flows from the Phoenix area to its confluence with the Colorado River at Yuma. Under the stream depletion theory, the net impact of consuming two million acre-feet per year of Gila system on the natural flow of the Colorado River was only a million acre-feet. If Arizona was going to be limited under the 1922 Compact to the use of about 3.8 million acre-feet (2.8 million under its Boulder Canyon Project Act allocation plus all one million acre-feet of III(b) water (less a small amount set aside for Utah and New Mexico), using the stream depletion theory freed up a million acre-feet that the CAP could pump from Lake Havasu to Central Arizona.

California, of course, had a different theory on how 1922 Compact apportionments were supposed to be measured. It advocated for the “diversions minus return flows” theory. Under this theory, all two million acre-feet of Arizona’s Gila River use would be charged to Arizona as compact apportionment. Under this method, the water available for the CAP would be a million acre-feet less, likely making the project economically unfeasible. For more details on the different theories and why Colorado believed the stream depletion theory benefited the Upper Basin, see Science Be Dammed chapter 12.

During the negotiations of the Upper Basin Compact, Wyoming had initially opposed using the stream depletion theory. Speaking for its delegation, Wehrli questioned the basic legal assumption that the 1922 Compact apportioned depletions, noting that California’s legal argument had merit. He concluded that stream depletion theory benefited the Lower Basin more than the Upper Basin and he stated, “Wyoming is desirous of staying completely out of the controversy between Arizona and California, Lower Basin States” (Official Record, 7th Meeting, pages 58-60). To reach a final compact agreement, Wyoming ultimately accepted the stream depletion theory, but unlike Colorado, it never championed it in Congressional testimony or court filings. Note, with perfect hindsight, Wehrli was mostly right, but also note that the question of how to measure apportionments under the 1922 Compact has never been resolved.

What Carson accomplished by accepting a small apportionment was to strengthen the close working relationship between his state and the four States of the Upper Division. It’s apparent that Carson believed that this relationship would help Arizona in its battle with California over the Congressional authorization of the CAP. In his compact report to the Governor, Carson writes that his engineers and the Indian Service believed that Arizona would never use more than about 30,000 acre-feet per year on its Upper Basin lands and therefore Arizona received 50,000 acre-feet as a measure of safety. He makes no mention of any input or consultation with the Navajo Nation, nor does he refer to the 49,200 acre-feet estimate made by the Bureau of Reclamation. Concerning Article VI and the stream depletion theory he writes, “[t]his of course is in complete accord with Arizona’s construction of the Colorado River Compact, and it is believed will be helpful to Arizona in opposing California’s arguments on the Gila River.” Carson concluded his report with “I believe it to be fair, just, and equitable to all of the States, and particularly valuable to Arizona in that it supports Arizona’s position in opposition to the arguments made by certain California interests” (Carson’s report is included in the record of the 1949 Congressional Hearings on the Upper Basin Compact, pages 128-139).

After a minor kerfuffle with California’s Congressional delegation which was settled by report language making it clear that by approving the Upper Basin Compact, Congress was not committing the United States to any interpretation of the 1922 Compact, it was approved by Congress and became effective on April 6, 1949.

Was the Carson strategy to minimize its claims for Upper Basin water and enlist the Upper Division States as close allies in Arizona’s quest to build the CAP successful? The short answer is yes, the result was that the CAP was authorized in 1968 and has been fully operational for about three decades. The path that Arizona used to get there, however, differed from the one that he envisioned. Carson who died in 1951, believed that Arizona would use the stream depletion theory to convince Congress, or if that failed, the Supreme Court, that Arizona had a sufficient legal water supply under the 1922 Compact to build and operate the CAP. Indeed, in 1952 when Arizona filed suit against California, one of its claims for relief was that it asked the Supreme Court to find that the stream depletion theory was the proper method of measuring apportionments under the 1922 Compact.

In one of the first major turning points in the case, in 1954 California filed a joinder motion to bring the Upper Basin States into the case arguing that the compact issues that Arizona wanted the court to interpret such as how apportionments are measured, how the surplus is measured for Mexican Treaty purposes, and how mainstem reservoir evaporation is handled were basin wide issues that impacted all seven states. From today’s perspective, California’s logic seems obvious, but that was not the case in the 1950s. In a coordinated response, Arizona and the Upper Divisions States convinced Special Master George Haight that the case involved Lower Basin matters only. While the Upper Division States had independent reasons to stay out of the case, they were concerned that their participation in the case would delay Congressional approval of the Colorado River Storage Project, clearly had they decided that they needed to be in the case, the Special Master would most likely have let them in. Note, New Mexico and Utah were parties to the case as to their Lower Basin interests only.

Ultimately, Haight’s successor, Simon Rifkind determined that the 1922 Compact did not need to be interpreted to decide the case. Thus, the disputed compact issues raised by Arizona in 1952 remain unresolved. In 1963 the Supreme Court agreed, ruling that the 1928 Boulder Canyon Project Act allocated 2.8 million acre-feet per year of mainstem water to Arizona, but subject to water availability under the 1922 Compact. This gave Arizona sufficient water to gain Congressional approval of the CAP. Had Arizona not followed Carson’s advice and chosen a more adversarial approach to dealing with the Upper Basin States, it is unclear if the CAP would exist today.

Arizona’s 50,000 acre-feet apportionment was also used to support the CAP because a portion of the power generated by the Navajo Generating Station was used to power the pumps used by the CAP to move water from Lake Havasu to central Arizona. At its peak the coal-fired plant consumed over 28,000 acre-feet per year.  The plant was shut down in 2019. Today, the average use of Arizona’s Upper Basin apportionment is about 11,000 acre-feet per year (U.S. Bureau of Reclamation, Upper Colorado River Basin Consumptive Uses and Losses Spreadsheet, 20240624 version. Note the consumptive use numbers on this spreadsheet are not necessarily the same as Arizona’s use under Article VI of the Upper Basin Compact).

Now nearly eight decades after the water needs of the Native Americans living in Arizona’s Upper Basin lands were subordinated to its interests in the authorization and construction of the CAP, Arizona, the Navajo Nation, the Hopi Tribe, the San Juan Southern Paiutes, the United States and others have reached a water rights settlement. The settlement divides Arizona’s 50,000 acre-feet of Upper Basin water into three ways: 44,700 acre-feet per year for the Navajo Nation, 2,300 acre-feet per year for the Hopi Tribe, and 3,000 acre-feet per year for the City of Page. Note, the settlement goes beyond just allocating Arizona’s Upper Basin water, it also addresses the Lower Basin Colorado River, groundwater, and the Little Colorado River (a Lower Basin stream).

We thus have finally reached the point where the water Carson told Congress was intended for use by Native Americans might actually be theirs to use.

At the Santa Fe meeting, there was general support and enthusiasm for Congressional approval (and funding) of the settlement. Tom Buschatzke, Director of AWDR missed the meeting because he was in Washington advocating support of legislation authorizing the settlement. The Salt River Project, IID, and CAP all support the settlement.

The settlement of tribal rights has always raised difficult issues for both basins. The rights of Navajo, Hopi, and Southern San Juan Paiute people to use the Colorado River for both consumptive and cultural purposes predate statehood of all four Upper Division States. Their rights are “pre-compact” rights and thus, under Article VIII, are not impaired by the 1922 Compact. The use of water by tribal sovereigns has never fit well into the state-centric water use rules established by the Euro-American settlers. When the Navajo Nation, a sovereign entity, signed its1868 Treaty with the United States, it was one community. Today, it is crisscrossed with boundary lines. It has land and water in three Upper Division States, in both the Upper and Lower Colorado River Basins, and in the Rio Grande as well.

Whatever the detailed issues are, it is now time to get past them and move the Basin toward unanimous support for approval and implementation of this important settlement.

Quoting Tocqueville

If each citizen did not learn, in proportion as he individually becomes more feeble and consequently more incapable of preserving his freedom single-handed, to combine with his fellow citizens for the purpose of defending it, it is clear that tyranny would unavoidably increase together with equality.

Alexis de Tocqueville, “Of the Use Which the Americans Make of Public Associations in Civil Life,” in Democracy in America

Jack’s Graph is Better Than Mine

Courtesy Jack Schmidt, Utah State University

This version of the Colorado River graph, courtesy of Jack Schmidt, more clearly illustrates the narrative of the talk I’m giving later this week:

  • Early 20th century pluvial, when we built the institutions
  • Mid-century baseline, when we built all the dams and farms and cities
  • Millennium drought, when we emptied the reservoirs

 

From the Sands to Thriller

Album cover with Frank Sinatra and Count Basie spotlighted by stage lights, reading "Sinatra at the Sands"

Sinatra, Basie, and Quincy Jones

I don’t remember how I stumbled onto Ernie Smith’s Tedium. All you need to know is that he wrote the definitive guide to why Butterfinger candy bars break so easily:

I’m always drawn to the structural integrity of candy bars. On the surface, they are often stacked, solid, as thick as a smartphone. (It must be the nougat.) But they break down easily, with only a minimum of outward pressure. Which is why it’s not a bad thing to put a smartphone in your pocket, but maybe not a Snickers.

One of the reasons I abandoned newspapering as soon as I saw a clear path was the stress – there was no silence. By this I do not mean the absence of sound – perhaps “silence” is not quite the right word – as the absence of freighted, weighty noise.

Smith had a piece this morning about the value writing about ideas that can “take up space… offer up points of conversation as alternatives to talking about the noise that constantly fills up our eardrums.”

If I had the writing chops, here’s where I’d go with this….

Your Moment of Zen

One of my favorite pop music tricks is a meandering misdirection in a song’s introduction, circling the main narrative before converging on it, the musical structure emerging slowly. Derek Trucks’ quiet wander into Midnight in Harlem on the band’s Everybody’s Talkin’ album is a current favorite. It makes me stop and listen. It drowns out the noise with a special quiet, commanding patience and attention.

The creaking door, the sinister footsteps, the wolf’s howl, before a ticking clock sets up the rhythm in Michael Jackson’s Thriller is canon here. I am riveted, peering from the first few bars into the song’s future, knowing what’s coming.

Sinatra at the Sands in 1966, the patter, the quiet Count Basie piano luring us into a drunk song.

Quincy Jones, amiright?

Sixteen years separate Sinatra at the Sands from Thriller, two of the towering works of American pop culture, both made possible by the towering talent of Quincy Jones, who died yesterday at the age of 91. I am listening to both this morning, and the musical structure Jones built to showcase the talent of both Jackson and Sinatra is a joy.

When I was a kid in L.A., learning how to write, I took repeated stabs at writing about pop culture and art, and I often wonder what might have happened if that path had more clearly opened up before me. I don’t regret the path I ended up on. It gave me a life of meaningful work. But it sure was noisy.

Look, I get that both Frank Sinatra and Michael Jackson are troubling characters. If I had the writing chops, that would add a richness to the narrative, another layer beyond the noise. Or perhaps that is the noise? The story of Frank Sinatra and Michael Jackson and Quincy Jones is deeply entwined with our nation’s troubled history of race. If I had the chops, I’d write about that, too. Maybe there is no way to avoid the noise.

For now, I’ll just play Thriller one more time before getting back to work.

 

Reservoir Drawdown in 2024: Are We on Track to Recover Storage?

By Jack Schmidt

Unfortunately, water use between now and next April is on track to exceed the inflows of the snowmelt season, resulting in a net loss of reservoir storage. The persistent decrease in runoff is severely challenging the quest to rebuild reservoir storage.

 

Summary

Reservoir storage in the Colorado River basin is now approximately equal to two year’s average annual consumptive use. In the three months since reservoir storage peaked in July 2024, drawdown of those reservoirs lost more than 80% of the increase accomplished by the 2024 snowmelt inflow season, which had increased basin reservoir storage by only 2.5 million acre feet despite the Upper Basin snowpack having peaked at a snow water equivalent that was 13.5% greater than the long-term average1. If this rate-of-use continues for the next six months, there will be a net loss in basin reservoir storage. Water supply reliability and security for Colorado River water users can only be accomplished if we replenish the amount of water stored in reservoirs and not further deplete the declining supply.

 

Details

On 15 October 2024, total contents of the reservoirs of the Colorado River Basin upstream from the Gila River were 27.8 million af (acre feet). This amount of reservoir storage would support two years of consumptive use of the Colorado River2, assuming that basin consumptive uses remain approximately 13 million af/yr, the average between 2021 and 2023. Reservoir storage today is comparable to conditions in mid-June 2021 (Fig. 1) when there was increasing concern among the basin’s water managers about the security and reliability of water supplies provided by the Colorado River. Today, we should be just as concerned as we were in 2021.

Figure 1. Graph showing total basin reservoir storage (blue line), and storage in different parts of the Colorado River watershed between 1 January 2021 and 15 October 2024. CRSP reservoirs are those authorized by the Colorado River Storage Project Act.

Figure 1

The only way to increase the security and reliability of the water supply is to increase reservoir storage, and we are not doing a very good job of achieving that goal. There is no doubt that the large reservoir inflows of 2023 benefitted the basin water supply, allowing us to take a step back from the edge of the cliff of crisis. Basin reservoirs in mid-March 2023 were the lowest they had been (21.3 million af) since late May 1965, when the Colorado River Storage Project’s reservoirs were just beginning to fill and other reservoirs had yet to be built. Snowmelt runoff in 2023 recovered 8.4 million af of reservoir storage, nearly a 40% increase from the March 2023 low point (Fig. 2).

Figure 2

Figure 2. Graph showing reservoir storage between 1 January 2023 and 15 October 2024, highlighting the amount of reservoir recovery during each snowmelt season and the amount of reservoir drawdown during intervening periods.

However, little additional progress in reservoir recovery was made in 2024.  We were encouraged that reservoir drawdown during the nine months immediately following the 2023 inflow season was remarkably small, only 2.15 million af and only 26% of the preceding gain in storage. However, snowmelt inflow only resulted in 2.5 million af of gain in reservoir storage in 2024 (Fig. 2).

In contrast to last year, basin uses and losses are much greater this year. In the first three months following the 2024 inflow season that ended in mid-July, reservoir drawdown has been 2.14 million af, more than 80% of the gain of the preceding inflow season (Table 1). Slightly more than half of the drawdown during the last three months has been from the 42 reservoirs upstream from Lake Powell. Those releases supported the needs of mid- and late summer irrigated agriculture, were exported out of the basin, or flowed into Lake Powell. It is likely that the drawdown from these reservoirs will decrease during winter. Slightly more than 30% of the drawdown has been from the combined contents of Lake Mead and Lake Powell. Recent agreements to decrease diversions in the Lower Basin hopefully will reduce drawdown from Mead-Powell combined storage during the next six months. The continued drawdown from Mead-Powell storage will be a robust test of the effectiveness of recent drought management measures.

Table 1. Reservoir drawdown during the first three months following the 2024 snowmelt compared to the total drawdown during the nine months following the 2023 snowmelt season.

Table 1

Basin water use between now and April 2025 is on track to exceed the inflows of the 2024 snowmelt season, resulting in a net loss of reservoir storage since the bounty of 2023. The persistent decrease in runoff in the 21st century is severely challenging the quest to rebuild reservoir storage.  We desperately need to accomplish that goal to avoid another water supply crisis such as occurred between 2020 and 2022.

The only way to replenish the amount of water stored in reservoirs is to decrease reservoir drawdown to match or exceed each year’s gains that occur during the inflow season. For the next six months, that is our goal.

 

  1. Based on data from the Natural Resources Conservation Service snow water equivalent for the Upper Colorado Region for 2024 and for 1991-2020. https://nwcc-apps.sc.egov.usda.gov/awdb/basin-plots/POR/WTEQ/assocHUC2/14_Upper_Colorado_Region.html
  2. Also including losses from reservoir evaporation.
  3. Between 6 July and 15 October 2024
  4. Between 13 July 2023 and 17 April 2024.
  5. Includes drawdown of Lake Mohave and Lake Havasu.

Federal Judge Cites Upper Colorado River Basin’s Compact Call Risk

A federal judge this week criticized the federal government for failing to consider the risk of a Colorado River Compact call in its environmental review of the planning for Denver Water’s expansion of Gross Reservoir in Boulder County.

Wrangling over the risk of a compact call – which the judge said could force water use reductions in the Upper Basin if the Upper Basin states fail to deliver enough water past Lee Ferry to the Lower Basin – has been a key point in current negotiations between the two basins over future Colorado River operations.

The ruling, in a lawsuit against Gross Reservoir expansion by Save the Colorado River and others, allows construction to proceed, but criticizes the project’s planners for not considering the fact that the risk of a compact call means there might not be enough water to fill it. (Here’s Michael Booth’s Colorado Sun story on the decision.)

In the decision, federal judge Christine Arguello noted that the Army Corps of Engineers environmental review of the project “rests on the assumption that there will be no compact call…. However, considering the American West’s last few decades of severe aridity, such an assumption warrants considerable scrutiny.”

Here’s the full language from Arguello’s ruling. I’ve bolded the key bits:

The American West’s viability rests in large part on the Colorado River, which is an undeniably overutilized water source. The Colorado River’s over-allocation is due to a fatal flaw baked into the 1922 Colorado River Compact—the bedrock-level agreement that forms the basis of the various overlapping management systems dictating the River’s death by a thousand cuts. The Colorado River Compact rests on a politically unpalatable truth—the Compact promised the basin states water that simply does not exist. According to water experts, the Compact’s apportionment scheme draws from deliberately misleading hydrological modeling of the Colorado River’s flow rates. See generally Eric Kuhn & John Fleck, Science Be Dammed: How Ignoring Inconvenient Science Drained the Colorado River 1 (Univ. Ariz. Press 2019). That fatal error now sits enshrined within the Compact, and all of the basin states’ various agreements with each other (and with the Department of the Interior) are forced to overcorrect for the Compact’s flawed hydrology because revisiting the agreement would require a virtually unthinkable amount of time, energy, money, and political will. However, should Colorado River diversions exceed the river’s available water supply—which appears inevitable, at this rate—the 1922 Compact provides a “compact call” mechanism whereby the upper basin states are bound to curtail their water users’ diversions to ensure enough water reaches the lower basin states and Mexico to satisfy the artificially inflated water delivery obligations set forth in the Compact. This Court emphasizes this context for good reason: the cracked foundation of the Colorado River’s management system all but demands skepticism over any proposal that will affect the hydrology of the Colorado River basin. In the instant case, the Corps noted in its FEIS that its reasoning rests on the assumption that there will be no compact call. AR 159092; but see AR 0014667. However, considering the American West’s last few decades of severe aridity, such an assumption warrants considerable scrutiny. See, e.g., Anne Castle & John Fleck, The Risk of Curtailment under the Colorado River Compact 5, 34–35, 40 (2019) (emphasis added) (“Even if the risk of curtailment of Colorado River rights were assumed to be low, the consequences are not. Cities, and farmers and ranchers on the West Slope, would lose economic activity, jobs, income, and community benefits.”); Cherokee Water Dist. v. City of Colo. Springs, 519 P.2d 339, 340–41 (1974) (“Water is essential to the existence of a community.” (emphasis added)). In light of this context, it is perplexing to this Court that the Corps dismissed the possibility of a compact call in its analysis of a proposed water management project.

Further reading of the judge’s sources:

 

MRGCD Board Approves Abiquiu Storage Deal

The Middle Rio Grande Conservancy District Board this afternoon (Monday Oct. 14, 2024) approved an agreement among the District, the Albuquerque Bernalillo County Water Utility Authority, and the Bureau of Reclamation for temporary storage of District water in Abiquiu Reservoir on the Rio Chama while El Vado Reservoir is out of comission.

This is a huge deal. Without it, we could expect low river flows and lousy irrigation supplies through New Mexico’s Middle Rio Grande Valley in late summer for years to come. Even with it, there are still obstacles to good late summer flows – most notably New Mexico’s current Rio Grande Compact debt to Texas. But it’s a huge step.

All of this is necessary because El Vado Dam, where the 1930s relic built to store water during high spring flows for late summer use, is sorta broken. “Temporary” here seems to be as much as ten years.

It’s a hairball of an agreement. (You can read it here, it starts on page 44 of the pdf of today’s MRGCD board packet.)

Abiquiu, built by the U.S. Army Corps of Engineers in the 1950s, began its life as a flood control dam. But its role as a water storage facility has been expanding ever since, with Congress in the early 1980s approving the storage of San Juan-Chama Project water imported from the Colorado River Basin. It is that San Juan-Chama space, under the control of the Albuquerque Bernalillo County Water Utility Authority, that can be used under the new agreement to store native Rio Grande water for MRGCD.

Cheesy '60s TV graphic that says "But Wait, There's More!"

You also get – Heron storage waivers!

The accounting will be tricky. The first water stored will be the top-priority water for the Six Middle Rio Grande Pueblos – a priority granted in the 1920s as part of a deal that provided the necessary up-front funding, via the federal Indian Irrigation Service, to kick-start the creation of the MRGCD. (Bob Berrens and I tell that story in our new book Ribbons of Green, which you’ll be able to read at some point once we finish the revisions currently underway.) The Pueblo water goes by the name “prior and paramount”. Once the P&P water is in, the next layer of stored water has to be equivalent to our New Mexico’s total Rio Grande Compact debt to southern New Mexico and Texas, currently 121,500 acre feet. (But maybe shrinking this year, based on early numbers?)

But wait, there’s more!

After those two accounts are filled, MRGCD will be able to begin storing water for farmers and environmental flows. But there’s a neat twist here to the agreement. Once this last account rises above 10,000 acre feet (it’s called “MRGCD usable water”), the District agrees to keep river flows high enough through the Middle Rio Grande Valley for ABCWUA to operate its drinking water plant.

But wait, there’s more!

In addition to all the above, if you act now (the ABCWUA board will take this up in a couple of weeks), you also get, at no additional charge, storage waivers in Heron (I’m sorry, this is already too complicated for more background, Heron’s another reservoir, it’s on Willow Creek, JFGI, it’s late and I’m tired.) for San Juan-Chama water that would have otherwise been parked in Abiquiu!

 

Some data on alfalfa production

Update: Data here is from USDA, the “USGS” in the graphs is a typo in the code I used to generate them, which I’m too lazy to fix.

Line graph showing the trend of alfalfa acres harvested in New Mexico from 2000 to 2024. The x-axis represents the years, while the y-axis shows the number of acres harvested, starting from 0. The line is black with circular markers at each data point. A slight fluctuation in acres is observed, with values generally between 120,000 and 160,000 acres over the years. The bottom label reads: 'Data: USGS, Graph: John Fleck, Utton Center, University of New Mexico School of Law.'"

New Mexico alfalfa acreage is the lowest it’s been since the 1950s.

The U.S. Department of Agriculture’s 2024 estimate of alfalfa acreage in New Mexico, 130,000 acres, is the lowest it’s been since the 1950s. Acreage is down 55 percent since the peak at the turn of the century.

Here’s Arizona:

Graph showing rising alfalfa acreage in Arizona from 1919 to the present

Different story for Arizona.

California:

Line graph showing declining alfalfa production in California

California, growing less alfalfa

Colorado