Double Dead Pool on the Colorado River

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.

 

A century ago in Colorado River Compact negotiations: Heading Home

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 7th, 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 27th. 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 27th. 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 9th, 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 3rd, 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 31st President of the United States. As president, on June 25th, 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 19th, 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.

 

A century ago in Colorado River Compact history: the deal signed, the rhetoric soars

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.

A century ago in Colorado River Compact negotiations: the Compact is signed

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 27th 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.

 

 

A century ago in the Colorado River Compact: Wordsmithing details as time runs short

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 24th 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 24th 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 25th meeting would convene at the Chairman’s call after the drafting committee had done its work.

Hoover called the 25th 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.

A century ago in Colorado River Compact negotiations: Agreeing on apportioning the river

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 22nd 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 1st to June 30th.

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 1st, 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 23rd 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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A century ago in Colorado River Compact negotiations: A path to solving the Arizona problem?

By Eric Kuhn and John Fleck

Nevada’s James Scrugham

As Chairman Herbert Hoover gaveled the 21st meeting of the Colorado River Commission to order on the morning of Nov. 20, 1922, they faced two big issues: Arizona’s concerns that the proposal on the table would not provide enough water for Lower Basin water users, and the question of whether to include construction of a dam as part of the Compact’s language. Hoover understood that unless they could find acceptable solutions to both topics, ratification of the compact by all seven states was doubtful.

First, however, Hoover suggested they “take up one or two of these subsidiary articles and see if we can’t clear them out of the way.” After that he needed to focus the discussion back to the two major issues where there was still no agreement.

Tribal water, and remedies

The first order of business was to revisit the issue of how to address Indian water rights. Hoover suggested an alternative the original provision that failed had failed to get approval from Wyoming’s Frank Emerson. Hoover’s new article read “Nothing in this compact shall be construed as affecting the obligations of the United States to Indian tribes.” The term “rights” had been removed. This satisfied Emerson, but he still questioned the need to include the provision in the compact. Hoover responded that the article’s purpose was to remove a potential objection to the compact by Congress.

With the Indian article (now Article VII) passed, the Commission went on to the next subject, an article drafted by Steven Davis on remedies. After some wordsmithing the article passed (now Article IX) – “Nothing herein contained shall be construed to prevent or limit any state from initiating and maintaining any action or proceeding legal or equitable for the protection of any right under this compact, or the enforcement of any of the provisions thereof.”  This short discussion was the closest the Commission ever got to discussing what today is commonly referred to as a “compact call.”

Protecting Imperial

After a bit more discussion of subsidiary articles, California’s W. F. McClure, its commissioner and state engineer, asked Hoover if he could raise an issue he considered “very vital.” Of the seven state commissioners, McClure had until now, been the quietest, rarely participating in the active dialogue. Now he needed their attention. He went on to say that his constituents in California understood the need for a legal document allocating water between the divisions, but there was a similar need for the basin states to support the construction of a storage reservoir to protect the Imperial Valley from flooding. McClure reiterated his request that the compact not become effective until the construction of “a dam to be built in Boulder Canyon.” For the Californians, especially the large contingent from the Imperial Valley, storage was their core issue. The upper river states had now twice blocked the Congressional authorization of storage because there was no compact protecting their rights. Now they feared the Upper Basin states would get their compact but leave California hanging with no assurance that they would support the Boulder Canyon Project. It was a difficult problem. The individual commissioners or for that matter, their governors, or their local legislators had little control over what Congress might do.

Colorado’s Delph Carpenter was unmoved. He again expressed his conceptual support for the construction of storage to protect the Imperial Valley but refused to accept a provision that would make the compact contingent upon the construction of storage. This time he had the full support of his three upper river colleagues. Carpenter offered a resolution from the Commission as an alternative. From the first meeting of the Commission ten months ago, Hoover had been an advocate for including storage in the compact, but Colorado’s Carpenter had been just as consistent in his opposition to it. Now, as they were close to completing their task of writing a compact, it was time to end the verbal debate and find a practical way to deal with the issue that would allow the compact to be ratified by all seven state legislatures.

Hoover then planted the seeds for a potential path forward, pointing out that the Imperial Irrigation District had existing perfected water rights. Under the recent Laramie River case, they might be entitled to what he called a minimum flow. He added “they feel that this pact will destroy any rights which they have for the maintenance of minimum flows.” The implication was that the compact would protect water users in the upper river that now had rights junior to the Imperial Valley with or without storage, but only storage would protect the Imperial Valley. The solution to this problem might be a general agreement on a legal principle that the compact could not impact or impair rights that existed before the compact until storage was built. In Hoover’s view this would generate significant pressure on the Upper Basin to support the Boulder Canyon Project. During the discussion Hoover warned the others that “unless these people are given some protection, they will suspend confirmation of this compact.” The matter was left unresolved, but the door was left open after Hoover’s suggested that New Mexico’s Steven Davis draft language, which McClure agreed to.

Arizona’s lingering questions

The Commission then turned to Arizona’s Winfield Norviel’s concerns with Article III, the apportionment provision. He was now more convinced that 7.5 million acre-feet was not enough for the Lower Basin. Hoover reminded the commissioners that they had concluded they did not have sufficient data to make “an equitable division of the waters” thus, “there should be made by us a preliminary division to be followed by a revision at some subsequent date.” Norviel responded that based on the information they did have from the table prepared by Reclamation’s Arthur Powell Davis, the annual needs of the Upper Basin were 6.5 million and for the Lower Basin 7.68 million, which included the Gila and Little Colorado Rivers. Therefore, the split should be 44.5% for Upper Basin and 55.5% for the Lower Basin.

Note for the reader: The Minutes do not include the table that Norviel was referring to. Elsewhere in the minutes Davis estimated that the Lower Basin’s uses would total 7.45 million acre-feet per year including the Lower Basin tributaries. He also estimated that evaporative losses on a Boulder Canyon Project (Lake Mead) would be 240,000 acre-feet per year, a total of 7.69 million. The problem is that his 240,000 acre-feet estimate is far too low. Evaporation off a full Lake Mead is closer to a million acre-feet per year. Figures from the Fall-Davis Report which Davis often used as the technical resource for the negotiations, show the total Lower Basin evaporation could have been up to 1.5 million acre-feet per year on the Boulder Canyon, Bullhead (now Davis Dam), and Parker Dam- all three reservoirs (or their predecessors) were included in the technical section of the report. Whether Davis was simply mistaken or intentionally low-balled the estimate is a matter of speculation, but the implications remain with us today. Not considering the evaporation data that was available has contributed to the overuse of water in the Lower Basin.

Attributing the proposal to Nevada’s James Scrugham, Hoover described four options the Commission should consider:

  • Stay with a permanent 7.5 million acre-feet appropriation limit for each basin which includes present and future uses, if this is not enough for the Lower Basin, a future commission can deal with it during the next apportionment round. Norviel was already on the record as opposed to this one.
  • Limit each Basin to 8.5 million acre-feet, and during the next round, the basin with the lesser development would be given a preferential right to develop up to 8.5 million. The next round would only apportion the remainder over 17 million acre-feet.
  • Limit each Basin to 8.5 million acre-feet, during the next round if a basin had not reached 8.5 million acre-feet, the amount not being used over 7.5 million would be available to either basin.
  • Limit each basin to 7.5 million acre-feet but allow the Lower Basin to increase its use by one million acre-feet per year for a total of 8.5 million. The amount available for apportionment in the next round would be the water available over 16 million (plus any water provided to Mexico).

Hoover suggested that the Lower Basin caucus first and decide which alternative they preferred then take that to the Upper Basin. He also appointed a small drafting committee to put each option into compact language.

Hoover adjourned the meeting but did not set a time and date for the next regular meeting. He knew for at least the next day he would be very busy working with each caucus. Plus, he would need to meet with some very upset Californians.

A century ago in Colorado River Compact negotiations: Arizona, Mexico, and the afterthought of Tribal water rights

By Eric Kuhn and John Fleck

The Colorado River Basin’s eyes were on Santa Fe: Fort Collins Express, Nov. 19, 1922

After a two-day break to allow the drafters to do their work, the Colorado River Compact negotiators came back together a century ago, on Nov. 19, 1922, to wrestle with three unresolved questions:

  • water for Arizona – specifically its use of tributaries within Arizona
  • water Mexico
  • water for the basin’s Native American nations

When they returned for their Sunday morning meeting, it is apparent from the surviving Compact Commission minutes that on Saturday they either met in executive session or Hoover had met with the individual basin caucuses. Three days previously, the commissioners had agreed to 75 million acre-feet every ten years delivery at Lee’s Ferry, the provision that would make up the Compact’s Article III (d). The issue now facing the commission was how much consumptive use would be apportioned to each basin in this round and did these apportionments include uses on Arizona’s tributaries.

Arizona’s dilemma

Hoover began by reading the then-current draft version of Article III (a)

The water of the Colorado River System may be appropriated throughout the Colorado River Basin without restriction until appropriations in either the Upper Basin or the Lower Basin shall reach 7,500,000 acre-feet per annum, including present initiated rights. In that event a notice providing for a new apportionment may be issued under Article IV. If at the time of said notice the aggregate of such appropriations in either Basin shall exceed those in the other there is hereby vested in that Basin having the lesser amount a continuing and preferential right to make further appropriations until the total in each of the Basins shall be equal.  The unappropriated surplus of waters then remaining above 15,000,000 acre-feet shall be equitably apportioned under Article IV.

Hoover added that Arizona legal advisor Richard Sloan wanted additional language providing in the event the states could not agree on a new apportionment of the surplus waters, either basin could go to court to seek a judicial equitable apportionment.

Hoover then turned to Arizona’s Winfield Norviel and asked, “What do you think?”

Norviel responded, “Well, the thing don’t mean much to me. I don’t understand it at all.”

Norviel wanted more details on the 7,500,000 acre-feet and in particular “if this 7,500,000 acre-feet is to include the streams below Lee’s Ferry and things of that kind. Yesterday, we arrived at the point of excluding these. Mr. Carpenter made that statement that they were ours utterly to use as we saw fit.”

Carpenter interrupted: “No I didn’t, not for a minute.” New Mexico’s Steven Davis stepped in to support Carpenter, noting that even if Carpenter had agreed, “the Northern Sates had not.”

After restoring order, Hoover walked Norviel through his understanding of what they had agreed to, explaining that the proposed definition of the Colorado River System includes the “whole drainage basin of the Colorado River in the United States”, so yes Hoover emphasized, “the Gila and all other lower rivers are included” in the 7,500,000 acre-feet.

Norviel’ s basic problem was that he did not believe the deal on the table gave the Lower Basin enough water.  Arthur Powell Davis’s estimate for the Lower Basin was 7.45 million acre-feet – 5.1 million for the mainstem and 2.35 million for the tributaries. That left only 50,000 acre-feet for a cushion – what if Davis was wrong, what about reservoir evaporation, and what about the Lower Basin’s obligation to Mexico?

It’s easy to see why Norviel might have been confused. The Upper Basin’s offer to guarantee 65 million acre-feet every ten years at Lee Ferry did assume that the Lower Basin would have full use of its tributaries, as did Hoover’s suggestion of 82 million. What Norviel failed to recognize was that those offers were made when the commission was trying to divide the entire river two ways. Under the three-way split – Upper Basin water, Lower Basin water, and a surplus to be dealt with later – the key was limiting each Basin to a specific level of appropriations (7.5 million acre-feet of consumptive use). If Davis was wrong, then a new commission would deal with it in the future from the surplus “unapportioned” pool.

It’s also easy to see why Norviel was nervous. He now worked for a lame duck governor, Thomas Campbell. His successor, George W. P. Hunt had defeated Campbell by running against Arizona’s approval of a compact. Norviel knew that if Arizona was ever going to ratify a compact, he had to negotiate a compact with iron-clad protections for existing uses on the Gila River.

After a bit of further discussion, the Commission decided that they were at an impasse with Norviel on Article III (a) so, they decided to move onto other matters.  They spent much of the rest of the morning discussing the dispute resolution provision, now Article VI. At the end of the morning meeting, they begin to address one of their most delicate issues, water for Mexico.

Water for Mexico

Hoover opened the 20th meeting at 3:45 PM that Sunday. They began where they left off before lunch, discussing how to address water to Mexico under a future treaty. There had always been the framework of a consensus on how to address Mexico. In his compact proposal, Carpenter had suggested that each basin equally share a future Mexican burden.  Now that they had tentatively decided to set aside a surplus pool, the Commission agreed that any water for Mexico should first come from that pool but in the event the surplus was insufficient then each basin would equally share the deficiency. There was confusion among some of the Upper Basin commissioners over whether the Upper Basin’s 75 million acre-feet every ten years included water for Mexico.  With Carpenter’s help, Hoover cleared that up emphasizing that the Upper Basin’s 50% share of any deficiency would be additive to the 75 million acre-feet.

What Hoover wanted the Commission to avoid was putting something in writing in the compact that would give Mexico a future negotiating advantage when the two countries sat down to negotiate a treaty. He even suggested deleting any mention of their discussion of Mexico from the minutes – which did not happen.

After addressing Mexico, the commissioners turned their attention to addressing the priority of different uses.  Again, there was general agreement on how to proceed. Irrigation and domestic uses would be superior to power generation, and all would be superior to navigation, but getting the language right was not easy. Further, Hoover’s legal advisor Ottomar Hamele expressed concerns that Congress would not agree with them on navigation. They would come back to that issue (and Hamele was right).

Tribal water

Late in the 20th meeting Hoover raised the question the Colorado River Basin is struggling to come to grips with even today – the rights of the basin’s Native American communities. The U.S. Supreme Court had ruled 14 years earlier, in the case of Winters V. United States, that Tribes were legally entitled to significant amounts of water. And there were a significant number of Tribal communities in the Colorado Basin. But Hoover’s approach to the issue demonstrates the gap between the legal intentions of Winters and the political and cultural reality of the treatment of tribes.

In offering a proposed compact provision, Hoover referred to it as the “wild Indian Article”, demeaning language echoing a tone of superiority that was prevalent a century ago and would continue to characterize how the European settler-based water management community would address the water needs of the basin’s tribes for much of the century that followed. His language was simple: “Nothing in this compact shall be construed as effecting the rights of Indian Tribes.”  James Scrugham immediately asked. “Why include any provision in the compact?” Hoover responded “to protect the U.S. who have treaties with the Indians” adding “these treaty rights would probably exceed these rights anyway. We don’t want the question raised.” The vote on Hoover’s proposed Article failed when Wyoming’s Emerson says he wanted “to withhold his decision.”

The Commission then adjourned until 10 AM the next morning.  They had accomplished much during the two Sunday sessions, but the commissioners were not happy. They needed to find a way to address Norviel’s concerns with the apportionment Article, the primary purpose of the compact.

 

 

 

A century ago in Colorado River Compact Negotiations: “I wish to warn California…”

Enthusiasm in Imperial

By John Fleck and Eric Kuhn

The world outside of Bishop’s Lodge in New Mexico got its first glimpse of the nascent Colorado River Compact on in the days following the Nov. 16, 1922, meeting as Commerce Secretary Herbert Hoover briefed reporters on the barest details of what was transpiring behind closed doors.

For the first time, folks back home in the seven Colorado River Basin states saw the emergence of the idea of an “upper division” – Utah, Colorado, Wyoming, and New Mexico – and a “lower division” – Arizona, Nevada, and California.

“Definite allotment of an equal amount of the waters of the river was agreed upon between the two divisions,” wire stories out of Santa Fe reported, “and provision was made for the summoning of a second commission some years hence for the equitable division of the unallotted water, in light f the then increasing knowledge and increasing need.”

“Preference in rights for the use of water is to be established to agriculture,” reporters were told, “and none of the existing rights in the basin are disturbed.”

Enthusiasm in Imperial

For the Imperial Valley, vulnerable to flooding in the river’s southern reaches, the news was good. “The commission agreed upon the extreme agency for immediate erection of control work to protect the Imperial Valley from floods,” the wire dispatches continued.

The reaction in Imperial Valley was immediate.

“Protection of Valley is Assured”, the Imperial Valley Press headlined.

In Arizona, a lack of enthusiasm

But in addition to enthusiasm, there were warnings of the struggles to come.

“I wish to warn California right now,” Arizona Governor-elected George W.P. Hunt said in a telegram to the Arizona Republic, “and you can make it as strong as horse-radish that has just been ground, that while I am governor I am going to stick up for Arizona’s rights.”

Arizona, Hunt said, should be entitled to half of the Colorado River’s flow. “The center of the river is a state line,” Hunt said. “The center of the river is where the rights of one state cease and those of the other begin.”
The seeds of decades of conflict between Arizona and the other states of the basin were being sown, even as the Compact’s final drafting was not complete.