I sat in the audience dumbfounded last month listening to Pat Mulroy speak at the 16th Annual Water Conservation/Xeriscape Expo here in Albuquerque. Mulroy is the head of the Southern Nevada Water Authority, the agency that wholesales water to the Las Vegas, Nev., area, and is arguably the most prominent figure in western water politics and policy right now.
I’d arranged for an interview after her talk, and I’d stayed up late the night before re-reading some ancient history that I wanted to talk to her about – John Wesley Powell’s ideas about organizing government in the West around watershed boundaries. There’s a theme I’ve been kicking around – the notion that, in building the system of dams and diversions we now use to manage western water, we’ve created in effect one uber-watershed that extends from San Francisco to Albuquerque, but that our systems of governance haven’t caught up.
I was hoping to get Mulroy to talk in our interview about some of the implications. So I sat there slightly dumbfounded when, in the talk itself, she invoked Powell’s ideas about watershed government and then said this (sub/ad req):
“We created the largest artificial watershed in the world,” said Mulroy… “That has created an environment of extreme interdependence.”
The problem, according to Mulroy, is that we do not have the political institutions and policies in place to manage the vast plumbing system we’ve created, leaving a risk of shortages and litigation.
OK, guess I can check that interview question off my list. 🙂
But in really diving into the details of what Powell was talking about this weekend, I’m beginning to wonder whether I’m not quite thinking correctly about this – or whether the differences between Powell’s formulation and the “artificial watershed” governance idea Mulroy and I are talking about exposes a problem in my thinking.
Powell apparently first sketched this out testifying before a congressional group, the Committee on Irrigation, in March 1890. There’s a lot I haven’t read yet, but the first reference I can locate (hat tip to Bill DeBuys’ Powell reader Seeing Things Whole, which has a nice discussion of this with references) is a discussion of the Rio Grande. And the watershed concepts he’s describing involve very small, self-contained units.
Here’s his elaboration, in Institutions for the Arid Lands, published in Century Magazine later that year:
[T]here is a body of interdependent and unified interests and values, all collected in one hydrographic basin and all segregated by well-defined boundary lines from the rest of the world. The people in such a district have common interests, common rights, and common duties, and must necessarily work together for common purposes. Let such a people organize, under national and state laws, a great irrigation district, including an entire hydrographic basin; and let them make their own laws for the division of the waters, for the protection and use of the forests, for the protection of the pasturage on the hills, and for the use of the powers. This, then, is the proposition I make: that the entire arid region be organized into natural hydrographic districts, each one to be a commonwealth within itself for the purpose of controlling and using the great values which have been pointed out. There are some great rivers where the larger trunks would have to be divided into two or more districts, but the majority would be of the character described. Each such community should possess its own irrigation works; it would have to erect diverting dams, dig canals, and construct reservoirs; and such works would have to be maintained from year to year. The plan is to establish local self-government by hydrographic basins.
Clearly “local” is a critical piece of Powell’s formulation that I haven’t been giving sufficient attention in my thinking.
I’m musing out loud here for two reasons. The first is journalistic. For the same reason Mulroy invoked Powell’s ideas in her talk, I like to invoke them as a story-telling device, a way to help make people make sense of this idea I’ve been working on that people all across the West are interlinked by common water systems in a web of interdependencies that are very real in a physical sense, but which our governance can’t quite handle.
But I’m also in that dangerous journalism no-man’s land, where I’m actually trying to advocate a policy approach. If I use it that way, it’s incumbent on me to get the history right.
The concept sounds more like ecoshed than watershed, and so is closely related to a basic concept that got a lot of attention in late 20th century green circles. But as he clearly had a sense of the West as a land of permanent water limitations, it all makes sense. It would be interesting to see more of Mulroy’s presentation (sounds like that’s forthcoming), but as you know in more detail than I her career has had a, shall we say, more extractive orientation.
Given the circumstances of his times, I suspect Powell may not have thought through the implications of large-scale inter-basin water transfers, but it sounds as if he might not have thought they were a very good idea (except possibly in a drought emergency).
In water management terms, I think that the “artificial watershed” concept Mulroy and I are talking about matches up nicely with Powell’s – the idea that people with shared sources of water should have a shared system of governance for managing that water. He seems to have been afraid of the potential problems associated with differing jurisdictions trying to share responsibility for the managing the same water supply.
As for what Powell might have thought about large scale transfers, imagining Powell in the modern world is a fun parlor game, but I think it’s fundamentally impossible to know. It is clear, though, that he very strongly believed in building dams. The Congressional testimony I was reading from 1890 advocates a number of sites in New Mexico.
On the face of it, “for the division of the waters, for the protection and use of the forests, for the protection of the pasturage on the hills” still seems more ecology-oriented than just water management-oriented. The double use of “protection” seems significant. But I’ll wait to hear more.
1) The watershed is not artificial, but governance can be.
2) The CO watershed is indeed managed by too many orgs, without a single supreme body (MX/US) case in point.
3) Not sure Vegas would do better or worse with single mgmt, but they wouldn’t have to fight so many legacy/turf battles.
4) If you need someone to advocate policies (and take the heat as an idiot), I’m your man (subject to the content of the particular policy 🙂
It seems to me that the idea of a multi-state, multi-country water god, a person who is a beneficent dictator of a watershed/ecoshed, washes ashore somewhere along the rivers, flops around a bit, desiccates and dies.
The situation strikes me as the classic multi-person prisoners’ dilemma. None of the current water lords, Pat Mulroy and others, would be willing to give up their local power to some larger entity that would tell them what to do and have power over them. Powell’s thoughts might be scientifically compelling but politically impractical or impossible.
I would like some columns not on policy recommendations so much but on politicians and others making testable predictions about how a reasonable governing structure would come into being, a structure that would avoid the ‘too little money, too little competence’ oversight of financial markets and the subsequent collapse of these markets. The financial story line is laid out nicely in Matt Taibbi’s book “Griftopia.”
Pat’s extremely smart, but she has an agenda — increasing LV’s water supply. And with her attempts to bring water from the desert under attack, she’s once again looking at the CR. A unified legal system would likely increase the power of cities at the expense of ag interests, and the big fat target out there remains IID.
As far as the law goes, the US Constitution allows for interstate compacts so long as Congress consents. (Art I, sec. 10, clause 3.) Of course, Congress did consent to the formation of the Colorado River Compact, back in 1922. Changing the structure of the Compact would, presumably, require the consent of the seven states and the subsequent approval of Congress.
So let’s say that a new Compact should exist, and the key characteristic is the existence of an elected governing board. How should voting power be allocated? As a resident of LA, it seems to me that basic democratic principles require 1 person, 1 vote for everyone in the watershed; that’s what a unified watershed means. Of course, I recognize that others may want to perpetuate state-based voting. But if that’s the case, then what’s wrong with the current structure.
A second, tiny little problem is the existing allocation of water rights. Would the new Board have the power to condemn IID’s water rights? What findings would it need to make? What law and what constitution would govern the proceeding?
Pat is playing out the hand that James Scrugham dealt her.
James represented Nevada in the Colorado River Compact in 1922. He negotiated 300,000 Acre Feet. Considering that the population of Las Vegas at the time was 2,304 people and the entire population of Clark County totaled under 5,000 people. the number of 300,000 Acre Feet probably seemed reasonable. At the time, the only area in Nevada that could benefit from the waters of the Colorado (without pumping it up hill +500 feet) was in the Southern end of the state. If you’re familiar with the area – the only feasible area to irrigate is roughly South of Laughlin to the area at the tip of the state (where the AVI Casino presently is). I would guess that the suitable land area for irrigation is about 40 square miles, give or take. Like I said, 300,000 Acre Feet probably seemed reasonable at the time.
Fast forward to today. The 2010 population estimate of the Las Vegas metropolitan area was 1,951,269 people. Same amount of water as 1922. Pat is making the best of the situation handed to her. I guess if I were in her shoes, I would explore every possibility to improve the situation for Las Vegas.
Some of the comments suggested re-thinking the Compact. Another comment suggested that the Federal Government taking a more active role in the process. Right now the Federal government is allowing the stake holders to work out problems that they have with water. My own opinion is that this is the best course of action. The last time the Federal government imposed water restrictions (as I remember) was up in Klamath Falls. It wasn’t popular.
We live in interesting times.
DG – To you think the non-federal stakeholders are up to the task?
My own personal opinion is that they have to be up to the task. At the present time, the stake holders have some control over the way things are handled.
Some would argue that the Federal Government would mismanage the River. Some already do.
From my own viewpoint, I see the drought as having a beneficial side effect. It is forcing people in the SouthWest to realize that the Colorado River is a finite resource that needs to be managed and cared for. Changing one’s attitude and lifestyle to conform to using less water takes time. Changes imposed by the government (doesn’t matter at which level) never seems to be popular with anyone. Something on the basic level as water becomes personal.
Sooner or later, the Feds will impose restrictions. Think Lake Mead levels here. The restrictions will not be popular. No doubt, some people will lose their livelihood due to the new restrictions. Everyone will be upset that the government let the situation get out of hand. Some will say that politics had a hand in it.
I’d like Francis’ take on this. Francis has provided valuable insights on these issues and the legal problems that are faced by the stakeholders.
Are the Stakeholders up to the job? They have to be.
Last thought. What if the federal government re-thought the river’s management with the issues that are a big topic today – Homeland Security? What then???
(sorry for the parting joke here) dg
Francis – Your point about the structure of the current compact, and the fact that it does incorporate participation by each of the states and the federal government, is well taken. So perhaps we already do have watershed governance here of the sort that Powell was talking about, at least insofar as I’m trying to bend his point to help me think about the current situation. Hmmm. I’ll have to roll that one around a bit and contemplate its implications for my thesis.
DG – I’m intrigued by the “feds imposing restrictions” piece here. That seems to sort of be what led to the QSA, and sort of what led to the shortage sharing agreement, but the imposition of restrictions follows a path via which the feds nudge or force stakeholders to act, right?
The following text is taken from the Authority section of the draft 2011 Annual Operating Plan prepared by the Bureau of Reclamation for Colorado River operations. It will give you a sense of the obligations imposed on BoR in determining when and how to release water from the CR reservoirs.
This 2011 AOP was developed in accordance with the processes set forth in: Section 602 of the CRBPA; the Criteria for Coordinated Long-Range Operation of Colorado River Reservoirs Pursuant to the Colorado River Basin Project Act of September 30, 1968 (P. L. 90-537) (Operating Criteria), as amended, promulgated by the Secretary; and Section 1804(c)(3) of the Grand Canyon Protection Act of 1992 (Public Law 102-575).
This AOP has been developed consistent with: the Operating Criteria; applicable Federal
laws; the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, the Treaty Between the United States of America and Mexico, signed February 3, 1944 (1944 United States-Mexico Water Treaty); interstate compacts; court decrees; the Colorado River Water Delivery Agreement; the Interim Guidelines; and other documents relating to the use of the waters of the Colorado River, which are commonly and collectively known as the “Law of the River.”
The 2011 AOP was prepared by Reclamation on behalf of the Secretary, working with other
Interior agencies and the Western Area Power Administration (Western). Reclamation
consulted with: the seven Colorado River Basin States Governors’ representatives; the
Upper Colorado River Commission; Native American tribes; other appropriate Federal
agencies; representatives of the academic and scientific communities, environmental
organizations, and the recreation industry; water delivery contractors; contractors for the
purchase of Federal power; others interested in Colorado River operations; and the general
public, through the Colorado River Management Work Group (CRMWG).
We have any number of political institutions and policies in place to manage the River; it’s just that Pat (and DZ) doesn’t like the outcome. But how, exactly, does LV get a greater share of the water? A pure democracy within the Basin would put LA in the driver’s seat. Creating tradeable water rights is essentially an expansion of the QSA, which is still being litigated and is unpopular in Imperial County. Distributing IID’s water rights (or the rights held by any public agricultural agency) to individual farmers so farmers could enter into direct negotiations for lease/sale of their rights would be very complex and likely doesn’t have the votes.
Fighting over a shrinking pie is never any fun, and the person who started with the smallest slice is bound to complain the loudest.
What happens if LV does not fight over the shrinking pie but just takes a bigger piece and dares anyone to take the piece back?
Some of the comments above seem to assume that everyone will act politely and just accept less water.
Delbert says that the stake holders have to be up to the job.
A more likely assumption, as least to me, is that some stakeholders are up to the job and some aren’t. The ones that are up to the job seem likely to take pie slices away from those who aren’t (e.g. Chinatown, power politics in Congress and in states, Libya so far, and Jewish settlements on the West bank).
Is my assumption wrong? If so, why? And how will the game play out?
Francis – Thanks.
I guess what I’m interested in, more than the details of current decision-making (as embodied in the AOP), is what happens when Lake Mead drops below 1,025, or when the Upper Basin fails to deliver the required 7.5maf-plus and the Lower Basin makes a call – in other words, when we enter a part of the problem space not covered by the operating rules, or areas of the problem space where the operating rules are contested.
DG – I’m intrigued by the “feds imposing restrictions” piece here.
John, perhaps I should have re-framed it like this:
Doctor giving a speech to a group of out of shape patients.
“The body is in trouble here. It’s in your best interests to amend your ways. It’s up to you. Cut your intake or the prognosis is bad. In the future, I may be forced to cut your calories to under 2000 per day. We can do it. All it takes is you working it out together. Here is a general guideline for all of us to follow. You all agreed to this. Questions???”
“Yes, Nevada?”… “No, you can’t have an extra share. We’re sorry about the Gastric Bypass you had in 1922. You will have to live with it.”
“California. Your question?”… “No, you are not getting more due to the fact that you’re the fattest one here.”
“I don’t like it anymore than you…..”
Anyway, that’s one way of looking at it.
Would the Feds actually do this and would they enforce it across a few election cycles?
Eric: the country works (to the extent that it does) because we all mostly obey the law. And if a court finds that we haven’t and issues a court order to change that behavior, we largely obey those as well. The other option is federal troops surrounding black kids as schools get desegregated.
If LV decides to disobey the law, then first the other States will get a court order directing it to comply. If LV refuses to comply, then the States will get the court to order federal marshals to force compliance. Somewhere along the way, I hope that Nevada officials come to their senses and tell Pat to stand down.
JF: when detailed regs don’t apply, you return to the basic law. We would return to the 10-year rolling average requirement under the 1922 agreement.
I understand the ‘obey the law’ point.
My counterpoint is that laws are often not well enough written so that people can agree on what ‘obey the law’ might mean in complex cases. Water laws, I have been told, are strongly contradictory across jurisdictions.
My second counterpoint is timing. For instance, the Federal Government canceled a contract with Northrup Grumman and said that Northrup Grumman should pay back $1,000,000,000. Northrup said that the only reason they did not meet a milestone was that the government declared the relevant information top secret and would not tell Northrup what it was. That suit was filed in 1984 and is just reaching appellate courts now.
Here in New Mexico, a ruling on water rights was decided in the last few months. The initial legal filing was in the 1940’s.
So my back up question is ‘If water rights have to be adjudicated and it takes 60 years to do the initial adjudication and another 40 years for this result to become settled case law, do we have 100 years in which to decide water rights for the Southwest.’
It seems, to complicate things still further, that states can rightfully claim that the federal government may have smaller powers than it thinks it does in water law because water law is not spelled out in the constitution and all rights not spelled out in the constitution default to the states. So, many proposed watershed solutions are unconstitutional.
I would also like someone to address my timing question. If water law has to hold for 100 years, that is about 4 generations of unelected bureaucrats, 25 generations of congressmen, and 20 different presidents. Given the longevity of bureaucrats and the political power of populous states, it would seem that whatever laws emerge at the Federal level would mostly contain the wishes of the bureaucrats and the populous states.
Can someone please spell out the real world 30 year or more future politics of water?
Saying that we will all get along or that the courts will impose a solution does not, based on experience in other areas, seem to be the likely result.
Eric: Can someone please spell out the real world 30 year or more future politics of water?
Not on a Blog. Besides, it’s too fluid of a subject.
Realistically, Water follows money. Always has.
Here is an example, ripped from today’s headlines on Libya ;-), of the complications that I see on water policy. It is sobering to realize that Clinton, Obama, Gates, Power, etc.–today’s decision makers–are unlikely to be decision makers 2 years from now. Obama may continue, but the rest, following traditional short stays in these offices, will be gone.
How do you make a viable 100 year policy under these conditions?
The Colorado River Compact was signed in 1922. It provides the framework we still use today. So what we’re discussing here is, in fact, a policy that has remained viable for a century because the underlying legal structures and rule of law have endured.
Eric: you have succinctly laid out the difference between law and politics. Though politicians may change, they must implement the laws as they exists until the law is changed.
There’s still plenty of room for conflict even under the rule of law. But the basic idea, even between states, is that you don’t use self-help. If you have a dispute, you go to court.
The Colorado River Compact has endured for 90 years, but if it was optimal for the present, it seems that we would not be having this thread.
What do you do about ambiguously written laws?
What do you do about multidecadal litigation for a problem that needs to be solved in a couple of years?
It seems that there are many ways to game the system and that people game it all the time to their own benefit and the detriment of other players (again, see Chinatown, IID and other examples). I have not hear the LA Department of Water and Power say, ‘You people can’t come to live in Los Angeles because someone in Truchas, New Mexico may want the same water.’
Yes, the compact has flaws. As I remember my history – the president brought the parties to the table. The state’s representatives met at Bishop’s Lodge to hash out the details. The deal was struck in the bridal suite (ironic?). The agreed amount of annual river flow was 15 MAF. That was based on the river flows of 18 MAF. The excess 3 MAF was to address future concerns with Indian and Mexican obligations.
Everyone knows the story of the USGS estimates being too high. The estimates were based on several years of ‘wet years’ in the basin.
Except, no one was aware of that fact. The assumption was that the river could sustain 18 MAF. Over time, monitoring of the river has shown the flows to be less than 18 MAF. Actually lower than 15 MAF.
Operation of the river wasn’t a problem for many years as the states didn’t use the entire allocation. That changed over time.
Which brings us to today. The water usage and demands have increased over time and the ongoing drought has brought flows even lower.
Here we discuss the situation and how the stake holders have ‘cooperated’ to help ensure that they can maintain a reliable source to the water – while maintaining within the spirit of the Compact.
My own opinion is to re-evaluate the numbers used. Instead of 15 MAF the value should be derated to 12-13 MAF. The states still ‘split’ the same percentages on the distribution. Mexico and Indian allocations remaining at the same numeric levels. The stake holders should have the freedom (like they do now) to negotiate between themselves to trade water. In the event of mother nature refilling the system – reinstate the yearly flows to a higher level. But keep the levels in an area that will sustain (and not deplete) the system.
Of course, asking everyone to take less than what they have now will NOT be popular. However, everyone will bear the burden equally. As Eric has pointed out earlier, that demands from LA may preempt someone else.
In times of short water – a farmer’s water will probably be sold (it’s been done before).
We do indeed live in interesting times.
For 3 of the last 4 years I trekked out to LV from NM to attend Western States Salinity conferences. Each time I have witnesse the water levels in Lake Mead going down. The first time I went there, about 1988, the water was nearly at the spillway, so in my memory, the change is significant. A couple of years ago, Pat Mulroy spoke at the conference. No doubt where her priorities are: we all have bosses, and I’m sure she is diligent in pursuit of the direction provided to her by the Board of Directors. She seems to have been fairly successful, as she still has the job.
I started to look for historical census figures for cities along the Colorado (including LA, Phoenix, etc, as they use Colorado river waters)to see what those population figures were when the compact was agreed to. I did not get all the values I was looking for and have not gotten back to it. Basically, the values like Delbert Grady mentioned above for LV was where I was going with that idea. I’ve lived in LA and San Diego and Phoenix, so I have watched the growth over the last 40 years. What looked like a lot of water in 1922 for the populations of their day is not so big today.
Seeing the references to Chinatown, it is curious that Hollis Mulrooney was the name of the water manager in the movie (possible senior memory malfunction, here); William Mulholland built the original Water transport system to LA basin, and Pat Mulroy is the water baron(ness) of today’s west. Need we mull this futher? Also, after reviewing Cadillac Desert, watching Chinatown once more, drag your kids out to see Rango: a new version of the same old water story. I think the kids will see a story about a cute lizzard, and the older among us will see the water “history” one more time.
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