The Code of the Pirates and the Law of the River

Arizona lawyer Grady Gammage, a member of that state’s water establishment, opened a conference I attended last week with an explanation of why he became so engrossed in trying to understand “the Law of the River,” that bundle of laws and customs that govern the management and distribution of the waters of the Colorado River. When he first ran for the board of the Central Arizona Water Conservation as a self-described water novice, he kept confronting this: “Every time something came up, someone would say, ‘You can’t do that under the Law of the River,'” Gammage told the audience. “The ‘Law of the River’ is essentially the ‘Code of the Pirates.'”

To an audience of mostly water lawyers, it was a laugh line.

A “Code of the Pirates”, formalized among the seemingly rule-less buccaneers of the 17th and 18th century, adopted by each group, is a reminder that we all need rules.

Consider this, from the code adopted by those who sailed under the Welsh pirate Henry Morgan:

Every man has a vote in affairs of moment; has equal title to the fresh provisions, or strong liquors, at any time seized, and may use them at pleasure, unless a scarcity (not an uncommon thing among them) makes it necessary, for the good of all, to vote a retrenchment.

We did that with the Colorado River, adopted a code to govern its operation. The Law of the River is ill-defined, in part a collection of contracts, statutes, and court decisions (the most important of them gathered here), in part a set of informal norms often difficult even for participants to articulate. It also is what I have come to call “the network” – the group of people, many of who were gathered in a windowless conference room at Planet Hollywood in Las Vegas last week listening to Gammage give voice to something I puzzle over: “Why is water different? Why is water special? Why is water so complicated?”

Rocks that haven't been above water since 1937. Boulder Harbor, May 1 2015, by John Fleck

Rocks that haven’t been above water since 1937. Boulder Harbor, May 1 2015, by John Fleck

It was an opportune time for the Pirates to convene. Five days before the conference Lake Mead – the great reservoir just down the road from Planet Hollywood that is a harbinger of the Colorado River’s fate – dropped to a record low level, less water than at any time since it was filled in the 1930s. Then on Wednesday, the Bureau of Reclamation told a gathering of the Pirates that odds of passing another critical threshold, one that would trigger shortages (especially in Arizona), was rising with the dwindling winter snowpack.

The last 16 years, Bureau of Reclamation Lower Colorado River manager Terry Fulp told his shipmates, has been among the driest stretches of this length in the Colorado River Basin in the last 1,200 years. “That should give us all pause,” Fulp said.

In fact, as Fulp pointed out, the massive storage in the system, dams that were filled when the drought began in the late 1990s, has served water users well. It was their purpose – to store water in wet periods for use in dry – and as a result water users downstream can still shower and grow alfalfa in the desert sun.

But the time of reckoning has arrived, to borrow from Morgan’s Pirate’s Code: “a scarcity … makes it necessary, for the good of all, to vote a retrenchment.”

The Southern Nevada Water Authority’s Colby Pellegrino put up a slide showing the latest work by her staff that shows that Lake Mead is likely to stay at low levels for a while, levels at which there is not quite enough water to meet all the current downstream demands. “Shortage,” she said, “is the new normal on the river.”

The “retrenchment” is possible, a new management regime in which the basic structure and function of communities downstream can share in this new normal, each in their way using less water while retaining that which they value most. But the Pirates need to get on it.


  1. Arrrrrr matey! 🙂

    the collective at this point is starting to get nervous? (may one person speak of this or does it need a vote? who are the mutineers? ground water over pumpers?)

    at this rate when do we hit bottom? does the grog get muddy? will LV still pump water back to the lake?

    yes, i’m full of questions this morning and i don’t know why?

  2. A declared shortage will just be another benchmark to reach, which has a defined protocol to follow. The Lower Basin is very attuned to the pecking order. The big step lies a formal call on the Upper Basin, at which point the 7.5 MAF, 75MAF on the ten year rolling average won’t be coming down. No one has delved very deeply on this other than to say that the Upper Basin would have to start curtailing post 1922 depletions. In a drought, coupled with data compiled in wet years, exacerbated by climate change, throw in the ESA, and the chances of a full supply making Lake Meade are getting slimmer. The Upper Basin States are concerned to the point that all of them are at least looking at means to increase their depletions making sure they receive their allotment. The chances of surplus water coming down is decreasing daily. It might be, they know something that no one else does. Pat Mulroy was innovative in the ways that she searched the largest area possible for solutions. She even looked, and identified accessible water, outside the Colorado Basin. The greater area that is involved the more likely workable solutions are found that won’t impair smaller segments. It would take a great deal of work technically and administratively to make solutions even probable. Eleventh hour hail Mary’s aren’t going to pass muster. Now is the time for someone in the know to turn on the crystal ball and let us know what is likely to be available at Lee’s Ferry in ten years.

  3. Honestly the west coast of California needs to spend the resources and time to build DESAL PLANTS. Its the best securest measure mankind has at his disposal if he is really such a control freak animal, and most likely survival instincts will kick in and build at what ever cost to secure itself. Fiat is of no concern since its created from nothing and is secured by the masses anyhow.

  4. Grady Gammage was president of Northern Arizona University from 1926 to 1933, and president of what is now Arizona State University from 1933 to 1959. Gammage Auditorium performance arts center on the ASU campus is named for him. The building was the last public commission designed by Frank Lloyd Wright.Surely the Grady Gammage referred to in this article must be a descendent.

  5. @David, San Diego is doing just that, but it will only satisfy 10% of their current water needs. Santa Barbara is restarting a mothballed plant. A desal plant is very expensive to build and run, and the concentrated salt has to be disposed of more intelligently than just dumping it in the ocean. Maybe Mr. Fleck will have an article about this in future.

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