By Eric Kuhn

One of the central themes of last week’s Colorado River Water Users Association annual meeting was the was the role of the basin’s Native American Tribes in the many decisions that will guide and manage water use on the Colorado River over the next several decades (for example, the post-2026 Guidelines). CRWUA attendees heard a report on the Water and Tribes Initiative co-facilitated by Matt McKinney and Daryl Vigil.

Tribal Water Study

While our book, Science Be Dammed, is primarily about the science (hydrology) of the river – What did we know, when did we know it, and how did we use it? – the research John Fleck and I did has given us some interesting insights on the how the basin states and federal agencies that dominated the development of the river viewed the water needs and rights of the Tribes.

Those familiar with the Law of the River know that the 1922 Colorado River Compact addressed the Indian questions with a single sentence.  Article VII states “nothing in the compact shall be construed as affecting the obligations of the United States of America to Indian Tribes.” The provision was put in the compact at the insistence of Chairman Hoover.  His original suggested language was “nothing in the compact shall be construed as affecting the rights of Indian tribes.” The minutes give scant reason for the language change that Hoover himself suggested. (Hundley, Water and the West, pages 211-12).

Based on the compact minutes and Hoover’s 1923 report to Congress, he considered the federal obligations to Indians as similar to future treaty obligations with Mexico. He considered both as core federal interests. Before the compact negotiations began, Mexico requested that it be formally represented on the commission. At the request of the State Department, Hoover responded that the compact was solely a domestic matter, but Mexico need not worry. Its rights could be determined by a treaty and “such treaty rights” he noted “will override interstate arrangements” (Hundley pages 175-6). During the negotiations Hoover cautions that without Article VII, Congress would include a reservation to protect tribal rights under treaties (Minutes of the 21^st Meeting). In his analysis of the compact for Congress he notes that the provision disclaims “any intention of affecting the performance of any obligations owing by the United States to Indians” and “it is presumed the that the States have no power to disturb these relations” (The Colorado River Compact: Analysis by Herbert Hoover, January 30, 1923, answer to question #24).

In Water and the West, Hundley is critical of the commission, concluding that “no attempt was made to discover how many Indians were in the basin and what their water needs were. The Commission simply assumed that the water rights of Indians were ‘negligible'” (pages 211-12). Here, as with our message in Science Be Dammed, reality is more complicated. While there is no reason to disagree that the commission assumed the rights were negligible, the available technical reports suggest that, at least in the Lower Basin, the future needs of Indian tribes were well recognized and far from negligible. The 1922 Fall-Davis Report, the Reclamation Service report that shaped both the compact and the 1928 Boulder Canyon Project Act, identifies over 140,000 acres of tribal lands adjacent to the river below Hoover Dam that could be irrigated, including the Colorado River Indian Tribes and Ft. Mojave Projects, very similar to the Indian rights that were finally adjudicated in Arizona v. California.

The conclusion of the recently completed Tribal Water Study that the water rights of the tribes exceed 2.9 million acre-feet might have surprised some, but it should not have. By 1944, when the Bureau of Reclamation’s comprehensive report on the development of the Colorado River was being finalized, the Bureau of Indian Affairs identified existing and future Indian projects that would divert (not consume) over three million acre-feet per year of water, including over 800,000 acre-feet in New Mexico (Proceedings of the Committee of 14/16, November 10-11, 1944).  Because it acknowledged that Indian rights would be “superior” to non-Indian rights, the Upper Colorado River Basin Compact Commission gave New Mexico an 11.25% share of the Upper Basin’s apportionment (New Mexico provides <2% of the river’s yield) so that it would be large enough to cover the future needs of its Native and non-Native Americans.

For most attendees, the convention’s attention to the basin’s Tribal needs was a welcome and perhaps overdue step. The message I heard was that the basin’s Native American communities are fully engaged and expect that they will be given the opportunity to meaningfully participate in the decision-making processes that will shape the future of the Colorado River.  In his remarks, Secretary Bernhardt appeared to offer them a seat at the table. Even so, history suggests, they will still have many challenges ahead of them.

The Boulder Canyon Project Act, carved in stone

Touring Hoover Dam Friday afternoon, a friend deeply embedded in the “Law of the River” asked if I knew that Section One of the 1928 Boulder Canyon Project Act was carved in stone on one of the Dam’s iconic towers:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That for the purpose of controlling the floods, improving navigation and regulating the flow of the Colorado River, providing for storage and for the delivery of the stored waters thereof for reclamation of public lands and other beneficial uses exclusively within the United States, and for the generation of electrical energy as a means of making the project herein authorized a self-supporting and financially solvent undertaking, the Secretary of the Interior, subject to the terms of the Colorado River compact hereinafter mentioned, is hereby authorized to construct, operate, and maintain a dam and incidental works in the main stream of the Colorado River at Black Canyon or Boulder Canyon…. (emphasis added)

The carving (or maybe it’s cast concrete? further research needed) sits atop the Nevada side elevator tower, and as we were finishing our tour, we lingered on top of the dam, thinking about the implications.

I apologize for the picture. The light wasn’t great. I tried going back early Saturday morning, hoping sunrise light would highlight it better, but alas I think I need to return in spring or summer, when the rising sun might cast the shadows that would better highlight this institution carved in stone. (I do not view a need to return to Hoover Dam as a problem.)

I’ve got a couple of working titles for the next book on which I’m starting to work. “The Ghost of Water” has been my go-to in the last few months as I begin to sketch out the ideas, but as I toured the dam with old Colorado River friends Friday I added one to the mix: “Hoover Down“.

The idea is that we create institutions, and then those institutions shape the land. In between institutions and land sits Hoover Dam.

By “institutions” here I mean not government agencies, but the more expansive definition we teach University of New Mexico Water Resource Program students:

Institutions – the rules of the game, both formal and informal, that both liberate and constrain behaviors in repeated interactions

It’s wonky language, and it took me a while to get my head around the distinction between this expansive definition and the more traditional “institution = government agency” idea. At Hoover Dam, the institution in question is in significant part the Boulder Canyon Project Act of 1928. (The more traditional idea of what people mean when they talk about institutions, the Bureau of Reclamation, is in this case the tool we use to carry out the rules written down by Congress in 1928.)

In retrospect, there’s a thread in the three books I’ve written that leads in this direction:

• The Tree Rings’ Tale, written for kids, was mostly, “Hey, science about water, how cool is that?”
• Water is For Fighting Over tackled the interplay between the “formal” and “informal” parts of the definition of institutions, and the operation of “the network”. It’s my attempt to make sense of the institutions.
• Science Be Dammed, thanks to the remarkable insights of my co-author Eric Kuhn, brought the science and the institutions together in a way I think frankly has never been done for the Colorado River.

Hoover Down

During our tour Friday, the kind folks at the Bureau of Reclamation took a group of us down on the power plant floor, where in our post-9/11 world tourist tours no longer go. Standing amid the massive generators on the Arizona side, it was weirdly quiet. There was very little water flowing through Hoover Dam. Why?

friends with the keys gave us a tour of the place

Part of the reason is the changing nature of the power grid. Hydroelectric power plays an increasing role in filling in behind renewable resources when they go off line, so Hoover’s generators tend to ramp up when the sun sets in California.

But part of the reason involves the shifting nature of water management uses and rules downstream. There is simply less water moving through the dam than there used to be. The complex tangle of rules – institutions – is successfully encouraging folks downstream to bank their water in Lake Mead rather than taking it out and spreading it across the land.

Mexico’s water agency notified the U.S. government that it wanted to cut its releases this month and store water in Mead, something that would have been impossible under the rules ten years ago. As I’ve written before, the Metropolitan Water District of Southern California will take less water out of Mead in 2019 than it has in any year since the 1950s.

The result is that the Bureau’s current operating plan calls for releasing just 225,000 acre feet of water from Lake Mead in December 2019. I went back through a decade of USBR records (more research clearly needed, this is fascinating!) and that is by far the lowest December release I found.

The idea behind “Hoover Down” is that the dam acts as a funnel that translates rules into moving water. Downstream, that water spreads out across the landscape. As the rules change, the volume of water flowing through the dam changes, and the landscape from Hoover down – not just the river corridor itself, but all the places beyond that use its water – changes as well.

There are a lot of places I could tell this story. I’m thinking about “Hoover Down” in significant part because of my love for that part of the Colorado River Basin – the basin of my childhood.

CRWUA – hitting “pause”

Friday’s tour was a coda to last week’s meeting of the Colorado River Water Users Association. Rules were the primary focus of the discussion, and a part of the work for “Hoover Down” will involve a close examination of the work over the next “n” years on a new, or newly revised, set of rules for how much water enters and leaves Lake Mead. The value of “n” itself is an interesting uncertainty in the whole thing. This book may take a while.

It was a “no big news” CRWUA, the kind where I was glad I wasn’t a beat reporter any more having to gin up a quick story. Ian James (who also joined the tour) turned a nice daily that focused on the key element. Rather than quickly going on to the next phase of “Law of the River” negotiations, Interior is hitting the “pause” button for a year long review of how the current river rules are working.

Speaking on the day’s final session, Interior Secretary David Bernhardt emphasized some interesting points, including the need for the next round of “Law of the River” negotiations to include Native American and environmental NGO interests. An Interior Secretary CRWUA speech is about signalling – that was a particularly important signal. How it translates into action remains to be seen, but the marker has been very publicly placed on the board.

As I think back to book two in “the series”, about how the network functions both formally and informally, I’m intrigued by the way the pause creates some space for informal discussions about what folks want the next round of rule discussions to look like and include.

Preparing for a panel I’ll be moderating at next week’s Colorado River Water Users Association meeting on the next steps in negotiating river management rules, I went back to a similar panel held last summer at the University of Colorado’s Getches-Wilkinson Center. (the session starts at around 3:23:00 here)

Lake Mead’s “bathtub ring”

John Entsminger of the Southern Nevada Water Authority offered a concise summary of the questions to be resolved (John’s comments, short and worth a listen, begin at about the ~3:34:00 point on the video linked above). Among them:

• the “structural deficit”, in which Lower Basin water users taking their full legal entitlement remove more water from Lake Mead than flows in
• California’s seniority over Arizona under the Colorado River Basin Project Act of 1968 (this is the bit where, under shortages, the Central Arizona Project canal to Phoenix and Tucson could get cut to zero while California still is allowed to take a full supply)
• the Upper Basin’s legal obligation to deliver an average 7.5 million acre feet at Lee Ferry (or maybe 8.25maf) even as climate change shrinks the river

John’s list includes other bits as well (those interested in what happens next on the river are encouraged to watch the video). But the three bullets are important because there are some folks who are beginning to argue for a litigation approach. Clearly, the argument goes, a proper interpretation of the Law of the River favors “us” on this important question (where all values of “us” have a  legal argument for why they will win such a dispute).*

Eric Kuhn and I, in the conclusion of our new book Science be Dammed, think such litigation is unlikely because the principals understand what a terrible idea it would be: