The Colorado River: Coming to Consensus
The situation is true anywhere: when resources are stretched, tensions rise. In the arid Southwestern United States, this resource is water and tensions over it have been ever present since the westward migration in the 18th Century. Nowhere in this region has the competition for water been fiercer than in the Colorado River Basin. Whether it is more water for agriculture, more water for cities, more water for American Indian tribes or more water for the environment – there is a continuous quest by parties to obtain additional supplies of this “liquid gold” from the Colorado River. Sometimes the avenue chosen to acquire this desert wealth is the court system, as exemplified by the landmark Arizona v. California dispute that stretched for over 30 years.
Such antagonism, however, is not always the case. There are examples of vying interests negotiating solutions outside of the courtroom – one only need look within the Law of the River. The defining document of the Colorado River canon, the 1922 Compact, is just one example that illustrates consensus. At the same time the seven states and the federal government harmonized on how to allocate the river’s water, they established a source of conflict still being debated today.
“Quite simply, the Law of the River allocates more water than there is on any reliable basis in the river,” said Robert Glennon, a University of Arizona law professor. Glennon was one of many speakers who partook in the Water Education Foundation’s third biennial Colorado River Symposium held in January at Bishop’s Lodge in Santa Fe, New Mexico – the site of negotiations for the 1922 Compact. Two key groups of the Colorado River, the environment and some American Indian tribes, lack specific allocations of the Colorado River and have since made claims to the river’s water – fueling new debates over water rights. In essence, all agreements and disagreements on the Colorado River boil down to: who gets how much water.
The title of this year’s Colorado River Symposium, Coming to Consensus: Sharing the Colorado River, was premised on the idea that within the past decade – as evidenced by progress made on the California Water Use Plan for the Colorado River (4.4 Plan) and some environmental restoration programs – a greater effort at agreement appears to be taking place. Though taking a legal route is one way to settle discrepancies within this plan, litigation has been kept to a minimum with the emphasis instead on getting various stakeholders to the table in order to seek a conclusion that, if possible, meets with everyone’s satisfaction. If this premise is accepted, the question then becomes: How do we sustain consensus when dealing with delicate Colorado River matters? Other questions remain as well. How is consensus defined? Is consensus applicable to all disagreements? If not, when is it most appropriate?
This issue of Western Water provides an overview of Colorado River issues that may or may not be resolved through consensus. Some of these issues include the Colorado River Delta, endangered species, dam re-operation and potential future trends around the basin as they relate to the California 4.4 Plan, drought and governance. Much of the content for this article originated with the Foundation’s January symposium. A full proceedings of the symposium will be published this Fall.
NOTE: A complete copy of this 20-page magazine is available from the Foundation for $3. Visit our on-line store and add the March/April 2002 issue of Western Water to your shopping cart. Or, contact us by phone at 916-444-6240.
Those of you who know us well know that the motto of the Water Education Foundation is “We Can Do It.” We typically have multiple projects underway with a multitude of deadlines. Just one day after the September 11 terrorist attack, for example, we carried on with our first-ever Southern California Groundwater Tour.
But we did end up making the difficult decision last September to postpone our biennial Colorado River Symposium, which was scheduled for the following week. With air travel at a virtual standstill and security at water facilities at an all-time high, we knew it would just be too difficult for the stakeholders to join us at The Bishop’s Lodge in Santa Fe, New Mexico.
Rescheduling this special event proved to be more complicated than expected. Finally, we ended up at The Bishop’s Lodge January 30-February 1. But almost all our speakers and most of the original attendees adopted our can-do spirit and traveled with us to Santa Fe.
Once there, Mother Nature stepped in, providing a record snowfall the first day of our event – the evening we had scheduled a reception in downtown Santa Fe, seven miles away from the lodge. The winter wonderland that resulted brought out the stakeholders’ pioneer spirits as nearly everyone carpooled from lodge to reception, gazing with childlike delight at the large, fluffy snowflakes.
The snow provided a picturesque background for the historic lodge, site of the 1922 Colorado River Compact negotiations, as stakeholders from different viewpoints discussed important and pressing Colorado River issues such as finding consensus, solving the Salton Sea puzzle and how to resolve endangered species, water marketing and Indian water rights issues in the Colorado River Basin.
I think the snow added to that dialogue; it seemed like time stood still those few snowy days at The Bishop’s Lodge. The office and that to-do list seemed far away and the snow provided us a quiet time to reflect on these issues and added depth to both the organized panel discussions and the informal negotiating sessions.
This was our third Colorado River Symposium. It is designed as an invitation-only symposium; we carefully control the attendees and speakers to ensure equal representation among Lower Basin and Upper Basin states, federal officials, Indian tribes, environmentalists and others. We really do believe this helps bring people from different viewpoints together and helps advance collaboration on issues. But we do allow others access to these discussions by tape-recording the panel discussions and publishing a complete proceedings of the events. The book from this symposium will be available later this year.
In the News
Coastal Areas Seeking New Sources of Water
The quest of California’s coastal regions to acquire more water has always been a challenge. However, as the years have passed, demands on an already limited water supply have continued to grow with the increase in population. As a result, area water purveyors have been on a constant quest to obtain new sources of water for the region.
For a long while, desalination was ruled as too cost prohibitive – with an average price tag of $1,200 an acre-foot – to use effectively. But technology is never one to remain stagnant and advances in desal, particularly the membranes used for treatment, have dropped the cost to as low as $800 an acre-foot. This price reduction has prompted a number of coastal California water purveyors to seriously consider desal as a new source of water supply. The largest of those parties expressing interest is water wholesaler Metropolitan Water District of Southern California (MWD), which relies almost entirely on imported water for its supply.
Recently, MWD announced plans to supplement its water supply portfolio with 50,000 acre-feet of desalinated seawater and is hoping to see deliveries occur by 2007. MWD is currently reviewing a handful of proposals submitted by some of its member agencies, including the Municipal Water District of Orange County – itself dependent on imported water for half of its water supply. The Orange County district is looking to build a $130 million desal plant along the Pacific Coast Highway in Dana Point. Creating the new source of water for the Orange County district could reduce its reliance on imports by about 15 percent. As proposed, the plant could generate 27 million gallons a day – over 30,000 acre-feet annually. MWD has said it will pay up to $250 an acre-foot for potable desalted water as an incentive to the agency whose project is chosen.
Other cities, such as San Luis Obispo and Morro Bay, also are looking at desal as an alternative water supply. Morro Bay spent $3.9 million to build a desal facility during the drought in the early ‘90s but has left the plant off-line since 1995 because of an adequate water supply. A proposal now under consideration would more than double the plant’s current output to around 1,500 acre-feet annually as early as 2005. Similarly, San Luis Obispo has been considering building a desal plant as an alternative to building a pipeline to Lake Nacimiento and raising the dam on Santa Margarita Reservoir.
Still others are considering new options for acquiring wet water other than desal. A plan by one entrepreneurial company, Alaska Water Imports, would tap surplus flows on the Albion and Gualala rivers in Mendocino County. From there, the water would be pumped into enormous dromedary bags and towed via ship along the coast down to San Diego for use by the city. The proposal would claim 20,000 acre-feet annually and San Diego officials say they are interested if costs can be kept at or below $444 an acre-foot – the going rate for MWD’s water. The plan has generated some concern from local residents in northern California over the potential for environmental impacts and still requires approval from the State Water Resources Control Board.
A Conversation with Bennett Raley
Bennett W. Raley was confirmed as Assistant Secretary for Water and Science for the Department of the Interior on July 17, 2001. As assistant secretary, he is responsible for setting departmental policy and providing oversight to the U.S. Bureau of Reclamation and the U.S. Geological Survey. At the time of his appointment, he was serving as president of the Denver law firm Trout and Raley.
Raley attended and spoke at the Foundation’s Jan. 30- Feb. 1 Colorado River stakeholder Symposium held at The Bishop’s Lodge in Santa Fe, N.M., site of the negotiations for the 1922 Colorado River Compact. On January 31, Foundation Executive Director Rita Schmidt Sudman interviewed him about his views on some key western water issues.
This is an excerpt from that interview. The full interview is available in the March/April 2002 Western Water.
SUDMAN: The West is changing. There’s increased urbanization and less agricultural production. How do you see water law dealing with this change?
RALEY: With respect to the repeated refrain that our water laws are old and out of date or nonfunctional, that’s a proposition that I strongly dispute. I freely admit that there is nothing divinely inspired about the doctrine of prior appropriation or any aspect of water law. What they simply are is a method to allocate water if the demands exceed the supply. If you use a traffic law analogy, you can have a system where you yield to the right, you could also have a system where you yield to the left, but if you try to do both at once, you have a wreck. In the water allocation arena, if we started over with a clean slate, we could have a different system. There are other systems that could be applied. But we have to have one coherent system. The point is there is nothing inherently evil about the doctrine of prior appropriation. It is a rule to allocate shortages. What we see now almost uniformly is those who criticize the existing schemes, whether it be compacts, treaties or state laws, really are complaining because they don’t like the application of the outcome because the uses that they prefer are junior.
SUDMAN: Do you expect to see transfers of Colorado River between the Upper Basin states and the Lower Basin states?
RALEY: No. From a legal, political and social perspective, the best way to move water to the needs that have emerged in the last 50 years, really since the post-war boom in the West, is to work within the existing systems and the rights created within that system. That means that we need greater flexibility for market-based transfers. But that can’t go to the ultimate extreme because of the compacts. And I will be blunt. I think it is a fool’s errand to move towards or to work on things that involve a modification of the 1922 Compact for the simple reason that that will, without a doubt, result in decades of Supreme Court litigation that will move the debate to the judicial branch, the one where you have the least ability to have ongoing interplay and discussions.
One thing that we in the Administration want to do is to work towards enabling transfers within states, within Reclamation projects so that the market can function better than it has historically. We’re seeing a great deal of flexibility and innovation in the Lower Basin and in part that’s because the Secretary is the water master and there is not a Lower Basin compact. And I don’t mean that critically of the Upper Basin. The Upper Basin has chosen to address its issues in a different way. So I do not foresee, at least in this Administration, any productive dialogue about transfers between the Upper and Lower basin because of the existing law and the compact and the decrees.