Negotiators dig in to protect upper basin users of Colorado River

LOVELAND — Colorado’s commissioner on the Upper Colorado River Commission has dug in. She will insist upon equity — the guiding principle of the 1922 Colorado River Compact — in negotiations with the lower basin states of California, Arizona and Nevada.

“First and foremost, we want to protect existing uses. We honor the compact with (its call for) equity. Lower basin uses should not be viewed as more important than upper basin uses,” Becky Mitchell said, her voice rising.

Mitchell was one of five members of a panel discussion at the Fall Water Symposium, an annual event organized by the Northern Colorado Water Conservancy District and held Wednesday at the Embassy Suites Hotel and Conference Center in Loveland. Members of the panel included commissioners from Colorado and Wyoming, the executive director of the Upper Colorado River Commission, an attorney and the Colorado River program manager for Northern Water. Brad Wind, general manager of the water district.

“There’s a supply-and-demand imbalance, and there’s only one part of that we have control over, and that’s demand. You (the lower basin states) get down to your apportionment (of the river water) and we’ll talk about ‘skin in the game,’” she said.

As previously reported, the issue with declining flows of the Colorado River due to climate change has come to a head because the lower basin states overconsume what’s available and well beyond the split of the river envisioned by the compact. 

The compact designated 7.5 million acre feet of the river water for the upper basin states of Colorado, Wyoming, Utah and New Mexico, and 7.5 million acre feet for the lower basin states of California, Arizona and Nevada. A 1944 treaty with Mexico designated another 1.5 million acre feet to Mexico. Tribal nations also claim shares of the river.

But Mother Nature produces far less than that, and increasingly less as climate change takes hold.

Over 75 years, the average annual river flow has been 13.81 million acre feet. 

Complicating the equations is that the upper basin states have relied upon hydrology to determine how much each water user will receive each year. Low supply results in less water released for agriculture or municipal uses. The lower basin, however, has relied upon river flows plus what has been stored in the major reservoirs of Lake Powell and Lake Mead. Drought or not, consumption continues unabated.

“In our part of the basin, we shut people off every year,” said Brandon Gebhart, the Wyoming state engineer.

In reviewing the history of the river, attorney Bennett Raley with the law firm Trout Raley, said that modern history divides the river into three periods — the compacts/treaty period, the development of reservoirs period and the modern era, which he traced back to Secretary of the Interior Bruce Babbitt, 1993-2001. 

“In the ‘90s, people grappled with the fact that California was using more than its 4.4 million acre feet. … Babbitt put in place carrots and sticks for California to get down to 4.4. From that period, the next major step was the guidelines. By that time, people knew that the drought was there. … Those guidelines have been in place, and they are up for renewal. The trend is unmistakable. The drought continues. The contingency plans are widely considered inadequate.

“What is before us are two things: The short-term steps (such as conservation measures), but last year, the lower basin lost interest, and the Department of Interior backed off. The upper basin has focused efforts on renewal of the guidelines,” Raley said.

Raley said that from his perspective, the upper basin states will need to be ready to file lawsuits to enforce the compact. 

“Unless you’re prepared to sue, the historic consumptive use can’t be sustained by the hydrology. The lower basin is incredibly sophisticated and relentless and is absolutely dedicated to protect its constituencies. If the lower basin believes that the upper basin won’t move to litigation” it won’t seriously negotiate, he said.

Chuck Collum, the executive director of the Upper Colorado River Commission and formerly a negotiator for Arizona in its battle with California over shares of the flow, said lower basin negotiators typically don’t care about what the upper basin might require. 

He said a program that the federal government approved to spend federal dollars to incentivize voluntary conservation programs received some response in the upper basin, but not enough to make a meaningful reduction in river use. 

Only 88 people across the four upper states signed on, and they jointly reduced consumption by 38,000 acre feet. 

“Programs are always complicated and always messy and they are generally small. Big corporate enterprises (which could have a larger impact) are not how the upper basin works,” he said.

Mitchell said upper basin water users were interested in helping reduce consumption, “but their willingness was limited by what they perceived that conserved water went to. If it went to propping up the lower basin, that’s a hard pill to swallow,” she said.

People were willing to bite the bullet, she said, but were reluctant to then see that water go downstream where it would continue to be overused.

“There are heavy economic drivers in the lower basin, but that’s not what this is all about. 

When Bennett (Raley) said that they (the negotiators in the lower basin) are relentless, so is your commissioner, so is Wyoming’s commissioner. We can’t just go along because it’s the nice thing to do. We have a responsibility to protect the users in the upper basin. We were put in these roles to defend our states, and therefore we defend the river, and common sense is the key. More (water) is going out (of the river) than coming in 80% of the time. That’s kindergarten math.”