Water Wars: The Southwest’s Procrastination Comes Home to Roost

DILLON, Colorado – More than 60 years have passed since the Denver Water Board evicted the 800-plus residents of this former gold rush community and inundated the town they called home. Today, the Dillon Reservoir provides much of the water consumed by fast-growing Denver, some 68 miles to the east, and while few residents have living memories of the day Dillon was drowned beneath 220 feet of water, there is still resentment in the air.

“We’ve had a few lead scares in our local drinking water here, and that water doesn’t even come from our own reservoir,” said Marna Fletcher, a longtime resident, pointing out over the pristine 3,233-acre body of water that sits where her parents grew up. “They send all of Lake Dillon’s water to the city. We don’t get none of it.”

Like so much about water in the American West, the 84 billion gallons sitting in Lake Dillon stir controversy. Summit County, home to working-class Dillon as well as international ski destinations, like Vail, Breckenridge, and Keystone, is no happier to ship its water to Denver than Colorado lawmakers in the Denver statehouse are about supplying California, New Mexico, or Arizona. Worse still, decades of taking the river’s seemingly bottomless munificence for granted have left in place a hodgepodge of ancient laws, assumptions, and precedents that make reasonable compromise devilishly hard.

For years, conservationists, policymakers, and hydrologists have warned that the 1922 Colorado River Compact governing how the vast basin’s water resources are shared no longer reflected reality. The compact, part of what is known as “the Law of the River,” has failed to keep pace with population growth, water-hungry agribusinesses, mining, and power stations, as well as changing attitudes toward the environment. Conflicting demands from Native American tribes, fishermen and hunters, developers, ranchers, and nuclear power plants seem impossible to square. “Senior water rights,” based on the legal doctrine of “temporal priority” dating to miners’ claims in the 1849 California Gold Rush, give ranchers, politicians, and investors whose claims pre-date the 1922 treaty nearly unassailable leverage over water rights inside Colorado’s borders, and many of them have little or no interest in watering lawns in Colorado Springs, Boulder. or the Denver suburbs.

SIDEBAR: The 1922 Colorado River Compact
The math was wrong from the start.

When the treaty that governs the distribution of the Colorado River’s water was signed in Santa Fe in 1922, New Mexico and neighboring Arizona were celebrating their 10th year of statehood. Herbert Hoover, then secretary of the Commerce for President Warren G. Harding, presided over the signing of what became known as the “Law of the River,” officially the Colorado River Compact of 1922. Testifying before a congressional committee in 1926, he predicted the treaty would guarantee equitable distribution of the river’s bounty even if the region’s population – then about a half million ­­­– were to quadruple.

With many twists and turns involving the U.S. Congress and Supreme Court, the basic structure of the compact remained intact for a century. The 1922 treaty, ratified by Congress, formalized a system of “senior” and “junior” water rights that gives great power to the descendants of the settlers, ranchers, and other early European residents of the region whose claims remain “senior.” Native American tribes, who under such a system might be assumed to have the most “senior” rights, were cut out of the deal, dismissed by Hoover who used the term “wild Indian.” Congress and lawsuits have rectified that to some extent today, but by and large the wealth of the region’s water remains in the hands of landowners generally located far from where the water is so desperately needed.

Today, with about 40 million people and some of the most important agricultural land in America dependent on the river, the 1922 assumptions about the river’s flow look wildly optimistic. But for the better part of a century, the Law of the River held sway. Put simply, the 1922 compact divided the Colorado River Basin into an Upper Basin (Colorado, New Mexico, Utah, and Wyoming) and Lower Basin (Arizona, California, and Nevada), providing each with 7.5 million acre-feet (AF) of water. The Upper Basin states, then little more than outposts in a region dominated by California, agreed to deliver the entire 7.5 million AF due to the Lower Basin before they claimed any water for their own use.

The formula might have worked had the 1922 calculus that estimated the Colorado’s total flow been close to accurate. Assumptions that the Colorado River delivered about 18 million AF annually turned out to be far off base. Since 2000, the U.S. Bureau of Reclamation estimates the true figure has averaged 12.3 million AF. The Southwest region, currently about 81 million people according to the U.S. Census Bureau, will add 54 million new residents by 2040, an expansion of some 66%. Next to these numbers, the Lower Basin states’ proposal to forgo about 14% of their allotment through 2026 is literally a drop in the bucket.

Do the math.

Wrong by half

At the core of these problems is faulty math. The treaty’s drafters made wildly generous assumptions about rainfall, snowmelt, and the size of the Colorado River’s annual flow. They also failed to anticipate long-term ecological trends, including the two-decades-long megadrought that has produced the driest conditions in the American Southwest in more than 1,000 years.

Now, the reckoning is here. Despite record rainfall and snowpack in parts of the region, and a “mega-bloom” that has some Californians skipping through rare mountain meadows of springtime flowers, the Colorado River and the myriad reservoirs and dams built over the past century to tame it can no longer meet the growing demands to tap its waters. Even after this winter’s torrential rainfall, the region’s two largest reservoirs, built in the New Deal era to supply, irrigate, and power fast-growing California, are still in danger of reaching dead pool status in the next decade. In effect, that means the reservoirs would dry up to such an extent that their huge hydroelectric turbines could no longer supply power to the region.

As of late May, Lake Powell, created by the Glen Canyon Dam on a stretch of river between Utah and Arizona, is just 31% full. Its waters are a vital source of drinking water and power to large cities, like Los Angeles, San Diego, and Phoenix, not to mention 34 Native American tribes, thousands of smaller communities and the Golden State’s $51 billion agricultural economy. Lake Mead, formed by the Hoover Dam farther south where the river forms the Arizona-Nevada border, is in even worse shape at only 23% of its capacity. Las Vegas derives 90% of its water from Lake Mead, and its health is directly affected by the challenges upstream at Lake Powell. While both have improved from 2022 levels, long-term improvement remains uncertain.

“The river has been overtaxed for virtually the entire period since the Colorado River Compact was signed over a century ago, and that is only going to become more severe,” said Jason Robison, a professor at the University of Wyoming School of Law and author of Cornerstone at the Confluence: Navigating the Colorado River Compact’s Next Century. “There are difficult challenges and decisions ahead, and I don’t think the current round of talks has even scratched the surface. There simply is not enough water to meet everyone’s demands, let alone preserve or reclaim the region’s environment.”

After several years of fruitless intrastate negotiations, the three Lower Basin states (California, Nevada, and Arizona) have proposed that they forgo about 14% of their annual allotment of 7.5 million acre-feet of water. In exchange, the three states propose that the federal government devote $1.2 billion from the Inflation Reduction Act to compensate farmers, municipalities, and tribal groups. In effect, farmers would be paid to keep fields fallow or deploy conservation techniques.

The Lower Basin agreement was prompted by a threat: Washington, in the guise of the Interior Department’s Bureau of Reclamation, in April warned that should the Lower Basin states fail to reach an agreement, the federal government would impose cuts equally across the board, an approach that would look a lot like the approach favored by Colorado, Wyoming, Utah, New Mexico, Arizona, and Nevada.

But California has a trump card. In 1968, following an earlier decision by the U.S. Supreme Court setting water allotments for the three Lower Basin states, Congress passed the Colorado River Basin Project Act, which ensures California its full allotment of water in times of shortage. In effect, the act, pushed through with the help of California’s enormously powerful House delegation, assigned the state senior water rights over all the states upriver. Arizona, most at risk from this precedent, faces the prospect of losing half or more of its annual water flow if California were to enforce this provision to its fullest. That has never happened, but in statehouses and governor’s mansions all along the river, an important question looms: If the megadrought persists – and scientists believe it will – would upstream states consign their own taxpayers to severe drought conditions for the sake of California?

No reprieve from Mother Nature

For those treated to wall-to-wall coverage of the “atmospheric rivers” that swept through California and parts of the Mountain West last winter, all this may sound odd. Average snowpack in the Sierra Nevada and Rocky Mountains is well above average – in some cases at record levels – thanks to winter rains that have many communities worried less about drying up than being washed away. Instagram is resplendent with photos of arid landscapes that burst into bloom this spring in California, Nevada, and Arizona. This alarms some water experts, who fear that with restrictions on mundane tasks, like washing cars and watering lawns, being eased in California and elsewhere, the public will forget that the long-term prognosis remains grim.

“The Lower Basin Plan is quite narrow,” said the University of Wyoming’s Robison, noting that it relates mostly to what water will be drawn from the two huge and ailing reservoirs, Lake Powell and Lake Mead, and not on the reality that the river simply cannot keep up with demand. “Its focus is on climate change-driven adaptations to reservoir operations. That focus is timely and compelling – and where the vast majority of attention (media and otherwise) is being paid – but there are, of course, a host of other water management issues left untouched by the reservoir-operations focus.”

It's also a field day for climate deniers. There “is nothing like a good crisis to keep things liberal, especially in eco-friendly California,” John Horvat II writes in an article titled “California’s Fake Water Crisis.” Horvat, a Pennsylvania resident and self-described “scholar, researcher, and educator,” derives his expertise on drought from his job as vice president of the American Society for the Defense of Tradition, Family, and Property. Nonetheless, in this era of gatekeeper-free publication, the 11,500 followers of his Twitter feed get the unfiltered flow.

Despite such backwash, the Southwest’s megadrought is a fact, and it runs deeper than a season of heavy rain or snowpack. Whether the data are scientific or anecdotal, they point to a deepening problem for one of the fastest growing regions of the United States and a global agricultural breadbasket. A December article in the journal Nature reported severe depletion of underground aquifers in the region due to groundwater pumping to replace absent rainfall and snowmelt over the past two decades. In three periods of particularly acute drought since 2004, underground aquifers lost nearly one and a half times as much water as Lake Mead can hold. To simplify the implications somewhat, California’s Central Valley grows 25% of the food consumed in the United States, and during periods of drought, the valley relies on underground pumping for more than two-thirds of its irrigation needs.

Back on the Upper Basin, a degree of schadenfreude prevails. In Wyoming, the northernmost outpost of the river basin and by far the smallest in population, Gov. Mark Gordon, a Republican, has promised to store more water for his state’s needs rather than see it flow toward bluer states downstream. Gov. Jared Polis of Colorado, a Democrat, is no California basher. But he joined six other upstream states in the plan that would impose new cuts on California, coyly noting that “although we did not cause this crisis, I am proud that Colorado is part of the solution.”

Polis and Gordon both know the peril of getting water wrong. Colorado’s population grew by nearly 20% since 2010 and nearly half of the state, despite receiving some of the West Coast’s moisture this winter, remains in conditions rated between “abnormally dry” and “severe drought” by the National Drought Mitigation Center at the University of Nebraska-Lincoln.

“There’s a cultural tendency toward parochialism in Wyoming when it comes to natural resources, and related to that, a certain Western view on federalism when it comes to state vs. federal water management,” said the University of Wyoming’s Robison. “But it’s more of a resentment than obstructionist. It’s not going to create the same degree of drama that Arizona and California have created in the Lower Basin.”

From atop the Colorado Rockies, where the river’s water begins, it’s hard not to blame state leaders for being a bit parochial. Such issues as crime, housing, and taxation rank high on the list of voter concerns in Colorado, as in most states. But all take a back seat to water at the moment, said Colorado House Speaker Julie McCluskie, a Democrat.

“We know that, for far too long, the Lower Basin states have exceeded their use and the amount of water we have available to supply the Western half of the United States,” McCluskie said. “We need to have conversations that are difficult, whether it’s around usage, whether it’s around next steps in conservation, or tactics that communities have to embrace to protect our resources.”

On the shores of Lake Dillon, that is music to many ears.

Read: Part II of Water Wars: Downstream Thirst: Farmers, Miners, and Native Tribes