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The Colorado River Compact turns 100 years old. Is it still working?

On a cool fall day, Eric Kuhn walked along a gravel path above the Colorado River in Glenwood Springs, Colorado. The former head of the Colorado River District, a water agency based on the state’s west coast, stopped where one of its tributaries, the Roaring Fork, joined the river, creating a two-tone beige and dark brown stream at the confluence.

“About a third of the water that originates in the Colorado River can be traced back to this site,” Kuhn said. The river is fed by melting snow that collects on the high peaks of the Southern Rocky Mountains each winter.

“When I think of rivers, I think of where does the water come from and where does it go?” said Kühn. “And what has become of this river in the last 100 years?”

In 2021, Kuhn was a co-author “Science is contained” with his colleague John Fleck, professor of water policy at the University of New Mexico. The book is a detailed examination of how the river’s founding agreement – the Colorado River Compact – came about a century ago.

The legal document will be 100 years old this November. The agreement between seven Western states to manage the river’s waters was groundbreaking for its time. But the anniversary of its signing, November 24, 1922, comes as the river faces what is arguably its most pressing crisis. Water supplies are shrinking due to warming caused by climate change. Water demand has yet to decrease to cope with the drier conditions. The river’s largest reservoirs are sinking to record lows and are expected to sink further.

And that fact causes those grappling with river shrinkage to ask: What benefit does the Colorado River Compact still bring to the region’s water users?

“Mastering Nature”

At the turn of the 20th century, European settlers moved to some of the country’s driest areas, spurred by government land incentives. The Southwest developed rapidly, but one thing was missing – a stable water supply. The river’s currents were extreme, rapidly changing from flood to drought.

As flooding hit Southern California’s farming communities, new residents began to view the river as a threat, “and a political movement arose to control the river, this wild, raging river,” Kuhn said.

This political climate eventually spurred the leaders of the fledgling western states of Colorado, Wyoming, New Mexico, Utah, Arizona, Nevada, and California to consider the river as a problem to be solved.

“We had to control nature. We had to find a way to turn this flow from a threat to a natural resource to something people can use and rely on.”

Fears about California’s population growth from those in the upper reaches of the river also contributed to the political climate needed for a Colorado River Agreement to coalesce. If left unchecked, they reasoned, California could end up controlling the entire river and leaving every other state fighting for what’s left.

This mindset—the need to control nature—and this jumble of fears brought state and federal leaders to Santa Fe in 1922 to negotiate the treaty. It divided the river’s water between an upper and a lower basin, promising each basin a fixed amount to use. Each was allotted 7.5 million acre feet per year. The Pact failed to provide water for the country of Mexico or the region’s Native American tribes. Kuhn says the negotiators preferred political expediency to science.

“If everyone agrees that there is enough water to meet our needs, it will be very easy to divide it up,” he said. “If there isn’t enough water, it leads to complications.”

An inflexible document

The gap between the river’s supply and demand was seared in from the start, said Kathy Jacobs, a professor of water policy at the University of Arizona. Since the signing of the Colorado River Compact, a complex legal framework of agreements, court decisions and laws has been built on it. But it remains the basis of river management.

“We’re 100 years later and obviously our priorities are different than the priorities of the people who existed then,” Jacobs said.

The priority at the time was irrigation water for the small farms in the Southwest and electricity provided by large dams, she said. The people negotiating the pact — all white men, mostly engineers, lawyers, and politicians — didn’t think about what a future Phoenix metro area might need or how their decisions would impact the Grand Canyon’s ecosystems.

The pact put a fixed amount of water on paper and failed to account for its variability, Jacobs said. As the climate warms, the pact gives a false sense that the region will return to some sort of normalcy.

“I don’t think it’s particularly flexible, and we’re in a situation where flexibility is probably going to be key,” Jacobs said.

With more water on paper than the river itself, its largest reservoirs — Lakes Mead and Powell — continue to sink to record lows. Current conditions have made 2022 a somber year for the Colorado River Compact’s anniversary celebrations. This summer Federal officials called on the heads of state to agree to an unprecedented level of protection to bring the system into balance. Those talks stalled, and tensions between the states increased over the summer. Upper Basin Guide shift the blame downstream, while use in California has come under renewed scrutiny from users across the watershed. The acrimony among states and the failure to agree on the conservation measures needed prompted federal officials to step in and begin Offer instant payments to farmers to curb their use.

Cautious optimism

Heather Tanana, a law professor at the University of Utah and a citizen of the Navajo Nation, said the compact also shows how indigenous peoples and their interests have been excluded from river management over time. Some of Tanana’s work is funded by the Walton Family Foundation, which also supports KUNC’s Colorado River reporting.

“For many tribes, water is not a commodity. It’s something sacred. It’s something that’s essential not only for human life, but also for the wider community and the well-being of the environment,” she said.

Together Tribes have rights on more than 20 percent of the river’s water. But it is only recently that the federal states and the federal government have taken the demand for a headquarters at the negotiating table seriously.

“This has been a shift in the last five years in the recognition of tribal interests, their legal rights and beyond that tribes can be a part of the solution,” she said.

It’s unclear whether the river’s current legal structure can fully accommodate tribal perspectives, Tanana said. Ditto for other voices that were left out of early river management talks, such as those from environmental and recreation groups. That’s why, Tanana said, she doesn’t scoff at people who advocate throwing out the powder compact altogether.

“Can we realistically jettison the last 100 years of the River Law and the Covenant and start over? Probably not,” she said. “But when you think about discarding the flow, it prompts you to go through an analysis, ‘Well, what works? What does not work?'”

As the gap between supply and demand widens and the unprecedented nature of the current crisis becomes more apparent, Tanana says water leaders in the region can adopt more innovative ideas to solve it.

“I’m cautiously optimistic that we’ll get there, but I think we have to be very creative with how we think and not stick with something just because it was agreed 100 years ago,” Tanana said.

So why would anyone want to continue using the Colorado River Compact, for all its storied history and shaky scientific foundations?

Kevin Wheeler, a river management fellow at Oxford University in the UK, said more and more water leaders are choosing to simply ignore some of the finer details of the pact. renegotiation of the contract a non-starter for many heads of state. More recent agreements show a certain willingness to voluntarily reduce overall water consumption without tinkering with the contract itself.

“While no single state wants to take the hit, everyone recognizes the need to take the hit together,” he said. “Certainly the numbers written in the Pact need some polishing and rethinking.”

Tearing it up would be almost impossible, he said. The region has become too dependent on it. He says the best way forward is to live with less water. People will end up with no choice but to ignore the pact’s fanciful promises.

“What’s been said a lot is that we’re not going to get rid of it,” he said. “But we might have to fucking take care of it to make it work.”

This story is part of ongoing Colorado River coverage produced by KUNC and supported by the Walton Family Foundation.

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