The Colorado River District held its annual water seminar in Grand Junction last Friday. We were particularly interested in the session titled "What would an intrastate Colorado River Compact (ICRC) look like and how would it work?" Justice Gregory Hobbs moderated the panel which included State Senator Josh Penry, water attorney David Robbins and Eric Kuhn, general manager of the Colorado River District.
Historical basis
Part of the impetus behind the 1922 Colorado River Compact was the hope for mechanics that would allow the upper basin states to develop water at their own pace. Prior appropriation governs the distribution of water in the west. The usual winners in the prior appropriation game are the senior rights holders that put water to beneficial use first. Prior appropriation gives them the right to use the same volume of water, from the same diversion point, when it comes around again in a different water year.
In the early part of the 20th century California was well along in developing its water resources in the southern part of the state. They were eyeing the Colorado River for agriculture, industry and a growing population. The river was unpredictable, flooding some years and trickling to lower flows in others. The development of water was not federally controlled since the states have jurisdiction over the water inside their borders. The compact was possible because the U.S. Constitution gives states the ability to enter into contracts with each other.
According to Justice Gregory Hobbs the League of the Southwest met for a while in Washington D.C. in an attempt to hammer out an agreement for water for irrigated agriculture. The justice said that Herbert Hoover -- frustrated by the lack of progress in reaching agreement -- moved the negotiations to Bishop's Lodge, New Mexico, near Sante Fe, where they came up with the final agreement which was approved by Congress in 1922.
The main detail of the compact is the promise -- by the upper basin states -- to deliver 7.5 million acre feet of water per year at Lee's Ferry in a rolling 10 year average. The upper basin states cannot develop water and impact this average. Of course the devil is in the details but the upper basin states have always fulfilled their compact requirements.
The compact also divided up the water in the river, allocating a certain volume to each state. Since the calculations were made during a historically wet time the compact actually appropriates more than the available water in the basin most years. The upper basin states have not developed their allocations fully so the over-appropriation has not triggered any compact curtailments.
Justice Hobbs talked about the other compacts between Colorado and the bordering states. These contractual commitments limit Colorado to using only one third of the water that originates here. The rest of the water must go downstream to satisfy the requirements under the other compacts. He cited the case, Kansas vs. Colorado and the subsequent ruling by the U.S. Supreme Court which found Colorado in violation of the Arkansas River Compact. The debate around every proposed action in the Arkansas River Basin is under the shadow of that case. For example, the State Engineer's office is currently reviewing irrigation rules to make sure that efficiency won't cause a violation of the Arkansas River Compact.
So what would an intrastate Colorado River Compact look like?
The idea for a intrastate Colorado River compact was the brainchild of Russell George, the former Director of the Colorado Department of Natural Resources, according to Chris Treece from the Colorado River District. HB 05-1177, the Colorado Water for the 21st Century Act, set up the Interbasin Compact Committee and the 9 basin roundtables in 2005. The primary sponsor of the bill, Senator Penry, strongly feels that progress comes from cooperation and that Colorado has the mechanics in place to foster sensible policy.
In some ways it is easier to say what an ICRC will not be. First of all it will not be based solely on agricultural needs. Agricultural expansion is not discussed much in Colorado. In fact, irrigated agricultural lands have been decreasing for decades. Some of the water has been purchased by municipalities and industry and the use converted from ag. On the west slope agricutural water rights are being abandoned because the conditional rights were never perfected and there is no demand. The expansion of agriculture won't be a driving force. The preservation of existing agriculture may be. For example, the front range desires to move more water out of the Colorado River Basin to avoid ag dryups along the South Platte River.
Population growth would influence a compact. Most of Colorado's new population will land in the South Platte River Basin. The population growth is an accident of location. The front range has the jobs, industry, educational facilities and lifestyle to attract new residents. Any compact must take into consideration population needs. It is unlikely that a compact would be able to forestall this growth, cause it to occur where the water is or force the new water requirements to be satisfied solely from agricultural water in the South Platte River Basin. As Justice Hobbs said, the Colorado Constitution, "dedicates the water to the public". Since Colorado was carved out of the west by the capricious application of political boundaries -- the water statewide belongs to all Coloradans -- and the originating basin is of secondary consideration.
The Colorado River Compact, along with the various other agreements will also influence an Intrastate Colorado River Compact. The state cannot develop more water in the Colorado River Basin than is available under the compacts. Care must be taken to ensure that water is available to meet the various compact requirements. The west slope is well aware of where the squeeze will come -- in the event of a compact call by other states -- if the state has to decide between water for homes and water for agriculture. Agriculture will lose every time. Penry maintains that an ICRC will not be a 1 to 1 parallel with the original Colorado River Compact where each basin gets, "this and that." He sees the IBCC as the place where Colorado, "shares the pain...and facilitates negotiations between basins," for, "reservoir expansions and new reservoirs," while using the IBCC to, "build local and parochial projects."
The legal constraints in Colorado will also shape any intrastate Colorado River Compact. David Robbins said, "All good ideas need to have a firm legal underpinning." Therefore any ICRC must be grounded in existing water law and legal precedent or the legislature must step up with new statutes. The various river compacts between the states are possible because the U.S. Constitution allows for agreements between "sovereigns with the approval of Congress," he said. He told attendees that we, "really shouldn't be talking about intrastate compacts." The basin roundtables are not sovereign and have not been granted the legal authority to bind all the water rights holders within their boundaries. "If we want to have binding agreements," we must work through the legislature for statutorily enforcible compact authority, he said. Robbins added, "The legislature is going to have to take a heavy role." All parties (rights owners) would have to, "execute any agreement." Robbins feels that such an agreement might be impossible to obtain basin-wide.
Risk is another force that would shape an intrastate Colorado River Compact, according to Eric Kuhn, who added that, "The original compact was driven by risks." He cited the lower basin's desire to mitigate the risks of flooding and uncertain supplies. They entered into the Colorado River Compact largely for the right to build the Hoover Dam and other projects along the lower Colorado River. The upper basin states entered into the compact to mitigate the risk of not having water to develop as it was needed.
The front range risks drying up agriculture and agricultural economies to satisfy expected population and industrial growth. Many communities are dependent on diminishing groundwater supplies. The west slope, in addition to protecting agriculture, is facing increased water requirements from recreation (a major economic force), mining and energy development.
Energy development, primarily the "Next Big Thing," oil shale, is a huge risk. Developing this last reservoir of fossil fuel may take all of the remaining water in the Colorado River Basin, both to develop the resource and supply the electricity needed for production.
No one has an accurate calculation of the remaining water in the Colorado River Basin. The remaining water comes from many sources, including the San Juan River, Dolores River, White River, Yampa River and the Colorado itself. Rainfall variability year to year in those basins compounds the risk of calculating the remaining water.
Climate change must also be factored in. Vegetative changes in watersheds (i.e. Grand County lodgepole) must also be factored in. We, "don't know our obligations to Lee's Ferry in great detail," according to Kuhn. There is a lot of engineering to be done yet. He hopes that we will not screw up the Colorado River, "like we have others." He cited the Republican River, where the state has curtailed pumping severely, along with the Rio Grande, where irrigators are taxing themselves to enable the purchase of augmentation water to satisfy the Rio Grande Compact.
Kuhn asked, "Why not consider a three-way split," after we quantify accurately the remaining water in the basin? The split would be between in-basin needs, front range needs and energy needs. He proposes to, "re-evaluate in 30 years...since we'll know more about climate change, the science will be better and oil shale production requirements will be known." After 30 years, "We will have a much better idea of what we need to do to develop a compact strategy."
Current influences
Justice Hobbs closed the forum with a few comments on the realities that an ICRC faces today that were not around during the early part of the 20th century. We now have a, "federal overlay," including the Endangered Species Act, Clean Water Act of 1972 and the National Environmental Protection Act. We can't just dry up water courses willy nilly, even if water law gives us the right to do so. In addition there are state restraints such as HB 72-1041 that allow counties to regulate the impacts of water projects within their boundaries. The justice added that state water law is, "dynamic and does depend on communities working through the legislature." He mentions that the state now recognizes many forms of beneficial use that were not around in 1922, such as those for recreational in-channel diversions for whitewater recreation.
During the Q&A afterward the question of new storage was raised. Penry is pessimistic that any large projects will be built while acknowledging the need for more storage. Robbins tried to dissuade attendees from pursuing importation from other states, saying, tongue-in-cheek, "No state in the union is willing to give up even one gallon of water for the benefit of the great state of Colorado."
Another questioner asked, "Where are the environmental concerns?" Kuhn stated that, "We have to get meaningful protection for stream flows," along with settling recreation needs. He advocates establishing a baseline calculation for non-consumptive needs. The roundtables are working on this piece of the puzzle currently.
An intrastate Colorado River Compact only has to take into consideration energy development, non-consumptive requirements, a healthy agricultural economy, unbridled growth, new industrial and mining requirements along with energy generation. At least we're talking.
Category: Colorado Water
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