WATER WARS, Ch. 5, Law of the (Colorado) River

The U.S. Department of the Interior Bureau of Reclamation has presented a summary sheet concerning eleven of the formal laws governing the Colorado River: [https://www.usbr.gov/lc/region/g1000/lawofrvr. html]. As we note next, much of these have as their basis the historical application of the principle of “prior appropriation.”

At another valuable site, the Colorado River Water Users Association (CRWUA) details the history of water usage rules and regulations, the Law of the River [https://www.crwua.org/colorado-river/uses/ law-of-the-river].

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An article by the National Agricultural Law Center (NALC, 1997; http://nationalaglawcenter.org/overview/water-law/) presents three approaches to determining the allocation/ownership of surface waters: riparian law, prior apportionment, and hybrid.

Riparianism

Riparianism limits the use of water to the owners of the land in contact with it, and the use must be “reasonable.” Significantly, non-use does not extinguish the right. Most states now use a permit system to allow riparian uses that consume water, and the quantities and timing of the withdrawal may be limited, as well as the duration of the permit.

In the U.S. West, miners needed water for processing in their mining operations, often well removed from a source of water, from which they would withdraw as much as they needed on a “first in time, first in right,” prior appropriation, basis. It was first come, first served, and later arrivals got the left-overs. In times of shortages, the riparian users reduced their withdrawals proportionally, but the prior appropriation users required only the late-comers reduce their use. To have legal standing, the appropriator must intend a beneficial use, divert the water, and pursue that beneficial use. “Even if a better use of the water arises later, the senior appropriator still has the right to use his original right, no matter how wasteful that may seem.” California and Oklahoma are two states among several that have adopted hybrid versions of these two approaches.

Colorado River and Prior Appropriation (Owen, 2017)

Owen (2017) quotes a Colorado lawyer about water rights, “water law in Colorado and most states in the West is based on the doctrine of ‘prior appropriation.’” The first person to make use of water gets the right to continue to use that amount for that purpose forever, unrelated to how far the user is from the stream. This philosophy was enshrined during the 1848 gold rush, where water was used to separate gold from surrounding soil.

Contrast this with the rule in the American East, derived from English common law of riparian rights, “whose guiding principle is that the right to draw water from a stream must be shared equitably by all adjacent property owners.” (Owen, 2017)

In the West, especially for sluicing to separate gold from dirt, dividing a stream soon made it useless. Instead, they have a rule of “first came has first rights.” By law, one could move one’s water across land belonging to another, even move water out of one drainage basin for use in another, the deciding factor in disputes being the date of the first use of the water by a particular user. A neighbor who has earlier rights can withdraw as much water as he wishes even if it means your water is reduced to zero. Whenever the river was low, some with property along its banks would be prohibited from withdrawing water.

Colorado has a special court system just to handle water rights claims. A typical decree states the date of first use, the user, the amount, and the purpose for which it can be used. The prior-appropriation system (the “Colorado Doctrine”) means that during water shortages, sacrifices are made from those on the bottom of the list rather than being shared by all. Sometimes, rights owners work out other arrangements among themselves.

The water in the Colorado River mostly comes from snowpack in the mountains in the north and is mostly used by population centers in the south, primarily in California. In 1922, the seven states most affected by the issues met in Santa Fe to work out a water-sharing agreement but found it difficult to agree on what principles other than priorappropriation should control how much water each state can take from the river. Herbert Hoover, who was to become president, chaired the meetings. They split the watershed into two “basins,” a northern (“Upper”) and a southern (“Lower”) basin and had the states in their

THE LAW OF THE RIVER (COLORADO RIVER)

respective sections work out the details of sharing. This was called the “Colorado River Compact.”

The Compact glossed over many issues, including the rights of Native Americans and the need for environmental conservation. At the time of the Compact, there was a feeling that there was plenty of water for everyone. The years on which that water-supply assessment was based have turned out to be unusually wet ones. While the Lower Basin states are often short of water, the Upper Basin states still use less than their entitlement, about 60% of it. Some of the shortage of water in the Lower Basin has been handled by withdrawal of water from Lake Mead and Lake Powell. Some estimates are that what is being used currently is roughly twice the average inflow of water to the river.

In 1944, it was agreed to allow enough flow diversion for Mexico to withdraw up to 1.5 million acre-feet.

One significant element of the Colorado River is the Hoover Dam, completed in 1936, primarily to prevent floods, although the generation of electricity was a valuable side effect of it. Hydroelectric power is the nation’s largest renewable energy source that does not involve combustion. Hydroelectric plants have the advantage that they do not actually reduce the volume flow downstream, though a dam will reduce it between its intake and outlet.

Since the 1920s, sometimes there have been many years when the flow of the Colorado River was less than a third of what it had been during the years when its flow was originally estimated for the Compact. Until recently, the fact that the real flow was often less than the hypothetical flow did not have significant consequences. One recent study indicated, however, that the current utilization is not sustainable over the long run.

Colorado River Compact (Owen, 2017)

[https://wrrc.arizona.edu/publications/arroyo-newsletter/sharing- colorado-river-water-history-public-policy-and-colorado-river]

1997 was the 75^th anniversary of the Colorado River Compact, which divided the authority over the river to two regions, the Upper Basin and the Lower Basin. The Colorado is often called “the River of the West,” underscoring its importance to the region. The Compact states got together partly to try to offset California’s political influence in the apportioning of the river’s water. A 1922 Supreme Court decision opened the way for California to use the prior-appropriation doctrine to get the lion’s share of the river waters.

Initially, the attempt was made to apportion the water based on irrigable land in each state, but this proved difficult and contentious. The Upper and Lower Basins were divided at Lee’s Ferry near the Utah border. Upper Basin states were Wyoming, Colorado, Utah, and New Mexico. The Lower Basin states were California, Arizona, and Nevada. The usage of the flow was split evenly between the two basins on the optimistic assumption of 15 million acre-feet (maf) per year, with the Upper Basin committed to provide, on average, 7.5 maf to the Lower. [Arizona fought for and eventually got another 1 maf per year from tributaries draining into the Lower Basin.] The variability of the flow and the fact that it averages less than 15 maf per year meant that scarcity was the norm, around which was developed the Law of the River.

An 11-year Supreme Court case, Arizona v. California, was ended in 1964 with a decision apportioning 4.4 maf/yr to California, 2.8 maf/yr to Arizona, and 0.3 maf/yr to Nevada; the decision was seen as a major win for Arizona. The decision was interpreted as giving the Federal government extensive authority to apportion water usage. The Lower Basin states in 1948 settled on a division of water flow among themselves, as percentages. Currently, the Upper Basin states have enough

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water, and the Lower Basin states are often in need of more. Arizona, however, through its Central Arizona Project (CAP) has water to sell. California in the past has benefited by using the excess.

Indian water rights remain an issue. The Arizona v. California decision gave five tribes in the Lower Basin states the rights to almost 1 maf/yr. Other interpretations of the Arizona v. California decision indicate that the tribes may have a claim to as much as 5 maf/yr, which they could use or sell, and which would make a major difference in the Lower Basin distribution.

The 1922 Compact did not address environmental issues, which have gained prominence in recent years. The 1973 Endangered Species Act (ESA) provided explicit protections for certain species, protections that had grave consequences for water availability. Recent users are being regulated more strictly than those who preceded them. Economic downturns or droughts could change the priorities of river users, too. 

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I will be serializing here weekly the Microsoft Word transcription of the final galley proof .pdf copy ot WATER WARS, and the book itself  is most conveniently found at amazon.com  https://www.amazon.com/Water-Wars-Sharing-Colorado-River-ebook/dp/B07VGNLSMX/ref=sr_1_1?keywords=water+wars+by+carter+and+cooper&qid=1577030877&sr=8-1

or at DWC's amazon.com author's book title list https://www.amazon.com/s?k=douglas+winslow+cooper&i=digital-text&ref=nb_sb_noss