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Law Offices of Ronald W. Rutz
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May 4, 2005: Colorado River Compact

Q: You have been silent about the melodrama going on about whether to release 8.23 million acre feet of water from Lake Powell to Lake Meade for use by California, Arizona, and Nevada under the Colorado River Compact. Should this be getting all the news space given by the two regional daily newspapers?

A: Secretary Norton did not act upon the upper basinÕs requests, taking the position that the drought related concerns expressed by the upper basin states had been resolved this year by the wet winter and spring. Whether this story has been overblown remains to be seen. It seems that people who know and understand what is happening have many different "takes." But a little background first.

Following ColoradoÕs unexpected and shocking loss in the United States Supreme Court case of Wyoming v. Colorado, the states with whom Colorado subsequently had to negotiate water compacts (an agreement between states much like a treaty between nations) realized that they had the upper hand legally over Colorado, especially when most of the states also had superior use rights to back up their legal rights. As a result, in my opinion Colorado negotiated the best it could with its weak legal position and usually did better in negotiating compacts then reasonably could have been expected. As a result, I believe Colorado has much more to lose then to gain by weakening or destroying the Colorado River Compact of 1922. But that is my underlying "take."

Under the Compact, generally the water of the Colorado River was divided in half between the upper basin states and the lower basin states (However, please realize it is more complicated than this.) But the lower basin states share, and later through legal evolution MexicoÕs allocation, were given priority. This was specifically done to ensure the water supply of the lower basin states during a drought. Specifically 75 million acre feet must be delivered to the lower basin states during any ten-year time span.

In September 8.23 million acre feet was designated to be released from Lake Powell (where much of the runoff is stored) to Lake Meade (where much of the water is diverted by the lower basin states.)

Now the upper basin stated (us) have taken a very aggressive negotiating stance. We argued that since more water then 75 million acre feet has been diverted during the previous ten year period, the excess should be taken into consideration and the determination of the amount of water to be released made in September needs to be changed to reduce the amount authorized for release by as much as 700,000 acre feet.

But in reviewing the compact and the associated compact conference documents, I find no justification for our interpretation. Others with whom I talked do not find a definitive justification for our position either. As a Coloradoan I wish I could but I do not. Even one of the two regional daily newspapers, who has been keeping the water war drums beating on this issue, in an editorial column concedes this legal theory is a bit of a stretch. Another part of the argument of the upper basin states is that Lake Powell should build up now and the lower basin states can access the water already in Lake Meade. Then Lake Powell water can be released later if needed and this will help the upper basin states meet future commitments to the lower basin states. The lower basin states basically view this as a power grab by the upper states to retain "possession" of the water for leverage in next yearÕs release decision, especially if the drought continues.

The lower basin states also question whether Secretary Norton has the legal power to change the allocation established for this season. Despite pronouncements by some upper basin "spokespersons" to the contrary, many feel that this issue has not been determined.

Thus, the question is what was accomplished by the upper basin states? The lower basin states seem to have been energized with a "bring them on attitude" in response to the upper basin states rethoric and conduct. (It is like a football player making a statement that is then hung up in the opponentsÕ locker room.) The lower basin seems ready to not only defend the legal thrusts of the upper basin states but even more disturbing perhaps to begin to modify or invalidate the Compact. I hope we have not over played our legal and political cards.

As for me, I am just shaking my head in semi disbelief, wishing that Delph Carpenture or alphabit soup Carlson, or David Miller could be brought back to life to advise Colorado not only as to water law but also to give advice on interstate negotiating tactics and strategy.

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