By George Sibley
Kayakers launching and retrieving from Antelope Point Public Launch Ramp Lake Powell, near Page, AZ June 2021. Photo: nps.gov
The Colorado River Compact turns 100 this year, but any celebration is damped down by the drying-up of the big reservoirs it enabled. The Bureau of Reclamation’s “first-ever” shortage declaration on the river acknowledges officially what we’ve known for years: the Compact and all the measures augmenting it, collectively known as The Law of the River, have not prevented the river’s over-development.
Nearly every pronouncement from the water establishment about the centennial of the Colorado River Compact calls it the “foundation,” “the cornerstone” of the Law of the River – as though before the Compact was adopted, the river was lawless.
It wasn’t. The real foundation of the Law of the River is the appropriation doctrine that all seven river basin states embraced from their start, an evolving body of common law foundational to all water development in the arid American West.
There is much to appreciate in the appropriation doctrine. It allows water to be claimed only by those who are actually putting it to beneficial use, thus precluding speculation. It protects existing downstream users from having their supply dried up by new upstream users. It has shown flexibility in incorporating new uses.
But the appropriation doctrine also evolved as a powerful engine for growth. Its “first in time, first in right” promise of perpetual secure use rewards those who get to the water first.
Judicial decisions then increased its potential for spurring growth. The abstract “right to use water” came to be a property right that could be bought and sold like an automobile, and water whose use was so purchased could then be moved anywhere – along with its seniority. This enabled cities and other large entities with concentrated economic power to buy and move water far from its origin, including water they were not yet ready to use, which clashed with the appropriation doctrine’s anti-speculation intent.
The Colorado River Compact commission came together 100 years ago to impose some control on that growth engine. The seven Basin states had finally acknowledged that they would have to honor each other’s prior appropriations, and they knew that could precipitate a chaotic seven-state horse race, with each state trying to appropriate as much water as possible as quickly as possible.
Their initial strategy was to prevent that by determining what each state could “equitably” use. That failed because the cumulative sum of what they each believed they deserved added up to considerably more than the river’s average flow.
Finally, they just divided the seven-state horserace into three-state and four-state horse races, details to be worked out later, and that became the essence of the Compact. It wasn’t quite what they had set out to do, but it satisfied the federal government enough to allow Reclamation’s eager beavers to begin developing the river’s mainstem.
The Compact and subsequent laws, agreements, contracts and other measures we know as The Law of the River impose public priorities on the Upper and Lower Basins, limit water for California, designate water for Mexico, add recreation as a beneficial use, incorporate environmental restrictions, limit California again, construct shell games with reservoirs, et cetera.
But a good question for evaluating the Compact and the Law of the River today is this: Would the situation on the Colorado River today have been any worse, or different, had there been no Colorado River Compact and its augmenting “Law of the River”?
Given that the desert empire watered by the Colorado River continues to grow virtually unchecked, with 50 to 80 percent more growth anticipated by mid-century, even as the water supply shrinks four to five percent for every degree of temperature increase, it may be time to stop trying to construct control systems around the growth engine, and look into the engine itself.
This is, of course, something no one wants to touch. But what can else be done when an appropriation doctrine has nothing left to appropriate and the growth it enables has become dollar-driven and spiraling out of control?
George Sibley is a contributor to Writers on the Range, writersontherange.org, an independent nonprofit dedicated to spurring lively discussion about Western issues. He writes extensively about the Colorado River.