Uneasy Times Along the Colorado River Doug Kenney Natural Resources Law Center University of Colorado 30 th Colorado River Workshop July 28, 2005 Gunnison, CO

Outline 1. Some major themes from the NRLC Conference Issues of sustainability & the current crisis Ongoing negotiations & a possible solution 2. Three “Big Questions” that will shape the future of Colorado River politics

The Numbers Don’t Add Up: Acknowledgement that: (1) the river is overallocated, (2) full development of compact apportionments is unrealistic and unsustainable, and (3) that the current levels of use may be unsustainable Average Depletions > Average Inflows > Firm Yields Average Depletions: Average US-Mexico mainstem depletions (from ), counting reservoir evaporation, are 15.4 MAF/year. (This figure increases by more than 1 MAF/year if over-deliveries to Mexico are considered.) Inflows & Yields: The gaged record ( ) plus the latest tree-ring estimates are converging around a long-term mainstem average of 14.8 MAF/year. Firm yield is lower. How Can This Be?: The 1980s were wet (average flows of 17.2 MAF) CAP wasn’t running full (~1.5 MAF) until the late 1990s THUS: Trouble was brewing even before the drought.

Furthermore ….. Addressing the “California problem” doesn’t completely balance the water budget: e.g., If California stops taking surplus flows (which they have since October 2003) and releases from Powell are limited to the 8.23 MAF (minimum objective release) target, Lake Mead still declines.

Everybody Hurts (but at different times and at different levels): While the Upper Basin suffers greatly if Powell goes dry, a “low Powell” (where releases are limited to 8.23 MAF) creates immediate problems for the Lower Basin  Even at the 8.23 MAF/yr release and with surplus uses curtailed, Mead is likely to drop; frequent (but small) Lower Basin shortages could become commonplace: An average of 8.23 MAF in releases is already higher than what the Compact requires (75 MAF/10 years, or 7.5 MAF/year) [so 8.23 MAF may already be a best case scenario for the Lower Basin – especially given that the Upper Basin still plans to develop additional Colorado River water in the future]  While Powell going dry and/or the Upper Basin being subjected to a compact curtailment (i.e., essentially a compact call) is unlikely to happen with high frequency, the impact could be severe  When the weather improves, Powell will recover faster than Mead. (Likewise, when droughts begin, Powell drops before Mead.) Some Key Issues: The Distribution of Risk This is the backdrop for the ongoing multi-state negotiations and efforts to devise a Lower Basin shortage sharing plan

A Solution is Possible: Despite a lack of progress thus far, the key players in the multi-state negotiations were surprisingly optimistic in predicting a solution to the current problems  Fundamental disagreements exist on several key legal issues, e.g.: What is the Upper Basin’s obligation to provide releases to Mexico Is the 8.23 MAF minimum objective release a firm policy (or does 75/10 rule) How should Lower Basin uses of tributaries be accounted for Under what conditions is underground storage of water in Arizona a beneficial use Does the Upper Basin really have a “delivery obligation” to the Lower Basin during severe drought; Can the Upper Basin be subjected to a compact call  Litigation or a federally imposed solution would be a mistake  Agreement that no state, for political reasons, can agree to any reform that has the effect or appearance of reducing that state’s promised apportionment This opinion ran counter to several other major themes of the event, e.g.:

What Might a Short-Term Solution Look Like?  Deal based on new reservoir operations: Minimum releases of 8.23 MAF would continue New rules regarding equalization and coordinated reservoir operation (to better balance risks to the two main reservoirs and to protect both hydropower heads)  Compensated fallowing programs and subsidized agricultural conservation programs for drought coping (with some federal dollars)  No resolution of fundamental Law of the River disputes

Unresolved Issues: “3 Big Questions ”  (1) Can “reservoir operations” reforms indefinitely delay the need to formally resolve the Law of the River disputes?  (2) At what point is more Colorado River development in Colorado detrimental to the water supply goals of Colorado? Note: This is different than asking: “How much more Colorado River water can Colorado develop?”  (3) What happens to agriculture in the next 100 years if the cities keep growing? [What happens to the environment?]

Thank You. For More Colorado River Information, visit: This site has:  Several Colorado River studies, reports and Law of the River documents, including the transcripts of the Colorado River Compact negotiations  All presentations and papers from the NRLC conference: “Hard Times on the Colorado River” Or contact me: (303)