California plays ‘hardball’ with Colorado River states over cutbacks

If you want a long running reality show, the fight over the Colorado River water is a good one.  It has been going on for 100 years—NOT A TYPO  After all that time, the Feds gave California and the other States involved until January 31, 2023 to find an answer.  Of course Newsom said NO, while the other six States gave a Plan.  In the end, it might take another 100 years of court fights, new laws, several more Presidents—or the end of the Colorado as a source of water, to solve the problem.

““Basically, now that’s an opportunity that will be lost,” he added, with the Bureau of Reclamation expected to publish its own proposal in the spring.

“It really looks like there’s a fundamental difference,” said Sharon Megdal, director of the University of Arizona Water Resources Research Center.

The six-state proposal focuses on distributing the burden for evaporation losses that occur when the river flows downstream. As the biggest user of the Colorado River, California would face the greatest supply cuts in this scenario.

It does not matter which proposal is eventually approved.  Once approved, expect environmental groups and others to sue—and another 100 year court fight will start.

California plays ‘hardball’ with Colorado River states over cutbacks

BY SHARON UDASIN, The Hill,  2/8/23  

A multistate quest to protect a dwindling Colorado River has devolved into a high-stakes battle pitting California against its neighbors.

At odds are two dueling proposals as to how seven states should apportion critical consumption cuts that could help save the lifeblood of the Western United States. 

Despite engaging in months of negotiations, the states failed to produce a unified agreement by the Jan. 31 deadline stipulated by the Federal Bureau of Reclamation.

Instead, they offered two competing proposals: one from California and one from the six other basin states.

“There need to be some long-term solutions here to reduce water supply, and there’s a lot of money to do it,” David Hayes, a former climate policy adviser to President Biden, told The Hill.

The negotiating parties could have gotten together to discuss how best to use such funds “to forge a new future,” added Hayes, who is now a lecturer at Stanford Law School.

“Basically, now that’s an opportunity that will be lost,” he added, with the Bureau of Reclamation expected to publish its own proposal in the spring.

“It really looks like there’s a fundamental difference,” said Sharon Megdal, director of the University of Arizona Water Resources Research Center.

The six-state proposal focuses on distributing the burden for evaporation losses that occur when the river flows downstream. As the biggest user of the Colorado River, California would face the greatest supply cuts in this scenario.

The Golden State’s proposal, which would include greater cutbacks for Arizona than for California, relies on voluntary measures that would serve “to minimize the risk of legal challenge or implementation delay.” And California has incentive to stick with the status quo. 

“If they stand pat, they will continue to get more water because of their older water rights on the river,” said Neil Grigg, a professor of civil and environmental engineering at Colorado State University.

California’s plans would adhere to the legal dictates of the Colorado River Compact of 1922 — the traditional water “priority” system that originally divided up the river.

“Under the traditional priority system, California would gobble up all the Colorado River water — they were already growing and would get to use it first,” said Tom Buschatzke, director of the Arizona Department of Water Resources.

But JB Hamby, chair of Colorado River Board of California, sees these century-old events through a different lens. 

“California used water earlier and quicker than other places because it was a really good place to do that,” Hamby said, noting that the region was an ideal place to grow food.

The 1922 compact arose following a Supreme Court ruling that affirmed the right to divert water across state lines, according to a University of Arizona historical account.

Since the mid-19th century, settlers were able to claim water through the “prior appropriation” doctrine of “first in time, first in right.” But once that right applied across borders, states worried that quick-growing California would stake outsized claims.

The 1922 compact aimed to assuage some of these fears, by dividing the states into an Upper and Lower basin — each of which would receive 7.5 million acre-feet of water per year.

Within the Lower Basin — which includes California, Arizona and Nevada — the Golden State still ended up with the largest share, entitled to 4.4 million acre-feet. 

“The way the priority system works is to not upset the existing people who have been living in and dependent upon that resource for a long time,” Hamby said.

While Hamby acknowledged that new users do enter over time, he said they do so with an understanding that they will endure cuts first if a shortage occurs.

“Now that that chicken is coming home to roost, it’s uncomfortable,” he added.

Today, the 1,450-mile Colorado River serves about 40 million people across seven U.S. states and Mexico — supplying drinking water, irrigating crops and powering hydroelectric stations.

Grigg, from Colorado State University, warned that if California continues to get such a massive portion of that water, there could be “hardships up and down the river.”

Unlike California’s proposal, the six-state plan incorporates “a spread-the-pain approach,” according to Grigg, a longtime policy adviser for national and state water agencies.

“California’s going to say, ‘Well, we don’t want to spread it that way,’” he said.  

Buschatzke said “inequities” in the Colorado River’s priority system clash with the “physical reality of a river.”

Hayes, from Stanford Law, said he was surprised that California’s proposal placed such an emphasis on the idea that “they’ve got legal rights, so that’s the end of the story.”

“It’s pretty obvious that that doesn’t solve the problem,” he said. “And if the problem is not solved, the potential consequences are very bad for everybody, including California.”

If the basin’s reservoirs reach “dead pool” — a situation in which there isn’t enough water to flow over the dams — then no one will be getting anything, Megdal pointed out.

“This is really hardball right now,” she said.

For California’s part, Hamby said that in the most recent meetings the other six states worked together behind closed doors and would not share their proposal ahead of time. As a result, the Golden State devised its own proposal and submitted it separately. 

While Hamby agreed that there is “a structural imbalance in the Lower Basin,” he quipped that “we did not discover last year that water evaporates.”

“Over the decades there were more, new demands continually added on to the system, to the point where we basically have a deficit,” Hamby added.

Regardless of which solution — or combination of solutions — ends up taking effect, Megdal urged states to “get back into equilibrium,” as the current crisis is just “too big to fail.”

While Buschatzke said he believes that the federal government will ultimately have to put its foot down, he voiced support for further collaboration.

“If we’re not talking, we’re not getting to any agreement,” he added. “So we’re going to continue to get in a room, and there will be some continued difficult conversations.”

Hamby also stressed that California remains “an active participant.”

 “The best way to success is to develop a true consensus solution,” he said. “And that doesn’t mean state splintering in different directions — we need to confront these hard realities.”

Although collaborative momentum may currently be stuck at a standstill, Hayes said that he is optimistic that the recent failures could provide “an opening salvo” for future progress.

The vying parties, he said, will “need to really think hard about how collectively they can use tools that are available to them to solve the problem and absolutely share the burden.”