A solution to the long-building Colorado River conflict is needed — now.
The Colorado River supplies water to roughly 35 million people in the American West and in Mexico. A mosaic of compacts, treaties, statutes and rules dating back to 1922, known as “The Law of the River,” divides the river’s water between the seven U.S. states in the Colorado River Basin and Mexico. The secretary of the Interior, through the U.S. Bureau of Reclamation, exercises control over reservoir operations.
The Law of the River is deeply rooted in history, remarkably complex and ill-suited to short-term adaptive strategies. Today’s water crisis has been building since 2000, when, ironically, the Bureau of Reclamation was evaluating plans to store extra water. Today presents a very different situation: Water demand outstrips supply, and the influence of climate change is obvious and unrelenting.
It has taken 24 years for the problem to crystallize, but less than 24 months remain to develop a solution. Yet there appears to be little urgency in today’s discussion among the Colorado River Basin’s key players.
Water supplies were severely overestimated when the Colorado River Compact was signed over a century ago, and today’s average inflow is well below legal entitlements. A 2007 consensus agreement adjusted reservoir operations, staving off the worst effects of what became a multidecade drought. Those guidelines expire in late 2025, and 2026 will be the last year they dictate water releases. There is no clear plan beyond that.
In 2022, the Bureau of Reclamation declared it might soon fail to meet downstream water demands and could be forced to curtail power production at Hoover Dam. The Lower Basin states — Arizona, California and Nevada — temporarily reduced demand, but a long-term solution remains elusive. Today, Upper Basin interests call for permanent reductions in downstream demand, while Lower Basin interests seek firm access to stored water.
Swift cooperative action by all the Basin states is imperative. Every passing day represents a lost opportunity to conserve supplies and buffer against catastrophe. The upcoming presidential and congressional elections should incentivize movement.
The Biden administration wants a lasting deal and has been willing to fund solutions, including last month’s release of $450 million for Upper Basin projects designed to encourage additional water conservation, environmental benefits and ecosystem and habitat restoration.
But future policy is unknown. Congress has before it the Northeastern Arizona Indian Water Rights Settlement Act, a chance to resolve a massive outstanding claim on the river by the Navajo Nation, the Hopi Tribe and the San Juan Southern Paiute Tribe. The deal could facilitate agreement on operating principles, but congressional attention too is fleeting.
There’s no time to waste. Even an amicable solution will take months, if not years, to implement. Assuming the Bureau of Reclamation could apply a solution within its existing authorities, it must complete environmental reviews to do so. These will not conclude until late 2025 at the earliest. Larger solutions could require amendments to the underlying statutes or basin compacts. Federal legislation would be needed in either case.
Deferring hard conversations today increases the risk of litigation later. The case would likely land before the Supreme Court. The court would probably appoint a special master to adjudicate the conflict, but its recent tendency has been to appoint individuals lacking in subject matter expertise, a troubling prospect given the complex issues at play.
A Basin-wide conflict involving all seven states, the federal government and the tribes, the case is sure to bounce between trial and appellate levels, and the process could last well over a decade. Given the stakes, no party could afford to spare expense. The cost to taxpayers could approach $250 million in the early phases of litigation, with total costs reaching $1 billion. The cost is worth it for the winners, but there are always losers — and, in this case, there could be millions of them.
The Basin needs a plan that stabilizes water supplies, incentivizes water conservation, enshrines environmental stewardship and adapts to changing conditions. The so-called “Cooperative Conservation Alternative” submitted to the Bureau of Reclamation during its environmental review process merits thoughtful consideration. Its value lies in its ability to address immediate challenges while also facilitating a more resilient and adaptive future that transcends individual interests.
As Supreme Court Justice Oliver Wendell Holmes noted in 1931: “A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it.” Those involved in today’s discussions must recognize the system’s modern limitations and soften historical hardline positions to ensure that the river remains sustainable into the next century. And they must act now.
It’s time to write the Colorado River’s next act — together and with haste.
Tom Wilmoth began practicing law with the Arizona Department of Water Resources in the 1990s before joining the Solicitor’s Office and representing the Bureau of Reclamation in the Lower Colorado River region. He co-founded BWJ Law Group in 2008.
