by Greg Walcher, E&E Legal Senior Policy Fellow
The Daily Sentinel
Every year for the past 25, at least, negotiating teams for the seven states on the Colorado River have worked to overcome a new crisis, invariably driven by two entities: the state of California and the federal Bureau of Reclamation (BOR). For a quarter-century, those teams have responded to federal pressure based on the dubious theory that an ongoing drought, and a resulting decline in the river’s flow, somehow changed the law and gave BOR authority to ignore the Interstate Compact.
Not once has the federal agency ever acknowledged the government’s own role in reducing the river’s flow, by neglecting to manage thirsty invasive species like tamarisk, and especially by allowing national forests to become so overgrown that much of the snow never makes it to the river. It is easier simply to demand that everyone use less water. But that assumes an authority BOR does not have, under any law, to make such demands.
Yet here we are again, the states trying to reach yet another agreement, with an arbitrary May deadline imposed by BOR, to replace the current drought plan that expires in two years. Headlines across the West warn, “States have mere weeks to reach water agreement.” As in previous years, BOR threatens to take control of the river away from the states and impose its own solution if they don’t come up with an “acceptable” plan.
Here’s the problem: BOR owns and operates dams and reservoirs, but it does not own the water in the river, nor does it have any authority to decide how that water is distributed. Colorado River water is allocated according to a complex set of interstate compacts and agreements known collective as the “law of the river,” based on the underlying 1922 Interstate Compact and the 1948 Upper Basin Compact, both of which were written by the states and ratified by Congress, superseding other statutes and regulations. My own copy is a heavily dog-eared three-ring binder that I have read and re-read for years, never yet finding a single paragraph that includes the words, “unless there is a drought, in which case the BOR may ignore the compact.”
