What is the Plain Meaning of the 1922 Colorado River Compact and What to Do About It?
Given the threats of litigation resounding throughout the Colorado River Basin, Hydrowonk decided to revisit his intellectual roots, channeling the wisdom of one of his many mentors (“Nino”) from University of Chicago Law and Economics crowd in the late-1970s. He would tell Hydrowonk, “Start with the plain meaning of language.”
The 1922 and 1948 Compacts
Article III(d) of the 1922 Colorado River Compact states:
“The States of the Upper Division will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre-feet for any period of ten consecutive years reckoned in continuing progressive series beginning with the first day of October next succeeding the ratification of this compact.” (emphasis added)
How would the Upper Basin cause a 10-Year flow of the Colorado River at Lee Ferry to fall below 75,000,000-acre feet?
The most direct way would be for the Upper Basin states to collectively use more than 75,000,000-acre feet over a 10-Year Period.
Are there other sources of cause?
Consider Article IV of the 1948 Upper Colorado River Basin Compact. The first paragraph states:
“In the event curtailment of use of water by the States of the Upper Division at any time shall become necessary in order that the flow at Lee Ferry shall not be depleted below that required by Article III of the Colorado River Compact, the extent of curtailment by each State of the consumptive use of water apportioned to it by Article III of this Compact shall be in such quantities and at such times as shall be determined by the Commission upon the application of the following principles:”
Does this language simply acknowledge the “cause” formulation in the 1922 Compact?
Do the principles help define the cause formulation?
First principle: “(a) The extent and times of curtailment shall be such as to assure full compliance with Article III of the Colorado River Compact;”
Nope.
Second principle: “(b) If any State or States of the Upper Division, in the ten years immediately preceding the water year in which curtailment is necessary, shall have consumptively used more water than it was or they were, as the case may be, entitled to use under the apportionment made by Article III of this Compact, such State or States shall be required to supply at Lee Ferry a quantity of water equal to its, or the aggregate of their overdraft or the proportionate part of such overdraft, as may be necessary to assure compliance with Article III of the Colorado River Compact, before demand is made on any other State of the Upper Division;”
Does this implement the “most direct cause” discussed above? Upper Basin states who exceed their entitlement are responsible for meeting reductions required by the 1922 Compact.
Third principle: “(c) Except as provided in subparagraph (b) of this Article, the extent of curtailment by each State of the Upper Division of the consumptive use of water apportioned to it by Article III of this Compact shall be such as to result in the delivery at Lee Ferry of a quantity of water which bears the same relation to the total required curtailment of use by the States of the Upper Division as the consumptive use of Upper Colorado River System water which was made by each such State during the water year immediately preceding the year in which the curtailment becomes necessary bears to the total consumptive use of such water in the States of the Upper Division during the same water year; provided, that in determining such relation the uses of water under rights perfected prior to November 24, 1922, shall be excluded.”
Is this a “spillover provision” allocating any further reductions required by the 1922 Compact not covered by the second principle?
The belief that the Upper Basin guarantees the flows stated in Article III(d) of the 1922 Compact is not consistent with the plain meaning of the language.
What Would Nino Say?
He would ask about the circumstances today.
Did the Upper Basin states use Colorado River water above their entitlements, individually or collectively? No? Well, are there other causes? Hydrologic conditions! Did the Upper Basin cause hydrologic conditions? No! Don’t expect the judiciary “to come and save the day.” Nothing in these compacts address how to address current circumstances.
What Should Interior Do?
Consider how the 1944 Treaty between the United States and the Republic of Mexico formulated Mexico’s 1.5-million-acre-foot entitlement to Colorado River water. Article 10(b) states:
“In the event of extraordinary drought or serious accident to the irrigation system in the United States, thereby making it difficult for the United States to deliver the guaranteed quantity of 1,500,000 acre-feet (1,850,234,000 cubic meters) a year, the water allotted to Mexico under subparagraph (a) of this Article (1,500,000 acre-feet) will be reduced in the same proportion as consumptive uses in the United States are reduced.” (emphasis added)
An explicit causation standard (extraordinary drought or infrastructure failure)! The reduction in deliveries to Mexico must be reduced in the same proportion as consumptive uses in the United States. Why not reduce the consumptive use of the Upper and Lower Basins by the same proportion, pending an alternative agreement among the two basins?