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California is Blocking Sustainable Water Rights in the Colorado River Basin

As the Colorado River faces a water crisis due to drought, outdated policies and legal precedents hinder long-term solutions, and while other states propose a long-term plan, California's weak, short-term counter-plan risks the future of the Colorado River Basin, single-handedly blocking a unified effort to begin rebuilding water policy from the ground up.


The Colorado River has been in crisis through more than two-straight decades of drought, leading to water loss and overuse. Six of the seven states which collectively govern the River recently came up with a relatively comprehensive solution to make permanent water usage cuts and account for the over-allocation of more water than is available.


California has rejected this proposal and countered with a much weaker, voluntary, and short-term approach. While the six-state proposal is far from perfect, it contains long-overdue provisions of which the California proposal falls short. Instead of continuing the incrementalist trap of short-term fix after short-term fix, California must join the movement to save the future of the Colorado River Basin.


Water rights along the Colorado River remain divvied up based almost entirely upon two ancient policies: the prior appropriation doctrine and the 1922 Colorado River Compact. 


First established in the “wild west” of 1855 California, the prior appropriation doctrine is a “finders, keepers” rule whereby first-users of water sources in the western US have priority rights over later-users in times of shortage.


California is spared the burden of cuts during droughts simply because it was the first territory to establish such a system during the western expansion. As a result, other states have a much greater incentive to propose long-term, sustainable change while California, which has not felt the full wrath of the drought, remains complacent in proposing only minor, voluntary cuts and in striking down any proposal which might place a more equitable burden on the state.


The 1922 Colorado River Compact was the first interstate policy established in response to population and economic growth, and it remains startlingly unchanged 100 years later. Signed between the seven states within the River Basin, the Compact has two main flaws stemming from its age.


First, the Compact was based on an assumption that the annual flow of the Colorado River was (and forever would be) around 16.5 million acre-feet. According to Jeffrey Silvertooth, a University of Arizona professor of environmental science, the River's average annual flow since the compact was signed has been closer to 14.8 million acre-feet, a ~10% difference that has contributed to the chronic over-allocation of the River's water resources.


Moreover, climate change-driven droughts have led to permanent reductions in the River’s flow and will continue to do so for the foreseeable future. By 2050, the River’s flow is expected to be 29% lower than it was in 2000. Without a long-term, sustainable change in policy, water crises like the current one will only become more common as the River’s flow becomes more unpredictable and unreliable.


The other issue with the Compact is that, despite being signed at a time when Native American tribes were the primary occupants of the Colorado River Basin, they were excluded from the agreement. While Native rights to the River were nominally restored much later with the Indian Water Rights Settlement Act of the 80s, these rights are not enforced in many cases except through lengthy legal battles.


Approximately 30% of the Navajo Nation does not have access to clean drinking water due in large part to legal disputes. The Hualapai tribe was recently granted its full water rights to the River in a settlement orchestrated by the federal government in legislation passed last year, but it was given low-priority status, meaning it will be among the first in line to make required cuts during droughts.


Given the reliance of Colorado River policy on far-outdated legislation and legal precedents, the most that can be done without unanimity between Basin states or sweeping federal intervention is to layer an amalgamation of incremental policies atop the flawed foundation: gradually increasing cuts as crises like the current one occur and repeat, and taking reformative action only in isolated cases like that of the Hualapai tribe.


This incrementalist trap will have the appearance of a “fix” for which current leaders can take credit, kicking the long-term can down the road until it is too late. California must participate in good-faith, unified action to rebuild water policy from the ground up by accounting for present and future water loss to evaporation, transportation, and climate change and by increasing policy and scientific data collaboration among states and Native governments.


Move forward together, or get out of the way.


The opinions expressed in this article are those of the individual author.

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