“The Consequences of the Compact Remains with Us” : Challenges and Opportunities for the Colorado River Upper Basin

Declining Colorado River flows are exposing critical ambiguities in the “Law of the River”, the interlocking set of Compacts, statutes, and court decisions that frame management of the river and the allocation of its waters. Perhaps most important among those is an apparent conflict between Article I of the Colorado River Compact, which calls for the “equitable division” of the river’s waters, and Article III, which is interpreted as creating a firm delivery obligation of water from the river’s Upper Basin to the Lower Basin. This apparent conflict has been papered over for decades with surplus water deliveries, but with climate change depleting the flow of the river, we are approaching a point where that is no longer possible, and a continuation of current practice would place the bulk of the burden of responding to climate change on the Upper Basin. That would hardly be “equitable”. We argue this places a burden on the Upper Basin to choose among a narrow set of paths forward – 1) continuing with the status quo in hopes of negotiating more favorable near-term rules, 2) taking a hard line with the attendant risk of litigation, or 3) seeking a more equitable long term agreement