The Source
Page 13
With no real guidance from the Constitution or legislation from Congress, the Court had no precedent for deciding how to divide the water from the Colorado. One way to avoid leaving the decision up to the Court was for warring states to preemptively negotiate a compact, essentially a treaty between states of the United States. An interstate compact for the Colorado River basin states would put the decision in their hands: once passed, it would become federal law, binding the federal government—including the Supreme Court—and all other states. The downside was that a compact must be approved by each state legislature as well as by the U.S. Congress and thus would require negotiation and compromise.
As is typical in water wars, the new commission was obliged to contend with a slew of historical claims and arguments in the vein of the Harmon Doctrine while attempting to draft an agreement that would stand the test of time. California, the wealthiest and most downstream state, was using ever-increasing quantities of water for its sprawling cities in and around Los Angeles. Burgeoning agricultural communities in the southern California desert also needed water, and there was no indication that the growth would slow anytime soon. In contrast, most other states in the basin were poorly populated and had limited existing agricultural development, but they had a lot of land that eventually could be irrigated and used for agriculture. If the Harmon Doctrine of absolute sovereignty were applied, then upstream states could just divert whatever water they needed from the river as their cities and farms grew large enough to need it. If, however, some form of prior appropriation doctrine were used, California would get the windfall of water based on its established current water use in 1922, even though there was no infrastructure in place to put the water to use at the scale California thought possible.
The compact negotiations were necessary to resolve these conflicting pulls: upstream states wanted to make sure that California didn’t take all the water while California wanted to get the pieces in place for large-scale—federal—water infrastructure. California, for instance, needed to have a massive flood control dam built to protect a growing agricultural region that had suffered a series of devastating floods; in 1905 the Colorado River had left its normal course and flowed 80 miles west, destroying thousands of acres. California thus wanted a flood control dam along with the ability to divert water out of the river. But before any dam on the river could be built, federal or not, California had to obtain the right to be diverting the amount of water it intended to. Similarly, for Arizona to make use of Colorado River water to irrigate fields and grow cities, it would need an enormous cross-state canal system, a scale of infrastructure well beyond what Arizona alone could finance. Upstream states likewise had limited ability to store any water, let alone convey that water with canals for cities or farms. All of these types of infrastructure were well outside the capabilities of the individual states, and representatives from these states knew they could never use their clout to get federal funding for the necessary infrastructure as long as the states were at loggerheads over who got how much water. The Colorado River Commission headed by Hoover provided a setting for states to begin resolving these issues—not by determining the allocation of funds, but by specifying the allocation of water to make future projects even possible.13
After the first six months of meetings and hearings ended in abortive failures, the Supreme Court forced the commission’s hand. In June 1922 the Court finally released its decision on the conflict between Colorado and Wyoming for the water of the Laramie River. It said that in western states where the prior appropriation doctrine was used for dividing up intrastate water, the appropriation doctrine would also apply to interstate conflicts. Along with this finding, the Court definitively rejected the notion of absolute sovereignty proposed in the Harmon Doctrine. Upon hearing this decision, the upstream states were quick to realize that California was now fully in the driver’s seat, and the only way they could protect water rights for their own future development was to secure them through an interstate compact.
Hoover had the commission sequester itself that November at Bishop’s Lodge, a ranch in New Mexico. He chose the lodge because it was several hours away from Santa Fe by rough roads, thus limiting the potential for observers and interlopers. At the ranch, formal talks were held with only the delegate and advisors (an engineering adviser and a legal adviser) from each state; this approach minimized outside influence or lobbying during the actual talks and allowed the commissioners to negotiate concessions without immediately infuriating their state interests. These conditions, combined with Hoover’s constant cajoling and needling and prodding, resulted in a compact that hinged on a great compromise.14
The first part of the compromise, and the negotiating breakthrough that made the eventual Colorado River Compact of 1922 possible, was at first a punt. The delegates initially were trying to divide the water seven ways—between the seven basin states—but could not. In a last-ditch effort to stop the whole discussion from collapsing, they arrived at the option of dividing the water first into the upper basin and a lower basin and then letting these subgroups of states continue to fight among themselves. Lee’s Ferry was a convenient geographical point between states, roughly dividing the entire Colorado basin into upper states (Colorado, Wyoming, Utah, New Mexico) and lower states (California, Arizona, Nevada).
The second part of the compromise required the states to determine how much water was available to be divided. The U.S. Geological Survey had been measuring the flow of the Colorado since the late nineteenth century, and based on the data available in 1922, the average annual flow at Lee’s Ferry was estimated at about 16.5 million acre-feet (MAF). Because one acre-foot equals the amount of water needed to cover an acre of land with a foot of water, about 330,000 gallons, 16.5 MAF adds up to roughly 5.3 trillion gallons. The 1922 compact said that the upper basin states would not let the 10-year total flow at Lee’s Ferry fall below 75 MAF, effectively giving the lower basin states a guaranteed average of 7.5 MAF per year. From there it would depend on the flow in the river; in normal years, the lower basin would get 7.5, the upper basin would get 7.5, and then if sufficient water was available, the lower basin would get an additional 1.5 MAF. Moreover, the basins would split their obligation to Mexico.
Later acts and court decisions would further refine and specify water distribution within the particular states of each basin and formalize an obligation to Mexico of 1.5 MAF. The accumulated agreements, treaties, Court decisions, and legislation for divvying up the water of the Colorado—between the United States and Mexico, between the upper and lower basins, and between the states within each basin—are now generally known as the Law of the River.15
An important element of the 1922 compact, and of subsequent additions and refinements, was that everything grew out of the prior appropriation history of water use in arid regions. First, Mexico would be the most senior appropriator; all the states would ensure that Mexico’s portion got filled, and the upper and lower basins would share that burden. Next in the hydrologic line was everyone—individuals living along the river—who was using Colorado River water at the time of the 1922 compact; these would be designated as “present perfected rights.” For all intents and purposes they would be the most senior, inviolable water rights in the United States to the Colorado River system, the last water to be curtailed during the most severe of droughts. Once these senior water rights had been filled, based on the compact requirement to deliver 75 million acre-feet over a 10-year period at Lee’s Ferry, the lower basin effectively would be the most senior user. Then, as long as the water supply was sufficient, the upper basin states would divide the remainder, which was expected to be 7.5 MAF.
The final compromise of the 1922 compact was a concession to California. Because California had the most political leverage, there was general recognition that the other states would support California’s bid for a flood control dam in the lower river, downstream of the Grand Canyon. While California wanted that concession made explicit in the final 1922
compact, the other states refused, suggesting that all the states push for the dam after Congress had recognized the final compact.
Once the commissioners had signed the compact, it had to be ratified, first by their state legislators and then by the U.S. Congress. This step required a series of further political concessions. To convince legislatures of the upper basin states to agree to the delivery obligation to the lower basin states stipulated by the compact, California agreed to limit its claim to the river to 4.4 MAF rather than continuing to use ever more water and thus glean ever more water rights on the basis of the prior appropriation doctrine. With this concession from California, the other states lent their political support to a bill that would authorize a great dam in Boulder Canyon and also recognize the division of water between the upper and lower basins. And thus the newly elected President Herbert Hoover signed the Boulder Canyon Project Act of 1928, authorizing the construction of what we know today as the Hoover Dam and also allocating the water among lower basin states.16
Allocation of the Colorado River—The Law of the River
Upper Basin—7.5 million acre-feet per year (2.4 trillion gallons)
State
Acre-feet per Year
Colorado
3.86
Utah
1.71
Wyoming
1.04
New Mexico
0.84
Arizona*
0.05
Lower Basin—7.5 million acre-feet per year (2.4 trillion gallons)
State
Acre-feet per Year
California
4.40
Arizona
2.80
Nevada
0.30
*Arizona also gets an allocation of 0.05 million acre-feet per year from the upper basin in addition to its allocation from the lower basin.
There was one holdout: Arizona. Ornery Arizona. The commissioner from Arizona had signed the Colorado River Compact in 1922, but the state legislature refused to do so. The other states changed the rules so that they needed only six of the seven states to ratify this compact and move on with water development, but the State of Arizona still did not ratify the compact. Nor did the state support the Boulder Canyon Project Act, which formalized water allocation among the lower basin states, including Arizona. While Arizona had several reasons for resisting the compact for so many years, its big complaints were that the state didn’t have an aqueduct and it didn’t trust California.
Arizona had long battled with California over the Colorado, but Arizona always had a weaker hand because it lacked the infrastructure for putting the water to use where it was needed—near Phoenix, some two hundred miles away from the river. Soon after the compact was signed and the Hoover Dam constructed, California began sending Colorado River water off into its own hinterlands: by 1939 Colorado River water was watering Los Angeles through an aqueduct spanning more than 240 miles; and in 1942, California was irrigating the farms of the Imperial Irrigation District 80 miles from the river. As long as Arizona was unable to build the aqueduct necessary to divert its portion of the Colorado River, California could take more than its allocated share.
In 1944 Arizona threw in the towel and signed the compact—in part so it could sue California—thus formally asserting its rights to an annual allocation of 2.8 MAF of Colorado River water. But even with its water rights secured, Arizona still had no way to get the water to where it was needed, over two hundred miles away in the central part of the state. For that feat, Arizona would need an aqueduct. It would cost an enormous sum of money as well as much of Arizona’s remaining hydrologic sovereignty.
What Arizona got forty years after the 1922 compact was the Central Arizona Project (CAP), at that time the single most expensive piece of legislation ever passed by Congress. The CAP eventually would take water out of the Colorado River on the state’s western border at Lake Havasu (where the Los Angeles aqueduct took water in the other direction) and move that water east to Scottsdale, on to Phoenix, and then on to Tucson along its 336-mile path through the Sonoran Desert.
Arizona had been trying for decades to get an aqueduct like the CAP, but for most of those years the state had been blocked by California, which was then acting like a hydrologic and political bully. By blocking a canal for Arizona, California could continue to grow its water use and thus rely on the appropriation doctrine to sustain such use over time—or so it hoped. That tactic was finally blocked by the Supreme Court in 1963, which said that regardless of what Arizona and California did after the Boulder Canyon dam was built, the distribution between the states as outlined in the act authorizing the dam would hold: 4.4 million to California, 2.8 million to Arizona, and 300,000 to Nevada. California’s water from the river was capped.
But California was not out of political maneuvers yet. With its water capped, California fought to ensure that it had the most senior priority for water in the lower basin. If things got really bad in the future, California wanted to make sure to get all of its water before Arizona got any of its. Arizona, desperate for the aqueduct, made a deal with California, its hydrologic devil. In 1968 Arizona agreed to be the junior rights-holder of the lower basin in exchange for California’s political support for the CAP. All of these negotiations and compacts and new laws set the rules. The U.S. Bureau of Reclamation would do the work.
Though the Bureau of Reclamation would become the twentieth century’s chief dam builder, its beginnings were humble. Started under Teddy Roosevelt in 1902, the role of Reclamation was to increase the scale of irrigation in the West beyond what was possible by local efforts alone. The bureau’s early work focused on already existing irrigation projects that were marginally effective but, with federal money and Reclamation engineers, could grow to be self-sufficient.
Indeed, an enormous number of irrigation projects were well under way by the time the Bureau of Reclamation came onto the scene. While settlers on the Great Plains were notoriously self-sufficient and independent, settlers in the interior West recognized that the irrigation infrastructure needed could not be built, managed, or even justified by an independent farmer. Very early on, western settlers solved this “collective action” problem by forming groups to build irrigation systems that combined simple infrastructure, organization, and management. Some of the earliest irrigation groups were the Mormons. In 1847, within two hours of arriving at their new home in the Great Basin of Utah, these religious pioneers diverted water from the 8-foot-wide City Creek to soften the ground for plowing. Within twenty years, they had built a system of diversion dams and 277 canals that gave them enough hydrologic certainty to reliably feed their burgeoning population. They achieved this feat by developing a novel management system of irrigation districts through which property owners could locally organize and levy taxes on themselves to build and maintain canals.17
Additional forms of local governance and even entrepreneurial approaches to manage irrigation would soon emerge in response to the reality that the optimal size for irrigation was greater than the optimal size of a farm. By 1920 the average size of a farm in the West was just over 260 acres, of which 83 were irrigated; the average size of an irrigation organization, however, was thousands of acres. Western settlers had pioneered local governance as much as they had pioneered the use of irrigation technology, which together began to transform the West: over 3 million acres were under irrigation in the West before the Bureau of Reclamation—the federal government’s extension to aid irrigation—even existed.18
The vast majority of these nineteenth-century irrigation systems were effective at diverting and transferring water, but their critical weakness was not being able to store water from one year to the next. The irrigation systems maximized their use of the water available in a particular year, but they were vulnerable to the vagaries of flow from year to year. If the federal government was going to put to productive use the vast lands that it had purchased and accrued since the Louisiana Purchase in 1803, then it could not leave
all the work to individuals or even to local government–like irrigation districts. Rather, the federal government would have to take on the cost and effort of the more significant storage and irrigation work necessary to settle such immense expanses of arid lands.19
Reclamation expanded the scale of what was possible, or even imaginable, particularly by constructing the ever-larger dams that came to symbolize the agency. Large dams were the central element of water storage, the essential component of scaling up irrigation in the West. With the advent of hydroelectricity, these dams served double duty in encouraging settlement by providing both water and power. The Hoover Dam in particular was visual evidence of the scale made possible by Reclamation. The world’s largest dam and the world’s largest hydroelectric power plant at the time of construction, the Hoover Dam could store 30 MAF of water, or almost two entire years of Colorado River flow. It could then mete out that water to the lower Colorado River for use in irrigating vast farms in the desert and for filling Lake Havasu, the reservoir formed by Reclamation’s Parker Dam 150 miles downstream of the Hoover. From Lake Havasu, California diverted water to the west while Arizona diverted water to the east. Reclamation provided the gargantuan scale needed to stabilize flows and deliver regular, secure water supplies to the burgeoning Southwest.20
In addition to the Hoover Dam, successful execution of the Colorado Compact called for a network of massive dams upstream of Lee’s Ferry. A single large dam could regulate the flow of a river for a year or two; a network of mega-dams peppered along the main river and its tributaries could manage the flow of an entire basin over many years.