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1922 Plan Could Cost N.M. Water

By John Fleck
Journal Staff Writer
           For Western water lawyers, there are few juicier or more important questions than one lurking behind article III(d) of the 1922 Colorado River Compact.
        From the vantage point of 21st century science, it looks like it may be a very old legal mistake that could collide with a very new set of problems to put a serious squeeze on New Mexico's already skimpy water supplies.
        We are not alone, according to Doug Kenney, a University of Colorado law professor working on a new study of the legal, political and scientific problems converging on water users in the West.
        As Western water supplies dwindle, whether through long term drought or climate change, the four states of the Colorado River's upper basin — Colorado, Utah, Wyoming and New Mexico — could end up taking the hit, according to Kenney. He argues, (and most legal scholars seem to agree) that California, Arizona and Nevada are entitled to a full allotment of Colorado River water no matter what. If there are shortages on the river, New Mexico and the other states of the upper basin could be forced to curtail their water use, passing the water downstream for Las Vegas, Phoenix and Los Angeles.
        "For a state like New Mexico, it means that satisfying current uses might be impractical, let alone thinking about new uses," Kenney told me in an interview last week.
        Although most of New Mexico lies east of the Continental Divide, in the Rio Grande Basin, smart state political leaders carved out a deal nearly a century ago to ensure the state could use a piece of the Colorado River's bounty.
        In recent years, the state's population centers in the Rio Grande Valley have started to see, in a very direct way, the fruits of that decision. Two years ago, Albuquerque began using imports from the Colorado Basin for a portion of its drinking water supply. Last week, Santa Fe began doing the same.
        Our portion of the Colorado River's water comes from the San Juan, a tributary to the Colorado that rises in the mountains of southwestern Colorado and snakes its way through the deserts of northwestern New Mexico before dumping its contents into Lake Powell.
        The Colorado River Compact allows us to use a share of that water, in the San Juan Basin itself and via a diversion across the Continental Divide, for use in the Rio Grande Valley.
        For now, that supply appears relatively secure. But there are signs of trouble on the horizon.
        For starters, there is the San Juan itself, and the larger river it feeds, the Colorado.
        As the accompanying graph of U.S. Bureau of Reclamation data shows, average natural flows on the San Juan, calculated before dams and diversions move water out of the river for human use, are the lowest they have been in nearly a century. The Colorado River as a whole has the same problem.
        Scientists who study the river say climate change caused by rising greenhouse gases are likely to cause lower river flows in the Colorado River Basin in the 21st century. Researchers cannot definitively attribute the current shortfalls to climate change. But the current record low flows are consistent with their projections.
        That problem exposes the mistake embodied in the Colorado River Compact's Article III(d).
        When representatives of the seven basin states and the federal government gathered in 1922 to decide how to share the Colorado's water, they settled on a plan to divide it in half between the upper and lower basin states.
        But rather than allocate half the available water to each, they made the mistake of putting hard numbers on the allocation. They thought, based on a couple of decades of records, that the Colorado's average flows were about 16.5 million acre-feet per year. So the compact allocated 7.5 million acre-feet of that for the upper basin states and 7.5 million acre feet for the lower basin states, with the rest going to Mexico.
        And then Article III(d) says this: "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." That averages out to 7.5 million acre-feet per year.
        Translated into operational details, Kenney and most other water law experts say that means the upper basin states are legally required to pass along 7.5 million acre-feet of water per year (plus some more to meet our legal obligation to Mexico).
        And if climate change, or long-term drought, reduces the total amount of water in the river? Ultimately, it could be up to the U.S. Supreme Court to decide whether "will not cause ... to be depleted" means the upper basin states, including New Mexico, would have to deliver the full 7.5 million acre-feet each year, even as the river shrinks.
        Kenney and most other legal scholars agree the compact seems to be saying Nevada, Arizona and California get their 7.5 million acre-feet no matter what.
        "The upper basin states bear the risk of climate change," Kenney said.
        Kenney may be wrong. There are upper basin water lawyers and managers who argue different legal interpretations are possible. But it's a risk worth taking seriously.
        UpFront is a daily front-page opinion column. John Fleck can be reached at 823-3916 or jfleck@abqjournal.com.
       



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