An unprecedented public appearance by six of the seven commissioners who are negotiating the future of the Colorado River revealed how divided they are on solutions, and just as importantly, where they agree.

The commissioners and state representatives spoke at Thursday’s 2024 Getches-Wilkinson conference on the Colorado River at University of Colorado Boulder’s law school. 

The commissioners showed up together at a critical juncture — they are in the thick of the talks to come up with an agreement that would manage allocations and ensure that America’s two largest reservoirs, both located in the Southwest, don’t fall below critical water levels.  

In addition, the negotiations are geared toward protecting the health of the river, which 40 million residents across several states rely on for drinking water.   

That agreement is supposed to be in place starting in 2027.

One of their more striking differences is in just what defines the health of the Colorado River system.

The proposal submitted to the Bureau of Reclamation in March by the Lower Basin states wants to judge that health based on seven reservoirs in the system. In addition to Lake Powell and Lake Mead, that also includes Flaming Gorge in Utah, Blue Mesa in Colorado, and Navajo, which straddles the Colorado-New Mexico borders.

The seven reservoirs also include Lake Havasu in Arizona and Lake Mojave, which straddles Arizona and Nevada. 

The Upper Basin states of Colorado, Wyoming, New Mexico and Utah want that health judged only on the two largest reservoirs — Powell and Mead, both directly on the Colorado River. 

Is a seven-state solution possible?

Colorado’s commissioner to the Upper Colorado River Commission, Becky Mitchell, said a solution is not only realistic but absolutely essential. 

However, she also hinted at breakdowns in the process due to the difficulty of the conversation, which frequently focuses on who gets their water, who doesn’t and by how much.

Mitchell acknowledged the concerns around competing proposals but said she believes there are also similarities and real opportunities within those proposals. She expressed concerns about what the federal government might do — but that’s minor issue, she said, “to what Mother Nature is telling us.”

John Entsminger, the general manager for the Southern Nevada Water Authority, noted that the conversations are now about 30 months away from the deadline, which he likened to the second or third inning of a baseball game.

One question yet to be answered is what will happen after the November election and who will be responsible for making decisions on environmental impact statements. Whether one is talking about the Upper Basin or Lower Basin solution, Entsminger said, it is important “to keep our hands on the steering wheel, and whatever the rules of the road are, come January 1st, 2027, we want to be the ones” to implement solutions.

That notably includes what everyone is doing to use less water, Entsminger said.

“We can argue all day about what triggers Lower Basin shortages, but none of that’s going to matter if we’re not (fitting) our water usage across seven states and two countries to the amount of water that that is actually available,” he said.

A realistic timetable?

Estevan López, who represents New Mexico on the Upper Colorado River Commission, said his agency would keep working toward consensus. However, he disagreed that there had been a breakdown, referring to it as a “hiatus,” which he called indicative of complex issues.

“We’ll work on it for as long as it takes,” he said.

Gene Shawcroft of the Colorado River Authority of Utah said while the challenges ahead are enormous, he agreed that all seven states are committed to a solution. He attributed the delays to the need for everyone to do their homework once the proposals from the Upper and Lower Basins were submitted.

“It’s hard enough to understand one state’s concerns if you live in that state,” he said. “It’s another thing to try to understand and have empathy and an understanding of what’s going on in the other six states. So, yes, we are talking, we, we are committed and we’ll continue to work together.”

JB Hamby, chairman of the Colorado River Board of California, drew a timeline of where things stood just six months ago and noted that, while there had been pauses, there had also been progress. 

“It was a very unpleasant time. You had six states versus California,” he said. “The reservoirs were on the brink of collapse. And four months later, what materialized was the largest conservation pact ever in the history of the West. 

“All seven of us are in consensus about one very important critical thing,” he said, referring to the structural deficit that has pulled the river down to where it stands today, particularly when looking at the last 20 years of record-breaking drought.

“So, the fact that we have a seven-state consensus to exceed that structural deficit, come up with a plan to reduce by 1.5 million acre-feet a year, not just resolving the structural deficit, but rebuilding storage gradually, that’s a huge deal, as well,” he said.

Hamby said these examples of “sometimes contentious conflict, quickly turning around and into really productive, even exhilarating periods is a good thing,” adding he believes a solution is reachable.

How are negotiations going?

That question went to Tom Buschatzke of the Arizona Department of Water Resources.

“I think we share some really important common themes,” he said, adding that include the states controlling their destinies — and not judges or Congress deciding the fate of the states, water users, tribes and the river.

“We don’t want litigation,” Buschatzke said.

Third, the states must live within what’s available from the river, and that’s hardest to figure out, he said. Finally, everyone must recognize the impacts of the shortages — and cuts — that everyone has taken to date and will have to take in the future. Arizona has had more cuts to its water allotment from Colorado than any of the other six states.

These are principles all seven states can hold in common, Buschatzke said.

How will the seven states address the issues of litigation, legislation and negotiation?

Colorado’s Mitchell has said previously that she wanted to avoid the U.S. Supreme Court but could not accept a plan that did not acknowledge the existing shortage in the Upper Basin states.

So, will the seven states commit to avoiding litigation?

Entsminger said that’s not a question all the panelists can decide.

If he can negotiate a good enough deal, one that would reduce Nevada’s allocation by 15%, for example, he said he could sign that.

However, if a negotiated process fails and the federal government tries to impose something viewed as unreasonable unilaterally, “we reserve our options to defend ourselves.”

Buschatzke said he is in the same place: “We have to assess the outcome and we reserve the right as well to be there if we have to.” 

Entsminger added no one could guarantee that litigation is off the table.

“But our job is to not let it get there,” he said. 

The ‘worst option’

Hamby said litigation “is the absolute last and worst option on the table,”  adding there’s a reason interim guidelines exist.

“We’re not trying to define what the permanent future of the river is,” he said, but the basin states are making fixes and agreeing to changes, such as the 1.5-million-acre-foot reduction the Lower Basin states agreed to last year.

He explained that spending a fraction of the effort on fixing the problem, rather than what it would take to go to the Supreme Court, would be a better solution.

Colorado’s Mitchell also described litigation as a worst-case scenario, but added that every state has a responsibility to their own water users.

The proposals

The Upper Basin proposal is a supply-based operation where uses are reduced to the amount of water available, New Mexico’s López said. The Upper Basin states also want to ensure their proposal is consistent with the “Law of the River,” otherwise known as the 1922 Colorado River Compact and ensuing agreements.

However, López acknowledged the differences in how that law is interpreted.

The intent, he said, is to reduce the risk of depleting supplies to both Mead and Powell. The proposal also must address the imbalance between supply and demand. He complimented the Lower Basin states for recognizing the river’s structural deficit — more water desired than available — and their commitment to 1.5 million acre-feet reductions.

López pointed to one of the big differences between the two proposals the Upper Basins believe that Powell and Mead should measure the system’s health, and the Lower Basin states believe that it should be based on Powell, Mead, and the other five reservoirs. He said there’s little to be gained by looking at the other reservoirs, given that their levels remain relatively constant.

Entsminger said the seven-reservoir trigger had nothing to do with the operations of the Upper Basin reservoirs and instead is a “sound proxy” for how to address shortage concerns in the Upper Basin, using a three-year average of what is actually used by the Upper Basin states.

“If they’re using more, that means the river is healthier and Powell should be able to release” more water downstream,” he said. 

Hamby added that California reduced its water allocation by 800,000 acre-feet per year 20 years ago and will reduce it further by 440,000 acre-feet under the more recent 1.5 million acre-feet agreement. Most of this comes out of one irrigation district, he noted.

“Climate change is going to require us all to do more. So, everyone who uses water can certainly use less,” Hamby said. 

Hamby later noted that Los Angeles County has more population than all four Upper Basin states combined, so trying to get California, Arizona, and Nevada to use the same amount of water as the Upper Basin states is not practical. He also pointed out that the negotiations are not solely among the seven states and that also at the table are 30 federally recognized tribes, which all have water rights, with some more senior to any state’s.