Equity and the Colorado River compact.

• Author: Robison, Jason A.
• Position: I. Introduction through IV. A Contemporary Perspective on the River and Compact, p. 1157-1192

1. INTRODUCTION II. "EQUITABLE DIVISION AND APPORTIONMENT" VIA THE COMPACT A. The Spirit of Equity B. Apportionment Scheme C. Governance Structure III. ON "EQUITY" A. Context B. Principles 1. Substantive Equity 2. Procedural Equity IV. A CONTEMPORARY PERSPECTIVE ON THE RIVER AND COMPACT A. A River No More? B. Cracks in the Foundation 1. Flows to Mexico a. Lower Basin Tributaries b. "Surplus" Water c. Channel Losses 2. Flows to the Lower Basin V. REALIZING EQUITY A. Substantive Equity 1. Reciprocity 2. Flexibility B. Procedural Equity VI. CONCLUSION I. INTRODUCTION

   It might be impossible to overstate the importance of the Colorado River to the southwestern United States--both within the Colorado River Basin and across expansive adjacent areas dependent on the river's life-giving flows. (1) In innumerable ways, the river has shaped the face of the region. It has facilitated, and continues to enable, the growth of major metropolitan areas like Albuquerque, Denver, Las Vegas, Los Angeles, Phoenix, Salt Lake City, and San Diego) It provides lifeblood for hallmark national parks of unsurpassed natural beauty and immense cultural, historical, and scientific value, including the Grand Canyon. (3) It gives sustenance to diverse American Indian tribes struggling to create viable homelands in modern U.S. society, (4) as well as to myriad farming and ranching communities whose labor feeds the nation (and beyond). Measured by any metric--economic (5) or otherwise--the Colorado River is a defining feature of the U.S. Southwest. Its fate bears immeasurably on the fate of the region.

   Paralleling the significance of the Colorado River to the U.S. Southwest is the complexity of the body of laws devised for its governance. Colloquially called the "Law of the River," this body of laws encompasses an international treaty, two interstate compacts, a historic U.S. Supreme Court decision (Arizona v. California), (6) and several dozen federal statutes and regulations. (7) Evolving continuously over roughly the past century, (8) the Law of the River stands as a testament to the ingenuity needed to craft a workable interstate water allocation scheme in an arid and semi-arid region where this most precious and coveted natural resource dictates who rises and falls, who enjoys life and livelihood, and who--in no uncertain terms--does not. As does the vitality of the Colorado River, the makeup of the Law of the River bears pivotally on the fates of sovereigns and diverse water users who have critical interests in the river.

   Both the Colorado River and the Law of the River have entered into a critical stage in recent decades. Unprecedented challenges face policy makers seeking to navigate through a period aptly labeled the "era of limits." (9) Painting with a broad brush, the core issue of this era is overuse, an outcome inadvertently facilitated by an earlier period of overallocation. (10)An imbalance between water supplies and demands exists in the Colorado River Basin--with demands exceeding supplies on an annual basis consistently since the early- to mid-2000s--and this gap is projected to widen in the future absent significant reforms. (11) Although several innovative measures have emerged to address this supply-demand imbalance during the past two decades, (12) it remains to be seen whether these measures will be sufficient for this purpose. It is entirely foreseeable--and rings an optimistic tone--that the best is yet to come.

   But what precisely will the "best" legal and policy innovations look like in the future of Colorado River governance? And even more fundamentally: How exactly should these innovations be formulated and consensus reached regarding them? These questions underlie a host of efforts currently under way that aim to assess, in one form or another, the present state of Colorado River governance. Diverse entities are engaged in this assessment process, including a variety of academic institutions, (13) federal and state agencies, (14) private sector participants, (15) and non-governmental organizations. (16) Among these entities is the Colorado River Governance Initiative (CRGI)--a research initiative encompassed within the Western Water Policy Program at the University of Colorado Law School. (17) The work product of the CRGI over the past two-and-a-half years informs the focus and substance of this Article.

   At the core of the CRGI's work is a broad-based normative question: How should the Colorado River be governed in contemporary times? Myriad conditions in the twenty-first century differ from those existent at earlier stages in the Law of the River's history. Climate change is an elephant in the room in this regard, with potentially profound impacts on the amounts of annual flows within the Colorado River Basin. (18) Equally distinct in many respects is the evolving structure of economies at the local, state, and regional levels. A similar perspective applies to advancements in scientific knowledge and technology in fields like climatology, ecology, geography, and hydrology. So too have societal values changed over the past century of U.S. history. We think differently (albeit diversely) about how water ought to be used--both with regard to competing water uses and users. (19) To what extent is the Law of the River responsive to the distinct conditions and values of contemporary times? Conversely, to what extent is it disconnected from contemporary circumstances? The perceived adequacy of Colorado River governance hinges on the varied answers given to these questions.

   Whether pursued by the CRGI or similar entities, any inquiries into the existing state of Colorado River governance necessarily run up against the document positioned as the cornerstone of the Law of the River: the Colorado River Compact. (20) Forged in the spirit of cooperative federalism in 1922, (21) the Compact establishes an apportionment scheme that controls how water is allocated within and adjacent to the Colorado River Basin, a vast drainage area encompassing portions of seven western states--Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming--and two states in northwestern Mexico--Baja California and Sonora. (22) Without delving into the details of the Compact's apportionment scheme, suffice it to say that much like a constitution, (23) this scheme serves as the foundation of the Law of the River. The Compact constructs the framework through which Colorado River governance occurs.

   Should the Colorado River Compact be exempted from the ongoing examination currently underway with regard to Colorado River governance? Is it beyond scrutiny based on (among other factors) the settled expectations it has engendered among the sovereigns and water users dependent on the flows of the Colorado River? (24) No doubt the lives and livelihoods of more than 30 million people are implicated by these questions. (25) They hold significance for all quarters within and adjacent to the Colorado River Basin: the cities, farming and ranching communities, Indian tribes, recreational areas, and the river and landscape themselves. Yet the salience of these questions nonetheless requires they be treated as more than just rhetorical ones. The Compact cannot and should not be left out of ongoing dialogue about the future of Colorado River governance. It is founded on a basic commitment to fairness in water allocation--"equitable apportionment." (26) Pressing concerns regarding the Compact's ability to fulfill this commitment in contemporary times should not be repressed in public discourse. They should be vetted openly and candidly. It is better to know where things stand with the Compact--even if that spot is a tight one that requires the utmost ingenuity and fair-mindedness going forward.

   The work of the CRGI has proceeded from this vantage point since its inception in early 2010. This Article synthesizes a good deal of this work in order to address a basic question foreshadowed in the previous paragraph: Does the Colorado River Compact fulfill its commitment to equity? To be clear, we view this commitment as a venerable one, and we wholeheartedly wish to see the Compact succeed in this regard. A critical step in achieving this success, however, is to "face the music"--that is, to carefully consider the existing makeup of the Compact's apportionment scheme, including conflicting interpretations of its key terms, in relation to current and projected future hydrological conditions in the Colorado River Basin. This inquiry provides much food for thought about the Compact's equity, including identifying several issues to which attention would be well paid if the Compact indeed is to effect an equitable apportionment. Our overarching goal in this Article is to prompt engagement with these issues.

   With this goal in mind, we have broken the Article into four main Parts. Part II lays a foundation. It highlights the express commitment to equity in the Compact's text and provides overviews of the Compact's apportionment scheme and the governance structure devised for it. Part III then takes a close look at the meaning of "equity" as a norm in the context of water allocation. It identifies a handful of principles associated with the norm, grouping these principles' into two broad categories based on whether they involve "substantive equity" or "procedural equity." With these principles as a backdrop, Part IV provides a contemporary perspective on 1) water supply and demand conditions in the Colorado River Basin, and 2) major interpretative disputes looming over key terms framing the Compact's apportionment scheme. Part V offers our views on three significant equityrelated issues stemming from the challenging reconciliation of the Compact's apportionment scheme (again, including interpretive conflicts related to it) with current and projected future hydrological conditions in the basin. We call for these equity-related concerns to be addressed in...