Equity and the Colorado River compact.

• Author: Robison, Jason A.
• Position: V. Realizing Equity through VI. Conclusion, with footnotes, p. 1192-1209

5. REALIZING EQUITY

   In our view, the Colorado River Compact's commitment to "equitable division and apportionment of the use of the waters of the Colorado River System" (185) constitutes a venerable precedent that should guide Colorado River governance on an intergenerational basis. We acknowledge that people hold diverse views on the meaning of equity in the context of water allocation--both in terms of the factors associated with the norm and their relative priorities. We recognize (and embrace) the fact that these views change across time. We likewise make no originalist claim that our conception of equity mirrors exactly ideas about the norm held by the commissioners who formed the Compact almost a century ago. Notwithstanding these caveats, we subscribe to the basic notion that our society's varied, evolving ideas about fairness should shape schemes apportioning water use from the Colorado River System, including governance structures devised for these schemes. The Law of the River's ongoing evolution should not proceed simply based upon the principle of might-makes-right translated into political or economic terms. (186) Positioned as the cornerstone of the Law of the River, equity should be a lodestar for dialogue about the future of the Compact (187)--a dialogue of critical importance to the Colorado River and the roughly 30 million people dependent on its water. (188)

   To what extent does the Compact fulfill its commitment to equity? What equity-related concerns need to be taken into account if we are serious about honoring this commitment in contemporary times? How should we move forward in light of these concerns? What exactly should be done to address them? The questions are majestic ones that we can only begin to engage in this Part. We do so by focusing on the principles of equity set forth in Part III. (189)

   Relying on these equity principles, we highlight three salient issues below, each of which bears significantly on the perceived equity of the Compact's apportionment scheme and warrants consideration in contemporary discourse about Colorado River governance. Two of these issues pertain to the principles of substantive equity and are examined in the first section. We begin this section by drawing attention to the questionable distributional fairness of the Compact's apportionment scheme--specifically, in relation to how the scheme (depending upon how its key terms are interpreted) calls for allocating water between the Upper and Lower Basins in light of current and projected future hydrological conditions. After fleshing out this initial issue, we proceed to evaluate the Compact's apportionment scheme in relation to the principle of flexibility, illuminating the arguably skewed balance struck by the scheme with respect to this principle and the principles of fidelity and reliability. Subsequently addressed in the second section, the final issue broached below relates to the principles of procedural equity as they bear on the need for a functional governance structure to ensure the apportionment scheme is implemented. We broadly discuss the potential creation of a formal governance entity for this purpose.

   1. Substantive Equity

      1. Reciprocity

         The principle of reciprocity can be summarily stated as follows for our purposes: Apportionment schemes should strive for distributional fairness in terms of how they define entitlements (permitted types and amounts of water use), allocate entitlements among different types of water users, and establish the relative priorities of entitlements. (190) This principle is relevant for considering a wide range of matters associated with the Law of the River, including historical and contemporary issues related to entitlements held by American Indian tribes in the Colorado River Basin as well as entitlements held for environmental purposes (e.g., for national parks and other federal lands). (191) Stemming from our core interest in the Compact, we focus on reciprocity in this section solely with respect to relations between the Upper and Lower Basins as they are defined by the Compact. (192) The takeaway point is that pressing questions currently exist regarding the distributional fairness of the Compact's apportionment scheme--specifically, the amounts of water potentially available for use in the Upper and Lower Basins based on their respective entitlements and obligations under the Compact. These fundamental issues of equity need to be addressed proactively in ongoing dialogue about Colorado River governance.

         As detailed above in Part II, (193) the provisions of Article III framing the Compact's apportionment scheme evidence a recurring emphasis on distributional fairness with respect to Upper Basin--Lower Basin relations. Article III(a) confers annual entitlements of equal size (7.5 maf) to the Upper and Lower Basins. Article III(b) increases the Lower Basin's entitlement by 1.0 maf but nonetheless leaves the overall apportionment fairly even--7.5 maf and 8.5 maf, respectively. Article III(c) calls for treaty water to be supplied to Mexico from flows beyond those spoken for in Article III(a) and (b) if possible, and it requires this obligation to be borne equally by the Upper and Lower Basins if these flows need to be tapped into. Similarly illustrative is the decadal flow obligation imposed on the Upper Division states by Article III(d)--75.0 maf every consecutive ten years. (194) Irrespective of the specific amounts of these mandated flows (a disputed issue (195)), requiring them on a decadal basis rather than an annual one affords the Upper Division states flexibility in coping with flow variability year to year. Article III(e)'s proscription against water hoarding also is relevant here, prohibiting the Upper Division states from withholding water, and the Lower Division states from requiring the delivery of water that cannot "reasonably be applied to domestic and agricultural uses."

         Notwithstanding the indicia of distributional fairness contained in these provisions on paper, a different picture emerges when the conflicting interpretations of the provisions--and the allocation patterns stemming from these interpretations--are examined in light of current and projected future hydrological conditions in the Colorado River Basin.

         The Lower Basin tributaries issue provides an initial illustration of this point--specifically, as it bears on the scope of the Upper and Lower Basins' entitlements in Article III(a) and (b). Simply put, if these provisions were interpreted as excluding the Lower Basin tributaries from the Compact's apportionment scheme, the Upper Basin would be entitled to use 7.5 maf of water from the Colorado River mainstem and tributaries collectively per year, while the Lower Basin would be entitled to use 8.5 maf of water annually from the mainstem alone. (196) Water use from the Lower Basin tributaries would not be governed by the Compact. This exemption holds obvious implications for the Compact's perceived distributional fairness.

         Although it is unclear precisely how much water is available for use from the Lower Basin tributaries on an annual basis, several figures suggest this amount is not nominal. Covering the five-year period from 2001 to 2005, the Bureau of Reclamation's most recent Consumptive Uses and Losses Report containing these figures identifies the average amount of water use from the Lower Basin tributaries as approximately 2.19 maf per year, excluding water uses categorized as "exports" in the report. (197) The annual average is 3.74 maf if these "exports" are accounted for. (198) Equally indicative of the potential significance of the Lower Basin tributaries are figures recently produced by the Bureau of Reclamation in conjunction with its basinwide water supply and demand study identifying annual use levels for the Gila River alone (the primary Lower Basin tributary) as falling between roughly 3.25 maf and 3.5 maf per year from 2001 to 2005. (199)

         Solely for the sake of discussion, if we treat the amounts of water used out of the Lower Basin tributaries in the figures above--e.g., the 3.74 maf annual average from 2001 to 2005 (again, accounting for "exports")--as representing a hypothetical "tributary entitlement," and we assume the Lower Basin also were to possess an 8.5 maf mainstem entitlement stemming from a favorable interpretation of Article III(a) and (b), the total amount of use authorized by the collective entitlement would be 12.24 maf per year. As noted above, the Upper Basin's annual entitlement would be 7.5 maf in the same circumstances. Although the former figure (12.24 maf) is used here only for purposes of illustration, the overarching point is that the Lower Basin tributaries issue implicates a potentially significant amount of water and a correspondingly altered ratio between the Upper and Lower Basins' entitlements as those are set forth in Article III(a) and (b).

         In addition to the Lower Basin tributaries issue, the Upper and Lower Basins' conflicting interpretations of Article III(d)--that is, the decadal flow obligation imposed on the Upper Division states--play a critical role in determining the relative amounts of water available for use in the Upper and Lower Basins. If Article III(d) were interpreted as imposing a static delivery obligation per the Lower Basin's view, an amount of water far short of the

         Upper Basin's ostensible 7.5 maf entitlement potentially could be available for use in that sub-basin. As discussed above in Part IV, paleo reconstructions estimate average annual flows of 13.0 maf to 14.7 maf at Lees Ferry, (200) and the vast majority of climate change models project 10% to 30% declines in these flows by mid-century. (201) If we rely on the more conservative estimate of 10% declines, the corresponding range of average annual flows at Lees Ferry is 11.7 maf to 13.2 maf. In turn, if we deduct 7.5 maf from these amounts--assuming the 75.0 maf flow obligation in Article...