Lower Basin states deserve a pat
on the back for contingency planning

In the headwaters state of Colorado we like to say, “It’s better to be upstream with a shovel than downstream with a lawyer.” So it comes as no surprise that one of our favorite Colorado River pastimes is harping on downstream goliaths Arizona, California, Mexico, and Nevada for using too much water. Just as we sometimes criticize behavior in that thirsty part of the basin, so too should we give credit when credit is due.

The two nations and the basin states have worked hard over the past several years to accomplish Minute 323. What’s a “minute,” why does it matter to Colorado, and why do the downstreamers deserve a pat on the back?

The 1944 U.S.-Mexico water treaty states the basic agreement between the two countries regarding water in the Colorado River. It also provides that those basic points will be implemented through “minutes” that will be developed and agreed to by both nations. 

In the U.S., the Colorado River Basin is divided into an Upper (Colorado, Utah, New Mexico, Wyoming) and a Lower (Arizona, Nevada, California) basin, and each of the seven basin states is represented by principal negotiators in interstate and international discussions on this hardest working of Western rivers (serving approximately 40 million people in both the U.S. and Mexico, 246,000 square miles, world’s fifth largest economy). I take great pride in representing the state of Colorado on this river. My counterparts in the other basin states, each to a person credible individuals and sharp negotiators, are engaged in interstate talks to establish contingency plans for the Colorado River should dry periods persist as recent history and many climate models suggest.

This work matters to Coloradans because our entire state benefits from the Colorado River. If every state and Mexico uses as much as it would like, a supply-demand imbalance exists on the Colorado River. For many years, the Lower Basin has drawn more water from Lake Mead than comes in from Lake Powell. Think of your checking account:  If you consistently spend more than you earn, you’re going to run a deficit. We’ve called this imbalance the “structural deficit” because our system is currently structured to allow more withdrawals than incoming supply.

So why do the downstreamers deserve a pat on the back? Two reasons.

First, the Lower Basin acknowledges that the river’s projections fluctuate wildly from month to month, sometimes week to week. Readers of this paper know that, in the Upper Basin, we are used to wide swings in water availability from year to year and we maintain flexibility in our water management as a result. If you hadn’t experienced this variability, if you sat below the nation’s two largest reservoirs, it would be easy to put off water shortage discussions until later, maximize your water withdrawals every year, and leave the issue for some future generation. But the Lower Basin isn’t taking the short-term gain/long-term pain approach and that’s commendable. Just as we in the Upper Basin are working on a drought contingency plan, so too is the Lower Basin driving hard at a drought contingency plan that will define how shortages are shared.

Second, these contingency plans benefit from some understanding with the Republic of Mexico about how water shortages would be shared internationally. Officials in the Basin States and Mexico realize we are all better off with greater certainty on this point and have agreed to Minute 323 to the 1944 U.S.-Mexico water treaty. The Minute — which addresses water shortages, water for the environment, investment in water projects and salinity — smooths the runway for the Basin States to land drought contingency plans.

Thankfully, our Lower Basin counterparts appreciate our differences as well as the symbiotic nature of the two basins and are working hard to help the varied interests in their states understand the long-term value in more measured reservoir releases from Lake Mead. They recognize that big water releases from Lake Mead present only short-lived highs (insert your worst Colorado marijuana joke) and longer-term hangovers (insert tired old “whiskey’s for drinking, water’s for fighting” quote). Put another way, large releases of water from Lake Mead, while they may benefit some users in the short-run, are more painful for everyone in the long-run. Instead, more measured releases from Lake Mead, combined with shortage-sharing agreements, form the recipe for the seven basin states’ sage stewardship of this river.

Both basins agree that these negotiations are complex, collegial, at times contentious and always passionate. After all, it’s water we’re talking about! Each state maintains a sense of urgency to craft our contingency plans, not solely due to fear of additional dry years, but primarily because we sense an opportunity. We currently have the right personalities, focused on the right issues, at the right moment in time to achieve successful management of the Colorado River.

Moreover, the governors in each of the seven basin states may be of different political parties but they share a commitment to wise water management and leaving the Colorado River system better than they found it. Arriving at a mutually-agreeable path forward to protect critical water storage levels in Lake Powell and Lake Mead that all of us should embrace and follow.

We have much work to do and I’m not advocating anything silly, (like rooting for the Diamondbacks or the Dodgers… and certainly not the Nationals), but I for one, tip my cap to our Lower Basin counterparts for engaging in the sometimes tough conversations about how we best manage the Colorado River for the long-term sustainability of the entire system. #GoRockies!

James Eklund is a fifth generation Coloradan from the Western Slope, the State of Colorado’s representative on the Colorado River, and an attorney with the firm Squire Patton Boggs.


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