Becky Mitchell and Doug Kenney had much to say at Crested Butte. Just as important may have been what they did not say.

 

by Allen Best

The apple cart of the Colorado River has been upset for 25 years, and Doug Kenney and Becky Michell were on stage June 24 at the Crested Butte Public Policy Forum to talk about the bruised apples.

There’s broad understanding that what worked in the past won’t work in the future. As to what will work — ah, well, that has yet to be resolved. “So far, we haven’t really been able to pull the demands down as quickly as supplies have been going down,” said Mitchell.

Adding tension to the conversation is another so-so or worse spring runoff in the river. Despite a decent snow year in northern Colorado, yet another early, warm and mostly drier-than-usual spring has produced an anemic projected runoff of a little over 9 million acre-feet. Average runoff into Lake Powell has been 12 million in recent years. The compact governing the river between the three lower-basin states and the four upper basin states assumed at least 20.

 

Kenney directs the Western Water Policy Program at the University of Colorado Boulder’s Getches-Wilkinson Center. The program puts on a conference each June that is considered one of several must-attend events for those drawn to the unceasing drama about Colorado’s namesake river.

The river and its tributaries provide water for farms almost to Kansas and Nebraska and, on the west side, to 23 million people crowded along the Pacific Ocean in southern California.

In Crested Butte, Kenney said that unlike other people in Colorado River discussions, whether they represent environmental or agriculture organizations, he enjoys a rare freedom. “I tell people sometimes, I don’t have a dog in the fight, and by that, I just mean I don’t have to represent an interest.”

Then he added: “That’s not entirely true.” He went on to confess that when he sees the Colorado River “sometimes it gives me goosebumps. And I’m not a goosebumps sort of guy.”

Mitchell shared that she was a “solid B student” who had grown up in Hawaii before arriving in Colorado to pick up two degrees at the Colorado School of Mines. She worked primarily as a consulting engineer before becoming the director of the Colorado Water Conservation Board. In 2024, Gov. Jared Polis named her to a new position in Colorado government: the state’s negotiator on Colorado River issues.  Unlike others in such roles, she’s not a lawyer.

“Often I think of everything as a math problem,” she said. “And a lot of what you see with the Colorado River is a math problem. It’s kind of simple math, almost like just addition and subtraction, not even algebra or multiplication.”

The two provided a high-level, yet sometimes detailed overview of the Colorado River during their hour on stage. However, students of the Colorado River, especially about the dramas, might have wanted another hour and the opportunity to ask additional questions.

For example, what do they make of the so-called “natural flow proposal” that was first formally discussed at a public meeting earlier that day in Arizona. As reported by the Las Vegas Review-Journal, this would base the release of water from Lake Powell on a three-year average of the “natural flows” of the river.

In their comments at Crested Butte, Mitchell and Kenney both broadly identified the need for the river to be shared in ways aligned with what Mother Nature is delivering, not a century-old compact.

Later, at a different meeting, Mitchell had this to say: “What we know today is that for any approach to work, it must be supply driven, perform well under both dry and varying hydrologies, and adapt to uncertain future conditions fundamental to this ‘divorce,’ or how we call it in Colorado, the conscious uncoupling.’”

Others might have asked Mitchell about the tensions behind the closed-door sessions — and the things that Kenney mentioned she could not really talk about in a public forum.

Or about the amount of water used to grow hay, including alfalfa, and other fodder crops for livestock. A 2020 study published in Nature Sustainability found that 55% of the water in the Colorado River Basin altogether goes to crops to feed primarily cattle. In the upper basin, it’s much higher.

Mitchell and Kenney did talk about Mead and Powell, the two big reservoirs in the basin, as all Colorado River conversations must.

“Those are the two biggest reservoirs in the United States, and they happen to fall on a river that’s not even one of the top 20 biggest rivers in the U.S. in terms of volume,” observed Kenney. The reservoirs were close to full 25 years ago. Now, they’re two thirds empty. “Optimists would say one-third full,” he said.

If you have more water going out than you have coming in, he explained, you have a mass balance problem. “That’s happening 8 out of 10 years. More water leaves than is coming into the reservoirs under guidelines adopted in 2007. Those interim guidelines govern operations, including how much water is released from the reservoirs and when.

“When we talk about Big River issues right now, the Big River issue is getting the system into balance and bringing back the sustainability of the system,” Kenney explained.

Management of the reservoirs was premised on meeting demand. To be more precise, demands of the lower-basin states. Until relatively recently, the lower-basin states were taking an average 10 million acre-feet even if the river delivered only 5 to 10 million acre-feet for the entire basin. Having two big reservoirs upstream allowed them to ignore the winters of scant snow in the headwaters and the rising spring temperatures that spiked evaporation and transpiration.

The first big shock was in 2002, when the river delivered only 3.8 million acre-feet. That was bad, very bad. But the reservoirs still had a lot of water. And there had been bad snow years before. In 1934, for example, the river delivered only 3.9 million acre-feet. And in 1977, a cold but uncommonly snowless winter, it had delivered 4.8 million acre-feet.

A big snow year did not soon follow 2002, so the states, guided by the Bureau of Reclamation, came up with a sort-of short-term set of solutions called the 2007 Interim Guidelines. Those guidelines remain in effect but are to be replaced with new guidelines. That’s a way of saying how the river is to be managed and, more precisely, who gets what and when. They’re called the post-2026 guidelines.

As were the 2007 guidelines, these will be interim, because the hydrology of the Colorado River Basin is not static. It is changing, with some concern that the river, already slimmed down from its 20th century average, will continue to shrink. The Colorado River Compact that was devised in 1922 to apportion the river’s waters assumed somewhere around 20 million acre-feet. This century the average has been 12.5 million acre-feet.

“The math problem is becoming worse,” said Kenney.

It will likely worsen. Some scientists have projected a further decline in decades ahead, conceivably to an average 10 million acre-feet or less.

How to shrink demands to correspond with the shrinking river?

Mitchell offered some thin optimism. Demands have ceased to rise. They have actually declined. The lower-basin states have reduced their take from the river to 7.5 million acre-feet.

That’s what the compact apportioned. But again, the compact from 1922 was flawed. It assumed more water than the river has delivered. Because of the two big reservoirs in the deserts of Utah and Arizona, the lower-basin states have been able to get their 7.5 million acre-feet (and more, until relatively recently). Arizona and California take way more than half of the river’s harvest. And because the upper-basin states were not taking their full allocation, they could get away with it without causing harm.

The 21st century combined with the aridification caused by rising temperatures have forced the issue. Even so, the reckoning has come slowly. The lower basin states did not reduce demand to stay within the compact until forced to by a declared shortage in August 2021.

While the decision was not a surprise to veteran Colorado River watchers, it vaulted the Colorado River troubles high into the national consciousness. The story ran on the front page of the New York Times: “In a First, U.S. Declares Shortage on the Colorado River, Forcing Water Cuts.” Arizona farms took the brunt of this declaration, but as the Times noted, wider reductions loomed as climate change continues to affect flows into the river.

The upper-basin states have been averaging 4.4 to 4.5 million acre-feet, far less than the 7.5 million acre-feet apportionment in the compact. How much they take depends upon how much it snows and rains.

“We have highs and lows because of hydrology. That can shift a lot. A really good example is from 2021 to 2022. Our use was 4.9 (million acre-feet), and then it went down to 3.9 the following year. That wasn’t because we’re amazing people.”

It was, Mitchell explained at Crested Butte, as she does in all of her talks, because the upper basin is limited by what Mother Nature actually delivers. The upper basin has no big dams upstream to serve as an aqua bank account. It has to moderate demand based on what kind of snow — and rain — year occurs.

When there’s insufficient water, the state engineer in Colorado and his district engineers cut off water users, mostly ranchers irrigating grasses.

The compact struck among the four-upper basin states in 1948 used a more common-sense approach for how to allocate the 7.5 million acre-feet in the 1922 compact. It allocated the water among the four states based on proportions. Colorado gets a little more than half — and uses most of it. Wyoming has never come close to developing its share. Regardless, the rule of percentages makes sense for an uncertain hydrology.

“We realized real quickly that Mother Nature reigned supreme,” said Mitchell. I would be in big trouble if I said the lower basin should do the same. I think they should, but they’re not there yet.”

Mitchell used an analogy to describe the difficult transition for the lower basin. It is much harder to take candy from a baby after they have it,” she said.

“It’s going to be hard for them, and my heart goes out to them. But we have an example up here of how it works. Seniors work with juniors,” she explained, using the shorthand for senior and junior water uses under the prior appropriation system governing water use in Colorado and most Western states. Ag works with environment interests, utilities with agriculture, and so on. They cut deals in advance of water-short years.

“We have examples of how to make it work. You have a budget. You have to work within it. That’s the deal. And sometimes that budget might fluctuate.”

“We’ve not lost all of our junior water-right holders in Colorado because of one bad year or two bad years or three bad years, in a row, because we figure out how to make it work. And what we are saying to the lower basin is figure out where the deals are to be made.

And she drew upon her childhood for another dynamic.

“What my mom always said is, you can have anything you want, but you can’t have everything you want.”

Translated to the lower basins, that means “you can’t have chip factories and the largest agriculture in the world and golf courses and pools and Scottsdale and whatever.  You can have the capability to have a strong economy, a sustainable system. You just can’t have it all.”

The federal government, through the Bureau of Reclamation, an agency housed within the Department of Interior, built the dams. Reclamation manages the dams. As Mitchell said, they turn the spigots. The onus is on the states to create a solution, an agreement of how to share the shrinking river, but the federal government could step in, if forced to. Mitchell said the feds don’t want to.

“They really want a consensus deal with the seven states,” she said. That’s a hard thing, because there’s no way to do this without change. The math is the math. The facts are the facts. There’s not the 50 million acre-feet in these reservoirs that there were when these (2007) guidelines started. And so the consensus is harder.”

Mitchell said she wouldn’t disparage those who created the now obviously flawed 2007 guidelines. Climatologists had suggested only a 3% probability of the runoff that has happened since then would come to pass.

“What we’re trying to create through this federal process is something that can handle all the hydrologies. How do we all suffer when the river is suffering? How do we all benefit when the river is flush? And what does benefit look like? That’s different in the upper basin than in the lower basin.”

The federal government in this case has been nudging the states toward agreement.

“They’re trying to say, ‘You know, you might be able to open up different project funding if you guys can get to a deal.’ We know we need a deal. I’m not going to promise you that we’re going to get there, but it is a goal. And (the federal agencies) are part of that goal. They don’t want to make the hard decisions of cutting people off. They are the water masters in the lower basin. They can turn the valves, and that’s their role.”

Added Kenney: “Typically the states are happiest when the federal government is silent, (but) sometimes it’s helpful to have a federal government that is throwing out some ultimatums and some deadlines and some threats.”

In the last six months, the federal involvement in the negotiations has grown, and it might grow yet. But a big part of the process — as Mitchell had said — is that the states need to be coming up with their wish list for Congress for consideration next spring.

“So there is a federal role,” Kenney summarized. “It evolves based on how the states are doing. But the tradition is you want the feds to stay away until it’s time for someone to write the check.”

MItchell had the last word. She again pointed to the meager runoff from this year’s upper-basin rivers, source of 92% of the river’s water. Runoff is projected at a little more than 5 million acre-feet into Powell, which is to release 7.48 million acre-feet to the lower basin.

Again, it’s a match problem. And it could get worse.

“If next year looks anything like this year, or even as a 12 million acre-foot river, actions absolutely have to be taken., and those actions are going to be greater than anybody has put on the table voluntary.”

 

Other comments:

Tribal water rights

The Colorado River Basin has 30 federally recognized tribal nations, most in Arizona and California. Colorado has two, the Southern Utes and Ute Mountain Utes. The other upper-basin states have four others.

Under the Winters Doctrine of 1908, the Supreme Court ruled that when the federal government forced native Americans onto reservations, the guarantee of water rights was implicit. By that reckoning, about 25% of the total water in the Colorado River belongs to the 30 tribes. Only a few have made full use of that water.

“How will those water rights factor into the post-2026 negotiations?” Mitchell and Kenney were asked.

“I’m taking that one,” responded Mitchell. She pointed to work in the upper basin through a memorandum of understanding that allows them to develop the settled but undeveloped rights.

“We’re working with them to figure out how to have that water acknowledged in some way, and if they’re choosing not to develop it at this time, so that there’s some recognition of that.”

She added: “I’m not going to tell you that we have an answer yet, but I’m going to tell you it’s one of the highest priorities.”

Kenney offered a few nuances, pointing to the statement that Daryl Vigil, who is from the Apache tribe in northern New Mexico and represents a coalition of 10 tribes, always uses at the front end of his comments at conference: “If you know one tribe, you know one tribe.”

While the tribes will say that the negotiating table should have 37 seats, because they all represent sovereign governments, “in practice it’s completely unmanageable,” said Kenney. Add in Mexico and federal government, and there are 39 seats

“By and large, the tribes will tell you that they don’t think what’s happened to this point has been anywhere near adequate. I personally have to agree with that,” added Kenney, “But by the same token, it’s not at all obvious what the better approach is. So we muddle along, as we do in public policy processes.”

 

Which state negotiator has the toughest job?

Kenney said Arizona’s negotiator, Tom Buschatzke, has the toughest job among the state negotiators.

“If there’s an agreement among the seven states, in Arizona you have to take that back to the legislature for approval, whereas the process in the other six states is simpler — not that it’s simple anywhere.”

Negotiators, he explained, have to balance all the different nuances in their states and then return to the negotiating table. “This is an incredibly difficult job.”

Kenney also drew attention to Nevada, which has the smallest apportionment of all seven states, just 300,000 acre-feet, a reflection that Las Vegas in 1922 was a very, very small town. Now, the population of metropolitan Las Vegas pushes 2.4 million.

Every other state has agriculture, and Las Vegas — the sole beneficiary of Colorado River water in the state — does not. That’s unlike Colorado or Arizona, which have both agriculture and urban populations, with some flexibility of supplies. On the other hand, Las Vegas gets 90% of its water from the Colorado River, with the remaining 10% from groundwater.

 

Interplay with Western Slope and Front Range

This was in Crested Butte, so of course there was the question about tension between the Front Range and the Western Slope, the headwaters of the Colorado River.

“I am here to protect all of Colorado, and we have to stand together as a state if we are to stand a chance,” responded Mitchell.

“There are going to be times for battle within our own states. There are going to be times for issues between the upper-basin states. Now is not that time, please.”