by Allen Best
This past Sunday I visited Bishop’s Lodge, a property recently acquired by Auberge, the operator of 5-star hotels in what the company calls “extraordinary locations.” It has hotels in Aspen, Park City, and Telluride as well as a few dozen other places around the world.
In New Mexico, Bishop’s Lodge is found at the end of a winding, two-lane road in the foothills of the Sangre de Cristo Mountains, maybe 25 minutes from the plaza of Santa Fe. It has all the touches you’d expect of a hostelry that tonight, far from any peak season, asks $800 for a night’s lodging.
But I went for another reason. Bishop’s Lodge is where the Colorado River Compact was negotiated in November 1922. The compact created the platform for the population explosion of the American Southwest during the last century. Even passing students of Western history, which is how I would describe myself, are drawn to places of such pivotal transactions. Whether that seminal document survives another century is another matter entirely.
Representatives of the seven states that have land within the Colorado River Basin had met earlier in the year in Washington D.C. but had failed to reach agreement on terms of a compact governing how waters of the Colorado would be apportioned.
The seven states had diverse motivations for wanting the compact. California needed the compact because it needed the federal government’s help in taming the river’s springtime floods. An effort to build a diversion canal to water the scalding hot desert in what is now called the Imperial Valley had gone awry in 1905. A portion of the river broke free of the channel and, using the new outlet, rushed downhill into a below-sea-level depression that became known as the Salton Sea.
California needed the federal government’s assistance in building dams to hold back those flows so that irrigation infrastructure could be installed and the fertile but parched desert soils could be put into production.
Colorado and other upper-basins states had different reasons for wanting the compact. They were intent on specifying portions of the river’s flows that they could develop when the populations of their more slowly growing states had need for the water. Colorado (and most Western states) use the doctrine of prior appropriation—first in time, first in right—in allocation of water. If this doctrine were applied to the Colorado River, California and Arizona would likely have had their straws in the river far before Colorado could get its diversions in order. This was despite the fact that roughly half of the river’s waters originate in Colorado.
The Colorado River Compact emerged from the negotiations during the week before Thanksgiving. Not everybody got what they wanted, but legislators of all the states save for Arizona had approved the agreement by 1929. In approving construction of Hoover Dam the previous year, Congress had specified that the compact would go into effect when 6 of the 7 states had ratified it. By presidential resolution, the compact went live—to use a more modern word—on June 25, 1929.
Various books have laid all of this out in great detail, perhaps none with greater detail than Norris Hundley’s “Water in the West: the Colorado River Compact and the Politics of Water in the American West.” I’m partial to “Science Be Dammed,” a 2019 book by Eric Kuhn and John Fleck that explores in detail how the compact conceived at Bishop’s Lodge was premised on faulty assumptions. The compact assumed average annual river volumes that had rarely existed. Kuhn and Fleck show that the science was available to the Colorado River delegates gathered at Bishop’s Lodge that should have caused them to revise the apportionments downward. The evidence for more pared assumptions of river flows was even more persuasive in 1929, when Congress ratified the compact. (See my 2020 review of “Science be Dammed” here.)
In the 20th century, there was rarely as much water as the delegates assumed. In the 21st century the river flows have declined 20%. The big reservoirs, 95% full at the end of the 20th century, had declined to 32% full at the end of September 2021. Glen Canyon is emerging once again, as are the now chalky cliffs of the shrinking Lake Mead.
This may very well be part of natural climatic cycles, as had occurred in the decades, centuries and millennia before the compact was adopted. Now comes a warming climate that is constricting river flows. There’s a strong correlation with the accumulating greenhouse gases in the atmosphere. If this correlation is also causation, as many climate scientists contend, the river flows will decline even more in coming decades.
At Bishop’s Lodge, I asked the professional greeters about the location of the lodge in 1922. It’s still there, wooden rafters in a few interior rooms being the same as those under which the river delegates gathered nearly a century ago. The original lodge, though, now lies within a larger building, the restaurant for the resort. In front a rusted pickup tells of a time long gone, although nowhere in the building is a commemoration of the deliberations that in some way affect the water for 35 to 40 million people.
Like the original Bishop’s Lodge, the Colorado River Compact remains intact but is now surrounded by additional agreements. The most recent is the Drought Contingency Plan of 2019.That mini-compact, if you will, agreed to some temporary provisions to begin removing straws or at least the vigor of the sucking. Even then, two years ago, there was agreement that the real work would be necessary for another agreement due for adoption in 2026. A few individuals said they feared that the rapidly declining flows would not abide the can being kicked that far down the road or, I guess in this case, river.
But do the worsening conditions warrant razing this compact built 99 years ago on the false premise of water abundance?
I asked that question of Kuhn several years ago, and his answer made sense. There is too much risk in trying to start from scratch, he told me. The states would not do so.
After writing the first draft of this essay, I checked with Kuhn to see if my memory of his remarks were accurate. He confirmed their accuracy, but went on to share his growing worries about the implications of the aridification of the natural flow of the river if they continue at the same rate as has occurred in the last 20 years. “I am now concerned that the states and Interior will not have the will and creativity to bend the compact enough to avoid what Doug Kenny (formerly of the University of Colorado Law School) called a ‘Dumpster fire,'” he wrote in an e-mail.
Anne Castle, in remarks to a Congressional subcommittee during October, didn’t call for a remodeling of the Colorado River Compact. She did, however, suggest that the current response was laggard given the rapidly-declining reservoir levels.
In her testimony, Castle, the assistant secretary for water and science at the U.S. Department of the Interior from 2009 to 2014, said she doesn’t see a federal imposition of a “solution” being the answer, but she does believe the federal government needs to impose a stick—as was successfully used three times in the last 20 years to hasten the pace of negotiations among the states, tribes and other water users in the Colorado River Basin. “It is unclear,” said Castle, who is now a fellow at the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment at the University of Colorado Law School, whether the river will allow the current pace to continue without devastating consequences.”
Driving from New Mexico to Denver on the last Sunday in November, we saw almost no snow on the peaks of the Sangre de Cristo Range. That range does not contribute to flows in the Colorado River, of course, but it does indicate the general state of precipitation. That’s not terribly uncommon for late November. Not since these big dams of the Colorado River were built in the 1930s and 1960s have the reservoir levels been so low.
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