Environmental, Natural Resources, & Energy Law Blog
The River Runs Out: The Upcoming Southwest Water War(s) - Brian Brazier
The River Runs Out
The Upcoming Southwest Water War(s)
Brian Brazier LLM
Imagine turning on the shower in the morning and no water comes out. You turn on the bathroom sink. No water comes out. You move to the kitchen and turn on the sink. No water. You call your neighbor, and they have no water. You call your friend across town; no water. This seems unthinkable, but in the American Southwest, this is closer to reality than anyone wants to believe. What has forsaken us? Why is the water gone? “It must be the Colorado River!” is the thought of no one.
There is no doubt about it. The American Southwest as we know it exists because of the Colorado River, and the Colorado River is in desperate shape. The American dreamscapes of Hollywood and Las Vegas only exist because of the Colorado River. For the last fifty years, the US has had winter lettuce, and figs and dates, and citrus because of the Colorado River. Now, the Colorado River is in trouble, and there are many reasons for this.
Near the top of the list of problems are warming global temperatures and prolonged drought in the American Southwest. These are direct and valid explanations; they are also mostly ignorable existential problems, precisely because they are a global dilemma and not local or regional. Focusing on these as the core of the problem allows those closest to the problem to discount the increasing demands that humans put on the river from a variety of human water uses: domestic, industrial, and agricultural. These more local water users come in many forms in many competing jurisdictions. No fewer than thirty-five million people in the United States (perhaps as many as forty-five) - roughly constituting one in eight U.S. residents and much of the population of Arizona, Nevada, and Utah, and significant populations in California, Colorado, New Mexico, and Wyoming - currently rely on water from the Colorado River watershed for basic survival. In addition to the American residential population in these seven states, this water is supposed to serve 29 federally recognized Indian tribes, 5.5 million acres of farmland, and Mexican interests in the states of Baja California and Sonora. Los Angeles, Riverside, San Diego, Tijuana, Phoenix, and Las Vegas could not continue to exist without the water of the Colorado Basin. This is not hyperbole.
The ability of the Colorado to meet the needs of so many people in one of the most arid, populated areas of the Western Hemisphere relies upon the damming of the river and the consequent water distribution among the many stakeholders. In particular, the major dams (Glen Canyon, Hoover, Davis and Parker) have created vast reservoirs/lakes for this purpose (Lake Powell, Lake Mead, Lake Mojave, Lake Havasu, etc.). Two of those, Lakes Mead and Powell, are the two largest reservoirs in the United States, measured by capacity. That statistic is true in theory, but both lakes have experienced an unprecedented and alarming drop in water levels in recent years, and during the last few years in particular. This is true so much so that the US federal government is weighing the possibility of intervening in the matter.
The right to water in the American West rests on a different foundation than in the Eastern states. This split exists because of the aridity of the West. A look at a precipitation map of the United States shows the dramatic divide that occurs at approximately the 100th degree west of longitude:
In the West, the law gives water rights to the one who first “productively” diverted and used that amount of water. Where water law in the East continually provides correlative rights to anyone with land adjoining the water source, water in the West belongs in perpetuity to the one who first used and continues to use it “beneficially.” This is true at every level, from person versus person, to city versus farm, and to state versus state versus tribe; this paradigm of water distribution that was developed more than a century ago persists to the present. Thus, cities and metropolitan populations that have grown exponentially in recent years occupy a subservient position with respect to water rights to the ranch or farm down the road, whether upstream or downstream, because the farm was there before the millions of people who came later. A dramatic question of priorities is on the horizon, but no one wishes to talk about it.
The original (and still the fundamental) guiding agreement to divide the water of the Colorado River is the Colorado River Compact of 1922 (“CRC”), which split the affected states into the Upper Basin (Colorado, New Mexico, Utah, and Wyoming) and the Lower Basin (Arizona, California, and Nevada). Each of the two basins were allocated 7.5 million acre-feet (“MAF”) of water per year (with Mexico later being allocated 1.5 MAF per year). These numbers were based inaccurately on the notion that 16.5 MAF annually was a dependable long-term projection of available water from the Colorado River. In reality, the natural flows in the Colorado River Basin in the 20th century averaged only about 14.8 MAF annually. When the numbers were established, neither the Upper or Lower basins were using their allocation, but today, the actual demand for water exceeds the allocated 1922 quantities and far outstrips the actual, available annual supply, leading to the river frequently failing to make it to the Gulf of California (aka Sea of Cortez) and causing a precipitous decline in the water of the river’s various reservoirs. The state of the water storage in the reservoirs is bleak. It does not take a NASA rocket scientist to look at astronautical pictures and see the problem, but NASA’s satellite pictures are instructive:
The increasingly problematic reality is fundamentally not in debate. No one disagrees that the water situation is bad at present, is only getting worse, and that a hard-nosed strategy to move forward is mostly non-existent. The various stakeholders make suggestions about what they can do immediately, what they are willing to do in the future, what they will consider as an option, and where they are intractable in their position. The problem is that the intractable position of some parties might be intractable in their mind but is completely untenable as a realistic option moving forward. The American ambition for growth and expansion and the finite amount of water are fundamentally at odds. Look at the scale of the problem in the abstract: if food is a problem, you can find different ways to produce food from different feasible sources that are doable. If energy is a problem, there are other ways to produce energy, even if it is more expensive and even prohibitively expensive at present. There is literally (and metaphorically) no way to produce water out of thin air. H2O is finite and unreplaceable.
The Phoenix-Mesa-Chandler metropolitan area has 4.9 million people and is the 11th metropolitan area in the country. Las Vegas-Henderson-Paradise has 2.3 million people. Tucson has 1 million people. Every drop of water consumed by these cities comes from the Colorado watershed. Los Angeles-Long Beach-Anaheim (13 mil.), Riverside-San Bernardino-Ontario (4.6 mil.), San Diego-Chula Vista-Carlsbad (3.3 mil.) and Denver-Aurora-Lakewood (3 mil.) also depend on the Colorado for a significant portion of their water use. These population numbers are based upon the US Census Bureau’s 2020 MSA (metropolitan statistical area) census numbers. These cities and the 40 million people dependent on the water of the Colorado could quite literally die without their allocations.
Management of the Colorado River: Water Allocations, Drought, and the Federal Role, Congressional Research Service, October 13, 2020, available at https://crsreports.congress.gov/product/pdf/R/R45546/13
Where the real conflict begins is when we put the reality of basic human survival against the imbedded interests of agricultural concerns. A majority (70%) of basin water supplies are used to irrigate 5.5 million acres of land across the West. The water used for agricultural concerns are largely predicated upon the vested water rights obtained under the system of first-in-time, first-in-right. These agricultural concerns assume that their ability to grow profitable but highly water-intensive crops will and should exist in perpetuity. Because the water rights were originally acquired through beneficial use, those rights continue to exist as long as they continue to be put to beneficial use. The definition of “beneficial use” has never been extensively debated; if you use the water to do something permitted under relevant statutes or similar to those permitted uses, as long as it does not go unused, it is a beneficial use.
Axiomatic in this paradigm is that those who have the water wish to keep the rights to that water, even (and perhaps especially) if it is currently put to monumentally inefficient use. A representative example to illustrate the larger problem is alfalfa. No one who does not depend on alfalfa thinks much about alfalfa. I imagine that someone reading this has never thought much about this little grass. Alfalfa being harvested in the desert, and ready for sale, looks like this:
Alfalfa is interesting because of a few important factors: it is cheap to plant, resistant to predation by insects and infection by diseases, quick-growing (particularly in a warm sunny environment), easy to harvest, and highly prized as nutritious feed for large herbivorous animals (cattle, horses, etc.). All these factors make it a simple and extremely profitable crop when almost unlimited cheap water is available to grow it.
In fact, it is such a good crop for these purposes that lands with significant vested water rights in Arizona and California are being purchased at a rapid pace by Middle Eastern interests to grow feed crops. This is worth thinking about. Saudi and Emirati interests, imbued with petroleum money, find it more cost effective to buy land with vested water rights in the American Southwest, grow alfalfa with their Colorado River water (and groundwater), harvest and bale their crop, put it on an airplane, and ship it back to Riyadh or Dubai by airplane to feed their horses, cows, or camels. The current system makes it easy and profitable to ship dried alfalfa half way around the world.
This is not to demonize distant, absentee landowners for their prolific use of a limited resource. The problem is bigger than Arab thoroughbred horses being fed by Colorado River alfalfa. The finger is just as easily pointed at golf courses, and grassy lawns, and swimming pools, and long showers. It could even be pointed at those who continue to move to an area with such limited water resources. The American population continues to flow from the water-rich East to the arid Southwest, and this migration does not seem to be easing. There is the bigger question, though. If there is not enough water to fulfill all of the current and future uses that are inevitable, how much do we as a society want Las Vegas and Phoenix to survive? Their very existence is on the chopping block.
With a shortage of energy, we can try to find it elsewhere or from a different mechanism. Water is finite and irreplicable, and using it more wisely is a lesson that is going to be learned the hard way. There is no conceivable reason wherein it makes sense to grow thirsty crops like alfalfa and cotton in California’s Imperial Valley or Arizona’s Gila and Salt River Valleys. If we wish to keep our desert cities, we need to massively rethink the approach to existing water rights. Priorities need to adjust to the times. Are entrenched rights to grow alfalfa more important than the basic survival needs of millions of people? We might need to start using strong-arm methods like eminent domain to ensure that people do not start dying because we cannot live without alfalfa profits or winter lettuce. There is a genuine water crisis looming in the Southwest and it should probably be addressed before it is genuinely a matter of life or death.
Additional Information and Resources
Norris Hundley, Jr., Water and the West: the Colorado River Compact and the politics of water in the American West (2d ed. 2009)
David Schorr, The Colorado Doctrine: Water Rights Corporations, and Distributive Justice on the American Frontier (2012)
Upper Basin of the Colorado River, American Rivers, https://www.americanrivers.org/river/upper-basin-colorado-river/
Colorado River, Meyers, Charles J., 19 Stan. L. Rev. 1 (1966-1967)
The Upper Basin, Lower Basin, and Mexico: Coexisting on the Post-2026 Colorado River,
Date Written: June 2, 2019, available at
Equity and the Colorado River Compact, 42 Envtl. L. 1157, Jason A. Robison and Douglas
S. Kenney, Fall, 2012
The Colorado River Revisited, Jason A. Robison University of Colorado Law Review Jul
The Colorado River and the Inevitability of Institutional Change, Douglas Kenney 32 Pub.
Land & Resources L. Rev. 103
New US plan could lead to federal action on Colorado River, The Associated Press, Octover 22, 2022, https://www.azfamily.com/2022/10/28/new-us-plan-could-lead-federal-action-colorado-river/
Law of the River, University of Arizona, Maureen Garmon
Colorado River: Frequently Asked Law & Policy Questions, University of Colorado,
 This post only discusses the water availability problems for end-use consumers, but problems of water in the Colorado River have broader implications than faucets running dry. Lake Powell and the Glen Canyon Dam, responsible for just the second largest reservoir on the Colorado, is responsible for “generat[ing] power for about 5.8 million households and businesses in Arizona, Colorado, Nebraska, Nevada, New Mexico, Utah and Wyoming.” Zack Burdyk, What happens if Lake Powell runs out of water? The Hill, 10/04/22, available at https://thehill.com/policy/energy-environment/3671785-what-happens-if-lake-powell-runs-out-of-water/
 Colorado River Basin Stakeholders Moving Forward to Address Challenges Identified in the Colorado River Basin Water Supply and Demand Study, Phase I Report 1, U.S. Bureau of Reclamation (2015), http://www.usbr.gov/lc/region/programs/crbstudy/MovingForward/Phase1Report/fullreport.pdf
 Wildfire and drought bills being readied for House amid growing crisis, Benjamin J. Hulac, 1065, CQ Roll Call,
2022 CQFENRPT 1065.
 Interior Department Announces Actions to Protect Colorado River System, Sets 2023 Operating Conditions for Lake Powell and Lake Mead, Department of the Interior Press Release, 8/16/2022, available at https://www.doi.gov/pressreleases/interior-department-announces-actions-protect-colorado-river-system-sets-2023
 Colorado River Compact of 1992, available at https://www.usbr.gov/lc/region/g1000/pdfiles/crcompct.pdf.
 Management of the Colorado River: Water Allocations, Drought, and the Federal Role, Congressional Research Service (2020), at 14, available at https://crsreports.congress.gov/product/pdf/R/R45546/13.
 2020 Population Data. United States Census Bureau, Population Division, available at https://www.census.gov/library/visualizations/interactive/2020-population-and-housing-state-data.html, retrieved January 7, 2021. See also, https://www.statista.com/statistics/183600/population-of-metropolitan-areas-in-the-us/
 Management of the Colorado River: Water Allocations, Drought, and the Federal Role, Congressional Research Service, October 13, 2020, at 1; available at https://crsreports.congress.gov/product/pdf/R/R45546/13
 Drought-stricken US southwest pays the price for Gulf-owned farms exporting ‘virtual water’, Umar A Farooq, Middle East Eye, 10 November 2022, available at https://www.middleeasteye.net/news/drought-stricken-us-southwest-pays-price-gulf-owned-farms-exporting-virtual-water-abroad
 Jeremy Miller, Inherit the Dust, Sierra, August 22, 2022.