Editor’s note: This post is part of a two-part series that looks at the potential effects of removing or decommissioning Glen Canyon Dam.  Part II, which focuses on the environment considerations, will be published in the fall.

Over the past few years, voices calling for the removal of one of the West’s biggest reservoirs have gotten louder. And while proponents—including scientists, activists, journalists, and government officials—have cited everything from ecology to economics in their quest to decommission Glen Canyon Dam in northern Arizona and restore that part of the Colorado River, very little has been said about the impacts such an action would have on the house-of-cards-like network of compacts, agreements, and obligations comprising the “The Law of the River.

While many of the arguments made by proponents are worth discussion in this era of changing climates and changing values, if they want to make any progress turning this dream into a reality, they will first have to solve the Gordian knot of legal issues revolving around the Colorado Compact.

Dam commissioning has been a hot topic around the West for decades, and as larger dams like the Glines Canyon Dam in Washington start come down, the restoration of rivers is happening at an increasingly rapid pace. Where reservoirs once stood, river life has been restored as native species repopulate and vegetation sprouts on old lake beds. Since then, both Utah and Oregon made plans to remove dams in their states: Mill Creek Dam and Cline Falls Dam, respectively. States and environmentalists are assessing more dams to be dismantled or decommissioned, including one of two larger dams along the Colorado River.

 

“An American Nile”

The Colorado River runs 1450 miles from its headwaters in Colorado’s Rocky Mountains to the Sea of Cortez in Mexico and drains an area of nearly 250,000 square miles. Seven states and Mexico rely on this water and over the years have developed a complex array of agreements dividing it up.

There are fifteen dams on the main stem of the Colorado River, with hundreds more on its many tributaries. Two of these dams, the Hoover Dam and the Glen Canyon Dam, hold back the nation’s two largest two reservoirs. The Glen Canyon Dam (the “Dam”) was authorized in 1956 under the Colorado Storage Act for storage and hydroelectric power, turning the once wild and flowing Colorado River into the placid Lake Powell. As part of the aforementioned agreements, the Upper Basin has an obligation to deliver a certain amount of water from its basin to the Lower Basin. Instead of relying on the natural flow of the river, this reservoir serves as a water savings account for the Upper Basin so they can store up water in wet years to make sure they meet their delivery obligations to the Lower Basin.

However, over the years many things have changed for the reservoir. Support for keeping Lake Powell is beginning to sway, and critics are increasingly arguing that it inefficiently stores water, causes ecological damage to one of the West’s most beautiful natural wonders, and does not generate the economic value through hydropower it once did. With Lake Mead and Lake Powell below half their capacity—their “bathtub” rings serving as a constant reminder of how full they each once were—and drought conditions happening in the West, many are saying it’s time to let go of the Glen Canyon Dam for good. Scientists, ecologists, state politicians, and more are calling for the Dam to be deconstructed before it’s too late.

Articles upon articles illustrate the environmental need for letting go of the Dam, lamenting at the natural wonders lost by the plugging up of the Colorado River. One of the biggest voices calling for the dismantling of the Dam is the former Bureau of Reclamation head Daniel Beard. Beard calls the dam a “deadbeat dam,” the title of his book calling for the dismantling of dams across America. Beard writes that instead of viewing the current drought conditions and the decreased levels of both Lake Mead and Lake Powell as a doom-and-gloom situation, that the Bureau of Reclamation and the politicians for each state should look at the situation as a chance for innovative thinking. As part of this strategy, Beard calls for the removal of Glen Canyon Dam and the draining of Lake Powell: let the Colorado River fill up Lake Mead instead bypassing the no longer useful Lake Powell.

While all of these issues are worth discussing in regard to the Glen Canyon Dam coming down or being decommissioned, one thing all of these articles and books seem to overlook is the very real legal obstacles to such a major action. This includes the effect the lack of a reservoir would have on the 1922 Colorado River Compact. Additionally, removing or decommissioning the dam would likely require an impossible amount of political will in Congress. Currently the Glen Canyon Dam produces 4.5 billion kilowatt-hours annually, supplying electricity to nearly six million customers throughout the West, and brings millions of tourists who pump nearly four hundred million dollars into the region each year. But if Congress did decide to one day decommission or tear down the Glen Canyon Dam, the legal ramifications of such a decision would need to be discussed before action could be taken. This article will discuss these ramifications through the perspective of amending the Colorado River Compact of 1922.

 

The Law of the River

In the early 1900s, as the West developed, upstream states like Colorado watched in fear as the populations of downstream states like California began to boom. After years of legal disputes and blocking congressional funding to California projects, Delph Carpenter, who represented Colorado’s interests in the landmark Wyoming v. Colorado interstate water dispute before the U.S. Supreme Court, recommended using the Compact Clause of the U.S. Constitution to create a treaty between the Western states to divide up the Colorado River. In 1922 seven Western states came together to negotiate, and ultimately sign, the Colorado River Compact (“Compact”).

The Compact created two basins: the Upper Basin (Wyoming, Colorado, New Mexico and Utah) and the Lower Basin (Arizona, California and Nevada). The Compact apportions 7.5 million acre-feet per year to each Basin and created a delivery point between the two basins at Lees Ferry in Arizona (sixteen miles below Lake Powell). Under the terms of the Compact, the Upper Basin must “not cause the flow of the river at Lees Ferry to be depleted” below seventy-five million acre-feet over any period of ten consecutive years. If for any reason the flow at Lees Ferry is ever less than this, the Upper Basin states must curtail their use of their post-1922 compact water rights until the flow returns to Lees Ferry.

In the years following its signing, the Compact has given rise to a large number of additional compacts, agreements, contracts, court decisions, decrees, legislation, and regulations, collectively known as “The Law of the River.” This complex network of obligations has helped further allocate water to states within each individual basin as well as to non-state stakeholders including Native American tribes and Mexico.

If decommissioning or dismantling the Glen Canyon Dam occurs and the waters of the Colorado River are allowed to flow freely downstream, questions about the use and ownership of the water will surface. For example, questions may arise regarding how much water is being allowed to freely flow from one basin to the next and if that amount constitutes an over delivery by the Upper Basin to the Lower Basin based on the Compact numbers. Without a barrier or a way to pump water upstream if too much is delivered downstream, the Upper Basin, without Glen Canyon Dam, opens itself up to many legal risks. Both basins would then need to work out an agreement or a system to replenish the Upper Basin with water. Potential solutions could include a pumping system to deliver water back upstream, a series of new dams, the sharing of the Lake Mead reservoir, and/or a new distribution point between the two basins. Since creating a pumping system could become troublesome and cost millions of dollars, coupled with the call to remove dams from streams and rivers, one likely solution is to share the lower reservoir, which would then change the distribution point as listed in the Compact. In order to accomplish this, stakeholders using the Colorado River would need to amend The Law of the River in some manner. This could include amending the Colorado River Compact of 1922, which has not been amended in nearly one hundred years.

In order to amend or terminate the Compact, the signatory governors of each state and the President of the United States must appoint representatives to renegotiate the terms of the Compact. These new terms must be ratified by the states and by Congress. The question is: (1) what amendments would the states need to make to the Compact and further, (2) what adverse legal issues could arise after these amendments are made? The next two sections will explore these topics.

 

The Potential Amendments of the Compact

As of right now, the Upper Basin uses Lake Powell as their surplus reservoir, a protection mechanism for dry years. The Upper Basin stores all the incoming flow of the Colorado River and then releases the perfect amount to meet their obligations under the Compact. In wet years, the Upper Basin states can store more water or reallocate the water back up for use. In dry years—when the natural flow is not enough to meet the obligation—the Upper Basin can tap into that water storage to give the amount owed to the Lower Basin.

Without the protection Lake Powell offers, Upper Basin states run the risk of not being able to maintain the proper flow of water at the distribution point, subjecting them to possible lawsuits—or worse, curtailments of water their cities and residents have grown to rely on. The risk of curtailment is not an option for these states.

Furthermore, the Upper Basin also runs the risk of letting too much water pass downriver in times of plenty. With no way to capture it before it passes Lees Ferry, Upper Basins states have no way to reallocate that water back up to its users, and, maybe worst of all, risk giving the Lower Basin more than its agreed share of the Colorado River one year, while still risking curtailment the next. Therefore, any proposal to decommission Glen Canyon Dam would need to include a solution for how the Upper Basin can manage its rolling delivery obligations to the Lower Basin in the face of climate variability and increased demand throughout the West.

 

Consolidating storage

One idea that has generated a lot of buzz in the last few years is the consolidation of the two reservoirs into one, allowing the other reservoir to return to its natural state. Perhaps the most famous variation of this proposal is the Fill Mead First campaign. First put forth by the Glen Canyon Institute a few years ago, the idea has recently resurfaced into the national dialog about Lake Powell’s future. Under this plan, Glen Canyon Institute proposes moving water from Lake Powell down into Lake Mead in stages, culminating at a point where all the water is stored in Lake Mead and the natural flow is allowed to bypass Glean Canyon Dam unimpeded.

Proponents argue that combining storage would save water lost to evaporation or to seepage through Glen Canyon’s porous sandstone walls. Supporters of removing the Glen Canyon Dam argue that Lake Mead would be the better choice for both basins to use for storage because Lake Mead’s walls are made of volcanic rock thus preventing seepage.

Supporters of using Lake Mead also argue that the Colorado River would be permitted to flow more naturally, allowing for the nature of Glen Canyon and the Grand Canyon to regenerate. Many native species that relocated to the river’s tributaries could return to Glen Canyon and, with the flow of sediment through the Grand Canyon, many natural beaches would reappear along the banks of the Colorado. Furthermore, Glen Canyon Dam was also not necessary or vital to the 1922 Colorado River Compact since the Dam came into existence with the Colorado River Storage Project. Therefore, the removal of the Dam would not necessarily affect the fulfillment of any compact obligations by either basin, but would simply restore a status quo that existed for decades after the ratification of the Compact.

Some experts, however, have since pushed back on the argument that merging reservoirs would not result in any substantial water savings. Environmental groups also disagree as to whether Fill Mead First is ready for prime time given the questionable science, not to mention the political and legal realities of the Southwest and the economic dependencies on the power and tourism money Lake Powell and the Dam bring to the area.

The biggest problem, of course, is the fact that the Upper Basin’s storage would no longer be above the delivery point to the Lower Basin. Keeping the delivery point below the Upper Basin’s storage makes a certain kind of intuitive sense. By saving water in the reservoir, the Upper Basin states ensure they never give too much water to the Lower Basin states in wet years and do not run the risk of falling below their 10-year commitment of water to the Lower Basin states.

To resolve this, the basins could try a number of things. First, there could be some new agreement that the Upper Basin could “bank” its water in Lake Mead below the delivery point—an issue that raises its own legal questions within the Compact. Second, the Upper Basin could be forced to build a series of smaller dams further up on the Colorado’s many tributaries to compensate for the loss of Powell. Third, the Basins could renegotiate a new delivery point.

While this plan to reduce evaporation and seepage may seem like a no-brainer, some experts say the science behind Fill Mead First’s agenda is not actually as simple as proponents might wish. First, there are arguments that both the effect of moving the water downstream to Lake Mead will not change the amounts of water lost to evaporation because water will still be present where Lake Powell currently sits and will still be subject to the effects of evaporation. Second, in recent years certain studies found that the amount of water lost to seepage is on the decline, suggesting that the sandstone walls are so saturated with water that the Lake is practically “armored” from losing any more water to the canyon walls. Another argument against Filling Mead First is that while it may seem like a good idea to combine the reservoirs, the reality is that other Upper Basin Rivers will be dammed to create reservoirs acting as a savings account for the Upper Basin in times of drought and water shortages. The likelihood that the Upper Basin would allow for their safety net to be completely removed is low and a new series of dams would pop up changing the environments around other rivers that feed into the Colorado River. However, if the Upper Basin were to allow a one-reservoir scenario to occur, other negotiations with the Lower Basin would need to take place including negotiations on designating a new distribution point.

 

New Distribution Point

In moving from a two-reservoir to a one-reservoir scenario, one option the Basins might try is to renegotiate the location of the distribution point between the Upper and Lower Basins. The Compact currently mandates the current distribution point between the Upper and Lower Basin states is at Lee’s Ferry, Arizona. Lee’s Ferry sits between Lake Powell and Lake Mead as a half way marker of the River’s beginning and end. This halfway point allows both Basins the opportunity to store water and generate power. If the Upper Basin loses their key reservoir and has to share storage space in Lake Mead, one potential delivery point might be the Hoover Dam.

However, since Lees Ferry is written into the Compact, all seven states would need to renegotiate a new distribution point. This renegotiation would involve not only a renegotiation of the Compact, but would need to tackle some other thorny questions as well. For example, because Arizona is technically located in both basins given the placement of the Glen Canyon Dam, it also has a right to water in both basins. By erasing the Dam and moving this distribution point to the Hoover Dam, Arizona’s placement in the Lower Basin may need to change. But given Arizona’s contentious role in the original Compact, any attempt to remove Arizona from the Lower Basin, renegotiate their water rights in either basin, and take away the Glen Canyon Dam may become a protracted—and maybe impossible—legal battle. Specifically, by changing the distribution point to the Nevada/Arizona border a decision would need to be made as to which basin Arizona belongs in. Either Arizona becomes part of the Upper Basin, or Arizona stays part of the Lower Basin.

If Arizona were to become part of the Upper Basin, the Upper Colorado River Basin Compact of 1948, the Boulder Canyon Project Act of 1928 (which allocates the Lower Basin’s water to the three lower basin states), and the 1922 Compact would all need to be amended to reflect this reassignment. For example, under the Boulder Canyon Project Act of 1928, Arizona’s gets 2.8 million acre-feet per year, and if Arizona were to be included in the Upper Basin, that water would have to be reallocated under the various compact. That would leave the Upper Basin with 10.3 million acre-feet of water per year and a delivery obligation to the Lower Basin of 4.7 million acre-feet—assuming, that is, that everything else about the various compacts remain the same.

If Arizona were to stay part of the Lower Basin, new regulations would be necessary to prevent Arizona from unfairly using Upper Basin water as it flows through its state and the Upper Basin may seek the 50,000 acre-feet of water Arizona gets from the Upper Basin.

No matter which scenario is chosen, if the Glen Canyon Dam is removed, resulting in the change of the 1922 Compact and The Law of the River to create a one reservoir scenario with a new distribution point at the Hoover Dam, there are many more obstacles that could stand in the way. These issues include the water rights of tribal and international entities and more conflicts between the seven states. The following section explores these issues as they may arise.

 

The Potential Effects of Amending the Compact

It took twenty-two years to get all seven states to sign the original 1922 Compact—Arizona being the final holdout. Since then, there have been a plethora of Compact-related cases to reach the U.S. Supreme Court. While the current state of affairs on the River represents a fragile—but collaborative—truce, reopening the Compact (or any of its related foundational agreements) now could risk causing the whole house of cards to come tumbling down.

Reopening the Compact could present states an opportunity to push for a larger slice of the pie or even just air long-simmering grievances about neighboring states. Additionally, tribal agreements and international treaties may also be affected if water allocations and storage areas change.

This section discusses the potential legal issues that could arise by removing the dam and bringing voices to the table who were not heard under the negotiations of the 1922 Compact. It will comprise of three sections: (1) state issues; (2) international commitments; and (3) tribal commitments.

 

State Issues

The biggest hesitancy to adding amendments or renegotiating the Compact—even just a small detail—is that it opens the entire system to horse-trading. Any issue would become fair game. First, any renegotiation risks pitting states against each other at a time when collaboration on the River seems to be in a golden age. Reopening these foundational agreements now would provide states with an opportunity to scramble for more water for their own growth plans—perhaps at the expense of their less populous or politically connected neighbors. Second, any renegotiation could very quickly turn good-faith problem solving into a public airing of interstate grievances and grandstanding, with states flinging mud at each other for everyone else’s wasteful practices and their broken water governance regimes. But most importantly, states would have to wrestle with the elephant in the room: the fact that the Compact itself is premised on a mistake and that there is actually less water available than has been allocated to the seven states and Mexico.

The Compact depends on 16.5 million acre-feet of water flowing through the Colorado River every year. The problem with that number is that this measurement was based on how much water flows downstream during a wet year—not a normal or dry year. Studies show that during a normal year, 14 million acre-feet flow through Lees Ferry. Furthermore, since both Lake Mead and Lake Powell lose around 1.6 million acre-feet of water a year to evaporation, the amount of water being stored and then later used is even lower than the 16.5 million acre-feet allotted for by the Compact. Thus, the odds that the Upper Basin consistently distributes the correct amount of water to the Lower Basin and Mexico varies year to year. During dry years, the Upper Basin could find itself running low on water supplies, and in wet years have an abundance that could result in a surplus amount of water being sent downstream.

All seven states would probably be on the lookout to get more water for themselves, but none more so than Nevada and Arizona. The 1928 Boulder Canyon Project Act allocated 300,000 acre-feet to Nevada, as compared to the 2.8 million acre-feet allocated to Arizona and the 4.4 million acre-feet to California. Now, with a population of 2.1 million people in Clark County (the southern-most county of Nevada, including the Las Vegas Valley), Nevada may ask for more water if any part of the Colorado River Compact is renegotiated. This could lead to long and arduous negotiations, especially with states like Arizona. As discussed above, it took twenty-two years to get Arizona to sign the 1922 Compact. Having nearly no other water sources available to them, Arizona fought tooth and nail to be able to use its full water rights. In the 1964 decision Arizona v. California, the U.S. Supreme Court allowed Arizona to move forward with the Central Arizona Project, and use water from the Gila River, a Colorado River tributary. By tearing down the Glen Canyon Dam, Arizona’s water rights would become the center of attention. If the Upper Basin reallocates the current water rights it gives to Arizona, and Nevada asks for more water to be allocated to it through the renegotiation process, Arizona could end up losing part of its water rights. This will surely be met with a long series of lawsuits, much like the one the U.S. Supreme Court heard in regards to the original 1922 Compact negotiations and issues.

 

International Commitments

The United States currently has a treaty with Mexico regarding the Colorado River: the Mexico Water Treaty of 1944. Under this treaty the United States is to deliver to Mexico 1.5 million acre-feet each year. In 2007, Minute 319 was negotiated between the two countries creating management provisions and determined how much water Mexico would take from the Colorado during shortage conditions. In August of 2017, both countries extended the Minute 319 Agreement which was set to expire in November 2017. Minute 323, signed in late September extending this Minute into 2026, includes an opportunity for Mexico to continue storing water in Lake Mead. Minute 323 also created a “Binational Water Scarcity Contingency Plan” in which Mexico and the United States temporarily take less water out of Lake Mead. This plan would only be triggered if a Lower Basin Drought Contingency Plan came into effect, which would permanently assure that no more water is allocated from Lake Mead than flows into it. Under the Binational Plan, Mexico would defer its water allotment for a time and could recover its water savings when Lake Mead’s conditions recover.

Under Minute 323, as agreed upon in 2017, Mexico may also defer its water allotment from the Colorado River in the event of an emergency (i.e., an earthquake) or as a result of water conservation projects in Mexico. This allows Mexico greater flexibility in how it uses its water from the River as well as helping to boost the levels of Lake Mead. Mexico would also be allowed additional quantities of water during high elevation conditions at Lake Mead when additional water became available to U.S. users.

If the Compact is renegotiated and the Glen Canyon Dam becomes the reservoir for both the Upper and Lower Basin States, as well as Mexico, legal issues over whose water is whose could escalate, especially during long droughts or periods of shortage. Also, the new terms of the Minute would need to be renegotiated to determine how, as Lake Mead is filled, drought contingency plans— namely, the Lower Basin Contingency plan—would then affect the Binational Plan. If Lake Mead is filled with water belonging to all basin states and Mexico, what new metrics would need to be implemented to decide whether or not Mexico could take more water, or should take less? Renegotiations of Minute 323 would need to reoccur if the Lake Powell were to be decommissioned and Lake Mead filled first.

 

Tribal Commitments

From the very beginning until only recently, tribes have been left out of the major decisions affecting basin allocations. The 1922 Compact, for example, expressly states that the Compact does not affect the obligations of the United States to Indian tribes. Indian Reservations maintain Winters rights, which are adjudicated and, although federal in nature, may be enforced by the states. The Navajo Nation currently sits in three of the Compact states: New Mexico, Arizona, and Utah, thus straddling land in both the Upper and Lower Basins. The Navajo Nation diverts water from Lake Powell, quantifying their rights under the Winters Doctrine. The Bureau of Indian Affairs opposes the removal of Lake Powell. 38,000 Native Americans in the Upper Basin currently depend on Lake Powell for water storage and the power coming out of the Glen Canyon Dam. Removing the Dam will take away storage and power, which could have adverse effects on the tribes depending on it.

As discussed before, a renegotiation of the Compact based on the removal of Glen Canyon Dam could open the debate on the amount of water each state gets. In such a situation, not only would it be imperative to ensure that tribes like the Navajo Nation maintain their full Winters or settlement rights, but it would also be important—or even imperative—to bring them to the table for any decision, further complicating the dynamics.

 

Conclusion

The Bureau of Reclamation recently recommissioned the Dam for another 20 years, signaling the Dam is here to stay, but the calls for its deconstruction are still alive and growing. While there are countless other legal issues that would make draining Lake Powell a legal headache, there is no doubt that untangling the ramifications of the Colorado Compact is by far the biggest. As voices grow louder to tear down the dam, it will be important to not just convince the West of the environmental and water saving benefits, but to genuinely reckon with some of these thornier issues before those calling the shots will take these calls seriously.

Kristina Ellis

Image: Glen Canyon Dam and Lake Powell near Page, Arizona. Wikimedia Commons user Tuxyso, Creative Commons.

 

 

Sources

Press Release, Bureau of Reclamation, Interior Secretary Salazar and Reclamation Commissioner Connor Join U.S. and Mexico Delegations for Historic Colorado River Water Agreement Ceremony (Nov. 20, 2012), https://www.usbr.gov/lc/region/feature/minute319.html.

Law of the River, Reclamation (June 30, 2015), https://www.usbr.gov/lc/region/pao/lawofrvr.html.

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River Law, S. Nev. Water Auth., https://www.snwa.com/ws/river_law.html (last visited Nov. 21, 2017).

United States and Mexico Conclude Colorado River Agreement, Int’l Boundary and Water Comm’n (Sept. 27, 2017), https://www.ibwc.gov/Files/Press_Release_092717.pdf.

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Ken Ritter, Feds Give 20 More Years to Glen Canyon Dam on Colorado River, Denver Post (Dec. 16, 2016, 5:32 PM), http://www.denverpost.com/2016/12/16/feds-20-years-glen-canyon-dam-colorado-river/.

Kate Schimel, After its Dams Came Down, River is Reborn, High Country News (Sept. 4, 2017), http://www.hcn.org/issues/49.15/rivers-six-years-after-its-dams-came-down-a-river-is-reborn.

Matt Weiser, Study: Rivers Recover Faster Than Expected After Dam Removal, News Deeply (Sept. 11, 2017), https://www.newsdeeply.com/water/community/2017/09/11/study-rivers-recover-faster-than-expected-after-dam-removal.

Cynthia Brougher, Indian Reserved Water Rights Under Winters Doctrine: An Overview, Nat. Agric. L. Cen. (June 08, 2011), http://nationalaglawcenter.org/wp-content/uploads/assets/crs/RL32198.pdf.

Charles Cohn, Should Glen Canyon Dam be Removed? (Univ. of Colo. Boulder 2011), https://scholar.colorado.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1808&context=honr_theses.

Krista Langlois, Down with the Glen Canyon Dam?, High Country News (Sept. 4, 2017), http://www.hcn.org/issues/49.15/rivers-down-with-the-glen-canyon-dam.

Abram Lustgarten, Unplugging the Colorado River, N.Y. Times (May 20, 2016), https://www.nytimes.com/2016/05/22/opinion/unplugging-the-colorado-river.html.

Eric Trenbatch, Former Reclamation Boss Says: Tear Down Glen Canyon Dam, Moab Sun (Apr. 9, 2015, 8:40 AM), http://www.moabsunnews.com/news/article_5b24b85a-dec6-11e4-beea-534e63f70964.html.

Brain Maffly, Wildlife Authorities are Removing Dam in Mill Creek Makeover, Salt Lake Tribune (Sept. 15, 2016, 9:53 PM), http://archive.sltrib.com/article.php?id=4356926&itype=CMSID.

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Public Interest Environmental Law Conference 2017: One Cause, One Voice

Eugene, Oregon        March 2–5, 2017

Transboundary Water Issues: Challenges and Opportunities

Presented by: Eric Benjaminson, former United States Ambassador; Todd Jarvis, Oregon State University; Austen Parrish, Indiana University School of Law; Fatima Taha, Oregon State University.

This panel consisted of four panelists who discussed separate challenges that attorneys and other professionals face when solving transboundary water issues.

Todd Jarvis, a hydrologist and professor at Oregon State University, began the discussion by outlining six issues anyone working in transboundary water agreements should be ready to face. Jarvis began by explaining the issue of conceptual models, which can be important—especially for groundwater—as they help fill in the gaps for our imperfect knowledge of groundwater formations. The problem, he noted, is that professionals working in different countries often use incompatible conceptual models and thus cannot even come to a basic mutual understanding. Second, Jarvis addressed the scope of regional authority. Some countries allow local management, whereas others use national legal frameworks, and while transboundary issues suffer from political tensions, local management can be particularly political. Third, a lack of data can prevent countries from wanting to agree to solutions. Fourth, boundaries can change, which can compound other issues associated with transboundary water agreements. Fifth, Jarvis discussed how “dueling experts” can hold back transboundary water agreements. He noted that hydrologists in particular can often come to different results depending on who is asking them to make a specific finding. When experts fail to come to a consensus, politicians and other stakeholders can cherry pick data and use it to their advantage indefinitely. Sixth, Jarvis stated that transboundary water agreements are expensive to reach. Small issues can delay agreements by decades and cost millions of dollars.

Next, Eric Benjaminson, a former United States Ambassador to Gabon and to São Tomé and Príncipe and former United States Economic Minister Counselor in Canada, discussed how international disputes over Devils Lake in North Dakota reflect the challenges that professionals working in transboundary water disputes must face. Following a local plan to allow a spillway to help drain the lake during times of high water, an international fight began. The plan for Devils Lake would have had a negative impact in Canada, notably on Lake Winnipeg, the eleventh largest freshwater lake on Earth. The Canadian government opposed the plan for decades and believed that it violated the international Boundary Waters Treaty. In 2005, North Dakota constructed the spillway. To protect their interests, Canadian diplomats requested, among other things, that the United States submit the case to the International Joint Commission. The United States refused to do so, but it agreed to conduct some studies on invasive species that could spread as a result of the spillway. But for the United States, the fact that the federal government largely lacks jurisdiction over the lake making it more difficult fto intervene than would be the case with other lakes. Despite Devils Lake being relatively small, it has exhausted a massive amount of diplomatic energy between the United States and Canada.

Austen Parrish, dean of Indiana University’s Maurer School of Law, presented next, arguing that one way to solve transboundary water issues is to shy away from a model that encourages local authorities. He stated that small scale attempts to fix transboundary water issues invariably fail, and such challenges require large-scale and complex solutions. Local authorities can be hyper-political, and lose perspective of the end goal. To show how localized solutions are ineffective, Parrish discussed difficulties that the Confederated Tribes of the Colville Reservation faced when a Canadian mining company, Teck, polluted the tribe’s water supply. Teck intentionally discharged more than ten million gallons of slag and effluent into the Columbia River.

The tribe sued Teck under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) more than ten years ago. It is uncertain how CERCLA will apply across an international border. Despite Teck’s admission that it intentionally dumped slag and effluent, the tribe has yet to receive any payments or other remedy. The Confederated Tribes of the Colville Reservation won an award in federal district court last year, but the case is currently under appeal. The appeal will further delay any chance the tribe has at remedy. There are likely two ways that this litigation could conclude: the court could find Teck liable and impose massive fines under American domestic law, or there may be a diplomatic resolution between the two countries before the court reaches a decision. Regardless, what is evident is that old treaties and strategies to solve transboundary issues may no longer work. Without a transboundary agreement over actions such as Teck’s, it is much harder for United States citizens to seek justice. Parrish used this example to show how vital it is to have transboundary agreements that are respected at a high level of international policy. Without such an agreement, citizens are left to fight under domestic laws and uncertain precedents.

Fatima Taha, a graduate student at Oregon State University, concluded the presentation by discussing her research into resolving transboundary water issues. Taha has developed a live-action “serious game,” designed to encourage effective transboundary negotiations. In this game, players participate on teams of three. Each team represents a country and its three players participate as a head of state, an agriculturalist, and an environmentalist. Each country must work with other countries to coordinate the development of food grains, meat, dairy, and a healthy environment. This development is symbolized by each team’s accumulation of “notes,” which can represent water and commodities. Negotiations between teams can quickly fall apart through news of extreme drought or war. Overall, Taha’s game helps participants de-politicize issues and seek an equitable solution that makes sense for all parties involved. Taha believes the game’s simplicity and practical use—as well as the enjoyment its players report—add to the growing understanding that “serious games” can develop critical thinking among participants in ways that other experiences cannot.

Matthew Kilby

 

Image: Sunset at Devil’s Lake in North Dakota. Flickr user Jimmy Emerson, DVM, Creative Commons.