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Abstract

Twenty-plus years of drought and overuse in the Colorado River system have dramatically changed the outlook for water users in the system's Lower and Upper Basins. At the time of this Article's writing, the United States Bureau of Reclamation was simultaneously working on two related, but separate, environmental review processes related to the management of the Colorado River and its major storage reservoirs. The river system was granted a short reprieve in the form of a long overdue and aboveaverage snowpack in the winter of 2022-2023, but all signs point to continued risk presented by an imbalance in the system caused by climate change and overuse. This Article explores many (though not all) of the legal, political, and policy questions facing the system. Among the questions that bear on the risk of a potential Colorado River Compact ("1922 Compact" or "Compact") curtailment are: (1) whether the consumptive use of tributaries within the Lower Basin count toward that basin's Colorado River Compact Article III(a) and III(b) allocation; (2) whether the term "surplus" in the Compact's Article I1I(c) Mexican Treaty provisions applies to System water in excess of 16 million acre-feet ("MAF"), or to the volumes allocated to each basin on an individual basis; (3) whether the Upper Basin's Article III(d) non-depletion obligation is effectively excused if the flow at Lee Ferry falls below the ten-year running average requirement due to the impacts of climate change (instead of increased Upper Basin consumptive uses); and (4) whether the State of Colorado should pursue parallel strategies to prepare for an uncertain future or focus on addressing the current system inequities through litigation. Without assuming a definitive answer to these hotly contested issues, the Article explores the potential impacts in the event that curtailment of water users within Colorado became necessary to ensure continued compliance with the Colorado River Compact. The views expressed are the author's alone and do not represent the position of the State of Colorado or any other entity.

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