The 1922 agreement that governs the Colorado River is flawed. Why not fix it?

The Colorado River flows near Kremmling, Colorado. The 1,450-mile river supplies water to roughly 40 million people in seven U.S. states and Mexico. (Nick Cote/KUNC/LightHawk)

GREELEY, Colo. – Colorado River water managers have plenty to argue about, including how they should deal with lower water levels caused in part by higher temperatures, long-term drought and increasing population.

But there’s one thing on which nearly everyone who relies on the river can agree. The foundational document that divvies up the water – the Colorado River Compact, first signed nearly 100 years ago – is not easily altered. And the word renegotiation is bound to cause political ripples.

The late Sen. John McCain, R-Ariz., learned that lesson the hard way.

In summer 2008, McCain was the Republican nominee facing President Barack Obama. Colorado was considered a swing state.

Water scarcity issues are always top of mind for Western politicians. That’s why when reporter Charles Ashby, then with the Pueblo Chieftain, now with the Grand Junction Sentinel, got McCain on the phone and asked him why Colorado voters should trust an Arizonan when it comes to water.

“I thought that was relevant because he’s downstream on the Colorado River,” Ashby said, “and Arizona and Nevada and California are big water users.”

Because of population growth and dwindling water supplies, McCain said he’d be in favor of renegotiating the document that divvies up the river among the seven U.S. states that rely on it. Ashby was floored.

“I knew immediately that was a no-no, at least for politics here in the state of Colorado,” Ashby recalled. “And so I said to him, ‘Are you sure you want to say that? Because that won’t go over well up here.’”

Their phone connection kept cutting out, but McCain called back twice to double down on his idea. Sensing a big scoop, Ashby called a few other Colorado politicians to get their reactions. Prominent Democrats and Republicans agreed that McCain was out of line. Colorado’s sitting Democratic senator at the time, Ken Salazar, went so far as to say the Colorado River Compact would be renegotiated over his dead body.

“Then-Governor Bill Ritter said to me after that story ran, he said, ‘Charles, that story may have delivered the state to Obama,’” Ashby said.

McCain eventually walked his comments back after a thorough lashing in the press.

But with one sentence, he had touched a nerve in Western water politics.

“A lot of it is just the word choice: renegotiation,” said Doug Kenney, a water policy expert at the University of Colorado-Boulder. Some of Kenney’s work is funded by the Walton Family Foundation, which also funds KUNC’s Colorado River coverage.

Renogotiation is a word that inflames decades-old tensions in the vast watershed, Kenney said – Colorado, Wyoming, New Mexico and Utah in the Upper Basin, and Arizona, California and Nevada in the Lower Basin.

“I think a lot of the parties think it’s scary simply because it’s a little scary to negotiate when not all the parties have the same political power,” Kenney said.

That power imbalance is what brought regional political leaders to the table in 1922, when the Colorado River Compact was signed. The desert Southwest was beginning to grow rapidly, and rather than acquiesce all of the river’s flow to the sprawling cities and cropland of Southern California, water managers felt it was in their best interest to come to an agreement to divvy up the river among themselves. The alternative was conflict and litigation.

Each basin was to receive 7.5 million acre-feet of water per year, which the basins allocated among themselves. The Upper Basin opted for percentages, with Colorado receiving the largest share. The Lower Basin chose to parse it into discrete, fixed portions, with California and Arizona receiving the largest amounts.

Conventional wisdom about the math underlying the compact goes something like this:

Water managers used the available data to figure out how much water they had to work with; however, the time period they examined had been uncharacteristically wet. Soon after the compact’s signing, the river returned to its more normal flows, and right from the start, the compact didn’t mesh with reality. More water existed on paper than in the river, creating a gap between supplies and demands that continues to today. So the story goes: It was no one’s fault, just a historical fluke.

John Fleck, director of the University of New Mexico’s water resources program, says that conventional wisdom is wrong. Allocating more water than was available was the politically expedient thing to do. He’s finishing a book with Colorado River expert Eric Kuhn on what water managers of the 1920s knew about the river’s flow and when they knew it. They found that scientists with the highly respected U.S. Geological Survey were complaining about the inflated numbers even before the compact was signed.

“They all concluded the same thing, ‘You’re basing this on an unusually wet period. You need to take into account dry periods. There is really less water than you think,’” Fleck said. “And all those scientific experts were ignored.”

Today, there’s broad consensus about the compact’s math problems. Although it was scoffed at a decade ago, McCain’s proposal to renegotiate has support among some environmentalists, including Jen Pelz, wild rivers program director with WildEarth Guardians. She says the only way to fix the river’s fundamental supply-demand problem is to go back to the beginning.

“It’s just like curing illness, right? You have to get at the source,” she said.

Old agreements among states to manage water in the West don’t reflect modern realities, like climate change or broader environmental concerns, Pelz said. Compacts for the Colorado and Rio Grande rivers allocate every drop for human use. There’s value in leaving water in rivers for recreation and ecosystem health, she says.

“I think that is a huge problem, and I think that we don’t want to have that conversation because it’s hard,” Pelz said.

The river’s foundational problems are front of mind these days as Colorado River water managers are attempting to finalize new agreements called Drought Contingency Plans, designed to boost declining reservoirs and cut back on water use throughout the watershed. Pelz says the plans don’t go far enough.

“It’s all like shuffling chairs on the Titanic,” she said. “The ship is sinking still. And if you shuffle all those chairs around and you make it look pretty, it’s still not going to make any difference.”

Reopening the Colorado River Compact would require the support of people like Pat Tyrrell, the Wyoming state engineer. And he is not interested.

“No, I would never advocate going back to the compact,” he said.

There’s a work around, he says. Rather than renegotiate the original document, water managers like him come up with new agreements that build on it and address some of the compact’s bad math. But throwing the whole thing out would be a mistake.

“If it were to go away, there would be a free for all,” Tyrrell said. “There is no magic second compact sitting in the wings behind it, and the battle between Arizona, California and Nevada against us four Upper Basin states would be brought anew.”

Although water managers today have no appetite for changes to the compact, it’s uncertain the compact’s framers meant for it to be immutable. When Commerce Secretary Herbert Hoover was selling the deal to Congress, he hedged the agreement’s finality. In 1926, Hoover told members of a House committee that if the deal could “provide for equity for the next 40 to 75 years, we can trust to the generation after the next to be as intelligent as we are today.” And that those future water leaders “will settle it in the light of the forces of their day.”

In his Ph.D. dissertation at University of Colorado, Jon Berggren, now a water policy analyst at Western Resource Advocates, summarized Hoover’s testimony as suggesting that, “at least from Hoover’s perspective, the negotiators of the compact did not intend to make the original allocations of the compact static.”

Hoover gave the original agreement a shelf life of 75 years.

“He underestimated us a little bit, didn’t he? We’re still here making it work,” Tyrrell said. “We have shown in the Colorado River Basin the ability to adapt, even in areas where the compact may may feel constraining.”

The word “adapt” seems to go over a lot better with Colorado River water managers than the dreaded “renegotiation.”

This story is part of a project covering the Colorado River, produced by KUNC and supported through a Walton Family Foundation grant. KUNC is solely responsible for its editorial content.