Law of the River

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Overview

The "Law of the River" is a term of art used to encompass all of the laws, regulations, treaties, compacts, contracts, environmental impact statements and accompanying records of decisions, and all other mechanisms for managing the river. This section provides an overview of key aspects of the Law of the River, provides links to key documents, and also a list of other Law of the River resources.

Especially noteworthy are 4 documents issued by Interior/Reclamation since 1933 approximately every 30 years, except for the first update in 1948. Each document consists of several chapters of analysis followed by extensive appendices. Where appropriate, links are provided to useful chapters and appendixes in the sub-sections below. The complete documents are also provided:

Summaries of the Law of the River of various lengths are provided by:



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1902 Reclamation Act (32 Stat. 388)

The 1902 Reclamation act, also known as the Newlands Act after the chief sponsor, Senator Francis Newlands of Nevada, allowed the federal government to study and construct irrigation works in 16 Western States and territories. The efforts were initially funded from the sales of public lands in those states. Large projects, like Hoover Dam, were funded by direct congressional appropriations. Shortly after the act was signed into law by President Teddy Roosevelt, the Reclamation Service was established by Interior Secretary Hitchcock within the USGS to carry out the purposes of the act. In 1907 the Reclamation Service became a separate entity within the Department of Interior and in 1923 it was renamed the Bureau of Reclamation. The act was later modified multiple times, most notably by 1982 Reclamation Reform Act (link). Reclamation operates about 180 projects in the American West.

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1908 Supreme Court Winters v. United States, 207 U.S. 564

The 1908 Supreme Court case of Winters underpins all Native American water rights and thus is included in this list. The Supreme Court found that Congress implicitly created a federal “reserved” water right of a sufficient amount for irrigation purposes when it created the Fort Belknap Indian reservation. Federal reserved water rights are unique in that they cannot be lost through lack of use, and have a priority dating to the time of the creation of the reservation. Quantification of these rights has occurred through litigation and increasingly through Congressionally approved and funded voluntary settlements.

In the 1963 Opinion and 1964 Decree in Arizona v. California, the Court quantified the size of Winters rights in as the ‘practicably irrigable acreage’ of the reservation. That decree awarded more than 900,000 af of water per year to 5 different mainstem Arizona tribes, Cocopah, Colorado River Indian Tribes (CRIT), Fort Mohave. Later adjustments to the Decree added additional acreage and water rights to the reservations (see 2006 Consolidated Decree and Verberg 2010). Arizona v. California also extended the idea of a federal reserved right to other federal reservations such as forests and wildlife refuges.

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1922 Colorado River Compact

The 1922 Compact is a short document that fits on 4 typed pages. Article I states the purposes of the Compact which include "the equitable diversion and apartment of the use of the waters of the Colorado River System" among 4 other purposes. Article II supplies 8 key definitions for "Colorado River System", "Colorado River Basin", "States of the Upper Division", "States of the Lower Division", "Upper Basin", "Lower Basin" and "domestic use". "Upper Basin" and "Lower Basin" are defined using watersheds with Lee Ferry as the dividing line between the two basins. In common usage today, "Upper Basin" and "Lower Basin" are often, but not exclusively, used to mean what the Compact defines as the "States of the Upper Division" and "States of the Lower Division", namely Colorado, New Mexico, Utah and Wyoming for the Upper Basin and Arizona California and Nevada for the Lower Basin. In the definition for Upper and Lower Basins It is important to note that the Compact acknowledges that small portions of Arizona lies in the hydrographic Upper Basin and small parts of Utah (e.g Virgin River) and New Mexico (e.g. Gila river) lie in the Lower Basin.

Article III provides the allocation in 7 different subsections, (a) to (f). Subsection (a) grants 'exclusive beneficial consumptive use' (not defined) of 7.5 maf to each basin. Subsection (b) grants the Lower Basin an additional 1 maf of beneficial consumptive use. Subsection (c) provides that in the event of a treaty with Mexico, those waters will first come from 'surplus' over and above the amounts in subsections (a) and (b), and then from equal shares from the Upper and Lower Basins. Further, the Upper Basin shall supply its amounts at Lee Ferry. Subsection (d) says the the states of the Upper Division will not cause the flow at Lee Ferry to be depleted below an aggregate of 75 maf every 10 running years. Subsection (e) says that the Upper Division states stand not withhold water and the states of the Lower Division shall not require water delivery than cannot reasonably be applied to domestic and agricultural uses. Subsection (f) provides for future allocation of after October 1963. Subsection (g) discusses how states will call for future apportionment.

Article IV states that the river has ceased to be navigable and allows power generation but makes that generation 'subservient' to domestic and agricultural purposes. Article VI deals with claims and controversies. Article VII states that the Compact does not affect the obligations of the United States to Indian tribes. Article VIII says that 'Present Perfected Rights' are unimpaired by the compact and that whenever 5 maf of storage has been provided for the benefit of the Lower Basin, any claims of Present Perfect Right holders, if any, against the Upper Basin shall 'attach to and be satisfied' from the stored water. Article IX allows for unanimous termination of the compact. Article X says the compact will become binding upon the approval of the legislatures of the 7 states and the Congress.

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1928 Boulder Canyon Project Act (45 Stat. 1057)

The Boulder Canyon Project Act was enacted to control floods, improve navigation, regulate flows, store and deliver water for the reclamation of lands, and to generate electricity. It funded and approved the construction of Hoover Dam and the All-American Canal contingent on the approval of the Colorado River Compact. Given Arizona’s refusal to ratify the Compact because of disputes over the Gila River and its desired allocation, the act allowed for approval if 6 states, including California, ratified the compact provided that California limited itself to 4.4 maf /year of Colorado River water. The act reserved for Arizona complete use of its tributaries. In 1963, the US Supreme Court in Arizona v. California found that Congress via the act had apportioned the flow of the Colorado River among California, Nevada and Arizona.

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1931 California Seven Party Agreement

The Secretary of the Interior requested California internally agree on the priorities of Colorado River water users before issuing water contracts from Hoover Dam. In 1931 the parties provided this agreement. The first three priorities totaled 3.85 maf/year of water for agricultural uses in the Palo Verde Irrigation District, the Yuma Project (Reservation Division), and the Imperial and Coachella Valley irrigation districts. The 4th priority was 550 kaf/year for the Metropolitan Water District. These first four priorities totalled 4.4 maf/year. Three additional priorities to Metropolitan, San Diego, Imperial, Coachella and Palo Verde added another 962 kaf/year in use for a total of 5.362 maf/year. Due to ambiguities in the original agreement, in 2003, the parties agreed to modifications of priorities 3(a) and 6(a) in the Federal Quantification Settlement Agreement or QSA. The Federal QSA is also discussed below under 2003 Colorado River Water Delivery Agreement.

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1944 Treaty with Mexico

The 1922 Colorado River Compact anticipated a treaty with Mexico in Article III(c), and in 1944 that treaty was signed, giving Mexico 1.5 maf/year, with up to 200 kaf/year extra in ‘surplus’ years and possible reductions commensurate with United States cutbacks during ‘extraordinary drought’. The International Boundary Waters Commission ("IBWC"), consisting of an American Section and a Mexican Section, is the operational entity for the treaty. The treaty is commonly accepted to be the highest priority right on the river in the Long Range Operating Criteria among other places. The treaty was silent about water quality. In 1961 the Mexicans complained about highly saline water deliveries after the Wellton-Mohawk starting pumping highly saline groundwater into the Gila River which then flowed to Mexico. This ultimately led to modifications of the treaty via several "Minutes" in 1965, 1972 and 1973, the standard mechanism for changes. In 2012, Minute 319 was signed with a number of new features. Especially noteworthy was a planned environmental 'pulse flow' of about 150 kaf to the Colorado River Delta that was accomplished in 2014. For the first time, Mexico was allowed to store water in Lake Mead under Intentionally Created Mexican Allocation. Quantified amounts of extra surplus water at high Lake Mead elevations and delivery reductions at low Lake Mead elevations were agreed upon, in a similar fashion to US arrangements in the 2007 Guidelines. In 2017, Minute 323 built upon Minute 319 which expired in 2017. Among many provisions, it provided that Mexico would agreed to additional delivery reductions if the United States completed its Drought Contingency Planning efforts underway at the time. With the approval of the DCP in 2019, these arrangements then became operational. Additional environmental water and funding for environmental projects was also agreed upon. A concept called 'Mexico's Reserve Water', an up to 1.5 maf account in Lake Mead for a number of purposes was created.

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1948 Upper Colorado River Basin Compact

The 4 main Upper Basin States (Colorado, New Mexico, Utah, Wyoming) plus Arizona, signed the Upper Colorado River Basin Compact on October 11, 1948. The 1948 Compact was modeled on the 1922 Compact but is significantly longer and contains far more details. Article III apportions water among the states on a percentage basis with Colorado receiving 51.75%, New Mexico 11.25%, Utah 23% and Wyoming 14% of the flow available for use under the 1922 Colorado River Compact. Arizona receives a flat 50,000 acre-feet for its very small landbase within the hydrologic Upper Basin. Article IV describes how the Upper Basin will handle a ‘curtailment’ if the 75 maf/10 year non-depletion obligation at Lee Ferry in Article III(d) of the 1922 Compact is violated. (A compact ‘curtailment’ is sometimes referred to as a ‘compact call’, using language from states’ prior appropriation systems whereby a downstream senior diverter can request (a “call”) that the state water engineer cut off diversions by an upstream junior diverter so that the senior can receive water. While convenient shorthand, there is no equivalent mechanism in the 1922 Compact and no impartial entity to determine if a violation has occurred.) Article V describes how to account for reservoir losses. Article VIII established the Upper Colorado River Commission (website) with one representative from each of the 4 states plus a United States Representative. Articles XI to XIV allocate the waters of specific interstate streams among states.

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1956 Colorado River Storage Project Act (70 Stat. 105)

The 1956 Act approved the construction of Glen Canyon Dam (26.2 maf, completed 1963), Navajo Dam and Reservoir on the San Juan (1.7 maf, completed 1962), Flaming Gorge Dam and Reservoir on the Green River (3.8 maf, completed 1962) and the Aspinall Unit on the Gunnison River (previously Curecanti Unit) (3 Dams – Blue Mesa 940 kaf, Crystal 26 kaf, and Morrow Point Dams 117 kaf). The act created an Upper Colorado River Basin Fund to collect revenues from power, repayments etc. It also funded 11 other ‘participating projects’. The act approved studies on 25 additional projects, including, notably, the San Juan-Chama Project, an important transbasin diversion from the San Juan River to the Rio Grande approved in 1963. Finally, it authorized up to $760m to fund the projects.

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1963 Arizona v. California Supreme Court Opinion and 1964 Decree

(Adopted from Nathanson 1978, Chapter 1, Summary of the Law of the River)

Other suits here...

Arizona refused to ratify the Compact for decades, in large part because of a dispute of the use of its tributaries. It also had a long-standing dispute with California over how much each state was entitled to. In 1944 Arizona finally contracted with Interior for water from Hoover Dam and in 19xx ratified the Compact. Reclamation in 1948 issued a report on the feasibility of the Central Arizona Project, concluding that the CAP was feasible if Arizona's water claims were valid, but not feasible if the claims were invalid. In 1951 the House Interior Committed adopted a resolution that deferred action on the CAP until Arizona's water rights were adjudicated. This action led to Arizona filing a suit in the Supreme Court in 1952 to resolve it rights. (Disputes between states bypass lower courts.) In the 1954 the Supreme Court appointed a Special Master to hear the case and a 2nd Master in 1955 after the death of the first Master. A two-year long trial in San Francisco lasted from June 1956 to August 1958. The Special Master issued a report to the Supreme Court in 1960. In 1963 the U.S. Supreme Court issued an Opinion on the case, mostly, but not completely, following the recommendations of the Special Master.

The Court found that the Congress in enacting the Boulder Canyon Project Act had apportioned the waters of the Colorado by statute, the first such Congressional Apportionment. The Court found that the Project Act apportioned only the waters of the mainstream, and that the tributaries (e.g. Arizona's Gila River) were reserved to the exclusive use of the state in which the tributaries were located. The court found that all water use had to be under contract with the Secretary, as laid out in the Act. California was limited to 4.4 maf, Nevada 300 kaf, and Arizona with the remainder or 2.8 maf. The Secretary was given the right to determine the methods of apportioning shortages subject to some conditions. It found that five Native American Resevations along the river using the concept of 'practicably irrigable acreage' were entitled to about 900 kaf to irrigate about 140,000 acres, in alignment with its 1909 Winters ruling. The Court found that other Federal reservations of land (e.g., National Recreation Areas, National Wildlife Refuges, National Forests) were also entitled to sufficient water to ensure the purposes of the reservations. It found that all uses of water within a state are to be charged to the state in which the uses occurred. It declined to make a ruling on disputed boundaries of the Colorado River Indian Reservation and the Fort Mohave Indian Reservation. The Supreme Court retained ongoing jurisdiction over the case and since 1963 there have been a number of supplemental decrees involving mostly additional land and water claims by Native American Tribes. This has led to 2 supplemental decrees, one in 19xx and one in 19xx. In additional, a 'consolidated' decree was issued in 2005, unifying all decrees since the original 1964 decree.

The 1964 Decree contains a number of specific definitions and orders. It defines "consumptive use" as diversions less return flow rather than the "inflow-outflow" method using stream gages. (See Kuhn and Fleck for a discussion of the difference.) The US must release water first for river regulation, navigation and flood control, then for irrigation and domestic used, and finally for power. Article II(B)(2) apportions surplus water in a pro-rata quantities based on the 4.4/2.8/0.3 allocation. Article II(B)(3) deals with shortages, apportioning water first to 'Present Perfected Rights" in order of priority without respect to state lines, and then in any manner the Secretary chooses as long as it is consistent with the Boulder Canyon Project Act. The Decree makes a number of allocations to tribes and federal reservations. The Decree requires the US to prepare annual reports of water releases, diversions, return flows, consumptive use, quantities delivered to Mexico. These reports, now known AS SXX found here. The Decree says the states are to provide the Court with specific claims so that it can establish Present Perfect Rights. The parties were allowed to apply for future relief if necessary.

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1968 Colorado River Basin Project Act 82 Stat. 885

The 1968 Colorado River Basin Project Act provides Congressional approval and funding for Arizona's long sought Central Arizona Project after the Supreme Court ruled in 1963 on Arizona's claims for Colorado River water. The CAP is a large (up to 1.6 maf/year, +1200 cfs) 336 mile long canal that moves water from the Colorado River at Lake Havasu all the way to south of Tucson passing Phoenix and Pinal County (agriculture) on the way. Previous efforts in the 1950s and 1960s to pass similar legislation had failed due to the unresolved Arizona claims to Colorado River water. In exchange for its votes to pass the Act, California received a senior priority to water over the CAP canal should there be a Lower Basin shortage (Section 301(b)). The Upper Basin received approval for 5 projects, of which 3 were built. Early versions of the act proposed large dams in the Grand Canyon to help fund repayment costs and provide energy for the CAP canal pumping plants. Due to public outcry, these dams were removed from the final act and were replaced by the Navajo Generating Station, a coal-fired power plant, which was shut down in 2019 and is now being demolished. The canal was finished in stages, with the final section completed in 1994. Total cost was over $4B. The canal is managed by the Central Arizona Water Conservancy District. Section 602 directed the Secretary to create Upper Basin reservoir operating rules such that the Upper Basin would be in compliance with the Compact's Mexico Treaty obligation (Article III(c)), the Compact's Upper Basin 'non-depletion' obligation (Article III(d)), and Compact Article III(e) which allows for Lower Basin use of unused Upper Basin water. The first of these rules were formalized in 1970 in the Long Range Operating Criteria and modifications were made in later years. In 2007, for the first time, rules for when and how much to cutback deliveries were formalized in the 2007 Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead. In 2022, the first formal 'Tier 1' shortage for the Central Arizona Project and Nevada occurred. Under the 2019 Drought Contingency Plans , California agreed to take shortages in "Tier 2b", at Lake Mead elevation 1045', an action outside of its senior status conferred by this 1968 act.

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1970 Long Range Operating Criteria (i.e. Sections 602(a-c) of 1968 Colorado River Basin Project Act)

With the completion of Glen Canyon, Flaming Gorge, Navajo and the Curecanti/Aspinall unit in the early 1960s, operating along with Lake Mead (first filled in 1935) it became clear that rules were needed on how to jointly operate all the dams and reservoirs to be in compliance with the 1922 Colorado River Compact, the 1944 Mexican Treaty and the 1948 Upper Colorado River Basin Compact. Section 602 of the 1968 Colorado River Basin Project Act tasked Interior with devising long range operating criteria (LROC) for its dams by July 1, 1970 to address these compliance issues. Of particular concern to all parties was how the Upper Basin Mexico Treaty obligation under Compact clause III(c) (if any), Compact clause III(d), the 75 maf/ 10-year Upper Basin non-depletion obligation, and Compact clause III(e) which allows for Lower Basin use of unused Upper Basin water, would be operationalized.

A somewhat similar issue between the Upper and Lower Basins had arisen over how to fill Lake Powell starting in 1963 because its filling would impact Lake Mead power production and possibly Lower Basin water deliveries. The filling issues were addressed in 1963 with the release of Filling Criteria which remained operational until Powell filled to elevation 3700’ in 1980.

Section 602(a) covers storage and releases from Upper Basin reservoirs. It prioritizes releases from reservoirs giving the (1) Mexico Treaty releases the highest priority, (2) III(d) releases the next priority, and (3) III(e) releases the lowest priority. Interior is to determine the amount of water needed in Upper Basin storage to assure deliveries of items 1 and 2, without impacting Upper Basin uses. If Upper Basin storage exceeds this amount ("602(a) storage") then additional releases can be made for (3) subject to certain conditions, e.g, Powell can not be lower than Mead.

Section 602(b) also requires the Secretary to send to Congress each year on January 1 a report describing the operations of the previous year, and the operations for the next year, now know as the Annual Operating Plan (AOP).

Section 602(c) requires that the LROC are operated in conformance with Section 7 of the 1956 Colorado River Basin Storage Project Act. Section 7 says that hydropower is a secondary use of water and it shall not impair consumptive uses.

The first LROC was released on June 8, 1970 and contained three sections, I, II, and III.

Section I requires the Secretary to transmit to Congress and annual report describing the past year operation and the planned operation for the current year. The January plan could be revised and Congress informed of such changes by June if necessary.

Section II deals with the operation of Upper Basin Reservoirs. The key element is the determination of "602(a)" storage, that is the amount of water needed to make reliable long-term releases to the Lower Basin and Mexico. The Secretary was directed to release 8.23 maf/year from Lake Powell if the storage was less than the 602(a) amount. This amount is one-tenth of the 10-year III(d) amount (7.5 maf/year), plus one half of the Mexico Treaty obligation (.75 maf/year) less a small tributary just upstream of the Compact delivery point at Lee Ferry (the Paria River, 20 kaf/year). If the forecast storage was to be greater than the 602(a) amount, water should be released at a higher rate to (a) uses in the Lower Basin allowed under Compact clause III(e), (b) to maintain Lake Mead equal to Lake Powell, and (c) to avoid spills from Powell.

Section III deals with the operation of Lake Mead. The LROC described 3 conditions, surplus, normal and shortage to determine the size of Lake Mead Releases. (Some copies of the 1970 LROC misname "shortage" as "storage". See the original Federal Register Notice for the correct form.)The determination of the condition was left to the Secretary of Interior. Water releases from Mead were to be made in priority of Mexico, Lower Basin consumptive uses, river losses, reservoir losses and regulatory wastes. Under 'normal' releases, 7.5 maf of consumptives uses were to be satisfied. Under surplus, the Secretary could release more than 'normal'. Under shortage, the shortage provisions in the Arizona v. California decree would become effective (Decree Article II(B)(3) and mainstream uses would be limited by Section 301(b) of the 1968 Colorado River Basin Project Act. Section 301(b) requires Central Arizona Project deliveries to be eliminated before California is required to take delivery reductions.

It is important to note that the #2001 Interim Surplus Guidelines, the #2007 Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead, and the #2019 Drought Contingency Plans modified the operating criteria by formalizing rules for surplus and shortage.

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1974 Colorado River Basin Salinity Control Act (88 Stat. 266)

The 1974 Colorado River Basin Salinity Control Act came about in large measure because of highly saline water deliveries from the US to Mexico starting in 1961. In 1961, the Welton-Mohawk Irrigation district began pumping highly saline groundwater into the Gila River. This water flowed downstream to Mexico and increased the salinity in the mainstem. At about the same time, water deliveries to the International Border dropped from nearly 4 maf/year to the treaty requirement of 1.5 maf because of the filling of large upstream Colorado River Storage Project reservoirs. This also increased the salinity because of less dilution. In November on 1961 Mexico lodged a formal complaint about the quality of water they were receiving. Both actions increased the salinity in the mainstem from approximately 800 ppm to 1500 ppm. The 1944 Treaty was silent about water quality.

Minute 218 was signed in 196x as a five-year temporary solution. Minute 241

Finally, in 1972, Minute 242 was signed as a permanent solution.

After Minute 242 was signed in 1972, the US passed the Salinity Control Act to implement a number of items agreed to in the Minute. Title I addressed programs downstream of Imperial Dam. This included the construction of a 129 mgd (~144 kaf/year ) desalting plant at Yuma, the extension of a large drain to carry salty water to the Santa Clara Slough (Cienega de Santa Clara), reduce the acreage in the Welton-Mohawk Irrigation District from 75,000 acres to approximately 65,000 thru purchase, increase temporary storage capacity at Painted Rock Dam on the Gila for flood prevention, line 49 miles of the Coachella Canal to conserve water, and construct operate and maintain 160 kaf of well capacity near Yuma to meet a portion of the Mexico delivery. Title II addressed measures upstream of Imperial Dam. The Secretary was authorized to construct and operate salinity control units at the Paradox Valley, Colorado, Grand Valley, Colorado, Crystal Geyser, Utah and Las Vegas Wash, Nevada. A number of planning reports were to be expedited. A section of the act dealt with the allocation of the costs of the various units. In 1973 the Basin States had proactively created a Colorado River Basin Salinity Control Forum to address salinity issues. The Act also created an Advisory Council composed of no more than 3 members per Colorado River Basin state to be appointed by the governors. Today both organizations continue to exist with generally completely overlapping membership.

In the 1980s the federal government changed the salinity control focus from federal projects to on farm measures administered by the USDA.

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1975 Grand Canyon Enlargement Act

In 1975 the Congress transferred all federal lands from the Paria River, just above Lee Ferry, all the way to the Grand Wash Cliffs where the river exits the physical Grand Canyon onto a broad plain at Lake Mead, to enlarge the existing Canyon Canyon National Park to match the boundaries of the physical Grand Canyon. It also provided the Secretary of Interior with the authority and funding to purchase additional lands in the designated corridor as necessary. In addition to recognizing that the physical Grand Canyon was much larger than the existing National Park, this action was taken in part to rule out future dams like the proposed 'cash register' dams in Marble Canyon and Bridge Canyon Dams to help pay for the Central Arizona Project. The act abolished the Grand Canyon National Monument, a 1932 monument in the Lower Grand Canyon created by President Hoover, and Marble Canyon National Monument, a 1969 designation by President Johnson just before leaving office. Both monuments and other federals lands were incorporated within the greatly enlarged park.

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1992 Grand Canyon Protection Act , 1995 FEIS and 1996 Glen Canyon Dam ROD

In 1992 the Congress passed the Grand Canyon Protection Act which ordered the Secretary of Interior to operate Glen Canyon Dam in such a manner to protect, mitigate adverse impacts to and improve the values for which Grand Canyon National Park and Glen Canyon National Recreation Area were established. Not later than 2 years after the date of the Act, the Secretary was to complete a Glen Canyon Dam environmental impact statement and from that the Secretary was to adopt criteria and operating plans separate from and in addition to Section 602(b) of the Colorado River Basin Project Act. An annual report was to be completed describing operations of the preceding year and the projected year operations. This is to be in addition to the required 602(b) report. The Secretary was instructed to create a long-term monitoring program and activities to ensure compliance with the overall goals of the Act. The EIS was released in 1995 and the Record of Decision in 1996. The USGS created the Grand Canyon Monitoring and Research Center to provide input into the Glen Canyon Dam Adaptive Management Program.

In 2016, the LTEMP EIS and ROD were released, modifying the 1995 EIS and 1996 ROD.

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2001 Interim Surplus Guidelines

In 2001 Interior put in place rules for determining when surplus water from Lake Mead would be made available to Arizona, California and Nevada. The rules were to run through calendar year 2016 but were later extend to 2026 to match the 2007 Interim Guidelines. The rules interact with the Long Range Operating Criteria and the 1964 Arizona v. California decree, specially article II(B)(6) which governs the allocation of 'unused basic apportionment water'.

Section XI of the ROD, "Implementing the Decision", provides the surplus rules. When Lake Mead is at or below elevation 1125' the Secretary shall determine a 'Normal' or 'Shortage' year. A 'Partial Domestic Surplus' will exist when Mead is between elevation 1125' and 1145'. When Mead is above 1145' and below the "70R Strategy" amount, a 'Full Domestic Surplus' shall be declared. A 'Quantified Surplus' shall be declared when there is a risk of potential reservoir spills from Mead. Finally, a 'Flood Control Surplus' shall exist when either 'space building' or flood control releases are necessary.

The guidelines indicate that Reclamation intends to develop shortage guidelines through the 5-year review of the LROC, when appropriate. That process commenced in 2005 and resulted in the 2007 Interim Guidelines.

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It is important to note that the #2001 Interim Surplus Guidelines, the #2007 Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead, and the #2019 Drought Contingency Plans modified the Long Range Operating Criteria by formalizing rules for surplus and shortage.

2003 Colorado River Water Delivery Agreement

The 2003 Colorado River Water Delivery Agreement is a complicated agreement formalized by a Record of Decision and FEIS. Prior to the completion of the Central Arizona Project in 1994, California was using in excess of its 4.4 maf/year apportionment, a use of the unused apportionments of Arizona and Nevada allowed by the Arizona v. California 1964 decree and by Compact Article III(e). With the completion of the Central Arizona Project in 1994 and growth in Las Vegas, Arizona and Nevada began to use their full apportionments in the mid 1990s. After 1996, the Secretary allowed the excess use to continue under the surplus provisions of the decree. With the expectation that surpluses would diminish in future years, California undertook a process to reduce its uses to 4.4 maf / year, an effort sometimes referred to as the '4.4 Plan'. This process involved a number of complicated steps including a 'Quantification Settlement Agreement' among Coachella Valley Water District, Imperial Irrigation District, and Metropolitan Water District of Southern California dealing with California's apportionment of Colorado River water dating back to the 1931 California Seven Party Agreement. Certain transfers of water were also approved, including water to the San Diego Country Water Authority. In all, the agreement allowed between 200,000 and 400,000 acre-feet of more water per year diverted at MWD's Lake Havasu diversion point rather than at Imperial Dam, the diversion point for the Imperial Irrigation District's All-American Canal. The federal portion of the QSA water transfers were implemented by the 2003 Colorado River Water Delivery Agreement; other non-federal agreements between the California diverters were made separately (See IID website, below.). In addition, the agreement lays out how these diverters will pay back inadvertent delivery overruns in the Inadvertent Overrun and Payback Policy (IOPP). An EIS was conducted to make sure that there agreements would not harm endangered species.

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2005 Multispecies Conservation Program Record of Decision and FEIS

The Mutlispecies Conservation Program is a large (57 entity) effort in the Lower Colorado River to provide Endangered Species Act compliance for diversions in the Colorado River below Hoover Dam. It will run through 20xx and had total funding of $xxxm. Every major diverter in the Lower Basin participates in this program. An operational entity, the XXXXX, oversees the program.

MENTION SPECIES


From the Operational Entity website:

The Lower Colorado River Multi-Species Conservation Program (LCR MSCP) was created to balance the use of the Colorado River water resources with the conservation of native species and their habitats. The program works toward the recovery of species currently listed under the Endangered Species Act (ESA). It also reduces the likelihood of additional species listings. Implemented over a 50-year period, the program accommodates current water diversions and power production, and will optimize opportunities for future water and power development by providing ESA compliance through the implementation of a Habitat Conservation Plan (HCP).

The program area extends over 400 miles of the lower Colorado River from Lake Mead to the southernmost border with Mexico, and includes lakes Mead, Mohave, and Havasu, as well as the historic 100-year floodplain along the main stem of the lower Colorado River. The HCP calls for the creation of over 8,100 acres of habitat for fish and wildlife species and the production of over 1.2 million native fish to augment existing populations. The plan will benefit at least 27 species, most of which are state or federally listed endangered, threatened, or sensitive species.

The Bureau of Reclamation is the implementing agency for the LCR MSCP. Partnership involvement occurs primarily through the LCR MSCP Steering Committee, currently representing 57 entities, including state and Federal agencies, water and power users, municipalities, Native American tribes, conservation organizations, and other interested parties, which provides input and oversight functions in support of LCR MSCP implementation. Program costs are evenly divided between the Federal government and non-federal partners.'

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2006 Navajo Dam Record of Decision and FEIS

This Record of Decision (ROD) formalized Endangered Species Act (ESA) flow recommendations to maintain or improve habitat for two endangered species, razorback sucker and Colorado pikeminnow in the San Juan Basin below Navajo Dam and Reservoir. The ROD allows for current and future water depletions in the basin to be in compliance with the ESA. Flow recommendations used in the ROD were provided by the the San Juan Basin River Recovery Implementation Program (SJRBRIP), a cooperative effort of the U.S. Fish and Wildlife Service, Reclamation, Bureau of Indian Affairs, Bureau of Land Management, South Ute and Ute Mountain Indian Tribes, the Navajo and Jicarilla Apache Nations, the states of Colorado and New Mexico, and water development interests. The selected flow alternative for operation is called "250/5000 Alternative". Under this alternative, dam releases would vary from 250 cfs to 5000 cfs. Table 2 in the Executive Summary compares the studied alternatives.

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2006 Flaming Gorge Record of Decision and 2005 FEIS

Reclamation completed an EIS to understand how modifying the operation of Flaming Gorge dam could assist in the recovery of four endangered fish and their habitat downstream of the dam. The four fish are the Colorado pike minnow, humpback chub, razorback sucker and bonytail. The proposed actions include modifying the flows and water temperatures as recommended by the Upper Colorado Endangered Fish Recovery Program. At the time of the 2005 EIS, a 1992 Biological Opinion was in operation. The flow recommendations are termed the "2000 Flow and Temperature Recommendations". They cover three reaches downstream of the dam, acknowledging that the distances and other inflows may make reaching the targets challenging at the farthest downstream locations. Reach 1 extends 65 miles downstream from the dam to the confluence of the Green and Yampa Rivers; Reach 2 extends 99 miles downstream from the Yampa to the confluence with the White River; and Reach 3 extends 246 miles downstream from the White to the confluence with the Colorado River.

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2007 Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead ROD and Reclamation FEIS

From 2000 to 2004 Lakes Powell and Mead lost 24 maf, declining from approximately 95% full to about 47% full by 2004. This was the start of the on-going Millennium Drought. In 2005 Secretary of the Interior Gale Norton informed the Basin states via letter (link) that Interior would begin a process to develop Lower Basin 'shortage criteria' beyond the minimal criteria existing in the Long Range Operating Criteria as well as criteria for the conjunctive management of Lakes Mead and Powell. She indicated that the process would aim for an ending date of December 2007. In 2007 an FEIS was completed with a preferred alternative that was a combination of "Conservation Before Shortage", an NGO alternative, and the "Basin States Alternative". A Record of Decision followed, formalizing the choice.

The Preferred Alternative featured a number of new methods for managing the river. These include:

  1. Intentionally Created Surplus (ICS), a method for a water diverter to store water in Lake Mead over years. Prior to ICS, year over year storage was not allowed and unused water was available for allocation to all diverters the next year. A number of different types of ICS were created and limits were placed on both the amounts created, the total stored and limitations on withdrawals. ICS can be created by Extraordinary Conservation, Tributary Conservation, System Efficiency, and Imported water. ICS can not be created just from unused allocation -- the diverter needs to show that the water would have been used but for the ICS effort.
  2. Determination of Surplus, Normal and Shortage elevations in Lake Mead. Surplus exists then Mead is above elevation 1145'. Normal exists between 1075' and 1145' and Shortage exists when the elevation is below 1075'. The surplus findings were taken from the 2001 Interim Surplus Criteria.
  3. Lake Powell Release Amounts. Lake Powell releases are based on Lake Powell elevations and Lake Mead elevations. There are 4 release tiers in Lake Powell: An Equalization Tier, an Upper Elevation Balancing Tier, a Mid-Elevation Release Tier, and a Lower Elevation Balancing Tier. Depending on the tier and Lake Mead elevations, the release can vary from 7.0 maf/year to 9.5 maf/year for the 3 lower tiers, with reservoir balancing releases of any amount possible in the upper Equalization Tier. Previously the Long Range Operating Criteria had set a normal release of 8.23 maf/year (the "minimum objective release"). The LROC had placeholders for HIGLER LOWER Releases.

The ROD incorporated the 2001 Interim Surplus Guidelines and extended the date of both actions to 2026. (There is often confusion over the various ending dates. In most cases the existing rules will cover operating plans through the end of 2026, but the guiding rules/documents may expire at the end of 2025. A process will likely need to be in place by the start of 2026 to devise an operating plan for 2027.)

Surplus amounts range from xx/year at elevations below 1075' xx /year at elevations below 1050' and x...

The Lower Basin Drought Contingency Plan begins 'DCP contributions' (i.e. foregone water deliveries) at elevation 1090' in Lake Mead, 15' higher than the first shortage level agreed to in 2007 Interim Guidelines.

Resources

2012 Aspinall Unit Record of Decision and FEIS

In 2012 Reclamation issued a Record of Decision (ROD) on the operations of the Aspinall Unit, i.e., Blue Mesa, Morrow Point and Crystal Dams on the Gunnison River in Colorado. The ROD modified reservoir operations to produce higher and more natural downstream spring flows and moderate base flows to avoid jeopardizing four endangered fish. The recommended flows were produced by the Upper Colorado River Endangered Fish Recovery Program. Four alternative flows, plus a no action alternative were studied. Alternative B was selected, "Fish Peak with Duration Alternative". The targeted flows are measured at the Gunnison River near Grand Junction gage with spring peaks from 900 cfs in dry years to over 14,000 cfs in wet years. Base flows, minimum flows and ramping rates are part of the flow package. The flows are based on the Blue Mesa forecasted inflows from April to July from the National Weather Service's Colorado Basin River Forecast Center.

Resources

2016 Glen Canyon Dam Long-Term Experimental and Management Plan ROD and FEIS

The Long-Term Experimental and Management Plan (LTEMP) is a joint Reclamation and National Park Service effort focussed on the operations of Glen Canyon Dam. The LTEMP is a framework for adaptively managing the operations of Glen Canyon Dam for 20 years consistent with the 1992 Grand Canyon Protection Act (GCPA) and other federal law, including many aspects of the Law of the River. The LTEMP would determine specific dam operation options, non-flow actions, and experimental and management actions that are consistent with the GCPA which mandates that Interior operate Glen Canyon Dam in such a manner to protect, mitigate adverse impacts to and improve the values for which Grand Canyon National Park and Glen Canyon National Recreation Area were established.

National Park Service lands include Glen Canyon and Lake Mead National Recreation areas, and Grand Canyon National Park. Reclamation operates Glen Canyon Dam.

The LTEMP builds on the 1995 EIS on Glen Canyon Dam operations, and the 1996 Record of Decision, which were a direct result of the 1992 Grand Canyon Protection Act. The ROD created the Glen Canyon Adaptive Management Program (GCDAMP), a joint effort of Reclamation and the USGS's Grand Canyon Monitoring and Research Center (GCMRC).

Resources

2019 Drought Contingency Plans

In 2019 the Basin States signed a series of agreements known as the Drought Contingency Plans (DCP). The DCP is often thought of as a single plan for the Lower Basin but the DCP has 4 separate agreements: an overall agreement signed by both basins known also as the "Companion Agreement", two Upper Basin DCP Agreements (Attachments A1 and A2), and a Lower Basin DCP Agreement (Attachment B).

The overall Companion Agreement contains statements of support for the Upper Basin DCP, the Lower Basin DCPs, federal legislation to implement the LB and UB DCPs as well as implement Mexico's DCP participation via Minute 323, Section IV in addition to other implementing language.

For the Upper Basin, there are two agreements, the Drought Response Operations Agreement or DROA (Attachment A1 to the Companion Agreement) and a Demand Management Storage Agreement (Attachment A2 to the Companion Agreement) . The Drought Response Operations agreement focusses on actions to keep Lake Powell above elevation 3525'. These actions are triggered by Reclamation's 24-Month study projections for Lake Powell levels. The Demand Management Storage Agreement authorizes the use of up to 500,000 acre-feet of storage in Colorado River Storage Project Act 'Initial Units' (i.e. Glen Canyon, Flaming Gorge, Navajo and Curecanti units) for storing Upper Basin water that could be used assure compliance with the Colorado River Compact. "Demand Management" is a concept that the Upper Basin wants to explore but has yet to be implemented.

For the Lower Basin, there is a Lower Basin Drought Contingency Plan Agreement (Attachment B to the Companion Agreement) . It refers to Exhibit 1, a document entitled "Lower Basin Drought Contingency Operations" (LBOps). The LBOps agreement contains complex rules for when DCP contributions (i.e. delivery reductions) will be made at various Lake Mead elevations. These delivery reductions occur on top of shortages in the 2007 Interim Guidelines.

In 2017 via Minute 323 (Section IV), Mexico and the US agreed to a Binational Water Scarcity Contingency Plan, which would be Mexico's contribution to the US Drought Contingency Plan. With the approval of the US Congress of the DCP, this became effective in 2019. Mexico DCP contributions, like some US contributions, are 'recoverable', meaning that if Lake Mead's elevation is ever above 1110', all previous contributions re-appear in the reservoir.

Resources

Actions Pertaining to the Renegotiations of the 2007 Interim Guidelines

Section 7.D of the 2007 Interim Guidelines ROD says that "Beginning no later than December 31, 2020, the Secretary shall initiate a formal review for purposes of evaluating the effectiveness of these Guidelines. The Secretary shall consult with the Basin States in initiating this review." That review was completed in 2020. (link)

On June 14, 2022 Reclamation Commissioner Touton indicated that Interior plans to release a Federal Register Notice on the renegotiation process by the end of June, 2022.

Resources

Tribal Water Rights

Additional Resources


  • Important Law Review Articles

1978 Nathanson media:UHDDocs_1978_Chapter_I_Summary_of_the_Law_of_the_River.pdf

References

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