Law of the River

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 below.

• The 1933 Hoover Dam Water and Power Contracts ("Wilbur and Ely, 1933", below) by Interior Secretary Ray Lyman Wilbur and Northcutt Ely, assistant to the Secretary, was the first of these documents.
• The 1948 Hoover Dam Documents, ("Wilbur and Ely, 1948" below) was released 15 years later.
• The 1978 Updating the Hoover Dam Documents ("Nathanson, 1978", below) was released 30 years later.
• The 2008 Colorado River Documents ("Verberg, 2008", below) was released after another 30 years. This document contains both an appendix and a DVD supplement reproduced herein.

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 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.

Resources

• Text of the Act
• Reclamation provides a brief history of the act here .
• An Annotated version of the Act from Reclamation.

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

The 1908 Supreme Court case of Winters underpins all Indian water rights and thus is included in this list. The Supreme Court found that Congress implicitly created a federal “reserved” water right whenever it created a reservation of any kind, e.g., National Forest, Military Base, Native American 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 Arizona (and CA?)_as the ‘potentially irrigable acreage’ of the reservation. That decree (text) awarded 700,000 af of water 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 (2005 Decree).

Resources

• Supreme Court Opinion
• John Shurts covers the history of Winters in his 2000 book, Indian Reserved Water Rights , derived from his Phd Dissertation.
• University of Utah Professor Daniel McCool put Indian Water rights in the larger context of water use in Command of the Waters, Iron Triangles, Federal Water Development and Indian Water.
• Other Law Review articles? Tribal water rights are discussed further below.
• Tribal Water Rights Page on this wiki
• Colorado State University
• Verberg 2008 provides updates post 1978 in Chapter 10 Native American Water Rights Settlements .
• University of New Mexico database
• Water and Tribes Initiative
• Arizona v. California
• Tribal Water Study

1922 Colorado River Compact

Resources

• Text of the Compact
• Nathanson 1978 provides an overview in Chapter 1 Law of the River Section B.
• Compact Minutes
• Hundley Book
• Meyers
• Other Law and Policy

1928 Boulder Canyon Project Act (45 Stat. 1057)

The Boulder Canyon Project Act (text) 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 (below) found that Congress via the act had apportioned the flow of the Colorado River among California, Nevada and Arizona.

Resources

• Text of the Act
• Nathanson’s Chapter I, Section C provides many details on the Act.
• Many documents relating to water and power contracts signed can be found in Reclamation’s compilations of Law of the River documents.
  • These include Hoover Dam Documents 1933 (link),
  • Hoover Dam Documents 1948 (text)
  • Updating Hoover Dam Documents in 1978 (text),
  • 2008 Colorado River Documents (text).
• The original act was modified in 1940 by the Boulder Canyon Project Adjustment Act which modified the power rate structure agreed to in the original power contracts.
• Pulitzer Prize winning Los Angeles Times writer Michael Hiltzik covered the construction and history of Hoover Dam in his 2010 book, Colossus

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 in the Quantification Settlement Agreement.

Resources

• 1931 California Seven Party Agreement
• Nathanson 1978 has a brief discussion of the agreement in Chapter 1, Summary of the Law of the River, Section D .
• The 2003 Quantification Settlement Agreement removed some ambiguities.

1944 Treaty with Mexico

The 1922 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. The treaty was silent about water quality. The Mexicans complained about highly saline water deliveries In 19xx after the Welton-Mohawk starting pumping salty groundwater into the Gila River which flowed to Mexico. This ultimately led to a modification of the treaty via a "Minute", the standard mechanism for changes.

Resources

• The Treaty
• Wilbur and Lyman 1948 in Chapter XIV, The Mexican Water Treaty discuss the negotiations and Senate ratification.
• Nathanson 1978 covers the treaty in Chapter 1, Section F
• Verberg 2008 covers the treaty in Chapter 4, Mexico Water Treaty Deliveries.
• The history and implications of the treaty were covered by Stanford Law School Dean Charles Meyer and Law Professor Richard Noble in a 1967 article [[1]].
• Noted historian Norris Hundley discuss the treaty in an 1967 article NAME and an out-of-print book 1966 book, Dividing the Waters .
• Nathanson, 1978 Chapter 1, Section O on Salinity Problems
• Minute 218 on Salinity
• All treaty Minutes are available on the IBWC website.
• Other Important Treaty Minutes are:
  • Extraordinary Drought Minutes
  • Environmental Minutes
  • Minute 242 on Salinity

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.

Resources

• 1948 Upper Colorado River Basin Compact Text
• Nathanson 1978 briefly discusses the Upper Colorado River Basin Compact in Chapter 1, Section G .
• Verberg 2008 devotes Chapter 7 to the The Upper Colorado River Commission .
• Verberg 2008 discusses Upper Basin water development starting with the 1956 Colorado River Storage Project Act in Chapter 8 Upper Basin Water Development.
• The Upper Colorado River Commission website.

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. Finally, it authorized up to $760m to fund the projects.

Resources

• Text of the Act
• Nathanson 1978 has a short overview of the act in Chapter 1, Section H .

1963 Supreme Court Opinion on Arizona v. California and 1964 Decree

Resources

• Supreme Court Opinions and Decrees
  • 1963 Supreme Court Opinion
  • 1964 Decree
  • 1960 Special Master Rifkind Report and Suggested Decree
  • 1979 Supplemental Decree
  • 1984 second supplemental decree. link
  • 2000 Supplemental Decree increases the water allocated to the Colorado River and Fort Mohave Indian Reservations.
  • 2005 Consolidated Decree collapses all previous decrees into one decree.
• Analysis
  • Nathanson 1978 provides extensive background on the the case in Chapter VIII Arizona v. California.
  • Nathanson 1978 provides an overview of the findings in Chapter IX Summary of Opinion and Decree
  • Verberg 2008 provides updates on the case post 1978 in Chapter 11 Arizona v. California
• Law Review Articles
  • Meyers
  • Getches
  • MacDonnell et al
• Earlier AZ v CA Cases
  • 1931 Case
  • 1933 Case
  • 1936 case

Lake Powell Filling Criteria. link

1968 Colorado River Basin Project Act 82 Stat. 885

Resources

• Text of the Act
• 1968 Colorado River Basin Project Act Text
• Nathanson 1978 provides a summary in Chapter1, Law of the River, Section M.
• Nathanson 1978 Chapter XII Colorado River Basin Project Act covers the act in detail.

1970 Long Range Operating Criteria (i.e. Section 602(a) of 1968 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 operate all the dams. A somewhat similar issue had arisen over how to fill Lake Powell starting in 1963 because its filling would impact Lake Mead power production and possibly water deliveries. Those issues were addressed in 1963 with the release of Filling Criteria (link) which remained operational until Powell filled to elevation 3700’ in 198x. Section 602(a) of the 1968 Colorado River Basin Project Act tasked Interior with devising long range operating criteria (LROC) for its dams by 1970.

The first LROC described 3 conditions, surplus, normal and shortage. The determination of the condition was left to the Secretary of Interior. A normal condition had an annual target release of 8.23 million acrefeet per year from Glen Canyon Dam, one-tenth of the 75 maf/ten years Compact Article III(d) non-depletion obligation plus one half of the annual Mexico Treaty requirement less a small tributary, the Paria River, just upstream of the Compact III(d) delivery point of Lee Ferry. This release has been called the “minimum objective release”. The LROC also established when Powell would release extra water to Mead to balance reservoir contents, known as ‘equalization’. Compact Article III(e) of the allows for unused Upper Basin water to be used by the Lower Basin and it is equalization that provides this water. It is important to note that the Interim Surplus Guidelines in 2003, the 2007 Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead, and the 2019 Drought Contingency Plan modified the operating criteria by formalizing rules for surplus and shortage.

Resources

• 1970 Federal Register Notice on LROC
• Section 602(a) of the Colorado River Basin Project Act
• Nathanson 1978 Chapter 1, Section O has an overview of the LROC.
• Nathanson 1978 Chapter VIII, Operating Criteria has a lengthy and important discussion of how the operating criteria came to be. It includes the differing views of the states and basins, the process, the initial draft criteria and the provisions in the final criteria.
• Verberg 2008 Chapter 1 Colorado River Operations provides updates on the modifications to the criteria since 1970, including the five 5-year reviews between 1975 and 1997 which did not change the criteria. Minor modifications were made in the 2005 update (text) including the specification of 14.85 maf as the “602(a) storage” amount, the minimum amount of water needed in Lake Powell for equalization releases to Lake Mead.
• media:CR_Docs_2008_Supplemental_095_69_FR_28945,_Interim_602(a)_Storage_Guideline_(May_19,_2004).pdf
• Nathanson 1978 Appendix VII has extensive material on the development of the LROC.

media:Section_602a_CRBPA.pdf

media:UHDDocs_1978_Appendix_VI_Filling_Criteria_TOC.pdf

Nathanson 1978 summarizes the 1922 Compact in Chapter 1 Law of the River Section B.

Nathanson 1978 summarizes the Filling Criteria in Chapter 1 Law of the River, Section L.

 1980 Letter terminating the Filling Criteria 

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

Resources

• The Act itself
• Papers at the time

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.

Resources

• Record of Decision for the Guidelines
• Federal Register Notice on Guidelines
• Verberg 2008 discusses the Interim Surplus Guidelines in Chapter 2 Interim Guidelines.
• Final Environmental Impact Statement for the Guidelines
  • Interim Surplus Guidelines FEIS Volume I
  • Interim Surplus Guidelines FEIS Volume II
  • Interim Surplus Guidelines FEIS Volume III

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.

Resources

• 2006 Record of Decision
• Table 2 Comparing the Alternatives
• 2006 Final Environmental Impact Statement
  • Executive Summary
  • [[media:Navajo_FEIS_2006_Volume_I.pdf | Volume I]
  • Volume 2 Technical Appendices
  • Volume 3 Comments
  • Biological Opinion
• San Juan Basin River Recovery Program

2006 Flaming Gorge Record of Decision and 2005 FEIS

Starting in xx, Reclamation conducted an EIS for the purpose of ascertaining...

The Record of Decision found that..

Resources

• 2006 Record of Decision
• 1992 Biological Opinion
• 2005 Final Environmental Impact Statement (FEIS) Documents
  • Final Environmental Impact Statement
  • Final Environmental Impact Statement Executive Summary
  • Final Environmental Impact Statement Comments
  • Final Einvironmental Impact Statement Technical Appendices
• 2005 Biological Opinion
• flow Targets

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

Resources

• December 13 2007 Signed Record of Decision
• Federal Register Notice
• Verberg 2008 in Chapter 2 Interim Guidelines for Powell and Mead.
• media:CRDocs_2008_Appendix_35_2007_Interim_Guidelines_for_Lower_Basin_Shortages_and_Coordinated_Operations_ROD.pdf Record of Decision for the Guidelines
• There was an extensive Environmental Impact Statement
  • FEIS Volume
  • FEIS Volume
• [[media:CR_Docs_2008_Supplemental_096_73_FR_19873,_Interim_Guidelines_(April_11,_2008).pdf | Federal Register Notice Announcing the Guidelines, April 8, 2008 ]
• 2005 Secretary Letter indicating need for Shortage Guidelines
• 2020 7.D. Review of the Interim Guidelines by Reclamation
  • 2020 7.D. Review of the Interim Guidelines by Reclamation
  • 2020 7.D Appendix A

2012 Aspinall Unit Record of Decision and FEIS

In 2012 Reclamation issued a Record of Decision 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 Colorado Basin River Forecast Center.

Resources

• 2012 Record of Decision
• Final Environmental Impact Statement

2019 Drought Contingency Plan

Resources

Documents Table/Picture

Additional Resources

• Chapter 1 of Nathanson 1978, Summary of the Law of the River, provides an excellent 28-page overview up to 1978.
• Reclamation's Law of the River Page

• 2018 Imperial Irrigation District's Law of the River Document

• 2022 Colorado Water Center Law of the River Document, Kwon and Gimbel, 2022
  • Law of the River
  • Federal Laws and Regulations
  • Reserved Indian Water Rights
  • Environmental Issues
  • Sharing Between US and Mexico
  • Complete Document
• Congressional Research Service article from April 2022, Management of the Colorado River: Water Allocations, Drought, and the Federal Role focusses heavily on the Law of the River (26 pages).

• Important Law Review Articles

• | IBWC Mexico Treaty Minutes

• Minutes of the 1922 Compact Meetings

• Charles Meyers, 1966, The Colorado River

Imperial Irrigation District's Law of the River Document

References

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