On the Brink of Dead Pool: The Colorado River at Risk
Loyola University Chicago School of Law, JD 2024
The Colorado River provides water to seven U.S. states and has been experiencing drought since 2000. Tensions are now rising among the seven states that depend on water from this river. At the request of the Bureau of Reclamation, states were supposed to reach an agreement for how to limit their water usage by January 31, 2023. However, as of February 14, 2023, no such agreement has been met.
Specifically the federal government requested that the states involved reach an agreement on how they would cut their water use by 20-40% of the total flow of the river, which is, in the words of New York Times Climate Reporter Christopher Flavelle, “an astonishing amount of water…” that’s “almost inconceivable.” The present failure to compromise will not only have dangerous implications for the environment and the people who depend on this water, but also creates important legal questions regarding when and where the federal government may have to step in.
The Colorado River basin provides water and electricity to forty million people in seven different states; Arizona, California, Colorado, Nevada, Wyoming, Utah, and New Mexico, as well as some Native American tribes. The River stretches 1,450 miles, and is known for “the stresses placed upon it due to over-allocation, overuse, and more than a century of manipulation.” This River has created a $5 billion-a-year agricultural industry, that continues to put stress on the resource. As of this past summer, the Colorado River is flowing at 84% of its historic average flow, with the most severe megadrought discovered in this region to be one flowing at 68% of the river’s average flow rate.
The role of California in this water crisis is an important one. The Colorado River is a major source of California’s water and the state has taken steps to reduce water use in ways that can reduce jobs and tax revenues in farming communities. On the day of the agreement deadline for the states, California released its proposed plan for state water reduction. This plan, according to California, could cut between one and two million acre feet of water “through new cuts based on the elevation of Lake Mead, a key reservoir.”
Additionally, after the states failed to reach a deal, six of the seven states submitted an alternative proposal to the Bureau of Reclamation “that outline ways to reduce water use and factored in water that’s lost because of evaporation and leaky infrastructure.” These states titled this plan the “consensus-based modeling alternative,” and proposed “revisions to reduce annual Lake Powell release volumes… and to ensure the deliverability of water downstream and power production.”
This failed agreement comes at an interesting time for environmental regulation, as in January of this year the Environmental Protection Agency (EPA) signed a new rule clarifying/defining which waters in the Unites States would be protected under the Clean Water Act (the Act). The scope of the act is a bit unclear, with industry side advocates arguing that the scope of the Act is narrow and scientists and environmentalists arguing that the scope of the Act to be broad. This Act follows legislation in 2019 that “stripped federal protections from vast categories of waters that had been protected for decades,” if they qualified as “intermittent streams,” aka the Colorado River.
The Clean Water Act as it stands today, protects small streams and streams that flow part of the year, “if they have a physical, chemical or biological connection to larger bodies of water downstream and could affect the integrity of those downstream waters.” This update brings the streams of the Colorado River that were stripped protection back into the jurisdiction of the EPA, further proving how it is the role of the EPA here to mandate changes.
If the states cannot compromise on water use, and if the federal government, through agencies like the EPA, fails to take over decision-making power, there is a high risk of harm to the Colorado River. It is “extremely unlikely that they are going to reach a deal to make the magnitude of cuts the government wants.” Officials warn of what will happen if these cuts are not made, with the worst possible outcome being dead pool, which is essentially when a river can no longer produce hydropower or deliver water downstream. Lake Mead, a man-made lake within the Colorado River system, faces this risk of dead pool, showing how urgent these problems are.
It appears unlikely that these seven states will be able to reach an agreement on their own due to the high reliance each state has both on their economic interest in the water as well as an interest in providing water to citizens. For this reason, the EPA should step in through agencies such as the EPA to solve this problem before the Colorado River reaches dead pool by using the power given by the new rule of the Clean Water Act.