Equity and the Colorado River compact.
I. INTRODUCTION II. "EQUITABLE DIVISION AND APPORTIONMENT" VIA THE COMPACT A. The Spirit of Equity B. Apportionment Scheme C. Governance Structure III. ON "EQUITY" A. Context B. Principles 1. Substantive Equity 2. Procedural Equity IV. A CONTEMPORARY PERSPECTIVE ON THE RIVER AND COMPACT A. A River No More? B. Cracks in the Foundation 1. Flows to Mexico a. Lower Basin Tributaries b. "Surplus" Water c. Channel Losses 2. Flows to the Lower Basin V. REALIZING EQUITY A. Substantive Equity 1. Reciprocity 2. Flexibility B. Procedural Equity VI. CONCLUSION
It might be impossible to overstate the importance of the Colorado River to the southwestern United States--both within the Colorado River Basin and across expansive adjacent areas dependent on the river's life-giving flows. (1) In innumerable ways, the river has shaped the face of the region. It has facilitated, and continues to enable, the growth of major metropolitan areas like Albuquerque, Denver, Las Vegas, Los Angeles, Phoenix, Salt Lake City, and San Diego) It provides lifeblood for hallmark national parks of unsurpassed natural beauty and immense cultural, historical, and scientific value, including the Grand Canyon. (3) It gives sustenance to diverse American Indian tribes struggling to create viable homelands in modern U.S. society, (4) as well as to myriad farming and ranching communities whose labor feeds the nation (and beyond). Measured by any metric--economic (5) or otherwise--the Colorado River is a defining feature of the U.S. Southwest. Its fate bears immeasurably on the fate of the region.
Paralleling the significance of the Colorado River to the U.S. Southwest is the complexity of the body of laws devised for its governance. Colloquially called the "Law of the River," this body of laws encompasses an international treaty, two interstate compacts, a historic U.S. Supreme Court decision (Arizona v. California), (6) and several dozen federal statutes and regulations. (7) Evolving continuously over roughly the past century, (8) the Law of the River stands as a testament to the ingenuity needed to craft a workable interstate water allocation scheme in an arid and semi-arid region where this most precious and coveted natural resource dictates who rises and falls, who enjoys life and livelihood, and who--in no uncertain terms--does not. As does the vitality of the Colorado River, the makeup of the Law of the River bears pivotally on the fates of sovereigns and diverse water users who have critical interests in the river.
Both the Colorado River and the Law of the River have entered into a critical stage in recent decades. Unprecedented challenges face policy makers seeking to navigate through a period aptly labeled the "era of limits." (9) Painting with a broad brush, the core issue of this era is overuse, an outcome inadvertently facilitated by an earlier period of overallocation. (10)An imbalance between water supplies and demands exists in the Colorado River Basin--with demands exceeding supplies on an annual basis consistently since the early- to mid-2000s--and this gap is projected to widen in the future absent significant reforms. (11) Although several innovative measures have emerged to address this supply-demand imbalance during the past two decades, (12) it remains to be seen whether these measures will be sufficient for this purpose. It is entirely foreseeable--and rings an optimistic tone--that the best is yet to come.
But what precisely will the "best" legal and policy innovations look like in the future of Colorado River governance? And even more fundamentally: How exactly should these innovations be formulated and consensus reached regarding them? These questions underlie a host of efforts currently under way that aim to assess, in one form or another, the present state of Colorado River governance. Diverse entities are engaged in this assessment process, including a variety of academic institutions, (13) federal and state agencies, (14) private sector participants, (15) and non-governmental organizations. (16) Among these entities is the Colorado River Governance Initiative (CRGI)--a research initiative encompassed within the Western Water Policy Program at the University of Colorado Law School. (17) The work product of the CRGI over the past two-and-a-half years informs the focus and substance of this Article.
At the core of the CRGI's work is a broad-based normative question: How should the Colorado River be governed in contemporary times? Myriad conditions in the twenty-first century differ from those existent at earlier stages in the Law of the River's history. Climate change is an elephant in the room in this regard, with potentially profound impacts on the amounts of annual flows within the Colorado River Basin. (18) Equally distinct in many respects is the evolving structure of economies at the local, state, and regional levels. A similar perspective applies to advancements in scientific knowledge and technology in fields like climatology, ecology, geography, and hydrology. So too have societal values changed over the past century of U.S. history. We think differently (albeit diversely) about how water ought to be used--both with regard to competing water uses and users. (19) To what extent is the Law of the River responsive to the distinct conditions and values of contemporary times? Conversely, to what extent is it disconnected from contemporary circumstances? The perceived adequacy of Colorado River governance hinges on the varied answers given to these questions.
Whether pursued by the CRGI or similar entities, any inquiries into the existing state of Colorado River governance necessarily run up against the document positioned as the cornerstone of the Law of the River: the Colorado River Compact. (20) Forged in the spirit of cooperative federalism in 1922, (21) the Compact establishes an apportionment scheme that controls how water is allocated within and adjacent to the Colorado River Basin, a vast drainage area encompassing portions of seven western states--Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming--and two states in northwestern Mexico--Baja California and Sonora. (22) Without delving into the details of the Compact's apportionment scheme, suffice it to say that much like a constitution, (23) this scheme serves as the foundation of the Law of the River. The Compact constructs the framework through which Colorado River governance occurs.
Should the Colorado River Compact be exempted from the ongoing examination currently underway with regard to Colorado River governance? Is it beyond scrutiny based on (among other factors) the settled expectations it has engendered among the sovereigns and water users dependent on the flows of the Colorado River? (24) No doubt the lives and livelihoods of more than 30 million people are implicated by these questions. (25) They hold significance for all quarters within and adjacent to the Colorado River Basin: the cities, farming and ranching communities, Indian tribes, recreational areas, and the river and landscape themselves. Yet the salience of these questions nonetheless requires they be treated as more than just rhetorical ones. The Compact cannot and should not be left out of ongoing dialogue about the future of Colorado River governance. It is founded on a basic commitment to fairness in water allocation--"equitable apportionment." (26) Pressing concerns regarding the Compact's ability to fulfill this commitment in contemporary times should not be repressed in public discourse. They should be vetted openly and candidly. It is better to know where things stand with the Compact--even if that spot is a tight one that requires the utmost ingenuity and fair-mindedness going forward.
The work of the CRGI has proceeded from this vantage point since its inception in early 2010. This Article synthesizes a good deal of this work in order to address a basic question foreshadowed in the previous paragraph: Does the Colorado River Compact fulfill its commitment to equity? To be clear, we view this commitment as a venerable one, and we wholeheartedly wish to see the Compact succeed in this regard. A critical step in achieving this success, however, is to "face the music"--that is, to carefully consider the existing makeup of the Compact's apportionment scheme, including conflicting interpretations of its key terms, in relation to current and projected future hydrological conditions in the Colorado River Basin. This inquiry provides much food for thought about the Compact's equity, including identifying several issues to which attention would be well paid if the Compact indeed is to effect an equitable apportionment. Our overarching goal in this Article is to prompt engagement with these issues.
With this goal in mind, we have broken the Article into four main Parts. Part II lays a foundation. It highlights the express commitment to equity in the Compact's text and provides overviews of the Compact's apportionment scheme and the governance structure devised for it. Part III then takes a close look at the meaning of "equity" as a norm in the context of water allocation. It identifies a handful of principles associated with the norm, grouping these principles' into two broad categories based on whether they involve "substantive equity" or "procedural equity." With these principles as a backdrop, Part IV provides a contemporary perspective on 1) water supply and demand conditions in the Colorado River Basin, and 2) major interpretative disputes looming over key terms framing the Compact's apportionment scheme. Part V offers our views on three significant equityrelated issues stemming from the challenging reconciliation of the Compact's apportionment scheme (again, including interpretive conflicts related to it) with current and projected future hydrological conditions in the basin. We call for these equity-related concerns to be addressed in ongoing dialogue about the future of Colorado River governance. The spirit of the Compact depends on it.
II. "EQUITABLE DIVISION AND APPORTIONMENT" VIA THE COMPACT
Emerging out of negotiations in 1922 involving representatives from the federal government and the seven western states with portions of territory within the Colorado River Basin, (27) the apportionment scheme established by the Colorado River Compact constitutes the framework through which water is allocated within and adjacent to the basin. (28) This framework underlies an array of subsequent components of the Law of the River put into place both to address allocation-related matters left open by the scheme and to provide for the infrastructure, and the operation thereof, needed to implement it. Taken together, the Compact's apportionment scheme and the body of laws erected atop it--e.g., the U.S.-Mexico Treaty of 1944, (29) the Upper Colorado River Basin Compact (Upper Basin Compact), (30) and the Arizona v. California Decree (31)--all comprise an integrated regime for apportioning the use of water from the Colorado Raver System. (32) A basic sense of the makeup of the Compact's apportionment scheme is essential to a broader appreciation of this integrated regime--and, of course, goes to the heart of this Article.
This Part sketches out the contours of the Compact's apportionment scheme. After highlighting the Compact's textual references to equity in the first section, the remainder of the Part delves into the specific features of the scheme. The second section offers general descriptions of the entitlements conferred to the Upper and Lower Basins and related flow obligations imposed by the Compact. In turn, the third section provides a brief account of the governance structure applicable to the scheme, drawing attention to the absence of an interstate commission or, comparable formal entity, responsible for implementing it.
A. The Spirit of Equity
Our interest in examining the Compact's apportionment scheme in relation to the norm of equity in this Article is partly a matter of methodology. As detailed below in Part III, the norm of equity is well-suited for this purpose because it allows for consideration of diverse, and often competing, factors associated with the makeup of water allocation regimes. (33) It provides an umbrella framework within which these factors can be considered alongside one another. A distinct rationale for focusing on equity in this piece, however, is purely textual and historical. The Compact expressly emphasizes equity in its provisions, and it is for this reason that we refer to the norm as the Compact's "spirit" in this section and elsewhere throughout the Article.
Article I of the Compact is the main provision where equity is addressed explicitly. This article sets forth the Compact's "major purposes." (34) Stated prominently and unequivocally, its "primary purpose" (35) is "to provide for the equitable division and apportionment of the use of the waters of the Colorado River System." (36) This text mirrors that of the federal legislation authorizing negotiation of the Compact, which conferred Congress's consent for the basin states "to negotiate and enter into a compact ... providing for an equitable division and apportionment ... of the water supply of the Colorado River and of the streams tributary thereto." (37) Also reflecting this text are the opening remarks of then-Secretary of Commerce Herbert Hoover, the federal representative who served as chairman of the interstate commission tasked with negotiating the Compact. Chairman Hoover noted that the commission had been established in order "to consider and if possible to agree upon a compact between the seven states of the Colorado River Basin, providing for an equitable division of the water supply of the Colorado River and its tributaries." (38) The Compact's apportionment scheme is expressly directed to this end in Article I. (39)
Notwithstanding its general (purposive) nature, Article I and the commitment to equity expressed therein should not be considered inconsequential--at least the article was not viewed in this light by Delph Carpenter, the influential commissioner for the State of Colorado at the Compact negotiations who is regarded as the "father" of the Compact. (40) Carpenter construed Article I as a guide to the Compact's meaning, expressing this viewpoint in an exchange at the negotiations concerning whether the article should be cut from a draft of the Compact. In line with a remark by chairman Hoover regarding the article's "psychological value," (41) Carpenter opposed this deletion, stating:
[I]f there is any question as to what the intent of the drafters of the compact was, they will turn to the article on "purposes" to try to find a guide to that intent.... It is not alone a preamble,--it is ... a declaration of principles. It is a guide to the intent of the framers, and as such it must be very, very carefully drafted in the final compact. (42)
Also reflecting an intention (albeit implicitly) that the Compact's apportionment scheme equitably allocate the use of water from the Colorado River System are several Compact provisions contemplating "further equitable apportionment" at a future date. This phrase initially appears after the statement of purposes in Article I, which provides that "[t]o these ends the Colorado River Basin is divided into two Basins, and an apportionment of the use of part of the water of the Colorado River System is made to each of them with the provision that further equitable apportionments may be made." (43) In turn, Article III sets forth the specific procedures through which such "[f]urther equitable apportionment of the beneficial uses of the waters of the Colorado River System" can be brought about. (44) Broadly speaking, these procedures call for appointment of federal and state representatives "whose duty it shall be to divide and apportion equitably between the Upper Basin and Lower Basin the beneficial use of the unapportioned water of the Colorado River System." (45)
Additional provisions illustrating an emphasis on equity vis-a-vis the Compact's apportionment scheme are discussed below in Part V. (46) In contrast to the express references to equity just noted in Articles I and III, these additional provisions do not include the terms "equitable," "equitably," or the like, although their focus on equity seems plain--at least as we conceive of the norm in Part III.
It should be noted that the Compact's incorporation of the term "equitable apportionment" was not without historical precedent. Two decades before compact negotiations began in 1922, the Supreme Court acted pursuant to its original jurisdiction under Article III, Section 2 of the U.S. Constitution (47) and announced its authority to engage in equitable apportionment of the use of interstate rivers. (48) A seminal case decided by the Supreme Court in this area, Wyoming v. Colorado, (49) played a key role in spurring on the compact negotiations. (50) Thus, although they had not previously been used to resolve interstate water disputes in the United States, (51) compacts were understood as one of two methods for equitably apportioning interstate rivers (the other being Supreme Court litigation) at the time of the compact negotiations. (52)
Also worth mentioning in passing is the fact that the Compact is not alone among major components of the Law of the River in its express references to equity. Mirroring the purposive statement in Article I of the Compact is Article I of the Upper Basin Compact. This article identifies the Upper Basin Compact's first purpose as "to provide for the equitable division and apportionment of the use of the waters of the Colorado River System, the use of which was apportioned in perpetuity to the Upper Basin by the Colorado River Compact." (53)
B. Apportionment Scheme
Notwithstanding the light shed on the purposes of the Colorado River Compact by the equity-related provisions discussed above--at least from the viewpoints of Delph Carpenter and like-minded others--these provisions reveal little about the specific features of the Compact's apportionment scheme. (54) Article III contains the vast majority of provisions defining this scheme. These provisions incorporate various definitions set forth in Article II. They likewise dovetail with an important provision in Article VIII. As outlined in this section, a relatively quick study of the Compact's apportionment scheme can be made by walking through paragraphs (a) through (e) of Article III and then turning briefly to Article VIII. (55)
Article III(a) and (b) set forth entitlements for the "Upper Basin" and "Lower Basin." Article III(a) apportions "from the Colorado River System in perpetuity to the Upper Basin and to the Lower Basin respectively the exclusive beneficial consumptive use of 7,500,000 acre feet of water per annum." (56) In turn, Article III(b) augments the Lower Basin's entitlement in Article III(a) by providing that, "[i]n addition to the apportionment in paragraph (a) the Lower Basin is hereby given the right to increase its beneficial consumptive use of such waters by one million acre feet per annum." (57) Taken together, these two provisions entitle the Upper and Lower Basins to use 7.5 and 8.5 million acre-feet (mar) of water per year, respectively, from the Colorado River System--16.0 maf in total. (58) One acre-foot equals 325,851 gallons of water. (59)
As is evident from the quoted text, Article III(a) and (b) contain several operative terms that need to be examined closely. Two of these terms bear on the nature of the entitlements conferred by these provisions. Of critical importance in this vein is "Colorado River System," which is defined as "that portion of the Colorado River and its tributaries within the United States of America." (60) Also significant is "beneficial consumptive use"--a term left undefined by the Compact and subject to competing definitions in the Upper and Lower Basins. (61)
Alongside these two terms are the definitions given for the entities to which Article III(a) and (b) confer entitlements--namely, the "Upper Basin" and "Lower Basin." (62) The former refers to:
[T]hose parts of the States of Arizona, Colorado, New Mexico, Utah and Wyoming within and from which waters naturally drain into the Colorado River System above Lee Ferry, and also all parts of said States located [outside] the drainage area of the Colorado River System ... beneficially served by waters diverted from the System above Lee Ferry. (63)
The latter is defined similarly, referring to:
[T]hose parts of the States of Arizona, California, Nevada, New Mexico and Utah within and from which waters naturally drain into the Colorado River System below Lee Ferry, and also all parts of said States located [outside] the drainage area of the Colorado River System ... beneficially served by waters diverted from the System below Lee Ferry. (64)
Notably, these definitions contrast with those provided for the "States of the Upper Division" ("Colorado, New Mexico, Utah, and Wyoming") (65) and the "States of the Lower Division" ("Arizona, California, and Nevada"), (66) as these terms appear in Article III(c) and (d).
Whereas Article III(a) and (b) both address entitlements, Article III(c) and (d) share a common focus on flow obligations. Article III(c) is concerned with flow obligations to Mexico based on the U.S.-Mexico Treaty of 1944. (67) This treaty entitles Mexico to use 1.5 maf of water per year from the Colorado River. (68) Article III(c) provides that this water "shall be supplied first from the waters which are surplus over and above the aggregate of the quantities specified in [Article III(a) and (b)]." (69) In turn,
[I]f such surplus shall prove insufficient for this purpose, then, the burden of such deficiency shall be equally borne by the Upper Basin and the Lower Basin, and whenever necessary the States of the Upper Division shall deliver at Lee Ferry water to supply one-half of the deficiency so recognized in addition to that provided in [Article III(d)]. (70)
As just referenced in the last clause of Article III(c), the flow obligation imposed by Article III(d) applies to the states of Upper Division, providing that these states "will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre feet for any period of ten consecutive years reckoned in continuing progressive series." (71)
Appearing beneath the provisions conferring entitlements in Article III(a) and (b), and those prescribing flow obligations in Article III(c) and (d), is a fifth key paragraph--Article III(e). It sets forth an important condition applicable to relations between the Upper Division and Lower Division states, providing that the "States of the Upper Division shall not withhold water, and the States of the Lower Division shall not require the delivery of water, which cannot reasonably be applied to domestic and agricultural uses." (72) "Domestic use" is defined liberally to encompass "the use of water for household, stock, municipal, mining, milling, industrial and other like purposes," excluding "the generation of electrical power." (73)
The foregoing five paragraphs of Article III--including the definitions incorporated therein from Article II--constitute the foundational provisions of the Compact's apportionment scheme. However, Article VIII contains an important proviso: "Present perfected rights to the beneficial use of waters of the Colorado River System are unimpaired by this compact." (74) Like the term "beneficial consumptive use" in Article III(a) and (b), the Compact does not define "present perfected rights" as it appears in Article VIII, and the term is construed differently in the Upper and Lower Basins. The essence of the distinction concerns the specific date used to determine whether an entitlement (water right) constitutes a "present perfected right"--the date of the Compact's signing (November 24, 1922) or the date of its entry into force (June 25, 1929). (75)
The provisions surveyed throughout this section have been parsed out in a multitude of ways over roughly the past century of the Compact's history. Several of the most salient constructions are highlighted below in Part IV in the overview of interpretative disagreements between the Upper and Lower Basins. A good deal of ground remains to be covered before addressing these competing interpretations, however, including a brief discussion of the governance structure (or lack thereof) established for the Compact's apportionment scheme.
C. Governance Structure
Perhaps the key point to note with regard to the governance structure created by the Colorado River Compact is that an interstate commission (or comparable formal governance entity) has not been created to implement the apportionment scheme. (76) Governance entities do exist for other key components of the Law of the River. The International Water and Boundary Commission administers the U.S.-Mexico Treaty of 1944, (77) engaging in measurement and reporting activities associated with flow conditions and deliveries of treaty water. (78) The Upper Colorado River Commission performs similar functions with respect to the apportionment scheme established by the Upper Basin Compact. (79) Acting on behalf of the Secretary of the Interior, the Bureau of Reclamation likewise is tasked with an array of responsibilities stemming from the allocation scheme set forth in the Arizona v. California Decree governing use of water from the Colorado River mainstem by the Lower Division states. (80) Notwithstanding the importance of these entities in their respective domains, however, the joint federal-state commission empanelled to negotiate the Colorado River Compact--the Colorado River Commission--disbanded after the Compact's formation in 1922. (81) A permanent interstate commission, or similar basinwide entity, has not since been established. (82)
Despite the absence of a permanent Colorado River Commission, several provisions of the Compact are nonetheless notable based on their treatment of governance-related matters. Article VI generally addresses dispute resolution in this vein. It contemplates the appointment of commissioners empowered "to consider and adjust [any] claim or controversy" arising between the basin states concerning "the meaning or performance of any of the terms of this compact" and "the allocation of burdens incident to the performance of any article of this compact or the delivery of waters as herein provided." (83) The resolutions reached via this process are subject to ratification by the relevant state legislatures, and the process is not intended to supplant other available methods of dispute resolution (legislative or judicial). (84)
Of a similar but more forward-looking nature are the provisions identified above providing for "further equitable apportionment" in Article III(f) and (g). These provisions allow for such apportionment "of the beneficial uses of the waters of the Colorado River System unapportioned by [Article III(a), (b), and (c)]... at any time after October first, 1963, if and when either Basin shall have reached its total beneficial consumptive use as set out in [Article III(a) and (b)]." (85) As noted above, the process prescribed for this apportionment generally entails the appointment of federal and state representatives "whose duty it shall be to divide and apportion equitably between the Upper Basin and Lower Basin the beneficial use of the unapportioned water." (86)
Also worth noting alongside the measures outlined in Articles III and VI are several provisions in Article V generally addressing the collection and dissemination of hydrological data for the Colorado River Basin. These provisions call for cooperation among state water resource officials and the "directors" of the U.S. Bureau of Reclamation and U.S. Geological Survey with regard to the "flow, appropriation, consumption, and use of water in the Colorado River Basin" and "the annual flow of the Colorado River at Lee Ferry." (87)
Turning to the next Part of our discussion, both the substantive terms of the Compact's apportionment scheme fleshed out in the previous section, and the processes associated with the governance structure devised for this scheme touched on here, implicate the norm identified at the outset as the spirit of the Compact--"equity." What considerations come into play when assessing the "equity" of water allocation regimes--the Compact's and otherwise? How do these factors relate with one another? Are they reconcilable in some way? To what extent do they vary across time? We grapple with these and related questions below.
III. ON "EQUITY"
Our interest in considering the equity of the Compact's apportionment scheme undoubtedly would be a fool's errand without some conception of what "equity" looks like as a norm. Although the previous Part offered a fair amount of information about the apportionment scheme itself--including the Compact's textual commitment to "equitable division and apportiomnent" (88)--it shed virtually no light on our sense of the norm's precise meaning. This Part takes up that critical task. After discussing the contextual nature of equity in an initial section, we consider a handful of principles associated with the norm in two subsequent sections. These principles are organized into distinct categories based on whether they relate to what we have termed "substantive equity" or "procedural equity." We subsequently rely on these principles to frame the discussion below in Part V addressing several equity-based concerns related to the existing makeup of the Compact's apportionment scheme.
"Equity" is commonly regarded as being synonymous with fairness, (89) but this broad equation lacks the specificity needed to enable us to use equity as a lens for thinking about the Compact's apportionment scheme in a meaningful way. What exactly does it mean to be "fair" in the context of water allocation? This question pervades water law doctrine (90) and academic scholarship. (91) It is important on a number of levels. Among other things, apportionment schemes composed or implemented in ways perceived as unfair promise to cause friction among favored and marginalized water users, undermine the legitimacy of legal and political institutions, and obstruct the development of progressive water laws and policies. (92) The Compact actually attests to these dynamics in Article I, listing as major purposes below its threshold commitment to "equitable division and apportionment" both "to promote interstate comity" and "to remove causes of present and future controversies." (93) To accomplish these and similar goals, what basic ideas of fairness need to be taken into account vis-a-vis these schemes? As alluded to above, numerous factors potentially bear on this question.
We attempt to bring clarity to the meaning of "equity" in the following two sections by focusing on a handful of principles associated with the norm. Before turning to these equity-related principles, however, a couple of comments about the general nature of the norm need to be made. The overarching point we wish to highlight is that context plays a pivotal role in people's assessments of the equity of water allocation schemes. Equity is an inherently contextual norm. The perceived fairness or unfairness of an apportionment scheme depends upon the particular circumstances associated with the scheme at a given point in time. (94)
This core point regarding the contextual nature of equity really speaks to two things. First, thinking about the makeup of apportionment schemes from the perspective of equity involves taking stock of the full scope of values associated with the diverse water users and uses governed by the schemes (i.e., the total circumstances). (95) Offsetting factors always come into play, and it is unrealistic to expect these factors to be reconciled in a perfect way. (96) Second, change is a constant, and it is problematic to assume that prevailing views about the equity of apportionment schemes in one historical context will continue to hold sway indefinitely. Even the most equitable scheme devised in one setting may be rendered inequitable by changed circumstances. (97) In sum, "equity" is defined by context, which speaks to the diversity of values affected by water allocation schemes and the variation in these values across time.
Having equated "equity" generally with fairness and drawn attention to its contextual nature above, the remainder of this Part examines a handful of principles that flesh out our conception of the norm's meaning. These principles can be thought of as constituent parts of the norm. They account for commonsensical considerations that come into play when thinking about whether water allocation schemes are composed and implemented in a fair manner. Some of the principles relate to the substantive terms of these schemes--e.g., the scope and types of entitlements held by water users and the relative priorities of these entitlements. We use the term "substantive equity" to refer to this category of principles. (98) In contrast, other principles focus on the governance structures for apportionment schemes, including whether adequate processes exist for implementing these schemes in a diligent, participatory, and transparent way. This latter group of principles falls into the category of "procedural equity." (99)
Taken together, the principles in both of these categories are intended to offer a broad conception of "equity" useful for thinking about the makeup of the Compact's apportionment scheme. To be clear, we do not make an originalist claim in this regard. Our conception of equity is not intended to track precisely the conceptions reflected in provisions of the Compact--those in Article I, Article III, or otherwise. Although we discuss several of these provisions in Part V in relation to our conception of the norm, (100) we do not claim our conception is fully synonymous with how the Compact commissioners conceived of equity and sought to craft the Compact's apportionment scheme around it. (101) No doubt there was variation in this regard. In a similar respect, although we frame the principles below around the norm of equity, we acknowledge that they involve considerations worth taking into account in a freestanding way--that is, irrespective of their connection to equity as an umbrella norm. A final caveat: We have no delusions about treating the norm of equity exhaustively here. The principles below capture equity-related considerations that resonate with us based on our analysis of the Compact's apportionment scheme, but other relevant considerations and associated principles undoubtedly exist.
With these clarifications in mind, we proceed through the two categories of principles just identified--those related to substantive equity and procedural equity. Relying heavily on seminal academic scholarship addressing equity in the context of water law and policy, our survey of these principles involves providing general descriptions of their respective meanings. In turn, we discuss specific provisions of the Compact (and other components of the Law of the River) that illustrate the importance of, and tensions between, these principles below in Part V. (102)
1. Substantive Equity
Thinking initially about the substantive equity of apportionment schemes--which generally concerns the definition, allocation, and relative priorities of entitlements--four key principles are worth considering: 1) reciprocity, 2) fidelity, 3) reliability, and 4) flexibility.
At its core, the principle of reciprocity (103) is based on the notion of distributional fairness. (104) Apportionment schemes should be even-handed in how they define entitlements in water resources (permitted types and amounts of water uses), allocate these entitlements among different types of water users, and establish the relative priorities of the entitlements. (105) Apportionment schemes should be composed to avoid enabling water users to unfairly utilize (or monopolize) (106) water resources on any of these bases--for example, by conferring excessively large entitlements to water users, forbidding water users from holding entitlements for certain purposes without reasonable justification, (107) or prioritizing entitlements so as to unduly insulate water users from fluctuations in water supply conditions. (108) Subsumed within this principle are considerations of efficiency. Apportionment schemes should mandate water conservation by entitlement holders (109)--expressing this mandate clearly in the terms of entitlements--and likewise should be responsive to the relative economic value of competing water uses.
Existing in some degree of tension with the principle of reciprocity is the principle of fidelity, (110) which essentially concerns honoring commitments made to entitlement holders. The general notion underlying this principle is that apportionment schemes should fulfill promises made to water users concerning fundamental aspects of entitlements--e.g., their existence, definition, and allocation priority. Involuntary reallocation of entitlements and/or deviation from their key terms should not be considered inequitable per se under this principle. However, given their gravity, such measures are justified only if compelling circumstances warrant them (based on counterbalancing equities) (111) and adequate remedial measures have been put into place, including clear, reasonable timelines and fair compensation as appropriate. (112)
The principle of fidelity dovetails with the principle of reliability. As reflected plainly in its title, the gist of this principle is that apportionment schemes should be composed so as to enable water users to rely on their entitlements. (113) Entitlements should be defined with sufficient specificity to provide water users with a clear sense of the types and amounts of water use permitted by the entitlements. Allocation rules likewise should enable entitlement holders to foresee to a reasonable degree the extent to which they will be able to use water in different circumstances--specifically, in conjunction with fluctuations in water supplies. Beyond providing clarity in both of these respects, apportionment schemes should strive to ensure that water resources will indeed be available to fulfill entitlements held by water users.
Cutting against the principle of reliability--to greater or lesser extents--is the principle of flexibility, (114) which directly reflects the notion that equity is defined by context as discussed above. The essence of this principle is that apportionment schemes should contain measures to facilitate reallocation of water resources among entitlement holders based on changes in circumstances (both short and long term). Such changes may come in a variety of forms, including: 1) fluctuation in climatic and hydrologic conditions, 2) advancements in scientific knowledge and technology, 3) diversification and restructuring of economic systems, and 4) reprioritization of societal values. Regardless of the specific type of changes involved, the core point is that apportionment schemes should be composed so as to enable them to stay abreast of these changes, rather than to grow antiquated. Apportionment schemes should not be beholden to distributive arrangements divorced from contemporary conditions and values. (115)
2. Procedural Equity
Moving on to "procedural equity" (116)--that is, equity associated with the processes and composition of governance structures for apportionment schemes--at least three important principles fall within this category: 1) inclusivity, 2) diligence, and 3) transparency.
The essence of the principle of inclusivity is that governance structures devised for apportionment schemes should be composed to provide opportunities for the full scope of parties whose interests are affected by the schemes to participate meaningfully in implementation processes. (117) These parties may include sovereigns, such as federal, state, or tribal governments; water users (i.e., those with interests in consumptive and nonconsumptive water uses); and members of the general public. Similar to the principle of reciprocity discussed above, (118) the principle of inclusivity entails recognizing the interdependence of these parties' diverse interests and crafting the governance structure so as to allow for even-handed participation by them. Collaboration is viewed as a positive thing under this principle.
Potentially--though not necessarily--running contrary to the principle of inclusivity is the principle of diligence, which generally accounts for the idea that adequate measures need to be put into place in order to ensure that the substantive terms of apportionment schemes are implemented fully and accurately--i.e., that water users abide by the terms of their entitlements, allocation priorities are adhered to, and so forth. Governance structures need to be composed toward this end, incorporating and standardizing monitoring processes, reporting requirements, accounting methods, and similar measures. This principle stems from the perspective that the substantive terms of apportionment schemes should be honored--more specifically, that the mandates embodied within apportionment schemes constitute shared commitments and that governance structures need to be tailored accordingly. (119)
Issues concerning a lack of diligence in the implementation of apportionment schemes sometimes relate closely to issues of transparency, with the latter type of issues speaking volumes about the importance of openness in governance processes. (120) The principle of transparency stems from this vantage point. Its core tenet is that governance structures should be composed so as to promote transparency with respect to the processes used for implementing the substantive terms of apportionment schemes. (121) These processes should be structured in an open and straightforward manner so as to invite engagement by parties whose interests are affected by the schemes. Rationales supporting decisions and attendant actions related to implementation processes should be communicated in explicit, comprehensible terms. These rationales likewise should be responsive to the full scope of viewpoints expressed on relevant matters.
To what extent does the Colorado River Compact realize the spirit of "equity" as that norm is broken down in this section--both with respect to the substantive terms of the apportionment scheme and the governance structure (or lack thereof) devised for it? Different people most certainly will come to different conclusions about this question. We offer our thoughts on it below. Before doing so, however, much more context is needed--particularly, a close look at water supply and demand conditions in the Colorado River Basin and important conflicting interpretations of the Compact implicated by these conditions.
IV. A CONTEMPORARY PERSPECTIVE ON THE RIVER AND COMPACT
Although a variety of legal and policy challenges currently face Colorado River governance, the core issue of overuse (facilitated by prior overallocation) directly or indirectly underlies virtually all of these challenges. As highlighted in the first section below, the trend in recent years has been for water demands to exceed water supplies in the Colorado River Basin, a pattern projected to persist absent changes in the status quo. (122) Implicated by this supply-demand imbalance are a host of longstanding disputes between the Upper and Lower Basins involving conflicting interpretations of key provisions framing the Compact's apportionment scheme. Several such disputes are surveyed in the second section of this Part. The supply-demand imbalance promises to aggravate these historic disagreements--perhaps ultimately requiring their resolution, via Supreme Court litigation or otherwise. All told, current and projected water supply limitations in the basin intertwine inextricably with these interpretive disputes to raise serious concerns about the extent to which the Compact fulfills its commitment to equity. We offer our perspectives on this subject in Part V.
A. A River No More?
Viewed from an ecological perspective, the Colorado River has been aptly described as "a river no more," (123) with significant flows not having reached the river's delta at the Gulf of California consistently for half a century. (124) This pattern correlates with a steady trend of increasing demands for water from the Colorado River System during roughly the past 100 years. (125) Projected to continue in the future absent significant reforms, (126) this trend runs in the opposite direction of water supply projections for the basin over the next 50 years, thereby posing the thorny issue of how to bring water supply and demand levels into balance. (127) This section provides an overview of important information about the basin's hydrology related to the existing and projected future imbalances between water supplies and demands, paying particular attention to information bearing on the interpretive disputes discussed in the following section.
According to an ongoing study examining water supply and demand levels in the Colorado River Basin being conducted by the U.S. Bureau of Reclamation, the average annual natural inflow into the basin--which represents basinwide water supply--has been 16.4 maf during the past 100 years. (128) Notably, this annual average does not account for inflows from the primary tributary in the Lower Basin, the Gila River. (129) Broadly speaking, the historical record shows considerable variation in the amounts of natural inflow into the basin both annually and across the past century, (130) with higher flows observed throughout the period surrounding formation of the Colorado River Compact in 1922. (131) As is typical with many river systems in the West, the water supply in the basin depends heavily on snowmelt from high-elevation areas in the Upper Basin. (132) Roughly 92% of the natural flow into the Colorado River is contributed by runoff upstream of Lees Ferry, Arizona, (133) which is located roughly two miles upstream of the dividing point between the Upper and Lower Basins under the Compact--a location referred to as "Lee Ferry." (134)
Flow levels at Lees Ferry are particularly important due to the fact that Lee Ferry is the point at which the Upper Division states (again, Colorado, New Mexico, Utah, and Wyoming) are responsible for fulfilling their flow obligations prescribed by Article III(c) and (d) of the Compact. (135) As has been recognized for several decades, the commissioners who negotiated the Compact estimated annual flows at Lees Ferry well above those subsequently observed in the historical record and derived from tree ring studies (paleo reconstructions). (136) These paleo reconstructions--some of which extend back more than 1,200 years--estimate average flows at Lees Ferry of 13.0 maf to 14.7 maf per year. (137) The 100-year historical record places these flows at roughly 15.0 maf annually. (138) It is worth highlighting that the period from 2000 to 2010 represents the lowest 11-year average of annual flows at Lees Ferry in recorded history--12.1 maf per year, approximately 20% below the average from the historical record (139)--although paleo reconstructions show droughts of this severity or greater have occurred in the past. (140)
Looking forward, the vast majority of climate change studies project declines in annual flows at Lees Ferry of 10% to 30% by the middle of the twenty-first century, (141) with estimates ranging from 6% to 45% overall. (142) Assuming flow levels of 15.0 maf based on the historical record, declines of 10% to 30% translate to average Lees Ferry flows of 13.5 maf to 10.5 maf annually. (143) Relying on the range of annual flow levels from paleo reconstructions--again, 13.0 maf to 14.7 maf (144)--the corresponding range of potential average Lees Ferry flows is 9.1 maf (13.0 maf reduced by 30%) to 13.23 maf (14.7 maf reduced by 10%). Although their precise amounts remain to be seen, these flow reductions are expected to be accompanied by increases in the frequency and duration of droughts and also changes in precipitation patterns involving reduced late-season snowpack and earlier spring runoff. (145)
Turning to water demands, the general trend in the Colorado River Basin over the past decade has been for water use levels to exceed water supply levels, with the demand and supply line averages intersecting for the first time in the late 1990s. (146) According to the U.S. Bureau of Reclamation, water use in the basin increased by 23% between 1971 and 1999, from approximately 13.0 maf to 16.0 maf. (147) Over this period, water use in the Upper Basin grew from approximately 3.0 maf to 3.3 maf, and water use in the Lower Basin grew from roughly 6.6 maf to 8.0 maf. (148) In conjunction with drought conditions over the past decade, water use in the basin decreased to around 15.0 maf as of 2008, including 3.8 maf of use in the Upper Basin and 7.6 maf of use in the Lower Basin. (149) Notably, none of these figures account for the use of water from the Gila River and other Lower Basin tributaries. (150)
An array of scenarios could emerge with respect to future water demands in the Colorado River Basin. (151) Factors influencing the scope of these demands include population growth; water-use efficiency in various sectors (agriculture, municipal, etc.); economic restructuring and diversification; energy portfolios and demands; water flow needs for environmental purposes (recreation, species and habitat protection, pollution control, etc.); and changes in societal values related to water use. (152) Overall, based on six scenarios currently being evaluated by the U.S. Bureau of Reclamation, annual water demands in the basin are projected to increase to between 18.1 maf and 20.4 maf by 2060. (153) Similar to the preceding figures, these figures do not account for water demands from the Gila River and other Lower Basin tributaries. (154) Excluding treaty water deliveries to Mexico, reservoir evaporation, and other losses, annual water demand is projected to grow to 6.0 maf in the Upper Basin and slightly above 10.0 maf in the Lower Basin under the highest-demand scenario. (155)
How does the water supply and demand information surveyed in this section square with the Compact's apportionment scheme? More specifically, how does the Compact call for allocating water from the Colorado River System in light of the foregoing hydrological conditions? These questions are misleading in that they suggest the Upper and Lower Basins share a common understanding of key provisions defining the Compact's apportionment scheme. In a number of respects, the opposite is true, as is revealed in the following section.
B. Cracks in the Foundation
Considering the duration and iterative nature of the Law of the River's evolution over roughly the past century, the emergence of divergent viewpoints on the meaning of, and relationships between, the nuanced laws accumulated throughout this process is perhaps unsurprising. A wide range of issues currently exists related to the construction and reconciliation of these laws, including several major issues involving conflicting interpretations of key provisions framing the Compact's apportionment scheme. We focus on four such issues in this section. All of these issues significantly influence how the Compact--depending upon how it is interpreted--calls for water to be allocated in and around the Colorado River Basin in light of current and projected future hydrological conditions. Our purpose in drawing attention to these issues is not to engage in full-fledged legal analyses of them but rather to consider how the allocation patterns stemming from the conflicting interpretations bear on the Compact's commitment to equity. Three of these issues relate to Article III(c) and the Upper and Lower Basins' flow obligations to Mexico. The fourth issue concerns Article III(d) and the flow obligation it imposes on the Upper Division states. We survey these issues in this section and then revisit them in Part V.
1. Flows to Mexico
Article III(c) is the longest of the five provisions in Article III that play key roles in shaping the Compact's apportionment scheme. Its length parallels the range of disputes rooted in its text. Broadly speaking, these disputes concern the respective obligations of the Upper and Lower Basins to contribute flows toward Mexico's 1.5 maf annual entitlement to Colorado River water established by the U.S.-Mexico Treaty of 1944. (156) Supplying these flows constitutes a national obligation generally regarded as the highest priority of the Law of the River. (157) At issue with regard to these flow contributions are three important matters examined below: 1) the status of water in the Lower Basin tributaries, 2) the method of determining the existence of "surplus" water, and 3) the coverage of channel losses in the Lower Basin. (158)
a. Lower Basin Tributaries
Tracing back to the Compact negotiations in 1922, (159) the critical issue of whether the Lower Basin tributaries are encompassed within the Compact's apportionment scheme is a politically charged one foreseeably requiring resolution in coming decades. To be clear, this issue has two dimensions. The first dimension, which is not our main focus here, concerns Article III(a) and (b). If the Lower Basin tributaries are subsumed within the Compact's apportionment scheme, then the use of water from these tributaries must be taken into account when assessing whether water use in the Lower Basin falls within or outside of the 8.5 maf entitlement set forth in these provisions. (160) We discuss equity-related concerns raised by this matter below in Part V. Turning to Article III(c), however, the second dimension of this issue involves whether water in the Lower Basin tributaries must be considered when determining whether "surplus" water exists to supply Mexico's treaty entitlement. As noted in Part II, Article III(c) calls for this treaty water to be "supplied first from the waters which are surplus over and above the aggregate of the quantities specified in [Article III(a) and (b)]." (161) Are the Lower Basin tributaries exempt from the Compact's apportionment scheme such that their water is overlooked when determining whether "surplus" water exists within the meaning of this provision? The Upper and Lower Basins' views on this issue are diametrically opposed.
The Lower Basin contends for exclusion of these tributaries from the Compact's apportionment scheme, an argument that may rely on the Supreme Court's holding in Arizona v. California for support. (162) In this historic case, the Court interpreted the Boulder Canyon Project Act as establishing an apportionment scheme governing water use from the Colorado River mainstem by Arizona, California, and Nevada, holding that the Lower Basin tributaries were not encompassed within this scheme. (163) Omitting the details of this holding and the associated apportionment scheme here, (164) this precedent may provide a basis for arguments favoring similar treatment of the Lower Basin tributaries under the Compact. In addition to affecting the scope of the Lower Basin's entitlement in Article III(a) and (b), these arguments, if successful, would control how the existence of "surplus" water would be determined under Article III(c). As identified above, Lower Basin tributary water would not be accounted for when determining whether surplus water "over and above the aggregate of the quantities specified in [Article III(a) and (b)]" (165) exists to satisfy Mexico's treaty entitlement.
The Upper Basin naturally takes the opposite position on this issue: The use of Lower Basin tributary water counts against the 8.5 maf entitlement in Article III(a) and (b), and this water likewise must be considered when determining whether "surplus" water exists to supply Mexico's treaty entitlement under Article III(c). (166) Among other arguments, the Upper Basin relies on the definition of "Colorado River System" in Article II(a) for support, emphasizing how this term encompasses "that portion of the Colorado River and its tributaries within the United States of America." (167) This term is expressly used in Article III(c). (168) It is also incorporated into Article III(a) and (b) in relation to the Upper and Lower Basins' entitlements. (169)
b. "Surplus" Water
The Lower Basin tributaries issue is not the only one involving conflicting views held by the Upper and Lower Basins about how the existence of "surplus" water is determined under Article III(e). The inclusion or exclusion of the Lower Basin tributaries from the Compact's apportionment scheme bears on the scope of water sources accounted for when making this determination. A related but distinct issue concerns the method by which the determination is made. (170) Is the existence of "surplus" water determined by assessing whether water exists over and above the individual amounts set forth in the Upper and Lower Basins' entitlements--7.5 maf and 8.5 maf, respectively? Or is the collective amount of water use authorized by these entitlements--16.0 maf--the relevant baseline for determining the existence of "surplus" water? These questions encapsulate the Upper and Lower Basins' competing positions on this issue.
Adopting the first position, the Upper Basin contends that "surplus" water consists of water over and above the 7.5 maf and 8.5 maf of use authorized by the Upper and Lower Basins' individual entitlements. (171) On this view, if water use in the Lower Basin exceeds 8.5 maf in a given year--accounting for use on the mainstem and its tributaries--then the water used in excess of this entitlement constitutes "surplus" for purposes of Article III(c). According to the Upper Basin, its obligation to contribute flows toward Mexico's treaty entitlement is relieved to the extent such "surplus" water exists. Thus, if water use in the Lower Basin is 10.0 maf in a given year, then the 1.5 maf of "surplus" water must be put toward Mexico's treaty entitlement, and the Upper Basin's obligation under Article III(c) must be relieved accordingly.
Rooted in the text of Article III(c), the Lower Basin's opposing argument contends that "surplus" water refers to water over and above the aggregate of the 7.5 maf and 8.5 maf of use authorized by the Upper and Lower Basins' entitlements--again, 16.0 maf. (172) Article III(c)'s express use of the term "aggregate" is pivotal to this interpretation. The relevant text provides that waters needed to satisfy Mexico's treaty entitlement "shall be supplied first from the waters which are surplus over and above the aggregate of the quantities specified in [Article III(a) and (b)]." (173) According to the Lower Basin, the Upper Basin's position entails reading the term "aggregate" out of this text--i.e., such that the provision calls for supplying treaty water to Mexico "first from the waters which are surplus over and above ... the quantities specified in [Article III(a) and (b)]." On the Lower Basin's view, if the supply of water in the Colorado River System in a given year exceeds 16.0 maf--excluding water in the Lower Basin tributaries--then water over and above that amount constitutes "surplus" within the meaning of Article III(c). If such "surplus" water does not exist (partially or fully), then the Upper Division states are responsible for contributing half of the flows needed to satisfy Mexico's treaty entitlement.
c. Channel Losses
A third contentious issue involving Article III(c) comes into play when "surplus" water is not available to supply Mexico's treaty entitlement--that is, in "deficiency" conditions. The relevant text within Article III(c) addressing the Upper and Lower Basins' obligations to contribute treaty flows in such conditions provides: "IT]he burden of such deficiency shall be equally borne by the Upper Basin and the Lower Basin, and whenever necessary the States of the Upper Division shall deliver at Lee Ferry water to supply one-half of the deficiency so recognized in addition to that provided in [Article III(d)]." (174) This text plainly calls for the Upper and Lower Basins to equally bear the Mexican treaty burden. What is less clear is whether treaty water deliveries required of the Upper Division states must account for channel losses in the Lower Basin (i.e., in conjunction with carriage of the water to the international border). Are the Upper Divisions states obligated to cover an equal portion of these losses? (175)
The Lower Basin answers this question in the affirmative. (176) In its view, Article III(c) obligates the Upper Division states to contribute not only one-half of the flows required to satisfy Mexico's 1.5 maf entitlement, but also one-half of the channel losses that occur as the treaty water moves from Lee Ferry to the designated points of delivery at the Mexican border. According to the Lower Basin, the treaty flow contribution required of the Upper Division states in any given year involving a deficiency encompasses both of these amounts.
Relying on the text of Article III(c), the Upper Basin takes the opposing stance, asserting that the Upper Division states are not obligated to cover half of the channel losses incurred when moving treaty water through the Lower Basin in deficiency conditions. (177) From the Upper Basin's perspective, Article III(c) only compels the Upper Division states to deliver one-half of the flows required to supply Mexico's treaty entitlement, and the delivery of this water at Lee Ferry constitutes satisfaction of this obligation. Critical to the Upper Basin's view is Article III(c)'s express designation of Lee Ferry as the delivery point for these flows: "the States of the Upper Division shall deliver at Lee Ferry water to supply one-half of the deficiency." (178) In accordance with the Upper Basin's view, the Upper Division states are responsible for covering channel losses associated with delivering treaty water per Article III(c) upstream of Lee Ferry, and the Lower Division states must follow suit downstream of this point.
2. Flows to the Lower Basin
The nature of the flow obligation imposed on the Upper Division states by Article III(d) constitutes yet another subject in relation to which the Upper and Lower Basins seemingly stand worlds apart. The text of this provision bears repeating here: "The States of the Upper Division will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre feet for any period of ten consecutive years reckoned in continuing progressive series...." (179) As discussed below in Part V, the way in which this text is interpreted significantly influences the way in which the Compact's apportionment scheme calls for allocating water in and around the Colorado River Basin under current and projected future hydrological conditions. Much hinges on the Upper and Lower Basins' competing views of this text. Does it prescribe a static, quantified delivery obligation that adheres irrespective of fluctuations in the basin's hydrology or relative levels of water use in the Upper and Lower Basins? This question reflects the crux of the Upper and Lower Basins' conflicting interpretations of Article III(d).
The Upper Basin answers the foregoing question with a resounding "no," maintaining that Article III(d) does not require the Upper Division states to deliver 75.0 maf of water at Lee Ferry every consecutive ten-year period irrespective of the conditions just noted. Emphasizing the use of the term "depleted" in Article III(d)--"[t]he States of the Upper Division will not cause the flow of the river at Lee Ferry to be depleted below" (180) the prescribed amount--the Upper Basin construes the provision as imposing a non-depletion obligation, not a delivery obligation. (181) From this perspective, the flow obligation of the Upper Division states apparently would be reduced in proportion to naturally-caused depletions of flows--e.g., due to climate change. In further support of its position, the Upper Basin construes the relationship between Article III(a) and (d) as such that the former provision takes precedence over the latter. (182)
A much different interpretation of Article III(d) is held by the Lower Basin, which views the provision as imposing a concrete delivery obligation. Regardless of fluctuations in average annual flows at Lee Ferry, and regardless of the relative amounts of water use in the Upper and Lower Basins vis-a-vis the Article III(a) and (b) entitlements, the Lower Basin contends that the Upper Division states are obligated to deliver 75.0 maf of water at Lee Ferry every consecutive ten-year period. (183) The use of the term "deplete" in Article III(d) does not change the nature of the flow obligation on this view. Nor is Article III(d) trumped by Article III(a). Such a construction overlooks the plausible possibility that the Upper Basin commissioners conceded to Article III(d) at the compact negotiations in order to cap the Lower Basin's entitlement via Article III(a) and (b) and to reserve the remaining water for Upper Basin development. (184) The unforeseen paucity of that remaining water assertedly does not alter the flow obligation imposed by Article III(d).
It remains to be seen whether the Upper Basin or Lower Basin would prevail if the interpretive issues covered in this section were resolved by the Supreme Court or in another forum. As noted, our purpose in canvassing these issues has not been to engage in detailed legal analyses aimed at forecasting probable litigation outcomes. Although the resolution of these issues--via litigation or otherwise--is critically important to the future of Colorado River governance, our interest again lies in considering how the Upper and Lower Basins' competing interpretations entail allocating water in light of current and projected future hydrological conditions in the Colorado River Basin. To what extent do these allocation patterns comport with the Compact's commitment to equity? We take up this question and related ones in the next Part.
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|Title Annotation:||I. Introduction through IV. A Contemporary Perspective on the River and Compact, p. 1157-1192|
|Author:||Robison, Jason A.; Kenney, Douglas S.|
|Date:||Sep 22, 2012|
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