Episode 206: The Colorado River Compact, Part II: Upper Basin, Lower Basin

If you look back, there are certain important, maybe seminal documents in the history of Arizona. The first that really strikes me is a tofer, the Treaty of Guadalupe Adalgo, and then the Guad simpurchase five years later, which is when Arizona was officially signed over to the United States. There is the Proclamation on February 14, 1862, which made Arizona a Confederate territory, which is also coupled a year later by another document, the Proclamation signed by Abraham Lincoln to make it a union territory. The reason for these being so important should be fairly obvious, including setting Arizona on its long path toward statehood. To these, you could also add a litany of others, including the Howl Code, which gave Arizona its first laws, the Enabling Act of 1910, which made it possible for Arizona to write its own Constitution, and then there's that very Constitution, which was finished the next year. And if you really want to have some fun, you could also name the Zimmerman Telegram from 1917, which tangentially involved Arizona, but pushed the whole nation toward entering World War I, and the Adverse Report of the Surveyor General from 1889, where James Addison Rivas was told he couldn't have the whole central part of the state to himself. Now, you could have a pretty lively debate over which these documents is the most important and most impactful in state history. I honestly couldn't say which document that would be, but I will say that on any short list of the most important pieces of paper for the history and future of the state, somewhere near the top would have to be the one signed in Santa Fe in 1922, which is where Arizona agreed to the basic framework for how it would share its water with its neighbors. I'm your host, David Rookhausen, and you are listening to AZ, the history of Arizona. Episode 206, the Colorado River Compact Part 2, Upper Basin, Lower Basin. Welcome back everyone. Last week, after two episodes that were admittedly just context, important and fascinating context, we finally got to the main event. The seven Colorado River Basin states finally gotten to a room together to hammer out an equitable compact to share the river, which was a very nice thought that only lasted four days before everyone realized that the meeting was basically a room full of sacred cows would nary a butcher in sight. After that everyone broke apart for a series of hearings held across the west, and some time to reee the ponder how they could move forward with this whole thing. But before we get into this week's episode, I do need to make a small correction that was pointed out to me by listener Jeremy R. When talking about Los Angeles slurping up the water from the Owens River, I said that stream flowed on the western side of the Sierra Nevada. However, he rightly pointed out that it actually is on the eastern side of the mountain range. Yes, my west east dyslexia strikes again, but I think the bigger point here is that the Los Angeles aqueduct scheme is even crazier because they had to bring that water through a mountain range. But thanks for pointing this out, Jeremy, and thanks for listening. Okay, let's get back to our main focus, which is the Colorado River Commission. Who right now are just a bunch of knowledgeable guys sitting around in their respective states thinking hard? At this point, the main sticklers were Colorado and Utah, who were unwilling to budge on anything that limited their rights in any way. And over the course of the spring and summer of 1922, other little controversies came along just to make things more complicated. One of those is what we talked about last week. George Maxwell's Quixotic Call to build the Arizona Highlight Canal. But while engineers and professionals of every striper laughing at Maxwell and his idea, another threat suddenly came from that great boogie man of the southwest, California. As I mentioned before, California desperately wanted its all American canal, one that would bring Colorado River water directly to them without having to deal with Mexico at all. And though it initially resisted, in the late 1910s, the state finally got religion on the fact that they had to buy into the Reclamation Services Boulder Canyon Dam idea to finally get their canal. Cut to 1922, where a California congressman named Phil Swing, who represented the Imperial Valley, watched suportedly, then optimistically, then disappointedly, as the Colorado River Commission after four days of deliberations and a month's worth of public hearings got nowhere. So he decided not to wait any longer. Teaming up with Hiram Johnson, the senior senator from California, on April 25, 1922, Swing introduced a bill into the House, and Johnson into the Senate, to just go ahead and build the Boulder Canyon Dam and the All American Canal already. This would be the first of the so-called Swing Johnson bills to call for these important projects, though the final bill would not pass until 1928. But the fact that they were introducing it now, while the question of water rights was still up in the air, sent everyone who wasn't a federal employee, or from California, into a tizzy. The upper basin states, ever vigilant against someone abridging their rights, were quick to condemn the bill. And surprise, surprise, Nevada and Arizona were not too happy about it either. W.S. Norville, the Arizona delegate to the Commission and the State Water Commissioner, complained loudly to Karl Hayden that quote, "The bill appears to view the whole situation from a California standpoint, and to entirely absorb Arizona and its rights to the river." What was worse was the fact that Arthur Davis at the Reclamation Service, and Herbert Hoover, both publicly came out in favor of the Swing Johnson bill, saying that what the river really needed right now was flood control and producing hydroelectricity, and that it wouldn't interfere with the Commission talks at all. And to his credit, Swing himself said he fully supported the eventual compact and that he would even incorporate it into his bill, if the Commission could come to a conclusion before Congress passed his legislation that is. And just as debate was ramping up on the Swing Johnson bill, the issue of Mexico reared its head again. That country to the south had been watching with trepidation as the Colorado River Commission had come together. Mexico had even petitioned for a seat at the table and to be included in studies and projects that would result from whatever the Commission decided. This request had been denied by the U.S. State Department, which said that this was an internal U.S. matter and Mexico definitely wasn't invited. While in early 1922, Mexico tried again to be added to the Commission, and this time Hoover shot them down, saying that this was a domestic consideration, and if they wanted to talk about the sharing of water between the two countries, they could always sign a treaty. This all may sound incredibly petty and parochial on the part of the U.S., and I agree that it is to an extent, but many were making the point that they wanted the domestic concerns about the river to be solved before they tried to solve international ones. Carl Hayden would say during committee hearings on the Swing Johnson bill, quote, "There is no need for haste in arriving at any adjustment with Mexico. We may ultimately treat with Mexico. But so far as I am concerned, I shall oppose any kind of agreement recognizing any kind of a Mexican water right in the Colorado River until it is definitely and finally determined that there is a surplus of water in that stream for which there is no possible use in the United States." So the debate about Mexico was swirling around, and would pretty much kill the first iteration of the Swing Johnson bill, when another bomb shell dropped. You will recall from two episodes ago, I talked about some of the lawsuits between states that were going through the Supreme Court. The first was Kansas V. Colorado in 1907, where the high court merely set the precedent that state water disputes should be settled in a manner where both sides got their fair share. But the second was Wyoming V. Colorado, where Wyoming was arguing that it wasn't fair for Colorado to take water from the Laramy River into another basin and ask that the court apply prior appropriation. While Colorado stuck to it, this is our water we could do whatever we want, argument. The case had been going since 1911, with a second round of arguments having gone before the justices in 1918. Well, on June 5, 1922, the court finally handed down its long awaited decision. While agreeing that Colorado had the right to move water from one basin to another, the court denied the state's claims of absolute rights to all the water within its borders, declaring that untenable. And since Wyoming and Colorado both thought prior appropriation was such a great idea inside their own borders, the court saw no reason not to apply to interstate dealings as well. The lower basin states, even Mexico, were elated to hear this news because it meant that the upper basin states couldn't just claim the water came from them, so they didn't have to negotiate their rights at all. Norville summed it up nicely when he wrote, quote, "This decision will be a very great benefit to us in the lower states and should assist us very greatly in reaching an agreement with the Northern states," end quote. As you might expect, the upper states were as mortified as the lower states were elated. Love Carpenter, the lawyer from Colorado who had proposed the idea for the compact in the first place, was as worried as anyone that this decision left the upper basin badly exposed. Put simply, if California could show prior appropriation or the lower basin states got their projects approved first, and hey, the swing Johnson Bell has already been introduced into Congress, then they didn't need a compact anymore. So, though they were loathe to say it, the upper basin states had to return to the table, and negotiate. Again, we must turn to Carpenter, who had gunned everyone into this, but was also one of the major pro-upper-basin development stumbling blocks that kept an agreement from being reached. Faced with the prospect of the lower basin, and California in particular, just blindly marching ahead with their own projects without regard to the upper basin, he started looking at other solutions. According to historian Norris Hunley Jr., one of the solutions he did consider was something that had been originally proposed by Norville in Arizona. Working in concert with Richard E. Sloan, the former territorial governor, Norville had proposed an agreement whereupon everyone could build whatever they wanted for 20, maybe 30 years, and at the end of that time, all of those projects would be recognized, with rights thereafter being based on the doctrine of prior appropriation. As part of that, Utah and Colorado would both agree to some limitation on the amount of water they transferred from the Colorado River basin to other basins. However, this idea never went anywhere, and Carpenter eventually abandoned it in favor of another idea that he started to circulate in August 1922. If everyone was getting tripped up on how much water each state was due, then why not bypass that question entirely? It was obvious that no one had enough detail information to make definite water allocations for each state, so Carpenter decided to not deal with states at all, but treat the Colorado River much as I have for our entire time talking about it, that is, as an upper basin and a lower basin. While each state had its own eccentricities, the major disagreements boiled down to people being in one of those two camps. So if Carpenter could work out an equitable agreement between these two groups, then it would bypass the thorny issue of every state vying for its own self-interest. Now Carpenter is usually given the credit for this idea, but it should be pointed out that it's not new, even for him. He had thought about it going back to the Denver meeting of the League of the Southwest back in August 1920. Davis, with the Reclamation Service, had also made a similar proposal during the public hearings in Los Angeles earlier in 1922, and Hoover had floated the idea while at the public caring in Salt Lake City. To his credit, Carpenter would tell people that he didn't have a copyright on the idea, but that he's just the one that really ran with it. A natural question that may present itself, or maybe not depending on your curiosity and or knowledge about the whole situation, is where exactly does one draw the line between the upper and lower basin? Up to this point, I've just been talking about them as blocks of states, Wyoming, Utah, Colorado, and New Mexico in the upper basin, and Arizona, Nevada, and California in the lower basin. And really that's what it shook out to be in the end. However, Carpenter's proposal mostly ignored state lines. The spot that he decided, separated upper and lower, was an old river crossing upstream from the Grand Canyon, downstream from Glen Canyon, near where the prior river joins to Colorado. Otherwise known as Lee's Ferry. If you need a refresher on the history and significance of Lee's Ferry, I highly suggest re-listening to episode 79. I also throw out here that we are still five years away from the start of construction on Navajo Bridge, so it was still an active ferry at this point. So according to Carpenter, the upper basin would include Wyoming, Colorado, and parts of Utah, New Mexico, and Arizona, while the lower basin would include California, Nevada, and, again, parts of Utah, New Mexico, and Arizona. Like I said, though, in reality, the basins would become defined by whole states. But now that we have divided the basins, how do you divide the water? To answer this question, Carpenter went with the simplest solution. Just an even split of the water between the two basins, 50/50. Using numbers from the Reclamation Service, Carpenter pegged the flow of the Colorado River at Numa to be 17.4 million acre feet. For any non-hydrologist listeners out there, David Owen in his book, Where the Water Goes, make sure to explain that an acre foot, a common measure of water volume, is the amount of water it takes to submerge an entire acre of land under one foot of water. Owen says this equals roughly 326,000 gallons, or 1,230 cubic meters. At the time his book was written less than a decade ago, a rilla thumb for average US household consumption of water was 1-2-3 families per acre foot per year. But I think my favorite fact from all the reading I've done on the Colorado River compact is when Owen writes that an Olympic-sized swimming pool is almost exactly 2 acre feet of water. I just know that I'm going to win on jeopardy with that little bit of minutio one day. But anyway, Carpenter said that there was 17.4 million acre feet at Numa, which means that each basin would be allowed 8.7 million. In the lower basin, that 8.7 million would be split across both the flow of the river at least ferry, and from tributaries entering the river below that point. Under this formulation, the upper basin would just have to make sure to meet a 10-year average quota of water that had to keep flowing into the lower basin. You'll often see it written that the upper basin had to guarantee a flow of X million acre feet a year will get into the exact number in a bit. But really, it was worked out on a 10-year basis to account for variations in the river's flow due to something like, "Oh, I don't know, drought." These were the rough details of the idea that Carpenter pitched the states for their next meeting. And with Carpenter's proposal now on the table, the Colorado River Commission would meet again in Santa Fe on November 9, 1922. Technically, each state had been asked to bring a compact proposal with them, but the majority of the meeting centered on debating the merits and details of Carpenter's upper basin lower basin split. And really, only Arizona's Norville and the Delgate from New Mexico were still pushing the idea of figuring out how much water every state should get. Norville would lob some very accurate criticisms that Carpenter's proposal by saying, "It isn't what we were appointed for. It doesn't arrive at any conclusions, and it leaves the two divisions to work out their own salvation." Though he was eventually persuaded that this was the only formulation that would work because of a lack of data that made state allocation impossible to determine, Norville spent a good amount of time at the meeting trying to bend Carpenter's proposal to his will. Part of his obscenity in finagling was a reflection of what was happening in Arizona at the time. I know it's been a hot minute since episode 170, but 1922 was an election year in Arizona. And in that election, George W. P. Hunt recently returned from his time serving as US minister to Siam beat his Republican rival, Thomas Campbell, to win his fourth term in office. I'm planning to make this the cornerstone of our next episode, but Hunt hated the compact, and as I said in episode 170, it was a hill he was ready and willing to die on. To make matters worse, Hunt agreed with George Maxwell, the Arizona Highline Canal guy, on water issues, so he definitely wasn't starting at a very compromising place. At one point, Hunt, who had made plenty of comments over the course of his campaign voicing distrust for the commission and their work, was invited by Hoover to come to Santa Fe to attend the closing sessions before the compact was signed. And Hunt declined to go, but he offered to have Maxwell come as his special representative to make sure Arizona's interests were looked after. Hoover turned down this offer, however, because he thought Maxwell was a crack pot, especially after the big stinky had caused during the public hearing in Phoenix that spring. It didn't help matters at all, that Maxwell had come to one of the open sessions in Santa Fe, when the commission was just getting going again, still spewing his ideas that all this was in service to an Asian conspiracy happening south of the border. But like I said, I planned to circle back around to how the compact played in Arizona politics next time, and possibly bring it up for a couple of weeks after that. So let's get back to the meeting itself. Norville needed a deal that he could get passed in the hostile political landscape back home, and he definitely didn't like Carpenter's proposal because he felt that it was mostly allocating flood water to Arizona. However, no one else wanted to open the Pandora's Box to try and figure out individual state allotment again, so Norville stood obstinately alone on this principle. Hoover tried to broker a compromise, saying that Carpenter's Basin idea was the best one, and that they should just agree to split the estimated flow at least very, 16.4 million acre feet a year, in two. As an added bonus, Arizona and the other lower basin states could claim the flow of their Colorado River tributaries below that point in addition to their allotment. Norville liked this idea, and Hoover's figures of ensuring that the lower basin had 82 million acre feet over the span of 10 years sounded great. But then the upper basin complained that this was too much water that they had to send downstream, so they proposed only guaranteeing 65 million acre feet over a 10 year period, and not guaranteeing anything with tributaries. Norville was unimpressed with this counteroffer, writing, quote, "If that is the attitude of the upper division, we better try out some other proposition because it would be utterly useless to take this proposition back to our state and expect to have it ratified by the legislature." With the delicate from Arizona willing to die on the hill that was 82 million acre feet or bust, and seeming threatening to derail talks again, Hoover stepped in again with a compromise. To each side be willing to agree to 7.5 million acre feet per year, or 75 million over 10 years. This was the perfect compromise, everyone had to give up something. And it's the deal that would finally be reached, with an additional million acre feet thrown in to satisfy Norville. It made a big stink about having the 75 million acre feet every 10 years be above and beyond what was coming down from the Colorado River tributaries in his state. No one was willing to give him that concession, so the additional 1 million acre feet was thrown in to make the deal much more palatable for him. Hoover would later tell Norville, quote, "Arizona should erect a monument to you and title it 1 million acre feet." The future president would also send Norville a photo of himself with the inscription, 2S Norville from Herbert Hoover, "Intribute to a million acre feet and a fine associate." This then was the main thrust of the compact. The water was split at least very, with the upper basin states promising that they would always send 75 million acre feet downstream every decade, or an average of 7.5 million acre feet a year, plus the extra million they had thrown in to satisfy Norville. After that, pretty much all that was left was to dot the eyes and cross the teeth. I'm joking, of course, because several other issues popped up that nearly derailed things again, such as a discussion about water from Mexico and a California-backed amendment that would make the whole compact dependent on the approval of a storage dam on the lower Colorado. And just to rock the boat at the very last minute, was a proposal by Norville. This time for the delegates to tell the Federal Power Commission that they supported James P. Juran's application to put a power plant at the Diamond Creek site along the Colorado. This is the project I talked about in the intro to in last week's episode, where Juran wanted to build a dam along the river directly north of Peach Springs, but his application had been pending for years now, precisely because the Commission had been at work. But what the compact now agreed upon, and knowing that Governor Hunt was a big supporter of Juran's project, so the Commission agreeing to it might malify him, Norville saw no reason not to press ahead with the idea. The reason not to press ahead on this issue was because no one else wanted it. Much like the Reclamation Service had done, they saw the Diamond Creek project as preempting the Boulder Canyon Dam and would actually make the latter unviable. Also, Hoover felt that power licenses were beyond the scope of the Commission, so eventually this issue was dropped. Finally, it was on November 24, 1922, that the delegates and their advisors gathered in Santa Fe's Palace of the Governors for the formal signing of the compact. It had taken the better part of a year, a grand total of 19 days of arduous negotiations, a slew of public meetings, and a lot of individual sacrificing compromising, but the first interstate compact for water rights was now signed. At this point, I feel that I should share what every single one of my sources does when talking about this momentous occasion, and that is the flaws in the compact. Don't get me wrong, everyone makes sure to point out what a historically significant document this is, and we still live with its ramifications, but it was not perfect. And one of the reasons we still live with ramifications today is because some of those ramifications are not good. One of the big ones is that while the upper basin, lower basin, division of water allowed the compact to come to fruition, all that it really did was kick the can of individual state allotment down the road. As Dean Eman points out in his book, The Politics of Water in Arizona, the compact envisioned that further agreements between the states in each basin would hammer out this equally vital question. However, as Owen remarks in Where the Water Goes, working out the compacts unresolved issues, especially individual state allotment, took several more decades and would eventually involve Congress, the National Guard, the Supreme Court, and Henry Kissinger. I even mentioned in episode 170 that one of Governor Hunt's many problems with the compact is that it did not tackle this very important and pressing issue. Owen also points out some other missing details, such as the fact that the compact doesn't consider at all the environmental impact of reclamation along the river. He writes, quote, "In the 1920s, conserving river water meant extracting as much profit from it as possible before it flowed into the sea. The fact that a natural resource might have value for species other than our own, or even that it might have aesthetic, spiritual, or recreational value for us, was not a consideration." Another aspect mentioned by Owen is a group that got hosed as much as Mexico when it came to dividing up the Colorado, and that is the southwest and merundian tribes. The compact had exactly one line regarding Amerindians in it, which was put in at the insistence of Hoover who didn't want some congressman to bring up opposition by asking, "Hey, what about the Indians?" It was also a way of covering themselves legally as the US did technically have treaties with Amerindian tribes, though as an editorial aside, it's not like the US had been that good at honoring those treaties. So the compact reads, quote, "Nothing in this compact shall be construed as affecting the rights of Indian tribes," end quote. But some of these tribes have huge reservations in the Colorado River basin. Just take the Navajo as a prime example. And in 1908, the Supreme Court ruled that part of the US government's creation of the reservations was a guarantee of water rights, which were federally reserved for that purpose. Further court rulings have clarified some important points here. First, that the reservations needed to have water rights to cover all acres of land that could be practically irrigated, and that the Amerindians held their rights whether they actually used the water or not. You might recall that part of the doctrine of prior appropriation is that if you were not using your water for a "beneficial purpose," you could lose your cling to it. That was not the case for these special water rights held by reservations. Finally, the court has ruled that in prior appropriation states, the reservation's priority date, when their rights went into effect, was the date of the reservation's founding. And that's huge, because in Arizona, for example, that would make the state's Amerindian tribes have rights that predate California's. To this day, there's still a lot of moving parts to figuring out Amerindian water rights, what's known as quantification. But own rights that he could see a future where nearly all of Arizona's agricultural irrigation water winds up in tribal hands, and they become essentially the landlords of virtually all the farmland in the state. But all these issues pale in comparison to the biggest flaw in the entire compact, and that is, that its basic premise is wrong. The commissioners assumed an average flow of 17 million acre feet a year, and so they apportioned 7.5 million a year to each basin, with the rest being fared to go to Mexico to be lost to seepage or evaporation or just to be apportioned later as the need grew. Here's the thing though, we now know that those numbers were wrong, stunningly wrong. It turns out that the two decades before the compact was signed were some of the wettest to happen since the 15th century, and 1922 was one of the wettest of them all. But it wasn't always going to be like that. Man, who was writing in the 1960s, says that during his time, records show that the actual flow of the Colorado River varied as widely as 10 million acre feet to 26 million acre feet at Yuma. Also a series of droughts in the 1930s and 40s forced a revision in the Colorado's estimated stream flow because the records between 1897 and 1943 at least vary averaged to less than 16.3 million acre feet a year. So more than 700,000 acre feet less than what the compact was assuming. Man also writes that in his time, one expert said that the average should be dropped by another 2 million acre feet. Owen says that for most of the 20th century, this hasn't mattered as many states weren't using their full allotment. In 2012, the upper basin was still only diverting 60% of their annual 7.5 million acre feet. However, as we get closer to modern day, we see these issues starting to rear their ugly heads, especially as lower basin states continue to draw more and more water from like mead and like pal, both of which are starting to look distressing low. Owen quotes a governmental accountability office report about the river system from 1985, saying that the usage amounted to 28.7 million acre feet a year. A number that in 2017 when Owen was writing is nearly double what we believe is the long-term average flow of the river, and 6.5 million acre feet more than what is stored in like mead and like pal combined. And all that doesn't get into things such as cyclical mega droughts that have historically hit the Colorado River basin and current worries about things such as climate change. Owen even points out the legal complexity of the question of if the guaranteed flow to the lower basin is not met, not due to the actions of the upper basin, but due to the whims of mother nature, well what then? This simple fact that there is far less water in the river than originally thought is the single greatest concern arising from the compact. Owen quotes the authors of a law journal article published in 1986 who said quote, "This mistake of fact was so phenomenal as to appear more like a trick of fate." However, before we jump in and bash the compact writers for this horrendous error, Owen tells us that we should cut them some slack. Or rather he quotes Patricia Mulroy at the University of Las Vegas who is an expert on the Colorado River and who says that we can't fault the commission because they were working off of the best information that they had at the time. It's only in hindsight that we know that their sample size for annual water flow was severely skewed. What is left for us to do is decide what steps we'll take today, but now I'm varying headlong into a policy discussion instead of a history lesson. Getting back to history, the delegates all sign the compact wards and all on November 24th, 1922, feeling that they had achieved something great. The compact itself covered everything everyone wanted it to do, or had compromised to do, and consisted of eleven articles, most of which are pretty short. You can google a copy and read it, it's only a four page PDF which seems kind of crazy for such an important document. However, this was not the end of the road. As Hunley ominously foreshadows quote, "Everyone soon learned the signing of a treaty was not a guarantee of its ratification," end quote. So join me next time as delegates return home to convince their state legislatures to ratify the compact only to meet some surprising resistance, and the biggest obstacle of them all was Governor Hunt in Arizona. It's going to take a few episodes to unpack the politics of it all, but Hunts opposition and that of the state legislature would nearly torpedo the compact. So much so, in fact, that the other states decided that only six of them really needed to sign the thing to let it go into effect. Which was a wise move on their part as Arizona wouldn't end up ratifying the compact for another two decades. But some of you just noticed that I said next time and not next week. There was a very good reason for that. Over the last couple weeks, my house has been the house of plague as both my son and my wife had come down with the flu, and as I'm sitting here tonight recording, I feel that tingle of the back of my throat, which is a sheer indicator that I'm the next to get hit. So I'm going to take this next week to rest and recover. And then I'll be back in two weeks as we dive down the rabbit hole of internal politics of Arizona and why they hated the compact so very much. Until then, I'm your host, David Rockhausen, and you've been listening to A.Z., the history of Arizona. Goodbye.