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What If California Had Won the 1963 Case Over the Division of the Colorado River?

Dec 21 2016

Outside of Phoenix, Arizona.    Daniel Piraino via Flickr

By Felicity Barringer

This is the first of a series of occasional posts looking at at how the West would have changed if a major historical event had — or had not — occurred. Scholars are often wary of such counterfactual explorations, but, carefully framed, they can help our understanding of today’s disputes. Here, we look at the implications of a different Supreme Court decision in the 1963 Arizona v. California case.

When the Court took the case in 1961, it was thought that a ruling could resolve nearly 50 years of bitter water wars. Arizona’s government long believed California was stealing a march on them and stealing their water in the process. This sense of being bilked had for 20 years prompted Arizona’s refusal to sign that the 1922 Colorado River Compact. In 1952, Arizona went to the Court, saying its ability to use Colorado River water was hampered by California’s excessive claims.

Such cases are often turned over to a special master; so was this. In 1962, reviewing the master’s report, eight Justices found themselves split, four to four. (Earl Warren, a former governor of California, recused himself.) Four felt that deference to the doctrine of prior appropriation called for a ruling in favor of California, with the older claims. Four were swayed by Arizona’s equity arguments.

As described in a 2013 Arizona Law Review article, Justice Felix Frankfurter, before a stroke forced him to retire, wrote a long memo on the case favoring most of California’s claims. Had it convinced just one colleague, the memo could have been the deciding opinion. We asked economists and water lawyers to speculate how Arizona might have evolved if California had prevailed 53 years ago.

There are two big questions:

  • Would Arizona have been guaranteed 2.8 million acre-feet of Colorado River water annually?
     
  • Would it have been able to get more than $4 billion to build the Central Arizona Project and bring the water to its population centers?

Arizona’s victory allowed it to create the Central Arizona Project, which pumps about 1.5 million acre-feet of water uphill from Lake Havasu to a point just south of Tuscon, as described in this 2002 paper by Michael Hanemann of the University of California, Berkeley. Three counties along the way have tripled or quadrupled their populations since 1970.

Bringing the Colorado River to the Heart of Arizona

Finished in 1993, The Central Arizona Project is the largest canal in the United States. The aqueduct brings Colorado River water to farms, cities, and industry in Arizona, and has contributed to the rapid growth of metropolitan Phoenix and Tucson.

Sources: Central Arizona Project, Arizona State University, University of Arizona, Natural Earth Data (basemap), California Department of Water Resources (California aqueducts)

Geoff McGhee/Bill Lane Center for the American West, Stanford University

This was a dream of Arizona’s 20th-century leaders. From the 1920s on, they fought to get a secure supply of Colorado River water to the center of the state. Backpedaling to Arizona’s dreams of the 1950s, we find a time when the seven states of the Colorado River basin had agreed to divide the river’s bounty with half of what was supposed to be 15 million acre-feet annually going to the Upper Basin, and half going to the Lower Basin states of California, Nevada and Arizona.

In 1928, the Boulder Canyon Project Act authorized construction of what is now Hoover Dam. It also authorized the lower basin’s share to be divided between the states with California getting 4.4 million acre feet — about 1 million less than it had been taking — while Nevada got 300,000 and Arizona 2.8 million. But the states themselves did not agree to that apportionment. Without the Supreme Court decision, which confirmed 1928 law’s water division, would Arizona have had a guaranteed water supply?

“I tend to doubt it,” said Rita Maguire, who for a decade was director of the Arizona Department of Water Resources and is now a partner at Maguire, Pearce & Storey in Phoenix. For decades, she said, Arizona had been in unequal combat with California in Congress; its path to guaranteed water was blocked “not only [by] the power of the California congressional delegation but the power of California farmers.”

How the Colorado River is Allocated Today

The seven states of the Colorado River basin share what was expected to be 15 million acre-feet of water annually – though the total has turned out to be considerably less in many years.

Bill Lane Center for the American West, Stanford University

Without a guarantee of 2.8 million acre-feet of Colorado River water, would the Central Arizona Project, known as CAP, have been built? Barton “Buzz” Thompson, a Stanford law professor, believes it probably would not have been constructed in its current form. “It could have made it impossible for Arizona to convince banks or politicians that they had enough water to provide a secure water project,” he said. Demonstrating there was a reliable supply of water to sell, and thus make money to repay the cost of the project, was critical. But, he speculated, Arizona could have built a smaller project, carrying less water, to the state’s population centers.

“Arizona trades on people,” said Timothy James, an economist at Arizona State University. Without CAP, “it definitely would have been difficult for developers to build more housing and would have constrained the number of people who moved here.”

Less water, less development. As Timothy James, an economist at Arizona State University said, “Arizona trades on people.” Without CAP, he said, “it definitely would have been difficult for developers to build more housing and would have constrained the number of people who moved here.” In reality, as described in his 2014 paper, CAP’s impact was transformative. From 1970 to 2015, Maricopa County, which includes Phoenix and Scottsdale, grew from 982,000 people to more than 4 million.

Did the 1963 ruling help or hurt the environment? Imposing the environmental ethos of the 21st century on the mid 20th century is risky. As Dr. James said, “Humans are incredibly ingenious — without CAP, that would have meant maybe we would have started to be much more careful about our uses of water 40 years ago.” And had California gotten more water then, it might have been profligate with it. But if California had more access to the Colorado River now, it would be easier to restore the dewatered Colorado River delta in Mexico or replenish the depleted Salton Sea, which is slowly disappearing.

And had Arizona failed to get a guarantee of Colorado River water, its farmers might have continued the unsustainable pumping of groundwater; in 1980, under duress from President Jimmy Carter (who had threatened to cut funding for CAP), Arizona passed a strict groundwater management bill. That bill, and the cost of CAP water, prompted many farmers to sell agricultural land, fueling the swift suburban development.

Ag's Declining Share of Central Arizona Project Bounty

The high cost of CAP water, relative to groundwater, is thought to have helped prompt Arizona farmers to sell agricultural land for suburban development. Over time, the share of CAP water devoted to agriculture has declined in favor of other uses.

Sources: Central Arizona Project, Arizona State University

Geoff McGhee/Bill Lane Center for the American West, Stanford University

“The one devastating environmental consequence [of the Court decision] is the loss of water to the Colorado River delta,” said Mark Squillace, a specialist in natural resources law at the University of Colorado Law School.

As Mark Squillace, a specialist in natural resources law at the University of Colorado Law School, said, “The one devastating environmental consequence [of the Court decision] is the loss of water to the Colorado River delta.” And, he pointed out, the coal-fired Navajo Generating Station in northern Arizona, built primarily to run the pumps pushing CAP water uphill, remains a source of significant air pollution.

Obviously, counterfactual speculation can soon run down a rabbit hole. But the views of these specialists make it plain that, had Justice Frankfurter written a more convincing memo in 1962 and found one more vote, Arizona would be a different state today.

 

 

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Compiled by Felicity Barringer, Emily Wilder, and Alessandro Hall

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As Wildfires Spread, Scientists Try to Understand Health Impacts. With fires spreading and air quality alerts being called around the West, scientific efforts to correlate the particulates from the widespread smoke have redoubled. Two Colorado universities and the University of Washington are part of an unprecedented effort, costing more than $30 million, to map the fire-sparked air pollution, using aircraft, satellites and vans full of high-tech equipment. Boulder Daily Camera Science Magazine

June 1, 2018

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April 20, 2018

Las Vegas by the Sea? Desert City Thinks About Desalination. With a new report predicting the Nevada city will outgrow its water supply within 20 years, Bronson Mack, a spokesman for the Southern Nevada Water Authority said recently, "Certainly desalination might be part of Southern Nevada's water portfolio at some point in the future. He added, "it could be something that happens within the next 20 or 30 years." Water Deeply

Once Again, Water Is For Fighting Over: the Central Arizona Project Is Accused of Unfairly Manipulating its claims on the Colorado River. Four states from the Upper Basin have joined Denver's water utility to accuse the Arizona agency of seeking to avoid the kind of cutbacks that could be imposed on other river users, In the throes of an 18-year drought, with Lake Mead's levels projected to decline further, the states risk losing their decade-old spirit of cooperation. John Fleck/Inkstain Denver Post

Protecting Hawaii's Reefs Means Cutting Tropical Fish Collection. That's the impact of a ruling by federal judges in the 1st Circuit Court. The court voided all 131 outstanding aquarium permits issued by the state of Hawaii, blocking the harvest of a quarter-million fish annually. This ruling blocking recreational harvesting of tropical fish comes on the heels of a Hawaii Supreme Court ruling last fall, which held that all commercial aquarium collection permits in the state had been issued illegally. Hawaii's conservation groups.have been fighting to protect the reefs and marine wildlife. Wisconsin Gazette

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March 21, 2018

New Mexico's State Government, Allied With Landowners and Outfitters Against Fishermen, kayakers, canoeists, lets property owners certify the public streams crossing their land as private property. Those sections of public waters are then no longer a place where people can fish, paddle or float. A 2015 New Mexico law, made concrete last December, gives them license to do so. "Prohibiting access from the public is privatizing what has been historically ours, and the way this happened is chilling," said Robert Levin, the New Mexico director of the American Canoe Association. The Guardian

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Sea Otters’ Comeback Success Hampered by Sharks. For decades, numbers of otters, protected by endangered species laws, have mostly increased, swelling to 3,200 individuals. But their range appears to be constrained. The otters can't seem to survive farther north than Santa Cruz or south of Santa Barbara. Their burgeoning numbers and restricted territory have led to overcrowding and, in some cases, starvation and death. Why can't they widen their territory? Studies indicate that sharks won't let them. Hakai Magazine

March 8, 2018

There Are Whispers of Another Wyoming Oil and Gas Boom in Converse County, an area which has experienced a downturn in the markets for all its extractable resources – coal, uranium, oil, and gas. But the hints of a boom are a reminder of the impacts of the bust, particularly on the schools. As one teacher said: "You see the effect that it has on the kids. The socioeconomic effect. … You had this in the classroom," when students' parents had been laid off. "They'd say: "Why did my parent lose their job?" From a community standpoint, county officials said, gradual growth is far better. Via the Casper Star-Tribune's Energy Journal podcast. Casper Star-Tribune

A Montana Entrepreneur Wants to Turn a High Butte Into a Battery that could even out the inevitable peaks and valleys in solar- and wind-powered electricity. The intermittent nature of electricity generated by renewables makes it hard to build a grid on their power, unless an additional power source can ensure constant power. Using the established method of pumping water uphill in times of high energy supply and letting it run down through turbines to make up for low energy supply, the planned battery-in-a-butte has received most of the permits it needs to be built near Martinsdale, an area where six wind turbines already provide power. Seattle Times

A Plan for Cleaning Up Utah Lake Would Let Developers Create Islands With Subdivisions, The West's third-largest freshwater body is overloaded with nutrients left by years of sewage disposal; there is also heavy phosphorus contaminations. Cleanup costs are estimated at between $7 billion and $9 billion. The state legislature is considering the project. Salt Lake Tribune

A New App Allows Water Quality Monitoring by Arizona Hikers and birders and others enjoying the outdoors. Using cellphones or tablets, they can input observations about everything from wildlife to visible pollution and water flow. The information goes to the state department of water quality. The app, developed by Arizona Water Watch, a program that also trains citizen scientists to collect water samples, has a geolocation feature. Cronkite News

The Venture Capitalist Vinod Khosla, Trying to Cut Off Access to Martin's Beach, heads to the California Supreme Court. The beach, a coastal nook a little south of San Francisco, can only be reached though a private road on the 53 acres of Khosla's shoreline property. After he bought the land, he locked the gate to the beach. He is now fighting against what he calls "Orwellian" laws governing the coast, particularly those giving power to the California Coastal Commission. The lawyer opposing Khosla said, ""The only way they can find for Vinod is to throw out the entire California coastal program." The Guardian

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