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 …