Why Colorado River Negotiations Are So Difficult

This story was originally published by High Country News.

On Nov. 11, the federal deadline for states to submit a water management plan for the Colorado River, negotiations remained deadlocked. Without agreement, it is unclear how a water supply that millions depend on will be managed after the fall of 2026.

A deal seems increasingly unlikely — raising the possibility of the federal government stepping in with its own plan, or that states will resort to litigation. As they continue to search for solutions, negotiators and stakeholders involved in the process described frustration and concern. 

Seven Western states have spent over two years struggling to reach a plan to cut water use and change rules governing major reservoirs. After 25 years of record heat and sustained severe drought, the depleted Colorado River has less to give, and it is 20% smaller on average than it was last century. With hotter, drier conditions expected to continue, the states are also grappling with limits of aging infrastructure made more urgent by low water levels and legal ambiguities. 

“There’s very little to no resiliency built into the river system right now, because the system is very depleted,” said J.B. Hamby, California’s representative in the negotiations.

Current negotiations are being led by the U.S. Bureau of Reclamation, the federal agency responsible for managing a complex network of dams in 17 states. If the Colorado River Basin states cannot produce a joint plan, the federal government has indicated that it will take action. Regardless of who drafts the agreement, they will need to take into account deepening legal uncertainties, longstanding tribal water rights on the river, and aging infrastructure built with abundance — not scarcity — in mind. 

The legal system to manage the river — how courts decide who gets water when — was not built for unrelenting drought. Western water law is a complex system rooted in the legal concept of prior appropriation. This means that during times of shortage, newer water users are called to cut their use first, while senior water users have more secure rights. 

During the last two decades of drought, this has meant that communities with newer water rights have continually faced yo-yoing water access. In extreme cases, they’re dealing with a complete loss of river water for the foreseeable future.

“The Western legal system was designed to encourage development. The prior appropriation system is really about rewarding those that develop their water the fastest,” said Jason Hauter, a member of the Gila River Indian Community and partner at the Akin law firm, which is representing the community in current negotiations. “But you can only keep developing water if there is plenty of water in the system … and right now there is no more water to develop.”

As pressure grows, states have started to question the foundational Colorado River Compact of 1922, which set the terms for how the basin divides its water and provided the basis for Western water law. “Previous negotiations did not address core issues. They either delayed them or worked around them, making do based on the circumstances of the time,” Hamby said. 

This time is different. “It’s really about much deeper roots that all fundamentally get back to the compact and what it means or doesn’t mean,” he said. 

It all comes down to a few sentences in the legal agreement: The Lower Basin states — Arizona, California and Nevada — say the compact requires the upstream states to deliver a certain amount of water to them. The Upper Basin states — Colorado, New Mexico, Utah and Wyoming — say that it means their use is not supposed to cause water flows to fall below a certain level. It’s a disagreement that wasn’t particularly relevant until recently. As ongoing shortages push the amount of water the compact says must be delivered downstream closer to falling below the set average, Upper Basin lawyers argue that it is climate change, not Upper Basin water use, that is to blame. Lower Basin lawyers disagree.

Historically, when Western water users cannot reach agreement, legal action is the fallback.

“I really think it is worthwhile to consider whether litigation is the best way for states to deal with managing conflicts,” said Jason Robison, a law professor at the University of Wyoming. 

For example, he said, Arizona and California spent more than four decades in court arguing over water rights claims and their different understandings of the compact. Arizona v. California was one of the longest cases in Supreme Court history.

“Over time, as is often the case with litigation, the case morphed like a river,” he said. “It changed form, it changed identity, and the legal issues that ended up being resolved were not the original ones that had been posed.”

Any future agreement also needs to account for the water rights of 30 federally recognized tribes, the basin’s original inhabitants, who hold rights to 25% of the river. In the past, tribal nations were largely excluded, both from the negotiations and the development of water infrastructure built around their communities. This exclusion has created physical and legal quagmires.

In the Lower Basin, the Gila River Indian Community holds a large volume of extensive water rights. When settling their water use rights, the tribe agreed to obtain a portion of its water through the Central Arizona Project — a series of canals, dams and aqueducts that delivers water throughout Arizona. According to the Supreme Court’s interpretation in the long-running court case, Arizona v. California, however, this entire project is junior to California’s water rights. 

Under severe shortage scenarios, if negotiators agree on a plan to cut water from the Central Arizona Project, the Gila River Indian Community would stop receiving a large portion of the water it is promised by the United States. The federal government would be obligated to look for an alternative supply, but it is unclear where the water would come from.

In past basin-wide agreements, Gila River’s leadership and willingness to cut its own water use have been integral to the success of past basin-wide agreements. However, the current negotiations have frustrated the community’s leadership owing to the nature of the proposed cuts.

“What is being contemplated is a major disruption to half of our water supply, and we will not be cut without our consent. This is water we are currently putting to use and have long-term plans to use,” said tribal Gov. Stephen Roe Lewis by email. “We remain opposed to all current proposals at this time because our concerns have not been adequately addressed.” 

How exactly to reconcile these legal issues is a question that the tribal nation, the federal government and the state of Arizona are trying to answer. 

“We hope to be able to say yes to a consensus approach if the Basin States can reach agreement and our concerns are addressed,” said Lewis.

Much like the river’s legal system, the dams and canals that store and move its water were not designed to deal with long-term shortages at the scale the West is currently facing. The infrastructure of the major reservoirs, built in the early to mid-20th century, was designed primarily for irrigation, power and flood control. They have few contingencies built in to move water if reservoir levels fall below a certain point.

At Colorado’s Morrow Reservoir, for example, landslides become a concern if water levels fall too low. At Glen Canyon Dam in Arizona, if reservoir levels dip to a certain point, four 8-foot-wide tubes become the only way for water to continue flowing through the Grand Canyon downstream to the millions of users on the lower Colorado.

Infrastructure limits were not an issue when the reservoirs were full. But Lakes Mead and Powell, which together hold 90% of the river’s stored water, are less than a third full today. Now, physical limits on how to keep water moving through the river’s extensive system of dams when water levels are low add urgency to the negotiations. 

Water managers must protect whatever minimum water level each dam was designed to operate with. If shortages continue and reservoir levels near these points, either water will have to be pulled from smaller reservoirs upstream to maintain critical levels at Glen Canyon Dam — the dividing point between the Upper and Lower Basins — or else water use will have to be cut. Both responses could prove necessary. That was the case in 2022 when cuts proved insufficient and releases from the Flaming Gorge and Blue Mesa reservoirs were used to top off Lake Powell. With banked water depleted, communities no longer have savings from previous water years to draw from; instead, they have to work with the water that the current year brings.

What happens next? For a century, the Colorado Basin states have been able to use and develop water largely according to their separate visions, with each state working out its own plans for its share of the river. 

Now, the region is having to confront deep philosophical differences, unresolved questions and legal ambiguities that in some cases stretch back a century, to when the compact was first devised. Negotiators are wrestling with questions about equity, sorting through risk scenarios and navigating the impacts of climate change in real time. Fundamentally, they are confronting a core question: After a century of developing water competitively, can all the stakeholders come together to create a cohesive vision for managing the Colorado River? 

So far, the answer appears to be no. Or, at least, not yet. 

Scott Cameron, acting leader of the Bureau of Reclamation, has said the federal government expects a finalized plan in May or June 2026. This gives policymakers time to get the necessary approval from state legislators and to implement any changes before the new water year begins next fall. Should the states fail to produce a joint plan, though, he said the feds will step in. But the details of how they’d intervene are unclear and the administration’s complete dismissal of climate change and recent cuts to funding have only added confusion about how much federal support there will be moving forward. 

It is in this atmosphere of intense uncertainty that the seven states are negotiating.

“Every state is having to make decisions that may set precedents — not just for 20 years, or the run of new operating guidelines, but for generations,” said Kathryn Sorensen, a water policy expert at Arizona State University. 

“The good news side of this story — if there is one — is water managers have long known this day might come and have been preparing,” she said. “So, we’re not talking about taps running dry. We’re talking about things like water might become a hell of a lot more expensive, or there might be massive litigation. Things that are distinctly unpleasant, but we can withstand.”