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1 The Law and Politics of the Operation of Glen Canyon Dam HELEN INGRAM, University of Arizona, Tucson, Arizona A. DAN TARLOCK, Chicago-Kent College of Law, Chicago, Illinois CY R. OGGINS, University of Arizona, Tucson, Arizona INTRODUCTION The construction and operation of Glen Canyon Dam on the Colorado River have detrimentally affected downstream resource values. These im- pacts are particularly acute because they threaten the ecological integrity of Grand Canyon National Park. It may be possible to mitigate some of these impacts by modifying the timing and pattern of reservoir releases, but this would require the Bureau of Reclamation and the Western Area Power Administration (WAPA) to alter the existing hydropower production re- gime. Proponents of the status quo sometimes argue that the law of the river prohibits any deviation from the present operation of the dam. This paper addresses the relationship between the law of the river and the day-to- day operation of Glen Canyon Dam. We argue that the law of the river does not prohibit management changes to mitigate downstream resource value losses or to reflect other social val- ues. The law of the river is a law of mass allocations between regions and among states which reflects a changing political balance among conflicting regional values. The rationale for water development decisions has always been multiple, including flood control, irrigation, water supply, economic development, recreation, and fish and wildlife habitat enhancement, as well as power generation. Power generation has never been a primary purpose of Colorado River water development, but instead has been a secondary use to serve other primary values. Dams have served as "cash registers" or, 10
THE LAW AND POLITICS... 11 more accurately automated tellers, to pay for other water development that could not be financed by public or private capital in the region. For this reason, the law of the river neither mandates nor constrains modifications in the day-to-day operation of the river to accommodate new values. The law constrains the day-to-day operation on the river only in times of acute water shortage or water surplus. To understand the legal relationship between power generation and other uses, the role of hydroelectric power must be placed in the broader context of the changing values in the use of the Colorado River before we address the narrower question of whether dam operations may be modified. HISTORY OF RIVER DEVELOPMENT The history of Colorado River water policy has been determined by the politics of balancing conflicting beneficial use values. Geopolitics bal- ancing uneven rates of development among the upper and lower basin states has been both a motivation and an enduring force in the development of the law of the river. Within the river basin states, economic development has been a sustained but not exclusive interest; social purposes such as building an irrigation society have also been important. The history of river use has been characterized by expanding multiple rather than single values. Ac- cording to Wallace Stegner (1953, p. 353), "the whole Western future is tied to the multi-purpose irrigation-power-flood-control-stream-management projects...and the West's institutions and politics are implicit in the great river plans." As values changed or new values emerged, priorities in the management of the Colorado River have shifted to meet these changes. The Colorado was dammed to reduce the risks of feast and famine, and minimization of risks, in particular the risks of long- or short-run shortages of water, remains a continuing preoccupation of the river's federal manag- ers and the basin states. The arid West is not simply a scientific fact. Aridity has shaped the political culture of the basin states and the modern urban West. Fear of a long-term drought similar to the one that is thought to have driven the Anasazi out of the basin has historically animated west- ern water law and politics and is the ethic of the water community. States have tried to accommodate unlimited growth on a limited water budget by providing ample margins of safety against shortages. As new uses have placed "calls" on the river, however, the law of the river has had to evolve to provide not only certainty but flexibility as well. While legal doctrines may have lagged behind changes in public attitudes, they have not pre- vented water policies changing to serve changing values that include equity to insular minorities and environmental quality. The dreams of the first homesteaders, gold miners, and other settlers of the western United States to make the deserts bloom remain the compelling
12 COLORADO RIVER ECOLOGY AND DAM MANAGEMENT vision in the policies of water users today: an ample, secure water supply that will not run dry or be taken away. The fundamental doctrine of western water law the rule of "first in time, first in right" was conceived to allow investors to build projects that diverted water from mainstreams of rivers to lands sometimes remote from river basins (Tarlock, 1989, p. 331~. The prior-appropriation doctrine also protected established beneficial uses of water by ensuring that later upstream diversions would not drain the water supply. Water law was fashioned not only to allocate water and to facilitate develop- ment but also to cushion development from risk of shortage and drought. As agricultural and urban uses began to outstrip available water supplies, the western states persuaded the federal government to secure new supplies through carryover storage and interbasin diversion projects. The impetus for federal involvement went beyond economic development to include the social purpose of promoting Jeffersonian agrarian democracy in the West by supporting the settlement of yeomen farmers. In his December 1901 State of the Union address, President Theodore Roosevelt envisioned that "itchy western half of the United States would sustain a population greater than that of our whole country today if the waters that now run to waste were saved and used for irrigation" (Martin, 1989, p. 30~. This goal was never realized despite Congress's yeoman attempt to mandate yeomen. The 160-acre-limitation provisions of the original reclamation act make clear the social purposes of Congress, which subordinate efficiency to dis- tributional purposes. The Reclamation Act of 1902 provided interest-free federal loans and long payback periods for multipurpose projects whose principal aim was the agricultural settlement of the West. The federally developed water was used to attract small farmers to previously arid and barren areas in order to create thriving communities. When farmers could not repay their debts, other legislationbeginning with a $20 million loan in 1910 and the Curtis Act of 1911 and continuing almost every year until the 1939 Reclamation Project Actprovided additional loans, extended re- payment periods, or made it easier to renegotiate reclamation contracts. According to the Congressional Record, the 1914 Reclamation Extension Act was specifically intended to "create an irrigated empire in the West" (McCool, 1987, p. 68~. Reclamation laws not only made available new water for irrigation but also reduced the risks involved to the developers. DIVIDING THE WATERS: THE ORIGINS OF THE LAW OF THE RIVER The certainty of water rights in the West has traditionally been left to state laws and interstate negotiations. Water allocation powers were ceded to the states immediately after the Civil War, and the federal government has never exercised its full constitutional powers over western water. While
THE LAW AND POLITICS... 13 the federal government could provide money for construction, it could not provide the legal security necessary for development. Of the seven states in the Colorado River basin, California developed most rapidly in both agricultural and urban areas. Southern California had long eyed the Colorado River as a potential source of water supply; how- ever, early attempts to control the river's major floods were short term and for the most part unsuccessful. Additional attempts to persuade Congress to authorize construction of a multipurpose flood control, power, and storage dam in Boulder Canyon on the lower Colorado and the All-American Canal to deliver river water to southern California's Imperial Valley were also unsuccessful. Fearing that California and to a lesser extent Arizona would acquire eternal vested rights to Colorado River supplies under the law of prior appropriation, the then rural upper basin states used their representa- tion in Congress to block all reclamation projects on the lower Colorado. Soon all states were forced to negotiate a compact. The Colorado River Compact of 1922 modified the law of prior appropria- tion to allow development of the lower basin to go forward while at the same time protecting other geopolitical values. In exchange for upper basin support of Boulder Canyon project legislation, representatives of the seven basin states agreed to apportion the beneficial consumptive use of the Colorado's waters on the basis of territory rather than prior appropriation, thus reducing the risk of water shortage to the upper basin caused by California's expanding water demands. Lee's Ferry, Arizona at the mouth of Glen Canyon, was arbitrarily selected as the boundary between the basins, and the delegates attempted to settle the conflict over the development of the river by dividing the Colorado equitably between the upper and lower basins. Structure of the Compact Under Article II of the compact, the states of Colorado, New Mexico, Utah, and Wyoming became "States of the Upper Division," while Arizona, California and Nevada became "States of the Lower Division." In addition to providing equity between the upper and lower basins, the major purposes of the compact are: to establish the relative importance of different beneficial uses of water; to promote interstate comity; to remove causes of present and future controversies; and to secure the expeditious agricultural and industrial development of the Colorado River Basin, the storage of its waters, and the protection of life and property from floods (Article I). The negotiators of the compact assumed that they were dividing an aver- age annual flow at Lee's Ferry of 16 million acre-feet (maf). Article II(a) apportions "in perpetuity" the "exclusive beneficial consumptive use" of
14 COLORADO RIVER ECOLOGY AND DAM MANAGEMENT 7.5 mar annually to each basin, and Article III(b) grants the lower basin the additional right to the assumed 1.0 mar surplus. More specifically, because ~ ctuations or cycles of wet and dry years might diminish already estab- lished lower basin uses, Article III(d) provides that the upper basin states will not cause the flow at Lee's Ferry to be depleted by 75 mar for any consecutive 10-year period. In anticipation of the assertion of future claims by Mexico, the basin states provided that any amount granted to Mexico by treaty would be divided equally between the two basins. The lower basin also retained the right to use any water not immediately put to use in the upper basin through a provision which declares that the upper basin states cannot withhold the delivery of water "which can not reasonably be applied to domestic and agricultural uses" [Article III(e)~. The lower basin's reciprocal duty not to demand the delivery of water for other than domestic and agricultural purposes is meaningless because the lower basin puts its entire river allocation to these uses. California was the major beneficiary of Article III, since its vested rights and existing uses were protected. In contrast, the upper basin states merely acquired the opportunity to use their entitlement as opposed to obtaining firm rights to the use of 7.5 mar per year. Thus, the delegates gave highest priority to water use for agricultural and domestic purposes and to the protection of existing uses. Other beneficial uses such as power generation and navigation were also provided for in the compact, but at a lesser priority. For example, Article IV(b) expressly states that the impounding and use of water for hydropower"shall be subservient to the use and consumption of such water for agricultural and domestic purposes and shall not interfere with or prevent use for such dominant purposes," while Article IV(a) makes navigation "subservient'' to the three other uses. The Evolving Law of the River Just as the Grand Canyon is a living geological record, the law of the river can be measured by time. Time helps define the law's different levels of commands. The law adopts different time horizons from the conceit of the eternal to the frantic pace of an hour. A time horizon also helps to chart the ever-increasing complex of accretions that are changing the law. For example, the law of the river speaks to the following time commands: Eternity The interbasin allocations and those allocations among the ba- sin states. Indeterminate- Possible flows necessary to protect endangered species. DecadeThe upper basin delivery obligations.
THE LAW AND POLITICS... 15 Year Lake Powell fill obligations and the Lake Powell-Lake Mead bal- ance. Hour WAPA's power generation decisions. The classic law of the river is concerned with the eternal Old Testament commands, but the law is more complex than the original interregional allocations (Bloom, 1986, p. 139~. For instance, the law of the river in- cludes the totality of compacts, international agreements, treaties, judicial decisions, statutes that speak directly to the river and to water allocation generally, and the administrative practices that influence the allocation of the river. This expanded definition of the law encompasses both immutable commands and mutable principles. DISTRIBUTING FEDERAL LARGESSE The politics that combined agreement on the Colorado River Compact and Boulder Dam were the impetus for the creation of distributive federal water politics. Distributive politics contributed substantially to reducing the risk felt by the less developed states in face of California's successful bid for securing large quantities of real "wet" water. Legal allocations of water under the 1922 compact constituted only paper rights until they could be translated into congressional authorization and appropriations for projects. The informal rule of give and take developed in Congress dictated that the congressional delegations from each state would unite behind projects in their sister states. These policies led to construction of the large multipur- pose reservoirs on the Colorado. An understanding of the reasons that led to the construction of Boulder Dam and Glen Canyon Dam is essential to understand current conflicts, because the success of the basin states in securing single-purpose projects under the banner of multiple use opened the doors to the recognition of new interests and values. Boulder Dam was also important to the upper basin as well as the lower basin, not primarily because of the power it provided to operate and maintain the Boulder Canyon Project but because its hydropower revenues supported water development in the upper basin. Power revenues were eventually reinvested into the Colorado River Development Fund, a basin development fund authorized by Congress under the Boulder Canyon Adjustment Act of 1940 to be used for "studies and investigations by the Bureau of Reclamation for the formulation of a comprehensive plan for the utilization of the waters of the Colorado River system for irrigation, electri- cal power, and other purposes" (Goslin, 197S, p. 36~. In addition, legisla- tors from the rural, more slowly developing states were willing to support the dam on the promise that the support of the California congressional delegation would be forthcoming when a project benefiting their constituen-
16 COLORADO RIVER ECOLOGY AND DAM MANAGEMENT cies was proposed. Congress came to authorize water projects in large- scale omnibus legislation with bundles of projects unrelated in hydrologic and economic terms tied together only by mutual political promises. Thus was ham the iron triangle of the Bureau of Reclamation, Congress, and the ~ O basin states. The linkage between power revenues and basin development runs throughout the history of river development. Under President Truman's Commissioner of Reclamation, Michael Straus, the Bureau of Reclamation began to advo- cate basinwide plans. This meant that power revenues could be used to finance small, inefficient irrigation projects. Navajo Dam in New Mexico is a classic example. Senator Clinton Anderson, the father of the 1956 Colorado River Storage Project Act, included this dam, which could not even pass muster under the Bureau of Reclamation's flawed benefit-cost procedures, in the act. As the senator's biographer has observed (Baker, 1985, p. 64~: crucial to the future authorization of Navajo irrigation projects, the dam was merely New Mexico's entering wedge..., its guarantee that the state would have a project from revenues of larger power producing dams included in the Colorado River Storage Project. The Colorado River Storage Project Act, which included Glen Canyon Dam, was the culmination of distributive politics which subordinated effi- ciency to regional development. The accumulation of hydrologic evidence and the drought period from 1931 to 1940 had upset the sense of security in the upper basin that it would be able to fully develop its legal water rights under the Colorado River Compact. Studies showed that the annual flow from 1906 to 1947 was only 14.2 mar per year, while in the decade of the 1930s only 10,151,000 acre-feet passed Lee's Ferry; the compact signed in 1922, however, had assumed a minimum of 16 mar as a basis for allocation. If the upper basin were to consume the 7.5 mar allocated by the compact, it would default on its obligation to the lower basin. The engineering solution was to construct a dam in close proximity to Lee's Ferry that could store water in wet years and release water in years of shortages, thereby enabling the upper basin to meet its 1922 compact obli- gations while at the same time maximizing the upper basin states' future water uses. Thus, preservation of geopolitical equity was the major purpose served by Glen Canyon Dam. Power generation was clearly secondary to the need for revenues from ratepayers for future water development. Ac- cording to Norris Hundley (1986, p. 30), Glen Canyon became the "cash register" generating most of the revenue through the sale of hydroelectric power to build a dozen so-called participating projects elsewhere in the Upper Basin." Further, Glen Canyon Reservoir was sized to leave room for the accumulation of silt predicted by conservationists to occur. However,
THE LAW AND POLITICS... 17 in the end neither the law of the river nor federal carryover storage projects can provide enough security for the upper basin states. Denver's best water lawyers are trying to lay the foundations for reopening the 1922 compact through the contract doctrine of mutual mistake because of the original overestimate of the river's annual yield (Carlson and Boles, 1986~. Twelve years after Glen Canyon Dam was authorized, Arizona got its turn at the federal trough. The Colorado River Basin Project Act of 1968 was a water development spectacular, with multiple projects serving a vari- ety of interests (Ingram, 1990~. Tucked into the bulky package of legisla- tion were projects serving each of the basin states that were neither hydro- logically nor economically related but that brought political support. However, the reclamation era was ending. Among the items contained in the original legislation were two dams in Bridge and Marble canyons, at either end of Grand Canyon National Park. The principal purpose of these structures was hydroelectric power generation to pump water from Parker Dam on the Colorado to the Arizona cities of Phoenix and Tucson through the huge and costly Central Arizona Project (CAP), which was the centerpiece of the legislation. Another purpose was to provide a cash register to pay for augmentation of the river to allow for future upper basin development. A study conducted by Tipton and Associates had convinced upper basin lead- ers, including Congressman Wayne Aspinall of Colorado, then Democratic chairperson of the House Committee on Interior and Insular Affairs, that there was insufficient long-term supply to serve lower river projects and allow for the upper basin to use its full entitlement. Aspinall was willing to support the CAP only if mechanisms were included, e.g., the dams to bank- roll water transfer from a source such as the Columbia River (Ingram, 1990~. Hydropower at Bridge and Marble Canyon dams was viewed as an in- strument and not as a major goal in itself in the Colorado River Basin Project proposal. The 1956 Colorado River Storage Project Act specifically stated that all projects, including Glen Canyon Dam, should be operated at their most productive rate to produce the greatest practical amount of firm capacity and energy. Certainly a high level of energy receipts was func- tional for maximizing revenues to the basin development fund for the re- payment of reclamation loans and the construction of new projects. How- ever, when maximizing energy conflicted with other values in the politics leading to authorization of the Colorado River Basin Project Act in 1968, energy production was clearly forced to take a secondary place. The idea of flooding the Grand Canyon for profit became a lightning rod that attracted conservationist protest so strong that the entire package of projects was threatened by defeat in Congress (Ingram, 1990~. In 1967, after complex behind-the-scenes negotiations, Secretary of Interior Stewart Udall announced that the administration was withdrawing its support for the dams in favor of a coal-fired generating station on Navajo Indian land. This
18 COLORADO RIVER ECOLOGY AND DAM MANAGEMENT action was taken without the support of Commissioner of Reclamation Floyd Dominy, who resented the Bureau of Reclamation becoming involved in energy production other than hydropower (Reisner, 1986, p. 300~. Neither the amount of energy lost or gained nor the advantages of hydroelectricity to supply peaking power to serve growing cities was much of an issue. Instead, legislators were preoccupied with implications for the trust fund, with future water transfers from such distant areas as the Pacific Northwest, and with potential shortfalls of water supply. The delicate balancing in- volved in the politics of the Colorado River Basin Project Act was embod- ied in the multiple-use/multiple-value language adopted in the 1968 statute: This program is declared to be for the purposes, among others, of regu- 1aung the flow of He Colorado River; controlling floods; improving navigation; providing for Be storage and delivery of the waters of the Colorado River for reclamation of lands, including supplemental water supplies, and for municipal, industrial and otl~er beneficial purposes; . improving water quality; providing for basic public outdoor recreation facilities; improving conditions for fish and wildlife, arid the generation and sale of electrical power as an incident of the foregoing purposes [emphasis added]. This language, which specifies that the cash register benefits of energy production were to give way to other concerns if conflicts were to arise, takes precedence over the narrower directive made by Congress in the 1956 Colorado River Storage Project Act. THE NECESSITY FOR FURTHER ALLOCATIONS: SECURITY UNDERMINED BY CONFLICT The law of the river has never been static or free from risk, and the basin states live under an illusion of security. The 1922 compact was only the starting?point for further allocations among the basin states. Further com- pacts, Supreme Court litigation, international agreements, and state and fed- eral laws were necessary to firm up individual state rights and provide the large federal reservoirs necessary to guarantee delivery obligations. Addi- tional interests that were initially omitted also had to be accommodated along with newly emerging values. The development of the law of the river has been extensively chronicled and analyzed. For our purposes, the impor- tant point is that most changes refine the regional mass allocations. The 1922 compact only divided the river between upper and lower basins; it made no attempt to allocate shares within each basin. By a compact signed in 1948, the upper basin states divided their 7.5-maf share among them- selves by a percentage allocation. In contrast, the lower basin states fought over the division of their allocation in Congress, in the courts, and even on the Colorado's banks. The "fundamental error" of no intrabasin allocation
THE LAW AND POLITICS... 19 was one of several reasons behind Arizona's refusal to ratify the 1922 compact until 1944, for while the compact protected the upper basin from California, it did not protect Arizona from California (Hundley, 1986, p. 19~. In 1928 Congress approved the Boulder Canyon Bill, which authorized the construction of Boulder Dam and the All-American Canal on the condi- tion that California agree to limit its legal rights to the Colorado's waters to 4.4 mar annually plus one-half of the surplus a limitation California agreed to in 1929. In 1963 the Supreme Court held in Arizona v. California that when Congress enacted the Boulder Canyon Project Act it exercised its constitutional power to allocate interstate waters and thus implicitly appor- tioned the lower basin's share of the river. Consequently, California, Ari- zona, and Nevada received 4.4 mar, 2.8 mar, and 300,000 acre-feet of wa- ter, respectively. Arizona v. California was the product of geopolitical forces. By block- ing the federal construction of dams serving Arizona on the grounds that insufficient water existed in the basin, California failed to honor the rules of distributive politics. Arizona turned to the courts to adjudicate its water rights on the Colorado, and after 12 years Arizona's position was generally vindicated. In the course of its opinion, however, the Supreme Court el- evated the status of other previously underappreciated values, and Arizona's great victory was pyrrhic. To secure federal financing of the CAP, Arizona had to agree to subordinate its decreed right to California's 4.4 mar entitle- ment [43 U.S.C. section 1521(b)~. ACCOMMODATION OF NEW VALUES Even as multipurpose development was embraced as the way to pay for irrigation projects, new values previously slighted under the multipurpose balancing policies of the conservation era were emerging. For instance, at the same time that Congress authorized Glen Canyon Dam in the Colorado River Storage Project Act, another dam was defeated for environmental reasons. Echo Park Dam on the Green River threatened to back water into Dinosaur National Monument. The location of the dam in the monument was opposed because it might constitute a precedent for invasion of the national park system (Tarlock, 19871. Environmental quality was also at issue. The question was whether the natural beauty of the striated canyons in the Dinosaur National Monument were of sufficient value for the nation to forgo the economic, engineering, hydrological, and local political advan- tages of a dam at that location (Stratton and Sirotkin, 1959~. Environmental values also increased in importance with the elimination of Bridge and Marble Canyon dams from the Colorado River Basin Bill of 1968. In 1977, Roderick Nash documented the change in prevailing values represented in the defeat of these two dams (Palmer, 1986, p. 86~:
20 COLORADO RIVER ECOLOGY AND DAM MANAGEMENT [Boulder Dam's] completion in 1935 was a reason for universal jubila- tion in the United States. A wild river had been tamed. The engineers were heros, and as Lake Mead began to fill, a proud nation proclaimed Boulder Dam the eighth wonder of the civilized world. Thirty years later the tables were almost totally turned. Again engineers proposed a dam on the Colorado Riverupstream from Hoover Dam in the Grand Canyon. But this time the engineers did not seem to be the agents of progress that they had been in the 1930s. For a great many Americans the Colorado River in the Grand Canyon was not a monster to be shack- led and put to work for the economy but something valuable in its own right and already working to enhance the quality of American life.... In 1968 the cheers that forty years before greeted the authorization of Boulder Dam now sounded in support of the defeat of the Grand Can- yon dam projects. Thus, Echo Park touched off a decade-long debate about the merits of preserving wild and scenic rivers. In 1968 the big-dam era effectively ended with the passage of the Wild and Scenic Rivers Act. Omitted Interests: Indians and Mexico The development of the West was uneven in social as well as geographic terms. Much of this unevenness was due to- inequities in access to the process of dividing up the river. According to Philip Fradkin (1984, p. 155), the Colorado was essentially a"white man's river" or more narrowly "an Anglo river" since: heaven within this last concentric racial circle, the river has been di- vided and diverted by only a very small segment of Caucasian society. Others do benefit, but only the few distribute the water. This small group of decision-makers and technicians has been invariably white, Anglo, male, and extremely conscious of how they wanted the eco- nomic benefits of water dispersed. In 1922 the full range of relevant interests were not represented in the negotiations. The two most obvious exclusions were Native American In- dian tribes and the government of Mexico. In the 1908 decision in Winters v. United States, the United States Supreme Court had given Indian tribes priority to large amounts of waterenough water for all of their future needs. The negotiators of the 1922 compact, however, refused to deal with Indian water rights. The compact left this issue to the courts and to Con- gress with the statement"Nothing in this compact shall be construed as affecting the obligations of the United States of America to Indian tribes" (Article VII). Native American rights continued to be ignored until the 1963 ruling in Arizona v. California. In its opinion, the Supreme Court took Article VII of the compact at face value by granting five Indian tribes
THE LAW AND POLITICS... 21 located along the Colorado River a reserved right to the river's waters dating back to the establishment of the Indian reservations. Indian water rights were to be quantified by their "practically irrigable acreage." To satisfy these claims, the water is subtracted from the allocation of the state in which the reservations were located (Tarlock, 1987~. While not directly affected by hydroelectric power generation, the satis- faction of Indian water rights reminds us that there are a number of other values that must be served by contemporary water management. The rights of Indian people to the benefits of the Colorado River can no longer be ignored, and all decisions must be examined for their effects on Indian interests. Indian peoples have become increasingly aggressive not only in protecting their present water values but also in preventing water develop- ment that adversely affects relics of their heritage and religion. Archeologi- cal sites are protected by federal law and by strong political support. The net effect of these claims is to strengthen the political and legal case for the accommodation of omitted interests. The rights of the government of Mexico to the Colorado's waters have also been accommodated by superimposing new rights onto the original mass allo- cation authorized by the Colorado River Compact. Mexico was granted a 1.5- maf annual share of the river in 1945 only after lengthy negotiations with the U.S. State Department (Meyers and Noble, 1967~. This treaty was passed despite considerable opposition by California, which stood to lose the nearly 1 million acre-feet of surplus water that it was using at the time (Hundley, 1986, p. 27~. Because the water flowing into Mexico was often too salty to be useful, in 1973 Mexico obtained additional water quality rights by a subsequent international agreement (Miller et al., 1986, p. 29~. Accommodating Emerging Values In the past two decades, environmental values have evolved from mar- ginal to paramount societal values. The Colorado River has contributed significantly to this evolution. The elimination of Echo Park Dam in the 1956 legislation and the two Grand Canyon dams in the 1968 statute is evidence that conservation groups could exercise veto power on water de- velopment that directly infringed upon core values of national parks and wilderness areas. In the environmental decade of the 1970s, environmental groups substantially extended their ability to insert themselves in water politics. As time progressed, other values joined in making claims against the developmental perspective that has long commanded major attention. Many of these new claimants are less well served by power generation than by economic development. The accommodation of newer resource values such as use of the river for habitat maintenance, recreation, and the stabilization of riparian corridors
22 COLORADO RIVrER ECOLOGY AND DAM MANAGEMENT such as the Grand Canyon has proved more difficult than blocking new dams. While these interests can be recognized through the creation of new water rights, protection of these interests requires management of existing dams on the river. The web of interconnected statutes, international agree- ments, and cases that make up the law of the river, however, is not designed to manage the river for the full range of resource values. Furthermore, all states have resisted management because of a fear that it will dilute their mass allocation consumptive use rights. This defect in the law of the river is becoming more acute as new values assert themselves. The basis for the accommodation of new values was laid in 1963 in Arizona v. California. In addition to granting Native Americans the right to use as much water as they practically could to irrigate their lands, the Supreme Court granted reserved rights to federal land management agencies for federally reserved lands such as parks and forests. These non-Indian reserved water rights remain a source of great controversy. In the 1976 decision in United States v. New Mexico, the Supreme Court severely re- stricted the conditions under which these rights can be claimed when it held that public land management agencies can claim only federal reserved rights necessary to fulfill a primary water-related public land reservation. Still, because Grand Canyon National Park was set aside to preserve the Colo- rado River, this standard could be the basis for the Department of the Inte- rior to argue that the enabling legislation allows the National Park Service to assert a federal reserved water right to protect the ecological integrity of the Grand Canyon. Additional new values were incorporated in a number of national envi- ronmental statutes passed in the 1960s, although these new statutes were not integrated into the law of the river. The 1964 Fish and Wildlife Coordi- nation Act, for instance, dictated that fish and wildlife were to be consid- ered as primary values. The Fish and Wildlife Service, however, lacked sufficient power and resources in the early years to block project construc- tion damaging to endangered species or habitat, and the act did not fulfill its potential on the Colorado. While it is too late to include such values appropriately in evaluating proposed construction of projects, such concerns can be included as criteria for water management. Two notable statutes with considerably more potential to require river management are the Clean Water Act and the Endangered Species Act. These statutes superimpose environmental protection mandates onto exist- ing water allocation regimes without specifying the extent to which prior allocations are modified, but the few court cases involving these statutes suggest that existing allocations are not a per se barrier to the accommoda- tion of federal objectives. Together, the two acts strengthen the case for maintaining streamflow so as not to disturb delicate ecosystems and will
THE LAW AND POLITICS... 23 play a much more important role in the future allocation of western waters than they have in the past. The Wild and Scenic Rivers Act is further evidence of increased priority being placed on maintaining rivers in their natural state for preservation and human enjoyment. The National Park Service has struggled mightily with the issue of whether only oar-powered boats should be allowed in the Grand Canyon in order to protect the quality of the wilderness river experience. It is obvious that maintaining river levels in a stable condition also contrib- utes to boater safety and enjoyment. Daily fluctuations of flows at peak power times are clearly not natural. The 1972 amendments to the Federal Water Pollution Control Act estab- lished water quality and pollution control as significant federal values. The Colorado River Salinity Control Act of 1973 provided funding for new projects to reduce naturally occurring salinity such as in the Little Colorado tributary and mandated that other projects be managed to reduce the infu- sion of salt (Mann, 1975, p. 106~. Some lower basin leaders have argued that the dangers and costs of increased salinity are sufficiently serious to forestall development in upper basin states. The adverse impacts of salinity will have to be taken into account in any future development and be consid- ered in river management for hydropower as well. HOW SHALL THE COMPUTERS BE PROGRAMMED: MANAGING THE RIVER IN THE SHADOW OF THE LAW Although Arizona v. California established the Secretary of the Interior as the manager of the Colorado, the real managers are the Bureau of Recla- mation and WAPA. The question is, Can these single mission agencies act as stewards for diverse interests? These agencies have historically been positioned to mediate among conflicting interests, and their jobs are becom- ing even more exacting as new claimants gather strength. For example, the "Mission of the Bureau of Reclamation" includes providing for: municipal and industrial water supplies; hydroelectric power genera- tion; irrigation water for agriculture; water quality improvement; flood control; river navigation; river regulation and control; fish and wildlife enhancement; outdoor recreation; and research on water-related design, construction, materials, atmospheric management and wind and solar power. That the Department of the Interior officially recognizes the complexity of its role is evidenced by the content of the publicity it distributes: As the Nation's principle conservation agency, the Department of the Interior has responsibility for most of our naturally owned public land l
24 COLORADO RIVER ECOLOGY AND DAM MANAGEMENT and natural resources. This includes fostering the wisest use of our land and water resources, protecting our fish and wildlife, preserving Me environment and cultural values of our national parks and historical places, and providing for the enjoyment of life through outdoor recre- ation. The Department assesses our energy and mineral resources and works to assure that their development is in the best interest of all our people [emphasis addedJ. Glen Canyon Dam is the linchpin of the management of the Colorado because it enables the upper basin states to store sufficient water to meet their 10-year delivery obligation to the lower basin states. Paradoxically, the law of the river controls the yearly operation of the dam but does not constrain daily operations for power generation. The reasons are that the law of the river affects power generation only in the case of long-term extreme shortage, while the law of reservoir operations is a law of annual fill targets. The relationship between power generation and other uses of the river has been the subject of some speculation among commentators (Meyers, 1967; Getches and Meyers, 1986), but there has not yet been a conflict that tests the relationship. River experts have constructed a set of hypothetical scenarios, much like the Defense Department's doomsday scenarios, that examine the operation of the compacts under worst-case conditions. The issue has conventionally been discussed in the context of the upper basin's ten-year delivery obligation or its right to store water. Because the delivery obligation is absolute, the upper basin states are precluded from objecting to the use of this water for power generation before it is consumed by the lower basin states. The issue then becomes a question of when the lower basin states can require upper basin water solely for power generation. For this scenario to occur in accordance with the requirements of the 1922 compact, there would have to be a prolonged drought that made it impossible for the upper basin to meet its 10-year delivery obligations and the lower basin states would have to demand the release of water for hydropower. The late Dean Charles J. Meyers sug- gested that if lower basin consumptive demands are met, Article III(e) which expresses a clear preference for domestic and agricultural uses over power generation prohibits the lower basin from demanding water solely for hydropower (Meyers, 1967, p. 20~. Under this same logic, upper basin lawyers claim that when the upper basin is meeting its Article III(d) obliga- tions, the states can hold water for carryover storage at the expense of power generation during times of surplus "to the extent needed to provide for their own allocated consumptive uses and to meet their obligations at Lee Ferry" (Clyde, 1986, p. 114~. The subordination of power to irrigation and domestic use was continued in the Colorado River Storage Project Act, which directs the Secretary of Interior to produce the greatest practicable
THE LAW AND POLITICS... 25 amount of power and energy that can be sold at firm power and energy rates consistent with the Colorado River Compact, the Upper Colorado River Basin Compact, the Boulder Canyon Project Act, and the Boulder Canyon Project Adjustment Act [43 U.S.C. section 620(m) and 42 U.S.C. section 1552(c)~. For the present, Glen Canyon operating criteria balance power genera- tion with downstream consumptive demands but grant the Bureau of Recla- mation and WAPA the discretion to manage the dam as a cash register or ATM. Daily dam operations take place in the shadow of the law of the river, but except during a multiyear drought cycle the shadow is a faint one. The Colorado River Basin Project Act directs the Secretary of Interior to develop coordinated operating criteria for Hoover and Glen Canyon dams to balance reservoir levels each year. These criteria are subject to three statu- tory priorities that protect downstream 1922 compact rights and maximize the amount of carryover storage to meet the upper basin's delivery obliga- tions. The Bureau of Reclamation's current operating criteria attempt to maintain Lake Powell at 3,490-acre feet the minimum level at which hy- droelectric power can be generated and to hold Glen Canyon Dam releases to 8.23 million acre feet annually, except when the active storage forecast for Lake Mead is lower or when increased releases can either serve domes- tic and agricultural beneficial uses or prevent Lake Powell spills. Monthly release targets try to achieve the annual operating criteria, but hourly sched- ules, although set to meet the monthly target, "are heavily influenced by the power demands and minimum flow requirements" (U.S. Department of the Interior, 1988, p. D-18. This allows higher releases in the peak winter and summer demand months. CONCLUSION The law of the river is not a barrier to changes in the operation of Glen Canyon Dam. As stated above, the many compacts, international agree- ments, treaties, judicial decisions, statutes, and administrative practices which together form the law of the river neither mandate nor constrain alterations in the day-to-day management of the river to accommodate new and emerg- ing values. Current opposition to change has developed as a consequence of WAPA contract expectations supplemented by constituency perceptions that the dams will provide revenue for future basin development. Modification of the operation of the dam, if mandated by Congress or as a result of the National Environmental Protection Act (NEPA) and GCES process, will not be easy because of these expectations. All users, however, share some risk of modification of their rights, and power contracted rights are no less vulnerable to reasonable modification than are other rights. Neither the Constitution nor the law of the river grants invariable rights to perpetual federal subsidies. Furthermore, if one is to believe the rhetoric of
26 COLORADO RIVER ECOLOGY AND DAM MANAGEMENT the Department of the Interior and the Bureau of Reclamation, developing the river in the interest of all the people is best served by providing for multipurpose values rather than single-purpose uses. REFERENCES Baker, R. 1985. Conservation Politics: The Senate Career of Clinton P. Anderson. Albuquer- que: University of New Mexico Press. Bloom, P. 1986. "Law of the River: Critique of an Extraordinary Legal System." In Gary D. Weatherford and F. Lee Brown (eds.), New Courses for the Colorado River. Albuquerque: University of New Mexico Press, p. 139-154. Carlson, J. U., and A. E. Boles, Jr. 1986. "Contrary Views of the Law of the Colorado River: An Examination of Rivalnes Between the Upper and Lower Basin States." 32 Rocky Moun- tain Mineral Law Institute, 21-1. Clyde, E. 1986. "Institutional Response to Prolonged Drought." In Gary D. Weatherford and F. Lee Brown (eds.), New Courses for the Colorado River. Albuquerque: University of New Mexico Press, 109-138. Fradkin, P. 1984. A River No More: The Colorado River and the West. Tucson: The University of Arizona Press. Getches, D. 1985. "Competing Demands for the Colorado River." 37 University of Colorado Law Review, 413. Getches, D., and C. J. Meyers. 1986. "The River of Controversy: Persistent Issues." In Gary D. Weatherford and F. Lee Brown (eds.), New Courses for the Colorado River. Albuquerque: University of New Mexico Press, p. 51-86. Goslin, I. V. 1978. "Colorado River Development." In Dean F. Peterson and A. Berry Crawford (eds.), Values and Choices in the Development of the Colorado River Basin. Tucson: The University of Arizona Press, p. 18-60. Goulieb, R. 1988. A Life of Its Own: The Politics and Power of Water. San Diego: Harcourt Brace Jovanovich, Publishers. Hundley, N., Jr. 1986. "The West Against Itself: The Colorado River- An Institutional His- tory." In Gary D. Weatherford and F. Lee Brown (eds.), New Courses for the Colorado River. Albuquerque: University of New Mexico Press, p. 949. Ingram, H. 1990. Water Politics: Continuity and Change. Albuquerque: University of New Mexico Press. Mann, D. 1975. "Political Incentives in U.S. Water Policy: Relationships Between Distnbu- tive and Regulatory Politics." In Matthew Holden, Jr. and Dennis L. Dresang (eds.), What Government Does. Beverly Hills: Sage Publications, Inc. Martin, R. 1989. A Story That Stands Like a Dam: Glen Canyon and the Struggle for the Soul of the West. New York: Henry Halt and Company. McCool, D. 1987. Command of the Waters: Iron Triangles, Federal Water Development and Indian Water. Berkeley: University of Califomia Press. Meyers, C. 1967. "The Colorado River." 19 Stanford Law Review, 1. Meyers, C., and R. Noble. 1967. "The Colorado River: The Treaty with Mexico." 19 Stanford Law Review, 367. Miller, T., G. Weatherford, and J. Thorson. 1986. The Salty Colorado. Washington, D.C.: The Conservation Foundation. Palmer, T. 1986. Endangered Rivers and the Conservation Movement. Berkeley: University of California Press. Reisner, M. 1986. Cadillac Desert: The American West and Its Disappearing Water. New York: Viking Press.
Stepped W. 1933. Be>~ '~ ~~A ~~ Boston: Houghlon ~~ Co. Stratton, Of and P. Sigh. 1939. ~e EcAo Boat If. We ~ler-universby Case Program No. 46. Covertly ~ Alabama Peso Conk, D. 1987. "One Oven Tree Sovereigns: radian Ed Serape Waler Rugby" 22 ~~ ~ Afar ~~ I, 63 1. Tad~k, D. 1989. "Symposium ~"oducd~: New Challenges 10 Sale Water AU=adon Slew eighty/' 29 Aft' ~~ '~t 331. u.s. Department of me Flexor. 1988. G/~ ~~ ~v-~Z If: Fi~'R~. Up. D~a_m ~ me agog Bureau ~ Red_~i~. 198& ~^_f~ ^~ fig Fawn.
