The Law of the River May Meet Its Match

Willa Cather, the author of “Death Comes for the Archbishop,” would have appreciated the fine irony of the historic meeting that took place recently in Santa Fe. Her hero, the Archbishop, knew a thing or two about power. “He judged that the day of lawless personal power was almost over, even on the frontier,” she wrote, “and this figure was to him already like something picturesque and impressive, but really impotent, left over from the past.”

In 1922, the great powers of the arid West met at Bishop’s Lodge (now a resort) near Santa Fe to sign the Colorado River Compact. A photo commemorating the event still hangs in the lodge, reminding viewers of the power of then-Secretary of Commerce Herbert Hoover and Harry Chandler, then-publisher of The Los Angeles Times. In 1998, the meeting of potentially similar consequence was held, not at the seat of luxury and authority, but in the pointedly downscale offices of a Santa Fe-based environmental group, Forest Guardians.

“Right now,” says Forest Guardians’ John Talberth, “the so-called ‘law of the river’ is a good old-boy network of irrigators and industry users who play God and don’t think the environmental laws apply to them. I hope this is a bucket of cold water in their faces.”

“This” is a Forest Guardian challenge to the river compacts, and the commissions that administer them, for the Rio Grande, the Upper Colorado, the Pecos River and Costilla Creek. Over the past few years, federal agencies throughout the Southwest have learned to fear and loathe Forest Guardians, which has a stunning track record of forcing the federal government to obey the letter of its own environmental laws. The environmental group’s weapons are the same ones that virtually have shut down timber harvest (and threatened to shut down grazing) on public lands in the entire region: the Endangered Species Act, the Clean Water Act and the National Environmental Policy Act. Their next target is the law of the river, which has been called “the Magna Carta of the West.”

Beginning in the 1920s and on through the 1940s, both Congress and state legislatures ratified the four river compacts. In doing so, they gave a mixed legal blessing to the contracts that mete out how much water each state gets and how much it must deliver to its downstream neighbors. The compacts’ voting members are mostly state water engineers. Like the Colorado River deal, the Rio Grande Compact was signed in Santa Fe, at the La Fonda Hotel, in 1938. But the problem is that the compacts were signed long before the major federal environmental laws of the 1960s and 1970s were passed. Accordingly, none of them provides for minimum in-stream flows to protect flora, fauna and ecosystems dependent on the rivers.

Now this unfortunate sleight-of-hand is out in the open. Nine plants and animals have slid into threatened or endangered status. Furthermore, water depletions caused by massive dam and diversion projects prevent the rivers from dispersing and diluting pollutants, and the dams disrupt seasonal flooding events, which formerly provided nutrients and habitat for native fish, cleansed riparian zones of debris and replenished crucial wetlands. “These compacts were created in the Dark Ages of Western water management,” says Talberth, “when rivers were sliced up like roast beef in complete disregard for water quality, fish, wildlife and the ecology of river systems.”

Those unfamiliar with the arcana of Western water have little concept of the undemocratic power of the handful of Goliaths who sit at the controls. Appointed rather than elected, they are similar to those in the photo at the Bishop’s Lodge. But those seated at the table at the Forest Guardians’ meeting could not have been more different.

There was Ray Frost, a Southern Ute Indian. He pointed out that there are 28 Indian tribes along the Colorado River. Not one of them ever had a say in the compacts. “We want to leave our water in the river for now, until we need it,” Frost says. “We’re interested in banking our water and leasing it to potential buyers.”

Seated next to him was the only person in the group who was wearing a tie and who looked like he would have been comfortable among the old water buffaloes, former Colorado state water engineer Jeris Danielson, now a consultant. Danielson said that Colorado should market its unused water rather than use it to spur yet more development in a state where growth far outstrips government’s powers to provide even basic services like highways. “Water markets,” he says, “can help address the many environmental problems that the river compacts attempt to ignore.”

Possibly the most impressive person at the meeting was ex-Federal Bureau of Reclamation river scientist Dave Wegner, now with the Glen Canyon Institute, a little nonprofit dedicated to the big task of draining Lake Powell. After 22 years of working to restore native fish to the Colorado, Wegner recently quit his job in disgust, claiming that the government was not serious about protecting endangered species on a scale that makes ecological sense. The various competing agencies thrive on stalemate, he said, “and they cleverly fragment the environmental community as well.”

What is the solution? Sue George, a water attorney for Defenders of Wildlife, talked about her water plan for the future of the middle Rio Grande. Gary Boyce, a rancher near the headwaters of the Rio Grande, described his “Stockman’s water project,” which challenges the power of the water establishment by pumping ground water in a renewable fashion and marketing it or making it available to solve endangered-species problems. David Orr, from the Sierra Club’s 50,000-member Los Angeles Chapter, said that his group wanted to restore the ecological health of the Colorado River delta.

Forest Guardians’ Sam Hitt summed it up: “We want more water in the river. We want river basinwide restoration and recovery plans for endangered species.”

Will Forest Guardians’ impudent challenge work? Will they amend the Magna Carta of Western water? The federal government is taking their challenge so seriously that 15 of its top river managers are coming to Santa Fe for another meeting later this month, where they will try to persuade Forest Guardians and its allies to drop their lawsuit. Don’t count on the toughest little group in the Southwest to back down.