Episode 13: November 16th, 1922

A century ago in Colorado River Compact negotiations: The central question is settled

By Eric Kuhn and John Fleck

On Nov. 16, 1922, the representatives of the seven Colorado River Basin states and federal lead negotiator Herbert Hoover settled what is, from today’s perspective, the most important element, of the Colorado River Compact.

Holed up a century ago at Bishop’s Lodge outside Santa Fe, New Mexico, they had come to agreement on dividing the river into “upper” and “lower” basins, with some water for each, a feature taken for granted in river management in the 21st century but new to their thinking a century ago. But they were at a stalemate on how much water the upper states would be obligated to send to the lower states.

Before adjourning the previous day’s meeting, Hoover had put a compromise proposal on the table – the Upper Basin would deliver 75 million acre-feet every consecutive ten years with a four million acre-feet minimum annual delivery. This was ten million more than the Upper basin’s 65 million acre-feet offer and seven million less than the 82 million acre-feet that the Lower Basin said they would accept.

During the 18th meeting the commissioners from both basins accepted Hoover’s offer and went far beyond that, agreeing to a set of broad principles that could be included in the compact.

The Fantasy of a Surplus 

They also made one major change of direction. Through the end of the 17th meeting, the Commission had been focused on dividing the entire river. Carpenter had first suggested a 50/50 split at the Yuma gage (near the border with Mexico). In the most recent meetings, their focus had turned to dividing the river at Lee’s Ferry. But late Wednesday night, in executive session, or via discussions Hoover had with the individual caucuses, the commission decided to divide the river three ways – a piece for the Lower Basin, a piece for the Upper Basin, and a third surplus pool that would be apportioned at a future date.

Hoover put it this way – “In our discussions yesterday we got away from the point of view of a fifty-fifty division of the water. We set up an entirely new hypothesis. That we make, in effect, a preliminary division pending the revision of this compact. The seven and a half million acre-feet of flow rights are credited to the South, and seven and a half will be credited to the North, and at some future day a revision of the remaining water will be made or determined.”

The technical basis for a three-way split was as follows: The estimated water supply available from the river below Yuma was believed more than 20 million acre-feet annually. Arthur Powell Davis estimated that existing and future consumptive uses in the Upper Basin would total 6.5 million acre-feet annually. In the Lower Basin his estimate was 7.45 million acre-feet, 5.1 on the mainstem and 2.35 on the tributaries.

Allocating 7.5 million for each basin would cover their needs and leave a surplus of 5-6 million acre-feet to be doled out in the future. The language the Commission discussed showed that their intent was not to divide water, but rather to limit appropriations within each basin – “during the term of this compact appropriations may be made in either division with equality of right as between them up to a total of 7,500,000 acre-feet per annum for each division.”

Expanding “The Basin”

The Commission discussed ten basic principles including defining the Colorado River Basin as the hydrologic drainage basin plus places within a basin states, but outside the drainage area where water could be legally used.  This made it clear that under a compact transbasin (transmountain) projects would be legal. This was crucial to negotiators forUtah, Colorado, and California. The Commission also agreed on the priority of uses. Domestic (broad definition) and agricultural uses would be superior to power generation and all superior to navigation purposes. It also agreed that the burden of a future treaty obligation would be equally shared between each basin.

The commissioners couldn’t agree on detailed language for all the principles, but still the 18th meeting ended on a euphoric note.  They all agreed that it was time to for Chairman Hoover to appoint a drafting committee.  Hoover appointed Carpenter, Steven B. Davis, Arizona Legal Advisor Richard Sloan, California Legal Advisor R.T. McKisick, and Reclamation Service Chief Counsel Attomar Hamele. Carpenter Asked that Hoover be an ex-officio member of the committee and Hoover accepted.

The drafting committee met on the afternoon of November 16th and most of the day on both November 17th and 18th.