It may be legal, but it’s not fair. That’s the state of a current wave of water problems in the west. 

UNM Utton Center Writer-In-Residence and Water Policy and Law Expert John Fleck says it’s as simple as that when it comes to California and the Colorado River.  

“This has been an issue that's been simmering for a long time. It clearly was lurking in the background,” Fleck said. “California's unwillingness to compromise and agree to share shortages on the Colorado River has really been jeopardizing our ability to maintain the health of the system.” 

In a New York Times guest essay, Fleck highlights a problem among states that most people are taught how to solve as children: share. 

“Now, what California owes to the West is more than California has expressed, a willingness to contribute. I make a moral argument that California has a moral obligation to share in these shortages,” he said. 

The Colorado River works hard to provide for tens of millions of people across seven U.S. states–California, Arizona, Nevada, Colorado, Utah, Wyoming and New Mexico – and two in Mexico – Sonora and Baja. However, as is the case for countless water sources in the U.S., its levels have been dangling dangerously low. 

So why is it that in one new proposal to limit water usage for these states, California wants to take a 17% cut, while Arizona takes a roughly 50% cut? That’s because it’s the Golden State’s idea–more specifically, the Colorado River Board of California’s. 

“In the current Colorado crisis, California is really insisting on maintaining its priority rights and asking other states, and in particular, Arizona, to bear the brunt of the burden of climate change, and the law may be on their side,” Fleck said.  

As Lake Mead, Lake Powell and the Colorado River Basin as a whole hit record lows, the other six states sharing these resources, proposed for California to take more of the burden. This would be the go-to plan when these lakes hit the worst-case scenario.  

“It may very well be that California does have an entitlement to a substantial share of water,” Fleck said. “But increasingly the laws, because they were written in a different time, are no longer adequate to deal with the water allocation challenges that we face under climate change.” 

Under their proposal, the coalition requests California take a cut of 18 to 32% from the Colorado River. Arizona, which relies on the Colorado River for a third of its supply, would take 21% to 45% of the blow, and Nevada would lose 8% to 22%. This would add up to millions of acre-feet per year, to save the lakes before dead pool level–that is, when water can’t be pumped to cities and farms. 

“These six states made this public, and shared to the federal government the plan to essentially share in the pain of climate change,” Fleck said. “California would not join in and sent its own plan, which really dramatically pushes the burden of climate change on others.”  

California historically has higher-priority water rights than the other states. When its neighbors composed its plan for the Bureau of Reclamation, the Colorado River Board of California pointed that out. Its present and future defense of why their needs are top dog, comes from a document now 100 years old–the Colorado River Compact.   

“Increasingly, it seems to me a basic question of fairness. We need to collaborate to share the shortages imposed on us by climate change, rather than fighting over it. Trying to insist on a legal entitlement that pushes the burden of climate change onto others just feels wrong to me.”  – John Fleck

The 1922 agreement prioritized states on the upper side of the basin, as well as California’s needs. It allocated its residents and farmers the largest share of the water, a rule which has remained unchanged since. 

“The reasoning is: ‘the law gives us an entitlement to this water. We have a senior priority to this water. The way to allocate climate change is to just use the old laws and impose the burden of climate change on the junior priority holders.’ That's their argument. So it's not about population, it's not about need,” Fleck said. 

It also doesn’t help the problem that California invests a lot of time, energy and water into alfalfa plants in the Imperial Valley. This drought-resistant plant can thrive the same in other states, or at least be grown slightly less by California farmers. 

“We grow a lot of alfalfa all over this country, so our nation's food supply would not be impacted by a reduction in alfalfa. It's a good crop at the margin that we can reduce the acreage of when our water is running short, and now is the time we need to do that. We need to grow less alfalfa,” Fleck said. 

He understands, however, the economic impact of this crop, not just for the state, but for those who grow it. Alfalfa is estimated to generate $1.8 billion from its millions of tons sold each year. 

Those are honest, hardworking farmers and communities that depend on this for their livelihood. But we just can't afford it anymore. There will be suffering all across the West because of climate change and there's water.  

However, despite what’s written, and the test of tradition, Fleck says it’s time for a change

“There will be suffering all across the West because of climate change. Right now, there's water, but the only way we can get through this is if we spread the suffering and share in a way that feels fair and equitable,” he said. “What California's doing now just violates that test of our basic sense of fairness.” 

There is no formal agreement for the future of water usage for the seven western states, but the divide, Fleck says, needs to close before it’s too late. That will likely require some established protocol at the national level. 

“This is being sorted out now. The governance community is trying to sort out where the floor is and what that limit might be,” he said. 

It’s important to know, Fleck says, as a California native, it’s not an active choice of the Board, or state leadership to be selfish. It’s a lack of understanding. Not embracing an 18% cut now, could mean seeing something unfixable, not just for Arizona but all states in the compact.  

“This is a really hard argument for me, as a native Californian, to make. But we have this long standing tradition in New Mexico to share shortages in water, and that's what it's going to take,” he said. “If we have one community hogging all the water because they may have a legal right to hog it, that doesn't make it any fairer.” 

It’s also representative of a fight creeping up for New Mexico, in the next few years, between it, and upper basin states, and why certain water sharing laws may need to be dusted off. 

“There is a similar law, similar legal structure that could very well place a similar burden of climate change on New Mexico, so it's a really important argument for us here in New Mexico,” Fleck said. 

Once there is an agreement made between these states, signed and delivered at the federal level, it will still come down to the people who reside in these communities. Fleck remains hopeful, however.  

“We have demonstrated the ability to use less water and still have vibrant, thriving communities with a lot less water than we now use, but one of the critical pieces of this is collaboration and sharing of shortages,” he said. 

Fleck recently co-edited and helped publish the New Mexico Water Policy and Infrastructure Task Force. Read about the future of the state’s water conservation and the research underway to protect those episodes at the Utton Center

Take a look at Fleck’s full op-ed in The New York Times.