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Defenders Magazine
Just Add Water
A Once-Vibrant Ecosystem is Fighting for Life at the End of the Colorado River
We slip into our canoes and glide out onto a shimmering, watery miracle.
With us on the water that soft desert evening are hundreds of thousands of waterfowl, migratory ducks and geese that have learned to winter here on the marsh. From hiding places in the dense cattails, Yuma clapper rails fill the marsh with their staccato calls.
This marsh, the Ciénega de Santa Clara, is one of the most spectacular places for wildlife on the continent. Its 50,000 acres of cattails, lagoons and endangered species are found in Mexico’s portion of the Colorado River delta, just northeast of where the 900-mile-long river empties into the Gulf of California. José Campoy, the director of the internationally recognized Biosphere Reserve that includes this marsh, calls it “the most important wetland on the entire Colorado River watershed." It is no exaggeration. The Ciénega — the word means “hundred waters" in Spanish — is the largest wetland remaining in what was once a lush, nearly two-million-acre ecosystem.
The miracle is that the Ciénega is here at all.
Few places on the continent have been more badly abused and neglected than the Colorado River delta. For fifty years the United States went on a rampage of dam building to supply its booming southwestern cities with water and electricity, irrigate its farms and control spring flooding. About 100 dams and diversions sucked the water out of the river, leaving barely a trickle flowing through the once-teeming delta and turning it into a salted-out desert wasteland. Few Americans gave a second thought to the river’s fate once it crossed the border with Mexico. But it was an environmental catastrophe.
The Ciénega is now a symbol of the astonishing resurrection of the dead delta. It is proof that there is still life in the delta — life worth fighting for.
It’s also an accident. The Ciénega was created when the U.S. Bureau of Reclamation needed to get rid of brackish “waste" water and began dumping it in the desert in Mexico. The forests and estuaries of the delta also benefited from huge floods released into the river from behind dams during the El Niño years of the 1980s and 1990s.
No one tried to restore the delta. It was just a matter of adding water. Nature did the rest.
With its return has come an unprecedented interest in this region by both Mexican and American scientists and environmentalists, who found a new wealth of ecological opportunity.
The Ciénega de Santa Clara, for example, was found to be a refuge for the world’s largest population of the endangered Yuma clapper rail and also harbors black rails, southwestern willow flycatchers, burrowing owls, brown pelicans, marbled godwits and dozens of other species.
The new limelight has also exposed, unfortunately, a fair amount of injustice.
The area is home to many people left high and dry when the river was dammed. About 200,000 people live in 1,127 small delta pueblos and ejidos (communal farming villages), largely outside of the big cities and farms that have all the rights to pull water from the river for drinking and agriculture. One of the worst cases of environmental injustice in the area involves the Cucapá people in Mexico. They are “the people of the river," yet have little waterleft to sustain their subsistence hunting, fishing and agriculture. The reduction in river flows has endangered their culture, and what was once a vibrant community now numbers only about 300 people.
This beautiful desert evening I share a canoe with Bill Snape, vice president for law and litigation with Defenders of Wildlife and a leader in the effort to protect these ecosystems and finally guarantee the fragile recovery. He is involved in lawsuits both to increase the water flows to the delta and to improve the plight of the Cucapá. He faces an uphill battle. The only way to guarantee water for the delta is to change the way the entire Colorado River is managed.
Snape is optimistic. “The [current situation in the] delta is one of those rare opportunities. It’s an historic moment," he says. “It’s not just a chance to make international law. It’s that no one cared about the delta just a few years ago. We have a chance to find a legal mechanism to really help it."
Astonishingly, delta advocates like Snape have met with a level of success that no one would have imagined possible even a decade ago. Wringing water for any purpose from the complex system of law that governs the river’s management – known as “the law of the river" —is a herculean task (see sidebar at bottom of story).
Yet because the delta offers such important possibilities for ecological restoration, it has moved to front and center in the struggle to incorporate conservation values into the river’s management.
In recent decades a number of environmental laws, which include the Clean Water Act, the National Environmental Policy Act (requiring environmental impact statements) and the Endangered Species Act, have become part of the law of the river, more or less indirectly. According to Biosphere Reserve director Campoy, there are about 50 endangered species in the delta ecosystem. About half of them are shared with the United States. The question is, just how key will the Endangered Species Act be to the survival of the delta ecosystem?
In a major effort to incorporate the Endangered Species Act directly into the management of the river, state and federal agencies developed the Multiple Species Conservation Program (MSCP) in 1995. The ostensible goal of the MSCP is laudable: to develop a region-wide, ecosystem approach to guide river operations over a 50-year period, accommodating both human economic needs and the Endangered Species Act. It is guided by a steering committee of 36 representatives from states and federal agencies, plus water stakeholders — including, originally, Defenders, the Center for Biological Diversity in Tucson and two other environmental groups. But another goal of participants is to set up a system of working with endangered species protections that they can bank on – in other words, they want guarantees that they won’t get sued for their actions by environmentalists for at least the next 50 years.
Environmentalists originally wanted the delta ecosystem included in the MSCP, arguing that the delta and many endangered species straddle the international border and are affected by U.S. water management decisions. The states resisted, however, claiming their authority ended at the international border. David Hogan of the Center for Biological Diversity says the conservationists tried to work out a compromise in which there would at least be parallel studies on endangered species in both countries. According to Hogan, they thought they’d worked out a deal that would make the delta an unofficial part of the process.
The matter came to a vote in November of 1998. “None of the states would go with us," says Hogan. “We’d been played. All the environmental groups resigned on the spot." The MSCP continues on its course without environmentalists’ contributions.
“The result is our double strategy," says Hogan. “We hit ‘em over the head with a big stick, plus a carrot for what we want." A lawsuit under the Endangered Species Act is the stick. An amendment to the 1944 Water Treaty between the United States and Mexico, which officially established the allocations of the river’s water, is the carrot.
On June 28, 2000, Defenders of Wildlife filed suit in the United States District Court for the District of Columbia against the Department of the Interior and other federal agencies. Joining in the suit are the Center for Biological Diversity and six other public interest organizations — four of them in Mexico. Beyond complicated legal issues and maneuvers, the lawsuit is an effort to apply definitively the Endangered Species Act to bi-national environmental issues.
The lawsuit maintains that there is nothing in the Endangered Species Act that suggests its reach should stop at the border. The law clearly requires federal agencies such as the Department of the Interior and the Bureau of Reclamation to make positive efforts to conserve endangered species and to “mitigate" or compensate for any harm they cause. The suit contends that the federal agencies are not absolved of their duty to conserve endangered rails and flycatchers and other endangered species just because a border intervenes. “The U.S. government has illegally ignored the impact of U.S. dam operations and diversions along the lower Colorado River upon U.S.-listed endangered species in Mexico," Snape says.
Specifically the suit demands that the Bureau of Reclamation “consult" with the U.S. Fish and Wildlife Service on these endangered species in Mexico. It’s exactly the compromise Hogan says they’d tried to work out originally with the MSCP. Arguments were presented in court in 2001. At press time no decision has been reached.
Snape admits that the real solution to the delta’s problems is not this lawsuit, which will not secure water for its ecological restoration. To secure water for transboundary transfers, nothing less than an amendment to the 1944 Water Treaty is required.
In May 2000 then-Interior Secretary Bruce Babbitt signed a joint resolution with Mexican Secretary of the Environmental and Natural Resources Julia Carrabas pledging cooperation and redoubling of efforts to improve conservation in the delta. The International Boundary Waters Commission (IBWC) and its Mexican counterpart, Comisión Internacional de Limites y Aguas (CILA), then drafted a “conceptual minute," the first crucial step to a full-fledged amendment to the 1944 Water Treaty. The groups affirmed that “the two countries may seek water and seek to ensure its use for ecological purposes in . . .Colorado River delta" and defining a “bi-national task force" to conduct systematic studies and to determine how much water is needed and how it might be provided.
This was a groundbreaking achievement for the delta. After a century of neglect, the delta was legally recognized, and the goal of transboundary water deliveries for the delta’s ecological restoration was explicitly legitimized in the law of the river.
Unfortunately, the Bush administration has not followed up on the issue. “The issues of bi- national cooperation with Mexico and the ecological restoration of the delta both clearly rank at the bottom of Interior Secretary Gale Norton’s priority list," says Defenders’ Snape.
Further, the states generally oppose providing water for the delta. In their response to the Endangered Species lawsuit, the states argue that the United States has no jurisdiction over water allocations in the sovereign state of Mexico. And according to the water stakeholders, the delta is exclusively Mexico’s concern. “There’s no problem with the delta," Tom Levy, an engineer with Coachella Valley Water District, said on a panel on the law of the river in Tucson. “We solved the problem in 1944. It’s Mexico’s problem."
Mexico has, in fact, made significant progress in protecting the ecological recovery in the delta. In 1993 Mexico created the biosphere reserve. There is a long list of bi-national environmental agreements along the border between the U.S.and Mexico. In spring 2002, the National Human Rights Commission in Mexico ruled the environment in the delta must be improved to benefit the Cucapá Indians. Defenders has participated in this legal action in Mexico as part of an effort to exert legal pressure on the Mexican as well as the U.S. government. It’s now time, as Bill Snape puts it, “for the Mexican government to step up for the delta."
But despite the progress, the outlook for the delta is uncertain. Scientists now say we are entering a period of severe drought along the Colorado River. Combine that with the intense development pressure and population growth in the desert Southwest, and tensions — and political threats — are only going to worsen.
Most notably, recent complex maneuverings to help California find more water mean that the reservoirs behind the river’s dams have been drawn down under a revised definition of “surplus criteria." As Snape and I paddle our canoe over the Ciénega in the delta, he explains the consequences for Mexico of this revision: With the reservoirs lowered, the chances that any water will spill over and flow into the delta, even in times of flood, will be slim. This could very well doom the fragile rejuvenation of the past decade.
Even the glorious Ciénega is vulnerable. As Robert Johnson, director of the Bureau of Reclamation for the Lower Colorado River, explained ominously, “The water in the Ciénega in Mexico actually belongs to the United States." There is no legal protection for the Ciénega. The U. S. could reclaim this water at any time, and indeed has proposed redirecting it to a desalination plant for use north of the border.
The sun sets behind the Sierra Cucapá in a blaze of desert orange. Despite recent successes, the delta could easily slide back into the devastation of the last century. “They should be terrified in the delta," Snape concludes. “And no one has a guaranteed solution. The only hope may be a positive result from our lawsuit on endangered species. And a minute to the treaty."
THE LAW OF THE RIVER
Water means wealth in the West’s desert landscape. The “law of the river," a body of law that governs all aspects of the Colorado River, divides up the water — and the wealth. It creates the winners and losers in a high stakes game of money, power and empire building. That’s why many view the law of the river with nearly biblical reverence. Changing this law is an epic effort in the face of powerful and firmly entrenched interests.
According to Robert Glennon, a law professor at the University of Arizona, the law of the river is really “a motley collection of contradictory, ad hoc, and vague legal positions." But at the heart of this collection of treaties, compacts, laws and court decisions are two sets of documents. These documents divided the waters among states and nations. Unfortunately, the people who wrote these documents did not under- stand — or chose to ignore — one key fact about the river: its volume. They made big miscalculations. They ignored water for the environment then, and made it hard to find now.
The first set of documents is the 1922 Colorado River Compact and the 1928 Boulder Canyon Project Act, considered as one. The 1922 Compact divided the U.S. portion of the river into two basins — the Upper and the Lower Basins, divided at Lee’s Ferry, Arizona . Each basin was awarded 7.5 million acre feet (maf) of Colorado River water. The Lower Basin was also given another 1 maf to take into account the water collected from its own watershed. An acre foot is a basic phrase in “water speak." It means the amount of water needed to cover an acre of ground to the depth of one foot. It’s about 326,000 gallons — enough to take care of a family of four for a year.
The 1928 Boulder Canyon Project Act quantified the amount of water the Lower Basin states receive: 4.4 maf for California, 2.8 for Arizona, and only 0.3 maf for then-unpopulated Nevada . Plus it authorized construction of the first great dam on the river, the Boulder Canyon Dam, later renamed Hoover.
The second major set of documents is the 1944 Water Treaty between the United States and Mexico, along with its many subsequent amendments. This treaty was the culmination of 90 years of struggle and negotiation between the two countries. In this treaty, the United States promised to deliver 1.5 maf of water to Mexico per year, plus another 0.2 maf of surplus if available. By this treaty, the United States gets 90 percent of the water, Mexico about 10 percent.
The biggest shortcoming of the laws is that those who wrote them dramatically overestimated the amount of water actually in the Colorado River. They allocated a total 17.5 maf to seven U.S. states and to Mexico. That’s before the evaporation and leaks in the dams and diversions, which remove another 2.5 maf per year.
That brings the total amount of water committed per year to 20 maf. Studies of tree rings and clam growth by University of Arizona scientists, however, show that over time the river flow averages only about 13 maf of water per year. From the start, we were overdrawn at the river bank to the tune of 7 maf — or about 50 percent.
Yet the desert culture in the West continues its aggressive and reckless pursuit of growth. Already 23 million people in the Lower Basin states live on Colorado River water. That number is projected to reach 38 million people by 2020. California has already surpassed its water allotment and has begun drawing down water levels from reservoirs along the river.
What has so far saved this impossible bargain is that some states have not yet reached their maximum allocation, particularly in the Upper Basin. So there is still water left over in the system for environmental purposes. But this water — and the chance to save the delta ecosystem — may evaporate at current growth rates. The current severe drought in the region is a stark reminder of the precarious situation for both people and wildlife in this desert ecosystem.
The second major shortcoming of the laws is that the allocations largely ignore wildlife, habitat and the river itself as a natural (not an engineered) entity. The historian Donald Worster says in his book Rivers of Empire that the Colorado River was subjected to a regime of “total use." The Secretary of the Interior from 1912 to 1921, Franklin Lane, put this philosophy most memorably when he said it was a crime to let one drop of water flow unused to the sea. According to Defenders of Wildlife’s Bill Snape, “Wildlife has always come last."
