LAS VEGAS —Negotiators locked in a showdown over how to share the ever-shrinking Colorado River offered little optimism this week for reaching an agreement anytime soon, even as they acknowledged one potentially unifying goal: Keep management of the waterway out of federal court.
Tensions between top officials from seven Western states spilled into public view at the annual Colorado River Water Users Association conference, as representatives sought to showcase competing plans that would decide which states must absorb the pain of cuts from a waterway projected to further diminish as temperatures rise and precipitation drops.
State negotiators — along with outside observers keenly following the talks — repeatedly talked, too, about the unattractive possibility of their debates ending up in federal courthouses for decades to come.
Federal and state leaders worry that a major lawsuit, or even a spate of lesser challenges, could shackle management of one of the nation’s major waterways, which supports key agricultural regions and major cities, including Los Angeles, Denver, Phoenix and Salt Lake City. But with a late 2026 deadline looming and state officials standing firm on their positions, some observers speculated that any final deal may not be satisfactory enough to avoid legal fallout.
“When the parties are so far apart, it seems to me, predictable that litigation will come under discussion,” said former Interior Secretary Bruce Babbitt, who served during the Clinton administration.
Babbitt, also a former Arizona governor who has charted the Colorado River’s course since the 1970s, told POLITICO’s E&E News that it’s unclear whether states are simply exchanging threats in a bid to motivate each other to a resolution or really preparing to stage a legal battle at some level.
“I think there’s some of both in these threats,” Babbitt said.
A series of multistate agreements that govern the Colorado River — including which states must take reductions in their flows when the waterway runs low — will expire at the end of 2026.
State officials from the two regions that share the river have spent a year attempting to reach agreement on how to dole out long-term reductions, a necessity as more than two decades of drought have ravaged the river and reduced its flows by an estimated 20 percent.
Researchers suggest that in a worst-case scenario the impacts of climate change could reduce the river an additional 20 percent by midcentury — putting at risk the water supply for more than 40 million individuals and 5.5 million acres of farmland.
But the states — Colorado, New Mexico, Utah and Wyoming in the Upper Basin and Arizona, California and Nevada in the Lower Basin — have split over key pieces of the operating plan.
The Upper Basin states, which rely on snowpack and precipitation for their half of the river, want to see an acknowledgment of water that fails to materialize for their communities during dry years — and the cuts they are therefore forced to make. Those states also want the Lower Basin — including California, which claims the largest and oldest water rights — to take on all the additional cutbacks needed in extremely dry conditions.
The Lower Basin states, which rely almost exclusively on releases from federal reservoirs at Lake Powell and Lake Mead to supply their share of the river, want the Upper Basin states to also use less water under those extreme circumstances.
The two regions are also split over how to evaluate the health of the waterway, including whether a trio of reservoirs in the Upper Basin should be taken into account, or if only the amount of water in the two largest reservoirs should dictate cuts.
The Interior Department and Bureau of Reclamation in November unveiled a series of plans it could consider, but drew the ire of state negotiators for failing to evaluate either of their proposals independently. Any final decisions will be made during the incoming Trump administration, although many involved said they didn't expect the changing political landscape would affect the politics of the Colorado River.
“The tensions are extremely high this year,” said Tanya Trujillo, a veteran water attorney and former assistant secretary for water and science at the Interior Department.
Trujillo, now the New Mexico deputy state engineer, said she could not recall a more divisive meeting of the Colorado River Water Users Association in 20 years.
“There’s been a lot of discussion of potential claims of litigation, and discussion of potential challenges that may be raised against various parties,” Trujillo said as she moderated a panel titled “Keeping the Peace Among the Pieces: The Risks of Litigation."
But Trujillo’s assessment likely came as little surprise to some of the attendees scattered across the rows directly in front of the conference room's dais: key negotiators from Arizona and California, as well as other top officials, such as Anne Castle, the Biden administration’s appointee to the Upper Colorado River Commission.
Contingency plans
Both Arizona and New Mexico are setting aside funds in the event negotiations — or the Interior’s own operating eventual operating plan — draw legal challenges, whether their own or that of a neighboring state.
“I firmly believe that none of the seven states want to go to litigation,” said John Entsminger, general manager of the Southern Nevada Water Authority and his state’s lead negotiator.
“But as we near the deadline ... at the end of 2026, if negotiations do not produce a compromise position, I think reasonable planners have to plan for that contingency,” he added.
Tom Buschatzke, director of the Arizona Department of Water Resources, first raised the specter of a courtroom brawl in September, when he requested the state set aside a $1 million legal fund.
Buschatzke has since repeatedly emphasized that his state does not “want a legal fight” and insists the state is still seeking a multistate resolution.
“I have to do my due diligence for all potential outcomes,” Buschatzke said on a panel with other Lower Basin officials. “It is the state of Arizona's position and my marching orders from Governor Hobbs to find a collaborative path forward with all the other six states and with Mexico. We're just looking for partnerships.”
In an interview, Buschatzke said that his state is not alone in preparing funds for potential legal fallout.
“We’re not the only one seeking money for litigation,” Buschatzke said, pointing to the New Mexico Office of State Engineer's recent request for $5 million for future legal expenses.
Estevan Lopez, who serves as New Mexico’s Upper Colorado River Compact Commissioner and is a former Reclamation Commissioner during the Obama administration, clarified that those funds could also be used for the state’s long-running court battles in Texas v. New Mexico and Colorado.
That case centers on a dispute over how to account for water use in the Rio Grande and underscores just how tricky it can be to resolve water fights between states in the federal courts. The Supreme Court in June rejected a settlement reached by the states, sending the case back to a special master.
But J.B. Hamby, chair of the Colorado River Board of California, said that his state is not pushing for a federal court to decide the fate of the 1,450-mile long waterway.
“Litigation is not on the mind of California,” Hamby said, while he also shifted blame to people on the opposite side of the negotiating table. “All the discussion of litigation is really emanating from increasingly extreme views coming out of the Upper Basin states.”
Hamby pointed to disagreements over how specific water use is calculated in the river basin — including provisions about the delivery of water owned by Mexico as well as how water drawn from some tributaries is counted — that could become central to a potential lawsuit.
But Becky Mitchell, who serves as Colorado’s Colorado River Commissioner, pushed back against Hamby’s assertions, adding that her office has neither sought funds for a potential court case nor prepared any legal briefs.
“There’s nothing to litigate,” Mitchell said. Still, during a panel of Upper Basin negotiators, Mitchell also revealed that the two regions had yet to meet as a group while gathered in Las Vegas.
Brandon Gebhart, Wyoming state engineer and the state’s negotiator, urged his counterparts to drop even discussions of lawsuits for the time being.
“We really need to understand that the enemy we're battling right now: It's not the Upper Basin, it’s not the Lower Basin, it’s hydrology,” Gebhart said on a panel of Upper Basin negotiators. “All of the rhetoric, the saber rattling and other distractions going on right now are bullshit. It needs to stop.”
Drowning in water law
While the mere specter of a legal challenge is a potential distraction to negotiators, several legal experts highlighted the downsides, noting that a lawsuit could drain funds and potentially stretch on for decades.
“Litigation can look like an attractive alternative, particularly if you think that the other guys aren’t offering to take their fair share of the load,” Castle, the Biden administration’s appointee to the UCRC said.
But more concerning to Castle and other water managers is the potential for a ruling that disrupts the management of the river basin, which is governed by a complex structure known as the “Law of the River.” That series of laws and regulations is centered on a 1922 compact dividing the river between the two basins.
“I think we probably all know that the Supreme Court doesn't have a deep understanding of Western water law, so we could end up with conclusions that we're not happy with and that don't advance the ball,” Castle said.
Courts prefer to answer narrow questions of law, but a watercentric case can easily slide into questions about how flows are calculated, or water is consumed and used, as well as a host of ambiguous language included in the 1922 compact and subsequent agreements.
“They're very smart people on the court,” said Jeffrey Wechsler, who currently serves as the lead counsel for New Mexico in its Supreme Court dispute over the Rio Grande, “but they don't have the kind of understanding of the details and the specifics that are necessary to craft longer term, real on-the-ground solutions.”
In addition to the decadelong Rio Grande case involving Texas, New Mexico and Colorado, which appeared to have reached an end before the Justice Department objected to the state-authored settlement, observers also pointed to the decadeslong Supreme Court battle Arizona v. California.
That 1964 decision found that Arizona had a right to 2.8 million acre-feet of Colorado River flows, refuting California's claim that it could claim those same waters. But despite that resolution, fights would linger on for decades over water allocations and tribal water rights, with a final court ruling not coming until 2006.
“California is not interested in reopening the longest case in the history of the United States Supreme Court,” Hamby said.
Climate change calling
State negotiators as a group declined to speculate on what the focus of any potential lawsuit could be, although in public remarks several appeared to suggest that the Lower Basin states could pursue a demand for their share of the river.
Under a provision of the 1922 compact that governs the river, the Upper Basin states agree that 75 million acre-feet of water — enough to completely fill Lake Powell three times over — will flow past a point below the Glen Canyon Dam called Lee Ferry over a 10-year period.
That average should provide the Lower Basin states with their 7.5 million acre-foot annual share of the waterway.
If that 10-year average were to dip below the threshold, however, the Lower Basin states could initiate a “call,” effectively forcing water users in the Upper Basin to stop tapping their share of the river and instead send it directly downstream.
That provision of the compact has never been triggered, or tested in a court of law — and perhaps more notably, has never been reviewed under a backdrop of a climate change and aridification of the West.
“The founders, signers and drafters of the compact were worried about a long-term drought that went on 10 or 20 years, they weren’t thinking about a permanent decline in flow,” said Brad Udall, a senior water and climate researcher at Colorado State University’s Colorado Water Center.
Udall noted that the compact doesn’t require the Upper Basin states to deliver water, but instead specifies that the states above the Glen Canyon Dam will not “cause the flow of the river ... to be depleted” below that aggregate level.
“We don’t know what that non-depletion obligation means in the world of climate change,” Udall said. He noted that some researchers predict in a worst-case scenario the river’s annual flows could drop to about 10 million acre-feet by midcentury, far less than the 15 million acre-feet states are currently grappling over.
An acre-foot is equal to about 328,000 gallons, enough water to support two to three families for one year or cover a football field to a depth of 1 foot.
Michael Connor, a former assistant secretary of civil works at the Army Corps in the Biden administration, suggested, however, that such a lawsuit is a far-flung idea, given that the river remains above the worst-case drought scenarios.
“We're not on the precipice of any compact call litigation at this point in time,” said Connor, who also served as Reclamation commissioner in the first Obama administration.
But in separate comments, Buschatzke, the Arizona official, suggested that the 10-year average could drop out of compliance as soon as the 2027 water year.
“We've looked at what's come out of Lake Powell and Lake Mead over the last number of years, looked at where the next couple of years might be, and added up the 10-year rolling average,” Buschatzke said of the projection.
Part of the split, Buschatzke acknowledged, centers on the calculation of water included for Mexico, which is guaranteed 1.5 million acre-feet of water under the Mexican Water Treaty of 1944 and is a burden shared by the two basins.
Although each basin is required to contribute one-half of those flows, the basins differ over how the flows are calculated. That issue has never been addressed in court.
Hamby, the California negotiator, said a legal battle could create potentially disastrous conditions, emphasizing the states remain committed to working something out.
“We don’t want to have to go litigate stuff and force these really difficult outcomes in the Upper Basin,” Hamby said, pointing to the Lower Basin’s proposal to share cuts across all states when basin storage drops below 38 percent of its capacity.
“Let’s start with splitting the baby rather than forcing the Upper Basin to take all of the pain for climate change,” he added.
Despite the continued gridlock among negotiators, Babbitt, the Colorado River elder statesman, said he sees time for a solution to emerge.
“There’s plenty of time yet,” Babbitt said, noting that despite the current stalemate and looming change in control of the White House, a deal could still occur in the next year or two. “There's this sense the emergency is here right now. It's not here now. This can go on until 2027.”
