Is the Colorado River Poised for Liberation?
As Streams Converge, the Colorado May Be Due for Policy Upheaval
As drought tightened its grip on the American West this summer, the federal government cut down the Colorado River water supply for multiple states in the Basin. These mandatory water supply cuts were the first of their kind, triggering nervous chatter throughout the country about the future of water in the West — and for good reason.
From its headwaters in the Colorado Rockies to its estuaries in the Gulf of California, the 1,400 mile long Colorado River acts as the economic, ecological, and cultural backbone of the West. Forty million people rely on the River for drinking water and countless others for irrigation, industry, and power. The Colorado River brought life as we know it to the American West, so as it dries up, that is what we stand to lose.
As the West’s water woes made nationwide headlines throughout the summer, politicians, farmers, nonprofits, business leaders, and private citizens alike brought ideas to the table on how the region’s water supply should be managed moving forward. The 100 year anniversary of the Colorado River Compact of 1922 — the first document establishing the “law of the river” — is quickly approaching, prompting talks of renegotiations and sparking bouts of political protectionism.
As political, environmental, and media pressures on the River mount, it seems as though policy change is on the horizon. This outlook is supported by the multiple streams theory of public policy. This theory suggests that contemporary political conditions have created a policy window that could ultimately result in a substantial adoption of new river policy in the Basin. When one considers the sociopolitical context of river advocacy worldwide, it becomes increasingly likely that the “Rights of Nature” legal movement will play a role in the new policy developments that multiple streams theory may predict in the Colorado River Basin.
An Explanation through Multiple Streams Analysis
The multiple streams analysis theory of public policy (‘multiple streams’) was proposed by John Kingdon in his 1984 book, Agendas, Alternatives, and Public Policies. The theory is based on the premise of Cohen et al’s “Garbage Can Model” of policymaking, which suggests that policymaking exists in a sphere that is more anarchical than linear. Within this sphere of independent decision-makers and ambiguity, Kingdon suggests that three independent categories of independent and interdependent variables exist, which he refers to as “streams” These three streams are labeled as the problem stream, political stream, and policy stream. Rarely do these streams interact, but when they do converge, a policy window may emerge. Then, with the help of a policy entrepreneur, this window can result in policy adoption.
This essay unpacks these theoretical concepts and applies them to the Colorado River case. In doing so, I argue that the logic of multiple streams may predict a vaguely optimistic political future for Western water policy. I then consider the direction that river policy is taking elsewhere in the world in an attempt to predict how the blossoming “Rights of Nature” movement may play a role in the Colorado River’s political future.
The Flooded Problem Stream
The problem stream of multiple streams consists of public issues that could be solvable via government intervention. In the case of the Colorado River, the problem stream is flooded with issues of over-allocation, climate change, and rapid population growth. Some states are being forced to cut their water supply, while others are establishing new government authorities to defend controversial diversions of the River. There is no shortage of problems facing the River, but for these problems to be considered a part of Kingdon’s “problem stream,” they must be solvable by government intervention.
Government intervention is one of the last hopes for the Colorado because of the founding principle of Western water law: prior appropriation. Prior appropriation states that an entity must divert water and put it to a “beneficial use” to establish a water right. If an entity does not put their water to an approved beneficial use, they risk losing their water right. Water rights lawyers refer to this as the “use it or lose it” doctrine.
In the desert West, water is a premium commodity; nobody wants to lose it. Therefore, water right holders are incentivized to use the entirety of their water. The largest water users in the West — farmers, water-intensive industries, and large land-owners — are incentivized not to conserve water. Only by using their entire allotment of water will they maintain a lawful right to it.
In an ideal world, the system of prior appropriation would guarantee system-wide efficiency, and very little water would be “wasted.” There are two reasons why this idealistic future is not a reality:
- In states that do not have “instream flow” laws, leaving water in the river to ensure ecological health is not considered a “beneficial use.” Consider this example: a farmer in Utah discovers a more efficient way to water his hemp field and, therefore, he does not use his full allotment of water. Logically, the farmer decides not to divert the water that he does not need. Instead, he lets it remain in the stream for the sake of the plants, animals, and humans who rely upon that stream’s health. The farmer does this for several years, only to have his water rights revoked and awarded to his neighbor who will use that water to expand his crop of alfalfa — a true “beneficial use.” Because Utah does not have “instream flow” laws, water users cannot allow part of their water right to remain in rivers in streams for the sake of ecological health without running the risk of losing that water to someone who will put it to beneficial use. Without instream flow laws, the system of prior appropriation is not sustainable. It does not leave enough water for Western rivers and streams to survive.
- Western water law encourages using the Colorado River to the extent of its capacity, but it does not include adequate measures to address the shrinking capacity that the River is currently experiencing. And how could it? When the Colorado River Compact was created in 1922; policymakers did not foresee the extent to which climate change would shrink the amount of water in the River. Recent studies show that 21st century annual Colorado River flows averaged 19% below 20th century averages, and this disparity is only expected to grow. The Colorado River is shrinking, yet water right holders are still incentivized to use every drop of water to which they have a right.
The Colorado River is overtapped because of “use it or lose it” doctrines and archaic water policies. These policies incentivize water waste on a large scale, and they cannot be solved by conservation-cognizant citizens alone. While there are things citizens could and should be doing to decrease their individual water use, it is ultimately the responsibility of the government to implement meaningful policy solutions to address the Colorado River’s overflowing problem stream.
The Meandering Political Stream
The political stream of multiple streams theory is made up of the factors that impact the politics of a constituency. National mood, advocacy campaigns, and politicians can all be aspects of the political stream. In the case of the Colorado River, the political stream consists of an interwoven framework of environmentally-minded nonprofits, growth-minded politicians, conservation-minded politicians, and a ubiquitous concern shared by citizens, politicians, and interest groups that the West is running out of water.
It is beyond the scope of this article to examine the endlessly complex political-administrative context of the Colorado River Basin, but a coalition conference that took place on the Hoover Dam this summer serves as one strong example of the politically and socially diverse stakeholders who are all invested in the future of the Colorado River Basin.
On July 15th, 2021, farmers, nonprofit leaders, elected officials, and businesses gathered at the Hoover Dam to call for a federal moratorium on new dams and pipelines in the Colorado River Basin. Concerns about water span political boundaries, as shown by the diversity of individuals who attended the 2021 Hoover Dam coalition conference. The formation of this strange bedfellows coalition is a testament to the complex vibrancy of the Colorado River’s political stream.
The Arid Policy Stream
The policy stream of multiple streams theory consists of proposed solutions to the problems mentioned above. These potential solutions are produced in policy communities, and they are narrowed down over time to produce viable policy alternatives for the problems at hand.
The policy stream of the Colorado River is not as robust as the problem stream. Many ideas about Basin-wide solutions to the ongoing drought are in their infancy, though there are many ideas about policies present at the local and state levels. The primary fissure in the policy stream of the Colorado River is between those who prioritize the development of water resources and those who prioritize the conservation of water resources.
Some communities believe that the solution to the Western drought is more water diversion and storage, hence Utah’s proposal for the Lake Powell Pipeline. However, a mounting force of academic consensus, nonprofit work, and citizen pressure has begun to prioritize water conservation over water development. In fact, the six other Colorado River Basin states threatened litigation against Utah if the state continued to permit the Lake Powell Pipeline.
The tide of the policy stream seems to be shifting towards conservation in many areas, particularly in cities like Las Vegas and Tucson, but the Colorado River Basin is far from a consensus when it comes to a new policy framework for the Colorado River. As of now, the outdated “law of the river” remains the status quo, though the convergence of the political and problem streams, along with the work of dedicated policy entrepreneurs, may create a policy window that changes that.
Opening a Policy Window
Problem and political streams are typically independent within the “garbage can” that is policymaking, though they can converge under special circumstances and create a “policy window.” This is a moment of opportunity to adopt policy changes, and it is caused by an alteration in either the problem or political stream. This alteration can come in a variety of forms, though a crisis is one of the more common ones — and the water dilemma in the Colorado River Basin is nothing short of a crisis.
Climate change has already begun to impact watersheds worldwide, and the Colorado River has not been immune to its impacts. Warmer winter air temperatures have caused dwindling snowpacks near the headwaters of the River, leading to less runoff and decreased streamflows in the springtime. Those who rely upon water from the Colorado River are experiencing the early stages of a climate crisis, with the worst effects still to come.
The media and political attention paid to the Western drought in the summer of 2021 publicized the Colorado River’s overflowing problem stream, and that attention is unlikely to wane as climate change worsens. If a crisis has the potential to open a policy window as multiple streams predicts, then it is highly likely that we are soon to experience a window of opportunity for policy adoption along the Colorado River — if we are not experiencing it already.
Who Will Paddle the Policy Stream?
A window of opportunity does not always equate to a successful adoption of policy. As a policy window opens, a “policy entrepreneur” may enter the picture. Policy entrepreneurs are an important aspect of the multiple streams framework, as they typically aid policies in their travel from the “agenda-setting” phase of policy-making to the “policy adoption” phase.
Policy entrepreneurs are advocates who aid in the “coupling” of policy problems and policy solutions during policy windows. By investing time, effort, money, and energy into the promotion of a particular policy, policy entrepreneurs can play a substantial role in whether or not a policy is put on the agenda, and, eventually, whether or not the policy is adopted.
Interest groups, politicians, lobbyists, celebrities, or private citizens could all be policy entrepreneurs, as long as they are a consistent advocate of a specific policy to address a specific problem. There are numerous potential policy entrepreneurs in the Colorado River Basin, though none have emerged as a primary entrepreneur on a national scale. Environmental nonprofits have played a substantial role in state-level policy negotiations, including groups like Western Resource Advocates, the Utah Rivers Council, EarthJustice, the Sierra Club, and many more. Private organizations and quasi-governmental organizations also have a large lobbying presence, with organizations like Imperial Irrigation District and Washington County Water Conservancy District often part of any diversion proposal or water policy discussion. Some politicians have also taken on the Colorado River issue at a national scale, including Mitt Romney and Michael Bennet, though there have not been any substantial Colorado River policies adopted at this level.
Though many policy entrepreneurs have emerged during the policy adoption stage at the state level, it is not clear who the policy entrepreneurs will be at the federal level as negotiations move forward over the next decade. The political leanings of these potential entrepreneurs will likely dictate the nature of the policy that is produced to manage the Colorado River in the face of the ongoing climate crisis and drought.
Rights of Nature: An Outcome of Multiple Streams Convergence?
As the Colorado River Basin enters a window of opportunity for political change, it is important to consider how environmental policy is evolving on a national and worldwide level. Policy solutions are often borrowed or spread, so examining the context of contemporary environmental policy could reveal some potential future scenarios for the Colorado River. It is unreasonable to describe the entire context of environmental policy in a single article, so I will briefly focus on one policy development in particular: the “rights of nature” movement.
Momentum for the Rights of Nature movement blossomed in 1972 in the wake of Justice William O. Douglas’ dissenting opinion in the Supreme Court case Sierra Club v. Morton and Christopher Stone’s “Should trees have standing — toward legal rights for natural objects,” published in Southern California Law Review. Stone’s article suggested that granting legal rights to the natural world was the logical progression within the context of rights expansion throughout history, an idea also cited in Douglas’s dissent. Nearly 50 years after Stone’s work was published, the Rights of Nature concept has been applied to natural entities all over the world and has been written into the constitutions of numerous countries.
Rivers have been one of the primary subjects of the Rights of Nature movement, likely due to the expansive role they play in human and ecological health. Affording legal rights to rivers strengthens the standing of the people that rely upon them, and offers humans another avenue to advocate for ecosystems that may otherwise be ignored in typical political and legal processes. Humans relying on jeopardized rivers have realized the power of expanding the circle of rights to natural entities, which has led to the formation of Rights of Nature laws across the world.
In 2017, the Whanganui River in New Zealand was given the legal rights of a person as part of an effort to address sewage pollution. In the same year, the River Ganges in India was given similar rights, and the Atrato River in Colombia was given “bio-cultural” rights. Two years later, the Klamath River in California became the first river in the U.S. to be granted legal rights. The list of these cases does not end with the Klamath River — legal rights for nature have been the subject of constitutional provisions in numerous countries across the world, including Ecuador.
Legal rights that were once only reserved for humans and corporations are gradually expanding to encompass natural entities, and rivers are at the core of that movement. As the Colorado River becomes the subject of attention on the national policy stage, it may join other hard-working rivers as a subject of the blossoming Rights of Nature movement. Efforts have already been made to establish legal rights for the River by groups like “Save the Colorado,” and a lawsuit was briefly brought forward by nonprofit groups on behalf of the “Colorado River Ecosystem.”
The Rights of Nature movement offers compelling solutions to the problems that will confront the Colorado River’s policymakers and stakeholders in the years to come. Adopting a policy framework that values the health of the Colorado River would be a substantial step forward from the current development-focused framework. A policy entrepreneur willing to invest the time and energy into promoting this idea could benefit from the momentum of international Rights of Nature policy in order to promote the framework’s adoption in the Colorado River Basin during a policy window.
Governments, both state and federal, bear the burden of mitigating the water shortage problem in the Colorado River Basin. The River is a resource relied upon by millions, but governed by only a few. For this reason, progressive policy is a necessary step towards adjusting our Western civilization so that it is able to sustain growth and modern life. Kingdon’s multiple streams analysis theory suggests that we may soon experience — if we haven’t already — a policy window of opportunity in the Colorado River Basin. Will we embrace it?
