The Colorado River Compact hinges on one man's 1922 vision in the water rights debate
Today’s ongoing discussion of how to remedy the chronic overdraw of Colorado River water has its roots in the leadership role that Delphus E. Carpenter played when the Colorado River Compact was signed in 1922.
Delph Carpenter was an attorney from Greeley, Colorado who by 1922 had developed more expertise in water law than any of the other representatives from the seven states participating in the Colorado River Commission. And even though he wasn’t an old man in 1922 (he was 45), he had already developed severe health problems that some say had arisen due to his overwork litigating another important water matter: Wyoming v. Colorado.
That case began in 1911, after the state of Colorado began to dam the Laramie River to irrigate Colorado land. Wyoming objected because it was already using water from the river to irrigate land in Wyoming. Delph Carpenter defended Colorado using the accepted tenet that a state had control of the waters within its borders and could do as it pleased with them.
As this was a matter between states, the case went directly to the U.S. Supreme Court, where filings back and forth took 11 years. It was settled in June 1922, five months before the historic Colorado River Compact was hammered out in Sante Fe, New Mexico. Eleven years of Wyoming v. Colorado ground down Carpenter’s health and his spirit. He lost.
The Supreme Court ruled that because Wyoming had already been beneficially using the water, its prior appropriation was senior to Colorado’s claim that it controlled the waters in its territory.
Being a reasonable, practical man, Delph Carpenter accepted the ruling and immediately saw its implications. If California were to build a high dam on the Colorado River, it could establish prior appropriation to water that might block Colorado from ever using it.
He also realized that going to court to solve water issues was the wrong way to proceed. The case he had just lost had taken 11 years! Better for the states to get together and work these things out on their own. He knew this even in 1920, and so proposed the forming of the interstate commission that led to the Colorado River Compact that is the foundation document of the “Law of the River” today.
By 1920, the Imperial Valley had already submitted a bill to Congress to build a high dam on the Colorado River, so Carpenter saw the need to get a compact negotiated quickly. After a series of unproductive meetings earlier in the year, 17 meetings in November 1922 saw it done. Carpenter was the principal author. He was the one to suggest dividing the allocation of the river in half by basin—upper and lower—instead of state by state.
The other major concept he learned from his defeat in Wyoming v. Colorado was that the federal government was OK with inter-basin transfers. The ruling allowed Colorado to move a small amount of water out of the Laramie River basin and into the Poudre River basin. This meant that in the future, Colorado could also ship water from the west side of the Rockies—where the Colorado River flowed—to the east side of the Rockies—where 80% of Colorado’s people lived.
Carpenter was a visionary. Today, there are 25 tunnels from the west side of the Rockies to the “Front Range” or east side. Around 470,000 acre-feet of water leave the Colorado River basin within the state of Colorado. (For the entire Upper Basin, the number is around 690,000 acre-feet.) Instead of flowing into Lake Powell and down to the lower basin states, those waters end up in the Platte, Arkansas or Rio Grande rivers, which flow into the Gulf of Mexico.
Carpenter, who suffered greatly from Parkinson’s disease until his death in 1951, would never know that the compact that he authored would prove to be built on a serious overestimation of how much water the Colorado River could supply. This would have been a great embarrassment to him, as he was well respected by all his colleagues for seeking a fair outcome based on the best information available.
He may also have not foreseen how his embrace of the principle of “first in time, first in right” would end up in endless litigation and invite the federal government into the bickering—two things he wanted to avoid.
Today, Imperial Valley’s senior water rights are being tested as they impact junior water rights holders in Los Angeles and across Arizona. In Delph Carpenter’s home state of Colorado, farmers on the west side of the Rockies are in a similar situation as farmers in the Imperial Valley. Distant cities, including Denver, Boulder and Pueblo, want and need their water.
Too bad Carpenter can’t come back for “round two” of a new Colorado River Compact. His courteous demeanor and iron will to get a deal done are just want the doctor ordered.
Brian McNeece is a retired Imperial Valley College professor and dean. He is the producer of two documentaries on the history of water in the Imperial Valley and is a member of the International Boundary and Water Commission Colorado River Citizens Forum. His email is bmcneece@gmail.com.
This article originally appeared on Palm Springs Desert Sun: The Colorado River water rights case was guided by one visionary man
