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Decree Enforcement Comes to the Law of the River: Cross Currents in Cutting California to 4.4 MAFY

Gary D. Weatherford, Proceedings of 49th Annual Rocky Mountain Mineral Law Institute (2003)

This article describes California's apportionment of Colorado River water and how it is being enforced for the first time. In 1964 the U.S. Supreme Court decreed that California had an apportionment of 4.4 million acre-feet per year (MAFY) of beneficial consumptive use under normal conditions, plus half of any surplus. For decades up to and through 2002, however, about 5.2 MAFY was available for California to use because Arizona and Nevada did not use their full apportionments and surplus water existed. Those cushions disappeared by the end of 2002 and California faces firm pressure by the federal government and the remaining Colorado River basin states to live within its basic apportionment of 4.4 MAFY. Most of that basic apportionment (3.85 MAFY) is covered by agricultural entitlements, leaving a vast amount of municipal and industrial (M&I) water demand exposed to shortage and dependent on surplus water. Conserving the agricultural water can make space, through forbearance or lease transfers, for satisfying more M&I demand within the 4.4 MAFY. A complex set of transactions to effect such a voluntary reallocation and to cushion California's reduction to 4.4 MAFY with surplus water for 15 years unraveled when a December 31, 2002, deadline was missed, largely due to uncertainties related to the funding of mitigation for impacts on the Salton Sea expected from the reduction of d