BOULDER, Colo. (CN) - Four months past the deadline to produce a new agreement, two Colorado River compact commissioners from different basins can agree on three things.

The University of Colorado Boulder campus has a shocking abundance of lush grass in light of the governor's Stage 3 drought declaration.

The best path forward is a still through an agreement between states.

Getting there might require mediators.

Addressing attendees Friday at the 46th Annual Colorado Law Conference on Natural Resources at the Wolf Law School at University of Colorado Boulder, John Entsminger, Nevada's Colorado River compact commissioner, said he was open to anything that offered to "reinvigorate negotiations."

"In terms of reaching a longterm, durable, multidecadal plan, we're not close," Entsminger said. "So, if a mediator will help, let's do it."

Colorado compact commissioner Becky Mitchell agreed that mediation seemed a meaningful tool to use.

"I hope mediation isn't seen as a failure," she said.

"The issues that we're dealing with now are different than anything that's been dealt with before," Mitchell continued. "We're dealing with hydrology that's not cooperating with an easy concise agreement. We've got tribal issues, environment issues and interstate components."

Entsminger and Mitchell represent two of the seven states working toward a management agreement to divvy up water from the Colorado River to 40 million people in the Southwest and Mexico.

Among those people are members of 30 Native American tribes, as well as 2.5 million people who rely on hydroelectric power. While the bulk of the river water feeds 5.7 million acres of crops, the amount supporting the natural environment remains unquantified and priceless.

Each water user along the river has unique needs, but the divide between lower basin states - California, Nevada, and Arizona - and the upper basin states - Colorado, Wyoming, Utah and New Mexico - often dominates discussions of future management through constrained conditions.

On paper, the original compact decrees that water should be equitably divided between the upper basin and those in the lower basin. In practice, the lower basin often uses more than its allotted share, while the upper basin hopes to increase water use to support a growing population.

Three key agreements determining water allotments expire this year: the 2008 interim guidelines; the Minute 323 agreement under the 1944 Water Treaty with Mexico, signed in 2017; and a 2019 drought contingency plan.

After the states failed to reach a new operating agreement in February, the Bureau of Reclamation released a draft proposal in March. It is expected to be finalized in October and would direct the region through the next decade.

"The first thing that struck me about the federal government's plan is that it's tied to actual conditions. It looks at what the river is producing and what is in the river - that's a shift," Mitchell said. "When we look at sustainable storage and rebuilding security in the system, that's a positive."

The catch, Mitchell said, is that the proposal also leaves states in constant negotiation.

"The constant negotiation every two years is difficult to fathom," Mitchell said. "How do we build resilience without that certainty? How do we fund and finance if we are constantly renegotiating?"

Entsminger likewise saw pros and cons in the federal proposal, with incremental negotiations providing a sound path forward through ever-uncertain conditions.

"The record of decision should reflect a process to govern future river operations to keep us out of court until 2029," Entsminger said.

Entsminger's sticking point: He wants states to set their own course through cooperative management rather than relying on a federal agency.

"Ever since I've worked on this river - and I know this is to the chagrin of Native Americans and environmentalists in the room - but the mantra has been 'the law of the river as agreed on by seven states,'" Entsminger said. "If seven states can't agree, then different humans are going to make the decisions."

Today, more people than ever depend on the Colorado River - but less and less flows downstream each year.

Scientists have recorded a 20% decrease in river water over the last 100 years. Following a dry winter in Colorado, they anticipate sending just 30% of average flows into the Lake Powell reservoir this year. Looking to the middle of the century, scientists warn the river may continue shrinking as much as 30% by 2050 - potentially making 2026 the norm rather than the exception.

Encapsulating the losses, attendee Donald White recalled his own tribe's dwindling access to water.

"I remind people the Ute Mountain Ute Tribe are the people of the headwaters of the southern Rocky Mountains," White said. "The Platte, the White, the Gunnison [and] the Arkansas [rivers] - all of that we used to live on 200 years ago."

Today, the tribal nation lives largely on a reservation in southwest Colorado and northern New Mexico, where it anticipates receiving just 8% of its federally allotted water this year.

"I have people who come to me and say 'Don, do you know of any springs or seeps on our reservation?' and I wonder how we went from having all of the headwaters to 'How do we have no continuous waters running across out land?'" White said.

Source: Courthouse News Service