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834 NATURALRESOURCES/OURNAL [Vol. 40 Fall 2000] MANAGING ECOSYSTEM CONSERVATION 835 decisions, federal law, and international treaty, the river was overallocated because allocations were based on erroneously high estimates of average annual flow. 59 Compounding the problems of overallocation are numerous different interpretations of the definition of consumptive use, treatment of evaporation from reservoir surfaces, and water delivery obligations of the Upper Basin states (Colorado, New Mexico, Utah, and Wyoming) under the treaty to Mexico.60 To date, none of the Upper Basin states has used its full annual apportionment, enabling reservoirs to maintain storage near capacity, in turn prompting flood flow releases in the recent, above-average flow years. Implementation of the Law of the River has been subject to considerable litigation and discussion. It is generally accepted that the Law of the River gives priority to (1) the delivery of water to Mexico; (2) "present perfected rights" (water rights exercised prior to 1922, including the rights of Indian tribes); (3) delivery of water to the Lower Basin for consumptive uses; (4) consumptive uses in the Upper Basin; (5) economic, nonconsumptive uses (e.g., power generation); and (6) non-economic, nonconsumptive uses (e.g., environmental protection).61 To date, the Law of the River contains no provision for allocating water to support the ecological health of the Colorado's delta. In 1973, the 1944 Treaty with Mexic062 was amended with Minute 242, which established salinity standards for water delivered at the NIB.63 The impact of Minute 242 on the Delta is indirect: because some agricultural wastewater from southern Arizona is too saline to meet the standard, it is channeled into Mexico in a canal and drains into the Cienega de Santa Clara, where it sustains the Delta's largest wetlands.64 Despite stiff institutional resistance, resource managers have slowly begun to recognize the need to manage for ecological values in the Delta~ The Law of the River developed under the premise that water left instream was "wasted," a norm challenged over the past generation by a society increasingly sensitive to environmental considerations. In the United States, under the mandate of the Endangered Species Act, the federal goveITUIlent and the states are working towards restoration and protection of habitat and endangered species protection in both the Upper and Lower Basins. In 1987, the Recovery Implementation Program for Endangered Fish Species in the Upper Colorado River Basin6S was developed to protect and improve in-stream flows, restore habitat, and reduce the adverse effects of non- native fish species. In the Lower Basin states (Arizona, California, and Nevada), water users representing irrigation, municipal, and power . interests launched the Lower Colorado River Multi-Species Conservation Program (MSCP)66 in 1994 to mitigate water development impacts on threatened and endangered species while at the same time optimizing water diversions and hydroelectric power production. The Grand Canyon Protection Act of 199267 established an important precedent for the Colorado River, prioritizing environmental concerns regarding power generation at Glen Canyon Dam.68 In 1996, as required by the Act, the BOR released a flood of stored water from behind Glen Canyon Dam in an effort to redistribute sediments in the Grand Canyon and re-create eroded C, ' o w w c ....... 65. The Recovery Implementation Program for Endangered Fish Species in the Upper Colorado River Basin (RIP) is a cooperative effort involving the U.S. FWS; BOR; Western Area Power Administration; the states of Utah, Colorado, and Wyoming; water users; and environmentalists. The recovery program. which is expected to require 15 yem, contains five major elemenls: (1) habitat management, designed to identify and acquire in-stream flows and changes in operation of federal reservoirs in the basin; (2) habitat development based on the development of research methods for creating, protecting, and improving habitat; (3) stocking native fish based on a genetic management plan; (4) non-native species control; and (5) research,. monitoring, and data management programs designed to study various means of recovering fish. monitor long-term population trends, recommend flows, evaluate genetic differences between populations, recommend "refugia" (facilities to hold and protect rare fish), evaluate differences between hatchery and wild fish. establish brood stock. and. develop and manage a centralized database. See FISH AND WILDUPE SERVICE, U.S. CEP'T Of THB INTERIOR, REcOVERvlMPLEMENTATlON PRoGRAM fOR ENDANGERED FIsH SPECIES IN THE UPPER COLORADO RIvER BASIN (2000). . 66. See Multi-Species Conservation Program (MSCP) for the Lower Colorado River, Arizona, Nevada, and California, 64 Fed. Reg. 27,000, 27,000-27,002 (1999). 67. Pub. L. 102-575 81801-1809, 106 Stat. 4600, 4669-'73. 68. See JASON I. MORRISON ET AL., P ACIFle 1NsTJTuTE, 1HE SUSTAINABLE Usa 01' W Am IN THE LoWER COLORADO RIvER BASIN 4 (1996). 59. The river's annual average flow for the period 1911-1960 was 13 million acre-feet, yet 16.5 million acre-feet are allocated among Mexico and the U.s. states. See Meyers, supra note 55, at 2, 15; Meyers & Noble supra note 55, at 388. 60. See generally Getches, supra note 55. 61. See generally Meyers, supra note 55. 62. Treaty with Mexico Respecting Utilization of the Waters of the Colorado and Tijuana Rivers and of the RIo Grande, Feb. 3, 1944, U.S.-Mex., 59 Stat. 1219, 1265. 63. See AKreement on the Permanent and Definitive Solution to the International Problem of the Salinity of the Colorado River Resolution I, mwc Minute 242 (Aug. 3D, 1973), reprinted at 12 I.L,M. liDS, 1105 [hereinafter Minute 242]. 64. See supra note 43.