The Colorado River tailwater below Glen Canyon Dam. Historically dry flows are forcing a new era of negotiation between various interests in the arid West. (Wikimedia Commons — click to enlarge)
Slow Disaster: Dwindling Colorado River will demand congressional action
By Anne MacKinnon
— August 20, 2013
Continuing partnerships among all kinds of water users, plus a new federal commitment to invest in adaptation to climate change – disaster prevention rather than only after-disaster relief – will be key to dealing with the extreme dry conditions now dominating the Colorado River basin from Wyoming to Mexico, water officials from all along the river said late last week.
Congress, sadly “dysfunctional” in this era, has to recognize that the nation must put money into scientific research and plans that help people, infrastructure, and natural resources to adapt and change to meet the uncertainties of climate change, said Pat Mulroy, outspoken general manager of the Southern Nevada Water Authority.
Pat Mulroy (UNLV Photo Services)
She said people involved in the Colorado River have managed in the past dozen years to negotiate deals and create relationships that can be built upon now. Negotiators will be able, she said, to come up with ways in which there will be no water battles, and no “winners and losers” on the river, despite dwindling supplies.
Everyone will stand to lose a little, but no one, perhaps not even the river itself, need face the disaster of no water for vital needs. Congress, however, will have to act, backing whatever joint proposals develop to prevent such a disaster.
That was the consensus emphatically stated by Mulroy and a number of other water managers and policy people meeting in a University of Colorado law school conference late last week. Conference speakers embodied the wide array of interests on the river – from the federal Department of Interior to states to municipal utilities to Indian tribes to irrigation districts to recreationists to environmental organizations.
Since river conditions got seriously low in 2005, all those parties on the river have realized they are irrevocably linked together, for better or worse, conference speakers said. They said they have worked through lengthy and sometimes miserable negotiations on a variety of issues to find ways to work together instead of fight over the river, as they have in the past.
“Pretty amazing” is how State Engineer Pat Tyrrell describes the resulting cooperation on the Colorado in recent years. He agreed that all the disparate users and managers can be expected to cobble together agreements that will allow them to continue to cooperate.
Pat Tyrrell, Wyoming State Engineer
No Wyoming officials attended the conference, but Tyrrell commented on the issues later to WyoFile.
Working out deals on the Colorado has not been easy, but there is a clear sense that “we’re all in this together,” said Tyrrell. Eastern states, facing water shortages on interstate rivers for the first time, are trying to learn how the Western states do it, he said.
In 2005, low flows and low reservoirs heightened Wyoming concerns that states at the other end of the river who use large volumes of water would demand cutbacks in Wyoming’s much smaller uses, Tyrrell said.
But the kinds of agreements on a variety of issues that all the states have worked out since then make it seem very unlikely Wyoming would see such a demand, even as flows and reservoir levels are coming back to those low levels again, he said.
Concern about river flows does mean that Wyoming officials are continuing to amass data on water usage on Wyoming’s share of the river basin, and beginning to think about how water demand here can be managed over time, while still accommodating new uses, he said.
Significantly for Wyoming, it was the managers of water for urban and agricultural constituents in the populous states on the river in the southwest U.S., whose water consumption Wyoming has watched warily for a century, who said last week that partnership rather than conflict is the way to address current dry conditions.
The river, laden with dams and tapped by pipelines, is completely changed from the wild river it once was. Heavy use in the southwest means water is still sent down the river channel, but the way the river works with its canyons and banks, the quality and temperature of the water, the kind of fish who inhabit it, and even the river’s ability to reach the sea, have all been dramatically altered. In recent years some “restoration” steps have been part of deals made on the river, and one such plan for “pulse flows” through the river’s delta in Mexico is still moving ahead, speakers said.
Once partnership-style deals to handle low flows ahead are in hand, the alliance of interests on the river, including the Interior Department, will have to go to Washington and “make Congress put the money in” that will make those deals work, Mulroy said. Just what money will be needed for, no one said – because the deals likely to require it are yet to come.
The urgency of the issue was underlined Friday by a major announcement from the Interior’s water management agency, the Bureau of Reclamation. The Bureau announced that water releases from the key Lake Powell Reservoir will drop drastically next year – to levels not seen since the 1960s.
The Glen Canyon Dam impoundment creates Lake Powell, allowing control of floodwaters for agricultural, recreational, and municipal uses. (Wikimedia Commons — click to enlarge)
The announcement means dwindling water availability for the southwestern U.S. states that have high populations and intensive agriculture. Those are the “lower Colorado basin” states of Nevada, California, and Arizona. Those states have already worked to help agriculture and urban people use less water, shift saved water to new uses, or build new facilities to tap water at lower levels in shrinking reservoirs. Now they will see nearly a 10 percent drop in the average amount of water released for lower basin use in the past decade.
But while the leading river water managers convened at the conference were confident they can figure out how to handle the uncertainties of low snowpack and run off, they acknowledged that the Colorado River does not necessarily get front-burner attention in Washington D.C., despite the nearly 40 million people and multi-billion dollar agriculture, recreation and other industries that depend upon the river.
Nor, they said, is Congress likely to adopt the steps taken in Australia, as water supplies have dropped in that country’s major river basin due to climate change. There, an Australian visitor in the audience pointed out, the government has put a price on greenhouse gas emissions, and used the money to pay for measures like increased water use efficiency. In the U.S., talk of the causes of climate change, and penalizing emissions, means getting into “religion,” Mulroy said. Dialogue on those issues here is not where it is in Australia.
Record-setting dry conditions
The Colorado River Basin is now in the 14th year (despite a brief respite in 2011) of the driest period in recorded history, speakers said. It is also one of the driest periods in paleo-history – according to the centuries of precipitation patterns traced through study of tree rings in the region. How long the current dry conditions will go on, or whether they may get worse, is anyone’s guess, they noted. Late last year the Bureau of Reclamation issued a report forecasting continued difficulties matching dwindling supplies to demands on the river.
In 2000, the Colorado River entered its driest period in recorded history. (Wikimedia Commons — click to enlarge)
“Drought” is really not the right word for the current situation, said Eric Kuhn, general manager of the Colorado River Water Conservation District, which handles water for farms and small cities in western Colorado.
“Drought” implies a situation from which the region will emerge and then get back to “normal” conditions of snowfall, snowmelt, and water supply – and that can’t be expected now, in the uncertainty of climate change, Kuhn said.
Climate change is not temperature change but “water cycle change,” said Brad Udall. Udall is a climate change science expert who heads the Getches-Wilkinson Center for Natural Resources, Energy and the Environment at the Colorado University Law School, which convened the conference.
The most reliable models indicate that “wets will be wetter, and dries will be drier” in coming years, and places “poleward” of existing deserts – like the Colorado River Basin – are at the greatest risk of drying, Udall said.
Brad Udall
Changes in the water cycle drastically affecting flows in the Colorado River system threaten a “slow disaster,” unlike the “fast disasters” of “superstorm” Sandy, or Hurricane Katrina. A “slow disaster” is one that the water users and the federal government ought to be able to address to minimize the damage, Mulroy said.
Denver Water’s manager, Jim Lochhead, agreed. Quoting a Colorado colleague, he said, “Climate change is a freight train coming at us at 2 miles per hour. If we get hit by it, it’s our own damn fault.”
Changing course from conflict to cooperation
In the face of water shortage, the public in the Colorado River Basin will assume that the guiding principles will be equity, economics, and environment – “shared sacrifice” is the most likely course, Udall said.
For most of the 20th century, water was the subject of squabbles, litigation, and even threats of armed conflict among the seven states on the Colorado River, from its headwaters in Wyoming and Colorado down to the southern U.S. border – as well as between the U.S. and Mexico. In 1922, the seven states agreed on a “compact,” affirmed by Congress, which set out what amount of water each state could put to use in the years ahead.
The Colorado River Basin encompasses seven of the most arid western states. (Wikimedia Commons — click to enlarge)
Unfortunately that compact assumed more water flowing in the river system than has often been there since. The seven-state deal, however, cleared the way for federal investment in the huge Hoover Dam and other reservoirs, pipelines, pumping stations and other elaborate water management and delivery infrastructure on the river. Conflict continued. In 1963, the state of Arizona, after nearly 30 years of failed lawsuits, finally got a U.S. Supreme Court decision confirming that Arizona had rights to water that would allow federal construction of a big new pipeline for that state to tap into the river.
The high court decision also pronounced that the Department of Interior is the “water master” in charge of the lower section of the river, giving the federal government a strong role and major obligations on the river. The court also set precedent for recognition and quantification of the rights of Indian tribes to water in the West — rights that, based on largely 19th century treaties, had long been ignored while water to serve those rights was used by cities and irrigators unrelated to Indian reservations.
The CU conference looked back 50 years at the 1963 decision, and analyzed its legacy in what has happened on the river since. For several decades after the decision, California with its massive population growth and multi-million-dollar irrigated agriculture used by far the most water of any state on the river. Water users in low-development states like Wyoming looked nervously on, fearful that despite the old multi-state compact, California’s economic and political clout would allow it to take more water eventually, depriving even far-upstream states of future water uses.
Since about the year 2000, however – as dry years began to mount – dramatic changes have occurred. Those changes have included intensive work by California to cut its water draw from the river down to the amount recognized as its legal entitlement by the courts, the Interior Department, and neighboring states. Now the Metropolitan Water District of Southern California, serving nearly 17 million people in the Los Angeles-San Diego region, plans to keep its water sales through the year 2035 flattened to 1990 levels, despite continued growth in population, MWD General Manager Bob Kightlinger said. That likely means charging water customers “more and more each year,” he said.
Now, there is genuine recognition that agriculture, the environment, cities, tribes, the federal government, and the states all have a “symbiotic relationship on the river,” said Sandy Fabritz-Whitney, director of the Arizona Department of Water Resources. “We can’t bicker or point fingers” any longer, she said.
The conference presented a litany of successful negotiated deals on the river in the last 15 years, addressing everything from responses to dwindling snowmelt and low reservoirs to reducing the impacts that water supply strategies undertaken by California farmers can have on farmers in Mexico. That last agreement has even taken first steps to repair the drastic dewatering of the once-ecologically-rich Colorado River Delta in Mexico, where the river, in the rare years when it has any water left, tries to meet the Pacific Ocean.
The Interior Department, which like other “water masters” has taken action or stood back as river conditions and water-user relations seemed to demand, has played an important role in facilitating deals on the river. The department has provided both negotiating leverage and water accounting data, according to speakers from the Department and from the states who work with it. The Bureau of Reclamation ’s announcement Friday of reduced water releases to the lower basin states followed a process set in a 2007 deal agreed upon by the states, Interior, and other parties. That deal determined what water flow data should trigger decisions to reduce reservoir releases. The agreed-upon trigger occurred, and so the announcement Friday was no surprise, Tyrrell said.
Building on longstanding “Law of the River”
The recent rounds of deal-making are all underlain by the 1922 Colorado River Compact, the 1963 Supreme Court decision, and the water law principle of most Western states including Wyoming, the “prior appropriation” doctrine, which gives those who first put water to good use the right to all the water they need for that use before later users get any. Those legal tenets provide a necessary baseline from which all parties can negotiate, conference speakers said. Now the work of new negotiations can build upon recent experience, creating new rules and understandings but drawing upon the basic spirit of fundamental legal arrangements like the original compact between the states, which set out the proposition that the seven states are peers and negotiate as equals, Mulroy said.
The Green River at Mineral Bottom in Utah. The Green River originates in Wyoming’s Wind River Mountains and is the largest tributary of the Colorado River. (Wikimedia Commons — click to enlarge)
Udall’s projection of “shared sacrifice” on the Colorado, or the concept of “shared surpluses and shortages,” noted by other conference speakers, is not outlawed by the prior appropriation doctrine. It is not how that doctrine would operate if the doctrine were invoked in times of shortage, but, significantly, water users can always agree to share rather than insist on priority rights if they so choose.
The prediction of partnership deals on the river to deal with dwindling supplies seems to rely on building that kind of agreement on the framework of the longstanding “Law of the River” on the Colorado. The “Law of the River” includes the seven-state compact and court decrees, and the recent evolution of further deals on specific issues. Building on all that, water managers believe they can keep finding points of mutual interest and ways to contribute to each other so as to meet vital needs.
“Allocations under the compact or the ‘Law of the River’ are no different from any Western water right,” Lochhead of Denver Water said. “You have a right, but how you exercise it is your choice.”
Mark Squillace, former water law professor at the University of Wyoming, now a CU law professor and former director of the center that held the conference, commented to the speakers in a Q and A session on what that might mean for Wyoming.
It appeared from their discussion that the lower basin states of California, Arizona and Nevada would not be likely to demand that upper basin states – Wyoming, Colorado, Utah, and New Mexico – drastically curtail their uses so as to boost the amount of water delivered down to the lower basin.
Tyrrell, contacted after the conference, agreed that a demand for curtailment was not likely. He also noted that Wyoming’s interests suffer if the big reservoir, Lake Powell, gets too low to provide flows that generate electric power. Power revenues from Lake Powell help fund programs like endangered species recovery and salinity control on the upper stretches of the Colorado, without which Wyoming cannot continue to develop Green River water for new Wyoming uses, Tyrrell said.
Accordingly if the Colorado River Basin states and all the parties involved in water use go to Washington to ask for money to help make deals addressing low flows work, Wyoming is likely to ask that money go not only to multiple programs in the lower basin but also to enhance those endangered species and salinity control programs crucial to Wyoming, Tyrrell said.
Down to details: tribes, fields, cities, the river itself
Shared surplus and shortage has been a tenet of water law for other peoples, including the Northern Arapahoe and Eastern Shoshone tribes in Wyoming – who, with rights on the Wind River, live and work in the Missouri River Basin rather than the Colorado. Speakers at the conference said it is heartening that water for tribes, as well as for the environment and for recreation, have gotten serious consideration in recent years of negotiated deals on the Colorado. Those needs can be expected to continue to be important in the work ahead dealing with dwindling water supplies, speakers said.
Water for environmental needs and for recreation are “not just ‘nice’” but essential to the economies along the river, said Anne Castle, assistant Secretary of Interior for Water and Science.
Water rights held by tribes could well prove crucial in upcoming negotiations. Amy Cordalis, a lawyer who just finished work with the Native American Rights Fund, noted that tribes in the Colorado River Basin hold confirmed rights to some 2.8 million acre feet of water a year. There are also, she said, pending tribal claims in the basin for up to another 1.3 million acre feet. Together, those figures approach nearly one-quarter of all the water yield in the basin in recent years. Federal funding cutbacks are unnecessarily slowing down resolution of the pending claims, she said.
Tribal water could be an important factor in meeting demand in the basin in the face of dwindling supplies, said Julie Nania, a research fellow at the CU law school institute that hosted the conference. For what flows there are in the river, the tribes’ rights provide a strong claim, since they are based on early-date treaties. That water could be deployed for multiple benefits if the tribes could bank, lease, or sell some of that water to benefit non-Indian users, after tribal water needs are met, Nania said. Wyoming’s Supreme Court has refused to allow the Wind River tribes to market their water rights for use off the reservation, but the Arizona Supreme Court has put forth a broader interpretation of how tribes can use their rights, which could well support marketing of Indian water to non-Indian users, Nania said.
Irrigated fields in the Imperial Valley of southern California. The highly saline Salton Sea is in the background. (Wikimedia Commons — click to enlarge)
Water banking, which allows water to be shifted temporarily from one use to another, has gotten underway interstate in the lower basin. Arizona, for instance, stores Colorado River water underground and then allows users in other states to pay a fee to use river water that can be replaced by withdrawals from “banked” water, explained Fabritz-Whitney, of the Arizona Department of Water Resources, and Tanya Trujillo, head of the Colorado River Board of California.
In the Upper Basin, Colorado irrigators on the Western Slope have been examining the possibility of a water bank that would allow users who need water to pay others not to use their water for a set period of time, Kuhn of the Colorado River Water Conservation District said. From his talk, it appeared unlikely that such a scheme would be proposed to shift water interstate from say Wyoming to Colorado, because Kuhn noted that the research thus far shows that the economics would not work out for “bank” transactions involving water normally used in high-elevation valleys, or in cow-calf operations – both typical of Wyoming irrigators further upstream on the Green River headwaters of the Colorado.
The water managers speaking at the conference were unwilling – and unable, they said – to outline what kinds of things they thought they might negotiate towards to deal with ongoing water shortages on the Colorado. But it seemed likely that the federal money Mulroy mentioned could be the key to making all kinds of ideas work – from setting up new institutions like water banks, to paying for increased water efficiency or suspensions of some uses on farm and in cities, to continued work on lowering the costs and increasing the output of processing waste water or sea water into useable water.
Mulroy said “augmentation” – new sources of water, like desalination or even new storage – cannot be off the table. The 2012 Bureau of Reclamation report on Colorado River supply and demand sums ups the costs and benefits of a huge variety of water management and augmentation proposals, providing data for negotiators to work from.
But crops and lawns – essentially, alfalfa and grass – are the big users of water on the Colorado, and in managing both there are ways to save water to meet the most important needs, speakers said. California agriculture will “have to take a hit,” Udall said. Big cities, too, will figure out how to live on less water – not in response to a crusade attacking urban water use, which would “build a wall” of resistance – rather, “it will happen organically,” said Mulroy, whose agency is known for rewarding customers for tearing out lawns. “We won’t get through these discussions without the cities feeling constrained.”
A patchwork of agricultural lands in the desert along the lower Colorado River valley near Yuma, Arizona. (Wikimedia Commons — click to enlarge)
“It’s not in our collective power to come up with a plan, announce it and implement it,” Lochhead of Denver Water said. “That’s not how we work.” The water managers at the conference have ideas that have to be vetted through basin, state and federal politics – the work will require an incremental approach, working through proposals so that the public and all the water interests can understand and back workable solutions, he said.
The chief of the Grand Canyon Monitoring and Research Center of the U.S. Geological Survey, Jack Schmidt, gave a talk suggesting that ways of aiding the river itself – so it can better move water and sediment, protect its banks, and support aquatic life – may remain on the table as negotiators meet in coming months.
“Talking about water as a commodity is not the same as talking about rivers,” Schmidt said. Scientists studying river restoration need policy makers and the society of the region and the nation to decide what kind of river they want in what stretches – and what they are willing to pay for.
The full gamut of river and water needs and interests appear likely to figure in upcoming talks on how to adapt to ongoing dry years – and it appears the outcome could easily be a series of agreements, different deals involving different parties, who talk to each other and ultimately see the series as adding up to a collection of agreements that will make it possible to meet vital needs along the river.
In response to an audience member yearning for a governance organization with a 50-year strategy for the entire basin, Mulroy said, “Even if we had a formal structure with a plan, the plan would be wrong. Climate change has huge unknowns. You have to be nimble, flexible – to address whatever comes at you.”
And besides, as the panel of water managers who wrapped up the conference made clear, they don’t want some formal structure. They believe the hodgepodge of talks, relationships and deals is what has worked and will work to keep economies and water moving on the Colorado.
— Anne MacKinnon is chair of the WyoFile board and a former member of the Wyoming Water Development Commission.
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