A historic agreement between the federal government, two states, and a private power company means that four dams on the Klamath River are potentially slated for decommissioning and removal. The Klamath River flows from Oregon through California before finally emptying into the Pacific Ocean. The amended Klamath Hydroelectric Settlement Agreement (“KHSA”), signed on April 6th, 2016, may bring unexpected success to a decade-long negotiation involving big energy, tribal water rights, historic wildlife habitat preservation, and the intermingling of state and federal government regulatory agencies.

The first Klamath agreement was formally executed in 2010, and brought together the federal government, the state governments of Oregon and California, PacifiCorp, a large electric cooperative, and over forty additional signatories, including the Yurok and Karuk Tribes. Repeated congressional inaction halted the prior agreement’s implementation after Congress again failed to act before adjourning for the year on December 31, 2015.  On February 2, 2016, the Department of Interior, together with the Department of Commerce, California, Oregon, and PacifiCorp announced they agreed to amend the KHSA, which the parties eventually signed in April. The amended KHSA is the culmination of the Klamath Basin Restoration Agreement executed in 2010 and the Upper Klamath Basin Comprehensive Agreement signed in 2014.

In September, PacificCorp submitted the revised KHSA to the Federal Energy Regulatory Commission (“FERC”) for public review. On October 17, 2016, Interior Secretary Sally Jewell issued a letter to the Commission backing the dam removal.

Initially, the disputes in the Klamath Basin emerged as environmental and conservation groups (such as the Nature Conservancy, American Rivers, and Trout Unlimited) sought to restore 420 miles of historic salmon runs and riparian habitat. Moreover, these groups sought to eliminate the toxic algae blooms proliferating in the idle backwaters above the dams.

The most significant barrier to restoration of the river has been a dispute over the cost of retrofitting the aging infrastructure using modern technology and, alternatively, the cost of dismantling and removing the century-old structures and preparing the land to return to its original state.  According to several studies, the retrofit option would not only result in reduced electricity generation, but would also cost millions of dollars more than the removal.  However, the economic impacts extend beyond the estimated 450 million dollar cost of removal. A group of nearly one hundred, individual property owners have voiced opposition over the impact that dam removal would have on their lakefront property values adjacent to the reservoirs created by the dams.  Thus, a decrease in private property values could also accompany the dam removals.

Under the revised agreement, the states of California and Oregon will create a nonprofit entity, the Klamath River Renewal Corporation, which will take over Pacificorp’s current ownership of the dams.  This new owner will decommission and eventually remove the dams using existing federal authority. Both PacifiCorp ratepayers and a 2014 voter-approved water bond from the State of California has already generated funding for the decommission.

Notably, the most recent amendment lacks many government participation requirements from the original KHSA agreement.  The original agreement required Congress to pass legislation opening up significant funding, as well as the formal release of PacifiCorp from virtually any liability associated with the dam removal process. Congress’s inaction prompted the parties to exclude the Congressional participation requirement from the revised agreement.

In her recent letter of support to the FERC, Secretary Jewell called the plan a “unique opportunity to restore [a] magnificent [r]iver,” which  could help “re-write a painful chapter in our history” but still “[protect] the many interests in the Basin.” Secretary Jewell cited four key reasons for the Interior Department’s support: 1) the likely cost of removal is well below the funds that have already been obtained, 2) reservoir bottom sediment testing showed that chemical concentration levels were safe for release downstream, 3) the removal will result in the reopening of more than four hundred miles of salmon habitat, nearly doubling Chinook salmon production, and 4) the removal would improve water quality.

Although the agreement facilitates the removal of the dams, critics believe it fails to solve many of the problems it originally intended to fix, including resolving disputes over water rights, as well as effectively addressing specific allocations to farmers, wildlife refuges, and Native American tribes.  Notably, the Hoopa Valley Tribe did not sign the KHSA agreement amid concerns regarding certain provisions.  Further, the Klamath Tribes of Oregon did not sign the agreement, because its tribal members had yet to approve it through a popular vote.

While some issues may remain unresolved, the agreement represents an example of multiple entities and interests cooperating to effectuate the removal of the dams.  This agreement, if successful, may be an example and model for future change in the realm of water agreements. Curtis Knight, executive director of non-profit group California Trout expressed cautious optimism about the agreement, “[d]am removal is an essential first step, but certainly not the only step, in this process. California Trout remains committed to the comprehensive vision behind the hard-won Klamath Agreements, which identified a balanced approach to water use, environmental restoration, and community sustainability throughout the basin.”

DeWitt Patrick Mayfield

Image: PacifiCorp’s John C. Boyle Dam in Oregon, one of four dams slatted for decommission under the Agreement. Wikimedia user Bobjgalindo, Creative Commons.


Bettina Boxall, Klamath River Dams Moving Toward Removal Despite Congressional Barriers, L.A. Times (Feb. 3, 2016), http://www.latimes.com/local/lanow/la-me-klamath-river-dams-20160203-story.html.

Thadeus Greenson, Feds Announce New Klamath Accord to Remove Dams by 2020, North Coast Journal (Feb. 2, 2016), http://www.northcoastjournal.com/NewsBlog/archives/2016/02/02/feds-announce-new-klamath-accord-to-remove-dams-by-2020.

Paige Blankenbuehler, On The Klamath, A Surprising Win For River Advocates, HIGH COUNTRY NEWS (Feb. 5, 2016), https://www.hcn.org/articles/how-conservatives-handed-environmentalists-what-they-wanted-klamath-dam-removal-without-concessions.

Peter Firmite, Remove 4 Dams on Klamath, Study Urges, S.F. Chronicle (Apr. 4, 2013), http://www.sfgate.com/science/article/Remove-4-dams-on-Klamath-study-urges-4411365.php.

Press Release, Dep’t. of Interior, Parties Agree to New Path to Advance Klamath Agreement (Feb. 2, 2016), available at https://www.doi.gov/pressreleases/parties-agree-new-path-advance-klamath-agreement.

Thadeus Greenson, UPDATED: California, Oregon Governors to Make ‘Major Announcement’ on Klamath, NORTH COAST JOURNAL (Apr. 4, 2016, 11:10 AM),  http://www.northcoastjournal.com/NewsBlog/archives/2016/04/04/california-oregon-governors-to-make-major-announcement-on-klamath.

Press Release, PacifiCorp, Parties Agree to New Path to Advance Klamath Agreement, (Feb. 2, 2016), http://www.pacificorp.com/about/newsroom/2016nrl/klamath-agreement.html.

Jonathan J. Cooper, Officials Sign Unusual Pact to Tear Down Hydroelectric Dams, ASSOCIATED PRESS (Apr. 6, 2016, 6:45 PM), http://bigstory.ap.org/article/235ba2f92ded43f3a8af971a52da17f2/officials-sign-unusual-pact-tear-down-klamath-dams.

Press Release, Dep’t. of Interior, Two New Klamath Basin Agreements Carve out Path for Dam Removal and Provide Key Benefits to Irrigators (last updated Apr. 14, 2016), available at https://www.doi.gov/pressreleases/two-new-klamath-basin-agreements-carve-out-path-dam-removal-and-provide-key-benefits.

Dan Bacher, Tribes, State and Feds Sign Klamath Dam Removal Agreement, DAILY KOS (Apr. 7, 2016, 1:36 AM), http://www.dailykos.com/stories/2016/4/7/1511799/-Tribes-State-and-Feds-Sign-Klamath-Dam-Removal-Agreement.

Will Houston, ‘Milestone’ moment: Klamath River dam removal plan submitted to feds, TIMES STANDARD NEWS (Sept. 23, 2016, 10:41 PM), http://www.times-standard.com/article/NJ/20160923/NEWS/160929892.

David Smith, Jewell supports dam removal in FERC letter, THE SISKIYOU DAILY NEWS (Oct. 16, 2016 8:59 AM)  http://www.siskiyoudaily.com/article/20161019/NEWS/161019616.

Letter from Sally Jewell, Secretary, U.S. Department of the Interior, to Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission (Oct. 17, 2016), available at https://bloximages.chicago2.vip.townnews.com/heraldandnews.com/content/tncms/assets/v3/editorial/3/2f/32f4ad9f-9d5d-5656-a7c4-3a4d5d4eacc2/5806b3b857502.pdf.pdf.

Compromise or Concession?

I. Introduction

The United States Forest Service (“Forest Service”) manages 193 million acres of land with a mandate to do so for the betterment of the public. As an agency within the Department of Agriculture, this usually manifests itself in the “multiple uses” management system that seeks to provide for outdoor enthusiasts, conservationists, and agriculturalists alike. But how does that directive mesh with ski resorts operating on public land that use scarce water resources to create snow? For the past half-decade, the Forest Service has been attempting to pass a regulation that would appropriate privately held water rights originating on National Forests back to federal government control. This article takes a brief look at the history of discord between ski resorts looking to develop on the publicly owned national forests, and the Forest Service. It also examines the lead up to, and consequences of, the most recent regulations imparting more federal control on water resources management in arid western states.

II. 100 years of Conflict

Ownership disputes of water rights developed and used on federal land dates back over one hundred years. The conflict playing out today, that of private landowners pitted against the Forest Service, spawned from restrictions on homesteading around the turn of the 20th century. When Gifford Pinchot, the first United States Forest Service leader, visited Colorado in 1909, westward-expanding citizens accused the Forest Service and the federal government of over-reaching their intended purpose, claiming they were “living in a state of fear.” The Forest Service had just enacted regulations removing tracts of national forest from homesteading availability. Over the last one hundred years, private landowners have butted heads with the federal government wanting more local control in lieu of federal oversight.

The relationship between Colorado water rights holders and the Forest Service is just as contentious today as it was when Pinchot visited the area over a century ago. The contentious relationship most recently manifested itself in a fight for control of water rights and permits that ski resorts use to manufacture snow. In 2004, the Forest Service attempted to create joint tenancy of water rights. In effect labeling themselves as “landlord” and ski resorts as “tenants.” Although applied to a few adjudications nationwide, many states do not recognize the concept of joint tenancy for water rights.

In 2011, the Forest Service issued a new regulation requiring ski area operators who develop new water rights within their ski permit areas to grant their newly acquired water rights to the United States Government. In 2011, the Forest Service applied this rule when the Powderhorn Ski Resort, near Grand Junction, changed hands. The Forest Service required the new owners to transfer their existing water rights to the government, conditioning the approval of the ski area purchase on the new owner’s acceptance of these terms. The ski resort industry fiercely criticized this policy, and many water rights holders were concerned about the supremacy of state water law over a forest service directive.

Traditionally states have had the sole authority to govern water rights creation and ownership within their borders, many water rights users saw this new policy as the federal government’s attempt to impose federal law in an area that state law wholly controlled. Later in 2011, the National Ski Areas Association (“NSAA”) filed suit in National Ski Areas Association, Inc. v. United States Forest Service. In reviewing the Forest Service regulation, the court held it was a new “legislative rule” subject to the requirements of the Administrative Procedure Act. Because the Forest Service did not publish its intent to create a new regulation, and sought no input from the public and those affected by the order, the Forest Service invalidly issued the rule.

Following the 2012 decision, the Forest Service engaged in a lengthy notice and comment period to fulfill its procedural obligations under the Administrative Procedure Act. The results of which yielded a regulation issued December 2015, and went into effect January 2016. The new policy is significantly different from the 2011 attempt, involving concessions and input from all interested parties, not just governmental.

III. Compromise and Concession

The latest iteration of the Forest Service’s attempt to secure title to water rights originating from federal land might best be described by the axiom, “(a) sign that a successful accord has been reached is that no one walks away from the table completely happy.”

Resorts gave up autonomous control of their water rights, which they previously enjoyed, and in return maintain the ability to buy and sell their water rights at will. However, in the wake of the Forest Service’s new policy, when ski resorts are sold and the buyer does not want to purchase the accompanying water rights then the federal government has the right of first refusal. Although a far cry from the Forest Service’s 2011 goal, the new rule provides a way to potentially gain water rights ownership, an important milestone, but the rule was not achieved without sacrifice.

This compromise can seem like a large departure when viewed in the context of the original 2011 Forest Service policy. The Forest Service intended to secure a concrete, real property interest in the water resorts use, the right of first refusal, created by the 2015 rule, is by no means a resounding success of obtaining that goal. Finally, the new regulation requires resorts to document whether their current water permits adequately address their needs or if they are using excess water. Aiming to hedge against water over use and potential resort water grabs, this requirement places an added administrative burden on resorts, but allows the Forest Service to better predict water supply shortages during droughts.

What might be the most telling fact about this process is who abstained from involvement. Refusing to throw punches at or for the Forest Service, local and regional environmental groups declined to extensively participate. Although not actively participating in the process, Ken Neubecker, Associate Director at American Rivers, was quick to caution against the direction the Forest Service is moving in this rule making, “[t]hey have a responsibility to the American public to manage these lands properly, and in the West, that means having some sort of administrative authority over what happens with water.”

IV. Conclusion

This struggle for authority over water rights is far from over. Environmentalists and recreationists alike are interested in what impact the new regulation has on water availability and the ability to enjoy the slopes. The immediate effect is maintenance of the status quo. Resorts still hold their water rights and the Forest Service allows the resorts to buy and sell the rights at their own discretion.

This means security for the snow conditions that draw tourists in from all over the country. It also means less than the ideal amount of Forest Service oversight and control. As long as resorts and other private companies continue to hold rights to water that originate on Forest Service land, in years of drought, water that could potentially assist agriculture, municipalities, or preserve local ecosystems will be in the hands of ski resorts for recreation.

Jackson Zoellner

Image: A backcountry skier atop Silverton Mountain in Silverton, Colorado. Flickr user Zach Dischner of Zach Dischner PhotographyCreative Commons.


David Wise, Ending the Budget Wars, THE HILL OP ED (Nov. 5, 2013), http://thehill.com/blogs/congress-blog/economy-budget/189185-ending-the-budget-wars.

Ski Area Water Clause, 80 F.R. 81508, (Dec. 30, 2015) (to be codified at FSH 2709.11, Chapter 50).

Heidi Rucklidge, Ski Area Water Rights: Federal Water “Grab” Resolved?, WELBORN SULLIVAN MECK and TOOLEY PUBLIC LANDS BLOG (Feb. 22, 2016), http://www.wsmtlaw.com/blog/ski-area-water-rights-federal-water-grab-resolved.html.

Allen Best, Who Gave Up What In The Feud About Ski Areas and Water Rights?, MOUNTAIN TOWN NEWS (Feb. 6, 2016), http://mountaintownnews.net/2016/02/06/ski-area-water-rights-forest-lands/.

Nat’l Ski Areas Ass’n, Inc. v. U.S. Forest Serv., 910 F. Supp. 2d 1269 (D. Colo. 2012).

Jason Blevins, Forest Service Backs Off Controversial Water Clause in Ski-Area Permits, DENVER POST (June 18, 2014), http://www.denverpost.com/business/ci_29326058/forest-service-buries-plan-transfer-ski-area-water.

Paige Blankenbuehler, Forest Service Leaves Control of Water Rights to Ski Resorts, HIGH COUNTRY NEWS (Jan. 29, 2016), https://www.hcn.org/articles/new-forest-service-water-policy-leaves-control-of-water-rights-to-resorts.


In the dry, arid desert of the United States, a streak of intense rain can leave residents, lakes, and cacti happy. And the sound of constant tapping of raindrops on windows in California, Nevada, and Arizona are soothing and welcome.  However, in Mexico City, these same sounds mean more than puddle hopping and umbrellas.  Instead, it means floodwater overwhelming the sewer systems and days of sludge and mud in citizens’ homes.  Naturally one wonders how a city often immersed in fresh water pouring from the sky has a water crisis resulting in a public health and environmental nightmare.  The answer lies within a history of poor decisions regarding infrastructure.

Mexico’s rainy season is intense and demonstrates that water is naturally meant to be a part of the landscape. Mexico City, the country’s capital, currently has one of the largest populations in the world, and its citizens are desperate for water. So how did Mexico City end up in a situation where—despite this abundance of water—people do not have enough water to bathe, cook, and maintain their communities?

When the Spanish conquered what is now Mexico City, it was an island located within Lake Texcoco, and while the Spanish were “enchanted” by the area, the lake environment did not captivate them.  The Spanish developed an engineering project that depleted the lake of its natural source of life, allowing for maximum expansion and development.  In an attempt to sustain this development, government administration began draining underground aquifers and nearby lakes. This practice remains in place today, centuries later, as the city’s population and demand for fresh water grows daily. City administrators also draw from underground aquifers as a means of supplying water to citizens, further exacerbating a lack of access to clean water by areas outside of Mexico City.

Marco Alfredo, president of the Mexican Association of Hydro-Engineers, best describes the present situation created by historical misuse: “Mexico City’s situation is chaotic and absurd.  We could have natural pure water, but for hundreds of years we have been draining it away so we have created an artificial scarcity.” he argues. “This is not an engineering problem: we have the expertise and the experience. It is also not a problem of economics: we have the financial resources to do what needs to be done. It’s a problem of governance.”

What is the Solution?

Most people are not surprised when they hear about violence associated with the drug cartels in Mexico. However, most might be surprised to hear is the “artificial scarcity” of water has taken on a similarly dangerous face, where Mexicans in poor neighborhoods hold water delivery truck drivers at gun point and rely on “dealers selling purified water” on the streets just to get access to safe drinking water.  One truck driver recalls being attacked by a mob of people: “They were desperate and angry, and they blamed me because I had water.”

The lack of access to clean water is not only a public health and safety concern, but it leaves those with unfettered access to clean water wondering how the gap between human rights and governance in Mexico City leaves families so desperate for water that they are willing to hold a delivery man at gunpoint to get it.

The government’s response to the crisis has been wildly insufficient.  However, activists, conservationists, and engineers in Mexico are trying to change the way the country views its naturally wet rainy season.  Historically, engineers have worked to create elaborate methods of depleting underground aquifers and lakes by piping, trapping, and diverting water.  Engineers and conservationists accept that “water has never completely stopped flowing naturally to where it historically belongs,” and they believe that the dreaded rainfall filling the streets with water could be a solution to Mexico’s crisis.  Valle de Chalco, once a large lake, is located within Mexico City’s watershed. About thirty years ago, the government tapped into and drained nearby aquifers resulting in ground sink.  As rain naturally fell in the area, the Valle de Chalco hole eventually filled with water, replenishing the once large lake.

Activist Elena Burns with the Water for People, Water for Life campaign, argues the Valle de Chalco lake “should be the heart of the solution,” and by making the lake an additional eight meters deep, “we’d have enough water for 1.5 million people.”  Burns, along with environmentalists, conservationists, scientists, and government officials in charge of dealing with the Mexican water crisis, see the value in naturally collecting rainwater in basins like Valle de Chalco. They argue that collecting rainwater in these types of basins can be done for minimal costs, offering long-term sustainability and turning the problem of rainwater and flooding into a solution for the city’s thirsty citizens.

In addition to the frustrations of activists and environmentalists, citizens are tired of waiting for the government to take action and have begun confronting the water crisis head on.  Like some water-conscious Americans, Mexican citizens are looking to water harvesting as a sustainable solution. Many businesses in Mexico have installed catchment systems that collect and filter rainwater. Hayley Hathaway is the director of Casa de Los Amigos, a business that uses a catchment system. She recognizes that the benefit of these systems is not only that they provide citizens with access to clean water, but also that they ease some of the strain on the city’s infrastructure when it floods: “when it rains, it’s just disastrous in the city, with flooding everywhere.  So if everyone had their own rainwater system, it would solve a pretty big chunk of that problem.”  In other words, if families had the means to collect rainfall before it had the chance to accumulate, it could solve two separate water issues at once: flood prevention and drinking water.


Ramon Aguirre Diaz, the director of Mexico City Water Department argues that in reality  water harvesting is not likely to be successful in Mexico because the cost of implementing such infrastructure is not “financially viable.”  But that viewpoint comes as no surprise to the activists and environmentalists that have long recognized the Mexican government’s deep commitment to large, costly projects rather than small, sustainable changes.  Thus, they have turned their attention to grassroots movements and local citizens to institute change little by little, providing access to rainwater harvesting equipment for individual households.  Although change at the municipal level appears to be nearly impossible, the thirsty citizens are motivated and eager to implement changes to help sustain their own families, leaving activists hopeful for the future.  After all, the Aztecs did not build Teotihuacan pyramids in a day.

Lauren Collins

Image: A tormenta (storm) in Monterrey, Nuevo Leon, Mexico. Flickr user Rick González, Creative Commons.


Jennifer Collins, Going local to solve Mexico City’s water crisis, DEUTSCHE WELLE, (Oct. 20, 2015), http://dw.com/p/1GqnH .

Jonathan Watts, Mexico City’s water crisis – from source to sewer, THE GUARDIAN, (Nov. 12, 2015), http://gu.com/p/4dmxy/sbl .

Kathryn Dickason, Stanford historian unearths greed-drenched origins of Mexico’s groundwater crisis, STANFORD NEWS, (Oct. 17, 2014), http://news.stanford.edu/news/2014/october/mexico-water-crisis-101714.html .

Marianne Goodland, Could this be the year for rain-water barrels in Colorado?, THE COLORADO INDEPENDENT, (Mar. 8, 2016), http://www.coloradoindependent.com/158191/could-this-be-the-year-for-rain-water-barrels-in-colorado.

Ioan Grillo, Dry taps in Mexico City: A water crisis gets worse, TIME MAGAZINE, (Apr. 11, 2009), http://content.time.com/time/world/article/0,8599,1890623,00.html?artId=1890623?contType=article?chn=world.



Denver, Colorado                          April 8, 2016


The final panel of the Symposium  reflected on all the concepts discussed throughout the day, and provided great insight for the future of interstate water compacts.

Professor Jason Robinson, of the University of Wyoming Law School, moderated the three-member panel through a series of pre-scripted questions and insightful answers from each of the panelists.  The panel included: David Robbins of Hill and Robbins, P.C.; Chad Wallace of the Office of the Colorado Attorney General; and Christine Klein of the University of Florida Levin College of Law.

Question 1: “Broadly speaking, what do you view as the most significant shortcomings in the processes by which existing interstate water compacts were negotiated?”

Klein, bringing her perspective from her current work in Florida, said that past compact negotiators “ignored the hard stuff,” and suggested that future negotiations should address those difficult issues while momentum driving the negotiations exists.  Wallace next observed that existing compacts did not “leave enough room” to address future water uses between the parties, such as groundwater use developments and hydrologic interactions.  Robbins concluded by reiterating Wallace’s observations.  He also addressed the fact that existing compacts do not generally include effective dispute resolution mechanisms or grievance processes.

Question 2: “How exactly have these shortcomings in the negotiations been detrimental to the composition and administration of existing compacts?”

Robbins answered first, continuing his line of thought from the last question.  He stated that sovereigns do not want to “give up sovereignty unless they do it intentionally and by their own control.”  With this understanding, Robbins argued that earlier compact negotiations failed to establish dispute resolution mechanisms because these mechanisms intrude on state sovereignty and are outside that state’s decision-making control.  Wallace agreed with Robbins and observed an unwillingness in party states to engage in dispute resolution in the face of ambiguities or unforeseen challenges in the compact’s administration.  Wallace reiterated the difficulties in finding mechanisms to address groundwater use on surface flow.

Klein furthered the conversation on dispute resolution mechanisms by using the Delaware River Basin Compact as an example: the commission implementing that compact has the authority to regulate withdrawal permits, rather than the states.  She then discussed the St. Lawrence-Great Lakes Compact that creates “common minimum standards” and some adjudicatory authority of the commission to address disputes.  Using these more recent compacts, Klein suggested that eastern states that do not have a history of, nor existing, compacts, can look to these unique approaches for problem-solving as they craft new compacts. For example, Klein suggested new compacts could be “tailored” to the “character and flavor and history of the states involved.”  Wallace again reminded the audience that compacts are voluntary concessions of state sovereignty, and those compacting states can engage in that process however best meets their needs.

Question 3: “What is the most important lesson you believe can be gleaned from interstate water compact litigation in the U.S. Supreme Court over the past two decades?”

Wallace joked that “the justices don’t really like to see us.”  He stressed that, because litigation can lead to rigid imposed apportionments, the threat of litigation is an effective tool to “get everyone’s attention” and bring stakeholders to the negotiating table.  Klein emphasized the importance of personalities and personal relationships in compact administration because “compacts are a marriage to death do us part.”  Robbins strongly agreed with Wallace’s previous observation that courts interpret compacts as contracts.  Robbins further argued that such interpretations cannot account for issues of state sovereignty.  Finally, Robbins reminded the audience that there is no “right answer” in interstate water compacts and that compacts are “about making a deal” between sovereigns.

Question 4: “Do you anticipate an increase or decrease in interstate water compact litigation in the future, and which factors do you consider most determinative?”

Wallace expressed optimism that compact administrators are learning to work collaboratively and “keep their options open.”  He referred back to his earlier point, that litigation will likely be a tool to induce negotiations between parties.  Robbins, without making an express prediction, remarked that “serious litigation” on a compact “only happens once; after that, you risk contempt [of court] for not complying” with the imposed judgment.

Question 5: “To what extent, if any, do you anticipate new interstate water compacts will be formed in the future, and which considerations underpin your prognosis?”

Klein addressed this question, discussing in detail her knowledge of current negotiations over the Apalachicola-Chattahoochee-Flint (“ACF”) system among Alabama, Florida, and Georgia.  Klein suggested that these states could “learn from the Western experience” because of the West’s robust history with compact negotiation and litigation.  Klein also suggested that the ACF states have the opportunity to negotiate a compact or equitable apportionment that can “fold in” contemporary concerns, such as the Endangered Species Act and groundwater use, that plague western compacts negotiated before these concerns arose.

Question 6: “How likely is it existing interstate water compacts will be amended or renegotiated in the future?  Which factors do you consider most significant to the initiation and success of such efforts?”

Wallace asserted that renegotiation of existing compacts “just won’t happen.”  Existing compacts, for their shortfalls, are a significant foundation for those resources; any negotiations or amendments would, Wallace posited, “fill in the gaps.”  Robbins then said that, from the perspective of state sovereignty, any renegotiation or significant amendment to existing compacts would require states to “give up something.”  The states would have to change their existing relationships vis-à-vis concessions of state sovereignty.  Robbins also discussed the ability of compact commissions to adopt regulations that govern the administration and implementation of the compacts, and he used the Rio Grande and the Arkansas as two examples of such commission regulations.  He suggested that retaining these existing mechanisms is both more likely and more preferable to complete renegotiation.  Wallace then reiterated the need for compact administrators to build trust and respectful personal relationships amongst themselves.  Robbins concluded the scripted questions with a reminder that, while not preferable, any negotiator must be ready and willing to litigate in the event that negotiations fail.

The floor then opened for audience questions.  One audience member posed a hypothetical question and asked if severe drought, similar to the drought in Australia, would force the renegotiation of the Colorado River Compact.  Robbins assured the audience that the Colorado River Compact addresses shortages, so renegotiation, even in the face of severe drought, would be unnecessary.  Wallace agreed, and further said that such an event would not force compact parties to allocate water differently because all would already be receiving less under the shortage allocations in the compact.

The next question from the audience inquired into the possibility of a compact specifically for the Ogallala Aquifer.  Robbins believed such a compact would be unlikely because of the very different uses of the aquifer by the three overlaying states, and because the Supreme Court decisions on the Republican and Arkansas litigation posited that existing compacts already address groundwater use.  Klein expressed similar skepticism, and described a case between Mississippi and Tennessee regarding different uses and contested ownership of a common aquifer.  Wallace then pointed to the Colorado Supreme Court case of In Re: the Application for Water Rights of Park County Sportsmen’s Ranch as an example of the inclusion of groundwater aquifers in existing compacts and use laws.

Robinson thanked the audience and the panel, and with the conclusion of this panel came the end of the 2016 Symposium.

Aubrey Bertram


Denver, Colorado                          April 8, 2016


At the University of Denver Water Law Review Annual Symposium, Professor Tom Romero, a faculty member at Sturm College of Law and faculty advisor for the Water Law Review, introduced the sixth panel, which featured two attorneys arguing for each side of the Supreme Court case Tarrant Regional Water Dist. v. Herrmann.

Professor Romero began by outlining the case, which the United States Supreme Court (“Court”) decided in 2013, and how it affected litigation over interstate water compacts.  The water compact at issue, the Red River Compact (“the Compact”), includes Texas, Oklahoma, Louisiana, and Arkansas.  This case originated in the Compact area shared by Texas and Oklahoma.  Before introducing the attorneys, Professor Romero summarized the issues in the case, including the Dormant Commerce Clause and water marketing issues that the Supreme Court had not reviewed in many years.

The first attorney Professor Romero introduced was Kevin L. Patrick, a shareholder at Patrick, Miller and Noto, P.C.  Mr. Patrick was counsel for petitioner Tarrant Regional Water District (“District”) in the case.  The District provides water to north-central Texas.  The second attorney on the panel was Star Waring, a shareholder-partner and member of the Natural Resources and Water Law Practice Group of Dietze and Davis, PC.  Ms. Waring is the Practitioner in Residence for the Natural Resources and Environmental Law program at Sturm College of Law.  Ms. Waring spoke on behalf of Susan M. Ryan of Ryley, Carlock, and Applewhite, who was counsel for two amicus parties for respondents in the case, the Oklahoma Water Resources Board (“OWRB”).

After the introductions, Mr. Patrick and Ms. Waring further developed the history behind the case, the Compact, and the two parties. The panelists then presented in a point-counterpoint style.

Mr. Patrick began first by explaining key historical points that led to this dispute.  The first negotiations surrounding the Red River occurred when the United States signed the Treaty of Amity, Settlement, and Limits Between the United States of America and His Catholic Majesty on behalf of the Republic of Mexico.  Under this treaty, Mexico relinquished access, use, and ownership rights to the Red River.  Mr. Patrick next jumped to 1978, when Arkansas, Louisiana, Oklahoma, and Texas divided the waters of the Red River, creating the Compact. Congress passed the Compact into federal law in 1980.  Mr. Patrick made his first argument in favor of the District by detailing that Southeastern Oklahoma to the north of the Red River receives large amounts of rain annually, while North Texas just to the south of the Red River receives unusually small amounts of rain annually.  Mr. Patrick concluded this point stating that Oklahoma discharges 32.5 to 34 million acre-feet of unused stream water through the Red River annually.

Ms. Waring then presented her first counterpoint and explained that although southeastern Oklahoma is abundant in its annual precipitation, the southwestern portion of Oklahoma is very dry. Ms. Waring argued that area of Oklahoma should be the focal point as it contains the largest metropolitan area in the state, Oklahoma City.

Next, Mr. Patrick and Ms. Waring provided a visual of the Red River Compact, and pointed out sub-basin five as the area of the Compact at issue in this case.  Mr. Patrick and Ms. Waring provided a Compact excerpt, Section 5.05(b)(1).  Section 5.05(b)(1) declares that the signatory states shall have equal rights to the use of runoff originating in sub-basin five and designated water flowing into sub-basin five.  Furthermore, anytime there are 3,000 cubic feet per second flowing at a particular point, each of the four states has a right to take twenty-five percent of the water in the river sub-basin.  For reference, Mr. Patrick mentioned that ninety-six percent of the time, there is a flow of 3,000 cubic feet per second in sub-basin five, so the four states have the right to take twenty-five percent of that flow the majority of the time.  Before moving into the procedural history leading up to the Supreme Court appearance, Ms. Waring posed the major question surrounding this case asking “why did Tarrant try to buy water rights from the state of Oklahoma if in fact it had the right to come and divert that water from the Red River in the first place?”  Both Mr. Patrick and Ms. Waring agreed that because the case was appealed from a summary judgment in the district court, the parties could have developed a better factual record had the dispute made it to trial.

Moving into the procedural history, Mr. Patrick and Ms. Waring explained that the District initially filed the lawsuit in the United States District Court for the Western District of Oklahoma.  The District sought declaratory and injunctive relief against the OWRB’s enforcement of Oklahoma statutes.  Those statutes apply stricter standards to applicants seeking to divert water within Oklahoma’s borders for out-of-state use.  The District sought to enjoin this enforcement on the grounds that the Compact pre-empted the statutes and that the statutes violated the Dormant Commerce Clause by discriminating against interstate commerce.  The District Court denied OWRB’s first motion for summary judgment motion on its claims of Eleventh Amendment Immunity. The court granted OWRB’s second motion for summary judgment seeking to dismiss the District’s Dormant Commerce Clause claim.  After appeals, the United States Court of Appeals for the Tenth Circuit held that the Compact did not entitle a Texas water district to take a share of water from a tributary located in Oklahoma, and affirmed the District Court’s decisions.

Mr. Patrick and Ms. Waring then discussed the District’s first Petition for Certiorari, and Mr. Patrick discussed how the Untied States Solicitor General supported granting Cert and believed that the plain language of the Compact favored the District.  The panelists discussed the fact that the Supreme Court looked to a number of other sections of the Compact, focusing more on states’ rights instead of previous legislative history in regard to the Compact.

Before getting to the Supreme Court decision, Mr. Patrick and Ms. Waring broke down the parties’ arguments.  First, Mr. Patrick listed the main points that the District would have made, including arguments on preemption and the Dormant Commerce Clause.  For pre-emption, the District interpreted the provision regarding sub-basin five as allowing it to divert water from a tributary in Oklahoma.  In other words, the District sought to prove that the plain language of the provision created a sub-basin defined by coordinates, not state boundaries, in which each state could access its equal share of the shared pool water from anywhere in the sub-basin.  For the Dormant Commerce Clause, the District argued that the language of the Oklahoma anti-diversion statute for out-of-state entities was discriminatory.  Additionally, it argued that there should be a rule to look at legislative history instead of the states’ rights.  Next, Ms. Waring went into OWRB’s arguments.  The OWRB’s main argument was that the District did not have the authority to enter into Oklahoma physically to divert water for use in Texas.  Furthermore, the OWRB argued that the twenty-five percent allocation of sub-basin five in the Compact meant twenty-five percent of the water within the state’s own boundaries, not anywhere in the sub-basin.  The OWRB argued that states don’t relinquish sovereignty lightly and that whenever a state allows cross-border rights, they are always expressed with clear language.  Finally, the OWRB argued that the dormant Commerce Clause does not apply to “allocated” water and that if anything, Texas’s past efforts to buy that water cut against the District’s argument that it was entitled to the water.

Next, Mr. Patrick and Ms. Waring dove into the Supreme Court case and Justice Sotomayor’s 2013 decision.  The Court affirmed the Tenth Circuit decision on different grounds.  The key rulings, according to Ms. Waring, were that the Court agreed with the OWRB’s argument that a state retains sovereignty over water resources within its boundaries, that the District’s past conduct in attempting to purchase water from Oklahoma demonstrated no cross-border rights, and therefore the District could divert up to twenty-five percent of water in sub-basin five within Texas, but not from Oklahoma.

In their conclusion, Mr. Patrick and Ms. Waring reiterated that it would have been interesting to see the factual record developed had the case gone to trial.  Additionally, they shortly discussed how the lack of language on state boundaries and border-crossings in the Compact played an important role throughout the case.  Finally, the attorneys closed by outlining the key takeaways from the case and from their discussion before taking questions from the attendees.

Joshua Oden




Denver, Colorado                          April 8, 2016


In this panel, Karen Kwon and James “Jay” Tutchton presented differing sides of ongoing conflicts between the federal law and state water compacts concerning the Endangered Species Act (“ESA”).  Kwon, from the Office of the Colorado Attorney General, works in water compact litigation and negotiations.  She has contributed to two amicus briefs submitted to the Supreme Court of the United States regarding state compact issues.  Tutchton has been a public interest environmental attorney for over twenty years, and he is currently a Senior Staff Attorney with the Defenders of Wildlife.  Federico Cheever, an environmental law professor at the University of Denver Sturm College of Law who has written about the ESA, moderated the panel.

First, Kwon offered her approach to this conflict.  She began with a brief recitation of the implications the ESA has among interstate relations.  For instance, the ESA affects water and wildlife management between states because endangered species recovery in one state can affect water supplies in other areas.  Additionally, the ESA implicates the allocation and use of compact water.  Recovery of underwater species under the ESA often requires reserving a steady water supply for recuperation efforts.


Then, Ms. Kwon focused on the state perspective of this competition and described several values that Coloradans hold.  First, Coloradans value their environment.  Conserving and promoting species promotes that way of life.  Second, that quality of life requires a certain availability in water supply.  Attaining a reliable supply of water helps to preserve species and further Coloradans’ way of life.  Finally, Coloradans seek to maintain their ability to manage the resources within their borders.

Kwon next analyzed the ESA and discussed its advantages and disadvantages.  One of its advantages is that lawyers can use it as a tool to effectuate change.  Through litigation, lawyers can try to modify or stop projects that jeopardize endangered species.  Another point in the law’s favor, the ESA protections have proven successful in preventing extinction.  On the other hand, the ESA’s disadvantages include the fact that very few species have recovered to the point that they can leave the endangered species list.  Also, some view the ESA as a threat instead of a tool because the ESA threatens liability for those who do not adhere to its guidelines.  Finally, the ESA contains no long-term incentives looking to the future.  Instead, it focuses on present happenings and immediate incentives.

Before posing her solution, Kwon presented two examples in Colorado of conflicts between the ESA and compacts: the Delta Smelt in the Bay Delta and the Silvery Minnow in the Rio Grande.  The Delta Smelt conflict could dramatically cut the amount of water flowing to Southern California and directly affect the Colorado River.  The Silvery Minnow conflict involves a dwindling fish population in the Rio Grande River, which divides several states’ waters.

Kwon’s proposed solution to this problem is as follows: fit species conservation within the existing structure of water allocation in and between states.  Through this framework, states can create long-term goals and accomplish them while working within the ESA’s parameters.  Additionally, states may find flexibilities under the ESA to allow compliance with water compacts while recovering species.  Kwon then offered several examples from Colorado that embody this solution.  First, a Colorado policy, the Colorado Parks and Wildlife and the Colorado Water Conservation Board (“CWCB”) work to “keep species common” and to recover and de-list already-endangered species.  To do this, the two entities collaborate with public and private groups to collect, exchange, and analyze data and resources on endangered species.  Overall, they use this data to collaborate and try to intervene before listing species as endangered.

Another example illustrating Kwon’s proposed solution concerns the Upper Colorado Recovery Program.  In this program, several public and private entities collaborate to recover four endangered species of fish in the Upper Colorado River without interfering with water rights or compacts.  The program avoids this interference by implementing flow augmentation, monitoring non-native fish, screening large diversions, and constructing fish ladders to help habitat access.  Through these actions, the program maintains compliance with the ESA while promoting the recovery of several endangered fish.  Kwon also mentioned a third example: a water lease in the 15-Mile Reach in Colorado.  Through this action, the CWCB leases approximately twelve thousand acre-feet to preserve the natural environment flows in that area and maintain the goals of the parties involved, such as water use and development.

Kwon summarized by re-emphasizing that the challenges facing species are growing, such as a lack of both long-term solutions and scientific consensus.  In order to combat these challenges, she stressed that water advocates must collaborate and utilize scientific methods.

Tutchton took the podium next, and he started by explaining that the ESA’s process, like a play, consists of “acts.”  In the first “act,” the ESA prescribes the requirements for listing a species as endangered. Researchers utilize the best available science to determine whether extinction poses a danger to a species or a distinct population segment of vertebrate.  The second “act” includes the consultation process, during which the government re-thinks its activities in light of the listing.  This portion prohibits the federal government from making the species’ situation worse.  Finally, the third “act” prohibits anyone from “taking” the endangered species.  In this context, both killing a member of the species and destroying its habitat constitutes a “taking.”

According to Tutchton, the ESA is a paper tiger.  That is, it looks tough, but lawyers may easily disarm it.  In practice, the ESA only removes or modifies the worst-of-the-worst projects.  In the water world, however, Tutchton concedes that the ESA commonly helps water species gain protection and escape extinction.  He attributes this characteristic to the fact-heavy situations and objective, scientific determination. An apparent advantage for water wildlife is that researchers can collect data to calculate with scientific precision the results of a particular action, and thus protect endangered water species from peril.  For example, Tutchton mentioned one case where the predicted extinction of a three-inch fish overruled the construction of a dam.  In that case, researchers produced enough data to conclude the species would become extinct if developers built the dam and blocked its construction.

Next, Tutchton briefly mentioned that one can comply with both of the laws of the river, and then quickly turned to the success of the ESA.  For instance, while the government has de-listed relatively few species, the ESA’s regulations have seen success in perpetuating the survival of listed species.  Going against those that criticize the ESA for a lack of de-listing, Tutchton admitted the ability of the species to recover depends on the means one wants to use.  Certainly more drastic measures can get faster results, but those drastic measures may venture beyond one’s comfort zone.  In practice, the small measures produce small effects, often resulting in maintenance or slow growth of a species.

Additionally, while Tutchton understands the desire for local control, he argued several counterpoints.  First, all species, as national resources, are of national interest.  All people, no matter where they live, have an equal right to enjoy the nation’s wildlife.  Furthermore, the need to list a species represents a local failure of conservation.  The federal government does not manage wildlife until after listing occurs.  Then, the federal government steps in to intervene for the endangered species.  Finally, Tutchton admitted that handing control back to the state, which often caused the endangered status, disappoints him.

Then, Tutchton touched on the issue of drought.  He declared that Westerners routinely live in a drought.  In fact, he hopes people in Colorado and the West more generally remove the word “drought” from their vocabularies, as these areas normally experience little or no precipitation.  Furthermore, Westerners should consider rain or snow an abnormality, especially in states located in a former dust bowl.  Thus, organizations should expect drought-like weather and act in accordance with the expected conditions.

Finally, Tutchton spoke about the future of the ESA.  First, he pointed out the ESA underrepresents real life.  The ESA currently protects fifteen-hundred species, but scientists speculate that number should be around six or eight thousand.  Next, he mentioned that species originally evolved before humans changed the earth’s landscape.  Wildlife originally developed when rivers regularly flooded and followed their natural course.  Now, humans use rivers for transportation and for development.  Creating and managing the workarounds needed to protect the species will only present more difficulty as human development continues. Tutchton summarized by emphasizing that he favors ESA litigation, as it helps to represent underrepresented points of view in critical ventures.

            Connor Pace



Denver, Colorado                          April 8, 2016


At the University of Denver Water Law Review’s Annual Symposium, Assistant Attorney General and member of the Water Rights Unit of the Navajo Nation Department of Justice (“NNDOJ”), Stanley Pollack, spoke about issues and challenges the Colorado River Compact pose to the Navajo Nation’s water projects.  The mission of NNDOJ’s Water Rights Unit is to protect the water rights of the Navajo Nation.  The NNDOJ, as the Navajo Nation’s representative in state and federal litigation, is currently pursuing five general stream adjudications.

Pollack prefaced his presentation by focusing on various Colorado River issues and how interstate compacts put different restraints on Navajo water development, particularly in the context of drinking water projects.  Pollack emphasized the need to provide drinking water to the Navajo Nation.  Pollack pointed out that thirty to forty percent of the Navajo physically haul their drinking water in barrels.  Pollack illustrated this point with a picture drawn by an elementary school student from Lake Valley, New Mexico.  The picture was one of many drawings elementary school children submitted during the Navajo Gallup Water Supply Project (“Supply Project”) hearings.  The drawings were supposed to depict what water meant to the children and the importance of water.  The drawing Pollack showed was of a pick-up truck with two large barrels with the word “water” written on them in the truck’s bed.  This drawing demonstrated that there were generations of children within the boundaries of the Navajo Nation that do not think drinking water is something that comes out of a faucet, but from a barrel in the back of a truck.

Pollack then asked the audience to imagine themselves as members of the Navajo before the explorative efforts of the Europeans.  He showed aerial maps of what the Navajo Nation used to be in contrast to what it became after European migration and the establishment of the United States.  The Navajo called their homeland Dinétah, and it encompasses the land between the Four Sacred Mountains: Mount Blanca, in Southern Colorado; Mount Taylor, in New Mexico; San Francisco Peak, in Arizona; and Mount Hesperus, in Colorado.  What becomes evident, said Pollack, is that this is high desert country, subject to a dry and arid climate with little development.  He emphasized that the Navajo had been thriving in this area for hundreds of years, until the day when foreign people came along and began drawing boundaries on the land.


The first boundary was the establishment of the Navajo Reservation.  The reservation greatly reduced the land that the Navajo called home.  Next, state boundaries began forming and the Navajo saw the U.S. government parcel up its homeland, subjecting them to boundary lines the Navajo had no say in forming.  Then, in 1922, the Navajo saw the U.S. government divide the Colorado River Basin into an upper and lower basin.  Pollack explained that, once again, the United States subjected the Navajo to boundaries they had no say in forming, but must abide.  Pollack noted that with each boundary line came new political constraints on the Navajo.  The boundaries told the Navajo where they could and could not live and what they could and could not do on the land.  These restrictions imposed limits on what the Navajo could do with their water, and that, Pollack said, is what he wanted to discuss.

Pollack quoted the language of Article VII of the Colorado River Compact: “nothing in this compact shall be construed as affecting the obligation of the United States to the Indian tribes.”  He said that by this language, the rules and boundaries on the map should not apply to the tribes.  However, in reality, this is not the case.  The Navajo finds themselves almost entirely in the Colorado River Basin—upper and lower—and within the three states of Arizona, New Mexico, and Utah.  The geography of the Navajo Nation, Pollack said, makes it difficult to protect the water rights of the Navajo because there are so many entities at play, each with its own rules, regulations, and characteristics.

Pollack then rhetorically asked why, if the language of the compact really meant what it said, is providing water to the Navajo such a problem.  He answered this by saying that, as an attorney for the NNDOJ, he can litigate and litigate, but at the end of the day, only Congress has the power to authorize a water development plan for the tribes.  Therefore, Congress will use that power as it sees fit, and, ultimately, litigation is a “hollow exercise.”  Litigation yields merely paper water rights, and the people Pollack represents cannot drink water from the paper he might obtain in litigation.  Consequently, when the Navajo want to develop their water, they must go to Congress and request the funding necessary for that project.  In doing so, they have to make sure that what they want to do fits within the political systems in place.  Pollack explained that the Colorado River Basin is not just about where the watersheds are on a map or the water within the system, but rather the areas that can receive water because of the Colorado River System.

Pollack next discussed how the upper basin is composed of the parts of the upper-basin-states Lee Ferry serves.  Lee Ferry is the dividing point between the upper and lower basins.  The lower basin is composed of those parts of the states without the drainage of the Colorado River system.  This means any part of a state, whether in the upper or lower basin, is really part of the upper basin if water from the upper basin can serve it.

The only parts of New Mexico considered part of the Colorado River Basin are in the lower basin, Pollack said.  He then displayed a map and pointed out the Navajo Nation, the San Juan River Basin, and the New Mexico Water Rights Settlement.  The centerpiece of the New Mexico settlement, Pollack said, is the Supply Project.  He explained that there are two pipelines coming from the San Juan River that serve communities in the upper basin and lower basin in New Mexico, the Rio Grande area, and Arizona.  Pollack noted that this creates four different communities needing water delivery.  Delivering water from the San Juan River to communities in the upper basin of New Mexico requires little transportation because the communities use water from the upper basin.  Pollack further explained that the geographical location of the upper basin makes sending water to the Rio Grande very simple, but sending water to the lower basin more difficult because the lower basin has the drainage of the Colorado River System.

It is as odd paradox, Pollack continued, that the rules essentially encourage an out-of-basin use of water by sending water to the Rio Grande where there is no return flow to the Colorado River.  While, at the same time, the rules are set up against using water in the lower basin where there is the drainage of the Colorado River System because the waters below Lee Ferry can serve the lower basin.  However, in 2003, Pollack went to the Upper Colorado River Commission and persuaded the body to allow the Supply Project to deliver water from the upper basin to the lower basin, provided that the Supply Project consider the water use as an upper basin use.  What is important about this, Pollack said, is that the states can work together to find solutions to interstate problems even though the laws of the river on their face do not allow for such actions.

Pollack concluded his speech by introducing a pipeline project that he said is still “a pipe dream.”  The project, called the Western Navajo Pipeline, would deliver water to the Western portion of the Navajo Nation.  Pollack explained that the Western portion of the Navajo Nation is an area to which it is particularly difficult to get water because there are no sources of ground or surface water apart from the Colorado River.  This forces most Navajo to haul their water.  Pollack asserted that because it is so hard to get water from the Colorado River in the Grand Canyon, the Navajo should get water from Lake Powell.  Therefore, he proposed to pump water from Lake Powell above the basin, and then pump it down into the Western Navajo area.  Pollack thinks that the precedent set from the New Mexico settlement, as well as the Upper Basin Resolution from 2003, should allow this pipeline pipe dream to become a reality.

Tucker Allen


Denver, Colorado                          April 8, 2016


Ted Kowalski, Chief of the Interstate, Federal & Water Information Section of the Colorado Water Conservation Board, moderated a panel at the University of Denver Water Law Review Annual Symposium featuring three speakers addressing different perspectives from the Lower Basin.

The first speaker was Bill Hasencamp, Manager of Colorado River Resources, Metropolitan Water District of Southern California (“MWD”).  Hasencamp represented the municipal provider perspective on the panel.  MWD covers a one trillion dollar economy, 5,200 square mile service area, and—as one of the largest water providers in the country— approximately nineteen million residents.  Hasencamp explained how the drought in the 1990s forced Southern California to rethink the way it rationed water.  In response to the drought, Southern California devised an integrated resource plan for meeting reliability needs of the region.  The plan focused on agricultural to urban transfers and augmenting the dry year water supply with storage.  According to Hasencamp, the plan was effective, but maintaining the water supply has been a challenge for several reasons.

One challenge has been the geography of the delta between Northern and Southern California.  According to Hasencamp, the state water project receives water from the Sacramento River that comes into the delta from the North.  The pumps for both the state water and central valley project are both in the South.  Therefore, in order for the water to move between Northern and Southern California, it must move through the delta.  Unfortunately, fish swim too close to the pump and, in order to protect them, state and federal environmental regulations have forced Southern California to reduce pumping with increasing frequency.  Hasencamp explained that this year alone, during the worst drought in California’s history, California lost nearly a million acre-feet of water because fish were swimming too close to the intake.  In addition to fisheries, other long-term risks on the delta include seismic concerns with the bay area fault, as well as rising seal levels.  Hasencamp warned that if catastrophe hit, the delta could become an inland sea, and that this might prohibit the pumping of water for years.

Hasencamp then asserted that the focus needs to be on getting the delta functioning again in a way that will protect the environment and meet the water needs of the state.  Hasencamp explained that MWD believes the way to do that is through tunnels under the delta.  With tunnels, if a catastrophe occurred and the delta failed, Southern California would not lose pumping as the state could still receive water from the river upstream.  Tunnels would also ensure that Southern California could obtain water in a way that protects fish from pumps.  The plan is currently up for approval and Hasencamp is hopeful that it will pass.

Another challenge for California has been the apportionment on the Colorado River.  Hasencamp explained that a series of compacts and agreements give each state a certain allocation of the Colorado River.  After fifty years, California saw a dramatic reduction in its apportionments under the Colorado River Compact.  As a result, the state had to develop a plan to limit water intake in order to live within the reduced allocation.  In response, California developed a plan with other states to keep the Colorado River Aqueduct full until the year 2016.  Through the combination of special surplus water and agricultural to urban transfers, the aqueduct would theoretically have stayed full until 2016.  However, Hasencamp described a catch in the plan: Lake Mead had to remain at least two-thirds full.  Unfortunately, as he explained, MWD did not anticipate the worst drought in the history of the Colorado Basin.  As a result, Southern California did not receive the anticipated water from the river and instead had to shift its focus locally toward developing recycling, desalination, groundwater recovery, and conservation plans.  Hasencamp briefly discussed some of these plans including implementing agricultural conservation measures with Imperial Irrigation District (“IID”) to grow the same crops with less water; lining the American and Coachella canals; developing programs to incentivize farmers not to grow crops; entering a water sharing agreement with Nevada; and developing the Lake Mead Storage Program.  Hasencamp explained that even as the drought in California continues, extra water does exist.  Unfortunately, California cannot pump the water so they are still receiving drought allocations.  In conclusion, he suggested that fixing the delta would help to alleviate this tension.

The second speaker was Chuck Cullom, Manager of Colorado River Programs, Central Arizona Project (“CAP”).  He represented an agricultural and urban perspective.  To begin, Cullom gave a brief overview of the Colorado River System describing it as “the engine of the west.”  While not even in the top twenty largest rivers in North America, the Colorado has four times the annual run-off in storage capacity.  CAP delivers water to four million people in Arizona, provides water for cities and irrigation, and has the most diverse customer classes in the Colorado River system, serving eleven tribes, ten irrigation districts, and ten cities.

Like Hasencamp, Cullom emphasized the steady decline in Lake Mead and the implications it had for CAP.  Currently, the Lower Basin runs at a deficit of about 1.2 million acre-feet every year.  In accordance with the compact, MWD and California have invested billions to reduce their water use from 5.1 to 4.4 million acre-feet, and, still, Lake Mead is declining.  The decline undermines the effectiveness of these cooperative agreements.  Cullom explained that from CAP’s perspective, it must bear the burden of this shortage from what, it believes, is a shared obligation.  The Colorado River system is a linked system of seven states in the Lower Basin.  As the reservoir declines, the reductions grow.  When Lake Mead evaporates, apportionments do not factor in that reduction.  But through cooperative agreements, states have been able to define what shortages will look like in the Lower Basin.

During the first anticipated shortage, Cullom clarified that CAP’s underground water storage will diminish and agriculture customers could be cut by more than half.  In light of the persistent long term risk of shortage, CAP has developed several responses.  First, it has invested millions into storing water underground to protect users from shortages.  Second, like MWD and IID partners in California, CAP has begun storing water in Lake Mead to prop the reservoir up in order to avoid immediate shortage issues and reduce the risk of long-term shortage issues.  CAP has reduced annual diversion by between 140,000-180,000 acre-feet.  By the end of this year, CAP will have stored 345,000 acre-feet in Lake Mead.

Cullom concluded by emphasizing that the structural deficit creates a long-term risk to all Lower Basin Colorado River users and undermines the ability to become cooperative and collaborative partners.  CAP is attempting to follow the lead of California in developing proactive steps to reduce its use, but also is looking to collaborate and cooperate with Lower Basin partners to assist and share in those additional reductions.

The final speaker was Kevin Kelly, General Manager of IID.  He represented the irrigation perspective in a district with the largest number of agricultural to urban transfers in the nation.  According to Kelly, because California has been exceeding its 4.4 million acre-foot entitlement to the Colorado River, IID entered into transfer agreements to bring California “back in line.”  As Kelly explained though, “the only dangling question mark is the Salton Sea.”

According to Kelly, Imperial Valley is an economically-challenged community with 450,000 acres in active cultivation.  Because of the vast farmland and economic nature of the community, the recession of the Salton Sea will have devastating impact on the Imperial Valley.  When the Salton Sea issue first arose, the state of California took responsibility for handling it, focusing primarily on restoration.  However, as Kelly explained, California failed to fulfill its responsibility.  In 2014, in order to bring this issue to the forefront, IID filed a petition with its own state water board.  It informed California of its failure to meet the task of tackling the Salton Sea problem and requested the state board resolve the Salton Seat question as a condition of the transfers.

By the year 2047, 74,000 acres of lakebed will lay exposed, and the water elevation will be negative 249,090 feet.  To address the issue, IID suggests filling up the lakebed with habitat and renewable energy projects.  Kelly argued that renewable energy projects would be especially effective because the same exposed lakebed in the Salton Sea happens to correspond with this hemisphere’s largest untapped geothermal resource.  Kelly asserted that this resource could replace the lost generation at the San Onofre nuclear plant.  Yet, unlike the plant, the Salton Sea would have virtually no emissions.

Kelly noted that California has the most aggressive renewable portfolio standard in the nation as well as the most ambitious greenhouse gas reduction bills.  But in the last four years since San Onofre went down, air in California has become markedly more polluted.  According to Kelly, geothermal energy should be an integral part of the solution to filling up the exposed lakebed.  Kelly argued that IID could not enter another quantification settlement agreement when it is struggling to implement the first one.  At the end of his speech, he posed a rhetorical question: When you pit agriculture against all the other uses in California, who decides whose economic project is more important?  Kelly answered: “In a diversified economy in the southwest, agriculture needs to count for something.”

Neillie Fields