Unlike the fertile land of the eastern United States, the West is arid and water has consistently been a constrained resource. Faced with a need to establish water rights tailored to these circumstances, the western States established the prior appropriation doctrine, coined “first in time, first in right.” Today, it is the law of land in most of the West. Under this doctrine, ownership of water is established through a hierarchy of titles: senior appropriators and junior appropriators. While both senior and junior appropriators’ access to water is constrained by the amount of water the environment provides, senior appropriators enjoy first access to the water. Today, the state of Colorado is debating a deceptively straightforward question hundreds of years after the introduction of this doctrine: who is the senior appropriator of rainwater falling on rooftops in urban and suburban areas?

On one hand, the foundations of prior appropriation establish that all water is subject to a claim of ownership at some point. Rainwater marks water’s introduction into the land and it eventually navigates downstream into bodies of water where water rights are likely firmly established. Under this rationale, the collection of household rainwater would ultimately harm the public because, when collected, it is no longer introduced downstream into larger bodies of water. In this view, the rainwater collector unjustifiably collects rainwater to the detriment of those downstream, including municipalities, farmers, and other water users.

On the other hand, household rainwater collection supporters emphasize that the amount of water collected through this method is minimal and does not pose serious risks for downstream users—97% of rainwater never encounters streams and is instead harvested by plants or evaporated back into the cycle. Instead, where using established household water supply lines to irrigate flowerbeds and gardens leads to an “out of sight, out of mind” perspective of the amount of water used, rainwater collection presents an opportunity for increased water user awareness. In turn, this increased awareness encourages a more individualized connection to the scarce resource leading to conservation on a micro-level.

Colorado’s Historical Approach

In 2009, the Colorado legislature began to address these questions by passing two laws related to household rainwater collection. Together, the bills allow residents of the state with private wells to collect rainwater for specific uses. These uses are limited to: ordinary household purposes, fire protection, livestock and domestic animal watering, and the irrigation of not more than one acre of gardens and lawns. Today, residents of urban areas who are connected to the city water system remain precluded from collecting rainwater in any manner, including cistern or tanks, for later use.

Other Western States’ Approaches

Colorado has not been alone in its effort to answer questions related to household rainwater collection. Until 2010 in Utah, rainwater collection required an existing water right covering the land where water was collected. However, due to public demand, today only registration with the city water authority of an intention to collect rainwater is required. Similarly, in Idaho, rooftop rainwater collection is permitted so long as the water is put to beneficial use. The landowner of property where water is collected has an unqualified right to collect the water, so long as it does not cause injury to another water user.

In New Mexico and Arizona, rainwater collection is encouraged. Santa Fe, N.M., exemplified the state’s embracing rainwater collection policy by passing an ordinance requiring the collection of a minimum of 85% of rooftop rainwater for all newly constructed dwellings within the city.

Recent Developments in Colorado

Colorado remains the last state to maintain an explicit ban for those connected to a city’s water system to collect rainwater. However, prominent water-related organizations, including Denver Water, Conservation Colorado, Environmental Defense Fund, and many others, support Colorado House Bill 15-1259. The bill allows all Colorado residents living in a single-family residence or multi-family residences with four or fewer units to collect rainwater in 100-gallon barrels, with a maximum of 600 gallons of water collected per year. The collected water must be used on the property where it was collected and applied to outdoor purposes only, such as irrigation and gardening. To illuminate the amount of water involved, advocates of the measure emphasize that the goal of collected rainwater is small in scale: 100 gallons would sufficiently water a small flowerbed or garden, but would not be sufficient to water a full lawn.

The bill, having passed the House Agriculture, Livestock & Natural Resources Committee, is currently facing heated debate in the Colorado House. Opponents argue the rainwater collection provisions amount to an effort to circumvent the existing and long-established water rights system of Colorado. Supporters, however, counter by emphasizing that the collected water ultimately ends up in the ground, available for downstream use.

Colorado Should Expand Permissible Rainwater Collection

Whether Colorado will leave its status as the last holdout and join the trend of Western states to allow, permit, or encourage rooftop rainwater collection remains to be seen. However, the existing water systems of urban areas of Colorado unfortunately allow urban citizens to maintain an inaccurate understanding of just how limited water is across the state and region. If for no reason other than increased awareness in urban communities of the limited nature of water, rooftop rainwater collection should be seriously considered. Further, because most of the water that an individual may collect through this method ultimately evaporates or is harvested by plants, allowing for a more directed use among flowerbeds and gardens does not pose unreasonable constraints on potential downstream users. Rooftop rainwater collection in Colorado presents a new opportunity for conservation that, in aggregate, may aide water rights holders by encouraging water conservation.


The title image features a rainwater collection device used by the U.S. Bureau of Land Management. This image is part of the public domain.


Franklin Cub River Pumping Co. v. Le Fevre, 311 P.2d 763 (Idaho 1957).

Frequently Asked Questions, Utah Division of Water Rights, http://www.waterrights.utah.gov/wrinfo/faq.asp (last visited Mar. 22, 2015)

Gray water and Rainwater Harvesting for Residents, Arizona Department of Water Resources, http://www.azwater.gov/azdwr/StatewidePlanning/Conservation2/Residential/Graywater_Rainwater_Harvesting.htm (last visited Mar. 22, 2015).

Joey Bunch, Colorado “rain barrel bill” hits choppy water in tough House debate, The Denver Post (Mar. 20, 2015), http://www.denverpost.com/news/ci_27752850/colorado-rain-barrel-bill-hits-choppy-water-tough.

Kirk Johnson, It’s Now Legal to Catch a Raindrop in Colorado, The New York Times (June 28, 2009), http://www.nytimes.com/2009/06/29/us/29rain.html?_r=1&adxnnl=1&adxnnlx=1427043841-EcJMlLlrI4iVE6xM/6DMrA&.

Leonard Rice Engineers, Inc. et al., Holistic Approach to Sustainable Water Management in Northwest Douglass County (2007), http://cwcbweblink.state.co.us/WebLink/ElectronicFile.aspx?docid=105705&&dbid=0.

Letter from Phillip J. Rassier, Deputy Attorney General, Department of Water Resources, State of Idaho, to Gary J. Schroeder, Idaho State Senator (Aug. 11, 2008) (on file with author), available at http://www.harvesth2o.com/adobe_files/Idaho_Ltr%20Sen%20Schroeder%20081108.pdf.

Nate Downey, New Mexico Office of the State Engineer, Roof-Reliant Landscaping (2009), http://www.ose.state.nm.us/water-info/conservation/pdf-manuals/Roof-Reliant-Landscaping/RRL-CoverContentsIntro.pdf.

Press Release, Conservation Colorado, Legislature Supports Rain Barrels for Coloradans (Mar. 16, 2015) (on file with author).

Rain Barrel Fact Sheet, Conservation Colorado, (Mar. 18, 2015), http://conservationco.org/2015/03/rain-barrel-fact-sheet/.

Rainwater Collection and Graywater Reuse, Colorado Division of Water Resources, Department of Natural Resources, http://water.state.co.us/SURFACEWATER/SWRIGHTS/Pages/RainwaterGraywater.aspx (last visited Mar. 22, 2015).

S.B. 080, 2009 Leg. (Colo. 2009).

Santa Fe, NM., Land Development Code art. 3, § 2.4.1 (2003).

Water Harvesting, City of Tucson, AZ., http://www.tucsonaz.gov/tdot/water-harvesting (last visited Mar. 22, 2015).

The Great Paradox

São Paulo, Brazil, a metropolis of roughly 20 million, is facing a water crisis unparalleled in modern times. Although it is almost paradoxical that the most populated city in a country holding twelve percent of the world’s fresh water could find itself in this perilous position, the extreme drought is no mirage,. Powered by climate change, pollution, incompetent infrastructure, and a lack of governmental foresight, the water shortage is disrupting many Brazilian’s day-to-day lives, as mandatory water rationing is forcing São Paulo residents to go days without water. In response, some have resorted to drilling their own wells or hoarding water in buckets to satisfy simple hygienic needs. Water-dependent industries are struggling to maintain ordinary operations as well. The New York Times recently quoted local São Paulo bar owner Maria da Fátima Ribeiro asking: “Imagine going three days without any water and trying to run a business in a basic sanitary way.” Hospitals are asking similar questions amid reports that the Cândido Fontoura children’s hospital’s water taps ran dry earlier this month.

Reservoir’s Running Dry

The area’s water supplies are running dangerously low, as the Cantateria Reservoir system (which is compromised of five reservoirs and feeds nine million people) sat at only five percent capacity as of mid February. Similarly, the Alto Teite network supplies three million people and remains below fifteen percent. Calculations of predicted rainfall and the area’s consumption demands suggest the greater São Paulo region’s water supply is four to six months away from complete depletion, before the November rains arrive. State officials are poised to enact further rationing restrictions—a structure that would allow residents water only two days a week—if this month’s rains do not refill the reservoirs. While early March rains raised the Cantateria Reservoir system’s water level to nearly fourteen percent, the stricter rationing system will likely be implemented in the near future.

 Too Little Too Late

Aside from trucking in water, there is little else Brazilian officials can do in the short term. As thirty percent of the city’s treated water is lost due to pipe leakage, it is impossible to overhaul an incompetent system without an enormous time and financial investment. While the water utility is seeking to “reduce” leaks, imposing fines for overconsumption, and offering conservation incentives, none of these plans can induce rainfall, which is the only answer to the urgent demand. Further, although plans to draw water from a nearby river basin and construct new reservoirs are underway, they will not be completed until well into next year.

Toxic Rivers

São Paulo’s lack of proper industrial waste disposal and open sewage system prevents otherwise available resources from being accessed as well. The Tiete and Pinheiros Rivers, which traverse the city, rank among the most polluted rivers in the world; rather than water, thick ooze flows in certain sections of the rivers. While utilizing river water appears an obvious solution to augment the depleting reservoirs, treating water that is ashen gray in appearance and emits a strong odor of rotten eggs is not an option.

Flying Rivers Grounded

Climate change, fueled by deforestation, is another culprit in the crisis. Recent scientific studies indicate that the deforestation of the Amazon River basin, hundreds of miles away, is reducing South America’s available precipitation. A large tree in the Amazon rainforest can evaporate 300 liters of water a day, while, as a whole, the Amazon basin evaporates 20 billion tons of water vapor daily (more water than the Amazon River discharges into the Atlantic Ocean). Trees release this vapor into the atmosphere, creating a thick level of migratory mist known as a “flying river.” Winds usually propel the flying river west until the imposing Andes Mountains re-direct the moisture south, where it eventually winds up as rain in southern Brazil. However, as the Amazon’s deforestation increased over ten percent from last year, the flying river failed to appear this year. Many worry the flying river will never return.

Hitting Close to Home

The situation in São Paulo, and Brazil as a whole, makes the arid American West seem like an oasis. However, the dichotomy of the wet places grappling with fresh water shortages is not unique to Brazil, it is happening in America as well. When water is treated as a scarce resource, law and policy reflect its societal value. Colorado’s original prior appropriation system and recent modifications to create flexible water markets echo this. Foresight for water shortages was built into our system, but other areas are not afforded the present “luxury” we were originally burdened with.

Take Florida for example, as the fifth wettest state in the country creating a cautious water regime was not a concern,. Today, the lack of management and infrastructure forces Floridians to rely on groundwater for ninety percent of consumption. This is troubling because population and consumption projections indicate that by 2035 Florida will need to pump 250 million more gallons of water than the Florida Aquifer even holds.

Florida must learn from Brazil’s lack of foresight before it is too late. What was once taken for granted now needs to be seriously considered. Hopefully, it takes less than severe water rationing to motivate Florida, and states across the country, to engage in responsible and forward-thinking water management.


The title image features São Paolo and is licensed under the Creative Commons Attribution 2.0 Generic license to Andre Deak. Deak does not endorse this blog.


Jan Rocha, Drought Bites as Amazon’s “Flying Rivers” Drying Up, Climate News Network, September 14, 2014, available at http://www.climatenewsnetwork.net/drought-bites-as-amazons-flying-rivers-dry-up/.

Erin Sullivan, Will Florida’s Impending Water Crisis be Addressed by State Legislature? As the 2014 Session Draws to a Close, it Looks Less and Less Likely, Orlando Weekly, April 15, 2014, available at http://www.orlandoweekly.com/orlando/will-floridas-impending-water-crisis-be-addressed-by-state-legislature/Content?oid=2242828.


Maruissa Whatley & Rebeca Lerer, Brazil Drought: Water Rationing Alone won’t Save Sao Paulo, The Guardian, February 11, 2015, available at http://www.theguardian.com/global-development-professionals-network/2015/feb/11/brazil-drought-ngo-alliance-50-ngos-saving-water-collapse.


Simon Romero, Taps Start to Run Dry in Brazil’s Largest City, New York Times, February 16, 2015, available at http://www.nytimes.com/2015/02/17/world/americas/drought-pushes-sao-paulo-brazil-toward-water-crisis.html?_r=1 .

Simon Romero, A Willing Explorer of Sao Paulo’s Polluted Rivers, New York Times, December 14, 2012, available at http://www.nytimes.com/2012/12/15/world/americas/a-diver-sifts-through-sao-paulos-polluted-rivers.html?pagewanted=all&_r=0.

New Zealand Herald, Heavy Rains don’t End Threat of Water Rationing in Brazil, March 12, 2015, available at http://www.nzherald.co.nz/world/news/article.cfm?c_id=2&objectid=11415906.

Panel 3

Federico Cheever is Professor of Law at the University of Denver Sturm College of Law specializing in environmental law, property law, wildlife law, and public land law. Professor Cheever came to Denver as an Associate Attorney for the Sierra Club Legal Defense Fund (1987-1989). He briefly engaged in research with the Natural Resources Law Center at the University of Colorado School of Law. Between 1990 and 1993, he was an associate at the law firm Faegre & Benson. Professor Cheever has represented environmental groups in cases under the Endangered Species Act, the National Forest Management Act, the National Environmental Policy Act, the Wilderness Act and a number of other environmental laws. Professor Cheever clerked for Judge Harry Pregerson of United States Court of Appeals for the 9th Circuit in Los Angeles (1986-1987). Professor Cheever earned his bachelor’s and master’s degrees from Stanford University, and he earned his JD from UCLA in 1986.

David Robbins is president and co-founder of Hill & Robbins, P.C., where his practice focuses on water and natural resources law, water quality, and environmental law.  Mr. Robbins served in the U.S. Army (Captain, 1969-1972) and with the U.S. Environmental Protection Agency, Region VIII (1973-1974).  He then joined the Colorado Attorney General’s Office as a First Assistant Attorney General and head of the Natural Resources Section (1975-77), and was later appointed the Deputy Attorney General (1977-1978).  Mr. Robbins represented the State of Colorado in a variety of interstate water matters, and served as counsel to the state engineer in adjudication proceedings and trials concerning basin-wide rules and regulations. In 2012, Mr. Robbins was named the Colorado Water Leader of the Year. He earned his bachelor’s degree from Stanford University and his J.D. from the University of Wisconsin – Madison.

Sandra B. Zellmer is a professor of law at the University of Nebraska College of Law where she teaches and writes about natural resources, water law, public lands, environmental law, and other related topics. Zellmer is published on a variety of environmental topics. She served as a committee member on the National Academy of Sciences National Research Council Committee on Missouri River Recovery. She is active in the ABA’s Section on Environment, Energy, and Resources, in particular, the Section’s committees on public lands and on water resources. Prior to teaching, she was a trial attorney in the Environment and Natural Resources Division of the U.S. Department of Justice, litigating public lands and wildlife issues for various federal agencies, including the National Forest Service, National Park Service, and Fish and Wildlife Service. She also practiced law at Faegre & Benson in Minneapolis, Minnesota, and clerked for the Honorable William W. Justice, U.S. District Court, Eastern District of Texas. Professor Zellmer obtained her bachelor’s degree from Morningside College and her J.D. from the University of South Dakota School of Law. She also received her L.L.M in Environmental Law from the George Washington University National Law Center.

Amy Beatie began her tenure at the Colorado Water Trust in 2007, after nearly six years practicing water litigation at two different Front Range water law firms.  Prior to practicing water litigation, she clerked for the Honorable Gregory J. Hobbs of the Colorado Supreme Court.  She obtained her undergraduate degree from Dartmouth College and her law degree from the University of Denver Sturm College of Law.  While in law school, she helped found the University of Denver Water Law Review, and eventually served as its Editor-in-Chief.  She now sits on its Advisory Board, as well as the Advisory Board of Metro State University’s One World One Water Center and the Board of Directors of the Colorado Water Congress.  In May of 2013, she received the Colorado Foundation for Water Education’s Emerging Leader award.

Panel 4

Retired Justice Jean Dubofsky is an attorney who has represented litigants in state and federal courts — primarily appellate courts — in constitutional, tort, workers’ compensation, commercial, criminal, civil rights and family law cases. Dubofsky served as a justice on the Colorado Supreme Court from 1979 until 1987, the first woman appointed to the court. She was lead counsel for the plaintiffs in the successful constitutional challenge to Amendment 2 to the Colorado Constitution; the case, Romer v. Evans, is the first time – 1996 – that the United States Supreme Court recognized gay rights. Awards she has received include the ABA Margaret Brent Women Lawyers of Achievement Award, the ACLU Carle Whitehead Memorial Award for “exceptional commitment and dedication to civil liberties and the state of Colorado,” and the Boulder Daily Camera Lifetime Achievement Pacesetters Award. She has served on the boards of Bell Policy Center, the Colorado Center for Law and Policy, Rocky Mountain Wild and Boulder Community Hospital. Dubofsky is a 1967 graduate of Harvard Law School and a 1964 graduate of Stanford University.

Retired Justice Alex Martinez served as a member of the Colorado Supreme Court from 1997 to 2011. He was appointed by Governor Roy Romer. Justice Martinez served as Deputy State Public Defender in Denver. He began his career as a judge in 1983 when he was appointed by Governor Richard Lamm to the Pueblo County Court. In 1988, he began his nearly decade-long position on the Colorado 10th District Court. He has received numerous awards including the Alumni Award for Distinguished Achievement from the University of Colorado, the Pioneer in the Hispanic Community Award from the Denver Hispanic Chamber of Commerce, and a Lifetime Achievement Award from the Hispanic Bar Association. Justice Martinez also serves on the Reed College Board of Trustees and the Servicios de la Raza Board of Directors. He earned his bachelor’s degree from the University of Colorado in 1973 and his J.D. from the University of Colorado School of Law in 1976.

Retired Chief Justice Michael Bender was appointed to the Colorado Supreme Court in 1997. He became Chief Justice in 2010 until January 2014. In 2013, Chief Justice Bender received the Colorado Judicial Institute’s Distinguished Judicial Leadership Award and the Judicial Branch’s award for Outstanding Service and Leadership. Prior to his appointment to the Colorado Supreme Court, Chief Justice Bender was President and shareholder of Michael L. Bender, P.C. He practiced with Bender & Treece, P.C. between 1983 and 1993. Chief Justice Bender served as an adjunct faculty member at the University of Denver College of Law from 1981 to 1986. He also served as Division Chief for the Denver Public Defender (1977-1978) and Supervising Attorney for the Jefferson County Public Defender (1975-1977). Chief Justice Bender earned his bachelor’s degree from Dartmouth College in 1964 and his J.D. from the University of Colorado School of Law in 1967. He also attended the Institute of Criminal Law and Procedures Masters Program at the Georgetown Law Center in 1967.

Panel 1

Professor Lucy Marsh teaches classes on property, trusts & estates, and civil procedure at the University of Denver Sturm College of Law. She is founder and director of the Wills Lab, a popular, innovative class in which students write real wills, medical powers of attorney, living wills, and burial instructions for elderly and low income people in the Denver area. Professor Marsh was awarded the Excellence in Teaching Award, Law Stars, in 2010. She has been given the Denver Bar Association’s Pro Bono Service Award, and has served on the Board of Governors for the Colorado Bar Association, the Board of Metropolitan Denver Legal Aid, and was appointed by the Governor to the Colorado Real Estate Commission. She is a member of POETS, a select group of lawyers specializing in real estate matters.

Serna of the New Mexico Supreme Court will read J. Hobbs’s poem “An Oath as Good as Fry Bread” and speak about his efforts to bring together the state court judicial community with tribal court judges in order to bring about just outcomes despite jurisdictional complications.

Troy A. Eid is a principal shareholder in the Denver office of the law firm of Greenberg Traurig. Mr. Eid previously served as U.S. Attorney for the District of Colorado. He specializes in complex federal, state and tribal litigation at the administrative, trial and appellate court level. Mr. Eid’s recent awards include “Lawyer of the Year” by Law Week Colorado (2011) and “Member of the Year” by the Navajo Nation Bar Association (2012). Mr. Eid serves as an Adjunct Professor of Law at the University of Colorado School of Law. He earned his bachelor’s degree from Stanford University and his JD from the University of Chicago Law School, where he was an editor of the Law Review. Mr. Eid clerked for the Honorable Edith H. Jones, Chief Judge of the U.S. Court of Appeals for the Fifth Circuit.

Professor Sarah Krakoff currently serves as a professor at the University of Colorado School of Law. Professor Krakoff teaches and is widely published in the areas of American Indian law and natural resources law. She served as Director of the American Indian Law Clinic and prior to joining the faculty at CU she worked as a Director of the Youth Law Project for DNA – People’s Legal Services with the Navajo Nation. Professor Krakoff earned her bachelor’s degree from Yale University and her JD from U.C. Berkeley. She also clerked on the Ninth Circuit Court of Appeals for Judge Warren J. Ferguson.

Panel 2

Patty Limerick is the Faculty Director and Chair of the Board of the Center of the American West at the University of Colorado, where she is also a Professor of History. Professor Limerick graduated from the University of California at Santa Cruz in 1972. She received her Ph.D. in American Studies from Yale University in 1980. Prior to joining the faculty at the University of Colorado, Professor Limerick was an Assistant Professor of History at Harvard. Limerick received the MacArthur Fellowship (1995 to 2000) and the Hazel Barnes Prize, the University of Colorado’s highest award for teaching and research (2001). Professor Limerick is well published, including a 2012 discussion of the history of water in Denver in A Ditch in Time: The City, the West, and Water. Limerick has served as President of the Organization of American Historians, American Studies Association, the Western History Association, and the Society of American Historians, and as the Vice President of the Teaching Division of the American Historical Association.

Professor Romero is an Associate Professor of Law and is Affiliated Faculty with the Department of History at the University of Denver. He teaches and researches in the areas of the legal history of the American West, Latinos and the law, school desegregation in multiracial contexts, property, land use, water law, and urban development and local government in the United States and Latin America. He currently serves as the Assistant Provost of IE Research and Curriculum Initiatives at the University. Prior to joining the faculty of the University of Denver Sturm College of Law in 2010, Dr. Romero was a Professor of Law and History at Hamline University School of Law. From 2000-2003, he also served as the Western Legal Studies Fellow at the University of Colorado at Boulder’s Center of the American West, Law School and Department of History.

Professor Susan Schulten is professor and chair of the history department at the University of Denver, where she has taught since 1996. She is the author of “Mapping the Nation: history and cartography in nineteenth-century America (2012) and The Geographical Imagination in America, 1880-1950, both with the University of Chicago Press. Professor Schulten earned her B.A. from the University of California at Berkeley, and her doctorate from the University of Pennsylvania. In 2010 she was awarded a Guggenheim Fellowship for her research on maps. In 2013 the Pacific Coast Branch of the American Historical Association awarded Mapping the Nation the Hundley Prize for the most distinguished work of history written by a scholar in the American or Canadian west. Since 2010 she has contributed to the “Disunion” series in the New York Times, which commemorates the sesquicentennial of the American Civil War.


Featured Speakers

Chief Justice Rice was appointed to the Colorado Supreme Court on August 5, 1998. She became Chief Justice on January 8, 2014. Prior to serving on the Colorado Supreme Court, Chief Justice Rice served as a Denver District Court Judge and as an Assistant U.S. Attorney for the District of Colorado. She has also taught as an adjunct Professor of Law at the University of Colorado School of Law since 1987. She has served as an elected member of the CBA Board of Governors and the CBA Executive Council. Chief Justice Rice is well published and has won numerous honors during her legal career, including the Denver Bar Association Judicial Excellence Award.

Justice Allison H. Eid was sworn in as Justice of the Colorado Supreme Court on March 13, 2006.  Before joining the Court, Justice Eid was the Solicitor General of the State of Colorado, serving as the chief legal officer to the Colorado Attorney General and representing Colorado officials and agencies in state and federal court.   She was also a tenured Associate Professor of Law at the University of Colorado School of Law. Justice Eid previously practiced with the Denver office of the law firm of Arnold & Porter. She clerked for the Honorable Clarence Thomas, Associate Justice of the United States Supreme Court, and for Judge Jerry E. Smith of the United States Court of Appeals for the Fifth Circuit in Houston, Texas. Justice Eid earned her bachelor’s degree from Stanford University and her JD from the University of Chicago

States throughout the West face depleting water resources and no source epitomizes this reality more than the rapidly depleting groundwater levels in the Ogallala Aquifer. Appropriation of the aquifer during the early-to-mid twentieth century has taken a drastic toll on the water source in western Kansas where irrigators rely on groundwater due to a lack of significant annual rainfall. Officials in Kansas have been aware of the rapid depletion for decades, and in 1982 the Kansas Water Office and the Army Corps of Engineers published a feasibility report for a 360-mile aqueduct from the Missouri River in Northeast Kansas to a reservoir in Southwest Kansas. Officials believed that an aqueduct could serve as a replacement for the depleted aquifer. The report predicted the cost of building the aqueduct to exceed $4 billion with an annual maintenance cost of nearly $500 million. High costs and other factors made the project little more than a fantasy in 1982, but in January 2015 the Army Corps of Engineers and the Kansas Water Office released an updated feasibility report. The updated report has prompted significant debate about how to solve the problem of declining water levels in Western Kansas. The report initiated a discussion among officials in Kansas and states throughout the Missouri River Basin about whether a project of this scale represents a necessary approach to water management in the Midwest or indicates that policymakers are avoiding decades of inefficient management practices. The problem arose out of misguided theories about beneficial use and wasteful agricultural practices, and the solution exists in reformation of the current and future management practices that prioritize efficiency, sustainability, and conservation.

Current and Future Demand for Groundwater

Kansas has long been known as the “Breadbasket of the World” as a result of a climate conducive to wheat production and a significant agricultural labor force. In 1888, the Topeka Capital-Journal acknowledged Kansas’s wheat producing capabilities when it claimed, “In wheat, Kansas can beat the world.” Despite improving irrigation technologies, the updated aqueduct report notes that irrigation makes up 85 percent of water use in Kansas. Policy makers at the state and federal levels utilized the Irrigation Water Conservation Fund and the Environmental Quality Incentives Program to incentivize a shift from flood irrigation technology, relying on small trenches to provide crops with nourishment but wasting water due to runoff, to center pivot irrigation, which provides water to crops via large sprinklers. Increased corn and sorguhm production is one major reason for the sustained levels of water use because these crops require intensive amounts of water. In 2012 wheat still accounted for 40 percent of all acres cultivated in Kansas, but since the 1980s corn production in the state has increased significantly, making up 20 percent of acres planted in 2012.

Irrigation in western Kansas is depleting groundwater levels at a rate six times faster than the aquifer’s recharge rates. The updated aqueduct study utilized a Kansas Geological Survey tool to demonstrate the amount of time it will take for the aquifer to have levels too low to support current irrigation practices and the quantity of water required from the proposed aqueduct to replace the depleted groundwater. The report notes that the quantity of water needed to replace current irrigation demand in five years is 354,420 acre-feet; 528,731 acre-feet in ten years; 1,00,433 acre-feet in twenty five years; 1,862,620 acre-feet in fifty years; and 2,657,808 acre-feet in 100 years.

Current Policy Approach

With such quickly depleting groundwater sources, officials in Kansas, like many other states, need to reconsider their approach to water management. As Stanford affiliated scholar, Burke Griggs, noted in Lessons from Kansas: A more Sustainable Groundwater Management Approach, Kansas seemingly has a policy framework that creates channels for conservation. In 1945, the state legislature enacted the Kansas Water Appropriation Act. The Act transitioned Kansas from a riparian-based system for allocating water rights to a prior appropriation system, or “first in time, first in right.” The Act provides the state with administrative tools for responsible allocation of water resources, such as granting the Chief Engineer the authority to approve or reject applications for water rights.

Furthermore, the Groundwater Management District Act was enacted in 1978 in an attempt to provide for more localized management of groundwater resources. First, the Act outlined the means by which water right holders in a given region may initiate proceedings to create a Groundwater Management District, whereby water right holders play a role in the development of regional water policy. The act also outlined the means by which the Chief Engineer and/or water right holders utilizing mostly groundwater sources for irrigation can initiate proceedings for the creation of Intensive Groundwater Use and Control Areas (“IGUCAs”). The process involves a more localized approach to implementation of corrective measures addressing the over appropriation of water rights. For example, if the chief engineer or the water right holders determine that the water problems in the region warrant enhanced management, the IGUCA may close the area to any future appropriation and require increased conservation measures. There are currently nine IGUCAs throughout Kansas: (1) McPherson, (2) Burrton, (3) Pawnee Valley, (4) Pawnee-Buckner-Sawlog, (5) Lower Smoky Hill River, (6) Upper Smoky Hill River, (7) Arkansas River Valley, (8) Hays, and (9) Walnut Creek.

Professor Griggs identified some of the possible reasons for the ineffectiveness of current legal, administrative, and policy solutions in Kansas. First, Professor Griggs noted that part of the issue stems from the original administration of the prior appropriation doctrine. During the first few decades of the state’s adoption of the doctrine, state officials over-appropriated groundwater resources. Though officials became more cognizant of over-appropriation, they continued appropriating water to satisfy the rise of corn and soybean cultivation. This resulted in more allocated rights than water to satisfy the rights. Second, Professor Griggs discussed the inability for the Chief Engineer to effectively deal with the over-appropriation problem because water right owners are not actually committing violations. Any efforts by the Chief Engineer to regulate the resource granted to current right holders may also lead to undesirable legal and political outcomes, including retaliation from the state’s irrigators. Finally, Professor Griggs noted that Kansas’s groundwater irrigators also have not attempted to protect their senior rights over the junior right holders. Impairment investigations are a tool by which a senior right holder can request that Kansas Division of Water Resources officials inspect the circumstances hindering the senior right holder’s access to their fully allocated amount. Senior water right holders are reluctant to initiate impairment investigations due to their concern about findings leading to increased corrective controls and further restrictions on their own ability to use the water. All of these issues have led to largely ineffective control of water right holders and their use of the rapidly depleting resource. Officials now must consider alternative solutions such as those proposed by the updated aqueduct study.

At approximately the same time the Kansas Water Office released the updated aqueduct study and also released the 50-year vision for water in Kansas called, “A Long Term Vision for the Future of Water Supply in Kansas.” The plan included a number of policy considerations and a framework for the sustainability of Kansas’ water supply. Officials in charge of developing the vision sought to incorporate localized solutions, while trying to avoid regulations or mandates, and instead implement voluntary, incentive-based conservation and management schemes.

The Aqueduct

The proposed study accepted by the Kansas Water Office includes an extensive discussion about options for the construction of the aqueduct, which would be a 360-mile concrete canal. The plan calls for a source reservoir in northeast Kansas with a storage capacity of 700,000 acre-feet (228 billion gallons), as well as a terminal reservoir located in western Kansas storing water for use by irrigators. The terminal reservoir would have a storage capacity of nearly 1.6 million acre-feet (517 billion gallons). Fifteen pumping stations along the canal would allow for a flow capacity of 6,830 cubic-feet-per-second (cfs). The 1982 plan proposed a lock and dam diversion structure across the Missouri River. Lock and dam structures allow for diversion of water while also allowing barge traffic to pass from lower water elevation to upstream water elevations. However, along with proposing the same lock and dam diversion method, the 2015 study also proposes horizontal collector wells (“HWC”) as an alternative to the lock and dam approach. HWCs supply water to pump stations by infiltrating water from the river source through a water pump extending to the desired depth.

The water transfer system size is determinative of the project cost. Project costs for a 2,000 cfs, lock and dam transfer system are expected to be approximately $8 billion. The total cost rises to approximately $18 billion for a 6,000 cfs system. With a 10,000 cfs system, the study predicts a $28 billion total cost.

Reaction to the Study

Residents of Kansas have mixed reactions. Many Kansans voiced their concerns about the multibillion-dollar price tag, while some Kansans contemplated the idea as a plausible solution to a problem that threatens the state’s long-term economic vitality. Opposition to the plan arises from a variety of sources. For one, residents of northeast Kansas are concerned about the swath of quality farmland that would be submerged in the capture reservoir near White Cloud. State water officials are also questioning the idea and Kansas Water Office Director, Tracy Streeter, stated, “I don’t think this concept is the way forward.”

The plan also has its supporters in the state. Farmers throughout the western portion of the state are inevitably concerned about their livelihood, as well as the livelihood of future generations of Kansas farmers. Supporters of the plan contend that the aqueduct would simply supply the parched western portion of Kansas with other regions’ excess water. For example, supporters look to 2011 when Kansas faced a drought and parts of the Missouri River Basin suffered substantial flooding.

Missouri residents and officials had a significant, negative reaction to the release of the updated study. Recognizing the vital importance of the Missouri River to its economic well-being, Missouri officials were quick to criticize Kansas Officals and the release of the study. Missouri Governor, Jay Nixon, even acknowledged the proposal in his January State of the State address in which he called the aqueduct a “hare-brained idea” and stated that Missouri could not let the project move forward. Missouri newspapers wrote articles and published editorials about the outlandishness of the idea and maintain that the only feasible approach to Kansas’ water problems is conservation and drought resistant crops.

Future Action

The solution to Kansas’ groundwater problems does not exist in the updated Kansas aqueduct plan. Years of over appropriation of water resources and a century of Army Corps of Engineers engineering projects should be a lesson to current and future water management officials. The answer does not exist in engineering projects that allow water users to continue using water at current rates like the Kansas aqueduct project. Rather, state officials, water right holders, researchers, and other interests must work together to identify methods for slowing down the depletion of the Ogallala Aquifer and allow the Missouri River to flow in the future the same way that it flows today.

Enhanced use of IGUCAs is a possible means of establishing more widespread water management practices. IGUCA stakeholders are able to satisfy many local interests when developing management practices, whereas statewide regulations might not consider the factors present on a regional basis. Providing irrigators with a say in groundwater management practices is important for buy-in and success of management program.

State officials must utlitize to the fullest extent the legal and administrative framework that already exists and work to establish innovative conservation initiatives. The ideas outlined in “A Long Term Vision for the Future of Water Supply in Kansas” represent a more reasonable and long-term solution to the depleting Ogallala Aquifer. For the state of Kansas to maintain its status as a world leader in agriculture, officials must recognize the opportunity to pave the way for thoughtful and innovative answers to the problem of high demand for a small supply of water resources. The state of Kansas depends upon finding a reasonable solution to maintain its economic vitality and a high quality of life for its residents, but a 360-mile aqueduct will only act as a temporary solution to the more systematic problem of over consumption of the nation’s water resources.

The title image features a pivot irrigation system in Kansas. This image was created by an employee of the United States Department of Agriculture and as such is part of the public domain.



Associated Press, Kansas Leads Nation in Wheat, Sorghum Crops, The Topeka Capital-Journal (June 11, 2014), http://cjonline.com/news/2014-06-11/kansas-leads-nation-wheat-sorghum-crops.

Burke Griggs, Lessons from Kansas: A More Sustainable Groundwater Management Approach, The Bill Lane Center for the American West (Mar. 4, 2015), http://waterinthewest.stanford.edu/resources/forum/lessons-kansas-more-sustainable-groundwater-management-approach.

Kansas Water Office & U.S. Army Corps of Engineers, Update of 1982 Six State High Plains Aquifer Study (Mar. 12, 2015), available at http://www.kwo.org/projects_programs/Aqueduct/Rpt_Aqueduct_Study_Update_012715_kf.pdf.

Lisa Pfeiffer and C.Y. Cynthia Lin, The Effect of Irrigation Technology on Groundwater Use, Choices The Magazine of Food, Farm and Resource Issues, March 2010.

Peyton Fleming, Corn Farming in the Midwest Heavily Taxes Water Resources and Supply, The Guardian (June 23, 2014), http://www.theguardian.com/sustainable-business/2014/jun/23/corn-farming-midwest-water-pollution-nitrates-scarcity.

Tim Carpenter, Mo. Gov. Vows to Fight Aqueduct Idea, Kansas Agland (Jan. 22, 2015), http://www.kansasagland.com/news/local_state_news/mo-gov-vows-to-fight-harebrained-aqueduct-idea/article_c59ffe37-9bc6-5beb-b299-a4ee0ea3c5a1.html.

Kansas Water Office, A Long Term Vision for the Future of Water Supply in Kansas (Mar. 12, 2015), available at http://www.kwo.org/50_Year_Vision/rpt_Kansas_Water_Vision_%20Final_%20Draft_%20012815.pdf


Earth’s coral reefs are in danger. Sometimes referred to as “the rain forests of the oceans,” coral reefs are invaluable to ocean and dry land ecosystems. Two immediate threats are substantive. Rising ocean temperatures threaten coral species’ health and environments, as do recurrent introductions of manmade pollutants to coral ecosystems. There are actions humans can take today to support the health and self-sustainability of coral reefs and to defend those reefs from their impending disappearance.

The Great Barrier Reef

The Great Barrier Reef (“GBR”) is Earth’s largest reef system, and it is composed of over 2,900 individual reefs. It provides permanent and temporary habitat to more than 2,100 species of whales, dolphins, porpoises, turtles, birds, sea snakes, fish, and ascidians. Roughly 10% of Earth’s fish species can be found within the GBR. It is an incredibly popular tourist destination, annually hosting over two million visitors who generate approximately 5-6 billion AUD per year.

One of the greatest current threats to the GBR is the ongoing and harmful introduction of pollutants, mainly nitrogen, sediment, and horticultural pesticides. Recently, Australian Federal Environment Minister Greg Hunt announced that Australian governments would soon invest roughly 2 billion AUD to protect the GBR from threats to its water quality. The funding prominently supports the Wet Tropics Program, which is focused on providing grants to farmers to help them to improve their land management practices, specifically in relation to fertilizer use and disposal. Because pollutants are harmful to the GBR and other coral reefs, it is important for farmers to be well educated on best practices as they relate to the use and disposal of horticultural chemicals. There has been recent progress, but it has been slight. According to a combined 2012 and 2013 Reef Plan Report Card, average levels of pollutants entering the GBR had been reduced from previous levels, but only by 10% for nitrogen, 11% for sediment, and 28% for pesticides.

Members of the Australian Green Party (“the Greens”) argue, however, that Mr. Hunt’s word is disingenuous. The Greens assert that the GBR has lost 50% of its coral over the last 27 years and that it stands to lose another 50% (of what remains) in the next 10 years. The Greens are concerned about development of (and plans to develop) portions of Australian coastlines for use as coal and gas ports because those ports require or will require massive amounts of dredging and dumping that pose substantial harm to the GBR. The Greens accuse government majorities of “approving the world’s largest coal port in the [GBR]” and of being on track to approve five more coal and gas ports.

The Caribbean Reefs

Threats to Earth’s coral reefs extend beyond the GBR. Worldwide, between 25% and 33% of all life forms in the oceans make their homes in coral reefs even though coral reefs account for just one-tenth of 1% of the ocean floor. Roughly 500 million humans depend on coral reefs for food, coastal protection, and tourism, and the net economic value of coral reefs is roughly 30 billion USD per year globally. Caribbean coral reefs are essential to the economies of 38 countries and millions of people. A United Nations report on March 31, 2014 warned of substantial threats to Earth’s coral reefs, arguing that coral reefs are “the most vulnerable marine ecosystem[s] on Earth,” and that they could be completely gone within two to three generations if actions are not taken now. Illustratively, one estimate places the Caribbean’s coral losses at 80% in the last 50 years.

Near Belize, Glover’s Reef lost nearly 84% of its coral cover between 1971 and 1999, a span of only 28 years. Yet, Glover’s Reef is one of the Caribbean’s healthiest coral ecosystems. In August of 2014, the National Oceanic and Atmospheric Administration listed 20 species of coral as threatened under the Endangered Species Act (“ESA”). Rising ocean temperatures make for water that is more acidic, and water that is more acidic is less hospitable for – and dangerous to – coral species. Ocean acidity may increase by as much as 250% by the year 2100. As is case with the GBR, though, Caribbean reefs are also significantly threatened by human intrusion and pollution. Excessive pressure from tourism and insufficient, or nonexistent, controls on development currently allow for the ongoing introduction of manmade pollutants to Caribbean coral reefs.


Despite the at-times overwhelming conditions impacting Planet Earth’s coral reefs, recent findings indicate all is not lost. Recent research indicates that there are concrete actions humans can take to mitigate damages to reefs and to help reefs recover. Humans can prevent overfishing. Humans can prevent overdevelopment. Humans can prevent the introduction of manmade pollutants to coral reefs.

Even as climate change remains real, importantly, human intervention aimed at preventing overfishing, overdevelopment, and pollution can greatly and immediately reduce localized stressors. If humans are careful about how they implement and maintain sustainable fishing practices, develop land and oceanic resources, and dispose of harmful chemical pollutants, they will promote coral reefs’ abilities to be most resilient to climate change.

Further, some scientists and environmentalists are exemplifying care through the thoughtful implementation of constructive action. Conservationist Ken Nedimyer founded the Coral Restoration Foundation (“CRF”). CRF is a nonprofit group that raises coral in nurseries before transplanting that healthy coral in Florida reefs, and the group is helping coral reefs in their self-sustainability through that introduction of healthy coral. Biological oceanographer Chris Langdon, as another example, has been diligently studying ocean acidification for over twenty years. Langdon is soon due to release new findings that corals can adapt, survive, and grow amid increasing acidification so long as those corals are able to feed on natural foods. He argues that humans can help support corals’ abilities to feed on natural food sources through developing and supporting nurseries, and he has shown that such actions can be effective even in the face of great climactic threats such as rising CO2 levels.

Legislation may be key. Extended research and actions such as listing species under the ESA can provide insights and raise awareness, but cannot execute changes to human systems of operation to the extents legislation can. There are pertinent examples of legislative processes impacting real change. Certain Australians are working to ban dredging and dumping through legal avenues. Barbuda has enacted legislation to protect species of fish and prevent overfishing, particularly through the establishment of marine sanctuaries. The Bahamas, Belize, Bonaire, Cuba, and Curaçao are currently working through legislative processes to enhance marine protections. But there is more work to be done. Whether humans choose to take action to protect the Earth’s coral reefs or choose to do nothing, their decisions will have far-reaching impacts on planetary health and on hundreds of millions of lives – human, marine, or otherwise.


The title picture features an aerial view of the  Great Barrier Reef and is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license. The owner of this image does not endorse this blog.


Marie Sansom, Waters Muddied Over Great Barrier Reef Health, Government News (Jan. 30, 2015), http://www.governmentnews.com.au/2015/01/waters-muddied-over-great-barrier-reef-health/.

Laura Parker, As Oceans Heat Up, A Race to Save World’s Coral Reefs, Nat’l Geographic (Jan. 15, 2015), http://news.nationalgeographic.com/news/2015/01/151015/coral-reef-death-climate-change-science-animals/.

Jeremy Jackson & Ayana E. Johnson, We Can Save the Caribbean’s Coral Reefs, N.Y. Times (Sept. 18, 2014), http://www.nytimes.com/2014/09/18/opinion/we-can-save-coral-reefs.html?_r=0.

Bryan Walsh, The Last Coral Reefs, Time (Apr. 03, 2014), http://time.com/48001/the-last-coral-reefs/.

Great Barrier Reef, Australia’s Great Natural Wonder, http://www.greatbarrierreef.org/great-barrier-reef-facts.php (last visited Feb. 23, 2015).


The Salton Sea is California’s largest lake covering 350 square miles. The lake is a terminal lake with no outflows and its salinity is 50 percent greater than that of the ocean. It was created by an engineering mistake when Colorado River floodwater breached an irrigation canal in 1905. Irrigation runoff from the Imperial and Coachella valleys and local rivers maintains the Salton Sea. Although the lake was created by accident, it is an essential habitat for a variety of species from fish to migratory birds.

The QSA Agreement

In 2003, California and three of its water districts, Imperial Irrigation District (“IID”), Coachella Valley Water District (“CVWD”), and San Diego County Water Authority (“SDCWA”) signed the Quantification Settlement Agreement (“QSA”). The primary purpose of the agreement was to ensure that California did not withdraw more than 4.4 million acre-feet from the Colorado River. In order to meet growing residential needs for water, IID agreed to transfer water from Imperial Valley farms to CVWD and SDCWA. Every year, IID agreed to send an additional 100,000 acre-feet of conserved water to CVWD and 200,000 acre-feet of conserved water to SDCWA. This makes the QSA “the largest ever farm-to-city water transfer in U.S. history.”

However, in order to transfer the additional conserved water to CVWD and SDWCA, California and the water districts knew that runoff from the Imperial Valley farms would decrease and threaten the Salton Sea which relies on the agricultural runoff to maintain its water levels. Because the Salton Sea is a saline terminal lake, the reduction of inflows not only causes the water levels of the lake to decrease, but also increases the salinity. Further, by reducing the inflows to the Salton Sea, the QSA poses a threat to the natural habitat of many species relying on the Salton Sea to survive.

To mitigate the harm to the Salton Sea caused by reducing farmland runoff, the QSA imposed water conservation measures on both IID and the state of California. First, the QSA agreement required IID to provide mitigation flows to the Salton Sea for 15 years after the agreement. After 2017, the QSA relieves IID’s duty to supply the Salton Sea because of increasing amounts of water sent to fulfill residential needs in CVWD and SDWCA. Once IID ceases sending mitigation water to the lake, the Salton Seas water levels will decline dramatically. The QSA also requires California to develop a plan by 2018 to maintain the Salton Seas water levels and minimize the harm caused by ceasing the mitigation water flows from IID.

Threats Caused By Reducing Flows to the Salton Sea

The declining water levels of the Salton Sea pose a threat to animals and humans alike. More than 400 species of birds rely on the Salton Sea to survive. The Salton Sea also provides an essential stop for many migratory birds.

Further, as the Salton banks continue to recede, more than 100,000 acres of lakebed will be exposed to the California air. Silt, fine-grain soil, and salt particles from the lake create toxic dust which degrades the air quality and exacerbates respiratory problems in humans. The asthma rates for children in the areas surrounding the Salton Sea are the highest in the State of California.

Finally, the Salton Sea creates a favorable climate, which allows farmers to grow certain crops in the winter. These crops account for almost 80 percent of the winter crops grown in the United States.

Plans to Mitigate the Harm Caused by Decreasing Water Levels

In 2007, California developed a plan that would cost over $8 billion to implement, but the State has little hope of raising more than $82 million by 2047, which would be too late. As of 2015, it is still unclear as to whether California has a definitive plan to preserve the water levels of the Salton Sea. However, “the Oakland-based Pacific Institute projected that without action to address the Salton Sea’s deterioration, the long-term social and economic costs . . . could range between $29 billion and $70 billion over the next 30 years.”

Because it seems like California will be unable to implement a plan by itself, the IID and other groups are drafting their own plans to preserve the Salton Sea on a smaller scale. The IID is currently working on the Salton Sea Restoration and Renewable Energy Initiative. Under this initiative, the Salton Lake will decrease to two-thirds its current size and on the dried out shores, IID will build geothermal plants. The purpose of the initiative is to produce renewable geothermal energy using the exposed portions of the lakebed. Further, by developing on the exposed portions of the lakebed, emissions of dust particles into the air will be mitigated. IID aims to produce enough energy through the project to power more than one million homes.

California has yet to approve IID’s plan for the Salton Sea. However, time is running out for the Salton Sea with under three years before IID ceases mitigating water flows.

The title image features pelicans enjoying the Salton Sea and is licensed under the Creative Commons Attribution 2.5 Generic License. The owner of this image does not endorse this blog.


Background Information on the Salton Sea, Cal. Dep’t of Fish & Wildlife, https://www.wildlife.ca.gov/Regions/6/Salton-Sea-Program/Background (last visited Feb. 16, 2015).

Felicity Barringer, Preserving an Accident, the Salton Sea in California, for the Good of Nature, N.Y. Times (Nov. 10, 2014), http://www.nytimes.com/2014/11/11/us/-salton-sea-migrating-birds-preserving-a-mistake-made-by-our-meddling-with-nature-.html?_r=0.

Ian James, IID Presses State to Live up to Salton Sea Commitment, Desert Sun (Jan. 21, 2015), http://www.desertsun.com/story/news/environment/2015/01/20/salton-sea-iid/22082375/.

Quantification Settlement Agreement, Water Educ. Found., http://www.watereducation.org/aquapedia/quantification-settlement-agreement (last visited Feb. 16, 2015).

Restoring the Salton Sea, Salton Sea Restoration & Renewable Energy Initiative, http://renewablesforsaltonsea.com/quantification-settlement-agreement/ (last visited Feb. 16, 2015).

Ker Than, Can California Farmers Save Water and the Dying Salton Sea?, Nat’l Geographic (Feb. 18, 2014), http://news.nationalgeographic.com/news/2014/02/140218-salton-sea-imperial-valley-qsa-water-conservation/.