The Colorado Water Plan, released in 2015, called for the use of alternative transfer methods (“ATMs”) to help meet growing municipal water needs while preserving agricultural communities. However, very few of these projects have been established—due in part to cities’ reluctance toward temporary water supplies. But a new type of perpetual ATM may bring the assurances cities require and help make ATMs a viable alternative to the permanent sale of agricultural water rights and the negative outcomes of such buy-and-dry transfers.

ATMs have successfully moved water from agricultural irrigation to a variety of uses, including municipal, industrial, and environmental. Despite these victories, ATMs have been slow to catch on—particularly in Colorado, where ATMs are relatively new—due to uncertainty of how these deals will play out in the long term. ATMs are traditionally temporary leases of water from agricultural irrigators to municipalities, and the brief duration of these water rights has made cities reluctant to become involved in the process. However, a new kind of ATM that leases water in perpetuity may be the answer to questions of reliability and encourage new ATM projects in the future.

It is no secret that the arid western United States is running low on water, and drier, warmer weather could be the new normal in Colorado and the West. A recent study, commissioned by the Colorado Water Conservation Board (“CWCB”), found that Colorado’s average temperature has risen by about 2 degrees Fahrenheit over the last thirty years. But that has not stopped rapid population growth in urban and suburban centers, and warmer temperatures will challenge states’ ability to provide a reliable water supply to meet the competing water demands of rapidly growing cities, farms, and ecosystems. As more people move west, cities will have to find new, creative ways to provide sufficient water.

To meet municipal water demands, cities have increasingly purchased senior agricultural water rights, and permanently removed that water from the farms—a process known as “buy-and-dry.” While such transactions can be profitable for individual farmers, they threaten to undermine rural communities as the farmers and supporting businesses move out of the area, resulting the economic collapse of agricultural communities and environmental degradation. To combat the negative consequences of buy-and-dry, water users, researchers, and policy makers are developing innovative strategies and policies to improve the flexibility of western water law. Many states have adopted new policies that allow for water to be leased, rather than bought outright.

These alternative transfer methods have been used in other western states for decades, and Colorado is finally catching up, passing legislation that allows for a more streamlined, and less costly, process for implementing water transfers than traditional pathways through the water court system. The Colorado legislature has passed several bills in past ten years that create pilot programs to test the legal and functional validity of ATMs and make ATMs easier to administer.

However, even though pilot programs such as the Catlin Canal Pilot Leasing-Fallowing project have been successful, the water world moves slowly. ATMs have been met with considerable skepticism from agricultural water rights holders and cities alike. Some farmers are concerned that ATMs will lead to their water rights being taken, and cities have concerns over the certainty and reliability of leased—rather than purchased—water. But a first-of-its-kind ATM developed between Larimer County and the City of Broomfield has provided an answer to the lack-of-certainty argument by establishing a lease that is operational in perpetuity.

 

CALIFORNIA AND ARIZONA

Several western states have long histories with ATMs. For example, California and Arizona have established various forms of rotational lease-fallowing agreements—wherein farmers forgo irrigating a portion of their land for a growing season and lease the saved water.  In 2013, the Yuma Mesa Irrigation and Drainage District and the Central Arizona Groundwater Replenishment District entered into a pilot short-term fallowing program to help keep water in the Colorado River. In northern California, several water districts in Sacramento River Valley entered into one-year leases to provide water to a group of water districts, called the Westside Districts, to supplement their water needs during a drought, by fallowing parts of land historically used for rice farming. The southern California cities of San Diego and Los Angeles have temporary leased water from farmers in the Palo Verde and Imperial valleys for years, and these programs have helped meet municipal needs while keeping agricultural lands in production. Colorado legislators, looking to these and other examples, decided that if ATMs could work in those water-short states, they might work for Colorado, too.

 

COLORADO

Like other Western states, Colorado water law is rooted in the principles of prior appropriation. Under this doctrine, a water right is merely a usufructuary right, meaning that the water right holder has permission to use a state’s public water resources in a specific way defined by the type water right granted. However, that is not to say that there is no inherent property interest in a water right. Water rights can be sold, leased, conveyed, or donated, in whole or in part. Water rights include the right to change the type and place of use, as well as the point of diversion, so long as other water rights holders are not injuriously affected. To ensure no injury occurs when one water right holder wants to change the use or location of the right, applicants generally must go through a formal judicial process in Colorado’s water court system.

Unlike other Western states, Colorado has a dedicated court system for the establishment and transfer of water rights. While the Colorado water court system has received praise for its due process, fairness of outcomes, and expertise of water judges and referees, it can also be a time-consuming and expensive process. Despite recent efforts to improve efficiency, the water court process remains a difficult undertaking. Because of the time and money required to change a water right, temporary transfers of water are generally not seen as worth the effort. So permanent sale of agricultural water rights and the negative impacts of buy-and-dry continue. In order to protect agricultural communities and still provide water for growing cities, the Colorado Water Plan promotes the use of ATMs.

ATMs help prevent the negative consequences of buy-and-dry by allowing farmers to maintain legal ownership of their water rights, while temporarily transferring that water for municipal or industrial uses. Alternative transfer methods come in many different models, including rotational fallowing agreements, deficit irrigation, interruptible water supply agreements, payments for conservation, water banks, and crop switching. ATMs provide a streamlined permitting process that keeps water transfer cases out of the expensive and time-consuming water court. For example, an interruptible water supply agreement (“IWSA”), which allows water right holders to temporarily transfer their historical consumptive use to another water user without permanently changing the water right, can be approved by the state engineer (outside of water court) as an option agreement which can be exercised for up to three out of ten years and can be renewed by the state engineer for as many as three ten-year periods total (or, thirty years). Notification requirements for IWSA applicants ensure that potentially affected water users can object to the IWSA if they think their water rights may be injured. However, since ATMs are a relative newcomer to water management, establishing an ATM presents potential legal, financial, and structural challenges—problems that legislators in Colorado have been trying resolve.

The Colorado General Assembly has passed various bills designed to make water law more responsive to the challenges of today’s changing water allocation needs. In 2003, legislators passed a law that enables the use of IWSAs. Another bill, passed in 2013, clarified the rules for long-term water leases, helping keep these temporary change cases out of water court, saving applicants time and money. An additional piece of legislation, House Bill 13-1248 (codified at C.R.S. § 37-60- 115(8)), which was also passed in 2013 and extended in 2017, allows the Colorado Water Conservation Board to authorize up to fifteen rotational lease-fallowing pilot projects. While this bill has currently only produced a single project—the Catlin Pilot Project—that project has been successfully delivering benefits to participating farmers and municipalities alike for the past three years.

 

CATLIN PILOT PROJECT

Approved in 2015, the Catlin Pilot Project is a ten-year ATM that makes senior water rights available for municipal use by rotationally fallowing a portion of irrigated land in the Lower Arkansas River Basin. Six farms signed on to the pilot project to provide water to the towns of Fountain, Security, and Fowler. The project, now three years in, has consistently provided great benefit to the farmers and the municipalities. In 2016 alone, the Catlin Pilot Project delivered more than 400 acre-feet of water to the municipal participants, and farmers received an average of $1004 per acre for each of the 237.9 acres fallowed.

However, since this was the first pilot project undertaken, reaching an agreement between the parties—and soothing the fears of other water rights holders in the Catlin area—took a great deal of work. The CWCB also had a number of terms and conditions about how to go about drying-up the land. For example, farmers are contractually obligated to prevent the spread of noxious weeds, blowing soils, and erosion—all of which are typical outcomes and concerns regarding fallowed land.

By all accounts, the Catlin Pilot Project has been a rousing success story for ATM use in Colorado. In all three years of operation, the participating farmers achieved temporary dry-up while controlling noxious weeds and preventing blowing soils and erosion. The revenue produced by leasing a portion of their water allowed farmers to make significant upgrades to their farms, such as laser leveling their fields, installing drip systems, and improving the soil quality on the fallowed lands. The municipalities have consistently received nearly their entire portion of consumptive use water from the pilot project.

The accomplishments of the Catlin Pilot Project generally demonstrate that rotational lease fallowing is a viable means for farmers to temporarily provide water to municipalities while keeping agricultural communities going. And the continued experience gained during the Catlin Pilot Project will help identify ways to streamline operations and administration for future rotational fallowing-leasing projects. For example, the lease-fallowing tool developed for the Catlin Pilot Project could be adapted for other leases throughout Colorado.

So why is there only one of these pilot projects? It’s not for a lack of interest of the farmers—the Lower Arkansas Valley Water Conservancy District’s executive director Jay Winner said he has 5000 leases for water available from farmers who want to temporarily lease their water rights to cities. But almost no cities have expressed interest in entering into such an agreement. One reason for this lack of interest could be due to the fact that for the first time since 2012, Colorado is not facing drought conditions. Another likely answer is that municipalities simply do not want temporary water supplies. Cities need to be certain that they have enough control over the water to ensure long-term reliability in supply.

 

HOLD-UPS

The water community tends to be cautious about innovations in water law, and ATMs are relative newcomers to Colorado water policy.  Agricultural water rights holders harbor fears of ATMs reducing the amount of water they are entitled to, despite provisions in the statutes that specifically protect against such an occurrence. There are also concerns that ATMs may be attracting investment firms to purchase agricultural water rights as speculative investments and make a profit by leasing the water, which could lead to some agricultural land no longer being irrigated. For example, Boulder-based real estate investment and management company Conscience Bay has purchased several ranches in Colorado, and the company’s president has expressed interest in exploring ATMs to provide water for municipal, fishery, environmental or other uses. While traders have bought and sold water rights for decades, the practice has increased in recent years, due in part to investors seeing Western water shortages as a change to make a substantial profit.

An additional issue concerning ATMs is the fact that these projects require complex agreements that need a great deal of time and money to achieve, which can make cities hesitant to pursue them for a temporary water right. Given the fact that it can take years to solidify these agreements, a ten-year lease may be considered too costly when cities could easily purchase agricultural water rights instead. And while pilot projects like the Catlin Pilot Project may be useful to illuminate how an ATM could be implemented, the variances in hydrology across the state and the specific needs of any given municipality means that such projects cannot be thought of as a one-size-fits-all solution to be replicated in all areas.

Municipal water utilities prefer permanent water supplies over the temporary water provided by an ATM. Planning and development of new communities takes a great deal of time, effort, and money, and cities need to be sure that the water they procure for these future residents will be available when needed. It is easier and cheaper for cities to buy farmers’ water rights outright than invest in water that may not be available at the end of the lease period, especially if the farmer’s needs change and he or she decides not to renew the lease. Even a thirty-year lease for water may be too tenuous to build a reliable water supply for planning and building a community of full-time residents. If a city expands by building a new community, it needs to be certain that water will be available at all times—forever—not just for the next thirty years. This uncertainty has deterred cities from participating in ATMs and has furthered the practice of buy-and-dry in Colorado. However, in August 2016, a first of its kind perpetual ATM was finalized between Larimer County and the City of Broomfield—and it may be the answer to quelling concerns about long-term municipal water supply reliability.

MALCHOW FARM

It all started when the Malchow Farm outside of Berthoud, Colorado went into foreclosure. The farmer, who had leased the land for thirty years, could not afford the $8.4 million price tag, $6.5 million of which was made up of the 240 units of Colorado-Big Thompson Project water. Neither could Larimer County, who wanted to keep the farm in production. So, in 2016, Larimer County sought and found a partner to help shoulder some of the costs.

Working through the Larimer County Open Lands Program (“LCOLP”), Larimer County set out to prove that implementing a perpetual ATM water supply for a municipality was a workable solution to permanently drying-up the farm. Since LCOLP primarily deals in conservation, they were comfortable with the idea of a perpetual arrangement. After meeting with several municipal providers, the County and City of Broomfield agreed to enter into an InterGovernmental Agreement that included an innovative permanent water leasing agreement which keeps water on the farm while helping fill municipal water needs.

In the deal, Broomfield paid $3.77 million for: (a) an interruptible water supply agreement on 80 units of Colorado-Big Thompson (“C-BT”) water; and (b) full ownership of 115 units of Colorado-Big Thompson water with the ability for Larimer County to lease-back. The deal offset nearly half the purchase price for Larimer County, and saved Broomfield money by leasing the water, which was less expensive than purchasing it. This agreement allowed Larimer County to buy the Malchow Farm, conserve 211 acres of farmland along with its value as a community buffer and educational tool, and keep 125 units of C-BT water on the farm. And because the ATM uses C-BT water, which is administered by Northern Water Conservancy District (“Northern”) and its users follow Northern’s rules, the water transfer is not required to be adjudicated in water court.

Finalized in August 2016, Northern’s set of rules around sharing beneficial uses of C-BT water serves to minimizes potential injury to other users and reduces the cost of establishing water sharing agreements. Under the interruptible water supply agreement, Broomfield can get water from the Malchow farm three out of ten years and must pay $18,000 those years. While on the surface, this may look like a typical IWSA, this one is special because rather than only being allowed for a total of three ten-year periods, this IWSA has no such limit. Broomfield is assured that they will have the right to call for water in three out of ten years, forever.

The fact that this ATM is operational perpetually is what makes it so unique. While Broomfield does not own the water rights, they will always be able to call on them, which provides the necessary certainty missing in other types of ATMs. This ATM adds eighty acre-feet of ATM water toward the 2015 Colorado Water Plan’s goal of 50,000 acre-feet by 2050. The hope is that this groundbreaking perpetual ATM will provide landowners, conservation entities, municipalities, and water districts in Colorado with an additional tool to help negotiate future water sharing agreements as an alternative to buy-and-dry.

 

CONCLUSION

The wary water community in Colorado has been slow to embrace ATMs as tools to achieve a hydrological balance that allows cities and farms grow side by side by sharing water. The result has been a proliferation of buy-and-dry deals that leave agricultural communities in ruins. Given the choice, most agricultural water rights holders would prefer to lease their water over selling it outright. But ATMs will never prevail over buy and dry until they can provide easy (and reliable) access to water supplies for municipalities. Hopefully, the new permanent model of ATM developed by Larimer County and Broomfield can serve as a template that other communities can implement to provide municipal users with the certainty they require while maintaining agricultural lands.

Alexandra Tressler

Image: Farm, Loveland, Colorado. Flickr user William Andrus, Creative Commons.

 

SOURCES:

Mollie Schreck, Larimer County-Broomfield Pilot Project, Your Colo. Water Blog (Nov. 20, 2007), https://blog.yourwatercolorado.org/2017/11/20/larimer-county-broomfield-pilot-project/.

Lower Arkansas Valley Water Conservancy District & Lower Ark Valley Super Ditch Co., Annual H.B. 13-1248 Catlin Canal Co Rotational Land Fallowing-Municipal Leasing Pilot Project (2016), http://cwcbweblink.state.co.us/WebLink/0/doc/201619/Electronic.aspx.

Envtl. Defense Fund, Alternative Water Transfers in Colorado (2016), https://www.edf.org/sites/default/files/alternative-water-transfers-colorado.pdf.

Brian Devine, Moving Waters: The Legacy of Buy-and-Dry and the Challenge of Lease-Fallowing in Colorado’s Arkansas River Basin (2015) (Envtl. Studies Graduate Theses & Dissertations), https://scholar.colorado.edu/envs_gradetds/27/.

Marianne Goodland, PARCHED: Farms could help solve Colorado’s water shortage. So why aren’t they?, Colo. Independent (July 12, 2017), http://www.coloradoindependent.com/166269/agricultural-water-transfer.

Larimer County, Broomfield Finalize Innovative Water Agreement, Larimer Cnty (Aug. 28, 2017), https://www.larimer.org/spotlights/2017/08/28/larimer-county-broomfield-finalize-innovative-water-agreement.

Allen Best, Flex Time For Colorado Water, Headwaters (Fall 2017), https://www.yourwatercolorado.org/cfwe-education/headwaters-magazine/fall-2017-alternative-transfers/951-flex-time-for-colorado-water.

Scott Campbell, The Super Ditch: Can Water Become a Cash Crop in the West?, Land Lines (Oct. 2015), http://www.lincolninst.edu/publications/articles/super-ditch.

Joshua Zaffos, Can leasing irrigation water keep Colorado farms alive? Farmers try to stop “buy and dry” by pooling water rights to supply growing cities, High Country News (June 8, 2015), http://www.hcn.org/issues/47.10/can-leasing-irrigation-water-to-keep-colorado-farms-alive.

Connecting The Drops: Alternative Transfer Methods – A Solution to Colorado’s Water crisis?, KGNU (Nov. 20, 2017), http://news.kgnu.org/2017/11/connecting-the-drops-alternative-transfer-methods-a-solution-to-colorados-water-crisis/.

Colin Mayberry, Adaptive Water Management: Alternatives to Close the Supply-Demand Gap in the Northern Colorado Water Conservancy District (2015) (Undergraduate Honors Theses), https://scholar.colorado.edu/honr_theses/861/.

Lower Arkansas Valley Water Conservancy District & Lower Ark Valley Super Ditch Co., Annual H.B. 13-1248 Catlin Canal Co Rotational Land Fallowing-Municipal Leasing Pilot Project (2017), http://www.lavwcd.com/catlin-pilot-project.html.

Colorado Cattlemen’s Association, 2016 Ag Water Right Holder Survey Results Summary (2016), https://www.coloradocattle.org/CMDocs/ColoradoCattlemen/2016%20Ag%20Water%20Survey%20Results%20Report.pdf.

Marianne Goodland, Lawmakers lament they “don’t have more influence” moving state water plan forward, Colo. Independent (May 26, 2017), http://www.coloradoindependent.com/165649/progress-state-water-plan-legislature.

Dennis Webb, Eyes on ag lands, Daily Sentinel (March 3, 2018), https://www.gjsentinel.com/news/western_colorado/eyes-on-ag-lands/article_519205ac-1f7a-11e8-8cd6-10604b9f7e7c.html.

James E. McWhinney, Water: The Ultimate Commodity, Investopedia (Feb. 26, 2018), https://www.investopedia.com/articles/06/water.asp.


In a state where every drop counts, the pressure on Colorado to regulate and maintain a stable water-supply system is intense. Water administrators must constantly be vigilant to ensure there is enough water to meet the needs of the state and to fulfill downstream obligations. As the challenges presented by climate change and increased demand become more visceral, the State will need to start cracking down on something that—on first look—might seem quite innocuous: illegal ponds.  However, ponds pose more than a few challenges to make enforcement worthwhile, and the State’s Division of Water Resources (“DWR”) is looking into how they could regulate them efficiently and fairly.

 

Looking to the future, Colorado’s State Water Plan anticipates a gap between the supply and demand for water in municipalities that get their water from the Arkansas Basin. Staff in the State’s Division of Water Resources has begun mulling whether more strict enforcement of illegal ponds would be helpful in filling this gap. While there are some problems associated with the logistics of the stricter enforcement of ponds, the potential for saving necessary water is there.

 

According to Assistant Division Engineer for Division 2 Bill Tyner, there are well over 15,000 pond-like structures that do not have decreed water rights or do not fall into another category of legal water storage.  Of these 15,000, though, some structures are natural occurring areas, like wetlands, that would not be subject to the water administrative process.  Tyner said, “the inventory of unknown ponds consists of approximately 10,000 surface acres” depending on hydrologic conditions and the level of current storage, and “an average rate of evaporation would suggest that the loss to evaporation could be as high as 30,000 acre-feet per year.”  The typical pond holds between 0.5 and 1 acre-feet of water.

 

For context, the State’s 2015 Water Plan predicts the Arkansas River Basin will face a water-demand gap in coming years.  The Plan suggests that future needs in the basin, otherwise known as Colorado’s Water Division 2, are expected to increase by 110,000 to 170,000 acre-feet in 2050, while currently planned projects in the Basin leave a supply gap of between 45,000 and 94,000 acre-feet for the same period.

 

Sustained gaps in water supply pose a risk to Division 2 and to the State as a whole.  Colorado’s water sources must supply the State’s municipalities, agriculture, and industry but still comply with any interstate compacts, such as the Arkansas River Compact executed between Kansas and Colorado. Failure to comply with the Compact has previously resulted in Colorado paying millions of dollars of damages to Kansas.

 

One way to help fill the gap in Division 2 might be for regulators in the State Engineer’s Office to crack down on the large number of illegal ponds peppering the Basin. But closing the gap in Division 2 is not something that DWR is tasked with.  While illegal pond enforcement could potentially help close the gap, DWR’s priority is fulfilling their duty to administer water rights regardless of any effect on a predicted gap.  As Tyner explained, “[DWR] has been given no direction to find water to fill the gap, certainly not through enforcement actions, and discussing enforcement in the context of the water supply gap could lead to the wrong conclusion. . . . [W]e actively seek opportunities to discourage and prevent new un-exempted and un-augmented ponds from being developed.”

 

Tyner also cautioned against linking the potential savings from pond enforcement to the size of the gap too closely: any comparison between the two, he said, is really just to highlight the scope of the problem. “Our past comparisons relating to the amount of water evaporating from the ponds or stored out-of-priority may indeed show an amount that could be as much as the Arkansas basin gap, however that contrast of data was intended to demonstrate the magnitude of the losses from ponds, not to suggest a solution to the demand gap,” he added.

 

This article will address first, the current enforcement process; next, the complications involved with the current process; and finally, a new approach to pond enforcement that could take effect in the near future.

 

Current Enforcement

 

So far, Division 2 has had some success working with the owners of ponds who, usually without knowledge that what they are doing is illegal, are diverting water out of priority.  Typically, when the Division locates a pond that is diverting water out of priority, an enforcement order informs the pond owners that a change must be made. This could mean draining the illegal pond or halting diversions from a nearby water source.

 

During drought years, the Division typically receives complaints from senior water rights holders who know they are losing water to ponds belonging to residents who don’t have water rights or who are junior in time.  The Division then notifies the owners of the ponds, explaining they either need to apply for an augmentation plan or  stop diverting water to their pond.  Tyner said that once notified, pond owners usually comply with any enforcement orders.  If successful enforcement like this were to become more frequent, the closure of more illegal ponds could aid Division 2 in obtaining more water to solve the projected gap and to help comply with the Arkansas River Compact.

 

When there is a gap in water supply, one place to look for more water are wells that are pumping out of priority. Before the 1969 Act, which codified Colorado’s system of prior appropriation, there were no requirements for wells to be adjudicated in the priority system. Now, the state recognizes two classes of wells: those that are exempt from the water rights administration and those that are non-exempt and are governed by the priority system. Regulation of non-exempt wells ensures senior water rights holders are getting the water they are entitled to. But according to Tyner, unintended consequences arise from state exemption statutes. Tyner said there are tens of thousands of exempt wells that statute treats as not having an impact on the priority system, even though they may. In more recent water court cases, the state has cracked down on exempt wells in recognition of their effect on the priority system, like in Well Augmentation Subdistrict of Central. Colorado Water Conservancy District v. City of Aurora. Tyner said that there is no strong emphasis on closing ponds like there is on closing wells.

 

Under Colorado law, storing water in a pond requires a storage right unless the pond is included in a plan for augmentation or substitute water supply plan (But even then, Tyner said owners are encouraged to obtain a storage right). One exception to the storage right requirement is when the Division Engineer determines that no senior call exists below the pond; however, this has only happened a few times in the last thirty years. Another exception is when, as determined by the Water Commissioner and the Division Engineer, the curtailment of the storage would not serve to fulfill a downstream call. So, unless a pond has a storage right (or is part of an augmentation plan) or there is an exception, the Division Engineer can curtail use of the pond.  The problem, however, is the large number of small ponds dotting the Basin, making enforcement complicated.

 

One uncertainty, according to Bill Tyner, is how much water is actually lost to these rogue ponds. In some ways, this uncertainty provides an advantage for Colorado because Kansas, for example, would have a tough time arguing that ponds are an issue under the Arkansas River Compact simply because ponds do not have as strong of ties to the system as say wells—although wells used to be less strictly enforced as well.  But it is clear to Tyner that ponds are diminishing the supply in some way.

 

Enforcement Complications

 

Why haven’t enforcement orders been issued to every illegal pond in hopes of saving Division 2 as much water as possible?  The idea is not as simple as it may sound.

 

First, locating illegal ponds is difficult.  While Division 2 contains some populous cities like Pueblo and Colorado Springs, it also comprises a lot of rural area.  Tyner said water commissioners can use aerial photos to identify ponds, but typically enforcement orders arise as responses to specific injury concerns from senior water right holders.  When a senior water right holder makes a call on the river, junior water right holders must stop diverting water from the system.  When pond owners are unaware that they are continuing to divert water out of priority, this still injures those senior right holders.  Also, there are various ponds that have legitimate reasons to exist and are in compliance with the Division of Water Resources.  Some examples of these types of ponds are livestock water storage ponds and exposed gravel pit ponds, both of which may be permitted by the State Engineer. This makes it difficult to determine which ponds are noncompliant unless there has been a specific complaint.

 

Second, increased enforcement of ponds would require more Division staff and resources focused on this issue.  Tyner said the Division has not made pond enforcement a high enough priority yet, but he previously saw the Division “staff up” when Kansas sued the state under the Arkansas River Compact.  The Compact was made in 1948 to settle disputes over the waters of the Arkansas River, which runs through both Kansas and Colorado.  In the past, when Kansas sued Colorado for failing to provide enough water under the Compact, the Division of Water Resources was forced to administer more personnel to enforce post-Compact wells under the threat of paying damages.  If Kansas sues Colorado again, a similar “staff up” for pond enforcement could be required.

 

Additional factors complicating pond enforcement include the time it takes to ensure property owners remove illegal ponds, as well as the hardship enforcement might have on the pond owners themselves.  Tyner said when the water commissioner first contacts the owners of illegal ponds, the owners are often surprised and unsure what to do.  Considering the complicated nature of Colorado water law, the commissioner gives owners a few months to comply with enforcement orders.

 

Remedies vary depending on whether the pond is “on-channel” or “off-channel.”  An on-channel pond is one that a natural stream runs through. If a pond owner is storing water out-of-priority or they do not have a storage right, the owner may be asked to release any water stored in their on-channel pond.  This may require the dam for the pond to be breached.  An off-channel pond diverts water from the stream.  The remedy for illegal off-channel ponds is the cessation of all diversions to the pond.  Pond owners can request an extension of time to comply with the enforcement order, which the Division typically grants.  Tyner said in very few situations do people refuse to comply with the order; and in even fewer instances, a fine is imposed. On the rare occasions owners simply refuse to comply with the Division’s requests, the Attorney General’s Office must file a complaint on behalf of the Division Engineers with the court.  Most owners who initially refuse to comply end up signing a Consent Decree that identifies how they will comply with the order and by what date. Tyner said if the Division gets to this point, the owner must pay penalties.

 

Ultimately, given the time and resources needed, it is unrealistic to expect that a swift wave of enforcement against illegal ponds will have an immediate impact on the water system. At the same time, any solution should be considered given that Colorado will face continue to face challenges in complying with the Arkansas River Compact.  In 2005, Colorado paid Kansas more than $34 million in damages for Compact violations caused by years of well pumping that depleted river flows at the state line—a situation that no one would like to see repeated.

 

“Although enforcement is not a tool intended to close the gap, we recognize that additional out-of-priority uses, particularly in an over appropriated basin, only make it more difficult to protect existing senior water rights and address legitimate future needs and so, through education and interdiction we actively seek opportunities to discourage and prevent new un-exempted and un-augmented ponds from being developed,” Tyner said.

 

Proposed New Approach

 

In preparation for the September Orders Committee Meeting, Tyner drafted a memo to the Division of Water Resources Orders Committee in April 2018. In the memo, Tyner proposed a new approach to pond enforcement orders. The approach embraces a strict timeline for the emptying of ponds, as well as strict conditions for the refilling of ponds with approved augmentation plans.  The harsher approach comes with time saving benefits for the water commissioner, and it seeks to rid of interim compliance problems when ponds are lowered properly but later refilled by rain.

 

Tyner’s memo explained that “it takes and inordinate amount of time to make monthly site visits to confirm compliance or non-compliance with the orders.” The memo outlined an improved process for pond enforcement. Tyner suggested that the Division first order an owner to remove unnecessary obstruction by breaching the dam or, if the pond has adequate operable outlet works, by releasing stored water.  Tyner’s memo said orders should include “a show cause statement as to why the water in the pond has been legally stored and, if water can be shown to be legally stored, show how inflows will be passed to prevent injury to downstream water rights when in-priority storage cannot be conducted.”

 

The ideas Tyner suggested also include orders that refer pond owners to dam safety requirements and orders that identify a timeframe for owners to comply with in emptying their ponds.  For dam safety, breaching or draining of off-channel ponds should contain a reference to dam safety provisions to avoid “a train wreck” with water being discharged to the stream. And for timeframes, Tyner suggested that for orders issued after September 1, compliance be met by the following April 1; and for orders issued after February 1 and before September 1, he recommended that the owner be required to empty the pond within 45-60 days from receipt of order.

 

Then, an order should apprise the owner of options for obtaining a substitute water supply plan or an augmentation plan for their pond to be refilled.  According to Tyner, this should not be given as an option for compliance with the order, but “if someone was able to get approval for a plan over the winter with a provision to handle the initial fill, [the Division] could treat that as compliance with the order.” Further, any substitute water supply plan or augmentation plan approved for refill and fill maintenance on a pond should have strict conditions about operable outlet works.

 

For off-channel ponds, an order should be issued in a similar manner; however, the diversion to the pond should be immediately curtailed. The same considerations in any substitute water supply plan approval should be considered similarly to on-channel ponds, but with added conditions related to proper control and measuring devices on the diverted supply to the pond to allow control by the Water Commissioner.

 

This approach has the potential to simplify the process of pond enforcement, which could aid Division 2 in gaining more water.  But even if this approach helps save more water, according to Tyner, “making water available through pond enforcement may not result in water being available at a proper location to solve the problem.”  Also, “some landowners with ponds will choose to try to keep their ponds by working to develop augmentation plans to replace out-of-priority depletions”, so figuring out the overall impact of a new enforcement plan would “be a dynamic process” for DWR, Tyner said.

 

While dealing with illegal ponds is not easy, there is potential for Colorado to save a lot of water through stricter enforcement.  Much like the way the state revamped its system to regulate wells to comply with the Arkansas River Compact, a stricter regulation of illegal ponds could prove very beneficial to the state.

 

Kate Mailliard

Image: An aerial shot of the Arkansas River in Colorado. Flickr user Ken Lund, Creative Commons.

Sources:

 

Arkansas River Compact of 1949, Colo. Rev. Stat. Ann. § 37-69-101.

 

Bill Vogrin, A pond farewell: State cracks down on water rights violations, Gazette (Sept. 4, 2009) http://gazette.com/a-pond-farewell-state-cracks-down-on-water-rights-violations/article/61473.

 

Citizen’s Guide to Colorado’s Interstate Compacts, Colorado Foundation for Water Education Colorado 16-17 (2nd ed. 2016), https://agriculture.ks.gov/docs/default-source/iwi—kansas-colorado-arkansas-river-compact/arkcompactfactsheetaug2009.pdf?sfvrsn=2.

 

Colorado Water Plan 6-21 (2015), http://cwcbweblink.state.co.us/WebLink/ElectronicFile.aspx?docid=199504&searchid=80d50cb3-95bf-405c-bfa5-587c633c7136&&dbid=0.

 

Guide to Colorado Well Permits, Water Rights, and Water Administration, State of Colorado Department of Natural Resources Division of Water Resources 2 (Sept. 2012),  https://www.colorado.gov/pacific/sites/default/files/wellpermitguide1.pdf

 

Telephone Interview with Bill Tyner, Assistant Division Engineer for Division 2, Colorado Division of Water Resources (Feb. 22, 2018).

 

Email correspondence with Bill Tyner, Assistant Division Engineer for Division 2, Colorado Division of Water Resources (Apr. 22, 2018).

 

Kansas Department of Agriculture, Fact Sheet (Aug. 2009), https://agriculture.ks.gov/docs/default-source/iwi—kansas-colorado-arkansas-river-compact/arkcompactfactsheetaug2009.pdf?sfvrsn=2.

 


Thousands of abandoned and orphaned mines dot the American West. They pose a danger to both public and environmental health, and responsible parties are difficult to find, differentiate, or hold accountable. Why do inactive mines continue to pose safety hazards and pollute our waterways? The laws in place simply don’t have teeth. The Gold King Mine wastewater spill in southwestern Colorado in 2015 was a good reminder of the scope of the problem of abandoned and orphaned mines and how our current regulatory framework falls short.

 

There are three laws that generally govern mining law in the United States: the 1872 Mining Law, the Clean Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). These laws lack concrete measures to prevent mine spills from occurring as well as reliable methods to ensure that all mines receive the necessary attention in the case of a spill (or better yet, to prevent one). In addition, these laws can create liabilities and disincentives on parties who might otherwise be willing to come in and remediate the mine on their own. However, some states are turning towards a non-traditional form of legislation: Good Samaritan laws, in which citizens, companies, and organizations would be not liable in the case they decide to take on the task of cleaning up acid mine drainage.

 

The abandoned mine problem in the United States is striking. Specifically, hard rock mines (including metals like gold, silver, iron, copper, and zinc) are predominant in the West as a result of the discovery of gold and silver during the era of western expansion. Up until the 1970s, the federal government engaged in little oversight on mining across much of the West. During the mining era, there were few expectations about environmental safeguards, and as a result, historic mining operations often went largely unregulated. Before the 1970s, it was common for mining companies to abandon mine sites after mineral extraction was completed or no longer profitable. The land was often left exposed, with waste materials in piles or dumped into mine cavities and pits. At the time, mining companies had no requirement to restore mine lands to their original condition. Today, it is almost impossible to hold these mine owners financially responsible because records of original ownership have been lost and accountable individuals have long passed away. There are over 500,000 abandoned hardrock mine sites across the nation, and the cost for cleaning up these inactive mines is estimated to be between $33 and 72 billion dollars. Today, these abandoned mines are capable of polluting adjacent streams, lakes, and groundwater with high volumes of toxic waste. In doing so, contamination from spills has the potential to—and often does—harm marine ecosystems, poison local drinking water, and pose serious health risks to local communities.

 

What Laws Are in Place?

 

The Mining Law of 1872, or the General Mining Law, governs the transfer of rights to mine gold, silver, copper, uranium and other hardrock minerals from federal lands. Under the law, citizens may enter and explore the public domain, and if they find valuable mineral deposits, they may obtain title to the land through the Department of the Interior. The law has jurisdictional coverage over 270 million acres of publicly owned land, which is almost one-fourth of all land in the United States. In essence, mining companies are able to search for minerals without any authorization from any government agency. The law contains little to no environmental protections for using use of the land and it does not include any royalty or bonding provisions (to help fund cleanup in case of an accident). As a result, many have criticized the law for giving away public land to private companies practically for free, leaving the public to bear the burden for cleaning up the spills. Since there is no requirement to pay royalties or report extraction volume, the government does not keep track of the volume of hardrock minerals being extracted from federal public lands each year. Consequently, this aspect of mines is largely unchecked and has disparate effects.

 

But the issue of abandoned mines has not entirely been overlooked. In September 2017, Senator Tom Udall (Arizona) introduced legislation to reform the General Mining Law and address many of the above-mention criticisms.  If passed, the legislation would help fund clean-up activities through fees and royalties. In March 2018, the House Committee on Natural Resources held a hearing on the issue of abandoned mines.

 

The Clean Water Act (CWA) is aimed at restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters. The Act splits the responsibility to state agencies and some responsibility to the EPA to carry out the regulatory purposes. The Act requires would-be polluters to obtain a permit for any kind of discharge of a pollutant from a point source (such as mine waste) into the navigable waters of the United States. While the structure of the Act enforces a basic foundation for protecting water resources, one consequence of the permitting system is that parties who own or attempt to clean up mines will likely become subject to its extensive permitting requirements and face liability. This being said, when parties do attempt to clean up mines, their actions could still constitute a violation of the CWA. Under the Act, a party seeking to engage in cleanup activity would need a permit regardless of whether their actions aggravate or improve the water quality.

 

CERCLA allows for the cleanup of sites that are already contaminated with hazardous substances and pollutants. It is also referred to as the “Superfund,” due to the large fund that it created for cleanup of contaminated sites. CERCLA is intended to spread the cost of cleanup among responsible parties, and allows the government to undertake cleanup of contaminated property or compel private parties to undertake the cleanup themselves. Like the CWA, CERCLA creates potential liability for parties that might attempt to clean up abandoned mines, which usually takes form of lawsuits. Under 107(a)(4)(B), private parties can recover from a potential responsible party (PRP) for the cleanup costs they “directly incur.” Under this broad liability scheme, people who own property containing hazardous substances can be held liable for enormous cleanup costs even though they were not involved in any hazardous waste disposal activities. Even with some liability defense for certain types of innocent landowners and bonafide prospective purchaser, CERCLA has in effect discouraged the purchase and reuse of properties that may be contaminated. As a result, the overwhelming costs of cleanups (and potential liability) have been the primary restraining factors for people otherwise interested in reusing and restoring contaminated properties.

 

Good Samaritan Legislation

 

There has been no shortage of offered fixes to the problem of abandoned and orphaned mines, but one solution that has seemed to be getting more traction recently is the idea of Good Samaritan legislation. While potential liability under the CWA and CERCLA has discouraged parties from cleaning up abandoned mines or reusing and restoring contaminated properties, Good Samaritan legislation may provide new hope for parties who want to attempt to clean up mines but do not have the resources to take on the liability that might accompany cleanup efforts. These parties may include citizens, government agencies, nongovernmental organizations, and mining companies.

 

Pennsylvania implemented the Environmental Good Samaritan Act in 1999 and has completed fifty projects since. Those protected by this legislation include individuals, corporations, nonprofit organizations, and government entities. The Act protects them if they meet several requirements, including they that did not cause/create the abandoned mineral extraction land or water pollution, and that they provide equipment and/or materials for the project. The Pennsylvania Department of Environmental Protection (DEP) administers and reviews project proposals to determine project eligibility.  While the Act has been used for mine reclamation in the past, DEP has also applied it to other environmental remediation projects, achieving success so far. In 2017, the Act has been applied to two oil and gas well projects, which are estimated to have saved DEP $60,000 to $85,000, in addition to administrative cost savings related to contract development and management. Three more projects are currently under review.

 

Recently, members of Congress have made efforts to enact something similar at the federal level. In 2016, three members of the Colorado delegation to Congress proposed the Good Samaritan Cleanup of Orphan Mines Act of 2016 with the help of environmental groups Trout Unlimited and Earthworks. The bill, ultimately, was not successful.

 

The practical reality of Good Samaritan legislation is that most parties who are interested in cleaning up the spills will not have the funds to effectuate a successful cleanup. While Good Samaritan laws appear to be a reasonable way to encourage cleanups, they are not enough to solve the multifaceted abandoned mine issue that has a variety of stakeholders- including the mining companies who are often let off the hook. This is why most environmental advocates tend to reject Good Samaritan proposals, as they distract from the bigger picture that the mining companies are causing the spills and are not taking responsibility to clean them up. While the EPA has issued guidance on Good Samaritan laws, few parties are willing to proceed with cleanup projects because the EPA has failed to engage in regulatory rulemaking and enforce law on the subject.

 

This being said, Good Samaritan legislation alone will not solve the abandoned and orphaned mine issue. Conservation groups have proposed increased liability for mining companies. At the state level, conservation groups like San Juan Citizens Alliance and Conservation Colorado have supported the

 

Thus, what seems to be the closest thing to an answer to the abandoned and orphaned mine problem is some sort of combination of many proposed solutions: Good Samaritan laws, imposition of royalties, creation of a hardrock reclamation fund, etc. At this point, the main question is where resources should be allocated and at what cost, especially amidst federal laws and agencies that often disagree on how and to what extent…” to protect the environment.

 

 

Haley McCullough

 

Image: The Animas River between Silverton and Durango in Colorado, USA hours after the 2015 Gold King Mine wastewater spill. Wikimedia Commons user Riverhugger, Creative Commons.

 

Sources

Jeffrey M. Gaba, Private Causes of Action under CERCLA: Navigating the Intersection of Sections 107(a) and 113(f), 5 Mich. J. Envtl. & Admin. L. 117 (2015).

Kelly Roberts, A Legacy That No One Can Afford to Inherit: The Gold King Disaster and the Threat of Abandoned Hardrock Legacy Mines, 36 J. Nat’l Ass’n Admin. L. Judiciary 361 (2016).

Jeffrey A. Kodish, Restoring Inactive and Abandoned Mine Sites: A Guide to Managing Environmental Liabilities, 16 J. Envtl. L. & Litig. 381, 381(2001).

 

Bart Lounsbury, Out of the Holes We’ve Made: Hardrock Mining, Good Samaritans, and the Need for Comprehensive Action, 32 Harv. Envtl. L. Rev. 149 (2008).

 

United States v. Copar Pumice Co., 714 F.3d 1197 (10th Cir. 2013).

 

American Mining Congress v. United States Envtl. Protection Agency, 965 F.2d 759 (9th Cir. 1992).

 

Committee to Save Mokelumne River v. East Bay Municipal Utility Dist., 13 F.3d 305 (9th Cir. 1993).

 

Hardrock Mining, The National Wildlife Federation, https://www.nwf.org/Our-Work/Waters/Hardrock-Mining (last visited Apr. 5, 2018).

U.S. Gov’t Accountability Office, Mineral Resources: Mineral Volume, Value, and Revenue (2012), https://www.gao.gov/assets/660/650122.pdf (last visited Apr. 5, 2018).

Matthew Brown, EPA drops rule requiring mining companies to have money to clean up pollution, Chi. Tribune (Dec. 1, 2017), http://www.chicagotribune.com/news
/nationworld/ct-epa-mining-pollution-20171201-story.html (last visited Apr. 5, 2018).

Brian Handwerk, Why Tens of Thousands of Toxic Mines Litter the U.S. West, Smithsonian.com, (Aug. 13, 2015), https://www.smithsonianmag.com/science-nature/why-tens-thousands-toxic-mines-litter-us-west-180956265/ (last visited Apr. 5, 2018).

Van Zyl, D., Sassoon, et. al., Mining for the Future: Main Report (2000).

 

Claudia Copeland, Cleanup at Inactive and Abandoned Mines: Issues in “Good Samaritan” Legislation in the 114th Congress, (Nov. 25, 2015) https://fas.org/sgp/crs/misc/R44285.pdf (last visited Apr. 6, 2018).

 

Dep launches program to cap abandoned wells, The Bradford Era (Jan. 31, 2018), http://www.bradfordera.com/news/dep-launches-program-to-cap-abandoned-wells/article_8310642a-061b-11e8-ad41-cb2aff000d41.html (last visited Apr. 15, 2018).


Introduction

Fifty years ago, the tide was turning in the war in Vietnam, the civil rights movement was in full swing, and the cold war was raging—but American industry was booming. The United States Congress and the Lyndon B. Johnson administration, however, recognized the danger that industry and development posed, particularly to America’s rivers. Responding to that threat, President Johnson signed the Wild & Scenic Rivers Act (“the Act”) into law on October 2, 1968. Now, fifty years later, it is possible see where the Act has been successful, where it has met challenges, and where it has developed along the way.

The end of the 1960’s marked a point of awakening for American conservationism. The scale of industry was coming to a point where industrial effects on the environment were impossible to ignore. America’s rivers were particularly suffering from decades of damming, development, and diversion. Congress turned to address these issues at the end of the 1960s, beginning America’s modern history of environmental law and setting up the 1970s as the environmental decade. The Wild & Scenic Rivers Act was one of the first pieces of legislation passed during this surge of environmental protectionism. To this day, it remains one of the strongest protections available for American rivers as it preserves the essential character of rivers in their natural, free-flowing state.

 

How it Works

The Act gives Congress—and in some circumstances, the Secretary of the Interior—the power to designate rivers for protection that “possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar values.” This range of possible reasons for designation gives Congress a fairly broad grant of authority. Congress may also designate smaller sections of a river under the Act, including tributaries, instead of the entire river. The ultimate purpose of the Act is to ensure that protected rivers will be preserved in free-flowing condition for the enjoyment of future generations. The Act also requires that future development in non-protected areas implement policies that ensure designated rivers remain protected.

Congress can classify rivers as “wild,” “scenic,” or “recreational.” The classification does not prescribe how an area is managed; it simply denotes the relative degree to which the area has been preserved. Regardless of the classification, each area is afforded the same protections. “Wild” river areas are those that are representative of “primitive America.” These are defined in the Act as areas with pristine waters, undeveloped shorelines, and trail-only access. A “scenic” area is still relatively undeveloped, but parts are accessible by car. A “recreational” area may have some development and is readily accessible by car.

The typical means of designating rivers under the Act is through Congress. Congress first instructs that the agency with authority over a River—such as the National Park Service, National Forrest Service, or Bureau of Land Management—study a river area and determine if it is suitable for designation. The president or a state can also suggest areas for designation. After receiving the agency’s report, Congress can then choose whether to designate the river or not, regardless of the agency’s findings. In designating the river, Congress must classify the area as wild, scenic, or recreational and determine which outstandingly remarkable values (“ORVs”) are worth preserving.

A “wild and scenic” river is primarily protected through federally coordinated actions set out in the Act. First, the Act directs agencies to take action necessary to preserve the river in its free-flowing condition and enhance its ORVs. The Act also prohibits the Federal Power Commission from licensing the construction of a hydroelectric dam or other project that would affect a designation. Additionally, the Act prohibits any federal agency from loaning, granting, or licensing a water resources project that would have an adverse effect on the designated area’s ORVs.

Once Congress has designated an area as a Wild and Scenic River, a federal or state agency becomes responsible for administering the area. As the Act does not stipulate a specific agency to administer, the agency that normally oversees the area will typically be given responsibility. Regardless of the classification, the primary responsibility of the administrator of the area is to protect and enhance the “outstandingly remarkable” value or values under which Congress made the designation. Private property in the area and existing state-allocated water rights are subject to condemnation to achieve the purposes of the Act. The federal government, however, is limited in how much land can be condemned in any one designated area.

Unfortunately, recourse for holding an administrator accountable is somewhat limited, as the Act does not authorize citizen suits. This means that in order to hold an agency accountable for not properly administering a Wild and Scenic River, a plaintiff must sue that agency under the Administrative Procedure Act. The court will review agency actions under an arbitrary and capricious standard, which provides the agency with broad discretion as to how a designated river is managed, making it unlikely that most challenges would be successful.

 

The Evolution of the Act

Throughout its fifty-year history, Congress substantively amended the Act nearly thirty times, but the most significant changes to the Act occurred about ten years after the Act was originally passed. By 1978, the Wild and Scenic Rivers system was expanding quickly; Congress, reacting to growing pains of the system, amended the act with the intent to assist in the expansion of the system. The National Parks and Recreation Act of 1978 (“NPRA”) brought about some of the most sweeping changes to the Wild and Scenic Rivers Act, amending six separate sections of the original Act.

First, the NPRA amended Section 2 of the Act—the section guiding state-administered components—to allow federal funding for designated areas on federally owned land that are state-administered. This amendment specifically responded to an issue with the Department of the Interior objecting to designations where a significant amount of federal land bordered a designated area. Because the original 1968 Act lacked this provision, the Department of the Interior could object to such designations on the grounds that the federal lands could not be funded and managed properly.

The NPRA also amended Section 6 of the Act—the section regulating acquisitions—by changing the definition of “improved property.” The amendment is significant because the owner of an improved property that is acquired under the Act is limited to using and occupying the property for twenty-five years. The original Act only included dwellings constructed before 1967, and this amendment removed that limitation. Now, all those affected by acquisitions under the Act are entitled to this twenty-five year grace period.

Another significant amendment changed Section 14 of the Act—the section on leasing federal lands—also aimed to help those whose property was acquired under the Act. The amendment gives the administering agency the power to lease acquired lands if the lease is restricted to private uses compatible with the Act. In passing the amendment, Congress specifically contemplated that these leases would be offered first to the person who owned the land before the United States acquired it.

Nearly a decade after the NPRA became law, Congress scrutinized the Act again to address growing pains of the system and amended it another seven times. One of the most notable amendments from this wave of changes is to Section 6 (acquisitions), and continued a pattern of expanding federal power under the Act. The amendment gave the administering agency the power to acquire land that lies partially within and partially outside the boundary of a Wild and Scenic River. If the state owns the land, the amendment allows the federal government to acquire the land by exchanging federally owned land.

 

Notable Designations

When the Act was passed, Congress designated eight rivers as National Wild and Scenic Rivers: the Clearwater and Salmon Rivers in Idaho, Eleven Point River in Missouri, the Feather River in California, the Rogue River in Oregon, the Wolf and St. Croix Rivers in Wisconsin, and the Rio Grande in New Mexico. Today, fifty years after the Act was passed, there are now more than 12,500 miles in forty states and Puerto Rico.  However, given the sheer size of the United States, the amount of area protected under the Act represents a mere 0.33 percent of America’s rivers. In comparison, damming alone has modified at least 17 percent of our rivers.

One of the original eight designations when the Act passed in 1968 protects sixty-eight miles of the Rio Grande in New Mexico. The protected area spans from the Colorado border through the eastern part of Rio Grande del Norte National Monument. The designation is based on a number of outstandingly remarkable values, including cultural and geologic value in addition to the typical scenic and recreational value.

(Image: The Rio Grande River in New Mexico. Flickr user Ryan Wick, Creative Commons.)

 

 

In 1981, Congress protected 286 miles of the Klamath River under the Act on the coast of California. Congress designated the area of the river from the central part of the Oregon border all the way to the Pacific Ocean. The Klamath was specifically protected for its fisheries, which support a number of endangered species.

(Image: The Klamath River meets the Pacific Ocean in California. Flickr user Linda Tanner, Creative Commons.)

 

Congress designated eighty-six miles of the Allegheny River in Pennsylvania in 1992. The protected area begins at Buckaloons Recreation Area and continues downstream to Acorn Island. The designation is largely based on recreational opportunities, specifically canoeing and fishing.

Kinzua Dam

(Image: The Allegheny River in Pennsylvania. Flickr user Soaptree, Creative Commons.)

 

The Act Today

 

In the last ten years, Congress has designated nearly forty new river areas as National Wild and Scenic Rivers. One of the largest years for new designations in the history of the Act was 2009, with thirty-two new areas gaining protection all across the country. Prior to 2009, Congress made new designations under the Act virtually every year. Since then, however, there have been only six new designations, all in 2014. Among the new designations were rivers in Washington, Arizona, and Vermont—and one existing designation was added to White Clay Creek in Delaware. Significantly, Congress also designated fourteen new river areas to study in 2014. Four years later, and Congress has yet to approve any new designations, however bipartisan legislation has recently moved forward to designate East Rosebud Creek in Montana.

Today, several areas of the Act are commonly litigated in federal court. Boundary designations are one of the most litigated areas, and have been throughout the history of the Act. Property owners challenge boundary designations to avoid acquisition or increased limitations affecting use of their property. Cities and counties also challenge designations if they feel prejudiced, as the Act can severely limit construction, irrigation, and discharge into a river. Designations typically face challenges on the grounds that the administering agency did not comply with the Act, usually by not identifying ORVs specifically enough. Boundaries must be consistent with protecting and enhancing a designation’s ORVs. However, objectors also challenge designations on the grounds that a certain area is not fit for designation. For example, in 2017 in Oregon, a group of ranchers challenged a designation on the Rogue River arguing that it had already been developed to such an extent that it was no longer fit for designation.

Another area of the Act that is frequently litigated today is how to actually manage the Wild and Scenic River system. Specifically, agencies frequently face challenges because they did not prepare a comprehensive management plan (“CMP”) for a designated area. The courts have recognized that the Act does not actually mandate agencies to draft a CMP, yet courts have required agencies to do so in certain instances, including through injunctive relief. Another common management challenge is to an agency’s decision regarding balancing competing uses. This usually comes up in the context of preexisting uses of the river area before designation. As these agency decisions are reviewed under an arbitrary and capricious standard, these challenges typically find little success.

In the next fifty years of the Act, we may see Wild and Scenic River designations being consciously used to combat climate change, as preserving America’s most important rivers could help mitigate some of the effects. As the changing climate continues to shrink and degrade critical habitat for aquatic species, America’s Wild and Scenic Rivers can provide essential repositories and corridors for certain species. Furthermore, as both drought and flooding have increased with the onset of climate change, Wild and Scenic Rivers can also help both preserve drinking water for a growing population and also maintain flood security.

 

Conclusion

By 1968 it was clear to Congress and the Johnson administration that America desperately needed to respond to increasing environmental degradation from industry and development. Recognizing the importance of our shared heritage, Congress gave Americans the gift of the Wild and Scenic Rivers Act. In the fifty years since the Act was passed, Congress has seen fit to designate and preserve over 12,000 miles of river for the benefit of future generations of Americans. While the amount of new designations has been steadily declining, the Act still offers some of the staunchest protections for America’s most beloved rivers. In every corner of the country, Americans likely have the Wild and Scenic Rivers Act to thank for the memories of lazy river days that we as Americans cherish as a part of our shared heritage.

 

Jeremy Frankel

 

Image: The Upper Missouri River in Montana. Flickr user U.S. Department of the Interior, Creative Commons.

 

 

Sources:

 

47 Fed. Reg. 39454, 39458.

 

Allegheny River, Wild and Scenic Rivers Council, https://www.rivers.gov/rivers/allegheny.php.

 

Celebrating Fifty Years, Wild and Scenic Rivers Council, https://www.rivers.gov/wsr50/index.php.

 

Federal Agency Roles, Wild and Scenic Rivers Council, https://www.rivers.gov/documents/federal-agency-roles.pdf.

 

Interagency Wild and Scenic Rivers Coordinating Council, Evolution of the Wild and Scenic Rivers Act (2014), https://www.rivers.gov/documents/wsr-act-evolution.pdf.

 

Jessianne Wright, Bipartisan Legislation Moves Forward for Montana Wild and Scenic Designation, Explore Big Sky (Jan. 7, 2018), http://www.explorebigsky.com/bipartisan-legislation-moves-forward-for-montana-wild-and-scenic-designation.

 

Karina Brown, Oregon Cattlemen Fight Wild & Scenic River Designation, Courthouse News Service (Mar. 16, 2017), https://www.courthousenews.com/oregon-cattlemen-fight-wild-scenic-river-designation.

 

Klamath River, Wild and Scenic Rivers Council, https://www.rivers.gov/rivers/klamath-ca.php.

 

Max Greenberg, Get to Know These Amazing Rivers: A Celebration of the Wild & Scenic Rivers Act, The Wilderness Society (October 2, 2014), https://wilderness.org/blog/get-know-these-amazing-rivers-celebration-wild-scenic-rivers-act.

 

Missouri River, Wild and Scenic Rivers Council, https://www.rivers.gov/rivers/missouri-mt.php.

 

Murray Feldman et al., Learning to Manage Our Wild and Scenic River System, 20 Nat. Resources & Env’t 10 (2005).

 

Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271–1287 (2014).

 

Wild and Scenic River Designation, Wild and Scenic Rivers Council, https://www.rivers.gov/designation.php.


In discussions about water shortage, the topic of the human right to water seems to be a key topic of debate. Different countries approach the question of whether individuals should have a right to access safe water differently, and much has been written comparing approaches.  One aspect that is less well covered is how different countries approach water allocation for “non-essential” water uses in times of shortage.

The wines of South Africa’s Western Cape are world renowned. But the recent water crisis in this region has strained the industry, causing lower yields, increasing costs, and raising the question of priority for uses not considered essential to fulfilling a human right to water. Consecutive bad years threaten to bankrupt viticulturalists. Grape vines are perennials, taking years to mature, and death from stress or culling to save water can set grape growers back a decade or more. Combined with economic stress from lower yields, vineyards face tough choices in how to use meager water allocations.

South Africa is an extreme and timely case study, but drought is increasingly endemic to the wine industry globally. From the South Africa to Australia, France to California, water shortage is becoming a reality for grape growers. In such situations, wine is shaped by law as much as the rains. These struggles faced by wine suppliers highlight a conundrum that is gaining attention across States and industries. States take a variety of legal positions when rationing water during shortage. With increasing frequency, water sources are so stressed the basic needs of individuals are threatened. In such a situation, can and should law and policy restrict access for non-essential industries that don’t directly relate to individual needs? Wine offers a look at how this tension plays out. While enjoyable, it does not provide essential sustenance. A comparison how different wine growing regions regulate viticulturalists during severe drought offers an interesting look at the different ways of apportioning water when there’s just not enough to go around:  some let the market sort everything out, while others take a more active role in deciding who gets what.

The Western Cape, Water Crisis, and Wine

The Western Cape of South Africa is entering its third consecutive year of inadequate rainfall. Many reservoirs, both municipal and agricultural, have been exhausted to the point of collapse, without normal replenishment. Dam levels fell to an average 21.4 percent, while the bottom 15 percent is unusable due to siltation. This has led to extreme conservation measures. Cape Town limited individuals to fifty liters per person per day, rapidly approaching the statutory guaranteed minimum of twenty-five liters per day. While individuals have a constitutionally guaranteed right to water minimum, juridical persons like businesses share no such protection.

Legally, water in South Africa is a common resource entrusted to state administration. Private parties may acquire authorizations to use water from a local state authority, a Catchment Management Agency. But there are significant limitations. The State can set temporal limits, assert guaranteed rights necessity to supersede rights, or implement pricing structures changing incentivize particular uses as more wasteful or beneficial. First, these licenses have an expiration date, whereupon licensees must reapply to state administrators. Second, basic human needs and environmental concerns have priority over other uses like agriculture during shortage, curtailing non-essential rights. Finally, the government charges a scalable tariff for any uses above the fifty-liter individual minimum, and for specific types of uses. Using these methods, the government exercises great control over water allocation.

For example, the government can exercise legal priority and economic pricing during the current drought to incentivize municipal uses over grape growing. Agriculture’s ability to use non-potable sources and geographical/infrastructure challenges have spared many vineyards from pressure to yield to individual needs. Still, the average irrigation dam fill is also low—at 26 percent—and local rainfall is inadequate to make up for the shortage. Should they share water with more critical uses, the local Catchment Agency may set prices higher for vineyards to disincentivize their use. In extreme cases, the Catchment Agency may even invoke the higher priority of human and ecological rights to limit or refuse water to vineyards.

Another challenge to giving a human right to water is a decrease in economic labor, leading to unemployment and unrest. Seasonal unskilled labor makes up 75 percent of South Africa’s agricultural sector. A decrease in vineyard yields means a decrease in jobs, increasing unemployment. This can have a cascading and catastrophic effect. In a country facing social unrest, water stress is another factor increasing social tensions. So while facially it might be prudent to conserve water for individual use, there could potentially be secondary effects impacting a broader population.

The challenges this drought poses for viticulturalists create an interesting case study of South Africa’s water law at work. If the drought continues, grapes may increasingly struggle compared to more urgent social uses. The price may increase so drastically that operating at current sizes may not make sense, setting vineyards back decades if they are forced to fallow vines. Additionally, the government can and has invoked priority of human rights to shuttle water away from agricultural uses. The subjugated priority makes it legally difficult to justify against other consumers, like potable water or more essential foodstuffs. And resulting lost labor would hurt the economy and add to social unrest. Michael Fridjhon, a prominent South African wine judge, has no doubt 2018 will be a defining year for South Africa’s wine industry.

 

Murray-Darling Basin, Australia, and Regulated Water Markets

Australian vineyards have battled drought before—the Millennium Drought from 1997 to 2009 was the longest, deepest, and most severe on record. This coincided with a glut in the grape market. Reacting to rising demand in the early nineties, new vineyards matured just as the drought hit, flooding the market with competition. These two factors had devastating effects on individual vineyards. Both the government and industry had to change their relation to water conservation by adopting a market approach combined with government-regulated allocations. The Millennium Drought offers a retrospective of how industry and government adapted to water stress using a market-based approach.

In Australia, rights are vested in the federal government, and managed by individual states. Complicating this, the Murray Darling Basin, the primary location for agriculture, overlaps three states, each with its own water allocation plan. In 2004, in response to drought, Australia developed an entitlement and allocation system—as well as a water market—to encourage best beneficial use. Entitlements are individual rights, granted in perpetuity and severed from the land. State agencies issue a yearly allocation plan dividing those entitlements, so they operate more like “shares” in a river allocation than a defined absolute volume. In response to the drought and interstate complications, in 2007 the states banded together to create the Murray-Darling Basin Authority to cover planning for the whole basin. A government-monitored market allows trading of both entitlements and yearly allocations, which steadily expanded as the drought intensified.

At first, the drought caused high water prices for viticulturalists in the loosening market, coupled with lower individual yields. The maturation of vines planted a decade earlier resulted in rock bottom grape prices due to increased competition. The eventual result though was a boon for vineyard owners, who were able to supplement allocations that were lower than they expected and save their vines from irreparable harm and death. Creating statutory rights and a robust regulated market helped vineyards survive despite water shortage.

 

Bordeaux, France: Old Ways, New Challenges

A combination of drought and extreme weather events have stricken European grape harvests, leading to a 20-percent drop in harvest from 2013 to present. Last year marked the smallest vintage in over sixty years. Government and industry have taken steps to combat a changing climate, but change comes slowly to a region so steeped in tradition.

The French government administers water in the public trust through planning and management. Irrigating vineyards has historically been illegal, with rainfall providing the sole source of water. This policy was strongly tied to keeping a ‘pure’ approach to viticulture. But on the heels of their own drought in 2005, regulations against irrigation have eased. Drip irrigation was allowed for the first time, to protect France’s number one agricultural export. This also means viticulture is now tied into the local water supply.

Additionally, in 2016, France became the first European Union nation to adopt a human right to water. However, the exact scope of this right is unclear and untested. France has not faced choices like South Africa, between providing a human right to water and continuing economically important, but vitally unessential industries.

Water scarcity increasingly impacts France’s wine regions, but it has not yet reached a critical juncture like in South Africa or Australia. French laws and regulations are adapting to react to this new threat, albeit slowly and cautiously. Because these laws and regulations are so new, it is not yet clear how a human right to water and loosening irrigation regulations will impact wine industry. Future severe droughts will test the French system, and since the set-up mirrors South Africa, it may play out in the same way.

 

California and the Free Market of Prior Appropriation

Balancing limited water resources with its position as a national agricultural epicenter is a well-trod discussion for the American West. California faced significant drought from 2012 to 2017, where reservoir totals dropped to as low as 8 percent. Much like the previous regions, this resulted in extreme stress on perennials like grape vines.

Water law in the U.S. is highly state-specific, but all states west of the 100th meridian, where precipitation alone is insufficient to grow crops, generally follow some form of Prior Appropriation. In this system, users must divert water and apply it to a beneficial use. Unlike percentage allocations of total supply such as in Australia, maximum use in California is usually capped at a specific amount, and is subject to seniority rather than state allocation. Additionally, there is a “use it or lose it” approach—if a user doesn’t use their maximum allocation, they risk forfeiting it in the future. It has been argued this protecting of rights is in fact counter-productive, encouraging waste among users who fear forfeiting valuable rights in over-allocated streams. Trading full rights is allowed, but to transfer portions of a right puts the user at risk of forfeiting it permanently.

Prior Appropriation states do not recognize or give special treatment to a human right to water, relying instead on free markets to provide for needs. California is the lone U.S. state to recognize a human right to water, codifying it in 2012. This guarantees a right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes. However, the scope of this right focuses on connecting rural and disadvantaged people to municipal water supplies. It does not address an individual’s relative priority in the Prior Appropriation system. The most senior rights, regardless of how they intend to use the water as long as it is beneficial, get priority.

This more hands-off, free-market approach puts most of the onus to surviving the drought on vintners. This can be a blessing or a curse, depending on a farmer’s position in the priority scheme. A senior right assures at least some flow, while a junior right is subject to fulfillment of those before it. At least there is relative reliance on this system for users, with no fear of expropriation for domestic use like in South Africa. While some state constitutions like Colorado in text provide for priority for domestic uses over agricultural and industry, courts have been hesitant to interpret this to upset the priority system. In Town of Sterling v. Pawnee Ditch, the Colorado Supreme court held constitutional language that domestic water uses were preferred above all others did not supersede constitutional protections against taking private property without just compensation.

During the California drought, farms adopted more efficient irrigation methods like drip irrigation, and used supplemental groundwater to weather the worst of it. Vines survived until the rains returned, but survive is very different from thrive. California vineyards are still in a precarious situation. While, for now the waters have returned easing the tension, but will the conservation lessons learned stick around or will fear of forfeiting rights return viticulturalists to the old ways?

 

Putting It All Together: What Trends Emerge Around Non-Essential Industries and Their Relative Priority

These four approaches to regulating water shortage fall on a spectrum. States with strong commitments to a human right to water like South Africa fall on one end. Here, states have decided that an individual human right to water eclipses rights that are not essential for vitality. The upside is there are protections for individuals so people do not face dehydration or death during water crises. The downside is uncertainty for those non-essential industries, and the fallout from diverting water away from these industries can have sever economic effects, rippling throughout a society.

On the other end of the spectrum is a free-market priority system like in California. First in time, first in right provides certainty for rights holders, who know where they stand in line. It also allows a certain freedom to buy or sell rights to fulfill specific needs. While individuals claim no right to water, municipalities often have large bargaining power to ensure individual needs are met. Still, a tendency towards maximizing individual rights usage to preserve them conflicts with conservation. And less regulated markets combined with hesitance to enforce priority for specific types of uses like domestic over agricultural means no guarantee water will be put to societally advantageous use.

Both France and Australian approaches fall in the middle. France’s relatively new regulatory changes and recognition of a human right to water put it more towards South Africa. But since this system has not faced a true test, a resolution to the tension between uses and needs remains unresolved. Australia’s market system leans more towards the California approach. But Australian markets are more regulated, and the government exercises more control by decreeing allocations in yearly basin plans.

It is evident that as droughts become a more common phenomenon globally, the tension between vital needs and economic needs is increasing. While this spectrum by no means marks the only way to approach a water shortage, a clear trend is emerging that States are choosing between free economic choice to allocate water, and ensuring basic human needs are guaranteed.

So which approach is right? Should there be a human right to water that supersedes non-essential industry rights, or should there be protections for freedom to own usufructuary rights? Approaches should be tailor-made to different cultures, geography, and legal traditions. After all, hydrological challenges are hyper-geographically specific, and the machinery of the law turns slowly. But evidence of increasing water stress globally makes this discussion far from theoretical. U.S. water lawyers would be wise to pay attention to how shortages play out in other countries in order to best advise their clients on which directions the tides may be turning.

Mike Larrick

 

Image: A concrete lined irrigation ditch runs between grape vines in South Africa’s Western Cape. Flickr user Jason Jones, Creative Commons.

 

Sources:

 

Michael Fridjhon, Water Crisis Will Have a Significant Impact on Cape Wine Industry, Daily Maverick (Jan. 23, 2018, 12:26 PM), https://www.dailymaverick.co.za/opinionista/2018-01-23-water-crisis-will-have-a-significant-impact-on-cape-wine-industry/.

 

Petru Saal, Stellenbosch Imposes Stricter Water Restrictions, Times Live (Feb. 19, 2018, 14:49), https://www.timeslive.co.za/news/south-africa/2018-02-19-stellenbosch-imposes-stricter-water-restrictions/.

 

Peter Johnston, How Western Cape Farmers are being Hit by the Drought, Sunday Times (Feb. 26, 2018, 11:49 AM), https://www.timeslive.co.za/sunday-times/business/2018-02-26-how-western-cape-farmers-are-being-hit-by-the-drought/.

 

Tanisha Heiberg, Drought to hit South Africa’s 2018 Wine Harvest, Reuters (Dec. 19, 2017, 5:44 AM), https://www.reuters.com/article/us-safrica-wine/drought-to-hit-south-africas-2018-wine-harvest-idUSKBN1ED1HU.

 

Brian Browdie, Cape Town’s Water Shortage Crisis is Threatening South Africa’s Wine Harvest, Quartz Africa (Jan. 26, 2018), https://qz.com/1189336/cape-town-water-crisis-south-african-wine-vineyard-harvest-will-be-hit-by-drought/.

 

Western Cape Gov., Latest Western Cape Dam Levels (Feb. 28, 2018), https://www.westerncape.gov.za/general-publication/latest-western-cape-dam-levels.

 

Nidha Narrandes, Level 6B: Your Guide to 50 Litres a Day, Cape Town Etc (Feb. 1, 2018), http://www.capetownetc.com/water-crisis/cape-town-water-crisis-guide-50-litres/.

 

Dept. of Water Aff. and Forestry, Water Supply and Sanitation Policy White Paper (Nov. 1994), available at http://www.dwa.gov.za/Documents/Policies/WSSP.pdf.

 

DD Tewari, A detailed analysis of evolution of water rights in South Africa: An account of three and a half centuries from 1652 AD to present, 35 Water SA 693, 703 (Oct. 2009), available at http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1816-79502009000500019.

 

Maven, Lessons from Australia’s Millennium Drought, Maven’s Notebook (Jan. 27, 2015), https://mavensnotebook.com/2015/01/27/lessons-from-australias-millennium-drought/.

 

Lee Godden, Water Law Reform In Australia and South Africa, 17 J. Envtl. L. 181, 189 (2005).

Murray-Darling Basin Authority, Catchments, available at https://www.mdba.gov.au/discover-basin/catchments.

 

Murray-Darling Basin Authority, About, available at https://www.mdba.gov.au/about-us.

 

Murray-Darling Basin Authority, Water Markets and Trade, available at https://www.mdba.gov.au/managing-water/water-markets-and-trade.

 

  1. Quenten Grafton, et al., Water Markets: Australia’s Murray-Darling Basin and the US Southwest, Nat’l Bureau of Econ. Res., Working Paper 15797, available at http://www.nber.org/papers/w15797.pdf.

 

Ivana Kottasová, Disastrous harvest means wine prices could be going up, CNN Money (Oct. 16, 2017, 8:34 AM), http://money.cnn.com/2017/10/13/news/wine-shortage-europe-weather-california-fire/index.html.

 

Rudy Ruitenberg, France to Make Least Wine in 60 Years After Bad Weather Hits Grapes, Bloomberg (Oct. 6, 2017, 5:13 AM), https://www.bloomberg.com/news/articles/2017-10-06/france-to-make-least-wine-in-60-years-as-frost-rot-hit-grapes.

 

Envtl. Protection Dept., Ref. SA 07-002 Review of the International Water Resources Management Policies and Actions and the Latest Practice in their Environmental Evaluation and Strategic Environmental Assessment (Nov. 2007), http://www.epd.gov.hk/epd/SEA/eng/file/water_index/france.pdf.

 

Jancis Robinson, Irrigation now official in France, (Apr. 11, 2007), https://www.jancisrobinson.com/articles/irrigation-now-official-in-france.

 

The Right To Water And Sanitation, France Adopts the Right to Water and Sanitation (June 16, 2016, 3:45 PM), http://www.righttowater.info/france-adopts-the-right-to-water-and-sanitation/.

 

Alastair Bland, With Warming Climes, How Long Will A Bordeaux Be A Bordeaux?, NPR (May 8, 2013, 12:37 PM ET), https://www.npr.org/sections/thesalt/2013/05/06/181684846/with-warming-climes-how-long-will-a-bordeaux-be-a-bordeaux.

 

All Things Considered, Cape Town Copes with Water Crisis, NPR (Feb. 4, 2018, 5:08 PM), https://www.npr.org/2018/02/04/583152356/cape-town-copes-with-water-crisis.

 

All Things Considered, How a Historical Blunder Helped Create the Water Crisis In the West, NPR (June 25, 2015, 3:06 PM), https://www.npr.org/2015/06/25/417430662/how-a-historical-blunder-helped-create-the-water-crisis-in-the-west.

 

Alicia Garcia, Responding to Drought: Calls for Change and Recent Reforms in California, Denver U. Water L. Rev. (Jan. 24, 2017), http://duwaterlawreview.com/responding-to-drought-calls-for-change-and-recent-reforms-in-california/.

 

Madilynne Clark, Use it or lose It – a counterproductive aspect of Washington’s water law that hurts conservation efforts, Wash. Pol’y Cent. (Mar 23, 2017), https://www.washingtonpolicy.org/publications/detail/use-it-or-lose-it-a-counterproductive-aspect-of-washingtons-water-law-that-hurts-conservation-efforts.

 

Timothy Wright, Putting Some over the Hill: The Disparate Impact of Drought in California, 32 J. Envt’l L. & Lit. 143 (2016).

 

Cal. Water Code § 106.3 (West 2018).

 

Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882)

 

State ex rel. Cary v. Cochran, 292 N.W. 239, 246 (Neb. 1940).

 

Town of Sterling v. Pawnee Ditch Extension Co., 94 P. 339 (Colo. 1908).

 

Brian Palmer, Is Water a Human Right?, NRDC (Mar. 3, 2016), https://www.nrdc.org/onearth/water-human-right.

 


Editor’s Note: Part one of this two-part blog discussed a potential decommissioning or removal of Arizona’s Glen Canyon Dam (“Dam”) and the potential legal ramifications that it would could have on the myriad compacts, court decisions, treaties, laws, and rules comprising the Law of the River. This follow-up continues the discussion of the legal issues of dam removal by outlining the potential environmental legal impediments to and ramifications.

 

The Potential Removal of the Glen Canyon Dam (Brief Recap)

 

While the Bureau of Reclamation recently recommissioned the Glen Canyon Dam for the next twenty years, many scientists and environmentalists still argue that removing the Dam will help the river and the animal and plant life return to the Glen Canyon area. For thousands of years the Colorado River flowed through the Glen Canyon into the Grand Canyon—untamed and wild—bringing life to the canyon walls and the riverbanks. Construction of the Dam and Lake Powell changed the ecosystems of both the Glen Canyon and the Grand Canyon. Lake Powell’s water quality suffered as contaminated sediment settled on the lake bottom behind the Dam. Numerous native fish species in Glen Canyon became extinct or endangered as temperatures in the Lake changed and new species arrived. Natural beaches in the Grand Canyon began to disappear due to a lack of sediment freely flowing down stream, destroying habitats throughout the canyon.

 

Proponents of Dam decommission or removal believe that without the Dam, the Colorado River will return to the healthy and primitive state it once enjoyed. However, returning the Colorado River to its original glory will not be as simple as just removing the Dam itself. First, new species—some of which are endangered or threatened—have made a home in Glen Canyon’s new ecosystem.  Removing the Dam could cause these endangered or threatened species (such as the Mexican spotted owls) to lose habitat. Additionally, temperature changes in the water have altered the ecosystem in both Glen Canyon and downstream throughout the Grand Canyon—causing other species to become endangered. This means that either option, removing the dam or keeping it in place, could adversely affect endangered or threatened species in the area. Finally, removing the Dam could re-alter the current ecosystem as well as release the harmful contaminants that have built up at the lake bottom over the decades downstream, potentially causing more harm than good if not done right.

 

Whether removing the dam completely or decommissioning it to allow most of the River to bypass the Dam but leaving enough water behind the Dam to continue generating power—any action will likely have a wide range of complicated effects the River. As such, advocacy groups and state and federal agencies will have a lot of work to do in evaluating every legal and environmental issue that might affect the Glen Canyon, the Grand Canyon, and the Colorado River ecosystem before any hypothetical plan can gain traction. The following sections outline the major federal environmental laws triggered by the Dam removal.

 

Environmental Legal Issues

 

There are several arguments against removing the Dam based on the legal effects of international treaties, tribal treaties, and interstate compacts, but some of the biggest obstacles come from environmental legal concerns. Before removal of the Glen Canyon Dam can even be put into action, the National Environmental Policy Act (“NEPA”) would require an environmental impact statement (“EIS”) be conducted and published.

 

There are a number of published statements related to the Dam’s operation that might provide some insight into what a new EIS might look like. One EIS from 1995 analyzes the impacts of operations from 1963 to 1990 and evaluates nine alternative operations that provide either steady flows or fluctuating flows and their impacts downstream. This EIS does not suggest removing the Dam or decommissioning it as an alternative operation. In 2016, the Department of the Interior released another EIS related to the Dam’s recent recommissioning. There are seven proposals for managing the operations of the Dam over the next twenty years. While none of these proposals cite to Dam removal or allowing the River to bypass the Dam, the EIS does address the Dam’s impacts on endangered species.

 

Since there is not an EIS that specifically contemplated the removal or decommissioning of the Dam, looking elsewhere to other examples of dam removal—such as on the Klamath River—is instructive. An EIS published in December 2012 analyzed the potential impacts to the environment from the proposed removal of four dams along the Klamath River.  Many events led to the plan to take down the dams, including a sharp decline in fish species, public health warnings over water quality due to algae blooms, and significant reduction in water deliveries due to dry hydrologic conditions. The EIS analyzed five possible actions to address the issues above: (1) no action/no project alternative; (2) full removal of all four dams (proposed action); (3) partial removal of all four dams; (4) fish passage at all four dams; and (5) fish passage at two dams, and removal of the other two dams. The EIS report discussed the environmental impacts and environmental benefits of each proposition. After a complete analysis of the EIS, officials decided to remove all four dams.

 

Likewise, some sort of similar EIS would be necessary in order to remove or decommission the Glen Canyon Dam. There are at least two large environmental legal concerns in decommissioning or removing the Glen Canyon Dam the EIS would have consider: The Clean Water Act (“CWA”) and The Endangered Species Act (“ESA”). The following sections will address each of these separately. Furthermore, an EIS would also need to address the large amounts of contaminated sediment in Lake Powell. The final section of this blog will address the potential cleanup of Lake Powell through the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).

 

Clean Water Act

 

The CWA establishes the basic structure for regulating discharges of pollutants into the water of the United States and regulating quality standards for surface waters. As dam removal has become more common across the United States, in December 2016 the EPA released a Frequently Asked Questions Sheet about dam removals and the CWA. The EPA explains that there are at least three adverse impacts dam removal might have on the quality of the river’s water: (1) increased turbidity (the cloudiness or haziness of a fluid caused by large numbers of individual particles that are generally invisible to the naked eye); (2) damage to aquatic plants and animals or habitats through sediment abrasion or burial; and (3) release of contaminated sediment.

 

While these impacts would be addressed in an EIS, the EPA recommends that the Dam removal process be evaluated by the state’s water quality certification under Section 401 as well as by Section 404. Section 401 of the CWA requires that an applicant for a federal license or permit—such as a permit to remove a dam—provide a certification that any discharges from the facility will comply with the Act, including state-established water quality standards. Section 404 requires a permit before dredged or fill material may be discharged into waters of the United States. To apply for a permit, the applicant must first show that steps have been taken to avoid impacts to wetlands, streams and other aquatic resources, that potential impacts have been minimized, and that compensation will be provided for all remaining unavoidable impacts.

 

Therefore, before the removing the Dam, the U.S. must apply for permits under both Section 401 and Section 404 of the CWA.  The U.S. will need to get Section 401 certification from all downstream states (Arizona, Nevada, and California). Officials must also ensure that all discharges, such as sediment from behind the Dam, will comply with the CWA and that there is proper compensation for unavoidable impacts of removing the Dam such as releasing some contaminated sediment downstream, which will be discussed further in sections below.

 

Endangered Species Act

 

The Endangered Species Act provides for the conservation of species that are endangered or threatened and to conserve their ecosystems. The ESA requires all federal agencies to submit a Consultation before undertaking activities that may affect a listed species. A Section 7 ESA Consultation process requires federal agencies to request from the Fish and Wildlife Service (“FWS”) a list of species and their critical habitats that may be in the project area, review the agency’s actions, and determine whether these actions may affect federally listed and proposed species or proposed and designated critical habitat. If no species or their critical habitat are affected, no further consultation is required. However, if any of these species could be negatively affected, consultation with the FWS is required. This consultation will conclude either informally with written concurrence from the Service or through formal consultation with a biological opinion provided to the federal agency. Since there are a number of listed species in the Glen Canyon area, before the Bureau of Reclamation could remove or decommission the Glen Canyon Dam, it would need to ensure that any actions do not jeopardize these species’ existence or critical habitats.

 

There are more than twenty endangered species inhabiting Glen Canyon, according to the National Park Service.  This includes four species identified as at risk by the Glen Canyon Dam operations. These species are the humpback chub, the Kanab Ambersnail, the razorback sucker, and the southwestern willow flycatcher. Construction of the Dam changed the original ecosystems of these four species. As water cooled behind the Dam, warm water fish species started to decline. Non-native predatory species like trout began to thrive in the area, further harming species such as the humpback chub.

 

Removing the Dam or allowing the Colorado River to bypass the Dam could lead to a resurgence of endangered fish species as seen in other dam removal projects around the country. For example, after the removal of a 100-year-old dam in Alabama, the endangered Vermillion darter began to swim upstream beyond the dam site to create new habitats and new populations. Likewise, during first spawning season after the removal of the Elwha Dam in Washington State, researchers found more than 4000 salmon spawners in the Elwha River, with fish populations now at their highest in almost thirty years. Thus, removing the Glen Canyon Dam could also result in a growth in endangered fish populations due to a change to the temperature of the water again and the freedom to swim up and down the canyon. Endangered fish like the humpback chub could once again flourish if the threats against this species are removed.

 

Yet, removing the Dam could theoretically also lead to a change in habitat for endangered species that have seen grown accustomed to Lake Powell’s ecosystem. Any consultation process would need to determine whether dam removal would jeopardize or negatively affect a listed species. If removal would only negatively affect—but not jeopardize—then dam removal could proceed with mitigation measures outlined in an Incidental Take Statement. A finding of jeopardy, however, would prohibit the action entirely, no matter how beneficial the removal would be to every other listed species. Even if, hypothetically, dam removal was necessary to prevent nineteen endangered species from going extinct entirely but the removal itself would jeopardize just one species, then the removal could not take place at all. This is because the ESA is only a limit on federal actions—it does compel affirmative action to protect species.  While this scenario is unlikely given the high threshold for jeopardy, it is something that warrants consideration before any removal proposal could become a reality.

 

CERCLA

 

Another potential issue in dam removal is the release of contaminated sediment from behind the dam. Lake Powell’s bottom is currently filled with tons of uranium, radium, and thorium pollution from mining operations, as well as other contaminants from urban and agricultural runoff upstream. More and more pollution finds its way into Lake Powell each year. This pollution, sits trapped in the silt along the bottom of the Lake.

 

If the Glen Canyon Dam is removed, allowing the Colorado River to flow freely, the trapped sediment and other contamination materials behind the dam will be able to move freely downstream through the Grand Canyon and into Lake Mead, which is also already highly contaminated. While there does not appear any governmental entity or department is currently taking measures to deal with these contaminated materials in the Lake, some experts argue that Lake Powell could be eligible for Superfund status.

 

A textbook example of how contaminated sediment releases can affect downstream environments is the removal of the Fort Edwards Dam in New York in the 1970s. For nearly thirty years beginning in the 1940s, General Electric discharged harmful chemicals from their Fort Edward facility into the Hudson River. These chemicals were then trapped behind the Fort Edwards Dam, adhering to the sediments at the bottom of the Hudson behind the Edwards Dam. In 1973 the Edwards Dam was removed, and those chemicals traveled down the Hudson River affecting human and wildlife downstream for years. From 1975 to 1980, New York officials were forced to limit the human contact with the Hudson and consumption of Hudson River fish. In 1984 the Hudson River was declared a Superfund Site under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Decades later, the clean-up process is still a point of contention between the EPA and General Electric.

 

In addition to Superfund, CERCLA might also be relevant for the liability it could attach to the U.S. as owner and operator of the Dam if removal releases hazardous substances.  However, this would likely not occur because liability only matters if hazardous substances occurred in quantities large enough to require cleanup under the National Contingency Plan. And if those engaged in the cleanup determine that the Dam was a source of those hazardous substances, only then would the U.S. be liable.  If no one decides to cleanup the area, the U.S. would most likely not be liable, since there are no costs to be liable for.

 

Conclusion

 

All in all, decommissioning or removing the Glen Canyon Dam would allow the Colorado River to once again flow freely through parts of the West. However, before these ideas can become reality many legal hurdles—from assessing the impact on interstate compacts and treaties to determining whether or not CERCLA clean-up should take place—need to be overcome. As dams across the United States are removed, the Glen Canyon Dam may be a dam that stands for decades to come.

 

Kristina Ellis

 

Image: Lake Powell at the bottom of Hole in the Rock, Glen Canyon National Recreation Area, Utah. Wikicommons user, Peter Fitzgerald. Creative Commons.

 

Sources

 

Statutes:

 

National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (1970).

 

Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (1973).

 

Clean Water Act, 33 U.S.C. §§ 1251 et seq. (1972).

 

Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq. (1980).

 

Environmental Impact Statements:

 

Bureau of Reclamation, Operation of Glen Canyon Dam: Final Environmental Statement (1995), https://www.usbr.gov/uc/library/envdocs/eis/gc/gcdOpsFEIS.html.

 

Department of the Interior, Record of Decision for the Glen Canyon Dam Long-Term Experimental and Management Plan Final Environmental Impact Statement (2016) http://ltempeis.anl.gov/documents/docs/LTEMP_ROD.pdf.

 

Department of the Interior, Klamath Facilities Removal: Final EIS/EIR (2012) https://klamathrestoration.gov/sites/klamathrestoration.gov/files/Additonal%20Files%20/1/Executive%20Summary.pdf .

 

Articles:

 

Will Houston, Klamath River Dam Removal Plan on Track as Administration Shifts, Times Standard News (Feb. 28, 2017), http://www.timesstandard.com/article/NJ/20170228/NEWS/170229795.

 

Kristina Langlois, Down with the Glen Canyon Dam?, High Country News (Sept. 4, 2017), http://www.hcn.org/issues/49.15/rivers-down-with-the-glen-canyon-dam.

 

Jonathan Thompson, The 26,000 Tons of Radioactive Waste Under Lake Powell, High Country News (Dec. 18, 2017), http://www.hcn.org/articles/pollution-a-26-000-ton-pile-of-radioactive-waste-lies-under-the-waters-and-silt-of-lake-powell.

 

Steven W. Carothers & Dorothy A. House, Decommission Glen Canyon Dam: The Key to Colorado River Ecosystem Restoration and Recovery of Endangered Species?,  42 Ariz. L. Rev. 215 (2000), http://www.riversimulator.org/Resources/Controversy/AzLwRvwCarothersHouse2000.pdf.

 

Christine Sur, Endangered Species and Adaptive Management in the Grand Canyon, https://watershed.ucdavis.edu/education/classes/files/content/page/ESA and adaptive management_Grand Canyon_Christine Sur.pdf.

 

Lynda V. Mapes, Elwha: Roaring Back to Life, Seattle Times (Feb. 13, 2016), https://projects.seattletimes.com/2016/elwha/.

 

Endangered Alabama Fish Found Upstream of Dam Removal Site, Fresh Water Land Trust (Nov. 8, 2017), http://www.freshwaterlandtrust.org/endangered-fish-found-upstream-dam-removal-site.

 

Jeremy P. Jacobs, Dams Seen Driving ‘Mass Extinction’ of Salmon, E&E News (Sept. 26, 2017), https://www.eenews.net/stories/1060061615.

 

Ken Ritter, Feds Give 20 More Years to the Glen Canyon Dam on Colorado River, Denv. Post (Oct. 31, 2017), https://www.denverpost.com/2016/12/16/feds-20-years-glen-canyon-dam-colorado-river/.

 

Tara Lohan, Calls to Rethink the Colorado River’s Iconic Dams Grow Louder, NewsDeeply (May 15, 2017), https://www.newsdeeply.com/water/articles/2017/05/15/calls-to-rethink-the-colorado-rivers-iconic-dams-grow-louder.

 

 

Other Resources:

 

Lake Powell Water Quality, Glen Canyon Natural History Association http://www.glencanyonnha.org/lake-powell-water-quality/.

 

Lower Colorado River Species List, Kenyon http://www2.kenyon.edu/projects/Dams/gbe035hol.html.

 

Grand Canyon, Glen Canyon Institute, https://www.glencanyon.org/glen_canyon/grand-canyon.

 

Summary of the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund), EPA https://www.epa.gov/laws-regulations/summary-comprehensive-environmental-response-compensation-and-liability-act.

 

Superfund: CERCLA Overview, EPA.gov https://www.epa.gov/superfund/superfund-cercla-overview.

 

Frequently Asked Questions on Removal of Obsolete Dams, EPA.gov

https://www.epa.gov/sites/production/files/2016-12/documents/2016_december_2_clean_final_dam_removal_faqs_0.pdf.

 

Summary of the Clean Water Act, EPA.gov https://www.epa.gov/laws-regulations/summary-clean-water-act.

 

Consulting with Federal Agencies (ESA Section 7), NOAA Fisheries, http://www.nmfs.noaa.gov/pr/consultation/.

 

Endangered Species Act (ESA), NOAA Fisheries, http://www.nmfs.noaa.gov/pr/laws/esa/.

 

Hudson River PCBs Superfund Site, EPA.gov, https://www3.epa.gov/hudson/actions.htm.

 

E-mail from Justin Pidot, Professor of Law at University of Denver, Sturm College of Law, to Kristina Ellis, Staff Editor at the Water Law Review (Mar. 13, 2018, 14:47 MST).

 

E-mail from Justin Pidot, Professor of Law at University of Denver, Sturm College of Law, to Kristina Ellis, Staff Editor at the Water Law Review (Apr. 02, 2018, 13:50 MST).

 


The number of people living in the water-scarce West has skyrocketed in recent decades. Colorado, for example, was home to 2.2 million people in 1970. By 2015, the state had grown to 5.5 million people, more than doubling the population. Current estimates suggest Colorado will reach 8.5 million people by 2050. Cities throughout the region continue to rank among the fastest-growing in the country. To accommodate the surge of new people, local governments have approved scores of new developments. This rapid population growth, however, poses a particularly poignant problem: ensuring water supplies can keep up with increased demand.

Currently, many states—including those with limited water supplies—use a build-first-find-water-second approach to supplying water for new developments. Land-use planners approve and regulate new development projects absent any water planning. Water managers and utilities then react to the increased demand by procuring additional water supplies or implementing new systems to ensure supplies for new communities. For a long period of time, reactive water planning worked. States addressed the increasing demand for water through a combination of conservation efforts, water diversions, and market-based reallocations of water from agriculture to cities.

For Colorado and other arid states, however, extending the status quo is no longer an option—reactive planning is no longer sufficient. Colorado is anticipating a significant water supply shortfall in the next few decades with limited options for procuring additional water supplies to meet the projected demands. To save off this shortfall, Colorado and other states must integrate water and land-use planning for new developments. This change, however, is easier said than done and will require rectifying the historical disconnect between water and land-use planning processes.

The Governance Gap

Often water planning and land-use planning for new developments are isolated, occurring within entirely separate legal frameworks. This so-called “governance gap” exists for two reasons. First, strategic water availability planning is traditionally a state function, while land-use planning for new development falls within the purview of local governments. Second, state water managers and local municipalities are often driven by different goals. Local officials are often under pressure to increase new development as a means of creating job growth or an increased tax base but have little reason to consider state-wide water availability (or the expertise to do so).

States typically take the lead in water management. State water administrators govern complex water regimes, often with the participation of federal agencies and tribes. States focus on ensuring long-term water supplies for their residents and are less involved in navigating competing demands like the “drying” of agricultural land or the need to engage the public.

Local governments, in contrast, oversee much of the land-use planning process. When local governments seek to grow and allow for new development, local planers typically create policy documents that set out the community’s long-term plans. Though these development plans can have a significant impact on water planning because they often include population estimates and details about the water infrastructure necessary to serve the community, they do not typically contemplate water supply planning.

To complicate matters, local governments may also participate in water planning through water companies and utilities. Municipalities own water rights and are generally responsible for determining the supply and demand for their service area and procuring the necessary water rights. This water planning can take place within the municipal government or, commonly, through a local water utility. Local utilities are frequently quasi-independent, and both physically and functionally separate from the municipal government. While development planners may need the approval of a local water utility after the plan is created, the utilities are seldom part of the initial plan, and development plans are often approved even where supplies are uncertain.

Now What?

While it is widely recognized that local governments should be given significant deference in controlling land-use planning, there is an increased focus on the role of the state in fostering sustainable growth through a more integrated planning process. Monica Green and Anne Castle at the University of Colorado suggest, “A starting point for this integration is the consideration of the availability of water to serve new development in the process of land-use approval by a local government.”

Similarly, Sarah Bates Van de Wetering at the University of Montana envisions an ideal system in which “water planning and development decisions . . . would incorporate deliberative public dialogue about long-term land-use priorities.” Specifically, in this system, “[l]and use planning would be mindful of water supply constraints, and would prioritize development that is most consistent with maintaining water quality and ensuring sustainable supplies.” At the same time, she says that “[w]ater suppliers would place a premium on making the best use of limited resources, minimizing demands, and ensuring that the impacts of water development on highly valued landscapes are acknowledged and taken into account before final decisions are made.”

Progress

Realizing the importance of incorporating water availability, supply management, and demand management into land-use planning, states and organizations have started to take action. Many states now require that new developments only be built where adequate supplies are available. While the extent of the water sufficiency review process varies, a few states have taken important steps to ensure decisions to approve developments accurately reflect the needs of the proposed communities, including helping to develop systems for realistic growth projections. For example, in Arizona and Nevada, state agencies provide expert review of water supply plans based on statutorily specified criteria. But, many state laws do not cover new development within current municipalities because municipalities are assumed to be able to handle the demands of new development. While this is sometimes true, significant new development within a municipality can strain or overwhelm a district’s resources.

A few states have also recognized that truly effective planning requires more than just legitimate water adequacy determinations. For example, Washington requires that each application for a building permit demonstrates adequate water supply; whereas, California only requires assured water supplies for subdivisions greater than five hundred homes. Additionally, states throughout the West have taken steps to improve conservation.

While no state has fully overcome the obstacles to integrated planning, and more work is needed, many states are beginning to take the critical steps necessary to better integrate their water and land-use planning processes and thus are helping to mitigate some of the potential water shortfalls expected in the West. Colorado, for example, created its first state water plan in 2015, which outlined objectives, goals, and actions for addressing the state’s future water needs. The plan incorporated input from water providers, local governments, the general public, and other stakeholders.

Many of these stakeholders are also the ones helping to implement Colorado’s water plan. For example, one proposed project was to create a Colorado Water and Growth Dialogue to develop recommendations for communities to create water savings in new developments and create a plan to disseminate the recommendations to local planners. Over two years—with funding from a variety of sources—a group of planners and other stakeholders met and achieved significant successes, including developing a residential land-use and water demand tool, which allows planners to understand differences in water demand for new developments.

Looking Forward

Many states are beginning to take steps to combat the governance gap and help mitigate potential water supply shortfalls over the next several decades, yet there is significant work left to be done. In Assured Water Supply Laws in the Western States, Monica Green and Anne Castle have cataloged the steps numerous states are taking to insure water sufficiency in the future. Their work illustrates that some states have made progress, but no state has fully solved the challenges of separate water governance systems.

Local and state officials will continue to have disparate priorities, and local control of land development remains a jealously guarded right. States with help from outside organizations, however, have succeeded in starting the process and educating communities. Whether or not states will take sufficient action has yet to be seen, but the importance of improvement cannot be overstated: the ability to live in the arid West hangs in the balance.

            Liz Trower

Image: Suburban development on the outskirts of Las Vegas, Nevada. Flickr User Bert Kaufmann, Creative Commons.

Sources

Anne Castle, John Sherman, & Larry MacDonnell, Integrated Land and Water Planning in Colorado, (2016), http://www.waterpolicy.info/wp-content/uploads/2016/09/Integrated-Land-and-Water-Planning-in-Colorado.pdf.

Drew Beckwith, New House New Paradigm: A Model for How to Plan, Build, and Live Water-Smart (2009), http://westernresourceadvocates.org/download/2381/

John Murray, Denver’s population has swelled in the last 7 years, Denv. Post, Sept. 28, 2017, http://theknow.denverpost.com/2017/09/28/denver-neighborhoods-growth-2017/160032/.

Kevin Hamm, Colorado’s population could increase by nearly 3 million people by 2050, Denv. Post, Jul. 18, 2017, http://www.denverpost.com/2017/07/28/colorado-population-forecast/.

Kevin Reidy, Water Conservation Technical Specialist, Colo. Water Conservation, Presentation at 2015 Rocky Mountain Land Use Institute Conference, Land Use and Colorado’s Water Plan, (Mar. 15, 2017) (presentation slides), http://www.law.du.edu/documents/rmlui/conference/powerpoints/2015/REIDYLandUse-CWP.pdf.

Monica Green and Anne Castle, Assured Water Supply Laws in the Western States: The Current State of Play, 28 Colo. Nat. Resources Energy & Envtl. L. Rev. 67 (2017), https://www.colorado.edu/law/sites/default/files/attached-files/castle_final.pdf.

Nelson Harvey, Show Us the Water, Headwaters, (Jul. 7, 2017), https://issuu.com/cfwe/docs/hw_sum_2015_final_opt

Sarah Bates Van de Wetering, Bridging the Governance Gap: Strategies to Integrate Water and Land Use Planning, U. Mont. Pub. Policy Res. Inst. 6-10, (2008), http://scholar.law.colorado.edu/cgi/viewcontent.cgi?article=1022&context=water-resources-and-transformation-of-American-West.

Colorado Water Conservation Board, Colorado’s Water Plan Executive Summary, (2015), http://cwcbweblink.state.co.us/weblink/0/doc/200996/Electronic.aspx?searchid=ab75ea87-7dbe-4fea-98dc-b924c94c17f0.

Western Resource Advocates, Hardest Working River in the West: Common-Sense Solutions for a Reliable Water Future for the Colorado River Basin (2014), https://westernresourceadvocates.org/wp-content/uploads/2017/10/CO_River_Solutions_Hardest-Working-River-in-the-West_Whitepaper.pdf#page=36


The grain-growing region in the High Plains of America—known as America’s breadbasket—relies entirely on the Ogallala Aquifer. But long term unsustainable use of the aquifer is forcing states in the region to face the prospect of a regional economic disaster. As the High Plains states reach the verge of a major crisis, the states have taken different approaches to conservation with varying results.

The Ogallala Aquifer supports an astounding one-sixth of the world’s grain produce, and it has long been an essential component of American agriculture. The High Plains region—where the aquifer lies—relies on the aquifer for residential and industrial uses, but the aquifer’s water is used primarily for agricultural irrigation. The agricultural demands for Ogallala water in the region are immense, with the aquifer ultimately being responsible for thirty percent of all irrigation in the United States. The Ogallala Aquifer has long been unable to keep up with these agricultural demands, as the aquifer recharges far slower than water is withdrawn.

Aside from the obvious agricultural ramifications from the Ogallala’s depletion, recent studies have shown that groundwater depletion also has a severe effect on freshwater ecosystems in the region. Each state has had to confront the issue in their own way, but the depletion of the aquifer has become severe enough to warrant the attention of the federal government as well. At the state level, the focus has been on maintaining an orderly depletion of the aquifer rather than developing a plan for sustainable use. However, some states have achieved some level of success in slowing down the aquifer’s depletion. Kansas, for example, has recently achieved mild success by adopting a program that put conservation in the hands of the State’s farmers. On the other hand, Nebraska has seen more success than Kansas by being tougher on farmers and exercising its enforcement powers. The federal government has also set up financial and technical assistance for farmers who commit to conservation and is funding large-scale pipeline projects to bring in water to the more desperate areas of the High Plains.

 

Background

(Image: Map of the Ogallala Aquifer identifying areas of depletion. United States Geological Survey.)

The Ogallala Aquifer, also known as the High Plains Aquifer, underlies eight different states, stretching across America’s High Plains from South Dakota down to Northern Texas. It is an unconfined aquifer that is recharged almost exclusively by rainwater and snowmelt, but given the semiarid climate of the High Plains, recharge is minimal. In some areas, the water table is dropping as much as two feet a year, but recharge in the aquifer only averages around three inches annually.

The aquifer provides nearly all of the water for residential, industrial, and agricultural uses in the High Plains region. Irrigated agriculture is particularly straining on the aquifer as the region is responsible for one-fifth of the wheat, corn, cotton, and cattle produced in the United States. The High Plains actually leads the entire Western Hemisphere in irrigation with fourteen million acres irrigated annually, primarily in Nebraska, Kansas, and Texas. Accordingly, farming accounts for an astounding ninety-four percent of groundwater use in the region.

The resulting strain on the aquifer has been apparent for decades as recharge in the semiarid region has been unable to keep up with such a high demand. Because of the continuous decline in the aquifer, some areas that traditionally relied on the aquifer for irrigation are now unable to do so. “We are basically drying out the Great Plains,” according to Kurt Fausch, a professor at Colorado State University who studies the Ogallala. In Western Kansas, for example, water levels have declined by up to sixty percent in some areas as the gap between what is withdrawn for irrigation and what is recharged continues to expand. In northwest Texas, so much water has been pumped and so little recharged that irrigation has largely depleted the aquifer in the area.

 

Effects of Depletion

Without Ogallala water, significant portions of the High Plain’s agriculture and related businesses are entirely unsustainable, which could threaten the existence of entire towns whose economies are dependent on water drawn from the aquifer. There are global implications as well, as the region produces one-sixth of the world’s grain produce. A study from Kansas State University predicted that the aquifer would be seventy percent depleted by 2060 if irrigation practices do not change. However, the study further predicted that the aquifer could potentially last up to one hundred more years if all farmers in the region cut their use by twenty percent.

Aside from the devastating effects on agriculture, a study recently published by a team of stream ecologists concluded that depletions to the Ogallala Aquifer are also leading to fish extinctions in the region. Streams and rivers that depend on the aquifer are drying out after decades of over-pumping. The study found pumping to be associated with collapses of large-stream fish and the simultaneous expansion of small-stream fish. This creates a catalyst for biotic homogenization, which in turn leads to less resilient aquatic communities and loss of ecosystem functions. The study predicts an additional loss of 286 kilometers of stream by 2060, as well as the continued replacement of large-stream fish by fish suited for smaller streams.

 

Addressing Depletion at the State Level

The High Plains states are accustomed to periods of water shortages, and, accordingly, these states have all established the statutory or regulatory power to strictly control groundwater use. However, while the High Plains states all have the legislative authority to regulate use of the Ogallala aquifer to ensure sustainable use, some states have been more or less hesitant to exercise those powers. Those states that do not strictly regulate groundwater have instead chosen to leave conservation in part to the water users themselves. Two states in particular have highly diverged in their approach to regulating groundwater—Kansas and Nebraska.Each state has legislation in place allowing the government to force farmers to reduce water use, but while Nebraska has actively used that power, Kansas has been much more hesitant.

In Kansas, the state’s chief engineer has the statutory power to designate an Intensive Groundwater Use Control Area to preserve the aquifer when required by the conditions. In exercising that power, the chief engineer can dramatically cut water applications for farmers and close applications for new water rights. The chief engineer has exercised that power several times in the last few decades, but Kansas state officials are often reluctant to do so. The director of the Kansas Water Office, Tracy Streeter, said, “We think it’s a harsh method. We would like to see groups of irrigators come together and work out a solution.”

Accordingly, the Kansas State Legislature amended the state’s water laws to allow groups of farmers and irrigators to voluntarily create Local Enhanced Management Areas (“LEMA(s)”) where they can implement their own groundwater conservation plans. These plans are then subject to approval by the state. Once approved, the plan becomes legally binding. One group of farmers has set up a ninety-nine square mile conservation zone where they agreed to a twenty percent reduction in irrigation for five years. After four years, they have steadily achieved their twenty percent reduction rate while, significantly, not seeing a reduction in profits. Some of their success has also been due in part to the implementation of drip irrigation and more sophisticated irrigation water management.

While that is a step in the right direction, this group of farmers is still the only group that has submitted a plan in Kansas. This arrangement has proven its potential for success, but the question remains on whether it is scalable for the rest of the state. The fact that only one group has formed is likely due to how difficult it is to create one—here, talks lasted three years before boundaries were agreed upon, and members of the group said they had to change their whole mindset and culture to come to an agreement.

Nebraska has taken a tougher stance than Kansas, and consequently has had more success in combating aquifer depletion. The Nebraska Ground Water Management and Protection Act allows the state government to limit irrigators’ water allocations as well as implement programs such as rotating water permits. Nebraska has also compromised with farmers, adopting a system like Kansas that empowers farmers and gives them control—so long as they come up with a plan to reduce use of the aquifer. The approach the state has taken has allowed Nebraska to sustain water levels—or at least slow depletion—in the Ogallala Aquifer better than most other High Plains states. Despite their success, however, the aquifer in Nebraska is still continuously depleting, and annual allocations to farmers have been steadily decreasing.

 

Addressing Depletion at the Federal Level

Interstate compacts—created and enforced through federal law—have played a critical role in driving state efforts to curtail groundwater use. For example, part of the reason Nebraska has taken such a tough stance on groundwater pumping is because of their obligations to Kansas under the Republic River Compact. The Compact apportions Colorado, Nebraska, and Kansas each a supply of “virgin water” that is undepleted by human activity from the Republican River Basin, which is primarily drained by the Republican River and its tributaries. Much of the water from the Basin passes through Nebraska before entering Kansas via the Republican River, and Nebraska must limit water consumption to comply with the state’s obligations to Kansas under the Compact. As the Ogallala aquifer feeds into the Republican River, Nebraska has had to limit its use of the aquifer to comply with the Compact, which has resulted in a more sustainable use of the aquifer but also lowers crop yields for farmers.

The federal government itself has addressed the issue of the depleting Ogallala by instituting the Ogallala Aquifer Initiative. The Initiative works by providing technical and financial assistance to farmers and ranchers to implement conservation practices that use less water, improve water quality, and keep croplands productive. The Initiative benefits agricultural producers by cutting costs for water, cutting costs for energy to power irrigation systems, and increasing crop yields. Extending the life of the aquifer also benefits the public at large, as the public directly benefits from irrigation with Ogallala water.

In New Mexico, circumstances are more critical, prompting the federal government to take a more drastic approach. In eastern New Mexico specifically, the Ogallala aquifer has depleted to the point of crisis. To make matters worse, alternative sources of water in the area are primarily located along the border with Texas, where oil and gas development dominates water use. For its part, New Mexico has started reviewing hydrological information before renewing or approving new access to drill wells that involve using Ogallala water. The federal government has also stepped in, investing in a pipeline project called the Ute pipeline, which has recently required an additional investment of five million dollars. The project is designed to eventually bring billions of gallons of drinking water to eastern New Mexico from nearby Ute Lake.

 

Conclusion

The Governor of Kansas, after seeing the success of the one and only LEMA group in the state, has recently declared that Kansas has been producing real results towards water conservation and that Kansas’s status as a breadbasket for the nation has been secured. However, it is important to remember to contextualize this success; it is only one group in an area less than one hundred square miles, meaning that the Ogallala is far from saved. And while there is value in allowing farmers to voluntarily take the reins in conserving the Ogallala, it is clear that they are not jumping at the opportunity to do so. The farmers themselves have commented that it is going to take a whole change of culture in the region to see the results that the Kansas legislature envisioned from the LEMA program—an uphill battle that certainly will not happen overnight. Nebraska is at least seeing some more substantial results from their hardline policies, which may be the direction the High Plains states need to take to avoid a major crisis. While the Ogallala may not be able to be completely saved at this point, it is certainly worth preserving for as long as possible, and states should not hold back in using their enforcement powers to do so.

Jeremy Frankel

Image: A storm rolls over a field of summer wheat on the High Plains in Kansas. Wikipedia user James Watkins, Creative Commons.

Sources

Brian Jacobs et al., A Vanishing Aquifer, Nat’l Geographic (Aug. 2016), http://www.nationalgeographic.com/magazine/2016/08/vanishing-aquifer-interactive-map.

Edwin Gutentag et al., U.S. Geological Survey, Geohydrology of the High Plains Aquifer in Parts of Colorado, Kansas, Nebraska, New Mexico, Oklahoma, South Dakota, Texas, and Wyoming (1984).

Effort to Manage Ogallala Aquifer Irrigation Falls Flat, Ag Web, https://www.agweb.com/article/effort-to-manage-ogallala-aquifer-irrigation-falls-flat.

Governor issues statement on attainability of sustainable yield from Ogallala Aquifer, HAYS POST (July 20, 2017), https://www.hayspost.com/2017/07/20/governor-issues-statement-on-attainability-of-sustainable-yield-from-ogallala-aquifer.

High Plains Aquifer Groundwater Levels Continue to Decline, U.S. Geological Surv. (June 2017), https://www.usgs.gov/news/usgs-high-plains-aquifer-groundwater-levels-continue-decline.

High Plains Water-Level Monitoring Study, U.S. Geological Surv., https://ne.water.usgs.gov/ogw/hpwlms.

Hill v. State, 894 N.W.2d 208 (Neb. 2017)

Jane Little, The Ogallala Aquifer: Saving a Vital U.S. Water Source, Scientific Am. (March 1, 2009), https://www.scientificamerican.com/article/the-ogallala-aquifer.

Joshua Perkin et al., Groundwater Declines Are Linked To Changes in Great Plains Stream Fish Assemblage (B.L. Turner ed. 2017).

Kan. Admin. Regs. § 5-20-1 (2017).

Karen Dillon, Ogallala water continues to pour onto farm fields despite decades of dire forecasts, Lawrence J.-World (Sept. 27, 2014), http://www2.ljworld.com/news/2014/sep/27/ogallala-water-continues-pore-farm-fields-despite.

Mary Guiden, Groundwater pumping drying up Great Plains streams, driving fish extinctions, Colo. State U. (July 2017), https://source.colostate.edu/groundwater-pumping-drying-great-plains-streams-driving-fish-extinctions. 

Ogallala Aquifer, Tex. Water Development Board, http://www.twdb.texas.gov/groundwater/aquifer/majors/ogallala.asp.

Ogallala Aquifer Intiative, U.S.D.A., https://www.nrcs.usda.gov/wps/portal/nrcs/detailfull/national/programs/initiatives/?cid=stelprdb1048809.

Rex Buchanan et al., The High Plains Aquifer (2015).

Susan Bryan, Effort to Bring Water to Eastern New Mexico Inches Along, U.S. News (July 14, 2017), https://www.usnews.com/news/best-states/new-mexico/articles/2017-07-14/effort-to-bring-water-to-eastern-new-mexico-inches-along.

U.S.D.A., Groundwater Irrigation and Water Withdrawals: The Ogallala Aquifer Initiative (2013).

Virginia McGuire, Water-Level and Recoverable Water in Storage Changes High Plains Aquifer (2017).