The Green River

While the Green River, which runs through Utah, Wyoming, and Colorado, is only a tributary of the Colorado River, it has still become a major source of debate and controversy among the three states’ residents and lawmakers.  The Green River starts in the Wind River Mountains in Wyoming and then winds 730 miles downward toward the ocean running through places such as the Browns Park and Dinosaur National Monument.  Many people from all over the nation love the Green River because it carved out some of America’s most iconic canyons and is seen as one of the most beautiful waterways in the nation.  The river is also valued as home to several threatened and endangered species, including the bonytail and humpback chub, the razorback sucker, and the Colorado pikeminnow.

 

Background

Recently, serious debate unfolded over the fate of the Green River and Colorado’s ever increasing water deficit.  A new study from the U.S. Department of the Interior, Bureau of Reclamation indicates Colorado will have at least a nine percent decline in water flow by 2050.  The study projected significant impacts on fish and fishing as well as negative impacts on other recreation.  White water rafting, which brings in at least $4.2 million a year for local businesses, would be impacted particularly hard.  While Colorado has allowed more than it is legally required to flow downstream, other states are already violating the 1922 Compact for the Lower Water Basin by taking more than their legal share of water from the river.  Many politicians and water developers have put forward different ideas in recent years to deal with the water deficit, but one of the most controversial plans is constructing a pipeline to take water from the Green River.

 

Flaming Gorge Pipeline

The pipeline, proposed by Aaron Million, is known as the Flaming Gorge pipeline.  The proposal calls for a 500 mile water pipeline to pump eighty-one billion gallons of water per year out of the Green River in Wyoming for use in Colorado, which amounts to approximately twenty to thirty percent of the river’s annual flow.  At this time, the pipeline would cost between seven and nine billion dollars without including any costs to deal with the massive environmental impacts the pipeline would cause.  The State of Colorado’s Water Conservation Board (“CWCB”) initiated a preliminary study on the pipeline, but the CWCB denied additional funding in January of 2013 for a subsequent, more intensive study.

The pipeline creates several concerns, one of which is how likely Utah and Wyoming will let the project go unchallenged despite the significant potential impact on their states.   Additionally, the pipeline lacks substantial popular support in any of the three states it directly impacts.  In fact, surveys of Colorado residents show that seventy-six percent of residents prefer a solution for the state’s water issues that focuses on using existing water more efficiently rather than building a pipeline.  American Rivers, a non-profit seeking protection of the United States’ rivers and streams, listed the Green River as the second most endangered river in a 2012 national study, mostly because of the proposed Flaming Gorge pipeline.

 

Recent Developments

In the face of the recent Bureau of Reclamation study and urgings from the public to look at conservation measures, the CWCB’s decision to stop funding the second study of Flaming Gorge pipeline may forecast trouble for the project.  Some even see abandonment of the study as an implied rejection of the project.  In the next few months, Colorado lawmakers will set a future course for the state’s water usage, which will impact generations of residents.  Any measure these lawmakers choose will also set a tone for the rest of the region on dealing with this increasingly desperate water situation.  Hopefully, Colorado chooses to set a tone of interstate cooperation that places conservation and smart water use above more environmentally questional proposals.


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Heading Photo Copyright Don Cload and licensed for reuse under the Creative Commons Licence


Background

The Colorado River Basin (“the Basin”) spans parts of seven western states: Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming.  The Basin currently provides water to around 40 million people and 4 million acres of irrigated agricultural land, making it one of most important watersheds in the western United States.  Beginning in January of 2010 and lasting for three years, the Department of the Interior funded a supply and demand study of water use in the Basin through the Bureau of Reclamation and its WaterSMART program.  Completed in December 2012, the published full report of the Colorado River Basin Water Supply and Demand Study (“Study”) can be found in the links provided below.

 

The Study

The Study evaluated future imbalances in the watershed over the next 50 years, up to year 2060.  The Study, however, did not result in any decision on how exactly the future imbalances will be addressed.  Performed in four phases, the Study (1) assessed the water supply of the watershed; (2) assessed the demands for water within the basin; (3) analyzed the reliability of the computer models; and (4) developed and evaluated strategies to decrease the imbalance. The Study found the average imbalance between supply and demand for water would be more than 3.2 million acre-feet.  Most of this imbalance is due to an increase in demand from municipal and industrial users because of an estimated doubling of the population within the Basin.  The study estimated that by 2060 the population could be approximately 76.5 million people.

 

It is important to note that any future water supply and demand scenarios predicted within the watershed are highly uncertain because an infinite number of possibilities exist.  While no study will be exact, the Bureau of Reclamation analyzed four different scenarios for both supply and demand.  On the supply side, four scenarios exist: (1) an Observed Resample scenario that looked at water tends over the past 100 years; (2) a Paleo Resampled scenario that looked at water trends over the past 1,250 years; (3) a Paleo Conditioned scenario that looked at water trends over the past 1,250 years but conditioned on the water values observed over the past 100 years; and (4) a Downscaled GCM Projected scenario estimating that the climate will continue to warm substantially over the next few decades.  This last scenario estimated that the natural water flow within the basin will decrease by approximately 9% over the next 50 years.  On the demand side, four scenarios also exist: (1) a Current Projected Growth model; (2) a Slow Growth model; (3) a Rapid Growth model; and (4) an Enhanced Environment Growth model accounting for enhanced environmental stewardship.  All the scenarios were then run in different combinations through the Colorado River Simulation System in RiverWare software, obtaining a range of potential future system conditions.

 

The Study next evaluated more than 150 options and strategies on how to resolve imbalances in the watershed.  The options and strategies can be generally organized into four groups.  The first group included options that increase water supply such as reuse, desalination, and importation.  The second group included options that reduce water demand from both M&L and agricultural conservation.  The third group included options that modify operations such as transfers & exchanges and water banking.  Finally the last group included options that focus on governance and implementation of water such as stakeholder committees, population control, and reallocation.

 

Finally, the Study listed ten general areas of options and strategies seeking to resolve water imbalances that are realistic to implement within the watershed: water conservation and reuse; water banks; watershed management; augmentation; water transfers; tribal water; environmental flows; data and tool development; climate science research; and partnerships.  The Bureau of Reclamation closed public comments on the Colorado River Basin Water Supply and Demand Study on April 19, 2013, and all comments will be summarized and considered in planning activities.

 

Brief Comments on the Study

The best solution laid out in the Study is water conservation.  Because irrigated agriculture is responsible for approximately 70% of watershed water use, conservation is this sphere could result in significant savings.  Effective conservation can also occur in cities by reducing water use in outdoor landscapes because half of all city water use is involved in such endeavors.  With desalination technology rapidly evolving, it could become another very attractive option.  Desalination projects do occur in other countries, but the energy cost and cost of recovery are still very high.


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Magna Water Co. v. Strawberry Water Users Ass’n, 285 P.3d 1 (Utah Ct. App. 2012) (holding that objectors, Magna Water Company and South Farm LLC, lacked constitutional standing to challenge a proposed determination by the Utah State Engineer.  However, objectors had alternative standing to challenge the recommendation which allowed for the recapture and reuse of water once return flows commingled with natural water drainage).

Under the Strawberry Valley Project, water is imported, as part of a federal reclamation project, into the Utah Lake Basin and Jordan River from the Uintah Basin, in the Colorado River drainage.  The imported water is subsequently used and administered by the Strawberry Water Users Associations and Strawberry Highline Canal Company (collectively “SWUA”) to fulfill federal contracts with the United States Bureau of Reclamation.  After the imported water’s use, some of the water returns to the Utah Lake-Jordan River hydrological system through surface runoff or groundwater seepage.  In an effort to ensure the reuse of such water, SWUA petitioned the district court to establish its right to use the return flows.  The district court ordered the Utah State Engineer to prepare a recommendation for how to proceed with the return flow issue.  The State Engineer proposed that the return flow could be recaptured and reused by SWUA even after the imported water had commingled with the natural drainage water in the Utah Lake-Jordan River system.

Following the State Engineer’s proposal, Magna Water Company and South Farm, LLC (collectively, “Objectors”) filed an objection in the Third District Court of Utah (“district court”), stating the proposal would adversely affect their water rights and interests, because their water rights would be subject to reduced diversions during drought years and they would incur considerable expenses to defend their rights.  The district court dismissed Objectors claims because they did not have standing for the following reasons: (i) Objectors’ ground water rights were “up-gradient” from the Jordan River, and were not connected to or affected by water levels in Utah Lake or the Jordan River; (ii) Objectors did not have a legally protected interest in the controversy; (iii) Objectors were not appropriate parties because they were not interested or positioned to effectively assist the court; (iv) the issues raised by the State Engineer’s proposal were likely to be raised by other parties with a stake in the matter; (v) Ownership of stock in Utah Lake-Jordan River water companies did not confer standing; and (vi) Objectors did not present evidence to support a finding that they would have suffered a distinct and particularized injury based on the proposal.

Upon appeal, the Utah Court of Appeals held that the district court properly found that Objectors did not have constitutional standing.  Objectors again claimed that, as a result of the proposal, they would be subject to reduced diversions under their water rights during drought years and that they would have to spend considerable resources to defend their water rights against inaccurate return flow calculations.  However, the Court of Appeals agreed with the district court and found that Objectors’ water rights were “up-gradient” from the Jordan River and were in no way affected by water levels in Utah Lake.  In addition, the court determined that there was no hydrological connection between Objectors’ water rights and the Utah Lake-Jordan River system.  As such, the court held that Objectors’ claims did not show a particularized injury, as required to establish constitutional standing.  Furthermore, the court determined that Objectors did not show that a reasonable probability of future injury existed.

Conversely, the Court of Appeals reversed the district court’s determination that Objectors also lacked alternative standing, or standing based on an appropriate party raising issues of significant public importance.  To establish alternative standing, the Court of Appeals found: (i) Objectors were an appropriate party; and (ii) the issues raised were of sufficient public importance to warrant standing.  The court held that Objectors were an appropriate party to the litigation because they had an interest necessary to aid the court in reviewing all relevant and factual issues.  This interest stemmed from the fact that Objectors were water rights holders interested in preserving water resources and ensuring compliance with state laws and regulations.  Moreover, the court found that Objector’s were an appropriate party because no other objections had been filed regarding the State Engineer’s proposal.  As such, the court held that no other party with a stake in the matter was likely to raise the issue, contrary to the district court’s finding.  The Court of Appeals also determined that the issue was of sufficient public importance to warrant standing, in part because no court in the state had determined whether imported water could be recaptured and reused in the manner recommended by the State Engineer.  Ultimately, the court held that the dispute would resolve a novel issue in the state and that the resolution had the potential to impact a significant portion of the community.  Because Objectors were an appropriate party and because the public had an interest in having the issue litigated, the court held that Objectors established alternative standing.

Consequently, after affirming the district court’s determination that Objectors lacked constitutional standing, the court reversed the district court, and found that Objectors had alternative standing to challenge the State Engineer’s recommendation.  The court then remanded the case for further proceedings.