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Cascading Climate Calamities Target West’s Water, Legal System

March 1, 2022, 11:00 AM

A dire United Nations climate change report confirms what water lawyers in the West have known for a long time—that drought is becoming the norm in the region, and adaptation is essential.

“Every time we see it written down, it gets a little more real,” said William Caile, a water lawyer who is of counsel at Holland & Hart LLP in Denver, referring to the report’s forecasts of water scarcity.

The report, released Monday by the Intergovernmental Panel on Climate Change (IPCC), is a 3,675-page deep-dive into what the latest scientific research says about what’s at risk as fossil fuels continue to warm the planet. Water scarcity amid rising air and streamwater temperatures will afflict much of North America, exacerbating biological diversity losses, agricultural productivity decline, and wildfire, the report found.

The Southwest is among the regions that the IPCC says will soon be profoundly different. The Colorado River, which provides water to 40 million people from Denver to Los Angeles, courses through the increasingly arid Southwest, which is approaching a “tipping point” at which long-term water scarcity conflict with high water use and farming, the report concludes.

Just last year, the Bureau of Reclamation declared a first-ever water shortage on the Colorado River. That region has been baking in extreme heat and drought for 20 years, with signs pointing only to even more dire water scarcity.

The IPCC report is a “wake-up call,” and “climate change is killing humanity,” tweeted Rep. Jared Huffman (D-Calif.), who chairs a House Natural Resources Committee panel on water.

Legal Challenges

The Southwest’s ability to adapt to climate change may be limited by complex legal and administrative battles over the Colorado River and ultimately by the depletion of groundwater and river flows throughout the Southwest, the report says.

“The report shows how clearly how our western U.S. water management institutions, developed in the 19th and 20th centuries, are ill-suited to the challenges posed by climate change,” said John Fleck, director of the University of New Mexico’s Water Resources Program.

“Laws, for example, that presume we can pump groundwater to make up for short term surface water shortfalls no longer work when the surface water shortfall is permanent,” Fleck said. “You can already see that struggle playing out now with California’s efforts to rein in overpumping of groundwater.”

Farmers in California’s Central Valley have been relying too heavily on groundwater amid streamwater scarcity, leading to the land sinking beneath the farm fields and increasing the threat of arsenic contamination in the water.

The report shows that the ravages of climate change are foreseeable and people should be preparing for a be preparing for a “profoundly different” world, said Michael Gerrard, founder of the Sabin Center for Climate Change Law at Columbia University.

“The challenges to the legal system (and every other system) are profound, and we are not on a trajectory to meet them. Very far from it,” Gerrard said in an email.

Reusing wastewater is among the measures many Western cities are considering to adapt to long-term water scarcity—something that water lawyers and attorneys across the country are fitting within an existing legal framework.

Caile said he’s bullish on the ability of existing legal structures, such as the Colorado River Compact, to handle the crisis. The compact, which was written nearly a century ago in a time of water abundance and determines how the river’s water is allocated among Western states, could be poised for a revamp, he said.

In the West, the competing pressures of increased drought, which leads to dry-year water shortages, and explosive growth act “like a vise,” Caile said.

Water Protection Battles

The report’s vision of an arid future for the West is likely to fuel the Biden administration’s efforts to include a wide array of waters and wetlands under the Clean Water Act protections as waters of the U.S., or WOTUS, said Kevin Desharnais, a water lawyer at Dickinson Wright PLLC in Chicago.

Many of the West’s streams that the Clean Water Act protects are ephemeral, or only run part of the year because they’re in a desert. A Trump-era definition of federally-protected waters, which a court tossed out last year, excluded these waterways, effectively lifting safeguards on numerous streams in arid states such as New Mexico.

“This issue is particularly important in the Southwest, where a significant portion of the waters may be ephemeral or intermittent waters that may not be within the scope of WOTUS,” Desharnais said.

The U.S. Supreme Court will hear a case later this year about WOTUS and the scope of the Clean Water Act at the same time the Biden administration is considering two different rules defining that scope.

“The IPCC report may be cited as supporting the need for a broad interpretation of WOTUS” due to water shortages, Desharnias said.

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com