Water cuts aimed at farmers amid the West’s megadrought have set the stage for bitter legal and political fights over one of the most overlooked water uses—the right of water to remain in streams to sustain fish and endangered species, lawyers say.
The drought is poised to call that right into question, pitting drinking water providers and food growers against conservationists who want to keep streams wet so that fish can survive.
“When the choice is between drinking water for a community and water for flora and fauna, I think that’s where we’ll see conflict begin,” said Fred Breedlove, a water rights lawyer and counsel at Snell & Wilmer LLP in Phoenix.
The Interior Department’s Bureau of Reclamation this week announced a first-ever water shortage in the Colorado River Basin that is expected to force Arizona farmers to cut their water use and eventually force further cuts across all seven states in the basin.
The declaration has “major implications for the stream flow and the health of rivers and streams around the basin,” said Leon Szeptycki, a University of Virginia law professor and former executive director of Water in the West at the Stanford University Woods Institute for the Environment.
First to Lose
As the West dries up, flows set aside for the environment are likely to be the first to lose, said Buzz Thompson, a water lawyer and of counsel at O’Melveny & Meyers LLP.
“As a result, you see environmental groups and others who favor in-stream flows working to try to accord environmental water the same degree of security as other water,” he said.
Water left in rivers is important not only for the survival of endangered fish and other species, but also for recreation, Szeptycki said.
The megadrought’s effect on streamflows aren’t limited to the Colorado River Basin. Already this year, salmon runs are drying up in California and Oregon, and keeping them wet will require a greater sacrifice from people who use the water upstream for human uses, Szeptycki said.
Historically, water rights for streams weren’t considered legitimate under the West’s water rights legal framework—known as the system of prior appropriation—because water in a river was considered to have no beneficial use.
That started to change in the 1970s, when some states began recognizing water rights for rivers, known as in-stream flow rights, or environmental rights.
Today, each Western state allocates water for streams differently. Colorado and Oregon have a clear legal framework for establishing and transferring in-stream water rights, but Nevada, Arizona and New Mexico lack such a framework, said Szeptycki, who co-authored a state-by-state legal analysis on environmental water rights in 2015.
Idaho gives in-stream flow rights a lesser status compared to other water uses, he said.
But even in states with a clear legal framework and system for keeping water in rivers, the river can still lose out.
“In Colorado, those rights tend to be fairly junior, so you have irrigation rights that tend to be much more senior so they can take that water even if you have an in-stream flow water right,” said Mely Whiting, senior counsel for Trout Unlimited, which advocates for streamwater rights.
In-stream flow rights often are considered to have no economic value, and are among the first to be curtailed in a water shortage, said Riley Snow, a water rights attorney working in Arizona and Utah.
“An in-stream right can only survive if it is not impairing more senior water right users,” Snow said in an email. “Such impairments become more likely as water becomes more scarce.”
In Colorado—the headwaters of the Colorado River Basin—some groups have found that the best way to ensure streams remain wet amid water shortages is by finding more ways to share water between different uses, said Andy Schultheiss, executive director of the Colorado Water Trust.
The trust is a nonprofit dedicated to keeping Colorado’s streams flowing by acquiring senior water rights to run the water in rivers using the state’s unique legal framework for in-stream flow rights. The group helps to “develop smooth water markets that can produce water savings that remains in streams, as well as supporting agricultural production,” Schultheiss said.
In the meantime, the trust is advocating for strategically releasing water into streams from reservoirs when streams are running dangerously low in drought, he said.
But often, the biggest tool conservationists have to keep water in rivers is the Endangered Species Act. Water users usually go out of their way to avoid legal entanglements involving it, Schultheiss said.
Even so, conflict remains a possibility.
When a listed species is found in a river that’s drying up, the federal government steps in and mandates that water remain in the river, “and that provokes a legal conflict over water,” Szeptycki said.
And so litigation over in-stream water rights looms.
“If the drought continues for the long-term, I think what we are going to see is increased competition for a finite resource and thus potential litigation over the legitimacy of some of those in-stream flow rights,” Breedlove said.