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‘No Winners’ Seen if States Launch Water War Amid Megadrought

Aug. 18, 2022, 9:30 AM

The seven states using Colorado River water likely will avoid an epic legal showdown over the most severe water cuts amid the region’s megadrought—but legal analysts say California, Nevada, and Arizona in particular will face heavy burdens to conserve.

The need to cut water use is so urgent that there’s not enough time to wait for a legal showdown to play out. If the dispute sparks litigation, it’s likely to originate at the Supreme Court—the typical venue for interstate water conflicts—and take years or even decades to resolve.

“None of the states relish the prospect of major litigation, which would be phenomenally expensive and take a very long time, likely ending in the Supreme Court with no guarantee of final resolution there,” said Robert Adler, an emeritus water law professor at the University of Utah.

The states “seem to understand that there will be no winners if they decide to seek judicial relief,” said Mark Squillace, a natural resources law professor at the University of Colorado Law School. “A court battle would be long and expensive, and, I suspect, ultimately unsatisfying because the Colorado River is simply not producing enough water to satisfy current needs.”

Outside of the West, interstate legal battles already have been brewing over groundwater. Scholars have predicted water cases will pile up at the Supreme Court—which ruled for Georgia last year in a dispute with Florida—as climate change stresses water resources.

But the Colorado River states have expressed an “aversion to judicial proceedings,” and decided in 2000 to try avoiding litigation at nearly all costs as they saw the megadrought looming, said Jason Robinson, a law professor at the University of Wyoming.

A Big Ask

The Bureau of Reclamation in June asked the seven states in the basin—California, Arizona, and Nevada in the Lower Basin, and Utah, New Mexico, Colorado and Wyoming in the Upper Basin—to come up with a long-term plan by mid-August to cut water use. The states, however, are at an impasse.

The Biden administration on Tuesday called for the states to conserve up to 4.2 million acre-feet of water from the river annually through 2026 to ensure enough can serve the region. That is inflaming tensions between states in the Upper Basin, where the Rocky Mountains are the source of the water, and the Lower Basin, where most of population who relies on the river water lives.

The Colorado River provides water for 40 million people from Denver to Los Angeles, but the region is 23 years into a megadrought, radically reducing river flows and drying up the largest reservoirs in the country. The basin’s two reservoirs, lakes Mead and Powell, are at a combined 28% of capacity.

The bureau is pushing states to come to a consensus on conservation, Commissioner Camille Touton said.

Painful Cuts Ahead

Adler said he’s optimistic the states will strike a deal. But, he said, it will be painful.

The 1922 Colorado River Compact allocates up to 16 million acre-feet of water to be used throughout the basin, but because of climate change over the last century, much less flows in the river.

Cutting 4 million acre-feet of water “is a huge amount of water,” and because the Upper Basin states have never fully used their Colorado River allocations under the compact, the main conservation burden may fall to California, Arizona, and Nevada, Adler said.

“The Lower Basin states might face significant growth limitations from reductions of that magnitude,” Adler said.

The Bureau of Reclamation plays a key role in brokering a water conservation deal among the states, which might include helping states provide incentives to farmers to use less thirsty crops and regulate water waste, Squillace said.

States and the bureau also need to reckon with Mexico’s water needs and those of 30 tribes within the basin that own water rights, some of which haven’t been adjudicated yet.

For example, water rights for the Navajo Nation haven’t been fully adjudicated and may be the biggest unknown about future water consumption within the Colorado River Basin, Adler said.

Coming to the Table

Peter Fleming, general counsel for the Colorado River Water Conservation District in western Colorado, said the basin has been running low on water for decades, and it’s up to the regions with the most water users to do the most cutting. California was excluded from the Reclamation cuts announced Tuesday.

“Folks in the Upper Basin are saying we’ll come to the table,” he said. “There will be additional conservation in the Upper Basin and some firm pledges, but it isn’t going to happen until the Lower Basin, because of the vast disparity in the consumptive uses—until the Lower Basin says we’ve got a deal and here’s how much water we’re going to conserve.”

Indeed, John Entsminger, general manager of the Southern Nevada Water Authority, issued a statement Tuesday saying the biggest conservation burden falls on his side of the basin—downstream of Lake Mead where most of the river’s water is consumed.

Adler said the water shortage calls for a fundamental rethinking of how water is used throughout the Southwest.

“But the water managers in the basin states are not all accustomed to radical changes in thinking,” he said.

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

To contact the editor responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com