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Water Shortages Run Risk of Dividing States Using Colorado River

Aug. 20, 2021, 10:01 AM

Diminishing water supplies in the Colorado River Basin have led the basin’s seven states to adopt a “we’re all in this together” approach as they deal with climate change, intense drought, and increasing growth.

But water officials wonder whether states will now act in their own self-interest, worsening tensions and sparking conflicts between the lower and upper basin.

Fueling those concerns are the water reductions announced Aug. 16 by the Bureau of Reclamation, and the likelihood of deeper cuts in the near future for a basin that supplies water to about 40 million people.

“There’s always been a little ruffling of feathers” between the lower states of Arizona, California, and Nevada and the upper states of Colorado, New Mexico, Utah, and Wyoming, said Andy Mueller, general manager of the Colorado River District in Glenwood Springs, Colo. “And that could get more severe as we move forward in the drought.”

Avoiding Litigation?

Outside of the West, interstate legal battles already are brewing over groundwater. Scholars say water cases will pile up at the U.S. Supreme Court—which ruled for Georgia earlier this year in a dispute with Florida—as climate change stresses water resources.

But the cooperation among Colorado River states of the last few years is unlikely to be replaced by court battles, at least for now, predicted Wes Strickland, partner in the Austin and Los Angeles offices of Holland & Knight.

“In terms of going to full battle, litigation means you’re throwing your fate to the court, and most of the time parties in water would rather be the master of their own fate than to give it to the court or the Secretary of Interior to work out,” Strickland said.

The seven states of the basin have cooperated with one another through negotiation under the Law of the River, a series of laws, regulations, treaties, compacts, and legal decisions governing administration and resolution of disputes involving the stressed waterway.

As the West grapples with water shortages, “states are going to protect their own interests and look out for their own citizens, and have different views on allocations and what is responsible development,” said attorney Emily Lewis, co-chair of the natural resources and water law practice group at Clyde Snow & Sessions P.C. in Salt Lake City.

But the states understand the stakes, Lewis said. “Conflict requires a lot of energy, and you could wind up with a situation where nobody wins and everybody loses,” she said.

More Projects

Historically, divergent water policies and approaches have marked the relationship between the upper basin — where the most of the water comes from — and the lower basin, where most of it is used.

Critics of the upper basin states point to the more than 25 proposed projects that would divert water out of the river instead of pursuing more aggressive conservation and water efficiency programs.

One of the largest, and most contentious, would involve a 140-mile buried pipeline to draw about 28 billion gallons of water from Lake Powell and transport it across the desert to 10 communities in the southwestern part of Utah.

“This is an opportunity to build resilience, such as forest management and finding ways for folks to use less water, not for building new projects like the Lake Powell Pipeline,” said Bart Miller, healthy rivers program director for Western Resource Advocates, an environmental group in Boulder.

The lower basin states have been criticized for using more than they’re allocated under the Colorado River Compact of 1922, which sets aside 7.5 million acre-feet per year for each of the basins.

“The upper basin could say to the lower, ‘You all have been overusing water for a long time; maybe pointing to our additional water use is not the best place to start this conversation,’” said John Fleck, director of the University of New Mexico’s Water Resources Program.

Demand Management

The upper basin also has been slow to move on one of its priorities from the 2019 Drought Contingency Plans forged by the seven states and later approved by Congress and signed by President Donald Trump.

That priority was development of a “demand management” program to pay users to forgo water they’re entitled, and instead sending it downstream to Lake Powell as a kind of insurance policy to help meet the basin’s compact obligations.

The upper basin states need to pick up the pace, said Ted Kowalski, who leads the Walton Family Foundation’s Colorado River initiative.

“The upper basin has been talking about demand management for more than two years—they need to stop talking and start doing,” he said, adding that some have begun to jokingly refer to the Colorado Water Conservation Board as the “Water Conversation Board.”

To contact the reporter on this story: Tripp Baltz in Denver at abaltz@bloomberglaw.com

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

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