April 27, 2015

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Regional Water Shortage A Problem Without Solution

This article was originally published by Law Week Colorado in their April 27, 2015 issue. Click here to view this article as a PDF.

By Tony Flesor

At the most basic level, the West's water woes — drought in California, below-average snowfall in Colorado and fire danger everywhere in between — are a simple problem of supply and demand. 

The laws and agreements dictating water usage for the Colorado River and other main water sources have the waterways over-appropriated. With current interstate agreements, not enough water can get where it's supposed to or where it needs to. The result is a handful of Western states stretching what they're allocated and looking to get more. Colorado, which is upriver of other states relying on the Colorado River, has the benefit of being first in line, but the state's growing population has some policymakers and attorneys looking for new ways to stay liquid.

The Colorado River is a source of much of the water in the region and a source for many problems. Water from the river is delegated to seven states according to the Colorado River Compact, established in 1922.

The compact had states agreeing to receive quantities of water that have not been borne out over time, said Adam DeVoe, of counsel at Lewis Roca Rothgerber. With higher water levels and lower populations, the states agreed to get more water than actually exists.

Problems have persisted for the past 30 years, and there is no resolution in sight, DeVoe said.

"How do we continue to divvy up the water in a system where everyone was promised more water than actually exists," he said.

Most water law is based on the concept of first in time, first in right. States at the bottom of the system keep using whatever water they can get, but population and drought projections show that there won't be enough water sent down the river to be used.

The laws and agreements that dictate the Colorado River's usage are "incredibly complicated," Brian Nazarenus, shareholder at Ryley Carlock, said. But the large issue is simple supply and demand.

The two water basins that control the flow of water for the states are being used to implement demand reductions because of the lack of supply.

Nazarenus said the "30,000-foot answer" for current water shortages comes from the Secretary of the Interior pushing the effected states to reduce their water demand in order to increase the water supplies for Lake Powell and Lake Mead, the two major reservoirs that provide water for the Colorado River states. And ideally, this will postpone any interstate conflicts over the Colorado River water.

The current agreement keeping states in check, the Colorado River Compact, has been supplemented with other agreements in recent years to reduce the demand and keep the two river basins working in conjunction so that both will continue to receive the water they need.

A recent demand management agreement should keep the states from entering into litigation with each other, Nazarenus said.

The Colorado River is so complicated that with so many states and so many federal statutes and users that "nobody wants to have that blow up into litigation," he said.

Although litigation seems unlikely, tensions do flare up. In December, Colorado Water Conservation Board director James Eklund gained notoriety for saying California's drought doesn't mean Colorado will "roll over" and share the water our state was going to use.

DeVoe said he believes that was more of a warning than a threat, though. "It was never intended to be an aggressive posture that we're threatening to cut off the supply," he said. "It's more of a reality check that at some point, we're going to use up our allocation."

The agreement should be changed to reflect reality, he said.

But according to Nazarenus, before it gets to the point where California has to ask for water from Colorado, the more likely reality is having to address the needs in Las Vegas. Currently, the city demands more water than it is allocated because nobody anticipated the future size of the desert city when the agreements were made.

"That was a demand that wasn't contemplated when the compact was made nearly 100 years ago," Nazarenus said. The demand management agreement should postpone Las Vegas' problems, though, but that mostly depends on how effective the agreement turns out to be and how much the final snowmelt turns out to be upriver.

Demands close to home 
We can't grow the next generation of Coloradans like the last generation, according to Eklund. In an interview between him and Lewis Roca Rothgerber special counsel David McGimpsey on McGimpsey's podcast, The Water Values, Eklund said the state needs to be more efficient in its usage.

For immediate changes, Eklund's proposed Colorado Water Plan looks to come up with a specific system for accounting for and appropriating water in Colorado — something that ideally would work for urban areas as well as mountain towns.

The idea is to "see that train coming down the tracks" and plan for it now, McGimpsey said.

Part of that efficiency comes from the state's proposed water plan for sharing water around the state, but McGimpsey said it also comes from infrastructure choices. Part of the Colorado's problem is its continued population growth and sprawl. It's a natural conclusion that more people in the state means more water use.

But how the people settle into the state affects how much more water is needed. McGimpsey said we know growth is coming, so it's important for the state and developers to promote the right kinds of growth, like increasing population density. Condos and multifamily developments are more water efficient, and even single family homes that are in denser areas use less water.

Solving the water needs of a growing city is not a new problem, though. In the 1980s, the Denver Water Board had plans to build the Two Forks Dam, which would have supplied the Denver metro area's growing suburbs, but the plan was vetoed by the Environmental Protection Agency.

For the long-term, Nazarenus said, the only realistic plan is to continue the use of agricultural transfers — swapping water allocation from agricultural to municipal use.

However, DeVoe said there needs to be more water storage built in Colorado, especially on the Front Range. We don't have sufficient storage, and over drought cycles, we won't have water in reserve in reservoirs, he said.

"It's not a popular decision to say we have to build reservoirs," he said.

Water law experts, such as DeVoe, Nazarenus and McGimpsey all look to different solutions, but all agree that something is needed to stretch the existing water resources.