New plans for old dams?

Rivers across the West are managed by large dams, many of them built and operated by federal agencies.  Most of those dams were built in the middle third of the 20th Century, during a period when Congress seemingly believed that the answer to nearly any water problem was a new dam.  By the time the “big dam era” came to an end around 1980, the government had built well over a thousand dams nationally.  Congress authorized each dam to serve particular purposes:  water supply (especially for irrigation) was the primary purpose of most Bureau of Reclamation dams, whereas flood control was the main mission of most Corps of Engineers dams.  Both agencies would eventually build many “multi-purpose” facilities, serving purposes such as hydropower generation, reservoir recreation, and downstream flow regulation.

Most federal dams are now at least 40 years old, and the West has changed a lot since they were new, in several ways that should influence water management.  For example, water demands have changed with population growth and economic shifts; science has improved our understanding of the impacts of dam operations; and environmental and recreational amenities have grown in importance in many parts of the region.  In addition, climate change is already raising temperatures, changing the form and timing of precipitation, and altering historically “normal” runoff patterns.  All of these changes seem likely to continue as we move deeper into the 21st Century, and all of them have implications for the operation of federal dams in the West.

Neither of the major federal dam-operating agencies, however, has a program of reviewing and revising the operating plans for its reservoirs.  While the Corps’ rules on “water control manuals” call for reviewing them every ten years, and the Bureau has launched a “reservoir operations pilot initiative” to evaluate potential changes at a few select projects, neither has made a practice of reviewing its established operating plans.  Congress has shown increasing interest in this issue, however, pushing the agencies (especially the Corps) to move ahead with operating plan reviews.  For my part, I have made the case for both the Corps and the Bureau to review the long-term operating plans for their projects, considering a range of alternatives and engaging the public in the process.   (Before clicking the link on my forthcoming article — reviewingresopspdf — be warned that the piece is long, even by the standards of committed water wonks.)

The good news is that one major federal dam, the Bureau’s Glen Canyon Dam on the Colorado River, will soon have a new operating plan.  Glen Canyon was built in the 1960s as a major storage project for the Colorado River Basin; it also generates lots of hydropower and forms the popular Lake Powell.  But downstream impacts of dam operations led Congress to pass the Grand Canyon Protection Act in 1992, and the Bureau followed with a new operating plan for Glen Canyon Dam that reduced some of those impacts.  The new Long-Term Experimental and Management Plan (LTEMP) updates that earlier plan, and incorporates science that has developed over the past two decades.  But it certainly does not re-purpose Glen Canyon Dam; to the contrary, LTEMP must remain consistent with two interstate compacts, multiple statutes, a treaty with Mexico, a major Supreme Court case, a series of administrative decisions on dam operations, etc.

In developing the LTEMP, the Bureau and the National Park Service worked with over a dozen cooperating agencies, and considered a wide range of potential effects of various operating scenarios.  I cannot say whether the final LTEMP the agencies selected represents the best possible plan for operating Glen Canyon Dam, in light of all the values and interests involved.  What I like about LTEMP is that the federal government engaged scientists, stakeholders, and the interested public; considered a range of alternative operating regimes; tested how those alternatives would perform in over a dozen different categories; and selected the alternative that the agencies regarded as the best overall for the environment.  As the West continues to change, the federal government should undertake this kind of review for more of its old water projects, helping ensure that 20th century dams can adapt to 21st century needs.

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Dam good news on environmental flows

Given its track record of dam construction in the 20th Century, the Army Corps of Engineers may seem an unlikely source of good news for rivers.  The Corps ultimately built nearly 700 dams across the nation, including some major ones in the West.  (The chapter in Cadillac Desert describing the Corps’ competition with the Bureau of Reclamation to build dams in the western states is titled “Rivals in Crime.”)  Although flood control is the main purpose of Corps dams generally, they also generate hydropower, support navigation, and provide flatwater recreation, among other things.  There is also growing interest in Corps reservoirs (not only in the West) as potential sources of water supply.

Dams can harm rivers in many ways, so it is not surprising that the Corps has a reputation for riparian destruction.  Starting in the 1980s, however, Congress began giving the Corps authority and direction for environmental restoration efforts; today, the Corps clearly wants to be known as an agency that does good things for aquatic ecosystems.  Among other things, the Corps maintains an Environmental Advisory Board (EAB), composed mostly of scientists from universities across the country.  The efforts of the EAB led to the Corps making a decision that looks like good new for rivers below Corps dams.

The EAB wrote to the commanding officer of the Corps in 2014, recommending that the Corps “initiate environmental flows from as many of its dams as possible.”  The letter described environmental flows as “releases from dams and their reservoirs to create downstream river flows that create the conditions needed to sustain freshwater ecosystems.”  It also recommended that the Corps take three specific actions toward providing environmental flow releases from more dams.  The letter was backed by an eight-page report that explained the EAB’s rationale and recommendations in greater detail.

Nineteen months elapsed … but when the response came in a November 2015 letter, it was positive.  The Corps largely accepted the EAB’s recommendations, and identified steps the agency would take (or was already taking) to carry them out.  While much of the letter covers bureaucratic details, the opening two paragraphs address the big picture:

[T]he Corps is increasingly being asked to assess how the Nation’s rivers and waters might be managed differently to provide more environmental benefits, while concurrently providing for navigation, flood risk management, hydropower, recreation, and water supply.  Further, the Corps is under pressure to complete work with shorter schedules and less funding, and when our largest and most expensive environmental efforts are driven by litigation and endangered species.

It is precisely at these times that we need to aggressively and proactively pursue ideas like implementation of environmental flows, which have high environmental potential for relatively low costs.

Thus, the Corps not only views environmental flows as a practical way to improve rivers, but also sees real value in having the agency’s environmental restoration efforts not be driven entirely by the requirements of the Endangered Species Act.

Since the Corps made this statement less than a year ago, much remains to be seen about its implementation.  Will the Corps proceed to revise its operating practices to provide environmental flows on more rivers?  That will be an especially important question in the West, where flows often fall below environmental needs, but water supply concerns are typically paramount, and most state water laws and institutions give low priority to environmental flows.  So while rivers across the country will be waiting to see what the Corps does, for now it deserves credit for what it says about environmental flows.

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The federal under-reach on water

OK, so it’s been a while.  It appears my last post was in July 2015.  I would like to say I was out of contact that whole time–maybe a 57-week river trip–but I don’t have an excuse nearly that good.  I did spend a fine four months in Alberta (at the University of Lethbridge), learning about water law and policy issues in a part of Canada that shares many water management challenges with the western U.S.  And I have been spending a LOT of time thinking about reservoir operations in both countries; I will be writing more on that topic in this space, and if all goes well, it won’t take me another 13 months to do it.

One of the more notable moments of my past year was testifying before Congress.  In what has become something of an annual event, the House Water, Power and Oceans Subcommittee (of the Natural Resources Committee) held a hearing to criticize a few different federal agencies for their actions regarding water in the West.  The Subcommittee didn’t actually call any federal witnesses; instead, it invited testimony from local officials who were unhappy with some aspect of federal policy.  I spoke at the invitation of the Minority side of the Subcommittee, just as I did at a remarkably similar hearing in 2013.

For the Subcommittee majority and its witnesses, a common theme of both hearings was that the Obama Administration is “overreaching” on water issues in the West.  In their view, the feds are basically abusing their power, exceeding their authority over water at the expense of the states who rightfully have it, and trampling on the rights and interests of local entities and private users.  They have pointed to a variety of actions taken by federal agencies from EPA to the Forest Service, insisting that federal bureaucrats are running amok.  I must admit that I haven’t found their arguments convincing, but then, I don’t see “overreach” every time a federal agency involved in water takes an action that wasn’t requested by a state or a user.

My concern, in fact, has been the opposite: agencies often don’t fully use the authority they have to address environmental concerns or protect other public interests in water.  This is true of government agencies at all levels, not just federal ones, although much of my writing has focused on the feds — primarily the Bureau of Reclamation.  For a variety of legal, political, and institutional reasons, agencies involved in water have generally been more concerned with maintaining existing practices regarding water supply, flood control, and hydropower than with advancing environmental or recreational interests.  There have certainly been exceptions to that general rule, but many of them have basically been forced by the application of the Endangered Species Act.

In my Subcommittee testimony this year —  HouseWPtestimony16 — I argued that Reclamation could and should do more under its existing authorities.  I identified three more-or-less specific steps it could take under current law, including the SECURE Water Act and the Drought Relief Act.  The agency is indeed taking some positive measures, including a “Reservoir Operations Pilot Initiative” to assess potential revisions to the operating documents for its projects.  It is still early days for this initiative, but it could eventually result in Reclamation being somewhat more flexible and forward-looking in how it operates its reservoirs.  That would be a positive and important move, because climate is not the only thing in the West that is changing, and there is more to environmental restoration than endangered species.

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Does the California drought have lessons for the “real” West?

The relentless, punishing California drought has gained a lot of attention from politicians and the media, as the Golden State struggles to deal with a set of problems that only get worse as the warm, dry conditions persist. The State of California has been forced to take unprecedented regulatory actions in an effort to reduce water use, more or less across the board: surface and ground water, agricultural and urban uses. Drought elsewhere in the West has gotten less attention, partly because other western states are not quite as dry (although Nevada and the Northwest are in tough shape), and partly because they are not California. But given that California is often seen as very different from the other states, is California’s experience with drought relevant for the rest of the West? In the big picture, it clearly is.

One interesting result of the drought is that it has raised questions about two fundamental factors– agriculture’s share of statewide water use, and state water law based on prior appropriation–that are hugely important but often seen as fundamentally immovable. The questions are not new, and while they have always been part of the academic literature on western water policy, they have typically had limited relevance in official decision-making about water in the West. But the length and severity of the current drought have more Californians questioning why irrigated farming (even of high-value crops) should take up about 80% of California’s water use, and why their famously forward-looking state continues to divide water among competing uses based primarily on how old those uses are, with the oldest taking priority. As climate change promises to make California generally warmer and drier, these questions grow in importance.

Water users and officials in other western states might be tempted to discount California’s experience, arguing that California is different from the “real West.” They might point to California’s enormous population–roughly 1 in every 8 Americans, very different from the Interior West. They might insist that California water law is different in some ways from that of other western states, and there are indeed some notable differences. And they might argue, also with some validity, that the federal government plays a more important role in California than in the other western states, especially in operating the Central Valley Project and applying the Endangered Species Act. And politically, of course, Rocky Mountain and Great Plains states are more conservative than California, which is left of the “real West” in more ways than one.

I acknowledge all those differences, but I think recent events in California offer some relevant big-picture lessons for the rest of the West, because our basic water challenges are more like California’s than many people would care to admit. Irrigation also accounts for about 80% of the water use, if not more, in most western states. As in California, the water laws of other states give users water rights that last forever, that offer no incentives to use less, that take priority in times of shortage if they are older than other rights, and that are not readily moved to new places or uses. Other states, like California, have fully allocated most of their surface water sources, and allowed groundwater pumping that some aquifers cannot sustain. Many other western states have been growing fast for decades, as California has. Major federal water projects, and water-dependent endangered fish species, are found in every western state. And the entire region should expect to get warmer, and the southern half especially to get generally drier, if climate change plays out as predicted across the West.

California’s water situation is unique in some important ways, and I am not suggesting that recent events in that state will soon repeat themselves in the other states. What I am suggesting is that the “real West” has many of California’s basic problems regarding the allocation, supply, use, and management of water resources, and that these problems figure to get increasingly serious as we get deeper into the 21st Century. The current drought, commonly viewed as the worst in the state’s history, has forced California to dig deeper for solutions than it ever has before. Every western state should expect that coming years will bring droughts longer, drier, and warmer than any living person has seen. Some states are engaging in planning efforts, seeking to prepare for future water supply challenges. As states and stakeholders across the West look ahead, the California drought frames a key question: if we dry up like never before, how can ensure enough water for our most important human, economic, and environmental needs?

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The Washington Post finds the message in the rain barrel

I was quoted this week in a Washington Post GovBeat blog story about a bill in the Colorado legislature that would legalize, on a limited basis, homeowners using rain barrels to catch the water that runs off their roofs. (See below for directions on finding the story online.) What made this little issue worthy of a national news outlet like the Post? What intrigued reporter Jeff Guo was not so much that Colorado was considering a change in law, but what the ongoing ban on residential rain barrels said about how the West manages water. His story, and my quotes, focus largely on the fundamentals and the flaws of water law in the western states. And Colorado, like a few other states, has language in its Constitution that specifies a particular system of water law: prior appropriation.

The best-known feature of prior appropriation is “first in time, first in right”–the principle that gives priority to water rights based on how early they were established. This first-come, first-served principle is not only used to allocate water among would-be users, but also to regulate water use in times of shortage; thus, under what Guo called “the dibsies approach to water management,” junior users may get no water at all in times of drought, while senior users get every drop their rights allow. And because most of the big water users in the early West were farmers irrigating their crops, most of the top-priority rights in the West are agricultural–one reason why roughly 80 percent of the region’s water use is for farm and ranch irrigation. In some states, including Colorado, the percentage is even higher.

Prior appropriation is famous for favoring the oldest water uses, but there are other ways in which it tends to lock in the status quo. First, water rights are quantified based on how much is “beneficially used” for the purpose of the right, which has always encouraged users to take and apply as much water as possible; using less could diminish the quantity and value of the water right. Second, these rights are a species of property, and so long as the water remains actively in use, they last forever. Thus, prior appropriation is a system whereby the western states have allocated water to private users, under a system that recognizes perpetual rights, and affirmatively discourages conservation. And because water rights are ordinarily restricted to the particular places and uses for which they were established, any changes require state approval–a process that can be controversial, expensive, and uncertain. This backward-looking approach to water management poses serious problems in a region that is changing fast, and in many ways.

What does this have to do with rain barrels? Colorado, which has long been influential in western water law, practices a uniquely pure form of prior appropriation that scrupulously protects senior water rights. And senior water users understandably are concerned about any change in the law that might lead to a reduction in their water supplies. Enough homeowners collecting rainwater in barrels, and using it to water their gardens, could lead to less water getting to streams and aquifers that supply water to these users. Under this view, home rain barrels are basically petty theft of water that belongs to someone else–which explains why irrigators might not like them, and legislators might hesitate to legalize them. (Some might suggest that water users should be more concerned about the impacts of climate change on their future water supplies, but that is another story.)

Guo also quoted Arizona’s Robert Glennon–who is famous for a law professor, having once appeared on The Daily Show–as saying that prior appropriation is “deeply embedded in Western water law. We academics criticize it, but it’s not going anywhere.” That is certainly true, and I observed in the story that the fact that home rain barrels remain controversial in the 21st century shows “how well-entrenched that old tenacious legal system is.” The good news is that states have shown that they are sometimes willing to adjust prior appropriation to serve important policy goals; one example is that most states passed laws allowing for “instream flow” water rights that were not recognized by old-school prior appropriation. A key question is whether states will further revise their laws to improve flexibility, promote conservation, and provide for important environmental and recreational water needs. The Colorado legislation is worth watching, mostly because its fate will say something about whether states are willing to change their laws to tackle the West’s major water problems … which are far bigger than any rain barrel.

(To find the story, search “govbeat guo march 24” — the headline is “It is actually illegal in Colorado to collect the rain that falls on your home.” Sorry I was unable to provide a working link to it here!)

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Water and money: the Supreme Court on remedies in interstate water cases

Last week, the U.S. Supreme Court issued its decision in Kansas v. Nebraska, a dispute over the waters of the Republican River. The Republican flows from Nebraska into Kansas, and for most of the last 17 years the two states have been fighting over whether Nebraska is taking more than its legal share of the water. (Kind of fitting, I think, that these two red states are squabbling over whether they are getting enough of the Republican.) By the time this case reached the Supreme Court, the parties had accepted that Nebraska took too much water in 2005-06; the key issues were about remedies for Nebraska’s excessive use, and what the Court said on those issues is potentially important for future interstate water cases.

First, a bit of context. This case dealt with the Republican River Compact, an interstate agreement involving Kansas, Nebraska, and Colorado (where the river originates). Interstate compacts are negotiated deals by which two or more states agree on the allocation or management of a water body that they share. There are more than two dozen such compacts, mostly in the West, and each one is unique. Under the U.S. Constitution, however, no compact can take effect until Congress has ratified it, making it the law of the land. Thus, every compact is both a contract and a federal law; in the new Supreme Court decision, Justice Kagan’s majority opinion tends to emphasize the “federal law” aspect of the compact, while Justice Thomas’ dissent stresses the “contract” aspect. Compacts are typically enforced in cases before the Supreme Court, and often there are intense legal and technical disputes over whether a compact has been violated. The new opinion does not address such “liability” questions–but its reference to the Court’s “capacity to prevent one state from taking advantage of another” might suggest that where a compact is unclear, the Court will interpret it based partly on the Court’s sense of what is fair to all the affected states.

Nebraska and Kansas had settled an earlier lawsuit over the compact in 2002, agreeing on a complex technical methodology for quantifying Nebraska’s obligations to Kansas and determining whether they were being met. The day of reckoning for the upstream state arrived in 2005-06, which was a drought period in that area. Nebraska delivered about 70,000 acre-feet less than it should have, and when the case reached the Supreme Court the parties had accepted that number, and also Kansas’ resulting losses of $3.7 million. Nebraska agreed to pay that amount, but Kansas asked for further relief in the form of additional payments and an injunction that would impose future obligations on Nebraska. The Supreme Court held that further relief was appropriate, largely because Nebraska–which has always been very reluctant to regulate pumping–had to know that its efforts to reduce water use were too little and too late to achieve compliance by 2005-06. The Court concluded that “Nebraska recklessly gambled with Kansas’s rights, consciously disregarding a substantial probability that its action would deprive Kansas of the water to which it was entitled.”

The Court agreed that Nebraska should have to pay more than Kansas’ losses of $3.7 million, in part because Nebraska had made far more money than that by keeping the extra water for itself. The Court noted that “the higher value of water on Nebraska’s farmland than on Kansas’s means that Nebraska can take water that under the Compact should go to Kansas, pay Kansas actual damages, and still come out ahead.” Unwilling to leave those incentives in place, the Court ordered Nebraska to pay an additional $1.8 million, despite a conclusion that Nebraska’s benefit was probably far greater than that. Three justices dissented on that remedy, arguing that the Court should not have ordered the extra payment at all. But all nine justices rejected the other relief that Kansas requested: an injunction governing Nebraska’s future conduct. On this point the Court said little, but it concluded that there was adequate assurance of Nebraska complying in the future, now that the state had imposed stronger legal controls on pumping.

What does this case (which involved additional issues that I haven’t addressed here) mean for other ongoing or potential disputes over compliance with an interstate water compact? I see three key lessons. First, the Court expects states to “take the medicine” by restricting or reducing their water uses as needed to meet their compact obligations, even when the medicine tastes bad to the states and their water users (and even in times of drought). Second, the Court will use its broad and flexible remedial powers to discourage states from taking the easy way out of these disputes, i.e., allowing ongoing overuse of water and simply paying compensation. Third, injunctive relief will be hard to get even when a state has knowingly violated a compact, as the Court is far more comfortable ordering payments to address violations. And because the Court ordered Nebraska to pay only part of the money it made from using too much, the new decision may not be enough to convince other states that they should take expensive, unpopular steps to reach compliance.

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What the CRomnibus says about water policy in Congress

Earlier this month, Congress passed and the President signed a huge, wide-ranging bill to fund the federal government for the rest of Fiscal Year 2015. At a little over $1 trillion, the so-called CRomnibus spends a ton of money, and at more than 1600 pages, it uses a ton of words. Daunting as they are, spending bills like this one are important not only for the money they spend, but also for substantive “riders,” which have become relatively more important as Congress has found it increasingly hard to pass any meaningful legislation. Against my better judgment, I went looking for the part of the CRomnibus that funds the Bureau of Reclamation and the Army Corps of Engineers, knowing that it would contain some potentially interesting (for me at least) water policy provisions.

The Corps of Engineers section (pp. 431-445) is where the real money is, because while the Corps’ roughly $5 billion budget is modest by Pentagon standards, it dwarfs that of Reclamation. A few items from the Corps section are interesting from a policy standpoint. It directs the Corps to begin the study process for 10 potential new projects (“new starts”), of which 7 must be primarily transportation or flood control projects, and 3 must be primarily environmental restoration projects. (This kind of Congressional direction to emphasize the agency’s traditional mission ensures that the Army Corps of Engineers does not drift further into eco-radicalism.) On the regulatory side, the bill blocks the Corps from taking certain actions to toughen regulations under Clean Water Act section 404, and orders the Corps (and EPA) to withdraw guidance interpreting section 404 which had drawn objections from farm groups and some states. Regarding western rivers, the bill denies any funding for a ecosystem restoration study of the Missouri River system authorized by Congress in 2007, but allows (without actually providing) up to an additional $18.4 million for studies of measures to improve the survival of salmon populations in the Columbia River Basin.

The Reclamation section (pp. 446-455) delivers less money–about $1 billion–and less policy direction, but a few of the substantive provisions are noteworthy. One allows (without actually providing) up to an additional $100 million for the Bureau’s program of grants and cooperative agreements under the SECURE Water Act; these grants can help fund water conservation projects, ecosystem restoration efforts intended to benefit rare species, and other activities. A second provision revives (but authorizes no additional money to implement) expired portions of the Reclamation States Emergency Drought Relief Act, which as I noted in my 2012 DoubleWhammy article, has important authorities that Reclamation could use to help western rivers and water users endure droughts. The final section allows the Bureau to “fund or participate in pilot projects to increase Colorado River System water in Lake Mead” and Upper Basin federal reservoirs “to address the effects of historic drought conditions.” This authority allows Reclamation to provide grants for certain non-federal projects, or for renewing or implementing existing “water conservation agreements.”

What do these provisions suggest regarding Congress and water policy, especially for the West? I draw two lessons from the CRomnibus. First, the recently departed Congress believed that it was still necessary and appropriate to invest federal dollars in solving water-related problems, as shown by the “new starts” direction to the Corps, the new authorization for SECURE Water Act grants, and the authority for Colorado River Basin pilot projects. Second, some in Congress sought to block certain of the Administration’s environmental initiatives, and saw the must-pass spending bill as the best way to do it; this view is reflected in the Corps provisions on the Missouri and section 404, but perhaps most dramatically by a more famous provision (p. 725) barring the Fish & Wildlife Service from listing certain sage grouse populations under the Endangered Species Act.

But, of course, the CRomnibus was the last major action of the infamously divided and unproductive 113th Congress. What about the 114th, which will see both houses return to Republican control? I think it’s very safe to say that the second theme of the CRomnibus–blocking environmental efforts that the GOP opposes–will be a major focus of water policy in the next Congress. As for the first theme–federal action and investment directed toward resolving the biggest and most serious water problems–the immediate future is far less clear. The majority in the next Congress generally sees the federal government as the problem, not the solution, and that’s especially true when it comes to water in the West. Will the new Congress still believe in directing federal agencies and dollars to help address the region’s most important and urgent water problems? We shall see.

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Western water law and policy: ready for resilience?

I recently had the pleasure of speaking at a conference hosted by the Utton Transboundary Resources Center at the UNM School of Law in Albuquerque.  The conference theme was “Water Resilience in a Time of Uncertainty,” and presentations addressed the need for laws, policies, and processes that can help the West prepare for coming changes that will place increasing stress on our water resources.  The focus was on ways to make our water allocation, management, and governance regimes more resilient, so that the region will suffer less harm from the effects of climate change, among other things.

I spoke on “Resilience and the Law” along with Dan Tarlock of Chicago-Kent law school–one of the great gurus of water and environmental law–and our moderator was Melinda Harm Benson, a professor of Geography & Environmental Studies at UNM.  We discussed the question of western water law in relation to the concept of resilience, focusing primarily on the foundational doctrine of prior appropriation, and asking if it helped or hindered the pursuit of resilience.  Our brief remarks focused less on the letter of the law than on how it has been applied over time, and while I primarily addressed practices in New Mexico, I think my remarks are more or less relevant in other parts of the West.

Since I am certainly no expert on resilience thinking, II emphasized a quote from a recent article by two authors who are, Melinda Benson and Robin Craig:  “[A] resilience approach would reorient current research and policy efforts toward coping with change instead of increasingly futile efforts to maintain existing states of being.”  In my view, a top priority of western water policy–especially in New Mexico–has been maintaining existing states of being.  Having allocated as much water as possible to some “beneficial use,” New Mexico and other states now mostly protect the water use status quo, even where changes would be legally sound, economically preferable, and environmentally beneficial.

New Mexico, especially, seems to have defined success in water policy for several decades based on a few key principles:  make sure water is put to use, prevent established water uses from being restricted, and limit the role of government in water management.  These principles are reflected in some basic facts of New Mexico’s water management:  the state remains mostly unadjudicated, largely because these proceedings are stubbornly and incredibly slow; it has almost never administered water rights by priority, despite the language of the state constitution; and it largely avoids the subject of water conservation in the agricultural sector, even though irrigation accounts for the vast majority of the state’s water usage.  These practices have been criticized, but if the goal is to keep government from messing with existing water uses, every one has been a big success.

Like some other states in the West, New Mexico’s constitution provides for water rights based on prior appropriation, but also declares that water belongs to the public.  For many years state water law and policy have been geared toward protecting private rights to water–that is, ensuring that private water rights are secured and protected from any interference.  In the future, however, New Mexico and other states will need to take a broader view, emphasizing management of a public resource for the long-term good of the entire state.  That would be a fundamental shift in focus for water law and policy, and I see it as necessary for building resilience to meet the enormous challenges of the future.

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Water rights for whitewater boating? Colorado says yes

It has been nearly two months since my last post on westernriverlaw. In that time I managed to finish a new article–more on that next time–and completed a few other more-or-less scholarly tasks. I also had the pleasure of speaking at the Natural Resources Law Teachers Lunch at the Annual Institute of the Rocky Mountain Mineral Law Foundation. And in preparation for that talk, I did some very important and relevant research while seated in my kayak, investigating the whitewater parks in several Colorado towns.

What allows me to claim whitewater kayaking as research? Because Colorado water law specifically provides that cities or local governments can obtain a special type of water right for whitewater kayak courses. Such rights were originally recognized as legitimate appropriations by the Colorado water courts, and are now authorized by statute. The law, which gives these rights the clunky name of Recreational In-Channel Diversions (RICDs), allows water to be appropriated for these courses as needed to provide a “reasonable recreation experience” … as if anyone ever goes kayaking to have a “reasonable” time on the river.

These whitewater courses are designed by engineers and constructed to provide whitewater features–waves and holes–that provide varying degrees of action at a range of flow levels. They provide more-or-less safe and reliable fun on the river, and more than two dozen of them have been built in cities and towns across Colorado, mostly in the high country. The courses are not unique to that state–they can be found on rivers in other western states, and even in Canada–but only Colorado specifically allows them to obtain water rights for recreational river flows.

How did Colorado–a state that takes its water law very, very seriously–come to recognize RICDs for kayak courses? Its Supreme Court laid the foundation in a 1992 case, in which it held that the City of Fort Collins could get a water right for wildlife and recreational purposes on the Poudre River as it flowed through town. The City was not making a conventional diversion of water, and opponents argued that the City was effectively seeking an instream flow appropriation, which in Colorado may only be obtained by a state agency. But the court held that Fort Collins was using structures in the river to control flows for recognized beneficial uses, making for a legitimate appropriation of water. Later, other Colorado cities–starting with Golden–relied on this precedent to obtain very large appropriations of water for kayak courses, successfully arguing that whitewater parks were economically important community amenities. Critics of these appropriations sought to have them outlawed by statute, but the Legislature refused to do so, codifying RICDs while imposing certain conditions and restrictions on these special water rights.

It is probably fitting that Colorado, with an economy that relies heavily on outdoor recreation, would be the first state to recognize water rights for this purpose. Whitewater rafting and kayaking are important summer economic activities in that state, especially in Western Slope towns that seek to attract visitors outside of ski season. For my part, I enjoyed whitewater parks on four different Colorado rivers this summer (the Animas, San Juan, Eagle, and Arkansas), and along the way I managed to drop a few coins in the local hotels, restaurants, and pubs. My research confirms that the whitewater parks in Durango, Pagosa Springs, Avon, and Salida do indeed provide a “reasonable recreation experience,” at least for this kayaker. And I may have to go back next summer, just to make sure they still do.

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Court takes Texas off the hook for whooping crane deaths

The 5th Circuit Court of Appeals decided a major case this week involving water management and the Endangered Species Act. The Court ruled that the water management agency of the State of Texas was not liable for “take” of endangered whooping cranes on the drought-stricken Aransas National Wildlife Refuge in the winter of 2008-09. The appeals court’s decision in The Aransas Project v. Shaw reversed a landmark victory for the environmental plaintiffs in the trial court.

The case involved several factual and legal disputes, but the ultimate issue was whether Texas, in permitting and managing water uses under state law, had caused the deaths of endangered whooping cranes and therefore violated the ESA. The lower court found that 23 cranes had died on the refuge during the 2008-09 winter, that their deaths were caused by habitat declines caused by low water levels in the Guadalupe Estuary (San Antonio Bay), and that Texas could have used its powers under state water law to prevent such low water levels. Thus, even though Texas itself was not the water user, it had violated the ESA prohibition on “take” of listed species. The court ordered Texas to seek an “incidental take permit,” by which the ESA allows limited harm to listed species caused by otherwise-lawful actions, but also provides certain protections for species and their habitats.

On appeal, the case turned on the issue of causation, and the 5th Circuit held that the lower court had gotten it all wrong. While it upheld the trial court’s disputed finding that 23 cranes had died on the refuge, the appeals court found that the causal chain between Texas’ actions and the dead cranes was too attenuated, and the harm was not reasonably foreseeable. The court saw a “number of contingencies affecting the chain of causation from licensing to crane deaths … all outside the state’s control and often outside human control,” including the actions of water users and the vagaries of weather. The court summarized its reasoning on p. 31 by stating, “Finding proximate cause and imposing liability on the State defendants in the face of multiple, natural, independent, unpredictable and interrelated forces affecting the cranes’ estuary environment goes too far.”

The 5th Circuit’s decision may be disappointing for those who care about rivers and wildlife. But it is not all that surprising. Not only is the 5th Circuit Court of Appeals widely regarded as quite conservative (much like the states it covers: Louisiana, Mississippi, and Texas), but it had already put a hold (or stay) on the lower court’s order during the appeal process. In addition, the new decision could have been worse as precedent for future ESA cases involving water use. Notably, the 5th Circuit reached the merits of the case by rejecting some of Texas’ arguments, including one that the federal courts should “abstain” and leave the entire dispute to be decided by the State.

Does the Aransas Project decision mean that state water officials have nothing to fear from the ESA? No, although suits against a state for violating the “take” prohibition will probably always be legally and factually difficult to win. But a case involving, say, a fish kill caused by river dewatering, directly caused by water diversions that the state arguably had legal authority to restrict or prevent, would present a different case. That would be especially true if the fish kill were not a one-time event (as the 5th Circuit saw the 2008-09 crane deaths), and if the case were brought outside the 5th Circuit. But for now, it appears that the “take” prohibition will continue to have limited effect in the water management context, leaving the job of protecting listed species and their river habitats to federal agencies subject to ESA section 7.

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