The Shoshone hydro plant in Glenwood Canyon, captured here in June 2018, uses water diverted from the Colorado River to make power, and it controls a key water right on the Western Slope. Source: Brent Gardner-Smith/Aspen Journalism
ByLindsay Fendt
It has been a rough year for operations at the Shoshone hydropower plant in Glenwood Canyon.
First, ice jammed the plant’s spillway in February, damaging equipment that required repair. The plant came back online in July but was able to generate electricity for only a few weeks before the Grizzly Peak Fire burned down its transmission lines.
According to the plant’s owner, Xcel Energy, the electricity impacts of the outages at the 15-megawatt generating station have been minimal, and the utility expects the plant to go back online this week. But while the electric grid can manage without the plant, the outage presents a much bigger threat to the flows on the Colorado River because the plant has senior water rights dating to 1902.
This means that any water users upstream with junior rights — which includes utilities such as Denver Water that divert water to the Front Range — have to leave enough water in the river to meet the plant’s water right of 1,250 cubic feet per second when the plant is running. When the Shoshone makes a call, the water makes its way through the plant’s turbines and goes downstream, filling what would otherwise often be a nearly dry section of river down toward Grand Junction.
A Shoshone call keeps the river flowing past the point where it would otherwise be diverted, supporting downstream water uses that would otherwise be impossible on this stretch of river. But when the plant is down, as it has been for most of 2020, that call is not guaranteed.
“Historically, what the Shoshone plant has done is kept a steady baseflow, which makes it easier for irrigators down here to be able to divert their own water right,” said Kirsten Kurath, a lawyer for the Grand Valley Water Users Association, which represents agricultural water users. “When the river goes up and down, it takes a lot of operational effort.”
The Shoshone water right also supports important nonconsumptive water uses. It provides critical flows needed for fish habitat and supports a robust whitewater-rafting industry in Glenwood Canyon. When the river drops too much below 1,250 cfs, it can create for a slow and bumpy ride.
“Customers get off and think, ‘Ugh, it would have been more fun to go to Disneyland,’ ” said David Costlow, the executive director of the Colorado River Outfitters Association. “Much lower and you are really scraping down that river and at some point you just pull the plug.”
The nearly year-long outages at Shoshone have many on the river worried. When the plant is down for repairs or maintenance, it does not make its call on the river allowing users upstream — including those that pipe water to the Front Range — to begin diverting. The Shoshone call can be the difference between the water remaining on the Western Slope or being diverted to the Front Range. Long outages, such as this one, reveal the vulnerability of the water on which so many rely.
“It’s a critically important component to the way that the Colorado main stem water regime has developed over more than a century now,” said Peter Fleming, the general counsel for the Colorado River Water Conservation District. “It’s sort of the linchpin or the bottom card.”
Water interests on the Western Slope have made some headway in recent years to maintain the status quo on the river even when Shoshone is down. Most of the major junior water-rights holders upstream of the plant — including Denver Water, Aurora and the Colorado Big Thompson Project — have signed on to the Shoshone Outage Protocol (SHOP). When the protocol goes into effect, as it has this year, these diverters have agreed to manage their diversions as if the Shoshone Plant — and the call — was online.
The agreement has been in operation for about a decade, helping to maintain flows during periods where the plant has undergone repairs or maintenance. The agreement was formalized in 2016 with a 40-year term. While the outage protocol has staved off major drops in the Colorado River flow over the years, the agreement is not as secure as water users that rely on Shoshone’s flows would prefer.
“SHOP is the best alternative that we have right now, but it doesn’t completely restore the flows,” said Kurath. “And one of the other problems right now is that it’s not permanent.”
For water users downstream of Shoshone, SHOP has three major issues. First, it is only guaranteed for 40 years, which for water planners is considered a short time frame. Second, the agreement does not include every upstream diverter, meaning that it doesn’t completely restore the flows to the levels where they would be if the Shoshone plant were on. Third, the agreement allows some of its signatories to ignore SHOP under certain water-shortage scenarios.
Despite the drought this year, the conditions never reached a point where SHOP’s signatories were able to opt out of the protocol, so the agreement went into effect when river levels dropped. But even though SHOP worked this year, the long outages at the Shoshone plant highlight the uncertainty of the plant’s future.
“We’ve always been nervous about it,” Fleming said. “It’s an aging facility, it doesn’t produce a ton of power, and we don’t know how long it’s going to be a priority to maintain and operate.”
The River District has been working to negotiate a more permanent solution for the Shoshone water rights for years. They have considered everything — from trying to buy the Shoshone plant outright to negotiating with diverters on the river to make something such as SHOP permanent.
The Shoshone outages have given these efforts renewed importance. In a recent board meeting of the River District, Fleming said that resuming talks with Denver Water that had stalled during the pandemic is a top priority.
While Fleming would not elaborate on the specifics of the ongoing negotiations, all options have the potential to impact many water users on the river — even those who aren’t at the negotiating table.
“We don’t approach this like we have water rights that we don’t have,” Costlow said. “But our business depends on water, and it depends on water levels that make water fun.”
This story ran in the Nov. 13 edition of The Aspen Times and was originally published on Aspen Journalism on November 13, 2020.
This story was supported by The Water Desk using funding from the Walton Family Foundation.
Here at the confluence of the Big Thompson and South Platte rivers near Greeley, a new conservation effort is underway. It restores wetlands and creates mitigation credits that developers can buy to meet their obligations under the federal Clean Water Act to offset any damage to rivers and wetlands they have caused. Credit: Westervelt Ecological Services
Developers often dropped by unannounced at the Allely farm to ask if the family would consider selling their 70-acre property south of Greeley at the confluence of the Big Thompson and South Platte rivers. The answer was always no — the Allelys did not want their land, which had been in the family since in the early 1960s, to be developed, now or in the future.
So when staff from Westervelt Ecological Services first approached the Allelys about creating a habitat preservation program on their farm roughly three years ago, the family was skeptical. But over the course of many months and long conversations, they began to warm to the idea and eventually agreed.
Instead of selling their property to the highest bidder or leaving it to the next generation, the family established a conservation easement — a permanent agreement to never develop the land — and, for a fee, allowed Westervelt to create the new Big Thompson confluence mitigation bank. The project broke ground in late October.
Now, a developer who disrupts wetlands or streams elsewhere along the Front Range and in parts of eastern Colorado can offset that impact by buying credits generated from floodplain and ecosystem restoration work completed on the Allelys’ land. Purchasing credits from this new mitigation bank allows developers to meet their obligations under the federal Clean Water Act.
“It’s a very important piece of property to us as a family,” said Zach Allely, the fifth-oldest of the six children who grew up on the farm. “If there’s an opportunity for us to say, ‘No, this is a place where native fauna, native flora can thrive forever,’ we’ll take that.”
Mitigation banks, explained
Mitigation banks are not new in Colorado — there are some 21 pending, approved, sold-out or suspended throughout the state, according to the U.S. Army Corps of Engineers’ database — but this is the first new mitigation bank approved on the Front Range in 20 years.
Across the country, mitigation banks have become more popular since 2008, when the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers expressed a preference for mitigation banks (over other types of mitigation) and offered clearer guidance, standards and timelines for these projects.
Mitigation banks like this one are a byproduct of the federal Clean Water Act, first enacted in 1948 as the Federal Water Pollution Control Act and then expanded and reorganized in 1972. More specifically, they relate to Section 404 of the act, which aims to protect the country’s wetlands from the discharge of dredged or fill materials during the construction of dams, levees, highways, airports and other development projects.
Under Section 404, developers must take steps to avoid and minimize damage to wetlands and streams by adjusting the scope, location, design and type of project they wish to undertake. After avoidance and minimization, they must turn to a third mitigation type: compensatory mitigation.
Under compensatory mitigation, developers can restore, establish, enhance or preserve wetlands at the project site or somewhere else nearby. But this type of work isn’t always practical or possible, which is where mitigation banks come into play. Instead of going to all that trouble, a developer can pay for someone else to do the heavy lifting at a different, nearby location.
A mitigation banker, in this case Westervelt, pays for the upfront costs of finding a suitable piece of land, gaining approval from the right regulatory agencies, and doing the actual mitigation work. Then, depending on the scope and size of the project, the banker can sell a certain number of credits to offset the impacts of future development within the bank’s general vicinity.
Restoring historical floodplain
Today, crews are hard at work on the Allely property, re-establishing the historical floodplain to help restore the ecosystem for plants and animals and improve flood resiliency for nearby communities.
This restoration work also creates 34.76 wetland credits and 460 stream credits — released in phases — that developers, public agencies, mining companies and others can buy to help mitigate the unavoidable damage their projects will cause to other Colorado wetlands and streams.
Lucy Harrington, the Rocky Mountain region director for Westervelt Ecological Services, declined to say how much the company is charging for credits from the new 72.4-acre bank, citing variable pricing and bulk discounts.
But the Colorado Department of Transportation, which regularly buys credits from mitigation banks across the state, recently paid $200,000 for a credit from the new bank to help offset the impact of its Central 70 highway improvement project, said Becky Pierce, CDOT’s wetlands program manager.
To find potential mitigation bank sites, Westervelt staffers perform geographic information system (GIS) analyses that take into account a property’s proximity to streams, hydrology, oil and gas infrastructure, and proximity to other conserved properties, among other factors, Harrington said.
The company, which opened its newest regional office in Centennial in 2016, also looks at community-identified areas for wetland restoration and conservation, as was the case with the new Big Thompson confluence bank. Westervelt staff worked with the Middle South Platte River Alliance to understand local priorities and identify possible sites for the new bank. The alliance helped introduce Westervelt to the Allely family.
“It’s really a confluence of technical work, relationship-building and a little bit of luck, to be perfectly honest,” Harrington said.
Westervelt and other mitigation bankers often buy property outright. But in this case, Westervelt paid the Allely family an undisclosed amount to use their land for the mitigation bank and, in return, the Allelys protected the property in perpetuity with a conservation easement, which comes with its own tax benefits and incentives. Westervelt and the Allelys also established a long-term endowment for the site’s management with the National Fish and Wildlife Foundation.
After creating a detailed plan and getting approval from regulatory agencies like the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, Colorado Parks and Wildlife and others, Westervelt began work.
Credits going fast
The company has released its first round of credits, which includes 8.69 wetland acres and 115 functional feet of stream credits. So far, the company has sold more than half of the wetland credits, Harrington said.
“Any project, whether it’s a highway widening that may cross a river, home development that may affect ephemeral or perennial drainage, a Walmart parking lot that’s expanding, a pipeline going in, any of those development items that could impact wetlands and streams, instead of having to provide a wetland offset themselves can just come to us, write a check and just walk away,” Harrington said. “We take on all the liability of the site in perpetuity.”
Meanwhile, the Allely family knows that their property will never be developed and is instead being restored to its historical conditions. They can also still access the land under the conservation easement, which is held by the nonprofit land trust Colorado Open Lands.
Staff at Colorado Open Lands say they hope the success of the Big Thompson mitigation bank will inspire other landowners to conserve their land.
“It’s just another tool, another way for us to look at getting creative about protecting open space in Colorado,” said Carmen Farmer, conservation project manager with Colorado Open Lands. “Traditionally, we protect land throughout the state using state tax credits and federal tax deductions and incentives. Sometimes the traditional model doesn’t necessarily pencil out for landowners. This is another way for us to go about incentivizing landowners to help protect their properties and make sure they’re compensated for doing so.”
Sarah Kuta is a freelance writer based in Longmont, Colorado. She can be reached at sarahkuta@gmail.com
Fresh Water News is an independent, nonpartisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Our editorial policy and donor list can be viewed at wateredco.org.
This story originally appeared on Fresh Water News on December 2, 2020.
Madeline Ryder planting mesquite in an in-ground rainwater harvesting basin in the Sugar Hill neighborhood of Tucson, Arizona. Source: Watershed Management Group
By Chris Malloy
On Navajo Nation land, a mostly rural area removed from the extravagant artificial waterways that sustain Southwestern cities, roughly two-thirds of people have access to running water. Just beyond, on the Hopi Reservation in Black Mesa, Arizona, Diné (as the Navajo call themselves) sheep herders Arvin Bedonie and Marie Gladue lack both running water and a well. Without a car and too elderly to haul water, they have to dig deep into their pockets to obtain the water they and their curly-horned sheep need to survive. The herders overpay, spending about $40 a week.
“The water itself is probably $5 at most,” Gladue said. “But to have someone haul it for you, you’re paying for their time and labor. That’s what adds up.”
Last spring, Bedonie and Gladue turned to an ancient method to help address their water travails. They began to harvest rain.
A line of 530-gallon rainwater tanks, square to better fit into a small space. Source: Lincoln Perino
Rainwater harvesting, or the collection of rain from building surfaces into vessels, might be the first way humans controlled water supply. The technology dates back at least to the dawn of agriculture. The ancients in Africa, Asia, Europe, and the Americas harvested rain. It provided water in rural Yemen, urban Rome, and Xochicalco in Mesoamerica, where rain from plazas and rooftops drained into subterranean cisterns, later used for domestic purposes or irrigation. Lacking a river, Jerusalem had cisterns that collected rain, including some carved into solid rock beneath the city.
Today, rainwater capture is used across the world. In Gansu, China, more than 10 million people have a water supply buttressed by rainwater, letting some make extra money through gardening, livestock, and poultry. In Sub-Saharan Africa, some crop yields have increased due to rainwater harvesting, according to one study. It is popular in India; in Gujarat, over a thousand schools are outfitted with rainwater catchment systems; in Tamil Nadu, all buildings must have them. More than a million homes in Australia capture rainwater. Residents of Bermuda and other islands lacking freshwater need the technology. People harvest rain in Egypt, Brazil, and Bangladesh.
Globally, rainwater harvesting can improve water access and help meet growing needs. Some 1.2 billion people lack access to safe drinking water. By 2050, the amount of food needed to feed the world is expected to double. Growing the crops to do so will take water. Though the earth looks blue from space, only three percent of our water is freshwater, and three-quarters of that is locked in glaciers (for now). That leaves about one percent of the planet’s water stock available for everyday uses like drinking, washing, and irrigation—a supply increasingly threatened as people across the globe continue to draw on aquifers and as climate change brings hotter, dryer conditions. In the American West, water has already become a pressing resource, as evidenced by the withering droughts of recent decades, and by the fact that, for instance, Arizona is already rationing its surface water supply. Rainwater harvesting—a cheap, low-barrier, low-energy method—may provide one piece of the long-term solution. It has a place in both urban and rural areas, and in developing and developed countries.
One percent of the planet’s water stock available for everyday uses like drinking, washing, and irrigation—a supply increasingly threatened as people across the globe continue to draw on aquifers and as climate change brings hotter, dryer conditions.
Most rainwater harvesting outfits look more or less like Bedonie and Gladue’s. They begin with a “catchment” surface like a roof. Rain splashes, rolls, collects, and sluices through a filter. A “roof wash” often ejects the first gallons, as these carry roof debris. Pipes or related conduits then deliver rain to storage tanks or simply the ground. From storage, water can be run to hoses, toilets, ponds, irrigation systems, herb gardens, peach trees, pet cage washing stations, even drinking glasses. With proper treatment, said Kathy Gee, professor in environmental science at Longwood University, “it’s very easy now to outfit rainwater harvesting in a way to produce potable water.”
In the United States, rainwater capture hasn’t been embraced beyond the community level due to a lack of government awareness and understanding. This is perplexing given its global reach and low-hanging benefits, like those Gladue and Bedonie enjoy (flexibility, drought hedge, access, decentralization) and others, like curbing urban flooding, stabilizing waterways during big storms, and conservation.
The potential for conservation is heartening. Rainwater harvesting could be a water source to ease mounting pressure on surface water and groundwater, by far the two biggest sources of water in the United States. This is vital given that waterways giving life to our farms and cities are stressed, like the Colorado River, and that our ancient aquifers, like the Ogallala, are diminishing. “Small changes make a big impact,” said Harold Thomas, assistant director of the Watershed Management Group in Tucson, Arizona, a city that pumps Colorado River water through more than 300 miles of desert. “The more that people use rainwater and stormwater, the less water we’re using that comes from the Colorado River and groundwater.”
In this Sept. 3, 2016 photo, Edgar Serralde, a lettuce farmer in Mexico City’s borough Xochimilco, uses a ladder to climb on to his rooftop the day a large water cistern, left, was delivered to his home. Source: AP Photo/Christian Palma
Noteworthy conservation, however, would require widespread adoption—a pipe dream in the minds of rainwater installers, educators, and enthusiasts. You could live a life in the United States without noticing rainwater capture. Even desalination and wastewater treatment are more widely known. In ignoring rainwater harvesting, the U.S. is an outlier, an improvident anomaly across borders and time.
Rainwater capture isn’t scarce in the U.S. due to legality. Today, it is legal in every state, though many have restrictions. A few, like Colorado, were late to permit the practice due to the West’s old “first in time, first in right” water rights law origins. Colorado didn’t legalize it until 2016. Even now the state’s rainwater capture laws remain draconian, limiting harvesting to 110 gallons for non-potable purposes. To sufficiently capture bigger storms, Fouad Jaber, a professor and extension specialist in integrated water resources management at Texas A&M, recommends that quarter-acre homes have systems of “at least 1,000 gallons, if not 1,500.” Some other states, like Texas and Rhode Island, encourage the practice via tax incentives. Some local governments offer their own. Tucson has two tiers of rebate, including one for up to $2,000 based on tank size.
Despite legality and safety (with the right roof materials, pipe sealing, and treatment), many factors prevent U.S. adoption. One is money. Catchment systems are cheap relative to, say, drilling 200-foot wells, but they still have costs. And these might thwart urbanites who pay less for a month of city water than for dinner out for two. “Rainwater harvesting does pay for itself,” said William Hunt, an engineer, economist, and stormwater expert at North Carolina State University. “But in our experience, you would have to own that property for decades.” More so than solar panels, how long a system takes to become profitable varies (based on roof size, annual rainfall, and collection capacity). Some studies have even found that rainwater harvesting isn’t financially feasible, period. For millions off the water grid, though, harvesting rain is priceless.
“The more that people use rainwater and stormwater, the less water we’re using that comes from the Colorado River and groundwater.”
Another obstacle to widespread adoption is that many of its benefits are nebulous and rooted in future gains. Conservation remains a long-run abstraction for some people, especially people with pressing needs today, like those in the American West piped into hard-won water systems in place for generations. “If you look at the whole history of water in the West, it has really moved away from water as a fundamental resource,” said Brook Sarson, co-owner and CEO of Catching H2O, which installs rainwater harvesting systems in Southern California. “It has become a commodity, and that undermines the bigger picture of ecology.”
This 1,000-gallon tank in Tucson’s Palo Verde neighborhood collects rain from the roof. Source: Watershed Management Group
The reasons for non-adoption in the U.S. are many: a “yuck factor” (undue disgust at the idea of an atypical water source), newness (despite its long history), the cheapness of city water, a lack of education about the technology and water conservation, the litany of immediate problems that besiege the average person, and so on.
Moreover, local governments may have a disincentive to spur rainwater capture, which lacks a robust policy framework. “One of the biggest challenges of rainwater harvesting is that the regulations and permitting haven’t caught up yet,” Gee said. “We have found that it can be difficult getting a system approved.” Governments profit from selling water. When people harvest rain and trim or terminate monthly water bills, they profit less. “Water is important income for municipalities, so they could be resistant to things that take away their income,” Gee said. Sarson has navigated red tape when she installs systems and believes rainwater harvesting “is at odds with what the policymakers envision.”
As climate change brings deeper droughts, and as storms strengthen and rainfall variability grows more erratic, the value of rainwater capture in the U.S. might crisp into focus.
The practice is effective. Viewing rainwater capture as a way for communities and farms to counter climate change, UNESCOhas made it a pillar of its African Water Vision for 2025. In parts of rural Thailand, rainwater capture, sometimes using pots and jars, has improved access for people where centralized water systems are unreliable, according to one study. Another study found that rainwater harvesting may“fulfill the entire annual domestic water demand of a family in the rural areas of Bangladesh.” Still another reported that,globally, rainwater capture could provide up to 90 percent of urban household water consumption.
“If the rain used to come in one inch 30 times a year and now it’s coming in three inches 10 times a year, you’re going to have longer periods of droughts. Rainwater harvesting is going to allow you to have water during periods that are hotter and dryer due to climate change.”
In addition to carving out an alternate water source, rainwater harvesting might help bridge the dry gaps between the stronger storms of the future. “If the rain used to come in one inch 30 times a year and now it’s coming in three inches 10 times a year, you’re going to have longer periods of droughts,” said Jaber. “Rainwater harvesting is going to allow you to have water during periods that are hotter and dryer due to climate change.”
Since Gladue had her rainwater harvesting system installed in the spring of 2019, summers have been atypically dry, even for the Southwest. Still, when the scant rain of Black Mesa falls, water rills down the tilted roof of the sheep corral and a sloped gutter into two 660-gallon tanks, capturing, with 324 square feet of roof, about 200 gallons per inch of rain. From here, gravity feeds water through a black hose to a trough, where her woolly, curly-horned sheep can slurp away.
“Overall, I would say the system has been good,” she said. “If you can catch the water, it’s good. The sheep like it more than the other water, definitely.”
Gladue, a former employee of Black Mesa’s water department, wants to help spread the technology to friends and neighbors. “I’m hoping to write grants for other people to get barrels,” she said.
As the climate changes, local, state, or federal policy shifts might foster rainwater harvesting at scale, helping to make water more accessible and sustainable. Its current American standing trails the benefits of the practice, which, together with methods like stormwater capture and reusing air conditioner condensate, might net vital changes. “Rainwater harvesting is a key component,” said Hunt. “Can rainwater harvesting do it alone? In theory, it could, but I don’t see that happening. It will have to be part of a larger set of systems.” Until those systems form, we’ll watch rain fall unharvested, letting the world’s most precious resource slip away.
Chris Malloy is a writer from Philadelphia now based in the Southwest. For stories, he has gone foraging in the southern Rockies and Sonoran Desert, trailed a quest to brew ale overnight in a forest, roamed a feral mountain orchard with cider-making scientists, and gone hunting with Apaches. He is the food critic at Phoenix New Times.
Shortly after the networks called the 2020 presidential race for Joe Biden, a list of four priorities appeared on the president-elect’s transition website.
Until that point, the Biden campaign’s Build Back Better platform was anchored by a placeholder message, one that urged patience from the American people and noted that votes were still being counted.
On November 8, a day after the victory announcement, the four priorities appeared, simple and direct, a distillation of the Biden team’s main concerns as it prepares to take the reins of American government.
Covid-19
Economic Recovery
Racial Equity
Climate Change
Certain observers noticed a common thread — an undercurrent, if you will — that knitted these priorities together: water. Water, which washes hands during the pandemic. Water, which is needed for factories to produce goods, farms to grow crops, and cities to reboot. Water, which has sometimes been denied to communities of color or delivered in polluted form. And water, which is how a warming planet will wreak much of its havoc.
“Water is integral to all of those things,” said Heather Cooley, director of research for the Pacific Institute, a California-based environmental and public policy organization.
Cooley is not the only one to make that observation. Academics and former policy leaders chimed in. So did conservation groups like American Rivers, and think tanks like the Brookings Institution. Even the political consultant David Axelrod, at a Colorado State University symposium in mid-November, discussed how the incoming administration or another campaign could frame a water message. “It seems to me that part of the story you want to tell is the story of interconnectivity,” Axelrod said.
Out of this chorus a narrative has emerged: in a country that is politically fractured, water can unite.
“Here’s an opportunity with both Republicans and Democrats to be working on water together,” Cooley said. “It’s also an opportunity to be uniting us.”
But will it?
Popular opinions
An analysis of 2020 voting data by The Economist found a widening gap between urban and rural voters in the United States. The most urbanized counties gave a larger share of their vote to Joe Biden than they did to Hillary Clinton in 2016. Donald Trump, meanwhile, increased his vote share in the least urbanized counties. Red getting redder; blue turning bluer.
Those party and geographical divisions may seem rigid, but they are not insurmountable. Partisanship tends to peel away when it comes to water. In Colorado’s Delta County, for instance, Trump won more than two-thirds of the votes in November. But a regional measure to increase property taxes to pay for water projects, water conservation, and ecosystem protection gained 70 percent approval in the conservative county.
These results shouldn’t be surprising. Unlike climate change, which does score high marks for political division, water is generally an issue on which Republicans and Democrats agree, at least in the abstract. Water pollution doesn’t lend itself to an easy red-blue split.
Strange-bedfellow coalitions — of ranchers, Indigenous groups, hunters, and conservation organizations, which have come together in recent years to oppose the Pebble mine in Alaska and a groundwater pipeline from rural Nevada to Las Vegas — are not uncommon.
Because water bridges party politics, it could also unite urban and rural interests that otherwise seem at odds, Teodoro told Circle of Blue.
“Rural water problems — whether it’s affordability or access or quality — those problems are just as severe and often more severe than what we see in urban areas, and that creates an opportunity, an avenue for a political coalition,” Teodoro argued.
The seeds of that alignment are already in the ground. When people have a choice, they usually signal that they are pro-water, not only in opinion polls but in elections. Sri Vedachalam, who leads the water program at the Environmental Policy Innovation Center, has tracked state-level ballot initiatives related to water. His data set — which he notes is not exhaustive and focuses mainly on water infrastructure funding measures — goes back two decades. In that time, nearly 90 percent of water-related ballot initiatives were approved.
There are several explanations for the successes, Vedachalam said. People in the U.S. are more fiscally liberal than stereotypes would suggest and they are willing to pay for important projects with local benefits, especially water systems. Water is generally a non-partisan issue, unless leaders politicize it. And such measures often must clear procedural thresholds, such as approval by the Legislature, before they reach the ballot. This means widespread political support going into the election.
Still, water scores highly because the result is tangible, Vedachalam told Circle of Blue. “People see the project at the local end.”
Recent election cycles reflect that connection to place leads to a willingness to spend. Besides the Colorado tax measure, voters in Los Angeles and Santa Clara counties passed or extended water infrastructure taxes. Voters in Texas passed two bond measures to fund drinking water improvements in low-income areas and flood protection.
Not to be outdone, voters in Orange County, Florida, overwhelmingly approved an amendment that changes the county charter to give legal protection to rivers. The amendment, which drew in voters of all political stripes, passed with an unusually high margin: more than 89 percent of the vote.
Water — and indirectly, climate
Early actions during the presidential transition suggest that climate has vaulted to the forefront of the Biden administration. Former secretary of state John Kerry was named the administration’s climate envoy, not only representing the government in international discussions but also earning a seat on the National Security Council.
But given the political dynamics of climate, some observers feel that smarter policy might require that the issue be reframed around water.
“Let’s not talk about climate,” Teodoro said. “Let’s do climate policy, and talk about water. And that’s not being sneaky. That’s just being effective.”
For Felicia Marcus, climate progress has been frustratingly slow. But the former head of the California Water Resources Control Board says that water is an entry point for responding to a warming planet, a way to engage communities on the inevitable damage to their homes and their towns unless they act.
“Adaptation work isn’t as controversial because water is the bleeding edge — it’s where we’re going to feel the impacts of climate change,” said Marcus, currently a fellow at Stanford’s Water in the West program. Adaptation, she argued, can set the stage for work on reducing emissions.
“You can relate to the impacts,” she said.
In the art of the possible, what could be painted?
Uniting over water is no guaranteed bet, Teodoro said. Democratic leadership seems willing to act — and willing to substantially increase federal funding for infrastructure — but that must be coupled with a good-faith effort from Senate Republicans, who could maintain their majority and block legislation. President Biden could govern by executive order, but those directives can just as easily be undone by the next administration.
Still, there are examples to build from in both chambers. Rep. Brian Fitzpatrick, a Republican who represents suburban Philadelphia, and Rep. Antonio Delgado, a Democrat from upstate New York, co-sponsored three bills in response to contamination of waterways with toxic PFAS compounds. Fitzpatrick was one of 37 representatives to ask the EPA and Department of Education to provide schools and day cares with the necessary resources to identify PFAS contamination within their buildings.
Rep. John Katko, a New York Republican, introduced legislation in March that would establish a federal water research program for testing and deploying the next generation of treatment, monitoring, and recycling technologies. In effect, it would build on the legacy of the ARPA programs that leveraged federal funding to spur technological innovation in defense, computing, and energy systems. The bill did not get a hearing in committee.
Marcus feels that technological innovation is a winning strategy, especially alongside the push for more federal investment in water infrastructure. The next generation of water technology could be smarter, more efficient, and designed for a climate in flux.
“We can rebuild more deftly,” Marcus said. “We don’t want to rebuild the infrastructure of the 1970s.”
Biden’s choice of running mate has encouraged advocates who feel that Kamala Harris will be a voice for environmental justice and give attention to water. In her time in the Senate, Harris introduced several bills on these subjects, including the Water Justice Act, which would have expanded funding for water infrastructure and focused on rural areas and low-income communities. (It did not move out of committee.) Early in the pandemic, Harris urged utilities not to shut off service because of late payment.
There are other water actions that link to the Biden administration’s four priorities. Anne Castle, a former Obama administration official in the Department of the Interior, said that the Biden administration could focus on universal access to drinking water on Indian reservations.
These sorts of commentaries — that water is a tangible, local concern on which real progress can be achieved — are a cottage industry in the wake of the Biden-Harris victory and other electoral triumphs.
The president of the conservation group Western Resources Advocates and the executive vice president of the Colorado Cattlemen’s Association co-authored an opinion piece praising the residents of that state, who approved three local or state tax increases in the last two years to fund water projects.
“Water will always have its conflicts, but the last two years have taught us that when future water funding needs and opportunities arise, a diverse cross-section of Colorado stakeholders and voters will support them every time,” Jon Goldin-Dubois and Terry Fankhauser wrote.
Farther west, Ann Hayden of the Environmental Defense Fund shared a byline with Cannon Michael, the chief executive of Bowles Farming, which is located in California’s Central Valley, a region perpetually riven with water disputes. They argued that water is “a lifeline that binds us together,” and that the shared heritage could separate it from the typical political fray. As long as the interest groups are willing.
“We have decades of experience coming at water challenges from our silos,” they wrote. “Let’s break down those silos, come together as Californians and see what happens. Isn’t it worth a shot?”
Marcus, for one, is all-in with this type of thinking. And she thinks many others are, too.
“Beneath the partisan bickering, which is aided by lawyers and lobbyists that thrive on discord, there are people who want to fix stuff,” Marcus said. “I think there’s a hunger for problem solving.”
“Water is the place to do it,” she continued. “It could change millions of lives for the better and set the country on course for the 21st century.”
Brett Walton writes about agriculture, energy, infrastructure, and the politics and economics of water in the United States. He also writes the Federal Water Tap, Circle of Blue’s weekly digest of U.S. government water news.
Cattle have their evening meal in the San Luis Valley. Investors here and elsewhere in Colorado have purchased farm land and water rights with the stated intent of exporting it to the Front Range, a plan that worries some lawmakers. June 6, 2019. Credit: Jerd Smith
By Sarah Kuta
Colorado’s anti-speculation water laws are considered some of the toughest in the West. Still, state lawmakers worry those laws may not go far enough to prevent water profiteering.
Now, an 18-member work group charged with exploring ways to strengthen the rules is getting down to business.
The work group stems from the passage of Senate Bill 20-048, a bi-partisan effort signed into law by Gov. Jared Polis in March that directed Colorado’s natural resources department to convene the group to study anti-speculation law. The group’s recommendations for any proposed changes are due in August 2021.
“In my mind, I think speculation is going on,” said Colorado State Sen. Don Coram, a Republican who represents several Western Colorado counties and co-sponsored the legislation to form the work group. “There are situations that are just not meeting the smell test for me. We need to look under the tent and see what’s going on.”
The group is led by Kevin Rein, state engineer, as well as Scott Steinbrecher, a Colorado assistant deputy attorney general. Other members include water engineers, members of the Colorado Water Conservation Board, a retired Colorado supreme court justice, farmers and ranchers, local and regional water managers, and several attorneys.
Water law has a long history here, with roots dating back to the 1860s, when Colorado was still a territory. Today, Colorado’s water law prohibits speculation and requires that all water be put to beneficial use, an umbrella that encompasses uses like irrigation, commercial, domestic, industrial, municipal, environmental, recreation, fire protection, snowmaking and power generation, among others.
The water laws are built on a legal framework known as prior appropriation, which means that those with the earliest court-decreed water rights — known as senior rights — get first dibs on Colorado water, a concept that’s often referred to as “first in time, first in right.”
Water rights can be leased, sold, transferred and changed; new water rights can even be decreed, so long as there’s water available. All water rights cases must go through a complex water court process that includes demonstrating how the water will be put to beneficial use.
These requirements are intended to safeguard against speculation. But with water demand and prices soaring, lawmakers worry about loopholes in the process, pointing to recent investment group purchases of farm land and their senior water rights on the West Slope and in the San Luis Valley. So far, the investors are continuing to use the water for irrigation, a beneficial use, but lawmakers worry they will turn around and sell the rights for a profit in the future. Irrigation may just be an interim placeholder that’s part of a larger investment strategy.
So, how will the work group’s members untangle 160 years of complex water rules and make recommendations for ways they could be improved? They’ll likely start with a thorough history lesson and a deep dive into existing anti-speculation law, said Rein, the group’s co-chair, adding that he believes the group is well-poised to tackle the challenge at hand.
“You see a very diverse group of knowledge — attorneys, municipal water providers, agricultural users,” Rein said.
Joe Bernal, a fourth-generation farmer in the Grand Valley and a member of the new work group, said he’s glad to be part of a conversation that impacts his family’s livelihood.
“I’m minding my own business, so to speak, so that things won’t be decided for us by outside groups who don’t have a vested interest in what we’re doing,” he said. “You have to have skin in the game and a good understanding of issues if you’re going to try to influence decision-making.”
Another group member is Joe Frank, general manager of the Lower South Platte Water Conservancy District in northeastern Colorado. He plans to participate with an open-mind, but already he’s contemplating how proposed changes to Colorado water law could hurt landowners: How will the changes impact an irrigator’s ability to sell their water and land? Will the value of their land or water suffer because of these changes?
“There’s this tension here, especially in our basin, but also statewide, of a high demand for water, which inflates the value of it — it’s hard to blame farmers for wanting to sell their water because of all different kinds of circumstances,” he said. “We would prefer them to keep their water and stay in agriculture because that’s the economic base for our area. But you can’t just go say, ‘We’re going to put a stop to it.’ Now you’re impacting somebody’s property rights.”
Frank said he also has some questions about the constitutionality of any changes the group may propose.
“I do have some reservations about whether this will actually solve a problem without causing another one,” he said. “You don’t want to cause unintended consequences here.”
This article first appeared in the Fall 2020 issue of Headwaters magazine.
Sarah Kuta is a freelance writer based in Longmont, Colorado. She can be reached at sarahkuta@gmail.com.
Fresh Water News is an independent, non-partisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Its editorial policy and donor list can be viewed at wateredco.org.
COYOTE SPRING VALLEY, NEV. — Five wells punch the scorching Nevada desert.
Water in this area is locked underneath the ground. It flows silently and invisibly as part of an aquifer stretching roughly 50,000 square-miles. Much of this water collected here thousands of years ago when lakes covered most of Nevada. Now wells are summoning it for human use. The problem is there’s not enough to go around.
At the center of this tension are the five wells.
A housing developer, Coyote Springs Investment, owns four wells, planted to one day pump water for a sprawling new community in the desert, filling the highway stretch about 50 miles northeast of Las Vegas. The remaining well belongs to the Southern Nevada Water Authority.
Coyote Springs wants to pump its wells. The water authority wants to keep most of it in the ground.
The five wells mark divergent interests with a history intertwined by a similar goal: development and the need to secure the water to make it happen. But today the housing developer and the powerful water utility, locked into past contracts, are caught in a fight, playing out in hydrologic reports and hearing rooms, over what might seem a simple question: How much water is there?
Daniel Rothberg/The Nevada Independent
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That answer is complicated by how much is at stake — a Colorado River tributary, the survival of an endangered Nevada fish and the future of development in a sweeping area outside Las Vegas.
In the early 2000s, during a period of rapid growth, Southern Nevada politicians gave Coyote Springs their blessing to develop a new community, spanning two counties (Clark and Lincoln) on empty land about 50 miles outside of Las Vegas. Thousands of homes. Golfing. Shopping. Gambling. They would call the community Coyote Springs, named for the valley it occupied.
On a recent hot August morning, what was once planned as a Palm Springs in Nevada is still mostly empty. Two temporary street signs, for CS Parkway and F Street, mark an intersection that has yet to be paved. At least $200 million in infrastructure — flood control, fiber optics, a detention basin and wastewater treatment plants — lies around both sides of the highway. Most of it goes unused, with one exception: A well-manicured golf course meant to attract homebuyers.
But there are no homes. State officials won’t allow it, and it has everything to do with the wells.
In the early 2000s, during a period of rapid growth, Southern Nevada politicians gave Coyote Springs their blessing to develop a new community, spanning two counties (Clark and Lincoln) on empty land about 50 miles outside of Las Vegas. Thousands of homes. Golfing. Shopping. Gambling. They would call the community Coyote Springs, named for the valley it occupied.
There was a time, not long ago, when all the political juice appeared to be flowing to Coyote Springs. Then it slowed to a trickle. Political momentum only gets you so far where water is scarce — and Las Vegas has its supply on the line. At least that’s how Coyote Springs sees it.
“Someone doesn’t want us to develop,” says Emilia Cargill, chief operating officer for Coyote Springs Investment. “How do you stop someone from developing? You take their water away.”
In the past two years, Coyote Springs has taken the issue to court. In 2018, it sued an arm of the water authority with claims including slander and breach of contract. It has sued the state twice. In August, Coyote Springs accused state officials of taking their property: the right to use their water.
The fight over Coyote Springs is about the collision of water, science and politics. And it reflects a broader tension facing Nevada and the modern West, a reckoning with a past in which water officials handed out legal rights to use an unsustainable amount of water: first come, first serve.
In Nevada and elsewhere, the problem is made more severe because the law developed to view rivers and groundwater as separate stores of water, despite generations of science and observations showing that the two often act as one. In places like Coyote Spring Valley, this paradigm led past officials to overestimate the amount of water rights available to hand out.
Nevada’s water statutes follow a similar framework used across the West. That framework is meant to settle disputes, inevitable in a region where aridity is its defining character. Yet state regulators often face serious barriers to enforcing the rulebook in a manner that is cut-and-dry.
The fight over Coyote Springs is about the collision of water, science and politics. And it reflects a broader tension facing Nevada and the modern West, a reckoning with a past in which water officials handed out legal rights to use an unsustainable amount of water: first come, first serve.
Today regulators recognize the issue, and they are trying to tackle the problem.
But the solutions are challenging and even collaborative deals to rein in overuse end up in court. Local judges weigh in, then many decisions are appealed to the Nevada Supreme Court, which often has the final say. Every watershed is different. Yet the future, in most cases, looks similar.
Someone is going to get less water than once promised.
The Muddy River Springs area from State Route 168 on Aug. 13, 2020. (Jeff Scheid/The Nevada Independent)
Warm springs, hot drought
Drive a dozen miles away from Coyote Springs and the landscape changes dramatically. State Route 168 sits on top of the expansive aquifer. At first, this stretch of highway looks like the rest of the desert. It’s hot. There’s not much water. Then you arrive at the Muddy River Springs area.
The creosote bushes and prickly desert vegetation give way to palm trees and honey mesquite as groundwater discharges into a series of springs, enough to create a small river in the desert.
The narrow Muddy River flows beside rural communities, a former coal plant and agricultural operations, before joining with the Colorado River and emptying into Lake Mead, which stores water for sprawling cities, farms and businesses in Arizona, California, Nevada and Mexico.
The water authority owns or leases the rights to most of the Muddy River. Officials store that water in Lake Mead, making this humble tributary a critical part of Las Vegas’ water portfolio.
“The water that we use on both the Muddy and Virgin River to [store] in Lake Mead is probably, next to our Colorado River allocation, the most important allocation of water that we have,” says Colby Pellegrino, who serves as the water authority’s deputy general manager for resources.
Because groundwater feeds the Muddy River, the river’s flows are modeled to decrease as more wells are turned on and an increasing amount of water is pumped out of the ground.
Different hydrologists offer different models for this behavior. But enough is known about the hydrology that state officials ruled in June that there was a significant degree of connection: When too much groundwater is pumped up, less water makes it to the springs and the river.
The dispute is over how much is too much.
And the fear is once Coyote Springs and other groundwater users crank up the spigot, it could one day leave Las Vegas with less water, despite having rights that were issued prior to 1920.
Groundwater pumping at Coyote Spring Valley is not the only threat. Other interests, including the Moapa Valley Band of Paiutes, the Moapa Valley Water District, the Mormon Church, NV Energy and the Southern Nevada Water Authority itself, have rights to capture groundwater.
Last year, the water authority argued that the area could only sustain a little more than half of what is currently used, almost one-tenth of the volume that businesses have the right to use.
Their estimate comes as the West faces a drier future. Scientists say a climate change signal is already evident in decreasing the flows of the Colorado River, the primary water source for the Las Vegas Valley. With warming temperatures, water managers in the seven states that use the Colorado River are all figuring out how to firm up existing supplies while doing more with less.
Las Vegas, with the Muddy River, is no exception.
U.S. Geological Survey instruments measure streamflow in the Warm Springs area. (Jeff Scheid/The Nevada Independent)
The endangered Moapa dace (U.S. Fish and Wildlife Service)
A diver counts the Moapa dace population. (U.S. Fish and Wildlife Service)
In the Muddy River Springs area, palm trees provide a respite from the summer heat. As Patrick Donnelly, the state director for the Center for Biological Diversity, comments on the unique smell of a riparian area in the desert, he has his eyes on another pressing concern.
Each year, divers put on snorkels, enter the protected springs and assess the health of the dace habitat. In August, divers reported a 78 percent increase from last year, a jump to 2,342 dace.
But Donnelly, the water authority and federal wildlife managers are still worried that additional groundwater pumping would reverse gains made through habitat restoration at the springs. And there is evidence to back up their claims.
Increased groundwater pumping during a stress test in the mid-2010s led to a decline in several high elevation springs, according to streamflow and pumping data. Drawing on that data, the U.S. Department of Interior concluded in 2013 that at least two springs could dry up within three years if higher levels of pumping were to continue.
“This is your ultimate example of surface and groundwater as the same resource.”
– Patrick Donnelly, Center for Biological Diversity
“The spring levels went down with the pumping,” Donnelly said. “And they haven’t recovered.”
“This is your ultimate example of surface and groundwater as the same resource,” he added.
Reversal of fortune
Golf carts sit in a neat row at the parking lot for Coyote Springs. Military jets from the Air Force’s Nevada Test and Training Range, tucked behind the mountains, can be heard circling nearby. The $40 million golf course, a splash of green in the desert, was built to attract homebuyers.
Behind the golf carts is a pro shop, and behind the pro shop is Cargill’s office. On one wall is a map of groundwater in the region (all flows point to Lake Mead). And taped to Cargill’s computer is a section from a ruling issued by Nevada’s top water regulator (why they can’t build homes).
“It’s all flowing down to Lake Mead,” Cargill says, nodding to the annotated map posted to a wall. “And who benefits from water going into Lake Mead? Southern Nevada Water Authority.”
Coyote Springs believes there are a few geologic caveats to that flow pattern.
In preparation for a hearing last year, Coyote Springs commissioned a geophysics consultant to study the geology within the aquifer. The analysis argues that geologic structures on the west side of the valley trap water. The finding, Coyote Springs asserts, means that they can pump groundwater without it directly affecting the springs. Simply put, there is water to build homes.
Many models show the aquifer, known as the Lower White River Flow System, behaving as a “bathtub:” If you remove one gallon of water in one area, you leave the whole aquifer with less. That is, if you pump water at Coyote Springs, you are likely to affect surface water miles away.
“Our argument is that that’s not true — that there are a lot of places where there are faults or slips or strikes underground,” Cargill said, noting the visible geologic formations in the valley.
Men ride a cart while golfing at Coyote Springs, located 55 miles northeast of Las Vegas, on Tuesday, July 10, 2018. Nevada’s top water regulator is blocking the development because there may not be enough ground water to support it. (Jeff Scheid/The Nevada Independent)
Still, enough is known about the aquifer that Nevada’s top water official, State Engineer Tim Wilson, ruled in June that the “best available data” did not support Coyote Springs assertion, even if geologic variations exist. Two days later, Wilson’s office again denied its plans to build.
In August, Coyote Springs sued the state, alleging that the state engineer’s office made a series of decisions that resulted in an “unconstitutional taking” of the water rights it needs to develop. The court filing said the state’s own science supported more groundwater pumping in the area.
Over the past year, it has accused local agencies, which once helped move the project forward, of doing the same. The fight is no longer only about hydrologic modeling. It is also about politics.
As the water purveyor for Coyote Springs, top officials at the water authority, in addition to the Clark County Commission, carry legal sway over whether homebuilding can move forward.
Past Clark County Commissions supported the project, approving a development agreement and entitlements throughout the past two decades. In 2018, the County Commission, then chaired by Gov. Steve Sisolak, approved a zoning change and tentative map for 575 single family lots. Former Sen. Richard Bryan represented Coyote Springs before the commission.
At the time, county attorney Robert Warhola said the approval was “not going to go anywhere unless they resolve the water issue.” State water officials would still have to sign off on the plan.
Today Clark County appears to be backing away. In January, county officials started a process to acquire Coyote Springs’ land, according to records requested by The Nevada Independent.
Coyote Springs overlaps with critical habitat for the Mojave desert tortoise. Because the Mojave desert tortoise is listed as threatened under the Endangered Species Act, the county is required to offset — or conserve — a certain amount of acreage in order to permit new development. As Las Vegas looks to expand along the I-15 to California, it needs to protect more tortoise habitat. In Coyote Springs, the county believed it had a willing seller.
An acquisition of Coyote Springs would also be a win for conservationists, too. Since the project was first proposed, groups, including the Sierra Club, have raised concerns that a faraway community would affect air quality, increase vehicle emissions and encourage sprawl.
According to a draft proposal, the acquisition was part of a phased approach to buy land from Coyote Springs and move development plans away from building a sprawling town 50 miles away, one that might conflict with the Air Force’s operations.
The acquisition would effectively unwind development plans that had originally been pushed by one of the state’s most powerful lobbyists, Harvey Whittemore, and supported by some of the state’s top politicians, including former Senate Majority Leader Harry Reid. Whittemore was imprisoned in 2014 for giving illegal campaign contributions to Reid, allegations stemming from a legal feud with his former business partners, Bay Area developers Thomas Seeno and Albert Seeno Jr.
Former Clark County Commissioner Chris Giunchigliani was the only vote against the zoning change and tentative map in 2018. Coyote Springs, she said, offers insight into how developers could push forward a project without the commission weighing the long-term impacts, especially in the boom years.
“It’s a perfect example of bad public policy being advanced just because we knew someone,” said Giunchigliani, who was elected to the commission in 2006 after serving in the Legislature.
In April, the proposed acquisition appeared on a draft agenda for the County Commission’s approval. The item proposed acquiring roughly 6,900 acres of Coyote Springs’ land, with the Air Force, for about $35 million. Then the item was abruptly taken off the agenda. Cargill sent a letter to Marci Henson, director of the Clark County Department of Environment and Sustainability denying the county’s offer.
Cargill wrote that there was “significant disagreement” over the proposed acquisition, including the valuation and a disregard for development rights issued by the county.
Coyote Springs, Cargill writes in the letter, was “gravely concerned” that entities, including the state engineer, the Las Vegas Valley Water District, the Southern Nevada Water Authority and Clark County, “have, and continue to, individually and collectively, take actions in bad faith” to stop the development, drive down the market price and effectively “take” away their property.
In an emailed reply, Henson said she was “surprised by the letter,” writing that the “tone and content bear no relationship to our previous discussions and communications. ”As part of the email chain requested by The Nevada Independent, Henson said Coyote Springs had not been “truthful” about being a willing seller. In response, Cargill wrote that the developers “take offense with Clark County’s assertion.” She then said the county had not been “forthright” either.
A view of Hoover Dam is seen from the Mike O’Callaghan/Pat Tillman Memorial Bridge on Wednesday, Aug. 28, 2018. (Jeff Scheid/The Nevada Independent)
Divergent interests
The proposed acquisition was not only about the land. It was also about the water.
According to a draft of the county’s proposed acquisition, the water authority expressed interest in buying Coyote Springs water rights to protect the Moapa dace. Such a move would eliminate increased groundwater pumping, a threat to surface water: the springs and the river.
Where the groundwater gives way to springs, Coyote Springs and the Southern Nevada Water Authority’s interests part ways. Coyote Springs is still focused on pumping more groundwater. Today the water authority is focused on maintaining the flows of the Muddy River, where it owns and leases rights to water — water that is stored in Lake Mead.
The water authority is also invested in the Moapa dace’s recovery. Reliant on steady spring flow, the two-inch fish is considered an indicator species for the watershed’s overall health.
“We as water managers know that if you have an endangered species issue, you have a water supply issue if that endangered species is using the same source of supply as you are,” Pellegrino said.
For years, Southern Nevada politicians, the water authority and Coyote Springs appeared to be working hand-in-hand on developing Las Vegas, the water wells and securing water to construct new homes in the fast-growing region. In the 1990s, the water authority even purchased millions of gallons in water rights from Coyote Springs to augment its relatively small Colorado River allocation.
“When Coyote Springs was a big issue — or expected to set the world on its ear — two things were going on,” said Michael Green, an associate history professor at UNLV who has studied the development of southern Nevada. “One was that the [housing] boom seemed constant.”
The other had to do with different attitudes about the limits on water.
“We know more about the trends in water availability than we did 25 years ago,” he said. “The thought that we have the water or we can get the water was in people’s minds.”
In the 1980s, Las Vegas officials placed their bets on groundwater in the Coyote Spring Valley. At the time, the land belonged to Aerojet, an aerospace company that wanted to test rockets.
“We were going to buy all of Aerojet,” said Pat Mulroy, who played a key role in the agreements and deals involving Coyote Springs as the water authority’s former general manager. “We were going to buy the whole thing, kit and caboodle.”
But everyone’s bets on groundwater in the valley were off; the sustainable supply was small.
As the groundwater showed its limits, the water authority turned to surface water on the Muddy River, acquiring water rights through purchases or leases.
For Coyote Springs, this created an inevitable conflict.
As their water purveyor, Las Vegas officials were charged with deciding whether Coyote Springs could pump its water. At the same time, they have a stake in seeing less pumping, not more, to protect the groundwater-fed flows of the Muddy River.
Since 2017, the water authority — along with state officials — have raised concerns about Coyote Springs’ efforts to use its water rights. Las Vegas water officials contend that the responsible choice, as a water provider, was to take action before Coyote Springs built homes, given the ongoing concerns about groundwater use.
But Cargill said that the water authority is “conflicted” between its multiple roles. She added that state and local agencies should have considered the water scarcity issues before entitling the project, a process that gave the developers the belief that they were allowed to build.
“We had entitlements,” Cargill said. “We had permissions to build. That’s why we bought the water. That’s why we bought the land. That’s why we spent the money. We wouldn’t have spent what we’ve spent and continue to spend on a daily basis if we hadn’t had assurances that we were going to be able to develop.”
Timeline of Recent Issues
April 2017: The Las Vegas Valley Water District expresses concern that “any substantial volume of water” running through Coyote Springs’ wells could impair spring flow for the Moapa dace and Muddy River rights, most of which the water authority owns or leases. Water authority officials brought their concerns to Nevada’s top water official, the state engineer.
May 2018: Albert Seeno III, a Bay Area and Reno developer behind Coyote Springs, became personally involved, talking to then-State Engineer Jason King. According to Coyote Springs lawyers, King told Seeno “not to spend one dollar more on the Coyote Springs Development Project and that processing of [its development] maps had stopped.”
September 2018: Per a court settlement, King conditionally approved subdivision maps if Coyote Springs could prove that the groundwater could be pumped sustainably.
September-October 2019: The state engineer held hearings on the hydrology of the area after water users in the region submitted exhaustive hydrologic reports and modeling.
June 2020: After a new order on the issue, declaring that the region had less available groundwater than once previously thought, the state again recommended denial of development maps.
Records show that the limits to groundwater supply were well-established. For this reason, Wilson, the state engineer, as well as other water authority officials, have dismissed claims that Coyote Springs was short-changed or not informed of the scarcity issues in the area.
“The water issues out there had been known for a very long time,” Wilson said.
Over the years, as Coyote Springs progressed through the local planning process, developers were warned repeatedly, Mulroy said. But they remained convinced the water was there. If Coyote Springs wants to develop today, “they’re going to have to bring water in from somewhere,” Mulroy added.
The Southern Nevada Water Authority’s MX-5 well and associated facilities in Coyote Spring Valley on Aug. 13, 2020. The well is named for when the federal government sought this land for its MX Missile Program. (Jeff Scheid/The Nevada Independent)
A long path forward
The fight over water at Coyote Spring Valley is long from over.
In June, the state engineer’s office issued an order capping regional groundwater pumping at 8,000 acre-feet (an agricultural term describing the amount of water that can fill one acre to a depth of one foot). It’s twice the cap that the water authority had hoped for, but it’s far less than the roughly 30,000 acre-feet that Coyote Springs had suggested was available.
The cap means that the vast majority of groundwater rights in the area — about 31,000 acre-feet — are going to have to be restrained. The question now is how to do that equitably.
A large amount of water in the Muddy River watershed is controlled by the Moapa Valley Water District, which provides service to the Moapa Valley Band of Paiutes and two rural communities.
Should water used to serve existing communities be prioritized?
The path toward a resolution to decide who can use their groundwater — when, where and how much — reflects a complicated future, not only for Coyote Springs but in areas across Nevada, where past state officials routinely issued more water on paper than there is water to go around.
Correcting this problem is challenging. Decisions to appropriate, and over-appropriate, water were made decades ago. State officials did not always incorporate the same values, especially around protecting the environment, that policymakers consider now. And to fix the issue, regulators are constrained by a system of agreements, entitlements and plans that were approved in the past.
The path toward a resolution to decide who can use their groundwater — when, where and how much — reflects a complicated future, not only for Coyote Springs but in areas across Nevada, where past state officials routinely issued more water on paper than there is water to go around.
The state engineer’s order recognizes the connection between groundwater and surface water, and it proposes an approach that aims to look at the whole puzzle, not just the puzzle pieces.
But nearly everyone involved in the area found something to disagree with. At least ten water users — companies and government agencies — are participating in a judicial review in Las Vegas district court.
“I don’t think the litigation’s ending any time soon,” Pellegrino said.
Pellegrino’s hope, though, is that litigation will yield to collaboration. As an example, she cited the Colorado River, where water users with competing interests and constituencies have opted to enter into collaborative agreements rather than gamble on the results of a lengthy fight in court.
“There is a path forward for the people who are using water [and] for the people who have water to come together, kind of like we do on the Colorado River, and say ‘Now that we know what the quantity of water is that we’re working with, how are we going to make this work,’” she said.
Emilia Cargill outside of the Coyote Springs Golf Club on Aug. 12, 2020. (Daniel Rothberg/The Nevada Independent)
Water infrastructure built at Coyote Springs to prepare for building homes. (Daniel Rothberg/The Nevada Independent)
A road sign advertising the Coyote Springs Golf Club. (Jeff Scheid/The Nevada Independent)
As the court battles continue, Coyote Springs remains focused on building homes.
“That’s what we do as a company,” Cargill said. “We’re not in the business of running golf courses. That’s not what we do. We’re not in the business of running a tortoise habitat. That’s not what we do. We build homes. We build communities. We build infrastructure. We build shopping centers. That’s what we do as a company. We run casinos. That’s what we do.”
And Coyote Springs has more rights to water. The groundwater is not its only source. About one hundred miles to the northeast, Coyote Springs owns ranches in Lake Valley near the small town of Pioche.
In December 2008, the state engineer approved a plan allowing Coyote Springs to export a portion of its ranch-water to the new desert community. Although the state’s order placed limits on the exportation proposal, it allowed for piping 11,300 acre-feet of water, enough water to supply tens of thousands of new homes.
But “that water wasn’t intended to be the first water used,” Cargill said.
“That water was intended to be the next water used,” she added.
Any such effort to import the Lake Valley water would be years away, requiring new permits and adding significant costs.
Yet even in Lake Valley, more than a hundred miles away from Las Vegas, the future is complicated by the past. The water authority has its own storied presence in this area.
Starting in 1989, Las Vegas water officials filed for groundwater rights and purchased ranches in eastern Nevada with the goal of building a roughly 250-mile pipeline that could supplement its Colorado River supply. Coyote Springs and the water authority even have overlapping grazing permits.
In 2008, Coyote Springs testified that its plan was to import its Lake Valley water through the Las Vegas pipeline. But after years of pushback from rural communities, tribes and environmentalists, the water authority shelved its plans for the pipeline this year, another setback for Coyote Springs.
Still, when asked if Coyote Springs was looking at Lake Valley, Cargill replied: “One fight at a time.”
Part II of this series, “New Rules,” focuses on how the problem developed and future fixes. This story was supported by a grant from The Water Desk, an independent journalism initiative based at the University of Colorado Boulder’s Center for Environmental Journalism.
Joe Davis, general manager of the Moapa Valley Water District, standing on top of a diversion dam that redirects the Muddy River on Aug. 13, 2020. (Jeff Scheid/The Nevada Independent)
OVERTON, Nev. — More than three decades ago, Joe Davis landed a part-time job installing pipes for the Moapa Valley Water District. When he took the job, his grandfather gave him a piece of advice: “Keep your nose clean and do anything you are asked.” Davis followed it.
His responsibilities soon included waking up early every Tuesday morning to buck hay for the district’s general manager, who would sell the bales in Las Vegas and return to town with pipe.
“On the way back,” Davis said, “that’s when he would pick up pipe for the community.”
Overton sits in the Moapa Valley, one of only a few rural farming areas left in Clark County, the state’s most populous county. Irrigation ditches line the road, built to serve the agricultural fields that are tucked behind homes, gas stations and stores. Alongside the town, the groundwater-fed Muddy River flows through a narrow channel toward Lake Mead, about a dozen miles away.
The Muddy River is the valley’s lifeblood, and it’s at risk.
In this area of Clark County, businesses, developers and local governments have state permits to pump large amounts of water from the ground. But using all the permitted water could cause the Muddy River to eventually shrink, dry up springs and leave long-term ecological damage.
In the area that the Moapa Valley Water District serves, water users are facing an uncomfortable future: People are going to have to use less water than they were once promised. Over the last century, state regulators handed out more groundwater rights than there was water available. Today state officials say that only a fraction of those rights can be used, which could mean cuts.
“We’ve reached the conclusion that there really isn’t as much water as we thought,” Davis said.
The situation playing out along the Muddy River is not unique across the Southwest and in the Colorado River Basin. As climate change and overuse reduce water supplies, the gap between “paper water” (the legal right to use water) and “actual water” (what’s available) is widening.
Dozens of groundwater basins in Nevada are over-appropriated, meaning there are more rights to water than there is water to go around. Starting next week, state water officials plan to hold a dozen hearings across rural Nevada on a flurry of more than 50 proposed orders meant to stop this issue from getting worse, designating numerous areas as needing additional management.
The situation playing out along the Muddy River is not unique across the Southwest and in the Colorado River Basin. As climate change and overuse reduce water supplies, the gap between “paper water” (the legal right to use water) and “actual water” (what’s available) is widening.
By appropriating so many water rights, many view the state as being at fault, issuing too many rights in a rush to develop. Others say regulators did the best they could with the data they had at the time. Science has evolved to better estimate groundwater availability, and water rights are not always guaranteed. In the West, most rights can be cutoff in times of scarcity or shortage.
In the years since he took the job laying pipe, Davis has worked his way up through the ranks to become the Moapa Valley Water District’s general manager. His job depends as much on a technical background as it does on a strong knowledge of a place and its people.
Overton, where the district is headquartered, is still a small community. The district serves about 8,500 residents over a 79 square-mile area that includes the Moapa River Indian Reservation.
Driving through the district’s service territory on a hot August morning, Davis stops to wave at customers and friends. He believes existing communities should be guarded against any drastic cuts.
Under a strict reading of Nevada water law, the district is at risk of seeing its groundwater rights cut off. It could pursue alternative supplies, but that’s a costly proposition for a small operation.
“I’m not asking for the moon,” Davis said. “I’m using this amount of water, and I know I need to maintain that amount of water. Now how do we take [that information] and make that happen?”
The exterior of the Moapa Valley Water District in Overton on Aug. 13, 2020. (Jeff Scheid/The Nevada Independent)
More rights than water
On paper, individuals, businesses and governments in the area have rights to use more than 39,700 acre-feet of water from a roughly 50,000 square-mile aquifer every year. About 9,000 acre-feet of water has been pumped in recent years, but there are proposals to increase use.
An acre-foot is the amount of water that can fill about a football field to a depth of one foot. If water users actually filled 39,700 football fields each year, the environmental consequences would be devastating.
In June, Nevada’s top water regulator, State Engineer Tim Wilson, ruled that groundwater use should not exceed a 8,000 acre-feet cap. That means, at most, only about 20 percent of all permitted water rights can be used across the expansive groundwater system.
If too much groundwater is withdrawn, Wilson ruled, it would diminish the springs that form the headwaters of the Muddy River, eventually shrinking a narrow tributary of the Colorado River. Las Vegas water officials store Muddy River water in Lake Mead to bolster their water supply.
Pumping, regulators worry, could also be devastating for the Moapa dace, an endangered fish that has evolved around the warm headwater springs that come from the groundwater.
Yet Coyote Springs is only a subplot in a larger ongoing dispute over water. A broad range of Southern Nevada players with conflicting interests own water rights in the aquifer.
The Moapa Band of Paiutes own water rights, as does NV Energy. The Mormon Church owns water rights, as do natural gas generators at the Apex Industrial Park in North Las Vegas. The Moapa Valley Water District owns water rights, as does the Southern Nevada Water Authority.
The water is used for multiple reasons: for farms, for drinking water, for power plants and for industry. Water users often cut deals with each other, but no one wants to give up their rights.
The state’s new ruling — placing a cap on the water — puts many of these rights at risk, and for everyone involved, it sets new rules for a future that uses less water than people once planned.
Irrigated land in the Moapa Valley on Aug. 13, 2020. Across the region, there are more rights to use water than there is water to use sustainably. (Jeff Scheid/The Nevada Independent)
Even in this arid land, Greg Anderson, the vice chairman of the Moapa Band of Paiutes, can tell where the water is and isn’t by looking toward the ground underneath his feet.
“You can tell where water’s at in this desert,” he said. “Even though it looks so dry, you see a few plants that are greener than others. That’s where the water’s at.”
What locals and Nevada’s statutes refer to as the Muddy River used to be called the Moapa. “Pah” means water, and Moapa means muddy water, Anderson notes. For centuries, the Southern Paiutes, or Nuwu people, relied on the river for drinking water and to irrigate crops.
“That river means a lot to our people,” he said. “That’s us.”
In the early 1800s, Spanish raids devastated the Moapa band, and Mormon settlement in the 1840s displaced the Moapa band from its territory — and its water. By 1873, President Ulysses S. Grant had taken executive action to establish a reservation that spanned more than two million acres. These lands included the Muddy River and what is now Gold Butte National Monument.
The Muddy River running through the Moapa River Indian Reservation. (Courtesy of Greg Anderson)
It took only one year for the federal government to break its word. In 1875, Congress stripped the reservation of all but 1,000 acres and relocated it so as not to interfere with any claims made by white settlers or mining speculators, according to a history compiled by the tribe’s lawyers.
Displacement in the 19th Century pushed the tribe away from the irrigable land. A history on the tribe’s website said that “people were forced to flee into the desert and farming was disrupted.”
The 20th Century would only see more development encroach upon what little land and water the federal government left the tribe. Water was quickly divided up. By 1920, the entire river was allocated in a court decree, with the tribe only getting rights to a small fraction of the water.
As more development came into the area, state water officials began issuing rights to pump groundwater across a vast 50,000 square-mile area. Over the next century, water officials with the state engineer’s office would issue far more water rights in the region than was sustainable.
“We have to use [water] for economic development,” Anderson said. “We understand that.”
But he is concerned that the overuse of the groundwater could leave a “trickle” in the river.
The history of water rights in the area provides a map of how the area developed.
Amid a flurry of industrial development and proposed municipal development in the 1980s, the amount of permitted water rights dated more than quadrupled, increasing from about 7,100 acre-feet in 1981 to 31,600 acre-feet in 1989, according to an analysis compiled by the state.
In doing so, state regulators not only issued too many rights. They double-counted them.
Extensive science, modeling and pump tests show that the groundwater in the region feeds the Muddy River and the headwater springs for the Moapa dace. The water in the ground, in many cases,isthe water in the river.
And pumping too much of it could reduce the river’s natural flow. After more than a century, state officials finally put the brakes on the problem in 2002. The state ruled that it would award no additional water rights in the area, pending the outcome of a pump test. Today state officials want to go one step further, but they must make some difficult choices.
The Reid Gardner Generating Station on Aug. 14, 2020. NV Energy still has water rights associated with the decommissioned coal plant. (Jeff Scheid/The Nevada Independent)
Old rules, new playbook
The state has several tools to fix the problem, and all of them are weighed against an ultimate hammer: curtailment. State regulators have worked to avoid curtailment, and for good reason.
Nevada’s water statutes follow a similar framework used in other Western states. That rulebook is meant to settle disputes, inevitable in a region where aridity is its defining character. The law says that those with the oldest water rights are the most protected from having their rights cut.
In cases where an area is over-appropriated or water use is unsustainable, the statutes allow state regulators to curtail water rights. A strict curtailment would cut off the newest water rights in an area to meet the state’s estimate for how much water is available.
In this case, a curtailment might mean cutting off nearly 29,000 acre-feet of water rights, rights issued after 1983, that exceed the state’s 8,000 acre-foot cap on cumulative groundwater use.
Such a move could have far-reaching effects on the economy, curtailing water that is currently being used by the Moapa Valley Water District and making it difficult for the tribe to use its water for commercial development. Such a move could also affect parts of the Apex Industrial Park.
Curtailment might sound like an orderly resolution to the problem, but it is blind to realities on the ground. In the Muddy River area, those likely to be cut off first are using most of the water.
Across the aquifer, groundwater users with greater legal protection — those before the 1983 cutoff — use about a third of the water. Groundwater users with less legal protection — those after the 1983 cutoff — account for most of the water use, according to the state’s analysis.
Nothing illustrates those challenges more vividly than a decommissioned coal-fired power plant. The former Reid Gardner Generating Station sits outside of the Moapa Band of Paiutes’ reservation land. It was built in 1965, and it required significant amounts of water to run its steam turbines.
In 2015, the plant’s owners, NV Energy and the California Department of Water Resources, paid the tribe $4.3 million to settle claims alleging coal ash pollution and Clean Water Act violations. Two years later, NV Energy announced that it had decommissioned the power plant’s last unit.
But NV Energy kept its water rights. Even with the coal plant offline, the rights remain valuable assets on the electric utility’s books to sell and lease. NV Energy’s water rights are particularly valuable because most of them predate the 1983 cutoff. Some of their rights date back to 1949.
Generally, Western water law requires that water users forfeit rights if they do not use them. In reality, it doesn’t always work this way. There are numerous loopholes to the provision. Water users are allowed to apply for extensions to keep their water right, even if they are not using it.
Micheline Fairbank, a deputy state engineer, said reconciling current use with older water rights remains an open question, one the community should be involved in answering.
Generally, Western water law requires that water users forfeit rights if they do not use them. In reality, it doesn’t always work this way. There are numerous loopholes to the provision. Water users are allowed to apply for extensions to keep their water right, even if they are not using it.
“I don’t have a crystal ball to predict how that question gets answered,” Fairbank said.
Prior Appropriation
Nevada’s water law is based on the Doctrine of Prior Appropriation. It has three main elements:
First in time, first in use: Those with water rights issued first in time have the priority to use water in times of scarcity or shortages.
Beneficial use: Water must be put to beneficial use. Acceptable beneficial uses include using the water for drinking water, agriculture, commercial activities and mining.
Water must be used: Water rights must be used and developed or the owner of a water right risks losing their water right.
In an interview this summer, Wilson, the state engineer, did not commit to how the state plans to move forward with managing the fact that there are more rights to water on paper than there is available water. In an interview, officials stressed that they favor community-driven solutions.
Until policy decisions are made, there is uncertainty about what happens next. The 1983 cutoff date itself could be called into question or changed as the state engineer’s office makes decisions about how to manage water rights in the area.
“All along, it has kind of been a two step process,” Fairbank said. “Number one, let’s establish the baseline and the science. Step two then would be the policy and management positions.”
Water users could devise a groundwater plan or what is known as a conjunctive management plan aimed at creating more flexibility about where, when and how water rights could be used.
In watersheds across the arid Southwest, including in the Muddy River basin, addressing the problem is made even more challenging because the legal systems for managing groundwater and surface water developed separately, even though the two sources of water often act as one.
Elizabeth Koebele, an assistant professor at UNR who studies water governance, says irrigators — those closest to the water — tend to understand this, but there is a disconnect with the law.
“Water users,” Koebele said, “seem to recognize that there is a connection between surface water and groundwater, and that is not matching up to how we manage these watersheds.”
Nevada’s groundwater laws are already more restrictive than neighboring states. Sean Hood, an attorney for Fennimore Craig, said Nevada started regulating groundwater long before other states like Arizona and California, which is in the early phases of managing groundwater.
“Historically, Arizona and California were like the wild wild West,” he said.
In watersheds across the arid Southwest, including in the Muddy River basin, addressing the problem is made even more challenging because the legal systems for managing groundwater and surface water developed separately, even though the two sources of water often act as one.
Yet even in a state that has long-regulated aquifers, state officials are being forced to grapple with how to claw back past appropriations in areas like the Muddy River.
Nevada statutes offer a limited set of tools, and in recent years, state water officials have tested their flexibility in rulings and decisions that seek to fix the problem. But officials are often caught between what the statute says and how the court interprets them.
Already, the state’s June ruling on the Muddy River is tied up in litigation.
In addition to imposing a cap, the state’s order changed the rules in another critical way. The order, a result of hydrologic reports and public hearings, defined a larger geographic boundary for the aquifer, changing whether many water users still have priority rights.
Among the claims pending before the court, water users have argued that the state acted in an “arbitrary and capricious” manner, ruling beyond what Nevada’s statutes allow.
In a joint-filing, lawyers for a gypsum manufacturer and a landfill at the Apex Industrial Park said the order was made “in violation of constitutional or statutory provisions.”
The Muddy River before it is diverted to a channel that runs through the Moapa Valley and into Lake Mead on Aug. 13, 2020. (Jeff Scheid/The Nevada Independent)
‘Existing communities’
Sitting inside an air-conditioned conference room at the Moapa Valley Water District on a warm August morning, Davis, the district’s general manager, is clear about his goal.
For years, Clark County has ranked as one of the fastest growing counties in the United States. But Davis said that the Moapa Valley, unlike other areas, has no ambitions for major growth. That’s not why he wants to protect the district’s groundwater rights.
“I’m not looking to expand,” Davis said in August. “I’m not looking to grow. I’m not looking to get large. We just need to make sure that we’re able to take and maintain what we have.”
“By the same token,” he added, “you can’t have a community shrink.”
Both the water district and the Moapa Band of Paiutes, the two existing communities in the area, have rights to groundwater at risk of curtailment under a strict application of the law.
“I think that an existing community has to have more standing over somebody that does not exist yet.” — Joe Davis, Moapa Valley Water District
Davis said it was important to recognize that the community has existed since the mid-1800s. His community extended even farther into the valley until the Hoover Dam created Lake Mead, which submerged the town of St. Thomas and forced its residents to resettle.
“I think that an existing community has to have more standing over somebody that does not exist yet,” Davis said, noting that other state plans have exempted municipal uses.
Until the litigation ends, it’s hard to determine what’s at stake for many water users.
Despite battling in court, the water users in the area are already tied together by countless deals and contracts. They lease water to each other. They sell water to each other. They even enter into future understandings about what could happen. In similar cases across the West, conflict can make way for collaboration — but sometimes it takes time.
“The big picture is there is less water,” Koebele said. “We need to work together more.”
In some cases, the cost of participating in litigation becomes its own barrier.
Davis said the district ended up having to change its rate structure and approve another rate increase to keep up with repairs on the system and expected legal costs.
“We haven’t seen any legal costs yet that are going to equal what’s happening right now,” he said. “It’s just astronomical, what it’s going to cost us compared to what our budget actually is.”
“It’s that you can’t afford not to,” he added. “But you can’t afford to.”
Joe Davis, the general manager of the Moapa Valley Water District, looks at infrastructure associated with a groundwater well on Aug. 13, 2020. (Jeff Scheid/The Nevada Independent)
Part III of this series, “Cutting Back,” examines possible solutions under the law. This story was supported by a grant from The Water Desk, an independent journalism initiative based at the University of Colorado Boulder’s Center for Environmental Journalism.
Mark Moyle, a Diamond Valley farmer advocating for a groundwater management plan, stands in front of a field on Aug. 25, 2020. (Daniel Rothberg/The Nevada Independent)
EUREKA, Nev. — Diamond Valley starts at the edge of Eureka, a small town in one of the most rural areas of the state. The valley stretches on for miles, and so does the aquifer beneath it, a reserve of underground water that farmers have used at unsustainable rates, year after year.
Springs started to dry decades ago. There were reports of fissures in the ground. Groundwater levels in some areas fell by more than 100 feet. The underground reservoir continues to decline by as much as two feet every year in certain areas, and that means wells could one day go dry.
Mark Moyle, who grows alfalfa in Diamond Valley, speaks in careful measures. Livelihoods are at stake. Moyle recognizes the problem. Everyone does. And he knows that cuts are coming. In recent years, Diamond Valley farmers have faced increasing pressure from the state and local ranchers to reduce use. But the state’s main tool for fixing the issue are immediate cuts that are blind to local concerns (a Diamond Valley farmer likens them to using a chainsaw for a surgery).
So Moyle and most of his neighbors started looking for alternatives.
They wanted precision and local control. Taking advantage of a new state law passed in 2011, officials gave them a green light to come up with another option. But the clock was now ticking: If the farmers failed to have a plan in effect by 2025, state regulators would be forced to slam the brakes on their overuse, an action that could shutdown most of the operations in the valley.
In recent years, Diamond Valley farmers have faced increasing pressure from the state and local ranchers to reduce use. But the state’s main tool for fixing the issue are immediate cuts that are blind to local concerns (a Diamond Valley farmer likens them to using a chainsaw for a surgery).
“We’re done,” Moyle said, describing what would happen if state regulators curtailed use. “And not only that, our life’s investment is done. You can’t re-market something that has no water.”
In 2018, after years of negotiations and discussions, the majority of Diamond Valley irrigators voted for a market-based system, governed by a local advisory board, that dictates the terms of the reductions, spreading out the water cutbacks over time and applying them across the board.
“How many people would sign up to take a financial hit?” Moyle asked during an interview earlier in August. “Well we all did, because in the long run, it’s going to be better for all of us.”
Depending on whom you talk to, the plan is an experiment in conservation — an equitable way to reduce water use — or a seismic crack in the foundation of Western water law. By forcing all irrigators to make a sacrifice and cut back, the plan deviates from a primary principle of Western water law: that those with the oldest claims to water are protected from cuts in times of scarcity.
Across the West, groundwater basins and watersheds face a similar dynamic: State regulators issued more rights to water than there is water to go around. In Nevada, water users are closely watching Diamond Valley to understand the limits of the law and the potential paths forward.
For many, the question is not whether cuts are coming but who gets cut and when? Some see the 2011 statute, the legal basis for the Diamond Valley plan, as a tool for coming up with local solutions that avoid heavy-handed regulation from the state. They say such plans mirror other efforts across the West. But how far can the local plans go? And what are the legal guardrails?
Today, the Diamond Valley plan is on hold, and its future rests on whether the Nevada Supreme Court rules it is allowed under the 2011 statute. In April, a District Court judge in Eureka agreed with a group of local ranchers who said the plan conflicts with fundamental aspects of water law.
Moyle disagrees. He said that the plan is the type of solution that the Legislature intended.
“This didn’t just happen by accident,” he said. “This was deliberate.”
The southern side of Diamond Valley on Aug. 26, 2020. Irrigators have used more water than there is water available. (Daniel Rothberg/The Nevada Independent)
Decades in the making
When Reinhold Sadler, a German immigrant and the state’s ninth governor, set foot in Diamond Valley more than a century ago, the area looked noticeably different. The value of the land was less about the water beneath the ground than the water at the surface. Sadler, a businessman turned politician, established a ranch that relied on natural springs to irrigate crops and pasture.
Sadler Ranch, under different ownership, is still operating today. Yet those springs, and many others across the valley, have dried up or are under threat of drying up. As more groundwater was used to irrigate alfalfa fields over the past four decades, less water flowed into the springs.
The issue has been well-documented since the 1960s, but the state has taken little action to fix the valley’s overuse. In 2012, Sadler Ranch was purchased by new owners from San Francisco. Since then, its owners have pressured the state in court and in hearings to address the problem.
A curtailment is an extreme measure. It would require the state to turn off the wells based on when water rights were issued. In Diamond Valley, it could mean cutting off more than half of the groundwater used each year, a move that would devastate the farming community all at once.
The issue has been well-documented since the 1960s, but the state has taken little action to fix the valley’s overuse. In 2012, Sadler Ranch was purchased by new owners from San Francisco. Since then, its owners have pressured the state in court and in hearings to address the problem.
In 2014, Sadler Ranch filed a petition to initiate proceedings for a curtailment, a state-action to impose harsh water cuts on irrigators across the valley. It created an uproar. Levi Shoda, who manages the day-to-day operations at the ranch, framed it as a necessary wake-up call for state regulators. He said they were moving too slowly to curb the valley’s overuse of its limited water.
“What good is all this water that we’re fighting for gonna be when the water is all gone?” he asked.
A curtailment is an extreme measure. It would require the state to turn off the wells based on when water rights were issued. In Diamond Valley, it could mean cutting off more than half of the groundwater used each year, a move that would devastate the farming community all at once.
By the state’s own description, curtailment by priority can be “dire” and “sudden.” Marty Plaskett, a Diamond Valley farmer, likens curtailment to giving the state a “chainsaw to do surgery with,” blind to realities on the ground, leaving irrigators without water that they used for half a century.
“If this was a problem that could have been solved easily,” he said, “it would have been done.”
For decades, curtailment has loomed over the valley, yet state regulators failed to impose cuts, allowing the problem to become progressively worse and making it harder to rip off the bandaid.
Marty Plaskett stands in front of one of his irrigation pivots in Diamond Valley on Aug. 25, 2020. (Daniel Rothberg/The Nevada Independent)
Water issues in Diamond Valley have been well-documented since the 1960s, amid a rush for land and water in the southern side of the valley. Here, where Moyle and his neighbors farm in close proximity to each other, irrigation pivots turn the valley into bright green crop circles.
Many irrigators in this area came about land and water through federal legislation known as the Desert Land Entry Act of 1887. The congressional legislation encouraged the settlement of the West with cheap public land if buyers were willing to irrigate it. Homesteading in the arid West posed challenges and, in many places, attempts often ended in failure. In Diamond Valley, the success rate was high — and so was the volume of water rights that state officials handed out.
Federal land managers and state officials knew that a water issue was brewing, and around 1962, Diamond Valley was closed off to new homesteading. But pressure, including from Sen. Alan Bible, re-opened the valley to more development,High Country News reported in 1993.
As electricity came to the valley, farmers invested heavily in infrastructure to pump water from the ground. Drillers punched wells, and the area grew into an agricultural hub in northeastern Nevada. Plaskett’s father was one of the well-drillers who made it feasible to tap into the aquifer.
“My dad drilled most of the wells here,” he said. “So I’m very in tune to the aquifer.”
In time, the valley became part of Eureka County’s social and economic fabric. Farmers sent their kids to schools in Eureka, a small town with a population of about 480 residents. Increased agricultural production also helped stabilize the county’s economy, which largely depends on mining activities that cycle in booms and busts. In 2013, Diamond Valley produced an estimated 110,000 tons of hay and alfalfa and generated about $22.4 million in farming income.
Diamond Valley is remote. It sits adjacent to a section of U.S. 50 known as the “loneliest road in America.” The highway cuts through the Great Basin, one of the least populated areas of the country. At the same time, Plaskett noted, Diamond Valley hay has been shipped all over the world. He lists the markets farmers have sold into: Kentucky, Florida, California, Saudi Arabia.
Diamond Valley hay, he said, is high-quality. Whether it’s the high elevation (the valley is at about 5,800 feet above sea level) or farming practices, “it brings buyers back every year.”
Yet the state allowed the valley to flourish on an unsustainable use of water, despite warnings that farmers were being allowed to withdraw more water than the aquifer could sustain. By the early 1980s, the effects of overuse had become so visible that the state took action — almost.
In 1982, the Nevada Division of Water Resources held at least two hearings on curtailment. At the time, a rancher, Milt Thompson, testified that groundwater use was irreparably harming his springs. Yet Diamond Valley farmers disagreed on whether a problem even existed, according to hearing transcripts. And the state opted against curtailment, allowing the problem to persist.
According to one hearing transcript, Pete Morros, then-Nevada’s top water regulator, noted in testimony that “everybody seems to be quite content and happy with the situation in Diamond Valley, with the exception of Mr. Thompson whose spring has diminished considerably.”
In 2015, state officials found themselves in a similar position. Sadler Ranch was asking the state to curtail water use in a manner that would put multiple farmers out of business. Facing legal pressure to curtail and political pressure to avoid curtailment, the state took another course.
They dusted off a 2011 law passed by the Legislature. Before 2015, it had never been used. But it was meant to give the state some breathing room in this type of predicament. The law allowed state water regulators to designate groundwater basins as a “Critical Management Area.” Once a Critical Management Area was designated, regulators were required to curtail water use after 10 years unless a majority of water users approved a localized groundwater management plan.
Diamond Valley fit the criteria for a designation.
Testing the newly-passed statute, the state gave the farmers an ultimatum: Irrigators now had until 2025 to develop a localized management plan, or they would face state-imposed cuts.
Curtailment
In Nevada and in many states across the West, water use is curtailed by priority — in the order of when the water was first put to use. Those with the oldest water rights are the last to get cut.
Here’s how “curtailment by priority” would work in Diamond Valley:
The cutoff: For most aquifers, state officials set a cutoff for the total amount of water use that is sustainable. In Diamond Valley, that cutoff is 30,000 acre-feet (an acre-foot is the amount of water that can fill an acre of land to a depth of one foot). Recent water use has hovered near 70,000 acre-feet, more than two times the current sustainable use.
The priority date: Every water right has a “priority date” that is generally tied to when the water was put to use. In a curtailment action, water rights with a priority date above the cutoff are shut off. In Diamond Valley, if the state were to “curtail by priority,” irrigators with rights that have a priority date after May 12, 1960 could be barred from using water.
The water divide: Those with water rights that have a priority date before May 12, 1960 are considered to have “senior rights.” Those with a priority date after May 12, 1960 are said to have “junior rights.” A majority of water rights in Diamond Valley are junior rights. “Seniors” are entitled to receive their whole allocation before “juniors” get a single drop. In Diamond Valley, the difference between “junior” and “senior” can be a matter of days.
‘Controlled curtailment’
Sitting at a conference table on a morning in late August, Moyle said that the farmers saw the ultimatum as an opportunity to develop a local plan to fit the needs of a majority of irrigators.
This, he said, was no easy feat. There were contentious meetings and fierce arguments among neighbors. But by the time the process started in 2014, there was also broad recognition of the problem and the need for cutbacks. The challenge — and conflicts — were in how to get there.
“There were a lot of difficult meetings,” Moyle said. “And difficult soul-searching. We tried to find the best remedy that would be best for everybody and still allow most everybody to survive.”
In 2018, a majority of water users, with a mix of senior and junior rights, ultimately voted to try a novel approach that departed from a strict application of Nevada water law. Rather than sudden curtailment, it spread out cuts over time. And in 2019, Nevada’s top water regulator signed off.
Low-elevation sprinklers hang over a field of alfalfa in Diamond Valley on Aug. 25, 2020. The sprinklers are meant to reduce water use. (Daniel Rothberg/The Nevada Independent)
The plan went into effect in 2019 after Jason King, then Nevada’s top water regulator, approved it. Following that, “most everyone did something to their sprinkler packages,” Plaskett said.
But conservation alone was not going to be enough. Some land was going to have to lie fallow. Some producers and companies started to consider alternative land uses, including solar fields.
Jake Tibbitts, Eureka County’s natural resource manager, helped facilitate the crafting of the groundwater plan, and the county supported the groundwater plan. Tibbitts often refers to the valley as the county’s “social glue.” Alternative land uses, he said, must be part of the equation.
When solar developers map out areas with good potential for solar development, Tibbitts said that Diamond Valley continually pops up. As NV Energy builds out more transmission across the state, using retired farmland for solar projects, amid water cuts, could become a viable option.
“There’s two companies already looking at Diamond Valley,” Tibbitts said.
Over the next three decades, as farmers looked to cut more than half of their current water use, more producers would be pressed to find ways to use land with less water, proponents of the plan have argued. The plan provided the incentive, and it also laid out certain cuts on a certain date, making it easier for farmers to work with lenders and evaluate the value of their property.
“All we have to do is have the cuts laid out, and people can do what they want,” Moyle said. “They’re gonna get pretty creative pretty fast. We don’t need to write a prescription for them.”
In addition to spacing out the cuts over time, the plan was notable for another reason: It required all irrigators to make a sacrifice. Where Nevada water law protects irrigators with senior rights, the plan departed from that model. It applied cuts to junior and senior rights across the valley.
Some believed this amounted to Diamond Valley writing a new water law. But Moyle argued that nothing in the 2011 statute prevented a local plan from reducing allocations for all water users. After all, he noted that a majority or irrigators, including those with senior rights, voted for it.
“From a water aspect, they had a lot to lose by signing on,” he noted.
Even though the plan distributed more shares to those with senior rights, everyone would see a substantial reduction in their allocations over the next three decades, despite the fact that the state’s water law would typically not require water users with senior rights to give up anything.
For this reason, and several others, District Court Judge Gary D. Fairman struck down the plan in April, concluding that it was “contrary to Nevada water law, laws this court will not change.”
Moyle and Plaskett, along with the state’s top water regulator, are fighting the decision in court.
Moyle serves as the president of the Diamond Natural Resources Protection and Conservation Association (DNRPCA) and Plaskett is its vice president. The group, comprising irrigators who support the groundwater plan, filed an appeal with the Nevada Supreme Court this summer.
With the lower court ruling, the plan is no longer in effect. But the clock continues ticking on the state’s ultimatum to come up with a plan or face curtailment by priority. Without a plan in place, Moyle and Plaskett said that it has fueled uncertainty. Farmers are not sure whether they should invest in conservation — new sprinklers can cost $7,500 a pivot — if state regulators might cut them off soon anyway. Lenders have also been hesitant to issue loans to farmers in the valley.
“They don’t want to get way out on their lending,” Plaskett said.
Levi Shoda, who manages Sadler Ranch, stands in front of a field on Aug. 26, 2020. Sadler Ranch is challenging the Diamond Valley plan. (Daniel Rothberg/The Nevada Independent)
Departing from the rulebook
Sadler Ranch is tucked away on the northern side of the valley, at least a 30-minute drive from most of the center pivots. Shoda, who manages the ranch, understands water law. He grew up in Carson Valley, where he owned a hay company before moving to Eureka. On a windy August afternoon, Shoda sat on a porch, looking out at cattle grazing in front of a long, empty playa.
He does not have anything against a groundwater management plan, he said. His issue is with any plan that departs from a fundamental tenet of Western water law: first in time, first in right.
Depriving senior water users of their full allocation, he said, amounts to a “taking” of their water.
“That’s my biggest problem,” he said.
The springs at Sadler Ranch, the same ones used when the ranch was developed in the late 1800s by former Gov. Sadler, give Shoda and the owners of the ranch standing to make that argument. Because the springs were developed so long ago — even before Nevada water law was written — Sadler Ranch has claims to some of the oldest water rights in Diamond Valley.
Since the plan was approved, Sadler Ranch has challenged it in court. They say the local plan allowed continued overuse for 35 years, by taking a gradual approach to solving an issue that developed over decades. State officials have awarded Sadler Ranch additional water rights to offset their loss. Still, Shoda said the springs cannot be made whole if overpumping continues.
“However this deal works out, in the end, it’s not going to be great for a lot of people,” he said. “I don’t think it’s going to be great for anybody. But again, what do you put on the flip side of that?”
“If we allow everyone to continue pumping, and then the entire basin dries up,” he said.
Springs at Sadler Ranch on Aug. 26, 2020. The state allowed the ranch to pump water to offset losses to the spring’s natural flow. (Daniel Rothberg/The Nevada Independent)
For Sadler Ranch and two other petitioners who challenged the groundwater plan, the localized solution does too little, too late. In a brief filed in District Court last year, attorneys argued that the plan “authorizes persistent, non-stop groundwater mining” from the aquifer.
Proponents of the plan view the gradual cuts as a way to reduce water use over three decades. Yet others see that as a death by a thousand cuts, prolonging the problem for decades and allowing for continued overuse when the law calls on the state to take more immediate action.
Sadler Ranch is not the only rancher pushing back. The owners of another property, also with depleted springs, joined Sadler Ranch in appealing the plan. The owners of both ranches are newcomers to Diamond Valley, having purchased the ranches only recently. It’s a fact that has raised the eyebrows of some local farmers. Why do they want all of this water — and why now?
One longtime Diamond Valley ranching family also challenged the plan in District Court. The family holds five irrigation groundwater rights with senior priority dates. A court brief filed by their attorneys said the plan would ultimately leave them with about 29 percent of their allocations, despite having senior water rights and having lived in the valley since the 1860s.
Despite the plan’s approval by a vote of irrigators, “popularity of a plan does not overrule priority of right,” attorneys for the family told the District Court. The plan, they wrote, should have considered other options, not only a market whereby water rights are turned into shares.
The brief argued that there were other options to create a management plan while protecting the rights of senior water users. For instance, a groundwater plan could have created a basin-wide fee to raise funds that would have compensated senior water users if they reduced their use. Or water users could create a similar market for junior water users that senior users could sell into.
Moyle said that irrigators looked at other options, but he strongly believes that the groundwater plan, as written, is the one that works best for the valley. He said that even gradual reductions would improve the water situation. The plan got community buy-in, even from senior water right users with the most to lose. And it gave the water users “local control” over the valley’s fate.
Other options, he said, were “discussed millions of times in millions of ways.”
The issues in Diamond Valley persist in other parts of the West. Many states rely on the “first in time, first in right” doctrine to settle disputes over water. Other parts of the West have dealt with issues around groundwater in a variety of ways. Courts and legislatures in different states have interpreted the doctrine in different ways, but exceptions to the doctrine are not unprecedented.
In Kansas, for instance, the state has allowed groundwater users to develop local plans to solve overuse, and in some cases, the plans have departed from a strict adherence to “first in time, first in right” rules. Still, in Nevada, courts have been strict about not deviating from the doctrine, and Fairman, the District Court judge, said the Legislature did not intend to make an exception.
Eureka County, with a population of about 2,030 residents, on Aug. 25, 2020. The county has defended the groundwater plan. (Daniel Rothberg/The Nevada Independent)
Waiting for the courts
Two-hundred-and-fifty miles away from Carson City, Moyle shuffled through a pile of papers and fished out a copy of Nevada’s water statutes. Moyle, a farmer in Diamond Valley, pointed to one line that he had underlined in blue ink. The interpretation of this line, Moyle said, could dictate his community’s future and whether he can continue farming in the valley. He disagreed with Fairman’s ruling, and he believes this line validates the groundwater plan. The line says that the state must curtail by priority unlesslocal water users come up with an alternative method.
“There were hours spent on this sentence at that time,” Moyle said.
The plan now hinges on the Nevada Supreme Court’s interpretation of the language. But the state is backing Moyle’s interpretation of the law — that a statute passed by the Legislature in 2011 lets local communities develop plans that depart from a strict application of water law.
In a brief filed with the Supreme Court, Deputy Attorney General James Bolotin argued that the Legislature, by allowing local plans, intended to provide an alternative to curtailment by priority.
“The purpose of the [groundwater management plan] statute is to provide a last resort for those basins in the most dire of straits to work together as a community to create a plan that reduces groundwater pumping to levels acceptable to the state engineer to avoid curtailment,” he wrote.
The state engineer serves as Nevada’s top water regulator. For state regulators, a court ruling that strikes down the plan could leave one less option on the table for managing water. Diamond Valley, in many ways, is a test case. It is the first time the state has allowed irrigators to develop a local groundwater plan under the 2011 statute, which did not offer many specific guidelines.
Mark Moyle points to a circled word in Nevada’s water statutes on Aug. 25, 2020. (Daniel Rothberg/The Nevada Independent)
Without a valid plan, curtailment could be coming for Diamond Valley. Whether the Supreme Court approves the plan or not, the valley’s irrigators still face a 2025 deadline for curtailment.
This fact could eventually send the irrigators back to the drawing board.
Throughout the last six years, Tibbitts, Eureka County’s natural resources manager, has helped guide the creation of the plan, keeping irrigators informed of developments through an email list. As the plan has made its way through the courts, Tibbitts has continued to keep them apprised.
“It’s kind of on them to decide what to do,” he said during an interview in August. “And so far, there really hasn’t been any movement by the farmers to come back to the drawing board.”
If no plan is in place by 2025, Tibbitts said there are still “unanswered questions” about how a curtailment would work. From Tibbitts’ perspective, the dividing line between junior and senior rights in Diamond Valley is not all that useful in reality. Because of the rush to develop water in the 1960s, the majority of irrigators have an assortment of junior and senior water rights. His question is this: “Is there something we can do as a community that everyone can live with?”
But there is no doubt that the situation is tense.
“It’s tense for me, and I come to work every day and I get a paycheck every two weeks,” Tibbitts said. “These guys, their livelihoods are on the line. A lot of them invested everything here with their families. They have nothing else other than their farm in Diamond Valley.”
Vail Resorts Inc., one of the largest financial contributors to Colorado’s cloud seeding program, has dropped out this year, leaving a major hole in the program’s budget.
Cloud seeding is a practice in which silver iodide pellets are sprayed into storm clouds in an effort to trigger more snowfall and ultimately, in the spring, more snowmelt to feed the state’s streams.
Vail has been participating in the program for more than 40 years, state officials said.
Hard-hit by the pandemic, the ski resort company had planned to contribute $300,000 to this year’s effort, roughly 20 percent of the nearly $1.5 million the state spends annually, according to the Colorado Water Conservation Board (CWCB), which oversees the program.
Vail officials did not respond to a request for comment, but their most recent financial statements indicate that the company’s revenues dropped nearly 70 percent for its latest fiscal year as the Covid-19 pandemic forced it to close its resorts early last spring.
According to its financials, revenues for its 2020 fiscal year ending July 31 came in at $503.3 million, down from $706.7 million for the prior year.
“We’re all hoping this is just a temporary suspension in funding from Vail,” said Andrew Rickert, who oversees the cloud seeding program for the CWCB. “Vail is the oldest partner we have in Colorado. They are very serious about the program, but no one is immune to these economic hardships.”
In addition to Vail, the cloud seeding program receives cash from several Lower Colorado River Basin states, who are interested in helping do anything they can to boost water supplies in the Upper Colorado River Basin, on whose flows they rely.
The state and several Front Range water utilities, including Denver Water, the Northern Colorado Water Conservancy District and Colorado Springs Utilities, also help pay for the work.
This year the CWCB will oversee six permitted cloud seeding operations that span the state, from Durango to Winter Park and beyond. The operations are sited in areas most likely to produce snow and aid rivers.
Among the largest of these is a permit operated by the Colorado River District, which includes Grand, Summit, Eagle and Pitkin counties, according to Dave Kanzer, deputy district engineer for the Glenwood Springs-based water agency.
Vail’s cloud seeding program is nested within that area and its annual $300,000 contribution represents more than half the money typically spent in that four-county region, Kanzer said. If additional funding isn’t found, fewer cloud seeding generators will operate there this season.
“It’s a challenging time with respect to Covid-impacted budgets,” Kanzer said. “The overall program is alive and well, but it is a topic of concern.”
Kanzer and CWCB Director Becky Mitchell said the state is actively reaching out to other entities for additional funding for this year’s work, including states in the Lower Colorado River Basin and Front Range utilities.
As the current drought continues, forecasts for the winter indicate that the southern part of Colorado is likely to see light winter snows, while the northern part of the state is likely to see heavier accumulations. Overall, the state has a long way to go to make up for the dry summer and fall.
How much new snow and water seeding clouds actually produces has been difficult to detect, although scientists recently have produced studies indicating it can create new snow.
“Our scientists indicate we can increase water supplies by about 5 percent on an annual basis, with increased snowfall of 5 to 10 percent, although it’s highly variable,” Kanzer said.
Colorado and other Upper Colorado River Basin states have long used cloud seeding as a way to boost water supplies, and with this year’s drought it’s more important than ever that additional water be generated if possible.
“It’s especially acute coming after a pretty dry 2020,” Kanzer said.
“But we’re cautiously optimistic. As the year plays out we will try to carefully manage the resources that we have. I’m not optimistic that we will be able to fill the entire gap. But if we came up with a third [of the money lost], that will be a success in my mind.”
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at jerd@wateredco.org or @jerd_smith.
This story originally appeared on Fresh Water News, an independent, non-partisan news initiative of Water Education Colorado. WEco is funded by multiple donors. Its editorial policy and donor list can be viewed at wateredco.org.
Scenes from the Seeded and Natural Orographic Wintertime Clouds: The Idaho Experiment (SNOWIE) project, which was undertaken in Idaho’s Payette Basin in winter 2017. (Credit: Joshua Aikins)
By Heather Sackett
Due to budget shortfalls, Vail Resorts has pulled this winter’s funding for its cloud seeding program — the longest-running in the state at 44 years — potentially reducing the amount of water flowing down the Colorado River this spring.
According to a November report from Colorado Water Conservation Board Director Rebecca Mitchell, due to economic challenges associated with the COVID-19 pandemic, Vail Resorts was forced to suspend all funding for cloud seeding for the 2020-21 season. This has resulted in a $300,000 loss of funding for cloud seeding activities over the central Rocky Mountains.
While this is bad news for skiers, it also means a challenge for western water managers who count on cloud seeding to increase water supplies by increasing snowfall in the mountainous headwaters of the Colorado River and its tributaries. While ski resorts tend to focus their cloud seeding on increasing early-season snow, water managers tend to choose the best storms throughout the season and boost those.
According to Mitchell’s report, the loss of Vail’s cloud seeding program severely reduces the ability to augment and increase water supplies.
“This recent decision has put managers of the CCMRB in a very difficult position as they endeavor to meet the needs of drought recovery,” Mitchell’s report reads.
Vail Resorts did not respond to requests for comment.
Colorado water managers and ski resorts use remote cloud seeding generators like this one to boost a storm’s snowfall. This year Vail Resorts cut its $300,000 program, leaving some water managers worried it could result in decreased snowpack and streamflows.
Colorado water managers and ski resorts use remote cloud seeding generators like this one to boost a storm’s snowfall. This year Vail Resorts cut its $300,000 program, leaving some water managers worried it could result in decreased snowpack and streamflows. (Credit: Western Weather Consultants)
‘A significant loss’
Cloud seeding uses a network of ground-based generators throughout the permit area to disperse silver iodide particles into clouds, where ice crystals form on them and fall to the ground as snow. Colorado ski areas and water managers on both the Western Slope and Front Range have been using cloud seeding for decades to enhance snowpack and streamflows. The cloud seed generators in the CCMRB area are operated by Durango-based Western Weather Consultants.
Water managers see cloud seeding as an important tool for increasing water supply in times of drought. A study released earlier this year proved that cloud seeding can boost snowfall across a wide area under the right conditions. Weather modification programs were one of the elements included in the Drought Contingency Plan, signed by the Colorado River basin states in 2018.
“It’s one of the few ways to physically increase water supplies,” said Dave Kanzer, deputy chief engineer for the Colorado River Water Conservation District. “This is one of the legs of the stool. When we are looking at supply and demand, this is the supply side.”
Kanzer said that a statistical comparison over 15 years shows a 2-5% annual increase in snowfall in basins that use cloud seeding over those that don’t. Although it’s difficult to determine the exact amount of extra snow that cloud seeding generates, it could equal up to 80,000 acre-feet of water within the CCMRB permit area, Kanzer said.
Since Vail’s program represents about half of this, one could expect any snow and water generated to also decrease by half this year.
“We have lost about half of our effectiveness,” Kanzer said. “It’s a significant loss to cloud seeding within our permit area.”
The CCMRB program has an annual budget of about $220,000 to $250,000, Kanzer said, with contributions from the River District, the CWCB, the Front Range Water Council and districts in the lower basin that supply water.
CWCB officials say they are still trying to find replacement funding and have been talking with Front Range water providers, including Denver Water. Spokesperson Todd Hartman said Denver Water currently provides $12,400 as part of the Front Range Water Council’s $70,000 contribution.
“The FRWC and Denver Water are aware of the reduction from Vail and members are discussing how and whether to address that,” Hartman said in an email.
Three water providers in the lower basin states — Central Arizona Water Conservation District, Southern Nevada Water Authority and the Metropolitan Water District of Southern California — contributed $438,000 this year to cloud seeding programs across the upper basin, which also includes Wyoming, Utah and New Mexico.
CWCB Weather Modification Program Manager Andrew Rickert said it’s still too early in the season to know how Vail’s move might affect snowpack and streamflows.
“We just have no idea what kind of season we could have in front of us,” Rickert said. “We could have storms that are efficient enough not to need cloud seeding. It’s really just up in the air as to how this is going to affect water supplies for next year.”
Aspen Journalism is a local, nonprofit, investigative news organization covering water and rivers in collaboration with The Vail Daily and other Swift Communications newspapers. This story ran in the Nov. 28 edition of The Vail Daily and the Nov. 30 edition of The Aspen Times.
