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The Supreme Court just shriveled federal protection for wetlands, leaving many of these valuable ecosystems at risk

By
The Conversation US
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Many ecologically important wetlands, like these in Kulm, N.D., lack surface connections to navigable waterways.
USFWS Mountain-Prairie/Flickr, CC BY

By Albert C. Lin, University of California, Davis

The U.S. Supreme Court has ruled in Sackett v. EPA that federal protection of wetlands encompasses only those wetlands that directly adjoin rivers, lakes and other bodies of water. This is an extremely narrow interpretation of the Clean Water Act that could expose many wetlands across the U.S. to filling and development.

Under this keystone environmental law, federal agencies take the lead in regulating water pollution, while state and local governments regulate land use. Wetlands are areas where land is wet for all or part of the year, so they straddle this division of authority.

Swamps, bogs, marshes and other wetlands provide valuable ecological services, such as filtering pollutants and soaking up floodwaters. Landowners must obtain permits to discharge dredged or fill material, such as dirt, sand or rock, in a protected wetland.

This can be time-consuming and expensive, which is why the Supreme Court’s ruling on May 25, 2023, will be of keen interest to developers, farmers and ranchers, along with conservationists and the agencies that administer the Clean Water Act – namely, the Environmental Protection Agency and the U.S. Army Corps of Engineers.

For the last 45 years – and under eight different presidential administrations – the EPA and the Corps have required discharge permits in wetlands “adjacent” to water bodies, even if a dune, levee or other barrier separated the two. The Sackett decision upends that approach, leaving tens of millions of acres of wetlands at risk.

 

The U.S. has lost more than half of its original wetlands, mainly due to development and pollution.

The Sackett case

Idaho residents Chantell and Mike Sackett own a parcel of land located 300 feet from Priest Lake, one of the state’s largest lakes. The parcel once was part of a large wetland complex. Today, even after the Sacketts cleared the lot, it still has some wetland characteristics, such as saturation and ponding in areas where soil was removed. Indeed, it is still hydrologically connected to the lake and neighboring wetlands by water that flows at a shallow depth underground.

In preparation to build a house, the Sacketts had fill material placed on the site without obtaining a Clean Water Act permit. The EPA issued an order in 2007 stating that the land contained wetlands subject to the law and requiring the Sacketts to restore the site. The Sacketts sued, arguing that their property was not a wetland.

In 2012, the Supreme Court held that the Sacketts had the right to challenge EPA’s order and sent the case back to the lower courts. After losing below on the merits, they returned to the Supreme Court with a suit asserting that their property was not federally protected. This claim in turn raised a broader question: What is the scope of federal regulatory authority under the Clean Water Act?

Homes line the edges of a river.
Housing encroaches on Caloosahatchee River wetlands in Fort Myers, Fla.
Jeffrey Greenberg/Universal Images Group via Getty Images

What are ‘waters of the United States’?

The Clean Water Act regulates discharges of pollutants into “waters of the United States.” Lawful discharges may occur if a pollution source obtains a permit under either Section 404 of the act for dredged or fill material, or Section 402 for other pollutants.

The Supreme Court has previously recognized that the “waters of the United States” include not only navigable rivers and lakes, but also wetlands and waterways that are connected to navigable bodies of water. But many wetlands are not wet year-round, or are not connected at the surface to larger water systems. Still, they can have important ecological connections to larger water bodies.

In 2006, when the court last took up this issue, no majority was able to agree on how to define “waters of the United States.” Writing for a plurality of four justices in U.S. v. Rapanos, Justice Antonin Scalia defined the term narrowly to include only relatively permanent, standing or continuously flowing bodies of water such as streams, oceans, rivers and lakes. Waters of the U.S., he contended, should not include “ordinarily dry channels through which water occasionally or intermittently flows.”

Acknowledging that wetlands present a tricky line-drawing problem, Scalia proposed that the Clean Water Act should reach “only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right.”

In a concurring opinion, Justice Anthony Kennedy took a very different approach. “Waters of the U.S.,” he wrote, should be interpreted in light of the Clean Water Act’s objective of “restoring and maintaining the chemical, physical, and biological integrity of the Nation’s waters.”

Accordingly, Kennedy argued, the Clean Water Act should cover wetlands that have a “significant nexus” with navigable waters – “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”

Neither Scalia’s nor Kennedy’s opinion attracted a majority, so lower courts were left to sort out which approach to follow. Most applied Kennedy’s significant nexus standard, while a few held that the Clean Water Act applies if either Kennedy’s standard or Scalia’s is satisfied.

Regulators have also struggled with this question. The Obama administration incorporated Kennedy’s “significant nexus” approach into a 2015 rule that followed an extensive rulemaking process and a comprehensive peer-reviewed scientific assessment. The Trump administration then replaced the 2015 rule with a rule of its own that largely adopted the Scalia approach.

The Biden administration responded with its own rule defining waters of the United States in terms of the presence of either a significant nexus or continuous surface connection. However, this rule was promptly embroiled in litigation and will require reconsideration in light of Sackett v. EPA.

The Sackett decision and its ramifications

The Sackett decision adopts Scalia’s approach from the 2006 Rapanos case. Writing for a five-justice majority, Justice Samuel Alito declared that “waters of the United States” includes only relatively permanent, standing or continuously flowing bodies of water, such as streams, oceans, rivers, lakes – and wetlands that have a continuous surface connection with and are indistinguishably part of such water bodies.

None of the nine justices adopted Kennedy’s 2006 “significant nexus” standard. However, Justice Brett Kavanaugh and the three liberal justices disagreed with the majority’s “continuous surface connection” test. That test, Kavanaugh wrote in a concurrence, is inconsistent with the text of the Clean Water Act, which extends coverage to “adjacent” wetlands – including those that are near or close to larger water bodies.

“Natural barriers such as berms and dunes do not block all water flow and are in fact evidence of a regular connection between a water and a wetland,” Kavanaugh explained. “By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”

The majority’s ruling leaves little room for the EPA or the Army Corps of Engineers to issue new regulations that could protect wetlands more broadly.

The court’s requirement of a continuous surface connection means that federal protection may no longer apply to many areas that critically affect the water quality of U.S. rivers, lakes and oceans – including seasonal streams and wetlands that are near or intermittently connected to larger water bodies. It might also mean that construction of a road, levee or other barrier separating a wetland from other nearby waters could remove an area from federal protection.

Congress could amend the Clean Water Act to expressly provide that “waters of the United States” includes wetlands that the court has now stripped of federal protection. However, past efforts to legislate a definition have fizzled, and today’s closely divided Congress is unlikely to fare any better.

Whether states will fill the breach is questionable. Many states have not adopted regulatory protections for waters that are outside the scope of “waters of the United States.” In many instances, new legislation – and perhaps entirely new regulatory programs – will be needed.

Finally, a concurring opinion by Justice Clarence Thomas hints at potential future targets for the court’s conservative supermajority. Joined by Justice Neil Gorsuch, Thomas suggested that the Clean Water Act, as well as other federal environmental statutes, lies beyond Congress’ authority to regulate activities that affect interstate commerce, and could be vulnerable to constitutional challenges. In my view, Sackett v. EPA might be just one step toward the teardown of federal environmental law.

This is an update of an article originally published on Sept. 26, 2022.The Conversation

Albert C. Lin is Professor of Law at the University of California, Davis

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

Farmers weigh tough choices as uncertain water future looms

By
New Mexico in Depth
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LOS LUNAS, NEW MEXICO - SEPTEMBER 6, 2022: George Torres, market manager for the Los Lunas Farmers' Market, assists customers at the SNAP table at the market in Los Lunas, NM on September 6, 2022. CREDIT: Adria Malcolm for New Mexico In Depth
LOS LUNAS, NEW MEXICO – SEPTEMBER 6, 2022: George Torres, market manager for the Los Lunas Farmers’ Market, assists customers at the SNAP table at the market in Los Lunas, NM on September 6, 2022. CREDIT: Adria Malcolm for New Mexico In Depth

By Elizabeth Miller

Sitting at his booth at the Bosque Farms Growers Market, George Torres greeted customers all morning one Saturday last year. Many he knew by name and asked about their harvest, the weather, the water. All around him, vendors sold vegetables, milk, eggs, cookies, cut flowers, and seedlings. One farmer dropped off a bundle of radishes, saying, “That’s all I have yet.” 

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As the July day temperature climbed, another asked Torres to “Turn off the furnace.”  He asked how things were going, and she made a dismissive “Pfffttt.” None of the beets or spinach germinated. It was too hot. 

Torres’ wife, Loretta, was the gardener, not George. She coaxed produce that tasted like small miracles from their backyard.  But he helped her run the markets in Los Lunas starting in 2009 and in Bosque Farms since 2015. She had joined a master gardeners’ group in Los Lunas, and thought the community would benefit from a growers’ market. She drove to Santa Fe to meet with the New Mexico Farmers’ Marketing Association, then organized a community meeting that drew about a hundred people to talk about launching a market, Torres recalled. In April of last year, she made a hanging flower basket for a Saturday market, then began feeling unwell. Torres took her to the hospital in Albuquerque. By Tuesday, she was gone.

“I’ve been maintaining the farmers’ market because I promised her I would,” Torres said of how he spends his Saturday mornings, his eyes wet.

Loretta didn’t want farmers in a situation where they couldn’t sell what they managed to grow amid low water years, hail damage, and insect infestations. She set up the farmers’ market to support them, but also made sure the market supported the community.

A yellow banner at the front of Torres’ table declared “Get your tokens here.” Many of those who stop by carry either Supplemental Nutrition Assistance Program (SNAP) cards that double their dollars for fresh produce, through a program run by the marketing association, or vouchers from the FreshRx program, through which doctors “prescribe” produce from the market for people with diet-related illnesses.

The “Double up” program, with federal, state, and charitable contributions, tallied 6,000 families benefiting this year, while 600 patients were enrolled in FreshRx, a number expected to reach 1,000 next summer.

“And none of it works without water,” Torres said.

The market would disappear if the irrigation ditches and groundwater wells farmers use ran dry because they would have no produce to sell. Last year, some feared that might happen. Irrigation water arrived late, and ran intermittently. The river dried farther north into Albuquerque than it had in decades. If the rain hadn’t come, irrigation water wouldn’t have, either. 

Many farmers use groundwater wells, rather than surface water from the river, but the system intertwines. Surface water recharges groundwater, so straining the first diminishes the second. (Just ask Texas—which sued New Mexico in 2013 for farmers’ groundwater wells draining the Rio Grande of water owed to lower Rio users.)

The Rio Grande is the fifth-longest river in North America and its basin is home for more than 10.4 million people. Streamflow scenarios through 2099 project a wide range of wet and dry conditions compared to average historic flows, which suggests an uncertain future for water. Overexploitation of water in the Southwest is moving the region toward severe water stress, with growing competition between municipal and agricultural users moving into view.

“Viability of agricultural production is in question over the long-term,” Mike Hamman, state engineer, said at the 2022 Middle Rio Grande Water Advocates annual conference.

As in, whether or how much farmers will be able to continue to produce crops, from chile to pecans. 

Andy Emeanuwa and his son Stephen Emeanuwa of EMS Farms package greens at the farmers’ market in Corrales, NM on November 6, 2022. CREDIT: Adria Malcolm for New Mexico In Depth
CORRALES, NEW MEXICO – NOVEMBER 6, 2022: Andy Emeanuwa and his son Stephen Emeanuwa of EMS Farms package greens at the farmers’ market in Corrales, NM on November 6, 2022. CREDIT: Adria Malcolm for New Mexico In Depth

The Middle Rio Grande Conservancy District (MRGCD), which oversees delivery of water to farmers through a web of irrigation ditches between Cochiti and Elephant Butte dams, last year warned farmers to be ready for water to turn on at any hour of any day as their turn came up in line and to be prepared for it not to turn on at all for lengthy stretches. The uncertainty rocked an already tenuous business; farmers came to district meetings asking how they could plant chiles knowing they’d need water every three or four weeks and that water might not come.

The irrigation district has “turned into the evil wizard of Oz,” said Bonnie Gonzales, who farms and manages the Corrales Growers’ Market. She moved to Corrales in 1986 to raise a family, and wanted to grow her own food. Her garden still feeds her family, and now, she also grows flowers to sell on a farm that depends on groundwater wells she knows the river recharges. If that water stops coming, “Where do we go? … And at the end of the day, our food is at risk.”

Gonzales doesn’t just mean what she eats. She means food for the 4,500 customers who come by on busy Sundays to buy from a market that peaks with about 40 vendors in August. The market saw $800,000 in sales in 2021. She and Russell Trujillo, who owns Corrales Classic Farms and sells garlic, onions, tomatoes, chile, sweet potatoes, and carrots in the booth next to Gonzales’, riffed off one another.

“The governor has no idea what’s going on,” Trujillo said.

“No amount of SNAP benefit is going to save these children if we don’t have food or water,” Gonzales said. 

Anyone who doesn’t know this river dries out, changes course, and generally does what it wants to do hasn’t been paying attention, they both said.

“The river has run dry, I don’t know how many times since I’ve been here,” Trujillo said. He moved to the area in 1982, and has kept a garden, at least, since then. All five of his kids have worked at the farm and at the market, and now, he hopes his grandkids will too: Last spring, he started the youngest planting beans.

Last summer, an abundant monsoon eased a forecast for extensive drying. Still, Anne Marken, water operations division manager for the conservancy district, stood up meeting after meeting to tell the board that, without more rain, the river might just barely have enough water to meet the “prior and paramount” demands of the pueblos. In conclusion at a July meeting, she said, “I’ll say, as usual, pray for rain.”

That’s familiar advice to Cecilia Rosacker, executive director of the Rio Grande Agricultural Land Trust, an organization founded at her kitchen table by fellow farmers, ecologists, and conservationists interested in protecting farms and riparian ecosystems. She’s a New Mexico native who grew up on a farm, started the Socorro Farmers’ Market, and now operates a 30-acre organic farm in Polvadera, most of it pasture for raising beef, plus a few acres in chile and mixed vegetables. She recalls decades of cautions that the snowpack wasn’t good and that water would run out.

“I remember the old guys saying, you just keep your head down and keep doing what you’re doing, and you pray for rain, and it almost always comes,” Rosacker said. She’s heard farmers asked if they consider not planting, given dire forecasts: “You can’t sit it out, and you have all this invested in land and equipment and what would you do? … You have two choices if you don’t keep farming: you sell the water rights or you sell the land. So you keep trying and trying and hoping and praying.”

She struggled to decide what to do last year, she said, and considered joining a program that compensates farmers $425 per acre they don’t plant. Farmers fallowed three times as many acres  in 2022 compared to 2021. The Office of the State Engineer secured a special appropriation for $15 million to support that program. 

She chose not to: “I live on my farm and I didn’t want to be in the middle of brown dirt field, and I see how the wildlife benefits from me keeping it green.”  She’d also just invested $10,000 in her well, and so thought, “You might as well get in the game, roll your dice, and see what you got.”

It’s always been a gamble, but it feels like, with the drought, the odds are stacked against farmers. Before the monsoon rains came last year, running her well meant paying for diesel at more than $6 a gallon. What water came down the ditch arrived in “dribbles.” One week, a field that’s usually done in an hour took 10 hours to water.

“And the next day, the rain started, and I haven’t watered since,” she said in July. “That rain was a huge relief. But we also know that any water that’s in the ditches right now, any water that we’re getting is dependent solely on rain, and if the rain doesn’t come, we’re done. So farmers do a lot of praying.”

Jane Sallee of Bar Star Family Gardens assists customers at the farmers’ market in Corrales, NM on November 6, 2022. CREDIT: Adria Malcolm for New Mexico In Depth
CORRALES, NEW MEXICO – NOVEMBER 6, 2022: Jane Sallee of Bar Star Family Gardens assists customers at the farmers’ market in Corrales, NM on November 6, 2022. CREDIT: Adria Malcolm for New Mexico In Depth

Farmers often take the brunt of the complaints about water use; irrigated agriculture accounts for 76% of water use in the state, including 1.2 million acre feet of surface water and 1.1 million acre feet of groundwater, according to 2015 numbers from the Office of the State Engineer. The next largest user group is the public water supply, which used 9% of total withdrawals, with 87,399 acre feet of surface water, and 196,758 acre feet of groundwater.

But those complaints discount the side benefits of irrigated land, like open, green spaces and wildlife, Rosacker said. Drip or sprinkler irrigation systems where water is more conservatively applied to crops might create green spaces, but flood irrigated land, where farmers open the gates and let water flow over fields, comes with unique benefits.

Hundreds of bird species migrate through the Middle Rio Grande, and they rely on riparian habitat along the Rio, including flood-irrigated agricultural lands that function like wetlands. When she wants to check on her watering, she doesn’t search the fields, she just looks for the line of birds: “The ibis are right there, where the water is. And Audubon will tell you, if farms go away, we will lose birds. If flood irrigation goes away, we will lose birds.” (It’s true: Audubon staff do say that.) 

More water-efficient systems like drip irrigation systems would cut off those wetlands.

The way water rights are allocated in the Southwest also discourages conservation, because using less water than your water right allows could see that right lowered for coming seasons.

“People get scared, they don’t want to lose their water right, and so they’ll plant something that’s extremely inefficient,” said Stephanie Russo Baca, a livestock grower who chairs the board for the Middle Rio Grande Conservancy District.

Getting around that would require legislation to revise the “use it or lose it” clause built into water rights.

There are other shifts farmers could make to conserve water. 

They could use technology to help, like leveling fields so water moves more efficiently through them, and using soil sensors to determine actual soil moisture. But they might also change what they grow: some crops that are planted every year allow farmers the flexibility to skip a growing season and “fallow” the field, or let it rest and the water it would have consumed flow on to other uses in dry years. Others—like orchards—can’t be.

Russo Baca raises rough stock, or bucking bulls, and when water drops, their fields produce less hay. One field that typically yields 100 bales recently put out just 35. It’s easier on her back, she said, but tough on her pocketbook, as hay prices have increased. The result means she has to keep fewer livestock.

“You start butchering them because you can’t afford to feed them,” she said. “Which is sad in a way—you breed up these animals and you have these heifers and want to see how they turn out, but you can’t feed them, so you end up eating them, and then you don’t have that breeding stock.”

The conservancy district doesn’t dictate how people farm, “nor would we want to,” Russo Baca said, and doesn’t prioritize who gets water first, other than the water rights for pueblos. As long as the water is going to “beneficial use”—a crop, livestock, or instream flows for wildlife—then shortages are just shared among everyone.

“We can’t determine if one crop is better than another,” she said. “But is that something that needs to change?”

If it did, that would also require new legislation. And would almost certainly prompt revisiting some of the state’s high-value crops, like pecans, which can require 200 gallons of water each day.

“Maybe you really should consider in the future, hey, let’s plant a dryland crop that’s going to do well here?” she said.

To Rosacker, it’s time to step back and look at the bigger picture: “I think at some point the West is going to have to realize that we’re past capacity.”

This article was supported by The Water Desk, an independent journalism initiative based at the University of Colorado Boulder’s Center for Environmental Journalism.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

Diverting the Rio Grande into a grown-over, decades-old canal could cut New Mexico’s water debt

By
New Mexico in Depth
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A man-made channel built decades ago to expedite Rio Grande waters to Elephant Butte still exists, parallel to the Rio Grande. Credit: Bella Davis.
A man-made channel built decades ago to expedite Rio Grande waters to Elephant Butte still exists, parallel to the Rio Grande. Credit: Bella Davis.

By Elizabeth Miller

Decades ago, Norm Gaume, a water advocate, paddler, and former director of the Interstate Stream Commission, hauled a canoe to central New Mexico, thinking he’d float down the Rio Grande through the Bosque Del Apache National Wildlife Refuge. But when he arrived, he found no water in the river.

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“None,” he said. “Because it was all in the Low-Flow Conveyance Channel.”

The channel is an obscure chapter in New Mexico’s water history that harkens to the 1950s, when New Mexico faced a growing water debt to Texas and needed to move water downstream more efficiently. The best way, they determined, was to route the water away from the riverbed into a 70-mile, rock-lined, narrow channel that would speed it downstream.

The river flowed into the engineered channel beginning just above Socorro for two decades, until its operation was suspended in the early 1980s. 

Even decades later, groundwater seeps and overflow from farms spill into it, so it’s possible to stand on a bridge and watch the flow of what is essentially an irrigation ditch that once held an entire river.  While the Rio Grande meanders red and muddy through sandbars, the channel is uniformly deep and the water in it swift. Willows, cattails, and tamarisk have grown along the channel’s banks and, beyond the gravel service road that frames it, mature cottonwoods. 

The channel might have remained only an engineering artifact from the mid-20th century, an era when people expected to be able to dominate nature. But New Mexico once again owes Texas a massive water debt, so water managers are considering resurrecting the original purpose of the channel.

Diverting water from the Rio Grande to the channel would move it more easily to the state’s southeastern neighbor, satisfying legal obligations from an 85-year-old compact between New Mexico, Texas and Colorado. 

But the era of dominating nature is gone. The Endangered Species Act, with its protection of a fish species called the Rio Grande silvery minnow, blocks diverting all of the river to the channel as water managers’ predecessors did. When and how much they divert will have to be done with that finger-length fish in mind. 

Still, environmentalists worry water managers won’t get the balance right, particularly as climate change is creating a hotter, drier Southwest, diminishing the amount of water flowing in a river that’s already over-taxed. The move, environmentalists say, could compromise habitat for some of the state’s threatened and endangered species, in addition to dewatering what some consider one of the wildest sections left of the Rio Grande. Some fret that the state is again failing to plan holistically for a future that includes rivers, and a bosque of cottonwood trees that people love. 

Cottonwoods in the Rio Grande bosque turn vivid yellow each fall. Credit: Marjorie Childress
Cottonwoods in the Rio Grande bosque turn vivid yellow each fall. Credit: Marjorie Childress

Problems with the Rio Grande running short of water began almost as soon as New Mexico, Colorado and Texas signed the compact that divided the river’s flow among the states in 1938. In the early 1940s, high water years created a swampy wetland and string of ponds between muddy swells for miles at a time above Elephant Butte Reservoir. The river ceased running downstream, and deliveries to Texas dwindled.

By 1953, water owed to Texas neared 500,000 acre feet (an acre foot is the amount of water needed to cover one acre of land one foot deep, or about seven times the amount of water used annually by the average Albuquerque resident). So the U.S. Bureau of Reclamation built the Low-Flow Conveyance Channel, and for most of the 1960s and 1970s, the entire river was re-routed into the channel most of the time. By steering around a thirsty riparian area, the channel saved an estimated 60,000 acre feet of water each year. The state’s water debt to Texas was eliminated by 1972. 

The compact measures water delivered by Colorado to New Mexico at the state line, but water that’s designated for Texas from New Mexico is measured just above Elephant Butte, more than 100 miles upstream of Texas. 

Problems getting river water to Elephant Butte have re-emerged. The reservoir’s dam backs up the river for 40 miles. Where water slows, sediment drops out of it, creating a sprawling, muddy delta. Water reaches that delta and spreads out and evaporates, or sinks into the ground.

Maintaining something that looks like a river corridor requires amphibious machines to routinely dredge a channel. The section of river north of Elephant Butte, the San Acacia reach, has developed a reputation for soaking up all the water sent into it and often dries out.

The U.S. Bureau of Reclamation is looking at ways to speed water through that reach by excavating a deeper river channel and removing some thirsty non-native vegetation. But time constraints have compelled the Bureau and state and local water managers to assess rehabbing the channel to move water through it again.

“We’re almost in an emergency situation in needing to improve our deliveries to Elephant Butte for the compact, so I think, timing-wise, it’s going to be a lot faster to fix up the low-flow conveyance channel,” said Page Pegram, Rio Grande Basin bureau chief for New Mexico’s Interstate Stream Commission.

That the Legislature included $10 million in the just-passed state budget for maintenance to improve river flows into Elephant Butte, including millions likely to be earmarked for the low-flow conveyance channel, demonstrates the seriousness with which New Mexico policymakers are treating the situation. 

Stephanie Russo Baca, who chairs the board of the Middle Rio Grande Conservancy District (MRGCD), which formed in 1923 to regulate the Rio Grande’s erratic flows for the 174 miles between Cochiti and Elephant Butte dams, calls it a “Hail Mary effort to get the water instead of it just evaporating. … If you’re going to deplete, don’t let it deplete just into the air.”

Preserving what exists now along the Rio—irrigated alfalfa, pecan orchards, fields of cotton, crops of chile, onions, and melons—relies on water. Downstream, Texas uses the water for vegetables, cotton, sugarcane, and the country’s third-largest source for citrus, a crop valued at $200 million a year. When people chastise farmers in the Middle Rio Grande Conservancy District for using so much of the Middle Rio Grande’s water, Russo Baca points out, so does the bosque of cottonwood trees and willows lining the riverbank. Statewide, agriculture, including livestock, consumes about 77 percent of the water used. And with climate change, everything—crops, streamside plants, even the air—will suck up more water. 

A map at the Bosque Del Apache National Wildlife Refuge shows the low flow conveyance channel running parallel to the Rio Grande. Credit: Bella Davis
A map at the Bosque Del Apache National Wildlife Refuge shows the low flow conveyance channel running parallel to the Rio Grande. Credit: Bella Davis

Even with dramatic measures to conserve water in 2021, including shortening the irrigation season, New Mexico missed its downstream delivery requirement to Texas. And despite a plentiful monsoon season in 2022, the total water owed to Texas dropped below 100,000 only because the Interstate Stream Commission was able to negotiate a credit for 32,000 acre feet of water the Bureau of Reclamation released from Elephant Butte in 2011.

That credit has done little to ease minds or reduce pressures to conserve water. If the amount owed reaches 200,000 acre feet, New Mexico could lose control of its water to the U.S. Supreme Court, which handles disputes over the Rio Grande Compact. That’s a crisis water managers are looking to the low-flow conveyance channel to help mitigate. 

“Granted, the way that the low-flow was used back then is not a way in which the district or probably any other water agency envisions using it, but we think there is a middle ground there,” said Casey Ish, water resources specialist with the Middle Rio Grande Conservancy District.

That middle ground might include using the channel during high-intensity monsoon rain storms to capture and fast-track that water downstream. Reclamation is planning a project this spring that would start on that effort by constructing a temporary outfall—a canal that returns unused water—to the river from the channel just south of the Bosque del Apache National Wildlife Refuge. The channel has been functioning as a drain for the river valley. The outfall would reconnect that often pooled water with the river channel so it can make its way to Elephant Butte while  the end of the channel is prepared to expedite water downstream if diversions resume.

Tens of thousands sandhill cranes winter at Bosque Del Apache National Wildlife Refuge. Credit: Bella Davis.
Tens of thousands sandhill cranes winter at Bosque Del Apache National Wildlife Refuge. Credit: Bella Davis.

Modeling work on the Rio Grande assessed how big a difference the channel might make, Gaume said, and the indications were that the increased water delivered through the channel roughly matched the amount of water gained by eliminating about half the irrigated agriculture in the middle Rio Grande valley. 

“So it’s a big deal,” he said. “And always has been a big deal.” 

Mike Hamman, previously the conservancy district’s director and now the state engineer, also lists re-opening the channel as a way to address “high loss” in that reach of the river but agrees it has to be done in an environmentally conscious way. The channel predates the Endangered Species Act and wasn’t operated before with the wellbeing of the Rio Grande silvery minnow, one of the river’s flagship endangered species, in mind.

“The LFCC today would likely never function as it did in the 1960s and 1970s due to the environmental impacts,” Jason Casuga, CEO and chief engineer of the MRGCD, explained via email to Sen. Martin Heinrich’s staff shortly after a meeting to discuss a water conservation program aimed at farmers. 

“We’d like to use it differently, so it’s not essentially drying the river in that reach,” Pegram agreed. “I don’t think anyone wants to operate it without considering environmental impact.”

The U.S. Fish and Wildlife Service is “definitely involved” in conversations around reopening this channel, said Debra Hill, large river restoration and recovery program supervisor with the agency. It is helping to identify where the river provides habitat for a trio of endangered and threatened species: the Rio Grande silvery minnow, southwestern willow flycatcher, and yellow-billed cuckoo. So far, none of the work to remove brush and maintain roads along the channel looks likely to injure endangered Rio Grande silvery minnow—it’s never been good habitat for them—and the one nesting Southwestern willow flycatcher in the area was unlikely to be disturbed by the work, according to the Service’s analysis for the Bureau of Reclamation.

Where the river itself is not providing that habitat, maybe it would be okay to route a portion of the river into the channel, Hill said. Generally, the agency prioritizes working in the river channel itself, even when ditches might be a faster way of moving water downstream.

The Rio Grande has always been a boom-and-bust waterway, with wet years followed by dry years. But the Southwest is entering uncharted territory. 

“I don’t think we can look at our historical data and make decisions into the future anymore,” said Hill. “We have to have a paradigm shift in how we look at water in the middle Rio Grande, and probably the entire state, and probably the entire West. We’re going to have to have a paradigm shift to realize, we live in a desert, and it’s only going to become more of a desert.”

To environmentalists, the idea of reopening the channel prompts a slew of questions and concerns, most of which hinge on whether these water management institutions are looking at the bigger ramifications in ways that, historically, they haven’t. 

Looking elsewhere in the Rio Grande Basin, there’s a stack of instances where the river has been abandoned. Downstream of Elephant Butte, it flows only in rare floods or while delivering irrigation water. Below El Paso, all the river’s water flows through irrigation ditches, leaving a dry channel. The “Forgotten Reach” through Texas, is even more rarely wet and is largely overgrown.

Given the compact crisis, Paul Tashjian, director of freshwater conservation for Audubon Southwest, is concerned that the channel might be revived and all the water entering the San Acacia reach, just north of Elephant Butte, redirected into it. 

“That would be a dead river,” he said. 

What might rank among the most important components of the river to preserve isn’t a perpetual flow, but how the water level surges with melting snow in spring.

Everything along the Rio Grande evolved with an erratic river that ran big and high with snowmelt in spring, then retreated. Cottonwood seeds only sprout on muddy banks. Willow seedlings likewise rely on damp ground. Birds nest above that snowmelt-thickened river. The silvery minnow spawns its eggs into the current, but they need to drift into slower channels and pockets of stiller water in the floodplain to grow up. 

Restoring the Rio Grande silvery minnow has required water for the fish to live in, but it’s also prompted federal and state agencies to re-engineer a “pulse flow” of water in spring to mimic snowmelt runoff that cues minnows to spawn. To do that, they release water from dams upstream timed to boost flows the way melting snow would.

“If you look historically, that spring pulse was the ecologic driver. That is how the system functions,” Tashjian said. “If you could maintain that, there are so many species that are keyed into that—it’s not just the minnow, it’s the cottonwoods and the songbirds.”

At the United Nations Biodiversity Conference in December, a global gathering on staving off the rampant loss of nature, biodiversity advocates built a giant Jenga tower to symbolize the notion that all these fish, birds, and plants are like building blocks. Only so many pieces can be lost before the whole tower topples, and which and where and how many species the planet can lose without jeopardizing human life, too, isn’t any clearer than the next move in that game.

Gina Della Russo worked as an ecologist for the Bosque del Apache National Wildlife Refuge for 17 years, aiding native plants in reestablishing on about 4,000 acres. The wildlife refuge also relocated the river channel away from the low flow conveyance channel into areas where it will build backwaters and wetlands for fish and bolster habitat for meadow jumping mouse, southwestern willow flycatchers, and yellow-billed cuckoo. One of her questions has been how reactivating the low flow conveyance channel might affect those nascent wetlands. 

“As a short-term solution, under the conditions we’re in right now, you try whatever you can to get water balance,” she acknowledged. “It’s a human condition, we react, so we think of things that may get us out of problems for a year or two, but will they actually solve the long-term problems of the river in this reach?”

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

Colorado River states bought time with a 3-year water conservation deal – now they need to think bigger

By
The Conversation US
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An irrigation canal moves Colorado River water through farm fields in California’s Imperial Valley.
Photo by Sandy Huffaker / AFP via Getty Images

By Robert Glennon, University of Arizona

Arizona, California and Nevada have narrowly averted a regional water crisis by agreeing to reduce their use of Colorado River water over the next three years. This deal represents a temporary solution to a long-term crisis. Nonetheless, as a close observer of western water policy, I see it as an important win for the region.

Seven western states – Colorado, Wyoming, Utah, New Mexico, Arizona, Nevada and California – and Mexico rely on water from the Colorado River for irrigation for 5.5 million acres and drinking water for 40 million people. Their shares are apportioned under a compact negotiated in 1922. We now know, thanks to tree-ring science, that its framers wildly overestimated how much water the river contained on a reliable basis. And climate change is making things worse.

Some recent commentators have argued for revamping the compact. The lawyer in me shudders to think of the utter chaos that would ensue as states, tribes that were left out of the original agreement, and Mexico try to unwind settled expectations and create new ones.

In my view, the agreement announced on May 22, 2023, strongly repudiates the need to revamp the compact. Seven states were able to finesse an agreement that will ultimately result in significant changes to the legal documents collectively known as the Law of the River, without the need to begin again. The next step – a broader, longer-lasting overhaul of the compact – will be even more challenging.

The May 2023 deal staves off an immediate water crisis but does not solve long-term problems in the Colorado River Basin.

Overallocated and shrinking

The Colorado River, the lifeblood of the U.S. Southwest, faced the prospect of going dry if its two largest reservoirs – Lakes Mead and Powell – hit dead pool, the level at which no water flows through their dams. Several forces led to this catastrophic prospect.

First, the 1922 Colorado River Compact and other elements of the Law of the River dole out rights to more water than the river provides.

Second, a historic drought that commenced in 2000 has caused water levels in the reservoirs to plummet by 75%.

Third, climate change has reduced the flow in the river by more than 1 million acre-feet. (One acre-foot is the amount of water required to cover an acre of land to a depth of 1 foot – about 325,000 gallons.) Evaporation off the surface of the reservoirs annually claims in excess of an additional 1 million acre-feet.

These satellite images show water levels declining from 2020 through 2022 in Lake Mead, located in the Mojave Desert in Arizona and Nevada (move slider to see change).NASA Earth Observatory

This year’s snowpack, historic by any measure, offers a year or two of relief from hitting dead pool. However, one wet year doesn’t alter the trajectory of climate change or the level of reliable flows in the river over time.

State water managers clearly understand the problem and have taken significant but insufficient steps to conserve water. Each state thinks the others should do more to solve the problem. Negotiations, sometimes acrimonious, have stalled.

In 2022, the U.S. Department of the Interior broke this stalemate with a plea and then a demand for the states to do more, faster, to protect the river. Then, in April 2023, the agency released a draft supplemental environmental impact study that offered two alternatives – one more favorable to California, the other to Arizona. The message to states was clear: If you can’t reach a consensus, we’ll act to protect the river. Intense negotiations followed, leading to the May 22 agreement.

Will payments promote long-term conservation?

The new cuts center on California, Nevada and Arizona because they draw their shares of the river mostly from Lake Powell and Lake Mead. The states have agreed to reduce their consumption of Colorado River water by 3 million acre-feet by 2026, which represents about 14% of their combined allocations.

This pact temporarily protects water supplies for cities, farmers and tribes. The U.S. Bureau of Reclamation immediately accepted the proposal and committed to pay for steps that are expected to conserve 2.3 million acre-feet of water with money from the Inflation Reduction Act. For example, the Gila River Indian Community will receive $50 million from the Lower Colorado River Basin System Conservation and Efficiency Program in each of the next three years for improvements such as new pipelines.

It’s now up to California, Nevada and Arizona to divvy up the remaining 700,000 acre-feet of cuts. I expect that water reallocation, with water moving from lower-value to higher-value uses, will play a key role. Water marketing – negotiating voluntary sales or leases of water – is a tool to facilitate that transition.

Most of the water involved in the recent agreement will be freed up by one party paying another party to use less – for example, cities paying farmers to conserve water that the cities can then use. That’s the essence of water marketing. The agreement will provide funding to irrigation districts, tribes and water providers, who will then figure out how to generate the savings each organization has committed to deliver.

Negotiation, not litigation

The next steps are for the states to begin discussions about replacing guidelines that currently govern the sharing of Colorado River water, which expire in 2026. These discussions will be more painful because federal funding will expire and cuts will be more severe. Thus far, the Upper Basin states – Wyoming, Colorado, Utah and New Mexico – have not had to endure significant water use cuts. My hope is that the states will seize this three-year window as an opportunity to develop procedures and identify funding for major water reallocations.

Over the last couple of years, there have been threats to solve these issues in court. But litigation is a lengthy, costly process fraught with uncertainty. The original Arizona v. California suit was filed in 1930, and the Supreme Court did not enter its final decree until 2006.

Many legal arguments that individual basin states could present to a court rest on interpretations of vague or ambiguous Law of the River documents. The river can’t wait for the legal process to adjudicate gnarly, complicated claims made trickier by a century of statutory and case law embellishments. As I see it, negotiation and concessions leading to consensus are the only viable solution going forward.The Conversation

Robert Glennon is Regents Professor Emeritus and Morris K. Udall Professor of Law & Public Policy Emeritus at the University of Arizona.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

Utah’s Suicide Pact With the Fossil Fuel Industry

By
Mother Jones
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The White River in Northeastern Utah emerges from the Colorado mountains into the Uinta Basin. Russel Albert Daniels
The White River in Northeastern Utah emerges from the Colorado mountains into the Uinta Basin. Russel Albert Daniels

By Stephanie Mencimer

The GPS coordinates weren’t especially helpful last May as we drove across the remote Tavaputs Plateau in Utah’s Uinta Basin. Cell service was spotty in the vast expanse of land crosshatched with unpaved roads identified on the map only as “Well Road 4304735551” or “Chevron Pipeline Road.” Photographer Russel Albert Daniels and I had set off that morning from Vernal (population 10,241), in search of a 15-square-mile plot of undeveloped land purchased in 2011 by the Estonian-government-owned energy company Enefit.

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On that land, the Estonians had hoped to create the first commercial-scale oil shale mining and processing facility in the United States, with a 320-acre industrial plant that would process 28 million tons of strip-mined shale and turn it into 50,000 barrels of oil every day for 30 years. Rich with traditional oil and gas reserves, the Uinta Basin also sits atop the largest oil shale reserve in the world, a 6 million-year-old geologic formation where Utah officials estimate a tantalizing 77 billion barrels of potentially recoverable oil lie just waiting to be exploited.

At a public meeting back in 2013, former Rep. Rob Bishop (R-Utah) told the Deseret News that the “exciting” Enefit project “has the potential to create significant revenue and jobs here in Utah and help with energy independence nationwide.” Cody Stewart, an energy adviser to former Governor Gary Herbert, called it “a game changer” with “the potential to make Utah a significant player on the energy map.”

Mined oil shale at the Enefit White River Mine in northeastern Utah. Russel Albert Daniels
Mined oil shale at the Enefit White River Mine in northeastern Utah. Russel Albert Daniels

The prognosis was not quite as bright in Estonia. Two years after the purchase, Estonian parliament members warned that the government risked losing $100 million on the deal because early lab tests in Germany had failed to affordably produce oil from Utah’s shale. Ingo Valgma, director of the mining department at the Tallinn University of Technology, told an Estonian journalist that the technology for producing oil in Utah was not a few years away but decades. Nonetheless, the Estonians stayed put and Utah’s elected officials sallied forth, optimistically insisting that oil shale riches were just around the corner.

As Russel and I bumped along the dirt roads of eastern Utah in search of Enefit’s land, it became painfully obvious that the Estonians had overlooked a major problem when they plunked down $42 million to acquire 30,000 acres of sagebrush in the basin: water, or the lack of it. Pulling a single barrel of oil out of shale requires between two and four barrels of water. The Uinta Basin lies within an arid, desert climate that averages about 8 inches of rain annually at the wettest of times. What little it does have comes from the critical watershed of the dying Colorado River, which more than 40 million people in the West rely on for agriculture and drinking water.

Enefit’s land sits just 40 miles from where the White River meets the Green, the largest and most important tributary of the Colorado River. To mine and process oil shale, Enefit hoped to suck as much as 11,000-acre-feet of water out of the Green River every year—about 10 million gallons a day, or enough to supply the daily needs of 90,000 households downstream in Arizona. (An acre-foot equals about 326,000 gallons or enough to cover about a football field with a foot of water.) Unfortunately, perhaps, for Enefit, “That water, more than likely, doesn’t exist,” says Brad Udall, a senior water and climate research scientist at Colorado State University’s Colorado Water Center.

Last summer, during one of the driest years of a 23-year mega drought in the West, the federal government told the seven Colorado River basin states they must come up with a plan to reduce water consumption by up to 40 percent of the river’s current volume, or enough to serve more than 6 million households for a year. This year, federal water managers plan to cut deliveries from the river by up to 25 percent. Record snowfall this winter may head off some of the worst of the cuts, but the runoff will only partially refill badly depleted Lake Powell and Lake Mead, the country’s largest reservoirs. The water crisis remains urgent, and the long-term prospects for the Colorado are grim.

The White River, the Uinta Mountains, and the Deseret Power Plant in the background. Russel Albert Daniels
The White River, the Uinta Mountains, and the Deseret Power Plant in the background. Russel Albert Daniels

The dire state of the Colorado River hasn’t stopped Utah officials from enthusiastically supporting policies to encourage Enefit’s oil shale production and all sorts of other thirsty, ill-conceived fossil fuel projects in the Uinta Basin in what some environmentalists have dubbed a “suicide pact.” These projects and priorities generally, and Enefit’s in particular, illustrate how a state, run largely by people who don’t believe in climate change, still presses ahead with carbon-belching fossil-fuel developments that, if successful, will only exacerbate the megadrought that has brought the Colorado River—and the West—to the brink of disaster.

“The whole connection between water and climate change, and conventional energy development and climate change, is not front and center” in Utah, says Udall. “I’ve given talks to high-level people in Utah who refuse to acknowledge the relationship between climate change and the drought and the American West.”

In 1861, LDS church president Brigham Young assembled a group of missionaries in Salt Lake City and ordered them to set off for the Uinta Basin to create new Mormon settlements in the region—lest the “Gentiles” get there first. A few months later, the scouting party reported back gloomily that the basin was “one vast contiguity of waste, and measurably valueless, excepting for nomadic purposes, hunting grounds for Indians, and to hold the world together.” Young suggested to President Abraham Lincoln that he use the wasteland for a Ute tribe reservation—and that’s what happened.

About 20 years later, however, a white settler named Mike Callahan built a new cabin just over the border in Colorado next to Parachute Creek. He used pretty, local rocks for his fireplace and chimney. Legend has it that the first time he lit a fire on the hearth, the cabin burned down. The pretty rocks turned out to be flammable oil shale. Ever since, speculators have been trying to figure out how to monetize those massive shale deposits in Utah. Still, it wasn’t until the oil shocks of the 1970s that the federal government got involved.

A vacant office and warehouse at the Enefit White River Mine in northeastern Utah. Russel Albert Daniels
A vacant office and warehouse at the Enefit White River Mine in northeastern Utah. Russel Albert Daniels

In 1974, the Department of Interior leased two large parcels of public land in the Uinta Basin that Enefit now controls to a consortium of oil companies that became the White River Shale Company. The Carter administration created loan subsidies and other supports to encourage oil shale mining, and construction began on a coal-fired power plant to support the future industry. In 1982, the White River Shale company pledged to invest $100 million into the operation and began the construction of a new mine in the basin.

Just three years later, global oil prices collapsed, Ronald Reagan cut off federal subsidies for alternative fuel development, and the company officially abandoned the mine. But in 2005, Congress passed a bill pushed by President George W. Bush and Utah Republican senators Orrin Hatch and Robert Bennett that declared oil shale an “important domestic resource” for national security and directed the federal government to accelerate its development.

The US Bureau of Land Management moved to reopen the mine in 2006 and leased the 160-acre site to a company backed by an Alabama coal firm called Oil Shale Exploration to conduct research on oil shale processing. “We are committed to being in the oil shale business for years and years to come,” promised managing partner Dan Elcan at the time. The company lasted five years. In 2011, Enefit bought all the defunct company’s assets, including the White River mine lease and 30,000 acres of private land nearby where it planned to open a shale processing plant.

One need only look at Estonia, the world’s leader in oil shale mining, to see what would happen to a Colorado River watershed dominated by this industry. With 70 percent of the country’s energy supply from oil shale, Estonia accounts for the second-highest per capita CO2 emissions in all of Europe. The reason? Oil shale has about the same energy density as a potato. Getting useable oil from it requires heating a lot of rocks to extremely high temperatures, a process that emits between 25 to 75 percent more C02 emissions than conventional oil drilling. That’s why Enefit’s Utah development was met with stiff opposition from environmentalists, who see the project as a potentially catastrophic “carbon bomb.”

A closed mine at the Enefit White River Mine in northeastern Utah. Russel Albert Daniels
A closed mine at the Enefit White River Mine in northeastern Utah. Russel Albert Daniels

In 2010, the late activist Randy Udall (brother of CSU’s Brad Udall) decried oil shale mining in Utah as “folly.” He told the Deseret News, “If someone told you there were a trillion tons of tater tots buried 1,000 feet deep,” he asked, “would you rush to dig them up?”

Russel and I wanted to better understand the state of Enefit’s Utah project, which over the past decade, has been the subject of much litigation by environmentalists and a lot of hype by Utah officials. So we hopped into my rented, white Toyota Tacoma and headed out to the proposed strip-mining site. Driving south on Highway 45, we crossed over the mighty Green River equipped with only a vague sense of what we were looking for. The site is so remote that even most of the environmentalists who’d been fighting the project have never actually visited it. Enefit’s US CEO works from an office 200 miles away in Salt Lake City and was unable to give us a tour.

We passed the breathtaking canyon overlooking the White River and dodged some wild horses wandering the road. After about 40 desolate miles, a smokestack rose up from unnatural, shimmering ponds like Oz in the desert—the massive coal-fired power plant built in the ‘80s to support oil shale mining. From there, we searched for an unpaved road that was supposed to take us somewhere close to the Enefit site—or, if we overshot the mark, to a ghost town called Dragon that had once been a gilsonite mining hub. Overshoot we did, but instead of finding the ghost town, we accidentally drove through the gates of the old White River shale mine, which the Bureau of Land Management leases to Enefit.

Inside the compound, we found mountains of rainbow-colored shale, rusting industrial equipment, and a low-slung office building slowly becoming one with the sagebrush—the abandoned wreckage of decades’ worth of failed efforts to squeeze oil from rocks. A sign on the chain link fence surrounding the mine entrance offered many dire warnings: “Danger, Open Mine, Stay Away, Bad Air, Unstable Workings,” a relic of a 1995 explosion that killed one man and critically injured two others who’d been working to seal up the mine.

Deseret Power Plant in the Uinta Basin in Bonanza, Utah. Russel Albert Daniels
Deseret Power Plant in the Uinta Basin in Bonanza, Utah. Russel Albert Daniels

One thing we didn’t find among those piles of rocks was any evidence that oil had been produced there. Ever. The rocks gave off a faint odor of petroleum, but from our vantage point, the Estonian endeavor appeared to be nothing but a rural development fantasy. “Oil shale has been called the fuel of the future for the last 150 years,” says Michael Toll, an attorney with the Grand Canyon Trust, a nonprofit group that is currently suing BLM over the Enefit project. “It’s always the next big thing, but the economics of it have never made it profitable.”

Before Colorado River water gets to the alfalfa farmers in Arizona, the Bellagio fountains in Las Vegas, or California’s Imperial Valley almond growers, much of it passes through the oil and gas fields of the Uinta Basin by way of the Green River. The Colorado’s biggest tributary, the Green River starts in Wyoming’s Wind River mountains and travels more than 700 miles down through Dinosaur National Monument. It dips briefly into Colorado before transversing the Tavaputs plateau and eventually meets up with the Colorado in Canyonlands National Park.

The bridge at Ouray, Utah crosses the Green River near the confluence of the Duchesne River and Green River. The Green River is a main tributary of the Colorado River. Russel Albert Daniels
The bridge at Ouray, Utah crosses the Green River near the confluence of the Duchesne River and Green River. The Green River is a main tributary of the Colorado River. Russel Albert Daniels

One day during our tour of the Uinta Basin, we got an aerial view courtesy of Steve Meyer, a former longtime Indian Health Service doctor who moonlights as a volunteer pilot for the nonprofit conservation group Light Hawk. From the window of his little Cessna, we traced the path of the Green through a plateau pockmarked with thousands of both working and abandoned oil and gas wells dating back to the first gusher in 1948.

For decades, Utah has treated the Green River as both water supply and sewer system for the basin’s fossil fuel industry. From the air, we could see the oil pumpjacks that operate just yards away from the riverbank in the Ouray National Wildlife Refuge, home of a hatchery for endangered Colorado River fish. Oil wells have leaked into or near the river with some regularity, including one blowout in 2014 that sent an oily sheen so far down the river that visitors in Canyonlands National Park noticed it. The Biden administration has recently opened up more public land near the river to conventional oil and gas leasing, which is booming again thanks to the war in Ukraine.

Meanwhile, state officials have allocated millions of dollars to build infrastructure to increase fossil fuel production in the Green River watershed. Some of the funds have come from the Permanent Community Impact Fund Board (CIB), a pot of money created from royalties from oil and gas leases on public lands. The fund is supposed to help mitigate the impact of mineral extraction on local communities. The nonprofit Center for Biological Diversity reported in 2021 that over the previous two years, rural counties in the basin had asked the CIB for more than $60 million for such projects as upgrading water tanks, sewer lines, and fire hydrants—some needed because of the drought—but received none of it. Instead, since 2009, the CIB has spent millions on fossil-fuel infrastructure, like $34 million on a “road to nowhere” across the basin to service oil fields and a tar sand mine on state-owned land that has never—and probably never will—produce any commercially significant amounts of oil.

Fracking sites near the White River. Russel Albert Daniels
Fracking sites near the White River. Russel Albert Daniels

The CIB has also contributed nearly $28 million to developing the controversial Uinta Basin Railway, which would transport oil from the Uinta Basin to refineries on the Gulf Coast. The project could allow oil companies to quadruple production in the basin, while potentially despoiling up to 400 streams in the Colorado River watershed—and that’s before there’s an oil spill or derailment. In 2021, Uintah County voted to seek nearly $40 million in CIB funding to subsidize the construction of a new refinery in the basin—a development that would require about 1.5 barrels of water to produce a single barrel of oil. 

Enefit might benefit from all of those projects. But to produce oil, what it really needs more than roads or a train is water. On paper, Enefit has plenty of it. Among the assets of the defunct oil shale company Enefit acquired back in 2011 were its crucial rights to water in the Green and White rivers. Unfortunately, water rights must be put to “beneficial use” within a certain time frame—50 years in this case—or they revert to the state. Enefit’s water rights, which dated back to 1965, were going to expire before it used them to produce even a barrel of oil.

So in 2012, Enefit made a deal with Deseret Power, which owns the Bonanza coal-fired power plant built in the ‘80s in anticipation of the oil shale boom that never happened. It transferred its water rights to the utility for $10. And then, under a state law that applies only to utilities, the power company renewed the water rights beyond the 50-year window and allegedly contracted with Enefit to return all that water to the company. In 2021, environmentalists filed an administrative protest with the state seeking to void those water rights, arguing that the power company is not putting its water to beneficial use under this arrangement. (The contract between Enefit and Deseret Power has never been released publicly, and Enefit is not a party to the water rights protest; the case is still pending.)

Regardless of where it acquired water rights on paper, Enefit’s remote industrial site is still a long way from any actual water. Ultimately, the company hopes to run a pipeline across more than 20 miles of public land to get to the Green River, where it could pull out the 10 million gallons of water a day it needs to process shale. But for that, it needs permission from the feds.

The company applied for such a right of way during the Obama administration, and in late 2016, the Bureau of Land Management issued a favorable draft environmental impact statement on the application. According to the Grand Canyon Trust’s Michael Toll, the environmental review was “woefully inadequate,” but state and local officials, predictably, were thrilled with the outcome. “Enefit American Oil has proved themselves to be a welcome corporate citizen in our community,” wrote the Uintah County Commission in a letter to BLM. “This project has the potential to represent a significant source of jobs and economic development in our region.”

A pumpjack near Vernal, Utah. Russel Albert Daniels
A pumpjack near Vernal, Utah. Russel Albert Daniels

In 2017, President Donald Trump tapped Utah native Brian Steed as the BLM’s acting director. Steed had previously worked as chief of staff for Rep. Chris Stewart (R-Utah), a congressman once called “Glenn Beck on steroids.” Stewart doesn’t believe humans cause climate change, and the oil and gas industry has been his biggest source of campaign funds.

“We are proud to do our part to move this important energy project forward,” Steed said in a 2018 press release announcing the BLM approval of Enefit’s application. A few months later, Utah Governor Gary Herbert appointed Steed to head the Utah Division of Natural Resources, where until last summer, he oversaw both state regulation of the oil and gas industry and its water policy. In 2019, environmental groups sued the BLM alleging it had violated the National Environmental Policy Act by approving Enefit’s proposed utility corridor. The case is currently languishing in federal court, where it hasn’t even had a hearing on the merits. Enefit has said in legal filings that it could simply truck water from the Green River to its site in the basin and process shale without approval for the pipeline. But it hasn’t done that, a clear sign that the company isn’t in any big hurry to create Estonia in the Utah desert.

Nonetheless, Enefit’s massive but as yet nonexistent oil shale operation in the basin has been used to help justify the construction of the Uinta Basin Railway, the oil train greenlighted by the Biden administration but opposed by most of the Colorado congressional delegation because of its potential impact on the Colorado River. Enefit USA CEO Ryan Clerico wrote a letter to the federal Surface Transportation Board in 2019 saying the railway “would provide a valuable means to transport product oil to market and to move equipment and other materials associated with an oil shale industry into the region in a safe, efficient, and environmentally responsible manner.” Railway promoters quoted the letter in subsequent filings with the board, which then cited the letter in its 2021 decision approving the railway construction as evidence that it was economically viable. Counties in the Uinta Basin will soon issue $2 billion in tax-free bonds to finance its construction.

“We have a high concentration of schemers and dreamers” in Utah, laments Steve Bloch, the legal director of the Southern Utah Wilderness Association. “They are reinforced by the dominant religion and reinforced by the politics. That kind of mentality has a very firm grip over local and state politicians, our members of Congress. It makes transitioning away from fossil fuels very difficult.”

While Utah tries to amp up fossil fuel development in the state, Estonia, oddly enough, says it’s moving towards a more carbon-neutral future. In March this year, the Baltic nation elected a new government, which tapped a new CEO for Eesti Energia, Enefit American Oil’s parent company. One of his goals is to reduce carbon emissions and to focus on renewable energy. The company has also discovered a more accessible supply of oil than shale: plastic trash, from which it can produce three times more oil than it can get from mining shale.

Enefit is now exploring putting its Uinta Basin real estate to more sustainable uses, like solar power generation—a promising enterprise in a place with no water but lots of unobstructed sunshine. “We’ve looked at alternative development opportunities unrelated to oil shale, including renewable possibilities,” Enefit’s Ryan Clerico told me.

Gas development on the White River. Russel Albert Daniels
Gas development on the White River. Russel Albert Daniels

The company also recently helped the University of Utah secure an $8 million Department of Energy grant to research carbon capture in the basin by pledging to make some of its land available to the researchers. “Enefit maintains aggressive decarbonization goals, including reduction of the group’s energy production CO2 intensity by 43 percent during the current five-year strategic planning period,” Clerico wrote to the university in July. “This research project is consistent with our larger corporate goal of a ‘Journey to Zero’ emissions.”

Back at Enefit’s White River mine, Russel and I took a break from exploring and sat in the bed of our rented pickup truck to eat sandwiches and chips purchased on the reservation from the Ute Oil gas station. The wind blew gently. It was a perfectly clear beautiful spring day in a wild, remote region whose horizon is often marred with Los Angeles levels of smog because of all the oil and gas drilling. Kestrels surfed the thermals high above in wide open skies. Even surrounded by ancient rusting winches and other mining equipment, the spot didn’t feel like a wasteland. Smaller versions of the dramatic sandstone formations found in many of Utah’s most famous national parks sheltered us with a level of solitude that’s hard to find in modern American life.

Vernal, Utah, Main Street. Russel Albert Daniels
Vernal, Utah, Main Street. Russel Albert Daniels

When we reluctantly got back in the truck to head back to Vernal, we discovered, to our horror, that the gate on the only road out of the mine was closed and locked. We were trapped, miles from civilization, and more importantly, from water. Fortunately, I had a few bars of cell service. I made an embarrassed call to Clerico and confessed to our misadventure. That’s how I discovered the real economic activity currently going on at the Enefit site: sheep grazing. Clerico laughed and told me that a local rancher must have unwittingly locked us in before heading home for the evening. The amused rancher kindly freed us, and as the setting sun turned the sandstone cliffs a riot of color, we retraced our route and headed back to Vernal to quench our thirst—with a beer.

This article was supported by The Water Desk, an independent journalism initiative based at the University of Colorado Boulder’s Center for Environmental Journalism. Aerial support provided by LightHawk. This story has been updated.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

Stream restoration bill watered down

By
Aspen Journalism
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Workers construct a post-assisted log structure or PALS, on the Brush Creek Valley Ranch and Open Space south of the town of Eagle. These structures mimic large woody debris like a downed cottonwood and are designed to promote and restore natural stream functioning in areas that have been degraded. Photo courtesy of Eagle County Open Space
Workers construct a post-assisted log structure or PALS, on the Brush Creek Valley Ranch and Open Space south of the town of Eagle. These structures mimic large woody debris like a downed cottonwood and are designed to promote and restore natural stream functioning in areas that have been degraded. Photo courtesy of Eagle County Open Space

By Heather Sackett

Colorado lawmakers may pass a stream-restoration bill this session, but it won’t be the one proponents and environmental groups were hoping for.

A bill aimed at making it easier for stream-restoration projects that mimic beaver activity to take place has been gutted after stakeholders couldn’t reach an agreement, underscoring how difficult it is for environmental interests to gain a toehold under Colorado’s system of water law.

An original draft of Senate Bill 270 clarified that restoration projects do not fall under the definitions of a diversion, storage or a dam; are presumed to not injure downstream water rights; and do not need to go through the lengthy and expensive water-court process to secure a water right or augmentation plan.

Project proponents would have had to file an information form with the Division of Water Resources (DWR) showing that projects would stay within the historical footprint of the floodplain before it was degraded and didn’t create new wetlands. Anyone, including downstream water users who believed the project would injure their water rights, could then challenge the project plans by filing a complaint.

The types of projects that the original bill aimed to address are known as low-tech, process-based restoration and include things such as beaver-dam analogs (BDAs). These temporary wood structures consist of posts driven into the streambed with willows and other soft materials woven across the channel between the posts.

By pooling water on small tributaries in the headwaters, these process-based restoration projects act as if rehydrating a dry sponge and restore watersheds to a more natural condition before they were degraded by human activities. These projects can improve water quality, raise the water table, and create a buffer against wildfires, drought and climate change. The idea is that by creating appealing habitat in areas that historically had beavers, the animals will recolonize and continue maintaining the health of the stream.

But the watered-down version of the bill that made it out of committee and is up for a second reading in the House on May 3 no longer addresses these types of projects. After amendments removed language referring to these projects, the bill now only includes minor stream-restoration activities such as bank stabilization or restructuring a channel to recover from wildfire or flood impacts.

“The stuff that got taken out was the projects that would reconnect the channel and the floodplains and push water out of the channel in a way that would saturate the meadow and potentially change the hydrology,” said Kelly Romero-Heaney, assistant director for water policy at the Colorado Department of Natural Resources (DNR). “Those projects are very much intended to maximize the ecological uplift from a stream restoration project. They are also the projects that gave the most heartburn to the water community.”

DNR staff and environmental groups were the proponents of the original legislation. If stream-restoration projects were required to secure a water right and spend money on an expensive augmentation plan, in which water is released to replace depletions that it causes, it could discourage these types of projects. Currently, proposals are evaluated by division engineers, who determine whether an augmentation plan is needed.

Two PALS on the Brush Creek Valley Ranch and Open Space south of the town of Eagle help restore natural stream functioning in areas that have been degraded by ranching and grazing. Eagle County Open Space installed 13 on a half-mile stretch of Brush Creek last fall. Photo courtesy of Eagle County Open Space
Two PALS on the Brush Creek Valley Ranch and Open Space south of the town of Eagle help restore natural stream functioning in areas that have been degraded by ranching and grazing. Eagle County Open Space installed 13 on a half-mile stretch of Brush Creek last fall. Photo courtesy of Eagle County Open Space

Agricultural concerns

Some agricultural water users were concerned that keeping water on the landscape for longer could potentially injure their downstream water rights by slowing the rate of runoff and creating more surface area for evaporation.

“Any time you’re talking about water and changing things in the water system, you run the risk of impacting water rights and the doctrine of prior appropriation, which is my guiding star when it comes to water issues,” state Sen. Cleave Simpson, a Republican, said at a Senate Agriculture and Natural Resources Committee hearing April 13. Simpson, a sponsor of the bill, is a rancher who represents District 6.

Prior appropriation is the cornerstone of Colorado water law in which the oldest water rights have first use of the river.

Austin Vincent, general counsel and director of public policy for the Colorado Farm Bureau, said the original bill would have placed an unfair and expensive burden on water rights holders to file a complaint and prove they were being injured by a stream-restoration project.

“It takes money to get an attorney and an engineer to prove your water right was injured,” he said. “The Farm Bureau is happy we are having this conversation, but we need to make sure this policy is done right. With the prior appropriation system being the law of the land here in Colorado, we need to make sure that’s not eroded.”

Pitkin County Commissioner Kelly McNicholas Kury testified at the committee hearing, expressing the county’s strong support for the original draft of the bill.

“Our western rivers are the lifeblood of our state and they are in crisis,” she said. “We should all be committed to restoring our rivers to a healthy and thriving state.”

Pitkin County has funded a summer program with the U.S. Forest Service for a beaver inventory in the headwaters of the Roaring Fork River, which could be the first step toward reintroducing the animals.

During negotiations on bill amendments, some groups had floated the idea of a cap that would place a limit on how much new surface area of water that restoration projects were allowed to create. But a too-small cap didn’t appeal to environmental groups.

“The cap became the dynamite stick in the water community dialogue,” said Abby Burk, western rivers region program manager for Audubon Rockies. “If we had gone forward with these caps, we would have caged stream restoration, so it was better to pause.”

Legislators have said they plan to revisit the issue in the interim committee and perhaps again next session with a new bill addressing process-based restoration projects.

This PALS on the Brush Creek Valley Ranch and Open Space south of the town of Eagle mimics a downed cottonwood. The Division 5 Engineer’s office said these post-assisted log structures don’t injure downstream water rights. Photo courtesy of Eagle County Open Space
This PALS on the Brush Creek Valley Ranch and Open Space south of the town of Eagle mimics a downed cottonwood. The Division 5 Engineer’s office said these post-assisted log structures don’t injure downstream water rights. Photo courtesy of Eagle County Open Space

Eagle County project

Staff from Eagle County Open Space learned firsthand the issues that can arise with stream-restoration projects, when they planned for 13 beaver-dam analogs to restore a half-mile section of Brush Creek that had seen intense ranching and grazing. The creek had been straightened and disconnected from its floodplain, and the riparian and aquatic habitat was impaired.

County staff submitted their plans to DWR, which told them they would have to get a plan for water replacement, or augmentation, to replace the water that would be evaporated from the small ponds created by the project.

“It appears the BDAs associated with this project will result in a series of impoundments in ponds/pools that will result in additional evaporation from increased surface area that will injure downstream water rights,” the response from DWR reads.

Getting an engineer to model the amount of water lost, then implementing a plan to replace that water was cost-prohibitive for the county, said Peter Suneson, open-space manager for Eagle County.

“Modeling a leaky beaver dam is doable, but you’re going to end up throwing a lot of money at it and you still have to find water to put back in the creek,” he said.

Instead of the BDAs, Eagle County instead moved forward with another low-tech, process-based project that DWR did not have a problem with: post-assisted log structures (PALS). These mimic large woody debris — a downed cottonwood tree, for example — that is affixed to a streambank and extends into the channel but does not span the entire waterway.

According to DWR, as long as PALS do not funnel water away from a diversion structure such as an irrigation headgate and do not impound water, they will not injure downstream users.

“We got 13 PALS in last fall and we are going to do that again this fall,” Suneson said.

It was exactly these types of projects that drafters of the original bill were hoping to make exempt from the water-court process, but which remain evaluated on a case-by-case basis by division engineers. But as drought and climate change have tightened their grip on Colorado, resulting in less water to go around, even restoration projects that everyone agrees are beneficial to the environment can be contentious.

“The entrenched interests like to see the status quo protected and preserved and those newer types of water uses, whether it be recreational or environmental, are at the end of the line,” said Drew Peternell, director of Trout Unlimited’s Colorado Water Program. “It’s a tough uphill battle to pass legislation that allows water to be used for those newer values.”

Aspen Journalism is a nonprofit, investigative news organization that covers water, environment and social justice.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

Amid a withering drought, New Mexico leaders struggle to plan for life with less water

By
New Mexico in Depth
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ALBUQUERQUE, NEW MEXICO - NOVEMBER 2, 2022: A view of the Bosque and Rio Grande from Pat Baca Open Space in Albuquerque, NM on November 2, 2022. CREDIT: Adria Malcolm for New Mexico In Depth
ALBUQUERQUE, NEW MEXICO – NOVEMBER 2, 2022: A view of the Bosque and Rio Grande from Pat Baca Open Space in Albuquerque, NM on November 2, 2022. CREDIT: Adria Malcolm for New Mexico In Depth

By Elizabeth Miller, New Mexico in Depth

Water Desk Grantee Publication

This story was supported by the Water Desk’s grants program.

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This story was originally published by New Mexico In Depth on April 11, 2023

Though the Rio Grande runs through the heart of New Mexico’s biggest city, you can easily miss it. Even from places where you’d expect to see water — designated parking areas near the river or paths along which you carry a boat to cast off from the nearest bank — it’s often invisible behind a screen of cottonwoods. Through much of the city, it hides behind businesses, warehouses, and strip malls. 

From the riverbank or on the river itself, these curtains create a rare reprieve, a place in an urban area that can be mistaken for a pocket of wild. City noise infrequently penetrates the cottonwoods that beat back the heat and hum with insects and birdsong on summer days. The river often runs a murky, reddish beige that matches its muddy banks.

But invisibility also means the river’s more easily forgotten. That’s worrying for a river as water managers and stakeholders plan for the next five decades of water use in New Mexico — a period that will witness tough choices as a dire and historic drought continues and the river is unable to give everyone what they want or need. 

Norm Gaume, a water resources engineer who once served as director of the New Mexico Interstate Stream Commission and as a water manager for the City of Albuquerque, has watched and participated in water planning in the state for decades. He agreed to take me down the river on the first warm spring day last year to talk about the future of the Rio Grande from the river itself.  As soon as we launched downstream in his canoe, we began passing examples of ill-considered planning around the river: houses built in flood plains and scattered jetty jacks once planted on the riverbanks to channelize the historically sprawling riverbed and now primed to rip open a boat. 

In the stretch where our trip finished, the river was so low that we had to wade, instead of float, back to our vehicles. It drove home Gaume’s core point: “All the desires for this poor little river exceed what it is.”

That situation is getting worse, and the consequences have us, as he said, “borrowing from the future to pay the river back today.”

New Mexico’s future will almost certainly be hotter and drier, with profound implications for our water and people who use it for homes, industries, farms, and recreation. Failing to plan holistically leaves the state running from one crisis to the next, whether that’s farmers weathering another dry season or biologists racing to save endangered fish in a vanishing waterway, and facing seemingly impossible choices, and improbable solutions, while time runs out.

New Mexico doesn’t have a good track record on planning when it comes to water. And now, as it nears the finish of drafting a 50-year water plan, some say they’ve continued to fall short: dedicating few staff and too little funds, not involving the right people and communities, and not imagining a future that encompasses the full spectrum of river uses, including the very existence of some species. 

“This is not one of those issues that you can say, ‘Well, if we take a step in the right direction, in 20 years, we’ll have made headway,’” said Gina Della Russo, an ecologist who has worked along the Rio Grande for more than three decades. “We don’t have 20 years. We didn’t have 20 years 20 years ago.”

Climate change forces new approach to water planning

The Rio Grande has never been an easy river to live alongside. Through its 1,900-mile course, which begins in Colorado’s San Juan Mountains and ends in the Gulf of Mexico, running through broad valleys and tight gorges along the way, it’s known as dynamic and variable. 

Historically, spring snowmelt flooded its banks. The river frequently changed course through its floodplain. Species that grew up alongside it, from the Rio Grande silvery minnow to cottonwood trees, adapted to that variety. Now, they depend on it. Silvery minnows spawn in spring runoff, and cottonwood’s white drifts of seeds sprout only after that rush of water leaves muddy ground.

But settlers saw the river’s erratic flows, side channels, backwaters, sweeping floodplains, and shifting banks as a hostile neighbor. As the communities of Albuquerque, Las Cruces, El Paso, and Ciudad Juarez, plus more than 200,000 acres of irrigated agriculture, arose alongside the river, humans harnessed it to produce more predictable flows. Levees and jetty jacks, asterisk-like stars of metal, set the river into a specific channel, while dams steadied its flow. 

Now, a changing climate jeopardizes the river’s uses. Rising temperatures turn snow to rain. Spring runoff is starting earlier; already, it’s out of sync with when fish spawn and cottonwoods cast seeds. New Mexico’s history of swinging from wetter to drier periods about twice per century perpetuates faith that rain will return, but when, exactly, it is impossible to say. The state is 22 years into drought, and forecasts anticipate hotter and longer dry periods to come as climate change moves the Southwest into unprecedented ground where what we learned from the past may not apply well to the future.

“You can’t talk about water policy and investments without understanding the scale and scope of change that’s happening,” said U.S. Rep. Melanie Stansbury, who studied and worked in water policy and management for years before heading to Congress to represent New Mexico.  “Sure, we can make micro-investments in different solutions that we tried in the 20th century and in the last few decades, but we really have to take a hard look at the science, figure out how we’re going to manage this system over the next century, given climate impacts, a completely different hydrologic regime, and a completely different need for ways in which we’re going to meet the existing and growing demands.”

“It’s just crucial that people understand this is not a one-time drought,” Stansbury said. “This is the change that climate change has brought to these systems and we have to act now, because literally the future of our communities depends on it.”

New Mexico has been barred from storing water upstream since June 2020 in large part because water held in a reservoir upstream that would have been sent to Texas was instead used to irrigate Middle Rio Grande farmers’ fields through a painfully dry summer, and it now owes significant water to Texas. That water obligation is set by the Rio Grande Compact, a multi-state agreement that determines how to divvy up the river.

Without that stored water to add to flows all summer, said Page Pegram, Rio Grande Basin water chief for New Mexico’s Interstate Stream Commission, the river will dry out, as it did in Albuquerque for the first time in 40 years last July.  And that’s actually the natural state of the river, she said. “Flow has been relatively low, snowpack has been relatively low, but really what we saw this summer and early fall, before the rains really hit, was really the natural flow of the Rio Grande.”

The Rio Grande dried through the Albuquerque reach in 2022, for the first time in 40 years. Credit: Tara Armijo-Prewitt.
The Rio Grande dried through the Albuquerque reach in 2022, for the first time in 40 years. Credit: Tara Armijo-Prewitt.

The prohibition on water storage upstream won’t be rescinded until the water stored in Elephant Butte and Caballo reservoirs comes above 400,000 acre feet. It’s currently around 150,000 acre feet.

“We can’t assume that we’re going to find more water anywhere, we have to assume that we’ve got to shrink the pie,” Pegram said. “From the state’s perspective, we just need to figure out how all different sectors can share in the shortage that we’re seeing in the middle Rio Grande, and that includes environmental, agriculture, municipalities—everybody.”

New Mexico is not alone.

“This whole region is grappling with water bankruptcy,” said Ali Mirchi, a professor at Oklahoma State University who co-authored a recent paper on the drying Middle Rio Grande.

Even cities that lean on groundwater aquifers to supply municipal taps aren’t safe from the drought-induced water crisis. Albuquerque relies on the Santa Fe Group Aquifer as well as the San Juan-Chama Drinking Water Project, which diverts water from the San Juan River to the Rio Grande to bolster supplies. That $400 million pipeline was built in 2008 to reduce reliance on an aquifer the city’s water utility admits is overtaxed. Research in the early 1990s showed a reservoir once thought to be virtually limitless was being pumped twice as fast as nature could replenish it. 

Viewing rivers on the landscape’s surface and the aquifers, or groundwater, below it, as separate systems is a mistake, Mirchi said: “River water is our checking account. Groundwater is our savings account. So we’re depleting our savings.”

Worse still, when New Mexico drives up the amount of water it owes to Texas under the Rio Grande Compact, he added, that amounts to “maxing out the water credit cards.”

Striving to plan

In 2005, then-Gov. Bill Richardson recognized the most significant threat from climate change was to the state’s water sources. He tasked the Office of the State Engineer with drafting a report examining the changing snowpack, water availability and timing, increased water use by plants and people because of longer and hotter summers, and more frequent floods and droughts. 

Anyone who has read Climate Change in New Mexico Over the Next 50 Years: Impacts on Water Resources, the scientific report published in March 2022 that will be foundational to the state’s forthcoming 50-year water plan, will hear an echo of that Richardson-era report. New Mexico faces the same challenges today. All that’s changed in 18 years is that more research has better characterized the consequences.

After Gov. Michelle Lujan Grisham tasked the Interstate Stream Commission with preparing a 50-year water plan, the commission’s director, Rolf Schmidt Petersen, asked Nelia Dunbar, a volcanologist and director of the New Mexico Bureau of Geology and Mineral Resources, to organize drafting a scientific report, called the “Leap Ahead Analysis Assessment,” to provide a foundation for creating the 50-year plan. 

Dunbar assembled a team of authors, led by a climate scientist and a hydrologist, and the team spent hours in virtual meetings, brainstorming the reports’ components and discussing the ripple effects of forecast changes. 

“We need to recognize that we are going to be dealing with a scarcer resource, and we wanted to provide some parameters about just how much scarcer that resource is going to be,” Dunbar said.

The 50-year plan is expected to soon be publicly released. But Mike Hamman, who leads the Office of the State Engineer, the state division tasked with drafting the plan, has said the effort faces “inertial issues.” He called out his agency’s limited capacity. Others have voiced concerns that the office is understaffed and underfunded, and facing so much turnover that too little expertise and too few staff remain to implement any new programs a plan might call for.

The Leap Ahead Analysis also excluded traditional ecological knowledge and expertise, said Julia Bernal, director of the Pueblo Action Alliance. The climate has changed over millennia, and Native communities have adapted to and survived those fluctuations.

“To not include them here is also doing a disservice to future climate mitigation plans,” she said. “This concept of ecosystems not including communities has also been very problematic because we tend to categorize human communities as separate from the natural environment and that’s just not the case.”

Alejandría Lyons, coordinator for New Mexico No False Solutions coalition, said the process for convening stakeholder groups to support drafting the water plan put everyone in different rooms, with the business community, nonprofits, indigenous communities, and farmers meeting separately. Lyons, who has a background working to increase access to the river among communities of color, worries that the approach cost New Mexicans a chance for open dialogue: “I think that it’s great that we were revisiting the 50-year water plan, but the way in which we’re doing it, we are, again, siloing our communities, and so the same people are receiving the same information, and it becomes this kind of echo chamber.” 

In the end, she said, that may produce a plan ill-equipped to proactively address the crises on the horizon: “We’ll see the kind of water management like we have in the last 10 years,” she said, “where agencies are just picking up the pieces where they can.”

Lack of funding hobbles water planning

As he dipped a paddle into the water on our trip downriver, Gaume called the previous iteration of a state water plan a “shelf report”— a ream of paper printed with ideas and predictions about the state’s water future but with no actionable or enforceable elements.  Lujan Grisham, who called for a state water plan in 2018, and the Office of the State Engineer requested $750,000 for this 50-year plan, but state lawmakers declined that request in 2020. The OSE pursued planning anyway, with just $350,000. 

“The agency decided it was important enough that they would take it out of their hide, so to speak,” Gaume said.

The silt laden Rio Grande meanders through Albuquerque’s bosque. Credit: Marjorie Childress
The silt laden Rio Grande meanders through Albuquerque’s bosque. Credit: Marjorie Childress

This year, the Legislature appropriated $250,000 in recurring money for the 50-year water plan, plus a one-time $500,000 allocation for the plan.

But the  limited funding for this round convinces Gaume that New Mexico remains a state that “doesn’t believe in water planning.”  Of the new 50-year water plan, he said: “Really all it will be is a plan to plan.” 

Short funding and little capacity—New Mexico’s Interstate Stream Commission has two staff working on water planning; Colorado, for comparison, has 13—mean the state’s plan can at best offer broad strokes, and leave working out the details to water planners working on more localized levels. Senate Bill 337, which passed on the second to last day of this legislative session, tries to map a path forward for that regional-level planning, as funding is available. The Office of the State Engineer estimated that it would need an additional full-time employee for the tasks the bill mapped out; the bill’s fiscal impact report points out that state agencies regulating and enforcing water policy in the state have faced staffing issues, and the additional responsibilities assigned in this bill do nothing to improve that problem. 

A heron skims ahead, a red-tailed hawk barrels into the thickets, and a porcupine sits in a cottonwood, a dark knot where branches join. The khaki-colored water leaves indiscernible shapes and shadows below the surface, dark rocks and pale sandbars the canoe skids off or sinks into. Some paddle strokes catch more mud than water. We pass a few people along the banks: a woman with two blonde kids in pants so wet they sag, an older man in a blue polo who asks how far we’re going, five firefighters on fuels-reduction work, three young men with fishing poles.

As stakeholders vie for water where the demands already exceed what the river provides, the river so prone to running invisibly in the background has been left out entirely.

The Leap Ahead Analysis, when first released, did not include a chapter on rivers and managing ecological health. There are, however, chapters on agriculture and industry. Conservation groups brought this to the ISC staff’s attention in late 2021.

“If you don’t have a scientific foundation for those needs, then how do you expect to be able to form good policy?” said Tricia Snyder, who was then working with WildEarth Guardians, which has been watchdogging the Rio Grande for decades and filed repeated lawsuits for more ecologically sensitive management of the river. “If you are investigating the impacts on certain water uses and not others, then the state is already making decisions about which of those water uses will be prioritized in the future.”

There wasn’t time to add a chapter on rivers to the original Leap Ahead report, Dunbar said, but in December, the existing Leap Ahead report was replaced with one that includes a chapter on how river flows will change and how that will affect the physical condition of rivers.

“What we did not do, which I know the NGOs wanted us to do, was address endangered species, and recreation,” Dunbar said. “They wanted us to really look at rivers in a holistic way, and my point there was, that is not the point of this report.”

The point was to look at how the natural world was responding to climate change. But opening the scientific report to questions like those around endangered species or riparian vegetation restoration would require opening “the pandora’s box of water rights, and that was not something we wanted to do,” Dunbar said. 

“I’ve poured countless hours of my life into this project and we had to have boundaries on this project,” Dunbar added. “I spent every weekend for many, many months. This was not part of my day job, it was something I did on top of my day job.”

The draft of the 50 year water plan has been with the governor’s office for months, awaiting review before public release. 

Whatever the future brings, Della Russo said, it’s likely to come with tough decisions, and losses.

“But if those losses are balanced with longer-term resilience or stability in the system, then just help us understand how this is balanced,” she said. “We know pressures are just going to build on water in this system. So help us understand how the Rio Grande, as a living thing, has an opportunity to survive all these changes.”

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

It’s all white: Colorado statewide snowpack tops 140%, though reservoirs still low

By
Fresh Water News
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Ultra deep snows in Silverton, Colorado. Credit: Flickr_creative commons
Ultra deep snows in Silverton, Colorado. Credit: Flickr_creative commons

By Jerd Smith

Colorado is awash in white this spring, with statewide snowpack topping 140% of average this week, well above the reading a year ago, when it stood at just 97% of normal.

“Conditions in the American West are way better than they were last year at this time,” said state climatologist Russ Schumacher at a joint meeting Tuesday of the state’s Water Availability Task Force and the Governor’s Flood Task Force. “In Colorado we went from drought covering most of the state to most of the state being out of drought.”

Like other western states, mountain snowpacks in Colorado are closely monitored because as they melt in the spring and summer, their runoff delivers much of the state’s water.

A drought considered to be the worst in at least 1,200 years has devastated water supplies across the West. While no one is suggesting the dry spell is over, Colorado water officials said 2023 will likely allow for a significant recovery in reservoirs and soil moisture.

The snow is deepest in the southwestern part of the state, where the San Juan/Dolores river basin is seeing a snowpack of 179% of average.

The Yampa Basin, in the northwest corner of Colorado, is also nearing historic highs, with snowpack registering 145% of average, according to the Natural Resources Conservation Service Snow Survey.

There is considerably less white stuff east of the Continental Divide in the Arkansas River Basin, where snowpack remains slightly below average and in the South Platte Basin, where snowpack is just above average.

The outlook for the seven-state Colorado River Basin has improved dramatically as well, with the U.S. Bureau of Reclamation, in its March 15 report, showing that Lake Powell is likely to see some 10.44 million acre-feet of new water supply by the end of September, or inflows at 109% average.

The Colorado River Basin includes seven states, with Colorado, New Mexico, Utah and Wyoming comprising the Upper Basin and Arizona, California and Nevada making up the lower basin. And it is in the mountains of the Upper Basin, especially in Colorado, where most of the water for the entire system is generated.

That Colorado is seeing such spectacular snow levels this spring, bodes well for everyone. “This is good news for the Colorado River Basin, no doubt about that,” Schumacher said.

Still the drought-strapped Colorado River system will see little storage recovery this year, according to Reclamation, which is forecasting that Lake Powell will see storage at just 32% of capacity by the end of the year. It had dropped to just 23% of capacity last year, prompting ongoing emergency releases from Utah’s Flaming Gorge Reservoir to help keep the system from crashing.

Within Colorado, statewide reservoir storage this month stands at 80% of average, up slightly from this time last year when it registered 75% of average.

Reservoirs within Colorado are expected to see a significant boost in storage levels. Colorado’s largest reservoir, Blue Mesa, was just 36% full earlier this month, but is projected to receive enough new water this year that it will be 71% full by the end of the year, according to Reclamation.

Flood task force officials said the deep snows, particularly in the southwestern and northwestern corners of the state, could cause flooding this spring and summer, especially if there is a series of hot, dry, windy days or major rain storms.

“We are blessed in large part because our snowpack tends to run off in a well-behaved manner,” said Kevin Houck, section chief of watershed and flood protection at the Colorado Water Conservation Board. “But I will say that I am watching things more closely this year. It’s not just the presence of snow that creates our problems. It needs to have a trigger as well. The classic trigger is the late spring warmup. And what can cause even more damage is when we get rain on snow as well.”

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.

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

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

The Colorado River drought crisis: 5 essential reads

By
The Conversation US
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Sprinklers water a lettuce field in Holtville, California with Colorado River water. Sandy Huffaker/AFP via Getty Images

By Jennifer Weeks, The Conversation

A 23-year western drought has drastically shrunk the Colorado River, which provides water for drinking and irrigation for Wyoming, Colorado, Utah, New Mexico, Arizona, Nevada, California and two states in Mexico. Under a 1922 compact, these jurisdictions receive fixed allocations of water from the river – but now there’s not enough water to provide them.

As states try to negotiate ways to share the decreasing flow, the U.S. Department of the Interior is considering cuts of up to 25% in allotments for California, Nevada and Arizona. The federal government can regulate these states’ water shares because they come mainly from Lake Mead, the largest U.S. reservoir, which was created when the Hoover Dam was built on the Colorado River near Las Vegas.

These five articles from The Conversation’s archive explain what’s happening and what’s at stake in the Colorado River basin’s drought crisis.

 

The Colorado River provides water to 40 million people and some of the fastest-growing cities in the U.S., but its flow is dwindling.

1. A faulty river compact

The idea of negotiating a legally binding agreement to share river water among states was innovative in the 1920s. But the Colorado River Compact made some critical assumptions that have proved to be fatal flaws.

The lawyers who wrote the compact knew that the Colorado’s flow could vary and that they didn’t have enough data for long-term planning. But they still allocated fixed quantities of water to each participating state. “We know now that they used optimistic flow numbers measured during a particularly wet period,” wrote Patricia J. Rettig, head archivist of Colorado State University’s Water Resources Archive.

Nor did the compact encourage conservation as the West’s population grew. “When settlers developed the West, their prevailing attitude was that water reaching the sea was wasted, so people aimed to use it all,” Rettig observed.

2. Temporary cuts aren’t big enough

Western states have known for years that they were taking more water from the Colorado than nature was putting in. But reducing water use is politically charged, since it means imposing limits on such powerful constituencies as farmers and developers.

In 2019, officials from the U.S. government and the seven Colorado Basin states signed a seven-year drought contingency plan that temporarily reduced states’ water allocations. But the plan did not propose long-term strategies for addressing climate change or overuse of water in the region.

“Since 2000, Colorado River flows have been 16% below the 20th-century average,” wrote water policy experts Brad Udall, Douglas Kenney and John Fleck. “Temperatures across the Colorado River Basin are now over 2 degrees Fahrenheit (1.1 degrees Celsius) warmer than the 20th-century average, and are certain to continue rising. Scientists have begun using the term ‘aridification’ to describe the hotter, drier climate in the basin, rather than ‘drought,’ which implies a temporary condition.”

3. The looming threat of dead pool

Lake Mead and Lake Powell, the other major reservoir on the lower Colorado River, were created to provide water for irrigation and to generate hydropower, which is produced by the force of water flowing through large turbines in the lakes’ dams. If water in either lake drops below the intakes for the turbines, the lake will fall below “minimum power pool” and stop producing electricity.

If water in the lakes dropped even further, they could reach “dead pool,” the point at which water is too low to flow through the dam. This is an extreme scenario, but it can’t be ruled out, University of Arizona water expert Robert Glennon warned. In addition to drought and climate change, he noted, both lakes lie in canyons that “are V-shaped, like martini glasses – wide at the rim and narrow at the bottom. As levels in the lakes decline, each foot of elevation holds less water.”

Infographic of Hoover Dam and water levels where power general and then water flow would stop.
This graphic shows the water level in Lake Powell as of November 2022 and the levels that represent minimum power pool and dead pool.
Arizona Department of Water Resources

4. Why hydropower matters

Climate change and drought are stressing hydropower generation throughout the U.S. West by reducing snowpack and precipitation and drying up rivers. This could create serious stress for regional electric grid operators, according to Penn State civil engineers Caitlin Grady and Lauren Dennis.

“Because it can quickly be turned on and off, hydroelectric power can help control minute-to-minute supply and demand changes,” they wrote. “It can also help power grids quickly bounce back when blackouts occur. Hydropower makes up about 40% of U.S. electric grid facilities that can be started without an additional power supply during a blackout, in part because the fuel needed to generate power is simply the water held in the reservoir behind the turbine.”

While most hydropower dams are likely here to stay, in Grady’s and Dennis’ view, “climate change will change how these plants are used and managed.”

5. The resurrection of Glen Canyon

Lake Powell was created by flooding Glen Canyon, a spectacular swath of canyons on the Utah-Arizona border. As the lake’s water level drops, many side canyons have reemerged. Effectively, climate change is draining the lake.

 

A boat trip into zones of Glen Canyon that have been uncovered as water levels drop.

This is a once-in-a-lifetime opportunity to recover a unique landscape, wrote University of Utah political scientist Dan McCool. “But managing this emergent landscape also presents serious political and environmental challenges.”

In McCool’s view, a key priority should be to give Native American tribes a meaningful role in managing those lands – including cultural sites and artifacts that were flooded when the river was dammed. The river has also deposited massive quantities of sediments in the canyon behind the dam, some of which are contaminated. And as visitors flock to newly accessible side canyons, the area will need staff to manage visitors and protect fragile resources.

“Other landscapes are likely to emerge across the West as climate change reshapes the region and numerous reservoirs decline. With proper planning, Glen Canyon can provide a lesson in how to manage them,” McCool observed.The Conversation

Jennifer Weeks is Senior Environment + Energy Editor at The Conversation

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

Epic snow from all those atmospheric rivers in the West is starting to melt, and the flood danger is rising

By
The Conversation US
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Tulare Lake is reemerging as flood water spreads across miles of California farmland. Luis Sinco / Los Angeles Times via Getty Images

By Chad Hecht, University of California, San Diego

To get a sense of the enormous amount of water atmospheric rivers dumped on the Western U.S. this year and the magnitude of the flood risk ahead, take a look at California’s Central Valley, where about a quarter of the nation’s food is grown.

This region was once home to the largest freshwater lake west of the Rockies. But the rivers that fed Tulare Lake were dammed and diverted long ago, leaving it nearly dry by 1920. Farmers have been growing food on the fertile lake bed for decades.

This year, however, Tulare Lake is remerging. Runoff and snowmelt from the Sierra Nevada have overwhelmed waterways and flooded farms and orchards. After similar storms in 1983, the lake covered more than 100 square miles, and scientists say this year’s precipitation is looking a lot like 1983. Communities there and across the West are preparing for flooding and mudslide disasters as record snow begins to melt.

Satellite images show farmland with only a few small lakes in early March, then a larger lake covering that farmland by early April.
Tulare Lake, long dry, begins to reemerge in March 2023 as flood water spreads across farm fields. NASA Earth Observatory

We asked Chad Hecht, a meteorologist with the Center for Western Weather and Water Extremes at the University of California San Diego’s Scripps Institution of Oceanography, how 2023’s storms compare to past extremes and what to expect in the future.

How extreme were this year’s atmospheric rivers?

California averages about 44 atmospheric rivers a year, but typically, only about six of them are strong storms that contribute most of the annual precipitation total and cause the kind of flooding we’ve seen this year.

This year, in a three-week window from about Dec. 27, 2022, to Jan. 17, 2023, we saw nine atmospheric rivers make landfall, five of them categorized as strong or greater magnitude. That’s how active it’s been, and that was only the beginning.

Map of where atmospheric rivers arrived through the end of March 2023
Where atmospheric rivers hit during the first half of the 2023 water year, which started Oct. 1. The arrows show where the storms were strongest, but their impact reached far wider. Center For Western Weather and Water Extremes, Scripps Institution of Oceanography

In all, the state experienced 31 atmospheric rivers through the end of March: one extreme, six strong, 13 moderate and 11 weak. And other storms in between gave the Southern Sierra one of its wettest Marches on record.

These storms don’t just affect California. Their precipitation has pushed the snow-water equivalent levels well above average across much of the West, including in Oregon, Nevada, Utah, Idaho and the mountains of western Colorado, Arizona and New Mexico.

Snow water equivalent is a measure of the water in snowpack. Many basins across the West were well over 200% of average in 2023. NRCS/USDA

In terms of records, the big numbers this year were in California’s Southern Sierra Nevada. The region has had 11 moderate atmospheric rivers – double the average of 5.5 – and an additional four strong ones.

Overall, California has about double its normal snowpack, and some locations have experienced more than double the number of strong atmospheric rivers it typically sees. The result is that Northern Sierra snow water content is 197% of normal. The central region is 238% of normal, and the Southern Sierra is 296% of normal.

What risks does all that snow in the mountains create?

There is a lot of snow in the Sierra Nevada, and it is going to come off the mountains at some point. It’s possible we are going to be looking at snowmelt into late June or July in California, and that’s far into summer for here.

Flooding is certainly a possibility. The closest year for comparison in terms of the amount of snow would be 1983, when the average statewide snow water content was 60.3 inches in May. That was a rough year, with flooding and mudslides in several parts of the West and extensive crop damage.

This year, portions of the Southern Sierra Nevada have passed 1983’s levels, and Tulare Lake is filling up again for the first time in decades. Tulare Lake is an indication of just how extreme this year has been, and the risk is rising as the snow melts.

The transition from extreme drought in 2022 to record snow was fast. Is that normal?

California and some other parts of the West are known for weather whiplash. We frequently go from too dry to too wet.

2019 was another above-average year in terms of precipitation in California, but after that we saw three straight years of drought. We went from 13 strong or greater magnitude atmospheric rivers in 2017 to just three in 2020 and 2021, combined.

Map showing well-above average precipitation across California, Nevada and Utah in particular.
The onslaught of powerful atmospheric rivers pushed precipitation to well above average across large parts of the West in 2023, following three years of severe drought. Center for Western Weather and Water Extremes, Scripps Institution of Oceanography

California relies on these storms for about half its water supply, but if the West gets too many atmospheric rivers back to back, that starts to have harmful impacts, like the heavy snowpack that collapsed roofs in the mountains this year, and flash flooding and landslides. These successive storms are typically referred to as atmospheric river families and can result in exacerbated hydrologic impacts by quickly saturating soils and not allowing rivers and streams to recede back to base flow between storms.

Are atmospheric rivers becoming more intense with a warming climate?

There’s been a lot of research on the impact of temperature because of how reliant California is on these storms for its water supply.

Atmospheric rivers are long, narrow corridors of water vapor in the sky that typically start in the tropics as water evaporates and is pulled poleward by atmospheric circulations. They carry a lot of moisture – on average, their water vapor transport is more than twice the flow of the Amazon River. When they reach land, mountains force the air to rise, which wrings out some of that moisture.

In a warming climate, the warmer air can hold more moisture. That can increase the capacity of atmospheric rivers, with more water vapor resulting in stronger storms.

An animation shows two atmospheric rivers moving across the Pacific Ocean from the tropics.
An example of an atmospheric river approaching the West Coast. Space Science and Engineering Center, University of Wisconsin-Madison

Research by some of my colleagues at Scripps Institution of Oceanography also suggests that California will see fewer storms that aren’t atmospheric rivers. But the state will likely see more intense atmospheric rivers as temperatures rise. California will be even more reliant on these atmospheric rivers for its snow, which will result in drier dries and wetter wets.

So, we’re likely to see this whiplash continue, but to a more extreme level, with longer periods of dry weather when we’re not getting these storms. But when we do get these storms, they have the potential to be more extreme and then result in more flooding.

In the more immediate future, we’re likely headed into an El Niño this year, with warm tropical Pacific waters that shift weather patterns around the world. Typically, El Niño conditions are associated with more atmospheric river activity, especially in Central and Southern California.

So, we may see another wet year like this again in 2024.

Chad Hecht is Research and Operations Meteorologist at the Center for Western Weather and Water Extremes, University of California, San Diego

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The Water Desk’s mission is to increase the volume, depth and power of journalism connected to Western water issues. We’re an initiative of the Center for Environmental Journalism at the University of Colorado Boulder. The Water Desk launched in April 2019 with support from the Walton Family Foundation. We maintain a strict editorial firewall between our funders and our journalism.

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