Wednesday, June 10, 2015

WATER - A Bad Century-Old Law During Drought

"Use It or Lose It" by Abrahm Lustgarten, ProPublica 6/9/2015


Across the West, Exercising One’s Right to Waste Water

High in the Rocky Mountains, snowmelt fills a stream that trickles down into Ohio Creek and then onward toward the Upper Gunnison River.  From there, it tumbles through the chasms of the Black Canyon, joining the Colorado River, filling the giant Lake Powell reservoir, and, one day, flowing to Los Angeles.

But before the water gets more than a few miles off the mountain, much of this stream is diverted into dirt ditches used by ranchers along the Ohio Creek Valley.  Standing astride one of those ditches one day last fall, Bill Ketterhagen dug his boot soles against the concrete edge of a 5-foot-wide dam.  He spun a steel wheel and opened a gate that allowed water to pour into his fields of hay crops.

Ketterhagen, 39, manages a 750-acre ranch outside the town of Gunnison, Colorado, for its out-of-state owners, mostly growing a mixture of Meadow Foxtail, Timothy, wheat grasses and some alfalfa.  The grasses, knee-high with bursts of clover flowers and flat, slender leaves, are cut, baled and shipped to feedlots where they fatten cattle soon to be slaughtered for beef.

Thickly built, wearing overalls and a four-day beard, Ketterhagen has a degree in biology and natural resource management and once worked in a division of the U.S. Department of Agriculture.  He knows his fields could thrive with much smaller amounts of water — he’s seen them do so in dry years — but the property owners he works for have the legal right to take a large supply, and he applies the water generously.

“When we have it, we’ll use it,” he said.  “You’ll open your head gate all the way and take as much as you can — whether you need it or not.”

Ketterhagen feels he has little choice.  A vestige of 139-year-old water law pushes ranchers to use as much water as they possibly can, even during a drought.  “Use it or lose it” clauses, as they are known, are common in state laws throughout the Colorado River basin and give the farmers, ranchers and governments holding water rights a powerful incentive to use more water than they need.  Under the provisions of these measures, people who use less water than they are legally entitled to risk seeing their allotment slashed.

There are few starker examples of how man’s missteps and policies are contributing to the water shortage currently afflicting the western United States.  In a series of reports, ProPublica is examining how decisions on water management and growth have exacerbated more than a decade of drought, bringing the West to the point of crisis.  The Colorado River is the most important source of water for nearly 40 million people across California, Arizona, Nevada, New Mexico, Wyoming, Utah and Colorado, and supports some 15 percent of the nation’s food crops.

But the river is in trouble, and water laws are one significant cause.  Legal water rights and state allocations have been issued for more water than the river, in an average year, can provide.  Meanwhile its annual flow has been steadily decreasing as the climate changes and drought grips the region.  And so, for more than a decade, states and the federal government have tried to wring more supply out of the Colorado and spread it further, in part by persuading the farmers and ranchers who use the vast majority of the river’s water and have the largest water rights to conserve it.

But in many ways it’s the vast body of often-antiquated law governing western water rights, officials acknowledge, that actively undermines conservation, making waste — or at least heavy use — entirely rational.

“Water is money,” said Eugene Backhaus, a state resource conservationist for the U.S. Department of Agriculture’s Natural Resources Conservation Service, which works to help ranchers use water more efficiently.  “The way the current water law structure is, if they don’t use it for the assigned use, they could lose the water right.”

Adding to the problems, the states linked by reliance on the Colorado govern their water resources separately and have not standardized their water laws.  While states have made incremental adjustments to those laws, they have not recast them to address the new needs of a region undergoing vast changes.  Some rules force ranchers to dry up entire streams, others ignore the ecological value of maintaining a healthy river.  The common element of all these laws is the blunt ethos of the West:  Water exists mainly in order to get used up, even if that means deepening the problems of neighboring states.

Ketterhagen understands that the ranch he runs sits atop a system under enormous stress and that he’s wasting water in a region that desperately needs it.  But he also understands Colorado water law — rights are precious, and sometimes more valuable even than the land to which they are attached.

Throughout the long, hot summer, Ketterhagen let water course through his fields, irrigating his pastures and vitalizing the gravelly soil beneath.  Last spring, the water flowed over the grass’s roots, drowning them, and climbed past the first leaves of the sprouting plants until it stood calf-deep.

“She’s my gauge,” Ketterhagen said, pointing at Gilli, his black and white Aussie heeler mix, who bounded around the field.  “When I see a little bit of spray kicking up behind her, it’s just right.”

The body of law governing how water is distributed in the West was shaped by the gold rush.

As people were lured to settle vast, uninhabited and arid parts of the country, they staked their claims to land and water only to face fierce competition upstream as rivers were diverted to sluice for treasure.  Courts decreed that water would be saved for the first to use it.  Since most property was far from streams and there was little rain, officials then gave settlers formal rights to take water out of rivers and move it across dry land where it could be used to mine minerals or turn rocky fields into farms.

As western territories became states, those states institutionalized the rules — sometimes in their state constitutions — first locking in water rights for those who were already there and then issuing more to those who requested them, on a first-come-first-served basis.  For irrigation, shares were apportioned according to crude 19th-century notions of how much water was needed to get 40 acres of dry soil to produce a crop.  In times of drought, those with the oldest, or most senior, rights to water would get it first; those with the newest rights would have to wait at the back of the line.

It wasn’t until the 1920s that the seven states whose territory was touched by the Colorado River and its tributaries began to compete for access to the source of that water.  Herbert Hoover, then the U.S. Secretary of Commerce, led negotiations in which the states agreed on an estimate of the amount of water in the river.  The rights to most of the flow were split between states in the upper and lower basins.  Colorado, Wyoming, Utah and New Mexico got half, while Arizona, California and Nevada got the rest.  This was, in part, to keep California — already the most populous and industrious of western states — from taking it all.  Each state continued to govern the rights to water distributed within its borders.

But even in that first 1922 compact, more water was divvied up on paper than would actually run through the river.  Officials, it turned out, had estimated the Colorado’s average flow after a period of unusually wet conditions, calculating that 18 million acre-feet flowed through the river each year, and dividing up some 15 million acre-feet, or 4.8 trillion gallons of water, between the states.  Within two decades they began to understand their folly:  During many years as little as 12 million acre-feet flowed, and under normal conditions the river would rarely yield close to the amount of water expected.  And yet the states piled on more obligations, bringing the amount of water parceled out even higher.  In 1944, for instance, Congress signed a treaty promising an additional 1.5 million acre-feet to Mexico, where the Colorado River naturally ends.

Today, 15 years into an epochal drought, 16.5 million acre-feet of water have been allocated, while the river, during the recent drought, has been flowing at a rate of around 12.4 million acre-feet each year.

Still, aside from a 2007 temporary pact to divide the pain of river shortages between them, officials in the seven states have never renegotiated the original river compact or fundamentally changed the foundations of water law that lead to overuse.  The result is a set of codified principles designed for a different era and divorced from today’s environmental realities.

The term “water law” in the Colorado River basin has come to refer to a monstrous volume of federal statutes and agreements, court precedents and state laws and regulations that can differ from place to place and have changed incrementally over the years but are structured by the interstate agreements to divide the river.  Most of those state laws share the basic principle that the first people to arrive in the West should hold the most senior rights to its water.

The notion of “first in time, first in right” has persisted even as the need for water has exploded in urban areas that sprang up long after most water rights were distributed and therefore rank lowest in priority.

Today, 15 years into an epochal drought, western states continue to operate as if there is more water flowing in the Colorado River than there actually is.

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