Water and Waste Water
Class #7
Allocation of water supplies in arid regions; Colorado River and "The Law of the River".
1. Announcements
2. Current events
3. Allocation of water supplies:
Hypothetical
- River. Adjacent property. Non-adjacent property.
- Who owns? Who should be able to use? What limits? Why?
- Uses: Domestic. Farm. Mining. Waste (fountain)
- Not enough water
Water Law in a Nutshell
Riparian Doctrine
Common law England
- Riparian water rights: Use water from lake or stream next to property.
- Water not belong to public generally or to state, but to "riparian" proprietors who own land bordering water course
- All have "riparian rights" and none can use water so as to deprive others of these rights.
- Only applies to riparian parcel. Can’t be conveyed for use nonriparian land nor can be lost by nonuse.
- Nature of right:
- Natural Flow Theory: Riparian owner entitled to water in bordering stream or lake w/o material diminution in quantity, quality, or velocity.
- Reasonable Use Theory: (More common) Right each riparian owner to use stream subject to like reasonable right other riparian owners. Each riparian owner must submit to reasonable use by others, and can’t enjoin use unless substantially interferes with needs of those who have like right
- Natural v. artificial uses:
- Natural: Uses necessary for daily sustenance of humans (household, gardening, minimal # livestock)
- Artificial: All others (irrigation, manufacturing, etc.)
- Upper riparian can take all need for natural. Can’t take for artificial unless enough water for domestic needs of all.
- Riparian doctrine to U.S. Fast forward to 1849.
Miner
California gold rush. Need water to separate gold from gravel. Gold not always have foresight to be next to water. Minors dug ditches to move water, sometimes long distances. Minors developed own law, what later adopted by courts and become known as Prior Appropriation Doctrine.
Prior Appropriation Doctrine
Prior Appropriation Doctrine: (Riparian not work well in arid west).
- "First in time, first in right" Water initially belongs to state, but right to divert and use can be acquired by individual whether or not riparian. Initially, individual rights established by actual use. Each appropriator acquired vested property right to divert given quantity water at given times from given place, to use at another place for given purpose. Priority of rights determined by priority of beneficial use. If decrease in stream flow, priority according to time of appropriation. Can be transferred for use on other land. Can be lost by abandonment. System evolved by statute each state. Very complex.
Colorado River:
Colorado River most legislated, most debated, and most litigated river in entire world.
Also more people, more industry, and more significant economy dependent on it than any comparable river in world.
- If stopped, 4 years capacity in reservoirs before have to evacuate much of southern California and Arizona and good portion Colorado, NM, Utah and Wyoming.
- >1/2 water greater LA, SD, Phoenix. Grows much of US domestic production fresh winter vegetables. Lights Las Vegas (whose annual income ¼ entire GNP Egypt, only other place where so many people dependent on one river’s flow.)
- Colorado and tributaries drain portions 7 states and Mexico
- 1400 miles long
- Water shed 246,000 square miles.
- Water from river serves nearly 25 million (16 million greater LA)
Allocation Colorado River water governed by group federal laws, interstate compacts, an international treaty, court decisions, federal contracts and agreements come to be known as "Law of the River.
Law of the River:
The Colorado River Compact of 1922
1901: 2 Southern CA developers raised money to build diversion channel to irrigate what had been known as the "Valley of the Dead". Renamed it Imperial Valley.
By 1904: silted up. Another bypass. Silted up. Another. Silted up. Finally permission from Mexico to cut another channel below border through Mexico and back to Imperial Valley. Temporary while cleaning original channel. Cheap. February flood on Gila River above Mexican channel. Destroyed control gate. All of Colorado flow into Salton Sink, once again formed Salton Sea.
By 1907 stemmed flow. CA political effort for huge dam upstream to control floods. But from perspective of basin as whole was problem only CA in position to use water (Prior appropriation doctrine). Water belong to CA as soon as began to use it. Dam defeated.
Negotiation Colorado River Compact by representatives 7 states under guidance Commerce Secretary Herbert Hoover
Colorado River Compact
What now called Bureau of Reclamation estimated average annual flow 17.5 million acre feet. Compact divided basin arbitrarily at Lee’s Ferry near N. AZ border. CA, AZ, and NV lower basin. WY, CO, NM, UT in upper basin. Each basin 7.5 million acre-feet (up to each basin how allocate within). 1.5 million to Mexico. Final million as bonus to lower basin whose delegates threatened to walk out if not get better deal.
Signed by delegates 1922, but needed ratification voters or legislators respective states. CA not ratify w/o authorization Boulder Canyon Dam and new all American canal. AZ not ratify before lower basin allocated. Other key players own reasons.
Law of the River
Boulder Canyon Project
1928 Congress Boulder Canyon Project
- Authorized Boulder Dam and All-American Canal on condition 6 of 7 states ratify Compact and CA limit annual diversion to 4.4 million acre-feet. 300,000 for NV, leaving only 2.8 million for AZ. AZ refused to sign but compact ratified by other 6.
One small problem: Became apparent in decades that followed that Colorado river nowhere near 17.5 million acre-feet average annual flow.
Law of the River
Seven Party Agreement 1931: Defined California’s water use priorities for Colorado River. Water delivered under contracts that establish rights, priorities, fees, etc.
1935 Boulder Dam (by then Hoover Dam) completed and dedicated by FDR. Drew 10,000 people, but one important dignitary who did not attend was Governor of AZ.
- Compact not give AZ anything. 7.5 million to lower basin. Boulder Canyon Project Act implied 2.8 million, but only on paper. Southern CA growing so fast would soon exceed its 4.4 million. What happen if CA begin "borrowing" some of AZ’s unused flow? Would AZ ever get it back if millions of Californians depended on it? AZ not be able to use even 2.8 in foreseeable because most of people and irrigated land in central part of state. Couldn’t afford to build canal on own and CA had vowed to block federal aqueduct (CAP) until major issue of Gila river resolved.
- Gila, with tributaries Salt and Verde, AZ only river of consequence. Historically, much evaporated in desert and average flow into CO River at Yuma 1.1 million acre feet. Salt River Project had increased storage and reduced evaporation to give state 2.3 million acre-feet to use. Which figure to deduct from 2.8 million allocated? AZ said neither, or at most 1.1. CA said 2.3. Would leave only 500,000. Not enough to sustain growth. But CA vowed Central AZ Project never be built if AZ reasoning prevailed. Comic opera where AZ almost to war with CA and US
Treaty w/ Mexico 1944:
- Formally recognized Mexico’s right to 1.5 million set aside by Colorado River Compact. 1944 AZ finally signed Compact. 1948 Upper Basin states apportioned their 7.5 among themselves
- Leaving only two major legal issues:
1. How much of AZ’s allocated 2.8 could take from main stem (i.e., how much deduct for Gila) and
2. Whether CA could invoke prior appropriation and deny AZ most of that.
- Real issues more to do with nature and economics and they only beginning.
Arizona v. CA:
By 1960, AZ groundwater overdraft (difference between pumping and replenishment) 2.2 million. Dry years approached 4 million.
Meanwhile, CA continuing to grow and increase use.
- 1952 diversion increased to 5.3 million, 900,000 more than entitlement.
- AZ filed suit in US Supreme Court to try to resolve. Became one of longest-running lawsuits in history Supreme Court.
1963 decision and final decree 1964. Upheld AZ on almost all counts.
- Gila exclusively AZ execpt for small portion NM. AZ use of Gila water not count at all against 2.8 main-stem Colorado entitlement, which remained intact.
- Real zinger: If during natural calamity or drought river not satisfy all claims, Interior Secretary decide who got how much.
- One exception: If someone water rights predating Colorado River Compact, those rights satisfied first, no matter what.
- What mean? In 19th century, Native Americans put on reservations in southwest. Land no one else wanted. Terrible farm land. Because so poor, required lots of irrigation water and government implicitly attached large water rights to it—rights confirmed in 1908 by Supreme Court in what called Winters Doctrine. Navajo Reservation alone implicit rights 600,000. And those rights took priority.
Even worse. 17.5 million used in Compact based on 18 years of flow measurements by crude instruments. By 1950s began to appear more accurate average something like 11.7 million or maybe as high as 15 million. How to augment?
Fascinating conflicts over dams in Colorado, Utah, and notably in Grand Canyon in AZ. Funding CAP. Colorado River Basin Storage Act. Not time to go into here. Stalled in Congress mid 1960s. One aspect is relevant, though.
- CA demanded as its price to go along that before AZ any drop its entitlement, CA get full 4.4 million guaranteed. No equitable sharing shortfalls, no across-the-board cuts if drought. Trying to reverse what lost in AZ v. CA lawsuit. Became known as California Guarantee.
- By 1967, apparent Grand Canyon dams have to go.
- 1968 Colorado River Basin Project Act passed by Congress and signed w/o them. CAP approved (along with number of other projects).
Fast forward to today. CAP completed. Delivering water, but quality poor. AZ still using groundwater and avoiding CAP water if possible. Decrees in 1970s and 80s gave AZ, CA, and NV percentages any surplus water declared available by Secretary of Interior. CA entitled to 50% the surplus. Secretary also may permit CA to utilize water unused by AZ and NV. Surpluses in recent years. What can AZ (and NV) do to prevent CA from using water and store for later years?
- 1996 AZ began state-authorized program establishing AZ State Water Bank that would store Colorado River water off-stream (e.g., groundwater storage basins).
- December 31, 1997 Department of Interior issued proposed rule that, if implemented, "would increase efficiency, flexibility, and certainty in Colorado River Management.
- Would establish procedural framework under which entities such as state-authorized water banks in Lower basin states of AZ, NV and CO could store unused portions Colorado River apportionment in another Lower Basin state for future use. (E.g., Off-stream storage in reservoir, groundwater)
- When storage credits redeemed, e.g., by AZ for water it had stored in NV, water = to credits that would otherwise be supplied to NV from Colorado River would be supplied from off-stream storage site w/i NV. NV reduce its Colorado Water use by like amount and Interior make available to AZ equal amount water from Colorado River.
ENV 410B - Lectures