Creeping forward on the Colorado River

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The Colorado River arrives at San Luis, March 25, 2014

“The network”, as I call the Colorado River governance structure in my book, is gathering this week in Santa Fe, New Mexico, to among other things celebrate the signing of a new agreement extending the agreement between the United States and Mexico over water sharing and allocation on the Colorado River.

Two years ago at this time, I was nervous as hell, putting the final touches on a book that argued for the fragile durability (if such an oxymoronic thing makes sense) of the framework of agreements that have held the Colorado River Basin governance process together, prevented it from spinning apart in conflict and litigation:

The events of the last two decades—the 2001 negotiations to wean California of its dependence on surplus water, the 2007 deal to share shortages, the US-Mexico agreement embodied in Minute 319—provide an indication of what the path forward might look like. They do not suggest that the Law of the River’s imperfections and ambiguities are irrelevant. Instead, they suggest that “the network” has come to the shared conclusion that arguing over legal interpretation is the wrong path. Those ambiguities and imperfections are flaws to be corrected through collective action and agreement rather than winner-take-all legal battles.

What we need is a negotiated solution that avoids narrow interpretations of the Law of the River, that reduces allocations broadly, enables trading among water users, and capitalizes on the reality that, as we have seen, communities in the Colorado River Basin have a remarkable ability to preserve their ways of life when supplies run short.

There’s something not quite right about that last paragraph, which I probably dimly realized even at the time I wrote it in 2015, but which I clearly realize now – “a negotiated solution”. In fact, what we’ll inevitably have on this river, I now realize, is a state of permanent negotiation. We can see the specific deals underway now or needed:

  1. the new Minute 323 agreement between the US and Mexico (with its sheaf of side agreements among the many water agencies involved)
  2. The ill-named “Drought Contingency Plan”, an agreement for water users on both sides of the border to take deeper cuts as Lake Mead drops
  3. The sub-agreements needed to make DCP work, including arrangements to do “demand management” in the Upper Basin; the necessary California side deal on the Salton Sea; Arizona’s attempt to sort out its internal politics regarding how the burden of deeper cuts is borne, and who will drive that process
  4. renegotiation of the 2007 Interim Guidelines, which expire in 2026

We seem to have “1” down, unless something blows up between this morning and the various US-Mexico signing ceremonies over the next couple of days. “2”, a DCP, seems close (though it seemed close back in 2015, when I was nervously wrapping up my book’s manuscript and wondering whether they’d actually do the deal in the time between the manuscript’s submission and publication, or whether the thing would fall apart in that interval). “3”, the deals needed to make a DCP work, still seems hard, which is where the risks lie for “2”.

The last, renegotiating the 2007 Interim Guidelines, is in a sense already underway. In fact, I’d argue that it’s been going on all along, ever since the Interim Guidelines were signed 10 years ago. This, I think, is the central feature of the new shape of Colorado River water governance.

This is the critical piece – a view that all these are really manifestations of the same thing, an underlying, ongoing process of river governance that includes, in part, a process of continuing negotiations. It includes constant evaluation and reevaluation of problems, constant jockeying around possible solutions, which are then slotted into the various decision processes as appropriate.

I’m moderating a panel at the Santa Fe meeting with the provocative title, “Are we up to the challenges?” This is the stuff we’ll talk about.

Preliminary year-end data suggest New Mexico will meet its Rio Grande Compact obligations this year

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Preliminary year-end modeling suggests New Mexico is in good shape to meet its obligations to deliver water to Texas under the Rio Grande Compact in 2018, according to data presented Thursday by the New Mexico Interstate Stream Commission to the executive committee of the Middle Rio Grande Endangered Species Collaborative Program.

In a counter-intuitive twist, meeting compact obligations is harder for New Mexico in wet years than in dry ones, because the state’s downstream delivery obligations goes up in wet years. But between the water already delivered down the river to Elephant Butte Reservoir and a reserve still in storage in El Vado Reservoir on the Rio Chama, New Mexico should be able to make its compact delivery books balance, an ISC staffer told the executive committee members.

In practical terms, this means a significant slug of water moving through the system in November and December to balance the books, a trick we’ve seen water managers use in recent years – store as much as they can upstream, then release whatever portion is needed in the last couple of months of the year to meet compact delivery obligations.

In policy terms, it means continued success in bringing water supply and use into balance in the Rio Grande Valley of central New Mexico. Since 2000, despite persistent drought, we’ve overdelivered to Elephant Butte by more than 200,000 acre feet.* In addition, the aquifer beneath Albuquerque has risen 15-20 feet thanks to reduced groundwater pumping.

* wonky detail: During that time, our net compact balance with Texas has actually declined. That is not because we are underdelivering, but because of a technique called “relinquishment”, in which we transfer some of the surplus we’ve delivered to water users in southern New Mexico and Texas in return for certain other benefits.

 

Westlands California water tunnels “no” could be “fatal blow”

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This is a big deal:

Citing concerns about costs to individual farmers, Westlands Water District’s board of directors voted 7-1 against participating in the project, known officially as California WaterFix.

Westlands is the first major water agency to vote on the project, and other big districts are expected to make their decisions in the coming weeks. Because the sprawling agricultural district in Fresno and Kings counties would have shouldered about a quarter of the project’s costs, the vote could represent a fatal blow. (emphasis added)

That’s Kasler and Sabalow, the Sacramento Bee’s water team, on yesterday’s stunning Westlands vote.

What we seem to be in, as OtPR noted recently, is a discussion about the best way to bring California’s irrigated acreage into line with hydrologic reality – as in, there’s not enough water to keep irrigating the acreage we now irrigate – how much do we push engineering solutions (tunnels, deeper wells) and how much do we find tools to gracefully reduce the amount of land in production.

disaggregating agriculture

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One of the great insights from my University of New Mexico colleague Bob Berrens, chair of the economics department and my predecessor as director of UNM’s Water Resources Program, is the importance of disaggregating agriculture.

Much water policy discussion, rightly, revolves around the agriculture-municipal distinction. With ag getting (and needing) a much larger share of the water in arid western North America, the distinction is important. But this Faith Kearns piece out of California’s Central Valley is a reminder that ag is no one thing:

Small farmers were hit hard by California’s drought. Perhaps none as hard as the Hmong and other Southeast Asian farmers that lease small plots of land, often with declining groundwater levels, shallow wells, and outdated irrigation systems. Yet, many of these small farmers persist, growing an incredible variety of tropical and subtropical crops in California’s temperate climate.

According to a 2007 survey, around 900 out of a total of 1400 Southeast Asian farms in Fresno County in California’s Central Valley are Hmong. The Hmong largely arrived as refugees from Laos after government upheaval in the 1970’s. For many, farming is part of who they are, despite the challenges.

And, the list of challenges for these small farmers can be long: not owning the land they farm, decreasing acres of land to lease due to urbanization and the potential for growing higher value crops than the Hmong specialize in, language and cultural barriers, and competition for groundwater.

Much of the ag around these small farmers is big, industrial scale farming. As California wrestles with the management of its groundwater, it’ll be important to recognize the full range of agricultural water users.

Drought and the Presidency

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Putting together a lecture for tomorrow for UNM Water Resources Program students on “drought” –  how we define, measure, and think about it – I noticed that Donald Trump, during a visit to North Dakota, seems to have brought up the issue, to wit:

I’ll take “Presidential comments on drought” for a thousand, Alex!

In bringing you to view the incidents most deserving attention which have occurred since your last session, I regret to have to state that … an unusual drought has prevailed in the Middle and Western States…. I am happy, however, to have it in my power to assure you … that the produce of the year, though less abundant than usual, will not only be amply sufficient for home consumption, but afford a large surplus for the supply of the wants of other nations.

That’s James Madison in his Third Annual Message to Congress, December 7, 1819, in the first recorded reference to drought (down the rabbit hole!) in the UCSB archive of stuff presidents wrote and said.

Not surprisingly, Herbert Hoover and Franklin Delano Roosevelt had a great deal to say about drought (think “dust bowl”), and Barack Obama in the waning days of his presidency celebrated the end of the Chicago Cubs’ World Series drought.

As we’ll discuss in tomorrow’s class, it is a word weighted with many meanings.

Tamarisk beetle die-off not saving as much water as expected

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The tamarisk beetle, introduced a decade ago to try to beat back an invasive tree clogging western rivers, has not saved as much water as hoped, according to new research by a team led by the USGS’s Pamela Nagler. Nagler and her colleagues used satellite data to estimate tamarisk water use before and after the beetle’s arrival. They found

  • tamarisk wasn’t using as much water as folks had thought
  • tamarisk water use post-beetle was higher than expected because “tamarisk stands tend to regrow new leaves after defoliation and other plants help maintain canopy cover”

We’re not at equilibrium yet, as the beetle keeps expanding its range. More study needed.

H/t the invaluable Brett Walton’s Federal Water Tap.

But do we actually need more water?

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If I’m to make any useful contribution in these waning years of my career as a professional water wonk, it is trying to make this point:

John Fleck, director of the Water Resources Program at the University of New Mexico, said there is no clear need for the water – not now or in the foreseeable future.

“Growth no longer necessarily demands more water because conservation is happening more quickly than growth is,” said Fleck. “That decoupling is the central feature of water management in the West right now that we need to come to terms with. Population is going up and water use is going down in absolute terms.”

Palo Verde Irrigation District sues Metropolitan Water District over Colorado River water

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Palo Verde Irrigation District alfalfa, Blythe Calif., February 2015, photo copyright John Fleck

One of California’s largest Colorado River farm water districts is suing the state’s largest municipal water agency, charging that efforts to move farm water to cities are threatening the viability of agriculture in one of the oldest farming valleys on the river.

The Palo Verde Irrigation District, in a suit filed last month in Riverside County Superior Court, is charging the Metropolitan Water District of Southern California with “thinly veiled attempts” to turn agricultural land it owns in the Blythe Valley into “water farms” by placing water consumption limits and fallowing requirements on the land in order that water from the parcels could be moved to use in Southern California’s coastal cities.

Sorry, I only have a scan of a fax, but here’s PVID’s opening gambit:

PVID v. MWD

(For those interested in following along at home, it’s Case No. RIC1714672 in Riverside County Superior Court.)

Met and PVID have a long and cordial relationship, with one of the pioneering ag-urban transfer agreements that compensates farmers for fallowing land in dry years to move water to cities. But the relationship has been complicated in recent years by Met’s decision to buy up some 22,000 acres of land in the district. The lawsuit is a first salvo in what’s shaping up as a conflict over whether, if water use is reduced on the land Met owns, that saved water can be then shipped via the Colorado River Aqueduct to coastal Southern California cities.

In its suit, PVID argues that there’s what we economics faculty would call “an externality” that must be considered under California’s environmental review statutes:

PVID v. MWD

To be clear, Met has repeatedly insisted that it is not going to dry up the Palo Verde Valley. As Tony Perry put it in the LA Times two years ago:

Their message: No harm will come to the agricultural economy of the Palo Verde Valley. MWD plans to abide by the 2005 agreement, which caps at 35% (26,000 acres) the amount of the valley’s farmland being fallowed. More than 25,000 acres are fallowed currently.

Randy Record, the MWD board chairman, said he wants to reassure farmers and others in Palo Verde that the local economy will not be hurt.

“I’m a farmer myself,” Record said. “For me, the [fallowing] program is not a success unless it benefits both parties.”

But for what it’s worth, now they’re all in court.

This implicates deep questions in these ag-urban water transfers – should preserving agricultural communities be a policy goal, and if so how to achieve it?

This is a conflict that will be closely watched across the West, because if rather than negotiating complex water transfer deals with ag agencies cities can simply buy up farm land and take the water, the policy landscape (and the underlying real landscape, shaped by those policies) becomes a very different thing.

Was prior appropriation really about distributive justice?

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From Jill Robbie at the University of Glasgow, a nice explanation of David Schorr’s revisionist account of the evolution of the “doctrine of prior appropriation” in western water law:

For some law and economics scholars, the evolution of the prior appropriation doctrine is explained due to the high value of water in the dry climate and the necessity of a private property regime to ensure maximum utilisation of this valuable natural resource. As a result, the history of prior appropriation is often used as evidence of the superiority of private property over a common property regime for scarce resources.

David challenges this traditional view by digging deep into archival material from the mid to late 19th century in Colorado. Using this material, he shows that the ideology prevalent in 19th century western America was stanchly set against speculation and corporate ownership. The development of prior appropriation, where water rights are restricted by actual use and made transferable was, David argues, motivated by principles of distributive justice rather than economic efficiency and wealth maximisation. Due to this finding, David argues that property regimes are often more nuanced and complicated than a strict distinction between private property and commons. He shows that the prior appropriation theory in Colorado grew from a system of public property and provided private rights to water which were transferrable in order to try and ensure as wide a distribution of rights among actual users as possible.

Robbie’s comparative discussion of Scotland and Colorado, drawing on the distinctions between common and private property embedded in water law in both places, is fascinating and worth a click.