Can Reclamation Change its Ways?

There has been lots of chatter in the blogosphere and elsewhere about the recently released Colorado River Basin Water Supply and Demand Study from the Bureau of Reclamation (BOR).  This really is a ground-breaking study in many ways: it enshrines the likelihood that climate change is likely to have an impact on water supplies in the basin in the future; it acknowledges that the lower basin is already out of kilter in the supply vs. demand equation, and is highly dependent on deliveries of excess water from the upper basin to continue meeting that demand; and probably biggest of all, it largely acknowledges that the era of large public works projects to address water needs is probably over.

Here It Is!

If you remember waaaay back in April, I posted about a new law that had just been passed by the Arizona legislature that would make it very difficult to establish in-stream flow rights in Arizona.  At that point the bill was on its way to the governor's desk, where it would shortly be signed into law.

Well on Aug. 3 that new law went into effect and pretty soon Arizona Dept. of Water Resources had posted their guidance on implementing the law and a link to download the new in-stream flow application form.  They can be found here.

Now you might think this would be pretty much a tempest in a teapot, after all the opportunities to appropriate surface water in Arizona are effectively pretty limited at present.  And experience has shown that the most effective means of protecting in-stream flows around here are by having the most senior rights on the downstream end of the river system (see SRP).

But what this means is that our state government does not believe in the value of maintaining environmental flows in rivers (case in point) and wishes to protect existing "uses" of water from the threat of "non-users" or should I say "non-economic-benefit-providing users".  And by economic benefit I of course mean the kind of economic benefits that flow to highly favored entities among our state legislature.

New Website from Nature Conservancy

I received an email earlier this week announcing a new website that has been set up by the Nature Conservancy, called the Great Rivers Partnership.  Here's what it is about according to their email:

We’re excited to announce the launch of the The Nature Conservancy’s Great Rivers website http://greatriverspartnership.org/, a place where anyone whose life or livelihood is enriched by rivers can learn how we can all work together to protect these waterways.  The Nature Conservancy’s Great River Partnership convenes scientists, industry leaders, government and non government agencies, and others to exchange resources and find shared, pragmatic solutions that will support sustainable management and development of whole river systems.

As you well know, when a large river is healthy a diverse community of plants, animals, people and their industries can thrive. Everything that happens in and around a river system affects us all and the positive benefits are many. These waterways ensure power to large cities, drinking water to millions and transportation of crucial goods. They support vital ecosystems that fuel fisheries, enrich the soil and provide natural flood management.

 Sounds like some good ideas we can all support.  I'm a strong supporter of the model for conservation that the Nature Conservancy follows and I'm hopeful this website will prove to be a great resource for ideas that support that model.  Check it out when you have a chance.

Oh and there's a video you can check out too:

Colorado Considers Adopting Public Trust Doctrine?

I came across this link courtesy of Aquadoc's Weekly Round-up of water news.  Seems a few people in Colorado are dissatisfied with their current system of reasonably secure property rights in the use of the state's water.  They are placing initiatives on the ballot later this year that would formally adopt a strong public trust doctrine.  The texts of the proposed initiatives can be found here and here.  Essentially what this would do is still allow you to have your water rights - whether derived from prior appropriation or whatever.  But those rights would always be subject to rights of the state to protect the water on behalf of the people.  So if someone decides that a world-class trout fishery is more important to the state than a valley full of farmers, the state could step in (theoretically) and tell the farmers to stop diverting water for irrigation so that the trout stream can thrive.  This is a concept that exists in many places but only rarely has it been found to trump existing property rights.  In this case, the wording of the initiative states pretty clearly that the public trust is superior to private property rights.  I don't see this going very far.

New legislative road block to in-stream flow rights in Arizona

This little beauty apparently just popped up this week as a strike everything amendment to one of the bills in the legislature that was intended to look at creating a new water right in Arizona - to harvested rainwater.  The rainwater harvesting legislation first popped up last year - I wrote about it here at the time.

This new incarnation of the bill is intended to make it much more difficult to establish in-stream flow water rights in Arizona - something that's already challenging enough.  For some helpful background on the issue, check out this summary that was just posted on the website of Montgomery & Assoc., a consulting firm here in Tucson.  Looking at the legislative history of the bill, it started out as a bill to establish a pilot program to demonstrate feasibility of augmenting groundwater supplies by harvesting rainwater and directing it to recharge basins.  Then about a month ago the striker was introduced with the new language setting what appears to be an outrageously high bar to get a permit application considered.  In the past an applicant had to submit one year of flow data, then had 4 years to submit additional data supporting the flow claimed in the permit.  This new bill requires submitting 5 years of data up-front along with a demonstration of the amount of water needed for the claimed use and a showing that there is adequate flows to accomplish the use.  That last part is quite difficult to show because you are establishing a junior right on a stream that is going to be over-allocated from the get-go.  But collecting 5 years of data before you even apply for anything will also be really difficult.

As the piece on the M&A website notes, there have been some issues with previously approved in-stream flow permits, but this change doesn't really do much to address those issues - it just creates a nearly insurmountable road-block to future applications.  I think this is a bad idea for the future of environmental water uses in Arizona and hope the governor will see the benefit of vetoing this legislation, so that a better solution to the concerns with these types of water permits can be address with different legislation.  If you agree I encourage you to contact the Governor's office, at (800) 253-0883 and tell her to veto SB 1236.

Some worthwhile things to read

I'm way overdue on one of these and only a little bit on the other.

I have often wondered if the concept of unitization (a governance regime for oil/gas reservoirs that imposes reservoir-wide management by combining the interests of multiple producers under a single management entity) could be applied to aquifer management.  In my opinion there are certain aspects of existing forms of aquifer management that incorporate elements of unitization - adjudicated groundwater basins probably come closest, but none are truly unitization as practiced in the oil fields.  Todd Jarvis, who is on the faculty of Oregon State University, as part of their Institute for Water and Watersheds, recently authored a paper (links to the abstract, I think you have to pay for the full paper) that looks at this idea from a theoretical perspective.  Todd points out in an email that this approach might be useful in places, such as California, that have very little existing management of groundwater resources but considerable experience with unitization in oil fields.  It's an interesting idea that I think merits further study.

The other document that is of great interest to me is the final Cornerstones Report on Market-Based Responses to Arizona's Water Sustainability Challenges prepared by the talented folks at Ecosystem Economics and the National Fish and Wildlife Foundation under a grant from the Walton Family Foundation (who have been funding a number of initiatives related to preservation of riparian ecosystems in Arizona).  I haven't had a chance to do much more than glance through the report, but I did have a chance to review a draft copy last winter and participated in one of the workshops that helped brainstorm ideas to inform this report.  It's a very honest and thorough assessment of the realities and challenges associated with using market-based approaches to securing water for environmental needs in Arizona and I highly recommend taking a look if this interests you.

Development Community Attempts to Derail Environmental Water Allocations

Previously I alluded to efforts by the development community in Southern Arizona to derail plans by the city and county to allocate up to 10,000 acre-feet of treated sewage for environmental uses in the region.  These folks have decided that the process for allocating this water to environmental uses wasn't sufficiently rigorous and risks the loss of a significant portion of renewable water that can be used to support future population/economic growth.  They sent a letter to both the County Board of Supervisors and the City Council saying (among other things) that: "[e]ffluent is a highly reliable, locally available component of our region’s renewable water supply portfolio" and "the proposed IGA does not contemplate replacement of these entitlements, which are needed to promote and support regional economic growth."

Whoa!  Wait a minute.  I didn't know that this water was surreptitiously taken from some magical bucket of water reserved to support future growth in the region?  Admittedly, that is one possible use for that water - not to be turned into potable water to be provided to future residents of Tucson (unless state law changes, that's currently illegal), but to be recharged to generate storage credits that permit future pumping of groundwater to supply homes and businesses.  But this water belongs to the entities that generated the effluent (the city and the county), who are free to allocate it in ways they believe will best benefit the region.  Clearly there was some discussion within the community when the decision was made to set aside this water for environmental restoration.  I don't remember any similar discussion when the decision was made to wipe out 90% of the riparian habitat in the region so that water could be provided for the growth of the community.

But the current reality is that most of that water is currently wasted (this links to a fairly large pdf, but go to page 6 - the table shows where the water goes from the treatment plants - the row titled AZPDES discharge is what is dumped in the river; some of that generates storage credits, presently, but most of it does not and quite a bit of it actually flows out of the AMA).  It does support some pretty degraded habitat along the Santa Cruz River, downstream from the sewage treatment plants and when the upgrades of those plants are completed in the future, the quality of that water will actually support some aquatic life.  But for now, some of that water is used to supply the reclaimed water system (replacing groundwater pumping for turf irrigation), a portion of it recharges naturally along the rivercourse and earns credits for various entities, but over 20,000 acre-feet of that water provides essentially no benefit to the region.

Fortunately, both the city and county governing bodies chose to continue with plans to implement their agreements for dedicating this portion of the water to environmental uses.  But I suspect this battle is not entirely over, because parties wishing to use this water for environmental projects still have to go to the city and county to be approved to take it.  Many of the arguments being made will be made again, especially because water supplies will almost certainly be tighter at that point than they are now.  But when it comes to finding ways to restore lost riparian habitat (and especially the water needed to do so) I think this is the most promising avenue to realize that objective.  It's not elegant, it's not simple.  But it may just be effective.

Allocating Water for the Environment

View of the Santa Cruz River near downtown Tucson from 1904.
Copyright Information: 1904 - Arizona Historical Society. Photo ID: 26691


Back in 2009, when I participated in a study of regional water resources with the objective of finding policies that would encourage sustainable water use in Tucson and Pima County (the City/County Water study - see multiple previous posts), one of the key findings of that study was that future water planning in the region needs to incorporate environmental water needs as well as water for people and our economy.  While acknowledging that fact was an important step in this community, the real challenge is determining how to actually incorporate the environment in water allocation decision-making.

The Phase II report produced from that study identified 5 broad goals and 13 recommendations related to "Respect for the Environment" that talked about identifying opportunities and water supplies for environmental restoration and preserving the few existing riparian environments remaining in this area.  But in terms of actually identifying those opportunities it talked about things like seeking to incorporate multiple benefits into future infrastructure projects and maintaining the "effluent dependent" riparian habitat that has been created in the Santa Cruz River as a historical accident of our need to dispose of treated wastewater.  Not exactly earth-shaking stuff.  As for identifying water supplies for the environment the main recommendation was to finalize a 2000 inter-governmental agreement (fairly large pdf) between the city and county allocating up to 10,000 acre-feet per year of the effluent coming from county-owned treatment plants for future environmental restoration projects.  Don't get me wrong - it was very important for that to be completed - but it hardly constitutes a long-term strategy to "put the environment at the table where water is distributed," as stated in the report.  That's putting the environment at the kids table, where the grown-ups tell it what it can have and when.

And this water is not entirely safe until they start actually allocating it.  The local development community has been trying to derail the plan to implement the Conservation Effluent Pool (CEP), as the 10,000 acre feet is known locally.  But that is the subject of a separate post.

So how does the environment get a seat at the grown-up table in future water allocation decisions?  One idea is to have the environment as a full economic participant in water allocation.  That means obtaining water rights for the environment by outright purchase (of water or land with water rights attached), various types of lease agreements, or conservation easements.  Some of these ideas are described in a recent article (links to pdf) in the Arizona Journal of Environmental Law and Policy, by Aaron Citron (a fellow Arizona law grad).  But there are a lot of limitations to this type of solution because of various quirks of water law and land use law in Arizona. 

Those limitations are described very well in a forthcoming report from Ecosystem Economics that I hope to be able to share when it's finalized.  Their report resulted from workshops they conducted with a variety of Arizona water policy experts last summer (I was honored to be included in the second workshop) and will hopefully culminate in a number of policy recommendations the state could implement to foster greater market activity in water rights in the state that could benefit the environment if water from low-valued uses could be shifted to environmental uses via market transactions.  The biggest challenges (in my opinion, but also echoed in the report) are the failure of Arizona water law to fully recognize the connection between surface water and groundwater and the highly uncertain nature of many water rights in the state.

The first challenge means that even if surface water rights can be secured for environmental purposes they cannot always be protected from depletion resulting from groundwater pumping (i.e. San Pedro River).  The second, results from the lack of adjudication (another pdf) of most surface water rights in the state, which means that determining the value, the quantity, and the seniority of many of those rights is challenging - leading to high transaction costs that hinder the creation of robust markets.

What this all means, is that until the right conditions can be created for markets to reallocate water in the state, the best way to allocate water for environmental purposes may be by government edict (or enforcement of federal environmental laws - this could be another series of posts in its own right).  It's not entirely hopeless, the particular circumstances in some parts of the state do lend themselves to economic solutions to environmental problems with water allocation.  But those solutions most often require outright purchase or partial purchase of land with associated water rights - not the most efficient solution.  In the meantime, we can enjoy those rivers in the state where downstream senior rights holders (very politically powerful senior rights holders) will ensure that the rivers supplying those rights continue to flow.  But in other areas we have to rely on people flushing their toilets to provide the water necessary for rivers to flow.  How's that for imagery.