by:
Out West, it's said that water flows uphill
toward money. That's more than bluster along the Colorado River, where rich,
thirsty cities in Nevada and perhaps California are poised to use cash, Congress
and even Colorado's own quirky laws to secure more water.
As growth takes off across the seven states covered in the Colorado River Compact
that spells out water allocations, urban areas - especially Las Vegas - are
investigating strategies that could make the desert bloom at other states'
expense.
One such strategy could take advantage of the state of Colorado's longtime
definition of water as "private property" that can be bought or sold. Water law
is more restrictive in neighboring states, so Colorado would be the most
vulnerable if Nevada maneuvered aggressively to buy up water from individual
owners.
At least a half-dozen would-be water sellers in Colorado envision healthy
profits, and they would prefer a hands-off approach by the state government.
Colorado Gov. Roy Romer has other ideas.
"I don't have much control over Nevada. (But) I have been trying to send a
message to the lower basin: "You're not gonna do this while I'm governor,"' Romer
said.
"If there were an interstate market on the river, Las Vegas could simply come
into Colorado and buy up the Grand Valley and then transfer those agricultural
water rights down to Las Vegas," said Jim Lochhead, executive director of the
Colorado Department of Natural Resources.
Meantime, several Colorado-based entities, such as oil companies, are interested
in selling or leasing their water rights on the river or its tributaries. The
Colorado Department of Natural Resources is fighting those attempts.
Nevada is pushing the limits of its allocation of 300,000 acre-feet a year. The
amount was established when the river pact was signed 72 years ago. California
has exceeded its limits for years but has started programs - at Romer's
insistence - to eventually halt that.
Colorado's definition of water rights as private property is a concept so popular
it may be politically impossible to change. But, if a bidding war erupted, that
would leave Colorado in a more precarious position than neighboring water-rich
states.
In Wyoming, water is a state-owned resource available to users by permit. Utah
defines water as a salable property right, but it bars out-of-state sales.
Essentially, if one holder of Colorado water rights sells them privately to a
buyer in another state, the interstate commerce clause of the U.S. Constitution
could kick in. That could require equal treatment of other sellers and create an
open market for water up and down the river system. Protections built into the
compact for Colorado cities and farms could be destroyed.
"The state," Lochhead said, "would lose control of its water resources."
One proposal - the Roan Creek project - has been the focus of most recent
concern. Nevada water officials last week toured the site.
The Roan Creek plan calls for a dam to be built on the Colorado River near De
Beque, between Glenwood Springs and Grand Junction. The dam would be financed by
money out of Nevada. Then that state would lease up to 175,000 acre-feet of
water, using rights now held by Chevron Oil and Getty Oil, companies that
originally bought the rights to produce oil from shale.
One acre-foot is about 326,000 gallons, or enough to meet the needs of a family
of four for a year.
"Roan Creek is not a final solution for Nevada, but it certainly can be part of
the solution. And we're willing to investigate that," said Janet Rogers,
chairwoman of the Colorado River Commission of Nevada.
Roan Creek is not the only private-sale offer on the table. A total of 1.7
million acre-feet of water could be sold by Colorado holders to Nevada. These
include:
Without such individual sales, states could go to Congress in an attempt to
reopen the compact. Many observers say a breakup of the compact by Congress isn't
likely, even though the water-needy lower basin states have 66 votes in Congress,
compared with 21 votes in the upper-basin states.
Like most states involved, California has internal squabbles over water that
could keep it from assembling a bloc of votes in Congress.
None of that eases anxiety.
"Each state, while generally supportive of other states developing their
apportionment, is fairly suspicious of activities in other states," says Sen. Ben
Nighthorse Campbell, D-Colo.
Romer, Lochhead and other upper-basin officials have urged that the lower-basin
states work out water trades among themselves to help cover droughts and handle
growth. Such efforts have begun informally in California and Arizona, though it
will take years for them to reach a scale that might make the lower basin
self-sufficient.
Under new proposed regulations from the U.S. Bureau of Reclamation, which
oversees the lower-basin through dam management, enough water should be available
for 10 to 20 years, says Elizabeth Rieke, assistant interior secretary.
Beyond that, well-planned shifts from farming to city use may keep lower-basin
cities alive over the next century, she said.
"The needs of urban users over the next 100 years are less than 20 percent of the
current deliveries to agriculture in the lower basin. So it should be possible to
meet the urban needs from existing uses," Rieke said.
But Nevada is so close to using its full allotment that its officials are
demanding a "flexible" reading of the compact and court opinions interpreting it.
"If the states are unable to accommodate each other, the Congress will have to
become involved," said U.S. Sen. Harry Reid, D-Nevada.
As the West fills up, federal officials say they can pinpoint shifts that have
changed water needs in the seven decades since the compact was signed.
"Agriculture, mining and timber are no longer the dominant economic enterprises,"
said reclamation commissioner Dan Beard, who oversees southwestern water projects
for the Interior Department.
Fears that the upper-basin allotment will be drained by changes are unfounded, he
said.
"Interstate transfers are only going to take place when the states agree that is
what's going to take place," Beard said.
But with urban water demand surging, "The reality is, the world has changed."
Others believe what ought to be changing is growth policies.
"At the end of World War II, the West had about 16 million people; right now
we're closing in on 60 million," says Charles Wilkinson, a University of Colorado
law professor who specializes in regional issues. "If you read the letters to the
editor in papers all across the West, in Reno or Boise or Jackson or Denver or
Phoenix, you see a level of attention to growth that we've never had before.
"We're going to have to start reining in growth. Because if we don't, we're not
going to have a West anymore; we're going to lose the distinctive qualities that
brought people here to begin with."
COLORADO RIVER COMPACT FACTS
Ten Tribes May Affect Water Flow
Ten American Indian tribes that hold rights along the Colorado River or its
tributaries also could affect how water is apportioned.
They could open up a market for water sales from one state to another, and some
tribes have expressed interest in doing just that.
Colorado's two tribes, the Southern Utes and the Ute Mountain Utes, agreed in
1988 to be treated like other Colorado water users in a law approved by Congress.
It states that those tribes can't sell their water unless other private users in
Colorado - such as owners of the Roan Creek rights in western Colorado - start up
a market first.
Leonard Burch, chairman of the Southern Utes, says that's not a fair restriction,
especially with delays in construction of the Animas-LaPlata water project. The
$653 million project is supposed to supply long-promised water to Colorado
reservations in the Four Corners area.
Animas-LaPlata has been approved by Congress, but is hung up over environmental
concerns. It also may be scaled back. An Interior Department inspector general's
report in July called it "economically infeasible" as originally planned. The
report suggested cash payments to the tribes instead of the project being built
at full scale.
If Animas-LaPlata isn't built soon, Burch said, the tribes may want to reassert
their right to sell water rights to bring in some money to finance economic
development.
"Our patience is wearing pretty thin now," he said. "We thought we complied with
all the necessary requirements" for environmental issues in Animas-LaPlata. "Each
time we finish with that, there's another roadblock."
If the Southern Utes did sell water rights, Burch said, the money would go toward
"developing our natural resources on the land we own."
JENNIFER GAVIN
ADRIEL BETTELHEIM
The Denver Post, 18 September 1994, p. A-1.
Romer and others are worried that sales could upset the complex chessboard of
water law. Ultimately, this could affect water rights that now are keeping taps
flowing on Colorado's Front Range.
In negotiations with the other states, Lochhead's department has been quietly
reasserting Colorado's rights to 3.8 million acre-feet of water per year from the
Colorado River system. As one of four "upper basin" states in the compact,
Colorado has yet to use all the water allocated to it under the 1922 river
treaty. That has allowed California and other "lower basin" states to keep taps
and irrigation sprinklers flowing.