Meeting the Financial Challenges of Improved Water Management in the West: Session Two

Water Markets and Private Investments in Western Agriculture:  A Road Forward?

Thursday, September 24th, 2020

Using market forces to shift the distribution and use of western water resources is a controversial topic. Some individuals fear that private investments in western agriculture will doom the sector, as water will inevitably flow to higher-paying uses and users in urban settings. To others, these investments allow agriculture to become more efficient and resilient, and when done correctly, can minimize any pain associated with large-scale water reallocations.

James Eklund
Founder and CEO, Eklund Hanlon LLC

Peter Fleming
General Counsel, Colorado River Water Conservation District

Event Video

Colorado River District Supply Planning Studies

CLE Info

Many Roads to the Public Interest: Utility Scandals Signal a Need to Reevaluate Energy Regulation

By Colorado Law Student Conor J. May

Public utilities occupy a unique position in the American economy. This unique position is currently the subject of fresh scrutiny, and various reformers propose radically divergent visions for the future of the electricity sector. This renewed scrutiny comes in the wake of that age-old herald of political upheaval: scandal.

High-profile scandals have rocked many electric power utilities in recent years. In 2017, the Puerto Rican Electric Power Authority (PREPA), which has a long history of problematic behavior, found itself embroiled in numerous controversies in the aftermath of the devastation wreaked by Hurricane Maria. In 2019 Pacific Gas & Electric (PG&E) filed for bankruptcy amid a storm of criticism about the mismanagement that caused deadly wildfires Paradise, California. Around the same time, a trade association supported by some of nation’s largest power companies was investigated by the Congress for using customers’ utility bills to fund EPA lobbying activity. The run of bad press for utilities has picked up in 2020, with federal investigations into South Carolina’s SCANA Corporation and Dominion Energy, Ohio’s FirstEnergy, and Illinois’s Commonwealth Edison (ComEd). These investigations involve various charges of bribery, racketeering, and misuse of public funds. Such scandals are certainly not unique to the utility sector. Any line of commerce as old and ubiquitous as electricity has no doubt faced its share of accusations. But after the wave of fresh fiascos, old critiques are resurfacing. These critiques question whether the unique niche utilities occupy, somewhere between the free market and public administration, isn’t a breeding ground for cronyism and regulatory capture.

The legal concept of public utilities in the United States is rooted in 19th century jurisprudence. Chief Justice Waite perhaps described it best: “Property does become clothed in the public interest when used in a manner to make it of public consequence, and affect the community at large.” Quoting Lord Hale, he noted that “when private property is affected with the public interest, it ceases to be juris privati only.” When a private company provides an essential piece of public infrastructure (such as water, power, telecommunications, or gas) the company can be subject to additional layers of oversight and regulation.

Public utility thinking also grows out of the economics of natural monopolies. As Richard Posner describes, “under competition, we need little worry about a firm’s incentives to minimize its costs, and to innovate.” But the classic utilities – water, power, telecommunications – have traditionally been thought of incompatible with free-market competition. Natural monopolies tend to arise when a good or service can be supplied at lowest cost by one company, rather than by multiple competitors. In the utility sectors, the initial cost of infrastructure was often thought to render local competition inefficient. One need only look at pictures of 19th-century cities to realize the problems that arise from numerous competing power grids.

Hence the unique position of the regulated utility: a private company whose rates and service are overseen by government regulators. In lieu of the competitive pressures of the market, regulators step in to make sure the public gets reasonable service at a low price. However, this model comes with its own problems. For example, what happens if, either by legal or clandestine means, the regulated company wields undue influence over the regulators? As the proponents of public choice theory are quick to point out, when regulation delivers diffuse benefits to the public but has major consequences for one group, that group is likely to expend disproportionate effort to influence over the regulatory process. This brings us full circle to the recent scandals, which involved for-profit companies, supposedly “clothed in the public interest,” mismanaging public funds or using bribery to increase profits. In the case SCANA and Dominion, the utilities “deceived investors, regulators, and the public over several years about the status of a $10 billion.” And illicit behavior is only one side of the coin. Legal scholars have documented many perfectly legal methods that utilities have to influence those overseeing them. Wherefore then serveth the public interest?

Proposals for how to fix the system abound. But while we do not lack for suggestions, many of these suggestions pull in opposite directions.

Some advocates argue for competition in lieu of regulation. The electric lines overhead may be a natural monopoly, but generating the power in those lines is increasingly ripe for competition. Competitive restructuring first became popular late in the 20th century, but has resurfaced in recent years. Solar, wind, and other distributed forms of generation make it less costly to break into the power biz. “Smart” technologies and improved control systems give us greater ability to manage and monitor power usage. In light of these technological changes, many energy reform advocates see decentralization and competition as the best cure for what ails the electric industry.

Legal scholar William Boyd wonders if we should be so quick to abandon the publicly regulated utility. He points out that the model enables planning, coordination, and funding for innovation and experimentation. These characteristics will be critical for achieving a low-carbon future. The free market may be unable to deliver the kind of rapid, systemic change that we need. Boyd is not starry-eyed about the problems afflicting the regulated utility sector, but argues that the current model is worth repairing. In his eyes, the “key task is to recover the public in public utility” and to revitalize our conception of public interest regulation.

Others, meanwhile, look in the opposite direction from market competition, and ask if an publicly-owned electric utility might be better situated to serve the public interest. There are many examples around the country of successful government-run water, electric, and even telecom utilities. In the wake of PG&E’s wildfire scandal and ensuing bankruptcy, both the California and the city of San Francisco have both considered taking over all or part of the company as a wholly public enterprise. Motivated by concerns about climate change, Boulder, Colorado has long been engaged in an effort to replace its service from a for-profit Xcel subsidiary with a municipal power authority. Proponents of public power point argue that it provides more accountable local control, keeps more money local, and gives citizens a say over whether to use greener power sources.

Still others suggest a middle way. Community choice aggregation, which incorporates aspects of both local control and customer choice, has recently become popular in various states. This model leaves the current utility structure in place but allows communities to select who generates their power. Meanwhile, a coalition of California mayors expressed interest in turning PG&E into a customer-owned private cooperative. Such distribution cooperatives have a long history of reliably serving underserved constituencies in the rural parts of the U.S.

What are we to do with this broad array of choices? Fortunately, most utility regulation takes place at the state level, so the future of power provision is an ideal test case for states as the “laboratories of democracy.” Technical, financial, and environmental factors vary from region to region, so a one-size-fits all approach is likely unworkable. Instead, different states and cities can and should try different models in an effort to find the public interest anew. Because, while reformers may disagree about the best path forward, the recent scandals clearly highlight a major weakness in the status quo. If a regulated monopoly cannot be safeguarded against corruption and capture, it will be subject to both the bureaucratic inefficiency ascribed to government regulation and the profit-seeking whims of the private sector. In short, such a system will provide the worst of both worlds.

Conor J. May is a rising 3L at Colorado Law

We Could “Green” Our Economic Comeback, But Will We?

By Colorado Law Student Kevin Bernstein

Air pollution first fell in China as the country locked down in response to the novel coronavirus, COVID-19.  As the pandemic spread, shutdowns spread across the globe, and air quality improved dramatically.  These improvements were largely attributable to reductions in passenger air travel, reductions in industry operations, and far fewer commuters on the road.  Everyone is anxious to get our economy back on track and return to a sense of normalcy. But normalcy means a rapid increase in greenhouse gas emissions.  The massive disruption of the pandemic has opened a temporary window – providing a view to a cleaner world and the opportunity to ask ourselves, can we create a new normal? 

The death toll of the coronavirus is tragic, even more so because many deaths were avoidable. But according to the World Health Organization, four million people die prematurely from ambient air pollution every single year.  Knowing that significant amounts of pollutants can be avoided through changes in human behavior and existing technologies, aren’t those four million premature deaths a year equally tragic?

There are important efficiency lessons to be learned from the pandemic that could help shape a sustainable future.  While not all office workers enjoy or can work from home, many employees and employers are seeing the benefits.  Transitioning a portion of the office workforce to even a partial work-from-home workforce would have significant effects.  In addition to a reduced number of commuters, employers could reduce their square footage of office space – saving money and decreasing their carbon footprint.   Consolidating office space leaves more room for additional businesses and a diversified economy.  Reduced commuter traffic in metropolitan areas means cleaner air for urban dwellers and the need for fewer heat-trapping parking lots which could be repurposed for public spaces.

Business travel accounts for about 16% of all American long-distance travel (National Household Travel Survey 2002).  Modern video conferencing has allowed businesses to continue operations during the shutdowns, drastically reducing related travel.  Similarly, remote learning across the entire education spectrum has highlighted the necessity of stable high-speed internet connections.   Accordingly, one of the ways to capitalize on these socio-economic trends and strengthen the economy is to prioritize the development of reliable internet access across the entire country much like we brought electricity to America through the Rural Electric Administration.  Even with reliable internet access, remote work/learning can be frustrating, but without a stable connection, it can quickly become impossible.  Often hitting rural or lower-income families the hardest.  Many schools and businesses will want to resume face to face meetings, but the pandemic has introduced virtual options to many who would have previously dismissed the idea out of hand.

But as air travel picks back up, now is a time to consider committing to buying carbon offsets.  A minimal investment (e.g. ~$8.oo for a round trip flight from Denver to San Francisco) can help to internalize the cost to the environment of air travel (https://thegoodtraveler.org).  Certain industries, like air travel, are harder to decarbonize.  Therefore alternative, although imperfect, solutions allow individuals and corporations to achieve net-zero emissions.  The Good Traveler is just one of many non-profits that offer carbon offsets, but they do so in an effective and easy to use way.

These are just a few examples of permanent behavioral changes that allow our economy to recover while improving public health and quality of life.

America’s energy mix continues to transform rapidly.  Wind and solar power are becoming dominant sources of electricity.  While renewable industries have suffered significant job losses due to the pandemic, solar and wind electricity generation in the U.S. outpaced coal electricity generation for multiple consecutive days in late April 2020.  Abroad, the UK and Portugal have reported multiple weeks of zero coal-fired electricity generation (https://www.calvert.com/impact.php?post=as-utilities-enable-work-from-home-economy-renewable-energy-provides-reliable-power-&sku=35722).  While these achievements are partially attributable to reduced energy demand from COVID-19 shutdowns, they demonstrate how much renewable energy has become integral to our grid and the possibility of a rapid transition from fossil fuels. 

As intermittent sources of power such as solar and wind make up more of our energy mix, improved storage capabilities are paramount.  And like most technology, as storage capacity increases, the cost will decrease – leading to a more robust electrical grid.   And because battery storage projects have a relatively small physical footprint, they tend to be relatively simple to gain permit approval for development. 

Distributed solar, battery storage, and microgrids provide the resilience needed for communities to rebound after natural disasters, which we know are becoming more frequent and severe due to climate change.  While we have not witnessed significant electrical disruptions due to COVID-19, Hurricane Maria in Puerto Rico shows communities are more resilient when they can generate their power locally.  Homes with rooftop solar power were able to begin reconstruction earlier because many of their other imminent needs were already taken care of and they didn’t have to wait for transmission lines to be rebuilt.

The benefits of choosing renewable energy are dramatic for grid stability and economics.  These benefits compound as they enhance air quality by reducing the consumption of fossil fuels.  Renewable energy and improved batteries pave the way for increased electric car ownership – providing a cheap reliable source of fuel for vehicles while providing zero-emission transportation choices for those who cannot or choose to not work remotely.

America is in a historic moment of awareness.  We face a climate crisis, lost ground on environmental and public health protections, a massive federal deficit, significant economic hardship, systemic social injustice, and hardened political divisions that threaten our democracy.  The demands we see on the streets to ensure equality under the law are inspiring disruptions to the status quo. 

So the question remains  – we know we can green our economic comeback, but will we?

Kevin Bernstein is a rising 2L at Colorado Law


Global Water Matters Podcast Episode 2: Insights from the Colorado River

University of New South Wales-Sydney Global Water Institute

The second episode of the GWI Global Water Matters podcast features Anne Castle, member of the Water Policy Group and Senior Fellow at the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment at the University of Colorado. In conversation with producer Gretchen Miller, Anne discusses the management and future of the over-allocated Colorado River Basin, its many competing interests, her personal experiences with the river and what it was like to meet Barack Obama during her time as Assistant Secretary for Water and Science at the U.S Department of Interior.

Anne Castle is a senior fellow at the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment at the University of Colorado, focusing on western water policy issues.  From 2009 to 2014, she was Assistant Secretary for Water and Science at the U.S. Department of the Interior where she oversaw water and science policy for the Department and had responsibility for the U.S. Bureau of Reclamation and the U.S. Geological Survey.  While at Interior, Castle spearheaded the Department’s WaterSMART program, which provides federal leadership on the path toward sustainable water supplies, and was the driving force behind the 2010 federal MOU addressing sustainable hydropower.  Castle also provided hands-on leadership on Colorado River issues and was the Chair of the Glen Canyon Dam Adaptive Management Work Group and a champion of Minute 319 between the US and Mexico.  Castle is a recovering lawyer, having practiced water law for 28 years with the Rocky Mountain law firm of Holland & Hart.

Global Water Matters Podcast Episode 2: Insights from the Colorado River

A Green New Deal for Public Lands?

By Colorado Law Student Noah Stanton

We are facing a national public health crisis that should be pulling the nation together. Yet the effects of and reactions to COVID-19 track the fault lines of class, race, region, and cultural affiliation that predate this crisis and will, absent concerted national and collective effort, be exacerbated by it. These same themes—how can we create shared spaces and common futures from unequal contexts?—dominated our recent Martz Symposium. We share this recap of the conference to provide inspiration and hope in these challenging times.

Land was a central theme at this year’s symposium. That may seem natural given the program’s theme, “A Green New Deal for the Public Lands?” But oftentimes, in legal discussions of public lands, the lands themselves get lost in the thicket of regulatory overlays. Here, land—and its meaning to different communities—took centerstage, as speakers throughout the day investigated and reconceptualized the lands that our federal government manages. Academics, community organizers, and advocates presented their visionary ideas of the value contained within our public lands, as well as the ways in which we can protect these lands.

The day got started with a powerful critique from Alan Spears of the National Park Conservation Association. Spears dissected an idea often embraced at public-lands conferences: Wallace Stegner’s famous assertion that our national parks are “America’s best idea.” To Spears, touting national parks as our best idea alienates people who find other ideas far more impactful—important ideas like abolition, “one person, one vote,” or de-segregation. So while Stegner’s slogan might serve as a rallying cry for white environmentalists, Spears suggests that it fails to resonate with communities of color.  In this and other ways, the messaging about national parks creates “a land apart.” Families work hard and create homes throughout America, but our messaging suggests that “history, culture, and narrative are things that happen elsewhere.”  

Spears’ critique began to draw a throughline that would connect many of the day’s talks: Land is so much more than the geologic features or waterways that may appear on it; land truly derives value through shared experiences, culture, traditions, and legacies. For Spears, this meant we should not consecrate national parks as lands inherently more valuable than others.

Oriana Sandoval’s presentation picked up on this theme. Sandoval is the CEO of the Center for Civic Policy, an organization that works to bring the voices of New Mexicans into policy decisions in that state. Sandoval spoke of barriers of access to public lands for her mostly Latinx and under-resourced constituency. She explained that these barriers do more than exclude folks from beautiful lands. They prevent people from connecting with a culture and heritage of which those lands are an integral part.

Her bold vision is to reconnect New Mexicans with their public lands and to use those lands as an integral part of the state’s transition away from its current oil-and-gas economy. Sandoval sees outdoor recreation as a key economic driver for a post-extraction New Mexico, and she has worked to ensure Latinx youth help form this economy. As part of this work, her organization helped secure microgrants to provide kids with outdoor equipment and better access to their public lands, all in the hopes that it leads to a more inclusive recreation economy in the future.

Later, Professor Rebecca Tsosie’s inspiring talk expanded on the theme even further. To Tsosie, lands are “one and the same” with the people who inhabit them. Land contains vast wealths of knowledge that people perceive and translate, and this knowledge weaves itself into the cultures and traditions that make humans who we are. Tsosie posited that if we are to create an ethic of sustainability among our public lands, we need to develop an idea that ties the earth to its inhabitants.  This was one evil of federal Indian policy: it divested peoples of their lands and therefore separated them from this knowledge and culture. She also argued that federal policies continue to miss the mark. For instance, federal wilderness protection—the highest level of protection that we have for public lands—applies only to lands that are completely devoid of humans.

All of these talks presented conceptions of land that transcend geology and topology. Several speakers also generated ideas on ways for the law to recognize the true value of our lands. For instance, Professor Tsosie hailed the Bears Ears designation—and its efforts to establish tribal co-management of the monument—as a move towards acknowledging the presence of people on public lands and recognizing their use of the land.  Later in the day, Colorado Law’s own Professor Sarah Krakoff critiqued the notion that public lands are some distant medium for us to act on and project upon. She called for reconceptualizing these lands as our collective commons. 

Additionally, Professor Jessica Shoemaker of the University of Nebraska delivered a defense, of sorts, of property law as an adaptive tool that can respond to this changing notion of our lands.  She recounted past development of “flexible legal categories” of property—ones that go beyond the “fee simple absolute”—and touted the ability of property law to accommodate new and progressive uses of land. Current federal management of public lands (as well as Indian lands) shows a lack of flexibility, perhaps springing from a fear among land managers of relinquishing any control. But new, adaptive designations of property are possible and have developed before.

The ideas presented at this year’s symposium were fresh and innovative. Voices usually absent from these spaces were amplified and gave insight into the connection between our lands and people, tradition, culture, and more. The 2020 Martz Symposium provided an invigorating opportunity to think outside the “box” of our traditional environmental frameworks and turn a more critical eye to our land-management practices.

Noah Stanton is a rising 3L at Colorado Law.

Event videos available below:

Now Accepting Applications: Getches-Wilkinson Water Fellows

We are pleased to announce we have launched a national search for the inaugural pair of Getches-Wilkinson Water Fellows.

The Getches-Wilkinson Fellows Program is a first-of-its-kind initiative designed to train the next generation of leaders in natural resources fields. The intensive two-year program will immerse the two Fellows in the real world challenges of water law and policy. The Fellows will address critical issues affecting western watersheds, conduct reform-oriented research on pressing issues, and interact with public and private sector leaders to inform policymaking.  The Fellows will be actively engaged in water law reform in the public interest and will hone their leadership, communication, advocacy, and research skills. The overarching objective is to create a matchless educational and mentoring experience that will leapfrog their careers and prepare the Fellows to become leaders in their chosen practice areas.

“Fellows will get training from the most experienced people in the field, and then bring diverse voices and creative energy to the region’s most pressing natural resource challenges,” said Sarah Krakoff, Moses Lasky Professor of Law.

The Colorado River provides water and electricity for people throughout the basin states, including residents of Denver, Salt Lake City, Los Angeles, Phoenix, Tucson, Las Vegas, and Albuquerque. It irrigates over 3 million acres of crops and pasture; provides abundant recreational opportunities for rafting, fishing, boating, and hiking; and serves as habitat for a multitude of fish and wildlife species, including several endangered native fish. Increasingly, demand for this important natural resource is outstripping supply.

“In Colorado and beyond there is a rising need for thoughtful policy initiatives at all levels of government to manage water usage throughout the Colorado River Basin,” Krakoff said. “The GWC sees an opportunity to help address this unmet need, and similar ones throughout western watersheds, while training the next generation of outstanding and diverse leaders in water law.”

The Getches-Wilkinson Fellows program was initiated by a generous donation from David Bonderman – lawyer, business executive, and significant supporter of conservation initiatives. The matching funds came from an anonymous GWC supporter and the Water Funder Initiative – a collaborative effort to identify and activate promising water solutions through strategic philanthropic investments in the United States, starting in the West.

We are seeking exceptional lawyers early in their careers.  The job description, requirements and application instructions are available here: Getches-Wilkinson Water Fellows

For more information on the GWC Fellows Program contact Shaun LaBarre, GWC Deputy Director at shaun.labarre@colorado.edu or 303.492.1286.

The Climate and Diversity Crisis: Moving Toward a Global Awakening?

Please join us for the Boulder Faculty Climate Science and Education Committee, Spring 2020 Climate Lecture with Dr. Cassandra Brooks.

Tuesday, April 21st 5:00-6:30 p.m. (Webinar)  

University of Colorado Boulder
Boulder Faculty Climate Science and Education Committee
Spring 2020 Climate Lecture

The Climate and Biodiversity Crisis: Moving Toward a Global Awakening?
Dr. Cassandra Brooks
Environmental Studies
University of Colorado Boulder

Tuesday, April 21st
5:00-6:30
 
To participate remotely using ZOOM: Interested attendees should RSVP
to Jennifer.katzung@colorado.edu to receive the correct link and password

 
More information and event sponsors 

Calling all conservation innovators and risk-takers

On behalf of the Salazar Center for North American Conservation, CSU Author: Courtney Massey

In 2020, the planet is facing existential threats from human-induced climate change, species extinction, and rapid population growth – all of which contribute to increasing pressure on and fragmentation of rural and urban landscapes. At the same time, conservation efforts across North America that work to address these challenges are complicated and often inhibited by cultural, geographic, and political divides. In response, the Salazar Center for North American Conservation, based out of Colorado State University in Fort Collins, has created the Connectivity Challenge to support innovation in conservation and cross-boundary initiatives.

The Salazar Center is uniquely positioned to support and mobilize efforts working toward a healthier, more resilient future—and the Connectivity Challenge prize is just one of the ways it’s doing just that. With dozens of partners across research, practice, and policy – and the continued engagement and leadership of its founder, former Secretary Ken Salazar – the Center is poised to make big impacts in conservation.

Later this year, the Connectivity Challenge will award $100,000 to an interdisciplinary team working on an innovative approach to landscape conservation and connectivity in North America. The incentive prize encourages new, inventive approaches to solving big conservation challenges in North America and will support a team whose work removes barriers, catalyzes change, builds capacity, or scales impact. The Center especially encourages proposals that feature non-traditional applicants, ideas for projects that have legislative impacts, and/or teams that include policy makers. The application process for the prize has been designed to provide tangible benefits to all applicants (not just the winning team) by building a community of interest, providing expert feedback on all applications, and inviting finalists to participate in a pitch event at the Center’s annual symposium in Denver, CO in September 2020 that will provide the opportunity to present to peers and funding organizations.

Applications are open now for the Connectivity Challenge. The first step in the application process is for interested teams to register online by 5 p.m. MST March 19, 2020. For more information, and to register, visit ConnectivityChallenge.org. Additional questions can be directed to Dominique Gómez, Salazar Center Program Director, at dominique.gomez@colostate.edu.

About the Author:

Courtney Massey is the Office & Administration Intern at the Salazar Center for North American Conservation and splits her time between the Center and her master’s program in Conservation Leadership at Colorado State University. The Salazar Center supports and advances the health and connectivity of natural systems and landscapes of the U.S., Canada, and Mexico — whether they be urban or rural; working or wildlands; public or private. Its efforts are rooted in the recognition that healthy natural systems bolster climate adaptation and resilience, protect biodiversity, and sustain long-term human health. Its team envisions a future where healthy, connected landscapes in North America promote a rich diversity of life; play a critical role in responding to climate change; ensure the production of clean air, water, and economic benefits for human communities; and are conserved and protected across political borders throughout the continent.

Getches-Wilkinson Center to Launch Fellows Program With Focus on Water in the West

The Getches-Wilkinson Center for Natural Resources, Energy, and Environment (GWC) at the University of Colorado Law School has raised $840,000 to launch the GWC Fellows Program, a first-of-its-kind initiative that will train the next generation of natural resource leaders.

The program will formally begin in spring 2020 with the hiring of two full-time fellows, who will be selected through a competitive national search in early 2020. With a focus on the water and the Colorado River in particular, the first two fellows will address critical issues affecting western watersheds, conduct reform-oriented research on pressing issues in the field, and interact with public and private sector leaders to inform policymaking.

“Fellows will get training from the most experienced people in the field, and then bring diverse voices and creative energy to the region’s most pressing natural resource challenges,” said Sarah Krakoff, Moses Lasky Professor of Law and interim executive director of the Getches-Wilkinson Center.

The Colorado River provides water and electricity for people throughout the region, including residents of Denver, Salt Lake City, Los Angeles, Phoenix, Tucson, Las Vegas, and Albuquerque. It also irrigates over 3 million acres of crops and pasture; provides abundant recreational opportunities for rafting, fishing, boating, and hiking; and serves as habitat for a multitude of fish and wildlife species, including several endangered native fish. Increasingly, demand is outstripping supply for this important natural resource.

“In Colorado and beyond there is a rising need for thoughtful policy initiatives at all levels of government to manage water usage throughout the Colorado River Basin,” Krakoff said. “The GWC sees an opportunity to help address this unmet need, and similar ones throughout western watersheds, while training the next generation of outstanding and diverse leaders in water law.”

The GWC Fellows Program is supported by David Bonderman, a lawyer, businessman, and significant supporter of conservation initiatives, who contributed a matching grant of $420,000. Additional financial support came from an anonymous donor and the Water Funder Initiative, a collaborative effort to identify and activate promising water solutions through strategic philanthropic investments in the United States, starting in the West.

For more information on the new GWC Fellows Program, contact Shaun LaBarre at shaun.labarre@colorado.edu or 303.492.1286.

The Risk of Curtailment under the Colorado River Compact

New Study of Colorado River Cutback Risks by GWC Senior Fellow, Anne Castle and University of New Mexico Water Resources Program Director, John Fleck

With a credible risk that declines in the Colorado River’s flow could force water curtailments in coming decades in Colorado and the rest of the Upper Colorado River Basin, communities need to think about what kind of insurance is needed, a new report argues.

A repeat of drought conditions seen in the first decade of the 20th century could nearly empty the Upper Basin’s primary storage reservoirs. “While the risk of that happening remains low in the short-term, the threat increases substantially over time, and regardless of the time frame, the consequences could be dire,” said Anne Castle, the study’s lead author – a loss of economic activity, jobs, income, and community benefits in cities and rural communities that depend on the water. “The chances that my house will burn down are low, but the result would be disastrous. So I buy insurance,” said Castle, a senior fellow at the Getches-Wilkinson Center for Natural Resources, Energy and the Environment at the University of Colorado Law School. “The question is – What kind of insurance against the risk of Colorado River water curtailment should water users buy?”

Castle will be discussing the study at the Upper Colorado River Basin Water Forum Nov. 13 at Colorado Mesa University in Grand Junction.

The report, written with University of New Mexico Water Resources Program Director John Fleck, connects the latest hydrology and climate science with an analysis of the legal framework governing the Colorado River’s allocation.

Drawing on water supply analyses by the U.S. Bureau of Reclamation and independent experts, the study finds that the risks are significant:

• A recent Bureau of Reclamation analysis found that a repeat of the conditions of the drought of the early 2000s could, in fewer than five years, drain Lake Powell to levels at which it would be unable to generate electricity.

• Water supply simulations commissioned by a group of western Colorado water agencies found a greater than one in three chance that flows could drop so far in the next decade that the ability of the Upper Colorado River Basin states – Colorado, Utah, Wyoming, and New Mexico – to meet their legal obligations to deliver Colorado River to downstream users in Nevada, Arizona,California, and Mexico would be in grave jeopardy.

Those hydrologic realities collide with legal institutions designed nearly a century ago that allocated far more water than the river has, without clear rules for handling sustained low flows.

The result, the report found, is significant risk of shortfall combined with uncertainty about whose water supplies would be cut, and by how much.

This suggests a need to prepare now, so communities are not blindsided, the report’s authors write.

Options include:

• Negotiating legal agreements among the Colorado River Basin states to clarify rules for sharing shortages

• Setting up voluntary, temporary, compensated water conservation programs now to bank conserved water as a hedge against risk

• Waiting – not taking proactive action, but rather letting the chips fall where they may, an option the authors warn is high stakes poker

The authors caution against litigation against the Lower Basin states of Arizona, California, and Nevada as a path to settling the issues. Such litigation could drag on for many years, creating uncertainty and hindering the types of collaborative agreements that have kept the River sustainable so far, they argue.

Full paper: The Risk of Curtailment under the Colorado River Compact

Risk of Curtailment Summary