Category: Water Law

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Implementation of Water Reserves in Bolivia Using its Existing Water Law Framework

By Rising Colorado Law 2L Colin Hull

Colorado Law Student, Colin Hull worked with the World Wildlife Fund’s Water Reserves Initiative as part of the GWC’s David Harrison Innovations in Water and Energy Law & Policy Fellowship. As part of this Fellowship, Colin produced the following report exploring water reserves in South America.

The urgency of the climate crisis and Bolivia’s efforts to rapidly develop threatens its watersheds and natural flowing rivers.  The Water Reserves Initiative, which allocates water to the environment, is essential to ensure the sustainability of water as a resource and protect its ecological benefits. A 2016 World Wildlife Fund (WWF) consultancy briefly addressed the possibility and problems of implementing a water reserves program at the national level. This analysis builds off the 2016 consultancy by assessing the legal framework and the priorities of the Bolivian government. The research focused on constitutional provisions, laws, regulations, and government plans that relate to the management of water. While the Bolivian government recognizes the need for a comprehensive water management program, numerous institutional deficiencies and contradictions in the legal framework serve as barriers to the implementation of any program at the national level. The findings suggest that there are several legal gaps that need to be filled before the Water Reserves Initiative can be successfully developed. However, there are several entry points for the WWF to begin working with the Bolivian government to implement the Water Reserves Initiative.

The WWF’s Water Reserves Initiative is an effort aimed at protecting hydrological conditions by allocating water for the environment in a region’s most important water producing areas. The program hopes to secure protection of freshwater ecosystems and free-flowing rivers, and the environmental benefits they provide. These benefits include the transport of sediments and nutrients, fish spawning and productivity, riparian protection, a buffer against natural variability in water availability, cultural values, recreation and navigation.  Furthermore, allocating water to the environment can prevent the over-allocation of water, which inevitably leads to serious water conflicts. It hopes to secure these protections by explicitly allocating water to the environment by statute or official decree where it has not already been allocated for agricultural, industrial, energy, or drinking purposes. The Water Reserve Initiative provides an opportunity to set rules for future infrastructure development and water allocation. It can contribute to better water governance since it sets the stage to analyze project impacts that could lead to the denial of a license if problems related to flow connectivity and biodiversity conservation arise…

View the full report here:

Implementation-of-Water-Reserves-in-Bolivia.-Harrison-Fellow-Colin-Hull.pdf (cu.law)

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41st Annual Colorado Law Conference on Natural Resources

Thursday, September 30 and Friday, October 1

Equity in the Colorado River Basin: How to Sustainably Manage a Shrinking Resource

Simply put – demands for water in the Colorado River Basin exceed supply.  Chronic drought, record heat, and rampant wildfires are already affecting the Basin’s overall health and resilience, and the historically low levels in Lakes Mead and Powell led to an unprecedented call on the river.  These compounding challenges come at a time when several key components of the “Law of the River” are sunsetting in 2026.  Key players are already revisiting the 2007 Interim Guidelines, Minute 323, and the 2019 Drought Contingency Plan.  Relatedly, endangered fish recovery programs relevant to the region expire in 2023.  Meanwhile, 48% of Tribal households in the U.S. do not have access to reliable water sources, clean drinking water, or basic sanitation.  These harsh realities hasten the need to advance sustainable water management, improve watershed resilience, and ensure clean water access through collaborative decision-making.  We look forward to bringing together diverse expertise from across the region to draw the roadmap to an equitable future in the Colorado River Basin.

41st Annual Colorado Law Conference on Natural Resources

Equity in the Colorado River Basin Conference Recording

Conference Program

CLE Accreditation Notice

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Water Exports and the San Luis Valley in Colorado: Understanding the History and Current Regulatory Framework

A Report from the Acequia Assistance Project

The Getches-Wilkinson Center is pleased to present the work of a team of students with the Acequia Assistance Project, who spent the last two years digging into the history, the politics, and law surrounding attempts to export water from the San Luis Valley.

The term acequia refers to one of the communally-owned irrigation ditches used by agricultural communities in parts of New Mexico and Colorado. But more than that, it describes a centuries-old tradition that treats water as a shared resource, essential to the life of the community. Together, the ditches and the communal values that created them sustain some of the oldest farming communities in the Southwest. The Acequia Assistance Project is a joint effort by the Getches-Wilkinson Center, Colorado Open Lands, and the Sangre de Cristo Acequia Association, to provide legal assistance and educational materials that help Colorado’s acequia communities maintain and protect the acequias.

The Acequia Project’s work is centered in the San Luis Valley in southern Colorado, where water is both scarce and essential for survival. The hydrology of the Valley relies on an aquifer system that sits beneath the Valley floor. Maintaining the health of the aquifers is a matter of life or death for the towns and large-scale farming operations that draw groundwater from wells, and for the communities that use surface water to fill their acequias. The aquifers also underpin the ecology of the Great Sand Dunes National Park, and water from the Valley feeds into the Rio Grande River, thereby helping Colorado to meet its legal obligations under the interstate Rio Grande Compact.

Despite the many longstanding demands on the Valley’s water, over the last three decades various developers have looked to the Valley as a source of water for Denver and the other rapidly growing cities on Colorado’s Front Range. Water in the Valley is precious, but it does not fetch the same prices locally that municipalities will pay in the Denver metropolitan area. This profit potential attracts developers looking to buy up water rights in the Valley and then pipe the water over the mountains to growing populations on the Front Range.

So far, these export proposals have withered in the face of fierce opposition from local residents. Residents understand that threats to the Valley’s water are also threats to their way of life, and have fought hard to preserve their region’s resources. Over the course of these fights, various laws and regulations have been built up to safeguard the Valley’s hydrology. But despite local opposition and a growing body of legal hurdles, water export proposals continue to this day. This threat of water exportation is a constant concern hanging over the acequia communities and other local residents that rely on the Valley’s water to survive.

As part of the Acequia Project’s partnership with communities in the San Luis Valley, a team of CU students have spent two years studying water export proposals in the Valley. The students sifted through the array of laws governing water use in the Valley, interviewed community leaders and Colorado water law experts, and tracked the history of water export proposals from the 1980s through the present day. Their final report, Water Exports in the San Luis Valley, draws on Colorado statutes and regulations, water court decisions, investigative reporting, and the work of expert agencies and other scholars to build a nuanced picture of the issue.

Water Exports in the San Luis Valley is intended to be a practical resource for opponents of water export in the Valley. To this end, it reviews the hydrology of the region and the critical roles played by the aquifers. It tracks the history of water usage and export attempts in the Valley. Finally, it catalogues and explains the various legal protections that have been built up over the years to prevent the looting of the Valley’s hydrological heritage.

The Acequia Assistance Project hopes first and foremost that, by collecting the knowledge and experience of the Valley’s occupants, this report will facilitate future defenses of the Valley’s water. But hopefully this report also serves to educate a wider audience and raise awareness about the history of water struggles in the Valley. The lessons learned over decades in the San Luis Valley will likely only grow in relevance as we come to grips with the changing climate of the American West.

WATER EXPORTS EXECUTIVE SUMMARY
WATER EXPORTS AND THE SAN LUIS VALLEY IN COLORADO: UNDERSTANDING THE HISTORY AND CURRENT REGULATORY FRAMEWORK (FULL PAPER)
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Colorado River: January 31 Drought Contingency Plan Deadline Looming-And the Shutdown Isn’t Helping

By Tarah Bailey, GWC Graduate Fellow

The last two decades marked the longest period of drought in the Colorado River’s recorded history, and water demands in the last decade exceeded available supply.  With thirty-five to forty million people in the U.S. currently relying on water from the Colorado River Basin, its waters are over allocated at a rate above mother nature’s ability to replenish.  As such, water supplies are steadily dwindling.  Lake Mead, the largest reservoir in the country and an important emergency reserve supply, is now only 38% full and Lake Powell is just 43% full.

The water users of the Colorado River Basin include seven states – Colorado, New Mexico, Wyoming, and Utah (the Upper Basin states) and Arizona and California (the Lower Basin states) – and Mexico. The river is managed under numerous compacts, federal laws, court decisions and decrees, contracts, and regulatory guidelines collectively known as the “Law of the River.”  Under the Law of the River, the Upper Basin states must deliver a certain amount of water to the Lower Basin states each year. Due to the drought in the last couple decades, water users have relied on Lake Mead and Lake Powell to compensate for water shortages and to maintain the water delivery requirements the Law of the River demands. But with Lake Mead and Lake Powell steadily depleting, the basin state users must curb consumption and figure out a way to limit usage. 

The Interior Department’s Bureau of Reclamation (“Reclamation”) oversees the Colorado River and enforces the Law of the River. Reclamation has spent more than three years urging the states to adopt plans that would reduce water consumption.  According to Anne Castle, former Assistant Secretary for Water and Science at the U.S. Department of the Interior and Senior Fellow at the GWC, the 2007 Interim Guidelines – which control the amount of water released from the Glen Canyon Dam (Lake Powell) – “are not sufficient to deal with the reality of the current extended drought, the possibility of further reductions of flows, over appropriation of the basin in general, and structural deficit in the lower basin.”  To address these ongoing issues, the basin states have been developing Drought Contingency Plans (DCPs) in response to the ongoing historic drought and to manage Lake Powell and Lake Mead in a more sustainable manner.

In December 2018, Reclamation’s Commissioner Brenda Burman called on the seven basin states and water entitlement holders in the Lower Basin to finalize and execute their DCPs by January 31, 2019. The DCPs would require some users to reduce their use – something seemingly impossible to the many farmers and irrigators reliant on the river’s waters in the region.  Because 70% of the river’s water is used by and for the basin’s irrigators, curtailing consumption must come at a price.

In Arizona, a desert state that has consumed beyond its allotted amount for years, farmers in Pinal County are not happy. The January 31 deadline is rapidly approaching and Arizona still does not have an approved plan.  Arizona is the only state where the DCP must be approved by legislation.  Although the DCP has been a top priority since legislators reconvened on January 14, they have only three weeks to approve it.  Out of the seven basin states, Arizona is struggling the most to figure out which water users should see cutbacks first and by how much. Farmers, cities, homebuilders, and tribes are all fighting for more.

The DCP will determine how Arizona’s water users will share the cut of at least 512,000 acre-feet of water out of the 2.8 million they use per year.  But to offset these cutbacks, funding for groundwater infrastructure is required. Arizona Gov.  Doug Ducey and the Central Arizona Project board, which oversees the 336-mile long water delivery system in central Arizona, have each pledged $5M to help fund groundwater infrastructure for Pinal County farmers.

Another issue holding up Arizona lawmakers is the current federal government shutdown.  While Reclamation remains funded through the shutdown (because of its involvement with energy and water appropriation), some of its legal counsel were furloughed. So local Reclamation managers in Arizona are trying to move forward without their counsel – a difficult feat due to the complexities involved.  But Reclamation recently reached an agreement with the Department of Interior to pay for a few of the solicitors and lawyers to come back to work to help hash things out.  With their lawyers on hand, hopefully Arizona’s DCP will be approved in time.

As for the other basin states, all other DCPs are approved.  Arizona remains the lone holdout.  If Arizona misses the January 31 deadline, Reclamation has stated it will step in and take control of matters to prop up Lake Powell.  What that means for the states is that they would lose control over the destiny of their Colorado River waters.  No one wants that.  

As the January 31 deadline looms, the fate of the Colorado River remains uncertain and the pressure is on Arizona lawmakers to make quick decisions.

Tarah Bailey (Colorado Law ’18) is a Graduate Fellow at the Getches-Wilkinson Center for Natural Resources, Energy and the Environment