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The Colorado River is drying. And that’s a significant problem, not just for Coloradans, but for residents of the seven states that make up the Colorado River Basin—and even Mexico. The river feeds two major reservoirs, Lake Mead and Lake Powell, that provide these states with hydroelectric power and general water usage.

The seven Colorado Basin states—Colorado, New Mexico, Utah, Wyoming, Arizona, California and Nevada—have failed to settle on a plan to reduce their water consumption. The states missed a deadline set by the U.S. Bureau of Reclamation last month to make such an agreement, which means federal water cuts are likely on the horizon. But basin states and their residents remain unsure about what cuts will be made—and how that might affect life in the ever-drying West.

To better understand the legal side of the Colorado River issue, I spoke with Kevin Lynch, an associate professor with the University of Denver’s Sturm College of Law. But first, I talked to someone who’s been on the ground—and in the water—telling the story of the river and how Coloradans might be affected by its dwindling water supply.

Alex Hager:

My name is Alex Hager, I’m a reporter for KUNC Public Radio in northern Colorado, where I cover the Colorado River and water in the west, which I’ve been doing for almost exactly a year.

Emma Atkinson:

So, the first thing I want to talk about… Tell me a little bit about where we’re at with the Colorado River issue. Give me some background—how did we get here?

Alex Hager:

The point that we're at right now is that the river is over-allocated. It's governed by a century old set of rules that is not really qualified to handle today's conditions on the river—but there's still a ton of demand.

Emma Atkinson:

That century-old agreement Alex mentioned is the Colorado River Compact of 1922, which funnily enough did turn 100 this year. Formed under President Herbert Hoover, the agreement aimed to equitably divide the water of the Colorado River among the seven basin states. However, 100 years later, we’ve got a whole lot more people and a whole lot less water.

Alex Hager:

The Colorado River is in a crisis. It is a water lifeline for 40 million people across the Southwest, it supplies, cities and farms from the Colorado Rockies all the way down to LA and into Mexico. And without it, cities like Los Angeles, Las Vegas, Albuquerque, Denver would not exist in the capacity that we know them to exist today. And because 40 million people and so many acres of irrigated farmland depend on this one resource, when it fluctuates—and recently, it's been fluctuating lower—they feel that.

So even through conservation in cities, as growth in this area has been met with enough conservation to stretch out a pretty finite water supply over a growing population, there still isn't enough water to go around. And the real driver of the crisis right now is the fact that we're in a 23-year drought. There's always going to be some ebb and flow of the river; you've got dry years, you've got wet years. But right now, climate change is making it so the dry years are sticking around—there's a longer stretch of dry years. And those dry years are driver—it's the worst drought that this region has seen in 1800 years.

And that just means that there is less water to go around. As a lot of people are trying to get a slice of the pie, the pie itself is shrinking. So right now, lawmakers and policymakers and water managers across the basin are trying to figure out how to do exactly that. And the hopes of the water coming back are kind of going out the window. Climate change is changing the playing field. And we are just staring down the barrel of a future with less water and a lot of people that are relying on it.

Emma Atkinson:

Okay, so we’re talking about people relying on water. You said “the pie is shrinking.” Tell me what a slice of the pie looks like for Coloradans.

Alex Hager:

There is a long tradition of growing stuff in this state; it is a big part of the state's economy. And those places have very old water rights, to the point that it's going to be difficult to take water away from them. Agriculture is the largest water user in the Colorado River Basin. And we're reaching a point where after, you know, decades of agricultural water being almost untouchable in a legal sense, there are serious conversations about cutting into the share that's given to agriculture—simply because there is so much demand on the population side, on the municipal and urban and suburban side, that it's finally reaching a point where there might be programs to pay off farmers and ranchers to use less water, just because we need to shift where it's being used. And I think Colorado is a great example of the way that that tension is playing out in the basin as a whole.

Emma Atkinson:

There’s a finite amount of water. And cuts will have to be made, one way or another. Alex says the tension between agricultural and municipal use of water is growing and will only become more pronounced. That means states will have to get creative about how they dole out the amount of water they are allotted. So what does that look like—and how much does it cost?

Alex Hager:

To compensate for those cuts to keep the taps flowing, in places where there is less Colorado River water entering the system every year, they're going to have to get creative. And that's going to mean investing in new technologies a lot of the time. This is especially when we're talking about kind of municipal water use.

So I've been doing some stories over the last couple of months on ways that communities are doing that. You know, desalination is one of the technologies have been proposed. But that's incredibly expensive and not seen as something that's a really big piece of the water portfolio. One thing that is getting a lot more excitement is water reuse: taking wastewater—sewage, effectively—and treating it up to a level that it can be re submitted into the drinking system.

But to build those plants, and to have filtration systems that are up to snuff, that is going to take a lot of public money. And that's going to drive up the cost of, you know, every drop that comes out of your tap.

Emma Atkinson:

Right, and you talk a little bit about places that are doing wastewater recycling and desalination. Are there any places in Colorado that you can point to, you know, municipal areas that that are doing this with success or some degree of success.

Alex Hager:

Cities really like to brag about how much they've been able to stretch out their supply. Because, you know, over the last three to five decades, a lot of these cities have gotten the same amount of water delivered from the Colorado River every year. But they've grown by hundreds of thousands of people. And they've been able to stretch that out and change the way that their water is used per capita.

Sometimes that is as obvious as low flow showerheads and kind of minimal flush toilets. And a lot of the progress that we've seen made on that has been in changing how much grass we grow. Having this kind of turf grass, you know, the grassy, short, long kind of soccer fields- and parks-type grass is very water intensive. And so by either supplementing or either changing out that grass for native plants that are a little less thirsty, or by changing the way that we water that grass, there have been programs to have grey water and treated effluent and recycled wastewater, that's not quite clean enough for drinking. But it's certainly clean enough to grow a soccer field.

Introducing more of that water into the system has been part of the way that cities have reached that level of success. Realistically, though, it's important to remember that 80% of the water in the Colorado River Basin, about that much, is used for agriculture. And realistically, the biggest, most substantial changes to water use in the long term in the Colorado River Basin are going to happen in agriculture. Cities have been conserving a lot. They are pledging to conserve more, and they're going to get creative in how they supply drinking taps. But realistically, the biggest changes that are going to need to happen are going to be in agriculture.

Emma Atkinson:

There are other solutions, too, like filtering wastewater for use on lawns and gardens—or even for drinking water. And the obvious water conservation tactics include using low-flow shower heads and toilets and asking residents to run their dishwashers and water their yards less frequently. Whatever communities decide to do, it will take a toll—whether that’s on farmers and ranchers or cities and towns. But what do the long-term environmental consequences look like?

Alex Hager:

Realistically, there's not a way out of this without the states involved figuring out how to use less. There simply is not enough water in the system to go to the people and the farms in a way that they currently depend on it.

It is not the end of life in the West, it is not going to be this Mad Max, post-apocalyptic desert hellscape. But it is going to mean changes to the way that industries and cities develop. It is going to require very serious development and investment in new technology, like desalinating sea water, like recycling wastewater, putting it back into the system, like other programs to conserve water, that are going to be expensive and are going to make the cost of the water that comes out of your tap more expensive.

It's going to mean changes to how we plan and design cities, it's going to mean less grass, fewer grassy lawns in places where people have been able to grow that, it's going to mean more native plants in front of and behind your house, it's gonna mean cuts, probably, into agriculture in places where agriculture has been a strong part of the community for decades or centuries. And that's probably going to drive the cost of produce up. So it's not going to be the end of the world, but it is going to mean changes, and likely it's going to mean that things are going to look different and get more expensive.

Emma Atkinson:

Even when it’s about the environment, it’s still all about the money.

And what about the legal side of things? DU law professor Kevin Lynch helped me understand why the upper and lower basin states just can’t seem to come to an agreement about water use reduction—and how the two largest reservoirs in the United States factor into the argument.

Kevin Lynch:

The big deal here is that the federal government, through the Bureau of Reclamation, which is a big federal agency operates in the western United States, they operate the dams and reservoirs at Lake Powell and Lake Mead, which are the two kind of huge key reservoirs in the Colorado River system. So Lake Powell is before the Grand Canyon, and then they release water through that, that then is stored at Lake Mead for use by the lower basin states. So the upper basin states (Colorado, Wyoming, Utah, New Mexico), they store their water in Lake Powell. And then they're obligated to release a certain amount of water under the Colorado River Compact from Lake Powell that then gets stored in Lake Mead for use by states like California, but also a little bit Nevada and Arizona, which are the lower basin states.

And because the Bureau of Reclamation operates these reservoirs on the dams, they have a lot of authority in managing this system. And those two reservoirs are really in crisis right now. We've been in a severe drought situation for the past, you know, several decades really. And unfortunately, there's not a prospect of that really getting better in the future. We might have some good snow years based on the weather forecasts, but the long-term trends are really looking bad. And so we've had really a structural deficit in the water that is used from those reservoirs in recent years, on the range of 2 million acre feet more being used each year than is flowing into the reservoirs.

Emma Atkinson:

Quick note here about that acre-feet measurement: According to Alex, one acre-foot is equal to the amount of water it would take to cover a football field up to one foot deep. Could your team’s punt returner score in those conditions? How about running the football back millions of times through a foot of water? Anyway, back to Professor Lynch….

Kevin Lynch:

And so that's why the federal government has asked the states to come up with a plan to reduce between 2 million up to 4 million acre feet a year to try to stabilize the system—or even if they could optimistically raise the water levels at those reservoirs, so that we'd have a more sustainable system going forward into the future.

Emma Atkinson:

So let's talk, let's talk best case scenario for the states. What happens next?

Kevin Lynch:

So I mean, I think the best-case scenario is the states are able to come up with an agreement on their own, so that they can decide what's equitable and fair, from their perspective. They'd rather do that, than have the Bureau of Reclamation come in and force cuts on them. We’re already seeing a little bit of that in Nevada and Arizona, in particular, being forced into reducing their water usage, just because of the lower priority, they don't have the same senior water rights that California does. And so they're the first to face cuts in the lower basin.

You know, one of the big issues with the Colorado River Compact is that the lower basin is, essentially, they fully utilize all of their water rights. But in the upper basin states, they've never fully diverted 7.5 million acre feet a year. And so that is the big concern, is that if these types of cuts come, it might interfere with a lot of plans that are ongoing, and Colorado and many other upper basin states to further divert more water from the Colorado River to get what they see as they're entitled to under the Colorado River Compact.

Emma Atkinson:

Okay, so there's kind of a disconnect between what the federal government might do in terms of cuts and what the States believe they have the legal right to in terms of water allocation, correct?”

Kevin Lynch:

It would be great if states can come up with their own plan. But there's a bit of brinksmanship right now, where, you know, lower basin is demanding more cuts from the upper basin and upper basin is demanding more from the lower basin, in large part, because those of us in the upper basin like Colorado, we haven't even fully developed all of our water rights. So we're not even using as much as those lower basin states already are.”

Emma Atkinson:

Lynch runs the environmental law clinic at DU, where he and his students work on a number of water-related issues, among them the contention about Colorado’s water use and how it relates to the Colorado River crisis.

Lynch made one point in particular that speaks to an essential understanding of the work they’re doing—he mentioned that the state of Colorado hasn’t fully developed its own insular water rights agreement. Now, though, Colorado communities are beginning to develop their own projects meant to stake a claim to some of the water the state is entitled to—thanks to that 1922 compact I mentioned earlier.

Kevin Lynch:

We've been working on a number of water-related issues. You know, what's going on in Colorado, as I mentioned before, the state hasn't fully developed all of the water rights that it is on paper entitled to under the Colorado River Compact. So there are additional attempts to divert water from the Colorado River. This is being done by places all along the front range: Aurora, Colorado Springs Denver, there's a body called Northern Water that serves the Northern Front Range communities like Greeley and those types of communities around there. All of them have projects either in the proposal stage, or some of them are actually starting to construct those projects to divert more water from the Colorado River.

Emma Atkinson:

But any allocations made before the federal government steps in with its own water cuts could actually make things more complicated in the long run.

Kevin Lynch:

And when there's just not enough water in the Colorado River, and we're already being asked to find ways to save water and even more when you divert more of that water, it’s just increasing the pain that's going to come in terms of the cuts down the road. So that's what we've been involved in. We've been doing some advocacy before various government agencies and sometimes in court, although so far, we haven't been successful on behalf of our clients and stopping any of these new diversions yet, but have been trying to kind of call this out as an unsustainable path forward.”

Emma Atkinson: What would you say is the most interesting or important thing from a legal perspective to consider when you're thinking about this Colorado River issue and water rights issues and, and water cuts and reductions?

Kevin Lynch:

Yeah, that's an interesting question. So, the way I really think about this is our water rights have evolved, based on the unique hydrology that we had here in the West. You know, American water law derived from English water law, which was based on riparian access, which meant people who lived along a river or stream had the right to get that water. And that didn't really work in the West. And that's how we developed this prior appropriation system that we have now.

But as we were talking about earlier with when the Colorado River Compact was developed, we had a very different hydrological structure. And given that the changes that are already happening and expected to continue into the future with climate change, it's going to put a lot of pressure on the system to continue to evolve. So the Colorado River Compact doesn't seem like it can survive, at least in its current form and current interpretation; it will have to be renegotiated or maybe reinterpreted, to become more flexible to deal with the changes that we're seeing here. So that's what you can expect to see. And of course, with change comes a lot of disruption and concerns. And it just makes it changes hard for people. And we're going to have to brace ourselves and start tackling that, so that we can set ourselves on a path that will actually be sustainable into the future.

Emma Atkinson:

Right. And on that note of sustainability—has there been any talk about what is sustainable moving forward for this issue in particular?

Kevin Lynch:

There are some groups, including groups that my students and I have worked with in our environmental law clinic here at DU, that say that this whole system is just… it's not going to be able to be saved. And they've been calling for just giving up on Lake Powell, draining it, trying to focus on saving Lake Mead. Because the alternatives—if you're going to try to prop up these two giant reservoirs in the middle of the desert, it would mean dramatic impacts to our water use, which would primarily fall on agriculture. And, you know, they question, and I think it's very fair, whether we would have the political will to just dry up agricultural communities across the western US in order to say Lake Powell.

Emma Atkinson:

Lynch says there’s one other important point to consider when thinking about the Colorado River crisis: the impact on populations of racial and ethnic minorities.

Kevin Lynch:

One of the issues with our legal system is that it developed in a time where we had a lot of racially exclusionary principles. You know, a lot of the initial appropriations were adopted at a time where we were still engaging in active genocide against Native Americans and or property rights were granted at a time when black people were enslaved in this country, or other racially exclusionary policies.

So, our system is really built on this inequity from a racial perspective. And as we continue to try to adapt and evolve our water rights system, I think it's really critical that we take steps to try to remedy some of those past failures and make sure we have a more equitable future, you know, incorporating tribal communities—and they have legal water rights, but functionally, they haven't been able to develop them fully. Those are types of examples that are key issues for us to focus on going forward and not just simply use our water rights system to replicate the racial inequities of the past.”

Emma Atkinson:  

Once again, that’s DU law professor Kevin Lynch. He runs DU’s Environmental Law Clinic, which provides students with the opportunity to hone their legal skills in real-world situations while contributing to the public good. And thanks to Alex Hager, who covers the Colorado River Basin for Greeley-based public radio station KUNC. For more information on their work and the sources used in this episode, go to du.edu/radioed. Tamara Chapman is our managing editor. James Swearingen arranged our theme. I’m Emma Atkinson, and this is RadioEd.

Original source can be found here.