Dead Pool Diaries: #ClimateChange, the doctrine of prior appropriation, and the #ColoradoRiver crisis — InkStain @jfleck #COriver #aridification

A desert landscape. Corrales, New Mexico, January 2023. Photo by John Fleck

Click the link to read the article on the Inkstain website (John Fleck):

Writing in 2018 in the Seattle Journal of Environmental Law, Kait Schilling argued that the doctrine of prior appropriation – the notion that those who first put water to use hold priority over those who came later – was no longer compatible with a climate-changed world.

“Climate change is diminishing water rights equally regardless of date of appropriation. Such a phenomenon makes the ‘first in time, first in right’ rule difficult to grapple with because right holders will be unable to access their water to its fullest extent. Because every human has a right to fresh water, the first in time, first in right mentality can no longer be sustained with the current state of climate change and population growth.”

The two sides of the argument:

  1. equity requires sharing the pain across all water users – seniors (mostly farms but also Native American communities) and juniors (mostly cities)
  2. to respond to climate change-induced shortages, we need to cut off juniors, or make them compensate seniors for the water they need

This debate is the narrow eye of the needle we’re trying to pass through right now in the rapid-fire negotiations underway to deal with this Colorado River crisis.


In a letter submitted to the U.S. Department of the Interior in December, Arizona’s water leadership – the Department of Water Resources and Central Arizona Water Conservation District – argued for “1”. (Huge thanks to Daniel Rothberg at the Nevada Independent for collecting and posting the letters and also writing some smart stuff about what’s in them – journalism as a public good. The context here is Interior’s request for scoping comments on the agency’s crisis management Supplemental Environmental Impact Statement – SEIS):

“All water users share risk from these conditions and the SEIS should ensure that the burdens associated with managing that risk are shared across all sectors and by all water users.”

In their letter to Interior, the staff of the Colorado River Board of California argued for “2”:

Finally, some across the Basin have advocated for Lower Basin water users to be individually assessed for reservoir evaporation, seepage, and other system losses. The Board recommends that these losses continue to be treated as a diminution of available annual supply, which can then be met through application of the Law of the River as supplemented by voluntary agreements.

I plead guilty to a misleading oversimplification here, because in their arguments both Arizona and California are making a broader argument about equitable sharing of both the impacts of climate change but also the underlying problem of the river’s overallocation. In defense of my oversimplification, I’ll simply assert that it is the “hot” part of our “hot drought” (see Udall and Overpeck 2017) that makes the difference between the successful gradual process of negotiation we’ve using for more than two decades (see my book Water is For Fighting Over) and the crisis management of 2023.


An improving forecast. Source: Colorado Basin River Forecast Center

Curled up with my morning coffee this morning  (with a huge thanks to the supporters of this blog who bought it for me), I was happy to note that the snowpack is decent right now, and therefore the Colorado River runoff forecast, is up 650,000 acre feet from Jan. 1. That’s an extra ~10 feet of elevation in Lake Powell, which is ~10 feet farther from the white hot fire of crisis management at Glen Canyon Dam.

One argument here is that even a decent year, by lifting the pressure on Glen Canyon Dam -> more water to Lake Mead -> less pressure for really deep cuts now -> less risk of litigation. (I have my own views on this argument – I disagree with it, which I’ll explain below – but I’m trying to do the “view from nowhere journalist” thing here, and I want to give the people I disagree with their best shot, because the argument is not unreasonable.)


In its EIS comments (see Daniel’s excellent work, did I mention its useful excellence? for the link), the Southern Nevada Water Authority laid out a plan calling for extremely deep cuts regardless of what the near term snowpack and runoff looks like – ~2.6 million acre feet of Lower Basin cuts from the states’ baseline allocations, essentially now. I’m torn between two similarly useful metaphors for what Southern Nevada says is needed – “ripping the bandaid off” and “a tourniquet, not a bandaid”.

In laying out its argument, Southern Nevada does version “1” above, much like the language of Arizona’s letter to Interior, with a call for distributing a portion of the cuts (those allocated to evaporation and system losses) sorta evenly across all water users.

I made much the same argument in my December letter to Interior, so I’m sympathetic to distributing the evaporation and system losses across all users before we think about allocation of the next level of cuts needed.

But here’s the thing that’s wrong with my argument.

To do that, you have to step outside the doctrine of prior appropriation. And the seniors – everyone mentions Imperial Irrigation District at this point, but they’re not the only senior with smart lawyers being asked to take cuts in this scheme, most notably Native American communities, who have deep legal and moral standing – will sue.

Flip the script, though, and try to take tourniquet-level cuts without spreading them broadly and you probably have to dry up the Central Arizona Project canal. Cue the “they’ve got smart lawyers and will sue” song. (To further complicate things, that would jeopardize the rights of Native American communities in Central Arizona that get their water through the CAP!)

This is the argument my smart friends who disagree with me make: A decent runoff this year would allow us to make more modest cuts (still substantial, but not nearly as deep) while avoiding tangling up the whole mess in the courts. I disagree, as I’ll explain below, but it’s not an unreasonable argument.

Obligatory “dancing with dead pool” visual reminder. Lake Mead shipwreck. Photo credit: John Fleck


In my comments to Interior, written in a Covid fever in December, I made an argument strikingly similar to Southern Nevada’s (“There was no collusion,” Fleck pleaded. “It’s just arithmetic!”) – that we need deep cuts now and forever. This is the tourniquet argument, and why I disagree with the “take advantage of a decent snowpack to make more modest cuts and avoid litigation” argument. The “now” part is because we’re staring down dead pool, and the “forever” part is that the river was always overallocated, and with climate change it’s now really honest truly overallocated for sure.

Even if we have a decent snowpack, I believe it is imperative that we use that water to refill reservoirs rather than irrigate alfalfa and lawns.

I’m genuinely concerned about throwing this whole thing into the courts. [ed. emphasis mine] As we learned with Arizona V California six decades ago, litigation is a terrible way to manage a river. Much of our dilemma today is a result of the Supreme Court ignoring arithmetic and allowing us to overuse the river’s water.

My friends who argue for taking advantage of a bit of extra water, if we’ve got it, to try to stay out of court are not making an unreasonable argument.

But we can’t entirely blame the Supreme Court for our troubles. Part of today’s dilemma is the result of our failure to do the hard work of grappling with the court’s mistakes and sufficiently reduce our use of water. We’ve been avoiding litigation for too long by emptying the reservoirs and letting people use the water to irrigate alfalfa and lawns.

Bureau of Reclamation completes project at #GlenCanyonDam to protect local #water supply during extremely low lake levels #ColoradoRiver #COriver #aridification

Mechanic apprentice Joseph Sams grinds a coupling that is part of the new lower water intake for the city of Page. Reclamation crews at Glen Canyon Dam constructed the new intake as a precaution as Lake Powell’s elevation is at historically low levels.

Click the link to read the article on the Bureau of Reclamation website:

Reclamation crews at Glen Canyon Dam recently completed a new water intake connection to accommodate the low water levels at Lake Powell. These efforts ensure water will be delivered to the city of Page, Arizona, and the LeChee Chapter of the Navajo Nation even if Lake Powell drops to 3,370 feet. Elevation 3,370 feet is known as “dead pool” and is the point at which no “excess” water can be passed through the dam, only the volume of water that enters the reservoir will be able to be delivered downstream.

Lake Powell’s elevation is expected to drop to a post-filled, all-time low (below 3,522.24) before the end of the month and projections show that this year it is at risk of dropping below minimum power pool (elevation 3,490 feet), which is the lowest point the dam can currently generate hydropower. The increased risk to Lake Powell’s water level also raised concern about the stability of the local water supply.

A valve for the new lower intake hangs above the work area below Glen Canyon Dam Bridge as crews prepare to put the valve into place.

The city of Page was first established in 1957 for workers who were constructing Glen Canyon Dam.& In 1975, Page became a municipality, which prompted an agreement with Reclamation to deliver raw water from Lake Powell to their municipal water system, which now delivers treated water to the area’s 7,500 residents, the Navajo Nation community of LeChee, and the local businesses that serve an estimated 3 million tourists each year.

Reclamation personnel Damion Thomas (left) and Randolph Sloan (right) prepare to lower a valve down into what is referred to as a vault, where the valve will tap into two bypass tubes to construct a lower water supply for the nearby communities.

With the completion of this project, the water delivery system can now draw water from Lake Powell at three different elevations: (1) the main intake at a reservoir elevation of 3,480 feet, (2) the backup which taps into two penstocks and can access water at elevation 3,462 feet, and (3) the latest and lowest intake which taps into two bypass tubes (also referred to as river outlet works) and can access water as low as elevation 3,362 feet.

The new intake taps into two bypass tubes and then connects to the waterline leading to the municipal water treatment system.

“Working with personnel from the city of Page and the LeChee Chapter, we started looking for solutions,” said Reclamation Upper Colorado Basin Region Deputy Power Manager Bob Martin. “Our engineers and mechanical crews explored a number of possible options, and we came up with a relatively easy solution to a potentially large problem for the people who rely on this water source.”

This latest intake was made possible through an extension of the original water agreement with the city of Page. Crews at Glen Canyon Dam started construction in October and completed the project in December of 2022. The city provided the supplies and paid for the labor.

Glen Canyon Dam has four bypass tubes, also referred to as river outlet works (ROWs) that can draw water from Lake Powell around elevation 3,370 feet, bypassing the powerplant and sending the water downstream. To send water from the new intake to the city of Page, the bypass tube’s valve is closed, allowing the pipe to fill with water, creating enough head pressure to send the water through the connected piping leading to Page’s water treatment facility.

“The design and construction of this project is proof of Reclamation’s commitment to addressing prolonged drought and critically low reservoir levels,” said UCB Regional Director Wayne Pullan. “We face the impacts of aridification together. The lower water intake at Glen Canyon Dam provides additional water security—the promise of a continued dependable and reliable water supply.”

Tribal leaders stress education, water issues in first-of-its-kind address to Colorado lawmakers: Chairs of Southern Ute and Ute Mountain Ute tribes highlight need for consultation and cooperation — #Colorado Newsline

Click the link to read the article on the Colorado Newsline website (Chase Woodruff):

Leaders of the two federally-recognized Native American tribes within Colorado’s borders used part of their first annual address to the state’s General Assembly to brief lawmakers on the long history of their relations with other governments — beginning with a treaty with the Spanish more than a century before the United States existed.

“The Ute people have been here since time immemorial,” Chairman Manuel Heart of the Ute Mountain Ute Tribe said. “We as the Ute people have lost a lot over time, up to the present day, 2023 … We all claim these lands as our homelands, but let us look at the past history and what has been taken away.”

Heart and Melvin J. Baker, chairman of the Southern Ute Tribe, stressed attention to education and water issues in separate speeches to nearly 100 Colorado lawmakers gathered for a joint session of the state Legislature on Wednesday. They were the first addresses delivered under Senate Bill 22-105, a law passed last year that invites tribal representatives to give an annual address modeled on the governor’s State of the State speech.

“Today’s address marks an historic step forward in strengthening our partnership with Colorado’s Tribes and uplifting the priorities, concerns and accomplishments of those communities,” Senate President Steve Fenberg of Boulder and Majority Leader Dominick Moreno of Commerce City, both Democrats, said in a statement.

The Southern Ute and Ute Mountain tribes are headquartered on reservations in southwest Colorado’s La Plata and Montezuma counties, respectively, where they were forcibly relocated in the late 19th century following a gold and silver rush in the San Juan Mountains. A third Ute tribe is headquartered on the Uintah and Ouray Indian Reservation in eastern Utah.

In general, Baker said, the two tribes have a strong working relationship with state and local agencies in Colorado.

“When we look at other states, we often see friction between the states and the tribes within (their) borders, but not in Colorado,” he said. “Colorado is the leader among all states when it comes to honoring the tribal-state relationship.”

But both chairmen faulted lawmakers for legislative efforts that have not always taken tribal concerns and sovereignty into account, like its 2019 referral of a sports-betting measure to the statewide ballot, where it was approved by voters. Heart and Baker said that their tribes weren’t consulted on the measure’s language, and have faced hurdles in setting up sports books at tribal casinos.

“There are times when you legislate that you may not remember that there are two sovereign tribes within your borders,” said Baker.

Education a priority

Heart praised the Legislature’s passage of Senate Bill 21-116, which prohibits the use of American Indian mascots by public schools and went into effect last year. But he noted that Colorado’s curriculum standards don’t include specific teachings on the history of the Utes, and called on lawmakers to change that.

“It is important that future generations are provided with this history and knowledge,” Heart said. “Now is the time to ensure that the oldest continuous residents of this country, their history be required in the curriculum in the public education system.”

Other recent legislation passed by the General Assembly includes the creation of a new state office to investigate cases involving missing and murdered Indigenous people. The Colorado Bureau of Investigation last month launched a Missing Indigenous Persons Alert system, which was activated for the first time on Jan. 3 following the disappearance of Wanbli Oyate Vigil, a 27-year-old Denver resident who was found deceased by police two days later.

Heart said a priority for the Ute Mountain Utes is to improve the quality of education on tribal lands. The tribe’s efforts have included the opening of a new charter school in 2021, where students are taught the Ute language and other cultural traditions alongside standard elementary instruction. He spoke of the long-lasting damage caused by the boarding schools where many Native American children were sent under federal forced-assimilation policies as recently as the early 20th century.

“The boarding school era was an atrocity,” Heart said. “It had a devastating impact on three to four generations of tribal families in a very negative way, right up to today.”

Baker urged lawmakers to consult and cooperate with the Southern Ute Tribe on issues including oil and gas and clean-energy development, as well as regional water management in an age of worsening drought driven by climate change. Both tribes hold key water rights within the Colorado River system, where states, tribal governments and federal agencies are negotiating ahead of a 2026 deadline that could reshape the river’s future.

“Please remember that our most important resource is water,” Baker said. “It is essential that we work together for the protection of those water rights so they are present for future generations.”

January 2023 #LaNiña update, and the #ENSO Blog investigates, part 2 — NOAA

Click the link to read the post on the ENSO Blog website (Emily Becker):

Hello from the 103rd Annual Meeting of the American Meteorological Society! Your trusty ENSO correspondent is writing to you from Denver, CO this January. (ENSO = El Niño/Southern Oscillation, the entire El Niño/La Niña system.) Today I have an overview of current conditions and the forecast, before getting back to the question I posed last month—how does ENSO affect daily temperatures during the winter? Let’s get to it, as there’s a lot of ground to cover this month!

Current events

The sea surface in the tropical Pacific has been cooler than the long-term average (1991–2020, currently) since mid-2020, and it remains so. However, we did see some weakening of this pattern over the past few weeks.

Sea surface temperatures in the tropical Pacific Ocean from mid-November 2022 through early January 2023 compared to the long-term average. East of the International Dateline (180˚), waters remained cooler than average, a sign of La Niña. Graphic by, based on data from NOAA’s Environmental Visualization Lab. Description of historical baseline period.

What we did not see weaken was the La Niña-like atmospheric pattern over the tropical Pacific. The atmosphere typically responds to La Niña’s cooler-than-average sea surface with a stronger-than-average Walker circulation: more rain and clouds over Indonesia than average, less over the central tropical Pacific, and stronger winds, both the near-surface, east-to-west winds, and the upper-level, west-to-east winds. In December, all these patterns were still clearly present.

We also regularly take the temperature of the subsurface tropical Pacific, as the water at depth can supply the surface. There’s been a substantial amount of cooler-than-average water under the surface since late summer, but this weakened a lot over November­–December. However, the subsurface in the eastern Pacific is still relatively cool.

La Niña is still in force, then. What’s to come, you ask?

Looking ahead

Let’s get right to the punchline: there’s an 82% chance that La Niña will have ended and neutral conditions will reign by springtime (March–May). Forecasting the exact season (any three-month average is a ‘season’ in the ENSO-monitoring world) that La Niña will end (January–March? February–April?) is always challenging, since the range of potential outcomes shown in the forecast models is still substantial even just a couple months ahead. Our dynamical computer models, computer programs that use complex mathematical equations to predict how current conditions will evolve in the future, are leaning toward an earlier transition. However, the statistical models, which make predictions based on how similar conditions from past years evolved, are thinking neutral conditions will arrive a little later. The forecast team is favoring the statistical models’ outlook, in part due to that strong La Niña-like atmospheric circulation I mentioned above.

NOAA Climate Prediction Center forecast for each of the three possible ENSO categories for the next 8 overlapping 3-month seasons. Blue bars show the chances of La Niña, gray bars the chances for neutral, and red bars the chances for El Niño. Graph by Michelle L’Heureux.

You may notice those red bars lurking way over on the right of this chart. Is El Niño in store for next fall/winter??? We need to see more signs of El Niño before we would start expecting that. It’s still more than 6 months away, and the probabilities for neutral+La Niña are still pretty close to even with El Niño. Also, since ENSO is a seasonal pattern, we need to be able to expect that El Niño’s characteristic warmer-than-average tropical Pacific would be present for more than one or two months in a row. We don’t have strong physical signs right now, either, like a large amount of warmer-than-average water looming under the surface, and the Walker circulation is still amped up. Stay tuned, for sure—but for the moment, we are not issuing an El Niño Watch.

One more thing to mention this month—California is getting deluged with rain and snow right now with a series of atmospheric rivers. You may be saying “hey wait, I thought La Niña meant California and the southwest would be dry this winter!” It’s true, typical La Niña impacts include a drier-than-average southwestern U.S. and more rain and snow than average in the Pacific northwest. But ENSO only makes certain seasonal impactsmore or less likely—it’s not a guarantee of a drier/colder/warmer/wetter winter. If it were a guarantee, it would make our jobs a lot easier! In fact, we have a fairly recent example of another winter that deviated from expected La Niña impacts, 2016–17.

Also, it’s currently impossible to predict short-term weather patterns months in advance. Right now, we can only say that La Niña winters tend to be drier across the southern U.S. Maybe in time we’ll have the capability to predict this type of subseasonal variability months in advance. You can bet there will be a lot of research into understanding the weather and climate drivers behind this extreme rain/snow pattern and if/how climate change factors in.

You promised me daily temperature!

Not a lot of space left in my column for an update on my little investigation into how ENSO affects daily temperature during the winter! So, I’ll just introduce the next steps and get to the details in an upcoming post.

I looked at the winter daily average temperature in December’s post, including the overall range of daily temperature and how that range looked during El Niño and La Niña separately. We found that, generally, La Niña winters had a wider range of daily temperature across much of North America, with some decreased range in the vicinity of the Hudson Bay. El Niño winters were generally opposite.

We certainly had some extreme temperature swings across a lot of the U.S. over the past few weeks—is that you, La Niña? Just like the heavy rain and snow that California is currently experiencing, we can’t take one short-term example and extend it to the entire season. (Again, we’ll learn a lot from the research that will be conducted about this recent weather.)

But the average temperature isn’t what we really notice, as we go about our daily business. We’re more likely to notice the highest and/or lowest temperature.

The average variability of daily low temperatures (left) and high temperatures (right) within winter. Yellow regions show where the range of daily temperatures in winter is greatest, while blue shows regions with the narrowest range. The range is assessed using the standard deviation of daily low or high temperature averaged over all winters (December–February), 1950–2020. Daily temperature data source is Berkeley Earth. Map by based on analysis by Emily Becker.

Here, we’re looking at the range of daily low and high temperatures during December–February for all winters from 1950–2020. Overall, there is a lot more range in daily low temperatures than highs, especially in the middle of the continent. Only in the subtropical regions of North America do daily maximums vary more than minimums. Details of my analysis are in the footnote.

That’s all I have room to talk about this month! We’ll have to wait for next month to see how ENSO affects the pattern of daily maximum and minimum temperatures we see above and get into some discussion about the physical factors behind these patterns. That is, if there’s time! Thanks for conducting this science-on-installment experiment with me.


Details on the analysis:

  • The maps show the standard deviation of daily maximum or minimum temperature for each winter averaged over all winters 1950–2020.
  • Daily temperature data: I used Berkeley Earth daily average temperature dataset. It’s also available here.
  • Years included: 1950–2020. Berkeley Earth is available through near-present, but the data I downloaded ended in 2020. I’ll update with 2021–2022, but I don’t expect the overall results to change.
  • Programming language: I used Python. Jupyter notebook available upon request.

2022 was world’s 6th-warmest year on record: Antarctic sea ice coverage melted to near-record lows — NOAA

North American Drought Monitor map November 2022.

Click the link to read the article on the NOAA website (John Bateman):

The planet continued its warming trend in 2022, with last year ranking as the sixth-warmest year on record since 1880, according to an analysis by scientists from NOAA’s National Centers for Environmental Information (NCEI).

Below are highlights from NOAA’s 2022 annual global climate report:

A world map plotted with color blocks depicting percentiles of global average land and ocean temperatures for the full year 2022. Color blocks depict increasing warmth, from dark blue (record-coldest area) to dark red (record-warmest area) and spanning areas in between that were “much cooler than average” through “much warmer than average.” (NOAA NCEI)

Climate by the numbers

Earth’s average land and ocean surface temperature in 2022 was 1.55 degrees F (0.86 of a degree C) above the 20th-century average of 57.0 degrees F (13.9 degrees C) — the sixth highest among all years in the 1880-2022 record.  

It also marked the 46th-consecutive year (since 1977) with global temperatures rising above the 20th-century average. The 10-warmest years on record have all occurred since 2010, with the last nine years (2014-2022) among the 10-warmest years.

The 2022 Northern Hemisphere surface temperature was also the sixth highest in the 143-year record at 1.98 degrees F (1.10 degrees C) above average. The Southern Hemisphere surface temperature for 2022 was the seventh highest on record at 1.10 degrees F (0.61 of a degree C) above average. 

Map of global average surface temperature in 2022 compared to the 1991-2020 average, with places that were warmer than average colored red, and places that were cooler than average colored blue. Based on data from NOAA’s National Centers for Environmental Information. (NOAA, using NOAA NCEI data)

2022 as ranked by other scientific organizations

NASA scientists conducted a separate but similar analysis, determining that 2022 ranked as Earth’s fifth-warmest year on record, tied with 2015. The European Commission’s Copernicus websiteoffsite link ranked 2022 as the globe’s fifth-warmest year on record.

An annotated map of the world plotted with the year’s most significant climate events. Please see the story below as well as the report summary from NOAA NCEI at offsite link. (NOAA NCEI)

Other notable climate findings and events

  • Global ocean heat content (OHC) hit a record high: The upper ocean heat content, which addresses the amount of heat stored in the upper 2,000 meters of the ocean, was record high in 2022, surpassing the previous record set in 2021. The four highest OHCs have all occurred in the last four years (2019-2022).
  • Polar sea ice ran low: The 2022 annual Antarctic sea ice extent (coverage) was at a near-record low at 4.09 million square miles. Only the year 1987 had a smaller annual extent. During 2022, each month had an extent that ranked among the five smallest for their respective months, while the months of February, June, July and August had their lowest monthly extent on record.

In the Arctic, the average annual sea ice extent was approximately 4.13 million square miles — the 11th-smallest annual average sea ice extent in the 1979-2022 record, according to data from the National Snow and Ice Data Centeroffsite link.

  • Global tropical cyclones were near average: A total of 88 named storms occurred across the globe in 2022, which was near the 1991-2020 average. Of those, 40 reached tropical cyclone strength (winds of 74 mph or higher) and 17 reached major tropical cyclone strength (winds of 111 mph or higher). The global accumulated cyclone energy (ACE) — an integrated metric of the strength, frequency and duration of tropical storms — was the fourth lowest since 1981.
  • December 2022 was warm: The average temperature across global land and ocean surfaces in December was 1.44 degrees F (0.80 of a degree C) above the 20th-century average. This ranks as the eighth-warmest December in the 143-year NOAA record. 

Regionally, Africa tied 2016 for its second-warmest December on record. South America’s December ranked fourth warmest on record, while Europe saw its 10th warmest. Although North America and Asia both had an above-average December temperature, neither ranked among the 20 warmest on record.

More: Access NOAA NCEI’s year-end 2022 global climate report and images.

Webinar: The Upper #ColoradoRiver and #SanJuanRiver endangered fish recovery programs: What’s at stake as reauthorization looms? — @WaterEdCO #COriver #aridification

Read about the federal role in Colorado water management, including the endangered fish recovery programs, and get prepped for the webinar by checking out the Fall 2022 issue of Headwaters magazine, The Federal Nexus.
Photo by Nathan Vargas, U.S. Fish and Wildlife Service