The #Runoff: Non-depletion vs. delivery obligation — @AspenJournalism #ColoradoRiver #COriver #aridification

The Colorado River from Navajo Bridge below Lee’s Ferry and Glen Canyon Dam. Jonathan P. Thompson photo.

Click the link to read the newsletter on the Aspen Journalism website (Heather Sackett):

Colorado River politics is heating up with the looming negotiation of the post-2026 operational guidelines and state representatives are laying the groundwork to get Colorado’s water world on the same page regarding the state’s position and talking points. 

Colorado’s now full-time commissioner to the Upper Colorado River Commission Becky Mitchell has embarked on what she called a road show, meeting with water managers and organizations around the state to open the lines of communication and share news related to the negotiations. Among what she called her “irrefutable truths” is that according to the 1922 Colorado River Compact that divided the waters equally (7.5 million acre-feet per year to each) between the upper and lower basins, the upper basin states (Colorado, Utah, New Mexico and Wyoming) do not have an obligation to deliver 7.5 million acre-feet of water per year to the lower basin. What they have is a “non-depletion” obligation. So long as the upper basin uses less than 75 million acre-feet over 10 years, there’s no compact violation. I doubt the lower basin sees it that way.

What the compact actually says is this: “The States of the Upper Division will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of 75,000,000 acre-feet for any period of ten consecutive years…” 

Its actual meaning has long been a point of contention for Colorado River scholars. Many people believe the language represents a de facto delivery obligation, with the upper basin required to send 75 million acre-feet over 10 years to the lower basin. 

This delivery obligation interpretation favors the lower basin and the non-depletion obligation interpretation favors the upper basin. It’s important because whether the upper basin violates the compact, which would trigger mandatory cutbacks, may hinge on this interpretation.

Also, presumably in an effort to communicate the state’s positions going into the post-2026 negotiations — while presenting it as the Law of the River 101 — representatives from the Colorado Attorney General’s office made an appearance at the Colorado Basin Roundtable meeting in July and pushed the non-depletion point of view as the law of the land. While seeing it as a non-depletion obligation is a very good political messaging strategy for the upper basin, it is in fact an unsettled legal argument. 

Another wrinkle in the non-depletion vs. delivery obligation debate is climate change. Scientists have found that Colorado River flows have declined nearly 20% from the 20th century average and that higher temperatures are responsible for about one-third of that. The compact clearly says that the states of the upper division will not cause flows to be depleted, but what if it’s not the states’ water use (which remains well below their 7.5 million acre-feet per year allocation), but climate change that causes flows to be depleted? Would that still be considered a compact violation? Colorado River expert and author Eric Kuhn has been asking this question for years, but he isn’t ready to test it. 

“Will it survive legal scrutiny? I’m not sure I would want to be the attorney that leads with that argument,” he said.

The #Runoff | Big #water year begins to fade away — @AspenJournalism #ColoradoRiver #COriver #aridification

Colorado Drought Monitor map August 8, 2023.

Click the link to read the article on the Aspen Journalism website (Heather Sackett):

As water year 2023 wraps up, water managers are coming off a high, with the Colorado River crisis temporarily warded off thanks to a record-breaking snow year. But the basin may already be slipping back into conditions reminiscent of 2019, another big snow year that was followed by dry conditions, which set the basin up for a disastrous 2020 and 2021. Despite a few afternoon rain (and hail) storms, the monsoon in western Colorado has not set up with any consistency; aside from a few north-facing gullies, the snow has all melted in the high country; and abnormally dry and moderate drought conditions have crept back into southwestern Colorado, according to the U.S. Drought Monitor. Not to mention that in terms of global average temperature, it was the hottest July ever recorded. Next year’s conditions depend not solely on snowpack, but on what the rest of this summer and fall bring, and water managers are eagerly watching the forecasts.

2023 #COleg: #Water-short cities in the West want to use every last drop, even when it comes from sewage — KUNC #reuse

Graphic by Chas Chamberlin, Source: Western Resource Advocates

Click the link to read the article on the KUNC website (Alex Hager). Here’s an excerpt:

In the Western U.S., there’s more demand for water than there is supply, particularly in the Colorado River basin. While the region’s policy makers are mired in standoff about how to fix that imbalance at a broad level, cities with finite water supplies are finding creative new ways to stretch out the water they already have. In some places, that means cleaning up sewage and putting it right back in the pipes that flow to homes and businesses. In January, Colorado passed a new law with regulations for cities that want to take advantage of direct potable reuse. The rules set standards for water quality and require cities to do public outreach about the filtration process. Arizona, Texas, Florida, and California have published guidelines for the technology, but Colorado is the first state to implement a set of mandatory rules. The process is expensive, and the new standards are stringent. But for growing cities with limited water, the opportunity to squeeze every last drop out of that finite supply is an attractive proposition…

Designers of the state’s new regulations for water reuse said the high cost of equipment was part of the reason they issued the rules in the first place.

“The treatment required to do direct potable reuse is expensive enough that they need to understand where the goalposts are going to be so [municipal leaders] can put it in their long range budget and make it economically viable,” said Tyson Ingels, lead drinking water engineer for the Colorado Department of Public Health and Environment.

Ingels said there aren’t any Colorado cities currently using direct potable reuse, but there could be “anywhere from three to several dozen” with water recycling systems down the road. Castle Rock, for one, plans to get a system online in 3-5 years. Before Colorado passed new reuse guidelines in January, state law divided all drinking water sources into two categories – groundwater and surface water – each with its own set of standards for making water safe to drink. The new rules add a third source, “treated wastewater.” That new category has to go through extra treatment and filtration steps before it’s considered safe for consumption.

Biden-Harris Administration Announces $50 Million to Enhance Key #Water Infrastructure in the Upper #ColoradoRiver Basin Through President’s Investing in America Agenda: Historic investments are helping to protect and sustain the #COriver System #aridification

The downstream face of Glen Canyon Dam, which forms Lake Powell, America’s second-largest water reservoir. Water is released from the reservoir through a hydropower generation system at the base of the dam. Photo by Brian Richter

Click the link to read the release on the Department of Interior website:


WASHINGTON — The Department of the Interior today announced $50 million over the next five years to improve key water infrastructure and enhance drought-related data collection across the Upper Colorado River Basin. The Bureau of Reclamation is making an initial $8.7 million investment in fiscal year 2023 to support drought mitigation efforts in Colorado, New Mexico, Utah and Wyoming that will help ensure compliance with interstate water compact obligations, maintain the ability to generate hydropower at Glen Canyon Dam, and minimize adverse effects to resources and infrastructure in the Upper Basin.

President Biden’s Investing in America agenda represent the largest investment in climate resilience in the nation’s history and is providing much-needed resources to enhance Western communities’ resilience to drought and climate change, including protecting the short- and long-term sustainability of the Colorado River System. Through the Bipartisan Infrastructure Law, Reclamation is investing a total of $8.3 billion over five years for water infrastructure projects, including water purification and reuse, water storage and conveyance, desalination and dam safety. The Inflation Reduction Act is investing an additional $4.6 billion to address the historic drought. Today’s announcement is one of the many historic investments the Biden-Harris administration is implementing as part of an all-of-government effort to make the Colorado River Basin and all the communities that rely on it more resilient to climate change, including the ongoing drought in the West.

“The Biden-Harris administration is committed to bringing every tool and every resource to bear to as we work with states, Tribes, and communities throughout the West to find long-term solutions in the face of climate change and the sustained drought it is creating,” said Deputy Secretary Tommy Beaudreau. “As we look toward the next decade of Colorado River guidelines and strategies, we are simultaneously making smart investments now that will make our path forward stronger and more sustainable.”

“Resources from President Biden’s Investing in America agenda are allowing us to meet a number of program needs across the Colorado River System, including expanding the Basin’s existing network of instrumentation to improve water accounting, weather predicting and monitoring,” said Reclamation Commissioner Camille Calimlim Touton. “Today’s funding will enhance critical data and empower us with the best-available science and technology to more accurately measure the Upper Basin’s consumptive water use.”

The initial $8.7 million announced today will purchase and place 12 new eddy covariance stations. Reclamation will locate the stations throughout the basin to measure evapotranspiration, a key measurement for determining consumptive water use. There are currently four of these stations in the Upper Basin, one placed in each of the Upper Basin states. Reclamation and the Upper Basin states, along with other partners, studied evapotranspiration in the Upper Basin from 2018 through 2020. The data that was collected and analyzed provided critical insight and demonstrated the need and value of expanding the data gathering ability.

This funding helps further Drought Contingency Planning activities in the Upper Colorado River Basin and is consistent with the obligations of the Secretary under the Colorado River Drought Contingency Plan Authorization Act (P.L. 116-14) and related agreements.

To date, the Interior Department has announced the following investments for Colorado River Basin states, which will yield hundreds of thousands of acre-feet of water savings each year once these projects are complete:

Upper Colorado River basins. (The border of Wyoming and Colorado is mislabeled.) (U.S. BOR)