As demand and prices for Colorado water rise, state lawmakers are concerned that Wall Street investment firms and even local finance groups may seek to circumvent state laws designed to prevent water profiteering.
Last month, the Colorado Legislature’s Interim Water Resources Review Committee initially approved a bill authorizing a study to determine whether the state’s anti-speculation laws, already considered among the strongest in the West, need to be further strengthened.
“The reason I drafted it is because I’m hearing stories from the West Slope and the San Luis Valley of outside groups coming in and buying water rights. While we’re not entirely sure if this is speculation, some of these companies are more like financial and hedge fund institutions instead of agricultural interests. That seems to have the color of water speculation,” said Sen. Kerry Donovan, a Democrat who represents several West Slope counties and who is chair of the interim committee. (Editor’s note: Sen. Donovan sits on the board of Water Education Colorado, which sponsors Fresh Water News.)
Under Colorado law, water is considered a public resource, but the legal right to take it and use it toward some beneficial purpose must be approved in water court. Once obtained, water rights are considered a private property right, one that can be bought and sold as long as water courts approve the transaction.
Water has always been a scarce resource in Colorado and in the 1800s, as miners and farmers were moving in, the courts developed a system so that no one could hoard water and profit from its sale. To combat the problem, they required that water rights be granted only to those who could put them to beneficial use, whether in farm fields or mines, or in people’s homes and businesses.
The anti-speculation laws have been challenged and upheld many times in water court, leading several water experts to question the need to amend them.
Dave Taussig, a Denver water attorney, said he was surprised to see lawmakers move in this direction.
“This is one of the few areas of Colorado [water] law that is pretty well defined and established,” Taussig said. “I don’t see the need for this.”
For many transactions, as long as the water is being put to use, the deal is not considered speculative.
On the West Slope for instance, New York City-based Water Asset Management has purchased ranches with valuable, senior water rights. Right now, the company continues to operate the farms and the water is still being used as it had been before the purchase, so it is not considered speculative. That’s because, under existing law, there is nothing to prevent someone from buying water rights with an eye toward a future sale, where the interim use is just a placeholder.
Water Asset Management could not be reached for comment. But its website spells out a clear investment strategy that includes acquiring Western farm water and holding onto it until it appreciates in value, at which point it could be leased or sold for a profit.
Closer to home, Denver-based Renewable Water Resources has assembled an investment group which intends to purchase farm water in the San Luis Valley and pipe it to the Front Range.
Sean Tonner, a principal in RWR, said the proposal isn’t a buy-low, sell-high proposition because his company is offering $2,500 to $2,800 an acre-foot for the farm water, which normally sells locally for much less, around $65 to $200 an acre-foot, according to San Luis Valley water officials.
Tonner declined to provide a sales price, but Front Range developers routinely pay $20,000 an acre-foot and more for water.
RWR has not yet identified an end-user for the project, but has committed to do so before it seeks approval from state water court.
“Colorado has great anti-speculation laws. If there is a way to make them stronger, I’m all for it,” Tonner said. “But I would disagree with the assertion that what we’re doing is buy-low, sell-high.”
Still lawmakers are concerned. Sen. Don Coram, R-Montrose, is also on the interim water committee and said the state needs to be vigilant about how its agricultural water rights are being bought and sold.
“Yes we do have strong anti-speculation laws,” Coram said, “but hedge funds also have very good attorneys. There are ways to work around [the laws].”
According to the initial bill draft, the Colorado Department of Natural Resources would form a work group next year to examine what the state can do to ensure its market-based water management system isn’t manipulated by moneyed interests. The bill directs the group to report back to lawmakers in August of 2021.
The committee will vote Oct. 24 on whether the bill should advance further. If approved, it will be introduced during the regular session that opens Jan. 8, 2020.
Donovan is hopeful the process will uncover new tools, even beyond the anti-speculation laws, to help the state prevent profiteering.
“Water speculation is something we need to ensure we have a firm grip on as a state. I expect there will be a lot of conversations in upcoming years about how we make sure that water isn’t exploited and doesn’t become a way for people to make a quick dollar,” Donovan said.
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at firstname.lastname@example.org or @jerd_smith.
From the Water Education Foundation (Gary Pitzer):
WESTERN WATER NOTEBOOK: A UC BERKELEY SYMPOSIUM EXPLORES APPROACHES AND CHALLENGES TO MANAGED AQUIFER RECHARGE AROUND THE WEST
To survive the next drought and meet the looming demands of the state’s groundwater sustainability law, California is going to have to put more water back in the ground. But as other Western states have found, recharging overpumped aquifers is no easy task.
Successfully recharging aquifers could bring multiple benefits for farms and wildlife and help restore the vital interconnection between groundwater and rivers or streams. As local areas around California draft their groundwater sustainability plans, though, landowners in the hardest hit regions of the state know they will have to reduce pumping to address the chronic overdraft in which millions of acre-feet more are withdrawn than are naturally recharged.
It’s not a new problem, but one that is emblematic of California’s long-standing separation of surface water and groundwater in its management oversight. Some say it’s a problem the state should have been working on long ago as other states around the West have done.
“We are so far behind everybody else,” said Felicia Marcus, former chair of the State Water Resources Control Board. “As we get to the point where managed aquifer recharge is the obvious answer to a regular person, a regular person would assume we’re already doing this.”
Until the passage of the Sustainable Groundwater Management Act (SGMA) in 2014, there was no statewide governance regulating groundwater pumping. California was the last state in the West to address its groundwater crisis with regulation.
Landowners could take as much as they wanted, if it was put to a beneficial use. In good times, with stable imported water deliveries and relatively healthy aquifers, pumping is not a problem. But decades of overdraft have put a significant dent in parts of the San Joaquin Valley. The land surface has literally sunk in certain areas because of the large-scale pumping of water. Finally, in 2014, lawmakers sought to put the brakes on the problem with SGMA. Sustainability plans required under SGMA for the most overdrafted areas are due in January 2020.
Heavily opposed during its introduction and still facing resistance today, SGMA emphasizes a ground-up approach that requires local leaders to devise the means to bring the most severely depleted aquifers into balance in the next 20 years.
One way to do that is by managed aquifer recharge, or MAR. Surface water or flows from storm-swollen rivers are steered onto land where the water percolates into the ground. It is a straightforward process that works within the right parameters, experts say.
On average, aquifers provide about 40 percent of the water used by California’s farms and cities in a normal rain year, and significantly more in dry years. There’s a growing recognition that surface water and groundwater are connected: Surface waters gain volume from the inflow of groundwater through the streambed. That volume is lost when groundwater pumping rates exceed natural recharge.
Managed aquifer recharge projects strive to replicate the natural process in which winter rains soak into the ground and replenish water above and below ground. However, projects require extensive monitoring and management to be successful. Farmers for years inadvertently recharged their aquifers through flood irrigation of certain crops and orchards. If they’re asked to act intentionally to recharge, they want assurances they can reap the benefit.
“If we put water in, we want to retain the right to take it out,” Don Cameron, vice president and general manager of Terranova Ranch, 25 miles southwest of Fresno, said at the Berkeley symposium. Terranova has been a leader in using winter runoff to flood its fields for groundwater recharge. “To me that’s the incentive for a grower to do groundwater recharge. I want water security just as much as anyone else does.”
In the West, managed aquifer recharge projects in Colorado, Idaho and Washington state are looking to boost depleted aquifers while at the same time strengthening streamflow and benefiting the environment. “Any time you have more water in the river, it’s good for everyone,” said Jennifer Johnson, hydrologic engineer with the U.S. Bureau of Reclamation’s Pacific Northwest Region’s Water Management Group, which is working to replenish aquifers in the Yakima River Valley in south central Washington.
Leaving Water in the Ground
In California, every drop of surface water is accounted for, even the bonus flows that come during very wet years.
In the strict, defined world of the state’s water rights, quantity, beneficial use and avoiding wasteful use is paramount. Beneficial use means exactly that. It’s the water people use at home each day, the irrigation that raises crops and the hydroelectric power so crucial as a renewable energy source.
It’s also the water that pulses through major waterways, keeping fish like salmon alive and healthy as they migrate to and from the ocean.
While helpful, the act of storing water to recharge aquifers is not a designated beneficial use, according to the State Water Board. Obtaining a water right to divert water to underground storage means identifying the eventual beneficial use of that water, the board says. That could include uses that allow for water to remain in the aquifer, such as to prevent land subsidence.
That process is not as difficult as it sounds because a wide interpretation exists for beneficial uses, especially as it relates to avoiding some of the undesirable results identified in SGMA.
Managed aquifer recharge and groundwater banking are essentially the same practice with different outcomes. Managed aquifer recharge boosts overall health of aquifers and nearby rivers and streams. In some instances, some of the water can be pumped back up. In groundwater banking, water is intentionally injected or percolated strictly for later withdrawal. Groundwater banks such as those in the southern San Joaquin Valley store vast quantities of imported water that faraway partners use through a complicated exchange process.
The key is having the available water to get into the ground — not always an easy task. “We’ve had two very wet years recently, but in most years, we don’t really have excess surface flows that can be recharged to groundwater, at least not in significant amounts,” said Dave Owen, professor at UC Hastings College of the Law. “And even when we do have flood flows, they aren’t always in the places that most need” the water.
Incremental Implementation – Colorado and Idaho
Managed aquifer recharge is instrumental in preserving the health of the South Platte River in northeastern Colorado, where groundwater pumping has been depleting flows in the river. There, well owners have been paying taxes and annual assessments since 1973, in part to construct groundwater recharge sites.
In 2006, due to a drought and changing legal parameters, the annual assessments were increased 400 percent and about $100 million of bonds have been approved since then by voters. Some of those funds were used to construct recharge projects, said Cech with Metropolitan State University in Denver.
In Idaho, about a third of the state’s economy relies on the agricultural products from the region known as the Eastern Snake River Plain Aquifer in southern Idaho. A decade ago, with the water table dropping, lawmakers saw the coming crisis and adopted a comprehensive water management plan for the area.
“The declining spring river flows as a result of the declining aquifer would have resulted in curtailing most of the groundwater users in the area,” said Wesley Hipke, recharge program manager with the Idaho Department of Water Resources. “This would not only have affected agriculture, but also the cities and towns and related industries that are currently in place.”
Idaho decided to tackle managed aquifer recharge from a state perspective because of the scale of the project (10,000 square miles), the aversion to a new tax and the realization that the cost of doing nothing was not acceptable, Hipke said.
“Obviously without a stable water supply, the prospect of future growth is slim,” he said.
The state’s plan outlined the means to manage overall water demand while increasing aquifer recharge and reducing withdrawals. Grabbing as much natural flow as possible, the plan’s aim is to reach 250,000 acre-feet of annual recharge by 2024.
Challenges and Potential for MAR in California
As vital as groundwater is to California’s water supply, the extent of expanded managed aquifer recharge remains to be seen. Aquifers are recharged naturally every time it rains and snows, but carefully managed recharge is happening on a limited basis.
“There’s no question it can expand. The question is by how much,” said Owen with UC Hastings.
In its review of groundwater recharge, the Public Policy Institute of California noted in September that a key challenge is inadequate conveyance for moving storm flows to suitable recharge locations. There is “significant potential” to increase MAR on farmland if local agencies adopt better incentive systems and water accounting, PPIC wrote.
Getting water in and out of aquifers using MAR is a big challenge, from an infrastructure standpoint of getting the water when it’s available and moving it to where it can sink into the ground, Owen said in an interview. In addition, there’s not a perfect accounting process for tracking those water molecules. Even in cases where groundwater is being banked, getting the water back out that someone has put in can be complicated in aquifers with “unrestrained, poorly regulated” pumping.
“If you put water into a bank, you may have a legal right to withdraw it,” Owen said, “but that legal right does you no good if someone else has pumped out the physical water.”
Reach Gary Pitzer: email@example.com, Twitter: @gary_wef
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Advocates are looking for new ways to combat this problem. On February 26, 2019, Toledo citizens passed the Lake Erie Bill of Rights, which gives the lake the right to “exist, flourish, and naturally evolve” and awards citizens the right to a “clean and healthy environment.” They join a growing movement – referred to as “Rights of Nature” – providing legal personhood to natural entities.
In theory, this action could make it possible to hold corporations and governments liable for polluting the lake. But while the concept is finding support abroad, it faces hurdles in the U.S. The Lake Erie law was immediately challenged in court by an Ohio farm and has yet to take effect.
My work focuses on international and comparative law related to environmental justice and human rights. I recently spent time in New Zealand researching the impacts of a 2017 law giving the Whanganui River its own legal identity. What I saw there convinced me that providing legal standing to a natural entity is a viable method of environmental protection. In my view, however, the processes that advocates use to enact Rights of Nature law critically influence whether these efforts will succeed.
A new conservation strategy
Rights of Nature laws generally are designed to improve environmental protection and encourage people to rethink their relationship to the environment. Instead of viewing nature as a commodity that exists for humans to use, and abuse, these statutes consider nature as important for its own sake.
Measures awarding legal status to nature have been adopted in Ecuador, Bolivia, Colombia, New Zealand and Bangladesh, and by several Native American nations, including the Ho Chunk and White Earth. Other efforts are underway across the country, including in Oklahoma and Oregon.
The Lake Erie Bill of Rights is the latest phase of citizen-led efforts to address chronic nutrient pollution and the resulting dangerous algae blooms. In 2018 Toledoans for Safe Water collected enough signatures for the Lake Erie Bill of Rights to appear on the ballot.
How effective are Rights of Nature laws elsewhere? One of the most detailed examples is the 2017 Whanganui River Settlement Agreement, which resulted from years of negotiations between the Maori and New Zealand’s government. Known by its Maori name, Te Awa Tupua, it recognizes legal personhood for the Whanganui, the country’s third-longest river.
The Whanganui has been an important source of food and transportation for centuries, and has great spiritual importance for the Maori, who view it as a living being. Te Awa Tupua recognizes that the river possesses all the “rights, powers, duties, and liabilities of a legal person.” The Whanganui is represented by two Guardians, known as Te Pou Tupua, who are jointly appointed by the national government and local Maori.
Under the law, any activity that might affect the river must go through a consultation process and receive approval from Te Pou Tupua. One early test occurred in March 2019, when construction of a new bike bridge over the river was halted so that the required consultations could take place. Bigger issues will arise in the future, particularly in regards to renewal of concessions for energy companies diverting portions of the river for power generation.
(The local Maori tribe of Whanganui fought for recognition of their river as an ancestor for 140 years.)
Lake Erie and the law
Unlike Te Awa Tupua, the Lake Erie law does not include much detail regarding its requirements or specific mechanisms to guide implementation. Ultimately courts may strike the measure down based on these omissions and potential conflicts with state and federal regulations.
Lake Erie is governed by treaty law between the U.S. and Canada, so the Drewes Farm lawsuit asserts that the Bill of Rights infringes upon U.S. government authority. Similarly, because the lake touches four U.S. states, the lawsuit argues that any new law related to Lake Erie should be adopted by states, not individual cities.
Drewes Farm also claims that the Bill of Rights violates its 14th Amendment rights to equal protection, since the law mentions only corporations and governments, and conflicts with Fifth Amendment prohibitions on law that is too vague.
But I believe that it is still worth trying, and that passage of the Lake Erie Bill of Rights is significant, even if it is ultimately struck down. Widespread coverage of the issue has already increased awareness of the idea of legal personhood for nature in the U.S.
I see learning from the negotiation and implementation of more developed Rights of Nature laws like Te Awa Tupua as the next step. As measures like this become more common, a new view of our relationship to nature may develop. I expect that recognizing the legal standing of natural entities will become a significant legal tool in the fight for better environmental protections, including addressing toxic algae blooms in Lake Erie.
In July 2019, a severe bloom of blue-green algae began spreading across the western half of Lake Erie. The dominant organism—a Microcystis cyanobacteria—produces the toxin microcystin, which can cause liver damage, numbness, dizziness, and vomiting. On July 29, the National Oceanic Atmospheric Administration (NOAA) reported unsafe toxin concentrations in Lake Erie and have since advised people (and their pets) to stay away from areas where scum is forming on the water surface.
This image shows the bloom on July 30, 2019, as observed by the Operational Land Imager on the Landsat 8 satellite. Green patches show where the bloom was most dense and where toxicity levels were unsafe for recreational activities. Around the time of this image, the bloom covered about 300 square miles of Lake Erie’s surface, according to news reports; by August 13, the algae had spread across 620 square miles.
While blooms in Lake Erie are a regular occurrence in the summer, NOAA researchers forecasted that 2019 could bring some of the most abundant blooms in recent years.
Bloom conditions this year were influenced by calm winds and rainfall. Calm winds in July allowed algal toxins to accumulate at the surface (instead of being dispersed). Strong winds in August have since mixed some surface algae to deeper depths. Heavy rains carry excess nutrients (often fertilizer) from farms into the lake. However, such nutrient runoff may have been less than anticipated this year because heavy spring rains and flooding prevented many farmers from planting crops.
NOAA researchers will continue to monitor the bloom, producing weekly bulletins of the location and concentration of algae growth and predictions about where it is headed. The team integrates several data sets, including NASA’s MODIS-derived cyanobacteria index, NOAA water temperature measurements, and wind conditions. NOAA will also collect and process water samples with an unmanned underwater vehicle.
The public can stay informed about harmful algal blooms using a new mobile app that sends alerts when harmful algal bloom may be forming. The app relies on satellite observations of changes in the color of the water.
One day in mid-July , Colorado state engineer Kevin Rein stood before a packed room of farmers and ranchers and admitted that he might be forced to ruin their lives. Rein, a middle-aged man with wavy gray hair, spoke in the measured tones of a technocrat, but his message was dire: If the valley’s residents cannot figure out how to sustainably manage their water use, the state would do it for them. And though he stressed, time and again, his office’s dedication to working with them, and though he praised their efforts, his goodwill fell flat in the hot, poorly ventilated room, where more than 120 people were crammed, worried about their future.
For most of the 20th century, water use in this southern Colorado basin outstripped water supply. The people of the valley came up with an uncommon solution to this not-uncommon problem: an experiment in communal water management. And what they’ve found is that self-governance is hard. Rein not only has the authority, but a legal mandate, to end this experiment if its failure becomes assured. If or when it becomes clear that the San Luis Valley’s water system cannot reach a sustainable level by the year 2031, then, yes, he said, his office would shut off irrigation for a substantial part of the area. That would mean no water for many fields, which could mean foreclosures, bankruptcies and family farms sold.
The stifling room went silent for a full 10 seconds. When the questions resumed, they came without outrage. Rein was not the villain. Most people present must have known that, in the end, they themselves represented both the cause of the problem and its only possible solution.
THE SAN LUIS VALLEY is a high-mountain desert ringed by the Southern Rockies and blessed with unusual water resources. From its headwaters in the San Juan Mountains, the Rio Grande traces southeast down to the valley floor, beneath which lie two enormous stores of water, one just belowground, the other deeper and enclosed by clay. The river and these aquifers sustain more than 1,500 farms and ranches — and the towns that rely on them — in harsh conditions generally inhospitable to agriculture. Center, a small town with a predictable location relative to the rest of the valley, registers some of Colorado’s coldest temperatures and lowest rainfall. Farming at almost 8,000 feet means long winters and a three-month growing season, accompanied by regular dry spells and occasional July killing frosts. But the sandy soil and near-constant sun are great for potatoes, making the valley the nation’s second-largest producer of “fresh” spuds — as in produce found in a store, not French fries. Other crops include barley, which often goes to the Coors Brewing Company, and alfalfa.
When morning comes to the valley, the Sangre de Cristo (“Blood of Christ”) Mountains earn their name, burning blood-red as the sun summits the sawtooth peaks. On high, snowpack endures for most of the year, watched daily by the farmers below, whose yearly water supply depends on the runoff. A drought that began in 2002 and continues today — recent rainfall notwithstanding — made the valley’s water deficit even more acute. In response to this new aridity, the people of the valley sought authority to regulate their own water use, which the state granted in 2004. In 2012, local governing bodies made up of water users across the valley began to tax commercial irrigation, replace water removed from rivers and streams, and pay farmers to fallow their land.
Western water wonks mostly view this attempt at self-management with hope, as a possible model for other communities facing water crises. But on the ground in the valley, the situation is grim. Last year, the snowpack was low and little rain fell; the Rio Grande’s flow in 2018 was one of the lowest ever recorded. The U.S. Department of Agriculture designated the valley a drought disaster area. With little surface water, farmers had to rely on water pumped from belowground, wiping out years of steady accretion to the shallower, or unconfined, aquifer. Last year’s dry spell put the valley back where it started: about 800,000 acre-feet below the aquifer’s legally mandated recovery level. Seven years gone and no net gains. In December, Rein sent the valley a warning letter. If, he wrote, it is “undeniable that the sustainability goals” will not be met by the 2031 deadline, irrigation shutdowns would follow. Rein would repeat this message in July. This threat now haunts thousands of water users, an ever-present doom on the horizon.
DROUGHTS BELONG TO THE CHAOTIC FORCES OF CLIMATE, and markets to invisible hands. But the San Luis Valley’s experiment in self-governance means that its agricultural producers control their own fate. Among them is Kyler Brown, who farms barley and potatoes a few miles north of Monte Vista. On a windy, warm day, Brown drove me through his family fields. The farm belongs to his father-in-law; Brown married into the valley. He is 36, tall and sturdy, and sports a black beard and a wide-brimmed hat. Brown laughs often in loud bursts and treats the valley’s struggles to moderate water use with a black humor. To him, the valley is suffering from old habits that die hard.
“It hasn’t led to violence yet,” he said with a grin, as the truck bounced down a two-wheel dirt track. The San Luis Valley is occasionally called “the Kumbaya basin” for its collaborative spirit, but Brown dislikes this description. For decades, the locals lived beyond nature’s limits. Now, water is scarce.
It was late March, and the snow still sat heavy on the surrounding peaks. The irrigation ditch adjoining the fields was overgrown with weeds. Soon, the scrub would be burned clean, the gates connecting Brown’s fields to the Rio Grande Canal open, and his water allotment flowing. Brown steered with one square tanned hand and gestured with the other. If the valley’s farms and ranches, its towns and economies, are to survive, he said, their relationship to water must change, and yet Brown does not think the local governance system, as it stands now, is up to the challenge. “People thought the (water management system) was the miracle, that was the amazing thing,” he said. But implementing the system, forming committees and boards, that’s the easy part, Brown went on. Changing how people act, that’s the real work.
This is especially true when water suddenly appears plentiful, as it did this spring. As if in response to Rein’s letter, southwestern Colorado had one of its snowiest winters in decades. In the mountains above the valley, the season-to-date snowpack average stayed above 300% for most of the spring. The Rio Grande, snow-fed, ran fast and full across the heart of the valley. Grazing meadows flooded in places. Ditches and canals, the vascular system that carries the lifeblood of the valley, filled.
This, then, was the challenge the valley faced, after the disastrous drought and Rein’s letter: 2019’s abundant water, set against 2018’s drought, offered yet another test of the farmers’ habits. Could they use the welcome, unexpected snowpack to refill the aquifers? This is a hard ask: Last year’s drought strained farmers financially. This year, the resource is plentiful.
Brown wants to take on this clash between individual and communal interest. Over the winter, he proposed a “consensus-building” plan to the local water management authority — something that would bring farmers, ranchers and community members together to build agreement on a few key conservation points. As Brown sees it, the people of the valley need to accept that the problem is not principally, or only, water scarcity. People’s water habits, the crops they grow, the decisions they make on the farm: All of these need to be held up and examined under the new arid realities.
“Everyone needs to think every time they turn on a pump,” he said.
Brown took me to a small meadow near the Rio Grande, where he runs a few dozen cattle on the cottonwood flats. The river was full to its banks, running dark and cold. Seeing so much water makes scarcity hard to imagine. It’s easy to think that way when the river is full.
Perhaps that’s been the problem all along. The valley’s system of water rights dates back to the 1850s, following the Mexican-American War. The Rio Grande supported the area’s early farms and ranches. Acequias, community water channels, shared the resource at the valley’s southern end. Founded in 1852, the San Luis People’s Ditch in Culebra Creek is the oldest continuously used water right in the state. These waterways created thousands of acres of marshy terrain in the low country, grown over with stands of cottonwood and willow that shaded native wildflowers. By 1900, the entire flow of the Rio Grande was allocated via surface water rights.
After World War II, electrification enabled farmers to pump water from wells tapped deep into the aquifers. By the second half of the 20th century, surface-water users had to curb irrigation, thanks to river compacts formed with downstream states. Well users faced no such restrictions. They pumped away, which impacted stream flows, since ground- and surface water interact. For a time, this was not a problem; there was enough water to go around for both surface and groundwater users. (In fact, the water table was so high that valley houses built in the early 20th century don’t have basements.)
The development of center-pivot sprinklers in the 1970s brought big changes, expanding agricultural capacity by allowing more efficient irrigation, no matter what the river was doing. Water use and farm size increased. Before this pumping technology, fields were flooded from the irrigation ditches, and the runoff helped replenish groundwater. But now, the combination of pumps and sprinklers drained the groundwater without replenishing it. Few questioned what this technology allowed. The water table dropped, and the rivers and creeks thinned. The pheasants that once thrived in the thickets and woodlands disappeared.
TODAY, MORE THAN 14,000 PERMITTED WELLS puncture the valley floor. On a map, they appear as a tightly packed confederation of crop circles, laid out like thousands of green sundials set against the dusty waste of the desert. Many of these wells pump within the valley’s first water management “subdistrict,” which began the experiment in self-governance eight years ago. Two more subdistricts became active this year, on May 1. If all goes according to plan, there will be seven of these, distinguished by differences in geography and hydrology.
The actual work of shared governance takes place through the taxpayer-funded Rio Grande Water Conservation District, which includes the subdistricts. In practice, this involves committee meetings, lots of them. Each subdistrict’s board is made up of water users — farmers and ranchers. (Board members are mostly, but not uniformly, older, white and male. The valley is not — about half the population is Hispanic or Latino.) The meetings take place in a drab, reddish stucco building outside Alamosa. Committee members show up in stiff jeans, flannel shirts and seed caps that are removed for the Pledge of Allegiance, which begins each meeting, revealing pale foreheads above weather-beaten faces. The audience resembles the boards. Most people seem to know each other. Before an April session, I heard a farmer in a hat that proclaimed “compost done right” confide to the man next to him that “we’re going to be doing more quinoa this year, for sure.”
The meetings themselves tend to be dry affairs. In April, Subdistrict 2 board members went page-by-page through the annual water plan, discussed a few water leases, and solemnly approved a $78.22 refund to a ranch for a water fee overcharge. Someone cracked a joke about “counting every penny.” But these sessions, however mundane, are where the water management work gets done, amid a patchwork of interests, values and preoccupations.
Cattle ranchers sit next to barley and alfalfa producers. Big operators who own thousands of acres farmed with the newest in GPS-driven tractor technology rub shoulders with smallholders who supplement their agricultural income with a second job in one of the scattered towns. Some have water wells and some have river rights, and many have both. There are disagreements and digressions, punishingly long budget sessions, personal gripes, and episodic displays of resourcefulness and democratic good sense. In the middle of all this is Cleave Simpson, the water district manager, a fourth-generation farmer who tends about 800 acres of hay. Tall, thick-shouldered with sun-narrowed eyes, Simpson has a remarkable ability to explain water policy minutiae in clear, everyday language. People remark on his steady presence and decent conduct in an uncertain time. Even people who disagree with him tell me this.
Simpson believes that the valley can fix its water imbalance, but he admits the difficulty. Cutting water use is unpleasant, he told me, “but we can either wait on Mother Nature — or we can give it a shot ourselves.”
For eight years, the first subdistrict has given it a shot, and the results are uneven. Farmers within its borders must comply with the subdistrict’s water plan or get their own through state water court. Some early resistance aside, most chose the first option. Subdistrict 1 has several tools at hand to curb pumping. The primary one is a fee on pumped water; the current rate is $90 per acre-foot. Those with excess water can sell it to those who want more, via a credit system. There is also a program that pays farmers to take land out of production. About 10,000 acres of farmland have been retired this way, only about a quarter of the expected figure by this point.
Though the system is complicated, the aquifer is not. The aquifer responds to two things: recharge from the surface and reduced pumping. The effects are so obvious that locals sometimes refer to the aquifer as “the bathtub.” The amount of surface recharge each year is limited, so replenishing the aquifer effectively means less groundwater pumping for irrigation. That’s the hard part.
Subdistrict 1 sits atop the unconfined aquifer, so in many ways it is the most important. Many of the largest and most lucrative farms are here, in the heart of the valley. The subdistrict stops just before the Rio Grande to the south and stretches into the valley’s northern reaches, where smaller farms and ranches sit amid the sage and chico brush. Most of the farmers here grow barley, alfalfa or potatoes. Almost all of them rely on wells that pump from the aquifer. When Rein threatened a pumping shut-off, he was referring to Subdistrict 1’s more than 3,000 wells.
Rein’s letter woke people up, said Erin Nissen, who plants potatoes and barley with her father, Lyle, outside the small town of Mosca. At a special meeting after the letter ran in the local paper, several dozen people were expected to show. Hundreds came, filling the room and spilling out the door. “The letter was good,” she told me over the phone. “Scary, but good. There was talk from the beginning: ‘Oh, it’s fine, they won’t come and shut off the wells.’ ”
People are realizing now that the state might, indeed, shut off the wells. Part of the problem, according to Nissen, is an inability to require water-use cutbacks. When the subdistrict system was formed after the 2002 drought — the mention of which still makes valley farmers shiver — the architects thought market mechanisms would be enough, given commodity prices, and the hydraulic and climactic data available.
While sound at the time, this model could not account for the realities of a changing climate, and the subdistrict has proven unable to discourage enough farmers from pumping. “There’s a really sad mindset of, ‘I can pay for it, so it’s my neighbor’s problem,’ ” Nissen said.
IN PRACTICE, THE SUBDISTRICT’S POLICIES cannot account for the valley’s unequal water distribution. Farmers with good surface water rights take what they need from the river and sell the extra as credits, while wealthier farmers and operations owned by corporations and other outside entities pay the pumping fee and buy up credits. In both cases, there is no behavior change. Hiking the pumping fee will eventually hurt large water users, but it would also devastate small, poorer farms and ranches. It doesn’t take much to break them. For some, the cost is already too high.
That was the case for Dale Bartee’s neighbors, in the northern part of Subdistrict 1 near Center. In the past few years, he said, three locally owned farms nearby sold, in part due to the ever-rising pumping fee, with most of the land going to out-of-state investment firms.
“We used to see all our neighbors on the road, and we’d stop and visit with them,” he said. “Not anymore; now, it’s just haul by and never see them.
“It’s really hurt this area,” he added, sitting at his kitchen table in mid-August. He and his 8-year-old son, Kolby, had been out in the fields, and Bartee made sure Kolby washed his hands and arms before sitting down to talk. A laconic man with a horseshoe mustache, Bartee is the fourth generation of his family to work the farm and hopes to make it five. He runs a cow-calf herd, puts up hay and grows small grains. Kolby and his brother run a herd of 57 sheep. Bartee’s operation has middling surface rights, so he does all he can to limit pumping costs.
All summer, farmers discussed a pumping fee increase as if it were a certainty. They were right. At a budget meeting in late August, Subdistrict 1’s board confirmed a $150-acre-foot rate for next year’s irrigation season. In the public comment period, many argued that the fee would drive farmers from the land. Others said an increase was the only choice, given the aquifer’s level. Several board members spoke about the rate hike as a grim necessity. To Bartee, the new fee means that “the big guys and the ones with the surface credits are just going to get bigger.”
The other subdistricts seem to have learned a few things. LeRoy Salazar, the president of Subdistrict 3 near the Conejos River, which flows wide and shallow down from the San Juan Mountains and east across the valley’s southern end, said that his board can mandate water use restrictions during a dry spell. Simpson agrees, but obtaining this capacity for Subdistrict 1 would require an arduous return to water court. A small farmer himself, Simpson said that a $150-acre-foot fee could make his operation untenable.
Without enforcement authority, Subdistrict 1 has minimal tools besides higher taxes to restrain pumping or manage competition between members. As Brown sees it, this sustains incentive structures that are geared toward use, not conservation and replenishment. “I have a decreed right to that water on paper, and I’m going to pump as much as I can, for as long as I can.”
The instinct is understandable. Most farmers operate on tight financial margins and will pump all they can to bring their crops to market. But when it comes to creating a sustainable system for the valley as a whole, these private instincts run afoul of public considerations.
By April, as snowmelt accelerated on the peaks and farmers prepared to plant potatoes, Brown was already souring on the prospects for his consensus-building plan, proposed to address the public-private push-and-pull. The response, he said at the time, had been pretty quiet. At an April presentation of the proposal by one of Brown’s friends, the skepticism was tangible. Brown said he understands public hesitation. The community has already tightened its belt, but it has not been enough. He likened the water challenge to a family budget.
“Every family has a hard time living within its means,” he said. “Not because there aren’t externalities, like going to the emergency room or no Christmas bonus. But it’s about behavior.”
IF THE VALLEY IS TO MEET WATER DEMANDS, inherited habits from wetter times will need to change. Right now, for example, many farmers pump to their legal limit, whether or not the crops need water. In a year like 2018, when the rivers and ditches ran low, heavy well pumping is the only option for many. And in a wet year, the economics of farming and the demands of thirsty crops like alfalfa and wheat prevail. If the water is there, alfalfa will keep drinking. Of the crops that grow in the valley, alfalfa uses the most water per acre. It is also extremely lucrative: The valley exports bales by the truckload to dairies and stockyards all over the West, and in a good year like this one, a farmer can get three cuttings.
In Subdistrict 1, it falls to the ranchers and farmers themselves to break these inherited habits. On the ground, this looks something like what Erin Nissen is up to. Nissen, who is in her late 20s, grew up on her family’s farm. She has a calm demeanor, a direct gaze and innovative ideas on how to manage water use.
Her family operation consists of 11 fields, with each 120-acre section divided into 40-acre plots. Each plot is farmed independently, with crops that rotate each year. They currently grow 240 acres of potatoes and 60 acres of barley. Other fields are planted with cover crops, which are chopped up and turned back into the soil. Also in the rotation are fields of sorghum-sudangrass that are grazed by cattle, fertilizing the fields and thereby reducing the need for chemical inputs. All of this is done with an eye towards building up organic material and promoting healthier, more resilient soil, which acts as a sponge and better retains water. Once rare in the valley, crop rotation has become more common, its benefits for the soil now widely recognized.
For irrigation, Nissen uses evaporation models to predict the precise amount of water her crops will need. If the afternoon turns cloudy, for instance, she’ll reduce irrigation by a few percent. Even the sprinklers have been modified — anything to shave water use down to the minimum. Newly installed nozzles spray water in droplets, like rain. Older models distribute a mist that is more likely to blow away. Nissen has also reduced the total number of acres she cultivates and voluntarily limits her pumping.
Many farmers use some of these techniques, but few use them all. It can be hard to introduce crop rotations, let alone a full switch to less thirsty crops like quinoa and hemp. Habits are durable things, especially successful ones. Barley and potatoes, planted on the same fields every year — and irrigated in the same ways — have made and sustained many livelihoods in the valley.
I asked Nissen why she has introduced so many changes, and her first answer was: necessity. The family has lower-priority surface water rights, so they depend on taxed water that is pumped from belowground. Cutbacks save money, and healthier soil means higher crop yields. But Nissen also called it an ethical move. Like so many young people who grow up on farms, she went away for college, graduating from Texas Tech University with a degree in agricultural and applied economics. After graduating, she returned, the fourth generation of her family on the farm. It’s not just any future she wants for the valley, but this one, where family farms of moderate size endure, where children work the same land their parents and grandparents tilled. Attaining that future, though, Nissen said, demands that she change her farm’s water habits. “It’s important that farmers cut back for the good of the valley,” she said.
THIS COMMUNAL VIEW was what Brown wanted to encourage with the consensus-building plan, breaking away from the system that brought on the current water crisis. In early June, the Subdistrict 1 board gave the proposal a muted response. For now, the idea has little life.
Like Nissen, Brown’s ultimate hope is for people to face up to the conditions at hand and then consider what sort of future they want for the valley, before it’s too late. For both of them, the point of the subdistrict system, this experiment in self-governance, is not simply to guarantee the valley’s economic future, but, crucially, to sustain a certain sort of life on the land and the communities this life supports. “If we want as many people, as many families, working the land as possible, that’s a value we need to be working towards,” Brown said.
Even while family farms and smaller operations endure in the San Luis Valley, many people describe a trend towards consolidation — larger farms growing at the expense of smaller operations, while outside dollars buy up land as investments or tax write-offs. Department of Agriculture census records show an increase in the number of large, rich farms in recent decades.
Some of the valley’s larger operations, such as North Star Farm, which is owned by a California-based trust, and Natural Prairie from Texas, are backed by outside money, as are many of the new hemp operations. Without the strong community ties and commitment to family farms that have inspired Nissen to overhaul her farming practices and conserve water, these deep-pocketed operations have little reason to limit their water use beyond the legal mandate.
The San Luis Valley depends on agriculture. Along any of the valley’s highways, most of the storefronts and signs advertise this dependence, from engine shops and welders, to potato warehouses and irrigation engineers, to the shiny new combines that crouch in waiting along the bar ditch. People, too, rely on agriculture. Farm dollars fund a public school system and several hospitals. Monte Vista has more than a dozen churches. Alamosa boasts a small university, Adams State, which offers an agriculture degree tailored to local students.
There is a divide between the valley’s majority-Hispanic towns and the farms that surround them, according Flora Archuleta, director of the San Luis Valley Immigrant Resource Center. “The people in control are white, the farmers,” she said. “They own the land.” Even so, she went on, Alamosa, Monte Vista and Center would likely not exist without agriculture. The resource center sits on a storefront strip down a gravel side street in Alamosa. Across the street, passenger train cars sit humped and rusting in an old railyard. The office is constantly busy — something different every day. In May, Immigration and Customs Enforcement (ICE) invaded a nearby Mexican restaurant, taking five people. Decades ago, more than 10,000 migrant workers staffed the farms each year. Some farmworkers, mainly Mexican and Guatemalan, still come up through New Mexico and Arizona for planting season, but fewer now, Archuleta said, due to the ever-increasing mechanization of industrial agriculture and tightening immigration policies over the past decade. “The valley is a farming community,” she said, “and that’s what people rely on.”
As Heather Dutton, a fifth-generation valley resident and manager of the San Luis Valley Water Conservancy District, put it, even Alamosa’s mountain-bike stores — in a town of fewer than 10,000 people — exist because there are enough people with enough money to ride on weekends. “There’s this huge chain of people who are all able to live here because of farming in one way or another,” she said, sitting in a craft beer and coffee shop in Alamosa. When we got up to leave, Dutton stopped to say hello to several diners she knew. Like her, all of them rely in some way on the success of those farms for a livelihood.
A major downturn in agriculture — whether it happens over time, due to climate change and consolidating market forces, or immediately, should the state order well closures — would hurt Alamosa and the other towns. And the valley is already struggling, despite the presence of so many large, wealthy farms. Commodity prices have not been healthy in more than a decade, and the six counties that constitute the valley are among Colorado’s poorest. Shuttered storefronts dot Alamosa’s main street. A recent casualty is a J.C. Penney, which anchored the block for more than a century. Locals took this closure particularly hard, even petitioning the company to keep the store open. Explaining the closure in a statement, the company said it is shutting locations that do not meet financial targets.
Archuleta’s family has lived in the area since before it was part of the U.S. If farming collapses, she predicts, “the valley would become a ghost town.”
IN FEBRUARY, MANY PEOPLE SPECULATED that, with a large river and some luck with snowmelt, the valley could regain what was lost last year and maybe substantially more. The first part came to pass: The Rio Grande is projected to have its highest annual flow in more than two decades. The second part did not. As of September, the aquifer had gained about 140,000 acre-feet, less than what had been lost in 2018 and not even the largest yearly recharge since 2002. The water level by summer’s end tends to be the replenishment for the year. It is enough to stay the threat of well shutdowns for now, but next year is as likely to return to drought as it is to resemble 2019. Rein’s warning endures. Did the valley take advantage of this year’s snowpack? As with most things, the result is mixed — not exactly a failure, but not all it could have been.
The valley’s people know that the subdistrict system may well fail, yet many continue to act on behalf of a project that asks them to place their trust in each other. Simpson was born here, left for the Colorado School of Mines, and spent more than a decade working as an engineer before coming back and buying a farm with his wife, Cathy, who is also a local. This tracks a pattern in Simpson’s family history; his great-grandfather was the first in the family to arrive in the valley. His grandfather left for a time, then came back, as did his father. His son, Jared, left for college. Now 27, he works the farm with his father. Simpson told me he does the often-thankless task of running the valley’s water governance system for his son. “I love agriculture,” he said. “My son loves agriculture. He has a college degree, he doesn’t have to do this. I do wonder why we keep beating our heads against the wall. But this is home.”
And if it fails, this experiment in self-governance, why should people outside the valley, beyond these homes, care? I put this question to Brown in March. We were driving out along the dirt track through the low country that cradles the river. Snow was visible high above, and spring was coming on. He thought about this for a moment. The valley’s inhabitants produce food, and their livelihood depends upon a thriving agricultural economy, he said. Most of the country does not live this way. And failure to address the water crisis would threaten this way of life, another instance of the decades-long economic abandonment of rural America. But then, after a pause, he added something more. Here in the Colorado mountains, there exists a community, one with a past full of mistakes and a future dark with uncertainty — yet a community all the same. “People who live here aren’t any more special than people anywhere else,” he said, “but they also aren’t any less special than anyone else.”
Nick Bowlin is an editorial fellow at High Country News. Email him at firstname.lastname@example.org.
From the Wyoming Water Development Commission (Anne MacKinnon) via The Rock Springs Rocket Miner:
The Wyoming Water Association is holding a conference in Casper over three days, from the afternoon of Wednesday, Oct. 16, to mid-day Friday, Oct. 18. Titled “Currents in Wyoming Water,” the conference will provide detail on an array of important water issues.
Water ties us all together – and makes us interdependent in ways we may not always recognize – as it moves through our landscape and our lives.
Towns, agriculture, power plants, oil and gas production, trona processing plants, coal mines, recreation and tourism all involve water. Sessions at this conference will introduce newcomers and update old hands on issues such as how to work with an irrigation district that has landowners with small acreage, how to get drought information, and how cities put together their water supply portfolio.
Thursday morning, there will be a panel discussing how the right to water is sometimes moved from one use to another in Wyoming – often, only temporarily, and sometimes quite informally. Many considerations are required in such a change, since other users up and down a stream could be affected. People with experience in such arrangements will lay out a variety of examples for the audience.
Agriculture uses most of the water used in Wyoming, but a good portion of the water in our streams flows to and supports people and economies in other states. That means Wyoming works with other states on the rivers we share.
Issues on the Colorado River, whose headwaters include the Green and Little Snake Rivers in Wyoming, are increasingly intriguing these days. The portion of the river in the southwestern U.S., in particularly, has seen nearly 20-year drought. Problems due to drought can ripple back up the river to headwaters states like Wyoming. Colorado River issues will get a whole afternoon of discussion on Wednesday from the Wyoming Commissioner to the Upper Colorado River Commission, former State Engineer Pat Tyrrell.
Gov. Mark Gordon will address the water issues he finds most important at a luncheon Thursday, and former Wyoming Water Development Director Mike Purcell (now a member of the Water Development Commission), will provide his long-term perspective on water at the conference banquet Thursday evening.
Friday morning will close the conference with updates by a roster of representatives from many of the agencies, state and federal, that deal with water in Wyoming: the Wyoming State Engineer’s Office, the Wyoming Water Development Office, the Wyoming Department of Environmental Quality, the Wyoming Game and Fish Department, the Wyoming Oil and Gas Commission, the Wyoming State Geologic Survey, the U.S. Bureau of Reclamation, and the U.S. Bureau of Land Management.
The conference presents a wide range of issues that will help us all understand more about water in Wyoming. Registration is available at http://www.wyomingwater.org. There’s a significant fee for the conference; lawyers and engineers who attend can get continuing education credits. College classes or individual college students can attend for free, except for meals.
For those who want to hear more detail about Colorado River issues, University of Wyoming Extension in assistance to the Wyoming State Engineer’s Office is putting on a series of free and open public meetings on evenings in early November in locations central to the various Wyoming communities that use Colorado River water. Each meeting runs from 6 to 8 pm:
— Monday, Nov. 4, Pinedale, Rendezvous Pointe Senior Center
— Tuesday, Nov. 5, Green River, Sweetwater County Library
— Wednesday, Nov. 6, Baggs, Little Snake River Conservation District Office
Anne MacKinnon is a former member of the Wyoming Water Development Commission, and an adjunct professor at the University of Wyoming where she is currently part of an extension team assisting the Wyoming State Engineer’s Office with public outreach on Colorado River issues.
Erin Light is the division engineer for the Yampa, White and North Platte River basins for the Colorado Division of Water Resources, the state agency that manages water rights. Light said she’s sent orders requiring 575 water users to install headgates and measuring devices as required by Colorado law. Most of these orders went to users in the Yampa River basin, though Light estimated about 100 of them went to users in the North Platte River basin in North Park.
In March, water rights holders received notice that they would be required to install headgates and measuring devices. Light estimated fewer than 25% of the users who received notices actually installed the required infrastructure.
Now, those water rights owners have been sent an order to install these devices by Nov. 30. After that date, they’ll be required to either have devices in place or stop using their water.
“If you choose to not divert water and say ‘Fine, I only have a headgate, I’m shutting it. Again, I’m shutting it. I’m not going to put a measuring device in.’ That’s fine, as long as you don’t divert water,” Light said. “But if you have a headgate, no measuring device and choose to divert water contrary to that order after Nov. 30, next spring, May or whenever you turn on (your water), and we see that, we’re going to shut the headgate, and if necessary, we’ll lock the headgate.”
If users break the lock or open the gate, the division could pursue enforcement actions with the Colorado Attorney General’s Office, Light said.
Without a headgate, users and engineers can’t shut off water. For users who divert water without a headgate, Light said the fine for diverting water contrary to the order is $500 each day water is flowing.
Colorado water rights are a “use-it or lose-it” commodity. If a person is not using all of their water right, they can lose part or all of their water right through the abandonment process. Every 10 years, division engineers are required to provide the water court with a list of water rights they believe are abandoned partially or entirely. Light’s office is working through this process now. A preliminary list will be published on July 1, 2020.
“We’re talking to people about the fact that their water right is being considered for abandonment, because we do have an initial list that we’ve developed,” Light said. “Our water commissioners are inspecting structures with water rights on the list and talking to water users, and there’s a lot of frustration (from users) about ‘How could my water right be on the abandonment list?’”
Light said some users don’t realize they can lose part of their water right, but statute says water rights can be abandoned “in whole or in part.”
Keeping accurate records can help. Light encourages water rights owners to track the water they’re using as her office works through the abandonment process. Light said water users should keep note when and at what flow they turn their diversions on or off, any time they adjust flows or anytime water levels in streams and ditches significantly fluctuate.
“Maybe they did divert their water right, but we never got a record of it,” she said. “We observe something less because we weren’t out there at peak flow, and if water users would provide us accurate records of their water use, it’s possible that some of these water rights wouldn’t be included on the list. … It’s really critical that people start taking on that responsibility to protect their water right and keep records. It’s critical in many instances, but one of them is abandonment.”
One proposal…a diversion to run more water to farms in the Cliff-Gila Valley, has persisted to this year, and the deadline for its review by the Bureau of Reclamation is looming. Opponents argue the diversion will reduce the Gila from a trickle to a dry streambed, as it is in Arizona, where Phoenix and Tucson siphon so much water the Gila runs dry for nearly 300 miles. But there’s staying power to the notion that with a diversion will come more opportunity, more investors, more entrepreneurs, more business — plus more security in the face of climate change.
After all, arid Western cities and towns need more water. And diversion boosters say the water can be stored and utilized without significantly compromising river ecology. Plus, once that unencumbered New Mexico Gila water crosses the state border, Arizona uses it up anyway. Might as well get your fair share.
Both sides come back to the same point: This work is about what to leave the next generation. Those fighting for a free-flowing Gila, though, are doing so, for the first time in decades, without Salmon, who died in March at age 73 after a bout of pneumonia. His death came at a moment when it seemed the combined forces of Gila advocates’ work and a shifting political climate would put an end, at last, to the battle that he fought for half a lifetime. What happens this year could secure the fate of the river as forever wild, or forever changed. It’s a choice about what the next generation will need most: more water, or more wild…
The Gila River pours from its namesake wilderness area, its path dictated by rock walls before it fans out over polished stones where the canyons relent. It threads downed trees and churns past hot springs. Nothing out here competes with the moon and stars, so the Milky Way runs its own strong current across the night sky.
Hike the surrounding plateaus covered in pine trunks blackened by wildfires and knots of pinyon and juniper, and the river is invisible. “The one thing about the Gila is that you can’t really see it until you’re on it,” said Cherie Salmon, Dutch’s widow. “Once you get down in the canyons, you get the real flavor of it, and it’s those very canyons where, if you dam a river, they’re gone.”
In 1968, the bill that authorized the Central Arizona Project, which today funnels Colorado River water to Phoenix and surrounding areas, also permitted New Mexico to pull 18,000 acre-feet of Gila water. The first proposal was the Hooker Dam, which was to sit just inside the Gila National Forest boundary and would have backed up the river into the Gila Wilderness. Conservationists were aghast at the idea of the country’s first wilderness area, set aside in 1924, being violated with a reservoir. They were offered a string of buoys across the water to mark the wilderness boundary so motorboats wouldn’t cross it. People were unappeased. The dam idea languished another 14 years, then died.
But the bill authorizing it allowed for the Hooker “or suitable alternative.” “That ‘suitable alternative’ language was really critical, and haunts us to this day,” Schulke said. Next up, in the 1980s, was the Connor Dam proposal to pour concrete 20 miles downstream, in Middle Box Canyon.
The impact of a dam can be difficult to comprehend. So while Connor was still being debated (some locals, Salmon included, spelled it “Conner”), Salmon packed up and started for the headwaters of the Gila River, beginning a 200-mile journey from its highest tributaries and ending in Arizona. At some point, he swapped his hiking boots for a canoe, and added to the load both his dog Rojo and a nameless tomcat, who’d been water-tested when Salmon plunged the cat into a reservoir and raced him back to shore…
On a Tuesday in early September, blue jeans, button-up shirts, and cowboy boots abounded at the Grant County Administration Center in Silver City. The occasion was a meeting of the New Mexico Central Arizona Project Entity, the organization working to secure the additional Gila water allocated to the state in the 1968 Central Arizona Project legislation. Two people stood for the public comment period that kicks off the meeting, both voicing objections to the money being spent on a diversion when it could be funneled to projects that improve water efficiency and conservation.
Entity chair Darr Shannon had a simple counter: “If we’re not allowed to divert some of this water, then Arizona continues to get it all, and they become wealthier and wealthier as time goes by.”
The current framework stems from the federal 2004 Arizona Water Settlements Act, which for the first time allocated money for any diversion or storage project to serve the 60,000 people in four rural counties in southwestern New Mexico. It also adjusted New Mexico’s share to 14,000 acre-feet of water (if downstream commitments to the Gila River Indian Community are met), a figure lower than the original 1968 allocation, but still a significant increase to what farmers are currently able to funnel off the river for irrigation via homemade dams. The state was promised $100 million from the federal government — two-thirds of it for water conservation projects, and one-third for the construction of a diversion.
Since New Mexico was first allocated its share of Gila water in 1968, some 900,000 acre-feet of water entitled to southwest New Mexico has run downstream to Arizona, Vance Lee, vice chair of the New Mexico Central Arizona Project Entity, told the state legislative finance committee last September.
“At a time when other regions of the state are struggling to get enough water to meet their needs and in consideration of potential future needs of water in our arid southwest corner of the state, it only takes a little common sense to realize that, if we have the available water and we have the funds to develop it, that we keep every legally available drop of water in New Mexico,” the bullet points of Lee’s comments to the state finance committee read. (Multiple members of New Mexico CAP entity, including executive director Anthony Gutierrez, declined requests for an interview.)
Roughly $14 million of the $66 million the feds initially allocated for water conservation projects has been spent on planning the diversion. If New Mexico were freed from pursuing a diversion, the rest of that money could be spent on other water conservation projects to serve broader swaths of the region, rather than just the cluster of farmers near the river. But in that case, the state would forgo the $34 million originally earmarked for diversion construction.
Per the 2004 legislation, the Bureau of Reclamation must sign off on a diversion plan by the end of 2019, but the Entity’s legal counsel, Pete Domenici, Jr. — whose father ushered the Arizona Water Settlements Act as a U.S. senator for New Mexico — has asked Reclamation for an extension. As late as July, in the midst of the environmental reviews required under the National Environmental Policy Act, the plan was still shifting, shedding storage ponds and small dams.
“My opinion is, we’ve got to have control of our own destiny, and control of the water,” said Joe Runyan, who serves on the CAP Entity and runs a farm at the end of one of the ditches the diversion would feed. Then, he said, “when we go to the table with the rest of the people on the Colorado River, we’ve got a little leverage.”
If New Mexico had access to more water, maybe that would bring growth to this sleepy valley, the thinking of diversion proponents goes. And, while the first 4,000 acre-feet diverted from the river would go to farmers, the remaining 10,000 could go to municipalities or industry.
“I just think it’s a pretty good idea,” Runyan said of the diversion. “To me it would be totally irresponsible to deny the future generation in New Mexico access to that 14,000 acre-feet.”
Look southwest from a promontory at the edge of the Mogollon Mountains, and the Gila River lays down a dense ribbon of cottonwoods, their emerald color bleeding into the surrounding irrigated fields and pastures spotted with cattle, horses, and, occasionally, goats. That shade fades out to tan hills knotted with mesquite, pinyon, and yucca topped with towering blossoms. The river supplies agricultural fields, the lifeblood for small farming communities that don’t seem to have a tighter hold on the place than by their fingernails. The towns of Cliff and Gila consist of a few loosely clustered houses, a gift shop, a post office, and a café…
I was observing this scene with Schulke and Allyson Siwik, the Gila Conservation Coalition’s executive director. The pair donned broad-brimmed hats and lightweight, pale, long-sleeved shirts — standard-issue defense against the desert sun — and narrated the landscape. On the far horizon, where the Gila River drops into the Middle Box, is where the Connor Dam would have flooded habitat for some 300 species of birds on a list of boggling biodiversity where the mountains meet desert. The ditches through the floodplain are rimmed in green, a corridor of habitat for the endangered southwestern willow flycatcher and yellow-billed cuckoo. Cuckoos spend winter in Central or South America, but have such fidelity to their nest sites that a single pair was tracked returning to the same tree by the river in repeat years. Where the river flattens and slows into riffles, loach minnow like to tuck in. The Gila trout seeks out the bubblier, faster moving sections.
“This area is the only place in the Lower Colorado River Basin that still has its full complement of native fish,” Siwik said.
Some of the river’s bends, even from miles away, are visibly dry. That’s in part because the monsoon that typically refills it in the mid-summer months has been absent, but also because of “push-up” dams farmers create by bulldozing small earthen walls in the river. The proposed diversion would replace these mud and rock dams, which the river eventually breaks down, with concrete, and take from one spot four times as much water as what’s currently withdrawn in three push-up dams. Taking more water from one place, Schulke and Siwik worry, would increase both the length of dry stretches and their duration, which could devastate aquatic and riparian species and the rest of an ecosystem that relies on flooding rivers to recharge nutrients and groundwater and sprout seeds.
Looking upstream from that same ridge, the Gila River vanishes into peaks where ponderosas shade clusters of lupine and penstemon. Up there, the Gila’s no placid irrigator — it’s a wild mountain river whose rapids form a 40-mile classic stretch of whitewater. That’s if you can catch it; some years, the river is runnable by raft, kayak, or canoe for just a few days during spring snowmelt, then maybe again in late summer or early fall if the monsoon comes. Search and rescue crews are routinely called by stranded hikers who underestimate the swiftness and depth of the water, the steepness of the cliffs around it, and the remoteness of their undertakings in a national forest that covers 3.3 million acres, 792,584 of which are federally designated wilderness…
With the canyons safe from a dam, the fight now is less about the landscape and more about the water itself. The cropland the diverted water would reach currently grows pasture grass, a low-cost, drought-tolerant, low-maintenance crop. Whether any farmers in the valley could afford to purchase water made available through the diversion, however, trends toward speculation. That’s in part because the water doesn’t come free and clear: For every acre-foot of Gila water New Mexico diverts, the state would have to pay Arizona to purchase a corresponding amount of Colorado River water.
With the water, though, might come entrepreneurs, people who want to build greenhouses and grow produce. Runyan, the farmer on the CAP Entity committee, said that among the 10 farmers on the Gila Farm Irrigation Association, he’s “heard from some members” that they would plant additional winter crops, including winter wheat, oats, peas, turnips or garlic.
But if farmers switch to high-value crops to cover the cost of more expensive water, those crops would rely on a constant supply of water, and former Interstate Stream Commission chair and career engineer Norman Gaume said that’s not a guarantee. During eight of the last 81 years, he said, there wouldn’t have been enough water in the Gila to divert. In short, he said, “the [environmental impact statement] says there’s dependable water, but there’s not.”
Climate change has already reduced winter snowpack that feeds this river, and research from the Intergovernmental Panel on Climate Change estimates that, perhaps as early as mid-century, the Gila will cease to be a snowpack-fed river.
“The desert mountain areas of the Southwest are ground zero for climate change, and the Gila is evidence of that,” said Sinjin Eberle, communications director and executive producer with American Rivers, which named the Gila the most endangered river of 2019 due to the diversion proposal. “How I think about it is, do we have to dam and divert every river that we have, and do we have to dam and divert every tributary that we have, just because it happens to be wild? … The Gila is too valuable to continue slicing away at it.”
Governor Michelle Lujan Grisham announced during her campaign last year she planned to abandon the diversion, and vetoed state funding for it. But the New Mexico Central Arizona Project Entity has enough federal funds to continue its work, and the state’s members of the Interstate Stream Commission have not yet moved to halt the diversion. If the diversion proceeds, Eberle said, it would be met with a legal challenge.
Just 37 percent of the 246 longest rivers in the world flow freely their entire length, and most of those are confined to the remote regions of the Arctic, Amazon, and Congo basins, according to research published earlier this year in Nature. Only 23 percent of those run without impediment all the way to the ocean…
In the western United States, a rare few show what a river can do when left to its own: the Yellowstone in Montana, the John Day in Oregon, all three forks of the Salmon in Idaho, and the Yampa in Colorado. The Yampa came perilously close to a dam during the 1950s. But still, on spring days after a snowy winter, you can paddle down the dam-moderated and appropriately emerald Green River into Echo Park, where the Yampa comes in strong, its surge seeming to shove the Green’s water back upstream. Progress slows to a drift as the muddy Yampa water appears like blossoms underneath the clearer Green’s flows.
What we are beginning to understand is that ecosystems work like tapestries, and that losing one river is like pulling at a thread. It can unravel the whole system, taking with it a curtain filled with birds, insects, fish, frogs, snakes, coatis, wolves, coyotes, and jaguars. That the native fish remain in the Gila river is testament to this particular weave holding, and that here, the systems still function largely as they have for thousands of years, which is rare enough to consider guarding well, or so goes the point Salmon and the advocates he mentored have long been making…
“[Aldo] Leopold,” he continued, “says wilderness is the raw material out of which we’ve hammered the artifact we call civilization, so to save a portion of that country is probably the most fundamentally conservative thing you can do. In other words, saving the Gila is a patriotic act.