Brent Gardner-Smith/Aspen Journalism
ASPEN – Ranchers and farmers in western Colorado are incentivized to divert more water from the state’s streams and rivers than they need, an investigative reporter with ProPublica said at the Aspen Ideas Festival last week.
Abrahm Lustgarten, whose series “Killing the Colorado” is now being published by the nonprofit news organization, said that Western water laws “have become so antiquated that they now actually undermine conservation. They actually incentivize people to waste their water and use it in inefficient ways.”
And given the “use it or lose it” ethos that surrounds water rights, Lustgarten said that “landowners with rights wind up taking every drop that they are allowed out of the rivers, year in, year out, in order to prove up the need for their water.”
Lustgarten, who has won national awards for his environmental reporting at ProPublica, spent time with ranchers and ranch managers in the Gunnison area as part of the two years of research he put in for his stories.
Referring to Bill Ketterhagen, who runs a 750-acre ranch in the Ohio Creek valley, Lustgarten said “he and other ranchers tell me that if the law allowed them to use less water, without jeopardizing their legal rights to take it in the future, or if they could bank it — save it for a dry year — that they would.
“They could grow the same crops for the same profits, with less water. But instead, he diverts as much as he possibly can, even if it means letting the downstream streams run perfectly dry, and then pours it liberally over his own fields, basically whether he needs it or not.
“No one that I talked to harbors any illusions that this is sustainable,” Lustgarten said. “It’s a question of how many more years can the good times be strung along.”
(To listen to Lustgarten’s presentation, see the audio track below. The portion of his presentation that is quoted above begins shortly after the 20 minutes and 45 seconds mark, or at 20:45).
Set up for conflict
In “Killing the Colorado,” Lustgarten also explores cotton farming in Arizona, and how it is subsidized by the federal government, and how a huge coal-fired plant near Page burns coal to pump water through Arizona.
He also tells how the Colorado River has been shaped by the Colorado Compact of 1922, and how it overestimated the river’s annual flow, and thus the amount of water to be shared by seven states, including Colorado.
“The entire premise of the water supply for 40 million Americans amounts to wishful thinking,” Lustgarten said.
That point is also frequently made by filmmaker and photographer Peter McBride, who grew up in the Roaring Fork River Valley and since 2009 has been telling vivid stories about the challenges facing the Colorado River, and its dried-up delta.
“Part of the problem is that in 1922 they thought the river flowed at a higher rate than it does historically,” McBride said during an individual presentation at the Ideas Fest on Monday. “They called it a large soda, and we now realize it is a medium soda. But the compact agreement is based on a large soda. And all the straws are still in that, even though it is a medium. So we’ve totally bypassed the production of the river.”
During a following panel discussion on drought, McBride said the Colorado River consistently is last in line for its own water.
“Who is going to shoulder the deficit?” McBride asked. “Is it going to be ag? Are municipalities going to become more efficient? Or is it going to be the river? Often, in more cases than not, the river loses.
“Most people, from my experience, they like the thought of a river,” said McBride, who was just back from rowing the Colorado through the Grand Canyon. “But when push comes to shove, and when it comes down to having a pool or not, or a golf course or not, or a tap or not, they vote tap. They vote pool. So as we are struggling to figure out this water shortage, often times the river will continue to lose.”
Ag. v. city v. river
Lustgarten and other panelists at the Ideas Fest pointed out that the primary competing interests for Colorado River water are agriculture, cities and what’s left of the river’s ecosystem.
“The consensus that I hear is that inevitably the most give will come from agriculture, like it or not, because that’s where the most water is,” Lustgarten said. “And there is huge opportunity for very a small-percentage efficiency gain to translate to a volume of water that is very meaningful to a lot of the cities.”
Lustgarten also said that “cities will bring money, agriculture will eventually bring water. But the law is on agriculture’s side. And if there is anything that is political an untouchable, especially in the West, it is private property rights, and that’s how water is seen.”
Buzz Thompson, a professor of natural resources law at Stanford University, made a similar point about the West’s “first-in-time, first-in-right” system of water law during Monday’s panel on drought.
“There have been a variety of suggestions recently to try replace the prior appropriations system with a totally different system of water allocation,” Thompson said. “It would take at least a century or two, however, to get through the politics of actually doing that. And furthermore you have a problem with the United States Constitution and those state constitutions that protect private property.”
Both of the water panels at the Ideas Fest discussed the lack of transparency and accountability when it comes to the ownership and use of water in Western states.
“There are variety of states in the United States that still are not absolutely sure exactly how much water they have and who is using it,” Thompson said. “In California, we have this very complex water system, and the truth of the matter is we don’t actually know exactly how much water a variety of water rights owners are entitled to.”
Patricia Mulroy, who ran the Southern Nevada Water Authority from 1993 to 2014 and is now at the Brookings Institution, sat on Monday’s panel and said the last 20 years have brought about an evolution in water policy.
She said the big players in the broader Colorado River community are now working together to preserve the existing water supply system in the face of drought, climate change and a growing population.
Mulroy said the new consensus is, “Let us conserve both with ag and with urban before the system crashes. And let us use urban dollars to effectuate conservation measures both in the urban areas and in the agriculture areas.”
“Because here’s the reality,” Mulroy said, pointing to the current record-low levels of water in Lake Mead. “All those lovely paper water rights that we have spent millions paying our lawyers to protect become absolutely useless at some point. It doesn’t matter whether you are the holder of the most senior Colorado River water right given to you by the Supreme Court. Nature doesn’t really give a tinker’s damn.”
Saving water to grow?
But Thompson, the law professor from Stanford, warned that too often conservation gains are then used to provide water for new development.
“Frequently we are using that conversation to permit expanded growth,” Thompson said. “ And so then what happens is that the next time we have a drought, we’ve already used up that conservation, and it becomes even more difficult to withstand that particular drought.
“At some point,” Thompson said, “we have to realize there is a limited capacity for increased population in the Western United States, and recognize what John Wesley Powell did, which is that we have to link our land use planning with our water resources.”
Editor’s note: Aspen Journalism, the Glenwood Springs Post Independent and The Aspen Times are collaborating on coverage of rivers and water. The Post published this story online on July 4, 2015.