BIDEN BATTLES THE WESTERN STATES OVER WATER USAGE AND THE COLORADO RIVER

A row of boat docks at Topock66 Marina, located on the Colorado River and off historic Route 66, is surrounded by mud in Topock, Ariz., December 31, 2022. (RJ Sangosti/MediaNews Group/The Denver Post via Getty Images)S

• from: The National Review By JIM GERAGHTY

January 27, 2023 10:05 AM On the menu today: A deep dive into how the Biden administration is about to get into a messy fight with seven Western states about water usage from the Colorado River. The West’s two-decade drought is severe, and the current winter rains and snowfall are only mitigating the consequences slightly. The water level in reservoirs such as Lake Powell and Lake Mead are getting so low, hydroelectric plants may no longer be able to work normally. It all adds up to the federal government attempting to enact severe restrictions on water usage — and each state contending that it’s getting the short end of the stick. RICH LOWRY Biden Clashes with the West

Back in July, National Review ran a fascinating cover piece by Shawn Regan, “Running Dry in the American West.” You’ve probably heard that the seven Western states dependent upon the Colorado River for water, and most of the Western half of the country is experiencing a brutal, ongoing, multi-year drought — 23 years, in the assessment of the U.S. Department of the Interior. Less snow falling in the Rocky Mountains means less snowpack melting, and that means less water flowing down the river to the states. The two largest reservoirs in the United States, Lake Powell and Lake Mead, are at historically low levels. You’ve probably heard that this is a vivid demonstration of the challenges of climate change. And if you live in some other part of the country, you’ve likely heard that there’s been a lot of fighting and finger-pointing about all of this. The Colorado River may well be the most regulated river in the world, as it is managed and operated under numerous compacts, federal laws, court decisions and decrees, contracts, and regulatory guidelines collectively known as the “Law of the River” that determines how much water each state and the country of Mexico are entitled to before the river empties into the the Gulf of California. Every faction in every state can make a strong argument about why they need that water, from agriculture to residents to businesses. Now push is coming to shove. This winter’s rains and snow have improved conditions a bit, but “long-term drought persists across much of the West,” according to the U.S. Drought Monitor. Lake Powell must be at 3,490 feet to keep hydroelectric plants running. As of yesterday, it was at 3,523 feet. The lake is down about nine feet from a year ago and is about 80 percent below the lake’s historical average for this time of year. Lake Mead, which fuels the Hoover Dam, has improved a little this month, but is still significantly lower than levels for most of the past two years. Lake Mead must be at 950 feet for the Hoover Dam to operate; this morning the water level is at 1,046 feet. Remember, the water supply in the form of rain and snowpack melt comes in winter and spring, but the water demand in the form of people using the water continues year-round. However bad things look now, they’re going to look worse in summer. Since taking office, the Biden administration has called upon the seven Western states — the “upper basin” states of Colorado, New Mexico, Utah, and Wyoming, and the “lower basin” states of Arizona, California, and Nevada — to figure out how to dramatically reduce their water usage. And the Biden team expects significant cuts; in a June Senate hearing, Camille Calimlin Touton, the commissioner of the Department of the Interior’s Bureau of Reclamation, said, “In the Colorado River Basin, more conservation and demand management are needed in addition to the actions already underway. Between 2 and 4 million acre feet of additional conservation is needed just to protect critical elevations in 2023.” In an ominous warning to the states, she added, “It is in our authorities to act unilaterally to protect the system, and we will protect the system.” An acre-foot of water is enough water to cover an acre of land in a foot of water; the New York Times helpfully explains that’s roughly as much water as two typical households use in a year. For perspective, under the current laws, California is entitled to 4.4 million acre-feet of Colorado River water each year. In other words, the Department of the Interior wants those seven states to figure out a way to collectively eliminate the demand for the equivalent of anywhere from half to almost all of the Colorado River water used by the state of California in one year. Unsurprisingly, the efforts to build consensus aren’t going well. Last month, the Colorado Water Users Association met in Las Vegas. Denver Post columnist Conrad Swanson dryly — no pun intended — observed, “Water managers, politicians, scientists and business officials hashed and rehashed what most of them already knew. With the receptions, raffles and wine tastings throughout Caesar’s Palace, the occasion drew at least a few comparisons of the Roman emperor Nero fiddling while Rome burned.” Representatives of the states are meeting again in Denver this weekend, but no one is particularly optimistic that a deal will be reached. The deadline for those seven states to reach their own plan to reduce water usage is Tuesday, January 31. The upper-basin states argue that they shouldn’t be expected to make further cuts because they’re using a much smaller portion of the supply. Nevada contends that it can’t be expected to reduce demand any further, because under the “Law of the River,” it gets just 300,000 acre-feet of water a year. But it’s a similar story in the lower-basin states. California farmers argue that they’ve already maximized how much water they can save, and the only remaining option is to leave farmland fallow. Back in October, the Biden administration announced the creation of a new “Lower Colorado River Basin System Conservation and Efficiency Program,” funded with an initial allocation through the Inflation Reduction Act. The plan is to pay farmers, cities, and indigenous tribes for drawing less water from the Colorado River. The problem is that paying people not to use as much water is either a temporary solution — at some point, that farmer is going to want to start using that field again — or this move is setting up a new permanent spending program. It’s also akin to those Department of Agriculture programs that pay farmers not to grow crops — which, by the way, the Biden administration has expanded in the name of fighting climate change. (It’s also fair to ask whether it’s a good idea to pay to reduce food production during an ongoing global hunger crisis, exacerbated by the Russian invasion of Ukraine.) Perhaps what was most useful and insightful about Regan’s cover piece was how he laid out how bad, confusing, and counterproductive regulations are a big part of the problem. In some cases, institutions are effectively punishing those who make responsible choices to reduce water usage: Unfortunately, Western water laws can discourage conservation and limit the flexibility to move water to higher-valued uses. In many cases, legal rules can discourage or prevent water-right holders from leasing or selling their conserved water. To encourage greater adaptation, water policies should allow someone who needs water to pay another user to forgo water use or to invest in water conservation. But, in reality, a variety of procedural and regulatory requirements can thwart even the most sensible win–win water trades. Part of the challenge is that, under the prior-appropriation doctrine, the status of conserved water is often unclear. “If a water user adopts more efficient practices that result in unused water, certain interpretations of the ‘beneficial-use’ requirement could cause that user to lose that portion of their water right,” Bryan Leonard, a natural-resource economist at Arizona State University, said in an interview. In some states, farmers who take steps to save water — perhaps by updating an irrigation system or lining leaky ditches — risk forfeiting the unused amount. “Use it or lose it” rules can also make it difficult to lease or acquire water for nonuse purposes, such as boosting in-stream flows for fish and wildlife habitat. . . . In practice, these rules create significant obstacles to moving water to where it’s most needed. They can also discourage simple, short-term exchanges that have potentially big water-saving benefits. For example, an alfalfa farmer may agree to forgo irrigation in a dry year to send water to a nearby city, or an environmental group may lease agricultural water during low-flow periods to protect vulnerable fish populations. According to Mammoth Water, a company that facilitates water trades, short-term-lease approvals can often take a year or more — sometimes longer than the proposed lease is for, defeating the whole purpose of the exchange. . . . Reducing barriers to water trading would enable the West to better adapt to water shortages while also addressing concerns about the environment. A 2018 report published by the Property and Environment Research Center and the R Street Institute offered several reform ideas, including allowing users to keep or sell unused water, eliminating restrictions on changing the use of water, expediting short-term lease approvals, and recognizing aquifer storage as a valid water use. In California, for example, recharging depleted groundwater aquifers is not considered a “beneficial use” and therefore is not a legally valid use of water rights. The Biden administration might get better results if it tried to establish a streamlined water-trading market, allowing companies, farmers, and communities to effectively buy and sell water — rewarding those who can figure out how to reduce demand while allowing those who need more to get more. As the New York Times notes, the current circumstances are putting the Biden administration and the states of California and Arizona on a three-way collision course: California has senior water rights to Arizona, which means that Arizona’s supply should be cut before California is forced to take reductions, according to JB Hamby, vice president of the Imperial Irrigation District and chairman of the Colorado River Board of California, which is negotiating for the state. . . . Still, Mr. Hamby conceded that significantly reducing the water supply for large urban populations in Arizona would be “a little tricky.” California has offered to cut its use of Colorado River water by as much as 400,000 acre-feet — up to one-fifth of the cuts that the Biden administration has sought. (Actually, that’s one-fifth of the minimum of that “between 2 and 4 million acre feet” that the commissioner said.) If the administration wants to impose deeper cuts on California, he said, it’s welcome to try: “Reclamation can do whatever Reclamation wants,” Mr. Hamby said. “The question is, will it withstand legal challenge?” If the states and the administration get into a protracted legal fight . . . what happens in the meantime to the river water levels? The Times also notes that if the Biden administration tries to push through deep cuts in Arizona’s water supply, it is likely to encounter a major political headache with historical implications: There are other arguments in Arizona’s favor. About half of the water delivered through the Central Arizona Project goes to Native American tribes — including those in the Gila River Indian Community, which is entitled to 311,800 acre-feet per year. The United States can’t cut off that water, said Governor Stephen Roe Lewis of the Gila River Indian Community. “That would be a rejection of the trust obligation that the federal government has for our water.” I’m sure the Biden administration will just love hearing the accusation that they, the U.S. government, are once again breaking a promise to a Native American tribe — in a swing state that Biden won in 2020 by three-tenths of one percentage point.