University of Colorado Law School Colorado Law Scholarly Commons Getches-Wilkinson Center for Natural Books, Reports, and Studies Resources, Energy, and the Environment 1996 Restoring the West's Waters: Opportunities for the Bureau of Reclamation, Volume I: Section One: Summary of Findings, Section Two: Case Studies Lawrence J. MacDonnell Teresa A. Rice Judith Jacobsen University of Colorado Boulder. Natural Resources Law Center Follow this and additional works at: https://scholar.law.colorado.edu/books_reports_studies Part of the Natural Resources and Conservation Commons, Water Law Commons, and the Water Resource Management Commons Citation Information Restoring the West’s Waters: Opportunities for the Bureau of Reclamation, Volume I: Section One: Summary of Findings, Section Two: Case Studies (Natural Res. Law Ctr., Univ. of Colo. Sch. of Law 1996). RESTORING THE WEST’S WATERS: OPPORTUNITIES FOR THE BUREAU OF RECLAMATION, VOLUME I: SECTION ONE: SUMMARY OF FINDINGS, SECTION TWO: CASE STUDIES (Natural Res. Law Ctr., Univ. of Colo. Sch. of Law 1996). Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School. DRAFT DATE: FEBRUARY 28, 1996 Tate: 11:40Am REOSTG W10290 7/24MEM ORNDIR. 0 MIR TR11 IB ©1 111 MON VOLUME I SECTION ONE: SUMMARY OF FINDINGS SECTION TWO: CASE STUDIES Natural Resources Law Center February 1996 locations in the basin. The legislation provides some financial incentives to encourage adoption of more efficient water use practices. While the expenditure of funds is authorized under this bill, no funds have yet been appropriated and there is some question whether they will be. The Yakima Basin is one of the most productive agricultural areas in the West. High value crops such as fruit and hops grow well in the basin. A number of small to medium- sized communities in the basin derive a significant part of their economic base from agriculture. Yet there is a sense in which irrigated agriculture in the Yakima has expanded beyond the long-term ability of the water resources of the basin to support it. Physically there is enough water to meet irrigation needs in most years, though the recent drought years bring even this assumption into question. There is not enough water for irrigation, however, if the needs of the salmon and steelhead are taken into account. Processes for voluntary marketing of water in the Yakima are extremely limited at present. The Environmental Defense Fund has developed a detailed outline of a water leasing program for the Yakima. The recently enacted congressional legislation for the Yakima Basin rel\ should provide a boost to the possibility of implementing such a program. More flexible access to the water supply in the basin is sorely needed because of the unique water allocation arrangement under which users hold either "proratable" or "nonproratable" rights. Nonproratable rights are virtually assured of a full water supply each year, while water deliveries to proratable rights vary widely depending on the amount of water available. * * * Reclamation water development in the Upper Colorado River Basin of Colorado occurred in two distinct phases." The first was in the Grand Valley where Reclamation constructed a diversion darn and canals that made possible more than a two-fold increase in irrigated acreage. The second was the construction of two projects that take water out of the Colorado River Basin, primarily for irrigation use on the Front Range of Colorado These "See "The Upper Colorado River Basin, Colorado," Vol. II, Chapter 5. 27 projects have an important effect on the flows of water in the Colorado River, though in different ways. The Grand Valley Project requires a considerable amount of water to reach the diversion point upstream of this valley on the western border of Colorado during the irrigation season. The two transmountain projects, on the other hand, reduce the amount of natural flow water that might ordinarily be in the Colorado River in the Grand Valley but include "compensatory storage" reservoirs on the West Slope to provide water needed to meet the demands of West Slope water rights, including those in the Grand Valley. The dominant water-based environmental concern in the Upper Colorado River is the effort to recover four species of native fish listed as endangered. A cooperative program, launched in 1987, seeks to improve the habitat conditions for these fishes, including their streamflow-related needs. Perhaps the best single opportunity for improving streamflows, particularly in an important segment of the Colorado River known as the 15-Mile Reach, would result from reducing irrigation diversions in the Grand Valley — both at the federal Reclamation project and by a private ditch company. Physically, as in the case of the irrigation diversions in the Snake River, there are a number of changes that could be made to the irrigation delivery systems in the Grand Valley that would reduce the total amount of water diverted without necessarily reducing the amount of water available to crops. But, as with the Snake, it is a question of who pays and who benefits. The Colorado example is interesting as well because it brings into focus the legal status of any water that would be saved from diversion. There is a basis to argue that the irrigation systems of the Grand Valley are wasteful and, as a matter of state law, the senior water rights that now permit the diversion of this water should be reduced, with the saved water simply remaining in the stream to the benefit of junior appropriators. Despite language in many Colorado court decisions declaiming the wasteful use of water, there are no reported decisions in which a water right has actually been reduced because of a finding of waste. Indeed, the standard that has emerged to this point in decisions from other states generally measures the adequacy of particular irrigation practices with reference to those commonly employed in the area under consideration — not on the basis of what is technically possible. Moreover, Colorado has adopted an "economic reach" test that appears to limit the duty to improve water use practices according to the financial 28 means of the irrigator. Given the marginal nature of irrigated agriculture in many parts of Colorado, such a standard is unlikely to require dramatic changes in existing water diversion and delivery systems. Alternatively, efforts to legislatively declare that saved water would be available for use by the owner of the water right subject to a no-injury requirement have failed in Colorado. Junior appropriators have strenuously resisted what they regard as a potential windfall to senior users who, under the proposed legislation, would have been able to sell water that they no longer needed. The result is a kind of legal standoff in which the senior Grand Valley users continue to divert large quantities of water during the irrigation season while upstream users search for opportunities to challenge (and hopefully reduce) these diversions. In fact, there appear to be sufficient potential water savings that the three primary competing interests for this water — the Grand Valley irrigators, the fish, and the upstream water users — should be able to find solutions that will serve their respective interests. * * * The North Platte River provides an interesting illustration of responses to environmental concerns at several different levels.' Like the Grand Valley in the Upper Colorado River, irrigation demands at one primary location — at the state line in Wyoming and Nebraska — dominate management of the river. Beginning in the 1960s, Reclamation started to manage the storage systems in the North Platte for fishery benefits as well as for irrigation and hydroelectric power purposes. This expansion of purposes resulted from reaction to the construction and peaking power operation of Kortes Dam, with a consequent loss of a blue ribbon trout fishery in the "Miracle uSee "Seminoe Dam to Pathfinder Dam, North Platte River, Wyoming," Vol.!, § 2, No. 2.6. 29 Mile."' Reclamation agreed to maintain a minimum 500 cfs release from Kortes in 1964, (Th and Congress made this release a statutory duty in 1971. While losses of hydroelectric power resulted, the water is captured in Pathfmder Reservoir and remains available for irrigation delivery. More recently, Reclamation installed a new outlet works at Glendo Reservoir to enable minimum releases of water during the winter months to maintain the fishery in the river between Glendo and Guernsey." Now water uses in the North Platte are under scrutiny because of environmental concerns centered several hundred miles downstream on the Platte River in Nebraska. Particularly in an area known as Big Bend, the river is habitat to a number of protected endangered species — perhaps most prominent of which is the whooping crane. The water- related needs of these species and their habitats are forcing attention to ways in which the flows of the Platte and its upstream sources, the North Platte and the South Platte, can be better managed. While Reclamation has enjoyed some success in managing the operations of its facilities to benefit fish in the North Platte, providing water for downstream needs is likely to rist\ prove more challenging. This is a situation somewhat like the Upper Snake in which the major water uses occur upstream while the major environmental needs for water are downstream. Existing irrigation water uses in the North Platte are based on traditional, low- cost, low-efficiency surface water delivery systems. From an engineering perspective, these systems could readily be made more efficient. Of course, cost is a major issue. Another consideration is that water presently diverted but not consumed returns to the river and is captured downstream in Lake McConaughy. Improvements in irrigation system efficiency could have water quality benefits, but they generally would not make much more water available in the Big Bend reach.