Conservation Corner: Water Worries
This edition concentrates primarily on major water issues that have reached a crisis level. The background, of course, is the major, multi-year drought affecting the southwestern U.S. We know from tree-ring studies that such droughts occur periodically in our region and sometimes last for decades. This is, of course, complicated by the addition of human-caused climate change, which is projected by experts to increase the frequency and severity of such droughts.
Waters of the U.S. (WOTUS)
There have been important developments (and non-developments) at both the state and national levels on this important issue.
One of the most consequential regulatory attacks on the environment by the Trump administration was its redefinition of the “Waters of the U.S.” governing what streams and riparian environments fall under the protection of the Clean Water Act.
Prior to the Trump presidency, the rules for determining what waters were subject to Clean Water Act regulation were specified by the 2016 Rule, promulgated by the Environmental Protection Agency under the Obama administration.
Section 404 of the Clean Water Act requires a permit from the EPA/Army Corps of Engineers for any project that will discharge dredged or fill material into any waters of the United States. Under the 2016 Rule, 60% of the nation’s waterways were included as WOTUS. Virtually all of Colorado’s creeks, rivers, wetlands, riparian ecosystems, ditches, and ephemeral streams were included. The Trump-era rule excluded many of these, leaving many unprotected unless the state came up with a system to protect them itself—a monumental undertaking, which the Colorado legislature did not take on during the Trump presidency. Procrastination has consequences.
2018 proposed revised definition of ‘Waters of the United States’. Source: December 12, 2018 EPA Twitter post.
Throughout the Trump administration, a complicated jumble of legal challenges to the administration of the Clean Water Act and the definitions of WOTUS arose, involving more than half the states and many administrative bodies. The list is far too long to summarize in this issue.
Unfortunately, the Biden administration has not yet managed to complete a rulemaking effort that would reinstate the 2016 rule, and various court rulings have complicated the process further, so the EPA and Army Corps of Engineers are using a bastardized combination of rules. Projects with 404 permits issued under the Trump rules will be allowed to go ahead without more stringent examination. New applications will be subject to the rules that were extant before the 2016 rule was adopted. Applications initiated before and after an August 30, 2021 Arizona court decision vacating the Trump rule have different criteria applied.
The end result is that a number of Colorado waterways have less protection until the Biden Administration manages to adopt new rules that provide adequate protection, or the Colorado legislature passes laws that provide state-level protections. The Biden administration has begun the process of coming up with new rules, and it has also said it intends to propose a further set, so it is hard to know where we will end up. The Colorado legislature has not yet made any moves this session to provide state protections.
Colorado River Negotiations
The underlying “law of the river” was established 100 years ago by the Colorado River Compact, negotiated among the seven basin states. The errors and deficiencies of the compact have plagued us ever since:
The authors allocated much more water than exists long-term. They used a 25-year average from a gauge on the river, but we now know from tree-ring data that this was the wettest 25 years in the last 400. As a result, the negotiators assumed a regular annual flow of 18 million acre-feet (maf), though the actual annual flow is approximately 12 maf.
The states, and the Congress that approved the compact, completely ignored the water rights of Mexico and of the sovereign Native American tribes with water rights guaranteed under treaties with the U.S.
The compact tried to divide the flow equally between the upper basin (mainly Colorado, Utah, and Wyoming) and the lower basin (mainly Arizona and California). It picked a measurement point at Lee’s Ferry, just below what is now Lake Powell, in Utah and required that half of the designated flow of the river be delivered to the lower basin at that point. This effectively requires that all shortages to be absorbed by the upper basin.
The problems were compounded when Mexico’s right to water from the Colorado was recognized.
Two major dams were built by the Bureau of Reclamation, which continues to manage the two resulting storage reservoirs, Lake Powell (the upper reservoir) and Lake Mead (the lower reservoir).
The Upper and Lower Basins as described in the Colorado Compact. Source: Arizona Department of Water Resources
Since the compact, various negotiations have resulted in operating rules for the two dams and associated reservoirs. Operations are supervised by the Bureau of Reclamation. Some drought contingency plans were adopted by the states to deal with shortfalls, but we are already seeing that they are inadequate.
Currently, both Lake Powell and Lake Mead are at their lowest levels since they were created, with huge “bathtub rings” giving visual markers of past water levels. Both are in danger of dropping far enough to shut down their hydropower capacity. Annual flows of the river since 2000 have averaged 20% below those of the 20th century.
A shrinking Lake Powell. The natural-color images above were acquired in March 1999, April 2005, May 2011, and April 2021 by the Landsat 5, 7, and 8 satellites. The images capture years with the two highest and lowest levels over the past 22 years. Image from NASA Earth Observatory.
There is no question that all the users of the river are facing a major long-term problem. Currently, water managers from the basin states are renegotiating the 2007 interim guidelines that specify rules for operations. Renegotiating the 2007 guidelines is starting this year, earlier than had been planned, because of the urgency of the situation. The talks are likely to be contentious.
Boulder residents tend to think that all their water comes the snowfields and glaciers immediately above us, but half of the City of Boulder’s water is Colorado-Big Thompson water, diverted from the upper Colorado River and shipped under the continental divide through tunnels. Boulderites are among the tens of millions of people dependent on the Colorado River, and likely to be affected by problems with the Colorado River Compact.
CU South Referendum
Over 6000 Boulder citizens signed a petition to require a citizen vote on City Council’s decision to annex the CU-South property. As a result, there will be an election on the question, almost certainly on election day in November 2022. Several environmental organizations are supporting the referendum, contending that the annexation agreement is deeply flawed. Boulder County Audubon Society has not yet taken a position.