WRESTLING FOR RESOURCES
Western and Great Plains states continue to fight for water rights as they enter year seven of drought.
CAROLYN JOHNSEN
Mark Twain often is credited with the adage: "In the West, whiskey is for drinking; water is for fighting over."
Almost daily, newspaper headlines in the American West describe conflicts over water, pitting farmers, cities, wildlife, power companies and recreation advocates against each other - both within states and between states.
Water has always been a precious commodity in Nebraska, but drought has made Nebraskans even more aware that this limited resource can't survive unrestricted pumping and diversion for irrigating crops, drinking, flushing toilets and watering lawns.
And yet, the riches of the Ogallala, or High Plains, Aquifer allow Nebraska's cities to draw water from nearby rather than piping it hundreds of miles as do many communities in the West. Even in drought, hydroelectricity helps to light Nebraska homes and power irrigation pumps. Despite the drought, irrigation enables Nebraska farmers to produce bumper crops, including 10 percent of the nation's corn.
But in Nebraska, as in most Western and Great Plains states, drought has stepped up competition for the resource. Drought has increased legal saber-rattling among states in the Missouri River Basin. Drought has reduced the electrical output of hydroplants on the Platte and the Missouri. Tension between Nebraska and Kansas rises and falls with the level of water in the Republican River. But much of the attention to water in Nebraska focuses on the Platte River and its major related aquifer - the Ogallala.
In Nebraska's growing awareness that water in the Platte River Basin is a limited resource, the state shares much with other, drier Western states. All are deeply engaged in the longstanding debate over how to divide the available water among the competing demands of growth, agriculture, recreation and wildlife.
"The drought's not here to stay, but the fact is we don't have any room for additional (water) development once the drought's gone," said Roger Patterson, former director of the Nebraska Department of Natural Resources. "And that's pretty common in most of the basins in the Western states. There are very few basins in the West where there remains unappropriated water. For the most part, it's committed."
Many rivers in the West are committed beyond their ability to deliver. So litigation abounds. Squeezed between the zeal for continued growth and the reality of limited water, the seven states in the Colorado River Compact build up big war chests for potential interstate legal battles to protect thirsty cities like Phoenix, Los Angeles and Las Vegas.
Pat Mulroy manages the Las Vegas Valley Water District, which supplies Colorado River water to one of the fastest growing urban areas of the arid West. In April 2004, in a speech at the annual water conference at the University of Nebraska-Lincoln, Mulroy said, "The days of plenty are over. The days of limited resources are here." Water conservation has become a priority for Las Vegas as it has for other cities of the West - even as they look for new sources of water to meet the demands of growing populations.
At that same UNL water conference, Matt Jenkins, who reports on water issues for High Country News, said, "Growth is the third rail" that no one in the West touches when talking about how to conserve water.
Rather than limiting growth as a way to sustain their water supply, many Western cities join the clamor for water. In Arizona, homebuilders are required to guarantee a 100-year water supply for each new home built in the developments sprawling across the desert around Phoenix. Patterson said Phoenix and Las Vegas are good examples of cities that have continued to grow even though all the water within their reach has been committed.
"They do it by finding a way to acquire water that is being used by someone else," Patterson said. "That means water markets develop and water transfer schemes get put in place."
In Nebraska, water isn't yet for sale on the open market. Here, population pressures are less apparent - even in the most heavily populated eastern counties.
"Nebraska's population, for the most part, is in the wettest part of the state where there is adequate water for growth and to meet needs," Patterson said.
But west of Lincoln, agriculture's demand for water puts farmers at odds with advocates for cities, recreation and wildlife - a fact of life in much of the arid West.
Like other Western states, Nebraska allocates water from rivers and streams - surface water - using a doctrine called "first in time, first in right," meaning, essentially, that whoever used water first in the past still has first rights to it. But in many places, that old doctrine is on shaky ground because of a growing belief that surface water and groundwater are connected. That is, aquifers feed rivers and streams, which in turn replenish aquifers.
This connection is fundamental to Nebraska's new water law, LB962, which Patterson helped write. Now a consultant working on numerous water issues in other states, Patterson said LB962 "has been held up as a model of how to manage large groundwater aquifers."
Patterson said other states also admire Nebraska's unique method of managing groundwater - a task allocated to the elected boards of 23 natural resources districts organized by river basins.
Don Blankenau, a Lincoln lawyer who specializes in water law, said, "We're ahead of all the other states, except maybe Colorado, on surface-water management and in pretty good shape on groundwater management." He represents a group of natural resources districts, cities and individuals threatening to sue the Nebraska Department of Natural Resources over a decision restricting water development that Patterson made just before he left office last fall.
In the past, blood has been shed over water in the West; now lawsuits and threats of lawsuits abound.
Endangered or threatened wildlife are at the center of much litigation. In the Texas Hill Country, an environmental group has sued to protect an endangered salamander by preserving springs fed by the Edwards Aquifer. In New Mexico, a lawsuit pits the needs of farmers and cities against the silvery minnow, which environmentalists say needs the water of the San Juan and Chama rivers. In California, environmentalists claim federal water projects have failed to maintain the salmon population in the San Joaquin River. A 17-year-old lawsuit in that matter was scheduled to come to trial in February.
In Nebraska, three birds - the whooping crane, the piping plover and the interior least tern - and one fish, the pallid sturgeon, are all endangered or threatened species that rely on Platte River habitat. They easily could have become the subjects of litigation. Instead, Colorado, Wyoming, Nebraska and the U.S. Department of the Interior have worked for years to agree on how to manage the river to meet the needs of both wildlife and humans.
Details are still being worked out on the Three-State Cooperative Agreement on the Platte River, but the final plan for managing the river may be ready by late spring. For the agreement to become final, all three governors and the Interior Department will need to sign off on it. Anticipating a positive outcome to this long effort, Patterson, who helped shape the agreement, said the process "was much preferred to going off to court... That hasn't happened yet, and my guess is it probably won't."
Patricia Limerick, a historian of the environment who heads the Center of the American West in Boulder, Colo., said all this effort to provide water for wildlife is an "amazing" development.
"It's so beyond anyone's predictions that those concerns would ever rise to have power behind them," Limerick said, in an interview. Yet Limerick also said she empathizes with farmers and cities whose water allocation may be reduced to retain "in-stream flows" for wildlife.
In her book "The Legacy of Conquest," Limerick wrote, "The essential project of the American West was to exploit the available resources." Water, in particular, has been a focus of this effort. With its massive dams, hydropower projects and thousands of miles of irrigation canals and water pipelines, the West, Limerick wrote, has become a giant "plumbing" project, moving water from one spot to another. In the Platte Valley, Nebraska's share of this plumbing includes Kingsley Dam, several smaller dams to the east, thousands of groundwater wells and hundreds of miles of irrigation canals that divert water to crops in the valleys of the North Platte and Platte rivers.
But Nebraska differs from most other Western and Plains states in that it has less federal land and federally controlled water - with the exception of the Missouri River. Consequently, the federal government is less often a party to conflicts over the use of those resources in Nebraska.
Blankenau said, "In many states, the federal government is a large holder of water rights and is often the bull in the china shop and makes a lot of noise in those proceedings."
Another factor setting Nebraska apart is that the state sits on 67 percent of the massive Ogallala Aquifer - perhaps the world's largest confined aquifer.
"Our groundwater resource is much larger than any of the other states," Patterson said. "We haven't really over-developed that to the extent they have south of us in the Ogallala."
In many places in western Kansas, Oklahoma and Texas, the Ogallala has been drawn down beyond the point where farmers can economically pump it to irrigate their crops. That's the case in much of the Texas Panhandle, where thirsty cities are eyeing what remains of the Ogallala.
"We're looking at all sources of groundwater and surface water that are within economic reach," said Calvin Finch, director of conservation for the San Antonio Water System, at an Austin, Texas, meeting with environmental reporters in September 2005.
To accommodate San Antonio, Dallas and other Texas cities that are looking for water beyond their local rivers and aquifers, oil millionaire T. Boone Pickens has proposed a $1.8 billion, 171-mile pipeline to move water from the Panhandle to cities.
At that same Austin meeting, Molly Cagle - an attorney representing Pickens' company, Mesa Water - called the Ogallala "a bucket waiting to be tapped."
Responding to a suggestion that Pickens plans to mine the aquifer, Cagle replied, "We mine aquifers. This is what mankind does. There are socio-economic effects of NOT meeting the needs." She said 25 percent of the state's population lives in the Dallas-Fort Worth metroplex, and it needs water. Acknowledging that the Ogallala is a finite resource, Cagle wouldn't say how far away Pickens would go for water once the aquifer is depleted in the Texas Panhandle.
Max Shumake, who ranches in northeast Texas, called the plan "socio-economic genocide" but admitted that many Panhandle farmers and ranchers would make more money selling their water to Pickens than they can make raising cattle or corn.
In the West, there are many precedents for moving water hundreds of miles to metropolitan areas. Although the U.S. Supreme Court has ruled that inter-state transfers of water are legal, proposals to move water from the Ogallala outside or within the state haven't gotten far in Nebraska. Such schemes are costly, but Nebraskans also are protective of their water.
In the late 1990s, when a Denver entrepreneur proposed shipping Ogallala water by rail from the Sandhills to the front range of the Rocky Mountains, the Nebraska Legislature quickly responded with a law that made it harder for him to do so. Last spring, a group of irrigators in southwest Nebraska proposed drilling 550 wells in the aquifer to fill Lake McConaughy and provide water to the Platte and Republican river basins. So far, that proposal has gone nowhere.
Most Western and Plains states consider groundwater a public resource and give landowners certain rights to use it. Nebraska is the only state where local natural resources districts manage groundwater within their respective river basins. And Nebraska is the only state that uses the "correlative rights" doctrine, meaning landowners can't pump so much water that they deplete their neighbors' wells.
Texas is the only state where groundwater law is based upon the concept of "right of capture." That is, landowners are free to pump as much groundwater as they like, in spite of effects on neighbors' wells.
In "Cadillac Desert," the seminal book on water in the West, Marc Reisner wrote, "In the West, lack of water is the central fact of existence, and a whole culture and set of values have grown up around it. In the East, to 'waste' water is to consume it needlessly or excessively. In the West, to waste water is not to consume it - to let it flow unimpeded and undiverted down rivers... To easterners, 'conservation' of water usually means protecting rivers from development; in the West, it means building dams."
Western states willingly accepted the big federal water projects of the last century and the federal money that paid for those projects. Now the states struggle to agree on how to manage the water. As a matter of policy, the Western Governors' Association - representing three territories and 18 Western states, including Nebraska - prefers that the states settle their own differences.
Craig Bell, executive director of the Western States Water Council - an arm of the WGA - said, "Generally the states like to see if they can resolve these issues among themselves, and the federal government becomes an avenue of last resort."
But drought has forced the WGA's members to take the "last resort." For several years, the WGA has asked Congress to pass a "drought preparedness bill" that would require the state and federal government to prepare for drought rather than merely respond to it. The preparations would involve forecasting drought; helping farmers, ranchers, cities and tribes assess their risk; and devising ways to conserve water ahead of drought.
But most of all, the bill asks for federal money.
Bell said the federal government should pay for losses because of drought across the nation.
"The bill would align the federal government with its responsibilities for drought mitigation and relief in the same way the federal government has responsibility for flood relief, so we think there's a good argument to be made that drought is similar and should be treated appropriately," Bell said.
Bell isn't optimistic that the bill will pass any time soon.
"I think there's a perception that the drought is over, and it's hard to get a fire underneath Congress under those circumstances," Bell said.
Blankenau, who is involved in water litigation over the Colorado River, said of the Western governors, "They want the federal dollars but not the federal management, and I think that's true of water. I regularly tell states they have to not be greedy."
