5. WATER: Reclamation to crack down on illegal wells along Colorado River (Land Letter, 07/31/2008)

April Reese, Land Letter Western reporter

As the Southwest adjusts to a drier, more water-frugal existence, the Bureau of Reclamation is cracking down on unauthorized wells siphoning Colorado River water.

The Bureau of Reclamation, which oversees water allocations from the river, unveiled a new proposal last week that will make sure well owners along the river in the three lower basin states -- Arizona, California and Nevada -- hold legal "entitlements" to the water they are using.

Landowners have the right under state laws to pump groundwater, but under federal law, they must receive approval to draw water, either directly from the river or from its subsurface flow, along the last 688 miles of the Colorado River.

The lower Colorado River. Courtesy of the Bureau of Reclamation.

But over the years, new homes have been built in the river's floodplain, along with new domestic wells to provide those homes with water. Since there is no notification system in place to alert well users of federal requirements for the Colorado, many well owners are unwittingly using the river's water illegally.

"I don't think most well users know they're using Colorado River water," said Bob Walsh, a spokesman for the Bureau of Reclamation's lower Colorado office. "It's perfectly conceivable to me that someone could move onto a piece of property and someone could sink a well and not know that that's Colorado River water, and not know there was a requirement for a contract with the secretary of the Interior to use the water. This whole project is to bring that use into compliance with the law."

Although the agency is still crunching the numbers on how much water the wells use, early estimates indicate that unauthorized wells now siphon 9,000 to 15,000 acre-feet of water each year from the lower Colorado River, primarily through pumping in the river's floodplain. That is enough to supply a city of about 50,000 people for a year.

Every drop is important

With the basin in an eight-year drought -- the worst in 100 years -- and climate change increasingly shrinking water supplies, the agency needs to take action to ensure every last drop is accounted for in the fast-growing basin, Reclamation officials said.

"If someone is using Colorado River water without an entitlement, that harms the entitlement holders in Arizona, California and Nevada who do have one, so this proposed rule is necessary and appropriate," said Lorri Gray, the Lower Colorado Region's regional director.

Reclamation is required to make sure all Colorado River water use is covered by legal entitlements under the 1928 Boulder Canyon Project Act. Walsh said the agency has not needed to enforce the requirement until now, because for the past few decades, the basin has been unusually wet.

"We don't have people running up and down the river checking for new wells," he said. From now on, however, Reclamation plans to conduct an inventory periodically to keep tabs on new wells, or work with local planning officials to set up some kind of reporting or notification system so that new well owners understand their obligations, he added.

The proposal

The proposed rule lays out criteria that water users need to satisfy to prove that the well does not deplete the river. It will also set up a process for appeals.

The rule only covers the three lower basin states because, under a decades-old Supreme Court decision, the secretary of Interior is the water master for the lower basin and is directed to keep tabs on water uses along the river under the 1928 law. There is no such requirement for the upper basin, which is not overseen by the Interior secretary, although Reclamation operates federal storage systems in both basins. Instead, the states of Colorado, Wyoming, Utah and New Mexico fall under the aegis of the Upper Colorado River Commission, formed by the states under the 1948 Upper Colorado River Basin Compact.

Technically, well owners who do not have the necessary paperwork could lose the use of their wells. But that does not appear likely. The goal is not to force well owners to stop using Colorado River water, but to bring them into compliance with federal law, Reclamation officials said.

"We want to emphasize that a key goal of this rule is to help those well owners who are using Colorado River water without a legal entitlement become lawful users of that water, through the development of contracts or by becoming customers of existing entitlement holders," Gray said.

While Arizona and Nevada still have some unallocated water left in their Colorado River bank accounts, California has already fully tapped its legal share. But Walsh said well owners there can probably contract with other Colorado River users that are not using their full water rights. For instance, the city of Needles, Calif., has water available through the Lower Colorado Water Supply Project, he said.

The U.S. Geological Survey is conducting an inventory to determine exactly how many wells are using Colorado River water. That study should be completed within two years, Walsh said.

A holistic approach

Jennifer Pitt, a senior research analyst with Environmental Defense who specializes in Colorado River issues, commended Reclamation for exerting a tighter grip on well use in the lower basin.

"I think it's a positive step they're taking to get their house in order," Pitt said.

The effort to look at the effects of groundwater pumping on river flows also marks an unusually holistic approach to water management in the West, she noted. Most states traditionally have treated groundwater and surface water as separate entities, often regulating surface water use but not groundwater use. In the lower Colorado River Basin, Arizona and Nevada water laws take a dualistic approach, while California now has a "conjunctive water management" program that provides for coordinated management and use of groundwater and surface water supplies.

"Our legal system has artificially separated groundwater from surface water, but the reality in the physical world is that they're connected," Pitt said. "So this effort to look at activities on how groundwater pumping affects surface water flows is doing the right thing and has the support of the states."

But water use by well owners is generally not very closely monitored by the states. Under Arizona law, a well owner has to secure a permit, but does not have to report how much water he or she is using, unless it's more than 35 gallons per minute. In Nevada and California, domestic well owners do not have to have a permit to drill a well, although some local ordinances require permits.

The Reclamation proposal is part of a larger effort to put the Colorado River Basin on a water diet. The seven states that share the basin have worked with Reclamation in recent years to fend off shortages and figure out how to make the river's supplies sustain a growing population amid ongoing drought and climate change. Last December, the basin states adopted a drought plan that includes requirements to operate the two main reservoirs on the river in tandem, as well as conservation and efficiency measures, including removing water-guzzling invasive plants, such as tamarisk, and lining canals to prevent leaks (Land Letter, Dec. 13, 2007).

Reclamation will hold public meetings on the proposal, which have yet to be scheduled. The agency is accepting e-mailed comments on the proposed rule until Sept. 15.

April Reese writes from Santa Fe, N.M.

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