Prepared remarks: The Way Forward on Water Management (March 10, 2025)

Talk Given to Business for Water Stewardship on March 10, 2025

In Colorado, we confront challenges as opportunities. As Wallace Stegner, the famed Western writer, once put it—it’s impossible to be pessimistic in the West; it’s the native land of hope. How we manage our water is a test of that ethos.

There are no two ways to put this:  we face significant water scarcity challenges in Colorado and the West. That scarcity is driven, in part, by increasing demands as population booms. And it’s also driven by our changing climate, which is reducing snowpack, changing runoff patterns, increasing evaporation, and drying soils.

While we know that climate change significantly impacts Colorado’s water, its extent and exact impact is presently unknown. That uncertainty, coupled with the unpredictability in rainfall and snowpack, is destabilizing—making it difficult for farmers, ranchers, and even cities to know what to expect each year or how to plan for the future. Unfortunately, the variable weather patterns we are seeing are very likely to be our new normal, creating considerable pressure for us to create more adaptive and resilient systems for water management.

Increased uncertainty and unpredictability in water make planning more important than ever, with an imperative of developing new and innovative strategies for water management. It is no exaggeration to say that the future success of Colorado will depend, in considerable part, on our ability to adapt to scarcity and reduce the uncertainty and unpredictability that come with it. The best and most durable solutions will go beyond individual success and will collaborate with other interests to find win-win solutions.

I know this is important to Business for Water Stewardship, and I’m excited to talk with you about it today.  I also want to speak about how our management of water must remain intertwined with respect for the rule of law, as the solutions we craft are only as good as the laws they are built upon and the institutions charged with implementing and upholding them.

I. Moving Toward a Resilient and Adaptive System of Water Management

Adapting to scarcity and creating more certainty will require us to develop innovative and collaborative strategies for water management. It will also require collective action. We cannot focus on individual successes and ignore the community in which these projects occur. I appreciate how you captured this point on your website:

We believe businesses have an opportunity—and a responsibility— to ensure that their operations and investments improve communities and ecosystems where they do business. And in water-stressed regions, that responsibility is deeply rooted in how we value, use, and protect water.  That’s why we help businesses work collaboratively with community and policy stakeholders to advance solutions that ensure people, economies, and ecosystems have enough clean water to flourish.[1]

I couldn’t agree more. Each of us, whether as businesses or individuals, has a responsibility to ensure that, wherever we can, we work to improve communities and ecosystems where we live and work. Let me begin by focusing on a few projects that have done that. And I want to contrast those with projects that do not.

          A. The Maybell Diversion Project

The Maybell Diversion Project is a wonderful example of a project that has multiple benefits. Updating and modernizing the Maybell Diversion Project improved efficiency for irrigation, increases resiliency to drought, and benefitted threatened and endangered species.[2]

Before the project was completed in 2024, irrigators from Maybell Irrigation District had to trudge two hours through steep, rugged sagebrush country to manually open and close the rusted and broken metal headgate.[3] It was an arduous, yet crucial task because Maybell is one of the largest irrigation diversions on the Yampa.[4]

The Nature Conservancy worked with numerous partners to help fund the $6.8M project. Funding partners include: the Bureau of Reclamation’s WaterSMART program; the National Fish and Wildlife Foundation; the Upper Colorado River Endangered Fish Recovery Program,[5] and the Colorado Water Conservation Board.[6]

Today, the opening and closing of the Maybell headgate can be controlled remotely and is determined by a combination of water user needs and available flows into the Maybell Ditch. The Maybell Irrigation District also coordinates with the Upper Colorado River Endangered Fish Recovery Program and the Division of Water Resources to guide water use in the Lower Yampa.[7]

As I said previously, this project promises mutual benefits. It allows continued irrigation of historical lands, which supports local farmers and the economy. At the same time, it also improves fish habitat and removes barriers to boat passage, supporting the environment and secondary economic benefits like river recreation.

In 2021, I spoke to the Colorado Water Congress about “The Imperative of Investing in Water Infrastructure.”[8] In that speech, I highlighted important water infrastructure projects around the state, including a plan to replace the aging Grand Valley Hydroelectric facility with a new more efficient plant capable of producing 1.5 times as much power. Like the Maybell Diversion Project, that plan brought multiple benefits. In addition to producing more clean electricity, their continued use of the water right will ensure that water flows into the 15-mile Reach, a critical stretch of river for four species of endangered fish. Many local irrigators will also benefit from increased diversions at an upstream diversion point supplying the plant.

In that speech, I also emphasized the importance of developing funding sources and investment opportunities in water infrastructure. I mentioned a few success stories, like Proposition DD, HB 21-1260, which provides $20 million in funding for implementation of the Colorado Water Plan, and HB 21-240, which provides $30 million for watershed restoration in response to wildfires, including funding for flood prevention and mitigation. But those are not enough. With continued growth on the horizon, our commitment to fund projects laid out in the Colorado Water Plan is imperative. That plan is the roadmap for investing in our future and fulfilling the Plan’s vision will take billions of dollars.

          B. Rye Resurgence Project

The Rye Resurgence Project in the San Luis Valley supports continued farming, while reducing water use, improving soil health, and helping the community flourish.

During this time of drought, it is critical that we find ways to use less water without sacrificing economic opportunities. This can help build resilience in the face of shrinking water supplies. Crops, like rye, can use far less water—up to 40%—than other similar crops like barley or oats.[9] This difference is huge in a region that is trying to conserve water in order to balance Rio Grande water use with supply. Data in 2024 shows the San Luis aquifer at its lowest recorded level in history.[10]

An important element of the Rye Resurgence Project is that it recognizes that switching to crops that require less water will only succeed if there is a market where farmers can sell those new crops at a profit. The project helps build a market for Colorado rye by investing significant effort and resources in marketing, branding materials, and personnel to develop relationships between the growers and the end users of rye such as brewers, distillers, millers, bakers, and consumers.[11]  Building the market for San Luis Valley Resurgence Rye gives farmers an option to reduce their impact, earn a living wage, and support the local community. By keeping farmers farming, the future health of the community will be sustained.

II. Two Cautionary Tales to Avoid in the Future

The above two projects reflect effective strategies for managing water during this challenging time. There are, however, examples that have proven to be ineffective that are important to learn from. I will discuss two such cautionary case studies, highlighting some pitfalls of mismanaging water.

          A. Alfalfa for Saudia Arabia

The growing of alfalfa in Arizona to ship to Saudi Arabia is perhaps the most glaring example of a project whose success comes at the expense of the community in which it occurs.[12] The short story of this project is that Saudi firms bought up 9 square miles of land in Arizona for irrigating and growing alfalfa grass.[13] The firms grew alfalfa in Arizona to export to Saudi Arabia and the United Arab Emirates because they had already drained their own aquifers.[14]

Alfalfa is an incredibly water-intensive crop. Growing it in a desert climate drastically impacts the surrounding communities. The Saudis were using the same amount of water to grow hay just for export as what a million people in the state use for water every year.[15] The Saudis invested a huge amount of water into the crop which they couldn’t grow at home because they don’t have the water. Essentially, this is exporting Arizona’s water.

By transporting the alfalfa overseas instead of selling it domestically, this also eliminated all future economic returns on that water. If that alfalfa stayed in Arizona, for example, it could have been sold to domestic cattle producers and benefited local communities and businesses. None of those domestic gains were achieved once the alfalfa left our shores.

          B. Buy and Dry Schemes

In Colorado, we have seen before what is now labelled a “buy and dry” scheme. This scheme involves the sale of relatively all the water from a community, shipping it to a thirsty urban community and destroying a local agricultural economy. That is, in short, the tale of what happened in Crowley County.[16] As captured in Colorado’s Water Plan, it is an approach that we are committed to avoiding in the future.[17]

For an example of a buy and dry project now on the table, consider the case of the (improperly named) Renewable Water Resources. That project would buy out wells that are currently used to irrigate lands in the San Luis Valley and, rather than using that water for irrigation and farming, it would be piped to the front range for new suburban houses.[18] This has several direct and indirect negative economic impacts as well as cultural impacts on the San Luis Valley. This project makes one rural community suffer while a suburban community prospers.

In contrast to the Rye Resurgence Project, which invests in farmers to help them adapt to new markets, this project disregards farmers and eliminates the economic driver for their community. Proponents say the water is necessary to ensure other communities have enough water supply to secure their future. But we can’t let ourselves be tricked into believing that economic prosperity or managing our water resources is a zero-sum game.

          C. Perkins County Canal

For another example of approaching our water management challenges as a zero-sum game, take the case of Nebraska’s proposed Perkins County Canal project. In a zero-sum game, there can be some winners, but at a high cost to others. In this case in particular, there will be many more losers and lots of wasted time and money. Rather than pursue such a costly path, we can find shared goals and interests and build solutions to help achieve those.

Under Nebraska’s plans, it will invest the time, money, and effort to build a canal to divert water in Colorado for use in Nebraska under the 1923 South Platte River Compact. If Nebraska does that, then Colorado water users will likely build countermeasures to offset impacts of the canal. Under this scenario, both Nebraska and Colorado would end up investing hundreds of millions of dollars, but almost all water users in each state would end up in a position that is no better than they were before Nebraska proposed the canal.

A better approach to the issue is one that recognizes that the agricultural economy and the communities it supports doesn’t observe state boundaries. The economy is regional. Farmers own land in both states. An individual farmer might buy supplies in Nebraska and farm in Colorado. And the reverse is likely true. Durable solutions need to benefit the region and not make the success contingent on the failure of the other. I will continue to do all I can to work towards such a solution.

III.  The Importance of the Rule of Law in Water Management

As we adapt to changing hydrology and look for flexible and collaborative solutions, it will also be important to stand firm on certain principles. Our success not only relies on our adaptability, but also on a solid foundation of laws that are consistently enforced with predictable results.

Colorado’s framework for managing water is based on state-level oversight and ultimate responsibility. This is bolstered by significant reliance on regional and local partnerships to facilitate solutions that are tailored to the water supply needs of local communities. The Colorado model prioritizes respect for and collaboration with regional bodies, such as water conservancy and conservation districts, with a norm of deferring to local expertise and solutions whenever possible. Nonetheless, the ultimate responsibility of managing Colorado’s water and ensuring compliance with compacts, laws, and regulations falls to the State. This is especially true when we talk about compliance with interstate water compacts.

          A. Interstate Compact Compliance

Compliance with Colorado’s nine interstate water compacts, two international treaties, and three equitable apportionment decrees is exclusively the responsibility of the State. This authority is established by the compact clause of the U.S Constitution that allows States, as sovereigns, to enter into agreements to apportion water between them to avoid conflicts over water.

Once ratified by Congress, interstate compacts become federal law. That does not mean, however, that the federal government controls state water resources. The power to control uses of water is an essential attribute of State sovereignty.[19] When states compact with each other to apportion the waters of interstate streams, those compacts also bind the federal government.[20] As we negotiate or litigate over our interstate compacts, I am dedicated to defending Colorado from federal overreach and protecting Colorado’s compact apportionments.

To the extent a state fails to comply with its interstate compact obligations, the State—and not individual water users, conservation or conservancy districts, or local governments—is held solely liable and responsible for complying or possibly paying damages out of the State’s General Fund.[21] In 2006, for example, the State was required to pay nearly $35 million in damages and legal costs to Kansas for violating the Arkansas River Compact.[22] When there is a challenge to State actions under the terms of these agreements, it is the State that is on the hook and local and regional entities are precluded from participating as parties to help defend the State in such litigation.[23] That is because interstate water disputes, reserved to the “original and exclusive jurisdiction” of the Supreme Court,[24] necessarily invoke States’ sovereignty, with each representing “the interests and rights of all of her people in a controversy with the other.”[25]

Elected officials in charge of managing Colorado’s water are accountable to taxpayers who, as noted above, will ultimately bear the cost of any failure to comply with interstate compacts. If the State manages water in a way in which constituents do not approve, they are able express their views directly to their elected officials or engage in the election process to have their voices heard. It is critical for the State to retain full authority to administer and distribute the waters of the State arising there to comply with interstate compacts as the sovereign with the exclusive authority to do so.

For a cautionary tale of how a state mismanaged its water consider what happened in Nebraska, when it faced an issue of how to manage its groundwater. In short, Nebraska delegated its regulatory authority over groundwater to local Natural Resource Districts instead of the state’s Department of Natural Resources.[26] Those local districts represented only the interests of their own water users, and they faced no direct liability for falling out of compact compliance. As a result, the districts failed to make the difficult policy and enforcement decisions necessary for Nebraska to comply with the compact, and Nebraska was forced to pay nearly $6 million in damages to Kansas after the U.S. Supreme Court found that Nebraska had violated the Republican River Compact.[27]

          B. Developing Adaptable and Resilient Strategies for Colorado

Projects like the Maybell Diversion and Rye Resurgence are important to help individuals and communities adapt to variable water supplies. We will also need statewide strategies—and legal institutions—to allow those types of water users to occur while ensuring compliance with our interstate compact obligations. Together, we are well positioned to start a broader conversation on what adaptability and resilient strategies—and what legal tools—can help us achieve this critical goal.

Stakeholders have started to suggest different possible tools that can enable Colorado to better manage our water in an adaptive and resilient manner. One suggested strategy is to create a statewide conservation program that compensates people who forego use of their water rights, particularly at times of great demands on a particular system. The Rio Grande Conservation District is implementing such a system to protect its groundwater resources, for example.[28]

A second concept that some have suggested is to create a strategic reserve of water that Colorado could release to protect its water users from mandatory curtailments that might otherwise result from a shortage of water to downstream states. Under this model, the state would acquire and manage “slack capacity,” putting the state in position to navigate shortages and times when there is more demand for water than available.

Whatever strategies are ultimately developed, they are sure to be more successful if they can be built and tested before we need them. Given the pressures we are seeing on multiple fronts, the time to develop and test such ideas is now. As we know from lessons from other countries, the stakes are high and adopting an imperfect system can give rise to most unfortunate consequences.[29]

* * *

Our ability to adapt to the scarcity of water in Colorado and reduce uncertainty and unpredictability is critical to ensuring a promising future for our state. As I have explained, the best and most durable solutions will go beyond individual success and will collaborate with other interests to find win-win solutions like the Maybell Diversion and Rye Resurgence Projects. As we adapt to changing hydrology and look for flexible and collaborative solutions, it is also imperative to ground solutions in the rule of law and an admirable system. This is a formidable challenge, but one we can undoubtedly meet in the native land of hope.

 

[1] https://businessforwater.org/frequently-asked-questions/

[2] The Nature Conservancy, Colorado Year in Review 2024, https://www.nature.org/content/dam/tnc/nature/en/documents/TNC_CO_Year_In_Review_Report_24Final.pdf

[3] Id.

[4] Id.

[5] Id.

[6]https://dnrweblink.state.co.us/cwcbsearch/0/edoc/215967/TheNatureConservancy_MaybellDiversionConstruction_Application.pdf

[7] The Nature Conservancy, supra note 2.

[8] https://coag.gov/blog-post/prepared-remarks-the-imperative-of-investing-in-water-infrastructure-colorado-water-congress-summer-conference-aug-25-2021/

[9] https://ryeresurgence.com/the-project

[10] Id.

[11] Id.

[12]Juana Summers, Amid a water crisis, Arizona is using lots of it to grow alfalfa to export overseas, NPR, August 9, 2023, https://www.npr.org/2023/08/09/1192996975/amid-a-water-crisis-arizona-is-using-lots-of-it-to-grow-alfalfa-to-export-overse

[13] Id.

[14] Id.

[15] Id.

[16] https://www.5280.com/high-dry

[17] https://cwcb.colorado.gov/read-plan

[18]Mark Obmascik, Poll shows deep opposition to RWR water export plan, Alamosa Citizen, June 20, 2022, https://www.alamosacitizen.com/poll-shows-deep-opposition-to-rwr-water-export-plan/

[19] Tarrant Regional Water Dist. v. Herrmann, 569 U.S. 614, 631 (2013).

[20] Texas v. New Mexico, 602 U.S. 943, 962 (2024).

[21] Kansas v. Nebraska, 574 U.S. 445, 459 (2015) (finding local district boards bore no responsibility for complying with compact and assumed no share of the penalties Nebraska would pay for violations).

[22] Kansas v. Colorado, 533 U.S. 1, 20 (2001) (remanding the case to the Special Master for a determination of damages); Fifth and Final Report of Arthur L. Littleworth, Special Master, at 3, Kansas v. Colorado, No. 105 Orig., vol. II (Jan. 31, 2008).

[23] Texas v. New Mexico, 583 U.S. 913 (2017) (denying motions to intervene by local water districts in compact dispute between states).

[24] 28 U.S.C. § 1251(a).

[25] Wyoming v. Colorado, 286 U.S. 494, 508-09 (1932); New Jersey v. New York, 345 U.S. 369, 372 (1953); see also South Carolina v. North Carolina, 558 U.S. 256, 267 (1953) (“In its sovereign capacity, a State represents the interests of its citizens in an original action, the disposition of which binds the citizens.”); Nebraska v. Wyoming, 515 U.S. 1, 21 (1995) (“A State is presumed to speak in the best interests of [its] citizens. . . .”).

[26] Neb. Rev. Stat. Ann. § 46-702 (“The Legislature also finds that natural resources districts have the legal authority to regulate certain activities and, except as otherwise specifically provided by statute, as local entities are the preferred regulators of activities which may contribute to ground water depletion.”).

[27] Kansas v. Nebraska, 574 U.S. 445 (2015).

[28] The Citizen, $3,000 per acre-foot to retire groundwater wells, Alamosa Citizen, March 2, 2023, https://www.alamosacitizen.com/3000-per-acre-foot-to-retire-groundwater-wells/.

[29] https://coag.gov/app/uploads/2021/02/Colorado-Water-Congress-Feb-2021-FINAL.pdf