*Rocky Mountain High by Peter Stabolepszy Creative Commons*

By Kristina Cowell

Introduction

In cold weather climates, layers of snow accumulate at high altitudes. When this snow melts it feeds into streams and rivers, hydrating fresh water ecosystems and supplying communities with drinking water.[i]

This “snowpack” serves another important function. It keeps the ground and soil moist by covering it into spring and summer. Plentiful snow delays the onset of the fire season and reduces the prevalence and severity of wildfires.[ii]

As the planet warms, snowpacks are melting and evaporation rates increasing. Precipitation that would have fallen as snow instead comes as rain. Scientists from Stanford University and Columbia University's Earth Institute have studied global snowpack declines, finding that it will impact drinking water for nearly 2 billion people.[iii]

The areas projected to be worst hit by dwindling snowpack are the San Joaquin basin in Western United States, the Colorado River basin that spans several US states and Mexico, and the Syr Darya basin of Central Asia. [iv]

Over the last 60 years, Western US states have seen reduced snowpack, with the largest reductions occurring in lower elevation mountains in the Northwest and California. From 1955 to 2015, April snowpack declined at over 90 percent of the sites measured.[v]

Rocky Mountain snowpack also on the wane

As much as 75 percent of water supplies in the Western states are derived from snowmelt.[vi] So less snowpack means potential water shortages, for rivers and humans alike.

The Central and Southern Rockies recorded snowpacks of as low as 50 percent of normal in April 2018.[vii] A continued dry spell risks setting a new historic low for the current snowpack of 2017-2018.[viii]

Not only do the central and southern Rockies have less snowpack than they used to, but this snowpack melts earlier, too.[ix] Early snowmelt seasons happen with overall warmer seasonal temperatures and smaller snowpack conditions.

Like clockwork, snowpack throughout the West builds up during the winter months then melts and fills streams in the summer – just when it’s needed the most. When the snowmelt season shifts even by a few weeks, this can significantly disrupt nature’s cycles, as well as the work of water planners to meet human needs.

How does water law work in the West?

The prior appropriation doctrine dominates water governance in the Western States (with the exception of California, Oregon and Washington, which combine prior appropriation with the riparian system found on the East Coast of the US).

The prior appropriation doctrine first emerged to help settle the West with a “first in time, first in right” approach to water rights. These original delegations of water rights still hold true to this day. Miners during the Gold Rush received many of the first water rights, which they’ve since passed down or sold for municipal, agriculture and a number of other “beneficial uses.”

Historically, such beneficial uses only included agricultural and municipal uses. Any water left in streams was considered a waste, since the law did not consider instream flows and ecological preservation.

However, in the latter half of the 20th century, citizens and lawmakers began pushing for ecological habitats and recreational uses to be considered beneficial uses. This has since been added into many jurisdictions.

The hardest working river in the West US: The Colorado River

The Colorado River is the country’s sixth largest river, running for 1,450 miles. It flows through 11 national parks, seven states and two countries (USA and Mexico), supporting diverse ecosystems, fish species and communities along the way. It also supplies water for major industries, supporting a $1.4 trillion annual economy and 16 million jobs. A few of these industries are agriculture, fishing and recreation.

Unfortunately, this also means the Colorado River is allocated as property down to its very last drop, and then some. For every primary water right, there are secondary, tertiary, and so on water rights waiting to use any leftover water not initially diverted and put to use. This overindulgence of water rights leaves scant flows for the river itself.

Wanting to tame the reliability of available flows to fulfill these water rights, governments have built fifteen dams on the main stem of the Colorado and hundreds more on its tributaries.[x] This “reliable” water supply has been the wholesale devastation of freshwater ecosystems. Dams are now known to block fish migration, disrupt natural flow processes, and dry up waterways, to name a few impacts.[xi] With many fish species on the brink of extinction, many have asked: can’t we just use less water and restore our precious rivers to health?

This year’s low snowpack is bad news for rivers

The National Resource Conservation Service reports on flows and projections for Western water.[xii] According to their latest outlook published on April 6, 2018, the hardest hit areas will be Colorado, Utah, Arizona and New Mexico. These states will see less than half of normal streamflow. Known for their desert landscapes and aridity, these states also serve as epicenters of recreation and biodiversity within their aquatic landscapes and extensive river networks. [xiii]

Arizona’s snowpack, which is already less than 25% of normal, began to melt much earlier in April than usual, leaving ecosystems parched. In Colorado, a major headwater state, the snowpack began to dwindle before it even had a chance to grow. The statewide snowpack of Colorado sits at just over 65% of normal with the Southern regions hurting disproportionately more. It is estimated that the Southern rivers like the Animas, Dolores and San Juan will only see around 30% of normal flow this summer.[xiv]

How to protect rivers in an age of dwindling snowpacks

The majority of the Colorado River basin is used for agriculture. In the arid Western climate it is a vital source of water. On average from 1971 - 2005, agriculture consumed 5,507,780 acre feet annually while municipal and industrial thermoelectric power combined only used 1,872,633 acre feet annually on average.[xv]

The best way to help the Colorado River is to buy products that were farmed in the West by using more sustainable methods. Drip irrigation is an extremely efficient form of irrigating crops and can reduce water consumption by 25%, yet is not widely used because it is also one of the most initially expensive ways to irrigate massive plots.[xvi]

Certain states, such as Oregon, have adopted laws to help keep instream flows. The Instream Water Right Act was adopted in 1987, and has issued more than 900 state agency-applied instream water rights. In order to put water instream, they have transferred water from time-limited transfers, permanent instream transfers and allocation of conserved water.[xvii]

Each of our actions makes a difference

While the challenges are great, there are practical and immediate steps everyone can take to protect and restore streamflow in our rivers. Here are a few ideas:

Take action as a water user. As a concerned citizen you can avoid water intensive produce like almonds, alfalfa and rice. Much of the winter produce is grown in the Yuma Valley and Imperial Valley, both of these valleys sit in what would be a desert with limited water supply, but still consume a vast majority of diverted water in the area.
Call for cutting-edge water conservation measures. The Colorado River Basin water supply forecasts look grim for this summer, with much of the river basin under 50% of average. This summer will need to see a number of combined conservation efforts from users and planners.[xviii] You can help by calling upon the authorities to take action.
Modernize our water governance to meet modern water challenges. The prior appropriation water law must be changed to allow for more flexibility within water rights holders’ areas for conservation and collaboration. Outdated laws from initial settlement of the West should no longer apply to current issues.
Recognize the legal rights of rivers to flow. Rivers are the backbone of the Western US, and without them we would not survive. The rights to a river’s flows should not be owned by only humans or corporations, but also by the river itself.

Earth Law principles for rivers

Earth Law recognizes rivers as living entities with legal rights to exist, thrive and evolve. Adopting legal principles to protect rivers will help us to reconfigure our relationship with river ecosystems. After all, rivers underpin much of our ability to thrive in otherwise inhospitable environments.

Earth Law legal principles for rivers include:

Requiring the most efficient water use technologies in order to restore flows to waterways
Taking action as a water user
Requiring cutting-edge water conservation measures
Modernizing our water governance to meet modern water challenges
Recognizing the legal rights of rivers to flow

To put such theories into effect, a new rights of rivers campaign has been launched for the Boulder Creek Watershed in Colorado. Boulder Rights of Nature, of which Earth Law Center is a member, is developing a plan to give this Watershed legal rights. One of these rights will be a legal right to flow. Enforcing this right will require ensuring minimum “lifeline” flows for Boulder Creek. And Boulder Creek itself will own those flows as a legal entity. If successful, Boulder Creek can be a model for many other watersheds in the United States and worldwide.