WyoFile, September 28 2, 2022, by Dustin Bleizeffer
The state has neither the legal right, nor inclination, to preemptively curtail water use in the ongoing Colorado River crisis, according to Chris Brown, senior assistant attorney general for the state engineer’s water division.
Only a determination by the Upper Colorado River Commission can result in a water curtailment order for Wyoming users subject to the Colorado River Compact, he said.
The earliest a curtailment order might happen, in Brown’s estimation, is 2025, if drought conditions persist and Colorado River flows at Lees Ferry downstream of Lake Powell in Arizona fall below a certain threshold. If that happens, the Wyoming State Engineer’s Office will implement water restrictions.
“The way things are going, it’s coming,” Brown told a crowd of more than 100 at the Sublette County Public Library in Pinedale Tuesday afternoon.
Exactly when and how much water Wyoming might be asked to conserve due to the Colorado River crisis depends on myriad factors — none more important, from a legal standpoint, than Wyoming’s obligation to the Colorado River Compact, according to Brown. And that “ends at Lees Ferry,” he said.
Wyoming and the other upper Colorado River Basin states — Utah, Colorado and New Mexico — are obligated to send 7.5 million acre-feet of water to Lees Ferry annually, on a running 10-year average. Modeling by the federal Bureau of Reclamation suggests flows could fall below the threshold by 2025 or 2028. Much also depends on how the BOR regulates flows out of Lake Powell, Brown said.
Ultimately, all seven Colorado River Basin states — along with the federal government, tribes and Mexico — have much to negotiate. Meantime, the state engineer’s office is initiating conversations with irrigators, municipalities and industrial water users about how they can use less water and still meet their needs. Voluntary and compensated conservation measures — backed by $4 billion from the Inflation Reduction Act — will be key to minimizing disruptions when there is a curtailment order, Brown said.
“How can you do more with less water?” Brown asked the Pinedale audience. “And what can we do to help you do your work with less water?”
In the event of a curtailment, Wyoming is only held responsible for its actual use, which averages about 600,000 acre-feet of water annually. Irrigated agriculture accounts for nearly 84% of the state’s consumptive use, according to the engineer’s office.
Other water users are also considered vulnerable, however, including trona processing plants, coal-burning power plants and municipalities. The City of Cheyenne, for example, relies on a water collection system that diverts otherwise Colorado River Basin-bound water for 70% of its municipal water supply. These water users are among some of the most “junior” in the pecking order of water rights, and therefore could be among the first ordered to reduce consumption.
Water rights in Wyoming are appropriated within the first-in-time, first-in-right doctrine. The earlier a water right was obtained, the more senior, the later are most junior. A curtailment order would be applied to those with the most junior water rights and work back in time until the curtailment volume is met.
However, the Colorado River Compact, struck in 1922, does not apply to those with water rights appropriated before 1922. No matter how much water Wyoming might be asked to curtail under the compact, it would only apply to those with water rights adjudicated after 1922, according to Brown.
One audience member asked Brown, “What if you’re one of the [junior] water rights holders and everything you have is going to get cut — are we just SOL?”
“You could be SOL,” Brown answered.
However, the Interior Department is expanding existing programs, and initiating new ones, to support trading, buying and leasing water allocations to encourage balance among users. Another irrigator at the meeting, George Kahrl, said he’s interested in forgoing some of his normal water use to help those with more junior rights — for compensation.
Ideally, those who benefit monetarily from voluntarily reducing their water use will invest that money into more efficient operations so they can maintain their agriculture operations with less water, Brown said.
Wyoming ag operators need assurance that that’s how such programs will actually work out, Rep. Albert Sommers (R-Pinedale) said. “I don’t know what those programs are or what they’re going to pay for, but we have to [maintain agricultural production] or we’re going to get hurt.”