DRAINING THE WEST? Transcript
May 2002
"Everybody wants it and you know people go to war over it."
"They've essentially claimed all the water in the snake river."
"We were here first, why don't somebody else suffer some economic pain like we have for the last 200 years."
"Society's demands are based on economics. When your belly's empty your views change."
"It could be changed in a variety of ways."
"The real challenge is to avoid sticking our heads in the sand and meet all the other responsibilities that we're going to have to meet."
JIM PECK, HOST, IDAHO PUBLIC TELEVISION:
Welcome to Draining the West?, another in our FocusWest series of programs. I'm Jim Peck.
JOAN CARTAN-HANSEN, HOST, IDAHO PUBLIC TELEVISION:
And I'm Joan Cartan-Hansen. FocusWest is a collaborative project of Idaho Public Television, Wyoming Public Television and KNPB Reno Public Television. Working together we're trying to enhance our understanding of public policy issues important in the west. And for this program we'll talk about water. Having it means power to your home, food at your table, and money in your pocket. So what happens if you turn on the tap and nothing comes out?
PECK:
With a group of leading water managers, lawyers, activists, and consumers we're exploring the demands on water in a growing and changing west and what impact we all can have on deciding how the future of water will flow.
First in time, first in right. When you talk about water in the west, that's where you start.
LORI WILLIAMS:
Everybody wants it, and you know people go to war over it.
PECK:
The idea of prior appropriation began in the mining camps of the 1800's. The first minors who claimed the water could use it to the exclusion of others.
DANIEL HURLBUTT, FORMER SNAKE RIVER ADJUDICATION JUDGE:
Therefore the first to take water out of the stream, put it to beneficial use has a prior right or a senior right.
PECK:
Anybody who claimed water later had a junior right. If there wasn't enough water flowing down the creek, the senior right holder got his share first, the rest took what was left over based on when they first filed their claim.
JOHN SIMPSON, ATTORNEY, WATER & NATURAL RESOURCES:
20, 30 years ago a farmer just had to be concerned about his local issues, getting the water to his headgate, delivering it to his headgate and using it. Now there's pressure's put on the resource year-round.
PECK:
More people, a changing economy, a concern over quality of life -- all factors putting pressure on water supplies and how we allocate a public resource.
HURLBUTT:
And like tectonic plates our past development of the resource is colliding with the current economy and reality of full or over appropriation.
PECK:
Proponents argue a new century calls for new ways of defining who controls the water.
LAURIE GOODMAN, TROUT UNLIMITED, JACKSON, WYOMING:
It could be changed in a variety of ways. There could be recognition within the law of the benefits of conservation. If a rancher didn't use all of their water rights for irrigation and instead chose to benefit from fishing access that would be an avenue that instream flow protection could provide. That's currently not allowed in the statute.
PECK:
But opponents argue adapting or abandoning prior appropriation of water rights is undermining the west's traditional economy.
DAN BUDD, RANCHER, BIG PINEY, WYOMING:
Society's demands are based on economics. When your belly's empty your views change.
PECK:
And in determining who controls the water and how much, there are also two wild cards -- the Endangered Species Act and tribal rights.
ALLEN PINKHAM, NEZ PERCE TRIBE:
We've lost so many species already, you know, the buffalo, the passenger pigeon, the list goes on and on. Why should the salmon be another one that we need to sacrifice and let go extinct? I don't think we should. We should try everything in our power.
BOB JONES, EXECUTIVE OFFICER, BUILDERS ASSOCIATION OF NORTHERN NEVADA:
There's an old saying that water follows money, and the reality is it probably will get more expensive.
HURLBUTT:
We are all in this together. All of these interests aren't just going to disappear. The real challenge is to avoid sticking our heads in the sand and figure out ways to provide for this wonderful, independent lifestyle that we have and meet all the other responsibilities that we're going to have to meet.
PECK:
The federal agency that used water to transform the west is the Bureau of Reclamation and the man who leads that agency and decides how much of west's water will be used is John Keys, commissioner for the Bureau. Mr. Keys how do you balance these needs in the west?
JOHN KEYS, COMMISSIONER, BUREAU OF RECLAMATION:
Well, for the most case we work for the people of the United States and the people, the Congress appropriates monies and authorizes us to work on projects, and the proposals for those projects come from the people. The people get behind a project, decide that they want to do it and then it goes to the Congress for authorization and then we work with them to build it.
CARTAN-HANSEN:
And the man who wrote the book on water law in the west is a professor of natural resource law at the University of Colorado School of Law. He's also the founding Executive Director of the Native American Rights Foundation. David Getches, what do you think the priorities should be for water in the west?
DAVID GETCHES, AUTHOR, PROFESSOR OF LAW, U OF COLORADO:
The priority for law in the west is a changing thing. What it was in the 1800's is manifested in the prior appropriation doctrine. Today we still have the doctrine with us, but we have many more purposes to serve, public purposes -- fish, wildlife, recreation, satisfying the needs of ecosystems -- those are all challenges to a doctrine that was formed in another era. Meanwhile those purposes that were satisfied well with prior appropriation, agriculture and mining, are well established. The west has been settled and that was the primary underlying motive for the doctrine. Now we have this rapid urbanization and that has to be accommodated, so there are many new challenges. There's no single priority.
PECK:
Now no state in the west faces a greater challenge for finding water for it's growing population than does Nevada and no city has greater demands than Las Vegas. The woman who helps oversee the operations of the southern Nevada water authority is kay brothers. Now kay as you deal with this kind of growth what are your concerns?
KAY BROTHERS, SOUTHERN NEVADA WATER AUTHORITY:
The video said we're all in it together, we recognize there are other needs besides just population and urban need, there's recreational needs, there's needs for species and I think that's it. We all need to sit down and, and establish priorities and meet those priorities.
CARTAN-HANSEN:
And in Wyoming the person responsible for water authorization is the state's engineer and for 13 years you actually decided who got the water and who didn't get the water, what are your priorities?
JEFF FASSETT, FORMER WYOMING STATE ENGINEER:
Well our priorities are really to follow the state laws that allow people, allow the citizens, the water users to come forth and want to make beneficial use of water and to apply for the water rights in the state of Wyoming. It is the state engineer who makes the decision to approve or reject those water right applications.
CARTAN-HANSEN:
Trying to decide who gets that water, who has that authorization especially in Wyoming has been, has been a bit of a struggle like throughout the west, Wyoming has had this struggle and in 1986, the Wyoming state legislature passed a law recognizing that water in the streams could be left for fisheries and is indeed a beneficial use. One recognized by law and therefore it needs to be considered when allocating water, and as Katherine Collins from Wyoming Public Television outlines the struggle for instream flow has intensified ever since.
DAN BUDD:
Water of the green River is accountable for a fourth of the industrial tax base in the state of Wyoming. In Rock Springs with the power plants, the . . . plants, the fertilizer plants.
KATHARINE COLLINS, WYOMING PUBLIC TV:
The settlement of Wyoming depended on consumptive use of water. That means taking water out of the stream and putting it to work for irrigation, industrial, or municipal use. In the past three decades a competing concept, instream flows, is shaping the debate over how water is used and who makes the decisions.
STORE EMPLOYEE:
Great outdoor shop. All of August and September can be really fine fishing if we've got the water.
PATRICK TYRRELL, WYOMING STATE ENGINEER:
The Wyoming instream flow statutes passed in 1986 and it does define the instream flow and the leaving of water instream as a beneficial use and that it would be to maintain or enhance fisheries.
SEN. CALE CASE, (R) LANDER, WYOMING:
It was passed reluctantly by the legislature because there was a citizens initiative that was going to take precedence if the legislature didn't act.
BUDD:
Well I was involved in the legislature when the instream flow laws were proposed and of course resisted them with all of my ability. You can't eat recreation and you can't eat scenery.
TOM ANNEAR, INSTREAM FLOW SUPERVISOR, WYOMING STATE GAME & FISH DEPARTMENT:
One of the things the instream flow water rights do is they give you the opportunity to look through time, look into the future and if development comes to the Green River basin then you'd at least have that safety net.
COLLINS:
The instream flow law has been on the books for 16 years. During that time the Wyoming Game and Fish department has filed 83 instream flow applications. Only 17 have been approved.
TYRRELL:
That seems like a lot of applications and only a few permits, but these are permits that come in, they involve the work, cooperative work of three different agencies and they involve a public hearing.
ANNEAR:
It seems to be a different pace then when you look at other rights during that same time period. There have been I think something over 75,000 water rights for all other purposes applied for in the past 16 years.
CASE:
We've only managed to protect about 50 miles of river in this entire time.
COLLINS:
Anglers are not the only advocates of greater flexibility in the instream flow law. Municipal and economic development officials and ordinary citizens are demanding reliable water flows through their towns.
ROSE SKINNER, MAYOR, PINEDALE, WYOMING:
The citizens of Pinedale, and as mayor I get this, call and say the creek's down, why can't we have water in the creek? Why, what are you doing with our water? Well Pine Creek is almost the essence of why the settlement is here.
COLLINS:
Pinedale asked the state for a temporary water use agreement. The plan was to take their own stored water from Freemont Lake and use it to increase the flow in Pine Creek in late summer. They found that water can readily be diverted to a stock tank, a pipeline or highway construction projects, but leaving it in the stream is not so easy.
TYRRELL:
A temporary water use agreement is not the proper vehicle for protecting waters and instream flow.
COLLINS:
Pinedale had to start over, under Wyoming water law, only the Game and Fish department can apply for an instream flow permit. The process however involves a series of studies and could cost upwards of $30,000.
TYRRELL:
You need to follow the process that the legislature's outlined to obtain an instream flow and not do it this other fashion. I think we have that process, we must use it.
COLLINS:
Severe drought gripped Freemont County last summer, the middle fork of the . . . river was so polluted that Lander's citizens were warned to stay away.
CASE:
That's very disturbing. This river was actually posted for restrictions on swimming and being in the river, the river that I grew up around and played in all my life. And the reason it's impaired is because of warm temperatures, low flow, very stagnant water.
I proposed a bill to allow agricultural users' water to temporarily give or sell their water for the purpose of being used for industry and flows.
COLLINS:
Senator Case's bill fell one vote short of introduction during this year's legislative budget session. That close vote is a signal that the issue won't go away.
ANNEAR:
It reflected this growing interest in, in the public you know particularly municipalities in Wyoming to try and get more flexibility for administering Wyoming's water resources.
GOODMAN:
And there's all sorts of fears and misunderstanding and potential threats about the changes in store. So I think that is a movement similar to what happened in 1986 that will have to start amongst the grass roots, among the communities that find the water laws aren't reflecting or allowing for their needs.
CARTAN-HANSEN:
If you want more information about water issues in the west, go ahead and go to our website focuswest.org.
LAIRD LUCAS, ATTORNEY, LAND AND WATER FUND OF THE ROCKIES:
Commissioner Keys, the Reclamation Act was passed way back in the beginning of the century, and one of the things it says is water has to be used for reasonable, beneficial use and state water law says the same thing. A court in New Mexico recently held that when the Bureau of Reclamation delivers water to farmers it has to make sure that water is being used for beneficial use and not being wasted, like being flooded in fields, when perhaps you could change to sprinklers or drip systems. What is the Bureau of Reclamation doing to get water use, current water use more efficient so we could have more water in stream for fish?
KEYS:
The court case you are talking about is Minnow vs. Keys [United States District Court For The District Of New Mexico, April 2002] on the middle Rio Grande. Actually there are two or three facets, not Jeffs, but facets to that whole case we are trying to look at. The ruling was just made a week before last, but it said that the biological opinion [BO] there is adequate but that we should consider the irrigation efficiency in the district and then maybe release water for the endangered species from that contracted amount of water. We are still trying to figure out how that works. Now your question is, what are we doing to try to help provide water for instream flows? We are working with every irrigation district in the West on water conservation projects. They have to have a water conservation clause in every contract that we do that says they will help conserve water and beneficially use it.
LUCAS:
Is there a federal program to help provide incentives to farmers to save water and then take that water and leave it in stream though, and if not how can we get there?
KEYS:
Well, we have programs that help conserve water, but leaving it in stream is a state issue. In other words, we can't get in and dictate to a state how they set their state water rights.
CARTAN-HANSEN:
In Wyoming people want water in the west, they're trying to get more into instream flow, that's true in a lot of parts of the west. How can we do that under our current system or does something have to change to get more water instream?
FASSETT:
Oh not necessarily. Actually the piece about Wyoming water law that we just observed one key aspect of the law that passed in Wyoming was to allow for the change of use of existing water rights to instream flow as well, and that is something that has not been applied for ever since 1986. So there's one aspect of the law that hasn't been worked out yet.
PECK
Mr. Getches, when we look at the priorities that we're speaking about now do you think they're in the right place? Are we looking at the right areas?
GETCHES:
We have a changing target here when we are talking about priorities. We have priorities based on time with water users. One of the things that is built into the water law doctrine we have for most of these rights is that they are transferable. Most of the water has already been spoken for. The way we get water for growing cities, the way we get water back in the streams is to reallocate it from the existing uses, and that is the challenge -- how to do that fairly and adequately within the existing system.
CARTAN-HANSEN:
What about people who, who only know, all they know about water is they want it in the river and they want it in their tap. How do you explain to that audience that water is a commodity that's bought and sold based on who got there first?
GETCHES:
A long time ago when our water rights system began, our predecessors made a decision that water rights were going to be a type of property. And once you staked your claim to water, put it to use on your farm or in a mine, that the water would be yours to continue using and in most states you have the right to transfer that away. Well, all the water in our rivers have been taken up that way. So if you want water today for another use, you've got to buy it, or it has to be in conflict with some fundamental public interest. We have regulatory statutes that keep you from fouling the water with pollution, for instance, or killing off a whole species of fish. But for the most part, the answer to the member of the public is, "Get involved and participate in processes to get the water reallocated."
BROTHERS:
The West is being populated by people that are moving from the east with a different attitude towards water. I think that it is the municipality's responsibility to educate the people that are moving there. There is a cultural difference in water in the west versus water on the east coast or the eastern part of the United States and they have to realize that. People in Las Vegas look at me and ask, how could we possibly be running out of water? Lake Mead holds 26,000,000 acre-feet of water, and Las Vegas has a consumptive use of only 300,000 acre-feet, a very small portion of that. It's education -- municipalities should be educating people in the differences of the west versus the east.
WENDY WILSON, CONSULTANT, RIVER NETWORK:
It seems like in a changing West and in a climate that is even changing with more and more droughts, the system is facing bankruptcy and you guys are the bankruptcy court. The Bureau of Reclamation says they have to follow state water laws, and the state water laws favor development. So I am wondering if the four of you can answer one little question: how flexible is the prior appropriation doctrine to change as things change? For example, why aren't we requiring that every time a water right is transferred from irrigation to municipal use, that the fish, the birds, the wildlife, the Indians get a 25% kickback? Why doesn't that happen and can the prior appropriation doctrine change and be flexible enough to handle that kind of an idea?
GETCHES:
Well I think a part of that is that it's not about justice it's about law. The most effective way to get water in streams is very uncomfortable and it's through federal regulation. It's through the Endangered Species Act, the Clean Water Act, and the strange laws that come from Washington, D.C. and set the teeth of westerners on edge. Now is there an alternative to that? Theoretically there is and that is for state laws to modernize and I'm not talking about throwing out the prior appropriation doctrine, but I'm talking about putting real meaning into those words, beneficial use and public interest and public participation.
BROTHERS:
I think a lot is changing, I think you know you should have hope, if you as, as David said it's changed dramatically within 10 years. If you look at the lower Colorado River basin it's changing because of the multi-species habitat conservation plans, but what is really changing is the attitude the people have now. Environmental issues are no longer a dirty word at the Colorado River Water Users Association. We talk about environmental issues. The whole thought and culture of the lower basin and of some of the western water issues are changing species, environmental species are an issue, indian rights are an issue, they're being talked about, they're being recognized, they're being put up as issues that have to be solved. That's a huge change, that's a huge positive change.
PECK:
Now whenever you talk about water in the west there are two wild cards that could turn our current way of doing business on its ear, the Endangered Species Act and the tribal water rights. Now in Idaho the negotiations are underway between the state and the Nez Perce and what's at stake is nothing less than the future of everyone's water rights. Idaho Public Television's Marsha Franklin explains.
ALLEN PINKHAM, NEZ PERCE TRIBE:
Salmon and all other fishes and all other insects and birds and all the other animals are our relatives. They're like brothers and sisters to us, so now who talks to those animals and those fish and birds and insects? It has to be the human being that talks for them.
MARCIA FRANKLIN, IDAHO PUBLIC TELEVISION:
And for Nez Perce Elder Alan Pinkham that conversation has been a long time coming.
PINKHAM:
We were never given that option 200 years ago and 150 years ago, even 100 years ago, even a few years ago we were never given a choice. But now since we have the law, what you people call the law of the land, we are using that law of the land to protect our interest, and water issues are our interest.
FRANKLIN:
Specifically the Nez Perce tribe has filed thousands of water claims in the Snake River Basin Adjudication. Claims that could affect water rights holders 100's of miles away.
JOHN SIMPSON, ATTORNEY, WATER & NATURAL RESOURCE:
The number of farmers throughout the basin that would be impacted would be extraordinary. Very few farmers, if any, could exist in the manner that they've been accustomed to.
FRANKLIN:
John Simpson represents water users who stand to be affected by the large number of claims the tribe has filed.
SIMPSON:
They've essentially claimed all the water in the Snake River area. So water that's now stored behind reservoirs could be subject to a call by the Nez Perce tribe to fill their water rights. That could extend all the way to the headwaters in Wyoming, in the Jackson Lake area, those are the headwaters of the Snake River. The ramifications are to anyone that uses water in the state.
FRANKLIN:
Because it was government policy to civilize nomadic Indians, forcing them onto reservations and making them farm, courts have ruled the tribes have a right to enough water to irrigate their land and run their operations on the reservation, but the Nez Perce say their treaty specifically reserves to them fishing rights off the reservation and that they say means they can claim that water as well.
PINKHAM:
When we negotiated the treaty of 1855 with Isaac Stevens we said we want to fish here, here and here, not only in our homelands, but as we travel.
CLIVE STRONG, IDAHO DEPUTY ATTORNEY GENERAL:
The state's position is that we do not believe that the tribe has a reserved water right under the Nez Perce treaty.
FRANKLIN:
Clive Strong is head of the Natural Resources division of the Idaho attorney general's office.
STRONG:
Certainly we recognize the Nez Perce tribe has a right to hunt and fish, but that right is in common with the other citizens of the territory. When we were developing the west the whole idea was to open the lands to development and to allow these claims to go forward would defeat that purpose.
DOUG NASH, ATTORNEY, NEZ PERCE TRIBAL MEMBER:
The question in a general stream adjudication involving the issue of indian water rights isn't what Congress intended when it put settlers on land, it's what did Congress intend when it created the reservation in the first place.
FRANKLIN:
Doug Nash is an attorney and a member of the Nez Perce tribe.
NASH:
One that there's a right to fish specifically reserved by treaty and a right to fish without the right to the water to support those fish is as destructive to that right as having irrigated farmland without the water.
FRANKLIN:
And according to case law, Native Americans can literally go back to the beginning of time to date that water claim.
NASH:
For tribes in this country, the fishing has been an activity that has been engaged in has been part of a way of life since time immemorial and there's no feasible way to date that activity.
STRONG:
The real problem, at least from the state's perspective of these claims, is that with the priority date of time immemorial, they become the first water right on the river. So all of the existing uses within these various basins in which claims have been made would be junior in time to those rights and subject to curtailment in order to satisfy them.
PINKHAM:
We were here first. We've always been here, since time immemorial. Since time began we were given this area to live. And now some other strange people came and say we don't have these rights. That is not correct. We were here first.
FRANKLIN:
For more than 10 years, the state, the tribe and other interested parties have been trying to resolve the conflict, both in the courtroom and at the negotiating table. While the legal proceedings have been opened the bargaining process has not been and that's where much of the action is taking place.
STRONG:
Obviously there are some very sensitive issues that we're discussing and parties in order to explore whether they're willing to make concessions in one area need to have the flexibility and the freedom to talk openly about those without the concern that then becomes an issue in the press that then frustrates the negotiation process.
FRANKLIN:
Those involved say they hope the talks will not only resolve specific water rights issues, but also help solve larger problems, such as the conflict over water for endangered species.
SIMPSON:
The negotiations are an effort to resolve in our view all threats to Idaho water. To allow irrigated agriculture to continue as it has for 100 years, allow development to continue, we want to ensure that the way of life that all Idahoan's have been accustomed to can continue.
PINKHAM:
You know we as Indian people have been hurt many times over because of the encroachment of so-called civilization. So when do we quit feeling pain? Why don't somebody else suffer some economic pain, like we have for the last 200 years?
SIMPSON:
I understand that, we understand where their feelings lie, but at the same time if there were broken promises 150 years ago, that's unfortunate, but that doesn't mean that promises that were made 100 years ago to people coming out west should then be broken.
PECK:
And for more background on tribal water rights throughout the west check out our website at focuswest.org. Now Mr. Keys, everybody sort of takes a deep breath when they watch this piece. This is a huge issue. If and when this claim is upheld, what are we looking at realistically?
JOHN KEYS:
Well I have not personally been involved in the negotiation, so I don't know the day to day stuff, but I do know that our people from the Department of Interior are working very closely with the negotiators to try to find some way, some common way that the needs of the tribes are met at the same time we protect those contracts and water rights that we deal with. Whether we can do that or not I don't know; we're still waiting.
AARON MILES, SR., DIRECTOR, NATURAL RESOURCE DEPT., NEZ PERCE TRIBE:
Everybody's telling the Indians to quit fishing, but nobody's telling the farmers to put shrubbery or, or you know riparian zones around their farm fields and things of that nature. There's no incentive programs to do things that protect the water quality not just looking at water quantity in this particular case so and then the other question I had is for you David is when did the state, was it a deliberate attempt to put instream flow as you know kind of a secondary to beneficial uses and really start you know for this first in time, first in right seniority case that we're looking at I mean in terms of making the tribes go back into a more a junior user point of view rather than the senior point of view?
DAVID GETCHES:
The tribes certainly have an important claim to priority for the water. The way the Supreme Court put it, it dates back to the date the reservation was established most non-Indian users came after that, so there is a priority there. The question of what the tribes can do with that water is one that hasn't been fully answered by the courts. If they have water allocated for agriculture can they switch it to instream flows? I think most people believe that they can, but the question is what procedures do they have to go through and whose interests are considered? Do you consider the interest of the nearby irrigators when you make that change of use, to instream flow which necessarily means water constantly flows in the stream and you can't dry up the stream? That's an unsettled area.
CLIVE STRONG:
I think that we are really missing the major issue -- we've got one bucket of water and it has to serve a multiplicity of purposes, and we tend to spend a lot of time fighting over who makes those decisions rather than deciding where their common interests are at. And until we come to the table and people share where the common interests are and how we can make the water achieve those multiple purposes, we will continue to have this kind of dialogue.
BRIAN WALLACE, CHAIRMAN, WASHOE TRIBE, NEVADA:
it appears that the tools we have to sort these issues out and the environment that we are working in is doctrinally conflictive, [that is, the ability] of the trustee to uphold the public trust and the Indian trust puts [the federal government] in a conflict of interest and [creates] very difficult and challenging choices. So maybe, in some ways the dogmas of our quiet past are inadequate to the stormy present. From a cultural perspective, as an Indian person and as tribal leader, for us history is more about place than it is time, and to the Washoe people where I come from in Lake Tahoe, water is a sacred environment and, in the context of subsistence economies that tribes are involved in, we look to instream flows or springs and artesian sources that we have relied on for a number of years. They are very much a strong element of our survival and the landscape that we rely upon and quite frankly, our cultural and biological well-being relies on that and rests on it and maybe not just ours, not just Indian people, but everybody in the west.
GETCHES:
I think what we need to do is to be willing to look at how our doctrines serve the past and how they can serve the present. We've suggested that the prior appropriation doctrine is what allocates most water in the West. Some people would like to throw it all out together. I guess I take a little different view of that -- I think it is here to stay. We have to learn how to work with it. It is part of the tradition and the basis for property rights. On the other hand, if it doesn't show its flexibility, if it doesn't show its ability to change, it will be challenged as the fundamental doctrine. The states have these instream flow systems, and there is enormous political pressure to make them work. The states also have a beneficial use doctrine, yet we continue to have waste of water. I think all the elements are there: we need to make the laws work better.
JEFF FASSETT:
I think he's exactly right. I am an advocate for [the view that] if you show up at the first meeting and you want to throw away all the rules, you are just not going to open up dialogue with anybody. And so you need to get past that and begin to look for practical solutions and ways to do [things]. I had the pleasure of being a State Engineer, a state official who made the water rights distribution decisions in Wyoming for many years and I liked the fact that we did have flexibility. There are also some places that I wish I had more flexibility, because I think Dave makes the point that you need to take the doctrine, the prior appropriation doctrine, and begin to move with that doctrine and use that to meet a lot of these new uses. I think that's the way to solve these problems, whether it is endangered species or other sorts of challenges that [lie] ahead.
DELBERT FARMER, SHOSHONE-BANNOCK TRIBE:
When we signed our treaty, I don't think that a lot of people understand that, we agreed to unoccupy all of this land and to move to the reservations. And I will say that again -- we agreed to unoccupy, we gave up the land. The land is what we are talking about, it has the water rights. So we kind of in some ways stabbed ourselves in the back. We are on this reservation, which is our homeland that we have to perpetuate from now on and continue to maintain. That is my little spiel for history, but let me tell you about the real issue. The real issue isn't that mountains create water, that springs create water; the real issue here is the clouds. Now who is going to lay claim to the clouds because we all know that's where the water comes from? So what's this deal about prior appropriation and all this other stuff, first in time and beneficial use, when it is the clouds that come every winter and provide moisture to the mountains and water to the streams? As far as Shoshone Bannock is concerned, we lay claim to the clouds. Thank you.
ALBERT BARKER, ATTORNEY, WATER & NATURAL RESOURCES:
I would like to make a couple of observations. One [is] on a comment that Mr. Getches made about the Indian water rights claims being indisputable. In fact, I think that there is a significant dispute both into the right itself and the scope of that right and the quantity of the water that would be reserved to it. And in fact, I do not want to leave the impression that the claims for off-reservation rights in particular are indisputable. Because what the Winter's doctrine did in 1908 was acknowledge on-reservation claims for a particular Indian tribe. And now what we are seeing is the Winter's doctrine attempted to be expanded beyond that into off-reservation claims and reaching out off the reservation to make water right claims. And so I think it is important for the audience to understand that there is that difference.
KAY BROTHERS:
It is something that you have to have stakeholder involvement in everyone at the table because it doesn't work if you go out and decide that you're the only one that you know has a need, everyone has a need and I think we have to come to the table and I think one of the rules of negotiations is that you know if we're successful everybody gets what they need, not necessarily what they want.
CARTAN-HANSEN:
You know growth is another kind of wildcard that we play into this discussion you know and people don't always pop up where the water is. In Nevada, as KNPB Reno Public Television's Erin Breen reports, wheeling and dealing for water so developers can build homes is a gamble.
ERIN MEEHAN BREEN, KNPB-TV RENO, NEVADA:
Water, water everywhere, but here's a splash of reality. Balancing finite water supplies in the west with ongoing growth is really more a gamble than sure science. And the supply we have is being spread thin and the shear number of homes demanding it is skyrocketing.
As you can see building is booming and this is just the tip of the iceberg for development in the west, and that has a lot of people worried about water.
Northern Nevada depends on the Truckee River as its main source of water, with groundwater basins as necessary backup, but with the groundwater supplies scientifically uncertain the state engineer has already capped pumping of the aquifers at 48,000 acre feet a year.
LORI WILLIAMS, TRUCKEE MEADOWS WATER AUTHORITY:
And we're okay with that, because we know that if we pump 48,000 acre feet of water out of this basin on an annual basis, we would basically be mining water beyond the natural recharge of the basin.
ERIN MEEHAN BREEN:
And taken to extremes water mining could leave the west high and dry literally. Of course Nevada's notoriety as the fastest growing state in the country is basically fueled by unbridled building in Las Vegas.
BOB JONES:
Of all the communities you can think of that conceivably should have a water problem with a growing problem wouldn't it be Las Vegas?
ERIN MEEHAN BREEN:
With no local water to tap, Las Vegas depends heavily on water from the Colorado River. It's a very expensive option, but like so many big, urban areas those who live there are willing to pay whatever it takes to continue the flow.
Even though the situation to the north is nowhere near as extreme, it's just as critical. Water in the west is as good as gold. The latest estimate is that there are 20,000 to 40,000 acre feet of water rights still unallocated on the Truckee River and they are the focus of daily bargaining in an open water rights market. Since developers need to secure water rights for every development you see spring up before it can be built, there's a constant vigil over who's willing to sell how many for how much.
WILLIAMS:
A couple thousand a year is the demand on water rights in this community, or has been over the past ten years. Basically if I have somebody who wants to sell water rights or someone who's looking to buy water rights I pick up my phone and I dial Jack Robb. And it's sad because I know his number by heart. I have a customer who's looking for about 150 acre feet probably in the next two weeks for his development.
ERIN MEEHAN BREEN:
And Jack knows the numbers of most of the potential sellers by heart.
JACK ROBB, COORDINATOR OF FIELD SERVICES, TRUCKEE MEADOWS WATER AUTHORITY:
Like we talked about you're going to hold on to two acre feet for development and then I'll look at purchasing the rest at $3,200 an acre foot?
DAN:
That sounds great Jack, I'll relay that to the seller and, and let you know.
ROBB:
Alrighty, appreciate it Dan.
DAN:
I appreciate your help Jack.
ROBB:
Alrighty, talk to you later.
DAN:
Thank you.
ROBB:
Alrighty thanks. Bye.
ERIN MEEHAN BREEN:
While no one will talk about the competition, they all openly admit that over time supply and demand could easily send the prices into an unending upward spiral. And securing water rights on paper doesn't guarantee water in your pipes.
EMILY BRASWELL, EXECUTIVE DIRECTOR, TRUCKEE MEADOWS WATER AUTHORITY:
You may have rights for water, but depending on the drought situation you may not actually have wet water to go with those rights because water rights means you have that right to pull water out of the river or pull water out of the groundwater, but if water's not there it doesn't matter how much right you have because it's just not there.
ERIN MEEHAN BREEN:
In the planning business they call that hitting a wall, and it's something they expect to see happen more often as development continues.
BOB FIRTH, WATER RESOURCE CONSULTANT:
When we get to the end or near the end of our resources that are locally available and that's primarily the Truckee River and local underground sources then you start having to look at something like importation projects.
BREEN:
Right.
FIRTH:
And of course those are historically, they're fairly expensive they usually have environmental and political problems.
ERIN MEEHAN BREEN:
So scientists like John Tracy with the Desert Research Institute are looking to futuristic alternatives to augment our existing water supply, like desalinating sea water.
JOHN TRACY, EXECUTIVE DIRECTOR, CENTER FOR WATERSHED ENVIRONMENTAL SUSTAINABILITY:
Now imagine the situation where L.A. and San Diego you know have feasible desalination facilities. Well then how hard will it be for Vegas to sort of buy into those to get higher allocations from Colorado River water and so forth and so on? So there's kind of always ways to reorganize the system to get it done. However there are always going to be environmental consequences and I think that's where the real trade-off's going to be, it's going to be what are you going to accept in your degradation to your environment to allow this increased growth.
ERIN MEEHAN BREEN:
And developers are ever optimistic that we can do more with what's here.
BOB JONES:
But reality is we're using 6% of that to support this entire economic engine that drives northern Nevada. Now the reality is what we have to do is find a way to get some of that water that flows through us and use it.
ERIN MEEHAN BREEN:
We may not reach the limits on water in the west for another 20 years, but it's very clear that the planning for that day needs to start now.
CARTAN-HANSEN:
And there's more information and an ongoing chat available on our website, click on focuswest.org. Let's jump to you Ms. Brothers. Growth is something you have to deal with big time. Your city is in a desert and growing and needs more water how do you, how do you find that water that you need and, and for places like Reno and other places in the west. How do those developers find and deal with growth?
KAY BROTHERS:
Well I'll answer for Las Vegas. We have started water planning, we started water planning in the mid 1980's for the day that we would exceed our allocated Colorado River water. We do a water resource plan every year. We do population projections, turn them in to demand projections and then look to the future to see what water resources are out there to meet those needs. So saying that it's a gamble I take a little offense at that I think because of the planning that was begun back in the mid '80's we secure additional water supplies, our water resource plan shows water supplies through 2050, the key is, is planning every year and keep working at developing water resources. And I think that's the way of the west I think you're going to have to look to the future for looking at what's available when, surpluses may be available again and will be and they can be banked in aquifers for future use so it's, it's utilization and efficiency use of water when it's available.
DAVID GETCHES:
I think there are some great possibilities for groundwater injection and storage and there are many projects that have gone well beyond the experimental stage in southern California for years they've stored water underground from several sources including the Colorado River and now they're reclaiming sewage, pumping it underground and then re extracting it for urban uses.
JOHN KEYS:
We see the challenge of the 21st century as being water. No matter what any of us say, we have got all the water we are ever going to get. They are not making any more, and we have to make the best use out of it. In some of the programs that we are working with, we are looking to the recycling and re-use of wastewater as the next river to tap. The southern California work that Dr. Getches talked about before is something that we're heavy into. Right now we've got about a dozen projects going there, but we see that expanding into the agricultural areas so that we are actually taking those wastewaters and using them where it is appropriate and saving the good water for where we need it.
RICK JOHNSON, EXECUTIVE DIRECTOR, IDAHO CONSERVATION LEAGUE:
Water in the west has never been a win/win situation for anybody, and it seems as though in this increasingly urbanized west, one of the fastest growing parts of the nation that we're headed for what seems to me with, with the finite amount of water a public policy train wreck. For the panel or for anybody else what does the worst case scenario look like?
JEFF FASSETT:
Believe it or not Wyoming is a fairly urban state. Most people don't realize just what a high percentage of our small number of citizens actually live in communities. 2002 is one of the worst dry years on record and the third in a row for our communities. Indeed we are finding some gaps again in our laws where the communities really need some new tools in order to position themselves to deal with a severe drought as we are experiencing this year. But as we have said, our state, Wyoming, has long had the ability to change the use of water rights. And most of our growing communities have to go out onto the open market, they have to look for a willing seller. They can condemn but never do. They look for a willing seller, they can find willing sellers and they have to go through a change of use process often, in order to solve their long-term water supply situation, an internal reallocation within the state of Wyoming. It is very difficult to get new development-type projects built. They are very expensive, very difficult permitting processes, so we are beginning even in Wyoming to see a reallocation through a voluntary sale and transfer of senior water priority rights to communities to meet their growing demands.
KEYS:
So the train wreck that you are talking about is for us to ash-can everything that we've got going right now. If you throw everything in the ash-can, and say we are going to redo this whole thing, you throw away all the infrastructure that's in place that guarantees the water that all of us depend on. And certainly, a wholesale abandonment of the water rights system that we've put together that works. Now, I agree that there are some things that need to be done to help the tribes, to help meet some of the Endangered Species Act requirements. But if we do away with that thing without some good substitute, that's the train wreck that I see.
DAVE SHAW, WATER ENGINEER, ERO RESOURCES CORPORATION:
One of the things that helps the situation is if they come to the table with reasonable expectations. I think Kay said that: what do they need and not what do they want. One thing that hasn't been mentioned very much today though is the need for science as part of that process. I think that if you look at Klamath last year, you have an excellent example of what can happen if science is involved. So that is a very important component along with the attitude that people come there to find a solution and not to express their wants rather than their needs. And I think as we talk about the settlements, we have recognize that there are some consequences with reallocation of water. At no time today did I hear anybody say that food doesn't come from the grocery stores. We still need the agriculture production in this country, people are going to eat, they need to eat. We talk about droughts affecting water supplies for irrigated agriculture; they certainly affect water supplies for rain-fed lands as well. So all those things need to be considered when we look at solutions for the future.
GETCHES:
We talked about Klamath -- that is a perfect example of what we are struggling with throughout the West. It is a little microcosm. When the Klamath irrigation systems were built, not by Mr. Keys but his predecessors, their job was much easier than his. They were supposed to get water to lands for irrigation; they weren't supposed to think about Indian fishing rights; they weren't supposed to think about endangered species or recreation, God forbid, or any of those interests we care about today. Now he has to solve the problem, and it is going to take some mix of ingenuity and money because people have property interests in their right to use that water.
ROBERT MATT, WILDLIFE MANAGER, COEUR D'ALENE TRIBE:
I come from an area -- the Colombia River basin -- where we provide the majority of the water for the downstream folks above Grand Coulee Dam. I am kind of perplexed by the longevity of the memory when it comes to the prior appropriation doctrine and history and the role that that plays in the future. I was wondering if the panel could maybe take some time to speak to the obligations of addressing the impacts of the past.
GETCHES:
I think that it is appropriate, although not typical, to bring into the discussion some consciousness of ethics and fairness to everybody concerned and to the environment as well, and that that ought to be part of respectable discourse.
KEYS:
I certainly can't and don't want to get into making excuses for decisions that were made in the past. But the laddering of Grand Coulee has received a lot of attention over the past few years and certainly at the time it was done, it seemed like the best thing to do. Now we see different, but there have been a lot of efforts made to rectify that. We run three fish hatcheries there now to try to replace those fish, and to those people that we were working with at that time, that was acceptable. Now, whether that stands the test of time, I don't know.
GETCHES:
Also at that time you didn't have all these environmental statutes that you deal with now, not one of those dams was built with an environmental impact statement. It wasn't required by law.
KEYS:
No, that's right.
CARTAN-HANSEN:
What do we see for the future? Where is our water supply going in the next 10, 20 years? What are the, what are the biggest challenges that we have to face and what can we realistically do about them?
JEFF FASSETT, FORMER WYOMING STATE ENGINEER:
I think that the challenges will be continued growth. I think in the case of Wyoming, there's a lot of good basic tools in our laws to allow that to occur. But I think you are going to need more. As Dave said earlier, there is nothing like a good drought to advance the public knowledge and the solutions. In answer to your planning question, I was recalling that we did lots of wonderful planning at the State Engineer's Office, worked co-operatively with the staff of our local county who were suffering a declining groundwater table with a lot of rural development. But it wasn't until finally somebody said they just weren't going to issue anymore building permits did you finally have enough attention. Indeed, the state of Wyoming now has become much more aggressive in a very public-oriented water planning process and has brought in the local mayors and the county commissioners and the other purveyors, because the state can act no differently than our federal friends. It just can't come down from on high and expect it to work. I think you do have to develop new tools and new processes, but when you do I saw a lot of success.
PECK:
It sounds like a lot of people are saying we need to bring different people together to a great big table, everybody can pull chairs up. Is that realistic? And how do we get those people there?
DAVID GETCHES, AUTHOR, PROFESSOR OF LAW, U OF COLORADO:
Well, it's realistic, [but] it's difficult and painful. I know that John has dealt with the Cal-Fed process, and talk about difficult! There, all parties are at the table. It is neither a pleasant nor conclusive engagement but it's what we have to do at the big watershed level. At a more pleasant level, you see hundreds and hundreds of smaller watersheds where people are coming together and solving these problems. I think it is realistic to set a large table and expect everyone stay there until the problem is solved.
JOHN KEYS, COMMISSIONER, BUREAU OF RECLAMATION:
Our Secretary of Interior [Gale Norton] has been preaching since she's been there about the four C's: communication, co-operation and collaboration, all in the name of conservation. And conservation of water is the part that Reclamation plays in that whole process. And the process that I just described -- [the one] she pushes -- is what we're talking about here. You can't do things in a vacuum, you just can't do it.
PECK:
How do we keep things then from always ending up in court and having that be where these discussions take place?
KEYS:
Start early.
KAY BROTHERS, SOUTHERN NEVADA WATER AUTHORITY:
Oh I think that's how you keep them from going to court is that you get everyone together and start discussing the issues before the lawsuits are filed basically. I think planning is key as we discussed. I think we all have to recognize that we live in a watershed and even though we have political boundaries, state boundaries, country boundaries, all of us rely on that watershed and I think if it comes to the table with stakeholders recognize that they're they have valid needs to and figure out the best way that, that all of us could try to win is going to be key to managing water resources in the future and I think that's, that's something that is beginning because of the discussions are expanding to look at environment, look at, look at additional issues and then I think meeting water needs and, and meeting all needs conservation becomes so key because if we're not maximizing the use of water for urban areas, agricultural areas, there's conservation that could be had there, I mean we all have to be very efficient and that's the only way I think we're going to be able to meet everybody's needs.
GETCHES:
I think that as Commissioner Keys said, we are not going to make any more water. That won't be the solution to our future problems. The solution is partly going to be technological, but I think that the biggest challenge is going to be the way we make decisions about how to use water. Every one of our state constitutions and state statutes says that water is the property of the people; water belongs to the public. Yet still represented in water decisions, year after year, are primarily the people who have property rights in water. And it is appropriate that they be there. But we are going to have to set a very big table to make the decisions in the future, if they are going to hold water. And we are going to have to seat at that table governments -- federal, state, local, tribal -- and land use planners, and we are going to have to have respect for the fish and wildlife and natural world that was neglected in setting up our original system. And take this old house that we've inherited and build on the old foundation something that really does work for the modern world. I think it can be done, but it's really a people problem, not a physical problem.
CARTAN-HANSEN:
I'm afraid we have run out of time, we'd like to thank our panelists and our audience for joining us.
PECK:
The discussion continues on our website at focuswest.o-r-g. Check it out and thank you for tuning in.
CARTAN-HANSEN:
Good evening.
Funding for FocusWest has been provided by a grant from the Ford Foundation, committed to encouraging communication and cooperation throughout the world.
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