Editor’s note: This is the third in a three-part series examining the work that ASU is doing in the realm of water as a resource in the arid West. Today's focus in on the intersection of law, policy and academia.
It's 118 at Lake Mead on a July afternoon, but the thermometer on the boat’s depth finder says the lake is a cool 67 degrees. Naturally, you jump in. It tastes earthy and mossy, if mossy can be a taste, and ultimately it’s what 30 million people survive on.
This is the stuff and place thousands of professionals are focused on. Law, economics, policy and science all underlie this bluish-green water. Some could argue that it begins with the river’s watershed in the Rockies of western Wyoming, but it’s here, where the water wizards of the Bureau of Reclamation determine their annual prognostication, that the West makes its stand.
The Kyl Center for Water Policy, named after former Sen. Jon Kyl, a distinguished water lawyer, was created about a year and a half ago at Arizona State University to work on water-policy analysis and research. Sarah Porter, a Harvard-educated attorney and former state director of the Audubon Society, was hired as the inaugural director.
She became intrigued with water when she introduced an initiative to protect riparian habitat for bird migration.
“It got me more and more interested in water policy,” she said.
On a Friday morning in August, as the first meeting of the Governor’s Water Augmentation Council convenes down at the Arizona Capitol, a monsoon rain pounds outside.
“It’s raining outside; that’s awesome,” someone says.
Gov. Doug Ducey created the council last October. All of Arizona sits around the table: cattle growers, cotton farmers, cities, wine growers, utilities, tribal nations and communities, home builders, businessmen, attorneys and water professionals. Porter is there representing the Kyl Center.
They’ve been tasked with finding ways to augment water supplies. The state has been divvied into 22 areas. They are to look at each area, learn what the demand and supply imbalances are in each one, and come up with a solution to close that gap.
Today, they’re talking about the communications plan and what they want to do in the current fiscal year.
The message they want to get out is that Arizona is a “water success story” — in other words, we’re not California.
It’s a message with two competing goals: We need to conserve water, but we’re well-supplied. It’s safe to move here and do business.
“That bathtub ring (at Lake Mead) is not something only people in the Southwest pay attention to,” said Doug MacEachern, the state water department communications administrator.
They’re looking for a balance between rah-rah and everything’s awful.
“We need to tell people it’s going to cost more,” said Ted Cooke, general manager of the Central Arizona Project, the giant canal that shunts water from the Colorado River into central and southern Arizona. “It’s going to take more than new showerheads or toilets.”
“Their costs are going to go up, and that’s real,” said Bas Aja, executive vice president of the Arizona Cattlemen’s Association.
They create a subcommittee to look into funding for augmentation by using reclaimed and low-quality water. If there’s a shortage declaration on the Colorado in 2018, it’s likely that agriculture will need to make up the shortfall with reclaimed water. Porter volunteers to sit on the subcommittee. This is the rubber hitting the road.
They create another subcommittee to look into a partnership with Mexico on building a desalination plant on the Sea of Cortez.
They know people are aware of the value of water. That message is going to be amped up now.
The way Arizona water law works is called prior appropriation. The first person to take water out of a river and put it to beneficial use gets a priority date.
If you dig a ditch and divert water out of the river in 1890 and use 10 acre-feet to grow cotton, you have a right, dated 1890, to grow cotton using 10 acre-feet a year. Somebody comes along 10 years later, digs another ditch downstream of you to grow corn with 10 acre-feet — they have a 1900 date. If there’s only 2 acre-feet in the whole river, legally speaking, you, with the 1890 date, gets 2 acre-feet and the person downstream of you gets nothing. That’s the way water law works.
The Little Colorado River and the Gila River are the two rivers that basically make up all of the surface-water rights in the state that aren’t the Colorado. Who has claims on them? Every kind of water user you can think of: big cities, small towns, large utilities, Native American tribes, little farms, big farms, cattle ranches, mines.
And they’re all suing each other.
The sun rises at Lake Mead in late July. Photo by Charlie Leight/ASU Now
It’s a giant court case that has been technically going on for 40 years, but actually goes back to territorial days. A class-action lawsuit usually involves thousands of people against a small group of defendants. This involves thousands of people fighting each other.
“I don’t think it’s hyperbole to say that it’s the most complex case in American history,” said Rhett Larson, the water attorney with the Kyl Center for Water Policy. “Yeah, it’s a complete mess.”
A water market could improve Arizona’s water management. If a clearinghouse or escrow was set up, people could buy and sell water through that escrow for nature or cities or mining.
“Once we have effectively priced water in a market, then maybe we’re reaching efficient water allocation,” Larson said. “Right now, we can’t do that because nobody knows who owns what.”
Until the legal cases, collectively called the general stream adjudication, is resolved, Arizona can’t have an effective water market because people can’t buy and sell water until who owns what has been resolved. The Kyl Center works on the general stream adjudication every day. Ideally, the courts will ultimately make a decree. But not everyone is in a hurry to see the case cleared.
“So a lot of the work that’s happening behind the scenes is to find ways, if not necessarily to resolve it, to at least allow small people who want to settle out of it and don’t want to pay their lawyers for decades, just to be able to settle out, take some water and leave — and for the others to at least have a faster, smoother process,” Larson said. “But there’s a lot of skepticism of that too, because if you’re going to get ground up into hamburger in the end — do you really want it ground up faster?”
The center has a group of stakeholders who meet several times a month to negotiate. Larson said the work is promising. “We’ve made a lot of progress in the last 18 months,” he said. The Kyl Center acts as a mediator to avoid litigation.
Before worrying about conserving water, people need to worry about understanding water, Larson said.
“Imagine a resource as important as water, to not know who owns it,” he said. “A lot of these assured water-supply designations are based on assumptions on who owns what water that might not be true when the adjudication is decided.
“So people are like, ‘Oh yeah, we have a hundred years of assured water supply!’ And you always feel like going, ‘You don’t know for sure that you own that water until the court says you do.’ … But I don’t know, I still hope that there’s something that will sort of stoke the fire in people’s willingness to resolve the stream adjudication.”
When economist Adam Smith wrote "The Wealth of Nations," he wrote about the water-diamond paradox. Here’s a little tiny, shiny rock that people will pay out the nose for, but it does nothing. And over here is a substance that’s everything, but nobody wants to pay for.
It’s something Larson wonders about.
“I think it’s probably for a lot of reasons, partially because it falls for free out of the sky and people think, ‘Why should I pay for that?’ ” he said. “It’s partially because people think of water as a human right, as a fundamental right. I mean, how can you charge me for something that I absolutely need in order to live? And because, you know, in this country we tend to take it for granted. You turn on your taps and clean water comes out all the time, and you just assume this is a part of your life and it doesn’t cost much money.
“For some reason we will pay quadruple the amount of its price for movie popcorn, but the idea that you would pay full value for your water is just crazy!”
As the canal manager and the cattleman said at the water council meeting, pricing is on a lot of minds.
“We need to price water in a sane way to communicate to people this is a high-value commodity,” said Pat Gober, a research professor in ASU’s School of Geographical Sciences and Urban Planning who studies water resources management, decision-making under uncertainty and urban climate adaptation.
Video by Charlie Leight/ASU Now
Water is super-cheap in Arizona. SRP charges $90 a year for irrigation. If you look at a Phoenix water bill closely, most of it goes to sewage fees, garbage fees and some taxes. Very little of it is actually water.
The city of Phoenix Water Services Department spends $175 million annually on operations and management. Of that, $24 million is spent on actual water. The capital improvements budget is $130 million.
“The cost is in the infrastructure,” water services director Kathryn Sorensen said. A section of the redwood water pipes that used to supply the city in the 1920s sits in the lobby outside her office in City Hall, as if to underscore the point. Phoenix has 7,000 miles of water lines spread across 540 square miles. (Now multiply that around the West.)
“As those water lines age, they’re going to have to be replaced if we’re going to continue to have reliable water supplies,” she said. “The cost of that is enormous. We estimate, very roughly, that the replacement cost of the city of Phoenix utility — if you were just to go out and build it starting from scratch — is about $15 billion; $11 billion of that is in pipelines. It’s the cost of the infrastructure that’s going to matter in the future. It’s an enormous cost. And our infrastructure is aging.”
Sorensen is an economist by training.
“I’m intellectually fascinated with the idea and the questions around resource allocation: Who gets what? Of course the most valuable resource here in Arizona is water,” said the Phoenix native. “It’s a very natural fit for me. I knew at a very early age that this is exactly what I wanted to do. I’m one of those of people blessed to have their calling as a career.”
Phoenix has tiered water rates. The more you use, the more you pay. There is also seasonal pricing; water costs more in summer.
“That’s really one of the ways you’re going to get conservation,” Sorensen said.
She knows the cost of water will go up.
“Of course,” she said. “The cost of everything increases over time. When you talk about water, it absolutely will become more expensive, particularly Colorado River water.
“The impact of that in terms of the end customer will kind of vary. Different cities have different supply portfolios. A city that is more dependent on Colorado River water and a city that is more dependent on Salt and Verde water might expect a different mix on the impact of those costs.”
Agriculture, which uses 67 percent of the water in Arizona, according to the Department of Water Resources, began to pay more in the mid-1990s, when Grady Gammage Jr. served on the board of the Central Arizona Project.
“Historically, water has been free to farmers,” Gammage said. “What they pay for is the delivery cost. In California, the Imperial Irrigation District is still delivering water to farmers at something like $6 an acre-foot. When I was at CAP, we started charging $30 an acre-foot. The questions were could farmers afford it or not?
“The farmers’ view at that point was they had long-term rights to water; they owned the water. It was just getting delivered through the canal. But the contracts they had signed for that delivery required them to pay for the canal at the fully loaded cost of it, and they couldn’t afford that. So we re-cut a deal where they don’t have long-term rights to water anymore. Water is in a kind of limited spot market every year.”
He once sat with a bunch of farmers who told him, “We have to be assured we’ll have water every year, and that the price will never vary.”
“I said, ‘Are you ensured that the price of seed will never vary every year? Or that the price of insecticide will never vary every year? Or gasoline or diesel fuel?’ ‘Well, no, but that’s different. Water is different.’ No, it’s not. It’s a commodity, like those other commodities,” Gammage said.
“So what the CAP does now is it tries to price agricultural water at the cost of getting it here, but on a sort of rolling average so the farmers know three or four years in advance how much water there is going to be, and what it’s going to cost, and that can be adjusted. That was hugely revolutionary. They all thought that would destroy agriculture in Arizona, and it’s worked out pretty well. The price had gone up fairly dramatically over time.”
There’s a trade-off between how much you pay for water and how much you pay for food, said John Sabo, a professor in the ASU School of Life Sciences. We eat a lot of stuff because it’s cheap and available. We eat baby greens in the dead of summer because water is cheap.
“That’s what farms are sitting on: this resource that’s only going to go up in value over time,” Sabo said. “It’s going to force them to become more efficient.”
Farms may sell expensive water to cities and use that increased revenue to install things like drip irrigation or switch from low-value crops like alfalfa to high-value crops such as strawberries. We’re not going to get to the point where lettuce is $15 a head, though.
“No, because people won’t eat it if it’s that expensive,” Sabo said. “Remember when avocados were $4 each? We only had guacamole during the Super Bowl. … I think it’s more that we’ll be focused on eating seasonal things that are cheap, but not all year round.”
It’s not like farmers are acting like drunken sailors. In central Arizona, farmers are required by state law to use water-conservation practices like lining canals, laser-leveling fields and other best management practices. Farmers are legally required to be at least 80 percent efficient, according to the Department of Water Resources.
“Agriculture has become more efficient,” Porter said. “We can grow a lot more food with the same amount of water we used 30 years ago.”
“We really have a lot of water (in Phoenix),” Porter said.
Water usage in the city has fallen 30 percent in 20 years.
“We serve 400,000 more people than we did 20 years ago, with the same water,” Sorensen said. “Tremendously successful.”
Las Vegas pays residents to rip out lawns. Tucson has paid out $1.7 million on rebates for rain-harvesting systems. Not all those programs work. A lot of systems have been installed in Tucson, but there’s no decline in demand. In fact, they may be using twice the water they used before. Phoenix hasn’t paid for anything like that, but it’s hitting comparable demand reduction to cities in the region.
“I’m a big fan of the way the city of Phoenix has dealt with landscape issues, which is primarily about education, not about discouraging landscaping through rate adjustments or about paying people to tear out grass,” Gammage said.
What’s causing the drop in demand? Less turf, fewer pools being built, and more efficient appliances. One positive effect of the Great Recession Sabo pointed out was people couldn’t afford to buy new homes, so they remodeled. Remodels almost always involve kitchens and bathrooms, and new appliances are built to be water-efficient. Sorensen expects water use to continue to drop.
“We’re very proud of the way our residents have really embraced a desert lifestyle,” she said. “That’s what it is. Phoenix focuses on the long game when it comes to conservation. We’ve been doing it full-force since the mid-80s, decades before other communities figured out this was important.
“I know it sounds strange, but we don’t want our customers reacting to hydrologic events. We don’t want them reacting to the water levels in Lake Mead or the fact it’s been a 15-year drought, or any of those things. We want them to save water and use water efficiently because it will always be hot and dry here. That’s the mentality we need them to embrace. This is not a condition. This is not something to react to. This is how to live every day. That strategy has been successful in Phoenix.”
In-home efficiency is becoming about as good as it gets, Gammage thinks. And tearing out irrigated tall trees and lush lawns would be a terrible mistake.
“I think we need to be much more discriminating...