West of the invisible 100th meridian line separating the East from the West, Harold Baxstrom irrigates 180 acres of hay or pasture with water directly from Lemon Reservoir.
Since the 2001 drought, very few farmers have been able to fully irrigate their land each year, and according to Baxstrom, a former Colorado state water commissioner and La Plata County Farm Bureau board member, often farmers have to decide if it’s even worth planting.
“People spend their water like they spend their money, either all or nothing – it’s a gamble every year,” Baxstrom said.
A cocktail of climate change, drought and population increase threatens an uncertain water future for 40 million people in seven states who rely on the Colorado River Basin for water. A 2012 study by the U.S. Bureau of Reclamation found there likely will be “significant shortfalls between projected water supplies and demands in the Colorado River Basin in the coming decades.”
With water arguably more precious than gold in the West, measures from the federal government to regulate an already-limited resource have been met with fierce opposition.
In the last year, the U.S. House Committee on Natural Resources held federal oversight hearings on measures ranging from groundwater regulation and ongoing ski area water-rights permits to a Clean Water Act rule. But the measure creating the most noise, specifically from the American Farm Bureau and Western ranching groups, was the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers definition of “waters of the United States,” or what waters fall under federal jurisdiction under the Clean Water Act.
Opponents of the definition painted a picture of federal agents attacking private water rights and regulating puddles, ponds and ditches.
During a hearing on the “waters of the United States rule” in July, Rep. Scott Tipton, R-Cortez, said the rule was a “water grab” by the EPA.
“This is straightforward: You either want to protect the private-property rights of water in Colorado and protect our state law or you don’t,” Tipton said.
Mark Squillace, director of the Natural Resources Law Center at the University of Colorado at Boulder, said the EPA was trying to clarify the rule, so it wouldn’t have an expensive case-by-case process every time someone wanted to use water.
He said the navigable waters under federal jurisdiction are pretty clear; they include waters adjacent to a tributary or wetlands. Where things got tricky, and when the alarm was pulled, was the “other waters” – or waters that aren’t traditionally thought of as navigable or regulated under federal law, but may, in some circumstances, even seasonally, reach a navigable body of water.
“There has been a lot of effort to politicize the rule-making and generate controversy over it,” Squillace said. “Ditching in the backyard is only covered if connected to a navigable body of water. So if you put in a ditch, and it runs into a river or stream, (it is covered). But if you have a pond, and it’s not draining into a stream, you aren’t regulated under the Clean Water Act. Really, nothing has changed.”
In Western states, agriculture uses a predominant portion of water. In Colorado alone, agriculture accounts for nearly 90 percent of water usage, according to the Colorado River Water Users Association.
With so much on the line, Baxstrom said farmers are always wary that federal law regulating water could conflict with Colorado’s state water laws where water is regulated among state, federal and tribal uses. When the federal government inserts a water regulation, it’s laid on top of many different pulls on the water.
“It’s such a variable; it’s very important to agriculture to keep administration at a state level,” Baxstrom said. “Every area is different, and that’s why it’s important to maintain state law as opposed to federal administration because every basin is unique, every situation is unique.”
Squillace said the rule would not protect any waters that were not historically protected under the Clean Water Act but directly responds to Supreme Court cases requiring a more narrowly tailored definition of what wetlands and streams are covered.
“There is an exemption for normal farming and ranching that includes things like cultivation and ground disturbances, even though many of the farming activities could adversely affect water quality,” Squillace said.
And not all farmers are against the rule. The Rocky Mountain Farmers Union supports the rule, alongside other water users like the recreational sector and environmental groups that see the rule as an opportunity to strengthen clean water protections for all water users.
“This is the biggest step forward we’ve seen to protect waterways in more than a decade,” said Kim Stevens, campaign director from Environment Colorado. “This isn’t about regulating puddles; it’s about protecting 73,000 miles of Colorado waterways and drinking water for 3.7 million Coloradans.”
According to the EPA, “about 60 percent of stream miles in the U.S. flow only seasonally or after rain, but have a considerable impact on the downstream waters.” These waters also provide drinking water for about 1 in 3 people.
The public comment period on the rule has been extended until Oct. 20.
House Republicans are expected to take up a bill introduced by Rep. Steve Southerland, R-Fla., that would prohibit the federal government from implementing the rule in lieu of federal agencies working with states to decide what waters are federally protected or left to regulate by the state.
In a time when parts of the West are laboring under historic drought conditions, water allocations and rights is an issue that is not going away.
“It’s always in the headlines; there’s never enough,” Baxstrom said.