Sarah F. Bates was director of the Natural Resources Law Center at the University of Colorado School of Law. She was the co-author, with Marc Reisner, of the book Overtapped Oasis: Reform or Revolution for Western Water (Island Press, 1990). Prior to joining the Natural Resources Law Center, she practiced law with the Sierra Club Legal Defense Fund in San Francisco.

David H. Getches, professor of law at the University of Colorado School of Law, is a nationally recognized water resources and Indian law expert. He formerly served as executive director of the Colorado Department of Natural Resources under Governor Richard D. Lamm, and as the founding executive director of the Native American Rights Fund. His many publications include Controlling Water Use: The Unfinished Business of Water Quality Control (Natural Resources Law Center, 1991), Water Law in a Nutshell (West, 1990), and legal texts on water and Indian law.

Lawrence J. MacDonnell, director of the Natural Resources Law Center and adjoint professor at the University of Colorado School of Law, has written widely on subjects of water resources law and policy. Much of his work focused on issues related to reallocation of water uses.

Charles F. Wilkinson, the Moses Lasky Professor of Law at the University of Colorado School of Law, is one of the nation's leading scholars and lecturers on issues relating to natural resources law and policy in the American West. He has written several books and has also published legal texts on federal public lands and Indian law.

The West's Gordian Knot

D. H. LAWRENCE : "The Third Thing"

WATER has been at the front edge of initiatives to create new settlements and economies ever since Americans took control of the arid landscape of the American West in the 1840s. The great rush that drew settlers west and that made the United States a force in the world's economy was built on the gold country streams that carried the precious metal, supplied the domestic needs of the mining camps, and drove the powerful hydraulic hoses that blew lode deposits out of the hillsides. A generation later, water was the essential ingredient in fulfilling the Jeffersonian ideal of allowing farmers and ranchers to settle new lands, lands where crops grew only if the settlers put water on the fields by means of irrigation. Still later, elaborate plumbing systems transported water over great distances, often across natural divides, enabling growth of industry and development of housing subdivisions in booming metropolitan areas. Today, water feeds the rivers, lakes, and landscapes that attract millions of tourists and recreationists to the region.

Yet, while there is agreement about water's critical role, water policy has become the Gordian knot of the American West, a system so tangled that it can never be untied. The subject of water policy and law is daunting, almost forbidding. The ancient, intricate, and seemingly solid structure of water policy, like King Gordius' tangled knot of old, is surrounded by an aura of unapproachability. Decisions governing the public's waters involve little public participation. Laypeople perceive the subject as too complicated and hypertechnical and are intimidated by the confused web of engineering jargon and legalese—cubic feet per second, transmountain diversions, hydroelectric power grids, and senior and junior water rights, for example. The whole structure is so complex, delicate, and interrelated, and the stakes so high, that reform seems risky.

Leave it to the experts. Don't try to untie the knot, let alone slice through it.

The root difficulty with preserving the status quo is that western water is governed by one of the most outmoded collection of rules found anywhere in American public policy. The society that created the current system well over a century ago saw the rivers of the American West through a particular lens: Water was a commodity that needed to be removed from the river channel and "put to use." Water left wild and flowing in the channel was "wasted." Extravagant government expenditures to impound and transport water were justified in the name of "conservation."

This single-minded focus on the extraction of water at any cost was overwhelmingly successful in achieving the objectives of official nineteenth-century policy: to encourage American citizens to settle the broad, dry, and inhospitable western lands. The federal and state governments made western water development—dams, reservoirs, transmountain tunnels, pipelines, and canals—a first-line priority and laid out a sprawling program of subsidies that led to engineering triumph after engineering triumph. The human effort and ingenuity were extraordinary, and the benefits were many, whether measured by solid farm and ranch communities, construction jobs, or the museums and symphonies of the region's urban centers.

Today's westerners expect some of the same things from the rivers of the West—farms, ranches, mines, and shining urban centers—but they also expect much more, for the region has become a very different place. The end of World War I I marked the beginning of an era every bit as important as the California gold rush. The postwar population in the West boomed from 19 million to 51 million. This influx of newcomers, along with larger national and global economic and environmental trends, has created a new context. Today, the public treasuries are stretched thin. People increasingly appreciate the great stresses facing all of our natural resources, water included; they see that long-term sustainability is in jeopardy.

There are other new perceptions. Westerners now view water as more than a commodity. They see western rivers and lakes, like the mountains, forests, and wide-open spaces, as public assets of inestimable value. By and large, today's populace came west, not to wrestle an existence out of a harsh land, but to capture the privilege of living, working, and raising their families in a blessed place. To do that requires some water development, but it does not require the radical posture that water policy adopted and has held since the middle nineteenth century.

The western water regime has caused serious, deeply embedded problems. The most pressing problems—for example, vanishing Pacific salmon in Washington, overtapped groundwater in Arizona—may vary, and the severity may differ, but all western states share the essential commonality of aridity and scarcity when it comes to water. That is logical and inevitable, for water policy in every western state traces to the same era and the same attitudes.

While there is no definitive, formal, West-wide inventory of the region's mounting water problems, some current vignettes may help suggest the magnitude of the difficulty. To be sure, there are success stories, and we will recount many of them in this book. In our judgment, however, the necessary starting point is to understand the depth of the chasm between western water policy and what the modern West demands of it. The following episodes, like many others that we will describe in the pages to come, represent the West's challenges:

• The National Marine Fisheries Service, warning that 100 stocks of salmon and steelhead have become extinct and that most of the remaining runs are in danger, has put the chinook salmon and four other runs on the threatened species list for most of the rivers of Washington, Oregon, and Idaho. In 1991 the American Fisheries Society expressed concern for the survival of 214 native naturally spawning salmon and steelhead stocks in California, Oregon, Washington, and Idaho.

• In the early 1980s thousands of birds were poisoned in the Kesterson National Wildlife Refuge by irrigation drainage waters tainted with toxic levels of selenium leached from the waterlogged fields of California's Central Valley Project, a federally financed water supply project that has encouraged large expansion of irrigated agriculture in the San Joaquin Valley.

• The future of the Pyramid Lake Band of Paiute Indians is in jeopardy because it depends on the fate of Pyramid Lake and its fishery. Beginning in the early twentieth century, a federally subsidized dam and canal system began diverting more than half of the water from the Truckee River in Nevada to another watershed to grow alfalfa. Congress has approved a last-ditch attempt to resuscitate the Truckee River system, recognizing that insufficient water remains in the Truckee to stabilize Pyramid Lake, which has no other source and has already dropped 70 feet and lost one-fourth of its surface area. The cui-ui, a fish species unique to the Truckee River—Pyramid Lake system, is on the federal threatened species list, and the Lahontan cutthroat trout survives only through a hatchery program.

• Beaches deep in the Grand Canyon—sand deposited perhaps a millennium ago—are being scoured away by bursts of water released from Glen Canyon Dam to generate cheap electric power during the hours of the day when it is most in demand in southwestern cities. With the sand goes the habitat of plants, animals, and fish, as well as recreational opportunities for thousands of people.

• In 1961 an international incident erupted when Colorado River water delivered to Mexico under a treaty became too salty to irrigate crops after being used north of the border. In response, the United States has spent a billion dollars on salinity control measures, half of that sum for a desalination plant to clean up water spoiled by irrigation and return it to the river. These measures were intended to avoid any reduction in irrigation in the United States, but the Bureau of Reclamation estimates additional palliatives will be needed in less than a decade.

• Stretches of Montana's blue-ribbon Gallatin River are drained dry each summer by irrigation in spite of the area's heavy economic dependence on recreation from West Yellowstone to Bozeman.

• According to the U.S. Geological Survey, ancient Ogallala Aquifer, underlying eight states (Wyoming, Colorado, South Dakota, Nebraska, Kansas, Oklahoma, Texas, and New Mexico), is in dire jeopardy. The nation's largest deposit of groundwater could be depleted, its stores beyond the economic reach of most pumpers, in only sixty years.

• A 1992 Wyoming state court ruling prevents the tribes of the Wind River Reservation from dedicating the reservation's water rights (though recognized in 1988 as being the oldest and largest in the watershed) to maintain and restore natural streamflows. This means that trout populations managed by the tribal wildlife department cannot be rehabilitated to meet the growing demands for recreation on the eastern side of the Wind River Range. Meanwhile, nearby non-Indian irrigators extract Wind River water and, like growers across the West, pour it on their fields in profligate amounts, using outmoded flood irrigation methods that are wasteful and inefficient by any modern standard.

• Metropolitan Denver has obtained water rights on rivers in western Colorado without making any payment to the state or federal governments, and has transported the water under the Continental Divide for urban use, away from communities on the Western Slope. Half of all the water in the Denver area, as in other cities in the West, is used for lawns and other exotic landscaping.

These and similar episodes throughout the West are explained by the narrow perspective of traditional western water law. Water policy shuts out large segments of the population and, with them, a set of ideals for how water should be used. Rigid patterns of water allocation that made sense generations ago now create divisiveness, bad economic results, and destruction of aquifers, rivers, lakes, and wildlife. The outmoded way of governing water fails to respond to the whole community.

Thinking of a "community" evokes an image, usually of a geographic community, a collection of people living in proximity to one another. Community in this sense is critical to water policy, for water is essential for the close-knit, prosperous, and lasting communities that westerners are determined to create. Yet western water policy has developed only the most rudimentary means for addressing the varied and changing needs of geographic communities.

But there are other types of communities—communities composed of people, wherever located, with shared interests in an issue or a resource. Water, more than any other resource, has encouraged the formation of many diverse kinds of communities of interest. Water communities have included groups of rural irrigators, real estate interests, and boaters and anglers, for example. Sometimes a single individual identifies with several different communities. Many of these communities—some well established and some still emerging—express increasing dissatisfaction with how water decisions are made.

In modern water policy decisions it is important to recognize the breadth of communities of interest. The demands of the Seattle and Portland metropolitan areas for low-cost power from hydroelectric dams affect commercial fishers and their customers from Alaska to British Columbia to Northern California; Indian tribes with treaty-guaranteed fishing rights on nearly every river system in the Pacific Northwest; sportsfishers (and the economies that have grown up around them) from the coast of Alaska to the interior of Idaho; irrigators and electric rate-payers in Oregon, Washington, Idaho, Montana, and Canada; and people the world over who visit, or plan to visit, the wondrous rivers of the Northwest.

The same is true in other metropolitan areas. Because Denver's reach extends far beyond its political boundaries, the city's desire for water for urban growth affects competitors for water development from Nebraska to Southern California to the state of Sonora in Mexico. Also affected are citizens of the United States and the world who treasure the in-river values from the Rocky Mountain snowmelt that carves and enlivens the deep redrock canyons of Colorado, Utah, and Arizona, all of which are impacted by Denver's water use. The sweep of the communities of interest of Seattle, Portland, and Denver is matched or exceeded by that of Los Angeles, Las Vegas, and Phoenix. The range is substantial, too, for western cities such as Tucson, Albuquerque, Las Vegas, Reno, Boise, Colorado Springs, and Salt Lake City.

Just as the geographic reach of communities of interest has broadened, so too the membership within water communities has expanded far beyond the small number of interest groups that structured western water policy in the last century. The Clark Fork and Milk River in Montana, the Big Horn and North Platte in Wyoming, the Sevier and Duchesne in Utah, the Umatilla and Deschutes in Oregon, the Pecos and Chama in New Mexico, and other western watersheds all implicate more diverse communities than ever before. Today's community of interest is likely to include—in place of the old miner-farmer-rancher-industrial coalition that made western water policy—citizens determined to reduce government expenses; Indian tribes; residents opposed to continued rapid growth in their geographic communities; environmentalists; citizens who want western rivers, lakes, and aquifers managed to guarantee sustainability for their children and grandchildren; recreationists of all stripes; businesspeople whose livelihoods depend on the West's emerging recreation economy; and those who simply believe, fervently, that western rivers should be allowed to retain the incomparable, eternal qualities that provide so much inspiration, reflection, and fulfillment.

All of these and other identifiable interests need to be represented in modern water policy, and in most watersheds nearly all of them are already clamoring for recognition. They will be heard, one way or another.

In light of this groundswell of concern and interest, it is not surprising that reform efforts have begun to emerge in the states and at the regional and federal levels. These efforts are important and show a determination to increase public participation, to add measures for environmental protection, and to face up to economic realities. Most western water proceedings now take public values into account in some way.

But these responses are incomplete, still in their infancy. The changes affect only some newly granted rights and rarely touch thousands of water rights that grew up under the traditional system. The initiatives have yet to set serious standards for water conservation. For example, instream flow programs, while promising, have had little impact on most rivers. The reform effort still has not come to grips with the critical issue of sustainability, scarcely acknowledging that many aquifers are declining and that heavy extractive uses draw down many rivers, or dry them up completely, so that they hardly can be considered rivers. Many economic issues remain unresolved. In short, despite beginning reforms, western water policy fails to require or encourage efficient, equitable, and ecological uses of water.

We have structured this book by, first, tracing the evolution of the uses of western water, exploring the special qualities of the waters of the West, describing the changing West, and identifying the many contemporary communities of interest and the varied ways in which they view and care about water. The first five chapters, in other words, are not about "policy" or "law" but are about water and its relationship to people. Then, in the final three chapters, we describe our vision of how decision making might be opened up in order to accommodate the views and needs of the whole community. Our approach is in no way Platonic. Rather, it suggests a realistic process of phasing out the aberrations of western water policy, preserving the useful contributions, and returning to first principles. It is a matter of searching out the truest headwaters.