Reclamation identifying wells that pump river water without legal entitlement

It is no doubt a sign of the drought-struck times that efforts to strictly account for lower Colorado River water use are now focusing on individual landowners and homeowners who have drilled wells and pump water along the lower Colorado River. Up to now, efforts to regulate Colorado River water use have mainly been directed at the big water users: states, Indian nations and irrigation districts.

Collectively these small-scale water users, most of whom are householders taking care of domestic water needs, consume a significant amount of Colorado River water, an amount estimated at between 9,000 and 15,000 acre feet. Most of this water is pumped from the floodplain but also includes water pumped directly from the river.
Water laws violated

The U.S. Bureau of Reclamation is concerned since much of this water is being taken without an entitlement. In other words, many of these water users are violating water law by drilling wells that draw water from the Colorado River. The water they pump and consider groundwater for the taking may, in fact, be subflow of the Colorado River. Who uses Colorado River water and the amount consumed is strictly regulated.

The hard-and-fast law is an individual cannot divert water from the river without a legal allocation. Pumpers illegally using Colorado River water need to legitimize their water use by complying with laws regulating use of the river. Reclamation has proposed rules to ensure better water accounting.

"Reclamation is legally obligated to ensure that all Colorado River water use in the Lower Basin is covered by an entitlement and correctly accounted for..." said Lorri Gray, the Lower Colorado Region?s Regional Director. "If someone is using Colorado River water without an entitlement, that harms the entitlement holders in Arizona, California and Nevada who do have one, so this proposed rule is necessary and appropriate."

Individual pumpers targeted
This focus on individual pumpers is a logical outcome of stricter water-use accountability taking place along the river. More accurate accountability of water use is the order of the day as the seven Colorado Rivers states ponder strategies to make the resources of a drought-beleaguered Colorado River go further to meet their needs during a period of unprecedented shortages. In brief, every well and river pump counts.

And Reclamation is counting and inventorying the pumps. Charged with providing detailed and accurate records of diversions, return flows, and consumptive use of water diverted from the mainstream of the Colorado River below Lee Ferry, the agency is establishing a procedure for identifying which pumpers are unlawfully using lower Colorado River water. The agency will then know who is using how much water and will be able to offer options to enable users to legitimize their water use.

Reclamation commissioned the United States Geological Survey to develop a method for identifying wells that are pumping groundwater that result in water being drawn from the lower Colorado River. (See insert in this newsletter for a description of the USGS methodology.) USGS is now using the method to inventory wells pumping water from Colorado River aquifer in Arizona, California and Nevada. Although USGS is inventorying every well and river pump that can be located, Reclamation is only concerned with the wells and river pumps that are withdrawing water.

As of September 2008, 3,338 withdrawal wells have been inventoried. The USGS well inventory is approximately 80 percent complete at this time.

Well owners notified
"To determine if these wells are pumping Colorado River water is our job." says Ruth Thayer, Reclamation Group Manager, Water Conservation and Accounting. Rules are now in the making to set the criteria. Thayer says that one of the primary objectives of the rule-making process is to set the aquifer boundary and the methodology to determine the source of the water being pumped. "Once we determine if the wells are using Colorado River water, the next step is to determine whether the use is covered by an existing entitlement."

Water is a highly charged issue, and targeted water users are likely to feel nervous if they feel their water supply is threatened or even questioned. Reclamation is making a special effort to reassure them that they have little to fear from the agency's actions.

Thayer says, "We went out in the fall and conducted public meetings, outreach and education, letting folks know what we are doing and to provide as much transparency as possible to the public and the districts."

She says responses ranged from those anxious to do what they need to do to obtain a permanent water supply to the other end of the spectrum, with some claiming their water is their own concern. "For the most part most members of the public have been cooperative in having their wells inventoried. ... We are doing everything we can to make this a minimal amount of burden on them and have the least amount of impact."

Options available
Several options are available to well owners found to be illegally pumping. Obtaining an individual water right to Colorado River water would put them legally above board. Such rights are available, at least in Arizona, which has about 10,000 unallocated feet of Colorado River water. Also membership in an existing water district or purchasing water from a city or other provider with such water rights would serve the purpose.

In California, a state with no unallocated Colorado River water, Reclamation has established the Lower Colorado River Water Supply Project. Its purpose is to exchange non-river water for Colorado River water in order to supply impacted well owners on the California side of the river.

If found in violation of federal law, Arizona water users along the Lower Colorado River may not be breaking state law, demonstrating, once again, that consistency is not always a hallmark of water law. Arizona law does not effectively recognize the connection between groundwater and surface water flow; the federal government?s enforcement along the lower Colorado River, however, acknowledges that such a connection exists.

Also in reference to Arizona law, most of the wells receiving federal scrutiny would be defined as unregulated wells, requiring a permit but without any obligation to report the amount pumped, providing less than 35 gallons per minute is pumped. This is about 50,000 gallons per day.