Monday, July 20, 2015


Original Story:

The Colorado River begins as snowmelt in the Rocky Mountains and ends 1,450 miles south in Mexico after making a final sacrifice to the United States: water for the farm fields in this powerhouse of American produce.

Throughout the winter, perfect heads of romaine, red-and-green lettuce, spinach and broccoli are whisked from the warm desert soil here onto refrigerated trucks that deliver them to grocery stores across the continent. If you eat a green salad between Thanksgiving and April, whether in Minnesota, Montreal or Modesto, odds are good that some of it was grown in or around Yuma. A Houston water rights lawyer is following this story closely.

The summer freshness on all of those winter plates reflects the marvel of engineering the Colorado has become — and why managing the river in the Southwest's changing landscape seems so daunting.

The Colorado is suffering from a historic drought that has exposed the region's dependence on a single, vulnerable resource. Nearly 40 million people in seven states depend on the river, a population some forecasts say could nearly double in the next 50 years.

The drought, now in its 16th year, has made one fact brutally clear: The Colorado cannot continue to meet the current urban, agricultural, hydroelectric and recreational demands on it — and the point at which the river will fall short could come sooner than anyone thought.A San Antonio water rights lawyer represents clients in issues that arise int he water rights litigation context, in mediation, arbitration, and trial in state and federal courts.

The Colorado River Basin

That is true even after an unusually wet spring in the Rocky Mountains, where runoff feeds the Colorado and its tributaries.

In the decades to come, federal officials say, significant shortages are likely to force water-supply cutbacks in parts of the basin, the first in the more than 90 years that the river has been managed under the 1922 Colorado River Compact. A Fairfield County natural resources attorney represents clients in water rights issues.

They would not apply evenly. In Arizona, which would take the steepest cuts, officials are warning that the elaborate conservation measures and infrastructure put in place in the 1980s to guard against shortages will probably not be sufficient. As the drought continues, serious shortages and more severe cutbacks have become more likely.

Farmers who grow cattle feed and cotton in central Arizona could be forced to let fields lie fallow, maybe for good, and cities like Phoenix might have to begin reusing wastewater and even capping urban growth, the region's economic engine.

Here in Yuma, though, there may be no cuts at all. Thanks to the seemingly endless idiosyncrasies of the rules governing the Colorado, much of metropolitan Phoenix could theoretically become a ghost town while Yuma keeps planting lettuce in the desert.

The looming shortages have opened a contentious new conversation here in Arizona, with increasing calls for rethinking the way the state divides the water it also shares with six other states, including California. Some experts say that a recalibration is in order — that while it may not make sense for millions of people to live in the arid West, people should take precedence over growing leafy greens on an industrial scale.

In a 2013 study, the Bureau of Reclamation suggested transferring about a million acre-feet of water from farms. Academics say it is only a matter of time before agriculture is forced to yield some of its supply — and that farmers could benefit financially from such transfers.

That kind of talk is rattling farmers in Yuma. They know they have water priority but not necessarily political priority.

"They believe there's a target on their backs," said Tom Buschatzke, who leads the Arizona Department of Water Resources. "I believe they're right."

Farmers here do not intend to go quietly. Some come from families that were here when the big cities of the modern Southwest were little more than crossroads.

"We have a legal right to this," said Mark Smith, who farms about 500 acres in Yuma and leads one of six irrigation districts in the area. "The guys who say this is an easy fix — it's not an easy fix. We're growing vital crops."

"This is a national debate," Smith added, "because we're supplying the entire nation."

Few rivers are asked to work as hard at the Colorado. Ranchers in western Colorado use the river to water pastures for beef cattle, while Denver and its suburbs channel it east across the mountains to enable city living. Las Vegas and other southern Nevada communities draw up to 90% of their water from the Colorado. Hoover Dam and others convert its flow into power. After Arizona and California take their share, the river exits — evaporates, really — through the dry remnants of a delta leading to the Gulf of California.

If a shortage is declared, California is one state that would not face any immediate cutbacks, thanks to an agreement reached with Arizona in 1968. That pact allowed Arizona to build one of the nation's most ambitious water-supply systems, the Central Arizona Project, but it also ensured that much of Arizona would take steep cuts if a shortage is declared.

Yuma is an exception.

Wedged into a wrinkle of borderland between California and Mexico, farms here have been drawing water from the Colorado since the late 19th century. Their early presence here earned the area the most-senior water rights in Arizona and some of the most-senior in the basin. Of the approximately 15 million acre-feet of water allocated for use each year across the entire basin, about 1 million acre-feet — nearly 7% of all of the water — goes to just 150,000 acres of farmland here.

By comparison, the 5 million water users in Phoenix and Tucson share about 1.5 million acre-feet. California has rights to the largest share, 4.4 million acre-feet, and even under the most dire scenarios it is virtually certain to always receive it. The law of the river says so. A Denver natural resources lawyer is reviewing the details of this case.

Yet even as parties in the basin are often wary of one another — and not equal partners — most emphasize the need to work together under the current rules. The alternative, some fear, is that the federal government will intervene.

"There are many who have advocated for years that you have to change it significantly," said Wade Noble, a lawyer for the Yuma County Agricultural Water Coalition. "We, of course, resist that because with our priority we benefit from the [current] law the most."

In February, Noble helped draft a report by the coalition intended as a preemptive strike against anyone eyeing Yuma water. In it, Yuma leaders argue that the region has become more productive and profitable while also reducing its water use as it has shifted its focus to winter vegetables over the last four decades.

Yet the region still uses an extraordinary amount of water. High soil salinity has led farmers to flood fields in an attempt to wash salt away from fragile roots, then provide more water for irrigation. And in an era seeing the rise of seasonal, locally grown foods, Yuma strikes some as emblematic of old ways of thinking about what people should eat and when.

Then again, farmers in Yuma say cities have been allowed to grow with little concern for the water required to sustain them. They note, too, that most of their crops align with a growing emphasis on healthful eating.

"They are doing a lot of things right," said Robert Glennon, a law professor at the University of Arizona who specializes in water issues.

But Glennon has also warned that Yuma farmers and others in the arid West may have only so much control over their fate — a lesson farmers in parts of California, dependent on other rivers, are learning during the historic drought there. He has encouraged farmers to reduce production so they can sell or lease a portion of their water rights to cities. Research shows that a cut of just 4% in certain agricultural areas could increase the water supply by 50% for some cities, he said. An Austin water rights lawyer regularly assists water districts, municipalities, industry, and landowners in all aspects of water law.

Farmers here say the entire region was settled on an ethic of national service. The Bureau of Reclamation began building canals feeding off the Colorado in the first years of the 20th century.

Edward C. Cuming arrived in the summer of 1902, an Irishman who had first migrated to Alberta, Canada, before moving south. Cuming homesteaded 160 acres just south of Yuma, irrigating them with the new canals. The Depression forced him to sell 40 acres but also led to a new era of government support for the area.

The Civilian Conservation Corps, established by President Franklin D. Roosevelt, expanded and improved irrigation canals across the Yuma area. One of those channels, stamped "CCC 1940," is known as the Cuming Canal. It runs directly in front of fields now owned by Edward Cuming's grandson, Jim Cuming.

"When we had an abundant supply of water, the farmer was doing a great job," said Cuming, 77, sitting on a concrete culvert above the Cuming Canal while cloudy Colorado River water surged beneath him.

"Now all of a sudden he's a villain because he uses too much to produce your fruit and fiber."

Tuesday, July 14, 2015


Original Story:

Every columnist has his or her “go to” sources, people we rely on for their deep understanding of a particular subject, and a mode of thinking about that subject we find persuasive. For me, one such person is Michael Levi, a senior fellow for energy and the environment at the Council on Foreign Relations. An Austin energy lawyer is following this story closely.

Levi believes in the power of facts. Though sensitive to the importance of dealing with climate change, he doesn’t indulge in the hyperbole that you sometimes hear from environmentalists. And while he appreciates the economic import of fracking and shale gas, he isn’t afraid to call out the industry on its problems. Early in the fracking boom, he went to Pennsylvania to observe what drilling for shale gas was doing to communities — and came away believing that “it was going to stir up much more local controversy than many were assuming.” Which is exactly what happened.

For the latest issue of Democracy, a quarterly magazine focused on progressive ideas, Levi has written an article titled “Fracking and the Climate Debate,” which he described to me the other day as a kind of summing up of his views about the role of cheap natural gas and fracking in the fight against climate change. A Tulsa energy lawyer represent clients in energy matters including drilling contracts, fracking, mineral rights, and renewable energy disputes.

There are many people, of course, who believe that natural gas shouldn’t have any role at all in the climate change fight; while it may emit half the carbon dioxide of coal, it is still a fossil fuel that will keep us from going all-in on renewable energy. And the methane that can leak from fracked wells is a potent greenhouse gas that can negate natural gas’s advantage over coal.

There are others who see natural gas as a panacea. They believe that so long as we keep increasing production of inexpensive natural gas — mooting the need to build more coal-fired power plants, and even making it possible to shut some down — then we will be doing more than enough to control carbon emissions. In his article, Levi says, in effect: You’re both wrong. A Baton Rouge energy lawyer provides professional legal counsel and extensive experience in many aspects of energy law.

After recounting a little history — was it really only a half dozen years ago that environmentalists like Robert F. Kennedy Jr. were promoting natural gas as a “step towards saving our planet”? — Levi delves into the three rationales behind their abrupt change of heart. One is the disruption that fracking imposes on communities. The second is the methane problem. The third is the “rapid progress” being made by renewable energy, which many environmentalists believe makes further reliance on natural gas unnecessary.

Levi believes that appropriate rules by both state and federal governments can mitigate the first two problems. Indeed, he believes that the industry needs to be better regulated for its own sake; otherwise, people will continue to fear the worst. As for renewables, the hard truth is that if the country were to move away from natural gas, the big winner would be coal, not solar or wind.

But that doesn’t mean that those who cling to the “free-market fundamentalist dream that a thriving shale gas industry will make climate policy unnecessary” have got it right. On the contrary, writes Levi, “merely making natural gas more abundant may do little, if anything, to curb carbon dioxide emissions.” How can this be? The answer is that, although cheap natural gas is helpful in that it “shoves aside coal,” it also boosts economic growth (which means more emissions), and “gives an edge to industries that are heavy energy users and big emitters.” These two conflicting forces effectively cancel each other out.

The best way to maximize the good that shale gas can do, concludes Levi, is to make it a key component of an overall energy policy that is bent on driving down carbon emissions. The government could promote policies to move the country away from coal, “which accounts for three-quarters of carbon dioxide produced in U.S. electricity generation.” A San Antonio energy lawyer represents clients in fee mineral and royalty transactions, in negotiating the terms of seismic permits, option agreements, oil and gas leases, easements, and surface and subsurface use agreements, as well as in uranium leasing transactions.

And while he doesn’t say so explicitly, he does seem to see shale gas as a potential bridge to renewables: If the government enacted policies that “reward emission cuts” no matter what technology achieves that goal, then coal users would gravitate to natural gas, while natural gas users might well move toward renewables. Government would also have to encourage policies that “drive down the cost of zero-based emissions.”

My own belief is that shale gas has been a blessing for all kinds of reasons: It has given us a degree of energy security that we haven’t seen in many decades, and has been a key source of economic growth. And, no matter how much environmentalists gnash their teeth, it is here to stay. That’s why the responsible approach is not to wish it away, but to exploit its benefits while straightforwardly addressing its problems. Ideologues will never get that done. That’s why Michael Levi’s realism — and his pragmatism — are so critical to hear.