Framing water policy in a carbon affected and carbon constrained environment

Natural Resources Journal

Volumn 50, Issue 1, 2010, Pages 3-70

  Abrams, Robert H ^a   Hall, Noah D ^b  

^a FLORIDA A AND M UNIVERSITY   (United States)

^b WAYNE STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CLIMATE CHANGE; ENERGY POLICY; ENVIRONMENTAL POLICY; FOOD SECURITY; GREENHOUSE GAS; POLICY ANALYSIS; RESOURCE ALLOCATION; WATER AVAILABILITY; WATER DEMAND; WATER PLANNING; WATER RESOURCE; WATER STRESS; WATER SUPPLY; WATER USE;

EID: 78649803270     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (339)

1. It is tempting to object that the Apalachacola-Chattahoochee-Flint (ACF) and Alabama-Coosa-Tallapoosa (ACT) disputes undermine the assertion in the text, but by western water dispute standards these cases are still young, and, more tellingly, the participants are inexperienced.
2. See, e.g., Robert Haskell Abrams, Settlement of the ACF Controversy: Sisyphus at the Dawn of the 21st Century, 31 HAMLINE L. REV. 679 (2008). These cases are discussed infra, at Part III.A. Contrast with the ACF and the ACT the stability of the Delaware River Basin Compact and Susquahenna River Basin Compact in the East, and recent progress on the Colorado and Columbia in the West, and the claim of the text rings true.
3. See, e.g., Morton J. Horwitz, The Transformation in the Concept of Property in American Law: 1780-1860, 40 U. CHI. L. REV. 248 (1973)
4. Robert H. Abrams, Charting the Course of Riparianism: An Instrumentalist Theory of Change, 35 WAYNE L. REV. 1381 (1989). But cf., KARL WITTFOGEL, ORIENTAL DESPOTISM: A COMPARATIVE STUDY OF TOTAL POWER 15-18 (1957) (water supply necessity having a determinative role on social organization).
5. Water for dispersed populations is of equal importance, but it is seldom problematic. Most locales, even most arid ones, have sufficient water resources to support small numbers of people at low densities.
6. The part that is less congruent with most current examples of M & I use is a requirement of stringent conservation, particularly in regard to limits on landscape irrigation.
7. See, e.g., J.B. Ruhl & James Salzman, The Law and Policy Beginnings of Ecosystem Services, 22 J. LAND USE & ENVTL. L. 157 (2007).
8. There are exceptions, such as the in-migration into the Las Vegas, Nevada, area. But widespread regional growth of the West is spurred by the desire of new residents, increasingly joined by existing residents, to protect and preserve the ecological foundation and environmental quality of the region.
9. See infra note 133 and accompanying text (discussing issues created by U.S. foreign energy dependence).
10. Water withdrawn is the total amount of water taken from the natural source. Of this total, water consumed is the portion of the withdrawal lost or otherwise not returned to the natural source due to evaporation, incorporation into products, or other processes. Consumptive use can be far less than the total withdrawal. Estimated consumptive-use rates vary by water use sector. One study from the Great Lakes region shows that consumptive- use rates range from 1 to 2 percent for many power plants, to 10 to 15 percent for public water supplies, to 70 to 90 percent for agricultural irrigation.
11. See GREAT LAKES COMM'N, TOWARD A WATER RESOURCES MANAGEMENT DECISION SUPPORT SYSTEM FOR THE GREAT LAKES-ST. LAWRENCE RIVER BASIN 60 (2003), available at http://www.glc.org/wateruse/wrmdss/finalreport.html (last visited July 21, 2010).
12. Additional freshwater can be produced by techniques such as desalination of seawater. This is technologically feasible, but the cost of producing that water is sufficiently high that only municipal supply and a small number of industrial uses can bear the cost. The cost is largely a function of the energy required for desalination. Desalination requires 2,500 to 15,000 kilowatt hours to produce an acre-foot of water.
13. SUSAN E. PANTELL ET AL., CAL. COASTAL COMM'N, SEAWATER DESALINATION IN CALIFORNIA Ch. 1 (1993).
14. The city of Santa Barbara's desalination plant is relatively energy efficient, and still its energy requirement of 50 million kilowatt hours per year to produce 7,500 acre-feet of water is two to three times as much as that required to pump the same amount of water from the Colorado River Aqueduct or the State Water Project to the Metropolitan Water District of Southern California. Id. A more recent proposal from San Clemente, California, known as the Dana Point Ocean Desalination Project, is expected to produce freshwater at a cost of $1,287 per acre-foot.
15. See Norb Garrett, A Desalination Plant for San Clemente?, SAN CLEMENTE TIMES, Apr. 23, 2008, available at http://www.sanclementetimes.com/view/full_story/6696518/article-A-Desalination-Plant-for-San-Clemente-? (last visited July 21, 2010).
16. California has reached a bipartisan deal to spend almost $10 billion on new water storage and conveyance projects (the deal also includes some good water conservation and ecosystem restoration initiatives). See Press Release, State of California, Office of the Governor, available at http://gov.ca.gov/press-release/10148/(last visited July 21, 2010).
17. V.L. MCGUIRE, U.S. GEOLOGICAL SURVEY (USGS), WATER LEVEL CHANGES IN THE HIGH PLAINS AQUIFER, PREDEVELOPMENT TO 2005 AND 2003 TO 2005 SCIENTIFIC INVESTIGATIONS REPORT 2006-5324 7 (2007), available at http://pubs.usgs.gov/sir/2006/5324/pdf/SIR20065324.pdf.
18. P.C.D. Milly et al., Stationarity Is Dead: Whither Water Management?, 319 SCI. 574, 574 (2008), available at http://www.gfdl.noaa.gov/reference/bibliography/2008/pcm0801.pdf.
19. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (IPCC), CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS, CONTRIBUTION OF WORKING GROUP I TO THE FOURTH ASSESSMENT REPORT OF THE IPCC (AR4) 1-18 (2007)
20. IPCC, CLIMATE CHANGE 2007: CLIMATE CHANGE IMPACTS, ADAPTATION AND VULNERABILITY, CONTRIBUTION OF WG II TO AR4 1-16 (2007).
21. See, e.g., P.C.D. Milly, K.A. Dunne, & A.V. Vecchia, Global Pattern of Trends in Streamflow and Water Availability in a Changing Climate, 438 NATURE 347 (2005).
22. See generally Noah D. Hall, Bret B. Stuntz & Robert H. Abrams, Climate Change and Freshwater Resources, 22 NAT. RESOURCES & ENV'T (Winter 2008).
23. Much precipitation evaporates shortly after falling because the moisture that is subject to evaporation covers a far greater area immediately after hitting the surface, before it has infiltrated into the ground or traveled into confined surface channels.
24. Philip W. Mote et al., Declining Mountain Snowpack in Western North America, 86 BULL. AMER. METEOR. SOC. 39, 44 (2005).
25. MICHAEL KIPARSKY & PETER H. GLEICK, CLIMATE CHANGE AND CALIFORNIA WATER RESOURCES: A SURVEY AND SUMMARY OF THE LITERATURE 25 (2003).
26. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: CLIMATE CHANGE IMPACTS, ADAPTATION, AND VULNERABILITY, CONTRIBUTION OF WORKING GROUP II TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 633 (2007).
27. Projections reaching further out in time are even more dire. See Hall, supra note 16, at 31. By 2069, snow cover in California may be almost completely depleted by the end of winter.
28. See KIPARSKY and GLEICK, supra note 19, at 11. By the end of the 21st century, snowpack volume is expected to decrease by as much as 89 percent for the Sierra-Nevada region draining into the Sacramento-San Joaquin river system.
29. Katharine Hayhoe et al., Emissions Pathways, Climate Change and Impacts on California, 101 Proc. Nat. Acad. Sci. 12422, 12425 (2004).
30. BRAD UDALL, RECENT RESEARCH ON THE EFFECTS OF CLIMATE CHANGE ON THE COLORADO RIVER, INTERMOUNTAIN WEST CLIMATE SUMMARY 2, 6 (2007).
31. See Hall, supra note 16, at 30.
32. T. ALLISON & F.J. CALZONETTI, U.S. DEP'T OF ENERGY, THE ROLE OF AMENITIES AND OTHER FACTORS IN INFLUENCING THE LOCATION OF NONMANUFACTURING INDUSTRY IN THE UNITED STATES 10-11, 13 (1992), available at http://www.osti.gov/bridge/servlets/purl/138371-iasyuh/138371.pdf (giving examples of factors affecting the location of nonmanufacturing industry, such as, population density, transportation costs and access to labor markets).
33. PETER ANNIN, THE GREAT LAKES WATER WARS 68-69 (2006) (discussing the cost of transporting water from the Great Lakes to the Ogallala aquifer).
34. Economic growth may be either associated with growth in population (services, infrastructure, etc.) or it may be independent (new technologies, newly discovered resources, etc.).
35. This term is not a term of art, it is meant to be purely descriptive of a methodology that seeks to predict a future level of water use/demand by extrapolation from past trends in a type of water use/demand, making adjustments for foreseeable influences on water use in that sector.
36. WATER DEMAND FORECASTING 73-76 (1990).
37. The per capita use figures used here are derived from the USGS data by taking the total of municipal supply water plus the total rural domestic use water and dividing by the total population. See HUTSON ET AL., USGS, ESTIMATED USE OF WATER IN THE UNITED STATES, 2000 U.S. GEOLOGICAL SURVEY CIRCULAR 1268, 40 (2004) [hereinafter 2000 USGS Report], available at http://pubs.usgs.gov/circ/2004/circ1268/pdf/circular1268.pdf.
38. Such a change is possible with stringent conservation, especially conservation measures that reduce the amount of municipal supply used on landscape irrigation. As noted below, such change is likely only possible in regions where there is a marked water shortage.
39. PETER H. GLEICK ET AL., THE WORLD'S WATER 2008-2009: THE BIENNIAL REPORT ON FRESHWATER RESOURCES 6 (2009).
40. HUTSON ET AL., supra note 29.
41. See id. at 5.
42. WAYNE B. SOLLEY ET AL., USGS, ESTIMATED USE OF WATER IN THE UNITED STATES, 1995 U.S. GEOLOGICAL SURVEY CIRCULAR 1200, 19 (1998) [hereinafter 1995 USGS Report], available at http://water.usgs.gov/watuse/pdf1995/html (last visited July 21, 2010).
43. Clean Water Act, 33 U.S.C. §§ 1251-1387 (2000).
44. See Deborah S. Lumina et al., Summary of Water Use in the United States, 2000, U.S. GEOLOGICAL SURVEY FACT SHEET 2005-3051, http://ga.water.usgs.gov/edu/wateruse2000.html (last visited July 21, 2010) ([s]elf-supplied industrial is the only category to decline consistently during the past two decades).
45. See also HUTSON ET AL., supra note 29, at 29.
46. See HUTSON ET AL., supra note 29, at 42.
47. See HUTSON ET AL., supra note 29.
48. The 1995 USGS Report was the last to compile consumptive-use figures.
49. See HUTSON ET AL., supra note 29, at 50. The USGS explanation of the change was lack of reliable data, since the data upon which the reports were based were, in many regards, generated by state and local entities.
50. See e-mail from Carole Marlow, Hydrologic Info. Assistant, USGS to Robert Haskell Abrams, Professor of Law, Fla. A & M Univ., College of Law (July 3, 2008) (on file with author). The percentage relationship of the amount withdrawn and the amount consumed is vitally important to a clear understanding of water use patterns and their implications. This article will use the 1995 relationship, the most recent one available in all approximations of post-1995 consumptive use.
51. The USGS defines consumptive use as: the part of water withdrawn that is evaporated, transpired, incorporated into products or crops, consumed by humans or livestock, or otherwise removed from the immediate water environment. This is also referred to as water consumed.
52. HUTSON ET AL., supra note 29, at viii (consumptive-use estimates were included in some previous water use circulars but were omitted for 2000).
53. 2000 Estimated Consumptive Use for each usage category is calculated by multiplying the 2000 withdrawal by the 1995 consumptive-use percent.
54. The 1995 Report of consumptive use combines public supply and domestic usages into a domestic-commercial category for which it reports the 19.2 percent consumptive-use figure. See 1995 USGS Report, supra note 34, at 19, (that report also did not report any data for aquaculture). The columns in Table 1 for 2000 Estimated Consumptive Use and 2005 Estimated Consumptive Use for each usage category were calculated by multiplying the 2000 and 2005 withdrawal by the 1995 consumptive-use percent.
55. See JOAN F. KENNEDY ET AL., ESTIMATED USE OF WATER IN THE UNITED STATES, 2005 U.S. GEOLOGICAL SURVEY CIRCULAR 1344, 7 (1998). As noted in the text, infra at Part IV.A, the consumptive percentage for thermoelectric power has likely increased due to the increasing prevalence of closed loop cooling systems that are more highly consumptive. The usage for industrial, mining, and thermoelectric include both freshwater and saline water withdrawals; all other figures are freshwater only.
56. The consumptive percentage is a function of the type of cooling technology in use. Increasingly, plants are using technologies that withdraw less water but consume a higher percentage of that water. See infra Part IV.A.
57. This figure appears consistently in the USGS reports. Compare, e.g., 1995 USGS Report, supra note 34, at 19, with KENNETH A. MACKICHAN, ESTIMATED USE OF WATER IN THE UNITED STATES, 1955 U.S. GEOLOGICAL SURVEY CIRCULAR 398, 12 (1957), available at http://pubs.er.usgs.gov/usgspubs/cir/cir398 (last visited July 21, 2010).
58. The USGS has never made much effort to quantify this data. In the first of the fiveyear studies it noted, In contrast to withdrawal uses, nonwithdrawal uses do not lend themselves to evaluation in terms of the quantity of water used.
59. KENNETH A. MACKICHAN, ESTIMATED USE OF WATER IN THE UNITED STATES, 1950 U.S. GEOLOGICAL SURVEY CIRCULAR 398, 115 (1951), available at http://pubs.usgs.gov/circ/1951/circ115/htdocs/text.html (last visited July 21, 2010).
60. At that time the scope of in situ uses was cataloged to include navigation, waste disposal, recreation, and conservation of wildlife, which uses were said to have a very large economic value. Id. The broader concept of ecological security was not fully comprehended at that time.
61. Industrial use is no longer computed beginning in the 2000 USGS Report. The small amount involved does not affect the resultant trends.
62. This term is meant as a reminder that in Colorado, Arizona, and Nevada, water that is already appropriated by another is not available.
63. JOSEPH L. SAX ET AL., LEGAL CONTROL OF WATER RESOURCES: CASES AND MATERIALS 32 (2006).
64. Id. at 80.
65. See, e.g., Town of Purcellville v. Potts, 179 Va. 514, 19 S.E.2d 700 (1942).
66. RESTATEMENT (SECOND) OF TORTS §§ 850A, 858 (2009)
67. see also SAX ET AL., supra note 48, at 60.
68. See, e.g., Smith v. City of Brooklyn, 160 N.Y. 357, 54 N.E. 787 (N.Y. 899).
69. See, e.g., N.Y. ENV. LAW §15-0105(5), which states, The acquisition, storage, diversion and use of water for domestic and municipal purposes shall have priority over all other purposes.
70. See, e.g., Schroeder v. City of New York, 371 U.S. 208 (1962) (objecting to notice given by New York City in condemnation case)
71. Wisconsin v. Illinois, 278 U.S. 367 (1929) (objecting to Chicago's diversion of Great Lakes water).
72. Atlanta and the ACF controversy will not be different, although Atlanta is likely to end up with superior claims on a lesser proportion of the supply than it would like to have, growth will be allowed to continue, but far greater conservation will be required.
73. See Robert Haskell Abrams, Settlement of the ACF Controversy: Sisyphus at the Dawn of the 21st Century, 31 HAMLINE L. REV. 679 (2008).
74. See, e.g., Pagosa Area Water and Sanitation Dist. v. Trout Unlimited, 170 P.3d. 307 (Colo. 2007). This case is particularly interesting because of the limits it places on cities' speculative projections of growth.
75. This difference of riparianism and prior appropriation may explain why cities in prior appropriation jurisdictions have not relied heavily on condemnation. The results are the same, the city pays and gets water, but the transaction is voluntarily undertaken by the transferor of the appropriative right.
76. See generally, A. Dan Tarlock & Sarah B. Van de Wetering, Growth Management and Western Water Law: From Urban Oases to Archipelagos, 5 HASTINGS W.-NW. J. ENVTL. L. & POL'Y 163 (1999).
77. See, e.g., Lawrence J. MacDonnell & Teresa A. Rice, Moving Agricultural Water to Cities: The Search for Smarter Approaches, 2 HASTINGS W.- NW. J. ENVTL. L. & POL'Y 27 (1994).
78. See, e.g., Arizona Public Service Co. v. Long, 773 P.2d 988 (Ariz. 1989).
79. See, e.g., AMERICAN SOCIETY OF CIVIL ENGINEERS, REGULATED RIPARIAN MODEL WATER CODE 110 (2003) [hereinafter MODEL WATER CODE]. The MODEL WATER CODE places ecological water flows and levels at a similarly secure footing as domestic use.
80. Id. at 8.
81. For example, in Florida, a state that would be considered a regulated riparian jurisdiction, a group of municipalities has filed a request for an allocation of surface water from the St. Johns River.
82. See, e.g., Steve Patterson, Judge OKs Water Withdrawals from St. Johns, THE FLORIDA TIMES-UNION, Jan. 12, 2009, available at http://culfwww.jacksonville.com/news/metro/2009-01-12/story/judge_oks_water_withdrawals_from_st_johns (last visited Aug.16, 2010).
83. See also N.Y. Comp. Codes R. & Regs. tit. 6, §§ 601, 602.
84. WATER DEMAND FORECASTING, supra note 27, at 73-76.
85. California's population is expected to double or triple over the next century. John Landis & Michael Reilly, How We Will Grow: Baseline Projections of the Growth of California's Urban Footprint Through the Year 2100 (2003), http://iurd.berkeley.edu/catalog/Working_Paper_Titles/How_We_Will_Grow_Baseline_Projections_Growth_Californias_Urban (last visited July 21, 2010).
86. Regional growth in the Portland area is expected to increase water demand by 5.7 billion gallons (20.8 million cubic meters) per year by the 2040s. See Intergovernmental Panel on Climate Change, Climate Change 2007: Impacts, Adaptation, and Vulnerability. Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change 628 (2007).
87. Approximately 20 percent of metropolitan Atlanta's water use is outdoor and seasonal-21 percent of residential and 31 percent of nonresidential (residential is 55 percent of total water use, nonresidential is 27 percent, and unaccounted-for water use (such as leakage) is 18 percent).
88. See THE PACIFIC INSTITUTE, A REVIEW OF WATER CONSERVATION PLANNING FOR THE ATLANTA, GEORGIA, REGION 12 (2006), available at http://www.pacinst.org/reports/atlanta/atlanta_analysis.pdf. Conservation measures could reduce outdoor water use by 24 percent to 80 percent.
89. Id. at 36-37.
90. South Carolina v. North Carolina, 552 U.S. 1254 (U.S. 2008).
91. See Robert Haskell Abrams, Settlement of the ACF Controversy: Sisyphus at the Dawn of the 21st Century, 31 HAMLINE L. REV. 679 (2008).
92. David Emory Stooksbury, Drought Tightens Its Grip on North Georgia (2008), http://georgiafaces.caes.uga.edu/storypage.cfm?storyid=3570 (last visited Mar. 5, 2009) (Lake Lanier, a primary water source for metro Atlanta, is at a record low for mid-November. The previous mid-November record low was at this time last year.)
93. South Florida Water Management District, Lake Okeechobee Hits New Record Low of 8.88 Feet (2007), https://my.sfwmd.gov/portal/page?_pageid=3034,19820229&_dad=portal&_schema=PORTAL (last visited Mar. 5, 2009).
94. In-migration drives economic growth, for example, in the construction and service sectors. In-migration might be spurred by job opportunities, such as a new manufacturing facility or new research center.
95. See Lincoln Davies, Just a Big, 'Hot Fuss'? Assessing the Value of Connecting Suburban Sprawl, Land Use, and Water Rights Through Assured Supply Laws, 34 ECOLOGY L.Q. 1217, 1259-60 (2007).
96. Id. at 1271.
97. Id. at 1272-74.
98. The circumstances in which they will stop growth occur when the community enacting them is politically united in desiring to stop growth and is using assured supply as the vehicle. See Steve La Rue, Babbitt Signs Historic 7-State Water Accord, SAN DIEGO UNIONTRIB., Jan. 17, 2001, available at http://www.waterrights.ca.gov/IID/IIDHearingData/LocalPublish/NWF_Exhibit_9.pdf.
99. The Utah Division of Water Resources reports that on average, Americans use about two-thirds of their water out doors, most of which goes on lawns. Even more disturbing, as much as one-half of this quantity is wasted through incorrect watering. Utah Division of Water Resources, Residential Lawn Watering Guide, http://www.conservewater.utah.gov/agency/materials/guide/Default.asp (last visited Feb. 10, 2009).
100. This purchasing power was on display in the ACF controversy in which Atlanta was able to buy out the hydropower interests that would have been adversely affected by the agreement that Atlanta was seeking to complete with the U.S. Army Corps of Engineers.
101. This estimate is made using the following calculation: 100 gallons per day per capita, so that results in a total of 10 million gallons per day (mgd) of water. This comes out to 11,200 acre-feet of water in a year. An alfalfa crop in that region has a water duty of at least six acre-feet per acre.
102. The value of the water to the farmer in the prior example can be measured as the profit on the alfalfa crop. For example, high yields using four cuttings per year in Colorado max out at 30 tons per acre. The price per ton in Iowa, a large alfalfa consuming state, is approximately $70 per ton. See Calvin Pearson, Western Colorado Alfalfa Variety Performance Test at Fruita 2007, http://www.extsoilcrop.colostate.edu/CropVar/documents/alfalfa/alfalfa_results_fruita_2007.pdf
103. Pricing Forage in the Field 2, http://www.extension.iastate.edu/AgDM/crops/pdf/a1-65.pdf. If profit is 20 percent, a high number, the farmer is making $420 per acre-$70 per acre-foot of water. That pricing, as noted, relies on four cuttings per year-this hypothetical has only one!
104. This figure ignores pumping, piping, or treatment costs.
105. Being more precise, the present cost of water will be the annuitized value of the value of the annual amount. Revenue bonds secured by receipts for water bills in a desert community are a safe investment, even in the current very skittish economic environment.
106. If the golf courses and landscape irrigation are not new uses, their previous water supply is now available for other uses, or, alternatively, the ability to reuse the water will reduce the amount of agricultural water that must be retired.
107. See, e.g., USGS, Groundwater depletion, http://ga.water.usgs.gov/edu/gwdepletion.html (last visited Feb. 10, 2009).
108. The classic example of this scenario is the importation of 68 mgd of Roanoke River water (less than 1 percent of the overall flow and less than 10 percent of the low flow of record) to Virginia Beach.
109. See generally, SAX ET AL., supra note 48, at 97-99.
110. See, e.g., Robert Haskell Abrams, Settlement of the ACF Controversy: Sisyphus at the Dawn of the 21st Century, 31 HAMLINE L. REV. 679 (2008).
111. Stacy Shelton, Water Use Down 20 Percent, ATLANTA J.-CONST., Aug. 12, 2008, available at http://www.ajc.com/metro/content/metro/stories/2008/08/12/water_use.html (last visited July 21, 2010).
112. MODEL WATER CODE, supra note 61, at 54.
113. Id. at 110-11.
114. Id. at 134, 140.
115. A further problem threatening water quality relates to combined sewer overflows in storm events. If these events become more intense, the holding capacity of the urban systems will be inadequate to prevent bypass flows that include the discharge of untreated raw sewage to prevent the flooding of the treatment works, which would result in even more serious sewage discharges and the incapacitation of the plant itself for some period of time.
116. See University of Miami, Rosenstiel School of Marine & Atmospheric Science, Climate Change: When It Rains It Really Pours (Aug. 8, 2008), available at http://www.sciencedaily.com/releases/2008/08/080807144240.htm
117. See generally, Christine A. Klein & Sandra B. Zellmer, Mississippi River Stories: Lessons from a Century of Unnatural Disasters, 60 SMU L. REV. 1471 (2007).
118. Just as importantly, how reservoirs are managed has the potential to impact ecological security. See, e.g., discussion of ACF reservoir and need to mimic natural hydrograph, infra Part III.B.
119. There is a similar tension between using dams to provide water for ecological flows and using them to provide municipal supply. At least superficially, that is a major flash point in the current ACF dispute over the operation of the Corps operated Chattahoochee River dams.
120. See, George W. Sherk, The Corps' Conundrum: Reconciling Conflicting Statutory. Requirements in the ACF River Basin, Proceedings of the 2005 Georgia Water Resources Conference, at the University of Georgia, Athens, GA (Apr. 25-27, 2005), available at http://www.uga.edu/water/GWRC/Papers/SherkJ%20Corps%20Conundrum.pdf.
121. N. LeRoy Poff et al., The Natural Flow Regime-A Paradigm for River Conservation and Restoration, 47 BIOSCIENCE 769, 770 (1997), available at http://www.fs.fed.us/stream/Poffetal_1997.pdf.
122. Id. at 771.
123. When surficial aquifers are in direct hydrologic contact with surface streams, a decline in the aquifer has the potential to drain the surface water feature. See, e.g., ROBERT GLENNON, WATER FOLLIES 71-86 (2004). Less obviously, but just as importantly, aquifer discharge accounts for 40 percent of the baseflow of most streams.
124. DAVID W. MOODY ET AL., NATIONAL WATER SUMMARY, WATER SURVEY PAPER 2325, 3 (1988).
125. Finally, dewatering of aquifers can cause saline intrusion or movement of subsurface materials that result in sinkholes or widespread subsidence that affect secure use of the surface for human activities. SAX ET AL., supra note 48, at 394-395.
126. See, e.g., J.B. RUHL ET AL., THE PRACTICE AND POLICY OF ENVIRONMENTAL LAW (2007).
127. See PETER ANNIN, THE GREAT LAKES WATER WARS 22-39 (2006).
128. Id. at 27.
129. Id. at 29-30.
130. See, e.g., Taylor v. Tampa Coal, 46 So.2d 392, 392-394 (Fla. 1950)
131. Glen Lake-Crystal River Watershed Riparians v. Glen Lake Ass'n, 264 Mich. App. 523, 525-43 (2005).
132. See generally, SAX ET AL., supra note 48, at 70-79.
133. MODEL WATER CODE, supra note 61, at 39-42.
134. SAX ET AL., supra note 48, at 141-44, 454-62.
135. See CAL. WATER CODE § 1260 (requires party seeking to appropriate water to set forth place of diversion for water)
136. see also California Trout, Inc. v. State Water Res. Control Bd., 90 Cal. App. 3d 816 (Cal. App. 1979).
137. Endangered Species Act, 16 U.S.C. §§ 1531-44 (2000).
138. See HOLLY DOREMUS & A. DAN TARLOCK, WATER WAR IN THE KLAMATH BASIN: MACHO LAW, COMBAT BIOLOGY, AND DIRTY POLITICS 89-100 (2008).
139. See id. at 103-11.
140. See Poff et al., supra note 92, at 775-77. This is a factor in the ACF controversy.
141. See, e.g., Robert Haskell Abrams, Water Federalism and the Army Corps of Engineers' Role in Eastern States Water Allocation, 31 U. ARK. LITTLE ROCK L. REV. 395 (2009).
142. The foremost of these is the political and attitudinal force of public opinion about minima of environmental quality. There are also some individual actions that find their way into the marketplace to protect ecological security, for example, conservation easements, and the dedication of water rights to instream flow.
143. See, e.g., Natural Resources: Conservation, Reclamation, and Use-Minimum Flows and Levels, FLA. STAT. § 373.042 (2008).
144. See generally, Janet C. Neuman & Gail Achterman, Sometimes a Grea Notion: Oregon's Instream Flow Experiments, 36 ENVTL. L. 1125, 1139 (2006).
145. Historically, a number of states following the prior appropriation doctrine forbade any setting aside of water for such uses. See, e.g., COLO. CONST. art. 16, § 6 (The right to divert the unappropriated waters shall never be denied). Over time, virtually all western prior appropriation states devised at least limited means to protect instream flows.
146. See, e.g., Hubbard v. State, 86 Wash.App. 119, 936 P.2d 27 (1997).
147. Many scholars have criticized the species-by-species aspect of ESA rather than a more comprehensive ecosystem protection approach. See, e.g., LAURA C. HOOD, FRAYED SAFETY NETS: CONSERVATION PLANNING UNDER THE ENDANGERED SPECIES ACT 2-3 (1998)
148. Craig W. Thomas, Habitat Conservation Planning: Certainly Empowered, Somewhat Deliberative, Questionably Democratic, 29 POLITICS AND SOCIETY 105, 105-30 (2001).
149. See Klamath Irrigation Dist. v. United States, 67 Fed. Cl. 504 (Fed.Cl. 2005).
150. See also Holly D. Doremus & Dan A. Tarlock, Fish, Farms, and the Clash of Cultures in the Klamath Basin, 30 ECOLOGY L.Q. 279 (2003).
151. In addition to flows for spawning and fish passage, avoiding entrainment in pumps and other intakes is critical. See, e.g., U.S. FISH AND WILDLIFE SERV., FINAL RESTORATION PLAN FOR THE ANADROMOUS FISH RESTORATION PROGRAM, available at http://www.delta.dfg.ca.gov/afrp/SWRCB/M.finalrestplan.pdf.
152. Georgia Governor Sonny Perdue held a prayer vigil on the state capitol grounds to pray for rain. See Jenny Jarvie, Gov to God: Send Rain!-Southeast Drought Spurs an Atlanta Prayer Vigil. Critics fault Georgia's conservation efforts, L.A. TIMES, Nov. 14, 2007, available at http://articles.latimes.com/2007/nov/14/nation/na-rain14 (last visited July 21, 2010).
153. The Georgia Legislature considered seeking to revive an almost 200-year old error in surveying that resulted in establishment of its border with Tennessee being one mile farther south than had been intended. The change would have placed a part of the Tennessee River in Georgia, which then, in theory, would have allowed Georgia to transport some of its water to Atlanta.
154. Shaila Dewan, Georgia Claims a Sliver of the Tennessee River, N.Y. TIMES, Feb. 22, 2008, available at http://www.nytimes.com/2008/02/22/us/22water.html?scp=1&sq=Georgia%20Claims%20a%20Sliver%20of%20the%20Tennessee%20River&st=cse (last visited July 21, 2010).
155. The conflict between the city of Atlanta and the environment omits the quantity of flow that the Flint River could contribute to the bottom of the basin, water which is largely consumed by Georgia farmer's unregulated irrigation.
156. See, e.g., Robert Haskell Abrams, Settlement of the ACF Controversy: Sisyphus at the Dawn of the 21st Century, 31 HAMLINE L. REV. 679 (2008).
157. See JODY W. LIPFORD, AVERTING WATER DISPUTES: A SOUTHEASTERN CASE STUDY 5 (2004) at 5, available at http://www.perc.org/pdf/ps30.pdf.
158. This figure is for the year 2000. See LIPFORD, supra note 116.
159. The description in the text leaves out claims for navigation and recreational use in the middle and bottom of the basin, and also omits the buyout of hydropower interests by Atlanta to remove another energy security interest from the problem. See, e.g., Robert Haskell Abrams, supra note 115.
160. See Paul Vos Benkowski & Bonnie Urfer, Unplanned Shutdowns Highlight Inefficiency of Nuclear Power, NUKEWATCH QUARTERLY, Winter 2007-08 at 2, available at nukewatch.com/quarterly/20074winter/page2.pdf
161. See also News Release, Beth Chapman, Alabama Secretary of State, Atlanta-Based Southern Company Confirms Impact on Farley Nuclear Plant if Water Flow Reduced (Oct. 25, 2007), available at http://www.sos.alabama.gov/PR/PR.aspx?ID=114 (last visited Aug. 16, 2010).
162. The basin geography is fairly simple. The Chattahoochee rises not far from Atlanta and flows west to where it forms the border with Alabama. It is joined from the east by the Flint, which rose in central Georgia. Once joined the river becomes the Apalachicola, that then flows south through the Florida panhandle to the Gulf of Mexico.
163. See LIPFORD, supra note 116, at 5.
164. The second basin is the far less heralded Alabama-Coosa-Tallapoosa (ACT) with the storage facility being Lake Allatoona, a reservoir under the control of the U.S. Army Corps of Engineers. Water is drawn there and conveyed to Atlanta by a pipeline. The third basin is the Ocmulgee, which shares a divide with the Chattahoochee. The Ocmulgee flows east from Atlanta into the Atlantic Ocean, and is a small river at its Atlanta headwaters, with no significant storage sites that might be developed.
165. Conservation is also an option, but over time it seems reasonable to expect that conservation alone will not be enough to secure the population against drought.
166. See generally U.S. Army Corps of Eng'rs, Description of Proposed Action Modification to the Interim Operations Plan at Jim Woodruff Dam, http://www.sam.usace.army.mil/ACF%20Water%20Resources%20Management/ProposedActionDescription-Modification_to_IOP.pdf.
167. For a case study specific to the ACF basin, see C.A. Gibson, Flow Regime Alterations Under Changing Climate in Two River Basins: Implications for Freshwater Ecosystems, 21 RIVER RESEARCH AND APPLICATIONS 849 (2005), available at ftp://brrftp.cr.usgs.gov/pub/mows/pubs/hay_pubs/hay_pdf/gibson.pdf.
168. See USDA FOREST SERV., VULNERABILITY OF THE SOUTHEASTERN UNITED STATES TO CLIMATE CHANGE (2008), available at http://www.worldwildlife.org/who/media/press/2008/WWFBinaryitem9647.pdf.
169. Id. at 3.
170. Id. at 4-5.
171. Another reason to think the two are not entirely antagonistic uses, environmental quality is one of the factors that strongly influences current patterns of population migration and consequent growth in population driven water demand.
172. See, e.g., Larry M. Svart, Environmental Preference Migration: A Review, 66 GEOGRAPHICAL REV. 314, 314-30 (1976). For that reason, it is reasonable to expect that the political will to have water for both cities and the ecosystem often align. The ACF contradicts that supposition because the ecological cost is, in terms of geopolitical boundaries, externalized, falling two hundred miles downstream in another state.
173. Again, the ACF presents an example in two separate ways. As noted previously, Georgia has not significantly limited Flint River irrigation, which impacts Apalachicola flows. More directly, a competing dam operations plan for the Corps dams proposed by the Atlanta Regional Commission eliminated conflict between water for population security and water for ecological security across a far broader range of operating conditions, especially those at the drought end of the spectrum. See generally GEOR. SOIL AND WATER CONSERVATION COMM'N, FIELD MANUAL FOR EROSION AND SEDIMENT CONTROL IN GEORGIA (4th ed. 2002).
174. Statement by James E. Rogers, Chairman, President and Chief Executive Officer, Duke Energy Corporation, in WORLD ECONOMIC FORUM, THIRSTY ENERGY: WATER AND ENERGY IN THE 21ST CENTURY 1, available at http://www2.cera.com/docs/WEF_Fall2008_CERA.pdf.
175. See U.S. Energy Chief Floats Carbon Tax Idea, SYDNEY MORNING HERALD, Feb. 13, 2009, available at http://news.smh.com.au/breaking-news-world/us-energy-chief-floatscarbon-tax-idea-20090213-869i.html (last visited July 21, 2010).
176. Efforts of the Carter administration in this direction fizzled out when oil prices receded. See Jimmy Carter-National Energy Program Fact Sheet on the President's Program, available at http://www.presidency.ucsb.edu/ws/index.php?pid=7373 (last visited Mar. 1, 2009)
177. In conjunction with, Crude Oil Prices, available at http://www.wtrg.com (last visited Mar. 1, 2009).
178. Efforts in that direction called for in REPORT OF THE NAT'L ENERGY POL'Y DEV. GROUP, NATIONAL ENERGY POLICY OF MAY 2001, available at http://www.pppl.gov/common_pages/national_energy_policy.html (last visited July 21, 2010), have been likewise unsuccessful at reducing dependence on foreign oil, which has increased considerably from the 52 percent figure for 2000 provided in that document.
179. See id. at 1-6.
180. The most recent figures from the Department of Energy (DOE) indicate that 57 percent of oil consumed in the United States now comes from foreign sources.
181. See, e.g., U.S. ENERGY INFORMATION ADMIN., "HOW DEPENDENT ARE WE ON FOREIGN OIL?," available at http://tonto.eia.doe.gov/energy_in_brief/foreign_oil_dependence.cfm (last visited July 21, 2010). Despite the recent decline in world oil prices, reducing oil dependence remains a doubly good idea for the United States. Alternative fuels may have a smaller carbon footprint, and the insecurity of foreign oil sources is unchanged by the temporary decline in world demand for oil.
182. This article also makes a deliberate choice to omit hydropower generation opportunities. To be sure, some new generating dams will be built, although virtually all of the best sites were dammed long ago. The water cost of generating electricity by hydropower is due primarily to evaporation and thus varies by climate, with a national average of 4,500 gallons per megawatt hour.
183. See WORLD ECONOMIC FORUM, supra note 131, at 21. Those evaporation losses will be larger with the advent of higher ambient temperatures. Even so, predicting where there will be enough of a change to have a significant impact on water demand is too difficult and speculative to claim as a major consideration facing future policymakers.
184. WORLD ECONOMIC FORUM, supra note 131, at 1.
185. Thermoelectric plants use water for cooling, handling ash, washing, wastewater treatment, and flue gas desulfurization (FGD) but generally the greatest percentage of withdrawn water is used for cooling purposes.
186. Thomas J. Feeley III et al., Water: A Critical Resource in the Thermoelectric Power Industry, ENERGY 33, 3 (2008), available at http://www.netl.doe.gov/technologies/coalpower/ewr/pubs/netl%20water%20estimate%20article%20Elsevier%201107.pdf.
187. HUTSON ET AL., supra note 29, at 5-7.
188. Only one-fifth of 1 percent of the water used in thermoelectric generation is groundwater.
189. Id. at 9.
190. The remaining 30 percent of withdrawals are of saline water.
191. Coal-fired power plants consumption levels are also dependent on which type of boiler and FGD devices are used.
192. Feeley III et al., supra note 136, at 4.
193. World Business Council for Sustainable Development, Water Woes Loom as Thirsty Generators Face Climate Change, GREENWIRE, Oct. 4, 2007, available at http://www.earthportal.org/news/?p=536 (last visited July 21, 2010).
194. Blowdown is the process of discharging cooling water in order to prevent the buildup of the minerals and sediments which may impair efficiency.
195. SHUSTER ET AL., STIMATING FRESHWATER NEEDS TO MEET FUTURE THERMOELECTRIC GENERATION REQUIREMENTS, 2007 UPDATE 12 (2007), available at http://www.fypower.org/pdf/DOE_WaterNeedsAnalysis_2007.pdf.
196. See infra Table 2.
197. HUTSON ET AL., supra note 29, at 44.
198. Only 7 percent of the total combined cycle (CC) plants currently in operation are reflected in the data, the authors of the report feel that if data had been available for a larger number of CC plants, the percentage of those plants utilizing dry cooling systems would be much smaller.
199. DEP'T OF ENERGY/NAT'L ENERGY TECH. LABORATORY, STIMATINGFRESHWATER NEEDS TO MEET FUTURE THERMOELECTRIC GENERATION REQUIREMENTS 13 (2008 update), available at http://www.netl.doe.gov/technologies/coalpower/ewr/pubs/2008_Water_Needs_Analysis-Final_10-2-2008.pdf.
200. See 33 U.S.C. § 1326 (1986)
201. Clean Water Act, § 316(b)
202. C.F.R. § 401.14 (2008) requiring [t]he location, design, construction and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.
203. HUTSON ET AL., supra note 29, at 42.
204. CWA regulations were implemented in three phases, the first two phases are the most pertinent to thermoelectric plants. National Pollutant Discharge Elimination System: Regulations Addressing Cooling Water Intake Structures for New Facilities, 66 Fed. Reg. 65,256 (Dec. 18, 2001)
205. National Pollutant Discharge Elimination System-Final Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Facilities, 69 Fed. Reg. 41,576 (Jul. 9, 2004).
206. SHUSTER ET AL., supra 142, at A-3.
207. Starting in 2010, these scenarios range from keeping the status quo to only building wet recirculation plants and retrofitting 5 percent of the existing OT cooling plants every five years. Feeley III et al., supra note 136, at 3.
208. Id. at 4.
209. The conversion factor is 1 mgd = 1,120 acre-feet per year.
210. See SAX ET AL., supra note 48, at 26.
211. With a few exceptions this includes everything west of the 100th meridian that starts in the Great Plains states.
212. For a state-by-state breakdown of thermoelectric withdrawals by source and cooling technology, see HUTSON ET AL., supra note 29, at tbl.13.
213. ID H.B. 791, 58th Leg., 2d Reg. Sess. (Idaho 2006), available at http://www3.state.id.us/oasis/2006/H0791.html (last visited July 21, 2010).
214. William Sweet, Drought Forces U.S. Government to Decide Among City Residents, Nuclear Power, and River Mussels, IEEE SPECTRUM, Nov. 19, 2007, available at http://spectrum.ieee.org/nov07/5727 (last visited July 21, 2010).
215. SMITH ET AL., POTENTIAL EFFECTS OF CLIMATE CHANGE IN THERMOELECTRIC COOLING SYSTEMS, POSTER PRESENTATION BY OAK RIDGE NATIONAL LABORATORY (2005), available at http://www.climatescience.gov/workshop2005/posters/P-WE1.18_Smith.B.pdf. This is especially a problem for OT plants which do not have in-house technology to cool water.
216. SPENCER ABRAHAM, U.S. DEP'T OF ENERGY, NATIONAL TRANSMISSION GRID STUDY 2-8 (May 2002), available at http://www.ferc.gov/industries/electric/gen-info/transmissiongrid.pdf. For a map of the area with bottlenecks see Sections II and III of the study.
217. See infra Part IV.E for further discussion.
218. Robert Peltier, New Coal Plant Technologies Will Demand More Water, http://www.powermag.com/water/61.html (last visited Jan. 27, 2009).
219. Lindsay Green et al., Finding Technological Solutions to the Energy-Water Nexus, available at http://www.iags.org/n0829052.htm (last visited Feb. 25, 2009).
220. Elmhurst College, Virtual Chembook, http://www.elmhurst.edu/~chm/vchembook/511natgascombust.html (last visited July 21, 2010).
221. DEP'T OF ENERGY/NAT'L ENERGY TECH. LAB., COAL BED METHANE PRIMER 2 (2004), available at http://www.all-llc.com/page.php?92 (last visited July 21, 2010) [hereinafterCBM PRIMER].
222. See infra Part IV.B.
223. For a succinct description of two processes by which CBM forms in conjunction with coal seams, see CBM PRIMER, supra note 165, at 8.
224. See Gary Bryner, Coalbed Methane Development in the Intermountain West: Primer, NAT. RESOURCES LAW CTR., UNIV. OF COLO. SCH. OF LAW 1 (2005), available at http://www.colorado.edu/Law/centers/nrlc/publications/CBM_Primer.pdf. For a more technical description, see also CBM PRIMER, supra note 165, at 9-12.
225. CBM PRIMER, supra note 165, at 3.
226. Id. at 11-12.
227. U.S. DEP'T OF THE INTERIOR, BUR. OF LAND MGMT., ENVIRONMENTAL IMPACT STATEMENT AND DRAFT PLANNING AMENDMENT FOR THE POWDER RIVER BASIN OIL AND GAS PROJECT, 2-24.
228. Thomas F. Darin & Amy W. Beatie, Debunking the Natural Gas Clean Energy Myth: Coalbed Methane in Wyoming's Powder River Basin, 31 ENVTL. L. REP. 10566 (2001).
229. Bryner, supra note 168, at 16 (citing BUR. OF LAND MGMT, WYO. STATE OFFICE, U.S. DEP'T OF THE INTERIOR, DRAFT ENVIRONMENTAL IMPACT STATEMENT AND DRAFT PLANNING AMENDMENT FOR THE POWDER RIVER BASIN OIL AND GAS PROJECT xxiv, 4-12 (2002).
230. For example, in the Fort Union Formation where CBM production is underway, the water quality has been sufficient to serve as a municipal supply for Gillette, Wyoming. Nevertheless, its quality is not as high as all of the region's surface streams.
231. See CBM PRIMER, supra note 165, at 20.
232. The environmental concerns are extensive: Coalbed methane in the hundreds of trillion cubic feet of potential reserves in the Rocky Mountains is a major, if not the biggest, threat to the region's environment and natural resources. Projections in the Wyoming Powder River Basin alone include 17,000 miles of new roads, 20,000 miles of new pipelines, 5,300 miles of new overhead powerlines, and more than 200,000 acres of surface disturbance by 2017.
233. Thomas F. Darin, Waste or Wasted?-Rethinking the Regulation of Coalbed Methane Byproduct Water in the Rocky Mountains: A Comparative Analysis of Approaches to Coalbed Methane Produced Water Quantity Legal Issues in Utah, New Mexico, Colorado, Montana, and Wyoming, 17 J. ENVTL. L. & LITIG. 281, 340 (2002).
234. See UTAH ADMIN. CODE r.649-9-1.1 (2002).
235. See MONT. CODE ANN. § 82-11-111(2)(a) (2001) (first enacted in 1953) (noting that jurisdiction over regulating disposal of oil and gas byproduct water is vested with the Montana Board of Oil & Gas Conservation).
236. Bryner, supra note 168, at 31.
237. See, e.g., Colorado Oil and Gas Conservation Commission Rule 907, available at http://cogcc.state.co.us (last visited July 21, 2010).
238. See also, COLO. REV, STAT. § 34-60-103(4.5) ('Exploration and Production Waste' means those wastes that are generated during the drilling of and production from oil and gas wells or during primary field operations and that are exempt from regulation as hazardous wastes under the federal 'Resources Conservation and Recovery Act of 1976.').
239. Groundwater, even if it is freshwater, may be unavailable if, for example, the amount involved is too deep in the ground to be economically removed for certain uses, or if the water is available in too small a sustainable amount for other beneficial uses, even those with a high ability to pay.
240. See generally Thomas F. Darin, Waste or Wasted?-Rethinking the Regulation of Coalbed Methane Byproduct Water in the Rocky Mountains: A Comparative Analysis of Approaches to Coalbed Methane Produced Water Quantity Legal Issues in Utah, New Mexico, Colorado, Montana, and Wyoming, 17 J. ENVTL. L. & LITIG. 281, 340 (2002).
241. See Gary Bryner, Coalbed Methane Development in the Intermountain West: Producing Energy and Protecting Water, 4 WYO. L. REV. 451, 550-51 (2004).
242. See, e.g., A. DAN TARLOCK, LAW OF WATER RIGHTS AND RESOURCES § 5:66 (Westlaw current through July 2008 update).
243. See WYO. CONST. art. VIII, § 3, see also WYO. STAT. ANN. § 41-3-931.
244. WYO. STAT. ANN. § 41-3-102(b) (by application of WYO. STAT. ANN. § 41-3-906).
245. SAX ET AL., supra note 48, at 165-66 (citing Tulare Irrigation Dist. v. Lindsay- Strathmore Irrigation Dist., 45 P.2d 972 (Cal. 1935)).
246. Kristin Keith, Jim Bauder & John Wheaton, Frequently Asked Questions: CBM 3, available at http://waterquality.montana.edu/docs/methane/cbmfaq.pdf. The authors have found no material suggesting an alternative process that recovers the CBM without removing the water.
247. Dewatering can cause subsidence. See, e.g., SAX ET AL., supra note 48, at 397-407.
248. Fresh groundwater is also being pumped for CBM in the Black Warrior Formation in Alabama, but the volumes involved are not problematic.
249. See, e.g., U.S. Dep't of the Interior, Western Oil Shale Potential: 800 Billion Barrels, available at http://www.doi.gov/archive/news/08_News_Releases/080722.html (last visited Feb. 20, 2009) [hereinafter DOI July 22 News Release].
250. The Green River Formation is composed of four different basins, the Green River and Washakie Basins in southwestern Wyoming, the Unita Basin in northeastern Utah, and the Piceance Creek Basin in northwestern Colorado. See The Oil Shale & Tar Sands Programmatic EIS Information Center, Oil Shale and Tar Sands PEIS Maps for locational and oil shale deposit maps, http://ostseis.anl.gov/guide/maps/index.cfm (last visited July 21, 2010).
251. Things People Said: Yogi Berra Quotes, http://www.rinkworks.com/said/yogiberra.shtml (last visited July 21, 2010).
252. See generally, ANDREW GULLIFORD, BOOMTOWN BLUES: COLORADO OIL SHALE 1885-1985 (1989).
253. These estimates include the cost of current environmental compliance but not additional costs to reduce greenhouse gas emissions. See JAMES BARTIS ET AL., OIL SHALE DEVELOPMENT IN THE UNITED STATES: PROSPECTS AND POLICY ISSUES x (2005) [hereinafter RAND Study Summary].
254. RAND Study Summary, supra note 194, at ix.
255. Research Brief, Rand Corporation, Gauging the Prospects of a U.S. Oil Shale Industry (2005), available at http://www.rand.org/pubs/research_briefs/RB9143/index1.html (last visited Aug. 16, 2010).
256. U.S.C.A. § 15927 (West 2001).
257. RAND Study Summary, supra note 194, at ix.
258. Id. at xiii.
259. The standard barrel of oil contains 42 gallons. Texas Oil & Gas Association, What a Barrel of Crude Oil Makes, http://www.txoga.org/articles/308/1/WHAT-A-BARRELOF-CRUDE-OIL-MAKES (last visited Dec. 22, 2009).
260. Shell Oil, which is proposing the in situ retorting method, estimates a 2:1 wells to wheels water:oil ratio for that method, which would take into account all water used in the oil shale field, all water used to generate electricity to heat the retort, and all water used to refine the crude into finished product.
261. See JAMES R. MONTGOMERY, WATER ISSUES IN OIL SHALE DEVELOPMENT 8 (2007), (paper presented at the 4th Annual Water Law Conference, Steamboat Springs, Colo., June 22-23, 2007) (copy on file with the author) [hereinafter MONTGOMERY].
262. Donald L. Barlett & James B. Steele, Asleep at the Switch, TIME, Oct. 12, 2003, 2-4, available at http://www.time.com/time/magazine/article/0,9171,1005865-1,00.html (last visited July 21, 2010).
263. RAND Study Summary, supra note 194, at xi.
264. This discussion omits speculation about possible federal subsidy and economic stimulus initiatives, or the possible imposition of carbon taxes, all of which would be likely to increase the demand for clean alternative fuels.
265. Another concern that is not addressed in this article is whether water used for oil shale production might interfere with interstate compact obligations. See MONTGOMERY, supra note 200, at 17.
266. See COLO. REV. STAT. § 37-92-103(6).
267. See, e.g., Mooney v. Kuiper, 573 P.2d 538 (Colo. 1978).
268. See MONTGOMERY, supra note 200, at 13-14 (describing five decreed conditional rights and their terms).
269. Municipal Subdist., N. Colo. Water Conservancy Dist. v. Getty Oil Exploration Co., 997 P.2d 557, 560-61 (Colo. 2000).
270. See Dallas Creek Water Co. v. Huey, 933 P.2d 27, 36 (Colo. 1997).
271. COLO. REV. STAT. § 37-92-301(4)(c).
272. See Municipal Subdist., N. Colo. Water Conservancy Dist. v. Chevron Shale Oil Co., 986 P.2d 918, 924 (Colo. 1999)
273. see also Municipal Subdist., N. Colo. Water Conservancy Dist. v. OXY USA, Inc., 990 P.2d 701, 705-08 (Colo. 1999) (discussing the application of the can and will requirement for due diligence findings imposed by COLO. REV. STAT. § 37-92-305(9)(b)).
274. See MONTGOMERY, supra note 200, at 4.
275. Author Abrams conversation on July 28, 2008, with William Paddock, the attorney who represented OXY in the 1980 litigation of its conditional rights.
276. The collapse in oil prices in late 2008 was triggered by the global economic recession, a phenomenon that is temporary. The factors that triggered the price rise, the economic emergence of China and India and other nations, and the increased demand for oil that triggered, will reemerge.
277. The priorities held by later developing East Slope towns, such as Aurora, and some of the transfers to Colorado Springs, are junior to the as yet unexercised 1950s oil shale rights. The West Slope has many towns and developments that grew up far later, in the most recent 30 years, a period in which that region's population grew from about 250,000 to one million. The priorities supporting their uses are junior to almost all of the oil shale conditional rights.
278. See H.B. 05-1177, 65th Gen. Assem., Reg. Sess. (Colo. 2005). The overall inquiry is referred to as the Statewide Water Supply Initiative.
279. See URS Corp., Energy Development Water Needs Assessment (Phase I Report) Section 7, Sept. 2008, available at http://www.crwcd.org/media/uploads/20080925_Energy_Needs_Report.pdf.
280. Id. at 6-7.
281. See, e.g., DOI July 22 News Release, supra note 191.
282. The Final Oil Shale Regulations were issued November 18, 2008. 43 C.F.R. §§ 3900, 3910, 3920, 3930 (2008).
283. Seventy-two percent of the Green River Formation oil shale underlies federal lands. See DOI July 22 News Release, supra note 191.
284. 42 U.S.C. §§ 4321-4347 (2000).
285. 10 U.S.C. § 7420 (2000).
286. United States v. District Court In and For Water Dist. No. 5, 401 U.S. 527, 529 (1971).
287. Michael Blumm, Unconventional Waters: The Quiet Revolution in Federal and Tribal Minimum Stream Flows, 19 ECOLOGY L.Q. 445, 459 (1992).
288. See United States v. Bell, 724 P.2d 631 (Colo.1986). The Colorado Supreme Court held that the federal government was disallowed from amending its claim for reserved rights for Naval Oil Shale Reserves in the relevant water districts and having the amendment relate back to the date of the reservation. More specifically, the original filing of the claim was too indefinite to put potential objectors on notice. The amendment allowed the claim to be recognized, but the failure to raise the claim timely had two separate effects on the priority date. First, the failure to claim vitiated the reservation date as date of priority and, second, the non-relation back meant the claim dated from the date of the amendment, which was nearly a decade later than it would otherwise have been.
289. See 43 U.S.C.A. § 617l (1928) for the text and its dates of enactment and signing. See COLO. REV. STAT. § 37-61-101 (Lexis 2008) for its current place in Colorado law.
290. 63 STAT. 31 (1949)
291. COLO. REV. STAT. § 37-62-101 (Lexis 2008).
292. States are required to curtail in-state uses to meet compact obligations. See, e.g., Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938). See also Texas v. New Mexico, 462 U.S. 554 (1983).
293. See infra note 247 for a brief consideration of the impact of biofuels production on world food process.
294. See NAT'L RES. COUNCIL OF THE NAT'L ACAD. OF SCI., WATER IMPLICATIONS OF BIOFUELS PRODUCTION IN THE UNITED STATES 10 (2008) [hereinafter WATER IMPLICATIONS].
295. Climate, water availability, and soil type, among others, are all factors that influence the suitability of land as a situs for growing any particular crop.
296. See National Corn Growers Ass'n, Ethanol & Coproducts, http://www.ncga.com/ethanol-coproducts (last visited July 21, 2010).
297. See LINWOOD HOFFMAN ET AL., U.S. DEP'T OF AGRIC., FEED GRAINS BACKGROUNDER 6 (2007), available at http://www.ers.usda.gov/Publications/FDS/2007/03Mar/FDS07C01/fds07C01.pdf. There is every reason to believe that ethanol production will continue to rise.
298. For the first time ever, in 2007, the price of ethanol fell to a point equal to or below that of unleaded gasoline. See Nebraska Energy Office, Ethanol and Unleaded Gasoline Average Rack Prices, http://www.neo.ne.gov/statshtml/66.html (last visited July 21, 2010).
299. Energy Independence and Security Act of 2007, Pub. L. No. 110-140, 121 Stat. 1492 (2007).
300. See, e.g., WATER IMPLICATIONS, supra note 231, at 46.
301. An acre of corn transpires between 3,000 and 4,000 gallons of water per day over the growing season. WATER IMPLICATIONS, supra note 231, at 12.
302. NAT'L CORN GROWERS ASS'N, TRUTHS ABOUT WATER USE, CORN AND ETHANOL, http://www.ncga.com/files/GetTheFactsOnWaterUse.pdf [hereinafter CORN TRUTHS]
303. This figure is not compatible with another figure provided on the same page, whichlists corn's annual evapotranspiration at between 1.0 and 1.5 million gallons per year for each acre. However, the figure in the text is generally consistent with the water use suggested by WATER IMPLICATIONS, supra note 231, at 12.
304. CORN TRUTHS, supra note 238 (eighty-seven percent of corn in the United States is grown without irrigation).
305. USGS, supra note 81.
306. See, e.g., Prather v. Eisenmann, 261 N.W.2d. 766 (Neb. 1978)
307. Prohosky v. Prudential Ins. Co., 584 F.Supp. 1337 (N.D. Ind. 1984).
308. Richard McNider, John Christy, Dennis Bragg, James Hairston, & Donn Rodekohr, Hydrological and Hydro-illogical Cycles: Managing Short Term Droughts in the Southeast, Jan. 31, 2007 (presentation given to U.S.D.A. Conference in Savannah, GA), available at http://www.usawaterquality.org/conferences/2007/PPTs&Posters/Meetings/Water_Quantity/McNider.pdf
309. U.S. ENVTL. PROT. AGENCY, EPA Proposes New Requirements for Geologic Sequestration of Carbon Dioxide, July 24, 2008, at 1, EPA-816-F-08-832, available at http://www.epa.gov/safewater/uic/pdfs/fs_uic_co2_proposedrule.pdf.
310. Id. at 2.
311. U.S. DEP'T OF ENERGY, CARBON SEQUESTRATION ATLAS II OF THE UNITED STATES AND CANADA 134-39 (2008), available at http://www.netl.doe.gov/technologies/carbon_seq/refshelf/atlasII (last visited July 21, 2010).
312. See Barbara Bennett, Massood Ramezan & Sean Plasynski, U.S. DEP'T OF ENERGY NAT'L ENERGY TECHNOLOGY LABORATORY, Impact of Carbon Capture and Sequestration on Water Demand for Existing and Future Power Plants, available at http://www.netl.doe.gov/publications/proceedings/07/carbon-seq/data/papers/wed_006.pdf.
313. This article makes no attempt to discuss the potential water savings that can be provided by improved irrigation methods. Improved methods can reduce demand, especially demand for withdrawals of water. To a far lesser degree, highly controlled application and timing can even reduce the amount of water the plant transpires while still providing a full yield. The cost of implementing those systems will, in some cases be affordable, but for the purposes of this article, the operating assumption is that production will relocate away from shortage.
314. While it is beyond the scope of this article, two recent reports have raised alarming possibilities that will flow from the water supply impacts of global warming as they relate to the world food supply and the present and future impact on that supply of biofuels production, which diverts crops and land from food production.
315. See Hearing Before the House Permanent Select Committee on Intelligene House Select Committee on Energy Independence and Global Warming, 110th Cong. 14 (2008) (statement of Thomas Fingar, Deputy Dir. Of Nat'l Intelligence, Nat'l Intelligence Council), available at http://www.dni.gov/testimonies/20080625_testimony.pdf (reduced production of cereal crops in poorest nations)
316. Aditya Chakrabortty, Secret Report: Biofuel Caused Food Crisis, THE GUARDIAN, July 3, 2008, available at http://www.guardian.co.uk/environment/2008/jul/03/biofuels.renewableenergy (last visited July 21, 2010) (confidential World Bank report states that biofuels forced global food prices up 75 percent)
317. ROBERT BAILEY, OXFAM INT'L, ANOTHER INCONVENIENT TRUTH (2008), available at http://www.oxfam.org.uk/resources/policy/climate_change/downloads/bp114_inconvenient_truth.pdf
318. The Cost of Food: Facts and Figures, BBC NEWS, Oct. 16, 2008, available at http://news.bbc.co.uk/2/hi/7284196.stm (last visited July 21, 2010) (highlights the dramatic price increase in cereals, such as wheat, soya, rice, and corn). Taken together, these reports point out the momentous implications of agricultural changes in the United States and, therefore, sound a cautionary note about what policy options will be pursued in the longer term.
319. See HEATHER COOLEY, JULIET CHRISTIAN-SMITH & PETER H. GLEICK, PACIFIC INSTITUTE, MORE WITH LESS: AGRICULTURAL WATER CONSERVATION AND EFFICIENCY IN CALIFORNIA 5 (2008), available at http://www.pacinst.org/reports/more_with_less_delta/more_with_less.pdf (Reducing water use can also create a more resilient agricultural sector by increasing the quantity of water in storage, reducing the risk of drought, and improving the reliability of the available water. In addition, certain water conservation and efficiency improvements actually increase farm productivity and profitability, further bolstering the agricultural sector.).
320. The 85 percent figure (freshwater used by irrigated agriculture) will eventually decline as thermoelectric cooling using closed loop systems vastly increases water consumption in that sector. HUTSON ET AL, supra note 29. Agriculture will remain an immense, highly consumptive water use, but it will not be able to compete successfully with water needed for population, ecology, or energy security.
321. RENEE SHARP & BILL WALKER, ENVTL. WORKING GROUP, BIG AG'S $100 MILLION ENERGY SUBSIDY (2007), available at http://www.ewg.org/reports/powersubsidies (last visited July 21, 2010).
322. See CAL. ENVTL PROT. AGENCY, DIV. OF WATER RIGHTS, IMPERIAL IRRIGATION DISTRICT LONG TERM TRANSFER (2005), available at http://www.swrcb.ca.gov/waterrights/water_issues/programs/hearings/iid_sdcwa (last visited July 21, 2010); OR. REV. STAT. § 537.455 (2003).
323. See State Dep't of Ecology v. Grimes, 852 P.2d 1044 (Wash. 1993).
324. See COOLEY, CHRISTIAN-SMITH & GLEICK, supra note 249, at 6.
325. Bonnie G. Colby, Dana R. Smith & Katherine Pittenger, Water Transactions: Enhancing Supply Reliability During Drought, in ARIZONA WATER POLICY: MANAGEMENT INNOVATIONS IN AN URBANIZING, ARID REGION (2007).
326. The George W. Bush administration attempted to lead in the energy field, but stubbornly resisted framing a strong national program to address climate change. The Obama administration has announced that it intends to take a different course, but the details are still few, and congressional support may vary from those plans.
327. See, e.g., SAN JUAN RIVER BASIN: RECOVERY IMPLEMENTATION PROGRAM, SAN JUANCHAMA PROJECT WATER SUPPLY (2007), available at http://www.fws.gov/southwest/sjrip/pdf/DOC_San_Juan_Chama_Project_Water_Supply_Report.pdf.
328. The CWA presents some less-broadly applicable controls on water use, such as the creative use of Section 401 by the State of Washington to further ecological use of water. See PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700 (1994).
329. A farsighted variation on this pattern would be for Congress to require energy planning at the state level, and include water availability and water use impacts as mandatory considerations in the state plans. This would focus all of the states on the implications of the energy-water nexus in a fashion similar to that already underway in Colorado and a few other states.
330. The Great Lakes Basin alone, shared by eight states (Illinois, Indiana, Michigan, Minnesota, Ohio, New York, Pennsylvania, and Wisconsin), as well as the provinces of Ontario and Quebec, contains 90 percent of the available fresh surface water in the United States.
331. See GREAT LAKES COMM'N, TOWARD A WATER RESOURCES MANAGEMENT DECISION SUPPORT SYSTEM FOR THE GREAT LAKES-ST. LAWRENCE RIVER BASIN (2003), available at http://glc.org/wateruse/wrmdss/finalreport.html (last visited July 21, 2010).
332. Delaware River Basin Compact, Pub. L. No. 87-328, 75 Stat. 688 (1961).
333. For a detailed discussion of the Delaware River Basin Compact, see Joseph W. Dellapenna, Interstate Struggles Over Rivers: The Southeastern States and the Struggle Over the 'Hooch,' 12 N.Y.U. ENVTL. L.J. 828, 837-50 (2005).
334. Great Lakes-St. Lawrence River Basin Compact, Pub. L.No. 110-342 (2008).
335. see also Noah D. Hall, Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region, 77 U. COLO. L. REV. 405 (2006).
336. Federal reserved water rights arise independent of state law and, under the sway of the U.S. Constitution's Article VI Supremacy clause, will defeat conflicting state law water rights.
337. See, e.g., Winters v. United States, 207 U.S. 564 (1908).
338. Few of the water use conflicts foreseen in this article, however, involve federal reserved water rights. The federal government could authorize condemnation of state law water rights, but large-scale use of that power in contravention of the states' traditional hegemony over the field seems unlikely.
339. Dr. Daniel P. Sheer, founder of Hydrologics, has created a software system, OASIS, that enables parties to simulate the routing of water through a water resource system. This creates an opportunity for parties with diverse and often conflicting goals-such as cities, power facilities, environmentalists, and agriculturalists-to work together to develop operating policies and solutions that mutually satisfy their diverse objectives. See OASIS Software, http://www.hydrologics.net/pdf/oasis.pdf.