Cascading climate calamities target West water, legal system

A Desire United Nations climate change report confirms what water advocates in the West have known for a long time – that drought was becoming the norm in the region and adaptation is key.

“Every time we see it written, it gets a little more real,” said William Caile, a consulting water attorney at Holland & Hart LLP in Denver, referring to the report’s water shortage predictions. .

the report, published Monday by the Intergovernmental Panel on Climate Change (IPCC), is a 3,675-page document deep dive in what the latest scientific research says about what’s at risk as fossil fuels continue to warm the planet. Water scarcity amid rising air and stream water temperatures will afflict much of North America, exacerbating biodiversity losses, declining agricultural productivity and the forest fire, the report found.

The Southwest is one of the regions which, according to the IPCC, will soon be profoundly different. The Colorado River, which provides water to 40 million people from Denver to Los Angeles, cuts through the increasingly arid Southwest, which is nearing a “tipping point” where long-term water scarcity term conflicts with high water use and agriculture, the report concludes. .

Last year, the Bureau of Reclamation declared the first-ever water shortage on the Colorado River. This region has been experiencing extreme heat and drought for the past 20 years, with the signs pointing only to an even more severe water shortage.

The IPCC report is a “warning signal” and “climate change is killing humanity” tweeted Rep. Jared Huffman (D-California), who chairs a House Natural Resources Committee panel on water.

Legal challenges

The Southwest’s ability to adapt to climate change may be limited by complex legal and administrative battles over the Colorado River and ultimately by depletion of groundwater and river flows throughout the Southwest, says The report.

“The report clearly demonstrates how ill-suited our Western United States water management institutions, developed in the 19th and 20th centuries, are to the challenges posed by climate change,” said John Fleck, Director from the University of New Mexico Water Resources Program.

“Legislation, for example, that presumes we can pump groundwater to compensate for short-term surface water deficits no longer works when the surface water deficit is permanent,” Fleck said. “You can already see this struggle unfolding now with California’s efforts to curb excessive groundwater pumping.”

Farmers in California’s Central Valley are relying too heavily on groundwater amid Stream water shortages, leading to land sinking under farm fields and increasing the threat of arsenic contamination in water.

The report shows that the ravages of climate change are predictable and that people should prepare to prepare for a “profoundly different” world, said Michael Gerrard, founder of the Sabin Center for Climate Change Law at Columbia University.

“The challenges to the legal system (and all other systems) are profound, and we are not on track to address them. Very far from it,” Gerrard said in an email.

Wastewater reuse is among measures many Western cities are considering to adapt to long-term water scarcity, which water lawyers and lawyers across the country are incorporating into an existing legal framework. .

Caile said he was bullish on the ability of existing legal structures, such as the Colorado River Compact, to handle the crisis. The pact, which was written nearly a century ago in a time of abundant water and which determines how the river’s water is distributed among western states, may be about to be overhauled, did he declare.

To the west, the competing pressures of increased drought, resulting in dry water shortages and explosive growth law “like a vice,” Caile said.

Water protection battles

The report’s vision of an arid future for the West is likely to fuel the Biden administration’s efforts to include a wide range of waters and wetlands under the protections of the Clean Water Act as waters. of the United States, or WOTUS, said Kevin Desharnais, a water attorney at Dickinson Wright LLC in Chicago.

Many western creeks that the Clean Water Act protects are ephemeral or only part of the year because they are in a desert. A Trump-era definition of federally protected waters, which a court overturned last year, excluded those waterways, lifting safeguards on many waterways in arid states such as the New -Mexico.

“This question is particularly important in the southwest, where a significant portion of the waters may be ephemeral or intermittent waters that may not be within the scope of WOTUS,” Desharnais said.

The U.S. Supreme Court will hear a case later this year regarding WOTUS and the scope of the Clean Water Act, as the Biden administration considers two different rules defining that scope.

“The IPCC report can be cited to support the need for a broad interpretation of Wotus” due to water scarcity, Desharnias said.

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