Water Management Issues Surface as Virgin River Wends its Way to the Colorado

Wheeling emerges as prominent issue

In Arizona, the Virgin River is not a high profile, big issue river like the Colorado, Salt, Verde, and San Pedro rivers. With headwaters in Utah, the Virgin River meanders across the thinly populated northwest corner of Arizona, before flowing into Nevada and eventually into Lake Mead.

Arizona’s noncelebrity rivers deserve attention. These rivers are parts of the whole. To know them is to better understand the big picture, that the state’s river systems consist of diverse flows and interconnections, and that rivers, regardless of size, can raise issues of broad, statewide significance. This is certainly true along the Virgin River.

In its perennial quest for additional water supplies, Nevada is raising an issue about the management of the Virgin River and ultimately the Colorado River. The state wants to wheel its supply of Virgin River water through Lake Mead for delivery to Las Vegas. However the issue eventually plays out will not affect the Virgin River flow within Arizona. That is not at issue. Yet Nevada’s actions could affect Arizona’s Colorado River supply and its management of instate Colorado River tributaries.

Another management issue likely to surface along the Virgin River is out-of-state water transfers. Developments occurring in the area raise expectations that an application will be filed to pipe water from Arizona to Nevada. Not yet having addressed an out-of-state water transfer request, the Arizona Department of Water Resources would be addressing an issue with broad water management significance.

Using Virgin River water

Arizona’s stake in the water resources of the Virgin River is not high, compared to its neighboring states of Nevada and Utah. The Virgin River flows through a relatively isolated area of Arizona, with no large, rapidly growing instate population center thirsting for its waters. Littlefield, population about 1,600, is the only Arizona settlement of any size along the river. The US Bureau of Land Management has several instream flow applications for wild and scenic river status in the area. Also, water right applications for Virgin River water have been filed for some stock watering and municipal uses.

The Virgin River

The situation is much different in Utah and Nevada. Both Utah to the north of Arizona and Nevada to its west have rapidly growing population centers that look to the Virgin River as an important water supply.
Utah has nearly fully developed its water supplies of the Virgin River and its tributaries. Some Virgin River water rights remain undeveloped, however, including about 50,000 to 100,000 acre-feet. This amount is earmarked for the St. George and southeast Utah area to support its long-term growth. If diversion structures and storage facilities are able to be developed, this last portion of the Virgin River in Utah will be diverted and used.

Downriver from Arizona, the Southern Nevada Water Authority holds surface water rights for 113,000 acre-feet on the Virgin River, an amount granted by state permit based on studies of the river’s capacity. Its strategies to obtain the water includes a proposal that, if implemented, could bode major changes in the management of the Lower Colorado River.

Wheeling the waters

In its effort to develop its Virgin River resources, Nevada confronts a paradox that has plagued many efforts to develop the West: a water source distant from its intended point of use. The strategy resorted to in such situations is to pump the water directly from the source, in this case the Virgin River, and pipe it overland to its intended use which would be Las Vegas. SNWA is in fact considering such a strategy.
This would be a formidable undertaking. Cost of such a project, considered to the area’s most massive public works project since Hoover Dam, is estimated to be about one billion dollars. This is an option SNWA would prefer not to pursue, especially since a less expensive proposal would seem to be at hand, if only troublesome legal complexities could be resolved.

The utility’s preferred solution, one that would save it from having to build a costly pipeline, is to leave the water in the Virgin River to flow into Lake Mead. Most of Nevada’s 300,000 acre-feet of Colorado River water is pumped from this reservoir. According to this scenario Virgin River water would enter Lake Mead, to be retrieved downstream of the reservoir through the Las Vegas water intakes, with Virgin River water in and Virgin River water out. Whatever is needed to deliver the water to Las Vegas would already be in place: the natural course of the river, storage in Lake Mead and delivery via the city’s intakes.

This is called “wheeling,” with Virgin River water wheeled through Lake Mead for delivery to Las Vegas. Seemingly straight forward and logical, the plan raises troublesome issues and runs aground on formidable legal complexities.

Wheeling is controversial

ADWR Colorado River Section Manager Tom Carr explains some of the complications. He says wheeling would provide Nevada an unfair advantage to waters of the Colorado River. This is because Nevada would not have to build the storage and pumping facilities needed if water were directly pumped from the Virgin River. Under typical appropriative water rights laws, including Nevada’s, a water right is not approved until water is physically diverted and put to use. Allowing water from the Virgin River to flow to Lake Mead is not actually an appropriation of Virgin River water. Wheeling in effect enables a state to claim water flowing into the Colorado River as a separate state water right distinct from all other water in the Colorado River. But Colorado River water is apportioned by the Secretary of the Interior and the Boulder Canyon Project Act, and there is no provision for recognizing state appropriative rights to tributary inflows under the Law of the River.

Carr says, “Wheeling would make it much easier for someone to put together nothing more than a paper water right for Colorado River water. ... What would happen is that someone would be given the benefit of a Colorado River water supply that other folks are now using without requiring them to make any sort of financial or physical commitment to divert that water within the state of origin.”

Other problems also arise. According to a 1964 U.S. Supreme Court decree states can develop their Colorado River tributaries for use within the state. Arizona, for example, pumps water from the Little Colorado and the Bill Williams rivers. Whatever water is removed from the tributaries does not count against a state’s Colorado River allocation.

Once the tributaries’ flow reaches the mainstem of the Colorado River, however, its legal status changes. In mingling with the waters of the Colorado River the tributary flow becomes interstate water controlled by the U.S., subject to the 1922 Colorado River Compact and subsequent acts and agreements dividing the river’s resources. In other words, the Law of the River rules rather than state law, with the water now available for diversion by the Lower Basin States and for meeting the water obligation to Mexico.

Carr says that allowing SNWA wheeling rights, “sets a precedent for other folks to do the same thing ... to use wheeling to develop rights to tributary waters to the Colorado River of the lower basin. What is good for Las Vegas then is good for anybody, on the Little Colorado, the Paria or the Bill Williams. Water supplies that would be reaching the river for apportionment under the compact could be more readily claimed as part of the deliveries within the states.”

This ultimately could affect Arizona’s Colorado River supplies. Herb Dishlip, former ADWR assistant director for planning, says, “The Lower Basin States are obliged to provide half the Colorado River water owed by treaty to Mexico. The water to meet the Mexican obligation comes from inflow below Lake Powell. If we start using all that inflow, the only way we are going to be able to make up our half of the obligation to Mexico is to take it out of our share. And that causes shortages, and that means shortages to CAP.”

Changing the Law of the River to accommodate Nevada’s water needs would be a controversial undertaking, at least outside the state of Nevada. Even within the state, the success of the proposal is doubted, if a recent Las Vegas Review-Journal editorial is any indication. The editorial espoused the wheeling cause, at the same time sarcastically shrugging off what it considered to be its inevitable result. The editorial headline read, “Wheeling the water,” with a subhead stating, “It makes good sense, so it will never happen, of course.”

Arizona and California, the other lower basin states, are decidedly against Colorado River wheeling, even though Arizona could stand to gain if wheeling were an allowable option. To allow wheeling, however, the Colorado River Compact would have to be changed or modified. States using Colorado River water generally fear this would be done at high cost, that the compact as written ensures that river waters are appropriately allocated among various interests. In the rough and tumble of water politics, the compact’s inflexibility is viewed as a virtue, ensuring that exceptions do not undermine its main purpose.

Arizona stands to gain

With no Colorado River tributaries California has little to gain from wheeling and much to lose if Colorado River flow is diminished or reduced. Arizona on the other hand does have Colorado River tributaries. What water Arizona currently pumps from its tributaries is mainly for use close to the point of diversion, with little transport required. There is, however, a situation in Arizona in which a city could benefit from wheeling a water supply through the Colorado River.

Scottsdale owns Planet Ranch and its 14,000 acre-feet of Bill Williams River water. With the ranch located nearly 200 miles from the City of Scottsdale, the water would need to be transported a great distance from its point of diversion to point of use. The city has identified several alternatives for transporting the water. One option is to build a 172-mile pipeline from the ranch to Scottsdale at a cost of about $175 million, not counting the cost of acquiring rights of way and operation and maintenance expenses. Another option is to build a 16-mile overland pipeline to discharge Bill Williams river water directly into the CAP canal for delivery to Scottsdale. This would be at a cost of about $22 million, not counting charges for using the canal.
A more direct and certainly a less expensive plan of action would be to leave Planet Ranch water in the Bill Williams River to flow directly into the Colorado River. The Bill Williams empties into the river just above the CAP intake. Scottsdale’s Bill Williams River allocation could then be pumped from the river into the canal for delivery to the city. Such a plan also would pay an environmental dividend, with Bill Williams River water benefitting a wildlife refuge downstream from what would be the point of diversion if a pipeline were built.

Such a plan seemingly offers efficiency and cost savings yet it is not a realistic option. State officials consider that whatever advantages Scottsdale may gain from the plan are more than offset by the legal problems likely to arise if the Law of the River were modified to allow wheeling. Scottsdale officials readily admit that wheeling is not an option. Beth Miller, the city’s water resource advisor, says, “We want to work within the Law of the River. ... It would obviously be less expensive for us if we were able to discharge to the river, but we understand and agree with the state’s concerns.”

Out-of-state water transfers

The northwest corner of Arizona is a land of few people and little water demand. In the area, across the state border, the town of Mesquite, Nevada is growing in leaps and bounds. The scene is set for a possible role for out-of-state water transfers.

Taking unlawful advantage of such transfers may already be the stuff, if not of legend then certainly of rumor. Mike Pearce, former ADWR chief legal council, says, “I have heard allegations many times during the years that water was actually crossing state lines up there, but it was never documented or proven to my satisfaction.”

The first legal request came in 1990 when the Mesquite Farmstead Water Association submitted an application to ADWR to pipe Arizona water over the state line for use in Nevada. High quality aquifers, both alluvial and deep, are located along Beaver Dam Wash, a tributary of the Virgin River. The Mesquite utility hoped that for the cost of a relatively short pipeline it could gain access to good quality groundwater.

The request attracted opposition. Bruce Babbitt who represented an interest in the area went so far as to propose that the Beaver Dam Wash area become an active management area to restrict groundwater pumping. The vigorous opposition from residents in the Littlefield area, however, carried the day, and the application was never acted upon.

Arizona officials anticipate the issue to arise again, with either the Virgin Valley Water District in Mesquite requesting water transfers from Arizona or an entity within Arizona applying to sell water to the Nevada utility. Either way ADWR would have to address the issue of out-of-state water transfers. The agency has not yet approved any out-of-state water transfer applications, and any actions now taken could set a legal precedent in other areas of the state and possibly along the Mexican border.

Carr says the application to transfer water would need to meet a variety of different tests. Factors ADWR would consider include the availability of water in other states to meet the need; the adequacy of Arizona’s water supply to meet the need; and the potential of conflict with existing and future Arizona water right holders. Also, a hearing would have to be held in the area of origin.

Carr says, “There is quite a burden on the ADWR to take a very hard look at any transfer request.”
Would a transfer at this point of time stand a better chance than the 1990 application? Carr says, “I really can’t say. It all depends on the circumstances.”

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