Blog By: Mary Jocelyn
Water is essential to all life, supporting cell structure, regulating body temperature, and dissolving invaluable life-sustaining nutrients.[i] Our planet naturally recycles and redistributes this vital resource.[ii] Unfortunately, precipitation has long plagued societies, storying them with flood and drought.[iii] When these sagas of drought span decades and vast regions, as in the Western United States, they rise to the level of a megadrought.[iv] Here, citizens are on the verge of crisis, battling the worst megadrought the continent has seen in over 1,200 years. [v]
The crux of the pending crisis rests in the fleeting intersection of supply and demand of water, with the megadrought obliterating any chance of resupply while booming population changes require domestic water. [vi] Furthering the demand problem in this region is the need for water to generate electricity and vast irrigation networks that channel water to agriculture, which would fail otherwise.[vii] Without natural resupply, these citizens may face electricity shutdowns and increased food costs, in addition to limited drinking water very shortly.[viii]
States west of the Rocky Mountains experience this water scarcity. It is best illustrated in the Colorado River Basin, which includes California, Arizona, Nevada, Utah, New Mexico, Colorado, and Wyoming. For decades, policymakers have relied on conservation efforts to reduce unnecessary water use.[ix] Water agencies have imposed limits on outdoor watering and have even incentivized homeowners to remove lawns by paying them to replace grass with turf.[x] The Federal Government and States have also paid farmers to stop growing crops, all in the name of water conservation.[xi] As the region’s population density only rises, one element remains constant: the Western United States needs water now![xii]
Despite best efforts to conserve water, the Colorado River Basin policymakers now realize they must address the water supply problem to make any headway.[xiii] These policymakers rely on science to “make it rain” by extracting atmospheric water when and where it is needed through artificial means called cloud seeding.[xiv] Cloud seeding uses chemicals to stimulate natural condensation in the clouds, which then causes water vapor molecules to merge, eventually forming large enough droplets that precipitate rain or snow.[xv] This solution yields nearly ten percent more precipitation[xvi] and is the most cost-effective method to address the water supply problem because it is cheaper than every other solution pitched so far.[xvii]
The States that compose the Colorado River Basin now employ cloud seeding to help increase the river levels, forming the Colorado River Weather Modification Agreement.[xviii] Through their respective water agencies, these states will fund operations in the Upper Basin states, namely Colorado, New Mexico, Utah, and Wyoming, to increase snowpack and eventually runoff.[xix]
However, increased litigation risk is an unfortunate side effect that can shut down operations pending resolution. Curbing this risk will require these states to unite under a single policy that should be incorporated into the Agreement and may require individual states to make legislative changes regarding artificial rainfall.
Like most states west of the Mississippi River, the Colorado River Basin States subscribe to the doctrine of appropriation.[xx] Under this doctrine, all water must be appropriated in some capacity; otherwise, it is wasted.[xxi] Accordingly, new water must be captured to prevent waste, with those individuals doing so having priority over all others, so long as there is proof of beneficial use.[xxii] Ergo, generally under this doctrine, anyone who captures atmospheric waters, which would otherwise be wasted but for cloud seeding, establish a priority to use that water over all others.[xxiii]
However, New Mexico, Colorado, and Wyoming provide a caveat to this general rule. These States claim sovereign ownership over all atmospheric water within their borders. [xxiv] Because these states act as the sovereign trustee over all water, any artificially induced rain inside New Mexico, Colorado, and Wyoming is likely on the same level as water in streams, lakes, or rivers, requiring the government to hold it in trust for the benefit of its citizens..[xxv] If it is demonstrated that these waters benefit non-citizens downstream, then litigation could delay operations. Considering the Agreement stipulates no changes to existing law, state courts will likely consider the interplay of the Colorado Weather Modification Agreement and their state’s public trust doctrine as an issue of first impression.
In a world where water is scarce, states with an automatic claim and priority over the extracted water strongly incentivize cloud seeding operations. Theoretically, the focus should foster behaviors that deliver efficiency to satisfy the demand.[xxvi] It also can create conditions ripe for exploitation because private companies could control more water reserves than anyone ever intended, intensifying the desperation and costs throughout the region. While New Mexico, Colorado, and Wyoming’s public trust doctrine may prevent this unintended consequence, it places a more significant burden for cloud seeding on the government and taxpayers and disincentives private cloud seeding operations.[xxvii]
Regional policymakers should ensure the Colorado River Weather Modification Agreement incorporates the public trust doctrine’s protections in some aspect. While this will increase litigation risk due to conflicting use rights between the states, the risk can be mitigated if the Project has a provision subordinating individual states’ use rights to benefit the river during the crisis. However, this subordination should not be absolute. Instead, its expiration should based on target river volumes apportioned by a percentage of water resources per capita, rather than just set acre-feet. Of course, those states formally extending the public trust doctrine to atmospheric water must pass legislation specifically subordinating that right for this plan to be possible. Making the right legislative and policy changes will only accelerate the momentum for this highly effective solution to combat the water crisis in the Western United States!
[i] See Molly Sargen, Biological Roles of Water: Why is Water Necessary for Life?, Harv. Graduate Sch. of Arts and Sciences Blog (Sept. 26, 2019), https://sitn.hms.harvard.edu/uncategorized/2019/biological-roles-of-water-why-is-water-necessary-for-life/ [https://perma.cc/3TFC-LTGT].
[ii] Water Cycle, Nat'l Oceanic and Atmospheric Admin. (Feb. 1, 2019), https://www.noaa.gov/education/resource-collections/freshwater/water-cycle#:~:text=The%20water%20cycle%20on%20Earth&text=It%20is%20a%20complex%20system,through%20the%20atmosphere%20(transportation) [https://perma.cc/Z5G3-M6H7].
[iii] For example, the story of Noah building an ark to escape the Great Flood. See Genesis 1:6-8 (King James). By comparison, prolonged droughts in the American Midwest were a contributor to the Great American Dust Bowl. Compare with Timothy Egan, The Worst Hard Time: The Untold Story of Those Who Survived the Great American Dust Bowl, Nat’l Drought Mitigation Ctr (2005) https://drought.unl.edu/dustbowl/ [https://perma.cc/QA7A-WTYF].
[iv] See Benjamin Cook, Megadroughts in the Common Era and the Anthropocene, Nat'l Integration Drought Info. Sys. (Nov. 15, 2022), https://www.drought.gov/news/megadroughts-common-era-and-anthropocene-2022-11-15 [https://perma.cc/WVL5-KYFQ].
[v] See Nathan Rott, Study Finds Western Megadrought is the Worst in 1200 Years, NPR: Rsch. News (Feb. 14, 2022) https://www.npr.org/2022/02/14/1080302434/study-finds-western-megadrought-is-the-worst-in-1-200-years#:~:text=Study%20finds%20Western%20megadrought%20is%20the%20worst%20in%201%2C200%20years%20%3A%20NPR&text=Tiny%20Desk,Study%20finds%20Western%20megadrought%20is%20the%20worst%20in%201%2C200%20years,today%27s%20was%20in%20the%201500s [https://perma.cc/3PCX-8B29]; see also A.P. Williams, et al, Rapid Intensification of the Emerging Southwestern North American Megadrought 2020-2021, 12 Brief Commc'n: Nature Climate Change 232 (2022) [https://perma.cc/FQE9-EZDD].
[vi] Id.
[vii] See Colorado River Basin Water Supply and Demand Study: Executive Summary, U.S. Dep't of the Interior Bureau of Reclamation at 1 (2012) https://www.usbr.gov/lc/region/programs/crbstudy/finalreport/Executive%20Summary/CRBS_Executive_Summary_FINAL.pdf [https://perma.cc/2BT7-ZLEF] (hereinafter “Colorado River Basin Study”).
[viii] Dead pool conditions occur when a reservoir drops too low to flow downstream. See David Dudley, What Does “Dead Pool” Mean for the American West, Sierra (May 8, 2023), https://www.sierraclub.org/sierra/what-does-dead-pool-mean-american-west#:~:text=Put%20simply%2C%20dead%20pool%20occurs,dead%20pool%20at%203%2C374%20feet [https://perma.cc/7LGR-DF6X].
[ix] See Mark Olakde, Why the Second-Driest State Rejects Water Conservation, ProPublica (Dec. 16, 2021), https://www.propublica.org/article/why-the-second-driest-state-rejects-water-conservation [https://perma.cc/JR4C-K852].
[x] See Matthew Kahn & Bsaskar Krishnamachari, A New Strategy for Western States to Adapt to Long-term Drought: Customized Water Pricing, The Conversation, https://theconversation.com/a-new-strategy-for-western-states-to-adapt-to-long-term-drought-customized-water-pricing-197382#:~:text=Confronted%20with%20a%20shrinking%20supply,incentives%20to%20rip%20out%20lawns (last viewed Sept. 16, 2023) [https://perma.cc/WPM7-EL42].
[xi] See Ethan Dodd, The Biden Administration is Offering to Pay Colorado River Farmers to Let Fields Go Dry During a Devastating Drought, Insider: Economy (Mar. 19, 2023), https://www.businessinsider.com/water-california-colorado-farmers-fear-drought-climate-change-biden-funding-2023-3#:~:text=With%20those%20federal%20dollars%2C%20the,that%20they%20didn%27t%20use [https://perma.cc/NL7R-QBMD].
[xii] See Colorado River Basin Study, supra, note vii.
[xiii] See Chelsea Harvey, Eight States Are Seeding Clouds to Overcome Megadrought, Scientific American (Mar. 16, 2021), https://www.scientificamerican.com/article/eight-states-are-seeding-clouds-to-overcome-megadrought/ [https://perma.cc/P25H-2JJC].
[xiv] Cloud seeding and weather modification are used interchangeably. See Manon Simon, Enhancing the Weather: Governance of Weather Modification Activities in the United States, 46 Wm. & Mary Envtl. L. & Pol'y Rev. 149, 150 (2021).
[xv] See Seeding the Skies, Harvesting Rain, U.S. Dep't of Agric. (Sept. 21, 2022), https://www.ars.usda.gov/oc/dof/seeding-the-skies-harvesting-rain/ [https://perma.cc/KK9W-X5PV]; see also, Ray Jay Davis, Weather Modification, Stream Flow Augmentation, and the Law, 24 ROCKY MTN. MIN. L. INST. 22 (1978).
[xvi] See Elyse DeFranco, Making it Snow: a Brief History and Review of the Science Behind Cloud-Seeding, Desert Rsch. Inst. (Mar. 15, 2023), https://www.dri.edu/making-it-snow/#:~:text=Although%20not%20a%20panacea%20for,seasonal%20precipitation%20by%20about%2010%25 [https://perma.cc/U7XQ-CSGJ].
[xvii] Other methods cost at least three times more than cloud seeding, such as desalination or forcing hydrogen and oxygen atoms into water molecules. See generally, Steven T. Sonka, Economics of Weather Modification: A Review, 89 Ill. Inst. Nat. Res. Rep. Investigation 51 (1979); see also, Adriana Velez-Leon, Rain on Demand: Regulating Weather Modification Throughout the United States, 8 George Wash. J. Energy & Env't 148, 150 (2017).
[xviii] See Colorado River Basin Weather Modification Agreement (2018), https://library.cap-az.com/documents/meetings/2018-03-01/1683-4d-Web-Final-Action-Brief-CRC-Weather-Modification.pdf [https://perma.cc/F4KM-A6RJ].
[xix] Id.
[xx] See Coffin v. Left Hand Ditch Co., 6 Colo. 443 (Col. 1882); Jones v. Adams, 19 Nev. 78 (Nev. 1885); Moyer v. Preston, 6 Wyo. 308 (Wyo. 1896); Stowell v. Johnson, 7 Utah 215 (Utah 1891); Clough v. Wing, 2 Ariz. 371 (Ariz. 1888); Trambley v. Luterman, 6 N.M. 15 (N.M. 1891); Irwin v. Phillips, 5 Cal. 140 (Cal. 1855).
[xxi] See James Rasband, et al., Natural Resources L. and Policy 842-43 (3rd ed. 2016) (discussing the law of prior appropriation).
[xxii] Id.
[xxiii] See Ward Fischer, Weather Modification and the Right of Capture, 8 NAT. RES. L. 639, 642 (1976).
[xxiv] The Colorado State Constitution says the right to divert unappropriated waters (which are property of the public) for beneficial uses shall never be denied. See Colo. Const. art. XVI, §§ 5, 6. Further, the Colorado General Assembly declared that the state claims the right to all moisture suspended in the atmosphere that falls or is artificially induced to fall within its borders. See also COLO. REV. STAT. § 36-20-103 (1972); Compare WYO. STAT. § 9-1-905(a)(i) (1951) (The state of Wyoming claims its sovereign right to the use for its residents and best interests of the moisture contained in the clouds and atmosphere within its sovereign state boundaries.); with
N.M. STAT. § 75-3-3 (1978) (“[T]he state of New Mexico claims the right to all moisture in the atmosphere which would fall so as to become a part of the natural streams or percolated water of New Mexico....”).
[xxv] See Jordan Ellis, The Sky’s the Limit: Applying the Public Trust Doctrine to the Atmosphere, 86 Temp. L. Rev. 807, 810-11 (2014).
[xxvi] See John Goodman & Gary Loveman, Does Privatization Serve the Public Interest, Harv. Bus. Rev. (Nov.-Dec. 1991), https://hbr.org/1991/11/does-privatization-serve-the-public-interest [https://perma.cc/E22V-S9NM].
[xxvii] Id.