As it happens my own reverence for water has always taken the form of this constant meditation upon where water is, of an obsessive interest not in the politics of water but in the waterworks themselves, in the movement of water through aqueducts and siphons and pumps and forebays and afterbays and weirs and drains, in plumbing on the grand scale.
—Joan Didion, “Holy Water,” The White Album
In America, the West refers to those states west of the hundredth meridian of longitude. Heading south from the Canadian border, the hundredth meridian cuts through North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, and Texas. To the east of that line, average annual precipitation is over twenty inches, and crops don’t usually require irrigation. To the west, the land is mostly arid, and irrigation is essential.
In its water laws, the United States has long existed as two separate nations. Because water is mobile, varies in supply and location, and can be used in different ways (hydropower, irrigation, or recreation), it is notoriously difficult to regulate. Most Eastern states employ riparian (“along the bank of a river”) water rights, based on British common law, while many Western states rely on the right of prior appropriation, based on Spanish precedent, with roots in Latin law. Each state uses its own variation of these basic principles, and some, such as California, use elements of both systems.
In the East, riparian rights permit the use of water found on, beneath, or next to a property. The rights cannot be sold or transferred except to a neighboring property; the water cannot be transferred out of the watershed; and the use of the water must be “reasonable.” The latter is a notoriously imprecise term. What is reasonable depends on many factors, including how much precipitation has fallen, how quickly aquifers refill, or the opinions of other water rights holders. The decision about who gets to use how much water is usually judged by a court, unless a state creates a regulatory agency to determine the “reasonableness” of the water use. (Many Western states claim ownership of groundwater and allocate it through a system of appropriations.)
The nuances of Western water talk have roots in the nineteenth century, when forty-niners prospected their way across the West, while farmers and ranchers dug miles of irrigation ditches, drove Indians off water-rich land, and swiped water from one another regularly. Under the Western doctrine of prior appropriation, a person acquires property rights in water by converting it to “beneficial use,” which usually means farming, ranching, or mining.
The rule of thumb for Western water is “first in time, first in right.” If Farmer A claims the use of an aquifer before Farmer B, then Farmer A has the first, or superior, right to the water, even if Farmer B lives closer to the aquifer. (These claims can be inherited by Farmer A’s descendants.) Subsequent users can use remaining water for their own beneficial purposes, provided that they do not encroach on the rights of “senior” users. This imprecise legal framework has reliably led to conflicts ever since its inception. It presumes that water is a commodity that is distinct from the land it is found on or under, can be mortgaged or sold like other property, and can be transported out of the watershed, often via pipeline.
One of the most controversial water-conveyance schemes in US history was promoted in the 1970s and continues to crop up: to divert water from the Columbia River—the largest river in the Pacific Northwest, which flows from British Columbia, Canada, down through Washington and Oregon to the Pacific—to the dry Southwest. Promoters of this plan argued that it would be entirely beneficial, as the Columbia’s freshwater was being “wasted” as it flowed into the Pacific Ocean. This claim is one that is frequently invoked by backers of diversion projects, but it overlooks the impact a massive drawdown of river water would have on the people and the complex ecosystems that depend on existing river flows. If the Columbia’s flows are diverted on a large scale, many users would be affected: power generation by nuclear plants and the fourteen dams on the river’s main stem—and the many other dams on its tributaries—would be disrupted; so would shipping, transportation and recreation; and so would ecological health, especially among anadromous fish, such as salmon, which migrate from the Pacific upstream to freshwater and are a food source.
Another grandiose conveyance scheme is known as NAWAPA, for the North American Water and Power Alliance, a plan conceived in the 1950s by Donald Baker, a Los Angeles engineer, to divert water from Alaska and western Canada to the United States and perhaps Mexico. And NARA, the North American Recycling Alliance, envisions harnessing billions of gallons of the freshwater that discharges into James Bay, which is part of Hudson Bay in eastern Canada, shipping it to the Great Lakes via a tunnel, then distributing it throughout the United States and Canada. The idea has flared up periodically but is considered by most water experts to be impractical.
But many smaller water-conveyance projects are under way in the West, some of which have proven successful and nearly all of which have led to disputes.
Regulatory approval for a new pipeline is often the key to promoting real estate development. Since the 1980s, as increasing numbers of people relocated from the wet Northeast to the dry Southwest, economic and political pressure has built on local governments to approve new water pipelines. The rising costs and divisive politics of water have increasingly led state agencies to partner with private investors, or to step away altogether, allowing private water companies to build water pipelines of their own. Such projects enable developers to build where there is little or no water; they bring water to the people, instead of the other way around. The effect has been to promote the growth of cities in dry regions—such as Sparks, Nevada, St. George, Utah, and Yuma, Arizona—which were once considered too dry to sustain large populations.
According to the EPA, the United States and Canada now have approximately 1 million miles of pipeline and aqueducts, enough to circle the earth forty times, and entrepreneurs have filed applications to build more.
Some cities have a nearly magnetic attraction for those who dream of building water pipelines. Such a place is Denver, Colorado. The city and its suburbs are expanding, as are Boulder and Fort Collins, to the north, and Colorado Springs, to the south. These cities are all located on the Front Range, the dry eastern side of the Continental Divide (so-called because it marks the line that separates the watersheds of the Atlantic Ocean and Pacific Ocean). While 88 percent of Colorado’s population is on the eastern side of the Divide, most of its water lies on the western side.
In 2009, Denver had 610,345 residents, making it the nation’s twenty-fourth most populous city and the second-largest city in the Mountain West, after Phoenix. Denver’s twelve-county Combined Statistical Area had about 3.1 million residents. And the eighteen-county Front Range Urban Corridor had an estimated population of 4.3 million. Denver Water, the city’s water supplier, is one of the oldest water utilities in the West. It operates a complex system of reservoirs, canals, tunnels, and treatment plants to supply water to over a million people.
Transmountain diversions such as Roberts Tunnel, a twenty-three-mile-long pipeline bored through the Rockies, bring water from the Western Slope to Denver and its satellites on the Front Range.
Such major infrastructure does not come easily or cheaply. While national water fees average about $458 per residence a year, some of Denver’s expanding suburbs charge $10,000 or more for providing water to a new home. The town of Louisville charges $20,000 per house, and Broom-field charges $24,424 per house per year. Such high fees have many causes, most notably Colorado’s uniquely rigid water-court system. And as suburbs such as Thornton and Aurora reach farther and farther afield for water, they have resorted to using agents to acquire millions of dollars’ worth of land, held predawn meetings with water brokers, traded water-use credits with towns hundreds of miles away, and reseeded thousands of acres of farmland as native grassland, all to protect their water sources.
“Do I choke at the price of it?” asks Peter Binney, Aurora’s utility director. “Yes. But it’s the cost of doing business.”
While the region’s growing demand for water is straining municipal supplies, hydro-entrepreneurs see it as a golden opportunity. Many dream of bringing water to the Front Range from sources far away through pipelines.
Since the mid-1980s, Dave Miller, a retired air force colonel, has pushed a plan to divert water from the Gunnison River, in west-central Colorado, to Denver; in 2005, a federal judge ruled against him, but he has not given up. In 2003, a study of the Western Slope defined five potential pipeline sites, with costs ranging from $3 billion to $15 billion; none of them have been developed, so far, but their supporters continue to push them.
Bob Moran knows a lot about these pipeline controversies, in part because his father was a major player in one of them back in the 1950s. But he also lives in Golden, just outside Denver, which is the busiest water market in the United States. “Most of the big Western rivers have their headwaters in Colorado,” he explained. “There are more water lawyers—and water fights—in Colorado than in all of the other states combined.”
Bob Moran is a hydrogeologist, though I prefer to think of him as an Indiana Jones of freshwater. In a typical year he will travel to half a dozen states, from New Mexico to Alaska, and several nations, from Ghana to Indonesia to Romania, conducting hydrological mapping, assessing water quality, and liaising among regulators, attorneys, and policymakers. After a stint at the USGS in the 1970s, he became an independent water consultant. His clients include players from across the water spectrum—industry, government agencies, nongovernmental organizations (NGOs), tribes, environmentalists, and private investors. Some of the latter have what Moran terms a “special interest in hydrology.” These men tend to be wealthy, influential, secretive, and ambitious.
“There was this one guy—well, this is a wild story,” he began, and he launched into a tale about a mysterious billionaire’s pipeline dreams. Then Moran invited me to go have a look for myself, to see what had become of Baca Ranch and its legendary aquifer.
What makes the desert beautiful is that somewhere it hides a well.
—Antoine de Saint-Exupéry
On a hot day in August 2007, Bob Moran and I drove about 125 miles south, mostly on rural roads, from his house in Golden, just west of Denver, to the town of Crestone, in the San Luis Valley. The valley, which stretches for eight thousand square miles, from central Colorado into northern New Mexico, is a wild and beautiful place that has long attracted dramatic personalities.
In 1978, a Canadian billionaire named Maurice (pronounced “Morris”) Strong bought Baca Ranch—two hundred thousand pristine acres in the middle of the San Luis Valley—for a “fire sale price,” according to Forbes, from the oil refining consortium Tosco. Strong and his Danish wife, Hanne, fell in love with Baca and made it their permanent home. At first they planned to grow quinoa and to build a small brewery on their property. But then they discovered the aquifer, which, they later maintained, they had no idea was there when they bought the place. Given that the valley’s water supply had been studied for years by private and government hydrologists, as well as mineral and energy companies, this assertion strains credulity.
The southern part of the valley drains into the Rio Grande, but much of the northern part of the valley is a thirty-four-hundred-square-mile area called the Closed Basin. Within the Closed Basin lies the Unconfined Aquifer, whose water is connected to streams and lakes on the surface. Beneath that is a layer of impermeable clay, and then bedrock. Six miles beneath the earth’s surface is the Confined Aquifer, which is not connected to the surface water. The Confined Aquifer is a magnificent water supply that seems to make people go crazy. When USGS hydrologists surveyed the valley in 1971, they calculated that at least 2 billion acre-feet of water was stored in its upper six thousand feet of sediments. This is equivalent to fifty times the combined capacity of Lake Powell and Lake Mead, the enormous reservoirs built on the Colorado River. Depending on snowmelt, Baca Ranch itself receives an additional twenty thousand to thirty-one thousand acre-feet of surface water every year.
As a former oilman, Maurice Strong knew the resource business, and no one had to point out to him the commercial potential of the water under his ranch. He has predicted that by the year 2031 freshwater will be so scarce that in arid parts of the world it will be rationed by armed guards.
In the mid-1980s, the suburbs around Denver were one of the fastest-growing regions of the country. But their growth was limited by water. Some towns were willing to pay up to $7,000 per acre-foot for a reliable supply. At those prices, Strong was sitting on top of something like $14 trillion in water.
In 1986 he formed American Water Development Inc. (AWDI), with backing from the Vancouver billionaire Sam Belzberg and others. One of the first things AWDI did was to hire a young consultant from Denver named Bob Moran to assist in evaluating the quality and quantity of water in the Baca, and to interpret satellite images of the valley. Moran explained to AWDI’s lawyers that while there was plenty of water there, it had spent so much time working its way through heated rock deep underground that it was infused with dissolved salts and other pollutants. Moran’s recommendations to AWDI were confidential, but Strong clearly considered questions about water quality a mere bump in the road.
“It was a very interesting project, and Strong was a very mysterious man,” Moran told me. “He never said much. He had this little smile. You could never tell exactly what he was thinking, but, clearly, he was thinking big.”
Maurice Strong grew up in the Depression years in Oak Lake, Manitoba. According to legend, he graduated from high school at age fourteen, hopped a train, then worked for the merchant marine along the Canadian coast. In Alberta, he worked as a financial analyst for the oil and gas business. By twenty-five he was vice president of Dome Petroleum. By thirty-one, he was president of the Power Corporation of Canada. By forty, he was a millionaire. Later, he founded the Canadian International Development Assistance program and led Petro-Canada.
Strong has aged into a short, plump, silver-haired eminence with a soft voice, an occasional stutter, and a deferential manner—“a kind of negative charisma,” as one acquaintance put it. A self-declared environmentalist, Strong organized the first Earth Summit, in Rio de Janeiro, for the United Nations, in 1992. It was the largest summit in history at the time, and its purpose was to convince delegates from 178 nations to embark on “a new era of collective security” by replacing military buildups with environmental protections. At the UN, Strong worked as senior adviser to former secretary-general Kofi Annan until 2005, when Strong resigned in the aftermath of the Iraqi oil-for-food scandal.
One evening in 1978, a gray-bearded shaman appeared at Hanne Strong’s door at Baca Ranch and introduced himself as Glenn Anderson. “I’ve been waiting for you,” he said. “I predicted in the sixties that a foreigner would come here and build an international religious center. What took you so long?” Mrs. Strong listened carefully. She had been raised in a moneyed family in Copenhagen. During the Second World War, her mother helped the Danish Resistance smuggle Jews out of Germany. From childhood, Hanne believed she could see angels and recall past lives. She sensed she had once been a Native American, and so she had traveled to the United States to find her ancestral home.
After hearing Glenn Anderson’s prophecy, Hanne decided to turn Baca Ranch into an interfaith religious sanctuary. According to accounts she has given reporters, Hanne believes that a new Dark Age is coming, and that thanks to environmental degradation the earth’s population will shrink to about 400 million. To prepare for the coming apocalypse, she decided to build a seed bank in her basement and turn San Luis Valley, which she calls a “birthplace of ancient souls,” into a repository of world knowledge. In 1998, Hanne established the Manitou Foundation, which funds various religious orders. Today, Tibetan Buddhist monks, Carmelite nuns, Hindu gurus, humanists, an alternative community, a camp for Native Americans, wiccans, shamans, and a few stray cowboys (including a Japanese bison herder) have established themselves around Crestone, a former ghost town that now boasts a health food store, organic farms, and a bar. It is an unlikely seeming place for a water war.
At about 8,000 feet above sea level, the San Luis Valley is hot and dry, with grassy flatlands, caldera mounds, sagebrush, yucca, juniper, and scrub pine. The average rainfall is only seven and a half inches a year. Rising majestically from the desert floor are a set of enormous tan waves that undulate against the cerulean sky. These are the Great Dunes, the tallest sand dunes in North America, some peaking at 750 feet high. The sand here originated hundreds of miles away, on the Rio Grande and in the San Juan Mountains. It was lifted by winds and swept across the Rockies, then trapped here by the Sangre de Cristo Mountains. The water underlying the sandy landscape nurtures the dunes and keeps them stable. In 1932, President Herbert Hoover declared them the Great Sand Dunes National Monument.
Maurice Strong planned to pump up some of the Baca’s water—twenty-five thousand to two hundred thousand acre-feet per year—and send it through a fifty-mile pipeline to a river that would carry it north to Denver and its suburbs. Annual revenues for AWDI were projected to be $175 million to $1.4 billion.
Though the San Luis Valley is one of the poorest regions in Colorado, farmers there had some eighty thousand acres of potatoes and carrots under cultivation. They feared AWDI’s pumping would lower the water table. Greg Gosar, an organic farmer, predicted, “They’re going to dry up this valley … and make obscene amounts of money doing it…. Unfortunately, greed isn’t illegal in America.” The Rio Grande Water Conservation District, the largely tax-funded entity responsible for managing the valley’s water, sued AWDI in state water court. Environmental groups joined the opposition. Admirers of the Great Dunes feared that drying up the valley would hurt the sandy waves. A group called Citizens for San Luis Valley Water held bake sales to raise funds to fight Strong’s plan. Cars in the valley, even the police cars, wore anti-AWDI bumper stickers. A videotape was handed around, accusing Strong of being part of an “international conspiracy” to take over the world, and of warehousing millions of dollars’ worth of US currency in Canada to prepare for a new global order. Then the National Park Service objected to Strong’s planned water pipe.
Stung by the criticism, Strong objected to the accusations of greed. “We love this valley. We live there,” he said. But his financial partners were growing increasingly uncomfortable with Hanne, who herself had become an obstruction to Strong’s ambitions. She declared to journalists that beneath the valley floor lay a sacred lake lined with crystals; a powerful energy field protected the lake from evil channelers from Vancouver who had launched a massive psychic attack on the Baca. “I know one thing for sure,” she said. “This water will never leave the valley!”
US Geological Survey hydrologists had discovered that the water under the San Luis Valley is part of a vast underground system that flows from Canada through Colorado, New Mexico, and Texas into Mexico. Made up of multiple connected aquifers, it is one of North America’s largest stores of groundwater. Strong’s plan to siphon off much of the water midstream had caught the attention of state and federal regulators.
In May 1994, after eight years of controversy, the Colorado Supreme Court denied AWDI pumping rights and granted a motion filed by Strong’s opponents to recover $3.1 million in legal and scientific costs. Strong’s lawyers appealed to the US Supreme Court, which declined to hear the case. (After a protracted negotiation, Strong reportedly retained certain rights to Baca’s water and was paid $1.2 million by the water company.) Strong threw in the towel. He resigned as chairman of AWDI and donated his company shares to a foundation.
One of the loudest voices of opposition to AWDI had come from Gary Boyce, a local rancher. Born into modest means, Boyce had let the San Luis Valley to work at equestrian stables across the country. He became an expert in training racehorses, and his grateful clients guided Boyce into a series of lucrative investments. After he married, he bought the fifty-five-hundred-acre Rancho Rosado, next to Strong’s Baca Ranch, and moved back to the beautiful valley.
In 1995, AWDI put ninety-seven thousand acres of Baca Ranch up for sale. The Nature Conservancy bid on it, but Boyce won the parcel for about $16 million. Boyce’s partner in the deal was Farallon Capital Management, one of the world’s largest hedge funds, based in San Francisco. (It would later come to light that Farallon’s Vaca Partners put up all of the $8 million in equity and $8 million in loans used to purchase the ranch.) The following year, Boyce incorporated Stockman’s Water Company and declared his intention to pump water from the valley. His neighbors were stunned. Asked by reporters how he could protest AWDI’s water project one minute and promote his own pumping scheme the next, Boyce just smiled and said, “Water is gold.”
Now the Baca’s water was worth even more than when AWDI was trying to commercialize it. Between 1990 and 2000, a million people had moved to Colorado’s Front Range. Douglas County, between Denver and Colorado Springs, was the fastest-growing county in the nation, not to mention one of its driest. Stockman’s Water Company proposed to deliver 150,000 acre-feet of water to the region annually, for a cool $750 million a year.
To blunt criticism, Boyce claimed that his pumping plan was totally different from Strong’s because he would take only “a small percentage” of the water from the Confined Aquifer. If any of his neighbors was hurt by his water pumping, Boyce promised, he would compensate them. To mollify environmentalists, he said he would establish a wildlife refuge and protect his two fourteen-thousand-foot peaks from development.
Once again, the Rio Grande Water Conservation District rallied the troops, painted signs, held bake sales, called legislators, and went to court to block two ballot initiatives backed by Stockman’s Water Company. They accused Boyce of “water mining”—the depletion of groundwater faster than nature can replenish it—and warned of the dangers of “out-of-state investors.” The dispute had a distinctly ad hominem edge. Lewis Entz, the local state representative, characterized Boyce as “a drugstore cowboy” driven by revenge: “He’s still mad at the potato farmers because they had a few more dollars to spend than he did when he was a kid. He’s bitter and vindictive. So now he’s gonna get even with us spud farmers come hell or high water. It’s a personal deal with him.”
Boyce, blowing cigar smoke, smiled wryly. “That’s the way they are down in the San Luis Valley. Those kinds of [attacks] have always worked for them…. What you’ve got is a bunch of corporate farmers who are taking advantage of the system. I’m simply saying that’s not right.”
In 1998, state attorney general Ken Salazar—a fifth-generation native of the San Luis Valley, and now President Obama’s interior secretary—strongly opposed Boyce’s initiative. That year, a law passed by the Colorado legislature and the defeat of Boyce’s ballot initiatives ended Stockman’s Water Company’s bid to export the valley’s water. Boyce blamed “uninformed voters” who did not understand the complex issues. Lewis Entz had another explanation: “When people come down here and try to start trouble, we work them over.”
In April 2001 Boyce and Farallon agreed to sell their Baca holdings to the Nature Conservancy for $33 million. This was more than twice what they had paid for it only six years earlier and would have represented a 40 percent profit. But in January 2002, a union report noted that Farallon’s Vaca Partners was 50 percent owned by Yale University. This revelation hit like a mortar round. Yale was excoriated for a “secret investment” in a project many people deemed morally compromised. The story set off a pyrotechnical display of criticism, made national headlines, and embarrassed the university.
Yale agreed to donate $4 million to the Nature Conservancy from the university’s profits from the sale of its Baca holdings. But in early 2004, Yale reneged, saying it would reduce its charitable donation to $1.5 million. Students wrote impassioned editorials in protest, pushed the university to define its ethical investing, and picketed the university’s investment office. In the end, Yale donated $1.6 million in profits from the ranch sale to the Nature Conservancy. (Thereafter, Yale stopped including the names and addresses of companies it invests in on its tax returns.)
In September 2004, the Nature Conservancy led the federal acquisition of the 151-square-mile, 97,000-acre parcel of Baca Ranch, for $33 million. The Great Sand Dunes was officially designated America’s fifty-eighth and newest national park. One section of the park was deemed so ecologically sensitive that it was designated the Baca Wildlife Refuge and closed to the public. At last, the water under Baca Ranch appeared to be protected forever. To tap into the Baca’s aquifer, the federal government must apply for water rights from the Colorado state court. “There will be no change in the way the water is used,” said Charles Bedford, the Nature Conservancy’s state director. “There will be no pumping.”
But as he squinted up at the Great Dunes in August 2007, Bob Moran said, “I wish I could be so optimistic. Maybe I have a touch of my dad in me. But I’ve seen enough to know how the world works. Politicians come and go, laws change. Nothing is permanent—especially when it comes to water. Someone is always going to try to game the system.”
As I later discovered, Lexam Explorations, a Canadian energy company, had announced the previous December that while the federal government owned the surface of the park, Lexam and its partner, ConocoPhillips, had owned the mineral rights beneath the surface long before the park was protected. Under Western law, this gave them “senior” rights to the underground resources. Lexam also had a surface-use agreement in place, meaning they were allowed to drive heavy equipment into the preserve and drill in the area deemed so ecologically sensitive that the public is not allowed to visit it.
In drilling for gold in 1992, Lexam had discovered oil and gas reserves on the western flank of the Sangre de Cristo Mountains. Oil and gas drilling uses lots of water and often spews toxins into the environment. The company planned to drill two fourteen-thousand-foot test wells in the Baca Wildlife Refuge and said on its website that “the potential of the prospect is promising.”
Valley citizens, Indian tribes, historians, and environmentalists were outraged. In 2008, over forty-seven thousand public comments were filed about the plan. The San Luis Valley Ecosystem Council filed a lawsuit charging that the US Fish and Wildlife Service had a duty to protect the refuge, to involve the public in the discussion, and to establish environmental safeguards.
In November 2008, the Fish and Wildlife Service ruled that Lexam’s drilling would have “no significant impact.” But environmental groups used a Freedom of Information Act request to obtain communications between regulators, Lexam, and their consultants and charged the company had exerted “inappropriate influence” on the environmental assessment of the site, “including specific wording edits … and inappropriate exchange of information.” In 2009, a US district court judge issued a preliminary injunction against drilling in the refuge, and settlement talks got under way. In 2010, the litigation was ongoing, though Lexam appeared willing to sell its Baca mineral rights to the government for some $9.7 million, allowing them to be retired and presumably protecting the refuge and its water supply once and for all.
If that happens, it will be a significant victory for those who would protect water supplies over those who would profit from them. But in the history of the American West, it has been far more common for the pipeline dreamers and profiteers to triumph. No case exemplifies this more starkly than Los Angeles’s notorious “water theft.”