As Lake Powell and other vital water sources in the Colorado River Basin face increasing stress, researchers are calling attention to a simple yet critical legal reform that could help secure the region's water future.
A recent study by a consortium of scientists, including experts from the University of Virginia, suggests that closing Colorado's "free river conditions" loophole could play a key role in stabilizing water supplies and safeguarding reservoirs like Lake Powell.
The loophole is a remnant of historic water-sharing agreements between the seven states, 25 Native American tribes and parts of Mexico that rely on the Colorado River—some 40 million people. It allows anyone in Colorado to divert unlimited water from the river when it carries enough to meet everyone's needs, regardless of their water rights.
"Closing this loophole in Colorado's water rights system could save millions of cubic meters of water and be the state's modest contribution to solving water stress in the Colorado River Basin," lead author Peter Debaere said in a statement.
The researchers argue that free river conditions undermine efforts to manage water more sustainably, particularly during times of scarcity.
During such conditions in 2017, an estimated 28.5 million gallons of water that could have been stored in Lake Powell was instead diverted under this rule, exacerbating water shortages.
Lake Powell, a crucial reservoir along the Colorado River, has seen its water levels drop dramatically in recent years due to prolonged drought, reduced snowpack and rising temperatures.
By mid-2022, the situation in the basin had become so dire that the federal government issued a "shortage" declaration, urging states to reduce water usage.
"Every sector in every state has a responsibility to ensure that water is used with maximum efficiency. In order to avoid a catastrophic collapse of the Colorado River System and a future of uncertainty and conflict, water use in the basin must be reduced," the Department of the Interior Assistant Secretary for Water and Science Tanya Trujillo said at the time.
A particularly wet winter in 2022–23 brought some relief, yet Lake Powell was still only at 38.8 percent capacity as of August 19, 2024. Back in 2000, it was nearly full, the researchers said.
Without structural changes in water management, the team fears that other measures, such as payments for a fallowing program, could be undermined.
"[The loophole] threatens the success of any payment program," study co-author Julianne Quinn said in a statement. "If the water 'saved' by paying farmers not to irrigate results in more frequent free river conditions, someone else can then legally divert that saved water in excess of their right, defeating the purpose."
The implications for Lake Powell could be significant. By closing this loophole, more water could be conserved in the reservoir, reducing the risk of future shortages and ensuring a more reliable supply for the millions who depend on it.
Newsweek reached out to the Colorado Water Conservation Board via email for comment.
Other experts agree that it's time to end free river conditions, though they aren't convinced how much impact scrapping them would have without more stringent requirements for users to adhere to existing water rights.
"The Colorado rule of 'free river conditions' is a historic anomaly that encourages absurd water diversions that harm rivers. Repealing it makes sense. But I wonder how much change that will produce in the real world, " Robert Glennon, a water policy and law expert at the University of Arizona and author of Unquenchable: America's Water Crisis and What To Do About It, told Newsweek.
"Alas, lots of users divert more water than their decreed rights allow. What would really help the Colorado River is if water courts in Colorado and administrative agencies in the other Basin States required existing diverters to adhere to the limits of their rights."
As the seven states renegotiate their rights to the Colorado River with key agreements set to expire in 2025, the study's authors argue that addressing the free river condition should be a priority.
Whether that will happen, however, remains uncertain. "We didn't get strong opposition, but we also didn't get a lot of support," Quinn told Newsweek, explaining the reaction from water users to the proposals.
"We think this could be an olive branch that the state of Colorado could offer to help save water that shouldn't be too impactful on them as water users. It could also pave the way for other water management programs to thrive," Quinn said.
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References
Debaere, P., Li, T., Fox, S., Bennett, K., Block, P., Hietpas, K., Mekonnen, M., Quinn, J. D., Richter, B., Sharma, S., & Singh, S. (2024). Closing Loopholes in Water Rights Systems to Save Water: The Colorado River Basin. Water Resources Research, 60(8). https://doi.org/10.1029/2023WR036667
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