‘Alarming’ Colorado River Cuts Plan Seen as Tactic to Spur Talks

A proposal for mandated Colorado River water use cuts outlined by the Interior Department this week is intended to show the extremes of possible federal action to spur states to reach a water conservation agreement themselves and avoid litigation, negotiators and water law watchers say.

But if the Biden administration moves ahead with either of its proposals for forced water cuts, litigation is nearly inevitable, and would likely reach the Supreme Court.

The scenarios appear designed to “motivate parties to find common ground between two extremes and avoid litigation that otherwise might result,” said David Osias, a partner at Allen Matkins Leck Gamble Mallory & Natsis LLP in San Diego.

Drought ravaging the Southwest over the last 23 years has led water levels in the region’s two largest reservoirs, lakes Mead and Powell, to drop so low that the hydropower plants at Hoover and Glen Canyon dams could be damaged and would have to shut down if water drops even lower. A shutdown would disrupt the electric power supply for millions across eight states.

The Interior’s Bureau of Reclamation last year asked the seven river basin states to come up with a water cutting plan to save the dams, and said the agency would this year update its 2007 guidelines for how to deal with drought on the Colorado River.

More than 40 million people from Denver to Los Angeles and numerous farmers rely on water from the river, and water cuts could severely strain cities and growers.

The agency published its draft environmental review of that drought plan on Tuesday after the states submitted conflicting proposals for cuts in January.

The stakes are especially high for Arizona, where one of the state’s primary water sources, the Central Arizona Project, could completely lose its right to Colorado River water under the scenarios the bureau is considering.

Cities across Arizona will have to tap alternative water supplies, and some may not have the infrastructure in place to do so, Tom Buschatzke, director of the Arizona Department of Water Resources, said Wednesday.

“Those are pretty dire consequences when you have major economic centers, cities, people facing very significant cuts,” he said.

‘Substantial Litigation’

Interior officials said they want the states to reach an agreement, but if they can’t, the bureau envisioned two possible ways it could force water use cuts beyond the status quo.

The first is to follow established law and mandate cuts in Nevada, Arizona, and California according to existing water rights priority.

Under the second option, the bureau would force all Colorado River water use in those three states to be cut by a certain percentage, straying from established legal precedent in the process.

The review is open for public comment through the end of May, and is set to be finalized over the summer. The final version will inform the bureau’s expected August decision about 2024 water cuts for river water users.

Litigation is inevitable if either option is implemented because neither will appease all the water users who’d be affected, said Heather Tanana, an assistant professor of law at the University of Utah.

“It may be the final push needed to help all the states reach an agreement,” she said.

‘Alarming’ for the Tribes

But the second option “will generate litigation of substantial importance,” Osias said.

That option undermines a federal law that stipulates that California’s rights to Colorado River water take priority over Arizona’s, he said, adding that there is little legal precedent for a flat cut.

The Colorado River Basin is divided in two. Most of the river’s water comes from mountains in the upstream states of Colorado, Wyoming, Utah and New Mexico. By law, those states have to send water each year to the downstream states of California, Arizona and Nevada, where most of the region’s people live.

That water is stored in Lake Powell and is sent downstream through the Grand Canyon to Lake Mead, where the Lower Colorado River Basin states store the water to be sent to Los Angeles, Phoenix and the farmers in between.

The second alternative, a flat cut, is on “shaky legal ground” because it entirely sets aside the water rights priority system in place in the Lower Basin states, said Philip Womble, a fellow at Stanford Law School.

That scenario would trigger lawsuits from California and water users within the state that could end up at the Supreme Court, he said.

The second alternative is “alarming” because it disregards the senior water rights of tribes, said Jay Weiner, of counsel at Rosette LLP in Sacramento who represents the Quechan Tribe near Yuma, Ariz.

Though Interior presents the second alternative as equitable, “it would in fact be deeply inequiteable to impose those sorts of cuts” on tribes who’ve been historically left out of federal and state water investments and excluded from river basin governance, Weiner said.

But Interior seems to intend for states to use the two alternatives as “bookends,” and the final negotiated solution will be between the two, Womble said.

“It’s important at this stage not to put too much stock in one alternative or the other as to where the feds might land,” he said. “Seems what they are trying to do is present two extremes.”

‘Bookends’

The states themselves see the two alternatives as just that—bookends.

“There are pros and cons to either Alternative 1 and Alternative 2, but those provide bookends on either end of the spectrum,” JB Hamby, chairman of the Colorado River Board of California, told Bloomberg Law.

The first alternative is more legally sound than the second, and the state will do all it can to protect its water rights through negotiation, he said.

“The overriding goal is not to have to pick Alternative 1 or Alternative 2,” and instead reach a consensus among the seven basin states, Hamby said.

California views the deadline for such a consensus to be the end of May, when the Bureau of Reclamation’s public comment period ends, he said.

Estevan Lopez, the Upper Colorado River Compact Commissioner from New Mexico, said he agrees with that time frame, and that a consensus would likely be reached between the bureau’s two possible cuts scenarios.

The bureau’s environmental review “really does provide an impetus and a framework” for the seven states to find a solution between the extremes, he said.