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Colorado River Users Expect Biden to Put Focus on Climate Change

Nov. 18, 2020, 8:32 PM

The incoming Biden administration will lead efforts to craft a new water-management regime for the seven-state Colorado River Basin, and people involved in the process expect any changes to reflect the impact of climate change in the basin.

The Bureau of Reclamation, under the Interior Department, will lead negotiations to replace 13-year-old interim guidelines used to operate the basin’s two major reservoirs, Lake Powell and Lake Mead. The Interior secretary also manages the lower basin, containing all the water below Hoover Dam.

Revisions should reflect ecological values, water rights of American Indian tribes, and the need for more conservation measures by users in the seven states—Arizona, California and Nevada in the lower basin and Colorado, New Mexico, Utah and Wyoming in the upper basin, those involved in the process said.

“We’re hoping they’ll foster negotiations that are rooted in science and create a framework that recognizes how climate change is affecting and will continue to affect the basin,” said Kim Mitchell, senior water policy adviser in the Phoenix office of Western Resource Advocates, an environmental group.

Those following the issue said they were encouraged Biden named someone to his Interior Department transition team who knows about the Colorado River—Tanya Trujillo, a water lawyer who works as a project director for the conservation group Colorado River Sustainability Campaign.

Trujillo was previously the Interior Department’s counselor to the assistant secretary for water and science and senior counsel to the U.S. Senate Energy and Natural Resources Committee. She also has served as executive director of the Colorado River Board of California, which represents the state negotiations about the river basin.

Drought, Other Demands

Biden has proposed a sweeping climate agenda that includes a renewable energy infrastructure, cleaner cars and zero-emission mass transit systems, along with environmental justice efforts and a pledge to aid climate litigation.

The region has faced a multi-year drought, decreasing system storage, and growing demands on the river, the primary water source for 40 million people and 4 million acres of farmland in the Southwest.

The 2007 guidelines, which expire on Dec. 31, 2025, provide flexibility to conserve and store water in the basin and certainty to water users about the timing and volumes of potential reductions in state water allotments.

Mitchell said the states will need to have negotiations wrapped up by 2023 to allow time to get new guidelines in place by 2026.

The guidelines are one set of principles among the multiple compacts, federal laws, court decisions, decrees, contracts, and regulations known collectively as the “Law of the River,” determining water allotments and governing water use and management by the seven basin states and Mexico. The Endangered Species Act and numerous Native American water rights settlements also influence water use in the basin.

Final Conclusions

Bureau of Reclamation officials in the Trump administration recently reviewed the 2007 guidelines, and will release its final conclusions before the end of the year, said Carly Jerla, the Lower Basin region’s manager for the review. Those conclusions will serve as a reference point and source of data for negotiations between the Biden administration, the seven states, and Mexico.

Historically dry conditions required the states last year to adopt measures to reduce the risks of drought in the basin. The Drought Contingency Plan is the most recent addition to the Law of the River and serves as an overlay of the 2007 guidelines.

Drought concerns are expected to be at the forefront of upcoming negotiations.

“We’re significantly below average in snowpack, runoff, and monsoon seasons over the last few years,” said Matt Rice of the environmental group American Rivers.

The Drought Contingency Plan “saved our bacon,” said attorney James Eklund of Eklund & Hanlon in Denver, and Colorado’s representative in those negotiations. The 2007 Interim Guidelines weren’t enough to avert a crisis, he said.

“We couldn’t wait around for new guidelines in 2026,” he said. “We would have drained Mead and Powell by now.”

‘Protected from Crazy’

Water districts, state and federal partners, and representatives of water users along the river, have historically avoided partisanship in determining water allocation and other critical issues such as conservation, natural resource values, and even climate change, said John Fleck, director of the University of New Mexico’s Water Resources Program.

“One of the things we have seen during the last four years is that Colorado River Basin governance was largely protected from the crazy,” he said. “You saw a pretty steady hand with professional river managers, and relatively low interference from the political appointee level.”

Meanwhile, Native American tribes say they will assert their rights in future negotiations on water management in the basin.

Seventeen tribes in the basin recently urged the Interior Department in writing for “direct and meaningful consultation” with them on such matters as water rights, conservation programs and governance processes.

The 29 tribes along the Colorado River hold some of the most senior water rights in the basin and control about 20% of the river’s annual flow. The tribes have traditionally been excluded from water resource decision making and were largely ignored during the development of the 2007 guidelines.

To contact the reporter on this story: Tripp Baltz in Denver at abaltz@bloomberglaw.com

To contact the editor responsible for this story: Rebecca Baker at rbaker@bloombergindustry.com

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