These key players could decide the fate of the Colorado River drought deal

Federal Reclamation Commissioner Brenda Burman has drawn a line in the sand for Arizona and other Western states: Finish a deal to take less water from the Colorado River by Thursday, or the federal government will be forced to step in and decide how to prevent reservoirs from falling to critical levels.

With just four days until that deadline, many pieces have yet to fall into place for Arizona to finish its part of the agreement and join California and Nevada in endorsing the Drought Contingency Plan.

The plan’s success or failure will turn on the actions of a few key players, including leaders of the Legislature, tribes, farmers, cities and the state’s water managers.

If any of the main players pull out, the state’s carefully negotiated compromise could unravel and the plan could fall apart. Just such a breakdown seemed possible this week, when the Gila River Indian Community warned that the introduction of another water bill could kill the deal.

If Arizona fails to sign the three-state Drought Contingency Plan, the federal government would be in charge of dictating water cutbacks. Water users that rely on the Central Arizona Project canal have the lowest priority among the three states on the lower river and would be first in line for cuts. If the federal government takes charge of deciding the reductions, that also might unleash a cascade of lawsuits.

To finish the agreement, the state Legislature would need to pass a package of legislation making the deal possible and allowing for its signing. Whether that will happen before the deadline isn’t clear.

House Speaker Rusty Bowers said this week that while lawmakers are working hard to get a deal done, meeting the deadline isn’t his chief priority.

Burman has warned that if Arizona or any other state doesn’t sign on in time, the Interior Department will ask all seven states that rely on the river for recommendations on what the government should do to prevent reservoirs from continuing to fall.

A race to ‘dead pool’

Supporters of the deal, including Gov. Doug Ducey and the state’s top water managers, say failing to act in time would put Lake Mead on course to decline more rapidly and would signal an inability to come up with water solutions within the state.

“If nothing is signed by Jan. 31, then we are basically jumping over a cliff and we don’t know what’s at the bottom or how deep it is,” said Sarah Porter, director of the Kyl Center for Water Policy at Arizona State University. She said the drought plan would give Arizona and other states a degree of control over their water future.

If the Bureau of Reclamation steps in and imposes its own plan, it’s unclear what the results might be. The lack of an agreement would bring great uncertainty, Porter said, and could spur more water agencies to rush to draw out water they’ve stored in Lake Mead, accelerating its decline.

The reservoir near Las Vegas is now 40 percent full. A first-ever shortage could be declared in 2020 if federal officials determine this August that the lake is projected to be below elevation 1,075 feet at the start of the year. Under the current rules, the water cutbacks would begin in January.

If Arizona signs the Drought Contingency Plan, it wouldn’t prevent the shortage. But the additional cutbacks would help prevent Lake Mead from falling even further.

Years of drought, rising temperatures and chronic overuse have pushed the reservoir’s levels lower and lower, raising a possibility of eventually hitting a worst-case scenario of “dead pool” — at which point water would no longer flow at Hoover Dam.

“Without the agreement in place, the risk is that we have a race to ‘dead pool,’” Porter said. “It doesn’t seem like it would be in the best interests of any party at this point not to have DCP pass.”

Yet even as leading proponents of the deal have voiced optimism, they’ve acknowledged they still aren’t positive the state’s plan for divvying up the water cutbacks will make it through the Legislature unscathed.

And while the days pass, federal water officials and lawyers are watching and waiting.

The Legislature: ‘It takes time’

Lawmakers received a first draft of the proposed legislation from Ducey’s office on Jan. 16.

On Thursday, the Central Arizona Project board voted to support the package of legislation and a proposed resolution that would grant Department of Water Resources Director Tom Buschatzke the authority to sign the Drought Contingency Plan on Arizona’s behalf.

The legislation is based on a plan that emerged from a series of meetings and negotiations over the past seven months.

The plan focuses on spreading the water cutbacks among entities and lessening the economic blow for those with the lowest priority, providing “mitigation” water to farmers in central Arizona while paying compensation to other entities that would contribute. The proposed legislation includes several tweaks to state law to make the plan work.

The Legislature is expected to take up the measures next week, possibly Tuesday, just two days before the federal government’s deadline. Bowers, R-Mesa, said he expects that the bills will be heard in the House Natural Resources, Energy and Water Committee on Tuesday, and that the House might suspend some procedural rules to expedite the measures.

Asked about the federal government’s deadline, Bowers said: “That’s not my major concern.”

“The most important thing to me is to get the deal done right,” Bowers said in an interview with The Arizona Republic.

If the Legislature takes a few extra days to pass the legislation, that would be at odds with Ducey’s emphatic calls for meeting the Jan. 31 deadline. But Bowers said “it takes time” for so many lawmakers to vet the issue.

“We’re just cranking along,” Bowers said. “Everybody wants to get this thing done.”

If lawmakers get behind the plan, it could sail through quickly. But it’s also possible that some groups and their allies in the Legislature could try to tack on unrelated water legislation, which might elicit opposition and derail the agreement.

“We need the stakeholders and we need Arizona legislators to help shepherd this DCP through,” said Kim Mitchell, senior water policy adviser with the group Western Resource Advocates. “We hope to see some momentum on DCP passage and show that we can get this done.”

She and her group are urging the Legislature to approve the resolution as well as the companion legislation supporting Arizona’s implementation plan. Mitchell said going ahead with Arizona’s plan not only helps protect the levels of Lake Mead but also “provides sound water policy to get us through these next few years, to get us through these impending water shortages.”

“There are a lot of different players that are really an integral part of this plan. It’s really a carefully crafted framework,” Mitchell said. “And I think it’s a good balance of give-and-take that shares the pain and the benefits.”

The tribes: Bringing water to the deal

Arizona’s plan involves more than $100 million in funding pledges from Ducey’s administration and the Central Arizona Water Conservation District, which manages the CAP Canal. Much of the money would go toward paying for water from the Gila River Indian Community and the Colorado River Indian Tribes.

Without the tribes’ participation, the deal wouldn’t work.

But the Gila River Indian Community has warned that if certain proposals are pushed into the package at the last minute, that could kill the deal. For one thing, the Community’s representatives said earlier this month that they wouldn’t accept an “offset” proposal that would have given the CAP board discretion to potentially draw stored water out of Lake Mead.

Another squabble erupted several days ago over a separate water bill sponsored by Bowers.

Gov. Stephen Roe Lewis of the Gila River Indian Community strongly opposed the legislation, House Bill 2476, in a letter to the state’s top water managers and said it would “interfere with litigation in which the Community has prevailed.”

He was referring to a 2017 ruling by the federal Ninth Circuit Court of Appeals, which found that a group of farmers in Safford gave up rights to Gila River water under the state’s water rights forfeiture law because they hadn’t diverted the water for more than five years.

Lewis said if the bill goes forward and changes parts of the water rights forfeiture law — often described as “use it or lose it” — then the Community “will be put in the unfortunate position of having to choose between preserving our water settlement and moving forward with DCP.”

Lewis said the Gila River Indian Community wants to see DCP pass but would actually be “better off financially” without it.

“I am sorry that we are being put in this position,” Lewis wrote in a letter, “but this bill, introduced without warning and without discussion with the Community, represents a clear threat to our water settlement rights.”

Bowers said the bill was one of two mistakenly introduced last week. He said a legislative staffer filed the bills without realizing he wanted to wait until after the drought plan is approved. Bowers said he plans to hold the bills until after a drought plan is finished.

“I’m not tying these together,” Bowers said. “They are not related in any way.”

Porter said she’s concerned that some other last-minute demands might still “throw a wrench into the works” and disrupt the process of getting the plan passed.

If lawmakers manage to sidestep obstacles and stick with the negotiated plan, the tribes have pledged to contribute water to make the deal work.

The Colorado River Indian Tribes divert water to a swath of farmlands along the river, growing crops including alfalfa, wheat and cotton. The Tribes have agreed to take 10,000 acres of farmland out of production for three years, leaving the fields dry and freeing up the water so that it can be kept in Lake Mead.

In return, the tribes would receive $38 million, including $30 million from the state and $8 million contributed by non-profit groups.

Chairman Dennis Patch said he thinks Arizona’s plan will benefit tribes and the state as a whole — in part because it would keep more water in the river and prevent it from drying up like other rivers in Arizona. He pointed to the history of the Gila River and the Santa Cruz River, which have been heavily drained over the past century by diversions and groundwater pumping. And he said if everyone insists on sticking to water rights they hold on paper, it could put the river’s reservoirs on course for a crash.

“We’re afraid like everybody else is afraid. You could dry that river up with ‘paper water,’” Patch told The Republic. “And so we want to show everybody what real water needs to be contributed to this effort to keep the lake above that level and to help Arizona.”

Patch stressed that for all the parties that have been involved in the negotiations, it’s in everyone’s best interest for Arizona to sign the Drought Contingency Plan.

“That’s what we’re trying to tell people, is that the river is in danger, with all seven states that are drinking from it. And people have to wake up,” Patch said. “There’s only one river that runs that way anymore, and it serves seven states. And so everybody has to be careful.”

The farmers: Seeking certainty

Not everyone in the agriculture business in Arizona faces imminent water cutbacks. But farmers in Pinal County have the lowest priority and are in line for the biggest reductions in water deliveries.

Arizona’s plan would lessen the economic blow for the farmers by providing them with a limited amount of “mitigation” water for the next three years.

Agricultural irrigation districts in the county are seeking state and federal funding to pay for new wells and other infrastructure that would enable them to pump more groundwater.

The CAP board has authorized $5 million, and Ducey has proposed an additional $5 million to help. But the Pinal farmers say they’re hoping for more state money to help with an application for a federal grant and get closer to the estimated $50 million it will take to drill wells, buy pumps and build other infrastructure to carry groundwater to their fields.

To help them during the transition, the farmers have asked for “backstop” measures to ensure they’ll get a steady amount of Colorado River water for three years — even in the event of a more serious “tier 2” shortage. A deal with Tucson would make that possible but as a condition the city has requested other tweaks in the state’s groundwater law, which have been included in the package of legislation.

Farmers in Pinal County produce crops including alfalfa, wheat, cotton and cantaloupes.

Until recently, the growers had expected to receive Colorado River water until 2030 under the terms of a 2004 water settlement. They faced a decreasing schedule of water deliveries between now and 2030. Under the drought plan, those cutbacks will come much more quickly.

Paul Orme, a lawyer representing Pinal irrigation districts, said the farmers expect they’ll need to leave about 40 percent of their fields dry and fallow. Still, he said they support the vast majority of the provisions in proposed legislation. He said the package now seems “pretty darn close to the finish line.”

“We still have concerns on the piece related to the groundwater infrastructure and what happens if the federal component of the funding for that infrastructure doesn’t come through,” Orme said at the CAP board meeting on Thursday. “So we’re still looking at ways to backstop that.”

In pressing for funding, the farmers have cited a University of Arizona economic study, which found that Pinal County ranks in the top 3 percent of all U.S. counties for total crop sales. The researchers said that in 2016 farms and related businesses contributed nearly $2.3 billion in total sales to the county’s economy.

The cities: Protecting the economy

Arizona’s cities have lined up to call for swift passage of the drought plan, saying it’s critical for the economy.

The Arizona Municipal Water Users Association, which represents cities that supply water to more than half the state’s population, argues that the concerns of Pinal County growers have been addressed, and it’s time to finish the deal.

“We feel the focus needs to shift to protecting Arizona’s economy and pass DCP rather than suggest more concessions are needed,” Warren Tenney, AMWUA’s executive director, said in an email. “It is the absence of DCP that truly threatens Arizona’s economy and development.”

The organization has pointed out that with or without the plan, Pinal farmers are still in line for water cutbacks. The association has also stressed that the state, including the Pinal farmers, would be better off with the plan in place.

Brett Fleck, the association’s senior water policy analyst, examined the economic data and said all agriculture-related businesses in Pinal County represented about 0.2 percent of Arizona’s economy in 2016.

“Arizona’s golf industry contributes roughly twice as much to the state’s economy,” Fleck wrote in the analysis. He said the economic data “make it clear that the potential risk to Arizona’s economy due to agricultural water cutbacks from CAP is significantly smaller than purported.”

The association has also disagreed with concerns voiced by the Home Builders Association of Central Arizona.

Representatives of developers have called for a provision conditionally granting them a certain amount of water as a “backstop” for the first three years of a shortage. Officials in Phoenix and other cities have argued that’s unnecessary because the Gila River Indian Community has already agreed to a deal that would provide water for future development if the drought plan is signed.

Cynthia Campbell, a water adviser for Phoenix, said she thinks the deal has “gelled” and is close to being done.

“We’re just trying to keep the forward momentum,” Campbell said. “It’s kind of a day-by-day thing. Every day brings a new twist.”

Ducey and Arizona water managers

The governor and the state’s top water managers are campaigning to get the deal passed swiftly.

Ducey posted an image of Lake Mead and its growing “bathtub ring” on his Facebook page and Twitter profile, with a recent comment by former Gov. Bruce Babbitt: “This is the moment.”

During a budget briefing this week, Matt Gress, the governor’s director of strategic planning and budgeting, presented a chart showing two likely scenarios for Lake Mead: one with the Drought Contingency Plan or one without.

In either case, the reservoir fell into a shortage. But the chart showed a growing space between the two lines. Without the plan, Gress noted, the reservoir is projected to fall into a high-risk zone in the coming years, approaching a point at which “you won’t have enough water to get through Hoover Dam.”

“We need a glide path,” Gress said. “We need to take another bold step. We have until Jan. 31.”

The CAP board has similarly stressed the urgency of finishing the agreement. As the board voted to support the draft legislation this week, the final page of the agenda was emblazoned with an illustration of Hoover Dam and the declining reservoir behind it, with the words: “YOUR WATER. YOUR FUTURE. PROTECT LAKE MEAD”

Still, there wasn’t unanimous support for everything in the legislation among the 15-members of the Central Arizona Water Conservation District Board.

Jennifer Martin, a board member who is also a Sierra Club water expert, cast the lone “no” vote. She said the plan “represents significant state subsidization of increased groundwater pumping, and I see that as a step backwards.”

Board member Jim Holway said he couldn’t support a provision that would give Tucson considerably more long-term storage credit when treated sewage effluent is used to replenish the groundwater. He said increasing the credits for effluent would be “taking us further from safe yield” for those aquifers. He abstained, while saying he supports the drought plan overall.

Many board members praised the plan that’s been negotiated and said they’re optimistic.

“At last, it seems we are in the final lap of what has been a three-year race toward an Arizona Lower Basin Drought Contingency Plan,” said Lisa Atkins, the board’s president. “Our task, of course, is not finished. As in any race, it is the final stretch that makes the difference between success and failure.”

Aside from the legislation, there are 15 related agreements between parties in Arizona that spell out details of the plan and that have yet to be signed.

CAP General Manager Ted Cooke said he hopes the Legislature passes the resolution and the accompanying legislation in time to meet the deadline. He said it’s doubtful that the 15 other agreements will be signed by Jan. 31.

“The deadline is the commissioner’s deadline,” Cooke said. “It will be up to her to determine whether or not what we complete by the 31st is sufficient in her mind to have achieved ‘done,’ even if all these other individual elements are not achieved.”

Signing the three-state plan may also take more time, he said. That’s because the proposed resolution grants Buschatzke authority to sign on Arizona’s behalf provided two other steps occur: Congress must authorize the federal Interior secretary to enter into the agreement, and all parties in other states must have authorization to sign.

“So, there will be a separation of time between the moment that the joint resolution is passed by the Legislature,” Cooke said, and the moment when “the director actually puts pen to paper.”

The feds: Delay increases risk for all

The federal Bureau of Reclamation, which manages reservoirs on the Colorado River, has said the deadline stands.

If the parties haven’t finished their work to complete the Drought Contingency Plan by Jan. 31, the Interior Department plans to publish a notice in the Federal Register.

“In that notice, we will ask all seven States’ Governor’s representatives for their specific recommendations for prompt Departmental action,” said Patti Aaron, a spokeswoman for the bureau. “We will ask for actions to reduce the risk the Basin is facing.”

Aaron said if this occurs, the states will have 30 days to submit recommendations and the Interior Department will consider the input in deciding on a course of action before August.

“To date, Interior is very supportive and extremely patient with the pace of progress of the DCP,” Aaron said in email. “The delay increases the risk for us all. We need to ensure that the risks of lake level declines to critically low elevations are addressed, with or without the DCP.”

Leslie Meyers, the bureau’s area manager, said the agency reached a funding agreement to bring back some legal staff during the partial government shutdown. She said her legal staff has been working on related agreements.

“We’re still on track,” Meyers said in an interview by phone. She praised the work of Arizona officials and said the coming week will be busy.

“There is absolutely a pathway forward. All of the water interests seem very committed to making things happen and moving forward,” Meyers said. “I’m very, very hopeful that we’re going to get to Jan. 31 and all of this is going to come together, and that’s exactly what I expect to happen.”

When Burman announced the deadline at a conference in Las Vegas last month, she pointed out that Lake Powell and Lake Mead are together at their lowest level since Glen Canyon Dam was built and Powell was filled in 1966.

“To put it in more personal terms, these are the lowest reservoir levels in my lifetime,” Burman said. “We are teetering on the brink of a shortage today, and we see real risk of rapid declines.”

Will lawmakers repeat 1980 feat?

The Colorado River has long been overallocated, with the demands of farms and cities outstripping the available water supply. The river basin has been drying out during what scientists say is one of the driest 19-year periods in the past 1,200 years.

Scientific research has found that rising temperatures due to climate change have contributed significantly to the drought. The higher temperatures have shrunk the average snowpack in the mountains in many areas, reduced the flow of streams and increased the amount of water evaporating off the landscape.

The three-state drought plan has been under discussion for the past several years. It would represent a temporary fix on top of the existing rules for managing shortages, and it would be in force until 2026.

Many water experts describe the drought plan as a first step in a larger process of retooling of how the river is managed.

Porter, of ASU, said the only thing the Legislature really needs to do is authorize the signing of the plan.

Arizona is the only state that by law needs the Legislature’s approval to participate.

Porter said she thinks it’s possible for the Legislature to act quickly. It did back in 1980, when lawmakers were called into a special session and just seven hours later passed Arizona’s landmark groundwater management law.

The only thing the Legislature needs to act just as quickly this time, she said, is the will to get it done.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s