Feds may cut supply across seven states to keep Colorado River afloat

The U.S. Department of Interior announced Tuesday that it could ― and possibly would ― impose cuts to Colorado River deliveries starting next year if necessary, ignoring historic water rights held by the powerful Imperial Irrigation District and other rural farming districts. If earlier rounds of cuts are not sufficient, then like a parent doling out equal punishment to children no matter what their age, a single percentage rate of cuts would be applied across California, Arizona and Nevada, to keep the fast-dwindling river and its huge dams and reservoirs functioning. Water also would be held back at both Glen Canyon and Hoover Dams if necessary, potentially impacting four more states.

“The Colorado River Basin provides water for more than 40 million Americans. It fuels hydropower resources in eight states, supports agriculture and agricultural communities across the West, and is a crucial resource for 30 Tribal Nations,” Deputy Secretary Tommy Beaudreau said. "Failure is not an option."

He and other federal and state officials stressed that voluntary reductions would be preferable, and said the announced plan was designed to "drive forward" discussions about consensus measures instead if possible.

But if those don't materialize, federal officials outlined how they propose to act to keep the river system afloat. The plan would first apply cuts on a "priority rights" basis, meaning so-called junior rights holders like the Metropolitan Water District of Southern California, which alone provides drinking water for 19 million people, could face reductions in supply first. But if unprecedented drought conditions return and the reservoirs reach extreme low levels that could trigger "dead pool," when water cannot flow through pipes and canals, or sink so low that massive hydroelectric pumps might not function, then federal officials said they would apply across-the-board cuts.

IID attorneys and others have argued that the U.S. Supreme Court has upheld their "senior" water rights, and that any attempt to lessen those rights could result in years of litigation. IID receives the largest single share of Colorado River water, beating out Los Angeles, Phoenix, and other major cities. But the document released on Tuesday doesn't permanently alter water rights, instead saying it might conserve "incremental" amounts of water across the board through 2026, when 2007 guidelines governing the river system expire.

At a press conference at the Hoover Dam on Tuesday, Beaudreau said Interior Secretary Deb Haaland has clear legal authority under existing law to take actions to protect public health and safety, and to ensure drinking water and other beneficial uses can be provided.

Water experts had conflicting responses.

"I think the legality is thin, but they need to be out on the edge," said retired longtime MWD general manager Jeffrey Kightlinger, who successfully maneuvered around IID in a 2019 multi-state drought contingency plan for the river. "And losing a suit or battle can lead to winning the war, so it's not necessarily bad."

But University of Arizona law professor, lawyer and water policy expert Robert Glennon said, "I don't think there's much doubt that they have the legal authority."

He noted that under President George W. Bush, Interior Secretary Gale Norton had "with the stroke of a pen" threatened to cap IID's water allocations, forcing them in 2003 to sign a settlement agreement that transferred a large portion of their water to suburban San Diego.

He added that the unprecedented low river flows of recent years were "a historic crisis. Interior could not ignore this. If Interior were to let this go to where the two reservoirs go to dead pool, there goes 95% of the winter salad for the entire country; there goes municipal water for Phoenix and Tucson, and Los Angeles and Las Vegas. It just can't happen. Especially because all we really need to have happen is a slight reduction in the percentage of water consumed by farmers. And that solves the problem."

Under the draft plan announced on Tuesday, urban and rural users alike could share the burden if pre-determined levels sank too low.

Formally known as a draft "supplemental environmental impact statement," the plan would augment an existing agreement that runs through 2026, when "interim" guidelines between seven states, the federal government and Mexico expire, and a new long-term plan must be in place.

Heavy snowpack and rainfall across the river basin offered breathing room for 2023, and appears to have halved the amount of cuts that could be necessary. Although Bureau of Reclamation Commissioner Camille Calimlim Touton told Congress last June that up to 4 million acre-feet of reductions might be necessary due to an unprecedented 23-year drought, Tuesday's announcement and draft plan outline slightly more than 2 million acre-feet of possible reductions. An acre-foot of water is enough to supply two California households for a year. That lower amount may be tied to legal considerations as well as a healthy winter's precipitation, as the announcement says federal officials can order savings of just over 2 million-acre feet per a 2007 agreement.

'A true seven state consensus'

IID is by far the largest recipient of Colorado River water, getting as much as 25% of annual allocations. General manager Enrique Martinez said in a statement, "“IID remains committed to being part of a seven-state consensus that protects the Colorado River system."

But he cautioned, "Alternatives that skirt around long-standing water rights, as well as the agreements and laws put in place to address this situation, have the potential to jeopardize existing long-standing California water agency partnerships, and billions of dollars of long-term planning investments that have provided water supply resilience within the state for more than two decades."

Colorado River Board of California Chairman JB Hamby, who also sits on IID's board of directors, issued a statement too, urging federal officials if possible to instead rely on voluntary contributions to hold back necessary amounts of water.

California and six other states submitted competing plans with different strategies to Interior officials and its Bureau of Reclamation at the end of January, and a public war of words ensued. Since then, California, Arizona and Nevada in particular have been talking behind closed doors, and all seven states have been meeting occasionally with federal officials, aiming to hammer out differences and finalize a workable voluntary plan.

Responding to a question about possible litigation at the press conference, Hamby, who also serves as California’s Colorado River Commissioner, said fruitful meetings combined with major federal funding for conservation projects made him and others hopeful there would be "a true seven state consensus."

In a statement, he added, “California looks forward to closely coordinating and collaborating with our partners in the other Basin States, Basin Tribes and Reclamation to review the draft SEIS in full.”

The public has 45 days to comment on the draft plan once it is published, likely on Friday, and is expected to be finalized by August, in time for 2024.

Arizona officials, who hold lower rights to the water, said in a statement, "We are encouraged that Reclamation is acting to address the 23-year drought on the Colorado River Basin. One good water year is not enough to protect the system. More action is necessary."

The site of Tuesday's announcement is a historic one: the 1922 Colorado River basin agreement was signed there, dividing it into the upper and lower basins and allocating water among seven states. But overallocation combined with ever-worsening climate change that is leading to historic drought and reduced flows mean not just short-term but long-range cuts will be necessary. While they're ready to act, lower basin officials made clear they're not ceding historic water rights in exchange for short-term funding or other measures.

In an April 6 joint letter to the Bureau of Reclamation, Hamby, Buschatzke, and top Nevada representative John Entsiminger said any conservation measures that received federal funds should be for a set period of time, and “contractors or entitlement holders should not be asked to permanently assign away Colorado river water in return for this funding.”

More lawns need to go, more efficient farming and habitat also needed

They listed various categories of voluntary measures that could yield water savings, including municipal turf removal, agricultural efficiency ― typically drip irrigation or pump back equipment and related infrastructure, modernization of canals, and activities to expand habitat restoration for wildlife along the lower Colorado River.

In announcing the draft environmental document at Hoover Dam, Beaudreau and Touton stressed collaborative approaches, and said the plan was designed to continue to drive those approaches forward first. At a press conference, Beaudreau dismissed the public saber rattling, saying "Some of the commentary has depicted an 'us versus them' dynamic in the basin. I don't see that at all. I see commitment, collaboration and problem solving. These are difficult issues decades in the making. And so yes, some of the conversations can be difficult."

But he added, "The reason I'm hopeful that new agreements and solutions will continue to emerge ... is that the spirit in the basin is one of community and collaboration. All seven basin states and the communities they represent are unified in finding common solutions in the best interests of the 40 million people who depend on this precious resource, the Colorado River."

Billions in federal funds could ease the blow, increase conservation

The draft plan was combined with a reminder that a whopping $12.9 billion in potential federal aid is available for projects that could conserve water directly or indirectly, which the Biden Administration says combined, "represent the largest investments in climate resilience in the nation’s history."

The Bipartisan Infrastructure Law provides $8.3 billion for Reclamation water infrastructure projects over five years to "advance drought resilience and expand access to clean water for families, farmers and wildlife. The investment will repair aging water delivery systems, protect dams, complete rural water projects, and protect aquatic ecosystems. The Inflation Reduction Act contains another $4.6 billion to address the historic drought, though few if any farmers have responded to an offer by the feds as part of those funds last October to pay up to $400 per acre-foot of water conserved for three years by not planting crops.

Instead, IID and other major water contractors have applied for funds for long-term conservation projects, but IID has yet to hear if its proposals will be approved. Officials there said they had a productive meeting with Reclamation staff last week. IID and CVWD did sign a $250 million agreement with federal and state water officials in November, under which they will receive the IRA funds to help tamp down dust and restore wildlife habitat at Salton Sea, another fast-disappearing water body, if California conserves another 400,000 acre-feet of Colorado River water. CVWD and federal officials also signed an agreement last fall to conserve up to 35,000 acre-feet of water for payments of $400 per acre-foot.

While federal and state officials alike are hopeful a voluntary agreement can be reached, Beaudreau made clear that if necessary, the legal hammer would come down, with across the board cuts applied.

"We need to have those tools in place so that Reclamation can use them if necessary," he said. "It is our hope and our fervent desire that the tools laid out in the supplemental EIS never have to be used. ... At the end of the day, though, the Secretary's responsibility is to keep the system operating."

Janet Wilson is senior environment reporter for The Desert Sun, and a Stanford Bill Lane Center Western Media Fellow. She can be reached at jwilson@gannett.com or on Twitter @janetwilson6

This article originally appeared on Palm Springs Desert Sun: Feds may cut supply across seven states to keep Colorado River afloat