Arizona joins Nevada's lawsuit vs. US over Colorado River cuts

The state filed a motion Friday in U.S. District Court to intervene in Nevada's lawsuit, contending that the recent federal decision to cut river water supplies to Arizona, Nevada and California by up to 3 million acre-feet a year violates longtime laws governing the river and would "devastate" Arizona's economy, Arizona Department of Water Resources Director Tom Buschatzke said at a press conference Friday.

The ongoing suit challenges the U.S. Bureau of Reclamation's decision in August to cut that much from its river water deliveries to the three Lower Colorado River Basin states if river conditions get bad enough. The possibility of such a cut is contained in the bureau's 10-year framework for operating the river starting this month. 

Arizona contends the bureau's decision violates the Colorado River Compact because it would allow for water releases from Lake Powell to Lake Mead far lower than the minimum requirements spelled out by that landmark 2022 agreement signed by all seven river basin states.

Secondly, Arizona argues that the 3 million acre-foot cuts would not only dry up the CAP that serves drinking water to the Tucson and Phoenix areas, but it could also cut off river water supplies to on-river communities, including the economically important farms in the Yuma area.

The U.S. Bureau of Reclamation didn't respond to a request from the Star to comment on Arizona's decision to join Nevada's lawsuit. Typically, government agencies that are sued rarely comment on pending litigation.

Chuck Cullom, director of the Upper Colorado River Commission, which represents the river's four Upper Basin states, said in response to a question from the Star, "We have not had time to review the complaint so have no comment at this time."

The Upper Basin states are Colorado, New Mexico, Utah and Wyoming.  

‘Drawing a line in the sand’

Arizona Gov. Katie Hobbs issued a statement Friday supporting Arizona's intervention in Nevada's lawsuit.

"Arizona has always been willing to do our part to protect the Colorado River, but we will not accept a forced federal plan that solves this crisis on the backs of our families, farms and businesses," Hobbs said. "We are drawing a line in the sand."

In all, Arizona has set aside $9 million for a fund to pay for litigation on the Colorado River.

Arizona's intervention in Nevada's suit escalates the ongoing conflict between the Lower Basin states and the federal government over how the river should be managed at a time when flows have declined steadily over the past quarter-century. The suit follows three years of failed negotiations between representatives of the two basins' states over how to manage the shortfall — a stalemate that forced Reclamation to impose its own solution.

The flows are now running at barely two-thirds of the river's 20th-century average flows of about 15 million acre-feet a year.

The river's two big reservoirs, Lakes Mead and Powell, are now at their lowest water levels since they were first filling in the 1930s and 1960s, respectively. 

Many officials are hoping that the ongoing El Niño weather pattern, triggered by record warm Pacific Ocean temperatures, will bring lots of rain and snow this winter to give the river and its reservoirs some relief. But most experts say they believe that would offer only a short-term reprieve to the river's ongoing crisis. 

The continued declines in the river's water supply led to Reclamation's decision to approve a 10-year operating plan for the river that could shave the Lower Basin's supply by 3 million acre-feet.

Separate Lower Basin plan not challenged

Arizona's motion to join the lawsuit does not, however, target a part of the bureau's decision that approved a separate plan to cut river water allocations to the Lower Basin states by a little more than one-third over the next two years.

The Lower Basin agreement, proposed by the three states themselves, calls on California, Arizona and Nevada to reduce their rights to river water by 1.25 million acre-feet a year in 2027 and 2028. On top of that, the three states have said they'll try to find another 700,000 acre-feet in water use savings over those two years. 

At his press conference, Buschatzke said Arizona seeks to "protect the integrity of the Lower Basin agreement" throughout this litigation.

"By joining the litigation, we can protect Arizona's interests before a judge or in any settlement agreement," the director said. "Our priority remains the completion of the Lower Basin agreement.

"Throughout the litigation we will be sure sure to seek to make sure the Lower Basin agreement is finalized and implemented," he said.

Nevada's lawsuit and Arizona's motion to intervene in it say Reclamation's August decision is unfair to the two states because they require those states and California to shoulder the entire burden of bringing the river's demand in balance with its dwindling supply. They both also argue the bureau's plan will severely damage the economies of Central and Southern Arizona and the Las Vegas area and that the bureau's environmental analysis of its proposal failed to even look at those impacts.

Bureau officials and some outside experts, however, have argued that Reclamation's ability to force cuts in Upper Basin river water use is much more limited than for Lower Basin cuts. That's because in the Lower Basin, the big river water users such as the CAP and Southern California's Metropolitan Water District have contracts with the bureau to take and pay for their river water from Lake Mead and other reservoirs.

In the Upper Basin, however, most of the river water users, including many of the farms taking water, don't have such contracts but simply pull water directly off the river and its tributaries.

Other observers, however, including former U.S. Interior Secretary Bruce Babbitt, a former Arizona governor,  say the feds can exercise their authority to make Upper Basin cuts through their control of the major reservoirs they run upstream of Lake Powell, including the Flaming Gorge reservoir at the Utah-Wyoming border.

Asked at Friday's press conference about the bureau's legal authority to force Upper Basin cuts, Buschatzke declined to respond directly. But he made it clear he believes the federal government has a legal obligation to deliver enough water to the Lower Basin states to meet the Colorado River compact's terms.

"There are various statutes that expressly direct the federal government to do so," he said.

But while this lawsuit does accuse Reclamation of failing to meet the terms of the 1922 river compact, Buschatzke said it is not a lawsuit specifically targeting compact compliance that delves into all the issues revolving around compliance. 

Such a lawsuit would be much more complex, requiring more detailed arguments and stretching out longer than the current suit is likely to last. Many experts have said a lawsuit honing in strictly on compact compliance could last a decade or longer.

"What we're trying to do right now is to have ability to participate in this (Nevada) lawsuit, move forward and finalize the Lower Basin agreement," Buschatzke said. "We reserve our right to file a compact complaint at the appropriate time. It’s not off the table."

Two water law experts — one from each basin — told the Star they believe Arizona and Nevada have at least a potentially strong case against the federal government, although the outcome of litigation is never guaranteed.

"I think the complaint is powerful," said Sarah Porter, director of Arizona State University's Kyl Center for Water Policy, based on Arizona's twin arguments about a lack of compliance with the 1922 river compact and that the bureau failed to follow federal rules in the National Environmental Policy Act and the Administrative Procedure Act.

Porter, who has a law degree although she isn't currently representing clients, ticked off a long list of ways in which the bureau could be vulnerable to charges of failing to meet the 1922 compact.

For instance, two articles of the compact require delivery of river water from the Upper Basin to the Lower Basin and to Mexico, she said. Also, the 1956 law that authorized construction of Glen Canyon Dam and the creation of Lake Powell requires that the states and feds meet the compact, she said. Also, federal operating guidelines for managing the reservoirs specifically require compact compliance, she said.

The second legal expert, University of Colorado Law Professor Mark Squillace, said, "I am not sure how a court will approach the Colorado River Compact issue since the compact assumed that a lot more water would be available than we have seen in this century."

But the problem with the bureau's decision is that it places the entire burden for addressing the shortages on the Lower Basin, Squillace said.

"The Upper Basin is subject only to voluntary reductions. The compact obviously did not anticipate these serious shortages, but placing the whole burden for addressing these shortages on the Lower Basin seems unfair and could be grounds for finding the bureau's action 'arbitrary and capricious'," he said.

That is the legal standard under the federal Administrative Procedure Act for determining whether a decision should be reviewed, he said.

A third water law expert, Doug Kenney of the University of Colorado, said of this lawsuit, "Many different opinions exist about the strength of Arizona’s argument. I don't have that answer on which is best.

"The more significant observation is that this looks like any hope of 'containing' this litigation is now probably gone. For better or worse, I think we just entered a new phase. Buckle up," said Kenney, director of the University of Colorado Law School's Western Water Policy Program.