Colorado River states suggest mediation as water supplies near crisis

The Trump administration’s Bureau of Reclamation has said that, lacking a seven-state agreement to guide operations and cutbacks to arrest the loss of reservoir storage, it intends to create a 10-year “framework” with new rules to be imposed every two years. The lead negotiators for Colorado and Nevada appeared on stage at a June 5 conference and both said such a plan lacks the certainty that their water users need when deciding on investments.

Federal and state authorities said there is hope for new supplies in the future, such as a memorandum that Arizona and Nevada officials signed in San Diego just before the conference that could lead to sharing of that city’s ocean seawater desalination capacity. To forestall disaster until then, though, they must agree on a path that keeps the river from crashing.

The states already have negotiated fruitlessly for at least three years, and the existing shortage-sharing rules that have failed to stop the slide are expiring this fall. Now Glen Canyon Dam is on the precipice of lacking the water to generate power, the first of what could become a cascade of economic and environmental calamities without fast action.

“The constant renegotiation every two years is difficult to fathom,” Colorado’s state river commissioner, Becky Mitchell, said during a discussion with her Nevada counterpart at a University of Colorado Law School conference focused on the impasse.

Could the Colorado River states bring in a mediator?

All of the states have discussed the potential for using both federal and state funds to incentivize reduced use on farms and elsewhere, she said. “And I've wondered, how do we fund and finance if we're constantly renegotiating? And so how do we create the certainty that the (river basin’s) 40 million people deserve?”

Southern Nevada Water Authority General Manager John Entsminger agreed. Nevada, Arizona and California — the states collectively known as the Lower Basin and collectively at impasse with the Upper Basin states — have proposed taking enough cuts themselves over the next two years to buy time for a longer-term deal.

They want that deal to include mandatory new cuts from Colorado and its neighbors in Wyoming, Utah and New Mexico — something those states have resisted in part because they already use far less than the 1922 compact allotted to them before a changing climate slashed the flows.

If the Bureau of Reclamation accepts the Lower Basin’s offer for cuts to cover the first two years, Entsminger said, the states could use a retired federal judge as a mediator, or perhaps a triad of mediators, to arrive at a plan for the following years. His preference would be a three-judge panel, with the Upper Basin and Lower Basin each appointing one and then allowing those two to choose the third.

“Look, I don't know if it'll help or not. I don't,” Entsminger said. “But we're high-centered.” Maybe the Lower Basin’s plan can succeed at forestalling an unpredictable court battle, he said. “But in terms of a long-term, durable, multi-decadal plan, we're not close. So if a mediator will help, let's do it.”

Arizona Water Resources Director Tom Buschatzke also supports trying a mediator, according to a department spokesman, but his top priority for this summer is getting Reclamation to accept the Lower Basin’s plan before the current guidelines expire.

Acting Reclamation Commissioner Scott Cameron said that, absent a consensus deal by the states that’s ready to go this year, a short-term framework is best. His agency will flesh out the details to release for a brief comment period this summer.

Cameron said he continues to meet frequently with the seven state negotiators, but must publish a plan this summer in time to govern river and dam withdrawals this fall. “We have reminded my seven best friends that there are deadlines we actually have to meet,” he said during a separate session of the University of Colorado conference.

Given how rapidly conditions on the river and in the reservoirs can shift, he said, it’s wise not to lock in for too long. “We think it makes sense to take a second look at decision-making every couple of years,” he said.

That is, he said, unless at some point in the coming decade the states can reach a consensus that protects the river and the government’s dam infrastructure longer-term.

“If peace breaks out and we have a seven-state agreement on something a year and a half from now or four and half years from now, we're happy to take that agreement and have it supplant this 10-year framework,” Cameron said.

Arizona tribes want certainty and a place at the table

Some Arizona tribes, like the states, are also unsatisfied with the prospect of a short-term plan — especially if their supplies remain at risk. They are among many water users in the basin who could take the government to court even if the states don’t, given that the federal government has a trust responsibility to supply water that makes their lands usable.

The Gila River Indian Community has left water in Lake Mead as part of Arizona’s ongoing efforts to prevent deeper cuts in the future. GRIC has rights to Colorado River water through a settlement meant to offset what upstream farmers drained out of the Gila River. But that water must travel to the Phoenix-area community through the Central Arizona Project Canal, whose flows are at risk if the federal government unilaterally imposes much deeper cuts out of Lake Mead during the next decade, as some fear.

“A 10-year federal framework could impose massive, massive additional cuts on the Lower Basin, on the state of Arizona, and therefore on my community beyond these first two years,” GRIC Gov. Stephen Roe Lewis said at the water law conference. “That's why we're concerned. And it could do so with no strategy, much less any agreement, to offset the resulting damage to our Indian Trust assets.”

Colorado River Indian Tribes Chairwoman Amelia Flores warned that her government, based on the banks of the river in western Arizona, would not sit by if Reclamation imposes cuts on her people’s senior water rights. As it has historically, she said, the agency continues to form its own proposals to which tribes must react, rather than treating them as the sovereign equals to states that they are.

“At CRIT we will fight for those things that are dear to us,” she said, including water for both the tribe and the river itself.

In his remarks the day before Lewis and Flores addressed the conference, Cameron said he anticipates finding federal money to buy water to fulfill its commitments to tribes.

Cameron also said he expects deals like the one envisioned between Arizona or Nevada and San Diego County could add up to significant new sources and interstate deals to relieve shortages in a decade or so. Among plans already in process, he noted the expansion of Arizona’s Bartlett Dam on the Verde River and Phoenix’s progress on a water recycling plant. These represent relatively small steps in the thousands of acre-feet toward making up for a supply-and-demand imbalance in the millions.

The memorandum signed on June 3 in San Diego commits Reclamation and several water agencies in the region to jointly evaluating how new water supplies from desalination or water recycling could be transferred across the Colorado River watershed.

Those agencies include the San Diego County Water Authority, Metropolitan Water District of Southern California, the Southern Nevada Water Authority, the Arizona Department of Water Resources, Central Arizona Water Conservation District and Salt River Project. Thousands of acre-feet could be available from San Diego’s Carlsbad plant alone, though Cameron said he hopes for more desalination plants.

“Ten years from now, instead of 10,000 or 20,000 acre-feet of water from California being provided to some combination of Arizona or Nevada,” Cameron said, “I would hope we would be routinely transferring hundreds of thousands of acre-feet a year, and I would hope that we would have a lot more desal in place in California.”

Entsminger, of Nevada, also noted the prospect of San Diego desalination as a model for interstate cooperation and water augmentation.

“There are solutions on the supply side out there, but they're incredibly expensive,” and on their own can’t close the gap between current use and a dwindling supply.