The following is the opinion and analysis of the writer:
Tucson Water has stored Colorado River water in these basins in the Avra Valley north of the city since the early 2000s. Now, Tucson and Phoenix are starting the Secure Water Arizona Program. Under it, cities with more water than they need today could provide it over a short- or long-term period to cities that need it.
The federal government issued its primary strategies for the Upper and Lower Colorado basins. The Bureau of Land Management (BLM), under the direction of the Interior Department and Doug Burgum, has put the basin states on a direct path toward interstate litigation, with potential court rulings expected in the near future. Procedural hurdles, including determining which state’s law applies, establishing jurisdiction, and navigating out-of-state discovery, may influence the timeline and outcome of these disputes.
Additionally, California and Arizona are under District Court Ten, while the other states are under District Court Nine. The Lower Basin comprises California, Arizona, and Nevada. The Upper Basin comprises Colorado, New Mexico, Utah and Wyoming. Due to the continued drought, population growth and agricultural needs, the new strategies put both basins on a path to arguing before the Supreme Court, hopefully this October 2026. The approaching federal deadline of Oct. 1, 2026, underscores the urgency for stakeholders to prepare for potential legal and policy shifts that could significantly alter water allocations and management practices.
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The United States Supreme Court never goes into “secession,” but it takes breaks called recesses. The term of the United States Supreme Court begins by statute on the first Monday in October. The court will operate until late June or early July. The justices alternate between two modes: sittings, two-week blocks where they hear oral arguments and issue opinions; and recesses, intervening two-week blocks where they are out of session, meaning they are not hearing arguments but are instead privately reviewing petitions, deliberating on cases and writing opinions. In this case, in the Upper and Lower basins, summer will be complete, and half of fall will be in the books. The damage to water quality may be a moot point if there is an extremely hot, dry summer, underscoring the importance of timely legal decisions.
Tucson Water has stored Colorado River water in these basins in the Avra Valley north of the city since the early 2000s. Now, Tucson and Phoenix are starting the Secure Water Arizona Program. Under it, cities with more water than they need today could provide it over a short- or long-term period to cities that need it.
The proposal advanced by the Lower Basin concerns the water deficit. The Lower Basin argues that reducing Lake Powell releases directly violates the 1922 Compact. The Lower Basin leadership has begun mobilizing legal teams for the potential showdown in the Supreme Court. The Upper Basin has formally pushed back, arguing that state negotiators have said the federal government lacks statutory authority to override the compact or dictate state water cuts. This author would not be surprised if states in the Upper Basin refuse to act on the revisions until the courts make a final decision. The federal public comment window on the DEIS closed on March 2, 2026. The Department of the Interior has fast-tracked the environmental review timeline and plans to establish a Preferred Alternative officially. The ultimate federal deadline to finalize and execute the post-2026 framework is Oct. 1, 2026. The better timeline would be to argue the case this spring 2026, but for some reason, the BLM lacks the foresight or the understanding of the consequences of a hot and dry summer in both basins.
Though the Colorado Compact Clause is not part of the Commerce Clause, this complicates the legal considerations. Both deal with how states interact. The Compact Clause (Article 1, Section 10, Clause 3) is a distinct section of the United States Constitution. Commerce Clause (Article 1, Section 8, Clause 3).
Lower Basin Proposal
• Trigger mechanism: Bases water delivery cuts on the total system storage across the entire Colorado River Basin (including Lake Mead, Lake Powell, and initial unit storage) rather than just Lake Mead alone.
• Reduction strategy: Commits the Lower Basin (CA, AZ, NV) to 1.5 million acre-feet (MAF) of reductions annually in average and dry conditions. Under the driest conditions, the Lower Basin proposes that both Upper and Lower basins share conservation responsibilities.
• Near-term bridge: Includes a voluntary, near-term plan offering up to 3.2 MAF of water-use cuts through 2028, contingent on federal compensation.
Upper Basin Proposal
• Trigger mechanism: Ties mandated water-use reductions strictly to the combined storage levels of Lake Mead and Lake Powell, arguing that the Upper Basin should not face mandatory cuts unless reservoir levels fall significantly.
• Reduction strategy: Argues that all mandated reductions should fall on the Lower Basin. The Upper Basin (CO, UT, WY, NM) contends that natural, snowpack-driven shortages inherently limit their use, as they have historically used far less than their full compact-allocated amounts.
• Shared conservation: The Upper Basin supports voluntary conservation measures but refuses to commit to mandatory, fixed reductions that penalize it for Lower Basin overusage.
As one can see, the Upper and Lower basins lack clarity regarding water allocation and conservation measures. The issue is clear: there needs to be water restrictions in both the Lower and Upper basins, and a plan for other water sources, especially in the Lower Basin. Desalination plants may be a step forward, but the concern with the current administration is that its focus is on oil, gas, and coal, and not on alternatives that suit the needs and wants of not only the major populations of cities such as Los Angeles and Phoenix, but also Upper Basin cities such as Denver, which have seen extreme growth in population and water resources.
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Boyd T. Miller, PhD, with a background in environmental, forestry, and historical issues, offers a broad perspective. Miller is the CEO/Director of North American Safe and Clean Water, a non-profit organization.
