Arizona has six weeks to finalize its plan to deal with looming shortages on the Colorado River. Otherwise, the federal government will step in.
At a major water conference in Las Vegas last week, Bureau of Reclamation Commissioner Brenda Burman told the Colorado Basin states that they needed to get it together by January 31.
“We will act if needed to protect this basin,” Burman said at the annual meeting of the Colorado River Water Users Association.
With the holidays fast approaching, Arizona water authorities and users are in the throes of hashing out the details of a Drought Contingency Plan that was first floated publicly at the end of November. They say that at least some of those details cannot be completely worked out by the end of January.
The governor and legislature must sign off on the internal plan, and they also have to authorize someone to sign a multistate plan on behalf of Arizona. Many say that "someone" should be only the Director of the Department of Water Resources, but that’s been one of the sticking points.
No new meetings of the Drought Contingency Plan Steering Committee have been scheduled — yet — and the legislature does not convene until January 14. It seems unlikely that the governor will call a special session.
“We have a sense of urgency to get DCP done and believe that should happen through the regular session,” said Patrick Ptak, spokesperson for the governor’s office.
Last year, the Bureau of Reclamation pushed states to finish their plans by the end of the month and spell out how they will deal with cuts to their supply of Colorado River water. The Upper Basin states of Colorado, New Mexico, Utah, and Wyoming have already done so.
Of the Lower Basin states, only Nevada has settled on a plan. Arizona and California have not.
If they don’t finalize their plans by the end of January, the Department of Interior will ask states to recommend actions that it could take before August 2019. That is the soonest Interior would declare a shortage that would lead to cuts in states' supply of Colorado River water.
“If Arizona doesn’t act, it seems to me that the other six states, or the Lower Basin, will sit down with the Secretary and put together a secretarial order of administering cuts to Arizona,” said former Arizona Governor Bruce Babbitt, who served as Secretary of the Interior under President Bill Clinton. “That’s never a good idea.”
Here are some of the key issues that Arizona has to figure out, or else:
Number one: Who will sign for Arizona?
The board of the Central Arizona Project, which operates the 336-mile canal bringing water from Lake Mead to Maricopa, Pima and Pinal counties in central Arizona, has insisted it should be able to co-sign. It has an elected, 15-member board representing those three counties, and it has set aside $60 million to help pay for the Drought Contingency Plan.
Not so fast, says the Arizona Department of Water Resources, which represents the state and is currently the signing designee.
This turf war, which goes back decades, won’t be resolved in the next six weeks. But the CAP board, the Department of Water Resources, and the Bureau of Reclamation have been working on an agreement that will satisfy CAP’s demands.
At the last CAP board meeting, in early December, the board entered a private session with lawyers to discuss ways it can retain legal recourse to sue parties that don’t hold up their end of a drought plan, if it doesn't co-sign the agreement. The board has argued that it deserves and even needs this right in order to fulfill its obligations to taxpayers.
“There are a group of folks that are working on ideas,” said Leslie Meyers, Phoenix area manager for the Bureau of Reclamation who sits on the Drought Contingency Plan steering committee. ”Ultimately, it’s going to be CAP and DWR’s decision. This is an issue between the two of them. They need to get to a place where both of those entities are comfortable.”
Many of those involved with drought negotiations, and those observing them, have sided with the Department of Water Resources on this issue. But with the CAP board putting up $60 million, its demands are tough to ignore.
“Colorado River policy is the responsibility of the Department of Water Resources. Period,” Babbitt said. “CAP has attempted to leverage its contract responsibilities into making decisions that are properly the business of the Department of Water Resources.”
Arizona State Senator Lisa Otondo, who sits on the steering committee and who has been a vocal driver of recent progress in Arizona’s drought negotiations, said those who held priority rights to Colorado River water were “completely against” the CAP board signing.
She hoped it would be resolved in the next few weeks. “If it’s not confronted, then I’ll bring it up,” Otondo said, then chuckled wryly.
Number two: Where will the money come from to help Pinal County farmers?
If a shortage is declared on the Colorado River, Arizona will lose at least 512,000 acre-feet of the 2.8 million acre-feet of water it takes from the river each year. One of the groups that stands to lose the most water, and first, is farmers in Pinal County.
As drought negotiations lurched through the fall, the question loomed of how to compensate farmers for the water they would lose. For several different reasons, no one could agree.
But the plan that was proposed November 29 offered a solution that most Arizona water negotiators could get behind. In a best-case scenario, for the first two years of the Drought Contingency Plan, farmers would receive water that CAP had stored in Lake Mead. That water would be phased out starting in 2022, to be replaced by groundwater.
The problem for the farmers is that they don’t have the infrastructure to tap into that groundwater. They’ve got to build it, and up to $35 million in costs must come from somewhere. But the November 29 plan doesn’t have answers to important questions like where funding will come from, or where the infrastructure can and should go.
Meyers, of the Bureau of Reclamation, said funding could come from the Environmental Quality Incentives Program, which is run by the federal Natural Resources Conservation Service.
The Arizona Department of Water Resources also might reconfigure its pump tax, which it levies on farmers, and redirect the revenue toward mitigation. The Central Arizona Project was another potential source of funding, Meyers said.
“There’s a lot of programs out there,” she added. “It’s hard to just say one entity’s going to bring $30 million.”
The open-ended funding question makes Pinal County irrigation districts, or at least, their lawyer, very nervous.
“The lack of certainty on that is a real concern to us,” Paul Orme, who represents several of those districts, said.
“We know that people want at least half of it to come from the federal government, and the Bureau of Reclamation says they will work hard on trying to make that happen, but that’s not something we’ll know for a year or two,” Orme said. “So we have to make a decision on this before we know for sure, what, if any money, we’re going to get through the fed government.”
He told Phoenix New Times that farmers and irrigation districts were already putting up $12 million — $5 million from the district, and about $7 million through the repurposed pump tax, which comes from a levy of $3 per acre-foot on farmers.
Orme said he wanted to see the state and the CAP board put up seed money. They would need to start developing infrastructure next year, per the plan.
On Tuesday, those districts met with federal officials about getting funding for well infrastructure. "While nothing is certain at this point, I feel there are lots of efforts in place to get this done," he said.
Number three: The legal stuff
Water might be fluid, but in Arizona, moving it from one place to another is not simply a matter of putting it in a pipe and letting it flow. A ridiculously complex legal framework governs what water can go where and for what and to whom.
For example, Arizona takes surface water directly from the Colorado River. Much of that is used immediately, but some of it is stored below ground. Not all users are legally allowed to store water underground. Those who do can receive credits to withdraw the same amount of water in the future.
This system is so complex that not even the state’s own drought negotiators are clear on how all of this will be worked out. What is clear, however, is that Arizona’s Drought Contingency Plan will require some legislative changes, because part of the way the plan would compensate farmers and other users, including cities and tribes, is through an exchange of credits.
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Pinal County agricultural districts were hoping that some cities could be persuaded to store some of their water in Pinal County, Orme said. But those cities wanted to be sure they could store water in the Pinal area and still receive credit in their own areas.
Arizona’s Water Banking Authority, which holds credits in all areas, could facilitate that exchange, but “that requires some legislation,” Orme said.
Another needed law change has to do with a statutory definition called WaterBUD, which is shorthand for “Water that cannot reasonably Be Used Directly.” It essentially prohibits users from taking Colorado River water and storing it underground in order to obtain credits if the water could have been used right away. The mitigation plan put forward in November would require a partial repeal of WaterBUD.
Otondo said she would love to see the legislature vote on the Drought Contingency Plan at the beginning of session, in mid-January. “But I just don’t see the language being there and all the details hashed out.” She hoped things would be clearer after Christmas.