With 15 Days to Go, Draft Legislation for Arizona Drought Plan Emerges

The Colorado River, at the Arizona-California border, around the year 2005.
The Colorado River, at the Arizona-California border, around the year 2005. Courtesy of the Central Arizona Project
After months of roller-coaster negotiations, Arizona finally has the makings of legislation that would allow it to take part in a regional plan to prevent the Colorado River system from collapsing.

The package of six draft documents emerged on Wednesday, 15 days before a federally imposed deadline.

Those documents, copies of which were obtained by Phoenix New Times, began circulating among lawmakers, drought negotiators, and stakeholders Wednesday, the third day of the legislative session. They addressed nearly all elements on a list of legislation that drought negotiation leaders said early in January would be necessary for Arizona to implement its plan.

That list included limited changes to how water users receive credit for storing water underground. It also called for funding to build pumps and other infrastructure to draw groundwater in Pinal County.

The draft legislation is "a work in progress," said Sally Lee, spokesperson for the Arizona Department of Water Resources.

The package of drafts was sent Wednesday afternoon to members of the steering committee, a group of 40 or so stakeholders who, over many months, bargained and negotiated to develop Arizona's plan. In an email to Steering Committee members, Tom Buschatzke, the director of the Arizona Department of Water Resources, said that the language had been sent to legislative majority and minority leaders in the Arizona House and Senate.

"It is important to emphasize that draft legislation was crafted by ADWR in good faith to reflect the discussions by the Steering Committee regarding the Arizona Implementation Plan," Buschatzke wrote, adding that he welcomed comments.

Matt Specht, a spokesperson for the House Republican caucus, confirmed Wednesday that House leadership had received copies of the draft package, but he could not say whether all legislators had.

The draft legislation is likely to bring some relief to many observers and participants in the drought-negotiating process — in both Arizona and other Southwestern states. As recently as early Wednesday afternoon, some voiced concerns that they still had not seen legislative language.

Of the seven Colorado Basin states that are part of the multistate Drought Contingency Plan — Colorado, Wyoming, Utah, New Mexico, Nevada, California, and Arizona — only Arizona and California have not yet finalized their plans.

If states do not do so by January 31, the federal government has said it will step in and dictate how states will take cuts to their supply of water from the Colorado River. It expects to declare a shortage on the river in 2020, and the Drought Contingency Plan is a chance for states to agree on how they'll deal with that shortage, rather than having the Secretary of the Interior tell them what to do.

Drought negotiators in Arizona, which holds the lowest-priority rights to this water, fear that federally imposed cuts would be far worse than those spelled out in the Drought Contingency Plan.

Arizona is the only state that has to pass legislation in order for the Drought Contingency Plan to take effect.  Lawmakers must authorize the director of the Arizona Department of Water Resources to sign a multistate plan on behalf of Arizona, and they must also approve of Arizona's internal plan, which spells out how its own cities, tribes, industries, and farmers will share cuts to their supply of Colorado River water.

But that plan requires significant funding commitments as well as some, albeit mostly temporary, legislative changes.

Part of the draft package sent out Wednesday appropriated $30 million, which Governor Doug Ducey promised in November, from the state general fund to create a fund for system conservation. System conservation essentially means paying water users not to take water out of the reservoir Lake Mead.

Another part of the package was a joint resolution authorizing the director of the Department of Water Resources to sign the Lower Basin Drought Contingency Plan on behalf of Arizona. Who would sign this multistate agreement among Arizona, Nevada, and California was a point of contention that was tabled only in the last month, after the board of the Central Arizona Project, which transports water from the Colorado River to Maricopa, Pima, and Pinal counties, relinquished demands to co-sign.

The package also contained a few, limited changes to WaterBUD. This unusually poetic acronym stands for "Water that cannot reasonably Be Used Directly," and it is a statutory definition that dictates how water users can receive or exchange credits for storing water underground.

The water company EPCOR and the city of Tucson had asked for a partial repeal of this statute, to allow them to shift around water — water brought in from the Colorado River, or stored water pumped from below ground — so that they could contribute or guarantee surface water to farmers in Pinal County, once water cutbacks begin in 2020.

Tucson had also asked to raise the amount of credit a water user gets for storing effluent, a.k.a. wastewater, underground, from 50 to 95 percent. That, too, was part of the draft.

Farmers stand first in line to lose their Colorado River water, after giving up rights to it in 2004. But they have powerful allies in the Legislature, and the draft package also had a few things in it for them: Money and, notably, moral support.

"The Legislature finds that reductions in deliveries of Central Arizona Project water would cause substantial injury to the local economy and seriously harm the general economy and welfare of this state and its citizens," reads the draft legislation authorizing funding for groundwater infrastructure in Central Arizona.

The state would create a temporary fund to build this infrastructure, including $5 million from the general fund. Some money would also come from temporarily repurposing a tax on groundwater pumping in Pinal. From 2020 through 2026, when the Drought Contingency Plan is expected to take effect, anyone who pumped water in that area would be charged up to $2.50 per acre-foot (an acre-foot is about 326,000 gallons), to go to "groundwater and irrigation efficiency projects," the draft said.

Irrigation districts and the Central Arizona Water Conservation District would also put up money, it said, without specifying amounts. Irrigation districts have previously said they would contribute $5 million, as has the Central Arizona Water Conservation District.

The timeline for the draft language remains unclear for now. "Legislators are still in the process of digesting the drafts," Specht said.

House Speaker Rusty Bowers, who sets the agenda, has made it clear he won't be rushed. He has joked — if one can joke about the future of water in the West — repeatedly in recent weeks that if the legislation isn't done by January 31, then it will be done on January 32.

Joseph Flaherty contributed reporting.
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Elizabeth Whitman was a staff writer for Phoenix New Times from March 2019 to April 2020.