How Will AZDCP Fit Into The Colorado River Basin Drought Contingency Plan?

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While Arizona water managers and affected stakeholders have been meeting almost daily over the past several months to finalize the state’s Drought Contingency Plan (DCP), plans have been underway on a parallel track for several years to ensure the framework is in place for the entire Colorado River Basin DCP.

Chronic, often severe drought in the Southwest is seriously straining the Colorado River system. With Lake Powell less than half full and Lake Mead below 40 percent of capacity, the seven Colorado River states are preparing to act should Lake Mead continue falling toward critical surface levels. At the same time, some states – including Arizona – are developing drought contingency plans supporting intrastate needs to contend with future Colorado River shortages.

Last week, the U.S. Bureau of Reclamation released drafts of the Upper Basin DCP and Lower Basin DCP documents. This gives the first glimpse at what will be included in the interstate agreement amongst the Upper Basin and Lower Basin states. These documents contain actions that are in addition to the provisions of the existing system-wide agreement, formally known as the Colorado River Interim Guidelines for Lower Basin Shortages and the Coordinated Operations for Lake Powell and Lake Mead.

According to the Bureau’s website:

  • The Upper Basin DCP is designed to: a) protect critical elevations at Lake Powell and help assure continued compliance with the 1922 Colorado River Compact, and b) authorize storage of conserved water in the Upper Basin that could help establish the foundation for a Demand Management Program that may be developed in the future.
  • The Lower Basin DCP is designed to: a) require Arizona, California and Nevada to contribute additional water to Lake Mead storage at predetermined elevations, and b) create additional flexibility to incentivize additional voluntary conservation of water to be stored in Lake Mead.

These documents show the interstate framework into which the intrastate (in our case, AZDCP) will fit. AZDCP work continues and we anticipate our intrastate implementation plan and framework will be completed by the end of November, prior to the December Colorado River Water Users Association meeting, at which point the entire plan will come together.

For more information on AZDCP, visit ADWR’s website or CAP’s website.

The DCP Makes CO River Delivery Shortfalls Less Painful, But It Doesn’t Make Them Go Away

By Tom Buschatzke, Arizona Department of Water Resources Director, and Ted Cooke, Central Arizona Project General Manager

The State’s water stakeholders have been engaged for more than two months to craft Arizona’s approach to the Lower Basin Drought Contingency Plan. This effort, led by our two agencies, is directed toward “bending the curve” to protect Lake Mead from falling to critical levels.

Recent reports from the U.S. Bureau of Reclamation have stated that the Colorado River Basin has avoided shortage for 2019, but has at least a 50/50 chance of moving into a shortage declaration in 2020.

So, will this drought contingency planning effort change that course? Will it keep the basin out of the Tier 1 shortage to be declared at Lake Mead elevation 1075’?

The answer to both questions is, simply, “no.”

The Lower Basin Drought Contingency Plan, or LBDCP, is not designed to keep Lake Mead above the first tier of shortage. Rather, it’s meant to keep Lake Mead from further dropping to the most critical elevation levels, at which point Arizona’s Colorado River water users would be facing deep cuts to their water supplies and the river system would be in extreme stress.

The risks to the Colorado River have increased from what was expected when the Interim Guidelines for Lower Basin Shortage were established in 2007. The tools provided in those guidelines now are insufficient to address the current risks to the system.

Over the last several years, water users in the Lower Basin states have worked together to voluntarily contribute water to Lake Mead, staving off shortage since 2015. However, after nearly two decades of drought and the recent poor hydrology (meaning little snow in the Upper Basin), a Tier 1 shortage is imminent, even with these increased conservation efforts. Whether it’s in 2020 or a year or two after, that first level of shortage likely will occur, regardless of LBDCP.

If not to keep us from shortage, then why is the Lower Basin’s DCP important?

One of the most important components lies in the realm of collaboration.

By working together, Arizona, California, Nevada, the U.S. Bureau of Reclamation and now Mexico (through the recent treaty update known as Minute 323), we can chart a path forward so one state alone does not feel the brunt of shortage. Once LBDCP is in place, we can work in partnership to leave enough water in Lake Mead so the lake begins to recede at a slower level – the “bending of the curve,” which has been rapidly trending downward. It will take some time to get there, but by starting now, there will be more leverage and momentum to prevent the lake from falling to critically low levels.

To make this happen sooner, rather than later, we have formed a Steering Committee with representation from a variety of sectors within Arizona. This group has been meeting bi-weekly beginning in late July and likely will continue past Thanksgiving. This “AZDCP” effort includes four essential elements for implementing the LBDCP in Arizona, which the group has begun to work through. The goal is to have a plan in place before the end of the year that would incorporate broad-based agreement within Arizona supporting an effective LBDCP. The State Legislature would then consider the proposal in early 2019 to authorize the State of Arizona to sign the LBDCP.

Each public Steering Committee meeting we’ve held has essentially been standing-room only. It’s clear a lot of people believe negotiating an effective Lower Basin Drought Contingency Plan is vital to our State. And each meeting tends to spawn additional meetings with people throughout Arizona working feverishly to get this done – not to keep us out of shortage, but to keep us and the Colorado River system from being in an even worse place.

Much work has been done and much will continue to be done – but the sooner we have the drought-contingency plan in place, the greater the benefits we will all reap via a plan that is acceptable to all Arizona water users.

To stay informed, visit www.azwater.gov and www.cap-az.com/AZDCP.

Latest Drought Contingency Plan meeting agenda is released

The Arizona Department of Water Resources and the Central Arizona Project, co-hosts for the series of meetings on an intra-Arizona Drought Contingency Plan for protecting the Colorado River system, have released the agenda for their August 9 meeting.

The agenda can be found  here.

Scheduled for between 1-4 p.m. at the Burton Barr Public Library in central Phoenix, Thursday’s meeting represents the second gathering of the group’s Steering Committee.

The public is invited to attend.

 

 

Organizers of Arizona’s Drought Contingency Plan effort tab Steering Committee members

The co-sponsors of the statewide effort to complete a Drought Contingency Plan for  Arizona that helps protect Lake Mead from falling to dangerously low levels have named their Steering Committee.

The 37-member panel, co-chaired by Tom Buschatzke of the Arizona Department of Water Resources and Ted Cooke of the Central Arizona Project, will gather for the first time on July 26 at the CAP board meeting room in north Phoenix.

The meeting is a first, major step toward bringing DCP to closure in Arizona by addressing a broad range of issues that respect the concerns of all Colorado River stakeholders across the state. The two co-sponsoring organizations previously hosted two public briefings illustrating the need for a Colorado River system-wide DCP and the perils facing the system without one.

The Steering Committee gatherings also will be open to the public.

The Steering Committee’s goal is to prepare the way for the state Legislature to authorize ADWR Director Buschatzke to sign onto a system-wide agreement on behalf of Arizona.

 

 

Planning for July 10 Drought Contingency Plan public briefing underway

Lake Mead bathtub ring Mark Henle Arizona Republic

Lake Mead and the infamous “bathtub ring” photo courtesy Mark Henle/Arizona Republic

The next step toward bringing a Drought Contingency Plan in Arizona to closure is scheduled for Tuesday, July 10, at the Heard Museum in central Phoenix.

Co-hosted once again by the Arizona Department of Water Resources and the Central Arizona Water Conservation District, the public meeting is set for 1-4 pm at the museum auditorium, located at 2301 N. Central Ave.

The first step in this process – which is expected to open the door for legislative authorization for the ADWR Director to sign the system-wide DCP – began with a three-hour briefing on June 28.

The briefing, as well as the renewed commitment to drought-contingency planning in Arizona, is spurred by the serious conditions facing the Colorado River system, especially the Lower Basin region and Lake Mead.

The risks of Lake Mead falling below critically low reservoir elevations have tripled in the past decade, increasing the risks of potentially draconian reductions to Arizona’s Colorado River supply.  The tools provided in existing guidelines created by agreements among the Colorado River states now are insufficient to address the current risks to the system.

Information about that June 28 briefing, including a video recording of the entire proceeding, is available here.

Also available at ADWR’s Drought Contingency Planning website is a background packet about the briefing, as well as the complete package of slide presentations by ADWR Director Buschatzke, Central Arizona Project General Manager Ted Cooke and Terry Fulp, the Lower Colorado Regional Director for the U.S. Bureau of Reclamation.

A major focus of the July 10 briefing will include answering inquiries from the public about the DCP.

ADWR and CAWCD staff fielded dozens of questions during the June 28 briefing, including questions from audience members and from online viewers. The event on July 10 – which will include technical staff from both organizations on hand – will devote more time for responding to questions from the public.

The June 28 briefing closed with the announcement that an “Arizona Steering Committee” will be formed to discuss and recommend how to adopt and implement the Drought Contingency Plan in the Lower Basin of the Colorado River system in a way that is acceptable to Arizona water users.

While the delegates to the Steering Committee will be by invitation jointly provided by ADWR and CAWCD, the meetings and discussions will be open, and the public is invited to participate. The Steering Committee is tentatively scheduled to conduct its first public meeting on July 26th.

Additional details can be found at https://new.azwater.gov/lbdcp  and www.cap-az.com/AZDCP .

The July 10 Meeting

What: A further discussion, including more public inquiries, on the Arizona Discussion on a Lower Basin Drought Contingency Plan

When: July 10, 1-4 p.m.

Where: The Heard Museum, 2301 N. Central Ave., Phoenix 85004

Who: The Arizona Department of Water Resources, the Central Arizona Water Conservation District and the U.S. Bureau of Reclamation

ADWR’s Drought Contingency Planning website now live

A web page dedicated to providing up-to-date information on the effort to complete a Drought Contingency Plan in Arizona is now live.

The web page includes the complete agenda from the June 28 briefing co-sponsored by the Arizona Department of Water Resources and the Central Arizona Project, which included presentations by Bureau of Reclamation Commissioner Brenda Burman and Terry Fulp, BOR’s Lower Colorado Regional Director.

In addition, the web page includes the PowerPoint presentations by ADWR Director Tom Buschatzke, CAP General Manager Ted Cooke and BOR’s Fulp.

Also, the web pages include links to statements on the joint commitment to completing an Arizona DCP co-authored by Director Buschatzke and General Manager Cooke. As they are completed, the page will provide a calendar of upcoming DCP planning meetings, including the scheduled July 10 meeting.

Video of the June 28 briefing at the Arizona Historical Society Museum in Tempe will be posted when it becomes available.

The ADWR “Arizona Discussions on Drought Contingency Planning” web page can be found here.

 

Arizona Moving Forward On Lower Basin Drought Contingency Planning Discussions

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By Thomas Buschatzke, Arizona Department of Water Resources Director and Ted Cooke, Central Arizona Project General Manager

In a joint statement in May, our agencies, the Arizona Department of Water Resources (ADWR) and Central Arizona Water Conservation District (CAWCD) announced that we are committed to bringing the Lower Basin Drought Contingency Plan (LBDCP) to closure in Arizona by addressing a broad range of issues that respect the concerns of all stakeholders across the state.

The discussions between ADWR and CAWCD were only the first step and today, we hosted a public briefing describing the proposed LBDCP, which was developed to address those risks. Colorado River managers were invited to learn about the LBDCP and its importance within Arizona.

We were joined by the U.S. Bureau of Reclamation Commissioner Brenda Burman. The Bureau of Reclamation discussed how the risks to the Colorado River have increased from what was expected when the Interim Guidelines for Lower Basin Shortages were established in 2007.

In fact, the risks of Lake Mead falling below critically low reservoir elevations have tripled in the past decade, increasing the risks of potentially draconian reductions to Arizona’s Colorado River supply.  The tools provided in those guidelines now are insufficient to address the current risks to the system.

In recognition of these increasing risks, Arizona, California, Nevada, and Mexico have worked together in recent years to voluntarily contribute water to Lake Mead.  These efforts include system conservation programs and storage programs, and have served to stave off shortages in the Lower Basin from 2015 through 2018, and very likely in 2019.

We recognize that even these efforts may not be sufficient to reduce the risks posed by a drier future on the Colorado River.

More needs to be done.

Drought Contingency Planning

In today’s briefing, we outlined a framework of additional measures to reduce risks in the Colorado River system, called the Lower Basin Drought Contingency Plan (LBDCP).

The LBDCP is a plan developed by Arizona, California and Nevada and the United States.   It has several major components, including:

  1. Additional contributions to Lake Mead from Arizona and Nevada, along with new contributions from California and the United States.
  2. Incentives for additional storage in Lake Mead by creating flexibility for water users to store water and take delivery of storage even during lower reservoir conditions.
  3. A commitment by parties in the Lower Basin to protect elevation 1020 feet in Lake Mead, implemented through consultation to determine what additional measures would be necessary to protect that elevation.

Implementation of the Lower Basin Drought Contingency Plan will trigger additional contributions from Mexico through the Binational Water Scarcity Contingency Plan as detailed in the Minute 323 agreement, adopted in 2017.

Projections by the U.S. Bureau of Reclamation show that the LBDCP, along with contributions from Mexico and actions by the Upper Basin States, would reduce the risks of falling below critical elevations in Lake Mead.

The LBDCP achieves this reduction of risks by requiring additional incremental water-delivery reductions by Arizona water users.  These reductions will impact Arizona’s junior Colorado River priority holders. The LBDCP has the potential to impact to all CAP priority pools, but the most significant impacts are likely to be to the CAP NIA priority pool.

Arizona Next Steps

This briefing was the beginning of a series of public discussions involving many Colorado River water users, elected officials, and other key stakeholders in Arizona. We recognize that the LBDCP and its impacts are complex issues, and there will be more questions than those addressed today.  Therefore, we have scheduled a meeting on July 10 at the Heard Museum to answer questions, as well as to provide additional details about the LBDCP.

Today’s briefing closed with the announcement that an Arizona Steering Committee will be formed to discuss and recommend how to adopt and implement the LBDCP in a way that is acceptable to Arizona water users. While the delegates to the Steering Committee will be by invitation jointly provided by ADWR and CAWCD, the meetings and discussions will be open, and the public is invited to participate. The Steering Committee is tentatively scheduled to conduct its first public meeting on July 26th.  Additional details will be provided at our websites www.azwater.gov and www.cap-az.com/AZDCP.

We recognize that more must be done to protect Arizona’s Colorado River users from the uncertainty and risks of critically low elevations in Lake Mead.  We are committed to working with Arizona water users and other stakeholders to adopt and implement the LBDCP in a way that is acceptable to Arizona water users.

 

Arizona Water Resources director recommends a denial of lease deal for Quartzsite’s Colorado River water

After nearly ten months of evaluation, the Arizona Department of Water Resources has recommended that the Secretary of the Interior deny a proposed lease of the town of Quartzsite’s Colorado River allocation to the Central Arizona Water Conservation District.

On August 2, 2017, Quartzsite and the CAWCD submitted a request for consultation to the Department for the proposed lease to the District of its 1,070 acre-feet per year allocation. CAWCD is seeking the water to partially fulfill its statutory groundwater-replenishment obligations.

In his May 24 letter to Secretary Zinke, ADWR Director Tom Buschatzke said he recommended that the Interior Department deny the lease based on the fact that the allocation had never been put to a beneficial use, or “perfected” — a fundamental principle governing Arizona’s water law. As a result, the lease would be “inconsistent with the policies and laws of the State.”

“For that reason, the Department recommends that the United States deny the proposed lease if it is submitted for approval by Quartzsite and CAWCD,” wrote Buschatzke.

 

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Water Resources Director details plans for saving Lake Mead, concerns with CAWCD’s claim to “sovereign immunity”

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Director Buschatzke addresses legislative panel at “Learning Tour” gathering in Yuma

At a highly anticipated public meeting on water issues in Yuma on Friday, Arizona Department of Water Resources Director Tom Buschatzke told legislators and a packed audience that sound management of Arizona’s Colorado River supplies requires forbidding the operator of the Central Arizona Project canal from using “sovereign immunity” as a legal weapon against folks with Colorado River water entitlements.

“The State has concerns that [the Central Arizona Water Conservation District, operator of the CAP canal] will attempt to use the defense of sovereign immunity at the expense of water users in Arizona,” said Buschatzke. CAWCD has maneuvered, unsuccessfully thus far, to just do that.

“Sovereign immunity” is a legal protection that indemnifies some public entities – such as states and the federal government – from many types of lawsuits. CAWCD has acknowledged that gaining sovereign immunity as a so-called “arm of the State” of Arizona is of “fundamental importance” to the canal operator.

The Director reminded lawmakers that the District has attempted to use the defense in the past, notably in a federal case involving a Colorado River water entitlement holder, the Ak Chin Indian Community.

“To prevent CAWCD from claiming sovereign immunity in the future, the Governor’s Office and DWR proposed legislation that would clarify that CAWCD is not entitled to sovereign immunity in any type of lawsuit,” said Buschatzke.

“I would like to see our proposed legislation move forward this session.”

Buschatzke delivered his remarks at a special “Learning Tour” organized by legislative leaders seeking public input on proposals to reform Arizona water laws.

Organized by Sen. Gail Griffin and Rep. Rusty Bowers — chairmen, respectively, of the Senate and House natural resources committees — the tour already has taken public commentary at a meeting on March 9 in Casa Grande.

In addition to his oral testimony expressing opposition to CAWCD’s pursuit of a “sovereign immunity” legal defense against its own customers, Buschatzke also provided the panel with a more expansive written testimony.

That written statement illustrated the State’s priorities in reforming Arizona water law this year.

Those priorities include taking action to protect Lake Mead from falling to critically low elevation. Among those actions: winning legislative authority to finalize a “Drought Contingency Plan” with Arizona’s Lower Basin Colorado River partners.

A central feature of that plan is giving the ADWR Director authority to “forbear” delivery of Colorado River water conserved by an Arizona Contractor in Lake Mead. That means the Director would assure no other contractor could take that water from the troubled reservoir.

Director Buschatzke’s full statement to the legislative Learning Tour panel in Yuma follows:

Testimony of ADWR Director Tom Buschatzke Before the Special Meeting of the Arizona House Committee on Energy, Environment and Natural Resources

Yuma City Hall, March 23, 2018

My name is Tom Buschatzke. I am the Director of the Arizona Department of Water Resources or DWR.

I know that most of you are familiar with DWR, but for those who are not, it is the agency designated by the Legislature to represent the State of Arizona with the United States, other states, and Mexico on matters involving the Colorado River. The State Legislature and DWR, working with the Governor, are the appropriate entities to represent the State. DWR is also the agency tasked with protecting the State’s rights to Colorado River water.

I take those responsibilities very seriously.

Colorado River water is vital to our State.  No one knows that better than the people who live and work in Yuma, where approximately 1 million of Arizona’s 2.8 million acre-feet of Colorado River water is used. Colorado River supplies are becoming increasingly at-risk. Continuous, long-term drought coupled with an over-allocation of Colorado River supplies, the structural deficit, has not only brought Lake Mead to the brink of shortage, it has increased the probability of the Lake dropping to critically low elevations that could affect all Colorado River water users in the State.

The volume of water that Arizona receives every year from the Colorado River is tied to Lake Mead elevations. Once the Lake’s elevation falls below 1,075 feet, Arizona deliveries are reduced by 320,000 acre-feet, approximately 11% of Arizona’s total Colorado River allocation. Deeper, more extensive shortages occur at lower “trigger” elevations. Early shortages will hit water users in Central Arizona, and particularly the CAGRD and the Arizona Water Banking Authority, the hardest. At even lower elevations, draconian reductions will be necessary to protect remaining water supplies in the Lake.

“Continuous, long-term drought, coupled with… the structural deficit, has not only brought Lake Mead to the brink of shortage, it has increased the probability of the Lake dropping to critically low elevations that could affect all Colorado River water users in the State.”

Yuma water contractors hold some of the most senior rights on the River. But even senior rights are at risk when Lake Mead elevations plunge. If Lake Mead reaches deadpool at elevation 895 feet, no water can move past the dam. Picture a bathtub with only an overflow drain. It could have water in the tub that you could not get out of the tub. That is what “deadpool” is.

We anticipate that the Secretary of the Interior will act to avoid the Lake reaching deadpool, but we can’t know how. Modelling projects that waiting to act until the Lake reaches elevation 1020 could result in a 3 to 6 million acre-feet reduction in the Lower Basin. All Arizona Contractors should be concerned about the uncertainty that could result from possible Secretarial intervention.

To address this increasing risk, beginning in 2015 DWR, on behalf of Arizona, began meeting with representatives of California and Nevada, which also receive Colorado River water from Lake Mead, and the federal government to devise ways to keep more water in Lake Mead. That group developed a water management framework designed to do just that, called the Drought Contingency Plan or DCP.

The DCP is not yet in effect. There are still aspects of it which need to be resolved, and ultimately, the Legislature must approve it. But the core commitments embodied in the DCP are historically remarkable in many ways. The plan contains a collective commitment on behalf of the Lower Basin states to protect against Lake elevations falling below elevation 1020. It would require California, for the first time, to participate in mandatory shortage reductions. It also contains additional efforts by Nevada to conserve water in Lake Mead, and through its connection to Minute 323 to the Mexico Water Treaty, would require additional water savings from Mexico.

In order to receive these benefits, Arizona must be willing to give something as well. The DCP contemplates that Arizona will begin taking shortages at higher Lake elevations, Specifically, Arizona would be required to leave 192,000 acre-feet in Lake Mead at elevation 1090.

Impacts of that additional reduction will be partially mitigated when Lake Mead is kept above elevation 1075 by keeping CAP agriculture’s water supply whole. Incentives included in the DCP for conservation by Nevada, California, and Mexico are expected to help achieve that goal. But Arizona must also act to conserve water in Lake Mead to achieve that goal. Those actions by Arizona are known as DCP Plus.

In June of 2017, the Governor’s Office convened a group of stakeholders to deliver support for DCP and to find a way to make DCP Plus work. During that process, the Governor’s Office and DWR proposed a program to facilitate conservation efforts by Arizona Colorado River Contractors to target maintaining Lake elevations at or around 1,080 feet. The proposed program would facilitate conservation in several ways, one of which is to ensure that water that is kept or stored in Lake Mead by an Arizona Contractor would not be taken out by another Arizona water user. This last feature is achieved by giving the ADWR Director authority to “forbear” delivery of the water to other water users.

The Governor’s proposal has met with resistance. One the most vocal opponents has been CAWCD.

CAWCD is resisting efforts for all Colorado River water contractors to create conserved water, and in the process has sought to exercise an outsized role in shaping Arizona’s Colorado River water policy.

For example, Arizona Indian tribes have rights to nearly half of all the Colorado River water delivered through the CAP canal. At least one of those tribes, the Gila River Indian Community, is already leaving water in the Lake to help prop up Lake elevations. Tribes are interested in conserving additional water in Lake Mead through the creation of something known as Intentionally Created Surplus. Both the U.S. and the State of Arizona agree that they have the legal right to create ICS. However, to date, CAWCD refuses to recognize that right. We need all hands on deck within the State of Arizona.

“CAWCD is resisting efforts for all Colorado River water contractors to create conserved water, and in the process has sought to exercise an outsized role in shaping Arizona’s Colorado River water policy.”

With respect to DWR and the Governor’s Conservation Program proposal, CAWCD has asserted that it should have veto authority in all decisions about who in Arizona can conserve water and under what conditions.

CAWCD is governed by elected officials from Maricopa, Pima, and Pinal counties, yet they make decisions affecting all of Arizona. Several actions taken by CAWCD over the past few years demonstrate that CAWCD gives little thought to the broader statewide impacts of its actions.

I will give two specific examples, though there are more:

In 2014, the CAWCD entered into an agreement with the Metropolitan Water District of Southern California, the Southern Nevada Water Authority, and Denver Water for a pilot program to fund the creation of Colorado River system water through voluntary water conservation. Water that was left in Lake Mead pursuant to that agreement has been important in avoiding shortage, and no one seeks to deny or minimize that fact. However, that agreement was negotiated without the involvement of DWR, and contains at least one provision that should cause concern throughout the State of Arizona.

The pilot agreement recognizes conservation through reductions in the “consumptive use” of Colorado River water; however, rather than defining consumptive uses with reference to the “Colorado River mainstream,” as it was defined in U.S. Supreme Court’s Decree in the landmark case of Arizona v. California, the pilot agreement allows for the creation of system water through reductions to consumptive uses of water from the “Colorado River System,” including “water drawn from the Colorado River System by underground pumping.” The term “Colorado River System,” is defined in the pilot agreement to have the same meaning as in the 1922 Interstate Compact among the seven Basin States, which included not only the Colorado River mainstream in its definition, but also all of its tributaries.

We vigorously disagree with this reckless definition of “consumptive use.” It flies in the face of the landmark Supreme Court decision, Arizona v. California and the Boulder Canyon Project Act of 1928. The literal reading of this language suggests that all wells used by agriculture, industry, mining, cities, towns, and counties connected to water that is tributary to the Colorado River might be pumping Colorado River System water. If that were the case, all of those wells would need a contract with the Secretary of the Interior and those withdrawals would count against Arizona allocation of 2.8 million acre-feet. It appears that CAWCD gave no thought to the potential impacts of this language on water users across the State.

CAWCD’s disregard of the impacts of actions to other water users is also evidenced in its relentless efforts to claim sovereign immunity under the Eleventh Amendment of the U.S. Constitution. Under the Eleventh Amendment, states cannot be sued in federal court with certain exceptions. Political subdivisions of the state, like CAWCD, generally are not entitled to claim this immunity.

CAWCD nevertheless raised the defense in 2012 in an employment case filed in federal district court known as the Gressett case.  CAWCD argued that it should be entitled to sovereign immunity because it is an “arm of the State.” The district court rejected that argument.

CAWCD appealed the ruling and, in an effort to convince the Ninth Circuit Court of Appeals that it is an arm of the State, it made inaccurate claims about its authority and responsibility in securing and managing Colorado River water.  CAWCD also argued that the State of Arizona would be functionally liable for CAWCD’s debts if CAWCD were unable to meet them.

In fact, CAWCD was established to ensure that the cost of repayment of the State’s share of the construction of the Central Arizona Project would be borne by water users and tax payers in the three counties that benefit from CAP water deliveries, and not by the taxpayers in Arizona’s 12 remaining counties, who rely on other water supplies.

The State has concerns that CAWCD will attempt to use the defense of sovereign immunity at the expense of water users in Arizona. And in fact, CAWCD raised the defense in a case brought by the Ak-Chin Indian Community regarding the Community’s rights to the delivery of Colorado River water. The State of Arizona opposed CAWCD’s attempts to obtain a court ruling that it has sovereign immunity. CAWCD settled that case before the Ninth Circuit ruled on it.

CAWCD testified to the Legislature in early February that sovereign immunity is limited, and that it would not be used in contractual disputes. However, on February 26, 2018, CAWCD requested the court vacate its decision so that it can raise the defense of sovereign immunity in future lawsuits. CAWCD said that sovereign immunity is of “fundamental importance” to it. The State opposed this action as well.

The State is seeking a permanent resolution to this issue. To prevent CAWCD from claiming sovereign immunity in the future, the Governor’s Office and DWR have proposed legislation that would clarify that CAWCD is not entitled to sovereign immunity in any type of lawsuit. But that legislation appears nowhere in any bill. We are committed to protecting Colorado River water users in Yuma, La Paz, and Mohave counties, as well as those water users within CAWCD’s service area.

I would like to see our proposed legislation move forward this session.