Arizona water coalition declares support for “Implementation Plan” to complete state’s plan for Colorado River delivery shortfalls

The Water for Arizona Coalition, a group comprising Arizonans who support policies and innovative practices to ensure a reliable water supply to meet the state’s needs, has released a statement  of support for the “Implementation Plan” that was unveiled at the November 29 Steering Committee meeting at Central Arizona Project headquarters.

The coalition singled out three tenets of the Implementation Plan that its members consider key:

  • Governor Ducey’s pledge to allocate $30 million in funding for system conservation as a part of the implementation of DCP
  • The readiness of the Walton Family Foundation and Water Funders Initiative to work in partnership with public funders and other stakeholders to fill the $8 million funding gap for system conservation in the Lower Basin
  • The benefits of the proposed mitigation for the Colorado River system and water levels in Lake Mead

The coalition’s complete statement:

11.30.2018 Water for Arizona AZ DCP Statement

 

Agenda for first Steering Committee gathering on Colorado River drought-contingency planning is released

The agenda is out for Thursday’s meeting of the newly formed Steering Committee that will recommend how to adopt and implement a Lower Basin Drought Contingency Plan for Arizona.

The agenda can be found here and here.

Thursday’s agenda includes plans for discussing four key elements for implementing a drought-contingency plan in Arizona. They will include: plans for mitigating the impact on agriculture of a Colorado River water delivery shortage; tribal “intentionally created surplus” (ICS) water for Lake Mead; an Arizona Conservation Plan; and issues involving excess Colorado River water.

The Steering Committee was formed as a collaborative effort by the Arizona Department of Water Resources and the Central Arizona Project to help protect Lake Mead from falling to dangerously low levels.

The Steering Committee’s mission is to recommend an LB DCP that is  acceptable to Arizona water users. In addition to the July 26 event, eight more Steering Committee meetings are scheduled to be held between now and December. All meetings are open to the public.

Thursday’s meeting, scheduled for 1-4 p.m. at CAP’s headquarters at 23636 N 7th Street in north Phoenix, will be recorded for a later posting on the ADWR and CAP websites.

 

 

Attention focusing on planned June 28 Colorado River briefing by ADWR and CAP

New Mexico journalist John Fleck, whose well-informed blog has long served as a sort of news pathfinder regarding Colorado River issues, just posted a lengthy take on the briefing to be co-sponsored by the Arizona Department of Water Resources and the Central Arizona Project in Tempe on June 28.

The briefing, which is to feature Bureau of Reclamation Commissioner Brenda Burman as keynote speaker, will examine the systemic risks posed by potential shortages on the Colorado River.

The event also represents the kick-off of a continuing Arizona discussion on how to adopt and implement the plans of the Lower Basin states of Arizona, California and Nevada for contending with a delivery shortfall, known as the Drought Contingency Plan (see details of the briefing below).

The June 28 event will be livestreamed.

According to Fleck, a shortfall in deliveries of Colorado River water will constitute a lesson in the difference between an “allocation” of water from the river and an “entitlement” to that water. Fleck illustrates the various challenges facing Colorado River water-users with an examination of agriculture in Pinal County, where the river water delivered via the CAP canal system is subject to availability. It’s an interesting analysis and well worth a read.

The June 28 event:

What: An Arizona Discussion of the Risks to Arizona’s Colorado River Supply and the Colorado River Drought Contingency Plan

Who: Panel will include Bureau Commissioner Brenda Burman; ADWR Director Tom Buschatzke; and, CAP General Manager Ted Cooke; the event also will feature presentations from BOR staff on the conditions on the Colorado River and the potential for delivery shortfalls in coming years

Where: Arizona Historical Society Museum at the Arizona Heritage Center at Papago Park – hosted in the auditorium; 1300 N. College Ave, Tempe 85281

When: June 28, 1-4 pm.

How: The briefing will be livestreamed online; visit azwater.gov or CentralArizonaProject.com for details

 

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.

 

Feds now see Lake Mead levels sinking 20 feet lower by ‘19 than predicted just last month

 

Mead

The sensational news about record-setting snowpack in the Sierra Nevada of California and “atmospheric rivers” delivering over 1,000 percent of normal winter rainfall to Big Sur has disguised a much less-than-sensational record of winter moisture elsewhere in the West.

The winter snowpack on the western slopes of the Rockies – the source moisture for the Colorado River – is producing much less runoff than had been anticipated.

As a result, the federal Bureau of Reclamation now is predicting that Colorado River releases from Lake Powell into Lake Mead will be far lower than what the Bureau had anticipated in March of this year.

Indeed, the Bureau now is predicting a huge drop in Lake Mead inflows from those predicted just a month ago.

According to BOR’s June 24-Month Study , projected flows into Lake Mead most likely will result in water levels 20 feet lower on January 1, 2019 than the Bureau had estimated in its 24-Month Study released in May.

The May 24-Month Study prepared by BOR (based on the Colorado River Basin Forecast Center’s water supply forecast) concluded that on January 1, 2019, Lake Mead’s depth likely would be 1,096.77 feet.

Just one month later, the Bureau now is projecting Lake Mead’s surface level on that date at 1,076.53 feet, literally inches above the level that would trigger automatic delivery cutbacks, mostly to central Arizona’s allotment of Colorado River water.

The dramatic turn-around in anticipated water flow into Lake Mead is a direct result of disappointing expectations for water flow into Lake Powell upstream. Powell’s diminished inflows are due to a dry early spring and consistently warmer-than-average temperatures in the Rocky Mountain region through the spring.

The sudden drop-off of moisture in the wake of an extremely wet January and February was “the big game-changer,” said Jeff Inwood of the Arizona Department of Water Resources’ Colorado River Team.

“The spring snows stopped and it got warmer faster, so lots of the snowpack melted off.”

The severe drop-off in anticipated flows into Lake Mead represents a shocking turn-around in expectations for the near-term health of the great reservoir.

Scarcely more than a month ago, most water analysts were breathing a sigh of relief in the wake of years of drought and diminished Rocky Mountain snowpack.

Improved moisture levels this past winter, they believed, had pushed back a Day of Reckoning for Lake Mead. Better-than-average winter snows would prompt water releases from Lake Powell that would raise Mead levels above critical stages.

The anticipation of relief was so palpable, in fact, that some Arizona water users and managers began to believe that the state would have more time to deal with the “Drought Contingency Plan – Plus,” the intra-Arizona plan that, once approved, would spread water-delivery cuts among a wider swath of Arizona water users.

In fact, as recently as March, some analysts were talking openly of a possible “equalization” release this year from Lake Powell to Lake Mead – a comparatively enormous release of water, perhaps of more than 11 million acre-feet. John Fleck, the Water Resources Program director at the University of New Mexico, calculated in mid-March that if the heavy winter moisture held, Lake Mead “would rise 27 feet this year.” 

Fleck added that “it probably won’t” hold. And he was right. The June 2017 24-Month Study results have made that prediction official: the big 2017 water balloon now appears to have burst.

Modeling conducted by the Bureau in addition to the 24-Month Study in April indicated that there remained a 45% probability of Lake Powell operating in the Equalization Tier with a release from Lake Powell of greater than 8.23 MAF in 2018.

In March, water analysts were predicting a very healthy 10.4 million acre-feet inflow into Lake Powell off the Rocky Mountain watershed during the critical April-July runoff season.

Now? Updated June statistics indicate inflows to Lake Powell of just 8.3 million acre-feet, a drop-off of over 2 million acre-feet — more than the entire annual delivery of the Central Arizona Project’s allotment for its Maricopa, Pinal and Pima County customers.

“We’ve seen this before,” said Water Resources Director Tom Buschatzke, noting that some of the region’s driest winter seasons started out with hope-inspiring bursts of moisture. “We saw it as recently as 2012 and 2013.”

“Recent scientific studies have been predicting this would be more of what we could expect to see in the future,” Buschatzke said.

The diminished expectations of water flowing into Lake Powell directly impact expectations for the health of Lake Mead in the coming years.

The Bureau of Reclamation’s data analysis indicate that on January 1, 2018 – the period during which heavy Lake Powell releases were expected to give Colorado River water officials a “breather” – Lake Mead’s water level likely will be at just 1,080.49 feet, barely more than five feet above the shortage trigger of 1,075 feet.

The primary driver of those lower lake levels is the diminishing amount of water to be released from Lake Powell – down from an anticipated “equalization release” of 10.8 million acre-feet during Water Year 2018, as reported in May, to a “balancing release” of just 9.0 million acre-feet, as reported by the Bureau in June.

Water Resources director hails agreement to expand uses of CAP canal system

“System-use agreement” between Central Arizona Project and the federal Bureau of Reclamation a major milestone for vital water-delivery system

Central Arizona Project photo by Philip A. Fortnam
Central Arizona Project board President Lisa Atkins and board member Sharon Megdal signing the CAP System Use Agreement on Feb. 2

 

Central Arizona Project and the federal Bureau of Reclamation reached an historic agreement on Thursday that allows for “new and innovative” uses of the CAP’s 336-mile system of canals, including transporting new water supplies, exchanging supplies among users and efficiently accessing water stored underground by the Arizona Water Banking Authority and others.

The agreement creates a legal framework for a variety of water supplies to be moved through the system, including many dedicated to addressing possible future shortfalls in Arizona’s Colorado River water allocations.

“It allows for flexibility in managing our Colorado River water supplies,” said Tom Buschatzke, director of the Arizona Department of Water Resources.

Until now, so-called “non-CAP water” – that is, water controlled by users other than the Central Arizona Project – flowed through the elaborate delivery system only on an ad hoc basis.  In 2014, for example, the cities of Phoenix and Tucson reached an agreement allowing Phoenix to store some of its unused Colorado River allocation in Tucson-area aquifers.

Thursday’s agreement provides a legal framework for such water exchanges, thus opening the door for further innovation, as well as for future agreements on water quality and financial issues.

CAP General Manager Ted Cooke also noted the additional flexibility that the agreement provides his agency. Cooke thanked the agencies involved in helping make it happen for their collaborative efforts:

“This agreement provides us with the flexibility for cost-effective recovery of stored water, including more than four million acre-feet of CAP water stored in the aquifers of central and southern Arizona,” said Cooke.

“I would like to thank the negotiators from the Department of the Interior and the Bureau of Reclamation, along with the significant contributions from the Arizona Department of Water Resources and the Arizona Water Banking Authority.”

Water Resources Director Buschatzke joined Cooke in extending thanks to the Arizona congressional delegation – especially noting the efforts of Arizona Senator Jeff Flake – for helping make the system use agreement happen.

“Our role was to support efforts to complete the system use agreement for the benefit of Arizona water users,” added Buschatzke.

“We sought to support the maximum flexibility of this important asset.”

Gov. Doug Ducey expressed thanks to former Interior Secretary Sally Jewell for her efforts in support of the system-use agreement.

The CAP canal system was built by the federal Bureau of Reclamation for the state of Arizona and is managed and operated by the Central Arizona Project.

The deal is especially valuable to the Water Bank, which pays to bring Colorado River water through the CAP system into central and southern Arizona. The Water Bank stores that water in underground aquifers, or directly recharges it into underground storage facilities. It also arranges for water deliveries to irrigation districts, which use the water in lieu of mined groundwater.

Water Bank officials helped review the agreement.

The deal creates a legal framework allowing the Water Bank to use the CAP system to make recovered water available during potential periods of shortage of Colorado River water deliveries to Arizona. Until now, the Water Bank’s capacity to make use of the water it stores has been extremely limited.

 (A Central Arizona Project statement released Thursday contributed to this blog post)