When Scott J. Cameron, the acting commissioner of the Bureau of Reclamation, strode to a lectern on Thursday, he riffed off an old Ronald Reagan joke and insisted that the federal government would help manage dwindling water on the Colorado River.
“I’m at least trying to help you, as is the entire administration,” he told a group of officials, tribal representatives and experts at a University of Colorado Law School water conference in Boulder. Cameron expects to finalize a new river plan in the next two months to guide water management in the fall.
It seems he has more work to do.
At the conference on Friday, Colorado and Nevada’s top river negotiators said aspects of Reclamation’s plan to release water from massive, federally owned reservoirs like Lake Powell and Lake Mead would likely need to be revised.
In 2007, Reclamation set guidelines for how water should flow from major reservoirs on the river, including from Powell and Mead.
Those rules functionally set how much water is available to the river’s Upper Basin states (Colorado, Utah, Wyoming, New Mexico) versus how much flows downstream to the Lower Basin (California, Arizona and Nevada) and Mexico.
But those guidelines expired last year. For years, states have been at loggerheads, unable to reach consensus on a new plan and blowing past deadline after deadline. As a result, Reclamation is drafting its own updated plans to manage those reservoirs, with or without the states.
River negotiations have taken on increased urgency as the West suffers through a sustained drought, and Colorado observed its worst snowpack on record this year.
Lake Powell is in a particular bind — forecasts show it may only receive 13% percent of its normal spring water flow, the lowest amount on record ever. That trickle of water could imperil massive amounts of hydroelectric power produced from its dam, and water supplies for millions of people downstream.
In January, Reclamation released a draft environmental analysis of five options to release and distribute river water from reservoirs throughout the basin. Those options range from doing nothing to distributing water based on availability. It’s now in the home stretch of analyzing those options and finalizing its plan.
On Thursday, Cameron offered only cursory details about the preferred plan. He said it would guide reservoir releases for a decade, but the guidelines would be reviewed and changed every two years to account for shifting water supplies.
“We think it makes sense to take a second look at decision-making every couple of years,” Cameron said.
That is emerging as a key sticking point for both Colorado and Nevada. Becky Mitchell, Colorado’s top river negotiator, said the prospect of renegotiating guidelines every two years would be “difficult to fathom.”
John J. Entsminger, Nevada’s top negotiator, agreed and said reopening talks every two years was “not a good plan.”
Entsminger instead pointed to an existing proposal from the Lower Basin states to guide reservoir operations for the next two years, as a temporary plan that could avoid litigation in the short-term.
As Reclamation barrels ahead with its environmental review, Cameron said the agency would be open to a state-led consensus at any point in the next decade.
“If peace breaks out and we have a seven-state agreement on something — a year and a half from now or four and a half years from now — we’re happy to take that,” he said.
Impasse could reach U.S. Supreme Court
A major sticking point in negotiations has been how to divide up water cuts among the Upper and Lower basins. A 1922 legal compact is the foundation for dividing up the basin’s water, but it left plenty of room for interpretation and, inevitably, disagreement.
“There’s no dispute that the compact is inherently ambiguous,” Entsminger said. “We have a four-page compact and a 400-page [draft environmental impact statement].”
Once Reclamation finalizes its preferred plan, outside groups could sue the bureau in federal court, if they feel it made mistakes in its environmental review. But the real challenge would be if one of the seven states in the basin sues, which could trigger a Supreme Court battle.
That process may take years, if not decades, and would likely not provide certainty to the 40 million people who rely on Colorado River water anytime soon, according to Entsminger.
“You’re talking about multi-decadal, grinding non-answers in front of the Supreme Court in all likelihood,” Entsminger said, who cautioned that states should avoid that outcome.
Mitchell also said Colorado did not want litigation, but that increasingly dire river conditions made finding middle ground tricky.
“As hydrology worsens, consensus is harder to come by,” she said.
A looming deadline could help states reach an agreement. Entsminger said states were barrelling towards a Supreme Court showdown two decades ago, but federal threats to take over the river’s management led the states to reach an agreement in 2007.
There are still many open questions about a future agreement, like whether Upper Basin states will absorb some water cuts, whether agricultural producers will take larger water cuts, and if tribes will receive more of the water they are legally entitled to.
During one conference session, Ute Mountain Ute member Donald Whyte teared up while delivering an impassioned plea to the audience to consider tribal water rights. The tribe, located in southwestern Colorado, has seen a major cut to their federal water allocation, according to Mitchell.
“On my reservation, I have no continuous water source traveling across my land,” Whyte said, while reflecting on the fact that the tribe originally hailed from the headwaters of major Western rivers, including the Colorado.
“I know we don’t cry, but when it comes to this issue, water is life,” he added.
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