Tensions in the Colorado River Basin continue to escalate this summer amid the driest period in the basin in the past 1,200 years. Here is a snapshot of where things stand.

During a U.S. Senate hearing on Western drought on June 14, 2022, Bureau of Reclamation commissioner Camille Touton gave the seven Colorado River Basin states a 60-day deadline to create an emergency plan to reduce basin-wide water use between 2 and 4 million acre-feet of water in the next year, or the agency would step in and make the cuts itself. The August 15 deadline came and went without agreement reached among the basin states. Reclamation announced on August 16 that it would not enact any cuts beyond those already agreed to by the Lower Division states, but stated at the end of the August 16 release that it would initiate a number of administrative actions aimed generally at basin-wide conservation and improved reservoir management.

Under the 2019 Drought Contingency Plan (DCP) and the 2007 Interim Guidelines for Lower Basin Shortages and the Coordinated Operations for Lake Powell and Lake Mead (Interim Guidelines), the amount of water allocated to the Lower Division states depends on water levels at Lake Mead. Last year, the lake fell low enough for the federal government to declare a first-ever water shortage in the region, triggering mandatory cuts for Arizona and Nevada as well as Mexico in 2022. The August 2022 24-Month study determined Lake Mead will operate in its first ever Level 2a Shortage Condition in calendar year 2023, increasing the DCP conservation requirements for Arizona and Nevada, in addition to the shortage reductions prescribed by the Interim Guidelines. The latest reductions fall hardest on Arizona, which will conserve 592,000 acre-feet in 2023 — 21% of its annual allotment (this figure includes an existing cutback from last year). Nevada will conserve about 25,000 acre-feet, and Mexico will conserve 104,000 acre-feet, or 7% of its annual portion. Under the DCP agreement, California does not have to further conserve water for now, but will in the coming years if levels at Lake Mead continue to drop.

In response to Reclamation’s June ultimatum, the four Upper Division states, acting through the Upper Colorado River Commission, sent the agency a letter proposing a five-point plan to continue propping up water elevation at Lake Powell and to facilitate voluntary reductions in water use. The plan did not include any mandatory cuts however, maintaining that the bulk of reductions should come from the Lower Basin, which the Upper Basin States say uses nearly twice the amount of water as the Upper Basin.

The Department of Interior’s authority over Colorado River water allocation varies drastically between the Lower Division and the Upper Division. In the Lower Division, each entity that uses water from Lake Mead has to have a contract with Reclamation, meaning the federal government is directly involved with water deliveries. Under the 1928 Boulder Canyon Project Act and the U.S. Supreme Court’s 1963 decision in Arizona v. California, the Secretary of Interior is vested with broad authority to determine how water from Lake Mead is to be allocated among the Lower Division states in times of shortage. To date, shortage allocations in the Lower Division have been spelled out under voluntary agreements among those states, including the 2007 Interim Guidelines and the more recent DCP, but the Department of Interior continues to have authority to make shortage allocations unilaterally in the absence of state agreements.

By contrast, Department of Interior authority to unilaterally curtail water use in the Upper Division is untested and not clearly spelled out anywhere. In the Upper Basin, Reclamation made emergency releases in 2021 and 2022 from Blue Mesa, Flaming Gorge, and Navajo reservoirs to prop up water elevations at Lake Powell. In this instance the agency’s authority was not questioned, since these operations were provided for in the DCP. The concept was that these reservoirs, along with Lake Powell, store what is known as “system water,” used specifically to help the Upper Basin meet its delivery obligations to the Lower Basin. But water managers in the Upper Basin are questioning what, if anything, Reclamation is allowed to do (or what it might attempt to do) with the water contained in Reclamation’s Upper Basin reservoirs outside the Colorado River Storage Project (CRSP) reservoirs. Water in non-CRSP reservoirs has, until now, been largely administered under state law.

The DCP and the 2007 Interim Guidelines — the two primary instruments governing the operation of Lake Powell and Lake Mead — are set to expire in 2026. Reclamation has published a Federal Register Notice requesting public input on the NEPA process for development of post-2026 operational criteria by September 1, 2022. The agency anticipates initiating the formal NEPA process in early 2023. Meanwhile, Congress has made billions of dollars available through the Bipartisan Infrastructure Law, to be spent on projects associated with water storage, groundwater storage, and conveyance projects, water recycling and reuse projects, water desalination projects and studies, watershed management, dam repair and replacement, repairing and replacing aging infrastructure, and WaterSMART grants. The recent Inflation Reduction Act also allocates $4 billion to be administered by Reclamation over the next four years, to be used to pay farmers, rural districts, and others to fallow crops and install efficient watering technology, or to pay for other voluntary water reductions in the Lower and Upper Basins. How these federal resources implement conservation throughout the Colorado River Basin and if those measures are enough remains to be seen.

For further information or assistance, please contact Dan Condren (dcondren@somachlaw.com) in our Colorado Office.

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