In Utah, there is a significant effort underway to build a water delivery pipeline from Lake Powell to transport part of Utah’s Colorado River entitlement to Utah’s St. George area.  As the federal environmental review for the proposed Lake Powell Pipeline in Utah continues, Utah’s six fellow Colorado River Basin states weighed in as a group, cautioning that unresolved issues remain.  Writing to the Department of Interior, these states urged that the proper forum to resolve their concerns is through the ongoing collaborative process among the seven basin states.  Otherwise, the letter predicts litigation will ensue over the environmental review should its current trajectory remain in place.

The proposed pipeline would divert up to 86,000 acre-feet of water annually from Lake Powell to Washington County in southwestern Utah, which location drains to the Virgin River, and is technically in the lower basin.  The environmental impacts of the proposed pipeline are subject to federal review under the National Environmental Policy Act (NEPA).  The U.S. Bureau of Reclamation issued a Draft Environmental Impact Statement (EIS) for the project on June 8, 2020, and stated that it hopes to publish a Final EIS in November 2020, and a Record of Decision approving the review in January 2021.  On September 8, 2020, representatives from the States of Arizona, California, Colorado, Nevada, New Mexico, and Wyoming sent a joint letter to Department of Interior Secretary David Bernhardt, requesting that the agency refrain from issuing final decisions on the project until consensus between the seven basin states has been reached around “outstanding legal and operational concerns.”  As advocates for the collaborative efforts that have effectively managed the river for the last 20 years, “that work is undeniably best undertaken as part of a seven-state process rather than as an incident to the NEPA process or ensuing litigation with third parties conducted by courts.”

The six-state letter expresses that the project “raises significant questions under the 1922 and 1948 Compacts, including questions regarding the accounting of such diversion and use, as well as operational issues under the Law of the River.”  The 1922 Colorado River Compact divides the annual flow of the Colorado River between the Lower Basin states of Arizona, California, and Nevada, and the Upper Basin States of Colorado, Wyoming, Utah, and New Mexico.  The 1948 Upper Basin Compact determines each Upper Basin state’s respective allocation.  Additional “Law of the River” governance includes the Department of Interior’s 2007 Interim Guidelines document providing for coordinated operation of Lake Powell and Lake Mead, along with a regime for the storage and use of conserved water in the Lower Basin, and the 2019 Drought Contingency Plan in which the Lower Basin states each agreed to specified usage cutbacks in the event of a declared shortage condition in the Basin.

One key point underlying the “legal and operational concerns” in the states’ letter is a confounding fact:  while Utah is an Upper Basin state, Washington County in southwestern Utah is located geographically within the Lower Basin.  The Lake Powell Pipeline would thus divert Upper Basin water for use within the Lower Basin as a geographic matter, but still within an Upper Basin state as a legal matter.  Such an arrangement does not fit cleanly into the Colorado River’s current governance scheme.  However, a similar circumstance exists for the Navajo-Gallup Water Supply Project, which diverts a portion of New Mexico’s Upper Basin entitlement for use in the Lower Basin, and the letter highlights the basin states’ collaborative work to support that project.

Importantly, the six states do not oppose the Lake Powell Pipeline outright—they “commit through this letter to act in good faith to identify consensus solutions to the interstate questions that the Lake Powell Pipeline raises for the entire basin.”  The purpose of the letter is rather to identify the proper forum for resolving the foregoing concerns, which according the six states is not the federal environmental review process:

For more than twenty years, the Basin States, including Utah, and Interior have worked tirelessly to achieve and maintain the reputation of the Colorado River as a model for other systems of management by consensus and collaboration…

The Lake Powell Pipeline’s prospects for success are substantially diminished if we are compelled to address such issues in the context of the current Lake Powell Pipeline NEPA process rather than through the collaborative, seven-state process we have developed.  Moreover, we believe the probability of multi-year litigation over a Lake Powell Pipeline FEIS or ROD is high, and that certain Law of the River questions properly left to discussions and resolution between the states are likely to be raised in such suits.  That is not a recipe for creating the kind of meaningful and positive change needed to sustain the Colorado River in the coming decades.

Utah’s Department of Water Resources published an even-keeled response to the six-state letter the day after it was sent, stating that comments from other basin states “were expected and are part of a comprehensive process,” and affirmed a commitment to “work diligently to address their concerns over the coming months.”

Historically the Department of Interior has endorsed the long-standing consensus that Colorado River governance is a matter best left to the seven states and that federal intervention is warranted only in circumstances of impassible gridlock.  Such a circumstance has yet to materialize in the modern era.  For the Department of Interior to disregard the six-state letter—and issue a final decision in the NEPA process before resolution of the outstanding issues among the basin states themselves—would represent a marked departure from tradition and seems therefore unlikely.

For more information on the Lake Powell Pipeline project or Colorado River governance in general, please contact Dan Condren (dcondren@somachlaw.com) or Ramsey Kropf (rkropf@somachlaw.com) in our Colorado office.

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