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With atypical haste, on April 8, 2019, Congress passed legislation authorizing the Secretary of the Interior to implement the Colorado River Drought Contingency Plan (DCP).  Once the President signs the DCP, the states can execute and implement a series of cascading agreements designed to shepherd the new Colorado River water savings plan.  The mighty Colorado provides water to over 40 million people in the seven Colorado River Basin states, and helps drive economies throughout its winding course.  Over time, this sweeping and historic agreement will touch many western water users.  The DCP also forms the basis for upcoming future negotiations for sharing Colorado River resources after 2026.

On March 19, 2019, after two years of negotiation among the seven Colorado River Basin states, the Governor’s representatives of the seven states formally submitted a letter to Congress containing the finalized DCP and requesting Congress swiftly pass the authorizing legislation.  Shortly thereafter on April 2nd, Representative Raul Grijalva (D-AZ) introduced H.R. 2030 (The Colorado River Drought Contingency Plan Authorization Act), which passed the House on April 8th and the Senate on April 9th, and is now awaiting the President’s signature.  The bill’s passage was essentially free of conflict, though some groups expressed concern that fast-tracking the legislation would risk skirting federal environmental laws.  Representative Grijalva addressed this issue when he testified to Congress that the actions to be taken under the DCP are within the analyses and range of effects reviewed in existing environmental documents.

The legislation itself is short, and simply directs the Secretary of the Interior to implement the terms of the DCP.  The DCP is designed to protect critical water elevations at Lakes Powell and Mead, the respective water storage linchpins for the Upper and Lower Basins.  Historically dry conditions prevailing since 2000 have sapped the reservoirs, leading to their lowest combined storage since Lake Powell began filling in the 1960s.  Thus, collective action is necessary to avoid the drastic disruptions that might potentially ensue from further declines in reservoir elevations, including mandatory water cutbacks in the Lower Basin, and curtailed hydropower production at Glen Canyon Dam.

The finalized DCP technically consists of three separate agreements:  an Upper Basin DCP among Colorado, Utah, New Mexico and Wyoming; a Lower Basin DCP among California, Nevada and Arizona; and a “Companion Agreement” under which the Upper and Lower Basins each collectively endorse the plans of the other.

The Upper Basin DCP aims to preserve critical elevation at Lake Powell by authorizing:

• a program of coordinated releases from upstream federal reservoirs, and
• “free” water storage in Lake Powell for the sole purpose of Upper Basin compact compliance, provided that each of the Upper Basin states implements voluntary “demand management” programs before they access such storage space.

The Lower Basin DCP:

• requires Arizona, California and Nevada to contribute (conserve) additional water to Lake Mead storage should the reservoir reach specified elevations, and
• creates additional flexibility with Intentionally Created Surplus (ICS) water stored by various water users to incentivize additional voluntary conservation of water to be stored in Lake Mead, and the ICS accounts operate like a water bank.

The hardest-won elements of the DCP were perhaps those outside of the plan itself.  Both Arizona and California resolved purely intrastate disputes about exactly who within each state would be responsible to conserve water and meet each state’s required contributions to Lake Mead under the plan.  For Arizona’s part, the state passed an historic bill to implement its own intrastate drought contingency plan, so it had authority to sign the DCP.  Arizona’s plan focuses on conservation by many state water users and providing funding to improve water use efficiencies, spreading economic burdens and protecting agricultural interests.  In southern California, three Colorado River water districts, Metropolitan Water District, Coachella Valley Irrigation District and Palo Verde Irrigation District, agreed to respective water-use reductions.  The Imperial Irrigation District (IID) decided against participating in the DCP based on its concern that the agreements did not include federal funding for cleanup of southern California’s Salton Sea.  The DCP has a neutral/non-effect on the Salton Sea, but IID believes more should be done.

Passage of the DCP is a major milestone, but only a temporary finish line, as it expires in 2026.  Given this short time period, the seven basin states will continue to wrangle with their water futures.  Arizona and California’s intrastate commitments to implementation will require significant ongoing effort.  For the Upper Basin states to gain access to the Lake Powell storage space authorized in the DCP, those four states must decide if they will implement “demand management” programs, and Colorado is moving that process forward with a new policy to guide statewide discussion.

Stay tuned.

For questions, contact Ramsey Kropf by email at rkropf@somachlaw.com at Somach Simmons & Dunn’s Colorado office.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.