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On October 10, the Bureau of Reclamation and the seven Colorado River basin states each released final draft agreements to implement Colorado River Upper and Lower Colorado River Basin Drought Contingency Plans (DCP).  Last Tuesday’s release marked a major milestone for drought planning in the Upper Basin (Colorado, New Mexico, Utah and Wyoming), adding to prior efforts principally focused in the Lower Basin (Arizona, California and Nevada) due to Lake Mead’s falling water levels.  Federal legislation will be necessary to effectuate the Upper and Lower Basin Plans, and is tentatively expected to be introduced in 2019.

The primary goal of drought contingency planning in the Upper Basin is to maintain critical water elevations at Lake Powell to ensure continuing hydropower production (a/k/a “power pool elevation”) at Glen Canyon Dam, and to safeguard Upper Basin compliance with its obligations under the Colorado River Compact.  To that end, the Upper Basin DCP documents focus on two of three components (leaving the third component of weather modification to different implementation) as follows:

• A Drought Response Operations Agreement, which creates a planning framework for coordinated operation of upstream reservoirs to protect critical elevation at Lake Powell;
• A Demand Management Storage Agreement, which authorizes Upper Basin states to develop long-term storage of conserved water, up to 500,000 acre-feet annually, to help ensure compact compliance.

The Drought Response Operations Agreement (DROA) establishes the principles and process by which the Upper Basin will develop a plan for coordinated operation of releases from four federal reservoir projects – Glen Canyon Dam (Lake Powell in Utah), Flaming Gorge Dam (Wyoming), Curecanti National Recreation Area (Aspinall Unit with three reservoirs in Colorado), and Navajo Dam (New Mexico).  When hydrology models project that Lake Powell will likely reach 3,525 feet or lower, the Upper Basin will develop a draft operations plan subject to the principles outlined in the DROA.  The draft operations plan will be developed with Basin-wide outreach before it is ultimately finalized and implemented upon approval of the Secretary of Interior.

The Demand Management Storage Agreement does two main things:

1. It secures the Secretary of Interior’s authority to allow, at no charge, long-term storage of water conserved as part of an Upper Basin Demand Management Program, and
2. It sets the requirement that each Upper Basin state develop and approve such a demand management program before the Upper Basin states could access the storage space authorized under the Agreement.  The Demand Management Storage Agreement does not itself mandate, authorize, or guarantee institution of that demand management program.  Rather, it establishes the procedural requirements by which the Upper Colorado River Commission would develop that program, and places a number of conditions upon the water that may be stored pursuant to it. Most notably, the water must:

Be conserved, stored and released for the sole purpose of compact compliance,

Be imported into the Upper Basin or have been consumptively used in the Basin under prior existing rights, and

Be physically available for consumptive use were it not conserved and stored under the program.

Critically, water stored under the Upper Basin DCP would not factor in Lake Powell release obligations under the existing Powell/Mead water sharing rules – specifically, water conserved under the program “shall not be released or cause a different release from Lake Powell than would have otherwise occurred under the 2007 Interim Guidelines.”  Water stored for any demand management program would also be stored using existing capacity at no charge to the Upper Basin states.

At this point, the practical takeaway for water users in the Upper Basin is that there is still opportunity for interested stakeholders to offer input on the specifics of how the Upper Basin Drought Contingency Plan documents and concepts will be finalized.  The agreement released last Tuesday is principally a framework for future planning and the principles under which that will occur, and public outreach is a key element of the future processes prescribed in the present agreement.  You can reach Ramsey Kropf at rkropf@somachlaw.com with questions about this evolving planning process.

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.