Environmental & Natural Resources Law
The Wild West: Whiskey Is for Drinking and Water Continues to Be for Fighting: The Drought Contingency Plan
This week was a busy week at the Arizona State legislature. Several bills were dropped in order to meet deadlines placed by the federal government to have agreement on a drought contingency plan “DCP” by January 31, 2019.
The bills that were dropped can be found here:
- HJR 2002 – Colorado river drought contingency plan
- HB 2540 – Pinal groundwater infrastructure fund; appropriation
- HB 2541 – system conservation fund; appropriation
- HB 2542 – groundwater saving facilities storage credits
- HB 2543 – water bank; storage credits; exchanges
- HB 2544 – effluent recharge; credits
- HB 2545 – Amendments; Colorado River drought contingency
There are many moving parts in the DCP and the Bureau of Reclamation is guiding the ultimate resolution that must be achieved among the water users. The drought contingency plan affects not only all of Arizona but also the water supply in several other states. It has been in the negotiation and development stages for several years. In an effort to address ongoing and unprecedented drought conditions in the Colorado River Basin, and in order to further protect the elevation levels in the reduce the Colorado River reservoirs – Lake Powell and Lake Mead – the Colorado River Basin States, along with water entitlement holders in the Lower Basin, have developed a set of draft agreements to implement Drought Contingency Plans (DCPs) in the Upper and Lower Basins. The agreements include an Upper Colorado River Basin Drought Contingency Plan and a Lower Colorado River Basin Drought Contingency Plan.
In December 20, 2018 , the Arizona Department of Water Resources published the following:
Arizona’s participation in the interstate DCP requires a resolution by the Arizona State Legislature authorizing the Director of ADWR to sign the necessary interstate agreements … To facilitate a smooth legislative process, some additional discussion regarding the Implementation Plan is needed. To that end, ADWR and the Central Arizona Water Conservation District (the CAP) are in the process of outlining agreements necessary to turn the Implementation Plan into action. With about six weeks to go, the timing is tight, but all agree it’s “doable.”
Several interstate agreements must be signed to effectuate the DCP. Those agreements include:
Lower Basin DCP (LBDCP)
Parties in Arizona, California and Nevada will sign the LBDCP agreement, which includes a document known as the Lower Basin Drought Contingency Operations. In combination with guidelines adopted in 2007, the LBDCP agreement will control operations in the Lower Basin.
Upper Basin DCP
The Upper Colorado River Commission, which includes representatives of Colorado, New Mexico, Utah and Wyoming, has approved the Upper Basin documents – the Upper Basin Drought Response Operations Agreement and the Upper Basin Demand Management Storage Agreement. This means that, as a group, the Upper Basin states are prepared to sign the DCP.
The “Companion Agreement”
A Companion Agreement will bind the Upper Basin and Lower Basin agreements together.
Federal legislation will be required authorizing the Secretary of the Interior to sign the interstate DCP agreements as well.” Arizona Department of Water Resources, Getting to the Finish Line: What’s next for Colorado River Drought Contingency Planning? (December 20, 2018).
Many industries, communities, municipalities, businesses, farmers, land owners, families and the general well-being of our state will be impacted by the DCP. The impact will be even greater, to the negative, without it.
Snell & Wilmer LLP has been at the frontier of water rights law involving the Colorado since before 1952. In 1952, one of our founding partners, Mark Wilmer, represented the State of Arizona in a complaint in the U.S. Supreme Court requesting that the court apportion the waters of the Colorado River. That case was Arizona v. California and the holdings in that case over decades developed the law of the river for all time. Today, the firm remains a major player in Arizona’s water law community. Arizona v. California was the longest case in U.S. Supreme Court history. It was filed in 1952, and the court’s ruling was announced 11 years later on June 3, 1963. The trial itself lasted more than two years with over 340 witnesses and thousands of exhibits. For almost 70 years we have been involved in assuring that our state and communities have the water we need to continue to make our state prosper. We will continue to monitor not only the legislation that is currently pending, but also the implementation of the DCP and can be available to assist our clients in these efforts.*
* This blog is written in memory of our former managing partner, John Bouma, who has passed on to be with those great ones that have passed on before him; he will always be remembered in the best of ways! John you will always be remembered and our thoughts and prayers are with your family.
