After more than seven months of fruitless negotiating over how to slash Colorado River water use, the seven river basin statesβ officials will now talk some more.
But while water officials for both Arizona and its fellow basin states and their adversary, California, express hopes of finding a negotiated settlement, many outside water experts are a lot less optimistic.
Representatives of the Lower River Basin states of Arizona, Nevada and California say theyβll keep talking to try to resolve the major differences between competing proposals submitted last week, one by California and the other by all six other basin states including the Upper Basin of Colorado, New Mexico, Utah and Wyoming.
The U.S. Bureau of Reclamation is likely to keep talking with state officials as the agency analyzes the proposals. The bureau plans to release a draft environmental statement by March or April and adopt a final plan by August.
The state officials say they still hope to avoid having the bureau impose a solution, or going to court.
βWe finished the first quarter. We didnβt reach agreement after the first quarter, but most of the game is still left,β said Bill Hasencamp, Colorado River program manager for Southern Californiaβs Metropolitan Water District, adding, βItβs Super Bowl season and the Super Bowl is in Arizona.β
For the last round of seven-state talks, βwe went to Denver last week with the goal of reaching a seven-state consensus; it was a bitter pill to swallow that we didnβt do that,β he said.
State officials will continue βto try to close the gap as much as we can,β said Arizona Department of Water Resources Director Tom Buschatzke. βWe may get all the way there. We may not. We should never be predisposed to a particular outcome. You never know what can be a catalyst for success.β
But only three of 10 outside experts interviewed by the Arizona Daily Star said they believe the states can settle their differences without litigation.
Four said said they think litigation is likely or will be difficult to avoid. Three others said they werenβt sure β β50-50, could go either way,β said one, University of New Mexico water researcher John Fleck.
βMy hunch is litigation because there are such consequential interests at stake,β said James Salzman, an environmental law professor at UCLA and the University of California at Santa Barbara. βWe are currently in a game of chicken, waiting on California and the federal government to make their next move. If that results in everyone being content, then litigation is unnecessary. Iβm an optimist, but the path to that seems narrow indeed.β
While thereβs always hope the two sides can reach a settlement, their heavily conflicting proposals donβt suggest theyβre close, said Sarah Porter, director of Arizona State Universityβs Kyl Center for Water Policy. Even a seven-state agreement wouldnβt rule out litigation, because that doesnβt mean all the water users in the states would agree to it, Porter said.
An irrigation district operating along the river may not go along with an agreement if it cuts into its historic priority rights for water, she said.
βTheyβll sue, saying you have to follow the priority system,β Porter said. βI can even imagine cities bringing emergency actions to say that somehow public health and safety for their residents overridesβ higher priority water rights.
But history has shown the states will do all they can to avoid litigation, said David Wegner, a retired Bureau of Reclamation engineer and a National Academy of Science board member who lives in Tucson. βIt is better to be in a room negotiating with your fellow water buffaloes than to have to depend upon a judge to make a decision.
βThese folks know the consequences of not being able to work together. The collective power, value and long-term sustainability of the Colorado River Basin is more important than fighting. Will they push and shove and bluster and threaten? Absolutely,β Wegner said. βThis is a chess game on at least three levels β that is where the power of talking and dialogue and yes, data and science, play important roles.β
Sharon Megdal, director of the University of Arizona Water Resources Research Center, said she thinks the odds of avoiding court are good.
βThis is too big to fail. Itβs like the banks. We canβt fail. We have to face up to reality and get into some equilibrium (between water use and supply) and itβs going to involve something different than what weβve been doing,β Megdal said.
Obstacles to settlement
The problem is that California is poles apart from the six other basin states in how to achieve goals for the river.
They all want to keep Lakes Mead and Powell from falling below 1,000 feet and 3,500 feet, respectively.
The proposals aim to save almost an identical amount of water β nearly 2 million acre-feet beyond 1.375 million the states committed to saving in previous agreements. To put that figure in context, the Central Arizona Project delivers about a million acre-feet of river water a year.
All state officials agree the reservoirs could be virtually useless in a few years without quick action to stem the gap between water supply and demand. Both proposals seek computer modeling from Reclamation to analyze their impacts on the river and the general environment.
βThatβs amazing progress from last summer, when none of those things were agreed to,β said John Entsminger, the Southern Nevada Water Authorityβs general manager.
But the six states besides California want to achieve most water use curbs by determining how much each Lower Basin state and Mexico contributes to evaporation, seepage and other water losses. Such calculations have only been done for the Upper Basin states.
That proposal sticks California with the largest share of water cuts, since California controls the largest share of river water.
The six-state proposal βgives us room to keep talking to California, to try to come up with something. It also could end up that California could adopt the six-state proposal; it leaves several different paths forward,β Buschatzke said. βItβs going to be difficult to come up with an agreement with California. Iβm committed to trying my best to make this happen.
βPerhaps when and if Reclamation shares its alternative, that can be a catalyst,β he added. βTheir draft EIS (Environmental Impact Statement), when itβs published ... that could be a catalyst.β
California says the evaporation-counting method would overturn a centuryβs worth of river water rights that have been treated as precedent-setting. Its proposal bases many of its water use cuts on those historic priorities, determined by laws, regulations, court actions and other legal tools that comprise the Law of the River.
This method clearly favors California, whose farmers along the river have water rights dating back a century or more. By contrast, the 336-mile-long Central Arizona Project canal was authorized barely 50 years ago β with a provision giving California first priority to river water during shortages.
βFor over 20 years, Metropolitan (Water District) has met the challenge of reducing our use of Colorado River water, and we are committed to doing more now,β said its general manager Adel Hagekhalil. βBut we must do it in a way that does not harm half of the people who rely on the river β the 19 million people of Southern California.β
Having the bureau do computer modeling of the impacts can give the states space to negotiate an acceptable solution, Hasencamp said.
When a draft environmental report comes out, βThe hope is the seven states can come together, use maybe parts of the six-state proposal, parts of the California proposal and parts of the Reclamation proposal to build a preferred alternative,β he said.
Opportunities for compromise
Elizabeth Koebele, a University of Nevada-Reno political science professor, sees a lot of possibility for compromise despite the distance separating the states.
βI think having numbers on the table is more helpful than having to guess what the other side may propose in the future,β Koebele said. βWe actually have something concrete to negotiate from ... Everyone seems to realize that thereβs a lot of room for discussions, changes in position. Those aspects make me feel optimistic.β
A possible step on the road to compromise is deciding how far the reservoirs must fall before some of the steepest cuts in water deliveries occur, Fleck said.
The six-state proposal starts with a 1.5 million acre-foot annual cut when Lake Mead drops below 1,090 feet, a level it reached more than a decade ago. Californiaβs proposal doesnβt cut any water use at Mead beyond the first million acre-feet a year until it falls to 1,025 feet. The cuts donβt reach 1.5 million acre-feet until Mead falls below 1,015 feet.
βThereβs a middle ground between these two positions,β Fleck said.
Evaporation tougher to solve
The matter of counting evaporation losses is much stickier.
The Southern Nevada Water Authority used computer modeling to estimate the Lower Basin, below Glen Canyon Dam, loses about 10% of its historical water supply to evaporation, seepage and other causes.
The authority did this analysis so it would science-based, tied to the amount of water actually leaving the system, Entsminger said. βThis is physical reality. Whatever solution we come up with should be reality based.β
The Bureau of Reclamation has avoided dealing with this issue since 1956 when it built Glen Canyon Dam, Wegner noted.
βIf the (Reclamation) commissioner wanted to get hardball about it, she should just do it and apportion the lossses. Would California be pissed? Yeah,β Wegner said of Commissioner Camille Touton. βOf all the states, the one with the biggest room to give up water, itβs California.
βItβs just weβre in a new paradigm now in how they manage a diminishing supply. The 1.5 million is a scientific wild ass guess Nevada came up with. The first thing Interior should do is ask the question, βIs that a reliable number?ββ Wegner said. βIt may be less β it may be more. They should do this through a technical review ... by Interior, or parcel it out to some other group, use the National Academy of Sciences, to give themselves scientific cover.β
But author-researcher Eric Kuhn said heβs not sure compromise can be found on this issue. One outcome of the prolonged Arizona v. California legal dispute over river rights in the 1960s β a dispute that otherwise was won by Arizona β was that a special master in the case classified evaporation as a limitation on the water supply, not on water use β an approach Kuhn said legally favors California and predominantly hurts users with lesser priorities such as Arizona.
βAfter losing Arizona v. Calfornia, itβs going to take a lot of give on Californiaβs partβ to come to compromise on evaporation, said Kuhn, a former Colorado water district general manager.
Fleck agreed that evaporation losses must be accounted for, but added you can cut the same amount of water βwithout calling it an evaporation cut. The bottom line is weβve gotta release less from Lake Mead.
βIn the past weβve avoided these conflicts by letting everyone take more water. We canβt do that anymore. Weβve gotta confront the reality that the allocations are out of whack and fix them.β
Litigation might spur action, some say
Typically, many observers say litigation must be avoided because itβs more divisive than having opposing parties settle issues through collaboration. Thereβs also a concern litigation could seriously delay action on the river as reservoir levels keep falling.
But law professor Rhett Larson and water researcher Kathryn Sorensen, both of Arizona State University, say that in this case, litigation could prove helpful in reaching an ultimate settlement.
βIβm optimistic that litigation will catalyze a settlement mainly because litigation does two things,β Larson said. βIt creates a structure for us to talk to each other and share information. Second, if you donβt come up with an agreement, youβll have to sit there and pay lawyers. The nice thing about litigation, it actually makes it costly to hold out.β
βThe reality is that what we doing now isnβt working. We have two proposals, fairly far apart. We canβt keep doing the same thing over and over again, having deadlnes go by without consequences.β
Litigation doesnβt mean the parties have all failed, added Sorensen, a senior research fellow at the Kyl Center.
βItβs another chapter; another opportunity for continued dialogue. Sometimes when you enter into litigation, the stakes get higher,β she said. βThat can really help people focus on the points that are most worth fighting for, and the ones they can let fall by the wayside.β