Water court referee finds it ‘lawful’ to issue a water right to grow pot

The High Valley Farms marijuana cultivation facility near Basalt.

By Brent Gardner-Smith, Aspen Journalism

GLENWOOD SPRINGS – The water referee in Division 5 Water Court in Glenwood Springs, in a case involving a major marijuana grow operation in the midvalley, has found that Colorado courts can lawfully issue a new water right specifically to grow the plant, even though it’s still illegal to grow pot under federal law.

“The fact that the Controlled Substances Act [CSA] prohibits marijuana use does not make an otherwise lawful appropriation of water under Colorado law illegal,” wrote Susan Ryan, the water referee, in Friday’s order on High Valley Farms, the grow site for Aspen’s Silverpeak Apothecary. “Instead, the validity of the appropriation is governed by Colorado water laws.”

Ryan’s 12-page order found that the actual legal process of the state issuing a water right to grow pot does not conflict with federal law, even though the watering itself of cannabis plants still may be in conflict.

“Establishing a valid appropriation does not require an analysis of the legality of the subsequent use of the water right,” Ryan’s order says. “Because water-right appropriations are governed exclusively by Colorado law, there is no conflicting provision in the CSA.”

With the order, High Valley Farms LLC is able to continue to pursue its application for a new water right to irrigate marijuana, and a novel question under Colorado water law has been answered.

Ryan’s order is the most detailed articulation to date of the state’s position on the question of whether a new water right specifically to irrigate marijuana can be issued, although it applies only to Division 5.

And it’s possible that a water court referee or judge in another water court division could issue a differing opinion should the question arise in other ongoing cases. The Colorado Supreme Court might have to eventually sort out opposing views.

Rhonda Bazil, the Aspen-based water attorney for High Valley Farms, declined to comment on the order, as did Jordan Lewis, the owner of both High Valley Farms and the Silverpeak marijuana store in downtown Aspen.

A graphic from High Valley Farms showing the location of the facility and water sources.

Posing the question

Ryan, the water referee, recently took her position in the water court in Glenwood Springs after working as a water attorney in private practice at a law firm in Denver. She found herself having to rule on a question that had been posed in August 2015 by the preceding water referee, Holly Strablizky, who is also an attorney and now works for Eagle County, and state division engineer Alan Martellaro, who is based in Glenwood.

Strablizky and Matellaro jointly reviewed the 2014 water rights application from High Valley Farms, in which it openly told the water court it was seeking a water right to irrigate up to 3,000 marijuana plants in a facility near Basalt.

After amending its original application, High Valley Farms is now seeking the right to use 9.24 acre-feet of water a year from the Roaring Fork River and an existing well on the site.

After their joint review of the water rights application, the water referee and the division engineer issued a customary “summary of consultation.” In it, they posed a question to the court: Is it OK to issue a water right in Colorado specifically to grow pot, which is still an illegal act under federal law?

The question, however, was not stated in such plain terms.

“The application must explain how the claim for these conditional water rights can be granted in light of the definition of beneficial use as defined [under state law],” the summary of consultation says. “Specifically, beneficial use means the ‘use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.’”

In the summary of consultation, the officials put the word “lawfully” in italics.

An underground water tank, poised to be buried, next to the High Valley Farms grow facility in Basalt in February 2016.

Answering the question

Ryan, in the Friday order, reframed the question from the summary of consultation in more direct terms.

“The issue before the court is whether High Valley can lawfully appropriate water to cultivate marijuana and for use in its greenhouse facilities in light of the federal Controlled Substances Act, which prohibits all marijuana use,” Ryan wrote. “Whether High Valley can seek to appropriate water for marijuana cultivation is a threshold issue in this case. To resolve this issue, the court must determine how ‘lawful’ is used in the water law statutes and if there is a conflict between those statutes and the CSA.”

After digging into the issue, Ryan determined that the “lawfully” in question does not pertain to the end use of the water, but to the legal framework and process that allows the water right itself to be granted.

In explaining her conclusion, she focused on two words, “lawfully made,” and not just on the word “lawfully” that had been emphasized in the summary of consultation.

“In this provision ‘lawfully made’ is closer to the word ‘appropriation’ than the word ‘use,’” Ryan wrote, turning to the “principles of statutory construction,” or the actual words used in a given law, for guidance.

The term “lawfully made,” she concluded, “modifies appropriation, not use.”

“The water court must determine whether the claimed appropriation is lawful, not whether the claimed beneficial use is lawful,” Ryan concluded. “A lawful appropriation of water does not require an analysis of the lawfulness of the subsequent use of that water.”

A view of the High Valley Farms marijuana-growing facility near Basalt. High Valley Farms LLC has applied for a water right specifically to grow marijuana.

No conflict with federal law

Ryan also found there was no conflict between state and federal laws in creating the High Valley Farms water right, which was a key concern in the case.

“There is no federal law that prohibits the appropriation of unappropriated water, if that appropriation is done in compliance with state law or lawfully,” she wrote.

As part of her finding, Ryan cited two other recent decisions by the Colorado Supreme Court that centered on conflicts between Colorado and federal law relating to marijuana, Coats v. Dish Network, LLC, which concerned an employee using medical marijuana, and People v. Crouse, which dealt with law enforcement officers having to return confiscated marijuana.

In both cases, there was a direct conflict between federal and state laws, and federal law prevailed.

“In contrast to the facts in those cases, there is no federal water law that governs the appropriation of water from intrastate water sources,” Ryan wrote. “The regulation and allocation of a state’s internal water resources has been expressly delegated to the states by the federal government. There is no way to determine whether an appropriation is lawful under federal law. Thus, lawful appropriation means lawful under Colorado water law.”

Ryan did recognize the federal government’s ability to overrule Colorado’s pot laws via the federal Supremacy Clause, but said applying federal law to marijuana would pertain to possessing and using marijuana, not to the “lawful appropriation” of water.

“If the federal government decides to enforce the CSA’s provisions, the Supremacy Clause would apply, and federal law trumps Colorado state law allowing the possession and use of marijuana,” Ryan wrote. “However, this does not change the analysis of whether a lawful appropriation is made under Colorado water law.”

A sign, and a statue, outside of the SIlverpeak marijuana store in downtown Aspen.

Will it stand?

Ryan’s order could be challenged and referred to the Division 5 water court judge, James Boyd, by one of the three other parties in the case, each of whom owns property near the High Valley Farm facility: the Roaring Fork Club; WCAT Properties, LLC; and the Spencer D. Armour III 2012 Trust.

But Jason Groves, a water attorney at Patrick, Miller and Noto of Aspen and Basalt, who represents all three opposing parties in the case along with his colleague at the firm, Scott Miller, said their clients are focused on the amount of water proposed by High Valley Farms, and not the marijuana question. As such, they do not plan on challenging the order.

“The current objectors in the case, which we represent, have no concerns about the beneficial use question raised in the summary of consultation,” Groves said. “Our concerns are on the amount of water they propose to use, which is nearly a four-fold increase in use from the existing well on the property.”

It is also possible that another party could file a motion to intervene in the case and contest the referee’s order, but so far no other person or entity has indicated they are inclined to take such action.

Please see related stories:

Sept. 7, 2016
Hazy legal question lingers over rights for Basalt marijuana facility

Feb. 8, 2016
Basalt water case could affect states pot industry

Jan. 2, 2015
Can Colorado approve a water right to grow pot?

Oct. 14, 2014
Silverpeak owner applies for water rights for pot greenhouse near Basalt

Editor’s note: Aspen Journalism, the Aspen Daily News and Coyote Gulch are collaborating on the coverage of rivers and water. The Daily News published this story on Tuesday, Feb. 21, 2017.

Second Circuit: Water transfer ruling in favor of EPA’s rule that trans-basin diversions do not require a federal NPDES permit under the CWA

newyorcitywatersupplysystem

From email from Greg Hobbs:

[Here] is the Second Circuit’s water transfer ruling issued [January 18, 2017] in favor of EPA’s rule that trans-basin diversions do not require a federal NPDES permit under the Clean Water Act..

Colorado has long taken the position that trans-basin diversions do not require such a permit.

Click here to read the decision.

North Sterling irrigators favor lease to BNN Energy

northsterlingreservoir

From The South Platte Sentinel (Jeff Rice):

Roughly half of the landowners attended a meeting Thursday afternoon to get the latest information and when they were finished NSID Executive Director Jim Yahn said they’d signed up enough acreage to make the project a reality.

“We have enough; it’ll be a go,” Yahn said.

The project would lease up to 6,800 acre feet of water to BNN Energy, a subsidiary of Tallgrass Energy. BNN supplies water to Tallgrass’ oil and gas development operations in Weld County. The plan calls for BNN to hook a pipeline directly to one of North Sterling Reservoir’s outlet pipes and pump the water more than 30 miles west into the Tallgrass drilling field.

“It’s a historic thing, I’ve never heard of anyone pumping water directly out of a reservoir,” Yahn said after the meeting.

Estimates given to the landowners Thursday indicate that BNN could pay up to $1,551 an acre foot for the water. While that comes out to over $10 million a year to be distributed among landowners, Yahn said it’s doubtful BNN would ever use that much. More probable estimates were between 5,000 and 6,000 acre feet per year, and final numbers could change slightly before an agreement is signed. Yahn said Thursday he expects that could happen by early March.

“These were some big numbers we put up there, but we wanted (the landowners) to have an idea of how much water they’re giving up,” Yahn said after the meeting. “Some of them could be giving up 10 to 20 percent of their water.”

He emphasized, however, that the “giving up” isn’t permanent. It is only a 10-year lease, and the water needed for BNN does drop after the first five years.

The advantage of the lease agreement being spread over so many landowners, Yahn said, is that farmers can still farm, but will have to manage their irrigation differently.

“We don’t have to dry up any acres,” he said. “Farmers can manage the acres they have, maybe decide to not irrigate their hay for a third cutting, or not to plant some of the least productive land.”

The agreement would be similar to one the irrigation district made with Xcel Energy to provide 3,000 acre feet of water to the Pawnee Power Station as a backup to the company’s regular water right.. He said the district had a change decree done on their water rights in 2006 so 15,000 acre feet of the district’s water could be used for things other than irrigation. He said Xcel has never called for water.

The North Sterling has plenty of water to lease, with two storage decrees, a 1908 storage decree for 69,446 acre feet and a 1915 decree for an additional 11,956 acre feet. Those two together equal 6,812 acre feet more than the reservoir can hold. What that means is that the district can drain that much from the full reservoir and fill it again, even if there are calls on the river, and as long as the North Sterling’s decrees are in priority.

In addition, the district has a 1914 direct flow decree for 460 cubic feet per second, which means that it can run water into its inlet ditch, through the reservoir, and out into the discharge ditch. The lease with BNN would be from the storage decrees only, not from the direct flow decree.

Rio Grande: Special master’s report, “indicates Texas has a strong case against the Land of Enchantment” — Laura Paskus

Elephant Butte Reservoir back in the day nearly full
Elephant Butte Reservoir back in the day nearly full

From NMPoliticalReport (Laura Paskus):

When the special master’s 351-page final report arrived this week, it didn’t vary much from the draft this summer, in which Gregory Grimsal delivered some grim messages to New Mexico.

The exhaustively-researched report details the history of water agreements and disputes along the lower Rio Grande and indicates Texas has a strong case against the Land of Enchantment.

Anticipating that the case would be moving forward, earlier this year New Mexico Attorney General Hector Balderas announced a new joint defense strategy with the state’s two water agencies, the Office of the State Engineer and the Interstate Stream Commission.

The Attorney General’s office was unable to accommodate an interview this week about the new strategy, but office spokesman James Hallinan issued an email statement to NM Political Report.

“Attorney General Balderas is committed to seeking the best result for New Mexico in the decades-long water litigation he inherited from his predecessors, and will work with the joint defense team he formed with New Mexico’s Lower Rio Grande water users and the Office of the State Engineer throughout the legal process,” Hallinan said. “Attorney General Balderas knows that water is the lifeblood of New Mexico’s unique economy and culture, and now that the court has ruled on the preliminary filings, he can push forward his targeted, technical, data-driven strategy towards the most favorable resolution for New Mexico.”

NM Political Report repeatedly requested to speak with someone from the Office of the State Engineer, which is responsible for groundwater permits, or the Interstate Stream Commission, the agency authorized under state law to negotiate compact disputes.

None of those phone calls or emails were returned.

According to Balderas’ office, the three state agencies will work together and also enter into joint defense agreements with New Mexico State University, PNM, the New Mexico Pecan Growers Association, Southern Rio Grande Diversified Crop Farmers Association, the City of Las Cruces and Camino Real Regional Utility Authority.

One entity from the state absent from the list is the Elephant Butte Irrigation District, which sits below the dam in New Mexico, but in the legal world of western water, is considered a part of Texas.

‘No man’s land”

In southern New Mexico today, the Elephant Butte Irrigation District delivers water to about 60,000 acres of fields of crops like pecans, chile and onions.

The district covers more than 90,000 acres, but due to a lingering drought, some of those lands are fallow.

“These are family farms, people who are good stewards of the land,” EBID manager Gary Esslinger told NM Political Report. “It’s a different type of atmosphere here compared with large corporate farms in California that are owned by a bank or an insurance company.”

The irrigation district is different in other ways, too.

To know why, it takes understanding the 1938 Rio Grande Compact and how it divvies up the river’s water among Colorado, New Mexico and Texas.

Annually, New Mexico’s fair share from Colorado is based on streamgage measurements near the state line.

Sending Texas its water is trickier. That’s because New Mexico delivers that water to a reservoir 90 miles north of the state line.

Built by the U.S. Bureau of Reclamation over 100 years ago, Elephant Butte Dam holds back water for what’s called the Rio Grande Project—water the federal government must deliver to farmers in New Mexico and Texas, downstream cities, and Mexico.

Rio Grande: Special Master rules in Texas v. New Mexico

Rio Grande and Pecos River basins
Rio Grande and Pecos River basins

From The Las Cruces Sun-News (Diana Alba Soular):

Special Master Gregory Grimsal declined New Mexico’s request to toss out Texas’ lawsuit — essentially reaffirming draft rulings he issued in mid-2016 that was seen as a blow to New Mexico’s case.

The rulings are not the end of the case. They must now be reviewed by the Supreme Court, attorneys involved in the case said. And the entire matter could end up in a trial if not settled.

After the draft rulings, Grimsal took feedback from the parties involved and could have modified his stances in the document released Thursday. Instead, the final conclusions were the same as in the draft.

An attorney for Las Cruces-based Elephant Butte Irrigation District, which has been at odds with the state of New Mexico over the lawsuit, said the rulings represent a “victory” for the irrigation district. He said they recognize that “EBID members’ surface water rights are senior to all water rights in the basin” and that “the state engineer is obligated to protect that water as EBID delivers that water.”

[…]

The lawsuit arose out of the nature of the 1938 Rio Grande Compact, which apportioned river water among three U.S. states, experts have said. New Mexico’s measuring point for delivering water to Texas was the Elephant Butte Reservoir — roughly 100 miles north of the Texas state line. The river water released from the reservoir serves farmers in New Mexico-based EBID and Texas-based El Paso County Water Improvement District No. 1, as well as in Mexico. The groundwater pumping in that same 100-mile stretch, however, has been the purview of the New Mexico State Engineer’s Office.

Texas has argued New Mexico has over-pumped groundwater, undermining El Paso irrigators’ share of river water. EBID attorneys have said Grimsal’s rulings indicated New Mexico not only was obligated to deliver river water to Elephant Butte Reservoir for downstream users, but also had to protect it from being undermined before reaching the Texas state line.

Hernandez said the special master’s decision from Thursday must now be reviewed by the U.S. Supreme Court, which could take a few different approaches. The court could accept it outright or allow the states involved to make written — or possibly oral — arguments regarding Grimsal’s decision.

If the court affirms the ruling and sends the case back to Grimsal, the case would then be scheduled for a trial, which Grimsal would oversee. The outcome of the trial also would have to be reviewed and signed off upon by the Supreme Court, Hernandez said.

New Mexico Attorney General Hector Balderas announced last week he had met with stakeholders and is hoping to negotiate with Texas toward a resolution of the case.

In addition to declining New Mexico’s motion to dismiss the case, Grimsal on Thursday declined motions by EBID and EPCID No. 1 to become official parties in the case, alongside New Mexico, Texas and Colorado. Also, he specified the federal government couldn’t file a claim against New Mexico based on the 1938 Rio Grande Compact but that the federal government could make an argument against New Mexico under federal reclamation law, according to the document.

City of Aspen to fund ‘community-based’ study of water demands and storage options

A view of the Maroon Bells from near potential damsite of the Maroon Creek Reservoir.
A view of the Maroon Bells from near potential damsite of the Maroon Creek Reservoir.

By Brent Gardner-Smith, Aspen Journalism

ASPEN – The city of Aspen is embarking on a new “community-based” planning effort to find out how much water the city may need in the future and how best to meet that demand.

The process is also to include a review of water storage options in lieu of moving forward with the potential Maroon and Castle reservoirs, for which the city holds conditional water rights.

“We know there is a lot of expertise in the community,” Margaret Medellin, the city’s utilities portfolio manager told the Aspen City Council on Tuesday during a work session. “We want Aspen to know we are listening. We want to engage.”

Local water stakeholders are expected to be interviewed in the coming weeks by consultants hired by the city from Consensus Building Institute in Cambridge, Mass.

Aspen City Manager Steve Barwick advised council members that the overall water-planning effort could cost “several hundred thousand dollars.”

While the city has already signed a number of contracts with various firms for its new planning efforts, it has not yet hired a consultant to specifically determine future water storage needs and to find out whether it might ever really need to build large dams on Castle and Maroon creeks, as it has recently again told the state it intends to do if necessary.

It’s also not clear why officials feel the need to go beyond a “water supply availability” study completed for the city in June 2016 by Wilson Water Group. That study did not identify a clear need for additional storage facilities.

That study found that “the results of this analysis indicate the City can always provide sufficient potable and raw water supplies under these modeled demand and hydrology scenarios. Existing water supply infrastructure and water rights portfolio developed and managed by the City do not appear to be limiting factors in this evaluation.”

It also said “the results of this study indicate that under historical hydrology conditions, water demands through the next 50 years can be met. However, under specific dry climate change scenarios, the City would be required to implement several tools to curtail water demands in order to fulfill the objectives of providing a reliable water supply for potable, raw, and ISF (insteam flow) purposes. All of the water supply alternatives … are either in place currently or the City is actively working towards bringing them online.”

Those “water supply alternatives” in the report include a new water reuse facility and a deep well, but not either of the two large potential reservoirs on Castle and Maroon creeks.

The study concludes by noting that “for the 50-year planning window, under the largest growth and driest climate scenario an average monthly ISF deficit of 3.5 cfs is possible, and could be satisfied by increased well pumping.”

After this week’s work session both David Hornbacher, the city’s director of utilities, and council member Art Daily, said that the new water planning effort would seek to find out how much water storage Aspen might actually need in the future.

“We’re going for a community-based approach and that approach includes looking at the future demands and looking at supply alternatives,” Hornbacher 
said. “What is different from the previous report is that we’re engaging a lot of the members in the community and other interested parties to have a lot of input into some of the ideas.”

Daily, who is also a senior partner at the Holland and Hart law firm in Aspen, said the question of “What do we need?” is “the first thing we’re looking at. Definitely.”

“We don’t know what the future is going to require of us, but let’s make some reasonable assumptions about what we might realistically need in the way of storage,” Daily said. “And what alternatives are there to those two reservoirs?”

“That’s just smart planning and thinking,” Daily also said. “We know that the reservoir options are there. But are there better alternatives that have less impact on critical valleys, critical landscapes, private lands and county lands? I don’t know that we’ve in the past ever really closely analyzed what those options are.”

The city has filed two applications in Division 5 water court to extend its conditional water rights tied to the potential Castle and Maroon creek reservoirs, and 10 parties have filed statements of opposition in the two cases, including Pitkin County.

The water rights date to 1965 and the city has yet to undertake a comprehensive and detailed feasibility study of either potential reservoir.

A view from where a dam would stand to form the potential Maroon Creek Reservoir.
A view from where a dam would stand to form the potential Maroon Creek Reservoir.

‘Not a very desirable location’

“That was pretty creative thinking 40 years ago,” Daily said, referring to the city’s filing for water rights on Castle and Maroon creeks, during an on-the-record interview in council chambers after Tuesday’s work session.

“We know today it is not a very desirable location to flood – Maroon Creek and that whole drainage,” Daily said. “And the lake and the mountains around it. We would hate to touch any of that. There is no question. And I don’t think anybody in the community feels differently about that.

“But I’m glad we still have those conditional rights,” Daily continued. “Let’s not give those up until we develop an alternative strategy.

“This is hard stuff. I don’t know exactly how you go about it. I’m no engineer. But I’m glad we’re embarked on the evaluation, the study. We are going to develop a lot of knowledge we don’t have today. And I’m not saying this is easy or inexpensive or anything but it’s critical to the long-term future of our community.”

One of many wetland areas that would be inundated by the potential Castle Creek Reservoir, for which the city holds conditional water rights. A new water planning effort by the city involves studying aspects of the potential reservoir.
One of many wetland areas that would be inundated by the potential Castle Creek Reservoir, for which the city holds conditional water rights. A new water planning effort by the city involves studying aspects of the potential reservoir.

Considering climate

During Tuesday’s work session, the council members were told by Ashley Perl, the director of the city’s climate-change program, that “Our lack of [water] storage makes us extremely vulnerable to a changing climate.”

After the meeting, Daily said the city still needs more information to determine how vulnerable it may actually be.

“Part of the study is, what are the realistic climate considerations for us?” Daily said. “None of us have the answers. And none of us want to be excitable or over-reactive. I just want to learn all we can.

“The information we have developed to date, it’s thin. It’s not persuasive yet. I think some of our assumptions are becoming more and more supported by what we’re learning.

“If climate change continues, as it seems to be moving, and I don’t buy Trump’s argument that there is no such thing, then we need to prepare a future where we may have less water. It’s that simple. And I think it is our job to prepare for that as best we can.

“The first thing we’re looking at is how much may we need. And making certain assumptions about the climate and what are our water resources going to look like 30, 40 years from now.

“If we don’t plan for it now, as best we can, with whatever how many years it is going to be, we won’t get it done. And we may not get it done in time. So let’s get on it.

“I think that’s what, really, the whole community is supportive of. It’s a question of exactly how you do it and what are we trying to accomplish and what do we need to know? Those are all good questions.”

A map of the potential Maroon Creek Reservoir, based on the city's conditional decree.
A map of the potential Maroon Creek Reservoir, based on the city’s conditional decree.

Listening to opposers

Daily also said he expected the city to listen to the parties who’ve filed statements of opposition in the Castle and Maroon creek water rights cases.

“If they’ve got anything to offer us, I want to hear that too,” Daily said. “And collaboration is critically important in something like this that has such a community impact. You know, we need all the input we can get. We need all the expertise that’s out there. And then we need to develop new expertise.

“It’s a tough process. [But] what I like is, the city – the proponents, and the opponents – they are going to collaborate because they all know that the best possible solution is if everybody’s intellect gets involved at the same time. And ultimately they may continue to oppose and never settle, but let’s find out.

“We’re going to have to work together. And these guys all want a realistic solution and they all want to know, what’s the real assessment of the potential problem?”

A map of the Castle Creek Reservoir, as currently decreed.
A map of the Castle Creek Reservoir, as currently decreed.

Hiring consultants

According to a Jan. 27 staff memo from Medellin, the city has recently entered into a contract with Sopris Engineering of Carbondale to “update surveying for Castle Creek Reservoir.”

It also notes that city staff “met with dam and reservoir expert, Terry Arnold, to review existing geological data.”

The memo does not discuss further study of or surveying the potential Maroon Creek Reservoir, which would be built in view of the Maroon Bells.

The city has also entered into a contract with Headwaters Inc. of Utah “to perform a preliminary review of risks in Aspen’s demand and supply through 2065.”

The city has also hired Deere and Ault Consultants to study the feasibility of storing water in old mines in the Aspen area.

The city staff memo said, “consultants Don Deere and Victor DeWolf met with staff and performed [an] on site investigative tour of local mines” on Jan. 26.

On Tuesday staff included several photos of the consultants walking in a dark local mine as part of their presentation to council.

Editor’s note: Aspen Journalism, the Aspen Daily News, and Coyote Gulch are collaborating on coverage of water and rivers. The Daily News published a shorter version of this story on Feb. 3, 2017.

@wradv report: Arizona’s Water Future: Colorado River Shortage, Innovative Solutions, Living Well With Less

wra-arizonas-water-future-vfinalcover01202017

Here’s the release from Western Resource Advocates:

Western Resources Advocates (WRA) released a new analysis today that shows Central Arizona’s cities, suburban growth in significant areas, and agriculture face substantial cuts in Colorado River water supplies if Lake Mead levels continue to fall. Analysis of data from the Arizona Department of Water Resources (ADWR) and Central Arizona Project (CAP) identifies who could face a reduction of Colorado River supplies, and at what level, within Arizona as Lake Mead levels continue to drop.

The report, Arizona’s Water Future: Colorado River Shortage, Innovative Solutions, Living Well with Less, finds:

  • Phoenix and Tucson suburban growth that uses the Central Arizona Groundwater Replenishment District to prove there is renewable water to cover development will be cut first in a shortage declaration under existing agreements;
  • Four important Central Arizona Irrigation Districts could also lose a substantial portion of their CAP water, including Maricopa Stanfield, Central Arizona, Hohokam, and Harquahala; and
  • Major cities, including Phoenix and Tucson, could face a reduction of Colorado River supplies within this decade if Lake Mead drops below the 1,025’ level.
  • These cuts are looming because Arizona’s ”bank” for 40% of its water supply, Lake Mead, is being drained faster than it can be filled. The U.S. Bureau of Reclamation estimates there is a nearly 50% chance of a federal shortage declaration, that would cut 320,000 acre-feet of Colorado River water deliveries to Arizona, happening as soon as 2018 under business as usual. This level of cuts could harm agriculture, lead to over-drafting of nonrenewable groundwater, reduce hydroelectric power, and provide a lot less water for Arizona cities and the environment.

    “Arizona is facing perhaps its greatest challenge since the settlement of the region and development of modern cities, agriculture, and industry,” said Drew Beckwith, Water Policy Manager, Western Resource Advocates. “The time is now for ADWR and CAP to put in place longer-term solutions that prevent significant water shortages and stand the test of time. One cannot put Band-Aids on an ill patient, while failing to address the underlying illness.”

    Arizona has already taken important action by implementing interim measures to keep more water in Lake Mead to help stave off federally mandated cutbacks of Colorado River water. The Arizona Department of Water Resources has also been working with California, Nevada, and key water users within Arizona on plans to keep Lake Mead from falling to critically low levels.

    Western Resource Advocates and conservation partners at American Rivers and Environmental Defense Fund have developed seven policies and actions to protect groundwater and help Arizona’s agriculture, cities, Indian tribes, economy, and environment thrive in a future with less Colorado River water supplies.

    Three of the seven proposed policies and actions are:

  • Water providers and farmers, with support from ADWR, should adopt next-generation water conservation and efficiencyfor our homes, business and agriculture.
  • The Central Arizona Project should expand its support of system conservation programs allowing municipalities and other water users to dedicate conserved water to stay in Lake Mead to prevent water levels from dropping farther.
  • Water providers, cities and agriculture, with support from CAP and ADWR, should increase the number of innovative water sharing arrangements between themselves,like the Phoenix-Tucson water sharing agreement.
  • “System Conservation Programs have proven to be a great success along the Colorado River, putting more water into Lake Mead and keeping the lake from falling to drastically low levels,” said Jeff Odefey, Director, Clean Water Supply, American Rivers. “Innovative water sharing agreements, like that between Phoenix and Tucson, are an ideal example other water interests should adopt, demonstrating the collaboration and flexibility we will need to stabilize Lake Mead levels for the long term.”

    “We are all in this together in the Colorado River basin. ADWR is on the right track with increasing the level of collaboration and proactive actions with all Arizona water stakeholders. Now ADWR and stakeholders need to also adopt longer-term solutions,” said Kevin Moran, Senior Director, Colorado River Program, Environmental Defense Fund. “In the end, the strategy which has served Arizona and the Lower Basin states the most is to focus on collaboration and ongoing water management innovation that benefit both current and future generations.”

    The two-page Arizona’s Water Future Executive Summary is downloadable here and the thirty-page full report is downloadable here.