Gov. Jared Polis and Becky Mitchell, Colorado’s top Colorado River negotiator, returned from the U.S. capital with no official agreements about how to manage the water supply for 40 million people.
Colorado River states offered conflicting reports about the status of the negotiations over how to manage the Colorado River’s main reservoirs starting this fall. The Department of the Interior called the seven basin state governors to a historic meeting Friday in Washington to try to push the states closer to a joint plan by Feb. 14.
Coming out of Washington, some officials said no firm agreements had been reached on anything. Arizona’s top negotiators said upstream states, like Colorado, seemed to be more willing to budge on long-held positions, like mandatory conservation. Colorado sources close to the negotiations said six of the seven states are at a point where they could possibly agree on a way forward, with Arizona as an outlier.
The states are racing the clock to replace an expiring set of management rules. The next agreement will impact growing cities, massive agricultural industries, hydroelectric power supplies and endangered species for years to come.
Polis, a Democrat, said Colorado arrived ready for hard conversations and offered sacrifices to ensure the long-term viability of the river.
“I always fight to defend our water, whether it’s at the Department of Interior, Congress, or the courtroom,” he said in a prepared statement Friday.
Mitchell said Colorado has offered every tool available, namely making releases from upstream federal reservoirs, including Blue Mesa — a federal reservoir on the Western Slope and the largest reservoir in Colorado — and establishing a voluntary water conservation program.
“As several upper basin governors clearly stated at the meeting, we cannot and will not impose mandatory reductions on our water rights holders to send water downstream,” Mitchell said in a statement Friday.
During a news conference Monday, Arizona’s top negotiator, Tom Buschatzke, said Mitchell’s statement was incongruous with Polis’ position, which he called “more open,” although it did line up with what Mitchell has been saying for months.
Polis denied there was any disagreement between him and his top negotiator.
“That doesn’t sound correct at all,” Polis said in an interview Monday. “I spent quite a bit of time at the meeting explaining why Colorado, and by association the other Upper Basin states, could never agree to mandatory cuts.”
Colorado has clearly put voluntary conservation and cutbacks on the table. There’s a need for federal investment as part of that, Polis said.
Colorado and Arizona have become opposing forces in the debates over how to manage the river and its main reservoirs, Lake Powell and Lake Mead.
Buschatzke and other Arizona water officials held a meeting Monday outlining their concerns with the positions of upstream states, Colorado, New Mexico, Utah and Wyoming, and shoring up support from within Arizona.
“I cannot tell you how grateful I am to have true partners in these efforts, partners who I can trust and count on to be there when it’s time to put up a fight. Because that time is now,” Gov. Katie Hobbs of Arizona, a Democrat, told the Arizona Reconsultation Committee, a group of powerhouses in Arizona water.
All state governors attended the roughly two-hour meeting except Gov. Gavin Newsom, a California Democrat, who said he had a prior family obligation but sent others in his place.
When asked if the Washington meeting fixed the Colorado River’s issues, California’s top negotiator JB Hamby said it was a constructive meeting but there is a significant amount of work that needs to happen in a very short window of time.
“This and next week are critical, and reaching an agreement will take constructive effort from everyone at the table,” he said in an email statement.
Promising and unacceptable ideas
The states are aiming for at least a conceptual agreement by Feb. 14, the next deadline set by the Bureau of Reclamation, if they can’t agree on a full, detailed proposal, according to Arizona officials.
For two years, the seven basin states — plus tribal nations and environmental, agricultural and industrial groups — have been working through disagreements, coming up with ideas and shooting them down.
Buschatzke talked about a short-term deal that might last five years or so. It would give Upper Basin states — Colorado, New Mexico, Utah and Wyoming ‚ time to build conservation programs. Lower Basin states — Arizona, California and Nevada — would also have time to adapt to new water cuts, he said.
Stephen Roe Lewis, governor of the Gila River Indian Community south of Phoenix, suggested that both basins conserve water and store it in neutral, federal “pools” in larger reservoirs — like a bank account within a bank account. That way they could release the water when needed or keep it to help avoid critically low reservoir levels, he said.
Buschatzke on Monday said it was a promising option, and Mitchell said last week she was open to similar ideas. Environmental groups have also pushed for conservation “pool” concepts.
The Upper Basin can’t cause the river’s flow to fall below a certain amount of water over a 10-year period. (Lower Basin lawyers argue this is an obligation to send water. Upper Basin lawyers say climate change, not upstream water use, is causing the low flows).
Legally, if the four upstream states don’t deliver enough, the Lower Basin could try to force them to deliver under the 1922 Colorado River Compact.
“What the Upper Basin clearly wants — and this is probably what they want more than anything in a deal — is for us to waive … our compact claims against them,” Buschatzke said.
He’s open to that, but it would depend on upstream states actions. For two years, the Lower Basin has pushed for upstream states, like Colorado, to agree to mandatory water conservation or cuts in the basin’s driest years.
“The more you do, maybe the bigger and stronger waiver we can give you,” he said.
Even as state officials look for workarounds, they’re warning of the increasing risk of lawsuits that could push the fate of the basin in the hands of the U.S. Supreme Court — an outcome that states say they do not want.
Phil Weiser, Colorado’s attorney general who is running for governor, said if the states cannot agree on a cooperative plan, litigation is the alternative.
Weiser has been bolstering the state’s legal team because of the potential for legal battles over water, both over Colorado River water and other river basins (like a fight with Nebraska over the South Platte River).
Arizona has also put millions of dollars in its legal war chest.
“We can’t be afraid of the possibility that we need to defend our rights, and if it comes to that, Colorado is not going to be a sucker,” Weiser told Colorado Water Conference attendees in Aurora on Wednesday. “We are going to defend our rights.”