The Bureau of Reclamation and the seven states that share the Colorado River’s water are preparing to return to the negotiating table to decide the waterway's future as the current guidelines governing drought-related water cuts near their 2026 expiration. 

The seven states in the basin — Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming — have until recently been locked in intense negotiations over how to cut 2 to 4 million acre-feet of their water use on top of their current reductions, which were agreed to in 2007. Longstanding gridlock between the three Lower Basin states — Arizona, California and Nevada — was broken by a preliminary 3 million-acre-foot deal based largely on voluntary reductions, made possible by a last-ditch effort from negotiators from Arizona and California. 

Those states, along with the states in the upper basin, are preparing to begin redrafting the current guidelines governing drought-related water reductions as the threat of long-term drought continues, despite a wet winter bringing some improvements. Reclamation Commissioner Camille Touton said during this year’s annual Colorado Law Conference on Natural Resources at the University of Colorado Boulder that negotiating these new guidelines will be a major task.

“The next steps remain the hardest that we have to take,” Touton warned.

The existing guidelines were found by a Bureau of Reclamation review to be “insufficiently robust to protect reservoir storage,"  according to an agency Federal Register notice,

The recent agreement struck between the lower Colorado River basin states, which still needs to be examined by the agency, builds on the existing guidelines. But it is intended as a bridge to when the guidelines expire in 2026.

Touton said the agency’s goal is to have an initial post-2026 plan ready by the end of 2024.

J.B. Hamby, California’s Colorado River commissioner, said there are several “high level” questions that will be at the forefront of the discussions this year. These include how long the new guidelines will last, how firm they are, and how much flexibility they will incorporate. They can then get into specifics next year, Hamby said.

JB_Hamby.jpegJ.B. Hamby

One of the things that Tom Buschatzke, director of the Arizona Department of Water Resources, believes should be examined as states negotiate a new set of guidelines is the term “beneficial use,” which is meant to guide how water recipients use their allocations. He argued at the conference that some of the current uses that are deemed “beneficial” can be wasteful.

“Can someone in Phoenix, with Colorado River water, water their lawn 24/7, 365?” Buschatzke asked. “My view is no, but when I say that to my folks, it’s just one more set of darts that I pull out of my back every night. That goes [for] agriculture too, though.”

Tightening requirements for what is or is not a “beneficial” use could come with impacts to agricultural users whose uses have typically been approved in the past. Meghan Scott, a water and agriculture lawyer in California and Arizona, said during an agriculture panel at the conference that new restrictions should consider the importance of agriculture in the region, such as the winter vegetables grown in Southern Arizona and California. 

“I think it’s really a question about do we care about having a domestic food supply? And if we do, then I think it follows that you have to deem agriculture to some extent a beneficial use,” she said.

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Alfalfa, another crop grown throughout the basin, may be one target some negotiators eye for potential exclusion under beneficial use. A booming dairy industry in the region has spurred farmers to plant alfalfa for livestock feed, though the practice has become controversial in recent years due to the amount of water it requires. Patrick O’Toole, president of the Family Farm Alliance, decried the idea of redefining alfalfa as a non-beneficial use during the agriculture panel.

“It’s the baseline, it’s the bottom of the food pyramid and yet we’re all of a sudden demonizing alfalfa and, by extension, demonizing farmers,” O’Toole said.

Buschatzke also said negotiators need to take another look at water lost due to evaporation, which currently is not factored into cuts in the lower basin. He said all seven states and the users in those states would need to be willing to make some sacrifices.

“No matter what all the pieces of paper say since 1922, I believe all of those folks in the basin who benefit from the system have to share in protecting the system and lessening the risk,” Buschatzke said, referring to the Colorado River Compact of 1922.

Hamby, California’s Colorado River commissioner, said some things he is looking at include ensuring all seven states meet their obligations under the Colorado River compact. This will mean taking a closer look at how Lakes Powell and Mead are being operated and how much water states in each basin are required to add or take out of these reservoirs. 

“There’s going to need to be a serious set of conversations we’ll work through to be able to ensure that we’re living within our means in the lower basin and be able to also have this conversation with the upper basin about what is due,” Hamby said. “There’s differences of interpretation on both fronts.”

Hamby said the U.S.’s partnership with Mexico also would be at the forefront of negotiators' minds.

Gene Shawcroft, Utah’s Colorado River commissioner, said the next agreement should equip states to handle “an extremely wide range of hydrology” — including both large increases and decreases in water elevation.

“We’ve heard numbers all over the place,” Shawcroft said of water level predictions guiding current cuts. “The river may be here, it may be there. I’m not sure saying the river will be here and it’ll never go lower is a smart thing to do.”

Disagreements between states led to hang-ups in the most recent negotiations over water cuts, though they never led to litigation. Buschatzke, the Arizona negotiator, said he intends to stay at the table for the duration of post-2026 neogiations and work to avoid litigation at “all costs.”

“I don’t see anything that would make us eventually walk away from the table,” Buschatzke said.

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