Deadlines Matter: Upper and Lower Basin DCPs Completed

On May 20^th, representatives from the Colorado River Basin States and the federal government gathered to sign the Upper and Lower Basin Drought Contingency Plans (“DCPs”). The plans, which are designed to protect the river and reduce the risks from ongoing drought conditions, are needed because the once outside chance of a shortage declaration in the Lower Basin has become an inevitable reality.

When the Interim Guidelines were being prepared, there was only a remote (~3%) chance of a shortage declaration. When the Bureau of Reclamation ran the Colorado River System 5-Year Projected Future Conditions in April 2018, the probability of a shortage declaration based on the triggers set forth in the Interim Guidelines had increased to 52% for 2020 and even higher for subsequent years. And when the 24-Month Study was released in August 2018, that probability had increased further to 57% chance of a shortage declaration in 2020. And in January 2019 modeling showed a 69% chance of a shortage declaration in 2020. As Bureau of Reclamation Commissioner Brenda Burman noted in comments at the Colorado River Water Users Association (“CRWUA”) Annual Conference in December 2018, “The hydrology is sobering.” (For more on the risks associated with the declining hydrology, see “Obama Administration’s Objectives for the Colorado River Basin,” JOW December 2015).

The DCPs consistent of five core documents: two in the Upper Basin, two in the Lower Basin, and a companion document that ties the two together.

The Upper Basin DCP does not create a plan; it establishes a framework and process. The two Upper Basin documents include a Drought Response Operations Agreement and Demand Management Agreement. The Drought Response Operations Agreement allows for operational adjustments at the Initial Units of the Colorado River Storage Project to keep the elevation in Lake Powell above 3,525 ft (msl) and a framework for later recovery of water released from Initial Units during drought operations. The Demand Management Agreement provides for storage capacity with the Initial Units and establishes some of the related accounting and limiting factors, such as the combined maximum storage of limit of 500,000 AF, any annual storage limit, apportionment loss to due to evaporation, reductions due to spills, and verification of the actual amount conserved. In a panel discussion at the CRWUA Annual Conference, representatives from the Upper Basin emphasized that the Upper Basin DCP fits within existing law and water and power agreements, is process-oriented, and flexible—so it allows the states to work with their own water users to meet objectives.

The Lower Basin DCP has three key points:

• A commitment to “protect 1020,” meaning efforts will be taken to keep Lake Mead from falling below 1,020 feet, which ensures that water levels stay sufficiently above the level needed for Hoover Dam power generation
• Arizona and Nevada will take cuts sooner—cuts begin when the August projection of January 1 elevation at of Lake Mead is below 1,090 ft (rather the 1,075 ft specified in the Interim Guidelines)
• California will reduce its Colorado River deliveries at the deeper shortage levels.

The triggers noted in the Lower Basin DCP overly the Interim Guidelines providing addition trigger points and additional delivery reductions. (For a table outlining the delivery reductions under the Lower DCP, see “Failure is Not an Option: CRWUA Keynote Panel Discusses the Lower Basin Drought Contingency Plan and Minute 32x,” JOW Winter 2017).

The Lower Basin DCP was under negotiation for six years. While basic terms were publicly announced in 2016, there were sticking points outside of the term of the Lower Basin DCP that prevented approval by all of the entities. Arizona faced difficulty reaching agreement with stakeholders within the state over their in-state implementation plan. And the Imperial Irrigation District (“IID”) in California withheld approval of the DCP pending funding for Salton Sea restoration.

IID’s position on the Salton Sea is understandable. Under an intra-state agreement, California’s delivery reductions at the deeper shortages, which would range from 200,000 AF/year to 350,000 AF/year, depending on the severity of the shortage, would be apportioned among California water users with 8% from Palo Verde Irrigation District, 7% from Coachella Valley Water District, 125,000 AF per year from IID for the first two years in which California has to take cuts, and the rest from Metropolitan Water District of Southern California (“Metropolitan”). There are claims that IID’s deliveries of Colorado River to San Diego County Water Authority under the long-term lease under the Quantification Settlement Agreement (“QSA”) has reduced the elevation of the Salton Sea.  The data doesn’t bear that out, especially since mitigation water was delivered to the Salton Sea through 2017. The decline in the Salton Sea, however, does track with the conservation efforts that began in the 1990s, so arguably, additional conservation to meet the shortage cutbacks may exacerbate the air quality and the related public health crisis that the Imperial Valley—and Mexicali Valley—are facing. Furthermore, the State of California released a 10-year plan that is Phase 1 of the Salton Sea Management Plan in March 2017, but two years into the 10-year and no action has been taken. As a death knell, IID had pushed for funding for Salton Sea restoration in the Farm Bill, but the bill was signed without that funding. (For more on trends in the decline of the Salton Sea, see “Why Is the Salton Sea Over There?” The Hydrowonk Blog, March 30, 2017. For more on the 10-year plan, see “State Unveils 10-Year Plan to Address Playa Exposure at the Salton Sea,” JOW Spring 2017. For more on the inaction on Salton Sea restoration, see “Salton Sea’s Demise Accelerates in the Face of State Inaction,” The Hydrowonk Blog, April 1, 2019).

In an attempt to push past the sticking points, U.S. Bureau of Reclamation Commission Brenda Burman, speaking at the Colorado River Water Users Association Annual Conference in December 2018 called the Lower Basin water managers to task. She acknowledged the work that had been done but said, “Close isn’t done. Only done will protect the basin.” Burman further stated, “Deadlines matter,” and imposed a January 31, 2019 deadline for completion of the Lower Basin DCP. If Lower Basin States failed to complete the DCP by then, she would publish a notice in the Federal Register asking the other Basin States to make recommendations on how to proceed.

In a panel discussion following Commissioner Burman’s remarks, Arizona Department of Water Resources Director Tom Buschatzke said that he was grateful for the deadline because it provides him with some leverage to go back to his state and let them know that they need to get things resolved because the DCP will happen with or without them. Arizona worked through the sticking points, completed its implementation plan, and on January 31, 2019, passed the necessary legislation to allows the ADWR Director to sign the DCP agreements on the state’s behalf.

Because Arizona still had some in-state issued to iron out, and IID was still holding out, and the DCP was not “completed,” Burman moved forward and publish the notice in the Federal Register, but the states continued their work and presented the DCPs to Congress. Burman then rescinded the notice in the Federal Register. Congress passed the DCP legislation on April 9, 2019, and the President signed it into law on April 16, 2019.

California got past its sticking point when the Metropolitan Water District of Southern California stepped forward and covered IID’s commitment to cutback deliveries during shortages.

“Metropolitan strongly supports finding a sustainable path for the Salton Sea. But we can’t allow something as critical as the DCP to languish while that separate problem is resolved,” Metropolitan General Manager Jeff Kightlinger said. “I applaud our board for stepping up to move this much-awaited agreement across the finish line.”

Execution of the DCPs means not only are the actions outlined in the DCPs in place, but actions that were contingent upon them are also in play, including a water lease from the Gila River Indian Community to Central Arizona Groundwater Replenishment District and additional actions by Mexico. With the execution of the DCPs, a term of Minute 323 known as the Binational Water Scarcity Contingency Plan, is effective. Under that plan Mexico will also cut its deliveries under shortage conditions, specifically:

 

While signing the DCPs provided a moment of celebration in the Southwest, completing agreements is often illusive in the water industry. IID has filed a lawsuit against Metropolitan claiming that when Metropolitan stepped up to cover IID’s delivery reductions, it failed to review the environmental consequences of forgoing deliveries under the California Environmental Quality Act (“CEQA”). Notwithstanding IID’s lawsuit, the DCPs were not designed to be a destination; they are a pathway to the next thing: developing the next set of operational guidelines to replace the Interim Guidelines when they expire in 2026.

 

Written by Marta L. Weismann