Ambiguity, confusion will reign if others assume mantle of authority over water issues from ADWR

Guest Opinion//March 27, 2017

Ambiguity, confusion will reign if others assume mantle of authority over water issues from ADWR

Guest Opinion//March 27, 2017


What might seem to be an obscure lawsuit in federal court has potentially damaging consequences for water management in Arizona.  The case involves the Central Arizona Water Conservation District, which operates the Central Arizona Project, and one of its former employees.  The district alleges it’s not liable to the employee because it has “sovereign immunity,” meaning it can’t be sued by citizens of this state.  But the Arizona Department of Water Resources has filed a “friend of the court” brief challenging that assertion.

Only federal, state and tribal governments enjoy sovereign immunity.  Claiming to be an “arm of the state,” the conservation district asserts that “it, and it alone, serves the essential governmental function of securing, protecting, and delivering Arizona’s Colorado River water to more that 80 percent of the state’s population.” That sweeping misstatement is correctly refuted by the Arizona Department of Water Resources, which is, in fact, the sole state agency created by the Legislature to defend Arizona’s entitlement to Colorado River water.

The district further claims that, if it can’t meet its financial obligations because of payouts to citizens, the state will have “no choice” but to pick up the tab. That is not true. CAP operations are funded by taxes paid by property owners in Maricopa, Pinal and Pima counties, revenues from energy sales, and charges for delivering river water to municipal, industrial, agricultural and Indian contractors. Unlike the department, which is the official state agency, the district receives no funding from the state and the state isn’t obligated to bail out the district from its financial obligations.

Kathleen Ferris

The heart of this conflict boils down to who’s in charge of Arizona’s Colorado River water issues. The district’s important role is to manage CAP infrastructure, move CAP water through its canals, and fulfill its obligations to CAP contractors. But the Arizona Department of Water Resources must take the lead on all major water policy issues.  Ambiguity and confusion will reign if others try to assume the mantle of authority.

A serious case in point is the debate over falling water levels in Lake Mead.

The Colorado River is over-allocated and the 17-year drought has made its sustainability even more tenuous. A coalition of involved parties has been working for over a year on an Arizona plan to keep 1.2 million acre-feet of water in Lake Mead for the next three years to stave off major shortages. But the district, which has constantly warned of catastrophic consequences if Lake Mead water levels keep falling, has just reversed course. After one snowy winter in the Colorado River watershed, the district’s staff now says that there’s a potential risk of “overconserving,” and that we should plan for conservation annually, rather than for the long-term.

That kind of dangerous thinking undermines sound water planning. As ADWR Director Tom Buschatzke told Tony Davis, of the Arizona Daily Star, “I do not believe one year of good hydrology is enough to stop us from seeking to conserve water in the lake.” Phoenix Water Services Director, Kathryn Sorensen, bluntly added, “This is not a game of poker.”

After the barrage of warnings that water levels in Lake Mead are perilously low, this new talk about overconservation is embarrassing. The district needs to stop this mixed messaging and get back on board with the efforts being led by the state.

The district is not an arm of the state, does not have sovereign immunity, and cannot speak for the state on Lake Mead or other Colorado River matters. That’s the role of the Arizona Department of Water Resources. Period.

Kathleen Ferris is former director of Arizona Department of Water Resources and legal counsel of Arizona Municipal Water Users Association 



The views expressed in guest commentaries are those of the author and are not the views of the Arizona Capitol Times.