Water agency director insists lawmakers can give him forbearance authority

The head of the state’s water agency insists that, contrary to the conclusions of a legislative attorney, lawmakers can authorize his department to “forbear” the use of water from the Colorado River.

Lawmakers have given the Arizona Department of Water Resources forbearance authority on three occasions in the last decade or so, said Tom Buschatzke, director of the Arizona Department of Water Resources.

Forbearance is the act of foregoing the withdrawal of water, typically associated with conservation efforts to keep water in Lake Mead, by an entity with the right to use it.

“This issue of the state having no inherent rights under the 1944 contract is a bit astonishing to tell you the truth,” Buschatzke said.

In his memo to Sen. Gail Griffin, R- Hereford, and Rep. Rusty Bowers, R-Mesa, Ken Behringer, counsel for the Arizona Legislative Council, said legislators “almost certainly” cannot to authorize a state agency to forbear the use of water from the Colorado River.

Such an action, he said, would “infringe on the contract rights” of the Central Arizona Water Conservation District, which operates the 336-mile long CAP canal, and the U.S. Secretary of the Interior to control the use of waters in Lake Mead.

But Buschatzke  said lawmakers authorized the ADWR director to forbear the use of water conserved in Lake Mead by California, Nevada and Mexico under what’s called the 2007 Interim Guidelines, and under two agreements – Minute 319 and Minute 323 – made between the United States and Mexico. Among other things, the agreements established ways to conserve Mexico’s water allocation in Lake Mead and spelled out water deliveries when water elevation reaches certain levels in the lake.

“That action by the Legislature to give the director forbearance authority is a clear cut indication that the Legislature can give forbearance authority. They’ve done it on three separate occasions,” he said, citing resolutions lawmakers approved in 2007, 2012 and 2017.

The 2017 joint resolution, which passed unanimously in the Legislature and which Gov. Doug Ducey signed, stated that it is in Arizona’s best interest to “authorize” the ADWR director to “forbear its rights to use a portion of intentionally created surplus water” arising out of projects in Mexico that protect the state’s water interests.

That same resolution said the state, through the ADWR director, may “forbear its rights” to use certain portions of “intentionally created surplus” water through agreements among Arizona, California or Nevada, and Mexico.

The water that was intentionally conserved would have most likely gone to CAWCD, and nobody challenged the Legislature’s actions when it gave the ADWR director forbearance authority, Buschatzke said.

He also said that Arizona law says any agreement made between the ADWR director and the United States or a state or government “involving a sovereign right or claim of this state is not effective unless approved by the Legislature by concurrent resolution.”

“Why would that statute exist … if the state didn’t have inherent rights under the 1944 contract?” he said, adding the other states also wouldn’t have entered into any agreements with Arizona if they didn’t think the state had no authority to act.

He wasn’t at ADWR at that time, but Buschatzke said ADWR and CAWCD also had a “huge disagreement” in 2007 over which entity had the right to forbear water but noted that the two entities reached a compromise.

Under that compromise, CAWCD said it would not use water conserved through the forbearance agreement entered into by ADWR, and the ADWR director would consult with CAWCD “regarding potential adverse effects” on the district before agreeing to any amendment on the forbearance agreement or to any future forbearance agreements.

Finally, Buschatzke said he also disagrees with the council’s argument that the governor’s proposal would “insert” a new party into the contract for management of CAP waters, change the contractual authority to manage excess waters and require other contractors with the U.S. Interior Secretary to exercise “rights to water that they do not have.”

He said under the three occasions in which the Legislature gave forbearance authority to the ADWR director, the state agency wasn’t added into contract with the U.S. Interior Secretary.

Ducey is pushing for a statewide forbearance program, whose aim is to allow Arizona to conserve more water in Lake Mead, something his office argues is “absolutely necessary.”

Under the proposal, entities with rights to use Colorado River water may submit a conservation project to the director of the Arizona Department of Water Resources, who is then vested with the authority to forbear the use of that much volume from the state’s Colorado River water allocation.