CAP celebrates 50 years since landmark legislation

In this Sept. 30, 1968 photo, President Lyndon Johnson signs legislation that creates the Central Arizona Project. With the president from left are Carl Hayden, John Rhodes, Lady Bird Johnson, Stewart and Mo Udall and Roy Elson. PHOTO COURTESY ARIZONA STATE UNIVERSITY LIBRARY
In this Sept. 30, 1968 photo, President Lyndon Johnson signs legislation that creates the Central Arizona Project. With the president are Carl Hayden, John Rhodes, Lady Bird Johnson, Stewart and Mo Udall and Roy Elson. PHOTO COURTESY ARIZONA STATE UNIVERSITY LIBRARY

As the Central Arizona Project celebrates the 50th anniversary of the federal act that authorized the massive water project, Arizona is still locked in complicated conversations about how the state will move forward on water issues.

A half century ago, President Lyndon Johnson signed into law the Colorado River Basin Project Act, which authorized construction of CAP to funnel water from the Colorado River Basin to central Arizona.

During the signing, Johnson called the bill landmark legislation that built on a series of previous conservation measures he had signed. He also proclaimed the signing day, “Carl Hayden Day” after the Arizona senator who played an integral role in furthering the state’s water interests.

“For the millions of Americans west of the Continental Divide, it will provide more water for growing cities; it will provide more water for expanding industries, for the farmers’ crops, and for the ranchers’ cattle,” Johnson said.

But decades-old conversations about the longevity of using the Colorado River Basin as a major water source are still ongoing today as a contingent of seven Western states work to prevent water shortages into the future.

CAP, which is now a 336-mile system of channels, pipelines and pumping stations that move water, was envisioned decades before Johnson gave his approval.

Congress allocated $1.2 million for CAP construction in 1970, but the federal government didn’t release the money until after Arizona created the Central Arizona Water Conservation District. Construction of CAP started five years after the act’s signing on September 30, 1968.

CAP Deputy General Manager Tom McCann said he’s not sure anybody really knows directly where the idea for CAP came from. People had the general idea of taking water from the Colorado River and bringing it to central Arizona for the past 100 years, he said.

During the 1930s and 1940s, both business and agriculture interests were working on plans to bring water from the Colorado River to the heart of the state to spur business and farming developments.

John Harrison, CAP’s construction contract administrator, still has a copy of a CAP project planning report from 1947. He estimates there were somewhere around 20 such planning reports.

“It was actually a long time coming to be,” he said. “It was on the drawing board from the state of Arizona for I don’t know how long.”

Some refer to CAP as, “the last big one” because the federal government hasn’t taken on a water project of that magnitude since.

Passing the Colorado River Basin Act through Congress was no easy task. Multiple attempts to pass the act were torpedoed by the California congressional delegation, which didn’t want its state to face any cuts to its water.

In order to make the deal happen, Arizona agreed to take junior priority status, meaning it would be the first state to take water reductions during a shortage.

McCann called the lengthy process of getting the act passed politics as usual.

“It’s easy to ask yourself today, especially from the Arizona perspective, well, why did Arizona politicians ever go along with that? If you read the things they said at the time, it was very clear that they felt they didn’t really have any alternative,” he said.

But water discussions continue among Arizona and other Western states. Right now, the Lower Basin states of Arizona, Nevada and California and the Upper Basin states of Colorado, New Mexico, Utah and Wyoming are negotiating water conservation agreements as water levels in Lake Mead continue to decline.

The states have released draft agreements to implement drought-contingency plans in the Upper and Lower Basins after the Bureau of Reclamation predicted a shortage in Lake Mead — wherein water levels are projected to fall beneath elevation–1,075 feet above sea level — in 2020.

“To me, the law of the river emerges in an incremental fashion,” McCann said. “You solve what you can solve at the time and you leave other things for the future. This is just one more step in the evolution of water.”

The Western states have water agreements stretching back to the 1922 Colorado River Compact, which divided the states into two basins and distributed 7.5 million acre feet of river water each year per basin. Arizona had concerns about the water allocation and didn’t ratify the compact until 22 years later.

Another reason Arizona politicians agreed to the junior priority status in the Colorado River Act is because they believed they were getting a commitment to augment the flow of the river, McCann said. Augmentation would mean adding more water to the basin through options such as desalination or importing water from elsewhere.

But augmentation efforts are not cheap. And while the federal government studied the idea in 1975 and learned that eventually, there will not be enough water in the river basin to go around, it never started any sort of augmentation project.

While there is still more water available than necessary for current uses, the resources in the Colorado River Basin are finite and Arizona will likely be involved in water conversations for decades to come.

Conservation district wary of governor’s proposals on water

Arizona water bigwigs are meeting with the governor’s staff in an attempt to unify the state’s voice on water issues and come up with new ideas to conserve and manage water.

But the plans have stirred uneasiness among some water stakeholders, who say the meetings themselves and their purposes haven’t been transparent.

The meetings could be consequential for the state’s future water supply, as those involved will analyze current laws, policies and practices to see what should be changed.

As many in the water world like to boast, Arizona’s diligent planning, like the Groundwater Management Act of 1980 and various efforts to keep more water in Lake Mead to stave off any water cuts, brought the state to where it is today: a growing metropolis in the middle of the desert.

Gov. Doug Ducey
Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)

Gov. Doug Ducey intends these water meetings to be a next step, a way to find consensus around future needs and solutions, his spokesman, Daniel Scarpinato, said.

Scarpinato emphasized the stakeholders, led by a “plenary group” of about 20 people from business organizations, utilities, water advocates, cities and districts, will be driving the discussions. Two work groups will focus on the Colorado River and groundwater issues.

“There needs to be leadership on this issue. The Governor’s Office is taking that leadership role,” Scarpinato said.

The top five priorities for the group, led by Ducey Chief of Staff Kirk Adams, include drought contingency plans and a program to keep tribal water in Lake Mead, and how the Central Arizona Project, the state’s canal system that delivers water to Phoenix and Tucson, manages excess supply. Another priority is coming up with a “permanent system conservation program.”

But the approach so far has made figuring out what exactly the meetings are about and what could happen next difficult for some involved.

And they’ve underscored an ongoing power struggle between the Central Arizona Project and the Governor’s Office and its Department of Water Resources over who controls water planning efforts.

None of the meetings have been open to the public, only to those invited to participate as stakeholders. There aren’t any publicly posted agendas or notes about the meetings from the Governor’s Office. Only CAP, which is subject to open meetings laws, has posted any information on the meetings.

Jim Holway
Jim Holway (Photo by Philip A. Fortnam)

Jim Holway, a member of the Central Arizona Water Conservation District board, which manages the Central Arizona Project, said he has more questions than answers at this point.

For instance, the group has suggested it may make some changes to the way the elected CAWCD board is structured, according to a slide show put together by CAP, though it’s not clear specifically how it could be changed. The board members are now elected by voters in the three counties that receive water from CAP.

Additionally, the state wants to make it clear the Arizona Department of Water Resources is the primary entity responsible for conserving water in Lake Mead, an idea that blew up earlier this year when the department said CAP overstated its role in a lawsuit claiming sovereign immunity.

And the state wants CAP to affirm, through legislation, that it doesn’t have sovereign immunity. Plus, the state wants to prohibit CAP from contracting for federal lobbying services and require a financial audit by the state’s auditor general every three years.

Holway, who has worked in the water world for decades, said the process for creating water policy has historically revolved around stakeholders coming together and finding common ground. Water policy is also typically handled within the water community, so having the Governor’s Office so involved is a bit unusual, he said.

“Why is there this effort on the part of the (Ducey) administration to restrict and change the authorities and responsibilities of an elected body?” Holway said.

Warren Tenney
Warren Tenney (Photo by Philip A. Fortnam)

But Warren Tenney, executive director of the Arizona Municipal Water Users Association, said he’s glad there’s been strong leadership from the Governor’s Office. Tenney, who has participated in the water meetings, said ironing out differences will ideally lead to good solutions everyone can get behind.

“Whenever you get together to talk about water issues, it’s going to be challenging and it’s going to be some tough discussions,” Tenney said.

Still, for Holway, some of the CAP-related policy ideas, like financial audits and federal lobbying bans, “kind of look like harassment,” he said.

While CAP staff was invited to the governor’s meetings, no one from the CAWCD board was. Holway said that seems “inappropriate” and “a little strange” to leave out the elected officials tasked with major water roles.

CAP spokeswoman Crystal Thompson said in a statement that water issues are typically “treated in a non-political manner,” where multiple views are considered to achieve compromises that benefit everyone. CAP wants to work with stakeholders to come up with a consensus for future water needs based on facts, she said.

“Unfortunately, recently proposed concepts are inexplicably focused on reducing the authority and responsibility of the CAP and its elected board. We do not understand the basis for these proposals nor do we believe they benefit Arizona water management and policy,” Thompson said.

Doug Miller, the former general counsel for CAWCD, told the board’s executive committee they should prepare for war. He said the list of initiatives aimed at CAWCD is alarming, and he doesn’t understand the reasons behind many of the proposals.

“It seems like a full-scale attack on CAWCD on any number of fronts,” Miller said.

The financial audit requirements are “just silly,” considering CAP already prepares audited financial reports each year, all of which are publicly available on their website, he said. And the federal lobbying ban could cripple the organization’s ability to talk to Congress about whatever it may need, he said.

Miller, who was not invited to be on any of the work groups, attended one of the Colorado River group’s meetings, but he said he was told not to come back. Judging from the meeting he attended, many of the proposals aimed at CAWCD don’t have a justification or rationale, Miller said.

“They’re like a David against Goliath. They’re being faced down by the governor of Arizona and the Arizona Department of Water Resources and a handpicked group of folks that the governor himself has invited to these meetings. That’s a pretty tough battle,” Miller said.

Tom Buschatzke
Tom Buschatzke

Department of Water Resources Director Tom Buschatzke said the various CAP-related measures are “part and parcel” of managing risk at Lake Mead and future water planning. The state would see water cutbacks if Lake Mead reaches 1,075 feet. It’s currently at 1,079 feet.

The issues the Governor’s Office wants to work on all relate to a desire and need for the state to “speak with one voice” on water issues, Buschatzke said.

With so many groups with many different points of views, the meetings provide a way for everyone to speak frankly and freely in order to get a broad perspective on issues, he said. Discussions then move forward based on input from the members, he said.

“The process was set up so folks could have a safe haven, so to speak, to discuss their viewpoints and their issue,” he said.

Scarpinato said the Governor’s Office takes CAP’s concerns seriously, and that’s why the group is included in the water meetings.

“We would not invite (CAP) to the table if we didn’t want to consider them and take them seriously,” Scarpinato said.

He said the meetings will likely go until the end of the year, though they will be shaped by where members take the discussions over the next few months. Some ideas could require legislation, while others could require policy changes at agencies.

Any changes to laws or policies will be “incredibly transparent” because it would be done through the legislative or agency rulemaking process, Scarpinato said.

Council concludes Ducey’s water proposal is likely unconstitutional

The Hoover Dam and Lake Mead
The Hoover Dam and Lake Mead

Arizona legislators “almost certainly” cannot authorize a state agency to “forbear” the use of water from the Colorado River, the legislative body in charge of drafting bills has concluded.

The conclusion of Ken Behringer, counsel for the Arizona Legislative Council, will likely further complicate Gov. Doug Ducey’s efforts to pass a plan aiming to prevent levels in Lake Mead from falling below thresholds that would trigger catastrophic reductions in Arizona’s water allocation.

“The Legislature may not authorize DWR to forbear the use of Colorado River water that is not used by a contractor with the Secretary because these actions infringe on the contract rights of the CAWCD with the Secretary and the rights of the Secretary to control the use of waters in Lake Mead,” Behringer wrote in his memo to Sen. Gail Griffin, R- Hereford, and Rep. Rusty Bowers, R-Mesa, who are leading the water discussions in the Legislature.

The lawyer is referring to the Central Arizona Water Conservation District, which operates the 336-mile long CAP canal, the U.S. Secretary of the Interior, and 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 a right to use it.

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.

“Lawyers disagree on these issues regularly,” Ducey spokesman Daniel Scarpinato said in an email. “On this report, due to attorney-client privilege with the Legislature, Legislative Council did not include the perspective of ADWR.

But in his memo, Behringer said the governor’s proposal “appears to conflict with CAWCD’s exclusive authority to use excess water as it determines.”

It would violate the U.S. Constitution’s Contracts Clause and Supremacy Clause, as well as contravene the U.S. Interior Secretary’s authority, he wrote.

“The forbearance proposal would insert a new party into the contract for management of CAP waters, would change the contractual authority to manage excess waters and would require other contractors with the Secretary to exercise rights to water that they do not have,” he said.

The memo doesn’t prevent legislators from approving the governor’s water agenda. Indeed, the Legislature routinely ignores the advice of its lawyers. But Behringer’s arguments could sway legislators against supporting Ducey’s plan.

Behringer first traced the various Congressional acts and contracts on the use of water from the Colorado River, beginning with the Reclamation Act of 1902. He emphasized two documents that govern Arizona’s water allocation – a 1988 contract between CAWCD and the U.S. Interior Secretary, which, among other things, provided that, when there is unused or “excess” water, CAWCD “shall have the right in its discretion to resell any or all of such water or to use any or all of such water for ground water recharge purposes, including the subsequent recovery and resale of such water, subject to federal law.”

Behringer also pointed to a 2007 stipulation, the result of litigation between CAWCD and the U.S. Department of Interior, that provided CAWCD with the “exclusive right in its discretion to sell or use all excess water for any authorized purpose of the CAP.”

“The water that DWR would forbear falls squarely within excess water that CAWCD is authorized to sell or use,” the counsel wrote.

Behringer noted ADWR’s argument that the 1988 contract says the obligation of the United States to deliver water is subject to the availability of such water under the 1944 Agreement reached between the federal government and Arizona.

But, the lawyer argued, the state has “no inherent rights” under the 1944 Agreement, noting the U.S. Supreme Court also rejected a similar idea in Arizona v. California, the 1952 case over how much Colorado River water each state is legally entitled to.

Behringer said the federal government imposed a condition to implement the Central Arizona Project, and that was for Arizona to create a single agency with the authority to contract for water delivered by the CAP, and to levy a tax as assurance that the state would pay its share of the project’s costs.

The lawyer said the Legislature met this condition by establishing CAWCD.

Bowers and Griffin have introduced identical legislation that would overhaul Arizona’s water policy, but the measures do not include the governor’s forbearance program.

Kirk Adams, the governor’s chief of staff, said this omission is “perhaps the most singular important piece” that the legislation failed to address, adding that the primary reason the governor convened water meetings was Colorado River shortage issues.

Adams said the governor’s office wants to work with Griffin and Bowers to add amendments and make “some major changes.”

Carmen Forman contributed to this report. 

Feds question plan for future of Navajo Generating Station

Navajo Generating Station. (Photo by R.J. Hall via Wikipedia Commons)
Navajo Generating Station. (Photo by R.J. Hall via Wikipedia Commons)

A plan by the operators of the Central Arizona Project to look for new sources of power beyond the coal-fired — and possibly soon-to-close — Navajo Generating Station near Page is raising questions from federal officials.

The move comes as the Central Arizona Water Conservation District, which manages the system, is soliciting bids for electricity needed to pump the water from the Colorado River up through Maricopa, Pinal and Pima counties. District spokeswoman DeEtte Person said the bids on the table includes a solar project and buying power from Salt River Project.

CAWCD board members are set to consider the proposals Thursday.

But in letter late last week to the CAP board, Timothy Petty, assistant secretary for water and science for the Department of Interior, said that his agency, which through the Bureau of Reclamation owns part of the plant, believes a 1968 law “appears to authorize NGS as a source of power for the project.” And that, he wrote, means the board needs to answer some questions.

What gives the federal government some say in all this is that it was Congress that appropriated funds for the Central Arizona Project and the federal portion of the power plant.

Since construction of the power plant, the canal and the pumping stations, the private utilities owners of NGS have concluded it’s no longer financially feasible to keep it operating. State lawmakers earlier this year approved a tax break for the plant in hopes of luring a buyer but none has emerged.

But that, said Petty, still leaves the federal law.

“While the Department (of Interior) recognizes that many circumstances have changed since passage of the 1968 Act … it currently believes that the 1968 Act remains the applicable governing authority and must be addressed in any decision related to future sources of (Central Arizona) Project power,” he wrote.

Person, for her part, is downplaying the bids the CAP is seeking.

“It was our understanding that NGS is closing,” she said.

“It’s still our understanding that NGS is closing because there hasn’t been a buyer that’s come forward,” Person continued. “In the meantime we’ve been looking for power and trying to do our due diligence in lining up the best power sources at the best price to make sure we’re ready for when we don’t have that power anymore.”

But Person said she does not believe her board believes that it is obligated to continue buying electricity from NGS if it can find cheaper power elsewhere.

“There’s certainly plenty of room in the (energy) portfolio should an owner come forward for NGS,” she said. “If there was a new owner, they could certainly put forth their proposal to us for us to buy our power from them.”

NGS provides between 70 and 75 percent for the CAP, with some of the other electricity coming from hydroelectric dams.


Governor’s Office proposes major rewrite of water laws

The Governor’s Office is working to revamp the state’s water laws. In this photo, an irrigation ditch provides water for a farm in the East Valley near Recker and Williams Field roads. (Photo by Ellen O'Brien/Arizona Capitol Times)
The Governor’s Office is working to revamp the state’s water laws. In this photo, an irrigation ditch provides water for a farm in the East Valley near Recker and Williams Field roads. (Photo by Ellen O’Brien/Arizona Capitol Times)

Gov. Doug Ducey’s office is pushing for a spate of changes aimed at altering water laws, from groundwater rules to audits of another public body.

The proposed laws have already rankled some lawmakers and the Central Arizona Project, setting up what could be a major battle during the 2018 legislative session.

Many of the dozen proposals focus on mundane, wonky water details, but have big implications for water management in Arizona’s desert landscape, where sound water policy has allowed the nation’s fifth-largest city to grow.

Ducey’s meetings where the potential new laws are being considered are not open to the public, and neither are the proposed legislative changes. However, documents obtained by the Arizona Capitol Times from multiple sources detail the proposals from the perspective of the state.

The newspaper waded through the water acronyms to figure out what each proposal would do. Here are just some of the major proposed changes:

Drought emergencies

The state wants to be able to declare a drought emergency, allowing for the temporary transporting of groundwater outside of more heavily regulated water locations, called active management areas.

Now, the groundwater code makes it illegal to transport groundwater away from its basin if it’s in an active management area. Legislation would allow the director of the Department of Water Resources to approve requests to transport groundwater in emergencies. Now, DWR can do this, but it’s a matter of session law, not permanent statute.

The issue is particularly acute in rural areas, where extended drought have hurt groundwater-reliant communities and sometimes result in a water shortage and cutbacks to usage, the state says.

The governor would need to declare an emergency due to lack of precipitation or a water shortage, the documents say. The water would have to come from an existing well and would be used for domestic purposes.

Sovereign immunity

The Central Arizona Water Conservation District has claimed in a case before the 9th Circuit that it is entitled to sovereign immunity under the 11th Amendment of the U.S. Constitution, something the state argues is inappropriate.

In the lawsuit brought by a former employee, CAWCD says it can’t be sued for violating the Family and Medical Leave Act because it has sovereign immunity since it is an “arm of the state.” CAWCD says the immunity would only apply in this narrow circumstance, if the court agreed with its defense.

CAWCD also claimed a sovereign immunity defense in a separate case pertaining to Ak-Chin Indian Community water rights earlier this year.

The state wants legislation that says CAWCD is not entitled to sovereign immunity under the U.S. Constitution and that CAWCD is not an arm of the state.

Approval of water plans

The state has alleged CAWCD attempted to sell water to a California water district during 2015 without the approval of the Department of Water Resources. CAWCD says it was considering a water storage deal with the Metropolitan Water District of Southern California, and the state was involved in the discussions at one point.

But the kerfuffle could lead to legislation. The state wants its water agency, the Department of Water Resources, to be the primary negotiator and approver of any water use, storage or conservation plans.

The proposal would require CAWCD to get approval from the department’s director before it starts any interstate negotiating, and the state would need to sign off on any final draft agreement.

Auditor general audits

The state wants CAWCD to go through regular performance audits by the Auditor General’s Office. The proposal would require the auditor to reach out to water stakeholders to identify areas to focus audits on each year.

While CAWCD audits its financial data routinely, the proposed audits would probe more into the organization’s work, looking at expenditures and whether the group is serving its intended purpose.

As part of the audits, the state posits, the auditor could analyze why the CAWCD hired a national law firm to lobby on its behalf in Washington D.C. at a high monthly rate.

Additionally, the proposal says the auditor general would be allowed to attend CAWCD’s executive sessions, which are typically closed to the public.

Water conservation program

A proposed “Colorado River Conservation Program” would set up a way for Arizona water groups to conserve water as a way to stave off potential future cutbacks from Lake Mead as water levels continue to hover close to a cutoff level.

The director of the Department of Water Resources would set up a process to approve water system efficiency projects. The saved water would stay in Lake Mead to boost the water levels and therefore delay any potential cutbacks.

Active management areas

The 1980 Groundwater Management Act set up active management areas in Prescott, Phoenix, Pinal County, Tucson and Santa Cruz County, where there are heavier regulations on groundwater use because of increased reliance on the groundwater supply.

The 1980 legislation said that by 2025, the active management areas in Phoenix, Prescott and Tucson should achieve “safe yield,” meaning there is a long-term balance between the groundwater used each year and the amount of groundwater recharged in the aquifers.

One proposal calls for legislation to make it clear the AMAs for Phoenix, Prescott and Tucson should achieve and maintain safe-yield beyond 2025. And potential legislation would create 10-year management periods for all five AMAs, complete with management plans from the Department of Water Resources. The state also proposes creating a commission made up of groups in the five AMAs to recommend any changes to management plans or goals to DWR.

Groundwater reporting and measuring

The state says there’s a lack of data on how much groundwater is used outside the more heavily regulated AMAs, meaning it’s unclear how much groundwater is actually pumped statewide at any given time.

A proposal calls for measuring and reporting groundwater withdrawals using water-measuring devices instead of estimated numbers in areas where it’s not currently required by other laws.

But some wells would be excluded from the reporting requirements, including those that withdraw less than 10 acre-feet of groundwater per year. And people who take out water for irrigation purposes won’t have to use a water-measuring device or make annual reports if they use the water on their own land that’s less than 10 acres.

Irrigation protection areas

Currently, there is a way for the state to designate a location as an “irrigation non-expansion area” where people can’t start irrigating more than two acres of land unless it was already irrigated for the five years before the designation began.

Laws now allow the DWR director to determine if an area should receive this designation if there’s an insufficient supply of groundwater. But the director can’t look at projected future increases in groundwater withdrawals, including population or agricultural growth, when making the determination.

The issue arose in 2015, when the San Simon Valley area in Cochise and Graham counties sought a designation as an irrigation non-expansion area. The department said there was not enough evidence to designate the area as such, but there were problems in the process based on statutory requirements, the state says, leaving the state open to being sued.

To fix the issues that arose, the state proposes changing language to make sure it’s clear who can irrigate, who can petition for the protected status, if public hearings are required and set a one-year time period for making a determination.

The proposed changes also call for amendments to allow DWR to consider evidence of future projected groundwater withdrawal when making a determination.

No Arizona drought plan in sight as deadline looms

Lake Pleasant April 2, 2014 Photo by Central Arizona Project
Lake Pleasant
April 2, 2014
Photo by Central Arizona Project

After months of drought plan negotiations and as the deadline for Arizona to produce an internal agreement on water reductions nears, the state’s water interests have nothing to show for their efforts yet.

As neighboring states eagerly await details on how Arizona will deal with a potential shortage on the Colorado River, all signs indicate that intrastate water talks, which are largely happening outside the public eye, have become strained in recent weeks.

And time to produce an agreement is running out.

A nearly 40-member board made up of lawmakers, farmers, developers, and representatives from various municipalities, the state and tribes have been locked in intense behind-the-scenes discussions for months on how to divvy up water reductions across the state’s water users for the sake of stabilizing water levels of Lake Mead.

Arizona inking an internal agreement and getting legislative approval for the deal is the final step before the state can sign onto the Drought Contingency Plan with the six other Colorado River basin states and Mexico.

Arizona originally planned on being done with its plan by the end of November. But the state may not meet that self-imposed deadline.

If Arizona water users can’t come to an agreement by the end of the month, then they may have nothing to reveal at the December 13 Colorado River Water Users Association meeting in Las Vegas, where they planned to present Arizona’s drought plan to other Colorado River Basin states.

Sarah Porter, director of the Kyl Center for Water Policy at Arizona State University, said finishing an internal state agreement in time for the association meeting is an aspirational deadline and not a hard deadline.

“It would really be great if Arizona could go and announce that we had reached an agreement on DCP (Drought Contingency Plan), but there isn’t anything hydrological that compels that deadline,” she said. “It’s not as if Lake Mead’s level is suddenly going to plummet.”

The Drought Contingency Plan Steering Committee has what is supposed to be its last meeting scheduled for November 29. The late November meeting between water stakeholders will come after a series of cancelled steering committee meetings because various water users could not come to agreement.

Tom Buschatzke, director of the Department of Water Resources, said he is confidant Arizona will have something to present at the mid-December water users association meeting.

“It’s been a very long haul, but we’re hopefully now in the closing stretches,” he said at a Central Arizona Project board meeting November 15.

A major sticking point for these negotiations is the issue of mitigation.

Mitigation is water-speak for how Arizona water users will be compensated — with water, money or both — for taking reductions in order to build up water levels in Lake Mead.

Water levels in Lake Mead became an urgent concern after the Bureau of Reclamation predicted a shortage could happen at the lake as soon as 2020.

While the steering committee has discussed multiple mitigation plans, at least three have been rejected because the costs were too high, according to a presentation at the recent CAP board meeting.

The mitigation proposals cost between $85 million and $197 million and were a big reason why the steering committee was at an impasse, Suzanne Ticknor, a director of water policy at CAP told the members of the Central Arizona Water Conservation District, CAP’s board.

Gov. Doug Ducey hinted at the high costs in a recent op-ed in the Arizona Capitol Times. Demands for money and water to offset water reductions necessitated by a possible shortage at Lake Mead have grown to unreasonable proportions, he wrote.

“Some recent proposals are so short-sighted and unsustainable that it requires me to remind all participants why we began this process in the first place,” he wrote.

Sen. Lisa Otondo, D-Yuma, also penned a similar letter to members of the steering committee, urging them to set aside their petty interests and learn to compromise in drought plan negotiations.

The catalyst? A communication breakdown amid drought talks earlier this month, Otondo said without providing details because she said pointing fingers could be counter-productive to negotiations.

“There was mistrust and misunderstanding and I hope, I truly hope that reaching out to each other at a sensitive time moves DCP forward,” Otondo said.

Some closely involved in the drought talks, like Gov. Stephen Roe Lewis of the Gila River Indian Community, are confidant the state will complete a drought plan soon.

“We are close,” he said. “We are very close, I believe, to a path forward for the DCP that represents and that respects all of the big tent of stakeholders in Arizona that we are trying to include, that will be affected”

Porter, of the Kyl Center for Water Policy, compared the recent water talks to the heated negotiations before completion of Arizona’s groundbreaking Groundwater Management Act of 1980.

Right up until the act was finalized, water interests were fighting over water rights, talks appeared to be falling apart and it didn’t look as though water stakeholders would come to agreement on any groundwater legislation, she said.

Today’s water talks are an echo of what happened 38 years ago, Porter said.

“We really won’t know until the show’s over,” she said. “There’s still opportunity for compromise.”

But former Gov. Bruce Babbitt, who helped bring parties together on the game-changing groundwater legislation nearly four decades ago, recently issued a warning to Arizona’s water community and the state Legislature.

Complete and pass a drought plan or Arizona will be left behind other Colorado River Basin states, he wrote in an op-ed in The Arizona Republic.

“If the Drought Contingency Plan is not ratified soon California and the other Basin states may decide to proceed without us,” Babbitt wrote. “That could be the beginning of another Colorado River water war.”

Water agency director insists lawmakers can give him forbearance authority

Hoover Dam (National Oceanic and Atmospheric Administration Photo)
Hoover Dam (National Oceanic and Atmospheric Administration Photo)

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.

Water manager’s lobbyist costs under scrutiny, ban possible

A water installation flows downtown Gilbert, Ariz. (Photo by Ellen O'Brien/Arizona Capitol Times)
A water installation flows downtown Gilbert, Ariz. (Photo by Ellen O’Brien/Arizona Capitol Times)

The Central Arizona Project has paid more than $2.5 million for lobbyists in Arizona and Washington D.C. over the past five years, an analysis of the agency’s lobbying contracts shows.

The water canal system’s lobbying costs came under fire from Gov. Doug Ducey’s office as part of meetings he has convened to lay out future plans for water policy.

In early proposals of what the meetings would cover, the Governor’s Office suggested banning Central Arizona Water Conservation District, CAP’s manager, from hiring federal lobbyists. More recent documents from the meetings show lobbying costs could be considered as part of required performance audits from the state’s auditor general.

The $2.5 million on lobbying over five years is a tiny fraction of CAP’s budget, its spokeswoman, Crystal Thompson, said in an email. During those five years, CAP’s overall budget amounted to $1.25 billion, so the lobbying money was only 0.2 percent of the agency’s budget, she pointed out.

From 2012 to 2015, Robert Lynch was CAP’s lobbyist in D.C. at $70,000 per year. CAP also had a contract for federal lobbying services with Bracy, Tucker, Brown and Valanzano from 2010 to 2016 at $20,000 per month.

Now, the law firm Brownstein Hyatt Farber Schreck lobbies for CAP in Washington. Their contract at $210,000 per year ends in May 2018.

At the state level, Don Isaacson has lobbied on CAP’s behalf for 33 years, CAP said. Its current contract, which started in January 2016 and ends in December 2017, is for $182,000.

“His historic knowledge of the legislative history of the CAWCD, and water issues in general, is invaluable and his partner, Cheyenne Walsh, is equally adept,” Thompson said.

But the lobbying costs in general, whatever they may be, are just a distraction, CAP claims.

“Whether or not the CAP utilizes the services of consultants to help understand the politics of the nation’s capitol or the state capitol is not the issue – prolonged drought conditions and the effect on Arizona’s Colorado River allocation is the issue,” Thompson said.

The governor’s water meetings have been punctuated with clashes between CAP and the state, which claims CAP has operated outside its authority on various issues, from water deals to court cases.

The meetings aren’t open to the general public, and the documents and agendas are not publicly posted. There will likely be a host of proposals that become bills in the next legislative session.

CAP has repeatedly said the meetings mark a change in how the state has approached water issues. In the past, though groups had varying interests, there wasn’t a high level of political infighting. Now, the tone has changed.

“CAP respectfully asks Governor Ducey to open up the process he has begun and lead a genuine effort of principled cooperation that has been the hallmark of Arizona gubernatorial leadership for more than five decades,” Thompson said.

The topic of lobbying costs has not been discussed verbally at recent water meetings, CAP and the Department of Water Resources both confirmed.

While cost for lobbyists is a concern for the Governor’s Office, the need for the state to speak with one voice on water issues is the larger point of the water meetings and any proposals that come out of them, Ducey spokesman Daniel Scarpinato said. Lobbying on opposite sides of an issue would run counter to the “speaking with one voice” issue, he said.

But it would be premature to say whether Ducey’s office would pursue a lobbying ban or include lobbying costs in audits at this point, Scarpinato said.

An audit of CAP was initiated by the Legislature last year, and the Governor’s Office is interested in seeing the results, he said.

And there’s also the fact that Ducey issued an executive order last year banning state agencies from hiring contract lobbyists.

“Our office isn’t a huge fan of public dollars paying for lobbyists,” Scarpinato said. “But I think we want to get to a place where entities can do their job, advocate for their users, but also be part of a state effort and a state approach to our water future.”

CAP said it’s necessary to have a federal lobbyist on hand because of the aqueduct system’s ongoing relationship with the federal government. CAP, which was initially formed as part of contract with the U.S. secretary of the Interior, also has a contract with the U.S. Bureau of Reclamation to deliver water, Thompson said. It’s important to have an experienced government affairs group working at the federal level to maintain these relationships, she said.

Thompson also sent several links to other lobbying contracts for public entities both at the state and federal levels in response to questions from the Arizona Capitol Times about its lobbyists. Other contracts show the annual contract prices for CAP aren’t out of the ordinary.

Minutes from a 2016 city of Phoenix meeting show the city would pay $108,000 to Ballard Spahr, $54,000 to the Aarons Company and $90,000 to Axiom Public Affairs (which was recently rebranded Compass Strategies).

Mohave County pays $12,000 to HighGround for government affairs, minutes from a July meeting show.

A price sheet for the City of Tucson shows lobbying expenses should not exceed $222,000 per year.