Department of Water Resources | Arizona Capitol Times

Agencies at odds over deal to send AZ water to California during drought

The Central Arizona Project tried to strike a deal to sell water to California for $18 million during the 2015 drought, which the state claims underscores the need for reforms to the water delivery system’s operations.

The topic recently surfaced in meetings commenced by Gov. Doug Ducey to plan for the future of water in the state. Many potential changes to water laws were aimed at the Central Arizona Water Conservation District, which operates CAP.

The unsuccessful 2015 deal with California gives ammunition to the Ducey administration’s efforts to change how CAP operates, providing backup to their claim that the organization needs to be brought in line. And for CAP, it lays bare that the state is building a case to go after a separately elected body.

To the state, what happened in 2015 is indicative of an organization gone rogue and working outside its authority. To CAP, the deal was an innovative way to store water in California, and to characterize it as a sale is irresponsible and politically motivated.

The potential deal – and its subsequent unveiling in the governor’s water meetings – shows the fractures between two of Arizona’s largest water players. It also shows the disagreements between the two over authority and duties that go back multiple years.

“There’s a long history and a pattern here of these things going on,” said Tom Buschatzke, Department of Water Resources director. “There’s always peaks and valleys in relationships between entities.” He said the state is trying to smooth out the bumps now.

CAP calls the Water Department’s claims “political rhetoric” that serve as “a distraction that weakens and divides Arizona water users at the very time Arizona water managers need to work cooperatively to address the very real water issues facing our state,” its spokeswoman Crystal Thompson said in an email.

The state has suggested it may try to alter the way the CAWCD board is elected, require financial and performance audits by the auditor general and prohibit CAP from contracting for federal lobbying services.

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.

THE DEAL

In spring 2015, the Metropolitan Water District of Southern California approached CAP about putting together a water storage deal. Metropolitan serves 19 million people in Los Angeles and San Diego and the surrounding areas.

Documents prepared by CAP for the governor’s water meetings show the deal, which never went through, would have transferred 60,000 acre-feet of Arizona’s allotment at Lake Mead to Metropolitan at a price of about $300 per acre-foot. Metropolitan would return the same amount of water, minus a small amount to account for losses in the delivery process, to Arizona at a future date. An acre-foot is enough water to cover an acre of land, which is roughly the size of a football field, at one foot deep, or about 326,000 gallons.

The $18 million would have been used to cover CAP’s direct and indirect costs related to the deal, as well as build new wells and fix old ones. Some of the money would have gone to the Arizona Water Banking Authority.

The deal could have put Arizona’s water allotment from the Colorado River in jeopardy, Buschatzke claimed. At the time, Lake Mead was near the level that would have triggered cutbacks to users, and taking water out to give to California instead of leaving it in the lake could have spelled disaster, he said.

CAP denies the water deal would have put the state any closer to cutbacks. The 60,000-acre-feet of water was set to be delivered by CAP to the Arizona Water Banking Authority anyway, which is what happened after the deal fell through, according to CAP. CAP and other Arizona entities have worked together to keep more water in the lake to avoid cutbacks.

But for the Department of Water Resources, one line in a legal memo from CAP’s outside counsel, shows what the deal was really about.

“I am not at all sure that one ever avoids the obvious reality that Arizona is, to a greater or lesser degree, selling water to California,” attorney Stuart Somach wrote in a memo to CAP in May 2015.

For Buschatzke, that line says it all.

“It’s mind-boggling to me that anyone could draw a conclusion other than the conclusion that we have drawn, given this document. They’re trying to rewrite history,” Buschatzke said.

Metropolitan intended to use the water in 2015 to help alleviate statewide cutbacks that called on everyone in California to use 25 percent less water, said Bill Hasencamp, the district’s manager of Colorado River resources.

“We would use it to meet our short-term needs during the drought. … It might have sounded like a sale because there was money,” Hasencamp said.

But it wasn’t a sale, not in water resources terms, Hasencamp said. It was an interstate water banking agreement similar to ones Metropolitan has with Nevada, he said. The water would have lessened the drastic effect of the drought on Metropolitan’s water users, and Arizona would have for sure gotten the water back in the future, plus the money Metropolitan paid for the water, he said. Now, as the drought has eased slightly since 2015, the district has more than enough water available in storage to repay the amount Arizona would have given it, he said.

“There’s no reason to think one agency would not honor its agreement,” Hasencamp said. Any suggestion the water wouldn’t be paid back is “almost insulting,” he said.

In fact, Hasencamp noted, Nevada has water stored in Arizona that it expects to get back in the future.

NO LEGAL WAY

But, according to Buschatzke, there’s no legal way CAWCD could have entered into a storage agreement with another state to store water outside Arizona. The state says CAP doesn’t have the legal authority to enter into interstate agreements to store water — only the Arizona Water Banking Authority, which Buschatzke chairs, can do that. Plus, state statutes say any water Arizona stores must be stored in the state itself, not in other locations.

“We gave them the benefit of the doubt with (Metropolitan Water District) and didn’t push the legal ground argument. We let them back off on the policy. But that’s not going to happen again. We will assert the legalities of this,” he said.

The performance audits the state has proposed for CAWCD would make sure the agency doesn’t operate outside its authority, Buschatzke said.

The insinuation that CAP operated outside its legal authority to secretly sell water to California is insulting and inaccurate, according to CAP.

“Anyone claiming (the Central Arizona Project) attempted to negotiate an agreement to transfer Arizona water to California is perpetuating a false story to serve ulterior political motives. That’s the only explanation for such irresponsible rhetoric,” CAP’s Thompson said.

The Department of Water Resources was brought into the mix in mid-2015 and discussed the issue with CAP. Some emails in the documents prepared by CAP allude to the department being supportive of the idea, but having questions.

Eventually, CAP backed away from the deal, citing policy reasons. But in the documents CAP prepared, its own employees and representatives seem to acknowledge the appearance of the water deal. In one draft of potential deals, one of the “cons” to the storage deal is risking the “optics” of selling unused Arizona water to California.

Thompson said California authorities reached out to CAP to start a “water storage conversation” that “simply put, could be viewed as transferring water out of Arizona.” After talks with the Department of Water Resources and their own attorney, CAP decided not to move forward because “(CAP) opposes the sale, lease or transfer of Arizona’s Colorado River entitlement outside the State.”

CAP affirmed its policy against transferring, selling or leasing water to outside groups at its meeting this month.

Agencies: Arizona farmers should expect less water in 2022

Shown here are rows of cotton plants in Pinal County. Industrial hemp could soon take the place of cotton because it is now legal to grow in Arizona. The crop is required by law to be below 0.3% tetrahydrocannabinol, or THC, the psychoactive component of marijuana. (Photo by Meg Potter/Cronkite News) — Shown here are rows of cotton plants in Pinal County. Industrial hemp could soon take the place of cotton because it is now legal to grow in Arizona. (Photo by Meg Potter/Cronkite News)

State officials are putting farmers in south-central Arizona on notice that the continuing drought means a “substantial cut” in deliveries of Colorado River water is expected next year.

A joint statement issued Friday by the state Department of Water Resources and the Central Arizona Project said an expected shortage declaration “will result in a substantial cut to Arizona’s share of the river, with reductions falling largely to central Arizona agricultural users.”

The Central Arizona Project is an aqueduct system that delivers Colorado River water to users in central Arizona and southern Arizona, including farmers, cities and tribes.

A shortage declaration would prompt the additional reduction to take effect under a 2019 drought contingency plan hashed out by the seven states in the river’s basin — Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming — to lessen the effects.

The statement said the current thinking is that Arizona would be expected to reduce its use of river water by a total of 512,000 acre-feet in 2022, up from 192,000 acre-feet currently, but that supplies for cities and tribes are not expected to be affected.

“These reductions are painful, but we are prepared,” the statement said. “As we face the prospect of a hotter and drier future, we are confident that with our long history of successful collaboration among our diverse stakeholders — agriculture, tribes, cities, environment and industry — we will continue to find innovative and effective solutions to sustain Arizona’s Colorado River supply.”

Arizona is entitled to 2.8 million acre-feet of river water. An acre-foot of water is enough water to cover an acre with water one foot deep.

Steve Miller, chairman of the Pinal County Board of Supervisors, told the Casa Grande Dispatch it was unclear how farmers in the region will adapt.

“Will there be less crops grown? Probably,” Miller said. “Whatever happens in the future, there’s constantly new technology or improvements in drought-resistant crops. We have very efficient farmers here in Arizona.”

Casa Grande farmer Nancy Caywood said farms should be very concerned by the prospect of their water allotments being reduced and should pick their crops carefully.

“What is going to happen to farms if they end up going bankrupt?” Caywood said. “It’s a bad situation all over. I’m not seeing selling our land, turning acres of beautiful farmland into solar energy or homes, as a good solution either.”

Arizona must develop new water supplies now

Arizona is at a crossroads. Nearly 40% of Arizona’s annual water uses are supplied by the Colorado River. However, the outlook for Colorado River water availability – and Arizona’s junior allocation, in particular – is deeply concerning.

The Arizona Department of Water Resources (ADWR) has determined that there is insufficient water to support various projects in Central Arizona where development would otherwise naturally occur over the next several years (west Maricopa County and Pinal County). Additional water supplies will be needed to support the growth and economic prosperity we all want for our children and our grandchildren. Arizona must start today.

The present water crunch occurs alongside a historic budget surplus that allowed Arizona to make a substantial investment in water augmentation. In July, Governor Doug Ducey signed a bill directing $1 billion to a water augmentation fund over the next three years. The fund will be administered by the Water Infrastructure Finance Authority of Arizona (WIFA). A minimum of 75% of these dollars must be devoted to projects that import water from outside of Arizona.

The new law does not direct WIFA to implement any particular projects. Instead, WIFA is authorized to select importation projects based on a variety of considerations. WIFA has been vested with significant discretion, and it is critical that WIFA make wise investment decisions.

We must hope that WIFA will resist pressures to invest in stop-gap measures. WIFA should focus on projects to provide direct delivery of desalinated ocean water, likely in partnership with Mexico. The technology is proven. More than 15,000 desalination plants operate today in hundreds of countries, and Israel is on the verge of satisfying approximately 90% of its municipal and industrial water demand through desalination.

The previous desalination concept involved a water exchange with Mexico. Arizona would have helped fund treatment plants to provide desalinated water to users in Mexico. In exchange, Arizona would have received a portion of Mexico’s supply of Colorado River water. Investing billions of dollars in an increased Colorado River allocation is now a questionable strategy. Would that water be physically available on a reliable basis?

Arizona should think bigger. The Gulf of California is Arizona’s closest ocean water source, and Arizona’s partnership with Mexico should include a water pipeline to provide direct delivery of desalinated ocean water to Arizona. This would involve more legal issues and land use complications, and it would be significantly more expensive. However, this solution would provide a significant, long-term infusion of additional water to Arizona. It would be drought-proof, and therefore far more reliable than a Colorado River exchange because the source would be ocean water. An international water pipeline would be a large project, but that’s what’s required to adequately address Arizona’s water shortage.

Sean Hood is a litigator and water lawyer at Fennemore. He chairs Fennemore’s largest practice group, business litigation, and has nearly 20 years of experience advising and litigating on a broad range of water rights issues and business disputes.

Bowers yanks contentious water bill that threatened drought plan

After House Speaker Rusty Bowers created a kerfuffle by pushing a bill that threatened to tank Arizona’s efforts to sign onto a multi-state drought plan and craft a similar intrastate plan, he asked at the last minute for the contentious proposal to be held.

After the committee hearing, Bowers put out a press release saying he will not advance HB 2476 — legislation that angered the Gila River Indian Community, who perceived the bill as a threat to its water rights — presumably meaning the bill is dead for the remainder of the legislative session.

The bill is likely to face a fight if it does come back for a vote. Rep. T.J. Shope, R-Coolidge, said he would be a no ahead of the committee hearing today, leaving Bowers with little room for error on the committee assuming Democrats would be opposed.

Bowers asked for his bill to be held more than two hours into a contentious committee hearing in which numerous farmers gave heartfelt pleas for their water rights. But hearkening back to water rights legislation he supported nearly two decades ago that was later struck down by the Supreme Court, Bowers said he felt like he failed the farmers before.

“I don’t want to let you down twice,” he said. Bowers said he will seek guidance on how to improve the legislation, but did not specify when he intends to bring it back up.

Bowers’ bill angered the Gila River tribe, which threatened to pull out of Arizona’s efforts to sign onto a Drought Contingency Plan in order to protect its water. As part of Arizona’s drought plan to boost water levels in the Colorado River and Lake Mead, the tribe promised to leave 500,000 acre feet of water in the lake between now and 2026.

The spat between Bowers and the tribe was the culmination of age-old disamooregreements over water rights on the Gila River. In essence, the legislative fight between Bowers and the tribal community was a fight between farmers and the Gila River Indian Community.

HB 2476 questioned at what point people, who at one time, had the right to divert water from the river, lose those rights.

Current law gives a “use it or lose it” ultimatum, which stipulates the water rights are forfeited if the water was not used for at least five years. Bowers’ bill sought to repeal that, which would likely affect lawsuits about who can claim water from the upper Gila River. The tribe argues that water belongs to the tribe because others forfeited their water rights.

In committee, Bowers argued the law he sought to repeal is merely a tool for “vengeance” and questioned why the law had not been invoked for years.

He found support in a handful of farmers who spoke to the committee, including Shayne Earven who said the tribal community made the forfeiture law an issue.

“They won’t leave us alone,” he said. “They brought the fight, so we’re gonna fight.”

Gila River Indian Community Gov. Stephen Roe Lewis ahead of the hearing, called Bowers’ HB 2476 a slap in the face to the tribe.

“This has been tried before by your predecessors,” Lewis told Bowers during the committee hearing, adding those efforts were ultimately unsuccessful because they were unconstitutional.

Representatives on the committee today repeatedly invoked Lewis’ own words, asking supportive farmers whether they considered themselves “powerfully connected.”

Rep. Mark Finchem, an Oro Valley Republican who called the forfeiture law “arbitrary” and said it was being used to “smack around” people trying to conserve water, put that question to Lewis.

“I am powerfully connected to our land and our water for over thousands of years. Powerfully connected to our creator,” Lewis responded, noting 16 other states have a similar forfeiture law.

Gov. Doug Ducey entered this legislative session with completion of the DCP as his top goal. But Ducey, who likely could have ended the legislative fight by publicly announcing he would veto Bowers’ bill, stayed on the sidelines of the dispute between Bowers and the tribe.

Lawmakers must evaluate the legislation and make a choice, Hunter Moore, Ducey’s natural resources policy adviser, said Tuesday before the committee hearing.

“It’s not on the governor’s desk. We’re going to leave it up to the Legislature at this point,” he said.

Even with Bowers’ bill out of the way, Arizona still may not complete all the steps of its intrastate drought plan by the March 4 deadline set by federal officials.

In order to complete an intrastate drought plan, various water users must finalize and sign onto 16 agreements between various groups. At the DCP Steering Committee meeting, Central Arizona Project General Manager Ted Cooke said water users are on track to complete approximately half the agreements by March 4.

It’s not clear if that will be enough progress to satisfy Bureau of Reclamation Commissioner Brenda Burman, who previously chided Arizona for not meeting a Jan. 31 DCP deadline because the series of intrastate agreements were not complete.

But the way Cooke and Arizona Department of Water Resources Director Tom Buschatzke see it, Arizona has done its part to sign onto the Lower Basin DCP. In a Feb. 12 letter to Burman, they took issue with her characterization that Arizona is “not done” with the DCP and has until March 4 to finish.

Cooke called March 4 an “arbitrary” deadline.

“It’s the commissioner’s deadline,” he said. “We met our obligation with respect to the interstate agreement on Jan. 31 so it’s not our deadline.”

In the letter to Burman, Cooke and Buschatzke said Arizona would work hard to to complete the intrastate agreements, but not because of any deadline imposed by the federal government.

Cooke said many of the intrastate agreements are complex and take time to properly iron out. But he said he doesn’t expect the agreements to drag out and estimated all would be complete within 60 days.

“While deadlines can be useful to bring things to completion, the imposition of another deadline, March 4, is counterproductive and a potential distraction to completing the intrastate agreements within Arizona,” they wrote in the letter.

If Burman does say Arizona’s intrastate efforts are not enough to consider the lower and upper DCPS complete, it’s unclear what happens next. A 15-day comment period will open on March 4 in which the Department of the Interior will solicit comments from the seven Colorado River basin states on next steps.

Ducey’s office has not yet prepared any recommendations to submit to the federal government, said Moore, Ducey’s policy adviser.

“We’re counting on the fact that we have a path forward, all the parties are working very diligently, we have a reasonable timeframe in which everybody is completing the side agreements,” Moore said.

Editor’s note: This story has been updated to reflect Rep. Bowers’ decision after the hearing not to advance the bill.

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 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, 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.

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.

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.

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.

Ducey gives tribe $30M for water rights

In this Aug. 13, 2021, file photo a buoy rests on the ground at a closed boat ramp on Lake Mead at the Lake Mead National Recreation Area near Boulder City, Nev. The U.S. Bureau of Reclamation released projections Wednesday, Sept. 22, 2021, that indicate an even more troubling outlook for a river that serves millions of people in the U.S. West. The agency recently declared the first-ever shortage on the Colorado River, which means Arizona, Nevada and Mexico won’t get all the water they were allocated next year. (AP Photo/John Locher, File)

Arizona is dropping another $30 million in to buy — or, at least, rent — some water rights to help stave off further drought-related cuts in what the state gets from the Colorado River.

Tom Buschatzke, the director of the Department of Water Resources, said plans are to negotiate with tribes and others who have guaranteed allocations of water to leave it in the river in exchange for cash. That’s on top of $10 million the legislature gave him earlier this year for the same purpose.

But Buschatzke acknowledged that this, coupled with another $30 million that already was given to one tribe years ago to defer some of its water rights for three years, does not solve the fact that decades of unusual drought have left Arizona and other states along the river with less water than they hoped to be able to draw. In fact, he said, what it is mainly designed to do is get the state to 2026 in hopes that there will be bigger — and more permanent — solutions.

That could include a plan to desalinate water from the Sea of Cortez. But aside from the cost — potentially $2,500 an acre foot, or about seventh-tenths of a cent per gallon — there’s also issues ranging from politics to technology.

“And honestly, that kind of project is seven to 10 years away,” Buschatzke told Capitol Media Services, if it happens at all.

There are other options, including what would amount to domestic reuse of treated effluent. But Buschatzke is aware of the “ick factor” in the minds of some.

Tom Buschatzke, director of the Department of Water Resources, speaking to lawmakers in 2019 about the drought contingency plan. PHOTO BY HOWARD FISCHER/CAPITOL MEDIA SERVICES

“We don’t call it ‘toilet to tap,’ ” the water director said. “We call it ‘direct potable reuse.’ ”

All this comes as new projections show that the level of Lake Mead will drop to 1,050.6 feet by the end of next year. And even more alarming is a projection that the lake will hit 1,026 feet in July 2023, forcing even deeper cuts than already planned reductions.

Yet about 70% of the water being used in Arizona goes to agriculture, including crops like cotton, pecans and alfalfa. Buschatzke said getting rid of desert farming is a policy question.

But Gov. Doug Ducey, who does get to make policy along with the legislature, has no interest in looking at such options to cut water use.

“I don’t accept the premise that it’s finite,” said press aide C.J. Karamargin. He said his boss is counting on all that yet-to-be developed technology as an alternative to having to go that route.

That leaves the kind of interim actions that are happening now, like giving tribes and others another $30 million to not use their Colorado River allocation, at least for a while.

Water flows into a canal that feeds farms run by Tempe Farming Co., in Casa Grande, Ariz., Thursday, July 22, 2021. The Colorado River has been a go-to source of water for cities, tribes and farmers in the U.S. West for decades. But climate change, drought and increased demand are taking a toll. The U.S. Bureau of Reclamation is expected to declare the first-ever mandatory cuts from the river for 2022. (AP Photo/Darryl Webb)

These are the latest steps in the drought contingency plan approved two years ago by lawmakers here, officials in other states and the U.S. Bureau of Reclamation, which controls the Colorado River.

In that deal, the seven states and Mexico that all have rights to Colorado River water have all agreed to make cuts in what they draw in a bid designed to restore the lake back to close to 1,090 feet.

But it also means that Arizona needs to reduce its draw from the river by up to 700,000-acre feet between now and 2026, against the state’s current annual pre-drought allocation of 2.8-million-acre feet. An acre foot is about 326,000 gallons of water, considered enough to serve a typical family of two for a year.

Part of that was supposed to be addressed with the first $30 million paid to the Colorado River Indian Community. In exchange, the tribe left 50,000-acre feet of water each year for three years.

That is up, however, at the end of 2022 — about the same time Lake Mead could hit even new lows.

Ducey is using federal Covid relief dollars to provide the new $30 million. But Buschatzke said this isn’t just kicking the can down the road.

“It’s not just trying to buy time and hope the river recovers,” he said. “It’s trying to stabilize the lake levels as we work towards what the next set of guidelines will be.”

Only thing is, things aren’t getting any better, even with the 2019 deal and the arrangements to draw down less. In fact, the lake is now barely above 1,067 feet — with those predictions of further declines in 2023.

“We are seeing that the historic flow of the river is not what we’re seeing in the last 30 years or so,” Buschatzke explained. And even that flow, he said, is 10% or 11% below historic levels.

And there are no answers yet about what happens after 2026, he said.

In this April 16, 2013, file photo, a “bathtub ring” shows the high water mark on Lake Mead near Boulder City, Nev. (AP Photo/Julie Jacobson, File)

So, in the interim, what does $30 million buy — or lease — in water that can be left in the river each year?

“Within Arizona, we are probably targeting a couple of hundred-thousand-acre feet,” he said.

He acknowledged that’s not enough, even as a short-term solution. So Buschatzke said Arizona is working with California and Nevada, the other lower-basin states, to see what they could do to lower their demand, though the director said he has no specific numbers in mind.

That still leaves the question of all the water being used by farms.

The 2019 deal did reduce what farmers get from the Colorado River. But that did not result in a commensurate decrease in farmland, as they were allowed to replace some of what they lost with groundwater — precisely the thing that the Central Arizona Project and the Colorado River water was designed to eliminate.

It hadn’t been thought that would be necessary.

The assumption was that by the time the first cuts in river water came, much of the farmland in Pinal County would have been converted to new home subdivisions. But that didn’t happen after population growth last decade slowed at times to a crawl.

So the farmers kept farming at least some of their land. And Karamargin said his boss sees no need to address any cutbacks in three of the five C’s that define Arizona: cotton, citrus and cattle.

“Right after the C’s, there’s a D,” he said. “And the biggest topic in this D is desalinization,” Karamargin continued, calling it “part of a possible solution.”

Ducey’s position on farming is not new.

In 2019, just weeks after signing the contingency plan for cutting water use, he told Capitol Media Services there’s no need to give up growing cotton in the desert.

“Arizona’s been a proud cotton state in the past,” he said. “And I believe we can be one going into the future as well.”

FILE – In this May 4, 2014 file photo, shows the Sorek desalination plant in Rishon Letzion, Israel. (AP Photo/Dan Balilty, File)

Karamargin said he’s convinced the cost will come down, just as it has for solar and wind energy. And he said the fact that places that are drier than Arizona, like Israel, depend on desalinization shows that it is a realistic option.

As to that toilet-to-tap, or whatever you want to call it, the state is already pursuing that — but very indirectly.

Buschatzke said there is a plan for Arizona and Nevada to pay California to start using its own sewage, now dumped into the Pacific Ocean, for drinking water. In turn, California would leave more of its allocation in the Colorado River, helping stabilize the level of Lake Mead.

He said that Phoenix also has been looking at the technology to make the city water self-sufficient and that Tucson has been talking about the issue for more than a decade.

But Buschatzke said that runs into another problem: demand.

“Twenty years ago, there wasn’t a great hue and cry for reclaimed water to remain in the rivers for the benefit of the riparian habitat, the environment, the critters,” he said. “And that has become more of a value to multiple stakeholders.”

And then there’s the fact that the Palo Verde Nuclear Generating Station west of Phoenix is cooled with treated effluent, much of that coming from Phoenix.

Ducey signs bill to address dwindling water supply

Gov. Doug Ducey signed legislation Wednesday to provide $1.2 billion to fund grandiose projects to find new water for Arizona and smaller ones to conserve what the state already has.

The governor is particularly excited about the idea of the state being involved in construction of a plant to desalinate water, likely from the Sea of Cortez, providing fresh water that can be used for not only domestic use but also for the agriculture industry which consumes 70% of what Arizona now uses.

“We are in the second decade of the worst drought in recorded history,” Ducey said.

Doug Ducey

“We continue to experience shortages on the Colorado River,” he continued. “And the forecasts are not getting better.”

What the new law does is enable Arizona to come up with a new source of water from outside the state. And what that particularly means, he said is “the largest desalination project in history, anywhere around the globe.”

What that also will be is expensive – more than the money in the legislation. But House Speaker Rusty Bowers, R-Mesa, said the state won’t be picking up the entire tab.

“There are already groups, businesses that want to partner with the state,” he said, calling what’s in the legislation “leveraging money” to make the state “a partner in larger operations,” including with Mexico. And there are other options, Bowers said, like finding a way to get the floodwaters in Kansas to places where water is needed, like Arizona.

That, however, then leaves the question of how much more Arizonans may have to pay for water.

Tom Buschatzke, director of the state Department of Water Resources, has put the cost of desalinated water in the neighborhood of $2,500 an acre foot, about 326,000 gallons. That’s the amount of water that, depending on the community, can serve about three homes for a year.

And any new costs would come on top of what’s charged now for delivery.

The governor, however, said he doesn’t believe Arizona water users will be in for sticker shock.

“We’re going to be the big boy of the lower basin states,” he told KTAR on Wednesday.

“Right now we’re the little brother,” Ducey said, with Arizona having the lowest priority to take water out of the Colorado River. “We’re going to have water to sell to other states to supplement and bring out costs down.”

All that, however, is years off. So the legislation also includes more short-term answers – and $200 million specifically set aside for them. And many of them involve doing more with less.

“We have funding to address best management practices in our counties and our cities,” said Rep. Gail Griffin, R-Hereford. That includes everything from recharging rainwater and use of more efficient plumbing fixtures to changing landscape practices to convert to more drought-resistant plants and replacing grass with artificial turf.

“I did that about eight years ago and it still looks great,” she said.

“It’s green, the dogs love it,” Griffin said. “And I haven’t used any water on it.”

And there’s potable water reuse — something that eventually could lead to what has been dubbed “toilet-to-tap,” where effluent is treated to the point that it can go immediately back into the drinking water supply.

“It’s not just one project,” she said. “It’s all of the above.”

But it was only the Democrats who spoke at Wednesday’s press conference where Ducey signed the legislation who mentioned the controversial issue of why Arizona is hotter and dryer.

“Our state is confronted with the reality of climate change,” said Senate Minority Leader Rebecca Rios, D-Phoenix.

That, she said, comes in combination with the fact that the Colorado River has been “over-allocated,” with the agreement on the amount of water each state was entitled to take set half a century ago. Only thing is, the flow of the river now is far below when those agreements were set.

And that already has forced mandatory cutbacks, with future reductions possible to keep Lake Mead from become a “dead pool” with no water flowing over the Hoover Dam.

That rapid decline was noted by the governor who pointed out that he was signing the new legislation in the same location as he signed the 2019 “drought contingency plan.”

That move provided cash to help farmers who would be getting less water from the river to instead construct new wells and water delivery systems. It also paid money to tribes, who have higher priority claims to the river, to reduce their own use to keep more water in the river.

The plan was supposed to take care of water shortages through 2026, complete with some hopes that the drought would abate.

But that hasn’t happened. And Ducey said that the state’s financial surplus provided the opportunity to act now to shore up those supplies.

The governor has a mixed record on the issue of climate change.

In 2015, Ducey said that, after being briefed by experts, he was convinced the climate is changing.

“It’s going to get warmer here,” he said at the time. “What I am skeptical about is what human activity has to do with it.”

By 2019 he was willing to put aside that skepticism. Ducey said it only makes sense that people and what they do are having an impact.

“Humans are part of the earth, the environment and the ecosystem,” he told Capitol Media Services at the time. But the governor has shown no interest in his now nearly eight years in office in changing Arizona laws and regulations to reduce greenhouse gases.

Lawmaker to push bill banning sale of Colorado River rights

This March 26, 2019, file photo, shows a bathtub ring of light minerals showing the high water mark of the reservoir which has shrunk to its lowest point on the Colorado River, as seen from the Hoover Dam, Ariz. Rep. Regina Cobb, R-Kingman said she is going to push legislation next year to prohibit the sale of Colorado River water rights. PHOTO BY RICHARD VOGEL/ASSOCIATED PRESS

As far as Rep. Regina Cobb, R-Kingman, is concerned, she has just begun to fight. Cobb remains steadfast against a deal that allows a farm along the Colorado River to sell millions of gallons of water to the city of Queen Creek. The water would be diverted away from the western Arizona farming community of Cibola in La Paz County

Cobb, the Republican state representative for Legislative District 5, which covers all of La Paz County and the majority of Mohave County, says she plans to press on with her bill to block similar sales in the future. The bill was never heard in committee during this past legislative session, but she’s hoping to change that in 2021. She says she is building a bipartisan coalition that includes representatives from other western counties, including Yuma, which has a large agricultural industry.

In 2018, GSC Farm agreed to sell a portion of its fourth priority Colorado River entitlement rights to Queen Creek. The growing community in the Southeast Valley is looking beyond groundwater resources to sustain future growth.

Queen Creek planned to buy and transfer 2,083-acre-feet, or 678 million gallons, of Colorado River rights. After much protest from western Arizona cities, earlier this month the Arizona Department of Water Resources recommended that Queen Creek get just a little more than half of the water it was asking for. Instead of 678 million gallons of water a year, the town will receive 351 million gallons a year from GSC Farm. The ADWR made the recommendation to the U.S. Bureau of Reclamation, which must get a final approval from the U.S. Department of the Interior.

Cobb says the decision surprised her because it appeared to her that ADWR Director Tom Buschatzke was not going to allow the deal.

“I can’t even tell you how huge this is,” Cobb says. “To begin with we’ve never allowed fourth priority water rights to be sold and now it’s going to go to the highest bidder. Cibola doesn’t benefit from this at all. Each of those down-river communities are going to be losing out if you’ve got a precedent and one person can take that fourth priority water right out of there. Even though it’s only in Cibola, guess what? It affects everybody else on the river community. They’re all being affected by this and it’s a slap in the face.”

In a press release announcing his recommendation, Buschatzke states that in evaluating this application and any future applications, “the department must weigh many competing factors including the beneficial use of the water after the transfer and any potential impacts on the western Arizona communities who rely on the Colorado River.

“In this case a partial transfer allows the town of Queen Creek to meet objectives in the 1980 Groundwater Management Act while avoiding negative impacts for established agricultural economies and growing urban areas in western Arizona,” Buschatzke states.

In 1980, the state passed the Groundwater Management Act for development of any subdivision that covers Phoenix, Pinal County, Tucson and Prescott. To develop a new subdivision a developer has to demonstrate a 100-year supply of water, that they are not going to overdraft groundwater supplies and that the water they take must be replenished, says Sarah Porter, director of the Kyl Center for Water Policy at the Morrison Institute.

While Porter says she understands the need for water to support growth in central Arizona, “by the same token western Arizona communities have the Colorado River running right next to them and they have looked to that as their long-term supply, and they have aspirations for growth too and they don’t want to have central Arizona suck away their water resources.”

Still, she calls Buschatzke’s decision “a very thoughtful approach. He said we need to leave enough water there for the projected development [of western Arizona].”

As for Cobb, along with re-introducing her bill, she plans to go to the Department of the Interior in Washington, D.C., to request that the AWDR’s recommendation not be granted. She adds that she may also go through legal channels.

Of course, with the election looming, Cobb also is preparing for a possible change in the landscape of the Legislature.

“Once we get the make-up of the Legislature, then I’ll start sitting down and figuring out a strategy,” she says. “Whether it’s the Democrats who are in the lead or the Republicans who are in the lead makes a big difference on who’s going to take on the bill. I might not even be the bill’s sponsor. I don’t have to take the lead on it, but I will lead the charge. Somebody has to, right?”

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.”

No end near after 4 decades of water rights litigation

The Colorado River is a major source of water for Arizona. The management of its supply involves numerous stakeholders and agencies. (Photo courtesy of Central Arizona Project)

After 44 years, the adjudication of water rights in Arizona is still far from being resolved, and water policy experts say that resolving these competing claims is essential to providing certainty about water rights.

Two general stream adjudications are currently underway that affect the most populous areas of the state: the Gila River Adjudication in the Maricopa County Superior Court and the Little Colorado River Adjudication in the Apache County Superior Court. The proceedings’ goal is to establish the extent and priority of all water rights for both river systems.

The Gila River alone provides about 20 percent of Arizona’s water, while its tributaries, the Salt and Verde Rivers, provide nearly 40 percent of the water to the Phoenix area through the Salt River Project.

“As we get to this time in our state where we have less extra water … it’s really critically important that we have clarity and certainty about water rights,” said Sarah Porter, director of the ASU Kyl Center for Water Policy.

General stream adjudications are relatively common proceedings in Western states, and states such as Wyoming and Washington only resolved decades-old adjudications in the past five years. In Arizona, however, few cases have been resolved in the past four decades of proceedings, and there’s a lot of work still to be done: there are over 38,000 parties in the Gila Adjudication and over 5,800 parties in the Little Colorado Adjudication.

“A lot of moving slowly is a result of the court process itself and the due process rights of claimants,” said Tom Buschatzke, director of the Department of Water Resources. Nevertheless, “we need to move forward and get that adjudication toward the finish line in a somewhat timely manner.”

Some progress is being made. At the beginning of September in the U.S. Senate, Sen. Jeff Flake and Sen. John McCain introduced S.1770 to finalize the Hualapai Tribe’s water rights on the Gila River, and the bill has been referred to the Committee on Indian Affairs.

Water policy experts emphasized that finally resolving the general stream adjudications will be an important step not just for water managers and water users, but also for business in Arizona.

Real estate agents, corporate site developers, and other economic decision makers “have zero tolerance for uncertainty about water rights,” Porter of ASU said.

Supreme Court sides with developer in water dispute

The Arizona Supreme Court has given the go-ahead to new development in and around Sierra Vista even if it could dry up the San Pedro River — and even if it turns out that the home buyers later end up with nothing but sand coming out of their faucets.

In a ruling with statewide implications, particularly for rural areas, four of the seven justices concluded Thursday that the Department of Water Resources is required only to consider whether developer Castle & Cooke Inc. and the Pueblo del Sol water company it owns have a 100-year supply of water beneath its land where it plans to construct up to 7,000 homes on 2,000 acres, the legal right to the water, and the financial ability to supply it.

More to the point, the majority said the state agency need not consider other potential future claims for the same underground water — in this case, by the federal Bureau of Land Management — or even the possibility that those other claims could end up leaving the development and the people who buy homes there high and, literally, dry.

“Whether the adequate water supply designation process should go further in protecting consumers is a matter for the Legislature,” wrote Justice John Lopez for himself and three colleagues. And he said that the way water laws are crafted “demonstrates the Legislature’s intent to provide only limited protection to consumers and simultaneously encourage development.”

Thursday’s ruling is unlikely to be the last word in whether Castle & Cooke, a private company owned by David Murdock, can construct its Tribute development about five miles from the river and whether his Pueblo del Sol can pump an extra 3,400 acre-feet of water a year — about 1.1 billion gallons — out of the ground for the project.

Robin Silver, one of the plaintiffs in the case, vowed an appeal to federal court. He said that, given Arizona’s laws and the way they’re applied by Arizona courts, that may be the only way to protect the river.

“This is what happens when we live in a state dominated by Republicans, uncaring Republicans,” he said, and “courts that interpret the law to the benefit of developers.”

Rick Coffman, senior vice president for Castle & Cooke, said his firm is “gratified” by the ruling.

But he said more than just this development is at stake. He said outstanding questions about the BLM claims to the water have effectively halted all new development in and around Sierra Vista — and in the whole San Pedro valley — for the last five years.

Arizona law considers groundwater as belonging to whoever owns the property above. That means the owner can withdraw as much as can reasonably be used on the property without “liability for a resulting diminution of another landowner’s water supply.”

The issue here stems from a decision in 1980 by Congress to designate about 36 miles of the San Pedro River basin as a national conservation area. Congress also created a federal water right for the area “in a quantity sufficient to fulfill the purpose” of protecting the riparian area.

Only thing is, the process of determining water rights to the entire Gila basin, which includes the San Pedro, have been going on now for about 40 years. That makes the amount of water to which BLM is entitled “unquantified” at the moment.

Challengers, including the BLM, Silver and Patricia Gerrodette, argued that DWR could not conclude that Pueblo del Sol has the legal right to the water it wants without considering whether it would impair the yet-to-be-adjudicated federal claim. That goes to the hydrological questions of whether taking more water from the aquifer will dry up the San Pedro, one of the few remaining free-flowing rivers in the Southwest.

But Lopez said that development in the area need not be halted while these outstanding issues are resolved.

Thursday’s ruling drew a pair of stinging dissents.

“Essentially, the majority would allow the Arizona Department of Water Resources to ignore the legal inadequacy of a proposed water supply until the problem becomes a reality,” wrote Chief Justice Scott Bales. “This interpretation defeats the adequate water supply’s manifest purpose to proactively protect consumers in Arizona before they purchase property.”

And Bales said there are “hydrologic realities” that pumping groundwater for the new development could diminish the river’s flow and “imperil the riparian system,” meaning BLM’s claim could be found superior to that of the water company. That, he said, requires DWR to evaluate that claim before giving the go-ahead for more pumping.

Lopez disagreed. But he conceded it eventually could turn out there really isn’t enough water in the area for the development if it turns out the riparian area needs some — or all — of that

In fact, attorneys for the water company conceded during the hearing earlier this year that claims to the water could evaporate if the BLM’s demands force it to reduce its pumping and leave the development without sufficient water. They said the company would “`have no problem” letting buyers know that.

“We admonish Pueblo to perform on its promise to be forthright with consumers about the potential impact of BLM’s federal reserved water right on the development’s water supply,” Lopez wrote.

Coffman said the firm will put such a notice into the report developers are required by state law to give to buyers.

“We’ll have to figure out the exact language,” he said. But he does not think that disclosure will dampen sales, pointing out there are many rural areas of the state where there is no requirement to prove a 100-year water supply, only a mandate to disclose that fact to buyers. And he said people buy lots in those areas, too.

In his own dissent, Justice Clint Bolick said his colleagues are “creating a Swiss cheese statute with robust obligation on either side and a hole in the middle.”

He said they claim the statute “provides consumers with vigorous protections against unscrupulous developers.” But Thursday’s ruling, Bolick said, “eviscerates” that law because there is no meaningful analysis that the promised 100-year water supply really will be available for the homeowners.

Bolick also pointed out that if the BLM’s claims are borne out, DWR later can revoke the certificate of assured water supply that allowed Castle & Cooke to build in the first place. But he said that is “cold comfort to homeowners who purchased homes in reliance of that determination,” especially as they then cannot sue the state.

There was no immediate comment from Gov. Doug Ducey who in previous years vetoed legislation specifically designed to allow Castle & Cooke to go ahead with the project despite questions of whether there is sufficient water available.

In his veto messages, he acknowledged concerns by Sen. Gail Griffin, R-Hereford, that the federal government was exercising too much control of the water supply in Cochise County in its bid to ensure the continued flow of water in the San Pedro River. But Ducey said there are greater issues at work.

“While I appreciate the sponsor’s efforts to protect Arizona from federal overreach, I’m concerned that (the two bills) would encourage a patchwork of water ordinances throughout our cities and leave our water supplies in peril,” he wrote. “I will not sign legislation that endangers Arizona’s water future.”

Water agency director insists lawmakers can give him forbearance authority

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.

Water policy remake stirs fight unlike others in state history

Lake Pleasant, located approximately 42 miles northwest of central Phoenix, serves as a reservoir in the Central Arizona Project. Photo courtesy of Central Arizona Project.

There’s no way to avoid using this common Arizona phrase: Whiskey is for drinking, water is for fighting.

Today, more than ever, that old saying rings true.

With Republican Gov. Doug Ducey convening water giants into meetings this summer, it’s become all the more apparent that major water players in Arizona, namely the state’s water department and its canal system, the Central Arizona Project, are at odds.

And historically it’s not uncommon for water policy to be contentious here. It’s a scarce resource, and Arizona is a desert that’s been experiencing drought for more than a decade.

Still, to see the two entities publicly butting heads is novel, water experts say. And CAP sees the effort as blatantly political, with one elected office going after a duly elected board of directors.

But those who have been around awhile believe it will all be worked out in the end for the betterment of the state’s water users, like Arizona has in the past with water policy.

“It’s always fighting and conflict. It’s never pretty,” said Kathleen Ferris, an attorney who has been involved in water policy for more than 40 years. “The key is to force the agreement and the compromise. The Governor’s Office has encouraged people in this process to take a statewide view. At some point, I hope people will.”

Arizonans like to ding our Western neighbor, California, for having water cutbacks during recent dry years, boasting the state’s proactive water planning for putting us in a favorable spot.

But that current advantageous position didn’t come without skirmishes, much like the most recent iteration of water wars.

David Iwanski, director of the AZ Water Association, has been working on water issues in the state for 30 years. And he said there’s a long history of contentiousness on water policy that usually takes a “dump truck full of political leadership” to be resolved. He’s confident it will happen again this time.

“You always start with contention, and you end up with collaboration. We’re all Arizona water users. We’ll take care of each other eventually,” he said.

Central Arizona Project under construction in 1984 near Coolidge. This is a portion of the Fannin-McFarland Aqueduct and includes installation of check structure 32 (checks control and regulate the flow of water in the system). Photo courtesy of Central Arizona Project.

Where we’ve been

To take it way back, the process that eventually led to the building of the Central Arizona Project took more than five decades of intense battles both within the state and outside it to come to fruition.

U.S. Sen. Carl Hayden advocated for the canal project for the majority of his time in Washington (really, for the majority of his life). He found disagreement from all sorts of folks, from governors to industry to federal officials.

He announced he wouldn’t run for Senate again in 1968, the same year Congress finally approved legislation that created CAP.

In historian Jack August’s book “Vision in the Desert,” which recounts Hayden’s role in water policy, August describes Hayden’s “uncanny ability to organize disparate groups behind an idea or program” as one of the keys to his success. Certainly, his work on water illustrated this ability, August argues in the book.

Fast forward a bit: The Groundwater Management Act of 1980, an Arizona law often cited as ahead of its time that helped prevent over-pumping of water, had its fair share of dust-ups, too.

During that time, Ferris, a young attorney, led a state committee of water stakeholders who worked on what eventually would become the landmark legislation. But the groups didn’t fall into line willingly. Cities diverged from farmers and mines.

Then-Gov. Bruce Babbitt, a Democrat, brought in the U.S. Secretary of the Interior, Cecil Andrus, at one point to levy a threat against the warring parties. In an oral history given to CAP, Babbitt details how Andrus told water folks here that he would kill CAP if the state didn’t reform its groundwater laws.

“And I would periodically call him up and say, ‘Cec, give me some leverage, threaten to kill it and I will go out in public and condemn you as interfering in our business and telling you to stay out of our affairs.’ At the same time I would go back into the group and say, ‘OK, you hear him, he just might do that,’” Babbitt said.

The groundwater process took several years of debate among stakeholders, at public hearings and then ultimately at the Legislature. And Ferris said it all came together because of strong leadership from Babbitt. Without someone in charge, pushing the process forward, stakeholders lose focus, she said.

“Without that sort of hammer, if you will, water people just tend to talk forever and nothing gets done,” Ferris said.

Where we are

Now, Ducey is the hammer in this generation’s water policy efforts. His office convened the water meetings and chose who would be involved, in a process that hasn’t yet been open to the public.

The major idea underlying the discussion is the need for the state to “speak with one voice” on water policy, according to the Governor’s Office.

Kirk Adams (Photo by Ellen O'Brien/Arizona Capitol Times) — Kirk Adams (Photo by Ellen O’Brien/Arizona Capitol Times)

“We feel like it’s important that this generation of leaders, because it’s been that long, take another deep dive in this and see if there are things that we can improve,” said Ducey chief of staff Kirk Adams, who is leading the meetings.

In these meetings, it’s become clear the state, through the Department of Water Resources, is not pleased with CAP. Over the past couple years, the disagreements between the two entities have become increasingly heated, from a claim that CAP has sovereign immunity as an arm of the state to an alleged water “sale” where the department said CAP negotiated beyond its authority.

Among the CAP-related provisions discussed at the meetings:

Changes to the way the elected CAP board is structured.
Laws to make it clear the Department of Water Resources is the primary entity responsible for conserving water in Lake Mead.
Affirm through legislation that CAP doesn’t have sovereign immunity.
Prohibit CAP from contracting for federal lobbying services.
Require a financial audit by the state’s auditor general every three years.

The meetings are expected to result in a package of legislation that should move through the Legislature in the 2018 session. The six-month meeting process is much more condensed than the 1980 groundwater talks.

Sarah Porter, director of the Kyl Center for Water Policy at Arizona State University, said the state has a history of addressing water problems before they become urgent, something this process continues.

And the meetings have revealed there’s a need for clarity on who’s in charge on water in Arizona, something Porter said is critical for the state’s success with other Colorado River users.

“It can look either puzzling or like gamesmanship if we are not speaking with one voice. It’s OK for us as a state to show that we don’t have unanimity in terms of management decisions,” she said, adding that the state needs to look predictable to those who call the shots on water in Arizona and other states.

For the Ducey administration, the water meetings provide a way to have a generational, legacy impact on water policy. Major discussions of this sort haven’t really happened since the 1970s, Adams said. And the conflicts between DWR and CAP show why an intervention was needed.

“You can’t have, in our view, an entity as well-intentioned as (CAP) may be, going down a different track than the rest of the state. And state government is the only entity that has the ability to speak for all of the water stakeholders in the state,” Adams said.

CAP vs the world

CAP sees the meetings as a politically motivated power grab. The organization sent a statement saying water issues require nonpartisan approaches in order to be successful.

In the statement, CAP spokeswoman Crystal Thompson said that all of the governors who have led Arizona since CAP was created have managed water issues non-politically by demanding stakeholders deliberate policy disagreements “until a consensus is reached for the benefit of all.”

“Unfortunately, Governor Ducey has chosen to approach Arizona’s current water challenges with an overtly political action that bears little resemblance to this time-honored formula,” Thompson said.

CAP wants Ducey to “open up the process and lead a genuine effort of principled cooperation and open discussion that has been the hallmark of Arizona gubernatorial leadership for more than 50 years.”

Jim Holway, CAP’s board vice president, said the current water battle feels different than things he has been involved in since the 1990s here. Usually, water stakeholders get together, each with their own viewpoints, but politics doesn’t typically enter the conversations, he said.

“What I find unusual and I think unfortunate and inappropriate is the degree to which the current argument has become personalized,” Holway said. There’s been an “intentional propagation of malicious misinformation” against CAP this time around, he said.

The public beating up on one specific entity, CAP, is “outside the normal,” he said.

CAP agrees that the water resources department is the primary entity tasked with speaking for the state on water policy, Holway noted. And he agrees with the idea of speaking with one voice, but not in a way that stifles debate and input.

Lawmakers aren’t all pleased about the process, either. Rep. Rusty Bowers, R-Mesa, recently sent an email to all his fellow lawmakers calling on them to cautiously approach these water conversations and not make any commitments to specific policies before fully understanding the issues involved.

In his email, Bowers noted that the 1980 process took multiple years and involved plenty of public debate. The governor’s meetings have turned water policymaking on its head, Bowers wrote. He said water policy should have unanimity in order to be most effective.

“Your humble servant is asking you not to allow water to be politicized by pitting party against party. It has always been like Switzerland,” he wrote to lawmakers.

Bowers said in an interview that not including rank-and-file lawmakers so far and trying to conduct the meetings in secret isn’t right. And while he believes the disagreements between CAP and the Department of Water Resources should be worked out, the way it’s being handled now isn’t ideal, he said.

“I just think what (the Governor’s Office is) doing is wrong. It’s not the way you handle water policy. We’ll work it out, then here’s the cabbage, here’s the cow. If you want to figure out who’s going to eat who, then you go right ahead. That’s not how we’re going to do water policy,” Bowers said.

For those who weren’t invited to participate in the governor’s meetings, like the Sierra Club-Grand Canyon Chapter’s Sandy Bahr, the process is typical — hearing from selected voices in government, industry and agriculture without much input from the environmental community.

The process hasn’t been inclusive or transparent, she said.

“It’s just more of the same in a lot of ways, except worse,” she said.

The fact that the water resources department and CAP are fighting makes her question whether the state can actually put together something positive on water. And it sends a bad message to neighboring states, who both collaborate and compete with Arizona on water issues, she said.

“To me, it’s like they’re dancing around the real issues,” Bahr said. “Focus on the problem. The problem is that there is only so much water to go around. We’re looking at a future with less water. So how about if we all work together on problem-solving that, and in the meantime figure out ways to keep some water flowing in our rivers as well. It seems silly to spend a whole bunch of time on changing the structure and the authority of CAP.”

Where we’re going

Water resources director Tom Buschatzke said it’s necessary to address these authority issues with CAP in order to mend the relationship and work on other, bigger challenges, like managing Colorado River water.

“I think it is a watershed moment in policy for the state of Arizona. … I think it is critically important we resolve that relationship,” Buschatzke said.

The problems that led to this point for the two entities didn’t bubble up overnight, and the solutions for those problems won’t be quick and easy either, he said.

“We will be able to mend those fences with (CAP). It’s going to take an effort to do that. But I think we will be professionals in our jobs and we will find a path forward to work together once we have our roles clearly defined again,” he said.

Holway also believes the relationships between CAP and the state and other water players will be mended because it has to be.

“In the end, those entities are going to have to get along,” Holway said. “There’s going to have to be a process by which trust has been rebuilt.”

Ferris said the relationship between CAP and DWR has “really disintegrated” from where it used to be, and she pointed to CAP “stretching its authority” as one of the culprits.

“I don’t think it’s healthy, but I don’t think it’s the end of the world either,” Ferris said of the fractured relationship.

But she’s hopeful — “more hopeful than I’ve been a long time” — that working through the conflicts and putting protections into law will prevent future calamities, she said.

Porter said she thinks funding cuts to DWR during the Great Recession may have played a role, allowing CAP to step into a more active role while the department was understaffed. The department has seen modest funding and staffing increases in the past few years.

How the two entities got to this point is understandable because of the “new normal” of potential shortages on the Colorado River always looming, she said. But the problems are “definitely surmountable,” Porter said.

Most of the water experts who spoke to the Arizona Capitol Times agreed: These water issues will be worked out eventually, leading to a compromise everyone can love and hate. It’s too important for them to fall apart, they said.

“These are meaty, weighty things that will be in the best interest of Arizona to deal with,” Ferris said.

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The who’s who in Arizona’s water future

Gov. Doug Ducey called water stakeholders together for meetings designed to have the state “speak with one voice” on water issues. Two groups focus on Colorado River and groundwater issues, and fed information to a “plenary group” of major players who will decide what policies and legislation to put forward.

Here’s who’s involved in the plenary group:

Kirk Adams, Governor’s Office
Richard Adkerson, Freeport-McMoRan
Mark Bonsall, Salt River Project
Don Brandt, Arizona Public Service
Tom Buschatzke, Arizona Department of Water Resources
Ted Cooke, Central Arizona Water Conservation District
Kathy Ferris, Kyl Center for Water Policy
Bill Garfield, Arizona Water Company
Maureen George, Mohave County Water Authority
John Graham, Sun Belt Holdings/Valley Partnership
Pat Graham, The Nature Conservancy
Joe Gysel, EPCOR Water
Glenn Hamer, Arizona Chamber of Commerce and Industry
Michael Hunter, Arizona Legislature
David Hutchens, Tucson Electric Power
Jim Lane, City of Scottsdale
Stephen Lewis, Gila River Indian Community
Hunter Moore, Governor’s Office
Mark Smith, Yuma County
Jim O’Haco, Arizona Cattlemen’s Association
Paul Orme, Pinal County Agriculture
Dennis Patch, Colorado River Indian Tribes
Craig Sullivan, County Supervisors

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