For years, Colorado River states have been negotiating a plan to avoid the worst – a shortage in Lake Mead so bad it could trigger unprecedented cutbacks. With the region experiencing drought conditions since 2000, even California, which has senior rights, came to the negotiating table. State officials said they were willing to voluntarily reduce Colorado River allocations to keep water levels in Lake Mead – the reservoir that holds water behind Hoover Dam for Arizona, California, Nevada and Mexico – from slipping below a critical threshold.
The primary obstacle to a deal, known as the Drought Contingency Plan, has been an internal power struggle in Arizona about conservation and which agency gets to make decisions about using the state’s Colorado River water.
In February, an obscure legal battle involving farmers and the Imperial Irrigation District (IID) in California created a new hurdle for the Drought Contingency Plan. If it is not resolved, it could reduce California’s ability to curb its Colorado River use by storing water in Lake Mead and could impede progress on a regional water agreement of increasing importance.
California has the largest entitlement to Colorado River water in the Lower Basin. About two-thirds of California’s water flows to the Imperial Irrigation District, making it a key player in negotiations.
Under the current drought plan, California would leave as much as 350,000 acre-feet of water in Lake Mead to prevent water levels from falling to 1,025ft above sea level – if Lake Mead falls below 1,025ft, the Interior Department could make an emergency declaration and take drastic steps to stabilize the reservoir. Nobody wants that. Yet for California to leave water in Lake Mead, IID needs to help and a recent legal decision has made it harder for the district to control its Colorado River water.
“We are still in discussions and IID says they are committed to working” on the drought plan, said Bill Hasencamp, who manages Colorado River water for Metropolitan Water District of Southern California, the state’s largest water wholesaler. “Whether they can effectively, with the allocation plan in limbo, is a question mark, frankly.
“Obviously, we can’t do a deal without IID,” he added.
A Complicated Court Decision
At issue is a legal opinion that invalidated a program IID used to cap Colorado River water use and avoid taking too much water. Located in the southeast corner of California, IID is one of the biggest irrigation districts in the country, with an annual entitlement of 3 million acre-feet of water a year, most of which goes to farms.
In 2013, the district’s board, building on an agreement forged in 2007, approved a program to help the irrigation district better manage its Colorado River allocation.
At the time, the district had several years of overruns, where it ordered more Colorado River water than it was permitted. This came at a steep cost to the district, which had to pay back the excess water in future years. The Equitable Distribution Plan, as amended in 2013, was an attempt to fix that issue by capping each grower’s water allotment to a certain amount per acre.
But some growers in the Imperial Valley objected to the way IID said it would apportion water. Imperial moved from historical use as the only basis for the apportionment and included a fixed per-acre cap. It did not give enough consideration to crops, soil or irrigators’ priority, growers argued. Although no one was denied water, growers were concerned the cap on water could violate their historical water rights and limit their future use.
Shortly after the board passed the 2013 plan, Michael Abatti, whose family has farmed in the valley for decades, challenged the plan in court. Last August, the court ruled in Abatti’s favor, ordering the district to revert back to historical water use as the basis for its allocations.
“Michael Abatti challenged the IID’s Equitable Distribution Plan because it was not equitable at all and, indeed, was unlawful,” Lee Hejmanowski, his lawyer wrote in an email. The district asked for a stay, but an appellate court denied the request, forcing the IID’s board to repeal the Equitable Distribution Plan in early February.
As a practical matter, the repeal of the Equitable Distribution Plan lessened IID’s control over its plans to potentially store more Colorado River water in Lake Mead, which is a key part of California’s role in the Drought Contingency Plan.
“The absence of [an Equitable Distribution Plan] means that we lack a very important tool that has served us since 2013, and will certainly reverberate throughout the basin and among all the Colorado River water users,” Kevin Kelley, IID’s general manager, told the board on February 6.
To leave more water in Lake Mead, IID needs to know how much water it will consume each year so it can guarantee to Metropolitan Water District and other Colorado River users that they can reduce the district’s overall water use.
Without the allocation system, IID’s water use is determined less by its elected board and the staff and more by the orders of agricultural users, which can vary. The ruling leaves the district with fewer management tools to control overruns and conservation.
Lake Mead Impacts
Imperial growers want the district to drop the case, but the district is appealing the case on its merits.
Chuck DuMars, an Imperial Irrigation District consultant and a prominent New Mexico water attorney, said the best solution would be to vacate the decision and negotiate a new Equitable Distribution Plan. But so far neither side has seemed willing to drop the litigation without guarantees they’d get what they want out of a new apportionment program.
So what does this mean for Lake Mead?
The timeline for litigation does not line up with the timeline for a Lake Mead plan. It could be more than a year before a hearing, while water users across the Colorado River basin are aiming to have their drought plan done by August.
Chris Harris, who leads the Colorado River Board of California, described it as a “wrinkle.”
He said, “I don’t know that by any means it is a showstopper.”
The IID issue is not the only roadblock to a drought plan. Arizona’s power struggle remains a challenging hurdle, water managers said. But the continued litigation adds a new dimension to negotiations in a valley where the drought plan has already been a contentious issue. Using their key position in negotiations, Imperial Irrigation officials have said they will not sign off on the plan until another issue is resolved: funding to mitigate the public health crisis unfolding in the valley’s Salton Sea, where a shrinking lake is exposing the Imperial Valley and other nearby communities to hazardous dust. The state is in charge of mitigating health and environmental concerns from the lake, but the effort has been slow to get going.
The good news: There is some breathing room. Hasencamp said a shortage in Lake Mead isn’t likely to be declared next year.
“There is still a sense of urgency that this needs to happen in the next couple of years,” he said.