Water Law Expert: Biden's Colorado River Analysis Could Pit Arizona And Nevada Against California
By Dorsey & Whitney
On April 11, the Biden administration released an environmental analysis on how the Upper and Lower Basin states should cut down on their Colorado River use. However, the plan gave three alternatives on how cuts should happen, and one of the country’s top water law experts, Gage Zobell, says there really are only two viable options.
The following commentary from Zobell breaks down the alternatives from the Biden analysis and goes over some key takeaways. He states:
The release of the draft Supplemental Environmental Impact Statement on April 11th was unexpected, both as to the date of its release but also, more importantly, the suggested alternatives to future reductions along the Colorado River.
While the SEIS gives three alternatives, there are in fact only really two. The third, the ‘no action’ alternative is a classic inclusion from NEPA and not typically considered an option. Given the historic drought and need for reductions, ‘no action’ was never really a choice.
After the United States Bureau of Reclamation (USBR) announced that it was initiating its 6-month NEPA analysis last October, we all were anticipating the SEIS to be released, but were unsure exactly when it would.
It seems the California gamble did not pay off. The USBR is proposing that future cuts, up to 2 million acre-feet, all be born out of the Lower Colorado River Basin usage. Had an agreement with the Upper Colorado River Basin been agreed to, some of these additional reductions likely could have been mitigated by offsets in the Upper Basin.
Option 1 insulates California, to a degree, as the proposed reductions would be based on priority. California has senior priority and Arizona and Nevada (Las Vegas) would feel the brunt of reductions. Given the overall allocation of water, this could be catastrophic for Arizona and Nevada. And Option 2 is a proportional reduction by usage, this will make California feel the pinch and protect Arizona and Nevada.
The California gamble backfired and the Lower Basins States will now feel the pinch (or squeeze). This forces the Lower Basins States to look to each other and essentially will pit Arizona and Nevada against California.
The real question is twofold: (i) after 45 days of public comment to the SEIS, will the USBR revise their options, and (ii) if not, which option will be chosen. My bet is that the 45-day public comment will not result in a major revision and that, nothing happens, Option 2 and a proportional reduction will be the choice.
Bottom line, this is an opportunity for all the Colorado River States to come together and suggest their own reduction. But the Upper Basin States are no longer incentivized to come to the table based on the current options. California made its gamble and now the citizens of southern California (and those of Phoenix and Las Vegas) may bear the consequences.
Gage Zobell is a partner at international law firm Dorsey & Whitney, where he has an active water practice throughout the Intermountain West and advises a variety of companies in regulations and compliance.