Arizona prepares for legal fight over water

Friday, Aug. 26, 2005 | 11:09 a.m.

SAN DIEGO -- Representatives of the seven states of the Colorado River basin met Thursday amid calls for cooperation and collaboration, but even as they did one of the key players was preparing for legal combat.

Arizona, the most junior among the seven states in terms of priority access to the water of the Colorado River, is preparing a $1.5 million fund to pay for legal work if the contentious issues of dividing the river go to the courts, Herb Guenther, director of the Arizona Water Resources Department, said.

The state is asking its major water agencies, American Indian tribes, cities and industries to contribute to the legal fund.

Guenther's department contributed $200,000, which has helped pay for an attorney to do an initial assessment of the legal foundation for Arizona's potential skirmish with other states and a risk assessment of taking that argument to the courts.

Arizona is concerned that shortages of the resource, which has been pressed by rising demand from population increases and by years of drought, would fall hard on the state's urban areas.

Arizona and the other six states of the river, including Nevada, worked Thursday to produce a tentative road map for handling shortages if the supply continues to fall in the river's principal reservoirs, Lakes Mead and Powell.

Also dividing the states are plans by the Southern Nevada Water Authority to develop in-state resources to augment the agency's topped-out supply from Lake Mead.

The issues threaten the basic Colorado River Compact, which has formed the basis for river law since 1922, said a Las Vegas official.

Pat Mulroy, Water Authority general manager, was scheduled to speak to the collected ranks of Western water managers this morning. She said her basic message will be simple.

"If there were ever a time when it was critically important to look at new options, that time is now," she said. "Our failure to do so would cause the whole compact to crater."

Water Authority plans to treat and divert water from the Virgin and Muddy rivers, which are Colorado River tributaries, to Las Vegas have contributed to divisions between the upper basin states of Wyoming, Colorado, Utah and New Mexico and lower basin states of California, Arizona and Nevada.

Colorado in particular has argued that any water Nevada takes from the Virgin River should count against the Silver State's allotment of 300,000 acre-feet it takes annually from Lake Mead.

Arizona, which takes water from other tributaries, is concerned that if Colorado wins the argument, Arizona would lose more than 700,000 acre-feet, enough water for millions of people.

The issue could re-open a 1964 Supreme Court decree that prohibited the federal government, rivermaster of the lower basin, from charging Arizona for water it takes from tributaries. The ruling, one of the basic elements of Law of the River, along with the 1922 Colorado River Compact, has long been a source of contention for the upper basin states.

The Water Authority hopes to take as much as 125,000 acre-feet annually from the Virgin and Muddy rivers in northeast Clark County. One acre-foot is about 326,000 gallons, or about enough water for two families for a year.

Guenther said Arizona does not want to go to court to settle its differences.

"Arizona would rather negotiate than litigate," he said.

Mark Limbaugh, the Interior Department assistant secretary, said it is critical that the states avoid taking the issues to federal courts.

"Litigation is time consuming and costly," he said.

The results of legal battles would be unclear for all players, including Arizona, he said, raising the possibility that the state could be worse off after litigation.

"From litigation arises uncertainty, and from uncertainty ensuing crisis and conflict," said Limbaugh, who took office this year.

Limbaugh, like others with a hand in the ongoing talks of the seven basin states, said he is optimistic that a court battle can be avoided.

An Arizona lawyer, who represents California farmers who have the historical priority right to Colorado River water, said all parties have to be prepared for at least the possibility of litigation.

"If we're going to fight, it's not going to be urban versus agricultural users," said Bill Swann, a former Interior Department attorney. "It's going to be upper versus lower basin states."

Swan, speaking to water managers at a meeting of the Urban Water Institute, held while the seven basin states met across town in San Diego, said Arizona and Nevada are natural allies in the contentious issues of the Colorado River.

Arizona has the last, most junior priority to the river resource, but Nevada receives just 300,000 acre-feet from the river, a tenth of Arizona's allotment and the smallest amount of all seven states.

"Nevada is in a particularly difficult position," he said. "Nevada's strength is working with the other states cooperatively."

Swan said that if legal war breaks out on the Colorado River, a prospect that all of the states say they want to avoid, it is likely that Congress would step in to resolve the issues.

"When you have national calamities like that, in my experience Congress steps in," he said.

Mulroy said that unlike Arizona, her agency is already prepared to go to court if necessary.

"Everybody is checking their hole card and preparing for the worst," she said. Still, "I'm going to stay optimistic unless it falls apart."

Mulroy said the stakes are huge for Nevada, and because of Arizona's reliance on tributaries, both states are together on the issue. The fact that the seven states are still talking and agreed on a letter to go to Interior Secretary Gale Norton was a good sign, Mulroy added.

In that letter, the states agreed to continue talking about the issue of tributaries and "augmentation" -- the Water Authority's plan to treat wastewater produced by its hoped-for development of rural Nevada water and put that treated water into the Colorado River.

The Water Authority hopes to receive credits to take an equal amount out of Lake Mead.