States trying to avoid legal water war

Thursday, Dec. 15, 2005 | 7:59 a.m.

Facing tough questions over how to equitably share a shrinking resource, representatives from Nevada and other Colorado River basin states on Wednesday rallied around the hope that they will be able to avoid legal warfare over water use.

As a three-day conference on water issues began in Las Vegas, Pat Mulroy, general manager of the Southern Nevada Water Authority, said representatives from the seven basin states made progress Wednesday in ongoing talks on how to share potential water shortages, but conceded: "There were no big breakthroughs."

The states essentially agreed to continue to talk about the contentious subject, committing to three meetings next month at which they hope to hammer out a consensus on the shortage issue by the end of January.

Observers and representatives from the seven states met at the annual conference of the Colorado River Water Users Association on the same day that Interior Secretary Gale Norton approved the river's 2006 Annual Operating Plan. Norton said the Bureau of Reclamation would meet the "minimum objective release" threshold of 8.23 million acre-feet next year, a move that was expected.

She reserved the right to alter the expected releases in an April review if drought threatens the river's two main reservoirs, Lake Powell and Lake Mead. But in her Wednesday announcement, Norton did not mention the issue that is scheduled to bring her to the conference Friday: the long and difficult road to craft rules on how the states would share feared shortages of water on the river.

The states have been working for over a year to draft consensus recommendations to submit to Norton, who is the legal rivermaster for the lower Colorado River basin. The lower basin states of California, Arizona and Nevada and the upper basin states of Colorado, Wyoming, Utah and New Mexico have had sometimes sharp disagreements over how drought-induced shortages should be handled.

Those disagreements were illustrated during a polite but pointed debate at the conference Wednesday between two lawyers, one representing the upper basin and one the lower basin.

Jim Lochhead, who works with Colorado water agencies, questioned whether the 1922 Colorado River Compact, which provides the original framework for the Law of the River, requires the upper basin states to provide 7.5 million acre-feet of water annually to the lower basin -- a critical question as the level of Lake Powell, the upper reservoir, gets lower and lower.

Jerry Muys, a lawyer who has represented California's Metropolitan Water District in legal battles with other states, argued that the law is clear and requires the upper basin states to continue providing at least that much water.

The issue is fundamental to the talks on potential shortages. Lochhead reminded those attending the conference, including lawyers from water agencies throughout the West, that failure to agree on solutions could lead to court cases.

"The court is not adverse to applying its own solutions," Lochhead said.

If the issue ever were to reach court, Lochhead said, the upper basin would be in a strong position by virtue of the fact that its four states have not been using their full apportionment of 7.5 million acre-feet. In contrast, the lower basin has been using more than its 7.5 million acre-feet apportionment.

"In that situation, I think the court would say the lower basin has to curtail its use," Lochhead said.

But Muys said the original framers of the Colorado River Compact assumed that the lower basin would use more than the basic apportionment. The current debate, he added, shows that those writing the compact "did a fairly sloppy job."

"In my lifetime, we will be rewriting the Colorado River Compact," Muys predicted.

One thing that Muys and Lochhead agreed on is that, for all parties, discussions and consensus are preferable to legal combat.

"All the parties have too much at stake," Muys said, echoing comments by Mulroy and other local agency leaders. "What we maybe have to do is have a two-pronged approach -- engineers on the technical side to work out the best conjunctive management, and lawyers looking at the existing legal structures and impediments."

Litigation, he said, would do little to resolve issues separating the states.

Lochhead agreed.

"Colorado is committed to reaching agreement," he said. "I certainly know Nevada is committed as well.

"We are not going to get answers from the Supreme Court that would satisfy anybody ... You would lose the opportunity to manage a public resource for the benefit of everyone. We have to find ways to work within the system and find ways to share risk equitably."

Mulroy said the basin states' closed-door negotiations earlier in the day did not involve the legal saber rattling that had characterized similar meetings earlier this year. The trend, she said, is for incremental agreements among the states on how to manage the river among all seven states.

"There is movement," she said.

Bob Johnson, regional director for the Bureau of Reclamation, agreed.

"There are no big announcements that, 'We've got a solution,' but there was definitely some progress," he said.

Launce Rake can be reached at 259-4127 or at lrake@lasvegassun.com.