There’s a new plan for sharing water from the Colorado River, and it means big cutbacks for cities in the Phoenix and Tucson areas. Now that the federal government has put the plan in ink, it will soon affect the amount of water that flows to cities and farms across the West.
It comes after yearslong negotiations between the seven states that use the Colorado River’s water. Arizona sent a delegate to those talks who helped shape the plan. But, thanks to an old quirk of Arizona law, there may be one more step before the plan becomes a reality.
Arizona is the only basin state where the Legislature has a chance to sign off on Colorado River plans.
There’s one obscure, vague sentence of Arizona law from 1980 that could have an impact on present day water negotiations. It could bring state lawmakers together this summer to consider — and maybe vote on — the next chapter of the Colorado River.
However, the details of that process are murky. What exactly are lawmakers being asked to do, and how much power do they actually have? KJZZ set out to find answers.
How did we get here?
When Arizona and six other states first set out to write regionwide laws for managing the Colorado River, the West looked a lot different. The city of Phoenix had a population of about 30,000 people. Parts of the Valley that are now lined with suburban streets were largely farmland and desert.
In 1922, delegates from each of the seven states that use the Colorado River convened near Santa Fe, New Mexico, and wrote up rules to govern how its water would be shared. In the century-plus since that first agreement, called the Colorado River Compact, the West has changed and so have the rules for sharing water.
States and the federal government have layered new laws on top of that 1922 document, gradually adapting river management strategies as water supply and water demand evolved. But one thing has remained relatively constant — major, regionwide changes to Colorado River management are primarily decided by seven individuals representing each of those states.
Those state delegates don’t act alone. They consult with cities, farms, politicians and tribes on their way to the negotiating table. The federal government is often involved. They usually bring lawyers. But ultimately, the decisions are haggled over and decided upon by one representative each from Arizona, California, Nevada, Colorado, New Mexico, Utah and Wyoming. The decisions that emerge from those closed-to-the-public meetings have sweeping consequences for the nearly 40 million people who depend on the river’s water.
So it stands out that Arizona, and only Arizona, has one extra layer to make those decisions official.
That layer became a reality in 1980. It exists as a 36-word statute that was part of the Groundwater Management Act.
“An agreement entered into between the 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,” the statute reads.
Rita Maguire has thought a lot about it. She served as director of the Arizona Department of Water Resources from 1993 to 2001, making her the state’s main negotiator for the Colorado River — one of those seven delegates.
She still works as an attorney and describes water law as “a passion.”
Maguire said the statute wasn’t originally designed to deal with the Colorado River at all, just provide a broader check on the power of the state agency she used to direct.
“The reality is, when the Legislature adopted the language in this particular statute, it was to keep a balance between state agencies and the Legislature,” Maguire said. “Beyond that, they weren't at all contemplating Colorado River issues.”
What can the Legislature actually do?
The statute, decades old and vague, leaves a lot to interpretation. Even though it is frequently mentioned during conversations about the Colorado River, Maguire said, it can be hard to tell exactly how much power it gives Arizona lawmakers.
“No one has a clear understanding of what it means, because it's never been tested,” she said.
Maguire said the Legislature has not attempted to revoke any Colorado River plans put forth by Arizona’s negotiator, so it would be “speculation” to guess what would happen if they did so this time around.
To get a clearer sense of what power the Legislature might wield, experts said, it can be helpful to focus on what specific water policy they are voting on.
New rules for managing the Colorado River are, ultimately, a decision of the federal government. Historically, the seven states agree on a plan for sharing water, then the federal government takes those plans and sets them into action at the massive reservoirs and dams along the river operated by the Bureau of Reclamation.
This time around, the states can’t agree. After a yearslong impasse in negotiations, the federal government is reluctantly forging ahead with its own plan that will deal big cutbacks to Arizona, California and Nevada.
Rhett Larson, a professor of water law at Arizona State University, said Arizona lawmakers do not have the power to revoke that federal plan, even if they vote to oppose it.
“The federal government couldn't care less if the state Legislature approves or disapproves,” he said.
A different kind of agreement, though, might fall under the Legislature’s purview.
Arizona, California and Nevada have signed a deal with one another to make big cutbacks to their take from the Colorado River. It is designed to work alongside the new federal plan and soften the blow of steep mandated cutbacks by spreading the pain of water reductions across three states, instead of allowing them to fall disproportionately on the Phoenix area.
Larson said there will probably have to be a special session of the Arizona Legislature to approve that agreement.
Finally, there’s a third thing that legislators can vote on — how to make water cuts within Arizona. This, Larson said, is the area where they may wield the most power.
If lawmakers all gather in a special session to approve Arizona’s role in a multi-state agreement, they may use the meeting to tweak state laws that make it easier for Arizona to adapt to a future with less water from the Colorado River.
Larson posed a hypothetical scenario for lawmakers.
“We're going to go ahead and approve the deal because we feel like we don't have any other choice or any better option,” he said. “But as long as we're all in the room, how about we make the following changes to groundwater management to respond to less Colorado River water?”
Larson said that, as opposed to a vote on a big multi-state agreement, is “the more likely and the more interesting outcome.”
How will lawmakers vote?
If lawmakers gather for a special session, they will be making decisions about the future of Arizona at a time of deep political divisions. Their stances could influence the direction of water use across the state for years.
Democratic Gov. Katie Hobbs said she hopes lawmakers will come together from across the political spectrum for this vote without straying into other unrelated water policy issues.
“I think that it is in the best interest of Arizona to focus on that [the deal] and not use a special session needed for ratification to kind of delve into a whole bunch of other water issues,” Hobbs said.
Sen. Priya Sundareshan (D-Tucson) said this is the time to be more restrictive of Arizona’s groundwater resources, not to allow for more groundwater pumping to mitigate cuts.
“The magnitude of the Colorado River consequences are finally hitting here, so it's just more important than ever that we do not weaken our own groundwater management. We still have a great need to strengthen it there’s still a lot of loopholes that remain,” she said.
The process of divvying up water use could fracture caucuses.
Rather than this being a partisan issue, it could create a divide between rural and urban representatives — since lawmakers won’t want to vote for a proposal that makes their legislative district suffer from cuts.
“When we do have to figure out which users take more cuts than others, I think that’s when we’ll start to see the controversy and the concerns and perhaps some increased fighting occur,” Sundareshan said.
In March, GOP Rep. Alexander Kolodin told his constituents in Scottsdale that House Republican leaders are trying to discourage members from separating into rural versus urban groups on the river negotiations.
“There was a sheet that’s handed out by [GOP] leadership that’s talking about, ‘Oh no, we don’t want this to split the caucus and put the districts against each other,’” he said. “Meanwhile, all the members in the rural districts are trying to form their own negotiating party to deal with their own Colorado River stuff.”
As for the likelihood that the Legislature will be able to vote yes, no one is confident in the answer.
If lawmakers end up rejecting whatever water proposal ultimately goes up for a vote, Senate Natural Resources Chairman T.J. Shope predicts the issue will end up in court.
“The impact of what these negotiations are — it’s probably some of the biggest decisions anybody’ll make in their entire legislative or gubernatorial career,” the Coolidge Republican said.
Shope is optimistic that lawmakers can come to a bipartisan agreement based on the last time lawmakers had to vote on a water shortage issue.
In 2019, the Legislature voted almost unanimously to pass a Drought Contingency Plan for the Colorado River. That’s what legislative leaders hope will happen with the Colorado River session.
As of March, Shope and Sundareshan both said Republicans and Democrats were working together on river negotiations.
Shope says it could be even more complicated than just “rural versus urban” because each of the state’s 30 legislative districts has internally competing priorities and stakeholders.
His district alone touches three counties and includes multiple groundwater protection areas, plus land without any groundwater restrictions.
What does Arizona’s top negotiator think?
For all of the speculation about the Legislature’s power, the man who actually represents Arizona in Colorado River talks thinks it will be a non-issue.
Tom Buschatzke, current director of the Arizona Department of Water Resources, said he would not take a new Colorado River plan to the Legislature “blindly.” He has regular briefings with both chambers and both parties, and used their input to shape Arizona’s contributions to multi-state talks.
“I'm not going to really end up at the Legislature if I don't already know, from laying all the groundwork, that there's a very, very good chance that they're going to approve what we're putting in front of them,” Buschatzke said.
Buschatzke said he has already refused to entertain certain proposals from other states simply because he knew they would not pass the Arizona Legislature.
“Actually, it helps us get to a better deal and a sellable deal,” he said. “Because at the end of the day, if your deal is not implementable and the people who are impacted by it or have to implement it won't, then your deal is going to fall apart. A piece of paper is only a piece of paper.”
