Introduction

With interstate discussions of critical Colorado River issues seemingly headed for stalemate, Secretary of the Interior Gale Norton stepped in May 2 to defuse, or at least defer, a potentially divisive debate over water releases from Lake Powell. In a letter to governors of the seven Colorado River Basin states, Norton preserved the status quo of river operations for five months, giving states and stakeholders a chance to move back from the edge before positions had hardened on two key issues: (1) shortage guidelines for the Lower Basin and (2) Upper Basin/ Lower Basin reservoir operations, particularly at Lake Powell. But Norton served notice that she wants discussions on those two issues to continue, possibly outside of the annual operation plan (AOP) consultation process, which at least one observer described as unwieldy.

In her letter, Norton said no adjustment is necessary in the amount of water scheduled to be released from Lake Powell for the next five months. According to the 2005 AOP, the Bureau of Reclamation (Reclamation) is to schedule releases from Lake Powell to the Lower Basin to achieve the minimum objective release goal of 8.23 million acre-feet during 2005.

She also asserted that she has authority to adjust releases from Lake Powell through the AOP process. “When developing annual operating plans for the Colorado River, including this and future mid-year reviews, the Department retains authority pursuant to applicable law and the Operating Criteria to adjust releases from Glen Canyon Dam to amounts less than 8.23 million acre-feet per year,” she said.

That mollified at least one concern of the Upper Basin. The Lower Basin got something, too, an assurance of no disruptions in deliveries from Lake Powell this year. “There is something in [Norton's letter] for both basins and something to make both basins squirm a little bit,” said Don Ostler, executive director of the Upper Colorado River Commission. Part of the squirming may be due to a December 2007 deadline Norton also set for agreement on guidelines for years when less than the minimum objective release might be delivered and for conjunctive management of Lake Powell and Lake Mead.

Norton’s decision was made possible, in part, by unexpected and welcomed higher-than-average runoff in the current water year into Lake Powell, which has been drawn down by drought over the last five years. In April, Lake Powell was at 33 percent of live capacity, about 8 million acre feet, but by mid-June runoff had increased storage to more than 11 million acre-feet, or 45 percent of capacity. Reclamation estimated total unregulated runoff to Lake Powell will be about 13.14 million acre-feet for all of the 2005 water year, and would bring Lake Powell to about 52 percent of capacity by Sept. 30.

Created by construction of Glen Canyon Dam, Lake Powell, located in north-central Arizona, acts as a holding tank for outflow from the Upper Basin states of Colorado, New Mexico, Utah and Wyoming. Up to 27 million acre-feet of water can be stored in Lake Powell, which is used for a variety of purposes, including recreation, power generation and delivering water to the Lower Basin.

Although Norton’s announcement provides a “cooling off period,” it does not resolve any underlying issues that have divided the Upper and Lower Basins on releases from Lake Powell. The Upper Basin states contend the situation calls for an interpretation of the 1922 Colorado River Compact, but Lower Basin states say it can be resolved in the context of the Long- Range Operating Criteria for Colorado Reservoirs. The five-year drought that has plagued the basin beginning in 2000 brought such issues to the forefront, but Norton stepped in when the seven basin states were unable to reach agreement among themselves on how to resolve them.

“It is a statement of federal power on the secretary’s part to be able to make this decision. She is claiming that [ordering continued releases from Lake Powell] is within her discretion,” said Robert Glennon, professor at the University of Arizona School of Law and author of Water Follies: Groundwater Pumping and the Fate of America’s Freshwaters.

Ostler agreed that the secretary clearly stated that she has authority to adjust releases from Lake Powell below the current minimum objective release of 8.23 million acre-feet. However, he also said that this was not a new statement of authority, but a restatement and reconfirmation of the authority of the secretary derived from the 1970 Long-Range Operating Criteria to make such adjustments.

Although Norton’s decision appeared to give something to each basin, it was viewed quite differently by officials in the two basins. “Although I am disappointed by your decision, I am heartened that you have emphatically reminded all interested parties that the Department of the Interior does retain authority to adjust releases from Lake Powell and may do so as soon as next year,” said U.S. Senator Ken Salazar (D-Colo.) in a statement. Arizona Gov. Janet Napolitano (D) said, “I commend Secretary Norton’s decision to support the laws of the Colorado River. This decision also recognizes that there is great value in maintaining the longstanding and cooperative relation ship among the seven states that draw water from the Colorado.”

Scott Balcomb, an attorney with Balcomb & Green and Colorado’s representative on the Upper Colorado River Commission, said the Upper Basin is very happy with Norton’s statement that she has authority to adjust releases from Lake Powell within the AOP. But he acknowledged the Upper Basin didn’t get everything it asked for, and he cautioned that if drought conditions return next year, so will the issue of releases from Lake Powell.

Bill Swan, special counsel to California’s Imperial Irrigation District (IID), the largest water contractor in the Lower Basin, agreed that Norton’s decision gave something to each basin, but disagreed that the Interior secretary unilaterally can make adjustments to releases from Lake Powell within the AOP process. The Long-Range Operating Criteria “confine the secretary’s behavior,” he said, so any adjustments would require the secretary to initiate a formal, public process to amend those criteria.

In her letter, Norton noted that the basin states have been building better working relationships on issues pertaining to river management. However, there is a long history of litigation associated with some parts of the Law of the River. The relatively recent cooperative spirit will be put to the test as the seven states and other stakeholders work to forge consensus on shortage guidelines for the Lower Basin and conjunctive management of Lake Powell and Lake Mead, by Norton’s December 2007 deadline. This issue of Western Water explains Secretary Norton’s decision and what it means for the Basin states and stakeholders.

NOTE: A complete copy of this 16-page magazine is available from the Foundation for $3. Visit our Products Page and add the July/August 2005 issue of Western Water to your shopping cart.

Editor’s Desk

Although the Colorado River Basin drought continues, a welcome respite came in late spring in the form of higher-than-average runoff into Lake Powell. As writer Glenn Totten notes in this issue of Western Water, the additional water helped defuse, or at least defer, a potentially divisive debate over water releases from Lake Powell. We will be watching closely as the seven states follow Interior Secretary Gale Norton’s edict to work together to develop shortage guidelines for the Lower Basin and conjunctive management of Lake Powell and Lake Mead by December 2007.

It is difficult for the general public to understand the complexities of an issue such as the Colorado River Upper Basin-Lower Basin dispute. But as we work to fulfill the cornerstone of our mission, we know it is imperative that people learn enough about water so they can make solid decisions about how to manage this vital resource. As water supplies are stretched ever further to meet demand from all sectors, it is clear that our elected state and federal representatives will be asked to determine how and when to promote water conservation, support new supply projects, uphold environmental protection and consider other key issues.

Yet reaching elected officials can be difficult. In 2002 we launched a new California Legislative Education Program - conducting educational seminars at the state Capitol and inviting legislative aides, as well as legislators, to learn about California water. Funded by The James Irvine Foundation, these “brown bag” lunchtime sessions have been a big success. Aides on both sides of the aisle have heard from speakers on all sides about such issues as groundwater management, water conservation, flood management, seawater desalination, water storage, endangered species and Colorado River issues. It often is the legislative aides who draft and assist the member with bills and final legislation. Grant funding for the program also allows us to provide scholarships for aides to attend our annual conferences and briefings as well as our popular water tours. We also have been able to include several legislative aides in our annual

William R. Gianelli Water Leaders Class. This one-year program identifies young community leaders from diverse backgrounds, including members of minority and ethnic communities, and educates them about water issues. The program enhances individual leadership skills and prepares participants to take an active, cooperative approach to decision-making about water resource issues. Leading stakeholders and top policy-makers serve as mentors to class members. Click here to learn more about the program.

This year’s class is the ninth since the inception of the program, and applications for the 2006 class will be available in September. If you would like to receive an application, contact Jean Nordmann.

– Rita Schmidt Sudman

In the News

Court Rules on Ag Waiver

A controversial program to strengthen regulation of contaminated runoff from irrigated agricultural operations in the Central Valley largely was upheld in a detailed, 40-page ruling May 9 by Sacramento Superior Court Judge Judy Holzer Hersher.

In a complex ruling, Judge Hersher said the Central Valley Regional Water Quality Control Board (Regional Board) acted within its discretion in giving farmers an alternative to obtaining waste discharge requirements (WDRs) for agricultural runoff, but she sent three parts of the program dealing with constructed agricultural drains and enforcement issues back to the Regional Board for changes.

“We are grateful we can now proceed with a program that will clean up the waters while being sensitive to the farmers’ livelihood,” said Arthur G. Baggett, Jr., chair of the State Water Resources Control Board (State Board), which is overseeing implementation of the conditional ag waiver program statewide. Environmental groups challenged the program as too lax, and the California Farm Bureau Federation said it was too burdensome on farmers.

The program allows farmers to choose to report their runoff and obtain WDRs or to seek coverage under a conditional waiver, which includes detailed assessment, monitoring and cleanup requirements. Farmers may seek waiver coverage individually, but they are encouraged to join “coalition groups” that can cover hundreds, sometimes thousands, of growers. About 25,000 growers farming more than 7 million acres of land in the Central Valley are covered under the program.

The court held that the Regional Board has discretion under Water Code Section 13269 to adopt a waiver program that includes as a condition that farmers comply with water quality objectives included in basin plans. Rejecting a claim by the environmental group Deltakeeper, the court said the Regional Board has discretion to include a timetable for compliance with water quality objectives as part of the ag waiver.

The Farm Bureau argued the opposite point, that the Regional Board did not have authority to require compliance with water quality objectives as part of the waiver. The court rejected that argument, too, but did rule in favor of the Farm Bureau that constructed agricultural drains do not appear to be covered as water bodies by the waiver and that the waiver infringes on Water Code protections against disclosure of trade secrets and encourages farmers to submit to searches of private property. It sent those issues back to the Regional Board for clarification.

Meanwhile, the State Board issued a proposal in May to assess annual fees on growers covered by conditional ag waivers in the Central Valley, Central Coast and Los Angeles regions. If adopted, growers covered by conditional waivers would pay a flat $100-per-farm fee plus 12 cents to 30 cents per acre of land. Lower fees apply if a grower is a member of a group approved by the State Board. Revenue from the fee, estimated at $1.9 million, would be used by the State and Regional Boards to pay for additional staff to administer the conditional waiver program and educate farmers about non-point source runoff.

– Glenn Totten