Months ago, in the face of “unacceptably high” risk to the Colorado River’s complex system of reservoirs, US Bureau of Reclamation Commissioner, Brenda Burman, indicated that if the seven Colorado River Basin States could not agree to a drought contingency plan (DCP), then the federal government would post a notice in the federal register seeking comments from the states on the best course of action, and then unilaterally decide how to manage the river under fast-approaching shortage conditions.  On March 19, 2019, with the endorsement of the US Department of the Interior, the seven Basin States and key stakeholders formally submitted the Colorado River Basin DCP to Congress for immediate implementation.  In response to their March 19 letter, Congress invited the Basin States’ representatives to testify on March 28, 2019 on the need for the DCP.

During their testimony, the Basin States and Commissioner Burman aligned in characterizing the DCP as necessary to avoid crisis.  Commissioner Burman described the Colorado River as the “most vital resource to the environment and the economy of the Southwest,” and contended that the DCP was a “seven-year insurance policy” designed to avert crisis, not a plan to keep the basin out of inevitable shortage. There was also a consistent recognition among Basin State Representatives that climate change is driving shortages and a lack of predictability on the Colorado River.  John Entsminger, of the Southern Nevada Water Authority, pointed out that the Western United States’ high snowpack in 2018-19 should be taken as evidence of the wide fluctuations in weather patterns that are expected to accompany climate change, rather than the end of a decades-long drought.

As the Basin representative for Colorado, and Squire Patton Boggs attorney and policy advisor, James Eklund pointed out during his Congressional testimony, the DCP provides tools to strategically manage water resources above Lake Powell, allowing more storage in Lake Powell and more operational flexibility throughout the system. Eklund also testified “It’s business as usual for applicable Records of Decision and Biological Opinions under the National Environmental Policy Act and the Endangered Species Act.  Nor are we asking you to enlarge or add to the Secretary of the Interior’s authority – quite the opposite: Any Upper Basin demand management program will be at the discretion and under the control of the respective states, implemented under state law.”

Representative Tom McClintock (R-CA 4th District) observed during the hearing, “we’d be well advised to show a little humility and defer do the judgment of the seven basin states.”  Congress heeded this advice.  On April 8, 2019, bipartisan legislation authorizing the US Department of Interior to implement the DCP easily passed through Congress, setting the Basin States up to accomplish their articulated goal of executing DCP agreements by April 22, 2019.  There is urgency to have legislation by the end of April because doing so will trigger the Water Scarcity Plan, which will allow the United States’ southern neighbor, Mexico, to store water in Lake Mead during the next water year, allowing operational flexibility of the Colorado River.  Last week, President Trump signed the bill, a mere week after the bill passed through Congress.

While the DCP is by no means a panacea, it keeps the door open for more constructive solutions and proactive river management.  As drought and the effects of climate change impact the Colorado River Basin, communities brace for a drier and less certain future, which will require innovation and likely lead to future litigation over water supply, water quality, ecosystems, and other issues.  The DCP is one of many efforts to proactively manage a multi-state resource and avert regional crisis.