Demand management: It’s a term that makes water users along the Colorado River nervous — and Colorado state lawmakers, too.
In May, the upper Colorado River Basin states (Colorado, Wyoming, Utah and New Mexico) and the lower-basin states (Arizona, Nevada and California) signed a drought contingency plan (DCP) intended to prevent wide-scale water shortages in the future. That agreement is to last through 2026.
Despite the above average snowfall and snowpack in the past year, it wasn’t enough to prevent cutbacks in water delivery to the lower-basin states.
Last month the Bureau of Reclamation, recognizing that Lake Mead would fall below critical levels in the next few months, announced that on Jan. 1, Arizona and Nevada must cut back on water supplies from Lake Mead, which receives its water from the Colorado River. Mexico also will take less water.
California will not curtail its water deliveries for now, although the DCP signed among the seven states says if Mead’s water levels continue to drop, California also will begin to cut back on its delivery of Mead water.
For now, the cutbacks along the lower basin states don’t have an impact for water users in the upper basin states. But that’s where demand management comes in.
The Colorado General Assembly’s interim water resources review committee recently took a look at a feasibility study underway with the Colorado Water Conservation Board.
The lower basin states have learned how to game the system, claimed Rep. Marc Catlin of Montrose during the Sept. 10 meeting. The waters of Colorado belong to the people of Colorado, he told CWCB Director Becky Mitchell. With regard to the DCP, Catlin said, those who worked on it signed confidentiality agreements, and as a result, the “people of Colorado have no idea what the hell is going on."
Mitchell, who was recently appointed the state’s representative on the Upper Colorado River Commission, replied that the commission would be more inclusive in the future and would find a way to include stakeholders, including the Colorado General Assembly.
Lawmakers' angst over the lack of inclusion dates back to when the state’s water plan was first being developed. Frustrated by a lack of input into the water plan, they passed legislation mandating hearings around the state to collect citizen input.
“Did you learn from that lesson?” asked Republican Sen. Don Coram of Montrose.
Democratic Sen. Kerry Donovan of Vail noted that at a recent conference of environmental legislators, it was pointed out that the DCP had to be approved by lawmakers in some of the states (notably, Arizona), and that the plans from some of the states were “mediocre” or “rushed.”
Brent Newman, who manages the water plan for the CWCB, said the lower basin states now recognize they have maxed out on the water they’re entitled to and are now working to find ways to conserve.
“They are planning for a future with less water,” Newman told the committee.
No such reductions in water deliveries are part of the upper basin states’ drought contingency plan, Newman explained.
The upper basin states have two “lines of defense” to protect its water, according to Newman. The first is a “drought response operations agreement.” The upper basin states would come up with a plan to move water to Lake Powell — the storage bucket for the upper basin states — should water levels drop to critical low levels. That would include water from the Flaming Gorge Reservoir in Wyoming, the Aspinall Unit (part of Blue Mesa Reservoir in Gunnison County), and Navajo Reservoir in northern New Mexico.
That comes with a cost — storing water in federally-owned Lake Powell isn’t free, Newman explained — but one that the Bureau of Reclamation is willing to waive if the four states can agree on how a demand management program would be operated.
Newman was careful to point out that the drought response operations agreement doesn’t obligate any state to participate in a demand management program or even commit Colorado to creating one.
“We’re asking if it’s appropriate,” he said.
If the droughts of the early 2000s return — Colorado's worst was in 2002 — then the second line of defense comes into play. That’s where a demand management storage agreement comes into play, intended to ensure the upper basin states remain in compliance with compact agreements.
The heart of a demand management program is that it be voluntary, temporary and that water users be compensated for conserving water, Newman explained.
“It’s not a permanent reduction in use, it’s not buy and dry for agriculture or a permanent reduction” in municipal water use, he said. Cities and towns would participate only on a volunteer basis.
An agreement across state lines, and the scale necessary, is unprecedented, Newman said, and the plan would be subject to immense scrutiny, including possible litigation.
“We don’t want to leave Colorado water rights in the hands of a special master or the U.S. Supreme Court,” he added.
That raised the eyebrows of Republican Sen. Jerry Sonnenberg of Sterling, who questioned how the U.S. Supreme Court would rule on the state's compacts.
“Are we worried that the Supreme Court would not hold our compacts to the letter of the law?” he asked.
The answer: uncertain, according to both Newman and Mitchell. But they also asserted that in the case of a compact call — which would be a mandatory cutback on water in the upper basin states — Colorado’s state engineer had said he would follow state law, and that’s the law of prior appropriation. That law says that water rights go to the first person who claims them. Most of Colorado’s water rights date back to the 19th and early 20th century.
“We have to make this determination of whether to have a demand management program within our own borders,” Newman added.
The other three states are doing the same, and all four have to agree to it, otherwise it’s a no go.
“This is a proactive approach and we hope we never have to use this pool of water” that would be stored in Lake Powell, he added.
Demand management is a big question, Mitchell added, and one that won’t be answered in this fiscal year.
And that snowpack from the winter of 2018-19? It raised water levels in Lake Powell by 20 feet, basically restoring the reservoir to levels from just two years ago.