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Lawsuit could pose threat to newly approved multi-state drought plan

Tom Buschatzke, director of the state Department of Water Resources. (Howard Fischer/Capitol Media Services, file)

Tom Buschatzke, director of the state Department of Water Resources. (Howard Fischer/Capitol Media Services, file)

PHOENIX — Arizona’s top water official said Wednesday that a lawsuit filed by California’s Imperial Irrigation District could pose a threat to the newly approved multi-state drought contingency plan.

But Tom Buschatzke, director of the Department of Water Resources, said he’s not worried it will fall apart — at least not yet.

The lawsuit seeks to block California’s Metropolitan Water District, the largest wholesale supplier of treated water in the entire country, from signing the legal papers making it part of the drought plan.

What that would do is block MWD from providing its share of Colorado River water to keep Lake Mead from dropping below certain levels that would trigger even greater cuts in how much water could be taken from the river. And if there is a court order to that effect, Buschatzke said, that could undermine the deal among the states for how to divide up river water that serves 40 million people in the region.

That’s only part of the problem.

Under the terms of the drought contingency plan, Mexico agreed to reduce for the time being the amount of Colorado River water to which it is otherwise entitled, also to keep Lake Mead from reaching critical levels. But Buschatzke said that is contingent on the states on this side of the border reaching their own deal for how to divide up the shortfall.

“So it all fits together,’’ he said.

What makes all that critical is that if there is no new multi-state deal, that leaves in place prior agreements about how to handle anticipated shortages in the river. And Arizona, which has been a junior partner in those arrangements, likely would end up with even less water than what it is giving up in the plan.

That, in turn, could effectively invalidate all the deals among Arizona water users, negotiated over several years, to decide who gets how much.

“If there’s no DCP ... we have to see where we end up with the intra-Arizona implementation plan,’’ he said. The likely losers in that scenario would be Pinal County farmers who have the lowest claim on Colorado River water.

For the time being, however, Buschatzke is depending on the fact that, to date, there is no injunction against MWD becoming part of the multi-state deal.

“There’s been no action taken in California that I’m aware of that would actually prohibit Metropolitan from signing on,’’ Buschatzke said. “Just the filing of the action itself shouldn’t trigger any mandatory standing down by Metropolitan.’’

And unless and until that happens, he said, the drought contingency plan can be implemented.

“Today, as far as I’m concerned, we’re still moving forward to sign the interstate agreements,’’ he said,

The lawsuit, filed Tuesday in Los Angles County Superior Court, is based on what is essentially an intrastate dispute.

As originally crafted, the drought contingency plan would have required both the Imperial district and the MWD to each give up some of their water allocations.

Officials in the IID were willing to do that -- for a price: They wanted $200 million to help deal with environmental hazards being created by the shrinking Salton Sea. They contend that the failure to stabilize that inland sea, itself created by a breach in an irrigation canal, has left behind hazardous chemicals as the water evaporates.

When no deal could be reached with the irrigation district, the MWD agreed to step in and assume the cuts in supply that otherwise would have been taken by the Imperial district. That put the interstate deal in balance.

But what that also did, according to the lawsuit, is violate California laws which require that there first be a study of the environmental effects of the agreement. So the irrigation district’s lawyers are asking a California judge to void the Metropolitan district offer to supply water to balance the multi-state plan.

“I wouldn’t pretend to know the depth and breadth of what they have to analyze,’’ Buschatzke said of the environmental claims and how they fit into California law.

And what if MWD is barred from signing the agreement and provides no water for the deal?

“We will assess where we are with DCP at that point in time,’’ he said.

Buschatzke did provide members of the Senate Committee on Water and Agriculture some good news, at least for the time being.

He said that heavier-than-normal snowfall has led to greater flows into the upper ranges of the Colorado River.

That most immediately means the level of Lake Mead is not anticipated to drop next year to the level where cutbacks will become necessary. And that means that there will be no need to trigger the drought contingency plan and the various deals within Arizona of who has to give up what water.

But Buschatzke cautioned lawmakers that doesn’t mean there won’t be cuts, perhaps starting in 2021 instead of 2020.

“One year is not enough to get us out of the drought,’’ he said.

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