Colorado River states cheered this month when President Trump signed swiftly passed legislation ratifying a drought plan for the waterway.
But they could be in for a legal fight.
Some lawyers say the Drought Contingency Plan, or DCP, may be built on shaky legal ground and could be vulnerable to litigation — depending on how the Bureau of Reclamation implements it.
One California water district has already sued to block it.
At issue is whether it complies with the National Environmental Policy Act, or NEPA. Reclamation Commissioner Brenda Burman testified before Congress that the DCP is "designed to specifically fit within existing environmental compliance" (E&E News PM, March 28).
But for that compliance, Reclamation and the states are relying on a NEPA environmental impact statement (EIS) from 2007 — a dozen years ago.
Some question whether the DCP should have qualified for another review under NEPA, or at least a supplemental assessment.
"It is almost certainly true that the 2007 EIS is not adequate to flesh out the current impacts and alternatives for addressing the Colorado River drought," said Mark Squillace, of the University of Colorado Law School.
At its core, the DCP aims to safeguard the river’s two main reservoirs — Lake Powell on the Utah-Arizona border and Lake Mead on the Nevada-Arizona border — from crashing, an outcome that would have catastrophic outcomes for states’ water supply and the environment.
To do that, states are required to contribute water through cutbacks as the elevations of the reservoirs drop. That water then serves as a bank account or safety net if drought conditions continue.
The DCP is intended as an "overlay" on the river’s operating guidelines from 2007.
That’s where the NEPA question becomes complicated.
Reclamation and the states contend that because it builds on the 2007 analysis, the DCP does not constitute a new federal agency action that triggers a NEPA review.
Further, they say, the NEPA environmental review in 2007 analyzed the full range of effects the cutbacks in the new DCP will have on the environment and, in particular, on Lake Mead.
So, they say, it got the hard look NEPA requires.
How the DCP came to pass helps explain why Reclamation and the states sought to sidestep a NEPA review, said Brad Udall of the Colorado Water Center at Colorado State University.
DCP negotiations began in 2014 during a crisis as reservoir levels were plummeting. The idea, he said, was to quickly reach a new agreement among the states to avoid a catastrophic outcome.
"With that in mind, the idea that no EIS is necessary seems justifiable to me," he said.
But that’s not what happened. The basin states of Arizona, California, Colorado, New Mexico, Nevada, Utah and Wyoming couldn’t reach an agreement for a variety of reasons, and the process dragged on for five years.
That, Udall said, changes the calculus.
"When you look at it in retrospective," he said, "this was a major, significant action, and perhaps an EIS in an ideal world would have been justified or needed."
Udall acknowledged, however, that the states weren’t operating in an ideal world.
"It was a world in which you are juggling climate change, low river flows, difficult negotiations," he said. "To add an EIS on top of it probably would have killed it."
Udall also noted there are aspects of the DCP that differ from the 2007 guidelines that would seem on their face significant enough to trigger some sort of NEPA analysis.
Most notably, the overall reductions that states contribute under the plan jumped to about 1.45 million acre-feet. That’s more than double the total under the 2007 guidelines.
"That in and of itself is a huge change," Udall said.
Southern California’s Imperial Irrigation District, or IID, the largest single user of Colorado River water, has already filed a lawsuit questioning how California will meet its new obligations.
IID refused to sign the DCP due to concerns about how cutbacks could affect the nearby Salton Sea, a shrinking lake that is already spawning a public health and ecological crisis (Greenwire, June 20, 2016).
The Metropolitan Water District of Southern California voted to cover IID’s DCP obligations in order for California to sign on.
IID sued, arguing that vote violated the California Environmental Quality Act, or CEQA — the state’s version of NEPA — by not conducting an environmental review of how Metropolitan would cover those DCP shortage contributions, including where the water would come from (E&E News PM, April 17).
Others lawyers who have closely followed the DCP process said whether a NEPA analysis is needed will depend on what Reclamation does.
"We’ll have to see how they implement the DCP to then determine whether things fall within or outside the 2007 NEPA document," said Kim Delfino, an attorney and California program director at Defenders of Wildlife.
Reclamation’s discretion in carrying out the DCP was why Delfino and others raised concerns when draft legislation contained what many viewed as a provision exempting the agency from review under NEPA and other environmental laws (Greenwire, March 13). The waiver was removed from the legislation before it passed Congress.
Squillace of the University of Colorado Law School agreed.
"Anything the bureau does, pursuant to the legislation even, would be subject to NEPA," he said.
The agency appears aware of that.
"Reclamation worked closely with the Basin states as they developed DCPs and helped inform the parties of relevant environmental considerations," spokeswoman Theresa Eisenman said in an emailed response to questions.
"As the Act is implemented, Reclamation will continue to evaluate environmental obligations and take appropriate actions to meet applicable requirements of federal law," Eisenman said.
University of Utah College of Law Dean Robert Adler said Reclamation wouldn’t have needed to do a completely new NEPA analysis for the DCP. It could have done a supplemental one that added to the 2007 document.
Supplemental analysis is done when there is significant new information to update a previous analysis.
And for the Colorado River Basin, which has been in a drought for all 12 years since 2007, there is reason to suggest there is.
"The hydrology has changed significantly," Adler said. "And our understanding of the hydrology has changed significantly, so it strikes me that there is significant new information about the hydrology and a more robust hydrological record."
Reclamation did not directly respond to a question regarding whether it had considered a supplemental assessment under NEPA.
Adler said that is another reason to conduct some sort of NEPA analysis: transparency.
"As you know, these things tend to be negotiated behind closed doors among the basin states and the bureau," he said.
"NEPA is supposed to open up the process for the public to comment," Adler said. "The absence of supplemental NEPA analysis excluded environmental groups and others."