Prepared Remarks: Summit County State of the River (May 24, 2022)

Thanks for the opportunity to join and talk about one of the most important challenges facing Colorado:  how we can best manage our water to best serve all of Colorado. This is not a new challenge, to be sure, and we are blessed with a history of strong leaders who have served as stewards of this most precious natural resource. As we look ahead, we know that we have important challenges that we must face head on. In my remarks today, let me reflect on a few of those challenges and how the Attorney General’s Office is approaching this crucial moment for Colorado.

The Immediate Challenges Facing the Colorado River

Let me begin with a topic on all of our minds:  how we can address the challenges facing the Colorado River. We are facing extraordinary circumstances in the basin that have revealed inadequacies under the existing guidelines. Finding solutions under those circumstances requires us to work on multiple levels. I’ll address three of them here today. First, I’ll explain what we’re doing in Colorado. Second, I’ll describe how Colorado and others are taking emergency action to address conditions in the basin. And third, I’ll suggest how we can develop long-term solutions to address the challenges facing the Colorado River.

What we are doing in Colorado

Over the last twenty years of drought, Colorado has learned to do more with less water. And in the process, Colorado has become a leader among the Upper Division States. In fact, with help from citizens across the state, including many of the folks in this room, Colorado moved quickly and effectively on its demand management feasibility investigation. So much so that we are now waiting for the Upper Colorado River Commission to catch up. We hope to complete that work this fall. It is important to remember that demand management is only one of many tools in our toolbox and that it addresses only one of our vulnerabilities on Colorado River–the risk of curtailment under the 1922 Compact.

Conservation is another important tool in our toolbox. Colorado has been a leader here too and an example for other states to follow. Colorado has already invested significantly in water efficiency and conservation programs. Indeed, we’re one of only a few states in the country that administers water rights according to water availability. Going forward, we are ready to build on this foundation, investing in efforts to improve water measurement and delivery infrastructure in the Upper Division States through the federal Bipartisan Infrastructure Act.

How Colorado and others are taking emergency action to address conditions in the basin

Addressing the extraordinary circumstances in the basin requires both short and long-term solutions. In the short term, we need to make sure we can responsibly manage our limited water resources in the Colorado River. To that end, we have been working on another element of the Upper Basin Drought Contingency Plan–the 2022 Drought Response Operations Plan. Working with the other Upper Division States, the Upper Colorado River Commission, and the Bureau of Reclamation as well as with Tribes, water users and NGOs, we were able to finalize the 2022 Plan. And on May 6, 2022, the Secretary of the Interior approved the plan. That was an important accomplishment.

The goal of the 2022 Plan was to maintain critical elevations at Lake Powell to protect infrastructure and municipal water supplies. Under the 2022 Plan, 500,000 acre-feet of water from Flaming Gorge Reservoir will be released to Lake Powell in addition to the 161,000 acre-feet released from the Flaming Gorge and Blue Mesa Reservoirs in 2021. Importantly for Coloradans, no releases from Blue Mesa Reservoir are currently included in the 2022 Plan.

What this all means is the Upper Basin will have released a total of 661,000 acre feet of water to protect the overall system. That’s a huge contribution of water.  Just consider that this contribution represents around 15% of our annual consumptive uses in the Upper Basin. Although it is significant, it is not, and cannot be, a long-term solution.

I recognize that it may well take years for the Upper Basin Reservoirs to recover from the releases called for in the 2022 agreement. Beyond this short-term solution, it will be critical to consider how to best manage depleted storage and impacts to hydrology due to climate change. This is a point that Andy Mueller has repeatedly emphasized–the challenges of climate change are readily apparent for those involved in water management.

As I emphasized in my December remarks to the Colorado River District, the Lower Basin is now confronting extraordinary circumstances. To that end, we understand the Lower Basin is also developing a plan, known as the 500+ Plan, in which they will leave 500,000 acre feet in Lake Mead each year for the next two years to deal with depleted storage in Lake Mead. We look forward to hearing how that 500+ plan develops.

In addition to the 2022 Plan, the Department of the Interior also approved additional actions to protect dam operations, facility reliability, hydropower operations and health and public safety concerns. In particular, the Secretary will reduce the annual release volume from lake Powell to Lake Mead from 7.48 million acre-feet to 7.0 million acre-feet – a 6.5% reduction to the annual release for water year 2022. And while the Colorado River Basin States recognize the Secretary’s authority to take such actions, the Basin States requested the Secretary include protections to avoid outcomes that would negatively impact the Basin States’ interests and positions. That proposal, including the adoption of the protections recommended by the Basin States, was finalized on May 6, 2022. These are significant and meaningful actions that the Upper Division States and the Secretary of the Interior took together in order to protect Lake Powell in the short-term.

But the framework in place is only a temporary solution designed to protect Colorado and the other Upper Division States through April 2023 by preserving the benefits to Lake Powell under the 2022 Plan and the Secretary’s reduced release. Because that solution is temporary, we must confront our challenges to find long-term solutions.

How to develop long-term solutions for the Colorado River.

The long-term solutions we need will require addressing head-on the imbalance between depletions and available supplies across the basin. In short, we all must recognize that the risks to Lake Powell are due to on-going drought, climate change, and depleted storage. We must also recognize that depleted storage in Lake Powell is largely the result of releases to meet needs downstream in Lake Mead, the Lower Basin, and Mexico.

As we look back at the last twenty years, it is clear that the Lower Basin states were able to avoid recognizing the changing water picture because they have been able to draw down water from Lake Mead (and Lake Powell) directly above them. Their ability to do so reflects a limitation of the 2007 Interim Guidelines. Those Guidelines allowed the Lower Basin’s consumptive uses to increase and deplete Lake Powell and Lake Mead to avoid shortages in the Lower Basin.

To appreciate what this means, let’s examine the basic math of the situation. At present, the Upper Basin currently consumes 3 million acre-feet less than its compact apportionment. This is driven largely by the last 20 years of drought and the absence of large reservoirs upstream to supplement low snow fall. When demand outpaces the availability of natural supply, as it often has in the last 20 years, Colorado administers water rights according to priority administration. Which means the Upper Basin has borne the brunt of this drought.

By contrast, the Lower Basin consumes far more than its apportionment. Rather than administering water rights and limiting uses to available supply from Lake Mead during the last 20 years, they released more water from Lake Mead and, in turn, Lake Powell. Alas, that option no longer exists and now the Lower Basin will need to meaningfully address its overuse.

But there is good news to look forward to. We have the opportunity to learn from the experience under the 2007 Interim Guidelines and make the next set of reservoir operating rules better for all of the Basin States. Our team at the Attorney General’s office is prioritizing this critical work and working closely with Commissioner Mitchell.  And we are committed to listening to, learning from, and working with you to inform our next steps. This includes providing support for on-going negotiations throughout the development of the post-2026 reservoir operating rules while concurrently preparing for litigation should that become necessary. Indeed, we obtained two new positions from the General Assembly—with the support of the Colorado River District—because of the importance of this work.

This work is informed by a set of goals that are designed to protect Colorado’s significant interests in the Colorado River which include:

  • Creating additional water supply security;
  • Addressing overuse in the Lower Basin;
  • Avoiding risk of curtailment in the Upper Basin;
  • Improving operations at Lake Powell and Lake Mead;
  • Supporting coordination with Mexico; and
  • Maintaining compliance with established federal environmental law.

Each of these goals is rooted in the existing legal and regulatory framework that was established by the Colorado River Compact and further developed by the laws and agreements that make up the Law of the River. Any new operating rules must ensure that the interstate Compacts (1922 and 1948) and the international treaty (1944) continue to form the foundation operations at Lake Powell and Lake Mead. They rules must also recognize the States’ exclusive roles and responsibilities in the Colorado River Basin and also balance depletions against available water supply. In a world where we are vulnerable to risk and face increasing hydrologic variability across the Colorado River Basin, we can longer allow the Lower Basin to deplete the basin’s savings.

Managing Water Within the State of Colorado

The question of how we relate to neighboring states is connected to how we in Colorado work together to manage water within our state. As we deal with increased hydrologic variability and increasing demands within our state, we need to start with a spirit of “we are all in this together.” As we plan for the future in Colorado, there will be temptations and proposed short-term strategies to pit communities against one another. We cannot allow these impulses to succeed. Rather, we should pursue the path of collaboration and a shared commitment to innovation.

The Colorado Water Plan encourages Colorado to avoid wholesale “buy and dry” plans for many of these same reasons. But unfortunately, the insistence of the Colorado Water Plan does not end the threat. Indeed, we currently have an example of a misguided plan being considered by Douglas County. In particular, a company called Renewable Water Resources is pitching Douglas County on spending federal recovery dollars on infrastructure to ship water from the San Luis Valley to Douglas County. And, yes, this proposal comes at a time when the Valley’s aquifer is already depleted.

I have made clear that the Renewable Water Resources plan is dangerous and I will fight it. As you all appreciate, this fight is not only about the San Luis Valley, but about how we manage water in Colorado. My commitment is that we need to do the right way, making sure that we consider the impact on all communities. This proposal flunks that test. And to support the Valley and other communities potentially facing misguided plans, I have made our office available, including to consult on how the use of 1041 authority or relevant alternatives can help communities protect themselves from plans that take advantage of rather than support them.

* * *

The history of Colorado leaders who served as effective stewards of our water have paved the way for us to rise to this moment. As captured in the Colorado Water Plan, we have a roadmap for the word ahead—investing in collaboration and innovation to develop new strategies to meet the challenges we face. Our office is committed to being a part of that work and recognizes the importance of getting it right. Thank you for being a part of this project. –PW

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