Sine die another day

Allow me to lay out a theory, supported by some evidence.

Arizona lawmakers have a unique responsibility among their peers in the seven states of the Colorado River basin: When the states and federal government agree on a plan to manage the river, the Arizona Legislature has to vote on it.

And lawmakers may soon be exercising that responsibility. On Friday, the U.S. Bureau of Reclamation will likely publish its record of decision — in other words, its final plan for river and reservoir operations over the next decade.

This plan needs to be in place by the beginning of the next water year — basically a hydrologic fiscal year — on October 1. So, at least in theory, the Arizona Legislature will need to vote on the plans in early fall at the latest.

The hitch is that the Legislature adjourned sine die more than a month ago, and won’t be back for a regular session until next January.

So it seems lawmakers will need to convene in a special session in order to vote on the future of the Colorado River ahead of an impending deadline.

And I’m not baselessly speculating. An Arizona Department of Water Resources official told the Agenda that a special session to vote on at least parts of the river management plans is “very likely.”

In particular, the official said, if the new deal includes any changes to a water banking program developed out of an agreement between the three Lower Basin states, lawmakers will need to weigh in.

And those changes are likely. As we discussed in a recent edition, reforms to the program, called Intentionally Created Surplus, are at the heart of a shortage-sharing agreement among the Lower Basin states of Arizona, California and Nevada. Without that agreement, future river management plans will likely subject Arizona to overwhelming cuts to its supply of Colorado River water.

A department spokesperson was a little more circumspect.

A spokesperson for Democratic Gov. Katie Hobbs said the governor has no comment on the prospect of a special session.

That said, Tucson Sen. Priya Sundareshan, one of the Democrats most active in legislative water policy debates, told the Agenda that she had certainly heard the prospect of a special session floated.

There are two mechanisms for convening a special legislative session. Either lawmakers can call themselves back to the Capitol with a two-thirds vote, or the governor summons them.

In the latter case, the governor can strictly limit the type of legislation that lawmakers consider during the special session. That seems to be the likely path here, as it reduces the chances that partisan or regional politics derail needed votes on any river agreements.

But maybe I’m getting a little ahead of myself, because there’s a chance that lawmakers won’t need to meet at all. The Legislature’s role is laid out in A.R.S. § 45-106, which says:

That’s what the Legislature did in 2019, when it ratified the Drought Contingency Plan.

But the state may not necessarily be entering into an agreement with either another state or the feds involving a water right or claim.

As ADWR director Tom Buschatzke, Arizona’s chief Colorado River negotiator, has repeatedly said, he’s only going to present the Legislature with a deal if it’s a deal worth supporting — in other words, one that doesn’t completely sacrifice central Arizona’s supply of Colorado River water to bring some balance to the overtaxed river and its plummeting reservoirs.

And while we don’t know exactly what the federal government is planning, we have a pretty good sense of two things: One, instead of a long-term plan, it will be a 10-year plan with five, two-year phases, and two, the feds plan to impose cuts on the Lower Basin states, especially Arizona. That’s why the state has been negotiating a shortage-sharing agreement with its Lower Basin neighbors, particularly California, which would volunteer to take cuts before it would otherwise need to under such a deal.

The three states have presented a tentative version of the deal, but negotiations between each other and the federal government are ongoing. If adopted, the idea is that the three-state deal would cover the first two-year phase of the 10-year plan.

According to recent interviews with unnamed officials by the Los Angeles Times’ Ian James, the feds have agreed to implement much of the plan. (Read James’ story for more well-informed tea leaf reading about the future of the river and its management. And read our past reporting on the three-state deal here.) Assuming that’s true, I can’t see how lawmakers wouldn’t have to meet in a special session to vote on any new interstate arrangements.

There are clearly a lot of “ifs” being deployed here. While drought is certain, how the states and federal government will respond to these historic conditions is less so. In the worst case, the ADWR official told us, the federal plans don’t reflect any kind of interstate deal with Arizona, or the deal is so odious that the state won’t accept it, and lawmakers don’t need to meet at all. In this scenario, Arizona and much of the rest of the basin states will probably be busy suing the pants off each other and just about anyone else with a competing claim to the river.

But if there’s a deal that the state at least partially agrees to, “there would need to be some kind of special session called by October 1,” the official said.

It’s not immediately clear to me what happens if lawmakers don’t approve a deal. The federal government believes it has the right to dictate reservoir operations in the Lower Basin regardless of buy-in from the individual states, and Arizona has been a late-comer in the past. The state famously didn’t ratify the 1922 Colorado River Compact until the 1940s, when local leaders realized they would need support from the federal government and from California to build a massive diversion to bring water to the state’s burgeoning population centers — what would become the Central Arizona Project.

While the Arizona Legislature’s role in Colorado River planning is unique, it isn’t the only government body that has to sign off on any agreements. The board of the Metropolitan Water District of Southern California, among other entities, also has to weigh in.