WATER POLITICS

Over the past few years, negotiations over the Colorado River’s new operating rules occurred mostly behind closed doors, with little official record-keeping. But based on the public rhetoric, if you were to make a guess, Nevada would have seemed the least likely state to get the courts involved in the dealmaking.

For years, Nevada’s top Colorado River negotiator has repeated variations of this quote: “Anyone telling you we should pursue the litigation path, all they’re saying is they’re willing to roll the dice on your future, because they’re going to change out seasoned water professionals for nine people with black robes.”

Since the early 2000s, Nevada has earned a reputation for building consensus among water users and pushing a “silver buckshots” approach — one in which distributed conservation actions in communities across the basin add up to something greater. Las Vegas has become a model for taking this approach to conservation in its own backyard, significantly slashing per capita water use, giving it added credibility to bring groups together and urge others to cut. It was “Switzerland” in negotiations.

Now Switzerland is suing. After the federal government released a two-year operating plan for the river last month, Nevada wasted no time filing a lawsuit. Alan Halaly, at the Las Vegas Review-Journal, broke the story. Exactly what outcomes the case will lead to is hard to predict, but it marks a rupture in the governance status quo for the river.

As for why Nevada sued, it’s fairly straightforward. The federal plan, according to the state’s lawsuit, contemplated a scenario in which Nevada’s allocation could be cut by 71%. That would be a crisis. The Las Vegas metro area of roughly 2.5 million people gets 90% of its drinking water from the Colorado River. And such cuts could not be absorbed by turning down less essential uses (like fallowing lawns). There’s not much “extra” water to cut since Las Vegas has already invested in conservation. Cities on the Colorado River, in general, do not account for a majority of total use, but is especially true for Las Vegas, with Nevada having the smallest apportionment of all the states.

Through conservation, Las Vegas consumes less water than it did two decades ago, and not by a small amount. The Southern Nevada Water Authority reports reducing its consumptive use by roughly 40% and per capita use by 58%. These conservation measures rest on implementing many targeted policies (“silver bullets”): removal of decorative turf, lawn conversions, limits on pool sizes, “excessive use” rates, bans on evaporative cooling, and recycling indoor water. Indeed, regional water officials have been so serious about conservation that many of their new regulations have spawned lawsuits accusing the regional water purveyor of exceeding its statutory authority.

With that out there, a few notes on the substance of the lawsuit.

• This is a particular kind of Colorado River case. In interstate water conflicts, the U.S. Supreme Court has original jurisdiction, meaning it is the first judicial body to hear a dispute (hence the quote about “nine people with black robes.”) But, as of now, this is not that kind of case. Nevada is still rolling the dice, but not dice are not loaded to land right in front of the Supreme Court. Nevada is suing over a federal agency action, meaning the case starts in Nevada’s federal District Court.
• Right now, Nevada is the only state to have challenged the federal decision, but other parties could file lawsuits or seek to intervene, making it a bigger case. This week, the Central Arizona Project authorized litigation if necessary, which could take the form of intervening in Nevada’s case or a separate lawsuit.
• The claims largely focus on how the federal government applied two decision-making laws: the National Environmental Policy Act (NEPA) and Administrative Procedure Act (APA) in developing the new operating rules. Nevada alleges the government failed to follow the specific processes laid out in these laws, ignored reasonable alternatives and failed to fully analyze the consequences of its plan (“public health and safety…,” “impacts on Nevada arising from greater reliance on groundwater…,” etc…). These are typical claims stemming from cases involving federal environmental decisions, and federal district court judges in Nevada see them often, given that the U.S. government manages ~85% of the land in the state
• However, foundational rules governing the allocation of the Colorado River do matter here too. These rules, known as the Law of the River, represent a century of laws, agreements, statutes, and treaties. Nevada argues, as its first cause of action, that the federal government “failed to interpret and correctly apply the Law of the River,” listing all the places in the new rules obfuscated and hedged.
• What happens next is unclear. The uncertainty that comes with a lawsuit could incentivize collaboration and forge a path to a settlement. But it could also lead to conflict and a deeper departure from consensus-based governance (which already has been crumbling) — a reckoning between a centurry-old compact (in its many interpretations), and realities about how risk is distributed and water is used.
• That gets back to the point about the status quo. For the past two decades, the seven states that withdraw water from the Colorado River have avoided questions about how existing law allocates the cost of shortages. They’ve done this through voluntary cuts and compromises — with the help of federal funding. The status quo looked reactive, and it largely consisted of the seven-states negotiating on behalf of constituencies outside of the public’s eye. This system was imperfect, historically excluding Tribes at the table. When the state’s agreed, the federal government typically went along. This gave the state negotiators, collectively, immense power — if they could agree. Now we are finding out what happens when negotiations fail and voluntary cuts are not enough. The Colorado River lacks a formal basinwide governance system. Barring the existence of that, was some sort of lawsuit not the inevitable conclusion of failed negotiations all along? As Colorado River expert Doug Kenney pointed out last year, the “governance safety net” — among other safety nets on the river — has been “eroding.”
• How information flows: Litigation from one of the “principal” states could also mark a potential shift in how information flows across the Colorado River Basin. The states have liked to keep their discussions vague and outside of the public eye until agreements are close to finalized. The argument for doing so is that it allows for honest dialogue about hard tradeoffs. Litigation, on the other hand, features lots of very public filings that require parties to clearly articulate — then defend — a very specific position. In a lawsuit, everything has to be out there on paper, clear and in the public record. How information flows is probably a subpoint in this post, but it’s an important consideration in a basin with many users, nodes, and levels of governance. It caught my eye back in March that Nevada — one of the entities closest to the Colorado River talks — disclosed in a letter that it had to file a Freedom of Information Act request for records related to Glen Canyon Dam because it had not received the information from the federal government.