The Biden Administration released new proposed regulations this month that would potentially change how much Colorado River water that Arizona, California, and Nevada receive over the next two years and in the face of the persistent drought.
Amid the national commentary surrounding those proposals—contained in the Bureau of Reclamation’s 476-page Draft Supplemental Environmental Impact Statement (SEIS)—there are four concepts to remember regarding its role in the future of the Colorado River.
- The Bureau of Reclamation has been broaching changes to Colorado River management since the mid-2000s.
Inherent to the draft SEIS is the premise that Reclamation—at the direction of the Secretary of the Interior—has the authority to make such modified guidelines, which may include significant water curtailments to downstream Lower Basin (Arizona, California, and Nevada) users.
Reclamation created the draft SEIS as part of its process to amend guidelines for Colorado River management. These guidelines govern Reclamation’s operation of the Glen Canyon and Hoover Dams and the attendant water releases from Lake Powell and Lake Mead, respectively. In 2007, Reclamation concluded an environmental review process with the aim of conserving water within the basin and providing water users with greater certainty about the “timing and volumes of potential water reductions.” The result, which included a Final Environmental Impact Statement, became the 2007 Interim Guidelines, named so because Reclamation intended for them to be in place for a limited time—through 2026. But worsening conditions accelerated Reclamation’s timeline to review its practice for releasing water down river, prompting the “supplemental” environmental review process and accompanying impact statement.
Notwithstanding the legal challenges that may arise from unilateral Reclamation cuts, that authority is not necessarily the aim of the draft SEIS.
- It’s still a draft, and its proposals can be modified—or Lower Basin states may adopt their own approach to water cuts.
When the draft was released, headlines intimated that the White House was “getting ready” to “put aside legal precedent” by making cuts evenly among the lower-basin states. Such a lede, however, only scratched the surface of the story.
The three proposed options in the draft SEIS are Reclamation’s intercession into stalemated negotiations among the Lower Basin states, which have also taken official action to conserve since 2007. Deputy Interior Secretary Tommy Beaudreau even stated, “It is our hope and our fervent desire that the tools laid out in the [draft SEIS] never have to be used.” The federal government still wants the river basin state governments to come up with their own, mutually agreed upon solution for curtailments because joint agreement would have greater buy-in than federally imposed reductions. To that end, the 45-day public comment period that started on April 14 provides more time for the states to negotiate their own agreement. Furthermore, the administration has no preferred alternative among the options presented in the draft SEIS.
- The Bureau of Reclamation wants to keep the Glen Canyon and Hoover Dams operable.
Reclamation is of course the authoring agency here: it operates the reservoirs and facilities at the Glen Canyon and Hoover Dams that provide electricity to millions in the Southwest. Amid the focus on water deliveries, it can be easy to forget that maintaining Reclamation facilities is at the heart of the agency action. But the framing of the three options is essential to the issue here. Reclamation’s number one interest is to keep the dams operating under any runoff conditions.
The information common to the three alternatives illustrates this Reclamation imperative. The draft SEIS “does not analyze the operations of the entire Colorado River system; rather, it focuses on only addressing the low-runoff and low-level conditions at Glen Canyon and Hoover Dams.” Reclamation notes its focus on keeping Glen Canyon Dam operational despite the “reasonably foreseeable” outcome that Lake Powell declines below a critical water elevation necessary to maintain operations between 2024 and 2026. If Lake Powell falls below that critical elevation, Reclamation notes that “[i]n any such an event, at any given time, Glen Canyon Dam would be operated with all available river outlet works.”
- None of the proposed options are meant to be long-term solutions.
As the title of the draft SEIS indicates, Reclamation crafted options for the drought emergency that would apply only to operations over the next couple years. Both Action Alternatives, which chart scenarios for potential curtailments to Lower Basin water deliveries, model “progressively larger additional shortages”—but only through 2026. And the modeling for 2024 limits shortages and offsets from recent drought contingency plans to the volume that was analyzed under the 2007 Interim Guidelines process. As others have noted, the federal government has proposed curtailments under the Action Alternatives that are actually less voluminous and slower than recent proposals from the Basin states. While the purpose and need of the SEIS is convenient cover, this limitation may also fend off short-term legal challenges if the basin states fail to reach consensus on other cuts.
With its focus on conditions through 2026, the draft SEIS avoids long-term alternatives. The agency acknowledges that it did not consider a worst-case drought alternative because its modeling addressed potential run-off conditions for the next two years. It also set aside any proposals to decommission one or both of the major dams because that would be outside of the scope of the process for dam operating guidelines and “would not comport with existing Colorado River law requiring that allocation, appropriation, development, and exportation of the waters of the Basin be consistent with Congress’s clear direction to the Secretary to operate Glen Canyon Dam under the Law of the River.”
Whatever the path forward as the year continues, Reclamation is unlikely to recommend putting itself out of a job along the Colorado River. The draft SEIS is a significant milestone in a changing dynamic in the Basin, but operational continuity is paramount to Reclamation.
 See Supplemental Environmental Impact Statement for Near-Term Colorado River Operations, U.S. Bureau of Reclamation, https://www.usbr.gov/ColoradoRiverBasin/SEIS.html (last visited Apr. 19, 2023).
 Arizona v. California, 373 U.S. 546 (1963) (holding that Congress apportioned the Lower Basin's allocation of Colorado River water via the 1928 Boulder Canyon Project Act and the Secretary of the Interior had authority to effect that apportionment and set standards during shortages), judgment entered sub nom. Arizona v. California, 376 U.S. 340 (1964), amended sub nom. Arizona v. California, 383 U.S. 268 (1966), and amended sub nom. Arizona v. California, 466 U.S. 144 (1984).
 U.S. Bureau of Reclamation, Dep’t of the Interior, Near-Term Colorado River Operations Draft Supplemental Environmental Impact Statement, Part 1.5 (2023) [hereinafter Draft SEIS].
 Draft SEIS, Part 1.1.
 See Philip Womble, The Coming Months in the Colorado River Basin, Stanford: Water in the West (Apr. 14, 2023), https://waterinthewest.stanford.edu/publications/coming-months-colorado-river-basin.
 Christopher Flavelle, White House Suggests Colorado River Cuts Be Spread Evenly Among States, N.Y. Times (Apr. 11, 2023), https://web.archive.org/web/20230411181516/https://www.nytimes.com/2023/....
 Brandon Loomis, How Colorado River States Would Share Water Cuts Under New Federal Proposal, Ariz. Republic (Apr. 11, 2023), https://www.azcentral.com/story/news/local/arizona-environment/2023/04/1....
 Draft SEIS, Part 2.2.
 Id. at Part 1.5.
 Id. at Part 2.5.
 Id. at Part 2.7.
 Deadpool Diaries: Tapping the Brakes on Colorado River Cuts, JFLECK AT INKSTAIN (Apr. 11, 2023), https://www.inkstain.net/2023/04/deadpool-diaries-tapping-the-brakes-on-colorado-river-cuts/.
 Brandon Loomis, 6 Colorado River States Submit a Plan to Cut Water Use, but California Says ‘No Deal,’ Ariz. Republic (Jan. 31, 2023), https://www.azcentral.com/story/news/local/arizona-environment/2023/01/31/colorado-river-states-minus-california-pitch-conservation-plan/69859286007/.
 Draft SEIS, Part 2.9.7.
 Id. at Parts 2.9.2, 2.9.4.