‘Alarming’ Colorado River Cuts Plan Seen as Tactic to Spur Talks

Bloomberg Law (April 12, 2023) A proposal for mandated Colorado River water use cuts outlined by the Interior Department this week is intended to show the extremes of possible federal action to spur states to reach a water conservation agreement themselves and avoid litigation, negotiators and water law watchers say. But if the Biden administration moves ahead with either of its proposals for forced water cuts, litigation is nearly inevitable, and would likely reach the Supreme Court. The scenarios appear designed to “motivate parties to find common ground between two extremes and avoid litigation that otherwise might result,” said David Osias, a partner at Allen Matkins Leck Gamble Mallory & Natsis LLP in San Diego.

Interior officials said they want the states to reach an agreement, but if they can’t, the bureau envisioned two possible ways it could force water use cuts beyond the status quo. The first is to follow established law and mandate cuts in Nevada, Arizona, and California according to existing water rights priority. Under the second option, the bureau would force all Colorado River water use in those three states to be cut by a certain percentage, straying from established legal precedent in the process. But the second option “will generate litigation of substantial importance,” Osias said. That option undermines a federal law that stipulates that California’s rights to Colorado River water take priority over Arizona’s, he said, adding that there is little legal precedent for a flat cut. Read More (subscription required)