Legal water experts advised the need for states in the river basin to avoid litigation, a refrain others have made to states that draw water from the Colorado River.
By Alan Riquelmy, Courthouse News Service
The dramatic shifts in federal policy and law affecting places like the Colorado River basin is akin to a tennis game.
One political party has the ball for four to eight years, or more recently only four years, in the form of the presidency. Then the ball bounces to the other side and policy shifts wildly.
“We have a tennis match going on on top of a shifting glacier,” said Bret Birdsong, a law professor with the William S. Boyd School of Law at the University of Nevada Las Vegas.
That situation creates uncertainty for those in the Colorado River basin, whose leaders have a looming deadline next year to create new operational guidelines for the increasingly strained river. That uncertainty is fueled by recent U.S. Supreme Court decisions and policy changes by the Trump administration.
Birdsong and others described this shifting landscape at a panel on Wednesday, the second day of a three-day annual conference held by the Colorado River Water Users Association.
As an example, Birdsong pointed to the Chevron doctrine, recently upended by the high court’s 2024 Loper Bright v. Raimondo decision.
“It overruled what had been 40 years of precedent,” he said.
Instead of giving government agencies broad discretion in interpreting laws affecting them, Loper Bright gave that authority to the courts.
Days after the high court handed down the decision, it also decided Corner Post v. Board of Governors of the Federal Reserve System. Birdsong also considered that consequential, as it allowed certain plaintiffs to challenge statutes that previously were considered settled law.
Federal-level policy changes also have created uncertainty.
The Trump administration this year removed Council on Environmental Quality regulations, which dictated how agencies performed environmental reviews. The administration also is looking toward changing the interpretation of “harm” in the Endangered Species Act. Designating a species as endangered would become a question of science and economics, not just science, Birdsong said.
“There’s a whole tennis tournament going on in the [Waters of the United States] discussion,” he said.
Those waters, called “WOTUS,” are any that are considered navigable. Birdsong then explained the official definition of “navigable” — any that are part of WOTUS.
Uncertainty like this has led agencies and governments to attorneys for advice.
Samantha Barncastle, executive director of the Family Farm Alliance, said she’s told clients to have no kneejerk reactions and make no emotional decisions. Instead, they must remain strategic in their response to the changing legal landscape.
Barncastle also advised against trying to solve the problem of lower water flows by hurting another party. For example, fallowing farmer fields could solve the water issue, but lead to a food shortage problem.
Additionally, that move likely would cause someone to sue — a move several speakers at the water conference have adamantly advised against.
New rules for the river
Some attorneys advised a wait-and-see approach before taking action, though the states that comprise the Colorado River Water Users Association don’t have that option.
The river basin falls within seven states, each of which has a stake in water from the Colorado River. A 2007 agreement details how Lake Powell and Lake Mead, reservoirs in the river basin, are operated.
However, that agreement expires at the end of next year. The U.S. Bureau of Reclamation, working with the affected states, is drawing up a new environmental impact statement that will lead to an updated agreement starting in 2027.
The message from the federal government on Tuesday was clear: work together and compromise to meet a consensus on new guidelines for operating the Colorado River basin. And, perhaps more importantly, avoid suing each other.
“Time is of the essence,” said Andrea Travnicek, assistant secretary for water and science with the U.S. Department of the Interior. “The river will not wait for us.”
Officials anticipate releasing a draft environmental impact statement around the new year. They’ll then receive public comment, using that to create a final report around midyear.
Working together, the states can greatly shape that agreement. Or the federal government could impose one on them. Alternatively, and the least attractive option, is letting litigation forge the agreement, Travnicek said.
“We’re hoping that we can get to a consensus agreement,” Travnicek said.
Underlying the urgency is reduced flows from the Colorado River over the past 20 years.
When Carly Jerla left her home in the Rockies Wednesday morning for the water conference, the temperature hovered around 65 degrees at 6,000-feet elevation.
That doesn’t bode well for the future of water flow, said Jerla, senior water resource program manager with the federal Bureau of Reclamation.
Lake Powell saw its reservoir drop from 31% full in December 2024 to 28% full this month. While Lake Mead has remained somewhat steady around 33% full, uncertainty remains.
When reservoir levels fall below a certain point, the ability to generate power takes a massive hit.
This underscores the need for states to cooperate, enabling them to navigate the potentially dire situation they face in the future.
“Obviously, more robust measures are needed,” Jerla said, referring to the future agreement.
Scott Cameron, acting commissioner at the Bureau of Reclamation, said cooperation has worked well for the states in the past. Like his colleagues, he urged they seek compromise, accept shared sacrifice, and understand that litigation will only lead to lost time, resources and relationships.
“The time to act is now,” Cameron said. “That’s worth repeating: the time to act is now.”
