REFERENCE TITLE: lower Colorado basin; forbearance authority.

State of Arizona House of Representatives Fifty-third Legislature First Regular Session 2017

HJR 2002

Introduced by Representatives Barton: Bowers, Clodfelter, Cobb, Coleman, Cook, Finchem, Grantham, John, Mitchell, Nutt, Shope, Thorpe, Townsend, Senator Griffin

 

A JOINT RESOLUTION

 

approving forbearance by the state of Arizona, acting through the director of water resources for certain INTENTIONALLY created SURPLUS on the Colorado river arising out of cooperative projects in Mexico.

 

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 

Whereas, the State of Arizona maintains a sovereign interest in the water of the Colorado river, represented by the contract between the United States of America and the State of Arizona that was executed February 24, 1944 and ratified by the legislature in Laws 1944, chapter 4; and

Whereas, the State of Arizona's rights in the Colorado river were further confirmed by the decree of the United States Supreme Court in the matter of Arizona v. California, including the right to divert 2.8 million acre-feet of Colorado river water for consumptive use in the State of Arizona in normal years, plus forty-six percent of any surplus water made available by the secretary of the interior under the terms of the decree; and

Whereas, the secretary of the interior exercises authority with respect to the management of the Colorado river dams and reservoirs pursuant to the Boulder canyon project act of 1928, the Colorado river project storage act of 1956 and the Colorado river basin project act of 1968 and other acts amendatory or supplementary thereto; and

Whereas, the secretary of the interior exercises the authority to declare surplus conditions in the lower Colorado river mainstream and to make quantities of surplus water available to Colorado river water contractors under the terms of the decree in Arizona v. California; and

Whereas, on December 13, 2007, the secretary of the interior signed the Record of Decision; Colorado River Interim Guidelines for Lower Basin Shortages and the Coordinated Operations for Lake Powell and Lake Mead, which provides for a concept known as intentionally created surplus, in which a state can supplement the lower Colorado river mainstream and then divert additional lower Colorado river water as surplus; and

Whereas, the international boundary and water commission is considering adopting a minute entry that, among other things, would allow Colorado river entitlement holders in Arizona, California and Nevada to form partnerships with Mexico for the purpose of supplementing the lower Colorado river mainstream to create intentionally created surplus; and

Whereas, the secretary of the interior must adopt supplemental guidelines to allow Colorado river entitlement holders in Arizona, California and Nevada to create intentionally created surplus through projects located in Mexico; and

Whereas, diversion of the intentionally created surplus must be consistent with the decree in Arizona v. California, necessitating a forbearance of rights to intentionally created surplus water among lower division states; and

Whereas, the State of Arizona recognizes that benefits to the Colorado river mainstream accrue to Arizona water users from the supplementing of river supplies through intentionally created surplus, and no Arizona water user will be adversely affected by Arizona's forbearance of a portion of the intentionally created surplus added to the Colorado river mainstream; and

Whereas, the effectiveness of such forbearance agreements is dependent on approval by the Arizona legislature by concurrent resolution under section 45-106, Arizona Revised Statutes; and

Whereas, the State of Arizona must act both through the Arizona legislature and the governor by this joint resolution to forbear the exercise of a right accruing to the benefit of the state under the 1944 Colorado river water contract and the decree in Arizona v. California; and

Whereas, it is of critical importance to the State of Arizona to protect its interests in the water of the Colorado river because of the importance of the water supply to the agricultural, industrial, municipal and tribal water use sectors in this state; and

Whereas, it is in the best interest of the State of Arizona to authorize the director of the department of water resources to forbear its rights to use a portion of intentionally created surplus water arising out of projects in Mexico that further protect Arizona's interests in the water of the Colorado river under the conditions set forth in this joint resolution.

Therefore

Be it resolved by the legislature of the State of Arizona:

1.  That, notwithstanding any other provision of law, the State of Arizona, by and through the director of the department of water resources, may forbear its rights to the use of certain quantities of intentionally created surplus from the Colorado river that are created through partnerships between Colorado river entitlement holders in Arizona, California or Nevada and Mexico and that would otherwise be available for use within the State of Arizona under the 1944 Colorado river water contract and the decree in Arizona v. California, if the commissioners of the international boundary and water commission execute a minute to the 1944 Treaty between the United States of America and Mexico, in which Mexico agrees to reduce its deliveries of Colorado river water in the same years that deliveries of Colorado river water to Arizona are reduced due to shortage and which allows Colorado river entitlement holders in Arizona, California and Nevada to form partnerships with Mexico for the purpose of supplementing the lower Colorado river mainstream to create intentionally created surplus.

2.  That, notwithstanding any other provision of law, the director of the department of water resources, on behalf of the State of Arizona, is authorized to enter into an agreement in substantially the same form as the 2017 lower Colorado river basin forbearance agreement for binational intentionally created surplus to forbear the State of Arizona's rights to certain quantities of intentionally created surplus from the Colorado river that would otherwise be available for use in the State of Arizona under the 1944 Colorado river water contract and the decree in Arizona v. California.

3.  That if the director of the department of water resources finds that Arizona water users will not be adversely affected by the forbearance by Arizona of its right to additional intentionally created surplus, the director of the department of water resources, on behalf of the State of Arizona, is authorized to enter into additional agreements with lower Colorado river contractors to forbear additional intentionally created surplus, in substantially the same form and with substantially the same conditions as in the agreement authorized in the foregoing paragraph.

4.  That the director of the department of water resources promptly notify the president of the senate, the speaker of the house of representatives and the governor and provide a written report to the senate committee on natural resources, energy and water and to the house of representatives committee on land, agriculture and rural affairs, or the successor committees, on any agreement entered into pursuant to the authority granted by this joint resolution.

5.  That the authority granted to the director of the department of water resources to enter into an agreement pursuant to this joint resolution expires on December 31, 2017.

6.  That this action is being taken in response to unique and extraordinary circumstances.