HJR2002 - 541R

Section 1. Resolution

Whereas, the State of Arizona's rights in the Colorado River were 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 United States is enjoined from apportioning more than 4.4 million acre-feet of Colorado River water for use in California if insufficient mainstream water is available for release to satisfy 7.5 million acre-feet of annual consumptive use in Arizona, California and Nevada; 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, section 602(a) of the Colorado River basin project act of 1968 limits the discretion of the secretary of the interior regarding the storage of water in and the release of water from Lake Powell; and

Whereas, the secretary of the interior exercises the authority to declare surplus and shortage conditions in the lower Colorado River mainstream, to reduce deliveries of water in the lower basin 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, effective for an interim period; and

Whereas, actual operating experience gained during the implementation of the December 13, 2007 Record of Decision, and emerging scientific information regarding the increasing variability and anticipated decline in Colorado River flow volumes demonstrate that those relying on water from the Colorado River system face increased individual and collective risk of temporary or prolonged reductions of unknown quantity to water supplies, with associated adverse impacts on the society, environment and economy of the Colorado River basin; and

Whereas, additional actions beyond those contemplated in the December 13, 2007 Record of Decision are necessary to reduce the likelihood of reaching critical elevations in Lake Powell and Lake Mead; and

Whereas, representatives of the seven Colorado River basin states and water entitlement holders within those states have developed drought contingency plans for the upper basin and the lower basin; and

Whereas, the lower basin drought contingency plan would require additional water delivery reductions in the lower basin beyond those provided for in the December 13, 2007 Record of Decision, including new water delivery reductions applicable to California; and

Whereas, Mexico and the United States have agreed that on the effectiveness of a drought contingency plan in the lower basin, Mexico will implement a binational water scarcity contingency plan in parity and alignment with the lower basin drought contingency plan; and

Whereas, the State of Arizona recognizes that the drought contingency plans for the upper basin and lower basin, in combination with the binational water scarcity contingency plan in Mexico, are likely to have a beneficial effect on the Colorado River system; and

Whereas, the State of Arizona recognizes that the provisions of the drought contingency plans for the upper basin and lower basin, in combination with the provisions of the binational water scarcity contingency plan in Mexico, are likely to improve the sustainability of the Colorado River system and reduce the risks of temporary or prolonged reductions to water supplies of unknown quantity to Arizona users of Colorado River water pursuant to long-term entitlements or contracts; and

Whereas, the drought contingency plan for the lower basin will be implemented through the Lower Basin Drought Contingency Plan Agreement; and

Whereas, implementation of certain provisions of the drought contingency plan for the lower basin will require modification of the 2007 Lower Colorado River Basin Intentionally Created Surplus Agreement, which modification is provided for in the Lower Basin Drought Contingency Plan Agreement; and

Whereas, the drought contingency plans for the lower basin and the upper basin will be implemented through the Agreement Concerning Colorado River Drought Contingency Management and Operations; and

Whereas, the effectiveness of the drought contingency plan agreements requires waiver by the state under certain conditions of:

1. The state's rights and claims under the decree of the United States Supreme Court in the matter of Arizona v. California as necessary to allow additional flexibility for the creation, accrual and delivery of intentionally created surplus, beyond those provided for in the December 13, 2007 Record of Decision, including allowing the delivery of more than 4.4 million acre-feet to California in a year and the delivery of intentionally created surplus to contractors in Arizona, California and Nevada during shortage conditions; and

2. The state's rights and claims under Section 602(a) of the Colorado River basin project act of 1968, as necessary to implement the upper basin drought contingency plan; and

Whereas, the drought contingency plans will be dependent on the enactment of federal legislation directing and authorizing the secretary of the interior to execute and implement the drought contingency plan agreements; and

Whereas, the effectiveness of the drought contingency plan agreements is dependent on approval by the Arizona legislature by 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 or claim 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, on June 28, 2018, the department of water resources and central Arizona water conservation district jointly convened a steering committee and public process to discuss and recommend how to adopt and implement the lower basin drought contingency plan in a way that is acceptable to Arizona water users. The steering committee included over forty delegates representing Arizona Colorado River water users, central Arizona project water users, cities, agriculture, developers, tribes, legislative leaders and other stakeholders. On January 8, 2019, the steering committee achieved general consensus on a plan to implement the lower basin drought contingency plan in Arizona.

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 and claims as described above for the benefit of the implementation of the drought contingency plans in the upper basin and the lower basin and the binational water scarcity contingency plan in Mexico 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 law, the State of Arizona, by and through the director of the department of water resources, may forbear its rights and claims as described above by entering agreements in substantial conformance with the draft Agreement Concerning Colorado River Drought Contingency Management and Operations and the draft Lower Basin Drought Contingency Plan Agreement if the director of water resources makes both of the following findings:

(a) Federal legislation is enacted directing the secretary of the interior to execute and implement agreements in substantial conformance with the draft Agreement Concerning Colorado River Drought Contingency Management and Operations and the draft Lower Basin Drought Contingency Plan Agreement.

(b) All parties other than the United States and the State of Arizona have authorized the execution of agreements in substantial conformance with the draft Agreement Concerning Colorado River Drought Contingency Management and Operations and the draft Lower Basin Drought Contingency Plan Agreement.

2. That, notwithstanding any other law, the State of Arizona, by and through the director of the department of water resources, may enter into an agreement in substantial conformance with the draft Drought Contingency Plan Contributions and Intentionally Created Surplus Accumulation Limits Sharing Agreement. The authority granted to the director of the department of water resources pursuant to this provision does not extend to any future agreements for the sharing of Drought Contingency Plan contributions and separate resolutions are required pursuant to section 45-106, Arizona Revised Statutes.

3. That the director of the department of water resources shall 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 water and agriculture and the house of representatives committee on natural resources, energy and water, or to their successor committees, on any agreement entered into pursuant to the authority granted by this joint resolution.

4. That the authority granted to the director of the department of water resources to enter into any agreement pursuant to this joint resolution expires on August 31, 2019.

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

Sec. 2. Emergency

This act is an emergency measure that is necessary to preserve the public peace, health or safety and is operative immediately as provided by law.