A group of states that use water from the Colorado River is proposing a new way to break the deadlock in negotiations about the river's future: bringing in a moderator.
After states blew through a mid-February deadline for a new plan about sharing the river's shrinking supply, the Upper Basin states of Colorado, Utah, Wyoming and Utah are calling for state leaders to return to the negotiating table and bring a moderator into the room.
"I really would like to see the swords laid down," Becky Mitchell, Colorado's top water negotiator, told KJZZ. "Particularly the threats of litigation. That creates a scenario where it's really hard to be creative."
Those upstream states have been entrenched in a yearslong debate with Arizona, California and Nevada over who should cut back their water use in response to a climate change-fueled drought that has sapped the Colorado River's supplies.
"I think that other folks that are not the seven states have talked about the need for a third-party mediator for a long time," said Elizabeth Koebele, who researches water policy at the University of Nevada, Reno. "I'm glad to see the seven states, or at least the Upper Basin states, potentially moving in that direction."
If states don't agree on a plan soon, the federal government will likely install its own. That could bring cutbacks to Arizona that local water leaders have called "devastating."
The move could trigger lawsuits from the states and end in a messy Supreme Court battle. With the federal government expected to issue a decision this summer, state leaders say they are still interested in avoiding litigation.
"Unsettling litigation across the basin will not create more water or more certainty for anyone in any industry in any state," Mitchell said. "So this is really trying to see if we can break any of the deadlock, set aside the legal theories and try to find a way to get to a deal."
Mitchell and other leaders from the Upper Basin states have, so far, dug in their heels on the idea that their states should not take any mandatory permanent water cutbacks going forward. It is largely based on a very particular interpretation of three words in a legal document from 1922.
Mitchell said the legal threats "go both ways."
"We have agreed, as part of the negotiation process, to set aside our litigation theories," she said. "I think that it's incredibly important that everybody do that if we work to come to some sort of agreement."
KJZZ reached out to the Arizona Department of Water Resources, but the agency was not able to provide a comment in time for publication.
Arizona leaders have previously spoken in favor of steering away from litigation, as have their allies in the Lower Basin. Earlier this year, Arizona's top water negotiator, Tom Buschatzke, said the desire to avoid litigation was the "strongest driver" in multi-state talks.
Elizabeth Koebele, the water researcher, said a combination of factors — the approaching deadline, a record-setting dry winter and the threat of legal action from their downstream counterparts — may finally be causing the Upper Basin states to back off from their refusal to take mandated cutbacks, and their call to return to the negotiating table with a mediator may be a way to put that into action.
"The hydrologic stressors and stressors from the federal government have come together and maybe put additional pressure on the Upper Basin to actually make some concessions," she said, "and they need a way to be able to do that in the policy process."
It is not clear exactly who would mediate state talks going forward. Upper Basin leaders said the federal government should participate in talks, but not mediate them. Colorado's Mitchell said the mediator should be chosen by all of the states involved.
Koebele said choosing one will be difficult because of longstanding rivalries among the states involved.
"Every organization could be — whether or not they really are — sort of framed in a biased way," she said. "And I think that's going to be challenging, to find a mediator that the basin states really trust."
It is not clear if or when the states plan to meet again. Mitchell said they had not held "substantial talks" since before the Feb. 14 deadline.
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