Watching the back-and-forth among the U.S. Department of Interior and the seven Colorado River Basin States over Glen Canyon Dam operations over the last few months, I’d been thinking that we’ve dropped into an area where the rules developed in 2007, and tweaked in the years since, no longer apply.
In short, if we use the reservoir operating rules the states and federal government negotiated back in 2007 (tweaked more recently by the ill-named “Drought Contingency Plan”), we drive Lake Powell below the level at which Glen Canyon Dam can generate electricity. Our only choice is to throw out the rules.
But speaking on the sidelines of the Stegner Center Colorado River Compact symposium last month, one of the smartest Colorado River lawyers I know corrected me. Because the rules were written in way that leaves Interior with an escape hatch. It’s Section 7.D of the Interim Guidelines:
The Secretary will base annual determinations regarding the operations of Lake Powell and Lake Mead on these Guidelines unless extraordinary circumstances arise. Such circumstances could include operations that are prudent or necessary for safety of dams, public health and safety, other emergency situations, or other unanticipated or unforeseen activities arising from actual operating experience. (emphasis added)
I still think my earlier observation has an element of truth. The decline in reservoir levels has dropped us into an area where the rules that were developed – a complex nested set of “if this, then that” rules where the this’s and that’s refer to elevations in Lake Powell and Lake Mead and annual releases from upstream to downstream – no longer work. By invoking the “extraordinary circumstances” clause – as Assistant Secretary Tanya Trujillo did in her April 8 letter to the states, and as the states did today in their letter written in response – the parties are agreeing to suspend the if-then’s and improvise.
But the ever-clever drafters clearly new bad shit was possible, and they were ready with the “extraordinary circumstances” clause.
I retain my admiration for the collaborative process of the seven states and Reclamation here. Holding everyone together for this rapid-fire reservoir management improvisational octet has been a truly impressive feat.
But given what has transpired, it’s worth looking back to the original purpose and need of the 2007 guidelines. In the supporting documents developed for the ’07 guidelines, Reclamation explained their purpose thus:
This action is proposed in order to provide a greater degree of certainty to United States Colorado River water users and managers of the Colorado River Basin by providing detailed, and objective guidelines for the operations of Lake Powell and Lake Mead….
“Greater degree of certainty”? In 2022, 15 years later, not so much.
At this point, no one knows what the fuck happens next.