Arizona Water agency director insists lawmakers can give him forbearance authority

The head of the state’s water agency insists that, contrary to the conclusions of a legislative attorney, lawmakers can authorize his department to “forbear” the use of water from the Colorado River.

Lawmakers have given the Arizona Department of Water Resources forbearance authority on three occasions in the last decade or so, said Tom Buschatzke, director of the Arizona Department of Water Resources.

Forbearance is the act of foregoing the withdrawal of water, typically associated with conservation efforts to keep water in Lake Mead, by an entity with the right to use it.

Lake Pleasant, located approximately 42 miles northwest of central Phoenix, serves as a reservoir in the Central Arizona Project /Photo courtesy of Central Arizona Project.

Ken Behringer, counsel for the Arizona Legislative Council, said legislators “almost certainly” cannot to authorize a state agency to forbear the use of water from the Colorado River.

Such an action, he said, would “infringe on the contract rights” of the Central Arizona Water Conservation District, which operates the 336-mile long CAP canal, and the U.S. Secretary of the Interior to control the use of waters in Lake Mead.

But Buschatzke said lawmakers authorized the ADWR director to forbear the use of water conserved in Lake Mead by California, Nevada and Mexico under what’s called the 2007 Interim Guidelines made between the United States and Mexico.

“That action by the Legislature to give the director forbearance authority is a clear cut indication that the Legislature can give forbearance authority. They’ve done it on three separate occasions,” he said, citing resolutions lawmakers approved in 2007, 2012 and 2017.

Buschatzke also said that Arizona law says any agreement made between the ADWR director and the United States or a state or government “involving a sovereign right or claim of this state is not effective unless approved by the Legislature by concurrent resolution.”

“Why would that statute exist … if the state didn’t have inherent rights under the 1944 contract?” he said, adding the other states also wouldn’t have entered into any agreements with Arizona if they didn’t think the state had no authority to act.

Information from Arizona Capitol Times

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