A PROFESSIONAL CORPORATION One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 P 602.440.4800 F 602.257.9582 Offices in Arizona & Colorado www.rcalaw.com Sheryl A. Sweeney Direct Line: 602-440-4824 Direct Fax: 602-257-6924 Email: [email protected] Samuel L. Lofland Direct Line: 602-440-4899 Direct Fax: 602-257-6999 Email: [email protected] November 6, 2017 Via Email [email protected] and U. S. Certified Mail Arizona Department of Water Resources Attn: Sharon Scantlebury, Docket Supervisor P. O. Box 36020 Phoenix, Arizona 85067-6020 Re: Mohave County Water Authority Comments In Opposition to the Town of Quartzsite’s Proposed Lease and Transfer of 1,070 acre-feet of its Arizona Fourth Priority Colorado River Water Entitlement to Central Arizona Water Conservation District (the “Proposed Entitlement Transfer”) and Request for an Extension to the Public Comment Period Dear Ms. Scantlebury: Ryley Carlock & Applewhite represents and submits the following comments on behalf of the Mohave County Water Authority (“MCWA”). On October 6, 2017, the Arizona Department of Water Resources (“ADWR”) published a “Notice to All Interest Parties Regarding Arizona Colorado River Entitlements,” in which it requested comments to be submitted no later than 5:00 p.m. on November 18, 2017. However, November 18, 2017, is a Saturday; consequently, we spoke with you and were advised that the comment period was going to be extended to 5:00 pm on November 20, 2017 We note at the outset that MCWA asserts that approval of the Proposed Entitlement Transfer will have negative impacts on it and on other Colorado River entitlement holders. We assume that, consistent with ADWR’s Policy and Procedure for Transferring an Entitlement of Colorado River Water (the “Colorado River Transfer Policy”), prior to making any recommendations to the United States Bureau of Reclamation (“BoR”), ADWR will provide ninety (90) days “for the parties to attempt to resolve or mitigate the claimed impacts.” Colorado River Transfer Policy at p. 7, available online at http://www.azwater.gov/AzDWR/StatewidePlanning/CRM/documents/SubstantivePolicyStat ement%20CR8.pdf (last visited November 6, 2017). We further note that MCWA will be submitting additional comments at the conclusion of the public comment period. We are providing these initial comments to identify what we consider fatal flaws in the current “Request for Consultation on Proposed Lease and Transfer of the Town of Quartzsite’s 4285902.3 11/6/17 Ms. Sharon Scantlebury November 6, 2017 Page 2 Colorado River Entitlement to the Central Arizona Water Conservation District” (the “Application”). Central Arizona Water Conservation District (“CAWCD”) is seeking to transfer 1,070 acre-feet (“AF”) of the Town of Quartzsite’s (“Quartzsite”) Fourth Priority Colorado River entitlement from the mainstem of the Colorado River for use in Central Arizona (previously defined as the “Proposed Entitlement Transfer”). On the mainstem of the Colorado River there are several Fourth Priority Colorado River entitlement holders, including MCWA. See e.g. “Listing of Individual Water Entitlements in the State of Arizona – Fourth – Priority,” available online at https://www.usbr.gov/lc/region/g4000/contracts/entitlements/AZtable4.pdf (last visited November 6, 2017); “Arizona Colorado River Water Use Present Perfected Right Holders and Contractors Listed Alphabetically,” available online at http://www.azwater.gov/AzDWR/StateWidePlanning/CRM/documents/2015%20Arizona%20 Priorities_Alpha.pdf (last visited November 6, 2017). 1 A total of 5 of these Fourth Priority Colorado River entitlement holders are members of MCWA. These Fourth Priority Colorado River entitlement holders, like MCWA, have come to rely upon current Colorado River conditions, recognizing that in the midst of historic drought water supplies continue to diminish. As it stands, there is inadequate water available to meet all needs. CAWCD would have ADWR believe, with citation to no technical or factual support, that the Lease 2 and Application would cause no change to the current water supplies available to those that rely upon the Fourth Priority mainstem Colorado River entitlements. This assertion is baseless. In reality, CAWCD seeks to relocate 1,070 AF of water that is currently unused, i.e., has zero consumptive use, in a manner that will significantly impact MCWA and other Fourth Priority mainstem Colorado River entitlement holders. Ultimately, if Quartzsite does not need its Colorado River entitlement, it should be surrendered for reallocation amongst the other Fourth Priority mainstem users. CAWCD and Quartzsite should not be allowed to take a portion of the Fourth Priority Colorado River water that was reserved for on-river municipal and industrial (“M&I”) use and repurpose it for use in Central Arizona. The original contract between BoR and Quartzsite for the delivery of Colorado River water (the “Initial Contract”) was entered into January 28, 1999. The Initial Contract could have been terminated by BoR if Quartzsite had not completed its water delivery system and beneficially used its Colorado River entitlement in the Quartzsite service area by January 28, 2014 (15 years). A copy of the Initial Contract is attached as Appendix A. The Initial Contract was amended October 20, 2015, (“Amendment No. 1”) to extend the beneficial use deadline to January 28, 2029 (another 15 years). A copy of Amendment No. 1 is attached hereto as Appendix B. 1 All citations to websites and appendices herein are fully incorporated into this comment by reference as though fully stated herein. 2 As used herein the term “Lease” shall mean the “Water Right Lease Agreement Between the Town of Quartzsite and the Central Arizona Water Conservation District” attached to the Application. Ms. Sharon Scantlebury November 6, 2017 Page 3 The Lease is for a term of twenty-five (25) years, renewable automatically for an additional twenty-five (25) years. The earliest that the first 25-year term could expire is 2042, which is 13 years after Quartzsite’s deadline to put its Colorado River entitlement to beneficial use in Quartzsite’s service area . Quartzsite has indicated that it may need its Colorado River entitlement, if at all, sometime after 2030; though, even in 2030, Quartzsite has indicated that it has an adequate water supply from groundwater. Request for Consultation on Proposed Lease and Transfer of the Town of Quartzsite’s Colorado River Entitlement to the Central Arizona Water Conservation District, pp. 1, 3-9 , available online at http://www.azwater.gov/AzDWR/StatewidePlanning/CRM/documents/Quartzsite_CAWCD- Transfer-and-lease-Application-8_2_17.pdf (last visited November 6, 2017). If CAWCD is allowed use of Quartzsite’s Colorado River entitlement for fifty (50) years, Quartzsite will be forced to develop alternative water infrastructure and supplies to meet its needs. Id. Consequently, at the end of the Lease, Quartzsite will very likely have no need for its Colorado River entitlement and will, in all reality, enter into another arrangement with CAWCD. See the Application at p. 10 (“Upon conclusion of the lease, CAWCD will seek to extend the lease with Quartzsite . .”). As such, this is a “lease” in name only, and CAWCD and Quartzsite have concocted a plan to permanently convey Quartzsite’s Colorado River entitlement without having to disclose or justify the permanent transfer for full consideration by ADWR, stakeholders, other mainstem Colorado River entitlement holders and the public at large. Summarily, this is an unprecedented request by CAWCD that flies in the face of the well-established practice and policy of the State of Arizona to ensure: (1) those communities on the mainstem of the Colorado River, and the Arizona residents living there, have an adequate water supply for current and future M&I uses and (2) that wet water, not unused water, is actually being transferred. I. The Transfer is Unprecedented and Inconsistent with the Colorado River Transfer Policy. a. Quartzsite’s Fourth Priority Colorado River Entitlement historically has been unused. The Colorado River Transfer Policy states that “the Department will not recommend the conveyance or lease of any entitlement to unused or surplus Colorado River water apportionment.” Colorado River Transfer Policy a p. 3. Quartzsite’s Colorado River entitlement is undisputedly and indisputably unused. See the Application at pp. 1, 3-9. On this basis alone, ADWR should deny the Application. The Colorado River Transfer Policy goes on to state that “[i]f such entitlements are not needed by a contractor, the Department will recommend that the unneeded contract be terminated . .” Colorado River Transfer Policy a p. 3. Consequently, ADWR could recommend that Quartzsite’s Colorado River entitlement be terminated and it be reallocated for use on the mainstem consistent with Arizona’s long-standing policy that the Fourth Ms. Sharon Scantlebury November 6, 2017 Page 4 Priority water reserved for on-river M&I use be used only for on-river M&I use, and for no other purpose. The Application has provided no reason or rationale which would justify ADWR deviating from this clear policy. In addition, several of the other considerations in the Colorado River Transfer Policy weigh against granting the Application. b. The Proposed Entitlement Transfer is inconsistent with long-standing ADWR policies regarding Fourth Priority entitlements on the mainstem of the Colorado River. The mainstem, or on-river, Fourth Priority Colorado River entitlements were specifically allocated and reserved, at Arizona’s request, “for municipal and industrial uses along the river. .” see, e.g., Updating the Hoover Dam Documents as Updated in 1978 and 2008, excerpts attached hereto as Appendix C. In fact, the Director of ADWR in 1990 advised the BoR that “it is the Department’s unequivocal position that this water is to be reserved for future M&I use along the River. It is not to be considered as supplies available for any other purpose.” See Letter by ADWR Director Plummer to BoR Regional Administrator re: Arizona’s Allocation of Colorado River Water to River Communities, p.