Water: Southwest Coalition Statement of Commitment and Call for Allies

            Whiskey’s for drinking, water’s for fighting over. —Mark Twain

More than any other area of North America, the Southwest faces water shortages just as demands for water increase. These colliding forces are inevitable products of industrial civilization. Deep Green Resistance chapters across the Southwest recognize the imminent catastrophe. We view the protection of ground and surface water, and the protection of indigenous peoples’ rights to their water and landbase, as critically important. We declare water preservation and justice as our primary focus.

Deep Green Resistance Southwest Coalition is a confederation of DGR action groups located in the southwest region of North America. While each group focuses on ecological and social justice issues specific to their region, as a Coalition we work together to reinforce each group’s efforts. Our members include:

Deep Green Resistance Colorado Plateau

Deep Green Resistance Sonoran

Deep Green Resistance Colorado

Deep Green Resistance Great Basin

Deep Green Resistance Chaparral

Great Basin Spring, Goshute Reservation

Great Basin Spring, Goshute Reservation

The Increasingly Arid Southwest

The region is among the driest areas in the world. The southwest receives only 5-15 inches of rainfall a year[1] and nearly all climate models predict an increase in both aridity and flooding with global warming.[2] As increasing temperatures force the jet stream further north and more surface water is evaporated (notably in desert reservoirs like Lake Powell where an average 860,000 acre-feet of water—about 8 percent of the Colorado River’s annual flow—is lost every year),[3] overall precipitation is decreasing even as summer storms paradoxically become more intense. And there is no margin of safety from which civilization can draw—the Colorado River, for example, is already fully allocated; all the water is claimed.[4]

Agriculture is far and away the largest water consumer: California’s Imperial Irrigation District consumes 3.1 million acre-feet of Colorado River water every year, compared to the rest of Southern California, which gets only 1.3 million.[5] Large amounts of water are also used for oil and gas drilling—an estimated 100,000 gallons per fracked well[6]—and coal mining and burning.

 

Ken Dewey, climate.gov

Ken Dewey, climate.gov

The water shortage is already wreaking havoc among wildlife. In California, the drought is partially implicated in the deaths of tens of thousands of native waterfowl. As water sources dry, birds congregate around remaining oases like fountains and irrigation ditches. In such close quarters, disease spreads quickly. Other victims of water scarcity in California include scores of thousands of bark beetle-killed trees—so much so that these results “herald a region in ecological transition.”[10] Unsurprisingly, 2015 is among the worst California fire seasons ever.This year, twelve western states declared drought emergencies.[7] On April 25, 2015, the largest US reservoir, Lake Mead, dropped to an historic low of 1,080 feet. That record surpassed the previous low set last August; Mead has never been lower since it was filled in the 1930s.[8] These conditions are unlikely to improve. In spring of 2015, snowpack in the Sierra Mountains measured at just 5 percent of normal.[9]

Desperate Measures

These unprecedented changes are driving ever more desperate and costly projects, such as the Southern Nevada Water Authority’s planned multi-billion-dollar pipeline project in eastern Nevada’s and western Utah’s arid basin and range country. If completed, the project would pump billions of gallons of groundwater to Las Vegas, threatening the Goshute Indian reservation, the livelihoods of ranchers, many rare endemic species, and the land itself.[11]

A proposed California water pipeline may move as much as 7.5 million acre feet of northern California water south a year. It was just revised to include only a third of the originally planned habitat protection, re-allocating water from the Sacramento-San Joaquin Delta. Situated between California’s wetter north and its dry and populous south, the delta contains one of California’s largest remaining wetlands, home of green sturgeon, steelhead, and endangered Delta smelt.[12] More extreme are plans to siphon off some of Canada’s abundant water to California.[13] As drought and demand continue their increasing arcs, however, these desperate plans for massive water transfers become more acceptable to many.

The Only Sane Response

The government-industry axis takes water from the less powerful, regardless of any natural rights such groups may have.[14] This cannot continue, not even beyond the very short term. When the unstoppable force of increasing demand for water—continuing without limit—meets the immovable object of shrinking water supplies, environmental devastation and injustice swiftly follows.

DGR Southwest Coalition supports any protective or restorative action for ground and surface water, including the removal of dams and reservoirs by any means necessary. At the same time, we advocate for and support the dismantling of the systems (capitalism specifically and industrial civilization generally) as the only strategic way to safeguard the planet, and to keep it from degrading into a barren, lifeless husk. These are daunting tasks, no doubt, even if we limit our focus to the southwest; and yet, it’s a critical calling for all of us who care for life and justice.

We are reaching out to others who also view water protection and justice as values worth fighting for. For example, preserving instream flows (what’s left in a stream channel after other allocations) and groundwater protection—from fracking, from water mining, from surface contamination. We offer whatever expertise and resources we can muster, and all the passion we have, for our landbase. We’re ready to work with those who struggle with these problems; we’re also ready to take on whatever role is necessary in support of their fights.

This fight should be shared. Please contact us so we can network with you in pursuit of water, justice, and life.

swcoalition@deepgreenresistance.org

[1] C. Daly, R.P. Neilson, and D.L. Phillips, 1994. “A statistical-topographic model for mapping climatological precipitation over mountainous terrain,” J. Appl. Meteor., 33(2), 140-158, as displayed in http://www.wrcc.dri.edu/pcpn/westus_precip.gif

[2] Melanie Lenart, “Precipitation Changes,” Southwest Climate Change Network, September 18, 2008,  http://www.southwestclimatechange.org/node/790#references

[3] “Glen Canyon Dam,” Wikipedia, accessed December 10, 2012, http://en.wikipedia.org/wiki/Glen_Canyon_Dam. An acre-foot is about 325,853 US gallons.

[4] Brett Walton, “In Drying Colorado River Basin, Indian Tribes Are Water Dealmakers,” Circle of Blue, July 1, 2015, http://www.circleofblue.org/waternews/2015/world/in-drying-colorado-river-basin-indian-tribes-are-water-dealmakers/

[5] Tony Perry, “Despite drought, water flowing freely in Imperial Valley,” Los Angeles Times, April 13, 2015, http://www.latimes.com/local/california/la-me-drought-imperial-valley-20150412-story.html

[6] Rory Carroll, “Fracking In California Used 70 Million Gallons Of Water In 2014,” Huffington Post, http://www.huffingtonpost.com/2015/04/02/fracking-california-water_n_6997324.html

[7] Elizabeth Shogren, “Senate considers legislation to help the West store and conserve water,” High Country News, June 3, 2015, http://www.hcn.org/articles/california-farmers-fear-irrigation-water-will-go-to-salmon-instead

[8] Sarah Tory, “Canadian water for California’s drought?” High Country News, April 28, 2015, http://www.hcn.org/articles/could-canadas-water-solve-californias-drought-1

[9] Ben Goldfarb, “Fowl play: California’s drought fingered in bird deaths,” High Country News, April 2, 2015, http://www.hcn.org/articles/fowl-play-californias-drought-fingered-in-bird-deaths

[10] Keith Schneider, “California Fire Danger Mounts in Sierra Nevada Forests,” Circle of Blue, July 10, 2015, http://www.circleofblue.org/waternews/2015/world/as-california-drought-rebalances-sierra-forests-fire-danger-mounts/

[11] Stephen Dark, “Last Stand: Goshutes battle to save their sacred water,” Salt Lake City Weekly, May 9, 2012, http://www.cityweekly.net/utah/article-35-15894-last-stand.html?current_page=all

[12] Kate Schimel, “Gov. Brown slashes Sacramento Delta environmental protection,” High Country News, May 7, 2015, http://www.hcn.org/articles/gov-jerry-brown-slashes-delta-environmental-protection

[13] Sarah Tory, “Canadian water for California’s drought?” High Country News, April 28, 2015, http://www.hcn.org/articles/could-canadas-water-solve-californias-drought-1

[14] Ed Becenti, “Senate Bill 2109 Seeks to Extinguish Navajo and Hopi Water Rights,” Native News Network, April 4, 2012, http://www.nativenewsnetwork.com/senate-bill-2109-seeks-to-extinguish-navajo-and-hopi-water-rights.html

 

Colorado’s water plan: an end to mega projects?

Apparently, Colorado has a new water plan. Plans are good. This is cold comfort, though, given that the plan only addresses new ‘supply projects’.  We know the Colorado River is already 100% allocated (a tiny bit of industrial civilization insanity in and of itself); this article, from High Country News, projects an additional 5 million residents in the state by 2050, at the same time we face increasing droughts and lower water levels. This will end well, right?

We in Deep Green Resistance believe you have enough intelligence to see the obvious answer. Please join us in dismantling the system that is leading us to ecological disaster, and in ensuring there is still water enough for all living creatures.

Colorado’s water plan: an end to mega projects?

The latest draft of the plan sets strict guidelines for approving new diversions over the Rocky Mountains.

Underneath the surface of Colorado’s new water plan is an unspoken acknowledgment: the days of moving large amounts of water up and over the Rockies are probably done.

On July 7, the second draft of the statewide plan was released, the latest step in a decade-long process that will direct how Colorado’s water should be managed for years to come. The new draft sets a statewide water conservation target of 400,000 acre-feet and incorporates input from Colorado’s nine Basin Roundtables, groups of citizens and experts tasked with thinking about their region’s water needs. But the biggest addition is a revised set of guidelines for making decisions about new supply projects that could spell the end of any new big water transfers over the Continental Divide.

Gross Reservoir in Boulder County, Colorado receives water from the Colorado River basin via the Moffat Tunnel and is owned by Denver Water. The second draft of the statewide water plan sets out strict guidelines for new transmountain water diversion, making a big new supply project unlikely.
Jeffrey Beall/Flickr

The guidelines acknowledge what for years seemed unthinkable to many Coloradans: there may not be any water left to develop, without cutting into the water rights already in use.

That admission represents a huge shift in what the state publicly acknowledges about Colorado’s water supply, says Eric Kuhn, the general manager of the Colorado River District and one of the people who helped draft the guidelines. “Just a few years ago no one was questioning whether there was more Colorado River water to develop,” he says.

Already, a massive system of pipes and reservoirs — known as transmountain diversions – brings more than half a million acre-feet of water east from the Colorado River basin across the Continental Divide to cities and farms on the Front Range. Farmers on the west side of the Rockies, along with the majority of people living there, have long opposed any new diversions. But with groundwater reserves running out and a projected 5 million extra people living in Colorado by 2050, many water managers on the Front Range see a big new transmountain water project as an important tool for keeping pace with growth.

But there’s a problem with that solution, says Drew Beckwith, the water policy manager with conservation group Western Resource Advocates. Climate change will continue to exacerbate drought conditions, which means river flows will keep trending downwards while temperatures rise. That means taking more water out of the system will cut into existing projects — like more eaters making the size of the pie slices smaller for everyone. “It makes it very risky to take more water out of the river under those conditions,” says Beckwith.

That new mindset, encapsulated in the guidelines, challenges a long-held  assumption that the state can and should develop its full allotment of water from the Colorado River under the 1922 Compact. The law requires that the Upper Basin states send 7.5 million acre-feet annually to the Lower Basin plus an additional 750,000 acre-feet for Mexico before splitting the remainder among themselves. According to the most recent study by the Colorado Water Conservation Board on the availability of supplies in the Colorado River Basin, Colorado has anywhere from one million to zero acre feet left to develop — depending on which climate model plays out.

On the West Slope, home to 84 percent of Colorado’s water supply, that possibility is driving calls for “not one more drop” of water diverted to the Front Range. Even Denver Water, the largest municipal water utility in the state with 1.3 million customers, acknowledges that protecting existing supplies is paramount. Their comments on the second draft state: “Denver Water receives about 50 percent of its total supply from the Colorado River. Therefore avoiding a ‘Colorado River Compact Call’ is critical to our ability to meet our obligations to our customers.”

But the lingering uncertainty over just how dry or wet Colorado’s future will be means Denver Water is covering both bases. Another section in its comment letter maintains that “the ability to develop new projects should be protected.”

The disconnect underscores just how touchy the issue of new water development in Colorado is — and why authors of the state water plan are tiptoeing around the issue. To critics, the presence of the new transmountain diversion guidelines may make it look like the plan simply endorses new projects. But in practice, says Beckwith, the necessary conditions make it seem unlikely that one will ever materialize: Any new project could only divert water during “wet years” to prevent exacerbating the risk of a curtailment on the state’s allotment of Colorado River water, which would happen if the state could not meet its Compact obligations to the Lower Basin.

To meet those requirements, Kuhn believes “Lake Powell would have to be essentially spilling.” In the past 15 years, those conditions have occurred only once. For that reason, any new project will be a hard-sell. “Are you, as a city councilman, going to endorse a multi-billion dollar project that will only be able to take water in one out of every 15 years?” Kuhn says, though he notes that the guidelines do not impede expansions of existing projects that were already approved (such the Windy Gap Firming Project in northern Colorado).

With less than six months left until a final version of the plan is due to Governor Hickenlooper, debate over whether it merely greases the skids for new transmountain diversions will continue.

 But for Beckwith, “this is as close as you can say to ‘there will never be a new [transmountain diversion] without actually saying it.”

Sarah Tory is an editorial fellow at HCN.

 

http://www.hcn.org/articles/under-the-surface-of-new-colorado-water-plan-an-end-to-big-water-projects-1?utm_source=wcn1&utm_medium=email

The Drying of the Colorado River Basin

Perhaps more than any other area of North America, the American Southwest faces water shortages, just as demands for water increase. These colliding forces both owe their existence to industrial civilization.

Deep Green Resistance chapters across the Southwest recognize the imminent catastrophe and view the preservation of our natural water supplies and systems, and the protection of indigenous peoples’ rights to their water and landbase, as our top priority.

The following article, from  Circle of Blue, describes some of the background of the state of affairs surrounding water in the Southwest, as well as the tensions arising when demand and supply head in opposite directions. As a brief aside, we note the insanity behind the statement that “The Colorado River is fully allocated.” Only those too steeped in the madness of industrial civilization to think anymore would fail to blink at this.

In Drying Colorado River Basin, Indian Tribes Are Water Dealmakers

WEDNESDAY, 01 JULY 2015 06:00

Native Americans hold 20 percent of the basin’s water rights. How they use their water will shape the future of the Southwest.

Photo © J. Carl Ganter / Circle of Blue Governor Stephen Roe Lewis, leader of the Gila River Indian Community, stands in the dry bed of the Gila River, outside of Sacaton, Arizona. Elected last year, Lewis proclaimed 2015 the Year of Our Water Rights for his tribe. Click image to enlarge.

Photo © J. Carl Ganter / Circle of Blue
Governor Stephen Roe Lewis, leader of the Gila River Indian Community, stands in the dry bed of the Gila River, outside of Sacaton, Arizona. Elected last year, Lewis proclaimed 2015 the Year of Our Water Rights for his tribe. Click image to enlarge.

By Brett Walton
Circle of Blue

Mired in drought and torched by one of the hottest years ever measured, the seven states of the Colorado River Basin are acutely aware of how a desert can bully water supplies. They are not alone. In this cauldron of collaboration and competing interests is a collection of players who are just as significant for managing and responding to water scarcity but attract much less attention: the basin’s 29 federally recognized Indian tribes.

With the oldest claims to water, the tribes command a considerable role in directing the region’s future. Combined, they hold rights to a substantial portion of the Colorado River’s flow: roughly 20 percent, or 2.9 million acre-feet, which is more water than Arizona’s allocation from the river. The tribal share, moreover, will increase, perhaps by as much as hundreds of thousands of acre-feet as the 13 tribes without confirmed rights settle their claims with federal and state governments.

“The tribes are the huge unknown.”
–Robert Glennon, law professor
University of Arizona

Years of careful negotiations, spurred by a desire to avoid long-running court battles, produced legal settlements that provide water for tribes, cities, and industries. Beneficial to all sides, the settlements were a catalyst for urban development and a tool for funding Indian water systems. Perhaps more importantly, the settlements are the foundation of a partnership, an inescapable union, between tribes and their neighbors, a union that will grow in importance as water becomes scarcer in the warming and drying American West.

“We’ve developed tremendous and valuable relationships with each other from being in the same room for years,” Kathryn Sorensen, director of the Phoenix water department, told Circle of Blue. “Water is always important and contentious in Arizona. But having relationships helps you have conversations when you want new solutions.”

“Solutions” is the word of the moment in the Colorado River Basin, and for good reason. California is suffering a drought emergency that reveals the paramount significance to Southern California of water diverted from the Colorado. Last week, water levels in Lake Mead, formed from the Colorado and the nation’s largest reservoir, dropped below 1,075 feet in elevation, the threshold for declaring the basin’s first mandatory water cuts if such low levels persist to January, the benchmark month for such a declaration.

Attempting to delay the day of reckoning, the seven basin states announced last year a sheaf of proposals to conserve water and store the savings in Lake Mead. In the long run, river flows could decrease by 9 percent by 2060 because of climate change, according to a 2012 federal government study. The realization of water limits has come swiftly and forcefully.

The Colorado River is fully allocated, which means all the water is claimed. Some cities and farm districts feared that tribal water settlements would create conflict by taking water away from current users. Those worries have not, to this point, materialized. In pursuit of their water rights, the tribes have been the basin’s dealmakers. They sold rights for money to build systems that will deliver water to reservation faucets. They leased water to cities, to bring in additional funds for tribal development. They participate in programs that store water underground, to bolster depleted aquifers, and leave water in rivers, to benefit ecosystems.

But beneath the current amity, there is still concern. Tribes do plan to use more water once they have the money to build out irrigation systems and develop commercial enterprises. A group of the largest tribes persuaded the Bureau of Reclamation to study the effects on the Colorado River Basin as more tribal rights are exercised. Reclamation, the federal agency that manages the basin’s largest dams, calls tribal water use a “critical uncertainty.”

How tribal water use evolves in the decades to come — and the time scale is that long — is perhaps the biggest question mark on the demand side of the Colorado River’s water availability equation.

“The tribes are the huge unknown,” Robert Glennon, University of Arizona law professor, told Circle of Blue. “This is a huge issue.”

Adding Flexibility to the System
The tribes of the Colorado River Basin are a diverse group. The Navajo Nation, the largest, straddles three states and has claims to water from multiple tributaries. The land of the Colorado River Indian Tribes lies in the river’s floodplain in Arizona and California and covers large tracts of irrigated agriculture. The Southern Utes, located in the Colorado quadrant of the Four Corners region, are known for fossil fuel development.

Map © Kaye LaFond / Circle of Blue This map shows the 29 federally recognized tribes in the Colorado River Basin. Click here for an interactive version that describes each tribe’s water rights. Click image to enlarge

Map © Kaye LaFond / Circle of Blue
This map shows the 29 federally recognized tribes in the Colorado River Basin. Click here for an interactive version that describes each tribe’s water rights. Click image to enlarge

 

Accordingly, each tribe’s goals for its water rights are unique, said Doug Kenney, a University of Colorado law professor who studies the basin.

“I’m a believer that there is a great opportunity for the tribes to be a part of the basin’s solutions,” Kenney told Circle of Blue. “Historically the water community has feared the day when tribes put water to use. The way I look at it, a lot of tribes are interested in doing creative arrangements.”

Creative, Kenney said, means getting an economic benefit without taking water out of the river — using water, for example, to propel a nascent tourism industry by ensuring sufficient stream flows for rafting or fishing. Creative also means selling the temporary right to use water to others, an action called leasing, which is common in the Phoenix metro area. Home to 4.5 million people, Phoenix and its Sonoran Desert neighbors are the biggest beneficiaries of these creative arrangements.

Phoenix leases water from three tribes, and a fourth agreement is nearing completion. The terms of the deals are straightforward. Phoenix makes an upfront payment, typically millions of dollars, to the tribe and pays an annual charge to cover the cost of pumping the water to operators of the Central Arizona Project (CAP) canal, which transports Colorado River water hundreds of miles to the dry heart of the state. (See sidebar for a list of leases and payments.)

Phoenix Water Leases


Tribe                                                                           Amount       Price            Length

of Water                            of Lease

(acre/ft per yr)                           (years)

Fort McDowell-Yavapai Nation                              4,300       $US 5.5m            99
Gila River Indian Community                                 15,000     $US 27.2m       100
Salt River-Pima Maricopa Indian Community      3,023      $US 3.6m            99

White Mountain Apache (pending)                          3,505      $US 10m             99

Phoenix holds leases from three tribes, which account for roughly 3 percent of its surface water supply. A fourth lease is pending court approval.


 

Most of Phoenix’s leases run for 100 years. Together, they provide roughly 3 percent of the city’s surface water supply. The importance of the leases is much larger than that fraction, according to Sorensen, head of the water department. Leases allow Phoenix to conserve its groundwater reserves for drought emergencies and urban growth, she said.

Phoenix, Glendale, Scottsdale, and dozens of other cities in Maricopa and Pinal counties grew rapidly three decades ago with Colorado River water shipped through the Central Arizona Project. With imported water supplementing the Gila, Salt, and Verde rivers and relieving pressure on depleted groundwater reserves, a modern oasis society expanded. The region’s population is double what it was in 1990.

Leasing is a popular practice. In 2015, roughly 8 percent of the CAP deliveries were water leased from tribes. In Arizona, however, leasing is restricted by legal decree to the tribes that receive CAP water. The tribes on the Colorado River mainstem cannot rent out their water, a prohibition that some tribes would like to overturn. “Tribes are emerging participants and leaders for water management in central Arizona,” Chuck Cullom, Colorado River manager for CAP, told Circle of Blue.

How Much Water Will the Tribes Use?
Still, water managers and other Colorado River users worry that water supplies will diminish as tribes expand irrigation or develop water-consuming businesses on their reservations. The concerns are heightened by the reticence among tribal leaders to publicly disclose their plans.

Photo © J. Carl Ganter / Circle of Blue The Central Arizona Project canal passes groundwater recharge ponds to the north of Scottsdale. The 540-kilometer (336-mile) canal delivers Colorado River water to cities, farms, and tribes in the interior of Arizona. Click image to enlarge.

Photo © J. Carl Ganter / Circle of Blue
The Central Arizona Project canal passes groundwater recharge ponds to the north of Scottsdale. The 540-kilometer (336-mile) canal delivers Colorado River water to cities, farms, and tribes in the interior of Arizona. Click image to enlarge.

 

In one of the rare public presentations, Darryl Vigil, chairman of the Ten Tribes Partnership, a group of tribes holding the largest water rights in the basin, testified at a U.S. Senate Energy and Natural Resources subcommittee hearing on July 16, 2013. Vigil explained that the tribes expect the federal government to exercise its responsibility to protect tribal rights from water users with more influence.

“The Ten Tribes are very concerned that while they struggle to put their water to use, others with far more political clout are relying on unused tribal water supplies and will seek to curtail future tribal water use to protect their own uses,” Vigil told the committee.

In response, the Bureau of Reclamation is undertaking an assessment of tribal water use. Due in mid-2016, the study will analyze the effects on farms, cities, and industries in the basin as the tribes seek to expand irrigated agriculture, develop commercial enterprises, or otherwise increase water use.

Circle of Blue attempted to contact Vigil for several months for an interview, but he did not return phone or email messages. Few tribes, for that matter, were willing to discuss their water plans. Circle of Blue sought interviews with leaders of seven tribes in the basin — Gila River Indian Community, Navajo Nation, Jicarilla Apache Nation, Colorado River Indian Tribes, Fort McDowell Yavapai Nation, Salt River-Pima Maricopa Indian Community, and San Carlos Apache Tribe.

The president of the Gila River Indian Community, who declared 2015 the Year of Our Water Rights for his tribe, agreed to an interview but canceled at the last minute and did not reschedule. Carole Klopatek, who represents the Fort McDowell Yavapai, told Circle of Blue, “We keep our water right plans confidential within the council and do not speak with the press.”

Only the San Carlos Apache spoke with Circle of Blue.

Except for a mining company that wants to open a copper mine near the reservation, the San Carlos Apache have good relationships with its non-tribal neighbors, according to Tao Ettison, the tribe’s vice chairman.

Half of the tribe’s water rights are used on the reservation and half are leased, Ettison explained. The tribe is looking for new uses for its rights, namely through farming.

“We have several sites identified for irrigation expansion,” Ettison told Circle of Blue. “We’re progressively working at it every day.”

Settlements, Not Litigation
A tribe’s right to water is derived from the U.S. Supreme Court’s seminal Winters decision, in 1908. In Winters, the judges ruled that the creation of an Indian reservation by the U.S. government carried with it an implied right to water. Known as federal reserved rights, each tribe’s claims dated to the year the reservation was established. In western water law, which is generally based on a doctrine of first-come, first-served, the Winters decision put the tribes at the head of the line for water — before the miners, farmers, and cities that sprouted in the West after the native lands were forcibly cleared.

Photo © J. Carl Ganter / Circle of Blue Irrigated fields border the Colorado River on the Fort Mojave Indian reservation, in Arizona. Unlike their counterparts in interior Arizona, the five tribes located along the banks of the Colorado are not allowed to lease their water to cities and industries off the reservation. Click image to enlarge

Photo © J. Carl Ganter / Circle of Blue
Irrigated fields border the Colorado River on the Fort Mojave Indian reservation, in Arizona. Unlike their counterparts in interior Arizona, the five tribes located along the banks of the Colorado are not allowed to lease their water to cities and industries off the reservation. Click image to enlarge

 

The legal agreements that seal a tribe’s water rights are known as “settlements.” Sixteen tribes have reached settlements with federal and state governments since 1978. More settlements are coming. Thirteen of the 29 tribes in the Colorado River Basin have claims to water that are not fully quantified, including the Navajo Nation, which has the largest outstanding claims.

Settlements are now the favored option for sorting out water rights, but it was not always the case.

The court process to quantify these rights is expensive, uncertain, and lasts for decades. The Aamodt case in New Mexico, for instance, was filed in U.S. district court in 1966. The case was still in court in 2000, when the parties began orchestrating an agreement outside the halls of justice. A deal was signed in 2010, bringing an end to the longest-running water rights case in the country.

Even if the court process moves quickly, the tribes are not guaranteed a favorable outcome. A New Mexico court, to cite an extreme example, awarded the Mescalero Apache just 13 percent of the water it sought.

“If you go to court, you get paper rights, not funding,” Nathan Bracken of the Western States Water Council told Circle of Blue. “It’s a tribal incentive to collaborate. The state wants to protect existing uses. The settlements are a way to minimize impacts to non-tribal users. You can’t get these compromise solutions through a court order.”

To avoid those pitfalls, tribes and existing water users prefer settlements, according to John Echohawk, executive director of the Native American Rights Fund, one of the early advocates for settlements. The first settlement, with the Ak-Chin tribe, was signed in 1978.


Federal Agency Studies Tribal Water Use
In 2012, the Bureau of Reclamation released a detailed analysis of water supply and demand in the Colorado River Basin. Detailed, but not comprehensive: the tribes were not initially included on the study’s planning committee. After protesting the exclusion, they were a late addition to the assessment.
Reclamation is now correcting its omission. The agency is in the middle of a companion study to analyze current tribal water use and estimate future demands. The study will assess how farms, cities, or industries that rely on unused tribal water will be affected by an increase in water use on the reservations.
“The study is important to us,” Reclamation’s Carly Jerla, a study coordinator, told Circle of Blue. “It was a commitment we made coming out of the [2012] basin study. It brings the tribal perspective to the discussion of future water imbalances.”
The study, conducted with the Ten Tribes Partnership, a group of tribes holding the largest water rights, will be completed in early 2016, Jerla said.


Negotiations produce broad agreements that address topics that are beyond the court’s domain: fishing rights, community development, ecosystem protection. The Zuni settlement, for instance, included money earmarked for restoring a sacred wetland. The Fort McDowell settlement added $US 23 million in federal money to the tribe’s community development fund.

The Obama administration made Indian rights settlements a priority since taking office, having signed six settlements. The fiscal year 2016 budget request includes $US 112 million to implement the provisions, such as constructing drinking water systems.

“Settlements have been, and should remain, a top priority for the federal government,” said Michael Connor, deputy secretary of the Interior Department, at a Senate Indian Affairs committee hearing on May 20.

Just as important, according to those who have participated in settlements, are the relationships that form during negotiations. “We find a way to live together on a limited water supply,” Echohawk told Circle of Blue. “The tribes are treated fairly and the impact to non-Indian interests is minimized. The most difficult part is getting Congress to fund the settlement.”

Facing a Future of Water Scarcity
The power of settlements to shape the future is already apparent. New Mexico, for one, has set aside a portion of its unused share of the San Juan River, a Colorado River tributary, for tribal water rights settlements, according to the New Mexico Office of the State Engineer.

Brian Parry, of the Bureau of Reclamation’s Native American Affairs program, negotiated several settlements in New Mexico: the Navajo-Gallup, the Aamodt, and the Jicarilla-Apache. He witnessed the swaps and trades that kept the deals on track. That persistence through decades of deliberation will be even more important as the basin warms and dries, as the cities grow, and as tribes put more of their water to use on the reservation.

“In the settlements we have people talking to people,” Parry told Circle of Blue. “Irrigation districts are taking a little less irrigation water, and tribes are trading water for more infrastructure. But it’s hard and it’s going to continue to be hard.”

“Tension is always going to exist,” Parry added. “Water is a tremendous concern. Everybody needs it and wants it. The question for these settlements is, what can be done to harm as few people as possible? The tribes are good about leaving water for their neighbors and entering into compacts for shortage sharing when times get rough — even when a court wouldn’t compel them to do it.”