In the mid-2000s, seven states, the federal government, and Mexico negotiated critical rules for the Colorado River that set out how to divide its water during a severe drought like the one it is currently facing.
Thirty Native American tribes – with rights to about a quarter of all the river’s water – have been excluded from these talks.
The tribes want to make sure this doesn’t happen again. The effort presents new challenges for the seven states of the Colorado River Basin and the Biden administration, which has repeatedly pledged to be more inclusive in regulatory efforts that affect Native Americans.
“It’s fair to say that the tribes were not involved in negotiating the 2007 guidelines,” said Anne Castle, former assistant home secretary for water and science under the Obama administration. “The tribes will have a seat at the negotiating table for the next set of rules this time around. The question is, what does that look like? And that has yet to be resolved.”
The 2007 guidelines expire in 2026 and determine how shortages are distributed across the basin. The Colorado River, which serves 40 million Americans, is currently in the throes of a “mega-drought” for more than 20 years and federal officials first declared a shortage in August, meaning Arizona, the Nevada and Mexico will see cuts in their shipments next year (Green wire, August 16).
Decreasing river flows due to climate change and drought have placed emphasis on tribal water.
Negotiations on new operational directives are just starting. It is widely believed that they will be more difficult than the last round because the basin will be struggling with a drying river. In other words, there is less water for everyone.
Tribes have rights to at least 3.2 million acre-feet of river water and, by some estimates, 1 million to 1.5 million acre-feet are currently unused. One acre-foot equals about 326,000 gallons, about as much as a family of four Los Angeles users per year.
This led to a rush to build the capacity of tribes to contribute meaningfully to the negotiations.
Unused tribal water could serve as an important buffer for cities like Phoenix, for example, if agreements are signed to fairly compensate the tribes.
There is also pressure for wider recognition that tribes may have better ideas on how to use the river.
“You have a group of at least 30 tribal rulers in the Colorado River Basin who have been living sustainability there for thousands of years,” said Daryl Vigil, water administrator for the Jicarilla Apache Nation, during a recent conference hosted by the Getches-Wilkinson Center for Natural Resources, Energy, and Environment at the University of Colorado.
“We have these conversations about sustainability and resilience, why don’t we talk to these people who are still here, who have been resilient and have lived sustainably? »Said Vigil.
“We haven’t tried enough”
The lack of tribes in negotiating the current operating guidelines has prompted numerous mea culpas from the Bureau of Reclamation, the water manager for the Western Home Department.
“Did we include everyone, especially the tribes, as we should have or wished we had?” No, ”said Terry Fulp, a former head of Reclamation, at the same conference.
“We tried, but we didn’t know enough how to try, and we didn’t try hard enough,” said Fulp.
But it didn’t stop there. Following the finalization of the operating guidelines in 2007, Reclamation undertook a basin study on the hydrology of the river. Again, tribes were largely left out in this 2012 report, said Bidtah Becker, associate attorney with the Navajo Tribal Utility Authority.
It wasn’t until 2018 that Reclamation completed a new study on tribal water rights in the basin. The nine-chapter Tribal Water Study, written with the Ten Tribes Partnership, notes that tribal treaty rights are superior to state law and even the Colorado River Compact, the 1922 document that sets allocations between the seven. Basin states.
And it has highlighted significant challenges as the river flows decline and tribes seek to make more use of the water to which they are entitled.
“The tribes of the basin have a significant right to a substantial amount of water, which they fully intend to develop and use, but which junior users are currently using,” he added. noted, “Once the partnership tribes fully utilize and develop their reserved water rights, these junior water users will be affected.”
In other words: if tribes made full use of the water to which they have rights – at least 3.2 million acre-feet – it would mean much less water for cities and states.
“If you know a tribe, you know a tribe”
The Biden administration has pledged to work more closely with the tribes in the upcoming negotiations.
“The focus was on more tribal involvement and participation,” said Carly Jerla, water resources manager at Reclamation, at the same conference, “and engaging tribes in a more meaningful way.”
But it’s more complicated than it looks.
There is a saying in the basin that says “if you know a tribe, you know a tribe”. Tribes often have very different priorities for their water rights.
To further complicate the situation: Up to a dozen tribes in the basin have not fully resolved or quantified their water rights, according to an article from the Water & Tribes Initiative.
“When we talk about these questions of how these things work, where do the pieces fit more specifically,” said Jay Weiner, water lawyer at Rosette LLP, “it really gets very tribe specific. depending on the geography, where they are being quantified, whether the rights are quantified by regulation or by auction and whether they are also under development. “
The Water & Tribes Initiative concluded that full quantification and resolution of tribal water claims “will likely increase the overall percentage of tribal water in the basin.”
There are also capacity issues. Vigil, who leads the Water & Tribes initiative with Castle, the former Obama administration official, said tribes should quickly develop the same expertise as state governments that have been fighting for river water since. a century.
“After almost 100 years without being part of the structure, we are expected to be supposed to be at the table and give the same contribution as everyone else,” said Vigil. “I think it’s an unrealistic expectation, but the tribes had to live up to it.”
Some tribes talk about having a seat at the negotiating table. The Southern Ute Indian Tribe, whose reserve is in southern Colorado, has rights to nearly 129,000 acre-feet of river water.
Spokeswoman Lindsay Box said previous operating guidelines did not take into account their rights and those of other tribes.
“Once the tribes start using their full water allocations, the impacts will be felt by downstream water users who have become accustomed to having the tribes’ unused water supplies,” Box said in an email. “The South Ute Indian tribe will preserve the tribal water rights that were part of the tribal treaties with the United States of America.”
Vigil said there are guiding principles that many tribes agree on, especially within the Ten Tribe Partnership, which includes the Southern Ute Indian Tribe of Box. They include a spiritual reverence for water as sacred.
But in the short term, he stressed that the tribes are looking for a fundamental recognition that has long been lacking in the basin.
“Part of the process that we’re looking for is inclusion. It’s just basic inclusion,” he said. “This includes respect and recognition of tribal sovereignty and the ability to self-determine.”