Even after the torrential rains experienced by western states in January and early February 2023, the 22-year-old Colorado River “drought” has not been resolved. Western states have been meeting to negotiate new allocation amounts for water flowing in the Colorado River. All stakeholders recognize the need to address how to move forward with less water now, as well as significantly reduced water flows in the future.
Construction of large federal water dams to capture the water flows from the Colorado River beginning in the 1920s accelerated settlement and development of the southwest. In 1922, with the passage of the Colorado River Compact, the Law of the River was established. The goal of the Law of the River was to equitably divide and apportion the waters from the Colorado River amongst the southwestern states. The compact defines the Upper Basin states (Colorado, Utah, and Wyoming) and the Lower Basin states (Arizona, California, Nevada, and New Mexico).
The 1922 Compact has been amended, modified, and updated numerous times over the past 100 years to address not only the increase in development of the West but also to adjust distribution amounts due to decreased water flows in the Colorado River. In 1944, the United States entered the Mexican Water Treaty, guaranteeing annual delivery of water to Mexico, subject to certain exceptions. Currently the Colorado River supplies water to 40 million people in seven western states and Mexico.
Historically, 15-million-acre feet of water flowed from the Colorado River, but that has been reduced to 12-million-acre feet, and scientists estimate it may decrease to 9-million-acre feet, a 40% decrease. Climate change has caused the temperatures in the southwestern region of the United States to increase faster than other states, and over “double the global average,” and are “predicted to increase another 2–6 degrees Fahrenheit by 2050.” Since the drought began in 2000, the river’s average flow has decreased approximately 20%, and the predicted increase in temperature could cause an additional decrease of 10–40% in water flow.
In light of the drought-caused decrease in the water flow in the Colorado River, accentuated by climate change, the Department of Interior, Bureau of Reclamation demanded the Compact states gather and negotiate a 2- to 4-million-acre feet reduction in the amount of water allocated under the Compact. In January, six of the compact states presented the Bureau with a proposal to cut approximately 2-million-acre feet of water allocated from to the Lower Basin states, with a smaller reduction to the Upper Basin allocation. To date, California nor Mexico, have signed that proposal or presented an alternative.
What has been missing during the 100 years of discussions, amendments, modifications, and negotiations relative to the Colorado River Compact is input from the 30 tribes that also rely on the Colorado River for water. Although Tribes have superior rights to the states for water from the Colorado River, they have not been included in the negotiations and have been left to secure their own settlements with the federal government.
The Tribes’ superior rights are derived from the treaties entered into by the federal government during the relocation and reservation period. This right was recognized by the U.S. Supreme Court in Winters v. Arizona, 207 U.S. 564 (1908), where the Court held that “tribes have rights to as much water as they need to establish a permanent homeland.” Tribal water rights are commonly referred to as “Winters” rights, applying the date of the treaty that created the reservation as the date of acquisition of the tribes’ priority rights, although this theory is counter to the prevailing water law theory in the West of “first in time, first in right.”
Of the 30 federally recognized tribes in the Colorado River Basin, 22 tribes have “recognized” or settled rights to use 3.2-million-acre feet annually from the Colorado River, which is approximately 22–26% of the Colorado River Basin’s annual water supply. Twelve of the tribes included also have unadjudicated or unsettled water claims in the Basin. In Arizona, 11 tribes have unresolved claims, and in Utah, three tribes have unresolved claims (two tribes have claims against both Arizona and Utah).
Western states have not made an effort to include the impacted tribes in the Compact negotiations for a number of reasons. One reason is that under the Compact, tribal water use is deducted from the state’s allocation in which they are located; in Arizona and New Mexico, tribal water rights are 68% and 77% of the state’s total allocation, respectively. Another issue is that there is not a comprehensive analysis of the amount of water the Basin tribes use. Finally, because tribes do not have the infrastructure to make use of their priority allocations, they have not been using their full share of the water, so the reserved (or unused) water is available for state use.
Tribes continue to negotiate water settlements. In January 2023, President Biden signed the Colorado River Indian Tribes Water Resiliency Act, the Haulapai Tribe Water Rights Settlement and the White Mountain Apache Tribe Water Rights Quantification Act. These acts not only confirm the tribes’ water rights but provide funding to build the necessary delivery system infrastructure. Additionally, at the end of February, the federal government approved $137 in funding to the Navajo Nation for a water infrastructure already underway.
The Navajo Nation, unable to settle all their claims for water rights from the Colorado River Basin, filed suit in 2003 in the District Court of Arizona alleging that the United States, a Trustee, had breached its fiduciary duty to the Navajo Nation by failing to adequately represent the Nation in the Colorado River Basin Compact negotiations and to compel the Department of Interior to include the Navajo Nation in talks going forward on water rights and usage under the Compact. In 2021, the 9th Circuit remanded the case back to the District Court. In November 2022, the U.S. Supreme Court granted Arizona’s Petition for Cert, and the case will be heard by the Court on March 20, 2023.
Regardless of the Court’s finding regarding the government’s breach of trust, the decision in this case may have a significant impact on the role of the tribes in the water allocation negotiations going forward. “Watch this space. . .”
