Water Rights and Water Wars

The expiration of the Colorado River Pact is of great concern to southwestern states in light of the severely diminishing water in the Colorado River. Arizona, California, Colorado, Nevada, New Mexico, Utah, Wyoming, and Mexico will be renegotiating the terms of the Pact based on water levels significantly lower than projected when the Compact was originally approved in 1922. The Colorado River currently supplies water to 40 million people in the southwest, but drought has led scientists to estimate that there could be up to a 40% reduction in available water going forward.

Gregor MacGregor, Teaching Assistant Professor and Faculty Fellow at Colorado University Law in Boulder, Colorado, and a member of the Acequias Institute at CU, introduced the attendees to the historic Acequias systems in southeastern Colorado. Gregor explained that Acequias not only provide irrigation infrastructure but are a form of government incorporating the cultural values of the residents. Acequias have communal contributions of labor to maintain the irrigation systems and assure equitable distribution of water, and water can be shared between adjacent Acequias when necessary.

Originating in Northern Africa and introduced to the Southwest by Spaniards, Acequias are common in Central America. Acequias were codified as subunits of the state of New Mexico in 1846; but not officially recognized in southeastern Colorado until 2009 in the Acequias Recognition Act, which until that time were simply regulated as “ditch” companies. Currently, the Acequias in southeastern Colorado are selling water to Colorado’s western cities, and they are working with the state Water department to encourage the return of farming to the area to support its residents.

James S. Lochhead, CEO/Manager of Denver Water, explained that Denver Water serves 1.5 million people or 25% of the state’s population, using approximately 2% of the state’s water derived half from the Colorado River and half from the South Platte River. Mr. Lochhead noted that the Colorado River Compact, which is essentially a “treaty” among states, was originally negotiated during a heavy water period and predicted 20-million-acre feet would be available from the Colorado River. The actual water flow since 2000 has been calculated to be 12.3 million feet, and it is anticipated that it may decrease to 9 million feet.

In the upper basin of the Colorado River Compact, encompassing Colorado, Utah, and Wyoming, state water law controls; in the lower basin, encompassing Arizona, California, Nevada, and New Mexico, is controlled by federal authorities. The upper basin uses are based on hydrology prior rights, which are over-appropriated under the Colorado River Compact. Under the Compact, the lower basin receives water based on prior perfected rights, and therefore, the state quantities are not subject to shortages. Mr. Lochhead noted that the numerous tribes in both the upper and lower basins of the Compact have not been included in any of the negotiations to date, although they have the highest priority water rights due to the treaties with the federal government.

Mathew Campbell, the Deputy Director of the Native American Rights Fund located in Boulder, Colorado, spoke to the water needs of the tribes in the Colorado River basins. He explained that pursuant to the Winters Doctrine, tribal water rights arose when the reservations were established, making them first-in-time and thus the greatest priority right. The Winters Doctrine was confirmed in the 1964 case of Arizona v California, and expanded to apply to groundwater rights as well in the 2017 case of Aqua Caliente v Coachella. Tribal water rights are federal rights, and state water laws do not apply.

Mr. Campbell said that there have been only 35 water tribal water settlements, although there are currently 574 federally recognized tribes in the United States. Settlements not only quantify the amount of water a tribe is entitled to but also provide funding for badly needed water infrastructure in Indian Country. It has been estimated that tribal nations need approximately $3.2 billion for water infrastructure development in Indian Country.

The recent ruling by the U.S. Supreme Court in Arizona v Navajo Nation will further impact tribal water settlement negotiations. The Court held: “1 The peace treaty establishing Navajo Reservation did not require United States to take affirmative steps to secure water for the Tribe; 2 language in the treaty establishing the Reservation as a “permanent home” did not mean United States agreed to take affirmative steps to secure water for the Tribe; 3 treaty provision in which United States agreed to provide the Tribe with seeds and agricultural implements did not include additional duty to take affirmative steps to secure water; and 4 United States’ opposition to the Tribe’s intervention in lengthy Colorado River water rights litigation could not support the Tribe’s breach-of-trust claim.”

After the Tribe’s motion to intervene in the case of Arizona v California the Tribe asked the federal government to assist the Nation in establishing their water rights for the Colorado River Compact negotiations. The Arizona v Navajo Nation decision is viewed by the Navajo Nation as a breach of trust on the part of the federal government; the Tribe needs an assessment of how much water they are entitled to from the Colorado River. In light of this significant hurdle created by the Court, the tribes will be organizing and taking all necessary actions to ensure that they have a place at the table in the upcoming renegotiating of the Colorado River Compact.