Headwaters Spring 2022: Water For The West's First Peoples by Water Education Colorado

WATER FOR THE WEST’S FIRST PEOPLES Tribes Work to Reclaim Historical Right to Water

SPRING 2022

Dolores Water Conservancy District Established in 1961 Operating the Reclamation Dolores Project for UMUT, MVIC, Cortez, Towaoc, MWC, DWCD and Dove Creek—now and into the future.

Oct. 11–13, 2022

Pulse Tribes to Administer Their Own Clean Water Programs The Southern Ute Indian Tribe will soon exercise its sovereignty and join 75 other tribes, including the Ute Mountain Ute Tribe, in administering its own water quality programs under the federal Clean Water Act.

11 Drought in the Forecast Parched by drought conditions in 2020 and 2021, the Ute Mountain Ute Tribe Farm and Ranch Enterprise was forced to fallow much of its land. What will the future bring?

Inside DIRECTOR’S NOTE WHAT WE’RE DOING

WEco's upcoming events, reporting and more.

Contents | Spring 2022 THE TRIBAL WATER ISSUE Indigenous peoples have resided in Colorado and the

Colorado River Basin since time immemorial, yet in modern times tribal nations have had to fight for access to the most fundamental of life-giving resources. Tribes have sought to secure water rights and the infrastructure to access and distribute that water, and have worked to position themselves as sovereign entities that must be included in negotiations on the Colorado River. Now, as negotiations commence for the next management framework for the Colorado River, defining tribal water rights is critical for the tribes and for the rest of the basin’s water users, and tribal voices are finally being heard.

5 FROM THE EDITOR

6 REMEMBERING THE HONORABLE GREGORY J. HOBBS, JR.

The legacy of WEco’s long-time Vice President and Publications Chair.

7 AROUND THE STATE

Water news from across Colorado. THANK YOU & MEMBER’S CORNER

Universal Access

Nearly half the homes on Native American reservations lack clean water and sanitation, but recent federal funding, along with a plan from advocates, could be the start to long-overdue water and infrastructure upgrades. By Jason Plautz

Tribes Call for Inclusion on the Colorado River

A century after the Colorado River Compact was signed, Indigenous nations in the Colorado River Basin are organizing to secure quantified water rights, reliable water access, and a seat at the table in river management negotiations. Now, amid historic water shortages, and as the next river management framework is negotiated, there’s more urgency than ever. By Kalen Goodluck

Celebrate the impact of WEco’s members.

34 Above: A family tests the running water that was recently installed in their home on the Navajo Nation by the nonprofit DigDeep’s Navajo Water Project. The project is bringing running water into homes that lack basic indoor plumbing, primarily by installing off-grid home water systems. Photo courtesy of DigDeep On the cover: Elousie Wilson hand pours water on the family traditional foods garden where the Wilsons raise corn, squash and Bears Ears potato on the Navajo Nation in Monument Valley, near the border between Utah and Arizona. The hand pour is necessary because the drip irrigation system, evidenced by black tubing on the ground, didn’t distribute water evenly. That challenge is coupled with the need to haul water. Photo by Dave Showalter H E A DWAT E R S S P R I N G 2 0 2 2

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DIRECTOR’S NOTE

BOARD OF TRUSTEES

Jayla Poppleton Executive Director

Lisa Darling President

Jennie Geurts Director of Operations Scott Williamson Education Programs Manager

t our 2021 President’s Reception, we honored two individuals involved in water rights settlements for Colorado’s Ute tribes: Mike Preston and the late John Porter, both of whom at one time also oversaw water deliveries to the Ute Mountain Ute Tribe in southwestern Colorado. In an impromptu ceremonial gesture that hushed the crowd, Ute Mountain Ute Tribal Councilman Lyndreth Wall showed gratitude by fanning Mike alongside John’s daughters, Marsha Porter-Norton and Mary Spann, with a fan made of “Sissy Tail” feathers that had been passed through his family for 100 years. It was a memorable moment. Historically, the Ute, Cheyenne, Arapaho, Apache, Pueblo and Shoshone all had a presence in Colorado, and Comanche, Kiowa and Navajo people hunted here. Today, although descendants from hundreds of different tribes call Colorado home, there are only two federally recognized Colorado tribes, the Southern Ute and Ute Mountain Ute. If you track the history of tribes’ relationship to Western Anglo settlement and water (see the timeline beginning on page 27), it’s painful how the Utes and others were pushed from their homelands, then forced onto increasingly smaller reservations lacking resources. It wasn’t until much later that their senior rights to water were recognized and backdated to align with the date of their reservations’ establishment. Still today, many tribal rights remain unresolved. One of our organizational equity principles is “Mutual Respect for Diverse Ways of Being, Knowing, Experiencing,” which acknowledges the diversity of relationships of different people and cultures with water. Certainly, Colorado’s First Peoples embody the diversity that undergirds this principle—something we will continue to acknowledge and embrace in our programming. Not only did we welcome Councilman Wall’s sincere gesture at our event, but we honor the tribes’ role and call attention to their concerns in this issue. In addition, WEco’s annual river basin tour this year will feature the 100th anniversary of the Colorado River Compact, showcasing the Upper Colorado Basin within Colorado and the projects, considerations and stakeholders, not least the tribes, shaping the basin’s trajectory for the decades ahead. Finally, in spearheading the Water ’22 campaign through 2022, we highlight our shared interdependence on water and promote diversification of the voices being heard at state, regional and local levels, including through participation in the Colorado Water Plan update, coming this summer. Our calls to action range from simple—“Take the Water ’22 pledge,” (see insert)—to more complex, “Expand your knowledge,” and “Participate in your local watershed.” As we call attention to the risks to water sustainability and engage more Coloradans as active water stewards, we’ll prioritize mutual respect. Because that’s where productive outcomes begin. Please join in and support our efforts. As many challenges as we face, we are in this together! —Executive Director—

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STAFF

Suzy Hiskey Administrative and Programs Assistant Cailyn Andrews K-12 Water Educator Liason

Dulcinea Hanuschak Vice President Brian Werner Secretary Alan Matlosz Treasurer Cary Baird Perry Cabot Nick Colglazier Kerry Donovan Paul Fanning

Jerd Smith Fresh Water News Editor

Eric Hecox

Charles Chamberlin Headwaters Graphic Designer

Dan Luecke

Matt Heimerich Caitlin Coleman Julie Kallenberger Publications and Digital Resources Managing Editor David LaFrance Kevin McBride Karen McCormick Peter Ortego Kelly Romero-Heaney Elizabeth Schoder Don Shawcroft Laura Spann Chris Treese

THE MISSION of Water Education Colorado is to ensure Coloradans are informed on water issues and equipped to make decisions that guide our state to a sustainable water future. WEco is a non-advocacy organization committed to providing educational opportunities that consider diverse perspectives and facilitate dialogue in order to advance the conversation about water. HEADWATERS magazine is published three times each year by Water Education Colorado. Its goals are to raise awareness of current water issues, and to provide opportunities for engagement and further learning. THANK YOU to all who assisted in the development of this issue. Headwaters’ reputation for balance and accuracy in reporting is achieved through rigorous consultation with experts and an extensive peer review process, helping to make it Colorado’s leading publication on water. © Copyright 2022 by the Colorado Foundation for Water

Education DBA Water Education Colorado. ISSN: 1546-0584

What we’re doing Calling All Students! The Call for Submissions to the Water ’22 Student Showcase is open to all K-12 students, ages 5-19, throughout Colorado. Encourage young people in your life to show their talent and share their voices through whatever medium interests them most. Submission categories include creative and critical writing, painting and drawing, photography and film, music and performing arts, digital art, and more. Submission deadline: Oct 1, 2022. Check out water22.org/youth-engagement.

Water Fluency for Journalists fellows gathered in December 2021 for the final meeting of their program. Pictured (left to right) are fellows Kate Perdoni, Rocky Mountain PBS; Michael Elizabeth Sakas, Colorado Public Radio; Zach Newman, 9 News; Jim Mimiaga, the Cortez Journal; and Olivia Emmer, The Sopris Sun; beside their coaches and instructors Jerd Smith, Fresh Water News, and Laura Frank, COLab.

Water Fluency for Journalists Program From July through December of 2021, Water Education Colorado, Fresh Water News and COLab led a training for journalists focused on water issues. The program included 10 journalists from news outlets across the state: 9 News, Rocky Mountain PBS, Colorado Public Radio, The Ouray County Plaindealer, The Sopris Sun, The Ark Valley Voice, the Valley Courier, the Aurora Sentinel, the Cortez Journal, and the Greeley Tribune. Backed by the Gates Family Foundation and Colorado Media Project, the idea was to support local newsrooms and increase the amount and reach of solutions-focused journalism, while leveraging WEco’s and Fresh Water News’ experience and resources to equip journalists to more effectively and accurately cover Colorado’s most pressing water issues. News fellows produced more than two dozen water stories and also contributed to a collaborative piece on Colorado’s Prior Appropriation Doctrine and its impact on communities.

Welcome to the Team Water Education Colorado welcomed Suzy Hiskey as our newest team member in March! As Administrative and Programs Assistant, Suzy will play a key role in taking care of program participants and ensuring programs go off without a hitch, supporting logistics and behind-the-scenes preparation for WEco tours, leadership programs, and the annual Sustaining Colorado Watersheds conference. She will also support administrative functions that keep the organization humming full steam ahead. Welcome Suzy!

g Celebratin Years

Save the Date 16th Annual President’s Reception

Thursday, Sept. 8, 2022 6 p.m. at Balistreri Vineyards, Denver Join us, together with friends & colleagues, for a special anniversary celebration, awards banquet and fundraiser benefiting Water Education Colorado. It will be an evening to remember!

Details: www.watereducationcolorado.org/programs-events/presidents-reception/

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What we’re doing

FROM THE EDITOR A Conversation with

PETER ORTEGO “I think it's useful for the tribes to be a part of the discussion on how we manage the Colorado River. One of the ways that Ute Mountain [Ute Tribe] is involved in those discussions is they're not only a part of the Ten Tribes Partnership, but we're also negotiating our water rights in New Mexico because we have 104,000 acres down there, but right now we have no water rights.”—Peter Ortego We spoke with Peter, a member of the WEco Board of Trustees and director of the Ute Mountain Ute Tribe Department of Justice, about the tribe’s water rights and more. Read it on the blog at watereducationcolorado.org.

Upper Colorado River Basin Tour June 15–17 Registration is now open! Get on the bus for our three-day Annual River Basin Tour, exploring the Upper Colorado River Basin this year. Sites will include the Moffat Tunnel and transbasin diversions that convey water from the Western Slope to the Front Range, the critical 15 Mile Reach and habitat for endangered species, and Blue Mesa Reservoir. Register today at watereducationcolorado.org.

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hings we did and still do,” says Ronnie Cachini, a Zuni artist. He’s describing offerings being made by three men in the left corner of his painting, “Colorado River,” featured in this magazine (page 24). The men are Zuni ancestors praying to be blessed with rain. When you talk with Ronnie, there’s no question that the First Peoples of the American Southwest are deeply connected to water. He holds the highest position in the tribe’s pueblo in New Mexico: Rain priest of the North. He describes offerings: sprinkling cornmeal into the Colorado River to feed the ancestors, or collecting water in medicine bowls because “to us, it is medicine, it’s life.” We share a lot in this issue of Headwaters related to the irrefutable idea that water is life, to all people, and to the tribes of the Colorado River Basin, while access to that life-giving and sacred resource is still far-too uncertain for too many tribes. There’s a story on the movement toward universal access to safe drinking water for tribes (page 14) and a feature on the call for inclusion of tribes as the next Colorado River management framework is developed (page 22). Although we barely delve into the cultural significance of water for Indigenous peoples, it is important to acknowledge where water and spirit meet. You’ll read about Lake Nighthorse, near Durango, Colo., built to provide water to the Southern Ute Indian Tribe and Ute Mountain Ute Tribe. The tribes still don’t have access to that water. We report on water supply concerns, efforts to get water to people who need it, and work to involve tribes in basin-wide negotiations, but not on the fact that in building the reservoir, a sacred ancestral valley was inundated. “Our ancestors are still buried there in the lake,” said Harold Cuthair, chairman of the Ute Mountain Ute Tribe, at a dedication ceremony in 2018. That’s when the lake opened to recreational use. Since, not all visitors act reverently. “Both tribes feel pretty strongly that that reservoir needs to be treated differently than how it is today,” says Peter Ortego, director of the Ute Mountain Ute Tribe’s Department of Justice. While each tribe has its own beliefs, when Ronnie discusses his ancestors, I grasp the importance of ancestral lands at Lake Nighthorse. Ronnie’s Colorado River painting is one of 31 in the A:shiwi Map Art collection. The map depicts the basin without state or reservation lines, full of sites that Zuni people know. This tribe’s sacred lands extend beyond their 450,000-square-mile reservation—so do the maps. Reclaiming heritage comes through as the tribe uses their own language and name for themselves (A:shiwi, rather than Zuni). As tribes work to reclaim their historical right to water they’re regaining not only a life-giving substance but something sacred. As Anne Castle, University of Colorado senior fellow, says on page 20, “This is part of the unfinished business of our republic.” It’s incumbent on all of us who benefit from the land and water in Colorado to listen to their voices and heed the call.

—Editor—

Remembering the Honorable Gregory J. Hobbs, Jr.

his Headwaters issue marks the 57th issue of this magazine, and it is the first-ever issue that will have been published without the guidance of Justice Greg Hobbs, who passed away on November 30. Greg’s strong influence on the shape and direction of Water Education Colorado during his 19-year tenure as our Vice President of the Board of Trustees and our Publications Chair was truly remarkable. We felt it was more than fitting to honor him and his legacy right here in the pages of Headwaters, the magazine to which he dedicated so much time and energy, and in which he took great pride. Greg was a tireless advocate and champion for WEco’s mission to promote increased understanding of water issues in Colorado, and the

contributions he made through nearly two decades of service are of inestimable value. After helping to establish the organization in 2002, Greg poured his heart into the organization’s publications and programs. His wisdom, intellect, and passion for inclusive education was an inspiration and guiding light. As Publications Chair, Greg was integrally involved in Headwaters magazine and the Citizen’s Guide series since both publications’ inception in 2003. He authored the first-ever guide to Colorado Water Law and steered it through four subsequent editions. Greg was also a frequent presenter in WEco programs, mentored numerous individuals through the Water Leaders Program, and provided an abundance of moral support to staff and Board members. We were both so fortunate to have

had the opportunity to work alongside Greg in this shared cause that he cared so deeply about. His incredible knowledge, his unwavering commitment, his wit, his appreciation for life’s beauty, and his genuine care and concern for the interests and perspectives of all those with whom he crossed paths, will continue to inspire everyone whose lives he touched. Greg is deeply missed. Please join us as we honor him here. Sincerely,

Jayla Poppleton, WEco Executive Director

Lisa Darling, WEco President

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In Tribute to Colorado Water’s Own Renaissance Man “Greg was a presence in every area and subject he touched. He was a deep believer in public service, perfectly illustrated by the time he and his wife, Bobbie, dedicated to the Peace Corps … Greg was the kind of person who could flatter you merely by taking your opinion seriously.” —Dan Luecke, Former Director, Rocky Mountain Office, Environmental Defense Fund “Often, he was probably the most knowledgeable person in the room, but he would defer to listening first, and really genuinely wanted to know what other people thought and what they cared about.” —Jayla Poppleton, Executive Director, Water Education Colorado

“Greg was just such a different presence in that world. Steeped in the history and tradition of the law, effective as an advocate, but always with a more charitable spirit and an eye towards the greater good. Among the most approachable justices ever, and always curious and caring about the place and the resource itself.” —Thomas A. Gougeon, President, Gates Family Foundation “Justice Hobbs was a unique person who was passionate about law, poetry, photography, and the history and landscape of Colorado.” —Brian Boatright, Chief Justice, Colorado Supreme Court

Greg and Bobbie Hobbs gather with their beloved family: their children Dan and Emily, grandchildren, Greg’s mother, and extended family.

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“Greg was one of those people who never had to puff his chest out to prove he was somebody because he just was, the same way a river doesn’t have to prove it’s wet.” —Joey Bunch, Senior Correspondent, Colorado Politics “When it comes to working with words, Colorado Supreme Court Justice Greg Hobbs comes close to serving as a renaissance man. He can craft a legal opinion that is elegant even though it bristles with citations, he can explain and explore important, if obscure, facets of Colorado history with grace and clarity.” —Ed Quillen, Long-time Colorado editor and reporter “Whether ruling from the bench of the Colorado State Supreme Court, writing a poem to honor our state’s environmental beauty, or discussing treaty rights with teachers from the Navajo Nation, Greg Hobbs appealed to the best in all of us. His knowledge of the history of Western water law was unsurpassed, as evidenced in his many legal opinions, and in his last major writing on the story of Greeley Water. We are forever in his debt, and won’t be the same without him.” —Michael Welsh, Co-author with Greg Hobbs, Confluence: The Story of Greeley Water

“On my first visit to meet [Justice Hobbs], he invited me up to his office at the Colorado Supreme Court to look out the window. Overlooking Civic Center Park, he pointed out the State Capitol where the legislature makes the laws, and the executive branch carries out the laws. He stated the Supreme Court evaluates the laws. Most striking was his next statement: ‘And overlooking all of this is the Fourth Estate (pointing to a local newspaper building) playing a key role as watchdog for the benefit of the people.’ His value of ethical journalism may be why he was such a passionate advocate for Water Education Colorado.” —Greg Dewey, Water Resources Engineer, Northern Water, and graduate of 2006 Water Leaders class, where Greg Hobbs served as his mentor

Greg Hobbs and his wife, Bobbie, celebrated his retirement from the Colorado Supreme Court in 2015 at a party hosted by Water Education Colorado and friends in Alamosa, Colo.

The Water Education Colorado Board of Trustees, on which Greg Hobbs served as vice president for 19 years, and staff gathered for a board meeting in Keystone, Colo.

ODES TO A FRIEND Patty Limerick, as her namesake portends, is a master of the limerick. A friend of Greg’s and the director of the Center for the American West at the University of Colorado Boulder, she penned these to honor the Supreme Court Justice:

People wrestling with grief, Find it hard to be efficient or brief.

If you needed his help, he moved fast,

But when we think of the West,

And his kindness was instant and vast.

Greg ranks with the best,

As judge and as teacher,

Our Hydro-Translator-in-Chief.

As poet and as preacher, Greg’s impact is certain to last.

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GREG HOBBS: WATER POET

A Water Justice and More

f you serve on the Colorado Supreme Court for nearly two decades—as Justice Gregory J. Hobbs, Jr. did—it turns out that your tenure on the court begins to look very much like Colorado history itself. A recent stroll through what is affectionately known as the “GJH opinion list”—assembled by Greg and his clerks annually, each clerk group adding the opinions from their time in chambers—had me walking through a collection of Colorado stories. Justice Hobbs authored many memorable opinions throughout his tenure, and some of them are well known. Take, for example, People v. Schafer, 946 P.2d 938 (Colo. 1997), written very early in The Good Judge’s time on the bench—where the Court held that people have a reasonable expectation of privacy in tents. And Webb v. City of Black Hawk, 295 P.3d 480 (Colo. 2013), where the Court overturned Black Hawk’s ban on riding bicycles inside the town’s limits. But there are some lesser-known opinions, and there’s no one better at this point to unpack them than his clerks. Take Eagle County Bd. of County Comm’rs v. Vail Associates, 19 P.3d 1263 (2001). In 1996, the General Assembly passed a law that exempted certain private property possessory interests from state property tax. The legislation was intended, among other things, to prevent counties from levying taxes on ski resorts which leased federal land. When Eagle County sent Vail a tax bill anyway, Vail challenged the assessment and the county questioned the legislation’s validity. The Court’s opinion, authored by Justice Hobbs,

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found that the state constitution prohibited special tax exemptions unless authorized in the constitution, deeming the legislative exemption unconstitutional. Here’s what the 2000–2001 clerk class, Jim Johnson, Jordy Singer, and Jennifer Warnken, shared about this opinion: “Rendering a technically sound and highly readable opinion on a complex legal issue might have been enough for other justices. But for Justice Hobbs, Vail Associates was something more: It was about the heartbeat of Colorado itself. In his subtle but unmistakable style, he peppered the opinion with detailed references to almost every aspect of Colorado’s history: mining, skiing, farming and ranching, the relationship between federal and state lands, even the Treaty of Guadalupe Hidalgo. It was a master class in what makes Colorado Colorado, and it could only be written by someone with an unabashed love of the Centennial State and its people.” In total, Greg authored approximately 300 majority opinions for the Court, including 31 water decisions. It’s not lost on Greg’s clerks that, while people think of him as the Water Justice, he relished the wide range of issues that came before the Court and encouraged all of his clerks to be students of the world around them—not just their personal intellectual passions. Most people know that he was the living embodiment of that advice [or walked that talk]. —Amy Beatie, Colorado Deputy Attorney General, Natural Resources and Environment

Greg was a poet at heart, passionate about a myriad of topics. He was at home writing about water (“Drought,” “What I Like About Cheesman Reservoir”), nature (“The Owls are Back,” “Rainbows”), Ancestral Puebloan and Spanish culture (“Acequia Madre,” “Mesa Verde”), river running (“A Colorado River Journey”), or even contemplating life’s heavier subjects (“Which Colorado Shall We Be?” “If I Could Choose”).

Weathering When I’ve seen enough of blue or gray or golden skies and felt sufficient wind for remembering all its different touchings and seasons’ turn has turned me in I’ll take shelter from this living Until then I’m content to weather each beginning. —Gregory J. Hobbs, Jr. Originally published May 1, 1996; published in 2005 in Colorado Mother of Rivers •

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The family is planning a celebration of Greg’s life in May. For details, information on how to donate in Greg’s memory, and a list of Greg’s published works—including Colorado Mother of Rivers—visit watereducationcolorado.org/ greg-hobbs.

Pulse

Tribes to Administer Their Own Clean Water Programs

BY RACHELLE TODEA he Southern Ute Indian Tribe will soon join 75 other tribes in administering water quality programs under the federal Clean Water Act. The tribe is at the tail end of the federal process to gain administrative authority over water quality standards and water quality certification programs for all its currently held trust lands previously overseen by state and federal authorities. The authority to administer these programs is explicitly known as treatment in a similar manner as a state (TAS) for purposes of the Clean Water Act Section 303(c) Water Quality Standards and Section 401 Certification programs. Before receiving TAS authorization, a tribe must apply and be approved by the U.S. Environmental Protection Agency. The Southern Ute Indian Tribe has been working toward developing standards to protect surface water quality since the 1990s, says spokesperson Lindsay Box, but began the TAS process more than four years ago. “Development of these standards is a means of exercising tribal sovereignty and protects the tribe’s water resources from pollution, protects tribal member health and welfare, and protects wildlife and aquatic species,” Box says. The tribe’s water quality program is the most robust in the region, she says. In March 2018, EPA approved the tribe’s application. Since, the Southern Ute Indian Tribe created the necessary water quality standards and procedures, issued a public notice, and gained public input. As of February 2022, the tribe's water quality standards were approved by Tribal Council. Next up, EPA will step in again to approve or disapprove the standards—the tribe is hoping for full approval in April 2022. The Ute Mountain Ute Tribe completed this process nearly two decades ago. They started in 2000, and received approval in 2005. The tribe conducts triennial reviews of its water quality standards to ensure federal

Jeremy Wade Shockley / Southern Ute Drum

Southern Ute Indian Tribe employees monitor fish populations and assess watershed health with an electrofishing survey on the Pine River, which flows through the reservation.

compliance and assess whether tribal goals were met. The Clean Water Act requires states and authorized tribes to periodically review programs and update as necessary, according to new water quality standards. States and authorized tribes send reviews to the EPA for review, approval or disapproval. Consolidating water quality under a single jurisdiction was the goal for the Ute Mountain Ute Tribe in 2000. The Ute Mountain Ute Tribe’s lands lie in parts of three states: Colorado, New Mexico, and Utah. The tribe’s land in Colorado is trust land. The tribe’s land in Utah is allotment land held in trust—either in family trusts or by the tribe. Any fee land that a tribe owns is under the jurisdiction of the respective state. Without the tribe’s initiative to gain TAS approval, three different states would regulate the water quality for the Ute Mountain Ute Tribe. The tribe’s ability to regulate its

environment and exercise its sovereignty is what matters, says Ute Mountain Ute Environmental Program Director Scott Clow. When tribes can control their resources, it enhances tribal sovereignty, he says, noting that tribes prefer the language “Treatment as a Sovereign,” rather than the existing language. Clow notes that tribes could adopt stringent standards beyond the federal government’s minimal standards, just as states can. For instance, the Ute Mountain Ute Tribe created a unique “Tribal Use Standard,” setting stringent goals for pristine water for ceremonial use. “Tribes know what’s best for their water, lands and air,” says Clow. H Rachelle Todea is Diné and a citizen of the Navajo Nation. She is a freelance reporter based in Westminster, Colo., who reports on climate change and Indigenous peoples.

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Pulse

Drought in the Forecast

What it Means for the Ute Mountain Ute Tribe’s Farm and Ranch

BY RACHELLE TODEA ow snowpack and soaring temperatures made 2020 the third-driest year on record in Colorado—severe drought is never easy, but coupled with a pandemic, it’s even harder. When similar conditions repeated in 2021, reservoirs were already drawn down and the Ute Mountain Ute Tribe’s farm and ranch took a significant hit. “It made me very aware that our farm is in the desert. We have to look at it that way,” says Simon Martinez, general manager for the Ute Mountain Ute Tribe Farm and Ranch Enterprise and the Bow and Arrow Brand non-GMO cornmeal business. The 7,700-acre farm is located on the tribe’s 553,008-acre reservation in southwest Colorado, less than 20 miles from the Four Corners. When Dolores River flows below McPhee Reservoir were reduced to just 10% of normal in 2021, the tribe was able to operate only eight center pivot sprinklers, compared to its usual capacity of 110 sprinklers. A single center pivot sprinkler system irrigates circles of crops ranging from 32 to 141 acres in area. Lack of water meant fallowed acres, leaving the tribe to use only 500 acres in 2021, compared to 4,500 acres of alfalfa alone grown in 2020. Without irrigation water, the farm’s ability to grow its mainstay crops of alfalfa and corn was majorly reduced, and without crops to harvest, employment, too, was cut to

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Eric Whyte, hay manager for the Ute Mountain Ute Farm and Ranch Enterprise near Towaoc, Colo., examines alfalfa hay produced on the farm. In 2021, the farm’s water deliveries were reduced by 90% due to drought. The farm was able to operate only about 7% of its sprinklers, growing much less alfalfa than usual.

50%. Twenty farm workers lost their jobs. Overall, the tribe's farm and ranch enterprises operate for economic empowerment and employment. And operations were successful—before the drought, the farm had been productive and profitable since it began operating in the late 1980s. For Bow and Arrow Brand, operations didn’t slow, even last year. The cornmeal operation was launched years ago in order to stretch the shelf life of the tribe’s corn. Fresh sweet corn can last about two weeks, but by creating cornmeal, the produce remains profitable for around 18 months. Even during the drought and pandemic, sales continue. Full staff employment has been maintained.

Sustaining everything has been a challenge, but Martinez is up for the challenge, as he must be, he says. "We're going to do our best to keep employment." Some help and funding is available to make up for losses, such as drought impact funding. And Martinez is working to help the farm adapt. He’s spreading the limited amount of water as far as possible through work with the Natural Resources Conservation Service to upgrade sprinkler nozzle packages and continued consultations with agronomists on crop selection for increased drought tolerance. But those efforts can only go so far. Martinez is hopeful that McPhee, the third-largest reservoir in Colorado, which serves the

tribe, will see its water levels restored to meet tribal needs. “We're kind of teetering on the brink,” says Weenuch-u’ Development Corporation President Mike Preston, about the need for more snow in Spring 2022. The corporation manages all the Ute Mountain Ute Tribe's enterprises. The Dolores River watershed relies entirely on snowpack. But conditions aren’t looking great—100% of Montezuma county was in drought in lateMarch 2022, according to the National Drought Mitigation Center. Forecasts for the Dolores River Basin, as of March 1, project 60-70% of water supply availability this year. “We’ve got to adapt,” Martinez says. H

Dean Krakel

Around the state | BY KENDRA LONGWORTH ARKANSAS RIVER BASIN

NORTH PLATTE RIVER BASIN

Thousands of people in the Lower Arkansas Valley who’ve struggled to deal with contaminated water for more than 20 years will have clean water by 2024 under an Arkansas Valley Conduit agreement signed by the federal government, the Pueblo Water Board, and the Southeastern Colorado Water Conservancy District in March. The conduit will bring water from Pueblo Reservoir through the City of Pueblo and to communities on the Eastern Plains, such as Avondale and Boone, by 2024, and other communities, such as La Junta, as soon as 2027.

As many parts of the state and country plan to ramp up weather modification and cloud seeding practices, Jackson County's ground-based program has yielded promising results. As of March 2022, snowpack in the North Platte River Basin was 98% of normal. While the program appears to be successful, the district does not have the budget necessary to pay the annual $60,000 required beyond 2022, according to 5280 magazine.

Under the agreement, some $40 million in federal and local funding will be available to launch construction with subsequent funding for the $600 million project anticipated to come from Congress and local water agencies, according to Fresh Water News.

Douglas County Commissioners were set to travel to Colorado’s San Luis Valley in March to hear from residents about a project proposal to export water to the Front Range. However, the commissioners opted to cancel the meeting because of concerns about potential protests from San Luis Valley residents who oppose the export plan. Critics of the proposal argue that no water should be taken from the water-short valley because the local agricultural economy would deeply feel the added stress of water exports.

GUNNISON RIVER BASIN The Town of Crested Butte has agreed to reexamine its utility rate structure to provide a discount to residents who have lived in the town for at least 10 years and are older than 62. Residents that qualify could potentially see a 50% discount on their water and sewer bills. Staff are investigating how best to implement rate changes. They’re also evaluating the town’s overall water and sewer rate structures and considering changes for affordability and conservation, according to Crested Butte News.

COLORADO RIVER BASIN Last summer, debris flows from the Grizzly Creek Fire burn scar clogged the Colorado River through Glenwood Canyon and caused repeated closures on Interstate 70. In December 2021, the Colorado Department of Transportation completed road repairs on the interstate and has shifted its focus to finish the removal of six piles of detritus from the river before it swells with spring runoff. CDOT aims to complete recovery work in April, according to the Colorado Sun.

RIO GRANDE RIVER BASIN

As water shortages loom for Douglas County, Renewable Water Resources (RWR), a Denver development group, has been purchasing farmland in the valley and proposes to continue buying agricultural water rights, drying farms and piping the water over Poncha Pass. RWR has not yet identified who the ultimate customers for the San Luis Valley water project would be, according to Fresh Water News.

SAN JUAN/DOLORES RIVER BASIN La Plata County is moving forward with a new radar station for the Four Corners. The region has been a blind spot for weather and radar modeling. An improved radar system will help forecasters prepare for storms that could cause flash flooding and will help water managers predict spring runoff. While the State of Colorado awarded funding—$1.7 million—to La Plata County for the

radar in 2019, the county has struggled to find an ideal site. In Feb. 2022, the county announced that it had selected a location: the Durango-La Plata County Airport. The site was agreed to by project stakeholders, including federal, state and tribal authorities. If all goes as planned, La Plata County aims to begin construction by the end of the year, with the site operational by March 2024, according to the Durango Telegraph.

SOUTH PLATTE RIVER BASIN Nebraska leaders and regulators continue to support a proposal that would see a $500 million canal built into Colorado to divert water out of the South Platte River. Nebraska Gov. Pete Ricketts has recognized this project as a top priority for Nebraska in order to avoid shortages for farms, cities and other water users. The project, according to the Associated Press, is based on fears that the fast-growing Denver metro area will consume most of the river’s water. However, Colorado officials say they don’t fully understand Nebraska’s goals, noting that Colorado has complied with South Platte River Compact requirements.

YAMPA/WHITE RIVER BASIN A diversion constructed in the late 1800s, the Maybell diversion, will soon be modernized. The Colorado River District has awarded $500,000 and the Colorado Water Conservation Board has approved $750,000 to the Maybell Diversion Restoration and Headgate Modernization Project. Other funders include the Yampa-White-Green Basin Roundtable and the Yampa River Fund. The project is expected to have a multitude of benefits for the entire Yampa Valley. Modern technology will allow for safer boat passage, more efficient agricultural irrigation, and easier, remote control gate operation. Project partners, The Nature Conservancy, Friends of the Yampa, and the Maybell Irrigation District, hope to break ground and begin work this fall, according to the Craig Daily Press. H

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Universal Access Is Safe Drinking Water Finally on the Horizon for Tribes?

BY JASON PLAUTZ

14 • W A T E R E D U C A T I O N C O L O R A D O

rowing up in the Ute Mountain Ute Tribe’s headquarters of Towaoc in Colorado’s Four Corners region, Francilla Whiteskunk would spend her days playing in the dirt just like any kid in the wide-open West. But, she says, there was one thing she never did, no matter how hot and sweaty she got. “Kids in the city might grab a hose and drink from it. We’d get sick if we tried to do that,” Whiteskunk recalls. Without safe drinking water, Whiteskunk’s father would travel 10 miles to Cortez, Colo. weekly to fill up rubber tanks. That may sound like the distant past, but for many Native Americans, a lack of safe water is a present concern. Towaoc is now served by a pipeline bringing drinking water from Cortez, but the 250 members of the Ute Mountain Ute’s satellite community in White Mesa, Utah, worry that a nearby uranium mill could contaminate the groundwater that feeds their wells. About 60 miles east of Towaoc, on the Southern Ute Indian Reservation, roughly 15% of residents pay to haul water in, while others don’t trust the water they get due to its odor. Forty percent of Navajo Nation residents, whose reservation covers more than 17 million acres in Arizona, New Mexico and

La Plata County residents fill their water tanks at the La Plata Archuleta Water District’s bulk water fill station in 2021. A local resident fills two tanks, which she’ll truck to her nearby home.

Utah, lack running water. While members of many other tribal nations in the West rely on taps with reported arsenic and uranium contamination. A 2021 report from the Water and Tribes Initiative estimates that 48% of households on Native American reservations don’t have safe, clean water or adequate sanitation. The U.S. Water Alliance estimates that Native Americans are 19 times more likely than white households to lack indoor plumbing, the highest rate of any demographic group. A lack of running water made Native Americans one of the most vulnerable groups to COVID-19. Heather Tanana, an assistant law professor at the University of Utah, says that should reinforce the government’s “treaty and trust responsibility” to tribes when it comes to water. “The original treaties say this land is meant to

be a permanent homeland, but you cannot have any kind of homeland if you don’t have water,” Tanana says. “This isn’t just a moral or ethical responsibility. We argue that this is the government’s legal responsibility to ensure the tribes have water to thrive.” The public attention prompted Congress to approve a much-needed $3.5 billion influx to the U.S. Indian Health Service (IHS) for tribal water programs. That could be more than just a health improvement for tribes, says Whiteskunk, a certified public accountant, who now travels to reservations around the Southwest working as a financial consultant to Native-owned businesses. “Water created a whole new economic resource for Towaoc,” she says. “I look at these communities now that don’t have much going on and I

Jeremy Wade Shockley

think, if they just had drinking water, it would do a lot of good for everyone.”

How Marginalized Communities Are Left Behind

he IHS, a federal agency within the Department of Health and Human Services, regularly compiles a list of drinking water and sanitation needs for the country’s 574 federally recognized tribes. In fiscal year 2020, the latest data publicly released through a July 2021 congressional testimony, IHS identified more than 1,000 water and sanitation projects with a total cost of $3.09 billion nationwide. In fiscal year 2019 in Colorado, the need was more than $4.5 million. The Ute Mountain Ute Tribe, for example,

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48%

of tribal homes don’t have access to reliable water sources, clean drinking water or sanitation

needs to upgrade the mostly clay-lined pipeline from Cortez, which is prone to water breaks in the winter, and wants to install advanced water meters to catch and remedy costly leaks. The Southern Ute Indian Tribe is seeking funding to install indoor plumbing for the many citizens who still rely on water hauling, which can cost 70 times more than piped water—64 tribal member homes rely on water delivery services to deliver water, while hundreds of others haul water themselves. There are myriad reasons why tribal nations have trailed the rest of the country in clean water access. A long history of racism and underfunding as well as the high poverty rate have left most infrastructure on tribal lands in disrepair. Dispersed rural households are more costly to connect.

Tribal Drinking Water Delivery by Hauled vs. Piped Service Many tribes in the Colorado River Basin lack piped water and rely on hauled water service. The Navajo Nation has the most households without piped water service, where 30–40% of residents must haul water. 100% 80 60 40 20 0

Navajo Nation

Hopi Tribe Percent Piped Service

White Mountain Apache Tribe

Southern Ute Indian Tribe

Percent Hauled Water

Indian Health Service Water and Facilities Construction Needs vs. Appropriations End of Year 2009–2019 In the past, federal appropriations have not been sufficient to fund Indian Health Service water and sanitation needs. However, the 2021 Infrastructure Investment and Jobs Act appropriates $3.5 billion for IHS sanitation and clean water programs over five years. $4 million

Reservations are held in trust by the federal government, so tribes cannot rely on property taxes to fund capital investments or operations. And while many tribal water utilities rely on a service rate to maintain operations, tribes typically aim to minimize the burden that high water bills would place on tribal members. Rather, they rely on the federal government and its trust responsibility, which it sees as its “obligation to protect tribal treaty rights, lands, assets and resources.” Even when houses have plumbing access, the quality of the water delivered is not guaranteed. Legacy mines can contaminate groundwater wells, and aging infrastructure can leave water unsafe to drink or undeliverable. The U.S. Environmental Protection Agency estimates that 86% of tribal water systems comply with health-based drinking water standards, compared to 93% of community water systems nationally. While tribes can seek funds for treatment plants or other clean water equipment from IHS and EPA, the variety of problems and widespread concerns makes a simple solution hard to come by. Northwestern University global health professor Sera Young, who studies water insecurity, said plumbing poverty, or the lack of running water infrastructure, can have wide-ranging effects: making households more prone to water-borne illnesses, forcing a diet of unhealthy packaged food, raising stress levels, and creating hygiene problems that make people more likely to miss work. A report from DigDeep, a nonprofit focused on increasing clean water access in the U.S., and the U.S. Water Alliance found that the strongest indicator of whether a household suffers from plumbing poverty is race, exceeding even income, urbanization and educational attainment. Native Americans were more likely than any other demographic to face water access issues. “In the U.S., the same structural violence that we see in so many resource disparities is replicated with water,” Young says. “Marginalized communities are the ones that face the infrastructure problems, although it should be said that water problems are not unique to low-income communities.” For example, Young says, lead contamination is found even in wealthy cities.

“Unfinished Business”

2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 Sanitation Facilities Construction Total Needs

Sanitation Facilities Construction Appropriations

Source: Universal Access to Clean Water for Tribes in the Colorado River Basin, 2021

16 • W A T E R E D U C A T I O N C O L O R A D O

n the late-20th century, the Ute Mountain Ute and Southern Ute tribes negotiated to end some of their water woes. Eventually, the tribes decided to leverage their senior water rights—the Colorado Ute tribes’ water rights date to 1868, when the federal government established

their reservation—to secure their future. In a “wet water” settlement, the Ute Mountain Ute Tribe agreed to take a later priority date for their water on the Mancos and Dolores rivers, rather than superseding existing communities with more junior rights. In exchange, the tribe received allocations from the Dolores Project that brought drinking water for household use and economic development to the tribal community of Towaoc for the first time. The project stores water in McPhee Reservoir, which feeds a pipeline delivering drinking water from Cortez to Towaoc. The Dolores Project irrigation allocation provided water for the tribe’s 7,700 acre farm. Mike Preston, who served on the Ute Mountain Ute Tribe’s negotiating team, said the Colorado Ute Indian Water Rights Settlement of 1986, followed by a federal settlement act in 1988 and amendments in 2000, was “transformational” to the Ute Mountain Ute, leading to a new agricultural operation and urban development. The same settlement gave both tribes water allocations from the Animas-La Plata Project. While the project’s reservoir, Lake Nighthorse, was constructed, infrastructure to deliver water from the reservoir to the tribes was never built. Still today, the water remains inaccessible to the tribes due to lack of infrastructure. The experience also showed how years-long, complex water negotiations that don’t include infrastructure to store and deliver water may not be the best avenue for tribes looking to quickly develop access to safe drinking water, Preston says. Especially recognizing that this is “probably the worst 20-year [drought] period in the Southwest since the Anasazi left.” Preston said efforts to meet the economic and health needs of tribes for running water must be expedited. Now as governments debate a framework to govern management of increasingly scarce Colorado River water, tribes are elevating their voices. A letter to the U.S. Interior Department from 20 tribes who collectively own rights to about a quarter of the water from the river system said the next framework must “recognize and include support for tribal access to clean water,” among other issues. Still, Preston and many others advocate that access to safe drinking water should be resolved quickly, beyond the confines of river-wide negotiations and beyond the decades-long negotiations of settlements. In 1959, IHS was granted authority to address water and sanitation deficiencies on reservations, more than a decade before Congress passed the Safe Drinking Water Act—for IHS, that means delivering clean water supply, sewage, and solid waste disposal facilities. However, funding has

Allen Best

Water hauling hours and instructions are posted at the Rough Rock Chapter House on the Navajo Reservation, on the road between Kayenta and Many Farms, Ariz. An estimated 40% of Navajo Nation residents lack running water.

fallen short of that directive. While water and sanitation needs have regularly totaled more than $2.5 billion, the most the program has ever been appropriated in a single year is $192 million. That leaves tribes with few funding options. The EPA offers grants for tribes to comply with its clean water rules, but those generally don’t support new infrastructure. The U.S. Department of Agriculture’s Rural Development program can back new water and wastewater facilities, as can the U.S. Bureau of Reclamation, but both have less money available than IHS. State programs traditionally are less of a focus for tribes. When Ute Mountain Ute leaders wanted to build a new drinking water treatment plant for the White Mesa satellite community—where residents

19×

Native Americans are 19 times more likely than white households to lack indoor plumbing

CONTINUED ON PAGE 20

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Water ’22 is a year-long celebration of Colorado’s water, dedicated to the idea that “It all starts here.” It’s about Coloradans from all corners of the state, and all walks of life, recognizing the value of water, and growing in understanding of how water connects all people, upstream and downstream, past, present and future. It’s about coming together as a statewide community to collectively act, in the face of drought and climate change, in order to make sure our water can meet all of the needs of today and for future generations.

2022 is a milestone year for water in Colorado. It is the 100th anniversary of the Colorado River Compact; the 50th anniversary of the Clean Water Act; the 20th anniversary of Water Education Colorado; and the year when the 2015 Colorado Water Plan will be updated to continue our long history of ensuring high quality water to support our state’s wide range of water uses and values.

Water ’22 invites you to learn more about your water, where it comes from, and ways to protect it for future generations. It’s everybody’s job to take care of this shared resource and Colorado needs YOU in 2022!

Take the Water ‘22 pledge to engage in

Engage in events and activities

“22 Ways to Care for Colorado Water

throughout 2022 including a statewide

in 2022” at Water22.org then share a

book club and author talks, volunteer

story or post of yourself taking one of

days, film screenings, a student water

the actions with the hashtag #Water22.

awareness week in schools, a watershed

Each month, five Coloradans who share

beer competition, on-the-ground tours,

their commitment will be randomly

and much more!

selected to win incredible prizes!

#Water22

Water ’22 is a campaign spearheaded by 18 • W A T E R E D U C A T I O N C O L O R A D O

Water22.org

For more information about the campaign, visit Water22.org

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CONTINUED FROM PAGE 17

3.5×

COVID-19 affected Native Americans at a rate 3.5 times higher than the white population

70×

hauling water can cost 70 times more than piped water delivery

often complain of stomachaches after drinking tap water—the tribe’s director of planning and development Bernadette Cuthair wasn’t sure where to turn first. A grant writer helped Cuthair negotiate $8 million in USDA funding by breaking the project into a series of small upgrades that complied with the narrow bounds of the program. Navigating that red tape was a headache, but did result in a much-needed advanced SCADA system to monitor the water’s chemical levels. “People are finally quitting with the bottled water and drinking right from the tap,” Cuthair says. The Southern Ute Indian Tribe, too, managed to finance a state-of-the-art water treatment facility and expanded water storage pond in 2019. Both are vital to tribal access to clean water, although only 460 households are served by the facility, as the majority of homes on the reservation are outside the reach of the infrastructure delivery system, says Kathy Rall, manager of the Southern Ute Indian Tribe’s Water Resources Division. University of Colorado senior fellow Anne Castle, who serves on the leadership team of the Water and Tribes Initiative, says that not every tribe has the capacity to chase funding. The initiative is working to enhance tribal capacity and advance sustainable water management; it’s also the group that’s leading the Universal Access to Clean Water for Tribal Communities project. “It’s difficult for tribes, well it’s difficult for anyone, to understand what these different funding programs are and what is best suited for their needs,” she says. “There’s an increasing recognition that this issue’s time has come and this is part of the unfinished business of our republic,” Castle says.

New Attention Brings Valuable Funding

30%

of people on the Navajo Nation lack access to running water and must haul water

20 • W A T E R E D U C A T I O N C O L O R A D O

s the COVID-19 pandemic swept the country, Native Americans were especially hard hit. Federal data showed that the COVID-19 mortality rate among Indigenous peoples was the highest of any demographic. The Navajo Nation experienced more than 52,730 cases and 1,657 deaths as of mid-March 2022. A May 2020 study published in the Journal of Public Health Management and Practice found that plumbing poverty was the greatest factor associated with Native American COVID cases. Without clean water, households couldn’t wash their hands or even shelter in place safely. Water haulers faced exposure on every trip. That tragedy, however, had a silver lining. “COVID took the issue of water access and turned

it into a matter of life or death,” says Tanana. Media coverage of the Navajo Nation’s extreme COVID rates brought attention to the government’s lapsed infrastructure promises. The reaction from Washington, D.C., was swift, buoyed by the national Black Lives Matter protests and the government’s stimulus spending. The CARES Act, passed in March 2020, provided $10 million for IHS to install temporary water stations and storage tanks on tribal lands, although restrictions on when the money could be spent limited its impact. In July 2021, Sen. Michael Bennet, D-Colo., and Sen. Martin Heinrich, D-N.M., introduced a bill to provide $3.4 billion to the IHS sanitation and facilities services and boost funding for other tribal clean water programs. That bill was incorporated into the $1.2 trillion Infrastructure Investment and Jobs Act that passed in November 2021, with a final $3.5 billion over five years for the IHS program. “I’m pleased the bipartisan infrastructure bill— which is now law—draws heavily on our Tribal Access to Clean Water Act,” Bennet said in a statement to Headwaters magazine. “This is the first step of many to reduce this shameful disparity and help ensure that tribal communities have access to safe, clean water.”

Towaoc, Colo., is home to tribal headquarters on the Ute Mountain Ute Reservation. The town receives clean drinking water that’s stored in the Dolores Project’s McPhee Reservoir, treated in Cortez and piped to Towaoc.

In mid-December 2021, IHS held a consultation with tribes to gather input on how to spend the funds, which will be distributed over the next five years. But experts say the $3.5 billion should represent just a down payment—not the final bill—on clean water access and must be accompanied by technical support. Of particular importance is operations and maintenance support; many tribes say the problems that led to inadequate plumbing in the first place make it a challenge to stay on top of regular repairs and upgrades. The unique challenges that each tribe faces also mean the federal government needs to work on custom solutions, rather than a one-size-fits-all approach. A Bennet aide said the office is working to enhance technical assistance and operations and management support. The Water and Tribes Initiative advocates for a “whole-of-government” approach with officials who can coordinate rather than force tribes to navigate the maze of agencies with water authority, as Cuthair did. To encourage adoption of such an approach, the initiative created roadmaps for IHS, the EPA, the U.S. Bureau of Reclamation, the U.S. Department of Agriculture, and for Congress. The Biden administration revived an interagency task force on Tribal Water Infrastructure as part of a

Dean Krakel

broader policy of increasing outreach to tribes. The EPA in October issued an action plan to work with tribes on a sustainable water future, including assurances of greater consultation in water policy, more grant access, and establishing baseline environmental water quality standards for Native American reservations. Bidtah Becker, a California Environmental Protection Agency official and former Navajo Tribal Utility Authority attorney, says the true measure of the government’s commitment will be in the “sense of urgency” to get shovels in the ground. But the fact that this is even under discussion, she said, reflects the decades of work that have made Native issues more salient. “In some ways it’s the confluence of Black Lives Matter, climate change and COVID that brought new attention to that,” Becker says. “But I think that’s only part of the story. It’s really about human progress. We are products of our history and everything we have gone through. It’s history that got us to the point where we are now.” H

20.2%

The total water and sanitation need reported through the Indian Health Service's Sanitation Deficiency System increased by 20.2% from fiscal year 2019 to 2020

Jason Plautz is a journalist based in Denver specializing in environmental policy. His writing has appeared in High Country News, Reveal, HuffPost, National Journal, and Undark, among other outlets.

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Tribes Call for Inclusion on the Colorado River BY KALEN GOODLUCK

22 • W A T E R E D U C A T I O N C O L O R A D O

Christi Bode

They're seeking opportunity, fairness, and a voice in decision making after a century of exclusion M

Daryl Vigil, water administrator for the Jicarilla Apache Nation, stands along the banks of the Navajo River, a tributary of the San Juan River, which runs through the Jicarilla Apache Reservation. Vigil is co-director of the Water and Tribes Initiative, which aims to forward collaborative decision making and enhance the capacity of the tribes in the Colorado River Basin.

id-morning in early September 2020, leaders from eight tribal nations met with Arizona state legislators, water engineers and policy experts via Zoom. One by one, each recounted their tribe’s history and efforts to secure water for their citizens. Half of the tribes in Arizona have unresolved claims to water. Of the 30 federally recognized sovereign tribal nations in the U.S. segment of Colorado River Basin, the vast majority, 22, are in Arizona. Meeting that day was the Arizona Governor’s Water Augmentation, Innovation and Conservation Council, a committee of state legislators and water policy experts convened to plan for Arizona’s share of diminishing resources in the Colorado River Basin. Not quite a year later, in August 2021, federal officials issued the first-ever shortage declaration on the river, resulting in substantial cuts to Arizona’s share of Colorado River water. The state has been working with some of the tribes with resolved, adjudicated water rights to help make up for low water levels. On that September morning in 2020, two things had become clear: First, tribes like the Navajo Nation, Pascua Yaqui Tribe, and Yavapai-Apache Nation have found a couple of conditions in Arizona’s policy toward negotiating Indian water settlements unacceptable, thus their water rights remain unsettled. And second, tribal nations had been collaborative partners to surrounding communities and were, and continue to be, positioned to play an increasingly pivotal role throughout the basin as more tribal water rights are settled and basin-wide water supplies continue to decline. Tribes have played a pivotal role in leasing water to support other water users and states as they cope with water shortage, for example. But with so many tribes who still have unsettled water rights and Colorado River flows declining, big questions remain for the 40 million people spread throughout the basin in seven U.S. States and

Mexico—many of those questions center around the tribes.

TICKING CLOCK

veryone in the basin can hear the clock, ominously dripping time like a leaky faucet. Drip: There is less water than ever before with the basin ensnared in a 22-year megadrought, the worst in the past 1,200 years, according to a recent study published in the journal Nature Climate Change. Drop: Without swift action to conserve water under the growing pressure of demand, the basin may be hurtling toward a water crisis. Drip: The basin’s existing water shortage management framework is set to expire in 2026 so negotiations to craft the next framework are underway; will tribal nations be included in those negotiations? Drop: How will water shortages affect the tribal nations in the Colorado River Basin and what role will those tribes play as all water users cope with shortage? Generally, the Colorado River Basin’s tribes have some of the senior-most water rights on the river, based on federally “reserved” water rights with priority dates aligned with the dates reservations were established, some as early as 1865. But even today, 12 of the basin’s tribes (most in Arizona) have unresolved water rights claims, and eight of those 12 have unquantified rights—meaning the amount of water they have a right to is not yet determined. Simply securing those water rights remains a time-consuming and arduous endeavor, in costly settlement negotiations amidst a scrum of other water users staking claims. The water held by the basin tribes who have legally quantified water rights amounts to no small sum: 22 tribal nations retain 3.2 million acre-feet of water, or an estimated 22% to 26% of all annual water supplies in the basin, according to a 2021 brief from the Water and Tribes Initiative. This amount will likely increase over the years once more tribal water claims are resolved.

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This map entitled Colorado River, Kyawinan' A'honna, depicts the entire basin from the river's headwaters in Colorado to the Sea of Cortez. It is part of a collaborative project of A:shiwi Map Art—a revisionist effort to elaborate Zuni history and challenge ideas of atlas-style mapping. The A:shiwi A:wan Museum and Heritage Center says “these maps help us understand where we came from and why Zuni culture is associated with places far away from our reservation … as tools that help set the record straight, these maps serve as a means to mutual understanding by asserting that we live in a world with diverse ways of knowing.”

Even for tribes with settled or adjudicated water rights, some can’t access the full extent of that water because of lack of infrastructure or funding, or both. In total, just under half, or 1.5 million-acre-feet, of settled or adjudicated tribal rights have not yet been put to use by the tribes. When adding together that unused water and unquantified water, and considering that tribes plan to fully develop and use their water, other water users in the basin wonder how it will look to integrate expanded tribal water use with existing water uses as water supplies continue to dwindle.

LACK OF REPRESENTATION

n one blinding instant, a flashbulb floods the adobe-walled room, illuminating a row of stoic men: seven state water commissioners standing behind then-Secretary of Commerce Herbert Hoover who sat at a

24 • W A T E R E D U C A T I O N C O L O R A D O

“We were surviving here on government rations in 1922 when the Law of the River was created.” —Daryl Vigil | Jicarilla Apache Nation & Water and Tribes Initiative

desk. In front of them lies the 1922 Colorado River Compact, the formative agreement to carve up flows of the Colorado River. Within the Palace of the Governors in Santa Fe, N.M., these men divided the river into an upper and lower basin, apportioning the rights to consume 15 million acre-feet of water— their estimation of average annual river flow at the time—between the seven U.S. basin states: Colorado, New Mexico, Utah and Wyoming of the upper basin, and Arizona, California and Nevada of the lower basin, with the opportunity for lower basin states to develop an additional 1 million acre-feet from tributaries below Lee Ferry, Ariz. The compact ushered in a new era of wa-

ter management for the Colorado River Basin. But now, 100 years later, when facilitator of the Water and Tribes Initiative, Daryl Vigil, peers at this photograph of Hoover and the state water commissioners, he sees an “all monochromatic photo of older white gentlemen” who made no plan for apportioning any share of water to Native American tribes. Since the beginning of U.S. tribal water law, sovereign tribal nations in the basin have been excluded from cornerstone water management decisions despite having senior title to water. Native American water rights were first officially recognized in 1908, over a decade before the Colorado River Compact was signed, with the U.S. Supreme Court’s

Ronnie Cachini / A:shiwi A:wan Museum and Heritage Center

There are 30 federally recognized tribes in the Colorado River Basin, including the Southern Ute Indian Tribe and the Ute Mountain Ute Tribe in southwest Colorado. While other tribes have ancestral lands in Colorado, those are the only two reservations in the state. Of the 30 tribes in the basin, 22 tribes have recognized rights to use 22–26% of the basin’s average annual water supply—many are not fully using their water rights. In addition to those recognized rights, 12 tribes have unresolved water rights claims. As more water rights claims are resolved in the future, the overall volume of tribal water rights in the basin will likely increase.

Great Salt Lake 12,440,000 ACRE-FEET/YEAR

Salt Lake City

Colorado River mean flow at Lees Ferry 2000-2018

Cheyenne

1 ROCKY MOUNTAIN N. P.

3,206,088 ACRE-FEET/YEAR

Recognized tribal water rights in the Colorado River Basin

±404,696 ACRE-FEET/YEAR

Unresolved and/or unquantified tribal water rights still pending litigation

Denver

Source: The Status of Tribal Water Rights in the Colorado River Basin Policy Brief, Water and Tribes Initiative, 2021

12 13

GRAND CANYON N. P.

HOOVER DAM

UPPER BASIN

CO 2 4

15 Santa Fe

16 19

Salton Sea

Phoenix

27 28

Yuma

26 UNI

TED S ME TATES XIC O

PACIFIC OCEAN

ive

Los Angeles

San Diego

GLEN CANYON DAM

Lake Powell

14 Lake Las Vegas Mead

d ora

23 24

29 30

Gulf of California

MEXICO Native American tribal lands in the Colorado River Basin 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Ute Indian Tribe Southern Ute Indian Tribe Ute Mountain Ute Tribe Jicarilla Apache Nation Navajo Nation Pueblo of Zuni Hopi Tribe San Juan Southern Paiute Tribe Kaibab Band of Paiute Indians Havasupai Tribe

11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

Hualapai Indian Tribe Shivwits Band of Paiute Indian Tribe of Utah Moapa Band of Paiute Indians Las Vegas Tribe of Paiute Indians Fort Mojave Indian Tribe Chemehuevi Indian Tribe Colorado River Indian Tribes Yavapai-Apache Nation Yavapai-Prescott Indian Tribe Tonto Apache Tribe

21. 22. 23. 24. 25. 26. 27. 28. 29. 30.

White Mountain Apache Tribe San Carlos Apache Tribe Fort McDowell Yavapai Nation Salt River Pima-Maricopa Indian Community Gila River Indian Community Ak-Chin Indian Community Cocopah Indian Tribe Quechan Indian Tribe Tohono O’odham Nation Pascua Yaqui Tribe

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Winters v. United States decision. The court found that when the federal government “reserved” territories known as reservations, it too had “reserved” sufficient water to fulfill the purposes of the reservations—these water rights are considered established at the date when the reservation was created, making them senior to all uses that came later. But having the right to reserved water didn’t mean that the tribes had access to actual “wet” water or the legal representation to quantify their water rights. When the 1922 compact was signed, tribes

reserved water rights were needed for some of the tribes in the lower basin to answer that question. A special master for the case determined the future needs of each reservation by assessing the amount of practicably irrigable acres and reserving water to irrigate that land rather than considering the reservations’ populations. In his proposed decree, which was upheld by the Supreme Court, the special master entered a quantified water right for five reservations on the mainstem of the Colorado River, granting 905,496 acre-feet of water for 135,636 irrigable acres.

“What’s rightfully ours is ours by God. We need to continue to save it for the future of our tribe.” —Lyndreth Wall | Ute Mountain Ute Tribe

were surviving a multitude of disastrous living conditions and forced assimilation produced by federal Indian policy, established after U.S. violent colonial expansion. Indigenous peoples weren’t recognized as U.S. citizens until 1924, tribal governance wasn’t federally recognized until 1934, and Native Americans couldn’t vote in every state until the 1960s. “We were surviving here on government rations in 1922 when the Law of the River was created,” says Vigil. A 1928 survey entitled “The Problem of Indian Administration” found that 26 Western Native American reservations and their economic bases were crumbling under management of the U.S. Department of the Interior (DOI), asserting that colonialism largely destroyed their ability to hunt, gather and fish. The report recommended educating tribes to effectively use their land and water rights, saying that administrators “should be given the duty of seeing that the Indians secure their rightful share of water.” This recommendation was not enough. Assigning concrete legal title to tribal water succumbed to federal delay—a defining feature of water rights disputes for all tribal nations. Tribes gained some ground when, in 1963, tribal water policy and Colorado River policy intersected in the U.S. Supreme Court’s Arizona v. California decision. Lengthy litigation led up to the decision, with Arizona filing suit in the U.S. Supreme Court to determine how much Colorado River water it could use. The U.S. found it had to assess what

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After the case established the standard of quantifying the tribal reserved water right as looking at the amount of water required to irrigate the irrigable acreage on the tribal land, the push to quantify more tribal water rights ensued. But Supreme Court rulings “grew more negative,” according to a presentation from DOI. In 1989, DOI adopted the policy to resolve Indian water disputes through settlement rather than litigation, creating the Secretary’s Indian Water Rights Office. To reach agreement, Indigenous nations must negotiate their rights within a massive tangle of other users staking claims to water within the state where their reservation is located, which can take decades. Once all parties concur, Congress must approve the agreement by passing legislation to fund any tribal water infrastructure projects. As federal tribal water policy evolved, so too did Colorado River policy. After the 1922 compact, a series of layered agreements— including Arizona v. California and other court decisions, congressional acts, legal settlements, treaties and compacts—known collectively as the “Law of the River” have come to govern the way water is managed and divided throughout the basin. The latest layers of the Law of the River have been implemented since 2000, in response to years of drought. In 2007, the U.S. Secretary of the Interior adopted the Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead. The Interim Guidelines outline

a method to balance the amount of water available between the upper and lower basins. In 2019, upper and lower basin Drought Contingency Plans (DCPs) were developed as additional frameworks to address water shortages and water-saving rules. The upper basin continues to “equalize” the contents of Lake Powell and Lake Mead per the 2007 guidelines, and continues to pursue water augmentation activities such as cloud seeding. It is also exploring the possibility of developing a demand management program in which water saved or not used in the upper basin could be stored in Powell as a 500,000 acre-foot drought pool, though the Colorado Water Conservation Board put a “hard pause” on Colorado’s demand management investigation in March 2022. For the lower basin, the DCP, a Binational Water Scarcity Contingency Plan with Mexico, and the 2007 guidelines lay out cuts in water deliveries from the Colorado River, triggered by projections of Lake Mead storage elevations. The interim guidelines already outlined cuts but the DCP added additional delivery reductions for the lower basin states and Mexico to absorb. The greatest cuts to lower basin water use will come from Arizona and California but the entire lower basin, including Mexico, will share in scarcity. When these guidelines and plans were crafted, all but the Lower Basin DCP received little to no tribal input. These plans will expire in 2026, and negotiations for the next phase of shortage-sharing agreements are just beginning. Vigil, who is also water administrator for the Jicarilla Apache Nation from New Mexico, joined the Water and Tribes Initiative in 2017 to facilitate tribal discussions, protect water rights, and unify tribal interests within the Colorado River Basin. Their tribal leader forums helped spur a coalition of the tribes in the basin to call for inclusion in water framework negotiations. When new guidelines are developed to govern river management beyond 2026, how will they affect existing tribal water rights or unresolved water claims? “Those are questions that are not yet clear to the Ute Mountain Ute Tribe and probably other tribes,” says Leland Begay, water attorney for the Ute Mountain Ute Tribe, which has adjudicated water rights in Colorado but has not yet resolved its water rights in New Mexico and Utah.

Time Immemorial

The Utes were created by Sinawav, the creator, and placed in the mountains.

1–1200s

Ancestral Puebloans, also known as Anasazi, occupy the Southwest.

1598

Ute Mountain Ute Tribal Councilman Lyndreth Wall stands on the reservation, with Ute Mountain in the distance. Wall spent his childhood summers at his grandparents’ sheep camp on Ute Mountain, where the water was sweet and well taken care of in the 1970s, in contrast to the water in Towaoc, which made people sick at the time.

Spanish settle New Mexico, with Juan de Onate claiming the Rio Grande drainage; early trade is established between the Utes and the Spanish.

1637

Utes and Spanish conflict for first time on record; alliances and conflicts continue for many years to follow.

1868

Treaty of 1868 reduced Ute lands from about 56 million acres to around 18 million acres and established the first Ute reservation in Colorado; before the treaty, the Ute homeland extended across Colorado, Utah, New Mexico, and Arizona, with hunting grounds reaching into Wyoming, Nebraska, Kansas, Oklahoma, and Texas.

1873

Brunot Agreement is signed by the Utes, ceding their lands in the San Juan Mountain mining area.

Southern Ute and Ute Mountain Ute tribal council members stand alongside U.S. Bureau of Reclamation, state and city officials for a 2018 ribbon cutting at Lake Nighthorse. The reservoir’s construction was authorized to meet tribal water needs but, though it began filling in 2009, the tribes are still unable to access their water.

SETTLED WATER RIGHTS FOR THE COLORADO UTE TRIBES

uring the hot summers of his childhood, Lyndreth Wall of the Ute Mountain Ute Tribe would take refuge on Ute Mountain in southwestern Colorado, herding livestock at his grandparents’ sheep camp. They spoke only Ute to him, which he picked up fast, at least conversationally. In those days, the 1970s, the water on Ute Mountain was delicious. “The tribe took

care of the water there,” Wall says. But his home tap water in Towaoc tasted like metal. It was “disgusting,” he says, and could make you sick. In White Mesa, their western tribal community in Utah, the water was worse— contaminated by radioactive waste. For young Wall, his neighbors, family and livestock, the journey to procure drinkable water would be a 30– to 120–mile round trip excursion from Towaoc to Cortez or Mancos, even Durango, Colo. Wall remembers his parents packing buckets in their family

Top: Marysa Frost, Bottom: Jeremy Wade Shockley / Southern Ute Drum

1876

Colorado Statehood is approved, making Colorado the 38th and “Centennial” state, given the 100th anniversary of the United States that year.

1879

Meeker Incident sees northern Utes revolt against subjugation to Euro-American norms at the White River Indian Agency on the Ute Reservation, killing Indian Agent Nathan Meeker and 10 others. The incident ultimately results in their removal from Colorado to Utah.

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pickup—the Wall’s buckets mixed with those of neighbors. This supply would last a few days before they would need more. Today, more Ute Mountain Ute tribal members have water for drinking and irrigation thanks to the 1986 Colorado Ute Indian Water Rights Final Settlement Agreement, followed two years later by a federal settlement act, and by amendments in 2000, all of which they share with the Southern Ute Indian Tribe. The settlement places the Colorado Ute tribes among the four tribes in the upper Colorado River Basin that have completed water rights settlements, which also means that the State of Colorado is no longer negotiating any tribal settlement agreements. For the Ute Mountain Ute Tribe, the settlement meant access to Dolores Project water, an entitlement to Animas-La Plata Project water, and rights to over 27,000 acre-feet of water from rivers that flow near or through their reservation. Most years, the Ute Mountain Ute Tribe can access their 25,100 acre-foot water storage allocation from the Dolores Project’s McPhee Reservoir in southwestern Colorado. Water from McPhee began to flow to the Ute Mountain

The marina at Vallecito Reservoir on the Pine River in Bayfield, Colo., is beached after the 2021 season brought record-low water levels. The Southern Ute Indian Tribe depends on water stored in Vallecito.

solidified through the settlement,” she says. The Southern Ute Indian Tribe also received an allocation of Animas-La Plata Project water—but the infrastructure was never built for either tribe to access that water. “Ever since [the Animas-La Plata Project] was constructed, we’ve never used a drop

“It was heartbreaking … when we had to make the decision to shelve the irrigation component in order to get this settlement.” —Christine Arbogast | Kogovsek & Associates

Ute Tribe in 1994 delivering clean drinking water to the tribe for the first time in their history and supporting the development of a hotel, travel center and casino, which provide vital tribal employment and income. The tribe’s new irrigation water from the Dolores Project, up to 23,300 acre-feet per year, supported the development of the highly productive 7,700-acre Ute Mountain Ute Farm and Ranch Enterprise and Bow and Arrow corn mill. For the Southern Ute Indian Tribe, the settlement wasn’t quite as momentous. “We have seven sources of water, seven rivers, that run to the tribe, so the tribe had been accessing those waters pre-settlement,” says Kathy Rall, head of the water resources division for the Southern Ute Indian Tribe. Before the settlement, the tribe didn’t have quantified rights to that water, Rall says. “Those rights were hammered out and

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of it, yet we have a certain percentage, not only to us, but also our sister tribe, the Southern Ute,” says Wall, who is now a tribal councilman for the Ute Mountain Ute Tribe. The project allocated more than 60,000 acre-feet per year of municipal and industrial water to the Ute Mountain Ute Tribe and the Southern Ute Indian Tribe, but a series of obstacles has made this water inaccessible. The settlement authorized the construction of Lake Nighthorse, just south of Durango, to store Animas-La Plata water for tribal water uses. The project was envisioned to bring water for irrigation, municipal and industrial uses to the tribes and non-tribal water users. But environmental and fiscal concerns resulted in the project being downsized. A lawsuit halted the construction of Lake Nighthorse’s Ridges Basin Dam in

1992. Groups including the Environmental Defense Fund, Sierra Club, and the Taxpayers for the Animas River argued the dam’s cost was an undue burden for taxpayers and that its construction would threaten the Colorado pikeminnow fish population, which was federally listed as endangered at the time. Christine Arbogast, lobbyist for the Ute Mountain Ute Tribe, Southern Ute Indian Tribe, and neighboring water districts and municipalities, remembers a meeting where an environmental advocate said that with the amount of funding required to build the reservoir project, they could supply the tribe with bottled water for life. “That was the kind of mentality on the side of the environmental community,” says Arbogast. As project proponents tried to advance Lake Nighthorse, part of the permitting requirement was to propose alternatives to the project. To address the endangered fish issues, the U.S. Fish and Wildlife Service approved an alternative that would allow for reservoir construction but with certain requirements, including a new San Juan River Basin Recovery Implementation Program. The recovery program would go on to manage the river to recover the endangered Colorado pikeminnow and the razorback sucker while allowing water development to continue. To carry out the Animas-La Plata Project, a 2000 settlement amendment restricted the water in Lake Nighthorse to municipal and industrial use, excluding irrigation. Now referred to as “Animas-La Plata Lite” there

Jeremy Wade Shockley

1880

The Ute Agreement is signed, further reducing the Colorado Ute reservation to a strip across the southwest border between Colorado and New Mexico.

1887

Dawes Act divides all U.S. Native American lands into allotments belonging to individual tribal members; Colorado’s Weenuche Ute band finds the idea so alien they don’t accept allotments and instead move to what will become the Ute Mountain Ute Reservation.

1895 Colorado River Indian Tribes Chairwoman Amelia Flores greets Tanya Trujillo, the Interior Department’s assistant secretary for water and science, at the Colorado River Water Users Association December 2021 conference.

was no longer any plan to construct the irrigation canals that would have connected Lake Nighthorse to the tribes and even neighboring water districts and municipalities that were counting on these water supplies throughout the negotiations. The tribes scrapped their plans to expand farm lands as a result. “It was heartbreaking to every single one of them, including the tribes, when we had to make the decision to shelve the irrigation component in order to get this settlement,” Arbogast says. Some positive outcomes resulted from the settlement, including quantified and adjudicated water rights for the Southern Ute Indian Tribe, access to Dolores Project water for the Ute Mountain Ute Tribe, and funding for both tribes, Rall says. But ongoing lack of access to water stored in Lake Nighthorse and the inability to use that water, if accessed, for irrigation, was “disastrous” she says. When the project was downsized to the “lite” version “we just kind of said, ‘OK, we’re going to get what we get,’” Rall says. “The tribe went, ‘If we don’t settle now, who knows what we’ll end up with.’” The settlement means that the tribes’ water allocations are protected, which “does offer the tribes a measure of security in their water rights,” says Amy Ostdiek, head of the Colorado Water Conservation Board’s Interstate and Federal Section. “But there are still critical needs in terms of infrastructure and access to clean drinking water.”

Courtesy U.S. Bureau of Reclamation / Flickr

As the settlement stipulates, the moment the tribes begin to use water from Lake Nighthorse, they will each inherit an annual bill of around $800,000 in operations and maintenance costs for the dam and pumping facilities that the federal government is currently footing. At the moment, there is still no infrastructure to deliver the water to the tribes, and the tribes are not prepared to take on those costs, so they haven’t used any of their water. This may change due to the $2.5 billion earmarked in the 2021 Infrastructure Investment and Jobs Act for completion of authorized Indian water rights settlements. Both Colorado Ute tribes are pursuing that funding, with full support from the State of Colorado, according to the Colorado Water Conservation Board (CWCB), but whether they will receive it remains to be seen. Information sessions on the bill between tribal nations and DOI are ongoing. “We’re trying to find alternatives and ways that we can utilize our water in [Lake] Nighthorse. We want it and it seems like we’re having a water war,” says Wall. “What’s rightfully ours is ours by God. We need to continue to save it for the future of our tribe.”

WATER OR LAND, NOT BOTH

ettling and quantifying tribal water rights claims isn’t just beneficial to tribal nations. The state in which a reservation is located and other water users there

Hunter Act splits Ute lands into two parcels within Colorado; about 85% of the lands are declared excess and opened to white settlers.

1908

Winters v. United States establishes that when Congress reserves land for Native American tribes, it also reserves water sufficient to fulfill the purpose of the reservation, with a water rights priority date the same as the date the reservation was established.

1918

Consolidated Ute Indian Reservation is established.

1922

Colorado River Compact divides waters of the Colorado River, with 7.5 million acre-feet per year each for the upper basin and the lower basin. Tribes were not included in negotiations and the only mention of tribes in the compact is to say that it should not affect U.S. obligations to Indian tribes.

1924

Indian Citizenship Act grants citizenship to all Indigenous people born in the United States, leaving the right to vote to be governed by states.

1934

Wheeler-Howard Act provides for self-government of tribes by tribal councils.

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Water levels in Lake Mead have dropped to historic lows over the past year, triggering a shortage declaration on the Colorado River. Some of the frameworks that govern how the river is managed are set to expire in 2026. As states and stakeholders negotiate the next management framework, tribal nations want to make sure they have a seat at the table.

benefit from the certainty of knowing how much water is allocated to the tribes so they can make plans to live within and stretch their own share or to work together to send water where it’s most needed. But Arizona is home, at least partially, to 11 of the 12 tribal nations in the basin who still have unresolved claims to Colorado River water—resulting in uncertainty for the state and the tribes. Many tribal leaders are frustrated by the state’s unprecedented condition for tribes to secure their water rights: In exchange, tribal nations must surrender their right to freely enter fee lands into trust, an essential administrative program of the Bureau of Indian Affairs that lets tribes recover their ancestral homelands. Instead, tribes would need congressional approval to have the Interior Secretary take lands into trust. “We just believe that the congressional process is a more equitable forum for the discussion of those lands into trust,” says Tom Buschatzke, director of the Arizona Department of Water Resources. He cites the importance of hearing from local com-

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“I think we’re starting to understand now that if we can all work together to utilize that water, it will be best for the entire region.” —Peter Ortego | Ute Mountain Ute Tribe

munities that could be impacted when the tribes bring additional ancestral homelands into trust and ensuring “politically elected leaders get to make the decision.” That stipulation is a nonstarter for many tribes, and puts them in a precarious position, weighing their right to re-acquire their ancestral homelands against securing water for their people. “That’s something we will never agree to,” Yavapai-Apache Nation Chairman Jon Huey told the Governor’s Water Augmentation Innovation and Conservation Council during that September 2020 meeting. The YavapaiApache Nation plans to bring land into trust, re-acquiring its homeland to build housing for the growing tribal population. Already, leaders from the Navajo Nation, Tonto Apache Tribe, Yavapai-Apache Nation, and Pascua Yaqui Tribe in southern Arizona have worked for decades with the state and

other water districts to reach a settlement. For example, the Navajo Nation has been in recurring negotiations since 1993. Tribes also object to a condition proposed by Arizona officials that they waive their right to object to future off-reservation groundwater pumping. Despite hearing from leaders like Huey, the state has not changed its position. Buschatzke says these conditions are just part of the “give and take” nature of settlements. “Some things you give more of, some things you give less of,” he says. “And the whole package has to fit together for both sides at the end of the day in a way that they can live with it and in a way that they believe, hopefully, that they’re better off with the package than they are without the package.” DOI remains dedicated to facilitating settlement discussions and is aware of the tribal concerns toward Arizona’s anti-fee-to-trust

Flickr user Jeffrey Hayes

policy. “We are working from the federal perspective closely with tribal partners and with non-federal entities like the State of Arizona to bring these issues to conclusion and resolution,” says Tanya Trujillo, assistant secretary for water and science at DOI, who has been part of these tribal settlement discussions.

WORKING TOGETHER IN SHORTAGE

espite some of the barriers to settlement, Buschatzke concedes that settlements provide certainty for tribes and other water users, as well as a way to work collaboratively. And now more than ever, the need to collaborate with tribes has hit harder than in the past. The upper basin states are subject to fluctuations in hydrology, which determine the amount of Colorado River water available for their use. While the 1922 compact allocated the consumptive use of 7.5 million acre-feet of water per year to each the upper and lower basins, the upper basin regularly uses less Colorado River water than agreed to—about 4 million acre-feet per year since 1990. That’s, in part, because the upper

basin hasn’t fully developed reservoirs to store extra water in times of plenty and to use its full allocation. Per the compact, upper basin states cannot deplete the river at Lee Ferry, the dividing point between the upper and lower basins, below a certain amount. That non-depletion requirement means the upper basin will likely shoulder the burden of declining flows into the future, and may have to continue to use less water. Lower basin states rely on supplies stored in Lake Mead, the basin’s largest reservoir, which reached a historic low of just 35% of capacity in August 2021. As Mead’s water level has receded, the lower basin has begun to take cuts to the amount of water it’s drawing from the reservoir, as outlined in the 2019 Drought Contingency Plans. The first big cuts are coming from Arizona—this year it will take 18% less Colorado River water, coming almost entirely from the Central Arizona Project (CAP), slashing its CAP water use by about 30%. The CAP pipes Colorado River water to Phoenix and Tucson, and to irrigators and tribal nations in central and southern Arizona. Agricultural water users will be the first to feel these water reductions, with CAP agricultural water deliveries, mostly in Pinal County, reduced by 65%. If Lake Mead levels continue to fall, deliveries to lower basin states will continue to be reduced, eventually affecting all lower basin states and Mexico. In February 2022 the U.S. Bureau of Reclamation projected that the reservoir level could likely drop by another 30 feet or so over the next two years, reaching new shortage tiers and triggering more cuts to lower basin states. Tribes play a critical role in all of this: As Colorado River water supply diminishes, and as more tribes settle their water rights, those tribal water rights could comprise a larger percentage of available senior Colorado River water resources. Take the Colorado River Indian Tribes, consisting of four tribes, the Mohave, Chemehuevi, Hopi and Navajo, with a reservation along the Colorado River at the border between Arizona and California. These tribes hold rights to more than 700,000 acre-feet of mainstem Colorado River water, with more than 660,000 acre-feet of that water in Arizona. These are the most senior water rights in the lower basin, making them the most secure in times of shortage. Starting in 2016, the Colorado River Indian

1936

Southern Ute Tribal Council is established.

1937

Order of Restoration returns “undisposed of ceded Ute Indian lands” to the tribes—more than 222,000 acres are restored to the Southern Utes and 30,000 acres to the Ute Mountain Utes.

1940

Ute Mountain Ute Tribal Council is established.

1952

McCarran Amendment passes in U.S. Congress, authorizing state courts to adjudicate tribal reserved water rights.

1963

Arizona v. California establishes a standard for decreeing and quantifying reserved tribal water rights by assessing practicably irrigable acres on a reservation and reserving water to irrigate that land; also decrees water rights to five lower basin tribes and divides the waters of the lower basin among lower basin states.

1986

Colorado Ute Indian Water Rights Settlement authorizes the U.S. Interior Secretary to supply water to the Ute Mountain Ute Tribe and Southern Ute Tribe from the Animas-La Plata and Dolores projects in Colorado; the settlement is authorized by U.S. Congress in 1988.

1992

Ten Tribes Partnership forms to increase the influence of tribes in Colorado River management and provide support for the protection and use of tribal water resources.

2000

Colorado Ute Settlement Act Amendments allow for the construction of a scaled-back Animas-La Plata Project; Lake Nighthorse will still be built to store project water, but the infrastructure to deliver it to the reservations won’t be.

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Tribes entered a short-term pilot project with Reclamation, in which they were compensated for fallowing more than 1,500 acres of farmland so that water could be left in Lake Mead. Those pilot project numbers were upped in 2018. The following year, in 2019, the tribes worked with the State of Arizona on a much larger agreement, as part of the Drought Contingency Plan, committing to fallow farmland and forego water deliveries to the tune of 150,000 acre-feet over three years to help maintain levels in Lake Mead. In exchange for this contribution of water, the tribes are paid $38 million. Now, the tribes are looking to be able to lease their water— something that wasn’t authorized in the Arizona v. California opinion that established their water rights. A bill introduced to the U.S. Senate in December 2021 could allow the tribes to lease part of their water allocation to individuals, businesses, municipalities, governments and others for off-reservation uses to provide additional drought relief and protect natural habitats in Arizona. A January 2022 agreement on the Colorado River in New Mexico does just that. The Jicarilla Apache Nation, New Mexico Interstate Stream Commission and The Nature Conservancy announced a new deal to lease up to 20,000 acre-feet of water per year from the Jicarilla Apache Nation to the stream commission to support threatened, endangered and vulnerable fish and to increase water security for New Mexico.

At this Ten Tribes Partnership Meeting in 2018, Southern Ute Indian Tribal Councilwoman Lorelei Cloud approved publication of the Tribal Water Study.

Talks are preliminary and confidential, and the tribes’ settlement legislation is somewhat narrow, Ortego says, specifying that the tribes water can be leased but must be used for municipal or industrial needs within Colorado. Because Lake Nighthorse is in the southwest corner of the state, so close to the border with New Mexico, that doesn’t leave room for a lot of Colorado users to step in and lease water. However, some nearby communities are running short on water and could benefit from the supplies stored in Lake Nighthorse, if an agreement is reached.

“Why wouldn’t you include 30 tribal sovereigns who have been here for millennia?” —Daryl Vigil | Jicarilla Apache Nation & Water and Tribes Initiative

The tribal nation subcontracts some of its other water to users outside the reservation, providing a valuable source of income. The Colorado Ute tribes and the State of Colorado are wondering whether a similar agreement or lease deal could put their unused Animas-La Plata Project water to work, says Peter Ortego, general counsel for the Ute Mountain Ute Tribe. (Ortego also serves on the Water Education Colorado Board of Trustees.) “The tribes have been eager to see solutions to these problems and the state has been helpful in working with us to find a consumptive use for that water,” says Ortego.

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“I think we’re starting to understand now that if we can all work together to utilize that water, it will be best for the entire region,” Ortego says. “The ultimate goal is to basically keep water in Colorado to help Colorado meet its other obligations.” More of this water sharing and leasing work could be coming. “We are very open to more discussions with tribes about what additional opportunities may exist,” says Trujillo, who has met with tribes on their ability to contribute water and receive compensation. “I think there is a lot of interest from several different angles to try to do more of that.”

TRIBES UNIFYING IN NEGOTIATIONS

hen he became water administrator for the Jicarilla Apache Nation, Vigil began to see how excluded tribal nations were from river management decisions. No tribes were invited to provide input to the 2007 Interim Guidelines, which dictate reservoir operations in the event of water shortages. The guidelines were negotiated by representatives from each basin state, federal agencies, and with Mexico through the International Boundary and Water Commission—tribal water use was the responsibility of the state that the tribe resided in, so the tribes were treated as stakeholders within the states, not as sovereigns themselves. In 2012, when Reclamation completed the basin-wide Colorado River Basin Water Supply and Demand Study, tribes called attention to the fact that there was no meaningful inquiry into tribal water. It was only after pressure on Reclamation that the agency funded the Colorado River Basin Ten Tribes Partnership Tribal Water Study, which, in 2018 assessed water supplies for a coalition of 10 tribal nations in the upper and lower basins that had previously come together in 1992 to push for more tribal voices in basin water management. The study was not comprehensive of all basin tribes but gave a stronger sense of tribal water supplies. In developing the 2019 DCP, which outlined water-saving plans between the seven U.S. basin states and Mexico,

Courtesy Southern Ute Indian Tribe

Reclamation consulted with only a few lower basin tribes. This neglect from state and federal agencies prompted the creation of the Water and Tribes Initiative in 2017. Aiming to support tribes and give them a stronger voice in water management discussions in the region, various leaders formed the initiative, including tribal representatives, policy experts, researchers, conservation groups, state and federal officials and others, co-convened by Vigil and Matt McKinney, co-chair of the University of Montana’s Natural Resources Conflict Resolution Program. “Why wouldn’t you include 30 [tribal] sovereigns who own 25% of the volume of the Colorado River?” says Vigil. “Why wouldn’t you include 30 tribal sovereigns who have been here for millennia?” As water managers begin to plan, negotiate and draft the next river management framework that will be implemented as the Interim Guidelines and DCP expire in 2026, many tribes are actively trying to gain a seat at the negotiating table. Twenty of the basin tribes have formed an ad hoc group for all 30 of the tribes in the basin called the Colorado River Basin Tribal Coalition. As the most substantive negotiations in developing the next river management framework are likely to unfold over the next two years, the coalition is calling to work together with federal agencies and states as soon as possible. While the next set of guidelines will not affect the status of settled tribal water entitlements, many tribes are concerned that they could affect unresolved water claims, which could still take decades to settle, and their ability to plan for their future. Rebecca Mitchell, director of the CWCB, has been meeting with the Ute Mountain Ute and Southern Ute Indian Tribes to develop a sovereign-to-sovereign framework, a process for tribes and the State of Colorado to engage on equal ground throughout water management negotiations. “The scope of the interim guidelines will be limited to operations of the major reservoirs, so it is important to recognize that we cannot resolve all of the issues in the basin throughout that negotiation process,” Mitchell wrote in a statement via email. “Still, it will be imperative to include tribal nations in the process.” That relationship between the Colorado Ute tribes and state has been great, says Rall

with the Southern Ute Indian Tribe. “[Mitchell] is trying to lead the way for other states to do the same, hoping that other states will enter into sovereign-to-sovereign agreements with their tribes to have a seat at the table.” For Leland Begay with the Ute Mountain Ute Tribe, early involvement in Reclamation’s next framework for managing water shortage is going to be critical for tribes to determine their future—to participate in decisions they were excluded from in years past. “In the past, there’s been a lot of shortcomings on behalf of the Bureau of Reclamation in engaging with tribes at an early stage,” says Begay. “This is an opportunity for Reclamation to meaningfully engage with tribes on how the interim guidelines impact tribes and their water rights and their land.” It’s difficult not to view the Colorado River Compact in a global colonial context. When the compact was signed in 1922, European colonial powers were still carving up African territories, exploiting resources like copper or rubber. The U.S. empire carved up the Colorado River, splitting it among seven states, dispossessing tribes from their natural relationship with the river, with no plan to deliver them water. While the historical Law of the River can’t be removed from this context, its next era could be one where federal, state and local agencies work collaboratively with tribal nations. Vigil has a gentle, impassioned cadence when he speaks. The river, he says, has given him a calling, a voice. Tribal nations in the basin are in a much better position today to advocate for their water interests, but it took years—a whole century really—to reach this point. It’s left him wondering: Where are we headed if we don’t start to build a collaborative framework that includes tribes? While he talked, Vigil would occasionally chuckle or laugh in disbelief, especially about the history of tribal water rights. “I think [the laughter] is a, you know, it’s a Native thing. It’s like a way to deal with the absurdity and like the massive amount of grief that comes with having to acknowledge this and where we’re at. Like every single time.” H Kalen Goodluck is a Diné, Mandan, Hidatsa and Tsimshian journalist and photographer based in Albuquerque, N.M. His work has appeared in High Country News, The New York Times, Popular Science, National Geographic—Travel, NBC News and more.

2007

Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead outline a method for determining annual releases from lakes Powell and Mead on the Colorado River, balancing water storage and the risk of shortage based on reservoir elevation.

2009

Lake Nighthorse begins filling with water supplied from the Animas-La Plata Project.

2012

Colorado River Basin Water Supply and Demand Study assesses imbalances in water supply and demand in the Colorado River Basin, with limited characterization of tribal water.

2017

Water and Tribes Initiative launches to strengthen Colorado River Basin tribes’ ability to manage water and voice in water management discussions.

2018

Colorado River Basin Ten Tribes Partnership Tribal Water Study documents how member tribes use their water, projects future water development, and describes the potential effects of that development on others in the basin.

2019

Colorado River Basin Drought Contingency Plans (DCPs) aim to reduce risks from ongoing drought in the upper and lower basins; the DCPs are layered on top of the Interim Guidelines. Certain tribes are party to the Lower Basin DCP.

2021

Colorado River Basin Tribal Coalition launches for leaders from the 30 tribes in the basin to share information and advance a whole-basin approach to Colorado River system management.

2026

Interim Guidelines and DCPs expire

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Thank You!

Water Education Colorado members form the bedrock of financial support that makes our work possible! The WEco community is connected by a deep appreciation for water and a love for our state. Together we’re committed to advancing water education for Colorado community members, decision makers, and industry professionals alike. We’d like to recognize our members (as of March 31, 2022) at the Stream level and above. Look for a full listing of financial supporters, including our valuable $60 members and other contributors online at wateredco.org/funders. HEADWATERS ($5000+) LEVEL

Chevron Corporation CoBank Colorado Water Resources and Power Development Authority Nick Ryan South Metro Water Supply Authority Varra Companies, Inc. BASIN ($2400+) LEVEL

Aurora Water Central Colorado Water Conservancy District City of Greeley Water and Sewer Colorado Golf Coalition Colorado River District Colorado Springs Utilities Denver Water Molson Coors Northern Water Pueblo Water Rio Grande Water Conservation District Southwestern Water Conservation District Uncompahgre Valley Water Users Association Ute Water Conservancy District AQUIFER ($1200+) LEVEL

Basalt Water Conservancy District City of Grand Junction City of Thornton Colorado Water Center LRE Water Meridian Metropolitan District Northern Water Municipal Subdistrict Parker Water and Sanitation District Roxborough Water and Sanitation District SGM SPWRAP Town of Monument Tri-State Generation and Transmission Association Upper Yampa Water Conservancy District RIVER ($600+) LEVEL

Carlson Hammond and Paddock City of Boulder Colorado Corn Administrative Committee HDR Lower Arkansas Valley Water Conservancy District John Maus Mt. Werner Water Pinery Water and Wastewater District Republican River Water Conservation District Rocky Mountain Agribusiness Association Roggen Farmers' Elevator Association Summit County SWCA Environmental Consultants The Consolidated Mutual Water Company Upper Gunnison River Water Conservancy District Vranesh and Raisch

34 • W A T E R E D U C A T I O N C O L O R A D O

TRIBUTARY ($300+) LEVEL

STREAM ($120+) LEVEL

Alpine Bank Applegate Group BBA Water Consultants Richard Bratton Anne Castle CDM Smith City of Westminster Collins Cockrel & Cole Colorado Livestock Association Colorado Municipal League Colorado Parks & Wildlife Conejos Water Conservancy District Cottonwood Water and Sanitation District Delta County Dominion Water & Sanitation District Donala Water & Sanitation District Douglas County Evans Group, LLC Fairfield and Woods, PC Paul Fanning Forsgren Associates Inc. Les Gelvin Thomas Gougeon Harris Water Engineering, Inc. High Country Hydrology, Inc. Kogovsek and Associates, Inc. Lower South Platte Water Conservancy District Martin and Wood Water Consultants Middle Park Water Conservancy District Morgan County Quality Water District North Poudre Irrigation Company North Sterling Irrigation District Platte Canyon Water and Sanitation District Platte River Power Authority Pueblo West Metropolitan District Renew Strategies, LLC River Network San Juan Water Conservancy District San Luis Valley Water Conservancy District Bo Shaffer Southeastern Colorado Water Conservancy District Special District Association of Colorado St. Vrain and Left Hand Water Conservancy District John Stulp The Water Information Program Edward Tolen Town of Castle Rock Town of Frederick Daniel Tyler Upper Arkansas Water Conservancy District WaterDM Weld County Farm Bureau Western Resource Advocates White Sands Water Engineers, Inc. Wright Water Engineers

Arkansas River Basin Water Forum David Bailey Douglas Blaisdell Gary Boldt Mark Bush Jim Butler Joan Card Bill Coleman John Covert Joelle Dozoretz George Farnsworth Jay Gallagher Pam Gardiner and Lyle Geurts Russell George Dala Giffin Marshall Gordon Roy Heald Matt Heimerich Gregg Hendry David LaFrance Paul Lander Katie Leone Steve Malers John McClow Bill McCormick Julie McKenna Erin Minks Elizabeth Minyard William Parzybok Bob Peters David Pusey Robert Rich Kate Ryan Alli Schuch Mike Shimmin D Randall Spydell Karlene Thomas Rich Tocher Jean Townsend Bill Trampe Chris Treese Ryan Unterreiner Eric Wilkinson Jody Williams Gerald Wischmeyer Dick Wolfe Kenneth Wright Ruth Wright

MEMBER’S CORNER A C O M M U N I T Y O F P E O P L E W H O C A R E A B O U T WAT E R

IN THE SPOTLIGHT

Our Members Look Back to Move Ahead

his issue we’re featuring Patty Rettig, head archivist for the Colorado State University Water Resources Archive and a valuable individual member of WEco since 2013. The Water Resources Archive serves everyone from undergraduate students to water lawyers to scientists seeking historical information. It holds 130 collections containing more than 3 million documents dating to the 1860s. “It’s important because we need to know what happened before us, how we got here,” says Patty, who has been involved with the archive since its 2001 launch. Patty oversees donor relations, works on collections, supervises student staff, and helps researchers find what they are looking for. Patty became a WEco member “because of the mission. And I liked reading the publications.” She has since attended WEco tours, where she appreciates the on-site learning and meeting people from around the state. WEco helps keep her informed, and she is able to refer others seeking information. “Having people be educated about water

Patty toured the Pont du Gard in France with international water historians in 2013.

is critically important, and WEco does such great work at that.” This year Patty has been instrumental in the Water ’22 campaign that WEco is spearheading, as a member of its Steering Committee. “I’ve enjoyed overall participation, but especially furthering the book club aspect of the campaign to get people reading and learning about Colorado water issues.” Patty, your commitment to keeping Coloradans connected, past, present and future, is an inspiration!

MISSION: IMPACT Water Education Colorado is the leading organization for informing and engaging Coloradans on water. Through leadership training, educational resources, and programming, we are working toward a vibrant, sustainable and water-aware Colorado.

94%

of respondents to WEco's 2021 Annual Supporter Survey rated our content "Very" or "Extremely trustworthy."

ENGAGE

VOLUNTEER

GIVE

Dive in to our diverse programming. Find more information on our website. A few ideas to pique your interest:

We rely on our volunteers! Email us at info@wateredco.org to express your interest:

Your gift advances an engaged Colorado, leading to informed decisions and sustainable solutions. Three ways to give:

you an educator or outreach your expertise and we’ll plug you 1 Are 1 Share professional? Become an affiliate of the in—as a blog contributor, a speaker, or Water Educator Network for trainings, networking and collaborations.

Follow us on social media to stay current on the latest WEco and Water '22 campaign events. Post a photo or video on social media of yourself practicing any of the 22 Ways to Care for Colorado Water in 2022, using the hashtag #water22 and tagging Water Education Colorado, for a chance to win fun prizes!

a peer reviewer for publications.

a contact list to provide local 2 Join support when we bring one of our programs to your area.

for the Water ‘22 campaign 3 Volunteer to help spread water awareness across Colorado in 2022. Email water22@ wateredco.org to sign up.

to WEco's mission and 1 Contribute programs at any time of year by donating online at watereducationcolorado.org/ get-involved/donate.

an upcoming program 2 Sponsor or event to showcase your organization's support for water education—contact jayla@wateredco.org.

now accepts charitable gifts of 3 WEco appreciated stock—you get double the tax benefit! Contact jennie@wateredco.org.

Not a member yet? Join the WEco community at watereducationcolorado.org. H E A DWAT E R S S P R I N G 2 0 2 2

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WATEREDUCATIONCOLOR ADO.ORG Publication of Water Education Colorado's Headwaters magazine is made possible by the generous support of sponsors and advertisers. We would like to extend our appreciation and thanks to these sponsors for contributing financially to this issue.

I N N O V AT I V E Potable Water Reuse - Prairie Waters Continued Farming Program - Rocky Ford Award Winning Conservation Program

AWARD WINNING U.S. Water Prize U.S. Water Alliance Partnership for Safe Water Excellence in Water Treatment AMWA Platinum Award Exceptional Utility Performance NACWA Excellence in Management Platinum Award Ranked #1 in Customer Satisfaction with Midsize Water Utilities in the West of the J.D. Power 2021 Water Utility Residential Customer Satisfaction Study. * jdpower.com/awards

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