By: Maryam Salazar
Seven states are fighting over water in the Colorado River Basin. The basin is split into the upper and lower basins. The states of the upper basin include Colorado, Utah, New Mexico, and Wyoming. The lower basin includes California, Nevada, and Arizona. In addition to these states, dozens of Tribes and Mexico also have a seat at the table. Each state, Tribe, and Nation has unique stakes to consider.
The water issue became critical over the past several decades of inactivity, non-agreement, and overuse. The river’s two main reservoirs are at all-time lows which have led to the risk of “dead pool .” Dead pool occurs when a reservoir reaches such a shortage that a dam can no longer release water downstream. The current shortage is due to the snowpacks and rainfall not producing enough water to flow downstream to Lake Powell and Lake Mead.
For the first time ever, the Colorado River water shortage has been declared a Tier 1 water shortage, which effectively reduces the amount of water that Arizona, Nevada, and Mexico can claim from the river. With the critically low state of the reservoir storage, the federal government has instructed the seven states to make plans to cut their 2023 water consumption in totality of up to one-third of the river’s normal annual flow.
This is a staggering feat to accomplish, and many stakeholders feel they are being asked to compromise more than their counterparts. The states in the upper basin (Colorado, Utah, New Mexico, and Wyoming) notably use less than their allotted share of water, while the states in the lower basin (California, Nevada, and Arizona) regularly use their full allotment or more. The states that are using less do not feel it is fair to face cuts when the other states regularly overuse their allotments. These states must come to an agreement so that the reservoirs never hit dead pool, but they are not the only stakeholders in these water negotiations. In addition to the states, there are thirty federally recognized tribes in the Colorado River Basin.
Climate change has hit this region particularly hard, which will adversely affect the more than 40 million people that rely on the river for drinking water, hydroelectric power for more than 7 million citizens, and water for the 30 Native American Tribes. Farmers in the region have already taken major cuts as they have relied on the river to irrigate over 5 million acres of fields that supply food to the entire world. However, the state of the water shortage has not been unexpected, as the Colorado River’s water flow has steadily declined since 2000. The flow has slowed, but the demand has not accommodated this decline.
If stakeholders do not settle on a significant water conservation plan, millions of water users are at risk of a water and hydroelectric power shortage. Decades of negotiations and litigation has stalled moving forward with a solid plan of action because each stakeholder has their own interests they want to protect. This brings a major issue to the spotlight: there are multiple stakeholders participating in this negotiation, some more powerful and resourceful than others, which makes it almost impossible to come to an agreement.
This is a perfect example of Shapiro’s [Nation] Exercise, where participants are placed in a scenario as stakeholders, with different interests, different backgrounds, and different motives, and they must come to a common solution to solve the issue presented. In his research, Shapiro has seen leaders fail to compromise their interests in the sake of the greater goal. Each water right holder is holding their own interests over those of the others and adding in threats of litigation which results in a room full of negotiations going stale.
Taking a closer look at the polarities of interests at stake, consider the Tribes that have not fully resolved their water rights. Of the thirty Tribes that depend on the Colorado River, only twenty-two Tribes have recognized rights to the Colorado River. This distinction is significant when identifying what is on the line for each Tribal stakeholder.
Though current water negotiations are stalling, many Tribes have powerful water rights in the West. The Winters Doctrine established the practicably irrigable acreage standard to quantify reserved rights held by five tribes with reservations along the lower Colorado River in Arizona, California, and Nevada. As a result, most of these Tribes have powerful water rights in a prior appropriation water right scheme. Their rights extend back to the date of reservation establishment, which often pre-dates the foundation of statehood in the Southwest. These rights maintain even without usage, making these Tribes major players in water negotiations.
Some tribes have already become involved in water compacts to lease their water rights to other water users. Gila River Indian Community (GRIC) is a major player in these water negotiations. GRIC was allotted nearly one fourth of the Colorado River water through the Central Arizona Project (CAP). However, GRIC has recently withdrawn from current negotiations. The Tribe has been deterred by the lack of progress among the negotiating states and has decided to store their water instead of contributing it to the conservation programs for Lake Mead. GRIC is able to walk away from the table because they are protected by their established water rights.
Other Tribes with recognized rights also aim to enter in these water negotiations. The Colorado River Indian Tribes, whose reservation borders Arizona and California, currently lacks the legal authority to lease its water. CRIT is currently seeking congressional approval to lease their water rights. CRIT has one of the largest and most secure water right in Arizona and are willing to free up a large volume of water.
However, there are multiple Tribes without recognized rights that face different issues with water access. The practicably irrigable acreage standard hasn’t served every tribe on the Colorado River Basin. If a Tribe’s reservation land isn’t highly irrigable, then they might not have been allocated enough water. One such Tribe is the Hualapai Tribe. The Colorado River flows through 100 miles of the Hualapai reservation in the Grand Canyon. Though they have direct access to the river, the Tribe does not have fully resolved water rights and instead, the Hualapai Tribe depends entirely on hauling water.
Tribes in this situation want the federal government to ensure their interests are protected. The Hualapai Tribe is awaiting a water settlement pending in Congress which would give the Tribe the right to draw river water and funding to pipe water to their tribal communities and economic developments. However, these Tribes are taking a risk of being allotted a lower priority water right irrespective to the fact they have been on the land since time immemorial. At this time, the Department of the Interior has not commented on the impact of the drought on Tribal water rights, which has some concerned.
With so many differing motives, interests, and priorities intersecting, will these negotiations end like one of Shapiro’s typical results from his [Nation] exercises? Will water leaders be able to come up with a solution by each making compromises or will they instead ignore that they have the power to come to a decision that will save millions of water users that depend on the Colorado River Basin? The increasing sentiment seems to be that each stakeholder would collectively be willing to settle if there was more reciprocation amongst the stakeholders collectively. California has taken an unexpected first step to cut their water usage and CRIT is willing to free up a large volume of water. Experts opine that this is not enough, but it is a start. It waits to be seen which other stakeholders will follow suit.
Maryam has a Bachelor’s in Social Work from Northern Arizona University and a Master’s in Social Work from the University of Southern California. She is a 2L at Sandra Day O’Connor College of Law and in the Indian Legal Program. Maryam is interested in water law and the intersection with Tribal Nations’ self-sufficiency of the rivers and waterways on their reservations. Her personal interests include playing volleyball, painting, and finding new hiking spots with her two daughters.