Tribes in the upper Colorado River basin are still struggling to get compensated for water to which they are entitled but aren鈥檛 using.
Tribes had hoped to be included in a new round of federal funding through the U.S. Bureau of Reclamation aimed at conservation programs in the Upper Basin and possibly get paid for their water that they aren鈥檛 using. But it appears that will not be the case, Lorelei Cloud, vice chair of the Southern Ute Indian Tribe, said on Sept. 20.
鈥淩eclamation agreed to include tribal forbearance programs under the B2W program where we were looking forward to announcing and working on a proposal,鈥� Cloud said. 鈥淥n Sept. 18, the state of Colorado informed the Southern Ute Indian Tribe that Reclamation has reconsidered its position and will no longer include tribal programs in the B2W program. This decision needs to be reversed.鈥�
The comments came during a panel discussion at the Colorado River Water Conservation District鈥檚 annual seminar in Grand Junction. Cloud put out a call to action for attendees to help them plead their case to federal officials. She noted that the title of the panel was 鈥淒oes History Repeat Itself?鈥�
鈥淲e haven鈥檛 changed anything,鈥� she said. 鈥淣o matter how tribes are trying, we haven鈥檛 changed anything.鈥�
Becky Mitchell, Colorado鈥檚 representative to the Upper Colorado River Commission and the state鈥檚 lead negotiator on Colorado River issues, has advocated for more tribal inclusion. She said Colorado officials were notified by phone that Reclamation would not fund forbearance with B2W money.
鈥淏oth the tribes and the states thought that this was an option for the use of that funding,鈥� Mitchell said. 鈥淭here are commitments that have been made, not just in this last year, but in the last 200 years, and it鈥檚 time to make good. 鈥� We鈥檙e going to continue to work with the tribes to pursue federal funding in an effort to correct these historic injustices.鈥�
Forbearance
Forbearance is the term for paying water-rights holders for water they aren鈥檛 using. It鈥檚 a concept that has been talked about more in recent years as drought and climate change have shrunk river flows. Last year鈥檚 state Drought Task Force had a sub-task force on tribal matters that recommended that the legislature fund a study to assess a pilot program that would compensate tribes to not develop their water.
Forbearance underscores the tension between the basin鈥檚 need to live with less water and the tribes鈥� need to benefit from their water rights. A main way that water managers have incentivized less water use is through conservation programs that pay irrigators to temporarily dry up their fields. But since some tribes are not yet using their water, that strategy cuts them out of these traditional conservation programs. Paying tribes not to develop their water for a certain number of years means they could still reap some monetary benefit while not adding to the crisis by taking more water out of the river.
Water managers have pointed out that this tribal water has been propping up the Colorado River system for decades. The 30 tribes of the Colorado River basin have rights to use about 25% of the water, and these rights are senior to those of nearly all other water users in the basin. But some tribes, including Southern Ute, haven鈥檛 been able to put their water to use. The tribe has about 38,000 acre-feet of stored water for municipal and industrial use in Lake Nighthorse, part of Reclamation鈥檚 Animas-La Plata project. Because of a lack of infrastructure and of high operation and maintenance costs, Southern Ute has not been able to access it.
Jay Weiner, an attorney representing the Quechan Indian Tribe of the Fort Yuma Indian Reservation, said forbearance is a critical mechanism in creating sustainable Colorado River management.
鈥淚t is difficult to see how we will have any sort of durable and sustainable management framework going forward that does not include the tribes鈥� water rights and the meaningful participation of tribes that hold those water rights,鈥� he said. 鈥淚f that doesn鈥檛 happen, the system will not be stable because tribes will continue to find ways to exercise and develop their water rights.鈥�
Righting wrongs
Stabilizing the system is just one reason to consider forbearance. Paying tribes for their unused water would also begin to right centuries of historical wrongs. Tribes have been largely excluded from the policy talks and decision-making process among the seven Colorado River basin states and the federal government. Despite tribes pushing for structural inclusion, they still lack a formal seat at the table for the ongoing negotiations that will decide how the Colorado River鈥檚 largest reservoirs will be operated and how cuts will be shared after 2026.
鈥淚f the tribes are not able to develop [their water], somebody is benefiting from that,鈥� Mitchell said. 鈥淲e have to right those wrongs. If we do not, there are the incentives to keep going on the way that we鈥檝e been going. And I鈥檓 not OK with that.鈥�
The $450 million in Inflation Reduction Act money that has been allocated for the Upper Basin is broken into two phases. 鈥淏ucket 1鈥� funded the System Conservation Pilot Program, administered by the Upper Colorado River Commission, which pays eligible water users in the Upper Basin states (Colorado, Utah, Wyoming and New Mexico) to leave their fields dry for an irrigation season and let that water flow downstream. 鈥淏ucket 2鈥� is organized into two components: Environmental Drought Mitigation (aka B2E) and Water Conservation (aka B2W), both of which are run through the Bureau of Reclamation. Officials say they hope to release the full details of B2W funding this fall, but according to the bureau鈥檚 website, the program will fund projects that achieve verifiable, multiyear reductions in use of, or demand for, water supplies.
Since water conservation in the Colorado River basin has largely meant paying agricultural water users to cut back, paying tribes who already aren鈥檛 using their water to continue to not use it won鈥檛 result in an immediate, measurable amount of conserved water. However, incentivizing tribes from using or developing all the water they have a right to could reduce future demand.
鈥淸Reclamation] leadership provided what we all understood to be a determination of eligibility of Bucket 2W funds for tribal forbearance,鈥� Mitchell said in an email to Aspen Journalism. 鈥淭his was based in part on the fact that such projects would result in a reduction of demands on the system through 2031, which is contemplated in the Inflation Reduction Act.鈥�
At the River District seminar last month, Cloud said, "We had something on the table until [Sept. 18], and that changed."
Reclamation did not directly answer a question sent via email about whether the bureau had indicated to state and tribal officials that B2W funding could support tribal forbearance programs. But an agency official provided a written statement highlighting B2W鈥檚 eligibility requirements.
鈥淭he Upper Basin Bucket B2W program, like the Lower Basin B2W program, relies on statutory language in the Inflation Reduction Act that requires new, verifiable contributions to the system water,鈥� a Reclamation official said in a prepared statement. 鈥淭ribal and nontribal projects that meet this objective will be eligible, just as they were in the companion Lower Basin program, where [on Sept. 26] we announced our first B2W project with the Gila River Indian Community.鈥�
That agreement pays the tribe for traditional water conservation projects where water is already being used like irrigation infrastructure efficiency upgrades and lining canals.
The Upper Basin states, through the Upper Colorado River Commission, have committed to more tribal involvement in Colorado River policy-making.
Earlier this year, the UCRC signed a memorandum of understanding with the Upper Basin鈥檚 six tribes (the Jicarilla Apache Nation, the Navajo Nation, the Southern Ute Indian Tribe, the Ute Indian Tribe, the Ute Mountain Ute Tribe and the Paiute Indian Tribe of Utah) pledging to continue meeting to discuss potential collaborative action. Representatives from the tribes, however, still do not have voting seats on the UCRC.
On Sept. 5, the Upper Basin tribes sent a letter to U.S. Bureau of Reclamation Commissioner Camille Touton urging officials to consider programs that address common tribal problems 鈥� what they call the 鈥淔our U鈥檚鈥�: undeveloped, unquantified, unused and uncompensated water rights. The UCRC sent a letter to Reclamation on Sept. 23 agreeing with this sentiment, saying that the commission supports tribes deriving benefits from their unused or undeveloped water, including by participating in future IRA-funded programs.
A statement from a bureau said that Reclamation is 鈥渃ommitted to a dialogue and addressing unused and unsettled water. We continue to work with each tribe across the basin on what authorities and resources we can bring to resolution.鈥�
鈥淯nused, unquantified, undeveloped and uncompensated tribal water require a partnership with the United States as trustee, tribes, and a recognition of the important role of states in protecting water,鈥� a Reclamation official said in the prepared statement. 鈥淩eclamation is proposing a collective approach where the seven basin states and the federal government partner to support such issues across both basins. Each tribe is unique, and we will work to recognize a variety of paths for a solution.鈥�
Cloud encouraged everyone to reach out to their congressional representatives, to Interior Secretary Deb Haaland and to Touton to ask that tribal forbearance projects be included in future rounds of funding.
鈥淚鈥檓 not getting compensated, but everybody else that鈥檚 using my water is getting compensated,鈥� Cloud said. 鈥淚t鈥檚 a very unfair system. I鈥檓 tired of us always being the loser.鈥�
This story is provided by Aspen Journalism, a nonprofit, investigative news organization covering water, environment, social justice and more. Visit https://aspenjournalism.org.