In its report, the Colorado River Drought Task Force asks the state to study the benefits and logistics of forbearance agreements for the Southern Ute and Ute Mountain Ute tribes. The task force estimates such a study would cost $250,000.
In November, members of the Colorado River Drought Task Force met in Durango to talk about tribal water issues in the state. Lisa Yellow Eagle, an attorney for the Southern Ute tribe, ran down a list of recommendations and concerns at the meeting.
“Tribes have challenges developing their water. One of the largest challenges is funding. The tribes do have settled water rights; they have a quantified amount of water that they have the right to use. And yet… they're watching their water go downstream, and they're watching other water users use that water,” said Yellow Eagle.
On December 15th, the task force released its final report to the Colorado state legislature. The report is approximately 64 pages worth of strategies to address persistent drought conditions. Among those recommendations, the Southern Ute and Ute Mountain Ute tribes ask the state to conduct a study to determine whether the tribes should be compensated for water they are not using.
“We would like to request that the state of Colorado implement a pilot program to compensate the tribes in exchange for a forbearance of development of water for a certain number of years,” said Yellow Eagle at the November meeting.
Forbearance means compensating water rights holders for the water they aren’t using. At the meeting in November, task force members were supportive of the idea. However, they didn’t seem to know who would be paying the tribes for their water.
According to the Water and Tribes Initiative, a nonprofit tribal advocacy organization, tribal nations own 25% of the Colorado River Basin’s annual water supply. The initiative estimates that tribes in the Upper Basin allow half a million acre-feet to go unused annually. But almost none of those tribal water interests receive compensation from water users downstream. Forbearance agreements are few and far between.
In the Lower Colorado River Basin, the Quechan tribe, on the border of Arizona and California, struck a forbearance deal with the Metropolitan Water District of Southern California in the 2000s.
Jay Weiner is a water and natural resources attorney who represents the Quechan tribe. He says that since 2007, the Quechan tribe has made over $30 million by not using its full share of Colorado River water and selling some to California.
“That water flows to the Metropolitan Water District of Southern California, and the Metropolitan Water District compensates that Quechan tribe on acre-foot per acre-foot basis,” said Weiner.
Earlier this year, the Gila River Indian Community in southern Arizona established a three-year forbearance deal with the federal government worth $233 million.
Both the Quechan tribe and Gila River Indian Community are in the Lower Basin of the Colorado River – the area supplied by Lake Mead, including California, Arizona, and Nevada. In the Upper Basin, which includes Colorado, Utah, Wyoming, and New Mexico, experts say forbearance agreements have proven more elusive.
Rhett Larson is a professor of water law at Arizona State University. He says in the Lower Basin, there are big cities with lots of resources to spend on water. Additionally, with the federal government in charge of Lake Mead, there’s an entity that brokers deals and brings adversaries to the table.
“In the Lower Basin, the incentives are different,” said Larson. “Everyone's eyes are on what Lake Mead’s elevation is because as the elevation drops, lots of people face shortage declaration, they’ll get their water supply cut. There are lots of interested parties who are willing to pay, or lobby, or encourage, or negotiate to have anyone, tribes included, leave more water in the reservoir.”
"There isn't that same sort of focus in the Upper Basin where everyone is looking at one reservoir and how to maintain its elevation,” said Larson.
As drought conditions persist and more water users move to Colorado and Utah, Larson says tribal water rights will become a go-to solution for the region, meaning governments must pay tribes for their water.
“This isn't just a tribal concern,” said Larson. “This is a broader basin concern. The Lower Basin has always benefited from lots of people, tribal and non-tribal, in the Upper Basin not making use of their full water rights. The Lower Basin has always sort of enjoyed the fact that not everyone in the Upper Basin is making full use of their water which gave the Lower Basin some cushion. And the more the Upper Basin develops, the more they make full use of their water rights, the less of a cushion the Lower Basin has. There's this tension that exists not just with tribes but across the Basin.”
It could take decades for water power players to settle interstate disagreements over Colorado River water use. Those negotiations may affect whether or not two small tribes in Colorado will be paid for the water they leave in the river.
