Trump directive creates chaos on the Colorado River
Daniel Herrera Carbajal
ICT
In March, Gila River took out 10,000 acre-feet of their allotted water from Lake Mead after the Trump administration’s Unleashing American Energy executive order froze money for any program related to the Inflation Reduction Act. The act, which Congress passed during the Biden Administration in 2022, allocated money for tribes and states in exchange for giving up some of their shares of Colorado River water.
The Trump administration later unfroze the Inflation Reduction Act funds that would be used for water conservation projects and to build canals. The act allocated around $4 billion to compensate tribes, states and other organizations to not take water out of the Colorado River to use to generate revenue like crops.
Gila River Governor Stephen Roe Lewis wrote a letter to the Interior Secretary Doug Burgum on Feb. 11 before removing Colorado River water from Lake Mead.
“We have given the department every opportunity to avoid what could be a calamitous break in our longstanding partnership, with terrible consequences for the entire basin,” he said.
If water levels continue dropping, hydroelectric dams on the Colorado River will not be able to generate electricity. But the compensation to not take water out of the river has been seen as a short-term solution by many experts, including Mark Squillace, a professor of law at the University of Colorado Boulder who specializes in natural resource law.
“My concern is that the Biden administration seemed to be focused on short-term buyouts of water consumption,” he said. “I just don’t think that kind of approach is sustainable. What we need on the Colorado River are permanent reductions in consumption, and so spending a lot of money to temporarily buy out the rights of people to use all of their water, right, is just not something that is going to solve the problem.”
Thirty tribes have rights to the Colorado River. The river is a resource, but for the Zuni Pueblo it is the source of life.
“For the Zuni people, the Colorado River is really important because the river and the Grand Canyon are our homeland. That’s where the Zunis emerged,” said Councilman of Zuni Pueblo Edward Wemytewa.
The Colorado River has important cultural significance to each tribe that has water rights to it, but the Colorado River compact that outlined how the river would be divided was not drafted in consultation with tribes.
“Laws were created by the US governments, by the US agencies, and during those times, the federal government, in the name of public interest, they started delineating territories. They start creating laws about water usage, water compacts,” said Wemytewa. “Well, in those earlier years, when the laws were being developed and implemented, the Zuni was not at the table. Many Native peoples weren’t at the table.
“Under federal law, those tribes have the right to take their water, usually in priority over everybody else, because the date of priority for Indian water rights is the date of their reservations, which is typically within the 19th century,” said Squillace. “So those water rights tended to date back before other non-Indian users.
“Those are legal rights that they are entitled to. And so one of the things I’ve suggested in my article is that maybe we should think about closing down the river to new appropriations. Why are we continuing to appropriate new water rights when we have this crisis and we have early water rights from Native American tribes that are currently legal but not being utilized for a number of different reasons?” he said.
The current compact being used was created in 1922, and it divided the river into two basins – upper and lower.
Each basin was allotted no more than 7.5 million acre-feet of water per year, equaling 15 million acre-feet of water each year. Mexico was also allocated 1.5 million acre-feet a year. The amount of water the river produces was vastly overestimated at the time of the compact’s creation.
“At the time that they negotiated the compact, it was thought that there was maybe 18 million acre feet of water on an annual basis in the river, which turned out not to be true,” said Squillace.
Currently, the Colorado River is producing about 12.5 million acre-feet a year. A vast over-allocation of water has led to states battling over water and how to use it.
Squillace proposed a new Colorado River compact. It proposes to update states’ water usage laws and to bring tribal nations into the conversation.
“I’ve suggested that maybe we could come up with a new compact, which would look very different from the current compact, but would basically be an agreement among the states to modernize their water laws,” he said. “Right now we have a number of principles in the various state water laws that I think allow for, I don’t want to call them wasteful, but at least inefficient uses. We could increase our efficiency in terms of the amount of water that we use if we sort of refined what we call beneficial use. There’s a principle in western water law that you only get as much water as can be beneficially used.”
For the Zuni Pueblo, a history of strong-handed negotiations and a lack of knowledge of a government system that is not their own led to signing deals that did not benefit them.
“When there were any land settlements or water settlements, tribes were never provided attorneys.Tribes were never given a heads up, They were never given funding to educate ourselves as Indigenous peoples,” Wemytewa said. “We are stewards of the water. We find the corn seed central. The corn seed is central. In fact, our abstract name is Children of Corn because we’re farmers, we’re agricultural people. What agricultural people would give up their water rights? What agricultural people would give up their watershed? We didn’t have much choice.”
Tribes have priority over everyone else when it comes to their water rights pertaining to the Colorado River, which means they must have a voice in the conversation.
“There are 30 Native American tribes with water rights along the Colorado River. And it may be impractical to basically have all 30 tribes represented during negotiations. We’ve got seven states, two countries, 30 tribes. That would be a very difficult kind of negotiation,” he said.
“But you could certainly have some representatives. The reason it’s tricky is that not all tribes agree on the best approach here. And so it’s important that we treat individual Native American tribes as people who can have their own views that might be different from other tribes. And so how do you ensure fair representation of all the tribal views without actually putting all those tribes at the table during negotiation?”
For Wemytewa, a new compact with tribes involved is necessary.
“Today, as a tribal leader, I submit comments to federal agencies, whether it’s the National Park Service or the Bureau of Land Management or (U.S. Geological Survey). We submit our comments trying to provide guidance to the federal agencies that you have to consider that you can’t continue to open up the lands. You cannot continue to give away water, because by doing so, you continue to remove Indigenous peoples from their aboriginal lands to make room for other people, other cultures.”
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