In Arizona, the Colorado River Drought Contingency Plan now hinges on the approval of tribal nations. The plan is meant to levy water cuts to seven Western states, preventing the river and its reservoirs from reaching critical levels — but after a state lawmaker introduced legislation that undermines parts of the Gila River Indian Community’s water settlement, the tribe has threatened to exit the plan. Without tribal buy-in, Arizona’s implementation design will collapse, threatening the Basin-wide agreement. If the latter isn’t signed by Jan. 31, federal officials will scrap it and draw their own.
The Drought Contingency Plan’s fragile consensus between thirsty stakeholders highlights how tribal water rights, some of the most powerful in the West, can make or break deals in the arid region — where drought is a reality rather than an aberration.
Along with the Colorado River Indian Tribes, the Gila River Indian Community is contributing mammoth quantities of water for the plan, especially to sate vocal farmers in the Safford Valley with low-priority water rights. Gila River reached a deal with the state in December that, in total, gives up or sells approximately 640,000 acre-feet of water and brings them $90 million from the state and federal governments, according to their attorney Don Pongrace. With that water to conserve and distribute, Arizona will be able to handle the Drought Contingency Plan’s cuts.
The Gila River Indian Community is a water titan in the state. In 2004, after nearly a century of litigation, they reached their historic settlement through the Arizona Water Settlements Act, which delivers them over 650,000 acre-feet of water per year. They’ve created partnerships with cities like Phoenix to distribute resources, actions that have been called “the prototype of positive steps.”
The recent bill that aggravated Gila River leadership ignores many aspects of their settlement. House Speaker Rusty Bowers, an advocate for Pinal County agriculture during Drought Contingency Plan negotiations, hastily proposed it, trying to repeal a statute often called “use it or lose it”: If someone sits on water for more than five years without using it, they forfeit it to the state to reallocate elsewhere. “Use it or lose it” laws, common in Western states, were upheld in Arizona by the 9th Circuit Court of Appeals last year after litigation from Gila River — the tribe wanted to prevent Safford Valley farmers from stockpiling water, which they say allowed them more resources than their annual allocations. By repealing forfeiture laws, water is more easily hoarded, and tribally-led litigation in high courts erased.
Kathleen Ferris, a Senior Fellow for the Kyl Institute of Water Policy at Arizona State University, doesn’t think Bowers’ bill is good policy in a drought. And not consulting the tribe, she said, is like “a slap in the face.”
Gila River’s governor, Stephen Roe Lewis, wrote to state water managers about the bill. “After all our hard work together, I am sorry that we are being put in this position, but this bill, introduced without warning and without discussion with (Gila River), represents a clear threat to our water settlement rights,” he wrote. Bowers did not respond to requests for comment from High Country News, and, in a statement, the Central Arizona Project reiterated their commitment to passing Arizona’s implementation plan.
In theory, tribal water rights are some of the most dominant in the West. The Supreme Court determined in 1908 that when the United States created Indian reservations, they implied the existence of enough water for tribal members and irrigated farmland. But, unlike the Gila River Indian Community, many tribes’ rights aren’t quantified, making it easy for non-Native users to drink, bathe and farm with tribal water.
The Tribal Water Study, released in December by the Bureau of Reclamation and the Ten Tribes Partnership, aimed to gather data about how tribal water rights are used in the Colorado River Basin. It found that many water claims for Basin tribes, totaling millions of acre-feet, are unresolved, preventing the resource from reaching its rightful consumers. Settling those rights would manifest a long-held legal right that could also help rehabilitate tribal communities. “Water is only one factor in this economic disparity,” the study reads, “but when thousands of residents on tribal lands lack access to clean water and adequate sanitation, the path out of poverty is more difficult.”
T. Daryl Vigil, the water administrator for the Jicarilla Apache Nation and spokesperson for the Ten Tribes Partnership, described the high stakes of tribal water involvement. “If we’re going to be sovereigns, or act like them, then we really do have the opportunity to create what our future looks like,” he said. “The study was part of that process: Who are we going to be in the process of saving, or bringing back to life and creating balance, in the Colorado River?”
As the West’s struggle with drought deepens, tribes stand to act as influential parties in drought negotiations — or exit them, as the Gila River Indian Community has threatened, to protect what is theirs.
As Arizona stares down the Drought Contingency Plan deadline, the potential absence of the Gila River Indian Community’s contribution is a glaring empty space. Despite Lewis’s warning, Bowers told the Arizona Capitol Times that he won’t budge on his bill. “I’m not going to back down,” he said, while also acknowledging that it will “really mess it up” if the Community backs out. If it happens, he said, he’ll just have to find that water “somewhere else.”
“No, no,” Ferris said in response to the idea. “There isn’t water anywhere else.”
Originally posted on High Country News by Elena Saavedra Buckley on Jan. 28, 2019. High Country News publishes independent journalism for people who care about the West.