BOULDER — In a warm, overstuffed auditorium at the University of Colorado on Thursday, tribal representatives from around the Colorado River Basin had a message for their federal and state counterparts: Tribes won’t be cut out of key water talks that will decide the future of the basin.
“As we develop a post-2026 plan, it’s no longer acceptable for the U.S. to meet with seven basin states separately, and then come to basin tribes, after the fact, with a post-hoc explanation or rationalization of what was discussed, or even worse, what was decided,” said Gov. Stephen Roe Lewis of the Gila River Indian Community in Arizona.
The Colorado River Basin provides water to 40 million people across the West, but the basin’s future has become increasingly uncertain in face of a now 23-year drought, overuse and unresolved debates over how to actually cut back water use. Now basin governments are turning their attention to 2026, when they will face a deadline to decide how to manage the basin’s precarious water situation for the long term.
Negotiations are set to ramp up this summer. Last week, big guns from six of the seven basin states and 13 of 30 tribes converged on Boulder at the 43rd annual Colorado Law Conference on Natural Resources to lay out their concerns, priorities and wish lists for the looming water cut negotiations.
“This (river) is the lifeblood of the American West,” said Becky Mitchell of the Colorado Water Conservation Board, the state’s top water agency. “I think it’s important to recognize that taking more than it gives will only hurt us in the end.”
In 2007, basin states and the federal government established a system of water cuts in response to a drought that started in the early 2000s. The cutbacks were based on the elevations of two enormous water storage reservoirs, Lake Mead and Lake Powell. When water levels changed, the federal government would adjust the amount of water sent down to Lower Basin states, Arizona, California and Nevada.
Those rules expire in 2026, which means it’s time for basin governments to figure out the next set of guidelines. This time around, the basin is 23 years into a drought, and climate scientists are saying the situation will become more dire.
At the top of Mitchell’s list of priorities for the upcoming negotiations: the new guidelines should acknowledge that climate change is real; the amount of water used should be tied to the amount of water available — not solely reservoir water levels; and water loss due to evaporation and leaky infrastructure needs to be accounted for basinwide. Water users need to cut back equitably and to treat the basin like a living river — not a glorified plumbing system.
“Water security for some doesn’t mean at the cost of others. All water users across the basin need to be secure and certain,” she said during a panel facilitated by KUNC’s Luke Runyon. “The way we do that is not trying to preserve the way that we are doing things now, but adapt and the guidelines need to say that.”
Other basin states — Arizona, California, Nevada, New Mexico and Utah — also weighed in with their top priorities during the event. Wyoming’s representative was unable to attend because of a last-minute scheduling conflict, the panelists said.
Ali Effati of the New Mexico Interstate Stream Commission also said evaporation losses need to be counted basinwide. Utah’s representative, Gene Shawcroft of the Colorado River Authority, said climate change can’t be handled on the back of the Upper Basin states alone. Utah, Colorado, New Mexico and Wyoming make up the Colorado River’s Upper Basin.
Projections for the river’s future supply vary widely, so the guidelines need to be flexible enough to handle whatever comes down the line, he said.
Nevada’s representative, Colby Pellegrino of the Southern Nevada Water Authority, called on officials to create more incentives — like a funding mechanism — to add to the existing “sticks” if they want to encourage meaningful reductions in water use.
“We’ve got to come up with some set of carrots that we don’t have today that allow our water users to adapt to the changes that we’re asking them,” she said.
From the Arizona Department of Water Resources, Tom Buschatzke said all water users need to share in protecting the water supply. Officials should look at long-standing tenets of water law, like the definition of beneficial consumptive use, a legal term that defines reasonable and appropriate use of Colorado River water.
“Is it what beneficial use meant historically? Can someone in Phoenix with Colorado River water water their lawn 24/7/365?” he said. “My view is no. But when I say that to my folks, that’s just one more set of darts that I pull out of my back every night.”
JB Hamby from the Colorado River Board of California said the Upper Basin must continue meeting its legal obligations for delivering water downstream to the Lower Basin. He also acknowledged that the Lower Basin is facing a water deficit of 1.5 million acre-feet each year — which has been a point of contention among basin states. He said that loss is due, in part, to evaporation and loss in the system of canals, ditches, tunnels and pipes that transfers the river’s water.
Mostly, he emphasized that basin governments have a short window of time to negotiate new guidelines.
“This is going to be a pretty expedited process,” he said. “Two years ago, here in Denver, we had a kickoff basin states meeting that was supposed to start this post-2026 process. We’ve not exactly continued that post-2026 process until basically two weeks from now … when it’s going to kick off.”
Will tribes join the negotiating table?
Across the Colorado River Basin, 30 tribal nations collectively have rights to 3.4 million acre-feet of Colorado River water, about 25% of the typical yearly flow. That’s the third-largest share of the river after Colorado and California’s annual allocations of 3.86 million acre-feet and 4.4 million acre-feet, respectively.
Just before state representatives discussed river issues, 13 tribal representatives from the Lower and Upper Basin laid out their goals for joining upcoming Colorado River negotiations during a panel focused on tribal issues.
Historically, tribal representatives have not been included in several key Colorado River Basin agreements, like in 1922, when the seven basin states divvied up the river in an agreement called the Colorado River Compact, or in the 2000s, when state and federal partners created a system for cutting water use in response to drought without the tribes.
In 1922, “we were nowhere around. They just did everything in the benefit of the non-Indian people. That’s how it’s always been. That’s the only way I’ve ever seen it,” said Christopher Tabbee, vice chairman of the Ute Indian Tribe located in Utah. “We’re an afterthought.”
One tool for tribal-federal negotiations is called tribal consultation, a formal, two-way, government-to-government dialogue between tribal officials and federal agencies to discuss federal projects before decisions are made, according to the U.S. Bureau of Indian Affairs.
“The Federal agency provides sufficient advance notice to appropriate Tribal leaders of upcoming consultation sessions and, following the consultation sessions, explains to those Tribal leaders how the final agency decision incorporates Tribal input,” the bureau’s website says.
That’s not always how it works. Shanandoah Anderson of the Shivwits Band of Paiutes, located in southwestern Utah near St. George, said there have been times when the federal government called the tribe, got no response, and still said it counted as consultation.
In 2016, the Gila River Indian Community, near Phoenix, learned that Lower Basin states developed a proposal for a drought contingency plan with the federal government — which acts as trustee for the tribes — but without tribal input. The proposal would cut considerable amounts of the tribe’s water, said Gov. Lewis.
“Our trustee couldn’t be bothered at the time of consulting with us as the plan was being discussed among the Lower Basin states,” he said. “As a result of this initial first misstep, we made it clear to the United States that, going forward, they would never leave us out of the loop again when others were discussing actions that would negatively impact our water supplies.”
As the basin governments gear up for a new round of negotiations to formalize drought response operations starting in 2027, the tribal representatives said they wanted to have seats at the table with decision-makers — before decisions are made.
Lewis announced a proposal during the event: Whenever the United States decides to meet with all seven basin states, it would be required to include all 30 tribes as well.
The meetings would not replace the federal consultations with tribes, nor would it replace subgroup meetings among different parties, he said. But it would be a new requirement that would trigger tribal inclusion.
The state representatives said it’s widely accepted that tribes need to be part of the conversation, although exactly how they will be included is still being worked out.
Of the basin’s 30 tribes, 22 have land within Arizona. Buschatzke said people should be able to make their case during the decision-making process, but that there should also be an acknowledgement that the decision will fall wherever it falls.
In response to Lewis’ proposal for tribal inclusion, Buschatzke said basin governments need to have the flexibility to meet in different groups as needed. If the federal government was required to call in 30 tribes every time the states needed to be in the room, it would be tough.
“We’ve got to have different levels of communication that build up to proposals that can come to that decision point,” Buschatzke said.
Lorelei Cloud, vice chair of the Southern Ute Indian Tribe, which has reservation land in southwestern Colorado, said she has already seen some improvements in efforts to incorporate tribes. Recently, the Upper Basin states took the lead in incorporating tribal nations in drought-response operations agreements, she said.
“The Upper Basin states have done a lot of good things for the tribes in the Upper Basin,” said Cloud, who also represents southwest communities on the Colorado Water Conservation Board. “We want to thank them for that. … We’ve been wanting that for a long time and they’re finally happening.”
For her part, Mitchell said Colorado has already established communication protocols with the two Ute tribes that have reservation land in the state, but that officials need to make sure inclusion will last in the long term.
“What can we do that lasts beyond us?” she said. “Oftentimes, what we do is the prerogative of who’s sitting in the room. The accountability piece of that needs to come into play.”
Top water issues among Upper Basin tribes
Tribal priorities extend beyond the upcoming negotiations: Tribal representatives from the five tribes in the Upper Basin said a plethora of issues still need to be addressed, ranging from water quality to federal agreements that haven’t been upheld.
Crystal Tulley-Cordova, a Navajo Nation hydrologist, discussed water quality, highlighting significant problems with uranium and arsenic contamination and the 500-plus abandoned uranium mines on the reservation.
Cloud of the Southern Ute Indian Tribe emphasized ongoing challenges with the federal Animas-La Plata Project, which created Lake Nighthorse Reservoir near Durango. The tribe has rights to water in Lake Nighthorse but can’t access it because of a lack of infrastructure and high federal operation and management fees.
“We can drive by and look at it,” Cloud said. “I guess we can pay to play in it like everybody else, but we can’t use that water.”
Once the tribe draws from the reservoir, it has to pay fees of about $600,000 each year, which means any project that draws from that source needs to be financially sustainable, Cloud said.
The federal government has also neglected required maintenance on miles of irrigation ditches across the reservation since the 1960s. Out of 175 miles of ditches, only 25% work, she said.
Despite the challenges, the tribe plans to use all of its water.
“Everybody else who has water rights had the opportunity to develop their water. As my tribe, the Southern Ute Tribe, we fully intend to put our water to use,” Cloud said.
Tabee of the Ute Indian Tribe talked about legal and legislative challenges among the tribe, Utah and local counties over the tribe’s water. Going forward, he called for more action, saying the tribes have been consulted “to death.”
“Here we are talking about it again. Where’s this conversation going to lead to? Are we going to be here 10 years later, and some other leaders are going to be here talking to some of you same people? I don’t know,” he said. “I’m just hopeful … for some kind of action.”
Avery Tafoya, a council member for the Jicarilla Apache Nation, just over the Colorado border in New Mexico, said the future feels uncertain: The tribe has settled its water rights, but as the drought and climate change continue, its water could be taken away.
Attorney Peter Ortego represented the Ute Mountain Ute Indian Tribe, which spans parts of southwestern Colorado, New Mexico and Utah. The tribe has completely settled its water rights in Colorado but is still in litigation over water rights in New Mexico and Utah, he said.
Ortego also talked about the Animas-La Plata Project. There are important burials under Lake Nighthorse, he said.
“And yet, what do we talk about with that water? We talk about recreation. … We don’t bring people to it out of respect for it — they go to it because they want to enjoy it. They want to use it,” he said. “That’s fine; that makes sense. I understand that. But do they really know what they’re involving themselves with? I don’t think they do.”
CORRECTION: This story was updated at 4:30 p.m. Dec. 13, 2023 to correct the spelling of Ute Indian Tribe Vice Chairman Christopher Tabbee’s last name.