Preparing for a drier future: A complicated history of water rights in the West
The Ute people are the oldest residents of Colorado. Therefore, in accordance with the Prior Appropriation Water Rights doctrine, the Southern Ute tribe has senior water rights. Yet, a recent study from the Bureau of Reclamation’s Colorado River Basin Ten Tribes Partnership Tribal Water Study showed they only use a fraction of their allocated water.
The study reports that the 10 tribes who participated have reserved water rights of up to 2.8 million acres of water per year. Currently, they only use 1.4 million of this supply. As they move towards the future, most tribes along the basin anticipate using their full water rights by 2040. This shift in water usage could damage users with junior claims who are currently utilizing the downstream flow.
As the Colorado River Basin prepares for a future of increased drought, it's more important than ever for water managers to collaborate with tribes and other local stakeholders. Especially since current operation guidelines for the basin will expire and be renegotiated in 2026. The Southern Ute tribe, however, is prepared to be left out of the conversation once again.
Jennifer Gimbel, Colorado Water Institute’s senior water policy scholar, comments, "In the past, they (Native American tribes) have been left out of being at the table on water issues like the Colorado River and the negotiation of the 2007 guidelines. I think states and the federal government are working hard to correct that, at least on the Colorado River, and I think overall in the West. But it’s still not to the point where the tribes are treated as what they are, which is an independent nation.”
The United States government correction efforts include the House of Representatives recently proposed Western Water Security Act of 2019, or H.R. 4891. The bill, sponsored by Representative Xochtil Torress Small from New Mexico, aims to combat future water needs by authorizing funding to Western States for research, technology, and infrastructure. This would mean state governments, nonprofit conservation organizations, and Native American tribes, such as the Southern Ute, would have access to these funds in water emergencies.
The bill enjoys support from Reps. Joe Neguse and Scott Tipton, representatives of Colorado’s second and third congressional districts, respectively. Tipton’s district stretches across the southwestern part of the state including the Southern Ute tribe reservation. Plans to accomplish this ambitious initiative involve improving access to groundwater through the use of aquifers and other advanced technologies.
Peter Diethrich, environmental program manager for the Southern Ute tribe, said, “We try to be proactive about everything, so even if there is a House bill passed hopefully we are more agile than the state or nation to put in effective best management procedures prior to that becoming a need.”
As of July 2019, the tribe had allocated $40 million to water and wastewater services. In lieu of this budget, they are also currently constructing a $3 million reservoir to hold and preserve emergency water storage.
James Hyre, water engineer and president of Western Water Consulting Inc., said the cost of constructing a reservoir has increased over the years, however, on average, one acre-foot costs $8,000. This could mean the Southern Ute tribe is building approximately a four hundred acre-foot reservoir.
Hyre said, “Four hundred is a pretty typical size. Kind of a rule of thumb is that one-acre foot can maybe supply enough water per year to meet the annual water demands of around four hundred residential homes. Typically, it’s estimated that about 3.2 people live in one residential home.”
If the reservoir is used solely for agriculture though, it has the potential to irrigate around 250 acres of land. In both scenarios, it is assumed the reservoir can be refilled with water each year.
“Under drought conditions, this assumption likely would not hold true,” Hyre noted.
The reliability of the Southern Ute tribe’s surface water supply varies year to year depending on the Colorado River Basin. Currently, the majority of their water supply is used for agricultural irrigation. The tribe’s reservation expands over 682,880 acres, yet only 7,500 of these acres are actively being irrigated.
The Southern Ute tribe has a long history of distrust with the government and media. After a series of lengthy conversations with the tribe spokesperson, they refused to comment, leaving open the question of how specifically the $40 million will be allocated.
While the Southern Ute tribe doesn’t express the same need for help from the federal government to meet their water needs in a drier future, other stakeholders in Southwestern Colorado have a special interest in seeing this bill pass.
Durango, a small town tucked away in the mountains of Colorado hugging the border of New Mexico has become the poster child for water rights. It is one of many Western mountain towns that has been negatively affected by the drought. In the fall of 2017, southwest Colorado had the second-lowest water year ever recorded.
Today, the region remains in a severe drought. This climate leads to an extended fire season, low surface water and river flow, and forces farmers to reduce planting and cattle sales. The region is desperately searching for a solution.
J. Paul Brown, a cattle and sheep rancher in Ignacio, Colorado, thinks public and private water storage is the key to a successful agricultural future.
“I’ve been through some droughts, but our salvation down here and I think for farmers and ranchers in Colorado is our water storage. Our water comes out of the Vallecito reservoir,” said Brown.
The Vallecito reservoir was constructed in 1941 as part of the Pine River Project that stores runoff from the Pine River. The purpose of the project was to provide irrigation and flood control benefits to the area. In addition to recreational activities, the Vallecito reservoir currently provides irrigation to 40,000 acres of private land in addition to 17,000 acres of irrigation to the Southern Ute tribe reservation.
This isn’t the first time the Southern Ute tribe has worked alongside the federal government to provide water for the region. Gimbel praises the work the West has done to prepare for a drier future, but says there is still more to be done.
“I think that we have to continue to adapt to what mother nature throws at us,” said Gimbel. “I think we do need more storage to help us store water when there’s plenty there in spring runoffs, and to allow us to manage that water in an operation that’s more sustainable for both the rivers and the people.”
The Lake Nighthorse project in Durango, Colorado, authorized in 1968 opened to the public in 2018, is another example of the federal government working together with tribes, like the Southern Ute, to meet water rights for the region. As part of the Animas La Plata project, the reservoir is open for recreational use while the undeveloped areas are left sacred and untouched by the public.
The need for reservoirs, both to control seasonal flooding and to ensure a steady supply of irrigation water throughout the growing drought is universally recognized by stakeholders in southwestern Colorado. The Western Water Security Act hopes to give these individuals greater reassurance in their water supply as they look towards a drier future.
The bill, which was first introduced in the House on Oct. 28, 2019, was ordered to be reported by the yeas and nays after extensive revisions by the Committee on Natural Resources on March 11, 2020.
“It was a dire situation three years ago,” Hyre said. “We should be making decisions before the drought is a serious problem. We should kick the can as far down the road as possible now so we’re not worrying about it every year.”
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