Six Upper Basin tribes gain permanent foothold in Colorado River discussions at key interstate commission

Six tribes in the Upper Colorado River Basin, including two in Colorado, have gained long-awaited access to discussions about the basin’s water issues — talks that were formerly limited to states and the federal government

Under an agreement finalized this month, the tribes will meet every two months to discuss Colorado River issues with an interstate water policy commission, the Upper Colorado River Commission, or UCRC. It’s the first time in the commission’s 76-year history that tribes have been formally included, and the timing is key as negotiations about the river’s future intensify.

“The tribes’ participation in the UCRC really didn’t start until a couple of years ago,” said Peter Ortego, general counsel for the Ute Mountain Ute Indian Tribe. “But Ute Mountain has always been in favor of having a robust tribal role in the UCRC, so we were glad to see the [agreement] come about.”

The Upper Colorado River Commission, established in 1948 by Congress, has permanent seats for a federal representative and commissioners for the four Upper Basin states — Colorado, New Mexico, Utah and Wyoming.

In recent years, Upper Colorado River commissioners’ discussions have focused on key issues, like how to spend federal dollars and respond to a prolonged drought that is threatening the future water security of 40 million people across the West.

The commission has also become a key forum for sharing updates on the negotiations that will decide how the basin’s water storage reservoirs will be managed after the current rules expire in 2026. The four state commissioners are also the top negotiators for each Upper Basin state.

The six Upper Basin tribes have long asked for a seat at that table and in other forums where Colorado River decisions are made.

The 30 federally recognized tribes, including the six in the Upper Basin, have rights to about 26% of the river’s average flow. A century ago, state and federal leaders did not include tribes in foundational water-sharing agreements despite federal recognition of tribal water rights in years prior. As recently as 2007 and 2019, state and federal partners developed new rules for managing the river in response to prolonged drought, but again, tribes were not included.

The new agreement, signed by tribal officials April 22, aims to correct that exclusion.

Both federally recognized tribes with reservation land in Colorado, the Southern Ute Indian Tribe and the Ute Mountain Ute Indian Tribe, joined the agreement. The agreement also includes the Jicarilla Apache Nation, the Navajo Nation, the Ute Indian Tribe and the Paiute Indian Tribe of Utah. The commission approved the agreement in early March.

The river commission has no authority in the Lower Basin, which includes Arizona, California, Nevada and more than 20 tribal nations, and does not have a similar, centralized commission.

The six Upper Basin tribes and commissioners have been meeting regularly since August 2022. Under the agreement, those meetings will continue permanently, giving tribes a long-awaited voice in the discussions but no vote in the commission’s decisions. That change would require Congressional approval.

“We have safeguarded these lands and waters since before there was a state, and our responsibility continues to this day,” Southern Ute Indian Tribe vice chair Lorelei Cloud said in a prepared statement. The memorandum of understanding, she wrote, “stands as a powerful symbol of our enduring connection to this sacred resource.”

What’s next for the tribal discussions?

The first meeting under the new agreement took place April 23, according to the river commission.

Through the joint meetings, officials plan to prioritize calculating water losses in the Lower Basin, continuing water conservation programs, helping tribes participate in Colorado River decision-making, and ensuring that the Upper Basin will be able to protect water levels in Lake Powell, the massive reservoir on the Utah-Arizona border, according to a 2022 commission plan.

Most immediately, the commission wants a key number: How much water goes unused by tribes and flows down to the Lower Basin?

The six Upper Basin tribes have settled legal rights to use about 1.1 million acre-feet of water per year, according to 2021 Water and Tribes Initiative analysis. One acre-foot roughly equals the annual water use of two to three households.

The analysis estimated that Upper Basin tribes might only be using 37% of their allowed water. Some rights are still unresolved, caught up in legal cases or settlement negotiations. Several tribes have quantified water rights but lack the infrastructure to deliver it to homes, businesses and farms.

“It’s fair to say a portion of the water that is flowing downstream to the Lower Basin, and being relied upon in the Lower Basin, is settled but unused tribal water from the Upper Basin tribes,” said Chuck Cullom, executive director of the Upper Colorado River Commission.

Another top priority: determining whether tribes can participate in paid conservation programs.

Lower Basin water users can be paid to let water, which comes from the Upper Basin, flow past their lands as part of conservation programs, according to Upper Basin officials. Tribes, however, aren’t compensated for their unused water from settled water rights.

This is a key issue for Ortego. Both tribes in Colorado have rights to water they currently can’t access in Lake Nighthorse Reservoir near Durango. He wants to know if the Ute Mountain Ute Indian Tribe can be compensated for letting that water pass its lands through programs like the system conservation pilot program.

He also wants to see officials broach ways to give tribes more legal flexibility to use their water in different ways and to fund tribal water infrastructure projects. When it comes to including tribes in Colorado River discussions, officials are just starting to figure it out, he said.

“The tribes don’t necessarily know what the solution is, and neither does everybody else,” Ortego said. “We’re all trying to figure out the best way to incorporate tribes. I really appreciate the effort of the UCRC in doing that.”

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