#ColoradoRiver, stolen by law — @HighCountryNews #COriver

Image credit: Gabriella Trujillo/High Country News

Click the link to read the article on The High Country News website (Pauly Denetclaw) [March 1, 2022]:

The turbulent, choppy waters of the Colorado River pull from tributaries as far north as Wyoming before they race south for hundreds of miles, crashing together as they churn through the Grand Canyon, then smoothing out as they roll south. In southwestern Arizona, where the Sonoran and Mojave deserts meet, the river gently makes its way through Aha Makhav lands.

In the Mohave language, Aha Makhav means “the Water People.” The Mohave, Chemehuevi, Hopi and Navajo — the four tribes that comprise the Colorado River Indian Tribes, a federally recognized tribe that is also known as CRIT — have relied on floodplain and irrigated agriculture along the Colorado for 4,000 years. The CRIT Reservation was established in 1865 for the “Indians of the Colorado River and its tributaries.” (That vague language made it easier for the tribe to welcome people from the Hopi and Navajo nations in the ’40s.) Today, the reservation’s green, lush farmland stands out against the dry desert that surrounds it.

“These valleys have always been traditional lands to us,” Amelia Flores, CRIT’s chairwoman, said in January. “It is evident in our clan songs that follow along the river.” The water from the Colorado helps the mesquite tree — a tree of life for the Mohave people — flourish. “The roots provide, for the babies, the cradle boards that they are cradled in, and when a person dies, we use the wood for the funeral, for the cremation,” Flores said. “It goes from birth to life.”

The Colorado River sustains the culture, economy and future of 30 Southwestern Indigenous nations. And in a just world, these nations — the river’s most senior users — would be central to its management in a postcolonial society. But for the past century, the United States has repeatedly ignored the river’s original managers, despite the fact that 10 tribes within the Colorado River Basin hold 20% of the river’s total water rights. With a drought stretching into its second decade and the impacts of climate change now undeniable, the tribes are working together to ensure a future of inclusion.

Modern water policy sits on a 200-year-old foundation of laws written and executed by non-Indigenous politicians. The modern reservation system, which is the foundation of Indigenous water rights, was formed in 1851 under the Indian Appropriation Act. Meanwhile, the Indian Intercourse Act, passed and updated throughout the 18th and 19th centuries, held that while Indigenous nations were guaranteed land and water rights when reservations were created, they lacked the right to sell that water. Instead, they had to save it for what the federal government considered a necessary use. (Unsurprisingly, the federal government also got to determine what qualified as necessary.) These policies simultaneously ensured and hindered the tribes’ sovereign authorities — giving them, in theory, legal rights to water without the means to access the water or even advocate for utilizing those rights, typically for farming, personal and cultural use.

U.S. water policy, like the reservation system, was crafted to eradicate Indigenous ways of life and people. As reservations confined tribes to one location, forcing them to transition to agrarian lifestyles, the federal government, as their trustee, failed to build or provide funds for up-to-date water infrastructure, allowing the U.S. to effectively control Indigenous water access. In 1867, two years after CRIT’s modern reservation was established, the Bureau of Indian Affairs authorized $50,000 for building the Colorado River Indian Irrigation Project. The project was ultimately never finished, a recurrent theme when it comes to Indigenous water infrastructure.

“We don’t have the full rights to our water,” Flores said. “That’s the bottom line.”

But by establishing tribes as the senior-most water right users in the basin, the U.S. tied itself into a legal knot. The Winters doctrine, which became law in 1908, confirmed the seniority of Indigenous water rights. Winters v. United States was a Supreme Court case that focused on Montana settlers who built a dam on the Milk River, which interfered with agriculture on the Fort Belknap Reservation. It established that the reservation’s creation reserved water rights, and that those rights were exempt from appropriation under state law. In effect, it meant that tribes were not subject to the “use or lose it” policy that defined state water law.

Governor Clarence J. Morley signing Colorado River compact and South Platte River compact bills, Delph Carpenter standing center. Unidentified photographer. Date 1925. Print from Denver Post. From the CSU Water Archives

This landmark case established today’s legal footing for Indigenous water rights, while leaving many practical questions unanswered, and it was immediately ignored by American legislators. In 1922, seven states — Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming — negotiated the Colorado River Compact without any input from Indigenous nations, even declaring, “Nothing in this compact shall be construed as affecting the obligations of the United States of America to Indian tribes.” State officials claimed that the Compact was designed for the “equitable division and apportionment of the use of waters of the Colorado River System.”

As the federal government slowly realized over the coming decades that it was bound by trust responsibilities to advocate on the tribes’ behalf, state and local governments, as well as private entities, repeatedly fought tribes over water rights. This led Indigenous nations, including the Colorado River Indian Tribes, to take them to court. One of those cases was Arizona v. California, in which the Supreme Court decreed water rights for the CRIT and five other nations in 1964. “If it wasn’t for the federal government stepping in, Arizona and California might have taken all the water,” Dwight Lomayesva Jr., the vice chair of the Colorado River Indian Tribes, said.

The Supreme Court’s action was a limited victory. Its usefulness lies in its permanence. Whereas water rights settlements — in which Indigenous governments willingly enter into legal negotiations with state and local shareholders to more quickly establish and access their claims — can be appealed and challenged even after they’re signed, the precedent in Arizona v. California is locked. But while the court’s decision defined the amount of acre-feet of water per year that each nation could use, it also saddled tribes with the subsequent management and infrastructure costs.

“There was no infrastructure attached to (Arizona v. California) so that the tribe could make beneficial use of that water — it was just a number,” Devin Rhinerson, a federal representative for the Colorado River Indian Tribes, said. “It is very secure, in that the Supreme Court has already acted. So it’s not really subject to a legal challenge in the same way that a settlement may be, but it’s also not flexible.”

Arizona v. California also did not require the state or federal governments to provide funding for maintenance, either — a problem, since many Western irrigation canals were built over a century ago. As a result, the CRIT has been unable to update any of its roughly 250 canals — this, in a nation that uses most of its water for agriculture and every year pulls nearly 640,000 acre-feet for farmland that is both leased to non-Natives and used by its own citizens.

“We have hundreds of miles of canals, and we’re losing a lot of water to the dirt canals and water going back into the river,” Vice Chair Lomayesva said. “Our whole infrastructure has been put together haphazardly.”

This story is echoed up and down the river. Water access and lack of infrastructure is a direct result of federal Indian water laws being written and then ignored ad nauseam. According to the U.S. Department of Health and Human Services, 9,500 homes on the Navajo Nation lack access to running water. Indigenous leaders realized that no single state agency or federal department needed overhauling; instead, as Daryl Vigil, the water administrator for the Jicarilla Apache Nation, explained, the law of the river itself must change. The knot of principles and policies enacted by Congress and the Supreme Court were designed without input from the nations they were supposed to serve. But changing laws and guidelines requires time, money and political strength: Time, to navigate drawn-out court proceedings and settlement processes; money, to help tribes access, transport, sell and save their water; and the political strength to convince policymakers that Indigenous water rights are not optional.

In 1992, 10 nations — the Colorado River Indian Tribes, as well as the Ute Tribe, Southern Ute, Ute Mountain Ute, Jicarilla Apache, Navajo Nation, Fort Mojave, Chemehuevi, Quechan and Cocopah — created the Colorado River Basin Tribes Partnership, later renamed the Ten Tribes Partnership. Vigil said the Partnership idea gained steam as the nations realized that the time-consuming legal process was not the only way to leverage their power as senior water-rights holders.

“My tribe started its settlement process in the ’70s,” Vigil said, referencing a bill passed by Congress in 1992 that secured 45,682 acre-feet per year for the Jicarilla, along with a small amount of funding. “It took almost 20 years to finalize.”

Despite the Partnership’s formation, the Colorado River Water Users Association (CRWUA), an organization representing the states along the river whose membership wields a huge political influence over basin water policy and management, sought to discourage settlement tribes from joining. In 1996, the Partnership applied for membership. The association offered each basin state three seats on its board of trustees, but gave tribes just a single one. According to Vigil, Indigenous leaders from the Partnership confronted the association in Las Vegas, where members gather for an annual meeting. The confrontation paid off in the short term, earning them membership and three board seats. “That was a really, really big deal back in that time,” Vigil said. (Crystal Thompson, the association’s public affairs committee chair, said she hadn’t heard about the confrontation and added that the group is working to better document its history.)

The tribes hoped that being a part of the association would encourage state and federal officials to include them in conversations around water rights. But, by the late 2000s, the Ten Tribes Partnership was mostly limited to sharing information internally between the tribes. Vigil ascribed this to the partnership’s ad hoc nature and the fact that Indigenous leaders were already stretched thin by their commitments as government officials. Then, in 2007, the Bureau of Reclamation issued its 56-page interim guidelines for Lower Basin water shortages, laying out an 18-year plan for how to manage reservoirs during sustained drought. Echoing the original 1922 agreement’s hollow promise of equity, the authors claimed they had “conducted government-to-
government activities” with the Indigenous nations along the river and that the tribes “were notified of the action.” According to Vigil, proper consultation sessions never happened. Two years later, Reclamation, the seven Upper and Lower Basin states and other stakeholders embarked on a basin-wide supply-and-demand study of the Colorado River Basin that would later guide water policy. Once again, Indigenous nations were left out.

From the 2018 Tribal Water Study, this graphic shows the location of the 29 federally-recognized tribes in the Colorado River Basin. Map credit: USBR

“With a quarter ownership of the Colorado River, it was just unconscionable,” Vigil, a former chairman of the Partnership, said. He called the group’s exclusion a “turning point.” Indigenous leaders recognized that they needed a way to leverage their combined strength and support one another. So the Partnership undertook its own water study to ensure that the tribes’ perspective was heard. The 362-page report, published in 2018 with the assistance of the Bureau of Reclamation, details the specific needs and plans of Indigenous nations in the Colorado River Basin and how those plans have been affected, first by existing U.S. policy and now by climate change. “Even under the most favorable of circumstances for rapid tribal water development, the amount of water that will be used by the Tribes is dramatically overshadowed by the effect of climatic conditions on the overall supply of water in the Basin,” the Partnership wrote in the foreword.

Dr. Crystal Tulley-Cordova speaking at the 2021 Colorado River Water Users Association Annual Conference

Flores, CRIT’s chairwoman, called the Partnership “a plus” for the nation. Along with other leaders from the Ten Tribes Partnership, Flores attended the annual Colorado River Water Users Association conference in Las Vegas last December, where, according to the Arizona Republic, the nations’ flags were flown alongside those of the other federal and state association members, and Indigenous officials were incorporated into the conference’s full schedule, rather than siloed as they had been before.

“As a collaboration, a partnership, our voice is stronger,” Flores said. “We all come from different reservations. Our needs, our water needs, or our water situations — we’re all different. But we can come together and support one another when it comes to our water rights.”

The path forward requires working with three federal governmental entities to secure water rights, while continuing to strengthen relationships between the state and local governments that will be crafting the new drought guidelines. The Colorado River Indian Tribes are currently working with Arizona Sens. Mark Kelly and Kyrsten Sinema to pass the Colorado River Indian Tribes Water Resiliency Act of 2021, which would allow the nation to tap into a potential source of revenue by leasing its water rights. At the same time, the Partnership is looking ahead to 2025, when the 2007 interim drought guidelines — the ones created without Indigenous input — expire, and, as Vigil said, “a new management framework will need to be created.” The tribes will have to work individually to ensure their specific needs are addressed, while continuing to employ the strength found in collaboration.

Colorado River “Beginnings”. Photo: Brent Gardner-Smith/Aspen Journalism

The future will, in many ways, resemble the past, with sovereign nations still forced to prove their senior rights every time they want to move closer to water independence. But both Flores and Vigil pointed out that their strength in the ongoing fight is grounded in seeing the Colorado River as more than a plumbing system. It is the giver of life, flowing from one generation to the next. Securing water rights is about the future — of both the tribes and the river.

“The river has taken care of us for many, many years,” Flores said. “We need to, in turn, do our part, so the water can continue to flow along (its) banks.”

Governor Polis opposes Renewable Water Resources #water export plan, US Senators Bennet & Hickenlooper concur, invoking Wirth Amendment — The #Crestone Eagle #RioGrande

A view of public lands around the Sangre de Cristo Mountains and just south from the area Renewable Water Resources has proposed a wellfield for water exportation. Photo credit: Alamosa Citizen

Click the link to read the article on the Crestone Eagle website (Lisa Cyriacks). Here’s an excerpt:

Polis has issued a statement that he is: “against any inter-basin transfer without local support of impacted communities. This is a proposed inter-basin transfer with deep concerns and opposition in the San Luis Valley and the governor is opposed.”

Polis joins Colorado Attorney General, Phil Weiser, who has already expressed strong opposition to the trans-basin export.

Last week, US Senators Michael Bennet and John Hickenlooper issued a statement opposing the RWR proposal and invoking Public Law 102-575, also known as the Wirth Amendment. The Amendment, named for former Colorado Senator Tim Wirth, provides for review by the Department of the Interior prior to approval of any export of water from the San Luis Valley.

#PFAS manufacturers sued by #Colorado attorney general for environmental and health damages — Colorado Newsline

Colorado Attorney General Phil Weiser filed a lawsuit Monday against companies that produce PFAS, which are man-made chemicals that have been associated with cancer and serious disease.

The complaint was filed in Denver District Court against 15 manufacturers including Chemguard, Corteva and DuPont and alleges that those companies should have known the extreme health risks associated with their firefighting products before marketing and distributing them.

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PFAS, short for perfluoroalkyl and polyfluoroalkyl substances, which are also known as “forever chemicals,” is a component in aqueous film forming foam (AFFF), which is used to fight high-hazard fires, like jet fuel fires and chemical fires. PFAS is also used in cookware and cleaning products. It persists in the environment for an extremely long time and has been linked to cancer, kidney disease, serious birth defects and lower vaccine efficacy.

“The companies responsible for making firefighting foam with toxic forever chemicals and selling it for use in our state long after they knew or should have known of the harmful nature of this foam have caused harm to our communities. Colorado now has forever chemicals in our soil and drinking water systems and people’s health is at risk,” Weiser said in a statement.

A map from the non-profit Environmental Working Group shows a high number of PFAS contamination sites in Colorado, especially in drinking water and on military sites near Colorado Springs. The lawsuit notes that AFFF has been used at Peterson Air Force Base, Buckley Air Force Base, Fort Carson, the Suncor oil refinery and other federally-regulated airports. A 2020 from the Colorado Department of Public Health and Environment shows PFAS contamination in 34% of the sampled drinking water systems.

Weiser wants a court order for the companies to investigate, restore and monitor sites where AFFF was released. The lawsuit accuses the defendants of negligence, public nuisance, trespassing and unjust enrichment. It accuses DuPont, Chemours and Corteva of violating the Colorado Uniform Fraudulent Transfer Act.

“These companies knew that these chemicals posed significant threats to human health and the environment and nonetheless put Colorado at risk; it is important that they pay for the harm they caused,” Weiser said.

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#LakePowell to Temporarily Decline Below 3,525 Feet: Coming months crucial to #drought response planning — Reclamation #ColoradoRiver #COriver #aridification

Lake Powell boat ramp at Page, Arizona, December 17, 2021. Photo credit: Allen Best/Big Pivots

Click the link to read the article on the Reclamation website (Becki Bryant and Patti Aaron):

The Bureau of Reclamation today announced Lake Powell will decline below 3,525 feet in elevation in the near future, reflecting the abnormally dry winter season. The drop is temporary and Lake Powell’s elevation is expected to recover above 3,525 feet through the course of the spring runoff season, likely in May. Reclamation, the Upper Division States, and the Upper Colorado River Commission are preparing additional measures to implement later this year to help maintain elevation 3,525 feet at Lake Powell.

A very dry January and February eroded the Colorado River Basin’s snowpack, decreasing Lake Powell’s projected unregulated inflow forecast for water year 2022 by approximately 2.2 million acre-feet from January through February. As a result, the February 24 Month Study projections show Lake Powell potentially dropping 2 to 3 feet below 3,525 feet in March.

As part of the 2019 Drought Contingency Plan Agreements, specifically the Drought Response Operations Agreement, Reclamation and the Upper Division States describe elevation 3,525 feet as the target elevation and elevation 3,490 feet as the minimum power pool elevation, the lowest point Glen Canyon Dam can generate hydropower. The target elevation provides a 35-foot buffer and allows time for response actions to help prevent Lake Powell from dropping below minimum power pool.

“This year the Colorado River Basin has experienced extremely variable conditions with a record high snowpack one month, followed by weeks without snow,” said Reclamation Acting Commissioner David Palumbo. “This variable hydrology and a warmer, drier west have drastically impacted our operations and we are faced with the urgent need to manage in the moment.”

Consistent with the provisions of the Drought Response Operations Agreement, Reclamation, in consultation with the Upper Division States, through the Upper Colorado River Commission, has twice implemented proactive drought response operations that together have helped protect Lake Powell’s target elevation: 1) sending an additional 161 thousand acre-feet of water from Blue Mesa and Flaming Gorge reservoirs to Lake Powell from July 2021 through October 2021, and 2) temporarily reducing monthly releases from Glen Canyon Dam in order to hold back 350 thousand acre-feet of water in Lake Powell from January 2022 through April 2022 for release later in the year. The combined impact of these proactive actions ensured that Lake Powell will avoid dropping significantly below the target elevation of 3,525 feet during the spring of 2022.

“Reclamation is not planning to take further action to address this temporary dip below 3,525 feet because the spring runoff will resolve the deficit in the short term,” said Reclamation Upper Colorado Basin Regional Director Wayne Pullan. “However, our work is not done. Lake Powell is projected to drop below elevation 3,525 feet again later this year. Reclamation and the Upper Division States continue to collaborate with stakeholders and partners to develop and implement additional actions later this year if appropriate.”

Reclamation’s Upper Colorado Basin Region and the Upper Division States, with the assistance of the Upper Colorado River Commission, are preparing a Drought Response Operations Plan that will propose additional actions to help protect Lake Powell elevations in 2022 if necessary.

“We appreciate the collaboration among Reclamation and the Upper Basin States at this critical time to develop the 2022 Drought Response Operations Agreement Operations Plan. We are optimistic these actions will provide additional protection to critical elevations in Lake Powell,” said Chuck Cullom, Executive Director of the Upper Colorado River Commission.

2022 #COleg: Turf replacement bill gains ground: Outdoor landscaping is largest use for some Western Slope water providers — @AspenJournalism

Thornton home and lawn 2019. Photo credit: Brent Gardner-Smith/Aspen Journalism

Click the link to read the article on the Aspen Journalism website (Heather Sackett):

Colorado could soon have a program that would pay property owners to get rid of one of the largest water uses for Western Slope water providers: grass.

A turf replacement bill [HB22-1151 Turf Replacement Program:Concerning measures to incentivize water-wise landscapes, and, in connection therewith, creating a state program to finance the voluntary replacement of irrigated turf] , which passed unanimously this week out of the House Agriculture, Livestock & Water Committee, would require the state water board to develop a statewide program to provide financial incentives for the voluntary replacement of irrigated turf with water-wise, drought-resistant landscaping. Local entities that already have turf-replacement programs could apply to the Colorado Water Conservation Board for money to help increase the rebate to property owners. In areas where a program doesn’t currently exist, the CWCB would have to hire a contractor to administer a program.

The drafters of House Bill 1151 say it is aimed at efficient water use and would increase communities’ resilience to drought and climate change, reduce the sale of agriculture water rights to meet increased demand in cities, and protect river flows. Sponsors are asking the program to be funded with $4 million from the general fund. The bill’s next stop is the House Appropriations Committee.

Colorado would be following in the footsteps of other states that take water from the dwindling Colorado River by expanding these so-called “cash for grass” programs. Some Colorado municipalities and water providers already have lawn buy-back programs; the bill could increase the incentives they give to customers.

Vail has begun methodically removing grass from its parks from areas that serve little purpose, partly with the goal of saving water. Buffehr Creek Park after xeriscaping. Photo: Town of Vail

According to bill sponsor Rep. Dylan Roberts, who represents Routt and Eagle counties, nearly 50% of the water used between the municipal and industrial sectors goes to the outdoor watering of non-native turf grasses.

“That’s not the type of activity we should be doing in our state when we are facing such a drought,” he said. “If this bill can help incentivize folks to make the right decision about water conservation in their community, that’s a win.”

Each acre of turf removed saves one to two acre-feet of water per year, according to the bill’s language.