A policy brief released by the Property and Environment Research Center (PERC), a free market environmental group, is advocating for Tribes to be able to opt in or out of water marketing.
This would enable Tribes to capture the full value of their water rights and direct water to sectors where it is needed most.
“With some of the most extensive and senior water rights in the West, the potential influence of Native American tribes over water markets and trajectories of future water use cannot be overstated,” PERC wrote.
PERC noted the ability is urgent, as the Bureau of Reclamation declared a Tier 1 shortage for low water levels on Lake Mead, triggering water cutbacks for Arizona, Nevada and Mexico. The Gila River Indian Community and Colorado River Indian Tribes (CRIT) have helped maintain Lake Mead’s water levels by leasing water to federal agencies and municipal governments in the Lower Colorado River Basin, while receiving “millions of dollars in revenue.”
In December, the Tribes signed a memorandum of understanding with the federal government to leave water in Lake Mead as part of the 500+ Plan. The 500+ Plan asks the Lower Basin states to voluntarily cut back 500,000 acre-feet (one acre-foot is 325,851 gallons) to keep Lake Mead water levels above 1,030 feet.
The Colorado River Basin’s 29 federally recognized Tribes hold combined rights to 3.6 million acre-feet of water, or roughly 25 percent of the Colorado River’s annual flow. The rights were guaranteed in the 1908 Supreme Court ruling in the case of Winters v. the United States, which ruled Tribes are entitled to water needs for self-sufficiency, with the priority date of when the federal government negotiated a reservation with the Tribe. However, the ruling did not quantify or establish Tribes’ water rights until the court was called again on Tribal water rights in the case of Arizona v. California in 1963.
PERC noted that while court cases have established water rights, funding for water infrastructure can take decades, and the 20 Tribes with deeded water rights have not used roughly 1 to 2 million acre-feet of water. The unused water could be an opportunity for Tribes to lease the unused portion, benefiting Tribes with leasing revenues of “$563 million to $1.3 billion, or between $3,200 and $7,300 for every person residing on these reservations,” according to PERC.
The barrier for Tribes is they cannot lease water without authorization by Congress. The Indian Nonintercourse Act bars Tribes from transferring Tribal trust assets without Congress, and Tribal water rights are held in trust by the federal government.
According to PERC, as of 2020, “23 of the 34 congressionally enacted settlement agreements that defined water rights for tribes also allow some form of tribal water marketing,” but permission is still needed outside the adjudication process. Therefore, “Restrictions on tribal water marketing limit the efficacy of water markets to flexibly reallocate water to its highest-value use.”
PERC recommends federal legislation authorizing Tribes to market water off-reservation, as there is already legislation for Tribes to lease natural resources such as oil and gas.
While CRIT acquired water rights in 1963, they called for legislation authorizing water marketing in 2020. At the end of December 2021, both Arizona senators introduced the Colorado River Indian Tribes Water Resiliency Act for CRIT to lease a portion of its water allocation and improve water efficiency on Tribal lands.
PERC pointed out the legislation only applies to CRIT, and waiting to pass 13 individual pieces of legislation for each of the Tribes with water rights “undermines the ability of water users in the region to respond to drought and manage water more responsibly.”
PERC also recommends Tribes should have “sovereign authority” to use water according to their own needs and priorities and not be limited to long-term water agreements.
“Restrictions on tribal water marketing violate tribal sovereignty, erode the value of tribes’ water rights and perpetuate inefficient and inequitable water use. Federal legislation and financial and administrative support are critical to reducing barriers to tribal water marketing.” — Charles Wallace, WLJ editor
