One tribal nation could decide the fate of Arizona’s drought plan

The Gila River Indian Community could pull out of the plan in light of a new bill threatening to undermine their water rights.

 

Gila River Indian Community Governor Stephen Roe Lewis wrote in opposition to state water managers about a newly proposed bill that goes against the tribe's water settlement rights.

In Arizona, the Colorado River Drought Contingency Plan now hinges on the approval of tribal nations. The plan is meant to levy water cuts to seven Western states, preventing the river and its reservoirs from reaching critical levels — but after a state lawmaker introduced legislation that undermines parts of the Gila River Indian Community’s water settlement, the tribe has threatened to exit the plan. Without tribal buy-in, Arizona’s implementation design will collapse, threatening the Basin-wide agreement. If the latter isn’t signed by Jan. 31, federal officials will scrap it and draw their own. 

The Drought Contingency Plan’s fragile consensus between thirsty stakeholders highlights how tribal water rights, some of the most powerful in the West, can make or break deals in the arid region — where drought is a reality rather than an aberration

Along with the Colorado River Indian Tribes, the Gila River Indian Community is contributing mammoth quantities of water for the plan, especially to help sate vocal farmers in Pinal County with low-priority water rights. Gila River reached a deal with the state in December that, in total, gives up or sells approximately 640,000 acre-feet of water and brings them $90 million from the state and federal governments, according to their attorney Don Pongrace. With that water to conserve and distribute, Arizona will be able to handle the Drought Contingency Plan’s cuts.

The Gila River Indian Community is a water titan in the state. In 2004, after nearly a century of litigation, they reached their historic settlement through the Arizona Water Settlements Act, which delivers them over 650,000 acre-feet of water per year. They’ve created partnerships with cities like Phoenix to distribute resources, actions that have been called “the prototype of positive steps.” 

The recent bill that aggravated Gila River leadership ignores many aspects of their settlement. House Speaker Rusty Bowers, an advocate for farmers during Drought Contingency Plan negotiations, hastily proposed it, trying to repeal a statute often called “use it or lose it”: If someone sits on water for more than five years without using it, they forfeit it to the state to reallocate elsewhere. “Use it or lose it” laws, common in Western states, were upheld in Arizona by the 9th Circuit Court of Appeals last year after litigation from Gila River — the tribe wanted to prevent farmers in the Safford Valley from stockpiling water, which they say allowed them more resources than their annual allocations. By repealing forfeiture laws, water is more easily hoarded, and tribally-led litigation in high courts erased. 

Against legal precedents established by Gila River, Speaker of the Arizona House Rusty Bowers attempted to repeal a statute that would prevent users from stockpiling water.

Kathleen Ferris, a Senior Fellow for the Kyl Institute of Water Policy at Arizona State University, doesn’t think Bowers’ bill is good policy in a drought. And not consulting the tribe, she said, is like “a slap in the face.” 

Gila River’s governor, Stephen Roe Lewis, wrote to state water managers about the bill. “After all our hard work together, I am sorry that we are being put in this position, but this bill, introduced without warning and without discussion with (Gila River), represents a clear threat to our water settlement rights,” he wrote. Bowers did not respond to requests for comment from High Country News, and, in a statement, the Central Arizona Project reiterated their commitment to passing Arizona’s implementation plan.

In theory, tribal water rights are some of the most dominant in the West. The Supreme Court determined in 1908 that when the United States created Indian reservations, they implied the existence of enough water for tribal members and irrigated farmland. But, unlike the Gila River Indian Community, many tribes’ rights aren’t quantified, making it easy for non-Native users to drink, bathe and farm with tribal water.  

The Tribal Water Study, released in December by the Bureau of Reclamation and the Ten Tribes Partnership, aimed to gather data about how tribal water rights are used in the Colorado River Basin. It found that many water claims for Basin tribes, totaling millions of acre-feet, are unresolved, preventing the resource from reaching its rightful consumers. Settling those rights would manifest a long-held legal right that could also help rehabilitate tribal communities. “Water is only one factor in this economic disparity,” the study reads, “but when thousands of residents on tribal lands lack access to clean water and adequate sanitation, the path out of poverty is more difficult.”

T. Daryl Vigil, the water administrator for the Jicarilla Apache Nation and spokesperson for the Ten Tribes Partnership, described the high stakes of tribal water involvement. “If we’re going to be sovereigns, or act like them, then we really do have the opportunity to create what our future looks like,” he said. “The study was part of that process: Who are we going to be in the process of saving, or bringing back to life and creating balance, in the Colorado River?”

As the West’s struggle with drought deepens, tribes stand to act as influential parties in drought negotiations — or exit them, as the Gila River Indian Community has threatened, to protect what is theirs.

As Arizona stares down the Drought Contingency Plan deadline, the potential absence of the Gila River Indian Community’s contribution is a glaring empty space. Despite Lewis’s warning, Bowers told the Arizona Capitol Times that he won’t budge on his bill. “I’m not going to back down,” he said, while also acknowledging that it will “really mess it up” if the Community backs out. If it happens, he said, he’ll just have to find that water “somewhere else.” 

“No, no,” Ferris said in response to the idea. “There isn’t water anywhere else.”

Note: This article has been updated to reflect that the farmers receiving water through the Arizona implementation of the Drought Contingency Plan are in Pinal County, not the Safford Valley. We regret the error.

Elena Saavedra Buckley is an editorial fellow at High Country News. Email her at [email protected] or submit a letter to the editor

High Country News Classifieds
  • MEMBERSHIP MANAGER
    For more information visit www. wyofile.com/careers/
  • THRIVING LOCAL HEALTH FOOD STORE FOR SALE
    Turn-key business opportunity. Successful well established business with room to grow. Excellent highway visibility.
  • DEVELOPMENT DIRECTOR
    For more information, visit www.wyofile.com/careers/
  • SONORAN INSTITUTE, CEO
    Chief Executive Officer Tucson, Arizona ABOUT SONORAN INSTITUTE Since 1990, the Sonoran Institute has brought together diverse interests to successfully forge effective and enduring conservation...
  • STAFF ATTORNEY
    STAFF ATTORNEY POSITION OPENING www.westernlaw.org/about-us/clinic-interns-careers The Western Environmental Law Center (WELC) is a high-impact, nonprofit public interest environmental law firm with a 27-year legacy using...
  • PROJECT MANAGER
    Position Summary Join our Team at the New Mexico Land Conservancy! We're seeking a Project Manager who will work to protect land and water across...
  • SEEKING PROPERTY FOR BISON HERD
    Seeking additional properties for a herd of 1,000 AUM minimum. Interested in partnering with landowners looking to engage in commercial and/or conservation bison ranching. Location...
  • DIRECTOR OF PRODUCT AND MARKETING
    High Country News seeks a Director of Product and Marketing to join our senior team during an exciting chapter of innovation and growth. This individual...
  • WILDLIFE HAVEN
    Beautiful acreage with Teton Creek flowing through it. Springs and ponds, lots of trees, moose and deer. Property has barn. Easy access. approx. 33 acres.
  • ARIZONA CONSERVATION CORPS PROGRAM DIRECTOR
    Arizona Conservation Corps is seeking a Program Director in Flagstaff or Tucson
  • COPPER STAIN: ASARCO'S LEGACY IN EL PASO
    Tales from scores of ex-employees unearth the human costs of an economy that runs on copper.
  • EXPERT LAND STEWART
    Available for site conservator, property manager. View resume at http://skills.ojadigital.net.
  • CONSERVATIONIST? IRRIGABLE LAND?
    Stellar seed-saving NGO is available to serious partner. Package must include financial support. Details: http://seeds.ojaidigital.net.
  • CANYONLANDS FIELD INSTITUTE
    Colorado Plateau Natural & Human History Field Seminars. Lodge, river, hiking options. Small groups, guest experts.
  • WESTERN NATIVE SEED
    Specializing in native seeds and seed mixes for western states.
  • CHUCK BURR'S CULTUREQUAKE.COM BLOG
    Change will happen when we see a new way of living. Thinking to save the world.
  • COMING TO TUCSON?
    Popular vacation house, furnished, 2 bed/1 bath, yard, dog-friendly. Lee at [email protected] or 520-791-9246.
  • OJO CALIENTE COMMERCIAL VENTURE
    Outstanding location near the world famous Ojo Caliente Mineral Spring Resort. Classic adobe Mercantile complete w/living quarters, separate 6 unit B&B, metal building and spacious...