Winters and Water Conservation: A Proposal to Halt "Water Laundering" in Tribal Negotiated Settlements in Favor of Monetary Compensation
By Jesse Harlan Alderman
INTRODUCTION
In 2010, a new pumping station on the Animas River nearly filled to capacity a 120,000 acre-foot reservoir above Durango, Colorado. The reservoir is the culmination of twenty years of negotiation, more than $200 million in cost overruns, and what some have called the U.S. Bureau of Reclamation's last big water project. The largesse of a century of water diversion and dam-building in the West has come to a close, and as such, there is little political appetite, capital, and most importantly, available surface water remaining for large reclamation projects. The Colorado water delivery system, called the Animas-La Plata Project, and its major financial commitment from the federal government would never have become reality without Indian tribes. The project was the linchpin of an agreement to settle the senior water rights claims of the Colorado Ute tribes. However, more than thirty-five percent of the water diverted by the project is directly delivered to slake the thirst of fast-growing desert municipalities in southwestern Colorado and northern New Mexico. Moreover, the settlement, as approved by Congress, waives federal law barring Indian tribes from alienating proprietary interests off-reservation. In all likelihood the Colorado Ute tribes will simply market the water to municipalities, power plants, or other industries that feed the urban growth of the dry Interior West. Questions remain as to whether the settlement of the reserved water rights claims benefits Indians any more than traditional water appropriators, and whether the otherwise unpalatable water project was simply wrapped in an Indian blanket to “launder” water through the tribes.
The arid West is under great strain from the unchecked population growth of the past several decades. Excess appropriation of surface waters and overdraft of groundwater in the urban oases of America's deserts and canyon lands are threatening of an environmental and public health catastrophe. While energy production, wastewater treatment, and other water-intensive processes degrade the quality of scarce water, climate change further drains the few arteries of freshwater that support life in this harsh, dry environment. In Arizona, California, Nevada, New Mexico, and Utah - states that are perennially among the fastest growing in the county - water drawn from groundwater aquifers or allocated under the appropriation scheme set forth in the Colorado River Compact accounts for more than 50 percent of annual water use. Arizona, where the current population of 6 million is expected to near 11 million by 2030, groundwater plus Colorado River water accounts for about 90 percent of current use. Arizona has projected an unmet demand of 1 million to 1.6 million acre feet of water per year in 2035. In these states, annual water consumption already outstrips the amount replenished to surface waters or recharged to underground aquifers by rainfall and snowmelt. Population growth and climate change have added more consumers and a persistent drought to the already untenable imbalance of supply and demand. A recent study, forecasting the 100 year water supply in the Southwest based on multiple models of climate change and population growth, predicted that the Southwest's water shortfall in the year 2110 would reach as much as 2,253,000 acre feet. The states have few options other than conservation, as proposed futuristic remedies such as desalinization and cloud seeding are currently financially unpalatable.
This region may be at a tipping point, and it is also home to the largest concentration of Indian reservations in the country. Under Winters v. United States, these Indian tribes own water rights senior to nearly all other appropriators, and most of these rights remain entirely inchoate. This ““cloud” cast by Winters threatens to displace junior appropriators--big cities, utilities, farmers, ranchers, and industries alike-- or worse, encourage settlements, like the Colorado Ute contract, that demand federal investment in a new round of wasteful water projects. This Article argues that in a region nearing the carrying capacity of available water, and with demonstrable overdraft of the underground water table, Indian tribes should not pursue the costly and unfulfilling strategy of litigating their water rights claims or reaching unfair negotiated settlements in which they become a “fence” to launder otherwise unavailable water. The federal government, as trustee of all Indian assets including water, pursued a relentless century-long policy of investing billions in reclamation projects for the exclusive benefit of non-Indians. Therefore, tribes should seek compensation from the federal fiduciary for breach of its trust obligations. This option increases the potential payout to tribes, without subjecting them to hostile state courts, unfavorable case law, or negotiated settlements that continue the trend of benefitting junior appropriators. In short, a suit for breach of fiduciary duty is the soundest and most sustainable policy option for Indians to realize compensation for their long-unrealized senior water rights.
Part I of this Article offers a brief summary of water law doctrines, while Part II discusses the seminal Winters case, its progeny, and the evolution of Indian reserved water rights. Part III includes an exposition of the trust relationship between Indian tribes and federal fiduciary, particularly as it relates to the mismanagement of reserved water rights. Part IV describes the increasingly common practice of settling tribal reserved water rights through negotiated settlements with states and other stakeholders. This Part also discusses three illustrative settlements involving the Colorado Ute tribes, and the Ak-Chin and Tohono O'odam tribes in central Arizona, with an emphasis on off-reservation water marketing provisions. Finally, Part V argues that tribes should seek compensation for breach of fiduciary duty arising from federal neglect of their Winters rights, preferably as a class action lawsuit modeled on the successfulCobell litigation.
In 2010, a new pumping station on the Animas River nearly filled to capacity a 120,000 acre-foot reservoir above Durango, Colorado. The reservoir is the culmination of twenty years of negotiation, more than $200 million in cost overruns, and what some have called the U.S. Bureau of Reclamation's last big water project. The largesse of a century of water diversion and dam-building in the West has come to a close, and as such, there is little political appetite, capital, and most importantly, available surface water remaining for large reclamation projects. The Colorado water delivery system, called the Animas-La Plata Project, and its major financial commitment from the federal government would never have become reality without Indian tribes. The project was the linchpin of an agreement to settle the senior water rights claims of the Colorado Ute tribes. However, more than thirty-five percent of the water diverted by the project is directly delivered to slake the thirst of fast-growing desert municipalities in southwestern Colorado and northern New Mexico. Moreover, the settlement, as approved by Congress, waives federal law barring Indian tribes from alienating proprietary interests off-reservation. In all likelihood the Colorado Ute tribes will simply market the water to municipalities, power plants, or other industries that feed the urban growth of the dry Interior West. Questions remain as to whether the settlement of the reserved water rights claims benefits Indians any more than traditional water appropriators, and whether the otherwise unpalatable water project was simply wrapped in an Indian blanket to “launder” water through the tribes.
The arid West is under great strain from the unchecked population growth of the past several decades. Excess appropriation of surface waters and overdraft of groundwater in the urban oases of America's deserts and canyon lands are threatening of an environmental and public health catastrophe. While energy production, wastewater treatment, and other water-intensive processes degrade the quality of scarce water, climate change further drains the few arteries of freshwater that support life in this harsh, dry environment. In Arizona, California, Nevada, New Mexico, and Utah - states that are perennially among the fastest growing in the county - water drawn from groundwater aquifers or allocated under the appropriation scheme set forth in the Colorado River Compact accounts for more than 50 percent of annual water use. Arizona, where the current population of 6 million is expected to near 11 million by 2030, groundwater plus Colorado River water accounts for about 90 percent of current use. Arizona has projected an unmet demand of 1 million to 1.6 million acre feet of water per year in 2035. In these states, annual water consumption already outstrips the amount replenished to surface waters or recharged to underground aquifers by rainfall and snowmelt. Population growth and climate change have added more consumers and a persistent drought to the already untenable imbalance of supply and demand. A recent study, forecasting the 100 year water supply in the Southwest based on multiple models of climate change and population growth, predicted that the Southwest's water shortfall in the year 2110 would reach as much as 2,253,000 acre feet. The states have few options other than conservation, as proposed futuristic remedies such as desalinization and cloud seeding are currently financially unpalatable.
This region may be at a tipping point, and it is also home to the largest concentration of Indian reservations in the country. Under Winters v. United States, these Indian tribes own water rights senior to nearly all other appropriators, and most of these rights remain entirely inchoate. This ““cloud” cast by Winters threatens to displace junior appropriators--big cities, utilities, farmers, ranchers, and industries alike-- or worse, encourage settlements, like the Colorado Ute contract, that demand federal investment in a new round of wasteful water projects. This Article argues that in a region nearing the carrying capacity of available water, and with demonstrable overdraft of the underground water table, Indian tribes should not pursue the costly and unfulfilling strategy of litigating their water rights claims or reaching unfair negotiated settlements in which they become a “fence” to launder otherwise unavailable water. The federal government, as trustee of all Indian assets including water, pursued a relentless century-long policy of investing billions in reclamation projects for the exclusive benefit of non-Indians. Therefore, tribes should seek compensation from the federal fiduciary for breach of its trust obligations. This option increases the potential payout to tribes, without subjecting them to hostile state courts, unfavorable case law, or negotiated settlements that continue the trend of benefitting junior appropriators. In short, a suit for breach of fiduciary duty is the soundest and most sustainable policy option for Indians to realize compensation for their long-unrealized senior water rights.
Part I of this Article offers a brief summary of water law doctrines, while Part II discusses the seminal Winters case, its progeny, and the evolution of Indian reserved water rights. Part III includes an exposition of the trust relationship between Indian tribes and federal fiduciary, particularly as it relates to the mismanagement of reserved water rights. Part IV describes the increasingly common practice of settling tribal reserved water rights through negotiated settlements with states and other stakeholders. This Part also discusses three illustrative settlements involving the Colorado Ute tribes, and the Ak-Chin and Tohono O'odam tribes in central Arizona, with an emphasis on off-reservation water marketing provisions. Finally, Part V argues that tribes should seek compensation for breach of fiduciary duty arising from federal neglect of their Winters rights, preferably as a class action lawsuit modeled on the successfulCobell litigation.
