Colorado elected leaders this week rallied behind two tribal nations who are willing to forgo future water use in exchange for payment through a new federal conservation fund meant to address drought in the Colorado River Basin.
At issue is whether the tribes’ proposal is eligible for the funding under federal rules.
The Southern Ute and Ute Mountain Ute tribes would like funding for a program that pays tribes to save water by not developing it for future use. Federal officials say the tribes’ proposal doesn’t fit the parameters of the new conservation fund. This week, Colorado Gov. Jared Polis and U.S. Senators John Hickenlooper and Michael Bennet called on the U.S. Bureau of Reclamation to change its mind.
“We write to urge you to ensure that the Southern Ute Indian Tribe and Ute Mountain Ute Tribe have the opportunity to apply for funding programs that address drought and water supply management in the Colorado River Basin, including through upcoming drought mitigation funding under the Inflation Reduction Act,” the lawmakers wrote in a joint letter released Tuesday.
The funding in question, known as Bucket 2 Water Conservation or B2W for short, will focus on long-term projects that cut down on water use or demand for water. Water officials are already eyeing it while waiting to learn about application guidelines, like final eligibility rules.
It’s a much-anticipated addition to billions of taxpayer dollars that are already pouring into the West from big COVID-era programs, like the Inflation Reduction Act. Millions of dollars are filtering down to communities in the Colorado River Basin to help conserve water, upgrade water infrastructure, address drought impacts and restore ecosystems.
It’s the type of money that can make a water official’s long-held dreams come true.
Funding a forbearance program — a top priority for Southern Ute and Ute Mountain Ute officials — would incentivize tribes not to use or develop all their water rights.
The idea could help reduce future demand in an already overburdened river system, supporters say. But it runs counter to ongoing water conservation efforts, which have primarily called on irrigators to cut back on their existing water use.
Paying tribes, who already aren’t using water, to continue to not use it does not fit funding requirements, according to Reclamation. Conservation projects need to offer measurable, new additions to the amount of water flowing through rivers and streams in the Colorado River Basin, Reclamation said.
“A matter of fairness and justice”
Incentivizing tribes not to fully develop their water rights could have a big impact in the Colorado River Basin. The 30 federally recognized tribes within the basin have recognized rights to a total of about 26% of the river’s average flow.
But when programs, like the Bucket 2 conservation fund, require water to be used before it can be conserved, it poses a challenge for tribal nations across the Colorado River Basin.
About a dozen tribes are still trying to quantify their rights, a long legal process that must be completed before the water can be used. Others have quantified rights but lack the infrastructure to deliver water to homes, businesses and farms on tribal lands.
The Southern Ute and Ute Mountain Ute Tribes fall into the latter camp: Both tribes have the need for water, plans to use their water, and quantified rights to water held in Lake Nighthorse, a federal reservoir outside of Durango.
Neither tribe has put that water to use, citing expensive fees and the high costs of building new water infrastructure.
Until September, tribal officials thought they would be eligible for Bucket 2 funding to launch a compensated tribal forbearance program.
During the Colorado River District’s annual seminar in Grand Junction on Sept. 20, Southern Ute Vice Chair Lorelei Cloud shared Reclamation’s determination, just days prior, that the proposed program was not eligible for the upcoming round of conservation funding.
“We had something on the table until Wednesday when that changed,” Cloud told the room of water professionals. “Sorry, this is emotional to me, because we worked very hard so that we could get the compensation for our water.”
When unused water passes reservations, downstream water users have the option to get paid with federal money to forgo using what is, essentially, tribal water, said Peter Ortego, general counsel for the Ute Mountain Ute Tribe. But the tribes are not always able to participate in those same programs.
“It’s a matter of fairness and justice,” he said in a written statement.
Colorado officials weigh in
Reclamation officials say the upcoming round of conservation funding is limited by legal language in the Inflation Reduction Act that requires new, verifiable contributions to Colorado River system water. Tribal and nontribal projects that meet this standard are eligible, the agency said in a prepared statement Wednesday.
Hickenlooper, Bennet and Polis urged Reclamation to ensure the tribes could apply for the next round of funding.
The lawmakers stressed that, although Reclamation believes the forbearance program would not qualify, the lack of opportunity to develop water supplies does not equal a lack of demand, the letter said. They also urged Reclamation to consider other funding avenues for the tribes.
Colorado River Commissioner Becky Mitchell, Colorado’s top negotiator on river matters, also weighed in to support the tribes’ efforts.
“I continue to urge Reclamation to address this historic inequity and to identify a funding source for Tribal forbearance projects,” she said in a written statement.
If funding through the upcoming Bucket 2 Water Conservation Program isn’t an option, the Southern Ute Indian Tribe asked the Department of Interior, which houses the Bureau of Reclamation, to provide funding for a separate, standalone program.
“To rectify historical wrongs, the Tribe must be adequately compensated for its unused water, especially knowing that junior water users and the Colorado River system are being propped up by our unused water,” the tribe’s statement said.
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