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Tag: Colorado

  • The Forgotten Sovereigns of the Colorado River

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    The resulting report confirmed much of what tribes had complained about for decades: unfinished infrastructure projects that had been promised long ago as part of federal settlements, onerous restrictions on where and how tribes could put their water to use, and some 500,000 acre-feet a year that flowed down the river without compensation. Historically, tribes pursued settlements independently. “If you know one tribe, you know one tribe,” goes an axiom Vigil and others often repeat in relation to tribal water rights. But the tribal water study also underscored the consequences of their common history: There’s a difference between having a legal right to water and having a foothold in the federal apparatus that actually manages the river.

    In 2019, nearly two decades into the megadrought affecting the Southwest, the seven Colorado River states adopted a drought contingency plan overseen by the Bureau of Reclamation to manage the changing hydrology on the river. In the years since, users in the lower basin and Mexico have had their water allotments cut by close to 1 million acre-feet, a more than 10 percent reduction.

    Earlier this year, as the seven basin states scrambled to come up with a compromise to cut their 2023 allocations by a further 2 million acre-feet, Amelia Flores was working with partners in the state and federal government toward another milestone. Flores is chair of the Colorado River Indian Tribes, whose lands straddle the river on the California-Arizona border. For more than 20 years, CRIT’s leaders had been pushing for legislation that would allow the tribes to lease some of their water to users outside the reservation. With senior rights to more than 700,000 acre-feet a year, CRIT is one of the largest rights holders in the basin, providing water both to commercial farmers who lease tribal land — this part of the Southwest grows the bulk of the country’s winter vegetables — and to blunt the impact of shortages across in the system. Since 2016, through agreements with the federal Bureau of Reclamation, CRIT has fallowed enough farmland to leave 200,000 acre-feet of water in Lake Mead, preventing the reservoir’s levels from dropping even faster toward the critical “dead pool” level where power cannot be generated.

    On Jan. 5, President Joe Biden signed legislation freeing the tribe to lease its water to users outside the reservation for the first time. But even as the tribe pushed that bill over the line, it wasn’t party to negotiations among the states about the shape of future cuts. As the tribe’s longtime attorney, Margaret Vick, explained recently in a joint phone interview with Flores, allowing tribal participation in those talks wouldn’t require an act of Congress. “What that would require is a phone call,” Vick said.

    When the Bureau of Reclamation’s Feb. 1 deadline arrived without a deal, news outlets around the country reported on the proposal that came closest to consensus: Every state but California signed onto an arrangement that would leave the Golden State, which receives some 4.4 million acre-feet, by far the largest share of Colorado River water, to absorb the bulk of the cuts. To Flores’ surprise, the deal also called for CRIT to give up 45,000 acre-feet without compensation. Asked whether she’d had any prior notice from Arizona or its counterparts, Flores was blunt: “None, zero.” For the Colorado River Indian Tribes, the river is both the center of a sacred homeland and the backbone of government services: Agriculture represents about 80 percent of the tribal government’s revenue. Uncompensated water cuts could affect everything from health care to college scholarships for tribal members.

    “Still to this day we don’t believe states really understand the dynamics of tribal water rights,” Flores said. “We need to be at the table.”

    This dynamic is felt most acutely in Arizona, home to 22 tribes with claims to Colorado River water. When I asked Tom Buschatzke, director of the state’s water resources department, about negotiations with tribes, he touted a state program established in 2004 to buy farmland and leave it fallow in order to create a pool of Colorado River water rights the government could assign to future tribal settlements. Unfortunately, he explained, two decades on, most of that theoretical pool of water has literally evaporated with the changing hydrology of the river.

    “That makes it difficult to push forward with settlements,” Buschatzke said. “I’m not going to offer a tribe something that would only be there 5 percent of the time.” There is, of course, a more reliable pool to draw from — the water that already flushes the toilets and irrigates the golf courses of Arizona’s cities and towns — but what Arizona politician is going to propose giving tribes that water?

    “Wow,” Vigil says. “There’s an opportunity to start thinking about how we feed ourselves, where we feed ourselves and all those kind of things, and that’s one of the things that’s missing.”

    About 70 percent of the basin’s water is allocated to agriculture, mostly to feed cattle. “And there is no structured place that I know of where those conversations are being had. Seventy percent of the water is [for] agriculture!” he repeated. “How are we not talking about that?”

    While indigenous people have held a variety of top posts at Interior Department agencies going back 20 years or more, Biden’s appointment of Deb Haaland, the first Native American secretary of the Interior, signaled a commitment to Native points of view in the upper echelons of power at the White House. It did not take long for tribes to be disappointed. In late 2021, Vigil coordinated an effort that saw the leaders of 20 tribal nations sign a letter to Haaland, outlining a list of shared demands of federal officials, including a framework for leasing privileges similar to those won by CRIT. Haaland held a listening session with the signatories the following spring, one of “more than a dozen meetings” an Interior Department spokesperson highlighted of the government’s commitment to “robust consultation” with tribes. But to Vigil, it was part of a familiar pattern: Federal agencies seem always willing to talk but never to respond to specific demands.

    This past February, federal officials announced the states had missed a second deadline to make further cuts, totaling 2 million to 4 million acre-feet, and that the Bureau of Reclamation would have to make the decision instead. In April, the Biden administration sketched out its plan to meet that target, setting aside distinctions between “senior” and “junior” rights holders, and asking California, Arizona and Nevada to reduce Colorado River water usage across the board by an additional 25 percent.

    To avoid the bruising politics of choosing California alfalfa over Arizona subdivisions, the administration’s proposal put cities and towns with water rights dating to the 1960s on the same footing as irrigation districts with claims dating back to the 19th century. Settled tribal rights, too, would have to flow from the same bucket. But the threat of federal officials unilaterally imposing reductions on the states for the first time in history was finally enough to compel broader agreement. With the help of a wet winter and $1.2 billion in federal funds, Arizona, California and Nevada have agreed to cuts of roughly 13 percent across the lower basin, enough to stave off the immediate crisis. The plan is expected to gain final federal approval, but it will not materially change the role of tribes in future negotiations.

    When I asked Vigil if he felt he’d seen any significant inflection points in tribal participation in the river’s governance after 15 years of advocacy, there was a long pause. Finally, he said, “You know the reason why that’s a tough question? Because nothing has really changed. We don’t have a formal place in the policymaking process. … And until that happens, that means our sovereignty is not being fully recognized.”

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    ( With inputs from : www.politico.com )

  • Biden admin sidesteps painful decisions for Colorado River cuts

    Biden admin sidesteps painful decisions for Colorado River cuts

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    In an interview, Deputy Interior Secretary Tommy Beaudreau told POLITICO that the department’s current approach is aimed not just at equipping the department to act unilaterally if needed, but also providing “markers” to states as they negotiate.

    “I really do think there is unity in the basin to continue and strive for a consensus approach to maintaining the system,” he said.

    During an event overlooking the Hoover Dam Tuesday where Interior announced the move, state negotiators expressed a renewed commitment to those talks, with a California representative saying that “ideally” a seven-state deal could be reached within a month and a half.

    Tom Buschatzke, Arizona’s lead negotiator, noted that some of the options at Interior’s disposal could lead to litigation, which could freeze negotiations and tie water managers’ hands at a time of crisis.

    “Instead, let us accelerate our discussions in the basin for a collaborative, consensus-based outcome,” he said.

    The Colorado River is in the midst of a 23-year drought that has shriveled flows by 20 percent, and hotter, drier conditions fueled by climate change are expected reduce supplies even more in the coming years as the planet continues to warm. But thirsty farms and cities in California and Arizona have continued using water at rates far greater than the volumes flowing in the river, draining the two main reservoirs at Lake Mead and Lake Powell to the point that they are now about only about a quarter full. While a strong snowpack this winter has forestalled the crisis for now, Beaudreau argued that the federal government needs to be prepared to act if dry conditions push the system to the brink of crisis again in the next few years.

    Last fall, federal projections showed that water levels at Glen Canyon Dam, just upstream of Grand Canyon National Park, could fall so low by the end of this year that it would halt hydropower production that is central to the stability of the Western grid and threaten the ability to make downstream water deliveries to Nevada, Arizona and California.

    The Biden administration at the time called for the states to craft a plan to cut consumption by as much as a third of the river’s flows, and it launched an environmental review process to shore up its legal authorities to act unilaterally if the states remained at loggerheads. The Interior Department’s new draft version of the environmental analysis released Tuesday laid out a series of options it could take for heading off a crisis.

    But rather than provide a clear roadmap of what Interior would do if it must step in, the department instead analyzed variations of the two competing proposals put forth by the states, as well as a scenario in which no reductions are made and reservoir levels fall precipitously.

    One of the action options, similar to the approach backed by California, would have Interior impose water cuts using the century-old legal framework that governs the river, which cuts off newer water users entirely before senior users — mostly farmers and ranchers — see any reductions.

    Another option hews to the spirit of a proposal backed by Arizona and the five other states that share the river, spreading the cuts more equitably across all water users. But, whereas the states’ proposal had done so by taxing users for water that evaporates from reservoirs and leaks from canals, Interior’s proposal would do so using legal authorities it has for protecting human health and safety, ensuring water is being put to “beneficial use” and acting in an emergency.

    John Fleck, a Colorado River expert at the University of New Mexico, said that by avoiding picking sides, Interior’s approach could give it leverage over both sides in negotiations.

    “It leaves space for productive negotiations, and now that we have a good snowpack, we have some room for the possibility of those productive negotiations to happen,” he said.

    But Interior officials also made clear they are prepared to step in if necessary.

    “It is our hope and our fervent desire that the tools laid out in the supplemental [environmental impact statement] never have to be used,” Beaudreau said, citing optimism for the negotiations. “At the end of the day, though, it’s the Secretary’s responsibility to keep this system operating and continue providing services. And we’re going to protect those minimum critical levels at both Powell and Mead in order to accomplish that.”

    The current process is part of a short-term effort to avoid a crisis on the river in the next few years, while the states begin negotiating a longer-term set of rules to govern the river that must be in place by 2026.

    The Biden administration is also seeking to win as many voluntary reductions as possible using new funding from the bipartisan infrastructure law and Inflation Reduction Act. Last week, Interior officials blitzed the region, announcing hundreds of millions of dollars’ worth of investments in conservation deals and infrastructure upgrades.

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    ( With inputs from : www.politico.com )

  • Shrinking Colorado River hands Biden his first climate brawl

    Shrinking Colorado River hands Biden his first climate brawl

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    The current feud centers on California, a longtime Democratic stronghold, and Arizona, a newfound swing state that has proven crucial to the party’s control of the White House and Senate.

    The 1,450-mile long Colorado River made much of the West inhabitable, and now supplies water to 40 million Americans from Wyoming to the border with Mexico, as well as an enormously productive agricultural industry. But climate change has shriveled its flows by 20 percent over the past two decades, and for each additional degree of warming, scientists predict the river will shrink another 9 percent.

    Water levels at the system’s two main reservoirs are falling so fast, the Interior Department has said that water users must cut consumption by as much as a third of the river’s flows or risk a collapse that could cripple their ability to deliver water out of those dams. That would also cut off hydropower production that is crucial to the stability of the Western grid.

    The states broadly agree that the vast majority of those immediate cuts must be made by the Lower Basin states of Arizona, California and Nevada, whose decades of overuse have accelerated the crisis. But the fight is over whether California, which holds strong legal rights to the lion’s share of the Lower Basin’s water, should have to share in those reductions.

    This week, six of the seven states along the river asked the Biden administration to spread the cuts among the Lower Basin’s water users. They argued, in effect, that climate change has so fundamentally altered the waterway that the century-old legal system governing who must sacrifice in times of shortage should not be the final word in how those cuts are divvied up.

    But California, whose major agricultural regions would be among the last to take cuts under the existing rules, is refusing to budge from its legal claim. Its rival proposal for apportioning the pain would almost entirely cut off Colorado River deliveries to Phoenix, Tucson and the 11 Native American tribes getting water from central Arizona’s primary canal before California’s agricultural users would face any mandatory cuts.

    “We agree there needs to be reduced use in the Lower Basin, but that can’t be done by just completely ignoring and sidestepping federal law,” said J.B. Hamby, who leads the Colorado River Board of California and serves on the board of the state’s biggest user of the river’s water, the Imperial Irrigation District.

    But Tom Buschatzke, director of Arizona’s Department of Water Resources, argued that his state agreed to take junior rights to river water back in 1968, before climate change was known to be a factor in shrinking the river’s flow.

    “Why should Arizona in the Lower Basin take the entire cost of climate change changes to the river?” he asked.

    The state-level politics, alone, are a disaster for a Democratic administration.

    On one side of the fight is the most populous state in the country with a $3.4 trillion economy, fueled in large part by its powerhouse agricultural sector. A Democratic stronghold run by a governor with his own presidential ambitions, California has also enacted some of the most aggressive climate mitigation policies in the country.

    On the other side is Arizona — a swing state on which Democrats’ national electoral fate could turn — joined by every other state in the river basin.

    And while the immediate fight is centered on Arizona and California, the Upper Basin states of Wyoming, Colorado, Utah and New Mexico, which backed Arizona’s approach, have their own interest in moving toward a more flexible interpretation of century-old water rules. Climate change is expected to soon make it impossible for them to deliver the legally required amount of water to the Lower Basin without draconian cuts to their own cities and tribes — an even bigger brawl that will have to be fought out in the next two years.

    But within each state, the fault lines aren’t always clear. Since Western water law allows whoever claimed the water first to be first in line, agricultural users often hold some of the strongest rights, whereas cities and suburbs are almost always the first to take cuts.

    Meanwhile, notably absent from the dueling proposals were any of the 29 tribes that reside within the river basin, and whose interests the Biden administration has vowed to be particularly attentive to. They haven’t been in the room for negotiations involving the states and the federal government.

    Tribal interests on the river are also complex and competing: The Gila River Indian Community, whose ancestors farmed with Colorado River water for millennia, are among those most vulnerable to cuts under the priority approach backed by California. But the Colorado River Indian Tribes hold senior rights decreed by the Supreme Court that align their interests with the Golden State’s approach.

    Environmentalists are also likely to enter the fight soon, with the fate of nearly three dozen endangered species hanging on the line and a risk that the Grand Canyon could one day have no river running through it.

    Adding to the pressure on the Biden administration is the fact that lawmakers on Capitol Hill are increasingly jumping into the fray.

    Arizona Democratic Sen. Mark Kelly won reelection last fall in one of the most competitive Senate races in the country after staking out an aggressive position defending his state’s Colorado River water interests — and fighting California’s. And a bipartisan group of lawmakers from Arizona and Nevada this week wrote Biden to endorse their states’ “consensus” proposal, calling it “a roadmap to avoid devastating economic impacts while sharing in the sacrifice of adapting to a permanently reduced water supply.”

    But California’s Democratic Sens. Dianne Feinstein and Alex Padilla shot back in a statement contending that “six other Western states dictating how much water California must give up simply isn’t a genuine consensus solution.” Feinstein has for years wielded intense power over Western water issues on Capitol Hill and chairs the appropriations panel overseeing water funding.

    The Biden administration won’t have to make any tough decision on who wins and who loses just yet, though. First, the Interior Department will need to publicly lay out exactly what effect the competing approaches would mean to communities and ecosystems across the West if the next few years turn out to be dry ones.

    The analysis is part of the National Environmental Policy Act process that Interior’s Bureau of Reclamation launched in October to give itself legal cover if the states can’t reach agreement among themselves and the Biden administration decides it must act unilaterally — which it has indicated it could do as soon as this summer.

    “The Department remains committed to pursuing a collaborative and consensus-based approach, and ongoing conversations with the Basin states, Tribes, water managers, farmers, irrigators and other stakeholders are helping to inform the supplemental process to revise the current interim operating guidelines for the operation of Glen Canyon and Hoover Dams,” Interior spokesperson Tyler Cherry said by email.

    Some of the state negotiators think this process of publicly detailing the exact risks and costs to communities of the two competing concepts could help energize the negotiations among the states.

    If the analysis of California’s proposal shows the result would be “drying up the Central Arizona Project [and] major metropolitan areas and taking all of the water away from native American tribes, I think the choices will become really stark,” said John Entsminger, Nevada’s top Colorado River negotiator.

    “I definitely think there’s still a chance for a seven-state agreement, and I think the modeling outputs that are going to be public could be very helpful for helping drive some form of compromise,” he said.

    Regardless of how the negotiations turn out and what Interior decides, many legal experts expect the fight to ultimately land in court.

    “No matter what that decision is, one or more of the states is going to sue the Bureau of Reclamation and we’re going to have to work this out through litigation,” said Rhett Larson, who teaches water law at the Arizona State University and has worked on water rights issues along the Colorado River.

    But while a legal battle may be the only way to resolve some of the longstanding conflicts among the river’s users, it could also slow down the federal government’s ability to respond to a fast-evolving crisis on the Colorado River.

    Even more concerning to federal, state and local water managers is the risk that a court decision, particularly from the conservative supermajority on the Supreme Court, could end up curtailing the federal government’s broad authorities to manage not just the Colorado River, but waterways across the West. This would be occurring at a time when climate change requires flexibility to adapt to hydrologic systems that are evolving in unprecedented and unpredictable ways.

    “The court could impose real limits on its ability to adapt existing laws to hydrologic and climatologic realities,” Larson said. “That’s something that the Bureau of Reclamation doesn’t want to do for practical reasons — climate change is changing our hydrologic systems and we need to be able to adapt it — and also for institutional reasons. No one likes to give up power.”

    Reporter Camille von Kaenel contributed to this report.

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    ( With inputs from : www.politico.com )

  • Biden administration is caught between California and its neighbors in Colorado River fight

    Biden administration is caught between California and its neighbors in Colorado River fight

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    “The states are not going to reach an agreement. We are just too far apart,” said Rep. Greg Stanton (D-Ariz.), who represents the Phoenix area. “Now is the time that we need this administration to come up with a solution to this dilemma, and we need it now.”

    California is insisting on its legal claims under a compact dating back to 1922 as the river faces unprecedented strain because of climate change and population growth in the Southwest. The standoff thrusts the Biden administration into the position of deciding how to resolve competing claims on water shared among 40 million people from Wyoming to Mexico.

    The Interior Department, which asked the states to come up with a joint plan to reduce use by roughly 30 percent, is expected to impose cuts as early as this summer.

    On one side are six states, including Arizona and Nevada, where growing cities such as Las Vegas and Phoenix are in an existential battle to avoid exhausting their supplies from the Colorado River. On the other is California, where farmers could go to the courts to protect their water rights.

    Decisions taken by California in this most sensitive of battles could one day hurt Gov. Gavin Newsom if he runs for president and needs political support in Nevada and Arizona, two battleground states.

    A bipartisan group of Western representatives, excluding officials from California, urged President Joe Biden to support the proposal offered by the six states in a letter Wednesday morning.

    California Natural Resources Secretary Wade Crowfoot, a Newsom appointee, as well as the state’s two senators have criticized the six-state plan, saying it would disproportionately burden California cities and farmers.

    Western senators are planning to meet to discuss the issue Thursday.

    The Interior Department is keeping up talks with states and tribes and wants “as much support and consensus as possible,” said a spokesperson on Wednesday.

    The proposal from the six states would impose additional cuts to every user, including California and Mexico.

    Their plan relies on a new tool to preserve some water for Arizona and Nevada users by accounting for evaporation and leaks along the river as it flows downstream to California.

    That infuriated California’s farmers, who see the concept as a way to cut into their legal claims to the water.

    Instead, California’s proposal would alter operations at the river’s two main dams, forcing states to take modest cuts to which they’ve already agreed. If that’s not enough it would then force cuts using the priority system, effectively drying out central Arizona cities and tribes before the Golden State takes additional mandatory cuts.

    “We agree there needs to be reduced use in the Lower Basin, but that can’t be done by just completely ignoring and sidestepping federal law,” said J.B. Hamby, the chair of the Colorado River Board of California and an Imperial Irrigation District director.

    California, he said, already volunteered additional reductions back in October to ease the burden on other states.

    The Interior Department said it plans to release a draft analysis of the options it is considering this spring. It could step in as soon as this summer to slash deliveries.

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    ( With inputs from : www.politico.com )

  • Colorado baker loses appeal over transgender birthday cake

    Colorado baker loses appeal over transgender birthday cake

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    supreme court wedding cake case 25958

    Relying on the findings of a Denver judge in a 2021 trial in the dispute, the appeals court said Phillips’ shop initially agreed to make the cake but then refused after Scardina explained that she was going to use it to celebrate her transition from male to female.

    “We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker,” said the court, which also rejected procedural arguments from Phillips.

    Phillips, who is represented by Alliance Defending Freedom, maintains that the cakes he creates are a form of speech and plans to appeal.

    “One need not agree with Jack’s views to agree that all Americans should be free to say what they believe, even if the government disagrees with those beliefs,” ADF senior counsel Jake Warner said in a statement.

    John McHugh, one of the lawyers who represent Scardina, said the court looked carefully at all the arguments and evidence from the trial.

    “They just object to the idea of Ms. Scardina wanting a birthday cake that reflects her status as a transgender woman because they object to the existence of transgender people,” he said of Phillips and his shop.

    In 2018, the U.S. Supreme Court ruled that the Colorado Civil Rights Commission had acted with anti-religious bias in enforcing the anti-discrimination law against Phillips after he refused to bake a cake celebrating the wedding of Charlie Craig and Dave Mullins in 2012. The justices called the commission unfairly dismissive of Phillips’ religious beliefs.

    The high court did not rule then on the larger issue of whether a business can invoke religious objections to refuse service to LGBTQ people, but it has another chance to do so.

    Last year it heard another case challenging Colorado’s anti-discrimination law, brought by a Christian graphic artist who does not want to design wedding websites for same-sex couples. Lorie Smith, who is also represented by ADF, claims the law violates her freedom of speech.

    Scardina, an attorney, attempted to order her cake on the same day in 2017 that the Supreme Court announced it would hear Phillips’ appeal in the wedding cake case. During trial, she testified that she wanted to “challenge the veracity” of Phillips’ statements that he would serve LGBTQ customers.

    Before filing her lawsuit, Scardina first filed a complaint against Phillips with the state and the civil rights commission, which found probable cause that he had discriminated against her.

    Phillips then filed a federal lawsuit against Colorado, accusing it of a “crusade to crush” him by pursuing the complaint.

    In March 2019, lawyers for the state and Phillips agreed to drop both cases under a settlement Scardina was not involved in. She pursued the lawsuit against Phillips and Masterpiece on her own.

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    ( With inputs from : www.politico.com )