Monday, May 29, 2023

At Last, Indigenous Demands for Water Rights Will Be Heard by Congress

Is the Diminished Colorado River Flow the Canary in the Coal Mine for the Rio Grande?


Lawsuits to secure water rights for the Pueblo and the Native Tribes have moved like molasses through the court system. Forty years since legal cases on these water rights began, legislation has finally been introduced in the U.S. Senate and House to approve some Pueblo water settlements. 

U.S. Senator Martin Heinrich (D-N.M.) and U.S. Representative Teresa Leger Fernández (D-N.M.) just introduced legislation to approve the water rights claims of the Pueblos of Acoma, Jemez, Laguna and Zia, and additional non-Tribal parties. U.S. Representative Melanie Stansbury (D-N.M.) cosponsored both bills.

“The Pueblos have been leading by example, revering water since time immemorial and the U.S. must honor its trust responsibilities and fulfill the agreements made to them to access and protect the state’s waters for the future,” Leger Fernández said.

In History, The Tribes and Pueblos Were Left Out

The Land of Enchantment’s hot sun, altitude and arid climate magnify the importance of water as a life-giving resource that must be protected and honored. Throw population growth, drought, climate change and water rights into the mix and all bets are off as to how much water New Mexico has to offer its inhabitants in any given month.

For millennia the Rio Grande supported the Native Tribes and Pueblos of the Southwest and sustained wildlife in the region. In the north, the Colorado River has done the same. The white settlers took over, and 100 years ago seven states signed The Colorado River Compact agreement dividing its waters. Sixteen years later in 1938, the interstate Rio Grande Compact that apportioned the waters of the Rio Grande Basin was signed among the states of Colorado, New Mexico and Texas. They left Native Tribes and Pueblos out of the equation.

The compacts over-allocated the river’s water and hung the Pueblos' and Tribal Nations' water rights out to dry for decades. While the compacts noted that Tribal rights predate all others, they forced individual Tribes and Pueblos to negotiate settlements or file lawsuits to quantify those rights, many of which are still unresolved.

At the time the compacts were signed, Native Americans were at survival-level conditions with government rations and just enough food or money to stay alive. They are more than ready for their water rights to stand up and be counted.

Water is a Human Right

New legislation will move New Mexico toward greater equity and water security for the Pueblos, Tribes, acequias and local communities.

“The U.S. government has a responsibility to make good on these legal commitments, and I am proud to introduce legislation to do just that. These bills will finally unlock critical water infrastructure funding from these settlements and ensure these Pueblos have the autonomy to ensure their communities can access the water they need,” Heinrich said.

Each Pueblo’s water rights would be held in trust by the U.S. and are not subject to loss through non-use, forfeiture or abandonment. The Pueblos have the authority to allocate, distribute and lease Pueblo water rights for use on Pueblo land. Subject to approval, the Pueblos can allocate, distribute and lease the Pueblo water rights for use off Pueblo land as well. Trust funds of $15-25 million would be created to facilitate these rights.

“These agreements settle long-standing water disputes before the courts and provide certainty for the four Pueblos and surrounding communities regarding their water future to better cope with persistent drought and the effects of the changing climate," New Mexico State Engineer Mike Hamman said.

The Source of the Jemez River: The Jemez Caldera  

“I am so pleased this finally happened in my lifetime,” said 87 year old Gilbert Sandoval, former acequia association president who has worked to resolve water rights issues over the past forty years.

The Jemez River Basin is the source of water for the Jemez, Zia and Santa Ana Pueblos that reside along the small Jemez River. The headwater/source area of Jemez River begins at the Jemez Caldera, a 13.7 mile wide volcanic caldera in the Jemez Mountains of northern New Mexico. For almost 40 years, these Pueblos have been involved in the Jemez River adjudication relating to that tributary.

The Pueblos of Jemez and Zia Water Rights Settlement Act, if passed by Congress, would approve their water rights claims along the Jemez River, and additional non-tribal parties, in a fund-based settlement for the Jemez River Stream.

“The settlement agreement is the product of years of negotiations and resolves a host of water-related issues that continued litigation of our water claims would not resolve,'' said Pueblo of Zia Governor Gabriel Galvan. “We hope that Congress will promptly consider and pass the settlement legislation.”

“This settlement will end decades of litigation in the Jemez Valley and provide much needed water supply for the Pueblos, acequias and other water users,” said Juanita Revak, president of the association of Jemez acequias that signed the settlement agreement.

Rio San José Stream. Sources: Rio Puerco, a Tributary of the Rio Grande

The Acoma and Laguna Pueblos Water Rights Settlement Act would approve the settlement of their water rights claims in the Rio San José Stream off of the Rio Puerco, a tributary of the Rio Grande.

“This legislation also rights some historical wrongs that we have experienced with the illegal appropriation of our water by upstream users. I am deeply appreciative of the efforts of the New Mexico delegation, and thankful for Senator Heinrich’s and Rep. Leger Fernandez’s lead sponsorship, along with the strong support of Rep. Stansbury, in moving this bill forward,” Pueblo of Acoma Governor Randall Vicente said.

“We thank Senator Heinrich and Congresswomen Leger Fernandez and [Rep.] Stansbury for their advocacy and leadership on this vitally important New Mexico issue,” said Pueblo of Laguna Governor Martin Kowemy Jr.

Questions Remain About Both Rivers

Today, the pressure on both the Colorado River and the Rio Grande is intense. The Southwest is reaching a crisis point. The population growth, the area around both these rivers and the climate have changed dramatically since the compacts were signed dividing up the expected yearly flows.

There does not seem to be an end in sight for the driest 22-year stretch of the Southwest’s historic and ongoing 1,200-year drought. New Mexico is really feeling the rainfall shortages because it does not have the big reservoirs of other states in the Colorado River Basin to fall back on. 

Albuquerque average annual rainfall is 9 inches. Santa Fe receives less than 15 inches. To put things into perspective – the state of Pennsylvania on the east coast receives 44 inches of rain, on average, per year. The US average is 38 inches of rain per year.  Colorado’s average rainfall is 17 inches while New Mexico averages 13.9 inches annually.

The Colorado River is drying up fast. The river's flow is down by about 20 percent compared to the 1900s and the two largest reservoirs it feeds are less than one-third full. Its fate could easily be the Rio Grande’s plight when the Rio Grande Compact turns 100. This summer, a stretch of the Middle Rio Grande in Albuquerque became puddles and then dried out for the first time in 40 years. As the mighty Rio Grande’s vital flow has become a fragile one, flows from the Colorado River have helped Albuquerque replenish its water basin.

Under the San Juan-Chama Project, a system of tunnels and dams at the New Mexico state line diverts water from the drainage basin of the San Juan River, a tributary of the Colorado River, to supplement water resources in the Rio Grande watershed. Albuquerque currently uses only about half of its 15 billion gallon allotment of water each year from the project. It is quite possible that there just won’t be as much San Juan-Chama water available in the future.

As people and businesses take too much water, prolonged drought fueled by climate change intensifies the drain. Many Tribes and Pueblos still don’t have full access yet to the Colorado River or the Rio Grande and its tributaries. These water rights still need to be resolved. Will there be enough water once these rights have been adjudicated?

As the puddles formed in the Rio Grande this summer, a Six-Pueblo coalition started the legal process to quantify their water rights. As more tribes reach water rights settlements and build out infrastructure to use their rights, the amount of water needed to support water rights will grow.

The Albuquerque Bernalillo Water Authority has plans in place that they say guarantees water for the next 100 years. Seven generation stewardship is a concept followed by Native Americans when deciding whether decisions made today about natural resources would benefit the seventh generation into the future (about 525 years, counted by multiplying the 75 years of an average human lifespan by 7).

There is a lot to learn from the Pueblos and the Native Tribal communities example. Climate change is not coming, it’s here and New Mexico can plan, but in the end, must adapt and adjust to whatever comes out of the sky to nourish its people, its wildlife and the environment.


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