Citing decades of conflict with the state over water, the Ute Indian Tribe is upset with a freshly passed bill that would set up a new state agency to advance Utah’s interests in the Colorado River, potentially at the expense of the tribe’s more senior rights.
On Wednesday, tribal Chairman Luke Duncan sent a letter to Gov. Spencer Cox, insisting on guarantees that the newly proposed Colorado River Authority of Utah wouldn’t take steps that would diminish the tribe’s water rights.
“We were a tribe long before Utah was a state and controlling law prevents Utah or its Colorado River Authority from taking any action that would impact our water rights,” the Ute Indian Tribal Business Committee said Friday in a statement. “After more than a century of broken agreements and attacks on our waters, state laws like HB297 must be clear that the state cannot diminish or impact our Indian reserved water rights. Respecting the tribe’s rights to its lands, resources and waters was part of the deal Utah made when it joined the United States [in 1896]. It is time for Utah to live up to its word.”
In his response Friday, Cox assured tribal officials the state has no intention of diminishing their water rights.
The tribe wanted HB297 amended, but on Thursday the Legislature finalized the bill, which would also establish a $9 million “legal defense fund” and advisory councils. The legislative session was poised to end Friday at midnight, so it appeared too late for any amendment.
However, as head of the state’s executive branch, Cox, without stating whether he would sign the measure, promised his administration would work “collaboratively” to protect the water rights of all those who use the Colorado River in Utah.
“I am confident that the state and the Ute Tribe can use this as an opportunity to identify common interests and work together to protect those interests,” the governor wrote in his reply to Duncan. “I and the two members of my administration who serve on the authority will work to identify opportunities for the Ute Tribe to participate through one or more advisory councils so that tribal concerns may be considered within the authority.”
In its letter, the tribe’s business committee asked the governor to issue a signing statement acknowledging that federal law prohibits the proposed river authority from impairing the tribe’s senior reserved water rights in the Colorado River Basin or elsewhere in Utah.
“As you know, all other water rights in the state are secondary to our use and development of waters in the Colorado River Basin,” the tribe states. “However, the state’s repeated failure to comply with this settled law is now a significant barrier to the state’s own efforts to claim and develop its share of the Colorado River.”
The governor’s response did not indicate whether the requested signing statement would be forthcoming.
Under a century-old compact, Utah shares the river’s flow with six other states, divided between the Colorado’s Upper Basin and Lower Basin. Utah is in the Upper Basin with New Mexico, Wyoming and Colorado, while the Lower Basin is made up of Arizona, Nevada and California. Glen Canyon Dam, which impounds Lake Powell, is where the two basins meet. Utah’s share is 23% of what’s left after the Lower Basin gets its share.
In subsequent agreements, the seven states are to set aside water for Native American tribes and Mexico.
HB297 was sponsored by the Legislature’s top leadership, House Speaker Brad Wilson, R-Kaysville, and Senate President Stuart Adams, R-Layton. The new agency’s purpose is to match the expertise and resources the sponsors contend other states invest to enlarge their shares of the river’s flow to the detriment of Utah. The six-member authority would have representation from five regions of Utah that rely on the Colorado River water and one representing the governor’s office.
Bill sponsors contend that the less than 1 million acre-feet Utah currently uses, represents 54% of the state’s share of the Colorado under the 1922 compact, known as “The Law of the River.”
Critics contend these calculations ignore various tribal rights to the river and the Colorado’s dwindling flows that shrink all seven states’ shares.
“Utah water lobbyists are continuing their climate change-denying water war against other Colorado River Basin states with this legislation,” said Zach Frankel, executive director of the Utah Rivers Council. “It’s disappointing Utah isn’t working to embrace climate change and our shared future of collaboration by denying what’s happening to the Colorado River and advancing the Lake Powell pipeline with this secretive bill.”
According to the U.S. Bureau of Reclamation, the Utes’ claim rights to divert 550,000 acre-feet, but tribal members use 212,000. The tribe has not been able use its full right because it lacks the means to store all that water, mostly flowing off the Uinta Mountains’ south slope into the Duchesne and Green rivers passing through the Uintah and Ouray Reservation.
The state and the tribe worked out a water agreement back in the 1980s, but it has yet to be approved by the federal government. The Utes have taken the Interior Department to court over the government’s alleged mishandling of the tribe’s water rights. That case is pending in federal court in Washington, D.C.
HB297 charges the new authority with advancing water projects, such as the controversial Lake Powell pipeline, aimed at developing Utah’s access to the Colorado’s water. Because the bill would allow broad exemptions to Utah’s public records and open meetings laws, the bill’s many critics believe it would enable the new authority to pursue legal strategies in secret.
That provision raised concerns among tribal officials who say the authority “is specifically designed” to evade transparency and accountability.
“The state’s continuing attacks on the tribe’s water rights and the state’s refusal to negotiate a free and fair settlement with the tribe, has created a cloud of uncertainty and mistrust as the state looks to negotiate with other Colorado River Basin states,” the tribe stated.
Promises that the authority won’t try to take water the tribe has claimed will go a long way toward avoiding future conflict and put the state on more solid footing as it negotiates water development, concludes the tribe’s letter to the governor.
