Skip to content Skip to navigation

Who Owns the Aquifer? The Changing Scope of Native American Groundwater Rights – and Opportunities for Better Freshwater Management

Josie Garthwaite
Aug 3 2018

Scientists map groundwater at stake after a court decision that bolsters Native American rights to a precious resource across an increasingly arid West.

A Sinking Valley Local water agencies have pumped so much water from aquifers to supply homes, farmland and resorts in the Coachella Valley that the land is sinking. The Agua Caliente Indian Reservation, created in 1876, runs in a checkerboard pattern in the area of Palm Springs. Tim Roberts Photography / Shutterstock
 

By Josie Garthwaite

California’s Coachella Valley may be ground zero for a new chapter in water rights for Native American tribes, according to a new Stanford study published in the journal Science.

Better known for lush golf courses, glittering pools, a popular music festival and temperatures topping 120 degrees, this inland desert is also home to the Agua Caliente Band of Cahuilla Indians, which has fought since 2013 for federal courts to affirm its right to groundwater beneath its reservation. Lower courts ruled in the tribe’s favor, and in late 2017 the U.S. Supreme Court denied an appeal.

Observers immediately recognized that the decision could set a powerful precedent for tribal groundwater claims, which have suffered murky legal status for more than 100 years. But how much groundwater is at stake as tribes assert this newly bolstered right – and where these claims may clash with nontribal users in an increasingly arid West – remained uncharted until now.

Sizing up water rights

The study reveals that court decrees and settlements have resolved or proposed rights for tribes in western states to use more than 10.5 million acre-feet of surface water and groundwater annually. To put that in perspective, this would be nearly enough water to irrigate all of the alfalfa, almond and rice fields in California for a year. “It’s a major volume,” said lead author Philip Womble, a PhD student in environment and resources in the Stanford School of Earth, Energy & Environmental Sciences (Stanford Earth).

Tribal Groundwater Claims in the American West

Most unresolved Native American claims to groundwater exist in areas where there’s reason to believe major aquifers could yield significant amounts of groundwater, including in some places where nontribal wells already dot the landscape and increased pumping by tribes might disrupt their production.

Tribal Groundwater Claims in the American West

Philip Womble

Before the Agua Caliente ruling, the study shows, tribal rights exclusively for groundwater made up a small portion – 4 percent – of all tribal freshwater rights in 17 western states. Now, more tribes will likely seek to resolve their rights to control and use water from the aquifers beneath their land, according to Womble and his co-authors, who include Water in the West executive director and Woods Institute of the Environment professor Leon Szeptycki, as well as Water in the West non-resident fellows Debra Perrone and Rebecca Nelson.

This shift comes at a time when questions of who owns the aquifer and how they can use the water holds increasing urgency, as western states face the likely prospect of demand outstripping the supply of legally available freshwater in most western watersheds by 2030.

“Indigenous communities in several countries have struggled to gain rights to their natural resources,” said study co-author Steven Gorelick, a professor of Earth system science at Stanford Earth and director of the Global Freshwater Initiative. Almost half of all homes on Native American land lack adequate access to drinking water or waste disposal facilities, compared to less than 1 percent for U.S. homes overall. The Agua Caliente ruling, Gorelick said, “is a very important step forward in restoring balance to those injured Native American tribes.”

Competing for a precious resource

In the Coachella Valley, the Agua Caliente tribe has for decades purchased water from local agencies, which have pumped so much water from the region’s aquifers that the land is sinking. Now, as the next phase of Agua Caliente’s lawsuit unfolds in federal court, the tribe is seeking to have judges put a number on its groundwater rights, establishing how much water it can pump from the Coachella Valley aquifer – potentially before most other users are entitled to a single drop.

Today, the study shows, fewer than 60 tribes in the western U.S. have this level of legal certainty around their rights to fresh water from any source – whether from lakes and rivers on the surface, or from aquifers underground. Many more tribes have unresolved rights: According to the study, as many as 236 tribes in the western U.S. have lands with groundwater rights that have not been finally quantified in court or in settlements. In all, the research suggests, tribes control at least some water from so many aquifers across the West that any plan to sustainably manage water in the region would be incomplete without considering their role.

These unresolved groundwater claims span large swaths of Arizona, Oklahoma, South Dakota and Utah, and smaller clusters can be found in all other western states except Colorado. Most of them exist in areas where there’s reason to believe major aquifers could yield significant amounts of groundwater, including in some places where nontribal wells already dot the landscape and increased pumping by tribes might disrupt their production.

Ripple effects for laws and markets

Before the Agua Caliente ruling in late 2017, tribal rights exclusively for groundwater made up a just 4 percent of all tribal freshwater rights in 17 western states. Philip Womble
Before the Agua Caliente ruling in late 2017, tribal rights exclusively for groundwater made up a just 4 percent of all tribal freshwater rights in 17 western states.  Philip Womble
 

“Court disputes usually focus on the specific facts of a given case,” said Womble, who specializes in water policy in the Emmett Interdisciplinary Program in Environment and Resources (E-IPER) at Stanford Earth. He is also an attorney. His team has captured a bigger picture that could help inform decisions about groundwater management throughout the U.S. and in other countries that recognize indigenous community water rights, including Australia, Canada, Chile and New Zealand.

“Even though a U.S. court decision clearly isn’t binding in another country,” Womble said, “it could provide a persuasive precedent that courts confronting this issue in other nations might look to.” Historically, he said, courts in Canada and Chile have adopted some terminology and approaches from U.S. water law.

Already, Gorelick added, the study results suggest that the creation of market-based systems for renting water rights could work to indigenous communities’ advantage. “With this ruling,” he said, “Native American tribes with higher priority rights are now in the driver’s seat to potentially benefit from participating in water markets.”

Water in the West is a program of the the Bill Lane Center for the American West and the Stanford Woods Institute for the Environment. Steven Gorelick also is Stanford’s Cyrus Fisher Tolman Professor and a senior fellow at the Stanford Woods Institute for the Environment. Leon Szeptycki also is the Professor of the Practice at the Stanford Woods Institute for the Environment. Additional co-authors are from the University of California, Santa Barbara, the University of Washington Law School and Harvard Law School. The research was funded by the Switzer Foundation and the Stanford Interdisciplinary Graduate Fellowship.

and the west logo

 

 

Read Next in ...& the West

Strawberry Fields Forever? Thirsty Baja Turning to Seawater to Grow Lucrative Crop

An arid region 180 miles south of Tijuana is the crossroads where strawberries, economics, and groundwater meet.

Back to main page

 

 

 

 

Reader Comments

Submit your own thoughts and questions by using the form at the bottom of this page. Entries will be reviewed and posted as we get them.

Submit a Comment

We'd like to know what you think. We will not share your email address or add you to any lists. If you'd like to be notified about new blog posts and news from the Center, you can join our mailing list.

You will receive emails no more than once a week. We will not share your information.

 

...& the Best

Western Articles and Media Elsewhere
Compiled by Felicity Barringer and Rebecca Nelson

Articles Worth Reading: Nov. 20, 2018

Raging Fires Made California’s Air 60 Times Dirtier than world health standards last week, and more than 10 times worse around the San Francisco Bay area, as smoke from the Camp Fire in Paradise sat on communities 200 miles away. Smoke, not flames, is the deadliest public health risk from wildfires. Bloomberg Grist

As Lake Mead’s Levels Drop, Can Seven States in the Colorado River Basin Agree on a drought contingency plan to share the predicted water shortage? A rebellion by two Arizona agencies may impel the six other states to make decisions on their own. Op-ed articles by the state’s governor and a former Interior Secretary scold the agencies for their intransigence. As Gov. Doug Ducey wrote, “The foundational purpose of a multi-state drought contingency plan is to transition to a drier future….However…demands for water and money to mitigate reductions are growing to insurmountable proportions.” Phoenix New Times Arizona Capitol Times Arizona Republic

Gray Wolves’ Protection Under the Endangered Species Act May Not Last, if a bill just passed by Congress becomes law. The measure ends federal protection from the wolves in the 48 contiguous states. In the Northwest, where wolves are considered endangered in the western two-thirds of Oregon and Washington, state agencies would take over. Environmental groups say the wolves’ recovery goals are not far off, but may not be reached if the federal government bows out. Oregon Public Broadcasting

With The New Approval of An Industrial Solar Facility in the California Desert, and the news that its electricity has already been sold, the state, which is already ahead of its legislated goals for renewable energy development, will give a big boost to the national boom in renewable energy — a national success that will eventually face strong competition from China. Clean Technica Solar Industry Magazine Solar Industry Magazine Time

Their Canadian Cousins Thrive, But the Orcas of Puget Sound Face An Existential Crisis. While they are the most studied whales in the world, they among the most endangered orcas. As the population of Canadian orcas has grown by 250 percent since 1974, and is at 309, the population of Puget Sound’s pods, now 74, has grown barely nine percent in the same period. Experts blame the impact of the expanding human and industrial presence in the orcas’ range. The three southern pods have not successfully reproduced in three years. Washington Gov. Jay Inslee has put together a task force on recovering the whales. Seattle Times

Articles Worth Reading: Nov. 7, 2018

Six Western States Have Voted on Contested Environmental Policies. Five of Them Failed. Some ballot initiatives gave midterm election voters a chance to support salmon populations in Alaska or to support a fee on carbon emissions or to oppose recent environmental rollbacks involving drilling. Oil, gas, and mining companies poured money in opposition to statewide ballot measures that could increase costs or diminish revenues. The story of the campaigns and the work of environmental groups ran before the election. The results came today, in places ranging from Colorado to Washington State to Alaska. Mother Jones Denver Post Montana Standard PV Magazine Seattle Times KTUU Anchorage

The Navajo Tribe’s Future Without Its Major Employer and With a New President. As the various financial schemes for prolonging the life of the Navajo Generating Station fell apart, tribal members who work there must choose between finding employment where the new owners assign them, or staying on the reservation until the plant closes a year from now, then having a small chance of any job that pays as well. Their decisions will be made against a new political backdrop, as Joseph Nez, at 43, was just elected the youngest Navajo president ever. ASU/Cronkite News Indian Z News

Rare Dinosaur Fossils Are Threatened by the reduction of Grand Staircase-Escalante National Monument. Vast areas of land that may contain important paleontological discoveries are now vulnerable to potential energy development. About 250,000 acres of land with a high potential for fossils are being considered for mineral development. Salt Lake Tribune

A Water Reckoning in Colorado. Farming communities in the North Fork Valley of Colorado are water-rich in an era of increasing water scarcity. Farmers continue to use high volumes of water for irrigation. However, with climate change, the community will have to change outdated and inefficient systems in order to share water more cooperatively. High Country News

Indigenous Food Sovereignty in British Columbia. Activist Jessie Housty, a member of the Haíłzaqv nation, is educating young people in her community about their traditional food sources and culture. Her efforts are part of a larger movement to address food insecurity and malnutrition in indigenous communities through providing access to cultural foods. Civil Eats

Articles Worth Reading: Oct. 23, 2018

President Trump Plans to Ease Water Rules in the West by streamlining existing regulations. After signing a memo last week, he claimed he will increase the West’s water supply by hastening projects in California and the Pacific Northwest. But some farming communities, environmentalists, and the Winnemem Wintu tribe oppose his action. Critics of Trump’s memo assert that his plan would weaken environmental regulations, hurt local communities and ecosystems, and flood sacred tribal sites. ASU/Cronkite News Guardian Associated Press Salt Lake Tribune

Spokane Considers How to Adapt to Climate Change. In light of the recent Intergovernmental Panel on Climate Change report, communities in Spokane are planning how to adapt to the consequences of climate change. People are monitoring rivers and analyzing water consumption to prepare for decreases in snowmelt. The Colville Tribe is planting heat-resistant trees. The Spokesman-Review

For Imperial Beach, Managed Retreat May Be the Plan. Facing threats of increased flooding due to rising seas, the mayor of Imperial City is proposing that the community relocate coastal homes and business farther inland, as a managed-retreat strategy. However, the process of managed retreat raises political and ethical questions that have sparked controversy among community members. High Country News

In the Face of a Water Supply Crisis Along the Colorado River, local water conservation programs in farming communities can foster drought resilience. Policymakers should consider these community-oriented programs when developing drought mitigation strategies. Water Deeply

Managing the Colorado River. Demand for water and electricity have had a significant impact on the Grand Canyon and Colorado River ecosystems. Taking climate change, recreation, and other challenges into account, biologists are exploring the current challenges of river conservation. Arizona Republic

Articles Worth Reading: Oct. 9, 2018

Wildfires Don’t Hurt Real Estate Markets. Researchers from University of Las Vegas determined that real estate markets in Colorado rebound within a year or two of a wildfire, encouraging development in high risk areas. People continue to move to fire-prone areas due to their scenic appeal and proximity to cities. High Country News

Water Disputes in Colorado. A cop investigates conflicts over stolen water in the Four Corners region. His work involves enforcing complex water statures and confronting local tensions over water rights that sometimes turn violent. KUNC Radio

The Potential of Stormwater Capture. In California, communities are expanding their stormwater management programs to include aquifer recharge and irrigation in addition to controlling floods. Captured stormwater could provide Californians with a water supply that is resilient to climate change. Pacific Institute

An Air Quality Monitoring Program Failed to Alert Residents of Seeley, California to the danger of particulate pollution near a local elementary school. The nonprofit responsible for the monitoring, Comite Civico de Valle, seeks to expand its program to other areas despite controversy over its practices. Desert Sun

Bee Thieves Exploit California’s Almond Harvest. Bees play a crucial role in the pollination of almonds in the Central Valley, but colony collapse disorder threatens apiculture. Recent increases in stolen beehives have exacerbated the industry’s challenges. Reveal/CIR

Articles Worth Reading: Sept. 25, 2018

In California’s Central Valley, Air Pollution Levels Are Very Local. Residents, like the mother of a young asthmatic profiled here, need to know exactly what they are. “Regulatory agencies think regionally,” said the head of the Central California Asthma Collaborative, a Fresno-based nonprofit. This group and others, helped by new state laws, try to increase the air monitoring in a region with some of the country’s most polluted air. Kaiser Health News

Gender Diversity and California Firefighting. Starting on August 1st, the Donnell Fire burned 36,000 acres in Stanislaus National Forest, and firefighters now have it at least 90% contained. A photographer shares the stories of firefighters tackling California’s Donnell Fire and challenging traditional gender roles in their careers. High Country News

With Climate Change, Algal Blooms Contaminate Oregon Drinking Water. Last May, Oregon declared a civil emergency when toxic algae contaminated Salem’s drinking water, posing health risks to children and nursing mothers. Recently, Oregon became the second state to require testing of potable water for algal toxins. The new regulations are part of the Oregon’s plan to address how climate change is affecting its water quality. KSUT

National Parks Are Warming Twice As Fast as the rest of the country, according to a new study. It focused on 417 protected areas and found they were 1.8 degrees warmer in 2010 than they had been in 1885, double the national average rate, and precipitation was down 12 percent in the same period, compared to three percent nationally. Yale Environment 360

Los Angeles Proposes Giant Hydropower Battery for Hoover Dam, but the project faces many legal and political roadblocks due to Colorado River’s shrinking water supply, which has been a source of conflict between California, Arizona, and Nevada. Los Angeles aims to create a three billion dollar hydropower storage system, consisting of twenty miles of pipeline that connect to Hoover Dam. Water Deeply

Wyoming Turns to Wind Power. Although Wyoming is America’s top coal producer, the state is now garnering increased support for wind power, as the coal industry declines. Proponents of Wyoming’s developing wind power industry emphasize its economic importance, while skeptics raise environmental and aesthetic concerns about how wind turbines will impact the landscape. Natural Resources Defense Council

Articles Worth Reading: Sept. 11, 2018

In 27 Years, California Plans to Eliminate Carbon From Its Electrical Grid. That’s the central aim of legislation signed Monday by Gov. Jerry Brown. A year after a similar bill failed, the new measure underlines California’s desire to be the nation’s leader on working to slow climate change — the shifting weather that has turbocharged the state’s wildfires and caused increasing destruction from Redding to Santa Barbara. Meanwhile, wind developers are eyeing the California coast as a place to create new renewable energy for a changing grid. InsideClimate News Utility Dive

A Floating Boom a Third of a Mile Long is the Newest Garbage Collector in the Pacific Ocean. Its mission: start cleaning up the Great Pacific Garbage Patch. This gyre of sailing detritus has an estimated 1.8 trillion objects rotating slowly between California and Hawaii, and California. The nonprofit Ocean Cleanup is investing $20 million in the project. But can it really remove the 87,000 tons of plastic? New York Times/Associated Press

The Killer of Swaths of Bigleaf Maples in Washington State Is Unknown, but its impact is being felt from Washington State south to California. These trees, whose leaves can stretch a foot across, can grow 100 feet tall. Their impressive silhouettes mean that the landscape changes dramatically as they die. The U.S. Forest Service and the University of Washington, and the Washington state Department of Natural Resources have been studying the maples, but no diseases or insects have been found in significant numbers. So no known culprit. Seattle Times/Tacoma News Tribune

Bighorn Sheep and Moose Tell Their Friends Where to Go for the best food, a new study shows. The notion that migration behaviors, following the green wave of food around the West, was a learned behavior and not a product of genetic inheritance, had been around for a while. The thought was “they just have to learn how to do this,” said Matthew Kauffman, an ecologist at the University of Wyoming. So he set up a study involving bighorn sheep that were transplanted into an area unfamiliar to them, but where established herds existed. Without genetic coding for this particular migration, they did it anyway. National Geographic

Some Called Him ‘The Renaissance Man of the West;’ His Maps Combined Geography, History and Whimsy into one package. Jo Mora, an immigrant from Uruguay, did some sculpture and coin design before finding maps to be his metier. One observer said “They’re almost like books,” to be perused in bits and pieces at several sittings. The maps he left are cartographic cartoons, telling not just the shape of the state, but the stories of its places. Atlas Obscura

Graphics & the West

 

Recent Center News

Dec 14 2018 | Center News
The Center’s director looks back on an eventful year for our research projects, public programs, and undergraduate endowment.
Dec 4 2018 | ... & the West Blog, ... & the Best | Posts Recommended by the ... & the West Blog
A recent federal report details economic impacts of climate change on the West; the private firefighting industry is growing; sewage poses health risks for border towns; a recycling scandal crosses state lines between California and Arizona and other recent articles about the West’s environment.
Nov 20 2018 | Happenings
On October 29, Lukas Felzmann discussed the evolution of his photography leading to his most recent book, Apophenia.