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Who Owns the Aquifer? The Changing Scope of Native American Groundwater Rights

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.

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Western Articles and Media Elsewhere
Compiled by Felicity Barringer, Maya Burke, Kate Selig, Francisco L. Nodarse, Devon Burger, and Madison Pobis

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Articles Worth Reading: September 23, 2020

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Articles Worth Reading: September 15, 2020

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A Trout With Feathers: Looking At the West’s Only Aquatic Songbird. A photo essay on dippers, small gray birds that bob up and down on rocks, dive into streams, and resurface with insects in their beaks. Audubon Magazine

Articles Worth Reading: August 17, 2020

Final Approval to Drill Arctic Wildlife Refuge clears the way for an auction for oil and gas drilling rights on the 1/6 million-acre plain. Four decades of fights over the refuge have paralleled four decades of science showing the burning of fossil fuels is heating the air and the oceans and changing the climate. These changes may make it difficult to sustain the infrastructure needed for drilling. Elsewhere in Alaska, ConocoPhillips is using “chillers” to keep the warming climate from thawing the tundra under its Willow oil drilling platform on the North Slope. Washington Post Bloomberg News

California Heat Sets Records, Creates Rolling Blackouts As Fires Spawn Firenados. The combination of intense heat, dry vegetation and lightning storms has the state struggling on several fronts. The unusual and extreme phenomenon of a fire-generated tornado occurred on August 15 in the Lake Tahoe area as a new fire quickly spun out of control. A few days earlier, the Lake Fire outside Los Angeles spawned its own firenado. Rolling blackouts hit the state while in Death Valley, the temperature hit a record 130 degrees. Los Angeles Times National Public Radio Desert Sun

Arizona’s Drought Intensified as Seasonal Monsoons Again Turn Into “Nonsoons.” With temperatures in Phoenix exceeding 110 degrees for days on end and the three-month period ending in June was the second hottest and third driest in 125 years. Populous Maricopa County, including Phoenix and Scottsdale, is in a severe drought. The impact on the water levels at Lake Mead, which is now at 40 percent of capacity, will mean that Arizona, Nevada and Mexico will receive less water from the Colorado River. Arizona Water News Arizona Republic

Some Oregon Forest Land Would Be Lost as Spotted Owl Habitat if a federal Fish and Wildlife Service proposal becomes final. The proposal would take 204,653 acres, or 2 percent of the total of 9.6 Million Acres, from the area of ancient forests designated as critical habitat and set aside as habitat for the endangered owl. Oregon Public Broadcasting

With Ice Disappearing, Pacific Walruses Are Moving Sooner and Sooner to Beaches of Alaska’s Chukchi Sea. They just gathered at Point Lay at the end of July, earlier than ever before. The walruses had evolved to use floating ice as platforms for foraging and rearing their young. But for the past 13 years, after the first year of a record-low extent of sea ice, they have been moving to the Point Lay site by the tens of thousands every summer. Arctic Today

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Articles Worth Reading: August 3, 2020

In Reversal, Army Corps Determines Alaska’s Pebble Mine Poses No Serious Threat to the region’s valuable sockeye salmon population. The Corps’ ruling overturned a 2014 finding by the Obama Administration. The proposed mile-square mine, 200 miles southwest of Anchorage, is poised to unearth one of the richest deposits of copper, gold and other valuable metals in the world. It pits two of the state’s most important industries, mining and fishing, against each other. Washington Post The New York Times

Land Subsidence Means Chunks of California’s Coast Are Vanishing, a new ASU study reveals. The sinking hotspots are found in San Diego, Los Angeles, Santa Cruz, and San Francisco where the population of millions will be at greater flood risk. “We have ushered in a new era of coastal mapping at greater than 1,000 fold higher detail and resolution than ever before,” said Manoochehr Shirzaei, a co-author of the study. “The unprecedented detail and sub-millimeter accuracy resolved in our vertical land motion dataset can transform the understanding of natural and anthropogenic changes….” Earth.com

Pairing Landowners and Land Management Agencies and Nonprofits has allowed Montana’s Blackfoot Challenge to develop a more resilient landscape and rural community. Its programs include prescribed burns, predator deterrence, and drought-sharing agreements. Bitterroot

California Farmworkers Are Paying High Price as COVID-19 Surges, worrying that as the pandemic surges in agricultural hubs, it could catch and kill them. Or it could kill their jobs. Protections for farmworkers, like masks, hand sanitizer and social distancing, need to be made mandatory, advocates said, and longstanding conditions that farmworkers have endured, such as crowded buses to and from work, or overcrowded housing, need to be addressed. InsideClimate News

Decline in Western Bumblebee Populations Gets More Dramatic, a federal review reveals. In the last two decades, the bee population has dropped by as much as 93% in the last two decades. The U.S. Fish and Wildlife Service is now deciding whether the insects need protection under the Endangered Species Act. The bees are important pollinators and many factors contribute to their decline: pesticides, habitat fragmentation, a warming climate, pathogens and agricultural chemicals. E&E News

The Fight for Clean Water in California’s Central Valley Is a Slog, as clean water is unavailable for hundreds of thousands of Californians in the state’s agricultural heartland. Tooleville, an unincorporated community of 80 homes at the southern end of the Central Valley, is trying to consolidate with a larger and better-resourced neighboring community.. “It’s very, very, very hard,” Yolanda Cuevas said of worries about her children and grandchildren’s exposure to contaminated water. Yale Environment 360

Murder Hornets: What do We Need to Worry About? The arrival of the Asian Giant Hornet in the western U.S. has researchers anxiously looking for ways to control the insect with the terrifying sting, which can pierce the protective clothing of even professional beekeepers. How many are there and where could they spread? A podcast on those questions by the WGA. Western Governors Association NPR

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Articles Worth Reading: July 21, 2020

Government Throws Curveball at Klamath Dam Removal Efforts. The long-range plan to take down four hydroelectric dams on the Klamath River, which flows between Oregon and California, seemed to be headed for conclusion. Then federal regulators refused to let the dams’ owner, PacifiCorp, sever its connections to the project, which it now owns. But energy regulators ruled that while the company can transfer its license, it must remain a co-licensee, potentially leaving it with unexpected liabilities beyond those it has already assumed. The decision throws the idea of recovering Klamath salmon populations further in doubt. Associated Press

Dramatic Increase Coming in California Weather Extremes as climate warming intensifies the cyclical oscillation of air systems, a phenomenon that influences everything from cyclones in the Indian Ocean to drought in the southwest. This finding from a University of California, Davis researcher suggests that the West will experience greater month-to-month fluctuations in extremely dry and wet weather. UC Davis

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Effort to Block the California-Quebec Climate Deal Fails, as a federal court finds the pact on greenhouse-gas emissions doesn’t usurp federal foreign-policy prerogatives. The cap-and-trade program at the heart of California’s fight against climate change could have been weakened if the Trump administration challenge had been upheld. Bloomberg

In Utah, a Debate Simmers Over Estonian Radioactive Waste, which could be reprocessed at a mill next door to the Ute Mountain Ute reservation, the only operational uranium mill in the United States. State officials must approve an importation license. Tribal officials fear this waste transfer could become the first of many to the White Mesa Mill in San Juan County, in southeastern Utah. The tribe says the mill was designed for a different function and is 20 years past its original planned lifespan. Reuters

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Birds, Like Buildings, Can Have Confederate Names. One is the McCown’s longspur, a sparrow-like bird that summers in the Great Plains and winters in the southwest. John Porter McCown, its namesake, helped forcibly relocate Native Americans in the 1840s and served as a Confederate general during the Civil War. “Naming and language have power. The way that you use language tells people whether they belong or not,” said Earyn McGee, a University of Arizona doctoral candidate and organizer an online campaign to increase visibility of Black birders. The American Ornithological Society had balked at a name change; it is now rethinking that decision. Undark

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