2016 State of the Rockies Report: The Scales of Western Water by Rockies Project

Research • Report • Engage

2016 State of the Rockies Report

The Scales of Western Water

2015-2016 State of the Rockies Project Acknowledgments The Colorado College State of the Rockies Project would like to thank the following individuals and groups for their generous contributions to help support summer research, publication of The State of the Rockies Report, monthly speakers, and student activities. Chip Collins and Annie Childs, Colorado College Class of 1977 & 1978 Colorado College Clarence E. Heller Foundation The William and Flora Hewlett Foundation Jane E.S. Sokolow, Colorado College Class of 1972 Helen and Horst Richardson The Trinchera Blanca Foundation Anonymous

The Colorado College State of the Rockies Project Research • Report • Engage The Colorado College State of the Rockies Report, published annually since 2004, is the culmination of research and writing by a team of Colorado College student researchers. Each year a new team of students studies critical issues affecting the Rockies and the American West. Colorado College, a liberal arts college of national distinction, is indelibly linked to the Rockies. Through its Block Plan, students take one course at a time, and explore the Rockies and Southwest as classes embark in extended field study. Their sense of place runs deep, as they ford streams and explore acequias to study the cultural, environmental, and economic issues of water; as they camp in the Rocky Mountains to understand its geology; as they visit the West’s oil fields to learn about energy concerns and hike through forests to experience the biology of pest-ridden trees and changing owl populations. CC encourages a spirit of intellectual adventure, critical thinking, and hands-on learning, where education and life intertwine. The Colorado College State of the Rockies Project dovetails perfectly with that philosophy, providing research opportunities for CC students and a means for the college to engage the region in a meaningful way. The State of the Rockies Report fosters a sense of citizenship for Colorado College graduates and connects the college to the broader regional community.

2016 State of the Rockies Report The Scales of Western Water Edited By: Eric P. Perramond, Ph.D. State of the Rockies Faculty Director Brendan P. Boepple State of the Rockies Associate Director Brooke Larsen 2015-16 State of the Rockies Program Coordinator With special thanks to: Steve Weaver for his annual contribution of the cover photo.

Table of Contents Pushing the Basin Boundaries Beyond the Divide Eric Perramond, 2015-16 State of the Rockies Faculty Director Brendan Boepple, State of the Rockies Associate Director............................................................................................................................2

Water Transfers in Colorado: Past, Present and Future

Burkett Huey, 2015-16 State of the Rockies Fellow.......................................................................................................................................5

A Paradigm Shift in Water Management Among Colorado Farmers and Ranchers

John Jennings, 2015-16 State of the Rockies Fellow..................................................................................................................................15

Native American Water Quality Rights: How the EPAâ&#x20AC;&#x2122;s Treatment as a State Program can Strengthen Tribal Sovereignty in the Southwest

Jonah Seifer, 2015-16 State of the Rockies Fellow.....................................................................................................................................27

Opposing the Grand Canyon Escalade Project: Navajos and River Runners as Cultural Stakeholders Maya Williamson, 2015-16 State of the Rockies Fellow............................................................................................................................51 2015-2016 Rockies Project Contributors......................................................................................................................60

Pushing the Basin Boundaries Beyond the Divide by Eric Perramond, 2015-16 State of the Rockies Faculty Director and Brendan Boepple, State of the Rockies Associate Director Over the past year, our four State of the Rockies Student Research Fellows explored the many scales of western water issues. First by researching topics on campus during the summer, and afterwards by engaging experts and stakeholders in the field. That investigation continued throughout the academic year as we brought experts to Colorado College for our annual Speakers Series. The heart of the Rockies Project has always been the undergraduate research work performed by the fellows, and it is showcased in this 2016 State of the Rockies Report. Two of our student fellows researched the role of Native peoples and water: in balancing development needs and recreational river runners on the Navajo Nation (Maya Williamson, Fighting the Grand Canyon Escalade Project: Examining Navajos and River Runners as Cultural Stakeholders), and in addressing the often-ignored water quality issues on Native reservations in the West (Jonah Seifer, Native American Water Quality Rights: How the EPA’s Treatment as a State Program can Strengthen Tribal Sovereignty in the Southwest). This research took our students through New Mexico and Arizona, engaging officials from the Pueblo of Isleta south of Albuquerque, and interviewing stakeholders across the Navajo Nation. These projects are complemented by Burkett Huey’s focus on a potential Colorado River compact call and water pricing (Water Transfers in Colorado: Past, Present and Future), and John Jennings’ investigation on water ethics and how farmers manage their water with ethics in mind (A Paradigm Shift in Water Management Among Colorado Farmers and Ranchers). That research led Burk and John to interact with agriculturalists on Colorado’s Western Slope, learning about water transfers and irrigation efficiencies firsthand. However, we still have so much to learn. Part of the western water challenge is realizing that it is not just about scarcity of water and competing uses. Sometimes it’s about power generation, fish, the health of a river and the difficulties in managing these complex systems. Throughout the summer of 2016 and during the next academic year the State of the Rockies Project is engaging in a new, regional comparison of river basins. This past year’s focus on the “Scales of Western Water” illustrated many of the challenges we face in western water issues: overall water scarcity and over-allocation, trying to create new water paradigms, and the strong role that sovereign tribal nations are exercising as they strive for both water quantity and water quality. Yet in the dry basins of the Rockies, so tightly dependent on snowpack, little of that water is dedicated to species. Colorado does have an instream flow program for keeping some surface flow in rivers,

but the Ute and Navajo peoples were never highly dependent on the native in-stream fish for their livelihoods or their identity. In contrast, on the Columbia River, the Klamath, and other tributary basins in the Pacific Northwest, sovereign Native groups have long identified salmon as the central issue of most concern to them. Inclusive river and water governance in the West is an aspirational goal, not a description of the status quo. It is time to ask tough questions in places close and far from campus. What is the power and limit of a river’s agency when translated through state instream flow programs? Do fish and species speak louder if humans tie their very existence to them? The 2016-17 Rockies Fellows will address these questions in direct and indirect ways as we adopt a comparative basin approach, using what we know from the Southwest, and moving to the Northwest to push the boundaries of conventional wisdom in hydraulic, legal, and political domains. Water agencies in both the Rockies and the Cascades are tasked with planning for climate change, satisfying water demand, and protecting the rights of Native nations in both regions. Furthermore, agencies must reconcile these realities with past policies that enabled liberal allocation of land and water in the American West. These regions are home to many of us and are increasingly influenced by our shifting senses of place and ecology. It is high time to think through what new water paradigms, management regimes, and creative solutions might offer us as we face increasing water challenges in the 21st Century. These communities consist of all of us: humans, fish, trees, the fields upon which we rely. We will not save the West’s water, or its communities which are dependent on it, without inclusive policies that justly serve all populations. What guiding legal and political principles can still benefit us, and which ones might need to be reconsidered? We hope you will join us in following the Fellows’ work over the next year, as the Rockies Project continues the Speakers Series and showcases the creative thinking of students as they engage with the broader West.

Brendan Boepple

Water Transfers in Colorado: Past, Present and Future by Burkett Huey, 2015-16 State of the Rockies Project Fellow Western water is currently over appropriated. Many individuals have rights to water, but there is not enough water for everyone to divert as much as they are appropriated from the region’s rivers. Irrigators settled the West before other users, such as cities or recreationalists, and have the oldest and best water rights under the system of prior appropriation. The West’s growing population challenges the current farming-dominated water appropriation as cities seek to buy the most senior rights from irrigators. This, in turn, leads to the term ‘buy and dry,’ because the practice of selling irrigation water can result in economic downturn for farmers and widespread negative, third-party effects throughout rural communities. However, water transfers don’t always have to place an economic burden on agricultural communities. Some examples of rotational fallowing and water leasing mechanisms in Colorado and across the West show that water transfers can provide water for urban areas and maintain the rural, agriculture livelihood. but distributes ‘rights’ to water users so that individuals can use Introduction Long-lasting population growth, particularly urban water for ‘beneficial use,’ a use the state sees as appropriate (Hobbs

growth, is straining Colorado’s water supply and challenging the current water appropriation. Recently, for example, the Colorado River Supply and Demand Study identified a 3.2-million acrefoot imbalance between the amount of water provided by the river and the amount needed to supply the multi-state Colorado River Basin (U.S. Bureau of Reclamation 2013). Within the state of Colorado, Colorado’s Water Plan identifies that municipalities are the fastest growing water users in the state and will demand more water in the coming years for their growing populations (Colorado Water Conservation Board 2015). However, the water supply is not growing. The Statewide Water Supply Initiative 2010 (SWSI) predicts irrigated acreage is likely to decrease within Colorado, which shows that new urban water will likely come from agriculture to out-of-basin municipal water transfers (Colorado Water Conservation Board 2011). Water transfers, particularly of agricultural water to out-of-basin municipal users, have become a polarizing topic within the American West. Many agricultural users are concerned about ‘buy and dry’ practices, as they are known in Colorado, hypothesizing that agricultural communities face large-scale economic downturn after selling irrigation water. This report examines why water transfers exist in Colorado, and shows how poorly designed water transfers can damage specialized rural economies, while well-designed transfers can leave communities better off and provide water for municipal users.

Background

The American Southwest’s aridness forced settlers to develop a unique solution to water management. Colorado and every other Southwestern state determines water use through ‘prior appropriation’ in which the state retains water ownership,

2004). These rights generally insist water is diverted from a river to be put to ‘beneficial use,’ such as agriculture or municipal water supply, although newer types of beneficial uses do not require diversion. The oldest ‘right’ to water is fulfilled first, then subsequent users receive water after the first. Senior rights, generally irrigators, have full access to water before junior rights, which include many uses, such as municipal or non-senior agricultural water rights. Water rights are property rights, and while associated with any particular parcel of land that has been watered to beneficial use, water rights can be severed from the land base. Water is measured in acre-feet, or the amount of water that is required to fill an acre of land by one foot, which amounts to about 325,000 gallons of water. Water can be bought and sold to properties upriver, downriver, or can even be pumped from one river basin to another. There is not enough water to satisfy every need, so both society and the open market decide who will receive how much water, at which times and for which uses. Water scarcity and variability are major issues within Colorado. SWSI shows that population growth in Colorado will lead to a municipal and industrial water supply ‘gap’ in every water basin in Colorado (Colorado Water Conservation Board 2011). This gap is the amount of water demand beyond the amount of water available. The gap is driven by projections of urban population and industry growth by 2050, which is shown in Figure 1 (Colorado Water Conservation Board 2010). Unfortunately, many of Colorado’s rivers are already fully appropriated, meaning that all of the available water in a particular river is currently being used, and that some water rights holders are unable to receive their appropriated right. Thus, issuing new water rights is not a solution. Further population growth will complicate our water appropriations.

Burkett Huey is a Fellow for the 2015-2016 State of the Rockies Project. Originally from Chapel Hill, North Carolina, Burk is a lifelong hiker. For the State of the Rockies Project, Burk is researching agriculture and water supply. As a major in economics at Colorado College, he is particularly interested in creating a fair model to price water for irrigators and municipalities. Burk will graduate from Colorado College in 2016.

Figure 1: Existing and Future Water Supply Demands in Colorado

Source: Colorado Water Conservation Board 2010.

A further complication of Western water management is significant yearly water variability. The Colorado River Compact of 1922 is an excellent example using estimates to manage variability. The Colorado River Basin’s population grew rapidly during the early 20th century, and the multi-state region needed to develop a way to divide the limited water resources between separate political units of an inhomogeneous region. The Compact appropriated half of the Colorado River’s water, 7.5 million acre-feet, to both the Upper Basin and the Lower Basin per year during a time of relatively high water flows. Unfortunately, the Colorado River is highly variable and does not always deliver this amount of water. Thus, when considering long-run average flows, the planners over appropriated the river, generating interstate conflict (Woodhouse et al. 2006). For instance, the Colorado River has recorded a minimum of 5.6 million acre-feet (1977) and a maximum 25.2 million acre-feet (1984) at Lee’s Ferry, the separating point between the Upper and Lower Basin (U.S. Bureau of Reclamation 2013). This variability is part of the key issue that strains the Colorado River as we do not know the exact amount of water that will be supplied. In response to variability, water is measured over longer terms in the Colorado River Compact: 75 million acre-feet must be delivered to the Lower Basin every 10 years. Although this still leads to an imperfect estimation that is inflexible with climate change, necessity dictates that we plan our water usage over a long-term period. To further hedge against variability, the U.S. Bureau of Reclamation (USBR) constructed Glen Canyon Dam to produce Lake Powell, which divides the Colorado River’s Upper Basin and Lower Basin and allows water managers to control the flow of water in any given year.

Although there are negative consequences of dams, reservoirs are effective methods for reducing variability in water supply. Despite its faults, the Colorado River Compact has provided water for the burgeoning Southwest for the past 90 years. The recent, ongoing drought in the Southwest reminds us that uncertainty in the Colorado River Basin’s water supply is part of the hydrologic system. Since many Front Range cities are dependent on variable Colorado River water and will continue to sustain population growth, well-designed water transfers will be increasingly necessary to get water from a delicate basin to thirsty cities.

Stakeholders

The major uses of Colorado’s river water are agricultural, environmental, municipal and industrial, and recreational. All water users would like to have access to Colorado’s rivers, but there is a limited water supply. Agricultural water users use the vast majority of Colorado’s water, 90.9% of water usage (Ivahnenko and Flynn 2008, p.5). Agriculture produced about $7.7 billion in total sales in 2012 (U.S. Department of Agriculture 2012). Cattle are the most valuable livestock in Colorado, and generate $4.3 billion in sales, which is 55% of all agricultural sales from Colorado (U.S. Department of Agriculture 2012). Agriculture’s major water usage comes from producing feed: each acre of alfalfa uses between 23.7 and 37.7 inches of water in Colorado, which adds up over the 500,000 acres irrigating alfalfa in Colorado (Berrada and Reich 2006; U.S. Department of Agriculture 2012). The cattle themselves do not drink an exorbitant amount of water, yet growing feed for cattle uses a large amount of water. Agricultural water

Figure 2: Relative magnitudes of irrigation water use in Colorado

Source: Ivahnenko and Flynn 2005.

users in Colorado are widely dispersed, but as Figure 2 shows, some counties, such as Weld County and Mesa County, are heavily irrigated. Agricultural rights to use water are derived from their ability to divert river water into an irrigation ditch and then use it to irrigate land (Hobbs 2004). Municipal users are towns and cities, which sell water to residential homes for two major purposes: indoor use and outdoor use. Indoor and outdoor water uses each represent about half of municipal water use (Hobbs 2004). Indoor use is generally split between toilets, dishwashers, sinks and clothes washers; water for drinking is negligible from a statewide water planning perspective. Outdoor use is almost exclusively lawn irrigation. Home water use is further explained in Figure 3. Municipal users are some of the fastest growing in Colorado, but only in a few rapidly growing metropolitan areas. The major municipal areas are on the Front Range and contain about 80% of the population, but receive only about 20% of the precipitation. Municipal use accounts for 7.9% of water usage in Colorado (Ivahnenko and Flynn 2005). Figure 4 displays the total estimated uses of water in Colorado and shows that municipal areas, such as Denver County, El Paso County, and Boulder County generally use between 100 million and 250 million gallons per day. In the last forty years or so, a new set of stakeholders for water use has emerged: environmental and recreational users who want to keep water in rivers. These users are concerned with the health of the ecosystem and the quality of their recreational experience. Environmental and recreational users were the last users to receive water rights because water law did not initially recognize the environment as a beneficial use for water. All water

rights required the user to divert water from the natural course of a river (Merriman and Janicki 2005). This changed in 1973 when the Colorado General Assembly approved instream flow water rights, which allows the Colorado Water Conservation Board to purchase water rights and provide basic minimum protections for streams (Merriman and Janicki 2005). Figure 5 shows a map of all the instream flow rights in Colorado, most of which are high mountain creeks. These rights are generally relatively small; many are under 10 cubic feet per second and are designed to keep a minimum water flow available for critical habitats. Recreational water rights were recognized even later, in 2001 (Hobbs 2015).

Figure 3: Relative proportions of water use in residential homes in Colorado

Source: Watson and Neibauer 2014.

protein, low fiber feed,” that is relatively cheap and widely grown throughout the state (Berrada and Reich 2011; Balliette and Torrell 2012). Although different regions use different amounts of water for growing alfalfa, alfalfa’s average consumptive use across the Great Plains and Intermountain West is 35.8 inches of water per year (Berrada and Reich 2011). For the sake of this rough calculation, this average will be rounded up to 36 inches, or three acre-feet. The United States Department of Agriculture publishes statistics on yield per acre, and alfalfa yields on average about four tons per acre (U.S. Department of Agriculture 2016). As of September 2015, a ton of ‘good’ alfalfa from the mountains of Colorado will produce $140, or ‘supreme’ alfalfa will produce $210 (U.S. Department of Agriculture 2015). Although The relative magnitudes of water usage in irrigation centric counties, such as Montrose and Gunnison Counties, opposed to these are very broad averages, this municipal water use counties, such as Denver or El Paso shows that irrigation uses more water than Colorado’s densest cities. shows yield on an acre-foot of waSource: Ivahnenko and Flynn 2005. ter to be around $180 for ‘good’ Recreational in-channel diversions can only be owned by citalfalfa or $280 for ‘supreme’ alfalfa. ies to create whitewater parks. These recreational users demon- Municipal water users can generate more gross revestrate beneficial use as the water users are generating income and nue on an acre-foot of water because urban users are willing to tourism in the community while water remains in the stream. pay more for water. In Denver, the average household uses about 115,000 gallons of water a year, which is a little over a third of Value of Water: Real Terms an acre-foot of water (Denver Water 2015). An average bill for Since different water users can generate different a city-dwelling Denver water user is $454.88, which means that amounts of economic activity, trade allows both parties to be Denver could make about $1,300 from an acre-foot of water. wealthier. Economically, users who Figure 5: Instream flows in Colorado generate lower economic value from water could trade their water to users who generate higher economic value from water for money. Higher value water users can compensate the individuals with lower value for their lost water and still be better off. The purpose of this section is to roughly show differences in revenues generated from water. Generally, farmers have lower water value, but different crops generate different values. A major crop in Colorado is alfalfa, which is used as feed for Colorado’s large cattle population. Colorado produces about 1.8 million tons of alfalfa every year over several hundred thousand acres (U.S. Department of Agriculture 2012). Alfalfa is useful because it provides a “high Source: Colorado Water Conservation Board 2011.

Figure 4: Withdrawls and use of water in Colorado

Trade is implicitly good for both parties involved: otherwise they would not engage in a voluntary trade. Both parties receive benefits from trade: people who are willing to pay more for water receive the right to use water, and owners of water rights are compensated. Despite these mutual benefits there still are very few transactions. Robert Young (1986) hypothesizes various reasons why there are few water transfers. One reason is “barriers to interstate transfers of rights to water,” which means that although rivers can flow through many states in the West, it is almost impossible for users to trade their right to water between states (Young 1986). Secondly, the “protection of valid third-party interests is too often accomplished by outright prohibition of all transfers with adverse third-party potential” (Young 1986, p.1150). Although irrigation water sales can negatively impact communities without compensation, these negative impacts are not equal across communities. Young (1986) is a supporter of agricultural to municipal water transfers, because of a general “unrealistic and inflated idea of the net economic contribution of irrigation to the economy.” Because the value of farming is so low, maybe it would be better for society to allow everyone to easily sell their water if they so choose (Young 1986). If the public, however, sees an enduring value in irrigation and the value it brings to an economy, another potential part of a solution is to provide information on the third-party impacts of potential water sellers. This can be used to learn how dependent the economy is on agricultural production in the area. I will discuss this more in the next section. Denver Water is clearly generating more revenue than an alfalfa-producing irrigator. This is the reason why many of the water transfers in Colorado are from agricultural users to municipal users. The issue, however, is more complicated than this. Much farming occurs in river basins, such as the Gunnison and Colorado, which are water rich, but are far away from urban areas that have the highest demand for water in Colorado, which are generally within the South Platte and the Arkansas River Basins. To work around this reality, engineers have developed trans-mountain diversions, which utilize pipes and pumps to transfer water from across water basins, generally from the Western Slope to the Front Range. This

is because the majority of the precipitation in Colorado falls west of the continental divide, while most of the state’s population live on the Front Range, as shown in Figure 6. Western Slope stakeholders criticize these water transfers because “when water is diverted to the eastern slope…the only consequences are negative ones from the Western Slope perspective” (Howe & MacDonnell 1985). Although trans-mountain diversions are now a necessary aspect of water management in Colorado, they are controversial because of the negative indirect impacts to communities. The next sections of this report will focus on trading and examines water transfers to find mechanisms that minimize negative indirect effects.

Transmountain Diversions and Third-Party Impacts

The fundamental imbalance of water falling on the Western Slope and the individuals who are most willing to pay for water living on the Front Range necessitates trans-mountain diversions. These diversions are politically contentious, as shown by the Colorado Water Plan’s examination of motivations: “Generally Eastern Slope [roundtables] identify the need...to preserve future development of the Colorado River System” while “Western Slope roundtables express concern regarding the impact on future development on the Western Slope.” These diversions are extremely useful in Colorado’s water planning because they provide water to individuals who need water. However, there are serious concerns about the negative impacts to the basin of origin. This section seeks to examine the effects of previous trans-mountain diversions economically and environmentally. Water transfers, particularly the trans-basin water transfers, are a controversial issue in Colorado because of third-party effects. Negative economic impacts occur in a broader agricultural community because a decline in the agricultural sector from a loss in irrigation water can lead to a broader economic downturn. Farming requires machinery and labor. These costs support businesses and individuals in the area, such as a tractor supply store or laborers, and keep the rural economy running. If a farmer spends a dollar on gasoline, that dollar could go to a worker at that store, who could then purchase food at a grocery store, which could Figure 6: Precipitation and Population Centers in Colorado then purchase vegetables from the farmer. In this way, dollars can stay in a local economy for several purchases and benefit multiple people in a society. If this cycle stops with irrigated agriculture, then all of these industries are negatively impacted, not only farms. When farmers sell their water outright, they receive a single payment and sell their long-term right to their water. This has been done on the Western Slope on a small scale, but has been done on a large scale on the Eastern Slope. This is popularly known as “buy and dry,” which accuses cities of purchasing water rights from irrigated farmland, and then removing all agricultural potential from a dry area. MacDonnell and Rice (1993) recognize the Lower Arkansas Valley’s “loss of sugar beet processing facilities in the 1960s and 1970s… noticeA map of Colorado’s precipitation and population shows the majority of the population live on the Eastern ably weakened the agricultural economy in the Slope, but the majority of precipitation falls on the Western Slope. Source: Burkett Huey, using formatted USGS area” (p.3). The Arkansas Valley water transfers National Hydrography.

occurred because farmers were not able to sell their sugar beets and used the payment from water transfers to pay down farm debt. In the long run, however, the transfer exacerbated the effects of economic depression and shocked the local economy because farmers did not have a constant stream of income without irrigation. Due to economic isolation and a “specialized, marginal” economy, the farmers in the Lower Arkansas Valley did not have opportunities for other jobs and could not easily move to other industries (Howe and Goemans 2003). There were no other industries in the Lower Arkansas Valley after sugar beet farming became uneconomical, so the impacts of a loss of irrigation water had larger impacts on employment and related industry employment. It is important to note that these effects are not singular. In the more prosperous South Platte region, in which irrigators had other employment options, water transfers did not have as severe of an effect on the local economy and, in fact, may have benefited the region by shifting production from less productive uses to more productive uses (Howe and Goemans 2003; Thorvaldson and Pritchett 2006). These effects are generalized, and would be much more useful if there were ways to quantify the effects of water transfers in units that are easy to understand. Several modelers use input-output analysis for measuring the dollar value of the direct losses to a farmer, and indirectly to the related industries (supply stores, etc.). Howe and Goemans (2003) compare the negative impacts from these water transfers in simple dollar values per acre-foot of water lost and then per capita, as seen in Figure 7.

ty in the Arkansas Valley, water transfers can severely damage a local economy (Taylor and Young 1993). In Figure 7, the difference between the direct impacts and direct plus indirect impacts shows the third-party effects of water transfers. If an area is reliant on irrigation water for farming, and has few other opportunities for business, Howe and Goemans (2003) suggest “extra market assistance to basins of origin ….The set of criteria to be considered by the transfer agencies in approving, modifying, or disapproving water transfers should be expanded to include consideration of the secondary economic and social costs imposed on the basin of origin,” because the uncompensated losses of particular rural communities can be devastating. These strong negative impacts in the Arkansas Valley, and particularly in Crowley County, show the importance of creating a sustainable water transfer mechanism, one that allows municipalities access to water and positively impacts rural society. In addition to negative economic effects of water transfers, there are negative environmental third-party effects of trans-mountain diversions. One example is the 15-Mile Reach in Colorado—the 15 miles of the Colorado River east of Palisade to the confluence of the Gunnison River and the Colorado River. This area is critical habitat for the four endangered fish in Colorado: the Colorado Pikeminnow, Razorback Sucker, Humpback Chub and the Bonytail Chub. A major concern of USGS and USBR is keeping endangered species alive through maintaining suitable river flows. Flows have dropped below these minimum flows during drought conditions, because of the Colorado River’s trans-mountain ap-

Figure 7: Impacts of water transfers in the South Platte and Arkansas Basins, Colorado

Figure 7 shows the direct and indirect impacts of water transfers in the Arkansas Valley and the South Platte. The indirect effects of water transfers in the Arkansas Valley are much higher than in the South Platte. Source: Howe and Goemans 2003.

Figure 7 shows the direct negative effects of a water sale. Note that only the farmer receives any payment for this water, so the indirect effects to non-water owners are not compensated for their lost potential revenue in this model. This also only shows the short run impacts, before communities have the time to “react to a reduction in agricultural output” (Howe and Goemans 2003). The farmers used the revenue from water sales to pay off longstanding farm debt, so they would be presumably better off financially, but the money came in one lump sum, which reduces personal income as shown in Figure 7 in the long run. Importantly, this reduces the number of employees in the Arkansas River Valley by 35.26 per 100,000 people in direct farm jobs. There is a much smaller effect in the South Platte due to the robust economy and the ability for farmers to adapt more quickly. In a specialized agricultural area, such as Crowley Coun-

propriation and the heavy irrigation, which has been a challenge. Cooperative management may be a potential solution to these environmental problems. In the case of the 15-Mile Reach, several stakeholders worked together to provide endangered fish critical habitat. The USBR used a timed water release from Ruedi Reservoir for higher flows (Bassi and Kowalski 2015). Several irrigators reduced their water consumption in return for financial assistance with water projects. Cooperative management has been essential to maintaining the 15-Mile Reach as quality habitat for fish. The challenge to keep endangered species alive under population growth scenarios, which demand trans-mountain diversions and intensive irrigation, will continue to strain the species dependent on adequate flows in the 15-Mile Reach and other critical environmental habitats, but we have advanced methods of regulating rivers to benefit endangered species.

Water Transfers that Minimize Third-Party Effects

Water transfers are an effective way of getting water to individuals who are willing and able to pay the most for water, but should be designed to minimize negative impacts. The Statewide Water Supply Initiative recognizes that Colorado’s water needs are going to expand because of our growing population. Trade is good when it allows individuals without access to water in a state where virtually all the rivers are over appropriated. Trade can be good for the individuals losing the water, if they need a more liquid asset, such as cash or a stream of income. What are the ways to design a water transfer to minimize the third-party effects? What, reasonably, can be done to prevent sustained economic downturn with a transfer of irrigation water to municipal users? One answer is that a transfer does not necessarily need to be a sale. One way of transferring water that addresses third-party impacts is to use a lease to provide irrigators with a constant stream of income, and allows continued rural ownership of water rights. Although these are more expensive to municipalities, irrigators are more comfortable transferring large quantities of water under a lease: leases account for up to 90% of water volume transferred in the West (Brewer et al. 2008). Water leasing is increasingly being used to acquire water for long-term purposes, which shows that water planners are using leases for long-term plans, rather than quickly meeting excess demand (Brewer et al. 2008). Water leasing is a relatively new method of transferring water from one user to another, but it is a useful technique for large water volume transfers. Another method to transfer water from agriculture to municipalities that minimizes third-party effects is a rotational fallowing agreement. Rotational fallowing is a program in which some land is used for farming, while others are fallowed and the water from the fallowed farms is sent to cities. The next year, a different group of farmers in the same area will fallow their land and send an equal amount of water to a municipality. Fallowing part of an agricultural community, rather than the entire community, makes indirectly related industries more able to survive, because the reduction in demand for their goods is smaller.

Case Study: Arkansas Valley Super Ditch One attempt to utilize a rotational fallowing agreement in Colorado is the Arkansas Valley Super Ditch. To ensure agricultural concerns about buy-and-dry practices are mitigated, the Super Ditch specifically maintains that transfers are temporary transfers, as water leases. This mitigates concerns so farmers who do not want to farm during a given year retain the ability to do so in the future. Transfer obligations can be shared, so that multiple farmers can divide a transfer amongst themselves if they so choose. McMahon and Smith (2012) examine the effects of the Super Ditch along with the proposed lease payment, and found that the lease payment ($1,510 per hectare lost) exceed the total direct and indirect net losses ($1,172 hectare out of production) on a yearly basis. The lease payments change the nature of the economy slightly because spending changes from agricultural goods to consumer goods. Additionally, in the Arkansas River Valley dryland farming is possible, which further increases the net benefits to irrigators and reduces the impact on related agricultural industries. Therefore, the irrigators and the communities surrounding irrigators are better off by trading

their water because the system is “turning the farmer’s water into a second cash crop” (McMahon and Smith 2012). Although the legal challenges of water transfers persist, the Arkansas Valley Super Ditch is a transfer mechanism that works for both partners.

Case Study: Palo Verde The agricultural Palo Verde Irrigation District in Southern California has run a successful experiment with rotational fallowing. Southern California’s Metropolitan Water District needed to find water in the early 2000s to serve Los Angeles’s rapidly growing population. One way they worked with this issue was developing a rotational fallowing agreement, which transfers between 25,000 and 118,000 acre-feet to Los Angeles at a price of $738 per acre fallowed and adjusted for inflation (Metropolitan Water District of Southern California 2013). This program is voluntary, and makes farming generate higher yields during the non-fallowed years because the land recharges (Metropolitan Water District of Southern California 2013). Additionally, this program has popular support because farmers view it as an “opportunity for the area’s economy on the grounds that it helps stabilize farm incomes,” which is important because farmers can be resistant to water transfers (Hanak 2003, p.72). The Palo Verde program deliberately mitigates some of the third-party impacts from a reduction in irrigation water through limiting the size of the program to fallowing a maximum of 28% of land in the Palo Verde Irrigation District (Hanak 2003; Metropolitan Water District of Southern California 2013). The government limits the size of the rotational fallowing program so that enough irrigators farm to keep related businesses thriving. This program has been a success, as the value of agriculture in the Palo Verde Valley has increased in the past years (Riverside County Agricultural Commissioner 2014). The city of Los Angeles wins because this transfer mechanism allows the municipality access to water, and the city has a high enough value of water that it can compensate the irrigators and the community for potential economic damages.

Conclusion

Water transfers are a powerful tool to ensure the West is prepared for its imminent population growth. Since most of the American West is semi-arid, society needs to make decisions on who gets how much water, and the most efficient solution is likely not the original water appropriation. Water transfers are a necessary way to allow the highest value water users access to water, which is good for society as a whole. Water transfers can be designed to ensure that both rural communities and municipalities can end up better off through rotational fallowing agreements and water leasing. These mechanisms ensure that irrigators maintain a stream of income and a continuous flow of money into the economy. They also avoid a permanent outright loss of rural water rights. Secondly, the impacts of removing a specific amount of water can be estimated before the transfer, and can allow communities to prepare for economic change before the water transfer occurs. Additionally the effects of the lease payment can be quantified and then used as evidence for or against any particular water transfer. Thirdly, water transfers need to recognize and mitigate concerns of current water rights holders to prevent future issues in water transfers. Third-party effects of water transfers are

real concerns that need to be continually addressed in most future water transfers. But, well-designed water transfers have the power to implement a positive outcome for the buyer, seller and communities. This is important because Colorado’s Front Range population is going to continue to rapidly grow and needs water access, but rivers in Colorado are already over-appropriated. Water trans-

fers that do not leave the community better off generate political resistance, which can prevent water transfers from occurring (Young, 1986). Well-designed water transfers leave the community of origin better off, which will make Colorado’s growth easier.

Bibliography Balliette, J., & Torell, R. “Alfalfa for Beef Cows.” University of Nevada, Reno. Retrieved from https://www.unce.unr.edu/publica tions/files/ag/other/fs9323.pdf. Bassi, L., & Kowalski, T. 2015. Colorado Water Conservation Board to Release Ruedi Reservoir Water for Endangered Fish. Retrieved February 5, 2016, from http://dnr.state.co.us/SiteCollectionDocuments/News/CWCBEndangeredFish.pdf. Berrada, A., and Reich, D. 2011. Alfalfa Irrigation Water Management. Pages 127-134 In Intermountain Grass and Legume Forage Production Manual, 2nd Edition, Agricultural Experiment Station and Extension Technical Bulletin TB11-02, Colorado State University, Ft. Collins, CO. Brewer, J., Glennon, R., Ker, A. and Libecap, G. 2008. “2006 Presidential Address Water Markets In The West: Prices, Trading, And Contractual Forms,” Economic Inquiry, Western Economic Association International, vol. 46(2), pages 91-112, 04. Colorado Water Conservation Board. “Colorado’s Water Plan.” July 1, 2015. Accessed July 23, 2015. https://www.colorado.gov/ pacific/sites/default/files/FINAL-2ndDraftClean-Appendices-2015.pdf. ---. “Colorado’s Water Supply Future.” 2011. Accessed July 23, 2015. http://cwcb.state.co.us/water-management/water-supply-plan ning/Documents/SWSI2010/SWSI2010.pdf. ---. 2011. Map of Streams Included in Colorado’s Instream Flow Program. Colorado Department of Natural Resources. ---. “Interstate Water Allocation.” Accessed July 24, 2015. http://cwcb.state.co.us/legal/documents/interstatecompacts/compact facts.pdf. Denver Water. 2015 Water Rates. Retrieved February 05, 2016, from http://www.denverwater.org/BillingRates/Rates Charges/ 2015-rates/. Hanak, E. 2005. “Stopping the Drain: Third-party Responses to California’s Water Market.” Contemporary Economic Policy 23(1) pp. 59-77. Hobbs, G. (2004). A Citizen’s Guide to Colorado Water Law. Retrieved from http://www.colorado.edu/geography/class_homep ages/geog_4501_s14/readings/CG-Law2004.pdf. ---. Hobbs, G. 2015. “Citizen’s Guide to Colorado Water Law.” Denver, Colorado: Colorado Foundation for Water Education. Howe, C.W., and Goemans, C. “Water Transfers And Their Impacts: Lessons From Three Colorado Water Markets.” Journal of the American Water Resources Association J Am Water Resources Association: 1055-065. Accessed July 23, 2015. http:// www.kysq.org/docs/HoweGoemans.pdf. Ivahnenko, T., and Flynn, J.L., 2010, Estimated withdrawals and use of water in Colorado, 2005: U.S. Geological Survey Scientific Investigations Report 2010–5002, 61 MacDonnell, L. J., & Howe, C. W. (1985). “Area-of-origin protection in transbasin water diversions: an evaluation of alternative approaches.” U. Colo. L. Rev., 57, 527. MacDonnell, Lawrence J., and Teresa A. Rice. “Agricultural to urban water transfers in Colorado: an assessment of the issues and options.” Research report series (University of Colorado, Boulder. Natural Resources Law Center) (1993). McMahon, T. and Smith, M. 2012. “The Arkansas Valley ‘Super Ditch’--An Analysis of Potential Economic Impact.” Journal of the American Water Resources Association 49, no.1: 151-162.

Merriman, D., & Janicki, A. (2005). “Colorado’s Instream Flow Program—How it Works.” Retrieved February 05, 2016, from http://cwcb.state.co.us/environment/instream-flow-program/Documents/WhyISFProgramWorksGoodForCOpdf.pdf. Metropolitan Water District of Southern California. 2013. “Palo Verde Land Management, Crop Rotation and Water Supply Program.” http://www.mwdh2o.com/PDF_NewsRoom/6.4.2_Water_Reliability_Palo_Verde.pdf Riverside County Agricultural Commissioner (2014). Palo Verde Valley Acreage and Agricultural Report. Retrieved February 5, 2016, from http://www.rivcoag.org/Portals/0/Publications/Crop Reports-EntireCounty/2014 PV District Crop Report.pdf. Taylor, R. G., and Young, R. A. Economic Impacts of Agriculture-to-Urban Water Transfers a Case Study of Crowley County, Colorado. Fort Collins, Colo.: Colorado Water Resources Research Institute, Colorado State University, 1993. Thorvaldson, Jennifer, and James Pritchett. “Economic Impact Analysis of Reduced Irrigated Acreage in Four River Basins in Colorado.” Colorado Water Resource Institute Completion Report No. 207 (2006). US Bureau of Reclamation.”Colorado River Basin Water Supply and Demand Study.” Accessed July 24, 2015. http://www.usbr. gov/lc/region/programs/crbstudy/finalreport/index.html. U.S. Department of Agriculture. “Colorado Hay Report.” (n.d.). Retrieved February 05, 2016, from http://www.ams.usda.gov/mn reports/gl_gr310.txt. USDA-CO Dept of Ag Market News. U.S. Department of Agriculture “2012 Census Volume 1, Chapter 1: State Level Data.” 2012. Accessed July 23, 2015. http://www. agcensus.usda.gov/Publications/2012/Full_Report/Volume_1,_Chapter_1_State_Level/Colorado. U.S. Department of Agriculture. “Quick Stats Tool.” Web. 08 Feb. 2016. http://www.nass.usda.gov/Quick_Stats/. Watson, R., & Neibauer, M. 2014.Water conservation in and around the home. Colorado State University Agricultural Extension. Woodhouse, C. A., Gray, S. T., & Meko, D. M. (2006). Updated streamflow reconstructions for the Upper Colorado River Basin. Water Resources Research Water Resource. Res., 42(5). Retrieved from http://u.arizona.edu/~conniew1/pa pers/2005WR004455.pdf. Young, Robert A. “Why Are There so Few Transactions among Water Users?” American Journal of Agricultural Economics. 46(5) 1986, 1143.

Jonah Seifer

A Paradigm Shift in Water Management Among Colorado Farmers and Ranchers by John Jennings, 2015-16 State of the Rockies Project Fellow With the ongoing drought, projected population growth, and the impending effects of a changing climate, the arid Rocky Mountain region must reexamine its relationship with water. Although state water planning initiatives, such as the Colorado Water Plan, basin roundtables, and numerous local and national nongovernmental associations address critical water issues in the West, many of these initiatives seem to boil down in large part to economics and oversimplify the complex ways that diverse stakeholders value water. While the importance of the economy and jobs is undeniable and should not be ignored, the lack of other values incorporated into discussions about water policy must be recognized. Introduction

Water management has traditionally varied across the world not only because of technology, law, geography, and climate, but culture and values as well (Groenfeldt 1991, 2013; Linton 2010; Stefanovic 2015). Appreciation of this natural variation in management, though, has been wanting as numerous water scholars have argued for greater recognition of the social side of water management (Allan 2005; Brown and Schmidt 2010; Cortner and Moote 1994; Gleick 2000; Groenfeldt 2013; Linton 2010; Pahl-Wostl et al. 2008; Pahl-Wostl et al. 2010; Pinkham 1999; Schoeman et al. 2014; Wolff and Gleick 2002). Although many authors argue that the paradigm which has governed water management needs to and is changing, many differ in how they describe this change. For example, Schoeman et al. (2014), Pahl-Wostl et al. (2008), and Pahl-Wostl et al. (2010, 8) describe the receding water management paradigm as a command-and-control approach where “control is exerted centrally, adhering to rigid and detailed plans for the fulfilment of established goals.” This approach “infers that management interventions can be optimised and their impact, in principle, be fully calculated” (Pahl-Wostl et al. 2010, 8). Instead of describing this paradigm as command-and-control, Pinkman (1999) and Wolff and Gleick (2002, 1, 5) describe a newer “soft” path for water management in contrast to a traditional “hard” path of water management, which “relies almost exclusively on centralized infrastructure and decision making: dams and reservoirs, pipelines and treatment plants, water departments and agencies” and “is governed by an engineering mentality that is accustomed to meeting generic needs.” Finally, Linton (2010) and Krause and Strang (2016) provide a more conceptual perspective in their description of how we understand water and natural resources generally. They point to a change from regarding water as an “object of social and cultural production” to

considering “water as a generative and agentive co-constituent of relationships and meanings in society” (Krause and Strang 2016, 633). Through this, they argue for a broad shift towards seeing the relationships between the technical, environmental, social, and other aspects of water management. The shift, which all these authors point to, demonstrate that there is an emerging water paradigm. By virtue of the state’s semiarid climate, interstate compact agreements, and projected population growth over the next few decades, how Colorado approaches water management and stands in this changing paradigm are of significant interest as we move forward with the Colorado Water Plan. My capstone project focuses on the perspectives of agricultural water users in the Gunnison Basin as this group is a significant stakeholder in water management. Although conversations covered topics well-known to those involved in water management in Colorado, many themes related to water management paradigms were discussed and deserve explicit consideration. Of those themes, how farmers and ranchers saw various aspects of agricultural water use and water management as interconnected or separate stood out as a particularly informative of how they saw the nature of water, the goals of water management, and the best approaches to reach these goals. In the sections that follow, I offer further background on the dominant, command-and-control water management paradigm of the twentieth century; discuss the new, developing paradigm for water management; illustrate the influence of these paradigms in the American West; then consider this shifting outlook on water in relation to the central themes that emerged from my interviews with Gunnison Valley farmers and ranchers. I conclude that despite a number of opinions, which reflect the emerging paradigm, application of this paradigm varies greatly between people and topic, and can be more integrated into how we think of water management.

John Jennings is a Fellow for the 2015-2016 State of the Rockies Project. John is originally from Gainesville, Georgia, and he came to appreciate the outdoors through his experiences backpacking and camping with the Boy Scouts. He is an Independently Designed Major in Environmental Philosophy and Practice and will graduate in 2016. For the State of the Rockies, John is focusing his research on the ethics of water use. This research focus stems from his interest in philosophy and the natural world. In his free time, John enjoys hiking, throwing pottery, and cooking.

The Receding Water Management Paradigm

Though use of the word paradigm comes from Thomas Kuhn’s work defining scientific paradigms, scholars and professionals have adopted the term to describe shifts in water management. Pahl-Wostl et al. (2010, 839) paraphrases Kuhn in writing that a scientific paradigm is a “consensus on (1) what is to be observed and scrutinized, (2) the kind of questions that are supposed to be asked and answers probed for in relation to this subject, (3) how these questions are to be structured, and (4) how the results of scientific investigations should be interpreted.” As such, a paradigm refers to how we ontologically and epistemologically understand the world (Pahl-Wostl et al. 2010). While water management paradigms do not mirror scientific paradigms exactly and some authors provide their own definitions, Kuhn’s work is an important foundation from which they all depart. This shared foundation is helpful as those arguing that there is or should be a paradigm shift in water management come from different perspectives and consequently emphasize different aspects and refer to different catalysts of this shift. Despite this, the shifts authors refer to complement each other. They all point to a similar shift in water management over the last century as the environmental and social aspects of water management have been overlooked by a short-sighted, technical approach to water management. Schoeman et al. (2014) describe the receding water management paradigm as command-and-control management. They point to stationarity (“the idea that natural systems fluctuate within an unchanging envelope of variability”) and the belief that any changes in natural systems can be easily reversed as basic assumptions for this type of management (Milly et al. 2008, 573). With natural systems seen as essentially stable and controllable, water management aspires to “maximize resource exploitation by reducing natural variability” (Schoeman et al. 2014, 378). Under this paradigm there is little regard for environmental consequences because natural systems are seen as immovable at a basic level. The water management paradigm Schoeman et al. (2014) describe is similar to Cortner and Moote’s (1994) description of a traditional paradigm guided by the goal of sustained yield. This paradigm holds “that the best use of resources is human consumption, and the purpose of resource management should therefore be to provide a continuous supply of market-oriented goods” (Cortner and Moote 1994, 168). While Cortner and Moote (1994) point to the development of market-oriented goods, this dynamic similarly relies on the idea of stationarity that Schoeman et al. (2014) point to—insofar as nature is seen as immovable, we can continuously extract resources for human consumption without any consequences. Pinkman (1999) and Wolff and Gleick (2002) characterize water management over the last century as following the “hard” path of water management. This approach is oriented towards supply-side solutions (rather than demand-side solutions) and relies heavily on large, centralized infrastructure. Wolff and Gleick (2002) and Gleick (2000) point to the assumption that economy and population are dependent on increased water supplies to meet and promote growth as rationalizing this approach. In addition to the examples mentioned above, there

are more authors who point to a shift in water management in recent history. A common theme among these authors is recognition that the definition of water and thinking behind water management have been limited. We have thought of water as merely a substance available for human consumption, economic productivity, or as some other singular aim and overlooked the complexity of water’s connections and significance in environmental, social, political, cultural and other important areas. Linton (2010) captures this, which perhaps is the most fundamental and significant element of these descriptions of water management paradigms, in what he calls modern water:

One virtue of modern water is that it is not complicated by ecological, cultural, or social factors. This has made it relatively easy to manage. Another virtue of modern water is its universality – all waters, in whatever circumstances they may occur, are reducible to this abstraction. A third virtue is its naturalness – not only may all waters be reduced to H2O but the product of this reduction is understood to constitute water’s essence, its basic nature (Linton 2010, 8).

Linton (2010, 14) goes on to say, “in essence, modern water is the presumption that any and all waters can and should be considered apart from their social and ecological relations and reduced to an abstract quantity.” He points as far back as the seventeenth century to the Scientific Revolution, the Enlightenment, and the development of Cartesian dualism as the origins of faith in a totally rational mind and the objectivity of science, which led to this abstraction and isolation of water from its ecological and social ties. What this effectively leads to is the simplification of water. We no longer understand as context-informed, but abstract it from its significance socially, culturally, environmentally, and in other ways. In ignoring or underappreciating these connections, water is reduced to being regarded strictly as a resource, commodity, or some other (overly) simple essence. This mindset has pervaded water management over the centuries through various paradigms, but the underlying element of modern water has begun and desperately needs to be replaced as Linton and others’ arguments attest to. Finally, it is important to note that though some of the authors above include ethics in their description of changing water management paradigms (such as Cortner and Moote’s use of utilitarianism, but also arguments by Brown and Schmidt [2010], Groenfeldt [2013], and Groenfeldt and Schmidt [2013] for more explicit consideration of values in water management), this paper will focus on the epistemological and ontological aspects of paradigms, as Linton does above. The main reason for this is that while how we define and understand the world and our place in it has ethical implications, paradigms are not necessarily exclusive in the system of values they engender—newly recognizing the complexity and interconnected of the world does not necessarily mean that an utilitarian ethic cannot inform our decisions. Rather, it means that this ethic merely applies to a more complex and interconnected system.

The Emerging Water Management Paradigm

To explain our movement away from modern water, Linton (2010, 50) points out that “the more we consider how ecosystems function, how the social outcomes derived from water

and water services are uneven, and how people in different places and circumstances relate differently to water, the more difficult it becomes to sustain any simple, positive identity for water, whether as commodity, resource, public good, or chemical compound.” In a similar manner, Pahl-Wostl et al. (2010, 840) argue that in addition to other influences, “the transformation [of the water management paradigm] has been driven by the emergence of postmodernism as a prevailing cultural and intellectual mission, increased understanding of complex systems phenomena…and a weakening of the previously privileged role of ‘science’ in knowledge production.” Linton and Pahl-Wostl both point to the fact that there are multiple ways to perceive and value water and that this has been reinforced by our growing recognition of the complexity of systems—particularly social and environmental systems. In addition to this conceptual explanation Pahl-Wostl (2010, 840) says, “paradigm shifts typically occur when existing methods and models consistently fail to describe or account for our experiences, or when the interventions we base on them fail to generate anticipated benefits.” As such, the failure of the receding paradigm is perhaps most easily recognized in other environmental issues where the social dimensions of these problems are more widely recognized. Linton (2010, 193) points to “climate change, desertification, deforestation, and biodiversity loss” as examples of newly recognized connections between society and nature. We now readily recognize the impacts of our eating and driving habits on climate change and desertification, and the impacts of development and unsustainable logging on deforestation and biodiversity loss. Water management trails these environmental issues in the changing recognition of our relationship with water. Again, though there are differences among authors in how they describe both the receding and emerging water paradigms, their descriptions are complementary. The “hard” path that Wolff and Gleick (2002, 1) describe is supplemented with the “soft” path of “decentralized facilities, efficient technologies, and human capital”; stationarity and an easily manipulated nature are rejected in favor of recognizing a complex and dynamic natural system (Schoeman et al. 2014); and managing for “a continuous supply of market-oriented goods” is replaced by managing for the sustainability of ecosystems (Cortner and Moote 1994, 168). Gleick (2000, 131) points to six major principles common among those “rethinking water policy and putting greater emphasis on development principles that reflect environmental, social, and cultural values” (see Table 1).

Table 1: Principles in Rethinking Water Policy • Basic human needs for drinking water and sanitation services must be met. • Basic ecosystem needs for water must be met. • The use of non-structural alternatives to meet demands must receive higher priority. • Economic principles must be applied more frequently and reliably to water use and management. • New supply systems, if needed, must be flexible and maximally efficient. • Non-governmental organizations, individuals, independent research organizations, and other affected stakeholders must all be involved in water management decisions. Source: Gleick 2000, 131.

It is important to note that Gleick’s point that economic principles need to be applied more frequently and reliably to water use and management includes an effort to account for “non-market environmental and social costs” and is at least in part a response to a history of water projects in the United States which had questionably “high discount rates, low-interest loans, and transfer of costs to non-dam parts of water developments” (Gleick 2000, 130). Otherwise, this list is fairly comprehensive of the points raised by other authors. This list indicates a paradigm shift in how we understand water. The idea that water and natural resources are intertwined with social systems underlies all of the points that Gleick makes. We have to acknowledge that lack of access to water for drinking and sanitation is a political failure rather than a technological one; we directly impact ecosystems and the ecosystem services they render; and all stakeholders must be considered as water provides a multitude of benefits. Linton (2010) and Krause and Strang (2016, 633) argue that we should not think of water as an “object of social and cultural production,” but as “a generative and agentive co-constituent of relationships and meanings in society.” This means that water, and more broadly nature, is not only directly connected with our social sphere, but also influences it. We can see this through climate change and how efforts to reduce emissions has created new collaborations and policies not only in the United States, but also internationally. We must recognize these far-reaching connections and the complexity and importance of resource management if water and other natural resources are to be appropriately managed.

Water and Water Management Paradigms in the West

Although water management paradigms operate on a global scale, they are also relevant to the western United States and Colorado. Linton (2010) points to W. J. McGee, the president of the American Association for the Advancement of Science (1897—1898), American Anthropological Association (1902—1912), and National Geographic Society (1904—1905), and regarded as “the chief theorist of the conservation movement,” as an example (Hays 1987, 102). McGee provides a clear example of the modern water paradigm when he says: No more significant advance has been made in our history than that of the last year or two in which our waters have come to be considered as a resource – one definitely limited in quantity, yet susceptible of conservation and of increased beneficence through wise utilization. The conquest of nature… is now extending to the waters on, above and beneath the surface. The conquest will not be complete until these waters are brought under complete control (McGee 1909; quoted in Linton 2010, 150). In addition to how this influential person perceived water and water management, one merely has to think about the number of dams or transmountain diversions built in the West during the twentieth century to see this paradigm operating in the United States. Naturally, though, there are nuances to places and circumstances that distinguish them within this broader discussion. In the West, the doctrine of prior appropriation stands out as a defining feature of water management that

both embodies and distinguishes itself from the water management paradigm of the last century. Prior appropriation is a system that grants individuals a property use right by order of appropriation, i.e., the first to appropriate water for a beneficial use is the first in line to receive water every year. This contrasts with the twentieth century water paradigm to a certain extent. Instead of water being distributed and managed exclusively by a central agency which determines the distribution of water use, prior appropriation has granted individual water rights holders the ability to determine the landscape of water use in the West—there is no reason why water cannot be appropriated by an individual if they are putting it to a beneficial use under Colorado law. Furthermore, this system has created its own distinct culture through the assurance of this individual right and its participatory nature. However, this is not to say that prior appropriation has not operated largely in line with the receding water management paradigm. The confines of prior appropriation have narrowly defined water for more than a century. In order to appropriate water, one has to prove they are putting it to a beneficial use. Though this is a reasonable and necessary requirement in our arid climate, how beneficial use has been defined has reflected a narrow set of values for many decades. Despite prior appropriation beginning in the 1860s, it was only in 1973 that the State Legislature recognized the need of water for the environment through the state’s instream flow program and the benefit of recreational in-channel diversions in 2001 (Hobbs 2004). While these changes indicate a shift towards recognizing environmental and cultural values, the Colorado Water Conservation Board’s web page on nonconsumptive water needs (i.e., environmental and recreational) demonstrates how ingrained paradigm of the last century as it begins by explaining the significance of these needs in economic terms. Nonconsumptive needs “infuse between $7 and $8 billion into the state’s economy and employ about 85,000 people across Colorado,” and “continue to draw in businesses and new residents to Colorado, further underscoring their importance to the state’s economy” (“Nonconsumptive Needs (Environmental and Recreational)”). This economic justification reflects the largely economic definition of water which has informed beneficial use throughout prior appropriation. Lastly, regarding water as a property right to be bought and sold aligns with the receding paradigm as this lends itself to understanding water strictly as a resource. From this point of view, water’s value is thought of abstractly as a quantity— the environmental, cultural, social dynamics of water are not directly acknowledged. This simplification of water has played into the buy-and-dry practices (which typically consists of municipalities buying agricultural water rights and subsequently leaving once-productive land barren) which have subverted communities in Southeast Colorado. One farmer I spoke to described one of these towns he visited a few years ago saying, “the only light on in that farming community was a Pepsi machine. . . . They [municipalities] absolutely took communities and left them vacant, and the state of Colorado spent millions of dollars trying to find ways to provide employment to those areas that sold their water” (Interview by author 2015).

While the receding water management paradigm has characterized prior appropriation and water management in Colorado, the examples just mentioned also indicate how we are moving away from this mindset. Though economics may still dominate how we value water, the fact that the definition of beneficial use has expanded to include nonconsumptive uses indicates a broader recognition of the value of water—it is no longer thought of as a simple equation of consumption and value—and the infamy of buy-and-dry practices has led to innovative alternatives and indicates that we recognize more than just the economic value of water.

Methods

For my research I focused on agriculture in the Gunnison River Basin. This area was chosen because of its location and the general significance of agriculture in the area. Colorado is regarded as the “headwater state” in the Colorado River Basin because of the number of headwaters and the volume of water that originates here every year (see Figure 1, Figure 2). The Gunnison Basin lies on the Western Slope of Colorado where the majority of water for the Colorado River Basin originates. Despite the fact that the Gunnison Basin comprises only a small fraction of the Colorado River Basin’s geographic area, it “produces approximately one-sixth of the surface water for the whole Colorado River Basin” (“The Gunnison River Basin: A Handbook for Inhabitants” 2013, 8). Given that both downstream states and the Front Range depend on water that originates on the Western Slope, farmers and ranchers are concerned about growing water demands from these areas. While only 5.5 percent of the land in the Gunnison Basin is classified as planted or cultivated (the majority is owned by the federal government), agriculture has had a presence in the basin since the 1870s and remains “economically

Figure 1: The Colorado River Basin

The Gunnison River Basin is circled in the oval. Reprinted from “The Gunnison River Basin: A Handbook for Inhabitants” 2013.

important in every part of the Gunnison River Basin” (Colorado Water Conservation Board 2015; “The Gunnison River Basin: A Handbook for Inhabitants” 2013, 13).

Figure 2: Average Annual Precipitation in Colorado

The average annual precipitation on the Western Slope is much greater than that of the Eastern Slope (continental divide highlighted in white). Data Source: PRISM Climate Group and Coordinated effort between USDA-NRCS, USGS, and the EPA.

As a part of the Rocky Mountains, the basin’s elevation, rainfall, and soil quality vary greatly and affect agriculture. In higher elevations above ~7,000 feet with shorter growing seasons, ranchers grow hay and raise cattle and sheep (“The Gunnison River Basin: A Handbook for Inhabitants” 2013). At lower elevations, farmers are known for growing award-winning fruit, Olathe Sweet Corn, and other grains and vegetables (“The Gunnison River Basin: A Handbook for Inhabitants” 2013). I focused on how farmers and ranchers perceive water management in order to understand where Colorado might be in this changing water paradigm. Although agriculture is just one stakeholder in water management, it is very significant to water use and management in Colorado and the Western United States. Aside from producing food for the state and internationally, agriculture in Colorado has some of the most senior water rights in the state (senior to both municipalities on the Front Range and the 1922 Colorado River Compact) (United States 2014), provides important habitat for wildlife, is a significant economic driver in Colorado (Colorado Water Conservation Board 2015; “Food & Agriculture”), and accounts for eighty-nine percent of water consumption in Colorado (though many of the farmers and ranchers I spoke to point out that agriculture consumes less than people think due to return flow) (Colorado Water Conservation Board 2015). These are just a few of the reasons why agriculture is important and significant when it comes to water management. I also interviewed farmers and ranchers and not necessarily water professionals because including the voices of farmers and ranchers aligns with the principle of collaboration, which many authors point to as fundamental to the emerging paradigm (see Table 1). In fact, many of the people I talked to were a part of the Gunnison Basin Roundtable or active in other ways with water management. In contrast to a more top-down approach, though, allowing parties affected by water decisions to have a say not only creates a more democratic and just management system that is more likely to adequately address social dimen-

sions of water management, but it is also arguably more efficient as it decreases the likelihood of plans having to be amended or changed later (Stefanovic 2015). As such, understanding the values of those who use water is critical to good water management. To understand how farmers and ranchers think about water and water management in Colorado, I developed interview questions around “the nature of the system being managed, the goals of management and the ways in which these goals can be achieved” (Pahl-Wostl et al. 2010, 840) (see Appendix). Both Pahl-Wostl et al. (2010) and Schoeman et al. (2014) point to these three things as assumptions that define and reveal a management paradigm. These three aspects of a management paradigm help distinguish the ideas and themes previously mentioned that characterize the emerging paradigm. The ideas which largely defining the “nature” of the emerging paradigm are the recognition of an interconnected and complex world where people are no longer conceived as separate from a totally predictable nature. Recognizing this mutually dependent and not totally predictable nature of water, the goals of water management are sustainability and a broad spread of benefits. The best approach to achieve these goals entails giving greater attention to environmental and social dimensions of water management than we do now through adaptive and collaborative practices. It should be noted that this description merely includes some of the more salient aspects of the emerging paradigm as they relate to Pahl-Wostl’s definition of a management paradigm and is by no means comprehensive. I conducted semi-structured interviews with ten farmers and ranchers with questions developed around these ideas. To respect the privacy of participants, the names of all interviewees are withheld in this paper. The questions I developed were intentionally kept broad so that any assumptions I had about water management would affect people’s answers as little as possible. As such, how people interpreted the questions and what examples they used varied, but there were also many consistencies between the interviews. In particular, the degree of interconnectedness and the implications of this for the goals and best approach to reach these goals stood out. These three aspects of water management were primarily discussed in terms of the role of agricultural water use, priority of different beneficial water uses, and the collaborative efforts of the Gunnison Basin Roundtable.

The Nature of Water and Water Management

When I first started to learn about water in Colorado, I repeatedly heard about the “80-20 split” between the eastern and western slopes of Colorado where 80 percent of the water in Colorado falls on the Western Slope, but 80 percent of Colorado’s population lives on the Eastern Slope. Framed in this way it seems that more water should be diverted to the Front Range. However, defining water’s benefit in terms of Colorado’s population is reductive of the complexity of water in Colorado and neglects the varying landscape and water demands across Colorado and beyond. In many ways the farmers and ranchers I spoke with did not simplify or overlook various connections or simplify water and water management such as the “80-20 split” does. That is not to say, though, that the farmers and ranchers

I spoke with expressed opinions totally consistent with the emerging water management paradigm. How they talked about water management and reflected either the emerging or receding paradigms varied from topic to topic and person to person. One of the best examples of this lay in their views on the connections with and benefits of agricultural water use. Unsurprisingly, when I asked most farmers and rancher about the role or benefit of agriculture, they pointed to food. Though food was the first (and sometimes only) identified benefit of agriculture, many would also point to other benefits such as the environment, economy, and culture. This indicated a difference in how deeply each person connected agriculture with other water uses and benefits as with the emerging paradigm, or with agriculture serving a single purpose as with the receding paradigm. This is not to say, that any talked about agriculture as if it were in a total vacuum. When talking about their own water, for instance, they all pointed to downstream states, the Front Range, and environmental flows as creating pressure on their own farm water. The differences, however, lay in how readily their perspective related to theme of interconnectedness. Even when pointing to the importance of food production over and above all other benefits, many farmers and ranchers saw economics and national food security as inherently related to food production. One rancher said, “if we can’t divert our water to raise hay, to raise cattle, to contribute to the nation’s food supplies, we’re . . . bringing in food from Brazil or Mexico that—they don’t even watch what the animals eat.” They added to this that, “there’s a direct economic contribution [by agriculture in Colorado]. It’s not tourism based, so it’s not based on your discretionary money to come out here and mountain bike or something. It’s an actual, tangible product” (Interview by author, 2015). Though the “tangible,” i.e., economic, benefit and food security provided by agriculture are certainly of unquestioned importance, this rancher went on to say, “I think that— and I guess, you know, the aesthetics. It provides wildlife habitat and a pretty . . . you know, an aesthetic value. I suppose that’s on there too” (Interview by author, 2015). In this the receding water paradigm is expressed insofar as acknowledging the environmental benefits of agriculture was a concession to placate environmental values. That is, downplaying environmental or other types of benefits and values and focusing primarily on how water is a resource for predominantly human uses undermine the interconnected nature of water that water management should acknowledge under the emerging paradigm. While the majority of farmers and ranchers pointed to the nation’s food supply as reason enough for agricultural water use, one farmer questioned that food production provided enough of a reason on its own for agricultural water use in their valley. “I’m not sure, to be honest with you—if this valley dried up, it wouldn’t affect the ability to feed to population. And that’s why I think one of the greatest reasons I think we have to learn efficiencies is that if in fact somebody can prove that if this basin didn’t exist for water, what would it affect people living in cities?” (Interview by author, 2015). As this farmer pointed out, the scale of food production in the United States extends beyond their valley. This more nuanced understanding of the connection between this farmer’s valley and the nation’s food

supply acknowledges the different scales of water and food production. Through this, food production is no longer regarded as an unquestionable benefit as the rancher above stated. Instead of seeing food production as an absolute benefit, it is understood in a particular context defined at least in part by a scarcity of water. A different rancher spoke to this idea, saying we should be thinking as far as “twenty-five, thirty years from now. And if we’re going to do it [produce food for the nation] all in the Midwest, okay. And I’m not—that’s not wrong as far as I’m concerned, but we should make some kind of a big picture analysis of really what we want to do and [if it is] feasible to do that” (Interview by author, 2015). Acknowledging the larger contexts of food production and water availability may weaken the case for agricultural water use in Colorado, it only does so insofar as agriculture is defined solely by food production. Though many farmers held food as the ultimate benefit of agriculture, they also acknowledged that agriculture provides for other benefits. Of those, environmental benefits were the most commonly cited. When I asked one farmer why agriculture was a beneficial use of water, he simply said, “Well, I don’t think it’s just agriculture” (Interview by author, 2015). They pointed to wetlands, rivers, and the general ecology in the area as inherently connected to agriculture’s presence. Connecting agriculture and the environment like this was the norm. In a similar manner, another farmer pointed to a variety of reasons why agriculture was so important to communities: Is it an overstatement to say ag[riculture] is the lifeblood of the community? No. It’s everything. But it provides so much more than just, you know, the employment, the food. It provides that open space. It provides an environment. Look around me. Look at where people are building their homes. They’re building their homes around here so they can be surrounded by ag[riculture]. I would say it’s the primary driver of the force over here. So if you take the water away, people will go away too. It’ll dry up (Interview by author, 2015). Both of these farmers point to the multiple benefits agriculture provides. They do not think of just food production as its defining characteristic, but recognize the connections it has with the environment and desirability to live in the area. Even though the farmers above reflect a similar perspective in terms of the connections with and benefits of agriculture, this does not mean that the emerging water paradigm is necessarily embraced in its totality. One rancher I spoke with succinctly exemplified this by saying, “I’m not concerned about water in the streams for the ecology or the environment because I think one hundred years of irrigation, one hundred plus years of irrigation, like we do it today has created an environment and an ecology that’s important to society. It’s important to our community. It’s important to me” (Interview by author, 2015). Although this rancher was the only one to say that agricultural water use specifically supplied enough water for the environment (at least through flood irrigation in their area), this description highlights how even if a person understands agricultural water as inherently interconnected with the environment and other things, the terms of those connections is still open to interpretation. Insofar as this rancher defines “the environment” in terms of the ecosystem he sees immediately

before him and this being adequately supplied with water from agriculture, there is no need to consider further connections between agricultural water use and the environment. This principle applies to the other farmers above as how they recognize and value the environment they pointed to also matters. Aside from the connection of agricultural water use with the local environment, farmers and ranchers I spoke with also talked about the value of the tradition and culture agriculture has created over the last century and more. That said, the dominant value of agricultural water use laid in food production—environmental and other benefits largely were considered secondary and the extent of interconnectedness was thus acknowledged in a limited manner. This is perhaps best shown in how farmers prioritized uses of water.

Goals of Water Management

Building on the theme of interconnectedness, the emerging paradigm orients water management towards a broad spread of benefits. Having this as the goal of water management contrasts with the receding paradigm where our relationship was characterized by our use of discrete and narrowly defined resources. When asked what uses of water were most important, most farmers and ranchers prioritized water uses similarly to the 1922 Colorado River Compact where domestic use is the highest priority. While most farmers and ranchers were also quick to clarify that they did not include water for lawns within this, many argued that agricultural water use was just as important as (indoor) domestic use. As one farmer said, “Well, I think the most important use for water . . . is in keeping people alive by satisfying their needs for drinking water and other requirements just for life. But part of that is a production of agricultural goods that allow people to eat. So those two kind of go hand-in-hand in terms of allowing life” (Interview by author, 2015). The prioritization of domestic and agricultural water uses within this hierarchy that this farmer and others talked about echoed a recognition of the need for water and sanitation as basic human rights, which Gleick and other authors point to as a characteristic of the emerging paradigm (Gleick 2000). However, in terms of recognizing a diversity of values and benefits, this description of priorities is somewhat narrow in perspective as there could be greater recognition of the interconnected nature of systems previously discussed. Two of the farmers and ranchers I spoke to had a different kind of response when I asked what they thought were the most important water uses: All. All uses are important. . . . they’re doing something beneficial whether it’s a farmer, or a miner or a, you know, whatever. They’re putting water to use in some way to get something out of it (Interview by author, 2015). I guess I probably couldn’t say that there’s one more important than the other. Water to protect the environment, I think, is essential. I think water to raise food is—we have to have that. I think water to create recreational opportunities, you know, people need—they are healthy places to spend your time . . . I think they’re all very important and I don’t think I could say that one is more important than another (Interview by author, 2015).

While the other farmers and ranchers usually included environmental and recreational uses in their hierarchy, the above quotes go a step further in that the goals are informed by a recognition of the complex interconnected environment we live in. Although domestic and agricultural water uses are certainly important and there are certainly reasons for distinguishing between uses, isolating and distinguishing them in a context of absolute importance abets the idea that people exist outside of an environmental context they depend on. Declining to rank water uses, on the other hand, does not set a precedent for sidelining beneficial uses which may not benefit people directly. This is not to say, that recognizing the importance of a diversity of water uses is the same as equating the value of them in practice. The circumstances of a situation dictate the relative importance of different water uses. For example, the projected economic and population growth in Colorado and resulting municipal demands are in no small part due to, as the Colorado Water Plan puts it, “vibrant communities, natural beauty, and a high quality of life” (Colorado Water Conservation Board 2015, 5-4). In proportion to the benefit environmental and recreational water uses provide (and not just to a growing economy), these uses warrant consideration and value.

The Best Approach to Water Management

As with the goals of water management, what farmers and ranchers pointed to as the best approach reflected how farmers and ranchers understood the nature of water management. Pointing to collaborative efforts recognizes the legitimacy of various values, forms of knowledge, and water uses (depending on what parties are included in these efforts) and relies on the understanding of a complex and interconnected nature. While most farmers and ranchers valued collaborative efforts in water management, many also characterized water management as an issue with different groups not seeing eyeto-eye. When I asked one farmer to describe the water situation in Colorado, he bluntly said, “contentious” (Interview by author, 2015). Others described Colorado water in similar terms saying, “there’s a battle for water going on” (Interview by author, 2015), and “it’s always a fight between East Slope and West Slope for the water” (Interview by author, 2015). While this was regarded as the current situation by many, collaboration and education were oftentimes pointed to as essential to water management. Many of the farmers and ranchers I spoke with were a part of the Gunnison Basin Roundtable—one of the nine basin roundtables in Colorado established “to facilitate continued discussions within and between basins on water management issues, and to encourage locally driven collaborative solutions to water supply challenges…” (House Bill 05-1177). One of the roundtable ranchers said: I think that the efforts of having collaborative discussions is highly important, and we have to tell each other—the different interest groups—what’s important to us. And hopefully in that process we can come up with meaningful ways of meeting all the demands that are out there. I mean, I’ve been involved in lots of collaborative efforts over my career, and where there was a sincere effort made to communicate, most of the results of those efforts have been good (Interview by author, 2015).

They went on to say that most collaboration is motivated by parties wanting to avoid going to court, but this addition does not detract from the emphasis of collaboration between parties and recognizing the potential for mutually beneficial results. This rancher was certainly not alone in pointing to collaborative efforts as essential to water management. Another farmer said, “it’s just a matter of everybody [downstream states, east slope, west slope, etc.] working together. I think that’s one of the very important things. I really do” (Interview by author 2015). While collaborative efforts were commended by many farmers and ranchers, many also argued that there is room for more collaboration to happen between interests and basins. While collaboration was an explicit aspect of water management important to many farmers and ranchers, others pointed to education and legislative efforts in a similar manner. When talking about what was not working well in water management, one farmer said: It’s education just as much as anything. We have a number of projects here in our immediate area where we’re trying to do more with piping and pressurized systems, and a lot of farmers just are not willing or convinced, I guess, that this approach will benefit them. . . . We need more examples. We need more farmers talking to other farmers saying, ‘I put in this center pivot and it’s working great. I’m cutting more hay than I ever did’ (Interview by author 2015). Education in this context relies on sharing of information and data rather than undermining the interests of other groups as one farmer seemed to call for when they said, “people are not getting together and coming up with solutions. You know, the Trout Unlimited wants water for the fish, and they want to leave more water than I think they need, and people just need to get together and come up with a solution that really works” (Interview by author 2015). In addition to education, one rancher pointed to legislation saying: Probably one of the best ways we could make that situation better would be to educate the county commissioners, the city councils, and the legislators with regard to how the current system works, and then establish closer relationships between decision makers and users. To move forward on water management concepts, you pretty much have to go through the legislature (Interview by author 2015). Although these farmers and ranchers pointed to education and legislation as a means of improving management, they still relied on collaboration as a part of these efforts. Pointing to educating county commissioners and others is done with the intention of having the experiences and values of those who use water being more adequately represented and considered. Saying that legislation is necessary for water management to move forward does not conflict with the emerging paradigm as this does represent an imposition of values, but a recognition of values in this case. However, whose interests are being represented is another important aspect of this. Legislation should aim to represent the values of the diverse interests of citizens.

Conclusion

The tendency for many farmers and ranchers to see

agriculture as interconnected with the Western Slope culture, economy, and environment showed that agriculture was more than just food production for most farmers. They valued the lifestyle, community, and landscape it provided them so much so that they wanted to ensure agriculture remained viable on the Western Slope for future generations. Other farmers and ranchers, though, were resistant to defining agriculture as anything other than an economic activity that provided the essential benefit of food. Seeing agriculture as an isolated practice that does not directly impact or relate to the environment, culture, or other aspects of society undermines its value and the value of the water it depends on. The same can be said for narrowly defining the goals of water management or approaching water management in an exclusive manner where the knowledge and values of all who depend on water are not recognized. The farmers and ranchers I spoke to embraced the receding and emerging water management paradigms to varying degrees. While many pointed to collaboration when discussing how water management should be approached, there could be a greater recognition of the interconnected nature of water in understanding the goals of water management—though two people I spoke with talked about recognizing the value of all uses of water, there were a number of others who simply said agriculture was the most important use for them. The examples and ideas farmers and ranchers used, which reflected the emerging paradigm, were not outweighed by those which reflected the paradigm of the last century. There was a surprising integration of the emerging paradigm in how some farmers and ranchers talked about water and water management, but there is still much progress to be made. Although the water management paradigm of the last century has enabled food production to largely keep up with population growth, reduced greenhouse gas emissions through hydroelectricity generation, and created safe water supplies for most developed countries, there have also been serious consequences of this approach (Gleick 2000). Billions of dollars have been invested in water infrastructure in the United States alone, but this approach has also resulted in “the destruction of ecosystems, loss of fish species, dislocation of human populations, inundation of cultural sites, disruption of sedimentation processes, and contamination of water sources” (Gleick 2000). As we continue to recognize the connections between natural resources and society through water, climate change, deforestation, and other environmental issues, the need to change how we approach resource management grows. Natural resources should no longer be thought of exclusively as a resource and the interconnected nature of the environment and society needs to be recognized. We must realize that natural resource systems are dynamic and prioritize sustainable and adaptive practices, and in recognizing this complex and dynamic system, we need to not rely exclusively on technical solutions or a single approach to management, but learn to collaborate and recognize the benefit of a diversity of perspectives. We have prior appropriation to allocate water uses, but innovation and the acknowledgment of social influences are necessary in this system as we begin to recognize the broader connections and importance of water. How this manifests exactly

remains to be seen, but perhaps part of the solution to the overly mechanistic and top-down approach, which has characterized water management, requires a greater consideration of ethics such as the human right to water. Whether considering human rights or our more subjective desires, there will always be com-

peting interests for water. As one rancher said, “I believe we need to have green space in the city, and parks and recreational options, but… it’s a hard value call because when you raise turf for people to play ball on, what is the value of that turf versus the value on hay ground out here? Those are hard decisions.”

Appendix

How would you describe the current water situation in Colorado and the Gunnison Basin? What do you think is the cause, or causes, of our water situation? Do you think there is more water to develop in the Gunnison Basin or in Colorado? How do you understand the projected water demands reported in the Colorado water plan? Do you see yourself as having a voice or as having influence in water management? In the Gunnison Basin? In Colorado? How do current water policies affect you as a farmer? What do you think are or should be the goals of water management in Colorado and the Gunnison Basin? What is working well with current water management? What is not? What uses of water do you consider to be the most important? Why? What do you see agriculture contributing to the Gunnison Basin and Colorado? Why do you think agriculture is a beneficial use? What do you think is the best way to achieve those goals of water management? What are your thoughts on prior appropriation? Public trust doctrine? Is prior appropriation fair? How would you like to see the future of water management develop in the future?

Bibliography

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“Portal” by Emily Kim, Class of 2016 Third Place, 2015 State of the Rockies Photo Contest

Jonah Seifer

Native American Water Quality Rights How the EPA’s Treatment as a State Program can Strengthen Tribal Sovereignty in the Southwest

by Jonah Seifer, 2015-16 State of the Rockies Project Fellow The prior appropriation system of water rights used in the western United States does not properly account for the diminishing quality of water as it flows towards the ocean. Native American tribes are often disadvantaged by this dynamic, and until recently, were relatively unable to protect themselves from the potentially hazardous discharges of upstream appropriators. Today, the Treatment as a State program administered by the US Environmental Protection Agency is allowing tribes to seek approval of authority to regulate the quality of water that enters their reservation. This new state of primacy over environmental regulations can help increase water security for all users, develop critical water infrastructure for tribal members currently without it, and promote an environmental ethic more consistent with a particular tribe’s traditional values and practices. All of these results amount to strengthened tribal sovereignty. The Treatment as a State program is imperfect, however, and the EPA’s implementation must be fundamentally modified to fully recognize the congressional intent behind the Clean Water Act. that, “water quality management serves the purpose of protectIntroduction Conflicts over water in the arid western United States ing public health and safety, which is a core governmental func-

almost always center on the question of quantity: how much water is where, what beneficial uses it will satisfy, and where it will flow afterwards. This pragmatic approach is largely the result of the prior appropriation system of water rights, a legal means of allocating quantities of this precious but scarce resource to those appropriators who diverted and used the water first. Prior appropriation is a product of its time, its design catered to an era when the settlement and development of the west were top priorities. This was a sensible method in the late 19th century, but over a century later, the prior appropriation system is slow to adapt to the highly industrialized reality of the 21st century. Here lies one key oversight of prior appropriation in a modern world: it does not account for the varying quality of water. Not all water is created equal. One gallon of pristine snowmelt is substantially more valuable to an appropriator than one gallon of downstream water that may have become silted or polluted in its journey towards the ocean. Native American tribes are all too familiar with this dynamic and are often faced with the effluence of their upstream neighbors. Despite this inequality, all water rights are administered as if water of the utmost quality had flowed into reservations. It will be a challenge to justly administer this system of water rights if the quality of the water is ultimately insufficient to meet the needs of a downstream appropriator. Addressing this hydrologic dynamic helps tribes maintain their status as sovereign governmental entities. The United States Environmental Protection Agency (US EPA) recognizes

tion, whose exercise is critical to self-government…environmental self-regulation is critical to tribal sovereignty” (Sanders 2009). In other words, becoming the foremost environmental regulatory body within a particular jurisdiction is a powerful tool for enhancing tribal sovereignty. “By specifying the quality of water that may enter the reservation, [Native Americans] can more directly control the quality of their water resources. This is a major step and a valuable tool…in [tribes’] efforts to improve the reservation environment” (Chandler 1994). This report will focus on an EPA program known as Treatment as a State (TAS). I will demonstrate the costs and benefits of TAS through the analysis of two distinct case studies: the Navajo Nation and the Pueblo of Isleta. These tribes have successfully navigated the TAS program to produce outcomes that ultimately enhance tribal sovereignty through the assumption of environmental management duties such as water quality regulation. Especially in the Navajo Nation, an expansive and rural region, TAS is also helping to break the chronic cycle of poverty by stimulating water infrastructure projects that will eventually provide domestic water supply and catalyze economic development. TAS is not just an environmental law either; it allows tribes to regulate water according to their traditional ethics and spiritual practices, which further affirms tribal sovereignty. The Pueblo of Isleta used TAS to this effect when setting water quality standards that extended beyond the boundaries of their reservation to affect upstream dischargers who had a negative effect on Rio Grande water quality.

Jonah Seifer is a Fellow for the 2015-2016 State of the Rockies Project. Born outside Boston, Massachusetts, Jonah’s interest in environmental science was inspired by many years hiking and skiing around Vermont, as well as recent semester spent studying in New Zealand. He plans on focusing on Native American water rights for the 2015-2016 State of the Rockies Project. An Environmental Physics major graduating in 2016, he plans to build off his experience with the Rockies Project and further explore the state of water policy in the West. In his free time, he likes to climb, ski, photograph and slackline.

Background on Tribal Sovereignty

Tribal reservation lands were not created as absolute sovereigns. In the 1831 Supreme Court case Cherokee Nation v. Georgia, Chief Justice John Marshall described, “the relationship of the tribes to the United States resembles that of a ‘ward to its guardian’” (The Cherokee Nation v. The State of Georgia 1831). Figure 1 shows the distribution of tribal and state lands across the United States.

Figure 1: Tribal Lands in the United

Source: Esri and Bureau of Indian Affairs.

This relationship has resulted in tribal governments and their lands being referred to as “domestic dependent nations.” While some interpret this to be a derogatory label, it is relatively on par with the other state entities. State governments are also “domestic dependent nations” according to the 10th amendment; they hold powers not explicitly elucidated in the Constitution. The same is also true of the federal government; its powers are derived from the consent of the people and its duties are defined in the Constitution. As a result, the federal, state, and tribal governments are all constraining each other’s sovereignty, and are thus “dependent” on each other to maintain this triangle of local power, states’ rights and federalism. Despite this seemingly elegant arrangement of “parallel sovereigns,” equal political power does not exist in practice. Tribal governance is tightly constrained by state and federal law more so than state and federal governments are constrained by tribes. All parties are vying to maintain the clearest and most senior jurisdiction over their waters; however, tribes tend to have the disadvantage of possessing less expertise, management capabilities, and capital than non-Native governments. Further compounding this, tribal water rights are usually senior on paper, but their seniority is not yet fully recognized on the ground. This is largely due to the Winters Doctrine established in the 1908 Supreme Court case, Winters v. United

States. This case concluded that, when the federal government created the reservation system, they implicitly reserved sufficient waters necessary to practically irrigate the acreage of that reservation. These reserved rights are retroactively dated to have a priority date based on the establishment of that particular reservation, so in the case of the Navajo Nation, their federally reserved water rights have a priority date of 1868. That being said, the doctrine recognizes an implicit reservation of water rights, not officially decreed paStates per rights. The decades following the establishment of the Winters Doctrine was the golden era of diversion and dam building. In a frenzy to quench the growing thirst of the rapidly expanding west, the Bureau of Reclamation erected over 30,000 dams, impounding much of the water that may have flowed into reservations (Reisner 1986). This benefited the new non-Native populations, but potentially prevented tribes from developing their own water resources. Water security (that is, the reliability of a community’s water source and their access to it) is a zero sum game in the arid west because that water must ultimately come from someone else so, “jurisdictional battles make environmental regulation in Indian country difficult [because] no sovereign—federal, state, or tribal—wants to relinquish any of its authority” (Sanders 2009). While the US EPA regularly delegates management authority to state EPAs, the tribal relationship to federal environmental regulation is more nuanced. Through the practice of cooperative federalism, states are delegated management duties outlined in major environmental laws such as the Clean Water Act (CWA) or the Clean Air Act (CAA), but the same is not always true for tribes. If tribes desire to regulate their own water under the CWA, they must first seek approval of their authority to do so under a US EPA program known as Treatment as a State (TAS). This need to seek “approval of authority” before authority is delegated will be examined in depth later, but the outcome is that tribal governments are not being treated as states under the Treatment as a State program. “Since a state has the power to require upstream states to comply with its water quality standards, to interpret the statutes to deny that power to tribes because of some kind of formal view of authority or sovereignty would treat tribes as second-class citizens” (Rodgers 2004). Further complicating this issue, it is essential to recognize that tribes are not states. Similar to states, they have an inherent authority to regulate their own environment but unlike states, they have not been participants in the cooperative federalism model that enables the transfer of duties from the federal level to the state level. While tribes are parallel sovereigns with respect to state and federal governments, the nature of their sovereignty is not the same. Native American tribes were independent prior to the colonization of

North America and were not involved in the formation of the United States. Their regulatory authority over their own lands, regardless of the trust responsibility of the federal government, is inherent in their existence as a people and occupation of those lands. Thus, the TAS program, “diminishes tribal sovereignty…[by] maintain[ing] that [tribes] must fix water quality standards as a state, rather than as a nation, in accordance with federal laws” (Rodgers 2004). This is the essence of how the nature of tribal sovereignty is dissimilar to state and federal sovereignty. Tribes are not a part of the cooperative federalism partnership made between states and the federal government, so they should not be forced to conform to the legal frameworks of another nation. While it brings potential for great benefits to tribes, TAS does so in a way that is inconsistent with the modern political reality. This is why TAS somewhat diminishes tribal sovereignty; it perpetuates the erroneous system of incorporating tribal governance into the larger governmental partnership maintained by the states and federal governments.

Figure 2: Tribal Water Claims in the Colorado River Basin

Source: Esri, Kaye LaFond and Brett Walton (originally published by Circle of Blue).

The Current State of Tribal Water Rights

This debate over approved delegations of authority versus the assumed devolvement of authority (that is, assuming tribes have primacy1 from the start) seems much less peripheral when we consider that tribes hold massive, unquantified claims to water in the Southwest (see Figure 2). This key detail makes tribes the perfect parties for negotiating creative water settlements in an increasingly water-scarce region. “Combined, the 29 recognized tribes [in the Colorado River Basin] hold rights to a substantial portion of the Colorado River’s flow: roughly 20 percent…which is more than Arizona’s total allocation from the river” (Walton 2015). In addition to this, “river flows could decrease by nine percent by 2060 because of climate change” (Walton 2015), so the potential for a system-wide upheaval of the status quo is considerable. Fortunately, tribes have a lot of water and neighboring communities tend to have more capital than tribes. Each has what the other wants, so the potential for cooperation and mutually beneficial solutions is also considerable. “Tribal involvement will be critical to any solution regarding future supply imbalance in the [Colorado River] [B]asin” (Vigil 2013)

The land of the reservation itself is roughly the size of West Virginia and contains complex hydrology that connects the nation to 33 different watersheds and five major aquifers (see Figure 4). About 90% of all water supplies are obtained through groundwater wells because most of the reservation is situated on the Colorado Plateau and has limited surface water supplies (Water Resources of The Navajo Nation 2014). The Navajo Tribal Utility Authority serves water to about 130,000 people every day, but tribal membership is over 300,000. Even after accounting for secondary operators of public water supply systems such as the

Figure 3: Navajo Nation Tribal Government

Case Study Background: Navajo Nation

Navajo Nation is the largest Native American reservation and hosts a correspondingly large tribal government, making it an ideal candidate for the TAS program. The tribal government is structured similarly to the United States federal government with executive, legislative, and judicial branches (see Figure 3).

Source: Navajo Nation Department of Water Resources.

Primacy is defined as being the foremost regulator within a jurisdiction. Obtaining primacy means that the regulatory entity has the power to set standards, implement appropriate programs, and enforce those standards. 1

Figure 4: Hydrography of Navajo Nation

Case Study Background: Pueblo of Isleta The Pueblo of Isleta is sig-

nificantly more compact than the Navajo Nation, yet it still stands to benefit greatly from the TAS program (see Figure 5). The pueblo is about 83 times smaller than Navajo Nation and about 5,000 members reside there. The government has a similar system of three branches, but is sized proportionally to the reservation and therefore does not have a dedicated agency for environmental protection. Instead, the Department of Public Services handles environmental duties such as water quality regulation, fire management, and trash collection among others. The Public Service Department also manages a drastically different hydrology than Navajo Nation. The Pueblo of Isleta covers 17 Source: Esri, US Environmental Protection Agency, Bureau of Indian Affairs, and US Geological Survey. Precipitation data is watersheds, most of which contaken from an EPA report that also included data from nearby tribal lands that may share a watershed with Navajo Nation. verge on the Rio Grande River Bureau of Indian Affairs, between 30% and 40% of Navajo that flows down from Albuquerque through the pueblo. people do not have access to clean water in their homes. This As a result of this geography, the Pueblo of Ispopulation must either haul water from a dedicated tap, often leta faces different challenges than the Navajo Nation. an average of 5.4 gallons per person per day obtained an average of 14 miles away, or have Figure 5: Hydrography of Pueblo of Isleta water trucked to their home (Draft Water Resource Development Strategy for the Navajo Nation 2011). This situation contributes to the high poverty rate of 38% found in Navajo Nation, a rate that is nearly twice that of the most impoverished state, Mississippi. In addition to this, one third of Navajos are minors and 44% of those minors are under the poverty line (Arizona Rural Policy Institute and Northern Arizona University 2015). These poverty rates are partially influenced by limited access to water infrastructure, which in turn limits the potential for economic development and perpetuates further poverty. TASâ&#x20AC;&#x2122;s greatest benefit to Navajo Nation is its ability to aid in the exchange of water rights for critical water infrastructure. Source: Esri, Natural Resources Conservation Service, PRISM Climate Group, and Bureau of Indian Affairs.

Unregulated stock watering warning. Source: US Environmental Protection Agency.

Contamination and discharges from upstream users in Albuquerque flow into the reservation and threaten human health and welfare, as well as serve to interrupt traditional practices in the river. TAS’s greatest benefit to the Pueblo of Isleta is that it enables them to set water quality standards that are enforceable outside of the reservation. This extra-territorial effect frees the pueblo to potentially challenge and enforce against harmful effects of upstream discharges, thereby aiding their assertion of tribal sovereignty.

Negotiated Water Settlements: Right-for-Infrastructure Exchanges

What is most exciting about these settlements is their potential for positive impacts on tribal water quality and how the TAS system can amplify this effect. As mentioned earlier, water settlements enable lower-risk investments in water infrastructure for upstream users. The same is true for tribes; quantification and settlement of tribal water rights allow tribes to invest and control their own pipelines and distribution infrastructure. This is highly valuable for two main reasons: water can be delivered to those who did not previously have access to it, and more importantly, the delivery of safe, high quality water can be ensured. Just as surface waters and ground waters are inseparable pieces of the same hydrological system, water quality and quantity are also inseparable pieces of water management. As the previous discussion has suggested, quantification through negotiated water settlements is conducive to infrastructure development, which in turn is responsible for delivering known quantities of water of known quality. In this way, issues over quality and quantity are best solved in tandem. This is especially true considering the popular dictum, “the solution to pollution is dilution.” Because the discharge of contaminants becomes less harmful when diffused throughout a large body of water, it is sensible to manage water quality in the context of known quantities of developed water rights, thus they are inseparable. Lack of access to clean water on Navajo Nation is not only commonplace but also carries with it dangerous, longterm implications. As with water infrastructure, all economic development rests on access to water. Tourism industries like backcountry tour guiding, rafting outfitters, and fishing guides, as well as accommodations, casinos, agriculture, restaurants and residential water use, all depend on a secure connection to clean water. Without it, these businesses simply cannot exist. “The fact that the mean income of Navajo families is below the poverty line can be attributed, in large part, to the lack of water supplies within the reservation” (Draft Water Resource Development Strategy for the Navajo Nation 2011). Figure 6 shows how poverty rates in the Navajo Nation compare to

“In pursuit of their water rights, tribes have been the basin’s dealmakers” (Walton 2015). While this may sound frightening to upstream appropriators at risk Figure of losing their water rights, negotiated tribal water settlements appear to be paving the way towards a future where all parties have secure access to the water they need. Negotiated water settlements enable novel agreements that, “recognize tribal water rights, provide the tribe with money to utilize the water, allocate money for other economic development purposes, and allow the exchange of tribal water to growing urban areas” (Gerlak and Thorson 2006). In addition to this, upstream appropriators are able to safely make investments in water infrastructure or water-dependent projects without fearing that, “the exercise of Indian reserved rights might destroy or undermine their investments” (Anderson 2015). This added benefit of water security, that is the reliability of the supply, makes negotiated water settlements mutually beneficial to both tribes and non-tribal users.

6: Poverty Rates in the United States

Source: Esri, US Census Bureau.

Figure 7: Percent of Homes without Access to Plumbing

The American Community Survey defines “adequate plumbing” as “hot and cold piped water…a ‘flush toilet…and a bathtub or shower.” Source: Esri and American Community Survey.

Figure 8: Access to Water in Navajo Nation

“Safe drinking water or basic sanitation” is roughly equivalent to the American Community Survey’s “adequate plumbing,” however it only includes water supply and sewage disposal. Source: Esri, Navajo Nation Water Management Branch, Environmental Protection Agency.

counties in the United States. Exceptionally low Figures 9 & 10: Pockets and Bands of Homes without Access to Safe water access in Navajo Nation also has dramatDrinking Water or Basic Sanitation ic effects on the health and welfare of the Navajo people themselves. “No other region in the United States has such a large percentage of its population lacking in such a basic necessity as potable tap water in their homes” (Draft Water Resource Development Strategy for the Navajo Nation 2011). Figures 7 and 8 show access to plumbing and water on the Navajo Nation. Due to the large area and rural nature of Navajo Nation, somewhere between 30% and 40% of the 300,000 members of Navajo Nation live without access to a public water supply system and must haul water from distant pipelines and wells or have water trucked to their home”(Draft Water Resource Development Strategy for the Navajo Nation 2011; Widdison 2012; Miller 2009; EcoSystem Management Inc. 2003).2 This is, in part, due to the cost of developing local distribution pipelines in diffusely populated, rural land. “The top 10 of the [Sanitation Deficiency System] projects [will cost] $4,000 per home…providing water supply for the last 20% of homes on the [Sanitation Deficiency System] list increases to $30,000 per home” (Draft Water Resource Development Strategy for the Navajo Nation 2011). As a result of these high costs, the Navajo Tribal Utility Authority, “will not operate a system with fewer than 3 connections per mile,” (ibid) so there is an easily broken threshold of population density that impedes infrastructure development in the Navajo Nation as seen in the pockets and bands of residences in Figures 9 and 10. This inadequate access to water infrastructure is why water hauling trucks are still viewed as economical. “Natives are 67 times more likely to live without running water or a toilet,” so a connection to a public water supply is immensely valuable. Many Navajo draw water from one of the 7,000 unregulated livestock feeding ponds, greatly increasing their risk of exposure to water-borne illness despite public notice of the hazards of Source: Navajo Nation Water Management Branch, Environmental Protection Agency. drinking from this source. (Water Management with unsatisfactory environmental conditions” (Rogers 2003). Branch 2015; Project Specifics of the Navajo Water Project 2015). The practice of water hauling reflects developing One Indian Health Service report from 1974 noted that, “Amerworld infrastructure conditions right here in the United States ican Indian and Alaska Native families living in homes with sattoday. Navajo water use ranges from 5 to 100 gallons per perisfactory environmental conditions placed fewer demands on son per day depending on locale. The lower figure, 5 gallons IHS’ primary health care delivery system…[those] homes reperson per day, is the Navajo Department of Water Resources’ quired approximately one fourth the medical services as those Due to the remote and rural nature of Navajo Nation, an exact survey of members not connected to a public water supply system is infeasible. Navajo Nation Department of Water Resources officially uses the EcoSystem Management Inc. Study, which reports 30%, because it is, “the most intensive effort to date to determine the actual numbers of water hauling household” (Draft Water Resource Development Strategy for the Navajo Nation 2011). Despite this, offices within the Department of Water Resources sometimes report 37% or 40%. Analysis of publicly available statistics on water infrastructure access within Navajo Nation suggests that the number is likely closer to 40% than it is to 30%. 2

Figure 11: Water Use Per Person Per Day By Country

Source: United Nations Human Development Report.

Water storage in plastic water barrels. Source: Navajo Water Project.

assessment of the average water use by haulers while the higher figure, 100 gallons per person per day, reflects heavier usage by those connected to the Navajo Tribal Utility Authority’s public water supply systems (Draft Water Resource Development Strategy for the Navajo Nation 2011). “By comparison, the average per capita use for 80 neighboring non-Indian communities in the Western United States is 190 gallons per day” (ibid). Its important to understand this number in context, however. The United States has one of the highest rates of water consumption out of any industrial nation, so water usage rates in the United States are not a reasonable basis for comparison (see Figure 11). Regardless, the per capita rate of water use by members of the Navajo Nation who haul is below the global threshold for “water poverty” according to the United Nations Human Development Report. This places those populations’ usage on par with countries such as Rwanda, Cambodia, or Haiti. This extremely low level of water use clearly affects Navajo health and welfare, and it also results in the loss of unprecedented amounts of time and money. One study attempted to quantify the cost of water hauling in Navajo Nation and found that, “including purchase, containers, vehicles, and opportunity cost of time, families which haul water for domestic purposes, spend the equivalent of $43,000 per acre-foot compared with $600 per acre-foot for a typical suburban water user in the region” (Draft Water Resource Development Strategy for the Navajo Nation 2011). This is a catastrophic market failure because, as mentioned earlier, even the most rural and remote homes can be connected to a public water supply system for around $30,000 and the average home can be connected for less than a sixth of the cost. This finding amounts to a cost of $133 per 1000 gallons, a rate over 10 times more expensive than the next highest-priced water, which is found nearby in Santa Fe (Santafenm.gov 2015). One key difference between Santa Fe and Navajo Nation, however, is that 38% of Navajo people live below the federal poverty line. Compared to the current, nationwide poverty rate of 16%, this means that one of the poorest communities in America is using the most expensive water in America (see Figure 12 and 13) (Arizona Rural Policy Institute and Northern Arizona University 2015; Draft Water Resource Development Strategy for the Navajo Nation 2011).

Darlene Arviso and the St. Bonaventure Water Delivery Truck. Source: Navajo Water Project.

Figure 12: Poverty and Water Rates by City

Source: Esri, US Census Bureau, Black and Veatch.

Figure 13: Poverty and Water Rates by City in the Four Corners Area

Source: Esri, US Census Bureau, Black and Veatch.

TAS Catalyzes Right-for-Infrastructure Exchanges

Here is where the TAS program, the system used to grant environmental regulatory authority to tribes, has the opportunity to shine: tribes that are able to obtain TAS status under the CWA become more prominent stakeholders within their watershed. This, in turn, amplifies the volume of their voice in water settlement negotiations. Phillip Kannan, legal scholar-in-residence at the Colorado College Environmental Program, tells me in an informal conversation, “practically speaking, it is the TAS status that gives tribes a place at the negotiating table…without TAS status tribes might be at the table; if they are, they might have bargaining power...TAS changes all

of these “mights” to the non-subjective voice. With TAS, tribes will be at the table; they will have bargaining power” (Phillip Kannan, personal communication 2015, italics added for emphasis). It is critical that states and tribes resolve the bulk of their water conflicts in out-of-court, negotiated water settlements. This method is the preferred alternative to adjudication and the cooperative nature is superior as well. A policy statement from the Department of the Interior to the Federal Register in March of 1990 claims that, “it is the policy of this administration…that disputes involving Indian water rights should be resolved through negotiated water settlements rather than litigation” (United States Department of the Interior 1990). Litigation is slow, expensive, and can only yield limited outcomes, such as civil penalties, injunctions, and damages (Jason John, personal communication 2015; Rodgers 2004; Walton 2015). Litigated water settlements are also phenomenally inefficient because of how time-consuming they can be. Cases have been known to last decades with multiple generations of judges and lawyers working on the case before it is settled (Rodgers 2004; Walton 2015). Arizona v. California, though not a tribal water rights case, lasted sixty-nine years and consumed the careers of four generations of judges (Arizona v. California 1931). The case, titled State of New Mexico ex re. State Engineer v. Aamodt, was intended to address Puebloan water rights in the Pojoaque River Basin, began in 1966 but wasn’t fully resolved until an out-of court, negotiated settlement was approved by congress in the Claims Resolution Act of 2010 (Claims Resolution Act of 2010). Negotiated settlements can be faster, more economical, and can produce cooperative, “win-win” solutions that benefit both parties and penalize no one.

“If you go to court, you get paper rights, not funding. It’s a tribal incentive to collaborate…you can’t get these compromise solutions through a court order,” says Nathan Bracken of the Western States Water Council (Walton 2015). Here, Mr. Bracken is pointing out one of the stronger benefits of obtaining primacy through TAS prior to the settlement process: by giving tribes a louder voice in negotiations, tribes can more easily exchange water rights for funding and infrastructure projects. Doug Kenney, a professor of law at the University of Colorado, says that, “there is a great opportunity for the tribes to be a part of the basin’s solutions…a lot of tribes are interested in doing creative arrangements” (Walton 2015). Clearly, negotiated settlements are superior to litigation. In the century following the establishment of the Winters Doctrine in 1908, only three tribal water settlements were resolved in court (Miller 2009). Compare that number to the twenty-eight settlements negotiated with state and federal governments in the past four decades (Walton 2015; Bovee 2015). Negotiation is the preferred mechanism for resolving water disputes, and as Dr. Kannan said, “with TAS, tribes will be at the [negotiating] table; they will have bargaining power” (Phillip Kannan, personal communication 2015). The following section will show some of the ways in which tribes can use TAS to enhance their sovereignty.

TAS as a Tool to Enhance Sovereignty Primacy is Sovereignty Though certainly imperfect, the EPA’s Treatment as a State program is catalyzing a new wave of stringent water quality regulations, thereby creating another opportunity to assert inherent tribal sovereignty by codifying tribal values into law. As discussed earlier, the EPA says that, “water quality management…is critical to tribal sovereignty” (Draft Water Resource Development Strategy for the Navajo Nation 2015). This is because sovereignty can be defined as freedom from external control and primacy is the position of being the supreme governing body in a region, so they are mutually inclusive. Achieving primacy over water quality standards necessarily equates to recaptured sovereignty. Empowering Self-Governance Through Capacity Building Self-determination and the desire to self-govern are not only products of the long history of injustices borne by Native Americans, but self-governance is also faster and more efficient than external governance. For example, the Pueblo of Isleta was one of the first tribes to obtain TAS status back in 1992. In 2005, the Isletans were issued a 404 dredge and fill permit (authorization to self-issue this class of permit was not included in their TAS application) with the intent to reclaim and stabilize a local channel of the Rio Grande River. The Isletans then proposed modifications to the permit, which would affect water quality in their area (Albuquerque District of the Army Corps of Engineers 2013). The Isletans were the prime regulators for water quality standards in their region and, as such, were able to certify that the modifications to their permit would not violate their water quality standards. In short, the Pueblo of Isleta was able to complete the entire process in-house because they were the proponent and certifier of the project (Cody Walker, personal communication 2015). This 36

process allowed for fast and efficient self-governance that affirms the sovereign status of the Pueblo of Isleta. The Pueblo of Isleta is unique due to their impressive technical and management capabilities, despite their relatively small size. Not all tribes already possess this expertise, however, so the TAS program is an excellent avenue to empower tribes and build capacity to govern and manage natural resources. One major benefit of obtaining TAS status is that it provides access to a plethora of funds and EPA-sponsored trainings intended to build capacity within tribes. Gail Louis, a manager from the EPA’s Region #9 Tribal Water Program, describes how TAS-status tribes are eligible to receive Clean Water Act funds, Safe Drinking Water Act funds, and State Revolving Funds, all of which are at the discretion of the state. The EPA also has money directly available to the tribes, including, but not limited to, Section 106 grants, which can be used to finance the establishment and monitoring of water quality standards (WQSs), General Assistance Program funds, which can go towards the development of tribal environmental management programs, and Section 319 funds, which can be used towards wastewater system upgrades (Gail Louis, personal communication 2015; Environmental Protection Agency 2006). In addition to this money, the EPA also provides oneon-one technical assistance, frequent workshops, and quarterly meetings with the appropriate Regional Tribal Operations Committee, an annual conference, and online educational resources. Cody Walker, the water quality specialist at the Pueblo of Isleta’s Natural Resources Department, tells me in an interview that, “the Water Quality Standards Academy was one of the best trainings I’ve ever been to” (Cody Walker, personal communication 2015). All of this training and funding ultimately amounts to skilled tribal regulators who are increasingly capable of self-governance.

Cultural Sustainability Through Environmental Management Water is sacred to all, but to many Native American tribes in the Southwest water holds a special place in their spiritual belief systems. The TAS program gives tribes a unique opportunity to protect and sustain their traditional, water-based ceremonies while also protecting the water itself. This ability to pursue an environmental ethic consistent with cultural practices and values is a powerful force because it links a tribe’s spiritual-ecological beliefs with the law. Consider the following excerpt from a member of the Mole Lake Band of Lake Superior Chippewa: “The purpose of this ordinance is to protect and maintain life on the Mole Lake Indian Reservation by enacting minimum standards for water on the Reservation. Water is a sacred thing to us, as it has always been to our most revered ancestors, through all of time. It has been taught to us by our revered elders that water is sacred. It is our blood. It is the blood of our children and ancestors. It is the life-supporting blood of Mother Earth” (Rodgers 2004). Surely a group that genuinely views water as being akin to their mother’s own blood would work to regulate and protect that water with the highest level of commitment and passion. Here lies another key difference between tribes and states: states are responsible for balancing a diverse array of uses while tribes can choose to favor a more specific agenda in line with their traditional ethics. “One study of the Miccosukee

Indians in the Everglades shows the real differences between tribe and state in perspective, commitment, and legal posture. The Miccosukee tribe is eager to intervene, slow to settle, quick to regulate, and anxious to enforce” (Rodgers 2004). Another excellent example of this commitment to high environmental ethics comes by way of the Fundamental Laws of Navajo Nation: “The four sacred elements of life, air, light/fire, water and earth/pollen in all their forms must be respected, honored, and protected for they sustain life” (The Fundamental Laws of the Diné). President Albert Hale affirms this belief in saying that, “…these are the elements that sustain us and help to define our sovereignty” (Dussias 1998). It is, however, necessary to avoid overgeneralizing; the same freedom to enact stringent water quality standards that support traditional uses could be turned around to support lax standards that support economic development. Regardless, “tribes could presumably use their standard setting powers to protect other values associated with water” (Fort 1995). After all, “a tribe’s ability to control its environment is empty indeed if water cannot be put to uses which are important to the people of the region” (ibid). This is exactly what the Pueblo of Isleta did when they were granted TAS-status in 1992. When establishing the beneficial uses of their waters, the Isletans listed an uncommon beneficial use titled “primary contact ceremonial use.” This official designation of a legally-protected religious use indicates, “the different perspective that the Pueblo brings to its role as an environmental regulator” (Dussias 1998). Tribes are certainly fit to be effective environmental protectors because, alongside the standard social, economic, and environmental reasons, there is a “religious and cultural motivation” to protect natural resources. Plus, “tribal governing institutions [are] more productive and effective when they fit with the tribe’s cultural norms and understandings” (Sanders 2009). In other words, culturally-sensitive governance is not only favorable from a social perspective, but it alsois more effective too. When tribes choose to regulate water quality within their reservation, they are not only protecting the environment and health of tribal members, but also their culture and sovereignty through the codification of traditional values into law. This is a big leap in sustainable thought: cultural, environmental, and economic sustainability are all facets of the same central concept. Control over these domains is a primary benefit of the TAS program and contributes greatly to tribal sovereignty.

Administrative Process of the Treatment as a State Program The TAS program appears to be a bastion of sovereign regulatory rights, but history has shown that the privilege of environmental self-governance comes with a hefty cost. There are four main conditions that must be satisfied in extreme detail for a tribe to qualify to apply for TAS approval (see Figure 14): 1) Tribe must be recognized by the Department of the Interior 2) Tribe must have a governing body carrying out substantial duties

Figure 14: Schematic of Treatment as a State

Source: US Environmental Protection Agency.

3) Tribe must hold3 waters to be regulated 4) Tribe must be reasonably expected to be capable of effective administration (The Federal Water Pollution Control Act 2002). This list of requirements, regardless of the daunting application process that follows, is already highly restrictive as will be discussed later. For those fortunate enough to qualify, the application process for seeking federal approval of water quality standards (WQSs) is similarly intense. Qualifying tribes must develop standards, which include designated uses, numeric and narrative protection criteria for those uses, and an anti-degradation policy to prevent present water quality from declining. Once this is completed, there is a period of public comment from citizens within and without the reservation as well as a public hearing. In addition to this, a 1998 amendment to the CWA gives “appropriate governmental entities” the opportunity to debate tribes’ jurisdictional assertions (Rodgers 2004). This gives states multiple avenues to argue tribal jurisdiction. If the EPA approves the TAS application, the tribe is finally eligible to seek federal approval of standards, which means even though they have been granted authority to set WQSs, the EPA still has veto power. And yet, approved WQSs, “do not impose any direct, enforceable requirements on any party, unless and until they are incorporated into a permit or used as the basis for some other regulatory decision” (Treatment in a Similar Manner as a State Portal 2015). In this way, a tribe’s ability to fix WQSs amounts to a constraint on the NPDES system and preparation for potential litigation or penalties related to WQS violations.

The exact text of this requirement reads, “The functions to be exercised by the Indian Tribe pertain to the management and protection of water resources which are held by an Indian Tribe, held by the United States in trust for the Indians, held by a member of an Indian Tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of an Indian reservation.” 3

Enforcement of Water Quality Standards Via Routine Sampling When asked about implementation of new WQSs, Cody Walker from the Pueblo of Isleta says that routine sampling of streams and wells is the best tool for triggering EPA penalties (Cody Walker, personal communication 2015). While this may sound obvious, it is surprisingly less straightforward on the ground. Hydrology in the Pueblo of Isleta is remarkably simpler than hydrology in Navajo Nation (see Figures 4 and 5). The Pueblo is situated in the Rio Grande River basin and covers the most of downstream sides of 17 watersheds. It is bound to the west by the Rio Puerco and to the east by the Manzano Mountains. All the precipitation in this region converges upon the Rio Grande via a small handful of washes and ephemeral streams, so comprehensive monitoring of the entire reservation can be accomplished with a handful of strategically-placed sampling stations. Navajo Nation, on the other hand, faces a much larger technical challenge. Navajo Nation has a complex hydrological system consisting of 33 watersheds and five major aquifers. Due to the distributed, rural nature of the reservation, it is nearly impossible to monitor the quality of all waters within the nation. Even if it were technically feasible, it is not economically viable. Mr. Walker from the Pueblo of Isleta tells us that one groundwater sample costs roughly $15,000. This is the cost of enforcement; samples require a great deal of equipment, labels, staff supervision, and redundancy, not to mention the cost of contracting a third-party lab and certified lab technicians to handle and test the samples in a manner that is scientifically and legally defensible. The aforementioned CWA Section 106 grants do help finance this Herculean effort; however, there is still high overhead for qualified tribes. To compound matters, the EPA Region #9, “anticipates it will allocate approximately $8 million to support CWA § 106 tribal programs,” as of 2012 (Environmental Protection Agency 2011). With 79 tribes operating qualifying monitoring programs, this amounts to an average of $100,000 per tribe. According to Mr. Walker’s price quote, the EPA is able to support roughly six groundwater samples per year, a number insufficient for a reservation of any size. In addition to this, the funding for Section 106 grants has increased negligibly since 2012 despite the number of eligible tribes increasing, so the amount of funding available to each tribe is increasingly scarce (see Figure 15) (Gail Louis, personal communication 2015). Sarana Riggs, a member of Navajo Nation as well as volunteer at the Grand Canyon Trust and Save the Confluence, states the issue plainly: “We need more sampling and funding… most services are contracted outside Navajo Nation… [because] we don’t have many qualified natives, just outside hydrologists” (Sarana Riggs, personal communication 2015). This solution is characteristic of a trend I found with many of the Navajo people I have spoken with: internalize and localize everything from water infrastructure and power generation to contractors and quantification in order to maintain sovereignty and control. Unfortunately, it appears that the Navajo Nation tribal government is wary of the potential for conflicts of interest and tends to seek out external, third party experts and contractors instead of hiring qualified members of the tribe (Jason John, personal communication 2015). 38

Figure 15: Historical CWA §106 Funding for EPA Region 9

Source: US Environmental Protection Agency.

Outcomes of the Treatment as a State Program

It is clear that tribes with TAS status tend to enter into beneficial negotiations with their neighbors, develop their internal regulatory capacity, and gain access to funding that has aided in the assertion of tribal sovereignty, as well as the development of water infrastructure. In this section, I will explore how Navajo Nation and the Pueblo of Isleta have directly benefited from the TAS program.

Case Study: Navajo Nation After the first TAS clauses were introduced into the major federal environmental regulations in the 1980s, Navajo Nation moved to establish the Navajo Nation Environmental Protection Agency (NNEPA). NNEPA “is an independent regulatory agency, established within the Executive Branch of the Navajo Nation government, headed by an Executive Director appointed by the Navajo Nation President and subject to the legislative oversight of the Navajo Nation Council through its Resources Committee” (Grant 2007). The debut of the TAS program triggered the formation of NNEPA, “and therefore be viewed as an important stimulus for the development of tribal environmental programs” (ibid). Since the formation of NNEPA, Navajo Nation has achieved primacy over regulations concerning air quality, surface and groundwater quality, drinking water, solid and hazardous waste, underground injection and storage, and pesticides. “From the outset NNEPA developed a long-range plan committing itself to obtaining TAS and primacy for as many environmental programs as possible. NNEPA made this commitment for two main reasons: a belief that the TAS provisions in the federal environmental laws created a unique opportunity to assert tribal sovereignty, and a view that EPA implementation of federal environmental laws in Navajo Indian country was not providing the desired degree of environmental protection” Logo of the Navajo Nation Environmental Protection Agency. Source: NNEPA. (Grant 2007).

The capability to administer these programs Figure 16: Summary of San Juan Settlement from was not yet present in Navajo Nation prior to impleOmnibus Land Act mentation of TAS, so TAS can be seen as enabling and incentivizing the accumulation of more environmental management capacity, and therefore the assertion of tribal sovereignty. “In order to obtain TAS, NNEPA focused immediately on developing comprehensives statutes and regulations based on the federal models, while at the same time establishing inventories, acquiring information on program issues, and obtaining training for staff ” (ibid). The TAS-status of NNEPA has also given the nation more bargaining power in water right negotiations. Navajo Nation began a dispute with the state of New Mexico over water resources from the San Juan River in 1975. Decades of litigation yielded little relief for members of the nation, many of which were elderly and without access to a public water supply system. While it is difficult to establish a direct causal link between the obtainment of TAS-status under the Safe Drinking Water Act4 in 2000 and the resolution of the San Juan River Settlement of 2005, what is clear is that building the capacity to manage the water and infrastructure conveyed by the settlement necessarily makes the settlement more successful and impactful. The San Juan settlement was actualized in the Omnibus Public Land Management Act of 2009, the largest land protection package passed in nearly a quarter century (see Figure 16). The Omnibus Land Act also ratifies and executes 15 large water projects, some of which are from tribal water settlements (Omnibus Public Lands Management Act of 2009; San Juan River Basin in New Mexico Navajo Nation Water Rights Settlement Agreement 2005). As a result of the Act confirming and executing the San Juan Settlement, Navajo Nation is entitled to up to $1.37 billion federal dollars intended to finance the design, construction, operations, and Source: Utton Center for Transboundary Resources. maintenance of the Navajo-Gallup Water Supply Jason John, the principal hydrologist at the Water Management Project (NGWSP) (see Figure 17). The Act also requires New Branch within the Navajo Nation Department of Natural ReMexico to provide $50 million to aid in construction of the sources, claims there is about $700 million in local, domestic NGWSP. On top of this, there is an additional $53 million that infrastructure needs and over $1 billion in agricultural infrathe Bureau of Reclamation is authorized to use in constructing structure needs (Jason John, personal communication 2015). and rehabilitating conjunctive use wells and irrigation projects Furthermore, the Indian Health Service has a 20-year backlog of within the reservation. The Act establishes the Navajo Nation feasible, local water projects due to limited funding, so TAS can Water Resources Development Trust Fund, which is set to re- be a powerful tool for accessing non-Native capital (Draft Water ceive $6 million in federal deposits annually between 2010 and Resource Development Strategy for the Navajo Nation 2011). 2014, and $4 million in deposits annually between 2015 and This tremendous achievement, however, comes with 2019. When completed around 2024, the NGWSP is expected a cost. Navajo Nation had, “a substantial Winters doctrine to deliver potable water to about 80,000 Navajo people for the claim to water in the San Juan: over 900,000 acre feet annualfirst time (The Navajo Nation Office of the President and Vice ly with a priority date of June 1868” (Widdison 2012). Navajo President 2010). Nation waived all of these claims to San Juan River Basin wa Large-scale megaprojects like this are especially im- ter rights in exchange for 669,000 acre feet annually, plus the perative given the need for infrastructure within the nation. funding for the NGWSP and an additional right to deplete NNEPA received primacy over the Public Water Supply Supervision program under the Safe Drinking Water Act in December of 2000. Primacy over the Clean Water Act, whose regulations are less specific to municipal supplies, took over 5 years and was not finalized until March of 2006. 4

Figure 17: Navajo Gallup Water Supply Project

Source: US Bureau of Reclamation.

(that is, divert without return flows) 36,000 acre feet annually for the NGWSP (San Juan River Basin in New Mexico Navajo Nation Water Rights Settlement Agreement 2009; New Mexico Office of the State Engineer Interstate Stream Commission 2013). As will be seen later on, this may not have been a favorable trade-off despite the obvious relief that will be enjoyed by those currently without access to potable water. Ultimately, this project is going to benefit Navajo and non-Navajo people alike. A press release from the New Mexico Office of the State Engineer claims the NGWSP will generate between 400 and 650 jobs, generate local and state tax revenue, serve 250,000 people by 2040, increase water security for all parties, and reduce the potential for future litigation through

the settlement of outstanding Navajo claims to water in the San Juan River Basin (New Mexico Office of the State Engineer Interstate Stream Commission 2013). Even more importantly, this protects the water resources of the Navajo Nation from being captured by a downstream user without proper rights. The Ten Tribes Partnership, of which Navajo Nation is a member, advocates for justice with regards to tribal water rights in the Colorado River Basin. In a testimony to congress in 2013, the partnership expressed concern, “that while they struggle to put their water to use, others with far more political clout are relying on unused tribal water supplies and will seek to curtail future tribal water use to protect their own uses” (Vigil 2013). Deals like the San Juan River Basin of 2009 solidify the state of tribal water rights and protect currently undeveloped water for future use.

Case Study: Pueblo of Isleta The Pueblo of Isleta, being a much smaller community facing drastically different challenges when compared to Navajo Nation, has used its TAS status in dramatically different fashion. The Isletans also hold the special distinction of being the first tribe to set WQS in 1992 under the CWA’s TAS program. As a result, the pueblo has taken advantage of the diverse powers provided by the TAS system. The most sensational example of the exercise of TAS powers comes from the Albuquerque v. Browner case, during which the Pueblo of Isleta served the role of amicus curiae. This case focuses on a challenge to Isletan WQSs made by the city of Albuquerque, whose treated sewage is discharged into the Rio Grande five miles upstream of the pueblo. After the pueblo set its WQSs under their newfound TAS powers, the city of Albuquerque contested the EPA’s approval of those standards because the more stringent standards required the EPA to revise the National Pollution Discharge Elimination System (NPDES) permit that governed Albuquerque’s sewage treatment plant. This would result in the city being forced to construct and operate new treatment plants whose estimated value was in the order of hundreds of millions of dollars. The court reviewed three main complaints made by Albuquerque: the EPA failed to follow the proper procedure in approving the Isletan’s WQSs, there is no scientifically defensible basis for their high standards, and the EPA failed to provide an appropriate mechanism of dispute resolution when conflicting standards are placed on a common body of water. All three counts were ruled in favor of the Pueblo of Isleta. The court found that no procedural errors were committed. It was also found that the EPA does offer a dispute resolution

mechanism; however, it is only available to tribes and states (not cities like Albuquerque) because those are the only entities capable of revising WQSs. Even though the resolution mechanism cannot be of use to Albuquerque, the EPA did properly meet its statutory mandate. The most interesting finding concerned the alleged baselessness of the Isletan WQSs. Albuquerque argued that the Isletan WQS were below background levels found naturally in the Rio Grande and were unattainable, therefore arbitrary and capricious. Specifically, Albuquerque was referring to the Isletan standard for arsenic, which was 1,143 times more stringent than Albuquerque’s standard (Dussias 1998). The court found that the Isletans had conferred extensively with the EPA regarding the technical aspects of their standards. Cody Walker says that due to the traditional Isletan diet being high in fish, which concentrate arsenic through biological magnification, members of the pueblo have abnormally high exposure (Cody Walker, personal communication 2015). WQSs are set to benefit the lowest common denominator, which in this case is the elderly that have had a lifetime of arsenic exposure. This is how such a seemingly ludicrous standard becomes legally defensible. Another line of argument attacked the aforementioned Isletan establishment of a rare beneficial use titled “primary contact ceremonial use.” This use designation carries with it a phenomenally stringent set of WQSs because the Isletans ingest water during their traditional ceremonies in the Rio Grande. The court supported the pueblo’s right to define the uses and

corresponding quality of their water. As a result, Albuquerque was forced to comply with the revised NPDES permit, construct new treatment plants, and send clean water downstream to the Pueblo of Isleta. This case demonstrates how the TAS program can help tribes assert their inherent sovereignty through the far-reaching implications of Albuquerque v. Browner. Not only were the Isletans able to protect and sustain their traditional practices and corresponding environmental ethic, but they were also able to do so in a way that was legally defensible outside of the reservation. The Isletans used the TAS program to its fullest extent when forcing Albuquerque to invest in new treatment infrastructure that benefits the pueblo. This is one of the greatest benefits of TAS: the ability to reach beyond the boundaries of the reservation and demand compliance from upstream users. If tribal sovereignty equates to freedom from negative upstream effects, this extra-territorial power conveyed by TAS is one of the strongest tools for tribes seeking to assert their sovereignty. As Figure 18 shows, the hydrologically-defined boundaries of TAS reach far beyond the physical boundaries of the Pueblo of Isleta. It’s important to note that most extra-territorial effects are only possible when tribal WQSs are integrated with a NPDES permit or are the “basis of some other regulatory decision” (Treatment in a Similar Manner as a State Portal 2015). Fortunately, there are many ways to accomplish this. In order to expand their protections beyond the city of Albuquerque, the Pueblo of Isleta submitted their WQSs to be

Figure 18: Middle Rio Grande River Basin

Source: Esri, Bureau of Indian Affairs, US Geological Survey.

considered in the issuance of a Multiple Separate Storm Sewer System (MS4) permit. This is a class of NPDES permits that is applied to the entire Middle Rio Grande watershed and overseen by all water quality regulators within the watershed. It’s a relatively new form of collaborative management and notable in that one watershed-wide permit can apply to multiple dischargers. Because the Pueblo of Isleta has some jurisdiction within the watershed, their WQSs were integrated with the MS4 permit and are thus meaningful outside of the reservation. In addition to this, the previously mentioned Section 106 grants can be used towards monitoring programs used to enforce the MS4 permit, so in this way TAS also provides funds that aid in extra-territorial enforcement of the pueblo’s WQSs. Dr. Kannan believes this is a “primary extension of the benefits conveyed by the TAS system,” and further strengthens tribal sovereignty (Phillip Kannan, personal communication 2015).

Analysis of the TAS Program Strengths of Treatment as a State as Currently Implemented As Navajo Nation and the Pueblo of Isleta have shown, the TAS system is yielding truly meaningful results on the ground today. All of the outcomes of TAS-related programs have served to strengthen tribal sovereignty and position tribes for a future where clean water is easily accessible. The obvious benefit of the TAS program is how it enables tribes to set WQSs that, when integrated with an NPDES permit held by an upstream discharger, have definite impacts

Jonah Seifer

on tribal water quality. This has a direct impact on human health and welfare, but even more importantly it is an assertion of tribal sovereignty in that tribal regulations can extend beyond reservation boundaries such that tribes are no longer subject to the effluence of their upstream neighbors. Furthermore, tribes can now dictate uses for water that are harmonious with their traditional values and ethics. This reclaimed sovereignty did not appear spontaneously, however. The TAS program carries with it an array of monetary and educational resources created with the intent of assisting tribes in their quest to build and operate successful environmental management agencies. This is the key to enhancing tribal sovereignty: providing the tools necessary to build capacity within tribal governments. These tools have created monumental changes in infrastructure development. The Navajo-Gallup Water Supply project would not have been economically feasible without the cooperation of the state of New Mexico and the federal government. Similarly, the Pueblo of Isleta simply could not have financed the treatment facility necessary to protect their people from arsenic-laden fish. All in all, the TAS program is increasing freshwater access through infrastructure development. In the short term, this is an issue of public health, but in the long term, increasing access to safe water will also catalyze a wave of economic development. “It has been asserted that economic development, needed to break the cycle of chronic poverty, is largely dependent upon a reliable water supply and water infrastructure” (Widdison 2012). “Towns on the western side of the reservation, including Tuba City and Kayenta, are projected to run out of

groundwater within the next three decades. Thousands of ranchers have been forced to sell livestock because wells have dried up” (Miller 2009). Using TAS to deliver water in hopes of spurring economic development seems to be an excellent means of alleviating the extremely high poverty rate in Navajo Nation.

Critique of the Treatment as a State Program While TAS may sound like a silver-bullet solution to environmental woes faced by tribes today, it is not a perfect system yet (see Figure 19). Navajo Nation is the largest reservation in the United States so the NNEPA has a correspondingly large amount of resources. This makes Navajo Nation the exception to the rule; they have resources many tribes do not. Part of the application process involves creating an inventory of all waters within the reservation, and therefore waters outside of the reservation that may affect water within the reservation. This can be a daunting task for tribes with fewer resources and it is imperative that tribes perform a perfectly accurate survey to prevent future litigation. Gail Louis, a manager in the Tribal Water Program in Region #9 of the EPA, agrees that TAS has a prohibitively high barrier for entry and is not easy. In addition to the reservation-wide survey, the process of building capacity to perform successful environmental management is long and arduous. Often new staff must be hired and then trained to fill new roles (Gail Louis, personal communication 2015). Ultimately, “the application process [for TAS status] was onerous…burdensome, time-consuming, and offensive to tribes… tribes must submit detailed…documentation demonstrating jurisdiction…as well as their technical and administrative qualifications and experience…not only can these requirements be offensive…[but] depending on their regulatory infrastructure, can be downright overwhelming” (Sanders 2009).

Figure 19: Clean Water Act §106 Program Activities

Source: US Environmental Protection Agency.

Furthermore, many of the aforementioned funding options that would help tribes survey, inventory, and build capacity to administer environmental regulatory programs are only available once the tribe has accomplished those tasks. In

this way, there is likely a “cliff effect” in the TAS system: tribes with sufficiently low capital will not have the necessary resources to apply for the program that grants them access to critical funding. This theory is supported by there only being six tribes with approved WQSs in EPA’s Region #9 despite there being 146 tribes in the region. Of course, the decision to not pursue WQS approval through TAS is also an exercise of tribal sovereignty, but its still unfortunate that such a beneficial program only has a participation rate of 4%(Environmental Protection Agency 2006). For those lucky few tribes who meet the qualifying conditions for eligibility, successfully navigate the rest of the application process, and go on to have their WQSs approved by the EPA, the road still leads uphill. As Cody Walker has said, sampling is the best tool for enforcement, but without adequate funds for Section 106 grants, tribal water quality monitoring programs will be undercapitalized and stunted (Cody Walker, personal communication 2015). The EPA funds geared towards developing environmental agencies and supporting monitoring programs are insufficient for their intended purpose. Even though the amount of funding for Section 106 grants (water quality monitoring programs) is increasing as the number of eligible tribes does, there is still a significant funding gap that leaves tribes willing, but unable, to fully develop their programs. The TAS system is certainly an indispensable legal tool for strengthening and asserting tribal sovereignty, but in doing so it also undermines the alleged inherence of that same sovereignty. The issue is simple: it is inappropriate to treat tribes as states because tribes are not states. As discussed earlier, tribes exist as parallel sovereigns with respect to state and federal governments; however, the nature of their sovereignty is dissimilar. The state-federal partnership known as cooperative federalism is codified into the Constitution of the United States, but tribes were not a part of this arrangement. Tribal sovereignty is constrained by this dynamic, so they are treated as states to simplify the policy frameworks, but in reality their sovereignty is akin to that of an independent nation. Yes, the trust responsibility of the federal government complicates that, but should tribes ultimately need to seek approval from an outside government to have authority over their own lands? The position of tribes in the hierarchy of governments is higher than presently recognized in the CWA. The major philosophical downfall of TAS program within the CWA (TAS clauses vary from statute to statute) is that it cedes power to tribes in a manner that does not fully recognize the extent of their sovereignty. Once approved for TAS, the EPA delegates to tribes the power to set WQSs and utilize federal resources. This is the same mechanism by which states become responsible for managing their own environmental management programs, but as mentioned earlier, tribes are not states. Their sovereignty is inherent in their existence, so instead of delegating authority after approval, it should be assumed that tribes have authority to govern themselves. They would still have to interface with the US EPA when integrating their standards with the NPDES, but the key difference is in this model, the CWA devolves power directly to tribes.

This discussion of delegation versus devolution may sound like semantics, but the language of the CWA appears to plainly recognize the inherent sovereignty of tribes. The EPA may have erred in their interpretation of the law, especially when interpreting Section 518(e), which describes the conditions for treating tribes as states. The statutory language in this section, “seems to indicate plainly that Congress did intend to delegate…authority to tribes” (Anderson 2015). Even though Anderson used the word “delegate,” the message is the same: the text of CWA itself should be sufficient recognition of tribal regulatory authority. The official EPA position on this debate is that they, “presume that, in general, tribes are likely to possess the authority to regulate activities affecting water quality on the reservation . . . [but it] does not believe . . . that it would be appropriate to recognize Tribal authority and approve [TAS] requests [without] verifying documentation . . . [and] an affirmative demonstration of their regulatory authority” (Sanders 2009). This is an odd statement because, as the EPA itself admits, the purpose of the application is not to determine authority but to verify what they themselves have already assumed. Thankfully, “[the] EPA is considering reinterpreting Section 518(e) as a delegation by Congress of authority to eligible tribes to administer Clean Water Act regulatory programs over their entire reservations. This reinterpretation would replace EPA’s current interpretation that applicant tribes need to demonstrate their inherent regulatory authority” (Anderson 2015). In July of 2015, Gail Louis from the Region #9 Tribal Water Program office confirmed that these internal discussions are taking place and that the only potential complication would be a mechanism to resolve jurisdictional conflicts over jurisdictional boundaries near the borders of reservations (Gail Louis, personal communication 2015). In September of 2015, the EPA officially proposed a rule that would revise their interpretation of 518(e) to assume tribal authority. They cite a 1996 Federal district court case in Montana that ruled in favor of tribal authority, as well as their 1998 interpretation of TAS under the Clean Air Act, which was upheld in a 2000 Federal Circuit Court of Appeals case in Washington D.C. The proposal also clarifies that tribes must “identify the boundaries of the reservation,” and there will be a commenting period for states, tribes, and government agencies (Environmental Protection Agency 2015). “Section 518(e) should be read as delegating authority to regulate all sources with impacts on the reservation” (Rodgers 2004, italics added for emphasis). This differs from the third qualifying condition stated in 518(e), which claims that tribes must “hold” the waters to be regulated. This means the tribe, or an individual tribal member, or the federal government in trust for the tribe, must own the waters to be regulated. This poses challenges because tribes can be negatively impacted by waters that they do not own but are hydrologically interconnected with waters they do own. Obviously, tribes needs some water within their reservation in order to be connected to exterior hydrology, but the language of the third condition does not properly reflect one purpose of the TAS system: giving tribes the power to protect themselves from exterior contamination.

Potential Solutions to the Shortcomings of TAS It should come as no surprise that the two easiest reforms to the TAS system are purely administrative. The language of the Clean Water Act plainly devolves power to tribes to regulate their own waters without any additional approval of authority. The EPA’s interpretation and implementation of Section 518(e) must be remedied to reflect the true nature of tribal sovereignty, not to mention a revised 518(e) would then be consistent with most other TAS clauses found in federal regulations. This does not solve the problem of continuing to force tribes into the federal regulatory framework, but as we have seen, compromises are necessary to accomplish anything. In lieu of a revision to the language of 518(e), the application process is unnecessarily demanding and critically underfunded. Tribes are being asked to complete large volumes of highly detailed surveys that are onerous relative to the average number of staff in tribal regulatory bodies. Of course, knowing what natural resources exist to be regulated is necessary to successfully regulate them, but tribes should be responsible to themselves, not the federal government, in this regard. Another revision to the application process could be the role of comment periods prior to approval of TAS status. There exists a public comment period, plus “appropriate governmental entities” are given the opportunity to debate jurisdictional boundaries and comment on the application. While this is consistent with other democratic processes, it is complicated in these cases by the unique sovereign status tribes have. Providing two avenues by which governments can slow the process of self-governance is unnecessary. Of course, it is threatening to neighbors to potentially cede power, but the point of the TAS system is to help tribes recapture power that had been usurped by those same neighbors. Plus, the way in which TAS “expands” the boundaries of a reservation make jurisdictional debates less relevant: if a discharge violates tribal WQSs, then that tribe is due reparations. The EPA has two main functions with respect to tribal WQSs: helping to build the capacity to operate environmental regulatory programs, and integrating the standards of those programs with upstream NPDES permit holders. Building capacity takes the form of sharing expertise, training staff, and financing the monitoring programs necessary to enforce water quality standards. The EPA should not put up additional barriers to entry, especially given tribes’ historic lack of capital in the first place. With regards to capital, the EPA’s Section 106 grant program is integral to the functionality of the TAS system, but funding for water quality monitoring networks is still insufficient. This is largely due to the surprisingly high cost of obtaining samples and contracting laboratories to analyze them. While it is necessary to continue the Section 106 grant program, especially for smaller tribes, a more efficient alternative would be to fund programs that build tribes’ capacity to complete the entire monitoring process in-house. This means training technicians to collect samples, subsidizing tools like chromatography machines and other analytical equipment, and providing education so tribes can analyze their samples without the cost of a contracted, third party lab. This may introduce

the potential for conflicts of interest and raise questions about the legal defensibility of samples, but these problems are solvable. This would also be more consistent with the federal policy of Native American self-determination.

Conclusion

In theory, the TAS system is well suited for protecting tribal sovereignty by amplifying tribes’ political voices, advancing the state of infrastructure within reservations, and forcing upstream users to comply with downstream standards. In practice, however, the current implementation of the TAS program features patently low-hanging fruit that is ripe for reform. The true value of the TAS system emerges from how it allows tribes to more fully assert their allegedly inherent sovereignty. TAS enables tribes to assume “a core governmental function, whose exercise is critical to self-government... environmental self-regulation is critical to tribal sovereignty” (Sanders 2009). Self-regulation is key because, “tribal governing institutions [are] more productive and effective when they fit with the tribe’s cultural norms and understandings” (ibid). TAS allows tribes to follow their own traditional ethics and values when codifying the uses and standards for their water. “[A] tribe’s ability to control its environment is empty indeed if water cannot be put to uses which are important to the people of the region” (Fort 1995). Cases like the Pueblo of Isleta’s establishment of primary contact ceremonial use or their standards for arsenic based on their traditional diet serve as prime examples of how traditions and culture can be protected through environmental regulation. This concept of culturally-sensitive environmental management is not just a good idea; it’s a basic right according to the First Amendment in the United States’ Bill of Rights, as well as Article 18 of the Universal Declaration of Human Rights. The Fundamental Laws of the Diné (self-referential name for Navajo people) also recognizes this basic right, “[t]he four sacred elements of life, air, light/fire, water and earth/pollen in all their forms must be respected, honored and protected for they sustain life; and…[i]t is the duty and responsibility of the Diné to protect and preserve the beauty of the natural world for future generations” (The Fundamental Laws of the Diné). Navajo Nation ex-President Albert Hale adds that “…these are the elements that sustain us and help to define our sovereignty” (Dussias 1998). Cody Walker rephrased this sentiment in words more digestible to the average American and described an unlawful discharge into the Rio Grande to, “be like pouring 6 million gallons of sewage into your church” (Cody Walker, personal communication 2015). Jason Nez, an archaeologist and leader of Save the Confluence, succinctly describes the importance of sustaining Native American culture through environmental law: “Our differing value systems is what makes us human…when you’re connected to your history from 3000 years ago, you are standing on a mountain. You are strengthened by your culture…who am I without that? Without that, I am not Navajo” (Jason Nez, personal communication 2015). On a local level, water quality management results in an improvement to environmental conditions and therefore in-

dividuals’ health. A 1974 report by the Indian Health Service estimated that Native American families, “with satisfactory environmental conditions in their homes required approximately one fourth the medical services as those with unsatisfactory environmental conditions (Rogers 2003). TAS is especially good at helping to improve environmental conditions due to its influence on right-for-infrastructure exchanges within negotiated water settlements. The ability to achieve primacy over water quality standards and public water supply systems makes projects like the Navajo-Gallup Water Supply project, which is expected to serve 80,000 Navajo who are currently hauling water, much more feasible. Even without super-projects like the NGWSP, TAS still gives tribes access to state and federal funds necessary to serve more clean water to more people. Serving clean water does double duty for benefiting tribes. Clean water leads to better environmental conditions and therefore health, but from a long-term perspective, access to clean water catalyzes the economic growth necessary to break the cycle of chronic poverty found in many reservations. “It has been asserted that economic development…is largely dependent upon a reliable water supply and water infrastructure” (Widdison 2012). “The fact that the mean income of Navajo families is below the poverty line can be attributed, in large part, to the lack of water supplies within the reservation” (Draft Water Resource Development Strategy for the Navajo Nation 2011). Clean water is the limiting reagent that prevents tribes in the southwest from developing as they see fit. Not all people view the current practice of negotiated water settlements as progress, however. Jason John believes these agreements are powerful in their ability to fund necessary infrastructure project, and adds that compromise is a necessary component of all negotiations (Jason John, personal communication 2015). Jason Nez, on the other hand, sees the forfeiture of water rights in exchange for infrastructure as a reinforcement of white supremacy and colonialism. From his perspective, deals like the NGWSP are promoted by the belief that Natives are inadequate and cannot develop their own resources. He admits that compromise is necessary to settle water rights, but fears the current sprint to do so could prove to be a poor strategy (Jason Nez, personal communication 2015). Dion Ben, a member of the Navajo Nation and associate at the Grand Canyon Trust, agrees with Jason Nez in this regard. “Do not jump on the bandwagon,” he tells me in an informal conversation as we wandered the North Rim of the Grand Canyon. “We don’t know the full quantity [of our claims], we don’t know the quality either” (Deon Ben, personal communication 2015). Deon tells me that Navajo must resolve these issues first to realize the true value of their water prior to selling it. In Deon’s eyes, the NGWSP is a failure because the infrastructure was purchased with rights of undetermined quality, and therefore value. Sarana Riggs, a member of the Navajo Nation and volunteer at the Grand Canyon Trust, agrees with Deon’s sentiment. She described modern times as a “point of no return” for the Navajo people (Sarana Riggs, personal communication 2015). She believes the nation must slow down before selling off too many rights in order to properly valuate the water resources of Navajo Nation.

Despite the arguments put forward by Sarana, Deon, and Jason Nez, the TAS system still has a great potential to strengthen tribal sovereignty through the assumption of new environmental management roles. TAS separates reservations from the potentially harmful contents of shared water bodies and allows tribes to dictate the quality of water that flows into their reservation. This gives tribal governments greater political influence in their respective regions and boosts their bargaining power during negotiations to settle water rights and develop water infrastructure. Catalyzing infrastructure development is one of TAS’s best impacts considering the high poverty rates and low access to public water supply systems found in Navajo Nation and other reservations. TAS also allows tribes to promote and protect their traditional values and practices through establishing beneficial uses that are harmonious with their traditional cultures. All of this amounts to more sovereign and effective tribal governments. The results are only as good as the law, however. The

language of the CWA is clear in its recognition of the inherent authority of tribes to regulate themselves. The EPA’s interpretation when executing this law does not yet properly reflect the assumption of regulatory authority that Congress intended for. If the purpose of the TAS program is to allow tribes to achieve primacy over environmental regulations, then the most essential modification to the current implementation of TAS under the CWA would be to assume tribal authority to self-govern. This would recognize the law’s intent to devolve the authority to self-govern instead of the EPA’s present interpretation that the authority must be delegated through a “prohibitively onerous” application process. Thankfully, the EPA appears to be proceeding with its proposed modification to their interpretation of the Clean Water Act. Doing this will benefit all parties, as it correctly accounts for the sovereign status of Native American tribes while streamlining the complex, expensive, and lengthy processes used to manage water quality and quantity in the western United States.

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Environmental Protection Agency, 2015. Revised Interpretation Of The Clean Water Act TAS Provision: Proposed Rule. Washington D.C.: Office of Science and Technology. “Fact Sheet and Supplemental Information for the Proposed Issuance of a National Pollution Discharge Elimination System (NPDES) Storm Water General Permit for Municipal Separate Storm Sewer Systems (MS4s) in the Middle Rio Grande Watershed.” Fact Sheet on Snake River Water Agreement (2004). Idaho: Idaho Water Resource Board. Federal Funding For Non-Federally Recognized Tribes. 2015. Indian Issues. Washington DC: United States Government Accountability Office. Federal Water Pollution Control Act (Clean Water Act) of 2002. 33 U.S.C. §§101-518. Fort, Denise D. “State and tribal water quality standards under the Clean Water Act: A case study.” Nat. Resources J. 35 (1995): 771. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000). The Fundamental Laws of the Diné (Navajo). 1 N.N.C. §§201-206. Gerlak, Andrea K., and John E. Thorson. “General Stream Adjudications Today: An Introduction.” Journal of Contemporary Water Research & Education 133, no. 1 (2006): 1-4. Grant, Jill Elise. “The Navajo Nation EPA’s Experience with” Treatment as a State” and Primacy.” Natural Resources & Environment (2007): 9-15. Kershaw, J. (2013, March 14). Secretary Salazar Finalizes Historic Aamodt Water Rights Settlement in New Mexico. States News Service. Retrieved July 30, 2015, from http://www.highbeam.com/doc/1G1-322333651.html. Leisy, Andrea K. “Inherent Tribal sovereignty and the Clean Water Act: The effect of Tribal water quality standards on non-Indian lands located both within and outside reservation boundaries.” Golden Gate UL Rev. 29 (1999): 139. Maupin, Molly A., Joan F. Kenny, Susan S. Hutson, John K. Lovelace, Nancy L. Barber, and Kristin S. Linsey. Estimated use of water in the United States in 2010. No. 1405. US Geological Survey, 2014. Miller, Char. “The New Water Czars.” In Water in the 21st-century West: A High Country News Reader. Corvallis, Oregon: Oregon State University Press, 2009. Navajo Nation Clean Water Act. Navajo Nation Safe Drinking Water Act. “Navajo Nation Water Code.” Accessed July 21, 2015. http://www.watercode.navajo-nsn.gov/ New Mexico Office of the State Engineer Interstate Stream Commission,. 2013. Presentation To The Interim Water And Natural Resource Committee And Drought Subcommittee. “NTUA Water Rates.” Navajo Tribal Utility Authority. Accessed November 5, 2015. Omnibus Public Lands Management Act of 2009. Public Law 111-11, §§10601-10809. Paulsgrove, Ed. “Pueblo of Isleta Rio Grande Island Removal and Bank Stabilization Project.” Public Notices to Albuquerque District of the US Army Corps of Engineers. July 11, 2013. Accessed August 5, 2015. “Project Specifics of the Navajo Water Project.” DigDeep. Accessed November 5, 2015. Pueblo of Isleta Settlement and Natural Resources Restoration Act of 2006, Pub. L. No. 109–379, 109th Congress., (December 1, 2006) Online Law Library of Congress. Rodgers Jr, William H. “Treatment as Tribe, Treatment as State: The Penobscot Indians and the Clean Water Act.” Ala. L. Rev. 55 (2004): 815-1167.

Rogers, C. L. “The Sanitation Facilities Construction Program of the Indian Health Service.” Public Law: 86-121. (2003). Royster, Judith. “Oil and water in the Indian country.” Natural Resources Journal 37, no. 457 (1997). Sanders, Marren. “Clean Water in Indian Country: The Risks (and Rewards) of Being Treated in the Same Manner as a State.” William Mitchell Law Review 36 (2009). San Juan River Basin in New Mexico Navajo Nation Water Rights Settlement Agreement. New Mexico, 2005. San Juan River Basin in New Mexico Navajo Nation Water Rights Settlement Agreement. New Mexico, 2009. Santafenm.gov, 2015. ‘Water Division Of The City Of Santa Fe, New Mexico’. http://www.santafenm.gov/water_division. Santos, F. (2015, July 13). On Parched Navajo Reservation, ‘Water Lady’ Brings Liquid Gold. The New York Times. Retrieved July 22, 2015, from http://www.nytimes.com/2015/07/14/us/on-parched-navajo-reservation-water-lady-brings-liq uid-gold.html?ref=earth&_r=1. Steincamp, Charles C. “Citizenship: A Discussion of Environmental Citizen Suits.” The Cherokee Nation v. The State of Georgia, 30 U.S. 1, 8 L. Ed. 25, 8 L. Ed. 2d 25 (1831). The Navajo Nation Office of the President and Vice President, 2010. Navajo President Joe Shirley, Jr., Joins Interior Secretary Ken Salazar To Sign San Juan River Water Settlement; Will Bring $1 Billion Project. “Treatment in a Similar Manner as a State Portal.” EPA. July 8, 2015. Accessed July 21, 2015. http://www.epa.gov/tribalportal/laws/tas.htm. Tribal Resource Directory for Drinking Water and Wastewater Treatment. (2006). In EPA 832-R-06-007. Washington D.C.: Envi ronmental Protection Agency. United States Department of the Interior. 1990. Working Group In Indian Water Rights Settlements: Criteria And Procedures For The Participation Of The Federal Government In The Negotiations For Settlement Of The Indian Water Rights Claims. Washington DC: Federal Register. Vigil, Darryl. 2013. ‘Colorado River Basin Tribes’ Partnership Testimony Regarding The Bureau Of Reclamation’s Colorado River Basin Water Supply And Demand Study’. Speech, Subcommittee on Water and Power of the Senate Committee on Energy and Natural Resources. Walton, B. (2015, July 1). In Drying Colorado River Basin, Indian Tribes Are Water Dealmakers. Circle of Blue. Retrieved July 22, 2015, from http://www.circleofblue.org/waternews/2015/world/in-drying-colorado-river-basin-indian-tribes-are-water-dealmakers/. Walton, Brett. “Price of Water 2015: Up 6 Percent in 30 Major U.S. Cities; 41 Percent Rise Since 2010.” Circle of Blue WaterNews. April 22, 2015. Accessed November 5, 2015. “Water Management Branch.” Accessed July 21, 2015. http://www.frontiernet.net/~nndwr_wmb/. ‘Water Resources Of The Navajo Nation: Closing The Gap Between Water Supply And Demand’. 2014. University of Arizona. Watershed-Based National Pollutant Discharge Elimination System (NPDES) Permitting Implementation Guidance. (2003). In EPA 833-B-03-004. Washington D.C.: Environmental Protection Agency. Watkins, Kevin. “Human Development Report 2006-Beyond scarcity: Power, poverty and the global water crisis.” UNDP Human Development Reports (2006). Widdison, J. (2012). Navajo-Gallup Water Supply Project. In Water Matters! Albuquerque, New Mexico: Utton Transboundary Resources Center. Www2.epa.gov, 2015. ‘EPA Approvals Of Tribal Water Quality Standards’. http://www2.epa.gov/wqs-tech/epa-approvals-trib al-water-quality-standards.

“Reflection on Lake Thomas” by Ryan Bing, Class of 2017 Second Place, 2015 State of the Rockies Photo Contest

Brendan Boepple

Opposing the Grand Canyon Escalade Project: Navajos and River Runners as Cultural Stakeholders by Maya Williamson, 2015-16 State of the Rockies Project Fellow At the eastern limits of Grand Canyon National Park, on the border of the Navajo Nation and over 20 miles away from the nearest town, is the confluence of the Colorado and Little Colorado Rivers. The confluence, which is considered a sacred place for pilgrimage and prayer by many Navajo and Native American people, is currently the site of a major development proposal. Confluence Partners LLC, a group comprised of lawyers, large-scale development planners, financiers, and members of the Navajo Nation seek to construct a multi-billion dollar resort on the South Rim of the Canyon, as well as a gondola down to the canyon floor. The project has garnered media attention for its controversy, and four years down the line, Confluence Partners continue to face resistance from Navajo People, the tribal group Save the Confluence, as well as the Grand Canyon Trust and other national conservation organizations. The debate over the Escalade Project reflects a larger debate over the role of cultural values alongside economic values. Introduction

At the Eastern limits of Grand Canyon National Park, on the border of the Navajo Nation and over 20 miles away from the nearest town, is the confluence of the Colorado and Little Colorado Rivers. The confluence has remained largely untouched and is considered a sacred place by many of the Navajo people, as well as multiple other tribes such as the Zuni, who have a traditional pilgrimage to the confluence, and the Hopi, who have historically used the confluence as a site for shrines and prayer. However, in 2012, Confluence Partners LLC, a group comprised of lawyers, large-scale development planners, government consultants, financiers, and members of the Navajo Nation, proposed the Grand Canyon Escalade project. The Escalade project plans to construct a multi-billion dollar resort including hotels, shops, and restaurants on the South Rim of the Canyon, as well as a gondola down to the canyon floor. The project is problematic for many reasons; there are concerns regarding the environmental impact of the project, the supposed economic benefits, and the implications of construction work at a sacred site. The Grand Canyon Escalade project is currently a major point of contention not only among the Navajo, Hopi and Zuni, but also for conservationists, economists, lawyers, and outdoor enthusiasts across the country. In this paper, I examine the perspectives of two groups of stakeholders in the Escalade project: Navajo People and river runners. Within these two groups, I investigate the dynamics between the stakeholders. I first address the clash between the Navajo who support economic development and those who advocate for environmental and cultural preservation; second, the potential for alliances between Navajo People and river runners as opponents to the project; and third, the conflicting interests

and incentives between commercial river runners and private recreationists. I focus my discussion on river runners and Navajos to show how these two groups of stakeholders express the value of water from a personal and cultural perspective rather than the more technical fields that tend to dominate discussions around Western water. Through this analysis, I discuss needed changes in how we address Western water issues so that cultural or ethnographic perspectives are not silenced or dismissed in a field dominated by economics, law, and engineering. Western society tends to favor empirical knowledge and quantitative metrics, leading us to disregard other ways of knowing which are no less important. Historically, Native Americans have relied on what has been framed by academics as Traditional Ecological Knowledge (TEK), a way of understanding Native Americans relationship to the land (Berkes 1999: 4). Although there is no universal definition of TEK, it is widely understood as knowledge that relies on cultural continuity and has been â&#x20AC;&#x153;transmitted in the form of social attitudes, beliefs, principles, and conventions of behavior and practice derived from historical experienceâ&#x20AC;? (Berkes 1999: 5). TEK combines culture and science, and is perceived by the Navajo as being not only a way of knowing, but also as a way of life. Building on the principles of TEK, this paper demonstrates that qualitative perspectives such as personal connection and cultural value need equal footing alongside quantitative perspectives in Western water.

Relationship between Navajos and the Confluence

In order to understand the full extent of the relationship that Navajo people have with water, one must begin by exploring the history of the Navajo people, specifically their emergence story.

Maya Williamson is a Fellow for the 2015-16 State of the Rockies Project. Maya grew up in London, England. She has a passion for rock climbing and has traveled around the Rocky Mountain West over weekends and block breaks. She will graduate from Colorado College with a degree in Anthropology in 2017. As an Anthropology major and outdoor enthusiast, her research focuses on the overlap and conflict in interests between Native American communities and the commercial rafting industry.

In the Navajo language, this story is known as Diné Bahane, and it begins at “Place Where The Waters Crossed,” or in other words, the Confluence (Zolbrod, 1984: 35). The Navajo people believe that they were born from this Place Where The Waters Crossed, and since then, they have traveled through four worlds to arrive at the world we inhabit today – the fifth world. “The Navajo people were here during the creation of this world as it is today and thus they still have the stories and remember the creation,” explains Zolbrod (1984: 21) in the introduction to his book. This is why it is so important for the Navajo to protect their land today. When it comes to the confluence, the exact role that this sacred location plays in the lives of the Navajo is hard to pinpoint. Details of the Diné Bahane are unknown, since the Navajo are hesitant to speak with non-Navajos about their story. According to one scholar, “Many families have proprietary feelings about the traditional knowledge of their elders, who normally would pass it down to younger generations within the family while restricting it to outsiders” (Roberts 1995: 14). When the State of the Rockies research team met with Helen Webster, manager of the Little Colorado River Tribal Park, she spoke briefly about the Navajo origin story. Not wanting to disclose deeply sacred knowledge, she instead offered us a metaphor- you don’t stare between a woman’s legs when she’s giving birth, so why should the confluence become a spectacle for tourists? Webster’s words emphasize the value of the confluence for Navajo Natives as a sacred, private place. Navajo people’s deep connection with the confluence can also be understood in the context of the deities that exist there. Schaafsma and Tsosie write that certain places are classified as sacred “because of mythological associations with particular deities and that only ceremonial practitioners can visit these spots” (Shaafsma and Tsosie 2009: 236). The canyons of the Little Colorado and Colorado Rivers are home to many Navajo deities. One example is the Salt Woman, who inhabits the salt mines located at the site of the proposed Escalade project. Zolbrod describes the process of visiting this site, making it clear that visitors must be mindful of the sacred nature of this site: When you get to the salt mine you must make an offering there and also on the way back up. When you are down there, you must think holy, do not think or say bad things. The salt is sacred and is a gift from Salt Woman. The Canyon itself is a home for Holy People, they live in the Canyon and all the side canyons. That is why when you are at the Canyon or in the canyon you must prepare yourself. You may injure yourself physically or spiritually if you do not keep your visits holy. (Zolbrod 1984: 27) The Navajo have always defined sacred places among the lands that surround them, but all of these sacred places exist in a historical context, and it is important to consider how the relationship between the Navajo and their sacred places has changed over the years. One significant factor is the increased threat to sacred places. Both Roger Clark and Tony Skrelunas of the Grand Canyon Trust attribute the problems being faced by the Navajo Nation to colonialism and the imposition of capitalism. Clark, the Grand Canyon Program Director, describes the current ‘co-

lonial’ model of economic development wherein outside investors offer deals, and make money by commoditizing Native culture. Skrelunas, the Native American Program Director, echoes this sentiment saying, “The federal policy was always about acculturating us… they wanted to civilize our people.” Native cultural values have come under scrutiny, leaving the Navajo people faced with having to defend what is sacred to them in the face of corrupt economic incentives. Justifying their connection to the public requires operating within the framework of Western ways of thinking. Threats to Navajo sacred sites have resulted in the emergence of a divide within the nation; some Navajo People have held steady to their belief that the lands that surround them are sacred, and these are the people who, when confronted with propositions for economic development, will continue to fight for cultural preservation. On the other hand, there are members of the Navajo Nation who prioritize economic development.

Arguments for and Against the Escalade Project from a Navajo Perspective

With this divide in mind, I examine the arguments that are put forward by Navajos both in support of, and in condemnation of, the Escalade project. Among those who support the Escalade Project are Navajos who argue that there is a dire economic crisis on the Navajo Nation, with unemployment as high as 57 percent in some communities, and 38 percent of all people on the Reservation living below the poverty line (Nania et al. 2014:10). Confluence Partners rely primarily on the argument that the Escalade Project is catering to a much-needed economic boost within the Navajo Nation, and that the development will help to significantly decrease unemployment figures on the Nation. Proponents of the Escalade project also argue that the development will simply make the Grand Canyon more accessible to visitors, and will offer a unique tourist experience. Confluence Partners LLC assert that the Escalade Project will make the Grand Canyon much more accessible to tourists, framing the development as an act of public service. According to Confluence Partners’ Master Land Use Plan, “The Escalade gondola tramway to the Canyon floor will provide a unique and unmatched ability for the casual tourist to actually visit the Canyon floor and the Colorado River” (Confluence Partners) (see Figure 1). If you ask Confluence Partners, they are simply providing for the masses; the site of the development is public land, and all citizens should have equal access to the land, not just Native Americans who claim that the land is sacred to them. In the opinion of Confluence Partners, the proposed development is ethical because there is “no evidence of any sacred sites within the project boundaries or that would be negatively impacted by the project” (Confluence Partners). Finally, there is the argument that river runners, who take advantage of the canyon as their personal playground and pollute the site as they pass through, have already desecrated the natural beauty of the confluence. Confluence Partners complain that the National Park Service offers 24,657 permits to river runners and that these river runners inevitably swim in, party at, and abuse the sacred nature of the confluence. In a photo caption they write, “and we’re led to believe that this

is not a desecration of a Sacred Site as long as you’re willing to drop a cool $2,850 to a commercial raft concession. But don’t even think about $40 to ride a gondola” (Confluence Partners). However, when it comes to opponents of the Escalade Project, many take issue with the arguments of the Confluence Partners. Clark, for one, believes that wilderness advocates, river runners and commercial river runners all have the goal of providing quality experience in an undeveloped area, and that using river runners as an excuse to violate the land is a weak case. Likewise, Navajo archaeologist and Save the Confluence representative Jason Nez, has floated the Colorado River and has had interactions with many river runners. He attests that, for the most part, river runners come to the Grand Canyon to immerse themselves in the untouched, natural beauty of the area, in search of a true wilderness experience. Besides, as Nez says, the argument that the sacredness of the Confluence is already violated is deeply flawed because, “two desecrations will never make a right.” For thousands of years, generations of Navajos have journeyed to the confluence to perform rituals and leave offerings to show their respect for this sacred site. Unfortunately, this reasoning for protecting the confluence is often dismissed by developers who are looking for economic gains. Clark suggests that while all values should be respected equally, non-Natives find it difficult to respond to values that are not “measurable, tangible, or locatable.” On the other hand, Webster believes that developers are perfectly capable of comprehending the significance of the confluence. According to Webster, “they understand, but they don’t care, it’s greed.”

Figure 1: Grand Canyon Escalade

Source: www.grandcanyonescalade.com

In the introduction to Nabokov’s book, “Where the Lightning Strikes: The Lives of American Indian Sacred Places,” he makes a plea to non-Natives that they might become more aware of Native history and the significance of the land. He writes: “May they become more respectful of the thousands of years of human thought, prayer and ritual that have saturated the places where they live. And may they be more willing to support Indian peoples in their struggles to maintain these sorts of connections to the American earth” (Nabokov 2006: 8). Ten years later, sacred Native sites continue to be violated, and Nabakov’s call to duty remains valid. Some also see a way forward that can balance cultural preservation with economic development by investing in projects that are sustainable, community driven and culturally appropriate. Clark spoke about tackling the question of “how to make conservation the foundation of economic growth,” while Skrelunas echoed similar sentiments, expressing a desire to pursue a tourist-based economy within the framework of cultural and environmental protection. When asked about these alternatives solutions to economic growth, Clark and Skrelunas both suggested ‘rustic’ or ‘off-the-grid’ lodging, as well as guiding and stewardship opportunities. Skrelunas also mentions the necessity of social entrepreneurship, which would utilize business techniques to find solutions to problems such as cultural and environmental preservation. One such example of social entrepreneurship in the Grand Canyon area is the Diné Innovative Network of Economies in Hózhó (DinéHózhó). DinéHózhó “offers an alternative to outside investors imposing top-down, unsustainable, culturally inappropriate Master Land Use Plan development plans,” instead offering community-based tourism plans that support Navajo owned businesses (Grand Canyon Trust). These projects would therefore differ from the Escalade Project, which, as Helen Webster lamented, would benefit the development magnates while Navajo Natives and other community members would be saddled with low skill, minimum wage jobs. Ultimately, these suggested alternatives demonstrate that sustainability and economic development are not mutually exclusive. Confluence Partners LLC maintains that the development will impact the surrounding community positively, yet concerns regarding cultural and environmental degradation continue to arise. If the Escalade development is marketed as a

Campaign Poster for Save the Confluence. Source: www.grandcanyontrust.org

problem-solving project, it begs the question—why not pursue alternative projects that would maximize benefits to the community and minimize damage to the environment and sacred sites? Since the initial proposal, Confluence Partners have continued to put increased emphasis on how the Navajo Nation will benefit from the Escalade Project. Most notably, the developers have adopted the slogan “Our Land, Our Community, Our Children, Our Future,” suggesting that the project is simply taking charge of what is rightfully theirs in order to improve the lives of their community members now and for generations to come. Among other things, Confluence Partners allege that the Escalade Project will create 3,500 jobs both on and off site, however both Clark and Webster are skeptical about this bold statement. When I asked Webster if she thought the Escalade Project would create jobs and revenue for the Navajo Nation she said, “I don’t think so,” adding that any jobs for Navajos will likely be minimum wage. Many Navajos also fear that the developers will take advantage of their compromised economic situation. But the Navajo people know they can do better, and as Jason Nez of Save the Confluence observes, “There are stereotypes that we’re poor and we’re desperate, and we are, but we also have our dignity and our pride.” When it comes to defining the boundaries of sacred sites it is once again the imposition of capitalist principles that is so problematic. In his article, “Native American Sacred Places and the Language of Capitalism,” Professor Adam Fish explains that the practice of labeling sacred sites as ‘property’ “marginalizes those… who are not dedicated to the ideology of private property, and who do not experience place as a resource but as

something contiguous, eminent, and beyond commodification” (Fish 2005: 46). Here, we return to the reoccurring theme of quantification; whereas Navajos view the land holistically, developers believe that the Escalade Project could not possibly be violating anything of cultural value to the Navajos simply because there are no listed sacred properties within the proposed development area. In Fish’s words, “the structural problem is the definition of the sacred as “property” or as a “resource” that can be divided and sold as opposed to a holistic semantic category that includes environmental, ambient, metaphysical, and cognitive attributes” (Fish 2005: 45). Reflecting on Confluence Partners’ reasoning for building the Escalade project, they often fall short of incorporating these “environmental, ambient, metaphysical, and cognitive attributes.” Instead, they have chosen to emphasize the economic returns of the project, although whether these economic returns will directly benefit the Navajo community remains unclear. Developers claim that the Escalade project is necessary to boost the Navajo economy, yet they continuously disregard smaller, more sustainable business projects proposed by local community members. They claim to want to make the Grand Canyon more accessible to visitors, yet they intend to implement permanent, irreversible changes to the landscape in order to do so. They declare that the development is ethical because there are no sacred sites on paper, yet they refuse to acknowledge the concerns voiced by Navajos.

Connection between River Runners and Nature

Having examined the perspective of the Navajos, a further exploration of river runners as secondary stakeholders in the proposal of the Grand Canyon Escalade project is necessary. To begin, there is the question of how river runners connect with the Colorado River and the Grand Canyon, and whether their connection to the land is at all comparable to that of Navajos and the land. People for whom river running is a passion often speak about their experiences using spiritual language. This phenomenon has been labeled “Aquatic Nature Religion.” Aquatic Nature Religion is a branch of Nature Religion, a term first coined by Catherine Albanese in 1991. Although the literature surrounding Nature Religion lacks a precise definition of the term, perhaps one of the most concise attempts comes from Beyer who understood Nature Religion to be “any religious belief or practice in which devotees consider nature to be the embodiment of divinity, sacredness, transcendence, spiritual power, or whatever cognate term one wishes to use” (Beyer, 1998: 15). Aquatic Nature Religion, by extension, focuses on a connection with water, and applies the notions of divinity, sacredness, and transcendence accordingly. The experiences that one has while participating in activities such as canoeing, kayaking, or rafting can evoke “a sense of wonder, awe, wholeness, harmony, ecstasy, transcendence, and solitude,” all of which contribute to the legitimacy of Aquatic Nature Religion as a religion (Price 1996, 415).

So how do these theoretical ideas of Aquatic Nature Religion relate to the real experiences that river runners have? Sanford, in his book “Pinned on Karma Rock: Whitewater Kayaking as Religious Experience,” describes the way in which “many outdoor recreation enthusiasts, consciously articulate their experiences using language drawn from religious traditions and report their experiences as transformative and regenerative” (Sanford 2007: 880). Likewise, Price in “Naturalistic Recreations” wrote that the language used to describe experiences in the outdoors “frequently becomes poetic and invokes religious metaphors” (Price 1996: 417). One pertinent example comes from Walbridge and Sundmacher’s “Whitewater Rescue Manual,” in which they claim that “to run rivers is to live in the present, realizing ever more fully what it means to be a human being moving across the earth amid powerful natural forces” (Walbridge & Sundmacher 1995: 1). Within this declaration one can recognize allusions to a sense of connection to the earth. Here the white water experience allows for a transformation in which the river runner becomes more human, or at least gains a more comprehensive understanding of what it means to live in and interact with the natural world. Another quote from Balf ’s “The Last River,” says, “if the questing soul needs nourishment in places where the human feels speck-sized, where they are absolutely bowed before the force and cataclysmic beauty of nature, then a deep whitewater gorge is one of life’s obvious destinations” (Balf 2000: 150). In this sentiment, Balf is expressing the humbling reaction that comes from interacting with rivers, which can be likened to the religious experience of realizing one’s insignificance relative to the divine and powerful forces of the world. So what specific qualities do rivers possess that inspire these sorts of emotional and spiritual reactions from the people that interact with them? In an account of her personal experience paddling solo through the Grand Canyon, McCairen wrote, “Magnetically the wave draws me to itself as illusion and reality blend and entwine” (McCairen 1998: 173). This description evokes an image of the water as an omnipotent force that is capable of making the natural into something supernatural. Another articulate passage from Kane’s “Running the Amazon” offers a personified description of the river: It was impossible not to think of the river as having a will and intent of her own. In the end, however, it was as sound, a voice that most gave her life—she roared as she charged through the canyon. She seemed not only wilful but demonic, bent on the simple act of drowning us. You could shout at her, curse her, plead with her, all to the same effect: nothing. She barrelled on indifferent, unrelenting (Kane 1999: 232). In this description, Kane uses vocabulary that deifies the river. The idea that the river has a will or intent that dictates the fate of the river runners is similar to the idea of people being subject to God’s will in regular life. Additionally, the use of words such as ‘demonic’ and ‘curse’ imply that, like any other religions, nature can punish her worshipers. Having established that river runners experience some sort of ethereal connection with their surroundings, it is important to understand the similarities and differences that ex-

ist between the ways that river runner and Navajos relate to their natural surroundings. When it comes to this comparison, much of the debate arises from the dispute over the definition of the term religion. Albanese, who coined the term ‘Nature Religion’, wrote that “religions are action systems as much—if not more than— they are thought systems” and therefore, for Nature to qualify as a religion “the symbol of nature must… get out on the street [and] touch flesh, blood, and action” (Albanese 1990: 200). This is arguably what happens in the case of Aquatic Nature Religion, where river runners put themselves in such proximity to the rivers, that they relinquish some control of their actions to the forces of nature. In his work, Taylor outlines some of the criteria for Aquatic Nature Religion which, although it cannot be equated to deeply rooted cultural practices and beliefs of the Navajo, does demonstrate some overlap with Navajos’ spiritual connection with nature. Some of these criteria include “a perception that nature is sacred and worthy of reverent care... Conversely, damaging nature is considered to be an unethical and desecrating act” (Taylor 2007: 867). Both these values align with Navajo attitudes towards nature and the belief that natural, sacred places, such as the confluence, should be protected at all costs, as well as the condemnation of any permanent damage that could be done to the natural environment. Taylor also goes on to list “feelings of belonging and connection to the earth—of being bound to and dependent upon the earth’s living systems” as another criteria of Aquatic Nature Religion (Taylor, 2007: 867). This concept of dependence upon the earth corresponds closely to Navajo beliefs that their people were born from the earth, and rely on the earth’s forces for survival. It thus becomes evident that Navajo spirituality and Aquatic Nature Religion coincide in many of their core beliefs. Whereas river runners’ respect for the natural world stems from their personal interactions with strong forces of nature, Navajos’ spiritual connection to the environment derives from a long history of devotion to the powers of the natural world.

Contrasting Private and Commercial River Runners

Within the culture of river runners, there is a distinction between private and commercial river runners. It is particularly important to distinguish between these two sub-groups because their motivations for participating in river running vary greatly. These differences in motivation must be examined in order to understand how commercial river runners validate their argument against the Escalade Project when they themselves are cultivating economic benefits from the river. At this point, the essential question that remains is whether any attempts to forge a relationship between river runners and Navajos on the basis of shared interests is justifiable. Since the proposal of the Escalade Project, commercial rafting companies that operate in the Grand Canyon have stepped forward to denounce the construction plans. According to Hjerpe and Kim’s investigation, “Regional Economic Impacts of Grand Canyon River Runners,” the multi-million dollar white-water rafting industry brings several benefits to the Grand Canyon area. First and foremost, Hjerpe and Kim cite the fact that “commercial rafters of the Grand Canyon were responsible for $18,640,000 worth of expenditures

in the defined regional economyâ&#x20AC;? (Hjerpe & Kim 2003: 18). of things, these lands were taken from Native peoples during the This sounds like an impressive sum, until they mention that colonization of North America by European settlers. Initially, only $5000 of the total is spent on the Navajo Nation; that is less the fight against the Escalade Project was crowded by conservathan 0.03% of total expenditures. It is undeniable that commer- tion and advocacy groups, but since then, Navajos have emerged cial rafting companies have capitalized on the Colorado River at the forefront of the debate, and other stakeholders, including to acquire huge profits and so it seems the only leverage they river runners, should respect and give voice to their struggle. have when it comes to denouncing the Escalade Project is the claim that it will ruin the untouched beauty of the Grand Can- Conclusion yon that customers seek in their rafting experiences. This is the Quantitative and empirical views of water cannot fully angle that founder of OARS, a national rafting guide company, explain the Navajo attitude towards sacred places. Thus, qualGeorge Wendt took when he said, â&#x20AC;&#x153;the Escalade project would itative perspectives that illustrate the importance of cultural irrevocably mar the beauty and wilderness characteristics of the and spiritual sites deserve equal recognition in the debates surGrand Canyonâ&#x20AC;? (OARS). However, Confluence Partners coun- rounding the Escalade Project. Likewise, Navajos should not be teract with the argument that commercial rafters come in mas- forced to conform with Western ways of thinking in order to sive numbers and abuse the site of the confluence as their own defend their connection to the land. Rather than asking Navajos personal playground. In this sense, the case against the Escalade to explain their culture, traditions, and identities from a quanProject from the commercial rafting side lacks some legitimacy. titative perspective, developers should instead re-evaluate their Private river runners, on the other hand, cannot be own approach and broaden their outlooks in order to accomdismissed in the same manner as commercial river runners modate the qualitative perspectives presented by the Navajo. who claim to oppose the Escalade Project. The problematic aspect of private river runners comes from the fact that they very often come from wealthy, privileged communities. Among American rafters, 47% have an annual income above $75,000, and the same can be said for 55% of American kayakers, consequently many private river runners have the luxury of spending on recreational boating trips (Paddlesports Report 2015). Meanwhile, the Navajo Nation has an average unemployment level of 15.6%, on top of the fact that 38% of people on the Navajo Reservation live below the poverty line (Nania et al. 2014:10). This begs the question; do wealthy river runners have the right to denounce a development project that has the potential to create upwards of 3,500 jobs for the Navajo people? And yet, these are public lands, so should Navajos and river Public Artwork in the Grand Canyon Area denouncing the Escalade Project. Source: www.grandcanyontrust.org runners have equal say in what happens to the land? However contemporary this issue may be, it cannot be Unfortunately, there is no straightforward or easy anremoved from the history of colonization and imperialism that swer as to how to encourage people to listen to cultural perspeccontextualizes it. Does the fact that this land was taken from tives. It would likely require a fundamental shift in the Western Native peoples 400 years ago when European settlers arrived mindset that currently considers quantitative ways of knowing make the Navajo claim to the land more legitimate than that of to be more worthy of consideration than qualitative ones. In the river runners who use the land in a recreational sense? meantime, the Navajo should continue to confront developers Jason Nez wisely noted that the diversity of value sys- for their fallacious arguments and continue to insist on the cultems is what make us human, and when it comes down to it, tural value of the confluence as a sacred site. The more promiboth Navajos and river runners have declared that they value nent Navajo perspectives become in the debate, the better. This this area for cultural and spiritual reasons. Ideally, this would be is precisely why river runners would do well to support Navajos, enough for the two groups to work together in their fight against rather than trying to fight their own battle against the developthe Escalade Development, and yet there remains a feeling of ers. Conflict between the perspective of Navajos and the perhostility between the two. For one, Navajos have expressed frus- spective of river runners will only benefit developers because tration at river runners who visit their sacred sites without pay- divided opponents are easier to overcome. ing the appropriate respects, or even being aware that the sites Balance is essential to navigating the dispute over the Esare valuable to Navajos, and furthermore, in the greater scheme calade project. This balance is necessary in reconciling economic

development and cultural preservation, and moreover, in establishing the value of both quantitative and qualitative perspectives. It is in the subjectivity of cultural values that the Navajo arguments against the Escalade Development lose ground. Nevertheless, it is important to hear cultural perspectives, because cultural perspectives are about more than just culture. That is not to say that quantitative perspectives do not matter. Poverty and unemployment are the reality for many who live on the Navajo Nation, and job opportunities as well as new sources of income are feasible options to resolve these issues. But another, equally important aspect of reality is the

centrality of sacred sites to their identity as Navajos. The Escalade Development project would be more than just the loss of a sacred and culturally valuable site; the desecration of the confluence would also represent a loss of identity. Culture is an essential aspect of the Navajo identity, and in our willingness to dismiss cultural perspectives, we are also dismissing the validity of Navajo identities. In the words of Jason Nez, “What defines us as Natives is our belief. Our belief in our culture, and our belief in the places that are important to our culture. Our belief that the mountain is sacred, that the confluence is sacred, that the water is sacred—that’s what makes me Navajo.”

Bibliography Albanese, Catherine L. Nature Religion in America: From the Algonkian Indians to the New Age. Chicago: Chicago University Press, 1990. “Are There Really Sacred Sites? Really?” Confluence Partners. 2014. http://grandcanyonescalade.com/faqs-on-escalade-like-are there-really-sacred-sites-really/. Balf, Todd. The Last River: The Tragic Race for Shangril-La. New York: Three Rivers Press, 2000. Berkes, Fikret. Sacred Ecology: Traditional Ecological Knowledge and Resource Management. Philadelphia, PA: Taylor & Fran cis, 1999. Beyer, Peter. “Globalisation and the Religion of Nature.” Nature Religion Today: Paganism in the Modern World. Edinburgh: Edinburgh University Press, 1998: 11–21. Fish, Adam. “Native American Sacred Places and the Language of Capitalism.” Future Anterior 2, no. 1 (2005): 40-49. http:// eprints.lancs.ac.uk/65776/1/7_fish.pdf. “Grand Canyon Development Threats Are Real.” OARS. 2014. http://www.oars.com/blog/grand-canyon-development-threats-real/. Hjerpe, Evan E., and Yeon-Su Kim. “Regional Economic Impacts of Grand Canyon River Runners.” Journal of Environmental Management 85, no. 1 (2007): 137-49. doi:10.1016/j.jenvman.2006.08.012. Kane, Joe. “Running the Amazon: The Acobamba Abyss.” In The Liquid Locomotive. Legendary Whitewater River Stories, ed. by John Long and Hai-Van Sponholz K., 217–235. Helena, MT: Falcon Press, 1999. “Master Land Use Plan.” Confluence Partners. 2012. http://grandcanyonescalade.com/master-land-use-plan/. McCairen, Patricia. Canyon Solitude: A Woman’s Solo River Journey through Grand Canyon. Seattle, WA: Seal Press :, 1998. “More on Sacred Sites - Where Do 24,567 Rafters Go to Party?” Confluence Partners. 2012. http://grandcanyonescalade.com/ more-on-sacred-sites-at-the-confluence/. Nabokov, Peter. Where the Lightning Strikes: The Lives of American Indian Sacred Places. New York, NY: Viking, 2006. Nania, Julia, and Karen Cozzetto. Considerations for Climate Change and Variability Adaption on the Navajo Nation. Report. Boulder: University of Colorado, 2014. Outdoor Foundation, and The Coleman Company. 2015 Special Report on Paddlesports. Report. 2015. Price, Joseph L. “Naturalistic Recreations.” In Spirituality and the Secular Quest, ed. by Peter H. Van Ness, 414–444. New York: Crossroad, 1996. Roberts, Alexa. Bitsiis Nineezi, The River of Neverending Life: Navajo History and Cultural Resources of the Grand Canyon and the Colorado River. Window Rock, AZ: Navajo Nation Historic Preservation Dept., 1995.

Sanford, A. Whitney. “Pinned on Karma Rock: Whitewater Kayaking as Religious Experience.” Journal of the American Acade my of Religion 75, no. 4 (2007): 875-95. Accessed June, 2015. doi:10.1093/jaarel/lfm062. Schaafsma, Polly, and Will Tsosie. “Xeroxed on Stone: Time of Origin and the Navajo Holy People in Canyon Landscapes.” In Landscapes of Origin in the Americas: Creation Narratives Linking Ancient Places and Present Communities. Tuscaloo sa: University of Alabama Press, 2009. Taylor, Bron. “Exploring Religion, Nature and Culture—Introducing the Journal for the Study of Religion, Nature and Culture.” Journal for the Study of Religion, Nature and Culture 1, no. 1 (2007). doi:10.1558/jsrnc.v1i1.5. Taylor, Bron. “Focus Introduction: Aquatic Nature Religion.” Journal of the American Academy of Religion 75, no. 4 (2007): 863 74. doi:10.1093/jaarel/lfm065. Walbridge, Charles, Wayne A. Sundmacher. Whitewater Rescue Manual: New Techniques for Canoeists, Kayakers and Rafters. Camden, Maine: Rugged Mountain Press, 1995. Zolbrod, Paul G. Diné Bahane: The Navajo Creation Story. Albuquerque, NM: University of New Mexico Press, 1984.

State of the Rockies Fellows meet with Jason Nez, of Save the Confluence, on the North Rim of the Grand Canyon. Photo by Brendan Boepple

2015-2016 State of the Rockies Project Contributors Jessica Badgeley is the GIS Specialist for the 2015-16 State of the Rockies Project. Originally from

Seattle, Washington, she graduated in 2015 with a Geology major and Mathematics minor. This is Jessica’s third year on the project. Her GIS background includes employment in Colorado College’s GIS lab helping students learn to navigate GIS. Her main interest is in geology and Jessica produced a senior thesis on a remote sensing project that aims to reveal the origin of Blood Falls, Antarctica. Jessica has a great interest in the outdoors and conservation that fuels her enthusiasm for working with the Rockies Project.

Brendan Boepple is the Associate Director for the State of the Rockies Project. In his fifth year with

the Project, Brendan previously held the position of Program Coordinator from 2011 to 2013. Prior to that, he was a Student Researcher during the summer of 2010 and researched the Eastern Plains region of the Rocky Mountain States. Originally from Wilton, Connecticut, Brendan graduated from Colorado College in May of 2011 with a Political Science major and an Environmental Issues minor. While growing up Brendan developed a love for the outdoors and the environment, and he later worked with environmental organizations like Trout Unlimited and his local land trust. In the future, Brendan hopes to further his education in natural resource policy and management, and later pursue a career in that field. His interests include skiing and fly-fishing, two activities that drew him to the Rocky Mountain region.

Burkett Huey is a Student Fellow for the 2015-2016 State of the Rockies Project. Originally from

Chapel Hill, North Carolina, Burk is a lifelong hiker. For the State of the Rockies Project, Burk is researching agriculture and water supply. As a major in Economics at Colorado College, he is particularly interested in creating a fair model to price water for irrigators and municipalities. Burk will graduate from Colorado College in 2016.

John Jennings is a Student Fellow for the 2015-2016 State of the Rockies Project. John is originally

from Gainesville, Georgia, and he came to appreciate the outdoors through his experiences backpacking and camping with the Boy Scouts. He is completing an Independently Designed Major in Environmental Philosophy and Practice and will graduate in 2016. For the State of the Rockies, John is focusing his research on the ethics of water use. This research focus stems from his interest in philosophy and the natural world. In his free time, John enjoys hiking, throwing pottery, and cooking.

Brooke Larsen is the Program Coordinator for the 2015-2016 State of the Rockies Project. Brooke was a student fellow from 2014-2015, conducting research on land management in the Greater Canyonlands landscape of Southern Utah. She grew up in Salt Lake City, Utah and graduated in 2015 with a major in Environmental Policy and a minor in Anthropology. Growing up in Salt Lake, Brooke spent much of her free time hiking, biking, climbing, and camping in the Wasatch Mountains and desert of Southern Utah. Her childhood fostered a strong appreciation for the natural environment. She will continue her education in the environmental field in the University of Utah’s Environmental Humanities Graduate Program.

Eric Perramond is associate professor of environment science and southwest studies at Colorado College, and the 2015-16 Faculty Director for the State of the Rockies Project. Eric received his B.A. degree from Mary Washington College, his M.A. (1994) from Louisiana State University and Ph.D. (1999) from the University of Texas Austin, all in the discipline of geography. As a human environment geographer, Eric teaches in the environmental program and the southwest studies program, including environmental management, climate change, political ecology of the southwest, and other nature society courses. He conducted research in the Greater Southwest and the French Pyrenees, and is the author of “Political Ecologies of Cattle Ranching in Northern Mexico: Private Revolutions” (Tuscon, University of Arizona Press, 2010) and co-author of “An Introduction to Human Environment Geography: Local Dynamics and Global Processes” (2013, Wiley-Blackwell). His current research project (and next book) is centered on water rights, and water management, in the state of New Mexico, and has appeared in such journals as Water Alternatives and Geoforum. 60

Jonah Seifer is a Student Fellow for the 2015-16 State of the Rockies Project. Born outside Boston, Massachusetts, Jonah’s interest in environmental science was inspired by many years hiking and skiing around Vermont, as well as recent semester spent studying in New Zealand. His research for the State of the Rockies Project focuses on Native American water rights. An Environmental Physics major, Jonah will graduate in 2016. He plans to build off his experience with the Rockies Project and further explore the state of water policy in the West. In his free time, he likes to climb, ski, photograph and slackline. Maya Williamson is a Student Fellow for the 2015-16 State of the Rockies Project. Maya grew up in

London, England. She has a passion for rock climbing and has traveled around the Rocky Mountain West over weekends and block breaks. She will graduate from Colorado College with a degree in Anthropology in 2017. As an Anthropology major and outdoor enthusiast, her research focuses on the overlap and conflict in interests between Native American communities and the commercial rafting industry.

Stephen G. Weaver is an award-winning photographer with over 30 years experience making images of

the natural world and serves as technical director for the Colorado College geology department. Educated as a geologist, Steve combines his scientific knowledge with his photographic abilities to produce stunning images that illustrate the structure and composition of the earth and its natural systems. As an undergraduate geology student, he first visited the Rocky Mountains where he fell in love with the mountain environment and the grand landscapes of the West. Steve currently photographs throughout North America with a major emphasis on mountain and desert environments. His use of a 3x5 large format view camera allows him to capture images with amazing clarity and depth.

“Fall Foliage in the Rockies” by John Goldman, Class of 2016 First Place, 2015 State of the Rockies Photo Contest

State of the Rockies Project Mission:

The State of the Rockies Project engages students, faculty, conservation experts, and stakeholders to address critical environmental and natural resource issues through interdisciplinary research in the Rockies and the American West.

14 E. Cache La Poudre St. Colorado Springs, CO 80903 Rockies@coloradocollege.edu (719) 227-8145