Basin Deal

New ‘sovereign-to-sovereign’ water agreement between Jicarilla Apache Nation and New Mexico aims to address Colorado River Basin shortages

The Jicarilla Apache Nation struck a deal with the New Mexico Interstate Stream Commission and environmental group The Nature Conservancy on Thursday to lease 20,000 acre-feet of its water annually to surrounding areas in an effort to blunt water shortages facing Colorado River Basin communities.

Officials lauded the agreement for its “sovereign-to-sovereign cooperation” between the three entities, saying water leased from the tribe will be used to support endangered and threatened fish populations and strengthen New Mexico’s water security.

“This project should serve as a model for effective tribal collaboration and arms-length negotiations among sovereigns throughout the Colorado River Basin,” said Daryl Vigil, water administrator for the Jicarilla Apache Nation, in a news release.

The nation had previously leased 25,000 acre-feet of water per year to the Public Service Company of New Mexico for use at coal-fired power plants in the Four Corners region. Vigil says the utility company also had a shortage sharing agreement for up to 8,000 acre-feet of that water with Arizona Public Service Company. That deal supplied the neighboring entity in the event of a water shortage.

But almost four years ago PNM terminated its lease with the nation in preparation to shut down coal-fired power generation, explains Vigil. The agreement with Arizona’s power company was terminated before that.

Without the agreement with PNM, “the Nation had 25,000 acre-feet that it had an inability to develop because there’s no market in the Four Corners for that type of that bulk water,” Vigil tells SFR. “There’s no ability to take it outside of state boundaries because of the law of the river. And so we were stuck.”

Without carryover provisions at the Navajo Dam, where the water is stored, and no way to bring the supply back to the reservation, “it went downstream for free,” says Vigil.

Vigil says the nation was in its third year of not being able to lease the water—letting other downstream consumers benefit from the unused supply at no cost to them—until the agreement with the Interstate Stream Commission came along.

Celene Hawkins, The Nature Conservancy’s Colorado and Colorado River tribal engagement program director, says New Mexico’s benefits are twofold. Not only will the water agreement help support recovery of endangered and threatened species, notably the Colorado pikeminnow and the razorback sucker, it will also ensure New Mexico complies with water rights set out in the 1948 Upper Colorado River Basin Compact.

“This lease has the potential to assist New Mexico with compact compliance if such a step becomes necessary,” writes Maggie Fitzgerald, spokeswoman for the Interstate Stream Commission, in an email. She adds, according to the Colorado River Compact, New Mexico is entitled to 11.25% of the 7.5 million acre-feet of that water per year.

The lease is set to last for 10 years, with an option to renew it if the parties wish to do so, explains Fitzgerald.

The nation already subcontracts water to users outside of its reservation, which serves as a source of income for the community. The newly inked deal stands as the first sovereign-to-sovereign agreement between a tribal and state government in the Colorado River Basin to lease water, says Vigil.

Vigil explains, prior to this agreement, resource transactions between the state and tribal communities were structured as “adhesion contracts:” drafted by one party, the state or federal government. But this deal represents a departure.

“We had a unique situation where we knew that if we’re going to build something in New Mexico that’s going to be a partnership, then it needs to be grounded in the spirit of a sovereign-to sovereign-relationship, where we’re equal partners in doing this,” says Vigil.

While the financial benefits of the new agreement are not equal to the PNM lease, which brought in “close to a couple million dollars a year,” Vigil says that the money the nation will receive is better than the loss of revenue incurred for the past three years. Vigil tells SFR the lease will bring in over $1 million annually.

Hawkins sees the agreement as a blueprint for solving water scarcity issues in the future.

“I really think that the timing of some of the nation’s water becoming available, as the basin is gripped in drought and there’s hard decisions in front of us, provided an opportunity to really think about the kind of solutions that we’re going to need moving forward in the basin,” Hawkins tells SFR.

Hawkins says this deal is a good example of how communities in the Colorado River Basin can do more with less water, referring to the multiple benefits, financial and environmental, resulting from the agreement.

Agreeing, Vigil says the nature of the deal should define the path forward. “The creation of a water future in New Mexico absolutely needs to involve the tribes in a formal way, where it’s the tribes participating because they want to participate as an equal partner, not somebody’s plan of how it should look like in the future,” he says.

Editor’s note: This story was updated with information from the New Mexico Interstate Stream Commission regarding the Colorado River Compact and endangered species affected by the lease.

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