The 2026 Colorado River Negotiations: A chance to address a century of brutal procrastination on Indian Water Rights.
By Ken Ransford, Esq., CPA
Originally published in the Santa Monica Daily Press
When seven states got together in 1922 to effectively divide up Colorado River usage, their resulting compact declared: “Nothing in this compact shall be construed as affecting the obligations of the United States of America to Indian tribes.” So, even more than a century ago, states recognized that Native Americans had rights to Colorado River water and, even earlier in 1908, the U.S. Supreme Court said in Winters v. U.S., that when we dedicated land to reservations it included enough water to make them habitable.
But the reservation treaties never said just how much water. A case of: Next question, please!
We still don’t know how much. But, thanks to University of Colorado Law School research, we know it is a lot. It is probably around 4 million acre-feet, which is about a third of the entire natural river flow, About a third of the Native American allotment, around 1.5 million acre-feet, is what the water community calls “wet water.” That is, water actually delivered to Indian Tribes. About another third has not yet been formally adjudicated, and the remaining water has been adjudicated but Congress hasn’t appropriated funds to build the pipes to get the water to the reservations.
That last third creates what water insiders call “paper water,” recognized in paper agreements but not actually delivered.
(An acre-foot is enough water to cover a football field, not including the end zones, with 12” of water. Water providers used to say it was enough water for two families for a year, now it’s enough for three, but on the Navajo reservation, where many subsist on 10 gallons a day or less, it supports about 80 people.)
All that history is becoming more important because we face a deadline. Political procrastination over decades has pushed nearly every aspect of Colorado River allocation into a series of 2026 federal deadlines. It's not unfair to describe it as a comprehensive reform of how we use the Colorado, which heavily supports both Southern California agriculture and Los Angeles drinking water supplies. If the states and other stakeholders, like the Indian Tribes, cannot agree, then the Trump Administration will likely decide for them.
Federal reclamation officials are soliciting alternatives from stakeholders in the “2026 Negotiations.” The Upper Basin states of Colorado, Wyoming, Utah, and New Mexico say they’re planning to use about 50 percent MORE than the four million acre-feet they’ve historically used to “grow into their supplies.” The Lower Basin states, including California, might be seen as a bit more practical, agreeing to immediately drop use to six million acre-feet, 80% of what they received in the 1922 Compact. But, still, they argue that the Upper Basin will have to absorb half of any cutbacks over that.
True to form, neither Basin plan said much about Indian water rights. Next question, please!
As many Southern California residents no doubt recall, in 2000 the Colorado River supply started dropping. The river had sustained a natural flow of about 15.2 million acre-feet per year all the way from 1906 to 2000 but dropped to only 10 million acre-feet per year from 2000 to 2004.
Things have improved, but only a bit—the last 25-year annual flow is about 12.5 million acre-feet—but with hotter temperatures, scientists expect the average natural annual flow by around 2050 to be closer to the 2000-2004 average of 10 million acre-feet per year.
Of course, it could be less. We don’t know.
In 2007, those same seven Compact States from back in 1922 agreed on “operating criteria” to govern how much water gets released from Lake Powell and Lake Mead. The federal Bureau of Reclamation, formed in 1902 to build those and all the other big dams in the West, drafted the 2007 Interim Guidelines to balance releases between Lake Powell and Lake Mead. In 2000, those reservoirs were 96 percent full. By 2005, they were less than 50 percent full, and today they’re 33 percent full.
And, remember, the Indian Tribes are still getting only about a third of their water.
Those 2007 Guidelines were based on demand: releases that were geared to meet Lower Basin states demand – California, Arizona, and Nevada, which the 1922 Colorado River Compact set at 7.5 million acre-feet a year. The 2007 Guidelines could have said water would be released based on supply, meaning how much the reservoirs actually held, but instead they focused on what the Compact said the states could demand. Come hell or low water.
As the name implies, the 2007 Interim Guidelines were short-term, set to expire in 2026 because a lone environmentalist, described on page 14 of the guidelines, told Reclamation we need to check in after 20 years to see how the fish and birds are doing.
Well, we might start that evaluation by noting we have completely dried up the last 75 miles of the Colorado River into the Gulf of California for most of the last 100 years, really since Hoover Dam was built in 1933. That now-dry area was formerly a productive estuary and important flyway for migrating birds. There are now four endangered fish species living in the Colorado River, and as many as 151 imperiled fish in rivers in the seven Colorado River basin states. From a river’s perspective, dams are about the worst thing you can do to them. From a state’s perspective, the endangered species act is about the worst thing you can do to rivers.
Before getting too wrapped around the axle, don’t forget we consume about 50 percent of the Colorado River flow just to grow hay. In the West, whoever got there first and diverted water from the river for a “beneficial use” gets the water. First it was mining, today it’s hay fields. The easiest way to prove “beneficial use” was (and is) to dig a ditch across rocky soil and flood a field to grow hay, which is among the thirstiest crops on earth. It takes about 24 inches of water to grow it in the Mile High State, and over 60 inches of water to grow it at the Mexican border.
As it gets hotter, crops need more water. It has not gone unnoticed in these highly political times that we sure do ship a lot of hay grown in the Colorado River Basin overseas, largely to China, Japan and Saudi Arabia.
We might also notice that in hard times, things get much, much worse for Indian “wet water.” Of the four million acre-feet that can be claimed by Indian Tribes, the Arizona tribes are entitled to just over half. Much of the “wet water” they now receive comes through what’s called the Central Arizona Project (CAP), a 1968 Congressional bill to divert up to 1.5 million acre-feet of Colorado River water 2,900 feet uphill to serve Phoenix and Tucson.
That bill came with an allotment cost—in times of shortage, Arizona’s CAP water is cut off first, meaning before California loses its share. That means the Arizona Tribes would be the first to suffer the shortfall, just the latest shot in our nation’s Indian wars.
Building infrastructure to get pipes to Indian Reservations so they can grow more hay is one solution. However, that’s much like installing telephone poles instead of cell phone towers to deliver phone service. Paying tribes to lease water to cities, or to leave it in the river to re-water the lower Colorado River Delta, are other approaches. Granted, the Native American water rights will be just one issue, but the 2026 Negotiations will govern Colorado River usage over the next 20 years starting October 1, 2026.
This process is really a generational opportunity to make better use of the Colorado River, a national treasure and still the lifeblood of civilizations built here millennia before newcomers began allocating resources. It’s also a chance to address a century of brutal procrastination on Indian Water Rights, or we can just revert to the existing policy: Next question, please!
About the author: For more than two decades, Ken Ransford has served on the Colorado Basin Roundtable, a volunteer advisory group formed by the state to help develop Colorado’s Water Plan. The Basalt, Colorado-area resident grew up in Pacific Palisades and is also a practicing attorney and CPA, however, he notes that he is not a water-law legal specialist.
