The Ute Mountain Ute Tribe owns 16,525 acre feet of water in Lake Nighthorse – enough for over 30,000 homes annually – that can be used for municipal and industrial purposes. But a provision of the law that funded the construction of the reservoir meant the tribe had to pick up an estimated $600,000 annual tab for maintenance and operations costs when it began using the water.
But after 14 years of negotiations, drought response and forbearance compensation programs officially do not qualify as “first use” under the terms of a contract signed by the tribe and the U.S. Bureau of Reclamation in Las Vegas last week.
And that is a major victory for the tribe, said Peter Ortego, director of UMU’s department of justice.
The tribe still has no way to access the water in Lake Nighthorse. Nor is it currently eligible for federal drought conservation programs. But without knowing what legal terrain it might have to traverse, it has been difficult to advance any plans to either use or conserve that water.
“We haven't really dove into some real serious feasibility studies on some real serious plans yet, because we just don't know about what the cost of that water is going to be,” Ortego said.
The contract brings the tribe one step closer to using – or more likely, being compensated for not using – the water it owns in the Animas River, Tribal Chairman Manuel Heart said.
Heart signed the contract Dec. 4 alongside Bureau of Reclamation Camille Calimlim Touton at a ceremony during the Colorado River Water Users Association annual conference, at which water agreements or investments involving four other tribes were signed.
A spokeswoman for the Southern Ute Indian Tribe said in a written statement that SUIT officials expect to start renegotiating their own repayment contract, first signed in 2016, with Reclamation shortly and hope to secure similar terms to those reached in the UMU contract.
The Ute Mountain Ute Tribe’s interest in signing a repayment contract intensified as 2026 expiration of the rules governing Colorado River use draws near, Ortego said.
“There was real urgency to get this done,” he said. “And I think both sides really made great concessions in order to move this forward, and I'm really impressed with the negotiation attitude that we had from Reclamation.”
Lake Nighthorse, which first filled in 2011, was built, in part to satisfy claims of the Ute Mountain Ute and Southern Ute Indian Tribe to water in the Animas River first recognized in the Colorado Ute Indian Water Rights Settlement Act of 1988.
By and large, one of the most sure ways to secure access to water is to use it.
But neither tribe has been able to use the water in Lake Nighthorse because Congress did not fund the construction of a delivery system. Today, Heart said a delivery system would likely cost $500 million.
“What are we supposed to do with the water?” he said. “If we don't have any kind of delivery system, it just sits there.”
Although technically the tribe’s water is sitting in Lake Nighthorse, the tribe’s inability to deplete the reservoir means that most of its water never actually gets pumped out of the river, but flows downstream instead, where other consumers are being compensated for not using it.
Reclamation’s agreement not to levy maintenance fees if and when the tribe receives compensation for that water under conservation programs allows the tribe to benefit from its rights without paying for infrastructure it isn’t using.
The contract also clarifies that water use is not an infinite state, nor are the tribe’s obligations an all-or-nothing commitment.
The tribe is responsible to pay a portion of the maintenance fees based upon how much of its entire water rights are in use. Once the use ends – such as when a lease to another entity expires – the tribe will no longer be responsible for the maintenance fees.
Figuring out how the tribe can be compensated for water conservation is a likely next step, Ortega said. Looking a little further down the channel, tribal officials say they are exploring how to deliver the water to the reservation.
A $500 million pipeline might not be reasonable, however nature has provided: the Animas River carries the tribe’s water into the San Juan River near Farmington, New Mexico, which runs through the Ute Mountain Ute Reservation.
The only problem? Once the water crosses the state line, New Mexico can claim it.
The San Juan River crosses back into Colorado very briefly near the Four Corners on the reservation.
Heart said the tribe is looking to reach a deal so that the tribe could develop some of its water rights there, off the San Juan, with a price tag between $60 million and $70 million, and avoid losing the water to New Mexico. Given that Towaoc, population 1,200, is unlikely to ever need 16,525 acre feet of water, Ortego said the tribe is also exploring other uses.
“We’ve got to be creative in thinking about what opportunities are available,” Ortego said. “It's really a tremendous opportunity.”
rschafir@durangoherald.com
