Water Rights History

A Brief History of Water Rights

Winter's Doctrine
Wyoming v. Colorado
The Colorado River Compact
The Boulder Canyon Act

Winters Doctrine (1908) - In the era of modern water law, tribes have strengthened their water rights by drawing on a 1908 Supreme Court opinion in a case involving the use of the Milk River in north central Montana. In that case, Winters v. US, the court found that when the federal government created the Fort Belknap reservation it implicitly reserved the rights to use a sufficient amount of the river’s water to fulfill the purposes of the reservation as a homeland for the Gros Ventre and Assiniboine people. The “Winters doctrine” and the specifics derived from it in case law and in federal legislation form the basis of the water rights of the tribes in Arizona. (itcaonline.com/programs/tribal-leaders-water-policy-council/the-winters-doctrine-the-foundation-of-tribal-water-rights/)

Wyoming v. Colorado (1922) - Wyoming v. Colorado is a set of court cases where the state of Wyoming wanted to prevent the state of Colorado from diverting water from the Laramie River. These cases set the precedent in the U.S. Supreme Court to utilize the doctrine of prior appropriation, upholding Wyoming’s senior water rights. This decision added to other states’ urge to solidify their own water rights.

The Colorado River Compact (1922) - The Colorado River Compact of 1922 divided the river into two basins: The Upper Basin (Colorado, New Mexico, Utah, and Wyoming) and the Lower Basin (Arizona, California, and Nevada), establishing the allotment for each basin and provided framework of the river for years to come. The compact allotted each of the two basins 7.5 million acre-feet (MAF) of water from the Colorado River system in perpetuity. The compact created the foundation of the “Law of the River,” which regulates the use of the Colorado River. The only reference to Tribal water rights was a statement that nothing within the compact should be understood to affect the United States’ obligations to Tribal water rights. (https://www.watereducation.org/aquapedia-background/colorado-river-compact)

The Boulder Canyon Project Act (1928) - This act ratified the 1922 Colorado River Compact and authorized the construction of the Hoover Dam and related irrigation facilities in the Lower Basin. The act also allotted 7.5-million-acre feet among the states of Arizona (2.8 MAF), California (4.4 MAF), and Nevada (0.3 MAF) and authorized the Secretary of the Interior to function as the sole contracting authority for Colorado River water use in the Lower Basin. (https://www.usbr.gov/lc/region/pao/lawofrvr.html#avc)

The Mexican Water Treaty (1944)

This treaty committed 1.5 MAF of the Colorado River's annual flow to Mexico.

(https://www.usbr.gov/lc/region/pao/lawofrvr.html#avc)

Upper colorado River Basin Compact (1948)

Created the Upper Colorado River Commission and apportioned the Upper Basin’s 7.5 MAF among Colorado (51.75%), New Mexico (11.25%), Utah (23%), and Wyoming (14%); the portion of Arizona that lies within the Upper Basin was also allotted 50,000 acre-feet annually.

(https://www.usbr.gov/lc/region/pao/lawofrvr.html#avc)

Colorado River Storage Project (1956)

This act created a comprehensive Upper Basin water resource development plan and authorized the construction of Glen Canyon, Flaming Gorge, Navajo, and Curecanti dams for river regulation and power production, in addition to several projects for irrigation and other uses.

(https://www.usbr.gov/lc/region/pao/lawofrvr.html#avc)

Arizona V. California supreme court decision (1964)

Incited by a 25-year-old dispute between Arizona and California over the diversion of water in the Gila River through construction of the Central Arizona Project (CAP), the decision concluded that the doctrine of prior appropriation did not apply to apportionments in the Lower Basin. The decree mandated the preparation of annual reports to document the uses of water in the three Lower Basin States. In 1979, a supplemental decree addressed rights referred to in the Colorado River Compact and the Boulder Canyon Project Act. These rights, established under state law, would have priority over later contract entitlements. With several other subsequent decrees in 1966, 1984, and 2000, the decision’s findings would be consolidated in 2006 and reflected in the settlement of the federal reserved water rights claim for the Fort Yuma Indian Reservation.

Colorado River Basin Project Act (1968)

This act authorized the construction of the Central Arizona Project, as well as several water development projects in the Upper and Lower Basins. The act would also designate the priority of the CAP water supply as subordinate to California’s water supply in times of shortage. Long-range operating criteria for the Colorado River reservoir systems were also established by this act.

Federal Government expresses commitment to a new self-determination era for tribes (1970)

This action establishes federal policy for “a new and balanced relationship between the United States government and the first Americans, that is at the heart of our approach to Indian problems” – a tribal future determined by tribal government acts and decisions. With this action, President Nixon set the stage for the newly created EPA to begin incorporating self-determination principles into its tribal program from the Agency’s beginning.

(https://www.epa.gov/tribal/tribes-and-epa-50-years-environmental-partnership)

Criteria for coordinated long-range operation of Colorado River Reservoirs (1970)

Set conditions for water release from Lake Powell and Lake Mead. In 2005, the Secretary of the Interior made a number of limited modifications to the text of the 1970 operating criteria.

Safe Drinking water Act (1974)

This act was passed by Congress to protect public health by regulating the nation’s public drinking water supply. The law was amended in 1986 and 1996 and requires many actions to protect drinking water and its sources – rivers, lakes, reservoirs, springs, and ground water wells. The act authorizes the US EPA to set national health-based standards for drinking water to protect against both naturally-occurring and man-made contaminants that may be found in drinking water. The Safe Drinking Water Act would also allow for EPA to approve eligible tribes to implement control programs that enforce approved tribal regulations. This would be the first statute to give tribes the opportunity to pursue regulatory primacy through an approval process known as “treatment as a state” or TAS. Later amendments in 1987 would authorize EPA to approve eligible tribes to administer a wide array of programs that establish tribal standards for water quality for submission to EPA.

(https://www.epa.gov/tribal/tribes-approved-treatment-state-tas)

Navajo Nation becomes the first tribe authorized to administer public water system supervision (PWSS) Program (2000)

To date, the Navajo Nation is the only tribe with primacy to implement a PWSS program and have enforcement authority under the Safe Drinking Water Act over drinking water systems. Navajo Nation has primacy over 170 public water systems on their land.

Navajo Tribal Water Council Created (2006)

Creation of the National Tribal Water Council to facilitate information sharing, raise awareness on priority water issues, enable tribes to have greater input to protect water quality and improve drinking water in tribal communities.

(https://www.epa.gov/tribal/tribal-partnership-groups)

multi-agency tribal infrastructure taskforce created (2007)

An Infrastructure Task Force (IRF) was created to develop and coordinate federal activities in delivering water, wastewater, and solid waste management infrastructure to Tribal communities. In 2022, the MOU was renewed and expanded to include the Bureau of Reclamation and Centers for Disease Control and Prevention as new members.

The federal partners include:

• Department of Agriculture

• Environmental Protection Agency

• Department of Health and Human Services – Indian Health Service and Agency for Toxic Substances and Disease Registry, Centers for Disease Control and Prevention

• Department of Housing and Urban Development

• Department of the Interior – Bureau of Reclamation and Indian Affairs

(https://www.epa.gov/tribal/federal-infrastructure-task-force-improve-access-safe-drinking-water-and-basic-sanitation#fact-sheets)

Navajo Nation Water Rights Commission

Mailing Address

P.O. Box 4251
Window Rock, AZ
86515

Contact Us

928-871-7574

928-871-6200

nn-wrc@navajo-nsn.gov

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