Groundwater Rights in the West are Changing

Last winter the Supreme Court of the United States declined to hare an appeal to the Ninth Circuit Court of Appeals recognizing and protecting the Agua Caliente Tribe of Cahuilla Indians’ Reservation’s federal water right. The appeals were submitted by California Water Agencies.

For decades the Agua Caliente Tribe had for decades purchased drinking water from the local water agencies. The agencies have pumped so much water from the region's groundwater aquifers that the land is subsiding, sinking. In the first phase of their lawsuit the Agua Caliente Tribe of Cahuilla Indians’ sought to establish their priority right to groundwater under the Winter doctrine.

The Agua Caliente Tribe has fewer than 500 members, and its reservation spreads across more than 31,000 acres in a checkerboard pattern across the Coachella Valley that includes parts of Palm Springs, Cathedral City, Rancho Mirage and surrounding areas. The tribe owns two golf courses, the Spa Resort Casino in Palm Springs and the Agua Caliente Casino Resort Spa in Rancho Mirage, and has plans to build new subdivisions and another casino. Thousands of homes stand on leased tribal land.

The Agua Caliente Tribe supplies water to its businesses and residents by purchasing the water from the local water agencies, which operate wells across the Coachella Valley. The Agua Caliente Tribe’s leaders accused the local water agencies of imperiling the aquifer by allowing its levels to decline over the years as evidenced by the land subsidence. Inability to negotiate an agreement with the water agencies resulted in the three phase lawsuit to in the first phase establish the Agua Caliente Tribe’s rights to groundwater, quantify that right in phase two, and establish water quality standards in phase three.

In the first phase, the Ninth Circuit Court of Appeals found that the United States government reserved appurtenant (attached to the land) water sources – including groundwater – when it created the Agua Caliente Tribe of Cahuilla Indians’ reservation in the Coachella Valley. The court also held that the creation of the Agua Caliente Reservation carried with it an implied right to use water from the Coachella Valley aquifer and that state water rights held by the water agencies are preempted by federal reserved rights. The fact that the Agua Caliente Tribe did not historically access groundwater did not destroy its right to groundwater now. Finally, the court found that the Agua Caliente Tribe’s entitlement to state water did not affect the Tribe’s federally reserved water right.

Now, as the next phase of Agua Caliente's lawsuit unfolds in federal court, the tribe is seeking to have judges put a number on its groundwater rights, establishing how much water it can pump from the Coachella Valley aquifer. The federal reserved right is the highest priority right, it is set aside before most other users are entitled to a single drop. Unlike California’s surface water storage and delivery system, groundwater is out of sight underground and most people do not understand its limits. Groundwater is also increasingly relied upon by growing cities and farms, and it plays an important role in the future sustainability of California’s overall water supply. In an average year, roughly 35%-40% of California’s water supply comes from groundwater. All the western states face the likely prospect of demand for water outstripping the supply of legally available freshwater in by 2030.