|
State Pressed on [Navajo] Water Deal Tribe, weary of inaction, holds court-decision trump card Arizona Republic http://www.azcentral.com/arizonarepublic/news/articles/0827water-navajodeal0827.html Optimism permeated the ballroom at Caesars Palace, where, a few days before Christmas last year, Colorado River users from seven states allowed themselves to believe they had achieved some sort of peace with a drought plan that ended years of bickering. In the 15 minutes it took to screen a film clip depicting families on the Navajo Reservation hauling water across miles of dirt roads, the mood shifted and a nervous silence fell across the room. Estevan Lopez, director of the New Mexico Interstate Stream Commission, said he brought the film to remind his river colleagues that not all their work was done. The Navajos still faced a water crisis far worse than the cities worried about keeping up with growth, a plight that turned nearly 40 percent of the people, as many as 80,000 in all, into water haulers. The Navajo Nation's need for water has cast a shadow over the Colorado River for decades. It has been that one overwhelming task everyone worked around, pushing it off for later. Now, a settlement between the Navajos and New Mexico for water from the San Juan River, a major tributary of the Colorado, has forced Arizona and the federal government back to the table to sort out the rest of the tribe's claims, which include water and money to build delivery systems. The task is still overwhelming, tangled in a morass of laws, compacts, political interests and a water supply already stretched too thin. But failure would thrust the issue into court and threaten water supplies for millions of people. "We want to settle the Navajo and Hopi claims to the rivers in Arizona," said Herb Guenther, director of the Arizona Department of Water Resources. "It's one of our high priorities to get this resolved, for the benefit of not only the tribe but also for water users in Arizona, to give them more certainty for the future." Pacts with Arizona Arizona is no stranger to tribal water deals. In 2004, federal, state and local officials settled claims with the Gila River Indian Community with what was then the largest such agreement in U.S. history. The settlement gave the community control of nearly half of the Colorado River water that flows down the Central Arizona Project Canal and set aside more than $400 million to pay for pipelines and canals. That deal, 30 years and scores of government agencies in the making, was easy compared with a Navajo settlement. The Navajo Reservation sprawls across Arizona, New Mexico and Utah, covering an area 45 times larger than the Gila River Reservation. It is bounded by three major rivers: the San Juan, the Little Colorado and the Colorado. The Navajos haven't formally asked for a specific amount of water from the Colorado or the Little Colorado rivers, but tribal attorneys insist the number won't come close to what the Gila River Community received. In documents filed earlier this year with the Bureau of Reclamation, Deputy Attorney General Stanley Pollack said the tribe has estimated it would need at least 76,732 acre-feet a year from the Colorado River and as much as 63,000 acre-feet a year from the Little Colorado. An acre-foot is 325,851 gallons, enough to meet the annual needs of one or two urban households. The Gila River settlement set aside 6,411 acre-feet for a Navajo settlement, water that would be delivered from the San Juan to Window Rock, the tribal capital. An additional 67,300 acre-feet was set aside for future tribal claims, but the state also will need water for the Hopi Tribe, which faces a crisis similar to the Navajos, as well as potential claims by the White Mountain Apaches, the Tohono O'odham Nation, the Yavapai Apaches, Tonto Apaches, the Pascua Yaquis and others. Arizona negotiated with the Navajos in fits and starts until 2003, when the tribe sued the federal government, accusing it of ignoring the water needs of the reservation. Arizona officials say they want the tribe to drop the suit before the state agrees to a settlement. "We've always had the idea they'd drop the lawsuit if they had a settlement," said Greg Houtz, counsel for the state Water Resources Department. He said the state fears the suit could derail the long-sought shortage agreement among the river states. Disputed deals What further clouded talks was the agreement reached in 2005 between the Navajos and New Mexico. The deal settled the tribe's claims to the San Juan River and proposed a system of pipelines to help deliver water to reservation communities in eastern New Mexico. "It was a huge accomplishment for the Navajo," said Lena Fowler, vice chairman of the tribe's Water Rights Commission. "We're not meeting our water needs right now. People wonder why we don't have economic development on Navajo. It's because we don't have water infrastructure. It's a constant cycle that we have to live with here." The tribe won little additional water but secured greater certainty for existing water rights and the promise of a pipeline. The deal also benefits the off-reservation city of Gallup, where the water table is dropping at a rate of 200 feet every 10 years. Without the pipeline, Gallup would face chronic shortages within 15 years. "We wanted to try to obtain greater value for the water we had," said Pollack, the tribe's attorney. "We came up with a deal that works within the limits of the law and the water and made it work for the Navajo." But the deal hit a wall in Congress, which must authorize terms of the settlement and, more importantly, write a check for nearly $1 billion to pay for the needed infrastructure. At hearings in both the House and the Senate this summer, the Bush administration said the bill was too high and challenged other parts of the agreement. Lined up with the feds was Arizona, some of its largest water providers, including the CAP and Salt River Project, and some of its smaller communities on the Little Colorado River. The state argued that the bill was premature, that the tribe should negotiate a comprehensive settlement that included Arizona. Arizona believes the legislation would violate the Colorado River compact and jeopardize CAP water supplies during a serious drought. "We're not going to allow precedents to be set that would hurt Arizona in the future," Guenther said. "We've offered to help them make changes in the bill, but so far, we haven't had any takers." New Mexico officials insist they are within their rights to sign an agreement on the San Juan. They say attempts by other states to undermine the deal would be seen as an attempt to prevent New Mexico from legally using its Colorado River allocation. Seeking allies The Navajo Nation hopes it can find friends among other northern Arizona communities that face similarly tight water supplies. The tribe has participated for several years on the Coconino Plateau Water Advisory Council, which is looking for ways to meet demands in Flagstaff, Winslow, Williams and other towns. A study by the Bureau of Reclamation concluded that the region would face water shortages by 2050. The study examined several solutions, including a pipeline that would import water from Lake Powell or the Colorado River. Navajo leaders strongly support such a project, seeing it as a way to help serve the parched Western reservation. "There are limited resources. The demand is already exceeded in some areas," said Ray Benally, the tribe's water resources director. "There's no way around working together." Flagstaff relies on groundwater for 80 percent of its supplies and is exhausting its ability to drill wells. The city will need to import water by 2030 to meet demand, said Ron Doba, utilities director. The city bought a ranch about 35 miles to the east with the intent of developing the groundwater, but that option will require a pipeline and pumps. Building the pipeline could cost $200 million; operating it would cost millions more. The bureau study estimated that a pipeline from Lake Powell would cost more than $800 million, with annual operating costs of about $47 million. A tribal settlement could help secure the federal money needed to cover the costs. To join in a Lake Powell pipeline, Flagstaff would need to acquire Colorado River water rights. Doba said the idea is worth pursuing, and he thinks it's doable. "I think it does have a chance of happening," he said, "as long as we're able to continue to build on our trust of one another." Losing patience Navajo leaders say they are willing to work with the states and the federal government, but it's clear their patience is wearing thin. They are angry that the Interior Department and the seven Colorado River states continue to strike new deals among themselves without including the tribe. Navajo Nation President Joe Shirley warned lawmakers in Washington earlier this year that the tribe will take its claims to court if settlement attempts don't progress. "If the settlement were to fail, and the Navajo Nation were forced to pursue the litigation of its claims, the United States would still be exposed to horrific liabilities even if the Navajo Nation were to obtain only modest water rights," Shirley said. That is what has motivated states to settle tribal claims over the years. Based on a 1908 Supreme Court decision, tribes hold water rights that date to the creation of their reservations. That would give the Navajos high priority for water in Arizona or New Mexico and could allow the tribe, with a court victory, to disrupt the entire Colorado River. Guenther said he doesn't want to see Arizona play the bad cop, but "we've got more than one river system involved in this settlement." "We have felt for some time that the amount of water they wanted from the ( Colorado) exceeded realistic possibilities," Guenther said. "We're waiting for them to come in with a reasonable claim." Fowler, the water rights commissioner, said the Navajos simply want what they're entitled to. She dismissed talk that the tribe wants to lease water to communities off the reservation. "Colorado River states gave each other water years ago, never really thinking about Indians," she said. "We already had our rights here. We love where we live. We love our land. This our homeland, and we're not going to move from here. All we want is clean, reliable water." |