[Senate Hearing 108-216]
[From the U.S. Government Publishing Office]
S. Hrg. 108-216
ARIZONA WATER SETTLEMENTS ACT
=======================================================================
JOINT HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
AND THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
on
S. 437
TO PROVIDE FOR ADJUSTMENTS TO THE CENTRAL ARIZONA PROJECT IN ARIZONA,
TO AUTHORIZE THE GILA RIVER INDIAN COMMUNITY WATER RIGHTS SETTLEMENT,
TO AUTHORIZE AND AMEND THE SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT ACT
OF 1982, AND FOR OTHER PURPOSES
__________
SEPTEMBER 30, 2003
Printed for the use of the
Committee on Energy and Natural Resources
and the Committee on Indian Affairs
U.S. GOVERNMENT PRINTING OFFICE
90-840 WASHINGTON : 2003
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800, DC area (202) 512-1800 Fax: (202) 512-2250 Mail: stop SSOP, Washington, DC 20402-0001
COMMITTEE ON ENERGY AND NATURAL RESOURCES
PETE V. DOMENICI, New Mexico, Chairman
DON NICKLES, Oklahoma JEFF BINGAMAN, New Mexico
LARRY E. CRAIG, Idaho DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming BOB GRAHAM, Florida
LAMAR ALEXANDER, Tennessee RON WYDEN, Oregon
LISA MURKOWSKI, Alaska TIM JOHNSON, South Dakota
JAMES M. TALENT, Missouri MARY L. LANDRIEU, Louisiana
CONRAD BURNS, Montana EVAN BAYH, Indiana
GORDON SMITH, Oregon DIANNE FEINSTEIN, California
JIM BUNNING, Kentucky CHARLES E. SCHUMER, New York
JON KYL, Arizona MARIA CANTWELL, Washington
Alex Flint, Staff Director
Judith K. Pensabene, Chief Counsel
Robert M. Simon, Democratic Staff Director
Sam E. Fowler, Democratic Chief Counsel
------
Subcommittee on Water and Power
LISA MURKOWSKI, Alaska, Chairman
BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman
GORDON SMITH, Oregon BYRON L. DORGAN, North Dakota
JON KYL, Arizona BOB GRAHAM, Florida
LARRY E. CRAIG, Idaho RON WYDEN, Oregon
JAMES M. TALENT, Missouri TIM JOHNSON, South Dakota
JIM BUNNING, Kentucky DIANNE FEINSTEIN, California
CRAIG THOMAS, Wyoming CHARLES E. SCHUMER, New York
MARIA CANTWELL, Washington
Pete V. Domenici and Jeff Bingaman are Ex Officio Members of the
Subcommittee
Shelly Randel, Counsel
Mike Connor, Democratic Counsel
------
COMMITTEE ON INDIAN AFFAIRS
BEN NIGHTHORSE CAMPBELL, Colorado, Chairman
DANIEL K. INOUYE, Hawaii, Vice Chairman
JOHN McCAIN, Arizona, KENT CONRAD, North Dakota
PETE V. DOMENICI, New Mexico HARRY REID, Nevada
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
GORDON SMITH, Oregon MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska
Paul Moorehead, Majority Staff Director/Chief Counsel
Patricia M. Zell, Minority Staff Director/Chief Counsel
C O N T E N T S
----------
STATEMENTS
Page
Akaka, Hon. Daniel K., U.S. Senator from Hawaii.................. 7
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................ 6
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado........ 2
D'Antonio, John, New Mexico State Engineer, Santa Fe, NM......... 60
Domenici, Hon. Pete V., U.S. Senator from New Mexico............. 67
Guenther, Herbert R., Director, Arizona Department of Water
Resources, Phoenix, AZ......................................... 52
Inouye, Hon. Daniel K., U.S. Senator from Hawaii................. 3
Juan-Saunders, Vivian, Chairwoman, Tohono O'odham Nation, Sells,
AZ............................................................. 32
Kitcheyan, Kathleen W., Chairwoman, San Carlos Apache Tribe, San
Carlos, AZ..................................................... 41
Kyl, Hon. Jon, U.S. Senator from Arizona......................... 3
McCain, Hon. John, U.S. Senator from Arizona..................... 2
Murkowski, Hon. Lisa, U.S. Senator from Alaska................... 1
Napolitano, Hon. Janet, Governor, State of Arizona............... 53
Narcia, Richard P., Governor, Gila River Indian Community,
Sacaton, AZ.................................................... 23
Raley, Bennett W., Assistant Secretary, Water and Science,
Department of the Interior, accompanied by Aurene Martin,
Acting Assistant Secretary for Indian Affairs.................. 8
Shirley, Joe, Jr., President, Navajo Nation, Window Rock, AZ,
accompanied by Stanley Pollack, Attorney....................... 29
APPENDIXES
Appendix I
Responses to additional questions................................ 69
Appendix II
Additional material submitted for the record..................... 81
ARIZONA WATER SETTLEMENTS ACT
----------
TUESDAY, SEPTEMBER 30, 2003
U.S. Senate,
Subcommittee on Water and Power of the
Committee on Energy and Natural Resources,
and the Committee on Indian Affairs,
Washington, D.C.
The subcommittee and committee met, pursuant to notice, at
10 a.m. in room SD-366, Dirksen Senate Office Building, Hon.
Lisa Murkowski presiding.
OPENING STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Good morning. I call to order the
Subcommittee on Water and Power. Good morning to all of you. I
would like to take this opportunity to welcome all the parties
to this morning's joint hearing before the Water and Power
Subcommittee and the Indian Affairs Committee. I would like to
express my appreciation to you, Senator Campbell, for agreeing
to work together on this legislation and to extend a special
welcome to Senator Inouye.
The legislation before us today is quite monumental. What
began roughly over a decade ago is of significant importance to
two States, numerous tribes, several communities, and many,
many individuals. It is my understanding that upon enactment
and implementation, settlement of the Gila River Indian
Community's claims would be one of the largest Indian water
rights settlements ever undertaken. So I commend everyone for
all of the efforts that have gone into the settlement thus far.
Now, while this hearing represents a significant step
forward, I also know that not all concerns have been addressed
and some degree of compromise on a variety of issues still lies
ahead. Therefore, I look forward to hearing from all of our
witnesses today.
At this time I would like to invite other Senators to make
opening statements. I do understand that there are several of
you that have conflicting commitments. Appropriations is
meeting at this same time. Senator Kyl, as the sponsor of S.
437, we would anticipate your statement, but as a courtesy to
both Senator Campbell and Senator Inouye, who do have to go to
another committee, I would like to invite you to make your
statements at this time, and then we will recognize those other
Senators as they have arrived.
Senator Campbell.
[The prepared statements of Senators Murkowski and McCain
follow:]
Prepared Statement of Hon. Lisa Murkowski, U.S. Senator From Alaska
I would like to take this opportunity to welcome all the parties to
this mornings joint hearing before the Water and Power Subcommittee and
the Indian Affairs Committee. I would like to express my appreciation
to Senator Campbell for agreeing to work together on this legislation
and to extend a special welcome to Senator Inouye.
The legislation before us today is quite monumental. What began
roughly over a decade ago is of significant importance to two states,
numerous Tribes, several communities, and many, many individuals. It is
my understanding that upon enactment and implementation, settlement of
the Gila River Indian Community's claims would be one of the largest
Indian water rights settlement ever undertaken. I commend everyone for
all of the efforts that have gone into this settlement thus far.
While this hearing represents a significant step forward, I also
know that not all concerns have been addressed and some degree of
compromise on a variety of issues still lies ahead. Therefore, I look
forward to hearing from all of our witnesses here today.
______
Prepared Statement of Hon. John McCain, U.S. Senator From Arizona
I want to thank the Chairmen of the Indian Affairs and Energy and
Natural Resources Committees for holding this hearing on the Arizona
Water Settlements Act of 2003, a bill of great significance to the
future of Arizona and its citizens. I also want to commend my
colleague, Senator Kyl, for all the effort that he has expended to
bring this complex legislation to this point in the process. The
legislation would ratify negotiated settlements for Central Arizona
Project (CAP) water allocations to municipalities, agricultural
districts and Indian tribes, state CAP repayment obligations, and final
adjudication of long-standing Indian water rights claims.
These settlements reflect more than five years of intensive
negotiations by state, federal, tribal, municipal, and private parties.
I want to recognize the extraordinary commitment of all the parties
represented in this agreement. From my experience in legislating past
agreements, I recognize the enormous challenge of these negotiations,
and I appreciate their personal dedication to this settlement process.
This legislation is vitally important to Arizona's future because
these settlements will bring greater certainty and stability to
Arizona's water supply by completing the allocation of CAP water
supplies. Pending water rights claims by various Indian tribes and non-
Indian users will be permanently settled as well as the repayment
obligations of the state of Arizona for construction of the CAP.
I join Senator Kyl in expressing my support for the agreements
embodied in this bill and encouraging thoughtful conclusion of this
settlement process. Significant progress has been made in resolving key
issues since we last sponsored a bill to facilitate this agreement in
the 107th Congress. Some of these key issues pertain to the final
apportionment of CAP water supplies, cost-sharing of CAP construction
and water delivery systems, amendment of the 1982 settlement agreement
with the Tohono O'odham Nation, mitigation measures necessitated by
sustained drought conditions, and equitable apportionment of drought
shortages.
While this bill reflects agreements reached on a host of issues, it
is important to emphasize that the legislation may be modified as the
negotiations continue. There are parties that are engaged in water
rights litigation that may find that becoming part of this legislated
settlement will provide a more satisfactory and expeditious resolution
of claims. I encourage all the parties involved to continue to work
diligently toward the successful conclusion of this process. The future
passage of the Arizona Water Settlements Act will be an historic
accomplishment that will benefit all citizens of Arizona, the tribal
communities, and the United States.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL,
U.S. SENATOR FROM COLORADO
Senator Campbell. Thank you, Madam Chairman, and thank you
very much for doing this hearing. As you know, we are marking
up the President's emergency supplemental for Iraq and
Afghanistan in Appropriations today, so I will only stay for a
few minutes because I need to be at that committee too, as
Senator Inouye does.
But I want to commend Senator Kyl, the Gila River Indian
Community, and the States of Arizona and New Mexico for their
work on this very important bill. As a sponsor of a very, very
difficult Indian water rights settlement act in Colorado that
took over 15 years, I know firsthand how incredibly difficult
these issues can be. Even though Indian people certainly have a
right, an early priority water right, to water running within
the boundaries of the State, changes in demographics and
populations and many other things have made it very, very
complicated to actually give them the right that they certainly
deserve.
S. 437 is no exception. It represents the product of many
years of hard work by all of the parties involved. By settling
the Central Arizona Project issues, implementing the Gila River
water rights settlement, and addressing Southern Arizona Water
Rights Settlement, S. 437 is a large and very complex bill. The
committee will hear from the witnesses today. I will read with
great interest all the testimony that is turned in, but I am
hopeful that there are areas we can improve and the two
committees will be able to work together, as we always do, to
make sure that we do our best to expedite this bill. I think it
is extremely important.
Thank you, Madam Chairman.
Senator Murkowski. Thank you.
Senator Inouye.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR
FROM HAWAII
Senator Inouye. Thank you very much, Madam Chairman.
In the interest of time to receive the testimony of
witnesses this morning, I would just like to welcome Governor
Narcia of the Gila River Indian community, Chairperson Saunders
of the Tohono O'odham Nation, President Shirley of the Navajo
Nation, and Chairwoman Kitcheyan of the San Carlos Apache
Tribe, and to assure my colleague from Arizona, Senator Kyl,
that I look forward to working with him to assure passage of
this very important measure.
Thank you very much, Madam Chairman.
Senator Murkowski. Thank you.
Senator Kyl.
STATEMENT OF HON. JON KYL, U.S. SENATOR FROM ARIZONA
Senator Kyl. Thank you, Madam Chairman and Chairman
Campbell, and I know that the members of the Appropriations
Committee will have to attend that markup, that very important
markup, and I therefore fully appreciate why you cannot be here
the entire time. But I can certainly assure many of my friends
from Arizona who are here that all of you have taken this very
seriously and have studied up on the issue and will continue to
study more even though you are not here for much of the hearing
today, and I appreciate that very, very much.
I also want to thank Senator Campbell, Senator Murkowski,
and Senator Domenici for being willing to hold this hearing at
this time. We have waited a long time, the water users in
Arizona, for this day, and the bill is the product of 14 years
of negotiation and litigation and then more negotiation.
Virtually every major water user and provider in central
Arizona has devoted itself to the passage of this bill.
In fact, S. 437 would codify the largest water claim
settlement in the history of our State. The three titles in the
bill represent the tremendous efforts of literally hundreds of
people in Arizona and here in Washington, as I said, over this
period of 14 years.
Looking ahead, the bill could ultimately be nearly as
important to Arizona's future as was the authorization of the
Central Arizona Project itself. Since Arizona began receiving
CAP water from the Colorado River, litigation has divided water
users over how the CAP water should be allocated and exactly
how much Arizona was required to repay the Federal Government.
Those of you who assisted Arizona on the CAP will recall that
Arizona under the CAP legislation always committed to repay a
portion of the project back to the Federal Government,
something on the order of from a third to about 40 percent, and
litigation arose as to exactly how much that repayment was and
how it was to be accomplished.
Well, this bill, among other things, codifies the
settlement reached between the U.S. Government and the Central
Arizona Water Conservation District, the entity that runs the
CAP, over the State's repayment obligation for costs incurred
by the United States in constructing the Central Arizona
Project.
By the way, I might add for my Democratic colleagues, some
of the genius in figuring out how to do this, supporting a lot
of different Federal interests, came originally from Bruce
Babbitt, who was then Secretary of the Interior, knew the
issues very, very thoroughly as a result of his background in
Arizona as well. So I attribute a lot of the good ideas in the
settlement to Secretary Babbitt.
The settlement will also resolve once and for all the
allocation of all remaining CAP water. The final allocation
will provide the stability necessary for State water
authorities to plan for Arizona's future water needs. In
addition, approximately 200,000 acre-feet of CAP water will be
made available to settle various Indian water claims in the
State. The bill would also authorize the use of the Lower
Colorado River Basin Development Fund, which is funded solely
from revenues paid by Arizona entities and people, to construct
irrigation works necessary for the tribes with Congressionally
approved water settlements to use their CAP water, really
converting their paper water rights to wet water for the first
time.
Madam Chair, title 2 of the bill settles water rights
claims of the Gila River Indian Community. It allocates nearly
100,000 acre-feet of CAP water to the community and provides
funds to stabilize the costs of delivering CAP water and to
construct the facilities necessary to allow the community to
fully utilize the water allocated to it in this settlement.
Title 3 provides for long-needed amendments to the 1982
Southern Arizona Water Settlement Act for the Tohono O'odham
Nation, which has never been fully implemented.
This bill will allow Arizona cities to plan for the future
knowing how much water they can count on. The Indian tribes, as
I said, will finally get wet water as opposed just to the paper
claims that they now have, and they will have projects to use
their water. In addition, mining companies, farmers, and
irrigation districts can continue to receive water without fear
that they will be stopped by this litigation.
While some minor issues remain, we still have every
confidence that those issues will be resolved before we
actually mark up the bill. In particular, the States of Arizona
and New Mexico have been negotiating the best way to address
New Mexico's right under the 1968 Boulder Canyon Project Act,
which authorized the CAP, to exchange 18,000 acre-feet of CAP
water on the Gila River. The States are meeting regularly and
report that they are making progress.
In addition, we hope that negotiations with the San Carlos
Apache Tribe, the only party not yet included in the
settlement, will move forward so that all claims can be
resolved by this bill, and there is a title specifically
reserved for that settlement should we be able to accomplish
that result.
In summary, this bill is vital to the citizens of Arizona
and will provide the certainty needed to move forward with
water use decisions. Furthermore, the United States can avoid
litigating water rights and damage claims and satisfy its trust
responsibility to the tribes. The parties have worked many
years to reach consensus rather than litigate and I believe
this bill represents the best opportunity to achieve a fair
result for all of the people of Arizona.
I want to thank everyone from Arizona who has traveled here
today to attend this hearing and again thank all of the members
of the committee who have been here at least up to now. Thank
you, Madam Chairman.
[The prepared statement of Senator Kyl follows:]
Prepared Statement of Hon. Jon Kyl, U.S. Senator From Arizona
Madam Chairman, Chairman Campbell, I would first like to thank you
and Chairman Domenici for holding this hearing. The water users and
providers of Arizona have waited a long time for this day. The bill
before our committees, the Arizona Water Settlements Act (S. 437), is
the product of fourteen years of negotiation, litigation, and more
negotiation. Virtually every major water user and provider in central
Arizona has devoted itself to the passage of this bill. In fact, S. 437
would codify the largest water claims settlement in the history of
Arizona. The three titles in this bill represent the tremendous efforts
of literally hundreds of people in Arizona and here in Washington over
a period of fourteen years. Looking ahead, this bill could ultimately
be nearly as important to Arizona's future as was the authorization of
the Central Arizona Project (CAP) itself.
Since Arizona began receiving CAP water from the Colorado River,
litigation has divided water users over how the CAP water should be
allocated and exactly how much Arizona was required to repay the
federal government. This bill will, among other things, codify the
settlement reached between the United States and the Central Arizona
Water Conservation District over the state's repayment obligation for
costs incurred by the United States in constructing the Central Arizona
Project. It will also resolve, once and for all, the allocation of all
remaining CAP water. This final allocation will provide the stability
necessary for state water authorities to plan for Arizona's future
water needs. In addition, approximately 200,000 acre-feet of CAP water
will be made available to settle various Indian water claims in the
state. The bill would also authorize the use of the Lower Colorado
River Basin Development Fund, which is funded solely from revenues paid
by Arizona entities, to construct irrigation works necessary for tribes
with congressionally approved water settlements to use CAP water.
Madam Chairman, Mr. Chairman, title II of this bill settles the
water rights claims of the Gila River Indian Community. It allocates
nearly 100,000 acre-feet of CAP water to the Community, and provides
funds to subsidize the costs of delivering CAP water and to construct
the facilities necessary to allow the Community to fully utilize the
water allocated to it in this settlement. Title III provides for long-
needed amendments to the 1982 Southern Arizona Water Settlement Act for
the Tohono O'odham Nation, which has never been fully implemented. This
bill will allow Arizona cities to plan for the future, knowing how much
water they can count on. The Indian tribes will finally get ``wet''
water (as opposed to the paper claims to water they have now) and
projects to use the water. In addition, mining companies, farmers, and
irrigation delivery districts can continue to receive water without the
fear that they will be stopped by Indian litigation.
While some minor issues remain, we have every confidence that these
issues will be resolved before we mark-up the bill. In particular, the
states of Arizona and New Mexico have been negotiating the best way to
address New Mexico's right under the 1968 Boulder Canyon Project Act
(authorizing the CAP) to exchange 18,000 afy of CAP water on the Gila
river. The states are meeting regularly and report that they are making
progress. In addition, we hope that negotiations with the San Carlos
Apache Tribe, the only party not yet included in the settlement, will
move forward so that all claims can be resolved by this bill.
In summary, this bill is vital to the citizens of Arizona and will
provide the certainty needed to move forward with water use decisions.
Furthermore, the United States can avoid litigating water rights and
damage claims and satisfy its trust responsibilities to the Tribes. The
parties have worked many years to reach consensus rather than litigate,
and I believe this bill represents the best opportunity to achieve a
fair result for all the people of Arizona.
Senator Murkowski. Thank you, Senator Kyl.
Senator Bingaman.
STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR
FROM NEW MEXICO
Senator Bingaman. Thank you very much for having this
hearing. Let me welcome all the witnesses and thank Senator
Murkowski and Senator Kyl, Senator Murkowski for having the
hearing, Senator Kyl for all the work that has gone into this
complex piece of legislation.
This bill as I understand it would ratify a series of water
settlements that are very important to the State of Arizona. It
involves resolution of issues concerning the Central Arizona
Project, as Senator Kyl indicated, a reclamation project that
was authorized in 1968 to furnish water both to Arizona and to
New Mexico.
The Central Arizona Project settlement also attempts to
address the U.S. trust responsibility to Arizona Indian tribes
by facilitating several important Indian water rights
settlements. I know this is a difficult negotiation to get to
this point and I congratulate all the parties for the work that
has gone into it. Nevertheless, the legislation involving the
allocation of water from the Colorado River does affect a
number of different interests. This bill, S. 437, addresses a
large number of CAP issues, but there are some New Mexico-
related issues that I believe should also be addressed as part
of a settlement.
These issues arise as the result of the provisions in the
1968 Colorado River Basin Project Act that were intended to
ensure that water users in New Mexico could benefit from the
construction of the Central Arizona Project. Given that S. 437
provides a certain and final resolution to so many CAP issues,
it seems to me appropriate to provide that same level of
certainty for New Mexico's portion of the project that was
authorized 35 years ago.
Today, we have our State Engineer from New Mexico, John
D'Antonio, testifying. I look forward to hearing his testimony
on New Mexico issues related to this bill. It is my
understanding that discussions are under way, as Senator Kyl
indicated, between New Mexico and Arizona parties to resolve
some of the outstanding issues, and I appreciate the
willingness of the Arizona parties to work with New Mexico
representatives to resolve these issues.
Speaking as a representative from New Mexico, as a Senator
from New Mexico, let me just say that it is not New Mexico's
intention to delay the bill, but instead just to assure that
all appropriate issues are being addressed. S. 437 is a very
important piece of legislation and I look forward to working
with you, Senator Kyl, and with Senator Murkowski and all the
rest of my colleagues here, Senator Campbell, to make sure that
the issues are resolved and that we can move ahead with
legislation.
Thank you.
Senator Murkowski. Thank you.
Senator Akaka.
STATEMENT OF HON. DANIEL K. AKAKA, U.S. SENATOR
FROM HAWAII
Senator Akaka. Thank you very much, Madam Chairman and
Chairman Campbell. Thank you for holding this hearing.
Water is one of the most important natural resources in our
country and especially for Indian country. I want to commend
Senator Kyl, Senator McCain, and Senator Johnson for their
efforts to bring forth this legislation to codify the largest
water claims settlement in Arizona, in Arizona's history, and
resolve some, as Senator Kyl mentioned, 14 years of
negotiations.
This is all about reserved water, and what has been
happening in our country is that Indian country has lost some
of its rights to reserved water, and this will certainly help
the cause. We are looking forward to this being a model for
other settlements as well. Also I am looking forward to having
this bill to be a model not only for the Gila River Indian
Community, but for other tribes in the country as well. And I
look forward to working with Senator Kyl on this bill.
Thank you.
[The prepared statement of Senator Akaka follows:]
Prepared Statement of Hon. Daniel K. Akaka, U.S. Senator From Hawaii
I thank Chairman Campbell and Chairman Murkowski for holding this
joint hearing today. Water is one of our most important natural
resources, and for Indian Country, it is the bounty of their homelands.
In the past, Native peoples would relocate to other parts of the land
if their crops, fish and wildlife were no longer plentiful. Now, they
must remain on their designated homelands. They must wisely utilize the
resources available to them. However, increased demand over this
limited resource by communities outside of Indian Country has
diminished the right of tribes to ``reserved water.'' These communities
are expanding and drawing from this valuable resource. While tribes
have sought litigation to enforce their water rights, in many cases,
the economic and social costs of litigation have forced them to seek
compromises. These compromises have resulted in what is before us
today, S. 437, the Arizona Water Settlements Act.
I look forward to hearing the testimony from our witnesses to
discuss the intent of this legislation and its ramifications on Indian
Country. While I commend Senators Kyl, McCain, and Johnson for their
efforts to bring forth this legislation to codify the largest water
claims settlement in Arizona history and resolve some 13 years of
negotiations, I wish to ensure that by codifying this legislation, we
are not hurting other tribal governments that are also seeking
settlements for their water rights. It has been said that this
legislation may be used as a ``model'' for other settlements.
Therefore, it is imperative that Congress ensures that this legislation
will help not only the Gila River Indian Community, but other tribes in
Indian Country. Again, I wish to thank the Chairmen for holding this
important hearing.
Senator Murkowski. Thank you.
Senator Domenici is also participating in the
Appropriations markup of the supplemental and it is unlikely
that he will be able to attend this morning. He has submitted a
statement and asked that I read it so that all of you can hear
his comments this morning, and I also have some questions that
I will be asking on his behalf. So again, this is a statement
from Senator Domenici:
The Arizona Water Settlements Act is of great importance to the
State of Arizona. Any time parties successfully negotiate a water
settlement, it is a substantial achievement. I commend Senator Kyl for
his hard work, as well as each of the parties for the compromises made
to reach this agreement.
This bill is also extremely important to the State of New Mexico.
One of the elements originally part of the Central Arizona Project was
a New Mexico diversion and storage unit. This unit would have allowed
New Mexico to contract and exchange up to 18,000 acre-feet of CAP water
for Gila River water to be used in New Mexico. While Arizona has
witnessed completion of its portion of the CAP, New Mexico is still
waiting for construction to begin on its unit.
Additionally, because the New Mexico project was authorized as a
unit of the CAP, it should be financed in part out of CAP funds under
this settlement. Under the 1968 act and current CAP contracts, CAP
users would be required to proportionally fund 98.7 percent of the New
Mexico unit. In 1987 the Bureau of Reclamation estimated the capital
cost of the New Mexico unit at $142 million.
In its current form, S. 437 would utilize the Lower Basin
Development Fund to subsidize $1.6 to $2.2 billion in Arizona projects.
Because Congress intended New Mexico to be a beneficiary of the CAP,
sufficient funds should be dedicated from the Lower Basin Development
Fund to partially support the New Mexico unit as well.
I assure you, it is not my objective to prevent this settlement
from moving forward. But it is my intent to see that the commitments
made to New Mexico by Congress in 1968 are fairly considered. I believe
that S. 437 is designed to be a comprehensive settlement of Central
Arizona Project water issues, including allocations, payments, and
funding. Therefore, I feel any comprehensive settlement should also
include to the greatest extent practicable a resolution of outstanding
New Mexico issues as well. I simply cannot support a settlement until
the interests of New Mexico are protected.
I understand that parties in both States have met numerous times
and continue trying to reach an agreement that will accommodate both
States. I understand that a list of issues has been identified and,
while consensus has been reached on a couple of issues, there are still
several outstanding items in need of resolution, including mechanisms
for New Mexico accessing CAP water.
I stand ready to do what I can to help facilitate a consensus with
regard to the outstanding issues in this settlement so that New
Mexico's interests are protected and advanced. I will gladly hold
additional hearings, both here in Washington or out in the State, if it
becomes necessary and will aid the parties in reaching agreement.
Once again, I commend all the parties involved for their dedication
and commitment to this very important legislation. I look forward to
working with you all to address the concerns of the State of New Mexico
and I look forward to moving this bill expeditiously once those
concerns have been adequately addressed.
Again, that was the statement of Senator Domenici.
So, with that, I would like to introduce our first panel
this morning, representing the administration. We have: Bennett
Raley, the Assistant Secretary of Water and Science; and Aurene
Martin, Acting Assistant Secretary of Indian Affairs. Good
morning and welcome to the committee.
Mr. Raley.
STATEMENT OF BENNETT W. RALEY, ASSISTANT SECRETARY, WATER AND
SCIENCE, DEPARTMENT OF THE INTERIOR,
ACCOMPANIED BY AURENE MARTIN, ACTING ASSISTANT SECRETARY FOR
INDIAN AFFAIRS
Mr. Raley. Good morning. Madam Chair, thank you. Senators,
thank you. It is a pleasure to be here, particularly so when we
are addressing an issue, a suite of issues, the resolution of
which is of vital importance to the Department of the Interior.
The Department takes very, very seriously its trust
responsibilities. It takes very, very seriously its
responsibility to forward certainty for water users and the
people of Arizona and New Mexico.
This effort, which has been noted by Senator Kyl and others
stretches back over 14 years, it is one of the most complex
Indian water rights settlements that the Department has been
engaged in in decades. The resolution of these issues is of
critical importance. It is our judgment that all of the
entities are within striking distance of success. As the
members of this committee know, sometimes when parties do not
take that extra step to get to success the window of
opportunity does not open for a long time.
We believe that the window of opportunity is open today,
and I pledge to you on behalf of the Secretary and the
Department of the Interior our utmost efforts to bring this
effort to fruition and to provide the resolution of these
issues.
As the Senators have noted, S. 437 has three substantial
components. Title 1 is the negotiated settlement in the Central
Arizona Water Conservancy District litigation with the United
States. Title 2 approves the Gila River Indian Community water
rights settlement, and title 3 makes necessary amendments to
the 1982 Southern Arizona Water Rights Settlement Act. Each one
of those components is critical and we believe that they are
all worthy of proceeding.
A number of issues have been raised in the opening
statements by Senators, some of which we have addressed in the
written testimony that I have submitted on behalf of the
Department. I would like to draw attention to three issues and
then allow Assistant Secretary Martin to make any comments if
she wishes, but to preserve as much time for the Senators to
ask questions as possible.
The three issues that I would point to would be: First, we
all understand that S. 437 has a complex and innovative
financing mechanism that operates outside of the normal
appropriations process. The administration is currently
reviewing the funding provision to determine whether it is the
most appropriate way to proceed. We are not aware at the
Department of alternative methods of proceeding, but we are
going to work hard to achieve success, and we will be spending
as much time with the participants in this effort as will be
productive to find a way to get to success, because a long-term
funding mechanism is required by the stipulation. It is
essential for this effort to be successful.
The second issue that I would draw attention to is that the
Department believes that additional efforts to address issues
associated with the San Carlos Apache Tribe will be productive
and will allow this bill to proceed.
Third, as has been noted, the Department is very anxious to
have this effort supported by both Arizona and New Mexico so
that it can be supported by the Senate and the administration.
We again pledge to the representatives of the States and to
each of you that we will do everything we can as an
administration to help facilitate an agreement between two
States that are very important to the Department.
In closing, Madam Chair, I would like to return to my
earlier comment. The window is open. Let us not risk, over what
in retrospect may be minor details, the chance for success, the
chance for bringing closure to what otherwise will be very,
very divisive issues. It is not worth the risk.
Thank you, Madam Chair, and I would like to allow Assistant
Secretary Martin to make any comments if she wishes to add
anything.
[The prepared statement of Mr. Raley follows:]
Prepared Statement of Bennett W. Raley, Assistant Secretary,
Water and Science, Department of the Interior
Good morning Mr. Chairman and members of the Committee. I am
Bennett W. Raley, Assistant Secretary for Water and Science at the
Department of the Interior. I am accompanied by Aurene Martin, Acting
Assistant Secretary for Indian Affairs. I appreciate the opportunity to
appear before this Committee to discuss S. 437, a bill to authorize the
Arizona Water Rights Settlement Act of 2003.
S. 437 is the single most far-reaching piece of federal legislation
regarding water use within Arizona since Congress authorized the
Central Arizona Project thirty-five years ago. S. 437 is an impressive
and complex bill, designed to provide a comprehensive resolution of
critical water use issues facing the State of Arizona, and Arizona
Indian tribes today. This legislation provides certainty regarding the
use of water in Arizona in a number of ways: it provides water to
settle outstanding water rights claims of certain Arizona tribes;
provides financing of infrastructure so that all tribes can put CAP
water to use; and it provides water for future water rights
settlements. It also provides water necessary to accommodate the
explosive population growth in the cities of central Arizona; it
provides certainty for farmers who currently utilize imported water
supplies from the Colorado River; and it also provides a mechanism to
secure water to protect against future droughts. These arrangements,
necessary to all users of Colorado River water in Arizona are
accomplished utilizing local tax revenues to accomplish the financing
of all undertakings under the global settlement embodied in the
legislation.
The Administration supports the core concepts of the settlements
that are achieved through S. 437 and the overarching goal of resolving
many important water challenges facing the State of Arizona, with the
caveats discussed below. We believe that the comprehensive approach
that is embodied in S. 437 is the right way to resolve these
longstanding disputes regarding the use of the CAP and this portion of
Arizona's allocation to the Colorado River.
Before providing detailed comments on particular provisions of the
bill, some of which will require addressing outstanding concerns, it is
necessary to review the overall structure and goals of S. 437. As we
move forward, this Administration remains committed to working with the
Committee, Senator Kyl, and the settlement parties to reach mutually
agreeable solutions to all remaining issues. The resolution of these
outstanding issues is an extremely high priority for the Department of
the Interior.
background
Even in the days before statehood, Arizona's leaders saw the need
to bring Colorado River water to the interior portions of the State.
During the 1940's and 50's California developed facilities allowing the
utilization of more than its apportionment from the Colorado River and
quickly began full use of its share of the river, and more. During that
same time, Arizona began developing its own plans for utilization of
its 2.8 maf apportionment. However, California effectively prevented
Arizona from implementing its plans, arguing that development and use
of water from Colorado River tributaries within Arizona counted against
its apportionment and limited significant additional development and
diversion from the mainstream by Arizona.
Unable to reach resolution on this issue, in 1952 Arizona brought
an original action in the U.S. Supreme Court, asking the Court to
clarify and support Arizona's apportionment from the Colorado. After 12
years of fact finding by a Special Master and arguments by the two
states, the Supreme Court issued a decision in 1963 affirming Arizona's
2.8 maf apportionment.
Despite Arizona's victory in the Supreme Court, California was
still able to extract a final concession from Arizona. In exchange for
California's support of Congressional authorization in 1968 for the
Central Arizona Project (CAP), Arizona was forced to allow its CAP
water to have a subservient priority to California water use during
times of shortage on the Colorado River system. This was a significant
concession since CAP water use represents more than half of Arizona's
Lower Basin apportionment--approximately 1.5 maf of its 2.8 maf. The
CAP brings this critical supply from the Colorado River through
Phoenix, to Tucson, Arizona via a primary canal of more than 330 miles.
After decades of fighting to get the CAP authorized and
constructed, in the early 1990's Arizona faced financial and water
supply disputes over how the Project--and the State's allocation from
the Colorado River--would be utilized.
For most of the 1990's uncertainty existed for Arizona: uncertainty
over who would receive water from the CAP, and uncertainty over the
costs of the project and who would repay those costs. Perhaps most
importantly to the State, uncertainty existed over the ability of the
State to store water and protect against the eventual shortages on the
Colorado--which have a unique impact on Arizona water users due to the
junior status imposed by Congress in 1968.
The uncertainty also involved complex and contentious litigation
filed in 1995 between the federal government and the Central Arizona
Water Conservation District, the political entity which operates the
CAP and repays the local costs of the project. After years of
litigation over the CAP, extensive negotiations were conducted to
resolve the complicated CAP issues so that the needs of all project
beneficiaries would be adequately addressed.
During these discussions it became clear that financial repayment
and other operational issues could not be resolved until there was a
firm agreement on the amount of CAP water that would be allocated to
federal uses, i.e., allocations to Indian tribes in Arizona. When these
discussions were initiated, 32% of the CAP water was allocated for
Federal uses, 56% for Non-Federal uses and 12% was un-contracted.
Both the United States and the State of Arizona were interested in
dedicating un-contracted water to allow settlement of outstanding
Indian water rights claims and to meet emerging needs for municipal
purposes. The amount of water needed for future Indian water rights
settlements within Arizona turned in large part on consideration of the
large pending claim of the Gila River Indian Community (Community) in
the on-going general stream adjudication of the Gila River system. The
Gila River Indian Reservation encompasses approximately 372,000 acres
south of, and adjacent to, Phoenix, Arizona.
The claim filed by the United States on behalf of the Community in
the Gila River adjudication was for 1.5 million AFA. This represents
the largest single Indian claim in Arizona--and one of the largest
Indian claims in the West. If this claim were successful, the amount of
water available to central Arizona cities, towns, utilities, industrial
and commercial users, and major agricultural interests would be greatly
reduced.
Consequently, on-going negotiations of that claim were put on a
parallel track with the CAP litigation negotiations, with the
understanding that tandem resolution of the issues would be necessary.
The underlying premise of the settlement that emerged--including the
framework of this legislation--is to achieve a comprehensive resolution
of all outstanding CAP issues. This, in turn, will allow sustainable
operation of the CAP in a manner that provides benefits and equitable
treatment to all intended project beneficiaries. The alternative,
piecemeal and sequential resolution of all of the outstanding disputes
on the CAP, would be doomed to fail.
The linkage embodied in this legislation integrates U.S.
obligations under Federal statutes and the trust relationship with
Indian tribes. As with the initial authorization of the CAP in 1968, we
are presented with a unique opportunity to provide a final settlement
of many of the complex Federal, State, Local, Tribal and private water
issues in the State.
In May of 2000, the Department and CAWCD reached agreement on a
stipulated settlement of the CAP litigation. This stipulation serves as
a blueprint for a comprehensive resolution of the suite of CAP issues I
have identified above. The stipulation requires that a number of
conditions must occur before it is effective or final. Under the
stipulation, these conditions must occur before December 2012 or the
stipulation will terminate.
The CAWCD v. U.S. settlement stipulation is contingent on
Congressional enactment of a Gila River Indian Community Settlement;
Amendment of the Southern Arizona Indian Water Rights Settlement
(SAWRSA); and the identification of a firm funding mechanism for the
CAP, GRIC and SAWRSA settlements.
settlement stipulation & s. 437: the arizona water rights
settlement act of 2003
S. 437 approves three separate and significant settlements: the
settlement stipulation reached in the CAWCD v. U.S. litigation
(addressing CAP operational and repayment issues), the Gila River
settlement (addressing water rights claims of the Gila River Indian
Community), and the SAWRSA settlement (addressing water rights claims
of the Tohono O'Odham Nation).
The basic structure of the stipulation developed in 2000 is
preserved in S. 437, subject to certain conditions. The main components
of the settlement contained in S. 437 are to provide: (1) additional
water to resolve tribal claims; (2) certainty regarding allocation of
available water supply; (3) additional water supplies for Arizona's
growing cities; (4) financial and operational certainty for CAWCD
(operator and repayment entity of CAP); (5) affordable water for non-
Indian agriculture; (6) appropriate repayment of CAP costs; (7)
structures and programs to bank water for Arizona's future; (8) and a
firm funding mechanism to provide affordable water to tribes, while
developing the infrastructure necessary to allow all of Arizona's
tribes to fully utilize their CAP supplies.
The structure of S. 437 represents Arizona's extensive efforts to
resolve these contentious issues. The bill is strongly supported by the
relevant Arizona State Agencies, Members of Congress with Arizona
constituencies, the Gila River Community, the Tohono O'odham tribe, and
a wide array of Arizona interests. In light of the diverse parties,
competing interests and longstanding controversies involved, S. 437, if
amended to address certain issues, represents the best prospect to
restructure the CAP in a context that reconciles the Public, Tribal and
Private interests including statutory obligations of the United States.
I will summarize each of the three titles contained in S. 437 and
comment on some of the provisions of each that are of concern to the
Administration.
title i--central arizona project settlement
The critical components of the CAP stipulated settlement are set
forth in Title I of S. 437. They include: (1) a final allocation of CAP
water supplies so that 47% of Project water is dedicated to Arizona
Indian tribes and 53% is dedicated to Arizona cities, industrial users
and agriculture; (2) setting aside a final additional allocation pool
of 197,500 acre-feet for use in facilitating the GRIC settlement and
future Arizona Indian water rights settlements; (3) a final allocation
of 65,647 AFA of remaining high priority (M&I) water to Arizona cities
and towns; (4) relief from debt incurred under section 9(d) of the 1939
Reclamation Projects Act by agricultural water uses, which allows these
users to relinquish their long term CAP water contracts so that the
water can be used for the Indian water rights settlements and future
municipal use; and (5) allowing the Colorado River Lower Basin
Development Fund (LBDF), the Treasury fund where CAP repayment funds
are deposited, to be used for the costs of Indian water rights
settlements, completing tribal water delivery systems and reducing the
cost of CAP water for tribes to affordable levels.
S. 437's utilization of the Colorado River Lower Development Fund
is intended to meet the terms of the stipulation by providing for,
among other things, subsidizing fixed OM&R costs for Indian tribes,
including OM&R costs for the Gila River Indian Community,
rehabilitation of the San Carlos Irrigation Project (SCIP),
construction of Indian Distribution Systems, and funds for future
Indian water settlements.
The financing mechanism assumed in S. 437 is complex, and operates
outside of the normal appropriations process. Given this, the
Administration is currently reviewing the funding provision to
determine whether it is an appropriate way to satisfy the contingencies
of the settlement. There may be other funding mechanisms that meet the
firm funding requirement of the settlement. We look forward to working
with the Committee on this issue.
title ii--gila river indian community water rights settlement
Title II of S. 437 is the Gila River Indian Community Settlement.
This settlement would resolve all of the Community's water rights
claims in the general stream adjudication of the Gila River system,
litigation that covers much of the water supply of central Arizona.
This litigation has been the subject of negotiation and settlement
talks for more than 13 years.
The major components of the settlement are: (1) confirmation of
existing, and dedication of additional, water supplies for the
Community in satisfaction of its water rights claims; (2) use of
existing facilities to deliver the additional water supplies; (3)
funding for on-Reservation agricultural development; and (4) protection
of the Reservation groundwater supplies.
While the United States supports a settlement of the Gila River
Community's water claims, and believes the majority of the provisions
of the Settlement Act in this title are consistent with that objective,
we do have concerns, detailed below, that we want to work on with the
Committee, Senator Kyl and the various parties to promptly resolve.
A. Inclusion of a Settlement With the San Carlos Apache Tribe
In resolving the water rights claims of the Gila River Indian
Community, we must remain mindful not to place the United States in a
position of having conflicting obligations to two Indian tribes. The
Gila River Indian Community and the San Carlos Apache Tribe have
reservations and existing decreed water rights in the same watershed.
In litigation underlying the settlement, the United States has argued
in favor of both the Gila River Indian Community's and the San Carlos
Apache's water rights under the 1935 Globe Equity Decree. That Federal
Consent Decree addresses the water rights of those tribes, as well as
the rights of most non-Indian water users, in the mainstem of the Gila
River above the confluence of the Gila and Salt rivers. The GRIC
settlement will alter operations under the Gila Decree. These changes
have the potential to impact the rights of the San Carlos Apache Tribe.
We believe that additional efforts to resolve the concerns of the
San Carlos Apache Tribe should be taken, and Interior has engaged in a
serious effort to do that. The Department has taken a number of steps
in this regard and is prepared to do more. Interior officials have met
with the San Carlos Tribal leaders on numerous occasions, and our
sincere hope is that we can reach resolution on a wide array of issues
so that agreement on the San Carlos Apache Tribe's water rights can be
added to this legislation as it proceeds. We look forward to working
with the Committee and the Tribes on this matter.
B. Waivers of the United States Enforcement Authorities
S. 437, as introduced, also includes significant waivers of the
United States ability to enforce environmental statutes relating to
water quality in the Gila River basin The settling parties seek to
limit their exposure to environmental liability. However, the
Administration believes the waivers, as currently drafted, may provide
undue immunity from environmental liability and shift costs for cleanup
to the Federal government. This could restrict the ability for the
federal government to clean up the most contaminated waste sites in the
Gila River Basin. For example, the legislation waives claims by the
United States against both parties to the settlement as well as non-
parties. As drafted, this legislation can also be interpreted to
provide a waiver for future claims under certain environmental
statutes, including those under the Superfund authority. This could
restrict the ability for the federal government to cleanup the most
serious hazardous waste sites in the Gila River Basin. These water
quality waivers were not included in prior water rights settlements
affecting Indian Tribes and are not necessary in this legislation.
Following the introduction of S. 437, the Department of Justice
entered into discussions with the settlement parties regarding the
waivers. These discussions continue to progress. The Administration is
committed to continuing these discussions to find a solution to these
significant issues, as this legislation must maintain the Federal
government's ability to protect human health and environment.
C. Overly Broad Waiver of the United States Sovereign Immunity
The Administration also is concerned, as we believe that S. 437
contains an overly-broad waiver of United States sovereign immunity. We
believe that this provision is unnecessary, as sovereign immunity
waivers in the McCarran Amendment allow a suit against the United
States to administer its adjudicated water rights. Further, if such a
waiver is retained, it should be narrowly drafted. The Administration
also has some concern about the scope of certain waivers under Section
312 of the bill.
D. Impacts of the Intended Water Exchanges
S. 437 authorizes several water exchanges between the Community and
various parties in the State, including the Phelps Dodge Corporation,
ASARCO and several municipalities in the Upper Gila River watershed.
While we support the mechanism of water exchanges, we want to work with
the committee to ensure that the current language adequately takes into
account the water rights of the San Carlos Apache Tribe, parties
affected in the State of New Mexico (under the Colorado River Basin
Project Act), listed species and critical habitat under the Endangered
Species Act (ESA), and rights to divert water in relation to the Globe
Equity Decree. Previous analyses indicate that appurtenant structures
and dams involved in this agreement could lead to more extensive and
frequent Gila River drying, which, in turn, could lead to potential ESA
conflicts.
E. Fifth Amendment Takings Concern
Title II places the ownership of all settlement water in the hands
of Gila River Indian Community, notwithstanding the fact that the Gila
Decree (the 1935 Globe Equity Decree) framed its award under that
Decree ``for the reclamation and irrigation of the irrigable Indian
allotments on said reservation.'' We would like to refine the language
of the bill to reduce the likelihood that an individual allottee may
assert a ``takings'' claim based on the settlement. Both Interior and
Justice are committed to working with the settlement parties and the
proponents of S. 437 to reduce any risk of a Fifth Amendment taking and
to assure that the rights of individual Indian allottees are protected.
F. Costs Associated
Federal contributions to the proposed settlement within this Title
include the fulfillment of existing statutory and programmatic
responsibilities and the assumption of new obligations designed to put
GRIC in a position to utilize the water resources confirmed or granted
in the settlement. There are also numerous costs contained within this
title, which the United States does not believe are reasonably related
to the costs avoided and benefits received, and we look forward to
working with the Committee and Senator Kyl prior to further
consideration of this legislation to ensure the costs contained in the
legislation are appropriate.
For example, given the correlative benefits, we support the
rehabilitation and completion of the Indian portion of the San Carlos
Irrigation Project (SCIP)--an irrigation project that was initiated in
the 1930's but never completed and which has fallen into significant
disrepair. However, we believe that the language of S. 437, requiring
the Secretary to provide for the ``rehabilitation, operation,
maintenance and replacement'' of the San Carlos Irrigation Project,
needs to be refined. Our view is that both the cost control and
indexing mechanisms for these expenditures need to be revisited.
Similarly, when looking at the government's cost of addressing
subsidence damages on the reservation, we recognize the settlement
requires the United States to repair past and future subsidence damage.
We believe that federal liability for such damages should be limited.
Additionally, in some instances we believe that existing costs have
been shifted from State parties to the United States, and those costs
may be more appropriately addressed by other existing Federal programs.
We believe disbursements from the Lower Basin Fund should be limited to
those costs which have a direct relationship to the core concepts of
the settlements addressed in S. 437.
We also believe that a closer look should be given to some of the
costs included in the provisions of Title II, dealing with the Upper
Gila River. One example is the costs identified to line San Carlos
Irrigation and Drainage District (the non-Indian component of SCIP)
canals so that water can be conserved. The Administration supports this
concept but believes a greater share of the conserved water should be
provided to the United States for possible use in settling the San
Carlos Apache Tribe's water rights claims in the Gila River.
title iii--amendments to the southern arizona water rights
settlement act (sawrsa)
The Southern Arizona Water Rights Settlement Act, known as
``SAWRSA,'' Pub. L. 97-293, was enacted in 1982 to resolve Indian water
rights claims arising within the San Xavier and Shuk Toak Districts of
the Tohono O'odham Nation. SAWRSA did not settle all outstanding Tohono
O'odham water rights claims. Claims for the Sif Oidak District and
other Reservation lands remain to be settled.
As originally enacted, SAWRSA allocated 37,000 AFA of CAP water to
the San Xavier and Shuk Toak Districts of the Nation, together with
another 28,200 AFA of water to be delivered from any source by the
United States to the Districts. All of the water is to be delivered
without cost to the Nation. The original settlement also requires the
United States to rehabilitate and extend an historic allottee farming
operation and design and construct irrigation facilities sufficient to
put remaining settlement water to use.
Construction of all irrigation facilities and the full
implementation of SAWRSA has not occurred, principally because of a
disagreement over proper allocation of settlement benefits between the
Nation and allottees within the San Xavier District. Because of this
disagreement, the allottees have refused to join in the dismissal of
United States v. City of Tucson, CIV. 75 39 TUC WDB (D. Ariz.), the
litigation which lead to the enactment of the settlement. SAWRSA
requires the United States, the Nation and the allottees to dismiss the
litigation as a condition of full effectiveness of the settlement.
For over ten years, the Department of the Interior, the City of
Tucson and other state parties have been engaged in discussions with
the Nation and the allottees in an attempt to agree on amendments that
would resolve disputed issues. The Nation and the allottees have now
agreed on how settlement water resources and funds should be
distributed. The agreements between the Nation and the allottees are
contained in Title III of S. 437. Essentially, the Nation and the
allottees have agreed upon allocation of water resources, construction
of new irrigation facilities and sharing of settlement funds.
In general, the Administration supports these agreements and we
look forward to working with the Committee to clarify or refine a few
items we remain concerned about. Chief among these is the so called
``net proceeds'' issue that revolves around the United States ability
to make the Cooperative Fund a self sustaining fund and potential
federal liability if it is not self sustaining or is under-funded.
conclusion
It is important to emphasize that the Administration fundamentally
supports this important settlement effort if it is amended to address
concerns discussed above, and we look forward to working with the
Committee to revise specific provisions of the legislation so that we
can support the bill without reservation.
The Administration lauds the tremendous efforts dedicated by all
parties to find a workable solution to this complex set of issues and
supports the core settlement concepts and framework as set forth in S.
437. We recognize that this legislation will resolve long-standing and
critical water challenges facing the State of Arizona. We look forward
to working with the Committee, Senator Kyl, and the settlement parties
to craft legislation that accomplishes these goals in a manner that
comports with Federal financial policy and legal considerations.
This concludes my testimony. I would be pleased to answer any
questions that the members of the Committee may have.
Senator Murkowski. Thank you, Mr. Raley.
Ms. Martin.
Ms. Martin. Good morning, members of the committee. I would
only echo Mr. Raley's support for further efforts to undertake
discussions with the San Carlos Apache Tribe to try to reach
settlement. I think that we feel it is very important that
further efforts can and should be made, and that agreement is
within our grasp.
Additionally, we also must ensure that individual allottee
rights are addressed fully and completely within the
settlement, and we look forward to further review and
discussion on those issues as well.
Thank you.
Senator Murkowski. Thank you. I appreciate the testimony
and the opportunity to ask some further questions.
Both of you have mentioned the San Carlos Apache Tribe and
we recognize that is the title that has been left blank here.
Can you, either one of you, elaborate on the administration's
view of what steps can be taken or are being taken to complete
the negotiations in a timely manner?
Mr. Raley. Madam Chair, we are aware that discussions are
proceeding. We believe that the pace of those discussions needs
to accelerate, but we as a Department are not in a position of
feeling comfortable that it is helpful if we were to dictate or
preordain the outcome of what ultimately need to be discussions
that reach a common agreement between the parties. So we will
be there in the negotiations and obviously the Department and
the administration must be comfortable that the trust
responsibility of the United States to all tribes is fulfilled,
although we recognize ultimately Congress's authority to define
what that is. I think that is all it would be appropriate for
us to say at this point.
Senator Murkowski. If this bill were to be moved forward in
its current form, is there sufficient flexibility in your
opinion to accommodate a settlement with the San Carlos Tribe?
Mr. Raley. Although the bill in its present form has some
open-ended or undefined funding aspects that make it impossible
to calculate the exact expenditures, we believe that there is
and we are comfortable that there is the opportunity for
addressing the needs of the San Carlos Tribe as a part of this
legislation and within the funding mechanism identified in the
legislation, assuming that that ends up being the preferred
mechanism for proceeding.
Senator Murkowski. You spoke a little bit about the funding
mechanisms and that apparently is one of the, I do not know if
we will call it a bugaboo--we will call it a bugaboo. What are
the annual deposits to the Lower Basin Development Fund and
what will the annual withdrawals pursuant to the act under
consideration today--what is going to happen in terms of our
withdrawals?
Mr. Raley. Madam Chair, the annual income to the fund is
between $40 and $50 million. Expenditures under this
legislation, it is difficult at this point to tie that to the
annual amounts because it depends on construction schedules,
but we believe that, should this be the preferred alternative
for funding this settlement, that the needs of all of the
entities for funding under this mechanism could be met within
the revenues that are produced to the lower basin fund.
Senator Murkowski. Is it possible that the funds could be
exhausted by the requirements of this legislation, of S. 437,
prior to other tribes reaching water rights settlements? And if
not, what part of the Lower Basin Development Fund would or
could be available for use by other tribes, such as the White
Mountain Apaches?
Mr. Raley. Madam Chair, our assessment is that, should this
be the preferred mechanism for funding, that there is capacity
within that fund for addressing the reasonably anticipated
needs of all participants in what would be a broader
settlement. We do not believe that this legislation if it
proceeds would result in that fund being exhausted and
therefore not available for other settlements.
Senator Murkowski. How many other tribes still have
outstanding water rights claims?
Mr. Raley. Well, as the Senator knows, there are two
general stream adjudications and my understanding--and if you
will allow me to refer to my notes here so I do not omit any of
these tribes. Subject to confirmation, tribes without
settlement would include: the Navajo Nation, Hopi, White
Mountain Apache, Wallapi, San Juan Southern Payute, Camp Verde
Apache, Pascoyaki, and Tohono Apache.
Senator Murkowski. So under this settlement agreement there
is going to be approximately 67,300 acre-feet of CAP water
available for these future Indian water rights settlements. Is
this going to be sufficient water to settle those claims that
you have just identified?
Mr. Raley. Senator, I believe that if you aggregate the
claims in existence now, it is about 3.3 million acre-feet. If
you subtract the claims that would be addressed within this
legislation, it leaves the claims outstanding at something like
1.7 million acre-feet. Suffice it the say that, just to make a
point, even if the entire Central Arizona Project were
dedicated to those claims, which is not being contemplated by
anyone, that would not provide adequate water by itself.
We believe that resolution of these future claims, first of
all, would not be precluded by this existing legislation, this
proposal, and that it is obvious that for settlement of those
other claims water from other than CAP sources would have to be
included. Otherwise it is simply impossible to even enter into
the ball park of what those claims are. And the quantities and
sources are something that would have to be addressed in claim-
specific negotiations.
Senator Murkowski. I have additional questions, but we will
move on to the other Senators.
Senator Bingaman.
Senator Bingaman. Thank you very much.
Let me go back to this issue of the financing mechanism. Do
I understand that the administration agrees to the use of the
Lower Basin Development Fund to fund this, these settlements in
this legislation, or objects to the use of that fund for that
purpose?
Mr. Raley. Senator, the administration is reviewing that
concept and is committed to finding a concept that works.
Whether or not this is the one that will be ultimately
acceptable to the administration or not has not been
determined.
Senator Bingaman. Do you have any alternatives? I mean,
when I look around, if you want a firm funding source moving it
forward, is there anything else?
Mr. Raley. The Department of the Interior is not aware of
alternative concepts at this time.
Senator Bingaman. So this is the only game in town, and you
are not opposed to using this Lower Basin Development Fund as
the funding source?
Mr. Raley. Well, Senator, that is currently under review in
the Department and the administration and a decision has not
been made.
Senator Bingaman. Okay. I gather you somewhat answered this
in response to Senator Murkowski's question, but do you have an
estimate, could you give us a flow line over the next several
decades as to what would be going into this Lower Basin
Development Fund, what would be coming out, and what would be
left? Is that possible? Does somebody have that?
Mr. Raley. If you will allow me a moment to ask staff. What
I do recall is that it is $40 to $50 million annually inflow.
Senator Bingaman. Right.
Mr. Raley. And that the actions contemplated by this
legislation could be funded within those amounts, generally
speaking. That obviously would be subject to construction
schedules.
But let me--if you will allow me a moment, let me see if we
have more detailed information.
Senator Bingaman. What I would like to see if we could get
something that would say, go for the next 40 or 50 years: Here
is what will be going in each year during this period and here
is what we would expect to be expended from this fund each year
in order to implement this legislation.
Mr. Raley. Senator, if I might offer, given the preciseness
of your question, if you will allow us to respond to the
committee and to you in writing, I believe that might provide
more clarity than a broad answer at this hearing.
Senator Bingaman. I think that would be fine. I think that
would be useful for us to know what the dollars are as best we
understand them. I understand these are projections, but I
think that would be useful.
The Navajo Nation has expressed concern that the CAP water
provided for in this bill, S. 437, to address outstanding
Indian water claims in Arizona is not sufficient to meet the
needs and claims that the Navajo Nation has outside this
legislation. I guess the question would be, in your view, is a
sufficient amount of water reserved from the CAP to settle
these remaining Indian water claims in Arizona, including those
of the Navajo Nation? I guess maybe you just responded in one
of your earlier answers that sufficient CAP water is not going
to be available, but that you are going to look elsewhere to
meet those claims of the Navajos and other Indian tribes. Could
you clarify that once more for me?
Mr. Raley. Senator, I was observing that the numbers simply
speak for themselves, given that there are roughly. If this
settlement were to proceed, 1.7 million acre-feet of claims,
that dwarfs the amount of water available from the entire
Central Arizona Project and, should the claimed amounts be the
reference for settlement it is obvious that water from another
source would have to be available.
We believe that the amount set aside in this legislation is
an appropriate and adequate amount. But beyond that I really
cannot comment, particularly with respect to the Navajo Nation,
because, as the Senator knows, those issues now have been
raised in Federal court litigation with respect to the
Department's responsibility to address those claims and I will
have to defer to the Department of Justice with respect to any
detailed analysis of what amounts might be implicated under the
claims and expectations of the Navajo Nation.
Senator Bingaman. Well, I think you can understand the
concern I am raising, which is that we have got a lot of
unquantified claims out there. We have got claims where we are
not sure how much is going to be actually ultimately
recognized. And here we are considering legislation that goes
ahead and firmly commits a substantial amount of the CAP water
for some of those that have been resolved.
We want to be sure that we are not doing something here
that precludes us from doing justice to the tribes that are
still making claims but have not gotten to the point of
actually having the amount specified. So you understand that--I
mean, I know that this is sort of ready to go and everybody is
anxious to do this piece of it. I am just afraid that by doing
this piece of it without knowing what is left to be done, we
may be closing off opportunities that we do not want to.
Mr. Raley. Senator, we share your concern and that, as
noted in my opening comments, the trust responsibility of the
Department extends to all tribes. The Department believes that
the settlement is consistent conceptually with the Department's
trust responsibilities and does not preclude the fulfillment of
the trust responsibilities of the United States to other
tribes. As this committee wrestles with daily, we believe that
if we were to wait for all issues to be resolved, which in a
perfect world would be preferable, we would wait for decades
more; and that this is a responsible and an appropriate piece
to proceed with at this time and will provide a foundation for
moving forward with both tribal and non-tribal issues in
Arizona and New Mexico.
Senator Bingaman. Let me ask about one other issue. Section
106(b) of the bill reclassifies as non-reimbursable $73.5
million of debt that is owed to the United States for the
construction of irrigation delivery systems for agricultural
water users. What value--what is the Government receiving in
the settlement in return for waiving the repayment requirement
for that $73.5 million and what is the present value of the
$73.5 million repayment that it is proposed that we waive here?
Mr. Raley. Senator, with respect to the present value, if
you will allow we will include that amount in the written
response that we will provide you.
With respect to the question, which we care very much
about, as to what is the value to the United States of this,
the value is water, in that this settlement is predicated on a
final allocation of CAP water that allows the needs of multiple
entities to be met and involves in some cases entities
receiving less water than they had originally anticipated. So
we believe that there is----
Senator Bingaman. So you think these agricultural water
users had a valid claim to water that they are now giving up in
return for the Government foregoing that repayment?
Mr. Raley. Senator, we believe that there is value to the
United States associated with the agreements by agricultural
water uses to participate in this settlement.
Senator Bingaman. And this is the price to get them to
participate in the settlement?
Mr. Raley. Yes, sir.
Senator Bingaman. That is all I have right now.
Senator Murkowski. Thank you.
Senator Kyl.
Senator Kyl. Thank you, Madam Chairman. I will not ask a
question unless either Ms. Martin or Mr. Raley would like to
comment on what I have to say.
Let me just say first of all that I very much appreciate
the testimony and in particular, the notion that there is an
opportunity here and this opportunity may not present itself in
the future; and that I would expand on that by saying that, in
response to the very good questions that have been raised by
both you, Madam Chairman, and you, Senator Bingaman, that there
is a capability built into this settlement to assist all of the
tribes that have outstanding claims, even though some of the
tribes, like the Navajo and Hopi for example, are not in the
Gila Basin.
In other words, the Central Arizona Project brings CAP
water to the central part of the State. Those are the taxpayers
that actually pay back the cost of the CAP. But through
exchange mechanisms we can set some additional water aside and
by various parties doing exchanges actually use some of that
water to satisfy obligations to the Navajo and the Hopi, and
that is how they can be assisted by this fund.
About 50 percent of the CAP water will go to Indians as a
result of this settlement. Back when it was being debated--I do
not know if Senator Akaka or Senator--I think Senator Domenici
would probably remember and Senator Inouye for sure. But if
anybody had said back then that even 20 percent of the water of
the CAP was going to go to Indian use, they would have said no,
that is not the way it is.
Now 50 percent--it is 49 percent roughly, but almost 50
percent--of the water is going to go to Indian tribes.
Obviously, some people had to give up water in order to
accomplish that, including these agricultural users. The
Department is being careful not to characterize the validity of
the claims because there is litigation, obviously, as to that.
But those farmers think they have a pretty good claim, and they
have committed a lot of money, borrowed it. That is the so-
called 9-D debt. Obviously, if they are going to give up some
of their water and no longer use the facilities that have been
constructed, they cannot be asked to continue to pay off those
loans. So that is the value of the U.S. Government there.
I would just make a final comment here. That is that I
think it is appropriate for us to be focusing on the issues
that remain. I wish we could spend all of our time just talking
about all of the things the parties have gotten together on and
all of the benefits of this. I think everybody here is
sophisticated enough to know that we would not be here if there
were not a lot of those benefits and that the remaining work is
to focus on the remaining issues, and that is totally
appropriate.
Therefore, Senator Bingaman, your question and the comments
that Senator Murkowski read from Senator Domenici, we are fully
prepared to work on the issues that are of importance to New
Mexico and understand that those issues need to be resolved.
We have been working with the San Carlos Apache Tribe more
recently about the possibility of an agreement with that tribe
that would bring them into the settlement, and I am hopeful and
I think I can say optimistic, but I better reserve that for the
moment, but at least hopeful, that that will be done by the
time we get ready to actually move the legislation on to the
President.
So the other issues that remain do need to be addressed.
They can be addressed within the appropriate time frame. We are
totally committed to getting them addressed. But as with all of
these opportunities, and going back to the original comment
about the window of opportunity, there is an importance in
getting the process started.
That is why I am so appreciative of Senator Domenici
allowing this hearing to be held even though the issues
regarding New Mexico have not yet been resolved, because it is
another step forward in the process here. We understand that
the journey cannot be completed without a resolution of those
issues, but there is a timing factor here, and if we can get
the process started now I would think we can have those issues
resolved by the time we are done.
Senator Bingaman, you also asked a very key question about
the payments into the fund and out of the fund. There is a lot
of data about that, which we will supply to you. We all need to
know that, and we have that. It is somewhat notional because,
as Mr. Raley said, we are not exactly sure exactly what the
timing on these various contracts is, and that will dictate, to
some extent, how certain monies are paid out.
The Bureau of Reclamation has been working very closely
with the Gila River Indian Community about those contract
issues, but to the extent that that information can be nailed
down, it is there, and it will be provided to the committee.
Actually, it is very specific, and there are some really
interesting and complex charts that try to explain it further.
So we will, for sure, have that information as well.
Those are comments that I wanted to make, and I appreciate
the indulgence of my colleagues.
Senator Murkowski. Thank you.
Senator Akaka, questions?
Senator Akaka. Thank you very much, Madam Chairman.
Ms. Martin, concerns have been raised that the water
allocations from the Central Arizona Project for Indian tribes
are substantially lower than the water allocations for non-
Indian communities. Do you believe the allocation of 47 percent
to tribes and 53 percent to non-Indian users fulfills the
Federal Government's trust obligations to these tribes? And if
not, what is your recommendation?
Ms. Martin. Well, under I think previous agreements the
actual allocation for tribes was lower. So I do believe that
this increase, this 47 percent allocation, is an improvement
and that it does meet the trust responsibility to Indian
tribes.
Senator Akaka. Mr. Raley, as we will hear from other
panelists, there are concerns about the future water supply,
both for agricultural as well as municipal use. As non-Indian
communities continue to expand and water demands increase, do
you believe that the water allocations in the bill will meet
the future demands of both Indian and non-Indian countries?
Mr. Raley. Madam Chair, Senator, the Department believes
that the allocations are fair and appropriate. However, it is
clear that all demands for water for all uses cannot be met
from the Central Arizona Project, and that reality is the basis
for the Secretary's Water 2025 initiative, which points out
that if we are to meet the water needs of the West for all
sectors--ag, urban, tribal, environmental, and recreation--we
need to proceed with tools we know that can work and stretch
the existing water supplies further, because if there is one
thing the Department of the Interior cannot do that is make it
rain or snow. So we are left with the task of managing as
stewards collectively with our State and tribal partners this
most vital resource.
Senator Akaka. I was interested in a comment you made in
your statement about the Navajo Nation's water claims and
mentioned that you would want to talk with the Department of
Justice in order to understand future demands on the CAP. Does
S. 437 have mechanisms in place to address future demands and,
if so, what mechanisms are there?
Mr. Raley. Senator, as Senator Kyl has observed, this
legislation has the capacity to be consistent with and to
enable additional settlements. We also believe that this
legislation does not preclude or prohibit or impair future
settlements, which is the reason that we are able to testify
here today that this legislation is consistent with and would
not result in the Department being unable to fulfill its trust
responsibilities, noting that we very much would like to see
the interests of the San Carlos Apache Tribe dealt with as
being an in-basin user in the Gila Basin that inevitably must
be dealt with.
Senator Akaka. Thank you very much.
Madam Chairman, thank you very much, and I look forward to
working with Senator Kyl on this bill. Thank you.
Senator Murkowski. Thank you.
There were a couple of other questions that I had. I know
Senator Domenici had a question. I am going to be submitting
mine to you for a written response as well as Senator
Domenici's. Senator Bingaman, do you have an additional
question?
Senator Bingaman. I did want to. Thank you, Madam Chair.
Let me ask one additional question.
I notice on page 10 of your testimony you have an
interesting paragraph there and I just wanted to ask you to
elaborate on it. You say: ``S. 437 also includes significant
waivers of the United States' ability to enforce environmental
statutes related to the water quality in the Gila River Basin.
The settling parties seek to limit their exposure to
environmental liability.''
Then you go on to say: ``This could restrict the ability of
the Federal Government to clean up the most contaminated waste
sites in the Gila River Basin. As drafted, the legislation
could also be interpreted to provide a waiver for future claims
under certain environmental statutes, including those under the
Superfund authority.''
I gather your point there is that the administration
opposes those provisions in the proposed legislation?
Mr. Raley. Senator, we believe that additional work is
required to address these issues. The Department of Justice is
in the lead on these issues and we are comfortable that they
can be resolved so that we can fully support those aspects of
this legislation.
Senator Bingaman. So you think some change needs to be
made, but you are not prepared to tell us what it is?
Mr. Raley. The answer is yes and yes.
Senator Bingaman. That is all I have, Madam Chair.
Senator Murkowski. Thank you.
Senator Kyl, anything further?
Senator Kyl. Thank you, Madam Chairman. I would just note
that my understanding is that some of the people who are here
this week to testify and to be here have also been in
consultation with the Department of Justice on precisely that
issue and they report that they are making progress on
resolving that issue. It is another one of the issues that has
to be resolved, but the parties believe can be resolved.
Senator Murkowski. With that, thank you both very much, Mr.
Raley, Ms. Martin. We appreciate your being here this morning.
Mr. Raley. Thank you, Madam Chair.
Senator Murkowski. I would now like to invite up the
members of the second panel who will be providing testimony
here this morning: Mr. Richard Narcia, the governor of Gila
River Indian Community; Ms. Vivian Juan-Saunders, chairwoman of
the Tohono O'odham Nation; Mr. Joe Shirley, Jr., State of the
Navajo Nation; and Ms. Kathy Kitcheyan, the tribal chairwoman
for the San Carlos Apache Tribe.
Senator Kyl. Madam Chairman, as they are being seated might
I be permitted to just make one comment?
Senator Murkowski. Please, go ahead, Senator Kyl.
Senator Kyl. This is a remarkable panel that you have
before you. They are all representatives of--we share
representation of constituents in Arizona. I just wanted to
express my appreciation for all of them being here. I could
discuss in great detail the cooperation that we have had over
the years on many matters, and it has been a real pleasure for
me to get to work with them, and I just very much appreciate
their participation here today.
Senator Murkowski. Thank you.
And a welcome to all of you this morning. I would remind
you that, in the interest of time, if you could attempt to keep
your testimony to the 5 minutes, we would appreciate it. We
understand this is very complex. There is a lot of information
to provide and a great many years have gone before us, so it is
difficult to keep your comments limited. But we do appreciate
that.
Let us begin on this end, please, with Governor Narcia.
Good morning and welcome.
STATEMENT OF RICHARD P. NARCIA, GOVERNOR,
GILA RIVER INDIAN COMMUNITY, SACATON, AZ
Mr. Narcia. Good morning. Thank you, Chairman Murkowski,
Senator Bingaman, Chairman Campbell, and Vice Chairman Inouye,
and members of the Energy and Natural Resources Committee and
the Committee on Indian Affairs.
I am Richard Narcia, governor for the Gila River Indian
Community, and I appreciate the opportunity to share with you
the community's strong support of the Arizona Water Settlement
Act. I would also like to take this opportunity to thank you,
Senator Kyl, for your hard work and leadership in sponsoring
this important legislation; also to thank you, Senator McCain,
for your steadfast support of our community; as well as Senator
Johnson for his commitment and support to our settlement.
This settlement is a monumental achievement for our
community and enjoys the unanimous support of our council, nine
of whom are with me today and are listed in my written
testimony.
The Gila River Indian Community was formally established by
executive order in 1859. The community is comprised of the
Pima's, or the Akimel O'odham, and the Pee Posh, or the
Maricopa, people. We are the largest community in the
metropolitan Phoenix area. Our reservation encompasses nearly
600 square miles, with an enrolled population of over 19,000.
Our history in the Phoenix Valley dates back thousands of
years. Some of the most ancient agricultural irrigation systems
in the world were built by our ancestors and can be found
throughout metropolitan Phoenix. Agriculture was the mainstay
of our community until recent times.
We are the Akimel O'odham, the River People, and, as I
stated, we have resided in the Gila River Valley of central
Arizona for centuries. We are direct ancestors of the ancient
Hohokum, who farmed the Gila River Valley since at least 300
A.D., developing hundreds of miles of irrigation canals to
supply water for crops such as corn, squash, lima beans,
tobacco, and cotton.
Together, the Akimel O'odham and the Pee Posh thrived on
what the Gila River provided--a plentiful source of food, water
for irrigation, and a way of life for all our people. The river
was our source of life, the center of our economic and social
environment. It provided for all the community's needs and as a
result the River People were among the most prosperous, self-
sufficient communities, Indian and non-Indian, in the entire
Phoenix Valley. As settlers moved to the Phoenix Valley, our
community adapted and assisted the new settlers by providing
food and protection. members of our community formed a
component of the first Arizona Territorial Guard.
This all changed in the late 19th century. New settlements
were established upstream from our tribal lands, including
farmers, industry, and other landowners, who began to divert
water from the Gila River. As the turn of the century
approached, the steady flow of the Gila River across our tribal
lands diminished. Today the Gila River does not flow through
our tribal lands. It is now a dry river bed winding through the
desert. The loss of the Gila River has resulted in great
poverty to many members of our community and has led to changes
in our diet that has resulted in the highest per capita
incidence of diabetes of any community in the world.
In 1989, our community and the U.S. Government initiated
water settlement negotiations to address the great uncertainty
about the allocation and the dependability of water supplies to
our reservation and to the more than 3 million people and
businesses of Maricopa, Pinal, Pima, Graham, and Gila Counties
in central Arizona. Nearly 14 years later, we have reached a
comprehensive settlement of our community's water rights claims
and the allocation and priority of water supplies among the
major water users of central Arizona.
The benefits of this settlement for our community are many.
Most importantly, it will guarantee a dependable water supply
to our lands. In total, we will have an annual entitlement of
653,500 acre-feet, most of which will come from the Central
Arizona Project, which delivers approximately 1.5 million acre-
feet of Colorado River water annually to central Arizona. While
this amount is only a fraction of the water which we are
legally entitled to, it does provide our community with a new
source of water to replace the Gila River water that was lost.
The settlement agreement also will ensure us construction
and maintenance of a distribution system that will be needed to
allow delivery of the water to the reservation. Together, the
settlement water and distribution infrastructure will enable
our community members to farm tribal and allotted lands as well
as provide them an opportunity to escape poverty and to
participate meaningfully in the economy of the region. While
there is little chance that we can recapture the prosperity of
our ancestors, the settlement agreement will enable more tribal
members to participate in our ancestors' way of life.
As a result of this settlement, the community will achieve
a separate peace with non-Indian parties throughout Arizona. We
are convinced that this is the right path for the community.
There is no question that our presence may be missed by other
tribes who will still be involved in ongoing litigation.
However, the community has deliberated on this at length and
made its choice.
This is not to say that our choice was easy. To achieve
agreement we, like all to other parties in this settlement,
have had to make many compromises. But we view these
compromises each very carefully and considered and approved by
our council.
The settlement agreement encompassed in the Arizona water
settlement is the top priority of the Gila River Indian
Community. We have expended enormous amounts of time and
resources to reach this agreement with nearly every major water
user in central Arizona. While our community and each party to
this agreement will make sacrifices to fulfill this settlement,
we will do so in exchange for dependable supplies of renewable
water and a more certain economic future.
I want to again express my appreciation to appear before
this committee today and I would like to make a comment. After
having reviewed some of the testimonials that will be heard
today, I just want to reflect on the fact that this settlement
has been very transparent. That was the direction that I gave
when I became Governor to our water negotiation team and to our
negotiators, that we need to be able to address any issue, any
concern of anyone or any entity in our negotiations, that they
had a seat at the table.
Now, recognizing whether or not those entities or people
wanted to have a part of this, that was up to them. But the
fact remains and for the record, our settlement has been very
open and we believe that the negotiations and agreement have
reflected that. I am sure that we will continue to work with
anyone who has concerns about this settlement.
[The prepared statement of Mr. Narcia follows:]
Prepared Statement of Richard P. Narcia, Governor,
Gila River Indian Community, Sacaton, AZ
Thank you Chairman Domenici, Senator Bingaman, Chairman Campbell
and Vice-Chairman Inouye, and members of the Energy and Natural
Resources Committee and the Committee on Indian Affairs. I am Richard
Narcia, Governor of the Gila River Indian Community. I appreciate this
opportunity to share with you the Community's strong support for the
Arizona Water Settlements Act (S. 437). I would also like to take this
opportunity to particularly thank you, Senator Kyl, for your hard work
and leadership in sponsoring this important legislation. I would also
like to thank Senator McCain for his steadfast support of the Community
in accomplishing this settlement, as well as Senator Johnson for his
commitment and dedication to issues affecting tribes throughout the
country and in particular his support for our settlement.
This settlement is a monumental achievement for our Community and
enjoys the unanimous support of our Council, ten of whom are here with
me today. For the record, I would like to acknowledge each of them:
Wally Jones, Eugene Blackwater, Jennifer Allison-Ray, Bernell Allison,
Sr., Cecil Lewis, Gordon Santos, Gerald Sunna, Christopher Soke, Sr.,
Jonathan Thomas, and Harry Cruye. Finally, I would also like to
recognize and thank the members of the Community Water Negotiation Team
for their hard work in making this a reality, including Council members
who are also members of the Team--Harry Cruye, Jonathan Thomas, and
Chris Soke, Dana Norris, the former Director of the Office of Water
Rights, Cecil Antone, the current Director of the Office of Water
Rights, Rod Lewis, the General Counsel for the Community, Ardell Ruiz,
Harlan Bohnee, and Lee Thompson.
introduction
By way of introduction, the Gila River Indian Community was
formally established by Executive Order in 1859. The Community is
comprised of the Akimel O'odham (Pima) and the Pee Posh (Maricopa)
people. We are the largest Indian Community in the Phoenix metropolitan
area, with a Reservation encompassing nearly 600 square miles and with
an enrolled population of over 19,000. We have a long history in the
Phoenix Valley, dating back thousands of years. Some of the most
ancient agricultural irrigation systems in the world were built by our
ancestors and can be found throughout the Phoenix metropolitan area.
Agriculture was the mainstay of our Community until very recent times.
The Arizona Water Settlements Act will help reestablish our
Community's access to renewable sources of water as compensation for
the Gila River water taken from the Tribe beginning over a century ago.
The return of dependable sources of water will enable more members of
our Community to participate in our agricultural heritage and enjoy a
better way of life.
The Arizona Water Settlements Act encompasses the largest Indian
water claims settlement in U.S. history. This agreement has been
negotiated over the last fourteen years by nearly all major water users
in central Arizona, including representatives of our Community, state,
local and other tribal governments, farming and industry. The agreement
establishes and prioritizes the allocation of water among these
parties. It concludes longstanding litigation that has been expensive
and disruptive to our Community and to others in central Arizona,
preventing us from planning future growth and impeding steps to achieve
economic stability and political harmony in the region.
The Arizona Water Settlements Act also provides a mechanism for
funding future Indian water rights settlements in Arizona and the
construction of new water distributions systems for Indian tribes in
the Phoenix Valley as required under existing water settlement
agreements. Thus, it provides major benefits for other Arizona tribes,
both those that have already settled their water claims and are
awaiting the construction of their water systems, as well as those that
are seeking to settle their claims at some point in the future.
our history
To fully appreciate the importance of the Arizona Water Settlements
Act to our Community and its future, I would like to briefly review our
history and the central role of water to our culture and economic
prosperity.
We are the Akimel O'odham, the People of the River. We have resided
in the Gila River Valley of central Arizona for centuries. The direct
ancestors of the Akimel O'odham, the Ancient Hohokum, farmed in the
Gila River Valley since at least 300 A.D., developing hundreds of miles
of irrigation canals to supply water for crops such as maize, squash,
lima beans, tobacco and cotton.
Together, the Akimel O'odham and Pee Posh thrived on what the Gila
River provided--a plentiful source of food for tribal members, water
for irrigation and a way of life for all the Tribes' people. The River
was our breadbasket and the center of our economic and social life. It
provided for all the Community's needs, and as a result, the People of
the River were among the most prosperous, self-sufficient communities,
Indian and non-Indian, in the entire Phoenix Valley. As settlers moved
to the Phoenix Valley, our Community adapted to and assisted the new
settlers by providing food and protection. Members of the Community
formed a component of the first Arizona Territorial Guard.
This all changed in late 19th century. New settlements were
established up-stream from our Tribal lands, including farmers,
industry, and other landowners, who began to divert water from the Gila
River. As the turn-of-the-century approached, the steady flow of the
Gila River across our tribal lands diminished, and with this dependable
water source went our vast farmlands and our ability to sustain all
Members of our Community.
Today, the Gila River does not flow through our Tribal lands. It is
now a dry river bed winding through the desert. The loss of the Gila
River has resulted in great poverty to many Members of our Community,
and has led to changes in our diet that have resulted in the highest
per-capita incidence of diabetes of any community in the world.
background to arizona water settlements act
Our struggle to regain the Gila River began in the early part of
the last century. In 1924, Congress authorized construction of the
Coolidge Dam as the primary feature of a new irrigation project-called
the San Carlos Irrigation Project--that would provide irrigation for
our Reservation. The 1924 Act was intended to address our loss of Gila
River water and, in so doing, fulfill the trust obligation of the
United States to our Community.
The 1924 was also to create a non-Indian component to this
irrigation project. Unfortunately, although the 1924 Act provided that
our component of this project was to be built before the non-Indian
portion, our portion was never completed, and what was built was never
adequately engineered or maintained. Thus, although the San Carlos
Irrigation Project was intended to create an irrigation project for
50,000 of the irrigable acres on our Reservation, it never served more
than 30,000 acres and today serves just over 15,000 acres.
In 1925, citing the 1924 Act, the United States sued water users
upstream of our Community in order to reestablish existing rights of
the Community in the Gila River. Unfortunately, the U.S. government, in
all candor, did not do a very good job in making its case on our
behalf, which resulted in greater frustration and increased federal
liability to our Community. Our frustration was fed by the fact that
when the Community sought to intervene itself in this litigation, the
United States actually opposed our intervention. As a result, we were
prevented then from actually participating in litigation that would set
the framework for our struggle to protect our water rights up to the
present day.
Ten years later, in 1935, this litigation ended in a settlement and
consent decree--called the 1935 Globe Equity Decree--which recognized
the Community's rights to 300,000 acre-feet of Gila River water each
year. This was far less water than our people had access to for
centuries prior to the settlement. Moreover, to this day, we have yet
to receive much more than 100,000 acre-feet annually of the amount
decreed in 1935. Thus, not only did the Community not receive
recognition of all its water rights in 1935, it has not even received
from the Gila River that to which the Globe Equity Court decreed it was
entitled.
As a result, our Community has been forced to continue its struggle
to vindicate its claims to water through litigation. First, in 1982, we
began an effort in federal district court to enforce the 1935 Decree
against upstream Gila River diverters. Second, we filed the single
largest claim for water rights in the Gila River Adjudication, a
separate State court proceeding begun in the mid-1970s to determine and
establish the priority of water rights in the Gila River system and its
tributaries. In this State court adjudication, we are claiming
approximately 1.2 million acre-feet of water annually from these water
systems and seeking judicial recognition that our water rights
supersede those of all other non-Indian users.
Absent the comprehensive water settlement contained in the Arizona
Water Settlements Act, we will have no choice but to continue to pursue
our water rights through this litigation. We will also have to explore
more actively any action we might have against the federal government
for its failure to adequately protect and develop our water resources
as required by its trust responsibility to the Community and its
statutory obligations under the 1924 Act.
the settlement agreement and arizona water settlements act
In 1989, our Community and the United States Government initiated
water settlement negotiations to address the great uncertainty about
the allocation and dependability of water supplies to our Reservation
and to the more than three million residents and businesses of
Maricopa, Pinal, Pima, Graham, and Gila Counties in central Arizona.
Nearly 14 years later, we have reached a comprehensive settlement of
our Community's water rights claims and the allocation and priority of
water supplies among the major water users in central Arizona. Our
settlement is in many ways unique:
One, it is the largest settlement of Indian water rights in
U.S. history, at least to this date.
Two, it involves thirty-five separate parties, both Indian
and non-Indian, most of which have required separate
negotiations and agreements to resolve the specific issues
raised between them and the Community. It is a very large
bundle of compromises, each of which was thrashed out with the
full consideration of its implications and importance in the
overall deal. Its very size precludes the possibility of it
being perfect, but the Community recognizes that it would be
unrealistic to expect perfection in a settlement of this size
and scope. I can assure the Committees that in each instance in
which the Community has compromised, it has done so with due
deliberation by both the Water Negotiation Team and, when
necessary, the prior approval of the Council.
Three, our settlement is part of a more comprehensive
settlement of repayment issues between the United States and
the Central Arizona Water Conservation District. This
settlement establishes a unique framework for resolving funding
and water supply issues not just for our settlement and that of
the Tohono O'odham Nation, but also Indian water rights
settlements already negotiated and approved in the past, and
those to come in the future. This settlement component is
critical to our settlement and without it, the settlement will
not work.
Four, although most Indian water settlements affect only a
single State, ours includes water users in New Mexico as well.
A number of the parties with whom we are settling are located
in the State of New Mexico in the Virden Valley. Moreover, we
have worked closely with the State of New Mexico to ensure our
settlement does not adversely affect the exchange rights that
the State of New Mexico obtained in the 1968 Colorado River
Basin Project Act. We are now actively exploring with the State
of New Mexico, along with all the other affected parties in the
State of Arizona, means of potentially implementing these
exchange rights. If other New Mexico concerns or interests are
raised, we will, of course, do what we can to help to address
them.
Fifth, given the complexity of interests addressed in our
settlement, and the very large number of parties involved, as
well as our geographic location in close proximity to major
metropolitan areas in the Phoenix area, the Community has been
obliged to serve as the primary coordinator of all such
negotiations and to work out issues between parties as well as
our own. This has been a major undertaking on the part of the
Community, but one that we believe is well worth the effort. As
we approach Congress for consideration of this major piece of
legislation, we can safely say that every essential issue that
can be resolved in the context of one individual Tribe's
settlement has been resolved.
Sixth, the Community has actively sought out the views of
other parties potentially affected by this settlement,
particularly other tribes, in an effort to explain our
settlement and alleviate any concerns that we can. I have
personally reached out to all other tribal leaders in the State
in this regard. I cannot guarantee that we completely agreed
with their concerns, but I know that we have made a fair and
reasonable effort to do so. My own experience with other Indian
water settlements in Arizona that were considered without any
consultation or consideration of other tribes' concerns is a
major motivation for me in this regard.
The benefits of this settlement for our Community are many. Most
importantly, it will guarantee a dependable supply of water to our
lands. In total, we will have an annual entitlement of 653,500 acre-
feet of water under the agreement. Most of this will come from the
Central Arizona Project, which delivers approximately 1.5 million acre-
feet of Colorado River water each year to central Arizona. While this
amount is only a fraction of the water to which we are legally
entitled, it does provide our Community with new water sources to
replace some of the Gila River water we have lost--our Community has a
strong desire for actually deliverable water rather than rights to
water that is not enforced.
The settlement agreement also will ensure construction and
maintenance of the distribution systems that will be needed to allow
delivery of water to the Reservation. Together, the settlement water
and distribution infrastructure will enable more of our Community
Members to farm Tribal lands and Allotted lands, as well as provide
them an opportunity to escape poverty and to participate more
meaningfully in the economy of the region. While there is little chance
that we can recapture the past prosperity of our ancestors, the
settlement agreement will enable more Tribal members to participate in
our ancestors' way of life.
I would note that all funds that the Community is to receive as
part of this settlement are being used solely for the development of a
viable water delivery system for our farmers. One portion of the funds
that the Community will receive from this settlement is to be used to
rehabilitate and finally build out the long-awaited San Carlos
Irrigation Project on our Reservation. Although authorized in 1924 and
intended by Congress to be built prior to any non-Indian portions of
that project, it never was completed and what was built has fallen into
substantial disrepair.
The Community has agreed to use most of the funds it receives for
that worthwhile end. The remaining balance is intended to assist the
Community in making the CAP water it receives in lieu of its rights to
the natural waters of the Gila River affordable for its Members and
Allottees. The Community has committed to supplement the funds it
receives from the settlement for this purpose.
As a result of this settlement, the Community will also achieve a
separate peace with non-Indian parties throughout Arizona. The
Community has struggled for this peace for many years, many times
working hand in hand with other Arizona Indian Tribes, such as the San
Carlos Apache Tribe. We are convinced that this is the right path for
the Community at this time. There is no question that our presence may
be missed by other tribes who are still involved in ongoing litigation.
However, the Community has deliberated on this at length and made its
choice.
This is not to say that our choice was easy. To achieve agreement,
we, like all other parties to this settlement, have had to make many
compromises along the way. Some were harder than others, but each was
carefully considered and approved by our Council. We view the package
as developed as one that is worthy of all our support.
The Arizona Water Settlements Act contains numerous benefits for
Arizona. It will eliminate uncertainty among Indian communities, state
and local government leaders, industry, farmers and other citizens,
concerning future water use in central Arizona. This will enable long-
term water planning to proceed for all concerned. The Act will help
settle drawn-out and costly litigation of water rights and damage
claims, enabling all parties to the settlement to refocus on future
economic planning and growth.
The Act also will help ensure that existing water use in central
Arizona and upstream of our Reservation on the Gila River will not be
disrupted or displaced by our claims. Through lease and exchange
agreements with the surrounding cities, the settlement provides for
unique new opportunities for the Community and the surrounding
municipalities to cooperate in their water use and planning. Finally,
the Arizona Water Settlements Act, more than any federal government
action since this water dispute began over a hundred years ago, will
help satisfy the United States' trust responsibility to our Community
and other Indian tribes. It will ensure dependable renewable water
supplies and delivery to Tribal lands, as partial compensation for
water taken from the Community, its Members and Allottees for over a
century.
conclusion
The settlement agreement encompassed in the Arizona Water
Settlements Act is the top priority of the Gila River Indian Community.
We have expended enormous amounts of time and resources to reach this
agreement with nearly every major water user in central Arizona. While
our Community, and each party to this agreement, will make sacrifices
to consecrate this settlement, we will do so in exchange for dependable
supplies of renewable water and a more certain economic future. For our
Community, this settlement offers an opportunity for more of our Tribal
members to partake in the rich agricultural heritage of our ancestors,
the Akimel O'odham and Pee Posh.
I again want to express my appreciation for the opportunity to
appear before the Committees today to share our views on this historic
legislation. We are very hopeful that the Committees will favorably
consider this legislation and that it will be enacted during this
Congress so that our people and so many other stakeholders in Central
Arizona--may finally begin to realize the benefits that will flow from
this long overdue water settlement.
Thank you.
Senator Murkowski. Thank you, Mr. Narcia.
Mr. Narcia. Thank you.
Senator Murkowski. We appreciate it.
Mr. Shirley.
STATEMENT OF JOE SHIRLEY, JR., PRESIDENT, NAVAJO NATION, WINDOW
ROCK, AZ, ACCOMPANIED BY STANLEY
POLLACK, ATTORNEY
Mr. Shirley. Thank you very much, Madam Chair Murkowski,
Senator Kyl, Senator Bingaman. Thank you for the opportunity to
be heard.
We have written testimony. I just want to add a few more to
that written testimony.
Senator Murkowski. Mr. Shirley, can you make sure that your
button is pressed on your microphone there, right at the base
there.
Mr. Shirley. Okay.
Senator Murkowski. See how that works.
Mr. Shirley. Okay. Can you hear me?
Senator Murkowski. That is good, thank you.
Mr. Shirley. Again, thank you, Madam Chair Murkowski,
Senator Kyl, Senator Bingaman, and the rest of the committees.
I want to express a great appreciation to the efforts put
forward by Senator Kyl in Congress to have devoted to
addressing, what time was devoted to addressing the water
issues in the State of Arizona and also water issues related to
Native Americans, including the Navajo Nation in the State of
Arizona.
The Navajo people understand the importance of water,
particularly since almost half the Navajo homes lack running
water. These Navajo families must haul water from distant water
sources in order to have a reliable supply of domestic water.
Thus, the Navajo people do not take water for granted and
support the efforts of the Gila River Indian Community to
settle their water rights claims.
However, there are various aspects of S. 437 that are
troubling to the Navajo Nation. Our concerns are identified in
the written testimony submitted by the Navajo Nation. The most
critical issue arises out of section 104 of the proposed
legislation. That section ties the hands of the Secretary by
requiring a water rights settlement approved by the Congress as
a precondition to the reallocation of Central Arizona Project
water. The Navajo Nation needs a supply of the Central Arizona
Project water today. The community of Window Rock needs a
supplemental supply of drinking water. Although that community
is located in Arizona, the best source of potable water for
Window Rock is from the San Juan River in New Mexico.
The Navajo Nation is close to a final settlement of its
water rights to the San Juan River in New Mexico. The
centerpiece of that settlement is the proposed Navajo-Gallup
Water Supply Project that would bring potable water to the city
of Gallup, New Mexico, and to Navajo communities in western New
Mexico and eastern Arizona. The Navajo Nation needs 6400 acre-
feet of Arizona water for that project and for the settlement
with New Mexico. We hope to introduce settlement legislation
early next year that would authorize this project.
We cannot afford to wait for a settlement of our claims in
Arizona in order for the New Mexico settlement to move forward.
In short, section 104 of S. 437 makes it impossible for the
Secretary to allocate much-needed water to Window Rock. The
residents of Window Rock cannot afford to wait for a settlement
of the Navajo Nation's water rights claims in Arizona as the
precondition to obtaining a much-needed drinking water supply.
We are presently engaged in discussions with the State of
Arizona and the Gila River Indian Community concerning this
issue and hope that we can find a win-win solution for the
Navajo Nation and the community. I have our water rights
attorney, Mr. Stanley Pollack, to answer any of your questions.
Thank you.
[The prepared statement of Mr. Shirley follows:]
Prepared Statement of Joe Shirley, Jr., President, Navajo Nation,
Window Rock, AZ
Chairman Murkowski, Chairman Campbell, and members of the
committee, I am President Joe Shirley of the Navajo Nation. Thank you
for the opportunity to provide testimony before the Committee regarding
the Navajo Nation's views on the proposed settlement for the Gila River
Indian Community to be implemented by Senate Bill 437 entitled the
``Arizona Water Settlements Act.'' The proposed settlement will have a
tremendous impact on the ability of the United States to supply the
Navajo Nation with the water supplies needed to transform the Navajo
Reservation into the permanent homeland envisioned when the Reservation
was established. I ask the Committee to consider those impacts before
recommending the approval of the proposed settlement. Working together,
we are confident that the Gila River settlement can be crafted in way
that will not adversely affect the ability of the Navajo Nation to
obtain the water supplies so desperately needed on the Navajo
Reservation.
Let me begin by saying that the Navajo Nation greatly appreciates
the tremendous effort that Senator Kyl and the Congress have devoted to
addressing the difficult water issues that confront the State of
Arizona. Nothing is more important to the long-term welfare of the
State than developing a reliable supply of water to meet the needs of
all of the State's citizens, Indian and non-Indian alike. That cannot
be done while the water rights of the Indian tribes in the State remain
uncertain and cloud the rights of other water users without providing
the tribes with the water that they so desperately need. We know that
Congress is working hard to find fair and equitable solutions to these
difficult problems, and the Navajo Nation wishes to work with you to
find a way to address these issues in a way that also meets the long
term needs of the Navajo Nation.
The Navajo Nation is not a party to the proposed Gila River
agreement nor were we invited to participate in the settlement
discussions. Having reviewed S. 437 and the settlement that it would
implement, however, it is apparent that there are at least two aspects
of the proposed settlement for the Gila River Indian Community that
involve water resources that are critical to the Navajo Nation. Both of
these issues are matters of utmost importance to the Navajo Nation. In
addition, the legislation represents an enormous federal investment in
providing water supplies to the State of Arizona. We want to be certain
that the present legislation does not preclude devoting further
resources towards solving the difficult water supply issues facing the
Navajo Nation and its neighbors in rural Arizona and New Mexico.
First, Section 104 of Senate Bill 437 reallocates 197,500 acre-feet
per year of agricultural water priority water from the Central Arizona
Project (``CAP'') for use by Arizona Indian tribes. The bill proposes
to transfer to the Gila River Indian Community 102,000 acre-feet of
that supply. In addition, Section 104 prohibits the reallocation of any
of the supply to an Indian tribe in absence of an Indian water rights
settlement that calls for such a reallocation. Moreover, the water in
question is ``agricultural priority'' water which has an extremely
limited reliability. Under the provisions Section 105 of the bill, only
17,448 acre-feet of that supply is firmed up so that it can be used for
municipal and industrial purposes by the other tribes in Arizona for
municipal and industrial purposes. In contrast, Section 104 (b)
reallocates 65,647 acre-feet of the far more valuable municipal and
industrial priority water to non-Indian towns and cities in Arizona.
The Navajo Nation is deeply concerned about these provisions. While
we have worked hard over the last two decades to resolve the Nation's
claims to water throughout Arizona and New Mexico, we have outstanding
needs for water that cannot be put aside during the years that will be
required to achieve an overall settlement of the Nation's claims in
those states. We do not believe that water required to meet the
everyday needs of tribal members should be held hostage until those
settlements are completed. Nor do we believe that the water provided
under the provisions of Sections 104 and 105 is adequate to meet the
needs--or the outstanding claims--of the Navajo Nation.
For example, it is clear that water from the mainstream of the
Colorado River in the Lower Basin is essential to meeting the long term
needs of the Navajo Nation on its Reservation, yet the extent of the
Nation's mainstream rights has never been seriously addressed, let
alone determined. The residents of western portion of the Navajo
Reservation lack reliable water supplies and commonly are forced to
haul water to meet their everyday needs. As a result of these critical
and immediate needs, the Navajo Nation recently brought suit against
the Secretary of the Interior to redress the United States' failure to
obtain and protect a water supply for the benefit of the Nation from
the Lower Basin of the Colorado River. While we recognize that this
litigation poses a threat to various Colorado River programs that are
critical to all of the basin states, the continued neglect of Navajo
interests left us no choice but to proceed with our claims in court.
The Arizona portion of the Navajo-Gallup Project is another example
of the efforts underway to address the immediate drinking water needs
of the Navajo Nation's members. That project would be the centerpiece
of a settlement of the Navajo Nation's water rights claims to the San
Juan River rights in New Mexico. The Navajo Nation and the State of New
Mexico are close to a final settlement agreement and hope to introduce
settlement legislation as early as next year. However, the most
troublesome issue is identifying a supply of water for the Navajo-
Gallup Project to serve the water-short community of Window Rock in
Arizona. A CAP allocation may be necessary for use in Arizona through
the Navajo-Gallup Project, but S. 437 would prohibit the Secretary from
allocating that water supply in the absence of a water rights
settlement in Arizona. The Navajo communities to be served by the
project have an immediate need for additional drinking water and cannot
wait for the resolution of the Navajo claims in Arizona.
Ultimately, the nature and extent of the Nation's water rights in
Arizona must be resolved if there is to be any certainty with regard to
the CAP water supply and for the Indian communities that rely on this
supply. If, in fact, the Gila River settlement eliminates or
substantially reduces the availability of CAP water for other tribal
water rights settlements in Arizona, the United States and the State,
in all likelihood, will not have sufficient Colorado River resources to
facilitate a Navajo mainstream settlement without taking water away
from existing users. In short, we ask that you do not fully obligate
CAP allocations in accordance with the terms of this bill, given the
Navajo Nation's outstanding needs. The failure to recognize those needs
and to obtain and protect a water supply sufficient to meet those needs
will only lead to further controversy and disruption in the future.
Second, section 12.14 of the proposed settlement describes a water
budget for the Gila River Indian Community that includes a supply of
water from Blue Ridge Reservoir, which is located on Clear Creek, a
tributary of the Little Colorado River. The need for water from Blue
Ridge to provide drinking water for water-short communities in the
southern portion of the Navajo Reservation through the Three Canyon
Project is now being studied by the Bureau of Reclamation in an ongoing
study which Senator Kyl has sponsored. The Navajo Nation has always
viewed Blue Ridge Reservoir as the cornerstone of any settlement of the
Navajo rights in the Little Colorado River Basin because it is the only
practical way to provide renewable surface water supplies to meet the
domestic water needs of reservation communities in the vicinity of
Leupp. As a result, the suggestion that Blue Ridge Reservoir provide a
water supply for the Gila River settlement jeopardizes the contemplated
Little Colorado River settlement to the detriment of everyone in the
Basin. It is also important to point out that the water supply for Blue
Ridge Reservoir is subject to the claims of the Navajo Nation in the
Little Colorado River Adjudication, even if a portion of that water
were to be provided to the Gila River Indian Community. In the absence
of a settlement of the Navajo claims on the Little Colorado River, the
Navajo Nation will have no alternative other than to pursue its claims
to such water in the ongoing adjudication.
Third, this is a very substantial settlement. It provides the Gila
River Indian Community with a water budget of 653,500 acre-feet of
water and a hefty amount federal funds. Moreover, it permits the
leasing of subsidized settlement water supplies from the community to
non-Indian water users in central Arizona with no reimbursement to the
United States for the capital costs of CAP. Far more troubling,
however, are the benefits extended to non-Indian water users by the
settlement. For example, Section 106(b) in conjunction with Section 107
appears to render non-reimbursable $73,561,337 of debt incurred by CAP
agricultural water users in Arizona under Section 9(d) of the Act of
August 4, 1939. We fail to see the justification for such waivers.
Moreover, we understand that other non-Indian water users are waiting
in the wings to take advantage of the unique and expensive funding
mechanisms provided by the legislation. Whatever the merits of the
funding mechanisms in the bill, the benefits of those procedures should
be reserved for Indian water right settlements or the provision of much
needed water supplies to tribal communities.
In closing, the Navajo Nation understands the significance of
proposed Gila River settlement for the Gila River Indian Community and
the State of Arizona. Unfortunately, the settlement as currently
proposed jeopardizes the ability to resolve the critical issues facing
Arizona, the United States and the Navajo Nation. The Navajo Nation
wants to work with Congress, Senator Kyl, the State of Arizona and the
other parties to the proposed Gila River settlement to address these
concerns so that the proposed settlement may move forward promptly.
Thank you for the opportunity to testify on this matter of great
importance to the Navajo Nation.
Senator Murkowski. Thank you, Mr. Shirley. Thank you for
being here this morning.
Ms. Juan-Saunders, welcome.
STATEMENT OF VIVIAN JUAN-SAUNDERS, CHAIRWOMAN,
TOHONO O'ODHAM NATION, SELLS, AZ
Ms. Juan-Saunders. Thank you. Thank you, Madam Chair,
Senator Murkowski, Senator Kyl, and Senator Bingaman and
members and staff members from the Senate Committee on Indian
Affairs.
My name is Vivian Juan-Saunders. I am the chairwoman of the
Tohono O'odham Nation. We are located in southern Arizona, with
a land base of 2.8 million acres and an enrolled membership of
28,000. I would like to thank you for the opportunity to speak
on the Arizona Water Settlement Act of 2003. I would first of
all like to express our appreciation to Senator Kyl, who co-
sponsored the introduction of the Settlement Act and was
instrumental in securing a resolution among multiple parties
with varied interests, as well as our appreciation to other
members of the Arizona delegation who expressed their support.
Madam Chair, in your opening remarks you used the term
``monumental'' and I would like to share with you the
extraordinary efforts of the negotiating team in reaching a
consensus on the issues which enabled the introduction of
amendments to the Tohono O'odham Nation's 1982 water
settlement. The negotiating team included representatives of
the Tohono O'odham Nation, the nation's legislative council,
the San Xavier District, the Schuk Toak District--the Tohono
O'odham Nation is comprised of 11 political districts; San
Xavier and Schuk Toak are 2 of the 11 districts--the San Xavier
allottees, the San Xavier Cooperative Farm, the State of
Arizona, the city of Tucson, Asarco Incorporated, which is a
copper mine, and Farmers Investment Company. Officials from the
Department of the Interior also actively participated in the
negotiations.
The written testimony that we submitted includes a detailed
summary of the Southern Arizona Water Rights Settlement Act, as
well as the cost and appropriation items related to the
amendments.
I would like to focus on the benefits which will be
realized by water users in the Tucson Management Area. First of
all, what has historically been widespread uncertainty
regarding the rights of water users in the Tucson Management
Area will be transformed into certainty regarding these rights.
Receipt of several significant benefits under the Southern
Arizona Water Rights Settlement Act was conditioned on final
dismissal of the underlying water litigation, including the
annual delivery of 28,200 acre-feet of water within the San
Xavier and eastern Schuk Toak Districts of the nation, and
collection of damages by the Nation for failure of the United
States to deliver water to the districts. In addition, the
agreement by the Tohono O'odham Nation to waive and release
past and future water claims and past injuries to water rights
only takes effect on final dismissal of the United States v.
Tucson. By agreement among the parties to the amendments, this
lawsuit will be dismissed with prejudice. Under the amendments,
the waiver and release of claims also extends to future
injuries to water rights.
The parties' commitment to dismiss the lawsuit was
predicated on resolving longstanding differences of opinion
between the Tohono O'odham Nation, the San Xavier District, and
the San Xavier allottees regarding the division of water and
financial benefits under the Southern Arizona Water Rights
Settlement Act. Listed in our testimony you will find the
disputes and how they were settled.
Number four, a reliable source of funding is critical to
the timely implementation of the amendments. The interest on
the cooperative fund established under SAWRSA is inadequate to
fund the costs required to fulfill the obligations of the
United States imposed by SAWRSA and the amendments. This
shortfall is addressed in the amendments by the following: The
amendments provide for a significant adjustment in the
principal amount of the fund; B, the amendments also provide
for the deposit in the fund of all proceeds of sale of recharge
credits received by the United States in a managed recharge
project in the Santa Cruz River, using a portion of the 28,200
acre-feet of effluent water deliverable by Tucson under SAWRSA.
The amendments authorize the use of the Lower Colorado River
Basin Development Fund to pay identified costs of implementing
the settlement.
Under the amendments and related settlement agreement:
Tucson, the city of Tucson, has agreed to provide repairs and
funding to repair sinkhole damage in the San Xavier District on
allotted lands and lands held in trust for the nation. Tucson
has further agreed that the nation's claims for subsidence
damages in the San Xavier and eastern Schuk Toak Districts are
preserved and will be processed pursuant to the procedures
outlined in the agreement.
Asarco, the copper mine, has agreed to accept Central
Arizona Project water for processing ore at the Mission Mine
and reduce groundwater withdrawals by an acre-foot for each
acre-foot of CAP water delivered. The intended effect of this
exchange is to stabilize or elevate the groundwater table in
the San Xavier District. Subject to receiving adequate security
to assure payment, the nation, the Tohono O'odham Nation, has
agreed to provide a loan to Asarco to construct the CAP
delivery system to the mine.
Farmers Investment Company has agreed to various
limitations on its groundwater withdrawals affecting the San
Xavier District. The agreement will be recorded in the official
records of Pima County to assure the limitations bind
successors in interest.
Finally, certain provisions of title 1 of the Settlement
Act are essential to implementation of the amendments, and we
have listed what the implementation process will be.
In conclusion, I would just like to highlight the Federal
obligations under the new amendments. Section 311(c)(1) and (2)
authorizes the Secretary to expend sums not to exceed $215,000
for the San Xavier District and $175,000 for the eastern Schuk
Toak District for groundwater monitoring programs. Lastly,
section 311(f) authorizes the Secretary to conduct a
feasibility study of a land exchange between the allottees and
Asarco at a cost not to exceed $250,000.
I would like to conclude my remarks by sharing that we are
very proud of the process for reaching the compromises and
agreements among all parties. This is a monumental task that we
need to recognize and others need to use as an example of how
parties from different backgrounds, tribal and non, can come
together and reach a consensus on issues, especially an issue
as critical as water.
The Tohono O'odham live in the desert. We have survived for
generations in 110 degree weather, and water is a very precious
commodity, and we would support the amendments and urge your
consideration. We also, with respect to the other tribes who
are also in need of this precious commodity, we ask that
consideration be given to the amendments to this act.
Thank you.
[The prepared statement of Ms. Juan-Saunders follows:]
Prepared Statement of Vivian Juan-Saunders, Chairwoman,
Tohono O'odham Nation, Sells, AZ
i. introduction
Chairwoman Murkowski, Chairman Campbell and members of the
Committees. I am Vivian Juan-Saunders, Chairwoman of the Tohono O'odham
Nation. The Nation's Reservation is located in southern Arizona, has a
land base of 2.8 million acres, and is the second largest Indian
reservation in the United States.
On behalf of the 28,000 members of the Nation, I thank you for the
opportunity to speak on the Arizona Water Settlements Act of 2003 which
is an issue of critical importance to our people. I would like to first
express my appreciation to Senator Kyl who co-sponsored introduction of
the Settlements Act and was instrumental in securing a resolution among
multiple parties with varied interests affected by the Settlements Act.
I also extend my appreciation to Representative Hayworth who co-
sponsored introduction of the Act, as well as other members of the
Arizona delegation who have expressed their support.
I would also like to recognize the extraordinary efforts of the
negotiating team in reaching a consensus on the issues which enabled
the introduction of Amendments to the Nation's 1982 water settlement.
The negotiating team included representatives of the Nation, the
Nation's Legislative Council, the San Xavier District, the Schuk Toak
District, the San Xavier allottees, the San Xavier Cooperative Farm,
the State of Arizona, the City of Tucson, Asarco Incorporated and
Farmers Investment Company. Officials in the Interior Department also
actively participated in the negotiations.
The written testimony filed with the Committees includes a detailed
summary of the Southern Arizona Water Rights Settlement Act of 1982
(``SAWRSA''); the Southern Arizona Water Rights Settlement Amendments
Act of 2003 (the ``Amendments''); and cost and appropriation items
related to the Amendments.
I would like to focus on the benefits which would be realized by
water users in the Tucson Management Area (``TMA'') as a result of the
enactment and implementation of the Settlements Act, with particular
emphasis on the Amendments.
1. What has historically been wide-spread uncertainty regarding the
rights of water users in the TMA would be transformed into certainty
regarding these rights.
2. Receipt of several significant benefits under SAWRSA was
conditioned on final dismissal of the underlying water litigation
(United States v. Tucson), including the annual delivery of 28,200
acre-feet of water within the San Xavier and eastern Schuk Toak
Districts of the Nation; and collection of damages by the Nation for
failure of the United States to deliver water to the Districts. (Under
the Amendments, the damage remedy would also apply to a failure of the
United States to complete the rehabilitation and extension of the
Cooperative Farm within stated deadlines.) In addition, the agreement
by the Nation to waive and release past and future water claims, and
past injuries to water rights, only takes effect on final dismissal of
United States v. Tucson. By agreement among the parties to the
Amendments this lawsuit will be dismissed with prejudice. Under the
Amendments, the waiver and release of claims also extends to future
injuries to water rights.
3. The parties' commitment to dismiss the lawsuit was predicated on
resolving long-standing differences of opinion between the Nation, the
San Xavier District and the San Xavier allottees regarding the division
of water and financial benefits under SAWRSA. These disputes have been
settled as follows:
(a) The Amendments provide an apportionment of water between
the Nation, and the San Xavier District and San Xavier
allottees.
(b) The Amendments provide the San Xavier District with the
option to cash out the construction costs of a new farm
authorized for construction under SAWRSA. If that option is
exercised, the District and the allottees will be entitled to
use the funds for a variety of purposes.
(c) The Nation has agreed to make a substantial financial
contribution to subjugate lands within the proposed extension
of the allottees' Cooperative Farm, provide working capital for
the Cooperative Farm and to remediate contaminated groundwater
within the San Xavier District. The amount of this contribution
significantly exceeds the appropriations required by the
Amendments.
4. A reliable source of funding is critical to the timely
implementation of the Amendments. The interest on the Cooperative Fund
established under SAWRSA is inadequate to fund the costs required to
fulfill the obligations of the United States imposed by SAWRSA and the
Amendments. This shortfall is addressed in the Amendments.
(a) The Amendments provide for a significant adjustment in
the principal amount of the Fund.
(b) The Amendments also provide for the deposit in the Fund
of all proceeds of sale of recharge credits received by the
United States in a managed recharge project in the Santa Cruz
River, using a portion of the 28,200 acre feet of effluent
water deliverable by Tucson under SAWRSA.
(c) The Amendments authorize the use of the Lower Colorado
River Basin Development Fund to pay identified costs of
implementing the settlement.
5. Under the Amendments and related Settlement Agreement:
(a) Tucson has agreed to provide $300,000 to repair sinkhole
damage in the San Xavier District on allotted lands and lands
held in trust for the Nation. Tucson has further agreed that
the Nation's claims for subsidence damages in the San Xavier
and eastern Schuk Toak Districts are preserved, and will be
processed pursuant to the procedures outlined in the agreement.
(b) Asarco has agreed to accept Central Arizona Project (CAP)
water for processing ore at the Mission Mine and reduce
groundwater withdrawals by an acre foot for each acre foot of
CAP water delivered. The intended effect of this exchange is to
stabilize or elevate the groundwater table in the San Xavier
District. Subject to receiving adequate security to assure
repayment, the Nation has agreed to provide a loan to Asarco of
up to $800,000 to construct the CAP delivery system to the
Mine.
(c) Farmers Investment Company has agreed to various
limitations on its groundwater withdrawals affecting the San
Xavier District. The agreement will be recorded in the official
records of Pima County to assure the limitations bind
successors in interest.
6. Finally, certain provisions of Title I of the Settlements Act
are essential to implementation of the Amendments.
(a) SAWRSA did not identify the source for the 28,200 acre
feet of water. Title I identifies CAP agricultural priority
water as the source of water to satisfy the annual delivery of
the 28,200 acre feet identified in SAWRSA.
(b) Title I obligates the United States to firm the 28,200
acre-feet of CAP agricultural priority water to a municipal and
industrial delivery priority, with financial or in kind
assistance provided by the State of Arizona.
(c) Title I provides that unallocated CAP water and dedicated
funding will be available for future Indian water settlements.
These features of the Settlements Act are of particular
importance to the Nation in order to facilitate the settlement
of the Nation's remaining water claims in the Sif Oidak
District and portions of adjoining Districts which are within
the boundaries of the Pinal Active Management Area.
ii. southern arizona water rights settlement act of 1982
A. Overview of Settlement
In 1975, the Papago Tribe (now the Tohono O'odham Nation), the
United States and two individual Indian allottees, as representatives
of a class of Indian trust allotment landowners in the San Xavier
District, sued the City of Tucson and other water users in the Upper
Santa Cruz Basin, claiming damages and seeking to enjoin pumping of
groundwater (United States v. Tucson). There was concern that the
litigation would cast a cloud over the future of the Tucson area. Local
entities engaged in extensive negotiations with the United States and
the lawyers for the Indian parties and finally reached a settlement in
1982. In October 1982, Congress passed the Southern Arizona Water
Rights Settlement Act of 1982, 96 Stat. 1274 (``SAWRSA''), which
embodied the settlement.
The terms of the settlement called for the Nation to receive,
without charge, farm improvements, 66,000 acre feet of water annually,
the right to pump 10,000 acre feet of groundwater annually within the
San Xavier District and a $15 million trust fund. (Of the 66,000 acre
feet, 37,800 acre feet is the Nation's contracted Central Arizona
Project (CAP) water for the San Xavier District and the eastern Schuk
Toak District.\1\ An additional 28,200 acre feet of the water was to be
acquired by the Secretary and delivered after United States v. Tucson
was dismissed.) The City was required to transfer 28,200 acre feet of
effluent water to the United States and, with the State and other local
entities, to contribute a total of $5.25 million to a Cooperative Fund.
Interest on the Cooperative Fund was available to the United States for
payment of the ongoing costs of implementing the settlement. The San
Xavier allottees' water rights were to be satisfied out of water
provided to the Nation in the settlement.
---------------------------------------------------------------------------
\1\ The Tohono O'odham Nation is the national government and
consists of Districts organized as political subdivisions of the
Nation. The San Xavier and Schuk Toak Districts are two of the 11
Districts of the Nation. The San Xavier District and the eastern
portion of the Schuk Toak District are within the Upper Santa Cruz
Basin and are part of the SAWRSA settlement.
---------------------------------------------------------------------------
The City, State and local interests timely performed all of their
obligations under the settlement and the Nation agreed to dismiss the
case. The San Xavier allottee landowners objected to certain aspects of
SAWRSA and opposed dismissal of the litigation.
In 1993, allottees filed a class action lawsuit (Alvarez v. Tucson)
in which they sought to enjoin groundwater pumping by the City and
others, and asserted more than $200 million damages. Individual San
Xavier allottees also filed a lawsuit in 1993 against the United States
(Adams v. United States) which asserted breaches of trust related to
the allottees' land and water resources, and sought declaratory and
injunctive relief. Dispositive motions in these lawsuits are pending
before the Court. Rulings on the motions have been suspended to allow
the SAWRSA parties to negotiate amendments which would resolve the
outstanding issues among the parties.
For many years, the Nation, the San Xavier District, the Schuk Toak
District, the allottees, the City of Tucson, the State of Arizona,
Asarco Incorporated and Farmers Investment Co. negotiated amendments to
SAWRSA that would allow full implementation of the settlement, provide
important clarification in the allocation of existing benefits, and
provide more flexible water use by the parties.
B. Specific Benefits and Obligations of Parties
The following is a summary of the substantive provisions of SAWRSA,
as amended by the Southern Arizona Water Rights Technical Amendments
Act of 1992 (106 Stat. 3256).
Nation's Benefits:
1. The United States is required to annually deliver 37,800 acre
feet of CAP water without the Nation having to pay any OM&R or capital
charges.
a. 27,000 acre feet for San Xavier District
b. 10,800 acre feet for eastern Schuk Toak District
2. The United States is required to improve and extend the
allottees' Cooperative Farm in San Xavier and to construct irrigation
works for a new farm in San Xavier to take the CAP water.
3. The United States is required to annually deliver an additional
28,200 acre feet of water suitable for agriculture, after the pending
water claims litigation is finally dismissed.
a. 23,000 acre feet to San Xavier District
b. 5,200 acre feet to eastern Schuk Toak District
4. If the United States fails to deliver any of the 66,000 acre
feet in any year after October 1992, it must pay the Nation damages
equal to the value of the undelivered quantity of water (the deadline
was extended to June 30, 1993 by the Technical Amendments enacted in
1992).
5. The United States established a $15,000,000 Trust Fund which is
managed by the Nation, the interest from which can be used to develop
land and water resources within the Nation.
Nation's Obligations:
1. The Nation agreed to file a stipulation for dismissal of United
States v. Tucson, and to file in court the allottee class
representatives' petition to dismiss.
2. The Nation agreed to waive and release all past claims of water
rights or injuries to water rights, and to waive and release all future
claims of water rights. This waiver and release encompasses past and
future claims of federal reserved water rights in the San Xavier
District and the eastern Schuk Toak District. The waiver and release
does not take effect until United States v. Tucson is finally
dismissed.
3. The Nation agreed to limit pumping of groundwater:
a. To 10,000 acre feet per year in the San Xavier District
b. To the 1981 pumping amount in the eastern Schuk Toak
District
4. The Nation agreed to comply with the water management plan
established by the Secretary of the Interior.
City's Obligations:
1. The City agreed to make 28,200 acre feet of effluent available
to the Secretary.
2. The City contributed $15,000,000 to a Cooperative Fund, the
interest from which is for ``carrying out the obligations of the
Secretary'' under provisions of the settlement.
Other Obligations:
1. Other contributors to the Cooperative Fund were:
State of Arizona--$2,750,000
Anamax, Cyprus-Pima, AS&R (``Asarco''), Duval & Farmers
Investment Co. (``FICO'')--$1,000,000
United States--$5,250,000
2. If United States v. Tucson was not dismissed by October 1985,
the Cooperative Fund was to be terminated and the contributed funds
returned to the contributors (this provision was deleted by the
Technical Amendments in 1992).
3. The United States is not obligated to annually deliver the
28,200 acre feet of water to the Nation until United States v. Tucson
is finally dismissed.
4. The United States is not obligated to pay the Nation damages for
failure to annually deliver any of the 66,000 acre feet of water until
United States v. Tucson is finally dismissed.
5. The Nation can only use its settlement water within the Tucson
Management Area (TMA).
6. The Nation can sell or lease settlement water, but only within
the TMA.
iii. southern arizona water rights settlement amendments act of 2003
The Southern Arizona Water Rights Settlement Amendments Act of 2003
(the ``Amendments'') appears as Title III in the Arizona Water
Settlements Act of 2003 (the ``Settlements Act''). Subject to the
satisfaction of all conditions to the effective date of the Amendments
(Section 302), the Amendments will clarify, restate, supplement and
modify the provisions of SAWRSA in the following respects:
1. The Secretary would be obligated to annually deliver 28,000 acre
feet of water from the federal share of CAP water. The Secretary and
the State are required to cooperate in a program to firm this CAP water
or municipal and industrial delivery priority pursuant to the
obligations in Section 105 of Title I to the Settlements Act.
2. The Secretary would be required to rehabilitate and extend the
allottees' existing Cooperative Farm by a date certain, or pay
specified penalties. The Farm would be extended to 2,300 acres.
Rehabilitation of the Cooperative Farm would include bank stabilization
on the Santa Cruz River and repair of sinkholes.
3. Pursuant to an agreement between the Nation, the San Xavier
District and the allottees, the Nation would make a substantial
financial contribution for subjugation of lands within the proposed
extension to the Cooperative Farm, working capital for the Cooperative
Farm and a fund to remediate contaminated groundwater within the
District.
4. The San Xavier District would receive the option of taking cash
instead of construction of a new farm.
5. Penalties payable by the United States for failure to timely
perform its obligations with regard to the Cooperative Farm and its
extension would be payable to the Cooperative Farm Association.
6. The San Xavier District and the allottees would be entitled to
annually receive up to 35,000 acre feet of the settlement water for
beneficial use, subject to compliance with the Nation's water code.
7. SAWRSA does not provide for specific releases of claims for
future injuries to water rights. The release of claims for future
injuries to water rights would be required by the Amendments so long as
groundwater withdrawals outside the San Xavier District are in
compliance with State law and with the related Settlement Agreement.
8. The waiver and release of water rights by the Nation and the
allottees, other than the rights established in SAWRSA, would be
confirmed, clarified and made more explicit. One of the conditions to
the effective date of the Amendments would be final dismissal of the
litigation. As to any allottees who opt out of a class, their water
rights, if any, would be barred.
9. Lands acquired by the Nation outside the boundaries of the
Nation's Reservation which the Nation seeks to have taken into trust by
the United States will not include federal reserved rights to surface
water or groundwater.
10. SAWRSA now limits the Nation to pumping no more than 10,000
acre feet of groundwater per year within the San Xavier District, with
no provisions for underground storage and recovery. The Amendments
would create a deferred pumping storage account, with an initial credit
to recognize a portion of the groundwater allowance that has not been
pumped since 1983. Withdrawals from the deferred pumping storage
account could not exceed 10,000 acre feet in any year or 50,000 acre-
feet over any ten-year period. The Amendments would also allow direct
underground storage and recovery of surface water, in a manner similar
to that provided for under current State law. Comparable provisions are
made for pumping groundwater within the eastern Schuk Toak District.
The Nation could also pump additional groundwater during CAP shortage
periods and interruption in CAP deliveries.
11. SAWRSA now requires that all of the Nation's water be used
within the boundaries of the Tucson Management Area (TMA). The
Amendments would allow the Nation to lease its water outside the TMA,
after giving a right of first refusal to users within the TMA. It would
also allow the Nation to use a portion of its settlement water within
the Nation's Reservation outside of the TMA.
12. A new comprehensive Settlement Agreement among the Nation, the
allottee classes, the United States, the State of Arizona, the City of
Tucson, Asarco and FICO would be approved by the Amendments.
13. Separate agreements would be entered into among the Nation,
United States, allottees and Tucson; the Nation, San Xavier District,
allottees, the United States and Asarco; and the Nation, San Xavier
District, allottees, United States and FICO. These agreements would be
confirmed and approved by the Amendments.
a. The Tucson Agreement provides:
(i) For the payment by the City of Tucson of $300,000
to the San Xavier District to establish a sinkhole
remediation fund to be used to maintain and repair any
future sinkholes after the United States has completed
its sinkhole repair project.
(ii) For the release by the United States and the
allottees of past, present and future claims for
damages from sinkholes or subsidence; release by the
United States and the Nation of past, present and
future claims for damages from sinkholes; and an
administrative process for review by the City of any
claim of the Nation for damages from subsidence before
any court action is filed on such claim.
b. The Asarco Agreement provides:
(i) Up to 10,000 acre feet of the 35,000 acre foot
allocation of CAP water for use in San Xavier will be
delivered annually to Asarco for mining purposes in
exchange for an equivalent reduction in groundwater
pumping pursuant to a water agreement with the Nation.
(ii) Asarco will have an option to renew the existing
on-Reservation well site lease with the Nation for an
additional 25 year term.
(iii) Subject to adequate security to assure
repayment, the Nation agrees to loan Asarco up to
$800,000 for construction of a CAP delivery system
repayable over a period not to exceed 14 years.
(iv) Pursuant to A.R.S. Sec. 45-841.01, the Nation is
qualified to earn marketable storage credits which have
an assigned value under the Asarco Agreement and are
used to repay the Asarco loan and thereafter
apportioned between the Nation and the San Xavier
District.
(v) With the exception of discharges of toxic or
hazardous substances to groundwater, certain claims for
groundwater contamination by Asarco are settled by
Asarco payments of water lease delivery charges into a
settlement fund, with Asarco making additional direct
payment from its funds to the extent of any shortfall
in the scheduled payment amount.
(vi) Waivers and releases of all past and future
claims by the Nation, San Xavier District, allottees,
United States and Asarco related to withdrawal of
groundwater by the parties within the TMA.
c. The FICO Agreement provides:
(i) Limitation of 850 acre feet annual withdrawal of
groundwater by FICO within two miles of the exterior
boundaries of the San Xavier District.
(ii) Limitation of 36,000 acre feet annual withdrawal
of groundwater by FICO from all FICO lands.
(iii) Prohibition on FICO from selling groundwater
credits to third parties for withdrawal within three
miles of the exterior boundaries of the Tohono O'odham
Nation.
(iv) Except as otherwise provided in (i), (ii) and
(iii) above, waivers and releases of all past and
future claims by the Nation, allottees, United States
and FICO related to withdrawal of groundwater by the
parties within the TMA
(v) FICO shall record the Agreement in the official
records of Pima County upon the effective date of the
Amendments.
(vi) Terms of the Agreement are binding on heirs,
devisees, executors, assigns and successors of the
parties.
iv. funding costs under amendments
The following is a summary of the various provisions in the
Amendments that authorize use of the Lower Colorado River Basin
Development Fund. The summary first discusses federal obligations in
the Amendments that arise from obligations in SAWRSA and second new
federal financial obligations under Amendments.
A. Federal Obligations Arising From SAWRSA
Section 304(c)(3)(B): Authorizes the Secretary of the Interior to
pay to the San Xavier District the sum of $18,300,000 in lieu of and in
full satisfaction of, the obligation of the Secretary to construct a
``new farm'' in the San Xavier District including design and
construction activities relating to additional canals, laterals, farm
ditches, and irrigation works for the efficient distribution of water
described in section 303(a)(1)(A) of SAWRSA. Use of the funds is
regulated pursuant to section 304(f).
History of the Expenditure. Section 303(a)(1)(B) of SAWRSA directs
the Secretary, acting through the Bureau of Reclamation, to improve and
extend the irrigation system, including the design and construction of
additional canals, laterals, farm ditches and irrigation works,
necessary for the efficient annual distribution for agricultural
purposes of 27,000 acre feet of water referred to in 303(a)(1)(A) of
SAWRSA. Section 304(c)(3)(B) of the Amendments gives the San Xavier
District the option to cash out the construction benefit of a new farm
and thereby use the portion of the 27,000 acre feet annual distribution
not required for the existing or extended Cooperative Farm for other
purposes. Identification and retention of this amount in the Lower
Colorado River Basin Development Fund is a condition to the Amendments
becoming effective pursuant to section 302.
Sections 308(d)(2)(A)(i) and (ii): Authorizes the Secretary to
enter into a contract with the San Xavier District and to pay a sum not
to exceed $891,200 for the development of a water management plan for
the San Xavier District and authorizes the Secretary to enter into a
contract with the Nation and to pay a sum not to exceed $237,200 for
the development of a water management plan for the eastern Schuk Toak
District.
History of the Expenditure. Section 303(a)(3) of SAWRSA directs the
Secretary, acting through the Bureau of Reclamation, to establish water
management plans for the San Xavier District and the eastern Schuk Toak
District, that have the same effect as those plans developed under
State law. Identification and retention of this amount in the Lower
Colorado River Basin Development Fund is a condition to the Amendments
becoming effective pursuant to section 302.
Section 310(a)(2)(A)(ii): Establishes that the Cooperative Fund may
be increased in principal by an amount not to exceed $32,000,000 based
on a determination by the Secretary that the additional funds are
necessary to carry out the Amendments and after providing notice to
Congress.
History of the Expenditure. Section 313(b)(3)(B) of SAWRSA provided
for an additional sum up to $16,000,000 which the Secretary determined
to be necessary to meet the Secretary's obligations, after providing
notice to Congress. SAWRSA provides that the $16,000,000 shall be
adjusted pursuant to section 312(b)(2). Section 313(b)(2) states that
the adjustment represents the additional interest that would have been
earned by the Cooperative Fund had the monies been contributed
initially. The Technical Amendments to SAWRSA enacted in 1992
inadvertently dropped the reference to the means for calculating the
adjustment. Thus, the requirement to adjust the $16,000,00 existed
between 1982 and 1992.
Section 317(a)(1): Authorizes an expenditure of $3,500,000
(adjusted for fluctuations in construction costs) to construct features
of the irrigation systems described in sections 304(c)(1) through (4)
that are not authorized to be constructed under any other provision of
law.
History of the Expenditure. Section 303(a)(4) of SAWRSA authorizes
the appropriation of up to $3,500,000, adjusted for fluctuations in
construction costs.
Section 317(a)(5): Authorizes an expenditure of $4,000,000 to carry
out section 311(d).
History of Expenditure. Section 303(b)(1) of SAWRSA authorized the
Secretary to carry out a study to determine the available and
suitability of water resources within the Sells Reservation.
Identification and retention of this amount in the Lower Colorado River
Basin Development Fund is a condition to the Amendments becoming
effective pursuant to section 302.
B. New Federal Obligations of Amendments
Sections 311(c)(1) and (2): Authorizes the Secretary to expend sums
not to exceed $215,000 for the San Xavier District and $175,000 for the
eastern Schuk Toak District for groundwater monitoring programs.
History of the Expenditure. The tribal parties and the federal team
reached agreement on this new obligation prior to the introduction of
S. 3231, the Arizona Water Settlements Act of 2000. Identification and
retention of this amount in the Lower Colorado River Basin Development
Fund is a condition to the Amendments becoming effective pursuant to
section 302.
Section 311(f): Authorizes the Secretary to conduct a feasibility
study of a land exchange between the allottees and Asarco at a cost not
to exceed $250,000.
History of the Expenditures. This is a new obligation. The
introduction of S. 2992, the Arizona Water Settlements Act of 2002,
included a land exchange study with Asarco but did not provide a
specific dollar amount for the study. The Amendments have included a
sum not to exceed $250,000. Identification and retention of this amount
in the Lower Colorado River Basin Development Fund is a condition to
the Amendments becoming effective pursuant to section 302.
Senator Murkowski. Thank you very much.
Ms. Kitcheyan, welcome.
STATEMENT OF KATHLEEN W. KITCHEYAN, CHAIRWOMAN,
SAN CARLOS APACHE TRIBE, SAN CARLOS, AZ
Ms. Kitcheyan. Good morning, Chairwoman Murkowski, Chairman
Ben Nighthorse Campbell, Senator Kyl from the great State of
Arizona, and Senator Bingaman and other distinguished members.
My name is Kathy W. Kitcheyan. I am the chairwoman of the
San Carlos Apache Tribe. On behalf of the tribe, I would like
to extend my appreciation to you for giving us an opportunity
to testify today.
Our land base is just under 2 million acres. We have a
population of approximately 13,000 tribal members. Please
accept my comments on behalf of the tribe. As you know by now,
the San Carlos Apaches are opposing the GRIC settlement. GRIC
would receive enormous quantities of water from the CAP canal
and other sources delivered to the GRIC reservation, 60 miles
downstream from our San Carlos Apache Reservation to mitigate
and replace what GRIC has agreed others can use from streams on
our land and the Gila River.
Absolutely no one should have the right to say what can be
used from our land. The Gila River on our reservation will most
certainly die under the GRIC settlement. It suffers greatly
now, as do our tribal members, from the violations to the Globe
Equity decree and Arizona versus California by nits in the
upper valleys of Arizona and New Mexico. The GRIC settlement
disregards those decrees and our decreed rights. It stands
Federal law and the law of two States, as well as two Federal
decrees, on their heads. It does all of this in profound injury
to our river, our land, and our people.
In our culture water is sacred. This may be difficult for
some of you to understand, but it is the lifeline of our
existence, along with our language and our culture and our
spirituality. Therefore, the health of the Gila River reflects
the health of our land and our people. To kill the river with
more diversions than the river can provide and still remain
clean and healthy is a crime. Right now the river is not
running. Yet, upstream from us the turbine pumps hum 24 hours a
day to irrigate 40,000 acres of lush crops. In comparison, our
tribal farm is only 400 acres, and there is not enough water
for it as it is.
Coolidge Dam, which was named after one of our presidents,
President Calvin Coolidge, is synonymous with San Carlos Lake.
It is located on our reservation and it is fed by the Gila
River. It is going dry. When the lake is healthy, it provides
recreation for up to 250,000 annual visitors, and it is a
critical environmental asset for the Southwest. However, with
the dam going dry there is a possibility of endangered species
dying--the willow flycatcher, the bald eagle, the razorbacked
sucker, and the peregrine falcon.
This is the reason we have tried for decades to get a
minimum pool established in the lake of at least 75,000 acre-
feet. We can store our CAP water from our 1992 Settlement Act
there, but only if we pay $74 an acre-foot for the CAP water.
The same water costs the non-Indian farmers $28. Is that fair?
This situation will get worse under titles 1 and 2 of the act.
Of course, before we can store CAP water in the Coolidge
Dam the water must first run out of the mountains in New Mexico
and escape the pumps in the upper valleys. This is a rare
occurrence now. Today the only water in the dam, about 30,000
acre-feet, was purchased by the tribe at a cost of $66 per
acre-feet. But for the tribe's purchase, the lake would be dead
right now. This problem will get worse under the GRIC
settlement.
As it is, we are not permitted to store our Globe Equity
water in Coolidge Dam. We must divert it from the flowing
river. We have the earliest priority above Coolidge Dam at 1846
to divert the waters of the Gila River. Still, the river does
not run to us. It is diverted by the pumps of the upper valley.
This will get worse if the bill before you is enacted and
survives our court challenges.
What is very clear and transparent is that our neighbors
upstream do not obey the law of the decree. They do not obey
the State law of prior appropriation. We do, they do not. Yet
this bill will somehow make it legal, retroactively legal. This
is the second time they have tried to avoid the decree in the
many court cases we have won over decades of litigation. They
got the Arizona legislature to do the same scheme a few years
ago and the Arizona Supreme Court said that was
unconstitutional, not just a little bit.
This bill is much worse. Congress should look long and hard
at this bill before it sets a course which upsets the prior
appropriation law of the West and Federal decrees such as the
Globe Equity and Arizona versus California decrees, and the
vested property rights of the tribe and thousands of others who
expect to take our water only in turn when there is a shortage.
The BIA stipulated that GRIC will get the first 210,000
acre-feet under the Globe Equity decree to irrigate 35,000
acres, and until they got that the Apaches could not get any of
the 6,000 acre-feet to irrigate the 1,000 acres on our
reservation. This agreement was punitive. To make it worse, the
BIA built Coolidge Dam on our reservation and flooded out our
farms, homes, mill, and the graves of our ancestors. We were
not allowed to store our meager 6,000 acre-feet in the lake,
and even if we could we have no way or electricity to get the
water out of the lake in order to use it.
The power site at Coolidge Dam belongs to the San Carlos
Apache Tribe. Instead of paying the power proceeds to us
required by the Federal Power Act of 1928, Congress promised
our tribe that it would receive electricity power at 2 mills
for irrigation, schools and agency purposes and a power line
from Coolidge Dam to the little town of Bylas. We are still
waiting.
A very important use for basin project funds under the CAP
was to pay for reduced power generation in Coolidge Dam in the
event New Mexico received CAP water. All of the diversions
authorized by the legislation before you reduce the value of
the power site and the potential electricity and revenue from
power generation at Coolidge Dam.
Senator Murkowski. Ms. Kitcheyan, I am going to have to ask
you to wrap it up very soon.
Ms. Kitcheyan. I am going to wrap it up here, okay.
We certainly do not need more paper unless that paper is
somehow respected. We need a fair share of the water which is
being diverted upstream. We need to receive the CAP water that
we have been entitled to since 1980. We need to receive the
water and CAP funding that we are entitled to in our 1992
settlement. Our CAP water price should be reasonable. We should
get a fair share of the basin project fund and revenues,
including a fair share of the power revenues. Unlike GRIC and
SCIDD, we do not have a CAP canal running through our land to
bring Colorado River. No one can make us whole by replacing our
water with anything downstream. If the Gila River does not
flow, we have no way to get water for the 1,500,000 acres of
our readiness in the Gila Valley.
In conclusion, Madam Chair, I would like to emphasize that
San Carlos Apaches and the U.S. Government had a treaty
approved in 1852. As you know, my ancestors did not ask for
this treaty. At the origin of this treaty we had over 2 million
acres of prime real estate. Unfortunately, it was so prime that
the U.S. Government reduced it five times: in 1873, in 1874,
1876, and 1877, respectively. This was done to pacify the greed
of miners and ranchers because they had discovered gold,
silver, copper, and water.
Yet our Apache people remained loyal and loved their
country. They sent their men to World War I, and these soldiers
were not even U.S. citizens at the time. This came later, in
1924. World War II came again and many of our men served and
died. They did not even have the basic tenets of citizenship.
They could not vote until 1948.
A San Carlos Apache was the first soldier to die in the
Gulf War. I remember this day like I remember the day when John
F. Kennedy died. Veterans Day is very important to us. We
celebrate it. Senator Kyl was one of our grand marshals a few
years back.
I share all of this with you----
Senator Murkowski. Ms. Kitcheyan, I am going to have to ask
you to--you have gone over your time twice.
Ms. Kitcheyan. Okay. I have 10 seconds, ma'am.
Senator Murkowski. Okay.
Ms. Kitcheyan. I share all of this with you to inform you
and remind you of all the injustices and inequities suffered by
my people, and if the GRIC settlement is approved without any
consideration of us, the San Carlos Apaches, then once again
the U.S. Government will have failed to uphold their own
treaty--did we not just hear about trust responsibilities?--in
which they promised to protect our land, natural resources, act
in good faith, and to legislate in the best interests of the
San Carlos Apaches.
Thank you, Madam Chair. I am sorry I took more time than
you thought was necessary, but I came thousands of miles to be
heard. Thank you.
[The prepared statement of Ms. Kitcheyan follows:]
Prepared Statement of Kathleen W. Kitcheyan, Chairwoman, San Carlos
Apache Tribe, San Carlos, AZ
Good morning Chairwoman Murkowski, Chairman Ben Nighthorse
Campbell, Senator Kyl and Members of the Committee. I am Kathy
Kitcheyan, Chairwoman of the San Carlos Apache Tribe. The Tribe thanks
the Chairwoman and the Committee for the opportunity to testify today.
The Tribe submitted formal written testimony yesterday. I'm a
school teacher and I am sure you are all prepared for a quiz on our
papers.
It troubles the Tribe to oppose Title I and II of the Act and the
associated agreements, exhibits and attachments which total nearly
4,000 pages. However, the physical burden of substantially all of the
provisions of Title II, which we refer to as the GRIC Settlement, and
which deals with the Gila River and its tributaries upstream on the
Gila River from our Reservation, are suffered by our Tribe--the Apache
People--not by GRIC.
GRIC would receive enormous quantities of water from the C.A.P.
Canal and other sources delivered to the GRIC Reservation 60 miles
downstream from our San Carlos Apache Reservation to mitigate and
replace what GRIC has agreed others can use from streams on our land
and the Gila River.
The Gila River on our Reservation will most certainly die under the
GRIC Settlement. It suffers greatly now, as do our Tribal Members, from
the violations to the Globe Equity Decree and Arizona v California by
interests in the Upper Valleys of Arizona and New Mexico. The GRIC
Settlement disregards those Decrees and our Decreed rights. It stands
Federal law, and the law of two States, as well as two Federal Decrees
on their heads. It does all of this in profound injury to our River,
our Land, and our People.
We Apaches are patriots. We have fought for America as special
forces and Marines in disproportionate numbers compared to others. That
is true as we speak. Our Tribal Members are among the first to go into
battle all over the world in defense of freedom and the United States.
A San Carlos Apache was the first soldier to die in the Gulf War.
Veterans Day--not any other--is the most important day to our Tribe, as
Senator Kyl knows personally. He honored the Tribe as the Grand
Marshall of our Veterans Day Parade a few years back.
Senator Kyl--remember that Day??? It rained and rained. I hope you
understand that rain is a blessing from our Creator. It may have
``rained on your parade'', but in our culture, the Creator blessed your
presence and the Tribe that day. We need you to come back. We need some
more rain.
Please understand, in our culture the Gila River--all rivers and
springs--are sacred. The health of the Gila River reflects the health
of our land and our People. To kill the River with more diversions than
the River can provide and still remain clean and healthy, is a crime
against us. Right now the River is not running, yet upstream from us
the turbine pumps hum 24 hours a day to irrigate 40,000 acres of lush
crops. Downstream, our farm is dead.
San Carlos Lake, which is located on our Reservation and fed by the
Gila River, is going dry. When the Lake is healthy it provides
recreation for up to 250,000 visitors a year, and is a critical
environmental asset for the Southwest. It will die with millions of
fish and birds being harmed. That is the reason we have tried for
decades to get a Minimum Pool established in the Lake of at least
75,000 acre-feet. We can store our C.A.P. water from our 1992
Settlement Act there--but only if we can pay the $74 an acre-foot for
this C.A.P. water that only costs the non-Indian farmers $28. This
situation will get even worse under Titles I and II of the Act.
Of course, before we can store C.A.P. water in San Carlos Lake, the
water must first run out of the mountains in New Mexico and escape the
pumps in the Upper Valleys. That is a rare occurrence now. Today, the
only water in the Lake--about 30,000 acre-feet--was purchased by the
Tribe at a cost of $66 per acre-foot. But for the Tribe's purchase, the
Lake would be dead right now. This problem will only get profoundly
worse under the GRIC Settlement.
We are not allowed to store our Globe Equity water in San Carlos
Lake. We must divert it from the flowing River. We have the earliest
priority above Coolidge Dam at 1846 to divert the waters of the Gila
River. Still the River does not run to us--it is diverted by the pumps
of the Upper Valley. This will also get worse if the bill before you is
enacted and survives our Court challenges.
What is clear to us is this. Our neighbors upstream do not obey the
law of the Decree. They do not obey state law of prior appropriation.
We do--they don't. Yet, this bill will somehow make all that is
illegal--retroactively legal. This is the second time they have tried
to avoid the Decree and the many court cases we have won over three
decades of litigation. They got the Arizona legislature to do this same
scheme a few years ago and the Arizona Supreme Court said that was
unconstitutional. Not just a little bit, but pervasively so. This bill
is much worse. Congress should look long and hard at this bill before
it sets a course which upsets the prior appropriation law of the west,
and federal decrees such as the Globe Equity and Arizona v. California
Decrees, and the vested property rights of the Tribe and thousands of
others who expect to take our water only in turn when there is a
shortage.
When the waters flow in the Gila on our Reservation now, it is
either an enormous flood--which first must fill up the Upper Gila
Valley aquifers--before it can come through our Reservation, and then,
only in high volume flows. Even then, when the River is running on
priority, the first 437.5 c.f.s. must be bypassed by us for the benefit
of SCIP, which is the BIA project which delivers water to GRIC and the
non-Indian San Carlos Irrigation and Drainage District, which we call
SCIDD.
The BIA stipulated that GRIC would get the first 210,000 acre-feet
under the Globe Equity Decree to irrigate 35,000 acres, and that until
they got that, the Apaches could not get any of the 6,000 acre feet to
irrigate the 1,000 acres on our Reservation. This agreement was
punitive. To make it worse, the BIA, built San Carlos Lake on our
Reservation and flooded out our farms, homes, grist mill and the graves
of our relatives. We were not allowed to store our meager 6,000 acre-
feet in the Lake, and even if we could, we have no way or electricity
to get the water out of the Lake in order to use it.
The power site at Coolidge Dam belongs to the San Carlos Apache
Tribe. Instead of paying the power proceeds to us required by the
Federal Power Act in 1928, Congress promised our Tribe that it would
receive electricity power at 2 mils for irrigation, schools and agency
purposes, and a power line from Coolidge Dam to the town of Bylas. We
are still waiting. A very important use for Basin Project funds under
the C.A.P. was to pay for reduced power generation in Coolidge Dam in
the event New Mexico received C.A.P. water. All of the diversions
authorized by the legislation before you reduce the value of the power
site and potential electricity and revenue from power generation at
Coolidge Dam.
The water quality in the Gila River makes us ill. It damages our
teeth. Because it contains high concentrations of heavy metals,
including eight times the safe drinking water level for copper. The
poor water quality of the River contributes and complicates other
health problems suffered by the Tribe, including what appears to be a
cancer cluster at Bylas on the Reservation. The River on our
Reservation is classified by Arizona as ``not swimmable or drinkable.''
We understand why this is so when it is dry. We do not understand why
the River is not ``swimmable and drinkable'' when it runs.
The waters of the River also kills our crops and damages our land.
The water quality in the Gila River will only get worse as a result of
the legislation before you. We have a water quality injunction imposed
by the Federal Court in Globe Equity to give us water under the Decree
to grow moderately salt sensitive crops, as we once did in the past.
That was not in the distant past.
My mother and father farmed on the Gila River. We grew those crops
and our family and other Apaches ate them. That was before the massive
pumping started in the Upper Valleys and the San Simone River Valley.
The San Simone River doesn't even run any more. Pumping which only
began in the 1950s dried it up. The U.S.G.S. took out the gage just a
few years ago. All this will be made worse by the GRIC Settlement.
In settlement discussions which have occurred periodically since
the mid 1970s, we have been trying to get only the water which we
historically used to farm 8,600 acres and the water for the 1,000 acres
under the Globe Equity Decree. No matter what the number would be in a
settlement, one or a million, we cannot receive it unless the parties
upstream obey the law and respect our rights.
We certainly don't need more paper unless that paper somehow is
respected. We need a fair share of the water which is being diverted
upstream. We need to receive the C.A.P. water that we have been
entitled to since 1980. We need to receive the water and C.A.P. funding
that we are entitled to under our 1992 Settlement. Our C.A.P. water
price should be reasonable. We should get a fair share of the Basin
Project Fund and revenues--including a fair share of the power revenues
to pay our OM&R for C.A.P. Unlike GRIC and SCIDD, we do not have a
C.A.P. canal running through our land to bring Colorado River water
under the C.A.P. No one can make us whole by replacing our water with
anything downstream. If the Gila River does not flow, we have no way to
get water for the 1,500,000 acres of our Reservation in the Gila
Valley.
We Apaches have a Treaty that was approved by the President and
this Senate in 1852. It says that the United States will protect our
land, act in good faith, legislate for our happiness and well being. We
know how weary you must be hearing the horrors and difficulties that
Tribes have suffered. We are weary of suffering them.
I see that the elected leaders of the White Mountain Apache Tribe,
the Yavapai-Apache Nation and the Tonto Apache Tribe are here. If they
had been allowed to testify, I am confident that each would say ``We
have kept our word to the United States. We believe the word of a great
nation never gets `too old to keep.' '' Still we wait and expect each
day that the law of this Nation will be kept and honored and enforced,
We respectfully ask your protection and assistance here. This
legislation and the agreements it authorizes, ratifies, and confirms
unlawful conduct and violations of the Globe Equity Decree and Arizona
and New Mexico law. It adversely affects the Gila River and Bonita
Creek and Eagle Creek on our Reservation, and other tributaries
upstream from us. It adversely impacts the chance that our C.A.P.
project and those of other C.A.P. Tribes, such as the Yavapai-Apache
Nation and Tonto Apache Tribe will ever be built. This legislation will
also adversely impact the cost and reliability of C.A.P. water for all
Arizona C.A.P. Tribes, except for GRIC.
Titles I and II should not be adopted by this Senate as introduced.
If Congress had been asked to authorize, ratify, and confirm by means
of legislation a settlement agreement that would result in this level
of unprecedented damage to a people and the environment, as well as
vested property rights for anywhere else in the country, Congress would
not consider such legislation--even for a moment. We ask that Congress
not enact such legislation now. We ask only for fairness and equity.
More than that--no one is entitled to. Less than that cannot be
tolerated by this body.
Thank you again for hearing these words on behalf of the San Carlos
Apache Tribe. We ask for these comments and a copy of the Summary of
Elements Needed for the Settlement of the Resources of the San Carlos
Apache Tribe and Its Reservation be made part of the record, and that
we be allowed to supplement the record in response to statements by
others which are made part of the record.
Respectfully submitted this 30th day of September 2003.
______
Summary of Elements Needed for the Settlement and Protection of the
Resources of the San Carlos Apache Tribe and Its Reservation Within the
Upper Gila Subwatershed--Arizona
1. A permanent Minimum Pool of not less than 75,000 acre feet of
water stored on the San Carlos Apache Reservation in San Carlos Lake
behind Coolidge Dam, which does not spill, and is reliably supplemented
to replace losses related to evaporation and seepage for the protection
of fish, wildlife, cultural resources, public health, safety and
recreation, and reimbursement for the water purchased by or for the
Tribe which has previously been expanded to establish and maintain a
Minimum Pool.
2. 48,000 acre feet of water from the mainstem of the Gila River
with an ``immemorial'' priority date. This represents 4.5 acre feet of
water for 9,600 acre feet of historically irrigated lands on the
Reservation and 1,000 acres of land under Globe Equity No. 59 and
thirty-three percent (33%) of the storage rights for the water on San
Carlos Lalce, after deducting the Minimum Pool.
3. The right to divert, store and consumptively use all
groundwater, tributary water and effluent water on the Reservation.
4. The Central Arizona Project (``CAP'') Contract between the
United States and the San Carlos Apache Tribe dated December 11, 1980,
as amended, for water previously allocated to the Tribe to be made
permanent; the priority and reliability of the water in that CAP
Contract to be preserved and enforced; the delivery of CAP water by
exchange under the Contract confirmed as mandatory, subject only to the
available CAP supply and the Tribe's present CAP Contract priority;
equitable funding for the infrastructure to exchange, deliver and
distribute all Apache Tribal CAP water be made mandatory from the Lower
Colorado River Basin Development Fund, and an equitable share of all
other CAP appropriations for the Tribe's CAP project, design and
construction; and the Tribe's CAP Water be delivered to its head gates
at the ``postage stamp'' electrical rate under CAP; waiver of any
remaining capital debt related to CAP or Leavitt Act of July 1, 1932,
47 Stat. 564, 25 U.S.C. 386a.
5. Confirmation that certain lands within the Reservation,
including the bed of the San Carlos Lalce subject to a flowage easement
for SCIP only, are held in trust by the United States for the benefit
of the Tribe; together with capital funding to relocate the fences to
show the correct legal boundary as reflected in Map 388 titled
``Sketch, of Eastern Portion of White Mountain Indian Reservation, A.T.
1874'', National Archives Record Group 75.7.2 dated 1874 and the
Executive Order of President U.S. Grant dated July 21, 1874.
6. A capital trust fund for planning, design, development,
training, education, equipment and start up initial operation costs for
15,600 acres of irrigated agriculture on the Reservation.
7. A capital trust fund to construct basic transmission and
distribution systems for water, sewage, electricity, telephone services
on the Reservation.
8. A full accounting and compensation for all of the electricity
generated, and revenue and other consideration received by the United
States related to the generators located in Coolidge Dam; fair
compensation for the value of power production of the Coolidge Dam site
and for failure of BIA to deliver 2 mil power to the Tribe for
irrigation, school, and agency purposes pursuant to Seventieth
Congress, Session I, Ch. 1371928, section 10(e) of the Federal Water
Power Act and section 5 of Regulation 14 of the Federal Power
Commission; and 45 Stat. 210, 211; 43 U.S.C. Sec. 1543(d)(2); and 16
U.S.C. 791, et seq.; see also 105 Stat. 1722, 1730 (December 12, 1991).
9. A full accounting for all revenue and all other consideration
received by the United States pursuant to 27 Stat. 469 (February 20,
1893) and 29 Stat. 321, 358-60 (June 10, 1896); and fair compensation
to the Tribe.
10. Compensation for the loss of the use of our historically
irrigated Tribal farm, and salt damage to our farm land, along the Gila
River.
11. Cultural Resources and Tribal graves protection trust fund to
recover, stabilize and protect our graves, cemeteries and cultural
sites around San Carlos Lake exposed to erosion, desecration and
looting us a result of BIA construction and operation of Coolidge Dam.
Senator Murkowski. And I appreciate your testimony along
with that of the other panel members, and we do recognize the
contributions that all of you have made in order to get here.
It is difficult to keep within the time parameters, but in
fairness to the remaining panel members it is important that we
stick with it.
At this point in time I would like to take the opportunity
for a few questions. Governor Narcia, the Gila River originates
in New Mexico, obviously an important source of water for that
State. Can you explain the steps that you have taken to
coordinate this settlement with the rights and claims the State
can assert under existing law?
Mr. Narcia. Madam Chair, the answer to your question
involves three components--is this on?
Senator Murkowski. I think you are on, yes.
Mr. Narcia. First, have settlements been reached between
Arizona and New Mexico interests with respect to the interstate
components of the settlement framework? The answer to this
question is yes, definitely. As you are aware, New Mexico water
users are implicated in the Globe Equity '59 enforcement
proceedings in Federal court. The community has reached an
agreement that incorporates Verdant Valley water users into our
efforts to settle that litigation.
Secondly, with respect to the exchange required by the 1968
act, the community has engaged with appropriate Arizona and New
Mexico parties in a diligent effort to address all the concerns
and objectives raised by the State of New Mexico.
Finally, let me take this opportunity to assure both
committees that if any unanticipated interstate issues should
arise, I have directed individuals representing the community
to give these matters their full and immediate attention and
resolution.
Senator Murkowski. Thank you. I appreciate that.
We have heard from the administration's reference to the
Secretary of the Interior's Water 2025 initiative. Do you
believe that this settlement is consistent with that water
initiative?
Mr. Narcia. Yes, yes, we do. We recognize that Arizona
includes large areas designated by the Secretary as areas where
water conflict is either substantially or highly likely to
occur by 2025. We believe that the components of our settlement
can and will be held up as an example of the framework that
potential water conflicts, by using each of the six principles
articulated by the Secretary. I will address one of the
principles in my testimony and provide written testimony
concerning the other five if that is acceptable to the
chairperson.
The third principle involves maximizing the water use
efficiency. The settlement does this in two important ways.
First, it builds upon Arizona's longstanding effort to treat
groundwater as a finite resource and to instead emphasize the
use of renewable surface water supplies. Under this settlement
both communities and other parties are required to constrain
their groundwater use.
Second, the settlement looks at every opportunity to
maximize the use, to help the community to achieve its water
budget. In some instances we have reached effluent exchange
agreements with our neighboring communities to achieve this
objective. In my written submission I look forward to providing
more detail on how this settlement is consistent with other--
with each of the other principles.
Senator Murkowski. Thank you, Governor Narcia.
Ms. Kitcheyan, your comments make it very clear that the
San Carlos Apache Tribe is not there yet. They oppose the
settlement. We heard from the administration before this panel
suggesting that it is very important to the settlement that the
San Carlos Apache Tribe settlement be included as part of this.
Do you see any area in the middle, any way that it can be
included as part of this settlement?
Ms. Kitcheyan. The San Carlos Apaches have been acting and
negotiating in good faith with the Department. We will continue
to do so. But I will be forthright and let you know that I do
not know if we can settle it in the near future. I hope so. But
you know, a part of this depends on what San Carlos Apaches can
get as well.
Senator Murkowski. Thank you.
Senator Bingaman.
Senator Bingaman. Thank you very much.
Let me ask President Shirley from the Navajo Nation a
couple of questions here. You mentioned that the Bureau of
Reclamation is currently studying potential water supplies for
Navajo communities in the Little Colorado River Basin,
including the use of water from the Blue Ridge Reservoir. Do
you know anything about the time frame for completing that
study, and will that provide recommendations for addressing the
water supply needs that the Navajo Nation has in this basin?
Mr. Shirley. Thank you, Senator Bingaman. I will go ahead
and have our water rights attorney, Mr. Sandy Pollack, to help
me answer that question. But the contractor's work is done,
Senator Bingaman, but the Reclamation believes that the work
was not adequate and has formed a technical working group to
revise the report. The settlement negotiations are not expected
to resume by the final report.
Sandy.
Mr. Pollack. Thank you, Mr. President.
Senator Bingaman, I think that President Shirley really
outlined it for you. That study has actually been completed.
The Bureau of Reclamation is trying to revise the report.
Apparently it didn't address all the concerns Senator Kyl had
directed in authorizing that particular study to be done. The
important point about that study is that settlement
negotiations on the Little Colorado adjudication are really
predicated on receiving that report, and we just simply cannot
move forward with addressing our issues in Arizona until that
report is done.
Senator Bingaman. Okay. Let me also ask, President Shirley:
I believe you stated in your testimony that it is critical from
the Navajo perspective that Window Rock be served by the
Navajo-Gallup Project so that that project would be part of
what you would be asking authorization for when you present us
with possible legislation this next year. Is that the correct
understanding of that?
Mr. Shirley. Yes, I believe you have the correct
understanding, Senator Bingaman. It is very important. Some of
these things happen only one at a time and at very strategic
times, and this is such a case with the Navajo-Gallup water
line project. If we cannot do it now, bringing water to Window
Rock, I do not know if there is going to be another opportunity
to do so. So it is very critical that Window Rock is included
in the Gallup, the Navajo water line project at this point in
time.
Senator Bingaman. The other piece of this which makes you
so concerned about this bill as it currently stands is you need
an allocation of CAP water in order to meet this demand, meet
these water needs there in Window Rock, as I understand it?
Mr. Shirley. Exactly, that is very true. We need 6400 acre-
feet of water from the CAP water at the current time to make
the Gallup water line project work. If this legislation that is
before us is going the tie the hands of the Secretary to
allocate additional water, we cannot get at that water, and we
need that water.
Senator Bingaman. That is the basis for your objection to
this 104(b), section 104(b), where it says the reallocation of
agricultural priority water under subparagraph (a) shall be
subject to the condition that first, before the Secretary may
reallocate the water to any Arizona Indian tribe--that would
include you--Congress would have to enact a law approving an
Indian water rights settlement for that Arizona Indian tribe
that provides for the reallocation.
Essentially, we would be legislating here a prohibition on
the Secretary doing what you believe the Secretary needs to do
in order to meet your needs?
Mr. Shirley. Exactly.
Senator Bingaman. Let me ask one or two other questions if
I could here. Governor Narcia, in your view is it absolutely
essential that Colorado River Lower Basin Development Fund be
used as the source of funding to implement this bill?
Mr. Narcia. Senator Bingaman, the specific process for
funding this settlement is absolutely, absolutely fundamental
to our settlement. Without it, our settlement simply will not
work. First, obviously we can give up our claims in exchange
for sufficient water and a revenue stream that vests
immediately and that is guaranteed. Secondly, the funding
mechanism is also an important component, ensuring that Central
Arizona Project portions of this legislation in title 1 will
operate as intended.
Third and perhaps most importantly, the funding mechanism
of this bill is the strongest possible affirmation that the
Federal Government is serious about reaching a fair and binding
settlement with every Arizona Indian tribe that is willing to
negotiate in good faith. For the first time, the United States
will be able to negotiate with Indian tribes in Arizona knowing
that if they are able to reach a settlement they will have the
revenue, a certain quantity of CAP water, and the resources to
guarantee that the operations, maintenance, and the replacement
costs associated with that water can be paid for both for this
generation and the next generation to come.
Senator Bingaman. Let me ask one additional question,
Governor Narcia. The State Engineer, John D'Antonio, is going
to testify in the next panel. He indicates in his testimony
that New Mexico is working cooperatively with your community,
the Gila River Indian Community, to develop an agreement where
the community could serve as the exchange partner, so that New
Mexico could actually go forward and begin to use that 18,000
acre-feet that was reserved for New Mexico in the '68
legislation. Is that an accurate representation of the
situation as you see it?
Mr. Narcia. I believe you are correct. We have been working
very extensively with the State of New Mexico. Our negotiators
have met with Governor Richardson and Mr. D'Antonio and his
staff and we are working very hard to resolve the issues that
we have been dealing with, and I think that would be an
accurate statement, Senator.
Senator Bingaman. Okay. Thank you very much, Madam Chair.
Senator Murkowski. Senator Kyl.
Senator Kyl. Thank you.
If any of the panelists would like to respond to what I
say, they are welcome to do so. I simply want to thank all of
you for being here and for testifying. It is evident from the
testimony of at least two of the witnesses here that this is an
extraordinarily important settlement for their future. With
regard to the Navajo Nation, President Shirley and I have
talked about this and it is my very fervent hope that, using
the funds and water available that would be created by this
settlement, we can move forward quickly to resolve the claims
of the Navajo Tribe and also develop the projects necessary the
satisfy in a real way the claims that the Navajo have.
It is complicated by the fact that we are dealing with an
upper basin and a lower basin and a New Mexico and an Arizona
component. But I think that President Shirley is absolutely
right that one of the first things the Navajo need is to get a
water supply to Window Rock. So there is no disagreement among
us, I think, about what needs to be done. It is a matter of
timing and calibrating all of this so that we can get it done
in the appropriate way, and I pledge to continue to work with
you, President Shirley, and appreciate the remarks that you
made.
To Chairwoman Kitcheyan, first let me say you could have
said much more and your long statement reflects much more that
is worth reading. The U.S. Government did not treat the San
Carlos Apache Tribe well and there are many things that you
could have said about that. And that is part of the backdrop of
this hearing today. It is part of the reason why, on behalf of
your people, I know that you have to be very careful about
negotiations and making concessions that you think are
inappropriate under all of these circumstances.
I also want to say that the things you said about what is
really important to the San Carlos Apache people I know, I have
witnessed. There is no group in the country that has greater
pride in the service of its young men and women in our military
than the San Carlos Apache Tribe. I was honored to be grand
marshal of the parade.
By the way, it rained on the day that I was there. So maybe
you want to think--maybe I should come back again.
So I note the difficulty that these issues have presented.
You have very competent legal advice from your counsel. You are
committed to doing the right thing on behalf of the San Carlos
Apache Tribe. You have recognized the difficulty and told us of
that. It is just my hope that as we move forward we can
continue to negotiate and that we will find a way to satisfy
the requirements of the San Carlos Apache Tribe and treat the
tribe in a way that is fair and equitable and also get an
agreement in time actually to be included within this overall
settlement. If we can do that, I think it will be to the
advantage of everyone. But it cannot be done unless you are
satisfied that it is fair and we recognize that.
I again thank all of you for being here. Governor Narcia
has been--I do not know how many meetings we have attended
together, but it takes a huge amount of effort to get these
settlements done and I just appreciate everybody that is on the
panel, but also all of the people behind you who have spent so
many hours working on this as well.
Thank you, Madam Chairman.
Ms. Kitcheyan. Madam Chair, may I please say something?
Senator Murkowski. Yes, please.
Ms. Kitcheyan. I want to say thank you to Senator Kyl and
also for the comments that you made. But you know, it is
important to everyone's future, not just to two tribes. And
next time you meet with Governor Narcia, please take me along.
Thank you.
[Laughter.]
Senator Murkowski. I thank you all. I thank you for your
representation here today on behalf of your tribes, your
community, your nation, and appreciate the testimony from all
of you.
Thank you.
Mr. Narcia. Thank you.
Mr. Shirley. Thank you.
Senator Murkowski. We now move to our third and final
panel, representing the two States who have interests in the
legislation before us: Mr. Herb Guenther of the Arizona
Department of Water Resources and Mr. John D'Antonio, the New
Mexico State Engineer.
Gentlemen, good morning. Welcome to the committee. Mr.
Guenther, I recognize you from our previous lives, I think. I
was looking at you trying to figure out where it was, but State
legislatures.
Mr. Guenther. Yes, Madam Chairman, that is correct. The
Council of State Governments.
Senator Murkowski. That is right, that is right. It is nice
to see you here today. That is right. Good to see you.
All right, if we can proceed then with you first, Mr.
Guenther, with the Arizona Department of Water Resources.
STATEMENT OF HERBERT R. GUENTHER, DIRECTOR, ARIZONA DEPARTMENT
OF WATER RESOURCES, PHOENIX, AZ
Mr. Guenther. Thank you, Madam Chairman and Senator
Bingaman and Senator Kyl. I am here, of course, on behalf of
Governor Janet Napolitano, who would have also liked to have
been here, but was unable to do so today. I will ask that her
comments be inserted into the record in full.
Senator Murkowski. They shall.
Mr. Guenther. This obviously is a momentous occasion. You
have heard all of the importance that this particular agreement
brings to the Southwest and especially to Arizona. There also
are parts that are still growing and are developing as we
speak. The State of Arizona is very supportive of this
settlement in all its aspects, including those which are still
developing.
While some have said it is 14 years in the making, I know
that some who have been instrumental in this settlement
agreement have been working on it their entire lives. In excess
of 30 years of adult life have been invested in portions of
this settlement.
Certainly by the sheer number of participants in this
settlement it is a very precarious and delicate balance that we
seek to maintain, if you will a house of cards that is in a
very delicate position. It has so many working parts that when
you touch one its impacts can reach many.
One of the major benefits that we see in Arizona is the
ability to a stipulated settlement of some very longstanding
litigation, certainly a benefit from the timeline of our
biological time scale that we all are faced with as humans.
Other aspects of this settlement that make it extremely
important to Arizona is the surety it provides, the
predictability with regard to Gila River resources, the ability
to bring those resources back within some modicum of reality,
as well as the reliability that those resources will provide
both to the tribes in the settlement and the many cities and
water companies that also participate in the settlement.
I think the realism of this particular settlement has yet
to reach full understanding. While there are outstanding issues
we will continue to work toward, there are hordes of benefits
to entities that have chose to be combatants for years and
years and I think now will have the opportunity the sit side by
side and enjoy the privileges that this settlement will afford.
With that, Madam Chair, I think I will reserve sufficient
time for questions that might be pressing. We will continue to
work with the Navajo Nation, we will continue to work with the
San Carlos Apache, and we will continue to work with the State
of New Mexico toward resolution of their issues as it relates
to the 1968 right to the Central Arizona Project.
I thank you.
[The prepared statement of Governor Napolitano follows:]
Prepared Statement of Hon. Janet Napolitano, Governor, State of Arizona
Chairman Murkowski, Chairman Campbell, and members of the
committees, good morning, and thank you for the opportunity to present
the views of the State of Arizona on S. 437, the Arizona Water
Settlements Act of 2003.
It is now time for Congress to confirm the agreements reached after
many years of intense negotiations and compromise. With passage of S.
437, and implementation of the settlements, Arizona will embark on a
new age of water resource planning, usage, and cooperation.
The legislation encompasses multiple Titles to resolve many
longstanding water disputes in Arizona. Additionally, it provides
benefits to New Mexico. Each Title addresses a particular settlement
agreement, and provides the congressional authorization and funding
needed to implement the settlement. Many times in the past, Congress
has been faced with enacting legislation to authorize settlements that
have not been finalized. I am pleased to inform the Committee members
that the three settlement agreements to be ``authorized, ratified, and
confirmed'' by act of Congress have been executed by the State of
Arizona, the tribes, and nearly all of the non-Indian parties, except
the Secretary of the Interior. The Secretary requires congressional
authorization prior to signing the settlements. There is no question
that the parties intend to settle the issues, and in fact many of the
parties are carrying out their government functions as if the
settlements were already final.
This legislation is vitally important to the future of Arizona, in
economic terms, in meeting water management goals, and in furthering
our relations with our tribal citizens. S. 437 will provide the
mechanisms to resolve two major tribal water settlements immediately,
and will provide the United States and non-Indian parties additional
tools to resolve water rights claims of other Arizona tribes. It
establishes a means for acquiring water and funding for future tribal
water rights settlements.
Let me provide some highlights of each Title and why each is so
important to all the people of Arizona.
title i: central arizona project settlement
Since statehood in 1912, Arizonans have dreamed of bringing
Colorado River water to the cities and farms of central Arizona. It was
the great Senator Carl Hayden's dream. The recently deceased John
Rhodes, former House minority leader, claimed passage of legislation to
authorize the Central Arizona Project (CAP) as his greatest achievement
in his 30 years in Congress. The CAP authorization became a reality in
1968 and by 1985 the CAP was delivering Colorado River water to farms
and communities, as a replacement for groundwater. It continues to be
our lifeblood, allowing many Arizonans to weather the drought
conditions of eight of the last nine years. We continue to enhance the
use of CAP, and this legislation furthers the State's water management
goals utilizing the CAP.
Title I is consistent with and in furtherance of the intent of the
stipulated settlement approved by the U.S. District Court of the
litigation between the United States and the Central Arizona Water
Conservation District (CAWCD) over the amount of repayment for the CAP.
This Title also resolves other non-contract issues between the United
States and the non-Indian CAP water users. Further, Title I provides
the means to acquire the water supplies and funding necessary for the
settlements in the other Titles of S. 437, and for future tribal water
settlements.
Final division of the Colorado River water for the CAP between the
state users and the federal users is important to the State. With this
legislation, approximately 47% of the CAP will be dedicated for use by
Arizona Indian tribes. The rest has been or will be allocated among the
many Arizona non-Indian municipal, industrial, and agricultural users.
As part of Title I, 65,647 acre-feet of CAP high priority rights will
be reallocated to Arizona cities, towns, and water companies for
municipal and industrial use. This reallocation has been pending for
years after an extensive public process by the Arizona Department of
Water Resources.
To acquire water for tribal water settlements, Title I provides a
mechanism for agricultural interests to relinquish their CAP
subcontracts in return for debt relief from section 9(d) of the
Reclamation Project Act of 1939 totaling $158 million (shared by the
federal government and state interests). Additionally, Title I provides
for waivers of water rights claims by certain Indian tribes, and
regulatory relief from the Reclamation Reform Act (RRA). It is
important to the State that the water for tribal settlements, over and
above that contributed by the parties, be acquired water from willing
rightholders and not water taken by the federal government. Early
tribal settlements were based on this concept, but in the 1990s the
Secretary and Congress allocated water for settlements despite concerns
raised by the State. We hope that the provisions of Title I can be a
precedent for settlements throughout the country.
The 1982 Reclamation Reform Act (RRA) has prevented the State from
making full use of the CAP, which was designed to replace existing
groundwater use for agriculture. Some lands are not eligible to receive
CAP water due to RRA and are instead still irrigated with groundwater.
Additionally, the administrative costs of implementing RRA in Arizona
outweigh any perceived benefits to the government. The relinquishing
districts would then be able to purchase CAP water over the next 30
years from year-to-year agriculture pools at an affordable price. RRA
relief for the agricultural districts within the CAP service area, as
provided in Title I, furthers implementation of the Arizona Groundwater
Code, and our effort to preserve our depleted groundwater supply for
future generations.
The water acquired pursuant to the CAP agricultural subcontract
relinquishments will be used in the water budgets for the Gila River
Indian Community settlement in Title II, for the Tohono O'odham Nation
settlement amendments in Title III, and provide the Secretary of the
Interior with additional water for future Arizona tribal water
settlements, for a total of 197,500 acre-feet of water. Up to an
additional 96,295 acre-feet will be provided for the State to hold in
trust for a period of time and then reallocate to municipal and
industrial water users in Arizona.
Title I also authorizes an agreement between Arizona and the
Secretary to share in the ``firming'' of 60,648 acre-feet of the tribal
CAP water to make it a more reliable water source for tribes to use for
municipal and industrial purposes. Firming is the process of storing
water underground today to be used when the dedicated surface water
supply is lacking due to shortages. The State is obligated to firm
15,000 acre-feet for the Gila River Indian Community Water Rights
Settlement, and another 8,724 acre-feet for future Arizona Indian
tribal settlements. Through the Arizona Water Banking Authority we have
begun a process to identify the best ways to meet this obligation, and
to examine whether additional state law authorizations are needed, as
well as funding options.
Arizona has been concerned in the past about proposals to market
water out of state, in derogation of the Law of the River, the Indian
non-intercourse acts, and other applicable laws. The Law of the River
includes several U.S. Supreme Court decisions, two multi-state
compacts, and numerous acts of Congress concerning the use of the
Colorado River. We believe that uses of the Colorado River must be
consistent with this body of law.
Title I clearly prohibits the direct or indirect marketing of CAP
outside the boundaries of the State of Arizona. However, it would not
impact the existing interstate banking agreements with California and
Nevada through the Arizona Water Banking Authority. Nor would it affect
any exchange necessary for the New Mexico Unit of the CAP as authorized
in 1968. The State has been negotiating with the State of New Mexico
over proposed changes to confirm that New Mexico can develop the CAP
New Mexico Unit as envisioned in the 1968 Act.
Funding of tribal water settlements has been a problem in the past.
Tribes are asked to give up potential large paper water rights in
return for a reasonable water budget and the ability to make use of the
water. Use of water involves development funds for on-reservation
projects. As you know, the appropriations process is difficult and may
continue to be so in the future.
Title I outlines the intended uses for the Lower Colorado River
Basin Fund (Fund) over the next 40 years. The Fund consists of payments
by the non-Indian CAP water users and power revenues of the CAP. These
sources will continue to flow into the Fund until the CAP is fully
repaid. Under Title I, the revenues in the Fund are redirected to be
used to reduce the cost of delivery of water to tribal water users, to
finance current and future tribal water settlements and to finance CAP
distribution systems on tribal lands. It is important to note that this
funding is for the long-range water and economic development needs of
Indian tribes.
Other issues resolved in Title I include clarifying that CAP
contracts, whether tribal or non-Indian, are for permanent service
within the meaning of the Boulder Canyon Project Act and for a term of
service of 100 years. It also resolves the long-standing dispute
between the Secretary and CAWCD about how shortages will be shared by
users of the CAP.
The provisions of Title I have been memorialized in the Arizona
Water Settlement Agreement (Agreement), among the CAWCD, the Director
of the Arizona Department of Water Resources, and the Secretary of the
Interior. CAWCD and the Director signed the Agreement last year, but
the Secretary will need to complete the National Environmental Policy
Act process before signing. Finishing the Agreement will further the
stipulated settlement of the repayment litigation in U.S. District
Court, which could not be completed without passage of S. 437.
title ii: gila river indian community water rights settlement
Coronado visited the Pima Indians of what is now central Arizona in
1540. There the conquistador bought grains from lush tribal fields
along the Gila River. The current Gila River Indian Community
(Community), made up of two tribes, the Pima and the Maricopa, are the
descendents of those Indians visited so long ago by Spanish explorers
and missionaries. These tribes assisted the U.S. Cavalry in the Indian
wars, sold grain to American settlers, and its members have volunteered
to serve in many overseas conflicts. One such member was Ira Hayes who
helped raise the United States flag over Iwo Jima.
With a history of farming they have fought in the courts for
decades for their water rights. Over the last two decades negotiations
have been held. In the last year we finally succeeded in reaching a
settlement. Title II would authorize the Secretary to sign the Gila
River Indian Community Water Rights Settlement and provide the ways and
means needed to make it a reality.
The State participated in this settlement in many roles, that of
facilitator, water rights holder, and protector of state policies and
interests. Additionally, the State attempted to make the settlement
acceptable for small water users unable to represent themselves in the
negotiations. After enactment of the congressional settlement
legislation, Arizona must address and enact changes to Arizona law
consistent with the settlement to bind all citizens to the settlement,
now and in the future. A State does not commit lightly to changing its
laws, but in this case it will not only address issues presented by the
settlement, but also serve the water management goals of the State. To
this end the Arizona Department of Water Resources, the Arizona Game
and Fish Commission and the Arizona State Land Department represented
the State in negotiations. I will outline the State's policy
considerations.
A major goal of any Indian water rights settlement is finality.
Title II confirms an overall final water budget for the Gila River
Indian Community and provides strict accounting of that budget, funding
to allow utilization of the water, and broad waivers of claims by the
Community and the United States as trustee to pending and future court
claims to water rights.
In the General Stream Adjudication of the Gila River and its
sources, the Community and the United States claim between 1.5 million
and 2 million acre-feet of water from all sources. The Gila River
bisects the Community, which has proven uses of Gila River and
groundwater since before recorded history. It is not a matter of
whether the Community is entitled to water; it is a question of how
much.
In the settlement, the Community has agreed to an overall water
budget of 653,500 acre-feet annually, calculated on a rolling average
over 10 years. The sources of the water are Gila River water, Salt/
Verde River water, groundwater, exchanged reclaimed water, and Central
Arizona Project (CAP) water. Well over one-half of the proposed water
budget is currently under the legal control of the Community. It has a
CAP contract for 173,100 acre-feet, a time-immemorial right to over
200,000 acre-feet Gila River water under the Globe Equity decree
(125,000 acre-feet of reliable water in the tribal water budget), 5,900
acre-feet of Salt/Verde River water under the Haggard Decree, and the
sovereign right to pump their own groundwater outside of State
regulation. Part of this settlement is recognition of rights already
held and used by the Community, with methods to improve those existing
uses. Attached to my statement is an outline of the Community
settlement water budget.
The primary source of additional water for the Community's water
budget is CAP, with some contributed Salt/Verde River water and
exchanged reclaimed water. Some parties contribute CAP water, but the
largest block is from the CAP subcontract relinquishment pool
established under Title I, approximately 102,000 acre-feet of lower
priority water used for agriculture. The final piece to the water
budget came from creative thinking by the Phoenix area cities. The
cities of Mesa and Chandler will exchange highly treated reclaimed
water with the Community for Community CAP water on a 5 to 4 ratio.
This creative thinking solves several water management issues and
benefits Indians and non-Indians. In fact, the two cities have already
entered into the agreements necessary to make the exchange, beginning
the construction process prior to enactment of this legislation. The
Community and the United States are prohibited from seeking water above
the proposed water budget.
In exchange for this water budget and funding to make use of the
budget, the Community and the United States are granting broad waivers
to all the citizens of Arizona of past, present, and future court
actions on water rights, subject to some retention of rights to enforce
the benefits of the settlement. Arizona insisted that this be a final
settlement of the Community's claims to water.
A benefit to settlements is to make partners out of combatants. An
example of this, to be confirmed in the settlement, is the relationship
between the Gila River Indian Community and the San Carlos Irrigation
and Drainage District (SCIDD). SCIDD and the Community share in the San
Carlos Indian Irrigation Project run by the Bureau of Indian Affairs.
Sharing water of a project operated by an under-funded federal agency
has strained the relationship. Through the settlement, SCIDD and the
Community will enter into a new relationship, dividing the project
features and taking over responsibility for operating their own
systems. The settlement also provides funding to rehabilitate the
existing unlined system to make better use of limited water supplies.
SCIDD and the Community now share common goals and work together as a
team. This is but one example of how this settlement is making
neighbors out of antagonists.
I will, at this point, list the parties to separate agreements
(settlement, exchange, lease, or otherwise) that are part of the
overall Community settlement confirmed by S. 437. The parties are:
The Salt River Project;
Phelps Dodge Corporation;
The irrigation districts and many towns and cities in the
Upper Gila River Valley and the San Pedro River, including New
Mexico rightholders;
Arlington Canal Company and the Buckeye Irrigation Company;
Maricopa-Stanfield Irrigation and Drainage District;
Central Arizona Irrigation and Drainage District;
San Carlos Irrigation and Drainage District;
The Cities of Mesa and Chandler;
Arizona Game and Fish Commission;
Phoenix area cities with leasing arrangements.
Some of these separate agreements further the water management
goals of the State. For example, the ability of various cities to lease
high-priority CAP water from the Community for 100 years is important
in meeting Assured Water Supply requirements under state law for new
subdivisions. The reclaimed water exchange agreements between the
cities and the Community provide the Community with a reliable source
of water for agriculture, and assist the cities in making full reuse of
treated effluent.
The Upper Gila Valley settlements provide many benefits. Not only
do the settlements end long-standing contentious litigation before the
Globe Equity Court, between the large irrigation districts and the
Community, but also provide a basis for future settlements. The
irrigation districts have agreed to permanently reduce irrigation
acreage for the benefit of the Community, and if there were a future
settlement with the San Carlos Apaches, the districts would permanently
reduce additional irrigation acreage. The irrigation districts have
also agreed to a cap on combined diversions and groundwater pumping;
real reductions in water use, to the benefit of the river's health, the
Community, and the San Carlos Apache Tribe.
In past Indian settlements, States have been asked to make
financial contributions to settlements. In previous Arizona Indian
tribal water settlements, the State has provided an appropriation to
the tribal development fund. The State's contribution to the Community
settlement is structured differently. First, the State believes that
the CAP water that is being relinquished is a state contribution. It
was originally part of the non-Indian allocations of the CAP. We have
agreed to this division of water in Title I and urge its use for the
Community's settlement. The financial aspect for the State in this
settlement may be large as time goes by, but it does not include any
contribution to the Community development. Instead the State has agreed
to firm up to 15,000 acre-feet of low priority CAP water. Title I
outlines this commitment but leaves the details to a future agreement
with the Secretary about firming of tribal supplies through the Arizona
Water Banking Authority we are in the process of analyzing how this
will be accomplished. It may involve millions of dollars to bank an
amount necessary to firm the water to municipal and industrial delivery
priority.
One of the separate agreements involves protection of groundwater
in the areas south of the Gila River Indian Reservation. By changes to
state law, the State will limit the use of groundwater in specific
areas adjacent to the reservation to help protect tribal groundwater.
To further ensure that the restrictions benefit the aquifer for the
Community, the State will authorize and supply a water replenishment
bank. The settlement outlines the goals of the replenishment bank but
leaves implementation up to the Arizona Legislature. By enacting state
legislation we will bind all future water users in that protected area
to the settlement. This replenishment bank may involve millions of
dollars.
Water uses in other areas within the Gila watershed are also of
concern to the Community, including groundwater users along the San
Pedro River and the Upper Gila River. The water budget makes
assumptions about the present flow of the Gila and San Pedro rivers.
The State has proposed that present uses on those streams should be
allowed to continue and the Community has agreed. The settlement
proposes a ``safe harbor'' provision for these current uses that the
Community, SCIDD and the United States would not challenge. To limit
future uses, the State has agreed to propose changes in state law that
prohibit the construction of new dams and the development of new
irrigation uses within the San Pedro River and the Upper Gila River
basins. When enacted the State assumes an ongoing enforcement
responsibility. At this time we do not have an estimate of this future
financial commitment.
To summarize: the State contributions involve several changes in
state law to accomplish the goals of the settlement; obligate the State
to ongoing enforcement provisions, and necessitate large underground
water storage expenditures for firming of tribal water and for the
replenishment bank.
This settlement encompasses many good things for many entities
within Arizona. I have touched only on those of particular importance
as State policy considerations. However, I must comment on one more
provision. In Title II, and in Title III, the legislation outlines
procedures for the Gila River Indian Community and the Tohono O'odham
Nation to have lands placed into trust.
It is important to remember that 28 percent of Arizona's total land
base consists of various Indian Reservations, with much more land held
in trust for benefit of tribes or individual Indians, or in fee by
tribes. We are proud of our tribal governments and have improved our
ability to work with them on a government-to-government basis,
especially on health, education, and gaming issues. However, there are
many consequences to state and local non-Indian authorities when lands
are added to reservations, or taken into trust. For many years the
State has taken the position that only Congress has the authority to
make new reservations or additions to existing reservations, pursuant
to congressional directives found in 25 U.S.C. 211. Some tribes and the
Secretary of the Interior disagree with our legal analysis. To
circumvent future litigation on this issue we, along with other Arizona
interests including the congressional delegation, have urged that the
settling tribes agree to a clarification of this issue concerning their
reservations.
Title II confirms that new additions to the reservation, or the
placing of lands into trust status for the benefit of the Community,
will only be accomplished by specific acts of Congress. Congress
enacted the Zuni Indian Tribe Water Settlement Act earlier this year
with similar provisions. We strongly support retention of this
provision in Title II, as well as in Title III.
In summary, the Gila River Indian Community Tribal Water Settlement
provides many benefits to all Arizonans, and the State has committed
itself to changes in state law and future use of resources to effect
the benefit of the settlement for the Community.
title iii: amendments to the southern arizona water rights
settlement act of 1982
In 1982, Congress enacted the Southern Arizona Water Rights
Settlement Act (SAWRSA) to resolve the tribal claims against non-Indian
water users in the Upper Santa Cruz Basin by the Tohono O'odham Nation
(Nation), then known as the Papago Tribe, pending in the case U.S. v.
Tucson. The 1982 SAWRSA called for a water budget of 66,000 acre-feet
of delivered water, a 10,000 acre-feet limit on groundwater pumping by
the Nation, a $15 million development trust fund, and a cooperative
fund to pay for the delivery of surface water.
Portions of the settlement have been completed, including the
construction of a major portion of the distribution system to use the
Nation's original CAP allocation. The Nation, the State, and the local
entities have performed their required tasks under the 1982 Act. This
included state entities' financial contributions of $5.25 million,
Tucson's contribution of 28,200 acre-feet of effluent and tribal
waivers of claims to water rights.
However, issues about the distribution of the tribal benefits arose
before final dismissal of U.S. v. Tucson. At the same time, questions
were raised about the source of a portion of the tribal water budget,
and opposition formed to the building of a new farm on unbroken desert
lands. Title III of S. 437 would amend the 1982 Act to address these
issues, provide a better method for dismissal of the pending lawsuits,
and modernize the authorized uses of water by the Nation to be more
consistent with those allowed under state law. It also confirms the
settlement agreement among the Nation, the State of Arizona, Asarco, an
international mining company, and Farmers Investments Companies (FICO).
I recently signed the settlement agreement, as have all parties except
the Secretary of the Interior, who is awaiting congressional
authorization.
To begin the more recent negotiations with all parties to the
settlement, an agreement was reached between the Nation and the Indian
allottees, whose allotment lands are within the basin, about the use of
the settlement benefits. It is a tribute to the tribal parties that
they have worked out internal differences, and now are ready to finish
the settlement. The State acted as a party to the final settlement and
facilitated the negotiations.
Title III clarifies all the issues that delayed implementation.
First, it identifies the source of the additional settlement water. The
Nation has an original CAP allocation of 37,800 acre-feet, but SAWRSA
provided for an additional 28,200 acre-feet of unidentified settlement
water. Under Title I of S. 437, CAP agricultural water is made
available to the Secretary for Indian water settlements, and it is from
this pool of relinquished contracts that the Nation will receive its
full settlement budget. Title I directs that the Secretary will have
the responsibility to firm the 28,200 acre-feet of settlement water.
The State offered up to $3 million in appropriations or services to
assist the Secretary in that obligation. It should be noted that the
State had already appropriated a contribution to the Cooperative Fund
as required under the 1982 Act, and this $3 million is an additional
contribution.
The settlement better defines the nature of the 10,000 acre-foot
limit on pumping rights. The 1982 congressional directive on the
limitation of pumping did not address whether this is a ``reserved''
pumping right or the equivalency of a state-based grandfathered pumping
right in an active management area. In return for clarifying that this
is not a reserved right the State has agreed to seek state law changes
to allow additional protection to the Nation's groundwater resource
from the effects of new wells around the reservation. Under this
legislative change, the State adds to its water management
responsibilities in the Tucson Active Management Area.
Each of the major parties, the City of Tucson, Asarco, and FICO,
have entered separate agreements with the Nation and the allottees to
further protect the groundwater resource of the reservation. This
includes a creative solution by Asarco to substitute tribal CAP water
for Asarco's industrial groundwater use through a storage arrangement.
Waivers and releases under the 1982 Act only provided for past and
present claims to water rights and injuries to water rights, while the
Title III amendments include future claims to water rights and injuries
to water rights with some defined exceptions to enable the parties to
enforce the settlement provisions.
In 1982, it was envisioned that the Bureau of Reclamation would
construct or rehabilitate three different farm units for the Nation.
Under Title III, a procedure is outlined to substitute a $18.3 million
development fund for one farm that would have been built on unspoiled
desert lauds. The $18.3 million is a present value substitute for a
project already authorized as part of a settlement and committed to
construction. Of the remaining commitment, one farm is already
completed, and the last farm rehabilitation and expansion project has
begun, both using CAP funding.
A procedure for dismissing the pending lawsuits is agreed upon in
the settlement agreement, and confirmed by Title III. It provides for
class action consolidation and dismissal of Indian allottee claims
based on the receipt of settlement benefits. There are over 3000
individual Indian allottees with land interests in the basin. The State
finds that this procedure gives greater certainty, binding not just the
present litigants but also their successors.
In summary, Title III provides better tools for dismissal of
pending lawsuits, a confirmed supply of settlement water for the
Nation, protection of tribal groundwater, creative uses of CAP water,
and legal certainty over issues not addressed in 1982, such as the
nature of the groundwater pumping right.
title iv: san carlos apache tribal water settlement
Unfortunately, at this time we do not have a San Carlos Apache
tribal water settlement. Congress approved a San Carlos Apache Tribe
water settlement of their claims to the Salt River watershed portion of
the reservation in 1992. Since that time, several discussions have been
about resolving the tribe's claims to the Gila River watershed portion
of the reservation. These issues are also being addressed in the
General Stream Adjudication of the Gila River and its source.
The State stands ready to assist in the negotiation of the San
Carlos Apache tribal claims to the Gila River when the Tribe and the
United States reach an understanding of the parameters of such a
settlement. It is possible that a settlement will be reached before
passage of S. 437. However, the State does not believe that the rest of
legislation should be delayed if Title IV cannot be completed.
Provisions have been made in Title II to maintain the rights of the
San Carlos Apache Tribe against the settling parties. The San Carlos
Apache Tribe expressed concerns to the State that the legislation and
the settlement agreement for the Gila River Indian Community hinder use
of their current water rights. They cite primarily the exchange
provisions in the Community's settlement, and the legislative changes
proposed by the State of New Mexico, both in Title II. Under the Globe
Equity decree of 1935 the Apaches were awarded a water right with an
1846 priority date to irrigate 1,000 acres along the Gila River. The
State fully supports maintaining the ability to use this right, and in
fact, would support proposals to enhance the ability of the Apaches to
make use of the 1846 right.
The State is optimistic that the Apache claims to the Gila will be
resolved in the not too distant future, either by settlement or in
Adjudication Court, but urges the Committee to move forward on S. 437,
with or without a new Apache settlement.
summary and conclusion
Before closing I would note that there are concerns that have been
raised by non-parties to the settlements. Most notably the Navajo
Nation, in its endeavor to quantify its water rights, has offered
comments. Their primary concern is that the Navajo Nation claims have
not been considered in this legislation. The State of Arizona is
currently negotiating with the Navajo Nation about its claims to the
mainstem Colorado River. It is our hope that a portion of the water
acquired pursuant to the relinquishments authorized in Title I will be
available for settling their claims.
Title I provides the final division of the Colorado River waters to
be delivered through the CAP, clarifies contractual relationships with
the United States, authorizes a shortage-sharing approach, and furthers
the intent of the stipulated settlement between Central Arizona Water
Conservation District and the United States on repayment of
construction costs of the CAP. Presently unallocated CAP water is
finally allocated or reallocated pursuant to public processes completed
many years ago. Finally, Title I provides a mechanism for
relinquishment of agricultural priority water to be used for Indian
water settlements, both present and future, along with a funding
mechanism for those settlements and for the delivery of CAP water to
Indian customers. The funding mechanisms proposed through the Lower
Colorado River Basin Fund may be unique, but they, are worthy of
congressional approval. These benefits accrue primarily to Arizona
Indian tribes and their future economic development.
Title II confirms the water rights settlement of the Gila River
Indian Community, ending long-standing judicial and cultural conflicts
concerning millions of acre-feet of water. It provides the Community
with a clear final water budget and the resources to utilize that water
in return for complete waivers and releases of water rights claims and
injuries to water rights. Many of the settlement's features enhance the
ability to conserve groundwater in central Arizona, including the
leasing of tribal CAP supplies to non-Indian users in Arizona. Title II
resolves potential legal disputes over how non-tribal lands gain trust
or reservation status by confirming that it is properly Congress' role
to determine if and how reservations are changed. The State has
committed to pursue changes in state law and to expend millions of
dollars to assure the Community more reliable water supplies and to
preserve groundwater on and around the reservation.
Title III provides means to finalize a settlement long overdue for
the Tohono O'odham Nation and the people of southern Arizona. It
modernizes the 1982 settlement, providing water use flexibility,
especially of CAP water. In seeking additional protections of tribal
groundwater, the settlement complements existing state water management
goals. The effort in amending the settlement gave tribal, local, state,
and federal government representatives an opportunity to better
understand each other and to become partners instead of combatants.
We have worked long and hard to negotiate the three settlements
represented by the respective Titles, and the State of Arizona strongly
recommends that the Committee support S. 437, the Arizona Water
Settlements Act of 2003.
______
Community's Water Rights
The Community and the United States shall have the following rights
to water, which shall be held in trust by the United States on behalf
of the Community:
------------------------------------------------------------------------
Amount
Source (AFY) Reference
------------------------------------------------------------------------
Underground Water................... 156,700 as set forth in
Paragraph 5.0
Globe Equity Decree Water........... 125,000 as set forth in
Paragraph 6.0
Haggard Decree Water................ 5,900 as set forth in
Paragraph 7.0
Community CAP Indian Priority Water. 173,100 as set forth in
Subparagraph 8.3.1
RWCD CAP Water...................... 18,600 as set forth in
Subparagraph 8.3.3
RWCD Surface Water.................. 4,500 as set forth in the
RWCD Agreement
HVID CAP Water...................... 18,100 as set forth in
Subparagraph 8.3.5
Asarco CAP Water \1\................ 17,000 as set forth in
Subparagraph 8.3.4
SRP Stored Water \2\................ 20,000 as set forth in
Paragraph 12.0
Chandler Contributed Reclaimed Water 4,500 as set forth in
Paragraph 18.0
Mesa Reclaimed Water Exchange 5,870 as set forth in
Premium. Paragraph 18.0
Chandler Reclaimed Water Exchange 2,230 as set forth in
Premium. Paragraph 18.0
New CAP NIA Priority Water.......... 102,000 as set forth in
Subparagraph 8.3.2
TOTAL........................... 653,500
------------------------------------------------------------------------
\1\ Subject to completion of ongoing negotiations between the Community
and Asarco.
\2\ SRP has conditionally agreed to provide an average of five hundred
(500) AFY of Blue Ridge Stored Water to the Community pursuant to
Subparagraph 12.13. In the event the conditions in Subparagraph
12.13.1 are satisfied, the amount of water listed in Subparagraph 4.1
to be provided by SRP shall increase to twenty thousand five hundred
(20,500) AFY and the amount of Underground Water listed in
Subparagraph 4.1 shall be reduced to one hundred fifty-six thousand
two hundred (156,200) AFY.
Senator Kyl [presiding]. Senator Murkowski stepped out
momentarily, so I will take the chair for a second. Senator
Bingaman, the floor is yours.
Senator Bingaman. Mr. Chair, did you want to go ahead and
hear from John D'Antonio first?
Senator Kyl. That might be better because we could join at
least those two issues together. So, Mr. D'Antonio, if you
would like to go ahead and make your comments now, then we will
just combine both of you for our questions.
STATEMENT OF JOHN D'ANTONIO, NEW MEXICO
STATE ENGINEER, SANTA FE, NM
Mr. D'Antonio. Mr. Chairman, thank you, committee members.
My name is John D'Antonio. I am the State engineer for New
Mexico and I very much appreciate the opportunity to appear
before you today and provide comments on behalf of the State of
New Mexico regarding the Arizona Water Settlements Act, S. 437.
This legislation will resolve longstanding water issues
among Indian tribes and water users in New Mexico and Arizona.
It is of great importance to the State of Arizona and it will
bring numerous benefits to water users and communities in the
Gila River Basin. I commend Senator Kyl for introducing such
comprehensive and much-needed legislation.
In addition to the benefits to Indian tribes and water
users in Arizona, this bill could benefit western New Mexico,
which shares the Gila River with Arizona. Both titles 1 and 2
of the bill--both title 1 of the bill, the Central Arizona
Project Settlement Act, and title 2, the Gila River Indian
Community Water Settlements Act, bear directly on use of the
water within the Gila River Basin in New Mexico.
During the last year we have worked with representatives of
the State of Arizona, Indian tribes, and water users to craft
language that will address New Mexico's needs. We have made
substantial progress and, if New Mexico's interests can be
protected, we will be able to stand fully behind the bill.
New Mexico has two discrete areas of interest. First, in
the Upper Valley Defendant, and that is referred to as the
UVD's, the agreement provided in title 2 of the bill, we want
to ensure that New Mexico farmers in the Verdant Valley are
treated fairly. Second, the authorization of a New Mexico unit
under section 304 of the 1968 Act authorizing the Central
Arizona Project must be fully protected and advanced. I will
discuss these two matters in turn.
Last year my office provided--participated in negotiating
provisions of the UVD agreement. The core agreement calls upon
the UVD's to reduce current irrigation by 3,000 acres in
exchange for the ability to pump groundwater up to 6 acre-feet
per year regardless of priority. The result in New Mexico is
that water rights associated with up to 240 acres, which is
about 8 percent of the currently irrigated acres in the Verdant
Valley, would be extinguished.
The State of New Mexico believes the UVD settlement in
Senator Kyl's bill is a fair and reasonable compromise that
will protect all parties and provide a more secure and
dependable water supply. We support implementing the UVD
settlement.
Our second concern is to carry out the authorization of the
New Mexico unit of the Central Arizona Project as provided in
the 1968 Act. The U.S. Supreme Court decree limited the State
of New Mexico to present and past uses of water. The 1968 act
authorized an apportionment to New Mexico as part of the CAP.
The intent of the 1968 Act is to provide for future uses of
water in New Mexico from the Gila River Basin above those
specified in Arizona v. California.
The 1968 Act directs the Secretary of the Interior to
provide New Mexico with its additional water through an
exchange by which the Secretary would contract with water users
in New Mexico for water from the Gila River Basin in amounts
that will permit the consumptive use of water not to exceed an
annual average of 18,000 acre-feet, including reservoir
evaporation, over and above the consumptive uses provided for
by article 4 of the decree in Arizona v. California.
To complete the exchange, the 1968 Act also directs the
Secretary to deliver CAP water to users in Arizona in
sufficient quantities to replace in full any diminution of Gila
River water supply that results from the additional consumptive
use of Gila River water in New Mexico. Amendments to S. 437 are
required to ensure New Mexico's ability to construct the New
Mexico unit and develop the 18,000 acre-feet. Over the last 9
months we have been working with the State of Arizona, Bureau
of Rec, Bureau of Indian Affairs, the Gila River Indian
Community, the San Carlos Irrigation and Drainage District, and
the Central Arizona Water Conservancy District to provide
necessary amendments and related settlement documents to
facilitate construction and operation of the New Mexico unit of
the CAP.
The following issues and tasks, have been--the following
issues and tasks have been or remain to be resolved in whole or
in part between Arizona and New Mexico in relation to the
18,000 acre-foot exchange: Number one, New Mexico's initial
concern was the Arizona Water Settlements Act would prohibit
the exchange of CAP water for New Mexico's additional diversion
of Gila River water. This issue is resolved.
Progress is being made on terms and conditions that will
incorporate into the exchange agreement between New Mexico, the
Gila River Indian Community, and the Secretary of the Interior
to effect the exchange provided in the 1968 Act.
Number three, all parties are working to develop acceptable
operational parameters that will allow New Mexico to divert
water without causing economic injury or harm to holders of
senior downstream water rights. General concepts have been
proposed and technical review is scheduled. We are working hard
to resolve this difficult and complex issue.
Number four, Globe Equity constraints may serve to
contravene the intent of the 1968 Act to provide additional
consumptive uses in New Mexico. Work is ongoing related to the
following Globe Equity issues: A, to keep UVD users whole,
accounting of storage in San Carlos Reservoir must include any
water diverted by the New Mexico unit; and B, the ability of
New Mexico to exchange without regard to the 1924 Federal
storage priority in San Carlos Reservoir, as was assumed in
Reclamation's 1982 and 1987 studies, must be confirmed.
Number five, as originally contemplated in the 1968 act,
funding for the New Mexico unit is authorized as part of the
CAP. While the original New Mexico project cost estimate was
severely--was approximately $70 million, the estimate inflated
according to the consumer price index results in a cost total
of over $300 million in today's dollars. However, we believe we
can build a suitable project for approximately $220 million,
including increased costs to accommodate the Federal
environmental mandates. Discussions are ongoing regarding what
costs would be supported under this proposal.
Number six, several entities are seeking to exchange Gila
River water for CAP water, a situation that could result in
shortages of available Gila River water in some years. New
Mexico has a senior exchange priority emanating from the 1968
act. Discussions and studies are under way to determine the
amount of exchanges with which New Mexico would share priority.
Madam Chairman, we are working tirelessly to finish our
negotiations with the State of Arizona, Indian tribes, and
other water users. Once these discussions are complete and
resolution of these issues can be incorporated into the
legislation, we look forward to providing New Mexico's strong
support for enactment of this bill by Congress.
Thank you again for the opportunity to present our views on
this matter.
Senator Murkowski [presiding]. Thank you both. We
appreciate your testimony here this afternoon.
Mr. Guenther, throughout the hearings that we have had
before this subcommittee, we certainly learned that in the
West, groundwater pumping over many decades can deplete the
groundwater resources which are connected to our river systems
and the effects that this takes can sometimes be very difficult
to realize or take decades to realize.
How confident are you that the groundwater pumping and
other land use practices in the Gila and the Salt River Basin
will not materially change the hydrologic conditions upon which
all these settlements are based? If you can just kind of give
me the details on your answer, that would be appreciated.
Mr. Guenther. Madam Chairman, I feel relatively certain
that the continued use--the nice thing about groundwater in our
Arizona in particular and certain areas of New Mexico is that
it provides an excellent storage basin for being able to bridge
the gaps in shortage years during our surface supplies. There
is always a vacillation between groundwater and surface water
use depending upon the local conditions of the watersheds and
meteorological conditions that develop on a year to year basis.
I would assume that that delicate balance would continue and
that, while you would see swings in the use of surface water
versus groundwater and vice versa, that there is no trend to
suggest that one use would exceed the other.
One thing I would hasten to add is that in Arizona I think
we have come to the realization that for all practical purposes
groundwater is a non-renewable resource due to the smaller
amounts of rainfall that we have, and that if we are going to
use that resource we need to do so wisely and in a safe yield
fashion, so that we do not eventually become dependent on a
resource that will be gone some day.
But I am relatively confident, Madam Chairman, that the
continued--the trend in usage will continue as it is now and
that we will continue to try to build bridges over tribal
litigation in the former settlements.
Senator Murkowski. Thank you.
Mr. D'Antonio, the Upper Valley Diverters in the Verdant
Valley of New Mexico, are they going to support this settlement
and if so how would the settlement affect the water uses in the
Verdant Valley?
Mr. D'Antonio. Madam Chairman, yes, the users in the upper
valley, the Verdant Valley, are in support of this. The States
worked closely with representatives of the Sunset Ditch and the
New Model Canal regarding the UVD settlement and we have had
several public meetings in the Verdant Valley, including
domestic well users there, and they are in support of this
agreement.
Senator Murkowski. I have several other questions. I think
what I will do, I also have some that Senator Domenici has
submitted, and what I will do is submit these to be responded
in writing.
Senator Bingaman.
Senator Bingaman. Thank you very much.
Let me ask Mr. Guenther first. As I understand what is
being proposed here, the settlement included in this
legislation contains this provision authorizing groundwater
pumping up to 6 acre-feet per acre in the upper valley. This
would seem to allow an increase in the depletion. However, in
your statement you say that you see this resulting in real
reductions in water usage. Could you explain how granting 6
acre-feet of water per acre can result in reductions in water
use?
Mr. Guenther. Senator Bingaman, currently the use per acre
is an unknown because it involves both a use of surface water
as well as a use of groundwater, both of which are measured to
less than an accurate degree. What this does is it has assumed
a beneficial use which is typical for agricultural production
of 6 acre-feet per acre combined use, we believe that,
depending upon what the source of that original use was,
whether it be groundwater or surface water, that this will in
turn be in most cases a reduction in applied water.
But in addition to that, we are also retiring 3,000 acres
of productive agricultural land at this time. So in essence you
are retiring 18,000 acre-foot of water use there as well.
I hope that answers your question.
Senator Bingaman. Well, we really do not know what the
amount of usage is at the current time, but we are assuming
that, whatever it is, by going to 6 acre-feet per acre, we will
still be seeing a decrease in water usage by virtue of the
retirement of that 3,000 acres. Is that basically what you are
saying?
Mr. Guenther. Yes.
Senator Bingaman. The Navajo Nation, you heard President
Shirley describe the concern they have with section 104 that
limits the existing authority that the Secretary of the
Interior has to allocate CAP water to Indian tribes. Would the
State of Arizona object to modifying this legislation in a
manner that would preserve the Secretary's authority to
allocate an amount that is needed to deal with the Navajo's
concern for CAP water under this Navajo-Gallup project?
Mr. Guenther. Senator Bingaman, we would not object to that
consideration. We would certainly like to be a part of putting
the language together, because this is a very fine needle that
needs to be threaded, and whether it is lower basin water for
use in an upper basin or an upper basin use in lower basin, we
need to make some wording adjustment there.
We have been working with the Navajo Nation and will
continue to work with them in trying to identify sources of
water for that, whether it be an allocation of the CAP, a
purchase of a right on the main stem, or a potential CAP lease,
are some of those areas that are currently being considered.
Senator Bingaman. Let me ask John D'Antonio. You heard
President Shirley's testimony also on this section 104
limitation on authority of the Secretary of the Interior to
allocate funds. Do you have a position or a view on that, which
you would like to express or elaborate on here?
Mr. D'Antonio. Madam Chairman, Senator Bingaman, my feeling
is that we do have and we are ongoing our separate Navajo
negotiations within the State of New Mexico. The issues are
pretty complex in terms that there is an upper basin Colorado
and a lower basin Colorado and some of the water in the
settlement that we are talking about with New Mexico is within
the upper basin States and we treat the two basins much
differently in terms of separate allocations.
In order for there to be any I guess dealing with the upper
basin, you would have to deal with seven States, obviously, in
looking at a different mechanism for water. Within our New
Mexico section, we are taking care of the Gallup, New Mexico,
water issues through a proposed pipeline in our negotiations.
Senator Bingaman. Do you agree that there is a problem with
us prohibiting the Secretary to allocate CAP funds, which is
what one of the provisions in this proposed legislation is?
Mr. D'Antonio. Madam Chairman, Senator Bingaman, I think
there would be a problem in restriction, just because water all
over the West is pretty limited and it limits the flexibility
in terms of going after what available water there is.
Senator Bingaman. Let me ask you about the same issue that
I asked Mr. Guenther about. Are you satisfied that what is
contemplated here with this 6 acre-feet per acre pumping being
permitted, that this in fact does not impede New Mexico's
ability to go ahead and use the Gila River water for its other
needs, that we are not going to see an increased usage of water
as a result of what is contemplated in the settlement here?
Mr. D'Antonio. Madam Chairman, Senator Bingaman, in New
Mexico there is only about 8 percent of that water usage in the
Verdant Valley in terms of drying up the 240 acres, which
represents 8 percent of the total 3,000 acres. That is the only
portion that is in New Mexico. It is not necessarily are we
concerned about impairing New Mexico's water users, but there
is a provision that we do not create any economic injury or
harm to any of the downstream Gila River water users that have
seniority status. So we are working closely with the State of
Arizona in terms of coming up with operational parameters once
that project is implemented to assure that there is not
additional harm or economic harm to any of the downstream
users.
Senator Bingaman. I will stop with that. Thank you, Madam
Chair.
Senator Murkowski. Thank you.
Senator Kyl.
Senator Kyl. Thank you, Madam Chair.
Let me just make a couple of comments and again, if either
one of you would like to respond--in fact, I am going to get
into pretty deep water here if I speculate too much. So please
correct me if I am wrong.
With regard to the most recent point that Senator Bingaman
made and then also going back to a question of Senator
Murkowski regarding use of groundwater, and in particular this
use of a combination of surface or groundwater for 6 acre-feet,
it is my understanding that in this particular area, because
the groundwater is pumped very near the river and because of
the soils involved, that there is a very quick recharge of the
aquifer and the underflow of the river, and that is an
additional factor, I think, that is somewhat unique to this
area that is not that unique to the area around the Gila River
Indian Community.
In other words, there is water taken out, applied to the
land, and quickly finds its way back into the underflow of the
Gila River. If I am incorrect on that, I think that are two
water experts can tell me.
But with respect to an area in central Arizona like the
area which is being farmed today in Pinal County adjacent to
the Gila River Indian Community, one of the benefits of the
settlement is to get that pumping stopped or at least a large
part of it stopped. That is one of the reasons why this 9-D
debt is being forgiven, that those farmers would stop pumping
water irrigating their lands and instead the Gila River Indian
Community would accede to much of that water that is currently
being used by the farmers in the area, non-Indian farmers, and
that the damage to the aquifer of the Gila River Indian
Community would then be ameliorated as a result of the fact
that the farmers would no longer be pumping.
And in that area you do not have that really quick
recharge. In fact, as Mr. Guenther pointed out, it is a very
long time in certain areas. So it depends on which area of the
State we are talking about with respect to recharge.
Then the other point I would like to make, I will go back
and check--I do not think--I might be wrong in this, but I do
not think the legislation limits the Secretary's authority to
upper water--excuse me--upper basin allocations. If we are
talking about an upper basin allocation for the Window Rock
project, then that would be one thing.
But with respect to the lower basin allocations, the reason
why I think it is important to retain the connection to Indian
water settlements is that obviously we are taking an amount of
water and setting it aside for Indian settlements and the
object here is to resolve all of these competing claims. That
is why it is important for the Secretary to be able to have
that water available to apply to Indian water settlements.
If he were simply given or she were given the discretion to
simply allocate water without those settlements, there could
well not be enough water available for future Indian water
settlements. Clearly, it was our intention that we have both a
means of paying for and supplying water for those settlements.
So I think there would be a very strong objection to
disaggregating the ability of the Secretary to make water
available for Indian water settlements in the lower basin and
to somehow provide an authority to allocate water outside of
those settlements. If I am incorrect in that, then please
correct me.
Mr. Guenther. Senator Kyl, I think you are very correct on
those issues. But you did raise a point that I think I would
like to help use to clarify, Madam Chairman, your question
earlier. That is, do we see a change in type of use in these
areas where these settlements are taking place? We are
currently before--the Gila River is currently in an
adjudication court. In that court, one of its highest
priorities is going to differentiate between groundwater and
surface water as to whether tributary sub-flows will be
included or whether sub-flows in general would be included.
To the degree that the court identifies sub-flows of the
river as surface water, what is now perceived to be groundwater
usage could be in fact surface water uses, which then would
require a surface water right which might not exist, and
therefore we might be weaning considerable numbers of people
from the use of groundwater in proximity to the main stem of
these rivers that are being adjudicated, just for a point of
clarification.
Senator Murkowski. Thank you.
Senator Domenici, we have had a very good, very thorough
hearing this morning, but do understand that you were occupied
with other committees. But if you would like to make any
comments--I did have an opportunity to read your opening
statement into the record, so that is there. But we have heard
some very good testimony regarding the settlements. If you
would like to make a comment or questions of either Mr.
Guenther or Mr. D'Antonio at this time, it would be most
welcome.
STATEMENT OF HON. PETE V. DOMENICI, U.S. SENATOR
FROM NEW MEXICO
The Chairman. Well, I thank you. Thank you very much.
I have met with the New Mexico delegation yesterday,
including the lawyer, who is a second generation lawyer. His
father was a great lawyer in New Mexico. I told him his father
was great, but I thought he was better. At least he was brief
and articulate and very easy to understand. He said that he
hoped his dad was that, too.
In any event, without too much time with them, but just
doing a little bit of the background thinking, I come up with
the conclusion that little old New Mexico is going to get her
share of this pot of money to make sure that we get our 18,000
acres. And anybody that has in mind that this project is going
through and we are not has it wrong, because we should have
already had it paid for. It should have come out of the
Colorado project clearly, from everything we read. As always
seems to happen, at least two or three of the projects in New
Mexico, they get left to the end.
But fortunately, before things finish somehow or another
they find their way back to having to have us involved. So my
statement was prepared to make sure everybody understood that,
and I came today to make sure that the Senators that were here
understood that, in particular that you, Senator Kyl, that you
understand. It is an expensive project, and it is expensive for
our little piece, but our little piece is absolutely a must,
because when you leave New Mexico out of the big project and it
comes back later and it costs money, you cannot excuse it on
the basis that it costs too much.
So we will be supportive. I have been supportive of what
you have been trying to do for 4 years and in the
appropriations bill specifically helped. But now is the time
when we see about others helping us.
So thank you very much. To the New Mexicans, I am very glad
that you came to the hearing and that you were well-prepared,
and I thank you for the strength of your intellectual concerns
and presentations, and it was good to b with you. Thank you.
Senator Murkowski. Senator Kyl.
Senator Kyl. Madam Chair, might I just make it clear, for
those of you what might not know, that what Senator Domenici
said is absolutely correct. He has been--he also serves as
chairman of the Energy and Water Appropriations Subcommittee,
and that subcommittee has had to, for the last 2 years and then
this year as well, include a provision which protects the
source of funding here for future use if we are able to get
this legislation adopted.
So he has already been helping to make this settlement work
if we are able, ever able to get it passed. I have thanked him
privately, but I will thank him publicly for his support again
this year for making that possible.
The Chairman. Madam President, Madam Chairwoman, is the
president of the Navajo Nation here?
Senator Murkowski. Yes, President Shirley was here earlier.
The Chairman. Is he still here?
Mr. Shirley. Yes.
The Chairman. President Shirley, I just wanted to say
hello, thank you very much for coming, and we hope we can make
this work to all our mutual benefits.
Mr. Shirley. Good afternoon, your honor.
The Chairman. Thank you very much.
Senator Murkowski. Thank you.
Well, I appreciate the testimony of those who were able to
participate on the panel this morning and now into the
afternoon. And for those of you who have attended and for those
that have come long distances, we appreciate all you have given
us this morning.
Because of the complexity of some of the issues and the
delay in receiving some of the testimony that we did get today,
the record on this legislation will remain, or for this
subcommittee, will remain open until the close of business on
Thursday for submission of additional questions, and then an
additional 2 weeks for other materials that you would like to
have submitted to the subcommittee for consideration.
So with that, I thank the members, Senator Kyl, Senator
Domenici, and for all those that came today. With that, we are
adjourned.
[Whereupon, at 12:27 p.m., the hearing was adjourned.]
APPENDIXES
----------
Appendix I
Responses to Additional Questions
----------
Arizona Department of Water Resources,
Phoenix, AZ, October 14, 2003.
Hon. Lisa A. Murkowski,
Chairman, Subcommittee on Water and Power, Senate Committee on Energy
and Natural Resources, Washington, DC.
Dear Madame Chairman Murkowski: Thank you for the opportunity to
appear before the Subcommittee on Water and Power to present the State
of Arizona's testimony on S. 437, the Arizona Water Settlement Act.
I have reviewed the question submitted by Senator Bingaman and have
enclosed my answer to his written question. Additionally, I enclosed an
answer to the question that Senator Bingaman posed during my testimony.
Finally, the Central Arizona Water Conservation District (who submitted
separate testimony) and the Arizona Department Water Resources prepared
supplemental information in response to the written and oral testimony
of the San Carlos Apache Tribe about S. 437. The Cities of Phoenix,
Chandler, Glendale, Goodyear, Mesa, Peoria, Tucson, and Scottsdale; the
Maricopa Stanfield Irrigation and Drainage District, and the Central
Arizona Irrigation and Drainage District have reviewed this
supplemental response and those entities support the submittal of the
supplemental response.
I respectfully ask that my responses to questions and the
supplemental response be made a part of the official hearing record.
Again, I thank you for the opportunity to represent the State of
Arizona before the Subcommittee.
Sincerely,
Herbert R. Guenther,
Director.
[Enclosures.]
Question From Senator Bingaman
Question. It is my understanding that the Upper Valley settlement
included in S. 437 includes provisions that authorize groundwater
pumping up to an amount of 6 acre-feet acre. This would seem to allow
for increased depletions in Upper Gila, but your statement sets out
that the Upper Gila settlement will lead to ``real reductions in water
use, to the benefit of the river's health.'' Can you briefly explain
how the Upper Valley settlement is structured so that we can understand
how it may lead to reduced depletions from the Upper Gila River?
Answer. At dispute has been irrigated lands near decreed acreage
that may or may not have been irrigated with Gila River water over the
years. The settlement sets up a procedure to transfer decreed rights to
some of the acres while retiring others. In essence this reduces the
overall acreage being irrigated in the Upper Gila Valley. Finally, the
settlement provides that the irrigation districts in the Upper Gila
Valley will permanently retire 3000 acres of currently farmed decreed
lands. This retirement will reduce diversions off the River and its
conjunctive groundwater pumping. The settlement also provides that if
an agreement is reached over the water rights of the San Carlos Apaches
the irrigation districts will transfer another 2000 acres of decreed
rights to the Apaches, and another 500 acres would be retired for the
benefit of the Gila River Indian Community.
Under the 1935 Globe Equity Decree the farmers in the Upper Gila
Valley were granted a diversion right of 6 acre-feet per acre of
decreed lands. Over the years the farmers supplemented this supply with
groundwater. The Globe Equity Court has wrestled with the groundwater
pumping issue for many years without clarifying the relationship
between surface water and groundwater. Under the settlement the 6 acre-
feet per acre limit is on conjunctive use of surface and groundwater
supplies. Therefore the farmers will be limited to a total amount of
water regardless of source.
Question From Senator Bingaman at the Hearing
Question. The Navajo Nation has recommended that section 104 be
amended to allow the Secretary to reallocate Central Arizona Project
(CAP) water for drinking water purposes prior to congressionally
approved water settlement with the Navajo Nation. Would you object to
Congress making this change?
Answer. We believe it is unnecessary to change that provision, and
would be inconsistent with the purposes of the Title I CAP settlement.
In the 1980s the Secretary made allocations of CAP water to Arizona
Indian tribes without any requirement of settlement of water rights
claims. The purpose of the restriction in section 104(a)(1)(B)(i) is to
make the limited resource of CAP water available for future tribal
water settlements. This provision was negotiated over several years and
is a key to the CAP settlement. Such an amendment would require the
agreement of the settlement parties. Various parties in Arizona have
indicated they may no longer support S. 437 should this provision be
deleted or amended to bypass the tribal water settlement requirement.
We do not believe the water defined in section 104 best meets the
needs of the Navajo Nation in terms of immediacy. Such water will not
be available for reallocation until the final enforceability date after
congressional passage. It is estimated that the necessary court
approvals, state legislative actions, and funding requirements will
place that date several years away, time enough to reach a tribal water
settlement with the Navajo Nation.
We are currently in negotiations with the Navajo Nation about their
mainstem water claims. Through these negotiations and other talks we
are exploring options with the Navajo Nation of other Arizona Lower
Basin allocations and from Arizona's Upper Basin allocation to meet the
Window Rock needs.
______
Arizona Supplemental Testimony in Response to San Carlos Apache Tribe
Written Testimony
The written testimony submitted by the San Carlos Apache Tribe
regarding S. 437 and H.R. 885 contained errors and misstatements, the
most notable of which are set forth below (in italics) followed by a
correct statement of the facts.
``The San Carlos Apache Tribe was intentionally and systematically
excluded from the drafting of this Settlement, and from participating
in the negotiations of the settlement agreements which have occurred
over the last several years.'' (Statement of Kathleen W. Kitcheyan,
page 3)
Fact: The San Carlos Apache Tribe was not excluded from the
negotiation or drafting of the Arizona Water Settlements Act or the
Gila River Indian Community Water Rights Settlement Agreement. To the
contrary, the Tribe was repeatedly invited to participate, but chose
not to.
``Section 106(b) of the proposed legislation' would relieve CAWCD
of $73,561,337 in capital debt to the United States for the CAP.'' (p.
6)
Fact: The legislation does not relieve CAWCD of any CAP repayment
debt. The debt relieved in section 106(b) is debt owed by non-Indian
irrigation districts for construction of their CAP distribution
systems. That debt is being relieved to compensate the non-Indian
irrigators for relinquishing their long-term CAP water rights to make
that CAP water available to settle the water rights claims of Indian
tribes such as the San Carlos Apache Tribe. As part of the
relinquishment, CAWCD will pay $85 million of the irrigators' debt in
addition to its CAP repayment debt.
``The proposed legislation permits CAWCD to continue discriminatory
pricing of Indian CAP water, and to keep all of the power and other
revenues to subsidize non-Indian use of CAP water to the lowest rates,
thus making Indian use of CAP water virtually impossible.'' (p. 8)
Fact: The legislation does not address the pricing of CAP water. By
law and contract, CAWCD operates the CAP and sets rates for water
delivery to non-Indian water users and for federal uses. The Secretary
of the Interior (Secretary) then decides what delivery rate Indian
tribes will pay; if the rate charged Indian tribes is less than the
federal use rate established by CAWCD, then the Secretary is
responsible for paying the difference. The CAP delivery rate
established by CAWCD for federal uses is the same as that for non-
Indian CAP subcontractors and is tied to the actual cost of delivering
water. As part of the Arizona Water Settlement Agreement, to which the
United States is a party, CAWCD has promised to deliver to non-Indian
farmers a limited quantity of CAP water for a limited time at less than
the full cost of delivering that water. The non-Indian irrigators will
receive low-cost pricing in return for permanently relinquishing their
long-term rights to CAP water so that water can be reallocated to
Indian tribes such as the San Carlos Apaches to facilitate Indian water
rights settlements. The water to be delivered to those farmers is
``excess'' CAP water--that is, water that is not ordered by those with
long-term CAP contract entitlements. CAWCD's taxpayers will pay the
remainder of the cost of delivering excess water to the non-Indian
farmers. Indian tribes such as the San Carlos Apaches do not pay taxes
to CAWCD. Power revenues are not used to subsidize CAP rates for non-
Indian water users. Far from making Indian use of CAP water
``impossible,'' the Act will instead allow the use of Development Fund
revenues to pay a substantial portion of the cost of delivering CAP
water to Indian tribes, leaving the tribes to pay the same effective
rate as non-Indian irrigators and far less than CAP municipal and
industrial water users.
``The proposed allocation of CAP water in the Arizona Water
Settlements Act increases the size of the Indian and M&I water
categories, which in turn, increases the uncertainty of the entire pool
of Indian and non-Indian CAP water pools.'' (p. 10)
Fact: The Act does not increase the amount of Indian and M&I
priority water; all CAP water reallocated under the Act will retain its
existing priority. [See, e.g., section 104(a)(3)] The act will not
``increase uncertainty,'' but rather will improve the reliability of
the San Carlos Apache Tribe's CAP water in at least two respects.
First, the Act enhances the reliability of the Tribe's M&I priority
water by reducing the ability to convert lower priority non-Indian
agricultural water to M&I priority, thereby diluting the M&I pool.
Second, the new shortage sharing criteria in the Gila River Indian
Community water rights settlement agreement will elevate the priority
of the Tribe's ``Indian irrigation'' water to be the same as its
``Tribal homeland'' water.
``The proposed legislation prescribes an entirely new system for
use of the [Development] Fund which greatly assists CAWCD in its
repayment obligation for the non-Indian portion of construction costs
of the CAP (which will be reduced to $1.65 billion in the proposed
legislation), assists in payment of OM&R expenses for non-Indians, and
relegates, except for the benefits of GRIC, the Indian portion of
construction costs, the funds for construction of Indian CAP projects,
and payment of Indian OM&R to the leftover scraps, if any.'' (p. 11)
Fact: Under existing law and contract, Development Fund revenues
are applied each year against CAWCD's repayment obligation. The Act
does not alter that arrangement in any respect and provides no
additional ``assistance'' to CAWCD. Nor does the Act reduce CAWCD's
repayment obligation for the CAP, which was established in a stipulated
settlement of litigation in U.S. District Court between CAWCD and the
United States. The Development Fund does not pay any OM&R expenses for
CAP water delivered under contract with non-Indian CAP water users,
either currently or under the Act. Indeed, the first priority use of
Development Fund revenues under the Act is to pay the fixed OM&R costs
of delivering CAP water to Indian tribes, such as the San Carlos Apache
Tribe. No Indian tribe has ever been asked to repay one cent of the
cost of constructing the CAP. By comparison, non-Indian water users,
through CAWCD, have repaid the federal government nearly $700 million
thus far. The Act does not alter the provisions of the Basin Project
Act that authorize appropriations for the construction of CAP
distribution systems for Indian tribes. The State of Arizona and CAWCD
have supported appropriations necessary for the construction of those
systems and will continue to do so. Far from relegating tribes to the
``leftover scraps,'' the Act supplements traditional methods of finding
the construction of Indian distribution systems by authorizing use of
Development Fund revenues, in addition to appropriations, for that
purpose.
``The proposed legislation would tie the development of
infrastructure to deliver a Tribe's CAP water entitlement, obtained in
the 1980 contract, to a final settlement of the Tribe's water rights.''
(p. 15)
Fact: The Act would allow the use of Development Fund revenues to
fund construction of CAP distribution systems for tribes that have
Congressionally approved water rights settlements, such as the San
Carlos Apache Tribe, as well as other specific tribes without
settlements, such as the Yavapai-Apache. The Act does not preclude
Congress from making appropriations to fund construction of CAP
distribution systems for tribes that do not have final Indian water
rights settlements.
``The new shortage sharing criteria creates a structure whereby
Indians will be required to take a greater reduction in their CAP
supplies than required by the current Indian CAP contracts and non-
Indians will bear less of the burden for the shortage than under the
current non-Indian M&I contracts.'' (p. 16)
Fact: The shortage sharing criteria in the Gila River Indian
Community water rights settlement agreement reconciles incompatible
provisions in the CAP Indian contracts, CAP non-Indian subcontracts and
the Secretary of the Interior's 1983 Record of Decision regarding the
allocation of CAP water. It does so in a manner that is fair and
equitable to all CAP water users. The new shortage sharing criteria
will not apply to any CAP Indian tribe, including the San Carlos Apache
Tribe, unless that tribe agrees to be bound by them.
``Under Title II of the proposed legislation, when the CAP canal
capacity is not enough to deliver all CAP Water Orders, GRIC will be
the last required to take a reduction.'' (p. 17)
Fact: There is no such provision in Title 2 (or elsewhere in the
Act). If canal capacity is limited, the Gila River Indian Community is
entitled to receive no greater percentage of its annual water order in
any month than any other similarly situated CAP water user.
``The proposed legislation would eliminate the Secretary of
Interior's discretion of determining when a shortage exists and the
discretion of determining many of the terms of CAP delivery
contracts.'' (p. 17)
Fact: The Act will not affect the Secretary's discretion in
determining whether a shortage exists on the Colorado River or in
implementing CAP delivery contracts.
______
Supplemental Testimony Submitted by the Gila River Indian Community
This supplemental testimony is being submitted to correct certain
errors, omissions, and misstatements contained in the testimony of the
San Carlos Apache Tribe (SCAT). Because of the large number of such
errors, omissions and misstatements the Gila River Indian Community
(Community) has limited its supplemental testimony to those that were
most egregious or potentially misleading. The italicized text below
indicates the error, omission or misstatement being addressed and the
Fact section presents the Community's correction for the record.
I. San Carlos Apache Reservation
A. Water Sources
During the hearing before the House Water and Power Subcommittee of
the House Resources Committee, the Chairperson of the San Carlos Apache
Tribe asserted that the flow of the Gila River was contaminated by
pollution that causes birth defects on the SCAT Reservation.
Fact: First, as, discussed in greater detail below, the only known
water quality issue present in the upper Gila River concerns salinity
from within the Gila River basin. It is generally accepted that
elevated salinity levels in water, particularly of the levels found in
the upper Gila River basin, do not, by themselves, cause birth defects.
The Community recently contacted local and state health officials to
confirm that there is no known connection between salinity in water and
birth defects.
Second, even if there were a connection between increased salinity
and birth defects, which there is not, SCAT's written testimony to the
Committee confirms that SCAT does not use Gila River water for any
domestic or municipal use but rather relies exclusively on groundwater
for domestic and municipal uses.
Third, although the rate for all Arizona Indians is high by
comparison to non-Indians, the rate of birth defects at SCAT (2.4%) is
not elevated at all by comparison to the average rate of all other
tribes in Arizona (2.5%).
During the hearing, an attorney for SCAT indicated that federal
court rulings explicitly require the delivery of SCAT's 6,000 acre-feet
of water per year of water (afy) by direct diversion from the Gila
River, rather than by means of an upstream diversion into a pipeline
that avoids high salinity springs that flow into the Gila River.
Fact: SCAT's written testimony includes the Water Quality
Injunction issued by the Globe Equity Court on May 28, 1996, which
states:
``Nothing in this injunction shall prohibit the parties, upon
agreement or by order of this Court, from connecting the Apache Tribe's
irrigation system directly to the canals of the Gila Valley Irrigation
District for delivery of water directly to Apache farm lands. The
connections may be made by canal or a pipe.'' (SCAT Exhibit K, p. 14
(emphasis supplied).
II. Overview of Title I and Title II of the Arizona Water Settlement
(sic.) Act (S. 437 and H.R. 885)
The settlement agreements and the exhibits to the settlement
agreement ``attempt to `legislate' the water rights of [certain]
parties in lieu of their adjudication in the Gila River Adjudication.''
(p. 3.).
Fact: First, a condition of the enforceability of the Arizona Water
Settlements Act is the approval by the Gila River Adjudication Court of
the Gila River Indian Community Water Rights Settlement Agreement
(Settlement Agreement). Thus, any water rights confirmed to the
Community as a result of this settlement will be reviewed, and
hopefully approved, by the Gila River Adjudication Court. During this
court approval process any affected party, including SCAT or the United
States on its behalf, may object to the settlement stating the grounds
for their objection. The Gila River Adjudication Court will then render
a judicial determination itself approving the Settlement Agreement or
not.
Second, all of the Indian tribes with claims to the waters of the
Gila River and its tributaries are participating in the Gila River
Adjudication. Several of these Indian tribes, including, SCAT, have
reached agreements with other parties asserting adverse or competing
claims. These agreements provide that in exchange for an agreement on
the amount of reserved right to be asserted by or on behalf of the
Indian tribe, the tribe and the United States in its trust capacity for
that tribe, agree not to challenge the claims of the parties to the
agreement. In addition to entering such an agreement, SCAT sought and
obtained a Special Proceeding before the Gila River Adjudication Court
to obtain expeditious consideration of its agreement. The Court's order
was issued December 12, 1999. There is absolutely no basis for SCAT to
challenge the Community's effort to utilize the same process to reach
settlements in the Adjudication. The Community's settlement no more
``legislates'' water rights in the Adjudication than the SCAT
Settlement, the Fort McDowell Settlement, the Salt River Pima-Maricopa
Settlement, or the Yavapia-Prescott Settlement.
``The proposed legislation also attempts to settle all pending
disputes between certain decreed parties in the Globe Equity No. 59
proceeding.'' (p. 3)
Fact: First, the legislation and the Settlement Agreement only
address the Community's pending disputes with certain parties in the
Globe Equity 59 enforcement proceeding. All other parties, including
SCAT, retain all their legal rights in connection with any pending or
future proceedings to protect their rights or claims to water in
Arizona.
Second, an additional condition to the enforceability of the
Arizona Water Settlements Act is the approval of the Community's
Settlement Agreement by the Globe Equity Court. Thus, any water claims
settled by the Community as a result of this settlement will be
reviewed, and hopefully approved, by the Globe Equity Court. During
this court approval process any affected party, including SCAT or the
United States on its behalf, may object to the settlement stating the
grounds for their objection. The Globe Equity Court will then render a
judicial determination itself approving the agreement or not.
``The settlement agreements would allow Gila Valley and Franklin
Irrigation Districts to continue to pump up to six acre-feet per year
of water from the ``subflow'' of the Gila River in violation of the
Tribes senior 1846 water rights under the Globe Equity Decree and
continue to divert water for ``hot lands'' which do not have any
decreed water rights.'' (p. 3)
Fact: The Community has agreed not to challenge uses of up to 6 afy
of water (by pumping and direct river diversions) on a number of acres
that is reduced from current levels by 3,000 acres. The Community's
agreement not to challenge such uses is contingent on the Upper Valley
Diverters' (``UVDs'') compliance with very specific conditions set
forth in the UVD Agreement, including monitoring requirements and
control of phreatophytes, among many others. The existing ``hot lands''
are part of the acreage limit to the extent they become Decreed lands
pursuant to application to Globe Equity court for such status. SCAT may
object to such application, as may the United States on SCAT's behalf,
or any other party except the Community.
Overall, the UVD agreement will unquestionably reduce UVD water use
and consumption. Diversion and pumping records for the period 1936-1997
clearly show that pumping and surface diversions as well as total
consumptive use of water by crops will be reduced when the Settlement
Agreement is fully implemented. The Settlement Agreement holds the UVDs
to total pumping and diversions of approximately 181,860 afy. In every
year since 1956, the UVDs combined pumping and diversions have
substantially exceeded this amount. The average of the UVDs combined
pumping and direct diversions for the period 1937 to 1997 was almost
230,000 afy.
Most significantly, all uses of water, even uses that conform to
the UVD agreement, will still remain subject to challenges by SCAT if
they believe such uses affect their 1846 water right. There is nothing
in the legislation, the Settlement Agreement or its exhibits which
prevents SCAT or the United States, in any capacity other than as
trustee for the Community, from proceeding with any new or existing
claims against the UVDs.
III. Central Arizona Project
B. Repayment of CAP Debt to United States
``If CAWCD's debt was $1.65 billion, that would leave approximately
$2.35 billion in project costs unresolved and possibly charged to
Indian lands.'' (p. 6-7.)
Fact: There is simply no basis in federal law or policy for even
speculating about whether CAP costs will be disproportionately charged
to Indian tribes because the Colorado River Basin Project Development
Act of 1968 (CRBPA) imposes the following limitation:
``The Secretary shall determine the repayment capability of
Indian lands within, under, or served by any unit of the
Central Arizona Project. Construction costs allocated to
irrigation of Indian lands and within the repayment capability
of such lands [shall be indefinitely deferred as provided in 25
U.S.C. Sec. 386a], and such costs that are beyond repayment
capability of such lands shall be nonreimbursable.'' (43 U.S.
Sec. Sec. 1542, emphasis supplied)
Other parties address the SCAT's other misstatements about CAP
repayment.
C. CAWCD Sells Indian Water to Non-Indians and Keeps the
Income.
D. CAWCD Discriminates Against Indians in Its Pricing
Structure for CAP Water Which Makes Tribal Use of
CAP Water Under Indian Contracts Cost Prohibitive.
E. Disincentive to Construct Tribal CAP Projects Due to
CAWCDs ability to Market Indian Water for Non-
Indians and Keep the Income
Fact: The Community agrees that CAWCD has very recently proposed a
problematic ``excess water'' pricing scheme, which, if implemented,
would allow non-Indians to purchase CAP water at a lower rate than
Indian tribes. Such policy would affect the Community more than SCAT
because the Community has an existing CAP allocation of water that is
larger than that of SCAT. The enactment of Title I of S. 437 and H.R.
885 will provide immediate relief from the disparity caused by this
proposed CAWCD pricing scheme. In addition, because CAWCD will be
reimbursed by the federal government for fixed Operation, Maintenance,
and Replacement (OM&R) charges for CAP water held under long-term
tribal contracts, and not for reimbursed for such charges for ``excess
water'', the CAWCD's incentive will be to encourage the use of CAP
water by Indians.
H. CRBP Development Fund Will be Used for Non-Project
Purposes and Will Continue to Be Used to the
Disadvantage of Indians
Fact: Each of the points raised in this section are effectively
refuted by the proposed amendment to Sec. 403 (43 U.S.C. Sec. 1543) of
the Colorado River Basin Project Act (CRBPA).
Three sources of revenue established by the CRBPA and the ``annual
payment by the CAWCD to effect repayment of reimbursable CAWCD
construction costs [$1.65 billion], shall be credited against the
annual payment owed by the CAWCD,'' and then all of these funds:
``shall be available annually, without further appropriation,
in order of priority: (A) to pay fixed operation, maintenance,
and replacement charges associated with the delivery of Central
Arizona Project water under long-term contracts for use by
Arizona Indian tribes.'' (Sec. 107(a))
``GRIC is first in line to take the credits from the annual
payments made by CAWCD each year. GRIC proposes to not only use the
Fund for CAP purposes . . . it will use $147 million to rehabilitate
its BIA San Carlos Irrigation Project system which delivers water to
GRIC from the Gila River.'' (p. 12)
Fact: The Settlement Agreement ratified by S. 437 and H.R. 885
impose an annual cap of $25 million on the amount of money available
from the Lower Colorado River Basin Development Fund (Development Fund)
for San Carlos Irrigation Project (SCIP) rehabilitation. This ensures
that every year there will be millions of dollars in excess of this
particular cap that can and will be applied to other Indian projects.
At the request of other parties, the Community agreed to this annual
limit to ensure that other Indian water projects are also paid for on
an ongoing basis. The Bureau of Reclamation has developed a projection
of funding inflows and outflows for the Development Fund that
demonstrates that all Indian projects currently contemplated, including
SCAT, will be funded in a timely and certain manner.
SCAT appears to argue that none of the Development Fund should be
available for tribal irrigation systems unless those systems are used
exclusively for CAP water. Yet the SCAT project authorized by its 1992
settlement, and funded by the Development Fund, will deliver both CAP
water and non-CAP water. ``The draft EIS will evaluate reasonable
alternative methods of delivering the CAP water and other waters''
including 6,000 afy of G.E. 59 decreed water, 7,300 afy from the Black
and/or Salt Rivers, and water from local Tribal water sources. (Notice
of Intent to Prepare EIS, 67 Federal Register 8316 (February, 2002)
In addition, SCAT's argument would deny access to the Development
Fund to the Navajo Nation, Hopi and possibly other Indian tribes in the
Gila River watershed and other Arizona watersheds if they obtain
settlements that include non-CAP water supplies.
I. The Proposed Legislation Will Require That Tribes Have a
Water Rights Settlement in Place Before a Tribe Can
Use CAP Water Whereas Non-Indians Have Been Able to
Use CAP Water for Years Without a Settlement of
Water Rights
``Tribes without water settlements will not have their CAP delivery
systems built until a settlement is in place. That violates the Tribe's
CAP contracts.'' (p. 13)
Fact: This statement simply ignores the provisions of S. 437 and
H.R. 885, which provide that both CAP repayment funds and appropriated
funds are available ``to pay the costs associated with the construction
of distribution systems required to implement the provisions of . . .
(II) section 3707(a)(1) of the San Carlos Apache Tribe Water Settlement
Act of 1992 (106 Stat. Sec. 747)'' (emphasis added), which includes CAP
delivery components. See Section 107(a) (amending section
403(f)(2)(D)(i)(II) of the CRBPA). Both bills also explicitly make
funds available for the construction of on-reservation distribution
systems for the Yavapai Apache (Camp Verde), Pascua Yaqui, and Tonto
Apache Indian tribes along with the Sif Oidak District of the Tohono
O'odham Nation.'' (See Section 107(a) (amending section 403(f)(2)(E) of
the CRBPA)
In addition, SCAT's testimony acknowledges that money from annual
appropriations, as well as funds from the Development Fund, will be
available to underwrite the cost of these and other Indian distribution
systems in Arizona. (p. 14).
``For over 10 years, the San Carlos Apache Tribe has had a
settlement in place.'' (p. 14)
Fact: Unlike other statements in SCAT's testimony, this statement
is correct. As discussed above, SCAT's settlement was only made
enforceable in December 1999. Nevertheless, for more than 10 years,
SCAT has enjoyed the certainty and other benefits it has acquired from
its 1992 water settlement, a certainty that it seeks to deny to the
Community. At that time, SCAT ensured that it acquired a water supply
that is more reliable than other Indian tribes in Arizona can even hope
for. SCAT was able to accomplish this by keeping other interested
parties in the dark about its intentions and its negotiations until its
settlement was included as one of the last titles in largest
reclamation project legislation approved by Congress in decades. While
SCAT is now championing the virtues of inclusiveness in water
settlement negotiation, it did not even attempt to consult with the
Community in 1992 or consider the impact of its settlement on the
Community's efforts to assert claims to the Salt and Verde Rivers.
J. Gild River Indian Community's Settlement CAP Water Will
Be Substantially Used by Non-Indians
Fact: SCAT fails to acknowledge that water leases are often an
integral component of Indian water rights settlements, including SCAT's
1992 settlement, where they serve a variety of purposes. For example,
in the Community's case, it is able to leverage CAP leases in exchange
for a greater supply of treated effluent from neighboring cities. Upon
close examination the leases and exchanges contemplated by the
Settlement Agreement all serve such dual purposes by increasing water
use efficiency and/or the reliability of the water provided to the
Community. SCAT itself has leased much of the CAP water it obtained
from its 1992 settlement to non-Indian parties.
L. When The CAP Canal Capacity is Not Enough to Deliver All
CAP Water Orders, GRIC Will Be the Last to Be
Required to Take a Reduction
Fact: This is simply incorrect. Paragraph 8.14 of the Settlement
Agreement, to which the statement by SCAT is directed, simply ensures
that GRIC's CAP water deliveries are not reduced based on delivery
capacity unless those of ``similarly located,'' CAP water users are
also reduced.
N. San Carlos Apache Tribe's Water Rights Settlement Act
Will Likely Be Impaired
Fact: At the September 30, 2003 joint hearing before the Senate
Energy and Natural Resources and Senate Indian Affairs Committees and
then before the Water and Power Subcommittee of the House Committee on
Resources the Acting Assistant Secretary for Indian Affairs, Aurene
Martin, was asked several times whether the Arizona Water Settlements
Act violated the federal government's trust responsibility to any
Indian tribe. She answered that it did not. The Acting Assistant
Secretary provided similar assurances to the House Water and Power
Subcommittee of the House Resources Committee.
O. San Carlos Apache Tribes Water Supply from Gila River
Will Be Further Diminished by Exchanges of CAP
Water for Gila River Water Upstream of Tribes
Reservation
Fact: The Community has already shown that the UVD agreement will
decrease the amount of water used for irrigation in the upper Gila
valley. The Community also notes that all exchanges contemplated by the
Settlement agreement are subject to full federal environmental review
before they are approved by the Secretary. They must also be approved
by the Globe Equity Court. The Phelps Dodge agreement explicitly
prevents the Secretary from approving the lease exchange until: ``All
Environmental Compliance has been completed relating to the United
States' execution of the Lease and Exchange Agreement and any
litigation relating to such Environmental Compliance is final and
subject to no further appeal.'' In addition, the entire Settlement must
be approved in a Special Proceeding before the Gila River Adjudication
Court. SCAT will have at least three opportunities to present evidence
about any impact associated with these exchanges. Finally, in an effort
to ensure that the SCAT current water supply is not simply preserved,
but improved both as to quality and quantity, the Community is working
actively with other parties to develop a mechanism to provide SCAT with
a direct delivery of Gila River water through a pipeline that avoids
the salinity of which SCAT complains.
P. San Carlos-Apache Tribes Right To Power Generation
Benefits of its Power Site at Coolidge Dam Will Be
Diminished
Fact: Any discussion about SCAT's claim of injury based on a loss
of electrical power is, of course, academic and speculative at this
juncture because no electricity is being produced.
With respect to SCAT's claim that it was inadequately compensated
for the construction of Coolidge Dam, this has no relevance to the
settlement of water rights disputes concerning the Gila River Indian
Community and Tohono O'odham Indian tribes. Whatever the merits of SCAT
claims, they only serve to create confusion about unrelated issues.
SCAT chose not to press for resolution of this issue when its 1992
settlement was before Congress, perhaps because it did not wish for
these issues to interfere with its efforts to enact a water settlement
It should not be entitled to interject these issues at this juncture,
at the expense of other Arizona Indian tribes.
IV. The GRIC Settlement (S. 437 and H.R. 885) Will Result in
Unprecedented Environmental Degradation to the Gila River
System and Source and to San Carlos Lake
A. The Gila River System and Source As Well As San Carlos
Lake Provide Some of the Last Remaining Riparian
Habitat in Arizona, Which Must Be Preserved to
Ensure the Continued Existence of Many Sacred,
Rare, and Federally Listed Animals and Plants
1. The Habitat of the Gila River and Its Tributaries
Fact: Nothing in the Gila River Indian Water Rights Settlement Act
or Settlement Agreement contradicts the provisions of P.L. 101-628
establishing the Gila Box Riparian National Conservation Area.
2. The Habitat of San Carlos Lake
Fact: SCAT's assertions about San Carlos Lake mirror a series of
claims that were rejected by the U.S. District Court for Arizona in
July 2003. The court found that SCAT had not presented enough evidence
of any threats to threatened, endangered, or other species in San
Carlos Lake to merit any further consideration of its claims. The court
explicitly rejected SCAT's efforts to tie low lake levels to avian
botulism. ``[T]wo experts with 30 years experience treating injured and
diseased raptors, one expert working in Arizona since 1973, have never
encountered botulism in Bald Eagles and both stated that Bald Eagles
would not likely be impacted by this disease.'' SCAT v. United States,
2003 WL 21697724 (2003 D.Axiz.)
B. The Act and Agreement Will Destroy the Flows In the Gila
River Watershed and Contaminate its Flows Through
the Discharge of Treated Effluent
Fact: Re-use of highly treated effluent by putting it back into
river systems is a recognized mechanism for efficient water use,
particularly in water-short areas such as Arizona. Any discharges of
such effluent will be governed by both federal and state law, and
cannot be therefore be characterized as a contaminating pollutant.
Exchanges with Phelps Dodge, ASARCO and New Mexico can only occur
after environmental compliance and then only in accordance with Article
XI of the Globe Equity Decree.
``The Apache Tribe objects to the SCIDD proposal which cannot
fulfill the United States' trust responsibility to the Apache Tribe to
preserve and protect San Carlos Lake.'' (p. 31)
Fact: In July 2003, the U.S. District Court for Arizona addressed
each of SCAT's claims that the operation of San Carlos Reservoir and
the failure to provide a minimum storage pool breached the federal
government's trust obligation to SCAT. The court rejected each of
SCAT's allegation, including the allegation that the operation of the
dam violates federal laws for the protection of archeological and
cultural resources. The court found that SCAT had simply not presented
evidence that there was any factual or legal basis to require the
government to maintain the minimum project pool. In clear terms, there
is no trust responsibility to maintain a minimum lake level.
V. The GRIC Settlement Expressly Exempts Itself From Compliance with
the National Environmental Policy Act and Contains Broad and
Sweeping Environmental Waivers
A. Exemption from NEPA Compliance
Fact: SCAT is well-aware that this provision is included in all
Indian water rights settlements. For example, it was included in the
San Carlos Apache Water Rights Settlement Act of 1992 (Sec. 3709(a),
P.L. 102-575).
B. The GRIC Settlement Requires the United States to
Execute Broad Waivers and Releases for Past,
Present, and Future Environmental Harms
Fact: SCAT's comments purposefully ignore the limitations on the
scope of the claims the United States will not assert pursuant to
Sec. 207(c). The only claims the government agrees that it will not
pursue are those claims enumerated in Sec. 207(a). These are claims
that only involve the interests of the Community, its members, and its
members as allottees.
VII. The GRIC Settlement Act Creates a ``Template'' for the Loss of
Tribes' Federal Reserve Water Rights for Lands Transferred Into
Trust
Fact: Indian land and water settlements frequently contain
provisions that address or place constraints on future tribal
acquisitions of land or water. SCAT has no objection to similar
provisions in the Zuni Water Settlement (P.L. 108-34) or in Title III
of the Arizona Water Settlements Act.
IX. Globe Equity Decree-Rights of the San Carlos Apache Tribe
A. Federal Globe Equity No. 59 Consent Decree
2. The San Carlos Apache Tribe Has Federal Reserved and Aboriginal
Water Right Claims Pending in the Gila River General Stream
Adjudication for Additional Water Rights to the Mainstem of the Gila
River Which Could Affect the Globe Equity No. 59 Decree
Fact: As the testimony before the Committee explained, nothing in
the Arizona Water Settlements Act impedes SCAT's effort to assert its
reserved water rights claims, just as the Community accepts that SCAT
could and did reach settlements with parties asserting claims adverse
to the Community's reserved rights claims through the 1992 SCAT
settlement legislation. The Community's settlement also preserves
SCAT's ability to object to any provision its settlement in federal and
state court before the Community's settlement would become effective.
It also preserves SCAT's ability to object in court as to any of the
possible exchanges contemplated by the Community's settlement.
3. The Globe Equity No. 59 Court Has Entered a Water Quality
Injunction Against the Gila Valley and Franklin Irrigation District to
Ensure That the San Carlos Apache Tribe Receives That Quality of Water
Necessary to Cultivate Moderately Salt-Sensitive Crops
Fact: Nothing in the Community's settlement framework interferes
with the water quality injunction, which, as discussed above, concerns
only salinity from within the Gila River valley.
4. Standard for Construing the Globe Equity Decree
5. Previous Rulings by the Globe Equity Court and the Ninth Circuit
Confirm that UVD Pumping is ``Covered'' by the Decree
The Community has no specific comments on these sections of SCAT's
testimony, which recite SCAT's interpretation of certain laws and court
rulings. SCAT's generalized views on these topics are simply not
relevant to the Committee's consideration of the Arizona Water Rights
Settlements Act. As noted above, because SCAT retains all its existing
rights and claims, it can vigorously pursue the enforcement of such
rights and claims using such interpretations as a basis for its
actions.
B. The Arizona Gila River General Stream Adjudication
1. The San Carlos Apache Tribe Has Unadjudicated Federal Reserved
and Aboriginal Water Right Claims to Waters of the Mainstem and
Tributaries of the Gila River in the Arizona Gila River General Stream
Adjudication.
Fact: Under the Arizona Water Settlements Act, the Community will
not seek to increase the reserved rights available to it in the Gila
River. Nothing in the proposed legislation interferes with SCAT's right
or ability to attempt to increase its reserved rights through
litigation or separate settlement.
______
Gila River Indian Community,
Sacaton, AZ, October 31, 2003.
Hon. Lisa A. Murkowski,
Chairperson, Water and Power Subcommittee of the Senate Committee on
Energy and Natural Resources, Washington, DC.
Dear Senator Murkowski: Thank you for the opportunity to answer the
follow-up questions you submitted after the Water and Power
Subcommittee's September 30, 2003 hearing on S. 437, Arizona Water
Settlements Act. The answers to the questions you submitted are
attached.
Your interest and participating in the consideration of this
important legislation is greatly appreciated by the members of the Gila
River Indian Community (Community).
Please contact me if the Community can be of any assistance in the
Committee's deliberations on S. 437.
Best Regards,
Richard Narcia,
Governor.
[Enclosure.]
Answers to Questions Submitted to the Gila River Indian Community by
the Subcommittee on Water and Power, Senate Committee on Energy and
Natural Resources
Question. As you know, Secretary Norton has made wise water
management a focus of her tenure. Do you believe this settlement is
consistent with the Secretary's Water 2025 initiative?
Answer. Yes. The Interior Department's 2025 program features six
stated principles; which the Gila River Indian Community settlement
satisfies in the following manner:
1. Recognize and respect state, tribal, and federal water rights,
contracts, and interstate compacts or decrees of the United States
Supreme Court that allocate the right to use water. The Arizona Water
Settlements Act, S. 437, builds upon existing decrees and federal laws.
Most significantly, under S. 437 The Community and the United States as
The Community's trustee agree that they will no longer assert a
reserved water rights claim to the Gila River that exceeds 2 million
acre feet of water year. In addition, Title I of the Settlements Act
incorporates a settlement agreement approved by the United States
District Court of Arizona. This agreement resolves significant
conflicts over the repayment, operation, management of the Central
Arizona Project (CAP) and, in the process; makes available water needed
to settle long-standing Indian water rights claims. This additional
water will be available to avoid further litigation, and guarantee that
the United States satisfies its trust responsibility to Native American
communities in Arizona.
2. Maintain and modernize existing water facilities so they
continue to provide water and power. The Settlement Act will provide a
dependable revenue-stream to provide for the rehabilitation and
completion of the portions of the San Carlos Irrigation Project that
were promised to the Community over a half a century ago.
3. Enhance water conservation, use efficiency, and resource
monitoring to allow existing water supplies to be used more
effectively. There are broad-ranging beneficial environmental impacts
from The Settlement Act. First, the Settlement Act resolves the GRIC's
ancient claims to water without having to rely on developing new
sources of water but instead by using existing sources of water from
Indian and non-Indian parties to the agreement, including extensive re-
use of waste water as a water management tool. Second the Settlement
Act provides adequate supplies of water for non-Indian water users up-
stream and thereby reduces the incentive to pump groundwater and
encourages the State to store groundwater by lowering the cost of CAP
water, encouraging CAP water use over groundwater use. Finally, by
providing certainty to local, state and tribal leaders, as well as
industry and citizens, concerning future water use in Arizona, the
Settlement Act provides the missing element of a coherent, long-term
water framework for the State's future to enable the State to
effectively manage on a long-term basis increasingly scarce water
resources.
4. Use collaborative approaches and market based transfers to
minimize conflicts. The settlement is a comprehensive agreement
negotiated over the last 13+ years among hundreds of individuals
representing state, local, Native American, agriculture and industry
stakeholders in Arizona and the United States Government. It settles
ancient disputes over water rights, thereby allowing the United States,
the State of Arizona, and the numerous Central Arizona Project (CAP)
water users in Arizona including the tribes to avoid costly and
protracted litigation of water rights and damage claims. It provides
certainty to local, state and tribal leaders, as well as industry and
citizens, concerning future water use in Arizona, thereby furnishing
the missing element of a coherent, long-term water framework for the
State's future to enable the State to effectively manage on a long-term
basis increasingly scarce water resources.
5. Improve water treatment technology, such as desalination, to
help increase water supply. The settlement makes available additional
water for valley cities and town, through leases, exchanges and
reclamation agreements--including state-of-the-art waste water
desalination projects--among the tribes and the numerous non-Indian
water users in central Arizona and therefore provides increased
certainty to existing users regarding rights to water allocated under
the act.
6. Existing water supply infrastructure can provide additional
benefits for existing and emerging water needs. The water resource and
infrastructure central to the settlement agreement is the 336-mile
long, Central Arizona Project (CAP), a system of aqueducts, tunnels,
pumping plants and pipelines that is the largest single source of
renewable water supply in Arizona. Its primary purpose is to help
Arizona conserve its scarce groundwater by importing water from the
Colorado River, which is renewed annually by rainfall and snowmelt. The
federal government, the State of Arizona and the Central Arizona Water
Conservation District (CAWCD), which operates the CAP, have long
disputed how CAP water should be allocated. The settlement among these
parties resolves, once and for all, the allocation of CAP water, which
will enable all CAP water users and State water authorities to plan for
future water needs and economic development in Arizona and will provide
a quantity of CAP water and infrastructure water delivery improvement
that the Secretary of the Interior may use to resolve Indian water
rights claims.
Question. As you are aware, the Gila River originates in New Mexico
where it is an important source of water to the State. Can you explain
the steps you have taken to coordinate this settlement with the rights
and claims the State can assert under existing law?
Answer. As you are aware, New Mexico water users are implicated in
the ongoing Globe Equity 59 enforcement proceeding in the United States
District Court in Arizona. The Community has reached an agreement that
incorporates Virden valley wafer users into our effort to settle the
claims raised by the Community in that litigation. The Community was
very pleased that the witness representing the State of New Mexico
testified that the UVD settlement incorporated in H.R. 885 is a ``fair
and reasonable compromise.''
The Community also recognizes that the federal law that authorized
the CAP also required an exchange on The Gila River to benefit New
Mexico. The Community is engaged with appropriate Arizona and New
Mexico parties in a diligent effort to address all of the concerns and
objectives raised by the state of New Mexico. The Community believes
that all of the issues raised by the State of New Mexico in these
discussions can and will be resolved.
The Community also testified before the Committee that it is
willing to address any additional interstate issues that may arise in
the congressional deliberations over this bill. Governor Richard Narcia
has directed the individuals representing the Community to give these
matters their full and immediate attention and resolution.
Question. S. 437 relies on utilizing the Colorado River Lower Basin
Development Fund as a guaranteed off-budget funding source to pay the
costs associated with the Community's water rights settlement, other
Indian water rights settlements, and other costs that will assist
Indian tribes with putting their water rights to beneficial use.
How important is this funding mechanism to implementation of the
settlements in the bill?
Answer. The use of the Lower Colorado River Basin Development Fund
(LCRBDF) is absolutely fundamental to the Gila River Indian Water
Rights Settlement Agreement (Settlement Agreement) as well as the other
settlements and stipulations that are included in or contemplated by S.
437.
1. Obtaining the benefits of the Settlement Agreement immediately.
In general, Indian water rights settlement legislation only becomes
effective when the federal government has fully appropriated its share
of the funds called for by the settlement. This process is both
impractical and unworkable with respect to the Settlement Agreement
because it is the largest Indian water rights settlement ever presented
to Congress and because it affects millions of Arizona citizens. As a
result, it is impractical to appropriate millions of dollars for the
Settlement Agreement every year without obtaining the reciprocal
benefit of the Community's waivers until the Settlement Agreement is
fully funded. It is also unworkable to make millions of Arizona
citizens wait for the Settlement to be fully-funded before the
Settlement Agreement become enforceable.
Relying on the LCRBDF avoids both of these problems because it
provides the only practical means for the Community to give-up its
reserved water right and other claims in exchange for a revenue stream
that vests immediately and that is guaranteed. In other words, while
the Community will not immediately receive all of the money provided in
the settlement agreement, as long as the other conditions of
enforceability are met, much of the federal revenue stream will be
guaranteed as a matter of explicit federal law. As the Community made
clear in its testimony to the Committee, the entire federal financial
contribution to the Settlement Agreement will be used to provide water
to the Community's land, the facilities to utilize that water, or to
assist with paying the costs associated with using water on the Gila
River Indian Reservation.
2. Implementing and resolving the lawsuit involving the Central
Arizona Project (CAP). The funding mechanism is also an important
component of ensuring that the CAP portions of the legislation in Title
I will operate as intended. Title I of S. 437 incorporates the
framework of a stipulation approved by U.S. District Court of Arizona
in Central Arizona Water Conservation District v. United States, (Civ.
95-625-TUC-WDB-FH and Civ. 95-1720-PHX-FHC). This lawsuit involves a
controversy concerning the use, allocation, and cost of water delivered
by the CAP. Through the stipulated settlement, as incorporated in Title
I of S. 437, The United States reserves 47% of the CAP water supply,
federal government entered into a stipulation to resolve certain
disputes involving the CAP, including for Indian water settlements.
Through such settlements, Indian tribes give up free ``reserved right''
water supplies for an out-of-basin supply of CAP water. The stipulation
recognizes that without a ``firm'' funding stream to address the
Operation, Maintenance, and Replacement cost associated with CAP water
delivered to Indian tribes, it will be difficult to obtain additional
settlements with Indian tribes and it is unlikely that Indian tribes
will be able to actually utilize the portion of CAP water reserved for
their use by the stipulation.
3. Settling other Indian water rights claims. Finally, the funding
mechanism of this bill is the strongest possible affirmation that the
federal government is serious about reaching a fair and binding
settlement with every Arizona Indian tribe that is willing to negotiate
in good faith. For the first time, the United States will be able to
negotiate with Indian tribes in Arizona knowing that if they are able
to reach a settlement, they will have the revenue, a certain quantity
of CAP water, and the resources to guarantee that the operation,
maintenance, and replacement costs associated with that water can be
paid for both for this generation and the next generation. In other
words, the use of the LCRBDF is necessary for both the settlements
included in S. 437 as well as subsequent settlements that are
contemplated by this legislation.
Appendix II
Additional Material Submitted for the Record
----------
San Carlos Apache Tribe,
San Carlos, AZ, September 18, 2003.
Hon. Pete V. Domenici,
Chairman, Hart Senate Office Building, Washington, DC.
Re: Arizona Water Settlement Act S. 437 and H.R. 885--San Carlos Apache
Tribe
Dear Senator Domenici: The San Carlos Apache Tribe respectfully
requests an opportunity to testify and answer questions during the
hearing currently proposed for September 30, 2003, at 10:00 a.m., and
all related future proceedings on the above referenced matters.
S. 437 adversely impacts the priority and reliability of our CAP
water supply and potential funding of the Central Arizona Project
Contract between the Tribe and the United States dated December 11,
1980.
It also unfairly allocates scarce federal water and financial
resources to the proposed settlement which leaves the United States
with inadequate ``wet'' water resources to meet the trust
responsibility to provide an adequate water supply for the permanent
Tribal Homeland for our Tribe and other Tribes in Arizona, and is
contrary to the Apache Treaty of 1852, 10 Stat. 979.
It interferes with our decreed rights under the Globe Equity No.
59, and active litigation in Federal and State Court on the Gila River
in Arizona and New Mexico.
We are grateful for your courtesy and respectfully ask that you
authorize your staff to arrange the details for our testimony with our
attorney, Joe P. Sparks, Sparks, Tehan & Ryley, P.C., 7503 First
Street, Scottsdale, AZ 85251, phone 480-949-1339 and fax 480-949-7587.
Yours truly,
Kathleen W. Kitcheyan,
Chairwoman.
______
Latham & Watkins, LLP,
Washington, DC, September 26, 2003.
Hon. Pete V. Domenici,
Chairman, Energy and Natural Resource Committee, Washington, DC.
Dear Senator Domenici: I am writing in support of the Gila River
Indian Water Rights Settlement which is included in Senate Bill 437
introduced by Senators Kyl and McCain.
The Gila River Settlement is the result of negotiations initiated
by Senator Kyl some six years ago during my tenure as Secretary of the
Interior. With support from the Department during both the Clinton and
Bush administrations, Senator Kyl has managed to achieve a consensus
supported by our Governor, the Arizona State Department of Water
Resources, and cities, towns and irrigation districts throughout the
State.
As you are well aware, the equitable resolution of Indian water
rights is always a complex, lengthy and difficult process; and that has
been especially true in this instance, given the extensive Gila River
claims grounded in both historical use and the reserved rights
doctrine. This settlement has been achieved through a long process of
give and take and it now represents a broad consensus of how our
limited water resources can he used and developed for the benefit of
all Arizonans.
I urge your favorable consideration of this settlement.
Very truly yours,
Bruce Babbitt.
______
Renaud, Cook & Drury, P.A.,
Phoenix, AZ, September 29, 2003.
Senator Lisa Murkowski,
U.S. Senate, Water & Energy Subcommittee, Washington, DC.
Re: Smith Farms Pretzer Land and Cattle v. MSIDD & CAIDD CV 2001-00924
Dear Senator Murkowski: I respectfully ask that this letter and its
testimonial exhibits * be considered by the Water & Energy Subcommittee
hearing on the Arizona Water Settlement Act bill (S. 437) scheduled to
begin on September 30, 2003 at 10:00 a.m. I represent a number of
plaintiffs who are involved in litigation in the Pinal County Superior
Court who are suing to prevent the relinquishment of their allocated
rights to Central Arizona Project water that is appurtenant to their
lands by Section 8 of the Reclamation Act of 1902, as confirmed by
decisions of the United States Supreme Court and by Arizona's supreme
court.\1\ The lead plaintiffs are John Smith and Norman Pretzer, the
president of plaintiff Pretzer Land & Cattle Company, Inc., who were
the presidents of Maricopa-Stanfield Irrigation and Drainage District
(MSIDD) and Central Arizona Irrigation and Drainage District (CAIDD),
when those districts signed a subcontract with Central Arizona Water
Conservation District (CAWCD) and the United States on November 21,
1983. These contracts were executed for the primary and only purpose of
delivering CAP water to these districts. MSIDD now has 87,142 irrigable
acres that are now qualified to receive reclamation water and CAIDD has
87,349 acres.
---------------------------------------------------------------------------
* The exhibits have been retained in subcommittee files.
\1\ Section 8 of the Reclamation Act of 1902 reads: ``The right to
use of water acquired under the provisions of the Act shall be
appurtenant to the land irrigated, and beneficial use shall be the
basis, the measure, and the limit of the right.'' Nebraska v. Wyoming,
325 U.S. 589, 65 S.Ct. 1332 (1945), after quoting from this section 8
of the Reclamation Act, decided that the rights to reclamation water
that ``were acquired by the landowners in the precise manner
contemplated by Congress . . . are recognized . . . water rights of the
landowners'' and ``[t]o allocate those water rights to the United
States would be to disregard the rights of the landowners.'' 325 U.S.
at 615, 616, 65 S.Ct. 1349, 1350. California v. United States, 438 U.S.
645, 675, 98 S.Ct. 2935. 3001 (1978), held that not only does Sec. 8 of
the Reclamation Act of 1902 ``provide for the protection of vested
rights, but it also requires the Secretary [of the Interior] to comply
with state law in the `control, appropriation, use or distribution of
the water.' '' Arizona's supreme court in Day v. Buckeye Water Cons.
Drainage Dist., 28 Ariz. 466, 478, 237 P. 639, 640 (1925), decided that
the use by districts' landowners of water received from an irrigation
district ``is appurtenant to the lands.''
---------------------------------------------------------------------------
The Department of the Interior on March 24, 1983 (see 48 F.R.
12446) allocated CAP water. The allocations were 309,828 acre-feet
annually for Indian use and 640,000 acre-feet annually for municipal
and industrial use. Deducting expected evaporation per year of 75,000
acre-feet leaves, more or less, 475,000 acre-feet available for non-
Indian agricultural use. MSIDD was allocated 20.48 percent, which is
approximately 97,200 acre-feet per year, and CAIDD was allocated 18.01
percent, which is approximately 85,547 acre-feet per year. The reason
for this letter is the legislation under consideration is an attempt to
take away (respectfully, illegally) allocated water to MSIDD and CAIDD
irrigators that desire to keep their allocations. A loss of allocated
priority CAP water to lands in MSIDD and CAIDD will, in the future,
cause them to become dust bowls. See the attached copies of affidavits
of John Smith and Norman Pretzer, and in particular, their paragraph 6.
Messrs. Pretzer and Smith worked hard to bring CAP water to the
districts because they realized that without it the reduction in
groundwater levels would eventually cause farming to be impossible. Mr.
Smith, for MSIDD, on July 21, 1981, sent a letter to Mr. Eugene Heinz,
regional director, Lower Colorado Regional Office, U.S. Bureau of
Reclamation, that enclosed an application for a loan to provide part of
the funds for a canal from the CAP Canal to land in MSIDD. This letter
reads ``that the construction of the irrigation distribution system
project'' would ``deliver urgently needed Colorado River water to the
District from the facilities of the Central Arizona Project.'' This is
consistent with the purpose of the Boulder Canyon Project Act that
authorized construction of the Central Arizona Project that was ``[f]or
the purpose of furnishing irrigation water and municipal water supplies
to the water-deficient areas of Arizona. . . .'' Mr. Smith's such
letter was followed by a report by the DOT's regional director that
approved the application that recognized that CAP water is to serve as
a replacement water supply, thus decreasing the rate of groundwater
overdraft currently being experienced. CAIDD made a similar
application.
With the help of the United States, MSIDD in 1984 issued general
obligation unlimited tax bonds in the sum of $26,000,000 and CAIDD
issued general obligation unlimited tax bonds in the sum of $22,700,000
in 1984 that paid approximately 20 percent of the cost of construction
of their respective canals from the CAP Canal to their districts.
Messrs. Smith and Pretzer, for their districts, executed the necessary
bond documents and also, on November 21, 1993 (the same date they
executed the above-referenced subcontracts) executed 9(d) contracts
with the Department of the Interior for repayment of monies lent by the
United States for approximately 80 percent of the construction of the
districts' respective canals. Since completion of the CAP canal and its
features and MSIDD's and CAIDD's canal, MSIDD and CAIDD have used all
of the CAP water that was allocated to their Partners in 1983 by the
Department of the Interior.
The attached affidavits also explain the irreplaceable value of the
right of irrigators in MSIDD and CAIDD, when they no longer desire to
farm, to convert 1 acre-foot per municipal and industrial purposes that
includes development for subdivisions.
The 1983 allocations provided 173,100 acres of surface CAP water
for irrigation to the Gila River Indian Community (GRIC) per year. GRIC
does not use all of this water. The last version of the Arizona Water
Settlement Act that I have seen provides GRIC with approximately
102,000 acre-feet of priority CAP water per year and approximately
95,500 acre-feet of priority CAP water per year to other tribes that is
in excess of their 1983 allocations of priority CAP water. The primary
source of this water is water allocated to MSIDD and CAIDD in the 1983
allocations. The Arizona Water Settlement Act does not limit this
priority CAP water taken away from MSIDD and CAIDD farmers for
irrigation use or for municipal and industrial use by Indians on their
reservations because it will not be used on their reservations. It will
be used for leasing of water by the tribes, primarily for use in the
greater Phoenix area by municipalities and water companies.
Unfortunately, neither the Arizona Water Settlement Act nor any other
documentation that is in existence limits the leasing price by the
Indians. I have read articles that could be as high as $1,000 per acre-
foot per year. For all I know, the Indians will charge even more. Thus,
the contemplated legislation could cause the Indian tribes to become
richer than oil owner sheiks at the expense of landowners in the Pinal
County Irrigation District served by MSIDD and CAIDD.
It is doubtful that GRIC needs more surface water for irrigation or
for municipal and industrial use on the reservation than it received in
1983 allocation of 173,100 acre feet per year. However, if it does need
more CAP water for use on its reservation, then this need should be
fairly received from all existing users of CAP water and not primarily
from landowners in MSIDD and CAIDD, where farming has been in existence
for decades. There should be a reasonable and fair balance of the use
of CAP canal water that will prevent most of Final County being no more
than a dust bawl when all of CAP canal water is being used by others.
I respectfully remind you that when the Secretary of the Interior,
Gail Norton, Esq., attempted to take away CAP water from the Imperial
Irrigation District, United States District Court Judge Thomas J.
Whelan for the San Diego District Court on March 18, 2003 granted a
preliminary injunction that restrained her and the United States from
taking away CAP water that was being supplied by the Imperial
Irrigation District for, the beneficial use of its irrigators.'
Plaintiffs' position is if there is to be legislation that provides
more water to Indians, that legislation should be limited to water for
irrigation use or for municipal and industrial purposes on the
reservation and not elsewhere, and it should protect the rights of
those farsighted irrigators in MSIDD and CAIDD who wish to retain their
precious ``gold,'' CAP surface water for a supplement to their farming
and for municipal and industrial uses when they no longer desire to
farm.
Very truly yours,
J. Gordon Cook.
______
City of Tucson,
Tucson, AZ, September 30, 2003.
Senator Lisa Murkowski,
Chair, Subcommittee on Water and Power, Committee on Energy and Natural
Resources, U.S. Senate, Dirksen Senate Building, Washington,
DC.
Senator Ben Nighthorse Campbell,
Chair, Committee on Indian Affairs, U.S. Senate, Hart Senate Building,
Washington, DC.
Dear Senators Murkowski and Campbell: The Mayor and Council of the
City of Tucson strongly endorse and urge early passage of S. 437, the
Arizona Water Settlements Act. The Act would ratify and implement the
largest water settlements in Arizona history, resolving long standing
disputes between the State of Arizona and the United States concerning
the Central Arizona Project (``CAP'') and settling two significant
Indian water claims cases. Title I of the Act is important to Tucson
because it resolves the division of the CAP water between Indian tribes
and non-Indian water users and confirms the amount of the State's
repayment obligation for construction of the CAP. Tucson was not
involved in the negotiation of Title II, the Gila River Indian
Community Water Settlement, but the City supports this settlement as
part of the larger water settlement package contained in the Act. Of
particular importance to the City of Tucson is Title III of the Act,
which would amend the Southern Arizona Water Rights Settlement Act of
1982 so that the 1982 settlement between the Tohono O'odham Nation, the
City of Tucson and others could, at long last, be implemented.
title i
Title I of the Act deals with the repayment of the allocable costs
of construction of the CAP by Arizona non-Indian beneficiaries and the
division of CAP water between Arizona Indian tribes and non-Indian
water users. Approximately 47% of the water will be allocated to Indian
tribes and 53% will be allocated to non-Indian water users. Allocation
of the water to Indian tribes is an important element of the settlement
of pending Indian water rights claims. Title I contemplates that
approximately 294,000 acre-feet of non-Indian agricultural (``NIA'')
priority water will be relinquished by CAP NIA subcontractors and be
available for reallocation. Of the relinquished water, 197,500 acre-
feet will be used by the U.S. for Indian water settlements, and the
remaining 96,295 will be allocated to the Arizona Department of Water
Resources (``ADWR'') for future allocation to non-Indian municipal and
industrial (``M&I'') users in Arizona. Title I also assures the
immediate allocation of currently un-contracted CAP M&I water to
various M&I providers as recommended by the ADWR.
In addition, Title I of the Act confirms the agreement between the
U.S. and the Central Arizona Water Conservation District (``CAWCD'')
that the obligation of CAWCD to repay the allocable costs of the CAP
construction is $1.65 billion.
Until the Central Arizona Project brought Colorado River water to
Southern Arizona, the City of Tucson was one of the largest cities in
the world entirely dependent on groundwater. Tucson holds the largest
entitlement to CAP M&I water and is using that water to significantly
reduce groundwater pumping in the Tucson basin. Over the next decades,
the growth and economic health of Tucson will be depend to a large
degree on the availability of CAP water to the City. Enactment of Title
I will assure that Tucson receives an additional allocation of 8,206
acre-feet of CAP M&I water. In addition, the City will have the
opportunity to seek from the ADWR a reasonable share of the 96,295
acre-feet of CAP NIA priority water that in the future will be made
available to M&I users. As the holder of the largest allocation of CAP
M&I water, the City of Tucson has been paying millions of dollars in
CAP capital charges toward satisfying the CAWCD's repayment obligation
and has a strong interest in having the amount of that obligation
clearly established. For all of these reasons, the City strongly
supports the enactment of Title I of the Act.
title iii
In 1975, the Tohono O'odham Nation (then known as the Papago Tribe)
and the United States filed suit against the City of Tucson and other
water users in the Tucson basin claiming damages and seeking to enjoin
groundwater pumping by the City and others in the basin. In 1982,
Congress passed the Southern Arizona Water Rights Settlement Act of
1982 (``SAWRSA'') to settle the water rights claims of the Nation in
the Tucson basin. (The two portions of the Nation in the Tucson basin
are the San Xavier District and the Eastern Schuk Toak District.)
Subsequently, Indian allottees in the San Xavier district of the Nation
objected to certain aspects of the settlement and opposed dismissal of
the pending litigation. Consequently, implementation of SAWRSA did not
occur.
The San Xavier allottees objected to the 1982 settlement because
the benefits of that settlement had not been divided between the Nation
and the individual Indian allottees. During the past six years, the
allottees and the Nation have negotiated an agreement for such a
division and have worked with the City of Tucson and others to bring
the settlement up to date.
The basic elements of the 1982 settlement remain in place but are
modified as follows:
In the initial allocation of CAP water, the Nation had
received 37,800 acre-feet for use in the Tucson basin. The 1982
settlement added 28,200 acre-feet of water to be obtained by
the United States for use by the Nation but did not identify
the source of that water. Under S. 437, the United States will
use a portion of the relinquished NIA agricultural subcontract
water to supply the 28,200 acre-feet of additional water called
for in the 1982 settlement.
Provisions have been added to allow the Nation to store
water underground consistent with the underground storage
provisions that were added to Arizona law after 1982.
The 1982 Act empowered the Nation to lease water for 100
years for use within the Tucson Active Management Area. The
amendments in Title III allow the Nation to lease water for use
anywhere in the CAWCD service area so long as Tucson area users
are given a right of first refusal.
The 1982 Act allowed the Nation to pump not more than 10,000
acre-feet per year of groundwater in the San Xavier District.
The amendment in Title III provides, as a condition of the
settlement, for the adoption by the Arizona Legislature of a
program to protect San Xavier groundwater from new groundwater
wells near the San Xavier borders. This program would be
similar to the state's current well spacing and protection
program for areas outside Indian reservations.
The Nation's receipt of the additional water and many of the other
benefits of the settlement will only occur after the dismissal with
prejudice of pending water rights litigation.
conclusion
For almost thirty years, the pendency of major Indian water claim
litigation has been a threat to the long-term growth and stability of
the Tucson area. Because of the importance of resolving these water
claims, the City of Tucson and other state and local entities have made
significant contributions to the SAWRSA settlement:
Water--In the initial allocation of CAP water, the Nation
received 37,800 acre-feet for use in the Tucson basin. The 1982
settlement added 28,200 acre-feet of water to be obtained by
the United States for use by the Nation. The City of Tucson
contributed 28,200 acre-feet of effluent to the United States
to assist the U.S. in obtaining the additional water for the
Nation.
Funds--The 1982 settlement requires the U.S. to pay the
costs of providing the 37,800 acre-feet of CAP water and the
28,200 acre-feet of additional water. For this purpose, a Co-
operative Fund of $10.5 million was established, to be funded
50% by the U.S. and 50% by local interests. The City of Tucson
contributed $1.5 million to the Cooperative Fund; the State of
Arizona contributed $2.75 million and Tucson area mines and
Farmers Investment Company contributed $1 million.
Enactment of Title III, the amended Southern Arizona Water Rights
Settlement Act Amendments, will ensure the dismissal of the water
claims litigation of the Nation and the San Xavier allottees. The
entire Arizona Water Settlements Act is a matter of the highest
importance to the City of Tucson and we urge its enactment.
Sincerely,
Robert E. Walkup,
Mayor.
______
Zuni Tribe,
Zuni, NM, November 12, 2003.
Senate Energy and Natural Resources Committee, Water and Power
Subcommittee,
Dirksen Senate Office Building, Washington, DC.
Senate Indian Affairs Committee,
Hart Senate Office Building, Washington, DC.
House Committee on Resources, Subcommittee on Water and Power,
Longworth House Office Building, Washington, DC.
Dear Chairman Domenici, Campbell, and Calvert and Ranking Members
Bingaman, Inouye, and Napolitano: I am writing to express support for
the Gila River Indian Community's efforts to reach a comprehensive
settlement of its water rights as provided in S. 437 and H.R. 885, the
Arizona Water Settlements Act. Title II of the proposed legislation is
the Gila River Indian Community Water Rights Settlement Act of 2003.
As you know, the Zuni Indian Tribe Water Rights Settlement Act of
2003, P.L. 103-34, is the most recent Indian water settlement enacted
by Congress and, like S. 437, settles water rights claims in the State
of Arizona. Our Zuni settlement is unique because of the limited
function of the Arizona Reservation as the site for some of our most
significant religious practices. However, because the Gila River
settlement contains certain provisions that are similar to those found
in the Zuni water settlement legislation, I wanted to offer a few
thoughts for your consideration.
Similar to S. 437, the Zuni water settlement legislation contains
certain waivers of claims against the United States and other parties
(including certain water quality claims), limitations on Arizona lands
that can be placed into trust status absent subsequent acts of
Congress, and limited waivers of sovereign immunity. During the course
of the Zuni water settlement negotiations, Zuli's water rights
negotiation team and the Tribal Council were faced with some very
difficult, even painful choices, about how to proceed. Zuni deliberated
long and hard about these and other provisions and concerns.
Ultimately, however, my Tribe determined that the overall benefits of
its settlement far outweighed the difficulties presented by these
concessions.
The Gila River Community's settlement contains somewhat similar
provisions. We are aware from our own experience of the difficult
choices the Community faced in working to reach a settlement that it
and the other Arizona parties could support. These decisions require a
great deal of soul-searching. Under the leadership of Governor Richard
Narcia and others, the Gila River Indian Community has arrived at a
settlement that it believes furthers its interests and goals. In my
view, Congress should defer to the Community's decisions on these
difficult matters, much as it deferred to Zuni's determination that our
settlement, taken as a whole, was in our best interest.
Zuni also faced concerns raised by other parties that our
settlement might impede their own settlement efforts or set a harmful
precedent. However, each tribal government must exercise its powers of
self-determination to make choices based upon its own needs, and
circumstances and decisions will differ from one tribe to another. In
that regard, the decisions (and, perhaps, concessions) of the Zuni
Tribe or the Gila Community should not be viewed as restricting other
tribes or the federal government from making different choices or
pursuing different kinds of settlements based on their own needs and
circumstances. Each settlement is unique. Zuni strongly supports the
efforts of its neighboring tribes in Arizona and New Mexico to settle
their water rights claims where such a settlement is desired. We were
also encouraged to hear that Governor Narcia has indicated he is open
and receptive to meeting with the San Carlos Apache Tribe, and we
support those efforts.
The Zuni Tribe wishes specifically to express its support for the
Navajo Nation's suggestion that means for meeting the domestic water
supply needs of Window Rock, Arizona communities should also be
incorporated within the framework established by the proposed
legislation. There is no more fundamental a need for water than that
used for drinking, hygiene, and other domestic purposes. I have
indicated to President Shirley that we support this important
objective, and I deeply hope that a means for accomplishing this end
will soon be produced.
Finally, the Zuni Tribe is also very encouraged to hear that there
is a consensus that the consideration of the Arizona Water Settlements
Act provides an opportunity to fulfill New Mexico's right to increase
its use of the Gila River by 18,000 acre-feet per year, as promised by
the 1968 Colorado River Basin Development Act. The Zuni Tribe supports
the State of New Mexico's effort to fulfill this long-awaited promise.
Thank you for providing me with the opportunity to express support
for this legislation and the Gila River Indian Community's efforts to
settle their water rights.
Sincerely,
Arlen P. Quetawki, Sr.,
Governor.
______
Joint Statement of Austin Nunez, Chairman, San Xavier District Council
and Julie Ramon-Pierson, President, San Xavier Allottees Association
Chairman Murkowski, Chairman Campbell, and member of the
committees, thank you for the opportunity to provide written testimony
for the record on S. 437 and H.R. 885, the Arizona Water Settlement
Act.
Title III of the Arizona Water Settlements Act contains amendments
to the Southern Arizona Water Rights Settlement Act of 1982, P.L. 97-
293, 96 Stat. 1261 (1982). These amendments are crucial to finalizing
and implementing the Southern Arizona Water Rights Settlement Act
(SAWRSA). The San Xavier District of the Tohono O'odham Nation, and the
San Xavier Allottees Association, wholeheartedly support the enactment
of the Arizona Water Settlements Act, including Title III, the
amendments to SAWRSA.
i. brief history of the san xavier water rights issue
Our ancient Tohono O'odham village of Wa:k has been located on the
banks of the Santa Cruz River south of Tucson since time immemorial. In
the Tohono O'odham language, ``Wa:k'' means ``place where the water
goes under.'' This is a reference to the fact that the reach of the
Santa Cruz River at and above the village of Wa:k flowed perennially,
but sank into the sand just below the village during certain parts of
the year. The River disappeared due to certain geologic conditions at
this point.
The San Xavier Indian Reservation was established by Executive
Order in 1874 specifically to protect the lands and resources of our
Wa:k Village from white settlement and appropriation. The Main (Sells)
Papago Reservation was not established by Executive Order until 1916.
The two executive order reservations are not adjacent. In 1937 the
Papago Tribe (now Tohono O'odham Nation) adopted a constitution under
the Indian Reorganization Act of 1934, which incorporated the San
Xavier Reservation as one of eleven districts (local units of
government) of the Papago Tribe. At no time was title to the lands and
resources of the San Xavier Reservation ever conveyed to the Papago
Tribe or the Tohono O'odham Nation.
The perennial water supply for our village was used for domestic
water supply, livestock and approximately 2300 acres of irrigated
agriculture. River flows began to diminish as early as the 1890s due to
non-Indian appropriations of surface flows and groundwater pumping. The
River finally disappeared completely in the 1960s due primarily to the
overdrafting of groundwater by the City of Tucson. The groundwater
level on our Reservation dropped steadily until we had to completely
abandon irrigated farming in 1986 because our irrigation wells became
unproductive. The actual damages to our community and our community
members and farmers resulting from the loss of our agricultural economy
and the destruction of approximately 3500 acres of native mesquite and
cottonwood forest in the river floodplain have never been computed or
compensated.
The case of United States v. Tucson was filed in 1975 to enjoin the
City from continuing to appropriate and deplete our groundwater supply.
It was filed as a class action by the United States as Indian trustee
on behalf of the Papago Tribe and all individual Indian trust allotment
landowners on the San Xavier Reservation, and included two named class
representative plaintiffs. 98% of the land with appurtenant water
rights encompassed by the litigation is individually owned. The 1982
Southern Arizona Water Rights Settlement Act was intended to resolve
the litigation. It was unsuccessful because the individual Indian
allotment landowners were not included in the settlement negotiations,
and insufficient benefits were allocated to the San Xavier District and
the landowners in the settlement. The class action representative
plaintiffs refused to consent to the dismissal of United States v.
Tucson, and initiated the negotiation of amendments to SAWRSA. The
landowners also filed two additional lawsuits to protect and fully
assert their claims-- Alvarez v. Tucson and Adams v. United States. All
three lawsuits will be dismissed to finalize and implement SAWRSA as
amended.
The individual landowners, the San Xavier District and the Tohono
O'odham Nation government (formerly the Papago Tribe) first negotiated
a resolution of their differences, and then entered into broader
negotiations with other affected parties for acceptable amendments to
SAWRSA that benefit everyone. These amendments are Title III of the
Arizona Water Settlements Act. The major provisions of both the 1982
SAWRSA and Title III are summarized in the testimony of Vivian Juan-
Saunders, Chairperson of the Tohono O'odham Nation.
ii. san xavier district and allottees' position
At the outset of negotiations to amend SAWRSA, the San Xavier
Allottees Association and the San Xavier District identified the
following negotiation objectives:
A. Permanently restore and stabilize the groundwater table
beneath the San Xavier Reservation.
B. Restore the flow of water in the Santa Cruz River on the
San Xavier Reservation.
C. Restore up to 3500 acres of the Santa Cruz River riparian
habitat, including the historic mesquite and cottonwood forest.
D. Confirm a ``first right of beneficial consumptive use'' to
a total of 35,000 acre-feet annually of SAWRSA CAP water and
groundwater to the San Xavier District subject to a Water
Management Plan and regulation under the Tohono O'odham Nation
Water Code. The San Xavier District, the San Xavier Cooperative
Association and the allottees could pump or take direct
delivery of this water for beneficial consumptive uses on the
San Xavier Reservation only.
E. Any part of the 35,000 acre-feet annual allocation not
consumptively used by the District Coop Farm allottees on the
San Xavier Reservation could be used for recharge to
Reservation aquifers.
F. 15,000 acre-feet of SAWRSA CAP water would be subject to
the use and allocation of the Tohono O'odham Nation under the
Nation's Water Code, and could be leased off-Reservation for
the sole financial benefit of the Nation on a call-back basis.
Any part of the 35,000 acre-feet of annual allocation to the
District not required by the District Coop Farm allottees could
also be leased for the financial benefit of the Tohono O'odham
Nation.
G. The Tohono O'odham Nation would receive in lieu
groundwater recharge credits of 10,000 acre-feet annually, plus
direct recharge credits for whatever amounts of District and
Nation SAWRSA CAP water is recharged, less the amount of
groundwater consumptively used within the District. Such
credits could be used or sold by the Nation for its sole
financial benefit.
H. The Nation could use up to 16,000 acre-feet of SAWRSA CAP
water not required by the San Xavier or Schuk Toak Districts
for the San Lucy Farm.
I. ASARCO to stop pumping San Xavier Reservation groundwater
pursuant to its leases and use SAWRSA CAP water provided by the
Nation as a substitute water supply.
J. The 9B Farm would be cashed-out to create a fund
representing past damages for trespass to San Xavier water
rights. The fund would be held in trust by the San Xavier
District to be used for the benefit of its members, residents
and allottees. The fund would be used for agricultural and
water development projects, and social services for San Xavier
District members, residents and allottees.
K. The United States' obligations to rehabilitate and extend
the San Xavier Cooperative Farm based upon an extended Farm of
2289 acres could be carried out by or under contract with the
Bureau of Reclamation, or contracted to the San Xavier
Cooperative Association.
L. $5 million each for working capital for the San Xavier
Coop Farm and the Schuk Toak Farm would be provided from the
proceeds of leasing water to Tucson and the existing SAWRSA
Sec. 313 Cooperative Fund.
M. The Allottees District would have access to the Nation's
SAWRSA CAP water in addition to the Allottees' 35,000 acre-feet
of SAWRSA CAP water if additional water is required by the
District Coop Farm allottees for beneficial, consumptive uses
on the Reservation.
N. San Xavier Reservation groundwater and SAWRSA CAP water
recharge would be managed so as to guarantee a permanent supply
to the District allottees of the maximum possible quantity of
high quality local groundwater.
O. Damages for non-delivery of SAWRSA CAP water would go to
the on Reservation users of such water.
P. Per capita distributions of any of the funds would be
prohibited.
Q. United States v. Tucson, Alvarez v. Tucson and Adams v.
United States would be dismissed pursuant to settlement
agreements and the SAWRSA amendments. The City of Tucson and
the other defendants would be asked to commit to a water
management plan for the Upper Santa Cruz River Basin that would
guarantee that the groundwater aquifer on and near the San
Xavier Reservation would not be depleted in the future.
R. The Nation and the Schuk Toak District would have the
right to pump a maximum of 3200 acre-feet of groundwater per
year in the Eastern Schuk Toak Reservation. The Nation would
acquire in lieu groundwater recharge credits for any water not
pumped. These credits could be sold by the Nation for use off-
Reservation.
Most of these objectives are met by the SAWRSA Amendments. Notably,
the objectives stated in items a, b and c will not be met. Although the
San Xavier District has undertaken a riparian habitat restoration
project in the Santa Cruz River, the restoration of river flows and
large areas of the native riparian habitat appears to be impossible.
These important resources and amenities have been permanently
destroyed.
iii. water rights ownership and allocations as between the tohono
o'odham nation and individual indian trust allotment landowners
The individual Indian trust allotment landowners on the San Xavier
Reservation, and the San Xavier District Council, opposed the dismissal
of United States v. Tucson and the implementation of the 1982 SAWRSA
primarily because the water rights ownership interests of the
individual Indian trust allotment landowners were not recognized in
SAWRSA and their right to use SAWRSA water supplies and groundwater on
their allotments was not expressly protected. Additionally, there was a
critical imbalance in the allocation of settlement benefits as between
the Tohono O'odham Nation on the one hand, and the Indian allotment
landowners and the San Xavier District on the other. Despite the loss
of the traditional Wa:k Village agricultural economy, the loss of
perennial flows in the Santa Cruz River, and the complete destruction
of the community's large native cottonwood and mesquite bosque and
riparian habitat, the settlement included no past damages for the
landowners or the community. The lack of an element of past damages in
the settlement has been remedied by giving the San Xavier District the
option to cash-out the federal obligation under the 1982 Act to build a
new, irrigated farm on the San Xavier Reservation to create a trust
fund to provide governmental services and economic development.
Sections 307(a)(1)(G) and 308(a), (b) and (c) of S. 437/H.R. 885
are intended to quantify and statutorily guarantee a just and equitable
distribution of water on the San Xavier Reservation and guarantee the
availability of SAWRSA Central Arizona Project water and local
groundwater to individual Indian trust allotment landowners for any and
all beneficial uses, although the Tohono O'odham Nation and the San
Xavier District will continue to exercise their respective jurisdiction
and authority under tribal law to regulate the use and allocation of
water on the Reservation. Although the authority of the Secretary of
the Interior under 25 U.S.C. Sec. 381 ``to secure a just and equal
distribution . . . [of water] among the Indians residing upon any such
reservations: . . . .'' is limited to ensuring a just and equal
distribution of water for irrigated agriculture, the intent of the
drafters of Section 307(a)(1)(G) is to ensure the availability of
SAWRSA settlement water to individual Indian trust allotment landowners
for any and all beneficial uses.
iv. groundwater protection
We are not confident that the water table will be restored and
stabilized on the San Xavier Reservation because of continuing
groundwater pumping by the City of Tucson in adjacent areas and because
of continuing regional groundwater decline. The Tohono O'odham
Settlement Agreement will implement SAWRSA as amended. Exhibit 8.8 to
the Settlement Agreement is a proposed concept for a Groundwater
Protection Program for the vicinity of the San Xavier Reservation to be
implemented under state law as part of the SAWRSA settlement. The
Tohono O'odham parties have not accepted all of the provisions of the
concept as described in Exhibit 8.8 at the time of introduction of S.
437/H.R. 884. We have proposed a different version of the Concepts for
Groundwater Protection Program, but it has not yet been accepted by the
other parties. Our position on the Groundwater Protection Plan is
attached to this testimony.
______
Memorandum of Luebben, Johnson & Young, LLP, Albuquerque, NM
Prior to March, the Tohono O'odham Nation SAWRSA Task Force had
never carefully reviewed or reacted to Exhibit 8.8 to the Tohono
O'odham Settlement Agreement. This is still an open issue. The TON
SAWRSA Task Force has drafted the following as an alternative concept
proposal for the SAWRSA Groundwater Protection Program.
Exhibit 8.8
concepts for groundwater protection program
The terms used herein shall have the meanings defined in paragraph
2 of the Tohono O'odham Settlement Agreement. In addition, the term
``Non-exempt Well'' means a well that is not an ``Exempt Well'' and the
term ``Replacement Well'' means a well no further than 660 feet from an
existing well being replaced that will not annually withdraw in excess
of the historical withdrawals from the original well or as that term is
defined in future ADWR well-spacing regulations if the distance of the
replacement well from the original well is less than 660 feet.
The basic elements of the Groundwater Protection Program
(``Program'') referenced in paragraph 8.8 of the Tohono O'odham
Settlement Agreement are as follows:
1. Written consent of the Nation shall be required for the
permitting of any new Non-exempt Well, for which the projected
10-feet-within-5-year drawdown contour (as determined by a
well-spacing analysis done under state regulations by ADWR)
intercepts the border of the San Xavier Reservation.
2a. In addition to the requirements of paragraph 1, an
applicant for a permit to drill a proposed well of over 300 gpm
[note: approx. 500 afa] capacity, or for a group of wells of
over 300 gpm total capacity, to be located within two miles of
the exterior boundaries of the San Xavier Reservation shall
submit to ADWR both of the following; or, in the alternative,
the Nation's written consent:
i. Evidence based on annual water level data
collected during the five years prior to the permit
application date showing:
I. if the proposed well is within one mile of
the Reservation, that the water levels at the
proposed well site(s) are declining at less
than an average rate of one foot per year; or
II. if the proposed well is within two miles
of the Reservation, but is further than one
mile from the Reservation, that the water
levels at the proposed well site(s) are
declining at less than an average rate of two
feet per year;
ii. Evidence showing that a projected 5-feet-within-
5-year drawdown contour does not intercept the border
of the San Xavier Reservation.
2b. In determining the average annual water level change at a
proposed well site and the projected drawdown effect of the
proposed well(s) for purposes of obtaining a permit under this
paragraph, the water-level effects of underground storage
facilities within the 2 mile limit and permitted recovery wells
within that limit, except the water-level effects at the site
of the proposed well of storage at said underground storage
facilities by or for the direct benefit of the applicant within
the 2 mile limit, shall be excluded.
2c. For purposes of this paragraph, if the same applicant
submits an application for a permit to drill a well within
eighteen months of a previous application, the applications
shall be aggregated in terms of capacity and considered as an
application for a group of wells.
3. Upon receiving an application for a permit to drill any
Non-exempt Well located within two miles of the San Xavier
Reservation, the ADWR shall mail to the Nation written notice
of the application along with a copy of thereof. The Nation
shall have 60 days after mailing of the written notice to file
an objection to the application. The grounds for an objection
are that the application fails to meet the standards required
herein or that the granting of the permit will violate these
standards. If objection is made, a hearing shall be held on the
application within 60 days of receipt of the objection. The
Nation shall be a party in such hearing. A recommendation based
on the hearing shall be made by the hearing officer within 30
days after the close of the hearing. Within 30 days of the
recommendation, the Director of ADWR (``Director'') shall
render his decision on the application. Any decision of the
Director granting or denying a permit after objection by the
Nation shall be subject to review by the Gila River
Adjudication Court by an aggrieved party filing an application
for review with the court within 30 days of mailing of the
written notice of the decision of the Director on the
application.
4. An applicant for a ``Replacement Well'' within two miles
of the San Xavier Reservation shall be exempt from the
requirements set forth in paragraphs 1 and 2 except that ADWR
shall give notice thereof and provide the opportunity to object
to the application and obtain review of the Director's decision
thereon as provided in paragraph 3.
5. An applicant for a permit to drill an Exempt Well shall be
exempt from the requirements set forth in paragraphs 1 and 2.
6. An applicant for a permit to drill a recovery well within
two miles of the exterior boundaries of the San Xavier
Reservation and within one mile of an underground storage
facility shall be exempt from the requirements set forth in
paragraphs 1 and 2 so long as the well is permitted only to
recover storage credits accrued for water stored at that
facility. The San Xavier Reservation shall have the same status
as a service area and the Nation shall have the same status as
a city, town, private water company or irrigation district
under A.R.S. Sec. 45-834.01.
7. This Program need not be described in detail in the SAWRSA
Amendments, but the enactment of state legislation implementing
the Program and authorizing ADWR's role in the Program will be
a condition precedent to the Enforceability Date.
8. The judgment approving the Tohono O'odham Settlement
Agreement should incorporate the salient provisions of this
Program and the settlement will be made contingent on the
passage of state legislation implementing the Program and
authorizing the Director to enforce the Program as part of an
approved Indian water rights settlement. Review of decisions of
the Director will be part of the continuing jurisdiction of the
Gila River Adjudication Court.
______
Statement of the Cities of Chandler, Glendale, Goodyear, Mesa, Peoria,
and Scottsdale, AZ
Chairman Murkowski, Chairman Campbell, and members of the
subcommittees, the Arizona Cities of Chandler, Glendale, Goodyear,
Mesa, Peoria and Scottsdale (``Cities'') appreciate the opportunity to
submit this testimony in support of Senate Bill 437 (``S. 437''). The
Cities collectively represent more than 1.6 million people within the
Phoenix metropolitan area of Maricopa County, Arizona. S. 437 is very
important to the Cities and other water users throughout Arizona.
S. 437 approves the settlement of ongoing disputes over the past
decade between the United States and Arizona interests concerning
Central Arizona Project (``CAP'') repayment and water allocation
issues. S. 437 also approves the settlement of long standing disputes
relating to the Gila River Indian Community water right claims. The
Gila River Indian reservation includes a large land area of
approximately 372,000 acres immediately south of the Phoenix
metropolitan area where the Cities are located.
S. 437 resolves these contested CAP repayment, CAP water allocation
and Gila River Indian Community water rights claims in a manner that is
fair and equitable to all parties. S. 437 is important to the Cities
and their future water management. It provides more certainty regarding
the Cities' future water supplies while settling complex and
contentious CAP and Indian water rights claims.
The Cities are contributing substantial financial and water
resources to the Gila River Indian Community as part of the Gila River
Indian Community Settlement. The City of Chandler is directly
contributing 4,500 acre-feet of reclaimed water annually to the Gila
River Indian Community as part of the Settlement. In addition, both
Chandler and Mesa are annually contributing up to 8,100 acre-feet of
additional high quality reclaimed water to the Gila River Indian
Community as part of the Settlement. The Cities have contributed
millions of dollars in treatment and delivery infrastructure to provide
this water to the Gila River Indian Community at no cost to the
Community or the United States. The other Cities are contributing tens
of millions of dollars to the Settlement by leasing CAP water from the
Community.
The Cities' consideration for the above contributions also includes
the benefits the Cities are receiving under Title 1 of S. 437. The
settlement of the CAP issues reflected in Title 1 of S. 437 is directly
connected to the settlement of the Gila River Indian Community water
rights claims.
Title 1 approves the reallocation of CAP water previously
designated for allocation to Arizona municipal and industrial
interests. Since the mid-1980's, 65,647 acre-feet of CAP water that was
designated by the Secretary of Interior for allocation to Arizona's
municipal and industrial sector has remained uncontracted. This
represents enough water to serve a population of nearly 300,000 people.
Despite the undeniable need for the water by Arizona's Cities and
Towns, this water has remained unallocated because of various disputes
between the United States and the Central Arizona Water Conservation
District over the CAP repayment obligation and allocation of CAP water
between Federal and non-Federal interests. S. 437 resolves those
disputes and provides a final allocation of CAP water between federal
and state interests in Arizona. Under Title 1 of S. 437, the Cities
each receive a specific allocation of the uncontracted municipal and
industrial CAP water, which is needed to serve their growing
populations.
In addition, the Cities' municipal and industrial CAP subcontracts,
like the Gila River Indian Community's CAP contract, will be expressly
recognized as permanent service contracts with the existing delivery
terms extended for 100 years. Title 1 of S. 437 also provides for the
future allocation of 96,295 acre-feet of agricultural priority water to
Arizona's municipal and industrial interests.
The settlement of the Gila River Indian water rights claims as
approved by S. 437 accomplishes many objectives. First, the Settlement
Agreement permanently settles all water rights claims of the Gila River
Indian Community to both surface water and groundwater, including all
appropriative rights, federal reserved rights and aboriginal rights.
Second, it resolves disputes as to groundwater pumping, land subsidence
and water quality. Third, it will provide the Gila River Indian
Community with a significant water right to develop the Community's
lands. Fourth, it will furnish the Gila River Indian Community with
adequate financial resources to allow for the beneficial and productive
use of the water resources provided by the Settlement. This settlement
also will allow the parties, Native American and non-Native American,
to plan for the future use and development of their water resources in
cooperation rather than in conflict, and with certainty rather than
uncertainty.
S. 437 also provides an additional 214,500 acre-feet of CAP water
to be allocated to Federal interests in the State. This represents a
significant transfer of water from non-Federal to Federal interests
within Arizona. However, the Cities recognize that the transfer of this
water will help resolve Indian water-rights claims, including the
claims of the Gila River Indian Community and other Native American
interests whose water rights claims have not yet been settled.
S. 437 also resolves significant claims against the federal
government, some of which involve only the federal government and the
Gila River Indian Community. S. 437 provides an important opportunity
for the federal government to meet its trust obligations to the Native
American communities involved while at the same time providing long
term certainty regarding available Central Arizona Project Water
(``CAP'') supplies to both Native American and non-Native American
interests in Arizona.
All parties to the CAP and Gila River Indian Community settlements
benefit by settling their claims rather than continuing with protracted
litigation. This settlement as approved by S. 437 provides extensive
and creative mechanisms to accomplish all the parties' objectives.
These mechanisms are unavailable through a court process. These
creative mechanisms include exchanging reclaimed water for some of the
Gila River Indian Community's Central Arizona Project Water and the
Cities leasing CAP water from the Community. The settlement also
includes the use of some state parties' water facilities to deliver
water designated for the Community under the Settlement. This
settlement provides for the parties to work together to accomplish
their respective water use objectives and needs rather than continuing
to devote substantial sums litigating over the nature and extent of CAP
water allocation rights and the Gila River Indian Community's water
rights.
The settlement of the CAP repayment and water allocation issues
allows the parties to plan adequately for the future by eliminating
uncertainty regarding available CAP water supplies and the Gila River
Indian Community's water rights claims. The problems that Senate Bill
437 resolves are serious problems, both for Arizona and the federal
government. S. 437 represents a fair settlement of the disputes over
the CAP repayment and water allocation issues, and the Gila River
Indian Community's water rights claims. We therefore urge your support
of S. 437 and appreciate the opportunity to provide our written
testimony to you.
______
Statement of John F. Sullivan, Associate General Manager, Water Group
Salt River Valley Water Users Association and Salt River Project
Agricultural Improvement and Power District
Chairman Murkowski, Chairman Campbell and members of the
committees, thank you for the opportunity to submit testimony in
support of S. 437, the Arizona Water Settlements Act. My name is John
F. Sullivan. I am the Associate General Manager, Water Group, of the
Salt River Project (``SRP''), a large multi-purpose federal reclamation
project embracing the Phoenix, Arizona metropolitan area. SRP is
composed of the Salt River Valley Water Users' Association
(``Association'') and the Salt River Project Agricultural Improvement
and Power District (``District''). Under contract with the federal
government, the Association, a private corporation authorized under the
laws of the Territory of Arizona, and the District, a political
subdivision of the State of Arizona, provide water from the Salt and
Verde Rivers to approximately 250,000 acres of land in the greater
Phoenix area. Over the past century, most of these lands have been
converted from agricultural to urban uses and now comprise the core of
metropolitan Phoenix.
The Association was organized in 1903 by landowners in the Salt
River Valley to contract with the federal government for the building
of Theodore Roosevelt Dam, located some 80 miles northeast of Phoenix,
and other components of the Salt River Federal Reclamation Project. SRP
was the first multipurpose project approved under the Reclamation Act
of 1902. In exchange for pledging their land as collateral for the
federal loans to construct Roosevelt Dam, which loans have long since
been fully repaid, landowners in the Salt River Valley received the
right to water stored behind the dam.
In 1905, in connection with the formation of the Association, a
lawsuit entitled Hurley v. Abbott, et al., was filed in the District
Court of the Territory of Arizona. The purpose of this lawsuit was to
determine the priority and ownership of water rights in the Salt River
Valley and to provide for their orderly administration. The decree
entered by Judge Edward Kent in 1910 adjudicated those water rights
and, in addition, paved the way for the construction of additional
water storage reservoirs by SRP on the Salt and Verde Rivers in Central
Arizona.
Today, SRP operates six dams and reservoirs on the Salt and Verde
Rivers in central Arizona, as well as 1,300 miles of canals, laterals,
ditches and pipelines, groundwater wells, and numerous electrical
generating, transmission and distribution facilities. The six SRP
reservoirs impound runoff from a 13,000-square mile watershed. The
water stored in these reservoirs is delivered via SRP canals, laterals
and pipelines to municipal, industrial and agricultural water users in
the Phoenix metropolitan area. SRP also operates approximately 250 deep
well pumps to supplement surface water supplies available to the
Phoenix area during times of drought. In addition, SRP provides power
to nearly 800,000 consumers in the Phoenix area, as well as other rural
areas of the State.
SRP holds the rights to water stored in its reservoirs, and for the
downstream uses they supply, pursuant to the state law doctrine of
prior appropriation, as well as federal law. Much of the water used in
the Phoenix metropolitan area is supplied by these reservoirs.
SRP fully supports the enactment of S. 437 in its entirety.
However, my testimony, offered today on SRP's behalf, is specifically
directed to Title II of the bill, authorizing the Gila River Indian
Community Water Rights Settlement.
The Gila River Indian Reservation was created by an Act of Congress
in 1859 and was enlarged by seven separate Executive Orders in 1876,
1879, 1882, 1883, 1911, 1913 and 1915. Currently, the Reservation
encompasses approximately 377,000 acres of land in central Arizona.
Most of the lands within the Reservation are located within the Gila
River watershed. The water rights appurtenant to these lands are
subject to a consent decree entered by the United States District Court
in 1935. The 1935 ``Globe Equity Decree'' adjudicated the rights to
water from the main stem of the Upper Gila River above its confluence
with the Salt River. The Decree entitles the United States, on behalf
of the Indians of the Gila River Reservation, to divert 300,000 acre-
feet of water annually from the Gila River. Historically, however, the
Indian Community has received, on average, only about 100,000 acre-feet
annually of its decreed entitlement, due to insufficient flows in the
Gila River at the Reservation's diversion point.
A small portion of the Gila River Indian Reservation lies within
the Salt River watershed, west of Phoenix and several miles downstream
from SRP's reservoirs. Many of these lands were added to the
Reservation in 1879. At that time, a group of Indians, commonly
referred to as the Maricopa Colony, was living there. Since some time
prior to 1900, these Indians diverted water from the Salt River for the
irrigation of approximately 1,000 acres.
In 1901, the federal government, acting on behalf of the Maricopa
Indians, brought suit in Arizona territorial court to stop nearby non-
Indian irrigators from interfering with the waters used by the Indians.
Some of the defendants named in the suit later became shareholders of
the Association, after its incorporation in 1903. On June 11, 1903,
Judge Kent issued the decree in United States v. Haggard, which
adjudicated the Maricopa Indians' right to irrigate approximately 1,080
acres of land with water from the Salt River. In 1917, the Haggard
decree was incorporated into the Benson-Allison decree, which also
adjudicated water rights for lands not included in the original decree,
located near the confluence of the Salt and Gila Rivers.
Other than the approximately 1,080 acres irrigated by the Maricopa
Colony, and included in the Haggard and Benson-Allison decrees, no
lands on the Gila River Indian Reservation have ever been directly
irrigated using Salt River water. Despite this fact, in the mid-1980s,
the Gila River Indian Community asserted claims for the Reservation in
the pending Gila River Adjudication to approximately 1.8 million acre-
feet of water annually from the Salt, Verde and Gila Rivers. More
recently, the Indian Community amended its claims and now asserts the
right to more than 2.7 million acre-feet of water annually from the
Gila River, its tributaries and groundwater. These claims, which far
exceed the combined annual flow of all of these rivers, are based on
the federal reservation of rights doctrine and largely encompass
potential future uses of water by the Indian Community on its
Reservation.
Thus far in the Adjudication, the Community's attempts to prosecute
its extremely large claims to the Salt and Gila Rivers have not met
with success. The Superior Court in the adjudication recently concluded
that the Community and the United States are estopped by a decision of
the United States Court of Claims, entered decades ago, from asserting
any claim to the Salt River other than for the 1,490 acres within the
Maricopa Colony. An earlier decision of the Superior Court would limit
Reservation lands within the Gila River watershed to their decreed
entitlement under the Globe Equity Decree. The Indian Community and the
United States have appealed both of these decisions of the trial court,
and the Arizona Supreme Court is presently considering whether to
accept review of these decisions. In the absence of the Settlement
before these Committees today, the matter is likely to continue in
litigation for some time. In the meantime, the uncertainty associated
with the potential magnitude of the Community's rights to water from
the Salt and Verde Rivers poses a threat to the rights of existing
appropriators, including SRP.
In order to alleviate this uncertainty and assure the dependability
of water supplies to the more than 3 million residents of Maricopa
County in central Arizona, SRP initiated water settlement negotiations
with the Indian Community and the United States in 1989. Over time,
neighboring water users joined the negotiations, which were often
complex and difficult. Fourteen years later, the Indian Community, the
United States and local interests including SRP, spurred on by the
leadership of Senator Kyl and former Secretary Babbitt, have reached a
comprehensive settlement of the Community's water rights claims,
benefiting water users throughout the Gila River Basin, in Maricopa,
Pinal and Yavapai Counties. The settlement is embodied in the
Settlement Agreement and legislation before these Committees today.
The Settlement resolves all outstanding water related litigation
between the Gila River Indian Community and the other settling parties
and settles, once and for all, the water rights of the Indian Community
to surface water and ground water in the Gila River Basin. I have
attached a summary of the components of the Settlement to my written
testimony. However, a few important points, pertaining to the
Community's use of Salt and Verde River water, will be discussed here.*
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* The attachments have been retained in subcommittee files.
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First. The Settlement recognizes the right of the United States,
the Community, its members and allottees under the Haggaa Decree, as
modified by the Benson-Allison Decree, to 540 miners inches of water
from the Salt River. The Settlement also confirms that such rights
shall be deemed fully satisfied by SRP's performance of its water
delivery obligations under the Contract between the United States and
the Salt River Valley Water Users' Association dated May 5, 1936, as
amended. This Contract, commonly referred to as the Maricopa Contract,
provides that SRP shall make available 5,900 acre-feet of water per
year for diversion and use on Reservation lands with rights under the
Haggard Decree, as modified by the Benson-Allison Decree.
Second. Under the Settlement, the Community also shall have an
annual entitlement to SRP stored water in an amount varying from zero
to 35,000 acre-feet, depending on SRP reservoir storage levels on May 1
of each year. The water will be transported to the Reservation via
SRP's water delivery system, subject to certain delivery system
capacity limitations specified in the Agreement. Water that is credited
to the Community on May 1 of each year, but is not used by April 30 of
the following year, may be carried over in storage for the Community's
subsequent use, up to a maximum amount, specified in the Agreement,
which may not be exceeded at any time. Moreover, in any single year,
the Community will not be entitled to order more than 45,000 acre-feet
total from the current year's entitlement and the Community's
entitlement to ``carry over'' water from prior years. The Community
will pay for the delivery of SRP stored water at 100 per cent of the
cost per acre-foot of stored water for SRP shareholders. The
Community's entitlement to SRP stored water will be phased in over a
period of five years, commencing in the year diet the Settlement
becomes enforceable.
Third. Subject to certain monthly and annual volume limitations,
SRP has agreed to take delivery of CAP water to which the Community is
entitled for use by SRP shareholders, in exchange for the storage of
the same amount of Salt and Verde River water in SRP reservoirs for
eventual use by the Community. This exchange is subject to the ability
of SRP to divert and beneficially use the CAP water to which the
Community is entitled. SRP will deliver exchange water ordered by the
Community via the SRP water delivery system only after determining that
the system capacity is not needed to fulfill water delivery obligations
of SRP that predate the Settlement.
Fourth. SRP has agreed to accept delivery of CAP water to which the
Community is entitled for direct delivery to the Reservation, via SRP's
water delivery system. The direct delivery of this water to the
Community also will be subject to the limits of SRP's water delivery
system capacity, as discussed in the previous paragraph.
Fifth. Phelps Dodge Corporation has offered to transfer to SRP its
right, title and interest in Blue Ridge Reservoir, including all rights
to water developed by operation of the reservoir. If SRP accepts Phelps
Dodge's offer and the transfer of water rights to SRP is accomplished
under Arizona law, then SRP will provide to the Community a portion of
the water stored behind Blue Ridge Reservoir, ranging from zero to 836
acre-feet annually, depending on reservoir storage levels in Blue Ridge
on May 1 of each year. Water that is credited to the Community on May 1
of each year, but is not used by April 30 of the next year will not be
available for the Community's use in subsequent years. If SRP accepts
Phelps Dodge's offer and obtains the right to water stored in Blue
Ridge, there also may be an opportunity for municipalities in water
scarce areas of Gila County, Arizona, to enter into agreements with SRP
for the use of some of this water.
Sixth. The Settlement permits the continued use by the Community of
water discharged into certain drain ditches by SRP, and provides for
the contribution by SRP of $500,000 toward the cost of easements,
construction, rehabilitation, operation and maintenance of these drain
ditches on the Reservation.
Seventh. In exchange for these and other benefits to the Community,
its members and allottees, the Settlement provides for the execution of
a permanent, comprehensive waiver of the claims of these parties, and
the United States on their behalf, for water rights, injuries to water
rights and injuries to water quality, among others, as provided in
exhibits to the Settlement Agreement. Of greatest significance, the
waiver of all water rights claims by the Community, its members and
allottees, and the United States on their behalf, extends to all water
users in the Gila River Basin, including users who are not parties to
the Settlement Agreement. Other parties to the Settlement Agreement
will also execute waivers and releases of claims that these parties may
have against the Community, its members and allottees, or the United
States on their behalf, as specified in the Settlement Agreement.
In conclusion, we support the passage of S. 437, which is the
culmination of the efforts of many people, over almost 15 years, to
resolve these difficult issues regarding the allocation of an extremely
scarce resource. Enactment of S. 437 is crucial to achieving certainty
among users in central Arizona regarding water rights, and the
dependable allocation of water supplies for the foreseeable future. We
therefore strongly urge these Committees to recommend passage of the
bill to the full Senate.
______
Statement of George Renner, President, Board of Directors,
Central Arizona Water Conservation District
Chairman Murkowski, Chairman Campbell, and members of the
committees, the Central Arizona Water Conservation District is pleased
to offer the following testimony regarding S. 437, the Arizona Water
Settlements Act.
The Central Arizona Project or ``CAP'' was authorized by the 90th
Congress of the United States under the Colorado River Basin Project
Act of 1968 (Basin Project Act). The CAP is a multi-purpose water
resource development project consisting of a series of canals, tunnels,
dams, and pumping plants that lift water nearly 3,000 feet over a
distance of 336 miles from Lake Havasu on the Colorado River to the
Tucson area. The project was designed to deliver the remainder of
Arizona's entitlement of Colorado River water into the central and
southern portions of the state for municipal and industrial,
agricultural, and Indian uses. The Bureau of Reclamation (Reclamation)
initiated project construction in 1973, and the first water was
delivered to central Arizona in 1985. In 2000, CAP delivered its full
normal year entitlement of 1.5 million acre-feet for the first time,
allowing Arizona to utilize its full Colorado River apportionment of
2.8 million acre-feet.
CAWCD was created in 1971 for the specific purpose of contracting
with the United States to repay the reimbursable construction costs of
the CAP that are properly allocable to CAWCD, primarily non-Indian
water supply and commercial power costs. In 1983, CAWCD was also given
authority to operate and maintain completed project features. CAWCD's
service area is comprised of Maricopa, Pima, and Pinal counties, and
includes the state's major metropolitan areas of Phoenix and Tucson.
CAWCD is a tax-levying public improvement district, a political
subdivision and a municipal corporation, and represents roughly 80% of
the water users and taxpayers of the state of Arizona. CAWCD is
governed by a 15-member Board of Directors elected from the three
counties it serves. CAWCD's Board members are public officers who serve
without pay.
Project repayment is provided for through a 1988 Master Repayment
Contract between CAWCD and the United States. Reclamation declared the
CAP water supply system (Stage 1) substantially complete in 1993, and
declared the regulatory storage stage (Stage 2) complete in 1996. No
other stages are currently under construction. Project repayment began
in 1994 for Stage 1 and in 1997 for Stage 2. To date, CAWCD has repaid
$685 million of CAP construction costs to the United States.
In 2000, CAWCD and Reclamation successfully negotiated a settlement
of their $500 million dispute regarding the amount of CAWCD's repayment
obligation for CAP construction costs. That dispute had been the
subject of ongoing litigation in United States District Court in
Arizona since 1995. The settlement includes a number of conditions that
must be satisfied before it will become final, including completion of
Indian water rights settlements for the Gila River Indian Community and
Tohono O'odham Nation. Several of those conditions are addressed in S.
437.
title 1--central arizona project settlement act
Title 1 of S. 437 resolves a long-standing dispute between the
United States and the State of Arizona regarding the allocation of CAP
water. Title 1 also provides the water supplies and funding source that
are necessary to complete Indian water rights settlements for the Gila
River Indian Community (Title 2), the Tohono O'odham Nation (Title 3)
and other Arizona tribes.
CAP Water for Indian Settlements
To provide water for Indian water rights settlements, Title 1
ratifies the Arizona Water Settlement Agreement among the United
States, CAWCD and the Arizona Department of Water Resources. That
agreement provides a framework under which non-Indian agricultural
water users with long-term contract entitlements to CAP water will be
allowed to relinquish their CAP entitlements in return for, among other
benefits, relief from federal debt they incurred under section 9(d) of
the Reclamation Project Act of 1939. Collectively, that 9(d) debt
totals more than $158 million. Under the Arizona Water Settlement
Agreement, CAWCD has agreed to pay about $85 million of that debt and
the United States has agreed to forgive $73.5 million. Section 106 of
S. 437 makes the 9(d) debt that the United States has agreed to forgive
non-reimbursable and nonreturnable.
Section 106 also exempts land within the CAP service area from the
Reclamation Reform Act and any other acreage limitation or full cost
pricing provision of federal law. The Central Arizona Project was
constructed to provide renewable water supply to agriculture to
alleviate the significant groundwater overdraft in central Arizona. By
limiting the agricultural lands that may receive CAP water, the
Reclamation Reform Act operates to increase groundwater pumping in
central Arizona. Thus, the exemption in section 106 is appropriate to
help the CAP achieve its mission. This exemption also satisfies a
condition to the relinquishment of the CAP non-Indian agricultural
entitlements.
Title 1 directs the Secretary of the Interior (Secretary) to
reallocate the CAP water relinquished by non-Indian agricultural
contractors, with two-thirds going to facilitate pending and future
Indian water rights settlements and one-third to the State of Arizona
for future municipal and industrial (M&I) use. Ultimately, 47 percent
of the CAP water supply will be designated for Indian uses, while 53
percent will be available for non-Indian M&I or agricultural uses. This
represents an increase of 214,500 acre-feet in the amount of CAP water
available for use by Indian tribes. This division of the CAP supply is
intended to be final. No CAP water will be made available for future
Indian settlements except as provided in Title 1.
Title 1 also prohibits the transfer or use of any CAP water outside
the State of Arizona, except in the context of the interstate water
banking program already established under regulations adopted by the
Secretary of the Interior (Secretary). Title I also directs the
Secretary to reallocate 65,647 acre-feet of currently uncontracted CAP
M&I water to M&I water providers in Arizona. Both of these provisions
are essential to CAWCD and its water users.
Funding for Indian Water Rights Settlements
To provide a funding source for Indian water rights settlements,
Title 1 amends section 403(f) of the Basin Project Act to allow
additional uses of certain funds deposited into the Lower Colorado
River Basin Development Fund (Fund). The Fund is a separate fund within
the U.S. Treasury established by Congress in the Basin Project Act,
which authorized construction of the CAP. Revenues deposited into the
Fund come from a number of sources, including: the sale of power from
the Navajo Generating Station that is surplus to CAP pumping needs; a
surcharge on power sold in Arizona from Hoover Dam and (beginning in
2005) Parker and Davis Dams; and other miscellaneous revenues from
operation of the CAP. Under existing law and contract, these revenues
are paid each year to the general fund of the Treasury to return the
CAP construction costs that are reimbursable by CAWCD. To the extent
that Fund revenues are insufficient to meet CAWCD's annual repayment
obligation, CAWCD makes up the difference with a cash payment to the
United States, which is also deposited into the Fund.
Title 1 does not affect the collection and deposit of revenues to
the Fund. Nor does it affect CAP repayment or alter CAWCD's obligation
to make cash payments sufficient to meet its annual repayment
obligation for the CAP. Under Title 1, monies in the Fund will still be
credited first against CAWCD's annual repayment obligation. But instead
of being returned to the general fund, those funds may also be used
each year, without further appropriation, to pay costs of delivering
CAP water to Indian tribes, constructing distribution systems to
deliver CAP water to Indian tribes, and other costs authorized under
Titles 2 and 3 of S. 437.
title 2--gila river indian community water rights settlement act
Title 2 authorizes, ratifies and confirms a settlement of the water
rights claims of the Gila River Indian Community (Community) that has
been more than a decade in the making. This agreement is a significant
step forward for Arizona that will settle longstanding litigation over
the Community's water rights and provide much-needed certainty for
state water management.
Of particular importance to CAWCD, Title 2 prohibits the lease,
exchange, forbearance or transfer of CAP water in any way by the
Community for use outside the state of Arizona.
title 3--southern arizona water rights settlement amendments act
Title 3 resolves remaining disputes related to the Southern Arizona
Water Rights Settlement Act, which was enacted by Congress in 1982 to
settle the water rights claims of the Tohono O'odham Nation (Nation).
Like the Community in Title 2, the Nation is expressly prohibited from
leasing, exchanging, forbearing or transferring any of its CAP water
for use outside the state of Arizona.
conclusion
CAWCD strongly supports S. 437. Passage of this legislation will
help bring closure to many longstanding disputes involving Arizona's
water supplies.
______
Statement of Timothy R. Snider, President, Phelps Dodge Mining Company
Chairman Murkowski, Chairman Campbell, and members of the
committees, thank you for the opportunity to submit written testimony
on S. 437, the Arizona Water Settlements Act (``the Act''), which
includes in Title II an approval of the Gila River Indian Community
Water Rights Settlement. The settlement constitutes a truly historic
accomplishment on the part of the Gila River Indian Community (``the
Community'') and others who helped achieve it, and reflects more than a
decade of hard work. Once enacted and implemented, the Act and the
settlement will yield profound and beneficial results in Arizona and
New Mexico; the Act and the settlement are as important to the region
as the enactment of the legislation authorizing the construction of the
Central Arizona Project in 1968.
Phelps Dodge Corporation (``Phelps Dodge'') is a participant in the
settlement, which is authorized by Title II of the Act. Indeed, Phelps
Dodge was one of the first entities in Arizona to enter into a water
rights settlement agreement with the Community, in an agreement that
the Community and Phelps Dodge executed on May 5, 1998. A bill to
approve the settlement was introduced in the United States Senate (S.
2608) in 1998. Bills to approve the settlement were introduced again in
the Senate and the House of Representatives (S. 421 and H.R. 1944) in
1999. The Community and Phelps Dodge did not pursue the enactment of
the legislation in 1998 or 1999, in order to achieve and participate in
a more comprehensive settlement of the Community's water rights claims.
That larger settlement is embodied in the master settlement agreement
(``the Settlement Agreement'') that will be signed by numerous Arizona
water rights claimants, including Phelps Dodge, and approved by the
Act. The 1998 settlement agreement between the Community and the Phelps
Dodge has been revised and is incorporated into the Settlement
Agreement.
Phelps Dodge has not yet executed the Settlement Agreement, not as
a result of any unresolved issues with the Community, but as a result
of several outstanding matters unrelated to the Community. These
matters are expected to be resolved prior to the markup of S. 437.
The Act, once it becomes law, will significantly improve the
fortunes of the Community and its members and will resolve long-
standing disputes and litigation in Arizona, as well as important water
supply issues in Arizona and New Mexico, to the ultimate benefit of all
of the citizens of Arizona, New Mexico and the Southwest.
We thank you for the opportunity to submit this testimony and look
forward to working with the parties to the Settlement Agreement to
achieve its successful execution, approval and implementation.
______
Statement of Douglas Mason, General Manager, San Carlos Irrigation and
Drainage District, Coolidge, AZ
Chairmen Domemici and Campbell and Members of the Committees, the
San Carlos Irrigation and Drainage District (District) is pleased to
submit this testimony supporting the enactment of S. 437, the Arizona
Water Settlements Act. Our support for enactment reflects the efforts
of many parties that have collaborated to bring this settlement to the
point where the Congress can consider enactment of the authorizing
legislation of particular note are the efforts of Senator Jon Kyl of
Arizona, who has been instrumental in bringing the parties together to
structure innovative solutions to what had been considered to be
intractable disputes.
Although the broad fabric of the Settlement is complete, two areas
continue to be completed through ongoing negotiations. These include:
(1) finalization of arrangements for water users in New Mexico to use
the 18,000 acre-feet per year of Central Arizona Project water that was
promised in the 1968 Colorado River Basin Project Act and (2)
completion of agreement language defining the rights of water users in
the Upper Gila River valleys near the communities of Duncan and Safford
in western New Mexico and eastern Arizona. This District is
participating in those discussions. With conclusion of those two items
and any necessary conforming changes to the Settlement Agreement and
the legislation, the Bill will be ready for enactment.
From the perspective of this District, the Settlement accomplishes
important objectives. They include:
1. Resolves decades of difficulties between District farmers
and members of the Gila River Indian Community (Community) over
how the Gila River water rights shared by the District and the
Community are managed; this is accomplished by restructuring
and simplifying how San Carlos Irrigation Project (Project)
water is divided;
2. Vests in the District and the Community, through a Joint
Control Board, operation and maintenance responsibility for the
Project irrigation water delivery facilities;
3. Provides for the rehabilitation of Project irrigation
water delivery facilities using moneys available in the Lower
Colorado River Basin Development Fund that is to be made
available through contracts between (1) the United States and
the Community and (2) the United States and the District;
4. Provides that the District will use its available
contracting authorities and workforce to cost-effectively
complete the rehabilitation of all District and most Project
Joint Works facilities;
5. Provides that 8,000 acre-feet per year of water conserved
through rehabilitating District facilities will be made
available to maintain a sustainable water supply for a minimum
Project fish and wildlife pool in the San Carlos Reservoir;
6. Provides an option for the United States to use, for a
future water rights settlement with the San Carlos Apache
Tribe, an average of 10,000 acre-feet per year of water
conserved through rehabilitating District facilities; and
7. Provides that the District will assume the obligation to
repay that portion of District facility rehabilitation costs
that are associated with the net new conserved water supplies
received by the District and, further, provides that remaining
costs will be non-reimbursable because the beneficiaries of
those investments are tribal entities and fish and wildlife
resources.
In conclusion, the San Carlos Irrigation and Drainage District
supports enactment of S. 437 because it resolves historical disputes
and establishes mechanisms where future disagreements can be resolved
among the local interested parties without needing to involve the
United States in such management decisions.
Along with myself, our General Counsel, Riney B. Salmon II and our
Engineering Consultant, Michael J. Clinton will attend the Committee
Hearing. We would be pleased to address any questions that arise about
District participation in the Arizona Water Settlements Act and the
associated Settlement Agre6ment.
Thank you for considering this testimony.
______
Statement of L. Anthony Fines, Attorney for Gila Valley Irrigation
District and David A. Brown, Attorney for Franklin Irrigation District
Chairman Murkowski, Chairman Campbell, and members of the
committees, thank you for the opportunity to advise the committees of
our support of S. 437, the Arizona Water Settlements Act. We represent
the Gila Valley Irrigation District and the Franklin Irrigation
District. Both Irrigation Districts have been litigating for over 15
years with the Gila River Indian Community, the San Carlos Irrigation
District and others in United States District Court regarding the Globe
Equity No. 59 Decree. The Irrigation Districts have been litigating
with the same parties for almost as long in Arizona State Court
regarding the adjudication of all rights to the Gila River. After years
of negotiations among the lawyers and technical representatives of the
Gila River Indian Community, the San Carlos Irrigation District, and
the lawyers and technical representatives for our clients, we have
reached a resolution of the substantive issues between the Irrigation
Districts and the Gila River Indian Community that will settle both
court cases. We are confident that we will soon reach an identical
resolution with the lawyers and technical representatives for the San
Carlos Irrigation District.
We strongly support the Arizona Water Settlements Act which will
make the settlement between the Irrigation Districts we represent, the
Gila River Indian Community and the San Carlos Irrigation District
possible.
______
Statement of Greg Pierce, President, Paloma Irrigation and
Drainage District
Chairman Murkowski, Chairman Campbell, and members of the
committees, thank you for the opportunity to provide written testimony
on Senate Bill 437--Arizona Water Rights Settlement Act. The Paloma
Irrigation and Drainage District (``Paloma'') respectfully submits
these comments on behalf of its landowners in general support of the
proposed Arizona Water Rights Settlement Act, and particularly Title
II, the Gila River Indian Community Water Rights Settlement. Paloma
appreciates and supports all of the parties' efforts to resolve Indian
water rights claims, including those of the Community.
Paloma comprises approximately 65,000 irrigated acres of farmland
in southwestern Maricopa County near Gila Bend along the Gila River
downstream from the Gila River Indian Reservation. On behalf of its
landowners, Paloma diverts Gila River water using the Gila Bend Canal
and other diversion works to irrigate these farmlands. The landowners
hold appropriative rights to water from the Gila River and its
tributaries with priority dates as early as 1881, which are among the
oldest water rights in Arizona.
Paloma has always supported the concept of offering to the
Community a reasonable amount of water, and funds to apply that water
to Reservation lands, and to resolve its claims against other water
rights claimants in the Gila River Adjudication. For some time, Paloma
and the Community have worked together to ensure that the water users
situated downstream from the Reservation receive reasonable assurances
that the proposed settlement will put an end to litigation with the
Community, its members and allottees, and the United States on their
behalf.
The provisions resolving litigation downstream from the Reservation
are in the final stages of completion. Paloma will continue to support
the proposed settlement provided the parties continue to work towards
resolving these matters and the final settlement incorporates terms
whereby the Community, its members and allottees, and the United States
on their behalf, waive their claims against Paloma and its landowners
in the same manner as the Community has done for other water claimants
throughout the State.
Paloma and its landowners appreciate the efforts of the Community
and other parties working to resolve the water rights litigation that
has plagued Arizona for decades. Paloma looks forward to working with
the parties and Congress to finalize a complete settlement. Thank you
for your attention to this matter.
______
Statement of Skip Rimsza, Mayor, City of Phoenix
Chairman Murkowski, Chairman Campbell, and members of the
committees, the City of Phoenix, an incorporated municipality within
Maricopa County, Arizona, greatly appreciates the opportunity to offer
testimony in support of the Arizona Water Settlements Act, S. 437,
which settles the long standing water rights claims of the Gila River
Indian Community and disputes over water allocations and costs of the
Central Arizona Project. The Settlement Act provides many benefits to
Arizona Indian tribes, the federal government, the State of Arizona and
the City of Phoenix, both directly and indirectly.
The linchpin of the Act is Title I, the Central Arizona Project
Settlement. Title I settles disputes between the federal government and
the State of Arizona over repayment obligations for the Central Arizona
Project (CAP). It also divides CAP water between state and federal
purposes. Most importantly, it provides a framework for the Gila River
Indian Community Water Rights Settlement and future Indian water rights
settlements in Arizona by providing funding sources and identifying
water supplies that can be used to fill water budgets for those
settlements. If also insures that precious Colorado River water will
remain within the State and be used for the benefit of its citizens.
The State, Indian tribes and federal government all reap rewards from
settlements.
Title I provides for long-term contractual commitments of CAP water
to be capped at 1,415,000 acre-feet with 667,724 acre-feet going to
Arizona Indian Tribes and the federal government. The remainder of the
entitlement, 747,246 acre-feet goes to the State and non-Indian water
users. The split of this entitlement is used as the basis of the
State's repayment obligation for the Central Arizona Project. Agreement
between the State of Arizona, the federal government and Arizona Indian
tribes on this point is a major accomplishment that only could have
come to closure in the context of the overall settlement package
authorized in this bill.
The reallocation to Arizona's Municipal and Industrial CAP water
users in the amount of 65,500 acre-feet has been a hotly debated issue
between water users in the State of Arizona, the federal government and
Arizona Indian Tribes. Title I provides that the City of Phoenix shall
receive 8,206 acre-feet of CAP water from this pool. The City will pay
over $500,000 in back capital charges to the Central Arizona Water
Conservation District (CAWCD) when that reallocation is finalized. This
is a critical component of the Arizona Water Settlements Act for the
City of Phoenix. Other important provisions include the extension of
the City's CAP subcontract for an additional 100 years, recognition
that the contract is for permanent service and the creation of a
formula for sharing CAP water between federal and non-federal water
users in the event a shortage of Colorado River water for the Lower
Basin States is declared. The City is not alone in the receipt of these
benefits; they are available to all CAP subcontractors within Arizona.
The identification of water supplies for Arizona Indian tribes now,
in the case of the Gila River Indian Community (Community) and in the
future for Indian Tribes with unfulfilled water rights claims, will
benefit tribes, the federal government and the State of Arizona. The
ability to facilitate settlement of these claims is critical to the
continued vitality of the State. Settlement of these claims will
provide certainty and will avoid costly and protracted legal battles
over water resources.
Perhaps the most important provision of the entire bill is Section
107 of the Act which: (1) amends the Colorado River Basin Project Act
to allow for revenues deposited into the Lower Colorado River Basin
Fund to be credited against the repayment obligation for the Central
Arizona Project; (2) provides funding for the Gila River Indian
Community and the Tohono O'Odham Nation settlements; (3) allows the
federal government to meet its obligations to fund Indian tribes
operation and maintenance costs for CAP water deliveries to tribes; (4)
provides funds for construction of critical water delivery
infrastructure for Indian tribes; and, (5) creates a mechanism to fund
future Indian water settlements. This part of the Act provides an
enormous collective benefit to the tribes, the federal government and
for the State of Arizona and is an example of the forward thinking that
went into the settlement package.
Title II, the Gila River Indian Community Water Rights Settlement,
is the culmination of many years of intensive negotiations. The
settlement is fair and equitable for the GRIC, the State of Arizona,
the federal government and local municipal, corporate, agricultural,
and private parties and was achieved only with tremendous amounts of
give and take on all sides. The Indian Community is a reservation of
over 350,000 acres located within Maricopa and Pinal Counties. The
reservation is located immediately south of the City of Phoenix and
shares a common border with the City of Phoenix of approximately
twenty-two miles in length. It is the city's largest neighbor in terms
of land area. The City of Phoenix has a population of over 1.4 million
people. This settlement agreement has many benefits for both the Gila
River Indian Community and the City of Phoenix. The success of the
settlement negotiations has also opened up many doors between the two
communities on other important issues as well, and successful passage
of the Water Settlement Agreement and implementation of the settlement
agreement will further enhance future cooperative efforts between the
Gila River Indian Community and the City of Phoenix.
To provide some background to the settlement, the City and the Gila
River Indian Community have been engaged in longstanding disputes over
the rights to Arizona's most scarce and precious natural resource,
water. The City and the Community are not alone in this regard. These
disputes involve significant claims to water by surrounding cities and
towns, the State of Arizona and the federal government. The settlement,
which the City helped craft provides resolution for all these claims in
a fair and equitable manner to all parties, including the federal
government.
The nature and extent of the disputes deserves some explanation.
The Indian Community primarily sits astride the Gila River. A portion
of the Community also sits along the Salt River, a primary tributary to
the Gila River. The Community contends that it has been denied by its
neighbors, as well as by the actions and inactions of the federal
government, to its fair share of the surface waters of the Gila River.
More importantly to Phoenix, the Community claims that its fair share
of the Salt River has been negatively impacted as well. For many years,
the City of Phoenix has relied upon its water rights to the Salt River
and its tributaries, through deliveries by the Salt River Project, for
over 60% of its total water supplies.
The Community also claims that its groundwater resources have also
been unduly impacted by pumping that occurs off the reservation.
Numerous lawsuits against parties in the State, including Phoenix, have
been filed by the Community and by the federal government on behalf of
the Community.
Without this legislation the settlement will not become effective,
and the parties including the federal government, will be forced to
continue to litigate their disputes in court. A general stream
adjudication to the rights of the Gila River and all its tributaries,
the Gila River Adjudication, has been underway in Arizona since the
1970's. Without this bill the Community, the federal government and
thousands of state parties will continue to have to assert and defend
their claims in an expensive and lengthy process. This settlement
solves that problem as well.
There is a clear need for settlement of all these disputes. This
settlement is appropriate and it is fair to all parties including the
federal government and the Indian Community. All parties have been well
represented in negotiating it. The City of Phoenix, for its part, has
given up some of its Salt River water supplies, for the benefit of the
GRIC. The City will also lease 15,000 acre-feet per year of the
Community's CAP water supply at an upfront cost of over $20,000,000.
Congressional authority for the Community to lease its water is
necessary and that authority is contained in this bill. Phoenix'
contributions to the settlement package are significant as are the
contributions of the other parties in Arizona. Reciprocal waivers of
claims between the Community, the federal government and the City of
Phoenix and other state parties are also a key part of this legislation
and are a vital component of the settlement.
In summary, the City of Phoenix believes the Arizona Water
Settlement Act is a fair, equitable and cost effective solution for the
settlement of financial and water claims for the benefit of the State
of Arizona and its citizens, Arizona Indian tribes and the federal
government and urges its enactment.
______
Statement of Van Talley, Mayor, City of Safford, AZ
Chairman Murkowski, Chairman Campbell, and members of the
committees, thank you for the opportunity to provide written testimony
on Senate Bill 437--Arizona Water Rights Settlement Act. The City of
Safford respectfully submits written testimony supporting the Gila
River Indian Community Water Rights Settlement authorized in Senate
Bill 437. On behalf of the residents of Safford, Arizona and customers
of the City water system I express gratitude for your interest in our
water problems.
Located along the bank of the Gila River upstream from the Gila
River Indian Reservation, Safford is a growing city serving water to
more than 20,000 people, including the Town of Thatcher and other
neighboring communities in Graham County. As Southeast Arizona's
commercial center, Safford, like other municipal, industrial and
agricultural sectors, requires reasonable and reliable water supplies.
The Gila River Indian Community Water Rights Settlement offers this
security among the parties.
For decades, Safford has continued to work with water users in the
Upper Gila River Valley, the United States, and Native American tribes
and communities to resolve water quantity and water quality issues. For
the past five years, the City, along with other parties, diligently
worked to settle the Gila River Indian Community's water rights claims.
The bill before you is the culmination of efforts resolving the
Community's claims, which in turn saves the parties from uncertain,
complex, and expensive litigation concerning water rights.
Like many other parties, one of the benefits Safford receives is
certainty of water supplies and the ability to plan for the future
accordingly. The Community and certain other parties confirm Safford's
water rights that would otherwise be contested and litigated. The
Settlement recognizes Safford's right to use 9,740 acre-feet of water
per year and provides mechanisms to enable the City to meet higher
demands. While Safford's water allocation is relatively small when
compared to the Community's 653,500 acre-feet, it nonetheless assures
Safford of water for present and reasonably foreseeable needs.
The Settlement also helps to enhance Gila River water quality while
simultaneously providing Safford with a water source to meet additional
demands. The Settlement authorizes the appropriation of funds to repay
indebtedness on the City's recently constructed state-of-the-art water
treatment facility. Treated water may be returned to the stream to
enhance stream flows and stream quality, or recharged to meet Safford's
future water demands. The use of treated water is just one of the
methods that Safford may implement to meet future needs without
diminishing available water for other users and parties to the
Settlement. To obtain these benefits, Safford agreed to a water budget
of about one half of its claimed water rights.
The treatment plant and a dependable water supply for the benefit
of Safford are just a few of the positive results that are being
proposed in the Settlement. Dozens of cities and towns receive similar
benefits. Agricultural and industrial interests may continue to operate
with less litigation risk towards their water supplies. The Settlement
also enhances and preserves land, wildlife, and the environment.
The Settlement with the Gila River Indian Community and Senate Bill
437 is a giant step in resolving the pending issues and confirming
water rights among the parties to a limited supply of water. I urge the
Committees and the Senate to pass this bill that will settle
significant water rights in the State of Arizona and allow the Gila
River Indian Community and many cities, towns, irrigation districts and
others to plan for future growth with confidence and reliable water
supplies.
______
Statement of the Mayor and Common Council of the Town of Payson, AZ
Chairman Murkowski and members of the subcommittee, the Town of
Payson, Arizona, appreciates the opportunity to express its support for
S. 437. The Town is a community of 14,500 residents, which is located
an hour's drive northeast of the Phoenix metropolitan area in the
scenic and cool pine county below the Mogollon Rim. Its climate and
exquisite setting offer abundant blessings, in sharp contrast to the
limited water supply available to the Town from the fractured granite
aquifer underlying it. For decades the Town has strained to be a
responsible steward of the water resources at its disposal, but the
time is fast approaching when there simply will not be enough water to
meet the demand.
The Town is especially pleased that S. 437 would confirm and ratify
a settlement agreement facilitating an eventual transfer of Blue Ridge
Dam and related facilities and water rights to the Salt River Federal
Reclamation Project. It realizes that this transfer is not assured even
if the legislation passes, and that such a transfer would be only the
first of many important steps needed to make water from Blue Ridge
Reservoir available to meet the Town's water supply needs. The Town has
done what it can within its own governing structure, however, and it is
critical that progress be made toward securing a renewable water
supply.
We commend Senator Jon Kyl, his staff, and the parties to the
settlement for their dedication. We urge this Subcommittee, the
Committee on Energy and Natural Resources, the Indian Affairs
Committee, and the full Senate to give S. 437 favorable consideration.
Thank you for considering our views.
______
Statement of Dallas Massey, Sr., Tribal Chairman of the White Mountain
Apache Tribe of the Fort Apache Indian Reservation, State of Arizona
tribe's aboriginal title from time immemorial
The White Mountain Apache Tribe currently has beneficial title,
equivalent to fee-simple absolute, to over 1.6 million acres of its
once much larger aboriginal territory in the east central highlands of
the State of Arizona.\1\ The Tribe's Fort Apache Indian Reservation was
established by Executive Orders in 1871 and 1872. The Tribe has
retained actual, exclusive, use and occupancy of its aboriginal lands,
within the boundaries designated by the Executive Orders dated November
9, 1871 and December 14, 1872, without exception, reservation, or
limitation since time immemorial. The Tribe has an unbroken chain of
title and has retained said title to its lands. The Tribe's vested
property rights, including its aboriginal rights to the use of waters,
that underlie, border and traverse its lands have never been
extinguished by the United States and are prior and paramount to all
rights to the use of water in the Gila River drainage, of which the
Salt River is a major affluent.
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\1\ Current Tribal membership is approximately 14,000 persons. The
Tribe's Reservation population is projected to be 38,000 to 40,000
persons by 2050, and 102,000 by the year 2100.
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the tribe's reservation the source of salt river and its numerous
tributaries
Except for a small portion of the Reservation that drains to the
Little Colorado River Basin, virtually the entire Reservation drains to
the Salt River. The headwaters and tributaries of the Salt River arise
on the Tribe's Reservation: the north fork of the White River joins the
east fork of the White River at Fort Apache which then joins the Black
River to form the Salt River, the Tribe's southern most boundary and
the northern boundary of the San Carlos Apache Reservation.
measure of tribe's aboriginal salt river rights adequate to meet
present and future requirements
The Tribe claims aboriginal, reserved water rights to Salt River
water with a priority date of time immemorial in the amount of 260,000
acre feet annually.\2\ That claim includes approximately 49,800 acres
of practicably irrigable acreage (less than 3% of the Tribe's
Reservation) with a water duty of 5.3 acre feet to the acre. In
addition, the Tribe claims water to meet the projected population of
the White Mountain Apache Tribe to the year 2100 of some 102,000
persons with attendant municipal, industrial and commercial water use.
Currently, the Tribe has a ski resort/park, over 25 outdoor
recreational lakes, two United States fish hatcheries on the
reservation, several hundred miles of cold water streams, mineral
deposits that have yet to be developed, including gravel, gypsum and
high grade iron ore, and hundreds of thousands of acres of commercial
pine and spruce timber stands which supply commercial grade timber for
the Tribe's sawmill which produces 60 million board feet annually.
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\2\ The Tribe's aboriginal rights to the use of water on its lands
include all beneficial uses, whether for livestock, agriculture or for
the ``arts of civilization''. See Winters v. United States, 143 Fed.
740 (CA9, 1906); 143 Fed. 684 (CA9, 1906), Winters v. United States,
207 U.S. 564, 576 (1908); Arizona v. California, 373 U.S. 546,599-601
(1963).
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The Tribe's water rights remain unquantified, although the United
States in its capacity as the Tribe's as Trustee, has filed a claim in
the name of the United States for approximately 175,000 acre feet of
Salt River water in the Gila River General Stream Adjudication now
pending in the Mancopa County Superior Court, State of Arizona.\3\ The
United States has Amended filings in the Little Colorado River and the
Gila River General Stream Adjudications in September 2000, to assert
the Tribe's aboriginal and priority rights to the transbasin aquifer
sources necessary to sustain the base flow of the springs and streams
on the Tribe's Reservation. These two claims filed by the United States
as Trustee specifically recognize the Tribe's unbroken chain of
aboriginal title and time immemorial priority rights to the base flow
of the springs and streams as well as surface water contributed by
rainfall and snowfall runoff on the Tribe's Reservation.\4\
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\3\ The United States has also filed a claim in the Little Colorado
River General Stream Adjudication as the Tribe's Trustee. To date, the
Tribe has not intervened as a party in either adjudication nor has
settlement been sought, but the Tribe has taken steps throughout its
history to protect and preserve its reserved and retained water rights.
\4\ The United States officially acknowledges that Indian water
rights are vested property rights for which the United States has a
trust responsibility, with the United States holding legal title to
such water in trust for the benefit of the Indian people. See for
example, ``Preamble to Department of Interior Policy Statement, Working
Group in Indian Water Settlements; Criteria and Procedures for the
Participation of the Federal Government in Negotiations for the
Settlement of Indian Water Claims'', 55 FR 9223 (March 12, 1990).
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The Tribe's retained rights are continuing against the United
States and its grantees as well as against the State of Arizona and its
grantees. See United States v. Winans, 198 U.S. 371, 382 (1905). Thus,
the Tribe's priceless aboriginal Salt River rights to the use of water
are an interest in real property of the highest dignity and a right
recognized by the United States Supreme Court, and by the Arizona
Supreme Court in the Gila River General Stream Adjudication, 171 Ariz.
230, 830 P.2d. 442,447 (1992), in which that Court declared that water
rights are property rights.
The Court of Federal Claims has found as a matter of fact that
prior to the establishment of the Tribe's Reservation in 1871-1872, the
White Mountain Apache Tribe exercised its aboriginal rights to the use
of water in the Salt River and the tributaries of that stream for
purposes of agriculture, including the production of corn, wheat,
beans, and vegetables in quantities sufficient to satisfy ``an
estimated twenty-five percent'' of the Tribe's diet. White Mountain
Apache Tribe v. United States, 11 CI.Ct. 614, 622, See, Plate in that
case displaying Salt River drainage within Fort Apache Indian
Reservation, at 623. The Court of Federal Claims also declared as a
matter of law, that the Tribe had vested in it, title to Winters
Doctrine rights to the use of water in die Salt River and the
tributaries of that stream, White Mountain Apache Tribe v. United
States, 11 CI.Ct. 614, 638 (1987), and that the Tribe's aboriginal
rights were prior to and paramount to the claims asserted for the Salt
River Project by the Salt River Valley Water Users Association, Ibid.
See also, Winters v. United States, 207 U.S. 564, 576 (1908),
``fundamentally, the United States as Trustee for the Indians,
preserved . . . the title to the rights to the use of water which the
Indians [as here] had `reserved' for themselves''. The White Mountain
Apache Tribe may exercise its aboriginal, reserved, and retained Salt
River rights for any beneficial purpose, including but not limited to,
aboriginal rights to the use of water, all surface water, percolating
water, groundwater, forests, range lands, fisheries, wild life,
aesthetics, and all other constituent elements of which an estate in
fee simple absolute title is comprised.
The Tribe recognizes that full development of the Tribe's rich
natural resources, referred to above, must be predicated upon the
exercise of the Tribe's aboriginal Salt River rights to the use of
water for a vast variety of uses, involving municipal, domestic,
mineral, industrial, recreation, and all other related uses. All of the
foregoing is necessary to fulfill the commitment by the Tribe's
Trustee, the United States, that the Tribe's permanent homeland would
be both an economic and socially acceptable area in which the Tribe may
live and prosper for all time and for all purposes.
The White Mountain Apache Tribe, is seeking to achieve in
cooperation with its Trustee, the United States, without interference
from the State of Arizona, a sound, economic, and social base, which
can only be achieved if the Tribe is also free to exercise its Salt
River rights to the use of water in its broad programs to revitalize
its severely damaged range and forest lands caused by the mismanagement
of its Trustee, and to fully develop a self-sustaining, stable economic
and social community that will guarantee the perpetuation now and in
the future of the Tribe's range lands, forest lands, minerals, surface
and ground waters and all other resources for the benefit of the Tribe
and its members now and in perpetuity.
arizona water settlement act s. 437
It is within the foregoing context that the Tribe has grave
concerns about the impact of the Arizona Water Settlement Act (as
presently drafted) on its vested and reserved water rights. The White
Mountain Apache ``tribe submitted comments for the Environmental Impact
Statement on the reallocation of the CAP water supply, to the effect
that depletion by the White Mountain Apache Tribe and other Indian
Tribes of waters in the Salt River System should be considered in
regards to the reallocation of CAP water.\5\ Specifically, that
reallocating 200,000 acre feet of non-Indian agricultural CAP water in
an already over appropriated and water bankrupt delivery system
presupposes that there will be no depletion by the White Mountain
Apache Tribe of any waters within the Salt River drainage. It is
imperative, however, that there must be sufficient water remaining in
the Salt River System pursuant to S. 437 to fulfill a decreed water
right from the Gila River Adjudication or a future settlement of the
Tribe's water rights.
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\5\ See comment B, p. 2-14, Draft Environmental Impact Statement,
June 2000, Volume 2, Technical Appendices A-H. ``Allocation of Water
Supply and Long Term Contract Execution'', Central Arizona Project,
U.S. Department of Interior, Bureau of Reclamation.
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The proposed reallocation of 200,000 acre feet of non-Indian
agriculture rights to Central Arizona Project water to facilitate
settlement of the Gila River Indian Community and Tohono O'odham
Nation's water rights claims, ignores the upstream, prior and paramount
water rights of the White Mountain Apache Tribe a portion of which has
been filed by the Tribe's Trustee, the United States, and the depletion
impact of the Tribe's water use on junior, downstream, non-Indian water
users in the Phoenix Valley. The apparent reliance by the Phoenix
Valley, primarily the Salt River Project on no depletion of the Salt
River by the White Mountain Apache Tribe imposes exponential political
and judicial pressure to deprive the Tribe of its vested property right
to the use of water for a self-sustaining homeland now and into the
future.
future water availability and s. 437 dependence on minimal future use
by white mountain apache tribe
Table 1, page 12, infra, summarizes the water supply and projected
water demands for the Phoenix Active Management Area (AMA) through year
2025. The source of information for each of the entries is provided
from state and federal agencies as identified in Table 1. The analysis
presented below draws attention to the dependence of the future water
supply on minimizing future water use, and consequently, growth and
economic development on the Fort Apache Indian Reservation.
The future sources of water supply for the Phoenix AMA are CAP
(Central Arizona Project), Salt River, Gila River, Agua Fria River,
wastewater effluent and groundwater. As shown in Table 1, those sources
provide a supply of 2,618,923 acre-feet annually, including an
overdraft from groundwater of 430,757 acre-feet annually.
CAP water supplies are part of the amount of water allocated to
Arizona in the Lower Colorado River Compact. The total available to
Arizona by Compact is 2.8 million acre-feet annually, as confirmed in
Arizona v. California, and the amount provided by CAP is 1.5 million
acre-feet annually at the point of diversion on the Colorado River.
Transmission losses (85,000 acre-feet annually) reduce the amount of
water available for contract by the Secretary of Interior through CAP
to 1,415,000 acre-feet annually:
In passing the Boulder Canyon Project Act, Congress intended
to, and did, create its own comprehensive scheme for the
apportionment among California, Arizona, and Nevada of the
Lower Basin's share of the mainstream waters of the Colorado
River, leaving each State her own tributaries. It decided that
a fair division of the first 7,500,000 acre-feet of such
mainstream waters would give 4,400,000 acre-feet to California,
2,800,000 to Arizona, and 300,000 to Nevada, and that Arizona
and California should each get one-half of any surplus.
Congress gave the Secretary of the Interior adequate authority
to accomplish this division by giving him power to make
contracts for the delivery of water, and by providing that no
person could have water without a contract. (Arizona v.
California, No. 8, Original, Decided June 3, 1963, 373 U.S.
546, p. 546.)
The CAP was constructed to annually deliver 1.415 . . . MAF
of Arizona's allocation of Colorado River water to central and
southern Arizona although up to 1.8 MAF can be delivered
through the CAP aqueduct if it is used at maximum capacity. . .
. This represents the volume of CAP water allocated to Arizona,
1.5 MAF, reduced for transmission losses. Supplies can also be
reduced when there is drought on the Colorado River. CAP
supplies have the lowest priority on the Colorado system and
would be the first to be reduced in drought conditions.
Conversely, when there is a surplus declared on the Colorado
River, more water could be delivered. Governor's Water
Management Commission, November 19, 2000, Availability,
Reliability and Utilization of Renewable Supplies, p. 4, and
footnote 2).
The total amount of water available for CAP on a long-term average
is estimated by others at 1,298,000 acre-feet annually:
. . . The DWR and Bureau agreed to use Bureau hydrologic
Sequence number ten for analysis purposes in this EIS. This
sequence produces a long-term average Colorado River water
availability of 1,298,000 acre feet per year while the average
of all 15 sequences is 1,144,000 acre feet per year. Within the
15 Bureau sequences, average Colorado River water availability
varies between 742,000 acre feet per year and 1,523,000 acre-
feet per year. . . . (Bureau of Reclamation, March 19, 1982,
Central Arizona Project, Water Allocation and Water Service
Contracting, Final EIS, p. 10).
This is remarkably consistent with the conclusion reached by the
White Mountain Apache Tribe that only 1,279,000 acre feet per year can
be supplied by the Central Arizona Project at 1980 levels of
development.
Differences exist between the ADWR and Reclamation estimates.
According to the Final EIS on CAP allocations, the differences resulted
from the procedural methodologies employed by each agency and
assumptions regarding the estimates of future water resources developed
in the Upper Colorado River Basin states, delivery system losses,
dependable yield from the Salt and Gila Rivers, and other hydrologic
factors. ADWR estimates of depletions, uses, and losses were generally
less than Reclamation estimates. ADWR estimates of dependable tributary
yields and depleted inflows were generally greater than Reclamation
estimates.
Assuming an average CAP water supply of 1,289,000 acre-feet
annually, shortages can be expected 38% of the years, and shortages
could run continuously for up to 20 years. (CAP Final EIS, pp. 9 and
10). The water supply allocations in the CAP Final EIS also assume
water developed on the Salt and Verde Rivers with a functional
equivalent of Orme Dam on the Verde River and Buttes and Hooker Dams on
the Gila River (CAP Final EIS, p. 6). The Roosevelt enlargement was
implemented as an alternative, and perhaps a functional equivalent, to
Orme Dam. Buttes and Hooker Dams have not been built on the Gila River
system. Therefore, the ability to sustain a long-term average of
1,289,000 acre-feet annually with shortages in 38% of the years is an
overstatement of the reliability of the current supply based on
information collected to date.
The Salt River Project (SRP) modeled the Salt River (Salt and Verde
Rivers at Granite Reef Dam) (a) before (1995) and (b) after (1997) the
enlargement of Roosevelt Dam. SRP determined an average annual Salt
River supply before the Roosevelt Dam enlargement of 833,000 acre-feet
annually and after the enlargement of 906,800 acre-feet annually
(Arizona Department of Water Resources, Phoenix AMA, Section III,
Future Conditions and Directions, Chapter 11, Water Budgets and
Projections, p. 11-9). These estimates are assumed different than the
estimates by ADWR when the CAP Final EIS was in preparation. The
assumptions in either the SRP of ADWR estimates are unknown but
allocate all of the water supply created by enlargement of Roosevelt
Dam to the Phoenix AMA. The level of future depletions assumed by SRP
and ADWR on the Salt and Verde Rivers are not known and are of
considerable interest to the White Mountain Apache Tribe. Did SRP and
ADWR assume no future level of depletion on the Fort Apache Indian
Reservation and what level of future depletion was assumed if greater
than the current level of depletion?
The Gila and Agua Fria Rivers add 92,963 and 32,308 acre-feet
annually to the water supply for the Phoenix AMA, far less than the
906,800 acre-feet annually provided by the Salt River with Roosevelt
enlargement. Effluent in the Phoenix AMA accounts for an additional
159,447 acre-feet annually (Table 1). Groundwater pumping will continue
with an estimated pumping requirement of 999,237 acre-feet annually,
which will be offset by natural recharge, incidental recharge,
replenishment, artificial recharge and other factors that will
presumably reduce the total pumping to an overdraft amount of 430,757
acre-feet annually (ADWR, Chapter 11, pp. 11-10). There is a serious
question with respect to the level of projected overdraft and whether
the overdraft amount is acceptable under the authorizing legislation of
CAP. This is a question requiring further investigation.
The total water supply to the Phoenix AMA is projected at 2,618,923
acre-feet annually, to be fully consumed by the demand for the Phoenix
AMA estimated to range from 2,400,000 to 2,900,000 acre-feet annually
with a mid-range demand level of 2,624,844 acre-feet annually as given
in Table 2, see page 13, infra.*
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* Tables 1 and 2 have been retained in subcommittee files.
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Notable in Table 1 is the presentation of population projections
for Maricopa County (see bottom of Table 1). The 2000 projection was
2,900,000 persons, and the 2000 census reports 3,072,000 persons. This
draws into question the projection of 3,700,000 for year 2010, which
may be under-estimated, as well as the potentially under-estimated
projection of 4,483,000 persons for year 2025.
There is a need for congressional or judicial review to determine
(1) whether the expectations of the authorizing legislation of Central
Arizona Project relating to groundwater pumping are being met, (2) the
level of dependence on the Salt River water supply of 906,800 acre feet
annually without future use by the White Mountain Apache Tribe and (3)
whether the water supply, considering all sources, is available in
sufficient quantities for the regulatory agencies of the State of
Arizona to permit a continuation of unrestrained subdivision in the
Phoenix AMA at the current levels of water conservation, or lack
thereof.
The pressures of water supply and future demand for the Phoenix AMA
as outlined here are believed sufficient to prejudice any state court,
including the Arizona Supreme Court, in the adjudication of Indian
water rights in the W-1 proceeding, particularly as related to the
water rights of the White Mountain Apache Tribe on the Fort Apache
Indian Reservation. The White Mountain Apache Tribe is the only Indian
Tribe that can significantly impact the future water supply of the Salt
River.
The supply of water available from the Salt River as determined by
SRP at a level of 906,800 acre-feet annually is the largest component
of renewable water supply available to the Phoenix AMA. The degree of
participation in the renewable surface waters of the Salt River as
reflected by SRP in the 906,800 acre-feet annually is unknown and must
be determined. If information is not available from SRP, comparable
information is needed from the Bureau of Reclamation.
tribe's additional concerns regarding s. 437
The Arizona Water Settlement Act allocates 653,000 acre feet to the
Gila River Indian Community. This allocation to a single Indian Tribe
prejudices the claims of other Indian Tribes and prevents their
development by the allocation of all reasonably foreseeable water and
funding to a single Arizona Tribe. This may be desirable from the
standpoint of the State's interest to focus all remaining water supply
and all funding sources on a single Tribe that can have the least
impact on the Salt River Project. In the meantime, the Salt River
Project would retain the most valuable water supply in the Phoenix
Valley for the reason that no pumping costs are involved, the water
quality is good and the regulated supply is firm and is not dependent
on the Colorado River Basin Compact, which is an undependable and over
appropriated supply of water for Arizona. The proposed settlement would
rely on Central Arizona Project water, primarily low priority
agricultural water, and would ``dry up'' the lower Colorado Basin
Development Fund.
gila river indian community's and united states' reservation of rights
to oppose white mountain apache tribe's use of water
The White Mountain Apache Tribe is particularly alarmed about the
scope of paragraph 28.1.4 in the Gila River Indian Community Agreement,
which will be confirmed and ratified by S. 437. Paragraph 28.1.4
states:
``the Community and the United States reserve and retain the
right to challenge or object to any claim for use of water by
or on behalf of the following persons or entities:
28.1.4.1 ``the White Mountain Apache Tribe of the Fort Apache
Reservation, Arizona;''
In addition to listing the White Mountain Apache Tribe, the Yavapai
Apache Nation of the Camp Verde Indian Reservation, the Tonto Apache
Tribe of Arizona, the San Carlos Apache Tribe of the San Carlos
Reservation, the Yavapai Prescott Tribe of the Yavapai Reservation,
Arizona, the Salt River Pima Maricopa Indian Community of the Salt
River Reservation, Arizona, and the Fort McDowell Mohave-Apache
Community of the Fort McDowell Indian Reservation, Arizona are also
listed.
Paragraph 28.1.4.1 aligns the power of the United States against
the White Mountain Apache Tribe and authorizes the United States to
breach its trust obligation to protect the retained and reserved water
rights and vested property rights of the White Mountain Apache Tribe.
Moreover, the provision creates an intolerable and irreconcilable
conflict of interest on the part of the Trustee United States which has
filed substantial claims for the Tribe in both the Gila River and
Little Colorado River General Stream Adjudications. This reservation by
the United States to oppose the use of water by the White Mountain
Apache Tribe is also subject to being read together with Section 207(c)
of the Arizona Water Settlement Act which provides:
``The United States shall not assert any claim against the
State (or any agency or political subdivision \6\ of the State)
or any other person, entity, or municipal or other corporation
under Federal, State, or other law in the own right of the
United States or on behalf of the Community, Community members
and allottees, for any of the claims described in subsection
(a).'' (Emphasis added).
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\6\ The Salt River Project as defined in S. 437, means ``the Salt
River Project Agricultural Improvement and Power District, a political
subdivision of the State, and the Salt River Valley Water Users'
Association, an Arizona Territorial Corporation.''
Although, Section 207(a) only includes those claims that could be
raised or asserted by the Gila River Indian Community, Community
members and allottees, Section 207(c), as punctuated and written in the
disjunctive, is subject to the interpretation that the United States
shall not assert any claim on behalf of the White Mountain Apache Tribe
or any other Tribe which it has asserted or could assert in the name of
the United States in addition to whatever claims the United States
could raise on behalf of the Community, Community members and
allottees.
The Tribe opposes the Act's ratification of existing and proposed
agreements for the Salt River Project to deliver Salt River Project
water to cities and communities outside the Project area. The Bureau of
Reclamation Act establishing the Salt River Project provides that Salt
River water cannot be delivered outside the Project area unless there
is a surplus. There is no surplus. Moreover, the Salt River Project has
no right to dispose of water from the Salt River System without
considering the reserved water rights of the White Mountain Apache
Tribe. An Act of Congress that confirms delivery agreements of Salt
River water outside the Salt River Project area without setting aside
or considering the reserved rights of the White Mountain Apache Tribe,
may constitute a taking of the Tribe's vested property rights in
violation of the Fifth Amendment of the United States Constitution.
The White Mountain Apache Tribe requests express and explicit
exclusion from paragraph 28.1.4.1 of the Gila River Indian Community
Agreement and from section 207(c) of S. 437. The Tribe also requests an
express and explicit exclusion of its reserved water rights from S. 437
to make unequivocally clear that none of the agreements entered into by
the Salt River Project with cities, towns or irrigation districts
outside of the Salt River Project area for Salt River water, truncates,
diminishes, or amounts to a taking of any kind of the reserved Salt
River rights of the White Mountain Apache Tribe. If S. 437 is not
designed to take, extinguish or otherwise denigrate the reserved water
rights of the White Mountain Apache Tribe to the Salt River, then it
will be of no moment to explicitly state so in S. 437.
A McCarran Amendment--General Stream Adjudication, must be inter
sere. The Arizona Water Settlement Act ``grandfathers'' in, confirms
and legislatively ratifies existing uses of the Salt River and its
tributaries without an inter sere adjudicatory determination of the
reserved water rights of the White Mountain Apache Tribe vis-a-vis
downstream junior water users thereby removing from the General Stream
Adjudication a necessary requirement for McCarran Amendment
jurisdiction in the State Court. Accordingly, the Arizona Water
Settlement Act may violate the Separation of Powers Doctrine because
Congress is in effect being asked in S. 437 to adjudicate by
legislation the inter sere rights of the White Mountain Apache Tribe to
the use of water in the Gila River System. A similar attempt was made
by the State of Arizona in its 1995 Water Code with like impact on
Indian reserved water rights but was successfully challenged by the San
Carlos Apache Tribe in the Arizona Supreme Court. S. 437 seems, in
part, to plow the same unconstitutional ground the Arizona State
Legislature did in 1995.
conclusion
The White Mountain Apache Tribe respectfully requests that S. 437
not be approved by the Committee unless and until the reserved water
rights of the White Mountain Apache ``Tribe are specifically named and
protected by explicit and express exclusionary language, that
paragraphs 28.1.4 and 28.1.4.1 of the Gila River Indian Community
Agreement be deleted, and that the Act provide for and set aside
sufficiently for depletion of the Salt River by the White Mountain
Apache Tribe to the extent of its Salt River claims, i.e. 260,000 acre
feet annual diversion with corresponding depletion.
______
Statement of Keno Hawker, Mayor, City of Mesa, AZ
Chairman Murkowski, Chairman Campbell, and members of the
committees, as the Mayor of the City of Mesa, Arizona, I appreciate the
opportunity to submit this testimony in support of Senate Bill 437
(``S. 437''). The City of Mesa provides water service to approximately
435,000 people in tour cities and across two counties. The importance
of S. 437 to Mesa, its customers, and other water users throughout
Arizona cannot be underestimated.
You will hear a great deal of testimony about the benefits of the
Arizona Water Settlements Act. You will hear talk of the stability,
certainty in water resources planning, cessation of costly litigation,
and reduced CAP repayment obligation that the settlement brings to the
State of Arizona. You will hear of the benefits the settlement brings
to the federal government, including an increased share of CAP water
that can be used by the federal government to meet its trust
responsibilities towards the many Native American communities within
Arizona. The City of Mesa shares in these important benefits and values
them greatly, but I want to emphasize the value of some of the unique
benefits that the City of Mesa in particular realizes from this Act.
Through this settlement and its enabling legislation, Mesa will
receive an additional allocation of 7,115 acre-feet per year of CAP M&I
priority water that is vital to ensuring Mesa's sustainable growth and
development. Mesa also will gain the option to lease Gila River Indian
Community CAP water in the future, again adding to the pool of water
Mesa can use for its future.
Most importantly, however, the City of Mesa is undertaking a water
exchange with the Gila River Indian Community. Mesa will deliver 29,400
acre-feet per year of high quality reclaimed water to the reservation
boundary and in exchange will receive 23,530 acre-feet of CAP water
that Mesa can use in its potable system. This exchange is essential to
the City of Mesa. The exchange affords Mesa the opportunity to
efficiently convert what is a non-drinking water source into a drinking
water resource that can be used to meet growing municipal and
industrial demands. The exchange allows the Gila River Indian Community
to increase the size of its water budget and use this high quality
water for agricultural purposes at a very low price. Mesa has a history
of partnership with its neighbor the Gila River Indian Community in the
redevelopment of what was Williams Air Force Base, and strongly values
the opportunity to partner again with the Community in a project that
can bring so many benefits to both communities. The proposed reclaimed
water exchange allows both entities to manage water in a regional,
conjunctive, and efficient manner that brings great benefits to the
residents of both communities.
For these reasons and others, The City of Mesa strongly endorses
the Arizona Water Rights Settlements Act and urges your support of S.
437.
Thank you for the opportunity to provide written testimony.
______
Statement of Earl Zarbin, Phoenix, AZ
Dear Committee: This message is offered to let you know that there
is in Arizona opposition to S. 437. One reason is that thirteen tribes
with little more than one (1) percent of the state's year 2000
population already control 44 percent of Arizona's annual Colorado
River entitlement, and S. 437 would increase that control to slightly
more than 51.5 percent. A second major reason to reject this
legislation is that the tribes receiving additional water do not intend
to use all of the water on their reservations. Tribes already are
leasing more than 40,000 acre-feet of water to cities and a community
developer, and one tribe, the Gila River Indian Community, immediately
plans on leasing 40,000 acre-feet to Phoenix and other cities.
This is unjust enrichment, because tribes have paid not a penny for
construction of the Central Arizona Project, through which Colorado
River water is delivered to them and other users, and because the
tribes are receiving tens of millions of dollars in lease payments. It
is not the price of the water that it is of concern. It is the
principle that no user, in a water-short state like Arizona, should
receive excess quantities of water to lease off reservation. These
things are being done with the excuse that giving the Indians water to
which they are not entitled historically, legally, morally or ethically
will give cities certainity as to their water supplies. Another excuse
is that it will end litigation, but that is not true.
Another excuse is that the leases provide the Indian tribes with
income. Some of these tribes already are earning multiple tens of
millions of dollars through gambling casino profits. There is much,
much more that can and should be said about the problems with S. 437--
just one example: the so-called Gila River Agreement with the Gila
River Indian Community is more than 2,000 ``mind-bending'' pages, and
this writer will be pleased to provide information.
Please enter into the record of the forthcoming hearing that there
is opposition to S. 437, and please schedule in Arizona hearings so
that all Senators will have an opportunity to get more of the story
about why there is opposition.
Thank you.