[Senate Hearing 110-148]
[From the U.S. Government Publishing Office]
S. Hrg. 110-148
NAVAJO NATION'S WATER RIGHTS AND MISCELLANEOUS WATER SUPPLY ISSUES
=======================================================================
HEARING
before the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
TO
RECEIVE TESTIMONY ON S. 1171, A BILL TO AMEND THE COLORADO RIVER
STORAGE PROJECT ACT AND PUBLIC LAW 87-483; TO AUTHORIZE THE
CONSTRUCTION AND REHABILITATION OF WATER INFRASTRUCTURE IN NORTHWESTERN
NEW MEXICO; TO AUTHORIZE THE USE OF THE RECLAMATION FUND TO FUND THE
RECLAMATION WATER SETTLEMENTS FUND; TO AUTHORIZE THE CONVEYANCE OF
CERTAIN RECLAMATION LAND AND INFRASTRUCTURE; TO AUTHORIZE THE
COMMISSIONER OF RECLAMATION TO PROVIDE FOR THE DELIVERY OF WATER; AND
TO RESOLVE THE NAVAJO NATION'S WATER RIGHTS CLAIMS IN THE SAN JUAN
RIVER BASIN IN NEW MEXICO
__________
JUNE 27, 2007
Printed for the use of the
Committee on Energy and Natural Resources
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
JEFF BINGAMAN, New Mexico, Chairman
DANIEL K. AKAKA, Hawaii PETE V. DOMENICI, New Mexico
BYRON L. DORGAN, North Dakota LARRY E. CRAIG, Idaho
RON WYDEN, Oregon CRAIG THOMAS, Wyoming *
TIM JOHNSON, South Dakota LISA MURKOWSKI, Alaska
MARY L. LANDRIEU, Louisiana RICHARD BURR, North Carolina
MARIA CANTWELL, Washington JIM DeMINT, South Carolina
KEN SALAZAR, Colorado BOB CORKER, Tennessee
ROBERT MENENDEZ, New Jersey JEFF SESSIONS, Alabama
BLANCHE L. LINCOLN, Arkansas GORDON H. SMITH, Oregon
BERNARD SANDERS, Vermont JIM BUNNING, Kentucky
JON TESTER, Montana MEL MARTINEZ, Florida
Robert M. Simon, Staff Director
Sam E. Fowler, Chief Counsel
Frank Macchiarola, Republican Staff Director
Judith K. Pensabene, Republican Chief Counsel
----------
* Senator Thomas passed away on June 4, 2007.
C O N T E N T S
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STATEMENTS
Page
Artman, Carl, Assistant Secretary for Indian Affairs, Department
of the Interior................................................ 4
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................ 1
D'Antonio, John R., Jr., New Mexico State Engineer, Santa Fe, NM. 14
Domenici, Hon. Pete V., U.S. Senator from New Mexico............. 2
Guenther, Herbert R., Director, Arizona Department of Water
Resources, Phoenix, AZ......................................... 27
Johnson, Robert, Commissioner, Bureau of Reclamation, Department
of the Interior................................................ 8
Lundstrom, Patricia, Member of the New Mexico House of
Representatives and Executive Director, Northwest New Mexico
Council of Governments, Gallup, NM............................. 36
Sanchez, Mark, Executive Director, Albuquerque Bernalillo County
Water Utility Authority, Albuquerque, NM....................... 42
Shirley, Joe, Jr., President, Navajo Nation, Window Rock, AZ..... 20
APPENDIXES
Appendix I
Responses to additional questions................................ 53
Appendix II
Additional material submitted for the record..................... 75
NAVAJO NATION'S WATER RIGHTS AND MISCELLANEOUS WATER SUPPLY ISSUES
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WEDNESDAY, JUNE 27, 2007
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The committee met, pursuant to notice, at 2:30 p.m. in room
SD-366, Dirksen Senate Office Building, Hon. Jeff Bingaman,
chairman, presiding.
OPENING STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR FROM NEW
MEXICO
The Chairman. OK, why don't we go ahead and start the
hearing.
It's a pleasure to welcome everyone this afternoon, we have
a large contingent of people from New Mexico and Arizona who
have traveled across the country to be here, and we appreciate
everyone's efforts to be here today.
The purpose of the hearing is to receive testimony on S.
1171, that's a bill that I'm sponsoring, and that Senator
Domenici's sponsoring. It authorizes a settlement of the Navajo
Nation's water rights claims in the San Juan River Basin in New
Mexico.
Key features of the legislation include amendments to the
law of the Colorado River, an authorization to construct the
Navajo Gallup Rural Water Project, and an authorization to use
the reclamation fund to ensure that this settlement, as well as
other similar matters can be fully implemented.
A settlement as complex as this has many moving parts, a
number of the most critical ones have been delayed for years,
such as the environmental impact statement for the Navajo
Gallup Project. Secretary Kempthorne and his staff have worked
hard to get the process moving again, I'd like to take the
opportunity to acknowledge their hard work, and express my
appreciation for that effort.
Unfortunately, as the administration's testimony makes
clear, the Federal Government does not have a consistent view
on these matters. Over the last 4 years, the Federal Government
has committed almost $2.5 billion to settle water rights claims
in other parts of the West and has spent $1.6 billion to
address water issues in developing countries. We've even spent
$2.3 billion on water infrastructure and management in Iraq.
But now the administration is strongly opposing S. 1171 due to
its cost, which is less than a billion dollars, to be expended
over 15 to 20 years.
The basis of the legislation that we have introduced is an
April 2005 settlement agreement between the State of New Mexico
and the Navajo Nation, declaring the extent of the Nation's
water rights in the San Juan Basin. The agreement was long in
the making, but now appears to have a wide base of support.
Once again, it's clear that negotiated settlements are much
more productive than endless litigation.
As is evident from today's testimony, though, there's much
work left to be done, the bill involves a number of big issues.
First, it implicates the Colorado River. Accordingly, as with
everything involving the Colorado River, there are a number of
people trying to ensure the bill does not undermine their
interests, and others viewing this as an opportunity to further
issues that are best left to other contexts.
The hearing also involves the Federal Government's dealings
and responsibilities toward Native Americans, a relationship
the U.S. Supreme Court once characterized as, ``Moral
obligations of the highest responsibility and trust.''
Unfortunately, the administration will be adding another sorry
chapter to that ongoing story.
At the heart of today's hearing, and hopefully not lost in
the discussion, are the people who will be affected by this
legislation and this project. For too long, a large percentage
of Navajo people have gone without readily accessible drinking
water supplies. That's a convenience that other Americans take
for granted.
I hope that we can do justice to this issue today, and have
a productive hearing that will address the needs of these
individuals, and bring a settlement that will benefit all New
Mexicans.
With that, let me turn to Senator Domenici for his opening
statement, and then we'll turn to the first panel of witnesses.
STATEMENT OF HON. PETE V. DOMENICI, U.S. SENATOR FROM NEW
MEXICO
Senator Domenici. Thank you very much, Mr. Chairman.
I wonder, before I proceed, if I might as just a matter of
personal privilege, call to your attention, and to those that
are here, the fact that this young man behind us here, an
Albuquerquian, Nate Gentry, today is his last day. Maybe he
could stand up, and you and I could at least say thanks to him,
by applause.
[Applause.]
The Chairman. Yes, let me just interject, that Nate has
done great work for you on the committee, and has been a great
resource for the entire committee. He's doing what a lot of us
look forward to doing some day, and that is, going back to New
Mexico.
Senator Domenici. He is. He's going to practice law, and
he's going to practice, predominantly, water law, and he'll be
good at it. He's stayed as long as I could ever expect for
somebody as talented, and had other opportunities. That happens
to us, it happens to those who work for us. He knows what I
think of him, and I just wanted everybody to know that it's
young, talented people like this that make us look good
sometimes, like in this settlement that we're talking about
here, they've come up with some exciting ideas that are going
to make this settlement work, and he's been a part of that. So,
I'm proud of him.
Thank you, Senator Bingaman, for having this session, and
for permitting me to participate in a few opening remarks.
First, in a water-short State like New Mexico, decisions
regarding water use and allocation are too important to leave
up to the courts. As with all litigation, the outcome is
uncertain. Some argue against the settlement because they
believe the courts would allocate them more water than a
settlement would provide. While this may be true, it's quite
possible that the court could award a party much less.
An enormous benefit of Indian water rights settlements is
that they allocate water in a way that keeps everyone whole.
This settlement, when signed into law, will forever resolve the
water rights claims of the Navajo Nation in New Mexico.
Since my first term in office, I have dreamt of bringing a
reliable source of water to the Navajo Nation, and the city of
Gallup. The lack of water infrastructure on lands the Navajo
Nation owns and occupies is deplorable.
As we hear today, 40 percent of the Navajos have to haul
water. Since 1974, I've worked to further the Navajo Gallup
Water Supply Project, and I am particularly pleased that this
legislation provides for the construction of that project.
This settlement is expensive, however, when viewed in the
context of the Arizona Water Settlement Act, Mr. Chairman, and
the Snake River Settlement, signed into law by the President, I
believe that the proposed Federal contribution is reasonable.
I'm interested to hear from our administration witnesses
today as to why those settlements received the support of the
administration, and this settlement does not.
Secretary Kempthorne made a commitment to me before this
committee that he would make the New Mexico Indian water rights
settlements a priority--not just this one, there are two
others, or three others. He has kept that commitment.
He and his staff also deserve credit for advocating for New
Mexico Indian water rights settlements within the
administration. They have done so, and I am aware of that.
However, it has become clear that despite my repeated requests,
the Office of Management and Budget is not willing to provide
funding--at least the funding that we think is necessary--to
fulfill the terms of the New Mexico settlements.
Now, they are willing to put up some money, they just don't
believe that it's worth as much as we do, and we can't possibly
settle for what they're talking about.
I recently introduced legislation that would, in another
way, create a fund so that money for the New Mexico settlements
will be there when the settlements are ultimately approved by
Congress. Senator Bingaman has also proposed a way to fund this
settlement, contained in the bill that we're considering today.
While the two approaches differ somewhat, I am confident
that we can reach an agreement on how to ensure that New Mexico
settlements--this one and the others we have--are funded as
prescribed by the agreements and the court decrees.
I know that some have concerns with this settlement, but
please rest assured that I am committed, and I'm sure our
Chairman is, to work with all parties to address their concerns
as the bill proceeds through Congress.
I would like to welcome our witnesses, as our chairman has,
and look forward to their testimony.
I thank you, Mr. Chairman, and hopefully we'll finish this
today. Thank you.
The Chairman. Well, thank you very much.
Before I introduce the first panel, let me just do one
housekeeping matter. The committee has received a number of
additional statements and exhibits and testimony regarding the
bill that is before us today, and those items--as well as the
written submissions of all witnesses that testify today--will
be made part of the official record of the hearing.
Our first panel consists of two representatives from the
Department of Interior, Bob Johnson, who is the Commissioner of
the Bureau of Reclamation, and Carl Artman, who is the
Assistant Secretary for Indian Affairs. We welcome both of you.
Please go ahead and summarize your written statements. If you
would do so, after that, I'm sure each of us will have some
questions.
STATEMENT OF CARL ARTMAN, ASSISTANT SECRETARY FOR INDIAN
AFFAIRS, DEPARTMENT OF THE INTERIOR
Mr. Artman. Thank you, Mr. Chairman Bingaman and Ranking
Member Domenici, for inviting us to this hearing.
This is Commissioner Bob Johnson, from the Bureau of
Reclamation, and I am Carl Artman, Assistant Secretary for
Indian Affairs. We look forward to speaking to you about the
proposed S. 1171, and the water issues impacting the Navajo
Nation. We seek permission to submit our formal comments for
the record.
The water issues faced by the Navajo Nation, along with
other tribes and pueblos, throughout the West, are critical. We
are very aware of this fact by the nature of our
responsibilities, the work we've done in this area, and our
visits to the impacted reservations.
In fact, in a recent visit to the Navajo Nation, the
children shared with us some pictures they drew that highlight
the needs in very simple terms. ``No good water, need fresh
water.''
Secretary Kempthorne has committed himself to engaging in
the resolution of Indian water rights claims. He's committed to
bring his energy and experience to the table to achieve forward
progress, and tangible results. This commitment has not
wavered, and his actions--and those of the Department of
Interior--support this assertion.
S. 1171 proposes answers to important questions. Our
opposition to the bill, as drafted, is based in part on the
fact that we have not yet had a chance to assess and analyze
these issues, and develop our own baseline answers to these
matters. We seek to do this.
We believe that this analytical process--coupled with the
history of collaborative negotiation with all of the
stakeholders--will result in a settlement beneficial to all,
and cost-effective for the American taxpayer.
Again, thank you for holding this hearing, and for bringing
together all of the parties to partake in this necessary
discussion.
[The prepared statement of Mr. Johnson and Mr. Artman
follows:]
Joint Prepared Statement of Robert Johnson, Commissioner, Bureau of
Reclamation, Department of the Interior and Carl Artman, Assistant
Secretary For Indian Affairs, Department of the Interior
Chairman Bingaman and Ranking Member Domenici, we would like to
thank you for the opportunity to appear today to present the
Administration's views on S. 1171, the Northwestern New Mexico Rural
Water Projects Act. The Department of the Interior's support for
negotiated settlements as an approach to resolving Indian water rights
remains strong. The Administration, however, has concerns that S. 1171
would increase mandatory spending, delay the full cost of the
legislation beyond the 10 year Congressional scorekeeping window, not
provide for adequate cost sharing by non-Federal interests, and likely
include costs that exceed the Federal government's underlying
liability. The Administration did not participate in the drafting of
the water rights settlement embodied in S. 1171, and does not support a
water settlement under these circumstances. For these reasons, the
Administration opposes the cost and cannot support the legislation as
written. We would like to work with Congress and all parties concerned
in developing a settlement that the Administration can support.
S. 1171 would amend Federal statutes that relate to the Bureau of
Reclamation and the use of water in the Colorado River basin. Major
provisions include: (1) authorization for the Bureau of Reclamation to
construct and operate a pipeline (formally titled the ``Northwestern
New Mexico Rural Water Supply Project'', but generally known as the
``Navajo-Gallup Pipeline Project'') to bring water from the San Juan
River to the eastern portion of the Navajo Reservation, the Jicarilla
Apache Reservation, and the City of Gallup, New Mexico; (2) creation of
a Reclamation Water Settlements Fund in the Treasury that could be used
to fund activities under this bill and future Indian water rights
settlements, to be funded by the diversion of revenues from the
existing Reclamation Fund; (3) authorization for the Secretary of the
Interior to reserve up to 26 megawatts of power from existing
reservations of Colorado River Storage Project power for Bureau of
Reclamation projects for use by the Northwestern New Mexico Rural Water
Supply Project; and (4) authorization for the Secretary to rehabilitate
existing irrigation projects, develop groundwater wells, and establish
other funds for the benefit of the Navajo Nation. The bill also
includes provisions that would resolve the Navajo Nation's Federal
Indian reserved water rights claims in the San Juan River in New
Mexico, although the United States was not party to the final
negotiations on this issue.
the role of the criteria and procedures
The Administration has been actively engaged in the New Mexico
water settlements. You will recall, Mr. Chairman, that Secretary
Kempthorne committed during his confirmation to bringing his energy and
concern to the pending water settlements in New Mexico. Consistent with
this pledge, we have made it a high priority to better understand the
complex issues that must be resolved in each of the proposed New Mexico
settlements. Our water rights team has made several trips to New Mexico
to visit with the Pueblos, Tribes, the State, local communities, water
users, and other constituencies to these proposed settlements. A few
months ago, at the Secretary's request, key officials from the
Departments of Justice and the Interior and the Office of Management
and Budget traveled to Navajo country to observe first-hand the
difficult issues related to water delivery on the Reservation.
Mr. Chairman and members, we are keenly aware of the needs in this
area of the United States. On the Navajo Reservation, some people
routinely haul water for 20-30 miles several times a week to provide
for their basic household needs. Families must travel extended
distances to do laundry because washing machines require water hookups
which they do not have. There is no question that the Administration
officials who traveled to the Reservation came away with powerful and
indelible images as well as a better understanding of the needs of
Reservation inhabitants seeking access to basic services that are taken
for granted by all but a few Americans.
Nonetheless, despite our understanding of the human needs on the
Navajo Reservation, we firmly believe that the resolution of
substantive and procedural problems raised by this bill will require
the active involvement of all parties to the proposed settlement. It is
important to have an open and full discussion on all aspects of the
settlement, including the specific goals of the Navajo Nation and the
State of New Mexico for the settlement of these claims and whether
these goals can be met by alternative and potentially less expensive
means. This settlement was developed largely without Federal
involvement, and, consistent with Secretary Kempthorne's commitment to
address these issues, we would welcome the opportunity to continue to
engage with the Committee and proponents of this settlement to see if
we can identify areas of common ground sufficient to move forward with
the full support of the Administration.
One of the first steps in this process, Mr. Chairman, is for us to
acknowledge the three New Mexico settlement proposals that are now
being advocated to Congress. While the Navajo settlement in the San
Juan River is the subject of today's hearing, there are other
settlements proposed in New Mexico, as well as in other western states,
that require active Federal participation in negotiations. If enacted,
the cost of S. 1171, alone, is estimated to exceed 1 billion dollars.
If the other two proposals from New Mexico, Aamodt (involving the
Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque) and Abeyta
(involving the Pueblo of Taos), about which the Administration also has
raised serious concerns, were to be enacted as currently envisioned by
their proponents, total expenditures for Indian water rights
settlements in New Mexico alone are likely to exceed $1.5 billion.
The Administration believes that the policy guidance found in the
Criteria and Procedures for the Participation of the Federal Government
in Negotiations for the Settlement of Indian Water Rights Claims
(``Criteria'') (55 Fed. Reg. 9223 (1990)) provides a flexible framework
in which we can evaluate the merits of this bill. The Criteria provide
guidance on the appropriate level of Federal contribution to the
settlements, incorporating consideration of calculable legal exposure
plus costs related to Federal trust or programmatic responsibilities.
In addition, the Criteria call for settlements to contain non-Federal
cost-share proportionate to the benefits received by the non-Federal
parties, and specify that the total cost of a settlement to all parties
should not exceed the value of the existing claims as calculated by the
Federal Government. As we have testified previously, the Criteria is a
tool that allows the Administration to evaluate each settlement in its
unique context while also establishing a process that provides guidance
upon which proponents of settlements can rely.
provisions of particular concern in s. 1171
We would like in the remainder of this statement to provide a
synopsis of substantive concerns regarding S. 1171. We will start with
the high cost of this settlement. The Administration has concerns about
the costs associated with this legislation, and currently opposes the
nearly $1 billion financial commitment embodied in this bill. We are
also concerned about the large number of authorizations that the bill
contains, including the indefinite amount authorized for construction
of the Navajo-Gallup Pipeline. We have not yet been able to fully
analyze the costs of this legislation. In 2005, the Bureau of
Reclamation estimated that the price of the Navajo-Gallup pipeline
would be approximately $716 million. Reclamation is in the process of
updating this appraisal-level price estimate to better reflect current
construction conditions, and expects an upward adjustment to nearly $1
billion for this feature alone. In addition, S. 1171 would authorize
Federal expenditures of $30 million for groundwater wells, $23 million
for rehabilitation of Fruitland-Cambridge and Hogback-Cudei irrigation
projects, $11 million for other irrigation projects, $5 million for
hydrographic surveys, and $50 million to be placed in a Navajo Nation
Water Resources Development Trust Fund to be used by the Navajo Nation
for water facility construction and maintenance or implementation of
water conservation measures.
The Administration has serious concerns regarding the proposal
contained in Title II of this bill to establish a ``Reclamation Water
Settlements Fund'' within the United States Treasury. Title II provides
that revenues of up to $100 million a year for fiscal years 2018
through 2028, which is a time period outside the Congressional
scorekeeping window, be diverted from the Reclamation Fund into the
Water Settlements Fund. S. 1171 provides that moneys in the Water
Settlements Fund would be available without further appropriation to
fund water supply infrastructure authorized under this bill if there
turns out to be insufficient funding available through the regular
appropriations process to meet the funding and construction deadlines
established in this bill. The second priority for the Water Settlements
Fund would be to implement other Indian water rights settlements
approved by Congress, including water supply infrastructure,
rehabilitation of water delivery systems, fish and wildlife restoration
or environmental improvement. The Reclamation Water Settlements Fund
would terminate in 2030 and any remaining balance would be transferred
to the General Fund of the Treasury.
We believe the sponsors of this legislation are looking for stable
mechanisms to ensure the availability of funding for Indian water
rights settlements around the West. We are concerned, however, that
this proposal would allow direct spending not subject to further
appropriations for future settlements, preventing future Presidents and
Congresses from setting their own priorities with regard to budgeting
and appropriating Federal tax dollars. At the present time, use of
monies from the Reclamation Fund are discretionary and subject to
annual appropriations by Congress.
While S. 1171 does require some cost-sharing in the form of a
requirement for partial reimbursement of construction costs from the
City of Gallup and the Jicarilla Apache Nation, it is limited. The City
of Gallup and the Jicarilla Apache Nation would be required to repay
the portion of the construction costs for the pipeline and associated
facilities that the Secretary would allocate to them as their
responsibility, but only to the extent of their ability to pay, or
alternatively, a minimum of 25% of such allocated construction costs,
within 50 years of project completion.
Project proponents assert that the Navajo-Gallup Pipeline Project
would qualify as a rural water project under the rural water program
being established by the Bureau of Reclamation pursuant to the Rural
Water Supply Act of 2006 (P.L. 109-451), legislation which was passed
in December of 2006. However, the proposed pipelines envisioned by this
bill have not received the level of scrutiny that this newly
established program will provide. Under the rural water program, each
project must be investigated prior to authorization, and the Secretary
must consider whether the non-Federal project entity has the capability
to pay 100 percent of the costs associated with the operations,
maintenance, and replacement of the facilities constructed or developed
as part of the rural water supply project. The Secretary must also
recommend an appropriate non-Federal cost-share for the proposed rural
water project based on the capability-to-pay of project sponsors, or at
least 25% of total construction costs. The program allows the Secretary
to consider deferring construction costs allocated to Indian tribes.
Under this new program, the Secretary is to forward to Congress
recommendations regarding whether or not the proposed rural water
project should be authorized for construction based upon appraisal
level and feasibility studies and the eligibility and prioritization
criteria developed pursuant to the Rural Water Supply Act. The rural
water program is intended to target communities of 50,000 inhabitants
or fewer. The Secretary may require larger communities to pay a higher
portion of project costs. Since Reclamation's rural water program is
still under development, we have not evaluated the activities proposed
in S. 1171 under the rural water project eligibility and prioritization
criteria; these criteria are currently being developed by Reclamation.
Upon development, we will actively evaluate whether this project would
meet such criteria and could be recommended to Congress for
authorization as a rural water project.
We have identified a number of other concerns regarding this bill.
These include potential interpretation conflicts concerning the Navajo
Indian Irrigation Project; the timing of transfers of title to the
Nation; the authorization of Federal grants to support the repair and
rehabilitation of certain irrigation projects, and concern that this
bill might give the State of New Mexico an inappropriate role in the
operation of Federal facilities that are currently operated by the
United States under the Colorado River Compact and Reclamation law.
Also, the Department of Justice has concerns about the waivers and
releases referred to in section 403. First, they are still reviewing
these waivers and releases for adequacy. Second, waivers and releases
should be stated in full in the legislation because they are critical
to the finality of the agreements.
We also note that the bill should require the Secretary of the
Interior, rather than the Secretary of the Treasury, to invest amounts
in the proposed Reclamation Water Settlements Fund, in order to make
use of the investment expertise of Interior's Office of the Special
Trustee for American Indians.
comparing this bill with other water rights settlements
Much has been said about the position taken by the Administration
on water rights and other settlements over the past few years,
suggesting that not supporting S. 1171 as written would be inconsistent
with the positions we have taken on previously introduced water
settlement bills. We want to squarely address these issues.
First, we emphasize that each proposed settlement is unique. The
Administration evaluates each proposed settlement individually. Just as
we did with each of the water settlements that have been proposed in
recent years, notably the Arizona Water Rights Settlement Act (P.L.
108-451), the Snake River Water Rights Settlement Act (P.L. 108-447),
and the San Joaquin River settlement that is proposed in legislation
pending in this Congress (S. 27 and H.R. 24), the Administration must
evaluate this proposed settlement in its unique context to determine to
what extent it is consistent with our programmatic objectives and our
responsibility to American taxpayers as well as our responsibility to
protect the interests of the Navajo Nation. All of these previous
settlements encompassed multiple objectives, providing comprehensive
solutions to multi-faceted problems.
In the case of the Arizona Water Rights Settlement Act, the
settlement resolved a dispute over the financial repayment obligation
of Arizona water users for the Central Arizona Project (CAP), with
significant amounts of money at stake. Federal representatives
recognized that the CAP operational flexibility necessary to resolve
the dispute could only be granted if sufficient legal and legislative
protection was achieved to assure tribal access to, and use of, CAP
project water. Enactment of the Indian water rights settlements in that
Act was key to resolving larger legal issues involving CAP repayments
by Arizona water users. Achieving final settlement of these larger
issues made the legislation generally acceptable to the Administration,
although our testimony did express concern about the cost of the
settlement.
The Snake River Settlement in Idaho entailed several complex
Endangered Species Act components that allowed further water resources
development to occur for the Nez Perce Tribe and other water users in a
manner that also fulfilled the Department's obligation to protect and
recover listed species.
The other settlement that has been compared to this bill, the San
Joaquin Restoration Program, is in fact not connected to any Indian
water rights settlement. The San Joaquin Restoration Program implements
a settlement of a lawsuit that had been ongoing for over eighteen
years, where a Federal judge had concluded that Reclamation's
operations violated a provision of California law. The San Joaquin
restoration program also involves cost shares, authorizing up to $250
million of new Federal appropriations but only as a match for non-
Federal funding of the restoration costs. This means that the State of
California and Friant water users are funding a significant portion of
the restoration costs. Approximately $200 million of State bond funds
for projects that will directly contribute to restoration efforts have
already been approved by California voters.
We wish to reiterate however that the Administration is committed
to ensuring consistency with the Criteria and Procedures. The
settlement of the Navajo claims to the San Juan River proposed in this
bill has a high Federal cost without appropriate safeguards that
carrying out the authorized activities would accomplish the goals and
objectives of the proposed settlement. These kinds of analyses should
be completed prior to the passage of such a large settlement proposal.
In light of the goal of finality, it is especially troubling that this
bill does not address the distribution systems that must be constructed
before any water will actually reach the homes of those who need it.
conclusion
The Administration and Secretary Kempthorne remain committed to
supporting the Indian water right settlement process and ensuring that
such settlements fulfill the Federal Government's responsibilities to
Indian Tribes while also protecting the interests of the taxpaying
public. The Bureau of Reclamation, the Secretary's Indian Water Rights
Office, and many others in the Department are vigorously working to
develop the information and documentation necessary to support a full
and open discussion of this settlement. This includes already having
developed a draft environmental impact statement on the proposed
pipeline and completing the hydrologic determination on water
availability in New Mexico. We expect to have an updated appraisal-
level estimate of the costs of constructing the pipeline completed in
the near future.
The Administration hopes that the entities proposing this
legislation, including the Navajo Nation, the City of Gallup, the State
of New Mexico, and the Jicarilla Apache Nation, will agree to work
together with us towards the common goal: a settlement that will ensure
that the Navajo obtain a secure, economically beneficial water supply
consistent with our obligations to the taxpaying public. A clean,
reliable water supply is of utmost importance to the members of the
Navajo Nation, as it is to all Americans, and the United States is
committed to working towards achieving it. While much work remains
ahead, we are hopeful that this hearing will assist in advancing a
process that results in a successful outcome.
Mr. Chairman, this completes our statement. We would be happy to
answer any questions the Committee may have.
The Chairman. Mr. Johnson, did you wish to give us some
testimony?
STATEMENT OF ROBERT JOHNSON, COMMISSIONER, BUREAU OF
RECLAMATION, DEPARTMENT OF THE INTERIOR
Mr. Johnson. Just a short statement, Mr. Chairman.
It's a pleasure for me to be here and offer some oral
remarks on the settlement and S. 1171.
I might just say that it's been my personal pleasure to
work with the Navajo Nation for a long time. Parts of the
Navajo Nation are located within the lower Colorado region of
the Bureau of Reclamation, where I served as Regional Director
for approximately 11 years. I have visited the Nation a number
of times, and am familiar with the water needs of the Navajo
people.
When I was regional director, we provided technical
assistance and funding for a number of programs and projects on
the reservation, most notably, the rehabilitation of the Ganado
and many farms irrigation projects.
Similarly, Reclamation's Upper Colorado Region has provided
significant planning, technical and construction assistance to
the Nation. That office has been involved in managing the
construction of Navajo Indian Irrigation Project, and will also
be constructing the water supply pipeline to serve the Navajo
Nation from the Animus La Plata Project.
Most recently, our Upper Colorado Region has led the effort
on the planning and environmental analysis for the Navajo
Gallup Water Supply Project, which is contemplated in S. 1171.
This spring, Reclamation issued a planning report draft
Environmental Impact Statement for the project, and very
recently, conducted public hearings on the project. The public
comment period ends this week, and over the next several
months, we will be evaluating those public comments, and
preparing a final Environmental Impact Statement and a Record
of Decision.
In addition to that, we're working hard on updating the
cost estimate, we're going back and trying to provide some more
detail into updating the pricing of the project. Our schedule
calls for us to have that completed by September of this year.
We've also, in a parallel effort, completed a hydrologic
analysis, to affirm the availability of water supply for the
project, as required in the Navajo Indian Irrigation Project in
San Juan Chama Projects Act of 1962. After careful consultation
with all 7 Colorado River Basin States, Reclamation has
concluded that adequate water supplies are available to meet
the additional water needs contemplated in the Navajo Gallup
water supply pipeline.
Secretary Kempthorne signed that hydrologic determination
just a few weeks ago.
While we do not support S. 1171, as written, we are
committed to working with the Congress, and other parties
involved in the settlement, to find common ground on the
multitude of issues identified in our written testimony.
Mr. Chairman, this concludes my oral statement, we would be
glad to answer questions.
The Chairman. OK, thank you very much.
Let me start, and just ask a few questions. Obviously, I'm
disappointed with the position that the administration has
taken. As I understand part of the justification for your
opposition, the administration's opposition is that you've
indicated the Federal Government has not been involved in
settlement drafting, and therefore opposes the legislation. I
have a letter dated December 2001, where I requested the
Federal Negotiating Team be appointed to work on this, and we
also have a letter in June of the following year, 2002,
agreeing to the appointment of a Negotiating Team, to work with
the Navajo Nation and the State of New Mexico to try to get
this resolved.
So, I'm not clear what has happened in the 4 years since
that Negotiating Team was appointed, I guess they have not been
involved, is what you're now testifying, is that correct?
Mr. Artman. Thanks for the question, Senator.
You're correct--a team was appointed in 2002 to examine
these issues, and there has been engagement with the tribe on
these matters. Engagement has taken the form of the
hydrological study that was referenced, the draft Environmental
Impact Statement, public hearings, five separate meetings,
recently, with the Navajo Nation to discuss these specific
issues, and more meetings scheduled to come ahead.
In drafting any settlement, we haven't reached the point
yet where we have the settlement that we participated in, with
all of the parties around the table, and that's something
that's certainly necessary for us.
The bill, S. 1171, represents a possible solution. But, a
solution that--at the moment--doesn't have the administration's
concerns reflected in it. Concerns about our trust
responsibilities--what are the parameters of those trust
responsibilities? In order to ascertain those sorts of issues,
we need to have discussions with the tribe and other parties at
the table and go through our own assessments and analysis of
that.
There may be other parties, Federal parties at the table,
such as IHS, for the drinking water response, the drinking
water pipeline, and those related responsibilities.
So, we are currently engaged in the process, but we haven't
reached the point where we've come up with a collaborative
settlement, which is what we would request to do at this point.
The Chairman. Well, I guess my frustration on this--of
course, I think anyone who gets involved in water settlement
issues knows that it's going to take many years. Certainly,
this did take many years. The Navajo Nation worked hard at it,
and the State of New Mexico worked hard at it, and everybody
sort of agreed 2 years ago, in 2005, on a settlement of these
various issues. Of course that's what's happened, and now it's
almost as though the Federal Government's parachuting into this
situation and saying, you know, ``What about us?''
It's just not a credible response to come in 2 years after
a settlement has been negotiated, and 4 years after a Federal
Negotiating Team was appointed to work on this issue, and say,
``We need to get involved.'' I mean, I don't know--at some
point there's got to be closure to this, and it seems to me
that the Navajo Nation and the State of New Mexico have worked
in very good faith to try to bring this to closure, and the
Federal Government's been AWOL, is essentially what you're
saying.
Mr. Artman. I certainly agree that the parties have--the
State of New Mexico and the Navajo Nation have--come to the
table and have discussed this settlement. As has been noted,
Secretary Kempthorne committed to, and has exemplified a
commitment to settling water issues in New Mexico--this one or
others that are currently in discussion right now. I think that
if you look at the actions of the Department of Interior, now
and going forward, and in the recent past, we have exhibited
that sort of forward-progress desire, and a desire for results.
Also one for collaboration.
The Chairman. I don't know how quickly you're expecting
results, but this administration will be in office another 18
months, and then we're on to a new administration. I have great
difficulty seeing why we can't proceed on the basis of what has
been agreed to by the Navajo Nation and the State, and proceed
with this legislation.
Let me ask about one other issue, and then defer to Senator
Domenici. You also expressed grave concern about the use of
these revenues from the Reclamation Fund as a way to help
ensure implementation of the settlement. You object that our
legislation on the use of these funds would bind future
Presidents and Congresses. Why didn't you take that same
position when considering the Lower Colorado River Basin Fund,
and the Arizona Water Settlement Act? That certainly binds
future Presidents and Congresses, as I understand it. The same
question, as I understand it, the San Joaquin Water Settlement,
that is currently pending in this committee, involved direct
spending obligations, which bind future Presidents and future
Congresses. Why object to that kind of a provision here, when
you don't object to it in those circumstances?
Mr. Johnson. I guess the first point that I would make is--
and I've been involved in a lot of Indian settlements, and a
lot of water settlements over the years, and--there's no two of
them that are alike, they're all unique, they all have a unique
set of circumstances, and you have to evaluate those projects
on a case-by-case basis.
In the case of the San Joaquin, that's not an Indian
settlement, it's a settlement of a longstanding environmental
litigation where a judge had ruled against us, and where we
needed to settle with the local parties on that issue, or risk
substantial losses in other ways.
The amount there is quite a bit smaller, and there was a
significant amount of non-Federal cost-sharing, cost matching,
in fact, that helped bring that one together.
The monies that do come out of the Reclamation Fund are
actual moneys that are part of a repayment obligation of the
Friant Water users, so it's revenues that are flowing in from
that project, that are being tapped to help fund that project
over a period of time.
So, that's the differences as it relates to that.
The Central Arizona settlement was also, you know, very
large, very complicated, no question about it. There we had a
longstanding litigation over repayment of the project, which
was a very complicated issue where there was a lot of Federal
financial interests at stake. There was a significant new
amount of water supply that was being obtained for Indian
settlements in the future that had very significant value that
made that project more attractive. Although, quite frankly,
from the administration perspective, when that got passed,
there was also concerns about costs there, as well.
So, anyway, they're all unique, they're all complicated,
and we have to evaluate them on a case-by-case basis.
The Chairman. Senator Domenici.
Senator Domenici. Well, I don't think it does much good to
tell us that Secretary has really been interested, and has
really been positive. He talked to me publicly during his
confirmation process, and he talked to me in my office before
the confirmation process.
But, so he's interested--all of this time has passed, and
here come his two chief people, and all they have to tell us is
that we're not ready, that there's still a lot of work to be
done. I tell you, for 5 years, I've been pleading with the
administration to work with the parties to the New Mexico
Indian Water Rights Settlement.
Now, you state in your testimony that the administration is
unable to support this settlement, because you were not
involved in the negotiations relating to the settlement. I tell
you, I find this very frustrating. From my standpoint, if the
Chairman is ready, I'm ready to proceed. We'll see if you are
needed, or not. Whether we need further consultation, as you
speak about, or not.
I believe that these rights are long overdue, and this
settlement is long overdue. I think we have found the source of
money that we will let the Congress pass on, here. You say it
shouldn't be used, we say it's OK. You say it binds future
Presidents, all direct spending binds future Presidents, and
we'll just take our chance at it as we move through here. We
may do it a little differently, but from my standpoint, it's
the best source of money we've found.
Mr. Chairman, I'm ready to--instead of relying on them, I
think I'm ready to rely upon the Senate and the House, and hope
they pass it, and then see what the President does. I believe
that the President had this matter before him, he doesn't know
anything about it, because nobody tells him.
I mean, this case is stopped by the OMB, not you all. Just
tell us the truth. OMB doesn't want this much money spent on
this case, and they've done it on every water case in New
Mexico. Now they've got a new fellow over there. I know him
well, too. Believe it or not, just today I told him, we've got
some water cases that might, you know, just might be that you
won't get confirmed. But, we're going to find out what you
have, what kind of guts you have in that, with reference to the
water cases. I'm telling you the truth--I don't expect OMB to
get in the middle of this case again, it's too late. From my
standpoint, they've had their shot, and they have not been very
constructive from what I can see.
So, I don't have any further questions, because I don't
know what to ask you, because you don't know anything. I mean,
you weren't there, you aren't there, you weren't invited. I
don't know what to ask.
I don't know what to ask you, Commissioner. You know all
about this--these kind of things, but I really, honestly, don't
know--why don't you tell me, why can't we proceed with this
case, quickly--why should it take very long? Based upon the
facts as we understand them?
Mr. Johnson. Well, I think all the concerns are laid out in
the written testimony, but I think we are prepared to renew our
commitment to sit down and work. I think that Secretary
Kempthorne is, in fact, very sincere in his statements and in
his desire to move forward on Indian settlements, all of the
interaction that I have had with him, that's been reinforced.
So, you know, I think we are ready to sit down and engage in a
dialog.
Senator Domenici. Maybe that's the case, and maybe dialog
is what's needed. I kind of feel like we're past dialog, but
maybe we're never past dialog until it's finished. But, we'll
see.
Thank you, Mr. Chairman.
The Chairman. Thank you very much.
Let me ask one other question before we go to the second
panel.
In your testimony, you also raise the question of whether
this settlement can be met by alternative, and potentially less
expensive means. You've made reference to this EIS,
Environmental Impact Statement that identifies what they've
called ``the superior alternative'' from an economic, and an
environmental, and an overall perspective. What else is there
that you're thinking of? I mean, I thought that that was what
the EIS was focused on, was determining what is the best way to
accomplish this objective, but your testimony seems to be
suggesting that there's something else that should be done to
determine what the best alternative is. Could you clarify what
you've got in mind?
Mr. Johnson. Well, there's no question we did identify a
preferred--what we call a preferred alternative, in the draft
EIS. That's usually the case when we put out an EIS, we
evaluate a draft, a draft alternative--or a preferred
alternative.
I suppose I would differentiate between what we would call
a preferred alternative among the alternatives that we
evaluated, and given the planning objectives that were laid out
and jointly worked on with all of the parties. Maybe contrast
that with the proposed alternative. I don't think we could say,
at this point, it's a proposed alternative, it's a little bit
of a different beast than a preferred alternative.
Again, I think we're ready to sit down with all of the
folks that are involved and talk about that in more detail on
what, if anything, can be done to reduce the costs of the
project. I think a lot of it comes back to the costs, and the
level of costs, and is there any way that we can find to reduce
those costs. I think that's really what's being referred to.
The Chairman. But, you're conceding that if you want to
accomplish the objectives that have been agreed upon by the
parties, you have already identified the preferred way to do
that, through this Environmental Impact Statement.
Mr. Johnson. Preferred among the alternatives that were
evaluated, yes.
The Chairman. But you're saying that you didn't evaluate
the right alternatives?
Mr. Johnson. Well, you know, I think that's something that
we can, you know, have some dialog around and, again, you know,
see if there's anything at all that's out there that's a way to
reduce the costs. I don't know if there is or not, but I think
that's part of the dialog that we think we can have.
The Chairman. Well, to the extent that you want to have
dialog, I would urge that it's long overdue, and I would urge
that you do it quickly. Because we're planning to go ahead with
this legislation, and if you have input that we haven't heard
that is specific, we need to hear it, quickly.
All right, thank you both very much for being here, and
we'll just have the second panel come forward.
Senator Domenici. Mr. Chairman, who would they do that
with? Who would they get with, the Navajo Nation?
The Chairman. I would assume, the Navajo Nation and the
State of New Mexico.
Senator Domenici. That's it, right?
Mr. Johnson. That's primarily it, and you know, to the
extent that there's other parties that have interests,
certainly they could, would be part of that, too, if there's
issues that affect them.
The Chairman. Let me just check here.
We're advised there's going to be a vote quickly, but
knowing the way this place works, why don't we call the second
panel forward and get started, and we'll see if the vote
actually occurs when it's supposed to.
OK, thank you all for being here, this second panel is made
up of John D'Antonio who is our New Mexico State engineer,
thank you for being here. President Joe Shirley of the Navajo
Nation, thank you for being here, President Shirley. Herb
Guenther is the Director of the Arizona Department of Water
Resources. Patricia Lundstrom is a State representative from
New Mexico, also the Executive Director of the Northwest New
Mexico Council of Governments, and Mark Sanchez is here as the
Director--Executive Director of the Albuquerque Bernalillo
County Water Utility Authority.
So, we welcome all of you, and we will include your entire
testimony in the record, as I stated before, but why don't you
summarize, in a few minutes, the main points you think we ought
to understand. We'll just start with our State engineer and go
right across.
We may have to interrupt things in order to go vote. In
fact, I see a light on up there. Before we start, should we go
ahead and vote? I think, clearly we're not going to be able to
get through all of the testimony, so why don't we give you all
a break here, we'll go vote, and we'll be back in about 10
minutes, and then we'll proceed with the testimony. Thanks.
[Recess.]
The Chairman. All right, thank you all very much. We
apologize for the delay, but why don't we go right ahead, and
each of you summarize your testimony, and then I'm sure Senator
Domenici and I will each have questions.
So, Mr. D'Antonio, thank you again for being here, and go
right ahead.
STATEMENT OF JOHN R. D'ANTONIO, JR., NEW MEXICO STATE ENGINEER,
SANTA FE, NM
Mr. D'Antonio. Good afternoon, Chairman Bingaman, Ranking
Member Domenici. Thank you for your supportive comments just a
few minutes ago.
My name is John D'Antonio, I'm the New Mexico State
Engineer. I appreciate the opportunity to appear before you
today, and provide comments on behalf of the State of New
Mexico in support of the Northwestern New Mexico Rural Projects
Act.
The Act will authorize construction of an important rural
water system for the Navajo Nation, the Jicarilla Apache
Nation, and the city of Gallup, and will resolve the Navajo
Nation's claims in the San Juan Basin of New Mexico.
This project is vital to solving the acute water supply
conditions facing much of Northwestern New Mexico, including a
large portion of the Navajo Nation. The project is the backbone
of a regional water supply system that will enable the Navajos
to receive water, a basic need that virtually all other U.S.
citizens take for granted.
By 2040, the project is expected to serve approximately a
quarter of a million people, including the residents of Gallup,
and will serve a very large area, requiring over 800 miles of
pipeline. The cost of the project is high, but the project
costs can be appropriated over several years, and can be
supplemented through the Reclamation Settlement Fund, created
by title II.
New Mexico has already stepped up to the plate by investing
approximately $25 million toward settlement-related projects.
Our legislature recently created the Indian Water Rights
Settlement Fund, and has appropriated $10 million this past
session.
New Mexico commends Senators Bingaman and Domenici for
their recent communications with the Office of Management and
Budget regarding the need to treat New Mexico's water rights
settlements fairly and consistently, as with other settlements
around the West.
New Mexico is disappointed with the administration's
position regarding the Navajo Settlement and this legislation,
however, New Mexico is willing to discuss the administration's
issues through the process proposed in their testimony.
The legislation will approve a comprehensive settlement of
the Navajo Nation's water rights claims in the San Juan Basin
in New Mexico. After years of difficult negotiations, the State
of New Mexico and the Navajo Nation entered into a settlement
agreement in 2005 that represents a fair and equitable
resolution.
The settlement protects existing water uses within the
Basin, and protects the San Juan-Chama Project. I firmly
believe that we have come as close as possible to a resolution
that provides maximum benefits and protections for all water
users.
New Mexico is willing to confer with water users to clarify
any issues in this legislation. An important benefit of the
settlement is that water supply will fit within New Mexico's
Upper Colorado River Compact apportionment without displacing
any existing water uses within New Mexico, and the Upper
Colorado River Commission has already expressed support for the
settlement project, and the legislation.
The Secretary of the Interior recently confirmed that
sufficient water is available for the settlement project
without harm to other Federal projects, including the San Juan-
Chama Project.
In response to the issues raised by the State of Arizona,
New Mexico believes that the settlement agreement in Senate
bill 1171, preserves Arizona's rights to negotiate its own
settlement for the Navajo Nation, and New Mexico encourages
Arizona, and the Navajo Nation as they continue to work toward
a resolution of their outstanding issues.
New Mexico has been able to accommodate some of Arizona's
concerns, but many of Arizona's concerns go beyond the scope of
our settlement. New Mexico is willing to confer with any of the
Colorado River Basin States, as necessary, to explain the
settlement agreement, or discuss their concerns.
New Mexico recognizes the complicated nature of the law of
the Colorado River, and has worked with other basin States on
mutually acceptable legislative provisions. The recent, and
ongoing, cooperation among the Colorado River Basin States, in
connection with the coordinated operations of Lakes Mead and
Powell, has given rise to a new spirit of open communication
and compromise, that New Mexico hopes will continue for years
to come.
Mr. Chairman and Ranking Member Domenici, the State of New
Mexico asks for your support for Senate bill 1171, I know you
do, and thank you for your time and consideration of this
important piece of legislation that authorizes this critical
project for New Mexico.
That concludes my presentation.
[The prepared statement of Mr. D'Antonio follows:]
Prepared Statement of John R. D'Antonio, Jr., New Mexico State
Engineer, Santa Fe, NM
Mr. Chairman and committee members, I am John D'Antonio, New Mexico
State Engineer. I appreciate very much the opportunity to appear before
you today and provide comments on behalf of the State of New Mexico in
support of the Northwestern New Mexico Rural Water Projects Act, S.
1171.
This legislation will authorize construction of an important rural
water system for the Navajo Nation, the Jicarilla Apache Nation and the
City of Gallup.
It will also resolve long-standing water issues between the Navajo
Nation and the State of New Mexico in the San Juan River Basin of New
Mexico by authorizing a comprehensive settlement agreement. The
legislation clarifies provisions of existing law and provides guidance
regarding regulations that will be developed to implement the
settlement provisions.
The State of New Mexico and the Navajo Nation reached this
settlement after decades of disagreement and many years of intensive
settlement talks. It is no small matter that we appear before you
today, together, urging the United States to join us as signatories to
the settlement agreement.
We believe this legislation has been carefully crafted to address
water supply needs within New Mexico and protect the long-standing Law
of the Colorado River while building off the recent cooperation and
agreements among the Colorado River Basin states.
I would like to discuss these issues in further detail.
rural water supply project
The legislation would authorize the Northwestern New Mexico Rural
Water Supply Project. This project is vital to solving the acute water
supply conditions facing much of northwestern New Mexico, including a
large portion of the Navajo Nation. The project is described in detail
in the final draft Environmental Impact Statement recently released by
the Department of Interior. The project builds off of an existing
Colorado River Storage Project Act reservoir, and is supported by a
federal planning process that has been underway for over 30 years. The
State of New Mexico looks forward to receiving the Bureau of
Reclamation's feasibility level design cost estimates for the project
in the near future so that progress can continue toward a final EIS and
project construction.
As demonstrated through many of the comments presented to the
Bureau of Reclamation in response to the draft EIS, today more than
half of rural Navajos in New Mexico must haul water for many miles to
receive a basic domestic water supply. The reality faced by Navajo
families was highlighted in a recent PBS documentary, developed with
the assistance of the State of New Mexico, and many viewers were
shocked to realize the primitive conditions suffered by Navajo people,
who currently have to travel many miles each day to fill up tanks at
water supply stations and haul them home again. The BOR heard comments
on the draft EIS from several Navajo citizens including a Navajo Code
Talker who described his daily hardships and another veteran who
lamented his inability to utilize the GI home loan program because of
the lack of fire hydrants where he lives. During one public meeting,
grade school children presented drawings of trucks carrying water tanks
as description of their current water supply systems.
By providing the backbone for a regional water supply system, the
project will enable the Navajos to receive water--a basic need that
virtually all other U.S. citizens take for granted.
The project will also enable the City of Gallup to acquire a
renewable surface water supply. Currently, Gallup faces quickly
declining groundwater supplies with the prospect of severe shortages
within 20 years. Finally, the project will deliver water to the
Jicarilla Apache Nation for use in the water scarce southern portion of
the Apache reservation.
By 2040 the project is expected to serve approximately 250,000
people, including the residents of Gallup. The project would be the
second biggest water utility in the state, smaller only than the
Albuquerque Bernalillo County water utility.
Because the project will serve a very large area and contain over
800 miles of pipeline, the cost of the project is high. But, the
project costs can be appropriated over several years, and the
Reclamation Water Settlements Fund, to be created by Title II of S.
1171, provides a reasonable means of funding project costs if
sufficient appropriations have not been made by 2018.
In recognition that the state will incur costs associated with its
Indian water rights settlement projects, including the Navajo
Settlement, the State of New Mexico has made initial contributions to
the New Mexico Indian Water Rights Settlements Fund (NMSA 72-1-12). In
addition, over the last 4 years, the state has invested approximately
$9.7 million in a Gallup regional distribution system and, this year,
the New Mexico legislature appropriated $15.3 million to be used for
construction of the ``Cutter Lateral'' pipeline on the eastern side of
the project. New Mexico recognizes the importance of funding rural
water supply and Indian water rights settlement projects and looks
forward to a federal commitment commensurate with the federal
government's trust and statutory responsibilities. New Mexico commends
Senators Bingaman and Domenici for their recent communications with the
Office of Management and Budget regarding the need to treat New
Mexico's water rights settlements fairly and consistently vis-a-vis
other settlements around the country.
benefits of the navajo settlement
In addition to authorizing a project that would provide a secure
source of drinking water for Navajo and Apache communities and for the
City of Gallup, the legislation would approve a comprehensive
settlement of the Navajo Nation's water rights claims in the San Juan
Basin in New Mexico. Navajo claims to the San Juan River have long-
threatened the security of water rights of all other water users within
the basin. After years of difficult negotiations, the State of New
Mexico and the Navajo Nation entered into a settlement agreement in
2005.
The State of New Mexico strongly believes that the settlement
represents a fair and equitable resolution, and we respectfully ask
this Committee to support it. The San Juan River, like most rivers in
the southwest, does not produce enough water to meet all claims for
current and future uses. Under the settlement, the Navajo Nation agrees
to substantially reduce its claims in exchange for the wet water
supplied by the proposed project.
Before signing the settlement agreement, the State of New Mexico
carefully considered the needs of non-Navajo water users in the San
Juan Basin, and over the course of several years, the state met many
times with water user groups, took formal public comments, analyzed
alternatives and worked tirelessly to negotiate the agreement in order
to resolve the concerns voiced. Some of the most difficult negotiations
centered on numerous changes to the settlement agreement that provide
additional protections for third parties. The State of New Mexico has
reviewed the settlement agreement and proposed legislation from a
perspective of protecting all water users within the state, including
San Juan-Chama Project water users, and the state believes the
settlement benefits and protects those water users.
I firmly believe that we have come as close as possible to a
resolution that provides maximum benefits and protections for all water
users, given limitations of water supply and potential uncertainties of
its allocation if the Navajo claims were litigated.
To underscore this point, I want to outline some of the most
important provisions built into the settlement to protect non-Navajo
water users.
Under the settlement, the Navajo Nation accepts compromises
regarding both the quantity of its water rights and administration of
its priority dates, with the result that Navajo claims fit within New
Mexico's apportionment of the Upper Colorado Stream System and will not
displace other existing uses and projects.
Under the settlement, the quantity of Navajo water rights would be
made up of essentially three components. First, the settlement
recognizes the existing uses of the Navajo Nation, including its old
irrigation projects Hogback and Fruitland diverting directly from the
San Juan River for authorized irrigation of approximately 12,000 acres.
Second, the settlement recognizes the Navajos' largest right, its right
to irrigate over 110,000 acres that comprise the Navajo Indian
Irrigation Project (NIIP), authorized by Congress in 1962 by Public Law
87-483. Finally, the only ``new'' water the Navajos will receive is
almost 21,000 acre-feet a year of water to supply domestic and
commercial uses for the Navajo portion of the Northwestern New Mexico
Rural Water Supply Project.
Regarding the large Navajo Indian Irrigation Project right,
Congress authorized an annual diversion of 508,000 acre-feet; however,
the Navajos through conservation are agreeing to limit diversions to
353,000 acre-feet and could only exceed that amount by obtaining a
State Engineer permit assuring that no other water users would be
impaired by an increase.
With respect to priority dates, under the federal reserved water
rights doctrine, the Navajos could claim an 1868 priority, the date of
their reservation. Under the prior appropriation doctrine, the Navajo
Nation, as most senior water right holder, could call for all its water
before anyone else on the San Juan River. Even with reduced quantities
as provided under the settlement, an 1868 priority would threaten
frequent curtailment of other water users. Consequently, the Navajos
are agreeing that NIIP and the proposed rural water supply project will
be supplied under the Navajo Reservoir's 1955 priority, instead of a
reserved priority date of 1868. This concession means that 10 percent
of Navajo rights will have an 1868 priority and 90 percent will be
administered with a 1955 or later priority.
I have described two of the most important protections incorporated
into the settlement, regarding quantity and priority, but there are
several other protections conferred by the settlement I want to touch
on.
The settlement has valuable shortage sharing provisions that
protect other federal projects. As you know, the federal government has
invested a great deal of resources in the Animas-La Plata Project (ALP)
and the San Juan-Chama Project. These projects are vital to the State
of New Mexico, but they have relatively junior priority dates of 1956
and 1955, respectively. In addition to the general protections I have
already described, the Navajo Nation is agreeing to additional,
specific protections for these two important federal projects.
ALP's 1956 priority in New Mexico makes it vulnerable to priority
calls within the San Juan Basin. Most of the 13,520 acre-feet per year
of ALP water allocated for use in New Mexico will supply the future
needs of the three municipalities of Farmington, Bloomfield and Aztec.
In the event that curtailment of New Mexico's water uses is required by
the Upper Colorado River Basin Compact, the Navajos agree to provide
protection to New Mexico contractors up to their project contract
amount. Under this protection, the Navajos agree to forgo their uses in
order to make water available to ALP at the same percentage supply
available to the rural water supply project authorized by S. 1171.
Section 102 of S. 1171 would amend Public Law 87-483, which
authorized the San Juan-Chama Project, to clarify that the normal
annual diversion requirement for that project is 135,000 acre-feet for
purposes of allocating annual water supply shortages between Navajo
Reservoir contractors and the San Juan-Chama Project. That provision
minimizes the potential for shortages to the San Juan-Chama Project,
which on average diverts 105,000 acre-feet per year, or less, in dry
years when less water is available for project diversions. This means
that a large reduction in Navajo Reservoir's physical supply would have
to occur before the San Juan-Chama Project would begin sharing
administrative shortages.
In addition, in order to protect federal project contractors, the
state analyzed the risks associated with allowing additional water to
be contracted from Navajo Reservoir to supply the proposed regional
water project. The hydrologic determination recently signed by the
Secretary of Interior confirms that additional water is available for
the new contract uses without impairing existing uses. The additional
risk of shortage to contractors from either the San Juan Chama-Project
or Navajo Reservoir supply is minimal, and the State of New Mexico
believes that other settlement and legislative benefits provided
outweigh any additional risks of shortage.
Another category of protections I want to mention consists of
specific protections for non-Navajo water users who are not supplied by
federal projects. These users are direct flow irrigators,
municipalities and power plants. Many non-Indian and municipal state-
based rights were quantified in the 1948 Echo Ditch Decree, to which
the United States and the Navajo Nation were not parties. Under the
settlement, the Navajo Nation and the United States would agree not to
challenge the elements of Echo Ditch Decree rights except on the basis
of forfeiture, abandonment or illegal use occurring after entry of the
Decree. This means that the U.S. and the Navajo Nation would not go
behind this long-standing decree to challenge the water rights decreed
at that time or challenge the validity of the decree. Similarly, in
conjunction with the settlement, the Navajo Nation is agreeing to
recognize water rights of the City of Farmington quantified by the Echo
Ditch Decree.
An important protection for direct flow diverters is the Navajos'
agreement to call on an alternate water supply from Navajo Reservoir
before making a priority call against direct flow. Although, as I
mentioned above, the settlement provides that 90 percent of the
Navajos' rights would be supplied under Navajo Reservoir's 1955
priority, the Navajos' old direct flow irrigation projects Hogback and
Fruitland would retain an 1868 priority. In many years the demand of
those projects would cause junior diverters to be shut off absent the
additional protection secured by the settlement requiring the Navajos
to use their alternate water supply. Under the alternate water supply
provisions, the Navajo Nation agrees the Hogback and Fruitland projects
will refrain from priority calls against upstream junior appropriators
and instead will deliver up to 12,000 acre-feet in any year of NIIP
contract water in storage in Navajo Reservoir when the direct flow is
insufficient to meet water demands. If this amount is exhausted in any
year, priority calls may occur at that time in that year. Based on the
hydrologic record, this provision would mean that instead of priority
calls in one out of two years, Hogback and Fruitland would only be
entitled to make priority calls in one out of every twenty years, on
average.
The last category of protections I want to touch on includes
administrative provisions to help assure that the San Juan River Basin
is managed in an orderly fashion and within the supply available. Both
the legislation and settlement confirm the State of New Mexico's
authority to administer water. Under the settlement, the Navajo Nation
agrees that the State Engineer has authority to serve as water master
in the basin and to administer water rights in priority as necessary to
comply with interstate compact obligations and other applicable law. In
addition, the State Engineer will have authority to make determinations
of current beneficial uses for any changes in points of diversion and
for any changes in purposes or places of use of Navajo water rights off
of Navajo lands. The Navajo Nation also agrees to comply with state law
regarding marketing of water rights.
The Navajo Nation further agrees not to pump groundwater so as to
deplete the flow of the San Juan River by more than 2,000 acre-feet per
year, unless the State Engineer approves use of Navajo surface water to
offset depletions in excess of that amount. Any Navajo groundwater uses
beyond those quantified in the settlement agreement also would be
subject to non-impairment of existing water rights.
Outside the Navajo Reservation on lands allotted by the United
States, there are numerous individual Navajos who could assert federal
reserved claims in the pending San Juan River Adjudication. The Navajo
Nation is agreeing to use its water rights decreed under the settlement
to supply or offset any future uses that may be awarded in the
adjudication to individual Navajos allottees in the San Juan Basin.
I have already mentioned the settlement confirms over 150,000 acre-
feet per year of conservation of NIIP irrigation water. The settlement
and S. 1171 further promote conservation of water by authorizing
funding for rehabilitation and construction improvements to Navajo and
non-Indian irrigation systems diverting from the San Juan River.
The proposed settlement is detailed and comprehensive. Although it
is a creature of negotiation and compromise, I strongly believe that is
represents the best result attainable for all New Mexicans who rely on
the San Juan River.
As we move forward, the State of New Mexico looks forward to
working with other parties on proposed legislative language to assure
the protections intended by the settlement are realized.
the colorado river basin
New Mexico supports this legislation because it is good for New
Mexico, the Navajo Nation, and the Colorado River Basin states. S. 1171
and the Navajo settlement help protect and further the interests of New
Mexico with respect to the Colorado River Compact and the Upper
Colorado River Basin Compact and are consistent with the spirit of the
recent agreements among the basin states.
A basic tenet of the recent agreement reached among the seven
Colorado River Basin States is each state's right to develop its
Colorado River water entitlement. The settlement and the project's use
of a renewable surface water to meet domestic needs are consistent with
the States' Agreement Concerning Colorado River Management and
Operations and the States' joint comments to the Bureau of Reclamation
in connection with the Environmental Impact Statement for the
coordinated operations of Lakes Mead and Powell, which recognize that
potential drought in the future could raise uncertainties regarding
each state's water supply options. The Navajo Settlement resolves the
Navajo Nation's water rights claims within the San Juan Basin in New
Mexico while allowing New Mexico to develop water uses within its
apportionment under the Upper Colorado River Compact.
New Mexico appreciates the Department of Interior's role in
encouraging the recent agreement among the basin states and its recent
engagement on Indian water rights settlements in New Mexico. Resolution
of tribal water rights claims is important to states, tribes, and the
federal government, particularly when the claims are resolved within a
state's compact apportionment.
The Secretary of Interior's recent hydrologic determination was
developed by the Bureau of Reclamation in collaboration with engineers
and hydrologists from the Upper Division states and was concurred with
by the Upper Colorado River Commission (representing Colorado, Wyoming,
Utah and New Mexico) through a resolution dated June 9, 2006. The
Department of Interior consulted with all of the seven basin states,
including Arizona, California and Nevada, regarding the final
hydrologic determination. This hydrologic determination confirms that
water is available for the Navajo Settlement within New Mexico's
apportionment of water under the Upper Colorado River Basin Compact
without displacing any existing water uses within New Mexico.
S. 1171 authorizes the Secretary of Interior to sign the Settlement
Agreement and design and construct a project to bring a necessary, safe
and reliable water supply to many New Mexican families who currently
rely on hauling water or unsustainable, poor quality groundwater to
meet their domestic needs. The Upper Colorado River Commission has
already expressed support for the settlement project and this
legislation through resolutions dated June 19, 2003 and June 9, 2006.
New Mexico hopes that all Colorado River Basin states will support the
Navajo Settlement and S. 1171.
Because the Navajo Reservation extends beyond one state's
boundaries, the settlement's water supply project contemplates a
pipeline extension to the Navajo Nation's capital in Window Rock,
Arizona, on the border with New Mexico. New Mexico believes the
settlement agreement and S. 1171 preserve Arizona's right to negotiate
its own settlement with the Navajo Nation, and New Mexico encourages
Arizona and the Navajo Nation, as they continue to work toward a
resolution of their outstanding issues. Through consultation with
Arizona, New Mexico has been able to accommodate some of Arizona's
concerns, but many of Arizona's concerns go beyond the scope of our
settlement, raising complicated issues that can only be addressed
through agreement among all Colorado River basin states.
New Mexico is willing to continue conferring with any of the
Colorado River Basin states as necessary to explain the settlement
agreement or discuss concerns about the settlement. New Mexico
recognizes the complicated nature of the Law of the Colorado River and
has worked with other basin states on mutually acceptable legislative
provisions. The recent and on-going cooperation among the Colorado
River Basin states in connection with the coordinated operation of
Lakes Mead and Powell has given rise to a new spirit of open
communication and compromise that New Mexico hopes will continue for
years to come.
Mr. Chairman and committee members, the State of New Mexico asks
you to support S. 1171. The costs of the Northwestern New Mexico Rural
Water Supply Project and of the Navajo settlement are high. But the
costs of delay in not addressing the vital and human needs of the
communities of Northwestern New Mexico are much higher. This
legislation would settle protracted and divisive litigation that casts
a pall over the entire area, and in its place would provide certainty
of water supply and economic development. It would also provide
certainty regarding water rights for all water users of the San Juan
River. Finally, it would authorize a regional rural water supply system
that will afford the habitability and enjoyment of the land for
generations to come.
The Chairman. Thank you very much.
President Shirley, please go right ahead.
STATEMENT OF JOE SHIRLEY, JR., PRESIDENT, NAVAJO NATION, WINDOW
ROCK, AZ
Mr. Shirley. The Honorable Chairman, Senator Bingaman,
Ranking Member, the Honorable Senator Pete Domenici, the
Committee on Energy and Natural Resources, thank you for the
opportunity to testify concerning the Northwestern New Mexico
Rural Water Projects Act.
I would also like to thank both the State of New Mexico and
the Department of Interior for their efforts to facilitate a
settlement.
As an initial matter, I want to make one point very clear.
The Navajo Nation overwhelmingly supports the settlement of our
water rights claims on the San Juan River, the Navajo/Gallup
Water Supply Project, and the framework to provide sustainable
water to the Navajo Nation, the city of Gallup, and the
Jicarilla Apache Nation. In placing their marks on the Treaty
of 1868, our predecessors pledged to keep the peace with the
United States. In return, the United States promised to assist
the Navajo people in the creation of the permanent homeland. I
believe history will review this legislation as the most
significant act of Congress concerning the Navajo people since
the ratification of our Treaty, and a major step toward self-
sufficiency and independence.
As I speak to you now, many of the 80,000 Navajo men, women
and children who live within the Project Service Area are
hauling water in the backs of their pickup trucks for drinking,
cooking and washing. The centerpiece of S. 1171 will authorize
the construction of the Navajo-Gallup water supply projects,
which will supply water to thousands of Navajo people.
While the Project will not entirely eliminate water hauling
on the Navajo Nation, it is a giant step toward that goal, and
provides the foundation that is essential for economic
development.
Last month I spoke at an EIS hearing in support of the
Navajo-Gallup Water Supply Project. As I listened to the
stories of the Navajo people who have spent their scarce
economic resources hauling water for basic domestic use, it was
impossible not to be moved. One of those people, Frank Chee
Willeto, a Navajo Code Talker, and recipient of the
Congressional Silver Medal, is here with us today.
[Applause.]
The Chairman. Very good. We welcome you to this hearing,
thank you for coming.
Mr. Shirley. Recently, representatives from the
administration have witnessed firsthand, the hardships endured
by Navajo families who haul water from public watering points.
While I believe these officials were moved by what they saw
and heard, I understand that there are concerns that the
Project is too expensive.
While the anticipated $714 million cost is a significant
sum, the cost is that the project and the settlement must be
put into perspective. OMB's assertion that S. 1171 is too
expensive, may be based on an overly restrictive interpretation
of the criteria and procedures for participating in Indian
Water Rights Settlements. This view--as noted by Senators
Bingaman and Domenici--is inconsistent with three water rights
settlements signed into law by President Bush, and the Rural
Water Supply Act of 2005. Further, the ramifications of not
passing this legislation could force the Navajo Nation into
litigation to determine its water rights. Such litigation could
jeopardize the allocations made by interstate compacts
concerning the Colorado River Basin. Congress simply cannot
afford to let this settlement fail.
Currently, 40 percent of the families in the Navajo Nation
lack potable water in their homes. In the wake of Hurricane
Katrina, Congress rightly recognized the emergency conditions
faced by New Orleans residents, deprived of drinkable water,
and quickly authorized billions of dollars to restore the water
systems. The tragic circumstances experienced by these citizens
are faced by the Navajo people every day. But yet, OMB didn't
ask Congress to consider the limits of its liability, or its
Federal Trust responsibility, before spending money to fix the
problem.
Congress was right to act to help the Katrina victims. We
ask you to do the same with the Navajo people.
Finally, we understand that the State of Arizona has
concerns about both the settlement agreement and legislation,
and is advocating a comprehensive settlement to protect its
interests, including resolution of the litigation in Navajo
Nation versus the United States. We strongly disagree. The
settlement with New Mexico does not impair Arizona's ability to
reach a settlement with the Navajo Nation, concerning its Lower
Basin claims.
While the settlement of the business of delivery of water
to the Lower Basin in Window Rock, Arizona fund the project,
nothing diminishes the right of Arizona to negotiate all of the
terms for water delivery to Window Rock, as part of a separate
agreement with the Navajo Nation.
The Navajo Nation has attempted to quantify its Lower Basin
claims with Arizona in the Navajo Nation versus the United
States litigation. Settlement discussions with Arizona are
ongoing, and will continue, regardless of the outcome of this
settlement with New Mexico. However, resolution of Navajo
claims in Arizona will likely take several years. If such a
settlement can be reached without delay, or impairment of our
settlement with New Mexico, we would not object to including an
Arizona settlement in this bill. But to require an Arizona
settlement in order for New Mexico to move forward, the Navajo
Nation and the State of New Mexico will be punished for their
good faith efforts that resulted in this concrete settlement.
This settlement would keep the Navajo Nation rights within
New Mexico's compact apportionment. As such, this settlement
benefits all 7 Colorado River Basin States, and we should not
jeopardize this achievement, by trying to settle unrelated
issues with Arizona.
The Navajo Nation and its people have respected their
treaty obligations. In times of crisis, brave Navajo men and
women have rushed to their country's aid, and fought and died,
not only for the preservation of the American ideal, but also
to preserve our Navajo culture, and to secure a Navajo homeland
for our children. A homeland for the Navajo people is not
merely a piece of land between our four sacred mountains, but
is a place where our culture, our language, and our way of life
and our people can live and grow.
Without water, viable economic and social communities
wither and die. So, I ask you today to honor the Treaty of
1868, and to help bring water to the Great Navajo Nation.
Thank you very much.
[The prepared statement of Mr. Shirley follows:]
Prepared Statement of Joe Shirley, Jr., President, Navajo Nation,
Window Rock, Az
Thank you Chairman Bingaman, Ranking Member Domenici, and members
of the Committee on Energy and Natural Resources. My name is Joe
Shirley, Jr., and I am President of the Navajo Nation, a federally
recognized Indian nation with the largest reservation in the United
States. I appreciate this opportunity to share with you the Navajo
Nation's strong support for the Senate Bill 1171, the Northwest New
Mexico Rural Water Projects Act. I also wish to convey the gratitude of
the Navajo Nation to Senators Bingaman and Domenci for their commitment
to improving the lives of the Navajo People and for their leadership in
sponsoring this important legislation.
The Northwestern New Mexico Rural Water Projects Act serves two
important purposes. First, it would authorize the Secretary of the
Interior to execute, on behalf of the United States, the Settlement
Agreement to quantify the Navajo Nation's water rights in the San Juan
River Basin in New Mexico. The Settlement Agreement was overwhelmingly
approved by the Navajo Nation Council in December of 2004 and executed
with the State of New Mexico in April of 2005. It reflects almost a
decade of negotiations to carefully balance a variety of demands on a
limited resource. Second, the Act authorizes construction of much
needed water projects for the Navajo Nation. As such, this legislation
represents an important step forward in moving the Navajo Nation
towards self-sufficiency, and may represent the most significant act of
Congress concerning the Navajo people since the ratification of our
Treaty with the United States in 1868, 139 years ago this month.
As witnesses to this important event, I am here with Mr. George
Arthur, Chair of the Resources Committee of the Navajo Nation Council,
Mr. Lorenzo Bates, Chair of the Budget and Finance Committee of the
Navajo Nation Council, Ray Gilmore, Chair of the Navajo Nation Water
Rights Commission, and Katie Gilbert, Navajo Nation Water Rights
Commissioner. In addition, Navajo Code Talker Frank Chee Willeto from
the Pueblo Pintado Chapter and Gloria Skeet from the Bread Springs
Chapter have joined me as well. In the Treaty of 1868, the Navajo
leaders pledged their honor to keep peace with the United States and,
in return, the United States pledged to assist the Navajo People in
creating a permanent homeland on their reservation lands. No lands can
be a permanent homeland without an adequate supply of water, especially
potable water.
the settlement agreement
When New Mexico Governor Richardson and I signed the Settlement
Agreement in April 2005, the State of New Mexico and the Navajo Nation
set into motion the means to resolve a century-old controversy
concerning water rights in the San Juan River basin, which could have
persisted for decades to come through long, protracted litigation. The
State of New Mexico and the Navajo Nation spent years crafting a
settlement that would protect exiting uses from the San Juan River
while ensuring that the Navajo Nation would receive a firm supply of
drinking water to sustain the Navajo Reservation as a permanent
homeland for the Navajo People. Senate Bill 1171 authorizes the
Secretary of the Interior, on behalf of the United States, to join
Governor Richardson and me in a Settlement Agreement that quantifies
the Navajo Nation's water rights in the San Juan River Basin in New
Mexico in a manner that represents a win-win outcome for all parties,
including the Navajo Nation, the non-Navajo water users, the State of
New Mexico and the United States.
The San Juan River basin contains all the elements that have made
Western water issues so contentious over the years: a limited supply of
water, competition between Indian and non-Indian irrigators, the
presence of federally protected endangered fish species, and not one,
but four federal Reclamation projects. In other basins, that same
mixture of interests has lead to contentious litigation and even
violence. But in the San Juan River basin, the Navajo Nation has worked
in cooperation with its neighbors on issues such as native fish
recovery, shortage sharing during periods of drought, and water
development for municipal and power interests. The history of this
cooperation is reflected throughout the Settlement Agreement.
For example, the Settlement Agreement contains provisions to
protect the interests of the non-Navajo water users in the basin. The
Navajo farmlands at the Hogback and Fruitland irrigation projects,
downstream of the non-Indian water users on the river, possess the
senior priority on the river. Thus, during the dry summer months, when
there is insufficient water in the river to satisfy all water uses, the
Navajo Nation could exercise its senior priority to make a ``call'' on
the river and stop the upstream diversions. To minimize the likelihood
of calls on the upstream diversions, under the Settlement Agreement,
the Navajo Nation has committed to utilize a portion of its Navajo
Reservoir supply at the Hogback and Fruitland projects to ensure that
more ``run of the river'' water would be available for the non-Navajo
water users. Without the settlement, a call would be necessary during
the irrigation season almost every two years, but with the settlement,
the risk that a call will be made is less than one year out of twenty
(20).
The Settlement Agreement also includes specific provisions to firm
the water supply for existing federal Reclamation projects including
the Animas-La Plata Project and the San Juan-Chama Project. The Animas-
La Plata Project is an important project for the basin, and is a
necessary component of the settlement approved by Congress for the
Colorado Ute Tribes. The San Juan-Chama Project provides drinking water
for the cities of Albuquerque and Santa Fe. This transbasin diversion
also helps New Mexico meet its compact obligations to the State of
Texas and provides a supply of water that can be used for two separate
water rights settlements involving the Pueblo of Taos and four northern
Pueblos in the Aamodt litigation.
In terms of protecting federal interests in New Mexico, including
the San Juan-Chama Project, the importance of the Settlement Agreement
to the United States cannot be overstated.
the navajo-gallup water supply project
The centerpiece of the Bill, however, is the authorization for
construction of the Northwest New Mexico Rural Water Project, commonly
known as the Navajo-Gallup Water Supply Project. This project will
provide a firm, sustainable supply of municipal water for the Navajo
Reservation, the City of Gallup and the Jicarilla Apache Nation. Many
of the 80,000 Navajo men, women, and children who live within the
project service area, including Navajo Code Talker Frank Chee Willeto,
presently haul water for drinking and cooking. Although construction of
the project will not necessarily eliminate all water hauling on the
reservation, this project will allow the Indian Health Service to
expand distribution systems to provide potable water delivery to more
homes, and creates growth corridors within the Navajo Nation where
future communities can be built with ready access to roads, electricity
and potable water. As such, this project represents a critical
component of the Navajo Nation's economic development strategy. While
construction of the pipeline may not represent a condition sufficient
to ensure economic prosperity for the Navajo People, surely such
prosperity will never be possible in the absence of a sustainable
potable water supply.
In March of this year, the Department of the Interior released the
Planning Report and Draft Environmental Impact Statement for this
project. I thank Secretary Kempthorne and his Counselor Michael Bogert
for their leadership in releasing this critical document, in addition
to the release of the hydrologic determination that there is sufficient
water for the project.
Earlier this month, I spoke at the public hearing in Farmington,
New Mexico, concerning the project in order to deliver the message that
the Navajo Nation strongly supports the construction of the Navajo
Gallup Water Supply Project. At the hearing, I was moved by the
testimony of the Navajo people, most of them water haulers. I believe
that the federal officials at the hearings were also moved by their
testimonies. Mr. Frank Chee Willeto, a Navajo veteran and former Navajo
Code Talker, who recently received the Congressional Silver Medal,
eloquently testified that he and other veterans, despite financial
assistance from the Veterans' Administration and the Navajo Nation,
were unable to secure a loan for his home due to the absence of water
in his community for fire protection. Ms. Gloria Skeet spoke eloquently
about how Bread Springs Chapter, south of Gallup, needs the project
because her community currently faces water shortages. Ms. Skeet, a
former educator, sees that the construction of the project will allow
our children to build productive and meaningful lives at home. I also
viewed drawings by Navajo school children from Lake Valley Chapter
depicting trucks hauling drinking water to their homes. These drawings
will be submitted to the Committee in our supplemental statement.*
Based on these testimonies, I reiterate my message that the Navajo
Nation strongly supports the construction of the Navajo-Gallup Water
Supply Project.
---------------------------------------------------------------------------
* Documents have been retained in committee files.
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omb concerns about costs
We recently invited representatives from the Administration,
including the Department of the Interior and the Office of Management
and Budget, to witness first-hand the hardships endured by Navajo
families who must drive considerable distance to haul water from public
watering points. They heard and saw everything I have just described to
you. They also heard about the negative health effects that occur when
they do not have access to potable water, including the story of Lucy
Cayetano who suffers from various illnesses because she does not have
easy access to potable water. Studies have shown empirically that the
lack of potable water is a critical health issue for the Navajo people,
but I also wonder what the psychological effects will be for our
children who believe that water comes from trucks, rather than from
drinking fountains or faucets.
We believe the Administration representatives received a realistic,
first-hand understanding of the enormity of the problem the lack of
water brings. However, we also understand that the Office of Management
and Budget believes the Navajo-Gallup Water Supply Project to be ``too
expensive.'' Their belief is apparently based on the Planning Report
for the project, in which the Bureau of Reclamation estimates that this
project could cost as much as $714 million or more. While this is
unquestionably a huge amount of money, the anticipated cost of the
project and the other components of the Navajo Nation's water rights
settlement must be put into perspective.
As stated earlier, the Navajo Reservation is the largest Indian
Reservation with the largest population of on-reservation members of
any Indian tribe in the United States. Providing potable water for such
a large reservation is indeed a costly venture, but studies conducted
by the Bureau of Reclamation demonstrate that this project fares
favorably when compared with other recently authorized water pipelines
on a per acre-foot and per capita basis. This information will be
provided to the Committee in our supplemental statement.
We understand that OMB seeks to impose on this settlement an overly
restrictive interpretation of the Administration's criteria and
procedures for participating in this settlement. In particular, OMB
apparently seeks to limit the federal contribution for this water
rights settlement to their assessment of the monetary liability of the
United States if it is sued by the Navajo Nation. Such a policy is a
radical departure from previous Administrations, and is not even
consistent with the position taken by the Administration in the three
settlements recently signed into law by President Bush--the Arizona
Water Rights Settlement Act, the Snake River Water Rights Settlement
and the Zuni Tribe Water Rights Settlement. This inconsistency was
described in a recent joint letter to OMB from Chairman Bingaman and
Senator Domenici. Once again, I thank the Senators for their dedication
to this settlement by having pointed out to OMB these inconsistencies.
Moreover, OMB's interpretation flies in the face of the
Administration's past support for the Rural Water Supply Act of 2005 in
which the federal government would assume up to 75% of the cost of
rural water projects. The federal contribution for such projects is not
limited by any calculus of liability to the project participants. OMB's
policy is especially appalling considering the trust responsibility and
treaty obligations owed by the United States to the Navajo Nation. The
United States Supreme Court has characterized these responsibilities as
``moral obligations of the highest responsibility and trust.'' Simply
put, the federal government should not be allowed to shirk its trust
responsibility or its treaty commitments with Indian nations by hiding
behind a veil constructed of legalese that can be applied to the
detriment of the poorest of the poor in America.
Of particular concern to the Navajo Nation is that OMB is now
objecting to the construction of infrastructure projects as a mechanism
for settling Indian water rights, even though the Administration
apparently supports the concept of encouraging Indian water rights
settlements. In the desert Southwest, where the available water
resources are largely exhausted, the only way for settlements to work
is by infusing the limited natural resource pool with the financial
resources to allow the existing water supplies be used more
advantageously. As a general premise, these settlements do not
reallocate water from existing non-Indian water users for the benefit
of an Indian tribe. In the San Juan River basin, there is very little
unused water for the purpose of settling the Navajo claims. Under the
terms of the Settlement Agreement, the Navajo Nation is awarded only
the water it has historically used, the water set aside for the
Nation's use at the Navajo Indian Irrigation Project, and the water for
the Navajo-Gallup Water Supply Project. The Settlement Agreement is
premised on the Navajo Nation receiving a substantial amount of ``wet
water'' development to forgo claims for additional water. In short,
without the federal government contributing the monetary resources to
make this settlement work, the settlement would not be possible.
Although we do not believe OMB should apply the criteria and
procedures for participating in settlements in such a restrictive way,
we are confident that if OMB considers all of the ramifications of
letting this settlement fail, the ultimate costs to the federal
government could be staggering. Consider first, the claims of the
Navajo Nation. The Navajo Nation's water rights claims are based on
legal precedent established by the United States Supreme Court. The
Navajo Nation's water rights claims could exceed the amount of water
apportioned to New Mexico by the Upper Colorado River Basin Compact,
which was ratified by Congress in 1949. These claims have been
described by various legal scholars as ``hypothetical shocks to the
Colorado River system.'' If this is true, there are only two outcomes,
neither of which are favorable to the United States. If the courts
ultimately rule that the Navajo claims are limited by the compact
because of the ratification by the United States, the Navajo Nation has
a substantial claim against the United States for the lost water
rights. On the other hand, if the courts ultimately rule that the
Navajo Nation is entitled to water in excess of New Mexico's
apportionment, then the entire system of allocation of Colorado River
water would be in jeopardy exposing the United States to incalculable
liability to a multitude of water users in the seven Colorado River
states. The beauty of the Settlement Agreement is that by keeping the
Navajo Nation's water rights within the State of New Mexico's compact
allocation, the ``hypothetical shocks to the Colorado River system''
are avoided. But without the substantial water development
infrastructure authorized by Senate Bill 1171, such a settlement is not
possible.
If the settlement were to fail, and the Navajo Nation were forced
to pursue the litigation of its claims, the United States would still
be exposed to horrific liabilities even if the Navajo Nation were to
obtain only modest water rights. The federal government historically
promoted the utilization of waters from the San Juan River by non-
Navajos through such projects as the San Juan-Chama diversion, the
Hammond Irrigation Project, the Jicarilla Apache Water Rights
Settlement, and the Animas-La Plata Project. However, because the
Navajo Nation is the senior water user in the basin, an award of even a
modest amount of water to the Navajo Nation would disrupt the water
supplies for each of these federal interests and leave the United
States exposed to considerable liability. As I mentioned earlier, the
San Juan-Chama Project serves a myriad of federal interests in addition
to providing a water supply to the cities of Albuquerque and Santa Fe.
While OMB may frame the issue in terms of whether we can afford this
settlement, we believe the issue is whether we can afford not to have
the settlement. Under any measure, the Congress simply cannot afford to
let this settlement fail.
Currently, forty percent (40%) of the families on the Navajo
Reservation are forced to transport water from regional water pumping
stations to their homes to ensure that their families have potable
water. In the wake of Hurricane Katrina, Congress rightly recognized
the emergency that existed when so many people were deprived of potable
water and infrastructure. Congress moved to fix this emergency through
the authorization of billions of dollars to restore the water
infrastructure in New Orleans and various coastal communities. The
tragic circumstance experienced by the residents of New Orleans
deserved swift and decisive action on the part of the federal
government. Unfortunately, on the Navajo Nation, the lack of potable
water and infrastructure is a condition that has existed for a long
time. It appears that OMB is again applying a double standard when it
comes to funding water infrastructure to remedy acute water supply
problems. OMB did not ask Congress to consider the limits of its
liability to victims of Katrina or to consider whether a federal trust
responsibility required such action in order to avoid spending the
money necessary to fix the problem. In the case of Katrina, Congress
did the right thing. We ask Congress to do the right thing again by
enacting Senate Bill 1171.
arizona concerns
Finally, we know that the State of Arizona has concerns about the
language in S. 1171 that deals with delivery of water to Window Rock,
Arizona. The Settlement Agreement and the provisions of S. 1171
preserve all rights for the State of Arizona to negotiate all of the
terms and conditions for water delivery to Window Rock as part of a
separate agreement with the Navajo Nation. We do not believe, as
Arizona does, that a ``comprehensive'' settlement of all of the Navajo
Nation's water rights claims is necessary to protect Arizona's
interests. In the first instance, a ``comprehensive'' settlement should
include all of the Navajo Nation's interests in Utah as well as the
Upper and Lower Colorado River Basins in Arizona. The Navajo Nation has
been actively attempting to quantify its Lower Basin claims through
negotiations with Arizona water interests, but no negotiations
concerning Upper Basin claims have been attempted. We have advised the
Arizona water interests that we are willing to pursue a negotiated
settlement of the Lower Basin claims, but we are not willing to
jeopardize the authorization of our settlement with the State of New
Mexico to accommodate the Arizona interests. Moreover, we have serious
doubts whether a settlement of the Arizona claims can be achieved. It
appears that after passage of the Arizona Water Settlements Act, there
is very little Colorado River water remaining for purposes of a
settlement with the Navajo Nation. Nevertheless, we are committed to
continued dialogue with the Arizona interests to determine if a
settlement is possible and to resolve any remaining issues they may
have concerning the settlement with the State of New Mexico.
conclusion
For more than one hundred and thirty nine years, the Navajo Nation
and the Navajo People have taken their treaty obligations seriously. In
times of crisis, brave Navajo men and women have rushed to the
country's aide, and fought and died not only for the preservation of
the American ideal, but also to preserve the Navajo culture and to
secure a Navajo homeland. A homeland for the Navajo People is not
merely a piece of land between our four sacred mountains but a place
where our culture, our language, our people can grow and live. Without
water, viable economic and social communities wither and die. I am
asking you today to honor the Treaty of 1868 and help bring water to
the Navajo Nation.
The Chairman. Thank you very much.
Mr. Guenther, go right ahead.
STATEMENT OF HERBERT R. GUENTHER, DIRECTOR, ARIZONA DEPARTMENT
OF WATER RESOURCES, PHOENIX, AZ
Mr. Guenther. Thank you. Mr. Chairman, Ranking Member
Domenici, thank you for the opportunity to present the views of
the State of Arizona on S. 1171.
This bill represents another important step toward the
settlement of longstanding water rights claims of American
Indian Tribes. The Navajo Nation lies within the boundaries of
three States--Arizona, New Mexico, and Utah. The Navajo Nation
is the largest tribe in Arizona, both in terms of population
and land area.
Senate bill 1171 contains provisions that will greatly aid
that portion of the Navajo Nation in New Mexico, and
potentially within a portion of Arizona, as well.
Arizona is supportive of the efforts of New Mexico and the
Navajo Nation in completing a water rights settlement
agreement. We are supportive of the creation of the much-needed
funding mechanism, to ensure that the associated water
development projects are constructed in a timely manner. We are
supportive of your creative efforts to include non-Indian
beneficiaries, who will receive water from these proposed
projects.
But Arizona does have several concerns about S. 1171 as it
was introduced. Arizona believes that the bill is in conflict
with provisions of the Law of the River, including the 1922
Colorado River Compact. We believe the bill should contain an
explicit exception to the provisions of the compact reserving
the right to use Upper Basin water exclusively in the Upper
Basin, to allow the diversion and use of that Upper Basin Water
in Gallup, New Mexico, located in the Lower Basin.
Arizona would like to build to make a clear that the water
from Window Rock, Arizona, should come from the CAP water that
was set aside in the Arizona Water Settlements Act of 2004.
Senate bill 1171 also needs to include specific provisions
for accounting for that water at Lee Ferry, and authorizing the
Secretary of the Interior to contract for the water at delivery
point in the Upper Basin, which authority is currently lacking.
Arizona and Arizona water users would like to see the bill
amended to include additional titles which would settle water
rights claims on the lower main and Colorado River, and the
Little Colorado River in Arizona. We currently have ongoing
negotiations and we are optimistic that the parties may reach
consensus in a timely manner.
We are also concerned about the Navajo Nation's lawsuit. As
President Shirley mentioned a short while ago, that is against
the Secretary of the Interior challenging operational programs
of the Colorado River. That lawsuit is currently stayed pending
settlement negotiations, but casts a serious cloud over the
programs to conserve and deliver water to all of the basin
States. We believe that resolution and dismissal of that
lawsuit should be a prerequisite to final action on Senate bill
1171.
In 2004, Congress passed the Arizona Water Settlements Act,
we would like the assistance of the Navajo Nation to bring that
Act to a full enforceability stage. If we do not reach full
enforceability for that Act, the benefits of that Act will
become null and void, and that would include the potential
supply for Window Rock, as well as the benefits accruing to
Gila River water users in New Mexico.
Again, Arizona remains willing to meet with the committee's
staff, and the representatives of the other six Basin States,
if necessary, to further discuss the suggested changes, and
obviously we stand ready to meet with the Navajo Nation, as
well. We would like to make sure that any proposed amendments
are acceptable to all affected parties, and consistent with the
Law of the River. We were successful in negotiating with you
and your staff on the Arizona Water Settlements Act to satisfy
your concerns before that Act was passed, and we think we can
do the same here, without a delay of the process.
Mr. Chairman and Senator Domenici, I stand ready to answer
questions at the appropriate time. Thank you.
[The prepared statement of Mr. Guenther follows:]
Prepared Statement of Herbert R. Guenther, Director, Arizona Department
of Water Resources, Phoenix, Az
Mr. Chairman and Members of the Committee, good afternoon and thank
you for the opportunity to present the views of the State of Arizona on
S. 1171, the Northwestern New Mexico Rural Water Projects Act of 2007.
S. 1171 represents another important step toward the settlement of
long standing water rights claims held by the United States government
on behalf of American Indian Tribes. The Navajo Nation is the largest
Tribe in Arizona measured both in terms of population and land area.
The Navajo Reservation lies within the boundaries of three states:
Arizona, New Mexico and Utah. It also lies within one of the most arid
regions of the United States and the lack of water development and
infrastructure has created a great hardship on the Navajo Nation's
residents, both in terms of economic opportunity and general lifestyle.
The geography of the Reservation is also complicated in a hydrologic
sense because it encompasses land which is located in both the Upper
and Lower Colorado River Basins.
S. 1171 contains provisions that will greatly aid the portion of
the Navajo Reservation within New Mexico and, potentially, within a
portion of Arizona. Arizona is supportive of the efforts of the State
of New Mexico and the Navajo Nation in completing a water rights
settlement agreement. We are supportive of the provisions of S. 1171
that create a funding mechanism to ensure that necessary water
development projects will be constructed in a timely manner. We are
supportive of the creative efforts of the New Mexico congressional
delegation to ensure that there will also be non-Indian beneficiaries
who will receive water from the rural water projects, and we are
generally supportive of the opportunity for the State of New Mexico to
make full use of its Upper Colorado River Compact entitlement. The
Committee should remember that the San Juan River is part of the
Colorado River system as defined in the 1922 Colorado River Compact
(1922 Compact) approved by all seven Colorado River Basin States. In
this regard programs and settlements in the San Juan Basin affect the
Colorado River as a whole, and vice versa.
While generally supportive of this settlement, we cannot support S.
1171 as it has been introduced because we have several concerns about
the implications of certain provisions to the existing ``Law of the
Colorado River,'' and about the provisions that relate to uses of water
from the Northwest New Mexico Rural Water Supply Project (Navajo-Gallup
Pipeline Project) within Arizona and in portions of New Mexico located
in the Lower Colorado River Basin. Specifically, as introduced, S. 1171
would violate provisions of the 1922 Compact related to the use of
Colorado River water allocated ``exclusively'' to the Upper Basin to be
used in the Lower Basin. The bill does not make provisions for the
proper accounting of water deliveries under the Compact at Lee Ferry.
S. 1171 does not specify how the accounting and delivery of water for
tribal use in Window Rock, Arizona would be handled. S. 1171 would also
set a precedent in that it would subordinate Arizona's share of water
in the Lower Basin of the Colorado River to allow new uses in the Lower
Basin.
Arizona and Arizona water users believe there is an opportunity to
provide even more certainty for the Navajo Nation and the Hopi Tribe by
including additional Titles which will settle water rights claims
within the Lower Mainstem Colorado River and Little Colorado River
basins within Arizona. The two Tribes are actively participating in
ongoing negotiations with governmental and non-governmental interests
in those basins. We are optimistic that the parties will complete a
water rights settlement agreement in a timely manner so that S. 1171
can be amended to become a more comprehensive solution. Therefore, we
believe Congress should not take final action on S. 1171 until we have
a chance to see if Arizona tribal and non-Indian parties can achieve
this Arizona settlement goal.
Additionally, an impetus for Arizona (as well as governmental and
non-governmental entities in California and Nevada) to negotiate with
the Navajo Nation is a direct response to the Navajo Nation lawsuit
against the Secretary of the Interior about operation of programs on
the Colorado River, including interim surplus guidelines, interstate
water banking, overrun and payback provisions, certain Colorado River
allocations, and protections of Lakes Mead and Powell. This 2003 U.S.
District Court lawsuit has been stayed pending negotiations among the
parties over Navajo Nation Colorado River claims. The lawsuit is a
cloud over the programs to conserve and deliver Colorado River water to
all the Basin States; threatening operations that benefit all seven
Basin States. It is a logical conclusion that the recent historic
agreement of the Seven Basin States of the Colorado River on shortage
guidelines and the coordinated operations of Lakes Mead and Powell
would also be challenged. Failure of that new agreement could mean
years of dispute among the States. Of course a successful Arizona water
rights settlement would remove this cloud. Therefore, we believe that
Congress should not take final action on S. 1171 without a resolution
and dismissal of the Navajo Nation lawsuit concerning the Colorado
River.
Title II of S. 1171 creates the Reclamation Water Settlements Fund.
This Fund will be used to construct project features that are required
to implement a congressionally authorized settlement agreement. The
State of Arizona is supportive of the concept for funding that is
described in Title II. However, we believe that the funding need is
worthy of even greater consideration. Indian water rights settlements
are being actively negotiated throughout the United States. Funding of
these settlement agreements is the single greatest impediment to their
successful completion. We believe it is time for Congress to address
the funding issue on a more comprehensive basis.
Many of the water rights being contested throughout the West are
rights that were ``reserved'' by the United States at the time of the
creation of the Indian reservations. In many instances, the United
States has failed to fulfill its intent in reserving that water for the
Reservations and has left the Tribes without the means to create a true
tribal homeland. In Arizona and other Western states, many of the
Tribes have recognized that they will have a better chance to obtain
the necessary funding which will lead to on-Reservation development by
entering into a water rights settlement rather than pursuing their
claimed rights through lengthy and expensive litigation. In most
instances the Tribes have settled for less water than they had claimed
in Court, but they were provided with the funding mechanism to actually
put that water to near-term beneficial use. This trade-off is essential
for a Tribe to make such a major concession regarding their valuable
water rights claims.
Having a dedicated water rights settlement fund with a dedicated
funding source will allow not only the Northwest New Mexico Rural Water
Supply Project to be built but also many other worthy projects in other
states. The Committee should look at expanding Title II so that the
Reclamation Water Settlements Fund can have even greater potential for
dedicated revenues. The time frame for those deposits should be at
least fifty years. Withdrawals from the Settlements Fund for projects
other than the Northwest New Mexico Rural Water Supply Project will
still be subject to the conditions placed upon them by Congress when
future settlements and projects are authorized. We urge the Committee
to explore opportunities to build on the Settlement Fund concept by
contacting the Western Governor's Association and the Western States
Water Council. At a minimum, S. 1171 should contain provisions for the
funding of a Navajo Nation/Hopi Tribe settlement in the Lower Basin of
the Colorado River if a settlement is authorized by Congress. It would
greatly benefit the Navajo Nation and Hopi Tribe in their water
development plans.
In addition to the need to first resolve the Navajo lawsuit and
water rights claims in Arizona, Arizona is concerned that S. 1171, as
currently drafted, conflicts with the Law of the River. S. 1171
contains several provisions related to deliveries of water through the
Northwest New Mexico Rural Water Supply Project to locations in the
Lower Colorado River Basin, including the Window Rock area of the
Navajo Reservation within Arizona. In an attempt to be non-committal
about the source of water to be used for the Arizona component, the
bill's drafters have created confusing and potentially troubling
language. The problem arises because Window Rock, Arizona and Gallup,
New Mexico are located in the Lower Basin of the Colorado River as
defined in the 1922 Compact, but the point of diversion of the water
from the San Juan River is in the Upper Basin portion of the Colorado
River. Arizona believes that the terms of the Colorado River Compact
prohibit the use of an Upper Basin water allocation in the Lower Basin,
and vice versa. However, the State of Arizona can accept an explicit
exception to this prohibition as long as it is clear that the use of
water across the basin boundary is for a specific project and that the
project is within the same state that holds the allocation. Arizona
does not believe that the language of paragraph 303(g), which describes
consistency with the Upper Colorado River Basin Compact adequately
addresses the issue or meets the requirements of the Colorado River
Compact. We believe that an explicit congressional exception to the
provisions of the 1922 Colorado River Compact is required.
The Arizona Water Settlements Act (AWSA) of 2004 (P.L. 108-451)
contains a provision reserving for allocation 6,411 acre-feet per year
of Central Arizona Project (CAP) water supply for use in the Window
Rock area of the Navajo Nation pursuant to a future congressionally
authorized settlement. This provision was agreed to by Arizona at the
insistence of New Mexico. The terms and conditions for making this
allocation are enumerated in Sec. 104(a)(1)(B)(ii) of the AWSA. This is
the only water supply source that Arizona will agree may be utilized
for delivery through the Northwest New Mexico Rural Water Supply
Project to the Window Rock area. The CAP water is a Lower Basin
Colorado River entitlement and the water will be used in the Lower
Basin. We believe this comports with the provisions of the Colorado
River Compact.
However, Arizona is concerned that this source of water for Window
Rock may be at risk. As the Committee may know, the Navajo Nation
opposed the AWSA, and they continue to oppose approval of the Gila
River Indian Community Settlement which is a requirement for bringing
the AWSA to a full enforceability stage. If AWSA does not become fully
enforceable all the benefits of the AWSA will become null and void,
including the source of water for Window Rock, and those benefits
accruing to Gila River water users in New Mexico. Therefore, we believe
Congress should not take final action on S. 1171 without the withdrawal
of the Navajo Nation's opposition to the implementation of the
provisions of the AWSA.
Assuming the CAP water source does prove to be available for Window
Rock, the diversion of water from an Upper Basin location for use in
the Lower Basin is unprecedented. Therefore, S. 1171 needs to include
specific provisions authorizing and clarifying accounting methods and
providing the Secretary of the Interior the authority to contract for
delivery of CAP water from a new diversion point in the Upper Basin.
Under current law, the Secretary has no authority to contract for
delivery of Lower Basin Colorado River water at points of diversion
above Lake Mead. Attached to this testimony, as part of a letter from
myself to the New Mexico State Engineer, are proposed amendments which
will correct this and other ``Law of the Colorado River'' problems
Arizona finds with the bill as introduced.
In 1968, Arizona's rights to develop in the Lower Colorado River
Basin were subordinated to pre-1968 rights in the Lower Basin States.
S. 1171 sets a precedent that New Mexico and Utah can increase
development in the Lower Basin and further jeopardize Arizona rights.
While Arizona does not challenge the right of any Upper Basin state to
develop their apportioned Upper Basin water for use in the Upper Basin,
we do want to be treated equitably for use of Upper Basin water in
Lower Basin development. S. 1171 does not address this concern and it
sets a precedent that is inequitable to the State of Arizona.
Specifically, the bill, subordinates Arizona's Central Arizona Project
(CAP) water to new Lower Basin uses developed with an Upper Basin water
allocation. This also subordinates the rights of Arizona Indian Tribes
that utilize CAP allocations.
Staff from the Arizona Department of Water Resources has had an
ongoing dialogue with the New Mexico State Engineer's staff for over a
year on these issues, including those outlined in this testimony. I
sent a letter to the Mr. D'Antonio several months ago about these
issues. Mr. D'Antonio recently responded concerning Arizona's suggested
bill changes. We have attached copies of both of these letters for the
record. We do not agree with Mr. D'Antonio's response but we continue
to be open to discussions with our friends in New Mexico to resolve
these important Law of the River issues.
The Law of the River has been under attack for decades. For
example, in the early 1980s, a private group made what is known as the
Galloway Proposal. It would have allowed the transfer of Upper Basin
water rights to a California entity without regard to the prohibitions
of the 1922 Compact. The Seven Basin States were united in fighting the
proposal and rejecting this notion that the 1922 Compact was
irrelevant. It now appears that New Mexico is not as concerned about
the precedent that would be set if Congress does not address each 1922
Compact issue explicitly. Arizona remains very concerned and will
utilize all means available and necessary to protect its rights under
the Compact and the Law of the River.
Again, Arizona is willing to meet with Committee staff and the
representatives of the other six Colorado River Basin States to further
discuss our suggested changes, and to try to make sure that any
proposed amendments are acceptable to all affected parties and
consistent with the Law of the River.
In summary, the State of Arizona is supportive of the purposes of
S. 1171 in settling tribal claims and will work collaboratively with
the bill's sponsors and New Mexico's interested parties. We believe
that the bill should be expanded to include additional water rights
settlements in Arizona that are actively being negotiated with the
Navajo Nation and the Hopi Tribe. We urge the Committee to explore
opportunities to expand upon the concepts contained in Title II dealing
with the Reclamation Water Settlements Fund so that it can become the
mechanism for not only the proposed New Mexico Navajo settlement, but
potentially many other western tribal settlements as well. Before final
enactment of S. 1171, the Navajo Nation's challenge to the operation of
the Colorado River must be resolved, and the Navajo Nation's opposition
to the AWSA withdrawn. Finally, we cannot support the bill as currently
drafted as it relates to the source of the water supply for the Window
Rock area within Arizona, and certain provisions dealing with the Law
of the River. Ambiguity about the water source and the Law of the River
implications related to both Window Rock water delivery and Gallup
water delivery must be clarified.
Thank you for the opportunity to present the views of the State of
Arizona.
Attachments
Arizona Department of Water Resources
Phoenix, AZ, April 5, 2007.
Mr. John D'Antonio, P.E.,
Office of the State Engineer, 130 South Capitol Street, Concha Ortiz y
Pino Building, P.O. Box 25102, Santa Fe, NM.
Dear Mr. D'Antonio: Last January my staff met with your staff
concerning the proposed ``Northwestern New Mexico Rural Water Projects
Act'' (Act) introduced by the New Mexico delegation late last session
as S. 4108. One title of the Act would confirm the water settlement for
the Navajo Nation claims to water in the San Juan River basin.
We have examined the proposed Act and have reviewed the San Juan
settlement agreement. There are provisions in the settlement agreement
and Act that are in conflict with the 1922 Colorado River Compact, the
Decree in Arizona v. California, the Colorado River Basin Project Act,
and the Arizona Water Settlements Act. Specific comments on some of the
issues are enclosed for your review. There are additional provisions,
such as the ``top water bank'' that are confusing, and we question
whether those provisions are in conformity with the Compact and the
``Law of the River''.
The Compact and Decree issues may only be resolved with the
concurrence of Arizona and the other Lower Division States.
Additionally, the most likely source of water for the Arizona portion
of the San Juan settlement is specifically reserved in section 104 of
Public Law 108-451 under certain conditions. Some issues associated
with this transfer of water are similar to Compact and Decree issues on
use of water in New Mexico.
We are currently consulting with water users in Arizona and may
have other issues concerning the proposed settlement legislation. We
would like to the opportunity to work with you and representatives of
the Navajo Nation to address the concerns of Arizona. Should you have
any questions please feel free to contact me, Tom Carr or Gregg Houtz.
Herbert R. Guenther,
Director.
comments on draft navajo-gallup pipeline bill
General Comments
The bill is premised on a draft EIS and draft hydrologic
determination, neither of which has yet been accepted by the
Secretary of the Interior. This is not a good precedent,
particularly when the Lower Basin States have expressed concern
about the draft hydrologic determination.
The bill leaves many unanswered questions about Colorado
River accounting, water delivery contracting and priority of
deliveries. The specific comments below attempt to clarify many
of these issues.
Specific Comments
1. Priority within the San Juan River system.--The priority of the
Navajo-Gallup pipeline water within the San Juan River system is not
clear. Section 102(b) of the bill provides that the Secretary shall
``allocate the shortage'' to the Navajo Reservoir water supply, with
first priority going to the water for the Navajo-Gallup pipeline. This
seems to say that the water for the pipeline is the first to be
shorted. But this section of the bill is amending Sec. 11 of Pub. L.
87-483, which directs the Secretary to apportion the water that is
available during shortage on the San Juan, suggesting that the pipeline
might be first to receive available water during a shortage. The bill
should be revised to clearly express the intended result.
2. Colorado River Compact Issues.--Section 103 of the bill states
that it does not amend the Law of the River ``unless expressly provided
in this Act.'' There is nothing in the bill that would expressly amend
the 1922 Colorado River Compact. Accordingly, there is nothing in the
bill that would:
Allow the diversion of water in the Upper Basin for use in
the Lower Basin.
Relieve the Upper Basin from any part of its Compact
obligation to deliver 75 million acre-feet to the Lower Basin
every 10 years.
To address these problems, the following should be added to the end
of Sec. 303 of the bill:
(h) COLORADO RIVER COMPACT.--Notwithstanding any other
provision of law, water may be diverted from the San Juan River
in New Mexico for use within the Lower Basin, as that term is
used in the 1922 Colorado River Compact, either in New Mexico
or on the Navajo Reservation in Arizona. Water diverted from
the San Juan River and delivered for use on the Navajo
Reservation in Arizona shall be deemed to have been delivered
to the Lower Basin at Lee Ferry for purposes of Article III(d)
of the Colorado River Compact.
3. Colorado River System Priority.--Section 303 of the bill should
also include the following provision:
(i) PRIORITY.--Colorado River system water diverted in the
Upper Basin for use in the Lower Basin, as those terms are used
in the Colorado River Compact, shall have the same priority of
delivery in time of shortage as the Central Arizona Project.
4. Allocation to Navajo Nation Communities in Arizona.--Section
303(b)(2)(D) of the bill should expressly state that the 6,411 acre-
feet of water allocated for use in Arizona is the water identified in
Sec. 104(a)(1)(B)(ii) of the Arizona Water Settlements Act (AWSA), Pub.
L. 108-451--i.e., CAP non-Indian agricultural (NIA) priority water--and
is subject to the provisions of the AWSA, including but not limited to
Sec. 104(a)(1)(B)(ii), Sec. 104(a)(1)(B)(iii), Sec. 104(a)(3), and
Sec. 104(e).
5. Conditions for Use in Arizona.
a. Section 303(d)(1)(C) of the bill requires the Secretary to
determine that the Navajo uses within Arizona are within
Arizona's Colorado River apportionment. The bill does not
specify whether the water must be within Arizona's 50,000 of
Upper Basin entitlement (which was not the intent) or its 2.8
maf Lower Basin entitlement. This section should be deleted.
b. In addition to any capital or OM&R costs associated with
the use of the Navajo-Gallup pipeline, the United States or the
Nation must pay CAP fixed OM&R costs for any water delivered to
the Navajo Reservation for use in Arizona. The United States
can pay those costs from the Lower Colorado River Basin
Development Fund in accordance with 43 U.S.C. Sec. 1543(f), as
amended by the AWSA.
c. Section 303(d)(1)(A) of the bill requires the Secretary to
``determine by hydrologic investigation that sufficient water
is reasonably likely to be available to supply uses from water
of the Colorado River system allocated to the State of
Arizona.'' Its not clear what this means. This provision should
be deleted.
d. Section 303(d)(2) of the bill provides that water used by
the Navajo Nation in Arizona counts against Arizona's Colorado
River entitlement. Again, the bill should clarify that this
water counts against Arizona's Lower Basin entitlement.
e. In summary, section 303(d) of the bill should be revised
to read as follows:
(d) CONDITIONS FOR USE IN ARIZONA.--
(1) REQUIREMENTS.--Project water shall not be
delivered for use by any community of the Nation in the
State of Arizona under subsection (b)(2)(D) until all
of the following conditions have been satisfied--
(A) the Nation and the State of Arizona have
entered into a water rights settlement
agreement approved by an Act of Congress that
settles the Nation's claims to water in
Arizona; and
(B) the Secretary has entered into a contract
with the Nation for the delivery of 6,411 acre-
feet of Central Arizona Project non-Indian
agricultural priority water in accordance with
Sec. 104(a)(1)(B)(ii) of Pub. L. 108-451.
(2) ACCOUNTING FOR USES IN ARIZONA.--Any depletion of
water from the San Juan River stream system in the
State of New Mexico that results from the diversion of
water by the Project for uses within the State of
Arizona (including depletion incidental to the
diversion, impounding, or conveyance of water in the
State of New Mexico for uses in the State of Arizona--
(A) shall be accounted for as a part of the
2.8 million acre-feet of Colorado River water
apportioned to the State of Arizona in Article
II(B)
(1) of the decree of the Supreme Court of the
United States in Arizona v. California (376
U.S. 340); and
(B) shall not increase the total quantity of
water to which the State of Arizona is entitled
under any compact, statute, or court decree.
6. Forbearance.--Section 303(e)(2) of the bill should expressly
state that the Nation may not forbear deliveries in the State of New
Mexico to allow the delivery of water for use in Arizona when there is
a shortage in the Lower Basin that reduces the availability of CAP NIA
priority water. Deliveries to the Navajo Reservation through the
Navajo-Gallup pipeline must be reduced in the same proportion as other
CAP NIA priority water during a Lower Basin shortage.
comments on draft navajo-gallup pipeline bill
General Comments
The bill is premised on a draft EIS and draft hydrologic
determination, neither of which has yet been accepted by the
Secretary of the Interior. This is not a good precedent,
particularly when the Lower Basin States have expressed concern
about the draft hydrologic determination. (Mike Conner has
indicated that the final determination reference will be
substituted when issued.)
The bill leaves many unanswered questions about Colorado
River accounting, water delivery contracting and priority of
deliveries. The specific comments below attempt to clarify many
of these issues.
Specific Comments
1. Priority within the San Juan River system.--The priority of the
Navajo-Gallup pipeline water within the San Juan River system is not
clear. Section 102(b) of the bill provides that the Secretary shall
``allocate the shortage'' to the Navajo Reservoir water supply, with
first priority going to the water for the Navajo-Gallup pipeline. This
seems to say that the water for the pipeline is the first to be
shorted. But this section of the bill is amending Sec. 11 of Pub. L.
87-483, which directs the Secretary to apportion the water that is
available during shortage on the San Juan, suggesting that the pipeline
might be first to receive available water during a shortage. The bill
should be revised to clearly express the intended result. See suggested
changes in No. 5(e).
2. Colorado River Compact Issues.--Section 103 of the bill states
that it does not amend the Law of the River ``unless expressly provided
in this Act.'' There is nothing in the bill that would expressly amend
the 1922 Colorado River Compact. Accordingly, there is nothing in the
bill that would:
Allow the diversion of water in the Upper Basin for use in
the Lower Basin.
Relieve the Upper Basin from any part of its Compact
obligation to deliver 75 million acre-feet to the Lower Basin
every 10 years.
To address these problems, the following should be added to the end
of 303 of the bill:
(h) COLORADO RIVER COMPACT.--Notwithstanding any other
provision of law, water may be diverted from the San Juan River
in New Mexico for use within the Lower Basin, as that term is
used in the 1922 Colorado River Compact, either in New Mexico
or on the Navajo Reservation in Arizona. Water diverted from
the San Juan River and delivered for use on the Navajo
Reservation in Arizona shall be deemed to have been delivered
to the Lower Basin at Lee Ferry for purposes of Article III(d)
of the Colorado River Compact.
3. Colorado River System Priority.--Section 303 of the bill should
also include the following provision:
(i) PRIORITY.--Colorado River system water diverted in the
Upper Basin for use in the Lower Basin, as those terms are used
in the Colorado River Compact, shall have the same priority of
delivery in time of shortage as the Central Arizona Project.
However, the diversion from the San Juan River for the Project
that is delivered for use in the lower Colorado River basin
within the State of New Mexico is subject to shortages and
priorities of water rights on the San Juan River, under the
jurisdiction of the New Mexico State Engineer. The reductions
in water use during shortage conditions on the San Juan River
for the Project deliveries in the lower Colorado River basin
mitigate the increased impacts caused by diversions of water
from the upper Colorado River basin in New Mexico, therefore
this Project diversion shall not be subject to lower Colorado
River basin priorities of the Colorado River Basin Project Act.
4. Allocation to Navajo Nation Communities in Arizona.--Section
303(b)(2)(D) of the bill should expressly state that the 6,411 acre-
feet of water allocated for use in Arizona is the water identified in
Sec. 104(a)(1)(B)(ii) of the Arizona Water Settlements Act (AWSA), Pub.
L. 108-451--i.e., CAP non-Indian agricultural (NIA) priority water--and
is subject to the provisions of the AWSA, including but not limited to
Sec. 104(a)(1)(B)(ii), Sec. 104(a)(1)(B)(iii), Sec. 104(a)(3), and
Sec. 104(e). See, suggested changes in No. 5(e).
5. Conditions for Use in Arizona.
a. Section 303(d)(1)(C) of the bill requires the Secretary to
determine that the Navajo uses within Arizona are within
Arizona's Colorado River apportionment. The bill does not
specify whether the water must be within Arizona's 50,000 of
Upper Basin entitlement (which was not the intent) or its 2.8
maf Lower Basin entitlement. This section should be deleted.
b. In addition to any capital or OM&R costs associated with
the use of the Navajo-Gallup pipeline, the United States or the
Nation must pay CAP fixed OM&R costs for any water delivered to
the Navajo Reservation for use in Arizona. The United States
can pay those costs from the Lower Colorado River Basin
Development Fund in accordance with 43 U.S.C. Sec. 1543(f), as
amended by the AWSA.
c. Section 303(d)(1)(A) of the bill requires the Secretary to
``determine by hydrologic investigation that sufficient water
is reasonably likely to be available to supply uses from water
of the Colorado River system allocated to the State of
Arizona.'' It's not clear what this means. This provision
should be deleted.
d. Section 303(d)(2) of the bill provides that water used by
the Navajo Nation in Arizona counts against Arizona's Colorado
River entitlement. Again, the bill should clarify that this
water counts against Arizona's Lower Basin entitlement. See
suggested changes in No. 5(e).
e. In summary, section 303(d) of the bill should be revised
to read as follows:
(d) CONDITIONS FOR USE IN ARIZONA.--
(1) REQUIREMENTS.--Project water shall not be
delivered for use by any community of the Nation in the
State of Arizona under subsection (b)(2)(D) until all
of the following conditions have been satisfied--
(A) the Nation and the State of Arizona have
entered into a water rights settlement
agreement approved by an Act of Congress that
settles the Nation's claims to water in
Arizona;
(B) the Secretary has entered into a contract
with the Nation for the delivery of 6,411 acre-
feet of Central Arizona Project non-Indian
agricultural priority water in accordance with
Sec. 104(a)(1)(B)(ii) of Pub. L. 108-451; and
(C) delivery by the Secretary of the water
referenced in (B) shall be in accordance with
the rules and regulations promulgated for the
provisions of the Colorado River Basin Project
Act, 43 U.S.C. 1521 et seq.
(2) ACCOUNTING FOR USES IN ARIZONA.--Any depletion of
water from the San Juan River stream system in the
State of New Mexico that results from the diversion of
water by the Project for uses within the State of
Arizona (including depletion incidental to the
diversion, impounding, or conveyance of water in the
State of New Mexico for uses in the State of Arizona)--
(A) shall be accounted for as a part of the
2.8 million acre-feet of Colorado River water
apportioned to the State of Arizona in Article
II(B)(1) of the decree of the Supreme Court of
the United States in Arizona v. California (376
U.S. 340); and
(B) shall not increase the total quantity of
water to which the State of Arizona is entitled
under any compact, statute, or court decree.
6. Forbearance.--Section 303(e)(2) of the bill should expressly
state that the Nation may not forbear deliveries in the State of New
Mexico to allow the delivery of water for use in Arizona when there is
a shortage in the Lower Basin that reduces the availability of CAP NIA
priority water. Deliveries to the Navajo Reservation through the
Navajo-Gallup pipeline must be reduced in the same proportion as other
CAP NIA priority water during a Lower Basin shortage.
Attachment
State of New Mexico,
Office of the State Engineer,
Santa Fe, NM, June 5, 2007.
Herbert R. Guenther,
Director, Arizona Department of Water Resources, 3550 North Central
Avenue, Phoenix, AZ.
Dear Mr. Guenther: All Colorado River basin states are to be
congratulated regarding the execution of the Agreement Concerning
Colorado River Management and Operations and the submission of joint
comments to the Bureau of Reclamation regarding the coordinated
operation of Lakes Mead and Powell and shortage sharing guidelines for
the lower basin states. New Mexico hopes that the agreement will be a
step toward continued cooperation among the basin states relating to
each state's use and development of its share of water from the
Colorado River system. For New Mexico, the Navajo Settlement and
corresponding Navajo-Gallup pipeline are important projects to enable
New Mexico to utilize its apportionment of water under the Upper
Colorado River Basin Compact. Federal legislation relating to the
Navajo Settlement has been re-introduced this Congress (S 1171 and HR
1970) and New Mexico hopes that in the spirit of the recent Agreement,
all basin states will support the Navajo Settlement.
This letter responds to the State of Arizona's comments dated April
5, 2007, and April 20, 2007, relating to New Mexico's Navajo Settlement
and the corresponding federal legislation. Discussions with
representatives of Arizona have helped New Mexico understand the issues
raised by Arizona, and although some of Arizona's issues can be
addressed, New Mexico cannot agree to all of the changes proposed by
Arizona. As noted in more detail below, many of Arizona's proposed
changes require consultation and agreement by the Navajo Nation and the
other basin states.
Arizona's general objection relates to the legislation's citation
to the draft EIS and draft hydrologic determination. As you know, the
basin states have agreed on language provided to the Secretary of the
Interior for the draft hydrologic determination, and we expect the
Secretary of the Interior to issue the final determination, at which
point the legislation can be amended accordingly. Regarding the draft
EIS, it is not uncommon for legislation to refer to a draft EIS or for
a project to be authorized before the NEPA process begins, and this
should not constitute a valid objection. Arizona also objects that the
Settlement Agreement and legislation conflict with existing law. New
Mexico does not agree that the Settlement Agreement violates any law,
compact or decree. With respect to one issue raised by Arizona, Section
303(g) of the legislation provides Congressional authorization of the
use of upper basin water in the lower basin in New Mexico. The
legislation also specifies that the water used by the project in New
Mexico will be part of New Mexico's Upper Basin apportionment. New
Mexico is willing to recommend to our congressional delegation that
Section 303(g) be amended to state:
(g) Colorado River Compacts.--Notwithstanding any other
provision of law, (1) water may be diverted by the Project from
the San Juan River in the State of New Mexico for use in the
lower basin, as that term is used in the 1922 Colorado River
Compact, in New Mexico; and (2) water diverted under paragraph
(1) shall be a part of the consumptive use apportionment made
to the State of New Mexico by Article III(a) of the Compact.
Arizona also proposes that the legislation include a generic
provision that water diverted in the upper basin for use in the lower
basin must have the same priority date as the Central Arizona Project,
but that the Navajo-Gallup project would be excluded from that
requirement. There is no legal basis for Arizona's proposal and it is
not appropriate or necessary to include Arizona's recommended language
regarding priority in the legislation.
Arizona's other comment relating to priority concerns Section 102
of the legislation which amends Section 11 of the 1962 Act. Section
102(b) amends the 1962 Act to provide specific guidance to the
Secretary of the Interior in allocating physical supply shortages out
of Navajo Reservoir and is consistent with Article IX of the Upper
Colorado River Basin Compact.
The remainder of Arizona's comments relate to the potential water
supply to be allocated for Navajo Nation uses in Arizona. As you are
aware, New Mexico's Settlement with the Navajo Nation includes a
pipeline system from Navajo Reservoir to communities within New Mexico
that also extends to Window Rock, the Navajo Nation capital city
located in Arizona less than 30 miles from where the pipeline will
service the City of Gallup in New Mexico. New Mexico's Navajo
Settlement leaves open the determination of the source of water for
uses in Arizona.
Arizona would like to specify that the water supply for uses in
Window Rock through the Navajo-Gallup pipeline will be the water supply
identified in Section 104(A)(1)(B)(ii) of the Arizona Water Settlements
Act. That provision of the AWSA authorizes the Secretary of the
Interior to retain 6,411 acre-feet of water, out of a pool of 67,300
acre-feet of Central Arizona Project ``agricultural priority water'',
as that term is defined in the Gila River settlement agreement, for a
future water rights settlement agreement with the Navajo Nation in
Arizona. To my knowledge, there is currently no agreement among parties
in Arizona regarding this issue, and therefore, it would be premature,
at best, to specify a particular supply of water for the Window Rock
uses until an agreement is reached within Arizona.
In addition, even if an agreement among parties in Arizona existed,
accounting for diversion of Central Arizona Project water from of an
upper basin tributary would have to be agreed to by all basin states.
It would not be appropriate to pre-determine this issue through New
Mexico's Navajo Settlement legislation without the agreement of the
other basin states and discussion with the Department of Interior.
New Mexico hopes that this explanation will provide the basis under
which Arizona can fully support New Mexico's settlement with the Navajo
Nation. Please contact me if you have any questions.
Sincerely,
John R. D'Antonio, Jr.
State Engineer.
The Chairman. Thank you very much.
Representative Lundstrom, we're very glad to have you here.
STATEMENT OF PATRICIA A. LUNDSTROM, MEMBER OF THE NEW MEXICO
HOUSE OF REPRESENTATIVES AND EXECUTIVE DIRECTOR, NORTHWEST NEW
MEXICO COUNCIL OF GOVERNMENTS, GALLUP, NM
Ms. Lundstrom. Thank you, and good afternoon Chairman
Bingaman, and Ranking Member Senator Domenici. It's very good
to see both of you today.
As you know, I'm Patty Lundstrom and I'm the Executive
Director of the Northwest New Mexico Council of Governments and
that's been since 1985. I'm currently serving the fourth term
in the New Mexico House of Representatives. Senators, with me
today are Gallup Mayor pro tem, Bill Nechero and Gallup City
Counselor Jay Azua, as well as our COG Deputy Director Jeff
Kiely.
Senators, I'd like to thank you for inviting me to
participate in this historic hearing today.
I come before you to speak in favor of Senate Bill 1171.
This legislation is the essential instrument for authorizing
and financing the Rural Water Project we have been working on
for decades. We have known it as the Navajo Gallup Water Supply
Project. Since 1991, I have served as chair of the Steering
Committee for this project. The need for the project has been
known to Congress and the Department of Interior for over 50
years. Scientific studies have made it clear that the only hope
for sustainable water supply for eastern Navajo land and Gallup
lies in a surface water supply from the San Juan River.
After years of work, through a minefield of legal,
technical, political, environmental, and financial issues, we
are finally at the point of bringing to you our plan for
getting this water supply conveyed to this parched region. The
Federal Government, through the involvement and support of the
Congress, the Bureau of Reclamation and Indian Affairs, and the
Fish and Wildlife Service, has been an active and constructive
part of this consensus plan.
The Steering Committee has been a unified working group
with participation by State and Federal agencies, the Navajo
and Jicarilla-Apache Nations, the city of Gallup, and technical
partners in the process. In my 22 years as COG Director, this
has been the most ambitious and complex project I've seen in
our region. It has also invoked the highest levels of
cooperation, professionalism, and commitment by the individuals
and agencies involved.
The needs for the project are clear. Many Navajo
reservation households have never had a public water system.
The Navajo economy already struggles well below poverty. It
stands no chance of development without a sustainable public
water supply for its communities. The Jicarilla-Apache Nation
has a water rights settlement, but needs economic development
in order to tap the fullness of these rights, as well as a way
to obtain a water supply from the river. The city of Gallup's
water table is dropping 20 feet a year and the city will face
peak use shortages within 5 years and chronic shortages within
15 years.
Since I work closely with Gallup in both my public service
roles, I will briefly outline Gallup's role in the project.
Gallup is a transportation hub for the southwest and a major
commercial center for the Navajo reservation. Within a few
decades Navajos will likely make up one-half of Gallup's
population. The partnership between Gallup and the Navajo
Nation on this project has been remarkable. The Gallup regional
water system, at the back-end of the Navajo-Gallup pipeline, is
now under development in full cooperation with the Navajo
Nation and the State of New Mexico.
Under this system, city infrastructure will be used to
convey water to neighboring Navajo communities, both now and
the future when the rural water supply project is complete. The
State has committed over $9 million to this regional system.
Gallup also supported the State's commitment of over $15
million in funding for the regional water infrastructure on the
east side of the project area, which is, will ultimately tie
into the Cutter reservoir. These regional system partnerships
have generated broad commitment to the motto, ``Real water to
real people in real time.''
Since shortages are likely in Gallup, even before the
project is completed, Gallup has proactively worked to secure
its water future in both the short and long-term. It has
adopted an aggressive water rate structure to spur conservation
and to finance local water infrastructure and new water
supplies. It has started developing a waste water reuse system
using reverse osmosis technology. It is working to develop new
ground water sources previously used by extractive industries
and has worked on cooperative agreements with Navajo and
Jicarilla to ensure a water source for the city's participation
in the rural water supply project.
The city of Gallup stands in support of this legislation.
The city concurs, in particular, with the concept of a 75
percent Federal cost share for the city's portion of project
costs as reflected in Senate bill 1171. The affordability for
the city is affected by a number of unique factors, most
predominantly its commercial hub status for a broad rural area
and the existence of pockets of high poverty, both within and
outside the city. The city will need a water supply for its
share of the project and the city is dependent on the project's
two Indian tribes or alternatively, the Secretary of Interior
for that supply. The city's purchase of its own water rights in
the San Juan River would be high in cost, high in controversy,
and low in feasibility at this point.
Overall, this legislation represents a perfect storm of
opportunity for the Federal Government to join forces with its
State and local partners, to meet the critical water needs of
this region of New Mexico, while settling the Navajo Nation's
water rights claims. The project is essential to the economic
viability of northwestern New Mexico.
On behalf of the Steering Committee, the Council of
Governments, and the New Mexico State Legislature, I urge your
support for Senate bill 1171. The estimated costs for this
legislation are high, but the State and the project partners
are totally committed to getting this done with your help. We
dare not delay any longer in meeting the human and economic
needs represented in this initiative. For our Steering
Committee, this worthy cause has been on our watch for a couple
of decades and we hope, now that it's on your watch as well,
that you will not let this opportunity fail.
Thank you for your timely and favorable consideration.
Thank you, Senators.
[The prepared statement of Ms. Lundstrom follows:]
Prepared Statement of Patricia A. Lundstrom, Member of the New Mexico
House of Representatives and Executive Director, Northwest New Mexico
Council of Governments, Gallup, NM
Mr. Chairman and Members of the Committee, I am Patricia Lundstrom,
member of the New Mexico House of Representatives in my fourth term
serving House District 9, and Executive Director of the Northwest New
Mexico Council of Governments since 1985.
State House District 9 encompasses about 3,000 square miles in
northwestern New Mexico, including the western portion of the City of
Gallup and 9 rural Navajo communities lying within McKinley and San
Juan Counties. Navajos comprise about two-thirds of the population of
this District.
The Northwest New Mexico COG is the regional planning agency
designated by the State of New Mexico and the Federal government to
serve the State's three counties of the Four Corners region: Cibola,
McKinley and San Juan Counties. This is about 15,000 square miles of
high desert territory, including large reservation areas for four
Indian tribes and a population of about 225,000 people residing in 6
municipalities and 77 rural communities. About one-half of the land
base and one-half of the population are Native American.
I want to thank you for inviting me to participate in this historic
hearing today.
I come before you to speak in favor of the proposed Settlement of
Navajo Nation water rights in the San Juan River and the other
associated titles included in Senate Bill 1171. My primary interest in
this bill and in the Settlement is that this legislation is an
essential instrument for authorizing and financing the proposed rural
water infrastructure project we have been working on for decades. We
have known it as the Navajo-Gallup Water Supply Project, and in the
context of this bill it is titled the Northwestern New Mexico Rural
Water Supply Project.
Since 1991, I have served as Chair of the Intergovernmental
Steering Committee for the Navajo-Gallup Water Supply Project. This
project is the flagship of the proposed water rights Settlement, as it
plans to construct primary water pipelines to deliver water from the
San Juan River to rural Navajo communities in northwestern New Mexico,
to the southwestern portion of the Jicarilla Apache Nation, and to the
City of Gallup.
During these past 16 years, I have seen the Navajo-Gallup project
revived from its prior stalemate condition and, with the consistent
leadership and support of Senators Bingaman and Domenici, I have seen
it sustained as a planning initiative to the present day through a
minefield of legal, technical, bureaucratic, political, financial and
environmental issues.
The Steering Committee has been the primary nexus and forum in
which these issues have been addressed and resolved by a persevering
coalition of partners, including:
The Navajo Nation, with representatives from the Nation's
Natural Resources Division, Division of Justice, President's
Office, and Water Rights Commission;
The Jicarilla Apache Nation, with staff and policy
representation from the Nation's Water Rights Commission and
from the Office of the President;
The City of Gallup, which serves as a project beneficiary
(for 20% of the project's eventual capacity) and as a hub
distribution system for the project's water supply at its
southern end, to water users not only within the City limits
but also in a number of neighboring Navajo communities;
The State of New Mexico, primarily through its State
Engineer's Office and the Interstate Stream Commission; the
State is a party to the interstate compacts affecting the
Colorado River and its tributaries, as well as to a negotiated
settlement of the Navajo Nation's water rights in the San Juan
River, and (through its Legislature) the State is a major
contributor to infrastructure improvements in support of the
overall Navajo-Gallup Water Supply Project;
The Bureau of Reclamation, which serves as federal lead for
the project out of its Western Colorado Area Office; and
The Bureau of Indian Affairs, which is federal administrator
of the Navajo Indian Irrigation Project, and which has a
substantial role with regard to real properties and rights-of-
way affected by the project;
The Navajo Tribal Utility Authority, the Navajo Nation's
utility enterprise that operates all of the public water
systems on the Navajo Reservation;
The Navajo Area Indian Health Service, a division of the
Public Health Service in the U.S. Department of Health & Human
Services, which is responsible for planning and constructing
water facilities in service to Navajo communities; and
The Northwest New Mexico Council of Governments, a federal-
and state-designated regional planning agency which chairs the
Steering Committee.
In addition to these Steering Committee groups, we have enjoyed the
professionalism and cooperation of two agencies in particular that have
also contributed greatly to the success of our planning efforts thus
far:
The Upper Colorado River Commission has worked thoughtfully
and cooperatively with the State of New Mexico and the Navajo
Nation in accommodating the unique needs and configurations of
this project. In particular, in 2003 the Commission resolved to
support and consent to diverting water from the Upper to the
Lower Basin of the Colorado River for the purposes of the
Navajo-Gallup project, and it certified its support for ``such
Congressional action as may be necessary to authorize the
Navajo-Gallup Water Supply Project.''
The United States Fish and Wildlife Service worked
cooperatively with all parties to complete appropriate planning
studies in the San Juan River that would identify the
depletions from the river that could be made without negatively
impacting the recovery of endangered species of fish in the
river.
This project is the most ambitious and complex of the many local
and regional initiatives I have been a part of for over two decades. It
has also evoked the highest levels of cooperation, professionalism and
commitment by a group of agencies and individuals that I have ever
seen. My Council of Governments staff and I have been working on this
project continuously since the early 1990s, and there have been many
other individuals from all the participating agencies who have worked
with us on it for years at a time. For all of us, this is not just
``any project''; it's personal. Getting it done makes so much sense, at
so many levels, that we are all committed to it for the long-haul.
Since the late 1950s, State and Federal officials have concurred
with the Southwest region's top hydrologists that the only hope for
long-term sustainable water supply for the eastern Navajo Reservation
and for the City of Gallup lies in the surface water supply provided by
the San Juan River. The San Juan is a tributary to the Colorado River,
originating in the mountains of southwestern Colorado, flowing through
a portion of northwestern New Mexico, and proceeding to join the
Colorado River at Lake Powell in southern Utah and northern Arizona.
Through allocations confirmed in the hydrologic determination recently
approved by Interior Secretary Kempthorne, the San Juan River provides
about 40% of New Mexico's surface water supply. The Navajo-Gallup
project would divert nearly 38,000 acre-feet of water from the river,
or about 5\1/2\ percent of New Mexico's river allocation.
The needs for the Navajo-Gallup Water Supply Project are clear and
evident:
For the Navajo Nation, there is a significant population of
Navajo people in the northwestern New Mexico service area who
do not have, and have never had, a public water system. To this
day, nearly 40% of Navajo families in the service area still
haul water to meet basic household and livelihood needs. It is
also clear that the Navajo economy, already struggling well
below the poverty line, stands no chance of development without
the provision of water as the most basic of all human needs.
For the Jicarilla Apache Nation, there is already in place a
settlement agreement under which this neighboring tribal
community has secured water rights, but for which significant
economic and infrastructure development is needed in order to
tap the fullness of these rights.
For the City of Gallup, the water table is dropping 200 feet
every ten years, and the City will be facing peak-use shortages
within five years and chronic shortages within fifteen years.
To focus further on the needs of the City of Gallup: Gallup serves
as a multimodal transportation portal for the Southwest and a major
commercial center for the Navajo Reservation. As such, it is as much a
``home'' and integral part of Navajo life as most other places in the
region. Within a few decades, we expect that Navajos will make up over
50 percent of Gallup's population. Despite a checkered history of
relationships between Gallup and the Navajo people, with some residue
of tension and mistrust even today, the partnership that has been
forged between Gallup and the Navajo Nation in the context of this
project has been remarkable. I foresee only further progress in this
relationship as this project moves forward.
It is important to note that, in my 16 years with the Steering
Committee, at no point has the City of Gallup attempted to insert its
needs and priorities in front of those of the Navajo Nation. Rather, it
has been a supporting partner, ensuring that its participation is
mutually beneficial to the City and to its Navajo neighbors.
As an example of this partnership, there has been a joint effort to
provide municipal water supply to Navajo households bordering the City
of Gallup on its east side. Past bureaucratic barriers to this service
have been erased, and by this summer's end, those Navajo families will
have running water for the first time.
Another example is the multilateral partnership between the City,
the State of the New Mexico, the Navajo Nation, the Indian Health
Service and the Navajo Tribal Utility Authority to finance and build
components of the Gallup regional water system, with the specific
objective of moving water through the City's system to the neighboring
Navajo communities adjacent to the City. The State has committed over
$9 million to this initiative, which is being developed in accordance
with the plans of the Northwestern New Mexico Rural Water Supply
Project.
The Navajo-Gallup partnership was further extended when the City
concurred with the request by the Navajo Nation, the Governor's office
and other agencies for State funding in support of urgently needed
water infrastructure serving five rural communities in the northeastern
sector of the Navajo-Gallup project service area. Over $15 million has
now been committed by the State to what is referred to as the ``Cutter
Lateral'' project, since this infrastructure will ultimately tie into
and be served by the pipeline to be built under the Northwestern New
Mexico Rural Water Supply Project.
These regional system partnerships have generated broad commitment
to the motto: ``Real water to real people in real time.''
Realizing the shortages that are likely prior to the advent of
surface water into the City's water supply, the City of Gallup has also
risen to the challenge of the region's impending water crisis by
exploring and implementing various initiatives to secure its water
future--both leading up to and in conjunction with the completion of
the Northwestern New Mexico Rural Water Supply Project.
In 2003, the City sponsored a Town Hall on Water, co-
facilitated by the public policy group New Mexico First, at
which participants adopted a consensus plan to establish Gallup
as a model town in the American West in terms of its commitment
to secure its water future and cooperate with its neighbors in
the ``water commons'' shared by all residents in the region.
Emerging from the Town Hall was the formation the Gallup
Water Board, which assisted the City Council in the radical
revision of the City's water rate structure in support of
conservation and the generation of local financing for water
infrastructure and future water supply.
Another initiative was a partnership with the Bureau of
Reclamation to study the feasibility of implementing a
comprehensive wastewater recycling program utilizing reverse
osmosis technology.
Yet further, Gallup has pursued a permit to develop water
supply in water fields east of the City formerly owned and
developed by extractive industries.
Finally, a Memorandum of Understanding is in its final draft
stages between the City, the Navajo Nation and the Jicarilla
Apache Nation, by which the parties will commit to ensure that
the City is afforded legal access to a share of the water to be
supplied by the Navajo-Gallup project.
Within the overall scenario of the Navajo-Gallup project, the City
of Gallup remains in full support of the project and of the water
rights settlement which is its primary facilitating instrument. At the
same time, the City is concerned about the cost of its participation in
the project.
The Economics analysis contained in the project's Planning Report
and Draft Environment Impact Statement suggests that the City's ability
to pay is fairly close to the threshold formula applied by the federal
government in terms of median household income. The somewhat misleading
conclusion that might be derived is that the City can afford to self-
fund its share of the project.
A number of factors mitigate against such a conclusion:
Gallup's status as a hub commercial center for a broad
geographic area results in a unique pattern of impact on the
City's infrastructure. Although the current municipal
population is about 22,000, the number of people moving around
and doing business within the City may soar to between 70,000
and 100,000 people--especially on weekends and on ceremonial
occasions. It is essential to understand that Gallup serves a
broader service area than its municipal boundaries would
indicate. Over 80 percent of the students in Gallup schools are
Navajo. The Gallup Indian Medical Center serves the regional
Native American population. Due to the lack of water service on
the Reservation, area residents regularly use City laundry, car
wash and other facilities that increase the demand for water.
Higher rates resulting from the City's cost for participating
in the new water supply project will be passed on to the low-
income residents in the broader regional community, thus
affecting the overall ``affordability'' of the project.
Although the influx of visitors generates a
disproportionately high level of gross receipts tax revenues in
the City, the City and surrounding County are severely limited
in the development of property tax revenues, and the City is
virtually land-locked by public, non-taxable lands on all
sides, for which compensation by such funds as Payment in Lieu
of Taxes (PILT) is only a fraction of the revenue shortfalls
actually occurring.
Although Gallup's median household income is shown in the
Economics report as only a shade or two below the
``affordability level'' of the project, yet this income figure
is deceptive as well, since there is a large gap between the
minority of well-to-do households and the majority of low and
moderate-income households in the City. Not surprisingly, two-
thirds of the City's residential water revenues come from the
population group utilizing the lowest quantities of water, that
is, fewer than 6,000 gallons per month. These lower water users
are predominantly the City's lowest-income households. The
City's inverted water rate structure provides some cost
protections for these lower users, but these may be
insufficient to keep rates within the affordable range for this
population.
The Economics analysis in the Final Report does not take
into account the need for replacing aging infrastructure. Even
with Gallup's new progressive water rate structure and at
maximum bonding capacity, the City's funds are insufficient to
meet even current operations, maintenance and replacement
costs, much less to develop new infrastructure or participate
in a new water supply initiative.
The City's stake with respect to the Settlement of the
Navajo Nation's water rights in the San Juan River is clearly
secondary to that of the Nation, the State of New Mexico and
the Federal government. With respect to accessing a legal water
supply, the City is essentially at the mercy of the two Indian
tribes involved in the project. The City's pursuit of the
independent purchase of water rights in the San Juan River
would be high in cost, high in controversy and low in
feasibility at this point.
It is the City's position, therefore, that it will need a
high level of Federal funding support for its share of the
project costs.
All in all, the Northwestern New Mexico Rural Water Supply Project
represents a ``perfect storm'' of opportunity for the Federal
government to meet the critical water needs of the people in this
region of New Mexico, while settling the water rights claims of the
Navajo Nation as an essential component of the overall initiative. The
project's promise of ``real water to real people in real time'' forms a
primary basis for the economic viability of the northwestern quadrant
of New Mexico.
The Steering Committee for this longstanding and critical project
effort, along with the institutions I represent--the Northwest New
Mexico Council of Governments and the New Mexico State Legislature--
urge your support for Senate Bill 1171, and by implication, for
authorization of the Northwestern New Mexico Rural Water Supply
Project. I acknowledge that the projected costs for this project are
high, but we dare not delay any longer in meeting the human and
economic needs represented in this initiative.
For our Steering Committee, this worthy cause has been on our watch
for a couple of decades, and we hope--now that it's on your watch as
well--that you will not let this opportunity fail.
Thank you for your most favorable and timely consideration of
Senate Bill 1171.
The Chairman. Thank you very much.
Mr. Sanchez, you're the cleanup hitter here, go right
ahead.
STATEMENT OF MARK SANCHEZ, EXECUTIVE DIRECTOR, ALBUQUERQUE
BERNALILLO COUNTY WATER UTILITY AUTHORITY, ALBUQUERQUE, NM
Mr. Sanchez. Thank you, Senator Bingaman, Ranking Member
Senator Domenici. My name is Mark Sanchez. I'm the Executive
Director of the Albuquerque Bernalillo County Water Utility
Authority, which provides water and waste water service to the
Albuquerque metropolitan area. The Authority is successor in
interest to the city of Albuquerque's rights to the San Juan-
Chama Project, authorized in Public Law 87-483. I stand before
you today to clearly support settling the Navajo claims and
strongly to endorse the need for providing drinking water under
the Navajo-Gallup Water Supply Project.
My testimony today is focused on the impact of the
settlement, on the long-term availability of water from the San
Juan-Chama Project, which diverts water from southern Colorado
into New Mexico by way of the San Juan River in Rio Chama.
Specifically, I'd like to provide some background on the
project and explain why it's so critical to our future and
share some concerns and recommendations on Senate bill 1171.
First some background on the project. The city signed a
contract for 48,200 acre-feet of San Juan-Chama water in 1965,
which Senator Domenici, I'm sure, recalls. To date, we have
invested more than $50 million for the San Juan-Chama water and
will continue to make payments until 2020. At the time the
contract was signed, the surface was intended to offset impacts
of using ground water. The belief was that the San Juan-Chama
water being diverted into the Rio Grande would continually
recharge Albuquerque's aquifer, thereby ensuring adequate
ground water supplies in perpetuity.
However, in 1994 USGS published a report that completely
changed our understanding and thinking about the aquifer. The
recharge effect was not occurring as we had believed and the
conclusion was that sole reliance on the aquifer would lead to
its eventual depletion and wide-spread land surface subsidence.
In 1995, the city immediately began a water conservation
program and began looking at alternatives to ground water. The
solution was to use surface water from the San Juan-Chama
project as our new drinking water source and we have since
undertaken a $450 million locally funded effort to make that a
reality.
This effort, which we call the San Juan-Chama Drinking
Water Project, includes a new diversion dam, pump station on
the Rio Grande, state-of-the-art water treatment plant, 46
miles of raw water and transmission pipelines to enscrate the
surface water into the existing water system. The project will
come online in 2008 and will represent 90 percent of our
drinking water supply. It will be our primary water source well
into the future. From a population perspective, San Juan-Chama
water will meet the demands of almost 40 percent of the State
of New Mexico in the Rio Grande valley.
It is critical that these interests are protected in the
settlement. The authority does have some very specific comments
and recommendations about the legislation. I have provided
detailed discussion of these for inclusion in the record. I
will attempt to briefly summarize our major concerns and
recommendations for the committee.
The Chairman. Why don't you do that very briefly, since
we're about halfway through a vote and we're going to have to
take another short recess.
Mr. Sanchez. Very quickly, Senator.
First on the issue of shortages, how they are portioned and
calculated is of critical importance. In our opinion the
legislation remains unclear on this point. The authority has
commissioned and independent hydrological analysis of the
settlement impacts and we look forward to providing that to all
the parties.
Second on the role of the State, the legislation includes
language that allows the State of New Mexico to reduce the
amount of water for the Navajo reservoir contractors in the San
Juan-Chama project. We believe this should either be deleted or
substantially clarified.
Last, on the Bureau of Reclamation, they have produced many
hydrologic analysis of water supply. It's unclear how much
water will be available. It should also be noted that the
Bureau is not operating the San Juan-Chama project to its
maximum efficiency. Our view is that if that efficiency was
increased, the impacts of shortages in the future would be
minimal.
In the interest of time, Mr. Chairman, I'll conclude my
remarks.
[The prepared statement of Mr. Sanchez follows:]
Prepared Statement of Mark Sanchez, Executive Director, Albuquerque
Bernalillo County Water Utility Authority, Albuquerque, NM
Mr. Chairman and members of the committee, my name is Mark Sanchez.
I am the executive director of the Albuquerque Bernalillo County Water
Utility Authority (the Authority). The Authority was created by the New
Mexico State Legislature in 2003 as a partnership between the City of
Albuquerque (the City) and Bernalillo County. The Authority is the
successor in interest to the City for rights to the San Juan-Chama
project which was authorized in Public Law 87-483.
The Authority would like to thank the Committee for the opportunity
to testify on Senate Bill 1171 and specifically the leadership of
Chairman Senator Bingaman and Senator Domenici on this important
settlement and legislation. We also would also like to recognize the
State of New Mexico, the Navajo Nation and others who have worked very
hard on negotiating this settlement.
We understand that S. 1171 settles the Navajo Nation's water rights
claims on the San Juan River in New Mexico in addition to providing
water supplies for the Navajo-Gallup water supply project. The
Authority supports settling the Navajo claims and strongly endorses the
provision of drinking water under the Navajo-Gallup water supply
project. We understand that resolving the Navajo's claims reduces the
risk from potentially larger claims which could and most likely would
affect the available water supply in the San Juan River for non-Indian
uses.
My testimony today is focused on the impacts of the settlement on
the long-term availability of water from the San Juan-Chama project,
which diverts water from southern Colorado into New Mexico by way of
the San Juan River and the Rio Chama. The San Juan-Chama project was
authorized in Public Law 87-483 along with the Navajo Indian Irrigation
Project (N.I.I.P.). Specifically, I'll be providing some background on
our involvement with the project and why it is so critical to our
community. I will also be making you aware of the Authority's concerns
about certain sections of the legislation as it is written. I wish to
make it clear that we are committed to continue working with our
Congressional delegation, the State, and the Navajo Nation in
addressing our concerns and recommendations to preserve and protect the
San Juan-Chama project.
background on albuquerque's involvement in the san juan-chama project
A conceptual framework for importing Colorado water into the Rio
Grande basin from the San Juan River into the Rio Chama (hence San
Juan-Chama) was developed in the technical documentation for dividing
the waters of the Rio Grande in 1928. The Bureau of Reclamation at that
time recognized that the City of Albuquerque was going to need
additional supplies in the future and conceptually designed a couple of
options for importing the water.
The legislative history for the San Juan-Chama project clearly
shows that the City was the primary beneficiary of the project. The
water was needed because the Albuquerque was not specifically provided
any native water supplies under the Rio Grande Compact. In 1963, the
City signed the first contract for an annual amount of 53,200 acre-feet
of San Juan-Chama water that was reduced in a contract amendment in
1965 to 48,200 acre-feet per year.
Under the City's and now the Authority's contract, we are required
to fully repay the United States all the costs for municipal and
industrial supplies apportioned under the San Juan-Chama project,
including interest during construction. We are also required to pay our
proportional share of the operation and maintenance costs for the
project on an annual basis. To date, we have invested more than $50
million for San Juan-Chama water and will continue to make payments
until 2020.
albuquerque's need for san juan-chama water
In the early 1960s, the technical understanding in the Middle Rio
Grande region was that the aquifer was a limitless resource that would
meet the needs of the City in perpetuity. The City was required to
provide surface water supplies to offset the impacts of using ground
water and signed the contract for San Juan-Chama water to provide that
offset.
In 1994, the United States Geological Survey published a report
that completely changed our understanding of the aquifer, the
relationship between the Rio Grande and the aquifer, and which
concluded that sole reliance on the aquifer will lead to widespread
land surface subsidence.
The City's response was almost immediate. In 1995, the City
immediately began a water conservation program and began looking at
alternatives for providing a sustainable supply. In 1997, the City
Council adopted a new strategy to use San Juan-Chama water as a
drinking water source. Since 1997, we have been working toward using
surface water from the San Juan-Chama project as a drinking water
source. The $450 million San Juan-Chama Drinking Water Project will
come on-line in 2008 and will represent 90% of our supply at that point
and will be our primary source of supply well into the future. The
Drinking Water Project includes a new diversion on the Rio Grande, a
state-of-the-art water treatment plant, and 46 miles of raw water and
transmission pipelines to integrate the surface water into the existing
water system.
other san juan-chama contractors
The Authority's customers are not the only ones relying on San
Juan-Chama water. In addition to Authority, there are more than fifteen
San Juan-Chama contractors, including the City of Santa Fe and the City
of Espanola, that are planning and developing direct diversion and use
of San Juan-Chama water. From a population perspective, San Juan-Chama
water will meet the demands of more than one-third of the State of New
Mexico in the Rio Grande Valley. It is critical that these interests in
the Rio Grande are protected in this settlement.
authorizing legislation--public law 87-483
Under Section 11 on the authorizing legislation, the San Juan-Chama
project and the N.I.I.P. project and other contracts entered into for
delivery from the Navajo Reservoir were required to share in the
available supply in any year in which the Secretary anticipated a
shortage.
Specifically, the Secretary was required to determine that
sufficient water to fulfill said contract is likely to be available and
also the following:
Section 11, (a), paragraph 2:
The Secretary shall not enter into contracts for a total
amount of water beyond that which, in his judgment, in the
event of shortage, will result in a reasonable amount being
available for the diversion requirements for the Navajo Indian
irrigation project and the initial stage of the San Juan-Chama
project as specified in sections 2 and 8 of this Act.
The April 2007 Hydrologic Determination was signed by Secretary of
Interior, Dirk Kempthorne on May 23, 2007, fulfilling the obligation to
determine that sufficient water is likely to be available for the
settlement. However, the second requirement specifically relates to the
sharing of shortages and the water supply that would be available to
both the N.I.I.P. and the San Juan-Chama project. To date, we have not
reached an understanding with the Bureau of Reclamation or the State of
New Mexico regarding a determination about the water that could be
available to the San Juan-Chama project during a shortage and how new
contracts could affect the water supply.
In the Section 8 of the authorizing legislation, Congress imposed
several operational conditions for operating the San Juan-Chama
project. Under paragraph (a) the project diversions are limited to 1.35
million acre-feet in any ten year period and the maximum diversion in
one year is 270,000 acre-feet. Paragraph (b) states that the project
shall not cause injury, impairment, or depletion of existing or future
beneficial uses of water within the State of Colorado. Under paragraph
(b), each of the three diversions in Colorado have monthly bypass flow
requirements which provide for passing water to downstream users in
Colorado for uses in Colorado under the Upper Colorado River Basin
compact.
hydrologic analysis of settlement
The Authority has hired a consultant to complete an independent
hydrologic analysis of the impacts of the Settlement on the San Juan-
Chama project as it relates to the frequency and extent of shortages.
The Authority anticipates completion of the hydrologic analysis within
the next few weeks and would like to share that information with
interested parties at that time. There may be changes to the
legislation which may affect our hydrologic analysis so we reserve the
right to provide additional feedback during this process.
specific comments on s. 1171
Section 101--Navajo Reservoir Water Bank
The creation and utilization of excess capacity in the Navajo
Reservoir provides flexibility for users in the San Juan basin
specifically downstream of the reservoir. It is unclear what water
qualifies to be placed in the water bank and more importantly how that
water is to be administered to prevent unintended consequences of
reducing the ability to store native water in the Navajo Reservoir.
Although the legislation states that the water bank shall be operated
in a manner that ``does not impair the ability of the Secretary of the
Interior to deliver water under contracts entered into under Public Law
87-483,'' more specific language should be developed to address what
impairment means. Does impairment mean that water that could be stored
in the reservoir is lost because there is no capacity to store it?
Although the water stored in the water bank is not subject to shortages
or releases to meet environmental needs, could this banked water be
used to exchange for offsetting implementation of shortages?
Section 102--Amendments to Public Law 87-483
Section 102(a)(2)(b)(1)--the legislation provides for a maximum
diversion right over a ten year period for the Navajo Indian Irrigation
Project to be the lesser of 508,000 acre-feet per year or the quantity
of water necessary to supply an average depletion of 270,000 acre-feet
per year. Although these figures were the subject of intense
negotiations, it seems that because there are two different figures
that an effort to clarify how these are to be used or what they
represent should be specified so as to avoid future misinterpretation.
Section 102(a)(2)(b)(2)--this provision allows an increase of
diversion, but does the 270,000 acre-feet of depletions still apply? It
is unclear whether this provision allows for increases in consecutive
years or just one year in a ten year period. If a shortage was declared
for two years in a row, would increased diversions be allowed in the
following years to make up the difference? We suggest adding language
that this increase in diversion not be allowed in any year where the
Secretary determines that the increase may increase the likelihood of a
shortage in subsequent years.
Section 102(a)(2)(d)--the language in this section does not appear
to limit the use of Navajo Indian Irrigation Project water to New
Mexico. As the water for the settlement is from New Mexico's
apportionment of Upper Colorado River water, any use of the water
should be limited exclusively in New Mexico. We suggest the addition of
a provision limiting the uses to New Mexico.
Section 102(b)--Runoff Above Navajo Dam
It appears that this section was intended to clarify the language
in the original legislation, but the original language is left in the
bill, which may lead to some confusion. Also, the additions that are
provided in the section don't necessarily clarify how shortages are to
be determined or apportioned. One of the Authority's primary concerns
regarding this settlement is the potential for increases in shortages
and who participates in the available supply when shortages are shared.
The Authority would like to work with everyone involved to develop
language that clarifies who participates in the available supply, how
shortages are to be calculated, and specifically limiting the ability
to add more shortage partners in the future.
Section 102(b)(d)(1)--the term ``normal'' diversion requirements is
used in describing the method of apportionment of water. It is not
clear in the paragraphs following what ``normal'' diversion
requirements mean except for the San Juan-Chama project, which provides
a definite figure.
Section 102(b)(d)(1)(A)--it is not clear who ``contractors'' are in
this section and it appears that the language should clarify that the
diversion requirement is either the normal diversion requirement or in
accordance with cropping plans prepared, whichever is lower.
Section 102(b)(d)(1)(B)--if we know who and what the water delivery
contracts are, they should be specified in the legislation rather than
referred to in general language so as to avoid confusion in the future
and to provide certainty for those contracts that are part of the
sharing of shortages.
Section 102(b)(d)(3)--this new language allows the State to
arbitrarily reduce the amount of water for Navajo contractors and the
San Juan-Chama project to meet the Upper Colorado River Basin Compacts.
The State of New Mexico has stated on a number of occasions that they
have the ability to limit diversions under State law to meet compact
requirements. In addition, this provision is unconstitutional because
this provides the state the opportunity to avoid priority
administration by arbitrarily deciding to reduce diversions by only
some entities and not others. The Navajo Reservoir and San Juan-Chama
contractors are not the only uses of the basin and should not be
singled out to meet compact obligations nor pay the price for over-
diversions by others. This language does not appear in the Jicarilla
water rights settlement nor any other settlement and does not belong in
this legislation. It should be deleted.
Section 102(b)(e)(1)--this language attempts to prioritize how
shortages are allocated, but could also be read to say that this is the
order in which entities get water. This should be clarified to meet the
intent that Arizona, aquifer storage and recovery, etc., are the lowest
priorities.
Section 102(b)(e)(3)(g)--this section gives the Secretary the
ability to revise a shortage, but it is unclear how water is to be
physically administered. For example, if the early runoff predictions
are low and a shortage percentage is applied during spring runoff and
later in the summer months rainfall allows for removing the shortage,
how can the San Juan-Chama project increase diversion given the bypass
flow requirements? In other words, the San Juan-Chama project could
suffer a shortage because of early runoff predictions while others
don't suffer a shortage when intermittent rainfall allows for increased
diversion later in the year and San Juan-Chama is not allowed to
increase diversions due to bypass flow requirements.
Section 102(b)(e)(3)(h)--the Authority advocates that a sharing-of-
shortage agreement between the parties be developed and approved such
that the Secretary has specific direction as to how and when to apply
shortages. This would simplify this difficult situation and would
provide certainty to all of the parties about how and when shortages
are to be applied.
Section 303--Delivery and Use of Northwestern New Mexico Rural Water
Supply Project Water
Section 303(b)(3)--the ability to increase allocations is very
troubling as additional uses from the Navajo Reservoir will obviously
increase the likelihood of shortages to other contractors including the
San Juan-Chama project. Why would the new users and contractors for the
reservoir have the right to increased allocations when other
contractors do not have the same ability? This should be clarified.
Section 307--San Juan River Irrigation Projects
Section 307(a)(1) and (2)
Under Section 11, paragraph (a) of Public Law 87-483, the water
requirements for the existing Fruitland, Hogback, Cudia and Cambridge
Indian irrigation was limited to a total amount of irrigation of 11,000
acres. These two new sections increase that amount to more than 12,200
acres of land, thereby increasing the amount that is not subject to
sharing of shortages. We assume that the original language would govern
the amount for sharing of shortages, but this should be clarified.
Section 401--Agreement
Section 401--it is unclear whether this legislation defines the
Navajo Nation's water rights or if there are additional documents that
supplement their right. If in accordance with Section (a)(1), this
legislation governs over other agreements, court decrees, etc., then we
would suggest that this legislation be amended to avoid future
confusion.
Section 401(b)(1)(b) and (c)--this is the same comment as previous
as it relates to how sharing of shortages are to be calculated. Which
is the correct figure and how is it to be used for determining
apportionments?
Section 401(f)(2)(iv)--it is unclear what happens to the agreement,
sharing of shortages, etc., if the agreement is null and void. If
titles I and III are void, does that also void the authorization in
Public Law 87-483? Does the acreage for Fruitland, etc. remain at
11,000 acres? It seems that clarification is needed to provide
direction about what happens in the event that titles I and III are
void.
additional comments
1. In earlier drafts of the legislation, the Authority
expressed concerns about protecting the use of San Juan-Chama
water in the Rio Grande under Public Law 108-447 (2004). We
would like to ensure that nothing in this settlement affects
that legislation.
2. The Authority, other San Juan-Chama contractors and the
State of New Mexico have expressed concerns about how
efficiently the San Juan-Chama project is being operated. The
Secretary of Interior should be directed to efficiently operate
the San Juan-Chama project to maximize diversions on the San
Juan River that are allowed under Public Law 87-483. The
impacts from any future reductions in San Juan-Chama diversions
as a result of this settlement could be significantly reduced
by requiring the Secretary of Interior to maximize the
operations of the San Juan-Chama project. For example, the
Bureau of Reclamation UC Regional Director arbitrarily
increased the bypass flow requirements for the Little Oso
diversion in 1977 which had the effect of reducing firm yield
by 400 acre-feet per year. There are other operational issues
that affect the project which should be examined and reported
to the San Juan-Chama contractors.
3. The Bureau of Reclamation has produced many different
hydrologic analyses of the available water supply for San Juan-
Chama project diversions. The most recent average annual
diversion for the San Juan-Chama project as shown in the
Bureau's Hydrologic Determination signed by the Secretary of
Interior states that 105,200 acre-feet would be available on an
average basis. It is not clear whether the Draft 1999 Hydrology
Report to examine the San Juan-Chama Firm Yield used that
figure or something higher or lower. It is critical that the
hydrology that the Bureau is using on the San Juan river match
the figures used by the Bureau in the Rio Grande. This is very
important as the State and others are negotiating other Indian
and non-Indian water rights settlements based on the
availability of the 2,990 acre-feet of uncontracted-for-water.
The question is whether the revised hydrology shows whether the
2,990 acre-feet is really available or whether that use will
cause shortages for other San Juan-Chama contractors.
4. The two legislative acts, the Settlement Act and Senate
1171, are supposed to complement each other as they relate to
Navajo water rights. There is differing language between the
two Acts as to how available supplies will be calculated and
how shortages will be allocated. The two Acts should use the
same language or be merged into one Act to avoid discrepancies.
I would like to thank the members of the Committee for taking the
time to hear the Authority's input on behalf of the community we serve.
The Chairman. Thank you very much.
Thank you all for your excellent testimony. We do have to
take another short recess because of the ongoing vote and we'll
be right back to ask a few questions.
[Recess.]
The Chairman. OK.
Again we apologize for another interruption. Let me start
with State Engineer D'Antonio and ask you to comment on Mr.
Guenther's testimony. As I understand the position of the State
of Arizona, it objects to S. 1171 for three reasons. No. 1, the
Navajo Nation has ongoing litigation with Arizona concerning
the Colorado River in Arizona and it wants to put off the New
Mexico settlement until it settles those issues. I believe
that's the first objection.
No. 2, Arizona believes its interests are being
disadvantaged by New Mexico using its full compact entitlement
to the Colorado River.
No. 3, as I understand, is that provisions in the bill need
to be revised to more correctly address inconsistencies with
the law of the river. I was going to just ask you, John, to
give us your view on those objections as to whether you take
issue with those.
Mr. D'Antonio. Mr. Chairman, thank you. I do take issue
with some of the objections brought up by the State of Arizona.
Know the, I feel that they're unreasonable in that the New
Mexico settlement, this legislation does not prejudice them in
any way and neither does New Mexico's use of our Upper Basin
apportionment. We're using that Upper Basin apportionment in
the Lower Basin of New Mexico. It's within our State boundaries
and we think that's something we're entitled to.
The, you know, the construction, the settlement also would
authorize the construction of a pipeline to deliver water to
Window Rock, Arizona, but it doesn't require that. So, and it
doesn't specify what water should be used. So again, we feel
like the New Mexico settlement doesn't prejudice Arizona
regarding how to structure its settlement and really leaves the
door open for them to be able to do that.
We feel like we do need to settle our--it's a State issue
with respect to settling our water rights issues in New Mexico.
The Arizona issues could take years. We have, you know, half
of, half or 40 percent of the 80,000 residents on Navajo Nation
don't have drinking water in New Mexico and it's really urgent
that we get a jump on this as quickly as we can.
Senators, I think, you know, I really like your comments
early on and I think the process that, that the administration
suggested earlier may be too lengthy for us to kind of follow
through with the administration's process. You know, if our
delegation's ready to go with legislation, we're all for it to
move it along. So, I just think we are, we do have issues with
all of Arizona's statements.
We actually, and maybe let me expand a little bit further.
We did introduce some language in 303 G of the legislation,
which we felt would specify that the water used by the project
of New Mexico, again being part of New Mexico's Upper Basin
apportionment, some of the language that Arizona wanted instead
would cause problems with other basin States within the seven
basin arena. So, for those reasons we refute Arizona's
comments.
The Chairman. Well, thank you very much.
We've just been notified they've started another vote, so
this is not a good day for us as far as this hearing. I think
I'll just ask one or two more questions quickly and then defer
to Senator Domenici for his questions. Then we'll conclude the
hearing before we go vote and submit more questions to you in
writing.
But, let me ask Patty Lundstrom, are you confident the city
of Gallup can afford the 25 percent cost share that is called
for in this, in this legislation if we are able to pass this
bill?
Ms. Lundstrom. Thank you, Mr. Chairman. I believe that the
city stands behind the 25 percent cost share. We've already
started to talk about innovative financing and I believe, Mr.
Chairman and Senator Domenici, between innovative city
financing and the State of New Mexico's Water Trust Fund and
our Indian Water Rights Fund that we set up through the New
Mexico legislature that we'll be able to come up with that cost
share.
The Chairman. Let me ask one other question of President
Shirley, and also Patty Lundstrom. Obviously, one of my
objectives, I think one of Senator Domenici's objectives from
the beginning on this was to try to provide some type of
sustainable water supply for the city of Gallup, in addition to
meeting the water needs of the Navajo people, which clearly is
a priority. I know there was recently something in the
newspaper in Gallup reporting that one of the committees of the
Navajo Council had rejected a Memorandum of Understanding with
Gallup and with the Jicarilla Nation that related to this. Are
we confident that we can work out any disagreements between the
Navajo Nation and the Jicarillas and the city of Gallup so that
we don't have problems, if we're able to pass this legislation,
in getting everyone's water needs addressed?
President Shirley, did you have a view on that?
Mr. Shirley. Certainly Senator Bingaman and Senator Pete
Domenici. Sir, I'm very confident that we can work things out
between the Navajo Nation, the city of Gallup and the
Jicarilla-Apache Nation. I had two honorable legislators from
the Navajo Nation Council sitting on the, one sitting on the
Budget and Finance Committee Chairman, Lorenzo Bates. He's here
with me.
Mr. Bates. Gentlemen.
The Chairman. Welcome.
Mr. Shirley. Then the honorable Mr. George Arthur, who is
Chairman of the Resources Committee. These are the two
gentlemen sitting on the Inter-governmental Relations
Committee. They have redrafted the MOU such that, it's actually
just calling for a working together to get at a water supply
for the Gallup, city of Gallup. Working together, like we have
been, we will get there. I'm very confident.
The Chairman. Well, we appreciate that reassurance because
I would certainly hate for us to go through this effort and
pass legislation and then find that there's still a need out
there that hasn't been adequately addressed. That would
certainly not be ideal.
Ms. Lundstrom, did you have any comment on that?
Ms. Lundstrom. Mr. Chairman and Senator Domenici, my direct
experience has been positive with many of the Navajo elected
officials. I have been in communication with the city of Gallup
and I understand that the Memorandum of Understanding is moving
forward, that they've all agreed to continue working on it as
quickly as possible. I just believe that this hearing
committee, Mr. Chairman and Senators, is that we've gone
through much and so many kinds of obstacles that is just one of
many that we'll be able to work through.
The Chairman. Thank you very much.
Senator Domenici.
Senator Domenici. Senator Bingaman, you hit the nail right
on the head. It will serve very little for us to pass this and
then not find that, or find that the Gallup arrangement didn't
take place. I'm going to add this one and ask you about it,
President Shirley, and/or that water pipeline, the big one will
be there, but we won't have an infrastructure to deliver it.
This project and its dream was to put the big pipelines
down so that where we have thousands of acres with no water,
you would have major trunk lines. But, that won't serve the
Navajo people if there is not watering facilities, the little
pipelines, actually how you hook the water on.
I personally want to know quickly, Mr. President, do you
intend to, does the Navajo Nation intend to proceed with a plan
to make available the delivery system so the Navajo people
won't be hauling water from these big pipes, but rather the
water will get delivered in a normal way through little pipes
like they do in all cities, with the infrastructure? Is that
going to happen?
Mr. Shirley. That is the plan, absolutely, Senator
Domenici. That is the plan. I venture to say we're going to get
there as planned.
Senator Domenici. Well, I take it----
Mr. Shirley. You wouldn't do us any good and you wouldn't
do my people any good to just have that water line.
Senator Domenici. No.
Mr. Shirley. Water going to the communities, that's the
intention.
Senator Domenici. No, it wouldn't. I want to say that, you
know, we're in control of this legislation up here, but we can
probably finish it in 1 month or 6 months. The one thing I
would like to see and I, Mr. Chairman I'd ask if we could ask
the Navajo Nation to submit this. I would like to see some
evidence of what you're going to do and where you're going to
get the money to provide water. You know, you don't have to
provide it every single acre, but somehow the Navajo Nation has
to think through where we're going to get the resources. Are
you going to charge the people for water? I think we ought to
know that. That's the big one because the water is useless if
that isn't done and I'm not critical, I just have been there
and I'm, that you can wait and fight for 10 years over issues
like this, that's not what we want.
Mr. Guenther, I thought I recognized your name when I saw
you there, but I wasn't sure. Now I kind of know you because
whenever Arizona's involved in this, there you are. You're like
Mr. Steve Reynolds from New Mexico who's gone, but was
everywhere.
I just want to tell you I hope your claims in this are
really good or no good at all. Because we've done too much,
both of us, to help Arizona, in fact, we helped them with a
giant settlement just a couple years ago. It was right when
Senator Kyle wanted it, needed it, and we didn't look for nits
and nats. I hope you do the same for us. I'm not going to ask
you to give away anything, but I am asking you not to think
that we're going to take up, in this committee, frivolous
things just to delay things. It's not going to happen. So, you
better have them right or you better come and tell us we're
your partners like you've been with us here before. That would
be a good thing to have. You want to comment on that?
Mr. Guenther. Thank you, Mr. Chairman and Senator Domenici.
It's good to see you again as well.
We take, we take issues with the Law of the River and the
Colorado River Compact, obviously very seriously. Obviously,
none of us, none of us in any of the seven States would want to
see a breach in that Compact or that Law of the River that
would jeopardize our share of the water. Arizona depends on the
Colorado River for over a third of its annual water supply, so
it's very dear and precious to us. But we also take our
friendship with our neighbors to the east very seriously. We
will do everything we can to work with you to make sure that
our concerns are well founded.
We have a lot of legal scholars. We have probably too many
legal scholars dealing with water river issues, but we will,
again, sit down with Mr. D'Antonio and his staff and Mr.
Connor, your staff and see what we can work through and
resolve, just as we did in that Arizona Water Settlement Act
and dealt with some very difficult issues right toward the end
of that one. So, we look forward to working with you and your
staff.
Senator Domenici. Mr. Chairman, I'm sure we have to leave,
but let me say to Patty Lundstrom and representatives from
Gallup, I'm going to, by coincidence, it's not planned, I'm
going to be in Gallup next week and probably you will be
getting notice that I'd like to meet with COG. I think I ought
to take this opportunity to meet with some of the Gallup
officials just to talk publicly about this obligation they have
to come up with the money or we're doing something that's not
worth, not worth much, you know. We really want Gallup to end
up with water, right.
Ms. Lundstrom. Thank you.
Senator Domenici. Thank you very much, Mr. Chairman.
The Chairman. Well, thank you very much.
Thank you all for your testimony. This has been a little
disjointed with our need to go back and forth to the floor and
vote, but I think we made a good record here and we appreciate
your participation.
Thank you.
[Whereupon, at 4:25 p.m., the hearing was adjourned.]
APPENDIXES
----------
Appendix I
Responses to Additional Questions
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Responses of Joe Shirley, Jr., to Questions From Senator Bingaman
Question 1. In its testimony, the Administration indicates that it
needs to determine what the Navajo Nation's specific goals are for the
settlement.
For the record, please articulate the Navajo goals for the
settlement.
Answer. As we told the federal assessment team and the federal
negotiation team, the Navajo Nation seeks a water rights settlement
that provides:
CERTAINTY.--Certainty as to what our water rights are,
including the water rights for the Navajo Indian Irrigation
Project which were not fully described in the 1962 Act. To
fully develop a permanent homeland for the Navajo People
requires knowing the full extent of our water resources.
WET WATER.--A ``paper'' water right does not benefit people
who must haul their drinking water. The Navajo Nation is
forgoing a large paper water right in exchange for a smaller
paper water right, conditioned on the wet water development
outlined in the settlement legislation, including the Navajo
Gallup Project.
PEACE.--We want a settlement that will reduce the
possibilities of future conflicts with our neighbors. Our
settlement is structured to create partnerships between the
Navajo Nation and its neighbors--the City of Gallup, the
Jicarilla Apache Nation, and the City of Farmington, which has
passed a resolution in support of the settlement.
Question 2. The Administration's testimony, as well as other
testimony submitted for the record, indicate that there might be
cheaper and more efficient means to deliver water to the Navajo
Reservation.
Has the Navajo Nation considered other alternatives to supplying
water to the eastern part of the Reservation? If so, what problems
exist with those alternatives?
Answer. The Bureau of Reclamation, in the Planning Report and Draft
Environmental Impact Statement for the Navajo-Gallup Water Supply
Project (DEIS), identified various alternatives, including additional
groundwater development, water conservation and water re-use. The DEIS
concluded that these alternatives would not be sufficient to provide a
sustainable, reliable water supply. See: DEIS at IV-4. Wherever
groundwater can be utilized, the Navajo Nation plans to utilize those
resources and S. 1171 includes authorization to develop conjunctive
groundwater wells wherever possible to reduce costs. However, the
analysis in the DEIS confirms that groundwater will not provide a
sustainable long-term solution. The Navajo people have already
perfected water conservation and water re-use through generations of
water hauling. While water hauling ensures that water is conserved and
re-used to the maximum extent possible, water hauling is not sufficient
to provide the Navajo people with an adequate and reliable water
supply.
Question 3a. Part of the Administration's reasoning for objection
to S. 1171 is that it claims that the likely cost of the settlement
exceeds the Federal government's underlying liability. This issue has
not been discussed much because so much of the focus has been on the
critical need for water on the Navajo Reservation.
Does the Navajo Nation believe that the Federal government has
significant liability associated with the Navajo water rights claims?
If so, can you generally summarize the basis for that liability? Are
the Navajo water rights claims in the underlying adjudication
significant enough to potentially displace non-Navajo water users in
the basin?
Answer. As you correctly point out, this settlement is about
addressing basic human needs; it is not about ``counting beans'' by the
federal bureaucracy. The federal government's trust responsibility and
treaty obligations are difficult to quantify in dollar terms, but we
are prepared to do so.
We will provide the Administration with a more detailed analysis
outlining how the federal government would be subject to significant
liabilities in the event this settlement fails. We believe that the
United States has substantial exposure for liabilities to the Navajo
Nation for failing to protect our water rights, for failing to enjoin
others from using water to the detriment of the Navajo Nation, and for
encouraging non-Indian water development within the San Juan River
basin. In addition to liability to the Navajo Nation, the United States
faces potential liability not just to the Navajo Nation but to many
other parties within and outside the San Juan River basin. Under almost
any litigation outcome, the United States would be exposed to
significant liability.
In the event that the settlement fails, and the Navajo Nation were
forced to litigate its water rights claims, the Navajo Nation would
claim all of the water necessary to ensure a permanent homeland for the
Navajo people. Such claims would include not only past and present
water uses, but additional water for mining and energy development,
domestic and municipal uses, commercial and industrial development, and
additional irrigation. Experts working for the Navajo Nation and the
United States have identified a number of water claim scenarios that
range from modest to substantial claims. We believe that any litigation
outcome would award the Navajo Nation more water than they would
receive by way of the settlement. The water awarded to the Navajo
Nation in this settlement is surely less than water that the Nation
could obtain through litigation. (The water in the settlement is
essentially: (1) water for existing Navajo irrigation projects at
Hogback and Fruitland; (2) water for the Navajo Indian Irrigation
Project promised by the 1962 Act of Congress; and (3) about 22,000
acre-feet of ``new water'' for the Navajo-Gallup Water Supply Project.)
Therefore, any litigation displaces existing water users and
potentially creates federal liability with respect to those users.
With the settlement the State of New Mexico will be extremely close
to full water development under its compact apportionment. Therefore,
any water the Navajo Nation would obtain over and above the water
specified in the settlement threatens existing water users and
jeopardizes the ability of New Mexico to stay within its compact
apportionment. It does not take a significant claim by the Navajo
Nation to achieve this result. For example, the settlement agreement
limits Navajo acreage at the Hogback and Fruitland irrigation projects
to 12,165 acres, but the Congressional record on Public Law 87-483
makes reference to a possible 26,000 acres of irrigable land at just
these two sites. See: Senate Report No. 2198. The water for this
additional acreage would have to either come from existing water users
or from water in excess of New Mexico's compact apportionment. In
addition, experts for the Navajo Nation and the United States have
identified additional irrigable acreage upon which substantial claims
could be based. Even a modest award of additional acreage would cause
disruption of existing water uses.
Recent decisions in various water adjudications confirm that Indian
tribes are entitled to all the water necessary to make their
reservations livable as permanent homelands. Such water uses include
water for municipal, commercial and industrial purposes. The Navajo
Reservation has a substantial population and continued population
growth can be expected if the Navajo Nation had sufficient water
resources. The municipal water in the settlement agreement is based on
a projected forty (40) year projection. If the Navajo Nation were to
litigate its claims, it would seek a supply for a much longer period of
time. In addition, the Navajo Nation possesses an abundance of natural
resources including coal, oil and gas, and uranium. The Navajo Nation
claims the waters necessary to develop these resources, including water
for energy generation.
Even a modest award of water to the Navajo Nation would prove
disruptive to existing water users, including upstream irrigation uses,
water diversions for two coal fired generating stations, and the water
for the municipalities in the basin. In addition to impacts on these
run-of-the river diverters, in order to meet additional downstream
Navajo uses, water that would have otherwise been stored at Navajo
Reservoir and in the Animas-La Plata Project would be bypassed creating
potential shortages to the various federal interests that rely on this
water including the Animas-La Plata Project, the Hammond Conservancy
District, the Jicarilla Apache Nation, and the San Juan-Chama Project.
With respect to the San Juan-Chama Project, it provides a portion of
the water supply for the cities of Albuquerque and Santa Fe, and
Project water is proposed as the supply necessary to settle the water
rights claims of Taos Pueblo and the four Pueblos in the Aamodt
litigation. By any measure, the United States cannot afford to let the
settlement fail, even if the Navajo Nation were only to receive a
modest amount of additional water.
The scenarios for even greater exposure could accrue if the Navajo
Nation were successful in bringing a more substantial claim in the
adjudication. Numerous law review articles have been brought concerning
the potential Navajo claims. These articles suggest that were the
Navajo Nation to prevail on its claims, the implications on the entire
Colorado River water system could be devastating. For example, some
commentators refer to the unquantified rights of the Navajo Nation as
posing a ``hypothetical shock'' to the Colorado River. Allen V. Kneese
and Gilbert Bonem, Hypothetical Shocks to Water Allocation Institutions
in the Colorado Basin, NEW COURSES FOR THE COLORADO RIVER: MAJOR ISSUES
FOR THE NEXT CENTURY at 97 (Weatherford & Brown, eds. 1986). See also
William Douglas Back & Jeffrey S. Taylor, Navajo Water Rights: Pulling
the Plug on the Colorado River?, 20 NATURAL RESOURCES JOURNAL 71, 74
(1980) (``If Navajo Winters rights ever are adjudicated, the potential
award is staggering.'') Therefore, the proposed settlement not only
benefits the Navajo Nation and the State of New Mexico, but the entire
Colorado River system. If the settlement fails, the potential liability
of the United States for disruption of water uses within the Colorado
River system is too massive to calculate.
Question 3b. If there is no settlement, will the Navajo Nation
challenge the water rights claims of other parties in the adjudication?
Has that already occurred?
Answer. In the event that there is no settlement, the Navajo Nation
would claim all of the water in the river as necessary to satisfy its
homeland needs, including water for municipal, commercial, industrial,
mining, livestock and agricultural uses. Because the Navajo Nation
lands are largely downstream of all other water users, the upstream
water uses would be aggressively challenged.
The State Land Office recently made a claim for reserved water
rights in the San Juan River basin. The Navajo Nation, together with
several major claimants and the New Mexico State Engineer, has
challenged such claims.
Question 4. The State of Arizona objects to moving S. 1171 until it
has a chance to negotiate a settlement on Navajo and Hopi water rights
claims in Arizona. Your testimony indicates that the Navajo Nation does
not view a settlement of those claims as imminent.
What is your perspective on how a delay in moving S. 1171 might
impact the negotiations? Would it help facilitate a resolution of
issues or slow the process down even further?
Answer. The Navajo Nation is committed to good faith water rights
negotiations with the State of Arizona. In the late 1990's we engaged
in serious settlement discussions with the Arizona water users
concerning the Navajo Nation's water rights in the Little Colorado
River basin. Those discussions broke down, but were revived only after
the Navajo Nation filed its lawsuit in Navajo Nation v. United States
concerning Navajo claims to the mainstream of the Colorado River in the
Lower Colorado River Basin in Arizona.
Although we are negotiating in good faith, we are not certain
whether a negotiated settlement Arizona is even possible, let alone
imminent. We have a settlement with the State of New Mexico because it
is based on identifying and satisfying the needs of the Navajo people
in New Mexico. We are disappointed that the Arizona testimony talks
about the need to resolve litigation with the Navajo Nation, but no
acknowledgment of the real needs of the Navajo Nation to obtain
sufficient water rights to create a permanent homeland. And, continue
to be frustrated in our settlement efforts with the Arizona parties
because there is no real discussion of the needs of the Navajo Nation.
Instead all discussions with Arizona focus only on the limited
resources the Arizona parties are willing to offer. Frankly, we are
unsure of whether a settlement is possible with Arizona given that the
state parties insist that a Navajo settlement fits within the
parameters of the Arizona Water Settlements Act which contains only a
limited amount of water and money.
If a settlement with Arizona can be achieved without compromising
or delaying the New Mexico settlement, then we would be happy to have a
more comprehensive settlement, but the New Mexico settlement is crafted
in a manner that does not require resolution of the Navajo water rights
issues with the State of Arizona, and Arizona's ability to reach a
settlement with the Navajo Nation will not be impaired if a New Mexico
settlement moves forward separately, Frankly we believe that Arizona is
simply attempting to leverage a settlement with the Navajo Nation that
fails short of meeting the Navajo Nation's needs, by demanding that the
New Mexico settlement include a partial settlement with Arizona.
Requiring a settlement with Arizona gives too many parties without
an interest in New Mexico, including the Hopi Tribe, and various non-
New Mexico interests, veto power over our New Mexico settlement. In
short, it is our view that linking the New Mexico settlement to the
Arizona negotiations will only serve to slow the Arizona negotiations
even further.
Question 5. The Gallup Independent recently reported that the
Intergovernmental Relations Committee of the Navajo Council rejected a
proposed MOU with Gallup and the Jicarilla Apache Nation outlining a
process to help Gallup secure a water supply for its share of the
Project. Obviously, that's a strong concern if the partners to the
Project are not working cooperatively with each other.
What was the basis for the Committee's action and is there a
process underway to resolve this issue to everyone's satisfaction?
Answer. The Intergovernmental Relations Committee (IGRC) consists
of the chairs of each of the eleven standing Committees of the Navajo
Nation Council. As the President of the Navajo Nation, I am not a
member of the IGRC. I have discussed the Committee's actions with the
Chairperson of the Resources Committee, Delegate George Arthur. The
Resources Committee is responsible for overseeing the management of the
natural resources of the Navajo Nation.
The Resources Committee unanimously approved the MOU in May; at a
meeting where Chairperson Arthur was not present. The MOU was then
presented to the IGRC in June. Subsequently, Chairperson Arthur was
concerned that some of the language in the MOU created the impression
that Project facilities--even those currently being constructed with
State funding--could not deliver water to Navajo users until a water
supply for Gallup for the San Juan Lateral of the NGWSP was identified.
As you know, there are several phases of the Cutter Lateral and that
Navajo/Gallup Regional System which are currently being constructed.
The troubling language of the MOU has been deleted.
The IGRC also expressed that although the staffs from the City of
Gallup, the Navajo Nation and the Jicarilla Apache Nation had worked
extensively on drafting the MOU, there have not been any recent
meetings among the political leadership of the three entities. Because
of the of the recent changes in leadership at the City, the Jicarilla
Apache Nation, and among the eighty-eight delegates of the Navajo
Nation Council, the IGRC felt very strongly that meetings among all the
leaders were critical to ensure that the next steps in this process
will be successful.
I am pleased to report that since the June IGRC meeting a process
has been developed to address these concerns. On June 22, Chairperson
Arthur met with the City of Gallup and assured that the MOU would be
put into place. On June 25, Chairperson Arthur met with Jicarilla
Apache Nation (JAN). JAN indicated that it is supportive of the
settlement and is still engaged in negotiations with the City of
Gallup. On July 11, a meeting was held among all three parties. At that
meeting, a schedule was developed to finalize the MOU and Chair Arthur
committed to getting the MOU processed by mid-August.
Response of Joe Shirley, Jr., to Questions From Senator Domenici
Question 1. President Shirley, the Navajo-Gallup Water Supply
Project would provide the Navajo Nation, the Jicarilla Apache Nation,
and the City of Gallup with a long-term water supply. I was very
disappointed to learn that the Navajo Nation Council's
Intergovernmental Relations Committee recently rejected a MOU that
would establish a framework for acquiring water for the City of Gallup.
I have made it clear that I will not support a settlement that does not
ensure a water supply for Gallup.Are you aware that nearly 30 percent
of Gallup residents are Navajos?
Answer. Yes, according to the 2000 Census data 36 percent of the
Gallup residents are Native American. Furthermore, more than 85 percent
of the students at the public schools within the City's boundaries are
Navajo.
Question 2. Do you share the views of the Intergovernmental
Relations Committee?
Answer. The Navajo Nation Council overwhelmingly approved of the
Settlement Agreement. I support the position of the Navajo Nation
Council on the Settlement.
The Intergovernmental Committee (IGRC) is a committee of the
chairpersons of each Standing Committee of the Navajo Nation Council
for a total of eleven members with the Speaker of the Council sitting
as the Chair. It appears that the positions of the Delegates on the
IGRC reflect their personal views and not the views of the Council. In
addition, it appears that at least one Delegate was concerned with
language in the Memorandum of Understanding the created the impression
that Project facilities, even those currently being constructed, would
not be able to serve Navajo water users until a number of complicated
water arrangements are resolved. I do agree that Navajo water users
should not be prevented from benefiting from the infrastructure
currently under construction.
With respect to identifying a water supply for the City of Gallup,
we all understand that this important issue needs to be resolved for
the Project to move forward. I appreciate this need and will do what I
can to live up to the Council's commitment to the Settlement Agreement.
Question 3. How do you plan to ensure that a water supply is made
available for the City of Gallup?
Answer. I am committed to finding a water supply for the City of
Gallup. Since the June IGRC meeting a process has been developed to
address these concerns. On June 22, Chairperson Arthur met with the
City of Gallup and assured that the MOU would be put into place. On
June 25, Chairperson Arthur met with Jicarilla Apache Nation (JAN). JAN
indicated that it is supportive of the settlement and is still engaged
in negotiations with the City of Gallup for a long-term water lease. On
July 11, a meeting was held among all three parties to discuss all
water leasing options in the MOU, including leases between the Navajo
Nation and the City of Gallup. At that meeting, a schedule was
developed to finalize the MOU and Chair Arthur committed to getting the
MOU executed by the middle of August.
Question 1. The Draft Environmental Impact Statement for the
Navajo-Gallup Water Supply Project does not include distribution
systems.
How do you plan to distribute the water supplied by the Navajo-
Gallup Water Supply Project?
Answer. The Navajo Gallup Water Supply Project is guided in part by
a Steering Committee that includes the Indian Health Service, the
Navajo Department of Water Resources, the City of Gallup, the Navajo
Tribal Utility Authority, the Bureau of Reclamation, the Bureau of
Indian Affairs, the Jicarilla Apache Nation, and the Northwest New
Mexico Council of Governments. One of the primary technical objectives
of this group is to make sure the Project as it is planned and
developed meets the real needs of the people in the region. This
Steering Committee is coordinating the programmatic resources as they
become available as much as possible. For example, to date the State of
New Mexico has committed approximately $17 million in the
infrastructure that will convey water from the Cutter Lateral through
the local Navajo Trial Utility Authority public water systems, and
approximately $7 million in the infrastructure that will regionalize
the public water systems in the Gallup area. In addition, the Indian
Health Service, through its P.L. 87-121 program, is spending resources
to meet the distribution needs of the Navajo Nation's drinking water
infrastructure and will continue to do so.
The Navajo Gallup Water Supply Project will convey water to a
service area that is largely served by the Navajo Tribal Utility
Authority (NTUA). NTUA operates more than 90 public water systems on
the Navajo Nation with more than 30,000 customers. As proposed in the
Environmental Impact Statement appraisal level planning reports, the
water conveyed from the San Juan River through the Project will be
delivered to the NTUA's systems at more than 20 locations. At each
location a tank and booster pump will ensure that the treated water can
be further conveyed by NTUA through the current distribution network.
As these plans are further refined through feasibility and final design
level studies, every effort will be made to fully incorporate the
existing NTUA infrastructure into the Project.
Question 2. To what extent will the Navajo-Gallup Water Supply
Project reduce water hauling on the Navajo Reservation in New Mexico?
Answer. Many of the 80,000 Navajo men, women, and children in the
Project service area presently do not have clean potable drinking water
delivered to their homes; they must haul water, in some cases over many
miles, for drinking and cooking. Although construction of the Project
will not necessarily eliminate all water hauling on the reservation,
the Project will allow the Indian Health Service to expand distribution
systems to provide potable water delivery to more homes and would
create growth corridors within the Navajo Nation where future
communities can be built with ready access to roads, electricity and
potable water.
Question 1. Mr. President, you state in your testimony that the
Navajo-Gallup Water Supply Project ``represents a critical component of
the Navajo Nation's economic strategy.''
Please explain the economic development strategy and how the
Project will further economic development for the Navajo Nation.
Answer. The Navajo Nation adopted the Water Resource Development
Strategy for the Navajo Nation in July 17, 2000. That document
concludes that ``the lack of a reliable and affordable potable water
supply stifles economic growth throughout the reservation'' and that
``[t]he lack of infrastructure, the lack of economic development and
the sustained poverty are closely connected.'' Without developed water
infrastructure economic development infrastructure is impossible. The
Project will provide a backbone of water infrastructure for the Eastern
portion of the Navajo Reservation.
The Navajo Nation has identified economic development growth
centers through the Nation, such as Shiprock, Crownpoint, and Window
Rock. They are large population bases which have the potential to
benefit from an economy of scale in infrastructure development. The
Project will deliver in such a way to stimulate economic development in
these growth centers.
Question 2. What health benefits will the Navajo-Gallup Project
bring to the Navajo People?
Answer. For those families who will be relieved of water hauling,
there should be a decrease in waterborne communicable diseases and
other communicable diseases including Hepatitis A, Shigella, and
Impetigo are associated with the limited hand washing and bathing
practices often found in households lacking adequate water supplies.
``The Navajo-Gallup Water Supply Project will ultimately provide water
to over 100,000 people who would otherwise haul water, for an estimated
total savings in medical expenses exceeds $318 million over the life of
the project.'' See Economic Benefit/Cost Analysis, Navajo Gallup Water
Supply Project, Dornbusch Associates, April 11, 2006, found at Appendix
D of the Draft Environmental Impact Statement for the Navajo-Gallup
Water Supply Project, March 2007.
Question 1. According to the Draft EIS for the Navajo-Gallup Water
Supply Project, the Navajo Nation would receive roughly 27,000 acre
feet of water per year.
Do you believe this amount is adequate to meet the Navajo Nation's
long-term needs?
Answer. The design criteria used in the Draft EIS for the Navajo-
Gallup Water Supply specifies capacity of 29,062 acre-feet per year for
the Navajo Nation including, 6410 acre-feet in Window Rock, Arizona.
These capacities are based on a projected forty (40) year demand in the
project service area. Certainly this quantity of water will not be
sufficient to meet the long-term needs; however, if the settlement is
implemented, the Navajo Nation would have 325,670 acre-feet of annual
depletions and the right to put those depletions to any beneficial use,
including municipal and domestic uses.
Question 1. Mr. President, the Navajo-Gallup Water Supply Project
would provide water to the Navajo Nation, the Jicarilla Apache Nation,
and the City of Gallup.
Have you developed any agreements with Gallup and the Jicarilla
Apaches for the operations and maintenance of the Project?
Answer. The MOU between the Project entities contemplates that an
agreement concerning the operation and maintenance of the Project is
required. This agreement will be developed after the MOU is executed.
We anticipate that the Navajo Tribal Utility Authority will have an
important role in operating the Project. We are also looking at various
joint utility options for the Project.
______
Response of Mark Sanchez to Question From Senator Bingaman
Question 1. Your testimony seems to raise a number of concerns with
the settlement that the State seems to think have been addressed.
Do you disagree with the State's analysis? So you believe that you
can work through any remaining issues with the State so that you can
support the settlement?
Answer. Our primary concerns are the hydrologic impact on the San
Juan-Chama project and how shortages are to be calculated and shared.
Given that no formal hydrologic analysis on the impacts to the San
Juan-Chama Project from the settlement has been completed, the
Authority has engaged Daniel B. Stevens to examine the potential for
increased frequency and magnitude of shortages. The Authority will be
pleased to share this information will all parties when the work is
complete. The extraordinary powers granted to the State Engineer
provided in the bill need to be amended out of the legislation or
substantially clarified. The Authority is committed to working with the
State and feels that all of the issues raised can be addressed.
Responses of Mark Sanchez to Questions From Senator Domenici
Question 1. Mr. Sanchez, I appreciate you identifying portions of
the bill that you believe need greater clarification. I look forward to
working with you on these provisions. As you are aware, litigation to
determine Indian reserve water rights has, in some instances, resulted
in large awards for the Indian nations.
Are you concerned that, if litigated, the Navajo Nation's court-
awarded water rights could ultimately result in a reduction of water
diverted by the San Juan-Chama Project?
Answer. The Authority is concerned about anything that could affect
the San Juan-Chama project and understand that the settlement has the
advantage of reducing the uncertainty that comes from litigation and
court-awarded water rights.
Question 2. Do you believe that settling the Navajo Nation's water
rights claims is in the best interests of the Authority and other San
Juan-Chama contractors?
Answer. As stated in our comments, we are concerned about the
frequency and magnitude of shortages and how shortages are to be
calculated and implemented. The Authority would like to work out a
sharing of shortages agreement in parallel with the legislation. We
agree that resolving the Nation's water rights claims and the certainty
that comes with that is in the best interest of the Authority and other
San Juan-Chama contractors.
You raise the concern that, pursuant to Public Law 87-483, the
Secretary of the Interior, before entering into additional contracts at
or below Navajo Reservoir, must make a determination that there will be
``a reasonable amount'' of water for the San Juan-Chama project.
Question 3. Based on your independent assessment, will the new
contracts issued pursuant to this settlement adversely affect the
amount of water provided to San Juan-Chama contractors?
Answer. The Authority's assessment is not yet complete, but the
Secretary and more specifically the Bureau of Reclamation should be
required to address this issue. For example, the Bureau has used
different figures for the amount of water that will be available for
diversion by the San Juan-Chama project. These different hydrologic
analysis and water availability needs to be rectified so that everyone
is clear on what is to be diverted and how much water is available to
divert on an average annual basis. In addition, the Authority supports
adding language that provides for the Secretary to operate the San
Juan-Chama project as efficiently as possible to ensure the maximum
possible yield provided in the legislation. If the Bureau operated the
project as efficient as possible, then the impact from this settlement
will be significantly reduced or eliminated.
Question 4. Do you agree with the assumptions underlying the April
2007 hydrologic assumption signed by Secretary Kempthorne?
Answer. We understand the hydrologic analysis to be a correct
determination on the amount of water available for the settlement as it
relates to New Mexico's apportionment under the Upper Colorado River
Basin Compact. The average amount of water available for the San Juan-
Chama project, however, is different than the amount the Bureau has
used to determine the amount available for contracts from Heron
Reservoir (see previous discussion).
______
Responses of Patricia Lundstrom to Questions From Senator Bingaman
Question 1. The Administration suggests that the Navajo and State
should stop and revisit the goals of the settlement, and consider
whether those goals can be met by alternative and less expensive means.
That would seem to throw away almost 2 decades of work.
What do you think of the Administration's suggestion? Are there
other alternatives out there that the Steering Committee has
overlooked?
Answer. I share the Senator's concern about ``revisiting'' the
goals of the Settlement and of the Navajo-Gallup project, as well as
the preferred alternative that has been so rigorously vetted over
``almost two decades of work.'' Now is not the appropriate time for
Administration officials to be recommending a return to the drawing
boards, in that there has been ample opportunity all along to consider,
negotiate, revise and evaluate all possible alternatives. If there are
better ways to go (``by alternative and less expensive means''), then
it would have behooved Administration officials to recommend specific
alternatives well before the current 11th hour.
If cost-cutting is indeed the issue of the hour, and if the
Administration officials are on a ``mission'' to reduce cost for its
own sake, then our technical partners are primed for further research
and analysis in this regard. It should be noted, however, that the
Navajo Nation and the State of New Mexico, in particular, have been
literally begging the Administration to participate in substantial
dialogue on the project's critical cost parameters, with disappointing
results until this current nexus point.
We believe the selected alternative to be appropriate to meet
project goals, and given the criteria and information from which the
Bureau of Reclamation (BOR) cost estimate was derived, the estimate is
understandable and defensible.
However this does not necessarily mean the project cannot meet its
goals at a reduced price. Although the BOR work has been reviewed by an
independent third party (Boyle 2004) and is currently undergoing an
independent Design, Estimate & Construction (DEC) review process, these
reviews have not--or may not--identify cost-cutting alternatives.
The issue of cost cutting has been the topic of discussion at
countless meetings and conversations of the Project's technical
committee and its members. The general consensus of the committee
members is that considerable cost savings might be achieved through a
value engineering process, whereby alternative pipe materials, bedding
requirements, building materials, design standards, treatment processes
and other project components are analyzed.
Committee members have also discussed taking a third-party design/
build approach to the project. However, this would not fit the standard
BOR model and would require that BOR take a role of project management
& oversight rather than its own internal design/build approach.
With all due respect to the BOR, whose Western Colorado Area Office
staff have served this Project with professionalism and effectiveness,
the technical participants from the Project beneficiary entities have
advocated a more aggressive look at engineering and cost alternatives,
as well as a less bureaucratic and tentative approach to value
engineering than would be suggested by BOR's procedures related to
``appraisal-level'' and ``feasibility-level'' analyses. Some of our
internal technical reviewers have been disappointed that BOR engineers
have not been more interested in following up on various on-the-ground
projects in the region for information on soils and other issues
associated with the particular terrain of this region. Rather, their
sense has been that BOR has been in a conservative, tentative and
protective mode in its design work, as opposed to being motivated to
``build the best and most cost-efficient project.''
It is possible that a shift toward private engineering contracts
under BOR's general oversight may generate designs and estimates that
are more economical, while at the same time realistically meeting
project objectives, given known work done in this region--for example,
to lay natural gas pipeline, as well as the work currently being done
on the local water pipeline projects in the ``Cutter Lateral'' area of
the Project under State funding. Our technical representatives have
expressed confidence in the high-level expertise and experience of, as
well as the quality of work done by, a number of private firms working
in the Four Corners region.
Question 2. You note that it is the City's position that it will
need a high level of Federal funding support for its share of the
project costs.
Can the City afford at least the 25% cost-share for the Project
that is contemplated in the bill?
Answer. The short answer is that the City of Gallup should be able
to plan and carry out a financial strategy that meets the 25% cost
share commitment. However, there are some unique factors to be
addresses and resolved.
On the surface, it appears that Gallup's rate-payers can afford 25%
of Gallup's share of the project costs. However, the economic analysis
work done as part of the Navajo-Gallup EIS leaves out one large
component of Gallup's current and future expense, which is its need to
replace aging infrastructure.
Gallup presently has approximately 71 miles of water distribution
piping installed prior to 1966, which will need to be replaced over the
next 40 years at an estimated cost of $42.4 million. In addition, a
large portion of the remaining 157 miles of pipe currently in service
will be 40 to 60 years old at the time Gallup's cost share becomes due.
Gallup has not stood idly by while its water system deteriorated.
On the contrary, Gallup has always had a relatively vigorous capital
improvement program, and more recently (2005) it leveraged increased
water utility revenue projections to pass $21 million in revenue bonds
($10 million for water and $11 million for wastewater) to address some
of the more critical water and wastewater needs.
It is also important to be mindful of the rising cost of other non-
discretionary household expenses such as wastewater, power, solid
waste, natural gas and fuel when considering the ability of Gallup's
rate-payers, a large segment of whom are at or below poverty level, to
pay higher costs for this utility.
Due to Gallup's aggressive capital improvement program and steeply
inclining rate structure (well above the state average for the average
user and second only to Santa FE for those in the top tier), Gallup's
bonding capacity and rate-payers' capacity may be at their limits.
Nevertheless, to proactively deal with the water financing
challenge, Gallup is currently re-evaluating its financial position and
developing its long-term strategy with respect to the Navajo-Gallup
project. One key piece of the strategy will undoubtedly be investment
by the State of New Mexico in a portion of Gallup's share of the
project costs. City, County, Tribal and COG representatives met in
Gallup on July 9th with staff from the offices of the Governor and the
State Engineer, and I was very encouraged by the spirit of
collaboration in this regard. I will be working with the Governor's and
State Engineer's Offices and with the State Legislature on a mechanism
to specifically include financial commitments to Gallup over time, such
as via amendment or regulatory stipulation to the Indian Water Rights
Settlement Fund and the Water Trust Fund.
With regard to the City's own commitment to the project cost share,
several options are currently under consideration, including:
inviting the financial partnership of the County of
McKinley;
potential utilization of local taxation and bonding options;
earmarking a portion of utility revenues for a project
sinking fund, to be accelerated in the years 2014 and 2019 when
current long-term bond debts are retired;
user surcharges, possibly ramped upward over time; and
systematic increases in water rates over time.
It is the City's plan to provide a preliminary report on its
financial strategy to Senator Domenici on the occasion of his visit to
Gallup on August 15th, 2007.
However, until such time as factors such as the cost of water,
final OM&R (operations, maintenance & replacement) and capital costs,
and construction scheduling are determined, it will be difficult for
Gallup to determine what its ultimate financial strategy will be and
what its citizens can afford.
In any event, the approach being pursued is that, in partnership
with the State of New Mexico and McKinley County, the City will design
and implement a strategy to meet the 25% local cost share.
Question 3. The Gallup Independent recently reported that the
Intergovernmental Relations Committee of the Navajo Council rejected a
proposed MOU with Gallup and the Jicarilla Apache Nation outlining a
process to help Gallup secure a water supply for its share of the
Project.
How has this action affected Gallup's perceptions of the Project?
Is the situation being addressed so the issues with the MOU will be
resolved?
Answer. City officials understand that these kinds of agreements
have to go through an extensive consultative process within the Navajo
Nation bureaucracy, and it is not uncommon to see concerns raised in
the parties' respective legislative forums, even after literally
hundreds of technical, legal and jurisdictional details have been
discussed and negotiated by experts and officials from all parties
concerned.
Some of the Navajo legislators' comments reported in the local
press reflect long-lingering sentiments still held by various elements
of that Nation's elected leadership. On the other hand, the majority of
Navajo leaders, including President Shirley himself, appear to have
seen the positive evolution in the relationship between the City of
Gallup and its tribal neighbors, to be aware of the cooperative nature
of the ``Gallup Regional System'' projects, and to be convinced that
cooperation and partnership is the best policy going forward--
especially in sharing the resources of the region's ``water commons.''
City of Gallup and tribal officials from the Navajo and Jicarilla
Apache Nations have met twice recently to discuss this issue. In step
with Navajo Nation President Joe Shirley per his June 27th testimony,
the City of Gallup is likewise confident that the issues with the MOU
can and will be resolved.
Responses of Patricia Lundstrom to Questions From Senator Domenici
Question 1. Ms. Lundstrom, as you point out in your testimony, the
Navajo Nation, the Jicarilla Apache Nation, and the City of Gallup
would all be served by the Navajo-Gallup Water Supply Project.
What operational structure do you propose to ensure that the
Project is maintained and operated properly so that all Project
beneficiaries receive water from the Project?
Answer. I would propose formation of a multi-jurisdictional
authority, perhaps similar in nature to the model adopted by the
Bernalillo Water Authority. We are in the process of researching models
and preparing for consultation with our Steering Committee entities.
Under funding appropriated by the 2006 New Mexico State
Legislature, the Steering Committee (with staffing by the Council of
Governments) is currently considering operational structure
alternatives, with no conclusive recommendations to date. Although a
secondary issue during the EIS planning stages, this question is now
emerging as an important item to be addressed by the Project parties.
The cooperative history of the Steering Committee entities has set a
strong foundation for future planning and problem-solving in this
arena.
Clearly, residents of the Navajo Reservation stand in primary
position to reap the Project's benefits, while another substantial
Navajo population will be among the City of Gallup's project
beneficiaries (possibly approaching 50% of the City's population during
the course of the Project). Additionally, it is the settlement of the
Navajo Nation's water rights claims in the San Juan River Basin that
will serve as the primary vehicle for the authorization and financing
of the Navajo-Gallup project. Thus, the Navajo Nation stands to have a
role in defining the operational structure to ensure water delivery to
all project beneficiaries.
On the other hand, the Navajo-Gallup project has progressed as a
multi-party and multi-jurisdictional initiative, and the other key
players represented on the Steering Committee--including most
prominently the City of Gallup, the Jicarilla Apache Nation and the
State of New Mexico--will likewise have a role in helping to define
operational structure, just as they have contributed to most other
aspects of project planning. Notably, the City of Gallup has both the
financially strongest customer base and the most highly developed water
infrastructure among the Project parties, and it will also have a
pivotal role in serving as a conduit for Navajo-Gallup project water,
through its municipal system, to the rural Navajo communities
neighboring the City. Thus, the City will undoubtedly be active in
helping to pursue a suitable operational structure for the project.
Question 2. Without the Navajo-Gallup Water Supply Project, please
describe the water supply outlook for the City of Gallup.
Answer. The status and trend of Gallup's dwindling groundwater
reserve have been well documented, and it has been projected that given
the status quo, Gallup may start experiencing water shortages during
peak demands as soon as 2010 (Well Production Planning Report, Sterling
& Mataya, 1998). It is no secret that groundwater sources within the
Gallup region are being depleted and that none of these sources will
provide a permanent supply for Gallup or other users in the region.
Gallup has taken fairly drastic measures to extend its available
supply by:
strengthening and expanding the City's water conservation
efforts;
exploring additional interim groundwater supplies (Gallup's
``G-22'' application to appropriate up to 5,000 acre-feet per
year from the San Andreas-Glorieta Aquifer is pending before
the New Mexico State Engineer, and an exploratory well is under
construction);
converting major recreational facilities to synthetic turf;
utilizing treated wastewater to irrigate two athletic fields
and the municipal golf course;
investigating the use of treated wastewater to augment the
drinking water supply (study & design of a pilot ``reverse
osmosis'' facility is underway); and
implementing significant (nearly 60%) water rate increases
and an aggressive inclining block rate structure, with the
combined effect of reducing Gallup's annual usage from a high
of 4,286.5 acre feet/yr in 1995 to 3,460 acre feet/yr in 2006
(nearly 20% reduction)--with the most substantial decline
during the drought years of 2003 to the present.
The City has not yet quantified the potential effects of this
reduced demand on Gallup's ability to meet projected demands beyond
2010. However, it is reasonable to predict that the effect would be
positive--hopefully giving Gallup a few more years to develop
alternatives.
It should also be noted that Gallup's projected water demands
(10,267.7 acre feet/yr in 2045) would greatly exceed (by over one-
third) the 7,500 acre-feet per year in Navajo-Gallup Water Supply
Project water deliveries allocated to the City in the project's
Planning Report. In this light, Gallup will need to continue its search
for additional water sources, while accelerating its implementation of
technologies such as reverse osmosis to utilize its supply in the most
efficient manner possible.
Question 3. You state in your testimony that the City of Gallup is
concerned with its ability to fund the portion of the Project
benefiting Gallup. S. 1171 currently provides that the City would pay
at least 25 percent of the portion of the Project that serves Gallup.
Do you believe that this amount exceeds what the City is able to
pay?
Answer. [Please note that this response replicates the written
response to a similar question posed by Senator Bingaman, documented
above.]
The short answer is that the City of Gallup should be able to plan
and carry out a financial strategy that meets the 25% cost share
commitment. However, there are some unique factors to be addresses and
resolved.
On the surface, it appears that Gallup's rate-payers can afford 25%
of Gallup's share of the project costs. However, the economic analysis
work done as part of the Navajo-Gallup EIS leaves out one large
component of Gallup's current and future expense, which is its need to
replace aging infrastructure.
Gallup presently has approximately 71 miles of water distribution
piping installed prior to 1966, which will need to be replaced over the
next 40 years at an estimated cost of $42.4 million. In addition, a
large portion of the remaining 157 miles of pipe currently in service
will be 40 to 60 years old at the time Gallup's cost share becomes due.
Gallup has not stood idly by while its water system deteriorated.
On the contrary, Gallup has always had a relatively vigorous capital
improvement program, and more recently (2005) it leveraged increased
water utility revenue projections to pass $21 million in revenue bonds
($10 million for water and $11 million for wastewater) to address some
of the more critical water and wastewater needs.
It is also important to be mindful of the rising cost of other non-
discretionary expenses such as wastewater, power, solid waste, natural
gas and fuel when considering the ability of Gallup's rate-payers, a
large segment of whom are at or below poverty level, to pay higher
costs for this utility.
Due to Gallup's aggressive capital improvement program and steeply
inclining rate structure (well above the state average for the average
user and second only to Santa Fe for those in the top tier), Gallup's
bonding capacity and rate-payers' capacity may be at their limits.
Nevertheless, to proactively deal with the water financing
challenge, Gallup is currently re-evaluating its financial position and
developing its long-term strategy with respect to the Navajo-Gallup
project. One key piece of the strategy will undoubtedly be investment
by the State of New Mexico in a portion of Gallup's share of the
project costs. City, County, Tribal and COG representatives met in
Gallup on July 9th with staff from the offices of the Governor and the
State Engineer, and I was very encouraged by the spirit of
collaboration in this regard. I will be working with the Governor's and
State Engineer's Offices and with the State Legislature on a mechanism
to specifically include financial commitments to Gallup over time, such
as via amendment or regulatory stipulation to the Indian Water Rights
Settlement Fund and the Water Trust Fund.
With regard to the City's own commitment to the project cost share,
several options are currently under consideration, including:
inviting the financial partnership of the County of
McKinley;
potential utilization of local taxation and bonding options;
earmarking a portion of utility revenues for a project
sinking fund, to be accelerated in the years 2014 and 2019 when
current long-term bond debts are retired;
user surcharges, possibly ramped upward over time; and
systematic increases in water rates over time.
It is the City's plan to provide a preliminary report on its
financial strategy to Senator Domenici on the occasion of his visit to
Gallup on August 15th, 2007.
However, until such time as factors such as the cost of water,
final OM&R (operations, maintenance & replacement) and capital costs,
and construction scheduling are determined, it will be difficult for
Gallup to determine what its ultimate financial strategy will be and
what its citizens can afford.
In any event, the approach being pursued is that, in partnership
with the State of New Mexico and McKinley County, the City will design
and implement a strategy to meet the 25% local cost share.
______
Responses of John D'Antonio, Jr., to Questions From Senator Bingaman
Question 1. The state is making an up-front $25 million
contribution to this settlement. Also, as you note, over the past 4
years it has invested another $25 million towards distribution systems
that will ultimately hook up to the Project. That seems to be much more
substantial contribution than other states have historically provided.
This settlement is, however, substantially larger than most.
Is it possible that the State of New Mexico may be able to increase
its cost-share commitment towards the Settlement to address at least a
portion of the federal concerns? Are there other areas where the State
is committing resources to move the settlement and project forward,
which have not yet been recognized?
Answer. To help assure that the substantial benefits promised by
the settlement are realized, the state of New Mexico is willing to
discuss increasing its cost-share commitment, subject to approval of
the governor and the state legislature. To date, the federal
administration has not engaged in discussions relating to the costs of
the settlement.
To expand on what was stated in my prior testimony, the state
already appropriated $10 million to the Indian Water Rights Settlement
Fund, established by the New Mexico legislature in 2005 for the
explicit purpose of paying the state's portion of costs associated with
Indian water rights settlements, and it is anticipated that future
legislatures will continue appropriations in future years. In addition,
approximately $25 million in funding from New Mexico's Water Trust
Board and other appropriations will benefit the settlement and the
pipeline project.
With regard to other state activities that benefit this settlement,
the state has worked tirelessly to hold public meetings regarding the
settlement agreement and to meet with interested persons to explain the
settlement. The state also cooperated with the Bureau of Reclamation to
issue a draft Environmental Impact Statement, and contributed
significant resources toward the development of the hydrologic
determination issued by the Secretary of the Interior in May 2007. In
June 2005, the state obtained approval for the hydrologic determination
from the Upper Colorado Compact Commission. The state also obtained the
approval of the Upper Colorado Compact Commission to use water
apportioned to New Mexico's upper Colorado basin compact allocation in
the lower basin within New Mexico to enable delivery of water to the
City of Gallup. Without the state's proactive involvement on these
issues, the settlement would not be able to move forward.
New Mexico is anxious to see a federal commitment commensurate with
the federal government's trust and statutory responsibilities for the
benefit of Navajo communities that need water now. Again, New Mexico
commends Senators Bingaman and Domenici for their recent communications
with the Office of Management and Budget regarding the need to treat
New Mexico's water rights settlements fairly and consistently vis-a-vis
other settlements around the country.
Question 2. Reviewing Mr. Guenther's testimony, it appears that
Arizona objects to S. 1171 because (1) the Navajo Nation has ongoing
litigation with Arizona concerning the Colorado River in Arizona, and
it wants to delay the NM settlement until it settles those issues; (2)
Arizona believes its interests are being disadvantaged by New Mexico
using it's full compact entitlement to the Colorado River; and (3)
provisions in the bill need to be revised to more correctly address
inconsistencies with the law of the River.
What is your perspective on Arizona's objections? Are there certain
objections that New Mexico is prepared to address through changes to
the legislation? Are there other objections that would undermine the
support that has already been secured from the other Basin states?
Answer. As I stated in response to a similar question from Senator
Domenici during the hearing on June 27, 2007, I think Arizona's
position is unreasonable. New Mexico's settlement with the Navajo
Nation provides a large benefit to the state of Arizona because the
settlement will authorize the construction of a drinking water pipeline
to Window Rock, the Navajo Nation's capital, thus avoiding having to
duplicate the cost of a pipeline to Window Rock in Arizona. New
Mexico's settlement and S. 1171 preserve Arizona's right to negotiate
its own settlement with the Navajo Nation. In general, the issues
raised by Arizona do not require resolution through the New Mexico
settlement, but should be more appropriately raised in connection with
an Arizona settlement. Through consultation with Arizona, New Mexico
has been able to accommodate some of Arizona's concerns. For example,
New Mexico has proposed substitute language for Section 303(g)
authorizing the use of New Mexico's upper basin water in the lower
basin of New Mexico. Unfortunately, many of Arizona's requests go
beyond the scope of the New Mexico settlement, and would raise
objections from the other Colorado River Basin states.
Question 3. The Albuquerque Bernalillo County Water Authority's
testimony suggests that there's been no analysis of how new contracts
could affect the San Juan-Chama water supply. There are several other
issues raised by the Authority that seem to indicate that the
settlement may pose a threat to the San Juan-Chama project. Your
written testimony suggests the opposite.
Has there been any analysis of the effect of new contracts? Do you
still believe that the settlement protects the interests of the San
Juan-Chama Project? And will you sit down with the Authority to provide
clarification or resolve any differences that exist over the
settlement?
Answer. The 2007 Hydrologic Determination takes into account
current and projected uses of water from the San Juan Basin, including
water allocated to the San Juan Chama Project. In addition, New Mexico
has analyzed the possible impacts of the Navajo settlement on the San
Juan Chama Project and we believe the project is protected. Attached to
these supplemental responses is a memorandum prepared by staff of the
New Mexico Interstate Stream Commission on this subject and presented
to Congressional staff and Water Authority staff in 2005.* To the
extent necessary, New Mexico will work with the Albuquerque Bernalillo
County Water Authority to clarify the shortage allocation procedures,
or otherwise resolve any differences that exist over the settlement.
---------------------------------------------------------------------------
* The memorandum has been retained in committee files.
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In evaluating the effects of the settlement, we need to think about
the alternative: what would the potential effects be on San Juan Chama
Project contractors and on other water users without settlement? As my
testimony in answer to other questions describes, the amount of new
water under the settlement is relatively small, much less than the
amount conceivably claimable by the Navajos.
Question 4. Your testimony states that you believe the settlement
benefits and protects the interests of all water users in the State.
Please identify the key aspects of the settlement that protect
other water users in the San Juan Rive basin.
Answer. For decades Navajo claims to the San Juan River have
threatened the security of water rights of all other water users within
the basin. Under the settlement, the Navajo Nation accepts compromises
regarding both the quantity of its water rights and administration of
its priority dates, with the result that Navajo claims fit within New
Mexico's apportionment of the Upper Colorado Stream System and will not
displace other existing uses and projects.
A key feature of the settlement is the Navajo's willingness to
limit the demand of their large irrigation project, the Navajo Indian
Irrigation Project (NIIP). In 1962, Congress authorized an annual
diversion of 508,000 acre-feet to supply NIIP; however, the Navajos
through conservation are agreeing to limit diversions to 353,000 acre-
feet. The Navajos are also agreeing that both NIIP and the proposed
rural water supply project will be supplied under the Navajo
Reservoir's 1955 priority, instead of a reserved priority date of 1868.
As a result, even with new diversions required by the proposed
rural water supply project, the settlement's net effect is a decrease
in annual diversion of over 130,000 acre-feet from the amount already
authorized by federal law and state permits. And supply of the two
projects under a 1955 priority means that direct flow diverters, such
as irrigators, municipalities and power plants, will be unaffected by
the demands of either project. In addition, direct flow diverters will
receive a substantial protection from priority calls by the Navajo
Hogback and Fruitland projects, which retain an 1868 priority, because
of the Navajos' agreement to call first on an alternate water supply
from Navajo Reservoir of up to 12,000 acre-feet in any year. Based on
the hydrologic record, Hogback and Fruitland priority calls would occur
in one out of every twenty years instead of every other year.
With respect to water users receiving supply from the Animas-La
Plata Project (ALP), the settlement has valuable shortage sharing
provisions that protect those supplies. Most of the 13,520 acre-feet
per year of ALP water allocated for use in New Mexico will supply the
future needs of the three municipalities of Farmington, Bloomfield and
Aztec, but that supply is vulnerable because of ALP's 1956 priority in
New Mexico. In the event the Upper Colorado River Basin Compact
requires curtailment of ALP uses in New Mexico, the Navajos agree to
provide protection to New Mexico ALP contractors up to their project
contract amount. Under this protection, the Navajos agree to forgo
their uses in order to make water available at the same percentage
supply available to the proposed rural water supply project.
The settlement also benefits water users by promoting orderly
administration of basin resources and conservation of water. The
settlement provides that the State Engineer will serve as water master
in the San Juan Basin and will administer water rights in priority as
necessary to comply with interstate compact obligations and other
applicable law, thereby confirming authority in the state to
comprehensively administer water usage in the basin. In addition to
over 150,000 acre-feet of conservation of NIIP irrigation water, S.
1171 further fosters conservation of water by authorizing funding for
rehabilitation and construction improvements to Navajo and non-Indian
irrigation systems diverting from the San Juan River.
I strongly believe the proposed settlement is comprehensive and
fair, and represents a desirable outcome for all water users in the San
Juan Basin.
Question 5. One set of testimony submitted for the record asserts
that the Navajo settlement will allow the Tribe to export New Mexico's
water to other states including Nevada.
Does the Navajo settlement and S. 1171 allow the Navajo Nation to
export New Mexico's water to other States? What provisions of law exist
to preclude that from happening?
Answer. Multiple state and federal approvals are required to export
any water from New Mexico to another state. Under the settlement
agreement, the Navajo Nation has agreed to comply with state law.
Although it is unconstitutional for a state to prohibit the export of
water to another state, New Mexico's export statute, 72-12B-1 NMSA
1978, requires a state engineer permit for export of water and sets
strict criteria for evaluating any request to export water. Potentially
impaired parties would be allowed to protest any application.
In addition, under the settlement agreement, the Navajo Nation has
agreed that it will not seek to export water without the approval of
the New Mexico Interstate Stream Commission.
With respect to federal constraints, it can be argued that the
Colorado River compacts apportion uses to individual states and do not
allow export of water from one state to another. Arguments have also
been raised that water cannot be transferred from the Upper Colorado
River Basin to the Lower Colorado River Basin. S 1171 would authorize
the use of some of New Mexico's Upper Basin water in the Lower basin
within New Mexico but this legislation would not authorize any export
of water from New Mexico to any other state.
Responses of John D'Antonio, Jr., to Questions From Senator Domenici
Question 1. Mr. D'Antonio, thank you for joining us today. The
state of New Mexico has one of the most important and difficult
decisions to make regarding this settlement. As you know, Congress is
not responsible for approving the allocation of water in this
settlement, the State is.
Do you believe that the water allocation agreed to by the state of
New Mexico and the Navajo Nation adequately protects current non-Indian
uses and provides for future needs?
Answer. The state of New Mexico believes that the Navajo settlement
protects existing non-Navajo uses. Before signing the settlement
agreement, the state of New Mexico carefully considered the needs of
non-Navajo water users in the San Juan Basin, and over the course of
several years the state met many times with water user groups, took
formal public comments, analyzed alternatives and worked tirelessly to
negotiate the agreement in order to resolve the concerns voiced.
As I have testified, the settlement contains numerous substantial
provisions that protect existing water uses. In addition, the
settlement affords an important protection for the future supply of the
three municipalities of Farmington, Bloomfield and Aztec from the
Animas-La Plata Project (ALP). Those cities will receive more than
10,000 acre-feet per year of ALP water for their future needs, but
ALP's 1956 priority in New Mexico makes it vulnerable to priority
calls. Under the settlement, the Navajos agree to provide protection to
New Mexico contractors up to their project contract amount, in the
event that curtailment of New Mexico's water uses is required by the
Upper Colorado River Basin Compact.
To meet other demands in the future, water users in the basin, as
in other basins in the state, can acquire existing rights and change
their use by applying for a State Engineer permit. The settlement,
combined with the existing adjudication, will give much more certainty
to the status of existing rights and more readily will allow for a
transfer of use. The settlement also authorizes the Navajos to market
water within the basin and the state, further providing a source of
supply for additional non-Navajo demands in the future.
Question 2. Are you convinced that non-Indians are better off with
this settlement than they would be without it?
Answer. It is my firm belief that we have come as close as possible
to a resolution that provides maximum benefits and protections for non-
Navajo water users, given limitations of water supply and potential
uncertainties of its allocation if the Navajo claims were litigated.
Without a settlement, the Navajo Nation would assert a right to much
larger quantities, with the potential to displace junior non-Navajo
water users. Under the settlement, those same water users are afforded
numerous and substantial protections.
If the claims were litigated, the Navajos would seek large
quantities of water under the Winters Doctrine or Federal Reserved
Water Rights Doctrine. The Navajos would seek water for future use to
make the Navajo reservation a permanent homeland, including by claiming
enough water to irrigate all practicably irrigable acreage (PIA) on
their lands in New Mexico. The quantity of water could be very large.
Under the settlement by contrast, the only ``new'' water the
Navajos will receive is almost 21,000 acre-feet a year of water to
supply domestic and commercial uses for the Navajo portion of the
proposed rural water supply project. The other major water components
of the settlement consist of already existing or authorized irrigation,
at the Hogback and Fruitland Projects and the Navajo Indian Irrigation
Project (NIIP).
The state of New Mexico strongly believes that the settlement
represents a fair and equitable resolution of Navajo claims, both for
the Navajo Nation and for the other water users that depend on the San
Juan River.
This settlement has enormous non-Indian benefits, including the
construction of the Navajo-Gallup Pipeline that would serve the City of
Gallup. Additionally, the legislation removes the possibility that the
Navajo Nation would receive a large water rights award from the courts,
curtailing non-Indian uses.
Question 3. How do you respond to the San Juan Agricultural Users'
Association's claim that they will be hurt by this settlement? Please
describe the benefits of the settlement to them.
Answer. In order to fairly consider the settlement, a water user in
the San Juan Basin must honestly evaluate the substantial risk of
litigating the Navajo claims. I believe that such an evaluation will
provide compelling support for the settlement.
I have previously described the two overarching protections
incorporated into the settlement, regarding quantity and priority: the
Navajo Nation accepts quantification of its water rights and
administration of its priority dates, both so as to preserve other
existing uses and projects.
In addition, the settlement confers other protections on non-Navajo
water users. When we met early in the process with the San Juan
Agricultural Users, they told us the most important protection they
sought was recognition by the United States and the Navajo Nation of
the 1948 Echo Ditch Decree. Most non-Indian and municipal state-based
rights were quantified by the Echo Ditch Decree, but the United States
and the Navajo Nation were not parties. As a result of the agricultural
water users' concern, the settlement agreement was revised to include
provisions prohibiting the Navajo Nation and the United States from
challenging the elements or validity of Echo Ditch Decree.
In agreeing that NIIP and the proposed rural water supply project
will be supplied under the Navajo Reservoir's 1955 priority, instead of
a reserved priority date of 1868, the Navajos are subordinating 90
percent of their water rights. Nonetheless, the agricultural water
users felt threatened by the prospect of priority calls by the Hogback
and Fruitland Projects, which retain an 1868 priority. The agricultural
users also expressed a desire to receive the benefit of Navajo
Reservoir storage, even though they only have rights to direct flow. To
address these additional concerns, the alternate water supply was
defined and made a part of the settlement, requiring the Hogback and
Fruitland projects to refrain from priority calls against upstream
junior appropriators and instead to call on up to 12,000 acre-feet per
year of NIIP water stored in Navajo Reservoir. This sizeable stored
water pool will serve as a buffer to priority calls and will prevent
curtailment of direct flow diversions the great preponderance of the
time.
Another benefit of stored water for direct flow diverters like the
agricultural water users is contained in paragraph 401(a)(4) of S.
1171. When there is at least a million acre-feet in Navajo Reservoir,
this provision authorizes the state of New Mexico to administer
releases of stored water at a minimum of 225 cubic-feet-per-second
(cfs), even when inflows to the reservoir are less than that amount. In
other words, when the direct flow would otherwise drop below 225 cfs,
water may be released from the reservoir to keep flows at a minimum
amount, thereby increasing and making more reliable the supply
available to direct flow diverters.
The settlement would also make the direct flow go farther by
providing funding for ditch improvements. Under Section 10.0 of the
settlement agreement, the state will contribute $10 million for ditch
improvements and water conservation projects to benefit the member
ditches of the agricultural water users association. Section 309(c) of
S. 1171 authorizes over $23 million to rehabilitate the Hogback and
Fruitland projects and Section 309(d) authorizes $11 million of
matching funds to rehabilitate the agricultural water users' ditches.
These funds will mean that approximately $45 million will be
appropriated to improve the efficiency and promote conservation of
water of the direct flow diversions, as part of the Navajo settlement.
In opposing the settlement, the San Juan Agricultural Water Users
simply have not taken realistic stock of their litigation posture and
of the potential jeopardy they face absent settlement. Although the
settlement has required compromise on all sides, the state has worked
hard to protect all existing uses in the basin and to advance a
settlement that strikes an equitable balance of interests and maximizes
the attainable benefits.
Question 4. Considering its enormous benefits to the state of New
Mexico, do you believe that the State could contribute more towards the
settlement?
Answer. Yes, we are willing to discuss increasing New Mexico's
financial commitment to this settlement, with the concurrence of the
governor and the state legislature. As stated in response to Senator
Bingaman's question, New Mexico has already committed significant
funding toward projects that will benefit the Navajo Settlement and we
have also developed the Indian Water Rights Settlement Fund that will
enable New Mexico to meet its spending obligations for Indian water
rights settlements. New Mexico is depending on a commitment from the
federal administration that it will support and fund this settlement
commensurate with its obligations.
Question 5. Will you commit to working with the state legislature
to secure more state money for the settlement?
Answer. Yes. This settlement is very important to the state of New
Mexico and we will work very hard to secure the funds to meet the
state's cost share obligations.
Public Law 87-483 requires that the Secretary of the Interior make
a hydrologic determination that water will be available under New
Mexico's allocation under the Upper Colorado River Compact before new
contracts are issued at Navajo Reservoir. This settlement legislation
would require new contracts at Navajo Reservoir.
Question 6. Are you confident that this water exists?
Answer. Yes. The Bureau of Reclamation's April 2007 Hydrologic
Determination was signed by the Secretary of the Interior on May 23,
2007, after the Upper Colorado River Commission by unanimous resolution
concurred in the findings of the determination and after consultation
with all seven Colorado River Basin states. The 2007 Hydrologic
Determination confirmed the finding of the 1988 Hydrologic
Determination that the annual water yield available for development by
the Upper Basin under the Colorado River Compact is at least 6.0
million acre-feet (maf), including evaporation from Colorado River
Storage Project (CRSP) reservoirs, based on the critical hydrologic
period of record ending 1978. The 2007 Hydrologic Determination
analyzed both the existing contracts associated with Navajo Reservoir
and the new contracts proposed by the settlement agreement and
determined that the water is reasonably likely to be available to
supply needs of those contracts as required by PL 87-483.
Question 7. Please describe the steps your office has taken to
ensure that water will be available.
Answer. My office was instrumental in the preparation of the 2007
Hydrologic Determination, and in obtaining the support of the Upper
Colorado Compact Commission. In addition, New Mexico participated and
continues to participate in forums to protect its interests in Lake
Powell operations pursuant to the Law of the Colorado River, and
thereby to protect against possible years of Upper Basin use
curtailments due to extended drought, and in forums to protect our
interests in Navajo Reservoir operations so that water demands are met
while still complying with federal environmental laws. Continued
Congressional support for the San Juan River Basin Recovery
Implementation Program helps allow New Mexico to proceed with
development of its Upper Basin apportionment while also complying with
the Endangered Species Act. We will continue to protect New Mexico's
Colorado River apportionments as necessary to preserve future and
existing uses.
Question 8. Do you believe that water would be available to
accommodate growth in the Four Corners area? If so, for how long?
Answer. Yes. The 2007 Hydrologic Determination takes into account
all existing uses in the San Juan Basin and will allow for growth in
the basin for several decades. As is the case throughout the west,
long-term continued and sustained growth will depend on increased
conservation, market transactions, augmentation and development of new
supplies utilizing technologies such as brackish water desalination. In
particular, as I testified in answer to Senator Bingaman's question,
ALP water to meet future needs of Aztec, Farmington and Bloomfield and
water transfers and marketing facilitated by the settlement will help
make substantial water available to accommodate growth in the future.
______
Arizona Department of Water Resources,
Phoenix, AZ, July 12, 2007.
Hon. Jeff Bingaman,
Chair, Senate Committee on Energy and Natural Resources, 366 Senate
Dirksen, Washington, DC.
Dear Chairman Bingaman: Thank you for the opportunity to appear
before your Committee and present the views of the State of Arizona on
S. 1171, the Northwestern New Mexico Rural Water Projects Act, and the
opportunity to answer additional questions from the Committee.
Enclosed are my answers to the Committee questions. I would like to
reiterate that we stand ready to work with the Committee to make S.
1171 acceptable to the State of Arizona. Should you have any questions,
please do not hesitate to call me or my staff.
Sincerely,
Herbert R. Guenther,
Director.
______
Responses of Herbert R. Guenther to Questions From Senator Bingaman
Question 1. In 2003, the State of Arizona testified before this
Committee that it should move forward with the Arizona Water Settlement
notwithstanding the fact that the San Carlos Apache Tribe was not
included in the Settlement. At the time Arizona indicated that the
settlement need not be comprehensive since the Tribe's rights were
preserved in the legislation. That is the same approach taken in S.
1171--preserving all of Arizona's rights and interests with respect to
the use of water in Window Rock.
If the bill were modified to simply state that no water would be
delivered to Arizona except in accordance with an agreement with
Arizona and appropriate Federal legislation (including Compact
accounting), wouldn't 't this be analogous to the San Carlos situation,
allowing the bill to move forward without objection? Are the changes
already proposed by the State of New Mexico (D 'Antonio letter of June
5, 2007) sufficient to address the Compact issues you raised regarding
water use in New Mexico?
Answer. The San Carlos Apache Tribe (SCAT) situation is very
different. The primary settlements for the 2004 Arizona Water
Settlements Act were the Central Arizona Project Repayment Settlement,
the Gila River Indian Community Water Rights Settlement (GRIC), and
Amendments to the Southern Arizona Water Rights Settlement Act of 1982
(SAWRSA). The GRIC settlement comprehensively addressed all the GRIC
claims. The SAWRSA amendments updated a previously congressionally
approved settlement. These two tribal settlements were conditions for
final approval of the CAP Repayment Stipulation and Settlement. No
other tribal settlement was required under those terms. While the
Arizona parties attempted to settle the SCAT claims, we were only able
to provide a funding mechanism to the SCAT for further negotiations. In
1992 Congress enacted the San Carlos Apache Water Rights Settlement Act
that only settled a portion of the claims of the SCAT. The State of
Arizona opposed that legislation based on several factors, including
that it was partial. Arizona should have pushed harder for a full
settlement. Since that time implementation has been difficult, and
litigation has continued non-stop. We do not believe it is in the best
interests of the Navajo Nation or the parties to the litigation
involving the Navajo water claims to have a partial settlement.
We believe that the better solution for the Navajo Nation would be
a complete settlement of its claims in the Little Colorado River Basin
and in the Colorado River for lands to be served by the Northwestern
New Mexico Rural Water Project, especially in light of the ongoing
Navajo Nation litigation against the Secretary. New Mexico states that
Arizona's right to choose the source of water is preserved. We have
chosen a source of water without hearing objection from the Navajo
Nation. Additionally, the Secretary, in the August 25, 2006 Federal
Register Notice (71 Fed. Reg. 50449, 50451) concerning Central Arizona
Project (CAP) water allocations under the Arizona Water Settlements Act
included 6411 acre feet of NIA priority CAP water for use in a future
water rights settlement agreement approved by an Act of Congress that
settles the Navajo Nation's claims for water in the State of Arizona.
We believe there is no other source of water available for the Window
rock portion of the Navajo Nation settlement. For some reason New
Mexico, and maybe the other Upper Basin States believe that Arizona's
meager 50,000 of allocation of Upper Basin water should be used for
Window Rock. We do not agree.
Our issues with Compact accounting and specific congressional
authorization for using Upper Basin water in the Lower Basin, or
wheeling Lower Basin water through the Upper Basin can easily be
addressed. New Mexico's language for section 303(g) is an attempt to
meet some of our concerns. We stand ready to work with Congress to
fully address our concerns and work on language to accomplish those
goals.
One can argue that this could be left to another day, but we
believe Arizona needs the protections that we have proposed as
modifications to this legislation in order to prevent future violations
of the Compact.
Question 2. Your testimony appears to endorse the concept of
creating a Settlement Fund that can be used for this, as well as other
settlements. That is the approach set out in Title II of the bill,
which is intended to be used for this settlement, as well as other
similar matters.
What expanded concepts, as set forth in your testimony, do you
believe need to be incorporated into Title II?
Answer. Over the past decade Arizona has worked with the Western
States Water Council and the Native American Rights Fund to find
funding solutions for all water settlements. Title II is a creative way
to meet all the western states needs. What should be explored is
additional amounts of the Reclamation Fund be added to the Reclamation
Settlement Fund, and making the Fund available to settlements outside
of New Mexico. Arizona specifically wants a portion of the Reclamation
Settlement Fund to be set aside for the Arizona Navajo Nation Lower
Colorado River Basin and Little Colorado River Basin settlements. The
needs of the Navajo Nation are greater than any dedicated funding that
is available to Arizona to offer for settlement. With an adequate
settlement funding mechanism, settlement in Arizona is likely.
Question 3. Your testimony states that ``S. 1171 sets a precedent
that New Mexico and Utah can increase development in the Lower Basin
and further jeopardize Arizona rights.'' Arizona seems to be raising a
technicality to object to New Mexico making full use of its Compact
entitlement. There is ample precedent for a basin state making use of
its Compact allocation out of basin. New Mexico did it with the San
Juan-Chama project. Utah and Colorado have several transbasin
diversions and California takes Colorado River water to the coast. The
bottom line is that despite New Mexico's place of use in the State, the
Upper Basin is still required to deliver an amount of water to the
Lower Basin consistent with the Compact.
Given that background, how are Arizona's rights being jeopardized
by S. 1171?
Answer. The 1922 Colorado River Compact specifically states that
the allocations made in Article III (a) and (b) to the Upper and Lower
Basins were for exclusive use in each of those Basins. Only once
Congress has authorized an exception to Article III of the Compact to
specifically grant a modification of this requirement (see 1968
Colorado River Project Act, 43 U.S.C. 1523(d)). However, this
congressional exception was never exercised.
It is true that the Upper Basin states transport water out of the
Colorado River basin to other users within their states, but there is
no case where Colorado River water is transported between the Upper and
Lower Basins. We believe the Compact prohibits transfers from the Upper
Basin to the Lower Basin and that the water allocations were intended
for the exclusive use within each basin. The Compact definition for the
term ``Upper Basin'' includes ``and also all parts of said States
located without the drainage area of the Colorado River System which
are now or shall hereafter be beneficially served by waters diverted
from the System above Lee Ferry. The Compact negotiators recognized
transfers out of basin such as the San Juan-Chama Project and others,
which shows the negotiators intent in using the ``exclusive use''
provision.
Arizona fully supports the Upper Basin states' right to develop
their allocations made under the Compact, but only insofar as they are
consistent with the Compact. Finding ways around the Compact that allow
use of Upper Basin water in the Lower Basin, without first obtaining
specific congressional recognition and authorization creates precedent
for similar Compact violations in the future, thereby increasing the
chance that Arizona will suffer the effects of a Lower Basin shortage.
Under the 1968 Act the Central Arizona Project (CAP) and other post-
1968 users are first to take shortages. CAP is a primary water source
for the cities in the Phoenix and Tucson metropolitan areas. Congress
should carefully weigh the equities before allowing such a change in
the Compact. Arizona has offered language which would address our
concerns, and allow the Northwestern New Mexico Project to go forward.
Question 4. Mr. Guenther, you oppose this settlement despite the
fact that it would provide a reliable source of water to the water-
short town of Window Rock, Arizona?
Answer. The San Juan settlement does not provide water to Window
Rock. The settlement and legislation provide a pipeline that could
carry water to Window Rock without a designated source of water. Under
the present language in S. 1171, only an Arizona settlement with the
Navajo Nation will provide water to Window Rock. Without an adequate
funding mechanism for an Arizona settlement, as we suggest could come
from Title II of S. 1171, we will not have an Arizona settlement and
Window Rock will not receive water. The unintended consequence of S.
1171 will be to divide the Navajo Nation into two classes. One part of
the Nation will have a clear right and the necessary finances to
provide water to its members, and the other part of the Nation will
not.
Question 5. As you'll recall, Senator Bingaman and I worked
diligently with Senator Kyl to pass the Arizona Water Rights Settlement
Act of 2004. You state in your testimony that you would like to delay
the legislation we are considering today until we include additional
Arizona Indian water rights settlements.
Why did you believe it was appropriate to pursue the Arizona Water
Rights Settlement Act of 2004 without including the Arizona Indian
water rights settlements you reference in your testimony today?
Answer. We do recall the great assistance that Governor Richardson,
Senator Bingaman and yourself gave in final passage of the Arizona
Water Settlements Act, and we thank you for that assistance. However,
we also recall that it was the issues raised by New Mexico on the Gila
River, both for additional water and new funding (a requested $200
Million) from the Arizona legislation that delayed bringing the
legislation to the full Committee and the Floor of the Senate.
That Act settled the CAP repayment litigation, settled the water
rights claims for the Gila River Indian Community, and amended the
Southern Arizona Water Rights Settlement Act of 1982 to settle the
claims of the Tohono O'odham Nation for a portion of its reservation.
While the state parties attempted to settle the San Carlos Apache Tribe
(SCAT) claims, we were only able to provide a funding mechanism to the
SCAT for further negotiations. Those were the only claims ready for
settlement in 2004. The driving force for the Act was the CAP repayment
litigation that involved billions of dollars. As we note below in the
answer to another of your questions Arizona has settled the claims of
12 of the 21 Indian tribes within the state.
Question 6. Mr. Guenther, please describe for the Committee the
status of the negotiations surrounding the resolution of Indian water
rights claims on the Lower Mainstem Colorado River and the Little
Colorado River basins in Arizona.
Answer. The negotiations among the state parties, Navajo Nation,
Hopi Tribe and the United States are being conducted under a
confidentiality order of the United States District Court for the
District of Arizona. For that reason we are not at liberty to disclose
the detail of those discussions. We can report that the state parties
recently mad a comprehensive settlement proposal to Navajo Nation, Hopi
Tribe and the United States. All the parties will meet again on July
13. The state parties are struggling with the issues related to
financing major water project construction to serve the western
portions of the Navajo Nation. The state parties believe that it is a
Federal obligation to fund these projects, but considering the
difficulty in obtaining new appropriations, it may be unrealistic to
expect that level of funding. Arizona is encouraged by the proposed
Reclamation Water Settlements Fund contained in Title II of S. 1171, as
we noted to Senator Bingaman in answer to his question. If the revenue
sources for this Fund could be expanded and made available for Navajo
and Hopi projects within Arizona, it is more likely that a settlement
could be achieved fairly quickly.
Question 7. When do you estimate these negotiations will be
completed?
Answer. It is hoped that with a funding solution we can complete
the settlement quickly. Without a funding mechanism there will likely
be no settlement.
Question 8. Mr. Guenther, you state in your testimony that we
should expand on Title II of this legislation to include funding for a
Navajo Nation/Hopi Tribe settlement in Arizona. As you'll recall, the
Arizona Water Settlement Act of 2004 contained $250 million for future
Indian water rights settlements in Arizona.
For what Arizona Indian water rights settlements do you plan to
use the $250 million contained in the Arizona Water Rights Settlement
Act for future Arizona Indian water rights settlements?
Answer. Arizona seeks additional help with an Arizona Navajo Nation
settlement because the needs of the Navajo Nation far exceed the amount
available from the settlement fund of the Arizona Water Rights
Settlement Act settlement fund. Arizona has 21 federally recognized
Indian Tribes. Four of those tribes have had their rights fully
determined by the U.S. Supreme Court in Arizona v. California.
Congressionally enacted settlements (including the pending
implementation of the Arizona Water Settlements Act) have fully settled
the claims of another six tribes. Two other tribes have had portions of
their reservations settled pursuant to federal authorization. This
leaves the Navajo Nation, Hopi Tribe, Hualapai Tribe, Havasupai Tribe,
Kaibab-Paiute Tribe, White Mountain Apache Tribe, Pascua Yaqui Tribe,
Yavapai-Apache Nation, Tonto Apache Tribe, and portions of the San
Carlos Apache Tribe and Tohono O'odham Nation. Even without the Navajo/
Hopi settlement it is unlikely that the $250 million set aside in the
Arizona Water Settlements Act will be adequate.
Question 9. How much additional funding do you anticipate will be
necessary for the Arizona Hopi and Navajo Indian water rights
settlements?
Answer. As noted above, the confidentiality order constrains what
we can say in response to this question. We can report that the Navajo
Nation and the Hopi Tribe have both presented funding proposals based
on their perceptions of the needs of people on the reservations. The
state parties have countered with a much lower number. As yet, the
United States has not proposed a funding amount. We believe that the
Nation and the Tribe would be willing to confer with your staff about
their funding needs.
______
Responses of Carl Artman to Questions From Senator Bingaman
[Responses to the following questions were not received at the time
the hearing went to press.]
Question 1. Does the Department recognize any responsibility for
trying to address the serious drinking water crisis that exists on the
Navajo Reservation? Does OMB? If so, what actions are being taken to
address that situation?
Question 2. Your testimony expresses concern about the use of a
small percentage of surplus revenues into the Reclamation Fund to help
ensure implementation of the Navajo settlement or other water
settlements involving the Bureau of Reclamation--a concept endorsed by
the Western Governors Association. In particular, you object because
use of the Fund in this matter would bind future Presidents and
Congresses.
Does the Arizona Water Settlements Act involve direct spending?
Does that spending bind future Presidents and Congresses? When was that
bill signed into law?
Does the San Joaquin legislation currently pending before this
Committee (S. 27) involve direct spending? Would the capital cost
repayments that are contemplated to be expended in S. 27, otherwise be
deposited in the Reclamation Fund? Did the Administration support or
oppose that legislation? Would the direct spending in that legislation
bind future Presidents and Congresses if the bill were enacted into
law?
Should settlements involving the resolution of Federal issues in
litigation, which have been approved by Congress, be implemented?
Question 3. Based on information supplied by Reclamation staff, it
appears that over the last 5 years, revenues into the Fund averaged
$1.76 billion while appropriations from the Fund averaged $925
billion--an annual difference of approximately $834 million. The Fund
is intended to be used to provide revenues to fund projects authorized
under Reclamation law.
What happens with the surplus revenues flowing into the Fund which
are not currently being expended for Reclamation purposes? Are they
being used to fund other non-Reclamation governmental functions?
For fiscal years 2005 and 2006, please identify the revenue that
flow into the Reclamation Fund from each state. Please be sure to
include State-specific revenue streams from Accounts 5000.24; 5000.25;
5000.27; 5000.28; and 5000.29. For Account 5000.28, please include the
following subaccounts: 601; 603; 604; 605; 609; 610; 611; and 614.
Question 4. The Administration recently put together a $7 billion
settlement proposal intended to resolve the Cobell trust fund
litigation, and related matters. In announcing its proposal, Secretary
Kempthorne indicated that the package was intended to strengthen the
partnership between the Federal Government and Native Americans by
transitioning to a relationship defined by ``economic prosperity,
empowerment, and self-reliance for tribes and individual Indians''. At
this time, it doesn't appear that the proposal is likely to result in a
settlement.
A stable and reliable supply of water is fundamental to economic
prosperity, empowerment, and self-reliance.
If the $7 billion budgeted for a Cobell settlement is not going to
be used for that purpose, is it possible to make that funding available
to help implement Indian water rights settlements?
Question 5. The Administration testimony poses the question of
whether or not the goals of the settlement can be met by alternative
and potentially less expensive means. It's very late to be asking that
question. This study, first authorized in 1971, has been proceeding
since at least 1998, and has expended over $3.4 million in federal
money (not counting the investment by New Mexico; Gallup; and the
Navajo Nation). Moreover, the EIS finds that the Project as envisioned
in the bill is the superior alternative from an economic,
environmental, and overall perspective.
Given all the background and analysis already undertaken by
Reclamation, the Navajo Nation, the State of New Mexico, City of
Gallup, and Jicarilla Apache Nation, do you really think that a less
costly alternative is available to meet the water supply needs that
exist in Northwestern New Mexico? If so, why was that alternative not
analyzed as part of the EIS?
Question 6. After earlier contemplating whether a cheaper
settlement exists, your testimony then goes on to question whether or
not S. 1171 will accomplish the goals of the settlement. You note it
``especially troubling that the bill does not address the distribution
systems that must be constructed before any water will actually reach
the homes of those who need it.'' Of course adding distribution systems
would simply add more cost, which I assume, would simply result in an
even stronger objection. Your statement also reflects a lack of
understanding of the range of activities already being undertaken by
the State of New Mexico, City of Gallup, and the Navajo Nation to
address critical drinking water needs.
Are you aware that the State of New Mexico has invested
approximately $25 million already for regional infrastructure and
distribution systems over the last 4 years that will deliver
groundwater for an interim period, but ultimately tie-into the Navajo-
Gallup pipeline? Are Reclamation and the Department taking this
activity into account when it questions achieving the goals of the
settlement?
Question 7. Distribution systems that will eventually tie into the
Navajo-Gallup Project, such as the Cutter lateral, are currently being
constructed through mostly state and local efforts. BIA, however, is
responsible for approving rights-of-way for the distribution lines that
go through tribal and allotted lands. The approval process is critical
to constructing the lines without undue delay.
What is the status of the right-of-way approvals currently pending
before the BIA? Is BIA efficiently processing the right-of-way
applications so that the distribution systems can be constructed
without bureaucratic delays?
Question 8. The Draft EIS includes a detailed cost-breakdown for
the Project.
What is the estimated cost of the lateral that will take water from
the main pipeline to Window Rock, AZ?
______
Responses of Carl Artman to Questions from Senator Domenici
[Responses to the following questions were not received at the time
the hearing went to press.]
Question 9. Assistant Secretary Artman, for roughly 5 years, I have
been pleading with the Administration to work with the parties to New
Mexico Indian water rights settlements. You state in your testimony
that the Administration is unable to support this settlement because
you were not involved in negotiations relating to the settlement. I
find this very frustrating.
Do you commit to working with the parties to this settlement and
other New Mexico settlements from this date forward?
Question 10. In 1990, President George H. W. Bush's Administration
published ``Criteria and Procedures for the Federal Government's
Participation in Indian Water Rights Settlement Negotiations.'' The
``Criteria and Procedures'' provide that federal contribution for
Indian water rights settlements should consist of the sum of (1)
calculable legal exposure and (2) federal trust responsibilities to the
Indian nations.
Do the 1990 ``Procedures and Criteria'' reflect the current policy
of this Administration?
Question 11. Do you believe that providing a reliable water supply
to the Navajo people falls under the federal government's trust
responsibilities to the Navajo Nation? If not, why?
Question 12. The Arizona Water Settlements Act of 2004 had an
estimated cost of $2.2 billion and the Snake River Settlement Act had
an estimated cost of $163 million. Both of these settlements were
largely supported by the current Administration.
How are these two settlements distinguishable from the Navajo,
Aamodt, and Abeyta Settlements, particularly with respect to federal
contribution?
Question 13. Which of the components requiring federal funding in
S. 1171 does the Administration oppose and which does it support?
Question 14. Mr. Artman, in your testimony, you state that the
Administration has ``serious concerns'' with the funding proposal
contained in Title II of this bill. I have also introduced legislation
creating a fund to pay for New Mexico Indian water rights settlements.
With current annual budgets of $34 million for the Indian Land and
Water Claims Settlement Fund, it has become very difficult to find the
money for New Mexico Indian water rights settlements.
Absent a provision providing greater sums of funding for Indian
water rights settlements, how do you propose we fund the settlements?
Appendix II
Additional Material Submitted for the Record
----------
Secretary of the Interior
Washington, DC, June 8, 2007.
Hon. Bill Richardson,
Governor of New Mexico, Santa Fe, NM.
Dear Governor Richardson: I am writing this letter to inform you
that I have approved and signed the 2007 Hydrologic Determination
(Determination) for a proposed contract from Navajo Reservoir to
support the Navajo-Gallup Water Supply Project (Project). The Project,
if authorized through legislation, has been proposed to settle the
water rights claims of the Navajo Nation in the San Juan River Basin of
New Mexico.
Each of the Colorado River Basin States has a vital interest in the
Colorado River, and I wanted to personally inform you of the completion
of the Determination in light of the importance of having direct and
open communication on this valuable resource. A Determination for all
proposed long-term contracts for water from Navajo Reservoir is
mandated by Public Law 87-483, which requires the Secretary of the
Interior to undertake an investigation of whether there is sufficient
water within New Mexico's Compact apportionment to support any such
long-term contract for water from Navajo Reservoir. That law further
requires the Determination and the proposed contract be forwarded to
Congress for its approval. Because the United States has not negotiated
a contract with the Navajo Nation, the City of Gallup, or any other
potential water users of the Project as of this time, it is premature
to forward the Determination to Congress. As soon as such a contract(s)
is(are) negotiated, we will forward them and the Determination to
Congress.
The finding in the Determination that there is likely to be
sufficient water to support the proposed contract removes any
Department of the Interior concerns about potential limitations on
water supply. This is in keeping with my commitment to the New Mexico
Congressional delegation that we will attempt to resolve all procedural
requirements in order to facilitate a fair and open debate on the
merits of the proposed settlement, even though the Administration has
no position on the settlement at this time.
In developing the Determination, the Bureau of Reclamation has
worked closely with all of the Colorado River Basin States in a manner
keeping with the spirit of cooperation the Basin is currently enjoying
and is in compliance with the Colorado River Compact and the Law of the
River. I am personally thankful for the assistance of all the Basin
States in finding a way to allow the Determination to move forward.
Please contact me if you have any questions or concerns in this
matter.
Sincerely,
Dirk Kempthorne.
Attachment.--Hydrologic Determination 2007
water availability from navajo reservoir and the upper colorado river
basin for use in new mexico
I. Executive Summary
Determination as to the availability of water under long-term
service contracts for uses from Navajo Reservoir involves a projection
into the future of estimated water uses and water supplies. On the
basis of this hydrologic investigation, water depletions by the Upper
Basin states from the Upper Colorado River Basin can be reasonably
allowed to rise to an annual average of 5.76 million acre-feet (maf)
per year, exclusive of Colorado River Storage Project (CRSP) reservoir
evaporation from Lake Powell, Flaming Gorge Reservoir, and the Aspinall
Unit. This depletion level can be achieved under the same shortage
criteria upon which the allowable Upper Basin yield was determined in
the 1988 Hydrologic Determination.
This document determines the availability through at least 2060 of
water from New Mexico's Upper Basin allocation and Navajo Reservoir to
service a proposed contract for the Navajo Nation's consumptive uses in
New Mexico under the Navajo-Gallup Water Supply Project in the annual
amount of 20,780 acre-feet (af) and the Navajo Indian Irrigation
Project (NIIP) in the amount of 270,000 af per year on average over any
period of ten consecutive years. It also is likely that sufficient
water will be available from Navajo Reservoir to service the proposed
contract after the 2060 planning horizon, depending upon future
storage, hydrologic conditions, and other factors. This determination
does not guarantee that the United States will be able to deliver water
under the proposed contract without shortages in deliveries, and does
not obligate the United States to maintain storage facilities beyond
their useful lives. The proposed contract is part of a Navajo Nation
water rights settlement in the Upper Basin in New Mexico, and the
settlement provides that uses made pursuant to the contract will be
subject to administration in accordance with the Upper Colorado River
Basin Compact and New Mexico state law. Implementation of the Navajo-
Gallup Water Supply Project and the NIIP is subject to compliance with
federal environmental laws including the National Environmental Policy
Act and the Endangered Species Act.
II. Introduction
The State of New Mexico has proposed the Navajo-Gallup Water Supply
Project to provide a renewable water supply from the San Juan River for
municipal and domestic uses for Indian and non-Indian communities
located within New Mexico. Uses under the project by the Jicarilla
Apache Nation and the City of Gallup would be supplied through the
Jicarilla Apache Nation's Navajo Reservoir water supply contract
approved by Congress in 1992. Uses in New Mexico under the project by
the Navajo Nation would be supplied through a proposed new Navajo
Reservoir water supply contract that is a component of the San Juan
River Basin in New Mexico Navajo Nation Water Rights Settlement
Agreement (hereinafter referred to as the Settlement Agreement) that
the State of New Mexico and the Navajo Nation executed on April 19,
2005. The new contract also would supersede the existing Navajo
Reservoir water supply contract for the NIIP.
On June 19, 2003, the Upper Colorado River Commission resolved that
the States of the Upper Division consent to the Navajo-Gallup Water
Supply Project, provided that water diverted by the project for use in
New Mexico shall be a part of the consumptive use apportionment made to
the State of New Mexico by Article III(a) of the Upper Colorado River
Basin Compact. The maximum amount of consumptive use through the
project by the Navajo Nation in New Mexico that would be permitted in
any one year under the Settlement Agreement and the proposed contract
is 20,780 acre-feet.
Public Law 87-483 at section 11(a) requires that no long-term
contract, except contracts for the NIIP and the San Juan-Chama Project,
shall be entered into for the delivery of water stored in Navajo
Reservoir, or any other waters of the San Juan River and its
tributaries to which the United States is entitled, until the Secretary
of the Interior has determined by hydrologic investigation that
sufficient water to fulfill such contract is reasonably likely to be
available for use in the State of New Mexico under the allocations made
in Articles III and XIV of the Upper Colorado River Basin Compact, has
submitted such determination to Congress, and Congress has approved the
contract. The last such hydrologic determination was approved by the
Secretary on February 2, 1989 (Hydrologic Determination, 1988, Water
Availability from Navajo Reservoir and the Upper Colorado River Basin
for Use in New Mexico, hereinafter referred to as the 1988 Hydrologic
Determination). The 1988 Hydrologic Determination evaluated the
availability of water from the Navajo Reservoir water supply for the
Jicarilla Apache Nation's Navajo Reservoir water supply contract. The
State of New Mexico, by letter dated May 3, 2005, requested that the
1988 Hydrologic Determination be updated to evaluate the availability
of water to service the proposed Navajo-Gallup Water Supply Project.
This hydrologic investigation is made for the purpose of
contracting for water from the Navajo Reservoir water supply for the
Navajo Nation's uses in New Mexico under the Navajo-Gallup Water Supply
Project. The Bureau of Reclamation prepared this hydrologic
investigation in consultation with the Upper Colorado River Commission
because of the critical nature of this determination of the Upper Basin
water supply. The Upper Colorado River Basin Compact created and
defined several areas of responsibility for the Commission that
directly and indirectly relate to this investigation.
III. Upper Basin Yield
A. General Upper Basin Hydrology
Based on the Bureau of Reclamation's Colorado River Simulation
System (CRSS), natural flows for the period 1906-2000, the natural
runoff from the Upper Colorado River Basin averages about 15.3 maf per
year at Lee Ferry. Of this amount, approximately 2 maf per year
originates in the San Juan River Basin above Bluff, Utah. New Mexico
can only develop its Upper Basin allocation from the San Juan River and
its tributaries. The Bureau of Reclamation's Colorado River System
Consumptive Uses and Losses Report for 1996-2000 indicates that current
consumptive uses from the San Juan River Basin average about 382,400 af
per year in New Mexico and about 192,500 af per year in Colorado. Only
minor amounts of depletions are made in the San Juan River Basin in
Utah and Arizona.
B. Approach
This hydrologic investigation considers and uses many of the same
basic assumptions as the 1988 Hydrologic Determination. Both
investigations assume use of the CRSS natural flows at Lee Ferry,
minimum releases from Lake Powell of between 7.48 maf and 8.23 maf
annually, an allowable overall shortage of no more than 6 percent for a
critical period, either maintenance or use of the minimum power pools
at CRSP units, reduced storage capacity in Lake Powell due to
sedimentation, and inclusion of bank storage. The CRSS natural flows at
Lee Ferry for the period 1971-1980 were increased to reflect
recalculation of historic irrigation depletions in the Upper Basin
using the Soil Conservation Service (SCS) modified Blaney-Criddle
method with SCS effective precipitation. The revised CRSS natural flows
for 1971-1980 are consistent with the CRSS natural flows at Lee Ferry
determined for the remainder of the 1906-2000 period of record. Also,
sedimentation in Lake Powell was adjusted to reflect a 2060 planning
horizon, and a 4 percent bank storage factor was used in this
investigation consistent with Reclamation's current CRSS model.
Neither the Lower Division states nor the Upper Colorado River
Commission agree with the modeling assumption for the objective minimum
release used in this report. At the request of the Commission, this
hydrologic investigation considers for planning purposes both the
objective minimum release of 8.23 maf and a minimum release from Lake
Powell of 7.48 maf annually. However, this hydrologic determination
does not quantify the Colorado River Compact Article III(c) requirement
or make or rely on a critical compact interpretation regarding Article
III(c). The 1988 Hydrologic Determination also showed the Upper Basin
yields under these minimum release scenarios.
Mass balance analyses were used to analyze potential water use by
the Upper Basin under 2060 conditions. The mass balance considers Upper
Basin reservoir storage, natural flows at Lee Ferry, deliveries to the
Lower Basin, consumptive use demands in the Upper Basin, and CRSP
evaporation as a function of storage volume. All existing Upper Basin
storage capacity was included in the analysis because all storage
supports water use in the Upper Basin and impacts stream flows. The
CRSP and non-CRSP reservoirs as groups were assumed to be the same
percent full each year, and CRSP storage was assumed to be distributed
between units in accordance with the average historic storage
distribution. The CRSP reservoir evaporation that is used in the mass
balance analyses includes evaporation from Lake Powell, Flaming Gorge
Reservoir, and the Aspinall Unit that is shared among the Upper
Division States, but excludes evaporation from Navajo Reservoir which
is chargeable to the states based on use. Shared CRSP reservoir
evaporation is modeled using a regression equation relating historic
shared CRSP reservoir evaporation from Lake Powell, Flaming Gorge
Reservoir, and the Aspinall Unit to the aggregate historic storage
volume in these reservoirs plus Navajo Reservoir. Evaporation equations
were developed for both active and live storage, and were applied to
estimate annual shared CRSP evaporation based upon yearly reservoir
storage volume (surface area). The 1988 Hydrologic Determination
considered variations in shared CRSP reservoir evaporation with storage
for conducting statistical trace analyses to evaluate possible
frequencies and magnitudes of shortages; however, it deducted a long-
term average shared CRSP reservoir evaporation of 0.52 maf per year
from the critical-period Upper Basin yield of at least 6.0 maf/yr to
determine the amount of water available for Upper Basin uses through
the critical period.
C. Results
Mass balance analyses were performed for various combinations of
storage, Lower Basin deliveries, and overall shortages to evaluate the
allocation of water to the Upper Basin (see mass balance analyses
provided in Appendix A). The following is a summary of the results of
the analyses:
------------------------------------------------------------------------
Minimum Yield Yield with
Lower Basin without 6% Overall
Storage Assumption Delivery Shortages Shortages
(maf) (maf) (maf)
------------------------------------------------------------------------
Maintain minimum power pools.. 8.25 5.55 5.79
7.50 6.30 6.57
Use minimum power pools....... 8.25 5.72 5.98
7.50 6.47 6.76
------------------------------------------------------------------------
The yield for this analysis is defined as the amount of water
available at Lee Ferry for use, on average, by the Upper Basin,
exclusive of shared CRSP reservoir evaporation. Shortages in the above
table are defined as 6 percent or less overall computed shortage for
any period of 25 consecutive years consistent with the 1988 Hydrologic
Determination. Results are shown for minimum Lower Basin deliveries of
8.25 maf and 7.50 maf as was done in the 1988 Hydrologic Determination.
The analyses in this investigation should not be construed to prejudice
the positions of either the Upper Colorado River Commission or the
States of the Lower Division as to the interpretation or administration
of Article Ill of the Colorado River Compact.
For those analyses that use an allowable or tolerable overall
shortage of 6 percent or less of the use over any period of 25
consecutive years, the results indicate that there would be 5 years of
shortage to meet all demands on the Upper Basin out of 95 years of
record used in this investigation. However, the annual amounts of
computed shortages for those five years would not fully materialize
because Upper Basin consumptive uses will be below average under
critical period hydrology due to physical water supply shortages at the
sites of use in the Upper Basin. For example, the natural flow at Lee
Ferry for 1977 was only 5.55 maf, and severe water supply shortages
occurred throughout the Upper Basin in that year. The computations of
shortage in this analysis give conservatively large estimates of annual
shortages at Lee Ferry and do not fully reflect all factors, including
physical shortages in the Upper Basin that might contribute or relate
to a shortage condition at any given time. The computed shortages in
this investigation do not equate to administrative calls to curtail
Upper Basin uses.
D. Comparison to 1988 Hydrologic Determination
The 1988 Hydrologic Determination concluded that the total Upper
Basin yield, including CRSP reservoir evaporation, is at least 6.0 maf
per year for the 1953-1977 critical period hydrology with a 6 percent
allowable overall shortage for the period. Under the conditions assumed
in the current investigation, the shared CRSP evaporation varies with
CRSP storage assumptions and storage levels. Assuming an average annual
Upper Basin use of 5.79 maf, an annual Lower Basin delivery of 8.25
maf, and maintenance of the power pools, the shared CRSP evaporation
would range from an average of about 0.25 maf per year over the worst
25-year period of reservoir storage draw down (1953-1977) to an average
of about 0.49 maf per year over the period of record used in the
analysis (1906-2000). Thus, the total Upper Basin depletion, including
both Upper Basin uses and CRSP reservoir evaporation, would average
about 6.04 maf per year or more over any period of 25 consecutive
years. The total Upper Basin depletion amount for this scenario for the
1953-1977 period is comparable to the total Upper Basin depletion of
6.0 maf per year determined to be available for the period by the 1988
Hydrologic Determination. The difference is due to the revisions made
to the CRSS natural flows for 1971-1980. If the minimum power pools are
used, the shared CRSP reservoir evaporation is reduced due to increased
reservoir storage draw downs.
IV. Water Use Projections
A. Upper Basin
The Upper Colorado River Commission last approved depletions
schedules for the Upper Division States for planning purposes in 1999.
The depletions schedules, dated January 2000, project that the total
Upper Basin use exclusive of shared CRSP reservoir evaporation will
average about 5.37 maf per year under 2060 development conditions.
Unless additional Upper Basin water development occurs by 2060 as
compared to the January 2000 depletions schedules, the Upper Basin use
may average less than about 5.40 maf per year from now through 2060.
The time required to develop the Upper Basin allocation reduces risk of
shortage within the 2060 planning horizon.
B. State of New Mexico
For use in this investigation, the New Mexico Interstate Stream
Commission provided the Bureau of Reclamation with a preliminary
revised schedule of anticipated depletions through 2060 from the Upper
Basin in New Mexico dated May 2006 (see Appendix B). The revised
depletions schedule includes irrigation depletions calculated using the
SCS modified Blaney-Criddle method with SCS effective precipitation so
that demands and supply for this hydrologic investigation are evaluated
using consistent methodologies.
The irrigation depletions for the Navajo Nation's irrigation
projects are water right depletion amounts provided by the Settlement
Agreement. Both this hydrologic investigation and the 1988 Hydrologic
Determination assume use of the full depletion amount for the NIIP.
This is a conservative assumption because the total NIIP depletion
right is not expected to be fully utilized under normal farm management
practices. The revised depletions schedule does not include New
Mexico's allocation of shared CRSP reservoir evaporation. The revised
New Mexico depletions schedule shows a total anticipated depletion of
642,000 af per year, on average, for uses in New Mexico under 2060
development conditions. This represents an increase in New Mexico's
total Upper Basin depletion, excluding shared CRSP reservoir
evaporation, of 23,000 af per year, or about 0.02 maf per year, as
compared to the January 2000 depletions schedules.
V. Probabilities of Calls to Curtail Upper Basin Uses
The 1988 Hydrologic Determination included a probabilistic risk
analysis of administrative calls to curtail Upper Basin uses that
indicated that: (1) such calls would occur rarely at an Upper Basin
demand level of 6.1 maf per year, though their effects could have
significant impact to the Upper Basin; and (2) the frequency and
magnitude of such calls would diminish rapidly below this demand level.
The risk analysis was made using the CRSS model. It is not necessary
for this investigation to duplicate such a risk analysis.
The computations of shortage in this current investigation give
conservatively large estimates of annual shortages at Lee Ferry and do
not fully reflect all factors, including physical shortages in the
Upper Basin that might contribute or relate to a shortage condition at
any given time. While this investigation uses a 2060 reservoir storage
sedimentation condition for Lake Powell, a risk analysis should vary
the storage development and sedimentation conditions over time. In
addition, it will take decades to develop the Upper Basin allocation.
Therefore, risk of shortage is reduced within a 2060 planning horizon.
Even using the CRSS model, computed shortages would not necessarily
equate to administrative calls to curtail Upper Basin uses.
VI. Physical Availability of Water from Navajo Reservoir
The Bureau of Reclamation, using a detailed hydrologic model for
the San Juan River Basin, has evaluated the physical availability of
water from Navajo Reservoir and the San Juan River for the Navajo-
Gallup Water Supply Project, taking into account, among other things,
the habitat needs of San Juan River populations of fish species listed
as endangered under the Endangered Species Act. The physical water
supply analysis contained in the Biological Assessment, Navajo-Gallup
Water Supply Project, dated August 16, 2005, indicates that sufficient
water is likely to be available from the Navajo Reservoir water supply
for the Navajo Nation's uses under the project. Although the depletions
for individual uses in New Mexico that were used in the Biological
Assessment differ slightly from those in New Mexico's May 2006 revised
depletions schedule, the physical water supply analysis in the
Biological Assessment assumes up to about 640,500 af per year of
depletion, on average, in New Mexico from the San Juan River. This
amount of total average depletion in New Mexico is not significantly
different than the amount of total average depletion in New Mexico
shown in the May 2006 revised New Mexico depletions schedule under 2060
development conditions.
VII. Conclusions
It is concluded that based on the analysis performed by Reclamation
in consultation with the Upper Colorado River Commission, the Upper
Basin yield and New Mexico water allocation needed to support New
Mexico's revised Upper Basin depletions schedule are reasonably likely
to be available. The mass balance analyses results are sufficient to
conclude that: (1) the Upper Basin yield is at least 5.76 maf per year,
on average, excluding shared CRSP reservoir evaporation; (2) New
Mexico's Upper Basin allocation is at least 642,400 af per year,
excluding shared CRSP reservoir evaporation; and (3) the total
anticipated average annual consumptive use in New Mexico from the Upper
Basin, including Navajo Reservoir evaporation of 642,000 af per year as
shown in the revised New Mexico depletions schedule is not likely to
exceed New Mexico's Upper Basin allocation. This conclusion is reached
assuming full use of the Navajo Nation's proposed depletion rights
under the Settlement Agreement for both the Navajo-Gallup Water Supply
Project and the NIIP.
Based upon this hydrologic investigation for a planning horizon
through 2060, the May 2006 revised New Mexico depletions schedule, and
the Biological Assessment for the Navajo-Gallup Water Supply Project,
sufficient water is reasonably likely to be available from the Navajo
Reservoir water supply through at least 2060 to fulfill the contract
that is proposed by the Settlement Agreement to provide water for the
Navajo Nation's uses in New Mexico under the Navajo-Gallup Water Supply
Project and the NIIP. If the term of the contract extends beyond 2060,
or is perpetual as proposed by the Settlement Agreement, the risk of
shortages in deliveries under the contract may increase after 2060
depending upon future storage, hydrologic conditions, and other
factors. Section 11(a) of Public Law 87-483 allows for contracting of
water from Navajo Reservoir up to a total amount that, in the event of
shortage, still results in a reasonable amount of water being available
for the diversion requirements of the NIIP and the San Juan-Chama
Project.
VIII. Disclaimers
A. Interstate Compacts and Federal Laws
Nothing in this report is intended to interpret the provisions of
the Colorado River Compact (45 Stat. 1057), the Upper Colorado River
Basin Compact (63 Stat. 31), the Water Treaty of 1944 between the
United States of America and the United Mexican States (59 Stat. 1219),
the decree entered by the Supreme Court of the United States in Arizona
v. California. et al. (376 U.S. 340), the Boulder Canyon Project Act
(45 Stat. 1057), the Boulder Canyon Project Adjustment Act (54 Stat.
774), the Colorado River Storage Project Act (70 Stat. 105), or the
Colorado River Basin Project Act. (82 Stat. 885). Implementation of the
Navajo-Gallup Water Supply Project and the NIIP is subject to
compliance with federal environmental laws including the National
Environmental Policy Act and the Endangered Species Act.
B. Proposed Navajo Reservoir Water Contract
This determination is not to be construed as acceptance by the
Department of the Interior of the terms of the Settlement Agreement,
including the terms of the proposed contract. This determination also
does not guarantee that the United States would be able to deliver
water under the proposed contract without shortages in deliveries on
account of drought or other causes outside the control of the
Secretary. Nothing in this determination shall be construed to impose
on the United States any obligation to maintain CRSP storage
facilities, including Navajo Dam and Reservoir, or NIIP or Navajo-
Gallup Water Supply Project facilities beyond their useful lives or to
take extraordinary measures to keep these facilities operating.
list of appendices
APPENDIX A--Mass Balance Analysis*
---------------------------------------------------------------------------
* Documents have been retained in committee files.
---------------------------------------------------------------------------
APPENDIX B--Reservoir Storage*
APPENDIX C--CRSP Evaporation Analysis*
APPENDIX D--New Mexico Depletion Schedule*
APPENDIX E--Upper Colorado River Commission Resolution**
---------------------------------------------------------------------------
** See Appendix 2.
---------------------------------------------------------------------------
______
2003 RESOLUTION OF THE UPPER COLORADO RIVER COMMISSION
regarding the use and accounting of upper basin water supplied to the
lower basin in new mexico by the proposed navajo-gallup water supply
project
WHEREAS, part of the State of New Mexico is within the Upper Basin
and part is within the Lower Basin as defined in Article II of the
Colorado River Compact (45 Stat. 1057); and
WHEREAS, New Mexico has proposed the Navajo-Gallup Water Supply
Project to divert water from the Upper Basin to serve communities
located within the Lower Basin in New Mexico; and
WHEREAS, New Mexico needs to provide a water supply for municipal,
industrial, commercial and domestic purposes to Navajo and non-Indian
communities located within the Lower Basin in New Mexico that do not
have an adequate Lower Basin source of water; and
WHEREAS, Subsection 303(d) of Public Law 90-537, the Colorado River
Basin Project Act, authorized a thermal generating plant to be located
within the State of Arizona and provided that if the plant was served
by water diverted from the drainage area of the Colorado River system
above Lee Ferry such consumptive use of water would be a part of the
consumptive use apportioned to the State of Arizona by Article III (a)
of the Upper Colorado River Basin Compact (63 Stat. 31) regardless of
whether the plant was located in the Upper Basin or the Lower Basin;
and
WHEREAS, the states of Colorado, New Mexico, Utah and Wyoming all
support the proposed Navajo-Gallup Water Supply Project, but the states
are not in agreement as to whether, under the Law of the River, New
Mexico may use a part of its Upper Basin apportionment to serve uses in
the Lower Basin portion of New Mexico, without obtaining the consent of
the other states. However, in the spirit of comity, and without
prejudice to the position of any state regarding these unresolved
issues, all the states support and to the extent necessary consent to
the Navajo-Gallup Water Supply Project in New Mexico.
NOW, THEREFORE, BE IT RESOLVED by the Upper Colorado River
Commission that the States of Colorado, New Mexico, Utah and Wyoming,
support and to the extent necessary consent to the diversion of water
from the Upper Basin for use in the Lower Basin solely within New
Mexico via the proposed Navajo-Gallup Water Supply Project; provided,
that any water so diverted by said project to the Lower Basin portion
of New Mexico, being a depletion of water at Lee Ferry, shall be a part
of the consumptive use apportionment made to the State of New Mexico by
Article III (a) of the Upper Colorado River Basin Compact; and
BE IT FURTHER RESOLVED, that the use of any return flows which
result from use of water through the Navajo-Gallup Water Supply Project
within the Lower Basin shall be subject to applicable laws; and
BE IT FURTHER RESOLVED, that nothing resulting from the
implementation of this Resolution shall limit the right or ability of
any Upper Basin State to develop the full apportionment made to it
under the Colorado River Compact and the Upper Colorado River Basin
Compact; and,
BE IT FURTHER RESOLVED, that the construction and operation of, and
use of water through, the Navajo-Gallup Water Supply Project shall be
subject to all other applicable provisions of law; and,
BE IT FURTHER RESOLVED, that the Upper Colorado River Commission
supports such Congressional action as may be necessary to authorize the
Navajo-Gallup Water Supply Project.
certificate
I, WAYNE E. COOK, Executive Director and Secretary of the Upper
Colorado River Commission, do hereby certify that the above Resolution
was adopted by the Upper Colorado River Commission at its Meeting held
at the Half Moon Lake Resort near Pinedale, Wyoming on June 17, 2003.
Wayne E. Cook,
Executive Director and Secretary.
______
WITNESS my hand this 19th day of June, 2003.
2006 RESOLUTION OF THE UPPER COLORADO RIVER COMMISSION
regarding the availability of water from navajo reservoir for navajo
nation uses within the state of new mexico
WHEREAS, the State of New Mexico has proposed the Navajo-Gallup
Water Supply Project to provide a needed renewable water supply from
the San Juan River for municipal and domestic uses for Indian and non-
Indian communities located within New Mexico in both the Upper Basin
and the Lower Basin; and
WHEREAS, the State of New Mexico and the Navajo Nation on April 19,
2005, executed the San Juan River Basin in New Mexico Navajo Nation
Water Rights Settlement Agreement (the ``Settlement Agreement''), which
is conditioned upon, among other things, the implementation of the
Navajo Nation components of the Navajo-Gallup Water Supply Project
within New Mexico; and
WHEREAS, the source of water supply for the proposed Navajo-Gallup
Water Supply Project would be Navajo Reservoir and the San Juan River
in New Mexico; and
WHEREAS, water from Navajo Reservoir and the San Juan River would
be delivered to the proposed Navajo-Gallup Water Supply Project to meet
the water demands of Navajo Nation communities in New Mexico through a
proposed Settlement Contract between the United States, acting through
the Secretary of the Interior, and the Navajo Nation (Appendix 4 to the
Settlement Agreement); and
WHEREAS, Public Law 87-483 at section 11(a) requires that no new
long-term contracts `` . . . shall be entered into for the delivery of
water stored in Navajo Reservoir or any other waters of the San Juan
River and its tributaries, as aforesaid, until the Secretary has
determined by hydrologic investigations that sufficient water to
fulfill said contract is reasonably likely to be available for use in
the State of New Mexico during the term thereof under the allocations
made in articles III and XIV of the Upper Colorado River Basin compact,
and has submitted such determination to the Congress of the United
States and the Congress has approved such contracts''; and
WHEREAS, pursuant to Public Law 87-483, and in furtherance of the
Jicarilla Apache Tribe Water Rights Settlement Act of 1992 and the
Navajo Reservoir water supply contract approved by said Act, the
Secretary of the Interior on February 2, 1989, approved the report on
``Hydrologic Determination, 1988, Water Availability from Navajo
Reservoir and the Upper Colorado River Basin for Use in New Mexico''
(the ``1988 Hydrologic Determination''); and
WHEREAS, the 1988 Hydrologic Determination evaluated the
availability of water from the Navajo Reservoir supply for uses in New
Mexico through the 2040 planning horizon; and
WHEREAS, an update and extension to the 1988 Hydrologic
Determination is needed to evaluate the availability of water from the
Navajo Reservoir supply through a 2060 planning horizon under the
allocation of water made to the State of New Mexico by the Upper
Colorado River Basin Compact for the purpose of furthering
Congressional legislative approval of the Settlement Agreement, the
authorization of the proposed Navajo-Gallup Water Supply Project, and
the legislative approval of the proposed Settlement Contract for the
Navajo Nation's project uses in New Mexico; and
WHEREAS, the proposed Settlement Contract between the United States
and the Navajo Nation would provide water supplies for Navajo Nation
uses in New Mexico under both the Navajo-Gallup Water Supply Project
and the Navajo Indian Irrigation Project which was authorized by Public
Law 87-483, and would supersede the existing Navajo Reservoir water
supply contract for the Navajo Indian Irrigation Project; and
WHEREAS, the U.S. Bureau of Reclamation has presented to the Upper
Colorado River Commission for its consideration a draft hydrologic
determination, dated May 2006, that evaluates the availability of water
from the Navajo Reservoir supply through 2060 and shows: (1) at least
5.76 million acre-feet of water is reasonably available annually for
use by the Upper Basin, exclusive of reservoir evaporation at Lake
Powell, Flaming Gorge Reservoir and the Aspinall Unit reservoirs of the
Colorado River Storage Project; and (2) sufficient water is reasonably
likely to be available from the Navajo Reservoir supply to fulfill the
proposed Settlement Contract for the Navajo Nation's uses in New Mexico
under the Navajo-Gallup Water Supply Project and the Navajo Indian
Irrigation Project, in addition to existing Navajo Reservoir water
supply contracts for other uses, under the allocations made to New
Mexico in Articles III and XIV of the Upper Colorado River Basin
Compact; and
WHEREAS, the Settlement Agreement would provide at subparagraph
9.3.1: ``The Navajo Nation and the United States agree that the State
of New Mexico may administer in priority water rights in the San Juan
River Basin in New Mexico, including rights of the Navajo Nation, as
may be necessary for New Mexico to comply with its obligations under
interstate compacts and other applicable law''; and
WHEREAS, the Upper Colorado River Commission supports water
resource development in the Upper Colorado River Basin to enable the
Upper Division States to fully develop their compact apportionments of
Colorado River water while meeting compact obligations relating to the
flow of the Colorado River at Lee Ferry; and
WHEREAS, it is the position of the Upper Colorado River Commission
and the Upper Division States that, with the delivery at Lee Ferry of
75 million acre-feet of water in each period of ten consecutive years,
the water supply available in the Colorado River System below Lee Ferry
is sufficient to meet the apportionments to the Lower Basin provided
for in Articles III (a) and III (b) of the Colorado River Compact; and
WHEREAS, it is the position of the Upper Colorado River Commission
and the Upper Division States that the obligation of the Upper Basin
under Article III(c) of the Colorado River Compact to deliver water
toward the Mexican Treaty obligation does not require the delivery at
Lee Ferry of 0.75 million acre-feet of water annually; and
WHEREAS, the Upper Colorado River Commission anticipates that the
Upper Division States will take all actions necessary to ensure that
all Upper Basin States have access to their respective apportionments
as specified in the Upper Colorado River Basin Compact; and
WHEREAS, the Upper Colorado River Commission on June 19, 2003,
resolved that: (1) ``the States of Colorado, New Mexico, Utah and
Wyoming, support and to the extent necessary consent to the diversion
of water from the Upper Basin for use in the Lower Basin solely within
New Mexico via the proposed Navajo-Gallup Water Supply Project;
provided, that any water so diverted by said project to the Lower Basin
portion of New Mexico, being a depletion of water at Lee Ferry, shall
be a part of the consumptive use apportionment made to the State of New
Mexico by Article III (a) of the Upper Colorado River Compact;'' and
(2) ``the Upper Colorado River Commission supports such Congressional
action as may be necessary to authorize the Navajo-Gallup Water Supply
Project.''
NOW, THEREFORE, BE IT RESOLVED by the Upper Colorado River
Commission, that the Commission supports Congressional action to: (1)
approve the Settlement Agreement; (2) authorize the proposed Navajo-
Gallup Water Supply Project; and (3) approve the proposed Settlement
Contract for the Navajo Nation's uses in New Mexico from the Navajo
Reservoir supply under the Navajo-Gallup Water Supply Project and the
Navajo Indian Irrigation Project.
BE IT FURTHER RESOLVED, that while the Upper Colorado River
Commission does not endorse all of the study assumptions used by the
Bureau of Reclamation in its May 2006 draft hydrologic determination,
including an assumption of a 6 percent allowable overall shortage, and
specifically disagrees with the modeling assumption of a minimum Upper
Basin delivery of 8.25 million acre-feet annually at Lee Ferry, the
Commission supports a determination by the Secretary of the Interior
that at least 5.76 million acre-feet of water is available annually for
use by the Upper Basin, exclusive of reservoir evaporation at Lake
Powell, Flaming Gorge Reservoir and the Aspinall Unit reservoirs of the
Colorado River Storage Project.
BE IT FURTHER RESOLVED, that the Upper Colorado River Commission
supports a determination by the Secretary of the Interior that
sufficient water is reasonably likely to be available to fulfill the
proposed Settlement Contract for the Navajo Nation's uses in New Mexico
from the Navajo Reservoir supply under the Navajo-Gallup Water Supply
Project and the Navajo Indian Irrigation Project, in addition to
existing Navajo Reservoir water supply contracts for other uses, under
the allocations made to New Mexico in Articles III and XIV of the Upper
Colorado River Basin Compact.
BE IT FURTHER RESOLVED, that nothing in this Resolution, or
resulting from the adoption of this Resolution, shall limit the right
or ability of any Upper Basin State to develop the full apportionment
made to it under the Colorado River Compact and the Upper Colorado
River Basin Compact.
BE IT FURTHER RESOLVED, that a copy of this resolution be
transmitted to the Regional Director, Upper Colorado Region, Bureau of
Reclamation, Salt Lake City, Utah.
certificate
I, Don A. Ostler, Executive Director and Secretary of the Upper
Colorado River Commission, do hereby certify that the Upper Colorado
River Commission adopted the above Resolution at its regular meeting
held in Jackson Hole, Wyoming, on June 5, 2006.
WITNESS my hand this 9th day of June 2006.
DON A. OSTLER,
Executive Director and Secretary.
______
Statement of Susan Bitter Smith, President, Board of Directors, Central
Arizona Water Conservation District
The Central Arizona Water Conservation District (CAWCD) is pleased
to present written testimony regarding S. 1171, the ``Northwestern New
Mexico Rural Water Projects Act.''
CAWCD is a political subdivision of the State of Arizona, governed
by an elected 15-member board of directors. CAWCD was created in 1971
for the purpose of repaying the reimbursable costs of construction of
the Central Arizona Project, authorized by the Colorado River Basin
Project Act of 1968. CAWCD has since assumed responsibility for
operating and maintaining the Project.
CAWCD cannot support this legislation in its current form because
(1) it fails to resolve the Navajo Nation's claims to the Lower
Colorado River and Little Colorado River in Arizona and (2) it fails to
resolve litigation filed by the Nation challenging Interior Department
initiatives that are vital to the Central Arizona Project and other
Colorado River water users in the Lower Basin. The legislation also
fails to address critical issues related to its potential impact on the
Law of the Colorado River. All of these matters must be addressed
before the bill is permitted to move forward.
This bill would authorize a settlement of the water rights claims
of the Navajo Nation to the San Juan River in New Mexico and also
provide funding for projects to deliver San Juan water to Window Rock
and Gallup. The San Juan River is a tributary to the Colorado River,
and the bill affects the accounting for Colorado River water required
by the 1922 Colorado River Compact and the United States Supreme
Court's 1964 Decree in Arizona v. California, the decision that
confirmed that Arizona is entitled to 2.8 million acre feet of water
each year from the Lower Colorado River. Most of that water is
delivered to central and southern Arizona through the Central Arizona
Project. While the New Mexico bill would affect Arizona's Colorado
River entitlement, it fails to resolve the claims of the Navajo Nation
to Arizona's water supplies or to require, as it should, that those
claims be settled before the Nation receives the benefits of any water
rights settlement.
The Navajo Nation has asserted that it has rights to water from the
Colorado River that are superior to the rights of the Central Arizona
Project. The Nation has sued the United States in federal district
court here in Phoenix in an effort to compel the Secretary of the
Interior to assert those rights on the Nation's behalf. Unless and
until the Secretary takes steps to resolve the Nation's claims to the
Colorado River, the Nation seeks to stop the Secretary from
implementing important programs put in place to better manage the water
supplies of the Lower Colorado River for the benefit of the Central
Arizona Project and others.
In a separate action, the Navajo Nation has also sought to prevent
the required court approval of another Indian water rights settlement
that is vital to the citizens of central Arizona, a comprehensive water
rights settlement with the Gila River Indian Community. This
settlement, which was decades in the making, was authorized by the
Arizona Water Settlements Act of 2004, but if the Navajos succeed in
their challenge, all of the Arizona water settlements authorized by
that act, including the Gila River settlement, will fail. Since the
water rights of the Navajo Nation are not affected by the Gila River
settlement, as a lower court has already found, one can only conclude
that the Navajo Nation is seeking to hold the Gila River settlement
hostage until its own water rights claims are resolved.
These actions by the Navajo Nation lead us to conclude that we
could only support authorization of a New Mexico settlement with the
Navajo Nation if an Arizona settlement with the Nation is also
concluded and included in the authorizing legislation. While New Mexico
may object to this, it shouldn't. After all, New Mexico demanded and
received significant benefits, in the form of project authorizations
and money for that state, in the Arizona Water Settlements Act of 2004.
From a public policy perspective, an Arizona settlement of the
Navajo Nation's water rights claims should proceed hand in glove with a
New Mexico settlement. As it stands, the New Mexico bill fails to deal
comprehensively with the Navajos' claims to the river systems that
cross or border the Navajo Reservation. The Navajo Reservation is the
largest Native American reservation in the United States. It occupies
parts of three states, but by far the largest part of the Reservation,
as well as the greatest share of the Reservation population, is
situated in Arizona. Within Arizona, the northwestern portion of the
Navajo Reservation is near the mainstream of the Lower Colorado River,
and the Little Colorado River traverses the southern portion of the
Reservation. If anything, priority should be given to settlement of the
Nation's claims to the waters of these rivers. Including a settlement
of the Nation's Arizona claims in the New Mexico bill would go a long
way toward fixing the public policy problems associated with the
current version of this legislation.
The Central Arizona Project has long supported the comprehensive
settlement of Indian water rights claims. Our organization has
participated in a number of such settlements, including most recently,
the settlement of the claims of the Gila River Indian Community, the
largest Indian water rights settlement in Arizona's history. While
successfully crafting a settlement agreement is never easy, we are
fully committed to doing the hard work necessary to achieve an Arizona
settlement with the Navajo Nation, and to accomplishing that in a
timely way, so that congressional authorization of an Arizona
settlement can be included in what is now a New Mexico only bill.
We look forward to the opportunity to work with you, the State of
New Mexico, and the Navajo Nation to settle the claims of the Navajo
Nation to the San Juan and the Lower and Little Colorado River basins,
and to prepare a comprehensive settlement act that addresses the needs
of all affected parties.
______
Central Arizona Project,
Phoenix, AZ, June 21, 2007.
Hon. Jeff Bingaman,
Chairman, Senate Energy and Natural Resources Committee, 304 Dirksen
Senate Building, Washington, DC.
Subject: S. 1171, the ``Northwestern New Mexico Rural Water Projects
Act''
Dear Chairman Bingaman: We cannot support this bill as introduced
because (1) it fails to resolve the Navajo Nation's claims to the Lower
Colorado River and Little Colorado River in Arizona and (2) it fails to
resolve litigation filed by the Nation challenging Interior Department
initiatives that are vital to the Central Arizona Project and other
Colorado River water users in the Lower Basin. The legislation also
fails to address critical issues related to its potential impact on the
Law of the Colorado River. All of these matters must be addressed
before the bill is permitted to move forward.
This bill would authorize a settlement of the water rights claims
of the Navajo Nation to the San Juan River in New Mexico and also
provide funding for projects to deliver San Juan water to Window Rock
and Gallup. The San Juan River is a tributary to the Colorado River,
and the bill affects the accounting for Colorado River water required
by the 1922 Colorado River Compact and the United States Supreme
Court's 1964 Decree in Arizona v. California, the decision that
confirmed that Arizona is entitled to 2.8 million acre feet of water
each year from the Lower Colorado River. Most of that water is
delivered to central and southern Arizona through the Central Arizona
Project. While the New Mexico bill would affect Arizona's Colorado
River entitlement, it fails to resolve the claims of the Navajo Nation
to Arizona's water supplies or to require, as it should, that those
claims be settled before the Nation receives the benefits of any water
rights settlement.
The Navajo Nation has asserted that it has rights to water from the
Colorado River that are superior to the rights of the Central Arizona
Project. The Nation has sued the United States in federal district
court here in Phoenix in an effort to compel the Secretary of the
Interior to assert those rights on the Nation's behalf. Unless and
until the Secretary takes steps to resolve the Nation's claims to the
Colorado River, the Nation seeks to stop the Secretary from
implementing important programs put in place to better manage the water
supplies of the Lower Colorado River for the benefit of the Central
Arizona Project and others.
In a separate action, the Navajo Nation has also sought to prevent
the required court approval of another Indian water rights settlement
that is vital to the citizens of central Arizona, a comprehensive water
rights settlement with the Gila River Indian Community. This
settlement, which was decades in the making, was authorized by the
Arizona Water Settlements Act of 2004, but if the Navajos succeed in
their challenge, all of the Arizona water settlements authorized by
that act, including the Gila River settlement, will fail. Since the
water rights of the Navajo Nation are not affected by the Gila River
settlement, as a lower court has already found, one can only conclude
that the Navajo Nation is seeking to hold the Gila River settlement
hostage until its own water rights claims are resolved.
These actions by the Navajo Nation lead us to conclude that we
could only support authorization of a New Mexico settlement with the
Navajo Nation if an Arizona settlement with the Nation is also
concluded and included in the authorizing legislation. While New Mexico
may object to this, it shouldn't. After all, New Mexico demanded and
received significant benefits, in the form of project authorizations
and money for that state, in the Arizona Water Settlements Act of 2004.
From a public policy perspective, an Arizona settlement of the
Navajo Nation's water rights claims should proceed hand in glove with a
New Mexico settlement. As it stands, the New Mexico bill fails to deal
comprehensively with the Navajos' claims to the river systems that
cross or border the Navajo Reservation. The Navajo Reservation is the
largest Native American reservation in the United States. It occupies
parts of three states, but by far the largest part of the Reservation,
as well as the greatest share of the Reservation population, is
situated in Arizona. Within Arizona, the northwestern portion of the
Navajo Reservation is near the mainstream of the Lower Colorado River,
and the Little Colorado River traverses the southern portion of the
Reservation. If anything, priority should be given to settlement of the
Nation's claims to the waters of these rivers. Including a settlement
of the Nation's Arizona claims in the New Mexico bill would go a long
way toward fixing the public policy problems associated with the
current version of this legislation.
The Central Arizona Project has long supported the comprehensive
settlement of Indian water rights claims. Our organization has
participated in a number of such settlements, including most recently,
the settlement of the claims of the Gila River Indian Community, the
largest Indian water rights settlement in Arizona's history. While
successfully crafting a settlement agreement is never easy, we are
fully committed to doing the hard work necessary to achieve an Arizona
settlement with the Navajo Nation, and to accomplishing that in a
timely way, so that congressional authorization of an Arizona
settlement can be included in what is now a New Mexico only bill.
We look forward to the opportunity to work with you, the State of
New Mexico, and the Navajo Nation to settle the claims of the Navajo
Nation to the San Juan and the Lower and Little Colorado River basins,
and to prepare a comprehensive settlement act that addresses the needs
of all affected parties.
Sincerely,
Susan Bitter Smith,
President, Central Arizona Water Conservation District (The
District operates the Central Arizona Project).
______
Statement of the Citizens Progressive Alliance
RE: THE NORTHWEST NEW MEXICO RURAL WATER PROJECTS ACT [``S. 1171'' or
``Act'']
The Act, S. 1171, is a bipartisan scheme so bizarre that it is
understandable that the only two Committee members attending this
hearing on the 27th were the Democratic and Republican senators from
New Mexico. The Committee's Ranking Member and Chairman, New Mexico
Senators Domenici and Bingaman, Navajo Nation President Joe Shirley,
Governor Bill Richardson, and the City of Gallup are all in a mad rush
to get their hands on billions of Federal tax dollars! New Mexican
politicians warn that if the Navajo Nation's claims to San Juan River
water in New Mexico are not resolved quickly, existing non-Navajo water
users in the San Juan Basin could be displaced or have their economic
well-being seriously impaired because of the magnitude of the Navajo
Nation's ``unquantified'' right to San Juan River water in New Mexico
and a paralysis of uncertainty borne of endless litigation. State
Engineer John R. D'Antonio testified before the committee that,
``Navajo claims to the San Juan River have long-threatened the security
of water rights of all other water users within the basin.'' Navajo
Nation President Joe Shirley, Jr. warns the tribe's ``water rights
claims could exceed the amount of water apportioned to New Mexico by
the Upper Colorado River Compact'' and that this type of court ruling
would ``expose the United States to incalculable, horrific
liabilities.'' They all may be blowing smoke. Nevertheless, use of the
fear factor has worked wonders to secure other Indian water rights
settlements, and promoters of the Navajo-Gallup Water Supply Project
[``Project''] are betting such intimidation will be the winning ticket
once again.
The New Mexico Senators, the State of New Mexico, and the Navajo
Nation spoke at the Hearing with one voice to vilify the Office of
Management and Budget [``OMB''], which in Shirley's words, ``seeks to
impose an overly restrictive interpretation of the Administration's
criteria and procedures for participating in this settlement. In
particular, OMB apparently seeks to limit the federal contribution for
this water rights settlement to their assessment of the monetary
liability of the United States if it is sued by the Navajo Nation.''
What Shirley and these New Mexico politicians fail to acknowledge is
that these ``criteria and procedures'' (which will be treated in some
depth below) form the backbone of a longstanding policy designed to
protect the interests of the taxpaying public while honoring the
Federal Government's trust obligations to the tribes. OMB is obligated
to provide financial justification for the Project based on these
``criteria and procedures''. Ironically (or maybe quite predictably),
when OMB tries to exercise the proper budgetary oversight and
restraint, they are excoriated by the Committee's Chairman and Ranking
Member, the Navajo Nation, and, of course, their clients--the water
development interests. Apparently, it is the intention of the Project
promoters to sidestep or subvert the purposes of this Department of the
Interior [``DOI''] policy, and by so doing cow the OMB and avoid the
scrutiny this Project so richly deserves.
For their part, Bureau of Reclamation [``Bureau''] Commissioner
Robert Johnson and Assistant Secretary for Indian affairs Carl Artman
stated in testimony before the Committee that ``the United States was
not party to the final negotiations'' of the proposed Navajo Nation
Water Rights Settlement on the San Juan River in New Mexico [``Proposed
Settlement'']. These Administration spokesmen go on to say:
The Administration believes that the policy guidance found in
the Criteria and Procedures for the Participation of the
Federal Government in Negotiations for the Settlement of Indian
Water Rights Claims (``Criteria'') (55 Fed. Reg. 9223 (1990))
provides a flexible framework in which we can evaluate the
merits of this bill. The Criteria provide guidance on the
appropriate level of Federal contribution to the settlements,
incorporating consideration of calculable legal exposure plus
costs related to Federal trust or programmatic
responsibilities. In addition, the Criteria call for
settlements to contain non-Federal cost-share proportionate to
the benefits received by the non-Federal parties, and specify
that the total cost of a settlement to all parties should not
exceed the value of the existing claims as calculated by the
Federal Government. As we have testified previously, the
Criteria is a tool that allows the Administration to evaluate
each settlement in its unique context while also establishing a
process that provides guidance upon which proponents of
settlements can rely.
Perhaps at least one fiscally responsible member of the Committee
who will study the provisions of the Act and come to question its
promotion as good and necessary public spending, while supporting the
Administration's important evaluation criteria and procedures found in
55 Fed. Reg. 9223. Resultantly, provisions of S. 1171 which commit
taxpayers to unnecessary and unreasonable burdens and fail to fairly
address the United States' trust responsibilities to the Navajo Nation
will be rejected by the Committee.
senate committee on energy & natural resources
During the Committee's Hearing on S. 1171, the Northwestern New
Mexico Rural Water Projects Act, ranking member Senator Pete Domenici,
in his best ``Iglesias'' form, threatened Bureau Commissioner Robert
Johnson (``I'm ready to proceed, and we'll see if you're needed.''),
whined about objections to the Project's high costs by the Office of
Management & Budget, and could be heard muttering disgustedly off-mike
that he ought to ask the Army Corps of Engineers to do what the
Department of the Interior would not.
The Domenici/Bingaman bill seeks to raid the Reclamation Fund at a
time when the balance of that account is extremely low due to reduced
power revenues. Colorado River Storage Project [``CRSP''] power users
will, no doubt, be less than thrilled with this prospect, as it would
likely involve a spike in their utility rates.
Construction of the Project proposes to fully deplete most of the
35,893 AFY from the San Juan River Basin. Return flows would be
essentially nonexistent, as the Project involves a major transbasin
diversion. Colorado River Storage Project [``CRSP''] customers
belonging to the Colorado River Water Users Association might like to
know (indeed! the Committee should investigate) the value of lost power
generation due to such large new Project depletions above Lake Powell/
Glen Canyon Dam, and the predicted impact of such reduced revenues on
Western Area Power Association rates.
hydrologic determination
After decades of data collection and interpretation, including tree
ring studies by the University of Arizona and the U.S. Geological
Survey, it is well understood that when the Colorado River was first
divvied-up, overly generous allocations to the seven Colorado River
Basin States were based on erroneous predictions. Now, rather than
conducting a more objective, honest analysis of water availability, the
Bureau's water experts are tempting fate by repeating the same mistake
with a logic so twisted as to defy reason. On June 8th Secretary of the
Interior Dirk Kempthorne [``Secretary''] concurred with the Bureau of
Reclamation's [``Bureau''] new Hydrologic Determination
[``Determination''] that the amount of water needed for the Navajo-
Gallup Water Supply Project [``Project'']--centerpiece of the proposed
Navajo Nation water rights settlement on the San Juan River in New
Mexico--is now available. This water has been found, magically as it
were, by factoring in reduced evaporation rates due to our most recent
drought. So, in a marvelous bit of circuitous reasoning, we are being
asked by our government to accept the notion that we have more water
because we have less water. That's right, because less water is
evaporating from shrunken reservoirs, more water must be available.
Eureka! Less is more!
Consider for a moment the unmitigated gall of Bureau hydrologists
and New Mexico water managers demanding the Public take seriously such
a spurious argument. How in the world could reduced evaporation rates
from reservoirs at historically low levels constitute proof that there
is additional, ``new water'' in the already over-allocated Colorado
River system? This magical math in the Bureau's new Determination is
most suspect, as it has all the earmarks of a preordained outcome
designed primarily to satisfy the appetites of its client developers
for rampant growth. If true, indictments would be in order.
Smoke and mirrors may work wonders to tilt the playing field toward
benefit of corporate interests, but at the end of the day, the public
cannot drink fuzzy math or the spiraling costs of political favors.
This revamped Determination is essential for further water development
of the San Juan River because New Mexico has bumped up against the
ceiling of its share of Colorado River Compact Allocations. Based on
controversial assumptions, the Determination represents a boon to
development interests, as it invites New Mexico to further deplete and
desiccate the San Juan River, jeopardizing the hydrologic future of the
San Juan Basin and portending catastrophe for the Colorado River
system. This new Determination is an assault on reason and represents
the Bureau's latest scheme to be foisted on the unwitting taxpayers of
this country. To date there has been no resolution between San Juan-
Chama Project contractors, the Bureau, and the State of New Mexico
regarding a determination about the water that could be available to
the San Juan-Chama Project during a time of shortage and how new
contracts could affect the water supply. Given the high level of
uncertainty and concern, it would be prudent of the Committee to call
on the National Academy of Sciences to perform a critical review of the
modeling and analysis which led to the Bureau's Determination.
long hollow reservoir project & ute mountain ute indian tribe power
generating facility
How will the intent to expand water use from the La Plata River in
Colorado be reconciled with and integrated into the Proposed
Settlement, the revised Hydrologic Determination and S. 1171? Is it the
opinion of the Interior, using the rubric of less is more, that
increased diversion and storage on the La Plata River in the proposed
Long Hollow Reservoir with its concomitant and high evaporation rate
will also result in an increased water supply in the Colorado mainstem?
Put another way, is it the Secretary of the Interior's view that
substantial evaporative losses from the Long Hollow Reservoir would
actually free-up more ``new water'' and allow for additional depletions
downstream from the San Juan above Lake Powell?
Ute Mountain Ute Indian Tribe [``UMUT''] claims to San Juan River
water are senior to the Navajo Nation claims. The Ute Mountain Ute
Indian Tribe has filed a claim to water rights on the San Juan River,
and neither the United States nor the State of New Mexico has initiated
negotiations to settle these claims. The UMUT claim rights to between
7300AF and 9300AF of water for a power generation plant. The claim is
being made at the same time the Navajo Nation is working to settle its
claim on the San Juan River in New Mexico. How does the Ute Mountain
Ute claim to water for a new power generating plant square with the
Secretary's Determination? How might it affect availability of water
for the San Juan/Chama Project contractors and others in the San Juan
Basin?
navajo water rights claims
The Proposed Settlement between the Navajo Nation [``Nation''] and
the State of New Mexico shows total diversions for Navajo water
projects at 626,470 acre feet and total depletions at 322,190 acre feet
annually. This massive allocation of New Mexico's surface waters has
yet to be justified to the Public from a technical standpoint. The
citizens of New Mexico have a legal right to know the technical bases
for the tribal entitlements proposed in a Navajo settlement, and
officials have a fiduciary obligation to provide this documentation.
New Mexico and the Nation have made a declaration of the extent of the
Navajo water right, but this number is highly questionable,
undocumented as it is, and should not be accepted as an article of
faith. The technical component of any settlement entails the answers to
scientific questions, such as, ``How much water is needed by the
Tribe?'' and, ``What are the bases for quantification of the Tribe's
entitlement to water?'' While these questions have been asked, no
answers have been provided.
No one--not the New Mexico State Engineer, not the Navajo Nation,
not Bureau hydrologists--has the means to accurately measure or verify
quantities of water depleted from a stream system. Only diversion
quantities can be reliably calculated. The New Mexico State Engineer's
Office does not possess the methodology or technology necessary to
calculate consumptive usage, just as it is unable to determine the
magnitude or source of return flows to a system. The 10-year averaging
of diversions/depletions provided for in the proposed settlement
involves a carry-over allowance which is contrary to State law and the
public interest.
On October 24, 1995, former Navajo Nation President Albert Hale
opined that, ``[t]he Navajo Nation possesses sufficient `practicably
irrigable acreage' [``PIA''. within the San Juan River Basin to fully
utilize the entire flow of the San Juan River.'' What is the State
Engineer's assessment of the Navajo Nation's PIA in the San Juan Basin?
What is the Bureau's assessment of the Navajo Nation's PIA in the San
Juan Basin? If the Navajo Nation has as many practicably irrigable
acres as it claims, why are so few being irrigated? It is no secret to
New Mexico's senators or Governor that the Navajo Indian Irrigation
Project [``NIIP''] is a recurring fiscal nightmare. Recently the Navajo
Nation was forced to allocate $10 million to offset operating deficits
associated with NIIP. NIIP and the Navajo Agricultural Products
Industry's [``NAPI''] audits reveal losses of millions of dollars
annually on the operation of farm Blocks 1-8. The Navajo Nation is
already the fifteenth largest recipient of Federal crop subsides
nationally.
Given the regularity of these losses, it seems only reasonable to
predict that the irrigation of additional acreage in NAPI Blocks 9-11
would be similarly unprofitable, resulting in even greater losses. So,
increasing irrigation on the NAPI/NIIP will only add to the staggering
Public costs. In short, the evidence is clearcut that NIIP/NAPI lands
are not practicably irrigable, and the Proposed Settlement is an
affront to the sensibilities of any Committee member studious enough to
give careful consideration, because NIIP/NAPI are rooted in waste and
fraud.
Navajo PIA along with Navajo demographics in the San Juan Basin
should be carefully evaluated in the determination of Navajo water
entitlements for any realistic settlement agreement. While the
variability of significant portions of Navajo reservation land within
the San Juan Basin is indisputable, the actual ``practicability'' of
irrigating much of that land remains highly debatable. This issue of
``practicability'' is not only central to Navajo lands checker boarded
throughout the San Juan Basin. It is pertinent to the NAPI farm blocks
themselves--both those in production and those to come, because the
test of practicability speaks to the very heart of any Federal tribal
trust responsibility in a Navajo settlement.
According to the Winters doctrine, as upheld in Arizona v.
California by the Supreme Court, a Tribe shall have right to water
sufficient to irrigate all of the practicably irrigable acreage within
the borders of its reservation. The Supreme Court in Arizona v.
California ruled that application of the PIA standard is the only
``feasible and fair way'' by which reserved water rights for a Tribe
can be measured. It must follow that the only ``feasible and fair'' way
to quantify the Navajo right on the San Juan--and the first and
foremost task of State and Federal hydrologists--is to measure the PIA
of the Navajo reservation lands in the San Juan Basin. This must be
done as a matter of fairness and accuracy in order to determine the
Navajo tribal water right at issue, but to date requisite technical
studies for assessing Navajo PIA in the San Juan River Basin do not
even exist, and the basis for the Project and Proposed Settlement is
anybody's guess. Instead, fear tactics by Project promoters regarding
the possible outcome of ``prolonged'' and ``contentious'' litigation
have become an old saw similar to the color-coded Terror Alerts of
Homeland Security. A PIA analysis is pivotal as a basis for the
negotiation of any settlement, and none yet exists.
navajo indian irrigation project [niip]
The Navajo-Gallup Water Supply Project, which would cost as much as
three billion dollars if typical Bureau cost overruns materialize, is
designed to settle the Navajo Nation's claims to the San Juan River in
New Mexico. But it is hardly a secret, as we stated earlier, that the
Navajo Indian Irrigation Project, the biggest straw in the San Juan
River, habitually drowns in red ink.
For example, the American people still pay the annual operating
costs of NIIP even though the project is several decades old and
Department of Interior policy expressly forbids it. In a letter to then
Secretary Gail Norton, Navajo President Joe Shirley asserted those
costs come to about $6 million annually and that they must continue
indefinitely. The Navajo Nation leases NIIP irrigation land for farming
by non-Navajo, and they have received well over $15 million in Federal
farm subsidy payments in the last few years. Even so, the Navajo
Nation, a relatively poor tribe, recently had to come up with over $10
million in bailout funds for the tribal farming enterprise. Does this
look like the kind of operation worth an investment of hundreds of
millions, if not billions, of dollars more? After decades of funding
approaching one billion dollars, NIIP is still only seventy percent
complete. What does this say about the practicality of irrigating the
Navajo Reservation lands high above the San Juan River and the real
extent of their water right under the Winters doctrine? Will the Navajo
become accustomed to more and even greater losses? This would be a
logical presumption knowing what is known about the history of this
operation.
Thus a thorough, independent review of the NIIP/NAPI must be
conducted before any more public money is squandered on it or its
successors. Admittedly, NIIP/NAPI benefits a few Federal and Navajo
bureaucrats, but it leaves little if anything for the average Navajo.
Federal assistance should be tailored to benefit the people of the
Navajo Nation, not designed to aggrandize worn out Federal
bureaucracies such as the Bureau of Reclamation and the Bureau of
Indian Affairs. A thorough study of federally funded Indian irrigation
projects is long overdue, as is fiscal accountability to both the
public and the tribes themselves.
the northwest new mexico rural water projects act [``s. 1171'' or
``act'']
The Northwestern New Mexico Rural Water Projects Act seeks to
couple the Proposed Settlement of Navajo claims to water on the San
Juan River with a free ride for those seeking to repair deteriorating
rural water systems in northwest New Mexico. In S. 1171, Section 201,
Reclamation Water Settlement Fund [``Fund''], certain provisions seem
to be written to buy supportive silence for the Project and Proposed
Settlement by providing subsidies to rehabilitate old facilities
throughout northwest New Mexico. While this may be an effective means
of squelching opposition, provisions in the Act directing the Bureau to
administer the disbursement of funds for the repair of such rural water
systems encroach on the mission of the Department of Agriculture, which
has historically been charged with exclusive responsibilities for Rural
Development.
Implementation of S. 1171 is in no way feasible if the Reclamation
Fund, per se, cannot be relied on to be flush for decades. The Public
must be provided with certification from OMB or others competent in
reliable principles of accounting that the Reclamation Fund will, in
fact, enjoy longterm solvency with the liquidity to withstand the
eleven-year drawdown envisioned in the Act. If the Reclamation Fund is
siphoned to foot a variety of proposed Indian water rights settlements
in New Mexico, as foreseen in S. 1171, the nature of the impacts on
other social programs currently dependent on the Reclamation Fund must
be fully assessed and mitigated. In accounting for the impact of S.
1171, OMB must factor in the audacity of these two New Mexico Senators
scheming to establish an exclusive Reclamation Water Settlements Fund
in the Act, an exclusive fund which will literally double-drain the
Bureau's Reclamation Fund. Operation of the Project would substantially
reduce the Reclamation Fund due to lost power generation and increased
salinity in the Colorado River, while funds for the Project would be
allocated from that same depleted Reclamation Fund. Such a strategy is
not only fiscally unsound, it is idiotic!
anticipated cost of the project
No one is being told how much this Project could cost, and a
feasibility level, design cost estimate for the Project has not been
completed. In order to protect any Federal taxpayer commitment to
investment, a sensitivity analysis of cost estimates for this multi-
billion dollar Project must be completed. The Committee should recall
that the Bureau refused a similar request for such a sensitivity
analysis of the Animas-La Plata Project [``ALP''], only to reveal
within months that their cost estimates were off by fifty percent--this
before construction had even begun. It is our understanding, with no
users for most of ALP water and absolutely no way to deliver the water
to these make-believe users, that the costs (even without the interest
calculation) already exceed by 100 percent the original cost estimate.
Further, all of the recent big Bureau projects have surpassed by at
least 300 percent their original cost estimates. Reference the Dallas
Creek Project, the Dolores Project, and Central Arizona Project. Given
the dismal state of the Federal budget, adequate assurances are
necessary to insure the cost estimates given to Congress are not
grossly underestimated. To this end, an independent Peer Review must be
incorporated into the review process. Publication of the interest on
the public debt over the 100 year life of the project should also be
documented and made public.
alternatives
Robert Johnson and Carl Artman of the Department of the Interior
conceded this week in Senate testimony that the process for selecting
the various alternatives identified and analyzed in the Project DEIS
was inadequate. The Project as proposed by the Bureau is too expensive
and violative of existing policy. Based on this revelation that the
Department of Interior will not support any of the Project alternatives
examined in its Bureau's own DEIS, a new Environmental Impact Statement
must be prepared. Despite the New Mexico senators' attempts to fast-
track S. 1171, the Criteria & Procedures of 55FR9223 must be
implemented with full participation by the Department of Justice and
the Office of Management and Budget, in order to ensure that Federal
Trust responsibilities are honored--not just to the Navajo Nation, but
to the wider taxpaying public as well. The 55FR9223 Policy includes
provisions for an economic evaluation with a high level of assurance
that the Public's money is being well spent. The Criteria & Procedures
of 55FR9223 represent a vital safeguard against fiscal waste and
guarantee the negotiation of a just settlement for all parties.
arizona issues
The State of Arizona opposes the Act. The failure of the Department
of the Interior to implement the Criteria and Procedures for the
Participation of the Federal Government in Negotiations for the
Settlement of Indian Water Rights Claims [``Criteria & Procedures''] in
the Proposed Settlement subverts the State of Arizona's attempt to
negotiate its own water rights settlement with the Navajo Nation.
Window Rock, Arizona is located in the Lower Colorado River Basin.
Inclusion of Window Rock or any other Arizona communities within the
Project service area is at odds with the 1922 Colorado River Compact
and at odds with a traditional interpretation of the Law of the River.
Window Rock is eligible for water from the Central Arizona Project.
Since it is unclear how allocations will be made under the Act, the
Committee should request a full accounting of the water involved in the
Project. What portion comes from New Mexico's Compact allocation? What
portion comes from Colorado's Compact allocation? What portion comes
from Arizona's Compact allocation?
city of gallup
Apparently, New Mexico state representative Patti Lundstrom, who
testified to the Committee this week, expects American taxpayers to
join hands and march lockstep to ante-up at least seventy-five percent
of the Project costs for the City of Gallup. This involves a breach of
longstanding Reclamation law requiring all municipal & industrial water
costs to be paid with interest by project beneficiaries.
How are the interests of the City of Gallup pertinent to the
settlement of Navajo claims on the San Juan River? Claims by the Navajo
Nation to the San Juan River have absolutely nothing to do with the
City of Gallup. So, why is Gallup being shoehorned into this project
and the proposed Settlement? They can't afford a project on the scale
proposed in S. 1171, and they are not eligible for or entitled to the
massive federal government subsidies this multi-billion dollar Project
would require. Sure, if the Navajo Nation wants to send its NIIP
irrigation water to Gallup, so be it, but if the Federal Government is
to be an honest broker, American taxpayers should not be required to
support any part of the Navajo-Gallup Water Supply Project that is
illegal or economically infeasible.
navajo depletion guarantee
A little-known mechanism in the Project, the Navajo Depletion
Guarantee, should be analyzed in detail. How might fulfillment of the
terms of the Navajo Depletion Guarantee curtail the full operation of
the Project or interfere with San Juan-Chama Project diversions to a
host of contractors in Rio Grande Basin?
pipeline lateral system
Who will pay for the vast network of pipeline laterals necessary
for communities in Navajo Chapters intended to be served by the
Project, and how much will this cost? In his testimony, President
Shirley contends that the Navajo Nation has both the capability and
intention to construct a system of lateral water lines necessary to
provide potable water to Navajo chapters and families in the Eastern
Agency. Where will he find the money? In addition, it is the
responsibility of the Indian Health Service [``IHS''], not the Navajo
Nation, to provide such facilities for the delivery of safe water
supplies. How would IHS obtain funding for these feeder lines, when
would they be completed, and which Navajos would be left out of the
Project?
the criteria and procedures for the federal government's participation
in the negotiation of indian water rights settlements [``55fr9223/
policy/criteria & procedures''] federal register, vol.55, no.48, 9223
et seq
Both the Navajo Nation and the State of New Mexico are well (some
might say painfully) aware of the Department of the Interior's Criteria
and Procedures for the Participation by the Federal Government in
Negotiations for the Settlement of Indian Water Rights Claims.
Documents from former State Engineer Tom Turney's negotiation notebook,
obtained through ``New Mexico Inspection of Public Records Act''
requests, provide a detailed description of these ``Federal Negotiating
Guidelines''. Likewise, the Navajo Nation recognizes the overriding
authority of these Criteria and Procedures, stating:
The projected costs of these [wet water] projects is
substantial and the primary source of funding will invariably
come from the federal government. However, the Department of
the Interior's Criteria for Settlement of Indian Water Rights
requires a substantial state and local contribution. The Navajo
team understands that this settlement will require creative
innovation, and that it may require a combination of Federal
and State programmatic funding sources.
Federal employees assigned to a formal Negotiating Team are
expected to adhere to and comply with the DOI's ``Working Group in
Indian Water Settlements; Criteria and Procedures for the Participation
of the Federal Government in Negotiations for the Settlement of Indian
Water Rights Claims'', Federal Register, Vol.55, No.48, 9223 et seq
[see attached ``Policy 55FR9223''], as prescribed in a formal executive
``Policy Statement'' March 12, 1990 [``Policy''.. The DOI Policy holds
that, in settling Indian water rights claims, the Federal government
shall ensure that Indians receive equivalent benefits for rights which
they, and the United States as trustee, may release as part of a
settlement. The United States has pervasive Endangered Species Act and
Tribal trust responsibilities within the San Juan River Basin. These
are overlapping and interconnected concerns which were not adequately
addressed in the negotiation of a Proposed Settlement.
The Office of Management and Budget is assigned a definite,
indispensable role in the proper execution of the Federal Policy
55FR9223, but repeated FOIA requests have failed to produce any records
showing OMB has been involved in evaluating the terms of the Proposed
Settlement. The Government's Policy at 55FR9223, criterion no. 6,
states:
Settlements should include non-Federal cost-sharing
proportionate to the benefits received by the non-Federal
parties.
Language in S. 1171 authorizing the Navajo-Gallup Water Supply
Project allows for Federal subsidies of up to 75 percent to both the
City of Gallup and the Jicarilla Apache Tribe, requiring as little as
25 percent cost-share for the substantial benefits those non-Federal
parties are to receive through construction of the Project. In fact,
Gallup city officials have been to Washington to persuade Congress to
pay for almost all of the proposed Navajo-Gallup Water Supply Project,
claiming that even a 25 percent repayment obligation would be too rich
for this City's blood.
Four years ago, the Secretary of the Department of the Interior
established the ``Navajo-San Juan River Federal Indian Water Rights
Negotiation Team'' [``Team''] for the purpose of negotiating a
settlement of the claims of The Navajo Nation to waters within the San
Juan River Basin of Northwest New Mexico. The Team, headed initially by
DOI Solicitor Michael Schoessler (and subsequently by the Bureau's
Brian Parry), in concert with Joy Nicholopoulos (Fish & Wildlife
Service), Brad Bridgewater (Department of Justice) and the Bureau of
Indian Affair's John Cawley, have imposed absolute secrecy while
conducting a series of closed-door meetings with the Nation and the
State of New Mexico in the ``Navajo-San Juan River Federal Indian Water
Rights Negotiation''. As a direct result many legitimate stakeholders,
the Public, and representatives of the media have been arbitrarily
excluded and denied due process rights--being barred, as they have
been, from proceedings which may ultimately involve the expenditure of
billions of State and Federal dollars and undermine the value of
certain personal property holdings.
The binding DOI Policy for negotiating settlements of tribal water
claims has been in force and preserved intact for some fourteen years--
not once having been the subject of amendment, modification,
supercession or revocation. Sadly, DOI has a dismal history of
haphazard and selective enforcement of its Policy, resulting in the
repeated, irreversible betrayal of the Public Trust. Although the
Policy requires an integrated and concurrent examination of competing
claims in the San Juan River system because four Indian Tribes having
pending reserved rights claims to a severely restricted water supply,
the DOI has grossly and methodically misapplied its own Criteria &
Procedures by negotiating in piecemeal fashion with the Jicarilla
Apache, the Ute Mountain Ute and the Southern Ute Indian Tribes. Now,
apparently, this deliberate failure with respect to Policy execution is
being repeated by the DOI Team in ongoing settlement negotiations with
The Navajo Nation and the State of New Mexico.
In October 2003 the Western States Water Council and the Native
American Rights Foundation held their biennial ``Indian Water Rights
Settlement Symposium'' in Durango, Colorado. Timothy Glidden, author of
the Federal Government's long-standing Policy Statement on the
negotiation of Indian water rights claims (Criteria & Procedures),
stated that it would be impossible to make progress in tribal
settlement if a variety of interest groups and stakeholders were made
formal members of a Negotiation Team. In other words, Mr. Glidden
(former Chairman, Working Group on Indian Water Rights Settlements, and
now Contractor to the U.S. Department of the Interior, Secretary's
Office of Indian Water Rights) contends that the political, technical
and financial momentum for securing a settlement is generated, by-and-
large, through the intentional exclusion of various parties with legal
standing in the ultimate resolution and disposition of the tribal water
claims. Glidden's pronouncement is at odds with the fact that nothing
in the Policy's Criteria & Procedures direct the Interior Department to
exclude any interested party with standing from participation in the
process of negotiating the settlement of Indian water claims. As stated
above, direct requests by legitimate stakeholders to participate in the
settlement discussions were not granted. [see above ``12/09/02 letter
to Michael Schoessler''.
Numerous Freedom of Information Act [``FOIA''] requests have
confirmed that Federal Policy has not, in fact, been followed in the
Navajo settlement negotiations, just as it was not followed in the
settlement negotiations with the Jicarilla Apache, the Ute Mountain
Ute, or the Southern Ute tribes. So, while an adopted federal policy
setting forth the ``Criteria and Procedures for Indian Water Rights
Settlements'' has been in place and binding for over a decade, it has
been wantonly subverted in tribal negotiations in the San Juan River
Basin--twisted and riddled with bias in order to advance special
interests in Indian water claims at the expense of the environment,
junior water right holders, and the taxpaying public. It has become
increasingly obvious that the State and the Federal Government are
allowing non-Indian water developers to successfully use the pretext of
Indian water rights settlement negotiations as leverage and license to
engage in water speculation, further strangling western rivers and
crippling the taxpaying public.
Any settlement worth its salt must follow the guidelines
established by the Department of Interior as set forth in its published
policy for negotiating and settling Indian water rights, The Criteria
and Procedures, 55FR9223, published in the Federal Register of March
12, 1990. Among other things this policy holds that Indian settlements
involving a single river system, in this case the San Juan, must be
done so as to simultaneously evaluate and negotiate all Indian claims
on that river system. Obviously, the clear intent is to avoid the
dreaded ``unintended effect'' through piecemeal negotiations, awards,
and settlements, and the secondary taxpayer costs of undoing what was
mistakenly done through ignorance and bureaucratic imperiousness.
When concerns about the judicious application of 55FR9223 were
cited with regard to both the Animas-La Plata Project (Colorado Ute
Indian Water Rights Settlement Act) and the Navajo Dam Reoperation EIS,
they were dismissed as irrelevant. In fact, the Deputy Director of
Interior's Indian Water Rights Office, Michael Conner, Esq., now a
trusted aid to this Committee's Chairman, stated that while the policy
still stood, it only had to be observed when the Department of the
Interior found it convenient or appropriate to do so. Abuse of the
Policy continues to open the door to graft and fraud. It is past time,
whether convenient or not, for 55FR9223 to be taken seriously and for
the Federal government to forthrightly fulfill its obligations to
American citizens and the tribes.
55FR9223, the Criteria & Procedures reads as noticed as follows:
federal register / vol. 55, no. 48 / monday, march 12, 1990 / notices
page 9223
department of the interior
Working Group in Indian Water Settlements; Criteria and Procedures
for the Participation of the Federal Government in the Negotiations for
the Settlement of Indian Water Rights Claims.
AGENCY: Department of the Interior.
ACTION: Policy Statement.
SUMMARY: It is the policy of this Administration, as set forth by
President Bush on June 21, 1989, in his statement signing into law H.R.
932, the 1989 Puyallup Tribe of Indians Settlement Act, that disputes
regarding Indian water rights should be resolved through negotiated
settlements rather than litigation. Accordingly, the Department of the
Interior adopts the following criteria and procedures to establish the
basis for negotiation and settlement of claims concerning Indian water
resources.
EFFECTIVE DATE: March 12, 1990.
ADDRESSES: Comments may be addressed to: Mr. Tim Glidden,
Department of the Interior, MS6217-MIB, 18th and C Streets, NW.,
Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Mr. Tim Glidden, Chairman, Working
Group on Indian Water Settlements, 202-343-7351.
SUPPLEMENTAL INFORMATION: These criteria and procedures were
developed by the Working Group on Indian Water Settlements from the
Department of the Interior.
These criteria and procedures supersede all prior Departmental
policy regarding Indian water settlement negotiations. The criteria
provide a framework for negotiating settlements so that (1) The United
States will be able to participate in water settlements consistent with
the Federal Government's responsibilities as trustee to Indians; (2)
Indians receive equivalent benefits for rights they, and the United
States as trustee, may release as part of a settlement; (3) Indians
obtain the ability as part of each settlement to realize value from
confirmed water rights resulting from settlement; and (4) The
settlement contains appropriate cost-sharing by all parties benefiting
from the settlement.
Dated: March 6, 1990, Timothy Glidden, Chairman, Working Group on
Indian Water Settlements.
criteria and procedures for indian water rights settlements
Preamble
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 Indians.
It is the policy of this administration, as set forth by President
Bush on June 21, 1989, in his statement signing into law H.R. 932, the
1989 Puyallup Tribe of Indians Settlement Act, that disputes regarding
Indian water rights should be resolved through negotiated settlements
rather than litigation.
Accordingly, the Department of the Interior adopts the following
criteria and procedures to establish the basis for negotiation and
settlements of claims concerning Indian water resources. These criteria
and procedures supersede all prior Departmental policy regarding Indian
water settlement negotiations. The criteria provide a framework for
negotiating settlements so that (1) The United States will be able to
participate in water settlements consistent with the Federal
Government's responsibilities as trustee to Indians; (2) Indians
receive equivalent benefits for rights they, and the United States as
trustee, may release as part of a settlement; (3) Indians obtain the
ability as part of each settlement to realize value from confirmed
water rights resulting from settlement; and (4) The settlement contains
appropriate cost-sharing by all parties benefiting from the settlement.
Criteria
1. These criteria are applicable to all negotiations
involving Indian water rights claims settlements in which the
Federal Government participates. Claims to be settled through
negotiations may include, but are not limited to, claims:
(a) By tribes and U.S. Government to quantify
reserved Indian water rights.
(b) By tribes against the U.S. Government.
(c) By tribes and the U.S. Government against third
parties.
2. The Department of the Interior will support legislation
authorizing those agreements to which it is a signatory party.
3. Settlements should be completed in such a way that all
outstanding water claims are resolved and finality is achieved.
4. The total cost of the settlement to all parties should not
exceed the value of the existing claims as calculated by the
Federal Government.
5. Federal contributions to a settlement should not exceed
the sum of the following two elements:
a. First, calculable legal exposure--litigation costs
and judgment obligations if the case is lost: Federal
and non-Federal exposure should be calculated on a
present value basis taking into account the size of the
claim, value of the water, timing of the award, and
likelihood of loss.
b. Second, additional costs related to Federal trust
or programmatic responsibilities (assuming the U.S.
obligation as trustee can be compared to existing
precedence.)--Federal contributions relating to
programmatic responsibilities should be justified as to
why such contributions cannot be funded through the
normal budget process.
6. Settlements should include non-Federal cost-sharing
proportionate to the benefits received by the non-Federal
parties.
7. Settlements should be structured to promote economic
efficiency on reservations and tribal self-sufficiency.
8. Operating capabilities and various resources of the
Federal and non-Federal parties to the claims negotiations
should be considered in structuring a settlement (e.g.
operating criteria and water conservation in Federal and non-
Federal projects).
9. If Federal cash contributions are part of a settlement and
once such contributions are certified as deposited in the
appropriate tribal treasury, the U.S. shall not bear any
obligation or liability regarding the investment, management or
use of such funds.
10. Federal participation in Indian water rights negotiations
should be conducive to long-term harmony and cooperation among
all interested parties through respect for the sovereignty of
the States and tribes in their respective jurisdiction.
11. Settlements should generally not include:
a. Local contributions derived from issuing bonds
backed by or guaranteed by the Federal Government.
b. Crediting to the non-Federal share normal project
revenues that would be received in absence of a cost-
share agreement.
c. Crediting non-Federal operation maintenance, and
rehabilitation (OM&R) payments to non-Federal
construction cost obligations.
d. Imposition by the Federal Government of fees or
charges requiring authorization in order to finance the
non-Federal share.
e. Federal subsidy of OM&R costs of Indian and non-
Indian parties.
f. U.S. participation in an economically unjustified
irrigation investment; however, investments for
delivery of water for households, gardens, or domestic
livestock may be exempted from this criterion.
g. Per capita distribution of trust funds.
h. Crediting to the Federal share existing annual
program funding to tribes.
i. Penalties for failure to meet a construction
schedule. Interest should not accrue unless the
settlement does not get budgeted for as specified in
item 15 below.
j. Exemptions from Reclamation law.
12. All tangible and intangible costs to the Federal
Government and to non-Federal parties, including the
forgiveness of non-Federal reimbursement requirements to the
Federal Government and items contributed per item 8 above
should be included in calculating their respective
contributions to the settlement.
13. All financial calculations shall use a discount rate
equivalent to the current water resources planning discount
rate as published annually in the Federal Register.
14. All contractual and statutory responsibilities of the
Secretary that affect or could be affected by a specific
negotiation will be reviewed.
15. Settlement agreements should include the following
standard language: Federal financial contributions to a
settlement will normally be budgeted for, subject to the
availability of funds, by October 1 of the year following the
year of enactment of the authorizing legislation (e.g., for a
settlement enacted into law in August 1990, funding to
implement it would normally be contained in the FY 1992 Budget
request and, if appropriated, be available for obligation on
October 1, 1991).
16. Settlements requiring payment of a substantial Federal
contribution should include standard language providing for the
costs to be spread-out over more than one year.
Procedures
Phase I--Fact Finding
1. The Department of the Interior (Department) will consider
initiation of formal claims settlement negotiations when the
Indian tribe and non-Federal parties involved have formally
requested negotiations of the Secretary of the Interior
(Secretary).
2. The Department will consult with the Department of Justice
(Justice) concerning the legal considerations in forming a
negotiating team. If Department decides to establish a team,
the Office of Management and Budget (OMB) and Justice shall be
notified, in writing. Justice should generally be a member of
any negotiating team.
a. The Department's notification should include the
rationale for potential negotiations, i.e., pending
litigation and other background information about the
claim already available, makeup of the team (reason
that Justice is not a member of a team, if applicable),
and non-Federal participants in the settlement process.
b. The date of the notification marks the beginning
of the fact-finding period.
3. Not later than nine months after notification, a fact-
finding report outlining the current status of litigation and
other pertinent matters will be submitted by the team to the
Department, OMB, and Justice. The fact-finding report should
contain information that profiles the claim and potential
negotiations. The report should include:
a. A list of all involved parties and their
positions.
b. The legal history, if any, of the claim, including
such relevant matters as prior or potential litigation
or court decisions, or rulings by the Indian Claims
Commission.
c. A summary and evaluation of the claims asserted
for the Indians.
d. Relevant information on the non-Federal parties
and their positions to the claim.
e. A geographical description of the reservation and
drainage basin involved, including maps and diagrams.
f. A review and analysis of pertinent existing
contracts, statutes, regulations, and legal precedent
that may have an impact on the settlement.
g. A description and analysis of the history of the
United States' trust activities on the Indian
reservation.
4. During Phase I, II, and III, the Government (through
negotiating team or otherwise) will not concede or make
representatives on likely U.S. positions or considerations.
Phase II--Assessment and Recommendations
1. As soon as possible, the negotiating team, in concert with
Justice, will conduct and present to the Department an
assessment of the positions of all parties and a recommended
negotiating position. The purpose of the assessment is to (1)
measure all costs presuming no settlement, and, (2) measure
complete settlement costs to all the parties. The assessment
should include:
a. Costs presuming no settlement--Estimates for
quantifying costs associated with all pending or
potential litigation in question, including claims
against the United States and claims against other non-
Federal parties together with an assessment of the risk
to all parties from any aspect of the claim and all
pending litigation without a settlement. A best/worst/
most likely probability analysis of the litigation
outcome should be developed.
b. An analysis of the value of the water claim for
the Indians.
c. Costs Presuming Settlement--quantification of
alternative settlement costs to all parties. This
includes an analysis showing how contributions, other
than those strictly associated with litigation, could
lead to settlement (e.g., facilities to use water,
alternative uses of water, and alternative financial
considerations).
2. All analysis in the settlement should be presented in
present value terms using the planning rate used for evaluating
Federal water resource projects.
Phase III--Briefings and Negotiating Position
1. The Working Group on Indian Water Settlements will present
to the Secretary a recommended negotiating position. It should
contain:
a. The recommended negotiating position and
contribution by the Federal Government.
b. A strategy for funding the Federal contribution to
the settlement.
c. Any legal or financial views of Justice or OMB.
d. Tentative position on major issues expected to
arise.
2. Following the Secretary's approval of the Government's
negotiating position, Justice and OMB will be notified before
negotiations commence.
Phase IV--Negotiations Toward Settlement
1. OMB and Justice will be updated periodically on the status
of negotiations.
2. If the proposed cost to the U.S. of settlement increases
beyond the amount decided in Phase III, if the negotiations are
going to exceed the estimated time (or break down), or if
Interior proposes to make significant changes in the Government
negotiating position or in the U.S. contribution to the
settlement, the original recommendation and negotiating
position will be revised using the procedures identified above.
3. Briefings may be given to the Congressional delegations
and the Committees consistent with the Government's negotiating
position.
If nothing else, last week's Committee Hearing revealed that the
requisite Criteria & Procedures are once again being twisted beyond
recognition by proponents of the Project, the Act, and the Proposed
Settlement. The fact that OMB, a necessary participant in any such
negotiation, has been pointedly excluded from these proceedings, is an
indication that the Proposed Settlement and the Project are not
feasible and that S. 1171 constitutes abysmal legislation tailored to
satisfy special, vested interests. The general Public, interested
parties and a majority of legitimate stakeholders with their
livelihoods and heritage on the line tried desperately for years to
gain access to these closed, secret negotiations, to no avail.
Witness this letter to Michael Schoessler, DOI Team Leader Navajo-
San Juan River Federal Indian Water Rights Negotiation Team from a
group interested in good government and the thoughtful stewardship of
natural resources:
Electors Concerned about Animas Water--CAW
Farmington, NM, December 9, 2002.
Michael Schoessler,
Team Leader, Navajo-San Juan River Federal Indian Water Rights
Negotiation Team, U.S. Department of the Interior, Office of
the Solicitor, 505 Marquette Ave. NW Suite 1800, Albuquerque,
NM.
SUBJECT: Navajo-San Juan River Federal Indian Water Rights Negotiation
(Negotiation)
Dear Michael: Thank you for responding in advance of this week's
meeting of your Navajo-San Juan River Federal Indian Water Rights
Negotiation Team (Team). As you know, CAW has expressed an interest in
the subject Negotiation, particularly regarding the Department of the
Interior's (DOI) application of its policy for the negotiation and
settlements of claims concerning Indian water resources, 55FR9223
(Policy). Your observation that this Policy has been inconsistently or
haphazardly applied over the past decade confirms our worst fears.
At the same time, we are encouraged by your expressed intention to
strictly adhere to the Policy as established in the ``Criteria &
Procedures'' during your Team's ongoing two-year effort with the
subject Negotiation. I suppose it would be reasonable to assume that,
initially anyway, DOI personnel assigned to other negotiation teams had
similar intentions of enforcing the required ``Criteria & Procedures'',
but then, for one reason or another, found it more convenient,
advantageous, or politically expedient to abandon their responsibility
to uphold that Policy.
In our opinion, only a full and careful implementation of the
Policy in the subject Negotiation will fulfill the Secretary's
obligation under the federal Indian trust responsibility. Indian Trust
Assets (ITAs) in connection with Navajo Nation water rights claims to
the San Juan River cannot be accurately assessed and adequately
protected if the DOI's slipshod approach to Policy enforcement
resurfaces in the subject Negotiation. Certainly the American people
will be ill-served by any perpetuation of this willy-nilly system which
leaves so much to chance, if not outright subterfuge.
We sincerely appreciate your willingness to present the requests in
CAW's October 22nd letter to the non-Federal parties for consideration
and action at this week's negotiation session. However, your view that
the Team has no independent ability or authority to provide for the
involvement of additional non-Federal parties in the subject
Negotiation seems to be incompatible with the ``Criteria & Procedures''
of the Policy.
In fact, the Policy does not make allowance for the arbitrary
exclusion of individual stakeholders or entities with competing claims
and interests as a prerequisite to the subject Negotiation. Neither
does the Policy support your determination that the current
negotiations shall be closed to the public and conducted in absolute
secrecy.
If the subject Negotiation is to be kept free of bias and
prejudice, the Team must act swiftly with authority to allow for the
participation of additional interested parties, including legitimate
stakeholders.
Once again, we appreciate your time and consideration in this
matter.
Sincerely,
Steve Cone and Verna Forbes Willson.
THE OBJECT LESSON IN ALL OF THIS IS AS FOLLOWS: IF THE ADOPTED
POLICY OF THE UNITED STATES GOVERNMENT FOR PARTICIPATION IN THE
NEGOTIATION OF INDIAN WATER RIGHTS SETTLEMENTS, 55FR9223, IS NOT TO BE
FAITHFULLY AND THOROUGHLY IMPLEMENTED TO REACH A JUST WATER RIGHTS
SETTLEMENT WITH THE NAVAJO NATION, THEN LITIGATION IS MUCH PREFERRABLE
TO THE SECRECY AND SUBTERFUGE WHICH HAVE CHARACTERIZED THE NAVAJO
SETTLEMENT NEGOTIATIONS LEADING TO THE PROPOSED SETTLEMENT.
______
Statement of the Jicarilla Apache Nation
s. 1171
The Jicarilla Apache Nation is pleased to submit this testimony
supporting and commenting on S. 1171. The Jicarilla Apache Nation is a
co-sponsor in the planning process for the Navajo Gallup Water Supply
Project, a vital piece of this legislation and the Navajo Nation Water
rights settlement package. We are a member of the Steering Committee
for the Project. We have devoted substantial staff time and resources
over the last several years to the planning and environmental
compliance process for the Project.
The Nation's water rights in the San Juan River Basin are the
subject of a 1992 settlement agreement and the Jicarilla Apache Tribe
Water Rights Settlement Act, Public Law 102-441, 106 Stat. 2237. We
traveled a long road to successfully negotiate our settlement, and we
find ourselves on an equally long road to secure the implementation of
the settlement in order to fully realize its benefits for our people.
When faced with obstacles to the use of our settled water rights, we
have consistently shown leadership in finding solutions that benefit
not only our people, but also our neighbors in the San Juan River
Basin. We have, for example, provided leased water supplies to large
and small water users, ranging from individual farmers and the Elks
Lodge to BHP Billiton and PNM. We have also served as a founding member
of the San Juan River Recovery Implementation Program to protect
endangered species while water development is pursued.
Most recently, we have stepped up to the plate to offer to
negotiate a water lease, or subcontract, to the City of Gallup to
provide their water supply for the Navajo-Gallup Water Supply Project
that would otherwise be unavailable. The water rights that would be the
subject of a subcontract to be negotiated between the Jicarilla Apache
Nation and the City of Gallup are already adjudicated to the Nation.
Consequently, these water rights are already within the recognized
Upper Basin supply in New Mexico. It is important for the Committee to
understand the Nation's pivotal role in the creative solutions that
make the Project, and ultimately the Navajo Nation settlement,
achievable.
We share with the Navajo Nation a common interest in bringing
clean, reliable water service to grossly underserved areas of our
reservations. The Jicarilla Apache people desire to pursue our way of
life by making their homes on our reservation lands throughout the
basin, and not being crowded into increasingly limited space in Dulce,
New Mexico because of the lack of potable water. To meet this need, we
have worked with the United States Bureau of Reclamation and the other
Project Participants to provide for the connection of a water line at
Counselor, New Mexico from the Cutter Lateral portion of the Project.
We are also separately planning construction of the approximately
eight-mile portion of the additional water line that will be needed
from Counselor to our lands at TeePees on New Mexico State Highway 550
in order to deliver this water to our people, without the assistance of
appropriations authorized under this bill. The water that would be
delivered to us through the Project is water already adjudicated to us
under the 1992 settlement and related Partial Final Decree. We will
receive no additional water rights under this bill.
For these reasons, the Jicarilla Apache Nation has a demonstrated
commitment to and interest in a successful outcome to this legislation
and the associated Navajo-Gallup Water Supply Project. It is imperative
that the legislation recognize and support the Nation's role in the
Project.
In addition to the attached detailed comments that we are providing
to the Committee staff, we share the following thoughts in the interest
of ensuring that key provisions of the legislation are clarified. We
look forward to continuing to work with members of the Committee and
Congress, the State of New Mexico, the Navajo Nation, the City of
Gallup, and the Administration to refine and implement the legislation.
The Jicarilla Apache Nation does not object to the concept of a top
water bank, provided that its implementation does not adversely affect
the Nation's water rights, storage for the Nation, or costs under our
contract for water from the Navajo Reservoir Supply, and provided also
that the beneficiaries of the top water bank pay their fair share of
construction and operation and maintenance costs associated with Navajo
Reservoir.
The provisions concerning shortages should be carefully
reconsidered and redrafted in consultation with us to protect the
Jicarilla Apache Nation's water rights, including entitlement to
delivery in times of shortage, under the Jicarilla Apache Tribe Water
Rights Settlement Act. We believe and expect that it is not Congress'
intent to adversely modify the Nation's rights under our existing
settlement. Indeed, the bill appropriately states that unless expressly
provided, nothing in it modifies, conflicts with, preempts, or
otherwise affects the Jicarilla Apache Tribe Water Rights Settlement
Act (Section 103(1)), page 18 lines 2-4 and page 19 lines 1-2). The
legislation must be crafted to protect the Nation from suffering a
lower priority in time of shortage.
We wish to share a few concerns the Nation has regarding what we
view as unclear language referring to cost share provisions in the
Bill. The Secretary is directed to determine the share ``based on the
ability of the Jicarilla Apache Nation to pay the construction costs of
the Project facilities that are allocable to the Jicarilla Apache
Nation,'' and this share is specified to be at least 25 percent of the
costs so allocable.
We have some concerns with how the portion ``allocable'' to the
Nation will be determined. The Nation's staff have reviewed the items
allocated to us as reflected in the March 2007 Draft Planning Report
and Environmental Impact Statement for the Project (``PR-DEIS''), and
if our understanding is correct, the allocation reflected in that
document is appropriate. The legislation should make clear that a
different allocation will not be imposed on us. While we are not
concerned with the items contemplated to be allocated to us, we are
concerned that the Bureau of Reclamation's cost estimates for these
items are substantially greater than they should be. Notably, the PR-
DEIS states that Reclamation is re-estimating costs and anticipates
providing updated cost estimates through errata sheets to be made
available during the public comment period on the PR-DEIS. To our
knowledge, however, no such errata sheets have been made available and
the public comment period ends on June 28, 2007. We are therefore
reserving for further comment the issue of cost estimates in our
comments on the PR-DEIS. To protect the continuing voice of the Project
Participants in all cost determinations associated with the Project,
the legislation should clarify that the construction costs reimbursable
by the Jicarilla Apache Nation shall be reduced by the amounts that the
Nation expends from its own funds or non-federal sources on pre-
construction activities for the Project.
The draft legislation does not effectively define the ``ability to
pay'' determination. This provision should specify that ``ability to
pay'' will be determined on the basis of the per capita income, median
household income, and poverty rate of the population on the Jicarilla
Apache Reservation. This specificity will ensure that the determination
of ``ability to pay'' reflects the true ability of our people to pay
for the water supply.
The requirement that the Nation should pay a minimum percentage of
25 percent of the construction costs allocable to the Nation is
inappropriate. A proper ability to pay determination based on the
ability of our population will result in a cost share percentage below
25 percent. Indeed, this minimum leaves the Nation unacceptably exposed
to the burden of a cost share far greater than 25 percent that has no
relationship to ability to pay. Notably, the April 2006 study by
Dornbusch Associates entitled ``Social Impacts from the Navajo-Gallup
Water Supply Project'' (Appendix D-IV, page 12, to the PR-DEIS) found
that the Jicarilla Apache people earn median incomes far below the New
Mexico state average.
This requirement casts a shadow over the negotiating process in
providing a leased water supply for the City of Gallup. Without fully
understanding the entire exposure the Nation has in paying for its
portion of the Project, it is extremely difficult to proceed with
substantive negotiations with Gallup and the Navajo Nation in
finalizing a secure water supply for the City.
We would like to see in the bill a provision for establishment of a
committee, including a seat for the Jicarilla Apache Nation, to set and
review Project construction and operation, maintenance and replacement
budgets and extraordinary expenditures.
______
Statement of the Jicarilla Apache Nation
detailed comments on s. 1171
Pages 8-11, Section 101(b), top water bank in Navajo Reservoir: The
Jicarilla Apache Nation does not object to the concept of a top water
bank, provided that its implementation not adversely affect the
Nation's water rights, storage for the Nation, or costs under our
contract for water from the Navajo Reservoir Supply, and provided also
that the beneficiaries of the top water bank pay their fair share of
construction and operation and maintenance costs associated with Navajo
Reservoir. Page 9, lines 11-20, provides that the water bank shall be
operated in a manner that does not impair delivery under contracts
entered into under New Mexico State Engineer File Nos. 2847, 2848,
2849, and 2917. This list should not omit the additional permits--file
Nos. 2873 and 3215--that are included along with the listed file
numbers in the definition of ``Navajo Reservoir Supply'' in the
December 8, 1992 contract between the United States and the Jicarilla
Apache Nation for delivery from this supply pursuant to the Jicarilla
Apache Water Rights Settlement Act.
Page 10, lines 17-24, describes a requirement for the operation of
the top water bank as follows:
water in the top water bank [shall] be the first water
spilled or released for flood control purposes in anticipation
of a spill, on the condition that top water bank water shall
not be released or included for purposes of calculating whether
a release should occur for purposes of satisfying releases
required under the San Juan River Recovery Implementation
Program [SJRRIP].
For clarity, this subsection should be divided into two separate
requirements: (1) top water bank water shall be the first to be spilled
or released for flood control purposes and (2) top water bank water
shall not affect the calculation of the release required under the
SJRRIP. Since the Flow Recommendations of the SJRRIP consider reservoir
storage without the top water bank present, it is appropriate to
disregard the top water bank in calculating whether a release should
occur. However, it is not appropriate to exclude top water bank water
from the water that would be released. We do not believe that the
intent is to exclude it, but as currently written, the provision could
be misread to exclude top water bank water from a release.
The legislation should clearly require the beneficiaries of the top
water bank to enter contracts with the United States for storage,
including an obligation to pay their proportional share of construction
and operations, maintenance and replacement costs. The cost shares of
the Jicarilla Apache Nation and other contractors should be reduced
accordingly.
Page 13, lines 10-22, use of the Navajo Indian Irrigation Project
works to convey water: Planning for the Navajo-Gallup Water Supply
Project has contemplated the use of NIIP works for conveyance. This
provision authorizes that use, and importantly, prohibits the
reallocation of NIIP construction costs because of such use. The
legislation should also restrict the reallocation and repayment of NIIP
operation, maintenance and replacement costs to the Navajo-Gallup Water
Supply Project. The Jicarilla Apache Nation has expressed concern in
the planning process for the possibility that NIIP OM&R costs that are
unrelated to conveyance for the Nation's water through the Project
might be charged to the Nation. We have felt assured that such costs
would not be charged to us. The legislation should clarify this point.
Pages 14-17, shortage determinations and allocations: The bill
would establish a priority of allocation of shortages, not water
supply, in the event of a shortage determination. The bill further
includes provisions for determining which uses in New Mexico will be
counted as normal diversion requirements. The quantity of water that
reliably can be anticipated to be diverted or delivered under a
contract from inflows to the San Juan River arising below Navajo Dam
under New Mexico State Engineer File No. 3215 would be excluded from
the normal diversion requirements. We are concerned about how these
potentially confusing provisions will be interpreted and applied in
practice.
The provisions concerning shortages should be carefully
reconsidered and redrafted in consultation with us to protect the
Jicarilla Apache Nation's water rights, including entitlement to
delivery in times of shortage, under the Jicarilla Apache Tribe Water
Rights Settlement Act. We believe and expect that it is not Congress'
intent to adversely modify the Nation's rights under our existing
settlement. Indeed, the bill appropriately states that unless expressly
provided, nothing in it modifies, conflicts with, preempts, or
otherwise affects the Jicarilla Apache Tribe Water Rights Settlement
Act (Section 103(1)), page 18 lines 2-4 and page 19 lines 1-2). The
legislation must be crafted to protect the Nation from suffering a
lower priority in time of shortage.
The provision on page 17, lines 13-17 that preserves the
Secretary's ability to reallocate water in accordance with cooperative
agreements between water users is important to ensure that the
constructive shortage sharing recommendations of recent years, to which
the Nation has been a signatory, can continue to foster solutions that
avoid a Secretarial shortage determination and the attendant potential
for disruptive litigation.
Page 27, lines 18-21: The bill states that the design and
construction of the Project shall not be subject to the Indian Self
Determination Act. The Jicarilla Apache Nation would like this section
to be amended to allow the Nation to utilize the Act appropriately for
our involvement in design and construction work.
Page 30, lines 11-24 and page 31, lines 1-12 provide for conveyance
of Project facilities to the City of Gallup or the Navajo Nation. The
legislation should expressly state that such conveyance shall not
adversely affect the cost allocations or repayment obligations of the
Project Participants, and should further provide for the continuation
of the committee to establish and review budgets as recommended in our
comment below on cost allocation.
Page 32, lines 11-18 provide, in part, that any payments for water
under any subcontract with the Jicarilla Apache Nation shall not alter
the construction repayments or operation, maintenance and replacement
payment requirements of Project Participants. This language is
important to clarify that our payment obligations will not be affected
by revenues we may receive under a subcontract. However, when a payment
is made for the use of unused Project capacity, the payments due from
the Project Participants should be commensurately reduced.
Title III of the bill uses the phrases ``allocate water supply''
and ``allocation'' in a way that may cause confusion. Section 301(2),
page 24, lines 12-14 lists among the purposes of the subtitle ``to
allocate the water supply for the Project among the Nation, the city of
Gallup, New Mexico, and the Jicarilla Apache Nation.'' Section
303(b)(2), pages 34-36, provides for ``allocation'' of the water
diverted under the Project to these entities by specified amounts of
water for use. These provisions should be revised to make it clear that
they are specifying the use of delivery capacity, not the allocation of
underlying water rights or contract rights to the Navajo Reservoir
Supply. For instance, the bill describes an ``allocation'' of 7,500
acre-feet per year to the City of Gallup (page 35, lines 1-5), but if
that water is to be supplied by a potential subcontract from the
Jicarilla Apache Nation under our 1992 contract rights to the Navajo
Reservoir Supply, then the water allocation remains the Jicarilla
Apache Nation's and Gallup will be entitled to delivery under the
subcontract through the Project.
Page 45, lines 11-13 provide the important clarification that the
Jicarilla Apache Nation is not obligated to enter into a water
subcontract with the City of Gallup. The phrase ``nothing in this
paragraph'' is used, however, when the wording should be ``nothing in
this Act'' (page 45, lines 1-2).
We wish to share a few concerns the Nation has regarding what we
view as unclear language referring to cost share provisions in the
Bill. The Secretary is directed to determine the share ``based on the
ability of the Jicarilla Apache Nation to pay the construction costs of
the Project facilities that are allocable to the Jicarilla Apache
Nation,'' and this share is specified to be at least 25 percent of the
costs so allocable.
We have some concerns with how the portion ``allocable'' to the
Nation will be determined. The Nation's staff have reviewed the items
allocated to us as reflected in the March 2007 Draft Planning Report
and Environmental Impact Statement for the Project (``PR-DEIS''), and
if our understanding is correct, the allocation reflected in that
document is appropriate. The legislation should make clear that a
different allocation will not be imposed on us. While we are not
concerned with the items contemplated to be allocated to us, we are
concerned that the Bureau of Reclamation's cost estimates for these
items are substantially greater than they should be. Notably, the PR-
DEIS states that Reclamation is re-estimating costs and anticipates
providing updated cost estimates through errata sheets to be made
available during the public comment period on the PR-DEIS. To our
knowledge, however, no such errata sheets have been made available and
the public comment period ends on June 28, 2007. We are therefore
reserving for further comment the issue of cost estimates in our
comments on the PR-DEIS. To protect the continuing voice of the Project
Participants in all cost determinations associated with the Project,
the legislation should clarify that the construction costs reimbursable
by the Jicarilla Apache Nation shall be reduced by the amounts that the
Nation expends from its own funds or non-federal sources on pre-
construction activities for the Project.
The draft legislation does not effectively define the ``ability to
pay'' determination. This provision should specify that ``ability to
pay'' will be determined on the basis of the per capita income, median
household income, and poverty rate of the population on the Jicarilla
Apache Reservation. This specificity will ensure that the determination
of ``ability to pay'' reflects the true ability of our people to pay
for the water supply.
The requirement that the Nation should pay a minimum percentage of
25 percent of the construction costs allocable to the Nation is
inappropriate. A proper ability to pay determination based on the
ability of our population will result in a cost share percentage below
25 percent. Indeed, this minimum leaves the Nation unacceptably exposed
to the burden of a cost share far greater than 25 percent that has no
relationship to ability to pay. Notably, the April 2006 study by
Dornbusch Associates entitled ``Social Impacts from the Navajo-Gallup
Water Supply Project'' (Appendix D-IV, page 12, to the PR-DEIS) found
that the Jicarilla Apache people earn median incomes far below the New
Mexico state average.
This requirement casts a shadow over the negotiating process in
providing a leased water supply for the City of Gallup. Without fully
understanding the entire exposure the Nation has in paying for its
portion of the Project, it is extremely difficult to proceed with
substantive negotiations with Gallup and the Navajo Nation in
finalizing a secure water supply for the City.
We would like to see in the bill a provision for establishment of a
committee, including a seat for the Jicarilla Apache Nation, to set and
review Project construction and operation, maintenance and replacement
budgets and extraordinary expenditures.
Page 59, lines 17-21, Section 401(a)(4) provides that the State of
New Mexico may administer releases of stored water from the Navajo
Reservoir in accordance with subparagraph 9.1 of the Navajo Nation
settlement agreement. The effect of this provision is unclear. The
referenced subparagraph of the agreement states that the Navajo Nation
and the United States will not challenge the State's making available
water under specified circumstances. It seems that bill language should
be revised to simply provide for the waiver by the United States of the
objection as contemplated by the agreement.
Page 68, lines 24-25, and page 69, lines 1-3 and lines 14-19
literally require the court to enter the partial final decree and
supplemental partial final decree described in the Navajo Nation
settlement agreement by specified dates. The bill could be clearer on
the effect of a failure to meet these deadlines.
Page 73, lines 9-13 states that ``nothing in the Agreement, the
Contract, or this section quantifies or adversely affects the land and
water rights, or claims or entitlements to water, of any Indian tribe
or community other than the rights, claims, or entitlements of the
Nation.'' This provision should specify that nothing in the Act, rather
than merely the section, quantifies or adversely affects, and should
also specify that nothing in the hydrologic determination by the
Secretary quantifies or adversely affects such rights, claims or
entitlements.
______
Statement of Mike Sullivan, Chairman, San Juan Agricultural Water
Users Association
Thank you for giving us the opportunity to testify about the
proposed legislation entitled ``Northwestern New Mexico Rural Water
Projects Act.'' If carried out, this legislation would draw water from
the San Juan River (one of the largest tributaries of the Colorado
River) for a pipeline to be built to the Gallup area at a cost of more
than $1 billion in public funds. The legislation would also affect
water rights throughout New Mexico and the entire Colorado River
system.
The San Juan Agricultural Water Users Association represents 36 of
the 38 irrigation ditches in the San Juan river system. Our members
consist of about 15,000 landowners and their families. The members of
our association have water rights from the Echo Ditch Decree (1948) and
appropriations for approximately 35,000 acres of irrigated land with a
farm delivery of over 110,000 acre-feet of water. We are also entitled
to divert approximately 1,000 cfs from the rivers of the Basin. Our
members also have water rights for household, livestock, and other
uses, which have not yet been quantified by the court. The members of
the association have been putting the waters of the San Juan to
beneficial use for more than 100 years. Our ancestors, Anglo, Hispanic,
and Navajo, were the first ones to divert water from the river, long
before New Mexico became a state. Since then, our members have
maintained our community ditches with their own labor and their own
money, through ditch assessments, without government subsidies.
We appreciate the invitation to testify in person, but
unfortunately our group cannot afford to send someone to Washington. So
we are submitting testimony in writing. Although we are unable to be
present with you, we ask that you give careful attention to the facts
which we are outlining, because you will not hear these facts from
anyone else. In our absence, our opponents will pooh-pooh these facts
and our position, but we respectfully request that you and your
staffers conduct an independent investigation of the points we outline
here. Any objective inquiry will demonstrate that there are serious
questions about this bill, which the proponents are trying to gloss
over.
If this legislation is passed in its present form, it will hurt us
and many other people in New Mexico. With all due respect, the proposed
legislation is so fundamentally flawed that it should not be enacted in
its present form. This legislation has been pushed by certain special
interests as a solution to the problems all along the San Juan and
Colorado Rivers, but in reality it will only make those problems worse.
And this legislation as presently written will create new problems for
the entire State of New Mexico, which increasingly depends on the San
Juan River to supply its water.
the legislation attempts to give one-third of new mexico's river water
to a very small group--less than 40,000 people--at the expense of the
other 1,800,000 citizens who live in new mexico
The San Juan River provides 60% of all the surface water in New
Mexico. As a water source for New Mexico, the San Juan River is twice
as big as all the other rivers in the state, combined--the Rio Grande,
Pecos, the Gila, etc. Cities and tribes on the Rio Grande are
increasingly depending on water supplied from the San Juan via the San
Juan-Chama Project, which carries water across the Continental Divide.
Albuquerque is finishing a $275 million project to use San Juan
water, while Santa Fe is spending $145 million. Taos, Espanola, Los
Alamos, San Juan Pueblo, and Belen are also counting on water from the
San Juan River. The proposed settlements of Indian water rights for
Taos Pueblo and Nambe-Pojoaque (the Aamodt case) also are demanding a
share of water from the San Juan-Chama Project. But these communities
may be disappointed, because there is a crisis on the San Juan that
will soon affect the entire state.
This legislation is based on the false assumption that there is
enough water in the Colorado to satisfy the claims of the Navajo tribe
and the other tribes and communities that are competing for water from
the San Juan. This proposed settlement, just like the proposals for
Taos and Aamodt (and the unfulfilled settlement with the Jicarilla
tribe), is based upon wishful thinking, which we can no longer afford
in an era of global warming. The latest estimate by the Bureau of
Reclamation is just another in a long series of unrealistic
hydrological estimates of the amount of water that will be available
for all uses in New Mexico. The sheer size of this proposed water deal
makes it a threat to the rest of the state. If enacted in its present
form, the statute would give a grossly unfair share to a very small
group of people.
The ostensible purpose of this legislation is to settle a water
rights claim for the portion of the Navajo reservation that lies within
New Mexico. According to the 2000 census, there are only 44,636 persons
who live on the reservation in New Mexico. U.S. Census Bureau, New
Mexico--American Indian Area, GCT-PH1, Population, Housing Units, Area,
and Density, http//factfinder.census.gov. The census figure includes
non-Indians as well as tribal members, so it is almost certain that
there are fewer than 40,000 tribal members living on reservation land
in New Mexico. These are the only persons who would have claims under
the so-called ``Winters Doctrine.'' This group amounts to only 2.5% of
the total population of New Mexico, which is 1,819,046 according to the
2000 census.
The proposed legislation would give one-third of all the surface
water in New Mexico to this very small group. The settlement proposes
to give the tribe rights to 56% of the water in the San Juan River,
which accounts for 60% of the state's stream water. So the settlement
would allocate 33.6% of the state's entire supply to satisfy the claims
of less than 2.5% of the population.
The legislation would give each tribal member much more river
water, per person, than the other citizens of New Mexico. If this draft
legislation were passed and fully implemented, the Navajo tribe would
be entitled to a depletion of 348,550 acre-feet annually from the San
Juan River for the 44,636 tribal members who live on the reservation in
New Mexico. This works out to a depletion of 7.8 acre-feet per capita
for a tribal member living on the reservation in New Mexico. On a per
person basis, this is far more river water than would be left for the
rest of the people who live in New Mexico.
According to the best estimates, which are admittedly imperfect,
New Mexico has about 2.1 million acre-feet annually in stream flow,
after meeting its commitments to other states. New Mexico Water Quality
Control Commission, 2006-2008 State of New Mexico Integrated Clean
Water Act 303(d)/ 305(b) Report at 4. This means that there is about
1 acre-foot of river flow available for each person in this state, on
average. To keep some flow in the rivers, the amount of allowable
depletion per person would be considerably less than 1 acre-foot. Yet
the proposed legislation would allocate 7.8 acre-feet of depletion to
each Navajo tribal member on the reservation in New Mexico. This is
completely unfair to all the rest of the citizens of New Mexico. The
legislation advances the special interests of a very small group, while
it damages the long-term future of the entire state.
We request that your staff and the OSE prepare estimates of the per
capita water amounts that would be allocated by the proposed
settlements in New Mexico, and compare them to the per person amounts
that would be left to the rest of the population in this state. These
analyses will show that this settlement gives an unfair amount of water
to one very small segment of the state's population, at the expense of
the rest of the population.
As a matter of sound public policy and water planning, New Mexico's
scarce river water should be shared equitably by all of the citizens in
the state, so that all citizens have a roughly equal per capita share,
whether they are tribal members or not. We support a fair share for
everyone, but this legislation does not do this.
this legislation will impair the water supplies of local residents who
already depend on the san juan river
To make room for the proposed Navajo settlement, this legislation
squeezes the non-Indian users of the San Juan River. It would leave
only 16% of the river to the local people who have actually used the
river for more than a century. Under New Mexico's Constitution and
water laws, those who have actually put the water to beneficial use
have priority, but the settlement tries to push these rights aside.
Here is the allocation proposed by the supporters of this bill:
------------------------------------------------------------------------
Allocation
User (Percent) Comment
------------------------------------------------------------------------
Navajo Nation....................... 56 Irrigation and
domestic uses.
Jicarilla Apache Nation............. 5 Most leased for power
plants/municipal
uses.
San Juan--Chama Project............. 17 Municipal/irrigation
uses in Rio Grande
Basin.
Power Plants........................ 6 Use 9% of total
including lease with
Jicarilla.
Non-Indian uses in San Juan Basin... 16 Irrigation and
municipal uses.
------------------------------------------------------------------------
Executive Summary of the Navajo Nation Water Rights Settlement at 4
(Apr. 19, 2005).
The situation for local residents is even worse than these figures
show. First, the tribal claims would be given a retroactive higher
priority than many local users, even though local people put the water
to actual beneficial use, in accordance with New Mexico law, while the
tribes have never used most of the water allocated to them. Second,
this legislation gives the Navajo Nation control of the entire river,
from Navajo Lake at the top, to Shiprock at the bottom.
Third, to make this settlement fit, the OSE is trying to reduce our
members' water rights under the 1948 Echo Ditch Decree. In the ongoing
San Juan adjudication, the OSE is falsely claiming that our members
have abandoned large parts of their water rights under the Echo Ditch
Decree. To make this legislation look feasible, the projections by the
OSE wrongly assume that non-Indians are only using about half of their
Echo Ditch rights, so that non-Indian uses will be reduced from 16% to
about 8%. To accomplish this, the OSE, the tribes, the United States,
and the power plants are all litigating against our members, to cut
back on our vested water rights.
According to one set of projections by the State Engineer's staff,
the result will be a reduction of 40% in water use on the Upper San
Juan River, a 36% reduction to ditches on the Animas River, and a
reduction of 58% to ditches on the La Plata River. (The OSE now claims
that these projections are no longer operative, because the OSE and the
BOR keep changing their numbers to make them fit.) These reductions
would ruin many water users who have depended on this water, and
actually used it for more than a century, in order to give the water to
new users in the Gallup-Window Rock area, who have never depended upon
or used water from the San Juan.
The legislation does not solve the problems associated with the
Hogback-Cudei Project and the Fruitland-Cambridge Project. These
projects draw water at the downstream end of the San Juan River in New
Mexico, so they provide no return flow which can be used in the state.
The legislation authorizes the diversion of more water than will be in
the river on many occasions.
The Richardson settlement provides for the release of up to 12,000
acre-feet per year from Navajo Dam for use by the tribe for irrigation
in the Hogback-Shiprock area. This provision is inadequate and
ineffective: the maximum amount is 12,000 acre-feet in any one year,
but this amount could be depleted in two or three weeks under really
dry conditions. If the shortage in the river is 500 cfs, the water will
be gone in about 3 weeks. To have an adequate buffer, there needs to be
at least a 65-day supply for both Indian and non-Indian users. As
proposed in this legislation, the 12,000 acre-feet is only for tribal
users, so it does not increase the water that can be used by non-
Indians. And in dry conditions it may still be necessary to place calls
on upstream users in order to get this water to the Hogback-Shiprock
area at the low end of the river. Under this legislation the tribe will
effectively control both ends of the river--Navajo Dam at one end and
Shiprock at the other.
this legislation continues a pattern of unrealistic piecemeal
settlements with indian tribes, which will make it impossible for new
mexico to formulate a coherent water policy
Unfortunately, New Mexico does not yet have a coherent and
comprehensive master plan for the state's water resources. For example,
the major rivers have not been fully adjudicated by the courts.
Furthermore, there are 19 Indian pueblos, 3 tribes, and 3 Navajo bands
in New Mexico. Tribal Map, New Mexico Indian Affairs Department,
www.iad.state.nm.us. Most of their water rights have not been settled
or adjudicated. Passage of this legislation would make it virtually
impossible for the state to develop a realistic long-term plan.
Throughout this process, we have asked some very basic questions,
but no one has been able (or willing) to answer them. Some of the basic
questions are:
(a) How much stream water does New Mexico have?
(b) After allowing for interstate obligations, rainfall
variations, and climate trends, how much river water can be
diverted for use within New Mexico?
(c) How much water can New Mexico consume, while still
leaving an adequate flow in our rivers?
Obviously, one cannot devise a water plan for New Mexico without
some idea of the overall water resources available in the state. But
the OSE and the ISC say they have no idea of the aggregate water supply
and demand.
At the request of Senator Bingaman, the OSE and the ISC met with us
on March 28, 2007, in Farmington. The purpose of this meeting was to
give the state's technical experts an opportunity to answer these very
basic questions. When we asked these questions, the OSE and ISC
representatives said that they had absolutely no idea of the amount of
water that might be available for use in New Mexico, not even a
ballpark estimate. We repeatedly asked them to give us some idea of the
water resources that might be available to the state, recognizing that
such estimates are quite imperfect. The OSE/ISC said, repeatedly, that
it had no idea whatsoever. The ISC representatives said that New Mexico
was currently in compliance with its compact obligations, but the ISC
had no idea of how much water would be left after those obligations
were met, not even a range of figures from dry years to wet years.
We find this hard to believe. If the OSE and the ISC have no idea
of the aggregate water resources of the state, then they are not doing
their job. The first step in any long-term water plan is to use the
best available and most current data to estimate future water flows, so
the state can learn to live within them. Neither the state nor the
federal government should make any long-term commitments until these
rudimentary questions have been addressed and answered.\1\
---------------------------------------------------------------------------
\1\ In our dealings with the OSE and the ISC, we have observed that
they are reluctant to provide data and offer their best professional
estimates about the proposed Indian settlements, because those
purported settlements have been widely touted by Governor Richardson.
Governor Richardson is running for president, and we believe that the
OSE and ISC personnel understand that they must stick closely to the
script for the Richardson presidential campaign, for fear that their
best information and estimates might undermine the campaign. Of course,
the personnel at OSE and ISC will deny this, but we have observed first
hand that they are operating under political orders from candidate
Richardson.
---------------------------------------------------------------------------
The legislation conflicts with other proposed water settlements
that depend on water from the San Juan River, such as the proposed
Aamodt and Taos settlements, and the incomplete Jicarilla settlement.
There simply is not enough money, or water, to carry out all of these
settlements proposed by Governor Richardson's administration. For
example, both Aamodt and Taos are conditioned upon the supply of more
water from the San Juan River via the San Juan-Chama project. And both
settlements demand unrealistic amounts of funding by the federal
government.
Under the Jicarilla settlement, the federal government is obligated
to buy back 11,000 acre-feet of private water rights beginning in 2000,
if requested by the State of New Mexico. For unexplained reasons, the
state has not yet made this request \2\ but this is likely to occur as
pressure on the river increases. In short, the federal government
already has outstanding commitments for the Jicarilla settlement, and
it should fulfill its existing commitments first.
---------------------------------------------------------------------------
\2\ We believe that the OSE and the ISC are under political
pressure from the Richardson administration not to make this request,
because it would puncture the pretense that there is enough water for
all the settlements that Governor Richardson has proposed.
---------------------------------------------------------------------------
The Jicarilla settlement allots 32,000 acre-feet of depletion to
the Jicarilla Apache Tribe. Jicarilla Apache Tribe Water Rights
Settlement Act of 1992, Pub. L. No. 102-441. According to the 2000
Census, there are 2,755 persons (tribal and non-tribal) living on the
Jicarilla reservation. So the Jicarilla settlement allocates an average
of roughly 11.6 acre-feet to each resident on the reservation, which is
more than 10 times the average amount available to each resident in the
rest of the state. Also, the Jicarilla reservation has substantial
water sources on the reservation itself. This settlement is grossly
unfair and inequitable to the rest of the state. It illustrates the
damage that can be done by water settlements that are negotiated in
secret by special interests and lobbyists, without public scrutiny and
without regard to the interests of the entire state as a whole.
When the Jicarilla allocation is added to the 33.6% share proposed
by this legislation, the Jicarillas and the Navajos would control more
than 40% of New Mexico's entire stream flow. New Mexico is already
short on water, and passage of this legislation would allow these two
tribes to corner the market of New Mexico's water. Once these two
tribes control all this water, they will try to lease it to non-Indian
users in the downstream states in the Lower Basin. To do this, the
tribes merely have to let the water flow down the San Juan River to
Lake Meade, which is right next to Las Vegas.\3\
---------------------------------------------------------------------------
\3\ Candidate Richardson is campaigning hard for the Nevada
caucuses in January 2008. As part of his campaign, Richardson has
pledged to find ways to get Nevada more water from the Colorado River.
Richardson's settlement is one way to get more water to Nevada--at New
Mexico's expense.
---------------------------------------------------------------------------
To cover up the fact that the tribe will export New Mexico's water
to other states, Governor Richardson and the tribe have agreed to
mislead the public. In their settlement agreement, Richardson and the
tribe added a provision that the tribe must apply to the New Mexico
State Engineer for a permit to export water for use in other states.
This provision is carefully calculated to create the false impression
that New Mexico can prevent the Navajo tribe from selling New Mexico
water to other states. Pointing to this provision, Richardson and his
appointees have been quick to claim that they have protected New
Mexico's interests by preventing the water from being exported. For
example, in an Op-Ed article in The Albuquerque Journal on April 8,
2007, New Mexico State Engineer John D'Antonio claimed that the tribe
has agreed not to export water without the approval of the OSE and the
ISC. See attached Exhibit 7.* The supporters of this bill repeated this
deception in The Albuquerque Journal on June 24, 2007.
---------------------------------------------------------------------------
* Exhibits 1-7 have been retained in committee files.
---------------------------------------------------------------------------
These assertions are false, and the Richardson administration knows
that they are false. The Navajo tribe has not agreed that it needs
permission from the State of New Mexico in order to export water. At
our meeting on March 28, 2007, we asked the OSE and the ISC about this
provision. We asked them what would happen if the tribe applies for
permission to export water, and the OSE denies them a permit. They
admitted that, under existing case law, New Mexico cannot prevent the
tribe from exporting water to another state. And the tribe also takes
the position that, once the tribe gets the water, the state cannot
prohibit the tribe from selling or leasing the water to other states.
In the proposed partial final decree, there is a provision that
purports to deal with the export of water, but the provision is
unintelligible and self-contradictory: it allows the tribe to litigate
its right to export water from New Mexico. Furthermore, the partial
final decree will never be entered, because the pre-conditions laid
down by the tribe will never be met.
In other words, Richardson and the tribe have tried to create the
illusion that the tribe will not export water, but this is legal
double-talk. Perhaps the tribe has agreed to apply for a permit to
export water, but if it does not get one, it will still export the
water. So the Richardson administration is just blowing smoke to cover
up the tribe's plans to sell New Mexico's water to Lower Basin states--
like Nevada. If the tribe is allowed to get all this water, it will
export most of it.
Therefore, this bill is not just another public works project. This
legislation poses a broad question of public policy that must be
addressed to the collective wisdom of Congress: Is it the policy of
Congress to give 40% of a state's entire water supply to a very small
group of Native Americans, so that they can sell the water to other
states?
the proposed legislation damages the environment by drawing more water
out of the colorado river system, which is already overdrawn
This legislation will inflict severe environmental damage on the
Colorado River, because the projects will draw down the river to pump
water far away, where there is no return flow to the river, and no
recharge to the soils in the river bed. When our members irrigate their
lands along the river, a lot of the water is returned to the river by
return flows and recharge. This is not the case with NAPI, or with the
proposed pipelines.
The San Juan is one of the biggest tributaries of the Colorado
River, which is already overdrawn. When New Mexico signed the Colorado
River Compact in 1922, it was assumed that the water flow in the
Colorado was 16.4 million acre-feet annually. But in 2007, a report
from the National Academy of Sciences indicates the flow may be only 13
million acre-feet and dropping, due to global warming. Colorado River
Basin Water Management: Evaluating and Adjusting to Hydroclimatic
Variability, Executive Summary, www.nap.edu, attached as Exhibit 1.*
When the BOR and the OSE offer their opinions that there is enough
water, their opinions are not based on the best and most current
scientific data from independent studies.
---------------------------------------------------------------------------
* Exhibit 1 has been retained in committee files but is also
available at http://www.nap.edu/catalog/11857.html.
---------------------------------------------------------------------------
From an environmental point of view, this legislation simply
repeats the mistakes of the Animas-La Plata project. The government
told our members that we would benefit from that project, but the
project has been a disaster.
the proposed legislation will generate more litigation
This legislation will not accomplish its objectives, which is to
settle the competing claims to the San Juan River. Instead, passage of
this legislation in its present form will simply produce more
litigation. The legislation is not a comprehensive settlement, because
it has not been agreed to by most of the people who have water rights
in the San Juan.
These water rights are now being adjudicated in the San Juan
Adjudication lawsuit, which is more than 30 years old. San Juan River
Basin Adjudication, State of New Mexico, ex rel. The State Engineer v.
The United States of America, et al. v. The Jicarilla Apache Tribe and
the Navajo Nation, Eleventh J.D. Dist., No. D-111 6-CV-1975-184 (Mar.
12, 1975). If this bill passes, it will just prolong the lawsuit for
many more years.
For example, the proposed settlement does not resolve the other
claims of the federal government, or of the Ute Mountain tribe.
It is also our understanding that the legislation does not even
settle all of the Navajo water claims in New Mexico, such as the claims
for the Rajah Band, south of Gallup, in the basin of the Little
Colorado River. We do not know whether it settles the claim of the
To'hajiilee Band, near Albuquerque, in the Rio Grande Basin.
Moreover, this legislation will not even settle the claims of the
Navajo tribe because the purported settlement is a ``conditional
settlement.'' The settlement is not effective until future conditions
are performed, but it is unlikely that these conditions will be met.
Congress has not fully funded the projects that must be completed
before the settlement becomes final and binding. Nor has the State of
New Mexico. It is highly unlikely that the federal and state
governments will provide the money to complete these projects, so the
purported settlement will never become final and binding on the Navajo
tribe. However, in the meantime, the tribe will claim huge amounts of
water for projects which will never be completed. Then the tribe will
attempt to lease this water to non-Indian users off the reservation, a
use that is contrary to the Winters line of cases. So this legislation
will create a whole new set of legal controversies that will have to be
litigated, on top of all of the difficult legal questions which already
exist.
the proposed settlement leaves no water rights for the lands of the new
mexico state land office, which congress reserved as an endowment for
new mexico's public schools and colleges
This unsettled issue is currently being litigated in the San Juan
River Basin Adjudication. The District Court has ruled against the New
Mexico State Land Office, and the case is currently being appealed to
the New Mexico Court of Appeals. It is likely that the case will
ultimately wind up in the New Mexico Supreme Court, and quite possibly
in the United States Supreme Court, because it presents a question of
overriding importance to New Mexico, Arizona, and the other Western
states. The question is this: When Congress reserved sections of land
as a permanent endowment for New Mexico's schools and colleges, did it
impliedly reserve the water necessary to develop those lands?
The San Juan Agricultural Water Users Association does not take any
position on this question. However, it seems inconsistent for the
Richardson administration and Congress to say that the federal
government impliedly reserved water for Indian tribes but not for
public schools.
the projections by bor and ose are faulty, because they do not allow
for any other reserved water rights that the united states might claim
The projections by the BOR and the OSE are incomplete, because they
do not make any allowance for any other federal reserved rights. It is
certain that the United States will assert claims for other reserved
water rights for Indian tribes besides the Navajos. It is also possible
that the United States will assert reserve rights for national forests,
especially as global warming increases and the national forests dry up.
The United States might also claim reserved water rights for other
purposes.
Before this legislation proceeds any further, we request this
committee to ask the following questions: Is the United States going to
claim any other reserved rights against the Colorado River system? Is
the United States going to claim any reserved rights for national
forests, or national parks, or national monuments, or for any other
purposes? How much is the United States claiming, or going to claim, on
behalf of other Indian tribes in the Colorado basin?
If the answer to any of these questions is ``yes,'' then these
demands against the Colorado River need to be quantified and factored
into the projections by the BOR and the OSE. These projections do not
make adequate allowance for these claims. In finding that water
supplies are likely to be adequate, the projections incorrectly assume
that there will be no other claims for reserved water rights.
This question needs to be asked and answered for the entire
Colorado River basin, not merely for New Mexico, because a federal
reservation of water anywhere along the river will affect every other
state. A federal reservation of water, when used, reduces the amount of
flow in the river, so it creates shortages that must be adjusted in
some fashion. However, the Colorado River compacts are silent on the
issue of Indian water rights.
It makes no sense for one agency of the federal government--the
BOR--to opine that water supplies will be adequate, without making any
allowance for the reserved water rights that will be claimed by other
federal agencies.
the proposed settlement is not supported by a pia study
This legislation creates a dangerous precedent, because it does not
require a study of practicably irrigable acreage (PIA) to substantiate
the Navajo water claims. Under the Winters line of cases, and as a
matter of sound public policy, a tribe cannot be awarded water for
irrigation of reservation lands unless it can demonstrate that the
acreage can be practicably irrigated, that is that irrigation is
economically viable.
This legislation sidesteps this requirement, because there has been
no study analyzing the amount of acreage on the Navajo reservation in
New Mexico that is viable for irrigation, and no analysis of the amount
of water that would be necessary to irrigate those acres. Before this
legislation precedes any further, an independent PIA must be conducted.
The New Mexico OSE has stated that the Navajo tribe insisted in its
negotiations that no PIA would be performed. In fact, the Navajo tribe
is trying to avoid a PIA because it will show that the reservation
includes very little practicably irrigable acreage--acreage down in the
river bottom around Shiprock.
From decades of personal experience, the San Juan Agricultural
Water Users Association can testify that irrigation is a very hard way
to make a living, even on the sheltered land down in the river valley.
Up on the mesa lands, almost 1,000 feet above the river, irrigation is
completely uneconomic, due to high winds, high evaporation rates, and
short growing seasons. The experience of Navajo Agricultural Products
Industries proves that irrigation is not economically viable. NAPI has
been attempting to grow viable crops by irrigation on the mesa top,
using pivot sprinklers and water supplied by the Navajo Indian
Irrigation Project. Unfortunately, NAPI has been a complete financial
failure, even though it is supplied with water at no cost from Navajo
Dam, and even though NAPI is heavily subsidized by the federal
government and the Navajo tribe. NAPI loses large amounts of money
every year. The revenues from NAPI do not even cover its annual
operating costs, much less all of the cost of water and the huge
capital costs for Navajo Dam and the Navajo irrigation canal.
the navajo tribe has already received more water than it is entitled to
under the winters line of cases
This legislation proposes to grant an additional 20,780 acre feet
of water to the Navajo tribe in settlement of their claims under the
so-called ``Winters Doctrine.'' However, the Navajo tribe is not
entitled to any more water from the San Juan River, because it
relinquished its claims as part of the creation of the Navajo Indian
Irrigation Project.
On May 20, 1960, Paul Jones, the chairman of the Navajo Tribal
Council appeared before Congress, accompanied by his Washington
attorney. The Navajo chairman testified in favor of the Navajo Indian
Irrigation Project, which was ultimately enacted in 1962 as part of
Public Law 87-483. In his prepared testimony, he described the Navajo
Indian Irrigation Project and made the following statement*:
---------------------------------------------------------------------------
* San Juan Reclamation Project and Navajo Indian Irrigation
Project: Hearing on H.R. 2352, H.R. 2494, and S. 72 Before the House
Subcommittee on Irrigation and Reclamation of the Committee on Interior
and Insular Affairs, 86th Cong. 64 (1960) (statement of Paul Jones,
Chairman, Navajo Tribal Council), attached as Exhibit 2.
All water uses from Navajo Dam would have equal priority. The
Navajo Tribe has consented to this, and relinquished its right
under the Winters doctrine for the water necessary to irrigate
the Navajo Indian irrigation project, in order to provide a
practicable plan for comprehensive development of the resources
---------------------------------------------------------------------------
and industrial potential of the San Juan Basin.
The next year, the executive secretary of the tribe reiterated to
Congress that the tribe was accepting the Navajo Indian Irrigation
Project in satisfaction of its claims for water under the ``Winters
Doctrine.'' San Juan Reclamation Project and Navajo Indian Irrigation
Project: Hearing on H.R. 2552, H.R. 6541, and S. 107 Before the House
Subcommittee on Irrigation and Reclamation of the Committee on Interior
and Insular Afairs, 87th Cong. 33 (1961) (statement of J. Maurice
McCabe, Executive Secretary, Navajo Tribal Council), attached as
Exhibit 3.
Therefore, the tribe's claim for additional water under the
``Winters Doctrine'' is without merit. The tribe accepted an allocation
of water for NIIP in satisfaction of its water claims, as part of the
compromises that were necessary to pass the 1962 legislation. The
tribe's current claims for water are inconsistent with its agreement
almost 50 years ago. Instead of demanding more water, the tribe should
honor the agreement it made to get water from NIIP.
Furthermore, the Navajo tribe has already received far more water
than it would be entitled to under the Winters line of cases. The cases
hold that tribes are entitled to water for irrigation only for
practicable irrigated acreage within the boundaries of the reservation,
that is, for irrigation that is economically viable. The cases also
hold that tribes are not entitled to water for projects that are
economically wasteful.
In every instance, an analysis of Winters claims necessarily
depends upon the specific facts for each reservation, including its
geography, its climate, and economic factors such as distance from
major markets. In the case of the Navajo reservation, there is very
little practicably irrigatable acreage in New Mexico. The original
Navajo reservation was established by Congress as a reservation for a
pastoral tribe, predominantly dependent on sheep herding. Congress did
not impliedly reserve water from the San Juan River for irrigation of
the original Navajo reservation, because anyone familiar with the
terrain knows almost none of the reservation's acreage could have been
viably irrigated from the San Juan River. Most of the land is too far
from the river, too high, too dry, too hot, too cold, and too windy.
Within the boundaries of the original reservation, there may be a few
small plots that are suitable for irrigation from local water sources,
but otherwise irrigation there is not even close to meeting any
standards for economic viability.
Some of the later additions to the reservation included land along
the San Juan River, and some of this land is economically viable for
irrigation. The rest of the reservation in New Mexico is not
economically viable for irrigation, because it is too high and too dry.
This fact is demonstrated by the complete failure of the Navajo
Agricultural Products Industries. The Navajo Indian Irrigation Project
was supposed to provide ``1,120 family farms for Navajo Indians. It
will give a livelihood in related service activities to another 2,240
families, thus providing a decent living for at least 12,000 Navajo
Indians. These figures have been supplied by the Bureau of Indian
Affairs. Actually, I feel they are excessively conservative.''
Testimony of Navajo Tribal Chairman Paul Jones on May 20, 1960, Exhibit
2, at 65.
The federal government built Navajo Dam in the 1950s and 1960s,
during the happy days when everybody thought that the Colorado River
would never run out of water. Navajo Dam supplies huge amounts of water
to the Navajo Agricultural Products Industry (NAPI), which grows crops
with sprinkler irrigation on the windy high desert, almost 1,000 feet
above the river. Much of this water is wasted, because NAPI ``has been
a huge financial failure,'' as the Albuquerque Journal reported in a
1999 news article. This ``Navajo farm project struggles financially
despite millions of dollars in government funding.'' Even though NAPI
loses money almost every year, the Journal also reported that the
Navajo tribe wants to expand this money-losing operation in order to
protect its water claims. ``When more acreage is farmed, the project
uses more water. If the tribe doesn't use the water, it is in danger of
losing its right to it.'' Since this article was written, NAPI
continues to lose money for the tribe and taxpayers. And despite all
the money and water that has been showered on the project, NAPI employs
only a few tribal members.
This is an absurd situation, where the tribe feels it must waste
water to protect its rights. We believe that the present problem can be
solved if the tribe is allowed to make better use of the water it now
wastes on NAPI. The San Juan Agricultural Water Users Association is
willing to work with the tribe, the OSE, and members of Congress to
come up with a solution that allows the tribe to put this water to
better use than trying to grow crops on the high mesa. The Navajo
Gallup Pipeline might be one of these uses.
Proponents of this legislation contend that this legislation is a
fair compromise because they claim that the so-called ``Winters
Doctrine'' would otherwise entitle New Mexico's Indian tribes to
virtually all of New Mexico's river water in the San Juan River, with a
priority over all non-Indian uses. This is a gross misconception and
exaggeration of the Winters line of cases.
In 1907, the Supreme Court ruled that when Congress established the
Fort Belknap Reservation on the Milk River in Montana, Congress
impliedly reserved some water to fulfill the basic purposes of the
reservation, even though Congress said nothing about water rights in
the act which created the reservation. The Winters decision might be a
reasonable judicial extrapolation of congressional intent, for a
particular reservation, but not for others.
The proponents of this legislation are asserting an exaggerated and
self-serving version of the ``Winters Doctrine.'' The legislation
tacitly and wrongly assumes that the ``Winters Doctrine'' would give
Indian tribes a priority over almost all non-Indian uses for whatever
water the tribes could use for any purpose at any time after the
reservation was established. The logic of this ``pseudo-Winters''
doctrine runs as follows:
When Congress established Indian reservations in this area in the
19th century, they impliedly reserved all the water that might be used,
even though the Indians were using little, if any, river water at the
time. Even though the water would not be used until indefinite times in
the future, the priority of all those future uses would date back to
the establishment of the reservation.
The problem with this ``pseudo-Winters'' doctrine is that it gives
tribes a retroactive priority over all non-Indian settlers, taking
water away from the settlers that have actually used and relied upon
water from these rivers for more than a century. This is a bizarre
misinterpretation of the Winters line of cases. This pseudo-Winters
doctrine is the creation of a small group of lawyers, not Congress.
Congress never intended such a result. When Congress opened the West to
settlement, it intended the settlers to have permanent water rights,
protected like other property rights. When Congress encouraged settlers
to move West and develop the land, Congress certainly did not intend to
confiscate the settlers' water, without compensation, after the
settlers had toiled on the land for a century and a half. Yet this is
the result of the pseudo-Winters doctrine that has been invented by a
small group of water lawyers acting as advocates for tribal interests.
If Congress accepts this misinterpretation of the Winters line of cases
by passing this legislation, it would be ratifying the concept that
Indian tribes have priority rights to all the waters in the Colorado
River system, the Rio Grande, and most other major river systems in the
West. In short, this misinterpretation of Winters takes away the waters
that our Anglo and Hispanic predecessors have relied upon since they
settled in this region.
the water which the federal government provides to the navajo tribe
cannot be charged to new mexico's share under the colorado river
compacts
The State of New Mexico has no legal obligation to provide water to
Indian tribes, so it cannot be charged with the water that is supplied
to the Navajos. That water is the responsibility of the federal
government, not the state. So the water provided to the tribe in
settlement of their water claims must be charged to the federal
government, not to New Mexico's share of the Colorado River under the
various compacts.
The compacts do not deal with Indian water rights, except to say
that they are the responsibility of the federal government. Article VII
of the Colorado River compact states that ``Nothing in this compact
shall be construed as affecting the obligations of the United States of
America to Indian tribes.'' Article XIX of the Upper Colorado River
Basin Compact states that ``Nothing in this compact shall be construed
as: (a) affecting the obligations of the United States of America to
Indian tribes.'' NMSA 1978, 72-15-26.
Furthermore, it is not clear how this legislation relates to the
settlement of Navajo water claims in Arizona and Utah. Although this
legislation is touted as a settlement, it appears that it does not
settle the tribe's claims for Colorado River water in Arizona, where
the majority of tribal members live, or in Utah. Under the Colorado
River Compact, Arizona is a lower basin state, while Utah and New
Mexico are upper basin states. If there is to be a settlement of Navajo
water claims, it should be a comprehensive settlement of all Navajo
claims at once. And any settlement must specify how these claims will
be treated under the various compacts affecting the Colorado River
system. Any comprehensive settlement must also specify how the federal
government is going to obtain the water it needs to settle its
obligations (if any) to Indian tribes.
the governor does not have the authority to sign away water that
belongs to the public, not the state
Although Governor Richardson has signed a proposed settlement with
the Navajo tribe, it is doubtful that he has unilateral authority to
sign away water that belongs to the public, not the State of New
Mexico. Article XVI, 2 of the New Mexico Constitution provides that
``the unappropriated water of every natural stream, perennial or
torrential, within the state of New Mexico, is hereby declared to
belong to the public and to be subject to appropriation for beneficial
use, in accordance with the laws of the state. Priority of
appropriation shall give the better right.'' Congress approved this and
the other articles of the New Mexico Constitution as part of the
process by which New Mexico was admitted to the Union in 1912.
NMSA 1978, 72-1-1 says that ``All natural waters flowing in
streams . . . within the limits of the state of New Mexico, belong to
the public and are subject to appropriation for beneficial use.''
Therefore, the water in the San Juan belongs to the citizens who use
it, not to the State of New Mexico. So how could the Governor have the
authority to sign a binding deal that purports to commit water which
the state does not own? Governor Richardson's unilateral attempt to
sign away this water to the Navajo tribe poses serious questions under
the New Mexico Constitution, its statutes, and the takings clause of
the Fifth Amendment.
the proposed pipeline will not solve the water problems on the
navajo reservation
The Gallup pipeline would cost more than $1.5 billion to complete,
in current dollars without cost overruns, which are inevitable. As a
preliminary step, Congress and the State of New Mexico should
commission an independent engineering and cost study by experts who
have no vested interest in the project, so that the federal and state
governments do not start a project which they cannot finish at a
reasonable cost. Without an independent analysis, this project
resembles a typical military procurement project: the project boosters
are trying to get Congress to buy into the project by using low-ball
cost estimates.
Even if the Gallup pipeline is built, it will not supply drinking
water to homes on the Navajo reservation. The legislation authorizes,
but does not fund, a main trunk pipeline to Gallup and Window Rock. The
legislation does not include the distribution pipelines that are
necessary to supply water to homes on the reservation, so many tribal
members will still be forced to haul water to their homes even if the
main pipeline is built. A network of pipes to distribute water from the
trunk line is likely to be more expensive than the main pipeline
itself. For the amount of money that would be spent building the main
trunk line, Congress could deliver water to more households and
communities across the reservation by funding local projects to supply
and conserve water. These smaller scale projects would be based on the
development of local ground and surface water, with strict conservation
measures. This alternative approach has several major advantages:
A. It actually delivers water to the households and
communities that need it most.
B. It is cheaper and much more cost-effective.
C. It avoids drawing down the Colorado River.
D. It encourages conservation rather than consumption.
The San Juan Agricultural Water Users Association could support
legislation that provides an adequate supply of drinking water to the
reservation and to the Gallup area, so long as it does not draw more
water from the San Juan, which is already over-committed. This can be
accomplished by a combination of local projects, conservation measures,
and perhaps a pipeline that uses some of the water that currently goes
to NAPI, where it is wasted.
conclusion
In the 1950s, many of our families were removed from their homes
and ranches to make way for Navajo Dam and Navajo Lake. All of us were
told that the project would protect us from floods, and this has turned
out to be true.
But we were also told that the dam would provide us with water in
dry times. This has turned out to be untrue.
We were told that there was plenty of water in the Colorado for
everyone. This has turned out to be untrue.
We were told that the project would satisfy the tribe's water
claims. This has turned out to be untrue.
______
State Engineer's Office,
State of Wyoming,
Cheyenne, WY, June 28, 2007.
Hon. Jeff Bingaman,
Chairman,
Hon. Pete V. Domenici,
Ranking Member,
Committee on Energy and Water Development, United States Senate, 304
Dirksen Senate Office Building, Washington, DC.
Re: Support for the Northwestern New Mexico Rural Water Projects Act--
S. 1171
Dear Chairman Bingaman and Senator Domenici: The State of Wyoming
is writing to express our support for enactment of S. 1171, the
Northwestern New Mexico Rural Water Projects Act. We respectfully
request the Committee's favorable consideration of this necessary
authorizing legislation. The State of New Mexico's water rights
settlement with the Navajo Nation and the Northwestern New Mexico Rural
Water Supply Project will provide a secure, safe source of drinking
water necessary to meet basic human needs for Navajo citizens.
Thousands of Navajo citizens currently haul water from coin-operated
filling stations to their homes and use that water as their only source
of domestic supply. The proposed Water Project will also connect to a
regional municipal water system to enable New Mexico communities to
draw upon a renewable surface water supply, rather than continuing to
rely on a depleting groundwater supply for water.
The water supply necessary for New Mexico's Navajo settlement fits
within New Mexico's Upper Colorado River Basin Compact apportionment.
The settlement provides only approximately 22,000 acre-feet of newly
recognized water for the Navajo Nation that will be supplied out of
Navajo Reservoir. The settlement confirms and limits the Navajo
Nation's ability to use water for previously authorized irrigation
projects. New Mexico's Navajo settlement resolves Indian reserved water
rights claims and avoids prolonged litigation.
We are advised New Mexico's Navajo Settlement protects existing
agricultural and municipal water uses within New Mexico. The Navajo
reservation is very large and the reserved water rights claims of the
Navajo Nation, absent the Settlement that has been negotiated, could
have displaced many existing uses and jeopardized the water supply for
some of New Mexico's largest cities. New Mexico's Navajo settlement
contains administrative provisions that will enable New Mexico to
administer the Navajo Nation's water rights in the event the state
needs to curtail rights pursuant to the Upper Colorado River Basin
Compact or the Colorado River Compact.
The Secretary of the Interior has approved the hydrologic
determination required by Public Law 87-483 confirming that sufficient
water is reasonably likely to be available within New Mexico's Upper
Colorado River Basin Compact apportionment. The Upper Colorado River
Commission adopted resolutions dated June 19, 2003 and June 9, 2006
expressing support for New Mexico's Navajo Settlement and authorizing
legislation to implement the provisions of the Settlement. Further, the
April 23, 2007 Agreement Concerning Colorado River Management and
Operations executed by the seven Colorado River Basin States affirms
each State's right to develop its Compact apportionment.
Thank you for the opportunity to submit this letter in support of
the Committee's favorable consideration of S. 1171, the Northwestern
New Mexico Rural Water Projects Act. Should I be able to answer any
questions, please don't hesitate to contact me.
With best regards,
Patrick T. Tyrrell,
Wyoming State Engineer,
Wyoming Commissioner,
Upper Colorado River Commission.
______
Statement of Gerald R. Zimmerman, Executive Director, Colorado River
Board of California
Mr. Chairman and Members of the Committee, thank you for this
opportunity to submit written testimony regarding S. 1171. Set forth
below are initial comments regarding the provisions in S. 1171 from the
perspective of the Colorado River Board of California.
I am the Executive Director of the Colorado River Board of
California (CRB), the agency in California created by State statute to
protect California's rights and interests in the resources provided by
the Colorado River and to represent California in discussions and
negotiations regarding the Colorado River and its management.
California's rights and interests in the water and power resources of
the Colorado River System are vital to the State's economy. Seven
counties in Southern California, with more than half of the state's
population, receive water and hydroelectric energy from the Colorado
River. All ten members on the CRB are appointed by the Governor.
The CRB has reviewed S. 1171, and its companion bill H.R. 1970.
From our initial review of the proposed legislation, CRB does not, in
any way, oppose the Navajo-Gallup Project; and it fully recognizes the
value and importance of the Project to the State of New Mexico and to
the residents of the Navajo Nation. However, the CRB does want to
ensure that legislation of this nature is consistent with the law of
the river and is reflective of broader concerns of the State of
California. In that regard, the CRB does have a number of comments on
the proposed legislation, primarily from the perspective of the law of
the Colorado River. These comments are listed in order of the topic's
appearance in the legislation.
section 101--top water bank
Arrangements of this nature are being utilized in various parts of
the West where the reservoir circumstances facilitate this sort of
interim water storage. However, in this situation the legislation does
not clarify how the water to be stored in the top water bank must be
developed. It is the position of the CRB that the legislation should be
modified to provide that only water created through extraordinary
conservation may be stored in the top water bank. In other words, water
could only be stored if that water would have otherwise been
beneficially used except for the implementation of extraordinary
conservation measures. Furthermore, as provided in S. 1171, it should
be the first water to be spilled.
section 102--amendment of the 1963 act
This section amends 43 USC 615 jj, which was enacted in 1962 as a
component of the Navajo Irrigation Project and San Juan-Chama Project
authorizing legislation. Section 2 of the 1962 Act is eliminated and a
much more detailed provision has been substituted. While the CRB does
not have any substantive concerns related to Section 102, it notes that
the wording in subpart (b), relating to priorities in times of
shortages is not clear as to whether the first rights listed are to
have priority over the others or are the first to be cut back.
Clarification of this provision would be useful in obtaining a full
understanding of the intention behind the proposed legislation.
section 201--funding via the 1902 act reclamation fund
This section of the proposed legislation provides a creative
mechanism for funding implementation of settlement agreements and
completion of the Navajo-Gallup Project. The CRB understands that
Section 201 provides that $1.1 billion would be deposited into the
treasury before it is set to terminate on September 30, 2030.
Section 201 (c)(3) provides that completion of the Navajo-Gallup
Project will be given a priority, for up to as much as $500 million, if
the federal share of Project costs has not been otherwise provided by
January 1, 2018. Since the Reclamation Fund is made viable through the
repayment of reclamation projects from around the West, many of which
are in the State of California, the CRB questions the fairness of
providing to the Navajo-Gallup Project a priority position to receive
up to one-half of all funds designated for deposit into the new
settlements fund. Prior to any decision to support or oppose this
section of the bill, the CRB will need to consider this matter further
accounting for the likely needs of California projects that are linked
to settlement agreements involving the United States. One approach may
be to have the new fund be a source of revenue for the Navajo-Gallup
Project should additional federal funding be necessary by 2018 on a
basis of sharing with other deserving projects in the West, instead of
with a priority as set forth in Section 201.
section 303--delivery and use of water
This section of the bill gets to the heart of the concerns of the
CRB regarding the law of the Colorado River and the need to be
consistent with the Colorado River Compact of 1922. One concern is the
clear provision of authority to use water in the lower basin even
though that water will be diverted in the territory of the upper basin.
S. 1171 needs to specifically address: 1) the diversion and use
authority in the context of the 1922 Colorado River Compact, and 2)
water use in the lower basin both in New Mexico and Arizona.
A related concern is with the use of such water in the territory of
the lower basin within the State of Arizona so as to serve the
community of Window Rock on the Navajo Reservation. The State of
Arizona has asserted that such water will need to be viewed as a
portion of Arizona's lower basin apportionment and should also come
with certain attributes linked to the Central Arizona Project (CAP),
such as priority date and repayment of project operations, maintenance,
and replacement costs. Mr. D'Antonio for New Mexico has asserted that
S. 1171 should ``leave open the determination of the source of water
for use in Arizona'' and that accounting for the water as a diversion
of CAP water would ``have to be agreed to by all basin states,'' which
has not yet occurred. This issue needs to be resolved among the
Colorado River Basin states and the agreed upon solution included in S.
1171.
In the current era of pipelines being proposed to transport water
from the upper basin to the lower basin, it is imperative that
precedent-setting situations that will impact the law of the river in
one form or another be appropriately addressed. In this regard, the
transport of water from the upper basin into the lower basin within New
Mexico is a rather significant matter, but the further transport of
that water into Arizona is an additional significant step. The CRB
suggests that legislation authorizing the transportation of water
should be clear as to the attributes of the water to be used in such
circumstances; for example, the source of water (including linkage to
the Arizona Water Settlements Act, if appropriate), the priority
position of that water supply, the U.S. Supreme Court decree accounting
arrangements, and any other important attributes such as project
operations, maintenance, and replacement costs that may be associated,
for example, with the CAP water supply. Thus, the CRB recommends that
Section 303 of the bill be amended to provide these points of
clarification. In the alternative, authorization for the construction
of facilities that move water from the upper basin to the lower basin
should be eliminated from S. 1171.
If the Arizona position regarding the use of CAP-related water is
adopted, the CRB also suggests that attention be given to what
additional authority may be needed so as to clearly provide that CAP-
related water may be delivered by the Secretary to a portion of Arizona
not contemplated as a part of the CAP service area at the time of its
authorization in 1968.
section 306 (f)(3) and section 302 (f)(3)
Application of the Endangered Species Act--These sections of the
bill address the ``application of the'' ESA, but it is unclear as to
the intended effect of these provisions.
The State of Arizona has taken the position that S. 1171 and H.R.
1970 should not be enacted without a parallel settlement of the rights
of the Navajo Nation in Arizona, arguing that all Indian water rights
settlements should be comprehensive if possible. Although the CRB
understands and appreciates the position of Arizona on this issue, the
CRB is not prepared to advance a position on this specific issue at
this time.
Nevertheless, it is important to express our concern over the
lawsuit filed by the Navajo Nation in 2003 in the United States
District Court in Arizona. California agencies represented on the CRB
have intervened in that litigation. That suit contains claims that
challenge some very important lower basin water management programs.
For example, the suit challenges a number of matters related to
California's Quantification Settlement Agreement (QSA): 1) that the
National Environmental Policy Act (NEPA) compliance process for the QSA
was flawed; 2) that the Record of Decision associated with the
Secretary's approval of the QSA and the Inadvertent Overrun and Payback
Policy (IOPP) is flawed; 3) that the NEPA compliance process for the
IOPP is flawed; and 4) that the NEPA compliance process for the Interim
Surplus Guidelines was flawed.
Similarly, the Navajo Nation has challenged the Arizona Water
Banking Authority's interstate storage program and the federal
regulations promulgated to facilitate that program. The Navajo Nation
asserts these claims on the foundation that these kinds of water
management actions have an impact on the Nation's claim to Colorado
River water in Arizona and its eventual use of that water. However, in
reality none of these actions or programs impacts the amount of water
available to the Nation as a part of the Nation's federal reserved
rights claims, as a practical matter (actual water supply) or in
relation to the availability of Arizona's unused apportionment to
satisfy the Nation's lower basin claims. This lawsuit presents a cloud
over these important river management programs that are of benefit to
the basin states. As a result, the CRB suggests that it be a high
priority to obtain a dismissal of that suit whether in the context of
the Arizona settlement, the New Mexico settlement, or both.
In closing, I want to reiterate that the CRB does not oppose the
Gallup-Navajo Project; however, it does want to ensure that
legislation, such as S. 1171, is consistent with the law of the river
and is reflective of the broader concerns of the State of California.
Additionally, the comments set forth above have been advanced on the
basis of a rather rushed review of the proposed legislation and the
comments of others. As such, the CRB would like to reserve its
opportunity to revise any of the positions advanced above and to add
its comments, if additional points of concern come out of this process.
On behalf of the CRB, I want to thank the subcommittee and
committee for the opportunity to provide this testimony and for giving
attention to the comments of the CRB.
______
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC, June 15, 2007.
Rob Portman,
Director, Office of Management and Budget, 725 17th Street, N.W.,
Washington, DC.
Dear Director Portman: We are writing in hopes of initiating a
constructive dialogue with the Office of Management and Budget (OMB)
regarding several pending Indian water rights settlements in New
Mexico. The settlements would resolve litigation involving the United
States through a negotiated agreement of Indian water rights claims
filed in several ongoing genera] stream adjudications, many of which
were initiated by the United States. One such case has tasted more than
40 years. Resolution of these claims have numerous benefits, including
(1) improving water management by providing certainty as to the rights
of water users; (2) avoiding the direct and indirect costs of
litigation to all parties; (3) acting consistent with the Federal trust
responsibility to Native Americans; and (4) settling all liability
issues associated with the claims.
As your staff is aware, we have three settlements in New Mexico for
which we expect legislative action this year. The largest involves the
Navajo Nation's water rights claims in the San Juan River basin. We
have introduced legislation to implement this settlement (S. 1171) and
expect to have a hearing before the Energy & Natural Resources
Committee this month. The other settlements involve the Aamodt case,
addressing the claims of four Pueblos in the Rio Pojoaque, and the
Abcyta case, addressing Taos Pueblo's claims in the Rio Pueblo de Taos
(see our earlier letter of May 22, 2007).
The Administration's recent testimony on the Duck Valley Water
Rights Settlement Act, and statements by Administration officials
regarding the New Mexico settlements, give us strong concern that the
Administration is changing its policies on Indian water rights
settlements to the detriment of New Mexico. In particular, it now
appears that the Administration is interpreting it criteria and
procedures for participating in settlements in an overly restrictive
manner, unprecedented by any Administration.
The Duck Valley testimony is replete with statements asserting that
the State of Nevada should pay a substantial portion of the costs of
the settlement. With respect to New Mexico, Administration officials
have also stated that there should be no federal contribution for any
non-Indian benefits contained in a settlement. These statements are
inconsistent with the Administration's position on three recent
settlements signed into law by the President: (1) the Arizona Water
Rights Settlement Act (P.L. 108-451); (2) the Snake River Water Rights
Settlement Act (P.L. 108-447); and (3) the Zuni Indian Tribe Water
Rights Settlement Act (P.L. 108-34). The Administration's testimony on
these settlements did not raise these issues, nor did the testimony
discuss federal liability as the basis for determining the level of
federal contribution. Moreover, asserting that there should be no
Federal contribution for non-Indian benefits in a settlement makes
little sense when put into context. The Administration has actively
supported legislation to authorize the Water 2025 and Rural Water
programs which contain provisions to allow for a 50% and 75% federal
cost-share respectively. The projects included in the New Mexico
settlements all fall within those programs and, at a minimum, should
not be held to different standards merely because they are associated
with settlements. The contrary is true. They should engender more
support since they are helping to resolve long-standing Federal claims
and issues.
Finally, much has been made of the cost of the New Mexico
settlements. Granted, they are expensive, but the delegation has worked
closely with the parties to reduce the costs. Also, the federal
contribution being sought will be spread out over 15-20 years. As noted
earlier, over the past four years the President has signed into law
three settlements that will ultimately cost the Federal treasury almost
$2.5 billion. The Administration has followed that with active support
for a non-Indian water-related settlement involving the San Joaquin
River in California that will cost approximately $650 million. It's
also worth noting that during this same time period, the Administration
has invested over $1.6 billion in international water supply programs
and spent an additional $2.3 billion on water infrastructure and
management in Iraq. While these expenditures have been necessary to
meet acute needs, the situation that exists on the Navajo Reservation,
where over 40% of the residents must haul water and have incomes below
the national poverty level, is no less acute.
We sincerely hope that OMB reassesses the position it's been
signaling on the New Mexico settlements. Failure to support these
settlements will result in endless litigation and do nothing to address
the pressing need for water that exists in many areas of the country.
These matters involve long-neglected federal responsibilities and it is
unacceptable policy to have OMB arbitrarily determining winners and
losers in the realm of western water. Having worked with you before, we
are appealing to you for a better result. We appreciate your
consideration of this matter and look forward to hearing from you in
the near future.
Sincerely,
Jeff Bingaman,
Chairman,
Pete V. Domenici,
Ranking Member.