[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]
H.R. 3478, AND H.R. 745
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
on
H.R. 3478
THE COLORADO UTE SETTLEMENT ACT AMENDMENTS OF 1998
H.R. 745
A BILL TO DEAUTHORIZE THE ANIMAS-LA PLATA FEDERAL RECLAMATION PROJECT
__________
JULY 28, 1998, WASHINGTON, DC
__________
Serial No. 105-103
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/house
or
Committee address: http://www.house.gov/resources
U.S. GOVERNMENT PRINTING OFFICE
50-754 CC WASHINGTON : 1998
------------------------------------------------------------------------------
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana GEORGE MILLER, California
JAMES V. HANSEN, Utah EDWARD J. MARKEY, Massachusetts
JIM SAXTON, New Jersey NICK J. RAHALL II, West Virginia
ELTON GALLEGLY, California BRUCE F. VENTO, Minnesota
JOHN J. DUNCAN, Jr., Tennessee DALE E. KILDEE, Michigan
JOEL HEFLEY, Colorado PETER A. DeFAZIO, Oregon
JOHN T. DOOLITTLE, California ENI F.H. FALEOMAVAEGA, American
WAYNE T. GILCHREST, Maryland Samoa
KEN CALVERT, California NEIL ABERCROMBIE, Hawaii
RICHARD W. POMBO, California SOLOMON P. ORTIZ, Texas
BARBARA CUBIN, Wyoming OWEN B. PICKETT, Virginia
HELEN CHENOWETH, Idaho FRANK PALLONE, Jr., New Jersey
LINDA SMITH, Washington CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California CARLOS A. ROMERO-BARCELO, Puerto
WALTER B. JONES, Jr., North Rico
Carolina MAURICE D. HINCHEY, New York
WILLIAM M. (MAC) THORNBERRY, Texas ROBERT A. UNDERWOOD, Guam
JOHN SHADEGG, Arizona SAM FARR, California
JOHN E. ENSIGN, Nevada PATRICK J. KENNEDY, Rhode Island
ROBERT F. SMITH, Oregon ADAM SMITH, Washington
CHRIS CANNON, Utah WILLIAM D. DELAHUNT, Massachusetts
KEVIN BRADY, Texas CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania DONNA CHRISTIAN-GREEN, Virgin
RICK HILL, Montana Islands
BOB SCHAFFER, Colorado RON KIND, Wisconsin
JIM GIBBONS, Nevada LLOYD DOGGETT, Texas
MICHAEL D. CRAPO, Idaho
Lloyd A. Jones, Chief of Staff
Elizabeth Megginson, Chief Counsel
Christine Kennedy, Chief Clerk/Administrator
John Lawrence, Democratic Staff Director
------
Subcommittee on Water and Power Resources
JOHN T. DOOLITTLE, California, Chairman
KEN CALVERT, California PETER A. DeFAZIO, Oregon
RICHARD W. POMBO, California GEORGE MILLER, California
HELEN CHENOWETH, Idaho OWEN B. PICKETT, Virginia
LINDA SMITH, Washington CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California SAM FARR, California
WILLIAM M. (MAC) THORNBERRY, Texas ADAM SMITH, Washington
JOHN B. SHADEGG, Arizona RON KIND, Wisconsin
JOHN E. ENSIGN, Nevada LLOYD DOGGETT, Texas
ROBERT F. SMITH, Oregon ---------- ----------
CHRIS CANNON, Utah ---------- ----------
MICHAEL D. CRAPO, Idaho
Robert Faber, Staff Director/Counsel
Joshua Johnson, Professional Staff
Steve Lanich, Minority Staff
C O N T E N T S
----------
Page
Hearing held July 28, 1998....................................... 1
Statement of Members:
DeFazio, Hon. Peter A., a Representative in Congress from the
State of Oregon............................................ 6
Prepared statement of.................................... 6
Doolittle, Hon. John T., a Representative in Congress from
the State of California.................................... 1
McInnis, Hon. Scott, a Representative in Congress from the
State of Colorado.......................................... 2
Prepared statement of.................................... 4
Petri, Hon. Thomas E., a Representative in Congress from the
State of Wisconsin......................................... 9
Prepared statement of.................................... 11
Redmond, Hon. Bill, a Representative in Congress from the
State of New Mexico........................................ 7
Prepared statement of.................................... 8
Statement of Witnesses:
Arthur, George, Vice Chairman, Resources Committee, The
Navajo Nation Accounts..................................... 39
Atcitty, Thomas E., President, the Navajo Nation, prepared
statement of............................................... 62
Duncan, Mark, Chair, San Juan Water Commission, and Chairman
Pro Tem, San Juan County Commission, New Mexico............ 41
Prepared statement of.................................... 120
Frost, Clement, Chairman, Southern Ute Indian Tribe;
accompanied by Leonard C. Burch, Past President and Council
Member..................................................... 26
Prepared statement of.................................... 49
Isgar, Jim, Member, The Animas-La Plata Water Conservancy
District................................................... 32
Prepared statement of.................................... 59
Knight-Frank, Judy, Chairman, The Ute Mountain Ute Tribe..... 28
Prepared statement of.................................... 52
Martinez, Eluid, Commissioner, Bureau of Reclamation,
Department of the Interior................................. 17
Prepared statement of.................................... 74
Potter, Lori, Attorney, Kelly/Haglund/Garnsey/ & Kahn LLC,
Denver, Colorado........................................... 40
Prepared statement of.................................... 100
Remington, Sage Douglas, Southern Ute Grassroots Organization 30
Prepared statement of.................................... 53
Romer, Hon. Roy, Governor of the State of Colorado........... 12
Turney, Thomas C., State Engineer, State of New Mexico....... 15
Prepared statement of.................................... 48
Utton, Orion, President, Animas River Agricultural Water
Users Association, San Juan County, New Mexico............. 37
Prepared statement of.................................... 60
Additional material supplied:
Blassingame, Charles, Board Member, La Plata Conservancy
District, La Plata, New Mexico, prepared statement of...... 65
Griswold, Richard K. (Mike), Board Member, The Animas-La
Plata Water Conservancy District, prepared statement of.... 66
Johnson, Hon. Gary E., Governor, State of New Mexico,
prepared statement of...................................... 48
Klapper, Gail H., Member-Director, Colorado Forum, prepared
statement of............................................... 136
Kroeger, Fred V., President, Southwestern Water Conservation
District, prepared statement of............................ 67
Norton, Gale A., Attorney General, Colorado, prepared
statement of............................................... 63
Pakootas, Joseph A., Chairman, Colville Business Council,
Confederated Tribes of the Colville Indian Reservation,
prepared statement of...................................... 69
Ute Mountain Ute Tribe, Southern Ute Indian Tribe, prepared
statement of............................................... 137
Communications submitted:
``Revised Animas-La Plata, A Report to the San Juan Water
Comission''................................................ 84
Res. 98-921, charts, etc................................. 130
HEARING ON H.R. 3478, THE COLORADO UTE SETTLEMENT ACT AMENDMENTS OF
1998 AND H.R. 745, A BILL TO DEAUTHORIZE THE ANIMAS-LA PLATA FEDERAL
RECLAMATION PROJECT
----------
TUESDAY, JULY 28, 1998
House of Representatives,
Subcommittee on Water and Power,
Committee on Resources,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:04 p.m., in
room 1334, Longworth House Office Building, Hon. John T.
Doolittle (chairman of the Subcommittee) presiding.
STATEMENT OF HON. JOHN T. DOOLITTLE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Doolittle. The Subcommittee on Water and Power will
come to order.
Today, the Subcommittee will hear from witnesses regarding
the Animas-La Plata Federal Reclamation Project. As many of you
are aware, in 1996, Colorado Governor Roy Romer and Lieutenant
Governor Gail Schoettler began discussions with its supporters
and opponents. The original authorized Animas-La Plata Project,
H.R. 3478, introduced by Mr. McInnis is based upon those
negotiations.
This bill is a modified Animas-LaPlata Project that
includes a 260,000-acre feet reservoir, a pumping plant, and
inlet conduit. H.R. 745, offered by Ranking Minority Member Mr.
DeFazio, would deauthorize the project. One major difference
from the original authorized project is a change in the
anticipated diversion of water from the Animas River. In 1996,
the biological opinion was issued that determined that
additional water would be needed to accommodate the
environmental concerns in the Animas River. With this
information, the change in the allowable depletion was
negotiated and project beneficiaries agreed to reduce the
annual water depletion to approximately 57,000 acre feet.
Additionally, Mr. McInnis' bill addresses the construction
of the selection of the original component of the project. It
does not deauthorize any of the 1986 Animas-La Plata Project,
as H.R. 745 does. It is anticipated that even if H.R. 3478
became law and the reservoir pumping plant and inlet conduit
are built, both Indian and non-Indian stakeholders will need
additional financial assistance to complete the original
authorized Animas-La Plata Project.
Although the costs for the project have been reduced, this
phased approach leaves open the question of where the money
will come from for any future phase that may be needed to
complete the original authorized project. Those future issues
must be addressed for the project to deliver water to the
majority of the intended beneficiaries. Other possibilities
involving in the sale of water may affect those questions.
While there is no question about the need to settle the
Indian water rights issues and improve the water systems in the
affected communities, it is essential to identify the
appropriate funding mechanisms to resolve those problems. I'm
looking forward today to hearing from our witnesses regarding
their ideas and how to remedy these water supply issues, as
well as how to most appropriately fund the construction of the
entire authorized project or as such components are deemed
essential. I'll also be interested in each party's view of what
would happen after construction. Why the original plan
shouldn't be followed and which compromises they see as
critical.
We'll recognize Mr. DeFazio for his comments when he
arrives.
I think in the interest of time, we'll begin with Mr.
McInnis and Mr. Petri, who's just arriving. Then when Governor
Romer--oh, he'll be on the first panel.
Let me just say, because of the extraordinary situation we
have today with the services for the slain officers, it is my
intent to take the Members first on this panel. It's my
understanding it'll be a quorum call near 2:30. We'll recess
and go over for the memorial services. Those are expected to be
about one-half hour, beginning at 3 p.m. Then we'll reconvene
immediately following that. So it's anticipated, if they stick
to schedule, we might be able to back here and reconvene by
about 3:45 p.m. Otherwise, it will 4 o'clock.
So, Mr. McInnis, we're pleased to have you here and
recognize you for your testimony.
STATEMENT OF HON. SCOTT McINNIS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF COLORADO
Mr. McInnis. Thank you, Mr. Chairman. Mr. Chairman, I might
note that there have been comments that we need to settle the
Indian water rights issue. I should bring to the attention of
the Committee we have settled the Indian water rights issue on
a number of occasions. But continually the United States
Government--primarily through its elected bodies and some of
the more radical environmental groups, in my opinion--have
pulled the U.S. Government from the agreement that they've
made. In other words, they have breached the settlement that
was made.
I do thank you and the members of the Subcommittee. I'll
point out one other thing, Mr. Chairman. The poster that you
see up here, that is the full Animas-La Plata Project. Working
with the Lieutenant Governor and Governor of the State of
Colorado--both Democrats--and coming up with some type of
reduced or light Animas-La Plata, we came up with S.R. 1771.
You'll see what S.R. 1771 contains that the full Animas-La
Plata--or what's excluded from the full Animas-La Plata.
I appreciated the opportunity to come over here today, Mr.
Chairman, before the Committee on behalf of H.R. 3478, which is
a bill to amend the Colorado Ute Water Rights Settlement Act to
provide for a final distribution of the claims of the Colorado
Ute Indian Tribes.
I introduced this legislation on March 17, 1998. More
importantly, I would like to commend you on your continued
involvement on this issue, as we work to satisfy the terms of
the Colorado Ute Water Rights Settlement Act. As you know
today's hearing is the first crucial step that must be taken to
ensure that the Federal Government does not fail once again to
fulfill the commitment that they made to the Ute tribe. I,
along with the State of Colorado, the Southern Ute Indian
Tribe, the Ute Mountain Ute Indian Tribe, the Animas-La Plata
Water Conservancy District, the Southwestern Water Conservation
District will represent the Colorado component of the project
and testify in support of this bill.
Mr. Chairman, H.R. 3478 focuses on the three main
requirements necessary to fulfill our Nation's obligations to
the Ute Tribes. First, it calls for a storage reservoir to be
built to hold the promised water. Second, the bill provides the
conveyance needed to transport the water to the reservoir.
Finally, the legislation would guarantee the Ute Tribe the
water in that reservoir. These three items are the minimum
needed to fulfill the obligation the United States has
contractually made with the Ute Indian Tribe.
This agreement was signed back in the sixties--the 1860's.
The Treaty of 1868 promised the Ute Indian Tribes a permanent,
reliable source of water. In 1988, another agreement, the
Colorado Ute Indian Water Rights Settlement Act, reaffirmed
those rights.
I would note, Mr. Chairman, I was in the State legislature
on the Agriculture Committee, chairman of the Agriculture
Committee for a number of years, when we made that agreement. I
should also note there was not one environmental group, not one
outside party, who objected to that agreement; everyone agreed
to it.
Under H.R. 3478, the outstanding water rights on Animas-La
Plata Rivers of the Ute Mountain Ute and the Southern Indian
Tribes would be resolved by the construction of three
facilities--the Durango pumping plant, the inlet conduit, and
the Ridge Basin Reservoir. The facilities were approved by the
United States Fish and Wildlife Service under the Endangered
Species Act. Additionally, the tribes would receive 33,050 acre
feet of the 57,100 acre feet depletion approved by Fish and
Wildlife for use from the these three facilities.
H.R. 3478 would also provide much-needed water for a dry-
year supply from the New Mexico cities of Farmington, Aztec,
and Bloomfield. The new proposal eliminates the pre-existing
water quality concerns because the legislation would no longer
require the construction of all of phase 1 of the original
project. More importantly, H.R. 3478 would ensure that this
important settlement could be achieved consistent with the
requirements of the Endangered Species Act.
Finally, the 1988 Act called for a larger project than is
before us now which had a price tag of $681 million. H.R. 3478
is expected to be $400 million less.
Mr. Chairman, H.R. 3478 is the result of discussions
between the project supporters and opponents that were
initiated by the State of Colorado and the Secretary of
Interior Babbitt. Both sides of the dispute regarding the
Animas-La Plata were asked to develop an alternative they
believe met the purposes of the ALP. Last summer, both sides
came forth with their proposals. The two Ute Tribes have
formally rejected the project opponents' proposal to provide
the tribes with money rather than water.
Additionally, the State of Colorado and local water users
have also strongly opposed that concept. Furthermore, the
tribal leadership has rejected the concept of buying existing
State water rights, primarily because of the uncertainty and
inflexibility of the resulting water supply, as well as the
difficulties that would arise over management and taxation of
the purchased resources.
As the Subcommittee is aware, it has always been the tribal
objective to obtain a firm supply of water to meet their
present and future needs without displacing the uses of their
non-Indian neighbors. Congress recognized this in 1988 by
stating that only a storage facility can accomplish that goal.
Simply put, Mr. Chairman, a scaled-down version of the
Animas-La Plata Project has been altered to address concerns
raised about the original project. The Ute Tribes have accepted
this proposal even though it is significantly less than what
they were first offered. The tribes are not accepting a smaller
offer because it meets all their needs. The Utes are willing to
accept this deal for a very simple reason--the tribes need
water. They need water.
The Ute Indians are hoping they can rely on the Animas-La
Plata Project for the water needs and they are hoping they can
rely on the government that promised them the water in the
1860's to follow-through on delivering this water. Opponents of
this project have said that they cannot agree with a project
that does not have to complete the usual environmental studies
and requirements. I completely agree with them. An undertaking
of this magnitude will make a big impact and the environmental
aspects of it should be studied. It is good, then, that so much
work has been done on the environmental situation. The Bureau
of Reclamation has already spent $20 million on environmental
studies. Fish and Wildlife is determined that a depletion
amount of 57,100 acre feet will not endanger native fish.
I believe that any further demands for environmental work
at this point are clearly and merely stalling tactics. There
are many reasons to support this project. I think the best
reason is not because a larger project was already authorized
by Congress, not because it's 10 years overdue, not even
because it may save the country over $400 million. The best
reason, Mr. Chairman, is simply this project should be
supported is because it is the duty and the Treaty obligation
of the United States to the Ute Indian Tribes.
I thank you for your time, Mr. Chairman.
[The prepared statement of Mr. McInnis follows:]
Statement of Hon. Scott McInnis, a Representative in Congress from the
State of Colorado
Mr. Chairman, I thank you and the members of the
Subcommittee on Water and Power for holding this hearing. I
appreciate the opportunity to testify before the Subcommittee
on behalf of H.R. 3478, a bill to amend the Colorado Ute Indian
Water Rights Settlement Act to provide for a final settlement
of the claims of the Colorado Ute Indian Tribes. I introduced
this legislation on March 17, 1998. More importantly I would
like to commend you on your continued involvement in this
process as we work to satisfy the terms of the Colorado Ute
Indian Water Rights Settlement Act. As you know, today's
hearing is the first crucial step that must be taken to ensure
that the Federal Government does not fail to fulfill the
commitment we have made to the Ute tribes.
I, along with, the State of Colorado, the Southern Ute
Indian Tribe, the Ute Mountain Ute Indian Tribe, the Animas-La
Plata Water Conservancy District, and the Southwestern Water
Conservation District, will represent the Colorado component of
the project and testify in support of H.R. 3478.
Mr. Chairman, H.R. 3478 focuses on the three main
requirements necessary to fulfill our nation's obligation to
the Ute Tribes. First, it calls for a storage reservoir to be
built to hold the promised water. Second, the bill provides the
conveyance needed to transport water to the reservoir. Finally,
the legislation would guarantee the Ute tribes the water in
that reservoir. These three items are the minimum needed to
fulfil the obligation the United States has with the Ute Indian
Tribe. This agreement was signed back in the 60's--the 1860's.
The treaty of 1868 promised the Ute Indian Tribes a permanent,
reliable source of water. In 1988, another agreement, the
Colorado Ute Indian Water Rights Settlement Act, reaffirmed
these rights.
Under H.R. 3478, the outstanding water rights on the Animas
and La Plata Rivers of the Ute Mountain Ute and Southern Ute
Indian Tribes would be resolved by the construction of the
three facilities, the Durango Pumping Plant, the inlet conduit,
and Ridges Basin Reservoir, these facilities were approved by
the United States Fish and Wildlife Service under the
Endangered Species Act, 16 U.S.C. 1531 et seq. Additionally,
the Tribes would receive 33,050 acre feet of the 57,100 acre
feet of depletion approved by the Fish and Wildlife Service for
use from these three facilities. H.R. 3478 would also provide
much needed water for dry year supplies for the New Mexico
cities of Farmington, Aztec and Bloomfield. The new proposal
eliminates the pre-existing water quality concerns because the
legislation would no longer require the construction of all of
Phase I of the original Project. More importantly, H.R. 3478
would ensure that this important settlement could be achieved
consistent with the requirements of the Endangered Species Act.
Finally, the 1988 Act, called for a larger project than is
before us now, which had a price tag of about $681 million,
H.R. 3748 is expected to be $400 million less.
Mr. Chairman, H.R. 3478 is the result of discussions
between project supporters and opponents that were initiated by
the State of Colorado and Secretary of the Interior Babbitt.
Both sides of the dispute regarding Animas La Plata (ALP) were
asked to develop an alternative that they believed met the
purpose of the ALP. Last summer, both sides came forward with
their proposals. The two Ute tribes have formally rejected the
project opponents' proposal to provide the tribes with money
rather than wet water. Additionally, the State of Colorado and
local water users have also strongly opposed that concept.
Furthermore, the tribal leadership has rejected the concept of
buying existing state water rights, primarily because of the
uncertainty and inflexibility of the resulting water supply, as
well as the difficulties that would arise over the management
and taxation of the purchased resources. As the Subcommittee is
aware, it has always been the tribal objective to obtain a firm
supply of water to meet their present and future needs without
displacing the uses of their non-Indian Neighbors. Congress
recognized this in 1988 by stating that, only a storage
facility can accomplish that goal.
Simply put, the scaled down version of the Animas La Plata
Project has been altered to address concerns raised about the
original project. The Ute Tribes have accepted this proposal
even though it is significantly less than what they were first
offered. The Tribes are not accepting a smaller offer because
it meets all their needs. The Utes are willing to accept this
deal for a very simple reason: The Tribes need water. The Ute
Indians are hoping they can rely on the Animas La Plata Project
for their water needs, and they are hoping they can rely on the
Government, that promised them that water, to follow through on
delivering the water.
Opponents of this project have said they cannot agree with
a project that does not have to complete the usual
environmental studies and requirements. I agree with them. An
undertaking of this magnitude will make a big impact, and the
environmental aspects of it should be studied. It is good,
then, that so much work has been done on the environmental
situation. The Bureau of Reclamation has itself spent about $20
million on environmental studies and the Fish and Wildlife
Service has determined that the depletion amount of 57,100 acre
feet will not endanger native fish. I believe, that any further
demands for environmental work, at this point, are merely
stalling tactics.
There are many reasons to support this project. I think the
best reason is not because a larger project was already
authorized by Congress, not because it is ten years overdue,
and not even because it may save the country over $400 million.
The best reason is simply that this project should be supported
because it is the duty and treaty obligation of the United
States to the Ute Indian Tribes. Thank you Mr. Chairman.
Mr. Doolittle. Thank you. The Chair will recognize our
Ranking Member for the purposes of making his opening
statement.
STATEMENT OF HON. PETER A. DeFAZIO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Mr. DeFazio. Thank you, Mr. Chairman. I regret that I was
delayed a few minutes in arriving. This really is--although
this is called ``Animas-La Plata Lite'' by some, we're really
revisiting many of the defects of the original Animas-La Plata
Project. In fact, the original Animas-La Plata Project would
still be authorized, as should be Mr. McInnis' bill should be
passed. In fact, it has a special provision for--in H.R. 3478
for section 4(b) providing the State of Colorado's uncommitted
cost share dollars can be used to build the full project.
The bill suffers from the degree of consistency with the
Committee's usual action which is waiving environmental laws--
Endangered Species Act, Clean Water Act--as we've done recently
with all water projects on the Committee. And would, therefore,
be subject to the same threat of veto by the President should
it go through the House and the Senate in this form--as a
number of other bills which this Committee has taken up in
recent weeks--which is unfortunate to waste everyone's time in
that manner.
Further, of course, the ongoing allegation is that what we
want to do is a project to meet the rights of the tribes here.
This has the same problem as the original Animas-La Plata and
that it's going to deliver water pumped uphill but not to the
reservation. You know, it's not clear whether that water would
or could ever be delivered to the reservation. I'm committed,
as is Commissioner Martinez, who I believe we'll hear from
later and others, that we meet our Treaty obligations. That we
deliver water--real water--to the tribe for their use. But I
would suggest that rushing forward with H.R. 3478, at this
point and time, is not going to meet the deadlines--the very
real deadlines that loom. That is, under the original
agreement, the tribe has until 2005 to return to court to
obtain its settlement through the courts for each Treaty
rights.
If this project were started on October 1st, Bureau of Rec
isn't--certainly isn't prepared to do that--but if all
environmental laws were waived; if this Committee did sanction
this project; and if for some reason the White House didn't
veto--the President--the project would be anticipated to be
completed about 2010. Again, with no certain delivery to the
tribes. I believe the tribes would, in all probability, then
refile in--before the end of 2005--and we'd be right back where
we started pending litigation except for a few hundred million
dollars that the Federal taxpayers would be laying out for
Animas-La Plata Lite. So I will oppose legislation should it
move and would support the White House and its threats of a
veto. I thank the chairman for his indulgence.
[The prepared statement of Peter DeFazio follows:]
Statement of Hon. Peter A. DeFazio, a Representative in Congress from
the State of Oregon
Mr. Chairman:
H.R. 3478 suffers from a host of defects. It is an effort
to rush a large water project into construction without
adequate cost-benefit analysis or environmental review. We
don't even have a reliable estimate of the cost of this new and
unstudied project. The bill waives environmental laws,
including the Endangered Species Act and the Clean Water Act.
It creates an unprecedented new subsidy for non-Indian water
users. And not only does it fail to deliver a single drop of
water to the Indian tribes it is supposed to benefit, the
Bureau of Reclamation questions whether the facilities included
in H.R. 3478 would even be able to function independently.
Let's not be deceived by talk of something called Animas-La
Plata Lite. H.R. 3478 is all about building the original
Animas-La Plata project. The bill's supporters make that
perfectly clear by their refusal to consider deauthorizing
those portions of the original project that go beyond the scope
of A-LP Lite. H.R. 3478 spells it out in section 4(b) by
providing that the State of Colorado's uncommitted cost-share
dollars can be used to build the full project.
I heartily endorse and support the position taken by
Commissioner Martinez and the Bureau. We all share a desire to
satisfy the legitimate water rights claims of the Ute Indians.
Let's be clear that much has already been done towards that
end. The Bureau has completed construction of the Dolores
Project to enable delivery of water to the Ute Mountain Ute
Reservation. More than $60 million in development funds have
been provided to the two Tribes. Final consent decrees have
been entered into on all rivers where the Tribes claim water in
order to supply agreed upon quantities of water to the two
Tribes.
I share Commissioner Martinez's support for delivering
additional wet water for the Tribes' use. A-LP Lite doesn't do
that. At a minimum, this new proposal needs to undergo the same
kind of study and review that my Republican colleagues would
insist upon for any other large expenditure of public funds.
There is absolutely no justification for rushing this into law
before that review is complete.
Mr. Doolittle. Thank you. Mr. Redmond, you're recognized
for your testimony.
STATEMENT OF HON. BILL REDMOND, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW MEXICO
Mr. Redmond. Thank you, Mr. Chairman, for holding this
hearing--for giving me the opportunity to show my support for
H.R. 3478, the Animas-La Plata Water Project.
As you know, the Animas-La Plata Project has been
controversial work-in-progress for over four decades. In spite
of what you just heard, that we're rushing forward, I think 150
years is long enough for us to keep our word. As Members of
Congress who do not represent districts in the West, who do not
understand the situation with water that we have in the four
corners area of New Mexico, Colorado, Utah, and Arizona--this
is one of the most significant areas--one of the most
significant projects for the four corners area. But one of the
largest tribal populations in America, I want you to understand
why this project is necessary.
I don't know how many of your are from the Southwest, but
as you probably know, it's dry in the Southwest. Water is not a
small matter where we live. Here in Washington, DC, which is
built over swamp, and Virginia and Maryland, you don't have to
go far to find a stream, or a river, or a lake, or an ocean. In
New Mexico, you could drive hundreds of miles without seeing a
drop of water. When a community in the Southwest begins to grow
and expand like the communities in Farmington and the San Juan
area, support for those communities is dependent on a water
supply.
When a tribe, or tribes, in the remote area of the four
corners such as the Ute Mountain Ute Tribe and the Southern Ute
Tribe are still carrying their water in buckets from the rivers
to their homes--a water supply plan is necessary. These two
issues are the reason that I support H.R. 3478 to authorize the
funding and con-
struction of the Animas-La Plata Water Project. After 40 years
of discussions about its importance, in 1986 Congress passed
the Colorado Ute Indian Water Rights Settlement Act which was
designated to resolve all the water rights claims of the two
Colorado Ute Indian Tribes in a way to provide the tribes with
water they deserve and need--and the surrounding communities in
Colorado and New Mexico, the water that they want to help their
communities, as well.
In 1986, the statute was the culmination of the efforts
that began in the 1930's. For over 4 years, the State of New
Mexico and the communities in the northwest corner of the State
have supported Animas-La Plata Project, due to the recognized
need for the dependable water supply. I was only 2 years old
when the Native Americans in the Southwest were carrying their
waters in buckets. I'm now 44 years old and they're still
carrying their waters in buckets to their homes.
For over 40 years, at a cost of over $53 million, the
government has studied, and studied, and studied, and studied
the planning and the environmental impacts of the Animas-La
Plata. The environmental concerns have been addressed over and
over again to meet the constant updated regulatory standards
mandated by the National Environmental Policy Act, the Clean
Water Act, and the Endangered Species Act.
Because of the cost concerns associated with the Federal
Government's share of implementation, the project has been
scaled back by over $400 million. H.R. 3478 settles tribal
claims, in spite of what was previously stated; addresses water
quality concerns; significantly reduces the cost of the
project; provides protection for existing water right holders
in New Mexico; and allows the State of New Mexico and the
Northwest corner to adequately develop water supplies to meet
the needs of their arid communities.
I appreciate your interest in this legislation and I'm
willing to work with you and the interested parties to resolve
any further concerns you may have. Thank you, Mr. Chairman.
[The prepared statement of Mr. Redmond follows:]
Statement of Hon. Bill Redmond, a Representative in Congress from the
State of New Mexico
Thank you Mr. Chairman for holding this hearing and for
giving me the opportunity to show my support for H.R. 3478 and
the Animas La Plata Water Project. As you all know, the Animas
La Plata project has been a controversial work in progress for
over four decades. As the Member of Congress who not only
represents the Northwest corner of New Mexico where this
project will have the most impact, but one of the largest
tribal populations in America I want you to understand why this
project is necessary.
I don't know how many of you are from the Southwest but as
you probably know it's dry out there. Water is no small matter.
Here, in Washington, DC which is built over a swamp, and in
Virginia and Maryland, you don't have to go far to find a
stream, a river, a lake or the ocean. In New Mexico, you could
drive hundreds of miles without seeing a drop of water.
When a community in the southwest begins to grow and
expand, like the communities in the Farmington/San Juan County
area, support for those communities is dependent on a water
supply plan. When a tribe or tribes in the remote four corners
area, such as the Ute Mountain Ute Tribe, and the Southern Ute
Tribe are still carrying their water in buckets from the rivers
to their homes, a water supply plan necessary. These two issues
are the reason I support H.R. 3478 to authorize the funding and
construction of the Animas La Plata Water Project, after over
40 years of discussion about it's importance.
In 1986, Congress passed the Colorado Ute Indian Water
Rights Settlement Act, which was designed to resolve all of the
water rights claims of the two Colorado Ute Indian Tribes in a
way that provided the tribes with the water they deserved and
and needed, and the surrounding communities, in Colorado and
New Mexico, the water they wanted to help support their
communities needs as well. This 1986 statute was the
culmination of efforts that begin in the 1930s.
For over 40 years the State of New Mexico and the
communities in the Northwest Corner of the State have supported
the Animas La Plata Project, due to the recognized need for a
dependable water supply. When I was two years old, there were
Native Americans in the Southwest who were carrying water in
buckets to their homes. I am 44 years old and they are still
carrying this water in buckets to their homes.
For over 40 years, at a cost of $53 million, the government
has studied the planning and environmental impacts of the
Animas La Plata. Environmental concerns have been addressed
over and over again to meet the constantly updated regulatory
standards mandated by the National Environmental Policy Act,
the Clean Water Act, and the Endangered Species Act.
Because of the cost concerns associated with the Federal
Government share of implementation, the project has been scaled
back by over $400 million.
H.R. 3478 settles tribal claims, addresses water quality
concerns, significantly reduces the costs of the project,
provides protection for existing water rights holders in New
Mexico, and allows the State of New Mexico and the Northwest
corner to adequately develop water supplies to meet the needs
of their arid communities.
I appreciate your interest in this legislation and am
willing to work with you and the interested parties to resolve
any further concerns you may have.
Mr. Doolittle. Thank you. Mr. Petri is recognized.
STATEMENT OF HON. THOMAS E. PETRI, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WISCONSIN
Mr. Petri. Thank you, Mr. Chairman. I appreciate the
opportunity to come before your Committee today on a matter of
concern to the taxpayers of the United States. Building the
Animas-La Plata Water Project is not economically or
environmentally sound and does not deliver water to the members
of the Ute Tribes on their reservations. That's why I decided
to become an original co-sponsor of H.R. 745 which would
deauthorize the project and direct the Secretary of the
Interior to enter into negotiations with the tribes to find
alternatives to fulfill their outstanding water rights claims.
In contrast, H.R. 3478, the Colorado Ute Water Rights
Settlement Act, amendments of 1998--also known as Animas-La
Lite--makes no substantial changes in the original project. As
has been pointed out, it simply reauthorizes phase 1, stage A,
of the original plan.
The Animas-La Plata Water Project was originally authorized
in 1968 in the hey-day of mammoth water projects out West.
However, Congress and the Federal Government soon abandoned
this plan because it was a waste of money to build it. For 30
years, the proponents of the project have never been able to
convince Congress otherwise. Moreover, the budgetary and
environmental landscape has changed since this project was
originally authorized making its prospects even darker than
they were initially.
The reality is that under today's budget constraints and
desire to preserve the beauty of our natural resources, this
project is unlikely ever to be built. The proponents know that
this is true and have attempted to keep the project alive by
attaching it to the Ute Tribe's water claims. It's time to
deauthorize this unjustified project once and for all.
Alternative proposals to satisfy the Ute Tribe's water
claims have been developed and are now being looked at by the
Federal Government. H.R. 745 requires the Secretary of the
Interior to look at the full range of alternatives to deliver
water to the tribes. On the other hand, H.R. 3478 attempts to
obligate the Secretary to begin construction, entirely
prematurely on one of these proposals--that is Animas-La Plata
Lite. The Bureau of Reclamation has not conducted an analysis
of the feasibility or viability of this proposal. There is no
reliable cost estimate, no benefit cost ratio, and no definite
plan report. We've never approached water resource development
with such a complete lack of planning in the history of this
Congress. This is no time to start.
Mr. Chairman, I'd like to emphasize that many provisions of
H.R. 3478 are highly controversial and I'm sure that many
members will have great concern and skepticism if it's advanced
by the House Resources Committee. H.R. 3473 does not
deauthorize any portion of the original Animas-La Plata
Project. On the contrary, it exempts major components of the
project including a pumping station, and Ridges Basin
Reservoir, from environmental laws and standard budget and
economic requirements.
Of particular concern is the new financing scheme found in
H.R. 3478. This legislation would cap repayment of capital
costs from municipal and industrial water at $29 million for
non-Indian project beneficiaries regardless of any cost
overruns that may occur. It would also release the tribes from
any capital repayment obligations, as well as any portion of
the operation and maintenance costs of the project. All
remaining costs, whatever they may ultimately be, would be
borne by the Federal taxpayers. The bill would have Congress
give a blank check for this demonstrably uneconomic project.
This is completely the reverse of the policy set in the
original 1988 Colorado Ute Indian Water Rights Settlement Act
which was predicated on full repayment with interest of all the
capital costs from municipal and industrial water development.
This new financing method violates at least five current
Federal laws. This bill also increases the Federal cost share
for the conceived project from 63 percent to a minimum of 90
percent of the cost for developing an outrageously expensive
water supply for communities that cannot demonstrate a need for
the water and clearly are unwilling to pay for it themselves.
If I were to propose that the Federal taxpayer subsidize 90
percent of the cost of developing municipal water in my State,
I'd be surprised if Members of this chamber would support such
a proposal. In general, it's been the policy of the Federal
Congress not to subsidize municipal and industrial water
development which is fundamentally a non-Federal
responsibility.
Finally, H.R. 3478 also proposes a highly controversial
waiver of environmental laws as they relate to this project.
This is generally referred to as sufficiency language. It
waives the National Environmental Policy Act, the Federal Water
Pollution Control Act, and the Endangered Species Act.
Mr. Chairman, H.R. 3478 is not a genuine alternative
solution to the Animas-La Plata Water Project conflict. It's
simply Phase 1, Stage A of the original project. It's not
really new at all and there-
fore it perpetuates all the problems with the original
project--while introducing new ones, including a dramatic
decrease in local cost share, introduction of a new class of
Federal subsidies, and highly controversial sufficiency
language.
This bill and the Animas-La Plata Project will not deliver
water to the Ute Mountain Ute and the Southern Ute
reservations. It's time to stop holding the Ute Tribes'
legitimate water rights claims hostage in order that non-Indian
interests might finally construct their great boondoggle pork
project paid for by the Federal Government. The Animas-La Plata
project should be deauthorized without further delay. Again, I
would thank Members of the Committee for inviting me today and
for your attention.
[The prepared statement of Mr. Petri follows:]
Statement of Hon. Thomas E. Petri, a Representative in Congress from
the State of Wisconsin
Mr. Chairman I appreciate the opportunity to come before
the Committee today to share my views on a matter of concern to
me and, I believe, to the taxpayers of the United States.
Building the Animas-La Plata water project is not economically
or environmentally sound and it does not deliver wet water to
members of the Ute Tribes on their reservations. That is why I
decided to become an original cosponsor of H.R. 745, which
would deauthorize the Animas-La Plata project and direct the
Secretary to enter into negotiations with the Tribes to find
alternatives to fulfill their outstanding water rights claims.
In contrast, H.R. 3478, the Colorado Ute Settlement Act
Amendments of 1998, also known as ALP-Lite, makes no
substantial changes in the original ALP project. It simply
reauthorizes Phase I, Stage A, of the original plan.
The Animas-La Plata water project was originally authorized
in 1968 in the heyday of mammoth water projects out West.
However, Congress and the Federal Government soon abandoned
this plan because it simply was a waste of money to build it.
For thirty years now the proponents of the project have never
been able to convince Congress otherwise. Moreover, the fiscal
and environmental landscape has changed since this project was
originally authorized, making its prospects even darker than
they were initially. The reality is that under today's fiscal
constraints and desire to preserve the beauty of our natural
resources this project is unlikely ever to be built. The
proponents know that this is true and have attempted to keep
the project alive by attaching it to the Ute Tribes water
claims. It's time to deauthorize this unjustified project once
and for all.
Alternative proposals to satisfy the Ute Tribes water
claims have been developed and are now being looked at by the
Federal Government. H.R. 745 requires the Secretary to look at
the full range of alternatives to deliver water to the Tribes.
On the other hand, H.R. 3478 attempts to obligate the Secretary
of the Interior to begin construction, entirely prematurely, on
one of these proposals--that is, ALP-Lite. The Bureau of
Reclamation has not conducted an analysis of the feasibility or
viability of this proposal. There is no reliable cost estimate,
no benefit/cost ratio and no definite plan report. We have
never approached water resources development with such a
complete lack of planning in the history of this Congress, and
this is no time to start.
Mr. Chairman, I would like to emphasize to you that many
provisions of H.R. 3478 are highly controversial and I am sure
that many Members will have great concern and skepticism if it
is advanced in any way by the House Resources Committee. H.R.
3478 does not deauthorize any portion of the original ALP. On
the contrary, it exempts major components of the project,
including a pumping station and Ridges Basin Reservoir, from
environmental laws and standard fiscal and economic
requirements.
Of particular concern is the new financing scheme found in
H.R. 3478. This legislation would cap repayment of capital
costs for municipal and industrial water at $13 million dollars
for non-indian project beneficiaries, regardless of any cost
overruns that may occur. It would also release the Tribes from
any capital repayment obligations, as well as any portion of
the operation and maintenance costs of the project. All
remaining costs, whatever they may ultimately be, would be
borne by the Federal taxpayer. H.R. 3478 would have Congress
give a blank check for this demonstrably uneconomical project.
This is completely the reverse of the policy set in the
original 1988 Colorado Ute Indian Water Rights Settlement Act,
which was predicated on full repayment, with interest, of all
the capital costs for municipal and industrial water
development. This new financing method violates at least 5
current Federal laws.
This bill also increases the Federal cost share for the
conceived project from 63 percent to a minimum of 90 percent of
the cost for developing an outrageously expensive water supply
for communities that cannot demonstrate a need for the water
and clearly are unwilling to pay for it. If I were to propose
that the Federal taxpayer subsidize 90 percent of the costs of
developing municipal water in my state, I would be surprised if
Members in this chamber would support such a proposal. In
general, it has been the policy of the Congress not to
subsidize municipal and industrial water development, which is
fundamentally a non-Federal responsibility.
Finally, H.R. 3478 also proposes a highly controversial
waiver of environmental laws as they relate to this project in
the form of what is generally referred to as ``sufficiency
language,'' waiving the National Environmental Policy Act, the
Federal Water Pollution Control Act and the Endangered Species
Act.
Mr. Chairman, H.R. 3478 is not a genuine alternative
solution to the Animas-La Plata water project conflict. It is
simply Phase I, Stage A, of the original project. It is not
really new at all and therefore it perpetuates all of the
problems with the original project while introducing new ones,
including a dramatic decrease in the local cost share,
introduction of a new class of Federal subsidies and highly
controversial sufficiency language.
Mr. Chairman, this bill and the Animas-La Plata project
will not deliver water to the Ute Mountain Ute and the Southern
Ute reservations. It is time to stop holding the Ute Tribes'
legitimate water rights claims hostage in order that non-indian
interests might finally construct their great boondoggle pork
project paid for by the Federal Government. The Animas-La Plata
water project ought to be deauthorized without further delay.
Again, I thank the Chair and the Committee for the
opportunity to express my concerns. Thank you for your time.
Mr. Doolittle. Thank you very much. The plan will now be to
recess the Subcommittee. Then at approximately 3:45 p.m. or as
soon as we reconvene after the conclusion of the memorial
services, we will reassemble here and hear from the members of
panel one. So the Subcommittee will stand in recess.
[Recess.]
Mr. Doolittle. The Subcommittee will reconvene to hear
testimony from our witnesses. We'll begin with panel one.
Let me ask our witnesses--it's customary that the witnesses
take the oath. So if you'd please rise and raise you right
hands.
[Witnesses sworn.]
Mr. Doolittle. Thank you. Let the record reflect each
answered in the affirmative.
Gentlemen, we're very pleased to have you here. I'm
confident that some of my colleagues will drift in, but we have
a long witness list and you have been patient to wait this long
while as it is. So I think we'll begin.
Our first witness is the Honorable Roy Romer, Governor of
the State of Colorado. Governor Romer.
STATEMENT OF HON. ROY ROMER, GOVERNOR OF THE STATE OF COLORADO
Governor Romer. Thank you, Congressman. I know we began the
second part of it right after the memorial service. I just want
to recognize, as a Governor, who lives in a capital building
daily, the risk that all of you public officials run and the
risk that those officers run. I just want to pay tribute to
those two gentlemen and their families before I make further
comments.
My name is Roy Romer. I'm Governor of Colorado. I'm pleased
to have the opportunity to share my comments on H.R. 3478 that
would authorize the construction of a smaller Animas-La Plata
Project in southwestern Colorado. For the record, I've
submitted a copy of the full text of my remarks to the
Committee. I'd like to take a moment to highlight my views.
Mr. Chairman, this is my third term as Governor. I'm in my
12th year. I was first elected in 1986, the same year the State
of Colorado signed an agreement with the Southern Ute and the
Ute Mountain Ute Indian Tribes settling a longstanding,
difficult controversy regarding the tribes' water rights. I've
been working to get the tribes the water they deserve since my
first day in office. I regret to say that, after 12 years,
we're still trying to get that job done.
I'm here to express my support for H.R. 3478. In my
opinion, this bill represents our best vehicle for satisfying
our obligations to the Ute Tribes for water. As you know, this
bill is a result of years of efforts, negotiations, and
compromise. The project was first authorized by Congress in
1968. Following the authorization, the Ute Tribes began to
assert their widely recognized right to water in the streams
and rivers that flow through the reservations based on the
Reserved Water Rights Doctrine.
Given the scarcity of water in the region and the possible
disruption that the establishment of Indian water claims would
have posed for the existing non-Indian water right holders,
Colorado sat down with the tribes in the mid-1980's to settle
the tribes' claims. The result was a 1986 Settlement Agreement.
This agreement establishes the tribes' water rights and sorts
out non-Indian water claims. It was signed by all parties--the
State, the tribes, non-Indian users, municipalities, and the
United States Department of Interior, and the United States
Department of Justice. It's a very important agreement.
It allows us to resolve possible water conflicts, preserve
the social, and economic well-being of the area, and avoids
decades of expensive litigation. Most importantly, it
acknowledges our obligation to provide water to the tribes. In
order to fulfill the obligations for water outlined in this
agreement, the agreement calls for the construction of the
Animas-La Plata Project, a project that would store water and
make it available to the tribes and other users. It was
authorized in 1968.
Congress formalized this agreement in the 1988 Settlement
Act. Now this Congress is still considering legislation on the
project. We still have not satisfied our obligations to the
tribes. Under the agreement, the tribes have the right to go to
court and to assert their claims if they do not believe that
progress is being made. That risk is real and its troubling.
Now, I understand that this delay has been brought about
because opponents of the project have raised environmental and
fiscal concerns. It was in recognition of this and the threat
of lengthy and costly litigation that the Lieutenant Governor
Gail Schoettler, of Colorado, and I brought all sides of this
issue together in an effort to discuss compromises and
consensus on all alternatives. That process was a difficult
one. It took many hours of discussion, public input, and months
of negotiation. However, we did succeed in narrowing the debate
to two alternatives.
One of the alternatives, the so-called Animas-La Plata Lite
proposal, involves the creation of a much smaller project at
less cost and less environmental impact.
The other alternative, called the Animas River Citizens'
Coalition proposal, would set aside about $100 million--$110
million for the tribes to purchase land and water rights in the
area instead of building a reservoir. It also includes adding
more storage capacity of existing water projects in the region.
Now last year, I publicly expressed support of the Animas-
La Plata Lite alternative for the following reasons. First, it
satisfies our obligation to the tribes for water. Animas-La
Plata Lite is the only alternative that tribes will accept and
will satisfy that obligation.
Second, it includes everyone--tribes and non-Indians alike.
We must have a solution for the entire region. One that will
not disrupt the long-established water development and economic
activities in the area. The 1986 Settlement Agreement was
created and signed just for that reason--to resolve everybody's
rights in light of the tribal claims. It is thus critically
important to include non-Indian water users. ALP Lite
accomplishes this goal.
Third, it is less costly and poses less environmental
impacts than the original project. ALP Lite reduces the cost by
$400 million. Since it is a smaller project, it avoids many of
the environmental impacts that were of concern to the United
States Environmental Protection Agency and the U.S. Fish and
Wildlife Service.
Fourth, it avoids a complete renegotiation of that 1986
Settlement Agreement. As I have said, the Settlement Agreement
was the result of hard-fought compromises with the tribes and
other water rights holders. Renegotiating this agreement would
take many years and at enormous expense to the taxpayers.
Since the signing of the agreement in 1986, funds have been
set aside and expended to implement its provisions with the
sole exception of the construction of the Animas-La Plata
Project. The ALP Lite alternative will complete the last
commitment made in the Settlement Agreement.
Fifth, it avoids further delay. We've been at this for
decades. We have negotiated, compromised and studied this
project extensively. It's time to get off the dime and get on
with satisfying our obligations to the tribe. ALP Lite will get
us there.
Now, H.R. 3478 adheres to these principles. As a result,
passage of this bill will accomplish our goals. I urge you to
support it.
Let me say the Interior Department can, in my view, play a
very helpful role in this controversy. They were represented in
our discussions concerning the Animas-La Plata Lite
alternative. They could help us by taking the two alternatives
developed in this negotiation process; plug them into the
appropriate environmental processes; select Animas-La Plata
Lite as the preferred alternative; and quickly come out with a
decision. In my view, either Interior should work with the
product that we have developed and come to a decision; or
Congress should direct Interior on how to resolve this issue by
passing H.R. 3478.
It's the only way we're going to get this resolved, short
of going to court for years to come. Now H.R. 3478 and Senate
bill 1771--the companion Senate bill--can serve as the
framework for further discussions to address Interior's
concern. But one thing is certain, we cannot start from square
one again. Too much time has been lost and we've already
discussed plenty of alternatives. These bills represent the
product of difficult compromises and should not be rejected.
In closing, I have noted that Secretary Babbitt has asked
his counsel, David Hayes, to meet with the tribes and their
neighbors to see if an agreement can be reached on amendments
to this legislation. I would ask Mr. Hayes to come to Colorado,
meet with me and the other signators of the Settlement
Agreement, but this must be more than just more talk or more
process. Mr. Hayes should come and must come with a portfolio
to speak for the administration. We need some decisions to be
made here. I would hope he would come with a clear proposal,
and I would ask him to come with a clear proposal for
amendments to the legislation that will satisfy the
administration's concern.
Finally, I think we must meet in August, if this Congress
should pass this legislation--with or without the
administration's support--to finally honor commitments under
the Settlement Agreement. Thank you, Mr. Chairman.
[The prepared statement of Governor Romer may be found at
end of hearing.]
Mr. Doolittle. Thank you.
Our next witness is Mr. Thomas Turney. Mr. Turney is the
State engineer for the State of New Mexico. Mr. Turney.
STATEMENT OF THOMAS C. TURNEY, STATE ENGINEER, STATE OF NEW
MEXICO
Mr. Turney. Mr. Chairman, members of the Committee, I thank
you for letting me testify this afternoon. I also brought a
statement with me from the Governor of the State of Mexico. He
sends his apologies but he cannot be here this afternoon. We
would like to have his statement entered into the record.
[The prepared statement of Mr. Johnson may be found at end
of hearing.]
Mr. Turney. Today, I'd like to speak on behalf of H.R. 3478
which means changes to the authorized ALP project. At the same
time, would like to speak against H.R. 745 which speaks of
deauthorization.
The reconciled Animas-La Plata Project would provide two
basic components of New Mexico's plans for development of its
water resources in northwestern New Mexico. The reconciled
project generally settles the claims of two Colorado Ute Indian
Tribes to waters of the Animas-La Plata Rivers. This is an
important aspect of the project because it provides certainty
to the New Mexico water users on these two rivers so that, in
fact, they will have water available to them under their State
water rights.
Secondly, the reconciled project will provide a more
dependable water supply for both Indian and non-Indian
communities in northwest New Mexico. Northwest New Mexico is
growing and it's very important to provide an adequate water
supply for this area's future. The need for a dependable water
supply for this area has long been recognized. Although the
majority of communities in the State of New Mexico get their
water from wells, communities in this par-
ticular area must get their water from river waters. Ground
water in the area generally contains very high level of
contaminants and is unusable. The Animas River has historically
run dry or very near.
Raw water storage is necessary to supply water to
communities when the river runs low. The Animas-La Plata
Project is designed to provide a water supply during low-flow
conditions for both Indians and non-Indians in New Mexico--a
goal which the State of New Mexico very much supports.
H.R. 3478 is a compromise bill negotiated by Indians and
non-Indians. It addresses many concerns previously expressed by
New Mexico, including final settlement of Colorado Ute Indian
Water Rights claims, a much needed municipal and industrial
water supply for the area; a reduction in project costs; a
habitat for endangered species; protection of senior water
rights; and does not lessen water qualities. Negotiations are
ongoing to further refine this bill to include language to
provide for a pipeline to carry project water from Farmington
to the Navajo community of Shiprock.
The State assigned approximately 50,000 acre feet of water
to the Department of Interior for development at this project
about 40 years ago. Subsequently, an interstate compact was
developed to establish equal priority of project water rights
between Colorado and New Mexico. Congress approved the Colorado
Ute Indian Water Rights Settlement in the late 1980's. This Act
provides for final settlement of the Colorado Ute Indian Water
Rights claims on the Animas-La Plata Rivers. The construction
of the ALP Project is the cornerstone of this settlement.
It is neither timely nor appropriate to consider
deauthorization. It is true that the project is controversial.
However, H.R. 3478 has been introduced as a compromise by
Indians and non-Indians in northwest New Mexico and southwest
Colorado. Deauthorization will cause several major problems for
New Mexico. If the Colorado Ute Indian claims are not settled
and the Ute Indians return to court, New Mexico will be forced
to intervene. To protect New Mexico water users on the Animas-
La Plata Rivers, New Mexico will be forced to challenge every
PIA and other claims that the Ute Indians might advance.
Based on similar cases in New Mexico where one ongoing
Indian water right cases has been argued for a little over 32
years. We would anticipate that this case will last for
decades. There will be no doubt that our intervention is going
to cause strained relations between New Mexico and the Colorado
Ute Tribes in the State of Colorado. Due to the lack of
certainty of future water availability, such a prolonged action
could significantly impair land transfers and existence of
future development in New Mexico. Deauthorization will
terminate the Animas-La Plata interstate compact exposing New
Mexico users to suffer shortages caused by junior appropriators
in Colorado.
Deauthorization will not stop the need of New Mexico
communities for a raw water storage. To meet summertime
demands, storage will continue to be needed. Although Navajo
Reservoir is available on the nearby San Juan River flow
recommendations recently proposed for the recovery of an
endangered species will probably preclude the use of this
storage for New Mexico communities. Al-
ternate storage sites are generally not available, potentially
necessitating the development of multiple reservoirs. The cost
of these reservoirs may be many times the amount that money New
Mexicans will pay under the reconciled project.
Deauthorization is going to hurt our ongoing negotiations
with the Navajo nations. In 1996, the State of New Mexico
entered into an agreement with 22 Indian pueblos and tribes.
These disagreements set forth principles of government to
government negotiation proceeding before litigation. This
agreement has led to negotiations between the Navajo nation and
New Mexico to determine if a negotiated settlement of Navajo
water claims is feasible. The reconciled project will include a
proposal to construct a transmission line from Farmington to
provide treated project water to the Navajo community of
Shiprock.
For public health and safety reasons, this pipeline is
extremely important to the Shiprock area whose population has
swelled in recent years. Final settlement of the Navajo claims
in the San Juan basin is extremely important, not only to
northwestern New Mexico but it will provide certain communities
along the river to receive their water from the San Juan trans-
mountain diversion. This deauthorization could potentially
significantly impact major population centers in New Mexico.
New Mexico strongly opposes deauthorization of the Animas-
La Plata Federal Reclamation Project. Instead, New Mexico
supports a reconciled project that provides wet water to New
Mexico and provides for final settlement of Ute Indian claims.
Thank you for the opportunity to testify.
[The prepared statement of Mr. Turney may be found at end
of hearing.]
Mr. Doolittle. Thank you.
Our next witness is Mr. Eluid Martinez, the Commissioner of
the Bureau of Reclamation. Mr. Martinez.
STATEMENT OF ELUID MARTINEZ, COMMISSIONER, BUREAU OF
RECLAMATION, DEPARTMENT OF THE INTERIOR
Mr. Martinez. Mr. Chairman, members of the Subcommittee,
thank you for the invitation to present the administration's
view on H.R. 745, an Act to deauthorize the Animas-La Plata
Project and H.R. 3748, the Colorado Ute Settlement Act of 1998.
My written statement has been submitted for the record, and if
acceptable I'll summarize that statement.
The administration fully supports providing wet water to
the Colorado Ute Indian Tribes as part of the final settlement
to their water rights. In providing the water to the tribes, we
need to also consider how the possible solutions would affect
the municipal and industrial water supplies of the regional
communities, while protecting the area's natural resources. Mr.
Chairman, the administration does not support the approaches
included in the two measures before the Subcommittee today.
They charge H.R. 745 would deauthorize the Animas-La Plata
Project--a participating project under the Colorado River
Storage Project Act of 1956. If enacted, this bill would direct
the Secretary of Interior to promptly seek to enter into
negotiations with the Ute Indian Tribes to satisfy, in a manner
consistent with all Federal laws, the water rights interests of
those tribes that were intended to be satisfied with water
supplied from the Animas-La Plata Project.
It should be noted that the H.R. 745 does not provide for
an alternative to the original Animas-La Plata Project. While
the administration agrees that there is limited support for the
original Animas-La Plata Project, we are not prepared to
recommend complete deauthorization. Instead, the administration
believes it is important to focus on the priority of delivering
wet water to the tribes and to address the deauthorization
issue with the tribes and other affected parties.
Mr. Chairman, with respect to H.R. 3748, this bill would
amend the Colorado Ute Indian Water Rights Settlement Act of
1988. The administration does not support the approach included
in this legislation for the reasons detailed in my written
statement. Mr. Chairman, the question is where do we go from
here? On July 20, 1998, Secretary Babbitt wrote to the tribes
to assure them where the administration stands with respect to
their water rights. That letter, in part states ``We, the
administration fully support providing wet water--water
beneficially usable to the tribes to the Colorado Ute Indian
Tribes as part of the final settlement of your claims. We need
to consider how the possible solutions would affect the
municipal-industrial water supplies of the regions' communities
and protect the area's natural resources.''
Mr. Chairman, the administration fully understands and
respects the significance of the tribe's efforts and those of
the Governor and the Lieutenant Governor, and other parties in
the Romer-Schoettler process that helped to focus the issues
surrounding this project. The administration is prepared to
enter into a good faith dialogue with the tribes to identify
the best mutually acceptable means to enable the tribes to
obtain wet water for their present and future use. I place
emphasis on the fact that at the same time, we need to consider
how possible solutions would affect the municipal-industrial
water supplies of the region and the natural environment of the
area.
However, in identifying an acceptable means, the
administration believes that full consideration should be given
to all alternatives, including appropriately sized storage that
would satisfy the tribe's water rights. In undertaking that
consideration, however, the full impact disclosure alternative
analysis and the public involvement aspects of the National
Environmental Policy Act should not be circumvented, nor should
NEPA procedural requirements be segmented.
Mr. Chairman, Mr. David Hayes, counselor to the Secretary
of Interior, and who has been named by the administration as
the leader to engage in a dialogue with the tribes, has
forwarded a letter yesterday to the tribal chairperson seeking
initiation of discussions. He has also extended letters of
invitation to the other 1988 water settlement parties because
of his expectation that they will need to participate in
discussions pertaining to potential revisions of the Settlement
Act.
Mr. Chairman, this concludes my summary of remarks. I would
be pleased to answer any questions you might have. Thank you.
[The prepared statement of Mr. Martinez may be found at end
of hearing.]
Mr. Doolittle. Well, thank you. Commissioner, I recall in a
previous career, you were the State engineer of New Mexico,
were you not?
Mr. Martinez. Yes, Mr. Chairman.
Mr. Doolittle. Well, were you involved in all of this
controversy back with Governor Romer or where do you fit in in
this?
Mr. Martinez. Chairman, I've been involved in New Mexico
water issues and controversy since 1971.
Mr. Doolittle. That's remarkable.
[Laughter.]
Mr. Martinez. I fully understand the implications of this
project.
Mr. Doolittle. Cal, I think you and I need some more of
that wet water they want to get out there in New Mexico and
Colorado.
[Laughter.]
Well, let me ask you, Commissioner, do you have or does the
administration have amendments to Mr. McInnis' bill that would
satisfy the administration's concerns?
Mr. Martinez. Mr. Chairman, my written comments have
specific--statement has specific concerns. The administration
is committed to working quickly to try to work with the tribes
and other folks in this area to bring something to the Congress
that we would find acceptable.
Mr. Doolittle. What role does the counselor in charge of
Indian water rights settlement negotiations--what role do you
think he seeks to play in this project?
Mr. Martinez. The intent is to have Mr. Hayes speak for the
administration on these issues.
Mr. Doolittle. How does this project compare to other water
rights settlement negotiations within the Department of the
Interior?
Mr. Martinez. Other Indian water rights settlements also
contain components for water delivery projects.
Mr. Doolittle. Well, I was pleased to hear you reaffirm the
administration's commitment for storage. Governor, you're to be
commended for your persistent and long-term role in trying to
bring this settlement all about. It's a rather remarkable
settlement it seems to me. It's unfortunate that it's lasted so
long. Apparently, it's up to us to complete the final piece of
this extensive and complex agreement.
Governor Romer. Let me reply. I listened to Congressman
DeFazio's comments earlier this morning. Look, we have a
problem here. We need a solution to the problem. The problem is
that we have an obligation to deliver water to the Indians. I
think that this can be solved. We need to solve it. We ought to
solve it right now.
Secondly, I think an essential ingredient in that solution
is for the administration to come to the table and say this is
what we propose. That has not been the case yet and I think
that Commissioner Martinez and the Secretary of Interior have
indicated that Mr. Hayes is coming with authority to speak for
the administration. If that's the case, that's a very helpful
step.
Third, we just need to get at the table. I think the
elements of the solution are we need to deliver on the
obligation to the tribe. We need to take care of the non-Indian
water user. We need to do it in a responsible, environmental
way. We need to do it without further delay. I think that--I
would hope that the momentum that I sense from the
administration can carry us to a solution very quickly.
Mr. Doolittle. Well, that sounded encouraging. So let us
hope that we see some positive developments here. Let me just
ask a technical question about this--maybe I overlooked in the
reading I did. But you have this reservoir that you're going to
pump water into it. What's going to be the vertical lift from
the river up to the reservoir?
Mr. Martinez. I understand somewhere around 500 hundred
feet.
Mr. Doolittle. About 100 feet?
Mr. Martinez. Five hundred.
Mr. Doolittle. Five hundred feet. Well, if we can get our
administration to act quickly, is it you sense, Commissioner,
that this gentleman's going to get really engaged and help
bring this to a conclusion fairly fast?
Mr. Martinez. It would be my hope that we move sooner than
later, and surely within the next month to try and bring some
focus to this issue.
Mr. Doolittle. Well, that would be excellent. This proposal
has been criticized for lack of environmental compliance or
documentation. Is there something, in you opinion, further that
needs to be done in this regard? Mr. McInnis said that they've
spent $20 million studying this thing.
Mr. Martinez. Mr. Chairman, I'll reserve judgment on that.
But one thing that I would say is that we sure don't want to
get hung up by the courts. Whatever proposal I think the
administration moves forward with, we ought to make sure it
complies and provides a deep analysis and full due process so
we don't get hung up in the court system.
Mr. Doolittle. Do you have any specific suggestions about
how the language in the bill could be modified in the
environmental area to improve it?
Mr. Martinez. I think that, with respect to the
legislation, the concern we have is the sufficiency language.
Mr. Doolittle. Well, is there any other substitute that you
would suggest? It sounds like a great deal of time and money
has been studying it. I would suppose the proponents don't want
to have another open-ended study on it. Is there some
compromise language that could be arrived at here?
Mr. Martinez. With respect to the H.R. 3478?
Mr. Doolittle. Yes.
Mr. Martinez. To the extent that the only issue was, the
only concern that the administration has with H.R. 3478 would
be NEPA analysis, I think we could come together with some
language. However, that's not the only issue that the
administration has raised with concerns to H.R. 3478. We have
issues having to do with deauthorization, appropriate
deauthorization of the project, cost sharing, and other issues.
Mr. Doolittle. So you're also seeking, then, specific
deauthorization of certain components of the project.
Mr. Martinez. What we're saying is that some of those might
be appropriate.
Mr. Doolittle. Well, I'll recognize Mr. DeFazio for his
questions.
Mr. DeFazio. I thank the chairman. To any of the
participants, is Animas-La Plata Lite identical to Phase 1(a)
of the Animas-La Plata?
Mr. Martinez. As I recall, phase 1(a) was primarily an M&I
delivery.
Mr. DeFazio. Yes.
Mr. Martinez. Phase 1(a) also included a reservoir sized to
enable water to be developed and used for irrigation purposes.
Mr. DeFazio. So the environmental analyses that were done,
and the cost analyses that were done for phase 1(a) are not
applicable to Animas-La Plata Lite? I mean, it's not the same
project?
Mr. Martinez. To the extent that water is taken from the
river at different times of the year and is used for M&I
purposes and return flow's assumption may differ from what was
considered in 19--the supplemental--environmentally backed
statement, it's a different project. It would require a
different analysis.
Mr. DeFazio. OK. So we don't have an economic analysis for
the project proposed to deauthorize in the bill before us?
Mr. Martinez. No. The Bureau of Reclamation has not done an
analysis.
Mr. DeFazio. OK. So you lack both an environmental and an
economic cost analysis. I guess--turning then to Governor Romer
for a moment. I congratulate you in your efforts in getting
involved in this very difficult decision. As I understand the
Romer-Schoettler process, there was some agreement, was there
not, that any alternative should comply with all Federal laws?
Governor Romer. I think that's correct, but I don't
remember the exact language of that agreement. But let me tell
you the concept that was in our minds. There is an existing
environmental process. We felt that, whatever we came up, if we
could get the administration's approval, we could have that
ongoing environmental process; consider that as the preferred
alternative that where you could continue to do the work that
needs to be done, but you don't need to go back to square one.
Congressman, I have a very strong environmental record. I
do not want to have the environment damaged by this project.
But this is a contentious issue. Sometimes environmental
processes and litigation involved in them are used, in my
judgment, not for the purpose of saving environment but for the
purpose of killing a project. I simply would like to have this
decision made. Let me suggest to you, if we can get an
agreement on what this is, and if the administration will come
to the table and say, you know, this is where we are--I think
that we can take that agreement and satisfy all of the existing
environmental law by including it in the existing process and
just enlarging whatever investigation needs to be made based
upon changes.
Mr. DeFazio. Well, I'm puzzled as to the consistency of the
statement. Then do you support the sufficiency language in Mr.
McInnis' bill which says, this is deemed sufficient to meet all
environmental laws, no matter what analysis has gone forward
previously, even though it's different than and was applied as
first stage? Do you support that then? I mean, having that
language in there?
Governor Romer. I support this----
Mr. DeFazio. Or do you support doing the appropriate
process?
Governor Romer. I support this bill with that language in
it. Now, let me explain, Congressman.
Mr. DeFazio. All right.
Governor Romer. I was very troubled by this. Let me tell
you, I did that because there was no alternative. I was dealing
with somebody that wouldn't give me an answer. I'm the Governor
of Colorado. I've got an obligation to deliver on that
agreement to the tribe. When I can't get an answer, I'll use
whatever weapon I got to use. The weapon I chose to use is I
agreed to sufficiency language in this bill.
Mr. DeFazio. OK. So----
Governor Romer. It's not the best way to go.
Mr. DeFazio. No, in fact----
Governor Romer. But let me tell you that it's better----
Mr. DeFazio. Reclaiming my time, Governor, if I could--I
don't have time for filibuster, here. So, you support basically
finding a project which hasn't been evaluated by the Federal
Government for its environmental problems or benefits. You just
support deeming it to have met that myriad of Federal laws,
without the public having any right to further appeal
litigation from whatever perspective, and, you know, you find
that to be consistent.
Governor Romer. No. That's not a fair characterization of
my views.
Mr. DeFazio. Well, what is the result of----
Governor Romer. You're making an unfair characterization--
--
Mr. DeFazio. I'm very familiar, Governor, if I could, I'm
very familiar with sufficiency language. I one time in my
congressional career supported it and it was a bad thing to do.
I learned that. It was nowhere near as big a deal as this
project in terms of its environmental impacts--the one time I
supported it. So it's really hard to say I'm a 100 percent
environmentalist. I'm a strong environmentalist. In this case,
I don't know what the impacts are. The government, the Federal
Government, doesn't know what the impacts are, but I know that
this would satisfy those Federal laws and environmental
requirements. It's just not consistent.
I see my time has expired. Perhaps on the next round, we
can get back to that.
Governor Romer. Can I reply to your statement?
Mr. DeFazio. It's up to the chairman. My time has expired.
Mr. Doolittle. Please, go ahead.
Governor Romer. OK. I want to reply, Congressman, because
you characterized my position, I thought, in an inaccurate and
unfair way. Let me describe why it's inaccurate and unfair.
I am for this solution. I think that there has been many
years of work in terms of environmental impact.
Mr. DeFazio. But not on this alternative, Governor.
Governor Romer. Congressman, let me finish.
Mr. DeFazio. We've done billions of years of environmental
work in this country and it's a very frustrating process on
billions of projects. But every time you come up with a new
idea and a new project, you got to do another one.
Governor Romer. Got it.
Mr. DeFazio. Or you have to modify the ones that went
previously. That you're not supporting that here. You're
saying----
Governor Romer. Excuse me.
Mr. DeFazio. This would fit into the work that's been done
before. The work that was done before was not done on this
alternative.
Governor Romer. Yes. Let me tell you, Mr. Congressman, the
alternative that we're talking about is a storage project. It's
pumping water out of the river; it's the management of that
project, and it has a limited quantity. Now, we already have
done a very great amount of work. If there are some
modifications that need to be made in this proposal in order to
make it acceptable to the administration, first, we need to
know what those modifications are.
Second, once we know what they are, then we can see whether
or not we can use the existing process or whether we have to
start another one.
Third, when I supported this bill, I did not have an
alternative from the administration even to discuss. So, sir, I
want to tell you I'm here as a strong environmentalist. But I'm
also here saying we've screwed around 12 years without solving
this problem. As Governor of Colorado, I've got 6 months to go.
I don't want to leave this problem unsolved. I think you and I,
and everybody involved in the National Government and in the
State of Colorado and New Mexico ought to solve this problem.
We owe it to the Indians. We owe it to those communities.
Mr. DeFazio. I think we should resolve the problem, too,
Governor, but deeming it to have the environmental laws is,
according to this administration, is veto bait--on any and all
bills and projects, no matter how material. So that's a fatal
flaw, among other flaws, in this legislation.
Mr. Doolittle. Well, Commissioner, in other conversations
we've had, you've been very gracious to offer to cooperate and
try, and maybe with Mr. Hayes, we'll be able to move in this
direction, but actually get the parties down and get sort of an
expedited plan for moving this off dead center. I'm certain the
sponsors of the bill aren't absolutely locked in concrete in
every last detail of it. I'm sure, if they saw the opportunity
to move ahead, there'd be some willingness to cooperate. But
there's been so much work done, just as you yourself know since
you were one of the key parties over the years; it seems like
we need to have it resolved. We need to have some sort of
environmental agreement that can come to a conclusion in a
reasonable period of time and not drag out kind of open-ended.
I wondered if I might ask Mr. Turney a question? You talked
about a pipeline, I guess, for the Navajo Nation. Could you
tell us about that? Maybe the estimated cost of that, the
length, and the construction time, et cetera?
Mr. Turney. Mr. Chairman, the pipeline would be run from
Farmington to Shiprock. Shiprock is about 30 to 35 miles west
of Farmington. The purpose of the pipeline would be to take
treated water and move it from Farmington to Shiprock. For
many, many years the Navajo community of Shiprock has tried to
take water directly from the river. But the water is simply too
muddy by the time it gets down to Shiprock. There's some major
arroyos that dump silt into the river. For this reason, surface
water treatment is just extremely difficult.
The project to be built would, I'm sure, require further
NEPA evaluation. I believe some preliminary numbers have been
floated around about a 24-inch pipeline. There is an existing
16-inch pipeline today--so this new pipeline to be augmenting
an existing pipeline. Probably the project would be in the
neighborhood of, let's say, $25 to $30 million.
Mr. Doolittle. Would that be built along the same right-of-
way as the existing pipeline?
Mr. Turney. I presume so. As I recall the last pipeline, it
took about one and one-half years to design it, and about a
year to construct it. Because we're dealing with a slightly
larger project, sized pipeline, it may take a little longer
than that.
Mr. Doolittle. All of you have worked very hard to retool
this proposal which you call Animas-La Plata Lite--sounds like
a term your opposition may have coined, but, anyway, you use it
yourselves. Well, has it lessened the opposition in any way?
Did you get some of the opponents to go along with this that
wouldn't go along with the full Animas-La Plata? Or are we
still facing the same types of opposition?
Governor Romer. I will speak to that. In the course of the
extensive conversation we had when the so-called Romer-
Schoettler process--even though we did not come to an
agreement, I thought that we found the kind of differences we
had were narrowed. We all began to sense that there's a reality
here, and that is that we've got to solve this problem. I think
there was a recognition that you just can't solve this problem
by putting money on the table and say, ``Go buy water rights.''
This isn't a solution that's acceptable to the tribe.
Therefore, I think there's a reality that all of us on both
sides come to, saying the time is now, let's get it done, and
let's find the proper way to do it.
Mr. Martinez. Mr. Chairman?
Mr. Doolittle. Yes, Commissioner.
Mr. Martinez. If I might add to that, I think I at one time
said that, based on my 30 years in this business, I find that
if we try to deal with water issues based on consensus, we'll
never get anything done. You can only go so far. I've yet to
find any particular project out West where you're going to have
a 100 percent concurrence. I think where we're at is the
administration has extended an invitation to the tribes to
enter into a dialogue to focus the issues and bring this to
resolution, bring something to Congress that you can make a
conscious decision on. That's why I committed to assist Mr.
Hayes and the administration in this.
Mr. Doolittle. Well, that sounds very encouraging.
I'll recognize Mr. DeFazio for his questions.
Mr. DeFazio. Well, following up on that with Mr. Martinez,
then what sort of timeline would you have in mind for that?
Mr. Martinez. I'm going to push it as quickly as possible.
I would hope that we would have something within the timeframe
that has been expressed today--30 to 60 days. But I can't speak
for the rest of the administration, because, as you know, on an
issue like that we'd have to get administrative clearance. But
I intend to move this thing quickly through the Bureau of
Reclamation.
Mr. DeFazio. OK. So you believe 30 to 60 days of
discussions with the principal tribes could reach--you could
reach a point of resolution?
Mr. Martinez. I would hope so.
Mr. DeFazio. OK. In those discussions, I would assume you
deal with variances from the existing environmental laws. Then
if you reach a conclusion with them, I assume there would be a
substantial proposal.
Mr. Martinez. Well, I don't think you can--you can get many
answers from environmental laws. It would appear to me that
you're going to have to comply with them. But that being said,
there's been $21 million worth of environmental studies on this
project that has a--you have a resource on which you can draw
upon.
Mr. DeFazio. Have any of those ever been challenged
legally? Let me reverse the question. Has any of the studies
every withstood a legal challenge?
Mr. Martinez. My history, particularly history with people
on this issue, is it's impossible for me to ask for that. But I
would assume that it's been challenged and I want recall that
the--I'd like to correct the record--but I want to recall the
last order entered by the judge on an issue like this had to do
deal with cultural resources study and not the need for
sufficiency.
Mr. DeFazio. Yes. Well, I understand that previous
environmental assessments have been found to be inadequate by
the courts. I don't know which all aspects of that.
Mr. Martinez. But I'll provide an answer for the record.
[The information referred to may be found at end of
hearing.]
Mr. DeFazio. There's another concern here which goes beyond
the environment, which goes to local responsibility. I'm
curious as to how the administration would look upon the
reduction and the capping of local cost-sharing in the
alternative. My understanding is, basically, according to the
Bureau of Reclamations, we've seen phase 1 of Animas-La Plata.
About 44 percent of Animas-La Plata Lite capped at 10 percent,
that means a much larger additional burden in the initial
project phase or, as we're told now, in the final--and initial
project phase--since that's sort of the assumption here.
Although I have to get also to the question of, if we're
going to--if we accepted this, would Arthur and others,
Governor Romer, accept that we would deauthorize parts of the
project that weren't consistent and went beyond? But to you, is
that a problem with the administration?
Mr. Martinez. Well, let me try and sort of put this in
perspective. The original project estimated about $400--$754
million to construct what represented about 55 percent non-
Federal cost-share. As I understand it, the M&I non-Federal
cost-share was to be paid at 100 percent reimbursement with
interest. Then you had the large component of irrigated
agricultural costs. Then, of course, you have the Indian costs
associated with a project, which were ir-
rigation costs which were deferred under the Levitt Act--the
M&I costs which would be payable by the tribe at the time they
put their water to use.
Under the new proposal, the proposal that is set forth in
H.R. 3478, we would have a project of about $268 million, of
which the Federal costs associated with the tribal expenses
would be deferred--would be nonreimbursable. As I understand,
the Federal--non-Federal costs would be capped at $29 million.
So percentage-wise the non-Federal costs are greater under this
project. But again, it would be the administration's position
that, as we move forward with a project that would involve non-
Indian M&I uses or other uses, that those costs be payable
pursuant to reclamation law. For M&I purposes, it would be 100
percent with interest on that portion that could be allocated
to the M&I project.
Mr. DeFazio. OK. So then does 10 percent do that or not?
Mr. Martinez. We'd have to do the analysis, but my first
indication said it's not sufficient. It doesn't come up to it.
Mr. DeFazio. OK, Mr. Chairman.
Mr. Doolittle. We'd like to thank the members of this
panel. I'm sure we'll have some other questions and we will
tender those in writing and hold the record open for your
responses. We appreciate very much the time you've taken to get
here and the expertise you've brought with you.
[The information referred to may be found at end of
hearing.]
Mr. Doolittle. We'll excuse the members of panel one and
begin with the second panel and invite the members of the
second panel to come forward.
Let me ask you, ladies and gentlemen, to please rise and
raise you right hands.
[Witnesses sworn.]
Mr. Doolittle. Let the record reflect that each answered in
the affirmative.
We're very happy to have you here. We'll begin our
testimony with Mr. Clement Frost, chairman of the Southern Ute
Indian Tribe. Mr. Frost.
STATEMENT OF CLEMENT FROST, CHAIRMAN, SOUTHERN UTE INDIAN
TRIBE; ACCOMPANIED BY LEONARD C. BURCH, PAST PRESIDENT AND
COUNCIL MEMBER
Mr. Frost. Thank you, Mr. Chairman and Committee members.
First of all, in our traditional way, to you people we
would like to pay tribute and honor to the two slain officers,
the warriors of the Capitol Police Office. We hope that our
Creator will grant the families peace and strength to deal with
the loss of their loved ones.
My name is Clement Frost. I'm the chairman of the Southern
Ute Indian Tribe. I appreciate the time given to me and my
tribal people. I brought with me Mr. Leonard C. Burch, past
chairman and now council member of the tribe. I'm here today to
testify in support of H.R. 3478, the Colorado Ute Settlement
Act Amendment from 1998.
On behalf of my people, the Southern Ute Indian Tribe, and
our tribal council, I ask that Congress fulfill the promises
that the United States has made to the Southern Ute Indian
Tribe to pro-
vide water that the tribe needs now and in the future--wet
water that guarantees the survival of our people and our land.
I'm also here today to oppose H.R. 745, the bill
deauthorize the Animas-La Plata Project. In my thinking, H.R.
745 is a direct slap in the face and dishonor to my tribal
people and my tribal leadership who have negotiated in good
faith and have also compromised a compromise.
H.R. 745 breaks the agreement that the United States made
with the two Colorado Ute Tribes that was signed into law by
President Reagan in 1988. It also violates the United States
trust responsibility to the two Colorado Ute Tribes. Those who
support that legislation have very short memories. I can
promise that if Congress were to disauthorize the ALP and
demand that the tribe return to the negotiating table, my tribe
would return to court. That's a promise I can fulfill. We would
sue the United States for its breach of the 1986 agreement and
we would seek to establish our rights through litigation.
Why would any tribe negotiate with the United States if the
Congress is going to back out of any authorized agreement just
because it doesn't like it anymore? The Southern Ute Tribe has
been more than willing to work to address the problem that have
delayed the construction of the Animas-La Plata. Because the
water is important to my people, we will not walk away from the
promises that were made in the 1988 Settlement Act. We believe
the right way to address the issue is facing the ALP is H.R.
3748. The right way is not pretend that the 1988 Settlement Act
was never passed.
When the Ute band find a treaty established in a Ute
reservation in 1868, the United States promised the Ute people
that the reservation would be our permanent homeland that would
support our people forever. The key to carrying out that
promise is wet water--the fact that the tribal leadership has
always known, but what the United States has sometimes
forgotten.
Former Chairman Leonard C. Burch and former Chairman Chris
A. Baker worked hard to have the Animas-La Plata Project built.
They knew that the project is the best way for a tribe to get
water needs for the future. The future of my people depends on
making sure that the tribe has a reliable water supply that can
be used for the continued future development of our homeland
and our future generations.
The parties to the original settlement are here today to
support modification to the 1988 Settlement Act. The foundation
for the settlement is still the Animas-La Plata Project, but
only a small portion of the project is required to complete the
settlement. As a result of those modifications, the tribe knows
that we will not receive all the benefits that we were promised
in 1988. But the tribe will get a reliable supply of stored wet
water that it can control for its own use. That's what we've
always wanted. We know that construction of a stored reservoir
is only the first step in putting water to use for the benefit
of our people. We are confident that, with that supply, we can
move forward into the next century.
I want to address the position of the administration. We
have tried our best to work with the administration to carry
out the 1988 settlement. So far, we have met with little
success. Throughout the Romer-Schoettler process, the Federal
agencies never ac-
knowledged the trust responsibility to our tribes or try to
help find solutions that would remain true to the spirit of the
1988 Settlement Act. Now the administration wants to talk to
us. We received a letter just 2 days ago saying its opposition
to our proposal was misunderstood and that we need to talk of
yet another alternative. We don't agree. We understand the need
to talk, but we have many questions. Let the administration
understand those representatives must talk with all parties.
In closing, I want to make three points. First, despite the
changes of the settlement that had been proposed, we know that
these compromises will not satisfy all our opponents. We hope
that you understand the benefits of this settlement to the
Southern Ute Tribe and recognize the importance of providing
wet water to the Ute Tribes without taking water away from the
non-Indian neighbors.
Second, I want to recognize the honor and integrity of our
non-Indian neighbors who are the tribes' partners in the
project. We appreciate their sacrifices to make this settlement
work.
Finally, I want to ask you to remember the promises that
were made in 1868 to the Ute Tribe and confirmed in 1988.
Finally, to ask at the end, who among you will have the courage
to fill the cup of empty promises and pass H.R. 3478? Thank
you.
[The prepared statement of Mr. Frost may be found at end of
hearing.]
Mr. Doolittle. Thank you.
Our next witness will be Mrs. Judy Knight-Frank, chairwoman
of the Ute Mountain Ute Indian Tribe. Mrs. Frank.
STATEMENT OF JUDY KNIGHT-FRANK, CHAIRMAN, THE UTE MOUNTAIN UTE
TRIBE
Ms. Knight-Frank. Mr. Chairman, members of the Committee,
my name is Judy Knight-Frank. I am the chairman of the Ute
Mountain Ute Tribe which is located in Colorado, New Mexico,
and Utah. With me today I have two of our members of the
council--Rudy Hammond, the vice chairman, and Eddie Dutchie,
Jr., who is the treasurer of the tribe. He is also the
representative from the White Mesa Ute community.
I want to thank you for inviting me to testify in support
of H.R. 3478 on behalf of my tribe. I especially want to thank
Congressmen Scott McInnis and Bill Redmond for introducing this
important bill which we hope will finally settle our water
rights. This bill is essential to the tribe's future, so they
may continue the economic self-sufficiency and tribal self-
determination which we have worked so hard to achieve.
I would ask that my written statement be included as part
of the record. I also have a letter from some tribal elders
which I ask also be included in the record.
[The information referred to may be found at end of
hearing.]
Ms. Knight-Frank. As the Committee is aware, H.R. 3478
seeks to amend the Colorado Ute Indian Water Rights Settlement
Act of 1988. The Animas-La Plata Project was a key part of the
1988 Act. After a decade of delays in construction on ALP, the
tribes went to the Secretary in August 1996 to ask for help.
Secretary Babbitt told us he agreed that a new water storage
facility was the only way to settle the tribe's water rights
without tearing apart the social and economic fabric of the
area. He told us to ask Governor Romer to assist us with
bringing all the parties together to come up with a consensus
project.
We did this, and the process resulted in two alternatives--
a reduced ALP and a proposal which would have the tribes buying
land and water in the area. The tribes have formally rejected
any money for land deal because it is environmentally and
physically unworkable.
H.R. 3478 represents the tribe's efforts to answer
environmental and fiscal questions about ALP. Our proposal
reduces Federal costs of the project by two-thirds. The tribes
are getting less water than promised before but are asking to
pay less for it. All of the irrigation facilities have been
removed from the project. As you will hear today, this answers
New Mexico's concerns about water quality.
Finally, H.R. 3478 also provides the means to assure the
successful recovery of endangered fish in the San Juan Basin.
That program simply cannot continue without the support of the
tribes and the construction of the three facilities identified
in this bill.
A nearly identical bill, S. 1771, was introduced in the
Senate Indian Affairs Committee in March. I presented testimony
at a hearing on that bill on June 24.
As we were told to do, the tribe submitted its testimony on
time, so the committee could prepare for the hearing. We had
been told by administration officials that any opposition to S.
1771 would be weak. As with many other things told to American
Indians, this was far from the truth. The administration,
through the same designated representative present today,
Commissioner Martinez, gave us its testimony only 2 hours
before that hearing. They strongly opposed S. 1771, and only a
few words have changed in their testimony today.
Secretary Babbitt wrote to me and told me that the
administration is prepared to enter into a good faith dialogue
with the tribe to solve our water rights. We have had over 10
years of the administration's good faith--and let me tell you,
their good faith doesn't hold water. The entire time we
negotiated with project opponents, the administration has sat
on the sidelines. They knew what we were doing every step of
the way. They knew what this bill looked like months before it
was even introduced. Yet they never told us what they really
thought until just before that--last month's hearing. Nothing
has changed here today.
We find it completely unfair for the administration to
refuse to support a project which does not contain delivery
facilities when it was exactly that project feature which
previously caused them so many concerns. It is also unfair for
the administration to state that environmental laws will be
violated by the project set out in this bill. We all know this
is not the case, as these three features of the original
project were studied extensively--now, in fact, the only
features authorized by the U.S. Fish and Wildlife Service. The
bill must contain a statement that 15-plus years of studies are
sufficient or the United States together with the tribes may be
in court for another 10 years.
Finally, the Commissioner's written statement explains that
David Hayes, counselor to the Secretary, has contacted the
tribes. Well, Mr. Hayes allegedly faxed us a letter last night.
This is not good enough. If Mr. Hayes is now the point person
on our water settlement and ALP; I ask the administration and
this Committee, where is David Hayes today? As far as the tribe
engaging in a dialogue with Mr. Hayes, we will only consider
doing so when the administration agrees. We are not starting
over. We must focus on this bill. Based on past experience, we
do not expect that to happen. I ask this honorable Committee to
schedule this bill for markup and move it to the floor. Only
then will the administration see that Congress is serious about
not breaking anymore promises to the Indian tribes.
A promise has been made and a promise has been broken. For
the administration to say there was no guarantee ALP would be
built is simply not genuine. We have complied with every law
and are now asking for even less. It's time for action.
I again thank you for your time and express my sadness at
the loss we all sustained last Friday. Such violence affected
our area recently, taking the life of a Cortez Colorado city
police officer. Thank you.
[The prepared statement of Ms. Knight-Frank may be found at
end of hearing.]
[The information referred to may be found at end of
hearing.]
pages 11 to 16
Mr. Doolittle. Thank you.
Our next witness will be Mr. Sage Douglas Remington of the
Southern Ute Grassroots Organization. Mr. Remington.
STATEMENT OF SAGE DOUGLAS REMINGTON, SOUTHERN UTE GRASSROOTS
ORGANIZATION
Mr. Remington. ``Mike-Ku.'' In the native Ute language, I
thank you for this opportunity to testify on H.R. 3478 and H.R.
745. I am the spokesperson for the Southern Ute Grassroots
Organization, which is a group of Southern Ute Tribal members
who live on the Southern Ute reservation in Colorado, and who
are in support of H.R. 745 and opposed to H.R. 3478.
I've been instructed by the SUGO Elder Council to present a
cultural and spiritual perspective that is in conflict with the
mainstream political and cultural value system. My colleagues,
in opposition to ALP, will speak about the environmental,
taxpayer, and economic concerns that we all share.
The roots of SUGO go back to 1989, when a group of
concerned Southern Ute Tribal members formed the Committee For
Better Tribal Government. The committee's principal concern was
that the best interests of the majority of the Ute people were
not properly being represented in the Animas-La Plata
Reclamation Project. This group of Southern Ute tribal members
gathered the necessary signatures to institute a recall for the
tribal council. With some questionable maneuvering, the
incumbents succeeded in disqualifying one recall vote, thus
resulting in a tie. Under the tribal constitution, the tie
preserved the status quo. Dissatisfied with ALP, abuses of
power and lack of responsiveness by the tribal government did
not fail--did not die after this failed recall attempt. The
organizers of the Committee for Better Government proceeded to
form the Southern Ute Grassroots Organization.
Our Ute people have maintained a connection with the land
and water since they were loosely confederated bands of a
people called the ``Nuche.'' We believe that rocks, trees, the
rivers, and the Earth are alive, and we have lost much of our
land base through the violence, assault and legal manipulations
that have separated the Utes from their land and water. The
Utes share with other traditional tribal peoples three primary
political principles--two, rather. All land, water, and other
natural resources are communally owned by the tribe; private
ownership of land, water, goods beyond those of the immediate
household are unthinkable. And all tribal decisions are by
consensus, in which every tribal member participates.
There has never been a general council meeting of the Ute
people dedicated to discussions about the benefits of the
Animas-La Plata Project. In general council meeting, every
adult member of the tribe is permitted to speak, and discussion
continues until consensus is reached. Questions and concerns
about this project, the original ALP and ALP Lite have gone
unanswered.
In December 1996, SUGO held a meeting with members of the
Southern Ute tribal membership to discuss an alternative to
Animas-La Plata project, and it was at this time that the Ute
Legacy Land and Water Fund concept was developed. Ute tribal
members who had land assignments and allotments were asked,
``What would you like to see result from this project?'' Their
responses were unanimous. Ute tribal members wanted to restore
the integrity of the traditional Ute land base with purchases
of land and water rights on the reservation.
It is with a heavy heart that the Southern Ute Grassroots
Organization must declare its support for H.R. 745, a bill that
would deauthorize the old project. It is not the answer, but it
is a possibility of the beginning of a new solution. This
project was never clearly defined in terms of benefits to the
Southern Ute tribal members. It can never be constructed as
originally planned until the 1986 Settlement Agreement.
H.R. 745 directs the Secretary of Interior to negotiate an
alternative that is consistent with all the Federal laws. An
alternative to ALP should provide the full amount of water
allocated to the tribes in the 1986 Settlement Agreement. ALP's
a parody of the history of the American West. It's become a
saga of lies--lies, half-truths, and myths.
ALP has its own mythology. Ute people do not haul water by
the bucket. Ute people are not drinking dishwater on this very
day with bugs and debris a part of the water.
I'm reminded of a scene that took place here in Washington,
DC, on May 2, 1948. The Federal Government forced a strong-
armed settlement on the Mandan, Hidatsa, Arikara Tribes to make
way for the Garrison Dam on the Fort Berthold Indian
Reservation in North Dakota. This picture illustrates the heavy
heart of George Gillettee, chairman of the Fort Berthold Indian
Tribal Business Council, as he is forced to sign an agreement
for the dam. This is not how Indian water projects should
continue to develop. The Southern Ute tribal membership must
have a voice in the decisionmaking process of any ALP water
project, and it can be done.
``Tuvus-Togoy-Ax.''
[The prepared statement of Mr. Remington may be found at
end of hearing.]
Mr. Doolittle. Thank you.
Our next witness will be Mr. Jim Isgar, member of the
Animas-La Plata Water Conservancy District. Mr. Isgar.
STATEMENT OF JIM ISGAR, MEMBER, THE ANIMAS-LA PLATA WATER
CONSERVANCY DISTRICT
Mr. Isgar. Good afternoon. My name is Jim Isgar. I'm a
board member of the Animas-La Plata Water Conservancy District.
I'm joined today by Charlie and Freda Blasingame, and Elbert
and Nila Hamblin, La Plata River irrigators from New Mexico.
Let me thank the Committee for the opportunity to be here
and for your support in the past. I am a farmer/rancher in La
Plata County, Colorado, in Southwest Colorado, on private land
that lies entirely within the boundaries of the Southern Ute
reservation. My grandfather homesteaded on another part of the
reservation near Ignacio.
Approximately 50 years ago, my father moved to our present
location near the La Plata River. The soil is good, but the
water supply was limited, but there was talk of a water project
that would bring water from the Animas River to the La Plata
Basin. My dad became involved in working on the water project,
and finally, after 20 years in 1968, the Animas-La Plata
Project was authorized by Congress.
My dad was here in Washington for the signing of that bill.
I was 17 at the time. My dad told me that he would be too old
to benefit from the water by the time the project was built,
but that it would be a great thing for me. The project at that
time included water for the Ute tribes. That amount became more
quantified when it became necessary to resolve the Tribal
Reserve Water Rights claims. It hinged on the building of the
Animas-La Plata Project. The La Plata River only had a fraction
of the water necessary for the current non-Indian irrigators.
It was obvious to all involved that the only solution to the
Tribal Settlement Act was storage. When the Water Rights
Settlement Act was signed, we thought we were at last done.
Over the past 10 years, we have actively pursued the
project; however, a variety of issues has slowed us down. We
have been sued by the environmental community, the Fish and
Wildlife Service has determined that the Colorado squawfish
might be impacted by the project, and we've began a 7-year
program to determine what that effect might be. Our involvement
in that process resulted in the Fish and Wildlife Service
allowing us to construct the three facilities that are included
in this bill.
The Service also recognized the depletion of 57,100 acre
feet could occur without adverse effect on the squawfish. In
order to address as many of the environmental concerns as we
could, we agreed to participate in Governor Romer's process.
This is a frustrating process for irrigators because, after
nearly 50 years of working on an irrigation project, it became
obvious that in order to resolve the tribal claims and appease
the environmental community, it would be necessary to give up
the opportunity for a new irrigation water supply. We assumed
it was a sacrifice of that mag-
nitude, that the opponents of the Indian Settlement would be
satisfied and would allow the project to move forward in this
very limited way. This has not been the case.
I have reviewed Commissioner Martinez's testimony. Let me
tell you how it reads to a farmer/rancher from La Plata County.
The administration is proposing to meet with us, but this is
after we've had 2 years of meetings in which they've had
nothing constructive to add. They are proposing more studies,
after, and we've heard $20 million--I think, if you include the
squawfish studies, closer to $40 million--in studies that have
already been done. To me, it appears they are only trying to
delay and avoid fulfilling their responsibilities under the
Indian Settlement agreed to by Congress in 1988.
In conclusion, we would ask for your support for H.R. 3478.
It represents a compromise that the tribes will accept. It
represents a compromise that the non-Indians can reluctantly
accept. Each facility proposed has received environmental
scrutiny, and has been approved by the Fish and Wildlife
Service, and it drastically reduces the Federal cost.
We would also ask you to oppose H.R. 745. It guarantees
litigation, at a great expense to you and to me, and does
nothing positive to resolve the water shortage.
Your support for positive resolution to these problems
would be appreciated. We have to solve these Indian water
claims. If we don't, I will lose the water I have now. I don't
want to have to explain to my boys, who are now 17, and to my
neighbors, why we don't have any water. Thank you.
[The prepared statement of Mr. Isgar may be found at end of
hearing.]
Mr. Doolittle. Thank you. Is this squawfish one of those
types of fish that the Fish and Game Agencies were trying to
eliminate a few years ago?
Mr. Isgar. That's the one.
Mr. Doolittle. And now it's become an endangered species
and we're having to spend millions to save it, is that what
you're telling me?
Mr. Isgar. We're spending millions to study----
Mr. Doolittle. Study it, right.
Mr. Isgar. To see if this has an effect, if the project has
an effect.
Mr. Doolittle. But that's the reason the withdrawal has
been dropped down to--what, 57,008 feet?
Mr. Isgar. Fifty-seven thousand one hundred, from
approximately 150,000, which effectively eliminated the
irrigation from the project.
Mr. Doolittle. Well, if it isn't an endangered species and
it has an impact on it, it doesn't make any difference, does
it?
Mr. Isgar. Excuse me?
Mr. Doolittle. If the squawfish were not an endangered
species and the environmental analysis found the withdrawal had
an impact on it, you could still make the larger withdrawal,
couldn't you?
Mr. Isgar. I would assume so.
Mr. Doolittle. But, I thought I read somewhere that this
was looked upon either as an endangered species or a threatened
spe-
cies. Is that still undetermined as to whether it's threatened
or not?
Mr. Isgar. It's a listed species.
Mr. Doolittle. OK, so we've got a listed. I thought that
the history you gave of all of this was most interesting.
Sounds like you didn't mitigate much of the opposition by going
through all of these revisions, or the process that led to that
short list over there on the righthand side of the chart as
opposed to what's on the lefthand side of the chart.
Mr. Isgar. Well, you know, as an irrigator, I currently
farm and ranch on the La Plata River, and we have a limited
water supply, and most of the water runs out quickly in 2 or 3
months in the spring. My irrigation water this year quit
probably the first week in June, last month. It's not nearly
enough for the current irrigators, but if we don't solve the
Indian water claims, we could lose all the water we have now.
And it wasn't an easy decision for us to eliminate the
irrigation, especially as I've talked about, our family's 50-
year involvement in building an irrigation project. But the
reality was, if we didn't eliminate the irrigation features, we
couldn't move forward.
Mr. Doolittle. See, what I don't understand is, though, now
you've eliminated the irrigation features, who of all those
opposed to the irrigation features dropped their opposition
because you got rid of the irrigation features?
Mr. Isgar. We could ask them to stand up, I guess.
[Laughter.]
Mr. Doolittle. I mean, that's what I was wondering. It
sounds like we didn't drop any opposition. Might as well put
the irrigation features back in.
Mr. Isgar. Well, I don't know of anybody that dropped their
opposition, unless they're all standing by me now, but.
Mr. Doolittle. I didn't see anybody; nobody raised their
hand.
Mr. Isgar. I was afraid to look myself.
[Laughter.]
Mr. Isgar. No, really, the reality was we gave up
irrigation in order to move the project forward, and why did we
do that? Because we feel like we have to solve Indian water
claims, or we could potentially lose the irrigation water we
have now.
Mr. Doolittle. The odd thing about this, to me, sitting
here listening to this, is that the Indian tribes are as
supportive of this bill as are the non-Indian interests. And
yet we still have this opposition. We have Mr. Remington
representing one of the aspects of the opposition, although I'm
sure that's not the only one.
But let me ask Mr. Remington: You've talked about the--I
don't know if I'm pronouncing this correctly--the SUGO tribal
council?
Mr. Remington. No, the Southern Ute Grassroots
Organization.
Mr. Doolittle. No, but in that I thought you referred to
something called the SUGO--I know, I'm sorry, I know you
represent the Grassroots Organization, but you referred to
something called the SUGO tribal council, didn't you?
Mr. Remington. No, I didn't. The SUGO elder council.
Mr. Doolittle. Oh, the SUGO elder council. Well, what's
that?
Mr. Remington. It is a group of tribal elders who give
direction to myself and to other people within the organization
to follow a plan in how we're going to best define our
strategy. There are four ex-tribal council members and one
former tribal council chairman who is a member of the elder
council.
Mr. Doolittle. So we have expertise; we have the history in
terms of how the project was developed, and we still feel that
there are modifications that could be made to best address the
water project that would be specifically for the Indians? While
I admire the two tribes' magnitude in sharing their largess
with the overall community, I think this project was defined as
a Ute Indian water project, to settle Ute water claims, and we
feel the solution should reflect that.
Let me ask Mrs. Frank or Mr. Frost: Does the SUGO elders
council or the Southern Ute Grassroots Organization have some
official recognition within your tribe?
Mr. Frost. The SUGO have none, none at all. They're not
recognized as an organization that has any type of a power or
authorization to act on behalf of the tribe, in order to sign
agreements, in order to voice any opinion on behalf of the
tribe. There are only five members that I know that belong to
SUGO. You can count them on one hand. I believe the committee
that he is referring to--we have a committee of elders that the
tribal council puts together, that takes care of the rest of
the elders and the handicapped to see that services are
provided to them, that their needs are met as far as their home
and health, and whatever needs that need to be brought. They
are the council's right arm as far as given us information
whether service is provided to those elders out there.
The elders have never signed or had any type of resolution
pertaining to the council regarding the statements made by Mr.
Remington. In fact, none of the--most of the Committee of
Elders do not agree with the concept presented by Mr.
Remington. Nor is Mr. Remington a traditional--recognized as a
traditionalist or a spiritual leader of the tribe in mentioning
some of the aspect that deals with traditional way of life.
Mr. Doolittle. So, as far as you know, there's only five
members of the Southern Ute Grassroots Organization?
Mr. Frost. That's all that I know who have been participate
in fully. The rest that have attended meetings, their meetings,
they have expressed--they're not SUGO, but they go there,
interested tribal members to see what these members say. But
they're counted as part of this group, and they don't
appreciate that, being counted as part of this group.
Mr. Doolittle. And how many members, would you say, are
there of the Southern Ute Indian tribe?
Mr. Frost. I, as elected leader, and my tribal council
members elected to this positions, we talk, are the voice of
1,370-plus tribal members.
Mr. Doolittle. Thirteen hundred and seventy. OK. Well,
thank you. My time is up, and I'll recognize Mr. DeFazio for
his questions.
Mr. DeFazio. Thank you, Mr. Chairman.
Mr. Remington, since he didn't give you an opportunity, did
you want to respond to any of that line of questioning?
Mr. Remington. Thank you, yes, I would. I think that there
are many people in this room and who have been a part of the
Animas-La Plata process, who have forgotten one basic tenet
that governs all of us, and that is the issue of democracy.
Last year, Congressman McInnis during a congressional
briefing, asked me, was I an elected official, and I told him,
no, I wasn't, and nor did I ever pretend or purport to be. But
I am a voter, and a taxpayer, and an American Indian, just as
other people in the Southern Ute Grassroots Organization are.
Our definition of the people that belong--we're not a
membership organization. We are an organization that helps
facilitate changes that must take place on the reservation.
Animas-La Plata is one of those problems. In addition, our
membership, if we can call it that, we do not go, or prescribe,
to a membership system as you would find in the dominant
society. There are people who are representatives of families
who come to the meetings, who then, in turn, go back to their
respective collection of family members and distribute the
news. So, membership, or representation at these meetings never
really has been an issue.
I would think that Mr. Frost should probably look at his
own tribal council general meetings and see how many people
attend that. But, no, democracy does exist, even for American
Indians, and we have a right to determine whether we want to
make any opinions heard regarding issues that affect us on a
local level, on the reservation level, in the county, or
anywhere else. Thank you.
Mr. DeFazio. Thank you, Mr. Remington.
Mrs. Frank, or Mr. Frost--either or both--I did not
intimately follow the Romer/Schoettler process, so I'm not
certain whether the cap on cost-sharing came from that process,
or was added in the legislative drafting process. I'm wondering
if it was the tribes who initiated the cap on cost-sharing for
non-Indian water users. I would assume it wouldn't have been
your initiative, or obviously in supporting legislation, would
have agreed to it.
I'm just wondering, did that come out of the Romer/
Schoettler process or did that come in the legislative drafting
process? Because the cap, if you go back to Animas-La Plata
Project, and you look at phase 1(a), the Federal obligation
would have been $92 million. If you look at the drafted
legislative proposal, the Federal obligation goes up to $217
million, and it caps the other users' obligations.
Mr. Israel. Congressman, my name is Dan Israel. I'm
representing the Ute tribe.
Mr. Doolittle. Let me just, sir, if you're going to
testify, we'll have to swear you in. And that's fine; we're
willing to do that. Just raise your right hand.
[Witness sworn.]
Mr. Doolittle. OK. Would you tell us your name, then,
please?
[Laughter.]
Mr. Israel. Yes, Congressman.
Mr. Doolittle. I knew what you meant. Thank you. Tell us
your name and who you represent.
Mr. Israel. My name's Dan Israel, and I am representing the
Ute Mountain Ute Tribe.
Mr. DeFazio. OK.
Mr. Israel. The M&I cost-sharing, Congressman DeFazio, is
an effort to carry forward the 1986 cost-sharing agreement
terms that were agreed to by all parties, and so those dollars
are simply carried forward today by the M&I users.
Mr. DeFazio. But, the Federal Government somehow ends up
paying an additional $125 million more.
Mr. Israel. Well, that's not quite correct, because what
we've tried to do in these amendments is take an overall
expenditure of about $720 million and reduce it down to about
$280 million.
Mr. DeFazio. So, we're not comparing phase 1(a), which has
some comparability to Animas-La Plata Lite; we're comparing
Animas-La Plata Lite to the entire Animas-La Plata Project.
Mr. Israel. Well, in answering the question about the
Federal obligation, it's been reduced by about $350-$400
million.
Mr. DeFazio. In terms of the entire project, but in terms
of that upon which most of the work was done, and we're hearing
a lot of discussion about all of the environmental work and all
the other things that have been done, that was done on phase 1,
or the first part, of Animas-La Plata. But the way you're
getting consistency here is to say, well, the Federal
Government, if we had ever built the entire project, and we
hadn't even figured out--no one at the Federal Government had
taken any steps, really, to go beyond the phase 1 part, but if
they had, it would have cost this much more, and therefore, the
Federal Government's saving money under the terms. That's what
you're saying here.
Mr. Israel. Well, I think perhaps to clarify, these three
facilities are under our amendment. They also are under stage A
of the existing legislation. Under stage A of the existing
legislation, they would have been subject to repayment as M&I
water. Under our amendments, they are partially subject to
repayment. Part of it is a waive in terms of the tribe's
repayment obligation. So if you look at these three facilities
only, I think it's correct to say that there is less repayment
under our amendments than there are under the stage A
description.
Mr. DeFazio. OK. I wanted to clarify that. Thank you.
Mr. Doolittle. I'd like to thank the members of this panel
for your appearance. We will perhaps have further questions;
I'm sure we will. And we'll hold the record open for your
responses.
[The information referred to may be found at end of
hearing.]
Mr. Doolittle. We thank you very much for coming, and we'll
excuse you at this time, and call forward our final panel,
panel No. 3.
[Witnesses sworn.]
Mr. Doolittle. Let the record reflect that each answered in
the affirmative.
We're pleased to have you here, and we'll begin with Mr.
Orion Utton, rancher from Farmington, New Mexico. Mr. Utton.
STATEMENT OF ORION UTTON, PRESIDENT, ANIMAS RIVER AGRICULTURAL
WATER USERS ASSOCIATION, SAN JUAN COUNTY, NEW MEXICO
Mr. Utton. Mr. Chairman, and Committee members, I am Orion
Utton, President of the Animas River Agricultural Water Users
Association. I feel honored and privileged to testify before
this Committee in support of H.R. 745 and in opposition to H.R.
3478.
The members of the Animas River Agricultural Water Users
Association are major stakeholders in this Animas-La Plata
issue. The water that would be used for Animas-La Plata project
is the same water that we now use to grow our crops. We are
very concerned that the project will seriously threaten the
water supply that we depend on to grow alfalfa, corn, wheat,
oats, and fruit and vegetables.
The Bureau of Reclamation documents for the Animas-La Plata
Project point to 225 cubic feet per second of water that would
be allowed to bypass the pumps at Durango during the summer
months. They state that this water would be for the ecology of
the river, but we believe that this may be the only water that
would be bypassed for agricultural uses. The supporters claim
that senior water rights will be protected, but there is no
Bureau of Reclamation documentation as to how senior water
rights will protected.
I know the ditch system in San Juan County better than
anyone. I served as a county extension agent for 20 years, and
while employed by the New Mexico State University Extension
Service, I worked extensively on water and ditch system issues.
I have also farmed all my life and own a 45-acre farm.
Attached to my testimony is a document prepared by Dennis
Cooper, a water engineer from Santa Fe. This document
summarizes the adjudicated water rights on the Animas River.
The point of the document is that these ditches have the legal
right to divert a great deal more water than the 225 cubic feet
per second described in the Bureau of Reclamation documents for
the Animas-La Plata project. That is not enough water to supply
legal diversions for the Animas River irrigators. Every year
would be a dry year.
With Animas-La Plata Lite, we simply do not know how much
water we would get. There have been no studies, so nobody
knows. But the real danger is that Animas-La Plata Lite does
not deauthorize the full project. We believe that the scaled-
down version of the project is quite simply a ploy to get a
foot in the door so that the full-scale project could be built
later. There is no other plausible explanation for the
supporters wanting to build almost a full-size dam and pumping
plant. Our wet water would be turned into paper water, and you
cannot farm with paper water.
A few years ago, 62 percent of the population supported the
Animas-La Plata project, but now we are beginning to realize
what would happen to the Animas River if the project were
built. Now, only 34 percent are in favor of the project. The
Animas River agricultural water users do not want this project.
Please oppose H.R. 3478 and support H.R. 745. This is the
time to deauthorize the Animas-La Plata project. Do not make it
easier to build. Thank you for the opportunity to testify. I
invite you to ask questions about this issue.
[The prepared statement of Mr. Utton may be found at end of
hearing.]
Mr. Doolittle. Thank you.
Our next witness is Mr. George Arthur, vice chairman of the
Resources Committee of the Navajo Nation Accounts. Mr. Arthur.
STATEMENT OF GEORGE ARTHUR, VICE CHAIRMAN, RESOURCES COMMITTEE,
THE NAVAJO NATION ACCOUNTS
Mr. Arthur. [Speaks briefly in native tongue.]
Honorable members of the Committee here, Mr. Chairman, I
bring you tidings from the Navajo Nation. I'm here to speak on
behalf of H.R. 3478.
Just a few minutes ago, we also witnessed the sympathy and
gracious dedications that have been offered by men of honor
such as yourself, and it's not something that's unknown to the
Navajo people. Just recently, as Mrs. Judy Knight-Frank
indicated, we participated in the manhunt that is ongoing in
the Four Corners area. We, as Navajo Nation police officers, we
certainly extend to the Chestnut family, and the other
gentleman's, our sincere sympathy.
And also, in this discussion, there was a word that was
mentioned: extended family. Extended family on this Hill had a
lose, and we certainly extend our sympathy to people such as
yourself. The Navajo people know very well what extended family
means. Ironically, Navajo Nation has a clan system, and
ironically, my clan is of the Ute clan, the very people that
sit here before you. So Mrs. Judy Knight-Frank is my mother by
clan, and the gentleman from the Southern Ute is my uncle. So,
that's the uniqueness in the way of how I'm here.
We have before you a written testimony, which I will submit
for the record. But the Navajo Nation has three major
components of their support, and has stated an amendment that
would be in the record, one being, although the amount of water
provided to the Navajo Nation would also be reduced, we are
willing to accept such reductions provided H.R. 3478 is amended
to authorize a pipeline for the delivery of all project water
to the Navajo Nation. This was recently alluded to by other
witnesses, being the Farmington/Shiprock water pipeline.
Secondly, we are in support to H.R. 3478, contingent on
amendment that would expressly state that the Navajo Nation
water rights are not affected by this legislation.
Thirdly, we also support H.R. 3478, contingent on the
amendment that would require any water developed under Permit
Number 2883, if such permit is transferred pursuant to section
6 of the Act, to be subject to the same requirements under the
Endangered Species Act that would have been applicable in the
absence of such transfer. Those, gentlemen, are the amendments
that we requested.
In the previous hearing that we had before the Senate,
Senator Nighthorse Campbell indicated that such amendments
would be acceptable to him. So, with that, I would ask that, in
light of the extended family concept, that the Navajo Nation is
a position, and I, as a member of the Ute clan, would offer to
my mother, the Ute tribe, and to my uncle, the Southern Ute
tribe, a cup of water that you, as a child, might have offered
to your mother, in the days when there were hot summers and
when she thirsts.
Thank you, gentleman.
[The prepared statement of Mr. Atcitty may be found at end
of hearing.]
Mr. Doolittle. Thank you very much.
Our next witness is Mrs. Lori Potter, an attorney with
Kelly, Haglund, Garnsey and Kahn.
STATEMENT OF LORI POTTER, ATTORNEY, KELLY/HAGLUND/GARNSEY AND
KAHN, DENVER, COLORADO
Ms. Potter. Thank you, Mr. Chairman, members of the
Committee. For the record, it's ``Ms.'' Potter. The only Mrs.
Potter is my mother. She's a spirited public citizen, but she's
not here today.
Mr. Doolittle. Well, I apologize. They had ``Mrs.'' Down
here.
Ms. Potter. No problem, but she would want me to set the
record straight.
Thank you for this opportunity to testify on H.R. 3478 and
H.R. 745. I'm from Denver, Colorado. I'm a lawyer, and I
represent, and have for the last 10 years represented, national
and local environmental groups and taxpayer groups seeking
alternatives to the proposed Animas-La Plata project. On behalf
of those groups and their members, I want to thank Congressmen
DeFazio and Petri for introducing H.R. 745, a bipartisan bill
with 28 cosponsors, and for championing this issue in Congress
for many years.
Animas-La Plata is widely known as ``Jurassic pork'' due to
its tremendous size and cost, its dismal cost/benefit ratio,
its unfeasibility, its environmental impacts--all of which
belong to a dam-building era that's long past. Animas-La Plata
Lite perpetuates many of those same problems.
First of all, Animas-La Plata Lite does not deauthorize or
leave the full Animas-La Plata Project behind. The bill H.R.
3478 holds open the possibility, both legal and financial, that
the entire project, all of the components you see written in
the chart under ``phase 1 facilities'' and ``phase 2
facilities'' will eventually be built.
The reservoir and dam are sized at 92 percent of their
original project size, and the project proponents, in their
materials and in their statements to the press and others, are
quite frank and quite freely admit that they would like to come
back and build the entire project eventually. So Animas-La
Plata Lite does carry on the problems and the criticisms that
have been made of the full Animas-La Plata project. And it has
a few of its own, as well.
Some of this has been alluded to here today: the cap on the
state and local cost-sharing. The fact that the State and local
cost-sharing is a smaller percentage of the overall price tag,
than was the case under the full Animas-La Plata project. The
fact, as I've said, that the full project is not deauthorized,
and the environmental impacts that loom from damming and
depleting the flows of a free-flowing western river, damming
another creek and pumping the water 500 vertical feet into that
basin, where it will sit until it is returned to the very same
river. All of which environmental impacts have been documented
in an environmental impact statement which has been disapproved
by the EPA.
My clients are seeking a taxpayer-friendly and
environmentally friendly alternative to Animas-La Plata and
Animas-La Plata Lite. We also seek a solution that resolves the
Indian water right issues that make this such a difficult
problem. We have proposed two alternatives in the process that
you've heard talked about here today. Those include the use of
existing Federal facilities that store water, some of which
water is stored for and delivered to these very tribes, and the
acquisition of water from willing sellers, upstream of and
within the reservations in question.
We support H.R. 745 because it is a bill designed to do two
things: to direct the Secretary to negotiate an alternative
solution with the tribes, and to make it clear that the old
Animas-La Plata must be abandoned as unfeasible. H.R. 745
alone, of the two bills, does these things. By contrast, ALP
Lite and H.R. 3478 perpetuate the old problems and invite some
new ones.
H.R. 745 directs the Secretary to negotiate an alternative
that's consistent with all Federal laws. All parties should
endorse nothing less than a resolution that complies with the
law. We've heard the administration speak of its opposition to
any alternative which does not comply with the law. That is,
after all, what all of the project sponsors--all of the project
participants--committed to do in the 1986 settlement agreement
and in the cost-sharing agreement for this project.
The virtue of H.R. 745 is that it provides a way to address
all of the legitimate interests and problems that have been
raised here. We hope that the Committee will act on H.R. 745
and use it as a way to bring closure to this matter. Thank you.
[The prepared statement of Ms. Potter may be found at end
of hearing.]
Mr. Doolittle. Thank you.
Our final witness will be Mr. Mark Duncan, Chairman of the
San Juan Water Commission in New Mexico. Mr. Duncan.
STATEMENT OF MARK DUNCAN, CHAIR, SAN JUAN WATER COMMISSION, AND
CHAIRMAN PRO TEM, SAN JUAN COUNTY COMMISSION, NEW MEXICO
Mr. Duncan. Mr. Chairman and members, I'm Mark Duncan,
chairman of the San Juan Water Commission and chairman pro tem
of the San Juan County Commission, and with me today I have Mr.
Jim Dunlap, chairman pro tem of the San Juan Water Commission.
I would like to thank you for the opportunity to appear today
to support the passage of H.R. 3478.
I am here because, as an elected official, I have
responsibility to 110,000 New Mexicans to ensure their supply
of drinking water. We need reliable, renewable water from the
river system because we have no potable groundwater. We don't
have the luxury of 75 inches of rain per year. We have less
than 10 inches of rain per year. Even more critical is the fact
that most of the member entities of the San Juan Water
Commission are right now using this water when it's available.
If they cannot use that water now, they would be scrambling for
a drinking water supply.
The revised ALP embodied in this new legislation would
enable us to build the storage necessary for sustained M&I use.
That's why I'm asking you to support it. We have solid support
from 110,000 people in the San Juan County for this project,
including ten rural water associations and the towns of
Farmington, Aztec, and Bloomfield. The voters in San Juan
County voted overwhelmingly in favor of this project, and we
have taxed ourselves to pay our share of this project.
H.R. 3478 is the product of 2 years of tough negotiations
and sacrifice, as Governor Romer so accurately explained. We in
San Juan County sacrificed a significant portion of our
depletions, almost one-third, so that the compromise would
work. That is our bottom-line sacrifice. Any more, and the
water commission has to start cutting back on water depletions
that most of the three towns and ten rural water associations
are already using.
As you know, it is very difficult to take away a benefit
once you've handed it out. The administration's testimony at
the Senate hearing last month, however, puts us in that
difficult spot. The administration said we should scrap the
revised ALP and begin again. They attended 2 years of meetings
in Governor Romer's process, but offered no solutions. We have
given you our best compromise. The administration, if it had
been listening, would have known that.
Now, the administration wants to dump the non-Indians and
pay off the Indians. We cannot be paid off, because we must
have wet-water storage. We negotiated in good faith for 2
years, but apparently the administration did not. We, frankly,
have had all the good faith we can stand from the
administration.
The list of alternatives has been examined time and again;
first during the exhaustive NEPA process, at the expense of $21
million and a 3-foot-tall stack of paper, and again during
Governor Romer's process. The Indian tribes, the irrigators,
and domestic suppliers, like the San Juan Water Commission,
developed a workable compromise. The administration appears
determined to pit neighbor against neighbor. H.R. 745 does the
same thing, by deauthorizing the ALP and instructing the
Secretary to negotiate only with the tribes. This is wrong and
should be defeated.
New Mexico's water will not be held hostage to negotiate a
final settlement with anyone. If the administration is so
intent on negotiating and settling only to tribes' right, they
will do so without New Mexico water.
We also received a letter from Mr. David Hayes, in which we
were referred to as ``interested parties.'' Even putting aside
that slight, we have to ask, ``Where is Mr. Hayes today?'' The
Federal Government promised us it would help develop New
Mexico's allocation of Colorado river water, but for 40 years,
it has prevented us from developing it by reserving it to the
Animas-La Plata project. The storage facility promised by the
Ridges Basin Reservoir will allow us to develop our allocation,
development stymied for 40 years by the delays in the ALP
project. By that delay, we have estimated San Juan County has
foregone gross economic benefits amounting to more than $740
million. The government has a duty to San Juan County and New
Mexico to end the delays that have cost my county so much.
We were fair and honest in our negotiations for the revised
ALP, and we expect nothing less from the administration of the
Federal Government. Please pass H.R. 3478 to keep the promise
that Congress made long ago to me and my constituents. Thank
you for holding this hearing and allowing me the opportunity to
speak.
[The prepared statement of Mr. Duncan may be found at end
of hearing.]
Mr. Doolittle. Thank you, Mr. Duncan. Do you and Mr. Utton
talk from time to time?
Mr. Duncan. Yes, sir, we do.
Mr. Doolittle. You're both from more or less the same area,
right?
Mr. Duncan. Yes, sir.
Mr. Doolittle. He seems to be concerned that, if Animas--I
guess he's worried about the full one being built; I'll ask him
in a minute about the Animas Lite. But, anyway, do you share
his concern that they'll lose their agricultural water if this
project is built?
Mr. Duncan. No, sir, I do not. The ALP Lite will take 13
percent of the water in 10 percent of the driest years, out of
the River. During the spring flood, often we have the
opportunity to take that water out and pump it up into the
reservoir. We will do so and put that water back in during the
driest times of year: July, August, September, and the first
part of October.
Mr. Doolittle. Mr. Utton, would you care to respond to
that?
Mr. Utton. Yes, I would. I have before me a document that I
researched out of the definite plan report, and it lists the
number of times that the New Mexico water would be released to
the river, New Mexico M&I water, and I would like to read you
the amount of water. In 1931, the amount of water that would be
released to the New Mexico M&I would be 4/10 of a cubic feet.
Mr. Doolittle. Which year is that?
Mr. Utton. Nineteen thirty-one, which was an extremely--
1931, 1932, 1933 and 1934 were really extremely dry years. In
1934, probably the driest year on record, they would require
7.4 cubic feet per second released to the river. In 1937 they
would require .2 cubic feet per second to be released to the
river. In 1939, 3.3 cubic feet per second to be released to the
river. In 1940, 1.3 percent--or 1.3 cubic feet to be released
to the river. In 1950, 2.3----
Mr. Doolittle. Let me interrupt and ask--now, put this in
context for me.
Mr. Utton. OK, I will, sir.
Mr. Doolittle. What does that mean?
Mr. Utton. It means that very little water will ever be
released to the river to New Mexico, and it means that we do
not need that storage in Colorado. We need storage in New
Mexico.
Mr. Doolittle. Oh, so the storage you contend with then,
this reservoir they're creating, will take the water that would
otherwise flow down the river to New Mexico?
Mr. Utton. I'm not so worried about the Animas-La Plata
Lite as I am the full-blown project. It's a full-blown project
that would take vast amount of water out of our river during
our critical irrigation season, but what I'm saying is that the
reservoir does not need to be that large, and I've said that in
my testimony, and I reaffirm it. The water that would be
released--the water that San Juan County would get--would most
of the time flow down the river as it always has, and with the
exception of these releases. And I didn't really, I didn't
mention the zeroes. There is as many zeroes in as what they
are, those figures that I told you. Those figures are really
insignificant in terms of the 33.4 cubic feet per second that
is released in New Mexico M&I demand. So, it's really
insignificant.
Mr. Doolittle. Mr. Duncan, now you're in New Mexico, too,
the same area. Are you concerned about the figures from those
dry years? I mean, if they built the whole project, which is
theoretically possible, I guess?
Mr. Duncan. Mr. Chairman, I don't have a clue where those
numbers came from, first off, that he was quoting there, so
I'll go from what I do know. No, I'm not concerned with the
project being full-blown. If you built a reservoir full-scale--
let's just say hypothetically, if you built a reservoir full-
scale)--we would have the opportunity to set aside M&I water
for maybe a 2 or 3-year period, and we often have droughts of 2
or 3 years. And so we'd have that opportunity to set aside
water for a 2 or 3-year period, therefore minimizing the
downstream effect. So, while I don't know where those numbers
came from, I'm not worried in the least about that.
Mr. Doolittle. Mr. Turney is the State engineer, and he's
already taken the oath. Mr. Turney, why don't you grab a
microphone and share with us your insight on this.
Mr. Turney. Mr. Chairman, I wanted to just briefly touch on
a couple of issues here. First of all, he talked about some
minimum flow, flowing past the Durango, city of Durango,
bypassing the pumping station, and that number was much less
than when you added up a court decree that was issued in
Mexico. And that is a true statement. However, when we look at
court decrees, we also believe in a thing where current flows
come back into the river and they are shared by downstream
users. That's the principle of the Appropriative Water Doctrine
in New Mexico. So you can't--it's not a very fair comparison to
add up all the flows in the decree and just say, gee, they
exceed the amount of flow past the Durango pump station.
In addition, there are additional in-flows that come in
above the state of New Mexico. For instance, there's a river up
there--I believe it's called the Floreida--that comes in, and
you have to look at the total picture of the points of
diversion. In some of the work that we have done, we think that
the existing decree rights can be adequately protected.
However, the Animas-La Plata rights for the cities would not be
available all the time, and in fact they may have to be
restricted when the very low flows start to occur at
Farmington, and this is an issue.
Mr. Doolittle. So, in that case, the agricultural water
would be preferred over the M&I?
Mr. Turney. Yes, and in the West, we have an appropriative
doctrine that's based on priority. It's not people over
agricultural, or endangered species over agricultural. It's
based purely on priority, and that's set up in our
constitution, priority of time. And that sets who will be the
senior water-right holder.
Mr. Doolittle. Well, endangered species seem to get the
absolute first claim regardless of who has the water rights,
don't they?
Mr. Turney. I've heard that claimed, but that's not in our
constitution.
[Laughter.]
Mr. Doolittle. Thank you. OK, Mr. DeFazio.
Mr. DeFazio. Thank you, Mr. Chairman.
Mr. Duncan, you talked about, you've already levied the
taxes, for some time now, to pay for the share--your share.
What amount of money has been raised by the people of the San
Juan district?
Mr. Duncan. Mr. Chairman or Congressman, we have about $8
million set aside in that account right now.
Mr. DeFazio. Eight million dollars? And that's for
construction, construction operation?
Mr. Duncan. That is for the construction.
Mr. DeFazio. For your share of the construction. OK, well,
under this cost-sharing agreement, local cost-sharing is capped
at $13 million, Colorado at $16 million, so, you're going to
spend that whole $8 million, you're going to be paying more
than half of the local cost-sharing. Are you still expecting to
spend that $8 million?
Mr. Duncan. Yes, sir, I sure am, Mr. Chairman.
Mr. DeFazio. OK, so, your obligation has not changed under
this cost cap?
Mr. Duncan. Mr. Chairman, Congressman, our cost-sharing, as
I'm trying to remember who it was that stated in the second
panel, appropriately goes down according to what we get out of
this, and I'd like to ask council to make sure on that.
Mr. DeFazio. OK, so you're saying you're going to pay
proportionately the same amount?
Mr. Duncan. Yes, sir.
Mr. DeFazio. With the cost cap. I guess the question would
be, why should anyone in Congress who doesn't represent that
district advocate a cost cap which isn't extended in other
projects?
Mr. Duncan. Mr. Congressman----
Mr. DeFazio. [continuing] to non-Indian users?
Mr. Duncan. In my written testimony, I think you will see a
number of projects that were given leniency by Congress, and
we're not asking for any laws to be broken here; we're not
asking for any funding laws to be broken here.
Mr. DeFazio. Well, the laws have changed. I mean, it is
much more--used to be, in the old days, Congress built projects
and pretty much didn't even ask for repayment sometimes, but
the laws have changed.
Ms. Potter, on yours, Governor Romer got into an exchange
with me. We were discussing the environmental implications, and
he said that, in support of his outstanding environmental
record, he was confident that, and the reason he supported
sufficiency, was because of all the studies and all the work
that had been done. But, in reading page 4 of your rather
enlightening testimony, which, given your time restraints, you
didn't get to go into, it sounds pretty dismal here. It says,
series of actions, Bureau admitted its own, ALP was in
violation of the law, out of compliance with ESA, EIS was
inadequate, out of date, but you had to sue to get the agency
to admit that. Bureau claimed to be exempt from the Clean Water
Acts, had no permits, didn't qualify for an exemption; the
Bureau illegally dumping drilling fluid in Basin Creek. EPA
cited a violation. The Bureau then began programming exhuming
burial sites.
So, I'm puzzled, because Governor Romer was so hot about
that. I mean, I started to think, well, maybe I'm wrong. I
mean, is there some sufficient environmental work that has been
done that would withstand a court challenge, that is directed
at the specifics of Animas-La Plata Lite that's before us?
Ms. Potter. Well, no, as Commissioner Martinez stated,
there are aspects of the Animas-La Plata Lite that are
different and that, quite clearly, have not ever been studied.
That is on top of existing documentation, which, as you've just
indicated, has some real problems.
First, the EIS was the basis of a lawsuit. The Bureau
settled that lawsuit and agreed to do a new EIS. The next
document that it came out with received such public criticism
that it was withdrawn. The next document that it came out with
has received an unsatisfactory rating from the EPA, and it's
also been criticized by the Corps of Engineers. It, of course,
has not been a subject of any court challenge, but there isn't
an adequate EIS in the bunch.
Mr. DeFazio. Does this, and this doesn't just resolve on
the issue of squawfish; this goes to many other issues of law?
Ms. Potter. Oh, no, it goes to a great number of issues, of
endangered species and other wildlife issues, are among those
things that are addressed, but there's a full range of issues,
and it's important to know that an adequate EIS is the entire
basis for the claim of exemption from the Clean Water Act. The
project is claiming an exemption from the Clean Water Act based
on a seldom-used provision known as 404(r), and that requires
an adequate EIS to be in place, and it requires a full analysis
of the wetlands impacts to have been done. Those, too, are
under question by the same agencies--the EPA and the Corps of
Engineers, as I'd mentioned previously. So those inadequate
documents are the basis for the claim of exemption from yet
another Federal law.
Mr. DeFazio. You raised one other point which no one else
has touched on. You raised a number of points in your
testimony, one in particular caught my attention, because this
is an area where I'm much better qualified than in water law
and the intricacies of this project--and that is the power
costs for pumping the water uphill. Apparently, there was some
assumption--it says the market value of power reserved for ALP
is $6 million per year, subsidized by the Federal Government.
Now, what do you mean here? How's that?
Ms. Potter. Well, a certain amount of power is being put
aside to pump the water from the river level to the basin
level, which is about 500 feet above the river, and that power
value can be calculated using present market rates in the
region. That value that you read is the amount of Federal power
multiplied by the present market rate for electricity at the
price per kilowatt hour.
Mr. DeFazio. And is this Bureau of Reclamation-produced
power? Is it produced at Bur-Rec projects, or at other
Federal--what kind of----
Ms. Potter. Yes, it's a WAPA, Western Area Power
Administration, power allocation set aside for this project. It
is Federal power produced at Federal facilities.
Mr. DeFazio. So it's a WAPA allocation. So it's a melded,
wholesale power. I mean, it's not from a dedicated source.
Ms. Potter. That's right.
Mr. DeFazio. So, the Western Area Power Administration
would be mandated here to provide power to this project, and
forgo the market rate for that power?
Mr. Potter. That's correct.
Mr. DeFazio. That's extraordinary. That's absolutely
extraordinary and flies against everything else I'm hearing in
Congress these days about power deregulation. That we would be
mandating that the Federal Government provide power at a below-
market cost to this project. That's absolutely extraordinary.
Thank you.
Mr. Doolittle. I'd like to thank the members of this panel
for their testimony. We will have further questions and ask you
to respond expeditiously.
[The information referred to may be found at end of
hearing.]
[The prepared statement of Mr. Norton may be found at end
of hearing.]
[The prepared statement of Mr. Blassingame may be found at
end of hearing.]
[The prepared statement of Mr. Griswold may be found at end
of hearing.]
[The prepared statement of Mr. Kroeger may be found at end
of hearing.]
[The information referred to follows:]
Mr. Doolittle. With that, we'll excuse the panel, and this
hearing is adjourned.
[Whereupon, at 6:10 p.m., the Committee adjourned subject
to the call of the Chair.]
[Additional material submitted for the record follows.]
Statement of Hon. Gary E. Johnson, Governor, State of New Mexico
I speak today on behalf of H.R. 3478, which makes changes
to the authorized Animas La Plata Project, a project to which
New Mexico is a beneficiary.
The need for a dependable water supply for Northwest New
Mexico has long been recognized. Although the majority of
communities in the state get the water from wells, communities
in Northwest New Mexico get their water from the Animas and San
Juan Rivers. Groundwater in the area contains such high levels
of contaminants that, for the most part, it is all but
unusable. During periods of extended drought, the Animas River
has historically run dry. Raw water storage is necessary to
supply water to communities when the river is in a low flow
stage. The Animas-La Plata Project is designed to provide a
water supply during low flow river conditions for both Indians
and non-Indians in New Mexico, a goal which the State of New
Mexico strongly supports.
H.R. 3478 is designed to support objectives established by
the New Mexico Interstate Stream Commission. These objectives,
in addition to providing a final settlement of Colorado Ute
Indian water right claims and a much needed municipal and
industrial water supply--include a reduction in project costs,
staying within allowable river depletions to provide a habitat
for endangered species, protection of senior water rights,
address water quality concerns, and transfers a portion of the
ownership of the project water rights from the Secretary of
Interior to the state of New Mexico for project beneficiaries.
Studies, done under a cooperative agreement funded through
the Bureau of Reclamation, indicates that the cost of the
project has been substantially reduced.
The bill further provides for a distribution of project
water which stays within the U.S. Fish and Wildlife Biological
Opinion.
The bill would appear to address water quality concerns
previously expressed by New Mexico.
A basic premise of the project is that senior water rights
in New Mexico will be protected. As the project planning
proceeds forward, projected operating schedules will have to be
developed by the Bureau of Reclamation, in close cooperation
with the New Mexico State Engineer, which will adequately
demonstrate that senior water right holders will in fact be
protected.
The bill contains language directing the Secretary of the
Interior to assign a portion of the water right permit, now
held in the Secretarys name, to the state of New Mexico for
certain project beneficiaries in New Mexico. This concept we
support.
Additionally, we have had discussion with the Navajo Nation
to include language in the bill to ensure that the water which
they will receive under the project can be delivered to the
Navajo communities downstream of Farmington and Shiprock. Over
the past two decades, the population of the Navajo community of
Shiprock has increased. Proposed amendments to the bill, which
are now being discussed, would allow for the construction of a
new Farmington to Shiprock pipeline to augment an existing
pipeline. This pipeline is essential to address the public
health and safety of the Navajo communities and is a project
which the State very much endorses. The State welcomes
involvement in this ongoing discussion to insure that the water
rights of all parties are properly defined pursuant to state
law.
The reconciled Animas La Plata Project generally settles
the claims of two Colorado Ute Indian tribes to waters of the
Animas and La Plata rivers. This is an important aspect of the
project to provide certainty to New Mexico water users on these
two rivers so that they will in fact have wet water available
to them under their state water rights.
In closing, H.R. 3478 will aid in providing a more
dependable water supply for both Indian and non-Indian
communities in northwest New Mexico. Northwest New Mexico is
growing and it is important to provide an adequate water supply
for the area's future.
------
Statement of Thomas C. Turney, State Engineer, Santa Fe, New Mexico
I speak today on behalf of H.R. 3478, which makes changes
to the authorized Animas La Plata Project--a project to which
New Mexico is a beneficiary.
The reconciled Animas La Plata Project would provide two
basic components of New Mexico's plan for development of its
water resources in Northwest New Mexico. The reconciled project
generally settles the claims of two Colorado Ute Indian tribes
to waters of the Animas and La Plata rivers. This is an
important aspect of the project because it provides certainty
to New Mexico water users on these two rivers so that they will
in fact have wet water available under their state water
rights.
Secondly, the reconciled project will provide a more
dependable water supply for both Indian and non-lndian
communities in northwest New Mexico. Northwest New Mexico is
growing and it is important to provide an adequate water supply
for the area's future.
The need for a dependable water supply for Northwest New
Mexico has long been recognized. Although the majority of
communities in the state get their water from wells,
communities in Northwest New Mexico get their water from the
Animas and San Juan Rivers. Groundwater in the area contains
such high levels of contaminants that, for the most part, it is
all but unusable for potable water. During periods of extended
drought, the Animas River has historically run dry. Raw water
storage is necessary to supply water to communities when the
river is in a low flow stage. The Animas-La Plata Project is
designed to provide a water supply during low flow river
conditions for both Indians and non-lndians in New Mexico, a
goal which the State of New Mexico strongly supports.
H.R. 3478 is a compromise bill negotiated by Indians and
non-lndians. It supports objectives established by the New
Mexico Interstate Stream Commission. These objectives include,
in addition to providing a settlement of the Colorado Ute
Indian water right claims and a much needed municipal and
industrial water supply--a reduction in project costs, staying
within allowable river depletions to provide a habitat for
endangered species, protection of senior water rights,
addresses water quality concerns, and transfers a portion of
the ownership of the project water rights from the Secretary of
Interior to the state of New Mexico for the project
beneficiaries.
Studies, done under a cooperative agreement funded through
the Bureau of Reclamation, indicate that the cost of the
reconciled project has been substantially reduced.
The bill further provides for a distribution of project
water which stays within the U.S. Fish and Wildlife Biological
Opinion.
The bill would appear to address water quality concerns
previously expressed by New Mexico as it eliminates certain
irrigations lands which could have been a source of heavy
metals.
A basic premise of the project is that senior water rights
in New Mexico will be protected. As the project planning
proceeds forward, projected operating schedules will have to be
developed by the Bureau of Reclamation, in close cooperation
with the New Mexico State Engineer, which adequately
demonstrates that senior water right holders in New Mexico will
in fact be protected.
The bill contains language directing the Secretary of the
Interior to transfer a portion of the water right permit, now
held in the Secretary's name, to New Mexico for the project
beneficiaries. We support this concept.
Additionally, discussions are ongoing with the Navajo
Nation to include language in the bill to ensure that the water
which they will receive under the project can be delivered to
the Navajo communities downstream of Farmington and Shiprock.
Over the past two decades, the population of the Navajo
community of Shiprock has swelled. Proposed amendments to the
bill, which are now being discussed, would allow for the
construction of a new Farmington to Shiprock pipeline to
augment an existing pipeline. This pipeline is essential to
address the public health and safety of the Navajo communities
and is a project which the State very much endorses. The State
welcomes involvement in these ongoing discussions to ensure
that the water rights of all parties are properly defined
pursuant to state law.
Thank you for the opportunity to testify before you today.
------
Statement of Clement Frost, Chairman, Southern Ute Indian Tribe
Good Afternoon. My name is Clement Frost. I am the Chairman
of the Southern Ute Indian Tribe. I am here today to testify in
support of H.R. 3478, the Colorado Ute Settlement Act
Amendments of 1998. On behalf of the Southern Ute Indian Tribe
and its Tribal Council, I ask that Congress carry out the
promises that the United States has made to the Southern Ute
Indian Tribe through the years to provide the water which the
Tribe needs now and in the future.
I am also here today to strongly oppose H.R. 745, the bill
to deauthorize the Animas-La Plata Project. That bill breaks
the United States' agreement with the Colorado Ute Tribes that
was signed into law by President Reagan in 1988. It ignores the
years of work that went into the 1988 Settlement Act and would
violate the United States' trust responsibility to the two
Colorado Ute Tribes. I can promise this Committee that if the
Congress were to de-authorize the ALP and demand that the
Tribes return to the negotiating table as proposed in H.R. 745,
my Tribe would return to court. We would sue the United States
for its breach of the 1986 Agreement and we would seek to
establish our rights through litigation. Why would any tribe
negotiate with the United States if the Congress is willing at
any time to back out of settlement legislation passed by
Congress and signed into law by the Presi-
dent simply because it no longer likes the agreement? That may
have happened in the past, but my Tribe will not be a part of
repeating that history. The Southern Ute Indian Tribe has been
more than willing to work to address the problems that have
delayed the construction of the ALP. That is a far cry from
walking away from the promises that were made in the 1988
Settlement Act as demanded by H.R. 745. The right way to
address the issues facing the ALP is H.R. 3478; it is not to
pretend that the 1988 Settlement Act was never passed.
H.R. 3478, the legislation to amend the 1988 Settlement Act
cannot be understood without knowing the history of the Ute
Reservation. When the Ute Bands signed the treaty establishing
the Ute Reservation in 1868, the United States promised the Ute
people that the Reservation would be a permanent home that
would support our people forever. The key to carrying out that
promise is water--a fact that the Tribal leadership has always
known but which the United States has sometimes forgotten.
Long before the water rights litigation started in the
1970's, the Southern Ute Indian Tribal Council recognized that
storage of water from the Animas River was needed to provide a
source of water to meet the needs of future generations of the
Southern Ute Tribe. While the opponents to the Project say that
the Tribes did not become involved with the Project until the
settlement discussions in the 1980's, both Ute Tribes supported
the authorization of the Project in 1968. Afterwards, the Ute
Tribes worked with the ALP District and the Bureau of
Reclamation to develop a Project that would serve the needs of
the Tribes.
Former Chairman Leonard C. Burch and former Chairman Chris
A. Baker worked hard to have the Animas-La Plata Project built.
They knew that the Project is the best way for the Tribe to get
the water it needs for its future. I also now that the future
of my Tribe depends on making sure that the Tribe has a
reliable water supply that can be used for the development of
our Reservation.
When the Settlement Act was signed by President Reagan
nearly ten years ago, the Tribal Council thought it had finally
won its long battle to acquire a firm water supply to meet the
present and future needs of the Southern Ute people.
It is important to understand how much work had been done
on the Project when the settlement agreement was signed in
1986. A definite plan report for the Project had been
completed; an Environmental Impact Statement had been finished
and construction of the Project had been approved under the
Endangered Species Act. In other words when the Settlement
Agreement was signed, all environmental compliance work was
done. When Congress agreed with the Settlement in 1988, it knew
what it was talking about. The Project had been studied and
studied, and its advantages and disadvantages were well known.
The parties to the settlement are here today to support
modifications to the 1988 Settlement Act, which all of the
parties have accepted in an effort to make the Tribal
settlement real. A great deal of sacrifice was required to make
the current proposal work. The foundation for the settlement is
still the Animas-La Plata Project but only a small portion of
the project is required to fulfill the settlement. No longer
will water have to be taken to the La Plata Basin. No
irrigation facilities are included in the settlement.
The modifications will greatly reduce the cost of the
Settlement. They will also answer any question over the
environmental impact of the Project. In the current political
climate, such changes are necessary for the Settlement to move
forward. As a result of those changes, the Tribe will not
receive all of the benefits that it was promised in 1988. But
the Tribe will get a reliable supply of stored water that it
can control for its own use--that is what we have always
wanted. We also know that construction of a storage reservoir
is only the first step in putting water to use for the benefit
of our people. But it is a very important first step in
building a successful economy on our reservation. We are
confident that with that supply we can move forward into the
next century. Certainly, the successes of the Southern Ute
Indian Tribe--and there are many--all relate to the Tribe
taking control of its resources and using them for the benefit
of tribal members.
I also want to address the position of the Administration.
As you may have heard, in the Senate, the Administration
strongly opposed the solution that the Tribes, the State of
Colorado and the other parties to the 1986 Settlement have
developed to address the concerns that have been raised about
the Project. The Tribes were outraged by that testimony.
We have tried our best to work with the Administration to
carry out the 1988 Settlement. So far, we have met with little
success. In the spring of 1996, the leaders of the Ute Tribes
met with Secretary of the Interior Bruce Babbitt to discuss the
matters that were delaying the construction of the Project and
the implementation of the last phase of the settlement of the
tribal water rights--the Project. Secretary Babbitt suggested
that we work with Governor Roy Romer to try to develop an ap-
proach that might resolve the concerns that had been raised
about the Project. For over a year, the Tribes and other
settlement parties met with the project opponents and
representatives of the Department of the Interior and the
Environmental Protection Agency under the supervision of Lt.
Governor Gail Schoettler. Throughout this process, the Federal
agencies never acknowledged their trust responsibility to the
Tribes nor tried to help find a solution that would remain true
to the spirit of the 1988 Settlement Act.
At the end of the Romer-Schoettler process, there was no
consensus on how to proceed. Instead, two alternatives emerged.
The alternative supported by the Tribes, the other parties to
the 1988 settlement, and ultimately the State of Colorado, is
reflected in H.R 3478.
The other alternative, which was rejected by the Tribes,
called for the creation of a fund to allow the Tribes to
purchase agricultural water rights from their neighbors and
then attempt in state water court to change the uses of such
water to meet tribal needs. In a water short area such as
southwest Colorado, that suggestion is a formula for disaster
socially and politically and would not provide the Tribes with
the water which they need and which the United States promised
to them under the 1988 Settlement Act. The proposal was not
acceptable to anyone who would have been affected, nor was it
acceptable to the State of Colorado. Nevertheless, the
Department of the Interior insisted on studying that
alternative, although no report has ever been made public or
shown to tribal representatives.
Despite our repeated requests, no one from the
Administration was ever willing to carry on a meaningful
conversation with tribal representatives about the Tribes'
intent to implement the 1988 Settlement Act by reducing the
scope of the Project required to complete the settlement prior
to the hearing in the Senate. Until the day of the hearing, we
expected that the Administration would support the compromises
that had been made, although we understood that some of the
details of the proposed legislation were troublesome. We
learned of the Administration's opposition to our position from
the staff of the Indian Affairs Committee late in the morning
of the day of the hearing. No one from the Administration
discussed with us the Administration's plan to destroy the
years of hard work that led to the compromises contained in
H.R. 3478. Nor did anyone from the Administration tell us or
any tribal representative that after years of claiming to
support the ALP and the 1988 Settlement Act, the Administration
was now arguing that a search for new alternatives was required
that would necessitate years of additional study. The
Administration's opposition and the way that it was announced
failed to live up to the government to government relationship
between our Tribes and the United States.
The Administration's disappointing performance in the
Senate led to widespread criticism. Now the Administration
wants to talk to us, saying that its opposition was
misunderstood. We understand the need to talk but we have many
questions. Does the Administration understand that its
representatives must talk with all the parties to the 1986
Settlement Agreement? Why should the Tribes believe that the
Administration is now willing to work with us and our neighbors
in good faith? How do we know that they can be trusted and that
those within the Administration who are opposed to any water
development will not destroy any agreement we might reach with
Interior? Is the Administration finally willing to admit its
obligation to provide the Tribes and our neighbors with water
stored from the Animas River? Can they assure us that we will
not spend another 10 years discussing the merits of the
Settlement after it is enacted by the Congress?
In closing, I want to make three points. First, despite the
magnitude of the modifications to the Settlement that have been
proposed, we do not expect that these compromises will satisfy
all of our opponents, many of whom simply object to any water
development no matter what its purpose and no matter how small
its impact. I hope that you understand the substantial benefits
of this Settlement to the Southern Ute Tribe and also recognize
that it provides water to the two Ute Tribes without taking
water away from our non-lndian neighbors. Second, I want to
recognize the honor and integrity of our non-lndian neighbors
who are the Tribes' partners in the Project. The negotiations
that resulted in the modified Settlement were long and
difficult. The first goal of our partners was not to serve
their own interests. If that had been the case, this modified
settlement would not have been possible. But our partners felt
the need to make sure that the United States lived up to its
promises to the Ute Tribes. We appreciate that. Finally, we ask
Congress not to forget the promises that were made in 1868 and
confirmed in 1988. We ask you to pass H.R. 3478.
------
Statement of Judy Knight-Frank, Chairman, Ute Mountain Ute Tribe
1. Introduction.
``In order to reduce future controversy'' the United States
Departments of Justice and Interior entered into the 1986
Colorado Ute Water Rights Settlement Agreement. In Public Law
100-585 Congress implemented the 1986 Agreement. H.R. 3478
represents the good faith effort, after a decade of intense
environmental compliance, by the non-Federal parties to the
1986 Agreement, to accept a substantially reduced water supply
project.
2. H.R. 3478 Significantly Reduces The Cost of Settling The
Colorado Ute Tribal Water Rights.
H.R. 3478 results in a reduction of the cost to settle the
Colorado Ute water rights as described in the 1988 Settlement
Act--estimated by the Bureau of Reclamation to be $379 million
in 1986 and $675 million in 1998. A seven year construction
schedule in H.R. 3478 would result in 7 annual Federal
expenditures of $38 million. H.R.3478 therefore implements a
decade old Indian water rights settlement using substantially
fewer dollars than originally provided for in the 1988
Settlement Act. In exchange for reducing the water supply by 40
percent, the Colorado Ute Tribes seek a waiver of their capital
repayment. Under existing law, the Tribes' repayment is
deferred until revenues exceed their costs. The Tribes'
proposed waiver therefore operates to expedite the productive
use of these water supplies.
3. H.R.3478 Implements Endangered Species Act Protections.
H.R. 3478 also provides the means to assure a successful
recovery of endangered fish in the San Juan Basin. For seven
years, a broad array of tribal, local, state and Federal
entities have worked together to re-operate flows in the San
Juan River to benefit endangered fish. This recovery program is
specifically dependent upon the construction of the three
facilities incorporated in H.R. 3478.
H.R. 3478 relies on nearly two decades of environmental
analysis. The Colorado Ute Tribes have conditioned their
willingness to take a 40 percent reduction in water supplies
proposed in H.R. 3478 on a commitment by Congress that these
amendments will indeed become a final settlement. The Tribes
are unwilling to accept a reduced settlement unless they are
assured that the reduced facilities and depletions can rely on
the existing environmental analysis. Without this protection,
we are afraid that a second decade may pass before the United
States commitments made in 1988 are finally realized.
4. H.R. 3478 Authorizes A Reservoir For Present And Future
Uses.
H.R. 3478 authorizes a 260,000 acre foot reservoir. That
reservoir allows depletions of 57,100 acre feet to be stored.
The reservoir size also assures that as the region's last water
storage facility, it is positioned to provide M&I and
agricultural storage for future generations. While H.R. 3478
does not provide the authority to store additional depletions,
the Endangered Species Act program in the San Juan Basin is
expressly designed to both preserve endangered fish and allow
water development to proceed. This reservoir accomplishes both
of these goals.
The reservoir has an inactive storage elevation which is
designed to (1) allow water to flow back through the conduit
system to satisfy City of Durango M&I needs, (2) allow access
to the La Plata Basin in the event the ESA allows additional
water supplies for irrigation and funding can be secured and
(3) assure that the reservoir establishes a useable and
functioning 1,600 acre recreation lake.
5. The Legacy Fund Is A Wholly Inadequate Alternative.
Alternatives to a reservoir using Animas River water have
been explored for two decades. Opponents of H.R. 3478 have
offered a legacy fund as an alternative. That alternative
proposes giving the two Colorado Ute Tribes a sum of money to
acquire land and direct stream flows from its neighbors. This
alternative--rejected by the Colorado Ute Tribes and the State
of Colorado--pulls the rug out from under the 1986 Water Rights
Settlement Agreement. In that Agreement, irrigators and
communities using direct flow out of the region's rivers were
allowed to continue their historic use of these water supplies,
subject to the Tribes' obtaining some direct flow rights and
the Tribes' securing a new supply of water from the generous
flows of the Animas River.
The Legacy Fund is also problematic because in the absence
of storage, the Tribes will be acquiring a water supply which
frequently exists for only three months a year. Moreover, any
effort to move that direct flow to another location would
trigger extensive Colorado Water Court litigation and raise
serious wetlands and Clean Water Act issues. In a word, the
legacy fund is an effort to ``buy out'' Colorado Ute Tribes and
not to honor the 1986 Settlement Agreement.
6. Pervasive Litigation Involving the United States Is The
Only True Alternative To A Reduced ALP.
All parties to the 1986 Agreement have a good faith
obligation to implement its provisions. If the United States
fails to provide the Colorado Ute Tribes with a reasonable
(even if reduced) assured supply of water, it leaves the Tribes
with no alternative but to pursue litigation.
a. Water Rights Litigation.
In the event there is no reduced ALP, the Tribes and the
United States will have to prosecute reserved rights
adjudications against irrigators and rural communities now
relying upon Animas and La Plata River direct flows. This is a
massive undertaking which is sure to set back regional
integration for decades to come.
b. ESA Litigation.
The Tribes will move with their Colorado partners to
institute litigation designed to assure that all San Juan River
depletions are put in jeopardy (and new ones prohibited) until
the Tribes' depletion supply is secured, and;
c. Bad Faith Contract Litigation.
The Colorado Ute Tribes would pursue breach of trust and bad
faith contract breach claims against the United States for
failure to implement in good faith the 1986 Agreement. While
that Agreement expressly contemplated that Congress might not
implement it, it was always understood that the Departments of
Justice, Interior, OMB and others were under a good faith
obligation to provide the Tribes with a water supply. Indeed a
decade of modest Administration appropriations led the Tribes
to incur significant expenditures of the 1986 Agreement.
7. Conclusion.
The non-Federal parties, including the States of Colorado and New
Mexico, have done their share to ``avoid future controversy'' as
mandated by the 1986 Agreement. It is now time for the Federal parties
to do the same.
______
Statement of Sage Douglas Remington
INTRODUCTION
Mike-Ku, in the native Ute language, I thank you for the
opportunity to testify on H.R. 3478 and H.R. 745. I am the
spokesman for the Southern Ute Grassroots Organization (SUGO),
which is a group of Southern Ute Tribal members who live on the
Southern Ute reservation in Colorado' and who are in support of
H.R. 745 and opposed to H. R. 3478.
History of Grassroots Opposition to Animas-La Plata Water
Project (A-LP).
I have been instructed by the SUGO Elder Council to present
a cultural and spiritual perspective that is in conflict with
the mainstream political and cultural value system. My
colleagues in opposition to the Animas-La Plata Project will
speak about the environmental, taxpayer, and economic concerns
that we all share about ALP.
The roots of SUGO go back to 1989 when a group of concerned
Southern Ute Tribal members formed the TCommittee For Better
Tribal Government. The committee's principal concern was that
the best interests of the majority of Ute people were not being
properly represented in the Animas-La Plata Reclamation Project
(ALP). This group of Southern Ute Tribal members gathered the
necessary signatures to institute a recall election for the
Tribal Council. With some questionable maneuvering, the
incumbents succeeded in disqualifying one recall vote. This
made the election result in a tie. Under the Tribal
Constitution, the tie preserved the status quo. Dissatisfaction
with ALP, abuses of power and lack of responsiveness by the
Tribal Government did not die after the failed recall attempt.
The organizers of the Committee for Better Government proceeded
to form the Southern Ute Grassroots Organization (SUGO).
Ute people have maintained their connection with the land
and water since there were loosely confederated bands of a
people called the ``Nuche.'' We believe that rocks, trees, the
rivers and the Earth are alive. We have lost most of our land
base through violent assault and ``legal'' manipulations that
have separated the Utes from their land and water.
The Ute's share with other traditional tribal people three
primary political principles:
All land, water and other natural resources are communally
owned by the tribe; private ownership of land, water or goods
beyond those of the immediate household is unthinkable.
All tribal decisions are by consensus, in which every tribal
member participates; and,
Traditionally, Tribal Council and leaders are not coercive or
authoritarian, unlike their non-Indian counterparts.
There has never been a general council meeting of the Southern Ute
people dedicated to a discussion about the benefits of the Animas-La
Plata Project. In general council meetings, every adult member of the
tribe is permitted to speak and discussion continues until consensus is
reached. Questions and concerns about this project have gone
unanswered!
Development of the Alternative to the Animas La Plata Project.
In December, 1996, SUGO held a meeting with members of the Southern
Ute tribal membership to discuss an alternative to the Animas-La Plata
Project. It was at this time that the Ute Legacy Land and Water Fund
concept was developed. Ute tribal members who had land assignments and
allotments were asked, ``What would you like to see result from this
project?'' Their responses were unanimous. Ute tribal members wanted to
restore the integrity of the traditional Ute land base with the
purchase of land and water rights on the reservation.
The Ute Legacy Land and Water Fund was introduced at the February,
1997, Romer/Schoettler meeting in Towoac, Colorado, and has been
incorporated into the Citizens Coalition alternative which is one of
the two alternatives being analyzed by the Bureau of Reclamation.
CONCLUSION
It is with a heavy heart that the Southern Ute Grassroots
Organization must declare its support for H.R. 745, a bill that would
deauthorize the old project. This project was never clearly defined in
terms of benefits to the Southern Ute Tribal members. It can never be
constructed as originally planned under the 1986 Settlement Agreement.
H.R. 745 directs the Secretary of Interior to negotiate an
alternative that is consistent with all Federal laws. An alternative to
ALP should provide the full amount of water allocated to the tribes in
the 1986 Settlement Agreement.
I am reminded of a scene that took place here is in Washington,
D.C. on May 2, 1948. The Federal Government forced a strong-arm
settlement on the Mandan, Hidatsa, and Arikara Tribes to make way for
the Garrison Dam on the Fort Berthold Indian Reservation, North Dakota.
This picture illustrates the ``heavy heart'' of George Gillettee,
Chairman of the Fort Berthold Indian Tribal Business Council, as he is
forced to sign an agreement for the dam. This is not how Indian water
projects should continue to develop. The Southern Ute tribal membership
must have a voice in the decision making process of any Animas-La Plata
Water Project. It can be done!
Tuvus-Togoy-Ax!
[GRAPHIC] [TIFF OMITTED] T0754.001
[GRAPHIC] [TIFF OMITTED] T0754.002
[GRAPHIC] [TIFF OMITTED] T0754.003
[GRAPHIC] [TIFF OMITTED] T0754.004
Statement of Jim Isgar, Board Member, The Animas-La Plata Water
Conservancy District
My name is Jim Isgar. I am a member of the Board of
Directors of the Animas-La Plata Water Conservancy District. I
am here today to urge your support for H.R. 3478, the Colorado
Ute Settlement Act Amendments of 1998.
My grandfather came to the San Juan Basin in Southwest
Colorado in the early part of this century to homestead land
which was opened for settlement by the United States government
on what had been the Ute Indian Reservation. My grandfather was
never able to succeed at farming because of a lack of water on
his homestead. As a result, my father and his brothers spent
years working in the hard-rock mines in Silverton, Colorado, in
order to make a living. It was always their dream, however, to
return to farming. My father was eventually able to buy land on
the La Plata River, the same land which I farm today.
In any year, I and my neighbors may or may not make a crop,
depending upon the water supply. That is one of the reasons
why, for so many years, my father and I have joined with our
Ute Indian neighbors to support construction of the Animas-La
Plata Project. The farmers and ranchers of the La Plata River
Basin waited patiently for 30 years after the Animas-La Plata
Project was initially authorized for construction. During this
time, the farm and ranch community missed many opportunities to
investigate and construct other smaller water resource
development storage projects which could have supplied us with
critically needed irrigation water. Many of the farmers and
ranchers in our area, determined to wait for the Animas-La
Plata Project, also missed the opportunity to change their
farming base of operations from the La Plata River to the
Dolores Project area and to purchase land at a reasonable price
in that area. Twenty years ago, dry land in the Dolores Project
area sold for $400 an acre. Today, that land is worth $1,500 an
acre, as irrigated land receiving water from the Dolores
Project.
Unfortunately, the water from the Animas-La Plata Project
which is needed to ensure the health of our agricultural
economy will not be provided by this legislation. The long
delay and eventual elimination of irrigation facilities from
this Project have combined to do a great disservice to the
farmers and ranchers in the La Plata River valley.
Nevertheless, I am here today representing the ranchers and
farmers in our area to request that you pass this legislation
and honor the Federal Government's commitment to the two
Colorado Ute Indian Tribes.
To seek to bring proponents and opponents of the Project
together, the Animas-La Plata Water Conservancy District
participated in the process organized by Colorado Governor Roy
Romer and Lt. Governor Gail Schoettler. As you know, the
Animas-La Plata Project had been stalled for over ten years
because of concerns about the Project's environmental impacts
and its costs. In the Romer/Schoettler Process, we spent 18
months exploring the issues and, after much soul searching and
agonizing, developed what has been popularly referred to as
``Animas-La Plata Lite,'' a much smaller version of the Animas-
La Plata Project. Animas-La Plata Lite not only greatly reduces
the cost of the original Project, but also effectively
eliminates all reasonable environmental concerns.
At the conclusion of the Romer/Schoettler Process, the
farmers and ranchers in Southwest Colorado were devastated. Our
hope of additional irrigation water supplies was defeated,
primarily because of the huge Project cost increases caused by
many years of delay. Delay has been the strategy of the Project
opponents, and they have been very successful. Two years ago,
when the fiscal conservatives in the Congress joined with
national environmental groups, it became apparent that if we
were ever going to have a solution to the rightful reserved
water rights claims of the two Colorado Ute Indian Tribes,
something drastic had to happen with the Animas-La Plata
Project. A/LP Lite is the result.
The farmers and ranchers believe the environmental
organizations have won. The Animas-La Plata Project of our
dreams will not be a reality. Instead of Project depletions of
150,000 acre feet each year, A/LP Lite complies with the
current mandate of the U.S. Fish and Wildlife Service's Final
Biological Opinion for the Project and will deplete no more
than 57,100 acre feet annually. We agreed to this reduction
despite the fact that the State of Colorado is entitled to
150,000 acre feet of depletions under the Colorado River
Compact and the Upper Colorado River Compact, as set aside for
the San Juan Basin of Colorado ever since the 1956 Colorado
River Storage Project Act.
The negotiations to divide up the A/LP Lite water supply of
57,100 acre feet were difficult, in the extreme. You may well
ask, after giving up their irrigation water, why are the
farmers and ranchers still supporting A/LP Lite. The answer is,
we get the right to continue to use, without fear of losing it
to Tribal water claims, the water which my grandfather
appropriated under Colorado state water law 95 years ago. This
is water which, if the Indians' claims are not settled by A/LP
Lite, will be taken away from the ranchers and farmers to
satisfy the Tribes' claims. Because settlement of the Indian
claims is vital to all the ranchers and farmers, we urge you to
move forward with this legislation. The Tribes have agreed to
settle their reserved water rights claims despite the fact that
the water to which they were entitled under the 1988 Settlement
Agreement is cut by two-thirds under A/LP Lite.
The ranchers and farmers also support A/LP Lite because of
the water supply it will make available to the City of Durango,
Colorado. We all recognize that Durango must have a firm water
supply to provide for the needs of our neighbors in the city.
The farmers and ranchers in Southwestern Colorado do not live
in a vacuum. We have a proud record of cooperating with our
``city'' friends, as well our Indian friends. That record of
cooperation has been the strength of the Animas-La Plata
Project.
We are here today to demonstrate our continued support and
cooperation with our friends. We ask you, the members of this
Committee and the Congress, to recognize the many sacrifices
that have been made and the many compromises that have been
struck by Indians and non-Indians alike. The belated opposition
to A/LP Lite by the Clinton Administration should not deter you
from doing what is right. It is right to pass this legislation,
honor your commitment to our Native American friends, and make
that most precious of all resources in the West, water,
available for beneficial use.
------
Statement of Orion Utton, President, Animas River Agricultural Water
Users Association, San Juan County, New Mexico
Mr. Chairman and Committee Members:
I am Orion Utton, President of the Animas River
Agricultural Water Users Association of San Juan County, New
Mexico. I feel honored and privileged to testify before this
Committee in support of H.R. 745 and in opposition to H.R.
3478.
The members of the Animas River Agricultural Water Users
Association are major stakeholders in this Animas-La Plata
issue. The water that would be used in the Animas La Plata
project is the same water that we now use to grow our crops. We
are very concerned that the project will seriously threaten the
water supply that we depend on to grow alfalfa, corn, wheat,
oats, apples and vegetables.
The Bureau of Reclamation documents for the Animas La Plata
project point to 225 cubic feet per second (cfs) of water that
would be allowed to bypass the pumps at Durango during the
summer months. They state that this water would be for the
ecology of the river, but we believe that this may be the only
water that would be by-passed for agricultural users. Project
supporters claim that senior water rights will be protected,
but there is no Bureau of Reclamation documentation as to how
senior water rights will be protected.
I know the ditch system in San Juan County better than
anyone. I served as a County Extension Agent for 20 years.
While employed by the New Mexico State University Extension
Service, I worked extensively on water and ditch system issues.
I also have farmed all my life and own a 45 acre farm.
Attached to my testimony is a document prepared by Dennis
Cooper, a water engineer from Santa Fe. This document
summarizes the adjudicated water rights on the Animas River.
The point of the document is that these ditches have the legal
right to divert a great deal more water than the 225 cfs
described in the Bureau of Reclamation documents for the Animas
La Plata project. That is not enough water to supply legal
diversions for the Animas River irrigators. Every year would be
a dry year for us.
With ALP-Lite we simply do not know how much water we would
get. There have been no studies, so nobody knows. But the real
danger is that ALP-Lite does not deauthorize the full project.
We believe that the scaled down version of the project is quite
simply a ploy to get a foot in the door so that the full scale
project could be built later. There is no other plausible
explanation for the supporters wanting to build an almost full-
sized dam and pumping plant. Our wet water would be turned into
paper water, and you cannot farm with paper water.
A few years ago, 62 percent of the population supported the
Animas La Plata project. But now that we are beginning to
realize what would happen to the Animas River if the project
were built, only 34 percent are in favor. The Animas River
agricultural water users do not want this project.
Please oppose H.R. 3478 and support H.R. 745. This is the
time to deauthorize the Animas La Plata project. Please do not
make it easier to build.
Thank you for the opportunity to testify. I invite you to
ask questions about this issue.
[GRAPHIC] [TIFF OMITTED] T0754.005
Statement of Thomas E. Atcitty, President, the Navajo Nation
My name is Thomas Atcitty. I am the President of the Navajo
Nation, the largest federally recognized Indian tribe, located
in the states of the Arizona, New Mexico, and Utah. By
resolution of the Intergovernmental Relations Committee of the
Navajo Nation Council, I am authorized to appear before you
today to express the support of the Navajo Nation for H.R.
3478, the Colorado Ute Settlement Act Amendments of 1998,
subject to certain conditions. These conditions will require
three minor amendments as described herein.
The Navajo Nation has historically been ambivalent about
the Animas-La Plata Project. On one hand, the Project was
designed to include a supply of municipal drinking water for
Navajo communities in northwest New Mexico. On the other hand,
because Navajo water rights in the San Juan River Basin have
not been quantified, the Navajo Nation has been concerned that
any new water development in the Basin may adversely affect our
water rights or make future Navajo water development more
difficult. We appreciate the difficulty that our sister Ute
Tribes have experienced in getting a reliable supply of water
to meet the needs of future generations of tribal members.
Indeed, the Navajo Nation has experienced its own difficulties
in water development in the Basin.
The Navajo Nation historically confronted this dilemma by
neither supporting nor opposing the Animas-La Project (the
Project), while at the same time, offering support for the
rights secured by our sister Tribes under the Colorado Ute
Indian Water Rights Settlement Act (the Act). H.R. 3478 is
appealing because the smaller project would result in less
water depletions than the fully developed Project while
providing the Utes with the water necessary to settle their
claims. Although the amount of water provided to the Navajo
Nation would also be reduced, we are willing to accept such
reductions provided H.R. 3478 is amended to authorize a
pipeline for the delivery of Project water to the Navajo
Nation.
We also recognize that water development in the San Juan
Basin is tied to the cooperative efforts of the tribes and the
non-lndian water users to recover the endangered fish in the
river. The depletions described in H.R. 3478 are consistent
with that effort and will encourage the continued partnership
between the tribes and the other water users. To ensure that
the New Mexico beneficiaries of the Animas-La Plata Project
continue in this partnership, our support for H.R. 3478 is also
contingent on an amendment that would require any water
developed under permit number 2883, if such permit is
transferred pursuant to section 6(b)(3) of the Act, to be
subject to the same requirements under the Endangered Species
Act that would have been applicable in the absence of such
transfer.
The Navajo Nation has asserted claims to water in the San
Juan River Basin for the Navajo Indian Irrigation Project and
for other purposes. The United States has not yet filed water
rights claims on behalf of the Navajo Nation, nor has the
United States pursued a negotiated settlement of these claims.
As a result, the water rights claims of the Navajo Nation have
not yet been fully adjudicated or quantified. This legislation
is not intended to affect the Navajo claims, and our support
for H.R. 3478 is also contingent on an amendment that would
expressly state that Navajo water rights are not affected by
this legislation.
Finally, I would like to inform you of the settlement
negotiations that have commenced between the Navajo Nation and
the State of New Mexico to quantify Navajo water rights in the
San Juan River Basin in New Mexico. We are hopeful that these
negotiations will result in an agreement that will eventually
be approved by Congress. In anticipation of our own settlement,
we urge on behalf of our Colorado Ute neighbors, your favorable
consideration of H.R. 3478, subject to the conditions I have
described.
We have worked, and will continue to work, with the Ute
Tribes and with the other Project beneficiaries to draft
amendments to the bill consistent with the principles I have
described. The proposed amendments, which are acceptable to all
Project beneficiaries, are attached. Thank you for this
opportunity to express our support for this important bill.
PROPOSED NEW MEXICO-NAVAJO NATION AMENDMENTS TO H.R. 3478
The ALP proponents and the Navajo Nation request that the
following amendments to H.R. 3478 be introduced and enacted.
Sec. 3(c)(i) of H.R. 3478 is amended to read:
(i) New Mexico and Navajo Nation Water Matters
1. Assignment of Water Permit--Upon request of the State
Engineer of the State of New Mexico, the Secretary shall, in a
manner consistent with applicable State law, transfer, without
consideration, to the New Mexico Animas-La Plata Project
beneficiaries or the New Mexico Interstate Stream Commission
any portion of the Department of the Interior's interest in New
Mexico Engineer permit number 2883, dated May 1, 1956, in order
to fulfill the New Mexico purposes of the Animas-La Plata
Project, provided that this permit assignment shall not affect
the application of the Endangered Species Act to the use of the
water.
2. Navajo Nation Municipal Pipeline--After the date of
enactment of the Colorado Ute Settlement Act Amendments of
1998, the Secretary shall provide for the construction of a
water line to augment the existing antiquated system to convey
municipal water supplies of the Navajo Nation from Farmington,
New Mexico, to the Navajo Indian Reservation at Shiprock, New
Mexico. Prior to such construction, the Secretary shall
initiate and complete appropriate environmental compliance with
respect to the Navajo Nation municipal pipeline. Construction
costs allocable to the Navajo Nation for the Navajo Nation
municipal pipeline shall be non-reimbursable.
3. Protection of Navajo Water Claims--Nothing in this Act
shall be construed in any way to quantify or otherwise
adversely affect the water rights and the claims of
entitlements to water of the Navajo Nation.
______
Statement of Gale A. Norton, Attorney General, Colorado
I am sorry that I am unable to be here in person to testify
today, but I appreciate this opportunity to express my support
for H.R. 3478 and my opposition to H.R. 745. It seems fitting
that this Committee is considering these two bills at the same
time. H.R. 745 was introduced last year largely because of
concerns about the high cost of building the Animas-La Plata
Project. The project proponents responded to those concerns.
The result is H.R. 3478, which drastically reduces the size and
cost of the project.
I am particularly disappointed in the Administration's
failure to support H.R. 3478. Interior and EPA both have
studied the Animas-La Plata Project intensively and
participated fully in the Romer-Schoettler process to evaluate
alternatives. They say that the project proponents' compromise
isn't good enough, but they have never said what they do want
or offered an alternative. Perhaps most frustrating, they use
the Tribes' good faith compromises, such as agreeing to forego
water delivery facilities, as an excuse to further delay
meeting the Federal commitment to the Tribes.
H.R. 3478 implements an agreement among the Southern Ute
and Ute Mountain Ute Tribes, the Navajo Nation, and water users
in Colorado and New Mexico to build a modified Animas-La Plata
Project that will satisfy the Ute Tribes' reserved water rights
claims for about one-third the cost to Federal taxpayers of the
original project. This legislation responds to previous fiscal
and environmental criticisms of the original project, as
reflected in H.R. 745; provides for state and local cost-
sharing; and recognizes that the responsible Federal agencies
have fully complied with the Endangered Species Act, the
National Environmental Policy Act, and the Clean Water Act.
Most importantly, however, H.R. 3478 is acceptable to the Ute
Tribes as a final settlement of their legal claims to water
from the Animas and La Plata Rivers. If H.R. 3478 is not
enacted, the State of Colorado, the United States, the Ute
Tribes, and southwest Colorado water users appear destined for
years of expensive and acrimonious litigation.
The Animas-La Plata Project's primary purpose is to settle
litigation by the United States asserting reserved water rights
on behalf of the Southern Ute and Ute Mountain Ute Tribes. Over
a decade ago, both the United States and the State of Colorado
made a solemn commitment to the Tribes to build the project so
that the Tribes would have water to meet their needs. The
Tribes have rejected all proposals to give them money instead
of water, and decades of studies have shown that this project
is the only feasible way to provide that water. H.R. 3478
allocates to the Ute Tribes almost two-thirds of the depletions
presently allowed by the U.S. Fish and Wildlife Service's
biological opinion for the project, issued under section 7 of
the Endangered Species Act.
It is important to understand the history of the Federal
and State of Colorado commitments to build Animas-La Plata. In
Winters v. United States, 207 U.S. 564 (1908), the U.S. Supreme
Court held that when the United States enters into a treaty
with an Indian tribe creating a reservation, it impliedly
reserves sufficient water to irrigate the reservation lands.
These reserved water rights have a priority date based on the
date of the creation of the reservation, which makes them
senior to non-Indian water rights appropriated after the
reservation was created. Based on the Winters doctrine, in
1976, the United States Department of Justice filed re-
served water right claims in Colorado water court\1\ on behalf
of the Ute Tribes. The original Ute Reservation was established
by treaty in 1868 (with some later additions), making the
claimed rights the most senior rights on the river.\2\ Thus, if
successful, the Tribal claims would have preempted the vested
water rights of non Indian water users. In the more water-short
river basins, such as the La Plata River basin, the claims had
the potential to exceed the entire available water supply,
thereby drying up family farms and ranches that have existed
for generations and wreaking havoc on local economies.
---------------------------------------------------------------------------
\1\ The Department of Justice originally filed the claims in
Federal District Court in 1972. The United States Supreme Court ruled
that, under the McCarran Amendment, 43 U.S.C. Sec. 666, the case should
be heard in state court. Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800 (1976).
\2\ The United States actually claimed a priority date of time
immemorial for the original reservation, but an 1868 priority would
have the same practical effect.
---------------------------------------------------------------------------
As the parties began preparing for trial, it became clear
that there were many contested issues, including the priority
dates of the claimed rights, the amounts of water to which the
Tribes were entitled,\3\ the purposes for which the water could
be used, whether the water could be used off the reservations,
and how and by whom the rights would be administered.\4\ Rather
than pursuing lengthy, costly, and hostile litigation, all the
parties sat down together and, after years of negotiation,
entered into the Colorado Ute Indian Water Rights Final
Settlement Agreement in 1986. Two years later, Congress passed
the Colorado Ute Indian Water Rights Settlement Act of 1988,
Public Law 100-585, and President Reagan signed it, affirming
the Federal commitment to build Animas-La Plata. In 1991, the
Colorado water court entered consent decrees based on the
Settlement Agreement and passage of the Settlement Act and
necessary state legislation. However, compliance with
environmental statutes and questions about the project's cost
delayed construction.
---------------------------------------------------------------------------
\3\ Indian reserved rights are generally quantified on the basis of
``practicably irrigable acreage.'' Arizona v. California, 373 U.S. 546,
598-601 (1963). This number was very much in dispute.
\4\ Some have suggested that these are simple issues and that the
State and water users would, in fact, easily prevail in litigate. These
critics of the settlement point to legal arguments that the State could
and probably would make if forced to litigate. However, they fail to
fully understand or appreciate the Tribes' counter-arguments. I have
reviewed the arguments on both sides and assure you that the battle
would be hard-fought and the outcome far from certain.
---------------------------------------------------------------------------
Thus, ten years after passage of the Settlement Act, the
United States still has not kept its promise to build this
project.
In an effort to break the stalemate, project proponents
entered into discussions with project opponents under the
auspices of Colorado's governor and lieutenant governor. After
meeting many times and consulting with Federal agencies, each
side put forward a proposal. The opponents' proposal relied
primarily on the payment of money, which was not acceptable to
the Ute Tribes. The proponents, however, negotiated among
themselves, with the Tribes and water users all making major
concessions, to arrive at the proposal for a smaller, less
expensive project that forms the basis for H.R. 3478. The
project beneficiaries divided the 57,100 acre-feet of
depletions allowed by the biological opinion, and allocated
most of the project water to the Ute Tribes, with other water
users in Colorado and New Mexico, including the Navajo Nation,
receiving a smaller share. Sec. 3(a). Irrigated agriculture
took the biggest hit; about 48,OOO acre-feet are allocated to
Indian and non-Indian municipal and industrial uses, Sec. 3(a),
while the Secretary is authorized to allocate an additional
6,010 acre-feet for irrigation, Sec. 3(b). The Act does not
include any facilities to deliver water to the La Plata basin,
but non-Indian farmers and ranchers in that basin benefit from
H.R. 3478 because it protects their existing water rights by
finally removing the threat that has hung over their heads all
these years. Sec. 3(c).
Some project opponents question the Ute Tribes' decision to
insist that the United States live up to its part of the
bargain and build a real reservoir that holds real water rather
than giving them money to buy water rights. These groups
presume to tell the Tribes that they are making a bad deal
because the modified project does not include water delivery
facilities. Certainly the Tribes would prefer to have delivery
facilities included in the project, as they should be under the
Settlement Agreement and 1988 Act, but they elected to
sacrifice those facilities in order to secure water in storage
that they can use on or off the reservations, consistent with
the water marketing provisions of the Settlement Agreement and
the 1988 Act, which remain unchanged. Project opponents fail to
respect the Tribes' long struggle to secure water for their
future. Instead, they seek to penalize the Tribes for
compromising, and to force them to take money in place of the
water to which they are entitled.
Project opponents also argue that H.R. 3478 exempts the
Animas-La Plata Project from environmental compliance. That is
absolutely not true. Rather, the Act recognizes that there has
already been full compliance with the Endangered Species Act,
the National Environmental Policy Act, and the Clean Water Act.
Sec. 3(c). Animas-La Plata may well be the most thoroughly
studied, modified, and mitigated water project in history. In
fact, the high pumping costs about which its opponents complain
are the result of the original, environmentally sensitive
siting decision to build the reservoir off-channel, rather than
in the Animas Gorge. Federal agencies and environmental groups
who will be satisfied with nothing less than complete
abandonment of the project seek to use environmental laws to
literally study the project to death. H.R. 3478 simply says
``enough is enough.'' \5\
---------------------------------------------------------------------------
\5\ Section 3(c) only applies to the facilities and depletions
described in H.R. 3478. Should the Fish and Wildlife Service ever
increase the ceiling on project depletions, any expansion would require
additional environmental compliance.
---------------------------------------------------------------------------
Construction of the Animas-La Plata Project, as modified,
remains essential to the settlement. Under the Settlement
Agreement, if key portions of the project are not completed by
January 1, 2000, the Ute Tribes have until January 1, 2005 to
elect whether to go back to water court to pursue their
original claims in the Animas and La Plata Rivers. If
construction is well under way by then, I am confident that the
Tribes will not pursue that option. However, unless Congress
takes prompt and decisive action to end what has become an
administrative nightmare and meet the Federal Government's
commitment to the Tribes, I fear they will look to the courts
for relief.
Reopening of the Ute Tribes' claims would trigger
litigation among the Tribes, the United States, the State of
Colorado, and water right holders, as well as renewed
uncertainty regarding the use and value of existing water
rights. As discussed above, the Tribes' reserved rights claims
raise a number of complex legal and factual issues and threaten
the livelihoods of farmers and ranchers who rely on the already
water-short La Plata River. Such litigation would involve
virtually all water users in the Animas and La Plata basins,
take many years of trial and appeals, cost millions of Federal,
state, and local taxpayer dollars, and undo decades of
cooperation between Indians and non-Indians in southwest
Colorado.
I do not exaggerate. The Big Horn River adjudication in
Wyoming, which litigated the reserved right claims for the Wind
River Indian Reservation, began in 1977 and was decided by the
Wyoming Supreme Court for the first time in 1988. In re General
Adjudication of All Rights to Use Water in the Big Horn River
System, 753 P.2d 76 (Wyo. 1988). The case then went to the U.S.
Supreme Court. Wyoming v. United States, 492 U.S. 406 (1989).
Since then, the case has been to the Wyoming Supreme Court four
more times. In re General Adjudication of All Rights to Use
Water in the Big Horn River System, 803 P.2d 61 (Wyo. 1990);
835 P.2d 273 (Wyo. 1992); Docket Nos. 93-48 & 93-49 (Oct. 26,
1993) (unreported order dismissing appeal); 899 P.2d 848 (Wyo.
1995). Nor have the issues been finally resolved. There is
presently a proceeding underway to resolve disputes over
quantification of private rights derived from tribal lands. All
told, the State of Wyoming and the United States have spent
tens of millions of dollars litigating the Wind River
Reservation claims for more than twenty years, and the result
is continuing conflict.
While I obviously cannot discuss the State of Colorado's
possible defenses to the Tribes' claims, or the likely outcome
of the litigation (other than to say that the issues are
complex and would be hard-fought), one thing is certain: there
will be a big loser, whether it is the Tribes or the water
users, and, ultimately, the entire region will suffer. H.R.
3478 is the right thing to do. The Act meets the United States'
trust obligations to the Ute Tribes and protects the existing
property rights of all water users in the Animas and La Plata
basins in Colorado in a way that is fiscally and
environmentally responsible. I fully support it and urge you to
do likewise.
------
Statement of Charles Blassingame, Board Member, La Plata Conservancy
District, La Plata, New Mexico
Mr. Chairman and members of the Subcommittee, Thank you for
the opportunity to support H.R. 3478, the Colorado Ute
Settlement Act Amendments of 1998. I want to explain why this
legislation in critical to me. It is critical even though the
Revised Animas-La Plata Project outlined in the legislation
significantly cuts the amount of depletions's New Mexico
Irrigators have counted on since 1968 from the authorized, full
sized Animas-La Plata Project.
The settlement of Ute Indian water claims provided by this
legislation protects the water rights I currently own and use.
Without the settlement of Indian water claims, those rights are
in jeopardy. That is why we were willing to agree to the
drastic reductions in water depletion's and the total
elimination of irrigation facilities proposed in this
legislation. The New Mexico Irrigators anticipated about 15,000
acre-feet per year of new water from the full Animas-La Plata
Project, along with the delivery system to move the water from
the Animas River to our La Plata River Valley. We intended to
use this new water to allow us to grow more and higher value
crops on our fertile land.
Irrigators on the La Plata River know the importance of
water. The majority of La Plata water flows are in April, May,
and June. By the last of June we are cutting water according to
Priority. Since 1922, New Mexico and Colorado Irrigators have
shared La Plata water through the La Plata River Compact 37-63-
101. The Compact provides for equitable distribution of the
water of the La Plata River and to remove all causes of present
and future controversy between the State of Colorado and New
Mexico over La Plata river water. Failure to settle the Ute
Indian water claims as proposed in H.R. 3478 puts this
cooperation in jeopardy, as the Ute Tribes will be forced to
re-assert their claims to all the water in the La Plata and
Animas river.
The La Plata Conservancy District has cooperated with the
Ute Mountain Ute Tribe, Southern Ute Tribe, Navajo Nation, San
Juan Water Commission, Southwestern Water Conservancy District
and the Animas-La Plata Water Conservancy District to agree to
only 780 Acre-feet per year of depletions, or less than 10
percent of our promised water. I believe this spirit of
cooperation is unusual in the unity all have expressed in
coming to a workable alternative to the original ALP.
As truck load after truck load of hay passes through La
Plata from the Dolores River Project on the way to dairy farms
in Southern New Mexico, Texas and Mexico, we can only dream of
what we thought we were to receive in the Animas-La Plata
Project in 1968.
H.R. 3478 allows us to maintain our historic water rights.
Please support H.R. 3478, the Colorado Ute Settlement Act
Amendments of 1998.
Thank you.
------
Statement of Richard K. (Mike) Griswold, Board Member, The Animas-La
Plata Water Conservancy District
My name is Mike Griswold. I have been a member of the Board
of Directors of the Animas La Plata Water Conservancy District
for four years. Before my retirement, I worked for the U.S.
Forest Service, the National Park Service and Congressional
staffs for over 30 years.
The history of the Animas-La Plata Project is a history of
compromise and cooperation. The non-Indian water users who were
to receive irrigation water from the Project have compromised
to the point that only critically needed municipal water
supplies are left in the Project for the beneficial use of non-
Indian water users in Southwestern Colorado. Because national
environmental organizations have been successful in delaying
the Project, the irrigation of new croplands, a long held dream
of farmers and ranchers in Southwestern Colorado, has
disappeared. National environmental organizations have
gleefully destroyed the dream of new water storage so vitally
needed in our area and offer instead the redistribution of an
already short supply of water.
I would now like to address, for the information of the
Committee, a few of the many untruths that national
environmental organizations continue to tell about the Project.
1. National wildlife organizations state that A/LP Lite
still harms the environment and ``. . . would adversely affect
a gold medal trout fishery.'' The trout fishery on the Animas
River, a stocked fishery, received a gold medal designation
because of the support of the Southwestern Water Conservation
District. The District contracted for a fishery biologist to
evaluate the designation. The biologist's findings indicated
that neither the water project nor designation would adversely
impact the other. Therefore, the proponents of the Animas-La
Plata Project favorably recommended the gold medal designation.
2. Environmentalists say ``Animas-La Plata Lite would
adversely affect an Olympic whitewater training site.'' The
referenced whitewater park, however, lies entirely upstream
from the passive intake for the pumping station of the Project.
To our knowledge, there is no official ``Olympic training
site'' on the entire Animas River.
3. Environmentalists say A/LP Lite ``would . . . adversely
impact . . . endangered fish species.'' The U.S. Fish and
Wildlife Service's Final Biological Opinion for the Animas-La
Plata Project, which limits Project depletions to 57,1000 acre
feet annu-
ally, states that the Project, with only that amount of
depletions, would have no adverse impact upon the endangered
fish. Furthermore, because of the Project, the San Juan River
Recovery Implementation Program was established eight years ago
and is actively attempting to recover the endangered fish.
4. Environmentalists say the Project would ``inundate
Colorado's Bodo Wildlife Area, wintering habitat for the
state's second largest elk herd.'' In reality, the Project
would inundate only a small fraction of the Bodo Wildlife Area,
with mitigation land to be purchased as part of the Project.
The elk herd, which is not even the second largest band of elk
in La Plata County, Colorado, much less in the state of
Colorado, utilizes the Bodo area only during a short portion
oftheir migration each year.
5. Environmentalists completely misstate the alleged Bureau
of Reclamation's admission that the Project would return ``just
36 cents for each taxpayer dollar spent.'' The
environmentalists fail to mention that the Bureau of
Reclamation, on the very same page of its Economic Analysis
Summary, states that the benefit/cost ratio for the Project
varies between a low of 36/dollar to a high of $1.41/dollar,
depending upon the analysis process used and the rates of
interest assumed in the evaluations. Furthermore, the economic
analysis process used by the Bureau of Reclamation charged
costs to the Project, including a reduction in revenues from
power generation at Glen Canyon Dam and salinity costs on the
Colorado River, which have never before been charged to any
Bureau of Reclamation project.
6. The environmentalists say ``the Citizen's Coalition and
the Southern Ute Grassroots Organization have developed an
alternative which would provide the full amount of water in the
Settlement Agreement and allow the Tribes to develop it where
it is needed.'' This alternative, known as the SUGO Legacy
Fund, was carefully considered and vehemently rejected by the
Tribal Councils of both the Southern Ute Indian Tribe and the
Ute Mountain Ute Tribe. The so-called Legacy Fund was rejected
primarily because it would not provide the Tribes the full
amount of stored municipal and industrial water in the
Settlement Agreement. In fact, the Fund would not provide any
stored water. It would provide the Tribes only with money to
buy land and irrigation water from their neighbors and friends,
which the Tribes would then be required to change to municipal
and industrial use in protracted litigation in Colorado State
Water Court; Without a storage reservoir, the Legacy scheme is
a redistribution of an existing water shortage.
7. Finally, environmental organizations claim that this
legislation exempts A/LP Lite from ``. . . The Clean Water Act,
The Endangered Species Act, and the National Environmental
Policy Act.'' The legislation, however, states only that the
massive environmental documents already provided for the
Animas-La Plata Project, at a cost of over $20 million, have
satisfied the requirements of those Acts. The legislation reads
as follows: ``the April 1996 Final Supplement to the Final
Environmental Impact Statement-Animas-La Plata Project issued
by the Department of the Interior and all documents
incorporated therein and attachments thereto and the February
19, 1996 Final Biological Opinion of the United States Fish and
Wildlife Service-Animas-La Plata Project shall be considered to
be adequate to satisfy any application under . . . the ESA,
NEPA or Federal Water Pollution Control Act.'' This is not a
waiver. The Congress is only being asked to acknowledge that
enough is enough--$20 million of environmental studies are
adequate to construct this greatly reduced version of the
authorized Project.
These are only a few examples of the false statements the
environmentalists are making in seeking to defeat H.R. 3478.
H.R. 3478 exemplifies a spirit of cooperation and agreement
between the Indian and non-Indians in this resolution of the
reserved water rights claims of the two Colorado Ute Indian
Tribes. It was agonizing for my farmer and rancher friends to
give up their irrigation water in limiting the Project to
depletions of 57,000. We are here, however, to ask you to
support the fulfillment of the government's trust obligation to
the Tribes and its obligations to the Tribes' non-Indian
friends and neighbors.
------
Statement of Fred V. Kroeger, President, Southwestern Water
Conservation District
My name is Fred Kroeger. I am President of the Board of
Directors of the Southwestern Water Conservation District of
Colorado and a member of the Board of Directors of the Animas-
La Plata Water Conservancy District. I was a member of the
Colorado Water Conservation Board for 21 years. I am submitting
this written statement in support of passage of H.R. 3478.
I regret that I am not able to personally attend the
hearing today. My absence will break my record of appearances
before Committees of the Congress in support of the Animas-La
Plata Project. I first appeared before the Committees which
were considering the legislation which eventually became the
Colorado River Basin Project Act of 1968. As you will recall,
the Basin Project Act authorized for concurrent construction
the Central Arizona Project, together with five water resource
development projects in Southwestern Colorado. That, of course,
has not happened. While the Central Arizona Project has been
completed, only two of the five Colorado projects have been
constructed: the Dallas and the Dolores Projects. The only
other project of the five that has received active
consideration in the past 15 years is the Animas-La Plata
Project.
In the early 1970's I first testified on behalf of
construction funds for the Dallas and Dolores Projects and
planning funds to complete the Animas-La Plata Projects
Definite Plan Report and Environmental Impact Statement. Upon
completion of those documents in 1980, I, as well as many of my
constituents, were convinced that the Project would be under
construction shortly thereafter. Unfortunately, continuous,
detrimental delays have driven up the cost of the Project as
first envisioned and proponents have been forced once again to
accept a compromise which greatly reduces the benefits to our
citizens.
Despite this loss to farmers and ranchers, I am here today
to urge your support for H.R. 3478, the Colorado Ute Settlement
Act Amendments of 1998. This legislation will settle the
reserved water rights claims of the two Colorado Ute Indian
Tribes in southwestern Colorado once and for all. The
settlement legislation represents the final compromise in our
decades-long effort to resolve the Tribes' claims by
negotiation, instead of litigation.
I am also here today to strongly oppose H.R. 475,
legislation which has been introduced to deauthorize the
Animas-La Plata Project. Passage of that legislation would be a
breach of faith and a breach of trust not only to the two
Colorado Ute Indian Tribes, but also to the non-Indian water
users and municipalities of Southwestern Colorado and
Northwestern New Mexico. H.R. 475 is an outrageous proposal.
Passage of that legislation would say ``Congress does not care
that Congress passed the Ute Water Rights Settlement Act in
1988, that the President of the United States signed the Act in
1988. We are going to turn our back on that legislation and
demand everybody begin all over again.'' ``Blood, sweat and
tears'' have been put into the effort to settle the legitimate
Indian reserved water right claims in Southwestern Colorado and
at the same time provide a critically needed water supply for
our area, water which we in the West must have if our part of
the country is going to prosper in the future. Such a message
from Congress would be a death knell for all other Indian water
rights settlements now being negotiated.
The history of the Animas-La Plata Project is a history of
compromise. Together, the two Colorado Ute Tribes and non-
Indian water users have strived to achieve a resolution of the
Tribes' reserved water rights claims in a positive manner for
all in the community. The farmers and ranchers whom I represent
here today have compromised more and given up more than any
other group in their efforts to solve the Tribes' claims. The
cooperation between the two Indian tribes and the non-Indian
water users in the San Juan Basin for more than three decades
speaks to the mutual respect of those friends and neighbors.
Two outstanding examples of the spirit of cooperation to
achieve a win-win situation are the Animas-La Plata Project
cost-sharing agreement of 1985 and the 1986 tribal water rights
settlement agreement. In the cost-sharing agreement, the State
of Colorado and local water users committed more than $60
million toward the resolution of the Ute Indian water claims.
The key ingredient of the 1986 Settlement Agreement is new
water storage: the Ridges Basin Reservoir of the Animas-La
Plata Project. If the Ute Indian Tribes were to receive the
water to which they are legally entitled without the
construction of new storage, non-Indian farmers who have been
utilizing that water for more than 95 years would be deprived
of their water supply and the non-Indian agricultural economy
in southwestern Colorado and northwestern New Mexico would be
destroyed. The Tribes and their neighbors are solidly committed
to a solution which does not rob Peter to pay Paul. H.R. 3478
is that solution despite the sacrifices it requires.
Project supporters thought that with the passage of the
1988 Colorado Ute Indian Water Rights Settlement Act, Project
construction would be forthcoming. However, ten years after
passage of that landmark legislation, which was widely
recognized as a model for the settlement of Indian water rights
claims, the Project is still not under construction. Project
opponents, without a personal stake in the settlement of the
Tribes' rights, have delayed the construction of the Animas-La
Plata Project. Those delays drove up the cost of the original
project to the point that the water users and the Tribes were
required to make further compromises and sacrifices.
We are before you now with the results of those compromises
and sacrifices, about which nobody is happy, but which everyone
recognizes are necessary for securing the new stored water so
vital for all the water users in the San Juan Basin. Instead of
a project to provide 150,000 acre-feet of water depletions in
our area, we now have a project which complies with the
Endangered Species Act and limits our depletions of water to
57,100 acre-feet of water per year. To divide that limited
water supply among the beneficiaries of the Animas-La Plata
Project was a difficult, heart-wrenching process.
Under the compromise before you, the two Ute Indian Tribes
will not receive all of the water they were promised in 1988,
but the cost to the Tribes will be limited to the cost of
Project operations and maintenance. The non-Indian farmers and
ranchers will not receive the benefits they were first promised
in 1956, subsequently in 1968, and again in 1988. The non-
Indian farmers and ranchers have agreed to relinquish all of
the irrigation water and facilities which for so many years
were a central feature of the Animas-La Plata Project. While
irrigation may not now be popular, it is vital. Nevertheless,
the non-Indian ranchers and farmers recognized that under the
current political atmosphere it would not be possible to
proceed with the Animas-La Plata Project as approved in 1988.
Then why do the non-Indian ranchers and farmers support the
proposed legislation? First and foremost, the two Colorado Ute
Tribes have agreed that the modified Animas-La Plata Project
will settle all of their reserved water rights claims in the
San Juan Basin. This removes any remaining threat to the non-
Indian water users in our area; i.e. the proposed legislation
settles the Tribes' claims in a way that avoids the Tribes
taking any water away from their non-Indian friends and
neighbors. Secondly, the legislation will provide a much needed
domestic supply of water for the growing communities in
Colorado, including the City of Durango, and communities in
northwestern New Mexico. Finally, the legislation respects the
Federal Government's trust obligation to the Tribes.
I anticipated that the opponents of the Animas-La Plata
Project would throw up their hands and declare victory over the
scaled-back Animas-La Plata Project. Despite the major
concessions agreed to by proponents of the Animas-La Plata
Project, that is not the case. The opponents would have the
Federal Government continue to conduct repetitious
environmental studies, studies which have already
conservatively cost tens of millions of dollars. The opponents,
claiming to be friends of the Ute Indian Tribes, have
threatened to litigate the Animas-La Plata Project for the next
forty years.
The proponents of the Animas-La Plata Project have worked
long and hard to avoid the bitter and divisive court action
that will result unless additional water storage is available
for the Ute Indian tribes and our communities. The Project has
undergone agonizing environmental examination and repeated
consultations under the Endangered Species Act. Despite all the
delays and modifications, the Project continues to have broad-
based bipartisan support from local and state officials. Your
passage of this legislation will enable us to proceed with
construction of the Project and to finally settle the Indian
water rights claims. Construction of the Project is the only
fair and equitable way to settle the Tribes' claims without
ripping apart the cultural and economic fabric of our region.
------
Statement of Chairman Joseph A. Pakootas, Colville Business Council,
Confederated Tribes of the Colville Indian Reservation
The Colville Confederated Tribes would like to present the
following testimony into the record before the House of
Representatives on Bill H.R. 3987, the Deer and Elk Protection
Act.
The Colville Tribes are strongly opposed to H.R. 3987 which
is a divisive piece of legislation and a blatant attempt to
undermine tribal sovereignty. If passed, it would violate
numerous laws, endanger the health of deer and elk, and
undermine existing successful efforts by tribes and states to
cooperatively solve resource and wildlife issues.
Our testimony today centers around three main points. One,
the Colville Tribes have a long-standing federally recognized
right to hunt off of the Colville reservation. Two, the
language of this bill would abrogate this right to hunt off of
the Colville reservation. The reasons why this right should not
be abrogated are numerous and will be specifically detailed
below.
Three, the findings contained in the bill are false and
inaccurate.
Indian hunting rights, whether on or off reservation, have
long been recognized as distinct tribal property rights
stemming from the ``reserved rights doctrine.'' In the specific
case of the Colville Tribes, the right to hunt off reservation
centers around use of the North Half reservation territory and
the express retention of the right to hunt in the North Half
contained in Article 6 (six) of the 1891 agreement between the
Colville Tribes and the Federal Government.
The original reservation of the Colville Tribes was
significantly reduced through an agreement with the Federal
Government in 1891. According to the terms of this agreement,
the 1.5 million acre ``North Half'' of the Colville Tribes'
reservation was granted to the Federal Government, consistent
with certain limitations. Prominent among these was the
explicit language in Article 6 (six) of the agreement that
``the right to hunt and fish in common with all other persons
on lands not allotted to said Indians shall not be taken away
or in anywise abridged.''
This agreement was approved by Congress through a series of
statutes in 1892 and 1906 through 1911. Additionally, the
Colville Tribes' off reservation hunting rights on the
territory of the North Half were directly reaffirmed by the
Supreme Court in the case of Antoine v. Washington. As stated
by the Supreme Court, the Congressional ratification of the
North Half agreement made its provisions the supreme law of the
land, and as such precluded the application of State game laws
through the force of the supremacy clause of the United States
Constitution. Thus, Congressional statutory authorization of
the North Half agreement and its provision granting the
Colvilles' right to hunt off reservation in the North Half
coupled with the subsequent Antoine decision establish an
explicit off reservation hunting right for the Colville Tribes.
Regardless of the source and extent of the tribal right to
hunt off-reservation, any abridgement of this property right
would constitute a ``taking'' under the Fifth Amendment of the
Constitution. As the United States Supreme Court recognized in
its 1968 decision in Menominee, the Congressional abrogation of
a tribe's right to hunt would give rise to a Fifth Amendment
taking.
In regards to the compensation needed to ``take'' the
Colvilles' right to hunt in the North Half, a cursory look at
the details of the 1891 agreement point to a figure that would
be staggering, even for the budget parameters of an entity as
large as the Federal Government. According to the 1891
agreement, the Colville Tribes granted to the Federal
Government 1.5 million acres for the mere price of one dollar
per acre, coupled with the right to hunt and fish in the
territory of the North Half, unabridged in any way, for
perpetuity. Considering the loss of mere timber, mineral, and
other resource extraction commodities, the price of one dollar
per acre is absurdly inadequate. Add to this the loss of
roughly fifty percent of the tribal reservation land base, and
the value of hunting and fishing in Colville tribal culture and
it is quickly apparent that the greatest benefit of the 1891
agreement from the tribal perspective was the retainment of the
right to hunt and fish in the North Half. Thus, the amount of
compensation needed to be appropriated from the Federal budget
for the taking of the Colville Tribes's off-reservation hunting
right in the North Half, coupled with the necessary
compensation for the taking of all other Washington tribes
reserved right to hunt would dwarf any perceived benefit from
H.R. 3987.
That the language of H.R. 3987 would be an abridgement and
complete taking of the Colvilles' right to hunt off reservation
cannot be denied. Under the language of the bill, Colville
tribal members hunting rights would be qualified by the State
of Washington by requiring Colville tribal members to comply
without their consent with any State law governing non-Indian
hunters, including such items as time of hunting season, bag
limits, and licensing requirements. Previous ``right to hunt''
language reserving to Indians in an area ceded to the United
States ``the right of taking fish at all usual and accustomed
places, in common with citizens of the Territory'' and ``[t]he
right of taking fish, at all usual and accustomed grounds and
stations, is further secured to said Indians, in common with
all citizens of the Territory . . .'' has been held by the
Supreme Court to prohibit qualification by the State. In the
specific case of the Colville Tribes and the right to hunt
contained in the 1891 agreement, Article 6 presents an even
stronger case since Congress' ratification of it included the
flat prohibition that the right ``shall not be taken away or in
anywise abridged'' (emphasis added). Thus, while holding no
comment on the amount or type of qualification prohibited by
other ``right to hunt'' language, the Colville ``right to
hunt'' language contained in Article 6 clearly prohibits any
State qualification.
Viewed conversely, to hold as H.R. 3987 proposes that
Indians who are beneficiaries of the reserved hunting rights of
treaty and other Federal agreements are subject to the same
regulations and prohibitions as the State may impose on non-
Indians, is to hold that Congress and the Federal Government
preserved nothing which the Indians would not have had without
such legislation. Such a finding would not only defy any
logical interpretation of a negotiated, bargained agreement
between tribes and the Federal Government regarding the ceding
of land, but would also violate long standing judicial holdings
on the interpretation of treaties and Federal-tribal
agreements. Thus, the canons of treaty construction, coupled
with the ju-
dicial recognition of the unqualified purity of the Colvilles'
right to hunt, dictate that H.R. 3987 be analyzed as an
abrogation and taking of Colville tribal property rights.
In addition to previous points, H.R. 3987 should be
rejected due to the false and incorrect findings contained
within the language of the bill. Any legislation, regardless of
subject matter or interest groups affected, that is based upon
inaccuracies of this size and scope must be discarded as
inherently flawed. A technical analysis of these findings is
attached for your review.
Technical Analysis of the Findings in H.R. 3987 The
proposed legislation is inherently flawed because the findings
upon which it is based are false and therefore incorrect. The
first finding states that ``dramatic economic changes have
taken place in the State of Washington since Indian tribes
signed treaties with the Federal Government and, as a result of
those changes, Indians and Indian tribes in the State of
Washington no longer rely on hunting deer and elk for
subsistence.''
We agree that dramatic changes, economic and otherwise,
have occurred in Washington State since the mid-1800s. Indians
in Washington are well aware of these changes. Prior to treaty
signings, we lived our traditional ways on the lands and waters
of our ancestors. By the turn of the century, we had all been
put on reservations. At present, we are striving to retain our
cultural and spiritual identity while adapting to the complex
backdrop of a modern world.
These are indeed dramatic changes.
We do not agree, however, that Indian people no longer rely
on deer and elk for subsistence as a result of such changes. In
fact, this statement could not be further from the truth. The
referenced economic changes have not ``floated all boats
equally'' and unemployment on the Colville Reservation remains
exponentially higher than non-reservation communities. In
addition, many Colville tribal members who are employed do not
make incomes that permit good acquisition on a regular basis
from a grocery store. The proposed legislation implies that all
or most Indians now have the means to purchase all their food.
This is simply not true.
Diet supplementation with wild game is absolutely essential
for many Colville families. Year in, year out, many of our
people depend on deer and elk taken on the North Half.
In addition to playing an essential role in providing
general dietary sustenance, deer and elk are also traditional
cultural and religious foods of the Colville Tribes. The use of
deer and elk meat is absolutely essential to many religious
ceremonies of the Colville Tribes, while body parts such as
hides, antlers, bones, and hooves have important ceremonial
uses also. Further, many religious ceremonies of the Colville
Tribes require relatively immediate access to deer and elk meat
and body parts. Any application of State hunting law which
would infringe upon these religious tenets of the Colville
Tribes would be subject to First Amendment and Indian religious
freedom protection.
The second finding of the bill states that ``the consistent
enforcement of laws and regulations pertaining to hunting deer
and elk throughout the State of Washington on all lands outside
of Indian reservations is necessary for the conservation of
deer and elk and to protect public safety.'' This statement is
true in principal but not in substance. It implies that State
of Washington rules are the only ones that can be consistent.
This is not true. Indian Tribes also believe in and practice
``the consistent enforcement'' of their laws.
The second finding is also not substantiated by harvest
statistics or other related facts.
Human predation is typically the most significant direct
form of mortality on ungulate populations, particularly in
modern times. To combat this, conservation measures such as bag
limits are often necessary to maintain herds. H.R. 3987 implies
that tribal seasons are excessive and threaten herd
sustainability statewide. Data clearly show, however, that the
greatest pressure on Washington deer and elk populations is
non-Indian harvest, not tribal harvest. In fact, the non-
Indian, state harvest typically exceeds tribal harvest by
several orders of magnitude.
Estimates of statewide deer harvest from 1988-1995 provided
by the Washington Department of Fish and Wildlife show that
tribal harvest constituted a mere 3.5 percent of the total
combined tribal and non-tribal harvest. As examples, in 1995,
Washington State non-Indian hunters took 37,765 deer while
tribal hunters took 1,740. Over the entire eight year period
(1988-95), state hunters harvested 376,160 deer and tribal
hunters harvested 12,996. An identical situation exists with
the statewide elk harvest. From 1988-1995, the tribal harvest
made up 3.6 percent of the total combined harvest. In 1995,
state hunters took 6,429 elk while tribal hunters took 286.
Over the eight year period, the state harvest was 66,793
animals and tribal harvest was 2,377.
Even if tribal deer and elk harvest have been
underestimated, tribal harvest levels would have to increase
two hundred percent to equate with a ten percent change in the
state harvest.
Clearly, tribal harvest constitutes a minuscule portion of
the combined harvest. It also should be noted that in cases
where the combined, localized tribal and non-tribal harvests
were causes for concern, tribal and state managers have come
together and worked out solutions.
For example, the Colville Tribes have voluntarily shortened
our mule deer seasons on the North Half for the past two years
in the interests of conservation.
Additionally, none of the figures on state deer and elk
harvest levels figures include poaching losses. These poaching
losses are significant in number and attributed almost
entirely, if not completely, to non-Indians. Washington State
estimates that 2,000 elk are taken out of season every year,
which represents approximately six to seven years of tribal
harvest, based on the 1988-1995 average.
In view of these facts, why is the consistent enforcement
of state regulations necessary for the conservation of deer and
elk? Under the ``reasonable and necessary conservation'' rule
of earlier Federal court decisions, Indian hunting and fishing
rights which normally may not be qualified by the states, may
be regulated by the state in the interest of conservation. The
State, however, must demonstrate that: (1) there is a
compelling need in the interest of conservation; (2) state
regulation is a reasonable and necessary conservation measure;
and (3) its application to Indians is necessary in the interest
of conservation. This avenue for conservation is still left
intact if H.R. 3987 is halted. The Colville Tribes propose that
this avenue continue to remain as the correct form for managing
and conserving deer and elk within the borders of Washington
State.
H.R. 3987 also overlooks the fact that states work with
tribes as sovereign co-managers of their wildlife resources.
Through the co-managing process with the State of Washington,
tribes set and regulate seasons for their members and monitor
tribal harvests. In many cases in Washington, tribal season
frameworks are forwarded to the Department of Fish and Wildlife
for comment and harvest data is shared. The Colville Tribes are
no exception and have a twenty year history of sharing harvest
data and season information with the State. The Colvilles also
have an agreement with the State of Washington wherein certain
species of fish and game on the Reservation are available for
non-tribal harvest in the interests of conservation and
recreational opportunity. This agreement also provides for
joint law enforcement and animal damage control in boundary
areas.
Overall, the Colville Tribes have a good working
relationship with the Washington Department of Fish and
Wildlife. The Tribe and the State are involved in several joint
undertakings such as off reservation big game aerial surveys,
research on the state threatened sharp-tailed grouse, peregrine
falcon reintroduction, screening irrigation intake pipes to
protect anadromous fish, and a mule deer research study
proposal. The Tribe has also funded off reservation big game
winter feeding programs and a state fish hatchery in
northeastern Washington.
Another flaw in the findings of H.R. 3987 is that they
assume that tribal season frameworks and bag limits are
excessive and that tribal game management programs are inferior
to those of a state. These assumptions demonstrate the depth of
misunderstanding and lack of accurate information in the minds
of many non-Indians regarding tribal hunting. To illuminate the
fallacy of these assumptions, it should be known that tribes
are comparatively small, homogenous, interrelated groups of
people. As a result, tribal hunters tend to have similar goals
and views on hunting and wildlife in general. Further, tribal
managers are in direct contact with a significantly larger
portion of their hunters than their state counterparts. Tribal
managers are also in direct contact with policy makers (the
tribal councils) at a level and frequency of access superior to
that of their state counterparts. These facts provide tribes
the opportunity to closely monitor harvest, to take action
rapidly, and in general to be adaptable and proactive at a rate
that is not available to that of the State.
As an example, in Washington State elk herds in the Blue
Mountains used to have only three to four bulls per one hundred
cows and few, if any, mature bulls. Such attributes in turn
affected calf production, survival and recritment. These skewed
demographics were found to be a result of years of heavy bull
harvest under Washington State elk season frameworks rather
than a result of tribal hunting.
This bill also does not mention, let alone address, other
issues affecting deer and elk in Washington, particularly loss
and conversion of habitat. These conditions are caused by over
exploitation of forest products, improper grazing practices,
urban and industrial development, and the overall crush of a
growing human population and the demands put on the land as a
result.
The American West is experiencing unprecedented population
growth as people depart other areas to settle in this region.
Not only is the West the fastest growing region in America, it
rivals the growth rate of Africa and exceeds that of Mexico.
Washington is no exception to this trend and is growing by
100,000 people a year. This State was once defined by low
population densities living on rural lands held in large
contiguous ownership patterns. Now many areas are seeing sharp
increases in housing densities, human densities, roads,
shopping malls, et cetera. This translates into less habitat
for many forms of wildlife and more pressure on hunted species.
This is particularly true in Washington which is the smallest
western state with the second highest human population and the
lowest percentage of public land.
Are not the wildlife resources of Washington, and the
nation, better served through the cooperative efforts of tribal
and non-tribal management entities to jointly address and solve
resources problems? Would not the time and money spent in
countering the divisive efforts of a few be better spent on
protecting and improving critical habitat? Wouldn't it be
better to bring people together to find solutions than to drive
wedges between them while problems continue to multiply
virtually unchecked? Our answer is an emphatic, resounding YES!
We believe this is the best way to meet the resource challenges
facing all Americans and we will continue to choose the path of
cooperation and objectivity for the sake of our resources and
that of future generations.
For the forgoing reasons, we urge you to oppose this bill.
[GRAPHIC] [TIFF OMITTED] T0754.006
[GRAPHIC] [TIFF OMITTED] T0754.007
[GRAPHIC] [TIFF OMITTED] T0754.008
[GRAPHIC] [TIFF OMITTED] T0754.009
[GRAPHIC] [TIFF OMITTED] T0754.010
[GRAPHIC] [TIFF OMITTED] T0754.011
[GRAPHIC] [TIFF OMITTED] T0754.012
[GRAPHIC] [TIFF OMITTED] T0754.013
[GRAPHIC] [TIFF OMITTED] T0754.014
[GRAPHIC] [TIFF OMITTED] T0754.015
[GRAPHIC] [TIFF OMITTED] T0754.016
[GRAPHIC] [TIFF OMITTED] T0754.017
[GRAPHIC] [TIFF OMITTED] T0754.018
[GRAPHIC] [TIFF OMITTED] T0754.019
[GRAPHIC] [TIFF OMITTED] T0754.020
[GRAPHIC] [TIFF OMITTED] T0754.021
[GRAPHIC] [TIFF OMITTED] T0754.022
[GRAPHIC] [TIFF OMITTED] T0754.023
[GRAPHIC] [TIFF OMITTED] T0754.024
[GRAPHIC] [TIFF OMITTED] T0754.025
[GRAPHIC] [TIFF OMITTED] T0754.026
[GRAPHIC] [TIFF OMITTED] T0754.027
[GRAPHIC] [TIFF OMITTED] T0754.028
[GRAPHIC] [TIFF OMITTED] T0754.029
[GRAPHIC] [TIFF OMITTED] T0754.030
[GRAPHIC] [TIFF OMITTED] T0754.031
[GRAPHIC] [TIFF OMITTED] T0754.032
[GRAPHIC] [TIFF OMITTED] T0754.033
[GRAPHIC] [TIFF OMITTED] T0754.034
[GRAPHIC] [TIFF OMITTED] T0754.035
[GRAPHIC] [TIFF OMITTED] T0754.036
[GRAPHIC] [TIFF OMITTED] T0754.037
[GRAPHIC] [TIFF OMITTED] T0754.038
[GRAPHIC] [TIFF OMITTED] T0754.039
[GRAPHIC] [TIFF OMITTED] T0754.040
[GRAPHIC] [TIFF OMITTED] T0754.041
[GRAPHIC] [TIFF OMITTED] T0754.042
[GRAPHIC] [TIFF OMITTED] T0754.043
[GRAPHIC] [TIFF OMITTED] T0754.044
[GRAPHIC] [TIFF OMITTED] T0754.045
[GRAPHIC] [TIFF OMITTED] T0754.046
[GRAPHIC] [TIFF OMITTED] T0754.047
[GRAPHIC] [TIFF OMITTED] T0754.048
[GRAPHIC] [TIFF OMITTED] T0754.049
[GRAPHIC] [TIFF OMITTED] T0754.050
[GRAPHIC] [TIFF OMITTED] T0754.051
[GRAPHIC] [TIFF OMITTED] T0754.052
[GRAPHIC] [TIFF OMITTED] T0754.053
[GRAPHIC] [TIFF OMITTED] T0754.054
[GRAPHIC] [TIFF OMITTED] T0754.055
[GRAPHIC] [TIFF OMITTED] T0754.056
[GRAPHIC] [TIFF OMITTED] T0754.057
[GRAPHIC] [TIFF OMITTED] T0754.058
[GRAPHIC] [TIFF OMITTED] T0754.059
[GRAPHIC] [TIFF OMITTED] T0754.060
[GRAPHIC] [TIFF OMITTED] T0754.061
[GRAPHIC] [TIFF OMITTED] T0754.062
[GRAPHIC] [TIFF OMITTED] T0754.063
[GRAPHIC] [TIFF OMITTED] T0754.064
[GRAPHIC] [TIFF OMITTED] T0754.065
[GRAPHIC] [TIFF OMITTED] T0754.066
[GRAPHIC] [TIFF OMITTED] T0754.067
[GRAPHIC] [TIFF OMITTED] T0754.068
[GRAPHIC] [TIFF OMITTED] T0754.069
[GRAPHIC] [TIFF OMITTED] T0754.070
[GRAPHIC] [TIFF OMITTED] T0754.071
[GRAPHIC] [TIFF OMITTED] T0754.072