[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
H.R. 885 AND H.R. 1753
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
Thursday, October 2, 2003
__________
Serial No. 108-65
__________
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://resourcescommittee.house.gov
______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Elton Gallegly, California Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Donna M. Christensen, Virgin
Barbara Cubin, Wyoming Islands
George Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Jay Inslee, Washington
Carolina Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Jim Gibbons, Nevada, Anibal Acevedo-Vila, Puerto Rico
Vice Chairman Brad Carson, Oklahoma
Mark E. Souder, Indiana Raul M. Grijalva, Arizona
Greg Walden, Oregon Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona George Miller, California
Tom Osborne, Nebraska Edward J. Markey, Massachusetts
Jeff Flake, Arizona Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana Ciro D. Rodriguez, Texas
Rick Renzi, Arizona Joe Baca, California
Tom Cole, Oklahoma Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
------
SUBCOMMITTEE ON WATER AND POWER
KEN CALVERT, California, Chairman
GRACE F. NAPOLITANO, California, Ranking Democrat Member
George Radanovich, California Calvin M. Dooley, California
Greg Walden, Oregon Jay Inslee, Washington
Thomas G. Tancredo, Colorado Raul M. Grijalva, Arizona
J.D. Hayworth, Arizona Dennis A. Cardoza, California
Tom Osborne, Nebraska George Miller, California
Rick Renzi, Arizona Ciro D. Rodriguez, Texas
Stevan Pearce, New Mexico Joe Baca, California
Devin Nunes, California Nick J. Rahall II, West Virginia,
Richard W. Pombo, California, ex ex officio
officio
------
C O N T E N T S
----------
Page
Hearing held on Thursday, October 2, 2003........................ 1
Statement of Members:
Calvert, Hon. Ken, a Representative in Congress from the
State of California........................................ 1
Prepared statement of.................................... 2
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 14
Hayworth, Hon. J.D., a Representative in Congress from the
State of Arizona........................................... 4
Prepared statement of.................................... 5
Kyl, Hon. Jon, a U.S. Senator in Congress from the State of
Arizona.................................................... 6
Prepared statement on H.R. 885........................... 8
Napolitano, Hon. Grace F., a Representative in Congress from
the State of California.................................... 3
Prepared statement of.................................... 3
Nethercutt, Hon. George, Jr., a Representative in Congress
from the State of Washington............................... 9
Prepared statement on H.R. 1753.......................... 11
Pearce, Hon. Stevan, a Representative in Congress from the
State of New Mexico........................................ 13
Prepared statement of.................................... 13
Renzi, Hon. Rick, a Representative in Congress from the State
of Arizona................................................. 12
Prepared statement of.................................... 12
Statement of Witnesses:
Guenther, Herbert R., Director, Arizona Department of Water
Resources, Oral statement on H.R. 885...................... 68
Response to questions submitted for the record........... 76
Supplemental statement submitted for the record.......... 124
Hickok, Steven, Deputy Administrator, Bonneville Power
Administration............................................. 21
Prepared statement on H.R. 1753.......................... 23
Response to questions submitted for the record........... 26
Juan-Saunders, Vivian, Chairwoman, Tohono O'odham Nation..... 58
Prepared statement on H.R. 885........................... 60
Kitcheyan, Kathleen W., Tribal Chairwoman, San Carlos Apache
Tribe, Oral statement on H.R. 885.......................... 66
Lopez, Estevan R., Director, New Mexico Interstate Stream
Commission................................................. 78
Prepared statement on H.R. 885........................... 79
Martin, Aurene, Acting Assistant Secretary for Indian
Affairs, U.S. Department of the Interior, Oral statement on
H.R. 885................................................... 21
Napolitano, Hon. Janet, Governor, State of Arizona, Prepared
statement of............................................... 69
Narcia, Hon. Richard, Governor, Gila River Indian Reservation 51
Prepared statement on H.R. 885........................... 53
Response to questions submitted for the record........... 57
Pollak, Stanley, Water Rights Counsel, Navajo Nation, Oral
statement on H.R. 885...................................... 82
Raley, Bennett W., Assistant Secretary for Water and Science,
U.S. Department of the Interior............................ 14
Prepared statement on H.R. 885........................... 15
Response to questions submitted for the record........... 20
Shirley, Joe, Jr., President, Navajo Nation, Prepared
statement on H.R. 885...................................... 84
Seyler, Warren, Chairman, Spokane Tribe of Indians........... 33
Prepared statement on H.R. 1753.......................... 35
Response to questions submitted for the record........... 38
Additional materials supplied:
Arizona Cities of Chandler, Glendale, Goodyear, Mesa, Peoria,
and Scottsdale, Statement submitted for the record in
support of H.R. 885........................................ 99
Burdette, Vivian, Chairwoman, Tonto Apache Tribe, Statement
submitted for the record in support of H.R. 885............ 123
Fines, L. Anthony, Attorney for Gila Valley Irrigation
District and David A. Brown, Attorney for Franklin
Irrigation District, Statement submitted for the record.... 101
Fullmer, Jamie, Chairman, Yavapai-Apache Nation, Statement
submitted for the record in support of H.R. 885............ 123
Gila River Indian Community, Supplemental testimony submitted
for the record............................................. 101
Hawker, Hon. Keno, Mayor, City of Mesa, Arizona, Statement
submitted for the record................................... 107
Mason, Douglas, General Manager, San Carlos Irrigation and
Drainage District, Coolidge, Arizona, Statement submitted
for the record in support of H.R. 885...................... 108
Payson, Town of, Arizona, Statement submitted for the record
by the Mayor and Common Council in support of H.R. 885..... 109
Renner, George, President, Board of Directors, Central
Arizona Water Conservation District, Statement submitted
for the record............................................. 109
Rimsza, Hon. Skip, Mayor, City of Phoenix, Arizona, Statement
submitted for the record in support of H.R. 885............ 112
Spokane Tribe of Indians: A Showing of the United States'
Need to Fairly and Honorably Settle the Tribes Claims for
Grand Coulee--A Narrative with Attachments, submitted for
the record on H.R. 1753.................................... 123
Sullivan, John F., Associate General Manager, Water Group,
Salt River Valley Water Users Association and Salt River
Project Agricultural Improvement and Power District,
Statement submitted for the record in support of H.R. 885.. 114
Talley, Hon. Van, Mayor, City of Safford, Arizona, Statement
submitted for the record in support of H.R. 885............ 122
LEGISLATIVE HEARING ON H.R. 885, TO PROVIDE FOR ADJUSTMENTS TO THE
CENTRAL ARIZONA PROJECT IN ARIZONA, TO AUTHORIZE THE GILA RIVER INDIAN
COMMUNITY WATER RIGHTS SETTLEMENT, TO REAUTHORIZE AND AMEND THE
SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT ACT OF 1982, AND FOR OTHER
PURPOSES; AND H.R. 1753, TO PROVIDE FOR EQUITABLE COMPENSATION OF THE
SPOKANE TRIBE OF INDIANS OF THE SPOKANE RESERVATION IN SETTLEMENT OF
CLAIMS OF THE TRIBE CONCERNING THE CONTRIBUTION OF THE TRIBE TO THE
PRODUCTION OF HYDROPOWER BY THE GRAND COULEE DAM, AND FOR OTHER
PURPOSES.
----------
Thursday, October 2, 2003
U.S. House of Representatives
Subcommittee on Water and Power
Committee on Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 10:02 a.m., in
Room 1324, Longworth House Office Building, Hon. Ken Calvert
[Chairman of the Subcommittee] presiding.
Present: Representatives Calvert, Hayworth, Renzi, Pearce,
Napolitano and Grijalva.
STATEMENT OF HON. KEN CALVERT, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Calvert. The legislative hearing by the Subcommittee on
Water and Power will come to order.
The Subcommittee today is meeting to hear testimony on H.R.
885, to provide for adjustments to the Central Arizona Project
in Arizona to authorize the Gila River Indian Community water
rights settlement, to reauthorize and amend the Southern
Arizona Water Rights Settlement Act of 1982, and for other
purposes; and H.R. 1753, to provide for an equitable
compensation of the Spokane Tribe of Indians of the Spokane
Reservation in the settlement of claims of the tribe concerning
the contribution of the tribe to the production of hydropower
by the Grand Coulee Dam, and for other purposes.
Mr. Calvert. Today's hearing is another step in our efforts
to examine the potential value of other water and power
resources throughout the West. Both bills before the
Subcommittee today have direct impacts on Native American
communities and their communities, and their neighbors.
The Arizona delegation, particularly Senator Kyl, who will
be here shortly, and my distinguished colleague, J.D. Hayworth,
have worked hard to find consensus-based water solutions in
their State. H.R. 885 and its Senate companion bill reflect
those efforts to date. The bills rightly attempt to resolve
costly litigation and give the people of Arizona a road map of
water certainty through a whole host of water supply and uses.
As one who has worked to bring parties together to resolve a
similar situation involving the quantification settlement
agreement in Southern California with our friends in the Upper
and Lower Basin, I strongly support the concepts of long-term
water certainty and reducing litigation.
Although I realize that some issues remain on H.R. 885, I
want to commend the Arizona delegation and the administration
for their leadership in attempting to resolve this very complex
situation.
I would also like to commend my Washington State colleague,
George Nethercutt, for rising in strong defense of his
constituents and trying to bring more accountability to how our
government operates. I know that he has worked hard for many
years on trying to right the wrongs of the past as it relates
to the Spokane Tribe. Everyone agrees that the tribe has been
seriously impacted by the construction of the Grand Coulee Dam.
However, disagreement exists over the bets method to compensate
the tribe. I realize the tribe has run into a substantial
statute of limitation problem with their claim, but that
shouldn't stop the tribe and the Bonneville Power
Administration from working constructively on a final solution.
[The prepared statement of Mr. Calvert follows:]
Statement of The Honorable Ken Calvert, Chairman,
Subcommittee on Water and Power, on H.R. 885 and H.R. 1753
Today's hearing is another step in our effort to examine the
potential value of our water and power resources throughout the west.
Both bills before the Subcommittee today have direct impacts on their
respective native American communities and on their neighbors.
The Arizona delegation, particularly Sen. Kyl and my distinguished
colleague, J.D. Hayworth, have worked hard to bring about consensus-
based water solutions for their state. H.R. 885 and its Senate
companion bill reflect that progress to date. The bills rightly attempt
to resolve costly litigation and give the people of Arizona a roadmap
of water certainty through a whole host of water supplies and uses.
As one who has worked to bring parties together to resolve a
similar situation involving the March 11, 2004, Quantification
Settlement Agreement in southern California, I strongly support these
concepts.
Although I realize that some issues remain on H.R. 885, I want to
commend the Arizona delegation and the Administration for their
leadership in attempting to resolve this very complex situation.
I would also like to commend my Washington State colleague, George
Nethercutt, for rising in strong defense of his constituents and trying
to bring more accountability to how our government operates. I know
that he has worked hard for many years on trying to right the wrongs of
the past as it relates to the Spokane Tribe.
Everyone agrees that the Tribe has been seriously impacted by the
construction of the Grand Coulee Dam, however disagreement exists over
the best method to compensate the Tribe. I realize that the Tribe has
run into a substantial statute of limitations problem with their claim,
but that shouldn't stop the Tribe and the Bonneville Power
Administration from working constructively on a final solution.
Since I have to leave mid-way through the hearing, I am going to
hand the gavel to my able friend and colleague, J.D. Hayworth at the
appropriate time. In the meantime, I welcome the witnesses and look
forward to resolution on these bills. I also ask that members limit
their questions to the Administration to the issues before us today.
Thank you
______
Mr. Calvert. Since I must leave midway through the hearing,
I am going to hand the gavel over to my able friend and
colleague, J.D. Hayworth, at the appropriate time. In the
meantime, I will welcome the witnesses and ask all parties to
find resolutions on these bills.
I also ask that members limit their questions to the issues
today before us, and I would thank you.
I now recognize my friend and recognize Ms. Napolitano and
the Ranking Democrat member for any statements she may have.
STATEMENT OF HON. GRACE NAPOLITANO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mrs. Napolitano. Thank you, Mr. Chairman. That really was a
low blow.
[Laughter.]
Mrs. Napolitano. I am teasing. Thank you for the
opportunity to be here today, Mr. Chair. The two water bills
before us today affecting Native Americans have had a long and
complex history, as we have heard, and upon reading it, I am
aghast. I am amazed at how long it has been to have this before
us, and I am sure my colleagues are as distressed as I am and
hope that this neglect, this shunning of our obligation to our
Native Americans will be righted, or at the least the beginning
of finding the solutions to helping those people that have
suffered for so long without some equality in these areas.
I congratulate my colleagues for their efforts and trust
that we will be having some solutions as we move forward. Thank
you so very much, Mr. Chair. I look forward to the hearing.
[The prepared statement of Mrs. Napolitano follows:]
Statement of The Honorable Grace Napolitano, a Representative in
Congress from the State of California
Thank you, Chairman Calvert, for holding this important hearing
today.
H.R. 885 would provide adjustments to the Central Arizona Project,
authorize a water rights settlement for the Gila River tribe and amend
the Southern Arizona Water Rights Settlement Act.
H.R. 1753 would provide equitable compensation of the Spokane Tribe
of Indians of the Spokane Reservation.
Both bills have a long and complex history that dates back prior to
my time in Congress. I look forward to hearing from our witnesses, and
especially thank those that traveled to Washington to be here today.
______
Mr. Calvert. I thank the gentlelady.
Mr. Hayworth?
STATEMENT OF HON. J.D. HAYWORTH, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ARIZONA
Mr. Hayworth. Mr. Chairman, thank you very much, and I
would like to begin by thanking Chairman Pombo and Chairman
Calvert for scheduling this, also my good friend and colleague
from the First District, Rick Renzi, who is the Vice Chairman
and will have a hand in the hearing today, and I see my friend,
Mr. Grijalva, so we have good bipartisan representation from
the State of Arizona; and we will no doubt be joined by our
friend from the new Sixth District, Congressman Flake, who also
serves on this Subcommittee.
Let me pause at this juncture, Mr. Chairman, to personally
thank the witnesses for traveling so far to be here today to
testify. In particular, I know that in addition to the tribal
chairpeople who are here to testify, a number of my friends who
serve on the tribal councils as well as tribal administrators
and many other Arizonans join us today in the audience.
Because of time constraints, we will have only one witness
representing the State of Arizona, but I am informed that you
have secured formal approval of the settlement agreement from
most of the cities, towns, irrigation districts, and water
purveyors in Arizona that are incorporated in the current
settlement framework.
We are also joined today by our friends from New Mexico. It
is my understanding that Arizona and New Mexico interests have
been able to reach an agreement that will resolve some of the
claims that are currently in dispute between water users in our
two States. I am hopeful this successful effort will soon
translate into a successful resolution on another Arizona-New
Mexico issue that has apparently been lingering since 1968.
And finally, I am pleased to acknowledge the hard work and
leadership of my colleague from the U.S. Senate, Senator Jon
Kyl. Senator Kyl, I believe you to be the right man at the
right time to move this along and get this done.
At the center of the legislation we are here today to
consider is an effort to do justice to all Indian tribes in
Arizona. By any measure, Indian tribes, especially those in
Arizona, have given much more to the United States than they
have received in return. Although Arizona includes more
reservations and reservation land than any other State, we
should not lose sight of the fact that all of the remaining
land was in some way ceded by an Arizona Indian tribe. Of
course, the contributions made by Native Americans and
throughout Indian country continue on today, including
involvement in our State's economy, and as the State of Arizona
makes clear in its testimony, through dedication and service in
our nation's armed forces.
In my estimation, this legislation represents a new era in
Arizona and Federal relations with Indian tribes. First, this
is an agreement that originated in Indian country. Second, it
is not a handout. It includes bargained-for exchanges between
all of the parties to the settlement. No one got everything
they wanted, and in some cases, some parties had to settle for
less than they believe they deserved. But the town of Autumn
Nation and the Gila River Indian Community have taken the stand
that, on balance, this represents a significant step forward
for their government and their people.
Every Indian tribe that receives Central Arizona Project
water will immediately receive a benefit from this legislation
because it provides decades of relief from certain charges that
apply to their CAP water. In addition, those Indian tribes with
existing settlements will have access to a new funding source
to pay for the components of their settlement agreements. This
same funding source will be available to settle any remaining
tribal water rights claims in Arizona.
While this legislation aids Arizona Indian tribes, it also
provides benefits to the overwhelming majority of Arizona's
citizens. First, by resolving Arizona's dispute over CAP
repayment and over the division of CAP water, Arizona can
effectively manage its scarce water resources. For decades,
Arizona has made groundwater management one of its highest
priorities, and this legislation builds upon this effort. Water
management is nearly impossible without certainty of supply and
priority. Through the negotiations affirmed by this
legislation, we can have that certainty without waiting years
or even decades for court rulings.
Mr. Chairman, colleagues, ladies and gentlemen, I am
hopeful that today's testimony will focus on how we can resolve
any remaining issues and get this important legislation done as
quickly as possible.
Again, thank you, Mr. Chairman. I yield back.
[The prepared statement of Mr. Hayworth follows:]
Statement of The Honorable J.D. Hayworth, a Representative in Congress
from the State of Arizona
I would like to begin by thanking Chairman Pombo and the Chairman
of this Subcommittee, Mr. Calvert and the Vice Chairman, my friend from
Arizona, Rick Renzi, for scheduling this hearing today. I would also
like to personally thank the witnesses for traveling so far to be here
today to testify. In particular, I know that in addition to the tribal
chairpeople who are here to testify, a number of my friends who serve
on the tribal councils and as tribal administrators, as well as many
other Arizonans also join us today in the audience.
Because of time-constraints we will only have one witness
representing the State of Arizona, but I am informed that you have
secured formal approval of the settlement agreement from most of the
cities, towns, irrigation districts, and water purveyors in Arizona
that are incorporated in the settlement framework.
We are also joined today by our friends from New Mexico. It is my
understanding that Arizona and New Mexico interests have been able to
reach an agreement that will resolve some of the claims that are
currently in dispute between water users in our two states. I am
hopeful that this successful effort will soon translate into a
successful resolution on another Arizona-New Mexico issue that has
apparently been lingering since 1968.
Finally, I would like to acknowledge the hard work and leadership
of my colleague from the United States Senate, Senator Jon Kyl. Senator
Kyl is the right man at the right time to get this done.
At the center of the legislation that we are here today to consider
is an effort to do justice to all Indian tribes in Arizona. By any
measure, Indian tribes, especially in Arizona, have given much more to
the United States than they have received in return. Although Arizona
includes more reservations and reservation land than any other State,
we should not lose sight of the fact that all of the remaining land was
in some way ceded by an Arizona Indian tribe. Of course, the
contributions made by Indians and Indian country continue on through
today including involvement in the State's economy and, as the State of
Arizona makes clear in its testimony, through dedication and service in
our Nation's armed forces.
In my estimation, this legislation represents a new era in Arizona
and federal relations with Indian tribes. First, this is an agreement
that originated in Indian country. Second, it is not a hand-out. It
includes bargained-for exchanges between all of the parties to the
settlement. No one got everything they wanted, and, in some cases, they
had to settle for less than they believe they deserve. But the Tohono
O'odham Nation and the Gila River Indian Community have taken the stand
that, on balance, this represents a significant step forward for their
government and their people.
Every Indian tribe that receives Central Arizona Project water will
immediately receive a benefit from this legislation because it provides
decades of relief from certain charges that apply to their CAP water.
In addition, those Indian tribes with existing settlements will have
access to a new funding source to pay for the components of their
settlement agreements. This same funding source will be available to
settle any remaining tribal water rights claims in Arizona.
While this legislation aids Arizona Indian tribes, it also provides
benefits to the overwhelming majority of Arizona citizens. First, by
resolving Arizona's dispute over CAP repayment and over the division of
CAP water, Arizona can manage its scarce water resources. For decades,
Arizona has made groundwater management one of its highest priorities.
This legislation builds upon that effort.
Water management is nearly impossible without certainty of supply
and priority. Through the negotiations affirmed by this legislation, we
can have that certainty without waiting years or even decades for court
rulings.
I am hopeful that today's testimony will focus on how we can
resolve any remaining issues and get this important legislation done as
quickly as possible.
______
Mr. Calvert. I thank the gentleman.
If there are any other additional opening statements, I
would ask that we would put them off until after our first
panel gives their testimony to allow them to return to their
duties.
With that, I would like to recognize the first panel, our
friend and former colleague here in the House, Senator Jon Kyl,
United States Senator, State of Arizona, who will testify on
H.R. 885. Senator?
STATEMENT OF HON. JON KYL, A UNITED STATES SENATOR FROM THE
STATE OF ARIZONA
Senator Kyl. Thank you very much, Mr. Chairman. I thank
Representative Nethercutt for allowing me to go first here.
Thank you, Mr. Chairman. I thank Representative Hayworth for a
fine statement, for his cosponsorship of the bill, and both
Representatives Grijalva and Renzi for their assistance in
getting this hearing scheduled. We appreciate it very much.
The water users of Arizona have waited a long time for this
day, and I just hope you can appreciate the significance that
all of the people behind you feel, the fact that you are
holding this hearing. That is very much why I appreciate it. It
is really the product, this legislation, of about 14 years of
negotiation and litigation and then negotiation again.
Virtually every major water user and provider in Central
Arizona has devoted itself to the passage of this bill. In
fact, H.R. 885 would codify the largest water claims settlement
in the history of Arizona. The three titles in the bill
represent the tremendous efforts of literally hundreds of
people in Arizona, as well as Washington, D.C., over this
period of 14 years. Looking ahead, this bill could ultimately
be nearly as important to Arizona's future as was the
authorization of the Central Arizona Project.
Since Arizona began receiving CAP water from the Colorado
River, litigation has divided water users over how the CAP
water should be allocated and exactly how much Arizona was
required to repay the Federal Government. Recall that, I think
wisely, other States required of Arizona a payback of a portion
of the CAP if the Federal Government was going to up-front the
costs. There has now been a settlement between the U.S.
Government and the State of Arizona as to how much that
repayment should be. So the bill, among other things, codifies
that settlement and it also resolves once and for all the
allocation of all of the remaining CAP water, as I said.
The final allocation provides necessary stability for State
water authorities to plan for Arizona's future water needs, and
in addition, approximately 200,000 acre feet of CAP water will
be made available under this settlement to settle various
Indian water claims in the State.
The bill would also authorize the use of the Lower Colorado
River Basin Development Fund, which is funded solely from
revenues paid by Arizona entities, to construct irrigation
works necessary for the tribes with Congressionally approved
water settlements to use their CAP water.
Mr. Chairman, Title II of the bill settles the water rights
claims of the Gila River Indian Community, allocating nearly
100,000 acre feet of CAP water to the community and providing
funds to stabilize the costs of delivering CAP water and to
construct the facilities necessary to allow the community to
fully utilize the water that it has been allocated.
Title III provides for long-needed amendments to the 1982
Southern Arizona Water Settlement Act for the Tohono O'odham
Nation, and that has never been fully implemented.
The bill will allow Arizona cities to plan for the future,
as I said, knowing how much water they can count on. The Indian
tribes will finally get wet water, not just the paper water
rights that they have had in the past, and projects to use that
water. In addition, mining companies, farmers, irrigation
delivery districts, and others can continue to receive water
without the fear that they will be stopped by litigation.
There are some minor issues that remain, as Representative
Hayworth said, but we have every confidence that those issues
can be resolved before we mark up the legislation, and I made
that commitment in the hearing that we had in the Senate just a
couple of days ago.
In particular, the States of Arizona and New Mexico have
been negotiating the best way to address New Mexico's rights
under the 1986 Boulder Canyon Act to exchange 18,000 acre feet
of CAP water on the Gila River. They are meeting regularly and
report that they are making progress in those negotiations.
In addition, I hope that negotiations with the San Carlos
Apache Tribe will move forward so that their claims can be
resolved by the legislation. We have made it clear by leaving a
title open in the legislation that if they would like to
negotiate their claims, there is a place in the bill for those
claims to be resolved and, if not, that is a decision that they
have to make. But in any event, that opportunity is available.
In summary, the bill is vital to the citizens of Arizona.
It will provide certainty needed to move forward with water use
decisions. Furthermore, the United States can avoid litigating
water rights and damage claims and satisfy its trust
responsibilities to the tribes. The parties have worked many
years to reach consensus rather than litigate, and I believe
the bill represents the best opportunity to achieve a fair
result for everyone.
Mr. Chairman, might I make just one final comment. I
thought the hearing that was held in the Senate did something
very good. The record is full of all of the good things that
this legislation will do. Representative Hayworth and I just
barely touched on what this means to the people in Arizona. But
we went right back to business, rolled up our sleeves in the
previous hearing, by focusing really on the remaining concerns,
the things that have to be done. That is what we want the
people of this Committee to know, not just all of the good
things, but the few things that we remain working on, and
especially Bennett Raley from the Department of Interior will
identify things the Department is working on so you will know
exactly what is left to do before we can conclude this
settlement. So I count that as good news, not something that we
should be concerned about.
I am very appreciative of all of the people behind me who
have worked so hard to make this settlement a reality and I
thank you again for giving them the opportunity to be here and
to see that we can move this legislation forward.
[The prepared statement of Mr. Kyl follows:]
Statement of The Honorable Jon Kyl, a U.S. Senator
from the State of Arizona
Chairman Calvert, and members of the Subcommittee, I would first
like to thank you for holding this hearing and allowing me to testify.
My special thanks also go to my colleague, Rep. Hayworth, for
sponsoring this important legislation and shepherding it through the
Congressional process. The water users and providers of Arizona have
waited a long time for this day. The bill before your committee, the
Arizona Water Settlements Act (H.R. 885), is the product of fourteen
years of negotiation, litigation, and more negotiation. Virtually every
major water user and provider in central Arizona has devoted itself to
the passage of this bill. In fact, H.R. 885 would codify the largest
water claims settlement in the history of Arizona. The three titles in
this bill represent the tremendous efforts of literally hundreds of
people in Arizona and here in Washington over a period of fourteen
years. Looking ahead, this bill could ultimately be nearly as important
to Arizona's future as was the authorization of the Central Arizona
Project (CAP) itself.
Since Arizona began receiving CAP water from the Colorado River,
litigation has divided water users over how the CAP water should be
allocated and exactly how much Arizona was required to repay the
federal government. This bill will, among other things, codify the
settlement reached between the United States and the Central Arizona
Water Conservation District over the state's repayment obligation for
costs incurred by the United States in constructing the Central Arizona
Project. It will also resolve, once and for all, the allocation of all
remaining CAP water. This final allocation will provide the stability
necessary for state water authorities to plan for Arizona's future
water needs. In addition, approximately 200,000 acre-feet of CAP water
will be made available to settle various Indian water claims in the
state. The bill would also authorize the use of the Lower Colorado
River Basin Development Fund, which is funded solely from revenues paid
by Arizona entities, to construct irrigation works necessary for tribes
with congressionally approved water settlements to use CAP water.
Mr. Chairman, Title II of this bill settles the water rights claims
of the Gila River Indian Community. It allocates nearly 100,000 acre-
feet of CAP water to the Community, and provides funds to subsidize the
costs of delivering CAP water and to construct the facilities necessary
to allow the Community to fully utilize the water allocated to it in
this settlement. Title III provides for long-needed amendments to the
1982 Southern Arizona Water Settlement Act for the Tohono O'odham
Nation, which has never been fully implemented.
This bill will allow Arizona cities to plan for the future, knowing
how much water they can count on. The Indian tribes will finally get
``wet'' water (as opposed to the paper claims to water they have now)
and projects to use the water. In addition, mining companies, farmers,
and irrigation delivery districts can continue to receive water without
the fear that they will be stopped by Indian litigation.
While some minor issues remain, we have every confidence that these
issues will be resolved before we mark-up the bill. In particular, the
states of Arizona and New Mexico have been negotiating the best way to
address New Mexico's right under the 1968 Boulder Canyon Project Act
(authorizing the CAP) to exchange 18,000 acre-feet of CAP water on the
Gila River. The states are meeting regularly and report that they are
making progress. In addition, we hope that negotiations with the San
Carlos Apache Tribe will move forward so that all claims can be
resolved by this bill.
In summary, this bill is vital to the citizens of Arizona and will
provide the certainty needed to move forward with water use decisions.
Furthermore, the United States can avoid litigating water rights and
damage claims and satisfy its trust responsibilities to the Tribes. The
parties have worked many years to reach consensus rather than litigate,
and I believe this bill represents the best opportunity to achieve a
fair result for all the people of Arizona.
______
Mr. Calvert. Thank you, Senator, for your testimony. I know
you have to get back a couple hundred yards away here, and so
we appreciate your coming today and look forward to working
with you on this legislation.
Next, The Honorable George Nethercutt, U.S. House of
Representatives. The gentleman is recognized.
STATEMENT OF HON. GEORGE R. NETHERCUTT, JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF WASHINGTON
Mr. Nethercutt. Thank you, Mr. Chairman, and thanks to the
Ranking Member and members of the Subcommittee for holding this
hearing and giving me the opportunity to provide testimony in
support of H.R. 1753. It was introduced jointly with me and
Congressman Norm Dicks of my State of Washington, and we urge
that the Subcommittee take action with respect to this
legislation.
It would provide a settlement to the Spokane Tribe of
Indians for losses suffered as a result of the construction of
the Grand Coulee Dam in my State. I don't know if any members
of the Subcommittee have had a chance to see this dam. It is
the largest concrete dam in the world. It is the largest
producer of hydroelectricity in the United States. It is the
third largest producer of electricity in the world. So it is a
huge structure. It is a mile across and it is a site to behold.
The importance of mentioning that project is that it had a
serious and detrimental impact on tribes that surround the
Grand Coulee Dam area. The Spokane Tribe, the Colville
Confederated Tribes were deeply impacted by this construction
that provides cost-based hydroelectric power to the citizens of
the Pacific Northwest and it had an impact on the fisheries,
resources, and the traditional heritage of these tribes.
It is a complicated issue that surrounds the history of the
Grand Coulee Dam and its impact on the tribes, the Colville
Tribe and the Spokane Tribe. This legislation would provide a
settlement to the Spokane Tribe, which has been lacking in a
settlement with the U.S. Government for the taking of the lands
and the fishing rights and the other consequences of the dam
over a period of years since 1941.
Similar legislation was created and enacted in 1994 to
compensate the Colville Tribe, with the difference being that
the Colville Tribes maintained the legal claim against the USA
dating back to 1951. The claim held by the Colville Tribes was
a land claim that the tribe was able to amend in 1976 to cover
damages arising from the construction and operation of the
Grand Coulee. While the Spokane Tribe had filed similar land
claims, the tribe had entered into settlement negotiations in
1967, approximately 9 years prior to any indication that the
United States might attempt to limit or eliminate its
obligations to the tribes regarding the Grand Coulee Dam. So as
a consequence, the Spokane Tribe did not have a pending Indian
Claims Commission claim to amend in 1976 as did the Colville
Confederated Tribes.
So this legislation, the legislation which enacted the
settlement for the Colville Tribes provided for a cash lump-sum
payment and annual payments in the tens of millions to the
tribe, representing the ongoing proceeds from the sale of
hydropower, monitored, administered by the Bonneville Power
Administration, which is the power marketing agency in our
region.
At that time, the House Resources Committee noted that the
Spokane Tribe has a moral claim and requests that the
Department of Interior and the Department of Justice work with
the Spokane Tribe to develop a means to address the Spokane's
claim. In 1997, the BPA, Bonneville Power Administration,
entered into negotiations with the tribe. There were some
meetings. No settlement was reached.
The tribe wants 39.4 percent, the same percentage as the
Colville Tribe, the Spokane Tribe that is the subject of this
legislation. We had negotiations a year ago. I moderated those.
We thought we were pretty close to a settlement, about 29.3
percent as a compromise. That broke down, didn't occur. The
latest offer we see from the Bonneville Power Administration
through the Department of Energy is 19.2 percent one-time
annual payment and then 19.2 percent structured catch-up
payments thereafter.
We think that is inadequate. I believe it is inadequate.
The tribe believes it is inadequate. It is not fair.
This is a matter of equity and fairness, Mr. Chairman,
members of the Subcommittee. We are expecting that this
legislation will spur negotiations, we will have a chance to
sit down further with Bonneville Power Administration and the
tribe. I am fearful that there won't be any further
negotiations unless this legislation is enacted. This is a
matter of fairness and equity to the Spokane Tribe. They have
proceeded in good faith from day one, back 30 and 40 years ago,
50 years ago, and now they are on the short end of this
negotiation stick. We believe it is fair that they receive this
fair consideration by enactment of this legislation so that
they can be equitably treated as the Department of Justice and
the government and this Committee and others have said they are
entitled to.
So I am happy to be here to testify in support of this bill
and urge your favorable consideration.
Mr. Calvert. I thank the gentleman. So you believe as this
process moves forward that you potentially could find some
middle ground on this issue if the folks from Bonneville
negotiate in good faith?
Mr. Nethercutt. Yes, sir, I do. I think we are between $20
and $90 million apart. We can reach a settlement if we have a
chance to get some pressure added to both sides to sit down,
negotiate in good faith, and get this resolved. But the offer
on the one end is way too low and the Spokane Tribe is willing
to come off its higher offer, the same fair offer that the
Colville Tribes got, the 39.4 percent.
So there is some middle ground here that can be reached, in
my judgment. We thought we had it reached. It broke down. It is
time to get back to the table and really seriously, in good
faith, negotiate and get this off everybody's table.
Mr. Calvert. I thank the gentleman.
Any additional questions for Mr. Nethercutt?
[No response.]
Mr. Calvert. Seeing none, we thank our colleague for coming
today and we appreciate your testimony.
Mr. Nethercutt. Thanks for having me.
[The prepared statement of Mr. Nethercutt follows:]
Statement of The Honorable George R. Nethercutt, Jr., a Representative
in Congress from the State of Washington
Mr. Chairman and Members of the Committee, thank you for holding
this hearing today and for the opportunity to present testimony today
in support of H.R. 1753. This legislation would provide a settlement to
the Spokane Tribe of Indians for losses suffered as a result of
construction of the Grand Coulee Dam.
Similar settlement legislation was enacted in 1994 to compensate
the neighboring Confederated Colville Tribes with the difference being
that the Colville Tribes maintained a legal claim against the United
States dating back to 1951. The claim held by the Colville Tribes was a
land claim that the Colville Tribes were able to amend in 1976 to cover
damages arising from the construction and operation of Grand Coulee
Dam. While the Spokane Tribe had filed similar land claims, the Tribe
had entered into settlement on those claims in 1967, approximately nine
years prior to any indication that the U.S. might attempt to limit or
eliminate its obligations to the Tribes regarding Grand Coulee Dam. As
a consequence, the Spokane Tribe did not have a pending Indian Claims
Commission claim to amend in 1976 as did the Colville Tribes.
The legislation which enacted a settlement to the Colville Tribes
provided for a $53 million lump sum payment for past damages payable by
the U.S. Treasury's Judgment Fund and roughly $15 million annually from
the ongoing proceeds from the sale of hydropower by the Bonneville
Power Administration. At that time, the House Resources Committee noted
``that the Spokane Tribe has a moral claim and requests that the
Department of the Interior and the Department of Justice work with the
Spokane Tribe to develop a means to address the Spokane's claim.''
In 1997, BPA entered into negotiations with the Spokane Tribe and
several meetings occurred without fruitful progress. I then introduced
legislation in 1999 to provide a settlement to the Spokane Tribe
directly proportional to the settlement afforded the Colville Tribes
based upon the percentage of lands appropriated from the tribe for the
Grand Coulee Project, or approximately 39.4 percent of the past and
future compensation awarded the Colville Tribes.
Negotiations resumed and at the last meeting held in Spokane, on
January 14, 2002, which I moderated, the Tribe presented what it
believed to be a ``middle ground'' settlement offer equaling 29.3
percent of the Colville settlement and a one time ``catch up'' payment
of $29,234,000 that would cover back payments from Fiscal Year 1995
(the time when the Colville settlement was enacted) through 2002. The
Tribe agreed to defer the receipt of the ``catch up'' payments in the
first years following the settlement to ease passage of the legislation
through Congress. In addition, the Tribe remained open to discussing
alternative payment structure arrangements that would ease the impact
on BPA ratepayers. The Administrator of BPA stated at this meeting that
he felt a middle ground had been reached and he would ``run the
numbers'' and respond to the Tribe within two weeks. We all left that
meeting, Mr. Chairman, thinking that a settlement had been reached.
Four months later, on May 15, 2002, the Administrator of BPA
finally responded to the Tribe's last offer, with a one-time promise of
annual payments of 19.2 percent of the Colville settlement and a 19.2
percent structured ``catch up'' payment covering FY 1995 through FY
2002. The difference between the two proposals was estimated at the
time to be between $20 million and $90 million.
Unfortunately, I believe we have now reached a point where
negotiations between BPA and the Tribe will proceed no further without
additional direction from Congress. Therefore, I request that you
approve this legislation so that the Federal Government may keep the
word of our Nation to the Spokane Tribe.
______
Mr. Calvert. I would now like to--excuse me. Are there any
additional opening statements? Mr. Renzi?
STATEMENT OF HON. RICK RENZI, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF ARIZONA
Mr. Renzi. Thank you, Chairman Calvert and members of the
Committee. I want to take this opportunity to provide brief
remarks on H.R. 885, the Arizona Water Settlement Act.
I would like to begin by welcoming all of our speakers
today, specifically those speakers from the First District of
Arizona, especially San Carlos Apache Chairwoman Kathy
Kitcheyan and members of the Tribal Council, as well as Navajo
Nation President Joe Shirley. I want to thank you all for
traveling to Washington, D.C., for being here, my friends from
the Apache Nation. Both the White Mountain Apache Nation and
the Avapaya Apache and the Tonto Apache have provided written
testimony, and I appreciate your participation in this process.
I know this legislation has taken years to draft and
negotiate, has resulted in parts of it that remain complex. I
recognize that a hearing on this Arizona Water Settlements Act
is an important first step in the legislative process. And
while all parties are aware that we still may address some
issues, as Senator Kyl has discussed, I am hopeful that these
final issues can be worked out and that the settlement can
occur specifically to benefit all parties involved.
I want to thank you for the opportunity to open with these
remarks. I look forward to hearing the testimony.
[The prepared statement of Mr. Renzi follows:]
Statement of The Honorable Rick Renzi, a Representative in Congress
from the State of Arizona
Chairman Calvert and members of the committee, thank you for the
opportunity to provide brief remarks on H.R. 885, the Arizona Water
Settlements Act.
I would like to welcome all of our speakers today, specifically
those speakers from the First District of Arizona, San Carlos Apache
Chairwoman Kathy Kitcheyan and Navajo Nation President Joe Shirley.
Thank you for traveling to Washington, D.C., to discuss your interest
in this legislation. In addition, written testimony has been submitted
by several other tribes in my district, the White Mountain Apache,
Yavapai Apache and Tonto Apache. I appreciate the participation by all
of these tribes.
This legislation has taken years to draft and negotiate and, as a
result, is extremely complex. I recognize that a hearing on the Arizona
Water Settlements Act is an important first step in the legislative
process. While all parties are aware that issues need to be addressed
in the Arizona Water Settlements Act, I am hopeful that these final
issues can be worked out.
Thank you for the opportunity to provide opening remarks and I look
forward to listening to the testimony today.
______
Mr. Calvert. I thank the gentleman.
Any additional opening statements? Mr. Pearce?
STATEMENT OF HON. STEVAN PEARCE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW MEXICO
Mr. Pearce. Thank you, Mr. Chairman. Again, I appreciate
the opportunity to speak on this bill and I appreciate you
holding the hearings on H.R. 885. I welcome those who have
worked hard to reach a tentative agreement to bring this bill
before you.
I especially want to welcome Estevan Lopez, the Chairman of
the New Mexico Interstate Stream Commission, who is going to
testify today.
This is a very important bill that settles some difficult
issues in Arizona and New Mexico that have divided friends and
neighbors for quite some time. It seems that in the West, as
you know, Mr. Chairman, water may be the most contentious issue
facing us all. Reaching agreement seems to be taking decades,
as evidenced by the authorizing legislation originally passed
in 1968, and we are now ready to move forward with settlement
soon. I understand the issue of diversions in the Riordan
Valley in New Mexico are settled. The issue of further
development of the Gila River Basin water in New Mexico remains
unsettled.
Thirty-five years ago, as part of the 1968 Colorado River
Basin Project Act, the New Mexico Unit of the Central Arizona
Project was authorized, conceived to provide the future water
supply in Southwestern New Mexico. Before this legislation is
enacted, we must ensure the promises made to New Mexico in 1968
is fulfilled. Negotiations are still ongoing to settle
outstanding issues and are progressing. We are committed to
working with Senator Kyl and Representative Hayworth to bring
this settlement to conclusion and to support the settlement
once New Mexico's concerns are resolved.
Thank you, Mr. Chairman, for the opportunity to speak to
this issue.
[The prepared statement of Mr. Pearce follows:]
Statement of The Honorable Stevan Pearce, a Representative in Congress
from the State of New Mexico
Thank you Mr. Chairman for holding this hearing on H.R. 885, and I
welcome those who have worked hard to reach a tentative agreement in
order to bring this bill before you.
This is a very important bill that settles some very difficult
water issues in Arizona and New Mexico that have divided friends and
neighbors for quite some time. It seems that in the West, as you know
Mr. Chairman, water may be the most contentious issue. Reaching
agreements seem to take decades, as evidenced of the authorizing
legislation originally passing in 1968, and we are now ready to move
forward with the settlements soon.
I understand the issue of diversions in the Virden Valley in New
Mexico is settled. The issue of further development of Gila River Basin
water in New Mexico remains. Thirty-five years ago, as part of the 1968
Colorado River Basin Project Act, the New Mexico Unit of the Central
Arizona Project was authorized--conceived to provide the future water
supply in Southwestern New Mexico. Before this legislation is enacted,
we MUST assure the promise made to New Mexico in 1968 is fulfilled.
Negotiations are still ongoing to settle outstanding issues, and
are progressing. I am committed to working with Senator Kyl and
Representative Hayworth to bring this settlement to conclusion, and to
support this settlement once New Mexico's concerns are resolved.
Thank you Mr. Chairman. I yield back the balance of my time.
______
Mr. Calvert. I thank the gentleman from New Mexico.
The gentleman from Arizona, Mr. Grijalva.
STATEMENT OF HON. RAUL GRIJALVA, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you, Mr. Chairman. I, too, want to
acknowledge the fine work that Senator Kyl and my colleague,
Representative Hayworth, have done on this H.R. 885. It is very
important to the State of Arizona, very important to the
nations that are represented here, Tohono O'odham Nation, the
Gila River Indian Nation and Community, and both of their--
Chairwoman Vivian Saunders is here and I want to welcome and
thank her for coming and giving testimony to this Committee.
Governor Narcia is also here and I want to thank him for his
effort on this legislation.
There are unresolved issues, but the momentum and the work
that both the community and all the interests in the State of
Arizona have done to this point have brought us to this
hearing, and I want to acknowledge the hard work and the
efforts that they put forth. I look forward to a resolution and
I look forward to this hearing continuing the momentum to reach
a final settlement, to reach a markup, and to give some
stability and security both to the Nation and to the State of
Arizona in terms of water use.
Thank you, Mr. Chairman.
Mr. Calvert. I thank the gentleman.
I would now like to recognize the administration, our next
panel of witnesses. Testifying on H.R. 885 is Mr. Bennett
Raley, Assistant Secretary of Water and Science, Department of
Interior, and Assistant Secretary Raley is accompanied by Ms.
Aurene Martin, Acting Assistant Secretary for Indian Affairs.
Testifying on H.R. 1753 is Mr. Steven Hickok, Deputy
Administrator of the Bonneville Power Administration.
I would now like to recognize Mr. Bennett Raley to testify
for 5 minutes on H.R. 885. The gentleman is recognized.
STATEMENT OF BENNETT W. RALEY, ASSISTANT SECRETARY FOR WATER
AND SCIENCE, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY AURENE
MARTIN, ACTING ASSISTANT SECRETARY FOR INDIAN AFFAIRS
Mr. Raley. Thank you, Mr. Chairman, Congresswoman
Napolitano, Mr. Hayworth, and other members of the Committee.
We are pleased today to testify on H.R. 885 for the simple
reason that the issues addressed in this legislation and the
parallel legislation on the Senate side are among the highest
priorities for the Department of the Interior. This suite of
issues spans the entire scope of the State of Arizona. It
addresses, or will address, we hope, issues important to the
State of New Mexico, and it is time to bring to closure the
untold years of effort that have gone into this work and
brought everyone this far.
We have submitted written testimony, Mr. Chairman, which
contains detailed comments on the legislation, but what I would
like to do at this time is to observe that from the
Department's standpoint, we are within striking distance of
success, and one never knows when a window of opportunity is
presented like it is here. If the parties don't take that
opportunity to close the final gap, the window may never open
again, or it may be decades down the road.
The window is open. We are within striking distance, and we
pledge on behalf of the Department our utmost efforts to work
with this Committee and Mr. Kyl in the Senate to bring this to
closure, because it is good for the State of Arizona. We trust
it will be good for the State of New Mexico. And it will be a
key part of providing certainty for resource users in those
States.
We would observe that there are three areas that need
particular attention. First of all, the funding mechanism that
is in H.R. 885 is innovative but does not follow the normal
appropriations process. The administration is currently
studying that funding mechanism to determine if it is an
appropriate way to provide the certainty for funding that is
required under the settlement stipulation and other aspects of
this compromise.
Second, as this Committee well knows, the Department, the
Secretary of Interior, has trust responsibility to Native
American tribes which extend to all tribes, and in particular
we would encourage the parties to redouble their efforts to
address issues relating to the San Carlos Apache Tribe so that
all of the in-basin issues in Central Arizona can be resolved
and we don't end up leaving an important part unresolved and
potentially a source of concern in the near future.
Third, the Department deeply desires that the States of
Arizona and New Mexico find common ground so that both may move
forward and attain the goals of the 1968 Act. We are
comfortable that the delegations of these two States that we
treasure will be able to do that and we will lend our efforts
if that is helpful, or if it is helpful for us to stay back and
stay out of the way, we will do that, as well.
With that, Mr. Chairman, I would direct any other questions
to the written testimony and would like to allow Assistant
Secretary Martin to make any comments that she has. Thank you.
[The prepared statement of Mr. Raley follows:]
Statement of Bennett W. Raley, Assistant Secretary for Water and
Science, U.S. Department of the Interior
Good morning Mr. Chairman and members of the Committee. I am
Bennett W. Raley, Assistant Secretary for Water and Science at the
Department of the Interior. I am accompanied by Aurene Martin, Acting
Assistant Secretary for Indian Affairs. I appreciate the opportunity to
appear before this Committee to discuss H.R. 885, a bill to authorize
the Arizona Water Rights Settlement Act of 2003.
H.R. 885 is the single most far-reaching piece of federal
legislation regarding water use within Arizona since Congress
authorized the Central Arizona Project thirty-five years ago. H.R. 885
is an impressive and complex bill, designed to provide a comprehensive
resolution of critical water use issues facing the State of Arizona,
and Arizona Indian tribes today. This legislation provides certainty
regarding the use of water in Arizona in a number of ways: It provides
water to settle outstanding water rights claims of certain Arizona
tribes; provides financing of infrastructure so that all tribes can put
CAP water to use; and it provides water for future water rights
settlements. It also provides water necessary to accommodate the
explosive population growth in the cities of central Arizona; it
provides certainty for farmers who currently utilize imported water
supplies from the Colorado River; and it also provides a mechanism to
secure water to protect against future droughts. These arrangements,
necessary to all users of Colorado River water in Arizona are
accomplished utilizing local tax revenues to accomplish the financing
of all undertakings under the global settlement embodied in the
legislation.
The Administration supports the core concepts of the settlements
that are achieved through H.R. 885 and the overarching goal of
resolving many important water challenges facing the State of Arizona,
with the caveats discussed below. We believe that the comprehensive
approach that is embodied in H.R. 885 is the right way to resolve these
longstanding disputes regarding the use of the CAP and this portion of
Arizona's allocation to the Colorado River.
Before providing detailed comments on particular provisions of the
bill, some of which will require addressing outstanding concerns, it is
necessary to review the overall structure and goals of H.R. 885. As we
move forward, this Administration remains committed to working with the
Committee, Congressman Hayworth, Senator Kyl, and the settlement
parties to reach mutually agreeable solutions to all remaining issues.
The resolution of these outstanding issues is an extremely high
priority for the Department of the Interior.
Background
Even in the days before statehood, Arizona's leaders saw the need
to bring Colorado River water to the interior portions of the State.
During the 1940's and ``50's California developed facilities allowing
the utilization of more than its apportionment from the Colorado River
and quickly began full use of its share of the river, and more. During
that same time, Arizona began developing its own plans for utilization
of its 2.8 maf apportionment. However, California effectively prevented
Arizona from implementing its plans, arguing that development and use
of water from Colorado River tributaries within Arizona counted against
its apportionment and limited significant additional development and
diversion from the mainstream by Arizona.
Unable to reach resolution on this issue, in 1952 Arizona brought
an original action in the U.S. Supreme Court, asking the Court to
clarify and support Arizona's apportionment from the Colorado. After 12
years of fact finding by a Special Master and arguments by the two
states, the Supreme Court issued a decision in 1963 affirming Arizona's
2.8 maf apportionment.
Despite Arizona's victory in the Supreme Court, California was
still able to extract a final concession from Arizona. In exchange for
California's support of Congressional authorization in 1968 for the
Central Arizona Project (CAP), Arizona was forced to allow its CAP
water to have a subservient priority to California water use during
times of shortage on the Colorado River system. This was a significant
concession since CAP water use represents more than half of Arizona's
Lower Basin apportionment--approximately 1.5 maf of its 2.8 maf. The
CAP brings this critical supply from the Colorado River through Phoenix
to Tucson, Arizona, via a primary canal of more than 330 miles.
After decades of fighting to get the CAP authorized and
constructed, in the early 1990's Arizona faced financial and water
supply disputes over how the Project--and the State's allocation from
the Colorado River--would be utilized.
For most of the 1990's uncertainty existed for Arizona: uncertainty
over who would receive water from the CAP, and uncertainty over the
costs of the project and who would repay those costs. Perhaps most
importantly to the State, uncertainty existed over the ability of the
State to store water and protect against the eventual shortages on the
Colorado--which have a unique impact on Arizona water users due to the
junior status imposed by Congress in 1968.
The uncertainty also involved complex and contentious litigation
filed in 1995 between the federal government and the Central Arizona
Water Conservation District, the political entity which operates the
CAP and repays the local costs of the project. After years of
litigation over the CAP, extensive negotiations were conducted to
resolve the complicated CAP issues so that the needs of all project
beneficiaries would be adequately addressed.
During these discussions it became clear that financial repayment
and other operational issues could not be resolved until there was a
firm agreement on the amount of CAP water that would be allocated to
federal uses, i.e., allocations to Indian tribes in Arizona. When these
discussions were initiated, 32% of the CAP water was allocated for
Federal uses, 56% for Non-Federal uses and 12% was un-contracted.
Both the United States and the State of Arizona were interested in
dedicating un-contracted water to allow settlement of outstanding
Indian water rights claims and to meet emerging needs for municipal
purposes. The amount of water needed for future Indian water rights
settlements within Arizona turned in large part on consideration of the
large pending claim of the Gila River Indian Community (Community) in
the on-going general stream adjudication of the Gila River system. The
Gila River Indian Reservation encompasses approximately 372,000 acres
south of, and adjacent to, Phoenix, Arizona.
The claim filed by the United States on behalf of the Community in
the Gila River adjudication was for 1.5 million AFA. This represents
the largest single Indian claim in Arizona--and one of the largest
Indian claims in the West. If this claim were successful, the amount of
water available to central Arizona cities, towns, utilities, industrial
and commercial users, and major agricultural interests would be greatly
reduced.
Consequently, ongoing negotiations of that claim were put on a
parallel track with the CAP litigation negotiations, with the
understanding that tandem resolution of the issues would be necessary.
The underlying premise of the settlement that emerged--including the
framework of this legislation--is to achieve a comprehensive resolution
of all outstanding CAP issues. This, in turn, will allow sustainable
operation of the CAP in a manner that provides benefits and equitable
treatment to all intended project beneficiaries. The alternative,
piecemeal and sequential resolution of all of the outstanding disputes
on the CAP, would be doomed to fail.
The linkage embodied in this legislation integrates U.S.
obligations under Federal statutes and the trust relationship with
Indian tribes. As with the initial authorization of the CAP in 1968, we
are presented with a unique opportunity to provide a final settlement
of many of the complex Federal, State, Local, Tribal and private water
issues in the State.
In May of 2000, the Department and CAWCD reached agreement on a
stipulated settlement of the CAP litigation. This stipulation serves as
a blueprint for a comprehensive resolution of the suite of CAP issues I
have identified above. The stipulation requires that a number of
conditions must occur before it is effective or final. Under the
stipulation, these conditions must occur before December 2012 or the
stipulation will terminate.
The CAWCD v. U.S. settlement stipulation is contingent on
Congressional enactment of a Gila River Indian Community Settlement;
Amendment of the Southern Arizona Indian Water Rights Settlement
(SAWRSA); and the identification of a firm funding mechanism for the
CAP, GRIC and SAWRSA settlements.
Settlement Stipulation & H.R. 885: The Arizona Water Rights Settlement
Act of 2003
H.R. 885 approves three separate and significant settlements: the
settlement stipulation reached in the CAWCD v. U.S. litigation
(addressing CAP operational and repayment issues), the Gila River
settlement (addressing water rights claims of the Gila River Indian
Community), and the SAWRSA settlement (addressing water rights claims
of the Tohono O'odham Nation).
The basic structure of the stipulation developed in 2000 is
preserved in H.R. 885, subject to certain conditions. The main
components of the settlement contained in H.R. 885 are to provide: (1)
additional water to resolve tribal claims; (2) certainty regarding
allocation of available water supply; (3) additional water supplies for
Arizona's growing cities; (4) financial and operational certainty for
CAWCD (operator and repayment entity of CAP); (5) affordable water for
non-Indian agriculture; (6) appropriate repayment of CAP costs; (7)
structures and programs to bank water for Arizona's future; and (8) a
firm funding mechanism to provide affordable water to tribes, while
developing the infrastructure necessary to allow all of Arizona's
tribes to fully utilize their CAP supplies.
The structure of H.R. 885 represents Arizona's extensive efforts to
resolve these contentious issues. The bill is strongly supported by the
relevant Arizona State Agencies, Members of Congress with Arizona
constituencies, the Gila River Community, the Tohono O'odham tribe, and
a wide array of Arizona interests. In light of the diverse parties,
competing interests and longstanding controversies involved, H.R. 885,
if amended to address certain issues, represents the best prospect to
restructure the CAP in a context that reconciles the Public, Tribal and
Private interests--including statutory obligations of the United
States.
I will summarize each of the three titles contained in H.R. 885 and
comment on some of the provisions of each that are of concern to the
Administration.
Title I--Central Arizona Project Settlement
The critical components of the CAP stipulated settlement are set
forth in Title I of H.R. 885. They include: (1) a final allocation of
CAP water supplies so that 47% of Project water is dedicated to Arizona
Indian tribes and 53% is dedicated to Arizona cities, industrial users
and agriculture; (2) setting aside a final additional allocation pool
of 197,500 acre-feet for use in facilitating the GRIC settlement and
future Arizona Indian water rights settlements; (3) a final allocation
of 65,647 AFA of remaining high priority (M&I) water to Arizona cities
and towns; (4) relief from debt incurred under section 9(d) of the 1939
Reclamation Projects Act by agricultural water uses, which allows these
users to relinquish their long-term CAP water contracts so that the
water can be used for the Indian water rights settlements and future
municipal use; and (5) allowing the Colorado River Lower Basin
Development Fund (LBDF), the Treasury fund where CAP repayment funds
are deposited, to be used for the costs of Indian water rights
settlements, completing tribal water delivery systems and reducing the
cost of CAP water for tribes to affordable levels.
H.R. 885's utilization of the Colorado River Lower Development Fund
is intended to meet the terms of the stipulation by providing for,
among other things, subsidizing fixed OM&R costs for Indian tribes,
including OM&R costs for the Gila River Indian Community,
rehabilitation of the San Carlos Irrigation Project (SCIP),
construction of Indian Distribution Systems, and funds for future
Indian water settlements.
The financing mechanism assumed in H.R. 885 is complex, and
operates outside of the normal annual appropriations process. Given
this, the Administration is currently reviewing the funding provision
to determine whether it is an appropriate way to satisfy the
contingencies of the settlement. There may be other funding mechanisms
that meet the firm funding requirement of the settlement. We look
forward to working with the Committee on this issue.
Title II--Gila River Indian Community Water Rights Settlement
Title II of H.R. 885 is the Gila River Indian Community Settlement.
This settlement would resolve all of the Community's water rights
claims in the general stream adjudication of the Gila River system,
litigation that covers much of the water supply of central Arizona.
This litigation has been the subject of negotiation and settlement
talks for more than 13 years.
The major components of the settlement are: (1) confirmation of
existing, and dedication of additional, water supplies for the
Community in satisfaction of its water rights claims; (2) use of
existing facilities to deliver the additional water supplies; (3)
funding for on-Reservation agricultural development; and (4) protection
of the Reservation groundwater supplies.
While the United States supports a settlement of the Gila River
Community's water claims, and believes the majority of the provisions
of the Settlement Act in this title are consistent with that objective,
we do have concerns, detailed below, that we want to work on with the
Committee, Congressman Hayworth, Senator Kyl and the various parties to
promptly resolve.
A. Inclusion of a Settlement with the San Carlos Apache Tribe
In resolving the water rights claims of the Gila River Indian
Community, we must remain mindful not to place the United States in a
position of having conflicting obligations to two Indian tribes. The
Gila River Indian Community and the San Carlos Apache Tribe have
reservations and existing decreed water rights in the same watershed.
In litigation underlying the settlement, the United States has argued
in favor of both the Gila River Indian Community's and the San Carlos
Apache's water rights under the 1935 Globe Equity Decree. That Federal
Consent Decree addresses the water rights of those tribes, as well as
the rights of most non-Indian water users, in the mainstem of the Gila
River above the confluence of the Gila and Salt rivers. The GRIC
settlement will alter operations under the Gila Decree. These changes
have the potential to impact the rights of the San Carlos Apache Tribe.
We believe that additional efforts to resolve the concerns of the
San Carlos Apache Tribe should be taken, and Interior has engaged in a
serious effort to do that. The Department has taken a number of steps
in this regard and is prepared to do more. Interior officials have met
with the San Carlos Tribal leaders on numerous occasions, and our
sincere hope is that we can reach resolution on a wide array of issues
so that agreement on the San Carlos Apache Tribe's water rights can be
added to this legislation as it proceeds. We look forward to working
with the Committee and the Tribes on this matter.
B. Waivers of the United States Enforcement Authorities
H.R. 885, as introduced, also includes significant waivers of the
United States' ability to enforce environmental statutes relating to
water quality in the Gila River basin The settling parties seek to
limit their exposure to environmental liability. However, the
Administration believes the waivers, as currently drafted, may provide
undue immunity from environmental liability and shift costs for cleanup
to the Federal government. This could restrict the ability for the
federal government to clean up the most contaminated waste sites in the
Gila River Basin. For example, the legislation waives claims by the
United States against both parties to the settlement as well as non-
parties. As drafted, this legislation can also be interpreted to
provide a waiver for future claims under certain environmental
statutes, including those under the Superfund authority. This could
restrict the ability for the federal government to cleanup the most
serious hazardous waste sites in the Gila River Basin. These water
quality waivers were not included in prior water rights settlements
affecting Indian Tribes and are not necessary in this legislation.
Following the introduction of H.R. 885, the Department of Justice
entered into discussions with the settlement parties regarding the
waivers. These discussions continue to progress. The Administration is
committed to continuing these discussions to find a solution to these
significant issues, as this legislation must maintain the Federal
government's ability to protect human health and environment.
C. Overly Broad Waiver of the United States Sovereign Immunity
The Administration also is concerned, as we believe that H.R. 885
contains an overly-broad waiver of United States sovereign immunity. We
believe that this provision is unnecessary, as sovereign immunity
waivers in the McCarran Amendment allow a suit against the United
States to administer its adjudicated water rights. Further, if such a
waiver is retained, it should be narrowly drafted. The Administration
also has some concern about the scope of certain waivers under Section
312 of the bill.
D. Impacts of the Intended Water Exchanges
H.R. 885 authorizes several water exchanges between the Community
and various parties in the State, including the Phelps Dodge
Corporation, ASARCO and several municipalities in the Upper Gila River
watershed. While we support the mechanism of water exchanges, we want
to work with the committee to ensure that the current language
adequately takes into account the water rights of the San Carlos Apache
Tribe, parties affected in the State of New Mexico (under the Colorado
River Basin Project Act), listed species and critical habitat under the
Endangered Species Act (ESA), and rights to divert water in relation to
the Globe Equity Decree. Previous analyses indicate that appurtenant
structures and dams involved in this agreement could lead to more
extensive and frequent Gila River drying, which, in turn, could lead to
potential ESA conflicts.
E. Fifth Amendment Takings Concern
Title II places the ownership of all settlement water in the hands
of Gila River Indian Community, notwithstanding the fact that the Gila
Decree (the 1935 Globe Equity Decree) framed its award under that
Decree ``for the reclamation and irrigation of the irrigable Indian
allotments on said reservation.'' We would like to refine the language
of the bill to reduce the likelihood that an individual allottee may
assert a ``takings'' claim based on the settlement. Both Interior and
Justice are committed to working with the settlement parties and the
proponents of H.R. 885 to reduce any risk of a Fifth Amendment taking
and to assure that the rights of individual Indian allottees are
protected.
F. Costs Associated
Federal contributions to the proposed settlement within this Title
include the fulfillment of existing statutory and programmatic
responsibilities and the assumption of new obligations designed to put
GRIC in a position to utilize the water resources confirmed or granted
in the settlement. There are also numerous costs contained within this
title, which the United States does not believe are reasonably related
to the costs avoided and benefits received, and we look forward to
working with the Committee, Congressman Hayworth and Senator Kyl prior
to further consideration of this legislation to ensure the costs
contained in the legislation are appropriate.
For example, given the correlative benefits, we support the
rehabilitation and completion of the Indian portion of the San Carlos
Irrigation Project (SCIP)--an irrigation project that was initiated in
the 1930's but never completed and which has fallen into significant
disrepair. However, we believe that the language of H.R. 885, requiring
the Secretary to provide for the ``rehabilitation, operation,
maintenance and replacement'' of the San Carlos Irrigation Project,
needs to be refined. Our view is that both the cost control and
indexing mechanisms for these expenditures need to be revisited.
Similarly, when looking at the government's cost of addressing
subsidence damages on the reservation, we recognize the settlement
requires the United States to repair past and future subsidence damage.
We believe that federal liability for such damages should be limited.
Additionally, in some instances we believe that existing costs have
been shifted from State parties to the United States, and those costs
may be more appropriately addressed by other existing Federal programs.
We believe disbursements from the Lower Basin Fund should be limited to
those costs which have a direct relationship to the core concepts of
the settlements addressed in H.R. 885.
We also believe that a closer look should be given to some of the
costs included in the provisions of Title II, dealing with the Upper
Gila River. One example is the costs identified to line San Carlos
Irrigation and Drainage District (the non-Indian component of SCIP)
canals so that water can be conserved. The Administration supports this
concept but believes a greater share of the conserved water should be
provided to the United States for possible use in settling the San
Carlos Apache Tribe's water rights claims in the Gila River.
Title III--Amendments to the Southern Arizona Water Rights Settlement
Act (SAWRSA)
The Southern Arizona Water Rights Settlement Act, known as
``SAWRSA,'' Pub. L. 97-293, was enacted in 1982 to resolve Indian water
rights claims arising within the San Xavier and Shuk Toak Districts of
the Tohono O'odham Nation. SAWRSA did not settle all outstanding Tohono
O'odham water rights claims. Claims for the Sif Oidak District and
other Reservation lands remain to be settled.
As originally enacted, SAWRSA allocated 37,000 AFA of CAP water to
the San Xavier and Shuk Toak Districts of the Nation, together with
another 28,200 AFA of water to be delivered from any source by the
United States to the Districts. All of the water is to be delivered
without cost to the Nation. The original settlement also requires the
United States to rehabilitate and extend an historic allottee farming
operation and design and construct irrigation facilities sufficient to
put remaining settlement water to use.
Construction of all irrigation facilities and the full
implementation of SAWRSA has not occurred, principally because of a
disagreement over proper allocation of settlement benefits between the
Nation and allottees within the San Xavier District. Because of this
disagreement, the allottees have refused to join in the dismissal of
United States v. City of Tucson, CIV. 75-39 TUC-WDB (D. Ariz.), the
litigation which lead to the enactment of the settlement. SAWRSA
requires the United States, the Nation and the allottees to dismiss the
litigation as a condition of full effectiveness of the settlement.
For over ten years, the Department of the Interior, the City of
Tucson and other state parties have been engaged in discussions with
the Nation and the allottees in an attempt to agree on amendments that
would resolve disputed issues. The Nation and the allottees have now
agreed on how settlement water resources and funds should be
distributed. The agreements between the Nation and the allottees are
contained in Title III of H.R. 885. Essentially, the Nation and the
allottees have agreed upon allocation of water resources, construction
of new irrigation facilities and sharing of settlement funds.
In general, the Administration supports these agreements and we
look forward to working with the Committee to clarify or refine a few
items we remain concerned about. Chief among these is the so-called
``net proceeds'' issue that revolves around the United States' ability
to make the Cooperative Fund a self-sustaining fund and potential
federal liability if it is not self-sustaining or is underfunded.
Conclusion
It is important to emphasize that the Administration fundamentally
supports this important settlement effort if it is amended to address
concerns discussed above, and we look forward to working with the
Committee to revise specific provisions of the legislation so that we
can support the bill without reservation.
The Administration lauds the tremendous efforts dedicated by all
parties to find a workable solution to this complex set of issues and
supports the core settlement concepts and framework as set forth in
H.R. 885. We recognize that this legislation will resolve long-standing
and critical water challenges facing the State of Arizona. We look
forward to working with the Committee, Congressman Hayworth, Senator
Kyl, and the settlement parties to craft legislation that accomplishes
these goals in a manner that comports with Federal financial policy and
legal considerations.
This concludes my testimony. I would be pleased to answer any
questions that the members of the Committee may have.
______
[Mr. Raley's response to questions submitted for the record
follows:]
Response to questions submitted for the record by Bennett W. Raley,
Assistant Secretary for Water and Science, U.S. Department of the
Interior
Question:
It is my understanding that numerous Indian water rights
settlements (including the following Fort McDowell, P.L. 101-628 (1990)
Sec. 410(a) and San Carlos Apache, P.L. i02-575 (1992) Sec. 3709(a))
include a provision that ensures that environmental impact of the
components of the settlement agreement and legislation are subject to
environmental review subsequent to execution by the Secretary. Can you
assure the Committee that this provision is now routinely included in
Indian Water rights settlements, including the Arizona Water
Settlements Act?
Answer:
As noted by the Committee, it is common for Indian water rights
settlement legislation to include provisions that address environmental
compliance regarding actions during the implementation phase of
settlements. The Department has consistently carried out all necessary
environmental compliance documentation for such implementation actions
and will continue to do so. The specific provisions of individual
Indian Water rights settlements in this regard are the result of
negotiations among the Tribe, the Department, and other relevant
stakeholders. In addition, these negotiations often include the
participation of potential Congressional sponsors and Congressional
staff. While common, it is difficult for the Department to assure the
Committee that similar language will be included in all proposed Indian
Water rights settlements. As an example, it is appropriate to note that
the two cited settlements include distinct provisions regarding
environmental compliance. Compare Ft. McDowell Indian Community Water
Rights Settlement Act of 1990, Pub. L. 101-628, Sec. Sec. 410(a)-(d)
(1990) with San Carlos Apache Tribe Water Rights Settlement Act of
1992, Pub. L. 102-575, Sec. Sec. 3709(a)-(d) (1992).
With respect to efforts pursuant to the proposed Arizona Water
Settlements Act, the Department began work in 1999 on an Environmental
Impact Statement on the allocation of CAP water supply and long-term
CAP contract execution. In June of 2000, the Department published a
Draft EIS on this effort. Appropriations restrictions prevented further
work on this EIS subsequent to the publication of the Draft EIS. At
this time, however, such restrictions have lapsed and the Department is
now preparing to reinitiate the EIS process to allow the contracting
actions identified as part of the settlement alternative to move
forward in advance of the finalized legislation.
______
Mr. Calvert. Assistant Secretary, you are recognized.
STATEMENT OF AURENE MARTIN, ACTING ASSISTANT SECRETARY FOR
INDIAN AFFAIRS
Ms. Martin. Good morning, sir. I would only echo what Mr.
Raley has already stated. We are supportive of the core
concepts contained in H.R. 885 because they resolve
longstanding significant issues for both the Tohono O'odham and
the Gila River Indian Community and we believe that they
provide sufficient flexibility for resolving other disputes in
the State of Arizona.
We do have some outstanding issues which we do need to
resolve, including the concerns of the San Carlos Apache,
resolution of some individual issues, and immunity and
environmental liability issues. But we are very optimistic
about our ability to resolve those issues and look forward to
working with the different parties. Thank you.
Mr. Calvert. Thank you.
I would now like to recognize Mr. Steven Hickok to testify
on H.R. 1753.
STATEMENT OF STEVEN G. HICKOK, DEPUTY ADMINISTRATOR, BONNEVILLE
POWER ADMINISTRATION
Mr. Hickok. Thank you, Mr. Chairman and members of the
Subcommittee. With your permission, I will submit my written
testimony for the record.
Mr. Calvert. Without objection, so ordered.
Mr. Hickok. I am Steve Hickok, Deputy Administrator of
Bonneville. The administration, while it is unable to support
H.R. 1753 as it is currently drafted, we are definitely in
interest of reaching a fair and final settlement of these
issues with the Spokanes. I think in my 5 minutes, I would best
serve the Subcommittee by focusing on the two issues that have
stood in the way of our reaching a settlement with the Spokanes
over the past half-dozen years or so and highlight an issue
that may be in front of us if and when we go forward.
First, the method we used in arriving at compensation for
the Colville Tribes, if applied to the Spokane Tribe situation,
would result in payments to the Spokanes that would be about 19
percent of the amounts that are currently being provided to the
Colvilles, not the 39 percent that is currently in the
legislation, and the reason is that the method that we used,
one of three that we evaluated when we were negotiating with
the Colvilles and that had been proposed for use in other
situations like this or actually used in the past, the method
we used divided the value of the land differently between what
is under the reservoir and what is under the dam, and it
literally provides half the value of the project to the
relatively few acres under the dam and the other half to the
relatively large number of acres under the reservoir.
The Colvilles had acreage under the dam and the Spokanes do
not, and that is very simply the reason why, if you just do a
fraction of the acreage involved under the reservoirs, which is
the proposal of the bill, you get 39, whereas the method we
used in the Colville settlement produces about half that
amount.
The second big issue is that while the Colvilles had made a
claim and brought suit against the government for past damages
in the window provided under the Indian Claims Act, and the
Spokanes had not, we have been willing to establish a sharing
of Grand Coulee power revenues on a going-forward basis, but we
haven't been willing to resurrect the past damages issue,
leaving that closed, basically, after 1951.
Now, having summarized those positions on the two big
issues, I should hasten to say that both parties have explored
departures from their positions on these issues. Congressman
Nethercutt mentioned, for example, that the Spokanes, while
holding to their past damages position, had at one point
proposed splitting the difference with us between 1939 at 29
percent on the value question. And Bonneville, while holding to
the 19 percent position, had at one point in these discussions
proposed back-casting 10 years back and structuring a
settlement that would provide payments to the Spokanes
beginning as if they had begun exactly at the moment that we
had settled with the Colvilles. It would pick up the years
roughly since 1994 to the present date.
Neither of those concessions by the two parties, though,
resulted in a package that either one could support, and in the
end, we are back where we started from.
The third issue, look forward, and one that is probably
more significant now than pre-2001, is the rates issue on
Bonneville's ratepayers. Back in 2001, Bonneville instituted a
45 percent rate increase and that increased the power component
of people's bills by 50 percent, from 22 mils a kilowatt hour
to 32. And just to put that in perspective, while 1,000
kilowatt hour residents would see the wholesale power component
of their bill go up $10 a month, from $20 to $30, the 100,000
megawatt hour a month aluminum smelter would see their monthly
power bill go up from $2 million to $3 million a year, and that
happened in 2001.
We proposed another rate increase to go into effect in
October of this year of another 15 percent, and as your
colleagues from the Northwest can attest, there has been a
firestorm about whether or not the Northwest economy can stand
that, and we took $381 million out of Bonneville's cost
structure for the next 3 years in order to bring that increase
down from 15 percent to 2 percent, and that is what we put into
place yesterday.
So what would a settlement mean in terms of the cost to the
ratepayers of a Colville-type settlement? Well, if you used the
H.R. 1753 and it would result in about a $5 million a year
additional cost to Bonneville, that is a sixth of a mil per
kilowatt hour, so that 1,000 kilowatt hour house would pay an
extra 17 cents a month. It sounds pretty reasonable. And the
100,000 megawatt hour a month smelter would pay another $17,000
a month in their power bill, and I think that pretty well
frames the issue.
Thank you, Mr. Chairman.
Mr. Calvert. I thank the gentleman.
[The prepared statement of Mr. Hickok follows:]
Statement of Steven G. Hickok, Deputy Administrator,
Bonneville Power Administration
Mr. Chairman, my name is Steven G. Hickok. I am the Deputy
Administrator of the Bonneville Power Administration (Bonneville). It
is my pleasure to appear before the House Resources Committee,
Subcommittee on Water and Power. Bonneville appreciates the opportunity
to comment on H.R. 1753, the Spokane Tribe of Indians of the Spokane
Reservation Grand Coulee Dam Equitable Compensation Settlement Act.
My testimony today will focus on the discussions Bonneville has had
with the Spokane Tribe and the proposal the prior Administration made
to the Spokane Tribe in response to its request for compensation
related to the construction of Grand Coulee Dam. I will also compare
that proposal to what would result for the Spokane Tribe if H.R. 1753
were enacted. Finally, I will address the present Administration's
concerns with the proposed legislation. Although the Administration is
committed to appropriate compensation for the Spokane Tribe, it is
unable to support the legislation.
First, let me set out the factual background that gave rise to the
Spokane Tribe's request for compensation, which affects our view of the
current situation.
Factual Background
This matter arose out of representations made by Federal officials
to the Spokane Tribe and the Confederated Tribes of the Colville
Reservation when Grand Coulee Dam was under construction in the 1930s.
Approximately 2,500 acres of land within the Spokane Reservation and
6,900 acres of land within the Colville Reservation were taken for use
in the Grand Coulee Project. Originally, the State of Washington
planned to develop a hydroelectric project at Grand Coulee. An agency
of the state obtained a preliminary permit under the Federal Power Act
to develop the site. Had the state built the project, a license issued
under the Federal Power Act would have provided the Spokane Tribe and
the Colville Tribes compensation for use of their lands in the Grand
Coulee Project. In 1933, however, Congress authorized Federal
construction of Grand Coulee Dam as part of the Columbia Basin Project,
to be developed and administered by the U.S. Bureau of Reclamation.
Federal projects are not subject to licensing under the Federal Power
Act.
That same year, Secretary of the Interior Harold Ickes approved two
letters from the Department of the Interior--one to the Supervising
Engineer of the Grand Coulee Project and one to the Commissioner of
Reclamation--indicating that, because Spokane and Colville Tribal land
would be taken for the project, each of the Tribes should receive a
share of the revenue from the sale of power produced by the dam. The
following year, the Assistant Director of Irrigation wrote the
Commissioner of Indian Affairs, proposing that the Tribes be paid an
appropriate percentage of the ``profits'' of the project based on the
amount of Reservation land beneath the dam and the reservoir. He
proposed that half of the value of the project be ascribed to the dam
and half to the reservoir, and that the Spokane Tribe participate in
proportion to the Reservation's contact with the reservoir only, as the
Spokane Tribe had no land under the dam.
The Government did not act on this proposal, nor did it determine
what might be an appropriate share of revenues for either Tribe. In
1946 Congress passed the Indian Claims Commission Act (ICC), creating a
five-year window in which Indian tribes could sue the United States for
past harms. The Colville Tribes brought suit under the Act for a share
of the power revenues of Grand Coulee Dam. Although the Spokane Tribe
brought suit against the Government under the Act for other claims, it
did not bring a suit for a share of Grand Coulee's revenues prior to
settling its ICC claim.
Settlement With the Colville Tribes
Bonneville has marketed the power from Grand Coulee Dam since the
dam began operations in 1942. Therefore, although Bonneville was not a
named party to the Colville Tribes litigation, Bonneville understood
that the power function--among the other, multiple functions of Grand
Coulee--and its users (the Bonneville ratepayers) would likely be
expected to bear a share of any judgment in the case. Together with the
Department of Justice, Bonneville entered into discussions with the
Colville Tribes to settle the Colville's lawsuit. The parties reached
agreement in 1993, and legislation was passed in 1994 approving the
settlement and directing payment of the settlement amounts to the
Colville Tribes.
The settlement value was based largely on a formula that had been
used to compensate the Flathead Indian Tribe when the Tribe's land was
taken by a private entity for the development of Kerr Dam. It also
included a litigation risk premium in recognition of the financial risk
to the Government in proceeding to trial if the case did not settle.
The settlement payments included two elements. First, the Colville
Tribes in total were paid a lump sum of $53 million from the Judgment
Fund (a fund available to pay certain court judgments against the
United States, and any Justice Department settlements of litigation) to
compensate them for use of their land from 1942, when Grand Coulee
began operations, to the time of settlement. Bonneville was not
obligated to reimburse the Judgment Fund for any of this amount.
Second, Bonneville agreed to make annual payments to the Colville
Tribes going forward. These payments represent a share of the revenue
from the sale of the power from the dam. The first payment was for
$15.25 million for Fiscal Year 1995. Subsequent payments have been
governed by a formula based on the annual value of power produced by
Grand Coulee. Under the 1994 legislation enacting the settlement and a
subsequent 1996 amendment, Bonneville receives an annual credit for its
repayment to the Treasury that covers a portion of Bonneville's payment
to the Colville Tribes. The credit was $15.86 million in Fiscal Year
1997, and increased annually until Fiscal Year 2001, when it was $18.55
million. Since Fiscal Year 2001 the credit has been fixed at $4.6
million, and Bonneville will receive an annual credit of $4.6 million
as long as it continues making payments to the Colville Tribes.
Therefore, the percentage of the Bonneville payment that the credit
covers is changing through time. These credits, together with the
amount paid by the Judgment Fund, achieve the contribution of the U.S.
taxpayers to the settlement--30 percent of the settlement's value.
Bonneville's ratepayers are contributing 70 percent of the value of
approximately $570 million.
Discussions With The Spokane Tribe
On August 4, 1994, the Senate Indian Affairs Committee and the
Senate Energy and Natural Resources Committee held a joint hearing on
S. 2259, a bill that endorsed the settlement agreement with the
Colville Tribes. A representative of the Spokane Tribe testified at the
hearing, seeking an amendment to the bill to address the Spokane
Tribe's claims of damage from the project.
During full Senate consideration of the bill, which took place
during the prior Administration, Senators Daniel Inouye, Bill Bradley,
John McCain and Patty Murray engaged in a colloquy urging the
Department of the Interior and other relevant Federal agencies to enter
into negotiations with the Spokane Tribe to conclude a fair and
equitable settlement of the Tribe's claims. On August 5, 1994, Interior
Solicitor John Leshy wrote Senator Bill Bradley, indicating that the
Department of the Interior was reviewing information submitted by the
Spokane Tribe and would continue its examination. Subsequently,
representatives of the Department of the Interior and the Spokane Tribe
met on a number of occasions to discuss the Spokane Tribe's claims.
Bonneville then entered into discussions with the Spokane Tribe. In
1998 Bonneville representatives traveled to the Spokane Reservation to
explain the formula used in the Colville Tribal settlement and how it
might be applied to the Spokane Tribe's compensation request. In doing
this, Bonneville recognized the Spokane Tribe's current and future
contributions to the value of the project (from the continuing use of
former Reservation lands), but, because of the absence of a claim and
the lack of access to the Judgment Fund, indicated that it would not
address any past contributions.
Since 1998 Bonneville and the Spokane Tribe have met a number of
times to discuss appropriate compensation. Unfortunately, the two have
been unable to reach agreement. In the end the Spokane Tribe was not
satisfied with the going-forward payments that resulted when the
formula used to compensate the Colville Tribes was applied, and was
unhappy with the Administration's resistance to paying past damages.
On May 2, 2000, Bonneville Administrator Judi Johansen reiterated
the prior Administration's position on compensation in a letter to
Senator Murray. In the letter, Ms. Johansen underscored that the then
Administration did not support payments for any past periods, but was
prepared to discuss again the possibility of prospective annual
payments of a share of Grand Coulee power revenues, based on the
methodology employed in the Colville Tribes' settlement. She added that
it would also be reasonable to discount these payments because, unlike
the Colville Tribes, the Spokane Tribe had no legal claim. Finally, she
stated that it was the Administration's position that, consistent with
the cost-sharing arrangement between ratepayers and taxpayers adopted
in the Colville Tribes legislation, 70 percent of the value of any
compensation to the Tribe should come from Bonneville ratepayers and 30
percent from U.S. taxpayers.
If enacted, H.R. 1753 would compensate the Spokane Tribe at a level
that appears to be substantially in excess of the amount that the prior
Administration considered in previous negotiations. The bill would
establish in the Treasury an interest-bearing account called the
Spokane Tribe of Indians Settlement Fund Account. Section 5(b)(1) of
the bill would require the Secretary of the Treasury to deposit into
this account an amount equal to 39.4 percent of the lump sum paid to
the Colville Tribes, adjusted for inflation, to compensate the Spokane
Tribe for use of its land from June 29, 1940, to November 2, 1994.
The bill also would require the Administrator of the Bonneville
Power Administration to make two series of payments. First, Section
5(b)(2) would require the Bonneville Administrator to deposit into the
account each year for six years an amount equal to 7.88 percent of the
total annual payments made to the Colville Tribes from 1996 (when the
first annual payment was made to the Colville Tribes) through the end
of the fiscal year during which H.R. 1753 is enacted, adjusted for
inflation. Second, Section 5(c) of the bill would require the
Bonneville Administrator to pay the Spokane Tribe on an annual basis,
an amount equal to 39.4 percent of each annual payment that Bonneville
is making to the Colville Tribes in fiscal years after the date of
enactment of the Act.
Section 7 of the bill would require the Bonneville Administrator to
deduct from interest payable each fiscal year to the Secretary of the
Treasury, a percentage of each annual payment made to the Spokane Tribe
for the preceding fiscal year. The percentage deducted would be
calculated and adjusted to ensure that the Bonneville Power
Administration receives a deduction comparable to the deduction it
receives for payments made to the Colville Tribes under the
Confederated Tribes of the Colville Reservation Grand Coulee Dam
Settlement Act.
Finally, Section 9 of the bill would authorize an appropriation of
such sums as are necessary to carry out the Act.
In contrast to the payments that would be provided the Spokane
Tribe under H.R. 1753's provisions, Bonneville's estimate of going-
forward payments to the Spokane Tribe--based on the methodology
employed in the Colville Tribes settlement and taking into account the
difference between the amount of acreage taken from the Colville
Reservation and the amount taken from the Spokane Reservation--is about
19 percent of those provided to the Colville Tribes. During most of our
discussions with the Spokane Tribe we have also assumed that this
number should be discounted to reflect the lack of any claim filed
under the ICC.
More Discussions With the Spokane Tribe
During the Bush Administration and Administrator Steve Wright's
tenure, Bonneville continued discussions with the Spokane Tribe.
Bonneville advanced a number of it own proposals to the Spokane Tribe
that were outside the framework approved by the prior Administration in
the hope that these proposals could bring prompt resolution of this
issue. None of these proposals were embraced by the Spokane Tribe as
acceptable for settlement, and so Bonneville has not pursued approval
of them in the present Administration. None of these proposals remain
on the table. We advanced them in a spirit of reaching closure
promptly. Bonneville did not advance them as proposals the Spokane
Tribe could accept as a starting point and then build on to pursue
additional compensation. Without agreement by all the Federal and non-
Federal parties, the Administration is without a proposal for an
appropriate settlement. The Administration is willing to resume working
with the tribe to reach a fair settlement. At the appropriate time, the
Administration would want to discuss the potential funding mechanisms.
Conclusion
Mr. Chairman, in closing I want to reiterate that the Bush
Administration is supportive of reaching a fair and final settlement
with the Spokane Tribe. I stand ready to answer any questions you may
have.
______
[Mr. Hickok's response to questions submitted for the
record follows:]
Response to questions submitted for the record by Steven Hickok, Deputy
Administrator, Bonneville Power Administration, from Congressman Ken
Calvert on H.R. 1753
Failed Negotiations
Q1. Why have negotiations between Bonneville and the Tribe failed?
A1. I believe there are three reasons that negotiations have not
resulted in an agreement. First, Bonneville believes that any agreement
with the Spokane Tribe should be based on the methodology employed in
the Colville Tribes settlement. This methodology provides a principled
basis for compensating the Spokane Tribe. The Tribe has not accepted
the applicability of the Colville methodology.
Second, the lump sum that the Government paid to the Colville
Tribes for past use of their lands was paid out of the Judgment Fund,
in settlement of the Colvilles' lawsuit. Because the Spokane Tribe does
not have a legal claim, the Judgment Fund is unavailable to pay the
Spokane Tribe for past use of its land, and Bonneville has not been
willing to make up any such amounts. Bonneville was not responsible for
any part of the lump sum that was paid to the Colville Tribes, and it
has been adamant in its refusal to assume this obligation with regard
to the Spokane Tribe.
Third, the Spokane Tribe may view Bonneville's proposals as
starting points from which the Tribe can build its pursuit of a larger
compensation through legislation. H.R. 1753 appears to reflect this
kind of strategy, as it adopts the Tribe's original position in
negotiations from more than five years ago.
Middle Ground
Q2. Do you believe there is middle ground on this issue?
A2. H.R. 1753 represents the Spokane Tribe's original position in
this negotiation, which is poles apart from BPA's. We will not find
middle ground between these two positions if the Spokane Tribe believes
it can expect to get H.R. 1753 passed in its current form.
Through the history of these negotiations, both parties have
amended their positions at different points in the negotiations in
search of ``middle ground'' that might support a fair solution. We will
continue to try to find a compromise. BPA is committed to appropriate
sharing of Grand Coulee revenues with the Spokane Tribe. We also will
likely need the implementation assistance of Congress if and when we
reach an agreement.
No Back Payments without Pending Claim
Q3. How has the Spokane Tribe's statute of limitations problems
impacted the financial aspect of negotiations? Would this legislation
set a precedent by which a back payment is given to a tribe that did
not have a pending claim?
A3. As I testified, Bonneville has assumed that, because the
Spokane Tribe has no legal claim, payments to the Tribe should be
discounted. At one point Bonneville did advance an offer of annual
payments with no discount. This offer was outside of the framework
approved by the prior Administration, and was advanced in hope of
bringing prompt resolution to this matter. It failed to do so.
In addition, because the Spokane Tribe does not have a legal claim,
the Judgment Fund is unavailable to pay on any settlement. Therefore,
the taxpayers' portion of any settlement payments to the Spokane Tribe
would have to be provided through other means. As I stated above,
Bonneville has not been willing to assume any financial obligation for
its ratepayers that it did not assume in the Colville Tribes
settlement.
The question of possible precedent-setting potential of this
legislation is best directed to the Justice Department. It is
Bonneville's view that the Government compensated the Colville Tribes
because a specific promise was made to the Tribes to pay them a share
of the revenues of Grand Coulee Dam. The same promise was made to the
Spokane Tribe.
Rate Impacts of the Legislation
Q4. How would you build this bill's costs into the BPA's rates? Has
BPA heard from the customers on what this rate impact would have on
them?
A4. Under the bill as presently drafted, Bonneville would make an
initial payment of approximately $20 million and annual payments of
about $20 million per year for the following 4 or 5 years. At that time
the annual payment would decrease to approximately $6-8 million (in
today's dollars), and would be adjusted each year to reflect actual
power sales from Grand Coulee Dam. Bonneville would build these
payments into its rates as a power cost. The Fiscal Year 2004 payment
would increase our wholesale priority firm rate by about one-half of
one mill per kilowatt-hour (kwh). This would increase electricity bills
by about 50 cents per month for an average-sized home (1,000 kwh per
month) and about $50,000 per month for an aluminum smelter (100,000
megawatt hours per month). While we have not discussed a potential
Spokane settlement with our customers, customers have been quite clear
that we need to take all actions possible to reduce the upward
pressures on our rates.
Appropriate Time for Negotiations
Q5. Mr. Hickok, you mention that BPA would enter into new
negotiations at an ``appropriate time.'' When is an appropriate time?
A5. We are prepared to meet with the Spokane Tribe to renew these
negotiations at any convenient time.
______
Mr. Calvert. Mr. Raley, as you know, Secretary Norton has
made wise water management a focus of her tenure. Do you
believe that this settlement regarding H.R. 885 is consistent
with the Secretary's 2025 water initiative?
Mr. Raley. Yes, sir, in all respects. From the cooperative
approach to its identification of canal lining and efficiency
gains, this is one of the models that 2025 is based on.
Mr. Calvert. The Arizona bill also has a unique and complex
funding mechanism, as you mentioned in your testimony. Can you
explain how that funding works now and how it would be changed
under the bill?
Mr. Raley. Mr. Chairman, at the present time, revenues from
Arizona sources go into the Lower Basin Fund, which is not used
or identified for anything in particular. This mechanism would
create, in essence, a revolving fund where those revenues would
be pledged as a permanent source of funding for the
expenditures necessary to implement this legislation. That
funding mechanism is what is being reviewed at the present time
by the administration. A decision has not been made as to
whether it is appropriate. I can say, though, that from the
Department of Interior's standpoint, we are not aware of an
alternative mechanism that provides the certainty that is
required by the stipulation. We are open to finding whatever
works.
Mr. Calvert. How long do you think that will take?
Mr. Raley. Mr. Chairman, I believe that the administration
will need to be responsive to this Committee and this body's
needs as you move this legislation forward, and that will help
us reach closure on that issue.
Mr. Calvert. I thank the gentleman.
Mrs. Napolitano?
Mrs. Napolitano. There are many questions that I would like
to have. I still would love to hear more of the testimony from
the witnesses before I ask the questions. Will you be around,
Mr. Raley?
Mr. Raley. Unfortunately, I have to leave, but we will
certainly respond to written questions, or, Congresswoman, if
you would like, I can try to schedule a time to come back up
and meet with you and your staff this week or next week. I do
want to talk about a certain study that you and I discussed on
numerous occasions and would be happy to come up----
Mrs. Napolitano. I was going to ask about that, but I was
precluded.
Mr. Raley. Well, I appreciate the Chairman keeping us
focused, but we need to talk about that, as well, so I am sorry
I can't stay.
Mrs. Napolitano. Would you like a copy of it?
Mr. Raley. Pardon?
Mrs. Napolitano. Would you like a copy of it?
Mr. Raley. Well, actually, I directed that it be sent out
to the people that paid for it so they could review the draft,
so I hope we have the same copy.
Mrs. Napolitano. I trust. There is one question before you
leave, then, and I will be in trust with you later, Mr. Chair,
and I will share information with you for the record. How would
the bill affect the repayment of the Central Arizona Project
costs and the money that has been spent on non-Indian
irrigation water distribution systems?
Mr. Raley. As the Congresswoman is aware, there are aspects
of the legislation that address 90 repayment. We believe that
those aspects of the legislation are entirely appropriate,
given that the allocation of water for the Central Arizona
Project under this legislation is far different from what was
originally intended under the Central Arizona Project. Simply
put, it makes no sense to us, nor do we consider it to be fair,
to have the prior 90 repayment structure continue even though
the water is being allocated and used for other purposes.
Mrs. Napolitano. That is very, very interesting to not have
an idea of how that is going to happen.
The question then for Mr. Hickok would be, how soon can we
expect BPA to get together with the tribe to resolve these
outstanding issues and attempt to come to a settlement?
Mr. Hickok. We would be prepared to start it at any time.
There aren't any preconditions. And I think----
Mrs. Napolitano. Are you scheduled now to continue meeting
with them, I guess is my question.
Mr. Hickok. We are not at the present time.
Mrs. Napolitano. How soon would you be willing to meet with
them?
Mr. Hickok. We are ready at any time.
Mrs. Napolitano. Thank you. Mr. Chair, I don't have
questions right now.
Mr. Calvert. I thank the gentlelady.
Mr. Hayworth?
Mr. Hayworth. Thank you, Mr. Chairman.
Assistant Secretary Raley, I touched on it in my opening
statement, as did Vice Chairman Renzi and Senator Kyl, about
the whole notion of inclusion of the San Carlos Tribe. If the
bill is moved in its current form, in your opinion, is there
sufficient flexibility to accommodate a settlement of the San
Carlos Tribe?
Mr. Raley. Yes, sir.
Mr. Hayworth. The absence in this bill of a settlement with
the San Carlos Apache Tribe is a concern for us as well because
of the many reasons you have articulated in the written
testimony and as we have touched on earlier today. As Senator
Kyl mentioned, and I think it bears repeating, we have a
placeholder for water rights settlement for the San Carlos
Apache Tribe. It is our understanding the negotiation toward a
settlement are underway and the political and geographic
position of the tribe is important toward final solutions
toward water rights settlements on the Gila River.
From your perspective, can you delineate the efforts that
are underway to move this toward resolution?
Mr. Raley. Well, the Secretary's team has had numerous
meetings with the interested parties and will continue to meet
with them. It will be at increasing frequency and intensity
because of the need to resolve these issues as this legislation
proceeds. There were meetings in March and there is fairly
constant communication. We are ready, willing, and able to
engage at any time and commit to do so.
Mr. Hayworth. My friend, the Ranking Member, touched on the
notion of funding as we look at H.R. 885, and on the record,
Assistant Secretary Raley, do you agree with us that this bill
needs a firm funding source to work?
Mr. Raley. The stipulation entered for settlement of the
litigation requires that there be a firm funding source, first.
Second, from an equitable standpoint, the point that has been
made in the past by the Gila River Indian Community is that
paper water, or water that they can't use, is of ultimately no
value to them. A foundational aspect to this settlement has
been that it would provide the Gila River Community with actual
ability to use the water they are accepting under this
settlement. So from both a technical as well as an equitable
standpoint, we recognize that if this concept is moved forward,
there has to be a stable funding source.
Mr. Hayworth. As we look toward that stable funding source,
in your opinion, will the fund be exhausted by the requirements
of H.R. 885 prior to other tribes reaching water rights
settlements, and if not, what part of the Lower Basin
Development Fund would or could be available for use by other
tribes, such as the White Mountain Apache, for future water
development?
Mr. Raley. As the Committee knows, the revenues into the
fund are roughly $40 to $50 million a year. The actual outflow
from the fund would be dependent upon the implementation of the
construction schedule, so we cannot predict with precision
exactly what the cash-flow would look like. We are comfortable
that this bill could be implemented under that sort of a cash-
flow arrangement.
We can't tell at this point what the total cost would be
because of some of the open-ended aspects of the legislation,
such funds as required, et cetera, et cetera. But we are
comfortable that this approach, whether it is focused on this
funding mechanism, if that were to be the will of Congress, or
from a water standpoint, is fully consistent with the
Secretary's trust responsibility to all of the tribes that are
affected by this legislation.
Mr. Hayworth. I see my time is almost up. Just one question
I think can be answered fairly quickly. If the administration
did not settle these cases, what would the potential damages be
to the Federal Government?
Mr. Raley. The risk of litigation is very, very significant
and it is very clear to the administration that settlement is
in the best interests of the United States taxpayers, the
United States citizens, and that litigation should be the last
resort.
Mr. Hayworth. I thank you, Mr. Secretary, and thank you,
Mr. Chairman.
Mr. Calvert. I thank the gentleman.
Mr. Pearce?
Mr. Pearce. Mr. Chairman, Assistant Secretary Raley, the
18,000 square feet that were made available to New Mexico by
the 1968 bill. I am a little unfamiliar with it. Was that in
the form of water moving down the stream or in the form of
water that would potentially be stored? What form was that in?
Mr. Raley. Well, there is a need for an exchange agreement
to be worked out between the States and with Interior and we
are committed to moving forward and working out that sort of
exchange agreement. I believe originally that the contemplation
was that there would be a dam constructed in New Mexico that
would be used. That dam may not be the best--that particular
site may not be the most feasible or most appropriate way, and
the Department will be working with New Mexico to identify any
structures that would be necessary as well as institutional
arrangements for New Mexico to gain the benefits that were
intended under the 1968 Act.
Mr. Pearce. Mr. Raley, if the dam would not be the best
possible solution, what potential solutions would you see and
what recognition is there that every year that we don't have
the 18,000 acre feet available is a loss of income, a loss of
jobs, a loss of earning potential to people in that region?
Mr. Raley. I think it would be premature for us to identify
what would be the preferred course, which is why I can only
commit to New Mexico that the Bureau of Reclamation and the
other agencies within the Department of the Interior will work
with New Mexico and, of necessity, with the other Colorado
River Basin States to effectuate New Mexico's ability to gain
the benefits of the 1968 Act. We are not prepared today to
identify exactly how that should be implemented on the ground.
Mr. Pearce. And, Mr. Raley, I don't think that there are
provisions in this bill describing how that longstanding
obligation since 1968 even will be resolved at this point. Do
you foresee that that would be an addition to this bill? Would
it be a supplemental bill? Would it--how do we move that
forward? It has been one of the ongoing concerns of the Western
side of our State.
Mr. Raley. And legitimately so. We would leave to this body
and the Senate exactly the form, whether it is an addition to
this bill or a separate bill. We are, as I indicated, very
hopeful and desirous of the Arizona and New Mexico delegations
reaching an accommodation on this issue so that the needs of
both States can be met.
Mr. Pearce. Thank you, Mr. Chairman. My last question would
be that there is an outstanding need to settle an agreement
between the Navajo Nation and New Mexico to provide water for
Window Rock, and again, I wonder if there is any provision that
you know of that is moving forward to create a conclusion to
those needs?
Mr. Raley. I am aware that within the Department, we have
had a number of discussions on how to provide--to make that
happen from an institutional or legal framework arrangement,
and I know that is considerable interest and a focus within the
New Mexico delegation, yourself and Senator Domenici and others
to provide legislation that will give us direction on how to
meet those needs.
Mr. Calvert. I thank the gentleman.
Mr. Hickok, in your opinion, why have the negotiations
between the Bonneville Power Administration and the tribe
failed?
Mr. Hickok. Mr. Chairman, it is probably because the
Spokanes are encouraged to believe that whatever we might
arrive at out there might simply be the starting point to do
better back here. For example, H.R. 1753 adopts their
negotiating position, the position they took at the beginning,
which is poles apart from ours. So if they are encouraged to
believe that they can actually obtain that, it probably
wouldn't be worth anybody's time to continue negotiations.
But if, on the other hand, they were encouraged and we were
encouraged to go out and find a fair and equitable settlement,
recognizing that we should bring it back to you for its
approval and to effect it, put it into effect, that would be a
different dynamic.
Mr. Calvert. Well, in your opinion, do you believe that you
can find that middle ground? I asked that same question to Mr.
Nethercutt. Do you have any encouragement at all for that?
Mr. Hickok. I think we can. Yes, we can.
Mr. Calvert. Mrs. Napolitano asked a question about when
will these new negotiations begin, and you said any time, or
whenever that is appropriate. Does everybody agree to that,
both sides? I mean, are you willing to sit down immediately
rather than we have to go through this legislative process?
Mr. Hickok. We haven't discussed recently sitting down once
again and moving--trying to move forward from positions we have
taken in the past. I think the focus, frankly, has been to see
whether this could be legislated to a resolution that they
haven't been able to accomplish in negotiations.
Mr. Calvert. Well, I would certainly encourage you to find
that appropriate time and try to work this out. Obviously, we
are very interested in possibly moving some legislation if, in
fact, you are not able to negotiate this, and I think that is
possibly consistent with this Committee. So I am hopeful that
that can occur. We would much rather see negotiated settlements
rather than legislated settlements. It is a much better
solution to the problem.
With that, I am going to ask Mr. Hayworth to take over. I
apologize to the Committee and I will recognize Mrs. Napolitano
for additional questions.
Mrs. Napolitano. Just one last question that I had and it
had to do with the treaty with Mexico that you were referring
to, Mr. Raley.
Mr. Raley. I am sorry, could you repeat that? I didn't
hear.
Mrs. Napolitano. The treaty, the treaty with Mexico over
water release. Are we in compliance in releasing that water?
Mr. Raley. Yes, we are.
Mrs. Napolitano. You are? Is this the same treaty that
covers all the rivers that go into Mexico, or is it a separate
treaty from the Colorado and the Rio Grande?
Mr. Raley. No. Both the Rio Grande and the Colorado are
covered by, or addressed in, the 1944 treaty.
Mrs. Napolitano. Forty-four, so it is prior to 1968.
Mr. Raley. Well, the treaty addresses both Rio Grande and
the Colorado. The 1968, to my recollection, does not address
issues in the Rio Grande.
Mrs. Napolitano. OK.
Mr. Raley. I hope--did I misunderstand your question?
Mrs. Napolitano. No, no, you are right. I just wanted to
clarify that. There is an issue of water shortages along the
Rio Grande and I was wondering whether this is part of the same
treaty.
Mr. Hickok, I wanted to continue just a little bit further
on the sitting at the table with Bonneville and whether or not
you see that as being a peaceable solution at this point. Can
you sit down with the group, with the tribe, and look at it
from the perspective of moving forward and finding a solution,
as the Chairman had indicated, without the benefit of
legislative process?
Mr. Hickok. I think that is the preferable way to go. I
think that is what we would like to do. The negotiations we
concluded with the Colvilles were not a piece of cake, but we
were both smiling when we shook hands at the end of that. We
reached a settlement that we believe was good for the
government and good for the tribe, and we are prepared to do
that with the Spokanes.
Mrs. Napolitano. When was the last time you met with
Bonneville, the tribes on this issue?
Mr. Hickok. It was probably under the auspices of
Congressman Nethercutt, who convened a meeting in January--
January of last year.
Mrs. Napolitano. So about a year and a half ago?
Mr. Hickok. Yes.
Mrs. Napolitano. And any attempts been made to renegotiate
or sit down at the table since?
Mr. Hickok. Not since.
Mrs. Napolitano. Not since. Well, I look forward to talking
to the tribes and finding out if they have the same willingness
to sit at the table.
Mr. Hickok. Thank you.
Mrs. Napolitano. Thank you. Thank you, Mr. Chair.
Mr. Hayworth. [Presiding.] And we thank the Ranking Member
as well as this panel of witnesses. Thank you very much for
your time and your testimony.
Mr. Hayworth. And with that, I would like to recognize and
call forward the third and final panel of witnesses who join us
today in this hearing on these two bills.
The Subcommittee will welcome first Mr. Warren Seyler,
Chairman of the Spokane Tribe of Indians; Governor Richard
Narcia, who is Governor of the Gila River Indian Community; Ms.
Vivian Juan-Saunders, who is the Chairwoman of the Tohono
O'odham Nation; Mr. Joe Shirley is President of the Navajo
Nation, and we understand that President Shirley, who was with
us here yesterday, was unable to attend. Using the Chairman's
prerogative, I understand that Legal Counsel for the Nation is
here and the Subcommittee will make an exception to the rule
and allow Legal Counsel for the Navajo Nation to offer
testimony in the place of President Shirley Stanley Pollack, we
understand will provide that testimony.
Also here joining us today to testify on H.R. 885 is Ms.
Kathy Kitcheyan, who is the Tribal Chairwoman of the San Carlos
Apache Tribe. We also welcome Mr. Herb Guenther, the Director
of the Arizona Department of Water Resources, and Mr. Estevan
R. Lopez, Director of the New Mexico Interstate Stream
Commission.
We appreciate all the witnesses coming for this third panel
this morning, and as we take care of all the logistics and make
sure that literally all our witnesses have a place at the table
and access to the microphones, again, we welcome you. Many of
you have traveled great distances to be here today to discuss
these two pieces of legislation.
And so now, as I believe name plates and microphones are in
place, let us first recognize Chairman Seyler of the Spokane
Tribe of Indians. Welcome, Mr. Chairman, and we would
appreciate your testimony.
STATEMENT OF WARREN SEYLER, CHAIRMAN,
SPOKANE TRIBE OF INDIANS
Mr. Seyler. Thank you, Mr. Chairman and members of the
Subcommittee on Water and Power, for the opportunity to testify
on H.R. 1753. Accompanying me today is Howard Funke, our
attorney, and Dr. Charles Pace, our economist. Also joining us
is my Vice Chairman, Greg Abrahamson, and Tribal Council member
Dave Wynecoop.
I am here today on behalf of the Spokane Tribe to ask for
your help as representatives of the United States of America. I
ask that you act on behalf of the United States to finally
treat the Spokane Tribe fairly and honorably for the injury to
our tribe and reservation caused by the Grand Coulee Project.
My testimony today summarizes the critical need for this
important legislation. We are also providing briefing books for
the record and a video, if you allow them on the record,
please.
Mr. Hayworth. Without objection, those will be submitted
for the record.
Mr. Seyler. The Spokane Tribe is an honorable tribe, a
strong tribe, the tribe historically that has been a trusting
tribe. We are good to our word and strong for this nation.
Grand Coulee's waters flooded the lands of two sister Indian
reservations that held great economic, cultural, and spiritual
significance. Ours is one of those reservations.
Let me briefly say why I say sister reservations. The two
reservations lie directly across from each other on the
Columbia and Spokane Rivers. We have brothers and sisters that
live on both reservations. We have brothers and sisters that
are enrolled in both reservations. One sister may be Spokane,
the other brother may be Colville. We have families that are
joined. But yet this issue divides us. It is unfair.
Our life, culture, economy, and religion centered around
the rivers. We were a river people. We were a fishing people.
We depended heavily on the rivers and historic salmon runs that
were brought to us. We are known by neighboring tribes as
salmon eaters. The Spokane River, which was named after our
people, was and is the center of our universe. We call it the
``Path of Life.'' President Rutherford B. Hayes in 1881
recognized this importance and significance of the rivers to
the Spokane Tribe and expressly included the entire adjacent
river beds of the Spokane and Columbia Rivers within our
reservation. But the Spokane and Columbia Rivers now are
beneath the backwaters of the Grand Coulee Dam.
If I move forward, if I may, address the three issues that
BPA listed were troublesome for them. First, they indicated
that the method used in reaching settlement with the Colville
Tribe. I don't think this was completely accurate. In speaking
with the Colville Tribe and economists, and speaking with my
good friend, Eddie Palmenteer, who was the Chairman of the
Colville Tribe at that time, and I verified this just 2 or 3
days ago at a funeral of our former Chairman, he had said there
were formulas, but that is not what the agreement was reached
on.
He said they cut a money deal and cut it down the middle.
Later, we feel that Bonneville went out, went back after this
deal was cut, and then created a formula and made it work, so
much so, that there was a litigation premium of 13 percent that
was added. Why not 10 percent? Why not 15 percent? There was 13
so their formula could then work.
He also mentioned the ICCA Act of 1951. Understand that in
the 1950s, our tribe was very remote. We were 100 miles away
from the BIA office. All the communication was done in the form
of letters. Yes, we didn't have a claim, but until 5 months
before the 1951 deadline, we did not even have a formal
government. Our constitution was still being worked on. We
didn't have any method, really, to put our claims forward.
Our attorneys were not even hired until a few months before
the end of the 1951 deadline. It was held up back here in D.C.
in the Department of Interior in the Solicitor's Office. Back
then, they had to approve who could be our attorneys. They held
on to that approval until it was almost too late. We did get a
land claim, but back then, we did not know we could file a
claim on Coulee Dam. The Colvilles did not know they could file
on Coulee Dam. Their claim did not come until, I believe it was
in the 1970s, and they amended their claim.
And there were other issues that happened in 1967 when we
did finally file our claim, issues that were held and were not
given to the tribe. This, you can see in the report.
Also, they spoke about the rate issues, the 45 percent rate
increase. The Spokane Tribe did not cause this rate increase.
We still receive nothing. All we do is give and give and give
to this great nation. This is a great nation. We give our land.
The government uses our land every year to create such a vast
opportunity for this country to survive and to thrive. That dam
in the 1940s helped win World War II. All we ask is to be paid
to offer something for our contribution to helping do that.
Mr. Hayworth. Mr. Seyler, I wanted to intervene right now
because, first of all, I just want to thank you for your
testimony. We need to--and if I failed to mentioned this at the
outset, forgive me--we are trying to get the brief comments in
within a 5-minute parameter. If there is one final point you
would like to make here, that would be great. And again, I will
remind all assembled that your entire written testimony has
been submitted for the record and we will take that into
account. So let me respectfully ask you if you have one
statement in summary.
Mr. Seyler. Ninety seconds?
Mr. Hayworth. That would be fine, sir.
Mr. Seyler. Back home, in my travels over these last 13
years, many times they ask what the people back home really
feel. They feel we want to resolve this issue. They look back
at the words that were spoken, and Acting Solicitor Ashton
Brenner stated, ``The government overlooked the prohibition
against the guardian seizing the property of its own ward''--
the tribe is that ward--``and then profiting from that
seizure.''
One other statement from Chief Justice Blackman. ``Great
nations, like great men, should honor their word.'' This is
what we are asking today, is that for the 70 years of promises
and honor that this country, that we live up to that today.
Thank you.
Mr. Hayworth. And we thank you, Mr. Seyler, for your
statements.
[The prepared statement of Mr. Seyler follows:]
Statement of Warren Seyler, Chairman, Spokane Tribe of Indians
Thank you Mr. Chairman and members of the Subcommittee on Water and
Power for the opportunity to testify on H.R. 1753. Accompanying me are
Howard Funke, our attorney, and Dr. Charles Pace, our economist, who
are available for questions and may have a few comments.
I am here today on behalf of the Spokane Tribe to ask for your help
as representatives of the United States of America. I ask that you act
on behalf of the United States to finally treat the Spokane Tribe
fairly and honorably for the injury to our Tribe and Reservation caused
by the Grand Coulee Project. My testimony today summarizes the critical
need for this important legislation. We are also providing briefing
books for the record which give greater detail on our issues.
Grand Coulee's waters flooded the lands of two sister Indian
reservations that held great economic, cultural and spiritual
significance. Ours is one of those reservations.
Our life, culture, economy and religion centered around the rivers.
We were river people. We were fishing people. We depended heavily on
the rivers and the historic salmon runs they brought to us. We were
known by our neighboring tribes as the Salmon Eaters. The Spokane
River--which was named after our people--was and is the center of our
world. We called it the ``Path of Life.'' President Rutherford B. Hayes
in 1881 recognized the importance and significance of the rivers by
expressly including the entire adjacent riverbeds of the Spokane and
Columbia Rivers within our Reservation. But the Spokane and Columbia
Rivers are now beneath Grand Coulee's waters. Today our best lands and
fishing sites lie at the bottom of Lake Roosevelt.
The other Reservation flooded by Grand Coulee's waters is that of
the Colville Confederated Tribes. The waters that rose behind Grand
Coulee Dam brought similar fates to both our Reservations. Our burial
sites--the places our ancestors were laid to rest--were lost to the
rising waters. The river banks, which provided us plants for foods and
medicines were forever flooded. The homes, gardens, farms and ranches
our people had worked hard to build on our Reservation are now under
water. The free-flowing Columbia River and our ``Path of Life'' are now
slack water behind Grand Coulee. The Dam also destroyed our salmon
runs, which from time immemorial had given us life and identity. While
the Colville lost most of their runs, salmon still were able to reach
the Colville Reservation up to the Grand Coulee Dam. But upstream, at
our Reservation, the salmon were entirely lost.
For decades, the Colville and Spokane Tribes shared similar
histories and dialogue in connection with the Grand Coulee issue, and
were subjected to the identical misconduct by the United States
Government. When the project first began, it was to be a state project,
governed by the Federal Power Act which required annual compensation to
impacted Indian tribes. Later, after the Project was federalized and no
longer fell under the Federal Power Act, Government officials continued
to recognize that the Tribes should be compensated. When construction
on Grand Coulee began, the Commissioner of Indian Affairs recommended,
in writing, that both Tribes receive annual payments for the dam's
operations. The Secretary of the Interior and other high-level federal
officials knew the Tribes should receive compensation. But it never
happened. Both Tribes were equally deceived.
In 1941, our Tribes renewed their efforts, taking the extraordinary
step of sending a joint delegation cross-country to meet in Washington,
D.C., with the Commissioner of Indian Affairs on Grand Coulee. The
meeting was held on December 10--three days after Pearl Harbor was
bombed. The Commissioner and his staff explained that the war had
become the nation's priority, and that Congress could not be expected
during such times to address the Tribe's needs. But they committed to
do what they could to help, and our leaders returned home trusting that
things would be made right once the war was over--the same war we sent
our young to fight.
These were times when our people were almost completely dependent
on the Bureau of Indian Affairs for protecting our Reservation and
resources. Our great white father was BIA. We were allowed to do
nothing without the BIA. We were not experienced in the ways of
American law, politics and business. At that time, we were among the
most isolated of tribes in the nation. We were beginning to farm and
ranch, but our subsistence ways--depending on the Rivers' salmon--was
most prominent. At that time, we also had no constitutionally formed
government. And even though the Bureau of Indian Affairs' nearest
agency was 100 miles away on the Colville Reservation, we relied on BIA
officials for managing details like recording the minutes of Tribal
meetings. So when the Commissioner of Indian Affairs told our people he
would do all he could to help, it carried great weight. Being a
trusting people, we took the government representatives' word.
Soon after the War's end, in 1946, Congress enacted the Indian
Claims Commission Act. The ICCA allowed Indian tribes to bring historic
legal claims against the United States government. Several obstacles
unique to our Tribe made the task of filing our ICCA claims unusually
difficult. First, although the Act required the Commission and BIA to
notify all tribes of claims that should be filed, we received no such
notice. We learned of the ICCA from neighboring tribes only months
before the 1951 filing deadline. Second, our leadership acted to retain
a lawyer once they learned of the ICCA. But the Commissioner of Indian
Affairs withheld his approval for several months, costing our Tribe
much critical time. Also, our Constitutional government was first
formed only 60 days before the 1951 deadline for filing. Eventually,
the Spokanes filed a standard ICCA claim much like the claim filed by
the Colville Tribes. No mention of Grand Coulee was made in either
since the ICCA was understood to apply to historic claims rather than
claims where wrongful conduct was ongoing.
In 1972, the Secretary of the Interior established a Task Force to
address the Spokane and Colville Tribes' Grand Coulee issues, and
later, in 1976, the Senate Appropriations Committee renewed the hope of
both Tribes by directing the Secretaries of the Interior and the Army
to ``open discussions with the Tribes to determine what, if any,
interest the Tribes have in such production of power and to explore
ways in which the Tribes might benefit from any interest so
determined.'' During the next several years, numerous meetings were
held. Both the Colvilles and the Spokanes participated in earnest,
fully believing that the Government would satisfy Congress' directive.
When the Task Force's report came out, however, it was nothing more
than a legal position: the United States has legal defenses and,
therefore, there is no requirement to compensate the Tribes. After
several years of work, the Report, which is included in our briefing
materials, failed to consider the Tribal interests involved in the
process. And it completely ignored Congress' mandate that benefits
associated with those interests be explored. We had trusted that
Congress would help by addressing our claim side by side with the
Colvilles.
As I said earlier, Grand Coulee's impacts on the Spokane and
Colville Tribes was virtually identical, as were the Tribes' histories
of dealing with the United States. While the Colvilles may have lost
more land, the Spokane lost our salmon fisheries entirely. And both
Tribes have survived decades of lost hope and broken promises.
There is a simple historical fact that separates the Colville and
Spokane Tribes. It is that fact that led ultimately to the Colville
Tribe's settlement of its claims--a settlement under which the
Colvilles received $53 million in back damages, and annual payments in
perpetuity that since 1994 have been $15-20 million each year.
We believe it is unprecedented for one tribe to receive
compensation from the United States while a similar tribe receives
nothing.
In the mid-1960s, the Spokane Tribe--a trusting tribe that has
always come to the aid of the U.S.--entered a cooperative relationship
with the United States government, and in 1967 the Tribe settled its
Indian Claims Commission case. The Colvilles did not. Instead, the
Colvilles persisted with their legal battles through the 1960s, and
beyond the days of the Task Force. The Colvilles hadn't raised Grand
Coulee claims in their original ICCA case any better than had the
Spokanes. But their decades-long resistance to settlement enabled them
to benefit from a mid-1970s Indian Claims Commission case. In 1975, the
Commission ruled for the first time ever that it had jurisdiction over
cases where the wrongful conduct continued beyond the ICCA's 1951
statutory deadline.
Armed with that new decision, the Colvilles by 1976 had sought and
obtained permission to amend their ICCA claim to include for the first
time their Grand Coulee case. Our Tribe, having come to terms with the
United States in the 1960s, had no case left to amend. In spite of
that, both tribes continued to negotiate and meet with the United
States.
In 1978, the Indian Claims Commission ruled that the United States'
conduct in building Grand Coulee Dam was unfair and dishonorable and,
therefore, awarded the Colville Tribes over $3 million for fisheries
losses. In 1992, the Federal Circuit Court of Appeals ruled that the
Colvilles' claim for power values, based on the same standard, was not
barred. With that leverage, the Colvilles secured a settlement which,
in 1994 the Congress approved in Public Law Number 103-436.
Nine years ago, in the context of the Colvilles' settlement, I came
here and testified to Congress on my Tribe's behalf. I asked Congress
to include our settlement with the Colvilles, or to waive the ICCA
statute of limitations so we might be able to present our case. But
rather than providing our requested relief, Congress again directed the
United States to negotiate with us a fair settlement.
Since then, I have participated in virtually all discussions held
between our Tribe and three BPA administrators representing the United
States. During the past nine years, we have been forced to confront
countless tactics that ran directly counter to the Congress' direction
and intent that our Grand Coulee claims be negotiated in good faith and
on the merits. As Senator Patty Murray stated:
``The fair and honorable dealings standard established in the
Indian Claims Commission Act should clearly apply to the United
States' conduct and relationship with both the Colville and
Spokane Tribes.''
For the first several years we met nothing but delay and the
assertion of technical legal defenses. Members of Congress who had been
made aware of these failings, admonished the United States, stating in
clear terms that the negotiations must be on the merits of our claim
without consideration of legal defenses, and that by definition,
negotiations must involve flexibility. We were advised that an offer
was being developed, but that it had to go through several levels of
federal approval. We were concerned that there would be little room for
negotiation. As we awaited the offer, we continuously sought and
obtained assurances from BPA and others that once presented, there
would be sufficient flexibility for negotiations. But when the offer
finally came five years later, it was presented as an ultimatum--``Take
it or leave it.''
The offer fell far short of what we felt represented a fair
settlement. Since 1992, we had sought a settlement that was
proportionate to the Colvilles' based on lands used by the Project. So
again we regrouped, and enlisted the assistance of Congressman
Nethercutt to moderate a negotiation session with BPA. At the end of
that session, both sides had made concessions, as occur during good
faith negotiations. BPA committed to examining ways to make the
agreement in principle work, and promised to get back to us in a couple
of weeks. Then came more delay. After more than a year of waiting for
BPA to follow through, we were stunned when BPA backed altogether away
from the agreement in principle. Since then, we have tried numerous
approaches on numerous occasions to make the agreement work--and each
time BPA has rejected our efforts.
After nine years of fruitless negotiations, nine years of broken
promises and delays, I am back here today requesting that this
injustice not go unanswered. That the United States Government
recognize our contributions and sacrifices. To compensate one of the
two Tribes devastated by Grand Coulee, and not the other has only
compounded the injustice to our people and prolonged this conflict. We
believe it would be unprecedented for Congress to only provide relief
to one tribe--and not the other--when both are so similarly impacted.
In closing, Mr. Chairman, and honorable members of the Committee, I
ask you to listen with your hearts. We have no place to turn. We have
no place to go. We ask for our day of justice. We have waited for this
day for over sixty years.
______
October 20, 2003
Honorable Ken Calvert, Chairman
Subcommittee on Water and Power
U.S. House of Representatives
Committee on Resources
Washington, D.C., 20515
Dear Chairman Calvert:
Thank you for the opportunity to appear before the House
Subcommittee on Water and Power's October 2, 2003 legislative hearings
on H.R. 1753. The hearing was very important to the Spokane Tribe of
Indians in our longstanding and continuing efforts to secure a fair and
honorable settlement for tribal lands which were confiscated by the
United States for purposes of the Grand Coulee Project.
In your letter of October 6, 2003, you indicated that the Majority
Members of the Committee had five additional questions as follows:
1. Why have negotiations between Bonneville and the Tribe failed?
2. Do you believe there is middle ground on this issue?
3. Since Indian settlements are a national interest, are you
opposed to having the U.S. Treasury fund all of the Spokane settlement?
4. The primary difference over the Colville and Spokane situation
is the statute of limitations issue. Grand Coulee construction impacted
your reservation before 1967, the year the Tribe settled on its
original land claim. Why didn't the Tribe amend its original land claim
to account for the Grand Coulee impacts?
5. Would this legislation set a precedent by which a back payment
is given to a tribe that did not have a pending claim?
Please find attached my response to the above questions. Once
again, thank you for holding hearings on H.R. 1753.
Sincerely,
Warren Seyler, Chairman
Spokane Tribe of Indians
P.O. Box 100
Wellpinit, WA 99040
Attachment
______
Responses of Warren Seyler, Chairman, Spokane Tribe of Indians, to
questions submitted for the record from Ken Calvert, Chairman, House
Resources Subcommittee on Water and Power, regarding Spokane Settlement
Bill, H.R. 1753--Submitted October 21, 2003
Question No. 1: Why have negotiations between Bonneville and the Tribe
failed?
Response: There are three main reasons why negotiations between
Bonneville and the Tribe have failed to produce a fair and honorable
settlement. First, the Administration and BPA, despite repeated
congressional directives, have consistently delayed and stalled
progress. By doing so, BPA has deferred across two successive rate
cases, without interest, on paying any compensation to the Tribe.
Second, during negotiations, BPA also insisted that any
compensation package for the Spokane Tribe be based on a nonsensical
formula that was never used as a basis for the Colville settlement and
greatly disadvantages the Spokane Tribe.
Third, while delaying negotiations and devaluing the losses
suffered by the Spokane Tribe, BPA was simultaneously distributing
enormous additional benefits to aluminum companies and the other
entities in the Pacific Northwest, far in excess of the historic
benefits which it has provided. This extreme increase in benefits was
deliberately pursued in spite of the western energy crises and has led
to unprecedented impacts on BPA's rates.
In 1994, while considering the Colville settlement, Congress
directed the Administration to reach a fair and honorable settlement
with Spokane. However, despite repeated letters from Congressman George
Nethercutt, Senator John McCain and others urging the Departments of
Justice and Interior to enter into negotiations with the Spokane Tribe
and reach a fair and honorable settlement, the Administration stalled
on its obligation and no negotiations occurred for four years, from
1994 through 1998.
Finally, in August of 1998, BPA began ``discussions'' with the
Spokane Tribe but, even then, indicated that it had no authority to
negotiate. In those discussions, BPA presented to the Spokane Tribe a
formula which it proposed be used to value the lands which the United
Stated seized from the Spokane Tribe for the Grand Coulee Project,
claiming that this formula was the basis for the Colville settlement.
This formula was an improper and arbitrary application of an
unrelated single FERC case, completely unlike Grand Coulee, and was
totally unsuitable for valuing Spokane (or Colville) lands taken for
the project and, more importantly, did not serve as a basis for the
Colville Settlement. BPA, even though it lacked authority to negotiate,
also demanded substantial additional concessions from the Spokane
Tribe. For example, BPA insisted that any compensation paid the Spokane
Tribe must not include payments for the fact that Grand Coulee
exterminated the fish runs in the upper Columbia River and Spokane
River which the Spokane people had depended upon since time immemorial.
As late as 1999, BPA still lacked authority to negotiate with the
Spokane Tribe. As a result, Congressman George Nethercutt and Senator
Patty Murray introduced Spokane settlement legislation. Those proposed
settlement bills were based on straight-forward ``proportional''
settlement whereby the Spokane would receive 39.4% of the payments
which the United States made to Colville. This proportion was based on
the ratio of lands taken from the Spokane to lands taken from the
Colville Tribe.
By March of 2000, BPA still had no authority to negotiate with the
Spokane Tribe but made an ``unofficial'' proposal, again based on the
``formula'' BPA claimed it used in the Colville settlement. This
proposal, which provided annual payments of just 19.2% of annual
payments to Colville, contained numerous, significant mathematical
errors and faulty analysis. It applied a ``profitability method'' to a
non-profit organization. It viewed the Grand Coulee Project as a sort
of ``joint venture'' between the United States and project developer
and the Spokane Tribe as landowner. And, most importantly, it weighted
a handful of acres in the project which the Spokane Tribe did not own
at 2200 times the value of lands which the Spokane Tribe did own.
By May 2000, near the end of the 106th Congress, BPA had received
authority to negotiate. The late release of authority to negotiate, the
insistence on use of an unjust formula, the erroneous math and analysis
provided by BPA to the Tribe delayed not only a fair negotiated
settlement as directed by Congress but foreclosed meaningful
consideration of the Spokane settlement bills by Congress.
In June 2001, the Spokane Tribe sought to revive negotiations with
BPA by offering, at BPA's request, a range of creative approaches to
settlement. These included a mix of less revenue in exchange for a
block of power, upgrading of distribution/transmission facilities,
assigning the Bureau of Reclamation (which operates the Grand Coulee
Project) partial payment responsibility. The Spokane Tribe also
indicated its willingness to structure payments for back damages over
time to minimize any impacts on BPA's ratepayers.
In July of 2001, BPA flatly rejected the Spokane Tribe's proposal
and, in response, withdrew its previous offer of a one-time back
payment. In doing so, BPA cut the value of its prior best offer by
approximately $17 million. Thus, by August 2001, negotiations were at
an impasse.
In September of 2001, the Spokane Tribe returned to Congress and
requested settlement legislation be introduced. In response,
Congressman George Nethercutt suggested that the Spokane Tribe make a
final effort to negotiate and agreed to conduct and facilitate a
negotiation session between the Tribe and BPA. Due to events which
occurred in mid September, that session did not occur until January of
2002.
In January of 2002, Congressman Nethercutt facilitated a
negotiations which arrived at a ``middle ground'' settlement scenario
which provided compensation for back payments and annual payments of
29.4%, i.e., halfway between BPA's 19.2% and the Spokane Tribe's 39.4%.
In those sessions, Steve Wright, BPA administrator, stated the middle
ground settlement scenario should work for BPA but that he needed 10
days to 2 weeks to ``run the numbers'' and determine how best to
structure the back payment over time.
By the first week in April of 2002, nearly three months after the
session facilitated by Congressman Nethercutt, the Spokane Tribe had
still heard no response form BPA. Out of total frustration, the Spokane
returned to Washington, D.C., to request settlement legislation from
Congress.
In May of 2002, four months after the January 2002 negotiating
session and while in Washington, D.C., meeting with members of
Congress, the Spokane Tribe finally received a reply from BPA regarding
the ``middle ground'' settlement scenario. BPA's delayed response
merely put the back pay back on the table. BPA did not budge from its
long-standing insistence that annual payments to the Spokane Tribe not
exceed 19.2% of payments to Colville. BPA's letter also warned the
Tribe to promptly accept this offer or back pay would again be taken
off the table.
As a result, the leadership of the Spokane Tribe concluded that
further negotiations with BPA were unlikely to yield any kind of fair
or honorable settlement. Rather, BPA merely used the January 14, 2002
facilitated negotiations to successfully stall reintroduction of
settlement legislation and prevent timely congressional hearings.
In May, 2002, Congressman Nethercutt and Senator Patty Murray, for
the second time, reintroduced Spokane settlement bill based on a 39.4%
proportional settlement with the Colville. In July of 2002, staff for
the Senate Committee staff of the Indian Affairs, Energy and staff
acting on behalf of members of the Washington delegation suggested the
Spokane Tribe attempt further negotiations with BPA, this time
facilitated by and through the staff of the committees and requested
the Tribe resubmit an expanded version of the creative areas/options
for settlement to the Committee to serve as a basis for further
settlement discussions.
At the time, BPA expressed renewed optimism and clarity stating
that BPA staff would take a ``first cut'' at costing out the Tribe's
proposal and indicating that they would respond to Committee staff by
August 1, 2002. August came and went with no reply by BPA. In fact, BPA
did not respond until six weeks later and even then, in an email,
merely stated that the Spokane Tribe's proposal ``simply increases
costs to BPA'' and ``we have many obligations and requests for spending
on worthy efforts.''
Thus, the Spokane Tribe renewed its request for congressional
hearings in October 2002. However, congressional elections were hotly
contested and no hearings were scheduled. Finally, in 2003, Congressman
Nethercutt introduced a settlement bill in the House of Representatives
and Senator Maria Cantwell introduced a settlement bill in the Senate.
Hearings were held on October 2, 2003. At those hearings, BPA testified
before the House Water and Power Subcommittee taking the position that
the Tribe would be forced to accept its 19.2% offer if only Congress
would stop encouraging the Tribe to expect more.
Question No. 2: Do you believe there is a middle ground on this issue?
Response: In a meeting hosted by Congressman Nethercutt in January
2002, the Spokane Tribe offered a ``middle ground'' proposal to BPA of
29.3% of the Colville Settlement. The 29.3% is the midpoint between
BPA's position of 19.2% and the Spokane Tribe's position of 39.4%. BPA
ultimately ignored the Tribe's proposal.
Essentially, the Spokane Tribe had always bargained for 39.4% of
the compensation package received by Colville. This proportion was
based upon the ratio of the respective lands taken from the two tribes.
However, BPA, applying its profitability-Kerr Dam methodology, was
unwilling to offer more than 19.2% of annual payments made to Colville.
And BPA's last offer contained no ``back pay'' comparable to the $53
million one-time payment to Colville.
With Representative Nethercutt's assistance and guidance, the
parties arrived on January 14, 2002 at a ``middle ground'' settlement
scenario which (it was thought) could work for all parties. Following
the January 14, 2002 meeting, the Tribe prepared a preliminary analysis
of impacts of an annual payment--based on 29.3% of Colville--on BPA's
Power Business Line's expenses and found they would be negligible. The
increase in the average monthly electric bill of a typical household in
the Pacific Northwest would be less that 12 cents, i.e., less than one-
half of one percent of the rate increases BPA put in effect as of
October, 2001 for the FY 2002-2006 rate case.
Near the end of the January 14, 2002 negotiations, Steve Wright,
BPA Administrator and CEO, stated that the middle ground compromise, as
outlined, should work for BPA but that he would need ``ten days to two
weeks'' for BPA staff to ``run the numbers'' and determine how best to
structure the back payment over time. The Tribe reiterated its
willingness to partition the back payment into several separate
payments in order to distribute the impact of the settlement over time,
and its willingness to join with BPA in analyzing the impact on BPA
ratepayers of various approaches for making the one-time payment. The
BPA, however, virtually ignored the Tribe following the meeting.
Seventy-six (76) days later the Spokane Tribe had still not heard
back from the Administrator. Two weeks had drawn out to nearly three
months with no response on BPA's part. During that time,
representatives of BPA had repeatedly indicated that their response was
imminent. On April 3, 2002, the Chairman of the Spokane Tribe, Alfred
Peone, contacted Representative Nethercutt, thanking him for his
efforts and respectfully requesting that the settlement legislation be
reintroduced and hearings scheduled regarding the Spokane Tribe's
claims against the United States for damages associated with the Grand
Coulee Project.
The Spokane Tribe's assessment was that further negotiations with
BPA were unlikely to bear fruit and that reintroduction of settlement
legislation and scheduling of congressional hearings was the best
approach to resolving the Spokane Tribe's claims for damages and
providing a fair settlement with the Spokane Tribe.
``At this point, we have lost faith in the value of further
negotiations with Bonneville.... BPA throughout its dealings
with the Spokane Tribe on this matter has...grossly
undervalue[d] the contribution of Spokane lands seized by the
United States for project purposes.... [T]his devaluation has
taken many forms.... BPA has insisted on applying a profit-
based methodology to a federal power marketing administration
that earns no profits. BPA has insisted on using the lowest
possible estimate of actual Spokane lands taken. It has
insisted on imposing an arbitrary, capricious and wholly
unwarranted litigation penalty in perpetuity on the Tribe to
further reduce payments. Representatives of BPA have
steadfastly refused to consider making a one-time back payment
to Spokane comparable to the $53 million which the Colville
received in 1995, thereby undermining any semblance of a
``proportional'' settlement.
* * *
They requested that we develop but then refused to even
discuss a creative approach to settlement, offered and then
rescinded a proposal to provide the Tribe with a few years
`catch up' payment, and since January 14th failed to keep their
promise as to when we could expect a response on strategies to
structure a scenario for making payments over time.''
Letter from Chairman Peone to Rep. Nethercutt, dated April 3, 2002.
In response to being totally ignored the Tribe again returned to
Congress to request a legislated settlement. While meeting with members
of Congress the Tribe received a belated written response from BPA in a
letter from Steve Wright to Chairman Peone, dated May 15 2002--some
seventeen weeks following the negotiation session. The Tribe left the
January 14, 2002 session with the feeling an agreement had been reached
subject to BPA ``running the numbers.'' BPA had a different
perspective. While apologizing for his ``lengthy delay'' in responding
to the Tribe, Wright stated:
``I want to reiterate that while I expressed appreciation for
your willingness to move from your earlier position, I did not
in any way signify an agreement with your position. Our
conversation was wide ranging and left many issues to be
considered. Given that the current Administration has not been
briefed on the issues we discussed, let alone any proposed
settlement, I could in no way commit to any specific outcome.''
Letter from Steve Wright to Alfred Peone, May 15, 2002.
Stating his continued support ``for an agreement based on the
Colville Settlement'' the Administrator renewed the offer to the Tribe
``of 19.2% of the total compensation paid the Colvilles.'' In effect
this offer merely placed back into consideration the back pay of
roughly $17 million that was taken out of the offer on July 31, 2001 by
BPA. The letter warned the Tribe that ``Lacking prompt resolution, I
will again withdraw the provision for payment for Fiscal Years 1995
through 2002.'' The only conclusion the Tribe could reach was that BPA
used the January 14 negotiations to stall reintroduction of settlement
legislation and hearings in Congress. BPA was ultimately successful.
Question No. 3: Since Indian settlements are a national interest, are
you opposed to having the U.S. Treasury fund all of the Spokane
settlement?
Response: No, so long as the payments are forthcoming, mandatory
and certain. Indeed, the nation has realized enormous benefit from the
use of Spokane lands to generate hydropower at Grand Coulee and so has
the Pacific Northwest Region. While the Tribe does not care where the
revenues come from to fund a fair and honorable settlement, the Tribe
believes it would be simple to follow the Colville payment structure
which in effect splits the costs of settlement between Bonneville and
the U.S. Treasury.
The United States General Accounting Office (GAO) suggests
splitting the costs between Treasury and Bonneville may be the
preferred approach. The GAO provided testimony on October 2, 2003, to
the Committee on Indian Affairs, U.S. Senate on the Spokane Settlement
Bill, S. 1438, for the express purpose of addressing:
1. impact of a settlement on Bonneville if the costs were split
between Bonneville and the Treasury; and
2. possible allocation of these costs between Bonneville and the
Treasury.
GAO, Testimony Before the Committee on Indian Affairs, U.S. Senate
(October 2, 2003). (Attachment 1). Speaking to the issue of the
allocation of payment responsibility among both the Treasury
and Bonneville, GAO states:
A reasonable case can be made for having Bonneville and the
U.S. Treasury allocate any costs for the Spokane tribe's claims
along the lines agreed to for the Colville tribes. Any
settlement would attempt to re-institute a commitment the
federal government made to the tribes in the 1930s. Under the
Federal Water Power Act of 1920, licenses for the development
of privately owned hydropower projects should include a
``reasonable annual charge'' for the use of Indian lands.
Originally, the Grand Coulee site was licensed, and the Spokane
tribe expected to receive annual payments for its lands used
for the project. However, the license was cancelled when the
federal government took over the project (federalized the
project). Since the federal government is not subject to the
Federal Water Power Act, it was not required to make annual
payments to the tribes. Nevertheless, the federal government
made a commitment in the 1930s to make annual payments to the
Colville and Spokane tribes as if the project had remained a
nonfederal project. However, the federal government did not
follow through on this commitment after the project was
completed and started generating revenues from electricity
sales in the 1940s. In pursuing this matter, the tribes
weathered various administrations and changes in the federal
government's Indian policy. In the 1950s and 1960s, the federal
government actively sought to terminate its relationship with a
number of tribes, including the Spokane tribe.
In the early 1970s, when it became clear that the federal
government was not going to make these payments, the Colville
tribes were able to amend their claim with the Indian Claims
Commission to pursue this matter. After agreeing to the overall
legitimacy of the Colville tribes' claims, the Congress
ultimately approved a settlement that primarily required
Bonneville to provide annual payments for water power values.
This settlement was a compromise to split the costs between
Bonneville and the U.S. Treasury. Bonneville is primarily
paying the recurring annual payments, and the U.S. Treasury's
Judgment Fund provided the one-time lump sum payment in
settlement of the past annual payments--$53 million. The
Spokane tribe, however, had already settled its claim years
earlier and therefore could not file an amended claim with the
commission. Nevertheless, since Bonneville collects the annual
revenues for the electricity generated by the dam, it could be
argued that Bonneville should make annual payments to the
Spokane tribe out of those revenues, as it does for the
Colville tribes; the U.S. Treasury would then pay a lump sum to
settle any claims for past years. The current House settlement
proposal, H.R. 1753, and previous House and Senate settlement
proposals introduced in the 106th and 107th Congresses directed
the settlement costs to be split between Bonneville and the
U.S. Treasury.
It could also be argued that the U.S. Treasury should pay the
Spokane tribe's claim, as it does for most claim settlements
against the federal government. S. 1438 provides for the
settlement of the tribe's claim from the U.S. Treasury.
However, we do not believe a compelling case can be made to
have the nation's taxpayers fully absorb an additional cost of
doing business associated with Bonneville's production of power
in one region of the country.
In summary, the Tribe is not opposed to the U.S. Treasury funding all
of the Spokane payments. However, the Tribe believes it would
be simple and equitable to split the costs between the Treasury
and BPA along the lines of the Colville settlement.
[NOTE: Attachment 1--``Spokane Tribe's Additional Compensation
Claim for the Grand Coulee Dam''--a statement submitted for the record
by Robert A. Robinson, Managing Director, Natural Resources and
Environment, U.S. General Accounting Office, can be found at the end of
this response to questions.]
Question No. 4: The primary difference over the Colville and the
Spokane situations is the statute of limitations issue. Grand
Coulee construction impacted your reservation before 1967, the
year the Tribe settled on its original land claim. Why didn't
the Tribe amend its original land claim to account for the
Grand Coulee impacts?
Response: The Spokane Tribe of Indians did not amend its original
petition to include Grand Coulee claims before the 1967 settlement for
several reasons, including the failure of its trustee--the BIA--to
advise the Tribe of its claims as required by statute, the continuous
representation by its trustee that the Tribe's claims would be fairly
and honorably addressed, and a 1975 development in ICCA case law that
for the first time recognized the legal viability of ongoing claims
that had not fully accrued before the ICCA statutory deadline.
In 1946, Congress enacted the Indian Claims Commission Act. Act of
August 13, 1946 (60 Stat. 1049). Pursuant to that Act, there was a five
year statute of limitations to file claims before the Commission which
expired August 13, 1951. The ICC Act imposed a duty on the Bureau of
Indian Affairs to apprize the various tribes of the provisions of the
Act and the need to file claims before the Commission. 25 U.S.C.
Sec. 70l (repealed). Unfortunately, the BIA agency responsible for the
Spokane Tribe was located 100 miles away on the Colville Indian
Reservation. According to a 1981 memorandum to the Chairman of the
Senate Appropriations Committee:
``There is no record of the Claims Commission or the Indian
Bureau notifying or dealing with the Spokane Tribe in any way
regarding its right to file claims before the Indian Claims
Commission. During the Calvin Coolidge administration a bill
had passed through Congress permitting it and the neighboring
Kalispel Tribe to file claims for their ceded aboriginal lands,
but that bill was vetoed by the president. That potential claim
for the cession of its land was the only Claim that the Tribe
had knowledge that it had.
At about the time of the approval of its tribal government in
June 1951 the tribal leaders heard from their neighboring
Kalispels and Coeur d'Alenes of their having filed claims for
the cession of their aboriginal lands. They hastened back to
Washington, D.C., and belatedly employed the same claims
attorneys these tribes had. These just-hired attorneys had no
time to investigate other claims and filed only one claim, that
for the cession of their approximately 3.5 million acres of
aboriginal land.''
See Memorandum of January 12, 1981 with Final Report, Colville/
Spokane Task Force (September 1980). (Attachment 5 to Spokane Tribe of
Indians' Written Materials submitted October 2, 2003). While the BIA
was well aware of the potential claims of the Spokane Tribe to a
portion of the hydropower revenues generated by Grand Coulee, there is
no evidence that the BIA ever advised the Tribe of such claims. Thus,
the Tribe had no way of knowing that its Grand Coulee claims should, or
could, have been brought under the ICCA.
Although the Indian Claims Commission statute of limitations
expired in August 1951, neither the Colville Confederated Tribes nor
the Spokane Tribe knew then or for many years thereafter were aware
that there would be a need to even file claims related to the use of
their tribal land and water resources for the construction and
operation of the Grand Coulee Dam for power production and reclamation.
Instead, they were led by their federal trustee to believe that the
United States would address their claims. Beginning in the 1930s and
through the 1970s, the historical and legal record is replete with high
level agency correspondence, Solicitor's Opinions, inter-agency
proposals/memoranda, Congressional findings and directives and on-going
negotiations with the affected Tribes to come to agreements upon the
share of revenue generated by Grand Coulee which should go to the
Tribes for the use of their respective resources.
The Tribes had every reason to believe that its trustee, the United
States, was, although belatedly, going to act in good faith to provide
fair and honorable compensation to the Tribes for the United States'
proportionate use of their Tribal resources for revenue generated by
the Grand Coulee Dam. Thus, while the Spokane Tribe in 1967 settled the
ICCA claims, the expectation of fair treatment for Grand Coulee's
impacts continued. Ironically, the Spokane Tribe's willingness to
resolve its differences with the United States would later be used as
justification for the United States' refusal to deal fairly and
honorably with the Tribe.
In addition to these points, no case law under the ICCA supported
claims that had not fully accrued before 1951. Claims for wrongful
conduct that began before 1951 and continued beyond that date were not
recognized as legally viable until nearly a decade after the Spokane
Tribe's settlement. The Colvilles, who had not settled their ICCA
claim, continued their litigation against the United States. In 1975,
the Indian Claims Commission ruled for the first time ever on a
jurisdictional question, left open since 1956, that controlled the
Colvilles' Grand Coulee claim. The Commission held that it had
jurisdiction over ongoing claims as long as they were part of a
continuing wrong which began before the ICCA's enactment and continued
thereafter. Navajo Tribe v. United States, 36 Ind. Cl. Comm. 433, 434-
35 (1975). With this major legal question answered, the Colvilles
sought, and in 1976 obtained, permission from the Commission to amend
their complaint to include for the first time their Grand Coulee
claims. With new life breathed into their claims, the Colvilles pursued
litigation to the Federal Circuit Court of Appeals, which held that the
ICCA's ``fair and honorable dealings'' standard may serve to defeat the
United States' ``navigational servitude'' defense. Colville
Confederated Tribes v. United States, 964 F.2d 1102 (Fed. Cir. 1992).
In light of this ruling, the United States in earnest renewed
negotiations with the Colvilles to resolve that Tribe's Grand Coulee-
related claims. Unfortunately because the Spokane Tribe in 1967 had
acted in cooperation with the United States to settle its ICCA case, it
lacked the legal leverage to force meaningful negotiations.
Numerous historical occurrences factored into the different legal
postures held under the ICCA by the Colville and Spokane Tribes. Key
among them was the Spokane Tribe's inability to amend its original
petition to include Grand Coulee-related claims. The Spokane Tribe was
not advised by its federal trustee, as required by statute, of its
potential ICCA claims related to Grand Coulee. The Tribe was misled by
continuing representations by its federal trustee that the United
States would fairly and honorably address its Grand Coulee claims. And,
finally, no ICCA case recognized the Commission's jurisdiction over
such ongoing claims until 1975, eight years after the Spokane Tribe's
claims were settled.
Question No. 5: Would this legislation set a precedent by which a back
payment is given to a tribe that did not have a pending claim?
Response: A complete answer to this question requires a four-part
response.
First: The Spokane Indian Tribe's claim is so factually and legally
unique that any precedential value of the legislation would be
extremely limited.
Based on the Tribe's survey, there were only two other tribal
governments who may have moral claims against the United States for
lands inundated by federal dams in the Columbia Basin, but for the
ICCA's statute of limitations. The Dworshak Dam on the North Fork of
the Clearwater River barely touches upon the northern boundary of the
Nez Perce Reservation, inundating a tiny portion of reservation lands.
The American Falls Dam on the Snake River is located below the Fort
Hall Indian Reservation. The reservoir behind the dam inundates a small
portion of the Fort Hall Reservation, where the Snake River forms the
northwestern boundary of the Fort Hall Reservation.
A third--the only other Indian Reservation in the United States
that may have suffered similar devastation--is the Fort Berthold
Reservation, which was flooded by a federal dam on the Missouri River.
Unlike the Spokane, the Fort Berthold Tribes' culture was not centered
around fishing. Moreover, Congress has already provided additional
compensation to the Fort Berthold Tribes, over and above the
substantial compensation these Tribes received when their lands were
inundated, because of the especially egregious impacts. See Public Law
102-575.
None of these Reservations are impacted to the degree the Grand
Coulee devastated the Spokane Reservation. The western (Columbia River)
and southern (Spokane River) borders of the Spokane Reservation are
flooded by the Grand Coulee Project. The Grand Coulee Project
devastated the Spokane Reservation, and the Tribe's culture, far worse
than any other Indian Reservation was impacted by federal hydro-
electric development in the United States, except perhaps the Colville
Reservation.
These comparisons go to the heart of the uniqueness of the Spokane
claims. No other Northwest Indian reservations were devastated by a
federal hydro-electric project as severely as the Colville and the
Spokane. It is unique in that one inundated Tribe was compensated and
the other is not, yet the impacts are identical. It is unique in that
express, written commitments were made by the Secretary of the Interior
to compensate the Tribes for Grand Coulee impacts, but these promises
were not kept. The sheer size of the Grand Coulee Project (the largest
electricity producer in the United States and the largest concrete dam
in the world), combined with the absolute economic, social, cultural,
and religious reliance of the Spokane Tribe on fishing and the Spokane
and Columbia Rivers, makes its claims unique. The precedential value
is, therefore, virtually non-existent.
Second: The Spokane Tribe's claim for the loss of its salmon runs
may have created a precedent, and for that reason the Tribe agreed not
to include it in this legislation.
Early in the negotiations that followed enactment of the Colville
Tribe's settlement bill, the Spokane Tribe explained to the various
involved federal agencies that it intended to pursue damages for the
loss of its historic salmon runs. The Spokane Tribe, once totally
dependent on the salmon, had lost these runs entirely to Grand Coulee.
The Colville Tribes, which did not entirely lose access to the runs,
were compensated for their losses through the ICCA.
When the first drafts of the Spokane Tribe's settlement bill were
being discussed with potential Congressional sponsors, the Tribe was
asked to remove provisions for compensation related to fish losses
because they might establish a precedent. The remainder would be left
in place because it was not viewed as precedent-setting. The Tribe
agreed to the request.
Third: The legislation will not create a new precedent for similar
claims, since there already exists ample legislative precedent for
Congressional resolution of tribal claims against the United States
notwithstanding technical defenses the United States could raise.
P.L. 103-436. The 1994 Colville Tribes Settlement Act is the most
important precedent. The Colville and the Spokane are neighboring
tribes situated across the Columbia River from one another. In 1994,
Congress provided the Colville Tribes $53 million back damages and an
initial annual payment of $15,250,000. Subsequent annual payments will
be made to Colville as long as the Grand Coulee Dam generates
hydroelectric power. The Spokane Tribe, suffering virtually identical
in nature impacts, have received no such compensation from Congress.
P.L. 107-331. In 2002, the 107th Congress enacted the Yankton Sioux
Tribe and Santee Sioux Tribe Equitable Compensation Act which provided
a $28 million trust fund as compensation to both Tribes for the taking
of Reservation lands for the construction of the Fort Randall and
Gavins Point Dams on the Missouri River system under the Pick-Sloan
Project.
P.L. 106-511. In 2000, Congress enacted the Cheyenne River Sioux
Equitable Compensation Act which provided a $290 million trust fund as
additional compensation to the Tribe for the taking of tribal lands for
the Oahe Dam as part of the Pick-Sloan Project on the Missouri River.
P.L. 105-132. In 1997, in the first session of the 105th Congress,
legislation was enacted to provide $35 million of additional
compensation to the Lower Brule Sioux Tribe of South Dakota for the
takings of its lands for the Pick-Sloan Project.
P.L. 104-223. In 1996, the 104th Congress enacted legislation to
provide compensation of $27.5 million to the Crow Creek Sioux Tribe in
South Dakota for infrastructure that was inundated by flood waters from
two dams on the Missouri River. The ``taking'' legislation for the
Pick-Sloan Project authorized under a 1944 Act of Congress provided for
construction of alternative structures which were either not
constructed or were constructed in a shoddy way. The method of
compensation was premised on computation of revenues from the Western
Area Power Administration (WAPA)--the same process used to fund the
Three Affiliated Tribes and Standing Rock Sioux compensation bill
(below).
P.L. 102-575. In 1992, Congress enacted the ``Three Affiliated
Tribes and Standing Rock Sioux Tribe Equitable Compensation Program
Act,'' which provided compensation to both tribes for the taking of
reservation lands for the construction of Garrison Dam and Reservoir
and the Oahe Dam and Reservoir. Like Grand Coulee Project, these
Missouri River dams were built without consultation and equitable
compensation to the two impacted tribes, yet enormous benefits accrued
to the United States and its designated beneficiaries.
The $12 million in compensation each tribe had received for the
taking of its lands at the time was found to be totally inadequate in
light of the devastating and inordinate share of the impact borne by
these two tribes. Congress appropriated an additional $149.2 million
for the Three Affiliated Tribes and $90.6 million to the Standing Rock
Sioux Tribe, which provides an annual revenue stream for both tribes
based on the interest earned. (See Title 35 of Public Law 102-575 and
Senate Report No. 102-267.)
P.L. 96-338. Restored lands to the Tule River Indian Tribe despite
fact Tribe did not bring a claim for these lands under the ICCA.
P.L. 96-401. Authorizing the Secretary of the Interior to cancel
and renegotiate coal leases involving Northern Cheyenne lands in light
of an apparent violation of the Federal Government's fiduciary duty to
the tribe and because the present ``impasse can only lead to expensive
and lengthy litigation.'' House Report No. 96-1370, at 3.
P.L. 95-280. The Zuni Act directed the Secretary of the Interior to
purchase and hold certain lands in trust for the Zuni Indian Tribe of
New Mexico. Not withstanding statutes of limitations, the Act also
conferred jurisdiction upon the Court of Claims to hear and determine
the Zuni's aboriginal lands claim. Congress recognized that
``[u]nfortunately, the Zuni Indian tribal leadership failed to
comprehend the absolute necessity of filing a claim during the
statutory five-year period ending in 1951.'' Congress took note of the
fact that the Zuni lacked sufficient legal representation and that the
federal government had failed to meet its obligation to provide notice
and explanation to the Zuni of their right to file a claim against the
United States.
Each of these enactments represent occasions when Congress provided
compensatory or other direct relief to Indian tribes for past wrongs
despite the absence of pending claims. As a consequence, the
legislation will not stand as significant additional precedent.
Fourth: Pre-existing precedent also can be found, to a degree, in
the various Congressional Bills of Reference or jurisdictional
statutes, which allow Indian tribes to proceed with legal claims
despite the running of statutes of limitations.
P.L. 104-198. Conferred jurisdiction on the United Court of Federal
Claims with respect to land claims of the Pueblo of Isleta.
P.L. 95-280. The Zuni Act directed the Secretary of the Interior to
purchase and hold certain lands in trust for the Zuni Indian Tribe of
New Mexico. Notwithstanding statutes of limitations, the Act also
conferred jurisdiction upon the Court of Claims to hear and determine
the Zuni's aboriginal lands claim. Congress recognized that
``[u]nfortunately, the Zuni Indian tribal leadership failed to
comprehend the absolute necessity of filing a claim during the
statutory five-year period ending in 1951.'' Congress took note of the
fact that the Zuni lacked sufficient legal representation and that the
federal government had failed to meet its obligation to provide notice
and explanation to the Zuni of their right to file a claim against the
United States.
P.L. 95-247. Notwithstanding certain statutes of limitations,
Congress conferred jurisdiction on the Indian Claims Commission to
consider the merits of the Wichita Indian Tribe's claim against the
United States for the taking of lands.
P.L. 95-243. This Act authorized the U.S. Court of Claims to
review, without regard to the technical defenses of res judicata or
collateral estoppel, the Sioux Tribe's claims for compensation for the
taking of the Black Hills. Thus Congress overrode the Court of Claims
dismissal of the Sioux's claim, which had been dismissed on the grounds
of res judicata.
P.L. 96-251. Waived the statute of limitations of the ICCA to
permit the Cow Creek Band of Umpqua Indians to file a claim against the
United States for treaty violations. Congress stated that its enactment
of this legislation ``will assure the Cow Creek Ban their right to due
process and a fair day in court.'' Senate Report No. 96-397 at 2.
P.L. 96-404. Allowed a land claim suit by the Three Affiliated
Tribes to proceed in the U.S. Court of Claims notwithstanding statutes
of limitations, lapse in time, res judicata, collateral estoppel, or
any other provisions of law.
P.L. 96-405. Authorized the U.S. Court of Claims to hear claims by
the Blackfeet and Gros Ventre Tribes for land takings notwithstanding
Court of Claims earlier dismissal of these tribes' suit on the grounds
of res judicata.
P.L. 96-434. Same relief as in P.L. 96-405 afforded to the
Assiniboine Tribe.
Thus, this legislation is not precedentially unique since Congress
often has provided mechanisms that enable Indian tribes to seek
compensation for past wrongs. 1
---------------------------------------------------------------------------
\1\ See also, footnote 12, GAO, Testimony Before the Committee on
Indian Affairs, U.S. Senate (October 2, 2003) (listing various
additional public laws similar to those above).
---------------------------------------------------------------------------
The enactment of legislation to allow the Spokane Tribe to litigate
its claims, like those listed above, is a potentially available
alternative that was considered and rejected by the Tribe and by one of
the bill's primary sponsors. Such actions almost unanimously result in
the expenditure by both sides of vast sums on lawyers and expert
witnesses, take years to resolve, are exceedingly contentious, and
rarely are resolved in a manner satisfactory to all parties. As
experienced lawyers often say, a bad settlement is always better than a
good judgment.
*_____
Attachment 1
Testimony before the Committee on Indian Affairs, U.S. Senate,
Statement submitted for the record by Robert A. Robinson, Managing
Director, Natural Resources and Environment, U.S. General Accounting
Office
Mr. Chairman and Members of the Committee:
We are pleased to have the opportunity to comment on the Spokane
tribe's additional compensation claim for the Grand Coulee Dam and the
proposed legislative settlement, S. 1438. As you know, the Grand Coulee
Dam was constructed on the Columbia River in northeastern Washington
State from 1933 to 1942. When finished, the 550-foot high dam was the
largest concrete dam in the world. It is still the largest
hydroelectric facility in the United States. The Franklin D. Roosevelt
Reservoir, which was created behind the dam, extends over 130 miles up
the Columbia River and about 30 miles east along the Spokane River. The
reservoir covers land on the Colville Reservation along the Columbia
River and land on the adjacent Spokane Reservation along both the
Columbia and Spokane rivers. Under a 1940 act, the federal government
paid $63,000 and $4,700 to the Colville and Spokane tribes,
respectively, for the land used for the dam and reservoir. 1
---------------------------------------------------------------------------
\1\ Pub. L. No. 76-690, 54 Stat. 703 (1940), an act for the
acquisition of Indian lands for the Grand Coulee Dam and Reservoir, and
for other purposes, granted the United States title to Indian lands the
Secretary of the Interior designated as necessary for the Grand Coulee
Dam project and authorized the Secretary to determine the appropriate
amount to be paid to the tribes for lands so designated.
---------------------------------------------------------------------------
Subsequently, the Colville tribes pursued additional claims for
their lost fisheries and for ``water power values'' (i.e., a share of
the hydropower revenues generated by the dam from the use of their
lands) before the Indian Claims Commission. The Colville tribes'
fisheries claim was settled in 1978 for about $3.3 million. Under a
1994 Act--the Confederated tribes of the Colville Reservation Grand
Coulee Dam Settlement Act (P.L. 103-436, Nov. 2, 1994)--the Colville
tribes were awarded a lump sum payment of $53 million for lost
hydropower revenues and, beginning in 1996, annual payments that have
ranged between $14 million and $21 million for their water power values
claim. 2 The lump sum payment was made from the U.S.
Treasury, and the cost of the annual payments is shared between the
Bonneville Power Administration (Bonneville), which markets the power
generated at the dam, and Treasury.
---------------------------------------------------------------------------
\2\ Pub. L. No. 103-436, 108 Stat. 4577 (1994).
---------------------------------------------------------------------------
The Spokane tribe is currently pursuing similar claims. S. 1438,
introduced in July 2003, is a proposed legislative settlement for the
Spokane tribe's claims. While settlement proposals introduced in the
106th and 107th Congresses directed the settlement costs to be split
between Bonneville and the U.S. Treasury, S. 1438 provides that the
settlement be paid entirely out of the U.S. Treasury. 3 In
this context, you asked us to address the (1) impact of a settlement on
Bonneville if the costs were split between Bonneville and the U.S.
Treasury; and (2) possible allocation of settlement costs between
Bonneville and the U.S. Treasury. To meet these objectives, we relied
on information developed for a preliminary GAO report to the
Subcommittee on Energy and Water Development, House Committee on
Appropriations; 4 interviewed officials at Bonneville and
representatives of the Spokane tribe; and reviewed numerous documents
on the Colville and Spokane tribes' claims for additional compensation.
Our work for the Appropriations Subcommittee on Bonneville's financial
condition is continuing. We plan to issue our final report in June
2004. Also, as you know, we are continuing our review of Bonneville's
obligations for tribal fish and wildlife programs for this Committee.
See appendix I for a more detailed description of how we estimated the
impact of a settlement on Bonneville. We performed our work in
September 2003, according to generally accepted government auditing
standards. We provided a draft of this statement to Bonneville for
comment but did not receive a response in time to include in this
statement.
---------------------------------------------------------------------------
\3\ The legislative settlement proposals introduced in the 106th
Congress were S. 1525 and H.R. 2664. In the 107th Congress, the
proposals were S. 2567 and H.R. 4859. The proposals pending in the
108th Congress are S. 1438 and H.R. 1753. Under S. 1438 the settlement
costs would all be paid out of the U.S. Treasury, while under H.R.
1753, the settlement costs would be split between Bonneville and the
Treasury.
\4\ U.S. General Accounting Office, Bonneville Power
Administration: Long-Term Fiscal Challenges, GAO-03-918R (Washington,
D.C.: July 1, 2003).
---------------------------------------------------------------------------
In summary, we found the following:
A settlement with the Spokane tribe along the lines
provided to the Colville tribes would likely necessitate a small
increase in Bonneville's rates for power. While the rate increase would
amount to less than 20 cents per month per household, it comes at a
time when Bonneville's customers have already absorbed rate increases,
including those announced on October 1, 2003, of over 40 percent and
when the region's economy is experiencing difficulties. However, the
bulk of Bonneville's obligations in any settlement similar to the
Colville settlement will occur in the future, when the conditions
causing Bonneville's current financial difficulties will probably have
abated. Therefore, Bonneville's current financial difficulties should
not unduly influence current discussions about how to compensate the
Spokane tribe.
A reasonable case can be made to settle the Spokane
tribe's case along the lines of the Colville settlement--a one-time
payment from the U.S. Treasury for past lost payments for water power
values and annual payments primarily from Bonneville. Bonneville
continues to earn revenues from the Spokane Reservation lands used to
generate hydropower. However, unlike the Colville tribes, the Spokane
tribe does not benefit from these revenues. The Spokane tribe does not
benefit because it missed its filing opportunity before the Indian
Claims Commission. At that time it was pursuing other avenues to win
payments for the value of its land for hydropower. These efforts would
ultimately fail. Without congressional action, it seems unlikely that a
settlement for the Spokane tribe will occur.
Background
The Colville and Spokane Indian reservations were established in
1872 and 1877, respectively, on land that was later included in the
State of Washington. The Colville Reservation, of approximately 1.4
million acres, was created on July 2, 1872, through an executive order
issued by President Grant. The Spokane Reservation, of approximately
155,000 acres, was created by an agreement between agents of the
federal government and certain Spokane chiefs on August 18, 1877.
President Hayes' executive order of January 18, 1881, confirmed the
1877 agreement. In 2001, the Colville and Spokane tribes had enrolled
populations of 8,842 and 2,305, respectively.
The Indian Claim Commission was created on August 13, 1946, to
adjudicate Indian claims, including ``claims based upon fair and
honorable dealings that are not recognized by any existing rule of law
or equity.'' 5 Under section 12 of the Act that created the
Commission, all claims had to be filed within 5 years. Ultimately 370
petitions, which were eventually separated into 617 dockets, were filed
with the Commission. The great majority of the claims were land claims.
Settlements awards were paid out of the U.S. Treasury.
---------------------------------------------------------------------------
\5\ Pub. L. No. 79-726, Sec. 2, 60 Stat. 1049, 1050 (1946).
---------------------------------------------------------------------------
The Colville tribes filed a number of claims with the Indian Claims
Commission within the 5-year window--on July 31, August 1, and August
8, 1951. Their fisheries claim and water power values claim became part
of Indian Claims Commission Docket No. 181, which was originally filed
on July 31, 1951. The original petition for Docket No. 181 included
broad language seeking damages for unlawful trespass on reservation
lands and for compensation or other benefits from the use of the
tribes' land and other property. The tribes' original petition did not
specifically mention the Grand Coulee Dam. In 1956, Docket No. 181 was
divided into four separate claims. The tribes' fisheries claim became
part of Docket No. 181-C. In November 1976, over 25 years after the
original filing of Docket No. 181, the Indian Claims Commission allowed
the Colville tribes to file an amended petition seeking just and
equitable compensation for the water power values of certain riverbed
and upstream lands that had been taken by the United States as part of
the Grand Coulee Dam development. This amended water power value claim
was designated as Docket No. 181-D, and it was settled in 1994 by
Public Law 103-436.
The Spokane tribe filed one claim with the Indian Claims
Commission, Docket No. 331, on August 10, 1951, just days before the
August 13, 1951, deadline. The claim sought additional compensation for
land ceded to the United States by an agreement of March 18, 1887.
Furthermore, the Spokane tribe asserted a general accounting claim.
These two claims were separated into Docket No. 331 for the land claim
and Docket No. 331-A for the accounting claim. Both claims were jointly
settled in 1967 for $6.7 million. That is, the Spokane tribe settled
all of its claims before the Indian Claims Commission almost 10 years
before the Colville tribes were allowed to amend their claim to include
a water power values claim. In doing so, the Spokane tribe missed its
opportunity to make a legal claim with the Indian Claims Commission for
its water power values as well as its fisheries. At that time, the
Spokane tribe, as well as the Colville tribes, were pursuing other
avenues for compensation of water power values.
The Bonneville Power Administration was formed in 1937 to market
electric power produced by the Bonneville Dam. 6
Bonneville's marketing responsibilities have expanded since then to
include power from 31 federally owned hydroelectric projects, including
the Grand Coulee Dam. Under the Pacific Northwest Electric Power
Planning and Conservation Act of 1980 (Northwest Power Act), Bonneville
is responsible for providing the Pacific Northwest with an adequate,
efficient, economical, and reliable power supply. 7
Bonneville currently provides about 45 percent of all electric power
consumed in Idaho, Montana, Oregon, and Washington and owns about 75
percent of the region's transmission lines.
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\6\ Pub. L. No. 75-329, Sec. 2, 50 Stat. 731, 732 (1937).
\7\ Pub. L. No. 96-501, Sec. 2, 94 Stat. 2697 (1980).
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Bonneville Would Have to Recover Settlement Costs from Ratepayers, but
Magnitude of Rate Increase Would Be Small
A settlement requiring Bonneville to pay the Spokane tribe would
add to its costs of operation, and it therefore would probably pass
these costs to Bonneville's customers in the form of higher rates for
power. Bonneville is a self-financing agency, which means that it must
cover its costs through the revenue generated by selling power and
transmission services. Bonneville typically sets its rates for 5-year
periods in order to generate enough revenue to cover the costs of
operating the federal power system and to make its debt payments.
Assuming that the settlement with the Spokane tribe is similar in
nature to the settlement with the Colville tribe in 1994, the impact on
Bonneville's rates would be small. Under the settlement with the
Colville tribe, Bonneville has made annual payments since 1996 that
have ranged from about $14 million to $21 million. Currently,
Bonneville estimates that it will pay about $17 million per year over
the next 5 years. 8 In its negotiations with Bonneville, the
Spokane tribe has asked for about 40 percent of the Colville tribe's
settlement, which would amount to about $7 million annually from
Bonneville. Bonneville uses a rule of thumb to determine rate
increases: between $40 million and $50 million in additional annual
costs will lead to a rate increase of 1/10th of a cent per kilowatt
hour (kWh). Using this rule, we estimate that a settlement with Spokane
that is equivalent to 40 percent of the Colville settlement would lead
to an increase in rates of less than 20 cents per month per household
for a typical household relying solely on power from Bonneville, or a
0.5 percent increase in rates over current levels. 9
---------------------------------------------------------------------------
\8\ The payments are to be made in perpetuity, but Bonneville gave
us an annual estimate for the next five years that conforms to its 5-
year rate case planning horizon. While Bonneville will make these
payments to the Colville tribes, it will receive interest credits in
the amount of $4.6 million per year from the U.S. Treasury--also in
perpetuity--effectively reducing its payments by about 27 percent.
\9\ This estimate also assumes that Bonneville pays the entire $7
million per year. If Bonneville receives interest credits from Treasury
for part of the amount, the impact would be proportionally smaller.
---------------------------------------------------------------------------
Although the magnitude of the rate increase necessary to fund a
settlement with the Spokane tribe would be small, it comes at a time
when Bonneville's customers have recently faced large rate increases.
From 2000 through early 2003, Bonneville experienced a substantial
deterioration in its financial condition because of rising costs and
lower-than-projected revenues. As a result, Bonneville's cash reserves
of $811 million at the end of Fiscal Year 2000 had fallen to $188
million by the end of Fiscal Year 2002. To cope with its financial
difficulties, Bonneville raised its power rates for 2002 by more than
40 percent over 2001 levels. On October 1, 2003, Bonneville raised its
rates a further 2.2 percent. Despite Bonneville's current financial
difficulties, Bonneville predicts the conditions that led to the
financial problems--namely, consecutive years of low water conditions,
extreme market price volatility, and long-term contracts Bonneville
signed to buy power from other suppliers at a high cost, which are due
to expire in 2006--will abate. Therefore, because the bulk of
Bonneville's obligations in any settlement similar to the Colville
settlement will occur in the future, Bonneville's current financial
difficulties should not unduly influence current discussions about how
to compensate the Spokane tribe.
A Reasonable Case Can Be Made for Adopting the Colville Model in
Allocating Any Costs Associated with a Settlement for the
Spokane Tribe
A reasonable case can be made for having Bonneville and the U.S.
Treasury allocate any costs for the Spokane tribe's claims along the
lines agreed to for the Colville tribes. Any settlement would attempt
to re-institute a commitment the federal government made to the tribes
in the 1930s. Under the Federal Water Power Act of 1920, licenses for
the development of privately owned hydropower projects should include a
``reasonable annual charge'' for the use of Indian lands. 10
Originally, the Grand Coulee site was licensed, and the Spokane tribe
expected to receive annual payments for its lands used for the project.
However, the license was cancelled when the federal government took
over the project (federalized the project). Since the federal
government is not subject to the Federal Water Power Act, it was not
required to make annual payments to the tribes. Nevertheless, the
federal government made a commitment in the 1930s to make annual
payments to the Colville and Spokane tribes as if the project had
remained a nonfederal project. However, the federal government did not
follow through on this commitment after the project was completed and
started generating revenues from electricity sales in the 1940s. In
pursuing this matter, the tribes weathered various administrations and
changes in the federal government's Indian policy. In the 1950s and
1960s, the federal government actively sought to terminate its
relationship with a number of tribes, including the Spokane tribe.
---------------------------------------------------------------------------
\10\ Pub. L. No. 66-280, Sec. 10(e), 41 Stat. 1063, 1069 (1920).
---------------------------------------------------------------------------
In the early 1970s, when it became clear that the federal
government was not going to make these payments, the Colville tribes
were able to amend their claim with the Indian Claims Commission to
pursue this matter. After agreeing to the overall legitimacy of the
Colville tribes' claims, the Congress ultimately approved a settlement
that primarily required Bonneville to provide annual payments for water
power values. This settlement was a compromise to split the costs
between Bonneville and the U.S. Treasury. Bonneville is primarily
paying the recurring annual payments, and the U.S. Treasury's Judgment
Fund provided the one-time lump sum payment in settlement of the past
annual payments--$53 million. 11 The Spokane tribe, however,
had already settled its claim years earlier and therefore could not
file an amended claim with the commission. Nevertheless, since
Bonneville collects the annual revenues for the electricity generated
by the dam, it could be argued that Bonneville should make annual
payments to the Spokane tribe out of those revenues, as it does for the
Colville tribes; the U.S. Treasury would then pay a lump sum to settle
any claims for past years. The current House settlement proposal, H.R.
1753, and previous House and Senate settlement proposals introduced in
the 106th and 107th Congresses directed the settlement costs to be
split between Bonneville and the U.S. Treasury.
---------------------------------------------------------------------------
\11\ The Judgment Fund is a permanent indefinite appropriation
available to pay certain settlements and judgments against the federal
government.
---------------------------------------------------------------------------
It could also be argued that the U.S. Treasury should pay the
Spokane tribe's claim, as it does for most claim settlements against
the federal government. S. 1438 provides for the settlement of the
tribe's claim from the U.S. Treasury. However, we do not believe a
compelling case can be made to have the nation's taxpayers fully absorb
an additional cost of doing business associated with Bonneville's
production of power in one region of the country.
Conclusion
In conclusion, since the Spokane tribe missed its opportunity to
file claims with the Indian Claims Commission for its fisheries and
water power values, it is unlikely that the tribe's claims and any
associated settlement or final resolution will move forward in any
meaningful way without some form of congressional intervention. If the
Congress is satisfied with the merits of the tribe's claims, settlement
legislation, such as the current House and Senate bills, could be used
as a method to resolve the tribe's claims. A reasonable case can be
made for adopting the model established in the Colville settlement to
allocate the settlement costs between Bonneville and the U.S. Treasury.
Another option would be to enact legislation providing for some form of
dispute resolution, such as mediation or binding arbitration. If the
Congress has any doubts about the merits of the claim, it could enact
legislation to allow the tribe to file its claim in the U.S. Federal
Court of Claims. 12 The merits of the claims could then be
decided in court. Such an action was discussed in 1994 when the
Colville settlement was reached.
---------------------------------------------------------------------------
\12\ See, e.g., Pub. L. No. 95-280, Sec. 2, 92 Stat. 244 (1978),
Pub. L. No. 96-251, 94 Stat. 372 (1980), Pub. L. No. 96-404, 94 Stat.
1711 (1980), or Pub. L. No. 104-198, 110 Stat. 2418 (1996).
---------------------------------------------------------------------------
Contacts and Acknowledgments
For further information, please contact Robert A. Robinson on (202)
512-3841. Individuals making key contributions to this testimony
included Jill Berman, Brad Dobbins, Samantha Gross, Jason Holliday,
Jeffery Malcolm, Frank Rusco, Rebecca Sandulli, and Carol Herrnstadt
Shulman.Appendix I
Methodology for Estimating the Impact of a Settlement on the Bonneville
Power Administration
Because a settlement has not yet been negotiated, we used the terms
of the Colville settlement to estimate the potential effect of the
Spokane settlement on electricity rates in the Pacific Northwest.
Assumptions used in this calculation are designed to provide a
conservative (high-end) estimate of the impact of the settlement on
Bonneville's ratepayers. For planning purposes, Bonneville estimates
that payments to the Colville tribes total $17 million annually.
13 The Spokane tribe is requesting as much as 40 percent of
the Colville settlement, or approximately $7 million annually. To
estimate the impact of increasing costs on power rates, Bonneville uses
a rule of thumb that $40 million to $50 million in increased costs over
a year necessitate a rate increase of approximately $0.001 per
kilowatt-hour (kWh). Using this rule of thumb, a $7 million per year
cost increase would raise Bonneville's wholesale power rates by
approximately $0.00016 per kWh.
---------------------------------------------------------------------------
\13\ From Fiscal Year 2000 onward, Bonneville receives a $4.6
million interest credit on its Treasury debt payment to offset some of
the cost of the Colville settlement. Therefore, Bonneville's share of
the Colville payments total $12.4 million net of the credit. This
calculation conservatively assumes that Bonneville will be responsible
for the entire Spokane payment.
---------------------------------------------------------------------------
According to the Oregon Department of Energy, the average household
in Oregon uses approximately 1,000 kWh of electricity per month. An
average household in Washington uses 1,170 kWh of electricity per
month, according to the Washington Utilities and Transportation
Commission. Using the approximate rate increase calculated above, the
electricity bills for average households in Oregon and Washington would
increase approximately 16 cents and 19 cents, respectively. These
calculations assume that the household receives all its electricity
from Bonneville and that its retail utility passes through the
wholesale rate increase. The impact on the region as a whole would be
smaller because Bonneville provides only about 45 percent of the
region's power. Our calculations also assume that Bonneville would not
be permitted to deduct any portion of its payment to the Spokane tribe
from its debt payment to the U.S. Treasury. Public Law 103-436 enables
Bonneville to deduct a portion of its annual payment to the Colville
tribes as an interest credit on its Treasury debt payments. If a
similar provision were included for any payments for the Spokane tribe,
the impact on ratepayers would be reduced.
______
Mr. Hayworth. Now, as we consider H.R. 885, it is my
privilege again to recognize Governor Narcia for his testimony
on H.R. 885. Governor Narcia?
STATEMENT OF RICHARD NARCIA, GOVERNOR, GILA RIVER INDIAN
RESERVATION, ACCOMPANIED BY RODNEY B. LEWIS, GENERAL COUNSEL,
GILA RIVER INDIAN COMMUNITY
Mr. Narcia. Thank you, Mr. Chair. Chairman Calvert, Vice
Chairman Renzi, and members of the Subcommittee on Water and
Power, I am Richard Narcia, Governor of the Gila River Indian
Community, and I appreciate this opportunity to share with you
the Community's strong support for the Arizona Water Settlement
Act. I also take this opportunity to thank you, Representative
Hayworth, for your hard work and leadership in sponsoring this
important legislation. I also thank you, Senator Kyl, for his
steadfast support of the Community and for his commitment,
support, and dedication to our settlement.
This settlement is a monumental achievement for our
Community and enjoys the unanimous support of our council, nine
of whom are here with me today and are listed in my written
testimony.
The Gila River Indian Community was formerly established by
executive order in 1859. The community is comprised of the
Akimel O'odham, or the Pima, and the Pee Posh, or the Maricopa,
people. We are the largest Indian community in the metropolitan
Phoenix area. Our reservation encompasses nearly 600 square
miles with an enrolled membership of over 19,000.
Our history in the Phoenix Valley dates back thousands of
years. Some of the most ancient agricultural irrigation systems
in the world were built by our ancestors and can be found
throughout the metropolitan Phoenix area. Agriculture was a
mainstay of our community until very recent times. We are the
Akimel O'odham, the river people, and as I have stated, we have
resided in the Gila River Valley of Central Arizona for
centuries. We are the direct ancestors of the Hohokum, who
farmed the Gila River Valley since 300 A.D., developing
hundreds of miles of irrigation canals for crops such as corn,
squash, lima beans, tobacco, and cotton.
Together, the Akimel O'odham and the Pee Posh thrived on
what the Gila River provided--food, water for irrigation, a way
of life for our people. The river was our source of life and
the center of our economic and social environment. It provided
for all the community's needs, and as a result, the river
people were among the most prosperous and self-sufficient
communities, Indian and non-Indian, in the entire Phoenix
Valley. As settlers moved to the Phoenix Valley, the Community
adapted to and assisted the new settlers by providing food and
protection. Members of our Community formed components of the
first Arizona Territorial Guard.
This changed in the late 19th century. The settlements were
established upstream from our tribal lands, including farmers,
industry, and other landowners who began to divert water from
the Gila River. As the turn of the century approached, the
steady flow of the Gila River across our tribal lands
diminished.
Today, the Gila River does not flow. It is now a dry river
bed winding through our lands. The loss of the Gila River has
resulted in great poverty for many members of our Community and
has led to changes in our diet that has resulted in the highest
per capita incidence of diabetes of any community in the world.
In 1989, our Community and the U.S. Government initiated
water settlement negotiations to address the great uncertainty
and about the allocation and dependability of water supplies to
our reservation and to more than three million residents and
businesses of Maricopa, Pinal, Pima, Yavapai, Graham, and Gila
Counties in Central Arizona. Nearly 14 years later, we have
reached a comprehensive settlement of our Community's water
rights claims and the allocation and priority of water supplies
among the major water users in Central Arizona.
The benefits of this settlement for our Community are many.
Most importantly, it will guarantee a dependable water supply
to our lands. In total, we will receive an annual entitlement
of 653,500 acre feet of water, most of which will come from the
Central Arizona Project, which delivers approximately 1.5
million acre feet of Colorado River water annually to Central
Arizona. While this is only a fraction of the amount that we
are legally entitled to, it does provide our Community with a
new source of water to replace some of the Gila River water
that we have lost.
The settlement agreement will also ensure construction and
maintenance of the distribution system that would be needed to
allow delivery of the water to the reservation. Together, the
settlement water and the distribution system will enable our
Community members to farm tribal and allotted lands as well as
provide them an opportunity to escape poverty and participate
more meaningfully in the economy of the region. While there is
little chance that we can recapture the prosperity of our
ancestors, a settlement agreement will enable more tribal
members to participate in our ancestors' way of life.
As a result of this settlement, the Community will also
achieve a separate piece with non-Indian parties throughout
Arizona. We are convinced that this is the right path for the
Community at this time. There is no question that our presence
may be missed by other tribes who are involved in ongoing
litigation. However, the Community has deliberated on this at
length and has made its choice. This is not to say that this
was an easy choice. To achieve agreement, we, like all the
other parties, have had to make compromises. Some were harder
than others, but each was carefully considered and approved by
our council.
The settlement agreement encompassed in the Arizona Water
Settlement Act is the top priority of the Gila River Indian
Community. We have expended enormous amounts of time and
resources to reach this agreement with nearly every major water
user in Central Arizona. While our Community and each party to
this agreement will make sacrifices to fulfill this settlement,
we will do so in exchange for dependable supplies of renewable
water and a more certain economic future.
I again want to express my appreciation for the opportunity
to come before you this morning. In conclusion and for the
record, our settlement negotiations have been extremely
transparent. Anyone or any entity who had an issue or concern
with the settlement had a place at the negotiating table if,
and if they wanted to participate. We are very hopeful that the
Subcommittee will favorably consider this legislation and that
it will be enacted in this Congress. Thank you.
Mr. Hayworth. Thank you, Governor Narcia.
[The prepared statement of Mr. Narcia follows:]
Statement of The Honorable Richard P. Narcia, Governor,
Gila River Indian Community
Thank you Chairman Calvert and Vice Chairman Renzi, and members of
the Subcommittee on Water and Power. I am Richard Narcia, Governor of
the Gila River Indian Community. I appreciate this opportunity to share
with you the Community's strong support for the Arizona Water
Settlements Act (H.R. 885). I would also like to take this opportunity
to particularly thank you, Representative Hayworth, for your hard work
and leadership in sponsoring this important legislation. I would also
like to thank Senator Kyl for his steadfast support of the Community
and for his commitment and dedication to our settlement.
This settlement is a monumental achievement for our Community and
enjoys the unanimous support of our Council, ten of whom are here with
me today. For the record, I would like to acknowledge each of them:
Wally Jones, Eugene Blackwater, Jennifer Allison-Ray, Bernell Allison,
Sr., Cecil Lewis, Gordon Santos, Gerald Sunna, Christopher Soke, Sr.,
Jonathan Thomas and Harry Cruye. Finally, I would also like to
recognize and thank the members of the Community Water Negotiation Team
for their hard work in making this a reality, including Council members
who are also members of the Team--Harry Cruye, Jonathan Thomas, Chris
Soke, Dana Norris, the former Director of the Office of Water Rights,
Cecil Antone, the current Director of the Office of Water Rights, Rod
Lewis, the General Counsel for the Community, Ardell Ruiz, Harlan
Bohnee and Lee Thompson.
Introduction
By way of introduction, the Gila River Indian Community was
formally established by Executive Order in 1859. The Community is
comprised of the Akimel O'odham (Pima) and the Pee Posh (Maricopa)
people. We are the largest Indian Community in the Phoenix metropolitan
area, with a Reservation encompassing nearly 600 square miles and with
an enrolled population of over 19,000. We have a long history in the
Phoenix Valley, dating back thousands of years. Some of the most
ancient agricultural irrigation systems in the world were built by our
ancestors and can be found throughout the Phoenix metropolitan area.
Agriculture was the mainstay of our Community until very recent times.
The Arizona Water Settlements Act will help reestablish our
Community's access to renewable sources of water as compensation for
the Gila River water taken from the Tribe beginning over a century ago.
The return of dependable sources of water will enable more members of
our Community to participate in our agricultural heritage and enjoy a
better way of life.
The Arizona Water Settlements Act encompasses the largest Indian
water claims settlement in U.S. history. This agreement has been
negotiated over the last fourteen years by nearly all major water users
in central Arizona, including representatives of our Community, state,
local and other tribal governments, farming and industry. The agreement
establishes and prioritizes the allocation of water among these
parties. It concludes longstanding litigation that has been expensive
and disruptive to our Community and to others in central Arizona,
preventing us from planning future growth and impeding steps to achieve
economic stability and political harmony in the region.
The Arizona Water Settlements Act also provides a mechanism for
funding future Indian water rights settlements in Arizona and the
construction of new water distributions systems for Indian tribes in
the Phoenix Valley, as required under existing water settlement
agreements. Thus, it provides major benefits for other Arizona tribes,
both those that have already settled their water claims and are
awaiting the construction of their water systems, as well as those that
are seeking to settle their claims at some point in the future.
Our History
To fully appreciate the importance of the Arizona Water Settlements
Act to our Community and its future, I would like to briefly review our
history and the central role of water to our culture and economic
prosperity.
We are the Akimel O'odham, the People of the River. We have resided
in the Gila River Valley of central Arizona for centuries. The direct
ancestors of the Akimel O'odham, the Ancient Hohokum, farmed in the
Gila River Valley since at least 300 A.D., developing hundreds of miles
of irrigation canals to supply water for crops such as maize, squash,
lima beans, tobacco and cotton.
Together, the Akimel O'odham and Pee Posh thrived on what the Gila
River provided--a plentiful source of food for tribal members, water
for irrigation and a way of life for all the Tribes' people. The River
was our breadbasket and the center of our economic and social life. It
provided for all the Community's needs, and, as a result, the People of
the River were among the most prosperous, self-sufficient communities,
Indian and non-Indian, in the entire Phoenix Valley.
As settlers moved to the Phoenix Valley, our Community adapted to
and assisted the new settlers by providing food and protection. Members
of the Community formed a component of the first Arizona Territorial
Guard.
This all changed in late 19th century. New settlements were
established upstream from our Tribal lands, including farmers, industry
and other landowners, who began to divert water from the Gila River. As
the turn-of-the-century approached, the steady flow of the Gila River
across our tribal lands diminished, and with this dependable water
source went our vast farmlands and our ability to sustain all Members
of our Community.
Today, the Gila River does not flow through our Tribal lands. It is
now a dry river bed winding through the desert. The loss of the Gila
River has resulted in great poverty to many Members of our Community,
and has led to changes in our diet that have resulted in the highest
per capita incidence of diabetes of any community in the world.
Background to Arizona Water Settlements Act
Our struggle to regain the Gila River began in the early part of
the last century. In 1924, Congress authorized construction of the
Coolidge Dam as the primary feature of a new irrigation project--called
the San Carlos Irrigation Project--that would provide irrigation for
our Reservation. The 1924 Act was intended to address our loss of Gila
River water and, in so doing, fulfill the trust obligation of the
United States to our Community.
The 1924 Act was also to create a non-Indian component to this
irrigation project. Unfortunately, although the 1924 Act provided that
our component of this project was to be built before the non-Indian
portion, our portion was never completed, and what was built was never
adequately engineered or maintained. Thus, although the San Carlos
Irrigation Project was intended to create an irrigation project for
50,000 of the irrigable acres on our Reservation, it never served more
than 30,000 acres and today serves just over 15,000 acres.
In 1925, citing the 1924 Act, the United States sued water users
upstream of our Community in order to reestablish existing rights of
the Community in the Gila River. Unfortunately, the U.S. government, in
all candor, did not do a very good job in making its case on our
behalf, which resulted in greater frustration and increased federal
liability to our Community. Our frustration was fed by the fact that
when the Community sought to intervene itself in this litigation, the
United States actually opposed our intervention. As a result, we were
prevented then from actually participating in litigation that would set
the framework for our struggle to protect our water rights up to the
present day.
Ten years later, in 1935, this litigation ended in a settlement and
consent decree--called the 1935 Globe Equity Decree--which recognized
the Community's rights to 300,000 acre-feet of Gila River water each
year. This was far less water than our people had access to for
centuries prior to the settlement. Moreover, to this day, we have yet
to receive much more than 100,000 acre-feet annually of the amount
decreed in 1935. Thus, not only did the Community not receive
recognition of all its water rights in 1935, it has not even received
from the Gila River that to which the Globe Equity Court decreed it was
entitled.
As a result, our Community has been forced to continue its struggle
to vindicate its claims to water through litigation. First, in 1982, we
began an effort in federal district court to enforce the 1935 Decree
against upstream Gila River diverters. Second, we filed the single
largest claim for water rights in the Gila River Adjudication, a
separate State court proceeding begun in the mid-1970s to determine and
establish the priority of water rights in the Gila River system and its
tributaries. In this State court adjudication, we are claiming
approximately 1.2 million acre-feet of water annually from these water
systems and seeking judicial recognition that our water rights
supercede those of all other non-Indian users.
Absent the comprehensive water settlement contained in the Arizona
Water Settlements Act, we will have no choice but to continue to pursue
our water rights through this litigation. We will also have to explore
more actively any action we might have against the federal government
for its failure to adequately protect and develop our water resources
as required by its trust responsibility to the Community and its
statutory obligations under the 1924 Act.
The Settlement Agreement and Arizona Water Settlements Act
In 1989, our Community and the United States Government initiated
water settlement negotiations to address the great uncertainty about
the allocation and dependability of water supplies to our Reservation
and to the more than three million residents and businesses of
Maricopa, Pinal, Pima, Graham and Gila Counties in central Arizona.
Nearly 14 years later, we have reached a comprehensive settlement of
our Community's water rights claims and the allocation and priority of
water supplies among the major water users in central Arizona.
Our settlement is in many ways unique:
One, it is the largest settlement of Indian water rights
in U.S. history, at least to this date;
Two, it involves thirty-five separate parties, both
Indian and non-Indian, most of which have required separate
negotiations and agreements to resolve the specific issues raised
between them and the Community. It is a very large bundle of
compromises, each of which was thrashed out with the full consideration
of its implications and importance in the overall deal. Its very size
precludes the possibility of it being perfect, but the Community
recognizes that it would be unrealistic to expect perfection in a
settlement of this size and scope. I can assure the Subcommittee that
in each instance in which the Community has compromised, it has done so
with due deliberation by both the Water Negotiation Team and, when
necessary, the prior approval of the Council;
Three, our settlement is part of a more comprehensive
settlement of repayment issues between the United States and the
Central Arizona Water Conservation District. This settlement
establishes a unique framework for resolving funding and water supply
issues not just for our settlement and that of the Tohono O'odham
Nation, but also Indian water rights settlements already negotiated and
approved in the past, and those to come in the future. This settlement
component is critical to our settlement and without it, the settlement
will not work;
Four, although most Indian water settlements affect only
a single State, ours includes water users in New Mexico as well. A
number of the parties with whom we are settling are located in the
State of New Mexico in the Virden Valley. Moreover, we have worked
closely with the State of New Mexico to ensure our settlement does not
adversely affect the exchange rights that the State of New Mexico
obtained in the 1968 Colorado River Basin Project Act. We are now
actively exploring with the State of New Mexico, along with all the
other affected parties in the State of Arizona, means of potentially
implementing these exchange rights. If other New Mexico concerns or
interests are raised, we will, of course, do what we can to help to
address them;
Fifth, given the complexity of interests addressed in our
settlement, and the very large number of parties involved, as well as
our geographic location in close proximity to major metropolitan areas
in the Phoenix area, the Community has been obliged to serve as the
primary coordinator of all such negotiations and to work out issues
between parties as well as our own. This has been a major undertaking
on the part of the Community, but one that we believe is well worth the
effort. As we approach Congress for consideration of this major piece
of legislation, we can safely say that every essential issue that can
be resolved in the context of one individual Tribe's settlement has
been resolved; and
Sixth, the Community has actively sought out the views of
other parties potentially affected by this settlement, particularly
other tribes, in an effort to explain our settlement and alleviate any
concerns that we can. I have personally reached out to all other tribal
leaders in the State in this regard. I cannot guarantee that we
completely agreed with their concerns, but I know that we have made a
fair and reasonable effort to do so. My own experience with other
Indian water settlements in Arizona that were considered without any
consultation or consideration of other tribes' concerns is a major
motivation for me in this regard.
The benefits of this settlement for our Community are many. Most
importantly, it will guarantee a dependable supply of water to our
lands. In total, we will have an annual entitlement of 653,500 acre-
feet of water under the agreement. Most of this will come from the
Central Arizona Project, which delivers approximately 1.5 million acre-
feet of Colorado River water each year to central Arizona. While this
amount is only a fraction of the water to which we are legally
entitled, it does provide our Community with new water sources to
replace some of the Gila River water we have lost--our Community has a
strong desire for actually deliverable water rather than rights to
water that is not enforced.
The settlement agreement also will ensure construction and
maintenance of the distribution systems that will be needed to allow
delivery of water to the Reservation. Together, the settlement water
and distribution infrastructure will enable more of our Community
Members to farm Tribal lands and Allotted lands, as well as provide
them an opportunity to escape poverty and to participate more
meaningfully in the economy of the region. While there is little chance
that we can recapture the past prosperity of our ancestors, the
settlement agreement will enable more Tribal members to participate in
our ancestors' way of life.
I would note that all funds that the Community is to receive as
part of this settlement are being used solely for the development of a
viable water delivery system for our farmers. One portion of the funds
that the Community will receive from this settlement is to be used to
rehabilitate and finally build out the long-awaited San Carlos
Irrigation Project on our Reservation. Although authorized in 1924 and
intended by Congress to be built prior to any non-Indian portions of
that project, it never was completed and what was built has fallen into
substantial disrepair.
The Community has agreed to use most of the funds it receives for
that worthwhile end. The remaining balance is intended to assist the
Community in making the CAP water it receives in lieu of its rights to
the natural waters of the Gila River affordable for its Members and
Allottees. The Community has committed to supplement the funds it
receives from the settlement for this purpose.
As a result of this settlement, the Community will also achieve a
separate peace with non-Indian parties throughout Arizona. The
Community has struggled for this peace for many years, many times
working hand in hand with other Arizona Indian Tribes, such as the San
Carlos Apache Tribe. We are convinced that this is the right path for
the Community at this time. There is no question that our presence may
be missed by other tribes who are still involved in ongoing litigation.
However, the Community has deliberated on this at length and made its
choice.
This is not to say that our choice was easy. To achieve agreement,
we, like all other parties to this settlement, have had to make many
compromises along the way. Some were harder than others, but each was
carefully considered and approved by our Council. We view the package
as developed as one that is worthy of all our support.
The Arizona Water Settlements Act contains numerous benefits for
Arizona. It will eliminate uncertainty among Indian communities, state
and local government leaders, industry, farmers and other citizens,
concerning future water use in central Arizona. This will enable long-
term water planning to proceed for all concerned. The Act will help
settle drawn-out and costly litigation of water rights and damage
claims, enabling all parties to the settlement to refocus on future
economic planning and growth.
The Act also will help ensure that existing water use in central
Arizona and upstream of our Reservation on the Gila River will not be
disrupted or displaced by our claims. Through lease and exchange
agreements with the surrounding cities, the settlement provides for
unique new opportunities for the Community and the surrounding
municipalities to cooperate in their water use and planning. Finally,
the Arizona Water Settlements Act, more than any federal government
action since this water dispute began over a hundred years ago, will
help satisfy the United States' trust responsibility to our Community
and other Indian tribes. It will ensure dependable renewable water
supplies and delivery to Tribal lands, as partial compensation for
water taken from the Community, its Members and Allottees for over a
century.
Conclusion
The settlement agreement encompassed in the Arizona Water
Settlements Act is the top priority of the Gila River Indian Community.
We have expended enormous amounts of time and resources to reach this
agreement with nearly every major water user in central Arizona. While
our Community, and each party to this agreement, will make sacrifices
to consecrate this settlement, we will do so in exchange for dependable
supplies of renewable water and a more certain economic future. For our
Community, this settlement offers an opportunity for more of our Tribal
members to partake in the rich agricultural heritage of our ancestors,
the Akimel O'odham and Pee Posh.
I again want to express my appreciation for the opportunity to
appear before the Subcommittee today to share our views on this
historic legislation. We are very hopeful that the Subcommittee will
favorably consider this legislation and that it will be enacted during
this Congress so that our people--and so many other stakeholders in
Central Arizona--may finally begin to realize the benefits that will
flow from this long overdue water settlement.
Thank you.
______
[Response to questions submitted for the record by Governor
Narcia follows:]
Gila River Indian Community, Executive
Office of the Governor & Lieutenant Governor,
October 31, 2003.
Hon. Ken Calvert,
Chairperson, Water and Power Subcommittee of the House Committee on
Resources, Longworth House Office Building, Washington, DC.
Dear Chairman Calvert: Thank you for the opportunity to answer the
follow-up question you submitted after the Water and Power
Subcommittee's October 2, 2003, hearing on H.R. 885, Arizona Water
Settlements Act. The answer to the question you submitted is attached.
Your interest and participating in the consideration of this
important legislation is greatly appreciated by the members of the Gila
River Indian Community (Community).
Please contact me if the Community can be of any assistance in the
Committee's deliberations on H.R. 885.
Best Regards,
Richard P. Narcia,
Governor
Enclosure.
* * *
Question. Unlike other Indian Water rights settlements, which
frequently require the federal government to fund an open-ended
development trust fund, all of the funds made available to the
Community under H.R. 885 go exclusively to fund water development and
use on the Gila River Indian Reservation. Does this demonstrate the
Community's commitment to fully utilizing its water supply?
Answer. All of the federal money that goes to the Community under
H.R. 885 will go only to provide water for the Community's lands, the
means to use this water, or help with paying the cost of CAP water.
While we would certainly not be opposed to federal resources for other
tribal projects, we realize that the size of our water rights claims
and the resources needed to fulfill the promises made to the Community
in the 19th and 20th centuries already requires a substantial
commitment of federal resources. For that reason, we recognize that
certain components, like a development fund, would not be included in
our settlement.
The members of the Community are the descendants of the people who
farmed in the valley for thousands of years. We view our Settlement as
a way of preserving this fundamental part of our heritage.
Richard P. Narcia
______
Mr. Hayworth. Now, it is my honor to recognize Chairwoman
Joan-Saunders to testify on H.R. 885. Welcome.
STATEMENT OF VIVIAN JUAN-SAUNDERS, CHAIRWOMAN,
TOHONO O'ODHAM NATION
Ms. Juan-Saunders. Thank you. Good morning. I would like to
thank Chairman Calvert and members of the Committee for
scheduling this very historic day.
My name is Vivian Juan-Saunders. I am the Chairwoman of the
Tohono O'odham Nation. The Tohono O'odham Nation is located in
Southern Arizona. We have a land base of 2.8 million acres and
an enrolled membership of 28,000. I would like to thank you for
the opportunity to speak on the Arizona Water Settlement Act of
2003, which is a very critical issue for our people.
I would like to first express my appreciation to you,
Representative Hayworth, for cosponsoring the introduction of
the Settlement Act with Senator Kyl and recognize the other
members of the Arizona Congressional delegation for your
support, Mr. Renzi, Mr. Grijalva.
I would like to first of all recognize the extraordinary
efforts of the negotiating team in reaching a consensus on the
issues which enable the introduction of the amendments to the
Nation's 1982 water settlement. The negotiating team included
representatives of the Tohono O'odham Nation, our legislative
counsel, the San Xavier District, the Schuk Toak District, the
San Xavier allottees, the San Xavier Cooperative Farm, the
State of Arizona, the city of Tucson, Asarco Incorporated,
which is a copper mine, and Farmers Investment Company.
I would like to focus on the benefits which would be
realized by water users in the Tucson Management Area as a
result of the enactment and implementation of this Settlement
Act, with particular emphasis on the amendments.
One, what has historically been widespread uncertainty
regarding the rights of water users in the Tucson Management
Area will be transformed into certainty regarding these rights.
Two, receipt of several significant benefits under the
Southern Arizona Water Settlement Act was conditioned on final
dismissal of the underlying water litigation, United States v.
Tucson, including the annual delivery of 28,200 acre feet of
water within the San Xavier and Eastern Schuk Toak Districts of
the Nation, and collection of damages by the Tohono O'odham
Nation for failure of the United States to deliver water to the
districts.
In addition, the agreement by the Tohono O'odham Nation to
waive and release past and future water claims and past
injuries to water rights only takes effect on final dismissal
of the United States v. Tucson. By agreement among the parties
to the amendments, this lawsuit will be dismissed with
prejudice. Under the amendments, the waiver and release of
claims also extends to future injuries to water rights.
The parties' commitment to dismiss the lawsuit was
predicated on resolving longstanding differences of opinion
between the Tohono O'odham Nation, the San Xavier District, and
the San Xavier allottees regarding the division of water and
financial benefits under the Southern Arizona Water Rights
Settlement Act, and in our testimony, we have outlined how
these disputes have been resolved.
Four, a reliable source of funding is critical to the
timely implementation of the amendments. The interest on the
cooperative fund established under the Southern Arizona Water
Rights Settlement Act is inadequate to fund the cost required
to fulfill the obligations of the United States imposed by the
Southern Arizona Water Rights Settlement Act and the
amendments.
I would like to focus on the amendments and related
settlement agreement. First of all, the city of Tucson has
agreed to pay for the repair of sinkhole damage in the San
Xavier District on allotted lands and lands held in trust for
our Tohono O'odham Nation. Tucson has further agreed that the
Tohono O'odham Nation's claims for subsidence damages in the
San Xavier and Eastern Schuk Toak Districts are preserved and
will be processed pursuant to the procedures outlined in the
agreement.
Asarco, the copper mine, has agreed to accept Central
Arizona Project water for processing ore at the Mission Mine
and reduce groundwater withdrawals by an acre foot for each
foot of CAP water delivered. The intended effect of this
exchange is to stabilize or elevate the groundwater table in
the San Xavier District. Subject to receiving adequate security
to assure repayment, the Tohono O'odham Nation has agreed to
provide a loan to Asarco Mine to construct the CAP delivery
system to the mine.
Farmers Investment Company has agreed to various
limitations on its groundwater withdrawals affecting the San
Xavier District. The agreement will be recorded in the official
records of Pima County to assure the limitations bind
successors in interest.
And finally, certain provisions of Title I of the
Settlement Act are essential to implementation of the
amendments.
I would like to conclude by highlighting the new Federal
obligations under the amendments. First of all, Sections
311(c)(1) and (2) authorizes the Secretary to expend sums not
to exceed $215,000 for the San Xavier District and $175,000 for
the Eastern Schuk Toak District for groundwater monitoring
programs.
Second, Section 311(f) authorizes the Secretary to conduct
a feasibility study of the land exchange between the allottees
and Asarco Mine at a cost not to exceed $250,000.
I would like to conclude by sharing that it has been 28
years since the first lawsuit was filed to clarify water
claims. That was in 1975. It has been 21 years, 1982, since the
Southern Arizona Water Rights Settlement Act was passed here in
Congress. We believe that the passage of these amendments will
not only benefit the Tohono O'odham Nation, but benefit all
water users in Southern Arizona. We strongly urge you to
support the passage of these amendments and we, as a nation,
will continue to support any efforts in compromise on issues
that are still outstanding regarding water rights settlements
for other tribes.
We thank you for the opportunity to testify.
Mr. Hayworth. And Chairwoman Juan-Saunders, we thank you
for your testimony.
[The prepared statement of Ms. Juan-Saunders follows:]
Statement of Vivian Juan-Saunders, Chairwoman,
Tohono O'odham Nation
I. INTRODUCTION
Chairman Calvert and members of the Committee. I am Vivian Juan-
Saunders, Chairwoman of the Tohono O'odham Nation. The Nation's
Reservation is located in southern Arizona, has a land base of 2.8
million acres, and is the second largest Indian reservation in the
United States.
On behalf of the 28,000 members of the Nation, I thank you for the
opportunity to speak on the Arizona Water Settlements Act of 2003 which
is an issue of critical importance to our people. I would like to first
express my appreciation to Representative Hayworth who co-sponsored
introduction of the Settlements Act with Senator Kyl, as well as other
members of the Arizona delegation who have expressed their support.
I would also like to recognize the extraordinary efforts of the
negotiating team in reaching a consensus on the issues which enabled
the introduction of Amendments to the Nation's 1982 water settlement.
The negotiating team included representatives of the Nation, the
Nation's Legislative Council, the San Xavier District, the Schuk Toak
District, the San Xavier allottees, the San Xavier Cooperative Farm,
the State of Arizona, the City of Tucson, Asarco Incorporated and
Farmers Investment Company. Officials in the Interior Department also
actively participated in the negotiations.
The written testimony filed with this Subcommittee includes a
detailed summary of the Southern Arizona Water Rights Settlement Act of
1982 (``SAWRSA''); the Southern Arizona Water Rights Settlement
Amendments Act of 2003 (the ``Amendments''); and cost and appropriation
items related to the Amendments.
I would like to focus on the benefits which would be realized by
water users in the Tucson Management Area (``TMA'') as a result of the
enactment and implementation of the Settlements Act, with particular
emphasis on the Amendments.
1. What has historically been wide-spread uncertainty regarding the
rights of water users in the TMA would be transformed into certainty
regarding these rights.
2. Receipt of several significant benefits under SAWRSA was
conditioned on final dismissal of the underlying water litigation
(United States v. Tucson), including the annual delivery of 28,200
acre-feet of water within the San Xavier and eastern Schuk Toak
Districts of the Nation; and collection of damages by the Nation for
failure of the United States to deliver water to the Districts. (Under
the Amendments, the damage remedy would also apply to a failure of the
United States to complete the rehabilitation and extension of the
Cooperative Farm within stated deadlines.) In addition, the agreement
by the Nation to waive and release past and future water claims, and
past injuries to water rights, only takes effect on final dismissal of
United States v. Tucson. By agreement among the parties to the
Amendments this lawsuit will be dismissed with prejudice. Under the
Amendments, the waiver and release of claims also extends to future
injuries to water rights.
3. The parties' commitment to dismiss the lawsuit was predicated on
resolving long-standing differences of opinion between the Nation, the
San Xavier District and the San Xavier allottees regarding the division
of water and financial benefits under SAWRSA. These disputes have been
settled as follows:
(a) The Amendments provide an apportionment of water between
the Nation, and the San Xavier District and San Xavier
allottees.
(b) The Amendments provide the San Xavier District with the
option to cash out the construction costs of a new farm
authorized for construction under SAWRSA. If that option is
exercised, the District and the allottees will be entitled to
use the funds for a variety of purposes.
(c) The Nation has agreed to make a substantial financial
contribution to subjugate lands within the proposed extension
of the allottees' Cooperative Farm, provide working capital for
the Cooperative Farm and to remediate contaminated groundwater
within the San Xavier District. The amount of this contribution
significantly exceeds the appropriations required by the
Amendments.
4. A reliable source of funding is critical to the timely
implementation of the Amendments. The interest on the Cooperative Fund
established under SAWRSA is inadequate to fund the costs required to
fulfill the obligations of the United States imposed by SAWRSA and the
Amendments. This shortfall is addressed in the Amendments.
(a) The Amendments provide for a significant adjustment in
the principal amount of the Fund.
(b) The Amendments also provide for the deposit in the Fund
of all proceeds of sale of recharge credits received by the
United States in a managed recharge project in the Santa Cruz
River, using a portion of the 28,200 acre feet of effluent
water deliverable by Tucson under SAWRSA.
(c) The Amendments authorize the use of the Lower Colorado
River Basin Development Fund to pay identified costs of
implementing the settlement.
5. Under the Amendments and related Settlement Agreement:
(a) Tucson has agreed to provide $300,000 to repair sinkhole
damage in the San Xavier District on allotted lands and lands
held in trust for the Nation. Tucson has further agreed that
the Nation's claims for subsidence damages in the San Xavier
and eastern Schuk Toak Districts are preserved, and will be
processed pursuant to the procedures outlined in the agreement;
(b) Asarco has agreed to accept Central Arizona Project
(CAP) water for processing ore at the Mission Mine and reduce
groundwater withdrawals by an acre foot for each acre foot of
CAP water delivered. The intended effect of this exchange is to
stabilize or elevate the groundwater table in the San Xavier
District. Subject to receiving adequate security to assure
repayment, the Nation has agreed to provide a loan to Asarco of
up to $800,000 to construct the CAP delivery system to the
Mine; and
(c) Farmers Investment Company has agreed to various
limitations on its groundwater withdrawals affecting the San
Xavier District. The agreement will be recorded in the official
records of Pima County to assure the limitations bind
successors in interest.
6. Finally, certain provisions of Title I of the Settlements Act
are essential to implementation of the Amendments:
(a) SAWRSA did not identify the source for the 28,200 acre
feet of water. Title I identifies CAP agricultural priority
water as the source of water to satisfy the annual delivery of
the 28,200 acre feet identified in SAWRSA;
(b) Title I obligates the United States to firm the 28,200
acre-feet of CAP agricultural priority water to a municipal and
industrial delivery priority, with financial or in-kind
assistance provided by the State of Arizona; and
(c) Title I provides that unallocated CAP water and
dedicated funding will be available for future Indian water
settlements. These features of the Settlements Act are of
particular importance to the Nation in order to facilitate the
settlement of the Nation's remaining water claims in the Sif
Oidak District and portions of adjoining Districts which are
within the boundaries of the Pinal Active Management Area.
II. SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT ACT OF 1982
A. Overview of Settlement
In 1975 the Papago Tribe (now the Tohono O'odham Nation), the
United States and two individual Indian allottees, as representatives
of a class of Indian trust allotment landowners in the San Xavier
District, sued the City of Tucson and other water users in the Upper
Santa Cruz Basin, claiming damages and seeking to enjoin pumping of
groundwater (United States v. Tucson). There was concern that the
litigation would cast a cloud over the future of the Tucson area. Local
entities engaged in extensive negotiations with the United States and
the lawyers for the Indian parties and finally reached a settlement in
1982. In October 1982, Congress passed the Southern Arizona Water
Rights Settlement Act of 1982, 96 Stat. 1274 (``SAWRSA''), which
embodied the settlement.
The terms of the settlement called for the Nation to receive,
without charge, farm improvements, 66,000 acre feet of water annually,
the right to pump 10,000 acre feet of groundwater annually within the
San Xavier District and a $15 million trust fund. (Of the 66,000 acre
feet, 37,800 acre feet is the Nation's contracted Central Arizona
Project (CAP) water for the San Xavier District and the eastern Schuk
Toak District. 1 An additional 28,200 acre feet of the water
was to be acquired by the Secretary and delivered after United States
v. Tucson was dismissed.) The City was required to transfer 28,200 acre
feet of effluent water to the United States and, with the State and
other local entities, to contribute a total of $5.25 million to a
Cooperative Fund. Interest on the Cooperative Fund was available to the
United States for payment of the ongoing costs of implementing the
settlement. The San Xavier allottees' water rights were to be satisfied
out of water provided to the Nation in the settlement.
---------------------------------------------------------------------------
\1\ The Tohono O'odham Nation is the national government and
consists of Districts organized as political subdivisions of the
Nation. The San Xavier and Schuk Toak Districts are two of the 11
Districts of the Nation. The San Xavier District and the eastern
portion of the Schuk Toak District are within the Upper Santa Cruz
Basin and are part of the SAWRSA settlement.
---------------------------------------------------------------------------
The City, State and local interests timely performed all of their
obligations under the settlement and the Nation agreed to dismiss the
case. The San Xavier allottee landowners objected to certain aspects of
SAWRSA and opposed dismissal of the litigation.
In 1993, allottees filed a class action lawsuit (Alvarez v. Tucson)
in which they sought to enjoin groundwater pumping by the City and
others, and asserted more than $200 million damages. Individual San
Xavier allottees also filed a lawsuit in 1993 against the United States
(Adams v. United States) which asserted breaches of trust related to
the allottees' land and water resources, and sought declaratory and
injunctive relief. Dispositive motions in these lawsuits are pending
before the Court. Rulings on the motions have been suspended to allow
the SAWRSA parties to negotiate amendments which would resolve the
outstanding issues among the parties.
For many years, the Nation, the San Xavier District, the Schuk Toak
District, the allottees, the City of Tucson, the State of Arizona,
Asarco Incorporated and Farmers Investment Co. negotiated amendments to
SAWRSA that would allow full implementation of the settlement, provide
important clarification in the allocation of existing benefits, and
provide more flexible water use by the parties.
B. Specific Benefits and Obligations of Parties
The following is a summary of the substantive provisions of SAWRSA,
as amended by the Southern Arizona Water Rights Technical Amendments
Act of 1992 (106 Stat. 3256).
Nation's Benefits:
1. The United States is required to annually deliver 37,800 acre
feet of CAP water without the Nation having to pay any OM&R or capital
charges.
a. 27,000 acre feet for San Xavier District
b. 10,800 acre feet for eastern Schuk Toak District
2. The United States is required to improve and extend the
allottees' Cooperative Farm in San Xavier and to construct irrigation
works for a new farm in San Xavier to take the CAP water.
3. The United States is required to annually deliver an additional
28,200 acre feet of water suitable for agriculture, after the pending
water claims litigation is finally dismissed:
a. 23,000 acre feet to San Xavier District; and
b. 5,200 acre feet to eastern Schuk Toak District.
4. If the United States fails to deliver any of the 66,000 acre
feet in any year after October 1992, it must pay the Nation damages
equal to the value of the undelivered quantity of water (the deadline
was extended to June 30, 1993 by the Technical Amendments enacted in
1992).
5. The United States established a $15,000,000 Trust Fund which is
managed by the Nation, the interest from which can be used to develop
land and water resources within the Nation.
Nation's Obligations:
1. The Nation agreed to file a stipulation for dismissal of United
States v. Tucson, and to file in court the allottee class
representatives' petition to dismiss.
2. The Nation agreed to waive and release all past claims of water
rights or injuries to water rights, and to waive and release all future
claims of water rights. This waiver and release encompasses past and
future claims of federal reserved water rights in the San Xavier
District and the eastern Schuk Toak District. The waiver and release
does not take effect until United States v. Tucson is finally
dismissed.
3. The Nation agreed to limit pumping of groundwater:
a. To 10,000 acre feet per year in the San Xavier District;
and
b. To the 1981 pumping amount in the eastern Schuk Toak
District.
4. The Nation agreed to comply with the water management plan
established by the Secretary of the Interior.
City's Obligations:
1. The City agreed to make 28,200 acre feet of effluent available
to the Secretary.
2. The City contributed $1,500,000 to a Cooperative Fund, the
interest from which is for ``carrying out the obligations of the
Secretary'' under provisions of the settlement.
Other Obligations:
1. Other contributors to the Cooperative Fund were:
State of Arizona--$2,750,000
An amax, Cyprus-Pima, AS&R (``Asarco''), Duval & Farmers
Investment Co. (``FICO'')--$1,000,000
United States--$5,250,000
2. If United States v. Tucson was not dismissed by October 1985,
the Cooperative Fund was to be terminated and the contributed funds
returned to the contributors (this provision was deleted by the
Technical Amendments in 1992).
3. The United States is not obligated to annually deliver the
28,200 acre feet of water to the Nation until United States v. Tucson
is finally dismissed.
4. The United States is not obligated to pay the Nation damages for
failure to annually deliver any of the 66,000 acre feet of water until
United States v Tucson is finally dismissed.
5. The Nation can only use its settlement water within the Tucson
Management Area (TMA).
6. The Nation can sell or lease settlement water, but only within
the TMA.
III. SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT AMENDMENTS ACT OF 2003
The Southern Arizona Water Rights Settlement Amendments Act of 2003
(the ``Amendments'') appears as Title III in the Arizona Water
Settlements Act of 2003 (the ``Settlements Act''). Subject to the
satisfaction of all conditions to the effective date of the Amendments
(Section 302), the Amendments will clarify, restate, supplement and
modify the provisions of SAWRSA in the following respects:
1. The Secretary would be obligated to annually deliver 28,000
acre feet of water from the federal share of CAP water. The Secretary
and the State are required to cooperate in a program to firm this CAP
water to municipal and industrial delivery priority pursuant to the
obligations in Section 105 of Title I to the Settlements Act;
2. The Secretary would be required to rehabilitate and extend the
allottees' existing Cooperative Farm by a date certain, or pay
specified penalties. The Farm would be extended to 2,300 acres.
Rehabilitation of the Cooperative Farm would include bank stabilization
on the Santa Cruz River and repair of sinkholes;
3. Pursuant to an agreement between the Nation, the San Xavier
District and the allottees, the Nation would make a substantial
financial contribution for subjugation of lands within the proposed
extension to the Cooperative Farm, working capital for the Cooperative
Farm and a fund to remediate contaminated groundwater within the
District;
4. The San Xavier District would receive the option of taking cash
instead of construction of a new farm;
5. Penalties payable by the United States for failure to timely
perform its obligations with regard to the Cooperative Farm and its
extension would be payable to the Cooperative Farm Association;
6. The San Xavier District and the allottees would be entitled to
annually receive up to 35,000 acre feet of the settlement water for
beneficial use, subject to compliance with the Nation's water code;
7. SAWRSA does not provide for specific releases of claims for
future injuries to water rights. The release of claims for future
injuries to water rights would be required by the Amendments so long as
groundwater withdrawals outside the San Xavier District are in
compliance with State law and with the related Settlement Agreement;
8. The waiver and release of water rights by the Nation and the
allottees, other than the rights established in SAWRSA, would be
confirmed, clarified and made more explicit. One of the conditions to
the effective date of the Amendments would be final dismissal of the
litigation. As to any allottees who opt out of a class, their water
rights, if any, would be barred;
9. Lands acquired by the Nation outside the boundaries of the
Nation's Reservation which the Nation seeks to have taken into trust by
the United States will not include federal reserved rights to surface
water or groundwater;
10. SAWRSA now limits the Nation to pumping no more than 10,000
acre feet of groundwater per year within the San Xavier District, with
no provisions for underground storage and recovery. The Amendments
would create a deferred pumping storage account, with an initial credit
to recognize a portion of the groundwater allowance that has not been
pumped since 1983. Withdrawals from the deferred pumping storage
account could not exceed 10,000 acre feet in any year or 50,000 acre-
feet over any ten-year period. The Amendments would also allow direct
underground storage and recovery of surface water, in a manner similar
to that provided for under current State law. Comparable provisions are
made for pumping groundwater within the eastern Schuk Toak District.
The Nation could also pump additional groundwater during CAP shortage
periods and interruption in CAP deliveries;
11. SAWRSA now requires that all of the Nation's water be used
within the boundaries of the Tucson Management Area (TMA). The
Amendments would allow the Nation to lease its water outside the TMA,
after giving a right of first refusal to users within the TMA. It would
also allow the Nation to use a portion of its settlement water within
the Nation's Reservation outside of the TMA;
12. A new comprehensive Settlement Agreement among the Nation, the
allottee classes, the United States, the State of Arizona, the City of
Tucson, Asarco and FICO would be approved by the Amendments; and
13. Separate agreements would be entered into among the Nation,
United States, allottees and Tucson; the Nation, San Xavier District,
allottees, the United States and Asarco; and the Nation, San Xavier
District, allottees, United States and FICO. These agreements would be
confirmed and approved by the Amendments.
a. The Tucson Agreement provides:
(i) For the payment by the City of Tucson of $300,000 to
the San Xavier District to establish a sinkhole remediation
fund to be used to maintain and repair any future sinkholes
after the United States has completed its sinkhole repair
project; and
(ii) For the release by the United States and the allottees
of past, present and future claims for damages from
sinkholes or subsidence; release by the United States and
the Nation of past, present and future claims for damages
from sinkholes; and an administrative process for review by
the City of any claim of the Nation for damages from
subsidence before any court action is filed on such claim.
b. The Asarco Agreement provides:
(i) Up to 10,000 acre feet of the 35,000 acre foot
allocation of CAP water for use in San Xavier will be
delivered annually to Asarco for mining purposes in
exchange for an equivalent reduction in groundwater pumping
pursuant to a water agreement with the Nation;
(ii) Asarco will have an option to renew the existing on-
Reservation well site lease with the Nation for an
additional 25 year term;
(iii) Subject to adequate security to assure repayment,
the Nation agrees to loan Asarco up to $800,000 for
construction of a CAP delivery system repayable over a
period not to exceed 14 years;
(iv) Pursuant to A.R.S. Sec. 45-841.01, the Nation is
qualified to earn marketable storage credits which have an
assigned value under the Asarco Agreement and are used to
repay the Asarco loan and thereafter apportioned between
the Nation and the San Xavier District;
(v) With the exception of discharges of toxic or hazardous
substances to groundwater, certain claims for groundwater
contamination by Asarco are settled by Asarco payments of
water lease delivery charges into a settlement fund, with
Asarco making additional direct payment from its funds to
the extent of any shortfall in the scheduled payment
amount; and
(vi) Waivers and releases of all past and future claims by
the Nation, San Xavier District, allottees, United States
and Asarco related to withdrawal of groundwater by the
parties within the TMA.
c. The FICO Agreement provides:
(i) Limitation of 850 acre feet annual withdrawal of
groundwater by FICO within two miles of the exterior
boundaries of the San Xavier District;
(ii) Limitation of 36,000 acre feet annual withdrawal of
groundwater by FICO from all FICO lands;
(iii) Prohibition on FICO from selling groundwater credits
to third parties for withdrawal within three miles of the
exterior boundaries of the Tohono O'odham Nation;
(iv) Except as otherwise provided in (i), (ii) and (iii)
above, waivers and releases of all past and future claims
by the Nation, allottees, United States and FICO related to
withdrawal of groundwater by the parties within the TMA;
(v) FICO shall record the Agreement in the official
records of Pima County upon the effective date of the
Amendments; and
(vi) Terms of the Agreement are binding on heirs,
devisees, executors, assigns and successors of the parties.
IV. FUNDING COSTS UNDER AMENDMENTS
The following is a summary of the various provisions in the
Amendments that authorize use of the Lower Colorado River Basin
Development Fund. The summary first discusses federal obligations in
the Amendments that arise from obligations in SAWRSA and second new
federal financial obligations under Amendments.
A. FEDERAL OBLIGATIONS ARISING FROM SAWRSA
Section 304(c)(3)(B): Authorizes the Secretary of the Interior to
pay to the San Xavier District the sum of $18,300,000 in lieu of, and
in full satisfaction of, the obligation of the Secretary to construct a
``new farm'' in the San Xavier District including design and
construction activities relating to additional canals, laterals, farm
ditches, and irrigation works for the efficient distribution of water
described in section 303(a)(1)(A) of SAWRSA. Use of the funds is
regulated pursuant to section 304(f).
History of the Expenditure. Section 303(a)(1)(B) of SAWRSA directs
the Secretary, acting through the Bureau of Reclamation, to improve and
extend the irrigation system, including the design and construction of
additional canals, laterals, farm ditches and irrigation works,
necessary for the efficient annual distribution for agricultural
purposes of 27,000 acre feet of water referred to in 303(a)(1)(A) of
SAWRSA. Section 304(c)(3)(B) of the Amendments gives the San Xavier
District the option to cash out the construction benefit of a new farm
and thereby use the portion of the 27,000 acre feet annual distribution
not required for the existing or extended Cooperative Farm for other
purposes. Identification and retention of this amount in the Lower
Colorado River Basin Development Fund is a condition to the Amendments
becoming effective pursuant to Section 302.
Sections 308(d)(2)(A)(i) and (ii): Authorizes the Secretary to
enter into a contract with the San Xavier District and to pay a sum not
to exceed $891,200 for the development of a water management plan for
the San Xavier District and authorizes the Secretary to enter into a
contract with the Nation and to pay a sum not to exceed $237,200 for
the development of a water management plan for the eastern Schuk Toak
District.
History of the Expenditure. Section 303(a)(3) of SAWRSA directs the
Secretary, acting through the Bureau of Reclamation, to establish water
management plans for the San Xavier District and the eastern Schuk Toak
District, that have the same effect as those plans developed under
State law. Identification and retention of this amount in the Lower
Colorado River Basin Development Fund is a condition to the Amendments
becoming effective pursuant to section 302.
Section 310(a)(2)(A)(ii): Establishes that the Cooperative Fund may
be increased in principal by an amount not to exceed $32,000,000 based
on a determination by the Secretary that the additional funds are
necessary to carry out the Amendments and after providing notice to
Congress.
History of the Expenditure. Section 313(b)(3)(B) of SAWRSA provided
for an additional sum up to $16,000,000 which the Secretary determined
to be necessary to meet the Secretary's obligations, after providing
notice to Congress. SAWRSA provides that the $16,000,000 shall be
adjusted pursuant to Section 312(b)(2). Section 313(b)(2) states that
the adjustment represents the additional interest that would have been
earned by the Cooperative Fund had the monies been contributed
initially. The Technical Amendments to SAWRSA enacted in 1992
inadvertently dropped the reference to the means for calculating the
adjustment. Thus, the requirement to adjust the $16,000,00 existed
between 1982 and 1992.
Section 317(a)(1): Authorizes an expenditure of $3,500,000
(adjusted for fluctuations in construction costs) to construct features
of the irrigation systems described in Sections 304(c)(1) through (4)
that are not authorized to be constructed under any other provision of
law.
History of the Expenditure. Section 303(a)(4) of SAWRSA authorizes
the appropriation of up to $3,500,000, adjusted for fluctuations in
construction costs.
Section 317(a)(5): Authorizes an expenditure of $4,000,000 to carry
out Section 311(d).
History of Expenditure. Section 303(b)(1) of SAWRSA authorized the
Secretary to carry out a study to determine the available and
suitability of water resources within the Sells Reservation.
Identification and retention of this amount in the Lower Colorado River
Basin Development Fund is a condition to the Amendments becoming
effective pursuant to Section 302.
B. NEW FEDERAL OBLIGATIONS OF AMENDMENTS
Sections 311(c)(1) and (2): Authorizes the Secretary to expend sums
not to exceed $215,000 for the San Xavier District and $175,000 for the
eastern Schuk Toak District for groundwater monitoring programs.
History of the Expenditure. The tribal parties and the federal team
reached agreement on this new obligation prior to the introduction of
S. 3231, the Arizona Water Settlements Act of 2000. Identification and
retention of this amount in the Lower Colorado River Basin Development
Fund is a condition to the Amendments becoming effective pursuant to
Section 302.
Section 311(f): Authorizes the Secretary to conduct a feasibility
study of a land exchange between the allottees and Asarco at a cost not
to exceed $250,000.
History of the Expenditures. This is a new obligation. The
introduction of S. 2992, the Arizona Water Settlements Act of 2002,
included a land exchange study with Asarco but did not provide a
specific dollar amount for the study. The Amendments have included a
sum not to exceed $250,000. Identification and retention of this amount
in the Lower Colorado River Basin Development Fund is a condition to
the Amendments becoming effective pursuant to Section 302.
______
Mr. Hayworth. Let me yield at this juncture to my colleague
from Arizona because he, in exercising his Congressional
prerogative, would like to introduce the next witness.
Mr. Renzi. Thank you, Chairman. I want to take a minute to
share with my friends here today a little history and welcome
Chairwoman Kathy Kitcheyan from the San Carlos Apache Tribe. I
apologize for not having a better seat at the table for you.
You certainly deserve better.
Chairwoman Kathy Kitcheyan is a former teacher and educator
and longtime advocate on health and children's issues both
nationally as well as in Arizona. Chairwoman Kitcheyan was the
first woman elected to the Chair position of her tribe in a
long history of great leaders of the Apache Nation.
I want to thank you for coming here today. I know that you
have had some concerns and we all listen with interest.
Welcome.
Mr. Calvert. Thank you, Mr. Chairman.
Ms. Kitcheyan. I guess that means it is my turn.
Mr. Hayworth. Yes, ma'am, Madam Chairwoman. It is your turn
to testify. Welcome.
STATEMENT OF KATHY W. KITCHEYAN, TRIBAL CHAIRWOMAN, SAN CARLOS
APACHE TRIBE, ACCOMPANIED BY JOE SPARKS, SPECIAL COUNSEL, SAN
CARLOS APACHE TRIBE
Ms. Kitcheyan. Thank you very much. I feel like I need to
say this because the day before and today, I feel like I am a
woman with very few friends in Washington, D.C., so I want to
point out something in this room. That man over there, Morris
Udall, was a true friend of Apache people, him and his brother
Stewart. I interned for him in the 1970s under the National
Indian Youth Council, and I hope I have a friend here today.
Having said that, I would like to say good morning. J.D.
Hayworth, from the Great State of Arizona and Congresswoman
Napolitano, and sir, I don't know your name, I am sorry--Steve
Lanich, OK. Good morning, sir. Kyle Weaver. And, of course, our
Congressman, Rick Renzi. Thank you for that introduction.
You have my written testimony, so I am not going to read it
verbatim. You guys all have a master's or doctor's degree and I
am sure you can read that on your own.
Anyway, today, I am here alone with two of my council
members, Mary Moses and Karen Kee, and also our attorney, Joe
Sparks. Our reservation was first established with a treaty in
1852, and in the beginning, our reservation was over two
million acres. But due to the greed of ranchers and farmers and
unscrupulous politicians, it was reduced five times. Why?
Because they discovered copper, silver, gold, and water. Had
that not been done, our unemployment rate today would not be 76
percent. It was about money then, and today, I personally feel
that it is about money, too.
I, along with many other friends and relatives, were raised
on the banks of the Gila River. It flowed well in those days.
It was our playground and also sustained our crops. Many of our
people had their own gardens. With the eventual growth of the
mining industry, expansion of the ranching and farming
community upstream, the flow of the Gila River slowed down
tremendously. According to the Globe Equity Decree of 1935, the
San Carlos Apaches are supposed to get 6,000 acre foot of water
to irrigate 1,000 acres. But today, we barely get enough water
to irrigate 400 acres. Imagine that. There have been occasions
when the water commissioner calls to tell us to turn off our
river pumps while Upper Valley users have their pumps running
24 hours a day.
Under this proposed legislation for CAP water, we will most
likely pay $74 per acre foot, while non-Indians pay anywhere
from $26 to $28 per acre foot. This is such a disparity. I say
it is a severe injustice and discriminating.
The other issue, Coolidge Dam, named after one of our
Presidents, Calvin Coolidge, synonymous with San Carlos Lake.
This Act will certainly result in its destruction. Imagine
that. It would be a national disgrace because it is named after
one of our Presidents.
It will also choke off a large majority of the natural
surface flow from the Gila River and encourage the discharge of
sewer water into the river by upstream communities.
If Coolidge Dam dies also, millions of birds and fish will,
too, including species listed under the Endangered Species Act,
the Southwestern willow, the flycatcher, the razor back sucker,
and the bald eagle. This is why our tribe has tried for decades
to get a minimum pool established in the lake of at least
75,000 acre foot, and I believe J.D. Hayworth was instrumental
a few years back in helping us with that. We can store our CAP
water here, but only if we can pay that $74 per acre foot for
the CAP water.
In our treaty with the U.S. Government, they have agreed to
uphold its trust responsibility in the protection of land,
natural resources, and water. We, as Apaches, have also pledged
to be loyal and law abiding in all areas. We have lived up to
our end of the bargain, even though we were not made citizens
until 1924, even though we did not have the voting franchise
until 1948. We have been loyal to the government. All we are
asking for in this settlement is equity and fairness. It is not
a window of opportunity for us. There is no benefits for us as
the bill is written and we would like equal funding for the San
Carlos Apaches.
In our culture, water is very sacred, and this may be
difficult for some of you to understand, but it is the lifeline
of our existence, along with our language, our culture, and our
spirituality. Therefore, it is not about fame. It is not about
money. And it is not about power.
Thus, we should not be taken lightly. Just because we are a
small tribe with no political clout and just because we are a
tribe with limited financial resources and can't contribute for
someone's reelection, that does not mean we should get the
scraps. We are a proud and honorable people and will continue
to talk in good faith to anyone that will listen to us. And we
certainly appreciate the efforts of Mr. Renzi and anyone that
will help us.
Thank you very much, Mr. Hayworth.
Mr. Hayworth. And Chairwoman Kitcheyan, we thank you very
much for your testimony.
Representing the State of Arizona, Mr. Herb Guenther is
here, and we would appreciate your testimony, sir.
STATEMENT OF HERBERT R. GUENTHER, DIRECTOR,
ARIZONA DEPARTMENT OF WATER RESOURCES
Mr. Guenther. Thank you, Mr. Chairman, members. I am here
on behalf of Governor Janet Napolitano, who sends her regards
and her testimony will be introduced into the record.
I am not going to speak to the comments, as you can all
read the comments as far as our participation within the bill.
The State of Arizona strongly supports the bill as it stands
today and will continue to work on those aspects of the bill
that need some finishing touches, as well as those which are
currently in negotiation, such as Title IV.
This effort has taken, at least a couple of the titles,
over 30 years to bring to closure. There are a lot of people
who have a good portion of their lifetime invested in this
settlement. It is an extremely complex settlement, as you can
imagine, involving well over two-thirds of the water users in
the State of Arizona. So just by its nature, it is extremely
delicate. It is a house of cards with each card maintaining a
certain--sharing the burden of the rest.
The main issues here that give us comfort is primarily the
stipulated settlement of longstanding litigation. All three
titles that are active have brought to closure extended
litigation, and hopefully, those will go a long way to giving
people a longer predictability, more predictability about their
water supply, and therefore, more reliability and the realism
that, in fact, they can plan for their future accordingly.
Again, Mr. Chairman, members, we support the legislation in
its entirety and we pledge our continuing participation in
trying to resolve those outstanding issues and bringing those
to successful closure, as well. I stand ready to answer any
questions.
Mr. Hayworth. Mr. Guenther, thank you very much.
[The prepared statement of Governor Napolitano follows:]
Statement of The Honorable Janet Napolitano, Governor,
State of Arizona
Chairman Calvert, and Members of the Subcommittee:
Good morning, and thank you for the opportunity to present the
views of the State of Arizona on H.R. 885, the Arizona Water
Settlements Act of 2003.
It is now time for Congress to confirm the agreements reached after
many years of intense negotiations and compromise. With passage of H.R.
885, and implementation of the settlements, Arizona will embark on a
new age of water resource planning, usage and cooperation.
The legislation encompasses multiple Titles to resolve many
longstanding water disputes in Arizona. Additionally, it provides
benefits to New Mexico. Each Title addresses a particular settlement
agreement, and provides the congressional authorization and funding
needed to implement the settlement. Many times in the past, Congress
has been faced with enacting legislation to authorize settlements that
have not been finalized. I am pleased to inform the Committee members
that the three settlement agreements to be ``authorized, ratified, and
confirmed'' by Act of Congress have been executed by the State of
Arizona, the tribes, and nearly all of the non-Indian parties, except
the Secretary of the Interior. The Secretary requires congressional
authorization prior to signing the settlements. There is no question
that the parties intend to settle the issues, and, in fact, many of the
parties are carrying out their government functions as if the
settlements were already final.
This legislation is vitally important to the future of Arizona, in
economic terms, in meeting water management goals, and in furthering
our relations with our tribal citizens. H.R. 885 will provide the
mechanisms to resolve two major tribal water settlements immediately,
and will provide the United States and non-Indian parties additional
tools to resolve water rights claims of other Arizona tribes. It
establishes a means for acquiring water and funding for future tribal
water rights settlements.
Let me provide some highlights of each Title and why each is so
important to all the people of Arizona.
Title I: Central Arizona Project Settlement
Since statehood in 1912, Arizonans have dreamed of bringing
Colorado River water to the cities and farms of central Arizona. It was
the great Senator Carl Hayden's dream. The recently deceased John
Rhodes, former House minority leader, claimed passage of legislation to
authorize the Central Arizona Project (CAP) as his greatest achievement
in his 30 years in Congress. The CAP authorization became a reality in
1968 and by 1985 the CAP was delivering Colorado River water to farms
and communities, as a replacement for groundwater. It continues to be
our lifeblood, allowing many Arizonans to weather the drought
conditions of eight of the last nine years. We continue to enhance the
use of CAP, and this legislation furthers the State's water management
goals utilizing the CAP.
Title I is consistent with, and in furtherance of, the intent of
the stipulated settlement approved by the U.S. District Court of the
litigation between the United States and the Central Arizona Water
Conservation District (CAWCD) over the amount of repayment for the CAP.
This Title also resolves other non-contract issues between the United
States and the non-Indian CAP water users. Further, Title I provides
the means to acquire the water supplies and funding necessary for the
settlements in the other Titles of H.R. 885, and for future tribal
water settlements.
Final division of the Colorado River water for the CAP between the
state users and the federal users is important to the State. With this
legislation, approximately 47% of the CAP will be dedicated for use by
Arizona Indian tribes. The rest has been, or will be, allocated among
the many Arizona non-Indian municipal, industrial and agricultural
users. As part of Title I, 65,647 acre-feet of CAP high priority rights
will be reallocated to Arizona cities, towns and water companies for
municipal and industrial use. This reallocation has been pending for
years after an extensive public process by the Arizona Department of
Water Resources.
To acquire water for tribal water settlements, Title I provides a
mechanism for agricultural interests to relinquish their CAP
subcontracts in return for debt relief from Section 9(d) of the
Reclamation Project Act of 1939 totaling $158 million (shared by the
federal government and state interests). Additionally, Title I provides
for waivers of water rights claims by certain Indian tribes, and
regulatory relief from the Reclamation Reform Act (RRA). It is
important to the State that the water for tribal settlements, over and
above that contributed by the parties, be acquired water from willing
rightholders and not water taken by the federal government. Early
tribal settlements were based on this concept, but in the 1990s the
Secretary and Congress allocated water for settlements despite concerns
raised by the State. We hope that the provisions of Title I can be a
precedent for settlements throughout the country.
The 1982 Reclamation Reform Act (RRA) has prevented the State from
making full use of the CAP, which was designed to replace existing
groundwater use for agriculture. Some lands are not eligible to receive
CAP water due to RRA and are instead still irrigated with groundwater.
Additionally, the administrative costs of implementing RRA in Arizona
outweigh any perceived benefits to the government. The relinquishing
districts would then be able to purchase CAP water over the next 30
years from year-to-year agriculture pools at an affordable price. RRA
relief for the agricultural districts within the CAP service area, as
provided in Title I, furthers implementation of the Arizona Groundwater
Code, and our effort to preserve our depleted groundwater supply for
future generations.
The water acquired pursuant to the CAP agricultural subcontract
relinquishments will be used in the water budgets for the Gila River
Indian Community settlement in Title II, for the Tohono O'odham Nation
settlement amendments in Title III, and provide the Secretary of the
Interior with additional water for future Arizona tribal water
settlements, for a total of 197,500 acre-feet of water. Up to an
additional 96,295 acre-feet will be provided for the State to hold in
trust for a period of time and then reallocate to municipal and
industrial water users in Arizona.
Title I also authorizes an agreement between Arizona and the
Secretary to share in the ``firming'' of 60,648 acre-feet of the tribal
CAP water to make it a more reliable water source for tribes to use for
municipal and industrial purposes. Firming is the process of storing
water underground today to be used when the dedicated surface water
supply is lacking due to shortages. The State is obligated to firm
15,000 acre-feet for the Gila River Indian Community Water Rights
Settlement, and another 8,724 acre-feet for future Arizona Indian
tribal settlements. Through the Arizona Water Banking Authority we have
begun a process to identify the best ways to meet this obligation, and
to examine whether additional state law authorizations are needed, as
well as funding options.
Arizona has been concerned in the past about proposals to market
water out-of-state, in derogation of the Law of the River, the Indian
non-intercourse acts, and other applicable laws. The Law of the River
includes several U.S. Supreme Court decisions, two multi-state
compacts, and numerous acts of Congress concerning the use of the
Colorado River. We believe that uses of the Colorado River must be
consistent with this body of law.
Title I clearly prohibits the direct or indirect marketing of CAP
outside the boundaries of the State of Arizona. However, it would not
impact the existing interstate banking agreements with California and
Nevada through the Arizona Water Banking Authority. Nor would it affect
any exchange necessary for the New Mexico Unit of the CAP as authorized
in 1968. The State has been negotiating with the State of New Mexico
over proposed changes to confirm that New Mexico can develop the CAP
New Mexico Unit as envisioned in the 1968 Act.
Funding of tribal water settlements has been a problem in the past.
Tribes are asked to give up potential large paper water rights in
return for a reasonable water budget and the ability to make use of the
water. Use of water involves development funds for on-reservation
projects. As you know, the appropriations process is difficult and may
continue to be so in the future.
Title I outlines the intended uses for the Lower Colorado River
Basin Fund (Fund) over the next 40 years. The Fund consists of payments
by the non-Indian CAP water users and power revenues of the CAP. These
sources will continue to flow into the Fund until the CAP is fully
repaid. Under Title I, the revenues in the Fund are redirected to be
used to reduce the cost of delivery of water to tribal water users, to
finance current and future tribal water settlements and to finance CAP
distribution systems on tribal lands. It is important to note that this
funding is for the long-range water and economic development needs of
Indian tribes.
Other issues resolved in Title I include clarifying that CAP
contracts, whether tribal or non-Indian, are for permanent service
within the meaning of the Boulder Canyon Project Act and for a term of
service of 100 years. It also resolves the long-standing dispute
between the Secretary and CAWCD about how shortages will be shared by
users of the CAP.
The provisions of Title I have been memorialized in the Arizona
Water Settlement Agreement (Agreement), among the CAWCD, the Director
of the Arizona Department of Water Resources, and the Secretary of the
Interior. CAWCD and the Director signed the Agreement last year, but
the Secretary will need to complete the National Environmental Policy
Act process before signing. Finishing the Agreement will further the
stipulated settlement of the repayment litigation in U.S. District
Court, which could not be completed without passage of H.R.885.
Title II: Gila River Indian Community Water Rights Settlement
Coronado visited the Pima Indians of what is now central Arizona in
1540. There the conquistador bought grains from lush tribal fields
along the Gila River. The current Gila River Indian Community
(Community), made up of two tribes, the Pima and the Maricopa, are the
descendents of those Indians visited so long ago by Spanish explorers
and missionaries. These tribes assisted the U.S. Cavalry in the Indian
wars, sold grain to American settlers, and its members have volunteered
to serve in many overseas conflicts. One such member was Ira Hayes who
helped raise the United States Flag over Iwo Jima.
With a history of farming they have fought in the courts for
decades for their water rights. Over the last two decades negotiations
have been held. In the last year we finally succeeded in reaching a
settlement. Title II would authorize the Secretary to sign the Gila
River Indian Community Water Rights Settlement and provide the ways and
means needed to make it a reality.
The State participated in this settlement in many roles, that of
facilitator, water rights holder, and protector of state policies and
interests. Additionally, the State attempted to make the settlement
acceptable for small water users unable to represent themselves in the
negotiations. After enactment of the congressional settlement
legislation, Arizona must address and enact changes to Arizona law
consistent with the settlement to bind all citizens to the settlement,
now and in the future. A State does not commit lightly to changing its
laws, but in this case it will not only address issues presented by the
settlement, but also serve the water management goals of the State. To
this end the Arizona Department of Water Resources, the Arizona Game
and Fish Commission and the Arizona State Land Department represented
the State in negotiations. I will outline the State's policy
considerations.
A major goal of any Indian water rights settlement is finality.
Title II confirms an overall final water budget for the Gila River
Indian Community and provides strict accounting of that budget, funding
to allow utilization of the water, and broad waivers of claims by the
Community and the United States as trustee to pending and future court
claims to water rights.
In the General Stream Adjudication of the Gila River and its
sources, the Community and the United States claim between 1.5 million
and 2 million acre-feet of water from all sources. The Gila River
bisects the Community, which has proven uses of Gila River and
groundwater since before recorded history. It is not a matter of
whether the Community is entitled to water; it is a question of how
much.
In the settlement, the Community has agreed to an overall water
budget of 653,500 acre-feet annually, calculated on a rolling average
over 10 years. The sources of the water are Gila River water, Salt/
Verde River water, groundwater, exchanged reclaimed water, and Central
Arizona Project (CAP) water. Well over one-half of the proposed water
budget is currently under the legal control of the Community. It has a
CAP contract for 173,100 acre-feet, a time-immemorial right to over
200,000 acre-feet Gila River water under the Globe Equity decree
(125,000 acre-feet of reliable water in the tribal water budget), 5,900
acre-feet of Salt/Verde River water under the Haggard Decree, and the
sovereign right to pump their own groundwater outside of State
regulation. Part of this settlement is recognition of rights already
held and used by the Community, with methods to improve those existing
uses. Attached to my statement is an outline of the Community
settlement water budget.
The primary source of additional water for the Community's water
budget is CAP, with some contributed Salt/Verde River water and
exchanged reclaimed water. Some parties contribute CAP water, but the
largest block is from the CAP subcontract relinquishment pool
established under Title I, approximately 102,000 acre-feet of lower
priority water used for agriculture. The final piece to the water
budget came from creative thinking by the Phoenix area cities. The
cities of Mesa and Chandler will exchange highly treated reclaimed
water with the Community for Community CAP water on a 5 to 4 ratio.
This creative thinking solves several water management issues and
benefits Indians and non-Indians. In fact, the two cities have already
entered into the agreements necessary to make the exchange, beginning
the construction process prior to enactment of this legislation. The
Community and the United States are prohibited from seeking water above
the proposed water budget.
In exchange for this water budget and funding to make use of the
budget, the Community and the United States are granting broad waivers
to all the citizens of Arizona of past, present, and future court
actions on water rights, subject to some retention of rights to enforce
the benefits of the settlement. Arizona insisted that this be a final
settlement of the Community's claims to water.
A benefit to settlements is to make partners out of combatants. An
example of this, to be confirmed in the settlement, is the relationship
between the Gila River Indian Community and the San Carlos Irrigation
and Drainage District (SCIDD). SCIDD and the Community share in the San
Carlos Indian Irrigation Project run by the Bureau of Indian Affairs.
Sharing water of a project operated by an under-funded federal agency
has strained the relationship. Through the settlement, SCIDD and the
Community will enter into a new relationship, dividing the project
features and taking over responsibility for operating their own
systems. The settlement also provides funding to rehabilitate the
existing unlined system to make better use of limited water supplies.
SCIDD and the Community now share common goals and work together as a
team. This is but one example of how this settlement is making
neighbors out of antagonists.
I will, at this point, list the parties to separate agreements
(settlement, exchange, lease, or otherwise) that are part of the
overall Community settlement confirmed by H.R. 885. The parties are:
The Salt River Project;
Phelps Dodge Corporation;
The irrigation districts and many towns and cities in the
Upper Gila River Valley and the San Pedro River, including New Mexico
rightholders;
Arlington Canal Company and the Buckeye Irrigation
Company;
Maricopa-Stanfield Irrigation and Drainage District;
Central Arizona Irrigation and Drainage District;
San Carlos Irrigation and Drainage District;
The Cities of Mesa and Chandler;
Arizona Game and Fish Commission; and
Phoenix area cities with leasing arrangements.
Some of these separate agreements further the water management
goals of the State. For example, the ability of various cities to lease
high-priority CAP water from the Community for 100 years is important
in meeting Assured Water Supply requirements under state law for new
subdivisions. The reclaimed water exchange agreements between the
cities and the Community provide the Community with a reliable source
of water for agriculture, and assist the cities in making full reuse of
treated effluent.
The Upper Gila Valley settlements provide many benefits. Not only
do the settlements end long-standing contentious litigation before the
Globe Equity Court, between the large irrigation districts and the
Community, but also provide a basis for future settlements. The
irrigation districts have agreed to permanently reduce irrigation
acreage for the benefit of the Community, and if there were a future
settlement with the San Carlos Apaches, the districts would permanently
reduce additional irrigation acreage. The irrigation districts have
also agreed to a cap on combined diversions and groundwater pumping;
real reductions in water use, to the benefit of the river's health, the
Community, and the San Carlos Apache Tribe.
In past Indian settlements, States have been asked to make
financial contributions to settlements. In previous Arizona Indian
tribal water settlements, the State has provided an appropriation to
the tribal development fund. The State's contribution to the Community
settlement is structured differently. First, the State believes that
the CAP water that is being relinquished is a state contribution. It
was originally part of the non-Indian allocations of the CAP. We have
agreed to this division of water in Title I and urge its use for the
Community's settlement. The financial aspect for the State in this
settlement may be large as time goes by, but it does not include any
contribution to the Community development. Instead the State has agreed
to firm up to 15,000 acre-feet of low-priority CAP water. Title I
outlines this commitment but leaves the details to a future agreement
with the Secretary about firming of tribal supplies Through the Arizona
Water Banking Authority we are in the process of analyzing how this
will be accomplished. It may involve millions of dollars to bank an
amount necessary to firm the water to municipal and industrial delivery
priority.
One of the separate agreements involves protection of groundwater
in the areas south of the Gila River Indian Reservation. By changes to
state law, the State will limit the use of groundwater in specific
areas adjacent to the reservation to help protect tribal groundwater.
To further ensure that the restrictions benefit the aquifer for the
Community, the State will authorize and supply a water replenishment
bank. The settlement outlines the goals of the replenishment bank but
leaves implementation up to the Arizona Legislature. By enacting state
legislation we will bind all future water users in that protected area
to the settlement. This replenishment bank may involve millions of
dollars.
Water uses in other areas within the Gila watershed are also of
concern to the Community, including groundwater users along the San
Pedro River and the Upper Gila River. The water budget makes
assumptions about the present flow of the Gila and San Pedro rivers.
The State has proposed that present uses on those streams should be
allowed to continue and the Community has agreed. The settlement
proposes a ``safe harbor'' provision for these current uses that the
Community, SCIDD and the United States would not challenge. To limit
future uses, the State has agreed to propose changes in state law that
prohibit the construction of new dams and the development of new
irrigation uses within the San Pedro River and the Upper Gila River
basins. When enacted the State assumes an ongoing enforcement
responsibility. At this time we do not have an estimate of this future
financial commitment.
To summarize: The State contributions involve several changes in
state law to accomplish the goals of the settlement; obligate the State
to ongoing enforcement provisions, and necessitate large underground
water storage expenditures for firming of tribal water and for the
replenishment bank.
This settlement encompasses many good things for many entities
within Arizona. I have touched only on those of particular importance
as State policy considerations. However, I must comment on one more
provision. In Title II, and in Title III, the legislation outlines
procedures for the Gila River Indian Community and the Tohono O'odham
Nation to have lands placed into trust.
It is important to remember that 28 percent of Arizona's total land
base consists of various Indian Reservations, with much more land held
in trust for benefit of tribes or individual Indians, or in fee by
tribes. We are proud of our tribal governments and have improved our
ability to work with them on a government-to-government basis,
especially on health, education and gaming issues. However, there are
many consequences to state and local non-Indian authorities when lands
are added to reservations, or taken into trust. For many years the
State has taken the position that only Congress has the authority to
make new reservations or additions to existing reservations, pursuant
to congressional directives found in 25 U.S.C. 211. Some tribes and the
Secretary of the Interior disagree with our legal analysis. To
circumvent future litigation on this issue we, along with other Arizona
interests including the congressional delegation, have urged that the
settling tribes agree to a clarification of this issue concerning their
reservations.
Title II confirms that new additions to the reservation, or the
placing of lands into trust status for the benefit of the Community,
will only be accomplished by specific acts of Congress. Congress
enacted the Zuni Indian Tribe Water Settlement Act earlier this year
with similar provisions. We strongly support retention of this
provision in Title II, as well as in Title III.
In summary, the Gila River Indian Community Tribal Water Settlement
provides many benefits to all Arizonans, and the State has committed
itself to changes in state law and future use of resources to effect
the benefit of the settlement for the Community.
Title III: Amendments to the Southern Arizona Water Rights Settlement
Act of 1982
In 1982, Congress enacted the Southern Arizona Water Rights
Settlement Act (SAWRSA) to resolve the tribal claims against non-Indian
water users in the Upper Santa Cruz Basin by the Tohono O'odham Nation
(Nation), then known as the Papago Tribe, pending in the case U.S. v.
Tucson. The 1982 SAWRSA called for a water budget of 66,000 acre-feet
of delivered water, a 10,000 acre-feet limit on groundwater pumping by
the Nation, a $15 million development trust fund, and a cooperative
fund to pay for the delivery of surface water.
Portions of the settlement have been completed, including the
construction of a major portion of the distribution system to use the
Nation's original CAP allocation. The Nation, the State, and the local
entities have performed their required tasks under the 1982 Act. This
included state entities' financial contributions of $5.25 million,
Tucson's contribution of 28,200 acre-feet of effluent and tribal
waivers of claims to water rights.
However, issues about the distribution of the tribal benefits arose
before final dismissal of U.S. v. Tucson. At the same time, questions
were raised about the source of a portion of the tribal water budget,
and opposition formed to the building of a new farm on unbroken desert
lands. Title III of H.R. 885 would amend the 1982 Act to address these
issues, provide a better method for dismissal of the pending lawsuits,
and modernize the authorized uses of water by the Nation to be more
consistent with those allowed under state law. It also confirms the
settlement agreement among the Nation, the State of Arizona, Asarco, an
international mining company, and Farmers Investments Companies (FICO).
I recently signed the settlement agreement, as have all parties except
the Secretary of the Interior, who is awaiting congressional
authorization.
To begin the more recent negotiations with all parties to the
settlement, an agreement was reached between the Nation and the Indian
allottees, whose allotment lands are within the basin, about the use of
the settlement benefits. It is a tribute to the tribal parties that
they have worked out internal differences, and now are ready to finish
the settlement. The State acted as a party to the final settlement and
facilitated the negotiations.
Title III clarifies all the issues that delayed implementation.
First, it identifies the source of the additional settlement water. The
Nation has an original CAP allocation of 37,800 acre-feet, but SAWRSA
provided for an additional 28,200 acre-feet of unidentified settlement
water. Under Title I of H.R. 885, CAP agricultural water is made
available to the Secretary for Indian water settlements, and it is from
this pool of relinquished contracts that the Nation will receive its
full settlement budget. Title I directs that the Secretary will have
the responsibility to firm the 28,200 acre-feet of settlement water.
The State offered up to $3 million in appropriations or services to
assist the Secretary in that obligation. It should be noted that the
State had already appropriated a contribution to the Cooperative Fund,
as required under the 1982 Act, and this $3 million is an additional
contribution.
The settlement better defines the nature of the 10,000 acre-foot
limit on pumping rights. The 1982 congressional directive on the
limitation of pumping did not address whether this is a ``reserved''
pumping right or the equivalency of a state-based grandfathered pumping
right in an active management area. In return for clarifying that this
is not a reserved right the State has agreed to seek state law changes
to allow additional protection to the Nation's groundwater resource
from the effects of new wells around the reservation. Under this
legislative change, the State adds to its water management
responsibilities in the Tucson Active Management Area.
Each of the major parties, the City of Tucson, Asarco, and FICO,
have entered separate agreements with the Nation and the allottees to
further protect the groundwater resource of the reservation. This
includes a creative solution by Asarco to substitute tribal CAP water
for Asarco's industrial groundwater use through a storage arrangement.
Waivers and releases under the 1982 Act only provided for past and
present claims to water rights and injuries to water rights, while the
Title III amendments include future claims to water rights and injuries
to water rights with some defined exceptions to enable the parties to
enforce the settlement provisions.
In 1982, it was envisioned that the Bureau of Reclamation would
construct or rehabilitate three different farm units for the Nation.
Under Title III, a procedure is outlined to substitute a $18.3 million
development fund for one farm that would have been built on unspoiled
desert lands. The $18.3 million is a present value substitute for a
project already authorized as part of a settlement and committed to
construction. Of the remaining commitment, one farm is already
completed, and the last farm rehabilitation and expansion project has
begun, both using CAP funding.
A procedure for dismissing the pending lawsuits is agreed upon in
the settlement agreement, and confirmed by Title III. It provides for
class action consolidation and dismissal of Indian allottee claims
based on the receipt of settlement benefits. There are over 3,000
individual Indian allottees with land interests in the basin. The State
finds that this procedure gives greater certainty, binding not just the
present litigants but also their successors.
In summary, Title III provides better tools for dismissal of
pending lawsuits, a confirmed supply of settlement water for the
Nation, protection of tribal groundwater, creative uses of CAP water,
and legal certainty over issues not addressed in 1982, such as the
nature of the groundwater pumping right.
Title IV: San Carlos Apache Tribal Water Settlement
Unfortunately, at this time we do not have a San Carlos Apache
tribal water settlement. Congress approved a San Carlos Apache Tribe
water settlement of their claims to the Salt River watershed portion of
the reservation in 1992. Since that time, several discussions have been
about resolving the tribe's claims to the Gila River watershed portion
of the reservation. These issues are also being addressed in the
General Stream Adjudication of the Gila River and its source.
The State stands ready to assist in the negotiation of the San
Carlos Apache tribal claims to the Gila River when the Tribe and the
United States reach an understanding of the parameters of such a
settlement. It is possible that a settlement will be reached before
passage of H.R. 885. However, the State does not believe that the rest
of legislation should be delayed if Title IV cannot be completed.
Provisions have been made in Title II to maintain the rights of the
San Carlos Apache Tribe against the settling parties. The San Carlos
Apache Tribe expressed concerns to the State that the legislation and
the settlement agreement for the Gila River Indian Community hinder use
of their current water rights. They cite primarily the exchange
provisions in the Community's settlement, and the legislative changes
proposed by the State of New Mexico, both in Title II. Under the Globe
Equity decree of 1935 the Apaches were awarded a water right with an
1846 priority date to irrigate 1,000 acres along the Gila River. The
State fully supports maintaining the ability to use this right, and, in
fact, would support proposals to enhance the ability of the Apaches to
make use of the 1846 right.
The State is optimistic that the Apache claims to the Gila will be
resolved in the not too distant future, either by settlement or in
Adjudication Court, but urges the Committee to move forward on H.R.
885, with or without a new Apache settlement.
Summary and Conclusion
Before closing I would note that there are concerns that have been
raised by non-parties to the settlements. Most notably the Navajo
Nation, in its endeavor to quantify its water rights, has offered
comments. Their primary concern is that the Navajo Nation claims have
not been considered in this legislation. The State of Arizona is
currently negotiating with the Navajo Nation about its claims to the
mainstream Colorado River. It is our hope that a portion of the water
acquired pursuant to the relinquishments authorized in Title I will be
available for settling their claims.
Title I provides the final division of the Colorado River waters to
be delivered through the CAP, clarifies contractual relationships with
the United States, authorizes a shortage-sharing approach, and furthers
the intent of the stipulated settlement between Central Arizona Water
Conservation District and the United States on repayment of
construction costs of the CAP. Presently unallocated CAP water is
finally allocated or reallocated pursuant to public processes completed
many years ago. Finally, Title I provides a mechanism for
relinquishment of agricultural priority water to be used for Indian
water settlements, both present and future, along with a funding
mechanism for those settlements and for the delivery of CAP water to
Indian customers. The funding mechanisms proposed through the Lower
Colorado River Basin Fund may be unique, but they are worthy of
congressional approval. These benefits accrue primarily to Arizona
Indian tribes and their future economic development.
Title II confirms the water rights settlement of the Gila River
Indian Community, ending long-standing judicial and cultural conflicts
concerning millions of acre-feet of water. It provides the Community
with a clear final water budget and the resources to utilize that water
in return for complete waivers and releases of water rights claims and
injuries to water rights. Many of the settlement's features enhance the
ability to conserve groundwater in central Arizona, including the
leasing of tribal CAP supplies to non-Indian users in Arizona. Title II
resolves potential legal disputes over how non-tribal lands gain trust
or reservation status by confirming that it is properly Congress' role
to determine if and how reservations are changed. The State has
committed to pursue changes in state law and to expend millions of
dollars to assure the Community more reliable water supplies and to
preserve groundwater on and around the reservation.
Title III provides means to finalize a settlement long overdue for
the Tohono O'odham Nation and the people of southern Arizona. It
modernizes the 1982 settlement, providing water use flexibility,
especially of CAP water. In seeking additional protections of tribal
groundwater, the settlement complements existing state water management
goals. The effort in amending the settlement gave tribal, local, state,
and federal government representatives an opportunity to better
understand each other and to become partners instead of combatants.
We have worked long and hard to negotiate the three settlements
represented by the respective Titles, and the State of Arizona strongly
recommends that the Committee support H.R. 885, the Arizona Water
Settlements Act of 2003.
______
[GRAPHIC] [TIFF OMITTED] T9653.002
[Mr. Guenther's response to questions submitted for the
record follows:]
Response to questions submitted for the record by Herbert R. Guenther,
Director, Arizona Department of Water Resources
Congressman Hayworth's Question to the State of Arizona
It is my understanding that any party that holds a water right
under the Globe Equity 59 Decree (G.E. 59 Decree) may engage in a
transfer of that right which involves a change in the point of
diversion or manner or purpose of the use of such water. It is also my
understanding that the authorization for such transfers is contained in
Article XI of the Decree, which also requires that such transfers occur
``without injury'' to the rights of other parties that hold water
rights recognized by the Decree.
Can you confirm that all water exchanges and transfers that involve
G.E. 59 Decree water rights contemplated or authorized by the Arizona
Water Rights Settlements Act will be subject to approval by the Globe
Equity Court applying the standard contained in Article XI of the G.E.
59 Decree?
Answers
Concerning Congressman Hayworth's understanding of Article XI of
the Globe Equity 59 Decree and its application to transfers and
exchanges we offer the following comments:
In an order dated September 23, 1993, rules were adopted by the
Decree Court on sever and transfers or change of use of decreed rights,
but did not address short-term or long-term exchanges. However, the
Court has reviewed exchange proposals in the past couple of years due
to the on-going drought.
In April of 2003 the Court approved an exchange of Central Arizona
Project water for water retained in San Carlos reservoir. Here the San
Carlos Apache Tribe had CAP water delivered to the San Carlos Indian
Irrigation Project (SCIP) entities (San Carlos Irrigation and Drainage
District and Gila River Indian Community) in exchange for retention of
SCIP rights in the reservoir. The parties presented the Court with a
stipulation.
To meet emergency water needs the Town of Kearny executed an
exchange agreement with the Gila River Indian Community (GRIC) and the
San Carlos Irrigation and Drainage District (SCIDD) for 2001-2002.
Decree parties protested the exchange because it did not go through the
1993 rules. The Gi1a River Water Commissioner did not think the rule
applied to a short-term exchange. After a briefing and a hearing the
Judge decided on June 6, 2003, to allow the 2001-2002 exchange because
there was no harm to other users, but did not grant it as a long-term
exchange. After noting that the Kearny exchange was not a precedent,
the Judge urged all parties to come to the Court with stipulated
agreements for proposed exchanges. The Judge did not decide whether
exchanges were authorized or consistent with Article XI of the Decree
because that issue had not been briefed. However, in our opinion the
Judge has clearly indicated that exchanges involving parties to the
Decree such as GRIC and SCIDD should come before the Decree Court for
approval under a no harm to other rightholders standard.
Concerning the specific question about the Arizona Water
Settlements Act and its requirement of Globe Equity 59 Decree Court
approval of transfers and exchanges we offer the following comments:
We believe the legislation does (pursuant to agreement of the
parties) require the approval of the Globe Equity 59 Decree Court for
many provisions. Exchanges and transfers are specifically part of the
Arizona Water Settlements Act. Provisions of the Upper Valley
Defendants (UVD) Settlement Agreement, Exhibit 26.2 relates to
transfers; and the Phelps Dodge Agreement, Exhibit 10.1, relates to
exchanges. Both of those agreements contain specific provisions for
Globe Equity 59 Decree Court jurisdiction and approvals. See paragraphs
5.2, 11, 12.1, and 13.3 of the UVD Settlement Agreement, and paragraph
6.1 of the Phelps Dodge Agreement. Should an Asarco Agreement be
reached, it is anticipated that it would also contain provisions about
the Globe Equity 59 Decree Court, including any exchanges pursuant to
CAP leases.
Related but not currently contained in the legislation are the
amendments to be offered by the New Mexico congressional delegation.
Under the 1968 Central Arizona Project Act (43 U.S.C. 1521 et seq) a
New Mexico Unit of the CAP was authorized (Sec. 1524(f)). Gila River
exchanges were specifically authorized and subject to a standard of
``without injury or cost to the holders'' of Globe Equity Decree rights
to the Gila River. While approval of the exchange is not required under
the 1968 Act, the Decree Court would probably be the forum for
determination of any injury claims by rightholders. We believe the New
Mexico amendments may be drafted to require Globe Equity 59 Decree
Court approval of the proposed exchange agreement.
______
Mr. Calvert. At this point, the Chair would recognize our
friend from New Mexico, Mr. Lopez, to offer his testimony on
H.R. 885.
STATEMENT OF ESTEVAN R. LOPEZ, DIRECTOR,
NEW MEXICO INTERSTATE STREAM COMMISSION
Mr. Lopez. Good morning, Mr. Chairman and Subcommittee
members. My name is Estevan Lopez. I am the Director of the New
Mexico Interstate Stream Commission. I appreciate very much the
opportunity to appear before you today and provide comments on
behalf of the State of New Mexico regarding the Arizona Water
Settlement Act, H.R. 885. With your permission, I will submit
my written testimony for the record.
This legislation will resolve longstanding water issues
among Indian tribes and water users in New Mexico and Arizona.
It is of great importance to the State of Arizona and will
bring numerous benefits to water users in communities in the
Gila River Basin. I want to commend you, Representative
Hayworth, and Senator Kyl and other members of the Arizona
delegation for such comprehensive and important legislation.
In addition to the benefits to Indian tribes and water
users in Arizona, this bill could benefit Western New Mexico,
which shares the Gila River with Arizona. Both Title I of the
bill, the Central Arizona Project Settlement Act, and Title II,
the Gila River Indian Community Water Rights Settlement Act,
bear directly on use of water within the Gila River Basin in
New Mexico.
During the last year, we have worked with representatives
of the State of Arizona, Indian tribes, and water users to
craft language that will address New Mexico's needs. We have
made substantial progress, and if New Mexico's interests can be
protected, we will be able to stand fully behind the bill.
New Mexico has two discrete areas of interest. First, in
the Upper Valley Defendant, or UVD, agreement, approved in
Title II of the bill, we want to ensure that New Mexico farmers
in the Virden Valley are fairly treated. Second, the
authorization for the New Mexico unit under Section 304 of the
1968 Act authorizing the Central Arizona Project must be fully
protected in advance. I will discuss these two matters in turn.
Last year, my office and the New Mexico Office of the State
Engineer participated in negotiating provisions of the UVD
Agreement. The core agreement calls for the UVDs to reduce
current irrigation by 3,000 acres in exchange for the ability
to pump groundwater up to six acre feet per acre, regardless of
priority. The result in New Mexico is that water rights
associated with up to 240 acres, or approximately 8 percent of
the current irrigated acres in the Virden Valley, would be
extinguished. The State of New Mexico believes the UVD
settlement in H.R. 885 is a fair and reasonable compromise that
will protect all parties and provide a more secure and
dependable water supply. We support implementing the UVD
settlement.
Our second concern is to carry out the authorization for
the New Mexico unit of the Central Arizona Project, or CAP, as
provided in the 1968 Act. The 1964 U.S. Supreme Court decree in
Arizona v. California limited the State of New Mexico to
present and past uses of water with no water for future uses.
The 1968 Act authorized an apportionment to New Mexico as part
of the cap. The intent of the 1968 Act is to provide for future
uses of water in New Mexico from the Gila River Basin above
those specified in Arizona v. California. The 1968 Act directs
the Secretary of Interior to provide New Mexico with additional
water through an exchange by which the Secretary would contract
with water users in New Mexico for water from the Gila River
Basin in amounts that will permit consumptive use of water not
to exceed an annual average of 18,000 acre feet, including
reservoir evaporation, over and above the consumptive uses
provided in Article IV of the decree of Arizona v. California.
To complete the exchange, the 1968 Act also directs the
Secretary to deliver CAP water to users in Arizona in
sufficient quantities to replace in full any diminution of
their Gila River water supplies that results from the
additional consumptive use of Gila River water in New Mexico.
Amendments to H.R. 885 are required to ensure New Mexico's
ability to construct the New Mexico unit and develop the 18,000
acre feet. Over the last 9 months, we have been working with
the State of Arizona, the Bureau of Reclamation, the Bureau of
Indian Affairs, the Gila River Indian Community, the San Carlos
Irrigation and Drainage District, and the Central Arizona Water
Conservation District to develop necessary amendments and
related settlement documents to facilitate construction and
operation of the New Mexico unit of the CAP. Attached to my
written testimony is a summary of progress and remaining issues
relating to the Arizona Water Settlement Act and the New Mexico
unit of the Central Arizona Project, as jointly prepared by New
Mexico and Arizona on September 23 of 2003. That summary
outlines the issues and tasks that have been or remain to be
resolved, in part or whole, between Arizona and New Mexico in
relation to the 18,000 acre foot exchange.
Mr. Chairman, we are working tirelessly to finish our
negotiations with the State of Arizona, Indian tribes, and
other water users. Once those discussions are complete and
resolutions of these issues can be incorporated into the
legislation, we look forward to providing New Mexico's strong
support for enactment of this bill by Congress.
Thank you again for the opportunity to present our views on
this matter.
Mr. Hayworth. And, Mr. Lopez, we thank you.
[The prepared statement of Mr. Lopez follows:]
Statement of Estevan R. Lopez, Director,
New Mexico Interstate Stream Commission
Mr. Chairman and Subcommittee members, I am Estevan Lopez, Director
of the New Mexico Interstate Stream Commission. I appreciate very much
the opportunity to appear before you today and provide comments on
behalf of the State of New Mexico regarding the Arizona Water
Settlements Act, H.R. 885. This legislation will resolve long-standing
water issues among Indian Tribes and water users in New Mexico and
Arizona. It is of great importance to the State of Arizona and will
bring numerous benefits to water users and communities in the Gila
River Basin.
In addition to the benefits to Indian Tribes and water users in
Arizona, this bill could benefit western New Mexico, which shares the
Gila River with Arizona. Both Title I of the bill, the Central Arizona
Project Settlement Act, and Title II, the Gila River Indian Community
Water Rights Settlement Act, bear directly on use of water within the
Gila River Basin in New Mexico.
During the last year, we have worked with representatives of the
State of Arizona, Indian Tribes, and water users to craft language that
will address New Mexico's needs. We have made substantial progress, and
if New Mexico's interests can be protected we will be able to stand
fully behind the bill.
At this time, I would like to give you a brief summary of New
Mexico's interests in the legislation and the progress the two states
and other parties have made in addressing our concerns in the
settlement documents and legislation. New Mexico has two discrete areas
of interest. First, in the Upper Valley Defendant (``UVD'') Agreement
approved in Title II of the bill, we want to ensure that New Mexico
farmers in the Virden Valley are treated fairly. Second, the
authorization for a New Mexico unit under Section 304 of the 1968 Act
authorizing the Central Arizona Project (43 U.S.C. 1543, Public Law 90-
537) (the ``1968 Act'') must be fully protected and advanced. I will
discuss these two matters in turn.
Last year, my office and the New Mexico Office of the State
Engineer participated in negotiating provisions of the UVD Agreement.
The core agreement calls upon the UVDs to reduce current irrigation by
3,000 acres in exchange for the ability to pump groundwater up to 6
acre-feet per acre regardless of priority. The result in New Mexico is
that water rights associated with up to 240 acres, or approximately 8
percent of the currently irrigated acres in the Virden Valley, would be
extinguished.
The State of New Mexico believes the UVD settlement in H.R. 885 is
a fair and reasonable compromise that will protect all parties and
provide a more secure and dependable water supply. We support
implementing the UVD settlement.
Our second concern is to carry out the authorization for the New
Mexico unit of the Central Arizona Project (``CAP'') as provided in the
1968 Act.
In the U.S. Supreme Court litigation Arizona v California, 376 U.S.
340 (1964), the State of New Mexico presented evidence of present and
past uses of water from its tributaries in the Lower Colorado River
Basin including the Gila River and its tributaries. In addition, New
Mexico presented a water supply study showing how the state could apply
and use the water it claimed as its equitable share of the Gila River.
The report of the Special Master found that New Mexico should be
allowed present uses as an equitable apportionment of the waters of the
Gila River Basin, but did not make an apportionment of water to New
Mexico for future uses from the Gila. The 1968 Act authorized an
apportionment to New Mexico as part of the CAP. The intent of the 1968
Act is to provide for future uses of water in New Mexico from the Gila
River Basin above those specified in Arizona v California.
The 1968 Act directs the Secretary of the Interior to provide New
Mexico its additional water through an exchange by which the Secretary
would contract with water users in New Mexico for water from the Gila
River Basin in amounts that will permit consumptive use of water not to
exceed an annual average of 18,000 acre-feet, including reservoir
evaporation, over and above the consumptive uses provided for by
Article IV of the decree in Arizona v California.
To complete the exchange, the 1968 Act also directs the Secretary
to deliver CAP water to users in Arizona in sufficient quantities to
replace in full any diminution of their Gila River water supply that
results from the additional consumptive use of Gila River water in New
Mexico.
Amendments to H.R. 885 are required to ensure New Mexico's ability
to construct the New Mexico unit and develop the 18,000 acre-feet. Over
the last nine months, we have been working with the State of Arizona,
the Bureau of Reclamation, the Bureau of Indian Affairs, the Gila River
Indian Community, the San Carlos Irrigation and Drainage District, and
the Central Arizona Water Conservation District to develop necessary
amendments and related settlement documents to facilitate construction
and operation of the New Mexico unit of the CAP.
I will briefly note the issues under discussion and the progress
being made. The issues are more fully described in the attached
``Summary of Progress and Remaining Issues Relating to the Arizona
Water Settlements Act and the New Mexico Unit of the Central Arizona
Project,'' as jointly prepared by New Mexico and Arizona on September
23, 2003. The following issues and tasks have been or remain to be
resolved, in part or whole, between Arizona and New Mexico in relation
to the 18,000 acre-feet exchange:
1. New Mexico's initial concern was that the Arizona Water
Settlements Act would prohibit the exchange of CAP water for New
Mexico's additional diversion of Gila River water. This issue is
resolved;
2. Progress is being made towards agreement on terms and
conditions that will be incorporated into the exchange agreement
between New Mexico, the Gila River Indian Community, and the Secretary
of the Interior to effect the exchange provided in the 1968 Act;
3. All parties are working to develop acceptable operational
parameters that will allow New Mexico to divert water without causing
economic injury or harm to holders of senior downstream water rights.
General concepts have been proposed and technical review is scheduled.
We are working hard to resolve this difficult and complex issue;
4. Globe Equity constraints may serve to contravene the intent of
the 1968 Act to provide additional consumptive uses in New Mexico. Work
is ongoing related to the following Globe Equity issues:
a. To keep UVD users whole, accounting of storage in San
Carlos Reservoir must include any water diverted by the New
Mexico unit; and.
b. The ability of New Mexico to exchange without regard to
the 1924 federal storage priority in San Carlos Reservoir, as
was assumed in Reclamation's 1982 and 1987 studies, must be
confirmed;
5. As originally contemplated in the 1968 Act, funding for the New
Mexico unit is authorized as part of the CAP. While the original New
Mexico project cost estimate was approximately seventy million dollars,
that estimate inflated according to the Consumer Price Index results in
a cost total of over three hundred million in today's dollars. However,
we believe we can build a suitable project for approximately two
hundred twenty million dollars, including increased costs to
accommodate federal environmental mandates.
In the settlement, New Mexico has proposed and Arizona is
considering one hundred fifty million dollars in funding for the New
Mexico unit that would be integrated with the funding provided for
other projects under the Arizona Water Settlements Act. Discussions are
ongoing regarding what costs would be supported. Under this proposal,
New Mexico would have to make provision for at least seventy million
dollars in construction costs plus substantial annual costs; and
6. Several entities are seeking to exchange Gila River water for
CAP water, a situation that could result in shortages of available Gila
River water in some years. New Mexico has the senior exchange priority
emanating from the 1968 Act. However, in the spirit of compromise, New
Mexico has offered to share priorities up to a set amount of aggregate
exchanges. Discussions and studies are under way to determine the
amount of exchanges with which New Mexico would share priority.
Mr. Chairman, we are working tirelessly to finish our negotiations
with the State of Arizona, Indian Tribes and other water users. Once
those discussions are complete and resolution of these issues can be
incorporated into this legislation, we look forward to providing New
Mexico's strong support for enactment of this bill by Congress. Thank
you again for the opportunity to present our views on this matter.
______
Attachment to Statement of Estevan R. Lopez
new mexico and arizona department of water resources summary of
progress and remaining issues relating to the arizona water rights
settlement act and the new mexico unit of the central arizona project,
september 23, 2003
The following issues and tasks have or remain to be resolved, in
part or whole, between Arizona and New Mexico in relation to the Gila
18,000 acre-feet exchange:
1. Effect of the Arizona Water Rights Settlement Act on the
provision in the 1968 Colorado River Basin Project Act that provides
for exchange of 18,000 acre-feet of Central Arizona Project water for a
like amount of Gila River water consumptively used in NM. The concern
was that the Arizona Water Rights Settlement Act could directly or
indirectly impair New Mexico's ability to realize the benefits of the
1968 Act. Resolved in current proposed amendments.
2. Exchange agreements between New Mexico, Gila River Indian
Community, and Secretary of the Interior to effect the 1968 exchange.
Progress is being made to agree on terms and conditions to be
incorporated in the exchange agreement.
3. Operational parameters for the New Mexico Unit. All parties, New
Mexico, Arizona, Gila River Indian Community, and Reclamation, are
working to develop operational parameters that will define how and when
the New Mexico project diversion may occur without creating economic
injury and harm to downstream senior Gila water users, including
effects on groundwater users. General concepts have been proposed and
technical review is scheduled. Resolution is hoped.
4. Globe Equity issues. Work is ongoing related to these issues:
a. Under the Globe Equity, water users above San Carlos
Reservoir are permitted to divert Gila River water out of
priority in an amount equal to water stored in San Carlos
Reservoir. A New Mexico project would reduce the amount of out
of priority diversion permitted. To keep Arizona water users
whole, an adjustment is required to Globe equity accounting of
San Carlos storage to include any water diverted by the New
Mexico feature; and
b. In the Globe Equity, San Carlos has a 1924 storage
priority. This was assumed not to pose an obstacle in
Reclamation's 1982 or 1987 studies of potential New Mexico
projects. Changes are needed to clarify the ability of New
Mexico to exchange as intended in the 1968 Act.
5. Funding. New Mexico has estimated current project costs could
exceed $220M. New Mexico has proposed and Arizona is considering that
funding for the New Mexico unit be integrated with the funding provided
for other projects under the Arizona Water Rights Settlement Act.
Discussions are ongoing regarding what costs would be supported under
this provision.
6. Exchange priority. The desires of various Arizona entities to
enter into exchange agreements of Gila River water for Central Arizona
Project water presents problems when water supplies are low. In one out
of two years, there will not be enough Gila River water to supply all
contemplated exchanges. New Mexico has the senior 1968 exchange
priority in the 1968 Colorado River Basin Project Act but has offered
to share priorities up to a set amount of exchanges. Discussions and
studies are under way to determine the amount of exchanges with which
New Mexico would share priority.
______
Mr. Hayworth. Of course, transcending the border of the
States of Arizona and New Mexico, the presence of the Sovereign
Navajo Nation. Before I recognize the witness here to testify
on behalf of President Joe Shirley, let me apologize to those
assembled. A scheduling dilemma has me having to leave the
dais, but the very capable Vice Chairman of the Committee, my
colleague from Arizona, will be taking the chair. But it is my
privilege to recognize Stanley Pollack, Legal Counsel who is
here representing Navajo Nation President Joe Shirley, with his
testimony. Mr. Pollack, your testimony, please, sir.
STATEMENT OF STANLEY POLLACK, NAVAJO NATION
Mr. Pollack. Thank you very much, Congressman Hayworth, and
thank you very much for affording the opportunity to the Navajo
Nation to testify on this important piece of legislation and
affording me the opportunity to sit in for President Shirley,
who sends his regrets. My name is Stanley Pollack. I am the
water rights counsel for the Navajo Nation from the Navajo
Nation's Department of Justice.
Again, we want to thank the Committee for addressing this
important issue for the State of Arizona and Indian tribes in
the State of Arizona. The Navajo Nation certainly appreciates
the importance of water. We understand this importance,
particularly since almost half of the homes on the Navajo
reservation lack a reliable supply of domestic water. Almost
half the homes on the Navajo reservation have to haul water
from distant sources in order to have a basic supply of potable
water. Thus, the Navajo people do not take water for granted
and we support the efforts of the Gila River Indian Community
to settle their water rights claims.
Despite this support, however, there are various aspects of
H.R. 885 that are troubling to the Navajo Nation and our
concerns are summarized and set forth in our written testimony.
Very briefly, we discuss in the written testimony about how a
huge amount of Central Arizona Project water will go toward the
settlement for the Gila River Indian Community. The Navajo
Nation does not begrudge the fact that the Gila River Indian
Community is entitled to a very large quantity of water and we
do not hold that against the Community.
Our concern, however, is that the Secretary of Interior, by
utilizing the vast resources of Colorado River water to settle
Central Arizona water rights matters for tribes in Central
Arizona may be without the resources necessary to settle the
Navajo claims on the Colorado River directly. So we want the
Department to be mindful of the potential conflict that may
arise when it is time to settle the Navajo claim.
Second of all, there is a piece of water in the settlement
with the Gila River Indian Community that relies on water from
Blue Ridge Reservoir, and again in our testimony we outline now
the Navajo Nation considers water from Blue Ridge Reservoir,
which is in the Little Colorado Basin where the Navajo Nation
is located, to be claimed by the Navajo Nation. Again, this is
an issue--we don't begrudge the Gila River Indian Community for
seeking in their water budget and we are confident that we will
be able to sit down with the Community and work out our
concern.
But the most critical issue that we have with the
particular legislation is Section 104(b). In that particular
provision, the Secretary's hands are tied by requiring that
water rights settlements--I am sorry, that the reallocation of
CAP water to an Indian tribe in Arizona can only occur through
a Congressionally approved water rights settlement. This is a
problem for the Navajo Nation, because we need Central Arizona
Project water today.
The community of Window Rock, Arizona, where I live, where
I work, needs a supplemental water supply of drinking water.
Although the community is located in Arizona, the best source
of providing potable water to Window Rock comes from the San
Juan River in New Mexico.
The Navajo Nation is actually very close to a settlement
with the State of New Mexico concerning its water rights claims
to the San Juan River. The centerpiece of that particular
settlement would be the construction of the Navajo-Gallup
Project, which would bring water to Gallup, New Mexico, and to
Navajo communities in Western New Mexico. But Window Rock is on
the border of New Mexico and Arizona and the best way to get
Window Rock water is through the Navajo-Gallup Project.
The Navajo Nation needs approximately 6,400 acre feet of
water for that Arizona piece of the project. We need an Arizona
allocation. We have sought a Central Arizona Project allocation
of 6,400 acre feet. We hope to introduce settlement legislation
as early as January of next year that would authorize this
particular settlement and this particular project, the Navajo-
Gallup Project.
We can't afford to wait to settle all of the claims we have
with the State of Arizona, which includes the claims in the
Little Colorado River and the Colorado River mainstem, in order
to have a final settlement that could get us CAP reallocation
under Section 104(b). Thus, Section 104(b) of H.R. 885 makes it
impossible for the Secretary to allocate much-needed drinking
water for the community of Window Rock.
We can't afford the wait, again, for the settlement of our
Arizona claims, so we need that water now. We are presently
engaged in discussions with the State of Arizona, with the
Department of Interior, and with the Gila River Indian
Community to try to resolve these claims. We are confident that
at the end of the day, we will all be there and we will be in
support of this particular piece of legislation.
Thank you for the opportunity to testify.
Mr. Renzi. [Presiding.] I thank the gentleman.
[The prepared statement of Mr. Shirley follows:]
Statement of Joe Shirley, Jr., President, Navajo Nation, on H.R. 885
Chairman Calvert and Members of the Subcommittee:
I am President Joe Shirley of the Navajo Nation. Thank you for the
opportunity to provide testimony before the Committee regarding the
Navajo Nation's views on the proposed settlement for the Gila River
Indian Community to be implemented by H.R. 885 entitled the ``Arizona
Water Settlements Act.'' The proposed settlement will have a tremendous
impact on the ability of the United States to supply the Navajo Nation
with the water supplies needed to transform the Navajo Reservation into
the permanent homeland envisioned when the Reservation was established.
I ask the Committee to consider those impacts before recommending the
approval of the proposed settlement. Working together, we are confident
that the Gila River settlement can be crafted in a way that will not
adversely affect the ability of the Navajo Nation to obtain the water
supplies so desperately needed on the Navajo Reservation.
Let me begin by saying that the Navajo Nation greatly appreciates
the tremendous effort that the Arizona Congressional Delegation has
devoted to addressing the difficult water issues that confront the
State of Arizona. Nothing is more important to the long-term welfare of
the State than developing a reliable supply of water to meet the needs
of all of the State's citizens, Indian and non-Indian alike. That
cannot be done while the water rights of the Indian tribes in the State
remain uncertain and cloud the rights of other water users without
providing the tribes with the water that they so desperately need. We
know that Congress is working hard to find fair and equitable solutions
to these difficult problems, and the Navajo Nation wishes to work with
you to find a way to address these issues in a way that also meets the
long-term needs of the Navajo Nation.
The Navajo Nation is not a party to the proposed Gila River
agreement nor were we invited to participate in the settlement
discussions. Having reviewed H.R. 885 and the settlement that it would
implement, however, it is apparent that there are at least two aspects
of the proposed settlement for the Gila River Indian Community that
involve water resources that are critical to the Navajo Nation. Both of
these issues are matters of utmost importance to the Navajo Nation. In
addition, the legislation represents an enormous federal investment in
providing water supplies to the State of Arizona. We want to be certain
that the present legislation does not preclude devoting further
resources towards solving the difficult water supply issues facing the
Navajo Nation and its neighbors in rural Arizona and New Mexico.
First, Section 104 of H.R. 885 reallocates 197,500 acre-feet per
year of agricultural water priority water from the Central Arizona
Project (``CAP'') for use by Arizona Indian tribes. The bill proposes
to transfer to the Gila River Indian Community 102,000 acre-feet of
that supply. In addition, Section 104 prohibits the reallocation of any
of the supply to an Indian tribe in absence of an Indian water rights
settlement that calls for such a reallocation. Moreover, the water in
question is ``agricultural priority'' water which has an extremely
limited reliability. Under the provisions Section 105 of the bill, only
17,448 acre-feet of that supply is firmed up so that it can be used for
municipal and industrial purposes by the other tribes in Arizona for
municipal and industrial purposes. In contrast, Section 104 (b)
reallocates 65,647 acre-feet of the far more valuable municipal and
industrial priority water to non-Indian towns and cities in Arizona.
The Navajo Nation is deeply concerned about these provisions. While
we have worked hard over the last two decades to resolve the Nation's
claims to water throughout Arizona and New Mexico, we have outstanding
needs for water that cannot be put aside during the years that will be
required to achieve an overall settlement of the Nation's claims in
those states. We do not believe that water required to meet the
everyday needs of tribal members should be held hostage until those
settlements are completed. Nor do we believe that the water provided
under the provisions of Sections 104 and 105 is adequate to meet the
needs--or the outstanding claims--of the Navajo Nation.
For example, it is clear that water from the mainstream of the
Colorado River in the Lower Basin is essential to meeting the long-term
needs of the Navajo Nation on its Reservation, yet the extent of the
Nation's mainstream rights has never been seriously addressed, let
alone determined. The residents of western portion of the Navajo
Reservation lack reliable water supplies and commonly are forced to
haul water to meet their everyday needs. As a result of these critical
and immediate needs, the Navajo Nation recently brought suit against
the Secretary of the Interior to redress the United States' failure to
obtain and protect a water supply for the benefit of the Nation from
the Lower Basin of the Colorado River. While we recognize that this
litigation poses a threat to various Colorado River programs that are
critical to all of the basin states, the continued neglect of Navajo
interests left us no choice but to proceed with our claims in court.
The Arizona portion of the Navajo-Gallup Project is another example
of the efforts underway to address the immediate drinking water needs
of the Navajo Nation's members. That project would be the centerpiece
of a settlement of the Navajo Nation's water rights claims to the San
Juan River rights in New Mexico. The Navajo Nation and the State of New
Mexico are close to a final settlement agreement and hope to introduce
settlement legislation as early as next year. However, the most
troublesome issue is identifying a supply of water for the Navajo-
Gallup Project to serve the water-short community of Window Rock in
Arizona. A CAP allocation may be necessary for use in Arizona through
the Navajo-Gallup Project, but H.R. 885 would prohibit the Secretary
from allocating that water supply in the absence of a water rights
settlement in Arizona. The Navajo communities to be served by the
project have an immediate need for additional drinking water and cannot
wait for the resolution of the Navajo claims in Arizona.
Ultimately, the nature and extent of the Nation's water rights in
Arizona must be resolved if there is to be any certainty with regard to
the CAP water supply and for the Indian communities that rely on this
supply. If, in fact, the Gila River settlement eliminates or
substantially reduces the availability of CAP water for other tribal
water rights settlements in Arizona, the United States and the State,
in all likelihood, will not have sufficient Colorado River resources to
facilitate a Navajo mainstream settlement without taking water away
from existing users. In short, we ask that you do not fully obligate
CAP allocations in accordance with the terms of this bill, given the
Navajo Nation's outstanding needs. The failure to recognize those needs
and to obtain and protect a water supply sufficient to meet those needs
will only lead to further controversy and disruption in the future.
Second, Section 12.14 of the proposed settlement describes a water
budget for the Gila River Indian Community that includes a supply of
water from Blue Ridge Reservoir, which is located on Clear Creek, a
tributary of the Little Colorado River. The need for water from Blue
Ridge to provide drinking water for water-short communities in the
southern portion of the Navajo Reservation through the Three Canyon
Project is now being studied by the Bureau of Reclamation in an ongoing
study which Senator Kyl has sponsored. The Navajo Nation has always
viewed Blue Ridge Reservoir as the cornerstone of any settlement of the
Navajo rights in the Little Colorado River Basin because it is the only
practical way to provide renewable surface water supplies to meet the
domestic water needs of reservation communities in the vicinity of
Leupp. As a result, the suggestion that Blue Ridge Reservoir provide a
water supply for the Gila River settlement jeopardizes the contemplated
Little Colorado River settlement to the detriment of everyone in the
Basin. It is also important to point out that the water supply for Blue
Ridge Reservoir is subject to the claims of the Navajo Nation in the
Little Colorado River Adjudication, even if a portion of that water
were to be provided to the Gila River Indian Community. In the absence
of a settlement of the Navajo claims on the Little Colorado River, the
Navajo Nation will have no alternative other than to pursue its claims
to such water in the ongoing adjudication.
Third, this is a very substantial settlement. It provides the Gila
River Indian Community with a water budget of 653,500 acre-feet of
water and a hefty amount federal funds. Moreover, it permits the
leasing of subsidized settlement water supplies from the community to
non-Indian water users in central Arizona with no reimbursement to the
United States for the capital costs of CAP. Far more troubling,
however, are the benefits extended to non-Indian water users by the
settlement. For example, Section 106(b) in conjunction with Section 107
appears to render non-reimbursable $73,561,337 of debt incurred by CAP
agricultural water users in Arizona under Section 9(d) of the Act of
August 4, 1939. We fail to see the justification for such waivers.
Moreover, we understand that other non-Indian water users are waiting
in the wings to take advantage of the unique and expensive funding
mechanisms provided by the legislation. Whatever the merits of the
funding mechanisms in the bill, the benefits of those procedures should
be reserved for Indian water right settlements or the provision of
much-needed water supplies to tribal communities.
In closing, the Navajo Nation understands the significance of
proposed Gila River settlement for the Gila River Indian Community and
the State of Arizona. Unfortunately, the settlement as currently
proposed jeopardizes the ability to resolve the critical issues facing
Arizona, the United States and the Navajo Nation. The Navajo Nation
wants to work with Congress, the Arizona Delegation, the State of
Arizona and the other parties to the proposed Gila River settlement to
address these concerns so that the proposed settlement may move forward
promptly. Thank you for the opportunity to testify on this matter of
great importance to the Navajo Nation.
______
Mr. Renzi. Before we move to members' 5-minute questions, I
want to recognize a gentleman here today, a great young leader
of the Yavapai Apache, Mr. Jamie Fullmer. If you could stand,
please, and be recognized, I appreciate you being here and
coming today. I am grateful. Your written testimony and
concerns have been written for the record.
Mr. Renzi. We are going to move now to the gentlelady from
California.
Mrs. Napolitano. I wish I had all day. I have got a ton of
questions for a lot of people.
Essentially, Governor Narcia, one of the things that I have
noticed in your report, that you say--on page 11, actually, of
the bill--your testimony, rather--that this bill is partial
compensation, on page 11, for water taken from the Community.
Do you anticipate a need for future compensation legislation?
Mr. Narcia. Mr. Chair, Congresswoman Napolitano, I will
defer to our chief negotiator, Mr. Rod Lewis, to answer that
question.
Mrs. Napolitano. Thank you.
Mr. Lewis. Mr. Chair and Congressman Napolitano, the Gila
River Indian Community is located in Central Arizona just
immediately south of Phoenix. The Gila River flows directly
through the reservation and the Salt River is immediately
adjacent to the reservation.
We have great claims to waters of both the Gila River and
the Salt River. Unfortunately for the Gila River Indian
Community, both those rivers have been diverted above us. We
are downstream from most people here at the table and people
upstream divert our water, we think illegally and in violation
not only of the Gila Decree, but of our winter's rights claims
that we have to both the Salt River and the Gila River.
So that is the basis for the statement that we have been
deprived and have lost water, because throughout the years,
since settlers came West and settled upstream from us. However,
this legislation will correct that situation by providing us
wet water and in return providing certainty and stability for
the entire State of Arizona with respect to a water supply.
Mrs. Napolitano. So the answer is yes?
Mr. Lewis. Yes.
Mrs. Napolitano. Thank you. Governor Narcia, then under
this bill, H.R. 885, how much water will be used on your
reservation and how much do you anticipate might be sold to
non-Indian customers?
Mr. Narcia. The Community has federally approved plans to
use all the water provided there by the Settlement Act. Certain
water leases are included in the settlement framework. Other
than the settlement leases, the Community plans on putting all
of our water to use. We are farmers. We have always been
farmers. We will continue to be farmers. We don't plan to sell
any of our water. We want to use it all.
Mrs. Napolitano. Or lease it out. OK. Thank you.
To Chairman Seyler, Mr. Hickok of BPA expressed a
willingness to reconvene discussions with the Spokane Tribe. Do
you think the discussions would be fruitful, and do you share
his interest in meeting with intent to reach agreement between
both?
Mr. Seyler. We have been trying to reach an agreement for
60 years. We are still willing to negotiate.
Mrs. Napolitano. OK.
Mr. Seyler. We would hope that BPA understands the term of
negotiation and that it moves away from a ``take it or leave
it'' offer.
Mrs. Napolitano. Thank you. Mr. Lopez, if New Mexico
develops more water as you describe in your testimony, how will
that affect the San Carlos Apache Tribe downstream?
Mr. Lopez. Representative, it is our intent, as part of the
continuing negotiation on amendments that we feel are still
needed, to make sure that we can reach agreement on describing
under what parameters New Mexico would be authorized to divert
water from the river in such a way that would assure that
downstream users would not be harmed or economically injured.
Mrs. Napolitano. Mr. Chair, I will forego right now, but I
want to make just one statement, that I think that all of the
tribes that have been at the table may not have been getting a
fair shake. If I have listened to the testimony from Kathy
Kitcheyan in regard to the smallness of their ability to have
friends in Congress--you have friends in Congress, ma'am. I
would like to pass on, and my next round of questions is going
to deal with many of the other issues I have in mind. Thank
you.
Mr. Renzi. I thank the gentlelady.
I am going to move to the gentleman from Southern Arizona.
Mr. Grijalva. Thank you, Mr. Chairman. I have just some
comments and questions, and one question in particular that
comes to mind, and maybe that is a question for the Governor or
Chairwoman Saunders, either/or, or both. Can you explain to me
how the communities will be protected from environmental risk
if Congress enacts the waiver that is included in this piece of
legislation?
Mr. Narcia. Congressman Grijalva, like other Indian water
settlements, H.R. 885 specifies that the United States will
bring certain types of claims either to acquire additional
water rights or to constrain the activities of those parties
that are incorporated in the settlement framework.
With respect to this particular agreement, the Community
has agreed that the United States should be bound to the
settlement framework in this manner. However, we also believe
that the United States is only binding itself in its capacity
as trustees for the Community and its members. In other words,
in a situation where a claim could be made based on
environmental or other laws for a non-Indian citizen or entity,
the United States is still free to assert that claim on behalf
of a member of the Community. The United States is only being
asked to waive its ability to bring those unique claims that
could be brought on behalf of an Indian tribe, an Indian
citizen, an allottee, or any other Indian tribal member, but
not on behalf of a similarly situated non-Indian.
Mr. Grijalva. Thank you.
Ms. Juan-Saunders. Congressman Grijalva, the Tohono O'odham
Nation didn't waive water quality claims and we feel that that
is a critical issue for our nation, and it is important not
just for us but the other water users in Southern Arizona. I
just want to conclude by saying that this was a very important
piece of negotiations for all parties. Coming to the table
wasn't easy for all parties, but we reached compromise and we
are here today and this is a very significant event for the
Nation and we ask for support. Thank you.
Mr. Grijalva. Thank you. Mr. Chairman, just an observation
and a comment in following up on the Chairwoman's last
statement. The process of good faith compromising and good
faith negotiations is a difficult process for anyone involved
in it, but I really feel that there are unresolved issues,
issues that seem to be moving forward with regard to New Mexico
and Arizona. I look forward to that. Issues that need to be
dealt with with that Navajo Nation, and my fond hope that
issues relative to San Carlos and the Apache Nation are also
dealt with in that process of good faith negotiating.
As the Chairwoman said, it is difficult, and I know it was
difficult for all parties and particularly for the nations to
come to the table on this discussion, but I want to extend my
appreciation and admiration, because the process is a difficult
one, to bring it to this point. If the history of this process,
being that it is done in good faith and among equals,
continues, I will certainly continue to support the
legislation. Thank you.
Mr. Renzi. I thank the gentleman.
I take my privilege and ask a few questions and then we
will go for a second round if that is OK. Well, let us go to
Mrs. Napolitano, with a great Italian name.
Mrs. Napolitano. Thank you. I just wanted to say to Mr.
Guenther to give my regards to the Governor, whom I have never
had the pleasure of meeting.
[Laughter.]
Mrs. Napolitano. There was an article on myself when I
first got elected to Congress with her picture and we have
laughed about that, which I found rather interesting.
I hear a lot of--thank you, sir. I hear a lot of concern
about how this government has not really come to the table with
all the parties equitably or in an expedient manner or in a
fair manner, and that bothers me, because for many years--since
I have been in government, since I have been in public office,
I have found that sometimes only the squeaky wheel gets the
oil--that is to say, those that can afford to be represented or
have information about how to come to the table and what to say
and what to do sometimes get supported and get the ability to
get some of their legislation through or assistance in matters
that are important to the people we represent.
I am very concerned about what I hear with Ms. Kitcheyan
with the issues involved with the San Carlos Apaches and also
with the Navajos. To say that you do not--that you have to cart
in water to half your people is unconscionable for us in this
day and age.
I would like to ask Ms. Kitcheyan, there is apparently
pooled water behind the dam. Will this be destroyed by the
agreement, and are there sacred cemeteries that will be
destroyed?
Ms. Kitcheyan. Madam, I will answer your second question
and I will defer to an attorney on the first question. There
are graves underneath Coolidge Dam of our ancestors, and if it
dries up, I fear that those spirits will come out.
And on your first question, I am going to defer to our
attorney.
Mrs. Napolitano. Would you identify your name for the
record, please, sir?
Mr. Sparks. Mr. Chairman, Congressman Napolitano, my name
is Joe Sparks. I am Special Counsel to the San Carlos Apache
Tribe.
As to the pool behind the San Carlos Dam, that pool of
water was purchased as a CAP water exchange by San Carlos, for
which it paid $66 an acre foot. The diversions of water
upstream, both in violation of the decree and new diversions
that would be authorized by this Act, will diminish the flow of
the Gila River to the lake and make it less likely that the
natural flow will go through the lake, less likely that it will
be replenished, and less likely that San Carlos Apache will be
able to implement its existing 1992 settlement by exchange of
water in San Carlos Lake. So all of those things are
exacerbated by the anticipation of this legislation.
Mrs. Napolitano. What would be a better compromise? What
would help not dry up that pool?
Mr. Sparks. We have been fighting for decades to get a
natural flow of decent quality water from the headwaters of the
Gila Mountains to and through Coolidge Dam so that the entire
stretch or reach of the river can be fresh enough for San
Carlos to use. But at the moment, the water is of such a poor
quality that it kills the crops, it ruins the land, and there
is an injunction by the Federal court ordering that the water
quality be improved to San Carlos Apache to a point where they
can grow moderately salt-sensitive crops. But that has not
occurred. The river dries up because it is pumped upstream and
does not come to San Carlos.
Mrs. Napolitano. Do the requirements of the river for
pumping include sufficient water for that pond?
Mr. Sparks. No, it doesn't.
Mrs. Napolitano. Has the Department of Interior or any
agency looked at ameliorating the issue of water quality, in
other words, setting up a plant to be able to treat the water
so that it can be utilized?
Mr. Sparks. If they have, it is a well-guarded secret. The
answer, to our knowledge, is no.
Mrs. Napolitano. Thank you. You have answered the
questions. I will go for another round after you are done.
Mr. Renzi. OK. Thank you.
Ms. Kitcheyan. Congressman Renzi, may I add something to
that----
Mr. Renzi. Yes, ma'am, please.
Ms. Kitcheyan [continuing]. For the Congresswoman? Please?
Mr. Renzi. Please.
Ms. Kitcheyan. Because of the quality of the Gila River
that runs through our reservation, we have experienced a lot of
birth defects, cleft palates, also a lot of cancer, breast
cancer, and I can attest to that because my son was born with a
cleft palate. My daughter was born deaf in one ear, what you
call a cauliflower ear. And I just wanted you to know that.
Thank you.
Mrs. Napolitano. Have there been any studies by any of the
universities to affirm that the issue may be the water?
Ms. Kitcheyan. In the past, Indian Health Service has
started, but have left the research of it.
Mrs. Napolitano. Is there a possibility, then, that part of
the amendments to this water bill maybe will address the issue
of water quality?
Ms. Kitcheyan. I would like to see that, ma'am.
Mrs. Napolitano. Thank you.
Ms. Kitcheyan. Thank you.
Mr. Renzi. I thank the gentlelady.
I just have a few questions I want to help flesh out here
before we go back to a third round, if the gentlelady would
like to.
Mrs. Napolitano. I would.
Mr. Renzi. OK. I want to stay on the idea of talking about
the pool of water behind the dam. I personally have fished the
lake and know firsthand the reliance the San Carlos Tribe has
on the tourism, the fees, and the prosperity of that pool of
water that we made.
When we talk about getting wet water to that lake and the
idea that the Upper Valley users are using at a level that
causes the water not to flow all the way down to the lake, part
of the problem also is, knowing the area and being from my
district, that we have got salt cedars that just clog the river
bed to the point where it contributes to the high sodium levels
and possibly to some of the impacts that we have been hearing
today.
Have we had an opportunity at all to look at the
alternative of how we would actually physically get wet water
there--I mean, realistically get water to the pool and the idea
that the offer from Governor Narcia of the pipeline? Are there
any thoughts, Joe or Kathy, on that?
Ms. Kitcheyan. Congressman, I would like to have Joe answer
that, please.
Mr. Sparks. Congressman Renzi, Mr. Chairman, thank you for
providing that to us and we have evaluated it. Let me explain
that it proposes to deliver the Globe Equity water that the San
Carlos Apache is entitled to by developing a well field next to
the reservation at Goodwin Wash, which would then provide
underground water to the pipeline and deliver it to the
reservation boundary.
That has two problems. One is that it certainly is a good
faith suggestion by Governor Narcia. That is not a problem. The
problem is that it further diminishes the water flow of the
Gila River and further degrades the quality of the natural
flow. It also does not comply with the Creed, because the court
has ruled specifically, and it has been appealed to the Ninth
Circuit and confirmed, that San Carlos Apache is entitled to
the natural flow of the Gila River and, therefore, that isn't a
practical way to comply with the decree.
Mr. Renzi. Joe, are we going to be able to get the river,
honestly, and I am grateful for the articulation you are
teaching me--are we ever going to really be able to get the
river to the point where we could run it all the way from New
Mexico through the Franklin Water District, the Safford cotton
growers, all the way to the pool? Is that a reality, or are we
really probably looking at some point at a pipeline?
Mr. Sparks. That is a reasonable question, and it would be
reasonable for you to ask it even if it was unreasonable.
[Laughter.]
Mr. Sparks. But the answer is, under the proposed
settlement, it is not realistic to expect that the river will
flow except at flood flows. And the proposal has been made in
the past that a canal be developed, or pipeline, all the way
from the head of Safford Valley at San Jose Diversion all the
way to the San Carlos Apache points of use. That certainly
would supply high-quality water at that location. It does
nothing to address the inadequacy of San Carlos Apaches' water.
The one thing that has never been given serious thought,
which in my mind is the only safety valve that may be possible
to relieve some of this problem, is actually a pipeline from
the CAP canal to San Carlos Lake, which would allow CAP water
to be parked in San Carlos Lake, much like it is in Lake
Pleasant as increased. It is very expensive, but it is the one
place where water can be parked at a time when demands on the
CAP canal is lower and the water could then be used not only to
buffer and mitigate upstream diversions at various times, but
it also could be used to move water downstream to Ashurst,
Hayden, and on down to Tucson when the CAP canal is at
capacity.
Mr. Renzi. Thank you, Joe.
Governor Narcia, there has been some discussion,
particularly in Chairwoman Kitcheyan's comments, about the
Globe Equity Decree and their rights. Could you discuss or have
counsel discuss briefly how the settlement or how the opinion
of the tribe is that it may override the settlement, override
their rights?
Mr. Narcia. If I understand your question regarding
overriding their claims----
Mr. Renzi. I am just looking for--yes, the claim of the San
Carlos Apache is that this settlement is going to override
their Globe Equity Decree rights and I am just looking for your
response.
Mr. Narcia. Congressman Renzi, no, it does not. We have
simply agreed not to enforce our rights upstream for the
upstream diverters. The San Carlos Apache Tribe and the United
States on their behalf remain completely free to pursue
enforcement of their rights. We have in the past been in court
with the San Carlos Apache Tribe doing just that. Our
settlement means that only we will no longer pursue the
enforcement together. The San Carlos Apache Tribe can certainly
continue on their own.
Also, the 1992 San Carlos Apache Tribe settlement did not
interfere with our ability to assert our rights under the 1935
Globe Equity Decree. In the same fashion, our settlement does
not interfere with the San Carlos Apaches' ability to assert
their rights.
Mr. Renzi. I thank the gentleman.
I am going to move now to the Congressman from Arizona, Mr.
Hayworth.
Mr. Hayworth. Mr. Chairman, I thank you very much, and
again, thanks to all the witnesses for coming and taking part
in this worthwhile hearing. I think we still hear, as has been
chronicled this morning, that a great deal of work is done and
there is some work that remains.
Governor Narcia, could you describe some of the steps you
have taken to work with the other tribes in your settlement
negotiations with the United States and the other settlement
parties?
Mr. Narcia. Early in our negotiations, we met and discussed
with other Arizona Indian tribes our water settlement for the
Gila River. We desire to approach the settlement with non-
Indian parties with a common effort with other tribes.
During the negotiation process, we met with representatives
of the San Carlos Apache Tribe, the Tohono O'odham Nation. I
personally participated in numerous meetings with the San
Carlos Apache Tribe. In addition, our negotiation team
participated in dozens of meetings with them, also.
During the negotiations, we also met with representatives
of the Tohono O'odham Nation. The community shared with the
representatives of the Nation our settlement agreement and
proposed legislation. In turn, the Tohono O'odham Nation shared
with us drafts of their proposed legislation and settlement
agreement.
In addition, we met several times to discuss common
concerns. Recently, we have met with the majority of the tribal
leaders, including Walapi Nation, the Camp Verde Yavapai Tribe,
Hopi Tribe, San Carlos Tribe, and Cuchan to discuss issues
surrounding water settlement. We will continue to meet and I
remain personally available for any future meetings as
appropriate.
Mr. Hayworth. Thank you very much, Governor.
Let me turn to Director Guenther of the Arizona Department
of Water Resources. Mr. Guenther, do you believe this bill will
allow for adequate water and financial resources to help
resolve other water rights settlements?
Mr. Guenther. Mr. Hayworth, no. I mean, I can elaborate on
that, if you would like.
Mr. Hayworth. Please.
Mr. Guenther. Obviously, the difference between the claims
and what is available is significant. There are more claims to
water in Arizona than there is water on any river system that
we have, and the Gila is no different. The Gila is different
inasmuch as it is a much, what do I say, it is either feast or
famine on the Gila, and so you don't have significant
dependable base flows that are available for the settlement of
perfected long-term or Federal reserve rights.
Now, a lot of that water has already been divided up by
decree and so we are left with waters that are imported from
the Colorado River, which then through exchange can be made
available for rights that would have been on the Gila River.
That water is limited, too. The Central Arizona Project really
is only entitled to about 1.4 million acre feet off the
Colorado River. All the other rights are higher priority and
perfected by users along the Colorado River.
So if you take that 1.4 million and then you assess the
claims that are against it, you tend to run out of water very
quickly. And so in this--I think the settlement is fair in the
division of the waters between the non-Indian and Indian
communities, but is there enough water to settle all the
claims? No. Is there water there to settle a lot of the
realistic uses, the beneficial uses that this water could be
put to on Indian lands as well as non-Indian? I believe it
would go a long way toward that end.
Mr. Hayworth. Director Guenther, I thank you for that
candid answer and I think it reaffirms the importance of this
hearing and what transpires with this vital resource that is so
important to us all, water, within the State of Arizona. And
again, I want to thank everyone for coming today.
You mentioned some of the previous decrees, some of the
challenges that brought us here. But for the record, obviously,
there are other Indian tribes with claims on other river
systems in the State of Arizona, for example, the Salt River.
With your knowledge of the Salt River system, granted that we
have typified here, specified that there is never enough to
anyone's liking in an ideal situation, because, after all, so
much of our State is desert, with reference to the Salt River
system, how much water is there that could be used to satisfy
claims?
Mr. Guenther. Well, really, there is no water available. I
mean, the Salt River is overallocated, as well. So if you want
to say, is there any water available to settle outstanding
claims of a higher priority right, the answer would be no. But
that is--the way the system works, as far as appropriated water
is concerned and doctrine of appropriation, right in time,
first in right. So if you are going to negotiate a settlement
of claims that have a more senior right, then you take water
from a current user and make that water available to satisfy
that senior right, which has been done on all of the river
systems and is involved--that is basically what we are doing
here with this bill.
Mr. Hayworth. Director Guenther, thank you.
Just in closing, and I thank you all for the time, and I
thank you, Mr. Chairman, for being very respectful of the time,
for those who have come here to testify on H.R. 885, just a
quick answer. Obviously, there are some outstanding issues that
need to be resolved. I would like to ask all parties who are
here in testimony, will you commit to sit down and resolve
these issues promptly?
[Nodding from witnesses.]
Mr. Hayworth. We are seeing nods of ascent.
Ms. Kitcheyan. San Carlos Apache agrees to compromise, to
negotiate in good faith. We also expect the same from everyone.
Mr. Hayworth. Thank you, Madam Chair.
Governor Narcia?
Mr. Narcia. We have always been open to negotiating with
anyone to resolve any issues that we may have. As I said
earlier, this is our highest priority and whatever we need to
do to reach settlement and resolve issues, we are certainly
open to meet with anyone.
Mr. Hayworth. Thank you very much.
Chairman?
Ms. Juan-Saunders. It has taken us 28 years to reach this
level and it is important to bring parties to the table and to
discuss issues and to be respectful of one another. Water is a
precious commodity for everyone and we certainly have done that
in good faith with all parties in Southern Arizona.
Mr. Hayworth. Thank you very much.
Mr. Guenther?
Mr. Guenther. Mr. Hayworth, the Governor's top priority--
Governor Napolitano's top priority--is settling outstanding
claims to water rights, especially with the American Indian
communities. I stand ready to commit to that, as well, and have
already begun negotiations with several tribes who have not
been to the table in quite some time. To the degree that we can
start with realistic water budgets and numbers, it certainly
would enhance the chances of bringing those negotiations to
some beneficial closure.
Mr. Hayworth. Thank you.
Mr. Lopez?
Mr. Lopez. Representative, New Mexico has been working on
identifying the issues that are important to us to assure that
New Mexico's interests are protected and we stand ready to
continue those negotiations in good faith.
Mr. Hayworth. Thank you very much. Ladies and gentlemen,
again, thank you for the testimony. Mr. Chairman, I guess it
just shows again that whiskey is for drinking, water is for
fighting, or perhaps for meaningful mediation, and we are
grateful for the negotiations and thank you all.
Mr. Renzi. Thank you, Mr. Hayworth.
We are going to go one more round here. The gentlelady from
California.
Mrs. Napolitano. I can go another five rounds, really. I
have so many questions that I am sure time will not permit, but
one of the things that really bothers me from what I have heard
is, whether it was Kathy Kitcheyan or Mr. Sparks stating they
would have to pay $74 an acre foot where upstream is about a
third of the cost. Could somebody answer the reason why?
Ms. Kitcheyan. Madam, I will defer that question to our
Legal Counsel.
Mrs. Napolitano. If you will make it short, because I have
several other questions, please.
Mr. Sparks. Mr. Chairman, Congresswoman, the $26 to $28
price is the non-Indian CAP price in the valley, not upstream,
at San Carlos.
Mrs. Napolitano. Upstream, OK.
Mr. Sparks. The decreed water costs about $3.41 an acre
foot, and that is what the local price would be and that is--it
is even a greater disparity. The CAP water costs $74 and $28 is
the spread between what it costs the Indian tribe to use
agricultural water of its own and what it costs the non-Indian
farmer to use the same Indian agricultural water that is unable
to be paid for and delivered to the Indian tribes.
Mrs. Napolitano. And why is that?
Mr. Sparks. Because they can't afford it or they don't have
a delivery system for the exchange systems.
Mrs. Napolitano. And those delivery systems have been
requested be put in place? Have they been negotiated? Have they
been somewhere on somebody's table to be able to address----
Mr. Sparks. Pardon me. They were authorized by the 1968 CAP
Act. They were authorized by the 1980 CAP contracts for each of
the tribes and they really never--the non-Indian systems were
built. The Gila River Indian Community system is being built.
The Achan system was built, but the tribes which require
delivery by exchange have not been built and they will be last
to be built if there is money left over under the Basin Project
Act fund.
Mrs. Napolitano. Mr. Chairman, it looks like the priorities
have to be reorganized.
One of the other questions I would have for Mr. Guenther
from Arizona, under the current law, what happens to CAP Indian
water if it is not used by the tribe and how would that change
under this bill, and if there is excess water, which many times
there won't be, I am sure, any excess water, are the tribes
compensated for that water that is not used by them and used by
other entities?
Mr. Guenther. Congressman----
Mrs. Napolitano. Woman.
Mr. Guenther [continuing]. Napolitano, my sense is right
now, as I recall, that water is excess water----
Mrs. Napolitano. Right.
Mr. Guenther [continuing]. And is available for
distribution under excess water rules by the CAWCD. As far as
what is paid for, usually it is you pay for the water whether
you use it or don't use it. It depends if you have an
allocation for CAP water. It is the same for Indian and non-
Indian.
Mrs. Napolitano. Thank you. I hear a lot of discussion
about the water, the differences, the allocations, but I hear
no one talking about establishing either recycled water
projects or finding out if you have underground water aquifers
where you can store water or being able to do what we are doing
in California, and that is recycling brine water, in other
words, cleaning it for use, another use, and I would like to
have somebody tell me if there is anything in anybody's mind
toward this area, toward this end.
Mr. Narcia. Congressman Napolitano, our bill does, or our
settlement does include reclaimed water was part of our water
budget and the reuse of reclaimed water.
Mr. Renzi. Sir, go ahead. Did you finish?
Mrs. Napolitano. Well, that doesn't totally answer my
question. I think what I am searching for is that American
Indian tribes have forever and ever said that water is sacred.
We are learning that in the inner cities and beginning to take
care of it, or beginning to look at ways of being able to reuse
it. There is no more water. We have water. We just in some
areas do not use it wisely. We contaminate it, and that is
borne out in the defense installations where we now have
volatile organic compounds and perchlorates and all those great
things brought about by industry.
I guess my concern is whether or not your being helped to
be able to harness rainwater, to be able to store it, to be
able to understand how other options are available, if they are
available, and how you can go about instituting those, coming
through for appropriations through this body to assist----
Mr. Hayworth. Would my friend yield for just a second to--
--
Mrs. Napolitano. I certainly do.
Mr. Hayworth. I think it is important just to reaffirm
something that we have had to live under in Arizona for now
over 20 years, the Groundwater Management Act, which I think
for all water users, both Native American and non-Native
American, that has been something that we have done and we are
pleased to see others are doing it and I am pleased that you
raised that, but I believe that is something under which we all
live within the State of Arizona and have done so for the
better part of two decades.
Mrs. Napolitano. Thank you. Well, I am talking about
utilization of rainwater, capturing, storing, et cetera, and
that is where I am coming to, is those other issues that--I
know underground water management has been totally all over in
Arizona and New Mexico.
Ms. Juan-Saunders. Mr. Chairman, Congressman Napolitano,
the Tohono O'odham Nation is located in Southern Arizona. We
live in the desert. We survive temperatures of 110 degrees
every summer, and over the last eight to 10 years, we have
experienced severe drought and just 2 years ago requested a
state of emergency for the whole State of Arizona in Southern
Arizona. So rainwater is precious to us, but we are not
getting--we can't control Mother Nature.
Mrs. Napolitano. Correct.
Ms. Juan-Saunders. So any alternative sources of water is
so important to the Nation.
Mrs. Napolitano. Have you been able to identify any
underground storage capability or capacity?
Ms. Juan-Saunders. Not at this point.
Mrs. Napolitano. Thank you very much.
Mr. Renzi. I thank the gentlelady. I want to----
Mr. Narcia. Mr. Chairman?
Mr. Renzi. Please, go ahead, sir.
Mr. Narcia. You know, water conservation has been uppermost
in the minds of Gila River. You know, your suggestion with the
rainwater, the annual rainfall in Arizona, or Southern Arizona,
is about seven or 8 percent a year, or annually, so there isn't
much rainwater to come. But living on, as Chairman Saunders
stated, we are in a desert and water conservation is the
highest priority for us and the use of that water.
Mr. Guenther. Mr. Chairman, if I could just add a little
bit to that, to answer----
Mrs. Napolitano. I just want to say, I don't diminish what
is being done. I am just wondering if all other options, all
other assistance from the government, from the Department of
Interior, from Bureau of Reclamation, from the Army Corps of
Engineers have been utilized for the tribes. I am not talking
about the major communities, which I am sure can take care of
themselves. I am talking about assisting tribes.
Mr. Guenther. Yes, and we do that. Most of our major
projects, the San Carlos Project, which Coolidge Dam, that is
an Indian project. We have the Salt River system, which
captures just about every drop of rain or snow that comes off
the watersheds. And then, of course, we have the Verde River
systems, which is on the other side of the State, which
captures all the water that comes off those watersheds. And
then at the bottom of it, we have one dam that never has water
in it which is used to take the crest off floods.
But we also have water banking programs, which we bank
water. In fact, we bank water for California and Nevada in
underground banks that by exchange is made available at times
of increased need, and we also have replenishment districts,
which take all the excess water and put that in the ground so
it will evaporate for future use.
Mr. Renzi. I thank the gentlelady.
I have just got a couple of questions. Mr. Pollack, when we
talk about the Navajo Nation and we talk about the settlement
and the ability that it might interfere with water flowing in
from New Mexico into Arizona, could you expand on that and
could you provide me, particularly with Congressman Hayworth
here today, what you see as the simple fix?
Mr. Pollack. Thank you, Congressman Renzi. The solution for
Window Rock's water shortage is to get water from New Mexico,
and we believe that the project that we have negotiated with
the State of New Mexico is the project to do that. That is the
Navajo-Gallup Project. Because the water is used in the State
of Arizona, the Colorado River Basin States abide by the terms
of the Colorado River Compacts, which require that uses
charge--I am sorry, uses that are made within any given State
be charged against that State. So even though we would be
taking water from the San Juan River in New Mexico, in order to
charge it to the place of use, we would need to get an Arizona
water right to do that. So what we are seeking is an Arizona
water right.
We think that the easiest solution is simply for the
Secretary of the Interior to allocate 6,400 acre feet of water
under her control. We can't get that allocation under the
provisions of 104(b) without an Arizona settlement. Ironically,
we would have a settlement with New Mexico, but not one with
Arizona and, as I said before, there are a myriad of issues
that we have with the State of Arizona. We are ready to move on
a New Mexico settlement and the Window Rock water supply simply
can't wait to resolve all the issues we have with Arizona.
We believe that an appropriate fix would be for this
legislation to carve out 6,400 acre feet of water, not for the
Navajo Nation but 6,400 acre feet of water that could be held
by the Secretary of the Interior in the event that there is a
Congressionally approved water rights settlement with the State
of New Mexico to provide that 6,400 acre feet. So we would have
parallel provisions.
Mr. Renzi. Thank you. Is there anyone who would like to
comment on that?
Mr. Guenther. Mr. Chairman, I can comment on it. We--
obviously, we are talking about two different basins here, but
I do see the Navajo's concern with regard to the limitations
that 104(b) may or may not legally impose. But regardless of
which way we do go, I would ask that we participate very
closely in any words that are chosen with regard to this type
activity because it involves 1922 Compact issues, which are
extremely sensitive in the Basin States. It is a matter of
Upper Basin right versus Lower Basin right, Upper Basin
diversion use and Lower Basin. I mean, they are artificial
boundaries, but----
Mr. Renzi. You don't necessarily agree that the settlement
would impede the ability? You are not sure about that? You need
to research that more?
Mr. Guenther. Yes, and it would not impede the ability of
using a leased right or a purchased right, of a retired
agricultural right of some other type on the river. But I think
Mr. Pollack is probably correct that it could be interpreted to
include an allocation.
Mr. Renzi. OK. We can work on that, too, then.
Let me finish up by asking Chairwoman Kitcheyan, we spoke a
little bit about the Globe Equity Decree and the fact that you
feel that the settlement would impinge on those rights.
Governor Narcia addressed it by saying that he is willing to
give up his upstream rights. Chairwoman Kathy, do you want to
comment on that?
Ms. Kitcheyan. You know, I was listening to Governor Narcia
talked about the upstream rights. Though we have not met to
discuss this, I have been in office 9 months now and we did
have one meeting scheduled, and unfortunately, I was ill, so we
didn't meet to discuss it.
However, on the Globe Equity, you know, that has been since
1935 and we have never received our full allocation of it. I
would certainly like to see Governor Narcia give up his right
plus more. Thank you.
[Laughter.]
Mr. Renzi. I think--yes, go ahead, Joe.
Mr. Sparks. Mr. Chairman, in further response and
supplement to the Chairwoman's response, the Gila River Indian
Community is not giving up their Globe Equity rights. They
still will have the right to take, when the river is running on
priority, the first 437.5 cubic feet per second of the natural
flow of the river. What they have potentially agreed to is that
the Upper Valley pumpers can take that water in disregard of
Gila River's priority to have the first 437.5 cubic feet per
second. But Gila River has not given up its right to call on
that water and the result of that is that the pumpers will
continue pumping in violation of the decree at least as to the
way San Carlos is treated----
Mr. Renzi. And the threat that you----
Mr. Sparks [continuing]. And the flow of the water will be
reduced by that pumping.
Mr. Renzi. OK. Let us wrap up. Is there anything
substantive that remains in any of your hearts that hasn't been
drawn out? Real quick. We are going to go to votes here in
about 5 minutes. Speak now, please. Is there anyone else who
would like to address any issue of a substantive nature?
[No response.]
Mr. Renzi. OK. With that, I want to thank the witnesses for
their valuable testimony. I want to thank the members here for
their questions. Members of the Subcommittee may have
additional questions for the witnesses and we will ask that you
respond to these in writing. The hearing record will be open
for 10 days for these responses.
If there is no further business before the Subcommittee, I
thank the members of the Subcommittee and our witnesses. The
Subcommittee stands adjourned.
[Whereupon, at 12:33 p.m., the Subcommittee was adjourned.]
The following information was submitted for the record:
Arizona Cities of Chandler, Glendale, Goodyear,
Mesa, Peoria, and Scottsdale, Statement submitted for the
record in support of H.R. 885
Fines, L. Anthony, Attorney for Gila Valley
Irrigation District and David A. Brown, Attorney for Franklin
Irrigation District, Statement submitted for the record
Gila River Indian Community, Supplemental
testimony submitted for the record
Hawker, Hon. Keno, Mayor, City of Mesa, Arizona,
Statement submitted for the record
Mason, Douglas, General Manager, San Carlos
Irrigation and Drainage District, Coolidge, Arizona, Statement
submitted for the record in support of H.R. 885
Payson, Town of, Arizona, Statement submitted for
the record by the Mayor and Common Council in support of H.R.
885
Renner, George, President, Board of Directors,
Central Arizona Water Conservation District, Statement
submitted for the record
Rimsza, Hon. Skip, Mayor, City of Phoenix,
Arizona, Statement submitted for the record in support of H.R.
885
Sullivan, John F., Associate General Manager,
Water Group, Salt River Valley Water Users Association and Salt
River Project Agricultural Improvement and Power District,
Statement submitted for the record in support of H.R. 885
Talley, Hon. Van, Mayor, City of Safford,
Arizona, Statement submitted for the record in support of H.R.
885
Statement submitted for the record by the Arizona Cities of Chandler,
Glendale, Goodyear, Mesa, Peoria, and Scottsdale
Chairman Calvert and Members of the Subcommittee:
The Arizona Cities of Chandler, Glendale, Goodyear, Mesa, Peoria
and Scottsdale (``Cities'') appreciate the opportunity to submit this
testimony in support of H.R. 885. The Cities collectively represent
more than 1.6 million people within the Phoenix metropolitan area of
Maricopa County, Arizona. H.R. 885 is very important to the Cities and
other water users throughout Arizona.
H.R. 885 approves the settlement of ongoing disputes over the past
decade between the United States and Arizona interests concerning
Central Arizona Project (``CAP'') repayment and water allocation
issues. H.R. 885 also approves the settlement of long-standing disputes
relating to the Gila River Indian Community water right claims. The
Gila River Indian reservation includes a large land area of
approximately 372,000 acres immediately south of the Phoenix
metropolitan area where the Cities are located.
H.R. 885 resolves these contested CAP repayment, CAP water
allocation and Gila River Indian Community water rights claims in a
manner that is fair and equitable to all parties. H.R. 885 is important
to the Cities and their future water management. It provides more
certainty regarding the Cities' future water supplies while settling
complex and contentious CAP and Indian water rights claims.
The Cities are contributing substantial financial and water
resources to the Gila River Indian Community as part of the Gila River
Indian Community Settlement. The City of Chandler is directly
contributing 4,500 acre feet of reclaimed water annually to the Gila
River Indian Community as part of the Settlement. In addition, both
Chandler and Mesa are annually contributing up to 8,100 acre-feet of
additional high quality reclaimed water to the Gila River Indian
Community as part of the Settlement. The Cities have contributed
millions of dollars in treatment and delivery infrastructure to provide
this water to the Gila River Indian Community at no cost to the
Community or the United States. The other Cities are contributing tens
of millions of dollars to the Settlement by leasing CAP water from the
Community.
The Cities' consideration for the above contributions also includes
the benefits the Cities are receiving under Title 1 of H.R. 885. The
settlement of the CAP issues reflected in Title 1 of H.R. 885 is
directly connected to the settlement of the Gila River Indian Community
water rights claims.
Title 1 approves the reallocation of CAP water previously
designated for allocation to Arizona municipal and industrial
interests. Since the mid-1980's, 65,647 acre-feet of CAP water that was
designated by the Secretary of Interior for allocation to Arizona's
municipal and industrial sector has remained uncontracted. This
represents enough water to serve a population of nearly 300,000 people.
Despite the undeniable need for the water by Arizona's Cities and
Towns, this water has remained unallocated because of various disputes
between the United States and the Central Arizona Water Conservation
District over the CAP repayment obligation and allocation of CAP water
between Federal and non-Federal interests. H.R. 885 resolves those
disputes and provides a final allocation of CAP water between federal
and state interests in Arizona. Under Title 1 of H.R. 885, the Cities
each receive a specific allocation of the uncontracted municipal and
industrial CAP water, which is needed to serve their growing
populations.
In addition, the Cities' municipal and industrial CAP subcontracts,
like the Gila River Indian Community's CAP contract, will be expressly
recognized as permanent service contracts with the existing delivery
terms extended for 100 years. Title 1 of H.R. 885 also provides for the
future allocation of 96,295 acre-feet of agricultural priority water to
Arizona's municipal and industrial interests.
The settlement of the Gila River Indian water rights claims as
approved by H.R. 885 accomplishes many objectives. First, the
Settlement Agreement permanently settles all water rights claims of the
Gila River Indian Community to both surface water and groundwater,
including all appropriative rights, federal reserved rights and
aboriginal rights. Second, it resolves disputes as to groundwater
pumping, land subsidence and water quality. Third, it will provide the
Gila River Indian Community with a significant water right to develop
the Community's lands. Fourth, it will furnish the Gila River Indian
Community with adequate financial resources to allow for the beneficial
and productive use of the water resources provided by the Settlement.
This Settlement also will allow the parties, Native American and non-
Native American, to plan for the future use and development of their
water resources in cooperation rather than in conflict, and with
certainty rather than uncertainty.
H.R. 885 also provides an additional 214,500 acre-feet of CAP water
to be allocated to Federal interests in the State. This represents a
significant transfer of water from non-Federal to Federal interests
within Arizona. However, the Cities recognize that the transfer of this
water will help resolve Indian water rights claims, including the
claims of the Gila River Indian Community and other Native American
interests whose water rights claims have not yet been settled.
H.R. 885 also resolves significant claims against the federal
government, some of which involve only the federal government and the
Gila River Indian Community. H.R. 885 provides an important opportunity
for the federal government to meet its trust obligations to the Native
American communities involved while at the same time providing long-
term certainty regarding available Central Arizona Project Water
(``CAP'') supplies to both Native American and non-Native American
interests in Arizona.
All parties to the CAP and Gila River Indian Community settlements
benefit by settling their claims rather than continuing with protracted
litigation. This settlement, as approved by H.R. 885, provides
extensive and creative mechanisms to accomplish all the parties'
objectives. These mechanisms are unavailable through a court process.
These creative mechanisms include exchanging reclaimed water for some
of the Gila River Indian Community's Central Arizona Project Water and
the Cities leasing CAP water from the Community. The settlement also
includes the use of some state parties' water facilities to deliver
water designated for the Community under the Settlement. This
settlement provides for the parties to work together to accomplish
their respective water use objectives and needs rather than continuing
to devote substantial sums litigating over the nature and extent of CAP
water allocation rights and the Gila River Indian Community's water
rights.
The settlement of the CAP repayment and water allocation issues
allows the parties to plan adequately for the future by eliminating
uncertainty regarding available CAP water supplies and the Gila River
Indian Community's water rights claims. The problems that H.R. 885
resolves are serious problems, both for Arizona and the federal
government. H.R. 885 represents a fair settlement of the disputes over
the CAP repayment and water allocation issues, and the Gila River
Indian Community's water rights claims. We therefore urge your support
of H.R. 885 and appreciate the opportunity to provide our written
testimony to you.
NOTE: This statement was signed by the following individuals:
Boyd Dunn, Mayor, Chandler, Arizona
Elaine M. Scruggs, Mayor, Glendale, Arizona
Jim Cavanaugh, Mayor, Goodyear, Arizona
Keno Hawker, Mayor, Mesa, Arizona
John Keegan, Mayor, Peoria, Arizona
Mary Manross, Mayor, Scottsdale, Arizona
______
Statement submitted for the record by L. Anthony Fines, Attorney for
Gila Valley Irrigation District, and David A. Brown, Attorney for
Franklin Irrigation District
Chairman Calvert and Members of the Subcommittee, we have read
some, but not all, of the testimony presented on behalf of the San
Carlos Apache Tribe with respect to H.R. 885, the Arizona Water
Settlements Act. In our opinion, much of the testimony presented on
behalf of the San Carlos Apache Tribe is incorrect or not true. We do
not have the time to address all the errors, but one error is
especially significant. In the settlement that we are negotiating on
behalf of the Gila Valley Irrigation District and the Franklin
Irrigation District with the Gila River Indian Community, all parties
have been careful to draft the language so that the rights of the San
Carlos Apache Tribe will be unaffected by the settlement. In fact, the
San Carlos Apache Tribe will have the same opportunities and ability to
assert its rights after the settlement that it now has. We are hopeful
that we will also be able to negotiate a settlement on behalf of our
clients with the San Carlos Apache Tribe. If we are unable to reach a
settlement with the San Carlos Apache Tribe, we will agree to any
appropriate amendments to make clear that the rights of the San Carlos
Apache Tribe are unaffected by our clients' settlement with the Gila
River Indian Community.
Thank you for the opportunity to present this rebuttal statement.
L. Anthony Fines
David A. Brown
______
Statement submitted for the record by the Gila River Indian Community
This supplemental testimony is being submitted to correct certain
errors, omissions, and misstatements contained in the testimony of the
San Carlos Apache Tribe (SCAT). Because of the large number of such
errors, omissions and misstatements the Gila River Indian Community
(Community) has limited its supplemental testimony to those that were
most egregious or potentially misleading. The italicized text below
indicates the error, omission or misstatement being addressed and the
Fact section presents the Community's correction for the record.
I. San Carlos Apache Reservation
A. Water sources
During the hearing before the House Water and Power Subcommittee of
the House Resources Committee, the Chairperson of the San Carlos Apache
Tribe asserted that the flow of the Gila River was contaminated by
pollution that causes birth defects on the SCAT Reservation.
Fact: First, as discussed in greater detail below, the only known
water quality issue present in the upper Gila River concerns salinity
from within the Gila River basin. It is generally accepted that
elevated salinity levels in water, particularly of the levels found in
the upper Gila River basin, do not, by themselves, cause birth defects.
The Community recently contacted local and state health officials to
confirm that there is no known connection between salinity in water and
birth defects.
Second, even if there were a connection between increased salinity
and birth defects, which there is not, SCAT's written testimony to the
Committee confirms that SCAT does not use Gila River water for any
domestic or municipal use but rather relies exclusively on groundwater
for domestic and municipal uses.
Third, although the rate for all Arizona Indians is high by
comparison to non-Indians, the rate of birth defects at SCAT (2.4%) is
not elevated at all by comparison to the average rate of all other
tribes in Arizona (2.5%).
During the hearing, an attorney for SCAT indicated that federal
court rulings explicitly require the delivery of SCATS 6,000 acre-feet
of water per year (af/y) by direct diversion from the Gila River,
rather than by means of an upstream diversion into a pipeline that
avoids high salinity springs that flow into the Gila River.
Fact: SCAT's written testimony includes the Water Quality
Injunction issued by the Globe Equity Court on May 28, 1996, which
states:
``Nothing in this injunction shall prohibit the parties, upon
agreement or by order of this Court, from connecting the Apache Tribe's
irrigation system directly to the canals of the Gila Valley Irrigation
District for Delivery of water directly to Apache farm lands. The
connections may be made by canal or a pipe.'' (SCAT Exhibit K, p. 14
(emphasis supplied).)
II. Overview of Title I and Title II of the Arizona Water Settlement
(sic.) Act (S. 437 and H.R. 885)
The settlement agreements and the exhibits to the settlement
agreement ``attempt to `legislate' the water rights of [certain]
parties in lieu of their adjudication in the Gila River Adjudication.''
(p. 3)
Fact: First, a condition of the enforceability of the Arizona Water
Settlements Act is the approval by the Gila River Adjudication Court of
the Gila River Indian Community Water Rights Settlement Agreement
(Settlement Agreement). Thus, any water rights confirmed to the
Community as a result of this settlement will be reviewed, and
hopefully approved, by the Gila River Adjudication Court. During this
court approval process any affected party, including SCAT or the United
States on its behalf, may object to the settlement stating the grounds
for their objection. The Gila River Adjudication Court will then render
a judicial determination itself approving the Settlement Agreement or
not.
Second, all of the Indian tribes with claims to the waters of the
Gila River and its tributaries are participating in the Gila River
Adjudication. Several of these Indian tribes, including SCAT, have
reached agreements with other parties asserting adverse or competing
claims. These agreements provide that in exchange for an agreement on
the amount of reserved right to be asserted by or on behalf of the
Indian tribe, the tribe and the United States in its trust capacity for
that tribe, agree not to challenge the claims of the parties to the
agreement. In addition to entering such an agreement, SCAT sought and
obtained a Special Proceeding before the Gila River Adjudication Court
to obtain expeditious consideration of its agreement. The Court's order
was issued December 12, 1999. There is absolutely no basis for SCAT to
challenge the Community's effort to utilize the same process to reach
settlements in the Adjudication. The Community's settlement no more
``legislates'' water rights in the Adjudication than the SCAT
Settlement, the Fort McDowell Settlement, the Salt River Pima-Maricopa
Settlement, or the Yavapia-Prescott Settlement.
``The proposed legislation also attempts to settle all pending
disputes between certain decreed parties in the Globe Equity No. 59
proceeding. (p. 3)''
Fact: First, the legislation and the Settlement Agreement only
address the Community's pending disputes with certain parties in the
Globe Equity 59 enforcement proceeding. All other parties, including
SCAT, retain all their legal rights in connection with any pending or
future proceedings to protect their rights or claims to water in
Arizona.
Second, an additional condition to the enforceability of the
Arizona Water Settlements Act is the approval of the Community's
Settlement Agreement by the Globe Equity Court. Thus, any water claims
settled by the Community as a result of this settlement will be
reviewed, and hopefully approved, by the Globe Equity Court. During
this court approval process any affected party, including SCAT or the
United States on its behalf, may object to the settlement stating the
grounds for their objection. The Globe Equity Court will then render a
judicial determination itself approving the agreement or not.
``The settlement agreements would allow Gila Valley and Franklin
Irrigation Districts to continue to pump up to six acre-feet per year
of water from the `subflow' of the Gila River in violation of the
Tribe's senior 1846 water rights under the Globe Equity Decree and
continue to divert water for `hot lands' which do not have any decreed
water rights.'' (p. 3)
Fact: The Community has agreed not to challenge uses of up to 6 af/
y of water (by pumping and direct river diversions) on a number of
acres that is reduced from current levels by 3,000 acres. The
Community's agreement not to challenge such uses is contingent on the
Upper Valley Diverters' (``UVDs'') compliance with very specific
conditions set forth in the UVD Agreement, including monitoring
requirements and control of phreatophytes, among many others. The
existing ``hot lands'' are part of the acreage limit to the extent they
become Decreed lands pursuant to application to Globe Equity court for
such status. SCAT may object to such application, as may the United
States on SCAT's behalf, or any other party except the Community.
Overall, the UVD agreement will unquestionably reduce UVD water use
and consumption. Diversion and pumping records for the period 1936-1997
clearly show that pumping and surface diversions as well as total
consumptive use of water by crops will be reduced when the Settlement
Agreement is fully implemented. The Settlement Agreement holds the UVDs
to total pumping and diversions of approximately 181,860 af/y. In every
year since 1956, the UVD's combined pumping and diversions have
substantially exceeded this amount. The average of the UVDs' combined
pumping and direct diversions for the period 1937 to 1997 was almost
230,000 af/y.
Most significantly, all uses of water, even uses that conform to
the UVD agreement, will still remain subject to challenges by SCAT if
they believe such uses affect their 1846 water right. There is nothing
in the legislation, the Settlement Agreement or its exhibits which
prevents SCAT or the United States, in any capacity other than as
trustee for the Community, from proceeding with any new or existing
claims against the UVDs.
III. Central Arizona Project
B. Repayment of CAP debt to United States
``If CAWCD's debt was $1.65 billion, that would leave approximately
$2.35 billion in project costs unresolved and possibly charged to
Indian lands.'' (p. 6-7)
Fact: There is simply no basis in federal law or policy for even
speculating about whether CAP costs will be disproportionately charged
to Indian tribes because the Colorado River Basin Project Development
Act of 1968 (CRBPA) imposes the following limitation:
``The Secretary shall determine the repayment capability of Indian
lands within, under, or served by any unit of the Central Arizona
Project. Construction costs allocated to irrigation of Indian lands and
within the repayment capability of such lands [shall be indefinitely
deferred as provided in 25 U.S.C. Sec. 386a], and such costs that are
beyond repayment capability of such lands shall be nonreimbursable.''
(43 U.SC. Sec. 1542, emphasis supplied)
Other parties address the SCAT's other misstatements about CAP
repayment.
C. CAWCD sells Indian water to non-Indians and keeps the income
D. CAWCD discriminates against Indians in its pricing structure for CAP
water which makes tribal use of CAP water under Indian
contracts cost prohibitive
E. Disincentive to construct tribal CAP projects due to CAWCDs ability
to market Indian water for non-Indians and keep the income
Fact: The Community agrees that CAWCD has very recently proposed a
problematic ``excess water'' pricing scheme, which, if implemented,
would allow non-Indians to purchase CAP water at a lower rate than
Indian tribes. Such policy would affect the Community more than SCAT
because the Community has an existing CAP allocation of water that is
larger than that of SCAT. The enactment of Title I of S. 437 and H.R.
885 will provide immediate relief from the disparity caused by this
proposed CAWCD pricing scheme. In addition, because CAWCD will be
reimbursed by the federal government for fixed Operation, Maintenance,
and Replacement (OM&R) charges for CAP water held under long-term
tribal contracts, and not reimbursed for such charges for ``excess
water'', the CAWCD's incentive will be to encourage the use of CAP
water by Indians.
H. CRBP development fund will be used for non-project purposes and will
continue to be used to the disadvantage of Indians
Fact: Each of the points raised in this section are effectively
refuted by the proposed amendment to Sec. 403 (43 U.S.C. Sec. 1543) of
the Colorado River Basin Project Act (CRBPA).
Three sources of revenue established by the CRBPA and the ``annual
payment by the CAWCD to effect repayment of reimbursable CAWCD
construction costs [$1.65 billion], shall be credited against the
annual payment owed by the CAWCD,'' and then all of these funds:
``shall be available annually, without further appropriation, in
order of priority: (A) to pay fixed operation, maintenance, and
replacement charges associated with the delivery of Central Arizona
Project water under long-term contracts for use by Arizona Indian
tribes.'' (Sec. 107(a))
``GRIC is first in line to take the credits from the annual
payments made by CAWCD each year. GRIC proposes to not only use the
Fund for CAP purposes * * * it will use $147 million to rehabilitate
its BIA San Carlos Irrigation Project system which delivers water to
GRIC from the Gila River.'' (p. 12)
Fact: The Settlement Agreement ratified by S. 437 and H.R. 885
impose an annual cap of $25 million on the amount of money available
from the Lower Colorado River Basin Development Fund (Development Fund)
for San Carlos Irrigation Project (SCIP) rehabilitation. This ensures
that every year there will be millions of dollars in excess of this
particular cap that can and will be applied to other Indian projects.
At the request of other parties, the Community agreed to this annual
limit to ensure that other Indian water projects are also paid for on
an ongoing basis. The Bureau of Reclamation has developed a projection
of funding inflows and outflows for the Development Fund that
demonstrates that all Indian projects currently contemplated, including
SCAT, will be funded in a timely and certain manner.
SCAT appears to argue that none of the Development Fund should be
available for tribal irrigation systems unless those systems are used
exclusively for CAP water. Yet the SCAT project authorized by its 1992
settlement, and funded by the Development Fund, will deliver both CAP
water and non-CAP water. ``The draft EIS will evaluate reasonable
alternative methods of delivering the CAP water and other waters''
including 6,000 af/y of G.E. 59 decreed water, 7,300 af/y from the
Black and/or Salt Rivers, and water from local Tribal water sources.
(Notice of Intent to Prepare EIS, 67 Federal Register 8316 (February,
2002)
In addition, SCAT's argument would deny access to the Development
Fund to the Navajo Nation, Hopi and possibly other Indian tribes in the
Gila River watershed and other Arizona watersheds if they obtain
settlements that include non-CAP water supplies.
I. The proposed legislation will require that tribes have a water
rights settlement in place before a tribe can use CAP water
whereas non-Indians have been able to use CAP water for years
without a settlement of water rights
``Tribes without water settlements will not have their CAP delivery
systems built until a settlement is in place. That violates the Tribe's
CAP contracts.'' (p. 13)
Fact: This statement simply ignores the provisions of S. 437 and
H.R. 885, which provide that both CAP repayment funds and appropriated
funds are available ``to pay the costs associated with the construction
of distribution systems required to implement the provisions of * * *
(II) section 3707(a)(1) of the San Carlos Apache Tribe Water Settlement
Act of 1992 (106 Stat. Sec. 747)'' (emphasis added), which includes CAP
delivery components. See Section 107(a) (amending section
403(f)(2)(D)(i)(II) of the CRBPA). Both bills also explicitly make
funds available for the construction of on-reservation distribution
systems for the Yavapai Apache (Camp Verde), Pascua Yaqui, and Tonto
Apache Indian tribes along with the Sif Oidak District of the Tohono
O'odham Nation.'' (See Section 107(a)(amending section 403(f)(2)(E) of
the CRBPA.)
In addition, SCAT's testimony acknowledges that money from annual
appropriations, as well as funds from the Development Fund, will be
available to underwrite the cost of these and other Indian distribution
systems in Arizona. (p. 14).
``For over 10 years, the San Carlos Apache Tribe has had a
settlement in place.'' (p. 14)
Fact: Unlike other statements in SCAT's testimony, this statement
is correct. As discussed above, SCAT's settlement was only made
enforceable in December 1999. Nevertheless, for more than 10 years,
SCAT has enjoyed the certainty and other benefits it has acquired from
its 1992 water settlement, a certainty that it seeks to deny to the
Community. At that time, SCAT ensured that it acquired a water supply
that is more reliable than other Indian tribes in Arizona can even hope
for. SCAT was able to accomplish this by keeping other interested
parties in the dark about its intentions and its negotiations until its
settlement was included as one of the last titles in largest
reclamation project legislation approved by Congress in decades. While
SCAT is now championing the virtues of inclusiveness in water
settlement negotiation, it did not even attempt to consult with the
Community in 1992 or consider the impact of its settlement on the
Community's efforts to assert claims to the Salt and Verde Rivers.
J. Gila River Indian Community's settlement CAP water will be
substantially used by non-Indians
Fact: SCAT fails to acknowledge that water leases are often an
integral component of Indian water rights settlements, including SCAT's
1992 settlement, where they serve a variety of purposes. For example,
in the Community's case, it is able to leverage CAP leases in exchange
for a greater supply of treated effluent from neighboring cities. Upon
close examination the leases and exchanges contemplated by the
Settlement Agreement all serve such dual purposes by increasing water
use efficiency and/or the reliability of the water provided to the
Community. SCAT itself has leased much of the CAP water it obtained
from its 1992 settlement to non-Indian parties.
L. When the CAP canal capacity is not enough to deliver all CAP water
orders, GRIC will be the last to be required to take a
reduction
Fact: This is simply incorrect. Paragraph 8.14 of the Settlement
Agreement, to which the statement by SCAT is directed, simply ensures
that GRIC's CAP water deliveries are not reduced based on delivery
capacity unless those of ``similarly located,'' CAP water users are
also reduced.
N. San Carlos Apache Tribe's Water Rights Settlement Act will likely be
impaired
Fact: At the September 30, 2003 joint hearing before the Senate
Energy and Natural Resources and Senate Indian Affairs Committees and
then before the Water and Power Subcommittee of the House Committee on
Resources the Acting Assistant Secretary for Indian Affairs, Aurene
Martin, was asked several times whether the Arizona Water Settlements
Act violated the federal government's trust responsibility to any
Indian tribe. She answered that it did not. The Acting Assistant
Secretary provided similar assurances to the House Water and Power
Subcommittee of the House Resources Committee.
O. San Carlos Apache Tribe's water supply from Gila River will be
further diminished by exchanges of CAP water for Gila River
water upstream of tribe's reservation
Fact: The Community has already shown that the UVD agreement will
decrease the amount of water used for irrigation in the upper Gila
valley. The Community also notes that all exchanges contemplated by the
Settlement agreement are subject to full federal environmental review
before they are approved by the Secretary. They must also be approved
by the Globe Equity Court. The Phelps Dodge agreement explicitly
prevents the Secretary from approving the lease/exchange until: ``All
Environmental Compliance has been completed relating to the United
States' execution of the Lease and Exchange Agreement and any
litigation relating to such Environmental Compliance is final and
subject to no further appeal.'' In addition, the entire Settlement must
be approved in a Special Proceeding before the Gila River Adjudication
Court. SCAT will have at least three opportunities to present evidence
about any impact associated with these exchanges. Finally, in an effort
to ensure that the SCAT current water supply is not simply preserved,
but improved both as to quality and quantity, the Community is working
actively with other parties to develop a mechanism to provide SCAT with
a direct delivery of Gila River water through a pipeline that avoids
the salinity of which SCAT complains.
P. San Carlos Apache Tribe's right to power generation benefits of its
power site at Coolidge Dam will be diminished
Fact: Any discussion about SCAT's claim of injury based on a loss
of electrical power is, of course, academic and speculative at this
juncture because no electricity is being produced.
With respect to SCAT's claim that it was inadequately compensated
for the construction of Coolidge Dam, this has no relevance to the
settlement of water rights disputes concerning the Gila River Indian
Community and Tohono O'odham Indian tribes. Whatever the merits of SCAT
claims, they only serve to create confusion about unrelated issues.
SCAT chose not to press for resolution of this issue when its 1992
settlement was before Congress, perhaps because it did not wish for
these issues to interfere with its efforts to enact a water settlement
It should not be entitled to interject these issues at this juncture,
at the expense of other Arizona Indian tribes.
IV. The GRIC Settlement (S. 437 and H.R. 885) Will Result in
Unprecedented Environmental Degradation to the Gila River System and
Source and to San Carlos Lake
A. The Gila River system and source as well as San Carlos Lake provide
some of the last remaining riparian habitat in Arizona, which
must be preserved to ensure the continued existence of many
sacred, rare, and federally listed animals and plants
1. The habitat of the Gila River and its tributaries.
Fact: Nothing in the Gila River Indian Water Rights Settlement Act
or Settlement Agreement contradicts the provisions of P.L. 101-628
establishing the Gila Box Riparian National Conservation Area.
2. The habitat of San Carlos Lake.
Fact: SCAT's assertions about San Carlos Lake mirror a series of
claims that were rejected by the U.S. District Court for Arizona in
July 2003. The court found that SCAT had not presented enough evidence
of any threats to threatened, endangered, or other species in San
Carlos Lake to merit any further consideration of its claims. The court
explicitly rejected SCAT's efforts to tie low lake levels to avian
botulism. ``[T]wo experts with 30 years experience treating injured and
diseased raptors, one expert working in Arizona since 1973, have never
encountered botulism in Bald Eagles and both stated that Bald Eagles
would not likely be impacted by this disease.'' SCAT v. United States,
2003 WL 21697724 (2003 D.Ariz.)
B. The act and agreement will destroy the flows in the Gila River
watershed and contaminate its flows through the discharge of
treated effluent
Fact: Re-use of highly treated effluent by putting it back into
river systems is a recognized mechanism for efficient water use,
particularly in water-short areas such as Arizona. Any discharges of
such effluent will be governed by both federal and state law, and
cannot therefore be characterized as a contaminating pollutant.
Exchanges with Phelps Dodge, ASARCO and New Mexico can only occur
after environmental compliance and then only in accordance with Article
XI of the Globe Equity Decree.
``The Apache Tribe objects to the SCIDD proposal which cannot
fulfill the United States' trust responsibility to the Apache Tribe to
preserve and protect San Carlos Lake.'' (p. 31)
Fact: In July 2003, the U.S. District Court for Arizona addressed
each of SCAT's claims that the operation of San Carlos Reservoir and
the failure to provide a minimum storage pool breached the federal
government's trust obligation to SCAT. The court rejected each of
SCAT's allegations, including the allegation that the operation of the
dam violates federal laws for the protection of archeological and
cultural resources. The court found that SCAT had simply not presented
evidence that there was any factual or legal basis to require the
government to maintain the minimum project pool. In clear terms, there
is no trust responsibility to maintain a minimum lake level.
V. The GRIC Settlement Expressly Exempts Itself From Compliance With
the National Environmental Policy Act and Contains Broad and Sweeping
Environmental Waivers
A. Exemption from NEPA compliance
Fact: SCAT is well-aware that this provision is included in all
Indian water rights settlements. For example, it was included in the
San Carlos Apache Water Rights Settlement Act of 1992 (3709(a), P.L.
102-575).
B. The GRIC settlement requires the United States to execute broad
waivers and releases for past, present, and future
environmental harms
Fact: SCAT's comments purposefully ignore the limitations on the
scope of the claims the United States will not assert pursuant to
207(c). The only claims the government agrees that it will not pursue
are those claims enumerated in 207(a). These are claims that only
involve the interests of the Community, its members, and its members as
allottees.
VII. The GRIC Settlement Act Creates a ``Template'' for the Loss of
Tribes' Federal Reserve Water Rights for Lands Transferred Into Trust
Fact: Indian land and water settlements frequently contain
provisions that address or place constraints on future tribal
acquisitions of land or water. SCAT has no objection to similar
provisions in the Zuni Water Settlement (P.L. 108-34) or in Title III
of the Arizona Water Settlements Act.
IX. Globe Equity Decree-Rights of the San Carlos Apache Tribe
A. Federal Globe Equity No. 59 Consent Decree
1. The San Carlos Apache Tribe has federal reserved and aboriginal
water right claims pending in the Gila River general stream
adjudication for additional water rights to the mainstem of the Gila
River which could affect the Globe Equity No. 59 Decree.
Fact: As the testimony before the Committee explained, nothing in
the Arizona Water Settlements Act impedes SCAT's effort to assert its
reserved water rights claims, just as the Community accepts that SCAT
could and did reach settlements with parties asserting claims adverse
to the Community's reserved rights claims through the 1992 SCAT
settlement legislation. The Community's settlement also preserves
SCAT's ability to object to any provision in its settlement in federal
and state court before the Community's settlement would become
effective. It also preserves SCAT's ability to object in court as to
any of the possible exchanges contemplated by the Community's
settlement.
2. The Globe Equity No. 59 Court has entered a water quality
injunction against the Gila Valley and Franklin Irrigation District to
ensure that the San Carlos Apache Tribe receives that quality of water
necessary to cultivate moderately salt-sensitive crops.
Fact: Nothing in the Community's settlement framework interferes
with the water quality injunction, which, as discussed above, concerns
only salinity from within the Gila River Valley.
3. Standard for construing the Globe Equity Decree.
4. Previous rulings by the Globe Equity Court and the Ninth Circuit
confirm that UVD pumping is ``covered'' by the decree.
The Community has no specific comments on these sections of SCAT's
testimony, which recite SCAT's interpretation of certain laws and court
rulings. SCAT's generalized views on these topics are simply not
relevant to the Committee's consideration of the Arizona Water Rights
Settlements Act. As noted above, because SCAT retains all its existing
rights and claims, it can vigorously pursue the enforcement of such
rights and claims using such interpretations as a basis for its
actions.
B. The Arizona Gila River General Stream Adjudication
1. The San Carlos Apache Tribe has unadjudicated federal reserved
and aboriginal water right claims to waters of the mainstem and
tributaries of the Gila River in the Arizona Gila River General Stream
Adjudication.
Fact: Under the Arizona Water Settlements Act, the Community will
not seek to increase the reserved rights available to it in the Gila
River. Nothing in the proposed legislation interferes with SCAT's right
or ability to attempt to increase its reserved rights through
litigation or separate settlement.
______
Statement submitted for the record by Keno Hawker, Mayor,
City of Mesa, Arizona
Chairman Calvert and members of the Subcommittee; as the Mayor of
the City of Mesa, Arizona, I appreciate the opportunity to submit this
testimony in support of H.R. 885. The City of Mesa provides water
service to approximately 435,000 people in four cities and across two
counties. The importance of H.R. 885 to Mesa, its customers, and other
water users throughout Arizona cannot be underestimated.
You will hear a great deal of testimony about the benefits of the
Arizona Water Settlements Act. You will hear talk of the stability,
certainty in water resources planning, cessation of costly litigation,
and reduced CAP repayment obligation that the settlement brings to the
State of Arizona. You will hear of the benefits the settlement brings
to the federal government, including an increased share of CAP water
that can be used by the federal government to meet its trust
responsibilities towards the many Native American communities within
Arizona. The City of Mesa shares in these important benefits and values
them greatly, but I want to emphasize the value of some of the unique
benefits that the City of Mesa in particular realizes from this Act.
Through this settlement and its enabling legislation, Mesa will
receive an additional allocation of 7,115 acre-feet per year of CAP M&I
priority water that is vital to ensuring Mesa's sustainable growth and
development. Mesa also will gain the option to lease Gila River Indian
Community CAP water in the future, again adding to the pool of water
Mesa can use for its future.
Most importantly, however, the City of Mesa is undertaking a water
exchange with the Gila River Indian Community. Mesa will deliver 29,400
acre-feet per year of high quality reclaimed water to the reservation
boundary and in exchange will receive 23,530 acre-feet of CAP water
that Mesa can use in its potable system. This exchange is essential to
the City of Mesa. The exchange affords Mesa the opportunity to
efficiently convert what is a non-drinking water source into a drinking
water resource that can be used to meet growing municipal and
industrial demands. The exchange allows the Gila River Indian Community
to increase the size of its water budget and use this high quality
water for agricultural purposes at a very low price. Mesa has a history
of partnership with its neighbor the Gila River Indian Community in the
redevelopment of what was Williams Air Force Base, and strongly values
the opportunity to partner again with the Community in a project that
can bring so many benefits to both communities. The proposed reclaimed
water exchange allows both entities to manage water in a regional,
conjunctive, and efficient manner that brings great benefits to the
residents of both communities.
For these reasons and others, the City of Mesa strongly endorses
the Arizona Water Rights Settlements Act and urges your support of H.R.
885.
Thank you for the opportunity to provide written testimony.
______
Statement submitted for the record by Douglas Mason, General Manager,
San Carlos Irrigation and Drainage District, Coolidge, Arizona
Chairmen Calvert and Members of the Subcommittee, the San Carlos
Irrigation and Drainage District (District) is pleased to submit this
testimony supporting the enactment of H.R. 885, the Arizona Water
Settlements Act. Our support for enactment reflects the efforts of many
parties that have collaborated to bring this settlement to the point
where the Congress can consider enactment of the authorizing
legislation. Of particular note are the efforts of the Arizona
Congressional delegation, who have been instrumental in bringing the
parties together to structure innovative solutions to what had been
considered to be intractable disputes.
Although the broad fabric of the Settlement is complete, two areas
continue to be completed through ongoing negotiations. These include:
(1) finalization of arrangements for water users in New Mexico to use
the 18,000 acre-feet per year of Central Arizona Project water that was
promised in the 1968 Colorado River Basin Project Act; and (2)
completion of agreement language defining the rights of water users in
the Upper Gila River valleys near the communities of Duncan and Safford
in western New Mexico and eastern Arizona. This District is
participating in those discussions. With conclusion of those two items
and any necessary conforming changes to the Settlement Agreement and
the legislation, the Bill will be ready for enactment.
From the perspective of this District, the Settlement accomplishes
important objectives. They include:
1. Resolves decades of difficulties between District farmers and
members of the Gila River Indian Community (Community) over how the
Gila River water rights shared by the District and the Community are
managed; this is accomplished by restructuring and simplifying how San
Carlos Irrigation Project (Project) water is divided;
2. Vests in the District and the Community, through a Joint
Control Board, operation and maintenance responsibility for the Project
irrigation water delivery facilities;
3. Provides for the rehabilitation of Project irrigation water
delivery facilities using moneys available in the Lower Colorado River
Basin Development Fund that is to be made available through contracts
between (1) the United States and the Community and (2) the United
States and the District;
4. Provides that the District will use its available contracting
authorities and workforce to cost-effectively complete the
rehabilitation of all District and most Project Joint Works facilities;
5. Provides that 8,000 acre-feet per year of water conserved
through rehabilitating District facilities will be made available to
maintain a sustainable water supply for a minimum Project fish and
wildlife pool in the San Carlos Reservoir;
6. Provides an option for the United States to use, for a future
water rights settlement with the San Carlos Apache Tribe, an average of
10,000 acre-feet per year of water conserved through rehabilitating
District facilities; and.
7. Provides that the District will assume the obligation to repay
that portion of District facility rehabilitation costs that are
associated with the net new conserved water supplies received by the
District and, further, provides that remaining costs will be non-
reimbursable because the beneficiaries of those investments are tribal
entities and fish and wildlife resources.
In conclusion, the San Carlos Irrigation and Drainage District
supports enactment of H.R. 885 because it resolves historical disputes
and establishes mechanisms where future disagreements can be resolved
among the local interested parties without needing to involve the
United States in such management decisions.
Along with myself, our General Counsel, Riney B. Salmon II, and our
Engineering Consultant, Michael J. Clinton, will attend the Committee
Hearing. We would be pleased to address any questions that arise about
District participation in the Arizona Water Settlements Act and the
associated Settlement Agreement.
Thank you for considering this testimony.
______
[A letter submitted for the record by the City of Payson,
Arizona, follows:]
[GRAPHIC] [TIFF OMITTED] T9653.001
Statement submitted for the record by George Renner, President, Board
of Directors, Central Arizona Water Conservation District
Chairman Calvert and Members of the Subcommittee, the Central
Arizona Water Conservation District is pleased to offer the following
testimony regarding H.R. 885, the Arizona Water Settlements Act.
The Central Arizona Project or ``CAP'' was authorized by the 90th
Congress of the United States under the Colorado River Basin Project
Act of 1968 (Basin Project Act). The CAP is a multi-purpose water
resource development project consisting of a series of canals, tunnels,
dams, and pumping plants that lift water nearly 3,000 feet over a
distance of 336 miles from Lake Havasu on the Colorado River to the
Tucson area. The project was designed to deliver the remainder of
Arizona's entitlement to Colorado River water into the central and
southern portions of the state for municipal and industrial,
agricultural, and Indian uses. The Bureau of Reclamation (Reclamation)
initiated project construction in 1973, and the first water was
delivered to central Arizona in 1985. In 2000, CAP delivered its full
normal year entitlement of 1.5 million acre-feet for the first time,
allowing Arizona to utilize its full Colorado River apportionment of
2.8 million acre-feet.
CAWCD was created in 1971 for the specific purpose of contracting
with the United States to repay the reimbursable construction costs of
the CAP that are properly allocable to CAWCD, primarily non-Indian
water supply and commercial power costs. In 1983, CAWCD was also given
authority to operate and maintain completed project features. CAWCD's
service area is comprised of Maricopa, Pima, and Pinal counties, and
includes the state's major metropolitan areas of Phoenix and Tucson.
CAWCD is a tax-levying public improvement district, a political
subdivision and a municipal corporation, and represents roughly 80% of
the water users and taxpayers of the State of Arizona. CAWCD is
governed by a 15-member Board of Directors elected from the three
counties it serves. CAWCD's Board members are public officers who serve
without pay.
Project repayment is provided for through a 1988 Master Repayment
Contract between CAWCD and the United States. Reclamation declared the
CAP water supply system (Stage 1) substantially complete in 1993, and
declared the regulatory storage stage (Stage 2) complete in 1996. No
other stages are currently under construction. Project repayment began
in 1994 for Stage 1 and in 1997 for Stage 2. To date, CAWCD has repaid
$685 million of CAP construction costs to the United States.
In 2000, CAWCD and Reclamation successfully negotiated a settlement
of their $500 million dispute regarding the amount of CAWCD's repayment
obligation for CAP construction costs. That dispute had been the
subject of ongoing litigation in United States District Court in
Arizona since 1995. The settlement includes a number of conditions that
must be satisfied before it will become final, including completion of
Indian water rights settlements for the Gila River Indian Community and
Tohono O'odham Nation. Several of those conditions are addressed in
H.R. 885.
Title 1--Central Arizona Project Settlement Act
Title 1 of H.R. 885 resolves a long-standing dispute between the
United States and the State of Arizona regarding the allocation of CAP
water. Title 1 also provides the water supplies and funding source that
are necessary to complete Indian water rights settlements for the Gila
River Indian Community (Title 2), the Tohono O'odham Nation (Title 3),
and other Arizona tribes.
CAP WATER FOR INDIAN SETTLEMENTS
Congress authorized the Central Arizona Project for the stated
purposes of reducing groundwater overdraft, maintaining as much of
central Arizona's irrigated agriculture as possible, and providing
additional water for future municipal and industrial use. H.R. Rep. No.
1312, 90th Cong., 2d Sess. 55 (1968). There is scant mention of any
intended CAP benefits for Indian tribes in the legislative history of
the Basin Project Act.
Nevertheless, by 1983 the Secretary of the Interior (Secretary) had
allocated 309,828 acre-feet of CAP water to Indian tribes and entered
into long-term contracts with tribes for much of that supply. That
represented about 22 percent of the anticipated annual CAP supply.
Arizona Indian water rights settlements completed since 1983 have
increased the amount of CAP water allocated to Indian tribes and
decreased the amount available for non-Indian use. Presently, 453,224
acre-feet of CAP water--32 percent of the CAP supply--is under contract
to Indian tribes or dedicated for use in Indian settlements.
The Arizona Water Settlement Agreement (Agreement) among the United
States, CAWCD and the Arizona Department of Water Resources, which
would be ratified by H.R. 885, would make an additional 214,500 acre-
feet of CAP water available for use by Indian tribes. Most of this
additional water would come from non-Indian agricultural water users. A
total of 293,795 acre-feet of non-Indian agricultural CAP water is
being sought under the Agreement. Two-thirds of this water would be
used to facilitate pending and future Indian water rights settlements;
one-third would go to the State of Arizona for future municipal and
industrial use.
With the additional water provided under the Agreement, a total of
667,724 acre-feet of CAP water--47 percent of the total CAP supply--
would be available for Indian use. H.R. 885 provides that this division
of the CAP supply is final. This is a key element of the settlement
legislation for non-Indian CAP water users. Some have suggested that
even more CAP water should be allocated for Indian use, but any change
in the division of CAP water from that reflected in H.R. 885 would
require amendment of both the Agreement and the CAP repayment
settlement. CAWCD is a party to both of those agreements, and CAWCD
will not accede to any further reduction in the non-Indian CAP supply.
No central Arizona Indian tribe has a Winters right claim to CAP
water, and the rights of mainstream tribes to Colorado River water were
adjudicated in Arizona v. California. Nevertheless, under H.R. 885 the
Secretary would have a pool of 67,300 acre-feet of CAP water to use in
future Arizona Indian water rights settlements. That is the only CAP
water that will be available for future Indian settlements.
Accordingly, it is imperative that the Secretary only be permitted to
reallocate this water as part of a final Indian water rights
settlement, as provided in section 104(b) of H.R. 885.
As noted, the CAP water to be reallocated under H.R. 885 would come
from non-Indian agriculture. Non-Indian agricultural water users with
long-term contract entitlements to CAP water will be encouraged to
permanently relinquish their long-term rights to CAP water. As partial
compensation, the Agreement provides that the non-Indian agricultural
contractors would be relieved from the federal debt they incurred under
section 9(d) of the Reclamation Project Act of 1939. (Those contractors
would remain responsible for repaying any private bond debt.)
Collectively, their 9(d) debt totals more than $158 million. Under the
Agreement, CAWCD will pay about $85 million of that debt and the United
States will forgive $73.5 million. Section 106 of H.R. 885 makes the
9(d) debt that the United States has agreed to forgive non-reimbursable
and non-returnable.
Section 106 also exempts land within the CAP service area from the
Reclamation Reform Act and any other acreage limitation or full cost
pricing provision of federal law. The Central Arizona Project was
constructed to provide a renewable water supply to agriculture to
alleviate the significant groundwater overdraft in central Arizona. By
limiting the agricultural lands that may receive CAP water, the
Reclamation Reform Act operates to increase groundwater pumping in
central Arizona. Thus, the exemption in section 106 is appropriate to
help the CAP achieve its mission. This exemption also satisfies a
condition to the relinquishment of the CAP non-Indian agricultural
entitlements.
Title 1 also prohibits the transfer or use of any CAP water outside
the State of Arizona, except in the context of the interstate water
banking program already established under regulations adopted by the
Secretary. Title 1 also directs the Secretary to reallocate 65,647
acre-feet of currently uncontracted CAP M&I water to M&I water
providers in Arizona. Both of these provisions are essential to CAWCD
and its water users.
FUNDING--FOR INDIAN WATER RIGHTS SETTLEMENTS
To provide a funding source for Indian water rights settlements,
Title 1 amends section 403(f) of the Basin Project Act to allow
additional uses of certain funds deposited into the Lower Colorado
River Basin Development Fund (Fund). The Fund is a separate fund within
the U.S. Treasury established by Congress under the Basin Project Act,
which authorized construction of the CAP. Revenues deposited into the
Fund come from a number of sources, including: the sale of power from
the Navajo Generating Station that is surplus to CAP pumping needs; a
surcharge on power sold in Arizona from Hoover Dam and (beginning in
2005) Parker and Davis Dams; and other miscellaneous revenues from
operation of the CAP. Under existing law and contract, these revenues
are paid each year to the general fund of the Treasury to return the
CAP construction costs that are reimbursable by CAWCD. To the extent
that Fund revenues are insufficient to meet CAWCD's annual repayment
obligation, CAWCD makes up the difference with a cash payment to the
United States, which is also deposited into the Fund.
Title 1 does not affect the collection and deposit of revenues to
the Fund. Nor does it affect CAP repayment or alter CAWCD's obligation
to make cash payments sufficient to meet its annual repayment
obligation for the CAP. Under Title 1, monies in the Fund will still be
credited first against CAWCD's annual repayment obligation. But instead
of being returned to the general fund, those funds may also be used
each year, without further appropriation, to pay certain costs of
delivering CAP water to Indian tribes, constructing distribution
systems to deliver CAP water to Indian tribes, and other costs
authorized under Titles 2 and 3 of H.R. 885.
Title 2--Gila River Indian Community Water Rights Settlement Act
Title 2 authorizes, ratifies and confirms a settlement of the water
rights claims of the Gila River Indian Community (Community) that has
been more than a decade in the making. This agreement is a significant
step forward for Arizona that will settle longstanding litigation over
the Community's water rights and provide much-needed certainty for
state water management.
Of particular importance to CAWCD, Title 2 prohibits the lease,
exchange, forbearance or transfer of CAP water in any way by the
Community for use outside the State of Arizona.
Title 3--Southern Arizona Water Rights Settlement Amendments Act
Title 3 resolves remaining disputes related to the Southern Arizona
Water Rights Settlement Act, which was enacted by Congress in 1982 to
settle the water rights claims of the Tohono O'odham Nation (Nation).
Like the Community in Title 2, the Nation is expressly prohibited from
leasing, exchanging, forbearing or transferring any of its CAP water
for use outside the State of Arizona.
Conclusion
CAWCD strongly supports H.R. 885 as introduced. This legislation
represents the culmination of years of effort by central Arizona water
users in an open and inclusive process to resolve Indian water rights
claims by negotiation rather than litigation. Passage of H.R. 885 will
help bring closure to many longstanding disputes involving Arizona's
water supplies.
______
Statement submitted for the record by The Honorable Skip Rimsza,
Mayor, City of Phoenix, Arizona
Chairman Calvert and Members of the Subcommittee:
The City of Phoenix, an incorporated municipality within Maricopa
County, Arizona, greatly appreciates the opportunity to offer testimony
in support of the Arizona Water Settlements Act, H.R. 885, which
settles the long-standing water rights claims of the Gila River Indian
Community and disputes over water allocations and costs of the Central
Arizona Project. The Settlement Act provides many benefits to Arizona
Indian tribes, the federal government, the State of Arizona and the
City of Phoenix, both directly and indirectly.
The linchpin of the Act is Title I, the Central Arizona Project
Settlement. Title I settles disputes between the federal government and
the State of Arizona over repayment obligations for the Central Arizona
Project (CAP). It also divides CAP water between state and federal
purposes. Most importantly, it provides a framework for the Gila River
Indian Community Water Rights Settlement and future Indian water rights
settlements in Arizona by providing funding sources and identifying
water supplies that can be used to fill water budgets for those
settlements. It also insures that precious Colorado River water will
remain within the State and be used for the benefit of its citizens.
The State, Indian tribes and federal government all reap rewards from
settlements.
Title I provides for long-term contractual commitments of CAP water
to be capped at 1,415,000 acre-feet with 667,724 acre-feet going to
Arizona Indian Tribes and the federal government. The remainder of the
entitlement, 747,246 acre-feet goes to the State and non-Indian water
users. The split of this entitlement is used as the basis of the
State's repayment obligation for the Central Arizona Project. Agreement
between the State of Arizona, the federal government and Arizona Indian
tribes on this point is a major accomplishment that only could have
come to closure in the context of the overall settlement package
authorized in this bill.
The reallocation to Arizona's Municipal and Industrial CAP water
users in the amount of 65,500 acre-feet has been a hotly debated issue
between water users in the State of Arizona, the federal government and
Arizona Indian Tribes. Title I provides that the City of Phoenix shall
receive 8,206 acre-feet of CAP water from this pool. The City will pay
over $500,000 in back capital charges to the Central Arizona Water
Conservation District (CAWCD) when that reallocation is finalized. This
is a critical component of the Arizona Water Settlements Act for the
City of Phoenix. Other important provisions include the extension of
the City's CAP subcontract for an additional 100 years, recognition
that the contract is for permanent service and the creation of a
formula for sharing CAP water between federal and non-federal water
users in the event a shortage of Colorado River water for the Lower
Basin States is declared. The City is not alone in the receipt of these
benefits; they are available to all CAP subcontractors within Arizona.
The identification of water supplies for Arizona Indian tribes now,
in the case of the Gila River Indian Community (Community) and in the
future for Indian Tribes with unfulfilled water rights claims, will
benefit tribes, the federal government and the State of Arizona. The
ability to facilitate settlement of these claims is critical to the
continued vitality of the State. Settlement of these claims will
provide certainty and will avoid costly and protracted legal battles
over water resources. Perhaps the most important provision of the
entire bill is Section 107 of the Act which: (1) amends the Colorado
River Basin Project Act to allow for revenues deposited into the Lower
Colorado River Basin Fund to be credited against the repayment
obligation for the Central Arizona Project; (2) provides funding for
the Gila River Indian Community and the Tohono O'Odham Nation
settlements; (3) allows the federal government to meet its obligations
to fund Indian tribes' operation and maintenance costs for CAP water
deliveries to tribes; (4) provides funds for construction of critical
water delivery infrastructure for Indian tribes; and (5) creates a
mechanism to fund future Indian water settlements. This part of the Act
provides an enormous collective benefit to the tribes, the federal
government and for the State of Arizona and is an example of the
forward thinking that went into the settlement package.
Title II, the Gila River Indian Community Water Rights Settlement,
is the culmination of many years of intensive negotiations. The
settlement is fair and equitable for the GRIC, the State of Arizona,
the federal government and local municipal, corporate, agricultural,
and private parties and was achieved only with tremendous amounts of
give-and-take on all sides. The Indian Community is a reservation of
over 350,000 acres located within Maricopa and Pinal Counties. The
reservation is located immediately south of the City of Phoenix and
shares a common border with the City of Phoenix of approximately
twenty-two miles in length. It is the city's largest neighbor in terms
of land area. The City of Phoenix has a population of over 1.4 million
people. This settlement agreement has many benefits for both the Gila
River Indian Community and the City of Phoenix. The success of the
settlement negotiations has also opened up many doors between the two
communities on other important issues as well, and successful passage
of the Water Settlement Agreement and implementation of the settlement
agreement will further enhance future cooperative efforts between the
Gila River Indian Community and the City of Phoenix.
To provide some background to the settlement, the City and the Gila
River Indian Community have been engaged in longstanding disputes over
the rights to Arizona's most scarce and precious natural resource,
water. The City and the Community are not alone in this regard. These
disputes involve significant claims to water by surrounding cities and
towns, the State of Arizona and the federal government. The settlement,
which the City helped craft provides resolution for all these claims in
a fair and equitable manner to all parties, including the federal
government.
The nature and extent of the disputes deserves some explanation.
The Indian Community primarily sits astride the Gila River. A portion
of the Community also sits along the Salt River, a primary tributary to
the Gila River. The Community contends that it has been denied by its
neighbors, as well as by the actions and inactions of the federal
government, to its fair share of the surface waters of the Gila River.
More importantly to Phoenix, the Community claims that its fair share
of the Salt River has been negatively impacted as well. For many years,
the City of Phoenix has relied upon its water rights to the Salt River
and its tributaries, through deliveries by the Salt River Project, for
over 60% of its total water supplies.
The Community also claims that its groundwater resources have also
been unduly impacted by pumping that occurs off the reservation.
Numerous lawsuits against parties in the State, including Phoenix, have
been filed by the Community and by the federal government on behalf of
the Community.
Without this legislation the settlement will not become effective,
and the parties including the federal government, will be forced to
continue to litigate their disputes in court. A general stream
adjudication to the rights of the Gila River and all its tributaries,
the Gila River Adjudication, has been underway in Arizona since the
1970's. Without this bill the Community, the federal government and
thousands of state parties will continue to have to assert and defend
their claims in an expensive and lengthy process. This settlement
solves that problem as well.
There is a clear need for settlement of all these disputes. This
settlement is appropriate and it is fair to all parties including the
federal government and the Indian Community. All parties have been well
represented in negotiating it. The City of Phoenix, for its part, has
given up some of its Salt River water supplies, for the benefit of the
GRIC. The City will also lease 15,000 acre-feet per year of the
Community's CAP water supply at an up-front cost of over $20,000,000.
Congressional authority for the Community to lease its water is
necessary and that authority is contained in this bill. Phoenix's
contributions to the settlement package are significant as are the
contributions of the other parties in Arizona. Reciprocal waivers of
claims between the Community, the federal government and the City of
Phoenix and other state parties are also a key part of this legislation
and are a vital component of the settlement.
In summary, the City of Phoenix believes the Arizona Water
Settlement Act is a fair, equitable and cost-effective solution for the
settlement of financial and water claims for the benefit of the State
of Arizona and its citizens, Arizona Indian tribes and the federal
government and urges its enactment.
______
Statement submitted for the record by John F. Sullivan, Associate
General Manager, Water Group, Salt River Valley Water Users Association
and Salt River Project Agricultural Improvement and Power District, on
H.R. 885
Chairman Calvert, and members of the Subcommittee:
Thank you for the opportunity to submit testimony in support of
H.R. 885, the Arizona Water Settlements Act. My name is John F.
Sullivan. I am the Associate General Manager, Water Group, of the Salt
River Project (``SRP''), a large multi-purpose federal reclamation
project embracing the Phoenix, Arizona metropolitan area. SRP is
composed of the Salt River Valley Water Users' Association
(``Association'') and the Salt River Project Agricultural Improvement
and Power District (``District''). Under contract with the federal
government, the Association, a private corporation authorized under the
laws of the Territory of Arizona, and the District, a political
subdivision of the State of Arizona, provide water from the Salt and
Verde Rivers to approximately 250,000 acres of land in the greater
Phoenix area. Over the past century, most of these lands have been
converted from agricultural to urban uses and now comprise the core of
metropolitan Phoenix.
The Association was organized in 1903 by landowners in the Salt
River Valley to contract with the federal government for the building
of Theodore Roosevelt Dam, located some 80 miles northeast of Phoenix,
and other components of the Salt River Federal Reclamation Project. SRP
was the first multipurpose project approved under the Reclamation Act
of 1902. In exchange for pledging their land as collateral for the
federal loans to construct Roosevelt Dam, which loans have long since
been fully repaid, landowners in the Salt River Valley received the
right to water stored behind the dam.
In 1905, in connection with the formation of the Association, a
lawsuit entitled Hurley v. Abbott, et al., was filed in the District
Court of the Territory of Arizona. The purpose of this lawsuit was to
determine the priority and ownership of water rights in the Salt River
Valley and to provide for their orderly administration. The decree
entered by Judge Edward Kent in 1910 adjudicated those water rights
and, in addition, paved the way for the construction of additional
water storage reservoirs by SRP on the Salt and Verde Rivers in Central
Arizona.
Today, SRP operates six dams and reservoirs on the Salt and Verde
Rivers in central Arizona, as well as 1,300 miles of canals, laterals,
ditches and pipelines, groundwater wells, and numerous electrical
generating, transmission and distribution facilities. The six SRP
reservoirs impound runoff from a 13,000-square mile watershed. The
water stored in these reservoirs is delivered via SRP canals, laterals
and pipelines to municipal, industrial and agricultural water users in
the Phoenix metropolitan area. SRP also operates approximately 250 deep
well pumps to supplement surface water supplies available to the
Phoenix area during times of drought. In addition, SRP provides power
to nearly 800,000 consumers in the Phoenix area, as well as other rural
areas of the State.
SRP holds the rights to water stored in its reservoirs, and for the
downstream uses they supply, pursuant to the state law doctrine of
prior appropriation, as well as federal law. Much of the water used in
the Phoenix metropolitan area is supplied by these reservoirs.
SRP fully supports the enactment of H.R. 885 in its entirety.
However, my testimony, offered today on SRP's behalf, is specifically
directed to Title II of the bill, authorizing the Gila River Indian
Community Water Rights Settlement.
The Gila River Indian Reservation was created by an Act of Congress
in 1859 and was enlarged by seven separate Executive Orders in 1876,
1879, 1882, 1883, 1911, 1913 and 1915. Currently, the Reservation
encompasses approximately 377,000 acres of land in central Arizona.
Most of the lands within the Reservation are located within the Gila
River watershed. The water rights appurtenant to these lands are
subject to a consent decree entered by the United States District Court
in 1935. The 1935 ``Globe Equity Decree'' adjudicated the rights to
water from the main stem of the Upper Gila River above its confluence
with the Salt River. The Decree entitles the United States, on behalf
of the Indians of the Gila River Reservation, to divert 300,000 acre-
feet of water annually from the Gila River. Historically, however, the
Indian Community has received, on average, only about 100,000 acre-feet
annually of its decreed entitlement, due to insufficient flows in the
Gila River at the Reservation's diversion point.
A small portion of the Gila River Indian Reservation lies within
the Salt River watershed, west of Phoenix and several miles downstream
from SRP's reservoirs. Many of these lands were added to the
Reservation in 1879. At that time, a group of Indians, commonly
referred to as the Maricopa Colony, was living there. Since some time
prior to 1900, these Indians diverted water from the Salt River for the
irrigation of approximately 1,000 acres.
In 1901, the federal government, acting on behalf of the Maricopa
Indians, brought suit in Arizona territorial court to stop nearby non-
Indian irrigators from interfering with the waters used by the Indians.
Some of the defendants named in the suit later became shareholders of
the Association, after its incorporation in 1903. On June 11, 1903,
Judge Kent issued the decree in United States v. Haggard, which
adjudicated the Maricopa Indians' right to irrigate approximately 1,080
acres of land with water from the Salt River. In 1917, the Haggard
decree was incorporated into the Benson-Allison decree, which also
adjudicated water rights for lands not included in the original decree,
located near the confluence of the Salt and Gila Rivers.
Other than the approximately 1,080 acres irrigated by the Maricopa
Colony, and included in the Haggard and Benson-Allison decrees, no
lands on the Gila River Indian Reservation have ever been directly
irrigated using Salt River water. Despite this fact, in the mid-1980s,
the Gila River Indian Community asserted claims for the Reservation in
the pending Gila River Adjudication to approximately 1.8 million acre-
feet of water annually from the Salt, Verde and Gila Rivers. More
recently, the Indian Community amended its claims and now asserts the
right to more than 2.7 million acre-feet of water annually from the
Gila River, its tributaries and groundwater. These claims, which far
exceed the combined annual flow of all of these rivers, are based on
the federal reservation of rights doctrine and largely encompass
potential future uses of water by the Indian Community on its
Reservation.
Thus far in the Adjudication, the Community's attempts to prosecute
its extremely large claims to the Salt and Gila Rivers have not met
with success. The Superior Court in the adjudication recently concluded
that the Community and the United States are estopped by a decision of
the United States Court of Claims, entered decades ago, from asserting
any claim to the Salt River other than for the 1,490 acres within the
Maricopa Colony. An earlier decision of the Superior Court would limit
Reservation lands within the Gila River watershed to their decreed
entitlement under the Globe Equity Decree. The Indian Community and the
United States have appealed both of these decisions of the trial court,
and the Arizona Supreme Court is presently considering whether to
accept review of these decisions. In the absence of the Settlement
before this Subcommittee today, the matter is likely to continue in
litigation for some time. In the meantime, the uncertainty associated
with the potential magnitude of the Community's rights to water from
the Salt and Verde Rivers poses a threat to the rights of existing
appropriators, including SRP.
In order to alleviate this uncertainty and assure the dependability
of water supplies to the more than 3 million residents of Maricopa
County in central Arizona, SRP initiated water settlement negotiations
with the Indian Community and the United States in 1989. Over time,
neighboring water users joined the negotiations, which were often
complex and difficult. Fourteen years later, the Indian Community, the
United States and local interests including SRP, spurred on by the
leadership of Senator Kyl and former Secretary Babbitt, have reached a
comprehensive settlement of the Community's water rights claims,
benefiting water users throughout the Gila River Basin, in Maricopa,
Pinal and Yavapai Counties. The settlement is embodied in the
Settlement Agreement and legislation before this Subcommittee today.
The Settlement resolves all outstanding water-related litigation
between the Gila River Indian Community and the other settling parties
and settles, once and for all, the water rights of the Indian Community
to surface water and ground water in the Gila River Basin. I have
attached a summary of the components of the Settlement to my written
testimony. However, a few important points, pertaining to the
Community's use of Salt and Verde River water, will be discussed here.
First. The Settlement recognizes the right of the United States,
the Community, its members and allottees under the Haggard Decree, as
modified by the Benson-Allison Decree, to 540 miners inches of water
from the Salt River. The Settlement also confirms that such rights
shall be deemed fully satisfied by SRP's performance of its water
delivery obligations under the Contract between the United States and
the Salt River Valley Water Users' Association dated May 5, 1936, as
amended. This Contract, commonly referred to as the Maricopa Contract,
provides that SRP shall make available 5,900 acre-feet of water per
year for diversion and use on Reservation lands with rights under the
Haggard Decree, as modified by the Benson-Allison Decree.
Second. Under the Settlement, the Community also shall have an
annual entitlement to SRP stored water in an amount varying from zero
to 35,000 acre-feet, depending on SRP reservoir storage levels on May 1
of each year. The water will be transported to the Reservation via
SRP's water delivery system, subject to certain delivery system
capacity limitations specified in the Agreement. Water that is credited
to the Community on May 1 of each year, but is not used by April 30 of
the following year, may be carried over in storage for the Community's
subsequent use, up to a maximum amount, specified in the Agreement,
which may not be exceeded at any time. Moreover, in any single year,
the Community will not be entitled to order more than 45,000 acre-feet
total from the current year's entitlement and the Community's
entitlement to ``carry over'' water from prior years. The Community
will pay for the delivery of SRP stored water at 100 percent of the
cost per acre-foot of stored water for SRP shareholders. The
Community's entitlement to SRP stored water will be phased in over a
period of five-years, commencing in the year that the Settlement
becomes enforceable.
Third. Subject to certain monthly and annual volume limitations,
SRP has agreed to take delivery of CAP water to which the Community is
entitled for use by SRP shareholders, in exchange for the storage of
the same amount of Salt and Verde River water in SRP reservoirs for
eventual use by the Community. This exchange is subject to the ability
of SRP to divert and beneficially use the CAP water to which the
Community is entitled. SRP will deliver exchange water ordered by the
Community via the SRP water delivery system only after determining that
the system capacity is not needed to fulfill water delivery obligations
of SRP that predate the Settlement.
Fourth. SRP has agreed to accept delivery of CAP water to which the
Community is entitled for direct delivery to the Reservation, via SRP's
water delivery system. The direct delivery of this water to the
Community also will be subject to the limits of SRP's water delivery
system capacity, as discussed in the previous paragraph.
Fifth. Phelps Dodge Corporation has offered to transfer to SRP its
right, title and interest in Blue Ridge Reservoir, including all rights
to water developed by operation of the reservoir. If SRP accepts Phelps
Dodge's offer, and the transfer of water rights to SRP is accomplished
under Arizona law, then SRP will provide to the Community a portion of
the water stored behind Blue Ridge Reservoir, ranging from zero to 836
acre-feet annually, depending on reservoir storage levels in Blue Ridge
on May 1 of each year. Water that is credited to the Community on May 1
of each year, but is not used by April 30 of the next year will not be
available for the Community's use in subsequent years. If SRP accepts
Phelps Dodge's offer and obtains the right to water stored in Blue
Ridge, there also may be an opportunity for municipalities in water
scarce areas of Gila County, Arizona, to enter into agreements with SRP
for the use of some of this water.
Sixth. The Settlement permits the continued use by the Community of
water discharged into certain drain ditches by SRP, and provides for
the contribution by SRP of $500,000 toward the cost of easements,
construction, rehabilitation, operation and maintenance of these drain
ditches on the Reservation.
Seventh. In exchange for these and other benefits to the Community,
its members and allottees, the Settlement provides for the execution of
a permanent, comprehensive waiver of the claims of these parties, and
the United States on their behalf, for water rights, injuries to water
rights and injuries to water quality, among others, as provided in
exhibits to the Settlement Agreement. Of greatest significance, the
waiver of all water rights claims by the Community, its members and
allottees, and the United States on their behalf, extends to all water
users in the Gila River Basin, including users who are not parties to
the Settlement Agreement. Other parties to the Settlement Agreement
will also execute waivers and releases of claims that these parties may
have against the Community, its members and allottees, or the United
States on their behalf, as specified in the Settlement Agreement.
In conclusion, we support the passage of H.R. 885, which is the
culmination of the efforts of many people, over almost 15 years, to
resolve these difficult issues regarding the allocation of an extremely
scarce resource. Enactment of H.R. 885 is crucial to achieving
certainty among users in central Arizona regarding water rights, and
the dependable allocation of water supplies for the foreseeable future.
We therefore strongly urge this Subcommittee to recommend passage of
the bill to the full House.
Arizona Water Settlements Act
TITLE II--GILA RIVER INDIAN COMMUNITY WATER RIGHTS SETTLEMENT
Briefing Paper/Attachment to Testimony of John F. Sullivan, Salt River
Project Prepared by Salmon, Lewis & Weldon, P.L.C., on Behalf of Salt
River Project
HISTORY OF WATER RIGHTS ISSUES PERTAINING TO THE GILA RIVER INDIAN
RESERVATION.
The Gila River Indian Reservation was created by an Act of Congress
in 1859 and was enlarged by seven separate Executive Orders in 1876,
1879, 1882, 1883, 1911, 1913 and 1915. Currently, the Reservation
encompasses approximately 377,000 acres of land in central Arizona.
Most of these lands are located in the Gila River watershed. A small
portion of the 1879 enlargement, however, borders the Salt River near
its confluence with the Gila River.
In approximately 1872, upstream settlers in the Safford Valley
(presently the Gila Valley Irrigation District), Duncan-Virden Valley
(presently the Franklin Irrigation District) and in the Florence-Casa
Grande area (presently the San Carlos Irrigation and Drainage District)
(``SCIDD'') began settling upstream of the Reservation and diverting
water from the Gila River for irrigation. These diversions had the
effect of reducing the quantities of Gila River water available to the
Indian Community for downstream diversion. In 1924, in an attempt to
obtain a more dependable source of water for the Indian Community, the
United States Congress authorized the construction of Coolidge Dam as
the principle feature of the San Carlos Irrigation Project (``SCIP'').
Pursuant to the 1924 Act, and a separate agreement between the
government and private landowners within the present boundaries of
SCIDD, water stored behind Coolidge Dam, when constructed, would be
used for the irrigation of 50,000 acres within the Gila River Indian
Reservation and 50,000 acres within SCIDD.
In 1925, the United States, on behalf of the Indian Community,
SCIDD landowners and others, sued upstream water users in the Safford
and Duncan-Virden Valleys, along with all other users of water from the
Gila River from its confluence with the Salt River up to the Duncan-
Virden Valley, ending in New Mexico. The suit, which came to be known
as the Globe Equity litigation, sought among other things to establish
the prior rights of the Indians of the Gila River Indian Reservation
and the newly created SCIP to the use of Gila River water.
The United States District Court for the District of Arizona
appointed a Special Master who heard arguments, listened to testimony,
and admitted exhibits. After ten years of negotiations, the parties
agreed to settle the suit and a consent decree embodying the settlement
was drafted. The court entered the stipulation and consent for entry of
the Final Decree on June 29, 1935. Under the Decree, the United States,
on behalf of the Indians of the Gila River Indian Reservation, is
entitled to divert 300,000 acre-feet of water annually from the Gila
River. Historically, however, the Indian Community has received, on
average, only about 100,000 acre-feet annually of its decreed
entitlement, due to insufficient flows in the Gila River at the
Reservation's diversion point.
Despite the entry of the Globe Equity Decree, disputes persisted
over the interpretation of certain of its provisions, particularly
those concerning the calculation of the upper valley diverters' annual
entitlements under the Decree. Additionally, as technology for pumping
from wells became more readily available, withdrawals of groundwater in
the upper valleys increased. The legality of these uses were not
expressly addressed in the Decree; nevertheless, the effect of
increased groundwater pumping in the upper valleys was to lessen the
flow of the Gila River, thereby decreasing the amounts of water
available for use by the Community and SCIDD landowners downstream.
At the time of the entry of the Decree in 1935, the Indian
Community's interests were represented in the Globe Equity proceeding
by the United States. A motion to intervene submitted by the Indian
Community just prior to the entry of the Decree was denied by the
district court, and this denial was never appealed. In 1982, the United
States District Court entered an Order permitting the Indian Community
to intervene as party to the Globe Equity Decree for the purpose of
enforcing the Decree against the upper valley users. The court declined
to permit the Community to reopen the issues resolved by the Decree.
This decision was recently echoed by the Maricopa County Superior Court
in the Gila River Adjudication. The adjudication court held that the
Globe Equity Decree was res judicata as to the Indian Community's
claims to additional Gila River water which might have been asserted
and decided by the court in 1935; the Community accordingly was
precluded from asserting these claims to additional Gila River water in
the adjudication. This decision, along with the earlier decision of the
Globe Equity Decree court, enhanced the importance of the Community's
enforcement suit as a vehicle for addressing its longstanding
grievances with water users in the upper Gila valley.
The Globe Equity enforcement litigation, commenced by the Indian
Community in 1982, remains ongoing. The court has issued numerous
decisions interpreting provisions of the Decree; however, the
Community's challenge to the legality of groundwater pumping by the
upper Gila valley users has not yet been decided.
While most of the lands within the Gila River Indian Reservation
are within the Gila River watershed, a small portion of the Reservation
lies within the Salt River watershed, west of the Phoenix metropolitan
area. Many of these lands were added to the Reservation in 1879. At
that time, a group of Indians, commonly referred to as the Maricopa
Colony, was living there. Since some time prior to 1900, these Indians
diverted water from the Salt River for the irrigation of approximately
1,000 acres.
In 1901, the federal government, acting on behalf of the Maricopa
Indians, brought suit in Arizona territorial court to stop nearby non-
Indian irrigators from interfering with the waters of the Salt River
used by the Indians. Some of the defendants named in the suit later
became shareholders of the Association, after its incorporation in
1903. On June 11, 1903, Judge Kent issued the decree in United States
v. Haggard, which adjudicated the Maricopa Indians' right to irrigate
approximately 1,080 acres of land with water from the Salt River. In
1917, the Haggard Decree was incorporated into the Benson-Allison
Decree, which also adjudicated water rights for lands not included in
the original Haggard Decree, located near the confluence of the Salt
and Gila Rivers.
Other than the approximately 1,080 acres irrigated by the Maricopa
Colony, and included in the Haggard and Benson-Allison Decrees, no
lands on the Gila River Indian Reservation have ever been directly
irrigated using Salt River water. Despite this fact, in the mid-1980s,
the Indian Community asserted a claim in the pending Gila River
Adjudication to approximately 1.8 million acre-feet of water annually
from the Salt and Verde Rivers, as well as the Gila River. More
recently, the Indian Community amended its claims and now asserts the
right to more than 2.7 million acre-feet of water annually from the
Gila River, its tributaries and groundwater. These claims, which far
exceed the combined annual flow of all of these rivers, are based on
the federal reservation of rights doctrine and largely encompass
potential future uses of water by the Indian Community on its
Reservation.
Thus far in the Adjudication, the Indian Community's attempts to
prosecute its enlarged claims to the Salt River have not met with
success. The Superior Court in the adjudication recently concluded that
the Indian Community and the United States are estopped by a decision
of the United States Court of Claims, entered decades ago, from
asserting any claim to the Salt River other than for the 1,490 acres
within the Maricopa Colony. The Community has appealed this decision of
the Superior Court, as well as its earlier decision precluding the
Community's assertion of additional claims to the Gila River. At this
time, the Arizona Supreme Court has not decided whether to hear the
Community's appeal. In the absence of the Settlement that is presently
before the Congress, the continued prosecution of these appeals by the
Community could delay the ultimate determination of its water right
claims by a court for some time. In the interim, the uncertainty
associated with the potential magnitude of the Community's rights to
water from the Salt and Verde Rivers continues to threaten existing
water uses.
In order to alleviate this uncertainty and assure the dependability
of water supplies to the more than 3 million residents of Maricopa,
Yavapai and Pinal Counties in central Arizona, local parties initiated
water settlement negotiations with the Indian Community and the United
States in 1989. Fourteen years later, the Indian Community, the United
States and local interests have reached a comprehensive settlement of
the Community's water rights claims, which is embodied in the
Settlement Agreement and legislation presently before the Congress.
COMPONENTS OF THE GILA RIVER INDIAN COMMUNITY WATER RIGHTS SETTLEMENT
AGREEMENT
I. Parties.
The Settlement Agreement is entered into among: the United States
of America; the Gila River Indian Community; the State of Arizona; the
Salt River Project Agricultural Improvement and Power District; the
Salt River Valley Water Users' Association; the Roosevelt Irrigation
District; the Arizona Water Company; the Arizona cities of Casa Grande,
Chandler, Coolidge, Glendale, Goodyear, Mesa, Peoria, Phoenix, Safford,
Scottsdale and Tempe; the Arizona towns of Duncan, Florence, Gilbert,
Kearny and Mammoth; the Franklin Irrigation District; the Gila Valley
Irrigation District; the Maricopa-Stanfield Irrigation & Drainage
District; the Central Arizona Irrigation and Drainage District; the San
Carlos Irrigation and Drainage District; the Hohokam Irrigation and
Drainage District; the Arlington Canal Company; the Buckeye Irrigation
Company; the Buckeye Water Conservation and Drainage District; Central
Arizona Water Conservation District; Phelps Dodge Corporation; and the
Arizona Game and Fish Commission.
II. Annual Water Entitlement and Components.
A. Average Annual Entitlement. Under the Settlement Agreement, the
Indian Community shall be entitled to an average of 653,500 acre-feet
of water annually. This includes, among other things, the Community's
existing decreed rights under the Globe Equity, Benson-Allison and
Haggard Decrees, plus substantial amounts of groundwater pumped from
beneath the Reservation. The average shall be calculated over a
consecutive ten-year period, reckoned in continuing progressive series,
beginning on January 1 of the year after the date that the Settlement
Agreement becomes enforceable.
B. Components of Entitlement. The Indian Community's average annual
entitlement shall be satisfied from the following sources, subject to
their availability in any given year, as specified in the pertinent
provisions of the Settlement Agreement.
1. Globe Equity Decree Water. As part of the Settlement, the
United States and the Indian Community have agreed not to claim
any rights to the waters of the Gila River except those decreed
to them as specified in Articles 5 and 6 of the Globe Equity
Decree. The United States and the Indian Community shall have
the right to enforce the provisions of the Decree against other
water users, including water users that are not parties to the
original Decree. However, the Indian Community has agreed to
limit its enforcement rights under the Decree, by refraining
from bringing enforcement proceedings against existing users in
the Upper Gila and San Pedro River watersheds. See Section
II.B.10 below.
2. Haggard Decree Water. The Settlement recognizes the right
of the United States, the Community, its members and allottees
under the Haggard Decree, as modified by the Benson-Allison
Decree, to 540 miners inches of water from the Salt River. The
Settlement also confirms that such rights shall be deemed fully
satisfied by SRP's performance of its water delivery
obligations under the Contract between the United States and
the Salt River Valley Water Users' Association dated May 5,
1936, as amended. This Contract, commonly referred to as the
Maricopa Contract, provides that SRP shall make available 5,900
acre-feet of water per year for diversion and use on
Reservation lands with rights under the Haggard Decree, as
modified by the Benson-Allison Decree.
3. SRP Stored Water. Resolving the additional claims of the
Indian Community to water from the Salt River, the Settlement
entitles the Indian Community to an annual amount of water from
the Salt River Project (``SRP''), ranging from 0 to 35,000
acre-feet, depending upon storage levels in SRP reservoirs on
May 1 of each year. The annual variation in the amount of the
Community's water entitlement is based on a program of shared
surpluses and shortages, agreed to as a guiding principle by
the parties during their negotiations. The Community's stored
water entitlement will be transported to the Reservation via
SRP's water delivery system, subject to certain delivery system
capacity limitations specified in the Agreement. Water that is
credited to the Community on May 1 of each year, but is not
used by April 30 of the following year, may be carried over in
storage for the Community's subsequent use, up to a maximum
amount, specified in the Agreement, which may not be exceeded
at any time. Moreover, in any single year, the Community will
not be entitled to order more than 45,000 acre-feet total from
the current year's entitlement and the Community's entitlement
to ``carry over'' water from prior years. The Community shall
pay for the delivery of SRP stored water at 100 percent of the
cost per acre-foot of stored water for SRP shareholders. The
Community's entitlement to SRP stored water will be phased in
over a period of five-years, commencing in the year that the
Settlement becomes enforceable.
4. Roosevelt Water Conservation District Surface Water. The
Indian Community has reached a separate settlement of its water
disputes with the Roosevelt Water Conservation District
(``RWCD''), under which the Community is entitled to 4,500
acre-feet of water annually from RWCD. The agreement also
provides for the relinquishment of RWCD's allocation of Central
Arizona Project water to the United States for the benefit of
the Community, also referred to in Section II.B.5 below. The
Gila River adjudication court's approval of the Indian
Community's settlement agreement with RWCD is proceeding
independent of this Settlement.
5. CAP Water. The Settlement entitles the Indian Community
to a total of 328,500 acre-feet annually of water, from the
Central Arizona Project (``CAP''), subject to the availability
of the water and the priorities of the respective allocations
comprising the Community's entitlement. In addition to the
Community's original CAP entitlement, multiple entities with
contractual rights to water from the Central Arizona Project
(``CAP'') have agreed to assign their CAP allocations to the
Indian Community, as a vehicle for settling the Community's
objections to appropriative rights also held by these entities.
The individual components of the Community's entitlement to CAP
water are: (a) the Community's original CAP Indian Priority
Water allocation (173,100 acre-feet); (b) Roosevelt Water
Conservation District CAP Water (18,600 acre-feet); (c)
Harquahala Valley Irrigation District CAP Water (17,800 acre-
feet); (d) Asarco CAP Water (17,000 acre-feet) if an agreement
is reached between Asarco and the Community; and (e) new CAP
non-Indian Agricultural Priority Water (102,000 acre-feet). The
Indian Community may lease or exchange all or a portion of its
CAP entitlement, but none of its entitlement may be permanently
transferred, nor may the Community lease, exchange, forbear or
otherwise transfer its CAP entitlement for use outside the
State of Arizona.
Subject to certain monthly and annual volume limitations,
SRP has agreed to take delivery of CAP water to which the
Community is entitled for use by SRP shareholders, in exchange
for the storage of the same amount of Salt and Verde River
water in SRP reservoirs for eventual use by the Community. This
exchange is subject to the ability of SRP to divert and
beneficially use the CAP water to which the Community is
entitled. SRP will deliver exchange water ordered by the
Community via the SRP water delivery system only after
determining that the system capacity is not needed to fulfill
water delivery obligations of SRP that predate the Settlement.
SRP also has agreed to accept delivery of CAP water to
which the Community is entitled for direct delivery to the
Reservation, via SRP's water delivery system. The direct
delivery of this water to the Community also will be subject to
the limits of SRP's water delivery system capacity, as
discussed in the previous paragraph.
6. Reclaimed Water from the Cities of Chandler and Mesa. The
Indian Community shall be entitled to receive 40,600 acre-feet
annually of reclaimed water, made available to it by the cities
of Chandler and Mesa. In exchange, the Indian Community shall
cause the delivery to these cities of 32,500 acre-feet of the
Community's CAP Indian Priority water. In addition to the
exchange of reclaimed water for CAP water, the City of Chandler
shall deliver reclaimed water to the Community in the amount of
4,500 acre-feet annually.
7. Underground Water. The Indian Community also shall be
permitted to pump underground water from wells on the
Reservation to the extent needed to satisfy its annual water
entitlement to 653,500 acre-feet. The Settlement Agreement
additionally calls for the state legislature's creation of
underground water ``protection zones'' on the south side of the
Reservation, in Pinal County. Underground water pumping by non-
Indians from these zones will be limited to specific per-acre
amounts set forth in the Settlement Agreement. Pumping by non-
Indian water users that exceeds these amounts must be
replenished by the State or other persons as specified in the
Agreement.
8. Blue Ridge Water. Phelps Dodge Corporation has offered to
transfer to SRP its right, title and interest in Blue Ridge
Reservoir, including all rights to water developed by operation
of the reservoir. If SRP accepts Phelps Dodge's offer, and the
transfer of water rights to SRP is accomplished under Arizona
law, then SRP will provide to the Community a portion of the
water stored behind Blue Ridge Reservoir, ranging from zero to
836 acre-feet annually, depending on reservoir storage levels
in Blue Ridge on May 1 of each year. Water that is credited to
the Community on May 1 of each year, but is not used by the end
of April 30 of the next year, will not be available for the
Community's use in subsequent years. If SRP accepts Phelps
Dodge's offer and obtains the right to water stored in Blue
Ridge, there also may be an opportunity for municipalities in
water scarce areas of Gila County, Arizona, to enter into
agreements with SRP for the use of some of this water.
9. SRP Drain Water. The Settlement permits the continued use
by the Community of water discharged into certain drain ditches
by SRP, and provides for the contribution by SRP of $500,000
toward the cost of easements, construction, rehabilitation,
operation and maintenance of these drain ditches on the
Reservation.
10. Diversions by Upper Gila Valley and San Pedro River Water
Users. As part of the Settlement, the Indian Community will
enter into agreements with municipalities in the upper Gila
valley and San Pedro River watershed, resolving objections by
the Community to these municipalities' water uses. Agreements
with Safford, Duncan, Kearny and Mammoth are attached as
exhibits to the Settlement Agreement. Additionally, the
Community will enter into a comprehensive agreement with
multiple irrigation districts and other water users in the
upper Gila valley, which resolves long-held grievances by the
Community's with respect to the effects of diversions by these
users, who are parties to the Globe Equity Decree, on the
Community's downstream water rights.
In addition to the resolution of disputes between the
Indian Community and upper valley users with water rights under
the Globe Equity Decree, the Settlement also creates a legal
framework for resolution of present and future disputes between
the Community and upstream water users who do not hold decreed
rights. The Settling Parties have agreed to the establishment,
by state legislation, of the Upper Gila Watershed Maintenance
Program, whose purpose is to limit groundwater pumping in the
Upper Gila River watershed and San Pedro River watershed. After
the program is established, as long as its provisions are
enforced, the Settlement's ``Safe Harbor'' provisions,
described in detail in the Agreement and exhibits, will shield
existing water diversions from the upper Gila valley and San
Pedro River watersheds from legal challenge by the Community.
In general, the Safe Harbor provisions allow the continuation
of existing diversions of water for irrigation, municipal and
industrial, and domestic purposes within the upper Gila River
watershed and the San Pedro River watershed. These Safe Harbor
provisions also permit the initiation of new domestic and large
industrial uses in these areas, under terms and conditions
specified in the Settlement.
III. Waiver and Release of Claims.
In exchange for the benefits provided under the Settlement
Agreement, the Indian Community, its members and allottees, and the
United States on their behalf, shall execute a comprehensive waiver and
release of claims for water rights, injuries to water rights and
injuries to water quality, among others, as provided in the exhibits to
the Settlement Agreement. The other settling parties also shall execute
waivers and releases of claims that such parties may have against the
Community, its members or allottees, and the United States on their
behalf, as specified in the Agreement.
IV. Community Fund.
A. Federal Funds. The Settlement, when confirmed and implemented
by an enactment of the United States Congress, will provide the
Community with funding for the following purposes:
1. Rehabilitation of existing facilities and construction of
extensions to those facilities--$147 million.
2. Defrayal of operation, maintenance and replacement costs
associated with the delivery of the Community's CAP water--$53
million.
3. Rehabilitation of subsidence damages to lands within the
Gila River Indian Reservation occurring before the date the
Settlement Agreement becomes enforceable--$4 million.
4. Implementation of a water quality monitoring program--$3.4
million.
B. State Contribution. The Settlement also calls for the State of
Arizona to ``firm'' the delivery of 15,000 acre-feet of the Community's
new entitlement to CAP non-Indian agricultural priority water to the
equivalent of municipal and industrial CAP water delivery priority for
100 years.
V. Congressional and Court Approval.
Before it can be enforceable, the Agreement must, among other
things, be confirmed by the United States Congress and approved by the
courts in the Gila River Adjudication and Globe Equity proceedings.
VI. Benefits to the State of Arizona Resulting From the Settlement.
A. Greatly increased certainty of the priority and quantity of
relative rights to the Salt, Verde, Gila and San Pedro Rivers, and of
CAP allocations will benefit all of Arizona in future planning.
B. The waiver of claims to be executed by the Indian Community and
the United States under the Settlement Agreement is comprehensive.
Specifically, the Community will agree not to assert claims to water in
excess of the quantities provided in the Agreement as to all water
users in Central Arizona, including individuals and small entities
without the resources to defend themselves in litigation. The Community
will also agree not to object to the water right claims of all other
users in Central Arizona, with the exception of a small number of users
whose asserted water rights, if upheld, would impair the exercise of
the Community's water rights under the Settlement Agreement. The
Community is continuing its efforts to reach a settlement of its
disputes with these users.
C. The resolution of disputed issues related to the allocation of
CAP water as part of the Congressional legislation approving the
Settlement frees up that water for future Indian settlements.
D. Additional water is made available to the valley cities and
towns under the Settlement, through leases or exchanges of water with
the Indian Community.
E. State agencies, including the Arizona Department of Water
Resources and the Arizona Game and Fish Commission would save money
that would otherwise be spent in litigation of the Indian Community's
claims, as well as the Community's objections to the claims of these
state agencies.
F. This settlement will permit the Community, the United States on
its behalf and the Community's neighboring non-Indian water users to
put behind them contentious and divisive litigation concerning the
Community's water rights and to move forward together in planning for
the continued prosperous development of Arizona.
______
Statement submitted for the record by The Honorable Van Talley, Mayor,
City of Safford, Arizona
Chairman Calvert and Members of the Subcommittee:
Thank you for the opportunity to submit testimony on H.R. 885--
Arizona Water Settlements Act. The City of Safford respectfully submits
written testimony supporting the Gila River Indian Community Water
Rights Settlement authorized in H.R. 885. On behalf of the residents of
Safford, Arizona, and customers of the City water system I express
gratitude for your interest in our water problems.
Located along the bank of the Gila River upstream from the Gila
River Indian Reservation, Safford is a growing city serving water to
more than 20,000 people, including the Town of Thatcher and other
neighboring communities in Graham County. As Southeast Arizona's
commercial center, Safford, like other municipal, industrial and
agricultural sectors, requires reasonable and reliable water supplies.
The Gila River Indian Community Water Rights Settlement offers this
security among the parties.
For decades, Safford has continued to work with water users in the
Upper Gila River Valley, the United States, and Native American tribes
and communities to resolve water quantity and water quality issues. For
the past five years, the City, along with other parties, diligently
worked to settle the Gila River Indian Community's water rights claims.
The bill before you is the culmination of efforts resolving the
Community's claims, which in turn saves the parties from uncertain,
complex, and expensive litigation concerning water rights.
Like many other parties, one of the benefits Safford receives is
certainty of water supplies and the ability to plan for the future
accordingly. The Community and certain other parties confirm Safford's
water rights that would otherwise be contested and litigated. The
Settlement recognizes Safford's right to use 9,740 acre-feet of water
per year and provides mechanisms to enable the City to meet higher
demands. While Safford's water allocation is relatively small when
compared to the Community's 653,500 acre-feet, it nonetheless assures
Safford of water for present and reasonably foreseeable needs.
The Settlement also helps to enhance Gila River water quality while
simultaneously providing Safford with a water source to meet additional
demands. The Settlement authorizes the appropriation of funds to repay
indebtedness on the City's recently constructed state-of-the-art water
treatment facility. Treated water may be returned to the stream to
enhance stream flows and stream quality, or recharged to meet Safford's
future water demands. The use of treated water is just one of the
methods that Safford may implement to meet future needs without
diminishing available water for other users and parties to the
Settlement. To obtain these benefits, Safford agreed to a water budget
of about one half of its claimed water rights.
The treatment plant and a dependable water supply for the benefit
of Safford are just a few of the positive results that are being
proposed in the Settlement. Dozens of cities and towns receive similar
benefits. Agricultural and industrial interests may continue to operate
with less litigation risk towards their water supplies. The Settlement
also enhances and preserves land, wildlife, and the environment.
The Settlement with the Gila River Indian Community and H.R. 885 is
a giant step in resolving the pending issues and confirming water
rights among the parties to a limited supply of water. I urge the House
to pass this bill that will settle significant water rights in the
State of Arizona and allow the Gila River Indian Community and many
cities, towns, irrigation districts and others to plan for future
growth with confidence and reliable water supplies.
______
The following information submitted for the record was too
lengthy to print and has been retained in the Committee's
official files:
Burdette, Vivian, Chairwoman, Tonto Apache Tribe,
Statement submitted for the record in support of H.R. 885
Fullmer, Jamie, Chairman, Yavapai-Apache Nation,
Statement submitted for the record in support of H.R. 885
Spokane Tribe of Indians: A Showing of the United
States' Need to Fairly and Honorably Settle the Tribes Claims
for Grand Coulee--A Narrative with Attachments, submitted for
the record on H.R. 1753
[A supplemental statement on H.R. 885 submitted for the
record by Herbert R. Guenther, Director, Arizona Department of
Water Resources, follows:]
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