[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
H.R. 2515, ``LOWER COLORADO RIVER MULTI-SPECIES CONSERVATION PROGRAM
ACT'' & H.R. 1970, ``NORTHWESTERN NEW MEXICO RURAL WATER PROJECTS
ACT''
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
Tuesday, July 24, 2007
__________
Serial No. 110-35
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
or
Committee address: http://resourcescommittee.house.gov
______
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL II, West Virginia, Chairman
DON YOUNG, Alaska, Ranking Republican Member
Dale E. Kildee, Michigan Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas Chris Cannon, Utah
Frank Pallone, Jr., New Jersey Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin Jeff Flake, Arizona
Islands Stevan Pearce, New Mexico
Grace F. Napolitano, California Henry E. Brown, Jr., South
Rush D. Holt, New Jersey Carolina
Raul M. Grijalva, Arizona Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam Cathy McMorris Rodgers, Washington
Jim Costa, California Bobby Jindal, Louisiana
Dan Boren, Oklahoma Louie Gohmert, Texas
John P. Sarbanes, Maryland Tom Cole, Oklahoma
George Miller, California Rob Bishop, Utah
Edward J. Markey, Massachusetts Bill Shuster, Pennsylvania
Peter A. DeFazio, Oregon Dean Heller, Nevada
Maurice D. Hinchey, New York Bill Sali, Idaho
Patrick J. Kennedy, Rhode Island Doug Lamborn, Colorado
Ron Kind, Wisconsin Mary Fallin, Oklahoma
Lois Capps, California Kevin McCarthy, California
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South
Dakota
Heath Shuler, North Carolina
James H. Zoia, Chief of Staff
Jeffrey P. Petrich, Chief Counsel
Lloyd Jones, Republican Staff Director
Lisa Pittman, Republican Chief Counsel
------
SUBCOMMITTEE ON WATER AND POWER
GRACE F. NAPOLITANO, California, Chairwoman
CATHY McMORRIS RODGERS, Washington, Ranking Republican Member
Jim Costa, California Ken Calvert, California
George Miller, California Dean Heller, Nevada
Mark Udall, Colorado Doug Lamborn, Colorado
Joe Baca, California Mary Fallin, Oklahoma
Vacancy Don Young, Alaska, ex officio
Nick J. Rahall II, West Virginia,
ex officio
------
CONTENTS
----------
Page
Hearing held on Tuesday, July 24, 2007........................... 1
Statement of Members:
Heller, Hon. Dean, a Representative in Congress from the
State of Nevada............................................ 4
Lamborn, Hon. Doug, a Representative in Congress from the
State of Colorado.......................................... 3
Mitchell, Hon. Harry, a Representative in Congress from the
State of Arizona........................................... 5
Prepared statement of.................................... 5
Napolitano, Hon. Grace F., a Representative in Congress from
the State of California.................................... 2
Prepared statement of.................................... 3
Udall. Hon. Tom, a Representative in Congress from the State
of New Mexico.............................................. 6
Statement of Witnesses:
Bitter Smith, Susan, President, Board of Directors, Central
Arizona Water Conservation District, Phoenix, Arizona...... 10
Prepared statement on H.R. 1970.......................... 13
Prepared statement on H.R. 2515.......................... 12
Response to questions submitted for the record........... 14
Caan, George M., Executive Director, Colorado River
Commission of Nevada, Las Vegas, Nevada................... 16
Prepared statement on H.R. 2515.......................... 18
Response to questions submitted for the record........... 19
Dunlap, Jim, Chairman, New Mexico Interstate Stream
Commission, Santa Fe, New Mexico........................... 58
Prepared statement on H.R. 1970.......................... 59
Response to questions submitted for the record........... 64
Gillon, Kara, Senior Staff Attorney, Defenders of Wildlife,
Albuquerque, New Mexico.................................... 20
Prepared statement on H.R. 2515.......................... 21
Response to questions submitted for the record........... 26
Houtz, Gregg, Deputy Counsel, Arizona Department of Water
Resources, Phoenix, Arizona, Oral statement on behalf of
Herbert R. Guenther on H.R. 1970........................... 71
Response to questions submitted for the record........... 73
Johnson, Robert, Commissioner, Bureau of Reclamation, U.S.
Department of the Interior, Washington, D.C., Oral
statement on H.R. 1970..................................... 44
Prepared statement on H.R. 1970.......................... 44
Oral statement on H.R. 2515.............................. 8
Prepared statement on H.R. 2515.......................... 9
Lundstrom, Hon. Patricia A., Member, New Mexico House of
Representatives, and President, Northwest New Mexico
Council of Governments, Gallup, New Mexico................. 65
Prepared statement on H.R. 1970.......................... 67
Shirley, Hon. Joe, Jr., President, Navajo Nation, Window
Rock, Arizona.............................................. 48
Prepared statement on H.R. 1970.......................... 50
Response to questions submitted for the record........... 54
Zimmerman, Gerald R., Executive Director, Colorado River
Board of California, Glendale, California, Oral statement
on H.R. 1970............................................... 73
Prepared statement on H.R. 1970.......................... 75
Response to questions on H.R. 1970....................... 77
Oral statement on H.R. 2515.............................. 27
Prepared statement on H.R. 2515.......................... 28
Response to questions on H.R. 2515....................... 30
Additional materials supplied:
Grubaugh, Elston, Acting General Manager, The Imperial
Irrigation District, Statement submitted for the record on
H.R. 2515.................................................. 84
Guenther, Herbert R., Director, Arizona Department of Water
Resources, Statement submitted for the record on H.R. 1970. 86
Statement submitted for the record on H.R. 2515.......... 89
Jicarilla Apache Nation, Statement submitted for the record
on H.R. 1970............................................... 90
Jones, Evan, Vice President, BHP Navajo Coal Company,
Statement submitted for the record on H.R. 1970............ 93
Kightlinger, Jeffrey, General Manager, The Metropolitan Water
District of Southern California, Statement submitted for
the record on H.R. 2515.................................... 94
List of documents retained in the Committee's official files. 95
San Juan Agricultural Water Users Association, Mike Sullivan,
Chairman, Statement submitted for the record on H.R. 1970.. 96
LEGISLATIVE HEARINGS ON H.R. 2515, TO AUTHORIZE APPROPRIATIONS FOR THE
BUREAU OF RECLAMATION TO CARRY OUT THE LOWER COLORADO RIVER MULTI-
SPECIES CONSERVATION PROGRAM IN THE STATES OF ARIZONA, CALIFORNIA, AND
NEVADA, AND FOR OTHER PURPOSES. ``LOWER COLORADO RIVER MULTI-SPECIES
CONSERVATION PROGRAM ACT;'' AND H.R. 1970, TO AMEND THE COLORADO RIVER
STORAGE PROJECT ACT AND PUBLIC LAW 87-483 TO AUTHORIZE THE CONSTRUCTION
AND REHABILITATION OF WATER INFRASTRUCTURE IN NORTHWESTERN NEW MEXICO,
TO AUTHORIZE THE USE OF THE RECLAMATION FUND TO FUND THE RECLAMATION
WATER SETTLEMENTS FUND, TO AUTHORIZE THE CONVEYANCE OF CERTAIN
RECLAMATION LAND AND INFRASTRUCTURE, TO AUTHORIZE THE COMMISSIONER OF
RECLAMATION TO PROVIDE FOR THE DELIVERY OF WATER, AND FOR OTHER
PURPOSES. ``NORTHWESTERN NEW MEXICO RURAL WATER PROJECTS ACT.''
----------
Tuesday, July 24, 2007
U.S. House of Representatives
Subcommittee on Water and Power
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 10:02 a.m. in
Room 1334, Longworth House Office Building, Hon. Grace F.
Napolitano [Chairwoman of the Subcommittee] presiding.
Present: Representatives Napolitano, Costa, Heller,
Lamborn, and Udall.
STATEMENT OF THE HON. GRACE F. NAPOLITANO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mrs. Napolitano. Good morning ladies and gentlemen, and
welcome to the hearing on two significantly different yet major
issues of importance to the future of water in the western
United States.
We will hear testimony on H.R. 2515, a bill that would put
in place a proactive approach to the preservation of habitat
while ensuring continued water deliveries in the lower Colorado
River Basin.
And also on H.R. 1970, legislation that will implement the
Water Settlement Agreement between the Navajo Nation and New
Mexico and the United States.
Both of these bills address critical water topics that can
no longer be overlooked or ignored. Habitat restoration and
preservation concerns now have a seat at the table, as they
well should have, and Indian water rights, although created and
vested as of the date of the reservation, were often left
behind as major water deals to benefit non-Indians were
developed in the decades past.
I support the general premise of both bills but I do have a
number of questions and concerns. With regard to H.R. 2515, I
am concerned about the 50-year term of the agreement proposed
in the legislation which many, including myself, feel is too
long. Nobody can predict what the lower Colorado River might
look like 50 years from now, and I am also concerned that some
of the limitations in the bill effectively immunize water users
from future changes to the Endangered Species Act.
H.R. 1970, introduced by our colleague from New Mexico,
Congressman Tom Udall, is certainly the most significant Indian
water rights legislation to come before this subcommittee since
2005 when we enacted the Arizona Water Rights Settlement Act.
This legislation includes a number of provisions that have
drawn criticism from the Administration, and we have tried to
address some of those issues in today's hearing. I hope our
questioning of the witnesses this morning will help to resolve
some of these points.
Commissioner Johnson, I am particularly concerned that the
Bureau of Reclamation has been very closely involved in many of
these projects contemplated, especially in H.R. 1970, but yet
you step away from that in your statement including indicating
that the Administration did not participate in the drafting of
Water Rights Settlement embodied in H.R. 1970 and does not
support a water settlement under these circumstances. What
exactly is the role of the Administration when it comes to
Indian water settlements?
Let me welcome all the witnesses. First of all, our acting
Ranking Member, Mr. Lamborn, and Representative Heller and, I
believe, Representative Mitchell. I welcome our guests to the
Subcommittee today. Congressman Tom Udall is not here yet. I do
not see him. Congressman Harry Mitchell is here. Thank you, and
Representative Raul Grijalva who will be joining us, and thank
you for those that are here.
I ask unanimous consent that Representatives Harry Mitchell
and Tom Udall be allowed to sit on the dais with the
Subcommittee this morning to participate in Subcommittee
proceedings, and without objection so ordered. I will begin the
meeting with a brief statement. I am sorry. My opening
statement I have given, and I would now recognize the Ranking
Member, Mr. Lamborn, for his statement.
[The prepared statement of Mrs. Napolitano follows:]
Statement of The Honorable Grace F. Napolitano, Chairwoman,
Subcommittee on Water and Power
Today's hearing will consider two significantly different, yet
major issues of importance to the future of water in the Western United
States. We will hear testimony on H.R. 2515, a bill that will put in
place a proactive approach to the preservation of habitat while
ensuring continued water deliveries in the lower Colorado River Basin;
and also on H.R. 1970, legislation that will implement the water
settlement agreement between the Navajo Nation in New Mexico and the
United States.
Both bills address critical water topics that can no longer be
overlooked or ignored. Habitat restoration and preservation concerns
now have a seat at the table, as they should. And Indian water rights,
although created and vested as of the date of the reservation, were
often left behind as major water deals to benefit non-Indians were
developed in decades past.
I support the general premise of both bills but I do have a number
of questions. With regard to H.R. 2515, I am concerned that the 50 year
term of the MSCP agreement proposed in this legislation may be too
long. Nobody can predict what the Lower Colorado River might look like
fifty years from now. I am also concerned that some of the limitations
in the bill effectively immunize water users from future changes to the
Endangered Species Act.
H.R. 1970, introduced by our colleague from New Mexico, Congressman
Tom Udall, is certainly the most significant Indian water rights
legislation to come before this Subcommittee since 2005, when we
enacted the Arizona Water Rights Settlement Act. This legislation
includes a number of provisions that have drawn criticism from the
Administration, and I hope our questioning of witnesses this morning
will help to resolve some of these points. Commissioner Johnson, I am
particularly concerned that the Bureau of Reclamation has been very
closely involved in many of the projects contemplated in H.R. 1970, but
you step away from that in your statement, indicating that the
Administration did not participate in the drafting of the water rights
settlement embodied in H.R. 1970, and does not support a water
settlement under these circumstances. What exactly is the role of the
Administration when it comes to Indian water settlements?
We welcome our witnesses this morning and look forward to their
testimony. I am pleased to now yield to my friend from Colorado
Springs, the acting Ranking Minority Member of our Subcommittee,
Congressman Doug Lamborn, for any statement he may have.
______
STATEMENT OF THE HON. DOUG LAMBORN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Mr. Lamborn. Thank you, Madame Chairwoman, and it is good
to be here for this subcommittee meeting this morning. I will
be standing in for a short while for the Ranking Member, Cathy
McMorris Rodgers of Washington State, and in a minute I am
going to introduce the sponsor of the bill, and ask him to
actually take over for this portion of the hearing because it
is his bill that we will be considering, Dean Heller of Nevada.
But these bills being considered today try to resolve water
issues in the Colorado River Basin. Throughout the west water
and power users have legitimately asked for certainty in their
supplies. Certainty has been hard to find with an ongoing
drought and with constant litigations surrounding the
Endangered Species Act. However, Mr. Heller and Mr. Mitchell's
bill provide for certainty and Endangered Species protection at
the same time. It proves that environmental protection and the
water needs for people can truly be met together outside of the
courts.
I also noticed that Mr. Udall's bill attempts to provide
water for his constituents. I commend my colleague from New
Mexico for introducing his bill. However, I am concerned that
neighboring states are not completely on board with this
effort, and that the Federal government was not party to the
agreement referenced in the bill.
But I look forward to hearing from my colleagues and
today's witnesses about these important bills, and at this
point I would like to turn, with the permission of the
Chairwoman, things over from my perspective to the member from
Nevada, Dean Heller.
Mrs. Napolitano. Please.
STATEMENT OF HON. DEAN HELLER, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEVADA
Mr. Heller. Thank you. First of all, thank you, Madame
Chairwoman, for holding this hearing. I thank acting Ranking
Member--I will be the acting Ranking Member here in a few
minutes--for the hearing today on the Lower Colorado Multi-
Species Conservation Act. I introduced this legislation to
authorize the Department of Interior to manage and implement
the Lower Colorado River Multi-Species Conservation Program and
authorize sufficient funding to meet the program's obligations
without creating any new Federal spending.
The Colorado River water and power resources supplies more
than 20 million people in the lower basin states of Nevada,
Arizona and California. The Department of the Interior agencies
as well as various non-Federal stakeholders and water and power
agencies along the Colorado River formed a multi-regional
partnership to develop the Lower Colorado River Multi-Species
Conservation Program.
The goal of this program is to protect sensitive,
threatened and endangered fish and wildlife species and their
habitat while providing sufficient environmental benefits and
reliable water and power supply along the Colorado River. This
legislation achieves several necessary steps to further codify
the responsibilities of this program and the roles of the
various stakeholders.
The legislation provides a specific authorization of
appropriations sufficient for the Secretary to meet specified
obligations under the program documents. Obtaining specific
authorization assures the long-term availability of the
funding. The legislation provides continuity of the program by
ensuring that it is fully implemented, enforceable, and that it
remains viable for the next 50 years.
Finally, this legislation enjoys the support from members
of the Congress from Nevada, Arizona and California,
demonstrating that this program is important to the long-term
water supply needs of all three states. Again, Madame
Chairwoman and Ranking Member, thank you for holding this
important hearing. I look forward to the testimony from our
witnesses. I want to welcome everybody that is here. Thank you
very much for your hard work and effort so that we can be here
today and those in the audience who also participated in the
hearings to produce this program. So I will yield back the
balance of my time. Thank you.
Mrs. Napolitano. Thank you, sir, for your opening
statement, and now I would like to recognize Mr. Mitchell for
his opening statement.
STATEMENT OF THE HON. HARRY MITCHELL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Mitchell. Thank you, Madame Chair. I would like to
thank you and members of this subcommittee for holding today's
hearing on House Bill 2515, the Lower Colorado River Multi-
Species Conservation Program Act, and for allowing me to take
part in it. I also would like to thank Representative Dean
Heller, and I am grateful for his partnership on this important
piece of legislation, and finally I want to thank a
distinguished former member without whose help H.R. 2515 would
not be before us today, and that is Congressman Jay Rhodes. He
has been a tireless advocate, and I am grateful for his
efforts.
From the start, H.R. 2515 has been a bipartisan bill, and
to me that is the best way to legislate. This bill has been
more than a decade in the making, and I believe that it is a
worth bipartisan compromise. The bill provides for a long-term,
comprehensive, cooperative program to protect 26 endangered,
threatened and sensitive species on the lower Colorado River,
and to provide assurances to the affected water and power
agencies of Arizona, California and Nevada, that their
operations may continue upon compliance with the requirements
of this program.
The program will create over 8,100 acres of riparian, marsh
and backwater habitat for protected species and include plans
for the rearing and stocking of more than 1.2 million fish to
augment populations of two endangered fish covered by this
program. The program will operate on and around the Colorado
River from Lake Mead to the U.S./Mexico border but like most
water issues related to the Colorado, its effects will be felt
throughout Arizona and across the southwest United States.
The program's cost will be divided 50-50 between the
Federal government and the non-Federal participants. California
participants will pay 50 percent of the non-Federal share, and
Arizona and Nevada will participate and will pay 25 percent of
the non-Federal share. I look forward to today's hearing and to
continue working with this committee on this important piece of
legislation, and I yield back the balance of my time. Thank
you.
[The prepared statement of Mr. Mitchell follows:]
Statement of The Honorable Harry Mitchell, a Representative in Congress
from the State of Arizona, on H.R. 2515
Thank you Madam Chairwoman.
I would like to thank you and the members of this subcommittee for
holding today's hearing on H.R. 2515, the Lower Colorado River Multi-
Species Conservation Program Act--and for allowing me to take part in
it.
I would also like to thank Rep. Dean Heller. I am grateful for his
partnership on this important legislation.
Finally, I want to thank a distinguished former Member--without
whose help H.R. 2515 would not be before us today: Congressman Jay
Rhodes. He has been a tireless advocate, and I am grateful for his
efforts.
From the start, H.R. 2515 has been a bipartisan bill, and to me
that is the best way to legislate. This bill has been more than a
decade in the making, and I believe it is a worthy, bipartisan
compromise.
The bill provides for a long-term, comprehensive, cooperative
program to protect 26 endangered, threatened and sensitive species on
the Lower Colorado River--and to provide assurances to affected water
and power agencies of Arizona, California and Nevada that their
operations may continue upon compliance with the requirements of this
program.
The program will create over 8100 acres of riparian, marsh and
backwater habitat for protected species, and includes plans for the
rearing and stocking of more than 1.2 million fish to augment
populations of two endangered fish covered by the program.
The program will operate on and around the Colorado River from Lake
Mead to the U.S.-Mexico border, but like most water issues relating to
the Colorado, its effects will be felt throughout Arizona, and across
the southwestern United States.
The program's cost will be divided 50-50 between the federal
government and the non-federal participants. California participants
will pay 50 percent of the non-federal share, and Arizona and Nevada
participants will pay 25 percent of the non-federal share.
I look forward to today's hearing, and to continuing to work with
this committee on this important legislation.
______
Mrs. Napolitano. Thank you, sir. Mr. Udall.
STATEMENT OF THE HON. TOM UDALL, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW MEXICO
Mr. Udall. Thank you very much, Chairwoman Napolitano, and
I guess Ranking Member McMorris Rodgers is going to be here at
some point. Thank you for holding this hearing on H.R. 1970,
the Northwestern New Mexico Rural Water Projects Act. This
important legislation will have a lasting impact on my
constituents in northwestern New Mexico, the Jicarilla Apache
Nation and the Navajo Nation.
The bill addresses the basic need for water and sanitation
that I believe is the right of every individual and which are
long overdue in this region of New Mexico. It also expressly
ratifies the Navajo Nation's water rights and eliminates
uncertainty over how those rights may impact others. I am
pleased to have had the opportunity to participate in the
careful negotiations that led to the introduction of this bill,
and I am thankful for your interest in building on these
efforts to make these projects a reality.
Water tenure has long been a volatile issue in the arid
southwest. As communities in the region have grown, the strain
on water resources has increased. It is the responsibility of
the basin states and the southwestern tribal nations to
formulate working agreements on how this very precious resource
is utilized. The Northwestern New Mexico Rural Water Projects
Act will ratify one such accord, the San Juan River Settlement
Agreement.
This agreement was signed by the Navajo Nation and the
State of New Mexico on April 19, 2005, and was the culmination
of years of work. The settlement agreement seeks to provide for
the development of a rural water system to address the water
needs of numerous New Mexicans, many of them members of the
Navajo Nation and the Jicarilla Apache Nation. H.R. 1970 would
ratify this agreement, thereby resolving the water rights of
the Navajo Nation, the largest Federally recognized tribe in
the United States.
It would also provide a water supply for Gallup, New
Mexico, as well as recognize and authorize existing uses of the
San Juan River Basin Water. In exchange for relinquishing some
of their claims to water from the San Juan River Basin, the
Navajo Nation will benefit from water development projects
including the Navajo Gallup project and the Navajo Nation
Municipal Pipeline.
This much needed infrastructure will allow for efficient
and reliable municipal and agricultural water deliveries.
Additionally, the projects will be implemented in a manner
consistent with environmental laws and existing agreements
which ensure compliance with the ESA. Incredibly, even now in
the 21st century more than 70,000 Navajos must still haul water
daily for residential use. These water projects will go a long
way toward rectifying this unacceptable situation.
I understand that some have raised concerns regarding
provisions in the bill relating to New Mexico's apportionment
of the Colorado River. I am pleased that in the late spring of
2006, the upper Colorado River Basin and Commission, which
includes representatives from all upper basin states
unanimously endorsed the Navajo Water Settlement. This river is
of vital importance to populations throughout the southwest.
I am well aware that stipulations in the bill relating to
the Colorado River have the potential to impact all of the
basin states. It is my hope that the testimony you will hear
today from the distinguished panel will bring valuable insight
on this issue and help allay those concerns. Please know I am
committed to working with the Subcommittee and the Subcommittee
Chairman to ensure that this legislation is in compliance with
existing compacts among basin states.
The Navajo Nation and the State of New Mexico and many
other residents of northwestern New Mexico put a tremendous
amount of effort into reaching an agreement that will provide a
more secure future for many vulnerable communities. For years
these groups have worked to finalize this agreement. The next
step necessary is passing legislation to finalize the agreement
and begin the implementation of long overdue water distribution
projects.
Senator Bingaman, Senator Domenici and I have introduced
companion legislation to bring about this step, and I look
forward to working with all of you to bring this hard work to
fruition, and let me thank once again the Chairwoman. I know
she is a real advocate of the Colorado River and California's
water rights, and I know she very much understands these issues
and I am very excited about her bringing her attention to these
issues. Thank you, Madame Chair, and I yield back.
Mrs. Napolitano. Thank you, sir. I appreciate the comments,
and we will proceed to hear from our witnesses. We have two
panels today. The first panel will testify on H.R. 2515, and
the second panel will testify on H.R. 1970. Each one of the
panelists will be introduced just before they testify. Once the
testimony is concluded we will begin a question and answer
period of those witnesses prior to proceeding to the next
panel.
All your prepared statements, witnesses, will be entered
into the record, and you are asked to summarize your high
points so as not to waste time because if you read sometimes it
takes longer and you cannot get to the meat of what you are
trying to bring to this committee, and please limit your
remarks to five minutes, the little timer, and I do hold people
to five.
We will be using the timer of course. It applies to
questions also. Five minutes of questions and answers from each
of the members will be allowed. If there is time, we will have
an additional second round or more as necessary. I would like
to begin with our first panel to testify on H.R. 2515, the
Lower Colorado River Multi-Species Conservation Act.
First we have Robert Johnson, Commissioner of Bureau of
Reclamation. Welcome again, Commissioner, and you know you are
on the hot seat again. Two, Susan Bitter Smith, President of
the Central Arizona Project Board of Phoenix. Welcome. George
Caan, Chairman of the Lower Colorado River Multi-Species
Conservation Program from Las Vegas, Nevada. Welcome.
Gerald Zimmerman, Executive Director of the Colorado River
Board of California in Glendale, California. Welcome. And
finally, Kara Gillon, Senior Staff Attorney with Defenders of
Wildlife in Albuquerque, New Mexico. If you will start, Mr.
Johnson, we will begin with you.
STATEMENT OF ROBERT JOHNSON, COMMISSIONER,
BUREAU OF RECLAMATION, WASHINGTON, D.C.
Mr. Johnson. Thank you, Madame Chairwoman. It is a pleasure
to be here to address you and members of the Subcommittee on
this bill. While the Department of Interior has clear authority
to administer this program under existing statutes we also
understand the interests of our partners in seeking this
legislation. The Department supports the Lower Colorado River
Multi-Species Conservation Program as well as the intent of
H.R. 2515 to further this program.
There are, however, some concerns about language in
sections 2, 4[b], 5[c] and 5[d] of the bill, and I will quickly
summarize our concerns in that regard. Quickly I would just say
that the MSCP program is a very important program for the three
states that are delivered water supplies from the Colorado
River. There are millions of people and hundreds of thousands
of acres of irrigated farmland that are dependent on the river,
and the multi-species plan provides certainty for the long-term
use of those important water supplies.
Quickly to summarize the concerns that we have. First,
section 2 of the bill provides a definition of the lower
Colorado River. That definition that is in the bill does not
exactly coincide with the definition that is included in some
of the program documents. We believe that the bill ought to be
modified to be consistent with those documents. We think that
this is a minor technical issue but nevertheless something that
can cause confusion in the future if we have different
definitions.
Next the Administration cannot support language in section
4[b] of this bill allowing the Secretary to invest appropriated
monies that are not required to meet current program
expenditures. In addition, we are concerned about section 5[c]
which addresses judicial review of the program documents. We
are advised that this provision could expand Federal litigation
exposure in significant respects and set unacceptable
precedents for the United States.
Last, section 5[d] which seeks an explicit exemption from
the Federal Advisory Committee Act is not necessary as the
program was determined by the Director of the U.S. Fish and
Wildlife Service to be an ecosystem recovery and implementation
team pursuant to the ESA, and as a result is already exempt
from that Act.
We appreciate that there has been some progress in
discussions with our partners on section 5[c] of the Act, and
we look forward to continuing to try to work through these
issues with our partners. The lower Colorado River is a
critical resource to citizens of the west. Maintaining
compliance with the ESA, and avoiding water supply conflicts
that we have seen in other basins in the west is critical to
the Department of Interior.
Reclamation will continue to support the Lower Colorado
Multi-Species Conservation Program and looks forward to working
with the Subcommittee and the bill's sponsors on this issue.
Madame Chairwoman, thank you again for allowing me to testify.
This concludes my oral remarks.
[The prepared statement of Mr. Johnson follows:]
Statement of Robert Johnson, Commissioner, U.S. Bureau of Reclamation,
U.S. Department of the Interior, on H.R. 2515
Madam Chairwoman and members of the Subcommittee, my name is Robert
Johnson and am here today to present the views of the Department of the
Interior on H.R. 2515, a bill to authorize a habitat conservation
program on the lower Colorado River in the States of Arizona,
California, and Nevada.
H.R. 2515 authorizes the Lower Colorado River Multi-Species
Conservation Program (LCR MSCP) and addresses issues associated with
implementation of the program, including Colorado River water use,
investment of appropriated funds, and the enforceability of program
documents. The Lower Colorado River is a critical resource to citizens
of the southwest. Maintaining compliance with the Endangered Species
Act and avoiding water supply conflicts that have been occurring in
other areas of the West is critical to the Department. The Department
supports the LCR MSCP as well as the intent of H.R. 2515 to further
this program. However, the Department remains concerned about language
in Section 2, 4(b), 5(c), and 5(d), which I will discuss below.
The LCR MSCP was developed through a collaborative partnership with
State leaders, local stakeholders and the Administration. This
innovative program addresses the needs of threatened and endangered
fish and wildlife on the lower Colorado River while assuring greater
reliability of water deliveries and hydropower production. By meeting
the needs of fish and wildlife listed under the Endangered Species Act,
as well as preventing the need to list additional species, the plan
provides greater certainty of continued water and power supplies from
the river for Nevada, California and Arizona--and is designed to allow
future water transfers within or among water users for a 50-year
period.
Reclamation began work to develop the LCR MSCP in 1997 and the
program was formally approved and adopted by Secretary Norton in 2005.
Under existing authorities, Reclamation has been implementing
activities that are similar in nature to those described in this
program since 1997 when the U.S. Fish and Wildlife Service issued a
Biological Opinion for southwestern willow flycatcher, bony tail chub,
Yuma clapper rail and razorback sucker fish. In 2001, Reclamation
adopted interim Surplus Guidelines that define when water operations
can provide surplus water to water users in the Lower Colorado River
Basin, and the Biological Opinion for that action is being implemented
through the LCR MSCP. With these and other actions, Reclamation has
been meeting the requirements of the Endangered Species Act (ESA) for
over a decade.
Reclamation has spent a total of $9.5 million in FY2004 and FY2005,
and spent $13 million in FY2006 from both Federal and non-Federal
sources pursuant to the Program's Funding and Management Agreement with
non-Federal entities. The LCR MSCP Steering Committee supports a budget
of over $16 million for FY 2007. In addition to establishing over 270
acres of new habitat along the Colorado River, Reclamation has stocked
46,079 razorback suckers and 14,836 bony tail chub into the lower
Colorado River since 2004. A significant amount of money has been spent
on the research and monitoring needed to develop a sound scientific
foundation for this 50-year program. Accomplishment reports for FY2004
and FY2005 have been approved by the MSCP Steering Committee, reviewed
by the U.S. Fish and Wildlife Service, and found to be in compliance
with the LCR MSCP ESA Section 10 Permit. The FY2006 report has been
approved by the Steering Committee and U.S. Fish and Wildlife Service.
All reports can be found on Reclamation's website at www.lcrmscp.gov.
In Reclamation's FY2008 budget, which is awaiting Congressional
approval, $7 million has been identified from Federal funding for the
program, with a $7 million match from non-Federal partners.
Since presenting testimony on H.R. 5180 last year, the Department
is pleased to report progress toward resolving issues surrounding
section 3(b). As written, this Section would direct the Secretary to
enter into an agreement with the States of Arizona, California and
Nevada providing for the use of Colorado River water specifically for
habitat creation and maintenance purposes. The Department believes that
through existing contract terms, willing seller transactions, and
current policies, Reclamation can utilize Colorado River (and non-
Colorado River) water to implement the program. However, Reclamation
has made progress with our funding partners in the Lower Basin States
to develop an agreement acceptable to all parties on the use of
Colorado River water for program purposes. Such an agreement could
facilitate program implementation, and we look forward to continuing
productive efforts with our partners on this proposed agreement.
We do have a couple of concerns with provisions contained in H.R.
2515. The geographic definition of the Lower Colorado River in section
2 should be clarified to match that contained in the MSCP Program
Documents. The Administration cannot support the language in section
4(b) of this bill allowing the Secretary to invest appropriated moneys
that are not required to meet current program expenditures. Investing
appropriations provides additional monies to finance a governmental
purpose outside of the normal appropriations process.
We are also concerned about section 5(c), which addresses judicial
review of program documents. We note that this provision has been
modified from the language introduced in the last session of Congress,
and that language has been added clarifying that the United States
would not be liable for claims for money damages. Nevertheless, we have
been advised by the Department of Justice and we are concerned that
this provision could expand Federal litigation exposure in significant
respects and open the door for judicial intrusion into administrative
decision making. We would appreciate the opportunity to continue to
work with the committee to address our concerns regarding section 5(c).
Section 5(d) seeks an explicit exemption from the Federal Advisory
Committee Act. The Department believes that this exemption is not
necessary as the program was determined by the Director of the U.S.
Fish and Wildlife Service to be an Ecosystem Recovery and
Implementation Team (ECRIT) pursuant to section 4(f)(2) of the ESA,
thereby making the LCR MSCP Steering Committee exempt. Therefore, we
believe section 5(d) is superfluous and we recommend deleting it.
The Department already has clear authorities to administer this
program under existing statutes, and Reclamation began actively
implementing the full LCR MSCP program in 2005. Through implementation
of this program, the likelihood of a water conflict on the lower
Colorado River is reduced.
The Department supports the LCR MSCP and will continue to work with
interested stakeholders that seek to enhance the program. Thank you for
the opportunity to comment on this legislation. We look forward to
working with you on the various concerns we have. I am happy to take
any questions.
______
Mrs. Napolitano. Thank you, sir. Ms. Susan Bitter Smith.
STATEMENT OF SUSAN BITTER SMITH, PRESIDENT,
CENTRAL ARIZONA PROJECT BOARD, PHOENIX, ARIZONA
Ms. Bitter Smith. Madame Chairwoman, Congressman Heller,
Congressman Mitchell, Congressman Udall, I too am pleased to be
here on behalf of the Central Arizona Water Conservation
District.
Mrs. Napolitano. Can you pull the mic a little closer
please?
Ms. Bitter Smith. I will do that. Usually my children say
they can hear me from any distance in the room. The CAP, as you
know, is operated by the Central Arizona Water Conservation
District, and we have an aqueduct system that stretches 330
miles from Lake Havasu all the way along the Colorado River to
central and southern Arizona.
In 1994, users of water and power from the lower Colorado
River began to become concerned about our ability to continue
to rely on the river's resources in the face of growing
concerns about the endangered species, and as a result we have
now spent the last 10 plus years working together with Federal
and non-Federal participants to complete the documents now to
put the Lower Colorado River Multi-Species Conservation Program
into place.
The Secretary approved the program in April of 2005, and of
course in August of that year the White House recognized the
program as an exemplary environmental initiative. Fifty Federal
and non-Federal entities have come together to craft and fund a
program that protects 26 endangered, threatened and sensitive
species, and provides for the acquisition, creation and
maintenance of over 8,000 acres of high quality habitat and
then provides for the rearing and stocking of hundreds of
thousands of two species of endangered fish.
Before the Federal government would approve the program,
however, the non-Federal participants were required to agree
unconditionally to fund half of the total program, which is a
cost of about $626 million, indexed for inflation over 50
years. The CAP of course is one of those funding mechanisms. In
return for this commitment, non-Federal water and power users
were granted a Federal permit under the ESA Act that allows for
the essential functions as water and power providers to
continue as long as we comply with the program requirements.
The Federal government has agreed to fund the 50 percent of
program costs, and we do appreciate that commitment but we
believe it is absolutely necessary that appropriations for the
Federal share be explicitly authorized by Congress, hence the
reason for this Act, particularly since the program must
continue to be carried on long after all of us are out of
office.
H.R. 2515 provides necessary authorization for the Federal
share of program costs and brings certainty and stability to
the program in other ways. First, it requires Congress to
authorize the Secretary to manage and implement the program,
and there are documents that all of the parties have prepared
and signed evidencing a commitment to the program.
Second, the bill directs and authorizes the Secretary to
enter into an agreement with the lower basin states about how
we will provide water for the MSCP. Without this explicit
authorization, the law of the river may preclude us and other
water providers from some of the water management activities we
believe are very essential and need to be necessary.
The provisions of the bill also help protect expectation of
the parties. The CAP strongly supports H.R. 2515, and we very
much appreciate the leadership by the Arizona, California,
Nevada delegations in bringing the bill to this point in the
process. We especially thank Mr. Heller for his sponsorship and
you, Madame Chairwoman, for allowing this bill to come to
committee. I especially want to commend the Arizona delegation
and my own Member of Congress, Mr. Mitchell, for his leadership
on this issue.
H.R. 2515 is critical to our ability to continue to provide
our water services to our customers. CAP is the lifeline for
the State of Arizona, and we want to make sure that continues
to be the case. We urge the Subcommittee to approve this bill.
[The prepared statement of Ms. Bitter Smith follows:]
Statement of Susan Bitter Smith, President, Board of Directors,
Central Arizona Water Conservation District, on H.R. 2515
I am pleased to present testimony on behalf of the Central Arizona
Water Conservation District (``CAWCD'') in support of H.R. 2515, the
Lower Colorado River Multi-Species Conservation Program Act. H.R. 2515
protects and implements the Lower Colorado River Multi-Species
Conservation Program (``MSCP''). The MSCP is a comprehensive,
cooperative effort among 50 federal and non-federal entities in
Arizona, California and Nevada to protect 26 endangered, threatened and
sensitive species along the Lower Colorado River and to provide
assurances to the non-federal entities involved that their essential
water and power operations on the River may continue if they comply
with the Program's requirements. The participants in the Program
include The Metropolitan Water District of Southern California, the
Southern Nevada Water Authority and the Central Arizona Project.
CAWCD is the Arizona political subdivision responsible for
operating the Central Arizona Project (``CAP''), and is the underwriter
of Arizona's share of the costs of the MSCP. The CAP is a massive water
delivery project, constructed under the authority of the Colorado River
Basin Project Act of 1968, to enable Arizona to make full use of its
Colorado River entitlement. In a normal water supply year, the CAP will
deliver about 1.5 million acre-feet of Colorado River water to the
citizens of Arizona, at the rate of 3,000 cubic feet of water per
second, almost two billion gallons per day. The CAP is the largest
single source of renewable water supplies in the State of Arizona,
serving 80 percent of the State's water users and taxpayers, including
the Phoenix and Tucson metropolitan areas.
CAWCD strongly supports H.R. 2515 because the bill assures
continued compliance by the United States with the requirements of the
MSCP. That, in turn, provides protection to the non-federal
participants in the Program, who, like CAWCD, have agreed to provide
substantial amounts of non-federal monies for the conservation of
endangered species in return for receiving a permit under the
Endangered Species Act for their water and power operations.
The Secretary of the Interior approved this 50-year conservation
initiative on April 2, 2005. The overall Program costs, $626 million,
will be adjusted for inflation, with the three lower basin states
paying 50 percent of the costs and the federal government paying 50
percent. Of the states' share, Arizona and Nevada will each pay 25
percent, while California will pay 50 percent. In return for their
funding commitments, the non-federal participants have received a 50-
year permit, issued by the U.S. Fish and Wildlife Service under Section
10 of the Endangered Species Act, which authorizes their existing and
future water and power operations to continue. All of the Arizona
participants have made a financial commitment to the MSCP, but CAWCD
has agreed to guarantee payment of Arizona's share of the Program
costs.
Although the MSCP is already in effect, this bipartisan legislation
has been introduced by Congressman Dean Heller of Nevada to protect the
substantial financial commitments that the non-federal parties are
making to species protection. The bill specifically authorizes federal
appropriations to cover the federal share of the Program costs, directs
the Interior Secretary to manage and implement the Program in
accordance with the underlying Program Documents, and provides a waiver
of sovereign immunity to allow the non-federal parties to enforce the
agreements they have entered into with the federal agencies, should
that become necessary. The bill does not allow money damages.
The bill is co-sponsored by Congressmen Harry Mitchell, Trent
Franks, John Shadegg and Rick Renzi of Arizona, Congressman Jon Porter
and Congresswoman Shelley Berkley of Nevada, and Congressmen Ken
Calvert and George Radanovich of California. A companion bill has been
introduced in the Senate (S. 300) by Senators Jon Kyl of Arizona,
Dianne Feinstein of California, and Harry Reid and John Ensign of
Nevada. Since the time that similar legislation was introduced last
year, two significant developments have occurred. First, subject to
final review and approval within the Interior Department, the non-
federal parties have reached agreement with the United States on an
agreement to provide Colorado River water for MSCP purposes, as
authorized by Section 3(b) of the bill. Second, Section 5(b) of the
bill, which relates to the impact of future legislative actions on the
MSCP, has been modified and narrowed significantly to meet the concerns
of some members.
The MSCP is a worthy and important program for protection of
endangered species. It provides for the creation of over 8,100 acres of
riparian, marsh and backwater habitat for the species covered by the
Program, and includes plans for the rearing and stocking of over 1.2
million fish to augment populations of two endangered fish covered by
the Program. The MSCP also provides for maintenance of existing, high-
quality habitat, and a research, monitoring and adaptive management
effort to ensure that Program elements are effective in helping covered
species. At the White House Conference on Cooperative Conservation in
August 2005, the MSCP was recognized as an ``Exemplary Initiative.''
Implementation of the MSCP is critical to the long term needs of those
of us in the southwest that depend on the Lower Colorado River for a
major portion of their water and power. As the Secretary said in her
Record of Decision approving the Program--
``The importance of the Colorado River to the southwestern
portion of the United States cannot be overstated: the Colorado
is the lifeblood of the southwest. The Colorado River provides
water and power to over 20 million people (in such cities as
Los Angeles, San Diego, Las Vegas, Phoenix and Tucson),
irrigates over 2 million acres, and generates up to 10 billion
kilowatt hours of electricity annually.''
The MSCP represents a fifty-year commitment by all of the parties
involved. It is essential that that commitment be fully and faithfully
met. H.R. 2515 will help ensure that that occurs.
______
Statement of Susan Bitter Smith, President, Board of Directors,
Central Arizona Water Conservation District, on H.R. 1970
I am pleased to present this statement on behalf of the Central
Arizona Water Conservation District (``CAWCD'') regarding H.R. 1970,
the Northwestern New Mexico Rural Water Projects Act. CAWCD is the
Arizona political subdivision responsible for operating the Central
Arizona Project. The Central Arizona Project is a massive water
delivery project, constructed under the authority of the Colorado River
Basin Project Act of 1968, to enable Arizona to make full use of its
Colorado River entitlement. In a normal water supply year, the Central
Arizona Project will deliver about 1.5 million acre-feet of Colorado
River water to the citizens of Arizona, at the rate of 3,000 cubic feet
of water per second, almost two billion gallons per day. The Central
Arizona Project is the largest single source of renewable water
supplies in the State of Arizona, serving 80 percent of the State's
water users and taxpayers, including the Phoenix and Tucson
metropolitan areas.
CAWCD cannot support this bill as introduced because (1) it fails
to resolve the Navajo Nation's claims to the Lower Colorado River and
Little Colorado River in Arizona and (2) it fails to resolve litigation
filed by the Nation challenging Interior Department initiatives that
are vital to the Central Arizona Project and other Colorado River water
users in the Lower Basin. The legislation also fails to address
critical issues related to its potential impact on the Law of the
Colorado River. All of these matters must be addressed before the bill
is permitted to move forward.
This bill would authorize a settlement of the water rights claims
of the Navajo Nation to the San Juan River in New Mexico and also
provide funding for projects to deliver San Juan water to Window Rock
and Gallup. The San Juan River is a tributary to the Colorado River,
and the bill affects the accounting for Colorado River water required
by the 1922 Colorado River Compact and the United States Supreme
Court's 1964 Decree in Arizona v. California, the decision that
confirmed that Arizona is entitled to 2.8 million acre feet of water
each year from the Lower Colorado River. Most of that water is
delivered to central and southern Arizona through the Central Arizona
Project. While the New Mexico bill would affect Arizona's Colorado
River entitlement, it fails to resolve the claims of the Navajo Nation
to Arizona's water supplies or to require, as it should, that those
claims be settled before the Nation receives the benefits of any water
rights settlement.
The Navajo Nation has asserted that it has rights to water from the
Colorado River that are superior to the rights of the Central Arizona
Project. The Nation has sued the United States in federal district
court in Phoenix in an effort to compel the Secretary of the Interior
to assert those rights on the Nation's behalf. Unless and until the
Secretary takes steps to resolve the Nation's claims to the Colorado
River, the Nation seeks to stop the Secretary from implementing
important programs put in place to better manage the water supplies of
the Lower Colorado River for the benefit of the Central Arizona Project
and others.
In a separate action, the Navajo Nation has also sought to prevent
the required court approval of another Indian water rights settlement
that is vital to the citizens of central Arizona, a comprehensive water
rights settlement with the Gila River Indian Community. That
settlement, which was decades in the making, was authorized by the
Arizona Water Settlements Act of 2004, but if the Navajos succeed in
their challenge, all of the Arizona water settlements authorized by
that act, including the Gila River settlement, will fail. Since the
water rights of the Navajo Nation are not affected by the Gila River
settlement, as a lower court has already found, one can only conclude
that the Navajo Nation is seeking to hold the Gila River settlement
hostage until its own water rights claims are resolved.
These actions by the Navajo Nation lead us to conclude that we
could support authorization of a New Mexico settlement with the Navajo
Nation only if an Arizona settlement with the Nation is also concluded
and included in the authorizing legislation. While New Mexico may
object to this, it shouldn't. After all, New Mexico demanded and
received significant benefits, in the form of project authorizations
and money for that state, in the Arizona Water Settlements Act of 2004.
From a public policy perspective, an Arizona settlement of the
Navajo Nation's water rights claims should proceed hand in glove with a
New Mexico settlement. As it stands, the New Mexico bill fails to deal
comprehensively with the Navajos' claims to the river systems that
cross or border the Navajo Reservation. The Navajo Reservation is the
largest Native American reservation in the United States. It occupies
parts of three states, but by far the largest part of the Reservation,
as well as the greatest share of the Reservation population, is
situated in Arizona. Within Arizona, the northwestern portion of the
Navajo Reservation is near the mainstream of the Lower Colorado River,
and the Little Colorado River traverses the southern portion of the
Reservation. If anything, priority should be given to settlement of the
Nation's claims to the waters of these rivers. Including a settlement
of the Nation's Arizona claims in the New Mexico bill would go a long
way toward fixing the public policy problems associated with the
current version of this legislation.
CAWCD has long supported the comprehensive settlement of Indian
water rights claims. Our organization has participated in a number of
such settlements, including most recently, the settlement of the claims
of the Gila River Indian Community, the largest Indian water rights
settlement in Arizona's history. While successfully crafting a
settlement agreement is never easy, we are fully committed to doing the
hard work necessary to achieve an Arizona settlement with the Navajo
Nation, and to accomplishing that in a timely way, so that
congressional authorization of an Arizona settlement can be included in
what is now a New Mexico only bill.
We look forward to the opportunity to work with you, the State of
New Mexico, and the Navajo Nation to settle the claims of the Navajo
Nation to the San Juan and the Lower and Little Colorado River basins,
and to prepare a comprehensive settlement act that addresses the needs
of all affected parties.
______
Response to questions submitted for the record by Susan Bitter Smith,
President, Board of Directors, Central Arizona Water Conservation
District, on H.R. 2515
(State Representatives) Has there been any effort to work with
entities on the other side of the Mexican border to ensure
successful recovery for the river system, not just the U.S.
side?
Answer: Yes.
The United States is authorized by Section 8 of the Endangered
Species Act to work cooperatively with other nations on species
conservation efforts. The International Boundary and Water Commission
1 has adopted Minute 306 to the 1944 Mexican Water Treaty in
order to establish a framework for cooperation between the United
States and Mexico in the preservation of the riparian and estuarine
ecology of the Colorado River in Mexico. These efforts are on-going and
will continue.
---------------------------------------------------------------------------
\1\ The IBWC was established under the 1944 U.S.-Mexico Water
Treaty between the United States and Mexico regarding the Colorado
River and is made up of representatives of the Republic of Mexico and
the U.S. State Department.
---------------------------------------------------------------------------
Additionally, independent of these efforts, the Central Arizona
Water Conservation District has been working with other stakeholders,
including environmental groups, on a plan to operate the Yuma Desalting
Plant (``YDP'') while protecting the area commonly known as the Mexican
Delta. The group working on this matter issued a white paper in 2005
that contains a blue print for operating the YDP while protecting the
habitat contained in the Cienega de Santa Clara in Mexico.
The MSCP is an effort to make the operations of the Lower Colorado
River within the United States comply with the Endangered Species Act.
The needs of endangered species in Mexico are being addressed by other
programs outside of the MSCP.
(State Representatives) Is it possible that neglect of habitat on the
Mexican side could wipe out attempts by the MSCP to stabilize
habitat and protect and recover species?
Answer: No.
The habitat needs of the species covered by the program were
assessed independently of the number of individuals of the species or
habitat that may exist in the Republic of Mexico and independently of
actions that Mexico might or might not take to protect species or
habitat located there. Sufficient habitat will be acquired and other
conservation measures will be put into place in the United States under
the MSCP to meet the needs of all of the species covered by the
program. Thus, covered species will be protected and conserved whether
or not any conservation actions are taken by the Republic of Mexico to
protect members of the species or habitat that are located there.
The Environmental Impact Statement (``EIS'') prepared in connection
with the MSCP analyzed the impacts of the MSCP on environmental
resources in Mexico as well as the obligations of the United States
under the 1944 Treaty with Mexico regarding the Colorado River. The EIS
concluded that no substantial adverse environmental impacts would occur
in Mexico and that no reduction in deliveries of Colorado River water
to Mexico would occur as a result of implementation of the MSCP. If
anything, the MSCP should improve conditions for species that reside on
both sides of the border by providing substantial amounts of new
habitat for those species.
(State Representatives) Can you please discuss the specifics of the
proposed federal-state water use agreement referenced in
section 3(b) of the bill?
Answer: Section 3(b) provides the authorization and direction
necessary for the Secretary of the Interior to enter into an agreement
with the three Lower Basin States regarding how to provide water from
the Lower Colorado River for MSCP purposes, but does not alter existing
rights to use Colorado River water.
Under the Boulder Canyon Project Act of 1928 and the United States
Supreme Court's decision and decree in Arizona v. California, a
contract with the Secretary of the Interior is required for the use of
water from the Lower Colorado River. Reclamation's Lower Colorado
Regional Director enters into water delivery contracts on behalf of the
Secretary. The water delivery contract constitutes an authorization to
use Colorado River water in the Lower Basin. These contracts define the
type of water use permitted by the contract, either for domestic or
agricultural purposes. The use of Colorado River water for
environmental purposes has been called into question from time to time.
Because of this, Section 3(b) of H.R. 2515 provides explicit
authorization for the Secretary to enter into an agreement with the
Lower Basin States to provide Colorado River water for implementation
of the MSCP.
The agreement does three important things. First, it permits the
Secretary to apply Colorado River water to the purposes of the MSCP.
Second, it specifies how the Secretary is to account for water that is
used for MSCP purposes. Third, the agreement permits the Secretary to
manage Colorado River water for other MSCP purposes, including
providing marsh, backwater and other habitat.
Reclamation accounts for the diversion and consumptive use of water
from the Lower Colorado River. Reclamation does not report as a
diversion or consumptive use the natural depletion of Colorado River
water by non-irrigated phreatophyte vegetation. Under the MSCP, some of
this vegetation will be replaced with higher quality, native
vegetation. The new, native vegetation will be using water previously
used by the non-native vegetation, and under the agreement, the water
use will not be treated as a new diversion or consumptive use of Lower
Colorado River water. If additional water is needed for MSCP purposes,
it will be acquired by lease or purchase from willing sellers.
Subject to final review and approval within the Interior
Department, the non-federal parties have reached agreement with the
United States on the agreement to provide Colorado River water for MSCP
purposes, as authorized by Section 3(b) of the bill. However,
representatives of the Interior Department have advised us that the
United States will not be able to execute the agreement unless and
until the Congress enacts H.R. 2515 or the companion Senate bill (S.
300). Thus, passage of the bill is critical to the success of the MSCP.
(State Representatives) Have the states reached agreement on how much
water will be dedicated to the program?
Answer: Yes.
The Habitat Conservation Plan for the MSCP estimates that a little
over 39,000 acre-feet per year will be needed for MSCP purposes;
however, no new consumptive use of Colorado River water will be
permitted. Instead, the water needed for MSCP purposes will come from a
reduction in water use by removal of existing non-native vegetation,
the use of prior existing rights to water that run with the land
acquired for MSCP purposes, or the acquisition of additional water
rights, as necessary, from willing sellers. The MSCP participants have
allocated $50,000,000 of the MSCP funding to the costs of water
acquisition.
(State Representatives) How does the MSCP address non-native species?
Answer: The conservation measures in the Habitat Conservation Plan
for the MSCP include several elements that address non-native species,
including maintenance of existing habitat, creation of new habitat, and
population enhancement measures.
One of the goals of the MSCP will be to maintain and improve
existing habitat for covered species. This could include protecting
such habitat from invasive, non-native species, and removing
undesirable species such as salt cedar and Arundo. A $25,000,000 fund
will be established early in the program to maintain existing, high
quality habitat.
New habitat will also be created for covered species. This will
include fuel load reduction (to reduce the risk of fires), removal of
invasive, non-native flora and fauna, and replacement with high quality
habitat types, such as cottonwood-willow. The Habitat Conservation Plan
calls for the creation of 5,940 acres of cottonwood-willow habitat,
1,320 acres of honey mesquite habitat, 512 acres of marsh habitat, and
360 acres of backwater habitat. The participants in the MSCP have
allocated over $143,000,000 to the creation of new habitat for covered
species.
Finally, population enhancement measures will be used to control
non-native species and to improve the chances for survival and
propagation of covered species. These activities would include
controlling piscivorus fish and non-native amphibians in advance of
releasing covered native fish into created backwaters. Other population
enhancement activities could include controlling brown-headed cowbirds
to reduce the adverse effects of nest parasitism on covered species.
______
Mrs. Napolitano. Thank you very much, Ms. Smith. George
Caan, Chairman of the Lower Colorado River Multi-Species
Conservation Program, Las Vegas.
STATEMENT OF GEORGE CAAN, CHAIRMAN, LOWER COLORADO RIVER MULTI-
SPECIES CONSERVATION PROGRAM, LAS VEGAS, NEVADA
Mr. Caan. Madame Chairwoman Napolitano, Congressman Heller,
Congressman Mitchell, members of the Subcommittee, good
morning. My name is George Caan. I am the Executive Director of
the Colorado River Commission in Nevada. I am also proud to be
the Chairman of the Lower Colorado River Multi-Species
Conservation Program. Quite a mouthful, and I will refer to it
as the MSCP.
This is a steering committee composed of the 40 plus
agencies who have an interest in the health of the Colorado
River system. I appreciate your invitation to speak to you
today regarding H.R. 2515. I want to especially thank you,
Madame Chairwoman, Congressman Heller, Congressman Mitchell,
for your support and leadership on this bill.
I speak today on behalf of the State of Nevada and also as
the Chairman of the Committee. Like our sister states of
California and Arizona, Nevada fully supports this bill. I have
submitted my written testimony to the committee but would like
to offer brief remarks on why this legislation is so necessary,
and hopefully I can convince my friend, Bob Johnson, to move
from understanding why we need this bill to agreeing that we do
need this bill.
The MSCP is critical to the states that enjoy the benefits
of the water and power delivered by the Colorado River. As an
example, southern Nevada receives 90 percent of its water
supply from the Colorado River and Lake Mead. The need for
future certainty on this supply and a supply that we plan on
using for quite some time is what drove us to work for the last
decade in developing this program.
In order to comply with our responsibilities under the
Endangered Species Act while continuing to use our water and
power resources and develop them into the future, it was also
the motivation for the non-Federal parties to contribute 50
percent of the $626 million of program costs. This long-term
program of 50 years needs the blessing of Congress through
passage of this bill.
We need this legislation. Let me explain why. The
legislation is needed because it provides authorization for the
50-year program. This provides the non-Federal parties the
certainty to protect their substantial financial commitment for
species protection over the 50-year period. The legislation is
needed to uphold the Federal parties' end of the bargain by
providing specific Federal appropriations to support the
Federal parties' 50-year financial commitment.
The legislation is needed to provide specific direction to
the Federal parties to comply with their commitments under the
program documents. It provides remedies to the non-Federal
parties to enforce the provisions of the program documents. The
legislation is needed so that future changes to the Endangered
Species Act will not modify the program unless specifically
called for.
The term immunization was used I believe in your opening
remarks. What we are looking for is that any future acts of
Congress dealing with the Endangered Species Act specifically
address the multi-species program so that there are no
unintended consequences of future actions. Finally, the
legislation gives specific authority to the Federal parties to
use Colorado River water to sustain the various riparian
habitats, fish rearing projects and related facilities provided
under the program through an agreement with the non-Federal
parties.
This is an extremely important effort for all of us. With
your help in passing this legislation, the program is destined
for great success.
In conclusion, Madame Chairwoman, members of the committee,
I am extremely proud to be associated with a program of such
quality. You can look at what we are doing today, the land and
water we are acquiring, the habitat we are restoring, the
fisheries we are rebuilding, the backwaters we are creating,
the ecosystems that we are revitalizing. Look at the
substantial financial commitments that we have made to this
program.
We are developing solid science programs and embracing an
adaptive management program to adjust and improve more efforts
over the 50-year period so that we know what works and what
does not work. We have sufficient time to go ahead and replan
and redo and see the fruits of our efforts. The states, the
tribes, the local governments, water and power agencies, those
who rely on this precious resource, all of us are doing our
part in this important and unprecedented effort.
The certainty of the success of this program and the
populations who depend upon this important resource, the
Colorado River, need this legislation passed by this Congress.
Thank you, and I would be more than happy to answer any of your
questions.
[The prepared statement of Mr. Caan follows:]
Statement of George M. Caan, Executive Director,
Colorado River Commission of Nevada, on H.R. 2515
Good morning Madam Chairwoman Napolitano, Congresswoman McMorris-
Rodgers and Congressman Heller, members of the Subcommittee. My name is
George Caan and I am the Executive Director of the Colorado River
Commission of Nevada. I am also the Chairman of the Steering Committee
charged with overseeing the Lower Colorado River Multi-Species
Conservation Program. I appreciate your invitation today to speak to
you regarding H.R. 2515. I want to especially thank you Madam
Chairwoman and Congressman Heller for your efforts and leadership on
this bill. This bill authorizes the Lower Colorado River Multi-Species
Conservation Program. I speak today on behalf of the State of Nevada,
one of the three lower basin states directly involved in the Program.
Like its sister states of California and Arizona, Nevada fully supports
this bill. I look forward to your comments and questions.
The Lower Colorado River Multi-Species Conservation Program is an
unprecedented, robust 50 year, cooperative effort among 50 federal and
non-federal entities in Nevada, California and Arizona designed to
protect 26 endangered, threatened and sensitive species on the Lower
Colorado River. The Program provides for the creation of over 8,100
acres of riparian, marsh and backwater habitat for the species covered
by the Program, and includes plans for the rearing and stocking of over
1.2 million fish to augment populations of two endangered fish covered
by the Program. The Program also provides for the maintenance of
existing, high-quality habitat, and a research, monitoring and adaptive
management effort to ensure that Program elements are effective in
helping covered species. In exchange for species and habitat
protection, the affected water and power agencies of the three states
are provided with assurances that their operations may continue upon
compliance with Program requirements.
This Program is particularly vital to the State of Nevada. The
State, through the Colorado River Commission of Nevada, an agency of
the State of Nevada, and the Southern Nevada Water Authority, a
political subdivision of the State of Nevada, currently diverts its
entire apportioned share of Colorado River water. This Colorado River
water constitutes the overwhelming majority of the water supply for the
Las Vegas Valley area, almost 90%, with the remaining water coming from
a limited groundwater supply. There are currently more than one and a
half million residents living in the Las Vegas area. Southern Nevada is
the fastest growing urban area in the United States. In the last ten
years alone the population increased by almost 70% and for the next
ten-year period the population is projected to increase by an
additional 50%.
Southern Nevada also relies on the Colorado River for hydroelectric
power. On behalf of the State and as principal in its own behalf, the
Colorado River Commission receives electric power generated by various
federal hydroelectric projects on the Colorado River through delivery
contracts with the Western Area Power Administration of the U.S.
Department of Energy. These projects include the Boulder Canyon
Project, the Parker-Davis Project and Salt Lake City Area Integrated
Projects. The Commission, in turn, contracts to deliver electric power
from one or more of these federal projects to the several companies
comprising the Basic Industries in Henderson, Nevada, the Southern
Nevada Water Authority and to five power utilities that together serve
southern Nevada.
Consequently, the sustainability of the Colorado River System is
absolutely critical to the vitality of southern Nevada's future. For
this reason, the State of Nevada was a significant participant in the
development of the Program and is now one of the primary non-federal
party funding contributors to the Program. In short, the Program
provides for a total of $626 million in funding, indexed for inflation
over 50 years, for the species conservation efforts that will be
implemented under the Program. These costs are divided 50-50 between
the state and federal entities covered by the Program. Accordingly,
H.R. 2515 provides an authorization of appropriations for the federal
share of Program costs and directs the Secretary of the Interior to
manage and implement the Program in accordance with the Program
Documents. These documents include the agreements that the parties have
signed embodying their commitment to carry out the Program. As former
Secretary Norton declared in the Record of Decision for the Program:
The importance of the Colorado River to the southwestern
portion of the United States cannot be overstated: the Colorado
is the lifeblood of the southwest. The Colorado River provides
water and power to over 20 million people (in such cities as
Los Angeles, San Diego, Las Vegas, Phoenix and Tucson),
irrigates over 2 million acres, and generates up to 10 billion
kilowatt hours of electricity annually.
H.R. 2515 gives the necessary strength and integrity to this
monumental federal and non-federal collaborative conservation Program
and virtually assures its success over the next five decades. The State
of Nevada supports this bill in its entirety and urges the Committee to
approve the bill. Thank you again for the opportunity to speak with you
today. I'd be happy now to answer any questions you may have.
______
Response to questions submitted for the record by
George M. Caan on H.R. 2515
(State Representatives) Has there been any effort to work with
entities on the other side of the Mexican border to ensure
successful recovery for the river system, not just the U.S.
side? Is it possible that neglect of habitat on the Mexican
side could wipe out attempts by the MSCP to stabilize habitat
and protect and recover species?
There is significant continuing effort between the United States
and Mexico through the International Water and Boundary Commission
(``IBWC'') 1 to deal with environmental issues along the
Lower Colorado River (LCR) and the delta region in Mexico. In
particular, the U.S. Bureau of Reclamation and United States Section of
the IBWC are involved in ``Fourth Working Group'' activities that
predominantly through the International Boundary and Water Commission
(``IBWC'') coordinate environmental investigations and activities along
the Limitrophe Section of the LCR (i.e., the section between the
northerly international boundary with California and the southerly
international boundary with Arizona), as well as below the border.
These activities include the development of a hydraulic model for the
riverine corridor in Mexico, impacts of water management on the Cienega
de Santa Clara, status of endangered Southwestern willow flycatcher and
Yuma clapper rail, and other endangered species.
---------------------------------------------------------------------------
\1\ The IBWC was established under the 1944 U.S.-Mexico Water
Treaty between the United States and Mexico regarding the Colorado
River and is made up of representatives of the Republic of Mexico and
the U.S. State Department.
---------------------------------------------------------------------------
Additionally, there are several cross-border initiatives involving
the U.S. Fish and Wildlife Service, Arizona Game and Fish Department,
Native American tribes, and other non-governmental organizations that
focus on habitat restoration activities and endangered species
conservation programs. These efforts are addressing portions of the
Lower Colorado River in Mexico, the delta region, and the adjacent
Sonoran Desert habitats. Finally, there is a ``working group'' of
interested governmental and non-governmental entities in Arizona that
are involved in evaluating the potential impacts of partial or full
operation of the Yuma Desalting Plant and potential impacts to the
Cienega de Santa Clara and water quality impacts associated with Treaty
deliveries.
These efforts are necessarily outside of the LCR MSCP since the
Secretary of the Interior does not have the independent authority to
alter river operations to provide more Colorado River water for the
benefit of species or habitat in Mexico. 2 Furthermore, the
Unites States alone has no ability to control water or land use in
Mexico or be assured that its efforts would be supported or implemented
by Mexican authorities. However, through the collaborative efforts
described above progress may be made towards successful habitat
restoration and species protection in Mexico.
---------------------------------------------------------------------------
\2\ Defenders of Wildlife v. Norton, 257 F. Supp. 2d 53 (D.D.C.
2003).
---------------------------------------------------------------------------
With respect to the second question, it is not likely any
degradation of habitats in the Mexican portion of the Lower Colorado
would negatively impact the success of LCR MSCP activities and
programs. If anything, the benefits provided through the habitat
created by LCR MSCP projects will help assure that endangered species
will not go extinct due to any failure to protect their habitat by
Mexico.
(State Representatives) Can you please discuss the specifics of the
proposed federal-state water use agreement referenced in
section 3(b) of the bill? Have the states reached agreement on
how much water will be dedicated to the program?
The LCR MSCP Conservation Plan includes an estimate that
consumptive water use for program purposes will be 39,300 acre-feet per
year. This water is expected to be provided through acquisition of
lands for habitat creation that include water rights; although the
program cost estimate includes $50 million to acquire any additional
water rights that may be needed. However, there is legal question about
the authority of Reclamation to make use of Colorado River water for
fish and wildlife purposes. Section 3(b) is specifically intended to
provide assurances for that authority so that the LCR MSCP may be fully
implemented.
The proposed water agreement will accomplish three major purposes.
First, it will permit the Secretary to apply Colorado River water to
the purposes of the LCR MSCP. Second, it will specify how the Secretary
is to account for water that is applied to LCR MSCP purposes. For
example, the Secretary does not report as a diversion or consumptive
use the natural depletion of Colorado River water by non-irrigated
phreatophyte vegetation. Under the LCR MSCP, some of this vegetation
will be replaced with higher quality, native vegetation. The new,
native vegetation will use water previously applied to the non-native
vegetation and so will not be treated as a new diversion or consumptive
use of Lower Colorado River water. If additional water is needed for
MSCP purposes, it will be acquired from willing sellers. Third, the
agreement will permit the Secretary to manage Colorado River water for
other MSCP purposes, including providing marsh, backwater and other
habitat.
(State Representatives) How does the MSCP address non-native species?
There are many programs and activities contained within the LCR
MSCP conservation measures that address the management and control of
non-native plant and animal species. For example, control and
management of non-native salt cedar (tamarisk) is a major part of the
re-establishment and maintenance of native cottonwood and willow
habitats along the LCR. The salt cedar is low quality habitat for
migratory birds, and its replacement with native vegetation will
improve conditions for nesting and breeding for these species. Another
program within the LCR MSCP to benefit migratory bird species is the
control of nest parasitism by the Brown-headed cowbirds, which has
negatively impacted many birds, such as the endangered Southwestern
willow flycatcher. To counter the predation by non-native fish on
juvenile native endangered fish, the LCR MSCP participants have agreed
to the rearing, stocking and management of nearly 1.2 million razorback
suckers and bonytail in aquatic habitats within the LCR MSCP planning
area along the LCR.
______
Mrs. Napolitano. Thank you, Mr. Caan. Next I would like to
recognize Kara Gillon, Senior Staff Attorney, Defenders of
Wildlife, Albuquerque, New Mexico. Welcome.
STATEMENT OF KARA GILLON, SENIOR STAFF ATTORNEY, DEFENDERS OF
WILDLIFE, ALBUQUERQUE, NEW MEXICO
Ms. Gillon. Thank you, Madame Chairwoman, and members of
the Subcommittee and Committee. I am Kara Gillon, Senior Staff
Attorney with Defenders of Wildlife. Defenders of Wildlife is a
national nonprofit membership organization dedicated to the
protection of native animals and plants in their natural
communities. Headquartered in Washington, D.C., Defenders has
field offices in Albuquerque, New Mexico and throughout the
basin states in Tucson, Sacramento and Denver.
Before summarizing our concerns with H.R. 2515, I will
first touch on our concerns with the Multi-Species Conservation
Program, or MSCP. Defenders appreciate the effort and resources
put into the MSCP. At its inception, Defenders applauded the
program for its long-term, large-scale habitat improvement and
species recovery. In fact, Defenders was a member of the
steering committee.
However, the MSCP falls short of these early goals and will
not sustainably address the environmental degradation suffered
by the Colorado River and delta. The plight of the big river
fish highlights the extreme ecological degradation of the lower
river. All four fish are listed as endangered under the ESA.
The Colorado Pike Minnow has been extirpated from the lower
basin. The bony tail has been virtually extirpated from the
wild, and the razorback sucker populations are not self-
sustaining.
And just as native wildlife finds survival more difficult,
we too face increasing challenges from a highly regulated river
system, increasing water use over allocation, drought and
climate change. The MSCP, however, does not address any of
these pressures on the river. For this reason, habitat
restoration and fish augmentation as proposed in the MSCP are
much less likely to succeed.
Years of river restoration efforts have shown us that
successful restoration is critically dependent on understanding
and addressing the causes of a river's decline. It is also for
this reason that several of the provisions of H.R. 2515 could
result in adverse, unintended consequences for decades to come
and present yet more challenges to wildlife conservation. To
lock in the MSCP and provide the certainty contemplated here
can only come at the expense of another user, the environment.
Instead, we suggest legislation that preserves the
Secretary of the Interior's authority as water master and
creates opportunities for flexibility and resiliency over the
next 50 years. Simply put, there is no precedent for the
constraints placed on the Secretary of the Interior in H.R.
2515. Defenders is concerned about those provisions that exceed
a straightforward authorization to promote Federal
participation such as authorization of appropriations,
authorization to accept grants or provide grants or
authorization to implement program activities.
Provisions that lock in the program documents, direct
development of the water accounting agreement and require
explicit reference to the MSCP in future laws if they are to
apply exceed what is necessary. H.R. 2515 is far different from
authorizing legislation for other endangered fish programs such
as the one on the upper Colorado River. This is because key
program documents were not made available for public review and
comment.
Given the authority possessed by the Secretary as water
master, requiring an agreement for water use is premature, and
use of the section 10 habitat conservation plan and no
surprises is inappropriate in light of the Federal nexus on the
lower Colorado River, and finally because the MSCP steering
committee refused to endorse an agreement where the MSCP would
give good faith consideration to conservation opportunities in
the Colorado River delta for the benefit of listed species
there.
In conclusion, in its current form the MSCP program
documents recognize the Secretary's role as water master.
Defenders has long advocated for flexibility in river
management in order to increase reliability and predictability
of use of river resources. Such flexibility, however, should
not come at the expense of the Secretary's environmental
authorities.
Providing for increased levels of predictability will be
critical to meeting the demands of both human and environmental
water use in the future. Thank you very much. That concludes my
testimony, and I will be happy to answer any questions.
[The prepared statement of Ms. Gillon follows:]
Statement of Kara Gillon, Senior Staff Attorney,
Defenders of Wildlife, on H.R. 2515
Madam Chairwoman and Members of the Subcommittee, I am Kara Gillon,
Senior Staff Attorney with Defenders of Wildlife. Thank you for this
opportunity to speak with you today on H.R. 2515, a bill to authorize
appropriations for the Bureau of Reclamation to carry out the Lower
Colorado River Multi-Species Conservation Program.
Defenders of Wildlife (``Defenders'') is a national, nonprofit
membership organization dedicated to the protection of all native wild
animals and plants in their natural communities. Headquartered in
Washington, D.C., Defenders has field offices in Albuquerque, NM, where
I am located, and throughout the Colorado River basin states, in
Tucson, AZ, Sacramento, CA, and Denver, CO.
I will ask leave to supplement this with some documents that I am
relying on for some of my comments today. Before summarizing our
concerns with the Multi-Species Conservation Program, also known as the
``MSCP,'' and proposed authorizing legislation, I first want to address
briefly the Lower Colorado River--how it has been managed over the last
seventy years and why the MSCP could do a better job addressing the
environmental degradation suffered by the Colorado River and Delta.
We appreciate the effort and resources put into the MSCP. At its
inception, Defenders seized on the opportunity presented--long-term,
large-scale habitat improvement and species recovery where before there
was very little. Unfortunately, the final MSCP provides lesser
protections for fewer species over a smaller area.
Ten years ago, the Bureau of Reclamation found in a biological
assessment of its historic and ongoing operations that ``[H]uman-
induced change since the beginning of the century has resulted in an
ecosystem having significantly different physical and biological
characteristics. Such changes have taken place as a result of the
introduction of exotic plants (such as salt cedar), the construction of
dams, river channel modification, the clearing of native vegetation for
agriculture and fuel, fires, increasing soil salinity, the cessation of
seasonal flooding, and lowered water tables.'' 1 It is as if
man created an entirely different river.
---------------------------------------------------------------------------
\1\ Bureau of Reclamation, Description and Assessment of
Operations, Maintenance, and Sensitive Species of the Lower Colorado
River 83 (1996), available at http://www.usbr.gov/lc/region/g2000/
batoc.html.
---------------------------------------------------------------------------
Native wildlife is finding survival in an altered Colorado River
basin more difficult. These changed processes no longer naturally
sustain riparian forests and meadows, fail to provide young fish access
to flooded lands and leave young fish more susceptible to predation by
sight-feeding, non-native predators.
The plight of the ``Big River Fishes'' highlights this extreme
ecological degradation. All four fish are listed as endangered under
the Endangered Species Act--the Colorado pikeminnow; bonytail;
razorback sucker; and humpback chub. The Colorado pikeminnow has been
extirpated from the lower basin and is not even considered by the MSCP.
The bonytail also has been virtually extirpated from the wild.
Razorback sucker populations have declined from 50,000 to 5,000 fish
over the last ten years with very small wild populations; they are not
self-sustaining. There is only one small population of the humpback
chub in the lower basin.
Habitat restoration and fish augmentation performed without regard
to the well-known threats to listed species are likely to fail. Years
of river restoration efforts have shown us that successful river
restoration is critically dependent on understanding and addressing the
causes of the river's decline (Palmer et al., 2006; Aronson & Le Floch,
1996). The restored habitats and stocked fish will continue their
decline because the MSCP does not address the root causes of habitat
degradation and low fish survival--the impounding, storing, and
diverting of the river's waters without regard to the natural
hydrograph that naturally sustains the cottonwood-willow forest,
mesquite bosque, and backwaters that harbor razorback suckers,
bonytails, southwestern willow flycatchers and other fish and birds,
compounded by the stocking of non-native predatory fish.
Success of the conservation plan is also questionable because there
are no goals or objectives for habitat restoration. Without goals or
objectives, there are no metrics for measuring success. For example, we
do not know if cottonwood-willow habitat is successful if we find one
southwestern willow flycatcher, a flycatcher nest, or ten flycatchers.
We also do not know that mitigation will occur prior to adverse impacts
or if permanently lost habitat will be maintained in perpetuity. We
also do not know how the MSCP will select habitat creation and
restoration sites; thus we do not know if the MSCP will select sites
that are off-channel or hydrologically connected to the river.
Lastly, the MSCP purports to ensure the survival of imperiled fish
and wildlife for the next fifty years yet fails to address perhaps the
largest threat wildlife will face in this century--global warming. In
2004, a report prepared for the Pew Center on Global Climate Change
synthesized published global warming studies and concluded that there
was ``convincing evidence'' that anthropogenic global warming had
significantly affected natural systems and that ``[t]he addition of
climate change to the mix of stressors already affecting valued
habitats and endangered species will present a major challenge to
future conservation of U.S. ecological resources'' (Parmesan &
Galbraith, 2004).
In fact, this year, Working Group II of the Intergovernmental Panel
on Climate Change (``IPCC'') issued a Summary for Policy Makers which
states with medium confidence that 20-30% of plant and animal species
assessed in the report have an increased chance for extinction if the
average global temperature increases by more than 1.5-2.5+ Celsius.
According to the IPCC, an increase in temperatures above this range
would drastically alter ecosystem structure and functions, species'
ecological interactions, and species' geographic ranges (IPCC, 2007).
Colorado River fish and wildlife are particularly susceptible to
adverse effects because of their concentrated habitat and their
location in the Southwest. Global warming is likely to cause
temperatures in the American West to increase above levels which
increase a species chances for extinction, according to the IPCC.
Furthermore, the IPCC predicts with very high confidence that global
warming will lead to decreased snow pack, more winter flooding, and
reduced summer flows for the mountains of the American West. Global
warming effects likely to affect the Colorado River fish include
precipitation decreases in the lower-basin by mid-century, early
snowmelt runoff in the upper-basin, decreased overall runoff, and
increased evaporation rates (Garfin & Lenart, 2007). Therefore, global
warming is likely to produce changes in stream flows, precipitation,
water temperature, and ecosystem structure which could very well result
in an increased probability of fish extinction in the Southwest, such
as in the Colorado River (National Assessment Synthesis Team, 2001).
The imperiled status of many of these fish leave them less equipped
to adapt to habitat modifications presented by global warming, making
the possible effects upon them even more severe and leaving them more
vulnerable to extinction. The MSCP is a rare, but foregone, chance to
assist wildlife through the looming bottleneck of complex effects of
global warming.
To institutionalize the MSCP, as called for in the proposed
legislation, may instead present one more challenge to wildlife
conservation in the lower Colorado River.
We too face increasing challenges from a highly regulated river
system, increasing water use, drought, and climate change. The National
Research Council has recently synthesized several studies that tell us
historical conditions are no longer a reliable indicator of future
conditions, with future droughts exceeding those of recent experience.
First, our streamflow record in the basin is only a small subset within
a range of greater variability than previously thought. For example, we
are learning that although up to 16.5 million acre-feet of water has
been allocated to users in the United States and Mexico, the river
naturally yields 12.5 million acre-feet to 14.7 million acre-feet of
water. In addition, studies show a trend of increasing temperatures
across the basin and a reduction in future streamflow (National
Research Council, 2007). The MSCP, however, does not confront any of
these challenges. For this reason, the success of proposed habitat
restoration and fish augmentation is highly uncertain.
In the face of growing challenges, the desire for certainty will
increase. To provide the level of certainty contemplated here can only
come at the expense of assurances for another--the environment.
Instead, we suggest legislation that preserves the Secretary of the
Interior's authority as ``water master.'' Think instead in terms of
flexibility and resiliency, where mechanisms may be created that create
opportunities for all--whether through new opportunities and creative
ideas for storage, instream flow, water acquisition programs, or
reservoir re-operation. Certainty, whether over water supply or other
resources and gained only at the expense of others, will create an
untenable and unsustainable condition.
This legislation will have the effect of constraining the Secretary
of the Interior at precisely the time we need more opportunities for
the Colorado River system. Provisions that codify the Program Documents
and No Surprises and direct the Secretary to perform certain functions
are inappropriate.
There is no precedent for the constraints placed on the Secretary of
the Interior
The legislation proposed here is far, far different from that for
other endangered fish programs authorized by Congress. Nearby and oft-
cited examples are the Upper Colorado River Endangered Fish Recovery
Program and the San Juan River Endangered Fish Recovery Program.
Legislation for the MSCP should only do what may be necessary for
federal participation in the program: authorize appropriations;
authorize the federal party to acquire interests in land and/or water,
accept or provide grants, and enter into contracts and cooperative
agreements; and authorize the federal party to carry out aspects of the
program. Rather than simply authorize the Secretary's participation,
H.R. 2515 directs the Secretary to take a certain course of action.
Doing so confines the Secretary's authority as ``water master'' for the
next fifty years.
Moreover, codifying the Program Documents would encourage other
programs to emulate this legislative approach despite the fact that key
documents--the Implementing Agreement and the Funding and Management
Agreement--were not made available for public review and comment.
HR 2515 also constrains future Congresses. The bill contains what
is, in effect, a legislative no surprises policy requiring future
Congresses to explicitly state if legislation applies to the MSCP,
turning traditional legislative drafting and interpretation on its
head.
An HCP and ``No Surprises'' are Inappropriate due to the level of
federal influence
The MSCP is a combination of Endangered Species Act (``ESA'')
sections 7 and 10, providing coverage for federal and non-federal
participants. Use of a section 10 Habitat Conservation Plan, or HCP, is
inappropriate in light of the federal nexus associated with nearly all
lower Colorado River activities. Section 10 and use of the ``No
Surprises'' policy are only appropriate where there is no federal
nexus.
The provision in the bill directing the Secretary to act in
accordance with the Program Documents not only enacts No Surprises
assurances for the non-federal participants but also for federal
parties. Neither the Endangered Species Act nor its regulations
authorize extension of No Surprises to federal agencies.
The federal government is implicated in nearly every aspect of
lower Colorado River operations, due to the Secretary of the Interior's
role as ``water master''. The Bureau of Reclamation has been delegated
responsibility for operating and maintaining the extensive network of
dams, water diversions, levees, canals, and other water control and
delivery systems on the River. Reclamation's authority and discretion
are guided by a body of treaties, Congressional enactments, compacts,
and other agreements known as the law of the river.
In 1928, Congress passed the Boulder Canyon Project Act which
authorized the construction of a dam system on the River. Importantly,
the Act reserved for the federal government broad authority over the
operation of the dam system. As the Supreme Court in Arizona v.
California explained, it was the United States' undertaking of this
ambitious project and its concomitant assumption of responsibility for
its operation, that ``Congress put the Secretary of Interior in charge
of these works and entrusted him with sufficient power...to direct,
manage, and coordinate their operation.'' 2
---------------------------------------------------------------------------
\2\ Arizona v. California, 373 U.S. 546, 589-90 (1963).
---------------------------------------------------------------------------
Unlike biological opinions for federal agencies pursuant to section
7, which could change in future consultations, section 10 HCPs include
No Surprises assurances. In general, if the status of a species covered
by an HCP worsens because of unforeseen circumstances, the Fish and
Wildlife Service will not require conservation or mitigation measures
in addition to those in the HCP without the consent of the permittee.
To obtain these assurances available only to non-federal parties,
the MSCP parties employed a section 7/10 hybrid that pooled federal and
non-federal actions and effects as interrelated. If No Surprises
prohibits the Fish and Wildlife Service from requiring additional
mitigation measures from non-federal participants in terms of land,
water or other resources, the Fish and Wildlife Service may be equally
constrained in requesting changes to federal activities. 3
---------------------------------------------------------------------------
\3\ See Lower Colorado River Multi-Species Conservation Program
Implementing Agreement at Sec. 7.2 (recognizing that federal and non-
federal actions are so interconnected that a federal action could
arguably be included in a section 10 permit), available at http://
www.usbr.gov/lc/lcrmscp/publications/FinalIA.pdf.
---------------------------------------------------------------------------
In other words, there is a high degree of federal influence in
lower basin operations. Section 10 of the ESA relates solely to
authorizing take of listed species by non-federal entities. Use of
section 10 and the No Surprises policy are therefore inappropriate.
The degree of federal influence renders direction to the Secretary
unnecessary
Similarly, given the authority possessed by the Secretary as
``water master,'' directing a water accounting agreement is unnecessary
and unwise. The Secretary has ample authority to provide for the
comprehensive management and control of the Lower Basin system. Indeed,
the Secretary need not be authorized or directed to enter into a water
agreement any more than he needs authority to enter into the Colorado
River Water Delivery Agreement or to develop surplus or shortage
guidelines. And again, to direct the Secretary to enter into this water
agreement is problematic because the Program Documents do not mention
the need for such an agreement, even after comment that the documents
were vague as to the sources and use of water for the MSCP, and there
will be no future opportunity to comment on such agreement.
The MSCP does not cover all listed species
Defenders was a member of the MSCP Steering Committee during the
mid-1990s, during which we sought opportunities for the MSCP to include
the Colorado River Delta within its coverage and conservation areas.
After extensive negotiations with other MSCP participants and after the
Steering Committee voted not to endorse an agreement where the MSCP
would give good faith consideration of conservation opportunities in
Mexico, Defenders withdrew in late 1998.
The Colorado River basin encompasses nine states: seven in the
United States and two in Mexico. The MSCP planning area, however, only
``comprises areas up to and including the full-pool elevations of Lakes
Mead, Mohave, and Havasu and the historical floodplain of the Colorado
River from Lake Mead to the Southern International Boundary.'' Although
these fish naturally occurred in this area, the MSCP wrongly excludes
the Colorado pikeminnow from consideration; it offers no conservation
measures for the fish. Moreover, the MSCP ``Planning Area'' does not
encompass the entire area that may be affected by the covered actions--
the Colorado River Delta. Several endangered species, including the
razorback sucker, Yuma clapper rail, desert pupfish, and vaquita, find
a home there, are affected by activities along the lower Colorado
River, and deserve protection.
Conclusion
In its current form, the Lower Colorado River MSCP preserves the
Secretary's role as water master of the Colorado River. Defenders of
Wildlife has long advocated for flexibility in Colorado River
management in order to increase the reliability and predictability of
use of river resources. Such flexibility, however, should not come at
the expense of the Secretary's environmental authorities and
obligations nor should the Secretary relinquish his role as water
master in lower Colorado River management in an attempt to achieve such
flexibility.
Providing for increased levels of flexibility in river management
will be critical to meeting the demands of both human and environmental
water users in the future, particularly as Upper Basin use and the
impacts of climate change decrease overall water availability in the
Colorado River system. Defenders believes that H.R. 2515 goes beyond
what is needed to authorize the MSCP and may limit our options to
address future challenges.
Thank you very much for the opportunity to provide testimony today.
I will be glad to answer any questions.
References
Aronson, J. and E. Le Floch. 1996. Vital landscape attributes: missing
tools for restoration ecology, Restoration Ecology 4: 377-387.
Garfin, Gregg and M. Lenart. 2007. Climate Change: Effects on Southwest
Water Resources, 6 Southwest Hydrology 6:16-34 (2007).
IPCC, 2007. Climate change 2007: Mitigation. Contribution of Working
group III to the Fourth Assessment Report of the
Intergovernmental Panel on Climate Change [B. Metz, O. R.
Davidson, P. R. Bosch, R. Dave, L. A. Meyer (eds)], Cambridge
University Press, Cambridge, United Kingdom and New York, NY,
USA. Available at http://www.ipcc.ch/SPM040507.pdf (last
visited July 20, 2007).
McCarty, John P. 2001. Ecological Consequences of Recent Climate
Change, 15 Conservation Biology 15:320-331.
National Assessment Synthesis Team, Climate Change Impacts on the
United States: The Potential Consequences of Climate
Variability and Change, Report for the U.S. Global Change
Research Program, Cambridge University Press, Cambridge UK
(2001). Available at http://www.usgcrp.gov/usgcrp/Library/
nationalassessment/foundation.htm (last visited July 20, 2007).
National Research Council, National Academies, Colorado River Basin
Water Management (2007).
Palmer, M.A. et al. 2005. Standards for ecologically successful river
restoration, J. of Applied Ecology 42:208-217.
Parmesan, Camille and H. Galbraith, Pew Center on Global Climate
Change, Observed Impacts of Global Climate Change in the U.S.
(2004), available at http://www.pewclimate.org/docUploads/
final_ObsImpact.pdf (last visited July 20, 2007).
______
Response to questions submitted for the record by
Kara Gillon on H.R. 2515
1. H.R. 2515 establishes a 50-year term for the Lower Colorado Multi-
Species Conservation Program. Fifty years strikes me as a long
time, and it is certainly longer than is normally set for
natural resource programs. For example, the Upper Colorado
Recovery Implementation Program was authorized in 1988 and had
to be reauthorized in 2005--after only 17 years. Is a 50-year
term really appropriate for this program? Are you confident
that conditions affecting the program will be essentially
unchanged 50 years from now? What assurances are there?
Response:
The 50-year time frame for the Lower Colorado River Multi-Species
Conservation Program (``MSCP'') is cause for concern. The MSCP does not
address existing threats posed by non-native predatory species and a
drastically altered river ecosystem. One cannot safely predict future
ecosystem conditions given the failure to tackle known threats, not to
mention additional threats not discussed by the MSCP, such as those
posed by climate change. For these reasons, there is little assurance
the MSCP is equipped to deal with the challenges of the next half-
century.
For example, the Program Documents' hydrologic modeling of
potential flows over the next fifty years is based on the assumption
that future hydrology will resemble historic patterns. Defenders of
Wildlife and others commented, therefore, that the model fails to
account for the likelihood that climate change will affect the
hydrology of, and demand within, the Colorado River basin. Climate
change impacts could reduce inflows by as much as 20 percent, with
resultant adverse impacts on habitat and listed species (Nash, L.L. and
P. Gleick. 1991. The sensitivity of streamflow in the Colorado basin to
climatic changes. Journal of Hydrology 125: 221-241; Nash, L.L. and P.
Gleick. 1993. The Colorado River Basin and Climatic Change: The
Sensitivity of Streamflow and Water Supply to Variations in Temperature
and Precipitation. Report EPA 230-R-93-009. Washington, DC:
Environmental Protection Agency).
There has been and continues to be a great deal of research on the
effects of climate change on water resources in the Colorado River
basin (Garfin & Lenart, 2007; Christensen, N.S., A.W. Wood, N. Voisin,
D.P. Lettenmaier, and R.N. Palmer. 2004. The Effects of Climate Change
on the Hydrology and Water Resources of the Colorado River Basin.
Climatic Change 62(1): 337-363). The studies predicted, and continue to
predict, higher temperatures, decreases in streamflow, less snow and
more precipitation, reduced storage, and less hydropower production. As
the United States Geological Survey succinctly stated, ``We need to
look at a large range of possible futures for water and [evaluate] how
well will our designs, plans and allocations work under a whole range
of climate scenarios--because we can't narrow it down.'' 1
---------------------------------------------------------------------------
\1\ Lucy Kafanov, Water Managers Must Gird for Extreme Conditions,
E&E News PM (April 27, 2007).
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After the Bureau of Reclamation rejected climate change as an
important problem that merits analysis, the subsequent Program
Documents failed to even mention the possibility of climate change over
the next 50 years.
Furthermore, the MSCP is not a recovery program, but a program to
offset impacts from current and future activities. If the MSCP were
geared toward recovery, rather than the status quo, the fish and
wildlife of the Colorado River basin might possess long term assurances
on par with those sought by the MSCP permittees.
Due to concerns over the length of the MSCP and its focus on
mitigation of impacts rather than recovery of species, Congress may
wish to authorize the program without the additional provisions of H.R.
2515 that would also direct the Secretary to implement the MSCP as
written today, in Sections 3(a) and 5(b). Congress may also authorize
the program in increments, as is proposed with the Platte River
Recovery Implementation Program.
2. This program was roughly modeled upon the Upper Colorado Recovery
Implementation Program; did water and power users and the
states in the Upper Colorado Basin receive the same assurances
that are being provided in the MSCP?
Response:
Defenders of Wildlife has not been a participant in the Upper
Colorado River Recovery Implementation Program (``RIP''), but the
following response is based on my understanding of the RIP's beginning
and implementation.
From its beginning in 1988, the RIP sought to do more than offset
impacts of water development activities; the RIP instead developed a
plan to implement a set of actions to address aspects of the recovery
plans for listed species.
The RIP serves as the ``reasonable and prudent alternative'' for
projects undergoing Endangered Species Act section 7 consultation. In
other words, the RIP avoids jeopardizing the existence of listed
species and destroying or adversely modifying species' critical
habitat. The Fish and Wildlife Service retains ongoing responsibility
to determine whether the RIP is making sufficient progress toward
recovery. The Fish and Wildlife Service also retains the ability to
fashion a new reasonable and prudent alternative in the event
sufficient progress is not being made or if the RIP cannot continue to
serve as the reasonable and prudent alternative.
In contrast to the MSCP, the Upper Colorado River RIP does not
cover a period as long as 50 years. The RIP does not guarantee No
Surprises assurances to the non-federal participants, nor does the RIP
simply mitigate for the adverse impacts of current and future
activities, in essence maintaining the status quo. Unlike MSCP parties,
participants in the RIP do not have assurances that their Recovery
Action Plan or obligations thereunder will never change. However, they
do have assurance that although the Fish and Wildlife Service makes the
final decision, the agency will work with them in measuring the
progress of the RIP and, if necessary, in developing new reasonable and
prudent alternatives.
______
Mrs. Napolitano. Thank you very much, Madame. I appreciate
your testimony and found it of great interest. Next would be
Mr. Gerald Zimmerman, the Executive Director of the Colorado
River Board of California in Glendale, California. Welcome.
STATEMENT OF GERALD R. ZIMMERMAN, EXECUTIVE DIRECTOR, COLORADO
RIVER BOARD OF CALIFORNIA, GLENDALE, CALIFORNIA
Mr. Zimmerman. Thank you, Madame Chairperson or Chairwoman
and members of the Subcommittee. I want to thank you for the
opportunity to provide both written and oral testimony today on
H.R. 2515. The Colorado River Board of California is the agency
in California created by state statute to protect California's
rights and interest in the resources provided by the Colorado
River and to represent California in discussions and
negotiations regarding the Colorado River and its management.
California's rights and interest in the water and power
resources of the Colorado River system are vital to the state's
economy. Seven counties in southern California, more than half
the state's population, are supported by the water and power
resources from the Colorado River to support the economy in
excess of $850 billion per year. The Colorado River Board of
California supports passage of H.R. 2515 because if passed it
assures continued compliance by the United States with the
program documents and agreements that have been developed as
part of the lower Colorado River Multi-Species Conservation
Program.
From California's perspective, H.R. 2515 as written
provides several key elements that are important toward
ensuring the long-term, effective implementation of this
important program. First, H.R. 2515 provides an authorization
of appropriation for the Federal share of the cost and directs
the Secretary of Interior to manage the program in accordance
with the program documents and agreements that have been
developed.
These documents and agreements that were executed by the
Federal and non-Federal parties reflect a long-term commitment
to implement this program through 2055. California believes
that through this legislation it is important that Congress
formally recognize the value of the program to the citizens of
the United States and the overarching responsibilities of the
Secretary of Interior and the Bureau of Reclamation and the
responsibilities that they have toward long-term program
implementation.
Second, H.R. 2515 establishes a process for the Secretary
of Interior and the Bureau of Reclamation to acquire and
provide adequate water supplies associated with restoration and
maintenance of habitats created pursuant to the program
documents. In these times of limited water supplies in the
lower basin, this process will allow for the creation and
maintenance of 8,132 acres of aquatic wetland and riparian
habitat within the program planning area along the lower
Colorado River, while ensuring lawful entitlement holders in
each of the three lower basin states can continue to manage and
effectively utilize their important Colorado River
apportionments throughout the 50-year period.
Specifically there is language in H.R. 2515 ensuring that
habitat water acquisition and water use policy established by
the Secretary of Interior will not impair any rights to
mainstream water established by any compact, treaty, law or
decree in effect as of enactment of this act.
Finally, H.R. 2515 acknowledges that a long-term,
cooperative effort involving Federal and non-Federal
participants will be required in order to successfully
implement this program over the 50-year period. This will be
accomplished through periodic meetings of the Lower Colorado
River Multi-Species Conservation Program steering committee and
Reclamation staff. These meetings, several of which have
already occurred since the inception of the implementation
program in April 2005, are the primary focal point for
decision-making regarding preparation and adoption of the
annual work plans, budgets and program implementation status
reports.
It is a steering committee where the consensus-based
decisions are made based on the results of ongoing monitoring
and research. Utilization of adaptive management in suggesting
modifications that need to be made should be based on the best
available science. I believe that this is a key element of the
program, and we are already spending over 25 percent of the
program cost to adapt to potential change that may occur.
Madame Chair, I want to thank you for the opportunity to be
here today. I want to indicate that California is fully
committed to carrying out its responsibilities toward the long-
term implementation of this program. Thank you.
[The prepared statement of Mr. Zimmerman follows:]
Statement of Gerald R. Zimmerman, Executive Director,
Colorado River Board of California, on H.R. 2515
Madam Chairwoman and Members of the Committee and Subcommittee,
thank you for the opportunity to submit written testimony regarding
H.R. 2515. As the subcommittee is aware, H.R. 2515 authorizes
appropriations associated with long-term implementation the Lower
Colorado River Multi-Species Conservation Program (``LCR MSCP''). The
LCR MSCP is a comprehensive, cooperative effort among fifty federal and
non-federal entities in Arizona, California and Nevada to protect 26
endangered, threatened and sensitive species along the Lower Colorado
River and to provide assurances to the non-federal entities involved
that their essential water and power operations on the River may
continue if they comply with the Program's requirements and agreements.
As background, I am the Executive Director of the Colorado River
Board of California (CRB); I served as the Chairman of the LCR MSCP
Steering Committee throughout the program-development phase and the
first two years of the implementation phase. The CRB is the agency in
California created by State statute to protect California's rights and
interests in the resources provided by the Colorado River and to
represent California in discussions and negotiations regarding the
Colorado River and its management. California's rights and interests in
the water and power resources of the Colorado River System are vital to
the State's economy. Seven counties in Southern California, with more
than half of the state's population, nearly 20 million residents,
receive water and hydroelectric energy from the Colorado River, in
support of a service area economy in excess of $850 billion per year.
All ten members on the Colorado River Board of California are appointed
by the Governor.
It should be pointed out that in a normal water year California is
entitled to the use of up to 4.4 million acre-feet of water from the
mainstream of the Colorado River. This valuable water supply is
utilized by several large southern California agricultural districts,
as well as The Metropolitan Water District of Southern California, the
wholesale distributor of water supplies to municipal providers that
meet the needs of nearly 18 million residents in Southern California.
The CRB strongly supports H.R. 2515, because this legislation, if
passed, assures continued compliance by the United States with the
program documents and agreements that have been developed as part of
the LCR MSCP. That, in turn, provides protection to the non-federal
participants in the Program, who like the CRB, its member agencies, and
all of the Colorado River water and hydroelectric power contractors,
have agreed to provide substantial amounts of non-federal monies for
the conservation of endangered species in order to receive an
incidental take permit under the terms of the Endangered Species Act
for their continued water and power operations.
On April 2, 2005, Secretary of the Department of the Interior, Gale
A. Norton, approved this major collaborative and innovative 50-year
conservation initiative. The overall Program costs, $626 million, will
be annually adjusted for inflation, and will be shared by the three
lower basin states paying 50 percent of the costs and the federal
government paying 50 percent. Of the states' share, Arizona and Nevada
will each pay 25 percent, while California will pay the remaining 50
percent. In return for their funding commitments, the non-federal
participants have received a 50-year incidental take permit, issued by
the U.S. Fish and Wildlife Service under Section 10 of the Endangered
Species Act, which authorizes their existing and future water and power
operations to continue. All of the California participants have made a
significant long-term financial commitment toward the implementation of
the LCR MSCP that has been memorialized in a California LCR MSCP
Funding Agreement, executed on April 2, 2005.
From California's perspective, H.R. 2515, as written, provides
several key elements that are important toward ensuring the long-term
effective implementation of this important Program. First H.R. 2515
provides an authorization of appropriations for the federal share of
Program costs and directs the Secretary of the Interior to manage and
implement the Program in accordance with the executed Program Documents
and Agreements. These documents and agreements, executed by all of the
federal and non-federal parties reflect the long-term commitment to
implement this important Program through 2055. California believes
that, through this legislation, it is important that the Congress
formally recognize the value of the Program to the citizens of the
United States and the overarching responsibilities that the Secretary
of the Interior and the Bureau of Reclamation (Reclamation) have toward
long-term Program implementation.
Second, H.R. 2515 establishes a process for the Secretary of the
Interior and Reclamation to acquire and provide adequate water supplies
associated with the restoration and maintenance of habitats created
pursuant to the Program documents. In these times of limited water
supplies in the Lower Basin States, this process will allow for the
creation and maintenance of the 8,132 acres of aquatic, wetland, and
riparian habitats within the Program planning area along the Lower
Colorado River, and yet ensure that lawful entitlement holders in the
three states can continue to manage and effectively utilize their
important Colorado River apportionments over the fifty-year period.
Specifically, there is language in H.R. 2515 ensuring that the habitat
water acquisition and use policies established by the Secretary of the
Interior will not impair any right to mainstream water established
under any compact, treaty, law, decree, or contract in effect as of
enactment of this Act.
Third, H.R. 2515 acknowledges that a long-term cooperative effort,
involving the federal and non-federal Program participants, will be
required in order to successfully implement this Program over the
fifty-year period. This will be accomplished through periodic meetings
of the LCR MSCP Steering Committee and Reclamation's LCR MSCP Office
staff. These meetings, several of which have occurred since inception
of Program implementation in April 2005, are the primary focal point
for decision-making regarding the preparation and adoption of annual
work plans, budgets, and Program implementation status reports. It is
in the Steering Committee where consensus-based decisions will be made
associated with the results of ongoing monitoring and research
activities and the utilization of adaptive management in suggesting
modifications to implementation activities based upon the best
available science.
Finally, since the time that similar legislation was introduced
last year (i.e., H.R. 5180), two significant developments have
occurred. First, subject to final review and approval within the
Department of the Interior, the parties have reached agreement with the
United States on an agreement to provide Colorado River water for LCR
MSCP habitat restoration and maintenance purposes, as authorized by
Section 3(b) of the bill. Second, Section 5(b) of the bill, which
relates to the impact of future legislative actions on the LCR MSCP,
has been modified and narrowed significantly to meet the concerns of
some members.
California is fully committed to carrying out its responsibilities
toward long-term implementation of the LCR MSCP over the fifty-year
period, and looks forward to working with representatives and agencies
within the States of Arizona and Nevada, as well as the participating
federal agencies in carrying out those goals and meeting our collective
obligations. Toward this end, California believes that H.R. 2515 is of
vital importance to all of the LCR MSCP participants committed to the
Program's success. California urges the Subcommittee and the Committee,
as well as the full House to approve this important legislation.
It is worth noting that at the White House Conference on
Cooperative Conservation in August 2005, in St. Louis, Missouri, the
LCR MSCP was recognized by the Administration as an ``Exemplary
Initiative.'' Implementation of the LCR MSCP is critical to the long-
term needs of those in the southwest that depend on the Lower Colorado
River for a major portion of their water and power resources. As
Secretary Norton said in her April 2005 Record of Decision approving
the Program:
``The importance of the Colorado River to the southwestern
portion of the United States cannot be overstated: the Colorado
is the lifeblood of the southwest. The Colorado River provides
water and power to over 20 million people (in such cities as
Los Angeles, San Diego, Las Vegas, Phoenix and Tucson),
irrigates over 2 million acres, and generates up to 10 billion
kilowatt hours of electricity annually.''
The LCR MSCP represents a fifty-year commitment by all of the
parties involved. It is essential that this commitment be fully and
faithfully met. H.R. 2515 will help ensure that this occurs. Again, I
would like to thank this Subcommittee and the Committee for the
opportunity to provide this testimony regarding H.R. 2515, legislation
considered by the CRB to be very important to California's long-term
interests and rights in the water and power resources of the Colorado
River System. Should the Subcommittee or Committee require any
clarification of these comments, or additional information, you may
reach me at (818) 500-1625, extension 308.
______
Response to questions submitted for the record by
Gerald R. Zimmerman on H.R. 2515
(State Representatives) Has there been any effort to work with
entities on the other side of the Mexican border to ensure
successful recovery for the river system, not just the U.S.
side? Is it possible that neglect of habitat on the Mexican
side could wipe out attempts by the MSCP to stabilize habitat
and protect and recover species?
There are several significant efforts underway involving federal,
non-federal, and non-governmental agencies in both countries to address
environmental issues along the Lower Colorado River (LCR) and the delta
region in Mexico. The U.S. Bureau of Reclamation and United States
Section of the International Boundary and Water Commission are involved
in the International Boundary and Water Commission Minute 306 and the
``Fourth Work Group'' activities that coordinate environmental
investigations and activities along the Limitrophe Section of the LCR
(i.e., the section between the northerly international boundary with
California and the southerly international boundary with Arizona), as
well as below the border. Specifically, the Minute 306 process provides
a conceptual framework for cooperation by the United States and Mexico
through the development of studies and recommendations concerning the
riparian and estuarine ecology of the Colorado River in its Limitrophe
Section and its associated Delta. These activities include the
development of a hydraulic model for the riverine corridor in Mexico,
impacts of water management on the Cienega de Santa Clara, status of
endangered Southwestern willow flycatcher and Yuma clapper rail, and
other endangered species. Additionally, there are several cross-border
initiatives involving the U.S. Fish and Wildlife Service, Arizona Game
and Fish Department, Native American tribes, and other non-governmental
organizations that focus on habitat restoration activities and
endangered species conservation programs. Collectively these efforts
are addressing portions of the Lower Colorado River in Mexico, the
delta region, and the adjacent Sonoran Desert habitats. Finally, there
is a ``working group'' of interested governmental and non-governmental
entities in Arizona that are involved in evaluating the potential
impacts of partial or full operation of the U.S. Bureau of
Reclamation's Yuma Desalting Plant and potential impacts to the Cienega
de Santa Clara and water quality impacts associated with Mexican Water
Treaty deliveries.
With respect to the second question, it is not likely that any
degradation of habitats in the Mexican portion of the Lower Colorado
would negatively impact the success of LCR MSCP activities and
programs. If anything, the benefits provided through the habitat
created by LCR MSCP projects will help ensure that endangered species
will not go extinct due to any failure to protect their habitat in
Mexico.
(State Representatives) Can you please discuss the specifics of the
proposed federal-state water use agreement referenced in
section 3(b) of the bill? Have the states reached agreement on
how much water will be dedicated to the program?
The LCR MSCP Conservation Plan includes an estimate that
consumptive water use for program purposes (i.e., habitat restoration
and maintenance) will be 39,300 acre-feet per year. This water is
expected to be provided through acquisition of lands for habitat
creation that include water rights. Although the program cost estimate
includes $50 million to acquire any additional water rights that may be
needed, there is a legal question about the authority of Reclamation to
make use of Colorado River water for fish and wildlife purposes.
Section 3(b) of H.R. 2515 is specifically intended to provide
assurances for that authority so that the LCR MSCP may be fully
implemented.
The proposed water agreement commits the Lower Division States and
Reclamation to allow Colorado River water to be used for the LCR MSCP
notwithstanding any contractual or other legal restrictions that may
apply to the water used. Reclamation is further authorized to enter
into voluntary agreements for the use or assignment of water for
conservation purposes. In addition, the agreement encourages removal of
non-native vegetation, like saltcedar, by providing that any water used
by replacement native vegetation planted for program purposes will
continue to be accounted as a system loss by Reclamation.
(State Representatives) How does the MSCP address non-native species?
There are many programs and activities contained within the LCR
MSCP conservation measures that address the management and control of
non-native plant and animal species. For example, control and
management of non-native salt cedar (tamarisk) is a major part of the
re-establishment and maintenance of native cottonwood and willow
habitats along the LCR. The salt cedar is low quality habitat for
migratory birds, and its replacement with native vegetation will
improve conditions for nesting and breeding for these species. Another
program within the LCR MSCP to benefit migratory bird species is the
control of nest parasitism by the Brown-headed cowbirds, which has
negatively impacted many birds, such as the endangered Southwestern
willow flycatcher.
With respect to non-native aquatic species, it should be pointed
out that the three Lower Basin state wildlife resource agencies have
not, for some time, stocked any non-native aquatic species in the
waters of the Lower Colorado River. To counter the predation by non-
native fish on juvenile native endangered fish, the LCR MSCP
participants have agreed to the rearing, stocking and management of
nearly 1.2 million razorback suckers and bonytail in aquatic habitats
within the LCR MSCP planning area along the LCR. Finally, as part of
the LCR MSCP, the Program participants are in the process of creating
``predator-free'' aquatic environments in order to facilitate rearing,
management, and long-term conservation of stocks of native endangered
fishes, including the razorback sucker and bonytail.
______
Mrs. Napolitano. Thank you, Mr. Zimmerman. We will begin
with the question and answer, and I will start off with anybody
that wants to answer this particular question that I have. It
deals with the 50-year term for the program. It strikes me--as
it does others--that it is really excessive. I know there is
precedent in some areas but it is kind of difficult for this
type of an agreement as far as I am concerned because it will
have to take in a lot of other issues such as temperature
change, climate change, the low flows of the river, many of the
things that we are beginning to see that have never in decades
happened in our areas.
It is certainly longer than normal set for natural
resources programs. As an example, the upper Colorado Recovery
Implementation Program authorized in 1988 had to be
reauthorized 17 years later, in 2005. A 50-year term is somehow
questionable as being appropriate. Are you confident that these
conditions affecting the program will be essentially unchanged
50 years from now, and what assurances can you give this
subcommittee?
Mr. Caan. Madame Chairwoman, let me begin attempting to
answer your multifaceted question. This program is really
unprecedented and unlike other programs that we have looked at,
and let me quickly explain why. There are two parties
essentially who have an interest in the Colorado River system
with respect to Endangered Species Act issues. There are the
Federal parties who require a section 7 consultation to deal
with listed threatened and endangered species.
There are also the private parties, the non-Federal
parties, the ones who take the water and power, not the power
so much but the water, who require a section 10 permit to
continue operations. What we have done--and we started this 10
years ago--we decided that instead of having a separate effort
for the Federal parties and a separate effort for the non-
Federal parties, we would combine those efforts and try to do a
comprehensive long-term program that would provide coverage for
the currently listed and threatened species and future listed
species by combining a section 7 and section 10 hybrid that the
states, the non-Federal and Federal parties agree to contribute
to and have one plan that addresses all of the habitat, the
8,000 acres, the riparian habitat and fisheries for the 50
years.
So it is not unprecedented in terms of 50 years. It is
unprecedented, I believe, in attempting to combine those two
programs to provide for the long-term. With respect to the
long-term, I think that is an advantage to the program.
Mrs. Napolitano. Could you speed it up?
Mr. Caan. I am sorry. Let me summarize very quickly. Where
some may see constraints over the lack of flexibility or the 50
years, we see the certainty of the program, the ability to
provide adaptive management to look at change in the river
conditions that will provide us the opportunity to continue to
do what we believe is working and yet have 50 years so that if
things are not working the way we think we can modify our
program, implement new procedures, and then look at the success
of the program over the 50 years. Thank you.
Mrs. Napolitano. With whose oversight?
Mr. Caan. The oversight of this program will be conducted
by the Federal and non-Federal parties over a steering
committee that will be in existence for 50 years. We will
delegate that to our future generations to take care of what we
built into this program. As Mr. Zimmerman said, 25 percent of
the budget is devoted to monitoring, reviewing, improving and
managing.
Mrs. Napolitano. Thank you. Somebody else?
Mr. Johnson. Madame Chair, it is the beginning of the
program. We did look at a 75-year program life similar to the
multi-species or the habitat conservation program for central
Orange County looking at resources. In discussions with the
Fish and Wildlife Service on the activities, species, and
resources that were going to be covered, it was determined that
a 50-year program would be more appropriate.
I believe, Madame Chair, that you have compared this with
the upper Colorado River Implementation Program. That is an
implementation program, not a habitat conservation program.
What they are trying to do with that is to move the species
toward recovery. They are not developing a habitat based plan
as we are within the MSCP. For the cottonwood willows, et
cetera, they need a longer term in order to determine whether
the habitat is being provided for the species, and so being
habitat based I believe that the 50-year term is appropriate.
Mrs. Napolitano. But are they not trying to move it to
recovery?
Mr. Johnson. Through the MSCP that is the objective is move
each of the species toward recovery, yes.
Ms. Bitter Smith. Madame Chair, if I just might briefly add
on behalf of one of those entities which is a water user, my
board is a financial contributor in a very large sense to this
project; and one of the key elements in them reaching that
decision was the sense of certainty in the 50-year term of the
program. That was a very key component in the discussion that
happened at the CAP board level.
Mr. Johnson. Madame Chairwoman, I would just say that I
think everybody has summarized quite well, and I think we agree
with most of the comments that have already been made. We
support the 50-year period. We think the adaptive management
approach allows plenty of flexibility to address anything that
may happen in the future.
Mrs. Napolitano. Then I will have another question. What is
the term of the Platte River Recovery Implementation Program,
and was this program looked at as a possible model for the
MSCP, and what of other HCPs?
Mr. Johnson. Madame Chairwoman, I will take a shot at that.
Actually I think the MSCP preceded the Platte River. I think
the MSCP is probably a little bit ahead of the Platte River
program in its development. I think the initial phase of the
Platte River program is 13 years but I think it is anticipated
that that will be modified over time, and in fact it has an
expectation for a much longer life.
Mrs. Napolitano. Anybody else want to address that? Ms.
Gillon, I am just wondering how open or public was the process
of developing the Lower Colorado Multi-Species Conservation,
and did all the stakeholders have a chance to participate
fully, and how confident are you that there will be adequate
public and stakeholder involvement 45, 50 years from now?
Ms. Gillon. Well, as I mentioned, Defenders had been a
steering committee member initially and during the development,
the MSCP steering committee in meetings have been fairly open
to the public. I think one of the challenges presented by the
MSCP and lots of programs like it is the sheer volume. I mean,
a 10-year development period with a steering committee, several
subcommittees, multiple meetings, it is quite a challenge for a
nonprofit to keep up with and meaningfully participate in that
sort of program.
So while Defenders and other environmental groups made
efforts to participate, I think in the past it was difficult
but we did to the best of our ability. In the future, I do not
know how that is going to look. I know that there have been
attempts and the MSCP maintains a website where it puts out
public documents. I think that there would be a fear that in
about 20 or 25 years there will be less need for public
participation. By that point, I believe they will be done with
the planting and the stocking, and will be mainly monitoring.
However, one of the challenges we have with a 50-year program
is that recent history is not a very accurate indicator of what
the future holds for us. So it is hard to say what will happen
over the next 50 years in the MSCP.
Mrs. Napolitano. Thank you. I will now yield to the acting
Ranking Member, Mr. Heller.
Mr. Heller. The acting, acting. Thank you, Madame
Chairwoman. Again thank you for this hearing. I certainly do
appreciate the opportunity to discuss these issues, and to
Congressman Mitchell for his input and efforts on this bill
also. George, I want to go back to the question that the
Chairwoman brought up. Again getting back to this 50 years. Why
not 25 years? Why not 100 years? Where did the 50 years come
from?
Mr. Caan. Thank you, Congressman Heller. I presume that if
we could have 100-year program we probably would take it. We
expect to be utilizing the resources of the Colorado River in
perpetuity, far beyond my tenure as Chairman and Executive
Director. Fifty years was what we believed was consistent with
the direction that the steering committee wanted to have with
respect to the longevity, the habitat restoration, what we
needed in order to both begin the program, to evolve it, to
acquire the land, acquire the water, see the fruits of our
labor, develop for instance planting techniques and backwater
restoration, see how it works.
If it does not work, we will have to go back, revise our
plans and move forward. Fifty years was the kind of certainty
that in order for us to provide this level of investment for
the $626 million where Nevada is paying roughly $78 million of
that share that we wanted the long-term certainty frankly to
see the fruits of our ability and to see the project be a
success.
Forty years from now, Congressman Heller, there will
probably be people back at Congress asking for additional
legislation to extend this program to let you know how well it
succeeded and to get the Congress to endorse a program that
will continue to restore the environment.
Mr. Heller. Let me just raise one question. Was there any
discussion during your deliberation on debt management or
capital outlay from power companies and water companies as to
part of the reason for the 50 years or any kind of time period?
Mr. Caan. Congressman Heller, Madame Chairwoman, in
Nevada--I will just speak for Nevada--the water and power
customers who rely on this river system fully understand the
challenges that the Endangered Species Act could pose without a
level of certainty that we have done our best to comply with
that. So those who receive an allocation of hydropower, those
who receive an allocation of water are fully supporting the
longevity and long-term program, which is why they are the ones
who are contributing.
In Nevada, two-thirds of the $78 million that Nevada is
contributing is coming from water customers. One-third of the
contributions are coming from those in southern Nevada who
receive an allocation of Federal hydropower. It was initially a
challenge for them to understand what the Endangered Species
Act does. Once they understood what it could do if not planned
for proactively, they were very willing to support contributing
to this program and funding it. In fact, they are the members
of the steering committee and plan to be there for the 50 years
to monitor the success of this program.
Mr. Heller. Very good. Thank you. I yield back.
Mrs. Napolitano. Thank you, sir. Let us see. We have Mr.
Costa.
Mr. Costa. Thank you very much, Madame Chairperson, for
holding this hearing this morning and the proposed legislation.
I have several different questions, and let me begin I guess
first of all with Mr. Johnson. If adopted into law, do you see
any proposed, or any potential impact I guess is a better way
to rephrase it, with regard to the Quantification Settlement
Agreement that we reached several years ago on the Colorado
River as it relates to water use impacting primarily California
but other shared users as it relates to the record of decision?
Mr. Johnson. This program actually supports the
Quantification Settlement Agreement. Without ESA compliance, we
would not be able to implement that. So I think that this
program is very integral to that agreement and ensuring the
long-term viability of that agreement.
Mr. Costa. In the definition of again this proposed
legislation while it looks toward protection of the Multi-
species Conservation Program, does it include--and I guess you
would divide between the northern or the southern reaches of
the Colorado River--the Grand Canyon area? By definition it is
below Lee Ferry, is it not?
Mr. Johnson. Right. The lower basin.
Mr. Costa. The lower basin.
Mr. Johnson. The lower basin river starts at Lee Ferry.
This program only covers the river from the upper reaches of
Lake Mead to the Mexican border and the flood plain. The Grand
Canyon is covered under the adapted management program
associated with Glen Canyon Dam, and there is lots of activity
related to the Grand Canyon and how the river is operated
through the canyon. It is a separate program, a separate
process that addresses the ecosystem.
Mr. Costa. Well that brings another question. As it relates
to Glen Canyon and with great fanfare both Secretary Babbitt a
number of years ago created the release program to improve the
beaches and habitat and so forth. The report that was done on
that seemed to indicate that notwithstanding the best
intentions, it was less than successful. What have we learned
about our ability to restore multi-species efforts with these
types of various programs like the ones that are being proposed
here?
Mr. Johnson. Well I think it is an ongoing effort, and I
think as we get information and as the science becomes more
accurate and more complete we make adjustments to ensure that
we are doing the right thing to protect and enhance the
species, and to try to move them toward recovery. That has been
an ongoing process in the Glen Canyon effort.
We are embarking on a new EIS related to the operation of
Glen Canyon Dam. That is scheduled to be completed in about a
year and a half, and we are looking at options in the Grand
Canyon on how we operate that system and how we protect
species. We are looking at things like a temperature curtain at
Glen Canyon Dam that could increase temperatures and in fact
enhance the production of the native species in the canyon.
Mr. Costa. But are there not limitations? I mean, we are in
a conundrum, are we not, I mean, when you think about it as to
what our abilities are to recreate habitat? We have two very
important reservoirs with Lake Mead and Lake Powell as well. We
now have extended periods, both on the upper basin and the
lower basin, as it relates to drought conditions, and we know
that the seven-party agreement as it relates to the river and
the allocation of water is oversubscribed. So how do we pursue
this effort?
Mr. Johnson. Well I think that we have to manage the river
system to accommodate.
Mr. Costa. As best we can but realizing we cannot, unless
you want to eliminate the two reservoirs, which some would
argue. You cannot turn back the clock completely.
Mr. Johnson. Absolutely not. Those two reservoirs are
absolutely critical to meeting the water needs of the
southwest, and certainly it does not make any sense to not
continue to have those. At the same time, we have to comply
with the Endangered Species Act, and quite frankly, this
program and what we are doing in the Glen Canyon effort, what
is being done in the Upper Colorado River Recovery Program are
all activities that are enhancing species and improving the
species and addressing the needs of the species.
Mr. Costa. My time has expired.
Mr. Johnson. We have to know how to manage the river system
to meet human needs and to also meet the needs of the species.
It is an ongoing effort, and we have to adapt our approach to
doing that as necessary over time as we get new information.
Mr. Costa. Thank you, Madame Chairman. My time has expired.
I guess at the end of the day we will continue to have this
discussion as to whether or not the glass is half full or half
empty, no pun intended.
Mrs. Napolitano. OK. Do you have a question?
Mr. Heller. Thank you, Madame Chairwoman. Commissioner, in
your opinion the MSCP agreement, has that been an open process?
Mr. Johnson. Yes, I believe it has. I think we have worked
hard to be inclusive and to invite the public to participate in
the process. Absolutely.
Mr. Heller. It has been raised in writing that some of the
key documents such as the implementing agreement was not shared
with the public. Can you respond to that?
Mr. Johnson. I was not involved in the details of
developing that agreement, and I would like to defer that to
some of the other parties that were involved in that if I can.
Mr. Heller. Sure.
Mr. Caan. Thank you. Thank you for the question,
Congressman Heller. I have been involved in the process since
1996. It has been open. It has been available. Documents have
been available for the public to look at. I could say that
directly because our office initially operated the website that
put all these documents for public review, public inspection.
The Bureau of Reclamation now operates the website with our
help. To address a previous question with respect to the public
participation, the program documents--the documents that we are
asking for in this legislation--provide for compliance and will
provide assurance that for the 50 years of implementation this
will be an open process. This will have a steering committee
for the next 50 years that will look at monitoring plans and
science plans and yearly budgets so that in the future, to the
extent that we can agree that the program documents will be
complied with, which is one of the reasons we are asking for
this legislation, this process will have that kind of oversight
in the future.
Everything is made public. It is all in the website. Our
meetings are open to the public. We have a huge stakeholder
committee, and it is clearly the interest of the stakeholders
to make sure that each and every step is open to the public
frankly because we get a lot of good comments and suggestions
by having it as open as it is.
Mr. Heller. Thank you. Changing subjects just for a minute,
Ms. Bitter Smith, on the 26 species, prior to this agreement
how were they protected?
Ms. Bitter Smith. Madame Chairwoman, Congressman, nothing
was happening with any great regard, and we have had great
humor in talking about those species at my board level, as you
can imagine. Hence the concern about making sure that we have
met the Federal mandate because it does require us to do that
in order to continue our water deliveries. So this is key, as
you are alluding to in your question, for us to continue our
mission in providing water resources to Arizona because up
until that point we had no ability to manage and deal with the
Federal requirements.
Mr. Heller. Thank you. I will yield back.
Mrs. Napolitano. Thank you. Mr. Udall.
Mr. Udall. I will pass. I do not have any questions. Thank
you.
Mrs. Napolitano. Mr. Costa, any more questions?
Mr. Costa. Yes. I want to ask Mr. Zimmerman, and it is kind
of a twist on--not a twist--but a follow up on the question I
asked Mr. Johnson regarding the Quantification Settlement
Agreement. Obviously that came with great pain and effort for
California as a partner among the basin states, and I have
heard part of your testimony but have not had a chance to read
it. I wonder whether or not you believe that there will be any
impacts, positive or negative, with regards to either pieces of
legislation if they are implemented into law.
Mr. Zimmerman. Related to H.R. 2515, the Multi-Species
Conservation Program, all of the parties to the Quantification
Settlement Agreement are parties to the MSCP. They are
participants. All of the covered programs that are associated
with the quantification settlement agreement are covered
programs within the MSCP. So all of the California water and
power contractors from the Colorado River are providing
California's funding for the 50-year life of the MSCP, and so I
believe that I can say without reservation the State of
California, the administration as well as all the contractors
within southern California fully support implementation of the
MSCP and passage of this legislation.
Mr. Costa. You and I know the folks in southern California
say with great pride that you were able to achieve the
milestones earlier than stated in the record of decision with
regards to the Quantification Settlement Agreement.
It is a little off track as it relates to these two pieces
of legislation but I am wondering whether or not in working on
the Colorado River Board there is a sense that with the current
drought conditions impacting the Colorado River and again the
point that I made earlier, the oversubscription of the river
with regards to the contractors and the allocation of water,
whether or not there is long-term consideration--you talk about
the 50 years with these proposals and your other agreements--as
to whether or not as we are continuing to gather more
information with regards to climate change, whether or not we
are moving into prolonged periods of droughts.
There is some indication based on tree rings in the Sierra
that the last 100 years have been particularly wet. If the next
100 years are particularly dry, what does that mean to those of
you on the Colorado River Board and your allocation of water
and your ability to try to balance all of these issues?
Mr. Zimmerman. We believe that the MSCP is a key element in
addressing whatever may come about through climate change. We
understand that through climate change, global warming, as you
have further development on the Colorado River there will be
more shortages to the water users within the lower basin. That
is being provided for by the MSCP as far as providing the ESA
compliance to continue operations, to continue some of the
innovative programs that we have been able to implement within
the lower basin to meet each of our critical water supply
needs.
So we believe that this legislation and this program is a
key element to address that. We also have within the MSCP, as
George Caan has indicated, the adaptive management aspects that
we would be continuing to look at that so that we can maintain
the compliance so that the water and power users can continue
their operations.
Mr. Costa. Mr. Caan, you are a big believer in adaptive
management?
Mr. Caan. Thank you for your question. I think adaptive
management is absolutely critical to put together a 50-year
program. There is no sense in moving forward and spending the
money that we are spending without having sufficient resources
devoted to understanding the effects of what we are doing.
Those things that are working, let us continue, let us improve.
Those things that are not working, let us agree that they are
not working. Let us----
Mr. Costa. It is in the agreements the difficulty
oftentimes.
Mr. Caan. I think that this program if you look at the
participants--the scientists and biologists--and the work that
is going on, that we have been provided throughout this
process, I have a lot of faith that these scientists and
biologists are committed to making what works work, and we have
a sufficient amount of funding to be able to change in
midstream. We are not looking at situations where someone is
going to say this is not working, and we are all struggling to
find dollars to try to fix it.
Mr. Costa. My time has expired.
Mr. Caan. We already indicated----
Mr. Costa. And I think yours has too.
Mr. Caan. OK. Thank you.
Mr. Costa. Midstream. No pun intended. Thank you, Madame
Chairperson.
Mrs. Napolitano. You are very welcome. Representative
Heller.
Mr. Heller. Thank you, Madame Chairwoman. One more question
here. Ms. Gillon, I was looking at your written testimony. I
just want to quote a sentence here. It says, ''Lastly the MSCP
purports to ensure the survival of imperiled fish and wildlife
for the next 50 years yet fails to address perhaps the largest
threat wildlife will face in this century is global warming.''
Do you consider this bill to be a global warming bill?
Ms. Gillon. Congressman, no, I do not believe that this
bill directly relates to global warming. The concern though is
that because the MSCP as written assumes that past history is
an indication of what will happen over the next 50 years and
because this bill directs implementation of the program in
accordance with those program documents as written two years
ago to five years ago, that global warming will go unaddressed
over the next 50 years and will continue to impact species in
ways that we are not fully aware of what those impacts will be,
and there is a concern that we do not know how the MSCP will
address those impacts or whether the MSCP will address those
impacts since they are not addressed at all in the program
documents.
Mr. Heller. Is that accurate, George?
Mr. Caan. The effects of climate change are not addressed.
However, we have established a priority use for water for
environmental purposes. Forty to 50,000 acre feet of water are
going to be either acquired through either changing vegetation
or acquiring the water directly as a priority use for the
environment, and that is because in order to obtain our Fish
and Wildlife permit we as a group had to agree that this water
would be made available.
So if you look at 40,000 acre feet in the lower reaches out
of 7.2 million acre feet and the one and a half million acre
feet delivered, we expect that we will be able to ensure that
we could provide that priority water use.
Mr. Heller. Thank you. Yes, Commissioner?
Mr. Johnson. Could I just add on that question? The MSCP
has been formulated to consider a range of operations of the
river, and that includes both dry periods as well as wet
periods. On the Colorado River we are in the process of putting
shortage guidelines in place that would define how shortages
will be administered when there is not enough water to go
around, and in fact the MSCP takes into consideration and
actually covers that kind of an activity. So to that extent we
have considered the range of potential conditions out there
that may exist on the river system.
Mr. Heller. Thank you. Thank you, Madame Chairwoman.
Mrs. Napolitano. Commissioner Johnson, if you consider that
it has been information that the last 100 years have been wet
years, then we are heading into a continued drought pattern,
was that taken into consideration?
Mr. Johnson. Certainly it is being considered in our
shortage analysis. We are doing a separate EIS on the shortage
guidelines on the Colorado River, and we are looking at the
long-term tree ring, a much longer period of record on the
Colorado River system, and we are doing some evaluations that
has been and will be displayed in our EIS process for that. I
cannot say that explicitly the MSCP did that same kind of
analysis but it certainly did consider a range of potential
operations on the system including dry years, certainly within
the range of what we are anticipating for our shortage
guidelines on the Colorado River.
Mrs. Napolitano. Well, all is well and good except in 50
years it is well into the 100-year drought. So if we are
assuming that we are going to still have wet years and we
continue on the drought pattern that we have seen, that should
affect what happens with some of the water delivery, would it
not?
Mr. Johnson. Certainly dry conditions on the Colorado River
are expected. I think the Colorado River is over-allocated. I
think we have always anticipated that the day would come when
there is not enough Colorado River water to go around. That is
why we are developing our shortage guidelines today as to put
procedures in place to deal with that when it occurs.
Again I think that there is enough adaptive management
worked into the process that we can deal with over a 50-year
period and make adjustment if in fact conditions become worse
than we have anticipated.
Mrs. Napolitano. But that really has not been specifically
addressed in this project?
Mr. Johnson. I do not believe that when we did all of the
hydrologic analysis on the MSCP that we took that longer period
of record into consideration. We certainly took dry cycles that
have occurred in the last 100 years, and in fact we have had
some pretty significant dry cycles on the Colorado River over
that 100-year period, and we certainly considered the dry cycle
that we are currently in but to say that we have done the same
analysis that we have done in that shortage EIS, no, we did not
get that explicit in the MSCP hydrology.
Mrs. Napolitano. OK. I will stop for a moment. I see people
taking photographs. You do have to get permission from the
Subcommittee to be able to take photographs. So I will stop now
and ask anybody who wants to take photographs do them now. You
will get a couple of minutes, and then after that I will ban
you from taking photographs because they are very distracting.
When I see a light, it takes away from my focus, and if you
want to go ahead and take photographs. I know there were a
couple of people earlier who had asked. You do have to get
permission for either camera or picture taking because this is
a committee hearing, and it is not a problem asking. Just let
us know ahead of time so that we are able to accommodate those
individuals. Did you have a question, sir? You want to answer.
OK.
Mr. Zimmerman. If I might, Madame Chairwoman, I would
further respond to Bob's comment on your latest question. I was
the Chairman of the MSCP during the 10-year program development
phase. As part of that, when the Bureau of Reclamation, as Bob
has indicated, ran the models, they ran a couple different
scenarios. One was looking at one set of shortage guidelines,
another one at another level of shortage guidelines which would
have greater impacts on the river, and so in part using the
historic data and the past drought cycles there were two
alternatives that were analyzed within the MSCP.
One of the things I would like to point out is that the
major water demands on the Colorado River are at the bottom of
the system, our 1.5 million acre foot annual delivery to
Mexico, as well as the delivery to the Imperial Valley,
Coachella Valley, which is over 3 million acre feet plus the
delivery on the opposite side of the river in Arizona, which is
another million acre feet.
So most of the demands on the Colorado River system are at
the bottom of the river, and so the water that is available,
whether it is in a good hydrology or bad hydrology will be
flowing in the river. Most of the conservation areas that will
be developed will be developed in that stretch of the river. So
there will be water, as George has indicated, to provide the 40
to 50,000 acre feet of water to develop the habitat and,
second, to maintain the habitat.
Mrs. Napolitano. Sir, I hope you are right. I hope you will
be here in 50 years to back up that statement, and when you
talk about Mexico, there are some issues there because of the
Rio Grande that we also have great concerns about how that
water is not being delivered to the Rio Grande Valley. Ms.
Gillon and Mr. Caan, is there a precedent for the language in
section 5[b] which says that future changes to the ESA will not
affect the lower Colorado MSCP unless the changes are
specifically made applicable to it. Now why should Congress
agree to that?
Ms. Gillon. Madame Chairwoman, as far as I know--and I
cannot say that I have read every statute ever passed by
Congress--there is no precedent that I can find for Congress
limiting itself in that way, and I would imagine that if it
were to become quite unwieldy over the next 50 years to ensure
that if you want a law to apply to the MSCP you specifically
say that though.
Mr. Caan. Madame Chairwoman, in the development of the
MSCP, one of the overriding principles we had was trying to
provide certainty for the water and power users, the Federal
and non-Federal parties. I do not know of language specifically
like this in other bills. I do know issues like no surprises to
provide a level of certainty has been part of policy.
This language is and we debated this language
considerably--should it be all acts of Congress? Should it be
related specifically to the Endangered Species Act? And we
agreed that when it comes to modifications to the Endangered
Species Act what we want to make sure based on the investments
that we made because a lot of these investments are being made
up front to require land and water and other habitat is that if
there are changes to the Endangered Species Act that those
changes will not affect the MSCP unless Congress specifically
addresses it so that way there can be a full vetting of the
affects that a change might have to the $626 million effort.
We are not saying there cannot be changes. We are just
saying that if there are changes we want the opportunity to
come before you and your Committee to express what concerns we
may have with those changes and then let you make a decision.
We do not want it to be an unintended consequence of
legislation that is acted upon without addressing specifically
the MSCP.
Mrs. Napolitano. Thank you. Mr. Johnson, Ms. Gillon, if the
Bureau of Reclamation is running this program since 2005, why
is this legislation necessary?
Mr. Johnson. We think that the legislation is helpful. It
provides a long-term commitment to fund and carry out the
program. We have authority to implement this program without
further legislation. That is in my written testimony. It was
also in my oral testimony. So we have that authority. We have
to comply with ESA, and we will do that, and that is part of
implementing this program.
That said, we think that this legislation is helpful in
that it puts the Congressional stamp of approval on the program
and commits us for the long-term effort and Congress as to the
long-term effort of trying to implement the program.
Mrs. Napolitano. Thank you. To any of the representatives,
has there been any effort to work with the entities on the
other side of the Mexican border to ensure successful recovery
for the river system, not just on the U.S. side, and is it
possible that neglect of habitat on the Mexican side will wipe
out attempts by the MSCP to stabilize habitat, and protect and
recover species on the U.S. side?
Mr. Johnson. I could take a shot at that, and I am sure
these folks can add in. Mexico is another country. We have a
separate process for dealing with the country of Mexico as it
relates to the Colorado River. We have an international
boundary and water commission that we work through under a
treaty to address issues with Mexico. There is a provision that
is a minute to the treaty, minute 406 that actually established
a basis for cooperation between the two nations as it relates
to the ecosystem and addressing the Colorado River delta and
environmental issues in Mexico. So there is an ongoing process
to work with Mexico to address those issues.
We believe that that is separate. That is an international
process. A separate process from the MSCP, and the MSCP
addresses the needs in the United States. We have an
international process to work with Mexico.
Mrs. Napolitano. Would you not think it might have some
affect?
Mr. Johnson. Well I think we are concerned about dealing
with environmental issues in Mexico as well. There is lots of
habitat down there and lots of species and having cooperative
programs with Mexico to address that certainly is a beneficial
thing. But there are ongoing, separate programs on separate
processes.
Mrs. Napolitano. Was there not a suit filed against the
U.S. by Mexican environmentalists and U.S. environmentalists
over that water?
Mr. Johnson. Yes, there was, and that suit has been
dismissed.
Mrs. Napolitano. OK. So there still is a concern.
Mr. Johnson. Out of comity we work very hard with the
country of Mexico to address their issues through the IBWC
associated with water quality, water quantity and also
environmental issues through this minute 406 that I was talking
about, and so certainly we are concerned about the country of
Mexico, and we want to work with them as best we can to address
issues that they may have.
Mrs. Napolitano. Thank you, Mr. Johnson, and with that we
will conclude this panel. Thank you for your testimony. It was
very--how would I say--insightful.
Mr. Heller. I also want to thank you for this opportunity
for this hearing. I want to let you know there is a companion
bill on the other side with Senator Kyl that is supported by
Senators Ensign and Reid, and also Senator Feinstein from
California. Thank you so much for your time on this bill.
Mrs. Napolitano. You are very welcome. Panel, you are
dismissed. Again, thank you for your service. We will be
submitting some questions to you. We would appreciate your
response. The members may have some questions so we will keep
the file open for 10 days to be able to have more input. So you
are welcome to submit any comments that you wish. With that,
thank you panel, and we will move to the second panel. Mr.
Johnson, you may as well keep your seat. Mr. Joe Shirley, Mr.
Jim Dunlap, Patricia Lundstrom, Gregg Houtz and Gerald
Zimmerman.
[Pause.]
Mrs. Napolitano. While the panel is taking their seat, I
will ask Mr. Johnson, you stated that the Bureau is not a
participant in the Settlement Agreement, and I would like to
include six letters for the record that verify the Bureau's
involvement in the process. If you wish, we will give you a
copy of them.
Mr. Johnson. Thank you.
Mrs. Napolitano. And these are for the record, Mr. Johnson.
Mr. Johnson. Thank you.
Mrs. Napolitano. OK. I think we will continue the
Subcommittee hearing on H.R. 1970, the Northwestern New Mexico
Rural Water Projects Act. We have Commissioner Robert Johnson
still in the hot seat, accompanied by W. Patrick Ragsdale,
Director of the Bureau of Indian Affairs. Second we have Joe
Shirley, Jr. from Window Rock, Arizona. Welcome. President of
the Navajo Nation.
Third, we have Mr. Jim Dunlap, Chairman of the Interstate
Stream Commission of the State of New Mexico in Santa Fe.
Welcome. And fourth, Patricia Lundstrom, President of
Northwestern New Mexico Council of Governments, based in
Gallup, New Mexico. Welcome to you too. Number five is Gregg
Houtz, Deputy Council for the Arizona Department of Water
Resources in Phoenix, Arizona, and finally Mr. Gerald Zimmerman
of Colorado River Board of California in Glendale, California,
staying with us and again thank you. If you will start, Mr.
Johnson.
STATEMENT OF ROBERT JOHNSON, COMMISSIONER, BUREAU OF
RECLAMATION, WASHINGTON, D.C.; ACCOMPANIED BY W. PATRICK
RAGSDALE, DIRECTOR, BUREAU OF INDIAN AFFAIRS, WASHINGTON, D.C.
Mr. Johnson. Madame Chairwoman, it is a pleasure to be here
again and testify on H.R. 1970. I have got Bureau of Indian
Affairs Director Pat Ragsdale with me, and he has just a few
short comments as well. We have submitted written testimony for
the record, and we will limit our oral comments to just a short
summary.
First, let me express my personal appreciation for the
needs of the people of the Navajo Nation for water. Much of the
Nation is without potable water supplies, except for what is
literally hauled to many of the remote locations of the
reservation. Reclamation has a long history of working with the
Nation to provide technical assistance and some financial
assistance in addressing water needs. I am proud of my personal
involvement. Over the years as Regional Director of the Lower
Colorado River Region, I visited the reservation and personally
worked with them on many of these issues.
Notwithstanding our understanding of the water needs of the
Nation, the Administration cannot support the legislation as
currently written. Our written testimony provides details of
our concerns, and I will not reiterate those here. Suffice to
say that the cost and funding mechanisms for the project are of
concern. In addition, there are other provisions of the bill
that are also cause of concern for Reclamation.
I am, however, happy to report that the Indian Water Rights
Office of the Department of Interior and Reclamation's staff
are participating with the State of New Mexico and the Navajo
Nation in discussions regarding our concerns.
A meeting was held just yesterday here in Washington and
another is scheduled for next week in Santa Fe. The state and
the Nation have been very forthcoming in those discussions, and
we appreciate their efforts to consider our concerns. We look
forward to continued dialogue. That concludes my oral
testimony, Madame Chairwoman, and I would be happy to answer
questions.
[The prepared statement of Mr. Johnson follows:]
Statement of Robert Johnson, Commissioner, Bureau of Reclamation, and
W. Patrick Ragsdale, Director, Bureau of Indian Affairs, U.S.
Department of the Interior, on H.R. 1970
Chairwoman Napolitano and members of the Subcommittee, we would
like to thank you for the opportunity to appear today to present the
Administration's views on H.R. 1970, the Northwestern New Mexico Rural
Water Projects Act. The Department of the Interior's support for
negotiated settlements as an approach to resolving Indian water rights
remains strong. The Administration, however, has concerns that H.R.
1970 would increase mandatory spending, delay the full cost of the
legislation beyond the 10 year Congressional scorekeeping window, not
provide for adequate cost sharing by non-Federal interests, and likely
include costs that exceed the Federal government's underlying
liability. The Administration did not participate in the drafting of
the water rights settlement embodied in H.R. 1970, and does not support
a water settlement under these circumstances. For these reasons, the
Administration opposes the cost and cannot support the legislation as
written. We would like to work with Congress and all parties concerned
in developing a settlement that the Administration can support.
H.R. 1970 would amend Federal statutes that relate to the Bureau of
Reclamation and the use of water in the Colorado River basin. Major
provisions include: (1) authorization for the Bureau of Reclamation to
construct and operate a pipeline (formally titled the ``Northwestern
New Mexico Rural Water Supply Project'', but generally known as the
``Navajo-Gallup Pipeline Project'') to bring water from the San Juan
River to the eastern portion of the Navajo Reservation, the Jicarilla
Apache Reservation, and the City of Gallup, New Mexico; (2) creation of
a Reclamation Water Settlements Fund in the Treasury that could be used
to fund activities under this bill and future Indian water rights
settlements, to be funded by the diversion of revenues from the
existing Reclamation Fund; (3) authorization for the Secretary of the
Interior to reserve up to 26 megawatts of power from existing
reservations of Colorado River Storage Project power for Bureau of
Reclamation projects for use by the Northwestern New Mexico Rural Water
Supply Project; and (4) authorization for the Secretary to rehabilitate
existing irrigation projects, develop groundwater wells, and establish
other funds for the benefit of the Navajo Nation. The bill also
includes provisions that would resolve the Navajo Nation's Federal
Indian reserved water rights claims in the San Juan River in New
Mexico, although the United States was not party to the final
negotiations on this issue.
The Role of the Criteria and Procedures
The Administration has been actively engaged in the New Mexico
water settlements. Secretary Kempthorne committed during his
confirmation before the Senate to bringing his energy and concern to
the pending water settlements in New Mexico. Consistent with this
pledge, we have made it a high priority to better understand the
complex issues that must be resolved in each of the proposed New Mexico
settlements. Our water rights team has made several trips to New Mexico
to visit with the Pueblos, Tribes, the State, local communities, water
users, and other constituencies to these proposed settlements. A few
months ago, at the Secretary's request, key officials from the
Departments of Justice and the Interior and the Office of Management
and Budget traveled to Navajo country to observe first-hand the
difficult issues related to water delivery on the Reservation.
Madam Chairwoman and members, we are keenly aware of the needs in
this area of the United States. On the Navajo Reservation, some people
routinely haul water for 20-30 miles several times a week to provide
for their basic household needs. Families must travel extended
distances to do laundry because washing machines require water hookups
which they do not have. There is no question that the Administration
officials who traveled to the Reservation came away with powerful and
indelible images as well as a better understanding of the needs of
Reservation inhabitants seeking access to basic services that are taken
for granted by all but a few Americans.
Nonetheless, despite our understanding of the human needs on the
Navajo Reservation, we firmly believe that the resolution of
substantive and procedural problems raised by this bill will require
the active involvement of all parties to the proposed settlement. It is
important to have an open and full discussion on all aspects of the
settlement, including the specific goals of the Navajo Nation and the
State of New Mexico for the settlement of these claims and whether
these goals can be met by alternative and potentially less expensive
means. This settlement was developed largely without Federal
involvement, and, consistent with Secretary Kempthorne's commitment to
address these issues, we would welcome the opportunity to continue to
engage with the Committee and proponents of this settlement to see if
we can identify areas of common ground sufficient to move forward with
the full support of the Administration.
One of the first steps in this process, Madam Chairwoman, is for us
to acknowledge the three New Mexico settlement proposals that are now
being advocated to Congress. While the Navajo settlement in the San
Juan River is the subject of today's hearing, there are other
settlements proposed in New Mexico, as well as in other western states,
that require active Federal participation in negotiations. If enacted,
the cost of H.R. 1970, alone, is estimated to exceed 1 billion dollars.
If the other two proposals from New Mexico, Aamodt (involving the
Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque) and Abeyta
(involving the Pueblo of Taos), about which the Administration also has
raised serious concerns, were to be enacted as currently envisioned by
their proponents, total expenditures for Indian water rights
settlements in New Mexico alone are likely to exceed $1.5 billion.
The Administration believes that the policy guidance found in the
Criteria and Procedures for the Participation of the Federal Government
in Negotiations for the Settlement of Indian Water Rights Claims
(``Criteria'') (55 Fed. Reg. 9223 (1990)) provides a flexible framework
in which we can evaluate the merits of this bill. The Criteria provide
guidance on the appropriate level of Federal contribution to the
settlements, incorporating consideration of calculable legal exposure
plus costs related to Federal trust or programmatic responsibilities.
In addition, the Criteria call for settlements to contain non-Federal
cost-share proportionate to the benefits received by the non-Federal
parties, and specify that the total cost of a settlement to all parties
should not exceed the value of the existing claims as calculated by the
Federal Government. As we have testified previously, the Criteria is a
tool that allows the Administration to evaluate each settlement in its
unique context while also establishing a process that provides guidance
upon which proponents of settlements can rely.
Provisions of Particular Concern in H.R. 1970
We would like in the remainder of this statement to provide a
synopsis of substantive concerns regarding H.R. 1970. We will start
with the high cost of this settlement. The Administration has concerns
about the costs associated with this legislation, and currently opposes
the nearly $1 billion financial commitment embodied in this bill. We
are also concerned about the large number of authorizations that the
bill contains, including the indefinite amount authorized for
construction of the Navajo-Gallup Pipeline. We have not yet been able
to fully analyze the costs of this legislation. In 2005, the Bureau of
Reclamation estimated that the price of the Navajo-Gallup pipeline
would be approximately $716 million. Reclamation is in the process of
updating this appraisal-level price estimate to better reflect current
construction conditions, and expects an upward adjustment to nearly $1
billion for this feature alone. In addition, H.R. 1970 would authorize
Federal expenditures of $30 million for groundwater wells, $23 million
for rehabilitation of Fruitland-Cambridge and Hogback-Cudei irrigation
projects, $11 million for other irrigation projects, $5 million for
hydrographic surveys, and $50 million to be placed in a Navajo Nation
Water Resources Development Trust Fund to be used by the Navajo Nation
for water facility construction and maintenance or implementation of
water conservation measures.
The Administration has serious concerns regarding the proposal
contained in Title II of this bill to establish a ``Reclamation Water
Settlements Fund'' within the United States Treasury. Title II provides
that revenues of up to $100 million a year for Fiscal Years 2018
through 2028, which is a time period outside the Congressional
scorekeeping window, be diverted from the Reclamation Fund into the
Water Settlements Fund. H.R. 1970 provides that moneys in the Water
Settlements Fund would be available without further appropriation to
fund water supply infrastructure authorized under this bill if there
turns out to be insufficient funding available through the regular
appropriations process to meet the funding and construction deadlines
established in this bill. The second priority for the Water Settlements
Fund would be to implement other Indian water rights settlements
approved by Congress, including water supply infrastructure,
rehabilitation of water delivery systems, fish and wildlife restoration
or environmental improvement. The Reclamation Water Settlements Fund
would terminate in 2030 and any remaining balance would be transferred
to the General Fund of the Treasury.
We believe the sponsors of this legislation are looking for stable
mechanisms to ensure the availability of funding for Indian water
rights settlements around the West. We are concerned, however, that
this proposal would allow direct spending not subject to further
appropriations for future settlements, preventing future Presidents and
Congresses from setting their own priorities with regard to budgeting
and appropriating Federal tax dollars. At the present time, use of
monies from the Reclamation Fund are discretionary and subject to
annual appropriations by Congress.
While H.R. 1970 does require some cost-sharing in the form of a
requirement for partial reimbursement of construction costs from the
City of Gallup and the Jicarilla Apache Nation, it is limited. The City
of Gallup and the Jicarilla Apache Nation would be required to repay
the portion of the construction costs for the pipeline and associated
facilities that the Secretary would allocate to them as their
responsibility, but only to the extent of their ability to pay, or
alternatively, a minimum of 25% of such allocated construction costs,
within 50 years of project completion.
Project proponents assert that the Navajo-Gallup Pipeline Project
would qualify as a rural water project under the rural water program
being established by the Bureau of Reclamation pursuant to the Rural
Water Supply Act of 2006 (P.L. 109-451), legislation which was passed
in December of 2006. However, the proposed pipelines envisioned by this
bill have not received the level of scrutiny that this newly
established program will provide. Under the rural water program, each
project must be investigated prior to authorization, and the Secretary
must consider whether the non-Federal project entity has the capability
to pay 100 percent of the costs associated with the operations,
maintenance, and replacement of the facilities constructed or developed
as part of the rural water supply project. The Secretary must also
recommend an appropriate non-Federal cost-share for the proposed rural
water project based on the capability-to-pay of project sponsors, or at
least 25% of total construction costs. The program allows the Secretary
to consider deferring construction costs allocated to Indian tribes.
Under this new program, the Secretary is to forward to Congress
recommendations regarding whether or not the proposed rural water
project should be authorized for construction based upon appraisal
level and feasibility studies and the eligibility and prioritization
criteria developed pursuant to the Rural Water Supply Act. The rural
water program is intended to target communities of 50,000 inhabitants
or fewer. The Secretary may require larger communities to pay a higher
portion of project costs. Since Reclamation's rural water program is
still under development, we have not evaluated the activities proposed
in H.R. 1970 under the rural water project eligibility and
prioritization criteria; these criteria are currently being developed
by Reclamation. Upon development, we will actively evaluate whether
this project would meet such criteria and could be recommended to
Congress for authorization as a rural water project.
We have identified a number of other concerns regarding this bill.
These include potential interpretation conflicts concerning the Navajo
Indian Irrigation Project; the timing of transfers of title to the
Nation; the authorization of Federal grants to support the repair and
rehabilitation of certain irrigation projects, and concern that this
bill might give the State of New Mexico an inappropriate role in the
operation of Federal facilities that are currently operated by the
United States under the Colorado River Compact and Reclamation law.
Also, the Department of Justice has concerns about the waivers and
releases referred to in section 403. First, they are still reviewing
these waivers and releases for adequacy. Second, waivers and releases
should be stated in full in the legislation because they are critical
to the finality of the agreements.
We also note that the bill should require the Secretary of the
Interior, rather than the Secretary of the Treasury, to invest amounts
in the proposed Reclamation Water Settlements Fund, in order to make
use of the investment expertise of Interior's Office of the Special
Trustee for American Indians.
Comparing this Bill with Other Water Rights Settlements
Much has been said about the position taken by the Administration
on water rights and other settlements over the past few years,
suggesting that not supporting H.R. 1970 as written would be
inconsistent with the positions we have taken on previously introduced
water settlement bills. We want to squarely address these issues.
First, we emphasize that each proposed settlement is unique. The
Administration evaluates each proposed settlement individually. Just as
we did with each of the water settlements that have been proposed in
recent years, notably the Arizona Water Rights Settlement Act (P.L.
108-451), the Snake River Water Rights Settlement Act (P.L. 108-447),
and the San Joaquin River settlement that is proposed in legislation
pending in this Congress (S. 27 and H.R. 24), the Administration must
evaluate this proposed settlement in its unique context to determine to
what extent it is consistent with our programmatic objectives and our
responsibility to American taxpayers as well as our responsibility to
protect the interests of the Navajo Nation. All of these previous
settlements encompassed multiple objectives, providing comprehensive
solutions to multi-faceted problems.
In the case of the Arizona Water Rights Settlement Act, the
settlement resolved a dispute over the financial repayment obligation
of Arizona water users for the Central Arizona Project (CAP), with
significant amounts of money at stake. Federal representatives
recognized that the CAP operational flexibility necessary to resolve
the dispute could only be granted if sufficient legal and legislative
protection was achieved to assure tribal access to, and use of, CAP
project water. Enactment of the Indian water rights settlements in that
Act was key to resolving larger legal issues involving CAP repayments
by Arizona water users. Achieving final settlement of these larger
issues made the legislation generally acceptable to the Administration,
although our testimony did express concern about the cost of the
settlement.
The Snake River Settlement in Idaho entailed several complex
Endangered Species Act components that allowed further water resources
development to occur for the Nez Perce Tribe and other water users in a
manner that also fulfilled the Department's obligation to protect and
recover listed species.
The other settlement that has been compared to this bill, the San
Joaquin Restoration Program, is in fact not connected to any Indian
water rights settlement. The San Joaquin Restoration Program implements
a settlement of a lawsuit that had been ongoing for over eighteen
years, where a Federal judge had concluded that Reclamation's
operations violated a provision of California law. The San Joaquin
restoration program also involves cost shares, authorizing up to $250
million of new Federal appropriations but only as a match for non-
Federal funding of the restoration costs. This means that the State of
California and Friant water users are funding a significant portion of
the restoration costs. Approximately $200 million of State bond funds
for projects that will directly contribute to restoration efforts have
already been approved by California voters.
We wish to reiterate however that the Administration is committed
to ensuring consistency with the Criteria and Procedures. The
settlement of the Navajo claims to the San Juan River proposed in this
bill has a high Federal cost without appropriate safeguards that
carrying out the authorized activities would accomplish the goals and
objectives of the proposed settlement. These kinds of analyses should
be completed prior to the passage of such a large settlement proposal.
In light of the goal of finality, it is especially troubling that this
bill does not address the distribution systems that must be constructed
before any water will actually reach the homes of those who need it.
Conclusion
The Administration and Secretary Kempthorne remain committed to
supporting the Indian water right settlement process and ensuring that
such settlements fulfill the Federal Government's responsibilities to
Indian Tribes while also protecting the interests of the taxpaying
public. The Bureau of Reclamation, the Secretary's Indian Water Rights
Office, and many others in the Department are vigorously working to
develop the information and documentation necessary to support a full
and open discussion of this settlement. This includes already having
developed a draft environmental impact statement on the proposed
pipeline and completing the hydrologic determination on water
availability in New Mexico. We expect to have an updated appraisal-
level estimate of the costs of constructing the pipeline completed in
the near future.
The Administration hopes that the entities proposing this
legislation, including the Navajo Nation, the City of Gallup, the State
of New Mexico, and the Jicarilla Apache Nation, will agree to work
together with us towards the common goal: a settlement that will ensure
that the Navajo obtain a secure, economically beneficial water supply
consistent with our obligations to the taxpaying public. A clean,
reliable water supply is of utmost importance to the members of the
Navajo Nation, as it is to all Americans, and the United States is
committed to working towards achieving it. While much work remains
ahead, we are hopeful that this hearing will assist in advancing a
process that results in a successful outcome.
Madam Chairwoman, this completes our statement. We would be happy
to answer any questions the Committee may have.
______
Mrs. Napolitano. Thank you, Mr. Johnson, and next I would
like to call upon Mr. Joe Shirley, Jr., President of Navajo
Nation, Window Rock, Arizona.
STATEMENT OF JOE SHIRLEY, JR., PRESIDENT,
NAVAJO NATION, WINDOW ROCK, ARIZONA
Mr. Shirley. Thank you, Madame Chairwoman Napolitano,
Committee members. Thank you for the opportunity to testify. As
I speak to you now many of the 80,000 Navajo men, women and
children who live within the proposed Navajo Gallup Water
Supply Project service area are hauling water in the backs of
their pickup trucks for drinking, cooking and washing. The
centerpiece of H.R. 1970 would authorize the construction of
the Navajo Gallup Water Supply Project which will supply water
to thousands of Navajo people.
While the project will not entirely eliminate water hauling
on the Navajo Nation, it is a giant step toward that goal, and
it is the foundation that is essential for economic
development. Last month I spoke at an EIS hearing in support of
the Navajo Gallup Water Supply Project. As I listened to the
stories of the Navajo people who have spent their scarce
economic resources hauling water for basic domestic use, it was
impossible not to be moved. At the hearing a local community
presented drawings by Navajo schoolchildren who have never
known running water.
Recently, representatives from the Administration witnessed
firsthand the hardships endured by Navajo families who haul
water from public watering points. While I believe these
officials were moved by what they saw and heard, I understand
that there are concerns that the project is too expensive.
While the anticipated $714 million cost is a significant sum,
the cost of the project and the settlement must be put into
perspective. OMB's assertion that H.R. 1970 is too expensive
may be based on an overly restrictive interpretation of the
criteria and procedures for participating in Indian water
rights settlements.
This view is inconsistent with the three water rights
settlements signed into law by President Bush in the Rural
Water Supply Act of 2005. Further, the ramifications of not
passing this legislation could force the Navajo Nation into
litigation to determine its water rights. Such litigation could
jeopardize the allocations made by interstate compacts
concerning the Colorado River basin. Congress simply cannot
afford to let this settlement fail.
Finally we understand that the State of Arizona has
concerns about both the settlement agreement and legislation
and is advocating a comprehensive settlement to protect its
interests including a resolution that the litigation in Navajo
Nation v. United States. We strongly disagree. The settlement
with New Mexico does not impair Arizona's ability to reach a
settlement with the Navajo Nation concerning its lower basin
claims.
While the settlement envisions the delivery of water to the
lower basin in Window Rock, Arizona, from the project, nothing
diminishes the right of Arizona to negotiate all of the terms
for water delivery to Window Rock as part of a separate
agreement with the Navajo Nation. The Navajo Nation has
attempted to quantify its lower basin claims with Arizona in
the Navajo Nation v. United States litigation.
Settlement discussions with Arizona are ongoing and will
continue regardless of the outcome of the settlement with New
Mexico. However, resolution of Navajo claims in Arizona will
likely take several years. If such a settlement can be reached
without delay or impairment of our settlement with New Mexico,
we would not object to including an Arizona settlement in this
bill. But to require an Arizona settlement in order for New
Mexico to move forward, the Navajo Nation and the State of New
Mexico will be punished for their good faith efforts that
resulted in this concrete settlement.
This settlement would keep the Navajo Nation rights with
the New Mexico's compact apportionment. As such, this
settlement benefits all seven Colorado River basin states, and
we should not jeopardize this achievement by trying to settle
unrelated issues with Arizona. The Navajo Nation and its people
have respected their treaty obligations. In times of crisis,
brave Navajo men and women have rushed to their country's aid
and fought and died not only for the preservation of the
American ideal but also to preserve our Navajo culture and to
secure a Navajo homeland for our children.
A homeland for the Navajo people is not merely a piece of
land between our four sacred mountains but is a place where our
culture, our language, our way of life and our people can live
and grow. Without water, viable economic and social communities
wither and die. So I ask you today to honor the treaty of 1868
and to help bring water to the great Navajo Nation. Thank you
very much.
[The prepared statement of Mr. Shirley follows:]
Statement of President Joe Shirley, Jr.,
Navajo Nation, on H.R.1970
Thank you Chairwoman Napolitano and members of the Water and Power
Subcommittee of the House Committee on Natural Resources. My name is
Joe Shirley, Jr., and I am President of the Navajo Nation, a federally
recognized Indian nation with the largest reservation in the United
States. I appreciate this opportunity to share with you the Navajo
Nation's strong support for House Bill 1970, the Northwestern New
Mexico Rural Water Projects Act. I also wish to convey the gratitude of
the Navajo Nation to Congressman Tom Udall for his commitment to
improving the lives of the Navajo People and for his leadership in
sponsoring this important legislation.
The Northwestern New Mexico Rural Water Projects Act serves two
important purposes. First, it would authorize the Secretary of the
Interior to execute, on behalf of the United States, the Settlement
Agreement to quantify the Navajo Nation's water rights in the San Juan
River Basin in New Mexico. The Settlement Agreement was overwhelmingly
approved by the Navajo Nation Council in December of 2004 and executed
with the State of New Mexico in April of 2005. It reflects almost a
decade of negotiations to carefully balance a variety of demands on a
limited resource. Second, the Act authorizes construction of much
needed water projects for the Navajo Nation. As such, this legislation
represents an important step forward in moving the Navajo Nation
towards self-sufficiency, and may represent the most significant act of
Congress concerning the Navajo people since the ratification of our
Treaty with the United States in 1868, 139 years ago this month.
As witnesses to this important event, I am here with Mr. George
Arthur, Chair of the Resources Committee of the Navajo Nation Council,
Mr. Lorenzo Bates, Chair of the Budget and Finance Committee of the
Navajo Nation Council, Ray Gilmore, Chair of the Navajo Nation Water
Rights Commission, and Lena Fowler, Vice-Chair of the Navajo Nation
Water Rights Commission. In the Treaty of 1868, the Navajo leaders
pledged their honor to keep peace with the United States and, in
return, the United States pledged to assist the Navajo People in
creating a permanent homeland on their reservation lands. No lands can
be a permanent homeland without an adequate supply of water, especially
potable water.
The Settlement Agreement
When New Mexico Governor Richardson and I signed the Settlement
Agreement in April 2005, the State of New Mexico and the Navajo Nation
set into motion the means to resolve a century-old controversy
concerning water rights in the San Juan River basin, which could have
persisted for decades to come through long, protracted litigation. The
State of New Mexico and the Navajo Nation spent years crafting a
settlement that would protect exiting uses from the San Juan River
while ensuring that the Navajo Nation would receive a firm supply of
drinking water to sustain the Navajo Reservation as a permanent
homeland for the Navajo People. House Bill 1970 authorizes the
Secretary of the Interior, on behalf of the United States, to join
Governor Richardson and me in a Settlement Agreement that quantifies
the Navajo Nation's water rights in the San Juan River Basin in New
Mexico in a manner that represents a win-win outcome for all parties,
including the Navajo Nation, the non-Navajo water users, the State of
New Mexico and the United States.
The San Juan River basin contains all the elements that have made
Western water issues so contentious over the years: a limited supply of
water, competition between Indian and non-Indian irrigators, the
presence of federally protected endangered fish species, and not one,
but four federal Reclamation projects. In other basins, that same
mixture of interests has lead to contentious litigation and even
violence. But in the San Juan River basin, the Navajo Nation has worked
in cooperation with its neighbors on issues such as native fish
recovery, shortage sharing during periods of drought, and water
development for municipal and power interests. The history of this
cooperation is reflected throughout the Settlement Agreement.
For example, the Settlement Agreement contains provisions to
protect the interests of the non-Navajo water users in the basin. The
Navajo farmlands at the Hogback and Fruitland irrigation projects,
downstream of the non-Indian water users on the river, possess the
senior priority on the river. Thus, during the dry summer months, when
there is insufficient water in the river to satisfy all water uses, the
Navajo Nation could exercise its senior priority to make a ``call'' on
the river and stop the upstream diversions. To minimize the likelihood
of calls on the upstream diversions, under the Settlement Agreement,
the Navajo Nation has committed to utilize a portion of its Navajo
Reservoir supply at the Hogback and Fruitland projects to ensure that
more ``run of the river'' water would be available for the non-Navajo
water users. Without the settlement, a call would be necessary during
the irrigation season almost every two years, but with the settlement,
the risk that a call will be made is less than one year out of twenty
(20).
The Settlement Agreement also includes specific provisions to firm
the water supply for existing federal Reclamation projects including
the Animas-La Plata Project and the San Juan-Chama Project. The Animas-
La Plata Project is an important project for the basin, and is a
necessary component of the settlement approved by Congress for the
Colorado Ute Tribes. The San Juan-Chama Project provides drinking water
for the cities of Albuquerque and Santa Fe. This transbasin diversion
also helps New Mexico meet its compact obligations to the State of
Texas and provides a supply of water that can be used for two separate
water rights settlements involving the Pueblo of Taos and four northern
Pueblos in the Aamodt litigation.
In terms of protecting federal interests in New Mexico, including
the San Juan-Chama Project, the importance of the Settlement Agreement
to the United States cannot be overstated.
The Navajo-Gallup Water Supply Project
The centerpiece of the Bill, however, is the authorization for
construction of the Northwest New Mexico Rural Water Project, commonly
known as the Navajo-Gallup Water Supply Project. This project will
provide a firm, sustainable supply of municipal water for the Navajo
Reservation, the City of Gallup and the Jicarilla Apache Nation. Many
of the 80,000 Navajo men, women, and children who live within the
project service area, including Navajo Code Talker Frank Chee Willeto,
presently haul water for drinking and cooking. Although construction of
the project will not necessarily eliminate all water hauling on the
reservation, this project will allow the Indian Health Service to
expand distribution systems to provide potable water delivery to more
homes, and creates growth corridors within the Navajo Nation where
future communities can be built with ready access to roads, electricity
and potable water. As such, this project represents a critical
component of the Navajo Nation's economic development strategy. While
construction of the pipeline may not represent a condition sufficient
to ensure economic prosperity for the Navajo People, surely such
prosperity will never be possible in the absence of a sustainable
potable water supply.
In March of this year, the Department of the Interior released the
Planning Report and Draft Environmental Impact Statement for this
project. I thank Secretary Kempthorne and his Counselor Michael Bogert
for their leadership in releasing this critical document, in addition
to the release of the hydrologic determination that there is sufficient
water for the project.
Earlier this month, I spoke at the public hearing in Farmington,
New Mexico, concerning the project in order to deliver the message that
the Navajo Nation strongly supports the construction of the Navajo
Gallup Water Supply Project. At the hearing, I was moved by the
testimony of the Navajo people, most of them water haulers. I believe
that the federal officials at the hearings were also moved by their
testimonies. Mr. Frank Chee Willeto, a Navajo veteran and former Navajo
Code Talker, who recently received the Congressional Silver Medal,
eloquently testified that he and other veterans, despite financial
assistance from the Veterans' Administration and the Navajo Nation,
were unable to secure a loan for his home due to the absence of water
in his community for fire protection. Ms. Gloria Skeet spoke eloquently
about how Bread Springs Chapter, south of Gallup, needs the project
because her community currently faces water shortages. Ms. Skeet, a
former educator, sees that the construction of the project will allow
our children to build productive and meaningful lives at home. I also
viewed drawings by Navajo school children from Lake Valley Chapter
depicting trucks hauling drinking water to their homes. These drawings
will be submitted to the Committee in our supplemental statement. Based
on these testimonies, I reiterate my message that the Navajo Nation
strongly supports the construction of the Navajo-Gallup Water Supply
Project.
OMB Concerns about Costs
We recently invited representatives from the Administration,
including the Department of the Interior and the Office of Management
and Budget, to witness first-hand the hardships endured by Navajo
families who must drive considerable distance to haul water from public
watering points. They heard and saw everything I have just described to
you. They also heard about the negative health effects that occur when
they do not have access to potable water, including the story of Lucy
Cayetano who suffers from various illnesses because she does not have
easy access to potable water. Studies have shown empirically that the
lack of potable water is a critical health issue for the Navajo people,
but I also wonder what the psychological effects will be for our
children who believe that water comes from trucks, rather than from
drinking fountains or faucets.
We believe the Administration representatives received a realistic,
first-hand understanding of the enormity of the problem the lack of
water brings. However, we also understand that the Office of Management
and Budget believes the Navajo-Gallup Water Supply Project to be ``too
expensive.'' Their belief is apparently based on the Planning Report
for the project, in which the Bureau of Reclamation estimates that this
project could cost as much as $714 million or more. While this is
unquestionably a huge amount of money, the anticipated cost of the
project and the other components of the Navajo Nation's water rights
settlement must be put into perspective.
As stated earlier, the Navajo Reservation is the largest Indian
Reservation with the largest population of on-reservation members of
any Indian tribe in the United States. Providing potable water for such
a large reservation is indeed a costly venture, but studies conducted
by the Bureau of Reclamation demonstrate that this project fares
favorably when compared with other recently authorized water pipelines
on a per/acre-foot and per capita basis. This information will be
provided to the Committee in our supplemental statement.
We understand that OMB seeks to impose on this settlement an overly
restrictive interpretation of the Administration's criteria and
procedures for participating in this settlement. In particular, OMB
apparently seeks to limit the federal contribution for this water
rights settlement to their assessment of the monetary liability of the
United States if it is sued by the Navajo Nation. Such a policy is a
radical departure from previous Administrations, and is not even
consistent with the position taken by the Administration in the three
settlements recently signed into law by President Bush--the Arizona
Water Rights Settlement Act, the Snake River Water Rights Settlement
and the Zuni Tribe Water Rights Settlement. This inconsistency was
described in a recent joint letter to OMB from Chairman Bingaman and
Senator Domenici. Once again, I thank the Senators for their dedication
to this settlement by having pointed out to OMB these inconsistencies.
Moreover, OMB's interpretation flies in the face of the
Administration's past support for the Rural Water Supply Act of 2005 in
which the federal government would assume up to 75% of the cost of
rural water projects. The federal contribution for such projects is not
limited by any calculus of liability to the project participants. OMB's
policy is especially appalling considering the trust responsibility and
treaty obligations owed by the United States to the Navajo Nation. The
United States Supreme Court has characterized these responsibilities as
``moral obligations of the highest responsibility and trust.'' Simply
put, the federal government should not be allowed to shirk its trust
responsibility or its treaty commitments with Indian nations by hiding
behind a veil constructed of legalese that can be applied to the
detriment of the poorest of the poor in America.
Of particular concern to the Navajo Nation is that OMB is now
objecting to the construction of infrastructure projects as a mechanism
for settling Indian water rights, even though the Administration
apparently supports the concept of encouraging Indian water rights
settlements. In the desert Southwest, where the available water
resources are largely exhausted, the only way for settlements to work
is by infusing the limited natural resource pool with the financial
resources to allow the existing water supplies be used more
advantageously. As a general premise, these settlements do not
reallocate water from existing non-Indian water users for the benefit
of an Indian tribe. In the San Juan River basin, there is very little
unused water for the purpose of settling the Navajo claims. Under the
terms of the Settlement Agreement, the Navajo Nation is awarded only
the water it has historically used, the water set aside for the
Nation's use at the Navajo Indian Irrigation Project, and the water for
the Navajo-Gallup Water Supply Project. The Settlement Agreement is
premised on the Navajo Nation receiving a substantial amount of ``wet
water'' development to forgo claims for additional water. In short,
without the federal government contributing the monetary resources to
make this settlement work, the settlement would not be possible.
Although we do not believe OMB should apply the criteria and
procedures for participating in settlements in such a restrictive way,
we are confident that if OMB considers all of the ramifications of
letting this settlement fail, the ultimate costs to the federal
government could be staggering. Consider first, the claims of the
Navajo Nation. The Navajo Nation's water rights claims are based on
legal precedent established by the United States Supreme Court. The
Navajo Nation's water rights claims could exceed the amount of water
apportioned to New Mexico by the Upper Colorado River Basin Compact,
which was ratified by Congress in 1949. These claims have been
described by various legal scholars as ``hypothetical shocks to the
Colorado River system.'' If this is true, there are only two outcomes,
neither of which are favorable to the United States. If the courts
ultimately rule that the Navajo claims are limited by the compact
because of the ratification by the United States, the Navajo Nation has
a substantial claim against the United States for the lost water
rights. On the other hand, if the courts ultimately rule that the
Navajo Nation is entitled to water in excess of New Mexico's
apportionment, then the entire system of allocation of Colorado River
water would be in jeopardy exposing the United States to incalculable
liability to a multitude of water users in the seven Colorado River
states. The beauty of the Settlement Agreement is that by keeping the
Navajo Nation's water rights within the State of New Mexico's compact
allocation, the ``hypothetical shocks to the Colorado River system''
are avoided. But without the substantial water development
infrastructure authorized by House Bill 1970, such a settlement is not
possible.
If the settlement were to fail, and the Navajo Nation were forced
to pursue the litigation of its claims, the United States would still
be exposed to horrific liabilities even if the Navajo Nation were to
obtain only modest water rights. The federal government historically
promoted the utilization of waters from the San Juan River by non-
Navajos through such projects as the San Juan-Chama diversion, the
Hammond Irrigation Project, the Jicarilla Apache Water Rights
Settlement, and the Animas-La Plata Project. However, because the
Navajo Nation is the senior water user in the basin, an award of even a
modest amount of water to the Navajo Nation would disrupt the water
supplies for each of these federal interests and leave the United
States exposed to considerable liability. As I mentioned earlier, the
San Juan-Chama Project serves a myriad of federal interests in addition
to providing a water supply to the cities of Albuquerque and Santa Fe.
While OMB may frame the issue in terms of whether we can afford this
settlement, we believe the issue is whether we can afford not to have
the settlement. Under any measure, the Congress simply cannot afford to
let this settlement fail.
Currently, forty percent (40%) of the families on the Navajo
Reservation are forced to transport water from regional water pumping
stations to their homes to ensure that their families have potable
water. In the wake of Hurricane Katrina, Congress rightly recognized
the emergency that existed when so many people were deprived of potable
water and infrastructure. Congress moved to fix this emergency through
the authorization of billions of dollars to restore the water
infrastructure in New Orleans and various coastal communities. The
tragic circumstance experienced by the residents of New Orleans
deserved swift and decisive action on the part of the federal
government. Unfortunately, on the Navajo Nation, the lack of potable
water and infrastructure is a condition that has existed for a long
time. It appears that OMB is again applying a double standard when it
comes to funding water infrastructure to remedy acute water supply
problems. OMB did not ask Congress to consider the limits of its
liability to victims of Katrina or to consider whether a federal trust
responsibility required such action in order to avoid spending the
money necessary to fix the problem. In the case of Katrina, Congress
did the right thing. We ask Congress to do the right thing again by
enacting House Bill 1970.
Arizona Concerns
Finally, we know that the State of Arizona has concerns about the
language in H.R. 1970 that deals with delivery of water to Window Rock,
Arizona. The Settlement Agreement and the provisions of H.R. 1970
preserve all rights for the State of Arizona to negotiate all of the
terms and conditions for water delivery to Window Rock as part of a
separate agreement with the Navajo Nation. We do not believe, as
Arizona does, that a ``comprehensive'' settlement of all of the Navajo
Nation's water rights claims is necessary to protect Arizona's
interests. In the first instance, a ``comprehensive'' settlement should
include all of the Navajo Nation's interests in Utah as well as the
Upper and Lower Colorado River Basins in Arizona. The Navajo Nation has
been actively attempting to quantify its Lower Basin claims through
negotiations with Arizona water interests, but no negotiations
concerning Upper Basin claims have been attempted. We have advised the
Arizona water interests that we are willing to pursue a negotiated
settlement of the Lower Basin claims, but we are not willing to
jeopardize the authorization of our settlement with the State of New
Mexico to accommodate the Arizona interests. Moreover, we have serious
doubts whether a settlement of the Arizona claims can be achieved. It
appears that after passage of the Arizona Water Settlements Act, there
is very little Colorado River water remaining for purposes of a
settlement with the Navajo Nation.
Frankly we believe that Arizona is simply attempting to leverage a
settlement with the Navajo Nation that falls short of meeting the
Navajo Nation's needs, by demanding that the New Mexico settlement
include a partial settlement with Arizona. Nevertheless, we are
committed to continued dialogue with the Arizona interests to determine
if a settlement is possible and to resolve any remaining issues they
may have concerning the settlement with the State of New Mexico.
Conclusion
For more than one hundred and thirty nine years, the Navajo Nation
and the Navajo People have taken their treaty obligations seriously. In
times of crisis, brave Navajo men and women have rushed to the
country's aide, and fought and died not only for the preservation of
the American ideal, but also to preserve the Navajo culture and to
secure a Navajo homeland. A homeland for the Navajo People is not
merely a piece of land between our four sacred mountains but a place
where our culture, our language, our people can grow and live. Without
water, viable economic and social communities wither and die. I am
asking you today to honor the Treaty of 1868 and help bring water to
the Navajo Nation.
______
Response to questions submitted for the record by
Joe Shirley, Jr., on H.R. 1970
(SHIRLEY) The Administration has referred to the C&P as the means to
determine the federal role and contribution to the settlement.
How do you see these criteria and procedures applying to this
settlement?
The C&P require the federal government to look at numerous factors
including, but not limited to, the liability of the United States. The
Administration has never provided the Navajo Nation with its analysis
of the C&P or how much the Administration is willing to support as a
federal contribution to the settlement. We understand that the
Administration may be interpreting the C&P in a manner that focuses
solely on the liability of the United States while ignoring other
aspects of the C&P. If this is true, such an interpretation by the
Administration is overly restrictive and inconsistent with the
positions taken by this administration with respect to other Indian
water rights settlements signed into law by President Bush.
Even if the sole criteria for evaluating the United States'
contribution to an Indian water settlement were the theoretical
liability of the United States, I believe that the ramifications of
letting the settlement fail are so widespread and pervasive, that the
real question for the United States is not whether it can afford the
settlement, but whether it can afford not to have the settlement. The
Navajo Nation is in the process of developing a detailed analysis
outlining how the federal government would be subject to significant
liabilities in the event this settlement fails. This analysis will be
provided to the Administration and can be made available to the
Subcommittee.
We believe that the United States has substantial exposure for
liabilities to the Navajo Nation for failing to protect our water
rights, for failing to enjoin others from using water to the detriment
of the Navajo Nation, and for encouraging non-Indian water development
within the San Juan River basin. In addition to liability to the Navajo
Nation, the United States faces potential liability not just to the
Navajo Nation but to many other parties within and outside the San Juan
River basin. Under almost any litigation outcome, the United States
would be exposed to significant liability.
In the event that the settlement fails, and the Navajo Nation were
forced to litigate its water rights claims, the Navajo Nation would
claim all of the water necessary to ensure a permanent homeland for the
Navajo people. Such claims would include not only past and present
water uses, but additional water for mining and energy development,
domestic and municipal uses, commercial and industrial development, and
additional irrigation. Experts working for the Navajo Nation and the
United States have identified a number of water claim scenarios that
range from modest to substantial claims. We believe that any litigation
outcome would award the Navajo Nation more water than they would
receive by way of the settlement. The water awarded to the Navajo
Nation in this settlement is surely less than water that the Nation
could obtain through litigation. (The water in the settlement is
essentially: (1) water for existing Navajo irrigation projects at
Hogback and Fruitland; (2) water for the Navajo Indian Irrigation
Project promised by the 1962 Act of Congress; and (3) about 22,000
acre-feet of ``new water'' for the Navajo-Gallup Water Supply Project.)
Therefore, any litigation displaces existing water users and
potentially creates federal liability with respect to those users.
With the settlement the State of New Mexico will be extremely close
to full water development under its compact apportionment. Therefore,
any water the Navajo Nation would obtain over and above the water
specified in the settlement threatens existing water users and
jeopardizes the ability of New Mexico to stay within its compact
apportionment. It does not take a significant claim by the Navajo
Nation to achieve this result. For example, the settlement agreement
limits Navajo acreage at the Hogback and Fruitland irrigation projects
to 12,165 acres, but the Congressional record on Public Law 87-483
makes reference to a possible 26,000 acres of irrigable land at just
these two sites. See: Senate Report No. 2198. The water for this
additional acreage would have to come either from existing water users
or from water in excess of New Mexico's compact apportionment. In
addition, experts for the Navajo Nation and the United States have
identified additional irrigable acreage upon which substantial claims
could be based. Even a modest award of additional acreage would cause
disruption of existing water uses.
Recent decisions in various water adjudications confirm that Indian
tribes are entitled to all the water necessary to make their
reservations livable as permanent homelands. Such water uses include
water for municipal, commercial and industrial purposes. The Navajo
Reservation has a substantial population and continued population
growth can be expected if the Navajo Nation had sufficient water
resources. The municipal water in the settlement agreement is based on
a projected forty (40) year projection. If the Navajo Nation were to
litigate its claims, it would seek a supply for a much longer period of
time. In addition, the Navajo Nation possesses an abundance of natural
resources including coal, oil and gas, and uranium. The Navajo Nation
claims the waters necessary to develop these resources, including water
for energy generation.
Even a modest award of water to the Navajo Nation would prove
disruptive to existing water users, including upstream irrigation uses,
water diversions for two coal fired generating stations, and the water
for the municipalities in the basin. In addition to impacts on these
run-of-the river diverters, in order to meet additional downstream
Navajo uses, water that would have otherwise been stored at Navajo
Reservoir and in the Animas-La Plata Project would be bypassed creating
potential shortages to the various federal interests that rely on this
water including the Animas-La Plata Project, the Hammond Conservancy
District, the Jicarilla Apache Nation, and the San Juan-Chama Project.
With respect to the San Juan-Chama Project, the project provides a
portion of the water supply for the cities of Albuquerque and Santa Fe,
and project water is proposed as the supply necessary to settle the
water rights claims of Taos Pueblo and the four Pueblos in the Aamodt
litigation. The Navajo Nation's water rights claims threaten the water
supply for the San Juan-Chama Project which diverts approximately
110,000 acre-feet of water per year from the San Juan basin into the
Rio Grande Basin. San Juan-Chama Project water currently leases for
$100 per acre-foot per year. Perpetual water rights in the Rio Grande
Basin have been selling for $10,000 to $20,000 per acre-foot. Thus, the
value of 110,000 acre-feet as a permanent supply of water in the Rio
Grande Basin is $1.1 to $2.2 billion. By any measure, the United States
cannot afford to let the settlement fail, even if the Navajo Nation
were only to receive a modest amount of additional water.
The scenarios for even greater exposure could accrue if the Navajo
Nation were successful in bringing a more substantial claim in the
adjudication. Numerous law review articles have been brought concerning
the potential Navajo claims. These articles suggest that were the
Navajo Nation to prevail on its claims, the implications on the entire
Colorado River water system could be devastating. For example, some
commentators refer to the unquantified rights of the Navajo Nation as
posing a ``hypothetical shock'' to the Colorado River. Allen V. Kneese
and Gilbert Bonem, Hypothetical Shocks to Water Allocation Institutions
in the Colorado Basin, New Courses for the Colorado River: Major Issues
for the Next Century at 97 (Weatherford & Brown, eds. 1986). See also
William Douglas Back & Jeffrey S. Taylor, Navajo Water Rights: Pulling
the Plug on the Colorado River?, 20 Natural Resources Journal 71, 74
(1980) (``If Navajo Winters rights ever are adjudicated, the potential
award is staggering.'') Therefore, the proposed settlement not only
benefits the Navajo Nation and the State of New Mexico, but the entire
Colorado River system. If the settlement fails, the potential liability
of the United States for disruption of water uses within the Colorado
River system is too massive to calculate.
Aside from the potential liability of the United States in the
event that the settlement were to fail, the proposed settlement is
consistent with other provisions in the C&P that the Administration has
ignored. For example:
First, the C&P require that the tribe receives equivalent benefits
for rights which they, and the United States as trustee, may release as
part of a settlement. There is very little unappropriated water within
New Mexico's compact apportionment. In order for a settlement between
the State of New Mexico and the Navajo Nation to succeed, it is
necessary that the Navajo Nation relinquish substantial claims for
future water uses based on well-established federal law set forth by
the United States Supreme Court in its Winters v. United States and
Arizona v. California decisions. We believe the value of these
potential water rights claims may actually exceed the cost of the
settlement.
Second, the C&P require that the Indians obtain the ability as part
of each settlement to realize value from the confirmed water rights
resulting from the settlement. A confirmed ``paper'' water right has
limited value for an Indian Nation where so many of its citizens lack
the basic infrastructure to have running water in their homes. The
centerpiece of the proposed settlement is the authorization and
construction of the Navajo-Gallup Water Supply Project which would
allow the Navajo People to realize true value from their confirmed
water rights.
Third, the C&P require that settlements be structured to promote
economic efficiency on reservations and tribal self-sufficiency. A
report entitled Water Resource Development Strategy for the Navajo
Nation, July 17, 2000 concludes that ``the lack of a reliable and
affordable potable water supply stifles economic growth throughout the
reservation'' and that ``[t]he lack of infrastructure, the lack of
economic development and the sustained poverty are closely connected.''
Without developed water infrastructure economic development
infrastructure is impossible. The Project will provide a backbone of
water infrastructure for the Eastern portion of the Navajo Reservation.
Economists from the University of New Mexico evaluated the socio-
economic benefits from the proposed Navajo-Gallup Water Supply Project
and concluded that the project would provide an ``economic stimulus to
the region'' and in terms of the human need, the report states ``[i]n
terms of where money can be spent to improve people's lives, you'd be
hard-pressed to find another place in the country with greater need.''
See: Quantum 2007 at 15, http://research.unm.edu/quantum/
quantum2007.pdf, attached here as Attachment 1.
Fourth, the settlement is consistent with the principles in the C&P
that disfavor United State's ``participation in economically
unjustified irrigation investment.'' The C&P affirmatively endorse
``investments for delivery of water for households, gardens, or
domestic livestock'' and go on to say that such investments in such
water deliveries may be exempted from the strict application of the
criterion. See: 55 Federal Register at 9224 (March 12, 1990).
Finally, we note that the United States has spent considerable
resources building rural water projects in the Western United States
similar to the Navajo-Gallup Water Supply Project. The proposed project
in our settlement compares favorably to these other water projects. The
graph included here as Attachment 2 shows that the cost of the Navajo-
Gallup Water Supply Project has a more favorable cost per person served
than many other rural water projects, most of which have been
authorized and funded by the United States. Similarly, the graph
included here as Attachment 3 provides the same comparison with other
projects on a cost per acre-feet of capacity basis. Again, the Navajo-
Gallup Water Supply project compares favorably. If the United States
can fund and build rural water supply projects throughout the West
without requiring an Indian water settlement, surely a project that is
included as part of an Indian water settlement should pass muster with
the United States.
Under any measure, this settlement is justified by a fair reading
of the entire C&P.
(SHIRLEY) For the record, could you please briefly state the Navajo
goals for the settlement?
As we told the federal assessment team and the federal negotiation
team, the Navajo Nation seeks a water rights settlement that provides:
CERTAINTY. Certainty as to what our water rights are,
including the water rights for the Navajo Indian Irrigation Project
which were not fully described in the 1962 Act. To fully develop a
permanent homeland for the Navajo People requires knowing the full
extent of our water resources.
WET WATER. A ``paper'' water right does not benefit
people who must haul their drinking water. The Navajo Nation is
forgoing a large paper water right in exchange for a smaller paper
water right, conditioned on the wet water development outlined in the
settlement legislation, including the Navajo-Gallup Water Supply
Project.
FAIRNESS. The United States pledged to provide a
permanent homeland on the Navajo Reservation in the Treaty of 1868. The
federal government has a trust obligation to provide the Navajo People
with the basic necessities of life, including potable water. By this
settlement, the Navajo Nation is giving up valuable water rights in
exchange for a water supply project that the United States should have
built for the Navajo People a long time ago. We expect to be treated
fairly by our trustee.
PEACE. We want a settlement that will reduce the
possibilities of future conflicts with our neighbors. Our settlement is
structured to create partnerships between the Navajo Nation and its
neighbors--the City of Gallup, the Jicarilla Apache Nation, and the
City of Farmington, which has passed a resolution in support of the
settlement.
(SHIRLEY) How has the Navajo Nation dealt with Arizona's objections to
moving H.R. 1970 until they negotiate and finalize their Indian
water rights claims?
The Navajo Nation is committed to good faith water rights
negotiations with the State of Arizona. In the late 1990's we engaged
in serious settlement discussions with the Arizona water users
concerning the Navajo Nation's water rights in the Little Colorado
River basin. Those discussions broke down, but were revived only after
the Navajo Nation filed its lawsuit in Navajo Nation v. United States
concerning Navajo claims to the mainstream of the Colorado River in the
Lower Colorado River Basin in Arizona.
Although we are negotiating in good faith, we are not certain
whether a negotiated settlement Arizona is even possible, let alone
imminent. We have a settlement with the State of New Mexico because it
is based on identifying and satisfying the needs of the Navajo people
in New Mexico. We are disappointed that the Arizona testimony talks
about the need to resolve litigation with the Navajo Nation, but no
acknowledgment of the real needs of the Navajo Nation to obtain
sufficient water rights to create a permanent homeland. And, continue
to be frustrated in our settlement efforts with the Arizona parties
because there is no real discussion of the needs of the Navajo Nation.
Instead all discussions with Arizona focus only on the limited
resources the Arizona parties are willing to offer. Frankly, we are
unsure of whether a settlement is possible with Arizona given that the
state parties insist that a Navajo settlement fits within the
parameters of the Arizona Water Settlements Act which contains only a
limited amount of water and money.
If a settlement with Arizona can be achieved without compromising
or delaying the New Mexico settlement, then we would be happy to have a
more comprehensive settlement, but the New Mexico settlement is crafted
in a manner that does not require resolution of the Navajo water rights
issues with the State of Arizona, and Arizona's ability to reach a
settlement with the Navajo Nation will not be impaired if a New Mexico
settlement moves forward separately, Frankly we believe that Arizona is
simply attempting to leverage a settlement with the Navajo Nation that
fails short of meeting the Navajo Nation's needs, by demanding that the
New Mexico settlement include a partial settlement with Arizona.
Requiring a settlement with Arizona gives too many parties without
an interest in New Mexico, including the Hopi Tribe, and various non-
New Mexico interests, veto power over our New Mexico settlement. In
short, it is our view that linking the New Mexico settlement to the
Arizona negotiations will only serve to slow the Arizona negotiations
even further.
(SHIRLEY) If the development of water resources improves the Navajo
Nation's economy, will they repay a portion of the costs of the
project?
As noted in my answer to the first question, economists from the
University of New Mexico believe that the project would provide an
``economic stimulus to the region.'' Notwithstanding the potential for
improvement of the Navajo Nation's economy, the Navajo Nation has given
up valuable water rights in exchange for the benefits outlined in the
settlement. Were the Navajo Nation to repay a portion of the costs of
the project to the United States, the Navajo Nation would be forfeiting
the benefit of the bargain it made. Thus, the Navajo Nation has already
contributed to the costs of the project through the relinquishment of
greater claims to water from the San Juan River.
Moreover, the Navajo Nation will contribute additional value to the
costs of the project. The Navajo Nation is already providing invaluable
technical assistance to the Steering Committee for the project and it
is anticipated that the Navajo Nation will waive rights-of-way
consideration to almost 270 miles of pipeline.
(SHIRLEY) Mr. Shirley, will the project water be used for other
industrial purposes?
The design criteria used in the Draft EIS for the Navajo-Gallup
Water Supply specifies capacity of 29,062 acre-feet per year for the
Navajo Nation including, 6410 acre-feet in Window Rock, Arizona. These
capacities are based on a projected forty (40) year demand for domestic
and municipal water in the project service area. Certainly this
capacity will not be sufficient to meet all the long-term needs
domestic and municipal water needs in the service area. There is simply
no capacity in this project for the water to be used for industrial
purposes; however, in the early years following construction, it is
conceivable that the pipeline could be used to convey water for short-
term industrial purposes until the domestic and municipal demands fully
materialize. While the settlement agreement with the Navajo Nation
allows project water to be used for a variety of purposes, it is highly
unlikely that any industry would commit to using project water on a
short-term temporary basis.
(To WHOEVER) The Jicarilla Tribe is currently receiving funds for the
Jicarilla Apache Reservation Rural Water System rural water
project. How do the funds from this legislation relate to the
current project funds?
My understanding is that the funding for the Jicarilla Apache
Reservation Rural Water System is intended to build a water
distribution system for the community of Dulce, the tribal
headquarters, and surrounding areas. The Northwestern New Mexico Rural
Water Supply Project (Navajo-Gallup Water Supply Project) will deliver
water to Counselor, New Mexico, near the Jicarilla Apache Reservation
for use in the southern portion of the reservation.
(To WHOEVER) Who is responsible for the operation and maintenance
costs? Who will own the infrastructure once it is completed?
Section 304 of H.R. 1970 provides that the three project
beneficiaries, the Navajo Nation, the Jicarilla Apache Nation and the
City of Gallup, will pay their respective allocable costs for
operation, maintenance and replacement of the project. A limited waiver
for up to ten years would be authorized for the Navajo Nation pursuant
to subsection 304(f), if the Secretary of the Interior determines that
the cost of OM&R allocable to the Navajo Nation exceeds its ability to
pay. Subsection 302(f) authorizes the Secretary, upon completion of
construction and execution of an operations agreement, to convey those
portions of the project located within the Gallup city limits to the
city and the rest of the project facilities to the Navajo Nation. No
portion of the project will be located on Jicarilla lands. Paragraph
304(b)(5) requires financial assurances satisfactory to the Secretary
if title is transferred to the city prior to repayment.
______
Mrs. Napolitano. Thank you, sir. I appreciate you being
here. Mr. Jim Dunlap, Chairman, Interstate Stream Commission of
the State of New Mexico, Santa Fe, New Mexico.
STATEMENT OF JIM DUNLAP, CHAIRMAN, INTERSTATE STREAM COMMISSION
OF THE STATE OF NEW MEXICO, SANTA FE, NEW MEXICO
Mr. Dunlap. Thank you, Madame Chairwoman. I am Jim Dunlap,
Chairman of the New Mexico Interstate Streams Commission. I
appreciate the opportunity to appear before you today to
provide comments on behalf of the State of New Mexico in
support of the Northwest New Mexico Rural Water Projects Act. I
want to say that I appreciate Representative Udall's efforts in
proposing House Bill 1970, which will authorize construction of
a very important rural drinking water system for northwest New
Mexico and the Navajo Nation.
This project is vital in solving the acute water supply
conditions facing much of northwest New Mexico including a
large portion of the Navajo Nation. The project will provide
the backbone of a regional water supply that will enable Navajo
families to receive safe drinking water, a basic right that
virtually all other U.S. citizens take for granted.
By 2040 this project is expected to serve approximately a
quarter of a million people including the residents of Gallup,
New Mexico, that currently rely on unsustainable groundwater
supply. In 1868, the Federal government formed the reservation
and placed the Navajo people on it with the promise of a water
supply. Madame Chairwoman, it is a disgrace that the citizens
of this Nation do not have access to safe drinking water and
still have to haul their water.
The Federal administration needs to acknowledge the human
needs at issue in this settlement and the fact that the
resolution of the Navajo Nation's claims is not going to get
any cheaper by delaying an outcome. This is not a Third World
country. We are not sending foreign aid. These are original
occupants of this land.
As representatives of all western states know, resolution
of tribal water rights can be very difficult and litigation of
those claims can be very expensive. New Mexico is proud to have
reached a settlement with the Navajo Nation that will resolve
the Nation's water rights in the San Juan Basin while
protecting the existing water uses within the basin.
As an agricultural water user from the San Juan Basin, I
recognize the potential risk to existing water uses within the
settlement, and I appreciate the protections negotiated to
preserve this agricultural lifestyle. The settlement also
protects the San Juan-Chama project that benefits some of New
Mexico's largest cities. Title 2 of this act provides a funding
mechanism that will tap into the existing surplus in the
Reclamation fund and is supported by the 17 states represented
by the Western States Water Council.
New Mexico has already funded over $25 million toward the
settlement related projects and our legislature has
appropriated $10 million toward an Indian water rights
settlement fund. While I cannot speak for the legislature of
New Mexico, they have already shown support for the solution to
a major problem. Both the state and Federal governments will
have to work together to make this important project work.
All western states appreciate the need to be able to
develop the water they are entitled to. From an interstate
water perspective, an important benefit of the water is that
the water necessary for the settlement will fit within the New
Mexico's upper Colorado River compact apportionment without
displacing any existing water uses. Stability on the Colorado
River is important to New Mexico, and we encourage the other
Colorado River basin states to continue their cooperative
efforts to support each other's right to fully develop our
compact apportionment.
Madame Chairwoman and Committee members, the State of New
Mexico asks your support for H.R. 1970. Thank you.
[The prepared statement of Mr. Dunlap follows:]
Statement of Jim Dunlap, Chairman of the
New Mexico Interstate Stream Commission,, on H.R. 1970
Madame Chairwoman and members of the committee, I am Jim Dunlap. I
am the chairman of the New Mexico Interstate Stream Commission, and I
am a resident of the San Juan Basin in New Mexico. I appreciate very
much the opportunity to appear before you today and provide comments on
behalf of the State of New Mexico in support of the Northwestern New
Mexico Rural Water Projects Act, H.R. 1970.
This legislation will authorize construction of an important rural
water system for northwest New Mexico, including the Navajo Nation, the
Jicarilla Apache Nation and the City of Gallup.
It will also resolve long-standing water issues between the Navajo
Nation and the State of New Mexico in the San Juan River Basin of New
Mexico by authorizing a comprehensive settlement agreement that will
protect existing water rights within the state. The legislation
clarifies provisions of existing law and provides guidance regarding
regulations that will be developed to implement the settlement
provisions.
The State of New Mexico and the Navajo Nation reached this
settlement after decades of disagreement and many years of intensive
settlement talks. It is no small matter that we appear before you
today, together, urging you to pass this legislation. We believe this
legislation has been carefully crafted to address water supply needs
within New Mexico while protecting the long-standing Law of the
Colorado River.
I would like to discuss these issues in further detail.
The Project
The legislation would authorize the Northwestern New Mexico Rural
Water Supply Project. This project is vital to solving the acute water
supply conditions facing much of northwestern New Mexico, including a
large portion of the Navajo Nation. The project is described in detail
in the final draft Environmental Impact Statement recently released by
the Department of Interior that builds off a federal planning process
that has been underway for over 30 years. This Colorado River Storage
Project Act project utilizes an existing reservoir and will provide a
safe, reliable drinking water supply to New Mexico residents that
currently haul water or rely on unsustainable groundwater.
Today more than half of rural Navajos in New Mexico must haul water
for many miles to receive a basic domestic water supply. The reality of
water hauling faced by those Navajo families is shocking considering
the modern conveniences that most of us take for granted. By providing
the backbone for a regional water supply system, the project will
enable the Navajos to receive a clean, reliable supply of water.
The project will enable the City of Gallup to acquire a renewable
surface water supply. Currently, Gallup faces quickly declining
groundwater supplies with the prospect of severe shortages within 20
years. The project will also deliver water to the Jicarilla Apache
Nation for use in the water scarce southern portion of the Apache
reservation.
By 2040 the project is expected to serve approximately 250,000
people, including the residents of Gallup. The project would be the
second biggest water utility in the state, smaller only than the
Albuquerque Bernalillo County water utility.
Because the project will serve a very large area and contain
hundreds of miles of pipeline, the cost of the project is high. But,
the project costs can be appropriated over several years, and the
Reclamation Water Settlements Fund, to be created by Title II of H.R.
1970, provides a reasonable means of funding project costs if
sufficient appropriations have not been made by 2018.
In recognition that the state will incur costs associated with its
Indian water rights settlement projects, including the Navajo
Settlement, the State of New Mexico has made an initial contribution of
$10 million to the New Mexico Indian Water Rights Settlements Fund
(NMSA 72-1-12). In addition, over the last 4 years, the state has
invested approximately $9.7 million in a Gallup regional distribution
system and, this year, the New Mexico legislature appropriated $15.3
million to be used for construction of the ``Cutter Lateral'' pipeline
on the eastern side of the project. New Mexico recognizes the
importance of funding this project and expects the federal
administration to contribute funding for this project commensurate with
the federal government's trust and statutory responsibilities. New
Mexico expects to be treated fairly and consistently vis-a-vis other
settlements around the country.
Benefits of the Navajo Settlement
In addition to authorizing a project that would provide a secure
source of drinking water for Navajo and Apache communities and for the
City of Gallup, the legislation would approve a comprehensive
settlement of the Navajo Nation's water rights claims in the San Juan
Basin in New Mexico. Navajo claims to the San Juan River have long-
threatened the security of water rights of all other water users within
the basin. After years of difficult negotiations, the State of New
Mexico and the Navajo Nation entered into a settlement agreement in
2005.
The State of New Mexico strongly believes that the settlement
represents a fair and equitable resolution, and we respectfully ask
this Committee to support it. The San Juan River, like most rivers in
the southwest, does not produce enough water to meet all claims for
current and future uses. Under the settlement, the Navajo Nation agrees
to substantially reduce its claims in exchange for the wet water
supplied by the proposed project.
Before signing the settlement agreement, the State of New Mexico
carefully considered the needs of non-Navajo water users in the San
Juan Basin, and over the course of several years, the state met many
times with water user groups, took formal public comments, analyzed
alternatives and worked tirelessly to negotiate the agreement in order
to resolve the concerns voiced. Some of the most difficult negotiations
centered on numerous changes to the settlement agreement that provide
additional protections for third parties. The State of New Mexico has
reviewed the settlement agreement and proposed legislation from a
perspective of protecting all water users within the state, including
San Juan-Chama Project water users, and the state believes the
settlement benefits and protects those water users.
I firmly believe that we have come as close as possible to a
resolution that provides maximum benefits and protections for all water
users, given limitations of water supply and potential uncertainties of
its allocation if the Navajo claims were litigated.
To underscore this point, I want to outline some of the most
important provisions built into the settlement to protect non-Navajo
water users.
Under the settlement, the Navajo Nation accepts compromises
regarding both the quantity of its water rights and administration of
its priority dates, with the result that Navajo claims fit within New
Mexico's apportionment of the Upper Colorado Stream System and will not
displace other existing uses and projects.
Under the settlement, the quantity of Navajo water rights would be
made up of essentially three components. First, the settlement
recognizes the existing uses of the Navajo Nation, including its old
irrigation projects Hogback and Fruitland diverting directly from the
San Juan River for authorized irrigation of approximately 12,000 acres.
Second, the settlement recognizes the Navajos' largest right, its right
to irrigate over 110,000 acres that comprise the Navajo Indian
Irrigation Project (NIIP), authorized by Congress in 1962 by Public Law
87-483. Finally, the only ``new'' water the Navajos will receive is
almost 21,000 acre-feet a year of water to supply domestic and
commercial uses for the Navajo portion of the Northwestern New Mexico
Rural Water Supply Project.
Regarding the large Navajo Indian Irrigation Project right, in
1962, Congress authorized an annual diversion of 508,000 acre-feet;
however, the Navajos through conservation are agreeing to limit
diversions to 353,000 acre-feet and could only exceed that amount by
obtaining a State Engineer permit assuring that no other water users
would be impaired by an increase. As a result, even with new diversions
required by the proposed rural water supply project, the settlement's
net effect is a decrease in annual diversion of over 130,000 acre-feet
from the amount already authorized by federal law and state permits. In
addition, depletion limits are included which provide additional
benefits to other water users.
With respect to priority dates, under the federal reserved water
rights doctrine, the Navajos could claim an 1868 priority, the date of
their reservation. Under the prior appropriation doctrine, the Navajo
Nation, as most senior water right holder, could call for all its water
before anyone else on the San Juan River. Even with reduced quantities
as provided under the settlement, an 1868 priority would threaten
frequent curtailment of other water users. Consequently, the Navajos
are agreeing that NIIP and the proposed rural water supply project will
be supplied under the Navajo Reservoir's 1955 priority, instead of a
reserved priority date of 1868. This concession means that 10 percent
of Navajo rights will have an 1868 priority and 90 percent will be
administered with a 1955 or later priority.
I have described two of the most important protections incorporated
into the settlement, regarding quantity and priority, but there are
several other protections conferred by the settlement I want to touch
on.
The settlement has valuable shortage sharing provisions that
protect other federal projects. As you know, the federal government has
invested a great deal of resources in the Animas-La Plata Project (ALP)
and the San Juan-Chama Project. These projects are vital to the State
of New Mexico, but they have relatively junior priority dates of 1956
and 1955, respectively. In addition to the general protections I have
already described, the Navajo Nation is agreeing to additional,
specific protections for these two important federal projects.
ALP's 1956 priority in New Mexico makes it vulnerable to priority
calls within the San Juan Basin. Most of the 13,520 acre-feet per year
of ALP water allocated for use in New Mexico will supply the future
needs of the three municipalities of Farmington, Bloomfield and Aztec.
In the event that curtailment of New Mexico's water uses is required by
the Upper Colorado River Basin Compact, the Navajos agree to provide
protection to New Mexico contractors up to their project contract
amount. Under this protection, the Navajos agree to forgo their uses in
order to make water available to ALP at the same percentage supply
available to the rural water supply project authorized by H.R. 1970.
Section 102 of H.R. 1970 would amend Public Law 87-483, which
authorized the San Juan-Chama Project, to clarify that the normal
annual diversion requirement for that project is 135,000 acre-feet for
purposes of allocating annual water supply shortages between Navajo
Reservoir contractors and the San Juan-Chama Project. That provision
minimizes the potential for shortages to the San Juan-Chama Project,
which on average diverts 105,000 acre-feet per year, or less, in dry
years when less water is available for project diversions. This means
that a large reduction in Navajo Reservoir's physical supply would have
to occur before the San Juan-Chama Project would begin sharing
administrative shortages.
In addition, in order to protect federal project contractors, the
state analyzed the risks associated with allowing additional water to
be contracted from Navajo Reservoir to supply the proposed regional
water project. The hydrologic determination recently signed by the
Secretary of Interior confirms that additional water is available for
the new contract uses without impairing existing uses. The additional
risk of shortage to contractors from either the San Juan Chama-Project
or Navajo Reservoir supply is minimal, and the State of New Mexico
believes that other settlement and legislative benefits provided
outweigh any additional risks of shortage.
Another category of protections I want to mention consists of
specific protections for non-Navajo water users who are not supplied by
federal projects. These users are direct flow irrigators,
municipalities and power plants. Many non-Indian and municipal state-
based rights were quantified in the 1948 Echo Ditch Decree, to which
the United States and the Navajo Nation were not parties. Under the
settlement, the Navajo Nation and the United States would agree not to
challenge the elements of Echo Ditch Decree rights except on the basis
of forfeiture, abandonment or illegal use occurring after entry of the
Decree. This means that the U.S. and the Navajo Nation would not go
behind this long-standing decree to challenge the water rights decreed
at that time or challenge the validity of the decree. Similarly, in
conjunction with the settlement, the Navajo Nation is agreeing to
recognize water rights of the City of Farmington quantified by the Echo
Ditch Decree.
An important protection for direct flow diverters is the Navajos'
agreement to call on an alternate water supply stored in Navajo
Reservoir before making a priority call against direct flow. Although,
as I mentioned above, the settlement provides that 90 percent of the
Navajos' rights would be supplied under Navajo Reservoir's 1955
priority, the Navajos' old direct flow irrigation projects Hogback and
Fruitland would retain an 1868 priority. In many years the demand of
those projects would cause junior diverters to be shut off absent the
additional protection secured by the settlement requiring the Navajos
to use their alternate water supply. Under the alternate water supply
provisions, the Navajo Nation agrees the Hogback and Fruitland projects
will refrain from priority calls against upstream junior appropriators
and instead will deliver up to 12,000 acre-feet in any year of NIIP
contract water in storage in Navajo Reservoir when the direct flow is
insufficient to meet water demands. If this amount is exhausted in any
year, priority calls may occur at that time in that year. Based on the
hydrologic record, this provision would mean that instead of priority
calls in one out of two years, Hogback and Fruitland would only be
entitled to make priority calls in one out of every twenty years, on
average.
Another benefit of stored water for direct flow diverters is
contained in paragraph 401(a)(4) of H.R. 1970. When there are at least
a million acre-feet in Navajo Reservoir, this provision authorizes the
State of New Mexico to administer water released from storage for use
by direct flow diverters at a minimum of 225 cubic-feet-per-second,
even when inflows to the reservoir are less than that amount. In other
words, when the direct flow would otherwise drop below 225 cubic-feet-
per-second, water released from the reservoir may be used to keep
direct flows at that minimum amount, thereby increasing and making more
reliable the supply available to direct flow diverters.
The settlement would also make the direct flow go farther by
providing funding for ditch improvements. Under the settlement, the
state will contribute $10 million for ditch improvements and water
conservation projects to benefit the direct flow ditches. Section
309(c) of H.R. 1970 authorizes over $23 million to rehabilitate the
Hogback and Fruitland projects and Section 309(d) authorizes $11
million of matching funds to rehabilitate non-Navajo ditches. These
funds will mean that approximately $45 million will be appropriated to
improve the efficiency and promote conservation of water of the direct
flow diversions, as part of the Navajo settlement.
The last category of protections I want to touch on includes
administrative provisions to help assure that the San Juan River Basin
is managed in an orderly fashion and within the supply available. Both
the legislation and settlement confirm the State of New Mexico's
authority to administer water. Under the settlement, the Navajo Nation
agrees that the State Engineer has authority to serve as water master
in the basin and to administer water rights in priority as necessary to
comply with interstate compact obligations and other applicable law,
thereby confirming authority in the state to comprehensively administer
water usage in the basin. In addition, the State Engineer will have
authority to make determinations of current beneficial uses for any
changes in points of diversion and for any changes in purposes or
places of use of Navajo water rights off of Navajo lands. The Navajo
Nation also agrees to comply with state law regarding marketing of
water rights.
The Navajo Nation further agrees not to pump groundwater so as to
deplete the flow of the San Juan River by more than 2,000 acre-feet per
year, unless the State Engineer approves use of Navajo surface water to
offset depletions in excess of that amount. Any Navajo groundwater uses
beyond those quantified in the settlement agreement also would be
subject to non-impairment of existing water rights.
Outside the Navajo Reservation on lands allotted by the United
States, there are numerous individual Navajos who could assert federal
reserved claims in the pending San Juan River Adjudication. The Navajo
Nation is agreeing to use its water rights decreed under the settlement
to supply or offset any future uses that may be awarded in the
adjudication to individual Navajos allottees in the San Juan Basin.
The proposed settlement is detailed and comprehensive. Although it
is a creature of negotiation and compromise, I strongly believe that is
represents the best result attainable for all New Mexicans who rely on
the San Juan River. Without a settlement, the Navajo Nation would
assert a right to much larger quantities, with the potential to
displace junior non-Navajo water users. Under the settlement, those
same water users are afforded numerous and substantial protections.
If the claims were litigated, the Navajos would seek large
quantities of water under the Winters Doctrine or Federal Reserved
Water Rights Doctrine. The Navajos would seek water for future use to
make the Navajo reservation a permanent homeland, including by claiming
enough water to irrigate all practicably irrigable acreage (PIA) on
their lands in New Mexico. The quantity of water could be very large.
Under the settlement by contrast, as I have mentioned the only
``new'' water the Navajos will receive is almost 21,000 acre-feet a
year of water to supply domestic and commercial uses for the Navajo
portion of the proposed rural water supply project. The other major
water components of the settlement consist of already existing or
authorized irrigation, at the Hogback and Fruitland Projects and the
Navajo Indian Irrigation Project.
As we move forward, the State of New Mexico looks forward to
working with other parties on proposed legislative language to assure
the protections intended by the settlement are realized.
The Colorado River Basin
New Mexico supports this legislation because it is good for New
Mexico, the Navajo Nation, and the Colorado River Basin states.
The States' Agreement Concerning Colorado River Management recently
executed by California, Arizona, Nevada, Utah, Wyoming, Colorado and
New Mexico provides extensive benefits to the lower basin states in
terms of protecting and increasing the water available for use in those
states. The primary benefit of the agreement to the upper basin states
is a reaffirmation of each state's right to develop its Colorado River
water entitlement. The Navajo Settlement resolves the Navajo Nation's
water rights claims within the San Juan Basin in quantities that fit
within New Mexico's apportionment under the Upper Colorado River
Compact. Resolution of tribal water rights claims is important to
states, tribes, and the federal government, and it is particularly
beneficial when the claims can be resolved within a state's compact
apportionment.
The Secretary of Interior's recent hydrologic determination was
developed by the Bureau of Reclamation in collaboration with engineers
and hydrologists from the Upper Division states and was concurred with
by the Upper Colorado River Commission (representing Colorado, Wyoming,
Utah and New Mexico) through a resolution dated June 9, 2006. The
Department of Interior consulted with all of the seven basin states,
including Arizona, California and Nevada, regarding the final
hydrologic determination. This hydrologic determination confirms that
water is available for the Navajo Settlement within New Mexico's
apportionment of water under the Upper Colorado River Basin Compact
without displacing any existing water uses within New Mexico.
H.R. 1970 authorizes the Secretary of Interior to sign the
Settlement Agreement and design and construct a project to bring a
necessary, safe and reliable water supply to many New Mexican families
who currently rely on hauled water or unsustainable, poor quality
groundwater to meet their domestic needs. The Upper Colorado River
Commission has already expressed support for the settlement project and
this legislation through resolutions dated June 19, 2003 and June 9,
2006.
The settlement and the water supply project contemplates a pipeline
extension to the Navajo Nation's capital in Window Rock, Arizona, on
the border with New Mexico. H.R. 1970 preserves Arizona's right to
negotiate its own settlement with the Navajo Nation and water cannot be
delivered to Arizona until an agreement is reached within Arizona
regarding the water supply allocation and additional approvals are
received as may be required under the law of the Colorado River. New
Mexico has been able to accommodate some of Arizona's concerns, but
many of Arizona's concerns go beyond the scope of our settlement,
raising complicated issues that are objectionable to other basin
states. New Mexico is willing to continue conferring with any of the
Colorado River Basin states as necessary to explain the settlement
agreement or discuss concerns about the settlement, but New Mexico
believes that each state should be entitled to develop its compact
entitlement in the manner that best meets the needs within that state.
In New Mexico, have worked hard to resolve complicated Indian water
rights claims through a settlement that will address basic human needs.
We hope the other states will support us in this effort.
Madame Chairwoman and Committee members, the State of New Mexico
asks you to support H.R. 1970. The costs of the Northwestern New Mexico
Rural Water Supply Project and of the Navajo settlement are high. But
the costs of delay in not addressing the vital and human needs of the
communities of Northwestern New Mexico are much higher. This
legislation would settle protracted and divisive litigation, and in its
place would provide a clear, safe drinking water supply for northwest
New Mexico.
______
Response to questions submitted for the record by
Jim Dunlap on H.R. 1970
(DUNLAP-NM) This legislation will enable a settlement between the New
Mexico Navajo Nation and the Federal Government. What do you
think of the Arizona's concerns regarding the implications of
certain provisions to the existing ``Law of the Colorado
River?''
ANSWER: Arizona's objection relating to the ``Law of the River''
relates to New Mexico's use of a portion of its Upper Basin
apportionment within the Lower Basin in New Mexico. Arizona's concern
is unfounded because Section 303(g) of H.R. 1970 directly authorizes
the use of a portion of the State of New Mexico's Upper Basin
apportionment within the Lower Basin in New Mexico. The authorization
in H.R. 1970 is consistent with the authorization in Section 303(d) of
the 1968 Colorado River Basin Project Act of a project's use of a
portion of the State of Arizona's Upper Basin apportionment within the
Lower Basin in Arizona. In addition, the Upper Colorado River
Commission, which administers the Upper Colorado River Basin Compact
and has authority to determine uses of water from the Upper Basin, by
unanimous resolution, approved New Mexico's proposed use of some of its
Upper Basin water within the Lower Basin in New Mexico.
H.R. 1970 preserves the State of Arizona's right to negotiate its
own settlement with the Navajo Nation, and most of the issues raised by
Arizona go beyond the scope of the State of New Mexico's settlement
with the Navajo Nation. Some of the provisions that Arizona has
requested have raised objections from other Colorado River Basin
states.
(DUNLAP-NM) Mr. Dunlap, the Bureau of Reclamation may categorize this
project as a ``rural water project'' under P.L. 109-451. Would
the State of New Mexico support that? Has the State ever
considered this project to be a ``rural water project?''
ANSWER: The Bureau of Reclamation's written comments regarding H.R.
1970 state it is confused about whether the Northwestern New Mexico
Rural Water Supply Project is intended to be a rural water project. The
project proposed by H.R. 1970 should not be categorized as a ``rural
water project'' under the Reclamation Rural Water Supply Act of 2006,
P.L. 109-451. As clearly stated in H.R. 1970, the project will be
authorized as a Colorado River Storage Project Act participating
project. But, H.R. 1970 is specifically tailored to the requirements of
the Navajo settlement.
As Commissioner Johnson described in his testimony to the bill,
Reclamation's rural water program under the Rural Water Supply Act is
still under development, and eligibility and prioritization criteria
have still not been promulgated. New Mexico understands that a field
hearing is scheduled later this month before the Senate Energy and
Natural Resources Committee regarding the Bureau of Reclamation's
implementation of P.L. 109-451.
(DUNLAP) Mr. Dunlap, your testimony frequently refers to the
hydrologic report. Who verified the hydrologic report? Was this
report specific to this project, or for the entire State of New
Mexico?
ANSWER: The Hydrologic Determination to which I refer is required
by Section 11 of P.L. 87-483, and was finalized by the Bureau of
Reclamation in April 2007 after consultation with all seven Colorado
River Basin states, and signed by the Secretary of the Interior on May
23, 2007. A copy of the determination is attached to these responses
for the record. The Upper Colorado River Commission had previously
concurred in the findings of the determination in June of 2005. The
2007 Hydrologic Determination confirmed the finding of the 1988
Hydrologic Determination that the annual water yield available to the
Upper Basin under the Colorado River Compact is at least 6.0 million
acre-feet, including evaporation from Colorado River Storage Project
reservoirs, based on the critical period of record. The 2007 Hydrologic
Determination also found that sufficient water is reasonably likely to
be available within the State of New Mexico's share of the Upper Basin
yield that is apportioned to it by Article III(a) of the Upper Colorado
River Basin Compact, and within the physical water supply available
from Navajo Reservoir to service water contracts from the Navajo
Reservoir supply for the Navajo Nation's uses under both the Navajo
Indian Irrigation Project and the proposed Northwestern New Mexico
Rural Water Supply Project.
(To WHOEVER) The Jicarilla Tribe is currently receiving funds for the
Jicarilla Apache Reservation Rural Water System rural water
project. How do the funds from this legislation relate to the
current project funds?
ANSWER: The funds from H.R. 1970 do not relate to the Jicarilla
Apache Reservation Rural Water System. The Jicarilla Apache Reservation
Rural Water System project will provide a water distribution system to
supply water to the northern portion of the Jicarilla reservation in
the proximity of Dulce, New Mexico. The Northwestern New Mexico Rural
Water Supply Project will deliver water to the Jicarilla Apache Nation
near Counselor, New Mexico, for use in the southern portion of the
reservation.
(To WHOEVER) Who is responsible for the operation and maintenance
costs? Who will own the infrastructure once it is completed?
ANSWER: Section 304 of H.R. 1970 provides that the three project
beneficiaries, the Navajo Nation, the Jicarilla Apache Nation and the
City of Gallup, will pay their respective allocable costs for
operation, maintenance and replacement of the project. A limited waiver
for up to ten years would be authorized for the Navajo Nation pursuant
to subsection 304(f), if the Secretary of the Interior determines that
the cost of OM&R allocable to the Navajo Nation exceeds its ability to
pay. Subsection 302(f) authorizes the Secretary, upon completion of
construction and execution of an operations agreement, to convey those
portions of the project located within the Gallup city limits to the
city and the rest of the project facilities to the Navajo Nation. No
portion of the project will be located on Jicarilla lands. Paragraph
304(b)(5) requires financial assurances satisfactory to the Secretary
if title is transferred to the city prior to repayment.
______
Mrs. Napolitano. Thank you, sir. We will move on to
Patricia Lundstrom, President of the Northwestern New Mexico
Council of Governments in Gallup, New Mexico.
STATEMENT OF PATRICIA LUNDSTROM, PRESIDENT, NORTHWESTERN NEW
MEXICO COUNCIL OF GOVERNMENTS, GALLUP, NEW MEXICO
Ms. Lundstrom. Good morning, Madame Chair, and Congressman
Udall. I am Patty Lundstrom. I am the Executive Director of the
Northwest New Mexico Council of Governments since 1985, and a
fourth term member of the New Mexico House of Representatives.
With me today are Gallup mayor pro tem Bill Nachero, Gallup
city councilor Elen Londabozo and the COG deputy director Jeff
Kiley. We would like to thank you for inviting us to
participate in this historic hearing today.
I come before you to speak in favor of House Bill 1970.
This legislation is an essential instrument for authorizing and
financing the proposed rural water project we have been working
on for decades. We have known it as the Navajo Gallup Water
Supply Project, and in the context of this bill it is titled
the Northwestern New Mexico Rural Water Supply Project. Since
1991, I have served as chair of the steering committee for this
project.
The need for the project has been known to Congress and the
Interior Department for 50 years, and scientific studies have
made it clear that the only hope for a sustainable water supply
for eastern Navajo land and Gallup lands is a surface water
supply provided by the San Juan River. After years of work
through a mine field of legal, technical, political,
environmental and financial issues, we are finally at the point
of bringing to you our plan for getting this water supply
conveyed to this parched region.
Through the involvement and support of the Congress, the
Bureaus of Reclamation and Indian Affairs and the Fish and
Wildlife Service, the Federal government has been an active and
constructive part of this consensus plan. The opportunity for
the government to shape, modify or otherwise advance this plan
has been continuous and complete. The steering committee has
been a unified working group with participation by state and
Federal agencies, the Navajo and Jicarilla Nations, the city of
Gallup and technical partners in the process.
In my 22 years as COG director, this has been the most
ambitious and complex project I have seen in the region. It has
invoked the highest levels of cooperation, professionalism and
commitment by the individuals and agencies involved. The needs
for the project are clear. Many Navajo reservation households
have never had a public water system. The Navajo economy
already struggling well below poverty stands no chance of
development without a sustainable public water supply for its
communities.
The Jicarilla Apache Nation has a water rights settlement
but needs economic development in order to tap the fullness of
these rights. The city of Gallup's water table is dropping 20
feet a year, and the city will face peak use shortages within
five years and chronic shortages within 15 years.
Since I work closely with the city of Gallup in both my
public service roles, I will briefly outline Gallup's role in
the project. Gallup is a transportation hub for the southwest
and a major commercial center for the Navajo reservation.
Within a few decades Navajos will likely make up one-half of
Gallup's population. The Gallup regional water system at the
back end of the Navajo Gallup pipeline is now under development
in full collaboration with the Navajo Nation and the State of
New Mexico.
Under this system city infrastructure will be used to help
convey water to neighboring Navajo communities both now and in
the future when the Rural Water Supply Project is complete. The
state has already committed over $9 million to this regional
system. Gallup also supported the state's commitment of over
$15 million in funding for regional water infrastructure on the
eastern side of the project area which will ultimately tie into
the Cutter Reservoir.
These regional system partnerships have generated broad
commitments to the motto real water to real people in real
time. Since shortages are likely in Gallup even before the
project is completed, Gallup has proactively worked to secure
its water future in both the short and long term and has
adopted an aggressive water rate structure to spur conservation
and to look at financing local water infrastructure and a new
water supply. It has started developing a wastewater reuse
system using reverse osmosis.
It is working to develop new groundwater sources previously
used by extractive industry. It has worked on cooperative
agreements with the Navajo and Jicarilla to ensure a water
source for the city's participation in the Rural Water Supply
Project. The city of Gallup stands in support of this
legislation. The city concurs in particular with the concept of
a 75 percent Federal cost share for the city's portion of the
project cost as reflected in House Bill 1970.
Affordability for the city is affected by a number of
unique factors, most predominantly its commercial hub status.
We are a broad rural area and the existence of pockets of high
poverty both within and outside the city. The city will need a
water supply for its share of the project, and the city is
dependent on the projects two Indian tribes or alternatively
the Secretary of Interior for that supply. The city's purchase
of its own water rights in the San Juan River would be high in
cost, high in controversy and low in feasibility at this point.
The city of Gallup is nevertheless committed to charting a
strong financial course to meet the 25 percent threshold of its
share of the project. We will be working closely with the
offices of the Governor, the state engineer, as well as with
the state legislature to design and implement a viable state
and local financial strategy.
Overall this legislation represents a perfect storm of
opportunity for the Federal government to join forces with its
state and local partners to meet the critical water needs in
this region of New Mexico while settling the Navajo Nation
water right claims.
Mrs. Napolitano. You need to wrap it up please, Madame.
Ms. Lundstrom. OK. The project is essential, and on behalf
of the steering committee, the Council of Governments and the
New Mexico state legislature, we urge your support for House
Bill 1970, and again thank you very much for inviting us.
[The prepared statement of Ms. Lundstrom follows:]
Statement of Patricia A. Lundstrom, Member, New Mexico House of
Representatives, and Executive Director, Northwest New Mexico Council
of Governments, Serving as Steering Committee Chair, Navajo-Gallup
Water Supply Project, on H.R. 1970
Mr. Chairman and Members of the Subcommittee, I am Patricia
Lundstrom, member of the New Mexico House of Representatives in my
fourth term serving House District 9, and Executive Director of the
Northwest New Mexico Council of Governments since 1985.
State House District 9 encompasses about 3,000 square miles in
northwestern New Mexico, including the western portion of the City of
Gallup and 9 rural Navajo communities lying within McKinley and San
Juan Counties. Navajos comprise about two-thirds of the population of
this District.
The Northwest New Mexico COG is the regional planning agency
designated by the State of New Mexico and the Federal government to
serve the State's three counties of the Four Corners region: Cibola,
McKinley and San Juan Counties. This is about 15,000 square miles of
high desert territory, including large reservation areas for four
Indian tribes and a population of about 225,000 people residing in 6
municipalities and 77 rural communities. About one-half of the land
base and one-half of the population are Native American.
I want to thank you for inviting me to participate in this historic
hearing today.
I come before you to speak in favor of the proposed Settlement of
Navajo Nation water rights in the San Juan River and the other
associated titles included in H.R. 1970. My primary interest in this
bill and in the Settlement is that this legislation is an essential
instrument for authorizing and financing the proposed rural water
infrastructure project we have been working on for decades. We have
known it as the Navajo-Gallup Water Supply Project, and in the context
of this bill it is titled the Northwestern New Mexico Rural Water
Supply Project.
Since 1991, I have served as Chair of the Intergovernmental
Steering Committee for the Navajo-Gallup Water Supply Project. This
project is the flagship of the proposed water rights Settlement, as it
plans to construct primary water pipelines to deliver water from the
San Juan River to rural Navajo communities in northwestern New Mexico,
to the southwestern portion of the Jicarilla Apache Nation, and to the
City of Gallup.
During these past 16 years, I have seen the Navajo-Gallup project
revived from its prior stalemate condition and, with the consistent
leadership and support of Senators Bingaman and Domenici, I have seen
it sustained as a planning initiative to the present day through a
minefield of legal, technical, bureaucratic, political, financial and
environmental issues.
The Steering Committee has been the primary nexus and forum in
which these issues have been addressed and resolved by a persevering
coalition of partners, including:
The Navajo Nation, with representatives from the Nation's
Natural Resources Division, Division of Justice, President's Office,
and Water Rights Commission;
The Jicarilla Apache Nation, with staff and policy
representation from the Nation's Water Rights Commission and from the
Office of the President;
The City of Gallup, which serves as a project beneficiary
(for 20% of the project's eventual capacity) and as a hub distribution
system for the project's water supply at its southern end, to water
users not only within the City limits but also in a number of
neighboring Navajo communities;
The State of New Mexico, primarily through its State
Engineer's Office and the Interstate Stream Commission; the State is a
party to the interstate compacts affecting the Colorado River and its
tributaries, as well as to a negotiated settlement of the Navajo
Nation's water rights in the San Juan River, and (through its
Legislature) the State is a major contributor to infrastructure
improvements in support of the overall Navajo-Gallup Water Supply
Project;
The Bureau of Reclamation, which serves as federal lead
for the project out of its Western Colorado Area Office; and
The Bureau of Indian Affairs, which is federal
administrator of the Navajo Indian Irrigation Project, and which has a
substantial role with regard to real properties and rights-of-way
affected by the project;
The Navajo Tribal Utility Authority, the Navajo Nation's
utility enterprise that operates all of the public water systems on the
Navajo Reservation;
The Navajo Area Indian Health Service, a division of the
Public Health Service in the U.S. Department of Health & Human
Services, which is responsible for planning and constructing water
facilities in service to Navajo communities; and
The Northwest New Mexico Council of Governments, a
federal- and state-designated regional planning agency which chairs the
Steering Committee.
In addition to these Steering Committee groups, we have enjoyed the
professionalism and cooperation of two agencies in particular that have
also contributed greatly to the success of our planning efforts thus
far:
The Upper Colorado River Commission has worked
thoughtfully and cooperatively with the State of New Mexico and the
Navajo Nation in accommodating the unique needs and configurations of
this project. In particular, in 2003 the Commission resolved to support
and consent to diverting water from the Upper to the Lower Basin of the
Colorado River for the purposes of the Navajo-Gallup project, and it
certified its support for ``such Congressional action as may be
necessary to authorize the Navajo-Gallup Water Supply Project.''
The United States Fish and Wildlife Service worked
cooperatively with all parties to complete appropriate planning studies
in the San Juan River that would identify the depletions from the river
that could be made without negatively impacting the recovery of
endangered species of fish in the river.
This project is the most ambitious and complex of the many local
and regional initiatives I have been a part of for over two decades. It
has also evoked the highest levels of cooperation, professionalism and
commitment by a group of agencies and individuals that I have ever
seen. My Council of Governments staff and I have been working on this
project continuously since the early 1990s, and there have been many
other individuals from all the participating agencies who have worked
with us on it for years at a time. For all of us, this is not just
``any project''; it's personal. Getting it done makes so much sense, at
so many levels, that we are all committed to it for the long-haul.
Since the late 1950s, State and Federal officials have concurred
with the Southwest region's top hydrologists that the only hope for
long-term sustainable water supply for the eastern Navajo Reservation
and for the City of Gallup lies in the surface water supply provided by
the San Juan River. The San Juan is a tributary to the Colorado River,
originating in the mountains of southwestern Colorado, flowing through
a portion of northwestern New Mexico, and proceeding to join the
Colorado River at Lake Powell in southern Utah and northern Arizona.
Through allocations confirmed in the hydrologic determination recently
approved by Interior Secretary Kempthorne, the San Juan River provides
about 40% of New Mexico's surface water supply. The Navajo-Gallup
project would divert nearly 38,000 acre-feet of water from the river,
or about 5 1/2 percent of New Mexico's river allocation.
The needs for the Navajo-Gallup Water Supply Project are clear and
evident:
For the Navajo Nation, there is a significant population
of Navajo people in the northwestern New Mexico service area who do not
have, and have never had, a public water system. To this day, nearly
40% of Navajo families in the service area still haul water to meet
basic household and livelihood needs. It is also clear that the Navajo
economy, already struggling well below the poverty line, stands no
chance of development without the provision of water as the most basic
of all human needs.
For the Jicarilla Apache Nation, there is already in
place a settlement agreement under which this neighboring tribal
community has secured water rights, but for which significant economic
and infrastructure development is needed in order to tap the fullness
of these rights.
For the City of Gallup, the water table is dropping 200
feet every ten years, and the City will be facing peak-use shortages
within five years and chronic shortages within fifteen years.
To focus further on the needs of the City of Gallup: Gallup serves
as a multimodal transportation portal for the Southwest and a major
commercial center for the Navajo Reservation. As such, it is as much a
``home'' and integral part of Navajo life as most other places in the
region. Within a few decades, we expect that Navajos will make up over
50 percent of Gallup's population. Despite a checkered history of
relationships between Gallup and the Navajo people, with some residue
of tension and mistrust even today, the partnership that has been
forged between Gallup and the Navajo Nation in the context of this
project has been remarkable. I foresee only further progress in this
relationship as this project moves forward.
It is important to note that, in my 16 years with the Steering
Committee, at no point has the City of Gallup attempted to insert its
needs and priorities in front of those of the Navajo Nation. Rather, it
has been a supporting partner, ensuring that its participation is
mutually beneficial to the City and to its Navajo neighbors.
As an example of this partnership, there has been a joint effort to
provide municipal water supply to Navajo households bordering the City
of Gallup on its east side. Past bureaucratic barriers to this service
have been erased, and by this summer's end, those Navajo families will
have running water for the first time.
Another example is the multilateral partnership between the City,
the State of the New Mexico, the Navajo Nation, the Indian Health
Service and the Navajo Tribal Utility Authority to finance and build
components of the Gallup regional water system, with the specific
objective of moving water through the City's system to the neighboring
Navajo communities adjacent to the City. The State has committed over
$9 million to this initiative, which is being developed in accordance
with the plans of the Northwestern New Mexico Rural Water Supply
Project.
The Navajo-Gallup partnership was further extended when the City
concurred with the request by the Navajo Nation, the Governor's office
and other agencies for State funding in support of urgently needed
water infrastructure serving five rural communities in the northeastern
sector of the Navajo-Gallup project service area. Over $15 million has
now been committed by the State to what is referred to as the ``Cutter
Lateral'' project, since this infrastructure will ultimately tie into
and be served by the pipeline to be built under the Northwestern New
Mexico Rural Water Supply Project.
These regional system partnerships have generated broad commitment
to the motto: ``Real water to real people in real time.''
Realizing the shortages that are likely prior to the advent of
surface water into the City's water supply, the City of Gallup has also
risen to the challenge of the region's impending water crisis by
exploring and implementing various initiatives to secure its water
future--both leading up to and in conjunction with the completion of
the Northwestern New Mexico Rural Water Supply Project.
In 2003, the City sponsored a Town Hall on Water, co-
facilitated by the public policy group New Mexico First, at which
participants adopted a consensus plan to establish Gallup as a model
town in the American West in terms of its commitment to secure its
water future and cooperate with its neighbors in the ``water commons''
shared by all residents in the region.
Emerging from the Town Hall was the formation the Gallup
Water Board, which assisted the City Council in the radical revision of
the City's water rate structure in support of conservation and the
generation of local financing for water infrastructure and future water
supply.
Another initiative was a partnership with the Bureau of
Reclamation to study the feasibility of implementing a comprehensive
wastewater recycling program utilizing reverse osmosis technology.
Yet further, Gallup has pursued a permit to develop water
supply in water fields east of the City formerly owned and developed by
extractive industries.
Finally, a Memorandum of Understanding is in its final
draft stages between the City, the Navajo Nation and the Jicarilla
Apache Nation, by which the parties will commit to ensure that the City
is afforded legal access to a share of the water to be supplied by the
Navajo-Gallup project.
Within the overall scenario of the Navajo-Gallup project, the City
of Gallup remains in full support of the project and of the water
rights settlement which is its primary facilitating instrument. At the
same time, the City is proactively developing a specific long-range
financial plan to be able to afford its share of the cost of the
project.
The Economics analysis contained in the project's Planning Report
and Draft Environment Impact Statement suggests that the City's ability
to pay is fairly close to the threshold formula applied by the federal
government in terms of median household income. The somewhat misleading
conclusion that might be derived is that the City can readily afford to
self-fund its share of the project.
A number of factors mitigate against such a foregone conclusion:
Gallup's status as a hub commercial center for a broad
geographic area results in a unique pattern of impact on the City's
infrastructure. Although the current municipal population is about
22,000, the number of people moving around and doing business within
the City may soar to between 70,000 and 100,000 people--especially on
weekends and on ceremonial occasions. It is essential to understand
that Gallup serves a broader service area than its municipal boundaries
would indicate. Over 80 percent of the students in Gallup schools are
Navajo. The Gallup Indian Medical Center serves the regional Native
American population. Due to the lack of water service on the
Reservation, area residents regularly use City laundry, car wash and
other facilities that increase the demand for water. Higher rates
resulting from the City's cost for participating in the new water
supply project will be passed on to the low-income residents in the
broader regional community, thus affecting the overall
``affordability'' of the project.
Although the influx of visitors generates a
disproportionately high level of gross receipts tax revenues in the
City, the City and surrounding County are severely limited in the
development of property tax revenues, and the City is virtually land-
locked by public, non-taxable lands on all sides, for which
compensation by such funds as Payment in Lieu of Taxes (PILT) is only a
fraction of the revenue shortfalls actually occurring.
Although Gallup's median household income is shown in the
Economics report as only a shade or two below the ``affordability
level'' of the project, yet this income figure is deceptive as well,
since there is a large gap between the minority of well-to-do
households and the majority of low and moderate-income households in
the City. Not surprisingly, two-thirds of the City's residential water
revenues come from the population group utilizing the lowest quantities
of water, that is, fewer than 6,000 gallons per month. These lower
water users are predominantly the City's lowest-income households. The
City's inverted water rate structure provides some cost protections for
these lower users, but these may be insufficient to keep rates within
the affordable range for this population.
The Economics analysis in the Final Report does not take
into account the need for replacing aging infrastructure. Even with
Gallup's new progressive water rate structure and at maximum bonding
capacity, the City's funds are insufficient to meet even current
operations, maintenance and replacement costs, much less to develop new
infrastructure or participate in a new water supply initiative. Gallup
presently has approximately 71 miles of water distribution piping
installed prior to 1966, which will need to be replaced over the next
40 years at an estimated cost of $42.4 million. In addition, a large
portion of the remaining 157 miles of pipe currently in service will be
40 to 60 years old at the time Gallup's cost share comes due.
The City's stake with respect to the Settlement of the
Navajo Nation's water rights in the San Juan River is clearly secondary
to that of the Nation, the State of New Mexico and the Federal
government. With respect to accessing a legal water supply, the City
first course of action is to pursue a water source in consultation with
the two Indian tribes involved in the project. The City's pursuit of
the independent purchase of water rights in the San Juan River would be
high in cost, high in controversy and low in feasibility at this point.
It is the City's position, therefore, that it will need
significant Federal funding support for its share of the project costs.
The City is committed, nevertheless, to charting a strong financial
course to meet the 25 percent threshold of its share of the project
costs. One key piece of the strategy will undoubtedly be investment by
the State of New Mexico in a portion of Gallup's share of the project
costs. City, County, Tribal and Council of Governments representatives
met recently with staff from the offices of the Governor and the State
Engineer, and I was very encouraged by the spirit of collaboration in
this regard. I will be working with the Governor's and State Engineer's
Offices and with the State Legislature on a mechanism to specifically
include financial commitments to Gallup over time.
With regard to the City's won commitment to the project cost share,
several options are currently under consideration with bond counsel,
with a preliminary strategy report to be ready for review by mid-
August. However, until such factors as the cost of water, final
operations, mai8ntenance and replacement (OM&R) and capital costs, and
construction scheduling are determined, it will be difficult for Gallup
to determine what its ultimate financial strategy will be. In any
event, the approach being pursued is that, in partnership with the
State of New Mexico and McKinley County, the city will design and
implement a strategy to meet 25% of its project cost share.
All in all, the Northwestern New Mexico Rural Water Supply Project
represents a ``perfect storm'' of opportunity for the Federal
government to meet the critical water needs of the people in this
region of New Mexico, while settling the water rights claims of the
Navajo Nation as an essential component of the overall initiative. The
project's promise of ``real water to real people in real time'' forms a
primary basis for the economic viability of the northwestern quadrant
of New Mexico.
The Steering Committee for this longstanding and critical project
effort, along with the institutions I represent--the Northwest New
Mexico Council of Governments and the New Mexico State Legislature--
urge your support for H.R. 1970, and by implication, for authorization
of the Northwestern New Mexico Rural Water Supply Project. I
acknowledge that the projected costs for this project are high, but we
dare not delay any longer in meeting the human and economic needs
represented in this initiative.
For our Steering Committee, this worthy cause has been on our watch
for a couple of decades, and we hope--now that it's on your watch as
well--that you will not let this opportunity fail.
Thank you for your most favorable and timely consideration of H.R.
1970.
______
Mrs. Napolitano. Thank you. Mr. Gregg Houtz, Deputy
Council, Arizona Department of Water Resources in Phoenix,
Arizona.
STATEMENT OF GREGG HOUTZ, DEPUTY COUNCIL, ARIZONA DEPARTMENT OF
WATER RESOURCES, PHOENIX, ARIZONA
Mr. Houtz. Madame Chairwoman, members of the Subcommittee,
thank you for the opportunity to present the views of the State
of Arizona on H.R. 1970. H.R. 1970 is another step toward
resolving the longstanding claims of Indian nations in this
country. As the Chairwoman knows well, Arizona has tried to be
a leader in resolving these through settlements. The concept of
ending up with wet water versus a paper water right that you
get in litigation is not acceptable either to Indian tribes nor
to other water users. We want to see real projects.
In this vein, we view this as a very important piece of
legislation. The Navajo Nation is in three states and is the
largest Indian tribe in the country. As a matter of fact, in
Arizona it is the largest of all of our 21 tribes and is the
largest in population and in land area. So we see this bill as
both an opportunity as a great step in a national effort.
We applaud the efforts of New Mexico and the Navajo Nation
to come to settlement. We applaud the partnerships that they
are forming very much like we have done in the past. However,
in its present form H.R. 1970 has problems. We believe that it
conflicts with certain provisions of the law of the Colorado
River and the 1922 compact. We have outlined these in our
submitted testimony, and we have offered legislative solutions,
and we will work with committee staff here and in the other
body to try and resolve these issues of the law of the river.
These are very important to Arizona. We do not take it lightly.
The compact, the Arizona v. California Supreme Court
decree, the 1968 Act and other things in the law of the river
protect Arizona water users. We do not take lightly ignoring
those provisions. We have provided language that we think
solves our issues in that regard.
An opportunity exists here. The Navajo Nation sprawls three
states. We have been in ongoing negotiations with the Navajo
Nation for the claims in the little Colorado River and in the
main stem of the lower Colorado River for over a decade. The
main impediment to it has been money and a Federal commitment
to provide money so that we can provide wet water to the Navajo
Nation.
We see this as an opportunity in that H.R. 1970 in title 2
provides a unique funding mechanism that should be expanded and
used to provide funding for other settlements across the west
but more importantly maybe specifically for the Arizona
portion. We are diligently working with representatives of the
Navajo Nation to try and come to resolution of the issues and
hope that we are part of this bill when it is finally passed.
In the meantime though, should Congress choose not to wait,
it is important that the issues raised in the Navajo Nation
lawsuit against the Secretary on the operations of the Colorado
River not be ignored. We find it hard to believe that Congress
would approve this settlement yet leaving the states and the
water users in the three lower basin states vulnerable to a
lawsuit that would continue to go.
We have just concluded over the last two years the historic
agreement among the seven basin states on conjunctive use of
the two main reservoirs and shortage sharing in the lower
basin. If that lawsuit is still in existence when those
programs go into existence next year, they will be included in
the lawsuit. We do not see how it could not. So we implore
Congress to consider requiring that the lawsuit be dropped
before enactment of this legislation.
In summary, we will continue to work with our friends in
New Mexico to try and resolve these issues, and look forward to
working with committee staff in this body and in the other body
to come to a conclusion on dealing with the law of the river
issue.
[The response to questions submitted for the record by Mr.
Houtz follows:]
Response to questions submitted for the record by
Gregg Houtz on H.R. 1970
(HOUTZ) Mr. Houtz, Arizona is part of both the Lower and Upper
Colorado River Basin. Has water from the Upper Basin ever been
authorized to be transferred to the Lower Basin?
ANSWER: The 1922 Colorado River Compact specifically states that
the allocations made in Article III (a) and (b) to the Upper and Lower
Basins were for exclusive use in each of those Basins. This is true for
Arizona as well as the other states. Only once has Congress authorized
an exception to Article III of the Compact to specifically grant a
modification of this requirement (see 1968 Colorado River Project Act,
43 U.S.C. 1523(d)). This provision would have accounted the water used
for a power plant as part of the Central Arizona Project as Upper Basin
water regardless of whether the location of the plant was in the Lower
or the Upper Basin. This power plant is located near Page, Arizona, in
the Upper Basin, and uses Upper Basin water. Because of this, the
congressional exception was never exercised.
It is true that the Upper Basin states transport water out of the
Colorado River basin to users within their states that are located
outside the Colorado River Basin, but there is no case where Colorado
River water is transported between the Upper and Lower Basins. We
believe the Compact prohibits transfers from the Upper Basin to the
Lower Basin and that the water allocations were intended for the
exclusive use within each basin. The Compact definition for the term
``Upper Basin'' includes ``and also all parts of said States located
without the drainage area of the Colorado River System which are now or
shall hereafter be beneficially served by waters diverted from the
System above Lee Ferry.'' The Compact negotiators recognized transfers
out of basin such as the San Juan-Chama Project and others, which shows
the negotiators' intent in using the ``exclusive use'' provision.
Arizona fully supports the Upper Basin states' right to develop
their allocations made under the Compact, but only insofar as they are
consistent with the Law of River. Finding ways around the Compact that
allow use of Upper Basin water in the Lower Basin, without first
obtaining specific congressional recognition and authorization creates
precedent for similar Compact violations in the future, thereby
increasing the chance that Arizona will suffer the effects of a Lower
Basin shortage. Under the 1968 Act the Central Arizona Project (CAP)
and other post-1968 users are first to take shortages. CAP is a primary
water source for the cities in the Phoenix and Tucson metropolitan
areas. Congress should carefully weigh the equities before allowing
such a change in the Compact. Arizona has offered language which would
address our concerns, and allow the Northwestern New Mexico Project to
go forward.
(To WHOEVER) The Jicarilla Tribe is currently receiving funds for the
Jicarilla Apache Reservation Rural Water System rural water
project. How do the funds from this legislation relate to the
current project funds?
ANSWER: Not applicable to Arizona.
(To WHOEVER) Who is responsible for the operation and maintenance
costs? Who will own the infrastructure once it is completed?
ANSWER: Not applicable to Arizona.
______
Mrs. Napolitano. Thank you for your testimony. Mr. Gerald
Zimmerman, Executive Director of the Colorado River Board of
California, Glendale, California.
STATEMENT OF GERALD R. ZIMMERMAN, EXECUTIVE DIRECTOR, COLORADO
RIVER BOARD OF CALIFORNIA, GLENDALE, CALIFORNIA
Mr. Zimmerman. Thank you, Madame Chairwoman, and members of
the Subcommittee. I want to thank you for giving me the
opportunity to provide testimony before this hearing on H.R.
1970. I am going to confine my remarks to sections of the
legislation that are of concern to the Board and its member
agencies. First, I want the Subcommittee to know that from our
initial review of H.R. 1970, the Board does not in any way
oppose the Navajo Nation Gallup project, and it fully
recognizes the value and importance of this project to the
State of New Mexico and the Navajo Nation.
However, the Board does want to ensure that legislation of
this nature is consistent with the law of the river and is
reflective of the broader concerns of the State of California.
In this regard, the Board does have a number of comments on the
proposed legislation. With respect to section 101, it is the
position of the Colorado River Board of California that this
legislation should be modified to provide that only water
created through extraordinary conservation may be stored in the
top water bank, and that this is the first water to be spilled.
Regarding section 201[c][3], it provides that the
completion of the Navajo Gallup project will be given priority
for up to $500 million if the Federal share of the cost has not
been otherwise provided by January 1, 2018. Since the
Reclamation fund is made viable through the repayment of
Reclamation projects from around the west, many of which are
within California, the Board questions the fairness of
providing to the Gallup Navajo project a priority position to
receive up to half of all of the funds designated to be
deposited in this new settlement's fund.
Section 303 of H.R. 1970 essentially gets to the heart of
the concerns of the Board regarding the law of the Colorado
River and the need to be consistent with the 1922 Colorado
River compact. One concern is the clear provision of authority
to use water in the lower basin even though that water is
diverted in the territory of the upper basin. That is above Lee
Ferry.
The Board believes that H.R. 1970 needs to specifically
address first the diversion and use authority in the context of
the 1922 Colorado River compact, and second the attributes of
the water use in the lower basin, both within New Mexico and
Arizona, need to be clearly defined. In the era of pipelines
being proposed to transport water from the upper basin to the
lower basin, it is imperative that precedent setting situations
that will impact the law of the river in one form or another be
appropriately addressed.
In this regard, the transport of water from the upper basin
into the lower basin within New Mexico is a rather significant
matter but the further transport of that water into Arizona is
an additional significant step. The Board suggests that
legislation authorizing the transportation of water should be
clear as to the attributes of the water to be used in such
circumstances, and I will identify a couple examples.
The source of the water including linkage to any other acts
such as the Arizona Water Settlements Act, the priority
position of that water supply, the U.S. Supreme Court decree
accounting arrangement and any other important attributes such
as the operation, maintenance and replacement costs that may be
associated with that project such as you could use the central
Arizona project if it is an attached diversion from that
project.
The Board recommends that section 303 of the bill be
amended to provide this clear authorization and these points of
clarification. In the alternative, authorization for the
construction of facilities that would move water from the upper
basin to the lower basin should be removed from H.R. 1970.
In closing, Madame Chair and members of the Subcommittee, I
want to reiterate that the Board does not oppose the Gallup
Navajo project. However, it does want to ensure that this
legislation is consistent with the law of the river and
reflective of the broader concerns of California. Thank you.
[The prepared statement of Mr. Zimmerman follows:]
Statement of Gerald R. Zimmerman, Executive Director,
Colorado River Board of California, on H.R. 1970
Madam Chairwoman, and Members of the Committee and Subcommittee,
thank you for this opportunity to submit written testimony regarding
H.R. 1970. Set forth below are initial comments regarding the
provisions in H.R. 1970 from the perspective of the Colorado River
Board of California.
I am the Executive Director of the Colorado River Board of
California (CRB), the agency in California created by State statute to
protect California's rights and interests in the resources provided by
the Colorado River and to represent California in discussions and
negotiations regarding the Colorado River and its management.
California's rights and interests in the water and power resources of
the Colorado River System are vital to the State's economy. Seven
counties in Southern California, with more than half of the state's
population, receive water and hydroelectric energy from the Colorado
River. All ten members on the CRB are appointed by the Governor.
The CRB has reviewed H.R. 1970, and its companion bill S. 1171.
From our initial review of the proposed legislation, CRB does not
oppose the Navajo-Gallup Project; and it fully recognizes the value and
importance of the Project to the State of New Mexico and to the
residents of the Navajo Nation. However, the CRB does want to ensure
that legislation of this nature is consistent with the law of the river
and is reflective of broader concerns of the State of California. In
that regard, the CRB has a number of comments on the proposed
legislation, primarily from the perspective of the law of the Colorado
River. These comments are listed in order of the topic's appearance in
the legislation.
1. Section 101--Top Water Bank--Arrangements of this nature are
being utilized in various parts of the West where the reservoir
circumstances facilitate this sort of interim water storage. However,
in this situation the legislation does not clarify how the water to be
stored in the top water bank must be developed. It is the position of
the CRB that the legislation should be modified to provide that only
water created through extraordinary conservation may be stored in the
top water bank. In other words, water could only be stored if that
water would have otherwise been beneficially used except for the
implementation of extraordinary conservation measures and as provided
in H.R. 1970, it should be the first water to spill.
2. Section 102--Amendment of the 1963 Act--This section amends 43
USC 615 jj, which was enacted in 1962 as a component of the Navajo
Irrigation Project and San Juan-Chama Project authorizing legislation.
Section 2 of the 1962 Act is eliminated and a much more detailed
provision has been substituted. The CRB notes that the wording in
Section 102, subpart (b), relating to priorities in times of shortages
is not clear as to whether the first rights listed are to have priority
over the others or are the first to be cut back. Clarification of this
provision would be useful in obtaining a full understanding of the
intention behind the proposed legislation.
3. Section 201--Funding via the 1902 Act Reclamation Fund--This
section of the proposed legislation provides a creative mechanism for
funding implementation of settlement agreements and completion of the
Navajo-Gallup Project. The CRB understands that Section 201 provides
that $1.1 billion would be deposited into the treasury before it is set
to terminate on September 30, 2030.
Section 201 (c) (3) provides that completion of the Navajo-Gallup
Project will be given a priority, for up to as much as $500 million, if
the federal share of Project costs has not been otherwise provided by
January 1, 2018. Since the Reclamation Fund is made viable through the
repayment of reclamation projects from around the West, many of which
are in the State of California, the CRB questions the fairness of
providing to the Navajo-Gallup Project a priority position to receive
up to one-half of all funds designated for deposit into the new
settlements fund. Prior to taking a formal position on this section of
the bill, the CRB will need to consider this matter further accounting
for the likely needs of California projects that are linked to
settlement agreements involving the United States. One approach may be
to have the new fund be a source of revenue for the Navajo-Gallup
Project should additional federal funding be necessary by 2018 on a
basis of sharing with other deserving projects in the West, instead of
with a priority as set forth in Section 201.
4. Section 303--Delivery and Use of Water--This section of the bill
gets to the heart of the concerns of the CRB regarding the law of the
Colorado River and the need to be consistent with the Colorado River
Compact of 1922. One concern is the clear provision of authority to use
water in the lower basin even though that water will be diverted in the
territory of the upper basin. H.R. 1970 needs to specifically address:
1) the diversion and use authority in the context of the 1922 Colorado
River Compact, and 2) the attributes of the water use in the lower
basin both in New Mexico and Arizona.
A related concern is with the use of such water in the territory of
the lower basin within the State of Arizona so as to serve the
community of Window Rock on the Navajo Reservation. The State of
Arizona has asserted that such water will need to be viewed as a
portion of Arizona's lower basin apportionment and should also come
with certain attributes linked to the Central Arizona Project (CAP)
such as priority date and repayment of project operations, maintenance,
and replacement costs. Mr. D'Antonio for New Mexico has asserted that
H.R. 1970 should ``leave open the determination of the source of water
for use in Arizona'' and that accounting for the water as a diversion
of CAP water would ``have to be agreed to by all basin states,'' which
has not yet occurred. This issue needs to be resolved among the
Colorado River Basin states and the agreed upon solution included in
H.R. 1970.
In the current era of pipelines being proposed to transport water
from the upper basin to the lower basin, it is imperative that
precedent-setting situations that will impact the law of the river in
one form or another be appropriately addressed. In this regard, the
transport of water from the upper basin into the lower basin within New
Mexico is a rather significant matter, but the further transport of
that water into Arizona is an additional significant step. The CRB
suggests that legislation authorizing the transportation of water
should be clear as to the attributes of the water to be used in such
circumstances; for example, the source of water (including linkage to
the Arizona Water Settlements Act if appropriate), the priority
position of that supply, U.S. Supreme Court decree accounting
arrangements, and any other important attributes such as project
operations, maintenance, and replacement costs that may be associated,
for example, with the CAP water supply. Thus, the CRB recommends that
Section 303 of the bill be amended to provide these points of
clarification. In the alternative, authorization for the construction
of facilities that move water from the upper basin to the lower basin
should be eliminated from H.R. 1970.
If the Arizona position regarding the use of CAP-related water is
adopted, the CRB also suggests that attention be given to what
additional authority may be needed so as to clearly provide that CAP-
related water may be delivered by the Secretary to a portion of Arizona
not contemplated as a part of the CAP service area at the time of its
authorization in 1968.
5. Section 306 (f) (3) and Section 302 (f) (3)--Application of the
Endangered Species Act--These sections of the bill address the
``application of the'' ESA, but it is unclear as to the intended effect
of these provisions.
6. The State of Arizona has taken the position that H.R. 1970 and
S. 1171 should not be enacted without a parallel settlement of the
rights of the Navajo Nation in Arizona, arguing that all Indian water
rights settlements should be comprehensive, if possible. Although the
CRB understands and appreciates the position of Arizona on this issue,
the CRB is not prepared to advance a position on this specific issue at
this time.
Nevertheless, it is important to express our concern over the
lawsuit filed by the Navajo Nation in 2003 in the United States
District Court in Arizona. California agencies represented on the CRB
have intervened in that litigation. That suit contains claims that
challenge some very important lower basin water management programs.
For example, the suit challenges a number of matters related to
California's Quantification Settlement Agreement (QSA): 1) that the
National Environmental Policy Act (NEPA) compliance process for the QSA
was flawed; 2) that the Record of Decision associated with the
Secretary's approval of the QSA and the Inadvertent Overrun and Payback
Policy (IOPP) is flawed; 3) that the NEPA compliance process for the
IOPP is flawed; and 4) that the NEPA compliance process for the Interim
Surplus Guidelines was flawed.
Similarly, the Navajo Nation has challenged the Arizona Water
Banking Authority's interstate storage program and the federal
regulations promulgated to facilitate that program. The Navajo Nation
asserts these claims on the foundation that these kinds of water
management actions have an impact on the Nation's claim to Colorado
River water in Arizona and its eventual use of that water. However, in
reality none of these actions or programs impacts the amount of water
available to the Nation as a part of the Nation's federal reserved
rights claims, as a practical matter (actual water supply) or in
relation to the availability of Arizona's unused apportionment to
satisfy the Nation's lower basin claims. This lawsuit presents a cloud
over these important river management programs that are of benefit to
the basin states. As a result, the CRB suggests that it be a high
priority to obtain a dismissal of that suit whether in the context of
the Arizona settlement, the New Mexico settlement, or both.
In closing, I want to reiterate that the CRB does not oppose the
Gallup-Navajo Project; however, it does want to ensure that
legislation, such as H.R. 1970, is consistent with the Law of the River
and is reflective of the broader concerns of the State of California.
Additionally, the comments set forth above have been advanced on the
basis of its initial review of the proposed legislation and the
comments of others. As such, the CRB would like to reserve its
opportunity to revise any of the positions advanced above and to add to
its comments, if additional points of concern come out of this process.
On behalf of the CRB, I want to thank the House Committee and
Subcommittee for the opportunity to provide this testimony and for
giving attention to the comments of the CRB. Should the subcommittee or
committee require any clarification of these comments or additional
information, you may reach me at (818) 500-1625, extension 308.
______
Response to questions submitted for the record by
Gerald R. Zimmerman on H.R. 1970
(To Whoever) The Jicarilla Tribe is currently receiving funds for the
Jicarilla Apache Reservation Rural Water System rural water
project. How do the funds from this legislation relate to the
current project funds?
Answer--Not applicable to the Colorado River Board
(To Whoever) Who is responsible for the operation and maintenance
costs? Who will own the infrastructure once it is completed?
Answer--Not applicable to the Colorado River Board
______
Mrs. Napolitano. Thank you for the testimony, and now I
move on to the question and answer. Before I start, there are a
couple of little items that I wanted to touch base on. There
are three renderings in the back of the room by children in
regard to the water delivery, and I am going to enter into the
record copies of those so that people will realize what it
really means to those children. I think that is a very
important point to make. So without objection I will order that
to be.
Then, Mr. Houtz, you mentioned you wanted Arizona to be
part of the agreement. How close are you to being able to reach
consensus so that it possibly could be added if that were the
case?
Mr. Houtz. I think it depends on whether the money is
available. We have been meeting on a fairly regular basis. We
have a meeting scheduled with the Navajo Nation in about three
weeks, three and a half weeks, where they will submit another
formal proposal to us. I cannot go into details because of the
litigation.
However, the funding is the key, and if funding is
available I am sure that we can reach an agreement. It is very
hard to come up with funding in this Congress with so many
things going on, and we think that the approach that New Mexico
and the New Mexico delegation has taken is a very creative one,
and we want to be part of it.
I cannot really put a timetable on it but if we can solve
the funding issue I think we could be done quickly. We have
been working on all the other issues over the years and can
conclude quickly after that.
Mrs. Napolitano. It is my understanding that the lower
Colorado region is already over appropriated. Where will you
get the water for Arizona?
Mr. Houtz. As we point out in our testimony, Congress
reserved a portion of the water that was transferred to the
Secretary under the Arizona Water Settlements Act, and they
reserved 6,411 acre feet of the CAP water to be reserved for an
Arizona Navajo settlement for delivery to Window Rock. So we
believe that at least the Window Rock portion has already been
designated out of the Arizona Water Settlements Act, and we
have offered up a portion of the other water reserved under
that Act to the Navajo Nation for settlement of the rest of the
claims in Arizona. There is a question of the firmness and the
ability to deliver that, and we are negotiating with them on
that.
Mrs. Napolitano. Thank you.
Mr. Houtz. But it would be out of existing sources and
existing allocations.
Mrs. Napolitano. If it were not for the fact that the
Navajo Nation has been waiting for decades, I would tend to
agree with many of the points that you have made but that would
mean holding off for another decade probably, and that just
does not seem quite the thing to do or the humane, how would I
say, the legal thing to do.
Mr. Houtz. Madame Chairwoman, if we do not come to at least
great progress on an Arizona settlement, we will be in
litigation in October. The stay that the Court has granted us
is only until October 12 of this year. So I am not thinking
that we are waiting a decade. I think we are waiting a number
of months to see where we are, and if we are not negotiating we
will be in Court litigating.
Mrs. Napolitano. And you have been in contact with the
Senate and the authors?
Mr. Houtz. Yes. Last month the Senate Energy Committee had
a hearing on this. We have been in close contact with their
staff over there.
Mrs. Napolitano. Mr. Shirley, comment?
Mr. Shirley. Madame Chairwoman, I think the Navajo Nation
and the State of New Mexico are ready to move forward at this
point with H.R. 1970, and we would like to see it legislated
and acted upon and monies put into it ASAP. Like you said,
Madame Chairwoman, we have waited for a long time, and now that
we are here we really need to be moving forward.
I think the settlement that we are negotiating with Arizona
is going to take--I agree with you--more years. I do not think
it can be negotiated and settled in short order. So I would
like to see as President of the Navajo Nation that we move
forward with this legislation H.R. 1970. Thank you.
Mrs. Napolitano. What about your members in Arizona? Are
they in agreement?
Mr. Shirley. Yes, I believe so. I have some legislators
representing the Navajo Nation council here with me. The Navajo
Nation council is in full agreement with what we are doing.
They are in full support, yes.
Mrs. Napolitano. And I understand that the Navajo Nation
has waived nearly half of their water claims in the settlement
in exchange for water infrastructure. What other options do you
have if this legislation is not passed?
Mr. Shirley. If it is not passed, I think litigation is the
thing that looms, and of course as President I am not one to
fight anybody. I think the goal of this is to settle it. We
have with the State of New Mexico, the different users of the
water, and these lawsuits, it takes millions of dollars, and
rather than putting it in fighting we need to put it into
infrastructure and serving the people. I think we have come a
long ways toward settling this, and I think we need to get it
on the books and get it behind us.
Mrs. Napolitano. Thank you. Mr. Udall.
Mr. Udall. Thank you, Madame Chair, and thank you for your
interest in this. I just want to thank you once again for
holding this hearing and your interest in it, and as you
pointed out, I mean, the real issue here is children and
children growing up like everybody else. Let me first thank all
of the panelists for your testimony today. Patricia Lundstrom
and President Joe Shirley and Jim Dunlap on the New Mexico side
have done an awful lot to move this forward, and this piece of
legislation had a large, large number of people that have
worked and these three have been out there on the front, and I
just thank you for your hard work and thank you for your
leadership and also Mr. Houtz from Arizona and Mr. Zimmerman
for your interest in trying to work things out here.
These pieces of art work from the children of Lake Valley
School I think really say it all. You know these young people
want to have water like everybody else, and I think that is the
point, Mr. Johnson, that we are trying to get across to this
Administration. I am happy you did not read your statement
today because it is just full of inconsistencies, and it would
fly in the face of what I think is a very good, positive
settlement, and I am very disappointed in the Administration's
position.
I cannot tell you that too strongly. If I expressed it as
strongly as I felt, we might not have a chance to bring you
around on this. So I just hope that you will take a look at
this in terms of the big picture, and the first question I
would like to ask you, Mr. Johnson, have you been to the Navajo
reservation?
Mr. Johnson. Yes, I have.
Mr. Udall. Yes. And have you seen the situation out there?
Have you lived in a hogan and done like 70, 80,000 Navajos are
where you have had to haul water to cook and to wash and
prepare your daily needs? Have you kind of imagined how that
would be?
Mr. Johnson. I have not lived on the reservation certainly
but I have----
Mr. Udall. Well we might like to host you out there for a
day if you would like to come and get a real feel for the
situation on the Navajo reservation. Do you think there is any
other group of this magnitude that is in this water situation
in the country? I mean, you look at the water situation for the
whole country where you have kids that are living in a
situation where they do not have water, where their families
have to haul water, where there is probably a high level of
unemployment, these kinds of things. Is there a water situation
like this anyplace else in the country?
Mr. Johnson. Let me go back to your previous question.
While I have not actually lived on the reservation in any of
the homes, I have visited there, and I have personally seen the
water conditions on the Navajo Nation, and in my previous job
the Navajo Nation was part of the region of the Bureau of
Reclamation that I worked with, and so I am familiar with the
issues of the Navajo Nation and the needs for water supplies,
and I agree that certainly the needs are very great.
There are lots of other tribes and Indian reservations
across the west where water is an issue, and I do not know that
there is one that is as big. The Navajo Nation is certainly the
biggest Indian tribe I believe in the west. So I do not know
that there are any as big as the Navajo Nation but there are
certainly others that are in need of water supplies in a
similar way.
Mr. Udall. Do you think that there is an obligation on the
part of the Federal government when you have the treaty that
President Shirley talked about where we agreed to really help
them build a permanent reservation? I do not see how you build
a permanent reservation without some kind of water supply. I
think you doom their economic development and their daily
living if you do not have a water supply situation. Would you
agree this would be something to fulfill the treaty obligations
and that it is long overdue at this point?
Mr. Johnson. I do not know that I am in a position to talk
about what the formal obligations of the United States are. I
am not familiar enough with that law and those provisions of
the treaty to try to answer that.
Mr. Udall. Well let me ask a little more specifically here
because your objections seem to focus on--I noticed my time is
up, Madame Chair.
Mrs. Napolitano. That is OK.
Mr. Udall. Let me focus here on your Administration's
public support for what is called the Rural Water Supply Act of
2005. You know you have publicly been out there. That is a law
that says that in rural water supply systems the Federal
government steps up to the plate and pays 75 percent which is
what is in this piece of legislation. So I think with your
position on the one hand which is very different than many
other Administrations in terms of water settlements, and then
your position on rural water supply in this particular act just
do not fit with me. So, I mean, can you explain to us how you
rationalize that with the enormous needs that are out there?
Mr. Johnson. Well it is true that we have a Rural Water
Supply Act that was passed. Was it last year? Yes, at the end
of the last Congress that authorized Reclamation to work with
rural areas in planning and assessing the needs for water
supplies in the west. That legislation calls for us to develop
criteria under which we would administer that program, and we
have not yet developed that criteria.
We anticipate that that would be developed by the end of
2008, and so until we have got that criteria in place I do not
think there is any basis for us to judge how this Act and how
this settlement would fit under that criteria. I do not think
we are saying that it would or it would not be viable under
that criteria. I am just saying that we have not developed the
criteria, and there is no basis for us to make that judgment at
this time.
Mr. Udall. If you are going to wait on the development of
the criteria until the end of 2008, you all are going to be out
of office. Your Administration is gone, and you have not made a
step forward to try to help us get this legislation passed and
in a position that we can start helping people with water, is
that not right? If you are going to wait.
It seems to me at a policy level in the department if you
have made the decision that rural water situations it is OK for
the Federal government to weigh in and pay 75 percent then I do
not see why you cannot be given instruction or somebody in the
department cannot say let us start working on the settlement
and try to get these things worked out.
Mr. Johnson. Well I think that you know I mentioned in my
oral testimony that we met yesterday, and we have scheduled
next week more discussions with the state and the Navajo
Nation. I think that some of those things are part of what is
being talked about in those discussions. So I think we are
interested in working with the Navajo, and I do not know that
the development of our regulations on rural water necessarily
precludes what might happen in a settlement of the tribe's
Indian claims.
I mean, there are some difficult issues associated with
this settlement. The cost and I think the funding mechanism are
the primary ones that we have concerns about but there are
others such as the reimbursement of the other parts of the
project other than the tribal part, and those are part of what
I think we are talking to the Nation and the state about in
these discussions.
Mr. Udall. Madame Chair, you have been very generous. I
know you have other questions.
Mrs. Napolitano. We have a vote pretty soon so you better
wrap it up.
Mr. Udall. OK. Let me ask about your understanding as far
as other entities being involved because I know, Mr. Johnson,
part of your testimony dealt with the idea that there were not
adequate or significant contributions. Are you aware, as Mr.
Dunlap said, that the State of New Mexico and Governor
Richardson in past legislation, they have talked specific
amounts? I mean, I have seen amounts from $75 million and up in
terms of making contributions to this, and I am sure if it was
a critical part that they would be willing to step up to the
plate further.
So I think it is really important for you to let us know in
terms of numbers what is needed there in terms of moving this
along. I mean, do you have any specific things you can tell us
right now in terms of what you think is an adequate
contribution in terms of the other parties to a settlement like
this?
Mr. Johnson. We are aware of New Mexico's proposal for
contributions. I am not in a position today to be able to give
you an answer on what will be required. I am just not in a
position to answer that now. I think that will be something
that would be talked about in the discussions.
Mr. Udall. OK. Well Madame Chair, thank you. I want to
thank you very much for holding the hearing, and I know about
your sympathy for children in this kind of situation. Because
we have the votes and all of that, I hoped to go into more
detail with some of the other witnesses, but I hope that we can
submit some of our questions for the record and have the
witnesses answer them. I look forward to visiting and spending
significant time out there in New Mexico to assure the Federal
government that New Mexico is fully behind this, and we hope
Arizona will also join us along the way, and thank once again
Mr. Dunlap and President Joe Shirley and Patricia Lundstrom and
all the panel.
Mrs. Napolitano. Thank you, sir.
Mr. Udall. Thank you.
Mrs. Napolitano. Commissioner, do you think some of those
questions might be answered in writing?
Mr. Johnson. Certainly we will respond to any questions
that you submit. I am not sure that we may be able to go
because we are in discussions. I am not sure how far, how much
detail we will be able to provide in writing but certainly to
the extent that we have information we will respond as best we
can.
Mrs. Napolitano. Clarify at least some of the questions
that some of the members may have.
Mr. Johnson. Well I think particularly the question that
Congressman Udall was asking about what is an acceptable cost
share, I think I do not know what our timeframe is for
establishing that. Certainly we will respond to that as best we
can in writing, and I just do not want to commit to a lot of
specifics as it relates to that.
Mrs. Napolitano. You are the Commissioner.
Mr. Johnson. Yes, I am, but I work with a lot of other
people on these issues as well including Mr. Ragsdale, Director
of the Bureau of Indian Affairs, and certainly others as well.
Mrs. Napolitano. Understood, and I know how it runs. That
is precisely why we want it for the record.
Mr. Johnson. I understand.
Mrs. Napolitano. In page 4 of your testimony you indicate
that the CNP provide a flexible framework to evaluate the
settlement but then you only focus on the underlying Federal
liability in discussing the appropriate Federal contribution.
The CNP, however, specifically talk about Federal and non-
Federal exposure plus Federal trust or programmatic
responsibilities as a measure of a Federal contribution. The
CNP also refers to the overall value of the tribal claims to
water. Is the Administration trying to reinterpret or amend the
CNP in an attempt to reduce the Federal contribution to Indian
water rights settlements?
Mr. Johnson. If I could, Madame Chairman, I would like to
defer that question to Director Ragsdale.
Mrs. Napolitano. Thank you. Mr. Ragsdale.
Mr. Ragsdale. Thank you, Madame Chairwoman. I thought I was
going to get off completely. The short answer to your question
is no.
Mrs. Napolitano. Explain please.
Mr. Ragsdale. We are not trying to reinterpret the criteria
and procedures that were published in the Federal Register in
1990 and subsequent Administrations have endeavored to follow
since with regards to all of the water rights negotiations with
Indian tribes.
Mrs. Napolitano. OK. Well that is interesting. I will take
that into consideration. I guess partly my concern in hearing
how long it has been before something of this nature has to be
brought up to Congress for action--I am talking about water
deliveries and I understand that there are many other tribes
that might not have water delivery--is it possible that the
Bureau of Indian Affairs may bring to the Congress other
situations in the future so that we do not have to go through
protracted discussions and be able to determine whether or not
we can start setting aside funding to be able to provide
potable water to people in the United States that should have
had it a long time ago?
Mr. Ragsdale. Well my understanding is that there are five
specific negotiations ongoing in New Mexico right now with the
Pueblo tribes. I think in Commissioner Johnson's and my
statement we make reference to that, and that was one of the
things that the Administration believes that should be taken
into account in concern with this one.
Mrs. Napolitano. Thank you. I will probably put one of the
questions to your administration, sir. Mr. Houtz, could you
please clarify a previous answer? Are you saying that in order
to receive water under this settlement the Navajo Nation must
give up some of its legal claims to water in Arizona?
Mr. Houtz. Our reading of what Congress passed in the
Arizona Water Settlements Act is that if the water is to be
made available for Window Rock under that Act that they have to
come to a settlement with the State of Arizona on the Arizona
claims. That might not answer all of your question. I am not
sure I understood all of your question. We believe that they
need to waive and release their claims to the main stem
Colorado River for us to enter into a settlement on the Arizona
side of the lower Colorado River basin on the reservation.
Mr. Shirley. Let me perhaps shed a little light on that. In
this Settlement Act, I believe any water that is diverted
across the Arizona state line has to be settled separately and
completely with Arizona and the Navajo tribe. It has nothing to
do with we are not going to deliver any water across the
Arizona line until Arizona and Navajo Nation reach an agreement
on that, and I would remind Arizona that the infrastructure
that we are asking for in this project to put the pipeline down
to deliver some of Arizona's entitlement water to the Navajo
tribe is a great benefit for the State of Arizona, and while I
listened to Arizona and California both in their concerns about
the law of the river, certainly New Mexico will follow the law
of the river, and we will negotiate with them in those things
but we do not believe that, as they will not believe that we
should have any hold on any negotiations of the use of their
water within California or Arizona.
That is their water. They are entitled to work that out as
we are in New Mexico but we will work with them any way we can.
Thank you.
Mrs. Napolitano. Thank you. Just a last question. I think I
might have to wrap this up but, Mr. Johnson, are Mr. Zimmerman
and Mr. Houtz' concerns regarding the law of the river
warranted, and what are your thoughts?
Mr. Johnson. I think that there are pieces of the
settlement that does require clarification under the law of the
river. I think that as a practical matter nobody is harmed. I
don't mean physically. I mean, there is nobody that is being
harmed by what is being proposed. However, I think that there
are some places where what is being done is inconsistent with
the law of the river as it currently exists.
I think that is something that can be worked out. I think I
have heard the states say that there are ways to develop
language that would go in the legislation that could satisfy
folks' concern there, and I--like we usually do--encourage the
states to get together and work that out. I think it is
something that is solvable.
Mrs. Napolitano. Well I would hope that they would sit and
work with all the parties to be able to ensure that everybody
is understanding why it was formulated and how it benefits
everybody. With that, just a couple more comments I would like
to tell Ms. Lundstrom, that I like your statement of real water
to real people in real time, and real wet water since we do
communicate that in terms of paper and water, real water. It is
really the wet water that I found out and I am still learning
so I was very interested in your motto.
Ms. Lundstrom. Thank you, Madame Chair. We will make that
correction on our testimony.
Mrs. Napolitano. That is just a comment because I am
hearing wet water versus water, and to me water is supposed to
be this not just comments and not just paper. With that, I
would like to be able to conclude the Subcommittee's
legislative hearing on H.R. 2515, the Lower Colorado River
Multi-Species Conservation Act, and H.R. 1970, the Northwestern
New Mexico Rural Water Projects Act.
I thank all of the witnesses for coming here today and
offering their perspectives on both of these bills. Your
comments, testimony and expertise has been very helpful. Under
committee rule 4[h] additional material for the record should
be submitted within 10 business days, business days, after the
hearing, and I would appreciate the cooperation of all
witnesses in prompt response and reply to any questions that
have been put to you that were not answered.
With that, I would like to thank you and all the people for
being so kind and accommodating. The hearing is adjourned.
[Whereupon, at 12:23 p.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows:]
[A statement submitted for the record by Elston Grubaugh,
Acting General Manager, The Imperial Irrigation District, on
H.R. 2515 follows:]
Statement submitted for the record by Elston Grubaugh, Acting General
Manager, The Imperial Irrigation District, on H.R. 2515
Madam Chairwoman and members of the committee and subcommittee,
thank you for the opportunity to submit written testimony regarding
H.R. 2515, concerning the Colorado River Multi-Species Conservation
Program (MSCP). The MSCP is an exceedingly important program to water
and power users in southern California and therefore we urge you to
strongly support H.R. 2515 as it moves through the Congress.
I am the acting general manager of the Imperial Irrigation District
(IID). IID is the largest irrigation district in the United States in
terms of water volume used. IID holds a right to almost three-fourths
of California's 4.4 million acre-feet (maf) apportionment to the
Colorado River. Growers within IID produce crops worth more than a $1
billion a year, including much of the winter vegetables consumed
throughout the United States. Because of its dependence on the Colorado
River as its sole source of water supply, IID is very concerned about
the MSCP and this effort to obtain congressional approval of this
vitally important program.
I want to emphasize that the Colorado River is very important to
the citizens of California as a whole. As you know, Colorado River
water is used to supply water to about 20 million people in southern
California and supplies water to hundreds of thousands of acres of
fertile farm land in that region. Although California is blessed with
more abundant water supplies in the northern part of the state,
providing water to the arid southern part of California has been a
challenge throughout its history. Now that southern California is
clearly dependent on the Colorado River as a source of supply, it is
essential to see the MSCP as an important insurance policy that will
hopefully protect California's Colorado River water and power users for
decades into the future.
Stated differently, part of the effort behind the MSCP is to avoid
the kinds of Endangered Species Act (ESA) disasters that have unfolded
in the Klamath region of California and Oregon, on the Snake River
system in the northwest and on the Rio Grande system in New Mexico. In
this context, it is important for the Congress to recognize that
California and the water and power agencies in our state have chosen in
this situation to work within the structure of the ESA, as opposed to
attempting to avoid its often burdensome regulatory requirements.
With the goal of protecting California's water and power supplies
in mind, it is critical to take into account recent events occurring
within California that have caused what some are calling a water
crisis. With population growth and global warming as a backdrop, the
Bay Delta region now faces a host of problems that are also tied to the
ESA and the California Endangered Species Act (CESA). Facing the loss
of a substantial supply of water from northern California via the
California aqueduct, urban southern California must now brace for a
very serious circumstance in 2008 and beyond. The significance of this
water crisis for California cannot be overstated. It is therefore
fundamental, in our view, to pay special attention to those areas in
which we can bring security to the water supplies that feed southern
California. In simple terms--that is the main purpose of the MSCP. In
essence the MSCP is an insurance policy that protects southern
California's use of Colorado River water, in the context of the ESA,
for a period of 50 years. In light of recent ESA developments around
the West, this form of protection for southern California should be
viewed as an absolutely essential action based on sound public policy.
We recognize that some have suggested federal legislation to
support the MSCP is not needed. In our view this is a mistaken
perspective. It is the position of IID that federal legislation is
indispensable. Here is a brief summary of the more important reasons
for this legislation.
1. Authorization for appropriations--IID is familiar with the
federal legislative process and with the annual difficulty of
developing an approved federal budget. In this situation the MSCP
agreements provide for 50 percent of the program funding to come from
the federal government, via the Bureau of Reclamation. Even if
Reclamation has been successful in obtaining appropriations for these
purposes in recent years, MSCP participants like IID want the security
of an authorization of appropriations for this program. Given the long-
term contractual financial commitment of the non-federal agencies and
states, requesting a parallel commitment from the federal government is
not unreasonable. This is a significant long-term federal program--
eventually costing more than $1 billion--that deserves the security of
an authorization for appropriations.
2. Cost sharing--the MSCP agreements provide for a 50/50 cost-
sharing arrangement between the federal and non-federal parties. IID
sees this as a fair arrangement, but to date that arrangement is only
supported by the commitment of federal executive branch officials.
Again, this is a long-term, expensive program that is of critical
importance to the non-federal parties like IID. Something as important
as the 50/50 cost-share arrangement should be blessed by the Congress.
3. Authorized program for the Bureau of Reclamation--the MSCP is to
be implemented and managed on a day-to-day basis by the Bureau of
Reclamation. IID is comfortable with that arrangement and, indeed, IID
has confidence that Reclamation will do an excellent job in
implementing the MSCP. Nevertheless, IID is aware of questions that
have been asked about Reclamation ``mission creep.'' In other words, in
the light of evolving times the mission of the Bureau of Reclamation is
also evolving. But some Members of Congress have suggested that
substantial changes in the mission of Reclamation should be approved
and sanctioned by Congress. IID agrees. The MSCP is a species and
habitat restoration program. It is not the construction of a dam or
canal or other such water supply feature--which is viewed as the
original mission of the Bureau of Reclamation. In order to avoid any
confusion over the 50-year period of this important ESA program, it
will be very helpful for the Congress to expressly empower Reclamation
to carry out this program and to implement the MSCP in accordance with
the program documents.
4. MSCP water uses--the MSCP legislation provides authority for the
Secretary of the Interior to enter into an agreement with the three
lower basin states of California, Arizona and Nevada in order to
legally support the kinds of water uses that will be essential for its
implementation. Under the authority of the Boulder Canyon Project Act
(43 USC 617 et. seq.) the secretary has issued contracts for the use of
water in the lower basin states. Those contracts routinely provide that
the use of water will be for domestic or irrigation uses, or both. But
here the use of water will be for the maintenance of protected species
and for the maintenance of habitat. The result is that there could be
tension between the underlying legal underpinnings of water acquired
for MSCP program purposes and the unique nature of the MSCP water uses.
In other words, without this provision in the MSCP legislation, a
critical component of the MSCP program--application of water for the
needs of species and habitats--could be on questionable legal ground.
IID has personal experience with this issue in the context of the
Quantification Settlement Agreement (QSA) and differing views as to
what water uses might be allowed under certain water delivery
contracts. IID strongly urges that reasonable action be taken to avoid
that problem in this situation.
5. Waiver of sovereign immunity--the MSCP legislation provides for
a narrow waiver of sovereign immunity to enforce program agreements. As
you know, the MSCP is a combination of compliance under Sections 7 and
10 of the ESA. Section 10 is that part of the ESA that applies to non-
federal parties and provides for the development of long-term habitat
conservation plans (HCPs). The MSCP is in essence an HCP under Section
10 of the ESA. Part of the Section 10 HCP process is the execution of
an implementation agreement between the U.S. Fish and Wildlife Service
and the non-federal parties helping to fund the HCP. That agreement is,
of course, a binding contract between the parties and in this case
involves a great deal of money and lasts for a period of 50 years. The
implementation agreement also specifically provides that the remedy of
money damages is unavailable to any of the parties. Under these
circumstances IID believes that it is reasonable to request the
enactment of a waiver of sovereign immunity so that the non-federal
parties have a clear opportunity for judicial enforcement against the
Fish and Wildlife Service should this be necessary within the 50-year
program term.
Along with its non-federal MSCP partners, IID has devoted more than
10 years and considerable resources to the development of the MSCP. Now
IID faces substantial annual financial payments to help fund the MSCP.
Even with that burden IID sees the MSCP as a very beneficial and well-
structured program that is critical to its long-term plans to provide
security for its water and power resources under the federal ESA and
CESA. IID remains committed to its support of the MSCP, but the
district would like to see that commitment matched by the congressional
approval of H.R. 2515.
The reasons outlined above clearly demonstrate that there is a
strong need for federal legislation in this regard. IID therefore urges
the committee and the full House to enact this important legislation.
Should the subcommittee or the committee require any clarification of
these comments or additional information, please contact Mr. Brad
Luckey at (760) 339-9785. Thank you again for the opportunity to submit
this testimony.
______
[A statement submitted for the record by Herbert R.
Guenther, Director, Arizona Department of Water Resources, on
H.R. 1970, follows:]
Statement of Herbert R. Guenther, Director, Arizona Department of Water
Resources, Representing the State of Arizona, on H.R. 1970
Madam Chairwoman 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. 1970, the ``Northwestern New Mexico
Rural Water Projects Act of 2007''.
H.R. 1970 represents another important step toward the settlement
of long standing water rights claims held by the United States
government on behalf of American Indian Tribes. The Navajo Nation is
the largest Tribe in Arizona measured both in terms of population and
land area. The Navajo Reservation lies within the boundaries of three
states: Arizona, New Mexico and Utah. It also lies within one of the
most arid regions of the United States and the lack of water
development and infrastructure has created a great hardship on the
Navajo Nation's residents, both in terms of economic opportunity and
general lifestyle. The geography of the Reservation is also complicated
in a hydrologic sense because it encompasses land which is located in
both the Upper and Lower Colorado River Basins.
H.R. 1970 contains provisions that will greatly aid the portion of
the Navajo Reservation within New Mexico and, potentially, within a
portion of Arizona. Arizona is supportive of the efforts of the State
of New Mexico and the Navajo Nation in completing a water rights
settlement agreement. We are supportive of the provisions of H.R. 1970
that create a funding mechanism to ensure that necessary water
development projects will be constructed in a timely manner. We are
supportive of the creative efforts of the New Mexico congressional
delegation to ensure that there will also be non-Indian beneficiaries
who will receive water from the rural water projects, and we are
generally supportive of the opportunity for the State of New Mexico to
make full use of its Upper Colorado River Compact entitlement. The
Committee should remember that the San Juan River is part of the
Colorado River system as defined in the 1922 Colorado River Compact
(1922 Compact) approved by all seven Colorado River Basin States. In
this regard, programs and settlements in the San Juan Basin affect the
Colorado River as a whole, and vice versa.
While generally supportive of this settlement, we cannot support
H.R. 1970 as it has been introduced because we have several concerns
about the implications of certain provisions to the existing ``Law of
the Colorado River,'' and about the provisions that relate to uses of
water from the Northwestern New Mexico Rural Water Supply Project
(Navajo-Gallup Pipeline Project) within Arizona and in portions of New
Mexico located in the Lower Colorado River Basin. Specifically, as
introduced, H.R. 1970 would violate provisions of the 1922 Compact
related to the use of Colorado River water allocated ``exclusively'' to
the Upper Basin to be used in the Lower Basin. The bill does not make
provisions for the proper accounting of water deliveries under the
Compact at Lee Ferry. H.R. 1970 does not specify how the accounting and
delivery of water for tribal use in Window Rock, Arizona would be
handled. H.R. 1970 would also set a precedent in that it would
subordinate Arizona's share of water in the Lower Basin of the Colorado
River to allow new uses in the Lower Basin.
Arizona and Arizona water users believe there is an opportunity to
provide even more certainty for the Navajo Nation and the Hopi Tribe by
including additional Titles which will settle water rights claims
within the Lower Mainstem Colorado River and Little Colorado River
basins within Arizona. The two Tribes are actively participating in
ongoing negotiations with governmental and non-governmental interests
in those basins. We are optimistic that the parties will complete a
water rights settlement agreement in a timely manner so that H.R. 1970
can be amended to become a more comprehensive solution. Therefore, we
believe Congress should not take final action on H.R. 1970 until we
have a chance to see if Arizona tribal and non-Indian parties can
achieve this Arizona settlement goal.
Additionally, an impetus for Arizona (as well as governmental and
non-governmental entities in California and Nevada) to negotiate with
the Navajo Nation is a direct response to the Navajo Nation lawsuit
against the Secretary of the Interior about operation of programs on
the Colorado River, including interim surplus guidelines, interstate
water banking, overrun and payback provisions, certain Colorado River
allocations, and protections of Lakes Mead and Powell. This 2003 U.S.
District Court lawsuit has been stayed pending negotiations among the
parties over Navajo Nation Colorado River claims. The lawsuit is a
cloud over the programs to conserve and deliver Colorado River water to
all the Basin States; threatening operations that benefit all seven
Basin States. It is a logical conclusion that the recent historic
agreement of the Seven Basin States of the Colorado River on shortage
guidelines and the coordinated operations of Lakes Mead and Powell
would also be challenged. Failure of that new agreement could mean
years of dispute among the States. Of course a successful Arizona water
rights settlement would remove this cloud. Therefore, we believe that
Congress should not take final action on H.R. 1970 without a resolution
and dismissal of the Navajo Nation lawsuit concerning the Colorado
River.
Title II of H.R. 1970 creates the Reclamation Water Settlements
Fund. This Fund will be used to construct project features that are
required to implement a congressionally authorized settlement
agreement. The State of Arizona is supportive of the concept for
funding that is described in Title II. However, we believe that the
funding need is worthy of even greater consideration. Indian water
rights settlements are being actively negotiated throughout the United
States. Funding of these settlement agreements is the single greatest
impediment to their successful completion. We believe it is time for
Congress to address the funding issue on a more comprehensive basis.
Many of the water rights being contested throughout the West are
rights that were ``reserved'' by the United States at the time of the
creation of the Indian reservations. In many instances, the United
States has failed to fulfill its intent in reserving that water for the
Reservations and has left the Tribes without the means to create a true
tribal homeland. In Arizona and other Western states, many of the
Tribes have recognized that they will have a better chance to obtain
the necessary funding which will lead to on-Reservation development by
entering into a water rights settlement rather than pursuing their
claimed rights through lengthy and expensive litigation. In most
instances the Tribes have settled for less water than they had claimed
in Court, but they were provided with the funding mechanism to actually
put that water to near-term beneficial use. This trade-off is essential
for a Tribe to make such a major concession regarding their valuable
water rights claims.
Having a dedicated water rights settlement fund with a dedicated
funding source will allow not only the Northwestern New Mexico Rural
Water Supply Project to be built but also many other worthy projects in
other states. The Committee should look at expanding Title II so that
the Reclamation Water Settlements Fund can have even greater potential
for dedicated revenues. The time frame for those deposits should be at
least fifty years. Withdrawals from the Settlements Fund for projects
other than the Northwestern New Mexico Rural Water Supply Project will
still be subject to the conditions placed upon them by Congress when
future settlements and projects are authorized. We urge the Committee
to explore opportunities to build on the Settlement Fund concept by
contacting the Western Governor's Association and the Western States
Water Council. At a minimum, H.R. 1970 should contain provisions for
the funding of a Navajo Nation/Hopi Tribe settlement in the Lower Basin
of the Colorado River if a settlement is authorized by Congress. It
would greatly benefit the Navajo Nation and Hopi Tribe in their water
development plans.
In addition to the need to first resolve the Navajo lawsuit and
water rights claims in Arizona, Arizona is concerned that H.R. 1970, as
currently drafted, conflicts with the Law of the River. H.R. 1970
contains several provisions related to deliveries of water through the
Northwestern New Mexico Rural Water Supply Project to locations in the
Lower Colorado River Basin, including the Window Rock area of the
Navajo Reservation within Arizona. In an attempt to be non-committal
about the source of water to be used for the Arizona component, the
bill's drafters have created confusing and potentially troubling
language. The problem arises because Window Rock, Arizona and Gallup,
New Mexico are located in the Lower Basin of the Colorado River as
defined in the 1922 Compact, but the point of diversion of the water
from the San Juan River is in the Upper Basin portion of the Colorado
River. Arizona believes that the terms of the Colorado River Compact
prohibit the use of an Upper Basin water allocation in the Lower Basin,
and vice versa. However, the State of Arizona can accept an explicit
exception to this prohibition as long as it is clear that the use of
water across the basin boundary is for a specific project and that the
project is within the same state that holds the allocation. Arizona
does not believe that the language of paragraph 303(g), which describes
consistency with the Upper Colorado River Basin Compact adequately
addresses the issue or meets the requirements of the Colorado River
Compact. We believe that an explicit congressional exception to the
provisions of the 1922 Colorado River Compact is required.
The Arizona Water Settlements Act (AWSA) of 2004 (P.L. 108-451)
contains a provision reserving for allocation 6,411 acre-feet per year
of Central Arizona Project (CAP) water supply for use in the Window
Rock area of the Navajo Nation pursuant to a future congressionally
authorized settlement. This provision was agreed to by Arizona at the
insistence of New Mexico. The terms and conditions for making this
allocation are enumerated in Sec. 104(a)(1)(B)(ii) of the AWSA. This is
the only water supply source that Arizona will agree may be utilized
for delivery through the Northwestern New Mexico Rural Water Supply
Project to the Window Rock area. The CAP water is a Lower Basin
Colorado River entitlement and the water will be used in the Lower
Basin. We believe this comports with the provisions of the Colorado
River Compact.
However, Arizona is concerned that this source of water for Window
Rock may be at risk. As the Committee may know, the Navajo Nation
opposed the AWSA, and they continue to oppose approval of the Gila
River Indian Community Settlement which is a requirement for bringing
the AWSA to a full enforceability stage. If AWSA does not become fully
enforceable, all the benefits of the AWSA will become null and void,
including the source of water for Window Rock and those benefits
accruing to Gila River water users in New Mexico. Therefore, we believe
Congress should not take final action on H.R. 1970 without the
withdrawal of the Navajo Nation's opposition to the implementation of
the provisions of the AWSA.
Assuming the CAP water source does prove to be available for Window
Rock, the diversion of water from an Upper Basin location for use in
the Lower Basin is unprecedented. Therefore, H.R. 1970 needs to include
specific provisions authorizing and clarifying accounting methods and
providing the Secretary of the Interior the authority to contract for
delivery of CAP water from a new diversion point in the Upper Basin.
Under current law, the Secretary has no authority to contract for
delivery of Lower Basin Colorado River water at points of diversion
above Lake Mead. Attached to this testimony, as part of a letter from
the Director of the Department of Water Resources to the New Mexico
State Engineer, are proposed amendments which will correct this and
other ``Law of the Colorado River'' problems Arizona finds with the
bill as introduced.
In 1968, Arizona's rights to develop in the Lower Colorado River
Basin were subordinated to pre-1968 rights in the Lower Basin States.
H.R. 1970 sets a precedent that New Mexico and Utah can increase
development in the Lower Basin and further jeopardize Arizona rights.
While Arizona does not challenge the right of any Upper Basin state to
develop their apportioned Upper Basin water for use in the Upper Basin,
we do want to be treated equitably for use of Upper Basin water in
Lower Basin development. H.R. 1970 does not address this concern and it
sets a precedent that is inequitable to the State of Arizona.
Specifically, the bill, subordinates Arizona's Central Arizona Project
(CAP) water to new Lower Basin uses developed with an Upper Basin water
allocation. This also subordinates the rights of Arizona Indian Tribes
that utilize CAP allocations.
Staff from the Arizona Department of Water Resources has had an
ongoing dialogue with the New Mexico State Engineer's staff for over a
year on these issues, including those outlined in this testimony. I
sent a letter to State Engineer John D'Antonio several months ago about
these issues. Mr. D'Antonio recently responded about Arizona's
suggested bill changes. I have attached copies of both of these letters
for the record. I do not agree with Mr. D'Antonio's response but we
continue to be open to discussions with our friends in New Mexico to
resolve these important Law of the River issues.
The Law of the River has been under attack for decades. For
example, in the early 1980s, a private group made what is known as the
Galloway Proposal. It would have allowed the transfer of Upper Basin
water rights to a California entity without regard to the prohibitions
of the 1922 Compact. The Seven Basin States were united in fighting the
proposal and rejecting this notion that the 1922 Compact was
irrelevant. It now appears that New Mexico is not as concerned about
the precedent that would be set if Congress does not address each 1922
Compact issue explicitly. Arizona remains very concerned and will
utilize all means available and necessary to protect its rights under
the Compact and the Law of the River.
Again, Arizona is willing to meet with Committee staff and the
representatives of the other six Colorado River Basin States to further
discuss our suggested changes, and to try to make sure that any
proposed amendments are acceptable to all affected parties and
consistent with the Law of the River.
In summary, the State of Arizona is supportive of the purposes of
H.R. 1970 in settling tribal claims and will work collaboratively with
the bill's sponsors and New Mexico's interested parties. We believe
that the bill should be expanded to include additional water rights
settlements in Arizona that are actively being negotiated with the
Navajo Nation and the Hopi Tribe. We urge the Committee to explore
opportunities to expand upon the concepts contained in Title II dealing
with the Reclamation Water Settlements Fund so that it can become the
mechanism for not only the proposed New Mexico Navajo settlement, but
potentially many other western tribal settlements as well. Before final
enactment of H.R. 1970, the Navajo Nation's challenge to the operation
of the Colorado River must be resolved, and the Navajo Nation's
opposition to the AWSA withdrawn. Finally, we cannot support the bill
as currently drafted as it relates to the source of the water supply
for the Window Rock area within Arizona, and certain provisions dealing
with the Law of the River. Ambiguity about the water source and the Law
of the River implications related to both Window Rock water delivery
and Gallup water delivery must be clarified.
Thank you for the opportunity to present the views of the State of
Arizona.
Attachments:
Director Guenther Letter w/attachments
State Engineer D'Antonio Letter
[NOTE: Attachments have been retained in the Committee's official
files.]
______
[A statement submitted for the record by Herbert R.
Guenther, Director, Arizona Department of Water Resources, on
H.R. 2515, follows:]
Statement of Herbert R. Guenther, Director of the Arizona Department of
Water Resources, Representing the State of Arizona, on H.R. 2515
Madam Chairwoman and Members of the Subcommittee:
Thank you for the opportunity to provide the following comments in
support of H.R. 2515, ``The Lower Colorado River Multi-Species
Conservation Program (LCR MSCP) Act''. In April 2005, the Secretary
signed the Record of Decision (ROD) and Program Documents that
implemented this comprehensive program to address the needs of
threatened and endangered species that rely on the Colorado River and
adjacent habitat for their continued existence. I, along with
representatives of California and Nevada, joined the Secretary in
signing the agreement that became the ROD. I hope that you will support
this important legislation that protects the substantial financial
commitment of the non-federal parties to the protection of these
species.
There have been other programs and individual efforts to improve
the status of Lower Colorado River species and habitats. But the LCR
MSCP differs from these other efforts in some significant ways. First,
the Program includes most of the major water and power users on the
Lower Colorado River. Second, the LCR MSCP is a coordinated, large-
scale Program covering approximately 100 miles of the Colorado River.
The opportunity to improve the status of these species to the point of
down or delisting is greatly enhanced by the geographic scope,
stakeholder participation and coordinated implementation of the
Program.
Although Program implementation has already begun, federal
authorizing legislation remains a final, very important goal. All of
the LCR MSCP parties fully support implementation of the Program, but
federal funding priorities change over time. The LCR MSCP is a long-
term, 50-year program. Program costs are high in the early years when
land and water acquisition and costly habitat restoration and
enhancement work are underway. The value of this early investment is
only secure if the federal contribution is assured for the full term of
the Program.
The federal and state parties have agreed to share Program
implementation costs totaling $626 million, indexed for inflation over
the 50-year term of the Program. Costs are split 50 percent federal/50
percent non-federal. H.R. 2515 will affirm this funding agreement by
providing that the federal share of Program costs will be non-
reimbursable, and cap the non-federal costs at the agreed upon amount.
The State of Arizona has provided legislative authority to collect user
fees to meet the Arizona portion of state parties funding obligation.
In addition to securing the Program financial agreements, this
legislation includes several provisions that affirm the agreements of
the federal and non-federal participants. H.R. 2515 provides that
subsequent Congressional action will not modify the party's
obligations, unless specific to the LCR MSCP. H.R. 2515 will secure the
``no surprises'' and permit revocation policies contained in the
Program documents. It provides for a limited waiver of sovereign
immunity to the extent that the non-federal parties would need to
enforce their agreements with the federal government. H.R. 2515 also
authorizes the Secretary to enter into an agreement with the Lower
Division States to provide water for implementation of the LCR MSCP.
The LCR MSCP development and implementation has been an open and
public process. The Draft Habitat Conservation Plan underwent
independent scientific peer review, and the final Plan was modified to
incorporate recommendations from the review panel. Steering Committee
meetings are noticed and open to the public, and Program documents are
available for review. Given the open and public nature of the Program,
the legislation would exempt the LCR MSCP Steering Committee from
Federal Advisory Committee Act requirements.
The important objectives of this Program can only be accomplished
if Reclamation obtains adequate, long-term funding to implement the
Habitat Conservation Plan. The LCR MSCP is the best program to address
endangered species needs while preserving cities, farms, Indian tribes
and power production uses of the Colorado River. Arizona supports H.R.
2515, the Lower Colorado River Multi-Species Conservation Program Act,
and asks for its enactment by Congress.
Thank you for the opportunity to present Arizona's view on this
important piece of legislation.
______
[A statement submitted for the record by the Jicarilla
Apache Nation, on H.R. 1970 follows:]
Statement submitted for the record by the
Jicarilla Apache Nation on H.R. 1970
I. Introduction
The Jicarilla Apache Nation (``Nation'') is pleased to submit this
testimony supporting and commenting on H.R. 1970, the Northwestern New
Mexico Rural Water Projects Act. The Jicarilla Apache Nation is a co-
sponsor in the
planning process for the Navajo Gallup Water Supply Project
(``Project''), a vital piece of this legislation and the Navajo Nation
Water rights settlement package. The Nation is a member of the Steering
Committee for the Project, and we have devoted substantial staff time
and resources over the last several years to the planning and
environmental compliance process for the Project.
II. 1992 Jicarilla Apache Tribe Water Rights Settlement Act, the
Nation's Contributions in the San Juan River Basin and Role in
the Northwest New Mexico Rural Water Projects Act
The Nation's water rights in the San Juan River Basin are the
subject of a 1992 settlement agreement and the Jicarilla Apache Tribe
Water Rights Settlement Act, Public Law 102-441, 106 Stat. 2237. We
traveled a long road to successfully negotiate our settlement, and we
find ourselves on an equally long road to secure the implementation of
the settlement in order to fully realize its benefits for our people.
When faced with obstacles to the use of our settled water rights, we
have consistently shown leadership in finding solutions that benefit
not only our people, but also our neighbors in the San Juan River
Basin. We have, for example, provided leased water supplies to large
and small water users, ranging from individual farmers and the Elks
Lodge to BHP Billiton and PNM. We have also served as a founding member
of the San Juan River Recovery Implementation Program to protect
endangered species while water development is pursued.
Most recently, we have stepped up to the plate to offer to
negotiate a water lease, or subcontract, to the City of Gallup to
provide their water supply for the Navajo-Gallup Water Supply Project
that would otherwise be unavailable. The water rights that would be the
subject of a subcontract to be negotiated between the Jicarilla Apache
Nation and the City of Gallup are already adjudicated to the Nation.
Consequently, these water rights are already within the recognized
Upper Basin supply in New Mexico. It is important for the Subcommittee
to understand the Nation's pivotal role in the creative solutions that
make the Project, and ultimately the Navajo Nation settlement,
achievable.
We share with the Navajo Nation a common interest in bringing
clean, reliable water service to grossly underserved areas of our
Reservations. The Jicarilla Apache people desire to pursue our way of
life by making their homes on our reservation lands throughout the
basin, and not being crowded into increasingly limited space in Dulce,
New Mexico because of the lack of potable water. To meet this need, we
have worked with the United States Bureau of Reclamation and the other
Project Participants to provide for the connection of a water line at
Counselor, New Mexico from the Cutter Lateral portion of the Project.
We are also separately planning construction of the approximately
eight-mile portion of the additional water line that will be needed
from Counselor to our lands at TeePees on New Mexico State Highway 550
in order to deliver this water to our people, without the assistance of
appropriations authorized under this bill. The water that would be
delivered to us through the Project is water already adjudicated to us
under the 1992 settlement and related Partial Final Decree. We will
receive no additional water rights under this bill.
For these reasons, the Jicarilla Apache Nation has a demonstrated
commitment to and interest in a successful outcome to this legislation
and the associated Navajo-Gallup Water Supply Project. It is imperative
that the legislation recognize and support the Nation's role in the
Project.
In addition to the attached detailed comments that we are providing
to the Subcommittee staff, we share the following thoughts in the
interest of ensuring that key provisions of the legislation are
clarified. We look forward to continuing to work with members of the
Subcommittee and Congress, the State of New Mexico, the Navajo Nation,
the City of Gallup, and the Administration to refine and implement the
legislation.
III. Infrastructure Development on the Jicarilla Apache Reservation--
The Jicarilla Apache Reservation Rural Water System Act, Title
VIII of Public Law 107-331
In addition to the Nation's participation and role in The
Northwestern New Mexico Rural Water Projects Act, we believe it is
relevant and imperative that Congress and the Administration also meet
existing federal statutory obligations in replacing the deficient water
delivery and wastewater system serving the Jicarilla Apache
Reservation. As background, in the 1920's the Federal Government,
through the Bureau of Indian Affairs (BIA), initiated construction of a
public drinking water and wastewater system on the Jicarilla Apache
Reservation. Throughout the years, the BIA haphazardly extended the
system and failed to maintain it, creating severe public health threats
and community development barriers. Based on generations of federal
neglect, the water system infrastructure serving the Jicarilla people
is in severe disrepair and is the source of public health threats to
tribal members.
In 2000, recognizing this looming crisis, Congressman Udall
introduced a bill that Congress passed which directed the Secretary of
the Interior, through the Bureau of Reclamation (BOR), to complete a
feasibility study on this problem. The study recommended extensive
repairs and replacement of the infrastructure. In 2002, Congressman
Udall introduced another bill, which Congress ultimately passed and
President Bush signed into law, entitled The Jicarilla Apache
Reservation Rural Water System Act, Title VIII of Public Law 107-331,
which directed the Secretary to repair and replace the water system
infrastructure on the Jicarilla Reservation, and authorized the
expenditure of $45 Million to do so. Since the law's passage nearly
five years ago, Congress has appropriated $250,000 to fund this
project. During this timeframe, the Administration has not requested
any funds for our project in the President's annual budget submission
to Congress.
The urgency to address the infrastructure needs on our Reservation
has continued so we have been forced to incur substantial debt to
expend more than $20 million in repairs. Completion of this project is
relevant to the legislation at issue now because the continued
operation of the defunct infrastructure on our Reservation presents a
harmful public health threat not only for our people but for downstream
users. In addition, the deficiencies in the current infrastructure are
causing waste of the water resources as there are leakage, seepage and
breakdown problems through the system. Congress has a responsibility to
correct this problem so that the water resources throughout the basin
are secured and managed in a safe and efficient manner for the benefit
of all of the stakeholders, including the project beneficiaries and
partners in H.R. 1970.
IV. Specific Comments on H.R. 1970
With that backdrop, the Jicarilla Apache Nation does not object to
the concept of a top water bank, provided that its implementation does
not adversely affect the Nation's water rights, storage for the Nation,
or costs under our contract for water from the Navajo Reservoir Supply,
and provided also that the beneficiaries of the top water bank pay
their fair share of construction and operation and maintenance costs
associated with Navajo Reservoir.
The provisions concerning shortages should be carefully
reconsidered and redrafted in consultation with us to protect the
Jicarilla Apache Nation's water rights, including entitlement to
delivery in times of shortage, under the Jicarilla Apache Tribe Water
Rights Settlement Act. We believe and expect that it is not Congress'
intent to adversely modify the Nation's rights under our existing
settlement. Indeed, the bill appropriately states that unless expressly
provided, nothing in it modifies, conflicts with, preempts, or
otherwise affects the Jicarilla Apache Tribe Water Rights Settlement
Act (Section 103(1)), page 18 lines 2-4 and page 19 lines 1-2). The
legislation must be crafted to protect the Nation from suffering a
lower priority in time of shortage.
We wish to share a few concerns the Nation has regarding what we
view as unclear language referring to cost share provisions in the
Bill. The Secretary is directed to determine the share ``based on the
ability of the Jicarilla Apache Nation to pay the construction costs of
the Project facilities that are allocable to the Jicarilla Apache
Nation,'' and this share is specified to be at least 25 percent of the
costs so allocable.
We have some concerns with how the portion ``allocable'' to the
Nation will be determined. The Nation's staff have reviewed the items
allocated to us as reflected in the March 2007 Draft Planning Report
and Environmental Impact Statement for the Project (``PR-DEIS''), and
if our understanding is correct, the allocation reflected in that
document is appropriate. The legislation should make clear that a
different allocation will not be imposed on us. While we are not
concerned with the items contemplated to be allocated to us, we are
concerned that the Bureau of Reclamation's cost estimates for these
items are substantially greater than they should be. Notably, the PR-
DEIS states that Reclamation is re-estimating costs and anticipates
providing updated cost estimates through errata sheets to be made
available during the public comment period on the PRDEIS.
To our knowledge, however, no such errata sheets have been made
available and the public comment period ends on June 28, 2007. We are
therefore reserving for further comment the issue of cost estimates in
our comments on the PR-DEIS. To protect the continuing voice of the
Project Participants in all cost determinations associated with the
Project, the legislation should clarify that the construction costs
reimbursable by the Jicarilla Apache Nation shall be reduced by the
amounts that the Nation expends from its own funds or non-federal
sources on pre-construction activities for the Project. The draft
legislation does not effectively define the ``ability to pay''
determination. This provision should specify that ``ability to pay''
will be determined on the basis of the per capita income, median
household income, and poverty rate of the population on the Jicarilla
Apache Reservation. This specificity will ensure that the determination
of ``ability to pay'' reflects the true ability of our people to pay
for the water supply.
The requirement that the Nation should pay a minimum percentage of
25 percent of the construction costs allocable to the Nation is
inappropriate. A proper ability to pay determination based on the
ability of our population will result in a cost share percentage below
25 percent. Indeed, this minimum leaves the Nation unacceptably exposed
to the burden of a cost share far greater than 25 percent that has no
relationship to ability to pay. Notably, the April 2006 study by
Dornbusch Associates entitled ``Social Impacts from the Navajo-Gallup
Water Supply Project'' (Appendix D-IV, page 12, to the PR-DEIS) found
that the Jicarilla Apache people earn median incomes far below the New
Mexico state average.
This requirement casts a shadow over the negotiating process in
providing a leased water supply for the City of Gallup. Without fully
understanding the entire exposure the Nation has in paying for its
portion of the Project, it is extremely difficult to proceed with
substantive negotiations with Gallup and the Navajo Nation in
finalizing a secure water supply for the City. We would like to see in
the bill a provision for establishment of a committee, including a seat
for the Jicarilla Apache Nation, to set and review Project construction
and operation, maintenance and replacement budgets and extraordinary
expenditures.
V. Conclusion
The Jicarilla Apache Nation is pleased to support this historic
legislation and to have a role as a participant in order to help
provide solutions to the pressing water challenges in the region, and
our participation will provide an avenue to provide water to the
Southern part of our Reservation which abuts the Navajo lands and
project area. The Nation has proven time and again to be a responsible
steward of our lands and resources, and we have a strong track record
as a reliable partner when working to address the critical water needs
in the arid Southwest. Therefore, the Nation respectfully requests that
the Subcommittee favorably consider our comments and recommendations as
set forth herein, and further requests support from Congress provide
funding for the Jicarilla Apache Reservation Rural Water System Act, as
completion of this project will enhance and benefit the overall
viability and success of the purposes and projects set forth in H.R.
1970.
[NOTE: ``Detailed Comments on H.R. 1970'' and drawing by Navajo
children on the need for clean water submitted for the record have been
retained in the Committee's official files.]
______
[A statement submitted for the record by Evan Jones, Vice
President, BHP Navajo Coal Company, on H.R. 1970 follows:]
Statement submitted for the record by Evan Jones,
Vice President, BHP Navajo Coal Company, on H.R. 1970
Mr. Chairman and Members of the Committee:
My name is Evan Jones. I am Vice President of BHP Navajo Coal
Company (``BNCC''). BNCC and its affiliate, San Juan Coal Company, own
and operate significant coal mines in the San Juan Basin, New Mexico
adjacent to the San Juan River. One of the mines is located on Navajo
Nation lands to the south of the river (``Navajo Mine'') pursuant to a
federal lease and the other is located on the north side on state land
(``San Juan Mine''). Navajo Mine supports the generation of power at
Four Corners Power Plant (``Four Corners'') which is owned by Arizona
Public Service Company (``APS''), Public Service Company of New Mexico
(``PNM''), the Salt River Project, El Paso Energy, Southern California
Edison and Tucson Electric Power, and operated by APS. The San Juan
Mine supports the generation of power at the San Juan Generating
Station (``SJGS'') owned by PNM, Tucson Electric Power, TriState
Generation and Transmission, Southern California Public Power
Authority, Los Alamos County, Utah Associated Municipal Power Systems,
the City of Anaheim, MSR Public Power Agency, and the City of
Farmington, and operated by PNM. Collectively, Four Corners and SJGS
generate approximately 3700 megawatts of power, supplying power to New
Mexico, Arizona, Colorado and California.
BNCC is the owner of a significant water right from the San Juan
River and related groundwater rights pursuant to New Mexico State
Engineer Permit 2838 (``Permit 2838''). Based on its rights under
Permit 2838, BNCC provides water to its mining operations, supplies the
sole source of water to Four Corners (approximately 25,000 acre-feet
per annum) and approximately one third of the water supply to SJGS
(approximately 8,000 acre-feet per annum).
BNCC supports the efforts of the State, the Navajo Nation and the
federal government to settle the claims of the Nation to the waters of
the San Juan Basin. Settlement of the Navajo Nation's claims in an
equitable manner will provide a great benefit to all water users in the
Basin. In particular settlement of Indian claims, particularly of the
magnitude of the Nation's claims provides the certainty necessary to
enable continued economic development and investment in the San Juan
Basin.
BNCC believes that H.R. 1970 provides an opportunity to settle the
Nation's claims in an equitable fashion that will provide the requisite
certainty and opportunities to encourage and stimulate further economic
development and support existing investment. The legislation as
proposed protects, to a large extent, existing uses in the Basin. The
legislation includes provisions requiring, under certain conditions,
use by the Nation of Navajo Reservoir contract water in times of
shortage to support otherwise senior mainstem irrigation rights,
subordination of the majority of the Navajo's claims to senior rights
on the mainstem to a more junior Navajo Reservoir contract right, and
the creation of a ``top water bank'' in Navajo Reservoir available to
direct flow users such as BNCC. All of these mechanisms are important
pieces of the legislation to allow protection of essential existing
uses such as BNCC's supply of water to its mines and to the power
plants.
Most significantly the settlement allows for marketing of the
Nation's water rights as proposed to be quantified by the legislation.
The availability of the Nation's rights for marketing in the fully
appropriated San Juan Basin will allow for supplemental supplies of
water to BNCC and others in times of shortage, as well as to allow
expansion of existing operations and investments in new endeavors
within the Basin. This opportunity also provides great economic benefit
to the Nation. All of these factors contribute to a fair and equitable
settlement of the Nation's claims, provide certainty to important
existing economic concerns and encourage new investment.
Additionally, the settlement of the Nation's claims provides a
multitude of benefits to the Nation itself including provision of
drinking water to more remote parts of the Navajo Nation through the
Navajo-Gallup Water Supply Project, economic benefit and the certainty
regarding the settlement of its longstanding claims.
In summary, BNCC supports the settlement of the Nation's claims as
generally proposed in H.R. 1970. All water users in the Basin, not just
the Nation, will benefit from the settlement of these claims.
Thank you for the opportunity to present the views of BHP Navajo
Coal Company on this important matter.
______
[A statement submitted for the record by Jeffrey
Kightlinger, General Manager, The Metropolitan Water District
of Southern California, on H.R. 2515 follows:]
Statement submitted for the record by Jeffrey Kightlinger, General
Manager, The Metropolitan Water District of Southern California, on
H.R. 2515
Thank you for the opportunity to submit written testimony regarding
H.R. 2515, the Lower Colorado River Multi-Species Conservation Program
Act. I serve as the General Manager of The Metropolitan Water District
of Southern California (Metropolitan), a cooperative of 26 cities and
agencies serving water to 18 million people in six southern California
counties. Metropolitan imports water from the Colorado River and
northern California to supplement local supplies, and helps its members
to develop increased water conservation, recycling, storage, and other
resource-management programs. As one of the California agencies that
use Colorado River water, Metropolitan is a participant in the Lower
Colorado River Multi-Species Conservation Program (LCR MSCP) and a
supporter of H.R. 2515 to authorize this program.
The LCR MSCP was developed through the cooperation of over fifty
federal and non-federal agencies in Arizona, California and Nevada to
protect endangered and threatened sensitive species, and improve
environmental conditions for numerous other species. The environmental
benefits of the program include creating of over 8,100 acres of
riparian, marsh and backwater habitat, rearing and stocking over 1.2
million endangered fish to bolster local populations, and protecting
existing habitat in the floodplain from destruction. The program
provides scientific research to expand our knowledge of the aquatic and
riparian environment on the Lower Colorado River. The information
gained will be used through adaptive management to ensure that the
program is effective in benefiting species and their habitat.
The LCR MSCP will cost a total of $626 million (in 2003 dollars),
and be implemented over the course of fifty years. To ensure the
flexibility to address changes in conditions on the Lower Colorado
River, 25% of the funding (nearly $175 million) will be used for
scientific research, adaptive management, and remedial measures.
Through careful negotiations over ten years, all the participants have
agreed that the LCR MSCP will be implemented by the Bureau of
Reclamation, with equal matching funds provided by agencies from
Arizona, California, and Nevada.
H.R. 2515 provides authorization of appropriations for the federal
share of LCR MSCP costs and directs the Secretary of the Interior to
manage and implement the program in accordance with the conservation
plan, biological assessment, and biological opinion adopted in
accordance with the Endangered Species Act. In addition, the bill
provides express authority for the Secretary to utilize Colorado River
water for LCR MSCP purposes, which might otherwise be open to legal
challenge.
Metropolitan and the other non-federal participants are committed
to funding one-half of the LCR MSCP by the terms of the Endangered
Species Act (ESA) Section 10 incidental take permits issued for the LCR
MSCP and the program implementing agreements entered into with the
Bureau of Reclamation. The Section 10 permit provides regulatory
assurances to anyone with an approved conservation plan that, as long
as they remain in compliance with the permit terms, they will not be
asked to commit additional funds, or other resources, to remedy
unforeseen circumstances. To ensure that the Section 10 permit
provisions and the non-federal funding commitments are preserved during
the term of the LCR MSCP, H.R. 2515 includes provisions in Section 5
that protect against unintended changes in the legal status of the
program.
H.R. 2515 provides the commitment of Congress to support the
efforts of all the LCR MSCP participants, both federal and non-federal
agencies. The program is important for the unique environment that the
Colorado River creates in the southwestern United States, and for the
economies of the States of Arizona, California, and Nevada.
Metropolitan urges the Subcommittee to approve the bill.
______
[A list of documents retained in the Committee's official
files follows:]
Bureau of Reclamation to Senator Jeff Bingaman,
Letter submitted for the record by The Honorable Grace
Napolitano
Citizens Progressive Alliance, Statement
submitted for the record on H.R. 1970
Department of the Interior to Senator Jeff
Bingaman, Letter submitted for the record by The Honorable
Grace Napolitano
Secretary of the Interior Dirk Kempthorne to
Governor Huntsman of Utah, Letter submitted for the record by
The Honorable Grace Napolitano
Drawings by Navajo children on the need for fresh
water submitted for the record
Senator Jeff Bingaman to Secretary of the
Interior, Dirk Kempthorne, Letter submitted for the record by
The Honorable Grace Napolitano
Senator Jeff Bingaman to Secretary of the
Interior, Gale Norton, Letter submitted for the record by The
Honorable Grace Napolitano
Southwestern Water Conservation District, Letter
to Chairwoman Napolitano submitted for the record by The
Honorable John T. Salazar
------
[A statement submitted for the record by the San Juan
Agricultural Water Users Association, Mike Sullivan, Chairman,
on H.R. 1970 follows:]
Statement submitted for the record by the San Juan Agricultural Water
Users Association, Mike Sullivan, Chairman, on House Bill 1970
Thank you for giving us the opportunity to testify about the
proposed legislation entitled ``Northwestern New Mexico Rural Water
Projects Act.'' If carried out, this legislation would draw water from
the San Juan River (one of the largest tributaries of the Colorado
River) for a pipeline to be built to the Gallup area at a cost of more
than $1 billion in public funds. The legislation would also affect
water rights throughout New Mexico and the entire Colorado River
system.
The San Juan Agricultural Water Users Association represents 36 of
the 38 irrigation ditches in the San Juan river system. Our members
consist of about 15,000 landowners and their families. The members of
our association have water rights from the Echo Ditch Decree (1948) and
appropriations for approximately 35,000 acres of irrigated land with a
farm delivery of over 110,000 acre-feet of water. We are also entitled
to divert approximately 1,000 cfs from the rivers of the Basin. Our
members also have water rights for household, livestock, and other
uses, which have not yet been quantified by the court. The members of
the association have been putting the waters of the San Juan to
beneficial use for more than 100 years. Our ancestors, Anglo, Hispanic,
and Navajo, were the first ones to divert water from the river, long
before New Mexico became a state. Since then, our members have
maintained our community ditches with their own labor and their own
money, through ditch assessments, without government subsidies.
Unfortunately our group cannot afford to send someone to Washington
to testify on this bill. So we are submitting testimony in writing.
Although we are unable to be present with you, we ask that you give
careful attention to the facts which we are outlining, because you will
not hear these facts from anyone else. In our absence, our opponents
will pooh-pooh these facts and our position, but we respectfully
request that you and your staffers conduct an independent investigation
of the points we outline here. Any objective inquiry will demonstrate
that there are serious questions about this bill, which the proponents
are trying to gloss over.
If this legislation is passed in its present form, it will hurt us
and many other people in New Mexico. With all due respect, the proposed
legislation is so fundamentally flawed that it should not be enacted in
its present form. This legislation has been pushed by certain special
interests as a solution to the problems all along the San Juan and
Colorado Rivers, but in reality it will only make those problems worse.
And this legislation as presently written will create new problems for
the entire State of New Mexico, which increasingly depends on the San
Juan River to supply its water.
1. THE LEGISLATION ATTEMPTS TO GIVE ONE-THIRD OF NEW MEXICO'S RIVER
WATER TO A VERY SMALL GROUP--LESS THAN 40,000 PEOPLE--AT THE
EXPENSE OF THE OTHER 1,800,000 CITIZENS WHO LIVE IN NEW MEXICO.
The San Juan River provides 60% of all the surface water in New
Mexico. As a water source for New Mexico, the San Juan River is twice
as big as all the other rivers in the state, combined--the Rio Grande,
Pecos, the Gila, etc. Cities and tribes on the Rio Grande are
increasingly depending on water supplied from the San Juan via the San
Juan-Chama Project, which carries water across the Continental Divide.
Albuquerque is finishing a $275 million project to use San Juan
water, while Santa Fe is spending $145 million. Taos, Espanola, Los
Alamos, San Juan Pueblo, and Belen are also counting on water from the
San Juan River. The proposed settlements of Indian water rights for
Taos Pueblo and Nambe-Pojoaque (the Aamodt case) also are demanding a
share of water from the San Juan-Chama Project. But these communities
may be disappointed, because there is a crisis on the San Juan that
will soon affect the entire state.
This legislation is based on the false assumption that there is
enough water in the Colorado to satisfy the claims of the Navajo tribe
and the other tribes and communities that are competing for water from
the San Juan. This proposed settlement, just like the proposals for
Taos and Aamodt (and the unfulfilled settlement with the Jicarilla
tribe), is based upon wishful thinking, which we can no longer afford
in an era of global warming. The latest estimate by the Bureau of
Reclamation is just another in a long series of unrealistic
hydrological estimates of the amount of water that will be available
for all uses in New Mexico. The sheer size of this proposed water deal
makes it a threat to the rest of the state. If enacted in its present
form, the statute would give a grossly unfair share to a very small
group of people.
The ostensible purpose of this legislation is to settle a water
rights claim for the portion of the Navajo reservation that lies within
New Mexico. According to the 2000 census, there are only 44,636 persons
who live on the reservation in New Mexico. U.S. Census Bureau, New
Mexico--American Indian Area, GCT-PH1, Population, Housing Units, Area,
and Density, http//factfinder.census.gov. The census figure includes
non-Indians as well as tribal members, so it is almost certain that
there are fewer than 40,000 tribal members living on reservation land
in New Mexico. These are the only persons who would have claims under
the so-called ``Winters Doctrine.'' This group amounts to only 2.5% of
the total population of New Mexico, which is 1,819,046 according to the
2000 census.
The proposed legislation would give one-third of all the surface
water in New Mexico to this very small group. The settlement proposes
to give the tribe rights to 56% of the water in the San Juan River,
which accounts for 60% of the state's stream water. So the settlement
would allocate 33.6% of the state's entire supply to satisfy the claims
of less than 2.5% of the population.
The legislation would give each tribal member much more river
water, per person, than the other citizens of New Mexico. If this draft
legislation were passed and fully implemented, the Navajo tribe would
be entitled to a depletion of 348,550 acre-feet annually from the San
Juan River for the 44,636 tribal members who live on the reservation in
New Mexico. This works out to a depletion of 7.8 acre-feet per capita
for a tribal member living on the reservation in New Mexico. On a per
person basis, this is far more river water than would be left for the
rest of the people who live in New Mexico.
According to the best estimates, which are admittedly imperfect,
New Mexico has about 2.1 million acre-feet annually in stream flow,
after meeting its commitments to other states. New Mexico Water Quality
Control Commission, 2006-2008 State of New Mexico Integrated Clean
Water Act Sec. 303(d)/Sec. 305(b) Report at 4. This means that there is
about 1 acre-foot of river flow available for each person in this
state, on average. To keep some flow in the rivers, the amount of
allowable depletion per person would be considerably less than 1 acre-
foot. Yet the proposed legislation would allocate 7.8 acre-feet of
depletion to each Navajo tribal member on the reservation in New
Mexico. This is completely unfair to all the rest of the citizens of
New Mexico. The legislation advances the special interests of a very
small group, while it damages the long-term future of the entire state.
We request that your staff and the OSE prepare estimates of the per
capita water amounts that would be allocated by the proposed
settlements in New Mexico, and compare them to the per person amounts
that would be left to the rest of the population in this state. These
analyses will show that this settlement gives an unfair amount of water
to one very small segment of the state's population, at the expense of
the rest of the population.
As a matter of sound public policy and water planning, New Mexico's
scarce river water should be shared equitably by all of the citizens in
the state, so that all citizens have a roughly equal per capita share,
whether they are tribal members or not. We support a fair share for
everyone, but this legislation does not do this.
2. THIS LEGISLATION WILL IMPAIR THE WATER SUPPLIES OF LOCAL RESIDENTS
WHO ALREADY DEPEND ON THE SAN JUAN RIVER.
To make room for the proposed Navajo settlement, this legislation
squeezes the non-Indian users of the San Juan River. It would leave
only 16% of the river to the local people who have actually used the
river for more than a century. Under New Mexico's Constitution and
water laws, those who have actually put the water to beneficial use
have priority, but the settlement tries to push these rights aside.
Here is the allocation proposed by the supporters of this bill:
[GRAPHIC] [TIFF OMITTED] T7012.001
.epsThe situation for local residents is even worse than these
figures show. First, the tribal claims would be given a retroactive
higher priority than many local users, even though local people put the
water to actual beneficial use, in accordance with New Mexico law,
while the tribes have never used most of the water allocated to them.
Second, this legislation gives the Navajo Nation control of the entire
river, from Navajo Lake at the top, to Shiprock at the bottom.
Third, to make this settlement fit, the OSE is trying to reduce our
members' water rights under the 1948 Echo Ditch Decree. In the ongoing
San Juan adjudication, the OSE is falsely claiming that our members
have abandoned large parts of their water rights under the Echo Ditch
Decree. To make this legislation look feasible, the projections by the
OSE wrongly assume that non-Indians are only using about half of their
Echo Ditch rights, so that non-Indian uses will be reduced from 16% to
about 8%. To accomplish this, the OSE, the tribes, the United States,
and the power plants are all litigating against our members, to cut
back on our vested water rights.
According to one set of projections by the State Engineer's staff,
the result will be a reduction of 40% in water use on the Upper San
Juan River, a 36% reduction to ditches on the Animas River, and a
reduction of 58% to ditches on the La Plata River. (The OSE now claims
that these projections are no longer operative, because the OSE and the
BOR keep changing their numbers to make them fit.) These reductions
would ruin many water users who have depended on this water, and
actually used it for more than a century, in order to give the water to
new users in the Gallup-Window Rock area, who have never depended upon
or used water from the San Juan.
The legislation does not solve the problems associated with the
Hogback-Cudei Project and the Fruitland-Cambridge Project. These
projects draw water at the downstream end of the San Juan River in New
Mexico, so they provide no return flow which can be used in the state.
The legislation authorizes the diversion of more water than will be in
the river on many occasions.
The Richardson settlement provides for the release of up to 12,000
acre-feet per year from Navajo Dam for use by the tribe for irrigation
in the Hogback-Shiprock area. This provision is inadequate and
ineffective: the maximum amount is 12,000 acre-feet in any one year,
but this amount could be depleted in two or three weeks under really
dry conditions. If the shortage in the river is 500 cfs, the water will
be gone in about 3 weeks. To have an adequate buffer, there needs to be
at least a 65-day supply for both Indian and non-Indian users. As
proposed in this legislation, the 12,000 acre-feet is only for tribal
users, so it does not increase the water that can be used by non-
Indians. And in dry conditions it may still be necessary to place calls
on upstream users in order to get this water to the Hogback-Shiprock
area at the low end of the river. Under this legislation the tribe will
effectively control both ends of the river--Navajo Dam at one end and
Shiprock at the other.
3. THIS LEGISLATION CONTINUES A PATTERN OF UNREALISTIC PIECEMEAL
SETTLEMENTS WITH INDIAN TRIBES, WHICH WILL MAKE IT IMPOSSIBLE
FOR NEW MEXICO TO FORMULATE A COHERENT WATER POLICY.
Unfortunately, New Mexico does not yet have a coherent and
comprehensive master plan for the state's water resources. For example,
the major rivers have not been fully adjudicated by the courts.
Furthermore, there are 19 Indian pueblos, 3 tribes, and 3 Navajo bands
in New Mexico. Tribal Map, New Mexico Indian Affairs Department,
www.iad.state.nm.us. Most of their water rights have not been settled
or adjudicated. Passage of this legislation would make it virtually
impossible for the state to develop a realistic long-term plan.
Throughout this process, we have asked some very basic questions,
but no one has been able (or willing) to answer them. Some of the basic
questions are:
(a) How much stream water does New Mexico have?
(b) After allowing for interstate obligations, rainfall
variations, and climate trends, how much river water can be diverted
for use within New Mexico?
(c) How much water can New Mexico consume, while still leaving an
adequate flow in our rivers?
Obviously, one cannot devise a water plan for New Mexico without
some idea of the overall water resources available in the state. But
the OSE and the ISC say they have no idea of the aggregate water supply
and demand.
At the request of Senator Bingaman, the OSE and the ISC met with us
on March 28, 2007, in Farmington. The purpose of this meeting was to
give the state's technical experts an opportunity to answer these very
basic questions. When we asked these questions, the OSE and ISC
representatives said that they had absolutely no idea of the amount of
water that might be available for use in New Mexico, not even a
ballpark estimate. We repeatedly asked them to give us some idea of the
water resources that might be available to the state, recognizing that
such estimates are quite imperfect. The OSE/ISC said, repeatedly, that
it had no idea whatsoever. The ISC representatives said that New Mexico
was currently in compliance with its compact obligations, but the ISC
had no idea of how much water would be left after those obligations
were met, not even a range of figures from dry years to wet years.
We find this hard to believe. If the OSE and the ISC have no idea
of the aggregate water resources of the state, then they are not doing
their job. The first step in any long-term water plan is to use the
best available and most current data to estimate future water flows, so
the state can learn to live within them. Neither the state nor the
federal government should make any long-term commitments until these
rudimentary questions have been addressed and answered. 1
---------------------------------------------------------------------------
\1\ In our dealings with the OSE and the ISC, we have observed that
they are reluctant to provide data and offer their best professional
estimates about the proposed Indian settlements, because those
purported settlements have been widely touted by Governor Richardson.
Governor Richardson is running for president, and we believe that the
OSE and ISC personnel understand that they must stick closely to the
script for the Richardson presidential campaign, for fear that their
best information and estimates might undermine the campaign. Of course,
the personnel at OSE and ISC will deny this, but we have observed first
hand that they are operating under political orders from candidate
Richardson.
---------------------------------------------------------------------------
The legislation conflicts with other proposed water settlements
that depend on water from the San Juan River, such as the proposed
Aamodt and Taos settlements, and the incomplete Jicarilla settlement.
There simply is not enough money, or water, to carry out all of these
settlements proposed by Governor Richardson's administration. For
example, both Aamodt and Taos are conditioned upon the supply of more
water from the San Juan River via the San Juan-Chama project. And both
settlements demand unrealistic amounts of funding by the federal
government.
Under the Jicarilla settlement, the federal government is obligated
to buy back 11,000 acre-feet of private water rights beginning in 2000,
if requested by the State of New Mexico. For unexplained reasons, the
state has not yet made this request 2 but this is likely to
occur as pressure on the river increases. In short, the federal
government already has outstanding commitments for the Jicarilla
settlement, and it should fulfill its existing commitments first.
---------------------------------------------------------------------------
\2\ We believe that the OSE and the ISC are under political
pressure from the Richardson administration not to make this request,
because it would puncture the pretense that there is enough water for
all the settlements that Governor Richardson has proposed.
---------------------------------------------------------------------------
The Jicarilla settlement allots 32,000 acre-feet of depletion to
the Jicarilla Apache Tribe. Jicarilla Apache Tribe Water Rights
Settlement Act of 1992, Pub. L. No. 102-441. According to the 2000
Census, there are 2,755 persons (tribal and non-tribal) living on the
Jicarilla reservation. So the Jicarilla settlement allocates an average
of roughly 11.6 acre-feet to each resident on the reservation, which is
more than 10 times the average amount available to each resident in the
rest of the state. Also, the Jicarilla reservation has substantial
water sources on the reservation itself. This settlement is grossly
unfair and inequitable to the rest of the state. It illustrates the
damage that can be done by water settlements that are negotiated in
secret by special interests and lobbyists, without public scrutiny and
without regard to the interests of the entire state as a whole.
When the Jicarilla allocation is added to the 33.6% share proposed
by this legislation, the Jicarillas and the Navajos would control more
than 40% of New Mexico's entire stream flow. New Mexico is already
short on water, and passage of this legislation would allow these two
tribes to corner the market of New Mexico's water. Once these two
tribes control all this water, they will try to lease it to non-Indian
users in the downstream states in the Lower Basin. To do this, the
tribes merely have to let the water flow down the San Juan River to
Lake Meade, which is right next to Las Vegas. 3
---------------------------------------------------------------------------
\3\ Candidate Richardson is campaigning hard for the Nevada
caucuses in January 2008. As part of his campaign, Richardson has
pledged to find ways to get Nevada more water from the Colorado River.
Richardson's settlement is one way to get more water to Nevada--at New
Mexico's expense.
---------------------------------------------------------------------------
To cover up the fact that the tribe will export New Mexico's water
to other states, Governor Richardson and the tribe have agreed to
mislead the public. In their settlement agreement, Richardson and the
tribe added a provision that the tribe must apply to the New Mexico
State Engineer for a permit to export water for use in other states.
This provision is carefully calculated to create the false impression
that New Mexico can prevent the Navajo tribe from selling New Mexico
water to other states. Pointing to this provision, Richardson and his
appointees have been quick to claim that they have protected New
Mexico's interests by preventing the water from being exported. For
example, in an Op-Ed article in The Albuquerque Journal on April 8,
2007, New Mexico State Engineer John D'Antonio claimed that the tribe
has agreed not to export water without the approval of the OSE and the
ISC. See attached Exhibit 7. The supporters of this bill repeated this
deception in The Albuquerque Journal on June 24, 2007.
These assertions are false, and the Richardson administration knows
that they are false. The Navajo tribe has not agreed that it needs
permission from the State of New Mexico in order to export water. At
our meeting on March 28, 2007, we asked the OSE and the ISC about this
provision. We asked them what would happen if the tribe applies for
permission to export water, and the OSE denies them a permit. They
admitted that, under existing case law, New Mexico cannot prevent the
tribe from exporting water to another state. And the tribe also takes
the position that, once the tribe gets the water, the state cannot
prohibit the tribe from selling or leasing the water to other states.
In the proposed partial final decree, there is a provision that
purports to deal with the export of water, but the provision is
unintelligible and self-contradictory: it allows the tribe to litigate
its right to export water from New Mexico. Furthermore, the partial
final decree will never be entered, because the pre-conditions laid
down by the tribe will never be met.
In other words, Richardson and the tribe have tried to create the
illusion that the tribe will not export water, but this is legal
double-talk. Perhaps the tribe has agreed to apply for a permit to
export water, but if it does not get one, it will still export the
water. So the Richardson administration is just blowing smoke to cover
up the tribe's plans to sell New Mexico's water to Lower Basin states--
like Nevada. If the tribe is allowed to get all this water, it will
export most of it.
Therefore, this bill is not just another public works project. This
legislation poses a broad question of public policy that must be
addressed to the collective wisdom of Congress: Is it the policy of
Congress to give 40% of a state's entire water supply to a very small
group of Native Americans, so that they can sell the water to other
states?
4. THE PROPOSED LEGISLATION DAMAGES THE ENVIRONMENT BY DRAWING MORE
WATER OUT OF THE COLORADO RIVER SYSTEM, WHICH IS ALREADY
OVERDRAWN.
This legislation will inflict severe environmental damage on the
Colorado River, because the projects will draw down the river to pump
water far away, where there is no return flow to the river, and no
recharge to the soils in the river bed. When our members irrigate their
lands along the river, a lot of the water is returned to the river by
return flows and recharge. This is not the case with NAPI, or with the
proposed pipelines.
The San Juan is one of the biggest tributaries of the Colorado
River, which is already overdrawn. When New Mexico signed the Colorado
River Compact in 1922, it was assumed that the water flow in the
Colorado was 16.4 million acre-feet annually. But in 2007, a report
from the National Academy of Sciences indicates the flow may be only 13
million acre-feet and dropping, due to global warming. Colorado River
Basin Water Management: Evaluating and Adjusting to Hydroclimatic
Variability, Executive Summary, www.nap.edu, attached as Exhibit 1.
When the BOR and the OSE offer their opinions that there is enough
water, their opinions are not based on the best and most current
scientific data from independent studies.
From an environmental point of view, this legislation simply
repeats the mistakes of the Animas - La Plata project. The government
told our members that we would benefit from that project, but the
project has been a disaster.
5. THE PROPOSED LEGISLATION WILL GENERATE MORE LITIGATION.
This legislation will not accomplish its objectives, which is to
settle the competing claims to the San Juan River. Instead, passage of
this legislation in its present form will simply produce more
litigation. The legislation is not a comprehensive settlement, because
it has not been agreed to by most of the people who have water rights
in the San Juan.
These water rights are now being adjudicated in the San Juan
Adjudication lawsuit, which is more than 30 years old. San Juan River
Basin Adjudication, State of New Mexico, ex rel. The State Engineer v.
The United States of America, et al. v. The Jicarilla Apache Tribe and
the Navajo Nation, Eleventh J.D. Dist., No. D-1116-CV-1975-184 (Mar.
12, 1975). If this bill passes, it will just prolong the lawsuit for
many more years.
For example, the proposed settlement does not resolve the other
claims of the federal government, or of the Ute Mountain tribe.
It is also our understanding that the legislation does not even
settle all of the Navajo water claims in New Mexico, such as the claims
for the Rajah Band, south of Gallup, in the basin of the Little
Colorado River. We do not know whether it settles the claim of the
To'hajiilee Band, near Albuquerque, in the Rio Grande Basin.
Moreover, this legislation will not even settle the claims of the
Navajo tribe because the purported settlement is a ``conditional
settlement.'' The settlement is not effective until future conditions
are performed, but it is unlikely that these conditions will be met.
Congress has not fully funded the projects that must be completed
before the settlement becomes final and binding. Nor has the State of
New Mexico. It is highly unlikely that the federal and state
governments will provide the money to complete these projects, so the
purported settlement will never become final and binding on the Navajo
tribe. However, in the meantime, the tribe will claim huge amounts of
water for projects which will never be completed. Then the tribe will
attempt to lease this water to non-Indian users off the reservation, a
use that is contrary to the Winters line of cases. So this legislation
will create a whole new set of legal controversies that will have to be
litigated, on top of all of the difficult legal questions which already
exist.
6. THE PROPOSED SETTLEMENT LEAVES NO WATER RIGHTS FOR THE LANDS OF THE
NEW MEXICO STATE LAND OFFICE, WHICH CONGRESS RESERVED AS AN
ENDOWMENT FOR NEW MEXICO'S PUBLIC SCHOOLS AND COLLEGES.
This unsettled issue is currently being litigated in the San Juan
River Basin Adjudication. The District Court has ruled against the New
Mexico State Land Office, and the case is currently being appealed to
the New Mexico Court of Appeals. It is likely that the case will
ultimately wind up in the New Mexico Supreme Court, and quite possibly
in the United States Supreme Court, because it presents a question of
overriding importance to New Mexico, Arizona, and the other Western
states. The question is this: When Congress reserved sections of land
as a permanent endowment for New Mexico's schools and colleges, did it
impliedly reserve the water necessary to develop those lands?
The San Juan Agricultural Water Users Association does not take any
position on this question. However, it seems inconsistent for the
Richardson administration and Congress to say that the federal
government impliedly reserved water for Indian tribes but not for
public schools.
7. THE PROJECTIONS BY BOR AND OSE ARE FAULTY, BECAUSE THEY DO NOT
ALLOW FOR ANY OTHER RESERVED WATER RIGHTS THAT THE UNITED
STATES MIGHT CLAIM.
The projections by the BOR and the OSE are incomplete, because they
do not make any allowance for any other federal reserved rights. It is
certain that the United States will assert claims for other reserved
water rights for Indian tribes besides the Navajos. It is also possible
that the United States will assert reserve rights for national forests,
especially as global warming increases and the national forests dry up.
The United States might also claim reserved water rights for other
purposes.
Before this legislation proceeds any further, we request this
committee to ask the following questions: Is the United States going to
claim any other reserved rights against the Colorado River system? Is
the United States going to claim any reserved rights for national
forests, or national parks, or national monuments, or for any other
purposes? How much is the United States claiming, or going to claim, on
behalf of other Indian tribes in the Colorado basin?
If the answer to any of these questions is ``yes,'' then these
demands against the Colorado River need to be quantified and factored
into the projections by the BOR and the OSE. These projections do not
make adequate allowance for these claims. In finding that water
supplies are likely to be adequate, the projections incorrectly assume
that there will be no other claims for reserved water rights.
This question needs to be asked and answered for the entire
Colorado River basin, not merely for New Mexico, because a federal
reservation of water anywhere along the river will affect every other
state. A federal reservation of water, when used, reduces the amount of
flow in the river, so it creates shortages that must be adjusted in
some fashion. However, the Colorado River compacts are silent on the
issue of Indian water rights.
It makes no sense for one agency of the federal government--the
BOR--to opine that water supplies will be adequate, without making any
allowance for the reserved water rights that will be claimed by other
federal agencies.
8. THE PROPOSED SETTLEMENT IS NOT SUPPORTED BY A PIA STUDY.
This legislation creates a dangerous precedent, because it does not
require a study of practicably irrigable acreage (PIA) to substantiate
the Navajo water claims. Under the Winters line of cases, and as a
matter of sound public policy, a tribe cannot be awarded water for
irrigation of reservation lands unless it can demonstrate that the
acreage can be practicably irrigated, that is that irrigation is
economically viable.
This legislation sidesteps this requirement, because there has been
no study analyzing the amount of acreage on the Navajo reservation in
New Mexico that is viable for irrigation, and no analysis of the amount
of water that would be necessary to irrigate those acres. Before this
legislation precedes any further, an independent PIA must be conducted.
The New Mexico OSE has stated that the Navajo tribe insisted in its
negotiations that no PIA would be performed. In fact, the Navajo tribe
is trying to avoid a PIA because it will show that the reservation
includes very little practicably irrigable acreage--acreage down in the
river bottom around Shiprock.
From decades of personal experience, the San Juan Agricultural
Water Users Association can testify that irrigation is a very hard way
to make a living, even on the sheltered land down in the river valley.
Up on the mesa lands, almost 1,000 feet above the river, irrigation is
completely uneconomic, due to high winds, high evaporation rates, and
short growing seasons. The experience of Navajo Agricultural Products
Industries proves that irrigation is not economically viable. NAPI has
been attempting to grow viable crops by irrigation on the mesa top,
using pivot sprinklers and water supplied by the Navajo Indian
Irrigation Project. Unfortunately, NAPI has been a complete financial
failure, even though it is supplied with water at no cost from Navajo
Dam, and even though NAPI is heavily subsidized by the federal
government and the Navajo tribe. NAPI loses large amounts of money
every year. The revenues from NAPI do not even cover its annual
operating costs, much less all of the cost of water and the huge
capital costs for Navajo Dam and the Navajo irrigation canal.
9. THE NAVAJO TRIBE HAS ALREADY RECEIVED MORE WATER THAN IT IS
ENTITLED TO UNDER THE WINTERS LINE OF CASES.
This legislation proposes to grant an additional 20,780 acre feet
of water to the Navajo tribe in settlement of their claims under the
so-called ``Winters Doctrine.'' However, the Navajo tribe is not
entitled to any more water from the San Juan River, because it
relinquished its claims as part of the creation of the Navajo Indian
Irrigation Project.
On May 20, 1960, Paul Jones, the chairman of the Navajo Tribal
Council appeared before Congress, accompanied by his Washington
attorney. The Navajo chairman testified in favor of the Navajo Indian
Irrigation Project, which was ultimately enacted in 1962 as part of
Public Law 87-483. In his prepared testimony, he described the Navajo
Indian Irrigation Project and made the following statement:
All water uses from Navajo Dam would have equal priority. The
Navajo Tribe has consented to this, and relinquished its right
under the Winters doctrine for the water necessary to irrigate
the Navajo Indian irrigation project, in order to provide a
practicable plan for comprehensive development of the resources
and industrial potential of the San Juan Basin.
San Juan Reclamation Project and Navajo Indian Irrigation Project:
Hearing on H.R. 2352, H.R. 2494, and S. 72 Before the House
Subcommittee on Irrigation and Reclamation of the Committee on Interior
and Insular Affairs, 86th Cong. 64 (1960) (statement of Paul Jones,
Chairman, Navajo Tribal Council), attached as Exhibit 2.
The next year, the executive secretary of the tribe reiterated to
Congress that the tribe was accepting the Navajo Indian Irrigation
Project in satisfaction of its claims for water under the ``Winters
Doctrine.'' San Juan Reclamation Project and Navajo Indian Irrigation
Project: Hearing on H.R. 2552, H.R. 6541, and S. 107 Before the House
Subcommittee on Irrigation and Reclamation of the Committee on Interior
and Insular Affairs, 87th Cong. 33 (1961) (statement of J. Maurice
McCabe, Executive Secretary, Navajo Tribal Council), attached as
Exhibit 3.
Therefore, the tribe's claim for additional water under the
``Winters Doctrine'' is without merit. The tribe accepted an allocation
of water for NIIP in satisfaction of its water claims, as part of the
compromises that were necessary to pass the 1962 legislation. The
tribe's current claims for water are inconsistent with its agreement
almost 50 years ago. Instead of demanding more water, the tribe should
honor the agreement it made to get water from NIIP.
Furthermore, the Navajo tribe has already received far more water
than it would be entitled to under the Winters line of cases. The cases
hold that tribes are entitled to water for irrigation only for
practicable irrigated acreage within the boundaries of the reservation,
that is, for irrigation that is economically viable. The cases also
hold that tribes are not entitled to water for projects that are
economically wasteful.
In every instance, an analysis of Winters claims necessarily
depends upon the specific facts for each reservation, including its
geography, its climate, and economic factors such as distance from
major markets. In the case of the Navajo reservation, there is very
little practicably irrigatable acreage in New Mexico. The original
Navajo reservation was established by Congress as a reservation for a
pastoral tribe, predominantly dependent on sheep herding. Congress did
not impliedly reserve water from the San Juan River for irrigation of
the original Navajo reservation, because anyone familiar with the
terrain knows almost none of the reservation's acreage could have been
viably irrigated from the San Juan River. Most of the land is too far
from the river, too high, too dry, too hot, too cold, and too windy.
Within the boundaries of the original reservation, there may be a few
small plots that are suitable for irrigation from local water sources,
but otherwise irrigation there is not even close to meeting any
standards for economic viability.
Some of the later additions to the reservation included land along
the San Juan River, and some of this land is economically viable for
irrigation. The rest of the reservation in New Mexico is not
economically viable for irrigation, because it is too high and too dry.
This fact is demonstrated by the complete failure of the Navajo
Agricultural Products Industries. The Navajo Indian Irrigation Project
was supposed to provide ``1,120 family farms for Navajo Indians. It
will give a livelihood in related service activities to another 2,240
families, thus providing a decent living for at least 12,000 Navajo
Indians. These figures have been supplied by the Bureau of Indian
Affairs. Actually, I feel they are excessively conservative.''
Testimony of Navajo Tribal Chairman Paul Jones on May 20, 1960, Exhibit
2, at 65.
The federal government built Navajo Dam in the 1950s and 1960s,
during the happy days when everybody thought that the Colorado River
would never run out of water. Navajo Dam supplies huge amounts of water
to the Navajo Agricultural Products Industry (NAPI), which grows crops
with sprinkler irrigation on the windy high desert, almost 1,000 feet
above the river. Much of this water is wasted, because NAPI ``has been
a huge financial failure,'' as the Albuquerque Journal reported in a
1999 news article. This ``Navajo farm project struggles financially
despite millions of dollars in government funding.'' Even though NAPI
loses money almost every year, the Journal also reported that the
Navajo tribe wants to expand this money-losing operation in order to
protect its water claims. ``When more acreage is farmed, the project
uses more water. If the tribe doesn't use the water, it is in danger of
losing its right to it.'' Since this article was written, NAPI
continues to lose money for the tribe and taxpayers. And despite all
the money and water that has been showered on the project, NAPI employs
only a few tribal members.
This is an absurd situation, where the tribe feels it must waste
water to protect its rights. We believe that the present problem can be
solved if the tribe is allowed to make better use of the water it now
wastes on NAPI. The San Juan Agricultural Water Users Association is
willing to work with the tribe, the OSE, and Members of Congress to
come up with a solution that allows the tribe to put this water to
better use than trying to grow crops on the high mesa. The Navajo
Gallup Pipeline might be one of these uses.
Proponents of this legislation contend that this legislation is a
fair compromise because they claim that the so-called ``Winters
Doctrine'' would otherwise entitle New Mexico's Indian tribes to
virtually all of New Mexico's river water in the San Juan River, with a
priority over all non-Indian uses. This is a gross misconception and
exaggeration of the Winters line of cases.
In 1907, the Supreme Court ruled that when Congress established the
Fort Belknap Reservation on the Milk River in Montana, Congress
impliedly reserved some water to fulfill the basic purposes of the
reservation, even though Congress said nothing about water rights in
the act which created the reservation. The Winters decision might be a
reasonable judicial extrapolation of congressional intent, for a
particular reservation, but not for others.
The proponents of this legislation are asserting an exaggerated and
self-serving version of the ``Winters Doctrine.'' The legislation
tacitly and wrongly assumes that the ``Winters Doctrine'' would give
Indian tribes a priority over almost all non-Indian uses for whatever
water the tribes could use for any purpose at any time after the
reservation was established. The logic of this ``pseudo-Winters''
doctrine runs as follows:
When Congress established Indian reservations in this area in the
19th century, they impliedly reserved all the water that might be used,
even though the Indians were using little, if any, river water at the
time. Even though the water would not be used until indefinite times in
the future, the priority of all those future uses would date back to
the establishment of the reservation.
The problem with this ``pseudo-Winters'' doctrine is that it gives
tribes a retroactive priority over all non-Indian settlers, taking
water away from the settlers that have actually used and relied upon
water from these rivers for more than a century. This is a bizarre
misinterpretation of the Winters line of cases. This pseudo-Winters
doctrine is the creation of a small group of lawyers, not Congress.
Congress never intended such a result. When Congress opened the West to
settlement, it intended the settlers to have permanent water rights,
protected like other property rights. When Congress encouraged settlers
to move West and develop the land, Congress certainly did not intend to
confiscate the settlers' water, without compensation, after the
settlers had toiled on the land for a century and a half. Yet this is
the result of the pseudo-Winters doctrine that has been invented by a
small group of water lawyers acting as advocates for tribal interests.
If Congress accepts this misinterpretation of the Winters line of cases
by passing this legislation, it would be ratifying the concept that
Indian tribes have priority rights to all the waters in the Colorado
River system, the Rio Grande, and most other major river systems in the
West. In short, this misinterpretation of Winters takes away the waters
that our Anglo and Hispanic predecessors have relied upon since they
settled in this region.
10. THE WATER WHICH THE FEDERAL GOVERNMENT PROVIDES TO THE NAVAJO
TRIBE CANNOT BE CHARGED TO NEW MEXICO'S SHARE UNDER THE
COLORADO RIVER COMPACTS.
The State of New Mexico has no legal obligation to provide water to
Indian tribes, so it cannot be charged with the water that is supplied
to the Navajos. That water is the responsibility of the federal
government, not the state. So the water provided to the tribe in
settlement of their water claims must be charged to the federal
government, not to New Mexico's share of the Colorado River under the
various compacts.
The compacts do not deal with Indian water rights, except to say
that they are the responsibility of the federal government. Article VII
of the Colorado River compact states that ``Nothing in this compact
shall be construed as affecting the obligations of the United States of
America to Indian tribes.'' Article XIX of the Upper Colorado River
Basin Compact states that ``Nothing in this compact shall be construed
as: (a) affecting the obligations of the United States of America to
Indian tribes.'' NMSA 1978, Sec. 72-15-26.
Furthermore, it is not clear how this legislation relates to the
settlement of Navajo water claims in Arizona and Utah. Although this
legislation is touted as a settlement, it appears that it does not
settle the tribe's claims for Colorado River water in Arizona, where
the majority of tribal members live, or in Utah. Under the Colorado
River Compact, Arizona is a lower basin state, while Utah and New
Mexico are upper basin states. If there is to be a settlement of Navajo
water claims, it should be a comprehensive settlement of all Navajo
claims at once. And any settlement must specify how these claims will
be treated under the various compacts affecting the Colorado River
system. Any comprehensive settlement must also specify how the federal
government is going to obtain the water it needs to settle its
obligations (if any) to Indian tribes.
11. THE GOVERNOR DOES NOT HAVE THE AUTHORITY TO SIGN AWAY WATER THAT
BELONGS TO THE PUBLIC, NOT THE STATE.
Although Governor Richardson has signed a proposed settlement with
the Navajo tribe, it is doubtful that he has unilateral authority to
sign away water that belongs to the public, not the State of New
Mexico. Article XVI, Sec. 2 of the New Mexico Constitution provides
that ``the unappropriated water of every natural stream, perennial or
torrential, within the state of New Mexico, is hereby declared to
belong to the public and to be subject to appropriation for beneficial
use, in accordance with the laws of the state. Priority of
appropriation shall give the better right.'' Congress approved this and
the other articles of the New Mexico Constitution as part of the
process by which New Mexico was admitted to the Union in 1912.
NMSA 1978, Sec. 72-1-1 says that ``All natural waters flowing in
streams...within the limits of the state of New Mexico, belong to the
public and are subject to appropriation for beneficial use.''
Therefore, the water in the San Juan belongs to the citizens who use
it, not to the State of New Mexico. So how could the Governor have the
authority to sign a binding deal that purports to commit water which
the state does not own? Governor Richardson's unilateral attempt to
sign away this water to the Navajo tribe poses serious questions under
the New Mexico Constitution, its statutes, and the takings clause of
the Fifth Amendment.
12. THE PROPOSED PIPELINE WILL NOT SOLVE THE WATER PROBLEMS ON THE
NAVAJO RESERVATION.
The Gallup pipeline would cost more than $1.5 billion to complete,
in current dollars without cost overruns, which are inevitable. As a
preliminary step, Congress and the State of New Mexico should
commission an independent engineering and cost study by experts who
have no vested interest in the project, so that the federal and state
governments do not start a project which they cannot finish at a
reasonable cost. Without an independent analysis, this project
resembles a typical military procurement project: the project boosters
are trying to get Congress to buy into the project by using low-ball
cost estimates.
Even if the Gallup pipeline is built, it will not supply drinking
water to homes on the Navajo reservation. The legislation authorizes,
but does not fund, a main trunk pipeline to Gallup and Window Rock. The
legislation does not include the distribution pipelines that are
necessary to supply water to homes on the reservation, so many tribal
members will still be forced to haul water to their homes even if the
main pipeline is built. A network of pipes to distribute water from the
trunk line is likely to be more expensive than the main pipeline
itself. For the amount of money that would be spent building the main
trunk line, Congress could deliver water to more households and
communities across the reservation by funding local projects to supply
and conserve water. These smaller scale projects would be based on the
development of local ground and surface water, with strict conservation
measures. This alternative approach has several major advantages:
A. It actually delivers water to the households and communities
that need it most.
B. It is cheaper and much more cost-effective.
C. It avoids drawing down the Colorado River.
D. It encourages conservation rather than consumption.
The San Juan Agricultural Water Users Association could support
legislation that provides an adequate supply of drinking water to the
reservation and to the Gallup area, so long as it does not draw more
water from the San Juan, which is already over-committed. This can be
accomplished by a combination of local projects, conservation measures,
and perhaps a pipeline that uses some of the water that currently goes
to NAPI, where it is wasted.
CONCLUSION
In the 1950s, many of our families were removed from their homes
and ranches to make way for Navajo Dam and Navajo Lake. All of us were
told that the project would protect us from floods, and this has turned
out to be true.
But we were also told that the dam would provide us with water in
dry times. This has turned out to be untrue.
We were told that there was plenty of water in the Colorado for
everyone. This has turned out to be untrue.
We were told that the project would satisfy the tribe's water
claims. This has turned out to be untrue.
[NOTE: The attachments referenced above have been retained in the
Committee's official files.]