Lawyer: Settlement would affirm Diné rights
By Marley Shebala
WINDOW ROCK, Sept. 30, 2010
On Monday, water rights attorney Stanley Pollack, with the Navajo Nation's Department of Justice, described the details of the Northeastern Arizona Indian Water Rights Settlement Agreement.
The tribe would get rights to around 200,000 acre-feet per year, or AFY, of surface water in the Lower Colorado Basin. An acre-foot is the amount of water it would take to cover one acre to a depth of one foot, or 325,851 gallons.
It would also get the right to pump unlimited amounts from two aquifers containing an estimated 800 million acre-feet of groundwater.
This includes 31,000 acre-feet per year from the Central Arizona Project and all the water in the Little Colorado River that has not already been appropriated, about 160,000 AFY.
The agreement also would give the Navajos and Hopis joint management of the Navajo Aquifer, estimated to contain 200 million acre-feet of extremely high quality water. The tribes could pump as much water as they wish from it but pumping for industrial use would be limited to 2,000 acre-feet per year by each tribe, Pollack said.
The Navajos would have unlimited rights to the Coconino Aquifer except for the southwestern corner of the reservation, where the city of Flagstaff owns a nearby "water ranch." Navajo groundwater withdrawals in the protection zone would be limited to 60,000 AFY.
Similar protection zones outside the southern border of the reservation would limit non-Navajo pumping of the C-aquifer, which is estimated to contain 600 million acre-feet of water.
The agreement also would authorize three water development projects to benefit Navajos in Arizona, and resolve a problem with a fourth project.
The Western Navajo Pipeline would take water from Lake Powell - technically part of the Upper Colorado Basin but available to the Navajos under a special provision of the agreement. The $515 million pipeline would provide 10,906 AFY of drinking water to LeChee, Copper Mine, Bodaway-Gap, Cameron and Tuba City. It would also transport 4,048 AFY to the Hopi villages.
The Leupp-Dilkon Regional Groundwater Project would cost $113 million and would provide about 4,800 AFY of C-aquifer water to Leupp, Birdsprings, Tolani Lake, Teesto, Dilkon, Indian Wells, Lower Greasewood and White Cone chapters.
The Ganado Regional Groundwater Project would provide 5,600 AFY of C-Aquifer water to Ganado, Kinlichee, Jeddito, Cornfields, Steamboat, Klagetoh and Wide Ruins. It would cost $65 million.
The agreement also contains a guarantee to benefit the Navajo-Gallup Pipeline Project, providing for the delivery of 6,3411 AFY from the San Juan River.
Pollack said the Northeastern Arizona Indian Water Rights Settlement Agreement would settle the Navajo Nation's lawsuit against the U.S. Interior Department for failing to adequately protect Navajo interests in the Lower Colorado River Basin.
In 1922, Interior approved the Colorado River Compact, which divided the river into the Upper and Lower basins and set the average flow rate as 7.5 million acre-feet per year in each basin.
Rights to the water were then sliced up among the Upper and Lower Colorado Basin states. Lee's Ferry, the dividing line, cuts through the Navajo Nation. This created a problem because the water law prohibits shifting water from one basin to another.
But according to Pollack, the proposed water settlement opens the door for Interior Secretary Ken Salazar to approve moving water from the Upper Basin to benefit communities in the Lower Basin, including Window Rock, Gallup and surrounding Navajo communities, and the chapters that would receive water from the Western Navajo Pipeline.
Taking water from Lake Powell for the Western Navajo Pipeline is much easier than engineering water withdrawal from the steep canyons downstream from Glen Canyon Dam.
The Navajo-Gallup Pipeline is also vexed by geography: It will be supplied by water under the New Mexico-Navajo Water Settlement, which allocates water from the San Juan River, part of the Upper Colorado Basin. However, eight miles north of Gallup is the divide between that river basin and the Little Colorado River Basin, a part of the Lower Basin.
When it comes to the 31,000 acre-feet allocation of CAP water, Pollack said the tribe could sell that water to other users in the Lower Basin, including cities in Arizona, California and Nevada.
Opponents of the settlement contend that the amount of water that would go to the Navajos is piddling in relation to the amount in the river, and as indigenous people, they ought to have rights to millions of acre-feet.
But Pollack said the federal courts have not been friendly to the tribes when it comes to aboriginal water claims.
When Arizona sued California over its right to CAP water, for instance, the Navajo Nation tried twice to intervene and twice was rejected by the U.S. Supreme Court. The court declined on grounds that there was no evidence of irrigable acreage on Navajo land in the Lower Basin, Pollack said.
The Arizona vs. California case eventually resulted in an allocation of 197,500 AFY to an Indian water rights settlement pool from water going to the Central Arizona Project.
Of that amount, The Gila River Indian Community got 102,000 acre-feet, 28,200 went to the Tohono O'odham, and 67,300 remained to settle all other Indian claims. This is where the Navajo Nation is getting its 31,000 acre-feet per year of water from the Lower Colorado, Pollack explained.
The Arizona-California dispute occurred in the 1950s and 1960s, a period when the Supreme Court was "far more inclined" to rule in favor of tribes compared to today, he added.
In 1988, the US Supreme Court came "very close" to overturning the Winters Doctrine, Pollack said, referring the landmark Supreme Court ruling in 1908 that established the tribes' right to enough water to supply a permanent homeland.