Salazar presents new water deal

By Marley Shebala
Navajo Times

WINDOW ROCK, November 21, 2012

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U .S. Secretary of the Interior Ken Salazar has a new water deal for the Little Colorado River and he wants the approval of the Navajo Nation and Hopi Tribe before Jan. 20, 2013.

That's inauguration day for President Barack Obama and the new Congress. It also signals the end of the lame duck Congressional session.

As soon as Salazar gets the approval of the two tribes, he wants to meet with all Arizona parties involved in the settlement and gain their support before Sen. Jon Kyl moves new federal legislation to settle water rights to the Little Colorado River through the lame duck Congress.

At Salazar's invitation, a contingency of Navajo and Hopi elected officials and tribal attorneys traveled to Washington, D.C., to meet with Salazar on Nov. 14 to discuss the proposed settlement.

The Navajo Nation Water Rights Settlement Task Force, which consists of eight Council delegates and a six advisory group members, hand-carried a two-page position statement that called for Navajo water rights claims to be "addressed through a comprehensive approach that maximizes the nation's aboriginal, treaty, and Winters federal reserved water rights and ensures a strong future for the Navajo people by securing water for all users necessary for a Dine' permanent homeland."

The "comprehensive approach" would involve the settlement of water rights to the Little Colorado River Basin in Arizona, the Lower Basin of the Colorado River in Arizona, the Upper Basin of the Colorado River in Arizona, and the Upper Basin of the Colorado River in Utah.

But Salazar's proposal would only involve the Little Colorado River.

That's according to a Nov. 16 letter that Deputy Secretary of the Interior David Hayes sent to Speaker Johnny Naize on behalf of Salazar.

"The (Interior) department appreciates hearing about additional issues raised by both the Navajo Nation and the Hopi Tribe during our meetings," Hayes stated. "However, as we discussed, taking advantage of this unique window of opportunity requires that we collectively focus on core issues."

Salazar's core issues, which are to be incorporated in new federal legislation, included four of the Navajo Nation policy positions.

The four are the elimination of provisions pertaining to the Navajo Generating Station and Peabody Western Coal Co.; allowing for the delivery of 6,411 acre-feet of Central Arizona Project water to the Navajo Reservation; retaining the Secretary of the Interior's authority to take land into trust, and reserving CAP water for a future Lower Colorado River settlement, which would give 22,589 acre-feet of water to the Navajo people and 1,000 acre-feet of water to the Hopis.

The other core issues involve the establishment of "parity" in the Navajo and Hopi claims to the Upper Colorado River Basin, which could mean the removal of Navajo claims or the addition of equivalent provisions for the Hopis; eliminating the waiver of Navajo and Hopi claims to water quality injury; eliminating water and air quality liability for Hopi water transfers to Winslow; expanding the federal monitoring to include Hopi springs that are supplied by non-Navajo Aquifer sources; future discussions by the Navajos, Hopis and federal government to include the protection of springs supplied by non-Navajo Aquifer water in a "future Lower Colorado River water settlement"; the immediate establishment by Salazar of a "federal negotiating team" for Navajo water rights in Utah, and federal consultation with the Navajos and Hopis on sacred sites.

Hayes' letter also identified "issues that the (Interior) department believes cannot be resolved in time for action in this congressional session."

Eight of the nine unresolved issues identified by Salazar were also contained in the Navajo position paper.

They include: the identification of a specific acre foot allocation of Lower Colorado River water for either tribes; the quantification of the Navajo water rights to the mainstream of the Lower Colorado River, which includes Blue Springs and in-stream flow rights; permitting the marketing of Navajo water outside the Navajo Reservation; retaining the ability of the tribes to make priority calls on Lower Colorado River water; federal funding for watershed restoration, conservation and water projects for the washes and tributaries; mandatory funding in settlement legislation; adding the Western Navajo Pipeline back into the settlement, and removing the requirement for tribes to waive the claims of tribal members.

The ninth unresolved issue is reserving Hopi breach of trust claims for mismanagement of non-Navajo Aquifer water supplies located within the Lower Colorado River Basin.

On the matter of the Western Navajo Pipeline, Hayes noted that Salazar's proposed settlement would include funding for a "feasibility study to continue to explore the WNP."

He also emphasized that the removal of the waiver of the claims of tribal members would require a "discussion" between the U.S. Department of Justice and the Navajo Nation Department of Justice.

Hayes added, "(We) expect that resolving the issues could take some time, given that the United States' policy in other settlements has been to require waivers by both tribes and tribal members."

Two other unresolved issues that time would prevent from being in Salazar's proposed settlement focused on the Hopi Tribe.

They were the grandfathering in of existing water rights on all Hopi fee lands and the grandfathering in of pre-existing federally reserved water rights on Hopi trust lands.

Hayes noted that Salazar's proposed settlement already provided the Hopis with existing water rights on all Hopi fee lands.

But on the matter of pre-existing federally reserved water rights on Hopi trust lands, he stated, "The (Interior) department is still discussing this issue with Hopi to fully understand the request and is not certain that there is sufficient time to reach an acceptable resolution."

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