Tribal nations, Arizona and over 30 other stakeholders have just days to get a historic water rights settlement through Congress, and they’ll have to get past pushback from Upper Basin states, including Colorado, to do it.
The Northeastern Arizona Indian Water Rights Settlement Act would secure safe, reliable water for thousands of Navajo, Hopi and San Juan Southern Paiute tribal members in northeastern Arizona. It would give the San Juan Southern Paiute Tribe a reservation. It would resolve water rights disputes, and potentially set up new funding streams for tribes. If successful, it would conclude about 60 years of work, advocates say.
But some Congressional representatives have balked at the price tag: $5 billion. State officials have asked for clarity on how water will move across state lines. And Colorado River officials in Colorado, New Mexico, Utah and Wyoming have concerns about how the settlement would allow water from their basin to be used farther downstream.
Congress is set to be adjourned by Friday, and federal lawmakers want to see a consensus from all seven Colorado River Basin states before voting. If that doesn’t happen, advocates would have to restart with a new mix of federal lawmakers next year.
“We’re at the 1-yard line … We’ve got 30 seconds left in the game,” Navajo Nation President Buu Nygren told audience members during a panel Dec. 6 at the Colorado River Water Users Association conference. “We need consensus so that the center can actually hike the ball so that we can win the game.”
Getting the landmark settlement to Congress was a huge undertaking, officials say. More than 30 parties have a stake in the settlement, including the federal government, states, tribal nations, cities, ranches and water districts.
If it passes, it would resolve water rights claims to the Colorado River, Little Colorado River and groundwater resources in Arizona for the three tribes. Tribal and nontribal parties have been in Arizona state court to resolve these rights since 1974.
The San Juan Southern Paiute Tribe would get a 5,400-acre reservation out of the settlement. It is the only federally recognized tribe without a land base, which has placed a barrier between them and funding for basic services, like housing, water and electricity, tribe Vice President Johnny Lehi Jr. said during a hearing held by the U.S. Senate Committee on Indian Affairs Sept. 25.
“Generations of the San Juan Southern Paiute Tribe have come and gone without ever seeing the creation of an exclusive homeland,” Lehi said. “The mental and emotional impact of being a landless, homeless tribe is something I wouldn’t wish upon anyone.”
Are decades of waiting coming to an end?
Addressing unresolved tribal water rights is a key issue in the Colorado River Basin.
Tribal nations in the basin have rights to about 26% of the Colorado River’s average flow of 12.44 million acre-feet per year between 2000 and 2018. Many of these rights are senior, which means they trump other water users when river flows are low.
But for decades, many tribal nations have not been able to put their water to use. Some need costly infrastructure to deliver it to homes, farms and communities. Others are slogging through long court and settlement processes to quantify their water, an important step before it can be put to use.
About a dozen nations had unresolved water rights as of 2021, including the Navajo Nation, Hopi Tribe and San Juan Southern Paiute Tribe.
Through the settlement act, the Navajo Nation would have quantified rights to about 48,300 acre-feet of Colorado River water in Arizona; the Hopi Tribe, about 8,228 acre-feet; and the San Juan Southern Paiute Tribe, about 350 acre-feet.
One acre-foot roughly equals the annual use of two to three homes. About 30% of the homes on the Navajo Nation reservation, which is about the size of West Virginia, do not have access to safe and reliable drinking water.
During the height of the COVID-19 pandemic in 2020, this led to higher death rates for the Nation, in part because people had to gather at water hauling stations to get water, Tom Buschatzke, Arizona’s top water negotiator, said during the Colorado River Water Users Association conference in Las Vegas.
“We hope we can still move something through Congress in the few days that are left. But this is about drinking water, safe water for those tribes,” he said.
What is the $5 billion for?
The funds attached to the potential settlement act would fund projects, like pipelines, pumps and storage facilities, to deliver a reliable water supply to tens of thousands of people in Arizona.
At $5 billion, the federal cost of the settlement is the largest ever for an Indian water rights settlement, although the costs per beneficiary are below average because of the population and land area that could be impacted, according to the Arizona State University Institute for Public Policy.
The Navajo Nation would receive $2.7 billion; Hopi, $508.5 million; and Paiute, $29.8 million. About $1.7 billion was allocated for joint projects.
The price tag — which is still being negotiated — was a concern for some lawmakers, like Sen. Lisa Murkowski, a Republican from Alaska, during the Senate Indian Affairs Committee hearing in September.
But funding infrastructure is a key part of the plan, advocates say, and the initial funding is not always enough.
“We have seen in every water settlement that I’ve been involved in, and it’s quite a few of them in the state of Arizona, that over time, the money they got from Congress is not enough,” Buschatzke said.
In Colorado, the Southern Ute and Ute Mountain Ute Indian tribes have settlements that quantify their water rights in Lake Nighthorse, outside of Durango. But those deals did not include funding to build new delivery infrastructure, and the tribes are still searching for ways to access that water.
What is the holdup?
If approved as is, the settlement would allow the Navajo Nation and Hopi Tribe to lease or exchange their water within Arizona.
They might have a willing customer in the Central Arizona Project, which has low-priority Colorado River water rights that are the first to be cut off under certain shortage conditions.
The leases would provide a new revenue stream for the tribes, which could help address some of the long-term costs of infrastructure projects, Buschatzke said.
“We want to give the Navajo Nation and the Hopi Nation the right, on a voluntary basis, to lease their water as they grow into the use of that water on the reservation,” he said.
The challenge has to do with geography. Arizona and the Navajo Nation stretch into both the Upper Basin and the Lower Basin in the Colorado River Basin. This administrative boundary, put in place in the early 1900s, is used to divide the river’s water.
The leases would allow the Navajo Nation to take its share of water from the Upper Basin, about 44,700 acre-feet, and send it to water users in areas of Arizona that are in the Lower Basin.
Other settlements have allowed water to move from one sub-basin to the other, but it typically involves consensus among the basin states.
Some Upper Basin states are wary of this idea since it could open the door to more transfers of Upper Basin water to the Lower Basin. They do not want the Lower Basin states to find a way to buy out available water supplies upstream.
The states want to make sure the terms of leases comply with Western water law, said Becky Mitchell, the top Colorado River official for Colorado. The states recognize the tribes’ needs and are working hard to come to an agreement, she and other Upper Basin officials said.
The terms of the settlement also have some bearing on ongoing negotiations over how to manage the river’s reservoirs in coming years, said Estevan Lopez, the top Colorado River official for New Mexico.
“We feel it’s imperative that we need to have an actual consensus amongst the states if that’s going to move forward,” Lopez said.
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