Congress OKs water settlement empowering tribes
by Shaun McKinnon and Billy House
The Arizona Republic; Nov. 18, 2004

WASHINGTON - Arizona secured a surer but leaner water future Wednesday with final congressional approval of the most far-reaching Indian water settlement in U.S. history.

The settlement, which now goes to President Bush for his signature, would cede to Indian tribes nearly half the Colorado River water originally set aside for Phoenix and Tucson and allow those tribes to lease it back to growing cities for a profit.

The cities would be able to claim a small amount of new water to add to their existing shares of the river. But more importantly, they would now know for certain the size of their long-term water supply, allowing them to plan better for future growth. Left unsettled, the tribal claims could have dragged through the courts for years and cost the state significantly more in money and water.

Arizona's debt to the federal government for building the Central Arizona Project Canal, which moves water from the Colorado, also would be reduced by the water measure. The measure would end a long-standing feud over repayment costs and clear the way for the CAP board to reduce property taxes in Maricopa, Pinal and Pima counties.

Some central Arizona farmers would eventually lose water to satisfy the tribal claims, but it would be a gradual loss. The deal wouldn't take any water from cities or private water companies and wouldn't raise water rates unless cities signed huge tribal leases in the future.

"The word would be 'eureka,' " said Herb Guenther, director of the Arizona Department of Water Resources. "It's knowing where you are and what you have without trying to guess what a court might do. It's a monumental day in Arizona water history."
Indian tribes
The settlement designates for Indian tribes more than 650,000 acre-feet of Colorado River water, 47 percent of the CAP Canal's annual flow. The rest of the water would remain for cities and non-Indian farmers and would easily satisfy existing allocations, leaving some for future growth.

Two tribes won specific allocations in the measure. The Tohono O'odham Nation south of Tucson is set to receive 37,800 acre-feet and the Gila River Indian Community south of Phoenix would receive 155,700 acre-feet. An acre-foot of water is 325,821 gallons, enough to serve one or two average households for one year.

The measure completes a much broader water settlement for the Gila River community, which is poised to control more than 650,000 acre-feet of water drawn from the CAP and the Gila, Salt and Verde rivers. That represents the largest tribal water settlement in U.S. history.

"We've been in this struggle to regain our water rights for almost a century now," said Gila River Gov. Richard Narcia, who was in Washington, D.C., on Wednesday. "Our traditional name translated is 'River People,' and to regain that water is not only something we've been working toward but also a cultural issue for our people."

The community plans to put most of the water to work, restoring farmland left fallow for generations. Narcia said the community plans to lease "a small amount" to Valley cities.

Some of those cities have already begun negotiating the leases, and others have been working with tribal water projects. But the settlement's true value was the certainty it gave the region's water supply.

"This brings certainty to the whole Gila basin, and that is a really important thing in water resources to have certainty," said Kathryn Sorensen, water resources coordinator for Mesa. "It is a way of getting out of horrible, protracted 100-year legal battles over water."

The battles won't end entirely. The Navajo Nation and Hopi Tribe in northern Arizona still want their claims to the Colorado River settled, and those discussions have barely begun. The San Carlos Apache Tribe also has claims remaining.

Not everyone was celebrating Wednesday. Water historian and retired journalist Earl Zarbin has voiced strong opposition to the tribal deal, calling it "a gift to them at the expense of everybody else."

"Why 1 percent of our population should be able to control that much water is beyond reason or comprehension," Zarbin said. "It sets up a mechanism for these reservations to control the future for Arizona's population growth. These Indian tribes are under no compulsion to lease water to the non-Indians. They can either lease or not lease."
Separate settlements
The measure encompasses three settlements: two with Indian communities and a third between Arizona and the federal government. The tribal claims date back nearly two decades and languished for years as scores of interested parties joined in the talks.

Under a 1908 U.S. Supreme Court decision, Indian tribes can claim ancestral water rights and seek enough water to meet demands on their current reservation.

Negotiations over the final deal still took several years and failed several times to make it out of Congress. The U.S. Senate finally approved the package Oct 10. On Wednesday, the measure was adopted by the House, sending it to Bush, who has announced support.

"This legislation offers most everyone something, but not everything to anyone. It represents hard-fought compromise that deserves passage," said Rep. J.D. Hayworth, R-Ariz., the House sponsor of the bill, in urging its passage on the House floor.

All seven of Arizona's other House members were co-sponsors.
Kyl praised
Sen. Jon Kyl, R-Ariz., was praised repeatedly Wednesday for his work in shepherding the bill and keeping negotiations alive despite frequent setbacks.

In a statement, Kyl said that virtually every major water user and provider in central Arizona worked for passage of the measure.

"Looking ahead, this could ultimately be nearly as important to Arizona's future as was the authorization of the Central Arizona Project itself," he said.

The measure actually brings closure to the CAP, authorized more than three decades ago as a way of bringing Colorado River water to Phoenix and Tucson. The federal government spent more than $3.6 billion to build the 336-mile canal, which was finished in 1993, and then demanded that Arizona repay $2.3 billion of the cost.

The CAP board argued that Arizona owed much less and refused to pay the bill. The federal government sued, but Arizona forced a settlement and agreed to pay $1.65 billion, an amount written into law with Wednesday's vote.

CAP General Manager Sid Wilson said settling the dispute will help give a property-tax break to homeowners in Maricopa, Pinal and Pima counties and will also help the CAP plan its future.

"It provides surety for everyone in terms of who has what water and who pays how much," he said. "That's something we need in Arizona."

In all, the Congressional Budget Office has estimated the cost of the legislation's various components would total $445 million through 2014, according to Hayworth's office. Delegate Donna Christensen, D-Virgin Islands, who like Hayworth sits on the House Resources Committee, said from the House floor that although the measure would be expensive, "I am satisfied the benefits will significantly outweigh the costs to taxpayers."

The bill sets aside money to help tribes build needed water infrastructure, with help specifically for the San Carlos Irrigation Project. That project was initiated in the 1930s but never completed.

The measure also would amend the Southern Arizona Water Rights Settlement Act enacted in 1982 to resolve water claims by the Tohono O'odham Nation. The measure would establish water-delivery requirements and construction obligations with regard to the San Xavier Indian Reservation and the Schuk Toak District.

The final provision relates to funding to help complete other negotiations on water issues involving the San Carlos Apache Tribe and the White Mountain Apache Tribe, and Rep. Raul Grijalva, D-Ariz., said the measure "makes it far more likely remaining water disputes can be resolved."

"It has not been easy," Rep. Ed Pastor, D-Ariz., said of the legislation. But he noted that "the entire Arizona delegation believes this is the best possible solution."