Advocates of a deal to secure reliable water for thousands of tribal members in Arizona raced to win Congressional approval until the final hours of the session in December.
They didn’t make it.
“We just ran out of time to address all the issues,” said Tom Buschatzke, director of the Arizona Department of Water Resources and principal negotiator for the state on Colorado River matters.
The proposed Northeastern Arizona Indian Water Rights Settlement Act aimed to secure water rights for Navajo, Hopi and San Juan Southern Paiute tribal members in northeastern Arizona and to give the San Juan Southern Paiute Tribe a reservation. The $5 billion deal failed because officials from around the Colorado River Basin, including Colorado, couldn’t resolve key questions and concerns in time to call a vote before Congress adjourned.
The bill’s outcome was disappointing, Buschatzke said.
“We made a lot of progress working with the Upper Basin and other Lower Basin states to gain some consensus support for the legislation, but we didn’t quite get all the way there,” he said. “We’re going to keep working on this into the new Congress.”
The deal had widespread support from tribal leaders and state officials to the cities, ranches, water districts and others who have a stake in its outcome. In November, Arizona Gov. Katie Hobbs signed the settlement agreement.
Although other states’ officials in the basin, including Colorado, generally supported the effort to secure water for the tribes, they wanted to know the details of how the water would be accounted for and delivered, and to assess possible impacts to their states.
Officials were working through these and other questions up until the end of the session in an effort to find consensus among all seven basin states.
“Colorado supports reaching a Northeast Arizona settlement that provides sufficient flexibility and elements that work within each Tribal Nation’s unique circumstances and challenges,” Commissioner Becky Mitchell, Colorado’s principal negotiator for Colorado River issues, said in a prepared statement. “Our team has been working hard with the Tribal Nations and other Colorado River Basin states to come to an agreement that would make this a reality.”
Mitchell and her team declined to comment further, citing the ongoing negotiations. The Colorado Office of the Attorney General also declined to comment.
Lingering questions about the settlement
Through the settlement act, the Navajo Nation would have rights to about 48,300 acre-feet of Colorado River water in Arizona; the Hopi Tribe, about 8,228 acre-feet.
One acre-foot roughly equals the annual water use of two to three homes — outside of the reservations. About 30% of the homes on the Navajo Nation reservation do not have clean drinking water in the home.
The tribes would be able to lease water off-reservation in Arizona, which would provide a new revenue stream for the tribes and more water security for other communities.
That could involve using water allocated to the Upper Basin’s “bank account” and using it to meet Lower Basin water demands.
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.
Other settlements have allowed water to move from one sub-basin to the other, but it typically involves consensus among the basin states. The Upper Basin states wanted more details about the terms of the leases, and officials could not reach an agreement before the session ended.
Basin states also wanted to have their say out of principle: When it comes to how basin states share water, the states should be in agreement and have input in the process — rather than Congress approving something without that consensus.
The San Juan Southern Paiute Tribe also would have secured about 350 acre-feet and a 5,400-acre reservation. It is the only federally recognized tribe without a land base.
That reservation was one of the concerns for the state of Utah, according to its Congressional testimony. The state wanted more information about how the new reservation, part of which would be in Utah, could impact existing water rights, land interests and other public resources.
Utah also wanted clarity on whether states could also take Upper Basin water and use it in the Lower Basin within state lines. Utah spans both basins.
Officials disagree slightly about the degree to which a seven-state consensus is required, but similar support has been a priority in past tribal-state water rights settlement agreements.
For tribes, it’s simple: It’s their water. Tribal nations have been using Colorado River water since time immemorial — well before the river had that name and the water rights system was imposed on them by the United States.
As sovereign nations, they can decide how to use their water but they are also tied to the complex water laws in the basin. And they’ve been working for decades to be able to check off the legal requirements in order to put it to use.
What will happen next?
Navajo Nation President Buu Nygren was disappointed in the settlement act’s initial failure, but hoped the work done so far would set the stage for passage in the next Congressional session.
“The stakes could not be higher,” he said in a prepared statement. “As we work towards consensus with the seven Colorado River Basin States on the settlement, about one-third of homes in the Navajo Nation continue to lack running water, leading to severe public health and economic challenges.”
Buschatzke expects the settlement act to be introduced in essentially the same form, although it is still unclear who will introduce the settlement and when.
The act will likely have to go through the hearings, debates and negotiations again — this time with a different Congressional makeup, new agency leaders and a new presidential administration under President-elect Donald Trump.
Officials hope that a letter of support from all seven basin states will smooth the process, and Buschatzke was optimistic that broad support was in the works.
“I have a very high degree of confidence. I won’t get into the details. I say that because we’re very close to working out everything among the seven of us [states],” he said Dec. 31.
It’s hard to estimate how long it will take for the bill to go through Congress, Buschatzke said.
Most federal appointees have not even been nominated yet, and supporters are waiting to see what approach Trump — who has vowed to cut down on spending — will take in office.
“I would certainly love to see this thing go between the end of the first quarter and the end of the second quarter,” he said. “I don’t think that’s an unreasonable outcome.”
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