Bill Would Settle Tribal Water Rights

Legislation has been introduced to settle decades of litigation that has left many individuals and interests in the state uncertain about their water rights. Arizona Sens. Jon Kyl and John McCain recently introduced the Arizona Water Settlements Act to ratify state water right settlements.

Embodied within the bill are agreements worked out over five years by 35 parties. These include the state and federal governments, Indian tribes, municipalities, the Salt River Project, the Central Arizona Water Conservation District, farmers, corporate entities and others.

The act is fundamentally concerned with settling Indian water rights, since resolving these priority rights is key to determining other state water claims. Of the 1.5 million acre-feet that flows through the Central Arizona Project canal, 47.2 percent will be allotted to Indian Tribes and 52.8 percent to non-Indian users. Indians would be able to lease water to cities, although they are prohibited from selling or leasing their water out of state. The legislation specifies amounts of CAP water to be allocated to municipalities, farmers and tribes.

The sale and lease of water promises to be a profitable activity for tribes as Arizona cities approach the limits of their current resources.

A settlement between the Gila River Indian Community and other parties is confirmed for water rights to various sources: SRP storage supplies, CAP, groundwater and reclaimed municipal water. In total, the Gila Tribe will be getting 653,500 acre-feet per year. Also as part of the settlement, the cost of constructing the Gila River Community's water delivery systems and rehabilitating existing systems will be paid. The tribe intends to increase its agricultural output, with plans to raise 146,000 acres of cotton, wheat, alfalfa and vegetables.

The legislation also amends the 1982 Southern Arizona Water Rights Settlement Act to resolve disputes among the Tohono O'Odham Nation, San Xavier allottees, Tucson and private users. Along with ensuring implementation of the basic elements of the 1982 settlement, the bill allows the Tohono O'Odham greater flexibility in putting their water resources to beneficial use. The Tohono O'Odham Nation would receive 28,200 acre-feet a year.

For their part, the tribes involved in the settlement would agree not to pursue legal claims against the state under the 1908 Supreme Court ruling, the "Winter's Decision." In Winters, the court held that when reservations were established sufficient water was implicitly reserved to fulfill the intended purposes for which the reservations were established .

Although non-Indian farmers will be surrendering water rights to CAP water, their use of water from the Salt and Verde rivers will be unaffected. This is to their advantage since, if the Gila River Indian tribal law suit prevailed, its water claims would have come from the Salt and Verde rivers.

And the bill also would allocate about 66,000 acre-feet of unallocated CAP water, to be divided among Phoenix, Tucson, Mesa, Glendale and Scottsdale. These cities would then have backup supplies to dip into before having to lease the more costly tribal water.

The bill also establishes terms for Arizona to repay the federal government for CAP construction costs, with the state paying $1.65 billion of the total cost of $4.7 billion. Federal officials were demanding about $700 million more from the state.

Proponents of the bill say it will help settle much unfinished state water business, ultimately to the advantage of non-Indian interests, even though the tribes seem to have made the greater gains. Arizona urban areas, irrigation districts, farmers, mining companies and other water users would now know with more certainty the amount of water they have available to support their activities and plans, without the threat of future litigation by Indian tribes.

The bill rankles some who believe that tribes will be gaining an undue proportion of the state's water resources to the disadvantage of non-Indian water users. In a Sept. 29 editorial in the Arizona Republic, Earl Zarbin, author and retired reporter, complained, "Added to the almost 28 percent of the state's entitlement of 2.8 million acre-feet already controlled by three Indian Reservations along the Colorado River, it (the bill) will mean that slightly more than 1 percent of the state's population will control more than 51.5 percent of Arizona's entitlement."

Kyle says the complex settlement embodies various compromises among interests, with none achieving everything they wanted. Agreement prevailed, however, to avoid the excessive cost of further litigation and to bring to a close a very contentious and uncertain situation.

The bill will not likely come up for hearing until early next year and will likely be tweaked and fine tuned as it makes the rounds of the various agencies and committees and is submitted for public discussion. Since passage of the bill comes at a cost to the U.S. Treasury, it will likely get careful congressional scrutiny. Some observers expect it could take several years for the measure to make it through Washington.

Sens. Kyle and McCain wrote in an Arizona Republic editorial, "The intensive and protracted negotiation of these agreements has brought us to this final stage in the settlement process. And if Arizonans are unified, we expect success in the legislative process."

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