Negotiating Navajo Water Rights Raises Complex Law of the River Issues

Proposed terms could break new legal ground

If, in fact, there were any doubts about the matter, negotiations now underway to settle Navajo water right claims could serve as a case study of the intricate and complex workings of water law. What further complicates the issue in this instance is that the area of the Navajo Nation to receive water from whatever settlements are worked out is located close to the boundary between the upper and lower Colorado River basins. The Law of the River, which determines the management and use of Colorado River water, including its allocation between basins, becomes an issue to be reckoned with.

The framers of the Colorado River Compact established a line of demarcation running through Lees Ferry, separating the upper and lower Colorado River basins. Serving as a hydrological boundary — and a rather arbitrary one at that — this line slices across the top of the Navajo Reservation, with some Navajo communities in the upper basin and some in the lower basin. The Navajo are now seeking water right settlements from New Mexico, an upper basin state, and Arizona, a lower basin state.
Consider also that Law of the River has generally been interpreted to forbid moving Colorado River water between basins, with lower basin water to be used only in the lower basin and upper basin water for use in the upper basin.

The scene is set for complicated legal maneuvering, and you don’t have to be a water lawyer to anticipate a long, winding road ahead.

Navajo-New Mexico San Juan River settlement

A tributary of the Colorado River, the San Juan River flows through the Four Corners area, draining nearly 16 million acres of New Mexico, Colorado, Utah and Arizona. Because it drains into Lake Powell the San Juan River is an upper basin tributary. It is the source of a proposed water supply project, to build a 250-mile pipeline from the river to Navajo communities in Arizona and New Mexico as well as to city of Gallup, New Mexico.

The Navajo-Gallup pipeline provides the potential for New Mexico and Arizona to resolve Navajo water right water claims and is, in fact, the centerpiece of a water rights settlement being worked out between the tribe and New Mexico. New Mexico would grant the tribe about 36,000 acre-feet of San Juan River water, to be delivered to Navajo communities in New Mexico via the pipeline. Although Gallup has no San Juan River rights, the city could purchase water from the Navajo.

The plan is not without complications. For New Mexico to take water from the San Juan River to serve Navajoes in the northern portion of the Navajo Nation would entail a Colorado River transbasin transfer, from upper to lower basin. Thus the plan must contend with the aforementioned Law of the River and its prohibition against moving Colorado River water between upper and lower basins.

(The Law of the River’s stricture on this matter is viewed by some as an incongruity. They point out that whereas moving water between upper and lower basins may run afoul of the law, Colorado River water can readily be transferred out of the basin for use in another basin. In this instance, San Juan River water could with less legal restraints be pumped to Albuquerque or Santa Fe, cities entirely outside the Colorado River basin, than to an area on the Navajo Nation which happens to be located on the wrong side of the upper basin/lower basin divide.)

In an effort to breach a possible impasse, the Upper Basin Commission, made up of representatives of states receiving upper basin Colorado River allocations, passed a resolution approving New Mexico’s use of its San Juan River water in the lower basin for the Navajo-Gallup project. In making its resolution, the Commission is departing from the traditional interpretation of the Law of the River, to take what is in effect an unprecedented stand. The resolution, however, is project specific and stipulates moving Colorado River water between basins within a single state, not between two or more states. Congress must act upon the resolution before it can take effect.

With a Navajo-New Mexico settlement in the works, the scene shifts to Arizona where Navajoes living on tribal lands within the state, including those living in the Navajo capitol of Window Rock and Fort Defiance, need water supplies. Negotiations are underway between the tribe and the State of Arizona to define available water supplies and to determine delivery to the area. With more options and variables to ponder, Arizona’s water dealings with the Navajo are fraught with greater complexities than what confronts New Mexico. In the words of Gregg Houtz, an attorney with the Arizona Department of Water Resources, “There are a lot of legal hoops to jump through.”

Arizona’s San Juan River options

Step one in whatever settlement is worked out is to identify a water source. Water resources in that part of the country, the Four Corners area, are few and far between, with the San Juan River one of the few available supplies. An obvious solution then would be for Arizona also to tap into the San Juan River in New Mexico, with the water pumped through the proposed pipeline into Arizona for Navajo use. What might make sense hydrologically, however, must stand up to legal scrutiny or, in other words, negotiate looming legal hoops.

Map showing course of San Juan River

(The discussion is sidestepping an issue central to Arizona’s use of the San Juan River. Any Arizona project relying on San Juan River water could sooner or later confront an uncertainty of supply. As upper basin states, Colorado, New Mexico and Utah have first priority to the San Juan River, with Arizona having lesser priority. Where might that leave water users in Arizona relying on San Juan River water during years of reduced rain?)

With Arizona receiving allocations from both basins, the state could look into the option of providing the Navajo either upper or lower basin water. Flowing into Lake Powell, the San Juan River is an upper basin tributary that could be the source for Arizona’s upper basin water allocation, to be delivered to the Navajo. Arizona, however, has a 50,000 acre feet right to upper basin water diverted in Arizona. To take its upper basin allocation from the San Juan River, which does not flow in Arizona, the state would need the approval of the Basin States, particularly New Mexico.

If approval were granted and if Arizona adopts this seemingly straight forward plan, the state would be in the same position as New Mexico, with its upper basin supplies designated for use in lower basin areas of the Navajo Nation. Arizona would need to come to terms with the Law of the River, to seek some sort or exemption or reinterpretation.

New Mexico has suggested a way Arizona might negotiate this legal thicket. In researching the Law of the River, New Mexico officials noticed that Congress, when it approved the Central Arizona Project, authorized Arizona to count water to be used in a projected power plant as upper basin water, even if the plant were built in the lower basin. As it turned out, however, the Page power plant was built in the upper basin. Congress therefore authorized an action that at the time did not occur.

Yet some argue that Congress had by its action approved Arizona’s subsequent use of its upper basin water in the lower basin. In other words, it is OK to use upper basin San Juan River water for the Navajo. This is not a view favored by many state officials. Regardless of how that controversial view plays out, however, the Congressional authorization did in fact raise an important question: Does Congress have the power to unilaterally amend the Colorado River Compact? In this situation, Congress appeared to have done just that.
Various other issues arise if Arizona should decide to use its upper basin allocation. The state has a rather limited upper basin allocation (50,000 acre-feet) compared to its lower basin allocation (2.8 million acre-feet). Aside from the Navajo, the only other major water users in Arizona’s upper basin are the Navajo Generating Station and the City of Page. The Navajo have an agreement with the generating station to manage tribal water supplies to ensure that sufficient upper basin water is available to maintain the plant’s operations. Would the tribe by accepting 6,500 acre feet as part of an Arizona settlement threaten supplies to the power plant?

Also, the state needs to maintain sufficient water in its upper basin apportionment to meet whatever reserved rights the Navajo may later claim. Would allocating 6,500 acre-feet now deplete resources that might be need for future settlements?

Arizona considers lower basin supplies

Another option Arizona might pursue is to tap into the San Juan River, with water withdrawn designated as lower basin water rather than upper basin. Same river, same point of withdrawal, but now it is lower basin water flowing through the pipe. With its lower basin water for use in the lower basin, Arizona would be complying with the Law of the River, in at least that regard. Yet an obvious problem arises. The state would now have to find the means of taking delivery of its lower basin appropriation from an upper basin tributary, the San Juan River, without violating the Law of the River. This would be a formidable legal hoop to leap through, in need of the backing of the Upper Basin Commission, the three lower basin states and an act of Congress.

ADWR attorney Gregg Houtz says, “The seven Colorado River Basin states have not addressed this issue yet, although they are aware of similar proposals. There was recent discussion of the path of a Lake Powell pipeline to Black Mesa but that is no longer on the table.”

If Arizona takes up the challenge and gains approval for this plan, the state would in effect be supplying the tribe with Central Arizona Project water. More issues are thus raised. Present CAP customers would likely prefer that CAP water remain in the service area to ensure that all users equitably share the project’s fixed costs. If CAP water for the Navajo is severed from the project, water users in the CAP service area would face increased fixed costs. Less objections would arise if any agreement worked out with the Navajo would ensure that the tribe pays its share of CAP fixed costs.

Through the Arizona Water Settlement Act, now wending its way through Congress, a supply of CAP water has been identified for possible Navajo use. AWSA creates a 197,500 acre-foot CAP Indian water rights settlement pool, with 102,000 acre feet set aside for the Gila River Indian Tribe, 28,200 acre feet to the Tohono O’dham, and 67,300 acre feet for other Indian settlements. The act, however, prohibits the Secretary of the Interior from allocating these funds without an Indian water rights settlement in Arizona.

Officials have generally considered that the 67,300 acre feet would be available for negotiating with the Navajo and Hopi tribes, with the assumption that the water would be diverted from Lake Powell, in Arizona. Dipping into the San Juan River in New Mexico adds a new twist to whatever deal might be worked out.

What might be called accounting problems also arise. The upper basin has a compact obligation to bypass to the lower basin 75 million acre feet over a 10 year period. How is upper basin San Juan River water, that for purposes of a settlement is considered lower basin water, to be figured into a river accounting system? Is it to be considered bypassed water even though it never in fact flowed to the lower basin? Not surprisingly, this is an issue The Law of the River doesn’t address.

This may appear a seemingly slight matter, to be readily resolved through some administrative action. But Herb Dishlip, a consultant involved in the negotiations, warns of possible consequences if legal shortcuts are taken. He says, “A lot of people think these are administrative details, but that could create a lot of mischief. We are not sure where that kind of creative accounting might lead.”

Another accounting issue has to do with power revenue. Water taken from the San Juan River will not flow through the turbines at Glen Canyon, Hoover and Davis dams, to generate electricity. This represents an estimated $50,000 annual loss.

Navajoes have options

Identifying water supplies and working out various hydrological and legal details is only part of the story. Much of the rest of the story has to do with negotiating with the Navajo which tribal claims would be settled by San Juan River water.

The Navajo’s water rights to the Little Colorado River have been discussed as part of the Little Colorado River adjudication, along with those of the Hopis, San Juan Paiutes and Zunis. A long, arduous process, the adjudication has been basically on hold since the summer of 1999. Possibly San Juan River water could be a bargaining chip to help resolve some of the pending issues relating to the Navajo claims to the Little Colorado River.

That water from the San Juan River or, in effect, the Colorado River, is used to resolve claims to the Little Colorado River would present no legal complications. Using water from one river to resolve claims to another is a strategy used in the Gila River Indian settlement, with the tribe getting Colorado River water to resolve its claims to the Salt and Gila rivers.

Also the Navajos are presently involved in litigation with the federal government, to obtain recognition of tribal claims to the main stem of the Colorado River. Of possibly broad and far-reaching consequences, the law suit could result in a rethinking of current state and federal water management policies and practices. Possibly San Juan River water could figure into negotiations with the Navajo over their claims to the main stem of the Colorado River.

Another option, one not fitting into the settlement scenario, involves the tribe buying or contracting its own Colorado River supply, possibly from Yuma or an irrigation district in the southern part of the state. The water right could then be transferred through Lake Mead up to Lake Powell, to the San Juan River. Water for Window Rock could then be obtained pursuant to a contract and not as the result of a tribal water rights settlements. Navajo water rights then would remain unsettled, awaiting further developments and possibly a more promising payoff.

This obviously would not be to the advantage of Arizona. With the federal government investing heavily in the building of the Navajo-Gallup pipeline, the state would likely expect that a water rights settlement would a precondition of the project.

Whatever settlement is finally worked out between the state and the tribe would then have to be approved by Congress. A further complication may then arise. Houtz explains: “Our concern is when you go Congress to confirm something like this and you need the concurrence of other states, you always ask what they are going to expect in return. How big a price is Arizona going to have to pay by going along with projects we are not sure about in, say, Utah or Nevada?”

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