LAS VEGAS — A coalition of tribes, water officials and water board members from the Lower Basin of the Colorado River came to the Colorado River Water Users Association meeting last week on a mission: overcome resistance by Upper Basin states to passing key water rights settlement legislation before Congress adjourns later this month.
The Northeastern Arizona Indian Water Rights Settlement Act would ratify an agreement reached after nearly six decades of negotiation and litigation over portions of the Colorado and Little Colorado rivers and groundwater. The settlement act would also fund the infrastructure to bring safe and reliable water to the Navajo Nation and the Hopi and San Juan Southern Paiute tribes, which most Arizonans take for granted.
The historic settlement was signed by Arizona Gov. Katie Hobbs in November after being finalized in May.
The bills were sponsored by Democratic Sen. Mark Kelly in the Senate and a companion House bill by Rep. Juan Ciscomani, R-Ariz., and co-sponsored by outgoing Sen. Kyrsten Sinema, I-Ariz., and Rep. Eli Crane, R-Ariz., who represents the three tribes and other communities in northeastern Arizona.
The legislation would also settle claims by several other communities and stakeholders outside tribal lands. Some of those include Flagstaff, Snowflake, St. Johns and other towns and cities, all of which have sought certainty in their water supplies.
The bill, which is among many under consideration in the lame-duck session at the end of the current congressional term, would also give the San Juan Southern Paiute Tribe a long-awaited 5,400-acre trust land base, enabling the 300-member tribe to build needed infrastructure like housing and tribal administration facilities.
A delegation of Navajo officials watch as Upper Basin states discuss Colorado River issues at the Colorado River Water Users Association meeting on Dec. 5, 2024.
The Navajo Nation in particular has suffered from a lack of fresh, clean water. During the COVID-19 pandemic, the death rate for Navajos was about 800 per 100,000 people, more than twice the rate of the United States as a whole, according to Johns Hopkins University’s final COVID report.
None of those statistics, nor the strong consensus among Lower Basin officials seemed to sway the Upper Basin states, even though New Mexico and Utah have enacted settlements with Navajo. Among other concerns: Because Navajo has land and claims to water in both basins, Colorado, New Mexico, Utah and Wyoming leaders said all seven states must reach consensus according to federal law.
Indigenous issues: Their pleas for water were long ignored. Now tribes have a voice on the Colorado River
Upper Basin states: ‘The law requires we all agree’
Estevan López, New Mexico’s representative and Upper Colorado River Compact commissioner, said he knows the Navajo Nation needs water, but said “the settlement as it’s proposed right now has some really distinct compact implications.”
One of those implications is moving water between basins. “Traditionally, particularly when you move water across the basin boundary, that has always required a seven-state consensus,” López said. “We don’t want Congress to be interpreting the compact, we want the parties to interpret it.”
Tom Buschatzke, director of the Arizona Department of Water Resources, said he sees the Upper Basin’s concerns covering multiple issues, including the states’ desire to keep Congress from interpreting the Law of the River without their agreement.
The four Upper Basin states also have problems with the lease provision in the bills, but, Buschatzke said those leases will be good for the tribes.
“Despite the fact that they’ve had huge price tags, historically the settlements always run out of money, so they need a way to be able to make sure the process can get finished,” he said. Short-term leases will give the tribes the resources to help pay for infrastructure and delivery. “Otherwise they’re going to end up again with a piece of paper and not a real use of the water at the end of the day.”
When the Navajo Generating Station shut down, he said the 34,000 acre-feet of water it used remained in Lake Powell. But once Navajo starts using that water again, somebody else will have to forgo taking it.
“The tribes in almost all the cases have senior rights to water that’s unused,” Buschatzke said.
Whether due to lack of a water settlement or because they’re not using all their water allotment, somebody else is using that water. And, he said, when settlements occur or when tribes can build the infrastructure to use their allotment, somebody will have to give some of that unused water up.
But, Buschatzke said, turning water in the pages of a settlement, or “paper” water, into water flowing out of taps, or “wet” water, is preferable because it allows communities to control their own destinies.
The certainty of a water allotment and the means to use it is huge, he said, particularly because it prevents “somebody in a black robe or multiple people in a black robe tell you what you can and can’t do.”
Navajo president ‘grew up having to figure out how to get ready for school without running water’
Tribal leaders at the Las Vegas conference spoke on the impasse while discussing other water issues.
“I grew up without running water,” said Navajo Nation President Buu Nygren. “I had to bring in water and warm it to wash my face and figure out how to make sure we can conserve it on a day-to-day basis.”
He didn’t have access to running water until he arrived for his freshman year at ASU.
Navajo Nation President Buu Nygren (left) speaks during the Navajo Nation, Hopi Tribe and San Juan Southern Paiute water settlement signing ceremony on July 17, 2024, in Phoenix. Looking on is Terry Goddard (right, Central Arizona Water Conservation District).
Nygren said that every day, thousands of Navajo families must contend with the same conditions that he did as a kid.
“They may actually have to use water from their windmill even though they’re not supposed to be drinking that water,” due to possible contaminants in the groundwater.
Those experiences have driven him to work to bring clean, running water to the estimated one-third of Navajo homes that currently must do without water coming from a faucet.
The tribes and Lower Basin states are continuing to wrestle with a consensus, but time is running out for this session, the Navajo delegation pointed out. If the bill doesn’t get through Congress by the end of session, it would have to be filed again next year with a new Congress and new administration.
“If there is some deadline that we’re missing, I don’t know,” said Brandon Gephart, Wyoming’s state engineer and representative. “But we have consistently been saying and committed to even if we miss this deadline to still work with the Navajo Nation to try to get this result.”
Nygren said a consensus would need to be reached by Tuesday to give bill sponsors time for markups, debates and votes.
While the impasse continued through the end of the conference Friday, Navajo leaders continued to make their case. Navajo Nation Council Delegate Carl Slater was shaking his head at the four states’ objections.
“I pray that the Upper Basin leadership will sign the consensus document and get this bill passed in this congressional session,” said Slater, who calls Round Rock home.
“Without access to Colorado River water, I can’t even open a grocery store to provide basic groceries to local residents.”
Debra Krol reports on Indigenous communities at the confluence of climate, culture and commerce in Arizona and the Intermountain West. Reach Krol at debra.krol@azcentral.com. Follow her on X @debkrol.
Coverage of Indigenous issues at the intersection of climate, culture and commerce is supported by the Catena Foundation.
This article originally appeared on Arizona Republic: Navajo and Hopi water settlement opposed by Colorado River states