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Water is life forum Water is life forum Presentation Transcript

  • “WATER IS LIFE” – “WATER IS SACRED”“WATER IS LIFE” FORUMSPONSORED BY INTER –TRIBAL COALITIONHopi Veterans’ MemorialCenterNovember 12, 2011 Colorado River
  • NORTHEASTERN ARIZONA INDIANWATER RIGHTS SETTLEMENTAGREEMENT• What is Water Rights?• What is the Winters’ Doctrine?• History of Little Colorado River General Stream Adjudication• What is the offer “on the Table”?• What does this mean to Hopi and Navajo?• What can we do about this?
  • Our Water Situation Today  Navajo Aquifer lies under our Reservations (90% is 0ver 10,000 to 35,000 yrs old)  Navajo Aquifer is our primary source for drinking water  Our sacred springs have dried up or are drying up  Our drinking water supply is contaminated and limited  Peabody uses Navajo Aquifer for mining coal Dried Sacred Spring 3
  • Water Rights Case History  Two General Stream Adjudications in Arizona  Gila & Little Colorado River  Arizona v. California - 1963  LCR General Stream Adjudication (Phelps Dodge Case)  Several other cases filed by Indian tribes including Hopi and Navajo Little Colorado River 4
  • Proposed Water Rights Agreement(Agreement-in-Principle – March 28, 2008)  Water Rights negotiations have been going for several years (over 30 years)  Involves about 33 parties  Covers the Lower Basin on Colorado River  Covers Little Colorado River  To Quantify the Amount of water users are entitled to  Acre Feet of Water is aboutGrand Falls - Little Colorado River 326,000 gallons of water 5
  • Proposed Water Rights Agreement(Who are at the table?)  Negotiating parties include:  Arizona Public Service  Land Owners in the Little Colorado River Watershed  Industrial Users  Cities like Flagstaff, Winslow  Navajo Nation  Hopi Tribe  Bureau of Reclamation  Department of Interior  Central Arizona Project 6
  • Proposed Water Rights Agreement(Agreement-in-Principle)  Covers Lower Basin of Colorado River starting at Lee Ferry downstream and including:  Reservoirs  All tributaries to the Lower Colorado River (except AZ)  All underground water hydrologically connected to Lower Colorado River  All underground water Lower Basin of Colorado River hydrologically connected to tributaries (except AZ & NM) 7
  • Proposed Water Rights Agreement(Agreement-in-Principle)  Covers Little Colorado River  Reservoirs  All tributaries  All underground water  Litigation in Arizona Superior Court for Apache County “General Adjudication of All Rights to Use Water in the Little Colorado River System and Source (CIV No. 6417)  Only Zuni Pueblo settled for LCR Little Colorado River Water Rights so far 8
  • Settled and Pending Water Rights Negotiations From 1978 to 2007 Congress ratified 20 Indian Water Rights Settlements into Law including:  Ak-Chin Indian Community (1978)  Tohono O’Odham – San Xavier (1982)  Salt River Pima Maricopa ((1988)  Fort McDowell (1990)  Yavapai Prescott Indian Tribe (1993)  Gila River Indian Community – Tohono O’Odham (2004)  White Mountain Apache (2010) Several Pending Including:  Navajo Nation (Involved in 4 settlement discussions)  Hopi Tribe 9
  • What is a Water Right? A group of rights designed to protect the use and enjoyment of water that travels in streams, rivers, lakes, and ponds, gathers on the surface of the earth, or collects underground Rights come from ownership of land bordering the banks of a watercourse or from a person’s actual use of a watercourse Treated like rights to property (can be conveyed, mortgaged) 10
  • What is Winters Doctrine? “Winters vs. United States” - January 6, 1908 Decision.  Fort Belknap Indian Reservation – Milk River of Montana  Decision: Court found in favor of the United States affirming two lower court decisions that Indian tribes held implied water rights through their agreement with the United States that took priority over latter nearby settlers  “First in Time – First in Right” or “Prior Appropriations”  Argument: When Congress established the Fort Belknap Indian Reservation, it implicitly intended to reserve enough water to sustain the tribe (treaties, executive orders, etc.) 11
  • What is Winters Doctrine? Federal Reserved Water Rights may remain unused for many years States cannot prevent the eventual exercise of these federal property rights in water Reserved Water Rights are quantified in several ways  Adjudication  Practicably Irrigable Acreage (PIA) Standard (Arizona v. California)  2001 Arizona Supreme Court -Arizona tribes have prior rights and not held to PIA standard 12
  • Prior Appropriations Water belongs to first user who appropriates it for beneficial use User (appropriator) is guaranteed the right to continue to take water from that source as long as the water continues to be put to beneficial use Use of water in western states is governed by Doctrine of Prior Appropriation known as “Colorado Doctrine”  No one may own the water in a stream, all persons, corporations, municipalities have a right to use water for beneficial purposes  “First in Time – First in Right” 13
  • What will this settlement givetribes? Quantified water rights A proposed pipeline to deliver surface water to Hopi and Navajo communities from the Colorado River Tribes secure and use Water Rights in number of ways  Domestic Uses, Industrial Uses, Economic Development, Water Banking, Water Marketing, Water Leasing, Water Exchanges. No consideration for Hopi’s rights under Treaty of Guadalupe Hildago 14
  • What’s in Agreement-in-Principle? Western Navajo Pipeline Leupp-Dilkon Project Ganado Project Colorado River Water Little Colorado River Water Gila River Water Rights to other water uses along the Colorado River and Little Colorado 15
  • Agreement-in-Principle Tribes and other users must first agree to Agreement-in- Principle Must agree to “Waiver and Release of Claims” Once agreements are reached, matter moves forward for Congressional action (legislative bill) Funding considerations including high cost to build & maintain pipeline. Kyl instructed negotiators to lower cost of pipeline Senator Kyl has stated he will not carry the bill to fund the pipeline unless tribes come into an agreement on the lawsuit (s) 16
  • Must Waive Water Rights To approve the Water Rights Settlement Agreement, Hopi and Navajo must waive aboriginal Water Rights Proposed Agreement contains a provision for “waiver and release of claims for water rights, injury to water rights, and injury to water quality from time immemorial and thereafter, forever”…  Waiver of Winters Rights  Cannot File Future Claims for Damages 17
  • Injury to Water Right & Water Quality Injury to Water Rights means – “Interference with, diminution of, or deprivation of, Water Rights under Federal, State or other law” Injury to Water Quality means – “Any diminution or degradation of the quality of Water due to a change in the salinity or concentration of naturally occurring chemical constituents of Water and any effect of such change where the changes in salinity or concentration and the effects of such changes are due to the Withdrawal, Diversion or Use of Water” 18
  • Tribal Member Concerns Gives away, waives, does not protect tribal Winters Rights Limits tribes from fully using Water Rights, e.g. cannot build new reservoirs for irrigation Encourages tribes to give up priority Water Rights to other interests with less priority Allows non-Indian users to pump unlimited amounts of Coconino Aquifer (C-Aquifer) 18 miles of Navajo boundary Allows non-Indian users as much “underground flow” as they want without regard for impact on aquifers 19
  • Tribal Member Concerns Does not allow tribes to challenge non-Indian use of sub- flow waters High cost of building and maintaining the Western Navajo Pipeline will be prohibitive – will not be built Allows certain rights to Peabody Coal Flagstaff’s use water right from Red Gap Ranch Water allocation during times of drought (Lower Basin Shortages) and tribal priority rights 20
  • Tribal Member Concerns Waiver and release of claims will prevent tribes from filing damage claims against the parties, including Peabody Coal, for:  Damage to N-Aquifer  No resolution for springs drying up  No resolution for limited water supply  No resolution for water quality 21
  • What can we do about the ProposedSettlement Agreement?  Impose on Hopi Tribal Council to hold a Referendum so Hopi Voters can decide  Become educated  Express our views and provide testimony to our tribal councils 22
  • Thank you for your time! Question & Answer Session Discussion 23