“Tribal Perspectives” on “Water Security”: A Definitional Conundrum

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by Katosha Nakai, Esq., Central Arizona Project Manager, Tribal Relations & Policy Development

What is “tribal perspective” and “water security”? Perhaps the most critical issue for anyone to first understand about tribal perspectives on water security is that no one “tribal perspective" truly exists. Tribes are dynamic. Tribes are unique. Each tribe has its own distinct culture, history, and, like any government, its own diverse interests and perspectives. Absent a specific tribal policy or fundamental law, which in some cases must ultimately be upheld through a tribal governmental entity like a court, defining a true tribal perspective may seem an exercise in futility—it is not. Those with an interest in effective management of shared resources like water can benefit from the multitude of conversations and examinations as to why tribal members, governments and entities feel, believe and manage the way they do. I cannot provide a singular tribal perspective on water security. What follows is simply this tribal member’s single perspective, influenced by working regularly with tribal communities in Arizona in my capacity as Tribal Relations and Policy Development Manager for the Central Arizona Project (CAP).

Certainly tribes have concerns about all water security issues that typically confront any community, but their concerns are often more pronounced on matters more localized to water quality, quantity and infrastructure given an array of historical and legal consequences spanning multiple centuries. During the last century, Arizona and the tribes that reside within its boundaries worked—sometimes against one another’s interests and sometimes collaboratively—to develop a framework for shared management of water resources. Still, only one-half of Arizona’s tribes have fully resolved water rights. So, how tribes approach water security and future water planning varies greatly depending on whether they have legal confirmation regarding the extent and location of their water supply and ready access to that supply.

Bringing certainty of supply and limiting ambiguity has become a priority statewide and for decades, state water interests have looked to the CAP’s Colorado River water supply as a source to satisfy tribal claims. The Arizona Water Settlements Act of 2004 (AWSA) resolved many of the unresolved issues relating to the CAP supply. AWSA quantified and permanently divided the CAP water supply between Indian and non-Indian uses. Forty-six percent of CAP water now is designated for Indian uses. Yet, only 37,107 acre-feet per year remains to complete settlements with 11 tribes. Therefore, tribes with outstanding claims have ongoing security concerns about whether and how their claims will be resolved.

Another security issue for tribes relates to reliable power, and the water-energy nexus has made this a key water security issue in recent years because of the reliance on CAP water. The Navajo Generating Station (NGS), located on the Navajo Nation, supplies more than 90 percent of CAP power using Navajo and Hopi coal. Affordable water is intimately tied to affordable power. When the U.S. Environmental Protection Agency (EPA) first announced its intention to regulate regional haze at NGS, tribal impacts took center stage. Importantly, the AWSA makes excess NGS power,

owned by the Bureau of Reclamation, available for sale on the open market to assist with CAP’s repayment to the federal government and funding for Indian water settlements. Requiring costly NGS retrofits will push CAP energy rates to a point that will produce no profit for the excess power and will significantly increase the energy portion of CAP rates, which most tribes must pay. To the extent tribes believed they were settling their water rights claims for an inexpensive source of water, tribes now question whether the federal government is essentially stripping them of the benefit of their bargain.

NGS issues highlight how divergent and complex tribal perspectives can be. For example, under the currently proposed EPA regulation, CAP’s water users will bear the largest percentage of any NGS related rate increases; this means significant impacts for the Gila River Indian Community, CAP’s largest single contract holder, as well as other CAP water using tribes. Meanwhile, excess power will no longer be available at rates that will provide profit to support future Indian water rights settlements. Additional uncertainties related to future royalty and lease agreements will also raise energy rates dramatically. These increases are critically important to the interests of the Hopi Tribe and Navajo Nation, but they also work to the economic detriment of tribes using CAP water and the very fund that might one day be called upon to assist the Hopis’ and Navajos’ own water rights settlement—rights currently outstanding and unresolved.

Perhaps in the end, that is the best way to define a tribal perspective on water security: outstanding and unresolved. This, however, should not be an excuse for failure to engage, but rather the impetus for dialogue.