The Navajo-Hopi Little Colorado River Water Rights Settlement Act is facing some tribal opposition that may derail chances for passage in the current Congress. The Act essentially settles tribal claims to the Little Colorado River by trading unquantified claims for specified rights and funding for water supply projects. The Act gives the Navajo Nation the right to unlimited amounts of water from the Little Colorado River as it flows through the reservation and from groundwater under the reservation, for use on the reservation. While unlimited, the ability to put these rights to use is constrained by hydrologic, geologic and economic realities.
As Senator Kyl stated when he introduced the legislation in February, “legally the Navajo Nation and the Hopi Tribe may assert claims to larger quantities of water, but … they do not have the means to make use of those supplies in a safe and productive manner.” Despite his strong desire to see passage of the Act before he retires, Kyl told tribal leaders that he would work to advance the bill through Congress only if both the Navajo Nation and the Hopi Tribe give their approval.
In November 2010, the Navajo Nation Council approved a water rights settlement agreement to resolve Navajo claims to both the Little Colorado River and Lower Colorado River mainstem. That agreement was the result of many years of negotiation among stakeholders in both the Little Colorado and Colorado River basins. However, the current settlement differs substantially from the 2010 agreement, which included $800 million in infrastructure funding. Unfortunately, the $800 million price tag was too high for the current Congress. The current settlement contains neither authorization for the Western Navajo Pipeline, nor a Lower Colorado River settlement.
Much of the opposition to the Settlement Act has been attributed to frustration over alleged lack of transparency in the process of translating the settlement into a bill that can be acted on by Congress and the complicated and confusing legalese of the bill. Stanley Pollack, the Navajo Nation’s water attorney, admitted that the bill is densely and in some cases badly written.
The bill contains many waivers, contingencies and assurances that are difficult to parse. Its main provisions, however, would authorize roughly $358 million for water infrastructure: principally the Leupp-Dilkon Groundwater Project, the Ganado Groundwater Project and the Hopi Groundwater Project, along with other smaller authorizations.
One provision of the Act appears to be a primary source of confusion. In addition to settlement of Little Colorado River claims, the Act contains an option for the Navajo Nation to acquire 6,411 acre-feet of Colorado River water without a Colorado River settlement. To acquire this water, certain conditions must be met, including the Nation’s approval of leases and permits for operation of the Navajo Generation Station and the Kayenta coal mine though 2044. Although this provision would not affect the Little Colorado River settlement portion of the Act, it is a source of opposition from tribal and non-tribal groups advocating a transition to sustainable, renewable energy.
Arguing in favor of the settlement, Pollack pointed out that although it is not perfect, having no settlement means a return to litigation that has been going on for 33 years, with no end in sight. The settlement means there will be projects to bring water to water-starved areas, as well as other desired benefits, including the reservation of Colorado River water for a future Colorado River settlement.
A series of public meetings were scheduled in April to introduce Navajo communities to the provisions of the Act and take public comment. Public comments were predominantly negative and some exchanges became quite heated. Navajo President Ben Shelley, who initially favored passage of the Act, is now reserving judgment until tribal members have had a chance to learn about the provisions of the Act and to evaluate its meaning for the future of the Nation. The full text of the Act (http://www4.nau.edu/eeop/workshops/docs/wrkshps_WaterBill.pdf) and settlement agreement (http://http://nnwrc.org/?s=settlement+agreement&submit.x=8&submit.y=10) are available on line.