U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

37-012 PDF 2008

H.R. 2515, ‘‘LOWER COLORADO 

RIVER MULTI-SPECIES CONSERVATION PROGRAM ACT’’ & 

H.R. 1970, ‘‘NORTHWESTERN 

NEW MEXICO RURAL WATER 

PROJECTS ACT’’ 

LEGISLATIVE HEARING 

BEFORE THE

SUBCOMMITTEE ON WATER AND POWER 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

Tuesday, July 24, 2007 

Serial No. 110-35 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html 

or 

Committee address: http://resourcescommittee.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

NICK J. RAHALL II, West Virginia, Chairman 

DON YOUNG, Alaska, Ranking Republican Member 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Solomon P. Ortiz, Texas 

Frank Pallone, Jr., New Jersey 

Donna M. Christensen, Virgin Islands 

Grace F. Napolitano, California 

Rush D. Holt, New Jersey 

Rau ́l M. Grijalva, Arizona 

Madeleine Z. Bordallo, Guam 

Jim Costa, California 

Dan Boren, Oklahoma 

John P. Sarbanes, Maryland 

George Miller, California 

Edward J. Markey, Massachusetts 

Peter A. DeFazio, Oregon 

Maurice D. Hinchey, New York 

Patrick J. Kennedy, Rhode Island 

Ron Kind, Wisconsin 

Lois Capps, California 

Jay Inslee, Washington 

Mark Udall, Colorado 

Joe Baca, California 

Hilda L. Solis, California 

Stephanie Herseth Sandlin, South Dakota 

Heath Shuler, North Carolina 

Jim Saxton, New Jersey 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Wayne T. Gilchrest, Maryland 

Chris Cannon, Utah 

Thomas G. Tancredo, Colorado 

Jeff Flake, Arizona 

Stevan Pearce, New Mexico 

Henry E. Brown, Jr., South Carolina 

Luis G. Fortun ̃ o, Puerto Rico 

Cathy McMorris Rodgers, Washington 

Bobby Jindal, Louisiana 

Louie Gohmert, Texas 

Tom Cole, Oklahoma 

Rob Bishop, Utah 

Bill Shuster, Pennsylvania 

Dean Heller, Nevada 

Bill Sali, Idaho 

Doug Lamborn, Colorado 

Mary Fallin, Oklahoma 

Kevin McCarthy, California 

James H. Zoia, Chief of Staff 

Jeffrey P. Petrich, Chief Counsel 

Lloyd Jones, Republican Staff Director 

Lisa Pittman, Republican Chief Counsel 

SUBCOMMITTEE ON WATER AND POWER 

GRACE F. NAPOLITANO, California, Chairwoman 

CATHY McMORRIS RODGERS, Washington, Ranking Republican Member 

Jim Costa, California 

George Miller, California 

Mark Udall, Colorado 

Joe Baca, California 

Vacancy 

Nick J. Rahall II, West Virginia, ex officio 

Ken Calvert, California 

Dean Heller, Nevada 

Doug Lamborn, Colorado 

Mary Fallin, Oklahoma 

Don Young, Alaska, ex officio 

(III) 

CONTENTS 

Page 

Hearing held on Tuesday, July 24, 2007 ............................................................... 1 

Statement of Members: 

Heller, Hon. Dean, a Representative in Congress from the State of 

Nevada ........................................................................................................... 4 

Lamborn, Hon. Doug, a Representative in Congress from the State of 

Colorado ......................................................................................................... 3 

Mitchell, Hon. Harry, a Representative in Congress from the State of 

Arizona ........................................................................................................... 5 

Prepared statement of ............................................................................... 5 

Napolitano, Hon. Grace F., a Representative in Congress from the State 

of California ................................................................................................... 2 

Prepared statement of ............................................................................... 3 

Udall. Hon. Tom, a Representative in Congress from the State of 

New Mexico ................................................................................................... 6 

Statement of Witnesses: 

Bitter Smith, Susan, President, Board of Directors, Central Arizona 

Water Conservation District, Phoenix, Arizona ......................................... 10 

Prepared statement on H.R. 1970 ........................................................... 13 

Prepared statement on H.R. 2515 ........................................................... 12 

Response to questions submitted for the record ..................................... 14 

Caan, George M., Executive Director, Colorado River Commission of 

Nevada, Las Vegas, Nevada ....................................................................... 16 

Prepared statement on H.R. 2515 ........................................................... 18 

Response to questions submitted for the record ..................................... 19 

Dunlap, Jim, Chairman, New Mexico Interstate Stream Commission, 

Santa Fe, New Mexico ................................................................................. 58 

Prepared statement on H.R. 1970 ........................................................... 59 

Response to questions submitted for the record ..................................... 64 

Gillon, Kara, Senior Staff Attorney, Defenders of Wildlife, Albuquerque, 

New Mexico ................................................................................................... 20 

Prepared statement on H.R. 2515 ........................................................... 21 

Response to questions submitted for the record ..................................... 26 

Houtz, Gregg, Deputy Counsel, Arizona Department of Water Resources, 

Phoenix, Arizona, Oral statement on behalf of Herbert R. Guenther 

on H.R. 1970 ................................................................................................. 71 

Response to questions submitted for the record ..................................... 73 

Johnson, Robert, Commissioner, Bureau of Reclamation, U.S. Department 

of the Interior, Washington, D.C., Oral statement on H.R. 1970 ............ 44 

Prepared statement on H.R. 1970 ........................................................... 44 

Oral statement on H.R. 2515 ................................................................... 8 

Prepared statement on H.R. 2515 ........................................................... 9 

Lundstrom, Hon. Patricia A., Member, New Mexico House of 

Representatives, and President, Northwest New Mexico Council of 

Governments, Gallup, New Mexico ............................................................. 65 

Prepared statement on H.R. 1970 ........................................................... 67 

Shirley, Hon. Joe, Jr., President, Navajo Nation, Window Rock, Arizona .. 48 

Prepared statement on H.R. 1970 ........................................................... 50 

Response to questions submitted for the record ..................................... 54 

Page

IV 

Statement of Witnesses—Continued 

Zimmerman, Gerald R., Executive Director, Colorado River Board of 

California, Glendale, California, Oral statement on H.R. 1970 ............... 73 

Prepared statement on H.R. 1970 ........................................................... 75 

Response to questions on H.R. 1970 ....................................................... 77 

Oral statement on H.R. 2515 ................................................................... 27 

Prepared statement on H.R. 2515 ........................................................... 28 

Response to questions on H.R. 2515 ....................................................... 30 

Additional materials supplied: 

Grubaugh, Elston, Acting General Manager, The Imperial Irrigation 

District, Statement submitted for the record on H.R. 2515 ..................... 84 

Guenther, Herbert R., Director, Arizona Department of Water Resources, 

Statement submitted for the record on H.R. 1970 .................................... 86 

Statement submitted for the record on H.R. 2515 ................................. 89 

Jicarilla Apache Nation, Statement submitted for the record on 

H.R. 1970 ...................................................................................................... 90 

Jones, Evan, Vice President, BHP Navajo Coal Company, Statement 

submitted for the record on H.R. 1970 ....................................................... 93 

Kightlinger, Jeffrey, General Manager, The Metropolitan Water District 

of Southern California, Statement submitted for the record on 

H.R. 2515 ...................................................................................................... 94 

List of documents retained in the Committee’s official files ......................... 95 

San Juan Agricultural Water Users Association, Mike Sullivan, 

Chairman, Statement submitted for the record on H.R. 1970 ................. 96 

(1) 

LEGISLATIVE HEARINGS ON H.R. 2515, TO 

AUTHORIZE APPROPRIATIONS FOR THE 

BUREAU OF RECLAMATION TO CARRY OUT 

THE LOWER COLORADO RIVER MULTISPECIES CONSERVATION PROGRAM IN THE 

STATES OF ARIZONA, CALIFORNIA, AND 

NEVADA, AND FOR OTHER PURPOSES. 

‘‘LOWER COLORADO RIVER MULTI-SPECIES 

CONSERVATION PROGRAM ACT;’’ AND 

H.R. 1970, TO AMEND THE COLORADO 

RIVER STORAGE PROJECT ACT AND PUBLIC 

LAW 87-483 TO AUTHORIZE THE CONSTRUCTION AND REHABILITATION OF WATER 

INFRASTRUCTURE IN NORTHWESTERN NEW 

MEXICO, TO AUTHORIZE THE USE OF THE 

RECLAMATION FUND TO FUND THE RECLAMATION WATER SETTLEMENTS FUND, TO 

AUTHORIZE THE CONVEYANCE OF CERTAIN 

RECLAMATION LAND AND INFRASTRUCTURE, TO AUTHORIZE THE COMMISSIONER 

OF RECLAMATION TO PROVIDE FOR THE 

DELIVERY OF WATER, AND FOR OTHER 

PURPOSES. ‘‘NORTHWESTERN NEW MEXICO 

RURAL WATER PROJECTS ACT.’’ 

Tuesday, July 24, 2007 

U.S. House of Representatives 

Subcommittee on Water and Power 

Committee on Natural Resources 

Washington, D.C. 

The Subcommittee met, pursuant to call, at 10:02 a.m. in Room 

1334, Longworth House Office Building, Hon. Grace F. Napolitano 

[Chairwoman of the Subcommittee] presiding. 

Present: Representatives Napolitano, Costa, Heller, Lamborn, 

and Udall. 

2 

STATEMENT OF THE HON. GRACE F. NAPOLITANO, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

CALIFORNIA 

Mrs. NAPOLITANO. Good morning ladies and gentlemen, and welcome to the hearing on two significantly different yet major issues 

of importance to the future of water in the western United States. 

We will hear testimony on H.R. 2515, a bill that would put in 

place a proactive approach to the preservation of habitat while ensuring continued water deliveries in the lower Colorado River 

Basin. 

And also on H.R. 1970, legislation that will implement the 

Water Settlement Agreement between the Navajo Nation and New 

Mexico and the United States. 

Both of these bills address critical water topics that can no 

longer be overlooked or ignored. Habitat restoration and preservation concerns now have a seat at the table, as they well should 

have, and Indian water rights, although created and vested as of 

the date of the reservation, were often left behind as major water 

deals to benefit non-Indians were developed in the decades past. 

I support the general premise of both bills but I do have a number of questions and concerns. With regard to H.R. 2515, I am concerned about the 50-year term of the agreement proposed in the 

legislation which many, including myself, feel is too long. Nobody 

can predict what the lower Colorado River might look like 50 years 

from now, and I am also concerned that some of the limitations in 

the bill effectively immunize water users from future changes to 

the Endangered Species Act. 

H.R. 1970, introduced by our colleague from New Mexico, Congressman Tom Udall, is certainly the most significant Indian water 

rights legislation to come before this subcommittee since 2005 

when we enacted the Arizona Water Rights Settlement Act. This 

legislation includes a number of provisions that have drawn criticism from the Administration, and we have tried to address some 

of those issues in today’s hearing. I hope our questioning of the witnesses this morning will help to resolve some of these points. 

Commissioner Johnson, I am particularly concerned that the Bureau of Reclamation has been very closely involved in many of 

these projects contemplated, especially in H.R. 1970, but yet you 

step away from that in your statement including indicating that 

the Administration did not participate in the drafting of Water 

Rights Settlement embodied in H.R. 1970 and does not support a 

water settlement under these circumstances. What exactly is the 

role of the Administration when it comes to Indian water settlements? 

Let me welcome all the witnesses. First of all, our acting 

Ranking Member, Mr. Lamborn, and Representative Heller and, I 

believe, Representative Mitchell. I welcome our guests to the Subcommittee today. Congressman Tom Udall is not here yet. I do not 

see him. Congressman Harry Mitchell is here. Thank you, and Representative Raul Grijalva who will be joining us, and thank you for 

those that are here. 

I ask unanimous consent that Representatives Harry Mitchell 

and Tom Udall be allowed to sit on the dais with the Subcommittee 

this morning to participate in Subcommittee proceedings, and withVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
3 

out objection so ordered. I will begin the meeting with a brief statement. I am sorry. My opening statement I have given, and I would 

now recognize the Ranking Member, Mr. Lamborn, for his statement. 

[The prepared statement of Mrs. Napolitano follows:] 

Statement of The Honorable Grace F. Napolitano, Chairwoman, 

Subcommittee on Water and Power 

Today’s hearing will consider two significantly different, yet major issues of importance to the future of water in the Western United States. We will hear testimony on H.R. 2515, a bill that will put in place a proactive approach to the preservation of habitat while ensuring continued water deliveries in the lower Colorado 

River Basin; and also on H.R. 1970, legislation that will implement the water settlement agreement between the Navajo Nation in New Mexico and the United 

States. 

Both bills address critical water topics that can no longer be overlooked or ignored. Habitat restoration and preservation concerns now have a seat at the table, 

as they should. And Indian water rights, although created and vested as of the date 

of the reservation, were often left behind as major water deals to benefit non-Indians were developed in decades past. 

I support the general premise of both bills but I do have a number of questions. 

With regard to H.R. 2515, I am concerned that the 50 year term of the MSCP 

agreement proposed in this legislation may be too long. Nobody can predict what 

the Lower Colorado River might look like fifty years from now. I am also concerned 

that some of the limitations in the bill effectively immunize water users from future 

changes to the Endangered Species Act. 

H.R. 1970, introduced by our colleague from New Mexico, Congressman Tom 

Udall, is certainly the most significant Indian water rights legislation to come before 

this Subcommittee since 2005, when we enacted the Arizona Water Rights Settlement Act. This legislation includes a number of provisions that have drawn criticism 

from the Administration, and I hope our questioning of witnesses this morning will 

help to resolve some of these points. Commissioner Johnson, I am particularly concerned that the Bureau of Reclamation has been very closely involved in many of 

the projects contemplated in H.R. 1970, but you step away from that in your statement, indicating that the Administration did not participate in the drafting of the 

water rights settlement embodied in H.R. 1970, and does not support a water settlement under these circumstances. What exactly is the role of the Administration 

when it comes to Indian water settlements? 

We welcome our witnesses this morning and look forward to their testimony. I 

am pleased to now yield to my friend from Colorado Springs, the acting Ranking 

Minority Member of our Subcommittee, Congressman Doug Lamborn, for any statement he may have. 

STATEMENT OF THE HON. DOUG LAMBORN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO 

Mr. LAMBORN. Thank you, Madame Chairwoman, and it is good 

to be here for this subcommittee meeting this morning. I will be 

standing in for a short while for the Ranking Member, Cathy 

McMorris Rodgers of Washington State, and in a minute I am 

going to introduce the sponsor of the bill, and ask him to actually 

take over for this portion of the hearing because it is his bill that 

we will be considering, Dean Heller of Nevada. 

But these bills being considered today try to resolve water issues 

in the Colorado River Basin. Throughout the west water and power 

users have legitimately asked for certainty in their supplies. Certainty has been hard to find with an ongoing drought and with constant litigations surrounding the Endangered Species Act. However, Mr. Heller and Mr. Mitchell’s bill provide for certainty and 

Endangered Species protection at the same time. It proves that enVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00007 Fmt 6633 Sfmt 6602 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
4 

vironmental protection and the water needs for people can truly be 

met together outside of the courts. 

I also noticed that Mr. Udall’s bill attempts to provide water for 

his constituents. I commend my colleague from New Mexico for introducing his bill. However, I am concerned that neighboring states 

are not completely on board with this effort, and that the Federal 

government was not party to the agreement referenced in the bill. 

But I look forward to hearing from my colleagues and today’s 

witnesses about these important bills, and at this point I would 

like to turn, with the permission of the Chairwoman, things over 

from my perspective to the member from Nevada, Dean Heller. 

Mrs. NAPOLITANO. Please. 

STATEMENT OF HON. DEAN HELLER, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF NEVADA 

Mr. HELLER. Thank you. First of all, thank you, Madame Chairwoman, for holding this hearing. I thank acting Ranking Member— 

I will be the acting Ranking Member here in a few minutes—for 

the hearing today on the Lower Colorado Multi-Species Conservation Act. I introduced this legislation to authorize the Department 

of Interior to manage and implement the Lower Colorado River 

Multi-Species Conservation Program and authorize sufficient funding to meet the program’s obligations without creating any new 

Federal spending. 

The Colorado River water and power resources supplies more 

than 20 million people in the lower basin states of Nevada, Arizona 

and California. The Department of the Interior agencies as well as 

various non-Federal stakeholders and water and power agencies 

along the Colorado River formed a multi-regional partnership to 

develop the Lower Colorado River Multi-Species Conservation Program. 

The goal of this program is to protect sensitive, threatened and 

endangered fish and wildlife species and their habitat while providing sufficient environmental benefits and reliable water and 

power supply along the Colorado River. This legislation achieves 

several necessary steps to further codify the responsibilities of this 

program and the roles of the various stakeholders. 

The legislation provides a specific authorization of appropriations 

sufficient for the Secretary to meet specified obligations under the 

program documents. Obtaining specific authorization assures the 

long-term availability of the funding. The legislation provides continuity of the program by ensuring that it is fully implemented, enforceable, and that it remains viable for the next 50 years. 

Finally, this legislation enjoys the support from members of the 

Congress from Nevada, Arizona and California, demonstrating that 

this program is important to the long-term water supply needs of 

all three states. Again, Madame Chairwoman and Ranking Member, thank you for holding this important hearing. I look forward 

to the testimony from our witnesses. I want to welcome everybody 

that is here. Thank you very much for your hard work and effort 

so that we can be here today and those in the audience who also 

participated in the hearings to produce this program. So I will yield 

back the balance of my time. Thank you. 

5 

Mrs. NAPOLITANO. Thank you, sir, for your opening statement, 

and now I would like to recognize Mr. Mitchell for his opening 

statement. 

STATEMENT OF THE HON. HARRY MITCHELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA 

Mr. MITCHELL. Thank you, Madame Chair. I would like to thank 

you and members of this subcommittee for holding today’s hearing 

on House Bill 2515, the Lower Colorado River Multi-Species Conservation Program Act, and for allowing me to take part in it. I 

also would like to thank Representative Dean Heller, and I am 

grateful for his partnership on this important piece of legislation, 

and finally I want to thank a distinguished former member without 

whose help H.R. 2515 would not be before us today, and that is 

Congressman Jay Rhodes. He has been a tireless advocate, and I 

am grateful for his efforts. 

From the start, H.R. 2515 has been a bipartisan bill, and to me 

that is the best way to legislate. This bill has been more than a 

decade in the making, and I believe that it is a worth bipartisan 

compromise. The bill provides for a long-term, comprehensive, cooperative program to protect 26 endangered, threatened and sensitive 

species on the lower Colorado River, and to provide assurances to 

the affected water and power agencies of Arizona, California and 

Nevada, that their operations may continue upon compliance with 

the requirements of this program. 

The program will create over 8,100 acres of riparian, marsh and 

backwater habitat for protected species and include plans for the 

rearing and stocking of more than 1.2 million fish to augment populations of two endangered fish covered by this program. The program will operate on and around the Colorado River from Lake 

Mead to the U.S./Mexico border but like most water issues related 

to the Colorado, its effects will be felt throughout Arizona and 

across the southwest United States. 

The program’s cost will be divided 50-50 between the Federal 

government and the non-Federal participants. California participants will pay 50 percent of the non-Federal share, and Arizona 

and Nevada will participate and will pay 25 percent of the nonFederal share. I look forward to today’s hearing and to continue 

working with this committee on this important piece of legislation, 

and I yield back the balance of my time. Thank you. 

[The prepared statement of Mr. Mitchell follows:] 

Statement of The Honorable Harry Mitchell, a Representative in Congress 

from the State of Arizona, on H.R. 2515 

Thank you Madam Chairwoman. 

I would like to thank you and the members of this subcommittee for holding today’s hearing on H.R. 2515, the Lower Colorado River Multi-Species Conservation 

Program Act—and for allowing me to take part in it. 

I would also like to thank Rep. Dean Heller. I am grateful for his partnership on 

this important legislation. 

Finally, I want to thank a distinguished former Member—without whose help 

H.R. 2515 would not be before us today: Congressman Jay Rhodes. He has been a 

tireless advocate, and I am grateful for his efforts. 

From the start, H.R. 2515 has been a bipartisan bill, and to me that is the best 

way to legislate. This bill has been more than a decade in the making, and I believe 

it is a worthy, bipartisan compromise. 

6 

The bill provides for a long-term, comprehensive, cooperative program to protect 

26 endangered, threatened and sensitive species on the Lower Colorado River—and 

to provide assurances to affected water and power agencies of Arizona, California 

and Nevada that their operations may continue upon compliance with the requirements of this program. 

The program will create over 8100 acres of riparian, marsh and backwater habitat 

for protected species, and includes plans for the rearing and stocking of more than 

1.2 million fish to augment populations of two endangered fish covered by the program. 

The program will operate on and around the Colorado River from Lake Mead to 

the U.S.-Mexico border, but like most water issues relating to the Colorado, its effects will be felt throughout Arizona, and across the southwestern United States. 

The program’s cost will be divided 50-50 between the federal government and the 

non-federal participants. California participants will pay 50 percent of the non-federal share, and Arizona and Nevada participants will pay 25 percent of the non-federal share. 

I look forward to today’s hearing, and to continuing to work with this committee 

on this important legislation. 

Mrs. NAPOLITANO. Thank you, sir. Mr. Udall. 

STATEMENT OF THE HON. TOM UDALL, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF NEW MEXICO 

Mr. UDALL. Thank you very much, Chairwoman Napolitano, and 

I guess Ranking Member McMorris Rodgers is going to be here at 

some point. Thank you for holding this hearing on H.R. 1970, the 

Northwestern New Mexico Rural Water Projects Act. This important legislation will have a lasting impact on my constituents in 

northwestern New Mexico, the Jicarilla Apache Nation and the 

Navajo Nation. 

The bill addresses the basic need for water and sanitation that 

I believe is the right of every individual and which are long overdue in this region of New Mexico. It also expressly ratifies the 

Navajo Nation’s water rights and eliminates uncertainty over how 

those rights may impact others. I am pleased to have had the opportunity to participate in the careful negotiations that led to the 

introduction of this bill, and I am thankful for your interest in 

building on these efforts to make these projects a reality. 

Water tenure has long been a volatile issue in the arid southwest. As communities in the region have grown, the strain on 

water resources has increased. It is the responsibility of the basin 

states and the southwestern tribal nations to formulate working 

agreements on how this very precious resource is utilized. The 

Northwestern New Mexico Rural Water Projects Act will ratify one 

such accord, the San Juan River Settlement Agreement. 

This agreement was signed by the Navajo Nation and the State 

of New Mexico on April 19, 2005, and was the culmination of years 

of work. The settlement agreement seeks to provide for the development of a rural water system to address the water needs of numerous New Mexicans, many of them members of the Navajo Nation and the Jicarilla Apache Nation. H.R. 1970 would ratify this 

agreement, thereby resolving the water rights of the Navajo Nation, the largest Federally recognized tribe in the United States. 

It would also provide a water supply for Gallup, New Mexico, as 

well as recognize and authorize existing uses of the San Juan River 

Basin Water. In exchange for relinquishing some of their claims to 

water from the San Juan River Basin, the Navajo Nation will benVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00010 Fmt 6633 Sfmt 6602 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
7 

efit from water development projects including the Navajo Gallup 

project and the Navajo Nation Municipal Pipeline. 

This much needed infrastructure will allow for efficient and reliable municipal and agricultural water deliveries. Additionally, the 

projects will be implemented in a manner consistent with environmental laws and existing agreements which ensure compliance 

with the ESA. Incredibly, even now in the 21st century more than 

70,000 Navajos must still haul water daily for residential use. 

These water projects will go a long way toward rectifying this unacceptable situation. 

I understand that some have raised concerns regarding provisions in the bill relating to New Mexico’s apportionment of the Colorado River. I am pleased that in the late spring of 2006, the upper 

Colorado River Basin and Commission, which includes representatives from all upper basin states unanimously endorsed the Navajo 

Water Settlement. This river is of vital importance to populations 

throughout the southwest. 

I am well aware that stipulations in the bill relating to the Colorado River have the potential to impact all of the basin states. It 

is my hope that the testimony you will hear today from the distinguished panel will bring valuable insight on this issue and help 

allay those concerns. Please know I am committed to working with 

the Subcommittee and the Subcommittee Chairman to ensure that 

this legislation is in compliance with existing compacts among 

basin states. 

The Navajo Nation and the State of New Mexico and many other 

residents of northwestern New Mexico put a tremendous amount of 

effort into reaching an agreement that will provide a more secure 

future for many vulnerable communities. For years these groups 

have worked to finalize this agreement. The next step necessary is 

passing legislation to finalize the agreement and begin the implementation of long overdue water distribution projects. 

Senator Bingaman, Senator Domenici and I have introduced 

companion legislation to bring about this step, and I look forward 

to working with all of you to bring this hard work to fruition, and 

let me thank once again the Chairwoman. I know she is a real advocate of the Colorado River and California’s water rights, and I 

know she very much understands these issues and I am very excited about her bringing her attention to these issues. Thank you, 

Madame Chair, and I yield back. 

Mrs. NAPOLITANO. Thank you, sir. I appreciate the comments, 

and we will proceed to hear from our witnesses. We have two panels today. The first panel will testify on H.R. 2515, and the second 

panel will testify on H.R. 1970. Each one of the panelists will be 

introduced just before they testify. Once the testimony is concluded 

we will begin a question and answer period of those witnesses prior 

to proceeding to the next panel. 

All your prepared statements, witnesses, will be entered into the 

record, and you are asked to summarize your high points so as not 

to waste time because if you read sometimes it takes longer and 

you cannot get to the meat of what you are trying to bring to this 

committee, and please limit your remarks to five minutes, the little 

timer, and I do hold people to five. 

8 

We will be using the timer of course. It applies to questions also. 

Five minutes of questions and answers from each of the members 

will be allowed. If there is time, we will have an additional second 

round or more as necessary. I would like to begin with our first 

panel to testify on H.R. 2515, the Lower Colorado River Multi-Species Conservation Act. 

First we have Robert Johnson, Commissioner of Bureau of Reclamation. Welcome again, Commissioner, and you know you are on 

the hot seat again. Two, Susan Bitter Smith, President of the Central Arizona Project Board of Phoenix. Welcome. George Caan, 

Chairman of the Lower Colorado River Multi-Species Conservation 

Program from Las Vegas, Nevada. Welcome. 

Gerald Zimmerman, Executive Director of the Colorado River 

Board of California in Glendale, California. Welcome. And finally, 

Kara Gillon, Senior Staff Attorney with Defenders of Wildlife in Albuquerque, New Mexico. If you will start, Mr. Johnson, we will 

begin with you. 

STATEMENT OF ROBERT JOHNSON, COMMISSIONER, 

BUREAU OF RECLAMATION, WASHINGTON, D.C. 

Mr. JOHNSON. Thank you, Madame Chairwoman. It is a pleasure 

to be here to address you and members of the Subcommittee on 

this bill. While the Department of Interior has clear authority to 

administer this program under existing statutes we also understand the interests of our partners in seeking this legislation. The 

Department supports the Lower Colorado River Multi-Species Conservation Program as well as the intent of H.R. 2515 to further 

this program. 

There are, however, some concerns about language in sections 2, 

4[b], 5[c] and 5[d] of the bill, and I will quickly summarize our concerns in that regard. Quickly I would just say that the MSCP program is a very important program for the three states that are delivered water supplies from the Colorado River. There are millions 

of people and hundreds of thousands of acres of irrigated farmland 

that are dependent on the river, and the multi-species plan provides certainty for the long-term use of those important water supplies. 

Quickly to summarize the concerns that we have. First, section 

2 of the bill provides a definition of the lower Colorado River. That 

definition that is in the bill does not exactly coincide with the definition that is included in some of the program documents. We believe that the bill ought to be modified to be consistent with those 

documents. We think that this is a minor technical issue but nevertheless something that can cause confusion in the future if we have 

different definitions. 

Next the Administration cannot support language in section 4[b] 

of this bill allowing the Secretary to invest appropriated monies 

that are not required to meet current program expenditures. In addition, we are concerned about section 5[c] which addresses judicial 

review of the program documents. We are advised that this provision could expand Federal litigation exposure in significant respects and set unacceptable precedents for the United States. 

Last, section 5[d] which seeks an explicit exemption from the 

Federal Advisory Committee Act is not necessary as the program 

9 

was determined by the Director of the U.S. Fish and Wildlife Service to be an ecosystem recovery and implementation team pursuant 

to the ESA, and as a result is already exempt from that Act. 

We appreciate that there has been some progress in discussions 

with our partners on section 5[c] of the Act, and we look forward 

to continuing to try to work through these issues with our partners. The lower Colorado River is a critical resource to citizens of 

the west. Maintaining compliance with the ESA, and avoiding 

water supply conflicts that we have seen in other basins in the 

west is critical to the Department of Interior. 

Reclamation will continue to support the Lower Colorado MultiSpecies Conservation Program and looks forward to working with 

the Subcommittee and the bill’s sponsors on this issue. Madame 

Chairwoman, thank you again for allowing me to testify. This concludes my oral remarks. 

[The prepared statement of Mr. Johnson follows:] 

Statement of Robert Johnson, Commissioner, U.S. Bureau of Reclamation, 

U.S. Department of the Interior, on H.R. 2515 

Madam Chairwoman and members of the Subcommittee, my name is Robert 

Johnson and am here today to present the views of the Department of the Interior 

on H.R. 2515, a bill to authorize a habitat conservation program on the lower Colorado River in the States of Arizona, California, and Nevada. 

H.R. 2515 authorizes the Lower Colorado River Multi-Species Conservation Program (LCR MSCP) and addresses issues associated with implementation of the program, including Colorado River water use, investment of appropriated funds, and 

the enforceability of program documents. The Lower Colorado River is a critical resource to citizens of the southwest. Maintaining compliance with the Endangered 

Species Act and avoiding water supply conflicts that have been occurring in other 

areas of the West is critical to the Department. The Department supports the LCR 

MSCP as well as the intent of H.R. 2515 to further this program. However, the Department remains concerned about language in Section 2, 4(b), 5(c), and 5(d), which 

I will discuss below. 

The LCR MSCP was developed through a collaborative partnership with State 

leaders, local stakeholders and the Administration. This innovative program addresses the needs of threatened and endangered fish and wildlife on the lower Colorado River while assuring greater reliability of water deliveries and hydropower production. By meeting the needs of fish and wildlife listed under the Endangered Species Act, as well as preventing the need to list additional species, the plan provides 

greater certainty of continued water and power supplies from the river for Nevada, 

California and Arizona—and is designed to allow future water transfers within or 

among water users for a 50-year period. 

Reclamation began work to develop the LCR MSCP in 1997 and the program was 

formally approved and adopted by Secretary Norton in 2005. Under existing authorities, Reclamation has been implementing activities that are similar in nature 

to those described in this program since 1997 when the U.S. Fish and Wildlife Service issued a Biological Opinion for southwestern willow flycatcher, bony tail chub, 

Yuma clapper rail and razorback sucker fish. In 2001, Reclamation adopted interim 

Surplus Guidelines that define when water operations can provide surplus water to 

water users in the Lower Colorado River Basin, and the Biological Opinion for that 

action is being implemented through the LCR MSCP. With these and other actions, 

Reclamation has been meeting the requirements of the Endangered Species Act 

(ESA) for over a decade. 

Reclamation has spent a total of $9.5 million in FY2004 and FY2005, and spent 

$13 million in FY2006 from both Federal and non-Federal sources pursuant to the 

Program’s Funding and Management Agreement with non-Federal entities. The 

LCR MSCP Steering Committee supports a budget of over $16 million for FY 2007. 

In addition to establishing over 270 acres of new habitat along the Colorado River, 

Reclamation has stocked 46,079 razorback suckers and 14,836 bony tail chub into 

the lower Colorado River since 2004. A significant amount of money has been spent 

on the research and monitoring needed to develop a sound scientific foundation for 

this 50-year program. Accomplishment reports for FY2004 and FY2005 have been 

approved by the MSCP Steering Committee, reviewed by the U.S. Fish and Wildlife 

10 

Service, and found to be in compliance with the LCR MSCP ESA Section 10 Permit. 

The FY2006 report has been approved by the Steering Committee and U.S. Fish and 

Wildlife Service. All reports can be found on Reclamation’s website at 

www.lcrmscp.gov. In Reclamation’s FY2008 budget, which is awaiting Congressional approval, $7 million has been identified from Federal funding for the program, with a $7 million 

match from non-Federal partners. 

Since presenting testimony on H.R. 5180 last year, the Department is pleased to 

report progress toward resolving issues surrounding section 3(b). As written, this 

Section would direct the Secretary to enter into an agreement with the States of 

Arizona, California and Nevada providing for the use of Colorado River water specifically for habitat creation and maintenance purposes. The Department believes 

that through existing contract terms, willing seller transactions, and current policies, Reclamation can utilize Colorado River (and non-Colorado River) water to implement the program. However, Reclamation has made progress with our funding 

partners in the Lower Basin States to develop an agreement acceptable to all parties on the use of Colorado River water for program purposes. Such an agreement 

could facilitate program implementation, and we look forward to continuing productive efforts with our partners on this proposed agreement. 

We do have a couple of concerns with provisions contained in H.R. 2515. The geographic definition of the Lower Colorado River in section 2 should be clarified to 

match that contained in the MSCP Program Documents. The Administration cannot 

support the language in section 4(b) of this bill allowing the Secretary to invest appropriated moneys that are not required to meet current program expenditures. Investing appropriations provides additional monies to finance a governmental purpose outside of the normal appropriations process. 

We are also concerned about section 5(c), which addresses judicial review of program documents. We note that this provision has been modified from the language 

introduced in the last session of Congress, and that language has been added clarifying that the United States would not be liable for claims for money damages. Nevertheless, we have been advised by the Department of Justice and we are concerned 

that this provision could expand Federal litigation exposure in significant respects 

and open the door for judicial intrusion into administrative decision making. We 

would appreciate the opportunity to continue to work with the committee to address 

our concerns regarding section 5(c). 

Section 5(d) seeks an explicit exemption from the Federal Advisory Committee 

Act. The Department believes that this exemption is not necessary as the program 

was determined by the Director of the U.S. Fish and Wildlife Service to be an Ecosystem Recovery and Implementation Team (ECRIT) pursuant to section 4(f)(2) of 

the ESA, thereby making the LCR MSCP Steering Committee exempt. Therefore, 

we believe section 5(d) is superfluous and we recommend deleting it. 

The Department already has clear authorities to administer this program under 

existing statutes, and Reclamation began actively implementing the full LCR MSCP 

program in 2005. Through implementation of this program, the likelihood of a water 

conflict on the lower Colorado River is reduced. 

The Department supports the LCR MSCP and will continue to work with interested stakeholders that seek to enhance the program. Thank you for the opportunity 

to comment on this legislation. We look forward to working with you on the various 

concerns we have. I am happy to take any questions. 

Mrs. NAPOLITANO. Thank you, sir. Ms. Susan Bitter Smith. 

STATEMENT OF SUSAN BITTER SMITH, PRESIDENT, 

CENTRAL ARIZONA PROJECT BOARD, PHOENIX, ARIZONA 

Ms. BITTER SMITH. Madame Chairwoman, Congressman Heller, 

Congressman Mitchell, Congressman Udall, I too am pleased to be 

here on behalf of the Central Arizona Water Conservation District. 

Mrs. NAPOLITANO. Can you pull the mic a little closer please? 

Ms. BITTER SMITH. I will do that. Usually my children say they 

can hear me from any distance in the room. The CAP, as you know, 

is operated by the Central Arizona Water Conservation District, 

and we have an aqueduct system that stretches 330 miles from 

Lake Havasu all the way along the Colorado River to central and 

southern Arizona. 

11 

In 1994, users of water and power from the lower Colorado River 

began to become concerned about our ability to continue to rely on 

the river’s resources in the face of growing concerns about the endangered species, and as a result we have now spent the last 10 

plus years working together with Federal and non-Federal participants to complete the documents now to put the Lower Colorado 

River Multi-Species Conservation Program into place. 

The Secretary approved the program in April of 2005, and of 

course in August of that year the White House recognized the program as an exemplary environmental initiative. Fifty Federal and 

non-Federal entities have come together to craft and fund a program that protects 26 endangered, threatened and sensitive species, and provides for the acquisition, creation and maintenance of 

over 8,000 acres of high quality habitat and then provides for the 

rearing and stocking of hundreds of thousands of two species of endangered fish. 

Before the Federal government would approve the program, however, the non-Federal participants were required to agree unconditionally to fund half of the total program, which is a cost of about 

$626 million, indexed for inflation over 50 years. The CAP of course 

is one of those funding mechanisms. In return for this commitment, 

non-Federal water and power users were granted a Federal permit 

under the ESA Act that allows for the essential functions as water 

and power providers to continue as long as we comply with the program requirements. 

The Federal government has agreed to fund the 50 percent of 

program costs, and we do appreciate that commitment but we believe it is absolutely necessary that appropriations for the Federal 

share be explicitly authorized by Congress, hence the reason for 

this Act, particularly since the program must continue to be carried 

on long after all of us are out of office. 

H.R. 2515 provides necessary authorization for the Federal 

share of program costs and brings certainty and stability to the 

program in other ways. First, it requires Congress to authorize the 

Secretary to manage and implement the program, and there are 

documents that all of the parties have prepared and signed evidencing a commitment to the program. 

Second, the bill directs and authorizes the Secretary to enter into 

an agreement with the lower basin states about how we will provide water for the MSCP. Without this explicit authorization, the 

law of the river may preclude us and other water providers from 

some of the water management activities we believe are very essential and need to be necessary. 

The provisions of the bill also help protect expectation of the parties. The CAP strongly supports H.R. 2515, and we very much appreciate the leadership by the Arizona, California, Nevada delegations in bringing the bill to this point in the process. We especially 

thank Mr. Heller for his sponsorship and you, Madame Chairwoman, for allowing this bill to come to committee. I especially 

want to commend the Arizona delegation and my own Member of 

Congress, Mr. Mitchell, for his leadership on this issue. 

H.R. 2515 is critical to our ability to continue to provide our 

water services to our customers. CAP is the lifeline for the State 

12 

of Arizona, and we want to make sure that continues to be the 

case. We urge the Subcommittee to approve this bill. 

[The prepared statement of Ms. Bitter Smith follows:] 

Statement of Susan Bitter Smith, President, Board of Directors, 

Central Arizona Water Conservation District, on H.R. 2515 

I am pleased to present testimony on behalf of the Central Arizona Water Conservation District (‘‘CAWCD’’) in support of H.R. 2515, the Lower Colorado River 

Multi-Species Conservation Program Act. H.R. 2515 protects and implements the 

Lower Colorado River Multi-Species Conservation Program (‘‘MSCP’’). The MSCP is 

a comprehensive, cooperative effort among 50 federal and non-federal entities in Arizona, California and Nevada to protect 26 endangered, threatened and sensitive 

species along the Lower Colorado River and to provide assurances to the non-federal 

entities involved that their essential water and power operations on the River may 

continue if they comply with the Program’s requirements. The participants in the 

Program include The Metropolitan Water District of Southern California, the Southern Nevada Water Authority and the Central Arizona Project. 

CAWCD is the Arizona political subdivision responsible for operating the Central 

Arizona Project (‘‘CAP’’), and is the underwriter of Arizona’s share of the costs of 

the MSCP. The CAP is a massive water delivery project, constructed under the authority of the Colorado River Basin Project Act of 1968, to enable Arizona to make 

full use of its Colorado River entitlement. In a normal water supply year, the CAP 

will deliver about 1.5 million acre-feet of Colorado River water to the citizens of Arizona, at the rate of 3,000 cubic feet of water per second, almost two billion gallons 

per day. The CAP is the largest single source of renewable water supplies in the 

State of Arizona, serving 80 percent of the State’s water users and taxpayers, including the Phoenix and Tucson metropolitan areas. 

CAWCD strongly supports H.R. 2515 because the bill assures continued compliance by the United States with the requirements of the MSCP. That, in turn, provides protection to the non-federal participants in the Program, who, like CAWCD, 

have agreed to provide substantial amounts of non-federal monies for the conservation of endangered species in return for receiving a permit under the Endangered 

Species Act for their water and power operations. 

The Secretary of the Interior approved this 50-year conservation initiative on 

April 2, 2005. The overall Program costs, $626 million, will be adjusted for inflation, 

with the three lower basin states paying 50 percent of the costs and the federal government paying 50 percent. Of the states’ share, Arizona and Nevada will each pay 

25 percent, while California will pay 50 percent. In return for their funding commitments, the non-federal participants have received a 50-year permit, issued by the 

U.S. Fish and Wildlife Service under Section 10 of the Endangered Species Act, 

which authorizes their existing and future water and power operations to continue. 

All of the Arizona participants have made a financial commitment to the MSCP, but 

CAWCD has agreed to guarantee payment of Arizona’s share of the Program costs. 

Although the MSCP is already in effect, this bipartisan legislation has been introduced by Congressman Dean Heller of Nevada to protect the substantial financial 

commitments that the non-federal parties are making to species protection. The bill 

specifically authorizes federal appropriations to cover the federal share of the Program costs, directs the Interior Secretary to manage and implement the Program 

in accordance with the underlying Program Documents, and provides a waiver of 

sovereign immunity to allow the non-federal parties to enforce the agreements they 

have entered into with the federal agencies, should that become necessary. The bill 

does not allow money damages. 

The bill is co-sponsored by Congressmen Harry Mitchell, Trent Franks, John 

Shadegg and Rick Renzi of Arizona, Congressman Jon Porter and Congresswoman 

Shelley Berkley of Nevada, and Congressmen Ken Calvert and George Radanovich 

of California. A companion bill has been introduced in the Senate (S. 300) by Senators Jon Kyl of Arizona, Dianne Feinstein of California, and Harry Reid and John 

Ensign of Nevada. Since the time that similar legislation was introduced last year, 

two significant developments have occurred. First, subject to final review and approval within the Interior Department, the non-federal parties have reached agreement with the United States on an agreement to provide Colorado River water for 

MSCP purposes, as authorized by Section 3(b) of the bill. Second, Section 5(b) of 

the bill, which relates to the impact of future legislative actions on the MSCP, has 

been modified and narrowed significantly to meet the concerns of some members. 

The MSCP is a worthy and important program for protection of endangered species. It provides for the creation of over 8,100 acres of riparian, marsh and backVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
13 

water habitat for the species covered by the Program, and includes plans for the 

rearing and stocking of over 1.2 million fish to augment populations of two endangered fish covered by the Program. The MSCP also provides for maintenance of existing, high-quality habitat, and a research, monitoring and adaptive management 

effort to ensure that Program elements are effective in helping covered species. At 

the White House Conference on Cooperative Conservation in August 2005, the 

MSCP was recognized as an ‘‘Exemplary Initiative.’’ Implementation of the MSCP 

is critical to the long term needs of those of us in the southwest that depend on 

the Lower Colorado River for a major portion of their water and power. As the Secretary said in her Record of Decision approving the Program— 

‘‘The importance of the Colorado River to the southwestern portion of the 

United States cannot be overstated: the Colorado is the lifeblood of the 

southwest. The Colorado River provides water and power to over 20 million 

people (in such cities as Los Angeles, San Diego, Las Vegas, Phoenix and 

Tucson), irrigates over 2 million acres, and generates up to 10 billion kilowatt hours of electricity annually.’’ 

The MSCP represents a fifty-year commitment by all of the parties involved. It 

is essential that that commitment be fully and faithfully met. H.R. 2515 will help 

ensure that that occurs. 

Statement of Susan Bitter Smith, President, Board of Directors, 

Central Arizona Water Conservation District, on H.R. 1970 

I am pleased to present this statement on behalf of the Central Arizona Water 

Conservation District (‘‘CAWCD’’) regarding H.R. 1970, the Northwestern New 

Mexico Rural Water Projects Act. CAWCD is the Arizona political subdivision responsible for operating the Central Arizona Project. The Central Arizona Project is 

a massive water delivery project, constructed under the authority of the Colorado 

River Basin Project Act of 1968, to enable Arizona to make full use of its Colorado 

River entitlement. In a normal water supply year, the Central Arizona Project will 

deliver about 1.5 million acre-feet of Colorado River water to the citizens of Arizona, 

at the rate of 3,000 cubic feet of water per second, almost two billion gallons per 

day. The Central Arizona Project is the largest single source of renewable water 

supplies in the State of Arizona, serving 80 percent of the State’s water users and 

taxpayers, including the Phoenix and Tucson metropolitan areas. 

CAWCD cannot support this bill as introduced because (1) it fails to resolve the 

Navajo Nation’s claims to the Lower Colorado River and Little Colorado River in 

Arizona and (2) it fails to resolve litigation filed by the Nation challenging Interior 

Department initiatives that are vital to the Central Arizona Project and other Colorado River water users in the Lower Basin. The legislation also fails to address critical issues related to its potential impact on the Law of the Colorado River. All of 

these matters must be addressed before the bill is permitted to move forward. 

This bill would authorize a settlement of the water rights claims of the Navajo 

Nation to the San Juan River in New Mexico and also provide funding for projects 

to deliver San Juan water to Window Rock and Gallup. The San Juan River is a 

tributary to the Colorado River, and the bill affects the accounting for Colorado 

River water required by the 1922 Colorado River Compact and the United States 

Supreme Court’s 1964 Decree in Arizona v. California, the decision that confirmed 

that Arizona is entitled to 2.8 million acre feet of water each year from the Lower 

Colorado River. Most of that water is delivered to central and southern Arizona 

through the Central Arizona Project. While the New Mexico bill would affect Arizona’s Colorado River entitlement, it fails to resolve the claims of the Navajo Nation 

to Arizona’s water supplies or to require, as it should, that those claims be settled 

before the Nation receives the benefits of any water rights settlement. 

The Navajo Nation has asserted that it has rights to water from the Colorado 

River that are superior to the rights of the Central Arizona Project. The Nation has 

sued the United States in federal district court in Phoenix in an effort to compel 

the Secretary of the Interior to assert those rights on the Nation’s behalf. Unless 

and until the Secretary takes steps to resolve the Nation’s claims to the Colorado 

River, the Nation seeks to stop the Secretary from implementing important programs put in place to better manage the water supplies of the Lower Colorado River 

for the benefit of the Central Arizona Project and others. 

In a separate action, the Navajo Nation has also sought to prevent the required 

court approval of another Indian water rights settlement that is vital to the citizens 

of central Arizona, a comprehensive water rights settlement with the Gila River 

Indian Community. That settlement, which was decades in the making, was authorized by the Arizona Water Settlements Act of 2004, but if the Navajos succeed in 

14 

1The IBWC was established under the 1944 U.S.-Mexico Water Treaty between the United 

States and Mexico regarding the Colorado River and is made up of representatives of the Republic of Mexico and the U.S. State Department. 

their challenge, all of the Arizona water settlements authorized by that act, including the Gila River settlement, will fail. Since the water rights of the Navajo Nation 

are not affected by the Gila River settlement, as a lower court has already found, 

one can only conclude that the Navajo Nation is seeking to hold the Gila River settlement hostage until its own water rights claims are resolved. 

These actions by the Navajo Nation lead us to conclude that we could support authorization of a New Mexico settlement with the Navajo Nation only if an Arizona 

settlement with the Nation is also concluded and included in the authorizing legislation. While New Mexico may object to this, it shouldn’t. After all, New Mexico demanded and received significant benefits, in the form of project authorizations and 

money for that state, in the Arizona Water Settlements Act of 2004. 

From a public policy perspective, an Arizona settlement of the Navajo Nation’s 

water rights claims should proceed hand in glove with a New Mexico settlement. 

As it stands, the New Mexico bill fails to deal comprehensively with the Navajos’ 

claims to the river systems that cross or border the Navajo Reservation. The Navajo 

Reservation is the largest Native American reservation in the United States. It occupies parts of three states, but by far the largest part of the Reservation, as well 

as the greatest share of the Reservation population, is situated in Arizona. Within 

Arizona, the northwestern portion of the Navajo Reservation is near the mainstream 

of the Lower Colorado River, and the Little Colorado River traverses the southern 

portion of the Reservation. If anything, priority should be given to settlement of the 

Nation’s claims to the waters of these rivers. Including a settlement of the Nation’s 

Arizona claims in the New Mexico bill would go a long way toward fixing the public 

policy problems associated with the current version of this legislation. 

CAWCD has long supported the comprehensive settlement of Indian water rights 

claims. Our organization has participated in a number of such settlements, including most recently, the settlement of the claims of the Gila River Indian Community, 

the largest Indian water rights settlement in Arizona’s history. While successfully 

crafting a settlement agreement is never easy, we are fully committed to doing the 

hard work necessary to achieve an Arizona settlement with the Navajo Nation, and 

to accomplishing that in a timely way, so that congressional authorization of an Arizona settlement can be included in what is now a New Mexico only bill. 

We look forward to the opportunity to work with you, the State of New Mexico, 

and the Navajo Nation to settle the claims of the Navajo Nation to the San Juan 

and the Lower and Little Colorado River basins, and to prepare a comprehensive 

settlement act that addresses the needs of all affected parties. 

Response to questions submitted for the record by Susan Bitter Smith, 

President, Board of Directors, Central Arizona Water Conservation 

District, on H.R. 2515 

(State Representatives) Has there been any effort to work with entities on 

the other side of the Mexican border to ensure successful recovery for the 

river system, not just the U.S. side? 

Answer: Yes. 

The United States is authorized by Section 8 of the Endangered Species Act to 

work cooperatively with other nations on species conservation efforts. The International Boundary and Water Commission 1 has adopted Minute 306 to the 1944 

Mexican Water Treaty in order to establish a framework for cooperation between 

the United States and Mexico in the preservation of the riparian and estuarine ecology of the Colorado River in Mexico. These efforts are on-going and will continue. 

Additionally, independent of these efforts, the Central Arizona Water Conservation District has been working with other stakeholders, including environmental 

groups, on a plan to operate the Yuma Desalting Plant (‘‘YDP’’) while protecting the 

area commonly known as the Mexican Delta. The group working on this matter 

issued a white paper in 2005 that contains a blue print for operating the YDP while 

protecting the habitat contained in the Cienega de Santa Clara in Mexico. 

The MSCP is an effort to make the operations of the Lower Colorado River within 

the United States comply with the Endangered Species Act. The needs of endangered species in Mexico are being addressed by other programs outside of the 

MSCP. 

15 

(State Representatives) Is it possible that neglect of habitat on the Mexican 

side could wipe out attempts by the MSCP to stabilize habitat and protect 

and recover species? 

Answer: No. 

The habitat needs of the species covered by the program were assessed independently of the number of individuals of the species or habitat that may exist in the 

Republic of Mexico and independently of actions that Mexico might or might not 

take to protect species or habitat located there. Sufficient habitat will be acquired 

and other conservation measures will be put into place in the United States under 

the MSCP to meet the needs of all of the species covered by the program. Thus, covered species will be protected and conserved whether or not any conservation actions are taken by the Republic of Mexico to protect members of the species or habitat that are located there. 

The Environmental Impact Statement (‘‘EIS’’) prepared in connection with the 

MSCP analyzed the impacts of the MSCP on environmental resources in Mexico as 

well as the obligations of the United States under the 1944 Treaty with Mexico regarding the Colorado River. The EIS concluded that no substantial adverse environmental impacts would occur in Mexico and that no reduction in deliveries of Colorado River water to Mexico would occur as a result of implementation of the MSCP. 

If anything, the MSCP should improve conditions for species that reside on both 

sides of the border by providing substantial amounts of new habitat for those species. 

(State Representatives) Can you please discuss the specifics of the 

proposed federal-state water use agreement referenced in section 3(b) of 

the bill? 

Answer: Section 3(b) provides the authorization and direction necessary for the 

Secretary of the Interior to enter into an agreement with the three Lower Basin 

States regarding how to provide water from the Lower Colorado River for MSCP 

purposes, but does not alter existing rights to use Colorado River water. 

Under the Boulder Canyon Project Act of 1928 and the United States Supreme 

Court’s decision and decree in Arizona v. California, a contract with the Secretary 

of the Interior is required for the use of water from the Lower Colorado River. Reclamation’s Lower Colorado Regional Director enters into water delivery contracts on 

behalf of the Secretary. The water delivery contract constitutes an authorization to 

use Colorado River water in the Lower Basin. These contracts define the type of 

water use permitted by the contract, either for domestic or agricultural purposes. 

The use of Colorado River water for environmental purposes has been called into 

question from time to time. Because of this, Section 3(b) of H.R. 2515 provides explicit authorization for the Secretary to enter into an agreement with the Lower 

Basin States to provide Colorado River water for implementation of the MSCP. 

The agreement does three important things. First, it permits the Secretary to 

apply Colorado River water to the purposes of the MSCP. Second, it specifies how 

the Secretary is to account for water that is used for MSCP purposes. Third, the 

agreement permits the Secretary to manage Colorado River water for other MSCP 

purposes, including providing marsh, backwater and other habitat. 

Reclamation accounts for the diversion and consumptive use of water from the 

Lower Colorado River. Reclamation does not report as a diversion or consumptive 

use the natural depletion of Colorado River water by non-irrigated phreatophyte 

vegetation. Under the MSCP, some of this vegetation will be replaced with higher 

quality, native vegetation. The new, native vegetation will be using water previously 

used by the non-native vegetation, and under the agreement, the water use will not 

be treated as a new diversion or consumptive use of Lower Colorado River water. 

If additional water is needed for MSCP purposes, it will be acquired by lease or purchase from willing sellers. 

Subject to final review and approval within the Interior Department, the non-federal parties have reached agreement with the United States on the agreement to 

provide Colorado River water for MSCP purposes, as authorized by Section 3(b) of 

the bill. However, representatives of the Interior Department have advised us that 

the United States will not be able to execute the agreement unless and until the 

Congress enacts H.R. 2515 or the companion Senate bill (S. 300). Thus, passage of 

the bill is critical to the success of the MSCP. 

(State Representatives) Have the states reached agreement on how much 

water will be dedicated to the program? 

Answer: Yes. 

The Habitat Conservation Plan for the MSCP estimates that a little over 39,000 

acre-feet per year will be needed for MSCP purposes; however, no new consumptive 

16 

use of Colorado River water will be permitted. Instead, the water needed for MSCP 

purposes will come from a reduction in water use by removal of existing non-native 

vegetation, the use of prior existing rights to water that run with the land acquired 

for MSCP purposes, or the acquisition of additional water rights, as necessary, from 

willing sellers. The MSCP participants have allocated $50,000,000 of the MSCP 

funding to the costs of water acquisition. 

(State Representatives) How does the MSCP address non-native species? 

Answer: The conservation measures in the Habitat Conservation Plan for the 

MSCP include several elements that address non-native species, including maintenance of existing habitat, creation of new habitat, and population enhancement 

measures. One of the goals of the MSCP will be to maintain and improve existing habitat 

for covered species. This could include protecting such habitat from invasive, nonnative species, and removing undesirable species such as salt cedar and Arundo. A 

$25,000,000 fund will be established early in the program to maintain existing, high 

quality habitat. 

New habitat will also be created for covered species. This will include fuel load 

reduction (to reduce the risk of fires), removal of invasive, non-native flora and 

fauna, and replacement with high quality habitat types, such as cottonwood-willow. 

The Habitat Conservation Plan calls for the creation of 5,940 acres of cottonwoodwillow habitat, 1,320 acres of honey mesquite habitat, 512 acres of marsh habitat, 

and 360 acres of backwater habitat. The participants in the MSCP have allocated 

over $143,000,000 to the creation of new habitat for covered species. 

Finally, population enhancement measures will be used to control non-native species and to improve the chances for survival and propagation of covered species. 

These activities would include controlling piscivorus fish and non-native amphibians 

in advance of releasing covered native fish into created backwaters. Other population enhancement activities could include controlling brown-headed cowbirds to reduce the adverse effects of nest parasitism on covered species. 

Mrs. NAPOLITANO. Thank you very much, Ms. Smith. George 

Caan, Chairman of the Lower Colorado River Multi-Species Conservation Program, Las Vegas. 

STATEMENT OF GEORGE CAAN, CHAIRMAN, LOWER 

COLORADO RIVER MULTI-SPECIES CONSERVATION 

PROGRAM, LAS VEGAS, NEVADA 

Mr. CAAN. Madame Chairwoman Napolitano, Congressman Heller, Congressman Mitchell, members of the Subcommittee, good 

morning. My name is George Caan. I am the Executive Director of 

the Colorado River Commission in Nevada. I am also proud to be 

the Chairman of the Lower Colorado River Multi-Species Conservation Program. Quite a mouthful, and I will refer to it as the MSCP. 

This is a steering committee composed of the 40 plus agencies 

who have an interest in the health of the Colorado River system. 

I appreciate your invitation to speak to you today regarding 

H.R. 2515. I want to especially thank you, Madame Chairwoman, 

Congressman Heller, Congressman Mitchell, for your support and 

leadership on this bill. 

I speak today on behalf of the State of Nevada and also as the 

Chairman of the Committee. Like our sister states of California 

and Arizona, Nevada fully supports this bill. I have submitted my 

written testimony to the committee but would like to offer brief remarks on why this legislation is so necessary, and hopefully I can 

convince my friend, Bob Johnson, to move from understanding why 

we need this bill to agreeing that we do need this bill. 

The MSCP is critical to the states that enjoy the benefits of the 

water and power delivered by the Colorado River. As an example, 

southern Nevada receives 90 percent of its water supply from the 

17 

Colorado River and Lake Mead. The need for future certainty on 

this supply and a supply that we plan on using for quite some time 

is what drove us to work for the last decade in developing this program. 

In order to comply with our responsibilities under the Endangered Species Act while continuing to use our water and power resources and develop them into the future, it was also the motivation for the non-Federal parties to contribute 50 percent of the 

$626 million of program costs. This long-term program of 50 years 

needs the blessing of Congress through passage of this bill. 

We need this legislation. Let me explain why. The legislation is 

needed because it provides authorization for the 50-year program. 

This provides the non-Federal parties the certainty to protect their 

substantial financial commitment for species protection over the 

50-year period. The legislation is needed to uphold the Federal parties’ end of the bargain by providing specific Federal appropriations 

to support the Federal parties’ 50-year financial commitment. 

The legislation is needed to provide specific direction to the Federal parties to comply with their commitments under the program 

documents. It provides remedies to the non-Federal parties to enforce the provisions of the program documents. The legislation is 

needed so that future changes to the Endangered Species Act will 

not modify the program unless specifically called for. 

The term immunization was used I believe in your opening remarks. What we are looking for is that any future acts of Congress 

dealing with the Endangered Species Act specifically address the 

multi-species program so that there are no unintended consequences of future actions. Finally, the legislation gives specific 

authority to the Federal parties to use Colorado River water to sustain the various riparian habitats, fish rearing projects and related 

facilities provided under the program through an agreement with 

the non-Federal parties. 

This is an extremely important effort for all of us. With your help 

in passing this legislation, the program is destined for great success. 

In conclusion, Madame Chairwoman, members of the committee, 

I am extremely proud to be associated with a program of such quality. You can look at what we are doing today, the land and water 

we are acquiring, the habitat we are restoring, the fisheries we are 

rebuilding, the backwaters we are creating, the ecosystems that we 

are revitalizing. Look at the substantial financial commitments 

that we have made to this program. 

We are developing solid science programs and embracing an 

adaptive management program to adjust and improve more efforts 

over the 50-year period so that we know what works and what does 

not work. We have sufficient time to go ahead and replan and redo 

and see the fruits of our efforts. The states, the tribes, the local 

governments, water and power agencies, those who rely on this 

precious resource, all of us are doing our part in this important and 

unprecedented effort. 

The certainty of the success of this program and the populations 

who depend upon this important resource, the Colorado River, need 

this legislation passed by this Congress. Thank you, and I would 

be more than happy to answer any of your questions. 

18 

[The prepared statement of Mr. Caan follows:] 

Statement of George M. Caan, Executive Director, 

Colorado River Commission of Nevada, on H.R. 2515 

Good morning Madam Chairwoman Napolitano, Congresswoman McMorris-Rodgers and Congressman Heller, members of the Subcommittee. My name is George 

Caan and I am the Executive Director of the Colorado River Commission of Nevada. 

I am also the Chairman of the Steering Committee charged with overseeing the 

Lower Colorado River Multi-Species Conservation Program. I appreciate your invitation today to speak to you regarding H.R. 2515. I want to especially thank you 

Madam Chairwoman and Congressman Heller for your efforts and leadership on 

this bill. This bill authorizes the Lower Colorado River Multi-Species Conservation 

Program. I speak today on behalf of the State of Nevada, one of the three lower 

basin states directly involved in the Program. Like its sister states of California and 

Arizona, Nevada fully supports this bill. I look forward to your comments and questions. 

The Lower Colorado River Multi-Species Conservation Program is an unprecedented, robust 50 year, cooperative effort among 50 federal and non-federal entities 

in Nevada, California and Arizona designed to protect 26 endangered, threatened 

and sensitive species on the Lower Colorado River. The Program provides for the 

creation of over 8,100 acres of riparian, marsh and backwater habitat for the species 

covered by the Program, and includes plans for the rearing and stocking of over 1.2 

million fish to augment populations of two endangered fish covered by the Program. 

The Program also provides for the maintenance of existing, high-quality habitat, 

and a research, monitoring and adaptive management effort to ensure that Program 

elements are effective in helping covered species. In exchange for species and habitat protection, the affected water and power agencies of the three states are provided with assurances that their operations may continue upon compliance with 

Program requirements. 

This Program is particularly vital to the State of Nevada. The State, through the 

Colorado River Commission of Nevada, an agency of the State of Nevada, and the 

Southern Nevada Water Authority, a political subdivision of the State of Nevada, 

currently diverts its entire apportioned share of Colorado River water. This Colorado 

River water constitutes the overwhelming majority of the water supply for the Las 

Vegas Valley area, almost 90%, with the remaining water coming from a limited 

groundwater supply. There are currently more than one and a half million residents 

living in the Las Vegas area. Southern Nevada is the fastest growing urban area 

in the United States. In the last ten years alone the population increased by almost 

70% and for the next ten-year period the population is projected to increase by an 

additional 50%. 

Southern Nevada also relies on the Colorado River for hydroelectric power. On behalf of the State and as principal in its own behalf, the Colorado River Commission 

receives electric power generated by various federal hydroelectric projects on the 

Colorado River through delivery contracts with the Western Area Power Administration of the U.S. Department of Energy. These projects include the Boulder Canyon Project, the Parker-Davis Project and Salt Lake City Area Integrated Projects. 

The Commission, in turn, contracts to deliver electric power from one or more of 

these federal projects to the several companies comprising the Basic Industries in 

Henderson, Nevada, the Southern Nevada Water Authority and to five power utilities that together serve southern Nevada. 

Consequently, the sustainability of the Colorado River System is absolutely critical to the vitality of southern Nevada’s future. For this reason, the State of Nevada 

was a significant participant in the development of the Program and is now one of 

the primary non-federal party funding contributors to the Program. In short, the 

Program provides for a total of $626 million in funding, indexed for inflation over 

50 years, for the species conservation efforts that will be implemented under the 

Program. These costs are divided 50-50 between the state and federal entities covered by the Program. Accordingly, H.R. 2515 provides an authorization of appropriations for the federal share of Program costs and directs the Secretary of the 

Interior to manage and implement the Program in accordance with the Program 

Documents. These documents include the agreements that the parties have signed 

embodying their commitment to carry out the Program. As former Secretary Norton 

declared in the Record of Decision for the Program: 

The importance of the Colorado River to the southwestern portion of the 

United States cannot be overstated: the Colorado is the lifeblood of the 

southwest. The Colorado River provides water and power to over 20 million 

people (in such cities as Los Angeles, San Diego, Las Vegas, Phoenix and 

19 

1The IBWC was established under the 1944 U.S.-Mexico Water Treaty between the United 

States and Mexico regarding the Colorado River and is made up of representatives of the Republic of Mexico and the U.S. State Department. 2Defenders of Wildlife v. Norton, 257 F. Supp. 2d 53 (D.D.C. 2003). 

Tucson), irrigates over 2 million acres, and generates up to 10 billion kilowatt hours of electricity annually. 

H.R. 2515 gives the necessary strength and integrity to this monumental federal 

and non-federal collaborative conservation Program and virtually assures its success 

over the next five decades. The State of Nevada supports this bill in its entirety and 

urges the Committee to approve the bill. Thank you again for the opportunity to 

speak with you today. I’d be happy now to answer any questions you may have. 

Response to questions submitted for the record by 

George M. Caan on H.R. 2515 

(State Representatives) Has there been any effort to work with entities on 

the other side of the Mexican border to ensure successful recovery for the 

river system, not just the U.S. side? Is it possible that neglect of habitat on 

the Mexican side could wipe out attempts by the MSCP to stabilize habitat 

and protect and recover species? 

There is significant continuing effort between the United States and Mexico 

through the International Water and Boundary Commission (‘‘IBWC’’) 1 to deal with 

environmental issues along the Lower Colorado River (LCR) and the delta region 

in Mexico. In particular, the U.S. Bureau of Reclamation and United States Section 

of the IBWC are involved in ‘‘Fourth Working Group’’ activities that predominantly 

through the International Boundary and Water Commission (‘‘IBWC’’) coordinate 

environmental investigations and activities along the Limitrophe Section of the LCR 

(i.e., the section between the northerly international boundary with California and 

the southerly international boundary with Arizona), as well as below the border. 

These activities include the development of a hydraulic model for the riverine corridor in Mexico, impacts of water management on the Cienega de Santa Clara, status of endangered Southwestern willow flycatcher and Yuma clapper rail, and other 

endangered species. 

Additionally, there are several cross-border initiatives involving the U.S. Fish and 

Wildlife Service, Arizona Game and Fish Department, Native American tribes, and 

other non-governmental organizations that focus on habitat restoration activities 

and endangered species conservation programs. These efforts are addressing portions of the Lower Colorado River in Mexico, the delta region, and the adjacent 

Sonoran Desert habitats. Finally, there is a ‘‘working group’’ of interested governmental and non-governmental entities in Arizona that are involved in evaluating 

the potential impacts of partial or full operation of the Yuma Desalting Plant and 

potential impacts to the Cienega de Santa Clara and water quality impacts associated with Treaty deliveries. 

These efforts are necessarily outside of the LCR MSCP since the Secretary of the 

Interior does not have the independent authority to alter river operations to provide 

more Colorado River water for the benefit of species or habitat in Mexico. 2 Furthermore, the Unites States alone has no ability to control water or land use in Mexico 

or be assured that its efforts would be supported or implemented by Mexican authorities. However, through the collaborative efforts described above progress may 

be made towards successful habitat restoration and species protection in Mexico. 

With respect to the second question, it is not likely any degradation of habitats 

in the Mexican portion of the Lower Colorado would negatively impact the success 

of LCR MSCP activities and programs. If anything, the benefits provided through 

the habitat created by LCR MSCP projects will help assure that endangered species 

will not go extinct due to any failure to protect their habitat by Mexico. 

(State Representatives) Can you please discuss the specifics of the proposed federal-state water use agreement referenced in section 3(b) of the 

bill? Have the states reached agreement on how much water will be dedicated to the program? 

The LCR MSCP Conservation Plan includes an estimate that consumptive water 

use for program purposes will be 39,300 acre-feet per year. This water is expected 

to be provided through acquisition of lands for habitat creation that include water 

rights; although the program cost estimate includes $50 million to acquire any additional water rights that may be needed. However, there is legal question about the 

authority of Reclamation to make use of Colorado River water for fish and wildlife 

20 

purposes. Section 3(b) is specifically intended to provide assurances for that authority so that the LCR MSCP may be fully implemented. 

The proposed water agreement will accomplish three major purposes. First, it will 

permit the Secretary to apply Colorado River water to the purposes of the LCR 

MSCP. Second, it will specify how the Secretary is to account for water that is applied to LCR MSCP purposes. For example, the Secretary does not report as a diversion or consumptive use the natural depletion of Colorado River water by non-irrigated phreatophyte vegetation. Under the LCR MSCP, some of this vegetation will 

be replaced with higher quality, native vegetation. The new, native vegetation will 

use water previously applied to the non-native vegetation and so will not be treated 

as a new diversion or consumptive use of Lower Colorado River water. If additional 

water is needed for MSCP purposes, it will be acquired from willing sellers. Third, 

the agreement will permit the Secretary to manage Colorado River water for other 

MSCP purposes, including providing marsh, backwater and other habitat. 

(State Representatives) How does the MSCP address non-native species? 

There are many programs and activities contained within the LCR MSCP conservation measures that address the management and control of non-native plant 

and animal species. For example, control and management of non-native salt cedar 

(tamarisk) is a major part of the re-establishment and maintenance of native cottonwood and willow habitats along the LCR. The salt cedar is low quality habitat for 

migratory birds, and its replacement with native vegetation will improve conditions 

for nesting and breeding for these species. Another program within the LCR MSCP 

to benefit migratory bird species is the control of nest parasitism by the Brownheaded cowbirds, which has negatively impacted many birds, such as the endangered Southwestern willow flycatcher. To counter the predation by non-native fish 

on juvenile native endangered fish, the LCR MSCP participants have agreed to the 

rearing, stocking and management of nearly 1.2 million razorback suckers and 

bonytail in aquatic habitats within the LCR MSCP planning area along the LCR. 

Mrs. NAPOLITANO. Thank you, Mr. Caan. Next I would like to 

recognize Kara Gillon, Senior Staff Attorney, Defenders of Wildlife, 

Albuquerque, New Mexico. Welcome. 

STATEMENT OF KARA GILLON, SENIOR STAFF ATTORNEY, 

DEFENDERS OF WILDLIFE, ALBUQUERQUE, NEW MEXICO 

Ms. GILLON. Thank you, Madame Chairwoman, and members of 

the Subcommittee and Committee. I am Kara Gillon, Senior Staff 

Attorney with Defenders of Wildlife. Defenders of Wildlife is a national nonprofit membership organization dedicated to the protection of native animals and plants in their natural communities. 

Headquartered in Washington, D.C., Defenders has field offices in 

Albuquerque, New Mexico and throughout the basin states in Tucson, Sacramento and Denver. 

Before summarizing our concerns with H.R. 2515, I will first 

touch on our concerns with the Multi-Species Conservation Program, or MSCP. Defenders appreciate the effort and resources put 

into the MSCP. At its inception, Defenders applauded the program 

for its long-term, large-scale habitat improvement and species recovery. In fact, Defenders was a member of the steering committee. 

However, the MSCP falls short of these early goals and will not 

sustainably address the environmental degradation suffered by the 

Colorado River and delta. The plight of the big river fish highlights 

the extreme ecological degradation of the lower river. All four fish 

are listed as endangered under the ESA. The Colorado Pike Minnow has been extirpated from the lower basin. The bony tail has 

been virtually extirpated from the wild, and the razorback sucker 

populations are not self-sustaining. 

And just as native wildlife finds survival more difficult, we too 

face increasing challenges from a highly regulated river system, inVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00024 Fmt 6633 Sfmt 6602 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
21 

creasing water use over allocation, drought and climate change. 

The MSCP, however, does not address any of these pressures on 

the river. For this reason, habitat restoration and fish augmentation as proposed in the MSCP are much less likely to succeed. 

Years of river restoration efforts have shown us that successful 

restoration is critically dependent on understanding and addressing 

the causes of a river’s decline. It is also for this reason that several 

of the provisions of H.R. 2515 could result in adverse, unintended 

consequences for decades to come and present yet more challenges 

to wildlife conservation. To lock in the MSCP and provide the certainty contemplated here can only come at the expense of another 

user, the environment. 

Instead, we suggest legislation that preserves the Secretary of 

the Interior’s authority as water master and creates opportunities 

for flexibility and resiliency over the next 50 years. Simply put, 

there is no precedent for the constraints placed on the Secretary of 

the Interior in H.R. 2515. Defenders is concerned about those provisions that exceed a straightforward authorization to promote Federal participation such as authorization of appropriations, authorization to accept grants or provide grants or authorization to implement program activities. 

Provisions that lock in the program documents, direct development of the water accounting agreement and require explicit reference to the MSCP in future laws if they are to apply exceed what 

is necessary. H.R. 2515 is far different from authorizing legislation 

for other endangered fish programs such as the one on the upper 

Colorado River. This is because key program documents were not 

made available for public review and comment. 

Given the authority possessed by the Secretary as water master, 

requiring an agreement for water use is premature, and use of the 

section 10 habitat conservation plan and no surprises is inappropriate in light of the Federal nexus on the lower Colorado River, 

and finally because the MSCP steering committee refused to endorse an agreement where the MSCP would give good faith consideration to conservation opportunities in the Colorado River delta 

for the benefit of listed species there. 

In conclusion, in its current form the MSCP program documents 

recognize the Secretary’s role as water master. Defenders has long 

advocated for flexibility in river management in order to increase 

reliability and predictability of use of river resources. Such flexibility, however, should not come at the expense of the Secretary’s 

environmental authorities. 

Providing for increased levels of predictability will be critical to 

meeting the demands of both human and environmental water use 

in the future. Thank you very much. That concludes my testimony, 

and I will be happy to answer any questions. 

[The prepared statement of Ms. Gillon follows:] 

Statement of Kara Gillon, Senior Staff Attorney, 

Defenders of Wildlife, on H.R. 2515 

Madam Chairwoman and Members of the Subcommittee, I am Kara Gillon, Senior 

Staff Attorney with Defenders of Wildlife. Thank you for this opportunity to speak 

with you today on H.R. 2515, a bill to authorize appropriations for the Bureau of 

Reclamation to carry out the Lower Colorado River Multi-Species Conservation 

Program. 

22 

1 Bureau of Reclamation, Description and Assessment of Operations, Maintenance, and Sensitive Species of the Lower Colorado River 83 (1996), available at http://www.usbr.gov/lc/region/ 

g2000/batoc.html. 

Defenders of Wildlife (‘‘Defenders’’) is a national, nonprofit membership organization dedicated to the protection of all native wild animals and plants in their natural communities. Headquartered in Washington, D.C., Defenders has field offices 

in Albuquerque, NM, where I am located, and throughout the Colorado River basin 

states, in Tucson, AZ, Sacramento, CA, and Denver, CO. 

I will ask leave to supplement this with some documents that I am relying on 

for some of my comments today. Before summarizing our concerns with the MultiSpecies Conservation Program, also known as the ‘‘MSCP,’’ and proposed authorizing legislation, I first want to address briefly the Lower Colorado River—how it 

has been managed over the last seventy years and why the MSCP could do a better 

job addressing the environmental degradation suffered by the Colorado River and 

Delta. 

We appreciate the effort and resources put into the MSCP. At its inception, Defenders seized on the opportunity presented—long-term, large-scale habitat improvement and species recovery where before there was very little. Unfortunately, the 

final MSCP provides lesser protections for fewer species over a smaller area. 

Ten years ago, the Bureau of Reclamation found in a biological assessment of its 

historic and ongoing operations that ‘‘[H]uman-induced change since the beginning 

of the century has resulted in an ecosystem having significantly different physical 

and biological characteristics. Such changes have taken place as a result of the introduction of exotic plants (such as salt cedar), the construction of dams, river channel modification, the clearing of native vegetation for agriculture and fuel, fires, increasing soil salinity, the cessation of seasonal flooding, and lowered water tables.’’ 1

It is as if man created an entirely different river. 

Native wildlife is finding survival in an altered Colorado River basin more difficult. These changed processes no longer naturally sustain riparian forests and 

meadows, fail to provide young fish access to flooded lands and leave young fish 

more susceptible to predation by sight-feeding, non-native predators. 

The plight of the ‘‘Big River Fishes’’ highlights this extreme ecological degradation. All four fish are listed as endangered under the Endangered Species Act—the 

Colorado pikeminnow; bonytail; razorback sucker; and humpback chub. The Colorado pikeminnow has been extirpated from the lower basin and is not even considered by the MSCP. The bonytail also has been virtually extirpated from the wild. 

Razorback sucker populations have declined from 50,000 to 5,000 fish over the last 

ten years with very small wild populations; they are not self-sustaining. There is 

only one small population of the humpback chub in the lower basin. 

Habitat restoration and fish augmentation performed without regard to the wellknown threats to listed species are likely to fail. Years of river restoration efforts 

have shown us that successful river restoration is critically dependent on understanding and addressing the causes of the river’s decline (Palmer et al., 2006; 

Aronson & Le Floch, 1996). The restored habitats and stocked fish will continue 

their decline because the MSCP does not address the root causes of habitat degradation and low fish survival—the impounding, storing, and diverting of the river’s waters without regard to the natural hydrograph that naturally sustains the cottonwood-willow forest, mesquite bosque, and backwaters that harbor razorback suckers, 

bonytails, southwestern willow flycatchers and other fish and birds, compounded by 

the stocking of non-native predatory fish. 

Success of the conservation plan is also questionable because there are no goals 

or objectives for habitat restoration. Without goals or objectives, there are no 

metrics for measuring success. For example, we do not know if cottonwood-willow 

habitat is successful if we find one southwestern willow flycatcher, a flycatcher nest, 

or ten flycatchers. We also do not know that mitigation will occur prior to adverse 

impacts or if permanently lost habitat will be maintained in perpetuity. We also do 

not know how the MSCP will select habitat creation and restoration sites; thus we 

do not know if the MSCP will select sites that are off-channel or hydrologically connected to the river. 

Lastly, the MSCP purports to ensure the survival of imperiled fish and wildlife 

for the next fifty years yet fails to address perhaps the largest threat wildlife will 

face in this century—global warming. In 2004, a report prepared for the Pew Center 

on Global Climate Change synthesized published global warming studies and concluded that there was ‘‘convincing evidence’’ that anthropogenic global warming had 

significantly affected natural systems and that ‘‘[t]he addition of climate change to 

the mix of stressors already affecting valued habitats and endangered species will 

23 

present a major challenge to future conservation of U.S. ecological resources’’ (Parmesan & Galbraith, 2004). 

In fact, this year, Working Group II of the Intergovernmental Panel on Climate 

Change (‘‘IPCC’’) issued a Summary for Policy Makers which states with medium 

confidence that 20-30% of plant and animal species assessed in the report have an 

increased chance for extinction if the average global temperature increases by more 

than 1.5-2.5° Celsius. According to the IPCC, an increase in temperatures above this 

range would drastically alter ecosystem structure and functions, species’ ecological 

interactions, and species’ geographic ranges (IPCC, 2007). 

Colorado River fish and wildlife are particularly susceptible to adverse effects because of their concentrated habitat and their location in the Southwest. Global 

warming is likely to cause temperatures in the American West to increase above 

levels which increase a species chances for extinction, according to the IPCC. Furthermore, the IPCC predicts with very high confidence that global warming will 

lead to decreased snow pack, more winter flooding, and reduced summer flows for 

the mountains of the American West. Global warming effects likely to affect the Colorado River fish include precipitation decreases in the lower-basin by mid-century, 

early snowmelt runoff in the upper-basin, decreased overall runoff, and increased 

evaporation rates (Garfin & Lenart, 2007). Therefore, global warming is likely to 

produce changes in stream flows, precipitation, water temperature, and ecosystem 

structure which could very well result in an increased probability of fish extinction 

in the Southwest, such as in the Colorado River (National Assessment Synthesis 

Team, 2001). 

The imperiled status of many of these fish leave them less equipped to adapt to 

habitat modifications presented by global warming, making the possible effects upon 

them even more severe and leaving them more vulnerable to extinction. The MSCP 

is a rare, but foregone, chance to assist wildlife through the looming bottleneck of 

complex effects of global warming. 

To institutionalize the MSCP, as called for in the proposed legislation, may instead present one more challenge to wildlife conservation in the lower Colorado 

River. 

We too face increasing challenges from a highly regulated river system, increasing 

water use, drought, and climate change. The National Research Council has recently 

synthesized several studies that tell us historical conditions are no longer a reliable 

indicator of future conditions, with future droughts exceeding those of recent experience. First, our streamflow record in the basin is only a small subset within a range 

of greater variability than previously thought. For example, we are learning that although up to 16.5 million acre-feet of water has been allocated to users in the 

United States and Mexico, the river naturally yields 12.5 million acre-feet to 14.7 

million acre-feet of water. In addition, studies show a trend of increasing temperatures across the basin and a reduction in future streamflow (National Research 

Council, 2007). The MSCP, however, does not confront any of these challenges. For 

this reason, the success of proposed habitat restoration and fish augmentation is 

highly uncertain. 

In the face of growing challenges, the desire for certainty will increase. To provide 

the level of certainty contemplated here can only come at the expense of assurances 

for another—the environment. Instead, we suggest legislation that preserves the 

Secretary of the Interior’s authority as ‘‘water master.’’ Think instead in terms of 

flexibility and resiliency, where mechanisms may be created that create opportunities for all—whether through new opportunities and creative ideas for storage, 

instream flow, water acquisition programs, or reservoir re-operation. Certainty, 

whether over water supply or other resources and gained only at the expense of others, will create an untenable and unsustainable condition. 

This legislation will have the effect of constraining the Secretary of the Interior 

at precisely the time we need more opportunities for the Colorado River system. 

Provisions that codify the Program Documents and No Surprises and direct the Secretary to perform certain functions are inappropriate. 

There is no precedent for the constraints placed on the Secretary of the 

Interior 

The legislation proposed here is far, far different from that for other endangered 

fish programs authorized by Congress. Nearby and oft-cited examples are the Upper 

Colorado River Endangered Fish Recovery Program and the San Juan River Endangered Fish Recovery Program. 

Legislation for the MSCP should only do what may be necessary for federal participation in the program: authorize appropriations; authorize the federal party to 

acquire interests in land and/or water, accept or provide grants, and enter into contracts and cooperative agreements; and authorize the federal party to carry out 

24 

2 Arizona v. California, 373 U.S. 546, 589-90 (1963). 

3See Lower Colorado River Multi-Species Conservation Program Implementing Agreement at 

Sec. 7.2 (recognizing that federal and non-federal actions are so interconnected that a federal 

action could arguably be included in a section 10 permit), available at http://www.usbr.gov/lc/ 

lcrmscp/publications/FinalIA.pdf. 

aspects of the program. Rather than simply authorize the Secretary’s participation, 

H.R. 2515 directs the Secretary to take a certain course of action. Doing so confines 

the Secretary’s authority as ‘‘water master’’ for the next fifty years. 

Moreover, codifying the Program Documents would encourage other programs to 

emulate this legislative approach despite the fact that key documents—the Implementing Agreement and the Funding and Management Agreement—were not made 

available for public review and comment. 

HR 2515 also constrains future Congresses. The bill contains what is, in effect, 

a legislative no surprises policy requiring future Congresses to explicitly state if legislation applies to the MSCP, turning traditional legislative drafting and interpretation on its head. 

An HCP and ‘‘No Surprises’’ are Inappropriate due to the level of federal 

influence 

The MSCP is a combination of Endangered Species Act (‘‘ESA’’) sections 7 and 10, 

providing coverage for federal and non-federal participants. Use of a section 10 

Habitat Conservation Plan, or HCP, is inappropriate in light of the federal nexus 

associated with nearly all lower Colorado River activities. Section 10 and use of the 

‘‘No Surprises’’ policy are only appropriate where there is no federal nexus. 

The provision in the bill directing the Secretary to act in accordance with the Program Documents not only enacts No Surprises assurances for the non-federal participants but also for federal parties. Neither the Endangered Species Act nor its 

regulations authorize extension of No Surprises to federal agencies. 

The federal government is implicated in nearly every aspect of lower Colorado 

River operations, due to the Secretary of the Interior’s role as ‘‘water master’’. The 

Bureau of Reclamation has been delegated responsibility for operating and maintaining the extensive network of dams, water diversions, levees, canals, and other 

water control and delivery systems on the River. Reclamation’s authority and discretion are guided by a body of treaties, Congressional enactments, compacts, and other 

agreements known as the law of the river. 

In 1928, Congress passed the Boulder Canyon Project Act which authorized the 

construction of a dam system on the River. Importantly, the Act reserved for the 

federal government broad authority over the operation of the dam system. As the 

Supreme Court in Arizona v. California explained, it was the United States’ undertaking of this ambitious project and its concomitant assumption of responsibility for 

its operation, that ‘‘Congress put the Secretary of Interior in charge of these works 

and entrusted him with sufficient power...to direct, manage, and coordinate their operation.’’ 2

Unlike biological opinions for federal agencies pursuant to section 7, which could 

change in future consultations, section 10 HCPs include No Surprises assurances. 

In general, if the status of a species covered by an HCP worsens because of unforeseen circumstances, the Fish and Wildlife Service will not require conservation or 

mitigation measures in addition to those in the HCP without the consent of the permittee. 

To obtain these assurances available only to non-federal parties, the MSCP parties employed a section 7/10 hybrid that pooled federal and non-federal actions and 

effects as interrelated. If No Surprises prohibits the Fish and Wildlife Service from 

requiring additional mitigation measures from non-federal participants in terms of 

land, water or other resources, the Fish and Wildlife Service may be equally constrained in requesting changes to federal activities. 3

In other words, there is a high degree of federal influence in lower basin operations. Section 10 of the ESA relates solely to authorizing take of listed species by 

non-federal entities. Use of section 10 and the No Surprises policy are therefore inappropriate. 

The degree of federal influence renders direction to the Secretary 

unnecessary 

Similarly, given the authority possessed by the Secretary as ‘‘water master,’’ directing a water accounting agreement is unnecessary and unwise. The Secretary has 

ample authority to provide for the comprehensive management and control of the 

Lower Basin system. Indeed, the Secretary need not be authorized or directed to 

enter into a water agreement any more than he needs authority to enter into the 

25 

Colorado River Water Delivery Agreement or to develop surplus or shortage guidelines. And again, to direct the Secretary to enter into this water agreement is problematic because the Program Documents do not mention the need for such an agreement, even after comment that the documents were vague as to the sources and use 

of water for the MSCP, and there will be no future opportunity to comment on such 

agreement. 

The MSCP does not cover all listed species 

Defenders was a member of the MSCP Steering Committee during the mid-1990s, 

during which we sought opportunities for the MSCP to include the Colorado River 

Delta within its coverage and conservation areas. After extensive negotiations with 

other MSCP participants and after the Steering Committee voted not to endorse an 

agreement where the MSCP would give good faith consideration of conservation opportunities in Mexico, Defenders withdrew in late 1998. 

The Colorado River basin encompasses nine states: seven in the United States 

and two in Mexico. The MSCP planning area, however, only ‘‘comprises areas up 

to and including the full-pool elevations of Lakes Mead, Mohave, and Havasu and 

the historical floodplain of the Colorado River from Lake Mead to the Southern 

International Boundary.’’ Although these fish naturally occurred in this area, the 

MSCP wrongly excludes the Colorado pikeminnow from consideration; it offers no 

conservation measures for the fish. Moreover, the MSCP ‘‘Planning Area’’ does not 

encompass the entire area that may be affected by the covered actions—the Colorado River Delta. Several endangered species, including the razorback sucker, Yuma 

clapper rail, desert pupfish, and vaquita, find a home there, are affected by activities along the lower Colorado River, and deserve protection. 

Conclusion 

In its current form, the Lower Colorado River MSCP preserves the Secretary’s 

role as water master of the Colorado River. Defenders of Wildlife has long advocated 

for flexibility in Colorado River management in order to increase the reliability and 

predictability of use of river resources. Such flexibility, however, should not come 

at the expense of the Secretary’s environmental authorities and obligations nor 

should the Secretary relinquish his role as water master in lower Colorado River 

management in an attempt to achieve such flexibility. 

Providing for increased levels of flexibility in river management will be critical to 

meeting the demands of both human and environmental water users in the future, 

particularly as Upper Basin use and the impacts of climate change decrease overall 

water availability in the Colorado River system. Defenders believes that H.R. 2515 

goes beyond what is needed to authorize the MSCP and may limit our options to 

address future challenges. 

Thank you very much for the opportunity to provide testimony today. I will be 

glad to answer any questions. 

References 

Aronson, J. and E. Le Floch. 1996. Vital landscape attributes: missing tools for restoration ecology, Restoration Ecology 4: 377-387. 

Garfin, Gregg and M. Lenart. 2007. Climate Change: Effects on Southwest Water Resources, 6 Southwest Hydrology 6:16-34 (2007). 

IPCC, 2007. Climate change 2007: Mitigation. Contribution of Working group III to 

the Fourth Assessment Report of the Intergovernmental Panel on Climate 

Change [B. Metz, O. R. Davidson, P. R. Bosch, R. Dave, L. A. Meyer (eds)], 

Cambridge University Press, Cambridge, United Kingdom and New York, NY, 

USA. Available at http://www.ipcc.ch/SPM040507.pdf (last visited July 20, 

2007). 

McCarty, John P. 2001. Ecological Consequences of Recent Climate Change, 15 Conservation Biology 15:320-331. 

National Assessment Synthesis Team, Climate Change Impacts on the United 

States: The Potential Consequences of Climate Variability and Change, Report 

for the U.S. Global Change Research Program, Cambridge University Press, 

Cambridge UK (2001). Available at http://www.usgcrp.gov/usgcrp/Library/ 

nationalassessment/foundation.htm (last visited July 20, 2007). 

National Research Council, National Academies, Colorado River Basin Water Management (2007). 

Palmer, M.A. et al. 2005. Standards for ecologically successful river restoration, J. 

of Applied Ecology 42:208-217. 

Parmesan, Camille and H. Galbraith, Pew Center on Global Climate Change, Observed Impacts of Global Climate Change in the U.S. (2004), available at http:// 

www.pewclimate.org/docUploads/finallObsImpact.pdf (last visited July 20, 

2007). 

26 

1Lucy Kafanov, Water Managers Must Gird for Extreme Conditions, E&E News PM (April 

27, 2007). 

Response to questions submitted for the record by 

Kara Gillon on H.R. 2515 

1. H.R. 2515 establishes a 50-year term for the Lower Colorado Multi-Species Conservation Program. Fifty years strikes me as a long time, and it 

is certainly longer than is normally set for natural resource programs. 

For example, the Upper Colorado Recovery Implementation Program 

was authorized in 1988 and had to be reauthorized in 2005—after only 

17 years. Is a 50-year term really appropriate for this program? Are you 

confident that conditions affecting the program will be essentially unchanged 50 years from now? What assurances are there? 

Response: 

The 50-year time frame for the Lower Colorado River Multi-Species Conservation 

Program (‘‘MSCP’’) is cause for concern. The MSCP does not address existing 

threats posed by non-native predatory species and a drastically altered river ecosystem. One cannot safely predict future ecosystem conditions given the failure to 

tackle known threats, not to mention additional threats not discussed by the MSCP, 

such as those posed by climate change. For these reasons, there is little assurance 

the MSCP is equipped to deal with the challenges of the next half-century. 

For example, the Program Documents’ hydrologic modeling of potential flows over 

the next fifty years is based on the assumption that future hydrology will resemble 

historic patterns. Defenders of Wildlife and others commented, therefore, that the 

model fails to account for the likelihood that climate change will affect the hydrology 

of, and demand within, the Colorado River basin. Climate change impacts could reduce inflows by as much as 20 percent, with resultant adverse impacts on habitat 

and listed species (Nash, L.L. and P. Gleick. 1991. The sensitivity of streamflow in 

the Colorado basin to climatic changes. Journal of Hydrology 125: 221-241; Nash, 

L.L. and P. Gleick. 1993. The Colorado River Basin and Climatic Change: The Sensitivity of Streamflow and Water Supply to Variations in Temperature and Precipitation. Report EPA 230-R-93-009. Washington, DC: Environmental Protection 

Agency). 

There has been and continues to be a great deal of research on the effects of climate change on water resources in the Colorado River basin (Garfin & Lenart, 2007; 

Christensen, N.S., A.W. Wood, N. Voisin, D.P. Lettenmaier, and R.N. Palmer. 2004. 

The Effects of Climate Change on the Hydrology and Water Resources of the Colorado River Basin. Climatic Change 62(1): 337-363). The studies predicted, and continue to predict, higher temperatures, decreases in streamflow, less snow and more 

precipitation, reduced storage, and less hydropower production. As the United 

States Geological Survey succinctly stated, ‘‘We need to look at a large range of possible futures for water and [evaluate] how well will our designs, plans and allocations work under a whole range of climate scenarios—because we can’t narrow it 

down.’’ 1

After the Bureau of Reclamation rejected climate change as an important problem 

that merits analysis, the subsequent Program Documents failed to even mention the 

possibility of climate change over the next 50 years. 

Furthermore, the MSCP is not a recovery program, but a program to offset impacts from current and future activities. If the MSCP were geared toward recovery, 

rather than the status quo, the fish and wildlife of the Colorado River basin might 

possess long term assurances on par with those sought by the MSCP permittees. 

Due to concerns over the length of the MSCP and its focus on mitigation of impacts rather than recovery of species, Congress may wish to authorize the program 

without the additional provisions of H.R. 2515 that would also direct the Secretary 

to implement the MSCP as written today, in Sections 3(a) and 5(b). Congress may 

also authorize the program in increments, as is proposed with the Platte River Recovery Implementation Program. 

2. This program was roughly modeled upon the Upper Colorado Recovery 

Implementation Program; did water and power users and the states in 

the Upper Colorado Basin receive the same assurances that are being 

provided in the MSCP? 

Response: 

Defenders of Wildlife has not been a participant in the Upper Colorado River Recovery Implementation Program (‘‘RIP’’), but the following response is based on my 

understanding of the RIP’s beginning and implementation. 

27 

From its beginning in 1988, the RIP sought to do more than offset impacts of 

water development activities; the RIP instead developed a plan to implement a set 

of actions to address aspects of the recovery plans for listed species. 

The RIP serves as the ‘‘reasonable and prudent alternative’’ for projects undergoing Endangered Species Act section 7 consultation. In other words, the RIP avoids 

jeopardizing the existence of listed species and destroying or adversely modifying 

species’ critical habitat. The Fish and Wildlife Service retains ongoing responsibility 

to determine whether the RIP is making sufficient progress toward recovery. The 

Fish and Wildlife Service also retains the ability to fashion a new reasonable and 

prudent alternative in the event sufficient progress is not being made or if the RIP 

cannot continue to serve as the reasonable and prudent alternative. 

In contrast to the MSCP, the Upper Colorado River RIP does not cover a period 

as long as 50 years. The RIP does not guarantee No Surprises assurances to the 

non-federal participants, nor does the RIP simply mitigate for the adverse impacts 

of current and future activities, in essence maintaining the status quo. Unlike 

MSCP parties, participants in the RIP do not have assurances that their Recovery 

Action Plan or obligations thereunder will never change. However, they do have assurance that although the Fish and Wildlife Service makes the final decision, the 

agency will work with them in measuring the progress of the RIP and, if necessary, 

in developing new reasonable and prudent alternatives. 

Mrs. NAPOLITANO. Thank you very much, Madame. I appreciate 

your testimony and found it of great interest. Next would be Mr. 

Gerald Zimmerman, the Executive Director of the Colorado River 

Board of California in Glendale, California. Welcome. 

STATEMENT OF GERALD R. ZIMMERMAN, EXECUTIVE 

DIRECTOR, COLORADO RIVER BOARD OF CALIFORNIA, 

GLENDALE, CALIFORNIA 

Mr. ZIMMERMAN. Thank you, Madame Chairperson or Chairwoman and members of the Subcommittee. I want to thank you for 

the opportunity to provide both written and oral testimony today 

on H.R. 2515. The Colorado River Board of California is the agency 

in California created by state statute to protect California’s rights 

and interest in the resources provided by the Colorado River and 

to represent California in discussions and negotiations regarding 

the Colorado River and its management. 

California’s rights and interest in the water and power resources 

of the Colorado River system are vital to the state’s economy. 

Seven counties in southern California, more than half the state’s 

population, are supported by the water and power resources from 

the Colorado River to support the economy in excess of $850 billion 

per year. The Colorado River Board of California supports passage 

of H.R. 2515 because if passed it assures continued compliance by 

the United States with the program documents and agreements 

that have been developed as part of the lower Colorado River 

Multi-Species Conservation Program. 

From California’s perspective, H.R. 2515 as written provides several key elements that are important toward ensuring the longterm, effective implementation of this important program. First, 

H.R. 2515 provides an authorization of appropriation for the Federal share of the cost and directs the Secretary of Interior to manage the program in accordance with the program documents and 

agreements that have been developed. 

These documents and agreements that were executed by the Federal and non-Federal parties reflect a long-term commitment to implement this program through 2055. California believes that 

through this legislation it is important that Congress formally recVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
28 

ognize the value of the program to the citizens of the United States 

and the overarching responsibilities of the Secretary of Interior and 

the Bureau of Reclamation and the responsibilities that they have 

toward long-term program implementation. 

Second, H.R. 2515 establishes a process for the Secretary of 

Interior and the Bureau of Reclamation to acquire and provide adequate water supplies associated with restoration and maintenance 

of habitats created pursuant to the program documents. In these 

times of limited water supplies in the lower basin, this process will 

allow for the creation and maintenance of 8,132 acres of aquatic 

wetland and riparian habitat within the program planning area 

along the lower Colorado River, while ensuring lawful entitlement 

holders in each of the three lower basin states can continue to 

manage and effectively utilize their important Colorado River apportionments throughout the 50-year period. 

Specifically there is language in H.R. 2515 ensuring that habitat 

water acquisition and water use policy established by the Secretary 

of Interior will not impair any rights to mainstream water established by any compact, treaty, law or decree in effect as of enactment of this act. 

Finally, H.R. 2515 acknowledges that a long-term, cooperative 

effort involving Federal and non-Federal participants will be required in order to successfully implement this program over the 50- 

year period. This will be accomplished through periodic meetings of 

the Lower Colorado River Multi-Species Conservation Program 

steering committee and Reclamation staff. These meetings, several 

of which have already occurred since the inception of the implementation program in April 2005, are the primary focal point for 

decision-making regarding preparation and adoption of the annual 

work plans, budgets and program implementation status reports. 

It is a steering committee where the consensus-based decisions 

are made based on the results of ongoing monitoring and research. 

Utilization of adaptive management in suggesting modifications 

that need to be made should be based on the best available science. 

I believe that this is a key element of the program, and we are 

already spending over 25 percent of the program cost to adapt to 

potential change that may occur. 

Madame Chair, I want to thank you for the opportunity to be 

here today. I want to indicate that California is fully committed to 

carrying out its responsibilities toward the long-term implementation of this program. Thank you. 

[The prepared statement of Mr. Zimmerman follows:] 

Statement of Gerald R. Zimmerman, Executive Director, 

Colorado River Board of California, on H.R. 2515 

Madam Chairwoman and Members of the Committee and Subcommittee, thank 

you for the opportunity to submit written testimony regarding H.R. 2515. As the 

subcommittee is aware, H.R. 2515 authorizes appropriations associated with longterm implementation the Lower Colorado River Multi-Species Conservation Program 

(‘‘LCR MSCP’’). The LCR MSCP is a comprehensive, cooperative effort among fifty 

federal and non-federal entities in Arizona, California and Nevada to protect 26 endangered, threatened and sensitive species along the Lower Colorado River and to 

provide assurances to the non-federal entities involved that their essential water 

and power operations on the River may continue if they comply with the Program’s 

requirements and agreements. 

As background, I am the Executive Director of the Colorado River Board of California (CRB); I served as the Chairman of the LCR MSCP Steering Committee 

29 

throughout the program-development phase and the first two years of the implementation phase. The CRB is the agency in California created by State statute to 

protect California’s rights and interests in the resources provided by the Colorado 

River and to represent California in discussions and negotiations regarding the Colorado River and its management. California’s rights and interests in the water and 

power resources of the Colorado River System are vital to the State’s economy. 

Seven counties in Southern California, with more than half of the state’s population, 

nearly 20 million residents, receive water and hydroelectric energy from the Colorado River, in support of a service area economy in excess of $850 billion per year. 

All ten members on the Colorado River Board of California are appointed by the 

Governor. 

It should be pointed out that in a normal water year California is entitled to the 

use of up to 4.4 million acre-feet of water from the mainstream of the Colorado 

River. This valuable water supply is utilized by several large southern California 

agricultural districts, as well as The Metropolitan Water District of Southern California, the wholesale distributor of water supplies to municipal providers that meet 

the needs of nearly 18 million residents in Southern California. 

The CRB strongly supports H.R. 2515, because this legislation, if passed, assures 

continued compliance by the United States with the program documents and agreements that have been developed as part of the LCR MSCP. That, in turn, provides 

protection to the non-federal participants in the Program, who like the CRB, its 

member agencies, and all of the Colorado River water and hydroelectric power contractors, have agreed to provide substantial amounts of non-federal monies for the 

conservation of endangered species in order to receive an incidental take permit 

under the terms of the Endangered Species Act for their continued water and power 

operations. 

On April 2, 2005, Secretary of the Department of the Interior, Gale A. Norton, 

approved this major collaborative and innovative 50-year conservation initiative. 

The overall Program costs, $626 million, will be annually adjusted for inflation, and 

will be shared by the three lower basin states paying 50 percent of the costs and 

the federal government paying 50 percent. Of the states’ share, Arizona and Nevada 

will each pay 25 percent, while California will pay the remaining 50 percent. In return for their funding commitments, the non-federal participants have received a 

50-year incidental take permit, issued by the U.S. Fish and Wildlife Service under 

Section 10 of the Endangered Species Act, which authorizes their existing and future water and power operations to continue. All of the California participants have 

made a significant long-term financial commitment toward the implementation of 

the LCR MSCP that has been memorialized in a California LCR MSCP Funding 

Agreement, executed on April 2, 2005. 

From California’s perspective, H.R. 2515, as written, provides several key elements that are important toward ensuring the long-term effective implementation 

of this important Program. First H.R. 2515 provides an authorization of appropriations for the federal share of Program costs and directs the Secretary of the Interior 

to manage and implement the Program in accordance with the executed Program 

Documents and Agreements. These documents and agreements, executed by all of 

the federal and non-federal parties reflect the long-term commitment to implement 

this important Program through 2055. California believes that, through this legislation, it is important that the Congress formally recognize the value of the Program 

to the citizens of the United States and the overarching responsibilities that the 

Secretary of the Interior and the Bureau of Reclamation (Reclamation) have toward 

long-term Program implementation. 

Second, H.R. 2515 establishes a process for the Secretary of the Interior and Reclamation to acquire and provide adequate water supplies associated with the restoration and maintenance of habitats created pursuant to the Program documents. 

In these times of limited water supplies in the Lower Basin States, this process will 

allow for the creation and maintenance of the 8,132 acres of aquatic, wetland, and 

riparian habitats within the Program planning area along the Lower Colorado 

River, and yet ensure that lawful entitlement holders in the three states can continue to manage and effectively utilize their important Colorado River apportionments over the fifty-year period. Specifically, there is language in H.R. 2515 ensuring that the habitat water acquisition and use policies established by the Secretary 

of the Interior will not impair any right to mainstream water established under any 

compact, treaty, law, decree, or contract in effect as of enactment of this Act. 

Third, H.R. 2515 acknowledges that a long-term cooperative effort, involving the 

federal and non-federal Program participants, will be required in order to successfully implement this Program over the fifty-year period. This will be accomplished 

through periodic meetings of the LCR MSCP Steering Committee and Reclamation’s 

LCR MSCP Office staff. These meetings, several of which have occurred since incepVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
30 

tion of Program implementation in April 2005, are the primary focal point for decision-making regarding the preparation and adoption of annual work plans, budgets, 

and Program implementation status reports. It is in the Steering Committee where 

consensus-based decisions will be made associated with the results of ongoing monitoring and research activities and the utilization of adaptive management in suggesting modifications to implementation activities based upon the best available 

science. 

Finally, since the time that similar legislation was introduced last year (i.e., 

H.R. 5180), two significant developments have occurred. First, subject to final review and approval within the Department of the Interior, the parties have reached 

agreement with the United States on an agreement to provide Colorado River water 

for LCR MSCP habitat restoration and maintenance purposes, as authorized by 

Section 3(b) of the bill. Second, Section 5(b) of the bill, which relates to the impact 

of future legislative actions on the LCR MSCP, has been modified and narrowed significantly to meet the concerns of some members. 

California is fully committed to carrying out its responsibilities toward long-term 

implementation of the LCR MSCP over the fifty-year period, and looks forward to 

working with representatives and agencies within the States of Arizona and Nevada, as well as the participating federal agencies in carrying out those goals and 

meeting our collective obligations. Toward this end, California believes that 

H.R. 2515 is of vital importance to all of the LCR MSCP participants committed 

to the Program’s success. California urges the Subcommittee and the Committee, as 

well as the full House to approve this important legislation. 

It is worth noting that at the White House Conference on Cooperative Conservation in August 2005, in St. Louis, Missouri, the LCR MSCP was recognized by the 

Administration as an ‘‘Exemplary Initiative.’’ Implementation of the LCR MSCP is 

critical to the long-term needs of those in the southwest that depend on the Lower 

Colorado River for a major portion of their water and power resources. As Secretary 

Norton said in her April 2005 Record of Decision approving the Program: 

‘‘The importance of the Colorado River to the southwestern portion of the 

United States cannot be overstated: the Colorado is the lifeblood of the 

southwest. The Colorado River provides water and power to over 20 million 

people (in such cities as Los Angeles, San Diego, Las Vegas, Phoenix and 

Tucson), irrigates over 2 million acres, and generates up to 10 billion kilowatt hours of electricity annually.’’ 

The LCR MSCP represents a fifty-year commitment by all of the parties involved. 

It is essential that this commitment be fully and faithfully met. H.R. 2515 will help 

ensure that this occurs. Again, I would like to thank this Subcommittee and the 

Committee for the opportunity to provide this testimony regarding H.R. 2515, legislation considered by the CRB to be very important to California’s long-term interests and rights in the water and power resources of the Colorado River System. 

Should the Subcommittee or Committee require any clarification of these comments, 

or additional information, you may reach me at (818) 500-1625, extension 308. 

Response to questions submitted for the record by 

Gerald R. Zimmerman on H.R. 2515 

(State Representatives) Has there been any effort to work with entities on 

the other side of the Mexican border to ensure successful recovery for the 

river system, not just the U.S. side? Is it possible that neglect of habitat on 

the Mexican side could wipe out attempts by the MSCP to stabilize habitat 

and protect and recover species? 

There are several significant efforts underway involving federal, non-federal, and 

non-governmental agencies in both countries to address environmental issues along 

the Lower Colorado River (LCR) and the delta region in Mexico. The U.S. Bureau 

of Reclamation and United States Section of the International Boundary and Water 

Commission are involved in the International Boundary and Water Commission 

Minute 306 and the ‘‘Fourth Work Group’’ activities that coordinate environmental 

investigations and activities along the Limitrophe Section of the LCR (i.e., the section between the northerly international boundary with California and the southerly 

international boundary with Arizona), as well as below the border. Specifically, the 

Minute 306 process provides a conceptual framework for cooperation by the United 

States and Mexico through the development of studies and recommendations concerning the riparian and estuarine ecology of the Colorado River in its Limitrophe 

Section and its associated Delta. These activities include the development of a hydraulic model for the riverine corridor in Mexico, impacts of water management on 

the Cienega de Santa Clara, status of endangered Southwestern willow flycatcher 

31 

and Yuma clapper rail, and other endangered species. Additionally, there are several cross-border initiatives involving the U.S. Fish and Wildlife Service, Arizona 

Game and Fish Department, Native American tribes, and other non-governmental 

organizations that focus on habitat restoration activities and endangered species 

conservation programs. Collectively these efforts are addressing portions of the 

Lower Colorado River in Mexico, the delta region, and the adjacent Sonoran Desert 

habitats. Finally, there is a ‘‘working group’’ of interested governmental and nongovernmental entities in Arizona that are involved in evaluating the potential impacts of partial or full operation of the U.S. Bureau of Reclamation’s Yuma 

Desalting Plant and potential impacts to the Cienega de Santa Clara and water 

quality impacts associated with Mexican Water Treaty deliveries. 

With respect to the second question, it is not likely that any degradation of habitats in the Mexican portion of the Lower Colorado would negatively impact the success of LCR MSCP activities and programs. If anything, the benefits provided 

through the habitat created by LCR MSCP projects will help ensure that endangered species will not go extinct due to any failure to protect their habitat in Mexico. 

(State Representatives) Can you please discuss the specifics of the proposed federal-state water use agreement referenced in section 3(b) of the 

bill? Have the states reached agreement on how much water will be dedicated to the program? 

The LCR MSCP Conservation Plan includes an estimate that consumptive water 

use for program purposes (i.e., habitat restoration and maintenance) will be 39,300 

acre-feet per year. This water is expected to be provided through acquisition of lands 

for habitat creation that include water rights. Although the program cost estimate 

includes $50 million to acquire any additional water rights that may be needed, 

there is a legal question about the authority of Reclamation to make use of Colorado 

River water for fish and wildlife purposes. Section 3(b) of H.R. 2515 is specifically 

intended to provide assurances for that authority so that the LCR MSCP may be 

fully implemented. 

The proposed water agreement commits the Lower Division States and Reclamation to allow Colorado River water to be used for the LCR MSCP notwithstanding 

any contractual or other legal restrictions that may apply to the water used. Reclamation is further authorized to enter into voluntary agreements for the use or assignment of water for conservation purposes. In addition, the agreement encourages 

removal of non-native vegetation, like saltcedar, by providing that any water used 

by replacement native vegetation planted for program purposes will continue to be 

accounted as a system loss by Reclamation. 

(State Representatives) How does the MSCP address non-native species? 

There are many programs and activities contained within the LCR MSCP conservation measures that address the management and control of non-native plant 

and animal species. For example, control and management of non-native salt cedar 

(tamarisk) is a major part of the re-establishment and maintenance of native cottonwood and willow habitats along the LCR. The salt cedar is low quality habitat for 

migratory birds, and its replacement with native vegetation will improve conditions 

for nesting and breeding for these species. Another program within the LCR MSCP 

to benefit migratory bird species is the control of nest parasitism by the Brownheaded cowbirds, which has negatively impacted many birds, such as the endangered Southwestern willow flycatcher. 

With respect to non-native aquatic species, it should be pointed out that the three 

Lower Basin state wildlife resource agencies have not, for some time, stocked any 

non-native aquatic species in the waters of the Lower Colorado River. To counter 

the predation by non-native fish on juvenile native endangered fish, the LCR MSCP 

participants have agreed to the rearing, stocking and management of nearly 1.2 million razorback suckers and bonytail in aquatic habitats within the LCR MSCP planning area along the LCR. Finally, as part of the LCR MSCP, the Program participants are in the process of creating ‘‘predator-free’’ aquatic environments in order 

to facilitate rearing, management, and long-term conservation of stocks of native endangered fishes, including the razorback sucker and bonytail. 

Mrs. NAPOLITANO. Thank you, Mr. Zimmerman. We will begin 

with the question and answer, and I will start off with anybody 

that wants to answer this particular question that I have. It deals 

with the 50-year term for the program. It strikes me—as it does 

others—that it is really excessive. I know there is precedent in 

32 

some areas but it is kind of difficult for this type of an agreement 

as far as I am concerned because it will have to take in a lot of 

other issues such as temperature change, climate change, the low 

flows of the river, many of the things that we are beginning to see 

that have never in decades happened in our areas. 

It is certainly longer than normal set for natural resources programs. As an example, the upper Colorado Recovery Implementation Program authorized in 1988 had to be reauthorized 17 years 

later, in 2005. A 50-year term is somehow questionable as being 

appropriate. Are you confident that these conditions affecting the 

program will be essentially unchanged 50 years from now, and 

what assurances can you give this subcommittee? 

Mr. CAAN. Madame Chairwoman, let me begin attempting to answer your multifaceted question. This program is really unprecedented and unlike other programs that we have looked at, and let 

me quickly explain why. There are two parties essentially who 

have an interest in the Colorado River system with respect to Endangered Species Act issues. There are the Federal parties who require a section 7 consultation to deal with listed threatened and 

endangered species. 

There are also the private parties, the non-Federal parties, the 

ones who take the water and power, not the power so much but the 

water, who require a section 10 permit to continue operations. 

What we have done—and we started this 10 years ago—we decided 

that instead of having a separate effort for the Federal parties and 

a separate effort for the non-Federal parties, we would combine 

those efforts and try to do a comprehensive long-term program that 

would provide coverage for the currently listed and threatened species and future listed species by combining a section 7 and section 

10 hybrid that the states, the non-Federal and Federal parties 

agree to contribute to and have one plan that addresses all of the 

habitat, the 8,000 acres, the riparian habitat and fisheries for the 

50 years. 

So it is not unprecedented in terms of 50 years. It is unprecedented, I believe, in attempting to combine those two programs to 

provide for the long-term. With respect to the long-term, I think 

that is an advantage to the program. 

Mrs. NAPOLITANO. Could you speed it up? 

Mr. CAAN. I am sorry. Let me summarize very quickly. Where 

some may see constraints over the lack of flexibility or the 50 

years, we see the certainty of the program, the ability to provide 

adaptive management to look at change in the river conditions that 

will provide us the opportunity to continue to do what we believe 

is working and yet have 50 years so that if things are not working 

the way we think we can modify our program, implement new procedures, and then look at the success of the program over the 50 

years. Thank you. 

Mrs. NAPOLITANO. With whose oversight? 

Mr. CAAN. The oversight of this program will be conducted by the 

Federal and non-Federal parties over a steering committee that 

will be in existence for 50 years. We will delegate that to our future 

generations to take care of what we built into this program. As Mr. 

Zimmerman said, 25 percent of the budget is devoted to monitoring, reviewing, improving and managing. 

33 

Mrs. NAPOLITANO. Thank you. Somebody else? 

Mr. JOHNSON. Madame Chair, it is the beginning of the program. 

We did look at a 75-year program life similar to the multi-species 

or the habitat conservation program for central Orange County 

looking at resources. In discussions with the Fish and Wildlife 

Service on the activities, species, and resources that were going to 

be covered, it was determined that a 50-year program would be 

more appropriate. 

I believe, Madame Chair, that you have compared this with the 

upper Colorado River Implementation Program. That is an implementation program, not a habitat conservation program. What they 

are trying to do with that is to move the species toward recovery. 

They are not developing a habitat based plan as we are within the 

MSCP. For the cottonwood willows, et cetera, they need a longer 

term in order to determine whether the habitat is being provided 

for the species, and so being habitat based I believe that the 50- 

year term is appropriate. 

Mrs. NAPOLITANO. But are they not trying to move it to recovery? 

Mr. JOHNSON. Through the MSCP that is the objective is move 

each of the species toward recovery, yes. 

Ms. BITTER SMITH. Madame Chair, if I just might briefly add on 

behalf of one of those entities which is a water user, my board is 

a financial contributor in a very large sense to this project; and one 

of the key elements in them reaching that decision was the sense 

of certainty in the 50-year term of the program. That was a very 

key component in the discussion that happened at the CAP board 

level. 

Mr. JOHNSON. Madame Chairwoman, I would just say that I 

think everybody has summarized quite well, and I think we agree 

with most of the comments that have already been made. We support the 50-year period. We think the adaptive management approach allows plenty of flexibility to address anything that may 

happen in the future. 

Mrs. NAPOLITANO. Then I will have another question. What is 

the term of the Platte River Recovery Implementation Program, 

and was this program looked at as a possible model for the MSCP, 

and what of other HCPs? 

Mr. JOHNSON. Madame Chairwoman, I will take a shot at that. 

Actually I think the MSCP preceded the Platte River. I think the 

MSCP is probably a little bit ahead of the Platte River program in 

its development. I think the initial phase of the Platte River program is 13 years but I think it is anticipated that that will be 

modified over time, and in fact it has an expectation for a much 

longer life. 

Mrs. NAPOLITANO. Anybody else want to address that? Ms. 

Gillon, I am just wondering how open or public was the process of 

developing the Lower Colorado Multi-Species Conservation, and did 

all the stakeholders have a chance to participate fully, and how 

confident are you that there will be adequate public and stakeholder involvement 45, 50 years from now? 

Ms. GILLON. Well, as I mentioned, Defenders had been a steering 

committee member initially and during the development, the 

MSCP steering committee in meetings have been fairly open to the 

public. I think one of the challenges presented by the MSCP and 

34 

lots of programs like it is the sheer volume. I mean, a 10-year development period with a steering committee, several subcommittees, multiple meetings, it is quite a challenge for a nonprofit to 

keep up with and meaningfully participate in that sort of program. 

So while Defenders and other environmental groups made efforts 

to participate, I think in the past it was difficult but we did to the 

best of our ability. In the future, I do not know how that is going 

to look. I know that there have been attempts and the MSCP maintains a website where it puts out public documents. I think that 

there would be a fear that in about 20 or 25 years there will be 

less need for public participation. By that point, I believe they will 

be done with the planting and the stocking, and will be mainly 

monitoring. However, one of the challenges we have with a 50-year 

program is that recent history is not a very accurate indicator of 

what the future holds for us. So it is hard to say what will happen 

over the next 50 years in the MSCP. 

Mrs. NAPOLITANO. Thank you. I will now yield to the acting 

Ranking Member, Mr. Heller. 

Mr. HELLER. The acting, acting. Thank you, Madame Chairwoman. Again thank you for this hearing. I certainly do appreciate 

the opportunity to discuss these issues, and to Congressman Mitchell for his input and efforts on this bill also. George, I want to go 

back to the question that the Chairwoman brought up. Again getting back to this 50 years. Why not 25 years? Why not 100 years? 

Where did the 50 years come from? 

Mr. CAAN. Thank you, Congressman Heller. I presume that if we 

could have 100-year program we probably would take it. We expect 

to be utilizing the resources of the Colorado River in perpetuity, far 

beyond my tenure as Chairman and Executive Director. Fifty years 

was what we believed was consistent with the direction that the 

steering committee wanted to have with respect to the longevity, 

the habitat restoration, what we needed in order to both begin the 

program, to evolve it, to acquire the land, acquire the water, see 

the fruits of our labor, develop for instance planting techniques and 

backwater restoration, see how it works. 

If it does not work, we will have to go back, revise our plans and 

move forward. Fifty years was the kind of certainty that in order 

for us to provide this level of investment for the $626 million where 

Nevada is paying roughly $78 million of that share that we wanted 

the long-term certainty frankly to see the fruits of our ability and 

to see the project be a success. 

Forty years from now, Congressman Heller, there will probably 

be people back at Congress asking for additional legislation to extend this program to let you know how well it succeeded and to get 

the Congress to endorse a program that will continue to restore the 

environment. 

Mr. HELLER. Let me just raise one question. Was there any discussion during your deliberation on debt management or capital 

outlay from power companies and water companies as to part of 

the reason for the 50 years or any kind of time period? 

Mr. CAAN. Congressman Heller, Madame Chairwoman, in Nevada—I will just speak for Nevada—the water and power customers who rely on this river system fully understand the challenges that the Endangered Species Act could pose without a level 

35 

of certainty that we have done our best to comply with that. So 

those who receive an allocation of hydropower, those who receive 

an allocation of water are fully supporting the longevity and longterm program, which is why they are the ones who are contributing. In Nevada, two-thirds of the $78 million that Nevada is contributing is coming from water customers. One-third of the contributions are coming from those in southern Nevada who receive an allocation of Federal hydropower. It was initially a challenge for 

them to understand what the Endangered Species Act does. Once 

they understood what it could do if not planned for proactively, 

they were very willing to support contributing to this program and 

funding it. In fact, they are the members of the steering committee 

and plan to be there for the 50 years to monitor the success of this 

program. 

Mr. HELLER. Very good. Thank you. I yield back. 

Mrs. NAPOLITANO. Thank you, sir. Let us see. We have Mr. 

Costa. 

Mr. COSTA. Thank you very much, Madame Chairperson, for 

holding this hearing this morning and the proposed legislation. I 

have several different questions, and let me begin I guess first of 

all with Mr. Johnson. If adopted into law, do you see any proposed, 

or any potential impact I guess is a better way to rephrase it, with 

regard to the Quantification Settlement Agreement that we 

reached several years ago on the Colorado River as it relates to 

water use impacting primarily California but other shared users as 

it relates to the record of decision? 

Mr. JOHNSON. This program actually supports the Quantification 

Settlement Agreement. Without ESA compliance, we would not be 

able to implement that. So I think that this program is very integral to that agreement and ensuring the long-term viability of that 

agreement. 

Mr. COSTA. In the definition of again this proposed legislation 

while it looks toward protection of the Multi-species Conservation 

Program, does it include—and I guess you would divide between 

the northern or the southern reaches of the Colorado River—the 

Grand Canyon area? By definition it is below Lee Ferry, is it not? 

Mr. JOHNSON. Right. The lower basin. 

Mr. COSTA. The lower basin. 

Mr. JOHNSON. The lower basin river starts at Lee Ferry. This 

program only covers the river from the upper reaches of Lake Mead 

to the Mexican border and the flood plain. The Grand Canyon is 

covered under the adapted management program associated with 

Glen Canyon Dam, and there is lots of activity related to the Grand 

Canyon and how the river is operated through the canyon. It is a 

separate program, a separate process that addresses the ecosystem. 

Mr. COSTA. Well that brings another question. As it relates to 

Glen Canyon and with great fanfare both Secretary Babbitt a number of years ago created the release program to improve the beaches and habitat and so forth. The report that was done on that 

seemed to indicate that notwithstanding the best intentions, it was 

less than successful. What have we learned about our ability to restore multi-species efforts with these types of various programs like 

the ones that are being proposed here? 

36 

Mr. JOHNSON. Well I think it is an ongoing effort, and I think 

as we get information and as the science becomes more accurate 

and more complete we make adjustments to ensure that we are 

doing the right thing to protect and enhance the species, and to try 

to move them toward recovery. That has been an ongoing process 

in the Glen Canyon effort. 

We are embarking on a new EIS related to the operation of Glen 

Canyon Dam. That is scheduled to be completed in about a year 

and a half, and we are looking at options in the Grand Canyon on 

how we operate that system and how we protect species. We are 

looking at things like a temperature curtain at Glen Canyon Dam 

that could increase temperatures and in fact enhance the production of the native species in the canyon. 

Mr. COSTA. But are there not limitations? I mean, we are in a 

conundrum, are we not, I mean, when you think about it as to 

what our abilities are to recreate habitat? We have two very important reservoirs with Lake Mead and Lake Powell as well. We now 

have extended periods, both on the upper basin and the lower 

basin, as it relates to drought conditions, and we know that the 

seven-party agreement as it relates to the river and the allocation 

of water is oversubscribed. So how do we pursue this effort? 

Mr. JOHNSON. Well I think that we have to manage the river system to accommodate. 

Mr. COSTA. As best we can but realizing we cannot, unless you 

want to eliminate the two reservoirs, which some would argue. You 

cannot turn back the clock completely. 

Mr. JOHNSON. Absolutely not. Those two reservoirs are absolutely critical to meeting the water needs of the southwest, and certainly it does not make any sense to not continue to have those. 

At the same time, we have to comply with the Endangered Species 

Act, and quite frankly, this program and what we are doing in the 

Glen Canyon effort, what is being done in the Upper Colorado 

River Recovery Program are all activities that are enhancing species and improving the species and addressing the needs of the species. 

Mr. COSTA. My time has expired. 

Mr. JOHNSON. We have to know how to manage the river system 

to meet human needs and to also meet the needs of the species. It 

is an ongoing effort, and we have to adapt our approach to doing 

that as necessary over time as we get new information. 

Mr. COSTA. Thank you, Madame Chairman. My time has expired. 

I guess at the end of the day we will continue to have this discussion as to whether or not the glass is half full or half empty, no 

pun intended. 

Mrs. NAPOLITANO. OK. Do you have a question? 

Mr. HELLER. Thank you, Madame Chairwoman. Commissioner, 

in your opinion the MSCP agreement, has that been an open process? 

Mr. JOHNSON. Yes, I believe it has. I think we have worked hard 

to be inclusive and to invite the public to participate in the process. 

Absolutely. 

Mr. HELLER. It has been raised in writing that some of the key 

documents such as the implementing agreement was not shared 

with the public. Can you respond to that? 

37 

Mr. JOHNSON. I was not involved in the details of developing that 

agreement, and I would like to defer that to some of the other parties that were involved in that if I can. 

Mr. HELLER. Sure. 

Mr. CAAN. Thank you. Thank you for the question, Congressman 

Heller. I have been involved in the process since 1996. It has been 

open. It has been available. Documents have been available for the 

public to look at. I could say that directly because our office initially operated the website that put all these documents for public 

review, public inspection. 

The Bureau of Reclamation now operates the website with our 

help. To address a previous question with respect to the public participation, the program documents—the documents that we are 

asking for in this legislation—provide for compliance and will provide assurance that for the 50 years of implementation this will be 

an open process. This will have a steering committee for the next 

50 years that will look at monitoring plans and science plans and 

yearly budgets so that in the future, to the extent that we can 

agree that the program documents will be complied with, which is 

one of the reasons we are asking for this legislation, this process 

will have that kind of oversight in the future. 

Everything is made public. It is all in the website. Our meetings 

are open to the public. We have a huge stakeholder committee, and 

it is clearly the interest of the stakeholders to make sure that each 

and every step is open to the public frankly because we get a lot 

of good comments and suggestions by having it as open as it is. 

Mr. HELLER. Thank you. Changing subjects just for a minute, 

Ms. Bitter Smith, on the 26 species, prior to this agreement how 

were they protected? 

Ms. BITTER SMITH. Madame Chairwoman, Congressman, nothing 

was happening with any great regard, and we have had great 

humor in talking about those species at my board level, as you can 

imagine. Hence the concern about making sure that we have met 

the Federal mandate because it does require us to do that in order 

to continue our water deliveries. So this is key, as you are alluding 

to in your question, for us to continue our mission in providing 

water resources to Arizona because up until that point we had no 

ability to manage and deal with the Federal requirements. 

Mr. HELLER. Thank you. I will yield back. 

Mrs. NAPOLITANO. Thank you. Mr. Udall. 

Mr. UDALL. I will pass. I do not have any questions. Thank you. 

Mrs. NAPOLITANO. Mr. Costa, any more questions? 

Mr. COSTA. Yes. I want to ask Mr. Zimmerman, and it is kind 

of a twist on—not a twist—but a follow up on the question I asked 

Mr. Johnson regarding the Quantification Settlement Agreement. 

Obviously that came with great pain and effort for California as a 

partner among the basin states, and I have heard part of your testimony but have not had a chance to read it. I wonder whether or 

not you believe that there will be any impacts, positive or negative, 

with regards to either pieces of legislation if they are implemented 

into law. 

Mr. ZIMMERMAN. Related to H.R. 2515, the Multi-Species Conservation Program, all of the parties to the Quantification Settlement Agreement are parties to the MSCP. They are participants. 

38 

All of the covered programs that are associated with the quantification settlement agreement are covered programs within the MSCP. 

So all of the California water and power contractors from the Colorado River are providing California’s funding for the 50-year life of 

the MSCP, and so I believe that I can say without reservation the 

State of California, the administration as well as all the contractors 

within southern California fully support implementation of the 

MSCP and passage of this legislation. 

Mr. COSTA. You and I know the folks in southern California say 

with great pride that you were able to achieve the milestones earlier than stated in the record of decision with regards to the Quantification Settlement Agreement. 

It is a little off track as it relates to these two pieces of legislation but I am wondering whether or not in working on the Colorado 

River Board there is a sense that with the current drought conditions impacting the Colorado River and again the point that I made 

earlier, the oversubscription of the river with regards to the contractors and the allocation of water, whether or not there is longterm consideration—you talk about the 50 years with these proposals and your other agreements—as to whether or not as we are 

continuing to gather more information with regards to climate 

change, whether or not we are moving into prolonged periods of 

droughts. 

There is some indication based on tree rings in the Sierra that 

the last 100 years have been particularly wet. If the next 100 years 

are particularly dry, what does that mean to those of you on the 

Colorado River Board and your allocation of water and your ability 

to try to balance all of these issues? 

Mr. ZIMMERMAN. We believe that the MSCP is a key element in 

addressing whatever may come about through climate change. We 

understand that through climate change, global warming, as you 

have further development on the Colorado River there will be more 

shortages to the water users within the lower basin. That is being 

provided for by the MSCP as far as providing the ESA compliance 

to continue operations, to continue some of the innovative programs 

that we have been able to implement within the lower basin to 

meet each of our critical water supply needs. 

So we believe that this legislation and this program is a key element to address that. We also have within the MSCP, as George 

Caan has indicated, the adaptive management aspects that we 

would be continuing to look at that so that we can maintain the 

compliance so that the water and power users can continue their 

operations. 

Mr. COSTA. Mr. Caan, you are a big believer in adaptive management? 

Mr. CAAN. Thank you for your question. I think adaptive management is absolutely critical to put together a 50-year program. 

There is no sense in moving forward and spending the money that 

we are spending without having sufficient resources devoted to understanding the effects of what we are doing. Those things that are 

working, let us continue, let us improve. Those things that are not 

working, let us agree that they are not working. Let us—— 

Mr. COSTA. It is in the agreements the difficulty oftentimes. 

39 

Mr. CAAN. I think that this program if you look at the participants—the scientists and biologists—and the work that is going on, 

that we have been provided throughout this process, I have a lot 

of faith that these scientists and biologists are committed to making what works work, and we have a sufficient amount of funding 

to be able to change in midstream. We are not looking at situations 

where someone is going to say this is not working, and we are all 

struggling to find dollars to try to fix it. 

Mr. COSTA. My time has expired. 

Mr. CAAN. We already indicated—— 

Mr. COSTA. And I think yours has too. 

Mr. CAAN. OK. Thank you. 

Mr. COSTA. Midstream. No pun intended. Thank you, Madame 

Chairperson. 

Mrs. NAPOLITANO. You are very welcome. Representative Heller. 

Mr. HELLER. Thank you, Madame Chairwoman. One more question here. Ms. Gillon, I was looking at your written testimony. I 

just want to quote a sentence here. It says, ’’Lastly the MSCP purports to ensure the survival of imperiled fish and wildlife for the 

next 50 years yet fails to address perhaps the largest threat wildlife will face in this century is global warming.’’ Do you consider 

this bill to be a global warming bill? 

Ms. GILLON. Congressman, no, I do not believe that this bill directly relates to global warming. The concern though is that because the MSCP as written assumes that past history is an indication of what will happen over the next 50 years and because this 

bill directs implementation of the program in accordance with those 

program documents as written two years ago to five years ago, that 

global warming will go unaddressed over the next 50 years and will 

continue to impact species in ways that we are not fully aware of 

what those impacts will be, and there is a concern that we do not 

know how the MSCP will address those impacts or whether the 

MSCP will address those impacts since they are not addressed at 

all in the program documents. 

Mr. HELLER. Is that accurate, George? 

Mr. CAAN. The effects of climate change are not addressed. However, we have established a priority use for water for environmental purposes. Forty to 50,000 acre feet of water are going to be 

either acquired through either changing vegetation or acquiring the 

water directly as a priority use for the environment, and that is because in order to obtain our Fish and Wildlife permit we as a group 

had to agree that this water would be made available. 

So if you look at 40,000 acre feet in the lower reaches out of 7.2 

million acre feet and the one and a half million acre feet delivered, 

we expect that we will be able to ensure that we could provide that 

priority water use. 

Mr. HELLER. Thank you. Yes, Commissioner? 

Mr. JOHNSON. Could I just add on that question? The MSCP has 

been formulated to consider a range of operations of the river, and 

that includes both dry periods as well as wet periods. On the Colorado River we are in the process of putting shortage guidelines in 

place that would define how shortages will be administered when 

there is not enough water to go around, and in fact the MSCP 

takes into consideration and actually covers that kind of an activVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
40 

ity. So to that extent we have considered the range of potential conditions out there that may exist on the river system. 

Mr. HELLER. Thank you. Thank you, Madame Chairwoman. 

Mrs. NAPOLITANO. Commissioner Johnson, if you consider that it 

has been information that the last 100 years have been wet years, 

then we are heading into a continued drought pattern, was that 

taken into consideration? 

Mr. JOHNSON. Certainly it is being considered in our shortage 

analysis. We are doing a separate EIS on the shortage guidelines 

on the Colorado River, and we are looking at the long-term tree 

ring, a much longer period of record on the Colorado River system, 

and we are doing some evaluations that has been and will be displayed in our EIS process for that. I cannot say that explicitly the 

MSCP did that same kind of analysis but it certainly did consider 

a range of potential operations on the system including dry years, 

certainly within the range of what we are anticipating for our 

shortage guidelines on the Colorado River. 

Mrs. NAPOLITANO. Well, all is well and good except in 50 years 

it is well into the 100-year drought. So if we are assuming that we 

are going to still have wet years and we continue on the drought 

pattern that we have seen, that should affect what happens with 

some of the water delivery, would it not? 

Mr. JOHNSON. Certainly dry conditions on the Colorado River are 

expected. I think the Colorado River is over-allocated. I think we 

have always anticipated that the day would come when there is not 

enough Colorado River water to go around. That is why we are developing our shortage guidelines today as to put procedures in 

place to deal with that when it occurs. 

Again I think that there is enough adaptive management worked 

into the process that we can deal with over a 50-year period and 

make adjustment if in fact conditions become worse than we have 

anticipated. 

Mrs. NAPOLITANO. But that really has not been specifically addressed in this project? 

Mr. JOHNSON. I do not believe that when we did all of the hydrologic analysis on the MSCP that we took that longer period of 

record into consideration. We certainly took dry cycles that have occurred in the last 100 years, and in fact we have had some pretty 

significant dry cycles on the Colorado River over that 100-year period, and we certainly considered the dry cycle that we are currently in but to say that we have done the same analysis that we 

have done in that shortage EIS, no, we did not get that explicit in 

the MSCP hydrology. 

Mrs. NAPOLITANO. OK. I will stop for a moment. I see people taking photographs. You do have to get permission from the Subcommittee to be able to take photographs. So I will stop now and 

ask anybody who wants to take photographs do them now. You will 

get a couple of minutes, and then after that I will ban you from 

taking photographs because they are very distracting. 

When I see a light, it takes away from my focus, and if you want 

to go ahead and take photographs. I know there were a couple of 

people earlier who had asked. You do have to get permission for 

either camera or picture taking because this is a committee hearing, and it is not a problem asking. Just let us know ahead of time 

41 

so that we are able to accommodate those individuals. Did you 

have a question, sir? You want to answer. OK. 

Mr. ZIMMERMAN. If I might, Madame Chairwoman, I would further respond to Bob’s comment on your latest question. I was the 

Chairman of the MSCP during the 10-year program development 

phase. As part of that, when the Bureau of Reclamation, as Bob 

has indicated, ran the models, they ran a couple different scenarios. One was looking at one set of shortage guidelines, another 

one at another level of shortage guidelines which would have greater impacts on the river, and so in part using the historic data and 

the past drought cycles there were two alternatives that were analyzed within the MSCP. 

One of the things I would like to point out is that the major 

water demands on the Colorado River are at the bottom of the system, our 1.5 million acre foot annual delivery to Mexico, as well as 

the delivery to the Imperial Valley, Coachella Valley, which is over 

3 million acre feet plus the delivery on the opposite side of the 

river in Arizona, which is another million acre feet. 

So most of the demands on the Colorado River system are at the 

bottom of the river, and so the water that is available, whether it 

is in a good hydrology or bad hydrology will be flowing in the river. 

Most of the conservation areas that will be developed will be developed in that stretch of the river. So there will be water, as George 

has indicated, to provide the 40 to 50,000 acre feet of water to develop the habitat and, second, to maintain the habitat. 

Mrs. NAPOLITANO. Sir, I hope you are right. I hope you will be 

here in 50 years to back up that statement, and when you talk 

about Mexico, there are some issues there because of the Rio 

Grande that we also have great concerns about how that water is 

not being delivered to the Rio Grande Valley. Ms. Gillon and Mr. 

Caan, is there a precedent for the language in section 5[b] which 

says that future changes to the ESA will not affect the lower Colorado MSCP unless the changes are specifically made applicable to 

it. Now why should Congress agree to that? 

Ms. GILLON. Madame Chairwoman, as far as I know—and I 

cannot say that I have read every statute ever passed by Congress—there is no precedent that I can find for Congress limiting 

itself in that way, and I would imagine that if it were to become 

quite unwieldy over the next 50 years to ensure that if you want 

a law to apply to the MSCP you specifically say that though. 

Mr. CAAN. Madame Chairwoman, in the development of the 

MSCP, one of the overriding principles we had was trying to provide certainty for the water and power users, the Federal and nonFederal parties. I do not know of language specifically like this in 

other bills. I do know issues like no surprises to provide a level of 

certainty has been part of policy. 

This language is and we debated this language considerably— 

should it be all acts of Congress? Should it be related specifically 

to the Endangered Species Act? And we agreed that when it comes 

to modifications to the Endangered Species Act what we want to 

make sure based on the investments that we made because a lot 

of these investments are being made up front to require land and 

water and other habitat is that if there are changes to the Endangered Species Act that those changes will not affect the MSCP unVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00045 Fmt 6633 Sfmt 6602 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
42 

less Congress specifically addresses it so that way there can be a 

full vetting of the affects that a change might have to the $626 million effort. 

We are not saying there cannot be changes. We are just saying 

that if there are changes we want the opportunity to come before 

you and your Committee to express what concerns we may have 

with those changes and then let you make a decision. We do not 

want it to be an unintended consequence of legislation that is acted 

upon without addressing specifically the MSCP. 

Mrs. NAPOLITANO. Thank you. Mr. Johnson, Ms. Gillon, if the 

Bureau of Reclamation is running this program since 2005, why is 

this legislation necessary? 

Mr. JOHNSON. We think that the legislation is helpful. It provides 

a long-term commitment to fund and carry out the program. We 

have authority to implement this program without further legislation. That is in my written testimony. It was also in my oral testimony. So we have that authority. We have to comply with ESA, 

and we will do that, and that is part of implementing this program. 

That said, we think that this legislation is helpful in that it puts 

the Congressional stamp of approval on the program and commits 

us for the long-term effort and Congress as to the long-term effort 

of trying to implement the program. 

Mrs. NAPOLITANO. Thank you. To any of the representatives, has 

there been any effort to work with the entities on the other side 

of the Mexican border to ensure successful recovery for the river 

system, not just on the U.S. side, and is it possible that neglect of 

habitat on the Mexican side will wipe out attempts by the MSCP 

to stabilize habitat, and protect and recover species on the U.S. 

side? 

Mr. JOHNSON. I could take a shot at that, and I am sure these 

folks can add in. Mexico is another country. We have a separate 

process for dealing with the country of Mexico as it relates to the 

Colorado River. We have an international boundary and water commission that we work through under a treaty to address issues 

with Mexico. There is a provision that is a minute to the treaty, 

minute 406 that actually established a basis for cooperation between the two nations as it relates to the ecosystem and addressing 

the Colorado River delta and environmental issues in Mexico. So 

there is an ongoing process to work with Mexico to address those 

issues. 

We believe that that is separate. That is an international process. A separate process from the MSCP, and the MSCP addresses 

the needs in the United States. We have an international process 

to work with Mexico. 

Mrs. NAPOLITANO. Would you not think it might have some affect? 

Mr. JOHNSON. Well I think we are concerned about dealing with 

environmental issues in Mexico as well. There is lots of habitat 

down there and lots of species and having cooperative programs 

with Mexico to address that certainly is a beneficial thing. But 

there are ongoing, separate programs on separate processes. 

Mrs. NAPOLITANO. Was there not a suit filed against the U.S. by 

Mexican environmentalists and U.S. environmentalists over that 

water? 

43 

Mr. JOHNSON. Yes, there was, and that suit has been dismissed. 

Mrs. NAPOLITANO. OK. So there still is a concern. 

Mr. JOHNSON. Out of comity we work very hard with the country 

of Mexico to address their issues through the IBWC associated with 

water quality, water quantity and also environmental issues 

through this minute 406 that I was talking about, and so certainly 

we are concerned about the country of Mexico, and we want to 

work with them as best we can to address issues that they may 

have. 

Mrs. NAPOLITANO. Thank you, Mr. Johnson, and with that we 

will conclude this panel. Thank you for your testimony. It was 

very—how would I say—insightful. 

Mr. HELLER. I also want to thank you for this opportunity for 

this hearing. I want to let you know there is a companion bill on 

the other side with Senator Kyl that is supported by Senators 

Ensign and Reid, and also Senator Feinstein from California. 

Thank you so much for your time on this bill. 

Mrs. NAPOLITANO. You are very welcome. Panel, you are dismissed. Again, thank you for your service. We will be submitting 

some questions to you. We would appreciate your response. The 

members may have some questions so we will keep the file open 

for 10 days to be able to have more input. So you are welcome to 

submit any comments that you wish. With that, thank you panel, 

and we will move to the second panel. Mr. Johnson, you may as 

well keep your seat. Mr. Joe Shirley, Mr. Jim Dunlap, Patricia 

Lundstrom, Gregg Houtz and Gerald Zimmerman. 

[Pause.] 

Mrs. NAPOLITANO. While the panel is taking their seat, I will ask 

Mr. Johnson, you stated that the Bureau is not a participant in the 

Settlement Agreement, and I would like to include six letters for 

the record that verify the Bureau’s involvement in the process. If 

you wish, we will give you a copy of them. 

Mr. JOHNSON. Thank you. 

Mrs. NAPOLITANO. And these are for the record, Mr. Johnson. 

Mr. JOHNSON. Thank you. 

Mrs. NAPOLITANO. OK. I think we will continue the Subcommittee hearing on H.R. 1970, the Northwestern New Mexico 

Rural Water Projects Act. We have Commissioner Robert Johnson 

still in the hot seat, accompanied by W. Patrick Ragsdale, Director 

of the Bureau of Indian Affairs. Second we have Joe Shirley, Jr. 

from Window Rock, Arizona. Welcome. President of the Navajo Nation. 

Third, we have Mr. Jim Dunlap, Chairman of the Interstate 

Stream Commission of the State of New Mexico in Santa Fe. Welcome. And fourth, Patricia Lundstrom, President of Northwestern 

New Mexico Council of Governments, based in Gallup, New Mexico. 

Welcome to you too. Number five is Gregg Houtz, Deputy Council 

for the Arizona Department of Water Resources in Phoenix, Arizona, and finally Mr. Gerald Zimmerman of Colorado River Board 

of California in Glendale, California, staying with us and again 

thank you. If you will start, Mr. Johnson. 

44 

STATEMENT OF ROBERT JOHNSON, COMMISSIONER, BUREAU 

OF RECLAMATION, WASHINGTON, D.C.; ACCOMPANIED BY W. 

PATRICK RAGSDALE, DIRECTOR, BUREAU OF INDIAN 

AFFAIRS, WASHINGTON, D.C. 

Mr. JOHNSON. Madame Chairwoman, it is a pleasure to be here 

again and testify on H.R. 1970. I have got Bureau of Indian Affairs 

Director Pat Ragsdale with me, and he has just a few short comments as well. We have submitted written testimony for the record, 

and we will limit our oral comments to just a short summary. 

First, let me express my personal appreciation for the needs of 

the people of the Navajo Nation for water. Much of the Nation is 

without potable water supplies, except for what is literally hauled 

to many of the remote locations of the reservation. Reclamation has 

a long history of working with the Nation to provide technical assistance and some financial assistance in addressing water needs. 

I am proud of my personal involvement. Over the years as Regional 

Director of the Lower Colorado River Region, I visited the reservation and personally worked with them on many of these issues. 

Notwithstanding our understanding of the water needs of the 

Nation, the Administration cannot support the legislation as currently written. Our written testimony provides details of our concerns, and I will not reiterate those here. Suffice to say that the 

cost and funding mechanisms for the project are of concern. In addition, there are other provisions of the bill that are also cause of 

concern for Reclamation. 

I am, however, happy to report that the Indian Water Rights Office of the Department of Interior and Reclamation’s staff are participating with the State of New Mexico and the Navajo Nation in 

discussions regarding our concerns. 

A meeting was held just yesterday here in Washington and another is scheduled for next week in Santa Fe. The state and the 

Nation have been very forthcoming in those discussions, and we 

appreciate their efforts to consider our concerns. We look forward 

to continued dialogue. That concludes my oral testimony, Madame 

Chairwoman, and I would be happy to answer questions. 

[The prepared statement of Mr. Johnson follows:] 

Statement of Robert Johnson, Commissioner, Bureau of Reclamation, and 

W. Patrick Ragsdale, Director, Bureau of Indian Affairs, U.S. Department 

of the Interior, on H.R. 1970 

Chairwoman Napolitano and members of the Subcommittee, we would like to 

thank you for the opportunity to appear today to present the Administration’s views 

on H.R. 1970, the Northwestern New Mexico Rural Water Projects Act. The Department of the Interior’s support for negotiated settlements as an approach to resolving 

Indian water rights remains strong. The Administration, however, has concerns that 

H.R. 1970 would increase mandatory spending, delay the full cost of the legislation 

beyond the 10 year Congressional scorekeeping window, not provide for adequate 

cost sharing by non-Federal interests, and likely include costs that exceed the Federal government’s underlying liability. The Administration did not participate in the 

drafting of the water rights settlement embodied in H.R. 1970, and does not support 

a water settlement under these circumstances. For these reasons, the Administration opposes the cost and cannot support the legislation as written. We would like 

to work with Congress and all parties concerned in developing a settlement that the 

Administration can support. 

H.R. 1970 would amend Federal statutes that relate to the Bureau of Reclamation and the use of water in the Colorado River basin. Major provisions include: (1) 

authorization for the Bureau of Reclamation to construct and operate a pipeline (formally titled the ‘‘Northwestern New Mexico Rural Water Supply Project’’, but genVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00048 Fmt 6633 Sfmt 6621 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
45 

erally known as the ‘‘Navajo-Gallup Pipeline Project’’) to bring water from the San 

Juan River to the eastern portion of the Navajo Reservation, the Jicarilla Apache 

Reservation, and the City of Gallup, New Mexico; (2) creation of a Reclamation 

Water Settlements Fund in the Treasury that could be used to fund activities under 

this bill and future Indian water rights settlements, to be funded by the diversion 

of revenues from the existing Reclamation Fund; (3) authorization for the Secretary 

of the Interior to reserve up to 26 megawatts of power from existing reservations 

of Colorado River Storage Project power for Bureau of Reclamation projects for use 

by the Northwestern New Mexico Rural Water Supply Project; and (4) authorization 

for the Secretary to rehabilitate existing irrigation projects, develop groundwater 

wells, and establish other funds for the benefit of the Navajo Nation. The bill also 

includes provisions that would resolve the Navajo Nation’s Federal Indian reserved 

water rights claims in the San Juan River in New Mexico, although the United 

States was not party to the final negotiations on this issue. 

The Role of the Criteria and Procedures 

The Administration has been actively engaged in the New Mexico water settlements. Secretary Kempthorne committed during his confirmation before the Senate 

to bringing his energy and concern to the pending water settlements in New Mexico. 

Consistent with this pledge, we have made it a high priority to better understand 

the complex issues that must be resolved in each of the proposed New Mexico settlements. Our water rights team has made several trips to New Mexico to visit with 

the Pueblos, Tribes, the State, local communities, water users, and other constituencies to these proposed settlements. A few months ago, at the Secretary’s request, 

key officials from the Departments of Justice and the Interior and the Office of 

Management and Budget traveled to Navajo country to observe first-hand the difficult issues related to water delivery on the Reservation. 

Madam Chairwoman and members, we are keenly aware of the needs in this area 

of the United States. On the Navajo Reservation, some people routinely haul water 

for 20-30 miles several times a week to provide for their basic household needs. 

Families must travel extended distances to do laundry because washing machines 

require water hookups which they do not have. There is no question that the Administration officials who traveled to the Reservation came away with powerful and 

indelible images as well as a better understanding of the needs of Reservation inhabitants seeking access to basic services that are taken for granted by all but a 

few Americans. 

Nonetheless, despite our understanding of the human needs on the Navajo Reservation, we firmly believe that the resolution of substantive and procedural problems raised by this bill will require the active involvement of all parties to the proposed settlement. It is important to have an open and full discussion on all aspects 

of the settlement, including the specific goals of the Navajo Nation and the State 

of New Mexico for the settlement of these claims and whether these goals can be 

met by alternative and potentially less expensive means. This settlement was developed largely without Federal involvement, and, consistent with Secretary 

Kempthorne’s commitment to address these issues, we would welcome the opportunity to continue to engage with the Committee and proponents of this settlement 

to see if we can identify areas of common ground sufficient to move forward with 

the full support of the Administration. 

One of the first steps in this process, Madam Chairwoman, is for us to acknowledge the three New Mexico settlement proposals that are now being advocated to 

Congress. While the Navajo settlement in the San Juan River is the subject of today’s hearing, there are other settlements proposed in New Mexico, as well as in 

other western states, that require active Federal participation in negotiations. If enacted, the cost of H.R. 1970, alone, is estimated to exceed 1 billion dollars. If the 

other two proposals from New Mexico, Aamodt (involving the Pueblos of Nambe, 

Pojoaque, San Ildefonso, and Tesuque) and Abeyta (involving the Pueblo of Taos), 

about which the Administration also has raised serious concerns, were to be enacted 

as currently envisioned by their proponents, total expenditures for Indian water 

rights settlements in New Mexico alone are likely to exceed $1.5 billion. 

The Administration believes that the policy guidance found in the Criteria and 

Procedures for the Participation of the Federal Government in Negotiations for the 

Settlement of Indian Water Rights Claims (‘‘Criteria’’) (55 Fed. Reg. 9223 (1990)) 

provides a flexible framework in which we can evaluate the merits of this bill. The 

Criteria provide guidance on the appropriate level of Federal contribution to the settlements, incorporating consideration of calculable legal exposure plus costs related 

to Federal trust or programmatic responsibilities. In addition, the Criteria call for 

settlements to contain non-Federal cost-share proportionate to the benefits received 

by the non-Federal parties, and specify that the total cost of a settlement to all parVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
46 

ties should not exceed the value of the existing claims as calculated by the Federal 

Government. As we have testified previously, the Criteria is a tool that allows the 

Administration to evaluate each settlement in its unique context while also establishing a process that provides guidance upon which proponents of settlements can 

rely. 

Provisions of Particular Concern in H.R. 1970 

We would like in the remainder of this statement to provide a synopsis of substantive concerns regarding H.R. 1970. We will start with the high cost of this settlement. The Administration has concerns about the costs associated with this legislation, and currently opposes the nearly $1 billion financial commitment embodied 

in this bill. We are also concerned about the large number of authorizations that 

the bill contains, including the indefinite amount authorized for construction of the 

Navajo-Gallup Pipeline. We have not yet been able to fully analyze the costs of this 

legislation. In 2005, the Bureau of Reclamation estimated that the price of the Navajo-Gallup pipeline would be approximately $716 million. Reclamation is in the process of updating this appraisal-level price estimate to better reflect current construction conditions, and expects an upward adjustment to nearly $1 billion for this feature alone. In addition, H.R. 1970 would authorize Federal expenditures of $30 million for groundwater wells, $23 million for rehabilitation of Fruitland-Cambridge 

and Hogback-Cudei irrigation projects, $11 million for other irrigation projects, $5 

million for hydrographic surveys, and $50 million to be placed in a Navajo Nation 

Water Resources Development Trust Fund to be used by the Navajo Nation for 

water facility construction and maintenance or implementation of water conservation measures. 

The Administration has serious concerns regarding the proposal contained in Title 

II of this bill to establish a ‘‘Reclamation Water Settlements Fund’’ within the 

United States Treasury. Title II provides that revenues of up to $100 million a year 

for Fiscal Years 2018 through 2028, which is a time period outside the Congressional scorekeeping window, be diverted from the Reclamation Fund into the Water 

Settlements Fund. H.R. 1970 provides that moneys in the Water Settlements Fund 

would be available without further appropriation to fund water supply infrastructure authorized under this bill if there turns out to be insufficient funding available 

through the regular appropriations process to meet the funding and construction 

deadlines established in this bill. The second priority for the Water Settlements 

Fund would be to implement other Indian water rights settlements approved by 

Congress, including water supply infrastructure, rehabilitation of water delivery 

systems, fish and wildlife restoration or environmental improvement. The Reclamation Water Settlements Fund would terminate in 2030 and any remaining balance 

would be transferred to the General Fund of the Treasury. 

We believe the sponsors of this legislation are looking for stable mechanisms to 

ensure the availability of funding for Indian water rights settlements around the 

West. We are concerned, however, that this proposal would allow direct spending 

not subject to further appropriations for future settlements, preventing future Presidents and Congresses from setting their own priorities with regard to budgeting and 

appropriating Federal tax dollars. At the present time, use of monies from the Reclamation Fund are discretionary and subject to annual appropriations by Congress. 

While H.R. 1970 does require some cost-sharing in the form of a requirement for 

partial reimbursement of construction costs from the City of Gallup and the Jicarilla 

Apache Nation, it is limited. The City of Gallup and the Jicarilla Apache Nation 

would be required to repay the portion of the construction costs for the pipeline and 

associated facilities that the Secretary would allocate to them as their responsibility, 

but only to the extent of their ability to pay, or alternatively, a minimum of 25% 

of such allocated construction costs, within 50 years of project completion. 

Project proponents assert that the Navajo-Gallup Pipeline Project would qualify 

as a rural water project under the rural water program being established by the 

Bureau of Reclamation pursuant to the Rural Water Supply Act of 2006 (P.L. 109- 

451), legislation which was passed in December of 2006. However, the proposed 

pipelines envisioned by this bill have not received the level of scrutiny that this 

newly established program will provide. Under the rural water program, each 

project must be investigated prior to authorization, and the Secretary must consider 

whether the non-Federal project entity has the capability to pay 100 percent of the 

costs associated with the operations, maintenance, and replacement of the facilities 

constructed or developed as part of the rural water supply project. The Secretary 

must also recommend an appropriate non-Federal cost-share for the proposed rural 

water project based on the capability-to-pay of project sponsors, or at least 25% of 

total construction costs. The program allows the Secretary to consider deferring construction costs allocated to Indian tribes. Under this new program, the Secretary is 

47 

to forward to Congress recommendations regarding whether or not the proposed 

rural water project should be authorized for construction based upon appraisal level 

and feasibility studies and the eligibility and prioritization criteria developed pursuant to the Rural Water Supply Act. The rural water program is intended to target 

communities of 50,000 inhabitants or fewer. The Secretary may require larger communities to pay a higher portion of project costs. Since Reclamation’s rural water 

program is still under development, we have not evaluated the activities proposed 

in H.R. 1970 under the rural water project eligibility and prioritization criteria; 

these criteria are currently being developed by Reclamation. Upon development, we 

will actively evaluate whether this project would meet such criteria and could be 

recommended to Congress for authorization as a rural water project. 

We have identified a number of other concerns regarding this bill. These include 

potential interpretation conflicts concerning the Navajo Indian Irrigation Project; 

the timing of transfers of title to the Nation; the authorization of Federal grants 

to support the repair and rehabilitation of certain irrigation projects, and concern 

that this bill might give the State of New Mexico an inappropriate role in the operation of Federal facilities that are currently operated by the United States under 

the Colorado River Compact and Reclamation law. Also, the Department of Justice 

has concerns about the waivers and releases referred to in section 403. First, they 

are still reviewing these waivers and releases for adequacy. Second, waivers and releases should be stated in full in the legislation because they are critical to the finality of the agreements. 

We also note that the bill should require the Secretary of the Interior, rather than 

the Secretary of the Treasury, to invest amounts in the proposed Reclamation Water 

Settlements Fund, in order to make use of the investment expertise of Interior’s Office of the Special Trustee for American Indians. 

Comparing this Bill with Other Water Rights Settlements 

Much has been said about the position taken by the Administration on water 

rights and other settlements over the past few years, suggesting that not supporting 

H.R. 1970 as written would be inconsistent with the positions we have taken on 

previously introduced water settlement bills. We want to squarely address these 

issues. 

First, we emphasize that each proposed settlement is unique. The Administration 

evaluates each proposed settlement individually. Just as we did with each of the 

water settlements that have been proposed in recent years, notably the Arizona 

Water Rights Settlement Act (P.L. 108-451), the Snake River Water Rights Settlement Act (P.L. 108-447), and the San Joaquin River settlement that is proposed in 

legislation pending in this Congress (S. 27 and H.R. 24), the Administration must 

evaluate this proposed settlement in its unique context to determine to what extent 

it is consistent with our programmatic objectives and our responsibility to American 

taxpayers as well as our responsibility to protect the interests of the Navajo Nation. 

All of these previous settlements encompassed multiple objectives, providing comprehensive solutions to multi-faceted problems. 

In the case of the Arizona Water Rights Settlement Act, the settlement resolved 

a dispute over the financial repayment obligation of Arizona water users for the 

Central Arizona Project (CAP), with significant amounts of money at stake. Federal 

representatives recognized that the CAP operational flexibility necessary to resolve 

the dispute could only be granted if sufficient legal and legislative protection was 

achieved to assure tribal access to, and use of, CAP project water. Enactment of the 

Indian water rights settlements in that Act was key to resolving larger legal issues 

involving CAP repayments by Arizona water users. Achieving final settlement of 

these larger issues made the legislation generally acceptable to the Administration, 

although our testimony did express concern about the cost of the settlement. 

The Snake River Settlement in Idaho entailed several complex Endangered Species Act components that allowed further water resources development to occur for 

the Nez Perce Tribe and other water users in a manner that also fulfilled the Department’s obligation to protect and recover listed species. 

The other settlement that has been compared to this bill, the San Joaquin Restoration Program, is in fact not connected to any Indian water rights settlement. 

The San Joaquin Restoration Program implements a settlement of a lawsuit that 

had been ongoing for over eighteen years, where a Federal judge had concluded that 

Reclamation’s operations violated a provision of California law. The San Joaquin 

restoration program also involves cost shares, authorizing up to $250 million of new 

Federal appropriations but only as a match for non-Federal funding of the restoration costs. This means that the State of California and Friant water users are funding a significant portion of the restoration costs. Approximately $200 million of 

48 

State bond funds for projects that will directly contribute to restoration efforts have 

already been approved by California voters. 

We wish to reiterate however that the Administration is committed to ensuring 

consistency with the Criteria and Procedures. The settlement of the Navajo claims 

to the San Juan River proposed in this bill has a high Federal cost without appropriate safeguards that carrying out the authorized activities would accomplish the 

goals and objectives of the proposed settlement. These kinds of analyses should be 

completed prior to the passage of such a large settlement proposal. In light of the 

goal of finality, it is especially troubling that this bill does not address the distribution systems that must be constructed before any water will actually reach the 

homes of those who need it. 

Conclusion 

The Administration and Secretary Kempthorne remain committed to supporting 

the Indian water right settlement process and ensuring that such settlements fulfill 

the Federal Government’s responsibilities to Indian Tribes while also protecting the 

interests of the taxpaying public. The Bureau of Reclamation, the Secretary’s Indian 

Water Rights Office, and many others in the Department are vigorously working to 

develop the information and documentation necessary to support a full and open discussion of this settlement. This includes already having developed a draft environmental impact statement on the proposed pipeline and completing the hydrologic determination on water availability in New Mexico. We expect to have an updated appraisal-level estimate of the costs of constructing the pipeline completed in the near 

future. 

The Administration hopes that the entities proposing this legislation, including 

the Navajo Nation, the City of Gallup, the State of New Mexico, and the Jicarilla 

Apache Nation, will agree to work together with us towards the common goal: a settlement that will ensure that the Navajo obtain a secure, economically beneficial 

water supply consistent with our obligations to the taxpaying public. A clean, reliable water supply is of utmost importance to the members of the Navajo Nation, 

as it is to all Americans, and the United States is committed to working towards 

achieving it. While much work remains ahead, we are hopeful that this hearing will 

assist in advancing a process that results in a successful outcome. 

Madam Chairwoman, this completes our statement. We would be happy to answer 

any questions the Committee may have. 

Mrs. NAPOLITANO. Thank you, Mr. Johnson, and next I would 

like to call upon Mr. Joe Shirley, Jr., President of Navajo Nation, 

Window Rock, Arizona. 

STATEMENT OF JOE SHIRLEY, JR., PRESIDENT, 

NAVAJO NATION, WINDOW ROCK, ARIZONA 

Mr. SHIRLEY. Thank you, Madame Chairwoman Napolitano, 

Committee members. Thank you for the opportunity to testify. As 

I speak to you now many of the 80,000 Navajo men, women and 

children who live within the proposed Navajo Gallup Water Supply 

Project service area are hauling water in the backs of their pickup 

trucks for drinking, cooking and washing. The centerpiece of 

H.R. 1970 would authorize the construction of the Navajo Gallup 

Water Supply Project which will supply water to thousands of 

Navajo people. 

While the project will not entirely eliminate water hauling on the 

Navajo Nation, it is a giant step toward that goal, and it is the 

foundation that is essential for economic development. Last month 

I spoke at an EIS hearing in support of the Navajo Gallup Water 

Supply Project. As I listened to the stories of the Navajo people 

who have spent their scarce economic resources hauling water for 

basic domestic use, it was impossible not to be moved. At the hearing a local community presented drawings by Navajo schoolchildren who have never known running water. 

49 

Recently, representatives from the Administration witnessed 

firsthand the hardships endured by Navajo families who haul 

water from public watering points. While I believe these officials 

were moved by what they saw and heard, I understand that there 

are concerns that the project is too expensive. While the anticipated $714 million cost is a significant sum, the cost of the project 

and the settlement must be put into perspective. OMB’s assertion 

that H.R. 1970 is too expensive may be based on an overly restrictive interpretation of the criteria and procedures for participating 

in Indian water rights settlements. 

This view is inconsistent with the three water rights settlements 

signed into law by President Bush in the Rural Water Supply Act 

of 2005. Further, the ramifications of not passing this legislation 

could force the Navajo Nation into litigation to determine its water 

rights. Such litigation could jeopardize the allocations made by 

interstate compacts concerning the Colorado River basin. Congress 

simply cannot afford to let this settlement fail. 

Finally we understand that the State of Arizona has concerns 

about both the settlement agreement and legislation and is advocating a comprehensive settlement to protect its interests including 

a resolution that the litigation in Navajo Nation v. United States. 

We strongly disagree. The settlement with New Mexico does not 

impair Arizona’s ability to reach a settlement with the Navajo Nation concerning its lower basin claims. 

While the settlement envisions the delivery of water to the lower 

basin in Window Rock, Arizona, from the project, nothing diminishes the right of Arizona to negotiate all of the terms for water 

delivery to Window Rock as part of a separate agreement with the 

Navajo Nation. The Navajo Nation has attempted to quantify its 

lower basin claims with Arizona in the Navajo Nation v. United 

States litigation. 

Settlement discussions with Arizona are ongoing and will continue regardless of the outcome of the settlement with New Mexico. 

However, resolution of Navajo claims in Arizona will likely take 

several years. If such a settlement can be reached without delay or 

impairment of our settlement with New Mexico, we would not object to including an Arizona settlement in this bill. But to require 

an Arizona settlement in order for New Mexico to move forward, 

the Navajo Nation and the State of New Mexico will be punished 

for their good faith efforts that resulted in this concrete settlement. 

This settlement would keep the Navajo Nation rights with the 

New Mexico’s compact apportionment. As such, this settlement 

benefits all seven Colorado River basin states, and we should not 

jeopardize this achievement by trying to settle unrelated issues 

with Arizona. The Navajo Nation and its people have respected 

their treaty obligations. In times of crisis, brave Navajo men and 

women have rushed to their country’s aid and fought and died not 

only for the preservation of the American ideal but also to preserve 

our Navajo culture and to secure a Navajo homeland for our children. 

A homeland for the Navajo people is not merely a piece of land 

between our four sacred mountains but is a place where our culture, our language, our way of life and our people can live and 

grow. Without water, viable economic and social communities withVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00053 Fmt 6633 Sfmt 6602 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
50 

er and die. So I ask you today to honor the treaty of 1868 and to 

help bring water to the great Navajo Nation. Thank you very 

much. 

[The prepared statement of Mr. Shirley follows:] 

Statement of President Joe Shirley, Jr., 

Navajo Nation, on H.R.1970 

Thank you Chairwoman Napolitano and members of the Water and Power Subcommittee of the House Committee on Natural Resources. My name is Joe Shirley, 

Jr., and I am President of the Navajo Nation, a federally recognized Indian nation 

with the largest reservation in the United States. I appreciate this opportunity to 

share with you the Navajo Nation’s strong support for House Bill 1970, the Northwestern New Mexico Rural Water Projects Act. I also wish to convey the gratitude 

of the Navajo Nation to Congressman Tom Udall for his commitment to improving 

the lives of the Navajo People and for his leadership in sponsoring this important 

legislation. 

The Northwestern New Mexico Rural Water Projects Act serves two important 

purposes. First, it would authorize the Secretary of the Interior to execute, on behalf 

of the United States, the Settlement Agreement to quantify the Navajo Nation’s 

water rights in the San Juan River Basin in New Mexico. The Settlement Agreement was overwhelmingly approved by the Navajo Nation Council in December of 

2004 and executed with the State of New Mexico in April of 2005. It reflects almost 

a decade of negotiations to carefully balance a variety of demands on a limited resource. Second, the Act authorizes construction of much needed water projects for 

the Navajo Nation. As such, this legislation represents an important step forward 

in moving the Navajo Nation towards self-sufficiency, and may represent the most 

significant act of Congress concerning the Navajo people since the ratification of our 

Treaty with the United States in 1868, 139 years ago this month. 

As witnesses to this important event, I am here with Mr. George Arthur, Chair 

of the Resources Committee of the Navajo Nation Council, Mr. Lorenzo Bates, Chair 

of the Budget and Finance Committee of the Navajo Nation Council, Ray Gilmore, 

Chair of the Navajo Nation Water Rights Commission, and Lena Fowler, Vice-Chair 

of the Navajo Nation Water Rights Commission. In the Treaty of 1868, the Navajo 

leaders pledged their honor to keep peace with the United States and, in return, 

the United States pledged to assist the Navajo People in creating a permanent 

homeland on their reservation lands. No lands can be a permanent homeland without an adequate supply of water, especially potable water. 

The Settlement Agreement 

When New Mexico Governor Richardson and I signed the Settlement Agreement 

in April 2005, the State of New Mexico and the Navajo Nation set into motion the 

means to resolve a century-old controversy concerning water rights in the San Juan 

River basin, which could have persisted for decades to come through long, protracted 

litigation. The State of New Mexico and the Navajo Nation spent years crafting a 

settlement that would protect exiting uses from the San Juan River while ensuring 

that the Navajo Nation would receive a firm supply of drinking water to sustain the 

Navajo Reservation as a permanent homeland for the Navajo People. House Bill 

1970 authorizes the Secretary of the Interior, on behalf of the United States, to join 

Governor Richardson and me in a Settlement Agreement that quantifies the Navajo 

Nation’s water rights in the San Juan River Basin in New Mexico in a manner that 

represents a win-win outcome for all parties, including the Navajo Nation, the nonNavajo water users, the State of New Mexico and the United States. 

The San Juan River basin contains all the elements that have made Western 

water issues so contentious over the years: a limited supply of water, competition 

between Indian and non-Indian irrigators, the presence of federally protected endangered fish species, and not one, but four federal Reclamation projects. In other basins, that same mixture of interests has lead to contentious litigation and even violence. But in the San Juan River basin, the Navajo Nation has worked in cooperation with its neighbors on issues such as native fish recovery, shortage sharing during periods of drought, and water development for municipal and power interests. 

The history of this cooperation is reflected throughout the Settlement Agreement. 

For example, the Settlement Agreement contains provisions to protect the interests of the non-Navajo water users in the basin. The Navajo farmlands at the Hogback and Fruitland irrigation projects, downstream of the non-Indian water users 

on the river, possess the senior priority on the river. Thus, during the dry summer 

months, when there is insufficient water in the river to satisfy all water uses, the 

51 

Navajo Nation could exercise its senior priority to make a ‘‘call’’ on the river and 

stop the upstream diversions. To minimize the likelihood of calls on the upstream 

diversions, under the Settlement Agreement, the Navajo Nation has committed to 

utilize a portion of its Navajo Reservoir supply at the Hogback and Fruitland 

projects to ensure that more ‘‘run of the river’’ water would be available for the nonNavajo water users. Without the settlement, a call would be necessary during the 

irrigation season almost every two years, but with the settlement, the risk that a 

call will be made is less than one year out of twenty (20). 

The Settlement Agreement also includes specific provisions to firm the water supply for existing federal Reclamation projects including the Animas-La Plata Project 

and the San Juan-Chama Project. The Animas-La Plata Project is an important 

project for the basin, and is a necessary component of the settlement approved by 

Congress for the Colorado Ute Tribes. The San Juan-Chama Project provides drinking water for the cities of Albuquerque and Santa Fe. This transbasin diversion also 

helps New Mexico meet its compact obligations to the State of Texas and provides 

a supply of water that can be used for two separate water rights settlements involving the Pueblo of Taos and four northern Pueblos in the Aamodt litigation. 

In terms of protecting federal interests in New Mexico, including the San JuanChama Project, the importance of the Settlement Agreement to the United States 

cannot be overstated. 

The Navajo-Gallup Water Supply Project 

The centerpiece of the Bill, however, is the authorization for construction of the 

Northwest New Mexico Rural Water Project, commonly known as the Navajo-Gallup 

Water Supply Project. This project will provide a firm, sustainable supply of municipal water for the Navajo Reservation, the City of Gallup and the Jicarilla Apache 

Nation. Many of the 80,000 Navajo men, women, and children who live within the 

project service area, including Navajo Code Talker Frank Chee Willeto, presently 

haul water for drinking and cooking. Although construction of the project will not 

necessarily eliminate all water hauling on the reservation, this project will allow the 

Indian Health Service to expand distribution systems to provide potable water delivery to more homes, and creates growth corridors within the Navajo Nation where 

future communities can be built with ready access to roads, electricity and potable 

water. As such, this project represents a critical component of the Navajo Nation’s 

economic development strategy. While construction of the pipeline may not represent a condition sufficient to ensure economic prosperity for the Navajo People, 

surely such prosperity will never be possible in the absence of a sustainable potable 

water supply. 

In March of this year, the Department of the Interior released the Planning Report and Draft Environmental Impact Statement for this project. I thank Secretary 

Kempthorne and his Counselor Michael Bogert for their leadership in releasing this 

critical document, in addition to the release of the hydrologic determination that 

there is sufficient water for the project. 

Earlier this month, I spoke at the public hearing in Farmington, New Mexico, concerning the project in order to deliver the message that the Navajo Nation strongly 

supports the construction of the Navajo Gallup Water Supply Project. At the hearing, I was moved by the testimony of the Navajo people, most of them water haulers. I believe that the federal officials at the hearings were also moved by their testimonies. Mr. Frank Chee Willeto, a Navajo veteran and former Navajo Code Talker, who recently received the Congressional Silver Medal, eloquently testified that 

he and other veterans, despite financial assistance from the Veterans’ Administration and the Navajo Nation, were unable to secure a loan for his home due to the 

absence of water in his community for fire protection. Ms. Gloria Skeet spoke eloquently about how Bread Springs Chapter, south of Gallup, needs the project because her community currently faces water shortages. Ms. Skeet, a former educator, 

sees that the construction of the project will allow our children to build productive 

and meaningful lives at home. I also viewed drawings by Navajo school children 

from Lake Valley Chapter depicting trucks hauling drinking water to their homes. 

These drawings will be submitted to the Committee in our supplemental statement. 

Based on these testimonies, I reiterate my message that the Navajo Nation strongly 

supports the construction of the Navajo-Gallup Water Supply Project. 

OMB Concerns about Costs 

We recently invited representatives from the Administration, including the Department of the Interior and the Office of Management and Budget, to witness firsthand the hardships endured by Navajo families who must drive considerable distance to haul water from public watering points. They heard and saw everything 

I have just described to you. They also heard about the negative health effects that 

52 

occur when they do not have access to potable water, including the story of Lucy 

Cayetano who suffers from various illnesses because she does not have easy access 

to potable water. Studies have shown empirically that the lack of potable water is 

a critical health issue for the Navajo people, but I also wonder what the psychological effects will be for our children who believe that water comes from trucks, 

rather than from drinking fountains or faucets. 

We believe the Administration representatives received a realistic, first-hand understanding of the enormity of the problem the lack of water brings. However, we 

also understand that the Office of Management and Budget believes the Navajo-Gallup Water Supply Project to be ‘‘too expensive.’’ Their belief is apparently based on 

the Planning Report for the project, in which the Bureau of Reclamation estimates 

that this project could cost as much as $714 million or more. While this is unquestionably a huge amount of money, the anticipated cost of the project and the other 

components of the Navajo Nation’s water rights settlement must be put into perspective. 

As stated earlier, the Navajo Reservation is the largest Indian Reservation with 

the largest population of on-reservation members of any Indian tribe in the United 

States. Providing potable water for such a large reservation is indeed a costly venture, but studies conducted by the Bureau of Reclamation demonstrate that this 

project fares favorably when compared with other recently authorized water pipelines on a per/acre-foot and per capita basis. This information will be provided to 

the Committee in our supplemental statement. 

We understand that OMB seeks to impose on this settlement an overly restrictive 

interpretation of the Administration’s criteria and procedures for participating in 

this settlement. In particular, OMB apparently seeks to limit the federal contribution for this water rights settlement to their assessment of the monetary liability 

of the United States if it is sued by the Navajo Nation. Such a policy is a radical 

departure from previous Administrations, and is not even consistent with the position taken by the Administration in the three settlements recently signed into law 

by President Bush—the Arizona Water Rights Settlement Act, the Snake River 

Water Rights Settlement and the Zuni Tribe Water Rights Settlement. This inconsistency was described in a recent joint letter to OMB from Chairman Bingaman 

and Senator Domenici. Once again, I thank the Senators for their dedication to this 

settlement by having pointed out to OMB these inconsistencies. 

Moreover, OMB’s interpretation flies in the face of the Administration’s past support for the Rural Water Supply Act of 2005 in which the federal government would 

assume up to 75% of the cost of rural water projects. The federal contribution for 

such projects is not limited by any calculus of liability to the project participants. 

OMB’s policy is especially appalling considering the trust responsibility and treaty 

obligations owed by the United States to the Navajo Nation. The United States Supreme Court has characterized these responsibilities as ‘‘moral obligations of the 

highest responsibility and trust.’’ Simply put, the federal government should not be 

allowed to shirk its trust responsibility or its treaty commitments with Indian nations by hiding behind a veil constructed of legalese that can be applied to the detriment of the poorest of the poor in America. 

Of particular concern to the Navajo Nation is that OMB is now objecting to the 

construction of infrastructure projects as a mechanism for settling Indian water 

rights, even though the Administration apparently supports the concept of encouraging Indian water rights settlements. In the desert Southwest, where the available 

water resources are largely exhausted, the only way for settlements to work is by 

infusing the limited natural resource pool with the financial resources to allow the 

existing water supplies be used more advantageously. As a general premise, these 

settlements do not reallocate water from existing non-Indian water users for the 

benefit of an Indian tribe. In the San Juan River basin, there is very little unused 

water for the purpose of settling the Navajo claims. Under the terms of the Settlement Agreement, the Navajo Nation is awarded only the water it has historically 

used, the water set aside for the Nation’s use at the Navajo Indian Irrigation 

Project, and the water for the Navajo-Gallup Water Supply Project. The Settlement 

Agreement is premised on the Navajo Nation receiving a substantial amount of ‘‘wet 

water’’ development to forgo claims for additional water. In short, without the federal government contributing the monetary resources to make this settlement work, 

the settlement would not be possible. 

Although we do not believe OMB should apply the criteria and procedures for participating in settlements in such a restrictive way, we are confident that if OMB 

considers all of the ramifications of letting this settlement fail, the ultimate costs 

to the federal government could be staggering. Consider first, the claims of the Navajo Nation. The Navajo Nation’s water rights claims are based on legal precedent 

established by the United States Supreme Court. The Navajo Nation’s water rights 

53 

claims could exceed the amount of water apportioned to New Mexico by the Upper 

Colorado River Basin Compact, which was ratified by Congress in 1949. These 

claims have been described by various legal scholars as ‘‘hypothetical shocks to the 

Colorado River system.’’ If this is true, there are only two outcomes, neither of 

which are favorable to the United States. If the courts ultimately rule that the Navajo claims are limited by the compact because of the ratification by the United 

States, the Navajo Nation has a substantial claim against the United States for the 

lost water rights. On the other hand, if the courts ultimately rule that the Navajo 

Nation is entitled to water in excess of New Mexico’s apportionment, then the entire 

system of allocation of Colorado River water would be in jeopardy exposing the 

United States to incalculable liability to a multitude of water users in the seven Colorado River states. The beauty of the Settlement Agreement is that by keeping the 

Navajo Nation’s water rights within the State of New Mexico’s compact allocation, 

the ‘‘hypothetical shocks to the Colorado River system’’ are avoided. But without the 

substantial water development infrastructure authorized by House Bill 1970, such 

a settlement is not possible. 

If the settlement were to fail, and the Navajo Nation were forced to pursue the 

litigation of its claims, the United States would still be exposed to horrific liabilities 

even if the Navajo Nation were to obtain only modest water rights. The federal government historically promoted the utilization of waters from the San Juan River by 

non-Navajos through such projects as the San Juan-Chama diversion, the Hammond 

Irrigation Project, the Jicarilla Apache Water Rights Settlement, and the AnimasLa Plata Project. However, because the Navajo Nation is the senior water user in 

the basin, an award of even a modest amount of water to the Navajo Nation would 

disrupt the water supplies for each of these federal interests and leave the United 

States exposed to considerable liability. As I mentioned earlier, the San JuanChama Project serves a myriad of federal interests in addition to providing a water 

supply to the cities of Albuquerque and Santa Fe. While OMB may frame the issue 

in terms of whether we can afford this settlement, we believe the issue is whether 

we can afford not to have the settlement. Under any measure, the Congress simply 

cannot afford to let this settlement fail. 

Currently, forty percent (40%) of the families on the Navajo Reservation are 

forced to transport water from regional water pumping stations to their homes to 

ensure that their families have potable water. In the wake of Hurricane Katrina, 

Congress rightly recognized the emergency that existed when so many people were 

deprived of potable water and infrastructure. Congress moved to fix this emergency 

through the authorization of billions of dollars to restore the water infrastructure 

in New Orleans and various coastal communities. The tragic circumstance experienced by the residents of New Orleans deserved swift and decisive action on the 

part of the federal government. Unfortunately, on the Navajo Nation, the lack of potable water and infrastructure is a condition that has existed for a long time. It appears that OMB is again applying a double standard when it comes to funding 

water infrastructure to remedy acute water supply problems. OMB did not ask Congress to consider the limits of its liability to victims of Katrina or to consider whether a federal trust responsibility required such action in order to avoid spending the 

money necessary to fix the problem. In the case of Katrina, Congress did the right 

thing. We ask Congress to do the right thing again by enacting House Bill 1970. 

Arizona Concerns 

Finally, we know that the State of Arizona has concerns about the language in 

H.R. 1970 that deals with delivery of water to Window Rock, Arizona. The Settlement Agreement and the provisions of H.R. 1970 preserve all rights for the State 

of Arizona to negotiate all of the terms and conditions for water delivery to Window 

Rock as part of a separate agreement with the Navajo Nation. We do not believe, 

as Arizona does, that a ‘‘comprehensive’’ settlement of all of the Navajo Nation’s 

water rights claims is necessary to protect Arizona’s interests. In the first instance, 

a ‘‘comprehensive’’ settlement should include all of the Navajo Nation’s interests in 

Utah as well as the Upper and Lower Colorado River Basins in Arizona. The Navajo 

Nation has been actively attempting to quantify its Lower Basin claims through negotiations with Arizona water interests, but no negotiations concerning Upper Basin 

claims have been attempted. We have advised the Arizona water interests that we 

are willing to pursue a negotiated settlement of the Lower Basin claims, but we are 

not willing to jeopardize the authorization of our settlement with the State of New 

Mexico to accommodate the Arizona interests. Moreover, we have serious doubts 

whether a settlement of the Arizona claims can be achieved. It appears that after 

passage of the Arizona Water Settlements Act, there is very little Colorado River 

water remaining for purposes of a settlement with the Navajo Nation. 

54 

Frankly we believe that Arizona is simply attempting to leverage a settlement 

with the Navajo Nation that falls short of meeting the Navajo Nation’s needs, by 

demanding that the New Mexico settlement include a partial settlement with Arizona. Nevertheless, we are committed to continued dialogue with the Arizona interests to determine if a settlement is possible and to resolve any remaining issues 

they may have concerning the settlement with the State of New Mexico. 

Conclusion 

For more than one hundred and thirty nine years, the Navajo Nation and the 

Navajo People have taken their treaty obligations seriously. In times of crisis, brave 

Navajo men and women have rushed to the country’s aide, and fought and died not 

only for the preservation of the American ideal, but also to preserve the Navajo culture and to secure a Navajo homeland. A homeland for the Navajo People is not 

merely a piece of land between our four sacred mountains but a place where our 

culture, our language, our people can grow and live. Without water, viable economic 

and social communities wither and die. I am asking you today to honor the Treaty 

of 1868 and help bring water to the Navajo Nation. 

Response to questions submitted for the record by 

Joe Shirley, Jr., on H.R. 1970 

(SHIRLEY) The Administration has referred to the C&P as the means to determine the federal role and contribution to the settlement. How do you see 

these criteria and procedures applying to this settlement? 

The C&P require the federal government to look at numerous factors including, 

but not limited to, the liability of the United States. The Administration has never 

provided the Navajo Nation with its analysis of the C&P or how much the Administration is willing to support as a federal contribution to the settlement. We understand that the Administration may be interpreting the C&P in a manner that focuses solely on the liability of the United States while ignoring other aspects of the 

C&P. If this is true, such an interpretation by the Administration is overly restrictive and inconsistent with the positions taken by this administration with respect 

to other Indian water rights settlements signed into law by President Bush. 

Even if the sole criteria for evaluating the United States’ contribution to an 

Indian water settlement were the theoretical liability of the United States, I believe 

that the ramifications of letting the settlement fail are so widespread and pervasive, 

that the real question for the United States is not whether it can afford the settlement, but whether it can afford not to have the settlement. The Navajo Nation is 

in the process of developing a detailed analysis outlining how the federal government would be subject to significant liabilities in the event this settlement fails. 

This analysis will be provided to the Administration and can be made available to 

the Subcommittee. 

We believe that the United States has substantial exposure for liabilities to the 

Navajo Nation for failing to protect our water rights, for failing to enjoin others from 

using water to the detriment of the Navajo Nation, and for encouraging non-Indian 

water development within the San Juan River basin. In addition to liability to the 

Navajo Nation, the United States faces potential liability not just to the Navajo Nation but to many other parties within and outside the San Juan River basin. Under 

almost any litigation outcome, the United States would be exposed to significant liability. 

In the event that the settlement fails, and the Navajo Nation were forced to litigate its water rights claims, the Navajo Nation would claim all of the water necessary to ensure a permanent homeland for the Navajo people. Such claims would 

include not only past and present water uses, but additional water for mining and 

energy development, domestic and municipal uses, commercial and industrial development, and additional irrigation. Experts working for the Navajo Nation and the 

United States have identified a number of water claim scenarios that range from 

modest to substantial claims. We believe that any litigation outcome would award 

the Navajo Nation more water than they would receive by way of the settlement. 

The water awarded to the Navajo Nation in this settlement is surely less than water 

that the Nation could obtain through litigation. (The water in the settlement is essentially: (1) water for existing Navajo irrigation projects at Hogback and Fruitland; 

(2) water for the Navajo Indian Irrigation Project promised by the 1962 Act of Congress; and (3) about 22,000 acre-feet of ‘‘new water’’ for the Navajo-Gallup Water 

Supply Project.) Therefore, any litigation displaces existing water users and potentially creates federal liability with respect to those users. 

55 

With the settlement the State of New Mexico will be extremely close to full water 

development under its compact apportionment. Therefore, any water the Navajo Nation would obtain over and above the water specified in the settlement threatens 

existing water users and jeopardizes the ability of New Mexico to stay within its 

compact apportionment. It does not take a significant claim by the Navajo Nation 

to achieve this result. For example, the settlement agreement limits Navajo acreage 

at the Hogback and Fruitland irrigation projects to 12,165 acres, but the Congressional record on Public Law 87-483 makes reference to a possible 26,000 acres of 

irrigable land at just these two sites. See: Senate Report No. 2198. The water for 

this additional acreage would have to come either from existing water users or from 

water in excess of New Mexico’s compact apportionment. In addition, experts for the 

Navajo Nation and the United States have identified additional irrigable acreage 

upon which substantial claims could be based. Even a modest award of additional 

acreage would cause disruption of existing water uses. 

Recent decisions in various water adjudications confirm that Indian tribes are entitled to all the water necessary to make their reservations livable as permanent 

homelands. Such water uses include water for municipal, commercial and industrial 

purposes. The Navajo Reservation has a substantial population and continued population growth can be expected if the Navajo Nation had sufficient water resources. 

The municipal water in the settlement agreement is based on a projected forty (40) 

year projection. If the Navajo Nation were to litigate its claims, it would seek a supply for a much longer period of time. In addition, the Navajo Nation possesses an 

abundance of natural resources including coal, oil and gas, and uranium. The Navajo Nation claims the waters necessary to develop these resources, including water 

for energy generation. 

Even a modest award of water to the Navajo Nation would prove disruptive to 

existing water users, including upstream irrigation uses, water diversions for two 

coal fired generating stations, and the water for the municipalities in the basin. In 

addition to impacts on these run-of-the river diverters, in order to meet additional 

downstream Navajo uses, water that would have otherwise been stored at Navajo 

Reservoir and in the Animas-La Plata Project would be bypassed creating potential 

shortages to the various federal interests that rely on this water including the 

Animas-La Plata Project, the Hammond Conservancy District, the Jicarilla Apache 

Nation, and the San Juan-Chama Project. 

With respect to the San Juan-Chama Project, the project provides a portion of the 

water supply for the cities of Albuquerque and Santa Fe, and project water is proposed as the supply necessary to settle the water rights claims of Taos Pueblo and 

the four Pueblos in the Aamodt litigation. The Navajo Nation’s water rights claims 

threaten the water supply for the San Juan-Chama Project which diverts approximately 110,000 acre-feet of water per year from the San Juan basin into the Rio 

Grande Basin. San Juan-Chama Project water currently leases for $100 per acrefoot per year. Perpetual water rights in the Rio Grande Basin have been selling for 

$10,000 to $20,000 per acre-foot. Thus, the value of 110,000 acre-feet as a permanent supply of water in the Rio Grande Basin is $1.1 to $2.2 billion. By any measure, the United States cannot afford to let the settlement fail, even if the Navajo 

Nation were only to receive a modest amount of additional water. 

The scenarios for even greater exposure could accrue if the Navajo Nation were 

successful in bringing a more substantial claim in the adjudication. Numerous law 

review articles have been brought concerning the potential Navajo claims. These articles suggest that were the Navajo Nation to prevail on its claims, the implications 

on the entire Colorado River water system could be devastating. For example, some 

commentators refer to the unquantified rights of the Navajo Nation as posing a ‘‘hypothetical shock’’ to the Colorado River. Allen V. Kneese and Gilbert Bonem, Hypothetical Shocks to Water Allocation Institutions in the Colorado Basin, New Courses 

for the Colorado River: Major Issues for the Next Century at 97 (Weatherford & 

Brown, eds. 1986). See also William Douglas Back & Jeffrey S. Taylor, Navajo 

Water Rights: Pulling the Plug on the Colorado River?, 20 Natural Resources Journal 71, 74 (1980) (‘‘If Navajo Winters rights ever are adjudicated, the potential 

award is staggering.’’) Therefore, the proposed settlement not only benefits the Navajo Nation and the State of New Mexico, but the entire Colorado River system. If 

the settlement fails, the potential liability of the United States for disruption of 

water uses within the Colorado River system is too massive to calculate. 

Aside from the potential liability of the United States in the event that the settlement were to fail, the proposed settlement is consistent with other provisions in the 

C&P that the Administration has ignored. For example: 

First, the C&P require that the tribe receives equivalent benefits for rights which 

they, and the United States as trustee, may release as part of a settlement. There 

is very little unappropriated water within New Mexico’s compact apportionment. In 

56 

order for a settlement between the State of New Mexico and the Navajo Nation to 

succeed, it is necessary that the Navajo Nation relinquish substantial claims for future water uses based on well-established federal law set forth by the United States 

Supreme Court in its Winters v. United States and Arizona v. California decisions. 

We believe the value of these potential water rights claims may actually exceed the 

cost of the settlement. 

Second, the C&P require that the Indians obtain the ability as part of each settlement to realize value from the confirmed water rights resulting from the settlement. 

A confirmed ‘‘paper’’ water right has limited value for an Indian Nation where so 

many of its citizens lack the basic infrastructure to have running water in their 

homes. The centerpiece of the proposed settlement is the authorization and construction of the Navajo-Gallup Water Supply Project which would allow the Navajo 

People to realize true value from their confirmed water rights. 

Third, the C&P require that settlements be structured to promote economic efficiency on reservations and tribal self-sufficiency. A report entitled Water Resource 

Development Strategy for the Navajo Nation, July 17, 2000 concludes that ‘‘the lack 

of a reliable and affordable potable water supply stifles economic growth throughout 

the reservation’’ and that ‘‘[t]he lack of infrastructure, the lack of economic development and the sustained poverty are closely connected.’’ Without developed water infrastructure economic development infrastructure is impossible. The Project will 

provide a backbone of water infrastructure for the Eastern portion of the Navajo 

Reservation. Economists from the University of New Mexico evaluated the socio-economic benefits from the proposed Navajo-Gallup Water Supply Project and concluded that the project would provide an ‘‘economic stimulus to the region’’ and in 

terms of the human need, the report states ‘‘[i]n terms of where money can be spent 

to improve people’s lives, you’d be hard-pressed to find another place in the country 

with greater need.’’ See: Quantum 2007 at 15, http://research.unm.edu/quantum/ 

quantum2007.pdf, attached here as Attachment 1. 

Fourth, the settlement is consistent with the principles in the C&P that disfavor 

United State’s ‘‘participation in economically unjustified irrigation investment.’’ The 

C&P affirmatively endorse ‘‘investments for delivery of water for households, gardens, or domestic livestock’’ and go on to say that such investments in such water 

deliveries may be exempted from the strict application of the criterion. See: 55 Federal Register at 9224 (March 12, 1990). 

Finally, we note that the United States has spent considerable resources building 

rural water projects in the Western United States similar to the Navajo-Gallup 

Water Supply Project. The proposed project in our settlement compares favorably 

to these other water projects. The graph included here as Attachment 2 shows that 

the cost of the Navajo-Gallup Water Supply Project has a more favorable cost per 

person served than many other rural water projects, most of which have been authorized and funded by the United States. Similarly, the graph included here as Attachment 3 provides the same comparison with other projects on a cost per acrefeet of capacity basis. Again, the Navajo-Gallup Water Supply project compares favorably. If the United States can fund and build rural water supply projects 

throughout the West without requiring an Indian water settlement, surely a project 

that is included as part of an Indian water settlement should pass muster with the 

United States. 

Under any measure, this settlement is justified by a fair reading of the entire 

C&P. 

(SHIRLEY) For the record, could you please briefly state the Navajo goals 

for the settlement? 

As we told the federal assessment team and the federal negotiation team, the 

Navajo Nation seeks a water rights settlement that provides: 

• CERTAINTY. Certainty as to what our water rights are, including the water 

rights for the Navajo Indian Irrigation Project which were not fully described 

in the 1962 Act. To fully develop a permanent homeland for the Navajo People 

requires knowing the full extent of our water resources. 

• WET WATER. A ‘‘paper’’ water right does not benefit people who must haul 

their drinking water. The Navajo Nation is forgoing a large paper water right 

in exchange for a smaller paper water right, conditioned on the wet water development outlined in the settlement legislation, including the Navajo-Gallup 

Water Supply Project. 

• FAIRNESS. The United States pledged to provide a permanent homeland on 

the Navajo Reservation in the Treaty of 1868. The federal government has a 

trust obligation to provide the Navajo People with the basic necessities of life, 

including potable water. By this settlement, the Navajo Nation is giving up valuable water rights in exchange for a water supply project that the United 

57 

States should have built for the Navajo People a long time ago. We expect to 

be treated fairly by our trustee. • PEACE. We want a settlement that will reduce the possibilities of future conflicts with our neighbors. Our settlement is structured to create partnerships 

between the Navajo Nation and its neighbors—the City of Gallup, the Jicarilla 

Apache Nation, and the City of Farmington, which has passed a resolution in 

support of the settlement. 

(SHIRLEY) How has the Navajo Nation dealt with Arizona’s objections to 

moving H.R. 1970 until they negotiate and finalize their Indian water 

rights claims? 

The Navajo Nation is committed to good faith water rights negotiations with the 

State of Arizona. In the late 1990’s we engaged in serious settlement discussions 

with the Arizona water users concerning the Navajo Nation’s water rights in the 

Little Colorado River basin. Those discussions broke down, but were revived only 

after the Navajo Nation filed its lawsuit in Navajo Nation v. United States concerning Navajo claims to the mainstream of the Colorado River in the Lower Colorado River Basin in Arizona. 

Although we are negotiating in good faith, we are not certain whether a negotiated settlement Arizona is even possible, let alone imminent. We have a settlement with the State of New Mexico because it is based on identifying and satisfying 

the needs of the Navajo people in New Mexico. We are disappointed that the Arizona testimony talks about the need to resolve litigation with the Navajo Nation, 

but no acknowledgment of the real needs of the Navajo Nation to obtain sufficient 

water rights to create a permanent homeland. And, continue to be frustrated in our 

settlement efforts with the Arizona parties because there is no real discussion of the 

needs of the Navajo Nation. Instead all discussions with Arizona focus only on the 

limited resources the Arizona parties are willing to offer. Frankly, we are unsure 

of whether a settlement is possible with Arizona given that the state parties insist 

that a Navajo settlement fits within the parameters of the Arizona Water Settlements Act which contains only a limited amount of water and money. 

If a settlement with Arizona can be achieved without compromising or delaying 

the New Mexico settlement, then we would be happy to have a more comprehensive 

settlement, but the New Mexico settlement is crafted in a manner that does not require resolution of the Navajo water rights issues with the State of Arizona, and 

Arizona’s ability to reach a settlement with the Navajo Nation will not be impaired 

if a New Mexico settlement moves forward separately, Frankly we believe that Arizona is simply attempting to leverage a settlement with the Navajo Nation that fails 

short of meeting the Navajo Nation’s needs, by demanding that the New Mexico settlement include a partial settlement with Arizona. 

Requiring a settlement with Arizona gives too many parties without an interest 

in New Mexico, including the Hopi Tribe, and various non-New Mexico interests, 

veto power over our New Mexico settlement. In short, it is our view that linking 

the New Mexico settlement to the Arizona negotiations will only serve to slow the 

Arizona negotiations even further. 

(SHIRLEY) If the development of water resources improves the Navajo 

Nation’s economy, will they repay a portion of the costs of the project? 

As noted in my answer to the first question, economists from the University of 

New Mexico believe that the project would provide an ‘‘economic stimulus to the region.’’ Notwithstanding the potential for improvement of the Navajo Nation’s economy, the Navajo Nation has given up valuable water rights in exchange for the benefits outlined in the settlement. Were the Navajo Nation to repay a portion of the 

costs of the project to the United States, the Navajo Nation would be forfeiting the 

benefit of the bargain it made. Thus, the Navajo Nation has already contributed to 

the costs of the project through the relinquishment of greater claims to water from 

the San Juan River. 

Moreover, the Navajo Nation will contribute additional value to the costs of the 

project. The Navajo Nation is already providing invaluable technical assistance to 

the Steering Committee for the project and it is anticipated that the Navajo Nation 

will waive rights-of-way consideration to almost 270 miles of pipeline. 

(SHIRLEY) Mr. Shirley, will the project water be used for other industrial 

purposes? 

The design criteria used in the Draft EIS for the Navajo-Gallup Water Supply 

specifies capacity of 29,062 acre-feet per year for the Navajo Nation including, 6410 

acre-feet in Window Rock, Arizona. These capacities are based on a projected forty 

(40) year demand for domestic and municipal water in the project service area. Certainly this capacity will not be sufficient to meet all the long-term needs domestic 

58 

and municipal water needs in the service area. There is simply no capacity in this 

project for the water to be used for industrial purposes; however, in the early years 

following construction, it is conceivable that the pipeline could be used to convey 

water for short-term industrial purposes until the domestic and municipal demands 

fully materialize. While the settlement agreement with the Navajo Nation allows 

project water to be used for a variety of purposes, it is highly unlikely that any industry would commit to using project water on a short-term temporary basis. 

(To WHOEVER) The Jicarilla Tribe is currently receiving funds for the 

Jicarilla Apache Reservation Rural Water System rural water project. How 

do the funds from this legislation relate to the current project funds? 

My understanding is that the funding for the Jicarilla Apache Reservation Rural 

Water System is intended to build a water distribution system for the community 

of Dulce, the tribal headquarters, and surrounding areas. The Northwestern New 

Mexico Rural Water Supply Project (Navajo-Gallup Water Supply Project) will deliver water to Counselor, New Mexico, near the Jicarilla Apache Reservation for use 

in the southern portion of the reservation. 

(To WHOEVER) Who is responsible for the operation and maintenance 

costs? Who will own the infrastructure once it is completed? 

Section 304 of H.R. 1970 provides that the three project beneficiaries, the Navajo 

Nation, the Jicarilla Apache Nation and the City of Gallup, will pay their respective 

allocable costs for operation, maintenance and replacement of the project. A limited 

waiver for up to ten years would be authorized for the Navajo Nation pursuant to 

subsection 304(f), if the Secretary of the Interior determines that the cost of OM&R 

allocable to the Navajo Nation exceeds its ability to pay. Subsection 302(f) authorizes the Secretary, upon completion of construction and execution of an operations 

agreement, to convey those portions of the project located within the Gallup city limits to the city and the rest of the project facilities to the Navajo Nation. No portion 

of the project will be located on Jicarilla lands. Paragraph 304(b)(5) requires financial assurances satisfactory to the Secretary if title is transferred to the city prior 

to repayment. 

Mrs. NAPOLITANO. Thank you, sir. I appreciate you being here. 

Mr. Jim Dunlap, Chairman, Interstate Stream Commission of the 

State of New Mexico, Santa Fe, New Mexico. 

STATEMENT OF JIM DUNLAP, CHAIRMAN, INTERSTATE 

STREAM COMMISSION OF THE STATE OF NEW MEXICO, 

SANTA FE, NEW MEXICO 

Mr. DUNLAP. Thank you, Madame Chairwoman. I am Jim 

Dunlap, Chairman of the New Mexico Interstate Streams Commission. I appreciate the opportunity to appear before you today to 

provide comments on behalf of the State of New Mexico in support 

of the Northwest New Mexico Rural Water Projects Act. I want to 

say that I appreciate Representative Udall’s efforts in proposing 

House Bill 1970, which will authorize construction of a very important rural drinking water system for northwest New Mexico and 

the Navajo Nation. 

This project is vital in solving the acute water supply conditions 

facing much of northwest New Mexico including a large portion of 

the Navajo Nation. The project will provide the backbone of a regional water supply that will enable Navajo families to receive safe 

drinking water, a basic right that virtually all other U.S. citizens 

take for granted. 

By 2040 this project is expected to serve approximately a quarter 

of a million people including the residents of Gallup, New Mexico, 

that currently rely on unsustainable groundwater supply. In 1868, 

the Federal government formed the reservation and placed the 

Navajo people on it with the promise of a water supply. Madame 

59 

Chairwoman, it is a disgrace that the citizens of this Nation do not 

have access to safe drinking water and still have to haul their 

water. 

The Federal administration needs to acknowledge the human 

needs at issue in this settlement and the fact that the resolution 

of the Navajo Nation’s claims is not going to get any cheaper by 

delaying an outcome. This is not a Third World country. We are not 

sending foreign aid. These are original occupants of this land. 

As representatives of all western states know, resolution of tribal 

water rights can be very difficult and litigation of those claims can 

be very expensive. New Mexico is proud to have reached a settlement with the Navajo Nation that will resolve the Nation’s water 

rights in the San Juan Basin while protecting the existing water 

uses within the basin. 

As an agricultural water user from the San Juan Basin, I recognize the potential risk to existing water uses within the settlement, 

and I appreciate the protections negotiated to preserve this agricultural lifestyle. The settlement also protects the San Juan-Chama 

project that benefits some of New Mexico’s largest cities. Title 2 of 

this act provides a funding mechanism that will tap into the existing surplus in the Reclamation fund and is supported by the 17 

states represented by the Western States Water Council. New Mexico has already funded over $25 million toward the set- tlement related projects and our legislature has appropriated $10 

million toward an Indian water rights settlement fund. While I 

cannot speak for the legislature of New Mexico, they have already 

shown support for the solution to a major problem. Both the state 

and Federal governments will have to work together to make this 

important project work. 

All western states appreciate the need to be able to develop the 

water they are entitled to. From an interstate water perspective, 

an important benefit of the water is that the water necessary for 

the settlement will fit within the New Mexico’s upper Colorado 

River compact apportionment without displacing any existing 

water uses. Stability on the Colorado River is important to New 

Mexico, and we encourage the other Colorado River basin states to 

continue their cooperative efforts to support each other’s right to 

fully develop our compact apportionment. 

Madame Chairwoman and Committee members, the State of 

New Mexico asks your support for H.R. 1970. Thank you. 

[The prepared statement of Mr. Dunlap follows:] 

Statement of Jim Dunlap, Chairman of the 

New Mexico Interstate Stream Commission,, on H.R. 1970 

Madame Chairwoman and members of the committee, I am Jim Dunlap. I am the 

chairman of the New Mexico Interstate Stream Commission, and I am a resident 

of the San Juan Basin in New Mexico. I appreciate very much the opportunity to 

appear before you today and provide comments on behalf of the State of New Mexico 

in support of the Northwestern New Mexico Rural Water Projects Act, H.R. 1970. 

This legislation will authorize construction of an important rural water system for 

northwest New Mexico, including the Navajo Nation, the Jicarilla Apache Nation 

and the City of Gallup. 

It will also resolve long-standing water issues between the Navajo Nation and the 

State of New Mexico in the San Juan River Basin of New Mexico by authorizing 

a comprehensive settlement agreement that will protect existing water rights within 

the state. The legislation clarifies provisions of existing law and provides guidance 

regarding regulations that will be developed to implement the settlement provisions. 

60 

The State of New Mexico and the Navajo Nation reached this settlement after 

decades of disagreement and many years of intensive settlement talks. It is no small 

matter that we appear before you today, together, urging you to pass this legislation. We believe this legislation has been carefully crafted to address water supply 

needs within New Mexico while protecting the long-standing Law of the Colorado 

River. 

I would like to discuss these issues in further detail. 

The Project 

The legislation would authorize the Northwestern New Mexico Rural Water Supply Project. This project is vital to solving the acute water supply conditions facing 

much of northwestern New Mexico, including a large portion of the Navajo Nation. 

The project is described in detail in the final draft Environmental Impact Statement 

recently released by the Department of Interior that builds off a federal planning 

process that has been underway for over 30 years. This Colorado River Storage 

Project Act project utilizes an existing reservoir and will provide a safe, reliable 

drinking water supply to New Mexico residents that currently haul water or rely 

on unsustainable groundwater. 

Today more than half of rural Navajos in New Mexico must haul water for many 

miles to receive a basic domestic water supply. The reality of water hauling faced 

by those Navajo families is shocking considering the modern conveniences that most 

of us take for granted. By providing the backbone for a regional water supply system, the project will enable the Navajos to receive a clean, reliable supply of water. 

The project will enable the City of Gallup to acquire a renewable surface water 

supply. Currently, Gallup faces quickly declining groundwater supplies with the 

prospect of severe shortages within 20 years. The project will also deliver water to 

the Jicarilla Apache Nation for use in the water scarce southern portion of the 

Apache reservation. 

By 2040 the project is expected to serve approximately 250,000 people, including 

the residents of Gallup. The project would be the second biggest water utility in the 

state, smaller only than the Albuquerque Bernalillo County water utility. 

Because the project will serve a very large area and contain hundreds of miles 

of pipeline, the cost of the project is high. But, the project costs can be appropriated 

over several years, and the Reclamation Water Settlements Fund, to be created by 

Title II of H.R. 1970, provides a reasonable means of funding project costs if sufficient appropriations have not been made by 2018. 

In recognition that the state will incur costs associated with its Indian water 

rights settlement projects, including the Navajo Settlement, the State of New Mexico has made an initial contribution of $10 million to the New Mexico Indian Water 

Rights Settlements Fund (NMSA 72-1-12). In addition, over the last 4 years, the 

state has invested approximately $9.7 million in a Gallup regional distribution system and, this year, the New Mexico legislature appropriated $15.3 million to be 

used for construction of the ‘‘Cutter Lateral’’ pipeline on the eastern side of the 

project. New Mexico recognizes the importance of funding this project and expects 

the federal administration to contribute funding for this project commensurate with 

the federal government’s trust and statutory responsibilities. New Mexico expects to 

be treated fairly and consistently vis-a-vis other settlements around the country. 

Benefits of the Navajo Settlement 

In addition to authorizing a project that would provide a secure source of drinking 

water for Navajo and Apache communities and for the City of Gallup, the legislation 

would approve a comprehensive settlement of the Navajo Nation’s water rights 

claims in the San Juan Basin in New Mexico. Navajo claims to the San Juan River 

have long-threatened the security of water rights of all other water users within the 

basin. After years of difficult negotiations, the State of New Mexico and the Navajo 

Nation entered into a settlement agreement in 2005. 

The State of New Mexico strongly believes that the settlement represents a fair 

and equitable resolution, and we respectfully ask this Committee to support it. The 

San Juan River, like most rivers in the southwest, does not produce enough water 

to meet all claims for current and future uses. Under the settlement, the Navajo 

Nation agrees to substantially reduce its claims in exchange for the wet water supplied by the proposed project. 

Before signing the settlement agreement, the State of New Mexico carefully considered the needs of non-Navajo water users in the San Juan Basin, and over the 

course of several years, the state met many times with water user groups, took formal public comments, analyzed alternatives and worked tirelessly to negotiate the 

agreement in order to resolve the concerns voiced. Some of the most difficult negotiations centered on numerous changes to the settlement agreement that provide adVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00064 Fmt 6633 Sfmt 6621 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
61 

ditional protections for third parties. The State of New Mexico has reviewed the settlement agreement and proposed legislation from a perspective of protecting all 

water users within the state, including San Juan-Chama Project water users, and 

the state believes the settlement benefits and protects those water users. 

I firmly believe that we have come as close as possible to a resolution that provides maximum benefits and protections for all water users, given limitations of 

water supply and potential uncertainties of its allocation if the Navajo claims were 

litigated. 

To underscore this point, I want to outline some of the most important provisions 

built into the settlement to protect non-Navajo water users. 

Under the settlement, the Navajo Nation accepts compromises regarding both the 

quantity of its water rights and administration of its priority dates, with the result 

that Navajo claims fit within New Mexico’s apportionment of the Upper Colorado 

Stream System and will not displace other existing uses and projects. 

Under the settlement, the quantity of Navajo water rights would be made up of 

essentially three components. First, the settlement recognizes the existing uses of 

the Navajo Nation, including its old irrigation projects Hogback and Fruitland diverting directly from the San Juan River for authorized irrigation of approximately 

12,000 acres. Second, the settlement recognizes the Navajos’ largest right, its right 

to irrigate over 110,000 acres that comprise the Navajo Indian Irrigation Project 

(NIIP), authorized by Congress in 1962 by Public Law 87-483. Finally, the only 

‘‘new’’ water the Navajos will receive is almost 21,000 acre-feet a year of water to 

supply domestic and commercial uses for the Navajo portion of the Northwestern 

New Mexico Rural Water Supply Project. 

Regarding the large Navajo Indian Irrigation Project right, in 1962, Congress authorized an annual diversion of 508,000 acre-feet; however, the Navajos through 

conservation are agreeing to limit diversions to 353,000 acre-feet and could only exceed that amount by obtaining a State Engineer permit assuring that no other 

water users would be impaired by an increase. As a result, even with new diversions 

required by the proposed rural water supply project, the settlement’s net effect is 

a decrease in annual diversion of over 130,000 acre-feet from the amount already 

authorized by federal law and state permits. In addition, depletion limits are included which provide additional benefits to other water users. 

With respect to priority dates, under the federal reserved water rights doctrine, 

the Navajos could claim an 1868 priority, the date of their reservation. Under the 

prior appropriation doctrine, the Navajo Nation, as most senior water right holder, 

could call for all its water before anyone else on the San Juan River. Even with reduced quantities as provided under the settlement, an 1868 priority would threaten 

frequent curtailment of other water users. Consequently, the Navajos are agreeing 

that NIIP and the proposed rural water supply project will be supplied under the 

Navajo Reservoir’s 1955 priority, instead of a reserved priority date of 1868. This 

concession means that 10 percent of Navajo rights will have an 1868 priority and 

90 percent will be administered with a 1955 or later priority. 

I have described two of the most important protections incorporated into the settlement, regarding quantity and priority, but there are several other protections 

conferred by the settlement I want to touch on. 

The settlement has valuable shortage sharing provisions that protect other federal 

projects. As you know, the federal government has invested a great deal of resources 

in the Animas-La Plata Project (ALP) and the San Juan-Chama Project. These 

projects are vital to the State of New Mexico, but they have relatively junior priority 

dates of 1956 and 1955, respectively. In addition to the general protections I have 

already described, the Navajo Nation is agreeing to additional, specific protections 

for these two important federal projects. 

ALP’s 1956 priority in New Mexico makes it vulnerable to priority calls within 

the San Juan Basin. Most of the 13,520 acre-feet per year of ALP water allocated 

for use in New Mexico will supply the future needs of the three municipalities of 

Farmington, Bloomfield and Aztec. In the event that curtailment of New Mexico’s 

water uses is required by the Upper Colorado River Basin Compact, the Navajos 

agree to provide protection to New Mexico contractors up to their project contract 

amount. Under this protection, the Navajos agree to forgo their uses in order to 

make water available to ALP at the same percentage supply available to the rural 

water supply project authorized by H.R. 1970. 

Section 102 of H.R. 1970 would amend Public Law 87-483, which authorized the 

San Juan-Chama Project, to clarify that the normal annual diversion requirement 

for that project is 135,000 acre-feet for purposes of allocating annual water supply 

shortages between Navajo Reservoir contractors and the San Juan-Chama Project. 

That provision minimizes the potential for shortages to the San Juan-Chama 

Project, which on average diverts 105,000 acre-feet per year, or less, in dry years 

62 

when less water is available for project diversions. This means that a large reduction in Navajo Reservoir’s physical supply would have to occur before the San JuanChama Project would begin sharing administrative shortages. 

In addition, in order to protect federal project contractors, the state analyzed the 

risks associated with allowing additional water to be contracted from Navajo Reservoir to supply the proposed regional water project. The hydrologic determination 

recently signed by the Secretary of Interior confirms that additional water is available for the new contract uses without impairing existing uses. The additional risk 

of shortage to contractors from either the San Juan Chama-Project or Navajo Reservoir supply is minimal, and the State of New Mexico believes that other settlement and legislative benefits provided outweigh any additional risks of shortage. 

Another category of protections I want to mention consists of specific protections 

for non-Navajo water users who are not supplied by federal projects. These users 

are direct flow irrigators, municipalities and power plants. Many non-Indian and 

municipal state-based rights were quantified in the 1948 Echo Ditch Decree, to 

which the United States and the Navajo Nation were not parties. Under the settlement, the Navajo Nation and the United States would agree not to challenge the 

elements of Echo Ditch Decree rights except on the basis of forfeiture, abandonment 

or illegal use occurring after entry of the Decree. This means that the U.S. and the 

Navajo Nation would not go behind this long-standing decree to challenge the water 

rights decreed at that time or challenge the validity of the decree. Similarly, in conjunction with the settlement, the Navajo Nation is agreeing to recognize water 

rights of the City of Farmington quantified by the Echo Ditch Decree. 

An important protection for direct flow diverters is the Navajos’ agreement to call 

on an alternate water supply stored in Navajo Reservoir before making a priority 

call against direct flow. Although, as I mentioned above, the settlement provides 

that 90 percent of the Navajos’ rights would be supplied under Navajo Reservoir’s 

1955 priority, the Navajos’ old direct flow irrigation projects Hogback and Fruitland 

would retain an 1868 priority. In many years the demand of those projects would 

cause junior diverters to be shut off absent the additional protection secured by the 

settlement requiring the Navajos to use their alternate water supply. Under the alternate water supply provisions, the Navajo Nation agrees the Hogback and Fruitland projects will refrain from priority calls against upstream junior appropriators 

and instead will deliver up to 12,000 acre-feet in any year of NIIP contract water 

in storage in Navajo Reservoir when the direct flow is insufficient to meet water 

demands. If this amount is exhausted in any year, priority calls may occur at that 

time in that year. Based on the hydrologic record, this provision would mean that 

instead of priority calls in one out of two years, Hogback and Fruitland would only 

be entitled to make priority calls in one out of every twenty years, on average. 

Another benefit of stored water for direct flow diverters is contained in paragraph 

401(a)(4) of H.R. 1970. When there are at least a million acre-feet in Navajo Reservoir, this provision authorizes the State of New Mexico to administer water released from storage for use by direct flow diverters at a minimum of 225 cubic-feetper-second, even when inflows to the reservoir are less than that amount. In other 

words, when the direct flow would otherwise drop below 225 cubic-feet-per-second, 

water released from the reservoir may be used to keep direct flows at that minimum 

amount, thereby increasing and making more reliable the supply available to direct 

flow diverters. 

The settlement would also make the direct flow go farther by providing funding 

for ditch improvements. Under the settlement, the state will contribute $10 million 

for ditch improvements and water conservation projects to benefit the direct flow 

ditches. Section 309(c) of H.R. 1970 authorizes over $23 million to rehabilitate the 

Hogback and Fruitland projects and Section 309(d) authorizes $11 million of matching funds to rehabilitate non-Navajo ditches. These funds will mean that approximately $45 million will be appropriated to improve the efficiency and promote conservation of water of the direct flow diversions, as part of the Navajo settlement. 

The last category of protections I want to touch on includes administrative provisions to help assure that the San Juan River Basin is managed in an orderly fashion and within the supply available. Both the legislation and settlement confirm the 

State of New Mexico’s authority to administer water. Under the settlement, the 

Navajo Nation agrees that the State Engineer has authority to serve as water master in the basin and to administer water rights in priority as necessary to comply 

with interstate compact obligations and other applicable law, thereby confirming authority in the state to comprehensively administer water usage in the basin. In addition, the State Engineer will have authority to make determinations of current 

beneficial uses for any changes in points of diversion and for any changes in purposes or places of use of Navajo water rights off of Navajo lands. The Navajo Nation 

also agrees to comply with state law regarding marketing of water rights. 

63 

The Navajo Nation further agrees not to pump groundwater so as to deplete the 

flow of the San Juan River by more than 2,000 acre-feet per year, unless the State 

Engineer approves use of Navajo surface water to offset depletions in excess of that 

amount. Any Navajo groundwater uses beyond those quantified in the settlement 

agreement also would be subject to non-impairment of existing water rights. 

Outside the Navajo Reservation on lands allotted by the United States, there are 

numerous individual Navajos who could assert federal reserved claims in the pending San Juan River Adjudication. The Navajo Nation is agreeing to use its water 

rights decreed under the settlement to supply or offset any future uses that may 

be awarded in the adjudication to individual Navajos allottees in the San Juan 

Basin. 

The proposed settlement is detailed and comprehensive. Although it is a creature 

of negotiation and compromise, I strongly believe that is represents the best result 

attainable for all New Mexicans who rely on the San Juan River. Without a settlement, the Navajo Nation would assert a right to much larger quantities, with the 

potential to displace junior non-Navajo water users. Under the settlement, those 

same water users are afforded numerous and substantial protections. 

If the claims were litigated, the Navajos would seek large quantities of water 

under the Winters Doctrine or Federal Reserved Water Rights Doctrine. The Navajos would seek water for future use to make the Navajo reservation a permanent 

homeland, including by claiming enough water to irrigate all practicably irrigable 

acreage (PIA) on their lands in New Mexico. The quantity of water could be very 

large. 

Under the settlement by contrast, as I have mentioned the only ‘‘new’’ water the 

Navajos will receive is almost 21,000 acre-feet a year of water to supply domestic 

and commercial uses for the Navajo portion of the proposed rural water supply 

project. The other major water components of the settlement consist of already existing or authorized irrigation, at the Hogback and Fruitland Projects and the Navajo 

Indian Irrigation Project. 

As we move forward, the State of New Mexico looks forward to working with other 

parties on proposed legislative language to assure the protections intended by the 

settlement are realized. 

The Colorado River Basin 

New Mexico supports this legislation because it is good for New Mexico, the Navajo Nation, and the Colorado River Basin states. 

The States’ Agreement Concerning Colorado River Management recently executed 

by California, Arizona, Nevada, Utah, Wyoming, Colorado and New Mexico provides 

extensive benefits to the lower basin states in terms of protecting and increasing 

the water available for use in those states. The primary benefit of the agreement 

to the upper basin states is a reaffirmation of each state’s right to develop its Colorado River water entitlement. The Navajo Settlement resolves the Navajo Nation’s 

water rights claims within the San Juan Basin in quantities that fit within New 

Mexico’s apportionment under the Upper Colorado River Compact. Resolution of 

tribal water rights claims is important to states, tribes, and the federal government, 

and it is particularly beneficial when the claims can be resolved within a state’s 

compact apportionment. 

The Secretary of Interior’s recent hydrologic determination was developed by the 

Bureau of Reclamation in collaboration with engineers and hydrologists from the 

Upper Division states and was concurred with by the Upper Colorado River Commission (representing Colorado, Wyoming, Utah and New Mexico) through a resolution dated June 9, 2006. The Department of Interior consulted with all of the seven 

basin states, including Arizona, California and Nevada, regarding the final hydrologic determination. This hydrologic determination confirms that water is available 

for the Navajo Settlement within New Mexico’s apportionment of water under the 

Upper Colorado River Basin Compact without displacing any existing water uses 

within New Mexico. 

H.R. 1970 authorizes the Secretary of Interior to sign the Settlement Agreement 

and design and construct a project to bring a necessary, safe and reliable water supply to many New Mexican families who currently rely on hauled water or 

unsustainable, poor quality groundwater to meet their domestic needs. The Upper 

Colorado River Commission has already expressed support for the settlement project 

and this legislation through resolutions dated June 19, 2003 and June 9, 2006. 

The settlement and the water supply project contemplates a pipeline extension to 

the Navajo Nation’s capital in Window Rock, Arizona, on the border with New Mexico. H.R. 1970 preserves Arizona’s right to negotiate its own settlement with the 

Navajo Nation and water cannot be delivered to Arizona until an agreement is 

reached within Arizona regarding the water supply allocation and additional apVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00067 Fmt 6633 Sfmt 6621 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
64 

provals are received as may be required under the law of the Colorado River. New 

Mexico has been able to accommodate some of Arizona’s concerns, but many of Arizona’s concerns go beyond the scope of our settlement, raising complicated issues 

that are objectionable to other basin states. New Mexico is willing to continue conferring with any of the Colorado River Basin states as necessary to explain the settlement agreement or discuss concerns about the settlement, but New Mexico believes that each state should be entitled to develop its compact entitlement in the 

manner that best meets the needs within that state. In New Mexico, have worked 

hard to resolve complicated Indian water rights claims through a settlement that 

will address basic human needs. We hope the other states will support us in this 

effort. 

Madame Chairwoman and Committee members, the State of New Mexico asks 

you to support H.R. 1970. The costs of the Northwestern New Mexico Rural Water 

Supply Project and of the Navajo settlement are high. But the costs of delay in not 

addressing the vital and human needs of the communities of Northwestern New 

Mexico are much higher. This legislation would settle protracted and divisive litigation, and in its place would provide a clear, safe drinking water supply for northwest New Mexico. 

Response to questions submitted for the record by 

Jim Dunlap on H.R. 1970 

(DUNLAP-NM) This legislation will enable a settlement between the New 

Mexico Navajo Nation and the Federal Government. What do you think of 

the Arizona’s concerns regarding the implications of certain provisions to 

the existing ‘‘Law of the Colorado River?’’ 

ANSWER: Arizona’s objection relating to the ‘‘Law of the River’’ relates to New 

Mexico’s use of a portion of its Upper Basin apportionment within the Lower Basin 

in New Mexico. Arizona’s concern is unfounded because Section 303(g) of H.R. 1970 

directly authorizes the use of a portion of the State of New Mexico’s Upper Basin 

apportionment within the Lower Basin in New Mexico. The authorization in 

H.R. 1970 is consistent with the authorization in Section 303(d) of the 1968 Colorado River Basin Project Act of a project’s use of a portion of the State of Arizona’s 

Upper Basin apportionment within the Lower Basin in Arizona. In addition, the 

Upper Colorado River Commission, which administers the Upper Colorado River 

Basin Compact and has authority to determine uses of water from the Upper Basin, 

by unanimous resolution, approved New Mexico’s proposed use of some of its Upper 

Basin water within the Lower Basin in New Mexico. 

H.R. 1970 preserves the State of Arizona’s right to negotiate its own settlement 

with the Navajo Nation, and most of the issues raised by Arizona go beyond the 

scope of the State of New Mexico’s settlement with the Navajo Nation. Some of the 

provisions that Arizona has requested have raised objections from other Colorado 

River Basin states. 

(DUNLAP-NM) Mr. Dunlap, the Bureau of Reclamation may categorize this 

project as a ‘‘rural water project’’ under P.L. 109-451. Would the State of 

New Mexico support that? Has the State ever considered this project to be 

a ‘‘rural water project?’’ 

ANSWER: The Bureau of Reclamation’s written comments regarding H.R. 1970 

state it is confused about whether the Northwestern New Mexico Rural Water Supply Project is intended to be a rural water project. The project proposed by 

H.R. 1970 should not be categorized as a ‘‘rural water project’’ under the Reclamation Rural Water Supply Act of 2006, P.L. 109-451. As clearly stated in H.R. 1970, 

the project will be authorized as a Colorado River Storage Project Act participating 

project. But, H.R. 1970 is specifically tailored to the requirements of the Navajo settlement. 

As Commissioner Johnson described in his testimony to the bill, Reclamation’s 

rural water program under the Rural Water Supply Act is still under development, 

and eligibility and prioritization criteria have still not been promulgated. New Mexico understands that a field hearing is scheduled later this month before the Senate 

Energy and Natural Resources Committee regarding the Bureau of Reclamation’s 

implementation of P.L. 109-451. 

(DUNLAP) Mr. Dunlap, your testimony frequently refers to the hydrologic 

report. Who verified the hydrologic report? Was this report specific to this 

project, or for the entire State of New Mexico? 

ANSWER: The Hydrologic Determination to which I refer is required by 

Section 11 of P.L. 87-483, and was finalized by the Bureau of Reclamation in April 

65 

2007 after consultation with all seven Colorado River Basin states, and signed by 

the Secretary of the Interior on May 23, 2007. A copy of the determination is attached to these responses for the record. The Upper Colorado River Commission had 

previously concurred in the findings of the determination in June of 2005. The 2007 

Hydrologic Determination confirmed the finding of the 1988 Hydrologic Determination that the annual water yield available to the Upper Basin under the Colorado 

River Compact is at least 6.0 million acre-feet, including evaporation from Colorado 

River Storage Project reservoirs, based on the critical period of record. The 2007 Hydrologic Determination also found that sufficient water is reasonably likely to be 

available within the State of New Mexico’s share of the Upper Basin yield that is 

apportioned to it by Article III(a) of the Upper Colorado River Basin Compact, and 

within the physical water supply available from Navajo Reservoir to service water 

contracts from the Navajo Reservoir supply for the Navajo Nation’s uses under both 

the Navajo Indian Irrigation Project and the proposed Northwestern New Mexico 

Rural Water Supply Project. 

(To WHOEVER) The Jicarilla Tribe is currently receiving funds for the 

Jicarilla Apache Reservation Rural Water System rural water project. How 

do the funds from this legislation relate to the current project funds? 

ANSWER: The funds from H.R. 1970 do not relate to the Jicarilla Apache Reservation Rural Water System. The Jicarilla Apache Reservation Rural Water System project will provide a water distribution system to supply water to the northern 

portion of the Jicarilla reservation in the proximity of Dulce, New Mexico. The 

Northwestern New Mexico Rural Water Supply Project will deliver water to the 

Jicarilla Apache Nation near Counselor, New Mexico, for use in the southern portion of the reservation. 

(To WHOEVER) Who is responsible for the operation and maintenance 

costs? Who will own the infrastructure once it is completed? 

ANSWER: Section 304 of H.R. 1970 provides that the three project beneficiaries, 

the Navajo Nation, the Jicarilla Apache Nation and the City of Gallup, will pay 

their respective allocable costs for operation, maintenance and replacement of the 

project. A limited waiver for up to ten years would be authorized for the Navajo Nation pursuant to subsection 304(f), if the Secretary of the Interior determines that 

the cost of OM&R allocable to the Navajo Nation exceeds its ability to pay. Subsection 302(f) authorizes the Secretary, upon completion of construction and execution of an operations agreement, to convey those portions of the project located within the Gallup city limits to the city and the rest of the project facilities to the Navajo 

Nation. No portion of the project will be located on Jicarilla lands. Paragraph 

304(b)(5) requires financial assurances satisfactory to the Secretary if title is transferred to the city prior to repayment. 

Mrs. NAPOLITANO. Thank you, sir. We will move on to Patricia 

Lundstrom, President of the Northwestern New Mexico Council of 

Governments in Gallup, New Mexico. 

STATEMENT OF PATRICIA LUNDSTROM, PRESIDENT, 

NORTHWESTERN NEW MEXICO COUNCIL OF GOVERNMENTS, 

GALLUP, NEW MEXICO 

Ms. LUNDSTROM. Good morning, Madame Chair, and Congressman Udall. I am Patty Lundstrom. I am the Executive Director of 

the Northwest New Mexico Council of Governments since 1985, 

and a fourth term member of the New Mexico House of Representatives. With me today are Gallup mayor pro tem Bill Nachero, 

Gallup city councilor Elen Londabozo and the COG deputy director 

Jeff Kiley. We would like to thank you for inviting us to participate 

in this historic hearing today. 

I come before you to speak in favor of House Bill 1970. This legislation is an essential instrument for authorizing and financing 

the proposed rural water project we have been working on for decades. We have known it as the Navajo Gallup Water Supply 

Project, and in the context of this bill it is titled the Northwestern 

66 

New Mexico Rural Water Supply Project. Since 1991, I have served 

as chair of the steering committee for this project. 

The need for the project has been known to Congress and the 

Interior Department for 50 years, and scientific studies have made 

it clear that the only hope for a sustainable water supply for eastern Navajo land and Gallup lands is a surface water supply provided by the San Juan River. After years of work through a mine 

field of legal, technical, political, environmental and financial 

issues, we are finally at the point of bringing to you our plan for 

getting this water supply conveyed to this parched region. 

Through the involvement and support of the Congress, the Bureaus of Reclamation and Indian Affairs and the Fish and Wildlife 

Service, the Federal government has been an active and constructive part of this consensus plan. The opportunity for the government to shape, modify or otherwise advance this plan has been continuous and complete. The steering committee has been a unified 

working group with participation by state and Federal agencies, 

the Navajo and Jicarilla Nations, the city of Gallup and technical 

partners in the process. 

In my 22 years as COG director, this has been the most ambitious and complex project I have seen in the region. It has invoked 

the highest levels of cooperation, professionalism and commitment 

by the individuals and agencies involved. The needs for the project 

are clear. Many Navajo reservation households have never had a 

public water system. The Navajo economy already struggling well 

below poverty stands no chance of development without a sustainable public water supply for its communities. 

The Jicarilla Apache Nation has a water rights settlement but 

needs economic development in order to tap the fullness of these 

rights. The city of Gallup’s water table is dropping 20 feet a year, 

and the city will face peak use shortages within five years and 

chronic shortages within 15 years. 

Since I work closely with the city of Gallup in both my public 

service roles, I will briefly outline Gallup’s role in the project. 

Gallup is a transportation hub for the southwest and a major commercial center for the Navajo reservation. Within a few decades 

Navajos will likely make up one-half of Gallup’s population. The 

Gallup regional water system at the back end of the Navajo Gallup 

pipeline is now under development in full collaboration with the 

Navajo Nation and the State of New Mexico. 

Under this system city infrastructure will be used to help convey 

water to neighboring Navajo communities both now and in the future when the Rural Water Supply Project is complete. The state 

has already committed over $9 million to this regional system. 

Gallup also supported the state’s commitment of over $15 million 

in funding for regional water infrastructure on the eastern side of 

the project area which will ultimately tie into the Cutter Reservoir. 

These regional system partnerships have generated broad commitments to the motto real water to real people in real time. Since 

shortages are likely in Gallup even before the project is completed, 

Gallup has proactively worked to secure its water future in both 

the short and long term and has adopted an aggressive water rate 

structure to spur conservation and to look at financing local water 

67 

infrastructure and a new water supply. It has started developing 

a wastewater reuse system using reverse osmosis. 

It is working to develop new groundwater sources previously 

used by extractive industry. It has worked on cooperative agreements with the Navajo and Jicarilla to ensure a water source for 

the city’s participation in the Rural Water Supply Project. The city 

of Gallup stands in support of this legislation. The city concurs in 

particular with the concept of a 75 percent Federal cost share for 

the city’s portion of the project cost as reflected in House Bill 1970. 

Affordability for the city is affected by a number of unique factors, most predominantly its commercial hub status. We are a 

broad rural area and the existence of pockets of high poverty both 

within and outside the city. The city will need a water supply for 

its share of the project, and the city is dependent on the projects 

two Indian tribes or alternatively the Secretary of Interior for that 

supply. The city’s purchase of its own water rights in the San Juan 

River would be high in cost, high in controversy and low in feasibility at this point. 

The city of Gallup is nevertheless committed to charting a strong 

financial course to meet the 25 percent threshold of its share of the 

project. We will be working closely with the offices of the Governor, 

the state engineer, as well as with the state legislature to design 

and implement a viable state and local financial strategy. 

Overall this legislation represents a perfect storm of opportunity 

for the Federal government to join forces with its state and local 

partners to meet the critical water needs in this region of New 

Mexico while settling the Navajo Nation water right claims. 

Mrs. NAPOLITANO. You need to wrap it up please, Madame. 

Ms. LUNDSTROM. OK. The project is essential, and on behalf of 

the steering committee, the Council of Governments and the New 

Mexico state legislature, we urge your support for House Bill 1970, 

and again thank you very much for inviting us. 

[The prepared statement of Ms. Lundstrom follows:] 

Statement of Patricia A. Lundstrom, Member, New Mexico House of 

Representatives, and Executive Director, Northwest New Mexico Council 

of Governments, Serving as Steering Committee Chair, Navajo-Gallup 

Water Supply Project, on H.R. 1970 

Mr. Chairman and Members of the Subcommittee, I am Patricia Lundstrom, 

member of the New Mexico House of Representatives in my fourth term serving 

House District 9, and Executive Director of the Northwest New Mexico Council of 

Governments since 1985. 

State House District 9 encompasses about 3,000 square miles in northwestern 

New Mexico, including the western portion of the City of Gallup and 9 rural Navajo 

communities lying within McKinley and San Juan Counties. Navajos comprise about 

two-thirds of the population of this District. 

The Northwest New Mexico COG is the regional planning agency designated by 

the State of New Mexico and the Federal government to serve the State’s three 

counties of the Four Corners region: Cibola, McKinley and San Juan Counties. This 

is about 15,000 square miles of high desert territory, including large reservation 

areas for four Indian tribes and a population of about 225,000 people residing in 

6 municipalities and 77 rural communities. About one-half of the land base and onehalf of the population are Native American. 

I want to thank you for inviting me to participate in this historic hearing today. 

I come before you to speak in favor of the proposed Settlement of Navajo Nation 

water rights in the San Juan River and the other associated titles included in 

H.R. 1970. My primary interest in this bill and in the Settlement is that this legislation is an essential instrument for authorizing and financing the proposed rural 

water infrastructure project we have been working on for decades. We have known 

68 

it as the Navajo-Gallup Water Supply Project, and in the context of this bill it is 

titled the Northwestern New Mexico Rural Water Supply Project. 

Since 1991, I have served as Chair of the Intergovernmental Steering Committee 

for the Navajo-Gallup Water Supply Project. This project is the flagship of the proposed water rights Settlement, as it plans to construct primary water pipelines to 

deliver water from the San Juan River to rural Navajo communities in northwestern 

New Mexico, to the southwestern portion of the Jicarilla Apache Nation, and to the 

City of Gallup. 

During these past 16 years, I have seen the Navajo-Gallup project revived from 

its prior stalemate condition and, with the consistent leadership and support of Senators Bingaman and Domenici, I have seen it sustained as a planning initiative to 

the present day through a minefield of legal, technical, bureaucratic, political, financial and environmental issues. 

The Steering Committee has been the primary nexus and forum in which these 

issues have been addressed and resolved by a persevering coalition of partners, including: • The Navajo Nation, with representatives from the Nation’s Natural Resources 

Division, Division of Justice, President’s Office, and Water Rights Commission; • The Jicarilla Apache Nation, with staff and policy representation from the Nation’s Water Rights Commission and from the Office of the President; • The City of Gallup, which serves as a project beneficiary (for 20% of the 

project’s eventual capacity) and as a hub distribution system for the project’s 

water supply at its southern end, to water users not only within the City limits 

but also in a number of neighboring Navajo communities; • The State of New Mexico, primarily through its State Engineer’s Office and the 

Interstate Stream Commission; the State is a party to the interstate compacts 

affecting the Colorado River and its tributaries, as well as to a negotiated settlement of the Navajo Nation’s water rights in the San Juan River, and 

(through its Legislature) the State is a major contributor to infrastructure improvements in support of the overall Navajo-Gallup Water Supply Project; • The Bureau of Reclamation, which serves as federal lead for the project out of 

its Western Colorado Area Office; and • The Bureau of Indian Affairs, which is federal administrator of the Navajo 

Indian Irrigation Project, and which has a substantial role with regard to real 

properties and rights-of-way affected by the project; • The Navajo Tribal Utility Authority, the Navajo Nation’s utility enterprise that 

operates all of the public water systems on the Navajo Reservation; • The Navajo Area Indian Health Service, a division of the Public Health Service 

in the U.S. Department of Health & Human Services, which is responsible for 

planning and constructing water facilities in service to Navajo communities; 

and 

• The Northwest New Mexico Council of Governments, a federal- and state-designated regional planning agency which chairs the Steering Committee. 

In addition to these Steering Committee groups, we have enjoyed the professionalism and cooperation of two agencies in particular that have also contributed 

greatly to the success of our planning efforts thus far: 

• The Upper Colorado River Commission has worked thoughtfully and cooperatively with the State of New Mexico and the Navajo Nation in accommodating 

the unique needs and configurations of this project. In particular, in 2003 the 

Commission resolved to support and consent to diverting water from the Upper 

to the Lower Basin of the Colorado River for the purposes of the Navajo-Gallup 

project, and it certified its support for ‘‘such Congressional action as may be 

necessary to authorize the Navajo-Gallup Water Supply Project.’’ 

• The United States Fish and Wildlife Service worked cooperatively with all parties to complete appropriate planning studies in the San Juan River that would 

identify the depletions from the river that could be made without negatively impacting the recovery of endangered species of fish in the river. 

This project is the most ambitious and complex of the many local and regional 

initiatives I have been a part of for over two decades. It has also evoked the highest 

levels of cooperation, professionalism and commitment by a group of agencies and 

individuals that I have ever seen. My Council of Governments staff and I have been 

working on this project continuously since the early 1990s, and there have been 

many other individuals from all the participating agencies who have worked with 

us on it for years at a time. For all of us, this is not just ‘‘any project’’; it’s personal. 

Getting it done makes so much sense, at so many levels, that we are all committed 

to it for the long-haul. 

Since the late 1950s, State and Federal officials have concurred with the Southwest region’s top hydrologists that the only hope for long-term sustainable water 

69 

supply for the eastern Navajo Reservation and for the City of Gallup lies in the surface water supply provided by the San Juan River. The San Juan is a tributary to 

the Colorado River, originating in the mountains of southwestern Colorado, flowing 

through a portion of northwestern New Mexico, and proceeding to join the Colorado 

River at Lake Powell in southern Utah and northern Arizona. Through allocations 

confirmed in the hydrologic determination recently approved by Interior Secretary 

Kempthorne, the San Juan River provides about 40% of New Mexico’s surface water 

supply. The Navajo-Gallup project would divert nearly 38,000 acre-feet of water 

from the river, or about 5 1/2 percent of New Mexico’s river allocation. 

The needs for the Navajo-Gallup Water Supply Project are clear and evident: 

• For the Navajo Nation, there is a significant population of Navajo people in the 

northwestern New Mexico service area who do not have, and have never had, 

a public water system. To this day, nearly 40% of Navajo families in the service 

area still haul water to meet basic household and livelihood needs. It is also 

clear that the Navajo economy, already struggling well below the poverty line, 

stands no chance of development without the provision of water as the most 

basic of all human needs. • For the Jicarilla Apache Nation, there is already in place a settlement agreement under which this neighboring tribal community has secured water rights, 

but for which significant economic and infrastructure development is needed in 

order to tap the fullness of these rights. • For the City of Gallup, the water table is dropping 200 feet every ten years, 

and the City will be facing peak-use shortages within five years and chronic 

shortages within fifteen years. 

To focus further on the needs of the City of Gallup: Gallup serves as a multimodal 

transportation portal for the Southwest and a major commercial center for the Navajo Reservation. As such, it is as much a ‘‘home’’ and integral part of Navajo life 

as most other places in the region. Within a few decades, we expect that Navajos 

will make up over 50 percent of Gallup’s population. Despite a checkered history of 

relationships between Gallup and the Navajo people, with some residue of tension 

and mistrust even today, the partnership that has been forged between Gallup and 

the Navajo Nation in the context of this project has been remarkable. I foresee only 

further progress in this relationship as this project moves forward. 

It is important to note that, in my 16 years with the Steering Committee, at no 

point has the City of Gallup attempted to insert its needs and priorities in front 

of those of the Navajo Nation. Rather, it has been a supporting partner, ensuring 

that its participation is mutually beneficial to the City and to its Navajo neighbors. 

As an example of this partnership, there has been a joint effort to provide municipal water supply to Navajo households bordering the City of Gallup on its east side. 

Past bureaucratic barriers to this service have been erased, and by this summer’s 

end, those Navajo families will have running water for the first time. 

Another example is the multilateral partnership between the City, the State of 

the New Mexico, the Navajo Nation, the Indian Health Service and the Navajo Tribal Utility Authority to finance and build components of the Gallup regional water 

system, with the specific objective of moving water through the City’s system to the 

neighboring Navajo communities adjacent to the City. The State has committed over 

$9 million to this initiative, which is being developed in accordance with the plans 

of the Northwestern New Mexico Rural Water Supply Project. 

The Navajo-Gallup partnership was further extended when the City concurred 

with the request by the Navajo Nation, the Governor’s office and other agencies for 

State funding in support of urgently needed water infrastructure serving five rural 

communities in the northeastern sector of the Navajo-Gallup project service area. 

Over $15 million has now been committed by the State to what is referred to as 

the ‘‘Cutter Lateral’’ project, since this infrastructure will ultimately tie into and be 

served by the pipeline to be built under the Northwestern New Mexico Rural Water 

Supply Project. 

These regional system partnerships have generated broad commitment to the 

motto: ‘‘Real water to real people in real time.’’ 

Realizing the shortages that are likely prior to the advent of surface water into 

the City’s water supply, the City of Gallup has also risen to the challenge of the 

region’s impending water crisis by exploring and implementing various initiatives 

to secure its water future—both leading up to and in conjunction with the completion of the Northwestern New Mexico Rural Water Supply Project. 

• In 2003, the City sponsored a Town Hall on Water, co-facilitated by the public 

policy group New Mexico First, at which participants adopted a consensus plan 

to establish Gallup as a model town in the American West in terms of its commitment to secure its water future and cooperate with its neighbors in the 

‘‘water commons’’ shared by all residents in the region. 

70 

• Emerging from the Town Hall was the formation the Gallup Water Board, 

which assisted the City Council in the radical revision of the City’s water rate 

structure in support of conservation and the generation of local financing for 

water infrastructure and future water supply. • Another initiative was a partnership with the Bureau of Reclamation to study 

the feasibility of implementing a comprehensive wastewater recycling program 

utilizing reverse osmosis technology. • Yet further, Gallup has pursued a permit to develop water supply in water 

fields east of the City formerly owned and developed by extractive industries. • Finally, a Memorandum of Understanding is in its final draft stages between 

the City, the Navajo Nation and the Jicarilla Apache Nation, by which the parties will commit to ensure that the City is afforded legal access to a share of 

the water to be supplied by the Navajo-Gallup project. 

Within the overall scenario of the Navajo-Gallup project, the City of Gallup remains in full support of the project and of the water rights settlement which is its 

primary facilitating instrument. At the same time, the City is proactively developing 

a specific long-range financial plan to be able to afford its share of the cost of the 

project. 

The Economics analysis contained in the project’s Planning Report and Draft Environment Impact Statement suggests that the City’s ability to pay is fairly close 

to the threshold formula applied by the federal government in terms of median 

household income. The somewhat misleading conclusion that might be derived is 

that the City can readily afford to self-fund its share of the project. 

A number of factors mitigate against such a foregone conclusion: 

• Gallup’s status as a hub commercial center for a broad geographic area results 

in a unique pattern of impact on the City’s infrastructure. Although the current 

municipal population is about 22,000, the number of people moving around and 

doing business within the City may soar to between 70,000 and 100,000 

people—especially on weekends and on ceremonial occasions. It is essential to 

understand that Gallup serves a broader service area than its municipal boundaries would indicate. Over 80 percent of the students in Gallup schools are Navajo. The Gallup Indian Medical Center serves the regional Native American 

population. Due to the lack of water service on the Reservation, area residents 

regularly use City laundry, car wash and other facilities that increase the demand for water. Higher rates resulting from the City’s cost for participating in 

the new water supply project will be passed on to the low-income residents in 

the broader regional community, thus affecting the overall ‘‘affordability’’ of the 

project. • Although the influx of visitors generates a disproportionately high level of gross 

receipts tax revenues in the City, the City and surrounding County are severely 

limited in the development of property tax revenues, and the City is virtually 

land-locked by public, non-taxable lands on all sides, for which compensation by 

such funds as Payment in Lieu of Taxes (PILT) is only a fraction of the revenue 

shortfalls actually occurring. 

• Although Gallup’s median household income is shown in the Economics report 

as only a shade or two below the ‘‘affordability level’’ of the project, yet this income figure is deceptive as well, since there is a large gap between the minority 

of well-to-do households and the majority of low and moderate-income households in the City. Not surprisingly, two-thirds of the City’s residential water 

revenues come from the population group utilizing the lowest quantities of 

water, that is, fewer than 6,000 gallons per month. These lower water users are 

predominantly the City’s lowest-income households. The City’s inverted water 

rate structure provides some cost protections for these lower users, but these 

may be insufficient to keep rates within the affordable range for this population. 

• The Economics analysis in the Final Report does not take into account the need 

for replacing aging infrastructure. Even with Gallup’s new progressive water 

rate structure and at maximum bonding capacity, the City’s funds are insufficient to meet even current operations, maintenance and replacement costs, 

much less to develop new infrastructure or participate in a new water supply 

initiative. Gallup presently has approximately 71 miles of water distribution 

piping installed prior to 1966, which will need to be replaced over the next 40 

years at an estimated cost of $42.4 million. In addition, a large portion of the 

remaining 157 miles of pipe currently in service will be 40 to 60 years old at 

the time Gallup’s cost share comes due. 

• The City’s stake with respect to the Settlement of the Navajo Nation’s water 

rights in the San Juan River is clearly secondary to that of the Nation, the 

State of New Mexico and the Federal government. With respect to accessing a 

71 

legal water supply, the City first course of action is to pursue a water source 

in consultation with the two Indian tribes involved in the project. The City’s 

pursuit of the independent purchase of water rights in the San Juan River 

would be high in cost, high in controversy and low in feasibility at this point. • It is the City’s position, therefore, that it will need significant Federal funding 

support for its share of the project costs. 

The City is committed, nevertheless, to charting a strong financial course to meet 

the 25 percent threshold of its share of the project costs. One key piece of the strategy will undoubtedly be investment by the State of New Mexico in a portion of 

Gallup’s share of the project costs. City, County, Tribal and Council of Governments 

representatives met recently with staff from the offices of the Governor and the 

State Engineer, and I was very encouraged by the spirit of collaboration in this regard. I will be working with the Governor’s and State Engineer’s Offices and with 

the State Legislature on a mechanism to specifically include financial commitments 

to Gallup over time. 

With regard to the City’s won commitment to the project cost share, several options are currently under consideration with bond counsel, with a preliminary strategy report to be ready for review by mid-August. However, until such factors as the 

cost of water, final operations, mai8ntenance and replacement (OM&R) and capital 

costs, and construction scheduling are determined, it will be difficult for Gallup to 

determine what its ultimate financial strategy will be. In any event, the approach 

being pursued is that, in partnership with the State of New Mexico and McKinley 

County, the city will design and implement a strategy to meet 25% of its project 

cost share. 

All in all, the Northwestern New Mexico Rural Water Supply Project represents 

a ‘‘perfect storm’’ of opportunity for the Federal government to meet the critical 

water needs of the people in this region of New Mexico, while settling the water 

rights claims of the Navajo Nation as an essential component of the overall initiative. The project’s promise of ‘‘real water to real people in real time’’ forms a primary basis for the economic viability of the northwestern quadrant of New Mexico. 

The Steering Committee for this longstanding and critical project effort, along 

with the institutions I represent—the Northwest New Mexico Council of Governments and the New Mexico State Legislature—urge your support for H.R. 1970, and 

by implication, for authorization of the Northwestern New Mexico Rural Water Supply Project. I acknowledge that the projected costs for this project are high, but we 

dare not delay any longer in meeting the human and economic needs represented 

in this initiative. 

For our Steering Committee, this worthy cause has been on our watch for a couple 

of decades, and we hope—now that it’s on your watch as well—that you will not 

let this opportunity fail. 

Thank you for your most favorable and timely consideration of H.R. 1970. 

Mrs. NAPOLITANO. Thank you. Mr. Gregg Houtz, Deputy Council, 

Arizona Department of Water Resources in Phoenix, Arizona. 

STATEMENT OF GREGG HOUTZ, DEPUTY COUNCIL, ARIZONA 

DEPARTMENT OF WATER RESOURCES, PHOENIX, ARIZONA 

Mr. HOUTZ. Madame Chairwoman, members of the Subcommittee, thank you for the opportunity to present the views of 

the State of Arizona on H.R. 1970. H.R. 1970 is another step toward resolving the longstanding claims of Indian nations in this 

country. As the Chairwoman knows well, Arizona has tried to be 

a leader in resolving these through settlements. The concept of 

ending up with wet water versus a paper water right that you get 

in litigation is not acceptable either to Indian tribes nor to other 

water users. We want to see real projects. 

In this vein, we view this as a very important piece of legislation. 

The Navajo Nation is in three states and is the largest Indian tribe 

in the country. As a matter of fact, in Arizona it is the largest of 

all of our 21 tribes and is the largest in population and in land 

area. So we see this bill as both an opportunity as a great step in 

a national effort. 

72 

We applaud the efforts of New Mexico and the Navajo Nation to 

come to settlement. We applaud the partnerships that they are 

forming very much like we have done in the past. However, in its 

present form H.R. 1970 has problems. We believe that it conflicts 

with certain provisions of the law of the Colorado River and the 

1922 compact. We have outlined these in our submitted testimony, 

and we have offered legislative solutions, and we will work with 

committee staff here and in the other body to try and resolve these 

issues of the law of the river. These are very important to Arizona. 

We do not take it lightly. 

The compact, the Arizona v. California Supreme Court decree, 

the 1968 Act and other things in the law of the river protect Arizona water users. We do not take lightly ignoring those provisions. 

We have provided language that we think solves our issues in that 

regard. 

An opportunity exists here. The Navajo Nation sprawls three 

states. We have been in ongoing negotiations with the Navajo Nation for the claims in the little Colorado River and in the main 

stem of the lower Colorado River for over a decade. The main impediment to it has been money and a Federal commitment to provide money so that we can provide wet water to the Navajo Nation. 

We see this as an opportunity in that H.R. 1970 in title 2 provides a unique funding mechanism that should be expanded and 

used to provide funding for other settlements across the west but 

more importantly maybe specifically for the Arizona portion. We 

are diligently working with representatives of the Navajo Nation to 

try and come to resolution of the issues and hope that we are part 

of this bill when it is finally passed. 

In the meantime though, should Congress choose not to wait, it 

is important that the issues raised in the Navajo Nation lawsuit 

against the Secretary on the operations of the Colorado River not 

be ignored. We find it hard to believe that Congress would approve 

this settlement yet leaving the states and the water users in the 

three lower basin states vulnerable to a lawsuit that would continue to go. 

We have just concluded over the last two years the historic 

agreement among the seven basin states on conjunctive use of the 

two main reservoirs and shortage sharing in the lower basin. If 

that lawsuit is still in existence when those programs go into existence next year, they will be included in the lawsuit. We do not see 

how it could not. So we implore Congress to consider requiring that 

the lawsuit be dropped before enactment of this legislation. 

In summary, we will continue to work with our friends in New 

Mexico to try and resolve these issues, and look forward to working 

with committee staff in this body and in the other body to come to 

a conclusion on dealing with the law of the river issue. 

[The response to questions submitted for the record by Mr. Houtz 

follows:] 

73 

Response to questions submitted for the record by 

Gregg Houtz on H.R. 1970 

(HOUTZ) Mr. Houtz, Arizona is part of both the Lower and Upper Colorado 

River Basin. Has water from the Upper Basin ever been authorized to be 

transferred to the Lower Basin? 

ANSWER: The 1922 Colorado River Compact specifically states that the allocations made in Article III (a) and (b) to the Upper and Lower Basins were for exclusive use in each of those Basins. This is true for Arizona as well as the other states. 

Only once has Congress authorized an exception to Article III of the Compact to specifically grant a modification of this requirement (see 1968 Colorado River Project 

Act, 43 U.S.C. 1523(d)). This provision would have accounted the water used for a 

power plant as part of the Central Arizona Project as Upper Basin water regardless 

of whether the location of the plant was in the Lower or the Upper Basin. This 

power plant is located near Page, Arizona, in the Upper Basin, and uses Upper 

Basin water. Because of this, the congressional exception was never exercised. 

It is true that the Upper Basin states transport water out of the Colorado River 

basin to users within their states that are located outside the Colorado River Basin, 

but there is no case where Colorado River water is transported between the Upper 

and Lower Basins. We believe the Compact prohibits transfers from the Upper 

Basin to the Lower Basin and that the water allocations were intended for the exclusive use within each basin. The Compact definition for the term ‘‘Upper Basin’’ 

includes ‘‘and also all parts of said States located without the drainage area of the 

Colorado River System which are now or shall hereafter be beneficially served by 

waters diverted from the System above Lee Ferry.’’ The Compact negotiators recognized transfers out of basin such as the San Juan-Chama Project and others, which 

shows the negotiators’ intent in using the ‘‘exclusive use’’ provision. 

Arizona fully supports the Upper Basin states’ right to develop their allocations 

made under the Compact, but only insofar as they are consistent with the Law of 

River. Finding ways around the Compact that allow use of Upper Basin water in 

the Lower Basin, without first obtaining specific congressional recognition and authorization creates precedent for similar Compact violations in the future, thereby 

increasing the chance that Arizona will suffer the effects of a Lower Basin shortage. 

Under the 1968 Act the Central Arizona Project (CAP) and other post-1968 users 

are first to take shortages. CAP is a primary water source for the cities in the Phoenix and Tucson metropolitan areas. Congress should carefully weigh the equities before allowing such a change in the Compact. Arizona has offered language which 

would address our concerns, and allow the Northwestern New Mexico Project to go 

forward. 

(To WHOEVER) The Jicarilla Tribe is currently receiving funds for the 

Jicarilla Apache Reservation Rural Water System rural water project. How 

do the funds from this legislation relate to the current project funds? 

ANSWER: Not applicable to Arizona. 

(To WHOEVER) Who is responsible for the operation and maintenance 

costs? Who will own the infrastructure once it is completed? 

ANSWER: Not applicable to Arizona. 

Mrs. NAPOLITANO. Thank you for your testimony. Mr. Gerald 

Zimmerman, Executive Director of the Colorado River Board of 

California, Glendale, California. 

STATEMENT OF GERALD R. ZIMMERMAN, EXECUTIVE 

DIRECTOR, COLORADO RIVER BOARD OF CALIFORNIA, 

GLENDALE, CALIFORNIA 

Mr. ZIMMERMAN. Thank you, Madame Chairwoman, and members of the Subcommittee. I want to thank you for giving me the 

opportunity to provide testimony before this hearing on H.R. 1970. 

I am going to confine my remarks to sections of the legislation that 

are of concern to the Board and its member agencies. First, I want 

the Subcommittee to know that from our initial review of 

H.R. 1970, the Board does not in any way oppose the Navajo Nation Gallup project, and it fully recognizes the value and imporVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00077 Fmt 6633 Sfmt 6602 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
74 

tance of this project to the State of New Mexico and the Navajo Nation. 

However, the Board does want to ensure that legislation of this 

nature is consistent with the law of the river and is reflective of 

the broader concerns of the State of California. In this regard, the 

Board does have a number of comments on the proposed legislation. With respect to section 101, it is the position of the Colorado 

River Board of California that this legislation should be modified 

to provide that only water created through extraordinary conservation may be stored in the top water bank, and that this is the first 

water to be spilled. 

Regarding section 201[c][3], it provides that the completion of the 

Navajo Gallup project will be given priority for up to $500 million 

if the Federal share of the cost has not been otherwise provided by 

January 1, 2018. Since the Reclamation fund is made viable 

through the repayment of Reclamation projects from around the 

west, many of which are within California, the Board questions the 

fairness of providing to the Gallup Navajo project a priority position to receive up to half of all of the funds designated to be deposited in this new settlement’s fund. 

Section 303 of H.R. 1970 essentially gets to the heart of the concerns of the Board regarding the law of the Colorado River and the 

need to be consistent with the 1922 Colorado River compact. One 

concern is the clear provision of authority to use water in the lower 

basin even though that water is diverted in the territory of the 

upper basin. That is above Lee Ferry. 

The Board believes that H.R. 1970 needs to specifically address 

first the diversion and use authority in the context of the 1922 Colorado River compact, and second the attributes of the water use in 

the lower basin, both within New Mexico and Arizona, need to be 

clearly defined. In the era of pipelines being proposed to transport 

water from the upper basin to the lower basin, it is imperative that 

precedent setting situations that will impact the law of the river 

in one form or another be appropriately addressed. 

In this regard, the transport of water from the upper basin into 

the lower basin within New Mexico is a rather significant matter 

but the further transport of that water into Arizona is an additional significant step. The Board suggests that legislation authorizing the transportation of water should be clear as to the attributes of the water to be used in such circumstances, and I will 

identify a couple examples. 

The source of the water including linkage to any other acts such 

as the Arizona Water Settlements Act, the priority position of that 

water supply, the U.S. Supreme Court decree accounting arrangement and any other important attributes such as the operation, 

maintenance and replacement costs that may be associated with 

that project such as you could use the central Arizona project if it 

is an attached diversion from that project. 

The Board recommends that section 303 of the bill be amended 

to provide this clear authorization and these points of clarification. 

In the alternative, authorization for the construction of facilities 

that would move water from the upper basin to the lower basin 

should be removed from H.R. 1970. 

75 

In closing, Madame Chair and members of the Subcommittee, I 

want to reiterate that the Board does not oppose the Gallup Navajo 

project. However, it does want to ensure that this legislation is consistent with the law of the river and reflective of the broader concerns of California. Thank you. 

[The prepared statement of Mr. Zimmerman follows:] 

Statement of Gerald R. Zimmerman, Executive Director, 

Colorado River Board of California, on H.R. 1970 

Madam Chairwoman, and Members of the Committee and Subcommittee, thank 

you for this opportunity to submit written testimony regarding H.R. 1970. Set forth 

below are initial comments regarding the provisions in H.R. 1970 from the perspective of the Colorado River Board of California. 

I am the Executive Director of the Colorado River Board of California (CRB), the 

agency in California created by State statute to protect California’s rights and interests in the resources provided by the Colorado River and to represent California in 

discussions and negotiations regarding the Colorado River and its management. 

California’s rights and interests in the water and power resources of the Colorado 

River System are vital to the State’s economy. Seven counties in Southern California, with more than half of the state’s population, receive water and hydroelectric 

energy from the Colorado River. All ten members on the CRB are appointed by the 

Governor. 

The CRB has reviewed H.R. 1970, and its companion bill S. 1171. From our initial review of the proposed legislation, CRB does not oppose the Navajo-Gallup 

Project; and it fully recognizes the value and importance of the Project to the State 

of New Mexico and to the residents of the Navajo Nation. However, the CRB does 

want to ensure that legislation of this nature is consistent with the law of the river 

and is reflective of broader concerns of the State of California. In that regard, the 

CRB has a number of comments on the proposed legislation, primarily from the perspective of the law of the Colorado River. These comments are listed in order of the 

topic’s appearance in the legislation. 

1. Section 101—Top Water Bank—Arrangements of this nature are being utilized 

in various parts of the West where the reservoir circumstances facilitate this sort 

of interim water storage. However, in this situation the legislation does not clarify 

how the water to be stored in the top water bank must be developed. It is the position of the CRB that the legislation should be modified to provide that only water 

created through extraordinary conservation may be stored in the top water bank. 

In other words, water could only be stored if that water would have otherwise been 

beneficially used except for the implementation of extraordinary conservation measures and as provided in H.R. 1970, it should be the first water to spill. 

2. Section 102—Amendment of the 1963 Act—This section amends 43 USC 615 

jj, which was enacted in 1962 as a component of the Navajo Irrigation Project and 

San Juan-Chama Project authorizing legislation. Section 2 of the 1962 Act is eliminated and a much more detailed provision has been substituted. The CRB notes 

that the wording in Section 102, subpart (b), relating to priorities in times of shortages is not clear as to whether the first rights listed are to have priority over the 

others or are the first to be cut back. Clarification of this provision would be useful 

in obtaining a full understanding of the intention behind the proposed legislation. 

3. Section 201—Funding via the 1902 Act Reclamation Fund—This section of the 

proposed legislation provides a creative mechanism for funding implementation of 

settlement agreements and completion of the Navajo-Gallup Project. The CRB understands that Section 201 provides that $1.1 billion would be deposited into the 

treasury before it is set to terminate on September 30, 2030. 

Section 201 (c) (3) provides that completion of the Navajo-Gallup Project will be 

given a priority, for up to as much as $500 million, if the federal share of Project 

costs has not been otherwise provided by January 1, 2018. Since the Reclamation 

Fund is made viable through the repayment of reclamation projects from around the 

West, many of which are in the State of California, the CRB questions the fairness 

of providing to the Navajo-Gallup Project a priority position to receive up to onehalf of all funds designated for deposit into the new settlements fund. Prior to taking a formal position on this section of the bill, the CRB will need to consider this 

matter further accounting for the likely needs of California projects that are linked 

to settlement agreements involving the United States. One approach may be to have 

the new fund be a source of revenue for the Navajo-Gallup Project should additional 

federal funding be necessary by 2018 on a basis of sharing with other deserving 

projects in the West, instead of with a priority as set forth in Section 201. 

76 

4. Section 303—Delivery and Use of Water—This section of the bill gets to the 

heart of the concerns of the CRB regarding the law of the Colorado River and the 

need to be consistent with the Colorado River Compact of 1922. One concern is the 

clear provision of authority to use water in the lower basin even though that water 

will be diverted in the territory of the upper basin. H.R. 1970 needs to specifically 

address: 1) the diversion and use authority in the context of the 1922 Colorado 

River Compact, and 2) the attributes of the water use in the lower basin both in 

New Mexico and Arizona. 

A related concern is with the use of such water in the territory of the lower basin 

within the State of Arizona so as to serve the community of Window Rock on the 

Navajo Reservation. The State of Arizona has asserted that such water will need 

to be viewed as a portion of Arizona’s lower basin apportionment and should also 

come with certain attributes linked to the Central Arizona Project (CAP) such as 

priority date and repayment of project operations, maintenance, and replacement 

costs. Mr. D’Antonio for New Mexico has asserted that H.R. 1970 should ‘‘leave 

open the determination of the source of water for use in Arizona’’ and that accounting for the water as a diversion of CAP water would ‘‘have to be agreed to by all 

basin states,’’ which has not yet occurred. This issue needs to be resolved among 

the Colorado River Basin states and the agreed upon solution included in 

H.R. 1970. 

In the current era of pipelines being proposed to transport water from the upper 

basin to the lower basin, it is imperative that precedent-setting situations that will 

impact the law of the river in one form or another be appropriately addressed. In 

this regard, the transport of water from the upper basin into the lower basin within 

New Mexico is a rather significant matter, but the further transport of that water 

into Arizona is an additional significant step. The CRB suggests that legislation authorizing the transportation of water should be clear as to the attributes of the 

water to be used in such circumstances; for example, the source of water (including 

linkage to the Arizona Water Settlements Act if appropriate), the priority position 

of that supply, U.S. Supreme Court decree accounting arrangements, and any other 

important attributes such as project operations, maintenance, and replacement costs 

that may be associated, for example, with the CAP water supply. Thus, the CRB 

recommends that Section 303 of the bill be amended to provide these points of clarification. In the alternative, authorization for the construction of facilities that move 

water from the upper basin to the lower basin should be eliminated from H.R. 1970. 

If the Arizona position regarding the use of CAP-related water is adopted, the 

CRB also suggests that attention be given to what additional authority may be 

needed so as to clearly provide that CAP-related water may be delivered by the Secretary to a portion of Arizona not contemplated as a part of the CAP service area 

at the time of its authorization in 1968. 

5. Section 306 (f) (3) and Section 302 (f) (3)—Application of the Endangered Species Act—These sections of the bill address the ‘‘application of the’’ ESA, but it is 

unclear as to the intended effect of these provisions. 

6. The State of Arizona has taken the position that H.R. 1970 and S. 1171 should 

not be enacted without a parallel settlement of the rights of the Navajo Nation in 

Arizona, arguing that all Indian water rights settlements should be comprehensive, 

if possible. Although the CRB understands and appreciates the position of Arizona 

on this issue, the CRB is not prepared to advance a position on this specific issue 

at this time. 

Nevertheless, it is important to express our concern over the lawsuit filed by the 

Navajo Nation in 2003 in the United States District Court in Arizona. California 

agencies represented on the CRB have intervened in that litigation. That suit contains claims that challenge some very important lower basin water management 

programs. For example, the suit challenges a number of matters related to California’s Quantification Settlement Agreement (QSA): 1) that the National Environmental Policy Act (NEPA) compliance process for the QSA was flawed; 2) that the 

Record of Decision associated with the Secretary’s approval of the QSA and the Inadvertent Overrun and Payback Policy (IOPP) is flawed; 3) that the NEPA compliance process for the IOPP is flawed; and 4) that the NEPA compliance process for 

the Interim Surplus Guidelines was flawed. 

Similarly, the Navajo Nation has challenged the Arizona Water Banking 

Authority’s interstate storage program and the federal regulations promulgated to 

facilitate that program. The Navajo Nation asserts these claims on the foundation 

that these kinds of water management actions have an impact on the Nation’s claim 

to Colorado River water in Arizona and its eventual use of that water. However, 

in reality none of these actions or programs impacts the amount of water available 

to the Nation as a part of the Nation’s federal reserved rights claims, as a practical 

matter (actual water supply) or in relation to the availability of Arizona’s unused 

77 

apportionment to satisfy the Nation’s lower basin claims. This lawsuit presents a 

cloud over these important river management programs that are of benefit to the 

basin states. As a result, the CRB suggests that it be a high priority to obtain a 

dismissal of that suit whether in the context of the Arizona settlement, the New 

Mexico settlement, or both. 

In closing, I want to reiterate that the CRB does not oppose the Gallup-Navajo 

Project; however, it does want to ensure that legislation, such as H.R. 1970, is consistent with the Law of the River and is reflective of the broader concerns of the 

State of California. Additionally, the comments set forth above have been advanced 

on the basis of its initial review of the proposed legislation and the comments of 

others. As such, the CRB would like to reserve its opportunity to revise any of the 

positions advanced above and to add to its comments, if additional points of concern 

come out of this process. 

On behalf of the CRB, I want to thank the House Committee and Subcommittee 

for the opportunity to provide this testimony and for giving attention to the comments of the CRB. Should the subcommittee or committee require any clarification 

of these comments or additional information, you may reach me at (818) 500-1625, 

extension 308. 

Response to questions submitted for the record by 

Gerald R. Zimmerman on H.R. 1970 

(To Whoever) The Jicarilla Tribe is currently receiving funds for the 

Jicarilla Apache Reservation Rural Water System rural water project. How 

do the funds from this legislation relate to the current project funds? 

Answer—Not applicable to the Colorado River Board 

(To Whoever) Who is responsible for the operation and maintenance costs? 

Who will own the infrastructure once it is completed? 

Answer—Not applicable to the Colorado River Board 

Mrs. NAPOLITANO. Thank you for the testimony, and now I move 

on to the question and answer. Before I start, there are a couple 

of little items that I wanted to touch base on. There are three 

renderings in the back of the room by children in regard to the 

water delivery, and I am going to enter into the record copies of 

those so that people will realize what it really means to those children. I think that is a very important point to make. So without 

objection I will order that to be. 

Then, Mr. Houtz, you mentioned you wanted Arizona to be part 

of the agreement. How close are you to being able to reach consensus so that it possibly could be added if that were the case? 

Mr. HOUTZ. I think it depends on whether the money is available. We have been meeting on a fairly regular basis. We have a 

meeting scheduled with the Navajo Nation in about three weeks, 

three and a half weeks, where they will submit another formal proposal to us. I cannot go into details because of the litigation. 

However, the funding is the key, and if funding is available I am 

sure that we can reach an agreement. It is very hard to come up 

with funding in this Congress with so many things going on, and 

we think that the approach that New Mexico and the New Mexico 

delegation has taken is a very creative one, and we want to be part 

of it. 

I cannot really put a timetable on it but if we can solve the funding issue I think we could be done quickly. We have been working 

on all the other issues over the years and can conclude quickly 

after that. 

Mrs. NAPOLITANO. It is my understanding that the lower Colorado region is already over appropriated. Where will you get the 

water for Arizona? 

78 

Mr. HOUTZ. As we point out in our testimony, Congress reserved 

a portion of the water that was transferred to the Secretary under 

the Arizona Water Settlements Act, and they reserved 6,411 acre 

feet of the CAP water to be reserved for an Arizona Navajo settlement for delivery to Window Rock. So we believe that at least the 

Window Rock portion has already been designated out of the Arizona Water Settlements Act, and we have offered up a portion of 

the other water reserved under that Act to the Navajo Nation for 

settlement of the rest of the claims in Arizona. There is a question 

of the firmness and the ability to deliver that, and we are negotiating with them on that. 

Mrs. NAPOLITANO. Thank you. 

Mr. HOUTZ. But it would be out of existing sources and existing 

allocations. 

Mrs. NAPOLITANO. If it were not for the fact that the Navajo Nation has been waiting for decades, I would tend to agree with many 

of the points that you have made but that would mean holding off 

for another decade probably, and that just does not seem quite the 

thing to do or the humane, how would I say, the legal thing to do. 

Mr. HOUTZ. Madame Chairwoman, if we do not come to at least 

great progress on an Arizona settlement, we will be in litigation in 

October. The stay that the Court has granted us is only until October 12 of this year. So I am not thinking that we are waiting a decade. I think we are waiting a number of months to see where we 

are, and if we are not negotiating we will be in Court litigating. 

Mrs. NAPOLITANO. And you have been in contact with the Senate 

and the authors? 

Mr. HOUTZ. Yes. Last month the Senate Energy Committee had 

a hearing on this. We have been in close contact with their staff 

over there. 

Mrs. NAPOLITANO. Mr. Shirley, comment? 

Mr. SHIRLEY. Madame Chairwoman, I think the Navajo Nation 

and the State of New Mexico are ready to move forward at this 

point with H.R. 1970, and we would like to see it legislated and 

acted upon and monies put into it ASAP. Like you said, Madame 

Chairwoman, we have waited for a long time, and now that we are 

here we really need to be moving forward. 

I think the settlement that we are negotiating with Arizona is 

going to take—I agree with you—more years. I do not think it can 

be negotiated and settled in short order. So I would like to see as 

President of the Navajo Nation that we move forward with this legislation H.R. 1970. Thank you. 

Mrs. NAPOLITANO. What about your members in Arizona? Are 

they in agreement? 

Mr. SHIRLEY. Yes, I believe so. I have some legislators representing the Navajo Nation council here with me. The Navajo Nation council is in full agreement with what we are doing. They are 

in full support, yes. 

Mrs. NAPOLITANO. And I understand that the Navajo Nation has 

waived nearly half of their water claims in the settlement in exchange for water infrastructure. What other options do you have if 

this legislation is not passed? 

Mr. SHIRLEY. If it is not passed, I think litigation is the thing 

that looms, and of course as President I am not one to fight anyVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00082 Fmt 6633 Sfmt 6602 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
79 

body. I think the goal of this is to settle it. We have with the State 

of New Mexico, the different users of the water, and these lawsuits, 

it takes millions of dollars, and rather than putting it in fighting 

we need to put it into infrastructure and serving the people. I think 

we have come a long ways toward settling this, and I think we 

need to get it on the books and get it behind us. 

Mrs. NAPOLITANO. Thank you. Mr. Udall. 

Mr. UDALL. Thank you, Madame Chair, and thank you for your 

interest in this. I just want to thank you once again for holding 

this hearing and your interest in it, and as you pointed out, I 

mean, the real issue here is children and children growing up like 

everybody else. Let me first thank all of the panelists for your testimony today. Patricia Lundstrom and President Joe Shirley and 

Jim Dunlap on the New Mexico side have done an awful lot to 

move this forward, and this piece of legislation had a large, large 

number of people that have worked and these three have been out 

there on the front, and I just thank you for your hard work and 

thank you for your leadership and also Mr. Houtz from Arizona 

and Mr. Zimmerman for your interest in trying to work things out 

here. 

These pieces of art work from the children of Lake Valley School 

I think really say it all. You know these young people want to have 

water like everybody else, and I think that is the point, Mr. Johnson, that we are trying to get across to this Administration. I am 

happy you did not read your statement today because it is just full 

of inconsistencies, and it would fly in the face of what I think is 

a very good, positive settlement, and I am very disappointed in the 

Administration’s position. 

I cannot tell you that too strongly. If I expressed it as strongly 

as I felt, we might not have a chance to bring you around on this. 

So I just hope that you will take a look at this in terms of the big 

picture, and the first question I would like to ask you, Mr. Johnson, 

have you been to the Navajo reservation? 

Mr. JOHNSON. Yes, I have. 

Mr. UDALL. Yes. And have you seen the situation out there? 

Have you lived in a hogan and done like 70, 80,000 Navajos are 

where you have had to haul water to cook and to wash and prepare 

your daily needs? Have you kind of imagined how that would be? 

Mr. JOHNSON. I have not lived on the reservation certainly but 

I have—— 

Mr. UDALL. Well we might like to host you out there for a day 

if you would like to come and get a real feel for the situation on 

the Navajo reservation. Do you think there is any other group of 

this magnitude that is in this water situation in the country? I 

mean, you look at the water situation for the whole country where 

you have kids that are living in a situation where they do not have 

water, where their families have to haul water, where there is 

probably a high level of unemployment, these kinds of things. Is 

there a water situation like this anyplace else in the country? 

Mr. JOHNSON. Let me go back to your previous question. While 

I have not actually lived on the reservation in any of the homes, 

I have visited there, and I have personally seen the water conditions on the Navajo Nation, and in my previous job the Navajo Nation was part of the region of the Bureau of Reclamation that I 

80 

worked with, and so I am familiar with the issues of the Navajo 

Nation and the needs for water supplies, and I agree that certainly 

the needs are very great. 

There are lots of other tribes and Indian reservations across the 

west where water is an issue, and I do not know that there is one 

that is as big. The Navajo Nation is certainly the biggest Indian 

tribe I believe in the west. So I do not know that there are any as 

big as the Navajo Nation but there are certainly others that are in 

need of water supplies in a similar way. 

Mr. UDALL. Do you think that there is an obligation on the part 

of the Federal government when you have the treaty that President 

Shirley talked about where we agreed to really help them build a 

permanent reservation? I do not see how you build a permanent 

reservation without some kind of water supply. I think you doom 

their economic development and their daily living if you do not 

have a water supply situation. Would you agree this would be 

something to fulfill the treaty obligations and that it is long overdue at this point? 

Mr. JOHNSON. I do not know that I am in a position to talk about 

what the formal obligations of the United States are. I am not familiar enough with that law and those provisions of the treaty to 

try to answer that. 

Mr. UDALL. Well let me ask a little more specifically here because your objections seem to focus on—I noticed my time is up, 

Madame Chair. 

Mrs. NAPOLITANO. That is OK. 

Mr. UDALL. Let me focus here on your Administration’s public 

support for what is called the Rural Water Supply Act of 2005. You 

know you have publicly been out there. That is a law that says that 

in rural water supply systems the Federal government steps up to 

the plate and pays 75 percent which is what is in this piece of legislation. So I think with your position on the one hand which is 

very different than many other Administrations in terms of water 

settlements, and then your position on rural water supply in this 

particular act just do not fit with me. So, I mean, can you explain 

to us how you rationalize that with the enormous needs that are 

out there? 

Mr. JOHNSON. Well it is true that we have a Rural Water Supply 

Act that was passed. Was it last year? Yes, at the end of the last 

Congress that authorized Reclamation to work with rural areas in 

planning and assessing the needs for water supplies in the west. 

That legislation calls for us to develop criteria under which we 

would administer that program, and we have not yet developed 

that criteria. 

We anticipate that that would be developed by the end of 2008, 

and so until we have got that criteria in place I do not think there 

is any basis for us to judge how this Act and how this settlement 

would fit under that criteria. I do not think we are saying that it 

would or it would not be viable under that criteria. I am just saying that we have not developed the criteria, and there is no basis 

for us to make that judgment at this time. 

Mr. UDALL. If you are going to wait on the development of the 

criteria until the end of 2008, you all are going to be out of office. 

Your Administration is gone, and you have not made a step 

81 

forward to try to help us get this legislation passed and in a position that we can start helping people with water, is that not right? 

If you are going to wait. 

It seems to me at a policy level in the department if you have 

made the decision that rural water situations it is OK for the Federal government to weigh in and pay 75 percent then I do not see 

why you cannot be given instruction or somebody in the department cannot say let us start working on the settlement and try to 

get these things worked out. 

Mr. JOHNSON. Well I think that you know I mentioned in my oral 

testimony that we met yesterday, and we have scheduled next 

week more discussions with the state and the Navajo Nation. I 

think that some of those things are part of what is being talked 

about in those discussions. So I think we are interested in working 

with the Navajo, and I do not know that the development of our 

regulations on rural water necessarily precludes what might happen in a settlement of the tribe’s Indian claims. 

I mean, there are some difficult issues associated with this settlement. The cost and I think the funding mechanism are the primary 

ones that we have concerns about but there are others such as the 

reimbursement of the other parts of the project other than the tribal part, and those are part of what I think we are talking to the 

Nation and the state about in these discussions. 

Mr. UDALL. Madame Chair, you have been very generous. I know 

you have other questions. 

Mrs. NAPOLITANO. We have a vote pretty soon so you better wrap 

it up. 

Mr. UDALL. OK. Let me ask about your understanding as far as 

other entities being involved because I know, Mr. Johnson, part of 

your testimony dealt with the idea that there were not adequate 

or significant contributions. Are you aware, as Mr. Dunlap said, 

that the State of New Mexico and Governor Richardson in past legislation, they have talked specific amounts? I mean, I have seen 

amounts from $75 million and up in terms of making contributions 

to this, and I am sure if it was a critical part that they would be 

willing to step up to the plate further. 

So I think it is really important for you to let us know in terms 

of numbers what is needed there in terms of moving this along. I 

mean, do you have any specific things you can tell us right now in 

terms of what you think is an adequate contribution in terms of the 

other parties to a settlement like this? 

Mr. JOHNSON. We are aware of New Mexico’s proposal for contributions. I am not in a position today to be able to give you an 

answer on what will be required. I am just not in a position to answer that now. I think that will be something that would be talked 

about in the discussions. 

Mr. UDALL. OK. Well Madame Chair, thank you. I want to thank 

you very much for holding the hearing, and I know about your 

sympathy for children in this kind of situation. Because we have 

the votes and all of that, I hoped to go into more detail with some 

of the other witnesses, but I hope that we can submit some of our 

questions for the record and have the witnesses answer them. I 

look forward to visiting and spending significant time out there in 

New Mexico to assure the Federal government that New Mexico is 

82 

fully behind this, and we hope Arizona will also join us along the 

way, and thank once again Mr. Dunlap and President Joe Shirley 

and Patricia Lundstrom and all the panel. 

Mrs. NAPOLITANO. Thank you, sir. 

Mr. UDALL. Thank you. 

Mrs. NAPOLITANO. Commissioner, do you think some of those 

questions might be answered in writing? 

Mr. JOHNSON. Certainly we will respond to any questions that 

you submit. I am not sure that we may be able to go because we 

are in discussions. I am not sure how far, how much detail we will 

be able to provide in writing but certainly to the extent that we 

have information we will respond as best we can. 

Mrs. NAPOLITANO. Clarify at least some of the questions that 

some of the members may have. 

Mr. JOHNSON. Well I think particularly the question that Congressman Udall was asking about what is an acceptable cost share, 

I think I do not know what our timeframe is for establishing that. 

Certainly we will respond to that as best we can in writing, and 

I just do not want to commit to a lot of specifics as it relates to 

that. 

Mrs. NAPOLITANO. You are the Commissioner. 

Mr. JOHNSON. Yes, I am, but I work with a lot of other people 

on these issues as well including Mr. Ragsdale, Director of the Bureau of Indian Affairs, and certainly others as well. 

Mrs. NAPOLITANO. Understood, and I know how it runs. That is 

precisely why we want it for the record. 

Mr. JOHNSON. I understand. 

Mrs. NAPOLITANO. In page 4 of your testimony you indicate that 

the CNP provide a flexible framework to evaluate the settlement 

but then you only focus on the underlying Federal liability in discussing the appropriate Federal contribution. The CNP, however, 

specifically talk about Federal and non-Federal exposure plus Federal trust or programmatic responsibilities as a measure of a Federal contribution. The CNP also refers to the overall value of the 

tribal claims to water. Is the Administration trying to reinterpret 

or amend the CNP in an attempt to reduce the Federal contribution to Indian water rights settlements? 

Mr. JOHNSON. If I could, Madame Chairman, I would like to 

defer that question to Director Ragsdale. 

Mrs. NAPOLITANO. Thank you. Mr. Ragsdale. 

Mr. RAGSDALE. Thank you, Madame Chairwoman. I thought I 

was going to get off completely. The short answer to your question 

is no. 

Mrs. NAPOLITANO. Explain please. 

Mr. RAGSDALE. We are not trying to reinterpret the criteria and 

procedures that were published in the Federal Register in 1990 and 

subsequent Administrations have endeavored to follow since with 

regards to all of the water rights negotiations with Indian tribes. 

Mrs. NAPOLITANO. OK. Well that is interesting. I will take that 

into consideration. I guess partly my concern in hearing how long 

it has been before something of this nature has to be brought up 

to Congress for action—I am talking about water deliveries and I 

understand that there are many other tribes that might not have 

water delivery—is it possible that the Bureau of Indian Affairs may 

83 

bring to the Congress other situations in the future so that we do 

not have to go through protracted discussions and be able to determine whether or not we can start setting aside funding to be able 

to provide potable water to people in the United States that should 

have had it a long time ago? 

Mr. RAGSDALE. Well my understanding is that there are five specific negotiations ongoing in New Mexico right now with the Pueblo 

tribes. I think in Commissioner Johnson’s and my statement we 

make reference to that, and that was one of the things that the Administration believes that should be taken into account in concern 

with this one. 

Mrs. NAPOLITANO. Thank you. I will probably put one of the 

questions to your administration, sir. Mr. Houtz, could you please 

clarify a previous answer? Are you saying that in order to receive 

water under this settlement the Navajo Nation must give up some 

of its legal claims to water in Arizona? 

Mr. HOUTZ. Our reading of what Congress passed in the Arizona 

Water Settlements Act is that if the water is to be made available 

for Window Rock under that Act that they have to come to a settlement with the State of Arizona on the Arizona claims. That might 

not answer all of your question. I am not sure I understood all of 

your question. We believe that they need to waive and release their 

claims to the main stem Colorado River for us to enter into a settlement on the Arizona side of the lower Colorado River basin on 

the reservation. 

Mr. SHIRLEY. Let me perhaps shed a little light on that. In this 

Settlement Act, I believe any water that is diverted across the Arizona state line has to be settled separately and completely with Arizona and the Navajo tribe. It has nothing to do with we are not 

going to deliver any water across the Arizona line until Arizona 

and Navajo Nation reach an agreement on that, and I would remind Arizona that the infrastructure that we are asking for in this 

project to put the pipeline down to deliver some of Arizona’s entitlement water to the Navajo tribe is a great benefit for the State 

of Arizona, and while I listened to Arizona and California both in 

their concerns about the law of the river, certainly New Mexico will 

follow the law of the river, and we will negotiate with them in 

those things but we do not believe that, as they will not believe 

that we should have any hold on any negotiations of the use of 

their water within California or Arizona. 

That is their water. They are entitled to work that out as we are 

in New Mexico but we will work with them any way we can. Thank 

you. 

Mrs. NAPOLITANO. Thank you. Just a last question. I think I 

might have to wrap this up but, Mr. Johnson, are Mr. Zimmerman 

and Mr. Houtz’ concerns regarding the law of the river warranted, 

and what are your thoughts? 

Mr. JOHNSON. I think that there are pieces of the settlement that 

does require clarification under the law of the river. I think that 

as a practical matter nobody is harmed. I don’t mean physically. 

I mean, there is nobody that is being harmed by what is being proposed. However, I think that there are some places where what is 

being done is inconsistent with the law of the river as it currently 

exists. 

84 

I think that is something that can be worked out. I think I have 

heard the states say that there are ways to develop language that 

would go in the legislation that could satisfy folks’ concern there, 

and I—like we usually do—encourage the states to get together 

and work that out. I think it is something that is solvable. 

Mrs. NAPOLITANO. Well I would hope that they would sit and 

work with all the parties to be able to ensure that everybody is understanding why it was formulated and how it benefits everybody. 

With that, just a couple more comments I would like to tell Ms. 

Lundstrom, that I like your statement of real water to real people 

in real time, and real wet water since we do communicate that in 

terms of paper and water, real water. It is really the wet water 

that I found out and I am still learning so I was very interested 

in your motto. 

Ms. LUNDSTROM. Thank you, Madame Chair. We will make that 

correction on our testimony. 

Mrs. NAPOLITANO. That is just a comment because I am hearing 

wet water versus water, and to me water is supposed to be this not 

just comments and not just paper. With that, I would like to be 

able to conclude the Subcommittee’s legislative hearing on 

H.R. 2515, the Lower Colorado River Multi-Species Conservation 

Act, and H.R. 1970, the Northwestern New Mexico Rural Water 

Projects Act. 

I thank all of the witnesses for coming here today and offering 

their perspectives on both of these bills. Your comments, testimony 

and expertise has been very helpful. Under committee rule 4[h] additional material for the record should be submitted within 10 business days, business days, after the hearing, and I would appreciate 

the cooperation of all witnesses in prompt response and reply to 

any questions that have been put to you that were not answered. 

With that, I would like to thank you and all the people for being 

so kind and accommodating. The hearing is adjourned. 

[Whereupon, at 12:23 p.m., the Subcommittee was adjourned.] 

[Additional material submitted for the record follows:] 

[A statement submitted for the record by Elston Grubaugh, 

Acting General Manager, The Imperial Irrigation District, on 

H.R. 2515 follows:] 

Statement submitted for the record by Elston Grubaugh, Acting General 

Manager, The Imperial Irrigation District, on H.R. 2515 

Madam Chairwoman and members of the committee and subcommittee, thank 

you for the opportunity to submit written testimony regarding H.R. 2515, concerning the Colorado River Multi-Species Conservation Program (MSCP). The MSCP 

is an exceedingly important program to water and power users in southern California and therefore we urge you to strongly support H.R. 2515 as it moves through 

the Congress. 

I am the acting general manager of the Imperial Irrigation District (IID). IID is 

the largest irrigation district in the United States in terms of water volume used. 

IID holds a right to almost three-fourths of California’s 4.4 million acre-feet (maf) 

apportionment to the Colorado River. Growers within IID produce crops worth more 

than a $1 billion a year, including much of the winter vegetables consumed throughout the United States. Because of its dependence on the Colorado River as its sole 

source of water supply, IID is very concerned about the MSCP and this effort to obtain congressional approval of this vitally important program. 

I want to emphasize that the Colorado River is very important to the citizens of 

California as a whole. As you know, Colorado River water is used to supply water 

to about 20 million people in southern California and supplies water to hundreds 

85 

of thousands of acres of fertile farm land in that region. Although California is 

blessed with more abundant water supplies in the northern part of the state, providing water to the arid southern part of California has been a challenge throughout 

its history. Now that southern California is clearly dependent on the Colorado River 

as a source of supply, it is essential to see the MSCP as an important insurance 

policy that will hopefully protect California’s Colorado River water and power users 

for decades into the future. 

Stated differently, part of the effort behind the MSCP is to avoid the kinds of Endangered Species Act (ESA) disasters that have unfolded in the Klamath region of 

California and Oregon, on the Snake River system in the northwest and on the Rio 

Grande system in New Mexico. In this context, it is important for the Congress to 

recognize that California and the water and power agencies in our state have chosen 

in this situation to work within the structure of the ESA, as opposed to attempting 

to avoid its often burdensome regulatory requirements. 

With the goal of protecting California’s water and power supplies in mind, it is 

critical to take into account recent events occurring within California that have 

caused what some are calling a water crisis. With population growth and global 

warming as a backdrop, the Bay Delta region now faces a host of problems that are 

also tied to the ESA and the California Endangered Species Act (CESA). Facing the 

loss of a substantial supply of water from northern California via the California aqueduct, urban southern California must now brace for a very serious circumstance 

in 2008 and beyond. The significance of this water crisis for California cannot be 

overstated. It is therefore fundamental, in our view, to pay special attention to those 

areas in which we can bring security to the water supplies that feed southern California. In simple terms—that is the main purpose of the MSCP. In essence the 

MSCP is an insurance policy that protects southern California’s use of Colorado 

River water, in the context of the ESA, for a period of 50 years. In light of recent 

ESA developments around the West, this form of protection for southern California 

should be viewed as an absolutely essential action based on sound public policy. 

We recognize that some have suggested federal legislation to support the MSCP 

is not needed. In our view this is a mistaken perspective. It is the position of IID 

that federal legislation is indispensable. Here is a brief summary of the more important reasons for this legislation. 

1. Authorization for appropriations—IID is familiar with the federal legislative 

process and with the annual difficulty of developing an approved federal budget. In 

this situation the MSCP agreements provide for 50 percent of the program funding 

to come from the federal government, via the Bureau of Reclamation. Even if Reclamation has been successful in obtaining appropriations for these purposes in recent years, MSCP participants like IID want the security of an authorization of appropriations for this program. Given the long-term contractual financial commitment of the non-federal agencies and states, requesting a parallel commitment from 

the federal government is not unreasonable. This is a significant long-term federal 

program—eventually costing more than $1 billion—that deserves the security of an 

authorization for appropriations. 

2. Cost sharing—the MSCP agreements provide for a 50/50 cost-sharing arrangement between the federal and non-federal parties. IID sees this as a fair arrangement, but to date that arrangement is only supported by the commitment of federal 

executive branch officials. Again, this is a long-term, expensive program that is of 

critical importance to the non-federal parties like IID. Something as important as 

the 50/50 cost-share arrangement should be blessed by the Congress. 

3. Authorized program for the Bureau of Reclamation—the MSCP is to be implemented and managed on a day-to-day basis by the Bureau of Reclamation. IID is 

comfortable with that arrangement and, indeed, IID has confidence that Reclamation will do an excellent job in implementing the MSCP. Nevertheless, IID is aware 

of questions that have been asked about Reclamation ‘‘mission creep.’’ In other 

words, in the light of evolving times the mission of the Bureau of Reclamation is 

also evolving. But some Members of Congress have suggested that substantial 

changes in the mission of Reclamation should be approved and sanctioned by Congress. IID agrees. The MSCP is a species and habitat restoration program. It is not 

the construction of a dam or canal or other such water supply feature—which is 

viewed as the original mission of the Bureau of Reclamation. In order to avoid any 

confusion over the 50-year period of this important ESA program, it will be very 

helpful for the Congress to expressly empower Reclamation to carry out this program and to implement the MSCP in accordance with the program documents. 

4. MSCP water uses—the MSCP legislation provides authority for the Secretary 

of the Interior to enter into an agreement with the three lower basin states of California, Arizona and Nevada in order to legally support the kinds of water uses that 

will be essential for its implementation. Under the authority of the Boulder Canyon 

86 

Project Act (43 USC 617 et. seq.) the secretary has issued contracts for the use of 

water in the lower basin states. Those contracts routinely provide that the use of 

water will be for domestic or irrigation uses, or both. But here the use of water will 

be for the maintenance of protected species and for the maintenance of habitat. The 

result is that there could be tension between the underlying legal underpinnings of 

water acquired for MSCP program purposes and the unique nature of the MSCP 

water uses. In other words, without this provision in the MSCP legislation, a critical 

component of the MSCP program—application of water for the needs of species and 

habitats—could be on questionable legal ground. IID has personal experience with 

this issue in the context of the Quantification Settlement Agreement (QSA) and differing views as to what water uses might be allowed under certain water delivery 

contracts. IID strongly urges that reasonable action be taken to avoid that problem 

in this situation. 

5. Waiver of sovereign immunity—the MSCP legislation provides for a narrow 

waiver of sovereign immunity to enforce program agreements. As you know, the 

MSCP is a combination of compliance under Sections 7 and 10 of the ESA. 

Section 10 is that part of the ESA that applies to non-federal parties and provides 

for the development of long-term habitat conservation plans (HCPs). The MSCP is 

in essence an HCP under Section 10 of the ESA. Part of the Section 10 HCP process is the execution of an implementation agreement between the U.S. Fish and 

Wildlife Service and the non-federal parties helping to fund the HCP. That agreement is, of course, a binding contract between the parties and in this case involves 

a great deal of money and lasts for a period of 50 years. The implementation agreement also specifically provides that the remedy of money damages is unavailable to 

any of the parties. Under these circumstances IID believes that it is reasonable to 

request the enactment of a waiver of sovereign immunity so that the non-federal 

parties have a clear opportunity for judicial enforcement against the Fish and Wildlife Service should this be necessary within the 50-year program term. 

Along with its non-federal MSCP partners, IID has devoted more than 10 years 

and considerable resources to the development of the MSCP. Now IID faces substantial annual financial payments to help fund the MSCP. Even with that burden IID 

sees the MSCP as a very beneficial and well-structured program that is critical to 

its long-term plans to provide security for its water and power resources under the 

federal ESA and CESA. IID remains committed to its support of the MSCP, but the 

district would like to see that commitment matched by the congressional approval 

of H.R. 2515. 

The reasons outlined above clearly demonstrate that there is a strong need for 

federal legislation in this regard. IID therefore urges the committee and the full 

House to enact this important legislation. Should the subcommittee or the committee require any clarification of these comments or additional information, please 

contact Mr. Brad Luckey at (760) 339-9785. Thank you again for the opportunity 

to submit this testimony. 

[A statement submitted for the record by Herbert R. Guenther, 

Director, Arizona Department of Water Resources, on H.R. 1970, 

follows:] 

Statement of Herbert R. Guenther, Director, Arizona Department of Water 

Resources, Representing the State of Arizona, on H.R. 1970 

Madam Chairwoman and Members of the Subcommittee, 

Good morning and thank you for the opportunity to present the views of the State 

of Arizona on H.R. 1970, the ‘‘Northwestern New Mexico Rural Water Projects Act 

of 2007’’. 

H.R. 1970 represents another important step toward the settlement of long standing water rights claims held by the United States government on behalf of American 

Indian Tribes. The Navajo Nation is the largest Tribe in Arizona measured both in 

terms of population and land area. The Navajo Reservation lies within the boundaries of three states: Arizona, New Mexico and Utah. It also lies within one of the 

most arid regions of the United States and the lack of water development and infrastructure has created a great hardship on the Navajo Nation’s residents, both in 

terms of economic opportunity and general lifestyle. The geography of the Reservation is also complicated in a hydrologic sense because it encompasses land which 

is located in both the Upper and Lower Colorado River Basins. 

H.R. 1970 contains provisions that will greatly aid the portion of the Navajo Reservation within New Mexico and, potentially, within a portion of Arizona. Arizona 

is supportive of the efforts of the State of New Mexico and the Navajo Nation in 

87 

completing a water rights settlement agreement. We are supportive of the provisions of H.R. 1970 that create a funding mechanism to ensure that necessary water 

development projects will be constructed in a timely manner. We are supportive of 

the creative efforts of the New Mexico congressional delegation to ensure that there 

will also be non-Indian beneficiaries who will receive water from the rural water 

projects, and we are generally supportive of the opportunity for the State of New 

Mexico to make full use of its Upper Colorado River Compact entitlement. The Committee should remember that the San Juan River is part of the Colorado River system as defined in the 1922 Colorado River Compact (1922 Compact) approved by 

all seven Colorado River Basin States. In this regard, programs and settlements in 

the San Juan Basin affect the Colorado River as a whole, and vice versa. 

While generally supportive of this settlement, we cannot support H.R. 1970 as it 

has been introduced because we have several concerns about the implications of certain provisions to the existing ‘‘Law of the Colorado River,’’ and about the provisions 

that relate to uses of water from the Northwestern New Mexico Rural Water Supply 

Project (Navajo-Gallup Pipeline Project) within Arizona and in portions of New Mexico located in the Lower Colorado River Basin. Specifically, as introduced, 

H.R. 1970 would violate provisions of the 1922 Compact related to the use of Colorado River water allocated ‘‘exclusively’’ to the Upper Basin to be used in the Lower 

Basin. The bill does not make provisions for the proper accounting of water deliveries under the Compact at Lee Ferry. H.R. 1970 does not specify how the accounting and delivery of water for tribal use in Window Rock, Arizona would be handled. 

H.R. 1970 would also set a precedent in that it would subordinate Arizona’s share 

of water in the Lower Basin of the Colorado River to allow new uses in the Lower 

Basin. 

Arizona and Arizona water users believe there is an opportunity to provide even 

more certainty for the Navajo Nation and the Hopi Tribe by including additional Titles which will settle water rights claims within the Lower Mainstem Colorado 

River and Little Colorado River basins within Arizona. The two Tribes are actively 

participating in ongoing negotiations with governmental and non-governmental interests in those basins. We are optimistic that the parties will complete a water 

rights settlement agreement in a timely manner so that H.R. 1970 can be amended 

to become a more comprehensive solution. Therefore, we believe Congress should not 

take final action on H.R. 1970 until we have a chance to see if Arizona tribal and 

non-Indian parties can achieve this Arizona settlement goal. 

Additionally, an impetus for Arizona (as well as governmental and non-governmental entities in California and Nevada) to negotiate with the Navajo Nation is 

a direct response to the Navajo Nation lawsuit against the Secretary of the Interior 

about operation of programs on the Colorado River, including interim surplus guidelines, interstate water banking, overrun and payback provisions, certain Colorado 

River allocations, and protections of Lakes Mead and Powell. This 2003 U.S. District 

Court lawsuit has been stayed pending negotiations among the parties over Navajo 

Nation Colorado River claims. The lawsuit is a cloud over the programs to conserve 

and deliver Colorado River water to all the Basin States; threatening operations 

that benefit all seven Basin States. It is a logical conclusion that the recent historic 

agreement of the Seven Basin States of the Colorado River on shortage guidelines 

and the coordinated operations of Lakes Mead and Powell would also be challenged. 

Failure of that new agreement could mean years of dispute among the States. Of 

course a successful Arizona water rights settlement would remove this cloud. Therefore, we believe that Congress should not take final action on H.R. 1970 without 

a resolution and dismissal of the Navajo Nation lawsuit concerning the Colorado 

River. 

Title II of H.R. 1970 creates the Reclamation Water Settlements Fund. This Fund 

will be used to construct project features that are required to implement a congressionally authorized settlement agreement. The State of Arizona is supportive of the 

concept for funding that is described in Title II. However, we believe that the funding need is worthy of even greater consideration. Indian water rights settlements 

are being actively negotiated throughout the United States. Funding of these settlement agreements is the single greatest impediment to their successful completion. 

We believe it is time for Congress to address the funding issue on a more comprehensive basis. 

Many of the water rights being contested throughout the West are rights that 

were ‘‘reserved’’ by the United States at the time of the creation of the Indian reservations. In many instances, the United States has failed to fulfill its intent in reserving that water for the Reservations and has left the Tribes without the means 

to create a true tribal homeland. In Arizona and other Western states, many of the 

Tribes have recognized that they will have a better chance to obtain the necessary 

funding which will lead to on-Reservation development by entering into a water 

88 

rights settlement rather than pursuing their claimed rights through lengthy and expensive litigation. In most instances the Tribes have settled for less water than they 

had claimed in Court, but they were provided with the funding mechanism to actually put that water to near-term beneficial use. This trade-off is essential for a Tribe 

to make such a major concession regarding their valuable water rights claims. 

Having a dedicated water rights settlement fund with a dedicated funding source 

will allow not only the Northwestern New Mexico Rural Water Supply Project to be 

built but also many other worthy projects in other states. The Committee should 

look at expanding Title II so that the Reclamation Water Settlements Fund can 

have even greater potential for dedicated revenues. The time frame for those deposits should be at least fifty years. Withdrawals from the Settlements Fund for 

projects other than the Northwestern New Mexico Rural Water Supply Project will 

still be subject to the conditions placed upon them by Congress when future settlements and projects are authorized. We urge the Committee to explore opportunities 

to build on the Settlement Fund concept by contacting the Western Governor’s Association and the Western States Water Council. At a minimum, H.R. 1970 should 

contain provisions for the funding of a Navajo Nation/Hopi Tribe settlement in the 

Lower Basin of the Colorado River if a settlement is authorized by Congress. It 

would greatly benefit the Navajo Nation and Hopi Tribe in their water development 

plans. 

In addition to the need to first resolve the Navajo lawsuit and water rights claims 

in Arizona, Arizona is concerned that H.R. 1970, as currently drafted, conflicts with 

the Law of the River. H.R. 1970 contains several provisions related to deliveries of 

water through the Northwestern New Mexico Rural Water Supply Project to locations in the Lower Colorado River Basin, including the Window Rock area of the 

Navajo Reservation within Arizona. In an attempt to be non-committal about the 

source of water to be used for the Arizona component, the bill’s drafters have created confusing and potentially troubling language. The problem arises because Window Rock, Arizona and Gallup, New Mexico are located in the Lower Basin of the 

Colorado River as defined in the 1922 Compact, but the point of diversion of the 

water from the San Juan River is in the Upper Basin portion of the Colorado River. 

Arizona believes that the terms of the Colorado River Compact prohibit the use of 

an Upper Basin water allocation in the Lower Basin, and vice versa. However, the 

State of Arizona can accept an explicit exception to this prohibition as long as it 

is clear that the use of water across the basin boundary is for a specific project and 

that the project is within the same state that holds the allocation. Arizona does not 

believe that the language of paragraph 303(g), which describes consistency with the 

Upper Colorado River Basin Compact adequately addresses the issue or meets the 

requirements of the Colorado River Compact. We believe that an explicit congressional exception to the provisions of the 1922 Colorado River Compact is required. 

The Arizona Water Settlements Act (AWSA) of 2004 (P.L. 108-451) contains a 

provision reserving for allocation 6,411 acre-feet per year of Central Arizona Project 

(CAP) water supply for use in the Window Rock area of the Navajo Nation pursuant 

to a future congressionally authorized settlement. This provision was agreed to by 

Arizona at the insistence of New Mexico. The terms and conditions for making this 

allocation are enumerated in § 104(a)(1)(B)(ii) of the AWSA. This is the only water 

supply source that Arizona will agree may be utilized for delivery through the 

Northwestern New Mexico Rural Water Supply Project to the Window Rock area. 

The CAP water is a Lower Basin Colorado River entitlement and the water will be 

used in the Lower Basin. We believe this comports with the provisions of the Colorado River Compact. 

However, Arizona is concerned that this source of water for Window Rock may 

be at risk. As the Committee may know, the Navajo Nation opposed the AWSA, and 

they continue to oppose approval of the Gila River Indian Community Settlement 

which is a requirement for bringing the AWSA to a full enforceability stage. If 

AWSA does not become fully enforceable, all the benefits of the AWSA will become 

null and void, including the source of water for Window Rock and those benefits accruing to Gila River water users in New Mexico. Therefore, we believe Congress 

should not take final action on H.R. 1970 without the withdrawal of the Navajo Nation’s opposition to the implementation of the provisions of the AWSA. 

Assuming the CAP water source does prove to be available for Window Rock, the 

diversion of water from an Upper Basin location for use in the Lower Basin is unprecedented. Therefore, H.R. 1970 needs to include specific provisions authorizing 

and clarifying accounting methods and providing the Secretary of the Interior the 

authority to contract for delivery of CAP water from a new diversion point in the 

Upper Basin. Under current law, the Secretary has no authority to contract for delivery of Lower Basin Colorado River water at points of diversion above Lake Mead. 

Attached to this testimony, as part of a letter from the Director of the Department 

89 

of Water Resources to the New Mexico State Engineer, are proposed amendments 

which will correct this and other ‘‘Law of the Colorado River’’ problems Arizona 

finds with the bill as introduced. 

In 1968, Arizona’s rights to develop in the Lower Colorado River Basin were subordinated to pre-1968 rights in the Lower Basin States. H.R. 1970 sets a precedent 

that New Mexico and Utah can increase development in the Lower Basin and further jeopardize Arizona rights. While Arizona does not challenge the right of any 

Upper Basin state to develop their apportioned Upper Basin water for use in the 

Upper Basin, we do want to be treated equitably for use of Upper Basin water in 

Lower Basin development. H.R. 1970 does not address this concern and it sets a 

precedent that is inequitable to the State of Arizona. Specifically, the bill, subordinates Arizona’s Central Arizona Project (CAP) water to new Lower Basin uses developed with an Upper Basin water allocation. This also subordinates the rights of Arizona Indian Tribes that utilize CAP allocations. 

Staff from the Arizona Department of Water Resources has had an ongoing dialogue with the New Mexico State Engineer’s staff for over a year on these issues, 

including those outlined in this testimony. I sent a letter to State Engineer John 

D’Antonio several months ago about these issues. Mr. D’Antonio recently responded 

about Arizona’s suggested bill changes. I have attached copies of both of these letters for the record. I do not agree with Mr. D’Antonio’s response but we continue 

to be open to discussions with our friends in New Mexico to resolve these important 

Law of the River issues. 

The Law of the River has been under attack for decades. For example, in the early 

1980s, a private group made what is known as the Galloway Proposal. It would 

have allowed the transfer of Upper Basin water rights to a California entity without 

regard to the prohibitions of the 1922 Compact. The Seven Basin States were united 

in fighting the proposal and rejecting this notion that the 1922 Compact was irrelevant. It now appears that New Mexico is not as concerned about the precedent that 

would be set if Congress does not address each 1922 Compact issue explicitly. Arizona remains very concerned and will utilize all means available and necessary to 

protect its rights under the Compact and the Law of the River. 

Again, Arizona is willing to meet with Committee staff and the representatives 

of the other six Colorado River Basin States to further discuss our suggested 

changes, and to try to make sure that any proposed amendments are acceptable to 

all affected parties and consistent with the Law of the River. 

In summary, the State of Arizona is supportive of the purposes of H.R. 1970 in 

settling tribal claims and will work collaboratively with the bill’s sponsors and New 

Mexico’s interested parties. We believe that the bill should be expanded to include 

additional water rights settlements in Arizona that are actively being negotiated 

with the Navajo Nation and the Hopi Tribe. We urge the Committee to explore opportunities to expand upon the concepts contained in Title II dealing with the Reclamation Water Settlements Fund so that it can become the mechanism for not only 

the proposed New Mexico Navajo settlement, but potentially many other western 

tribal settlements as well. Before final enactment of H.R. 1970, the Navajo Nation’s 

challenge to the operation of the Colorado River must be resolved, and the Navajo 

Nation’s opposition to the AWSA withdrawn. Finally, we cannot support the bill as 

currently drafted as it relates to the source of the water supply for the Window Rock 

area within Arizona, and certain provisions dealing with the Law of the River. Ambiguity about the water source and the Law of the River implications related to both 

Window Rock water delivery and Gallup water delivery must be clarified. 

Thank you for the opportunity to present the views of the State of Arizona. 

Attachments: 

Director Guenther Letter w/attachments 

State Engineer D’Antonio Letter 

[NOTE: Attachments have been retained in the Committee’s official files.] 

[A statement submitted for the record by Herbert R. Guenther, 

Director, Arizona Department of Water Resources, on H.R. 2515, 

follows:] 

Statement of Herbert R. Guenther, Director of the Arizona Department of 

Water Resources, Representing the State of Arizona, on H.R. 2515 

Madam Chairwoman and Members of the Subcommittee: 

Thank you for the opportunity to provide the following comments in support of 

H.R. 2515, ‘‘The Lower Colorado River Multi-Species Conservation Program (LCR 

90 

MSCP) Act’’. In April 2005, the Secretary signed the Record of Decision (ROD) and 

Program Documents that implemented this comprehensive program to address the 

needs of threatened and endangered species that rely on the Colorado River and adjacent habitat for their continued existence. I, along with representatives of California and Nevada, joined the Secretary in signing the agreement that became the 

ROD. I hope that you will support this important legislation that protects the substantial financial commitment of the non-federal parties to the protection of these 

species. 

There have been other programs and individual efforts to improve the status of 

Lower Colorado River species and habitats. But the LCR MSCP differs from these 

other efforts in some significant ways. First, the Program includes most of the major 

water and power users on the Lower Colorado River. Second, the LCR MSCP is a 

coordinated, large-scale Program covering approximately 100 miles of the Colorado 

River. The opportunity to improve the status of these species to the point of down 

or delisting is greatly enhanced by the geographic scope, stakeholder participation 

and coordinated implementation of the Program. 

Although Program implementation has already begun, federal authorizing legislation remains a final, very important goal. All of the LCR MSCP parties fully support 

implementation of the Program, but federal funding priorities change over time. The 

LCR MSCP is a long-term, 50-year program. Program costs are high in the early 

years when land and water acquisition and costly habitat restoration and enhancement work are underway. The value of this early investment is only secure if the 

federal contribution is assured for the full term of the Program. 

The federal and state parties have agreed to share Program implementation costs totaling $626 million, indexed for inflation over the 50-year term of the Program. 

Costs are split 50 percent federal/50 percent non-federal. H.R. 2515 will affirm this 

funding agreement by providing that the federal share of Program costs will be nonreimbursable, and cap the non-federal costs at the agreed upon amount. The State 

of Arizona has provided legislative authority to collect user fees to meet the Arizona 

portion of state parties funding obligation. 

In addition to securing the Program financial agreements, this legislation includes 

several provisions that affirm the agreements of the federal and non-federal participants. H.R. 2515 provides that subsequent Congressional action will not modify the 

party’s obligations, unless specific to the LCR MSCP. H.R. 2515 will secure the ‘‘no 

surprises’’ and permit revocation policies contained in the Program documents. It 

provides for a limited waiver of sovereign immunity to the extent that the non-federal parties would need to enforce their agreements with the federal government. 

H.R. 2515 also authorizes the Secretary to enter into an agreement with the Lower 

Division States to provide water for implementation of the LCR MSCP. 

The LCR MSCP development and implementation has been an open and public 

process. The Draft Habitat Conservation Plan underwent independent scientific peer 

review, and the final Plan was modified to incorporate recommendations from the 

review panel. Steering Committee meetings are noticed and open to the public, and 

Program documents are available for review. Given the open and public nature of 

the Program, the legislation would exempt the LCR MSCP Steering Committee from 

Federal Advisory Committee Act requirements. 

The important objectives of this Program can only be accomplished if Reclamation 

obtains adequate, long-term funding to implement the Habitat Conservation Plan. 

The LCR MSCP is the best program to address endangered species needs while preserving cities, farms, Indian tribes and power production uses of the Colorado River. 

Arizona supports H.R. 2515, the Lower Colorado River Multi-Species Conservation 

Program Act, and asks for its enactment by Congress. 

Thank you for the opportunity to present Arizona’s view on this important piece 

of legislation. 

[A statement submitted for the record by the Jicarilla Apache 

Nation, on H.R. 1970 follows:] 

Statement submitted for the record by the 

Jicarilla Apache Nation on H.R. 1970 

I. Introduction 

The Jicarilla Apache Nation (‘‘Nation’’) is pleased to submit this testimony supporting and commenting on H.R. 1970, the Northwestern New Mexico Rural Water 

Projects Act. The Jicarilla Apache Nation is a co-sponsor in the 

planning process for the Navajo Gallup Water Supply Project (‘‘Project’’), a vital 

piece of this legislation and the Navajo Nation Water rights settlement package. 

91 

The Nation is a member of the Steering Committee for the Project, and we have 

devoted substantial staff time and resources over the last several years to the planning and environmental compliance process for the Project. 

II. 1992 Jicarilla Apache Tribe Water Rights Settlement Act, the Nation’s 

Contributions in the San Juan River Basin and Role in the Northwest 

New Mexico Rural Water Projects Act 

The Nation’s water rights in the San Juan River Basin are the subject of a 1992 

settlement agreement and the Jicarilla Apache Tribe Water Rights Settlement Act, 

Public Law 102-441, 106 Stat. 2237. We traveled a long road to successfully negotiate our settlement, and we find ourselves on an equally long road to secure the 

implementation of the settlement in order to fully realize its benefits for our people. 

When faced with obstacles to the use of our settled water rights, we have consistently shown leadership in finding solutions that benefit not only our people, but also 

our neighbors in the San Juan River Basin. We have, for example, provided leased 

water supplies to large and small water users, ranging from individual farmers and 

the Elks Lodge to BHP Billiton and PNM. We have also served as a founding member of the San Juan River Recovery Implementation Program to protect endangered 

species while water development is pursued. 

Most recently, we have stepped up to the plate to offer to negotiate a water lease, 

or subcontract, to the City of Gallup to provide their water supply for the NavajoGallup Water Supply Project that would otherwise be unavailable. The water rights 

that would be the subject of a subcontract to be negotiated between the Jicarilla 

Apache Nation and the City of Gallup are already adjudicated to the Nation. Consequently, these water rights are already within the recognized Upper Basin supply 

in New Mexico. It is important for the Subcommittee to understand the Nation’s 

pivotal role in the creative solutions that make the Project, and ultimately the Navajo Nation settlement, achievable. 

We share with the Navajo Nation a common interest in bringing clean, reliable 

water service to grossly underserved areas of our Reservations. The Jicarilla Apache 

people desire to pursue our way of life by making their homes on our reservation 

lands throughout the basin, and not being crowded into increasingly limited space 

in Dulce, New Mexico because of the lack of potable water. To meet this need, we 

have worked with the United States Bureau of Reclamation and the other Project 

Participants to provide for the connection of a water line at Counselor, New Mexico 

from the Cutter Lateral portion of the Project. We are also separately planning construction of the approximately eight-mile portion of the additional water line that 

will be needed from Counselor to our lands at TeePees on New Mexico State Highway 550 in order to deliver this water to our people, without the assistance of appropriations authorized under this bill. The water that would be delivered to us 

through the Project is water already adjudicated to us under the 1992 settlement 

and related Partial Final Decree. We will receive no additional water rights under 

this bill. 

For these reasons, the Jicarilla Apache Nation has a demonstrated commitment 

to and interest in a successful outcome to this legislation and the associated NavajoGallup Water Supply Project. It is imperative that the legislation recognize and support the Nation’s role in the Project. 

In addition to the attached detailed comments that we are providing to the Subcommittee staff, we share the following thoughts in the interest of ensuring that key 

provisions of the legislation are clarified. We look forward to continuing to work 

with members of the Subcommittee and Congress, the State of New Mexico, the 

Navajo Nation, the City of Gallup, and the Administration to refine and implement 

the legislation. 

III. Infrastructure Development on the Jicarilla Apache Reservation—The 

Jicarilla Apache Reservation Rural Water System Act, Title VIII of 

Public Law 107-331 

In addition to the Nation’s participation and role in The Northwestern New Mexico Rural Water Projects Act, we believe it is relevant and imperative that Congress 

and the Administration also meet existing federal statutory obligations in replacing 

the deficient water delivery and wastewater system serving the Jicarilla Apache 

Reservation. As background, in the 1920’s the Federal Government, through the Bureau of Indian Affairs (BIA), initiated construction of a public drinking water and 

wastewater system on the Jicarilla Apache Reservation. Throughout the years, the 

BIA haphazardly extended the system and failed to maintain it, creating severe 

public health threats and community development barriers. Based on generations 

of federal neglect, the water system infrastructure serving the Jicarilla people is in 

severe disrepair and is the source of public health threats to tribal members. 

92 

In 2000, recognizing this looming crisis, Congressman Udall introduced a bill that 

Congress passed which directed the Secretary of the Interior, through the Bureau 

of Reclamation (BOR), to complete a feasibility study on this problem. The study 

recommended extensive repairs and replacement of the infrastructure. In 2002, Congressman Udall introduced another bill, which Congress ultimately passed and 

President Bush signed into law, entitled The Jicarilla Apache Reservation Rural 

Water System Act, Title VIII of Public Law 107-331, which directed the Secretary 

to repair and replace the water system infrastructure on the Jicarilla Reservation, 

and authorized the expenditure of $45 Million to do so. Since the law’s passage 

nearly five years ago, Congress has appropriated $250,000 to fund this project. During this timeframe, the Administration has not requested any funds for our project 

in the President’s annual budget submission to Congress. 

The urgency to address the infrastructure needs on our Reservation has continued so we have been forced to incur substantial debt to expend more than $20 million 

in repairs. Completion of this project is relevant to the legislation at issue now because the continued operation of the defunct infrastructure on our Reservation presents a harmful public health threat not only for our people but for downstream 

users. In addition, the deficiencies in the current infrastructure are causing waste 

of the water resources as there are leakage, seepage and breakdown problems 

through the system. Congress has a responsibility to correct this problem so that 

the water resources throughout the basin are secured and managed in a safe and 

efficient manner for the benefit of all of the stakeholders, including the project beneficiaries and partners in H.R. 1970. 

IV. Specific Comments on H.R. 1970 

With that backdrop, the Jicarilla Apache Nation does not object to the concept of 

a top water bank, provided that its implementation does not adversely affect the 

Nation’s water rights, storage for the Nation, or costs under our contract for water 

from the Navajo Reservoir Supply, and provided also that the beneficiaries of the 

top water bank pay their fair share of construction and operation and maintenance 

costs associated with Navajo Reservoir. 

The provisions concerning shortages should be carefully reconsidered and redrafted in consultation with us to protect the Jicarilla Apache Nation’s water rights, 

including entitlement to delivery in times of shortage, under the Jicarilla Apache 

Tribe Water Rights Settlement Act. We believe and expect that it is not Congress’ 

intent to adversely modify the Nation’s rights under our existing settlement. Indeed, 

the bill appropriately states that unless expressly provided, nothing in it modifies, 

conflicts with, preempts, or otherwise affects the Jicarilla Apache Tribe Water 

Rights Settlement Act (Section 103(1)), page 18 lines 2-4 and page 19 lines 1-2). The 

legislation must be crafted to protect the Nation from suffering a lower priority in 

time of shortage. 

We wish to share a few concerns the Nation has regarding what we view as unclear language referring to cost share provisions in the Bill. The Secretary is directed to determine the share ‘‘based on the ability of the Jicarilla Apache Nation 

to pay the construction costs of the Project facilities that are allocable to the 

Jicarilla Apache Nation,’’ and this share is specified to be at least 25 percent of the 

costs so allocable. 

We have some concerns with how the portion ‘‘allocable’’ to the Nation will be determined. The Nation’s staff have reviewed the items allocated to us as reflected in 

the March 2007 Draft Planning Report and Environmental Impact Statement for 

the Project (‘‘PR-DEIS’’), and if our understanding is correct, the allocation reflected 

in that document is appropriate. The legislation should make clear that a different 

allocation will not be imposed on us. While we are not concerned with the items 

contemplated to be allocated to us, we are concerned that the Bureau of Reclamation’s cost estimates for these items are substantially greater than they should be. 

Notably, the PR-DEIS states that Reclamation is re-estimating costs and anticipates 

providing updated cost estimates through errata sheets to be made available during 

the public comment period on the PRDEIS. 

To our knowledge, however, no such errata sheets have been made available and 

the public comment period ends on June 28, 2007. We are therefore reserving for 

further comment the issue of cost estimates in our comments on the PR-DEIS. To 

protect the continuing voice of the Project Participants in all cost determinations associated with the Project, the legislation should clarify that the construction costs 

reimbursable by the Jicarilla Apache Nation shall be reduced by the amounts that 

the Nation expends from its own funds or non-federal sources on pre-construction 

activities for the Project. The draft legislation does not effectively define the ‘‘ability 

to pay’’ determination. This provision should specify that ‘‘ability to pay’’ will be determined on the basis of the per capita income, median household income, and povVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00096 Fmt 6633 Sfmt 6621 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
93 

erty rate of the population on the Jicarilla Apache Reservation. This specificity will 

ensure that the determination of ‘‘ability to pay’’ reflects the true ability of our 

people to pay for the water supply. 

The requirement that the Nation should pay a minimum percentage of 25 percent 

of the construction costs allocable to the Nation is inappropriate. A proper ability 

to pay determination based on the ability of our population will result in a cost 

share percentage below 25 percent. Indeed, this minimum leaves the Nation unacceptably exposed to the burden of a cost share far greater than 25 percent that has 

no relationship to ability to pay. Notably, the April 2006 study by Dornbusch Associates entitled ‘‘Social Impacts from the Navajo-Gallup Water Supply Project’’ (Appendix D-IV, page 12, to the PR-DEIS) found that the Jicarilla Apache people earn median incomes far below the New Mexico state average. 

This requirement casts a shadow over the negotiating process in providing a 

leased water supply for the City of Gallup. Without fully understanding the entire 

exposure the Nation has in paying for its portion of the Project, it is extremely difficult to proceed with substantive negotiations with Gallup and the Navajo Nation 

in finalizing a secure water supply for the City. We would like to see in the bill 

a provision for establishment of a committee, including a seat for the Jicarilla 

Apache Nation, to set and review Project construction and operation, maintenance 

and replacement budgets and extraordinary expenditures. 

V. Conclusion 

The Jicarilla Apache Nation is pleased to support this historic legislation and to 

have a role as a participant in order to help provide solutions to the pressing water 

challenges in the region, and our participation will provide an avenue to provide 

water to the Southern part of our Reservation which abuts the Navajo lands and 

project area. The Nation has proven time and again to be a responsible steward of 

our lands and resources, and we have a strong track record as a reliable partner 

when working to address the critical water needs in the arid Southwest. Therefore, 

the Nation respectfully requests that the Subcommittee favorably consider our comments and recommendations as set forth herein, and further requests support from 

Congress provide funding for the Jicarilla Apache Reservation Rural Water System 

Act, as completion of this project will enhance and benefit the overall viability and 

success of the purposes and projects set forth in H.R. 1970. 

[NOTE: ‘‘Detailed Comments on H.R. 1970’’ and drawing by Navajo children on 

the need for clean water submitted for the record have been retained in the 

Committee’s official files.] 

[A statement submitted for the record by Evan Jones, Vice 

President, BHP Navajo Coal Company, on H.R. 1970 follows:] 

Statement submitted for the record by Evan Jones, 

Vice President, BHP Navajo Coal Company, on H.R. 1970 

Mr. Chairman and Members of the Committee: 

My name is Evan Jones. I am Vice President of BHP Navajo Coal Company 

(‘‘BNCC’’). BNCC and its affiliate, San Juan Coal Company, own and operate significant coal mines in the San Juan Basin, New Mexico adjacent to the San Juan River. 

One of the mines is located on Navajo Nation lands to the south of the river (‘‘Navajo Mine’’) pursuant to a federal lease and the other is located on the north side 

on state land (‘‘San Juan Mine’’). Navajo Mine supports the generation of power at 

Four Corners Power Plant (‘‘Four Corners’’) which is owned by Arizona Public Service Company (‘‘APS’’), Public Service Company of New Mexico (‘‘PNM’’), the Salt 

River Project, El Paso Energy, Southern California Edison and Tucson Electric 

Power, and operated by APS. The San Juan Mine supports the generation of power 

at the San Juan Generating Station (‘‘SJGS’’) owned by PNM, Tucson Electric 

Power, TriState Generation and Transmission, Southern California Public Power 

Authority, Los Alamos County, Utah Associated Municipal Power Systems, the City 

of Anaheim, MSR Public Power Agency, and the City of Farmington, and operated 

by PNM. Collectively, Four Corners and SJGS generate approximately 3700 

megawatts of power, supplying power to New Mexico, Arizona, Colorado and California. 

BNCC is the owner of a significant water right from the San Juan River and related groundwater rights pursuant to New Mexico State Engineer Permit 2838 

(‘‘Permit 2838’’). Based on its rights under Permit 2838, BNCC provides water to 

its mining operations, supplies the sole source of water to Four Corners (approxiVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00097 Fmt 6633 Sfmt 6621 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
94 

mately 25,000 acre-feet per annum) and approximately one third of the water supply to SJGS (approximately 8,000 acre-feet per annum). 

BNCC supports the efforts of the State, the Navajo Nation and the federal government to settle the claims of the Nation to the waters of the San Juan Basin. Settlement of the Navajo Nation’s claims in an equitable manner will provide a great benefit to all water users in the Basin. In particular settlement of Indian claims, particularly of the magnitude of the Nation’s claims provides the certainty necessary 

to enable continued economic development and investment in the San Juan Basin. 

BNCC believes that H.R. 1970 provides an opportunity to settle the Nation’s 

claims in an equitable fashion that will provide the requisite certainty and opportunities to encourage and stimulate further economic development and support existing investment. The legislation as proposed protects, to a large extent, existing uses 

in the Basin. The legislation includes provisions requiring, under certain conditions, 

use by the Nation of Navajo Reservoir contract water in times of shortage to support 

otherwise senior mainstem irrigation rights, subordination of the majority of the 

Navajo’s claims to senior rights on the mainstem to a more junior Navajo Reservoir 

contract right, and the creation of a ‘‘top water bank’’ in Navajo Reservoir available 

to direct flow users such as BNCC. All of these mechanisms are important pieces 

of the legislation to allow protection of essential existing uses such as BNCC’s supply of water to its mines and to the power plants. 

Most significantly the settlement allows for marketing of the Nation’s water rights 

as proposed to be quantified by the legislation. The availability of the Nation’s 

rights for marketing in the fully appropriated San Juan Basin will allow for supplemental supplies of water to BNCC and others in times of shortage, as well as to 

allow expansion of existing operations and investments in new endeavors within the 

Basin. This opportunity also provides great economic benefit to the Nation. All of 

these factors contribute to a fair and equitable settlement of the Nation’s claims, 

provide certainty to important existing economic concerns and encourage new investment. 

Additionally, the settlement of the Nation’s claims provides a multitude of benefits to the Nation itself including provision of drinking water to more remote parts 

of the Navajo Nation through the Navajo-Gallup Water Supply Project, economic 

benefit and the certainty regarding the settlement of its longstanding claims. 

In summary, BNCC supports the settlement of the Nation’s claims as generally 

proposed in H.R. 1970. All water users in the Basin, not just the Nation, will benefit from the settlement of these claims. 

Thank you for the opportunity to present the views of BHP Navajo Coal Company 

on this important matter. 

[A statement submitted for the record by Jeffrey Kightlinger, 

General Manager, The Metropolitan Water District of Southern 

California, on H.R. 2515 follows:] 

Statement submitted for the record by Jeffrey Kightlinger, General 

Manager, The Metropolitan Water District of Southern California, on 

H.R. 2515 

Thank you for the opportunity to submit written testimony regarding H.R. 2515, 

the Lower Colorado River Multi-Species Conservation Program Act. I serve as the 

General Manager of The Metropolitan Water District of Southern California (Metropolitan), a cooperative of 26 cities and agencies serving water to 18 million people 

in six southern California counties. Metropolitan imports water from the Colorado 

River and northern California to supplement local supplies, and helps its members 

to develop increased water conservation, recycling, storage, and other resource-management programs. As one of the California agencies that use Colorado River water, 

Metropolitan is a participant in the Lower Colorado River Multi-Species Conservation Program (LCR MSCP) and a supporter of H.R. 2515 to authorize this program. 

The LCR MSCP was developed through the cooperation of over fifty federal and 

non-federal agencies in Arizona, California and Nevada to protect endangered and 

threatened sensitive species, and improve environmental conditions for numerous 

other species. The environmental benefits of the program include creating of over 

8,100 acres of riparian, marsh and backwater habitat, rearing and stocking over 1.2 

million endangered fish to bolster local populations, and protecting existing habitat 

in the floodplain from destruction. The program provides scientific research to expand our knowledge of the aquatic and riparian environment on the Lower Colorado 

River. The information gained will be used through adaptive management to ensure 

that the program is effective in benefiting species and their habitat. 

95 

The LCR MSCP will cost a total of $626 million (in 2003 dollars), and be implemented over the course of fifty years. To ensure the flexibility to address changes 

in conditions on the Lower Colorado River, 25% of the funding (nearly $175 million) 

will be used for scientific research, adaptive management, and remedial measures. 

Through careful negotiations over ten years, all the participants have agreed that 

the LCR MSCP will be implemented by the Bureau of Reclamation, with equal 

matching funds provided by agencies from Arizona, California, and Nevada. 

H.R. 2515 provides authorization of appropriations for the federal share of LCR 

MSCP costs and directs the Secretary of the Interior to manage and implement the 

program in accordance with the conservation plan, biological assessment, and biological opinion adopted in accordance with the Endangered Species Act. In addition, 

the bill provides express authority for the Secretary to utilize Colorado River water 

for LCR MSCP purposes, which might otherwise be open to legal challenge. 

Metropolitan and the other non-federal participants are committed to funding onehalf of the LCR MSCP by the terms of the Endangered Species Act (ESA) 

Section 10 incidental take permits issued for the LCR MSCP and the program implementing agreements entered into with the Bureau of Reclamation. The 

Section 10 permit provides regulatory assurances to anyone with an approved conservation plan that, as long as they remain in compliance with the permit terms, 

they will not be asked to commit additional funds, or other resources, to remedy unforeseen circumstances. To ensure that the Section 10 permit provisions and the 

non-federal funding commitments are preserved during the term of the LCR MSCP, 

H.R. 2515 includes provisions in Section 5 that protect against unintended changes 

in the legal status of the program. 

H.R. 2515 provides the commitment of Congress to support the efforts of all the 

LCR MSCP participants, both federal and non-federal agencies. The program is important for the unique environment that the Colorado River creates in the southwestern United States, and for the economies of the States of Arizona, California, 

and Nevada. Metropolitan urges the Subcommittee to approve the bill. 

[A list of documents retained in the Committee’s official files 

follows:] 

• Bureau of Reclamation to Senator Jeff Bingaman, Letter submitted for the record by The Honorable Grace Napolitano 

• Citizens Progressive Alliance, Statement submitted for the 

record on H.R. 1970 

• Department of the Interior to Senator Jeff Bingaman, Letter 

submitted for the record by The Honorable Grace Napolitano 

• Secretary of the Interior Dirk Kempthorne to Governor Huntsman of Utah, Letter submitted for the record by The Honorable 

Grace Napolitano 

• Drawings by Navajo children on the need for fresh water submitted for the record 

• Senator Jeff Bingaman to Secretary of the Interior, Dirk 

Kempthorne, Letter submitted for the record by The Honorable 

Grace Napolitano 

• Senator Jeff Bingaman to Secretary of the Interior, Gale Norton, Letter submitted for the record by The Honorable Grace 

Napolitano 

• Southwestern Water Conservation District, Letter to Chairwoman Napolitano submitted for the record by The Honorable 

John T. Salazar 

[A statement submitted for the record by the San Juan 

Agricultural Water Users Association, Mike Sullivan, Chairman, on 

H.R. 1970 follows:] 

96 

Statement submitted for the record by the San Juan Agricultural Water 

Users Association, Mike Sullivan, Chairman, on House Bill 1970 

Thank you for giving us the opportunity to testify about the proposed legislation 

entitled ‘‘Northwestern New Mexico Rural Water Projects Act.’’ If carried out, this 

legislation would draw water from the San Juan River (one of the largest tributaries 

of the Colorado River) for a pipeline to be built to the Gallup area at a cost of more 

than $1 billion in public funds. The legislation would also affect water rights 

throughout New Mexico and the entire Colorado River system. 

The San Juan Agricultural Water Users Association represents 36 of the 38 irrigation ditches in the San Juan river system. Our members consist of about 15,000 

landowners and their families. The members of our association have water rights 

from the Echo Ditch Decree (1948) and appropriations for approximately 35,000 

acres of irrigated land with a farm delivery of over 110,000 acre-feet of water. We 

are also entitled to divert approximately 1,000 cfs from the rivers of the Basin. Our 

members also have water rights for household, livestock, and other uses, which have 

not yet been quantified by the court. The members of the association have been putting the waters of the San Juan to beneficial use for more than 100 years. Our ancestors, Anglo, Hispanic, and Navajo, were the first ones to divert water from the 

river, long before New Mexico became a state. Since then, our members have maintained our community ditches with their own labor and their own money, through 

ditch assessments, without government subsidies. 

Unfortunately our group cannot afford to send someone to Washington to testify 

on this bill. So we are submitting testimony in writing. Although we are unable to 

be present with you, we ask that you give careful attention to the facts which we 

are outlining, because you will not hear these facts from anyone else. In our absence, our opponents will pooh-pooh these facts and our position, but we respectfully 

request that you and your staffers conduct an independent investigation of the 

points we outline here. Any objective inquiry will demonstrate that there are serious 

questions about this bill, which the proponents are trying to gloss over. 

If this legislation is passed in its present form, it will hurt us and many other 

people in New Mexico. With all due respect, the proposed legislation is so fundamentally flawed that it should not be enacted in its present form. This legislation has 

been pushed by certain special interests as a solution to the problems all along the 

San Juan and Colorado Rivers, but in reality it will only make those problems 

worse. And this legislation as presently written will create new problems for the entire State of New Mexico, which increasingly depends on the San Juan River to supply its water. 

1. THE LEGISLATION ATTEMPTS TO GIVE ONE-THIRD OF NEW 

MEXICO’S RIVER WATER TO A VERY SMALL GROUP—LESS THAN 

40,000 PEOPLE—AT THE EXPENSE OF THE OTHER 1,800,000 CITIZENS 

WHO LIVE IN NEW MEXICO. 

The San Juan River provides 60% of all the surface water in New Mexico. As a 

water source for New Mexico, the San Juan River is twice as big as all the other 

rivers in the state, combined—the Rio Grande, Pecos, the Gila, etc. Cities and tribes 

on the Rio Grande are increasingly depending on water supplied from the San Juan 

via the San Juan-Chama Project, which carries water across the Continental Divide. 

Albuquerque is finishing a $275 million project to use San Juan water, while 

Santa Fe is spending $145 million. Taos, Espanola, Los Alamos, San Juan Pueblo, 

and Belen are also counting on water from the San Juan River. The proposed settlements of Indian water rights for Taos Pueblo and Nambe-Pojoaque (the Aamodt 

case) also are demanding a share of water from the San Juan-Chama Project. But 

these communities may be disappointed, because there is a crisis on the San Juan 

that will soon affect the entire state. 

This legislation is based on the false assumption that there is enough water in 

the Colorado to satisfy the claims of the Navajo tribe and the other tribes and communities that are competing for water from the San Juan. This proposed settlement, 

just like the proposals for Taos and Aamodt (and the unfulfilled settlement with the 

Jicarilla tribe), is based upon wishful thinking, which we can no longer afford in 

an era of global warming. The latest estimate by the Bureau of Reclamation is just 

another in a long series of unrealistic hydrological estimates of the amount of water 

that will be available for all uses in New Mexico. The sheer size of this proposed 

water deal makes it a threat to the rest of the state. If enacted in its present form, 

the statute would give a grossly unfair share to a very small group of people. 

The ostensible purpose of this legislation is to settle a water rights claim for the 

portion of the Navajo reservation that lies within New Mexico. According to the 

2000 census, there are only 44,636 persons who live on the reservation in New MexVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00100 Fmt 6633 Sfmt 6621 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
97 

ico. U.S. Census Bureau, New Mexico—American Indian Area, GCT-PH1, Population, Housing Units, Area, and Density, http//factfinder.census.gov. The census figure includes non-Indians as well as tribal members, so it is almost certain that 

there are fewer than 40,000 tribal members living on reservation land in New Mexico. These are the only persons who would have claims under the so-called ‘‘Winters 

Doctrine.’’ This group amounts to only 2.5% of the total population of New Mexico, 

which is 1,819,046 according to the 2000 census. 

The proposed legislation would give one-third of all the surface water in New 

Mexico to this very small group. The settlement proposes to give the tribe rights 

to 56% of the water in the San Juan River, which accounts for 60% of the state’s 

stream water. So the settlement would allocate 33.6% of the state’s entire supply 

to satisfy the claims of less than 2.5% of the population. 

The legislation would give each tribal member much more river water, per person, 

than the other citizens of New Mexico. If this draft legislation were passed and fully 

implemented, the Navajo tribe would be entitled to a depletion of 348,550 acre-feet 

annually from the San Juan River for the 44,636 tribal members who live on the 

reservation in New Mexico. This works out to a depletion of 7.8 acre-feet per capita 

for a tribal member living on the reservation in New Mexico. On a per person basis, 

this is far more river water than would be left for the rest of the people who live 

in New Mexico. 

According to the best estimates, which are admittedly imperfect, New Mexico has 

about 2.1 million acre-feet annually in stream flow, after meeting its commitments 

to other states. New Mexico Water Quality Control Commission, 2006-2008 State of 

New Mexico Integrated Clean Water Act § 303(d)/§ 305(b) Report at 4. This means 

that there is about 1 acre-foot of river flow available for each person in this state, 

on average. To keep some flow in the rivers, the amount of allowable depletion per 

person would be considerably less than 1 acre-foot. Yet the proposed legislation 

would allocate 7.8 acre-feet of depletion to each Navajo tribal member on the reservation in New Mexico. This is completely unfair to all the rest of the citizens of 

New Mexico. The legislation advances the special interests of a very small group, 

while it damages the long-term future of the entire state. 

We request that your staff and the OSE prepare estimates of the per capita water 

amounts that would be allocated by the proposed settlements in New Mexico, and 

compare them to the per person amounts that would be left to the rest of the population in this state. These analyses will show that this settlement gives an unfair 

amount of water to one very small segment of the state’s population, at the expense 

of the rest of the population. 

As a matter of sound public policy and water planning, New Mexico’s scarce river 

water should be shared equitably by all of the citizens in the state, so that all citizens have a roughly equal per capita share, whether they are tribal members or not. 

We support a fair share for everyone, but this legislation does not do this. 

2. THIS LEGISLATION WILL IMPAIR THE WATER SUPPLIES OF LOCAL 

RESIDENTS WHO ALREADY DEPEND ON THE SAN JUAN RIVER. 

To make room for the proposed Navajo settlement, this legislation squeezes the 

non-Indian users of the San Juan River. It would leave only 16% of the river to the 

local people who have actually used the river for more than a century. Under New 

Mexico’s Constitution and water laws, those who have actually put the water to beneficial use have priority, but the settlement tries to push these rights aside. Here 

is the allocation proposed by the supporters of this bill: 

The situation for local residents is even worse than these figures show. First, the 

tribal claims would be given a retroactive higher priority than many local users, 

even though local people put the water to actual beneficial use, in accordance with 

New Mexico law, while the tribes have never used most of the water allocated to 

them. Second, this legislation gives the Navajo Nation control of the entire river, 

from Navajo Lake at the top, to Shiprock at the bottom. 


37012.001.eps
98 

Third, to make this settlement fit, the OSE is trying to reduce our members’ 

water rights under the 1948 Echo Ditch Decree. In the ongoing San Juan adjudication, the OSE is falsely claiming that our members have abandoned large parts of 

their water rights under the Echo Ditch Decree. To make this legislation look feasible, the projections by the OSE wrongly assume that non-Indians are only using 

about half of their Echo Ditch rights, so that non-Indian uses will be reduced from 

16% to about 8%. To accomplish this, the OSE, the tribes, the United States, and 

the power plants are all litigating against our members, to cut back on our vested 

water rights. 

According to one set of projections by the State Engineer’s staff, the result will 

be a reduction of 40% in water use on the Upper San Juan River, a 36% reduction 

to ditches on the Animas River, and a reduction of 58% to ditches on the La Plata 

River. (The OSE now claims that these projections are no longer operative, because 

the OSE and the BOR keep changing their numbers to make them fit.) These reductions would ruin many water users who have depended on this water, and actually 

used it for more than a century, in order to give the water to new users in the Gallup-Window Rock area, who have never depended upon or used water from the San 

Juan. 

The legislation does not solve the problems associated with the Hogback-Cudei 

Project and the Fruitland-Cambridge Project. These projects draw water at the 

downstream end of the San Juan River in New Mexico, so they provide no return 

flow which can be used in the state. The legislation authorizes the diversion of more 

water than will be in the river on many occasions. 

The Richardson settlement provides for the release of up to 12,000 acre-feet per 

year from Navajo Dam for use by the tribe for irrigation in the Hogback-Shiprock 

area. This provision is inadequate and ineffective: the maximum amount is 12,000 

acre-feet in any one year, but this amount could be depleted in two or three weeks 

under really dry conditions. If the shortage in the river is 500 cfs, the water will 

be gone in about 3 weeks. To have an adequate buffer, there needs to be at least 

a 65-day supply for both Indian and non-Indian users. As proposed in this legislation, the 12,000 acre-feet is only for tribal users, so it does not increase the water 

that can be used by non-Indians. And in dry conditions it may still be necessary 

to place calls on upstream users in order to get this water to the Hogback-Shiprock 

area at the low end of the river. Under this legislation the tribe will effectively control both ends of the river—Navajo Dam at one end and Shiprock at the other. 

3. THIS LEGISLATION CONTINUES A PATTERN OF UNREALISTIC 

PIECEMEAL SETTLEMENTS WITH INDIAN TRIBES, WHICH WILL 

MAKE IT IMPOSSIBLE FOR NEW MEXICO TO FORMULATE A 

COHERENT WATER POLICY. 

Unfortunately, New Mexico does not yet have a coherent and comprehensive master plan for the state’s water resources. For example, the major rivers have not been 

fully adjudicated by the courts. Furthermore, there are 19 Indian pueblos, 3 tribes, 

and 3 Navajo bands in New Mexico. Tribal Map, New Mexico Indian Affairs Department, www.iad.state.nm.us. Most of their water rights have not been settled or adjudicated. Passage of this legislation would make it virtually impossible for the state 

to develop a realistic long-term plan. 

Throughout this process, we have asked some very basic questions, but no one has 

been able (or willing) to answer them. Some of the basic questions are: 

(a) How much stream water does New Mexico have? 

(b) After allowing for interstate obligations, rainfall variations, and climate 

trends, how much river water can be diverted for use within New Mexico? 

(c) How much water can New Mexico consume, while still leaving an adequate 

flow in our rivers? 

Obviously, one cannot devise a water plan for New Mexico without some idea of 

the overall water resources available in the state. But the OSE and the ISC say 

they have no idea of the aggregate water supply and demand. 

At the request of Senator Bingaman, the OSE and the ISC met with us on March 

28, 2007, in Farmington. The purpose of this meeting was to give the state’s technical experts an opportunity to answer these very basic questions. When we asked 

these questions, the OSE and ISC representatives said that they had absolutely no 

idea of the amount of water that might be available for use in New Mexico, not even 

a ballpark estimate. We repeatedly asked them to give us some idea of the water 

resources that might be available to the state, recognizing that such estimates are 

quite imperfect. The OSE/ISC said, repeatedly, that it had no idea whatsoever. The 

ISC representatives said that New Mexico was currently in compliance with its compact obligations, but the ISC had no idea of how much water would be left after 

those obligations were met, not even a range of figures from dry years to wet years. 

99 

1 In our dealings with the OSE and the ISC, we have observed that they are reluctant to provide data and offer their best professional estimates about the proposed Indian settlements, because those purported settlements have been widely touted by Governor Richardson. Governor 

Richardson is running for president, and we believe that the OSE and ISC personnel understand that they must stick closely to the script for the Richardson presidential campaign, for 

fear that their best information and estimates might undermine the campaign. Of course, the 

personnel at OSE and ISC will deny this, but we have observed first hand that they are operating under political orders from candidate Richardson. 2We believe that the OSE and the ISC are under political pressure from the Richardson administration not to make this request, because it would puncture the pretense that there is 

enough water for all the settlements that Governor Richardson has proposed. 3 Candidate Richardson is campaigning hard for the Nevada caucuses in January 2008. As 

part of his campaign, Richardson has pledged to find ways to get Nevada more water from the 

Colorado River. Richardson’s settlement is one way to get more water to Nevada—at New Mexico’s expense. 

We find this hard to believe. If the OSE and the ISC have no idea of the aggregate water resources of the state, then they are not doing their job. The first step 

in any long-term water plan is to use the best available and most current data to 

estimate future water flows, so the state can learn to live within them. Neither the 

state nor the federal government should make any long-term commitments until 

these rudimentary questions have been addressed and answered. 1

The legislation conflicts with other proposed water settlements that depend on 

water from the San Juan River, such as the proposed Aamodt and Taos settlements, 

and the incomplete Jicarilla settlement. There simply is not enough money, or 

water, to carry out all of these settlements proposed by Governor Richardson’s administration. For example, both Aamodt and Taos are conditioned upon the supply 

of more water from the San Juan River via the San Juan-Chama project. And both 

settlements demand unrealistic amounts of funding by the federal government. 

Under the Jicarilla settlement, the federal government is obligated to buy back 

11,000 acre-feet of private water rights beginning in 2000, if requested by the State 

of New Mexico. For unexplained reasons, the state has not yet made this request 2

but this is likely to occur as pressure on the river increases. In short, the federal 

government already has outstanding commitments for the Jicarilla settlement, and 

it should fulfill its existing commitments first. 

The Jicarilla settlement allots 32,000 acre-feet of depletion to the Jicarilla Apache 

Tribe. Jicarilla Apache Tribe Water Rights Settlement Act of 1992, Pub. L. No. 102- 

441. According to the 2000 Census, there are 2,755 persons (tribal and non-tribal) 

living on the Jicarilla reservation. So the Jicarilla settlement allocates an average 

of roughly 11.6 acre-feet to each resident on the reservation, which is more than 10 

times the average amount available to each resident in the rest of the state. Also, 

the Jicarilla reservation has substantial water sources on the reservation itself. This 

settlement is grossly unfair and inequitable to the rest of the state. It illustrates 

the damage that can be done by water settlements that are negotiated in secret by 

special interests and lobbyists, without public scrutiny and without regard to the 

interests of the entire state as a whole. 

When the Jicarilla allocation is added to the 33.6% share proposed by this legislation, the Jicarillas and the Navajos would control more than 40% of New Mexico’s 

entire stream flow. New Mexico is already short on water, and passage of this legislation would allow these two tribes to corner the market of New Mexico’s water. 

Once these two tribes control all this water, they will try to lease it to non-Indian 

users in the downstream states in the Lower Basin. To do this, the tribes merely 

have to let the water flow down the San Juan River to Lake Meade, which is right 

next to Las Vegas. 3

To cover up the fact that the tribe will export New Mexico’s water to other states, 

Governor Richardson and the tribe have agreed to mislead the public. In their settlement agreement, Richardson and the tribe added a provision that the tribe must 

apply to the New Mexico State Engineer for a permit to export water for use in 

other states. This provision is carefully calculated to create the false impression that 

New Mexico can prevent the Navajo tribe from selling New Mexico water to other 

states. Pointing to this provision, Richardson and his appointees have been quick 

to claim that they have protected New Mexico’s interests by preventing the water 

from being exported. For example, in an Op-Ed article in The Albuquerque Journal 

on April 8, 2007, New Mexico State Engineer John D’Antonio claimed that the tribe 

has agreed not to export water without the approval of the OSE and the ISC. See 

attached Exhibit 7. The supporters of this bill repeated this deception in The Albuquerque Journal on June 24, 2007. 

These assertions are false, and the Richardson administration knows that they 

are false. The Navajo tribe has not agreed that it needs permission from the State 

100 

of New Mexico in order to export water. At our meeting on March 28, 2007, we 

asked the OSE and the ISC about this provision. We asked them what would happen if the tribe applies for permission to export water, and the OSE denies them 

a permit. They admitted that, under existing case law, New Mexico cannot prevent 

the tribe from exporting water to another state. And the tribe also takes the position 

that, once the tribe gets the water, the state cannot prohibit the tribe from selling 

or leasing the water to other states. 

In the proposed partial final decree, there is a provision that purports to deal with 

the export of water, but the provision is unintelligible and self-contradictory: it allows the tribe to litigate its right to export water from New Mexico. Furthermore, 

the partial final decree will never be entered, because the pre-conditions laid down 

by the tribe will never be met. 

In other words, Richardson and the tribe have tried to create the illusion that the 

tribe will not export water, but this is legal double-talk. Perhaps the tribe has 

agreed to apply for a permit to export water, but if it does not get one, it will still 

export the water. So the Richardson administration is just blowing smoke to cover 

up the tribe’s plans to sell New Mexico’s water to Lower Basin states—like Nevada. 

If the tribe is allowed to get all this water, it will export most of it. 

Therefore, this bill is not just another public works project. This legislation poses 

a broad question of public policy that must be addressed to the collective wisdom 

of Congress: Is it the policy of Congress to give 40% of a state’s entire water supply 

to a very small group of Native Americans, so that they can sell the water to other 

states? 

4. THE PROPOSED LEGISLATION DAMAGES THE ENVIRONMENT BY 

DRAWING MORE WATER OUT OF THE COLORADO RIVER SYSTEM, 

WHICH IS ALREADY OVERDRAWN. 

This legislation will inflict severe environmental damage on the Colorado River, 

because the projects will draw down the river to pump water far away, where there 

is no return flow to the river, and no recharge to the soils in the river bed. When 

our members irrigate their lands along the river, a lot of the water is returned to 

the river by return flows and recharge. This is not the case with NAPI, or with the 

proposed pipelines. 

The San Juan is one of the biggest tributaries of the Colorado River, which is already overdrawn. When New Mexico signed the Colorado River Compact in 1922, 

it was assumed that the water flow in the Colorado was 16.4 million acre-feet annually. But in 2007, a report from the National Academy of Sciences indicates the flow 

may be only 13 million acre-feet and dropping, due to global warming. Colorado 

River Basin Water Management: Evaluating and Adjusting to Hydroclimatic Variability, Executive Summary, www.nap.edu, attached as Exhibit 1. When the BOR 

and the OSE offer their opinions that there is enough water, their opinions are not 

based on the best and most current scientific data from independent studies. 

From an environmental point of view, this legislation simply repeats the mistakes 

of the Animas - La Plata project. The government told our members that we would 

benefit from that project, but the project has been a disaster. 

5. THE PROPOSED LEGISLATION WILL GENERATE MORE LITIGATION. 

This legislation will not accomplish its objectives, which is to settle the competing 

claims to the San Juan River. Instead, passage of this legislation in its present form 

will simply produce more litigation. The legislation is not a comprehensive settlement, because it has not been agreed to by most of the people who have water rights 

in the San Juan. 

These water rights are now being adjudicated in the San Juan Adjudication lawsuit, which is more than 30 years old. San Juan River Basin Adjudication, State 

of New Mexico, ex rel. The State Engineer v. The United States of America, et al. 

v. The Jicarilla Apache Tribe and the Navajo Nation, Eleventh J.D. Dist., No. D1116-CV-1975-184 (Mar. 12, 1975). If this bill passes, it will just prolong the lawsuit 

for many more years. 

For example, the proposed settlement does not resolve the other claims of the federal government, or of the Ute Mountain tribe. 

It is also our understanding that the legislation does not even settle all of the 

Navajo water claims in New Mexico, such as the claims for the Rajah Band, south 

of Gallup, in the basin of the Little Colorado River. We do not know whether it settles the claim of the To’hajiilee Band, near Albuquerque, in the Rio Grande Basin. 

Moreover, this legislation will not even settle the claims of the Navajo tribe because the purported settlement is a ‘‘conditional settlement.’’ The settlement is not 

effective until future conditions are performed, but it is unlikely that these conditions will be met. Congress has not fully funded the projects that must be completed 

101 

before the settlement becomes final and binding. Nor has the State of New Mexico. 

It is highly unlikely that the federal and state governments will provide the money 

to complete these projects, so the purported settlement will never become final and 

binding on the Navajo tribe. However, in the meantime, the tribe will claim huge 

amounts of water for projects which will never be completed. Then the tribe will attempt to lease this water to non-Indian users off the reservation, a use that is contrary to the Winters line of cases. So this legislation will create a whole new set 

of legal controversies that will have to be litigated, on top of all of the difficult legal 

questions which already exist. 

6. THE PROPOSED SETTLEMENT LEAVES NO WATER RIGHTS FOR THE 

LANDS OF THE NEW MEXICO STATE LAND OFFICE, WHICH 

CONGRESS RESERVED AS AN ENDOWMENT FOR NEW MEXICO’S 

PUBLIC SCHOOLS AND COLLEGES. 

This unsettled issue is currently being litigated in the San Juan River Basin Adjudication. The District Court has ruled against the New Mexico State Land Office, 

and the case is currently being appealed to the New Mexico Court of Appeals. It 

is likely that the case will ultimately wind up in the New Mexico Supreme Court, 

and quite possibly in the United States Supreme Court, because it presents a question of overriding importance to New Mexico, Arizona, and the other Western states. 

The question is this: When Congress reserved sections of land as a permanent endowment for New Mexico’s schools and colleges, did it impliedly reserve the water 

necessary to develop those lands? 

The San Juan Agricultural Water Users Association does not take any position 

on this question. However, it seems inconsistent for the Richardson administration 

and Congress to say that the federal government impliedly reserved water for 

Indian tribes but not for public schools. 

7. THE PROJECTIONS BY BOR AND OSE ARE FAULTY, BECAUSE THEY 

DO NOT ALLOW FOR ANY OTHER RESERVED WATER RIGHTS THAT 

THE UNITED STATES MIGHT CLAIM. 

The projections by the BOR and the OSE are incomplete, because they do not 

make any allowance for any other federal reserved rights. It is certain that the 

United States will assert claims for other reserved water rights for Indian tribes besides the Navajos. It is also possible that the United States will assert reserve 

rights for national forests, especially as global warming increases and the national 

forests dry up. The United States might also claim reserved water rights for other 

purposes. 

Before this legislation proceeds any further, we request this committee to ask the 

following questions: Is the United States going to claim any other reserved rights 

against the Colorado River system? Is the United States going to claim any reserved 

rights for national forests, or national parks, or national monuments, or for any 

other purposes? How much is the United States claiming, or going to claim, on behalf of other Indian tribes in the Colorado basin? 

If the answer to any of these questions is ‘‘yes,’’ then these demands against the 

Colorado River need to be quantified and factored into the projections by the BOR 

and the OSE. These projections do not make adequate allowance for these claims. 

In finding that water supplies are likely to be adequate, the projections incorrectly 

assume that there will be no other claims for reserved water rights. 

This question needs to be asked and answered for the entire Colorado River basin, 

not merely for New Mexico, because a federal reservation of water anywhere along 

the river will affect every other state. A federal reservation of water, when used, 

reduces the amount of flow in the river, so it creates shortages that must be adjusted in some fashion. However, the Colorado River compacts are silent on the 

issue of Indian water rights. 

It makes no sense for one agency of the federal government—the BOR—to opine 

that water supplies will be adequate, without making any allowance for the reserved water rights that will be claimed by other federal agencies. 

8. THE PROPOSED SETTLEMENT IS NOT SUPPORTED BY A PIA STUDY. 

This legislation creates a dangerous precedent, because it does not require a study 

of practicably irrigable acreage (PIA) to substantiate the Navajo water claims. 

Under the Winters line of cases, and as a matter of sound public policy, a tribe cannot be awarded water for irrigation of reservation lands unless it can demonstrate 

that the acreage can be practicably irrigated, that is that irrigation is economically 

viable. 

This legislation sidesteps this requirement, because there has been no study analyzing the amount of acreage on the Navajo reservation in New Mexico that is viable 

for irrigation, and no analysis of the amount of water that would be necessary to 

102 

irrigate those acres. Before this legislation precedes any further, an independent 

PIA must be conducted. 

The New Mexico OSE has stated that the Navajo tribe insisted in its negotiations 

that no PIA would be performed. In fact, the Navajo tribe is trying to avoid a PIA 

because it will show that the reservation includes very little practicably irrigable 

acreage—acreage down in the river bottom around Shiprock. 

From decades of personal experience, the San Juan Agricultural Water Users Association can testify that irrigation is a very hard way to make a living, even on 

the sheltered land down in the river valley. Up on the mesa lands, almost 1,000 

feet above the river, irrigation is completely uneconomic, due to high winds, high 

evaporation rates, and short growing seasons. The experience of Navajo Agricultural 

Products Industries proves that irrigation is not economically viable. NAPI has been 

attempting to grow viable crops by irrigation on the mesa top, using pivot sprinklers 

and water supplied by the Navajo Indian Irrigation Project. Unfortunately, NAPI 

has been a complete financial failure, even though it is supplied with water at no 

cost from Navajo Dam, and even though NAPI is heavily subsidized by the federal 

government and the Navajo tribe. NAPI loses large amounts of money every year. 

The revenues from NAPI do not even cover its annual operating costs, much less 

all of the cost of water and the huge capital costs for Navajo Dam and the Navajo 

irrigation canal. 

9. THE NAVAJO TRIBE HAS ALREADY RECEIVED MORE WATER THAN 

IT IS ENTITLED TO UNDER THE WINTERS LINE OF CASES. 

This legislation proposes to grant an additional 20,780 acre feet of water to the 

Navajo tribe in settlement of their claims under the so-called ‘‘Winters Doctrine.’’ 

However, the Navajo tribe is not entitled to any more water from the San Juan 

River, because it relinquished its claims as part of the creation of the Navajo Indian 

Irrigation Project. 

On May 20, 1960, Paul Jones, the chairman of the Navajo Tribal Council appeared before Congress, accompanied by his Washington attorney. The Navajo 

chairman testified in favor of the Navajo Indian Irrigation Project, which was ultimately enacted in 1962 as part of Public Law 87-483. In his prepared testimony, 

he described the Navajo Indian Irrigation Project and made the following statement: 

All water uses from Navajo Dam would have equal priority. The Navajo 

Tribe has consented to this, and relinquished its right under the Winters 

doctrine for the water necessary to irrigate the Navajo Indian irrigation 

project, in order to provide a practicable plan for comprehensive development of the resources and industrial potential of the San Juan Basin. 

San Juan Reclamation Project and Navajo Indian Irrigation Project: Hearing on 

H.R. 2352, H.R. 2494, and S. 72 Before the House Subcommittee on Irrigation and 

Reclamation of the Committee on Interior and Insular Affairs, 86th Cong. 64 (1960) 

(statement of Paul Jones, Chairman, Navajo Tribal Council), attached as Exhibit 2. 

The next year, the executive secretary of the tribe reiterated to Congress that the 

tribe was accepting the Navajo Indian Irrigation Project in satisfaction of its claims 

for water under the ‘‘Winters Doctrine.’’ San Juan Reclamation Project and Navajo 

Indian Irrigation Project: Hearing on H.R. 2552, H.R. 6541, and S. 107 Before the 

House Subcommittee on Irrigation and Reclamation of the Committee on Interior 

and Insular Affairs, 87th Cong. 33 (1961) (statement of J. Maurice McCabe, Executive Secretary, Navajo Tribal Council), attached as Exhibit 3. 

Therefore, the tribe’s claim for additional water under the ‘‘Winters Doctrine’’ is 

without merit. The tribe accepted an allocation of water for NIIP in satisfaction of 

its water claims, as part of the compromises that were necessary to pass the 1962 

legislation. The tribe’s current claims for water are inconsistent with its agreement 

almost 50 years ago. Instead of demanding more water, the tribe should honor the 

agreement it made to get water from NIIP. 

Furthermore, the Navajo tribe has already received far more water than it would 

be entitled to under the Winters line of cases. The cases hold that tribes are entitled 

to water for irrigation only for practicable irrigated acreage within the boundaries 

of the reservation, that is, for irrigation that is economically viable. The cases also 

hold that tribes are not entitled to water for projects that are economically wasteful. 

In every instance, an analysis of Winters claims necessarily depends upon the 

specific facts for each reservation, including its geography, its climate, and economic 

factors such as distance from major markets. In the case of the Navajo reservation, 

there is very little practicably irrigatable acreage in New Mexico. The original Navajo reservation was established by Congress as a reservation for a pastoral tribe, 

predominantly dependent on sheep herding. Congress did not impliedly reserve 

water from the San Juan River for irrigation of the original Navajo reservation, because anyone familiar with the terrain knows almost none of the reservation’s acreVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00106 Fmt 6633 Sfmt 6621 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
103 

age could have been viably irrigated from the San Juan River. Most of the land is 

too far from the river, too high, too dry, too hot, too cold, and too windy. Within 

the boundaries of the original reservation, there may be a few small plots that are 

suitable for irrigation from local water sources, but otherwise irrigation there is not 

even close to meeting any standards for economic viability. 

Some of the later additions to the reservation included land along the San Juan 

River, and some of this land is economically viable for irrigation. The rest of the 

reservation in New Mexico is not economically viable for irrigation, because it is too 

high and too dry. This fact is demonstrated by the complete failure of the Navajo 

Agricultural Products Industries. The Navajo Indian Irrigation Project was supposed 

to provide ‘‘1,120 family farms for Navajo Indians. It will give a livelihood in related 

service activities to another 2,240 families, thus providing a decent living for at 

least 12,000 Navajo Indians. These figures have been supplied by the Bureau of 

Indian Affairs. Actually, I feel they are excessively conservative.’’ Testimony of Navajo Tribal Chairman Paul Jones on May 20, 1960, Exhibit 2, at 65. 

The federal government built Navajo Dam in the 1950s and 1960s, during the 

happy days when everybody thought that the Colorado River would never run out 

of water. Navajo Dam supplies huge amounts of water to the Navajo Agricultural 

Products Industry (NAPI), which grows crops with sprinkler irrigation on the windy 

high desert, almost 1,000 feet above the river. Much of this water is wasted, because 

NAPI ‘‘has been a huge financial failure,’’ as the Albuquerque Journal reported in 

a 1999 news article. This ‘‘Navajo farm project struggles financially despite millions 

of dollars in government funding.’’ Even though NAPI loses money almost every 

year, the Journal also reported that the Navajo tribe wants to expand this moneylosing operation in order to protect its water claims. ‘‘When more acreage is farmed, 

the project uses more water. If the tribe doesn’t use the water, it is in danger of 

losing its right to it.’’ Since this article was written, NAPI continues to lose money 

for the tribe and taxpayers. And despite all the money and water that has been 

showered on the project, NAPI employs only a few tribal members. 

This is an absurd situation, where the tribe feels it must waste water to protect 

its rights. We believe that the present problem can be solved if the tribe is allowed 

to make better use of the water it now wastes on NAPI. The San Juan Agricultural 

Water Users Association is willing to work with the tribe, the OSE, and Members 

of Congress to come up with a solution that allows the tribe to put this water to 

better use than trying to grow crops on the high mesa. The Navajo Gallup Pipeline 

might be one of these uses. 

Proponents of this legislation contend that this legislation is a fair compromise 

because they claim that the so-called ‘‘Winters Doctrine’’ would otherwise entitle 

New Mexico’s Indian tribes to virtually all of New Mexico’s river water in the San 

Juan River, with a priority over all non-Indian uses. This is a gross misconception 

and exaggeration of the Winters line of cases. 

In 1907, the Supreme Court ruled that when Congress established the Fort 

Belknap Reservation on the Milk River in Montana, Congress impliedly reserved 

some water to fulfill the basic purposes of the reservation, even though Congress 

said nothing about water rights in the act which created the reservation. The Winters decision might be a reasonable judicial extrapolation of congressional intent, for 

a particular reservation, but not for others. 

The proponents of this legislation are asserting an exaggerated and self-serving 

version of the ‘‘Winters Doctrine.’’ The legislation tacitly and wrongly assumes that 

the ‘‘Winters Doctrine’’ would give Indian tribes a priority over almost all non-Indian uses for whatever water the tribes could use for any purpose at any time after 

the reservation was established. The logic of this ‘‘pseudo-Winters’’ doctrine runs as 

follows: 

When Congress established Indian reservations in this area in the 19th century, 

they impliedly reserved all the water that might be used, even though the Indians 

were using little, if any, river water at the time. Even though the water would not 

be used until indefinite times in the future, the priority of all those future uses 

would date back to the establishment of the reservation. 

The problem with this ‘‘pseudo-Winters’’ doctrine is that it gives tribes a retroactive priority over all non-Indian settlers, taking water away from the settlers that 

have actually used and relied upon water from these rivers for more than a century. 

This is a bizarre misinterpretation of the Winters line of cases. This pseudo-Winters 

doctrine is the creation of a small group of lawyers, not Congress. Congress never 

intended such a result. When Congress opened the West to settlement, it intended 

the settlers to have permanent water rights, protected like other property rights. 

When Congress encouraged settlers to move West and develop the land, Congress 

certainly did not intend to confiscate the settlers’ water, without compensation, after 

the settlers had toiled on the land for a century and a half. Yet this is the result 

104 

of the pseudo-Winters doctrine that has been invented by a small group of water 

lawyers acting as advocates for tribal interests. If Congress accepts this misinterpretation of the Winters line of cases by passing this legislation, it would be ratifying the concept that Indian tribes have priority rights to all the waters in the Colorado River system, the Rio Grande, and most other major river systems in the West. 

In short, this misinterpretation of Winters takes away the waters that our Anglo 

and Hispanic predecessors have relied upon since they settled in this region. 

10. THE WATER WHICH THE FEDERAL GOVERNMENT PROVIDES TO 

THE NAVAJO TRIBE CANNOT BE CHARGED TO NEW MEXICO’S 

SHARE UNDER THE COLORADO RIVER COMPACTS. 

The State of New Mexico has no legal obligation to provide water to Indian tribes, 

so it cannot be charged with the water that is supplied to the Navajos. That water 

is the responsibility of the federal government, not the state. So the water provided 

to the tribe in settlement of their water claims must be charged to the federal government, not to New Mexico’s share of the Colorado River under the various compacts. 

The compacts do not deal with Indian water rights, except to say that they are 

the responsibility of the federal government. Article VII of the Colorado River compact states that ‘‘Nothing in this compact shall be construed as affecting the obligations of the United States of America to Indian tribes.’’ Article XIX of the Upper 

Colorado River Basin Compact states that ‘‘Nothing in this compact shall be construed as: (a) affecting the obligations of the United States of America to Indian 

tribes.’’ NMSA 1978, § 72-15-26. 

Furthermore, it is not clear how this legislation relates to the settlement of Navajo water claims in Arizona and Utah. Although this legislation is touted as a settlement, it appears that it does not settle the tribe’s claims for Colorado River water 

in Arizona, where the majority of tribal members live, or in Utah. Under the Colorado River Compact, Arizona is a lower basin state, while Utah and New Mexico 

are upper basin states. If there is to be a settlement of Navajo water claims, it 

should be a comprehensive settlement of all Navajo claims at once. And any settlement must specify how these claims will be treated under the various compacts affecting the Colorado River system. Any comprehensive settlement must also specify 

how the federal government is going to obtain the water it needs to settle its obligations (if any) to Indian tribes. 

11. THE GOVERNOR DOES NOT HAVE THE AUTHORITY TO SIGN AWAY 

WATER THAT BELONGS TO THE PUBLIC, NOT THE STATE. 

Although Governor Richardson has signed a proposed settlement with the Navajo 

tribe, it is doubtful that he has unilateral authority to sign away water that belongs 

to the public, not the State of New Mexico. Article XVI, § 2 of the New Mexico Constitution provides that ‘‘the unappropriated water of every natural stream, perennial 

or torrential, within the state of New Mexico, is hereby declared to belong to the 

public and to be subject to appropriation for beneficial use, in accordance with the 

laws of the state. Priority of appropriation shall give the better right.’’ Congress approved this and the other articles of the New Mexico Constitution as part of the 

process by which New Mexico was admitted to the Union in 1912. 

NMSA 1978, § 72-1-1 says that ‘‘All natural waters flowing in streams...within the 

limits of the state of New Mexico, belong to the public and are subject to appropriation for beneficial use.’’ Therefore, the water in the San Juan belongs to the citizens 

who use it, not to the State of New Mexico. So how could the Governor have the 

authority to sign a binding deal that purports to commit water which the state does 

not own? Governor Richardson’s unilateral attempt to sign away this water to the 

Navajo tribe poses serious questions under the New Mexico Constitution, its statutes, and the takings clause of the Fifth Amendment. 

12. THE PROPOSED PIPELINE WILL NOT SOLVE THE WATER PROBLEMS ON THE NAVAJO RESERVATION. 

The Gallup pipeline would cost more than $1.5 billion to complete, in current dollars without cost overruns, which are inevitable. As a preliminary step, Congress 

and the State of New Mexico should commission an independent engineering and 

cost study by experts who have no vested interest in the project, so that the federal 

and state governments do not start a project which they cannot finish at a reasonable cost. Without an independent analysis, this project resembles a typical military 

procurement project: the project boosters are trying to get Congress to buy into the 

project by using low-ball cost estimates. 

Even if the Gallup pipeline is built, it will not supply drinking water to homes 

on the Navajo reservation. The legislation authorizes, but does not fund, a main 

trunk pipeline to Gallup and Window Rock. The legislation does not include the disVerDate Aug 31 2005 16:07 Aug 15, 2008 Jkt 098700 PO 00000 Frm 00108 Fmt 6633 Sfmt 6621 L:\DOCS\37012.TXT Hresour1 PsN: KATHY
105 

tribution pipelines that are necessary to supply water to homes on the reservation, 

so many tribal members will still be forced to haul water to their homes even if the 

main pipeline is built. A network of pipes to distribute water from the trunk line 

is likely to be more expensive than the main pipeline itself. For the amount of 

money that would be spent building the main trunk line, Congress could deliver 

water to more households and communities across the reservation by funding local 

projects to supply and conserve water. These smaller scale projects would be based 

on the development of local ground and surface water, with strict conservation 

measures. This alternative approach has several major advantages: 

A. It actually delivers water to the households and communities that need it 

most. 

B. It is cheaper and much more cost-effective. 

C. It avoids drawing down the Colorado River. 

D. It encourages conservation rather than consumption. 

The San Juan Agricultural Water Users Association could support legislation that 

provides an adequate supply of drinking water to the reservation and to the Gallup 

area, so long as it does not draw more water from the San Juan, which is already 

over-committed. This can be accomplished by a combination of local projects, conservation measures, and perhaps a pipeline that uses some of the water that currently goes to NAPI, where it is wasted. 

CONCLUSION 

In the 1950s, many of our families were removed from their homes and ranches 

to make way for Navajo Dam and Navajo Lake. All of us were told that the project 

would protect us from floods, and this has turned out to be true. 

But we were also told that the dam would provide us with water in dry times. 

This has turned out to be untrue. 

We were told that there was plenty of water in the Colorado for everyone. This 

has turned out to be untrue. 

We were told that the project would satisfy the tribe’s water claims. This has 

turned out to be untrue. 

[NOTE: The attachments referenced above have been retained in the Committee’s 

official files.] 

Æ