Pressure on to approve water deal

By Alistair Mountz
Special to the Times

TUBA CITY, April 12, 2012

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M oney is tight. Time is short. The pressure is on.

Arizona senators Jon Kyl and John McCain requested a meeting with Navajo leadership on April 5 in an attempt to expedite approval of the Navajo Hopi Little Colorado River Water Rights Settlement Agreement.

According to an April 5 press release from President Ben Shelly's office, during the meeting in Tuba City Kyl emphasized the importance of pushing the bill through Congress and also told Navajo leadership that time is limited, so they'll need to make up their minds about the settlement agreement soon.


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Proposed Settlement

"There's two things that you have to be cognizant of," said Delegate Walter Phelps (Cameron/Coalmine Mesa/Leupp/Tolani Lake/Tsédii To'ii) when asked about a timeline for approving the agreement. "This is Kyl's last term. He'll be leaving in January 2013, that's like nine months from now.

"The other thing is how long it takes for the legislation to move through Congress. My thinking is that movement has to begin probably at least by June at that level," Phelps said.

"... (T)he Navajo Council and the Hopi Tribal Council, they will have to make their decisions by May, sometime in May, and that's to coincide with the process that has to occur at the congressional level and for Kyl to champion it," he said.

Phelps has scheduled public forums in Coal Mine and Cameron, and has invited Jason Johns of the Navajo Nation's Department of Water Resources to help explain exactly what's involved in the water projects that are the settlement's chief benefit for the tribes.

Neither Kyl and McCain, nor their spokespeople, responded to calls requesting comment for this story.

Publicly, Shelly has been quiet about the issue but after the closed-door meeting in Tuba City he told the crowd outside, "What needs to happen is this agreement must be agreed to by the Navajo people.

"We're gonna do town hall meetings, seven town hall meetings," he said. "You are to say yes or no. Your concern will be heard. Then it will go to the Navajo Nation Council. They'll need to approve it. If they don't approve it, 2109 won't go."

2109 is the number of the Senate bill that would ratify the agreement.

The strategy to work with Kyl, a former water lawyer for the Salt River Project, on S. 2109 was explained by Delegate Dwight Witherspoon (Forest Lake/Hardrock/Kéts'éélé/Piñon/Whippoorwill) and Navajo Nation water rights attorney Stanley Pollack.

"We need a champion to move the agreement forward," said Witherspoon, who took part in the Tuba City meeting.

Pollack was not at the meeting, but was on the radio show "Native America Calling" the same day discussing the issue.

"We wanted to do this on Senator Kyl's watch because he's an influential senator," Pollack said. "He was instrumental in each of the Indian water rights settlements in Arizona. The idea here is that it takes a long time to get a bill through Congress and it is the (settlement agreement) parties' hope that this bill can be approved by Congress in this session, in this particular Congress, before Senator Kyl retires."

While Council delegates are aware of the tight timeline, some have voiced doubts about the current agreement and the speed with which Shelly is pushing for it.

Witherspoon said he asked Kyl and McCain about sections 13 and 14 of the agreement, which state that the water projects would not move forward until the federal and tribal governments approve lease extensions for the Navajo Generating Station near Page, Ariz., and its coal supplier, Peabody Western Coal Co.

Making the water projects dependent on these unrelated lease approvals has generated controversy, and Witherspoon asked whether the agreement could be modified to remove or change these parts.

The senators "were open to it," Witherspoon said, but Kyl cautioned those in the meeting that too many amendments would delay the agreement from becoming law, and possibly stop it all together. Kyl represented SRP, which operates the power plant, before entering Congress.

Soon after the meeting Witherspoon was already debating a course of action regarding amendments.

"It's plausible," he said, "that we can get rid of Peabody separately, but all the parties to the agreement have to agree."

Eliminating the power plant lease would be more complicated, he said.

"We could propose an amendment to take NGS out, but at the same time we have to realize we're saying 'no' to the Gallup water line project. We'd have to make a decision about that."

Pollack addressed the NGS lease, and its connection to the Navajo-Gallup pipeline, in a phone interview from his home in Ann Arbor, Mich.

"The agreement gives the Navajo Nation the option to either extend the NGS lease, or not. If the lease is extended then the Navajo Nation can obtain Colorado River water for delivery in the Navajo-Gallup pipeline even though this is not a Colorado River settlement," he said.

The upstream delivery is critical in order to ensure the pipeline can serve Gallup and the Window Rock area, where a majority of the prospective beneficiaries live.

Under a separate law, San Juan River water can only be used within the river basin. Both Gallup and Window Rock are in the Rio Puerco watershed.

"If the Navajo Nation chooses not to extend the NGS agreements we simply do not get that Colorado River water," Pollack stated. "But that does not effect the settlement. The Navajo Nation and Hopi Tribe would still have the benefits of the settlement."

The benefits Pollack is referring to are municipal water systems to benefit two Navajo communities, Dilkon and Ganado, and the Hopi villages. The price tag of these projects turns out to be another reason to speed up the approval of the settlement agreement.

S. 2109 authorizes $199 million, but the actual cost would rise with time.

According to delegates at the meeting, Kyl said he is "working on the funding" for the proposed groundwater delivery projects, but warned that the money might not be available if there are delays in approving the settlement agreement.

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