Ridenbaugh Press/Water Rights

The Arizona Water Settlements Act and the Arizona Water Settlement Agreement provided for the reallocation of 96,295 acre-feet of relinquished Non-Indian Agricultural Priority Central Arizona Project water. This water was reallocated to the Arizona Department of Water Resources (Department) and is held in trust for further allocation by the Secretary of the Interior. The Director of the Department shall submit a recommendation to the Secretary of the Interior for the allocation of this water to specified municipal and industrial water users.

The Department drafted a proposed process to reallocate this 96,295 acre-feet of NIA Priority CAP water in periodic intervals and evaluation criteria to recommend reallocation of a portion of this water by 2014. The Central Arizona Water Conservation District developed proposed pricing components for this reallocation. The U.S. Bureau of Reclamation (Reclamation) drafted a review process for receiving the Department’s recommendation for the allocation. A public meeting was held on October 2, 2012 at the Department offices to present the background of this reallocation and these proposed components.

The Department accepted questions and comments regarding the proposed reallocation during the meeting as well as through the comment period which ended on November 9, 2012.

Reclamation issued a Finding of No Significant Impact following the December 2011 completion of an environmental assessment on the City of Surprise’s proposed plan to expand its existing recharge system utilizing reclaimed water.

Reclamation announced a $1 million WaterSMART Water and Energy Efficiency Grant for the City of Surprise in May 2011. Through this grant, the City intends to construct and operate 15 additional vadose zone wells, increasing the amount of reclaimed water that can be recharged annually by about 6,049 acre-feet annually (AFA). This $4,517,600 project would enable the City to recharge up to a total maximum of 8,049 AFA of reclaimed water that would be stored underground for later City use.

Established in February 2010 by Secretary Salazar, the WaterSMART program facilitates the work of all bureaus of the Department of the Interior to pursue a sustainable water supply for the nation. It establishes a framework to provide federal leadership and assistance on the efficient use of water, integrating water and energy policies to support the sustainable use of all natural resources, and coordinating the water conservation activities of the various Interior offices. The Bureau of Reclamation plays a leading role in the WaterSMART program as the Department’s water management agency.

The FONSI and EA are available on Reclamation’s Phoenix Area Office website, www.usbr.gov/lc/phoenix. A hard copy or CD version is available by calling the Environmental Resource Management Division at (623) 773-6251, or by e-mailing jharagara@usbr.gov.

The Bureau of Reclamation has issued a draft environmental assessment on its proposed approval of an exchange agreement between the Fort McDowell Yavapai Nation and the Salt River Project Agricultural Improvement and Power District/Salt River Valley Water Users’ Association (collectively known as SRP).

A 1994 settlement agreement entitles the Nation to up to 13,933 acre-feet annually of Central Arizona Project water. The CAP water can only be delivered via an exchange which allows the Nation to divert water from the Verde River. SRP will then receive an equivalent amount of the Nation’s CAP water entitlement at its CAP/SRP Interconnection Facility. Because this is a federal action, compliance with the National Environmental Policy Act is required. Reclamation is required to approve this agreement on behalf of the Secretary of the Interior.

The draft environmental assessment is posted for public review on Reclamation’s Phoenix Area Office website, www.usbr.gov/lc/phoenix. A hard copy or CD version of the document is available by calling the Environmental Resource Management Division at (623) 773-6251, or by e-mailing jharagara@usbr.gov.

Senator Jon Kyl on November 14 joined Secretary of the Interior Ken Salazar, Navajo Nation President Ben Shelly, and Hopi Chairman LeRoy Shingoitewa at the Department of the Interior to discuss the path forward with regard to resolving the tribes’ water rights claims to the Little Colorado River. Senator Kyl released the following statement on the current state of negotiations:

“I commend the Navajo and Hopi leaders for their continued efforts to resolve important water-rights issues. An opportunity exists to address the significant needs of the Navajo and Hopi people by working on a collaborative solution that would bring much-needed drinking water infrastructure to their reservations. I encourage the tribal leaders to work with each other, the U.S. government, and the state parties to find a path forward. While there are no easy answers, I believe that the needs of the Navajo and Hopi people are far too great for the parties to simply wait for the state courts to issue a paper water decree.”

The parties were also joined by Deputy Secretary of the Interior David J. Hayes, Assistant Secretary-Indian Affairs Kevin Washburn, Navajo Nation Speaker Johnny Naize, and several members of the Hopi Tribal Council and the Navajo Nation Council.

The comment period has been extended through November 9 on a major water settlement agreement in Arizona.

The Arizona Water Settlements Act and the Arizona Water Settlement Agreement provided for the reallocation of 96,295 acre-feet of relinquished Non-Indian Agricultural Priority Central Arizona Project water. This water was reallocated to the Arizona Department of Water Resources and is held in trust for further allocation by the Secretary of the Interior. The Director of the Department shall submit a recommendation to the Secretary of the Interior for the allocation of this water to specified municipal and industrial water users.

The Department has drafted a proposed process to reallocate this 96,295 acre-feet of NIA Priority CAP water in periodic intervals, and evaluation criteria to recommend reallocation of 75,782 acre-feet of this water by 2014. The Central Arizona Water Conservation District (CAWCD) has developed proposed pricing components for this reallocation. The U.S. Bureau of Reclamation has drafted a review process for receiving the Department’s recommendation for the allocation.

The proposed process, evaluation criteria, pricing components, and review process of the recommended allocation were presentated during a public meeting on October 2.

The Gila River Indian Community has struggled for nearly 80 years to restore its water rights, an effort that finally ended in 2004 when Congress passed the Arizona Water Settlements Act. Under that legislation the Community is entitled to up to 311,800 acre-feet of Central Arizona Project water per year, making it the largest single customer of CAP water in Arizona.

The CAP water is key to restoring the Community’s self-sufficient agricultural economy but the Community’s irrigation infrastructure will not be fully built out until 2029, and in the interim, it is not physically able to use its full CAP entitlement. The Community wants to put this water to use by figuring out a way to restore wetlands and the riparian habitat that is so important to the culture of Akimel O’otham and Pee Posh.

That’s where SRP comes in. In order to achieve its goals and perhaps realize its dream, the Community turned to SRP for its expertise in the utilization of water resources — in particular, expertise in riparian recharge and water storage. That expertise will help the Community re-create at least a part of the Gila River, while at the same time create long-term storage credits that it can use and sell, if appropriate, to help finance future riparian recharge activities.

“The Community’s motto is ‘where water flows, life grows’ and it captures the importance of the Gila River to the Community not only in terms of agricultural development, but also its cultural and religious significance,” said Gregory Mendoza, the Community’s Governor. “For the Akimel O’otham, which means the ‘River People,’ the Salt and Gila Rivers were part of our identity, so when the river was diverted, we were not only harmed economically but culturally and religiously as well.” Governor Mendoza believes that this partnership with SRP will not only help achieve the Community’s goals but marks a new chapter in Arizona’s water history. “We used to be on the opposite sides of the table when it came to water, but now we are partners,” said Governor Mendoza.

This sentiment is echoed by SRP. “Our work with the Gila River Community to help develop the Arizona Water Settlements Act laid the groundwork for this important partnership,” said John Sullivan, SRP’s Chief Resources Executive. “Through that process, we came to better understand the importance to the Community of restoring the Gila River. The partnership will not only help the Community achieve its objectives, it will make available vital water supplies for growing Valley communities and for SRP water users during periods of severe drought.”

The agreement with SRP provides needed expertise in exchange for access to a portion of the Community’s water supply for certain projects and in short supply years. The Community will use some of its long-term storage credits itself and will sell a certain proportion of them to other entities to create a stream of revenue for the development, operation and maintenance of the riparian recharge areas, a portion of the OM&R on the Community’s on-reservation canal system, and other water-related activities.

Arizona will also receive significant benefits from the Community’s agreement with SRP. In response to the growing need for renewable water supplies in central Arizona, the two parties intend to make the long-term storage credits available to a variety of current and prospective water users to provide those users access to renewable water supplies.

Under this agreement, the Community also intends to explore using its unique situation of being in both the Phoenix and Pinal AMAs (Active Management Areas) to create opportunities for water providers and other water users to more effectively manage the central Arizona region’s water resources. These opportunities will further assist the state in meeting its water-management goals.

The Water Resources Development Commission has released its Supplemental Report containing recommendations that will assist Arizonans in meeting future water demands.

In 2010, the Arizona State Legislature passed House Bill 2661 that established the WRDC which was given the task of assessing Arizona’s demand for water, and the supplies available to meet those demands for the next 25, 50, and 100 years.

In October 2011, the WRDC completed the legislated task of analyzing Arizona’s water needs for the next 100 years. The WRDC concluded that without proactive and localized water management strategies future water supply and demand imbalances may exist throughout the state, and, therefore, there is a need to acquire additional water supplies and develop infrastructure to access new and existing unused water supplies. The WRDC continued discussions through August of 2012 to develop recommendations aimed at providing local communities with the tools necessary to reduce or prevent future water supply and demand imbalances. The WRDC Supplemental Report is a result of these discussions.

In its Report, the WRDC recommends the formation of Regional Water Augmentation Authorities to assist communities in developing future water supplies and infrastructure. Membership in the Regional Water Augmentation Authorities is proposed to be voluntary and may include Arizona cities, towns, private water utilities, other statutorily defined water providers, private entities, counties and State, Tribal and Federal entities. The WRDC also identified current funding options available to the Regional Water Augmentation Authorities to meet the needs of their members.

The WRDC reports, along with the data contained in five committee reports will continue to be updated and evaluated by the Arizona Department of Water Resources and will serve as a foundation for continued and proactive water management planning for communities throughout the State.

The Water Resources Development Commission Reports can be found at: http://www.azwater.gov/AzDWR/WaterManagement/WRDC_HB2661/Meetings_Schedule.htm

The long-running (38-year) adjudication of the Gila River has led some parties to look at some way the reach separate individual settlements over water rights that would be considered binding, to be put in place sooner rather than wait until the end – which still may be distant – of the adjudication.

Those efforts seemed to fall apart in September.

The advocates included a couple of irrigation water companies in the Verde Valley and the Salt River Project, which provide water to the area; they had settlements in mind for the Verde and Eureka ditch areas. Those efforts were prospectively central, and might have led to settlements elsewhere.

But the Verde (AZ) Independent reported on September 29 that “during a hearing on Monday, Sept. 17, the parties hoping to establish the procedure withdrew their request. That included Salt River Project and attorneys representing Verde Valley water rights as well as water rights along the Gila River and in the Little Colorado River watershed. … The proposed procedure would have allowed ditch companies and other parties to the adjudication to settle their claims in a manner similar to the way Indian tribal claims are currently settled.”

Several other parties objected, however, including the Yavapai-Apache Nation.

In a major water ruling on September 13, the Arizona Supreme Court said that the state has no priority “reserved” right to water on lands given it in trust from the state. The decision was considered a major setback for state government water right efforts.

The case was launched by various water right claimants suggesting that the state had overreached in its assessment of what water it controls.

In an appeal from the Gila River Adjudication, the court said “The State of Arizona filed an interlocutory appeal from an order issued in the general stream adjudications of the Gila River System and Source and the Little Colorado River System and Source. At issue is whether federal water rights were impliedly reserved on lands granted by the United States government to the State of Arizona to support education and other public institutions (“State Trust Lands”). We accepted review and now affirm the superior court’s ruling that there are no implied federal reserved water rights for State Trust Lands.”

The court’s analysis ranged back to the 1787 Northwest Ordinance, which donated land from federal control to states for some educational and other purposes.

It also focused to some degree on the 1910 enabling act which determined conditions under which Arizona and New Mexico could be admitted as states.

The court noted the lands receive from federal control had to be held in trust: “[A]ll lands hereby granted, including those which, having been heretofore granted to the said Territory, are hereby expressly transferred and confirmed to the said State, shall be by the said State held in trust, to be disposed of in whole or in part only in manner as herein provided and for the several objects specified in the respective granting and confirmatory provisions, and that the natural products and money proceeds of any of said lands shall be subject to the same trusts as the lands producing the same.” When it became a state, Arizona acceded to the conditions.

The court noted, “The state currently manages more than 9.2 million
acres of State Trust Lands, with approximately 1.4 million acres
in the Little Colorado River Basin and approximately 5.1 million
acres in the Gila River Basin. Although adjudication of claims
for waters in those two river systems continues, it is well
known that “the amount of surface water available [in Arizona]
is insufficient to satisfy all needs.””

After the state was challenged on the trust right, the court noted “The State moved for partial summary judgment in the Little Colorado and Gila River adjudications to recognize federal reserved water rights for State Trust Lands. After briefing and oral argument, the special master concluded that federal reserved water rights do not apply to such lands. He submitted a report to the superior court, which adopted the master’s findings and conclusions that support the court’s ruling that the reserved water rights doctrine is inapplicable to State Trust Lands. The court therefore denied the State’s motion and granted the other claimants’ cross-motions on that ground. The State sought interlocutory review. We granted
review on this issue of statewide importance to determine whether Congress impliedly reserved water rights on public land granted in trust to the state. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and the Special Procedural Orders for Interlocutory Appeals and Certifications.”

The court reviewed the concept of reserved water rights:

“Generally, water rights must be obtained under state law, even on federal lands. Cal. Or. Power Co. v. Beaver Portland Cement Co. (1935). In Arizona, groundwater is regulated by the Arizona Department of Water Resources and governed by the doctrine of reasonable use. A.R.S. § 45-451 et seq. (2012). The right to use surface water and sub-flow is governed by the doctrine of prior appropriation, §§ 45-141, -251(7), meaning the first to divert water and put it to beneficial use has priority against later diverters, § 45-151. See Ariz. Const. art. 17; In re the Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source (2000).

“Under certain circumstances, however, the federal government can reserve water rights on its lands, and those rights have priority by operation of federal law. In re the Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source (Gila III) (1999); N.M. Comm’r (citing Navajo Dev. Co. v. Sanderson (Colo. 1982)). Federal reserved water right holders can claim a priority date based on the establishment of a federal reservation regardless of whether the claimed water was actually put to use on that date.”

It reviewed the U.S. Supreme Court’s take on the reach of federal reserved water rights: “The Supreme Court further defined the parameters of the reserved water rights doctrine in Cappaert, stating that “when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose,” it impliedly reserves appurtenant water “to the extent needed to accomplish the purpose of the reservation.” In New Mexico, the Supreme Court clarified that federal reserved water rights do not extend to a reservation’s secondary purposes.”

Linking state purposes to federal and including them under the federal umbrella takes the idea of reservation too far, the court said:

“The State argues that the Trust Lands were granted to fund congressionally identified institutions, and they therefore were reserved for a federal purpose, shown by the fact that Congress established a trust with federal enforcement power. We are
not persuaded.

“Support of the common schools and other specified institutions undoubtedly serves the public interest. It is not,
however, a federal purpose. … Although the Enabling Act imposes federally enforceable trust obligations on the state, this retained
oversight does not authorize the federal government to make policy decisions on how the beneficiary institutions are administered. Indeed, “the schools, colleges, and universities provided for in this Act shall forever remain under the exclusive control of [Arizona].”

“Nor does the retained oversight indicate the federal government’s continued ownership of the trust lands or its authority to make policy decisions on how the lands are used. … The Enabling Act provides only a limited federal power to intercede in the event State Trust Lands are abused.

“Under a narrow exception to the state’s autonomy regarding use of State Trust Land, when a section-in-place grant is located in a national forest reserve, the “granted sections shall be administered as a part of [the] forest,” and the federal treasury will appropriate a proportionate share of the gross proceeds of the national forests within Arizona. That exception highlights that when the purpose of non-Indian reserved land is federal, the United States government retains control over the reservation’s management. Again, that is not the case with respect to State Trust Lands.”

Bureau of Reclamation Commissioner Michael L. Connor today announced Terry Fulp has been selected Lower Colorado Regional Director. Fulp has served as Lower Colorado Deputy Regional Director since March 2008.

“Terry Fulp has the depth of knowledge and breadth of experience with the complex and challenging issues involved on the Colorado River to be an effective leader of this major Reclamation region,” Commissioner Connor said today. “The collaborative relationships he has built during his tenure as Deputy Regional Director have prepared him to step into the responsibilities of this position.”

Fulp began his Reclamation career in 1989 and has served his entire tenure in the Lower Colorado Region. During that time, he has been actively involved in Colorado River operations and management issues, working closely with other federal and state agencies and stakeholders. He served as Area Manager of the Boulder Canyon Operations Office, where he led the successful basin-wide effort to develop additional operational guidelines for Lake Powell and Lake Mead to address the impacts of long-term drought in the basin.

Fulp holds a doctorate in mathematical and computer sciences from the Colorado School of Mines, two master’s degrees, one in civil engineering from the University of Colorado and one in geophysics from Stanford University and a bachelor’s in earth sciences from the University of Tulsa.

Fulp has received numerous awards during his career, including the Department of the Interior’s Superior Service Award. In 2005, he was awarded the Virgil M. Kauffman Gold Medal from the Society of Exploration Geophysicists for his outstanding contribution to the advancement of geophysical exploration.

As Regional Director, Fulp will oversee all Reclamation operations in southern Nevada, southern California, most of Arizona and portions of Utah and New Mexico. On behalf of the Secretary of the Interior, the Lower Colorado Region serves as Water Master of the 700 miles of lower Colorado River from a point below Lees Ferry in northern Arizona to the Mexican border. The region also oversees the operation and management of Hoover, Davis and Parker Dams in addition to numerous other facilities.