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Settlement Maximizes Navajo Nation Water Rights

A column by Chris Clark-Deschene about Navajo Water Rights.

Ya’a’teeh doo ahe’hee shi Ke’ adoo shi Dine’e’.

Water is sacred. No doubt. So are our people and our future. On the current issue of S.2109, I support the Navajo-Hopi Little Colorado River Water Rights Settlement for a number of reasons. As a member of the Nation, a former elected official representing the Nation in the Arizona legislature, and an attorney working with natural resources, I have seen throughout our Nation a severe need for water infrastructure. The settlement agreement offers our Nation an opportunity to build and secure water rights for our current needs and our future growth.

While the Navajo Nation is currently considering whether to approve a settlement of the Navajo Nation’s water rights claims in the Little Colorado River Adjudication, I urge our People to look at the issue from all sides. To date, opposing letters to the Editor I believe, have misrepresented the terms of the settlement and done a great disservice to those who seek to understand the legal basis of the settlement. I would encourage us all to thoroughly review this settlement and understand the terms before letting others decide for us. Based on my review of the issue, I support the LCR Settlement for the following reasons:

•First, the LCR Settlement does not waive Main Stem Colorado River Water Rights. Once the Nation secures water rights in the LCR settlement agreement to meet its current and future needs, the Nation must waive any additional claims to water it might have in the LCR Adjudication. The waivers of claims in the LCR settlement agreement address only the Nation’s LCR claims – Navajo Nation claims to the mainstem of the Colorado River in both the Upper and Lower Basin are preserved for another day. This is by far the greatest protection I want for our Nation.

•Second, as the Water Rights Commission has explained at Chapter meetings, public forums, and in the press, the Navajo Nation faces a decision – the Nation can continue with litigation in state court where the outcome is likely decades away and the result uncertain, OR the Nation can settle its claims now, protect its water rights from being taken and developed by outsiders, and start putting water to use with water delivery projects guaranteed in the settlement. The basic question here is: Does the Nation trust the state courts? If not, then why litigate?

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•Third, the settlement agreement recognizes the unlimited right of the Navajo Nation to use the Coconino Aquifer – a huge groundwater supply that underlies the entire Navajo reservation. The settlement agreement recognizes the sovereign rights of the Navajo Nation and Hopi Tribe to manage and use the Navajo Aquifer – a smaller, but significant water supply shared by the two tribes. Navajo municipal and domestic uses are unlimited. The limits on industrial uses of both tribes within the confined portion of the Navajo Aquifer and additional provisions to protect springs were negotiated directly with the Hopi Tribe.

•Fourth, the settlement agreement recognizes the right of the Navajo Nation to use all the unappropriated flows of the Little Colorado River that reach the reservation boundary near Leupp. These flows are estimated to average more than 160,000 acre-feet per year and make up almost two-thirds of the estimated natural flow of the river. The settlement agreement also limits the future rights of upstream non-Navajo landowners to ensure that the Navajo Nation can make use of these flows.

In closing, LCR water has run past our southern borders for decades. As a Nation, we are growing and we need water. Years of litigation brought us little while our communities are drying up. We can argue about legal theories, including Winters Doctrine (federal reserved rights), aboriginal rights, and historic uses. But, I suspect and predict that in the effort to quantify our water rights in state courts, we will lose more rights than we can secure under an agreement.

The settlement agreement maximizes the Nation’s water rights. I support the Navajo-Hopi Little Colorado River Water Rights settlement, and I urge you do the same. At minimum, I urge you to take a hard look at the details and work to understand its terms. I believe you will find favorable terms that will help our Nation grow. Ahe’hee.

May the Creator bless our great Nation.

Chris Clark-Deschene is an Arizona state lawmaker and a member of the the Navajo Nation.