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White Mountain Apache Tribe’s gold is drinking water (The White Mountain Independent)

December 10, 2010

With the signing of the Claims Resolution Act of 2010, the White Mountain Apache Tribe is closer to seeing a drinking water project come to fruition.

The bill passed in the Senate in November and has recently passed in the House of Representatives. President Barack Obama signed the bill into law Wednesday.

Part of the Claims Resolution Act included a settlement for the White Mountain Apache Tribe. The White Mountain Apache Tribe Water Rights Quantification Act confirms the tribe's water settlement and authorizes over $200 million in funding for a drinking water project on the reservation, the Miner Flat Dam and Reservoir.

Dave Brown, a St. Johns attorney who represents many cities and towns in the White Mountains, as well as farmers, ranchers and water districts in the area, said the facility will be built in the North Fork of Whiteriver.

"They really do need a drinking water source for Whiteriver, Canyon Day and Carrizo," he said.

Under the settlement, Brown said the White Mountain Apache Tribe waives all claims to water in the Little Colorado River, except for a couple of wells up by McNary. In return, the tribe gets benefits as outlined in a 2004 settlement for the Gila River Indian Community. That includes 50,000 acre-feet of water per year, half of which the tribe already uses Brown said, and 27,000 acre-feet of water per year from the Central Arizona Project. Brown added they can lease that water to cities if they cannot use it themselves.

An acre-foot of water is just over 325,000 gallons. The State of Montana says that nation-wide is considered to be the usage of one family for one year. In the southwest, according to the City of Santa Fee, NM, the average family uses one quarter of that amount.

The federal funding for the Miner Flat project, Brown said, will be used in different areas. He said around $127 million to $130 million will be used for construction of the dam, around $50 million for operations, maintenance and replacement, around $25 million for cost overruns and around $2.5 million for the United States to operate it for the first year.

Brown said there are still two hurdles facing the White Mountain Apache Tribe Water Rights Quantification Act. He said the adjudication judge in both the Gila and Little Colorado rivers has to approve both settlements. If that occurs, he said, the Arizona Department of Water Resources will put out a report within the next six months to a year and people will have a chance to review and comment on it. He said water users in the Gila and Little Colorado rivers will also have a chance to object to it.

Brown said this has been a very long process, starting in the late 60s and early 70s with various tribes in Arizona making claims for water in federal court. Over time, he said the Forest Service, Bureau of Land Management and National Park Service also started to make water claims.

To help process all these claims, Brown said the state passed adjudications statutes to figure out who has rights to water and where. He said the United States filed a claim on the White Mountain Apache Tribe's behalf in the 1980s, as the tribe was a trustee.

Brown said the major claims were by the Navajo, Hopi, Zuni and White Mountain Apache tribes, and their claims far exceeded the amount of water that exists in Arizona. Brown said Zuni claims were settled seven years ago, while negotiations to settle Navajo and Hopi claims are ongoing.

The 2004 Gila River Indian Community settlement, he said, would provide much of the groundwork for the White Mountain Apache settlement through the 2004 Arizona Water Settlement Act, which Sen. Jon Kyl sponsored.

"A lot of the funding for the Apache and the water was authorized by Congress in that earlier settlement."

That settlement, Brown said, authorized a certain amount of Central Arizona Project water for future tribal settlements, including the White Mountain Apache Tribe. He said negotiations with the White Mountain Apache Tribe, who filed claims for water in the Little Colorado River and Salt River basin, began after that 2004 act. He said the White Mountain Apache Tribe's claim was the pumping of water up to the rim affected the availability of water, both ground water and stream water, to the reservation.

Brown said Kyl met with a group of the parties involved five years ago in Hon Dah and negotiations on the settlement lasted three years. The settlement was reached two years ago and has been awaiting federal approval.

The White Mountain Apache Tribe Water Rights Quantification Act was introduced by Kyl in the Senate in 2008 and later in the House by Rep. Ann Kirkpatrick. The bill, Brown said, is to satisfy part of the Cobell Legislation, in which the United States was sued for mismanaging trust funds for the tribes. The White Mountain Apace Tribe was one such tribe.

"It's to pay an obligation for the United States."

Still, Democrat Party officials are blasting Kyl, a Republican, for inserting the White Mountain Apache Tribe Water Rights Quantification Act into the Claims Resolution Act of 2010, calling it an earmark. However, officials with the Department of the Interior and Taxpayers for Common Sense, an anti-earmark group, said Kyl's action did not constitute an earmark, but a settlement of a claim against the United States government, according to a Nov. 24 CNN news story.

The settlement, Brown said, also benefits White Mountain communities in the Little Colorado River basin, like Show Low and Pinetop-Lakeside, because now those communities do not have to litigate.

"The cost of litigation, I'm guessing, would be in the millions."

Kyl said on Nov. 19 that legislation in the entire Claims Resolution Act is fully offset, making it budget neutral. Kyl's office said the act was made budget neutral with actions in other budget areas. Such offsets, they said, include anti-fraud measures that will reduce the amount of overpayments of unemployment insurance, extended customs user fees and rescinding $562 million of unobligated Department of Agriculture surplus funds.

White Mountain Apache Tribe’s gold is drinking water (The White Mountain Independent)

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