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ALBUQUERQUE, N.M. — Editor’s Note: A landmark settlement now before a state district judge will determine how much water in the San Juan River — by volume, New Mexico’s largest — should go to the Navajo Nation and how much will be left for other users. At stake: More than a hundred thousand acre feet of water and promises made 65 years ago.

It was 1948.

Fred Wilson, New Mexico’s representative to the interstate group working to divide up the waters of the Upper Colorado River Basin, was pleading.

“The state of New Mexico wants the Indians to be protected,” Wilson told the other commissioners at the gathering in Vernal, Utah. The federal government’s Office of Indian Affairs had estimated that future water needs for Navajo Nation lands within the state of New Mexico would be substantial. But no deal that did not set aside enough water for both Indian and non-Indian water users could win political approval in New Mexico, Wilson told the other negotiators.

Wilson got his way. The final Upper Colorado River Basin Compact gave New Mexico a large share of water compared with the state’s contributions to the big river’s flow.

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“New Mexico was allotted a share of water sufficiently large to take care of every water use currently planned for the Indians by the Office of Indian Affairs,” wrote Clifford Stone, the state of Colorado’s representative to the commission.

But while the 1948 compact gave New Mexico a big lump sum of water, it was left to the state and Navajo Nation to work out the details.

Sixty-five years later, the Navajo Nation is back in court, defending its claim to the water with the backing of the state of New Mexico and the federal government.

At issue is a 2005 water settlement agreement that would secure an additional 130,000 acre feet of primarily agricultural water consumption rights for the Navajo Nation, amounting to an estimated 4 percent of the state’s entire surface water supply. That’s up from the 6 percent, or 195,400 acre feet, the Navajo Nation currently uses.

But as the parties seek state court ratification of the final water-sharing plan from the 11th Judicial District Court in San Juan County, as required by the settlement agreement, critics have grown increasingly vocal. They raise questions about whether the settlement makes sense as drought, climate change and 21st-century water demands squeeze New Mexico’s limited water supplies:

♦ Is the Navajo agricultural land for which the water is intended of too poor quality to make irrigation agriculture economically viable?

♦ Could the Navajo Nation, once it gets the rights, turn around and sell the water to thirsty cities — like Las Vegas, Nev., Phoenix or San Diego — outside New Mexico?

♦ Will the deal jeopardize the water supplies of other water users, including farmers and cities in northwest New Mexico, as well as Albuquerque?

The Navajo Nation, the state of New Mexico and the federal government argue that their 2005 agreement settling the Navajo Nation’s water rights claims is good for all parties — protecting water for the Navajo people, providing less water than the Navajo Nation might get if it launched a full-fledged court battle for its water rights, and protecting other water users in the basin.

But a number of water users, including San Juan Basin farmers and cities and the Albuquerque metro area’s largest water utility, question those assurances, fighting the deal in court.

“In fact,” said Victor Marshall, an attorney representing non-Indian water users in the San Juan Basin during a court hearing Monday, “there is not enough water in the river.”

State and federal studies disagree, concluding there is enough water in the San Juan. And they say that if drought and climate change cut into the region’s supply, the Navajo Nation’s share of the region’s water will take the first hit.

The water is central to the Navajo culture, said Erny Zah, spokesman for Navajo President Ben Shelly. “According to our culture, that’s one of the four sacred elements,” Zah said. “Water is life.”

Without the 2005 agreement settling the Navajo Nation’s water rights once and for all, non-Indian water users face the risk that the Indian water rights in a court fight could end up being far larger, said Jim Dunlap, a member of the New Mexico Interstate Stream Commission and a San Juan County John Deere tractor dealer.

“How do you mortgage irrigated land when you don’t know until this settlement goes through whether you’ll have irrigation water?” Dunlap said in an interview.

The San Juan

Dropping out of the southern Rockies to carve a tiny corner from northwest New Mexico, the San Juan is the state’s largest river by volume, a ribbon of green in one of the driest parts of the state. For part of its path, it passes through the Navajo Nation, the 25,000-square-mile Indian reservation spread across parts of New Mexico, Arizona and Utah. Some 7,000 square miles of the reservation are in New Mexico, home to an estimated 40,000 Navajo people.

The 2005 agreement allocated enough water to the Navajo Nation to complete a federal agricultural irrigation project first promised by Congress in 1962, along with a water supply for rural Navajos.

State and federal data show the Navajo Nation’s current water use amounts to slightly less than 10 percent of the San Juan’s natural flow. The 2005 settlement adds an additional 6 percent to that. The full amount under the 2005 Navajo-state-federal settlement amounts to roughly two-thirds of the amount of water intended for the Navajo Nation when negotiators were finalizing the 1948 Compact.

The core of the current dispute involves water for the Navajo Indian Irrigation Project, which was supposed to provide pipes, pumps and canals to deliver river water to Navajo land in the San Juan Basin.

The 1962 legislation earmarked enough water for the Navajo Nation to build the agricultural operation in the basin, with the federal government’s financial help. It was part of the government’s response to a series of U.S. Supreme Court decisions that found Indians were entitled by law to enough water to make a living on the reservations left to them in the settlement of the West.

The legislation also included money to build the San Juan-Chama Project, which diverts water from the headwaters of the San Juan River through a series of tunnels beneath the Continental Divide for use on farms and cities in the Rio Grande Valley.

University of Utah historian Daniel McCool calls this “the Indian blanket approach” — packaging Indian and non-Indian water projects to win political support.

But as happened with some other “Indian blanket” deals, the San Juan-Chama project was built and now supplies drinking water to Albuquerque, while the Indian water project wasn’t completed. The Navajo irrigation project was to provide water to 110,000 acres of land, but the federal government has only completed irrigation systems to the first 70,000 acres — leaving the amount of additional water needed by the Navajo Nation open to interpretation.

That poses a problem for non-Indian water users, according to Dunlap. He points to a federal law known as the “Winters doctrine,” which concluded the Indians were entitled to enough water needed to farm all the “practicably irrigable acreage” on their reservation land.

But because the U.S. Supreme Court has failed to establish a clear standard for how to do the calculations, the question of how much water Indians are entitled to has led to endless squabbling, according to McCool.

The typical route to settlement of such disputes, which has happened repeatedly across the West, is for Native American communities to settle for less water than they think they are entitled to, in return for state and federal financial assistance to use the water they get.

“These are give-and-take situations,” McCool said.

A federal analysis concluded the Navajo Nation would likely be entitled to consume 570,828 acre feet of water per year under the Winters doctrine. Under the 2005 agreement, the Navajo Nation agreed to accept 325,756 acre feet — enough to supply the water promised as part of the 1962 Navajo Indian Irrigation Project plus more than 20,000 acre feet for a pipeline to supply domestic water to unserved areas of the reservation.

It was a hard deal for the Navajo Nation to accept, according to Zah, because many Navajo believe the water should be theirs without having to go to another nation’s courts. “The water belongs to us,” he said. “It was given to us by our deities.”

Critics of the 2005 agreement, many of them represented by Albuquerque attorney Marshall, argue that the risk of the Navajos’ Winters claims are overstated because the land to be irrigated by the Navajo Indian Irrigation Project is poor farmland, not economically viable and therefore not “practicably irrigable.”

The land is on a plateau above the San Juan River, requiring expensive pumping, Marshall argues, and the soil is sandy, of poor quality for farming. The only way for the project to work, Marshall argues, is with a major federal subsidy.

McCool, in an interview, noted that non-Indian irrigation projects across the West have always been subsidized.

Defenders of the Navajo deal also point out that one of the reasons the farmland the Navajos are trying to use is of marginal quality is that they were pushed out of the higher-quality farmlands of the region’s river valleys. To now claim that the land the Indians were left with is lousy farmland and therefore not eligible for water rights would compound the legacy of the 19th-century mistreatment, the agreement’s defenders say.

In addition to Marshall’s clients, a number of other San Juan Basin water users have filed formal objections to the agreement in District Court in San Juan County because of concerns that the agreement might threaten their water rights.

Among them are the energy companies ConocoPhillips and El Paso Natural Gas, and the cities of Aztec and Bloomfield. The Albuquerque Bernalillo County Water Utility Authority has also filed a formal legal objection, raising questions about whether the settlement might jeopardize the municipal utility’s supply from the San Juan-Chama Project, which originates in the San Juan Basin.

Utility authority spokesman David Morris said in a statement that the filing “should not be construed as opposition to the Navajo settlement. We merely seek to ensure that there are no deleterious effects to the San Juan-Chama project.”

Selling water

A major point of contention is the fear that the Navajo Nation will sell its water to thirsty cities elsewhere in the western United States, such as Las Vegas, Nev.

But Navajo Nation Assistant Attorney General Stanley Pollack argues that the terms of the 2005 settlement prevent the Navajos from selling the water outside New Mexico.

Marshall argues those terms are not legally binding. “It is really clear that they can export that water,” Marshall told members of the state Senate Finance Committee at a Jan. 31 hearing. Marshall cites a 2011 comment attributed in a Farmington Daily Times article in which Pollack is paraphrased as saying the Navajo Nation has no plans to sell its water outside New Mexico, but “he believes it is within their right to do so.”

Pollack, in an interview, said Marshall is misquoting him. He said he was speaking about the Navajo Nation’s view that, should the settlement not go through and it was forced to go to court to fight for its water rights, it would be free to then sell whatever water it won.

As a practical matter, selling the water outside New Mexico would be extremely difficult under current law, according to Eric Kuhn, general manager of the Colorado River Water Conservation District and an expert on Colorado River Basin water management and law. That would likely require an act of Congress and approval of all seven states in the Colorado River Basin, he said.

“That is a very, very remote possibility,” Kuhn said.

Far more likely, Kuhn said, is the possibility of the Navajo Nation selling water rights within New Mexico, using the existing San Juan-Chama Project infrastructure to move water to thirsty users in the Rio Grande Valley.

“Long before the Navajos are going to sell water to Las Vegas, there’s going to be discussion of using the San Juan-Chama project to shore up Albuquerque,” Kuhn said in an interview.

The Albuquerque Bernalillo County Water Utility Authority has no current plans to try to buy any of the Navajo Nation’s water, said John Stomp, the agency’s chief operations officer. But in the long run? “Yes, I think we’re interested.”

— This article appeared on page A1 of the Albuquerque Journal