Navajo Council’s Resource & Development Committee talks water rights, decentralization, Five Year economic development plan

Here at the Navajo Nation Council Resources & Development Committee meeting at the Navajo Nation Council chambers in Window Rock, Ariz, where the RDC is currently listening to a Report from Navajo Division of Community Development Director Leonard Chee about the Decentralization Initiative/Administrative Service Offices.

I finally got a strong enough WiFi signal. I think that the heavy amount of snow that has fallen and continues to fall created a weak WiFi signal. But I am and we all should be thankful for Creator’s blessing of snow/moisture for Mother Earth and all of Life on her.

RDC votes on accepting Report on Decentralization/Administrative Service Centers is 3 in favor, 0 opposed.

The RDC has now moved to a Report on Navajo Nation Personnel Policy, specifically the Equivalency Clause impact to Chapter employment, which was to be made byu Navajo Nation Department of Personnel Director Bernadette Bernally and Raycita Toddy. But Bernally requested that the RDC allow her sufficient time to gather information/data for her Report so that she could present her Report at the next RDC meeting. The RDC granted Bernally’s request.

NAVAJO DIVISION OF ECONOMIC DEVELOPMENT STAFF TONY PERRY
There is a written Five Year Economic Development Plan and it is very thick. A week ago Division of Economic Development Director Damon presented his “vision” but this is actual written plan which division of economic development is pursuing.

Page 3 summarizes what Division of Ec Dev is doing: regional development, small business, industrial development, tourism.

It’s a working document and stamped as draft. We want to return to RDC and have RDC finalize Five Year Plan for 2015 to 2020.

CHIEF FINANCIAL OFFICER RAYMOND NOPAH
The RDC has statutory authority to approve overall economic development plan.

We are just presenting list of what the Division of Economic Development is doing in Project Development; Regional Development; Small Business; Industrial Development. This Five Year Plan works well for us and to set up budgets. It helps us to manage our projects. There is only so much money and so there is need to operate under guidance, plan.

Our intent is get money back that we invest. We make our best efforts.

The 2015 DED Five Year Plan is going though signature review process and legislative process. We just want to give you heads up that DED is creating Five Year Plan and we look forward to working with RDC on Five Year Plan projects.

RDC MEMBER DELEGATE WALTER PHELPS
in our previous report, we discussed establishment of Regional Councils and part of that intent would not be limited to fostering economic development but being able to meet investors, create initiatives that would benefit region so how would Economic Development, which has Regional Development Offices, work with chapters

NAVAJO NATION DIVISION OF ECONOMIC DEVELOPMENT STAFF TONY PERRY
The Five Year Plan is the basis to pursue Sale Tax internally and that means that whatever projects we put on Five Year Plan is eligible for Sale Tax.

RDC MEMBER DELEGATE LEONARD PETE
If u get out into business world, u will see how much it changes and we will be left in dust with plan that was created four years ago. In Chinle, we have been working on getting development on west side of Burger by getting land withdrawn for Village Inn. WE have been meeting on that. There is also name sore for lumber business. I don’t know how much you work with DED Regional Business Development Office, which has no vehicle to travel around. I want to see lumber business cleaned up and dam, which Chinle has been working on since 2010. Are we completely out of the picture? I say that because of how our Regional Business Development Office is treated. And the dragging out of special presidential election is also hurting Chinle economic development.

RDC MEMBER BEN BENNETT
Yes, we were entertained by Navajo Division of Economic Development Director Damon. I don’t see anywhere about Solar Business. It went defunct. It was to be data design facility by same company. And there are pple wanting to use facilities and the same Solar pple are tying up land in Iyanbito.

RDC MEMBER DELEGATE DAVIS FILFRED
we have an electrical line in our area, US Hwy 160 that carry motorist daily

RDC CHAIRPERSON DELEGATE ALTON SHEPHERD
the 2014 listing expire May 2015 so RDC task is to adopt another Five Year Plan, just like Capital Improvement Project plan, which we are trying to find funding. And would Navajo Sale Tax be used to fund 2015 Five Year Plan? And are you working with Navajo Tribal Utility Authority which received millions for infrastructure.

DED STAFF TONY PERRY
the sites you are talking about are old development and asbestos is involved and so we have do testing and once done then we can make improvements or demolish building.

Delegate Bennet raised issue of Fort Definace site and Church Rock, which has lease. So we must assure that they are following through with the promises.

Delegate Filfred, we are coordinating with Regional Business Development Office.

Remember that this is working document. And the Five Year Plan is funded by tribal Sale Tax.

RDC MEMBER DELEGATE BEN BENNETT
regarding Tax revenues and how used. I know that RDC pased resolution for dED to collect Fuel Excise Tax for limited time and there was another resolution for Fuel Excise Tax for convience stories. Where is that funding?

NAVAJO DED STAFF TONY PERRY
Fuel Tax is collected by Tax Commission. Yes there were funds identified and set aside for four projects – Shonto, Dennehotso, Church Rock, for access roads and not projects. And Navajo Department of Transporation is asking for agreement to do access roads.

LEONARD PETE
you put $500,000 into Church Rock Industrial Park site which is land locked. We met with gentleman and so use funds to cleanup area lumber business in Chinle. Money can be made instead of pouring into CR Industrial Park.

Mr. Nopah can you identify Industrial Parks based on your four catgories. Will this all be done by May 2015 so perhaps you should return before May 2015.

RDC MEMBER LEONARD PETE
Going back to Junction, there is waterline in there and we were to meet with NTUA and others regarding infrastructure, including a sewer line, for that site, which is a prime spot. If the area is developed, the Chinle community can generate revenues. Chinle only has two water wells and one of the wells is losing pressure.

RDC VOTES ON REPORT FROM ECONOMIC DEVELOPMENT, 3 IN FAVOR, 0 OPPOSED.

RDC IS NOW ON WATER RIGHTS REPORT BY NAVAJO DEPARTMENT OF JUSTICE ATTORNEY STANLEY POLLACK.

RDC CHAIRPERSON ALTON SHEPHERD
We want Report to be as Public as possible. We just want update on Water Rights in all three states. One settled in New Mexico and one going through process in Arizona and Utah.

NAVAJO DEPARTMENT OF JUSTICE ATTORNEY STANLEY POLLACK
i prepared short power point to make everything as general as possible and not get into legal strategy and provide geographic information. Usually when start i show map of Navajo Nation and that nation is in three states and most water is in Colorado River rights. and when talk water rights we are talking about collective water rights.

mc kerren amendment forces Navajo to litigate water rights on state by state basis.

starting with Az ther eis Little Colorado Basin, Upper Basin claims. LCR started litigation in 1978 to use all water. The reason we are in lawsuit, the states are trying to determine their water rights and so we are brought into these cases with thousands of other water users. LCR there are 12,000 different claimants and tribes. Zuni settled water rights in 2003. White Mt Tribe has 2010 water settlement. These cases move very slowly. We are in adjudication with Hopi Tribe.

Dividing line between Upper and Lower Basins is Lee Ferry and one mile below Confluence and basically upstream from Navajo bridge.

So within the nation, there are three basins in three states. Rio San Jose litigation, Zuni River adjudication and in federal court; Arizona – lands in Upper Basin and there is Colorado river; Utah involves is Upper Basin.

LCR flows into Grand Canyon and court has focused on claims of Hopi
tribe. we started litigating non Indian claims at headwaters and after 3 or 4 years of litigation and litigation not ending anytime soon, we looked at tribal claims which created uncertainty. we kow how much states used based on how much they use. tribal use harder to define. no specifics except focused on tribal claims with Hope cuz small tribe but state has not done field work. and so Hopi saying they have senior water rights to other tribes and we have spent years and time litigating that. special master issued report recommending Hopi priorities. oral argument in January before special master which has not ruled on arguments. that is Little Colorado River.

as you know we tried to reach settlement of Little Colorado river claims that NNC rejected in 2012 and there is no interest to return to settlement table.

LCR mainstem in 1950s was California versus Arizona and Navajo tried to intervene but was rejected so Navajo not part of decrees regarding LCR main stem. what we have done is file lawsuit SOI in 2003 tht SOI has engaged in number of activities to manage water in Lower Basin. WE allege that S OI has taken action without Navajo water rights defined so filed under Environmental Protection Act which would force SOI to define water rights in LCR main stem. but can’t sue directly because of sovereignty of federal government and Arizona. WE are in front of 9th Circuit of Appeals.

Upper CR, there is no litigation because there is no real challenge. The Navajo Nation in upper basin controls all the land except for small land in Glen Canyon and City of Page. WE gave report to Naabik’iyati Committee in 2013. 50,000 acre feet for Navajo Generating Station and NGS using 40,000 acf and 25,000 af and Page use 3,000 .

Zuni River Basin is primarily ground water and Zuni, federal government, Navajo working on ground water study/report to determine how ground water works. There is adjudication and discussion going on for two years.

Rio San Jose involves San Juan River basin includes Acoma and Pueblos

NM San Juan River in NM Water Rights Settlement: we spent 3 years in front of court that settlement fair and reasonable. Non Indian water users have filed lawsuit that settlement unfair. NM Supreme Court rejected claim. Dec. 2013 appeal of NM Supreme Court rejection.
PL 112-11, Tile X, Subtitle B, March 21009.

Navajo Nation San Juan River in NM Water Rights Settlement chart. In Upper Basin water rights defined by use, not by diversion, which is depleted. Navajo controlling 56 percent or 58 percent of water, 336,000 depletion rate.

Navajo Gallup Water Supply Project is backbone of NM Water Settlement from Upper, Lower Basin and Rio Grande Basin. But we have no water supply from this project for Arizona communities which can only be done with settlement of Little Colorado River and that was in LCR Water Settlement but Council rejected so no water for Arizona communities.

Utah, we are in any active litigation. Navajo entered 2003 memo with Utah for quantification of water rights and Utah does not want to litigate. in 2008 and 2010 we have a draft settlement. Feb. 2013 final negotiating tems was created and now answering questions and they have critiqued settlement that involves millions of dollars of water project. we hope settlement introduced to Council in near future. 81,000 acre feet of water depletion estimated.

LCR, litigation in terms of water can use, available water today form LCR and groundwater, there is no limit on use. But only pratically take.

Main stem, no litigation. we are trying to get US to get action to quantifiy main stem water rights of Navajo.

50,000 acre feet of water use in Arizona and 25,000 used by NGS.

litigation with Zuni is grpound water.

Utah and Navajo in settlement.

that is it for Report.

RDC MEMBER WALTER PHELPS
I was interest in Gila River Basin because of Big Boquillas.

NDOJ ATTORNEY STANLEY POLLACK
we are part of Gila River adjudication. In Gila River, the Navajo owns Boquillas Ranch and land is fee simple so no federal oversight. Navajo Water Rights not extensive. The LCR settlement would have settled those rights. Navajo not asserting reserved water rights.

RDC MEMBER WALTER PHELPS
My other question – Zuni River litigation – if settlement, would it reduce Navajo water rights?

NAVAJO DEPARTMENT OF JUSTICE ATTORNEY STANLEY POLLACK
in Zuni River adjudication, it’s between Zuni and Navajo. There is very little surface water and what is there runs through Zuni Reservation so they have larger claim and to say what water claims look like is hard to say. And Navajo only using ground water and so make sure there is no limitation of Navajo use to ground water. It is hard to say how settlement impact Navajo. Pueblos in discussion with two major groups, Blue Water Toltec Irrigation group. Navajo have been using water impounded in stock wells. If settlement with other parties we have to determine if settlement adversly impacts Navajo. Other concern is those pumping underground water and also Zuni concern. Zuni recommended that power plant get alternative water source.

RDC MEMBER DELEGATE LEONARD PETE
I believe if you touch Colorado River Basin, you touch blood line of seven states and when they made agreement, that agreement was made without American Indians at table, who only got bucket of water. I want detailed info for breakdown for Utah, NM, Arizona. Who is getting how much acre feet of water annually? When get to Arizona, water is quantified. Agreement was in 1922 to quantify Little Colorado River and weather pattern has changed. I’m not sure when drought kicks in. And I’m reading book that agreement over subscribed water amounts to the seven states. I don’t want quantification from 1922 but now, reality. What does Navajo have? how many buckets of water can we get our of LCR, besides what goes to NGS. If it is over subscribed and very little water, what is there to fight for? Is it worth fight? Seems like tribe going through desert and never gone thru desert and don’t know size of desert. I’m asking how much water do we actually have to our name. 50 to 70 years later, the water we have now is can we survive? if we don’t do anything, what do we put in place for younger generation? if you were to priortize, i want to see how much water Navajo has? Are we going to sit here and shuffle cards when hear report like this? my concern is future generation. I really don’t have much trust in run off of LCR. if go into extended drought, it starts going down. what do we rely on. what about Phoenix? and ground water that is stored and not tapped into, what happens to it if not use? can someone say we are not using and so they can take to phoenix? what are plans to use water? besides economic status, land status, who is watchdog that throws up flag? i understand short presentation but when will we have time to look deeply into Navajo water rights. This was not under RDC past four years. It was under Naabik’iyati Commitee and I never heard report from them. Are we playing with this like cat playing with water? are we going to tackle this thing. I dk how long he has been around. I had dream about water. And there was plan for NAPI to use water but federal government never gave money to Navajo for NAPI to be finished. And some pple say that that water for NAPI is behind Navajo Dam. I don’t believe that.

RDC MEMBER DELEGATE DAVID FILFRED
I want Utah Water Settlement this year. We have right people in Congress and state. Utah Governor supports and I’m sure Council will support. I understand that there were many public hearings in area. If don’t do anything that window of opportunity will be gone and maybe the next Congressional people will not support. I know we need to do legislation from Council. Utah Sen. David Hankens has Utah state legislation for water settlement.

RDC CHAIRPERSON ALTON SHEPHERD
As RDC, we can’t get things done in one day. But we need plan to go forward. For me, I want litigation to better ourselves. I have questions regarding settlement in New Mexico and the dams will be opened. So who is watchdog to make sure that all 56 percent of that water is captured by Navajo? We are on position that if we don’t use it, we lose it. And water goes into LCR which is in Arizona and Utah side. So are you to correct water level at Glen Canyon Dam and release of water for Navajo? And regarding Little Colorado River, the settlement didn’t go through so perhaps we should put $554 million which is now down to $#409 million for water use so courts can see. Relied on Sens. Kyly and McCain for SB 2109 but time to do ourselves. We appropriated $7 m for Little Colorado River water shed. So now who will work on using on that water? there are pple here today that have plan to use LCR water. WE learned from mistakes. Today is report but we have bigger questions. Local pple are open and Community Development office is willing to work on water projects. What is analysis of NDOJ/Pollack? All i see is $2 m for Water Rights Commission and that money could go to water projects to show Navajo is using water.

NDOJ ATTORNEY STANLEY POLLACK
Chairman is correct that we need to sit down and discuss how to maximize water claims. I will say as practical matter that advice to Council over years had not changed. When comes to water development, don’t need water quantification. You don’t need approval of state. The best way to protect ground water is for you to put it to use first. So in LCR Basin which is under Coconino Aquifer, there are several proposals for water projects and at one point there was plan to use C-Aquifer for Peabody Coal Mine and Navajo communities. That settlement didn’t work. Pete talked about drought, Navajo communities rely on shallow aquifers that grow water short. We tried to develop deep ground water aquifer and same for Window Rock. So there were plans to have more reliable supplies. Water Department has water strategy document that priorities water needs of reservation. Available online and being updated and was approved by former RDC and Economic Development Committee and should be returned to RDC. I invite RDC to set aside full week. Pete asked how much water allocated to states in 1922. It didn’t. It divided Upper and Lower Basin and quantified water use. Not all water quantified. in 1948, Az 5,000 acre feet water. Other states don’t get firm water amount from Upper Basin cuz 75 million acre feet of water delivered to Lowe Basin. Mexico gets 11.4 percent. BLM estimates 6 million acre feet water; NM gets 680,000 and 300,000 is for Navajo. In that same vein, Shepherd asked if Navajo capturing full amount of water? No and why non-Indians protesting non-use of water by navajos. Water rights of Navajo won’t get taken but if don’t use then non-Indians use. When senior not use water then available for junior water users to use. Emphasize what Pete brought up and that is extended drought. Navajo no right to take water from Upper Basin but Navajo has right to use Lower Basin and ground water. Pete also asked if made any sense to fight for water? Navajo should fight. Filfred asked about Mc Calmo Creek which experienced water shortage from drought. so we recommended $5,000 for water reclamation and for farmers to use ground water which gets recharged from Delores Project. i support Filfred’s push to settle Utah Navajo Water Rights. Senate Finance Committee headed by Utah Senator Hatch. On House side, no settlement approved that requires federal funding, much less hearing. Navajo Water Rights Commission has had public hearings. Do you want more public education? or do you want legislation introduced along with education? SCR 2 supported by Prez Shelly. State of Utah started process for Navajo Water Settlement Fund. I do welcome opportunity to sit down and talk with you in depth.

RDC CHAIRPERSON ALTON SHEPHERD
I’m going to look to RDC member Filfred regarding Utah Navajo Water Settlement and we probably need full day. On March 19, Speaker Bates asked for priority listing from committees and I feel that Water Rights is priority and if it becomes number one then we put all efforts to that. Or maybe it becomes roads.

RDC VOTES ON WATER RIGHTS REPORT, 4 IN FAVOR, 0 OPPOSED

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