“CONFLICTS AND COOPERATION: THE PAST, PRESENT, AND FUTURE OF INTERSTATE WATER COMPACTS”
Denver, Colorado April 8, 2016
COLORADO RIVER COMPACT ISSUES AFFECTING THE NAVAJO WATER PROJECTS
At the University of Denver Water Law Review’s Annual Symposium, Assistant Attorney General and member of the Water Rights Unit of the Navajo Nation Department of Justice (“NNDOJ”), Stanley Pollack, spoke about issues and challenges the Colorado River Compact pose to the Navajo Nation’s water projects. The mission of NNDOJ’s Water Rights Unit is to protect the water rights of the Navajo Nation. The NNDOJ, as the Navajo Nation’s representative in state and federal litigation, is currently pursuing five general stream adjudications.
Pollack prefaced his presentation by focusing on various Colorado River issues and how interstate compacts put different restraints on Navajo water development, particularly in the context of drinking water projects. Pollack emphasized the need to provide drinking water to the Navajo Nation. Pollack pointed out that thirty to forty percent of the Navajo physically haul their drinking water in barrels. Pollack illustrated this point with a picture drawn by an elementary school student from Lake Valley, New Mexico. The picture was one of many drawings elementary school children submitted during the Navajo Gallup Water Supply Project (“Supply Project”) hearings. The drawings were supposed to depict what water meant to the children and the importance of water. The drawing Pollack showed was of a pick-up truck with two large barrels with the word “water” written on them in the truck’s bed. This drawing demonstrated that there were generations of children within the boundaries of the Navajo Nation that do not think drinking water is something that comes out of a faucet, but from a barrel in the back of a truck.
Pollack then asked the audience to imagine themselves as members of the Navajo before the explorative efforts of the Europeans. He showed aerial maps of what the Navajo Nation used to be in contrast to what it became after European migration and the establishment of the United States. The Navajo called their homeland Dinétah, and it encompasses the land between the Four Sacred Mountains: Mount Blanca, in Southern Colorado; Mount Taylor, in New Mexico; San Francisco Peak, in Arizona; and Mount Hesperus, in Colorado. What becomes evident, said Pollack, is that this is high desert country, subject to a dry and arid climate with little development. He emphasized that the Navajo had been thriving in this area for hundreds of years, until the day when foreign people came along and began drawing boundaries on the land.
The first boundary was the establishment of the Navajo Reservation. The reservation greatly reduced the land that the Navajo called home. Next, state boundaries began forming and the Navajo saw the U.S. government parcel up its homeland, subjecting them to boundary lines the Navajo had no say in forming. Then, in 1922, the Navajo saw the U.S. government divide the Colorado River Basin into an upper and lower basin. Pollack explained that, once again, the United States subjected the Navajo to boundaries they had no say in forming, but must abide. Pollack noted that with each boundary line came new political constraints on the Navajo. The boundaries told the Navajo where they could and could not live and what they could and could not do on the land. These restrictions imposed limits on what the Navajo could do with their water, and that, Pollack said, is what he wanted to discuss.
Pollack quoted the language of Article VII of the Colorado River Compact: “nothing in this compact shall be construed as affecting the obligation of the United States to the Indian tribes.” He said that by this language, the rules and boundaries on the map should not apply to the tribes. However, in reality, this is not the case. The Navajo finds themselves almost entirely in the Colorado River Basin—upper and lower—and within the three states of Arizona, New Mexico, and Utah. The geography of the Navajo Nation, Pollack said, makes it difficult to protect the water rights of the Navajo because there are so many entities at play, each with its own rules, regulations, and characteristics.
Pollack then rhetorically asked why, if the language of the compact really meant what it said, is providing water to the Navajo such a problem. He answered this by saying that, as an attorney for the NNDOJ, he can litigate and litigate, but at the end of the day, only Congress has the power to authorize a water development plan for the tribes. Therefore, Congress will use that power as it sees fit, and, ultimately, litigation is a “hollow exercise.” Litigation yields merely paper water rights, and the people Pollack represents cannot drink water from the paper he might obtain in litigation. Consequently, when the Navajo want to develop their water, they must go to Congress and request the funding necessary for that project. In doing so, they have to make sure that what they want to do fits within the political systems in place. Pollack explained that the Colorado River Basin is not just about where the watersheds are on a map or the water within the system, but rather the areas that can receive water because of the Colorado River System.
Pollack next discussed how the upper basin is composed of the parts of the upper-basin-states Lee Ferry serves. Lee Ferry is the dividing point between the upper and lower basins. The lower basin is composed of those parts of the states without the drainage of the Colorado River system. This means any part of a state, whether in the upper or lower basin, is really part of the upper basin if water from the upper basin can serve it.
The only parts of New Mexico considered part of the Colorado River Basin are in the lower basin, Pollack said. He then displayed a map and pointed out the Navajo Nation, the San Juan River Basin, and the New Mexico Water Rights Settlement. The centerpiece of the New Mexico settlement, Pollack said, is the Supply Project. He explained that there are two pipelines coming from the San Juan River that serve communities in the upper basin and lower basin in New Mexico, the Rio Grande area, and Arizona. Pollack noted that this creates four different communities needing water delivery. Delivering water from the San Juan River to communities in the upper basin of New Mexico requires little transportation because the communities use water from the upper basin. Pollack further explained that the geographical location of the upper basin makes sending water to the Rio Grande very simple, but sending water to the lower basin more difficult because the lower basin has the drainage of the Colorado River System.
It is as odd paradox, Pollack continued, that the rules essentially encourage an out-of-basin use of water by sending water to the Rio Grande where there is no return flow to the Colorado River. While, at the same time, the rules are set up against using water in the lower basin where there is the drainage of the Colorado River System because the waters below Lee Ferry can serve the lower basin. However, in 2003, Pollack went to the Upper Colorado River Commission and persuaded the body to allow the Supply Project to deliver water from the upper basin to the lower basin, provided that the Supply Project consider the water use as an upper basin use. What is important about this, Pollack said, is that the states can work together to find solutions to interstate problems even though the laws of the river on their face do not allow for such actions.
Pollack concluded his speech by introducing a pipeline project that he said is still “a pipe dream.” The project, called the Western Navajo Pipeline, would deliver water to the Western portion of the Navajo Nation. Pollack explained that the Western portion of the Navajo Nation is an area to which it is particularly difficult to get water because there are no sources of ground or surface water apart from the Colorado River. This forces most Navajo to haul their water. Pollack asserted that because it is so hard to get water from the Colorado River in the Grand Canyon, the Navajo should get water from Lake Powell. Therefore, he proposed to pump water from Lake Powell above the basin, and then pump it down into the Western Navajo area. Pollack thinks that the precedent set from the New Mexico settlement, as well as the Upper Basin Resolution from 2003, should allow this pipeline pipe dream to become a reality.