SALT LAKE CITY — Gov. Gary Herbert has set aside $2 million in his proposed budget for fiscal year 2013 for what would be the first installment of money that is part of a settlement agreement pending with the Navajo Nation over water rights.
The money is part of $8 million the state proposes to pay to help fund $154 million for water projects in the Utah section of the Navajo tribe. The rest would be paid by the federal government.
In the works since 2003 when Utah and the Navajo Nation executed a memorandum of agreement to pursue negotiations before litigation, the proposed settlement is a recognition by the state that the tribe has rights to an annual consumptive use of 81,500 acre feet of water. The water is part of Utah's unused allocation from the upper Colorado River system.
The proposed settlement also recognizes the use of up to 314,851 acre feet of water per year as the long as the annual depletion limit is not exceeded.
Stanley Pollack, the tribe's attorney, said the authorization for the state's contribution to the settlement is just one step in a long process that will require Congressional approval of the settlement and authorization of the proposed drinking water projects. The settlement will also require approval from the Navajo tribal council.
He said to have such an agreement in place will help move the process along at the federal level — with an advantage to having the tribe and the state in harmony on the details.
"We know that the United States, when we go to Congress, will want to see a local cost share in the projects," Pollack said. "Rather than have the United States tell us what that will be, the state of Utah has been proactive in coming up with that share."
The Navajo tribe in Utah numbers about 6,400 people who have a 1.9 million-acre reservation in the extreme southeastern portion of the state.
Pollack, who works for the tribe and lives on the reservation, has been negotiating reserved water rights for tribal members in Utah, Arizona and New Mexico.
His experience, he says, has been different in Utah than in other states.
"Utah has a really good track record of sitting down and wanting to settle these things without a lot of protracted litigation. They have a much better long-term view of water rights than some of the states do — a more informed view."
Pollack said 40 percent of the homes on the reservation lack running water — what is used has to be hauled in. Infrastructure is poor at best and water quality is an issue as well, he said.
"It's a question of availability, question of infrastructure and adequate water quality," Pollack said. "The biggest problem we've got is the lack of developed infrastructure. There are a lot of areas where there are not adequate water supplies, where there's very poor ground water, surface water."
Mike Styler, executive director of the Utah Department of Natural Resources, said the proposed settlement has been on the drafting table for some time and represents a good faith recognition by the state that the Navajo tribe needs tools to better develop its reserved water rights.
Pollack said the tone of the negotiations has been remarkable over the last several years.
"The state has said we are really committed to this deal. 'We are not sitting on our hands.' It is really admirable what Utah is trying to do here."
He said that tone was struck, in particular, when team of negotiators from Utah — which included then-State Engineer Jerry Olds — flew to the tribal capital of Window Rock, Ariz., to begin discussions with the Navajo.
"For a state engineer to be coming to the Navajo Nation — it was a first for a state to actually go to the nation to talk," Pollack said.
Other negotiations or settlements have been fraught with challenges from other water users who fear their rights are being impaired, Pollack said, or marred by talks that have bogged down in the slow machinery of bureaucracy.
In New Mexico, for example, thousands of water users have signed up to participate in a series of settlement hearings that are part of a judicial review of the agreement reached by New Mexico, the Navajo tribe and the U.S. government. The proposal to divert up to 600,000 acre feet of water is being disputed by users of irrigation ditches who assert the tribe should have to prove it has rights to that much water.
The settlements simmering in multiple states are the result of a U.S. Supreme Court decision in 1908 that said tribes have reserved water rights claims that help to fulfill the purpose of reservations.
In 1990, the U.S. government put in place criteria for Indian water right settlements, which include the requirement of a non-Indian cost share.
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