The Gila River winds through many lands before and after it enters Arizona, including the territory of some Native American tribes that historically have relied on the water for their homes and their crops. One of those, the San Carlos Apache Tribe, has thrown shade on any future New Mexico Unit diversion by virtue of their refusing to be a party to virtually any aspect of the project, or its affiliated agreements.
The 2004 federal Arizona Water Settlements Act was intended to address the fact that some communities — particularly Native American communities — had long been on the short end of the stick when it came to water rights. The Central Arizona Project, known as the CAP, is a major diversion of Colorado River water that began supplying water to Phoenix and Tucson in the late 1980s — but it is only an outsized example of diversions that impacted downstream communities in southern Arizona over the years.
Four New Mexico counties are also included in the settlement legislation: Catron, Grant, Hidalgo and Luna. As a result, the New Mexico Unit of the Central Arizona Project was created, making available millions of dollars from the settlement. Farmers and landowners in southwestern New Mexico banded together to form the New Mexico Entity of the Central Arizona Project aiming to spend that money.
Should the N.M. CAP Entity proceed with their plan to divert up to 14,000 acre-feet of water from the Gila and San Francisco rivers, a rarely discussed sticking point lies ahead for the project. The AWSA that provides the money for the project includes by reference what is called the Consumptive Use and Forbearance Agreement, or “CUFA,” a deal among the federal government and downstream users of the Gila River.
Before the N.M. CAP Entity could start diverting water — should the project come to fruition — there are requirements that it must satisfy, most of which revolve around the San Carlos Reservoir, operated by the Bureau of Indian Affairs on San Carlos Apache tribal land. Most of the water users in that area and downstream signed on to the CUFA in 2005 and 2006, and are therefore guaranteed exchange water, or “credits,” for lost water resulting from the diversion upstream.
“The CUFA is a complex document,” said Dominique Work, a lawyer with the N.M. Interstate Stream Commission. “One requirement is that New Mexico can’t start diverting water unless there is at least 30,000 acre-feet in the San Carlos Reservoir at the beginning of each year.”
Even when the reservoir has 30,000 acre-feet in it at the beginning of the year, sometimes the water quality is poor, which is also a sticking point. The 22 water users that signed on to the CUFA agreed to forgo the right to sue over water quality or quantity.
But in a glaring exception, the San Carlos Tribe did not sign on to the agreement. They have also refused to allow a pipeline — as part of the AWSA — to be built on their land.
“The pipeline would provide water from farmers in the Safford, Arizona, area,” as part of the water settlement, Work said. “The farmers were given $15 million in the AWSA to build that pipeline. They built it until they got to the land boundary of the tribe, and the tribe said, ‘You aren’t building that on our reservation.’ So there is a means to get the water — and that is a prerequisite.”
Since the tribe has both refused to complete the project and refused to sign the CUFA, it is debatable whether their water needs would be met by the half-built pipeline.
Work asserted that the “mechanism is satisfied” for getting the tribe the water it is due. But it appears that the tribe — which Entity Director Anthony Gutierrez points out “only get[s] 6,000 acre-feet of water per year from the reservoir” — apparently wants their water to come from the Gila River. And that raises water quality issues.
Stephanie Russo Baca, staff attorney at the Utton Transboundary Resources Center at the University of New Mexico School of Law, isn’t so certain that San Carlos wouldn’t have standing to sue. She interprets the AWSA as giving the tribe the right to litigate against the Entity and whoever else it feels is culpable for low water quality.
“The Arizona Water Settlements Act states that the United States — on behalf of the San Carlos Apache Tribe — or the tribe itself can assert any claim against any party, including any claim for water rights, injury to water rights, or injury to water quality,” she said. “Even though the San Carlos Apache Tribe is a non-signatory to the CUFA, this does not preclude them from asserting their rights.”
When the river gets low in the summer months, contaminants and salinity levels rise and the water can become undrinkable. Last July, the water in the San Carlos Reservoir was so low that the Daily Press reported a massive die-off of fish had occurred.
A New Mexico diversion could make that problem worse — although Gutierrez argues that it wouldn’t.
“They want drinkable water, and I sympathize and empathize with them — but the [water quality] issues are pre-existing,” he said. “From the big picture, the amount of water we are proposing is a minute amount of the whole system.”
After revisions to their plans earlier this month, the Entity would likely be diverting only 2,000 acre-feet from the river annually. This estimate is down from last July, when the Entity estimated it would be diverting 4,000 acre-feet annually.
“Any impact would be minimal, and [the proposed diversion] may even provide a positive impact. Usually the water quality goes bad when there is no stream flow. Unlike [temporary dirt] push-up dams, which block the river, a diversion structure would allow stream flow.”
Work said the water quality issue and any CUFA complications will come to the fore when the Entity’s diversion project gets closer to being a reality.
“We haven’t gotten that far. The non-Indians did everything they could to satisfy this, and for the tribe to claim ‘you can’t do this because the water quality issue is not satisfied’ isn’t a valid argument,” she said.
The U.S. Bureau of Reclamation will call together a technical committee to decide who gets how much exchange water once the Entity declares how much water they actually intend to divert — a number which has gone down steadily through the design phase.
The Entity is required to provide a final amount of water to be diverted one year in advance of the actual diversion going online, and Gutierrez hopes to have worked something out with the San Carlos Tribe by that time.
“We met with San Carlos and presented the project to them, and they have issues based on water quality,” he said. “In our discussions with them, we told them that we feel — and this is borne out by the biological assessment in the EIS — that the project could provide a benefit to them.
“They didn’t sign the CUFA, and there are potential issues there,” Gutierrez continued. “We haven’t heard back from them lately, but they did publish a statement at the beginning of the NEPA [National Environmental Policy Act process] saying they didn’t support our project.”
The Daily Press was unable to obtain a comment from the government of the San Carlos Apache Tribe for this story. The Office of the Tribal Chairman informed the Daily Press that the chairman was currently on leave, referring inquiries to the Tribal Office of the Attorney General. The Tribal Office of the Attorney General told the Daily Press that only the Office of the Tribal Chairman could answer media requests.
Geoffrey Plant may be reached at geoff@scdaily press.com.