Thursday afternoon at the Natural History of the Gila Symposium, which was a three-day event, the 2004 Arizona Water Settlements Act was presented by three people-Mary Reece, Bureau of Reclamation engineer; Craig Roepke, Interstate Stream Commission deputy director; and Allyson Siwik, Gila Conservation Coalition director.

"There are a lot of misconceptions about the AWSA and how it came to be," Reece began. To better understand how the settlement came about, it is helpful to look briefly at the legal background within which water is managed.

She said water in the West is managed based on the Doctrine of Prior Appropriation which states that no one owns the water; it must be put to beneficial use which varies from state to state; and first in time, first in right.

According to the Federal Trust Doctrine, determined in Winters versus U.S. in 1908, Indian tribes have a priority date for water rights based on when the reservations were created.  

In Arizona, attempting to honor both of these principles at the same time resulted in conflicts over water rights. She alleged there are benefits to settlement versus litigation of these conflicts. Benefits include having a greater certainty in what water is available in affected areas to better manage it. "Some think settlement means everyone loses, but I hope it helps everyone make better decisions."

The 2004 AWSA settled long-standing disputes, and is really four settlements in one—sort of, she said. Each settlement is connected to the others.

The AWSA is at the center of a graph, with the Central Arizona Project, the Gila River Indian Community and the South Arizona water rights of the Tohono O'odham being three prongs of the settlement. A placeholder exists in the act for the San Carlos Apache Tribe which allows for ongoing negotiation while implementing other portions of the AWSA, affecting the Tribe.

The Central Arizona Project sends water from the Colorado River through canals to Phoenix and Tucson. The four-county area of southwest New Mexico, including Hidalgo, Catron, Grant and Luna counties is part of the Title II GRIC portion of the settlement.

The AWSA was passed on Dec. 10, 2004, and, due to numerous other actions required by the AWSA including changes in state legislation, became enforceable on Dec. 14, 2007.  In Jan. 1, 2010, the Lower Colorado River Basin Development Fund became available for AWSA expenditures.

The CAP portion of the settlement reduced the Central Arizona Water Conservation District repayments of the CAP costs, as well as reallocated some non-Indian agricultural priority water to the tribes. Arizona has a system of priorities off the CAP. As a result of reallocating lower priority water, Arizona and the Federal government are now required to “firm” additional quantities of water at a higher priority for the tribes for use when a shortage exists.

In response to a question, Reece said she has heard estimates that as much as 55 percent of the water in Arizona may be allocated to Indian tribes, when settlements are reached with remaining tribes in the State.

Reece explained that New Mexico was always part of the CAP, and that it was not new in the AWSA. New Mexico can divert and use water from the Gila or San Francisco Rivers, as long as the Gila River Indian Community receives an equivalent amount of CAP water delivered downstream.

As for prior efforts in the 1980s to dam the Gila River and store the water, the Bureau of Reclamation eliminated the Hooker and Conner dams on costs and environmental issues.

"By the end of December, 2014, New Mexico has to decide if it wants to take the water in exchange for CAP water to the Gila River Indian Community," Reece said.

Reece explained the AWSA funding for New Mexico. Ten equal annual payments, totaling at least $66 million, will be paid to New Mexico, into a fund managed by the ISC. The first payment of about $9 million arrived in January 2012. An additional $62 million will be disbursed only on a construction schedule of a or several New Mexico Unit(s).

The Consumptive Use and Forbearance Act is a set of rules on diversion of water from the Gila or San Francisco Rivers ratified by the AWSA. Signatories to the CUFA agreed not to sue New Mexico for diverting water, as long as New Mexico diverts in accordance with the CUFA terms.

"The Gila Valley in Arizona has also been paid to mitigate effects of the water being diverted in New Mexico," Reece said.

"Our role, as the Bureau of Reclamation is to provide oversight and support for the Secretary of Interior," Reece continued. "We manage the Lower Colorado River Basin Development Fund, assume environmental compliance and oversee the Federal Trust responsible to the tribes."

Reclamation is working with the ISC, offering technical assistance. "We will look at the economics of the proposed projects." In addition, Reclamation is assessing technical aspects of the diversion proposals.

To a question about how many irrigation districts in Arizona did not sign onto the CUFA agreement, Reece replied that none of those that would be affected by the Act had failed to sign.

Another audience member asked why New Mexico would want to exchange Gila River water for Central Arizona Project water. He, as a former Tucson resident, said he remembered what a nightmare it was when Tucson chose to take CAP water.

Reece said it would not be the same. The Gila River water would be coming directly from the river or off-site storage, whereas in the situation in Tucson, the older city water system reacted strongly to the Colorado River water delivered by the CAP canal system.  Many miles of pipeline had to be replaced.

The next article will feature the presentation by Craig Roepke, ISC deputy director.