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1999 Friends of Lake Powell, Inc.
www.lakepowell.org
P.O. Box 7007
Page, AZ 86040 USA
(928) 645-2741  Fax: 928-353-2227

Testimony of Melvin F. Bautista, Executive Director
of the Division of Natural Resources of the Navajo Nation

Before the United States House of Representatives
Subcommittees on Water and Power, and National Parks
and Public Lands

September 23, 1997

My name is Melvin F. Bautista. I am the Executive Director of the Division of Natural Resources of the Navajo Nation, and I am also a member of the Navajo Nation. I thank the House Subcommittees on Water and Power, and National Parks and Public Lands, as well as the leadership of these entities, for kindly extending an invitation to the Navajo Nation to testify at this meeting.

I. Introduction

We are gathered here to discuss Mr. David R. Brower's and the Sierra Club's proposal to drain Lake Powell to purportedly stop wasting water, for protection of water rights, to provide more water to the States of Colorado and Utah, as well as Mexico, and to recover paradise lost (recover the aesthetic beauty of the Glen Canyon region, protect and strengthen the arts of poetry, and recover native species allegedly destroyed by the creation of Lake Powell).

To abide by the recommendation of the Sierra Club, articulated in 1958, would wreck disaster upon the economic and social welfare of the Navajo Nation. It would also detrimentally and fundamentally alter a water preservation, delivery, and supply system crafted by many decades of planning and social compromise for the sake of a myopic, selfish, impractical, environmental deal. In short, the Sierra Club's proposal does not address all of the complexities of water administration under the upper compact and lower compact states. It also does not address the adverse impacts on Navajo water rights, Navajo economic development concerns, or Navajo social welfare.

II. Background

Water is life in the western region of the continental United States. Water considerations affect land and economic development plans and opportunities for all who live here, including the Navajo Nation. The Colorado River is the primary water supply and ground water recharge source in the Colorado River Basin States. It begins high in the Rocky Mountains in Wyoming and Colorado and meanders through Wyoming, Colorado, Utah, Nevada, Arizona, and California before reaching Mexico, where it empties into the Gulf of California.

With the need to provide water to settlers and miners, the Federal government set about to implement an ambitious plan to control the water use and development, including the Colorado River, as early as 1866. The Act of 1866 vested the Federal government with great control over rivers and their tributaries. The United States mission is to protect water rights for the public domain, mineral claims, homesteads, and unclaimed land.

In the Colorado River Compact of 1922, the states agreed to an essentially equal division of water between the Upper Basin states (Colorado, Utah, Wyoming, and New Mexico) and the Lower Basin States (Arizona, Nevada and California). In 1948, the Upper Basin states signed a compact dividing shares attributable to the Upper Basin or 7.5 million acre feet of an erroneously presumed 16.5 million acre feet. The Lower Basin States could not agree to a general division of the River's flow. Thus, in 1963, the United States Supreme Court, in Arizona v. California 373 U.S. 546 (1963), ruled that the Boulder Canyon Project Act apportioned 2.8 million acre feet of water to Arizona, 4.4 million acre feet to California, and only 300,000 acre feet to Nevada from a flow of approximately 13.5 million acre feet per year. The Compact also acknowledged that Mexico was entitled to some quantity of the flow of the Colorado River.

On April 11, 1956, Congress passed the Colorado River Storage Project Act (hereafter referred to as CRSP) authorizing the Secretary of the Interior to construct, operate and maintain CRSP units such as dams, reservoirs, powerplants, and transmission facilities, including Glen Canyon. The intended purpose of CRSP was to provide long-term regulatory storage for the Upper Colorado River Basin States allowing them to meet their obligations under the 1922 Compact, while utilizing their Colorado River water apportionments.

Currently, reservoirs in the Colorado River Basin can store approximately 60 million acre feet, or about four times the River's average annual yield. To meet the demands placed upon the Colorado River by the Compact, it has become increasingly necessary to conserve the annual flow in this large reservoir system, so supplies can be regulated for distribution throughout the year, and to ensure an adequate supply during low drought years. Lake Powell ensures that the Lower Compact states receive their allocated water.

The Navajo Nation has reserved water rights, with a priority date that relates back to the creation of our Reservation by the Federal government. The Navajo Nation entered into two treaties with the United States, in 1850 and 1868, that set aside an exclusive reservation for the Navajo Nation. Our water rights, however, must be quantified by a court of competent jurisdiction as part of a general stream adjudication, unless the Nation authorizes a settlement approved by Congress. Thus, the Navajo Nation, like the other water users in the region, is currently engaged in the general stream adjudication for a number of rivers and basins on or near the Navajo Nation, including the Colorado River.

In Arizona v. California, the Supreme Court also adjudicated the water rights of five Indian tribes. The Navajo Nation, however, was excluded from this litigation.

Two theories have been postulated to explain the exclusion of Navajo water rights. The first suggests that the Special Master limited his consideration of water rights on the mainstream of the river below Lake Mead. The other envisions the surrender of Navajo water rights in exchange for monetary consideration and the promise of beneficial economic development which made possible the construction of the Navajo Generating Station. Without Lake Powell, the Navajo Generating Station would not exist.

Moreover, in 1958, Congress authorized the exchange of Navajo Reservation land for public domain lands occupied by Navajo Indians. Glen Canyon Dam is located on former Navajo Reservation lands. The Navajo Nation still owns the mineral estate under Lake Powell. Lake Powell flooded Navajo religious and cultural sites, forever destroying their use by the Navajo people. The Navajo Nation has been deprived of its minerals and culture without compensation being paid by the Federal government.

In any event, Article III (a) of the Colorado River Compact, through it disclaims Indian water rights, appears to assume that Arizona's allocation includes 50,000 acre feet of Navajo water. The Navajo Nation is gathering information and data, but it also appears that 50,000 acre feet is a low-end number, leaving open the possibility that the Navajo Nation could divert its water rights both from the upper and lower compact states' allocations from one or more sites along the river.

The Navajo Nation's boundary border rivers in the States of Arizona, New Mexico, Colorado and Utah. Currently, Lake Powell may be the best feasible spot, from a economic and engineering perspective, to divert Navajo water for its own needs or for in-stream marketing elsewhere or both.

Lake Powell is capable of storing approximately 25 million acre feet and generating roughly 1,400 megawatts of hydroelectric power. Lake Powell also provides the Navajo Nation with recreation opportunities and much needed tourism dollars.

III. ISSUES AND CONCERNS OF THE NAVAJO NATION

First and foremost, the proposal to drain Lake Powell would create great hardship for the Navajo Nation in securing a readily accessible water supply. The proposal, if accepted, would literally destroy mining and agri-business concerns that provide most of the financial resources, the Navajo Nation expends to provide benefits to the members of the Navajo Nation. This would force the Navajo Nation to develop its ground water resources at little or no profit with the inherent risk that ground water quantity and quality would be irreversibly compromised. The Federal courts have ruled that an Indian nation is entitled to a significant level of water quality. If the Navajo Nation cannot obtain its water for its determined purposes, then, it seems all compact state's rights and private water rights are uncertain, since Congress and the courts have attempted to provide finality and repose to those who possess legitimate water rights. More importantly, the Navajo Nation would be deprived of its most feasible diversion site on the river.

Secondly, the Navajo Agricultural Product Enterprise and Navajo Indian Irrigation Project (also referred to NAPI/NIIP) would be jeopardized because it is largely dependant upon water availability from the mainstem of the San Juan River and its tributaries for farming activities. Water availability for NAPI/NIIP would be reduced, foreclosing the possibility of ever completing this project. Firm water supplies would not available for Eastern Navajo Agency municipal and industrial water supply projects using water from the San Juan River, such as the proposed Navajo-Gallup Pipeline. Water supplies for the Four-Corners Power Plant would be placed at risk, with direct adverse impacts to BHP's Navajo Mine. This means less revenue to the Navajo Nation, including less royalties, less tax receipts, and fewer jobs. Water supplies for the Navajo Power plant at Page would be lost, with direct adverse impacts to Peabody Western Coal Company's Kayenta Mine. This again, means less revenue to the Navajo Nation, including less royalties, less tax receipts and fewer jobs. The Navajo Nation is solely dependant upon jobs, royalties, and tax revenues generated from these mines and enterprises for its survival. Firm water supplies would not be available for Western Agency municipal and industrial water supply projects using water from Lake Powell. Peabody Western Coal company's Black Mesa Mine currently uses ground water for its coal slurry operation to the Mohave Power Plant. The alternative under consideration of using water from Lake Powell would be foreclosed. This would lead to greater hardship for the Navajo Nation and the Hopi Tribe, because the limited supply of ground water would continue to be used, perhaps eventually being mined (where the rate of use exceeds the rate of recharge). This would lead to greater pollution of the Navajo ground water aquifer, an 'event that surely would create breach of trust duty and violation of the Clean Water Act, among other environmental protection statutes, by the United States.

Third the Navajo Nation believes dangerous and toxic concentrations of selenium, salts, and mercury left behind from a drained lake and airborne by the wind would detrimentally affect the health and safety of the Navajo people living near Lake Powell.

Fourth there would be a significant cost increase for the public by substituting other resources to provide energy and electricity now or in the future by hydroelectric facilities on Lake Powell. More coal may have to be burned to maintain electricity at production levels. This may contribute to increased air pollution in a strictly regulated clean air environment.

Fifth since many, if not all, of the native species of plant and animal life have all ready been destroyed or affected by Lake Powell, non-native species would merely inhabit the vacant spaces. It would be prohibitively expensive to return the environment to original habitat, since it has all ready been drastically affected. Furthermore, the current endangered species of fish life would be at greater risk by encroachment of nonnative fish if Lake Powell were drained. For that matter, current Federal law protects the levels of in-stream flows so that wildlife, including native and non-native fish, are protected. It should also be noted that Federal environmental statutes provide a greater degree of protection to our natural and human environment than would the draining of Lake Powell. In fact, more life, property and investment-backed expectations would be destroyed and laid waste by draining Lake Powell than could be preserved by maintaining the status quo.

Since 1969, the National Environmental Policy Act requires the Federal government to engage in a consultation process among its various agencies and, under specific circumstances, with the public when it proposes to take significant Federal actions affecting the environment. In fact, it must produce an environmental impact statement (EIS) for major Federal actions that significantly affect the quality of the human environment. Thus, Federal statutes must be considered and enforced through this process. The study must also list alternatives to the proposed action. Modern statutes protect man, plants, and animals from unreasonable risks and threats based upon man's use of land and water resources.

Lastly, revenues from the tourism industry created by Lake Powell, the Glen Canyon area, and the Navajo Nation would be drastically affected. During the early years after the Lake is drained, there would be no tourist attraction. Even if the environment were perfectly reclaimed, there would be only limited tourist attraction appeal, since the recreation utility potential of the site would be greatly limited. In fact, even today, potential enjoyment of the resource by poets and writers seems unimpaired. Many members of the Navajo Nation sell food, beverages and jewelry to tourists. This accounts for most of their income each year.

Draining Lake Powell would absolutely destroy this means of income for the Navajo vendors and enjoyment by those wanting to see and experience Lake Powell. More significantly, the larger issues of economic development and the social welfare of the Navajo Nation are completely ignored.

IV. CONCLUSION

On March 20, 1995, the final draft EIS for the Glen Canyon Dam project was released to the public. The preferred alternative required the Bureau of Reclamation to substantially reduce daily fluctuations, included periodic habitat maintenance flows, beach/habitat building flows, adaptive management, flood frequency reduction, and establishment of a second breeding population of the humpback chub. This plan was approved by the public and the Secretary of the Interior.

This plan considers the impacts of uses in a river system that provides water and life to the environment. It carefully considers the needs of the human and animal community. It sincerely attempts to supply water resources to protect and nourish the community. The Sierra Club's proposal, conversely, merely views the destruction of Glen Canyon Dam and Lake Powell with justifications that benefit only a few members of the human community.

If Lake Powell is drained, then the Navajo Nation still desires to proceed with the settlement of issues with the National Park Service concerning the Nation's boundary along the Colorado River. The Nation still maintains that the shore line of the River, in the vicinity of Grand Canyon National Park, is the northern and western boundary of the Navajo Reservation which includes the centerline of the San Juan River as defined by our treaty. The National Park Service refuses to accept this even though an Arizona State Court made this finding when it dismissed a citation for fishing without a state license within Grand Canyon National Park to a member of the Navajo Nation, he did possess a Navajo Nation permit.

The draining of Lake Powell would do nothing but harm the economic and social welfare of the Navajo Nation. This would greatly complicate and further delay use of Colorado River water by the Navajo Nation. As such, the Navajo Nation respectfully requests that you reject the Sierra Club's proposal.

For more information contact. friends@lakepowell.org