20

1 be managed by the Secretary of the Interior through the

2 Bureau of Land Management.

3

4

5

ESTABLISHMENT OF TRUST FUND; EXPENDITURES FROM

FUND

SEC. 9. There is hereby authorized to be established

6 trust fund for the benefit of the Papago Tribe in the amount 7 of $15,000,000 to be invested by the Secretary in interest 8 bearing deposits and securities including deposits and securi9 ties of the United States. The income accruing on such de10 posits and securities may only be used, pursuant to appropri11 ations legislation, for the subjugation of land, development of 12 water resources, and the construction, operation, mainte13 nance, and replacement of related facilities (including pump14 ing and power transmission facilities) on the Papago Reser15 vations which are not the obligation of the United States 16 under this or any other Act of Congress.

17

18

AUTHORIZATION OF APPROPRIATIONS

SEC. 10. Effective October 1, 1982, there are author19 ized to be appropriated such sums as may be necessary to

20 carry out the purposes of this Act.

21

22

COMPLIANCE WITH BUDGET ACT

SEC. 11. No authority under this Act to enter into con23 tracts or to make payments shall be effective except to the 24 extent and in such amounts as provided in advance in appro25 priations Acts. Any provision of this Act which, directly or

21

1 indirectly, authorizes the enactment of new budget authority

2 shall be effective only for fiscal years beginning after Septem3 ber 30, 1982.

4

5

SHORT TITLE

SEC. 12. This Act may be cited as the "Southern Arizo

6 na Water Rights Settlement Act of 1981".

Passed the House of Representatives March 4, 1982.

Attest:

EDMUND L. HENSHAW, JR.,

Clerk.

By W. RAYMOND COLLEY,

Deputy Clerk.

Senator GOLDWATER. I guess, Moe, we will start off with you. This is your baby.

STATEMENT OF HON. MORRIS UDALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA, AND CHAIRMAN OF THE HOUSE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS

Mr. UDALL. All right, Senator, I thank you and I am delighted to be here this morning. I have a brilliant, penetrating, prepared statement which will bowl over everybody.

[Laughter.]

Mr. UDALL. I will submit my statement for the record, and just say a few words here.

Senator GOLDWATER. Yes.

Mr. UDALL. I would also like to be permitted to add to your support, Senator Goldwater, and to demonstrate the broad support for this legislation by submitting a number of statements: a statement by Mayor Lewis Murphy of Tucson, who is an outstanding national mayor and a member of the other political party, but a man who has worked very closely with us.

Senator GOLDWATER. He was my intern once. That is what started him.

Mr. UDALL. That is quite a good point.

Senator GOLDWATER. That is what the turning point was.

Mr. UDALL. I also have here a letter from Anamax Mining Co., signed by Mr. Wyman, the president, strongly supporting this legislation; A letter from the Avra Valley Irrigation District of Marana, Ariz., signed by Ralph Wong, vice president, and also in strong support. A statement of George Atwood, who is chairman of the board and chief executive officer of the Duval Corp.; and a resolution of the County Board of Supervisors of Pima County relating to the support of the legislation S. 2114. I think, Mr. Chairman, those are the supporting documents that I wanted to submit.

Senator GOLDWATER. Do you have anything else you would like to

say.

Mr. UDALL. I would simply like to say to the Senate Select Committee that this is good legislation. It is an example of cooperation and federalism, I guess, in every sense of the word.

Tucson is one of the fastest growing communities in the country, as my colleagues here know. It has a serious water problem, probably as serious as any place in the country. There are two ways to handle Indian water claims. You can litigate them, which takes forever-I was talking to Senator Laxalt, and he told me there is a case in Nevada that has been going on for 50 years and they have spent $30 or $40 million, not for a drop of water, but for lawyers' fees and testimony and investigators, and the whole business of legal and court costs.

We, in southern Arizona, with the help of the congressional delegation, finally solved an Indian water problem over a 5-year period. We have a solution; we have a compromise. It will keep us out of court. It will settle the water future of Tucson so that people, the critically important people in industry and farming and our municipality will have a water secure future on which they can build.

So, we think S. 2114 is a good bill. It passed the House 311 to 50 a few weeks ago. It is a good sound piece of legislation. It is the way we ought to be going with these Indian claim problems, not only in the West, but in the East where we wrestle with some land problems. So, I would leave it with you on that basis, Mr. Chairman, and hope that we can get prompt action in this select committee.

Senator GOLDWATER. Thank you, Moe. The material you submitted will be included in the record at this point.

[The material follows. Testimony resumes on p. 64.]

PREPARED STATEMENT OF HON. MORRIS K. UDALL

The story of the Southern Arizona Water Rights Settlement Act is a classic: it is a story about people and water, and it began years and years ago.

I'm always reminding my colleagues that my district in Tucson and Pima County is special-to my knowledge, it's the largest city in the United States and one of the largest in the world that is solely dependent on underground wells for its total water supply.

All farming, all industry and the half-million people of Tucson are supplied with water from two basins that lie beneath the Tucson Valley.

Also located in that valley and using the same water are the Papago Indians. The Papagos, who are by heritage a farming people, live on two reservations in the Tucson Basin area: San Xavier, south of the center of town, and the Schuk Toak District, to the West and near our largest irrigation districts.

The San Xavier Reservation was established by President Ulysses S. Grant in 1874. The Schuk Toak District was established by President Woodrow Wilson in 1916. Both areas have a reserved water right of some kind, but no one has yet told the Tribe just exactly how much water they are entitled to.

Over the last several years, folks in my hometown of Tucson have become increasingly concerned about declining underground water supplies. Already, the land is beginning to crack as the water table drops. Water quality has been affected and well capacity has been reduced.

On top of this, in 1975, the Federal government, on behalf of the Papago Tribe, filed suit against some 1800 defendants in the Tucson area. The suit says that non-Indian water users have infringed the rights of the Papagos, and asks that those water users be enjoined from continued use of groundwater under Tucson. The defendants to the action include the City of Tucson, the University of Arizona, the Anaconda and the Anamax Copper Companies, the Pima Mining Company, the DuVal Corporation and major agriculture districts, to name a few. A decree by the court ordering the wells of these entities shut down would probably sentence the whole county to die of thirst. It would certainly have a serious impact on the mines near Tucson, which produced almost 25 percent of the nation's total domestic output.

The water users in my part of the country are confused and angry. They want to know why, after all this time, the Federal government is coming in and saying, yes, Papago Tribe, you have a right to water from the Tucson Basin and we're going to let a court decide who has to give up their water in order to supply yours

Federal judicial doctrine provides that when Indian reservations are set up, they are entitled to water. But the doctrine doesn't say how much water. You can understand how that has created some uncertainty out West.

The United States is trustee for the Indians, and as trustee, it has a duty to protect the Indians' water. In Tucson, up until the filing of this lawsuit, the Federal government took little or no action to protect the Papagos' water. And visible signs of diminishing supplies were apparent: the Santa Cruz River flowed on the surface of the reservation when San Xavier was first established. But eventually the Santa Cruz literally went underground and its riverbed dried up. The groundwater table has steadily decreased ever since.

The Federal government, meanwhile, was busily working against itself: on the one hand, it remained lax in protecting the Papagos' water, but on the other hand, it encouraged development of municipal, industrial and farming interests— all of which increased demand on water supplies.

The mines are a good example. South of Tucson there are four major mining operations. The DuVal Corporation mines for copper and molybdenum. This

company located in the Tucson Valley at the instigation of the United States, under the Defense Production Act, and relied on the government's assurance that they would have adequate water.

Since then, DuVal has brought and retired about 17,000 acres of farm land, in order to reduce the demand on the groundwater supply. Other mines have done the same. All together, some 50,000 acres have been purchased and retired from irrigation use.

The mines have also been at the forefront of studies and tests to determine whether it is feasible to reuse effluent in the mining process. They have voluntarily implemented water conservation by recycling water, recovering water from tailing operations and recapturing and reusing seepage.

After these examples of conservation and after the government invited them to Southern Arizona, the mines now are being told that they and other nonIndian water users must bear the entire burden for restoring the Indians' water supply.

In another striking example, a local farmer approached the Papago Tribe with an offer to enter into a long-term lease to sink wells, put in a distribution system, give preferential hiring treatment to members of the Tribe, and farm the reservation for 25 years.

At the end of that time, the farmer would turn over the whole works to the Tribe... wells, distribution systems everything. The Department of the Interior, as trustee, refused the offer. The municipal and industrial water users convinced the Secretary that intensive farming on the reservation would deplete the groundwater supplies available for other non-Indian water users . . . and that it was in the best interest of the whole community that the reservation not be developed for irrigation.

...

After decades of neglecting its trust duties, and particularly in light of the encouragement given the non-Indian sector of the community, and the reliance that has developed . . . it is unfair to ask that the entire burden of this settlement fall on this generation of Southern Arizonans.

Quantification of these Papago claims is the final piece of the picture for groundwater management in Southern Arizona. The roots go back to the CAP authorization when the Congress told us that Arizona would have to find a way to control irrigated agriculture. That meant that Arizona would have to come up with a statewide, comprehensive groundwater code . . . to reduce groundwater use and impose mandatory conservation measures.

Arizona did that. In 1980 the State legislature passed a tough law that prohibits irrigation of new lands, requires pumps to be metered, and will require conservation and reduction in water use. That is the price we paid for getting a Federal reclamation project.

In addition, for every acre foot of water that irrigators use from the CAP, they will be required to reduce their groundwater pumping by an equal amount. The goal of the management plan is to bring the most critical basins back into balance by early in the next century.

In order for this basin management plan to work, it is essential to determine the water rights of the Papago Tribe.

For more than four years, the major water users and members of the Papago Tribe have been negotiating to see if this conflict couldn't be resolved without spending years in court and thousands of dollars on court costs and attorneys' fees.

The settlement incorporated in S. 2114 provides that, in addition to CAP water the Secretary is already obligated by contract to deliver to the Tribe, additional water will be provided, at the expense of the local water users. This additional water will come from groundwater pumping and reclaimed water made available by the City of Tucson.

The bill leaves it to the discretion of the Secretary and it is very unlikely the direct pipeline will ever occur.

The kind of negotiated settlement that this bill contains is a far preferable alternative to other means of resolving these intense, emotionally charged water claims issues.

If voluntary settlements like this one are not pursued, the United States has little choice but to go back to court. And court can be very time consuming and very costly. The Department of the Interior tells me that in one water rights case in the West, the parties have been litigating for almost 50 years at a cost of $40 million in court costs and attorneys' fees. And now, in that case, the