The Department of the Interior, in 1975 as trustee, filed suit on behalf of the Papago Indians to settle this problem in the courts. The defendants in that suit are: the city of Tucson, the State of Arizona; six mining companies, a farming enterprise; and 1600 other private water users in the basin. We feel the settlement act should include the defendants in the suit and that they should share in the costs to provide the Papago Indians with water rather than the general taxpayer. As a solution to the problem of competing water rights, a requirement that the Federal Government shoulder the burden of the settlement by supplying additional water supplies is clearly the most expensive Federal alternative. The people who are responsible for the existing water supply situation not only are not required to contribute to the settlement but would be permitted to continue their full use of surface and ground water in an area where both are already oversubscribed. The exception is that the city of Tucson could sell 28,200 acre-feet per year of reclaimed effluent water to the United States at cost but without profit. However, if the city agrees to contribute and fails to supply the water, the Federal Government would be required to supply replacement water at Federal cost or to pay damages to the tribes for any water not delivered by the city. The Secretary also may be required to provide additional facilities to insure that the reclaimed water is suitable for agricultural use. The Federal Government, rather than the principal existing users, would be responsible for delivering the effluent provided by the city of Tucson to the reservation. These costs could be substantial, depending on the means used to move the water to the tribe.

In these bills, the Federal Government also would be responsible for delivery of Central Arizona Project water, and in the event water is not delivered to the tribe, the Federal Government would be required to pay damages to the tribe, even though other tribes in the service area would be required to take shortages. We feel that these bills set new precedents and impose new liabilities on the Federal Government. We are presently involved in 56 water adjudication actions in approximately a dozen different river basins. For the Federal Government to pay costs similar to those in this bill without participation by the responsible nonFederal parties, would be costly and inequitable.

These bills could establish highly undesirable and costly precedents for settling those actions. As for the non-Indian interests against whom claims are currently being litigated, these parties would be free from liability even though they would not contribute to the costs of the settlement.

These bills guarantee, in law, the delivery of 37,800 acre-feet per year of Central Arizona Project water, for which the tribe now has a contract. No other Arizona tribe has such an ironclad guarantee. In fact, our contracts with the other Arizona tribes require a reduction in water delivered when dry periods occur as is required from other project users. In addition to the CAP allotment, the tribe is also guaranteed the additional 28,200 acre-feet of reclaimed water. We estimate that the cost of these bills to the Federal Government could be $100 to $200 million dollars not including liabilities or costs to deliver Central Arizona Project water.

Our main concern is that the Federal Government and the general taxpayer are underwriting most of the cost of this proposal.

Mr. Chairman, this completes my statement. I would be pleased to answer any questions you may have.

Senator GOLDWATER. Well, I might remind you that every dime that has ever been spent for reclamation in the State of Arizona has been paid back; so, you do not have to worry about that because it will be paid back and I am getting a little tired of people knocking reclamation. If we did not have reclamation, we would not have food; we would not have the West, and we must put that water to use.

I have three questions for you. Does the administration support negotiated, out of court settlements on Indian water rights issues, which necessitate legislation in lieu of court mandated settlements? Dr. CARRUTHERS. I think this administration would support negotiated settlements that would require legislation, yes.

Senator GOLDWATER. What role do you feel the Department of the Interior should play in the above resolutions?

Dr. CARRUTHERS. In this particular instance, we have already litigated. Now, our problem with your bill simply is the disassociation of cost and benefits from what has happened in the water situation in New Mexico. That must be corrected before we can assume any kind of responsibility for this legislation.

Senator GOLDWATER. Is the Department of the Interior willing to cooperate and work with Congress in trying to obtain the most fiscally reasonable method of affluent delivery as stipulated in section 7 of the Senate bill?

Dr. CARRUTHERS. Mr. Chairman, we are always willing to cooperate with the Congress. I do not believe that it should be the responsibility of the Federal Government to have the affluent delivery.

It should not be a cost to the Federal Government; it should be a cost to those people named in the litigation, the city of Tucson, the water users. Some of the other parties to the litigation should be responsible for that.

Senator GOLDWATER. Any questions, Moe?

Mr. UDALL. No. I do not have any questions, Mr. Chairman. I would like to add though, that there are major contributions being made by the local parties.

We are finding that wastewater is a very valuable asset. You find it in Phoenix and all over the West. And, the city of Tucson is contributing to this settlement water which it otherwise owns and could control and could probably get some pretty good money out of it.

The city of Tucson has done that. The other water users in the valley are giving up their rights to some ground water from our basin, and they support the Secretary's decision to allocate central Arizona project water to the Papago tribe.

I am willing to work with the administration to maybe make some changes in the bill if equitable adjustments could be made that would provide for a little more local participation, but the local water users have participated in this settlement.

I have never seen a situation in which statesmanship was exercised by so many groups. It is a formula for argument and disaster to throw the Indians and the mines and the city and the farmers and everybody in a room and say, "settle your water claims difficulty," but they did. And these Papago Indian leaders here have come under some criticism among their own people for having gone along with this.

This bill is a good deal for everyone and if we can work out some adjustments, look at the administration's complaints, I will be glad to sit down and work on that. I think Mr. Carruthers and the administration will meet us halfway and be willing to talk to us if we have some changes along the lines that you mentioned.

Dr. CARRUTHERS. Mr. Chairman, we are always pleased to cooperate in any way we can. We think the price of this settlement is excessive to the American taxpayers and, of course, if this committee would ask us, we would be more than willing to visit with you about that. Senator DECONCINI. Mr. Chairman.

Senator GOLDWATER. Yes.

Senator DECONCINI. I would, for the record, point out that the risks, in my judgment, are so much greater if we litigate as to what the taxpayer very likely might have to pay on awards the court could easily hand down from the trust or lack of meeting the trust responsibility

from the Government's point of view. My only quarrel with the administration, and it goes back to the last administration even more so than this one, is the administration's failure to come up with any legislation to settle this matter. It was because of Congressman Udall, and you and I on this side, that we even have a bill that is before us to find a settlement. So, though the administration may oppose it, I am very disappointed they have not come up with any bill or indicated that they want to go out there and get into the trench and get their hands dirty trying to put everything together as has been done here, at least on the local level. I think this is a little bit late to come in and say, we do not like this because of the cost involved, when there has not been anything really put before us.

Senator GOLDWATER. I agree with you and that is what many people fail to realize; that these projects are not dreamed up overnight. All the lives of each one of us from Arizona here have been spent in attempting to get water on our arid land and there is no more arid land in Arizona than the land on which the Papago Indians live.

I have a document, the question of "What are the costs of S. 2114?” which I will make a part of the record.

[The document follows:]

WHAT ARE COSTS OF S. 2114

Since Senate bill doesn't have Rhodes amended re: Tucson Aqueduct-there are no costs associated with CAP water. Already signed contracts obligate the Secretary to build whatever facilities are necessary to deliver water to reservations. So any costs attributed to CAP are a red herring; they will be paid anyway, whether or not settlement occurs.

The possible costs are effluent delivery; the trust fund and possible damages. Effluent delivery-CBO estimates maximum 50 million-that is the most expensive solution: direct pipeline. None of parties wants this-all anticipate that best solution is for Tribe to lease or swap effluent with farmers to north of Tucson. Farmers are now negotiating with city to acquire effluent during years before the settlement takes place . . . the locals will build their own delivery system no federal cost. The farmers hope to then agree with the Tribe to take their effluent later, in exchange for non-Indian agriculture water, or groundwater. Although these talks are just beginning, they indicate a real interest on the part of the farmers, in use of effluent to firm up their water supplies. Alternates to the direct delivery system will be much cheaper: the preceding paragraph indicates that if farmers built their own pipe, costs to United States would be minimal. Sale by the Tribe right at treatment plant would cost almost nothing.

Trust fund-the 15 million trust fund is to generate income for use by Tribe to develop their water. The corpus is not turned over to the Tribe. CBO says the 15 million is not a budgetary outlay (and.: has no impact on deficit)

Damages-Bill provides back-up for CAP: to make supply firm. Argument that no other CAP users get a "perpetually firm" supply is applicable: all nonIndian water users will go back to groundwater. The Papagos can't do that: the bill limits them to 10,000 AF. The Tribe is giving up all other water rights, including Winters rights and aboriginal rights. They must be assured a firm supply in return.

Estimates from Tramjoy Corey (consultants to Tribe) say there will be no shortages of CAP water for Tribe and M and I users for at least 20 years. After 20 years, estimated shortages are about 6,000 AF/yr. That 6,000 AF could be obtained by purchase and retirement of 1,200 acres of farmland (cost at $2,000/ acre: a one-time cost of 2.5 million) or at damages rate of $50/AF (CBO estimate cost), $300,000 annually.

The United States will not actually pay any damages on the effluent (even though bill says it's a fall back). The city will contract with United States to deliver effluent. If city fails to deliver, they should pay damages. United States can make this clear in contract.

If city does provide effluent-then United States has to deliver. If United States fails to do so-then it should pay damages, and that is the situation the bill provision is aimed at.

A final cost is the O. and M. for the CAP deliveries. Under the CAP contract. the Tribe would pay O. and M. The bill provides that the United States should pay the O. and M.: the theory is that the water under the settlement is in lieu of the Tribe's reserved water. Reserved water is that which was present on or under the reservation when it was established: no O. and M. would have been required. O. and M. is at 1.5 annually.

I seriously doubt the 100.200 million figure. It's hard to pin it down, without knowing the manner for delivery of the effluent, but the known costs are:

15. trust,

1.7 annually O. and M.,

2.5 possible damages,

50 CBO maximum for effluent delivery.

The local community is contributing the actual water; the contribution of the United States is to deliver it.

Senator GOLDWATER. Do we have anyone from the Papago Tribe who would like to say a few words?

Mr. NORRIS. I have a statement, Mr. Chairman.

Senator GOLDWATER. Would you state your name so that the reporter can get it?

STATEMENT OF MAX H. NORRIS, CHAIRMAN, PAPAGO TRIBE OF ARIZONA

Mr. NORRIS. My name is Max H. Norris, chairman of the Papago Tribe of Arizona. I have the water commissioners that are with me today and a couple from the GU-VO area.

I have a prepared statement. I will put it in for the record as soon as I get it in.

I certainly appreciate the opportunity to be here today with every

one.

Thank you.

Senator GOLDWATER. Your prepared statement will be made part of the record at this point.

[The prepared statement, along with tribal resolution No. 155–81 follows:]

PREPARED STATEMENT OF MAX H. NORRIS, CHAIRMAN, PAPAGO TRIBE OF ARIZONA

Mr. Chairman, the Papago Tribe of Arizona supports the settlement of its water-rights claims as proposed in S. 2114 and H.R. 5118. We appreciate the support Congressmen Udall and Rhodes and Senators Goldwater and DeConcini have given to the principle of a negotiated settlement of these claims-a settlement that will benefit all of the people of Pima County and the government of the United States.

The Papago Tribe and the major water-users in Pima County-the City of Tucson, the mines, and the agricultural interests-have worked hard for five years to hammer out a difficult compromise. The bills before this Committee are the result of this labor.

S. 2114 contains certain amendments to H.R. 5118 that the Tribe has recommended to the Senate sponsors of S. 2114.

First, sections 3(a), 4(e) and 5(b) of the Senate bill stipulate that the Bureau of Reclamation rather than the Bureau of Indian Affairs shall be the lead agency for implementation of the construction and water-delivery provisions. This change is intended to simplify implementation of the legislation.

Second, Section 4 (c) of S. 2114 requires that, if the Secretary finds he is unable to acquire and deliver the quantities of water provided for in the Tribe's CAP contract (37,800 acre feet), he shall pay damages in the amount of the actual replacement cost of the water not acquired and delivered. The corre

sponding Section in H.R. 5118 limits the measure of damages to the then prevailing rate for municipal and industrial water from the CAP. The Tribe objects to the House language on the grounds that, owing to the fact that CAP water is highly subsidized, the damages provided for in the House bill would be substantially below the market value of replacement water and, thus, inadvertently penalize the Tribe. Without this change, the Tribe will oppose the settlement. The Papago Tribe recommends that S. 2114 be further amended to clarify its intent, to extend the deadline for settlement, and to extend the Statute of Limitations for Papago claims arising from depletion of its water supply by non-Indian water users. The proposed amendments a noncontroversial. They are attached to my written statement.

In order to meet the concerns of members of the Gu Vo District, the Papago Tribe requests that the Committee Report clarify certain aspects of the legislation that can lead to misunderstandings among the Papago people. First, the Report should make clear that the legislation only affects the water rights of the San Xavier and Schuk Toak districts and has no effect on the water rights of any other district of the Papago Tribe. Second, it should make clear that reimbursable construction costs associated with the delivery and distribution system and deferred under the Leavitt Act will be charged only against the lands in the San Xavier and Schuk Toak districts that receive water and not against the lands in any other district. Third, the Report should indicate that nothing in the Act requires any district to accept income from the trust fund. Mr. Chairman, in closing, the Papago Tribe takes issue with the cost estimates furnished to the Congress by the Department of the Interior in a document sent to the House of Representatives in late February. We have furnished Committee staff with a copy of this document. We note, as an example, that the Department estimates the cost for the Indian distribution system to be $16 million higher under H.R. 5118 (and, therefore, under S. 2114) than the cost under the Colorado River Basin Project Act. It attributes this supposed increase to the cost of subjugation and on-farm distribution. In fact, the subjugation costs under these bills are an obligation of the Tribe, not the United States; and the added cost for on-farm distribution is approximately $700,000.

We deeply appreciate your consideration of our rights, our needs, and our

concerns.

RESOLUTION OF THE PAPAGO TRIBAL COUNCIL (H.R. 5118-WATER BILL)

RES. NO. 155-81

Whereas, Non-Indian surface water diversion and/or groundwater pumping near or bordering the San Xavier Reservation, the eastern portion of the Schuk Toak District, the Chui Chu area of the Sif Oidak District and the Gila Bend Reservation has resulted in the lowering of groundwater tables, the compaction of subterranean lands, the periodic flooding of land and the deterioration of water quality, all in derogation and to the detriment of the rights of the Papago people and its members; and

Whereas, the United States and the Papago Tribe and certain allotment owners, in their own right and on behalf of the Papago Tribe and individual allottees of the San Xavier District, filed suit in 1975 in the United States District Court for the District of Arizona (respectively Cause No. CIV 75–39 and CIV 75–51) seeking, among other remedies, a declaration of their rights in and to the use of surface and groundwaters; damages resulting from the use of surface and groundwater in derogation of their rights; and injunctive relief to prohibit withdrawals of surface and groundwaters of the Upper Santa Cruz Basin; and Whereas, the Papago Council did appoint a Water Commission made up, among others, of members residing within the San Xavier, the Schuk Toak, the Sif Oidak, and the San Lucy Districts, in order to review and study all available materials and data relative to said water basins, and to negotiate and develop a legislative settlement of their respective water rights claims in said Basins, and to conduct public hearings in the Districts; and

Whereas, on the 14th day of February, 1980, the Papago Tribal Council passed Resolution No. 10-80, wherein it authorized and approved the negotiation and development of a legislative settlement of the water right claims of the Papago Tribe and its members in the water basins on, near or under the San Lucy, San Xavier, Schuk Toak and Sif Oidak Districts by means of a Congressional bill