Water Bill Pulled Over Drought Plan Concerns

Feb 20, 2019

By Howard Fischer - Capitol Media Services

PHOENIX -- House Speaker Rusty Bowers on Tuesday withdrew his legislation that would have repealed state laws on when farmers forfeit their water rights -- legislation that the Gila River Indian Community said would cause it to withdraw from the multi-state drought contingency plan.

But it did nothing to finally get the tribe to sign the papers agreeing to provide Arizona with the 500,000 acre feet of water it needs to make the plan a reality.

After more than two hours of testimony Bowers concluded there may be legal problems with what he is trying to do. He said the measure needs to be recrafted.

That move, however, came only after some often angry statements where Bowers accused the tribe of "vengeance'' for pursuing the water rights claims he hoped his legislation would extinguish.

What happens now is unclear.

When Bowers introduced his legislation, Gila River Gov. Stephen Roe Lewis canceled a meeting where the tribal council was supposed to approve providing the state 500,000 acre feet of water between now and 2026. That is a key part of the state's plan to deal with the fact that its allocation of water from the Colorado River is being cut.

But Lewis told Capitol Media Services late Tuesday that the decision by Bowers to withdraw his bill is not enough for him to now ratify the deal. He wants some firm assurance that the proposal -- or some variant -- will not come back, ever.

But here's the problem.

The legislative session is expected to run through at least April, if not beyond, giving Bowers the opportunity to resurrect the plan. And Bowers, in a statement after the meeting, said he will continue to pursue a remedy he said will help hundreds of farmers in the upper Gila valley -- if not more statewide -- avoid having their water rights extinguished.

At the same time, Brenda Burman, commissioner of the Bureau of Reclamation, has given all the states in the Colorado River basin until March 17 to finalize their plans, not only on how they will divide up the reduced share of river water available but how they will deal internally with less water.

If that deadline is not met, Burman will begin the process of taking suggestions of how she should decide who gets the water. And Arizona, as a junior partner in existing water agreements, could end up with even less water than the multi-state drought contingency plan.

Lewis said there is one thing that could convince him to go ahead with the agreement by the March 4 deadline: some assurances by Gov. Doug Ducey that he would veto the bill if it reaches his desk.

To date, however, Lewis said he has received no such assurances.

And gubernatorial press aide Patrick Ptak said the governor is operating under the presumption that Bowers has thrown in the towel and "the issue is settled,'' something that the speaker has not actually said.

Hanging in the balance is that drought contingency plan and that March 4 deadline.

Projections show that Lake Mead will drop by next year to below 1,075 feet above sea level. That triggers automatic cuts in what can be taken from the Colorado River.

The multi-state deal would allow Arizona to take only about 2.3 million acre feet a year of water from the river beginning next year, about 18 percent less than what it now is entitled to draw. An acre foot is enough water to serve a typical family for a year.

Arizona's answer was its own internal drought contingency plan relying on a variety of schemes, ranging from paying the Colorado River Indian Community to leave water in Lake Mead to allowing Pinal County farmers to pump more groundwater to partly replace the Colorado River water they will be losing.

And then there's that 500,000 acre feet of Gila River Indian Community water that would be sold, at least indirectly to the farmers.

But Lewis canceled a scheduled tribal council meeting to ratify its part of the deal on hearing that Bowers wanted to repeal the state's long-standing "use-it-or-lose it'' law, spelling out that if farmers don't use their water for five years they lose their rights.

It had been largely ignored until the tribe began asking courts to declare that some farmers in the upper Gila valley had forfeited their rights.

In more than two hours of testimony, a parade of farmers from the upper Gila valley told members of the House Committee on Natural Resources, Energy and Water on Tuesday how the tribe is using that law to deny their ability to irrigate their crops. The result, they said, is that they cannot plant on some areas of their farms and are losing income.

Bowers acknowledged that many of the farmers did not irrigate for at least five years. But that often occurred because the river changed course and washed away the land that was being irrigated.

He said that the farmers then sought to divert those irrigation rights to other lands that, for different legal reasons, did not have rights. It was only then, he said, that the tribe decided to fight those efforts, citing the forfeiture law.

Shayne Earven, a fifth-generation farmer, said there are other reasons that farmers allow five years in between irrigating a field.

One, he said, is that to be certified an "organic'' farm the ground needs to be either "virgin'' or not farmed for five years. But the way the law is worded, doing that risks losing his rights to river water.

Whatever the reasons, Bowers lashed out at the tribe for asking courts to rule that the farmers, through the five years of non-use, forfeited their current and future rights. More significant, he suggested this was simply a matter of spite.

Bowes said that, pursuant to existing settlements, the tribe is entitled to 211,000 acre feet of water a year.

"They don't gain any money or any water through these (legal) actions,'' Bowers said. "I do not understand, outside of vengeance, if there's no water to be gained, why now?'' he asked.

But tribal attorney Don Pongrace said Bowers is wrong.

He said various agreements give the tribe the right to more water than it actually is receiving. And Pongrace said that for any gallon of water that make it down the river from the upper valley, the tribe gets to use about half.

On Twitter: @azcapmedia