The agency that runs the CAP is setting aside Colorado River water for new development that by all rights should go to the Tohono O’odham and other Indian tribes, the U.S. Bureau of Reclamation says.
In unusually strongly worded comments, the bureau accuses the Central Arizona Water Conservation District of defying a 2007 legal settlement giving the federal government the right to buy certain classes of Central Arizona Project water on behalf of tribes.
The bureau annually requests CAP water to help ensure the Tohono O’odham Nation has enough to serve as a backup during shortages. But the water district has often given the bureau less than it seeks, sometimes significantly less.
Some of that water improperly went to the Central Arizona Groundwater Replenishment District, in violation of the 2007 settlement, the bureau said. That’s a program of the water conservation district that recharges CAP water to help developers meet their legal requirement for an assured, 100-year water supply for new subdivisions.
The water district’s failure to follow the 2007 settlement “was a deliberate effort” to manipulate the workings of its water-allocation program to benefit the replenishment district, to the detriment of a U.S. program to ensure CAP deliveries to tribes, said the bureau.
The bureau typically acts as an agent for the tribes in CAP water-allocation matters. This time, it’s representing the Tohono O’odham tribe, which has had legal rights to CAP water since the 1980s, and the White Mountain Apache tribe, which is negotiating a water-rights settlement with the federal government.
“Particularly egregious” were the district’s 2016 decisions affecting how much water the bureau got in 2017, the federal agency said.
The water district issued a brief statement to the Star saying it strongly disagrees with the bureau’s allegations. But because these issues “are related to pending litigation, it is inappropriate to provide more detailed comment at this time,” water district spokeswoman DeEtte Person said.
The bureau sent the comments last November to the State Auditor General’s Office. At the time, the auditor’s office was conducting a special audit of the water district. The comments aren’t legally considered a public record by that office. They were obtained by the Star from another source.
In December, the auditor’s office released a report saying all the district’s activities were carried out within its legal authority. The audit didn’t mention the bureau’s comments. The auditor’s office can’t comment on the bureau’s allegations because its working papers and other files legally aren’t public records, said Jeremy Weber of the Auditor General’s Office.
Because it’s a felony offense for the auditor general’s staff to disclose restricted information, “I am unable to comment on information outside of the public report,” said Weber, the auditor’s office’s performance audit manager.
Speaking generally, the audit said the water-conservation district took and proposed actions and developed programs outside its core legal responsibilities. But a general counsel working on this review found “the district’s arguments for engaging in these activities are reasonable interpretations of various federal laws, state statutes, and contract provisions,” the audit said.
In a brief statement Friday, Tohono O’odham tribal Chairman Edward Manuel said, “Water is a precious resource and proper allocation is critically important to the Tohono O’odham Nation and all tribes. The nation is reviewing the relevant documents on this issue and is monitoring it closely.”
At stake in this dispute is a fraction of the roughly 1.5 million acre-feet of CAP water that the water district delivers to customers in the Tucson and Phoenix areas and Pinal County every year.
In total, the water project gave the bureau about 18,500 acre-feet less CAP water than it requested on behalf of tribes over six years ending in 2016. That’s equivalent to a little more than 10 percent of what CAP sells to Tucson Water every year, the bureau’s comments showed.
But more than raw numbers, what’s important is that the federal government has an obligation to deliver this CAP water to the Tohono O’odham and the White Mountain Apache tribes to meet requirements of the 2004 Arizona Water Settlements Act, said Leslie Meyers, the bureau’s Phoenix office manager.
The law guaranteed the Tohono O’odham and other tribes CAP supplies to meet longstanding water-rights claims.
Meyers declined to criticize the auditor’s office for not heeding the bureau’s concerns. Given the ongoing, intense dispute between the CAP and the Arizona Department of Water Resources over who controls water policy, “The federal government doesn’t want to get into the middle of that,” Meyers said.
She noted that the bureau’s comments came in response to questions from auditors — “It’s not something we just generated out of the blue.” The bureau continues to discuss this issue with the water district and has no plans to file suit, she said.
But Kathleen Ferris, a former Arizona Department of Water Resources director, took the audit report to task for what she called its faulty legal analysis. Agreeing with the bureau’s legal view, she criticized the audit for failing to even discuss this issue and the bureau’s concern.
By acknowledging that the water district had taken some actions outside its core legal responsibilities, but then dismissing that as a problem based on the water district’s analysis, “That’s like handing down a verdict in a trial after letting only one side argue its case,” Ferris said. “The result is an incorrect interpretation of the facts and the law.”
The bureau-CAP split is over Colorado River water that isn’t taken by the farms, cities and tribes both in Central and Southern Arizona and along the Colorado River that have subcontracts or other legal claims to it. The surplus is formally called excess water.
The bureau’s share was also reduced at times when the Colorado River wasn’t carrying enough water for everyone who wanted it, the federal agency acknowledged. The total amount of surplus water available has dropped significantly in recent years.
But in some years, such as 2012, the bureau didn’t get all the water it wanted while the replenishment district’s allotment matched or came close to its request.
This bureau’s comments came at a time when tensions were already high in Arizona over who gets this surplus water.
Cities, tribes and the state water agency have wanted much of the excess water to be left in Lake Mead every year to prop it up to avoid serious shortages.
CAP has resisted that, saying it doesn’t want to make such a guarantee for every year. A task force for the water district is now meeting regularly to try to resolve the dispute.
