Testimony of Howard D. Richards, Sr., Chairman Southern Ute Indian Tribe Before the Subcommittee on Energy and Water Development of the Committee on Appropriations United States Senate Washington, D.C.
March 24, 2004
Testimony of Howard D. Richards, Sr., Chairman Southern Ute Indian Tribe Mr. Chairman, thank you for the opportunity to testify today. I am Howard D. Richards, Sr., Chairman of the Southern Ute Indian Tribe. On behalf of the Tribe, I want to express our appreciation to you and Senator Campbell for your long-standing support for the Animas-La Plata Project (“ALP”) and the settlement of the Tribe’s water rights claims in southwest Colorado. We are grateful for the assistance you and the Committee have provided over many years. Without that support, we would be facing a long and difficult court battle to obtain the water rights to which the Southern Ute Indian Tribe is entitled. We believe that the construction of ALP and the settlement of the tribal claims through the development of additional water supplies is a much better choice for both the Tribe and its neighbors in Colorado and New Mexico. We are grateful that you both share that view and continue to work so hard to accomplish that goal.
Mr. Chairman, ALP is the heart of the settlement of the water rights claims of the Southern Ute Indian Tribe and will provide the Tribe and our sister tribe, the Ute Mountain Ute Tribe, with water to meet tribal needs, now and in the future. Since at least 1968, ALP has been a critical part of the Southern Ute Indian Tribe’s plans for the future. The Tribe has always recognized that it needs a firm and reliable water supply to create the permanent homeland which the Southern Ute Indian Reservation was meant to provide. While federal law promises Indian tribes the rights to use water to meet their present and future needs, tribes often are forced to resort to lengthy and bitter court cases to secure those rights. The recognition of tribal rights under federal law frequently results in significant water shortages for farmers, ranchers and towns in the surrounding area. The Southern Ute Indian Tribe has always sought to secure the water supplies which it needs without depriving our neighbors of the water supplies that they have used for many years, sometimes for many generations.
The Tribe has worked hard to make ALP and the settlement of the tribal water claims a reality. We have been fortunate to work not only with you and Senator Campbell, but also to have neighbors and state governments in New Mexico and Colorado who recognize the need for additional water supplies in southwest Colorado and northwest New Mexico, and who have fought equally hard for ALP. Our neighbors have acknowledged the validity of the tribal rights and have made many sacrifices to ensure the recognition of the Tribe’s water rights and the settlement of the tribal claims. The Tribe greatly appreciates those contributions to the settlement effort and the construction of ALP. As this hearing demonstrates, the construction of ALP is a complex and difficult task that requires the continued cooperation of many parties, as well as the federal government. Although our interests are not always the same, all of the parties who would benefit from the project have worked together to overcome many obstacles. Our interests have at times clashed, but we have always managed to find a solution that we could all accept. There are some issues which still must be resolved, but I am confident that we will continue to work together and continue to move forward with building and operating the project.
Both legally and practically, the construction of ALP is required to settle the tribal water rights claims on the Animas and La Plata Rivers. The average flow of the Animas River out of the State of Colorado is more than 700,000 acre-feet per year. But like most western rivers, the run-off varies greatly from year to year and takes place mostly in the springtime. Without storage, this water supply is of only limited use. Since the early part of the 1900’s, parties in southwest Colorado and northwest New Mexico have sought to develop this resource to meet the needs of their communities. As a result of those efforts, ALP was authorized by federal law in 1968. 1
Until 2000, the purpose of ALP was to meet irrigation, municipal and industrial needs in the area. As structured in the late 1970’s, the project was to provide water to users along the Animas River and, in addition, take water from the Animas River, store that water in Ridges Basin Reservoir, and deliver the water west into the La Plata Basin where it could be used for a number of purposes, including irrigation. When negotiations over the tribal water right claims began in the mid-1980’s, the Bureau of Reclamation had completed a “final” environmental impact statement, a definite plan report and obtained clearance for the full project under the Endangered Species Act,2 and other federal environmental laws.
Under the Colorado Ute Indian Water Rights Final Settlement Agreement,3 the construction of certain project facilities were required to settle the tribal claims on the Animas and La Plata Rivers. The Southern Ute Indian Tribe was to receive irrigation, municipal and industrial water supplies from the project. In addition, certain tribal agricultural delivery facilities were to be constructed. In 1988, Congress approved the Settlement Agreement and authorized the construction and use of the project as envisioned by the Settlement Agreement.4
Under the Settlement Agreement and 1988 Settlement Act, the two Ute Tribes could return to court to seek recognition of their water rights if the required project facilities were not completed by January 1, 2000. Section 10 of the 1988 Settlement Act directs that the “design and construction functions of the Bureau of Reclamation with respect to the Dolores and Animas-La Plata Projects . . .” were to be “subject to the provisions” of the Indian Self-Determination and Education Assistance Act,5 “to the same extent as if such functions were performed by the
Bureau of Indian Affairs.” The only caveat was the section would not apply if it would “detrimentally affect the construction schedules.” Throughout the 1990’s, the project sponsors and Reclamation sought to begin construction of ALP but repeatedly ran into environmental problems involving the Endangered Species Act and water quality issues related to the irrigation component of the project.
Following a series of public meetings over the fate of the project and the tribal water rights settlement, the Department of the Interior proposed resolving the tribal claims through the construction of a smaller project that would only serve municipal and industrial users and would reflect the depletion limits imposed on the project under the Endangered Species Act. Following the development of another environmental impact statement comparing the greatly reduced project to the non-structural alternative advanced by the project opponents, the Secretary of the Interior issued a record of decision finding, among other things, that the reduced project was the “environmentally preferred alternative” for settling the tribal claims.6
In 2000, Congress enacted the Colorado Ute Settlement Act Amendments of 2000 7 which authorized the settlement of the tribal claims through the construction of a smaller project that would provide the tribes and water users in Colorado and New Mexico with statutory established water allocations for municipal and industrial uses. The 2000 Amendments directed the Attorney General of the United States to file the necessary papers with the Colorado Water Court to extend the deadline by which the Tribes must return to court to secure their water rights. The Attorney General has asked the Court to extend that deadline until 2012.
The Southern Ute Indian Tribe has worked closely with the Ute Mountain Ute Tribe, Reclamation, and the other project sponsors over the past three years to build the smaller project.
Reclamation’s announcement last summer of the greatly increased cost estimate was a shock and a disappointment. For a variety of reasons, it is extremely important to build the project in a cost-effective and timely fashion. In particular, the failure to build the project on time would once more upset the settlement of the tribal water rights claims. It is also important that our neighbors receive project water at a reasonable cost, consistent with their expectations at the time that the 2000 Amendments were passed.
The Southern Ute Indian Tribe continues to participate on both the Project Operating Committee (“POC”) and the Project Construction Coordination Committee (“PCC”). In addition, the Tribe, through Sky Ute Sand and Gravel provides “batched” material for the construction of the project. The Southern Ute Indian Tribe has also worked with the Ute Mountain Ute Tribe on the cultural resources contract for the project. At the outset of project construction, the Southern Ute Indian Tribe, the Ute Mountain Ute Tribe, and Reclamation discussed the tasks that were required to complete the project and determined who would have the lead, who would provide input and who would provide oversight on each of those tasks. The Southern Ute Indian Tribe has not charged Reclamation for these types of planning and coordination activities under the Self-Determination Act, but has only sought reimbursement when it actually supplies a product, such as concrete, to the project. Tribal representatives worked with Reclamation, on behalf of the Tribe, when it was developing its report to the Secretary of the Interior on the factors that resulted in the increased cost estimates. These individuals have advised me that they believe Reclamation is working diligently to correct the problems that resulted in the increased cost estimate. As you know, the project sponsors were not aware of the issues associated the increased costs until they reached the crisis stage.
In our view, Reclamation has taken two useful steps to address the basic problems that existed with regard to project management. First, Reclamation is working to improve communication with the project sponsors. This effort has focused on developing a more formal means of communication about the issues facing the project, as well as increased emphasis on the monthly meetings of the PCC. Second, Reclamation has made it clear that Rick Ehat, a construction engineer in Durango, is charged with building the project. We have been told to direct our questions and concerns in the first instance to Mr. Ehat. We are encouraged by these new procedures and hope that they will improve communication and allow those who are directly affected to work with Reclamation to ensure that the project is built on time and in a cost-efficient fashion.
I want to emphasize the complexity of the tasks that face us in reaching those goals. Not only is the actual construction of such a project very complicated, there are a number of other obligations that must be met to complete the project on time. In particular, construction of the project requires substantial environmental mitigation both in the area and on related matters such as the environmental impact statement for the operation of Navajo Dam and Reservoir. These responsibilities require Reclamation to complete various activities and to consult with other federal and state agencies to maintain the construction schedule. Funding is also critical.
Without adequate annual funding, the schedule will be delayed and the cost of the project will increase further. In short, there is much to do, but working together, I am confident that we can meet the challenges before us and complete the project and the settlement.
Mr. Chairman, in closing, I want to emphasize the importance of ALP to the Southern Ute Indian Tribe. The Tribe wants to do whatever it can to accomplish the goals of building the project on time and in a cost-efficient manner. I would be glad to answer any questions you may have. Thank you.
Footnotes
1 See 43 U.S.C. § 620.
2 16 U.S.C. §§ 1531-44.
3 (Dec. 10, 1986) (“Settlement Agreement”).
4 Colorado Ute Indian Water Rights Settlement Act of 1988, Pub. L. No. 100-585 (1988) (“1988 Settlement Act”).
5 25 U.S.C. §§ 450 to 458bbb-2 (“Self Determination Act”) (frequently called “P.L. No. 93-638” or “638”).
6 Record of Decision, Animas-La Plata Project/Colorado Ute Indian Water Rights Settlement Final Supplemental Environmental Impact Statement July 2000 (Sept. 25, 2000).
7 Title III of Pub. L. No. 106-554 (Dec. 21, 2000) (“2000 Amendments”).
