House Speaker Rusty Bowers is blowing off a threat by the Gila River Indian Community to pull out of the drought contingency plan − and deny the state its water − if he pursues his own legislation on forfeiture of water rights.
Bowers, in a statement late Friday, said he always has intended to push ahead with the plan to determine how Arizona should deal with the loss of water from the Colorado River because of declining levels of Lake Mead. And that plan, he said, should include the tribe.
“But if they want to pull out of a deal that benefits both the state and the community, that is their choice,” Bowers said. “We hope they will reconsider.”
Bowers also took a slap at a letter sent Thursday by tribal Gov. Stephen Roe Lewis saying the council would not consider reviewing and signing its part of the drought contingency plan if Bowers pushes ahead with legislation the tribe believes interferes with its own separate claim to water rights from the Gila River.
“I think it is unfortunate and inappropriate that leaders of the community are now trying to leverage their support of the DCP on the defeat of this unrelated bill,” he said.
But House Minority Leader Charlene Fernandez said Friday it is Bowers who is acting improperly in pursuing what he calls an “unrelated bill.” She accused the speaker of trying to “provoke one of our most vital partners” whose 500,000 acre-feet of water between 2020 and 2026 is crucial to replacing some of the water the state will no longer be able to draw from the Colorado River.”
And the Yuma Democrat warned that if the deal falls apart, it will be federal officials who decide who are the winners and losers.
Sen. Lisa Otondo, D-Yuma, who was involved in crafting the drought contingency plan, was more direct, accusing Bowers of “sabotaging” the drought plan and saying what he’s trying to do is illegal.
Bowers, however, said he remains convinced that his HB2476 is needed, even if it means the tribe denies the state its water.
At issue are ongoing legal claims by the tribe over who has the right to water from the Gila River.
In essence, the tribe is relying on existing law which says if people do not use their water rights for a period of five years, those rights can be declared forfeited unless there’s a justified excuse. There even is a federal appeals court decision that says that use-it-or-lose-it law applies even to water rights first acquired prior to 1919.
HB2476, set for a hearing Tuesday before the House Committee on Natural Resources, Energy and Water, would eliminate that automatic forfeiture. Tribal attorney Don Pongrace said that would interfere with his client’s claims to that water from the Gila River.
Bowers said his legislation is justified.
“Dozens of rural families are being financially destroyed by ongoing litigation brought by the Gila River Indian Community,” he said. “I initiated HB2476 to stop this from happening in the future.”
And Bowers said that the tribe “will not receive one drop of water from their lawsuits.”
But Bowers, in his Friday comments, made no mention of the fact that if the tribe pulls out, the state loses that 500,000 acre feet of water it has committed to provide in exchange for $60 million from various state sources.
So far Gov. Doug Ducey has been silent on the Bowers legislation, with aides refusing to discuss the issue or whether the governor would promise to veto the bill if it gets to his desk. Instead their only comment is that Ducey is focused now on getting the necessary federal approval for the multi-state plan.
The Democrats are not so reticent.
“It is absolutely unfathomable that the speaker would go out of his way to provoke one of our most vital partners in a delicately negotiated drought contingency plan and threaten to undermine Gila River Indian Community water rights that were settled over 15 years ago,” said Fernandez. And she said Bowers is mistaken if he believes he can push through his legislation and still count on the tribe to provide water for the plan.
“Gov. Lewis was crystal clear that undermining the community’s water rights in another region would negate its ability to participate in the DCP,” Fernandez said.
She also reminded Bowers of the March 4 deadline set by Bureau of Reclamation Commissioner Brenda Burman for all states to have completed their plans. Burman said if the deadline is not met she will start preparing her own plan for how to divide up the reduced amount of water available among all the states in the Colorado River basin.
That could result in Arizona getting even less water than the multi-state deal on the table, particularly as existing federal laws and agreements give this state a lower claim to the water than other states. And the big losers in that are likely to be Pinal County farmers who have the lowest priority for the water that will be available.
“I don’t know what the speaker hopes to accomplish with this,” Fernandez said. “But if it’s federal control of our drought contingency measure and the destruction of our Central Arizona agriculture economy, it looks like he’s on the verge of getting it.”
“Speaker Bowers’ audacious flip from supporting the DCP to sabotaging it and his further pursue of this legislation risks invalidating the DCP and putting Arizona’s water future in the hands of the federal government,” she said.
Otondo also said that what Bowers wants to do is “clearly unconstitutional.” She cited a 1999 ruling by the Arizona Supreme Court which said that the question of whether someone forfeited rights to water is determined “on the basis of the law existing at the time” and not on subsequent changes in that law.