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000751 STATEMENT OF GALE NORTON ATTORNEY GENERAL OF COLORADO ON S.B. 1771, COLORADO UTE SETTLEMENT ACT AMENDMENTS OF 1998 JOINT HEARING BEFORE THE SENATE COMMITTEE ON INDIAN AFFAIRS AND THE ENERGY AND NATURAL RESOURCES SUBCOMMITTEE ON WATER AND POWER UNITED STATES SENATE June 24, 1998 S.B. 1771 implements an agreement among the Southern Ute and Ute Mountain Ute Tribes, the Navajo Nation, an water users in Colorado and New Mexico to build a modifred Animas-La Plata Project that will satisfy the Ute Tribe reserved water rights claims for about one-third the cost to federal taxpayers of the original project. This legislati. responds to previous fIScal and environmental criticisms of the original project; provides for state and local cost- sharing; and recognizes that the responsible federal agencies have fully complied with the Endangered Species A( the National Environmental Policy Act, and the Clean Water Act. Most importantly, however, S.B. 1771 is acceptab to the Ute Tribes as a final settlement of their legal claims to water from the Animas and La Plata Rivers. If S.B. 17 is not enacted, the State of Colorado, the United States, the Ute Tribes, and southwest Colorado water users appel destined for years of expensive and acrimonious litigation. The Animas-La Plata Project's primary purpose is to settle litigation by the United States asserting reserved water rights on behalf of the Southern Ute and Ute Mountain Ute Tribes. Over a decade ago, both the United States at. the State of Colorado made a solemn commitment to the Tribes to build the project so that the Tribes would have water to meet their needs. The Tribes have rejected all proposals to give them money instead of water, and decad of studies have shown that this project is the only feasible way to provide that water. S.B. 1771 allocates to the Ute Tribes almost two-thirds of the depletions presently allowed by the U.S. Fish and Wildlife Service's biologicalopinil. for the project, issued under section 7 of the Endangered Species Act. It is important to understand the history of the federal and State of Colorado commitments to build Animas-La Plat In Winters v. United States, 207 U.s. 564 (1908), the U.S. Supreme Court held that when the United States enters in a treaty with an Indian tribe creating a reservation, it impliedly reserves suffICient water to irrigate the reservation lands. These reserved water rights have a priority date based on the date of the creation of the reservation, which makes them senior to non-Indian water rights appropriated after the reservation was created. Based on the Winte doctrine, in 1976, the United States Department of Justicefiled reserved water right claims in Colorado water COUl on behalf of the Ute Tribes. The original Ute Reservation was established by treaty in 1868 (with some later additions), making the claimed rights the most senior rights on the river.2 Thus, if successful, the Tribal claims W014 have preempted the vested water rights of non-Indian water users. In the more water-short river basins, such as tJ La Plata River basin, the claims had the potential to exceed the entire available water supply, thereby drying up fam; farms and ranches that have existedfor generations and wreaking havoc on local economies. 1 The Department of Justice originally filed the claims in federal district court in 1972. The United States Supreme Court ruled that, under the McCarran Amendment, 43 U.S.C. ~ 666, the case should be heard in state court. Colorado River Water Conservation Vist. v. United States, 424 U.S. 800 (1976). 2 The United States actually claimed a priority date oftime immemorial for the original reservation, but an 1868 priority would have the same practical effect.