TRIBAL FIRMING PROGRAM
The AWBA, as the agent for the State, is responsible for meeting the State’s obligations under the Arizona Water Settlements Act (AWSA), P.L. 108-451. Under Section 105(b)(2) of the AWSA, the State must:
- Firm 15,000 acre-feet of non-Indian agricultural (NIA) priority Central Arizona Project (CAP) water re-allocated to the Gila River Indian Community (Community)
- Firm 8,724 acre-feet of NIA priority Central Arizona Project (CAP) water re-allocated in the future to Arizona Indian tribes
- Assist the Secretary of the Interior (Secretary) in carrying out the obligations of the Secretary in accordance with Section 306 of the Southern Arizona Water Rights Settlement Act (SAWRSA). Specifically, the AWBA must assist in the Tohono O’odham Nation firming requirement by providing $3 million in cash or in-kind goods or services, including water.
The AWSA requires the State to firm NIA priority CAP water for a 100-year period (until 2108) during times of water shortages and to deliver the water in the same manner that water with a Municipal and Industrial (M&I) priority is delivered during water shortages. Based on the Indian Firming Study Committee Report, the total estimated volume of water needed to meet this requirement is 700,000 - 900,000 acre-feet: 450,000 - 575,000 acre-feet for firming the Community and 260,000 - 330,000 acre-feet for future settlements.
ARIZONA WATER SETTLEMENTS ACT
The 2004 Arizona Water Settlements Act settled longtime claims to water by the Gila River Indian Community and the Tohono O’odham Nation. A key provision within the AWSA is the provision for enacting State legislation creating an Indian Firming Program (Firming Program) for the Community and future Indian water rights settlements. The provision authorizes the Secretary of the Interior (Secretary) and the State of Arizona (State) to develop a Firming Program to ensure that 60,648 acre feet of NIA priority CAP water made available for re-allocation to Indian tribes shall, for a 100-year period, be delivered during water shortages in the same manner as water with a M&I priority is delivered during water shortages. Because the NIA priority water has a lower priority on the CAP system, in times of shortage this supply would be reduced or eliminated before M&I and Indian priority supplies are impacted. Therefore, in the case of reallocating NIA priority water to the tribes, the State agreed to increase the reliability of (firm) this block of water in times of shortage on the Colorado River.
The Secretary and the State further agreed to undertake specific firming responsibilities for the Secretary and the State. Of the 60,648 acre-feet, the Secretary has responsibility for 28,200 acre-feet, as required by the SAWRSA. The State agreed to increase the reliability of 15,000 acre-feet for the Community, consistent with the Settlement. Responsibility for the remaining 17,447 acre-feet, which is to be dedicated for future Indian settlements, was divided equally (8,724 acre-feet each) between the Secretary and the State. Therefore, the State’s total responsibility under this program is 23,724 acre-feet.
INDIAN FIRMING STUDY COMMISSION
In 2005, the Arizona Legislature created the Indian Firming Study Commission (Study Commission) to develop the Firming Program for Arizona. The 2006 Report released by the Study Commission describes the State’s obligation for Indian Firming and includes a summary of the Commission’s recommendations to the Arizona Legislature.
The Study Commission concluded that the AWBA, in cooperation with the Arizona Department of Water Resources (ADWR) and the Central Arizona Water Conservation District (CAWCD), is the most appropriate and best suited entity to fulfill the State’s obligations described in Section 105(b) of the AWSA. The Study Commission recognized that in order to fulfill this role, the AWBA would need to be provided with sufficient funding or the mechanisms to develop the funding necessary to implement the Indian Firming Program on behalf of the State and recommended that the Arizona Legislature provide the AWBA with appropriate funding to do so.
GILA RIVER INDIAN COMMUNITY
The AWBA, as agent for the State, must firm NIA priority CAP water for the Community when supplies are insufficient to meet demand.
In 2015, the AWBA and the Community entered into an intergovernmental agreement (IGA) that establishes an annual process to ensure that the AWBA's obligations under the AWSA are satisfied. The 2015 IGA identifies a process for meeting a firming obligation if the AWBA Ten-Year Plan indicates a water shortage is likely. The Ten-Year Plan is updated each year and included in the AWBA Annual Report. The IGA provides flexibility in how a firming obligation can be satisfied by offering alternative firming options. The AWBA has entered into two additional IGAs to enable use of the firming options identified. This includes an 2016 IGA for the development of Firming Credits and a 2019 IGA for the development of Intentionally Created Surplus (ICS) Firming Credits, allowing for an additional firming method.
In addition to the firming requirements, the AWBA was also required to deliver 15,000 acre-feet of water to the Community to establish the Southside Replenishment Bank. The Replenishment Bank may be used to fulfill obligations that might be created under the AWSA to protect the Reservation from off-reservation groundwater pumping (in the Southside Protection Zones). This obligation was satisfied in 2015.
In any year where a replenishment obligation is incurred within the Southside Protection Zones, the AWBA replenishment obligation may be satisfied in several ways including:
- Delivery of water to the Community for direct use or for underground storage and recovery within the reservation
- Extinguishment of long-term storage credits
- Debiting the Southside Replenishment Bank
The AWBA must satisfy a replenishment obligation by June 1 of the third year for an M&I obligation and fifth year for an irrigation replenishment. The entity responsible for creating the replenishment obligation must reimburse the AWBA by paying the actual or estimated water replenishment costs or by delivering water or long-term storage credits to the AWBA for an amount equal to the obligation. Repayment must be within one year.
WHITE MOUNTAIN APACHE TRIBE
The Claims Resolution Act of 2010, which includes the White Mountain Apache Tribe (WMAT) Water Rights Quantification Agreement (Quantification Agreement), was signed by President Barack Obama on Dec. 8, 2010. The Quantification Agreement requires that the AWBA firm up to 3,750 acre-feet per year of water until 2108. This obligation is part of the 8,724 acre-feet per year firming requirement identified for future settlements under the AWSA. The WMAT intends to lease the water made available under the agreement, thus the AWBA’s firming responsibilities will be to the lessees. The enforceability date of the Quantification Agreement is currently December 30, 2027.
On January 5, 2023, President Biden signed the Hualapai Tribe Water Rights Settlement Act of 2022. The Act settles the Tribe’s water rights claims in Arizona, including the right to divert 3,414 acre-feet per year from the Colorado River. The Act requires that the AWBA firm 557.50 acre-feet per year until 2108. This begins on the enforceability date, which is dependent on a number of conditions, but can be no later than April 15, 2029 (barring an extension).