Obtaining water is an uphill battle with empty buckets on New Mexico’s Native lands, where many live in situations similar to the Third World. Daily, the Diné (Navajo People) face situations to access water that test the limits of their bodies, minds and spirits.
The Winter’s Doctrine, a 1908 supreme court ruling, holds that when Congress reserves land for an Indian reservation, Congress also reserves water to fulfill the purpose of the reservation. Getting a legal seat at the table for discussions about any Native water issue or crisis is a challenge. Water’s transit to Native land is further complicated by a lack of infrastructure and securing funding.
The demand for New Mexico’s scarce water is growing from oil and gas production, new industry development, population growth and from Tribal and Pueblo lands trying to adjudicate their reserved water rights.
The Navajo community of To’Hajiilee is named after a spring where one Navajo group ended their Long Walk in 1864. The To’Hajiilee Chapter is now a 2,000-resident-plus Navajo satellite community located outside Albuquerque. Some of the housing is near the Route 66 Casino exit off I-40, while the main community is about 20 miles farther west.
The water levels of the segment of Rio Puerco aquifer located beneath the village have dropped over the past decades to a point where five of the six groundwater wells have failed. Today, water no longer springs from the ground and To’Hajiilee has been trying for over 16 years to find a solution to their critical shortage of potable water. The Rio Puerco watershed is completely within the Middle RioGrande Underground Water Basin.
What water remains for To’Hajiilee isn’t drinkable: it's filled with corrosive dissolved solids, looks like orange juice, resembles coffee grounds and smells like rotten eggs. The sediment plugs the pump and corrodes pipes, causing expensive water system failure in a fraction of the equipment’s expected lifespan. People who drink the water end up at the health clinic, sick to their stomachs.
Residents often have to wait hours for trickling water to reach them so they can wash dishes and take baths. Clothing washed in the water ends up stained. COVID19’s critical need to have water to wash hands regularly and disinfect surfaces brought additional challenges to To’Hajiilee.
Currently, the community drives 30 miles into Albuquerque to buy fresh drinking water.
To’Hajiilee Water’s Walk Through Fire
In 2006, then Chapter President Tony Secatero signed a pipeline agreement between To’Hajiilee and Albuquerque Bernalillo County Water Utility Authority (ABWUA), however it was too costly and the project was put on hold. To’Hajiilee searched for a cheaper water source and considered desalinating brine water deep underground, but it wasn’t financially feasible.
The tide changed when, as a condition of its permit for Santolina, a planned community development, Western Albuquerque Land Holdings (WAHL; a subsidiary of Garrett Development Corporation, representing Barclays Capital Real Estate, a subsidiary of Barclays Bank out of London) began construction on a 3-million-gallon water tank and pump station west of Albuquerque in 2019. The infrastructure over the 50-year build-out for Santolina to provide water and sewer services was estimated at $600 million to the developer. As with similar developments, when completed, the water station and tank were transferred to the Water Utility Authority for maintenance.The water station brought the To'Hajiilee water trek to a connection site within 7.3 miles of the village.
The To’Hajiilee and ABWUA’s 2006 pipeline project suddenly became financially feasible after the water station was built. Easements across a narrow strip of land, similar to a ditch adjacent to power lines, were required from three parcels of private land for the project to succeed.
The Chapter received easements from two of the three landowners with the help of the Bernalillo Commissioners, but hit a wall on the third easement, which WAHL represented. What ensued was a back-and-forth process of communication with all the parties WAHL represented,and it took close to two years to reach an easement agreement. Local community became involved. Friends of To'Hajiilee and other New Mexican organizations protested and tried whatever they could to get WAHL to give the easement to the project.
Commissioner Steven Michael Quezada put together a task force to try to resolve the easement with WAHL. Commissioner Debbie O’Malley (District 1) proposed condemnation of the land; however, without enough votes it would become a long court battle.
Senator Daniel Ivey-Soto (D-Albuquerque) put forth a proposal to resolve the easement dispute with To'Hajiilee paying $2 million of its federal coronavirus relief money to upgrade water infrastructure on WAHL land in exchange for the easement.
“I told To’Hajiilee I didn’t know if I had the votes to condemn, which meant it could get tied up in courts,” O’Malley told The Paper. “They were worried that they were going to lose the COVID money if they didn't spend it by a certain time. They finally sat down with the developer and negotiated. The commission wasn’t involved,” O’Malley explained.
Ivey-Soto told The Paper in a recent interview that his opening proposal of $2 million was meant to get WAHL and To’Hajiilee to the table to negotiate and look each other in the eye. “The only thing I know is that what was paid was nowhere close to what my opening proposal was,” Ivey-Soto said.
“What most people didn't understand was that WAHL was actually in receivership,” Ivey-Soto explained. Receivership takes control of a property's management out of the hands of a borrower and, at the direction of a court, gives control to a neutral third party, the “receiver.”
WAHL had no interest in obstructing the provision of water, Ivey-Soto said, as long as there was an understanding that the primary purpose of that system was to provide for the residents, companies or people or whoever happened to be on the WAHL development over the years.
Souder Miller and Associates engineered the pipeline for To’hajiilee. The water will be delivered to To’Hajiilee during low-demand night hours, according to Ivey-Soto. That time may change depending on the use of the property in the future. A reservoir on the reservation will hold a 24-to-48-hour water supply that will be topped off as needed.
Once the easement was obtained, water pipeline funding for To’Hajiilee was approved in February 2022 from the state water trust and finance authority by the Albuquerque Bernalillo County Water Authority. Of the $7.7 million funding needed, $7 million dollars will come from a grant, with the Navajo Nation repaying nearly $800,000 as a loan.
So where is To’Hajiilee water’s Long Walk now? Souder Miller told The Paper. that To’Hajiilee’s infrastructure upgrade will be 100% complete by the time the pipeline starts construction late this summer.
“While of course we can’t predict the future, we do expect supply chain issues and labor shortages could certainly affect the project. We are working on solutions to try to mitigate this,” said Vice President Andrew G. Robertson P.E. Depending on shortages, Robertson anticipates completing the project 12-18 months after starting construction.
O’Malley has put $1 million aside from the American Recovery Act budget, in case of an overrun of the pipeline buildout expenses. “The last time I talked to the engineers, they said they didn't think they needed it. I haven't heard from them, but I will be circling back, as the costs of construction have gone up,” she said.
Ivey-Soto said Garrett Development recently bought the 53,000-acre property the pump station and tank are located on. According to Ivey-Soto the property is the largest single open development property in the nation , and Barclays Bank is now out of the picture.
“Jeff Garrett grew up as a New Mexican and has made an absolute commitment to To’Hajiilee about making this work and being a great neighbor,” Ivey-Soto said. “The speed at which Garrett has made sure the paperwork and things have been taken care of so that none of those things are barriers, I think demonstrates that he's actually following through on that commitment.”
Another Pothole on the Path
At this point the water flowing through To’Hajiilee’s completed pipeline will be adjudicated water leased from the Apache Nation, O’Malley and Ivey-Soto both said, as Navajo water rights are tied up in litigation.
The Navajo Nation has recently secured their water rights through the Winter’s Doctrine. In Nation v. U.S. Dep’t of Interior (Navajo II), No. 19-17088 (9th Cir. filed Feb. 17, 2022), the court ruled that western US Native American reservations hold reserved water rights. However, tribes must quantify their water rights through the adjudication process.
This decision impacts the Navajo Nation directly and could affect tribes considering whether to sue the United States for failing to quantify, consider or defend their water rights. The New Mexico adjudication process consists of seven phases. Costly legal proceedings can take an average of 25 years.
Leaders of the Navajo Nation signed an agreement in May 2022 with federal officials that formalizes the Utah Navajo Water Rights Settlement, which became law in 2020 as part of President Joe Biden’s bipartisan infrastructure bill. The Navajo Nation will receive $210 million from the federal government for drinking water infrastructure in San Juan County — the part of the 27,00-square-mile (71,000-square kilometer) reservation that lies in Utah.
The agreement acknowledges Navajo’s right to 81,500 acre-feet of Utah water and allows them to draw the water from aquifers, rivers or Lake Powell. The agreement also recognizes the Navajo’s right to lease unused water to entities not on the reservation and guarantees they won’t lose water rights if they don’t use the allotted water.
The Paper. spoke with Ahtza Dawn Chavez, executive director of the NAVA Education Project about indigenous water rights in New Mexico.
“ToHajiilee is a community, like many other Navajo communities, who live without electricity and do not have access to clean water,” Chavez said. “Water is a scarce resource. We have to start now allowing Indigenous communities to have some sort of voice at the table when it comes to preserving our water.”
Chavez advocates that the federal government should be investing in working with Native communities, Native leaders and people who are Native and understand water sustainability, to create infrastructure to have sustainable water use. “That is one of the ways that we will right a lot of wrongs,” Chavez said.
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