During his more than 26 years in Congress and his time working as a lawyer in Arizona, Senator Jon Kyl was directly involved in groundwater management programs, surface water allocation settlements, and the development of a major water supply project, the Central Arizona Project (CAP). In this interview, Senator Kyl reflects on his accomplishments in Congress, Arizona’s response to the ongoing drought in the Colorado basin, and how Arizona can address the challenges of the future.
Irrigation Leader: Please tell us about your background and how you came to be in your current position.
Senator Kyl: My time as a lawyer in Phoenix was partially devoted to doing legal work for the Salt River Project. As a result of that, I learned a lot about water and water law. Also, Arizona had enacted the 1980 Groundwater Management Act (GMA), and I was directly involved in that as a lawyer.
I took that experience with me to Washington, DC, when I was elected to the House of Representatives and later to the Senate. I served in the House of Representatives in the days when the Arizona delegation was seeking funding for the CAP. Our entire delegation worked in a bipartisan way for that. When I was in the Senate, Arizona’s Indian tribes were making claims to Arizona’s water, which threatened and in some cases resulted in litigation. The parties that were involved, including the Indian tribes, the state, and private parties, decided to try to resolve some of those issues through negotiation and settlements rather than litigation. At a certain point, they asked me, as a United States senator who knew something about water law, if I would be involved in the negotiations and help them reach settlements. This made some sense, because with any Indian water settlement, there is a congressional component. Tribes cannot waive their water rights without congressional consent. In addition to that, most of the settlements involved developing projects that would allow the Indian tribes to take advantage of the water rights that they acquired in the settlements, and that meant an appropriation of money from the Congress. So, a fair amount of my time as a United States senator was spent negotiating some of those Indian water settlements.
Given all that, I have experience in groundwater management work with the State of Arizona, the allocation of surface water, and the development of the CAP. That’s how I gained my knowledge of water and water rights.
Subsequent to my service in the Senate, Arizona State University (ASU) created the Water Center through the Morrison institute. I’ve been sitting on the board of the Water Center and helping to develop policy ever since. I also lecture at ASU’s law school and in undergraduate classes. I do one lecture a year in the water law course at the law school.
Irrigation Leader: What are the moments of your congressional career you are most proud of?
Senator Kyl: When it comes to Arizona and water, my involvement in the Indian water rights settlements was significant. The first big matter that we resolved was the claim of the Gila River Indian Community and the Tohono O’odham Nation. That became the big template for further Indian water settlements. In effect, we created pools of water and money that could be used for subsequent settlements. We had some additional settlements after that.
Irrigation Leader: Aside from your background in water law and your substantive knowledge of the situations in question, what skills were most effective for resolving disagreements and building coalitions?
Senator Kyl: I won’t claim that I had any special skills—there were a lot of talented people involved in those negotiations, compromises, and settlements—but I can tell you that my role required gaining the trust of all the interested parties. As you can imagine, over the years, a lot of mistrust had built up, particularly because the Indian tribes in the state of Arizona had not been treated particularly well. Once we were able to establish a basis for trusting each other, the settlements were still hard, but they came together because there was an understanding that it was in everyone’s best interest to get them resolved and that it was worth compromising a little bit to reach a total settlement. That was basically the attitude that everyone had to arrive at at some point or other during the negotiations. The nice thing about water settlements is that while they require a 100 percent consensus, once you’ve got that consensus, it becomes relatively easy to sell them politically and to get the approval of the state legislature or of Congress. Reaching consensus among all the parties is hard, but once you’re there, you’ve got a shot at getting the settlement concluded and getting the different resources you need.
Irrigation Leader: What are the biggest water challenges facing Arizona today? Have they changed since the time when you were in Congress?
Senator Kyl: In some respects, they’re the same, but in other respects, new situations arise. They’re all based on the same basic proposition, which is that God isn’t making any more water, but there are a lot more people and industries that have a demand for water. As a result, there will always be conflict around water, and even when you think you have it all settled, issues still crop up that require resolution. The two big issues we face today are not unlike those of the past. First, in areas where the water supply comes primarily from wells that draw water from our aquifers, there are a lot of divergent claims on that water. Sometimes, there will be many landowners drawing water from the aquifer, and the ones who draw the most get criticized by those who draw less when they find that aquifer levels are continually going down and it is costing them more to pump it out. In addition, in Arizona today, large interests are purchasing formerly irrigated agricultural land for the water rights that come with the land, because those rights can then be sold or leased to others. A lot of conflicts arise because of that.
In addition to that, there are reductions in the available supply of Colorado River water. Every year, the states that receive Colorado River water need to develop ever-more-innovative solutions to managing the shortage. We went through the first round of the Drought Contingency Plan (DCP) with Arizona, Nevada, and California. That took a couple of years to negotiate and bring to fruition. Now, we’re facing yet another challenge, because the water levels in Lake Mead and Lake Powell keep dropping and are not being replenished fast enough to meet all the demands of the water users on the system.
The reduction in CAP water availability has also meant that the water banking that Arizona was counting on has not satisfied some of the requirements of the GMA. For example, in active management areas, developers and cities need to show a 100-year water supply for their developments to go forward. There are a lot of innovative ways in which that issue can be resolved, but most of those involve transfers of water from one point to another, and generally the people who own land in the areas from which the water is being transferred are not happy about it. Given the fact that almost 40 percent of the water in the central part of the state comes from the CAP and those supplies are predicted to keep shrinking, we will need to find a way to deal with that situation before the stress on the system becomes critical.
Irrigation Leader: Do you expect to see major shifts in how water is used, given the reductions in CAP deliveries?
Senator Kyl: Yes. I think it was generally understood that over a long period of time, irrigated agriculture would be the first to suffer deficiencies. In the CAP, there are different categories of water, and those categories have different priorities. The lower priority water is generally that which is available for irrigated agriculture, so when that water becomes unavailable, irrigated agriculture has to find an alternative. Sometimes, farmers can develop new farming methods, and in fact they have become much more efficient over the years. Sometimes, it requires them to return to pumping water from the aquifers. This is not a desirable solution, because those deep aquifers are generally not replenishable, at least over any future time frame that’s relevant to us, and the GMA put constraints on those withdrawals. To some extent, the DCP solves the problem of less CAP water by enabling farmers to once again pump from those aquifers, but I think that has to be considered a short-term solution. Over the longer term, augmentation or transfers that bring water in from elsewhere will have to make up for the deficiencies, and irrigated agriculture will always be the first sector affected, because its water rights are the least secure of the CAP water.
Irrigation Leader: Do you think there is any possibility that, in the future, water will be transported to the Southwest from the Mississippi basin or another area with abundant water?
Senator Kyl: No, I don’t. I think it would be virtually impossible to transport water from either the Mississippi basin or the Columbia River basin, which are the two that are generally proposed, because the people who rely on that water will resist it politically, and I think they would probably have the political clout to succeed in that resistance. Even within individual states, such as California, it’s difficult to work out arrangements by which water can be transported from where it mostly is to where it is mostly needed. Even within the state of Arizona, plans to transfer water from agricultural areas to municipalities like Phoenix run into a lot of opposition, because it would make the former areas much less capable of sustaining future development. Those mostly rural areas of the state don’t want to be shortchanged when the time comes for future development, and they resist the transportation of that water. No matter what region you’re talking about, it is very difficult politically.
Irrigation Leader: What advice do you have for stakeholders across the Colorado basin in light of the tier 1 cuts under the DCP?
Senator Kyl: The situations of the upper basin and lower basin states differ; they each have their own set of issues that they need to contend with. Then, within the lower basin, there are ongoing negotiations among Arizona, California, and Nevada. Then there are negotiations within the state of Arizona itself. Further, there are negotiations as interests with different priorities need to accommodate each other’s requirements, both for the good of the state as a whole and also for their own particular regions of the state and their own particular interests. By interests, I mean, for example, irrigated agriculture, commercial development, industrial development, mining, and so on. The advice I have for the stakeholders is to be knowledgeable about what’s going on. You need to be mindful of what your future requirements are going to be and the challenges that you will need to face, and then you need to be willing to sit down with all the other stakeholders and try to work out solutions. The advantage that Arizona has had in the past is that we’ve had that leadership from both parties—this is hardly ever a partisan issue. We’ve had leaders who were willing to sit down, to recognize that we had a problem, and to work on solutions to the problem before it became a crisis. So in Arizona, even though we’re an arid, drought-prone state, we’ve never had a water crisis, because we worked through our issues and found a way to accommodate everyone to at least some extent. Now, we’re going to have to do the same thing with the two primary challenges that I mentioned a moment ago.
Irrigation Leader: What advice do you have for state and federal legislators for making effective and successful water policies that confront issues before they become crises?
Senator Kyl: Leaders and legislators who have an interest in the subject or who represent constituents who do should try to become somewhat knowledgeable about the issues. You’re never going to become a water law expert on the level of some of the lawyers who work in the field, but there aren’t that many water law experts. If you’re a legislator, for example, learn enough to know the questions that you need to ask and then ask the experts. There are experienced water lawyers and water managers who can help answer those questions. Obviously, they will represent different points of view, so you can’t just rely on one group. As a legislator, you also have to think about the good of society as a whole, not just that of your own constituents. As a stakeholder, you have to think about the same thing. In addition to the people you work for, you need to think about the long-term interests of the state, because in most cases, the people you work for are going to be influenced by that, too. A certain amount of what the founders of our country called civic virtue needs to be applied here. That is the idea that, in addition to representing a particular group of constituents, you should also think about what’s good for the entire populace—in this case, all of the people of the state of Arizona—in negotiating solutions that work for everyone.
Irrigation Leader: Is there anything you would like to add?
Senator Kyl: We’ve talked about problems, but we haven’t really talked a lot about solutions. At the end of the day, the only solutions, besides being careful with what we have, are to augment our supplies, and that means bringing water to places where it is needed. Only a limited amount of that can be done, as I as I explained before, because of the needs of the people in the areas from which the water comes. In the really long term, things like desalinization are going to be required, but we need to put that day off as long as possible because the cost of that water will be an order of magnitude higher than the cost of water today, and that will mean that using it for certain things, such as irrigated agriculture, will not be economically viable. We want to do as much as we can before we have to rely upon something like desalinization.
Irrigation Leader: What is your vision for the future of Arizona?
Senator Kyl: Because of our wonderful climate and the other things that our area has to offer, Arizona will continue to be an attractive place for people to retire or to begin a life and career. The employment and educational opportunities are tremendous. We’re going to continue to see development in our state, and we should welcome that. But in doing so, we should also plan for a future that includes plenty of water, so that if anybody who is thinking about coming here asks the question, “Will there be enough?” we will be able to say, “Sure; we have planned ahead.” We who are here today have to begin to put the foundation in place so that we can answer that question honestly and successfully. There are answers. Some of them will require negotiation and compromise among the various water interests, but with good leadership, we can make that happen in the future just as we have in the past.
Senator Jon Kyl represented Arizona in the United States House of Representatives from 1987 to 1995 and in the United States Senate from 1995 to 2013 and in 2018.