On November 29, 2017, U.S. Secretary of the Interior Ryan Zinke and Mark Macarro, Chairman of the Pechanga Band of Luiseño Mission Indians (Tribe) formally executed the Pechanga Water Rights Settlement Agreement (Settlement Agreement), a Congressionally authorized pact that: a) settles competing claims involving the Rancho California Water District and the Eastern Municipal Water District, b) quantifies and protects the Tribe’s access to groundwater in the Temecula Valley area of southwest Riverside County, California and c) provides the Tribe with more than $30 million in federal funding to pay for water storage projects. The Settlement Agreement is the culmination of a contentious litigation and a decades-long effort by the Tribe to formalize its water rights and allocated share of the region’s increasingly valuable water supply.

History, Framework and Overview of the Settlement Agreement

The settlement arose out of the pending federal case, U.S. v. Fallbrook Public Utility District, which was filed in 1951 by the United States to adjudicate water rights in the Santa Margarita Watershed (Fallbrook Litigation). The Fallbrook Litigation eventually expanded to include all water users within the Santa Margarita Watershed, including three Indian Tribes (the Pechanga Band of Luiseño Indians, the Ramona Band of Cahuilla Indians and the Cahuilla Band of Indians).

In recent years, as southern California found the reliability of its water deliveries compromised by legal battles involving the Sacramento-San Joaquin Delta, the Tribe increased negotiations with Rancho California Water District (RCWD) and the Eastern Municipal Water District (EMWD) to resolve their competing claims to groundwater within the Santa Margarita River basin. Numerous legislators, including former U.S. Rep. Mary Bono, tried to facilitate a settlement between the parties; however, none of these efforts were ultimately successful, in part due to new requirements that called for extensive federal oversight of water rights settlements.

The Settlement Agreement was proposed as part of legislation introduced by Rep. Ken Calvert (R-Corona) that was approved by Congress nearly one year ago in December 2016 as part of the omnibus Water Infrastructure Improvements for the Nation Act (P.L. 114-322) (Water Improvements Act). The Settlement Agreement, along with the Settlement Act which was also enacted as part of the 2016 Water Improvements Act, together establish the Pechanga Settlement Fund and authorize the appropriation of approximately $3 million to be deposited into the fund to construct a storage pond. The legislation also authorizes the appropriation of approximately $26 million, with nearly $4 million in construction overrun costs, to build interim and permanent capacity for water storage, according to the Congressional Budget Office.

The Settlement Agreement quantifies the Tribe’s reserved water rights in the Santa Margarita River Watershed (4,994 acre-feet per year) and provides the Tribe with rights to water that are equal to those that were set forth in the original federal court Fallbrook Decree. The legislation also authorizes necessary infrastructure to guarantee a permanent supply of water to Pechanga through cooperative agreements with local water providers, including RCWD, EMWD and the Metropolitan Water District. The legislation provides for a coordinated effort by the parties to manage the water within the Santa Margarita Basin that is intended to bring all residents of the Pechanga Reservation a safe and dependable water supply for the future.

The Departments of Justice and Interior have an established and detailed protocol for processing settlement agreements for execution, which explains the approximate one-year delay in taking the Settlement Agreement from Congressional approval to actual formal execution.

U.S. and Tribal Responses to Execution of the Settlement Agreement

“The Federal Government has a critical responsibility to uphold our trust responsibilities, especially Tribal water rights,” Secretary Zinke said.

• This is why we are continuing to work on Indian Water Settlements with Tribes, States, and all water users to ensure there is certainty for all and an opportunity for economic development in local communities. As a former State Senator and Congressman who helped usher the Blackfeet compact through to fruition, I understand all too well the hard work and enormous struggle that goes into making these important water rights settlements possible. I congratulate all of you for your perseverance, dedication, and commitment to making this settlement happen.

“The Pechanga Band has tirelessly pursued the quantification of its water rights and, through negotiations, engaged its neighbors in a multiyear process of building mutual trust and understanding,” said Pechanga Chairman Macarro.

• Generations of tribal leaders have fought from the courts to Capitol Hill to protect this vital resource for future generations. This settlement agreement benefits all of the parties by securing adequate water supplies for the Pechanga Band and its members and encouraging cooperative water resources management among all of the parties.

“The Pechanga Band of Luiseño Indians, as well as all of the parties to this settlement, deserve to have some certainty on the future of their water supply,” Rep. Calvert said.

• I’m grateful we have been able to enact the settlement and ensure all of the stakeholders in the Santa Margarita River Watershed can better shape their future.

Conclusion and Implications

The Settlement Agreement and Settlement Act, which received local and bipartisan congressional support, are the result of years of litigation and nearly a decade of complex negotiations between the Tribe, the U.S government, and various local agencies, including RCWD, EMWD and the Metropolitan Water District of Southern California. It will be interesting for water law practitioners to observe as the settlement itself is implemented, and the water storage and other projects contemplated by the Settlement Agreement are constructed, in order to help stabilize and protect water supplies in the greater Santa Margarita River watershed. (Paige H. Gosney, Michael Duane Davis)