118 HR 8945 IH: Navajo Nation Rio San José Stream System Water Rights Settlement Act of 2024
U.S. House of Representatives
2024-07-08
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
1.Short title; table of contents
(a)This Act may be cited as the Navajo Nation Rio San José Stream System Water Rights Settlement Act of 2024
. (b)The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Purposes.
Sec. 3. Definitions.
Sec. 4. Ratification of Agreement.
Sec. 5. Navajo Nation’s Water Rights.
Sec. 6. Navajo Nation Rio San José Settlement Trust Fund.
Sec. 7. Funding.
Sec. 8. Enforceability Date.
Sec. 9. Waivers and releases of claims.
Sec. 10. Satisfaction of claims.
Sec. 11. Consent of United States to jurisdiction for judicial review of a Navajo Nation Water Use Permit decision.
Sec. 12. Miscellaneous provisions.
Sec. 13. Relation to Allottees.
Sec. 14. Expansion of Navajo-Gallup Water Supply Project service area.
Sec. 15. Antideficiency.
2.The purposes of this Act are— (1)to achieve a fair, equitable, and final settlement of all claims to water rights in the general stream adjudication of the Rio San José Stream System captioned State of New Mexico, ex rel. State Engineer v. Kerr-McGee, et al.
, No. D–1333–CV–1983–00190 and No. D–1333–CV–1983–00220 (consolidated), pending in the Thirteenth Judicial District Court for the State of New Mexico, for—
(A)the Navajo Nation; and (B)the United States, acting as trustee for the Navajo Nation;
(2)to authorize, ratify, and confirm the agreement entered into by the Navajo Nation, the State, and various other parties to the Agreement, to the extent that the Agreement is consistent with this Act; (3)to authorize and direct the Secretary—
(A)to execute the Agreement; and (B)to take any other actions necessary to carry out the Agreement in accordance with this Act; and
(4)to authorize funds necessary for the implementation of the Agreement and this Act. 3.In this Act:
(1)The term Acequia means each of the Bluewater Toltec Irrigation District, La Acequia Madre del Ojo del Gallo, Moquino Water Users Association II, Murray Acres Irrigation Association, San Mateo Irrigation Association, Seboyeta Community Irrigation Association, Cubero Acequia Association, Cebolletita Acequia Association, and Community Ditch of Rio San José de la Cienega. (2)The term Adjudication means the general adjudication of water rights entitled State of New Mexico, ex rel. State Engineer v. Kerr-McGee, et al.
, No. D–1333–CV–1983–00190 and No. D–1333–CV–1983–00220 (consolidated) pending, as of the date of enactment of this Act, in the Decree Court.
(3)The term Agreement means— (A)the addendum dated June 11, 2024, to, and as provided in Article 17 of, the document entitled Rio San José Stream System Water Rights Local Settlement Agreement Among the Pueblo of Acoma, the Pueblo of Laguna, the Navajo Nation, the State of New Mexico, the City of Grants, the Village of Milan, the Association of Community Ditches of the Rio San José and Nine Individual Acequias and Community Ditches
and dated May 13, 2022, and the attachments thereto and to the addendum; and
(B)any amendment to the documents referred to in subparagraph (A) (including an amendment to an attachment) that is executed to ensure that the Agreement is consistent with this Act. (4)The term Allotment means a parcel of land that is—
(A)located within— (i)the Rio Puerco Basin; or
(ii)the Rio San José Stream System; and (B)held in trust by the United States for the benefit of—
(i)1 or more individual Indians; or (ii)an Indian Tribe holding an undivided fractional beneficial interest.
(5)The term Allottee means— (A)an individual Indian holding a beneficial interest in an Allotment; or
(B)an Indian Tribe holding an undivided fractional beneficial interest in an Allotment. (6)The term Decree Court means the Thirteenth Judicial District Court of the State of New Mexico.
(7)The term Enforceability Date means the date described in section 8. (8)Navajo Nation; Navajo; Nation (A)The terms Navajo Nation, Navajo, and Nation mean the body politic and federally recognized Indian nation, as published on the list required under section 104(a) of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5131(a)), also known variously as the Navajo Nation of Arizona, New Mexico, & Utah
, and the Navajo Nation of Indians
and other similar names.
(B)The terms Navajo Nation, Navajo, and Nation include all bands of Navajo Indians and chapters of the Navajo Nation and all divisions, agencies, officers, and agents thereof. (9)Navajo nation lands; Navajo lands (A)The terms Navajo Nation Lands and Navajo Lands mean any real property—
(i)in the Rio San José Stream System that is held by the United States in trust for the Navajo Nation, or owned by the Navajo Nation, as of the Enforceability Date; or (ii)in the Rio Puerco Basin that is held by the United States in trust for the Navajo Nation, or owned by the Navajo Nation, as of the Enforceability Date.
(B)The terms Navajo Nation Lands and Navajo Lands include land placed in trust with the United States subsequent to the Enforceability Date for the Navajo Nation in the Rio San José Stream System and in the Rio Puerco Basin. (C)The terms Navajo Nation Lands and Navajo Lands do not include Allotments.
(10)The term Navajo Nation Water Code means the water code enacted in 1984 by the Navajo Nation Council through Resolution CAU–34–84. (22 N.N.C. 1101 et seq.). (11)Navajo nation water use permitThe term Navajo Nation Water Use Permit means a document specifying terms and conditions for diversion and use of water on Navajo Nation Lands issued by the Navajo Nation within the scope of its authority under the Navajo Nation Water Code and the Settlement Agreement.
(12)Navajo nation’s water rights
(A)The term Navajo Nation’s Water Rights means all the water rights set out in Articles 17.2, 17.4, and 17.5 of the Agreement. (B)The term Navajo Nation's Water Rights does not include—
(i)any interest that the Nation may have in an Allotment that is determined by the Secretary to be patented pursuant to section 1 of the Act of February 8, 1887 (commonly known as the Indian General Allotment Act
) (24 Stat. 388, chapter 119; 25 U.S.C. 331) (as in effect on the day before the date of enactment of the Indian Land Consolidation Act Amendments of 2000 (Public Law 106–462; 114 Stat. 1991)); or (ii)any undivided interest that the Nation may have in an Allotment that is determined by the Secretary to be patented pursuant to an authority other than section 1 of the Act of February 8, 1887 (commonly known as the Indian General Allotment Act
) (24 Stat. 388, chapter 119; 25 U.S.C. 331) (as in effect on the day before the date of enactment of the Indian Land Consolidation Act Amendments of 2000 (Public Law 106–462; 114 Stat. 1991)).
(13)Navajo partial final judgment and decreeThe term Navajo Partial Final Judgment and Decree means a final or interlocutory partial final judgment and decree entered by the Decree Court with respect to the Navajo Nation’s Water Rights— (A)that is substantially in the form described in Article 17.14.7.2 of the Agreement, as amended to ensure consistency with this Act; and
(B)from which no further appeal may be taken. (14)The term Navajo Trust Fund means the Navajo Nation Rio San José Settlement Trust Fund established under section 6(a).
(15)The term Rio Puerco Basin means the area defined by the United States Geological Survey Hydrologic Unit Codes (HUC) 13020204 (Rio Puerco subbasin) and 13020205 (Arroyo Chico subbasin), including the hydrologically connected groundwater. (16)Rio san josé stream systemThe term Rio San José Stream System means the geographic extent of the area involved in the Adjudication pursuant to the description filed in the Decree Court on November 21, 1986.
(17)The term Secretary means the Secretary of the Interior. (18)The term Signatory Acequia means an acequia that is a signatory to the Agreement.
(19)The term State means the State of New Mexico and all officers, agents, departments, and political subdivisions of the State of New Mexico. 4.Ratification of Agreement (a) (1)Except as modified by this Act, and to the extent that the Agreement does not conflict with this Act, the Agreement is authorized, ratified, and confirmed.
(2)If an amendment to the Agreement, or to any attachment to the Agreement requiring the signature of the Secretary, is executed in accordance with this Act to make the Agreement consistent with this Act, the amendment is authorized, ratified, and confirmed. (b) (1)To the extent that the Agreement does not conflict with this Act, the Secretary shall execute the Agreement, including all attachments to, or parts of, the Agreement requiring the signature of the Secretary.
(2)Nothing in this Act prohibits the Secretary, after execution of the Agreement, from approving any modification to the Agreement, including an attachment to the Agreement, that is consistent with this Act, to the extent that the modification does not otherwise require congressional approval under section 2116 of the Revised Statutes (25 U.S.C. 177) or any other applicable provision of Federal law. (c) (1)In implementing the Agreement and this Act, the Secretary shall comply with—
(A)the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); (B)the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), including the implementing regulations of that Act; and
(C)all other applicable Federal environmental laws and regulations. (2) (A)In implementing the Agreement and this Act, the Navajo Nation shall prepare any necessary environmental documents, consistent with—
(i)the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); (ii)the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), including the implementing regulations of that Act; and
(iii)all other applicable Federal environmental laws and regulations. (B)The Secretary shall—
(i)independently evaluate the documentation required under subparagraph (A); and (ii)be responsible for the accuracy, scope, and contents of that documentation.
(3)The execution of the Agreement by the Secretary under this section shall not constitute a major Federal action under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). (4)Any costs associated with the performance of the compliance activities under this subsection shall be paid from funds deposited in the Navajo Trust Fund or other sources of funding from the Navajo Nation, subject to the condition that any costs associated with the performance of Federal approval or other review of such compliance work or costs associated with inherently Federal functions shall remain the responsibility of the Secretary.
5.Navajo Nation’s Water Rights
(a)Trust status of navajo nation’s water rightsThe Navajo Nation’s Water Rights shall be held in trust by the United States on behalf of the Nation in accordance with the Agreement and this Act. (b)Forfeiture and abandonment (1)The Navajo Nation’s Water Rights shall not be subject to loss through non-use, forfeiture, abandonment, or other operation of law.
(2)State-law based water rightsState-law based water rights acquired by the Navajo Nation, or by the United States on behalf of the Nation, after the date for inclusion in the Navajo Partial Final Judgment and Decree, shall not be subject to forfeiture, abandonment, or permanent alienation from the time they are acquired. (c)Any use of the Navajo Nation’s Water Rights shall be subject to the terms and conditions of the Agreement and this Act.
(d)Allotment rights not includedConsistent with section 13, the Navajo Nation’s Water Rights shall not include any water rights for an Allotment, subject to the condition that the Navajo Nation may allow use of the Navajo Nation’s Water Rights on an Allotment subject to the terms and conditions of the Agreement and this Act. (e)Allottees not adversely affectedNothing in this Act quantifies or diminishes any water right, or any claim or entitlement to water, of an Allottee.
(f)The Nation shall not object in any general stream adjudication, including the Adjudication, to the quantification of reasonable domestic, stock, and irrigation water uses on an Allotment, and shall administer any water use in accordance with applicable Federal law, including recognition of— (1)any water use existing on an Allotment as of the date of enactment of this Act;
(2)reasonable domestic, stock, and irrigation water uses on an Allotment; and (3)any water right decreed to the United States in trust for an Allottee in a general stream adjudication, including the Adjudication, for use on an Allotment.
(g)Authority of the navajo nation
(1)The Navajo Nation shall have the authority to allocate, distribute, and lease the Navajo Nation’s Water Rights for use on Navajo Lands in accordance with the Agreement, this Act, and applicable Federal law, including the first section of the Act of August 9, 1955 (69 Stat. 539, chapter 615; 25 U.S.C. 415) (commonly known as the Long-Term Leasing Act
). (2)
(A)The Navajo Nation may allocate, distribute, and lease the Navajo Nation’s Water Rights for use off Navajo Lands in accordance with the Agreement, this Act, and applicable Federal law, subject to the approval of the Secretary. (B)The maximum term of any lease, including all renewals, under this paragraph shall not exceed 99 years.
(h)
(1)The Navajo Nation shall not permanently alienate any portion of the Navajo Nation’s Water Rights. (2)Purchases or grants of land from indiansAn authorization provided by this Act for the allocation, distribution, leasing, or other arrangement entered into pursuant to this Act shall be considered to satisfy any requirement for authorization of the action required by Federal law.
(3)Prohibition on forfeitureThe non-use of all or any portion of the Navajo Nation’s Water Rights by any water user shall not result in the forfeiture, abandonment, relinquishment, or other loss of all or any portion of the Navajo Nation’s Water Rights. (4)Forbearance by navajo nation for non-stock water rights of certain allotmentsForbearance by the Navajo Nation in accordance with Article 17.13.4 of the Agreement—
(A)shall be considered non-use for purposes of paragraph (3); and (B)shall not result in the forfeiture, abandonment, relinquishment, or other loss of any portion of the Navajo Nation’s Water Rights.
6.Navajo Nation Rio San José Settlement Trust Fund
(a)The Secretary shall establish a trust fund, to be known as the Navajo Nation Rio San José Water Rights Settlement Trust Fund
, to be managed, invested, and distributed by the Secretary and to remain available until expended, withdrawn, or reverted to the general fund of the Treasury, consisting of the amounts deposited in the Navajo Trust Fund under subsection (c), together with any investment earnings, including interest, earned on those amounts, for the purpose of carrying out this Act. (b)The Secretary shall establish in the Navajo Trust Fund the following accounts:
(1)The Navajo Nation Water Rights Settlement Account. (2)The Navajo Nation Operations and Maintenance Account.
(c)The Secretary shall deposit in the Navajo Trust Fund the amounts made available pursuant to section 7(a). (d) (1)On receipt and deposit of funds into the Navajo Trust Fund under subsection (c), the Secretary shall manage, invest, and distribute all amounts in the Navajo Trust Fund in a manner that is consistent with the investment authority of the Secretary under—
(A)the first section of the Act of June 24, 1938 (25 U.S.C. 162a); (B)the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.); and
(C)this subsection. (2)In addition to the deposits made to the Navajo Trust Fund under subsection (c), any investment earnings, including interest, earned on those amounts held in the Navajo Trust Fund are authorized to be used in accordance with subsections (f) and (h).
(e)
(1)Amounts appropriated to, and deposited in, the Navajo Trust Fund, including any investment earnings, including interest, earned on those amounts, shall be made available to the Nation by the Secretary beginning on the Enforceability Date, subject to the requirements of this section, except for funds to be made available to the Nation pursuant to paragraph (2). (2)Notwithstanding paragraph (1), up to $15,000,000 of the amounts deposited in the Navajo Nation Water Rights Settlement Account, including any investment earnings, including interest, earned on those amounts, shall be available to the Nation on the date on which the amounts are deposited in the Navajo Nation Water Rights Settlement Account for the following uses:
(A)Feasibility studies, planning, engineering, design, and related environmental, cultural, and historical compliance, and obtaining rights-of-way or permits for water supply infrastructure to serve Navajo Nation needs consistent with subsection (h)(1)(B). (B)Installing, on Navajo Lands, groundwater wells and associated infrastructure to meet immediate domestic, commercial, municipal and industrial water needs, and associated environmental, cultural, and historical compliance.
(f)
(1)Withdrawals under the american indian trust fund management reform act of 1994
(A)The Navajo Nation may withdraw any portion of the amounts in the Navajo Trust Fund on approval by the Secretary of a Tribal management plan submitted by the Nation in accordance with the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.). (B)In addition to the requirements under the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.), the Tribal management plan under this paragraph shall require that the Nation shall spend all amounts withdrawn from the Navajo Trust Fund, and any investment earnings, including interest, earned on those amounts, through the investments under the Tribal management plan, in accordance with this Act.
(C)The Secretary may carry out such judicial and administrative actions as the Secretary determines to be necessary to enforce the Tribal management plan under this paragraph to ensure that amounts withdrawn by the Nation from the Navajo Trust Fund under subparagraph (A) are used in accordance with this Act. (2)Withdrawals under expenditure plan (A)The Navajo Nation may submit to the Secretary a request to withdraw funds from the Navajo Trust Fund pursuant to an approved expenditure plan.
(B)To be eligible to withdraw amounts under an expenditure plan under subparagraph (A), the Nation shall submit to the Secretary an expenditure plan for any portion of the Navajo Trust Fund that the Nation elects to withdraw pursuant to that subparagraph, subject to the condition that the amounts shall be used for the purposes described in this Act. (C)An expenditure plan under this paragraph shall include a description of the manner and purpose for which the amounts proposed to be withdrawn from the Navajo Trust Fund will be used by the Nation, in accordance with this subsection and subsection (h).
(D)The Secretary shall approve an expenditure plan submitted under subparagraph (A) if the Secretary determines that the plan— (i)is reasonable; and
(ii)is consistent with, and will be used for, the purposes of this Act. (E)The Secretary may carry out such judicial and administrative actions as the Secretary determines to be necessary to enforce an expenditure plan to ensure that amounts disbursed under this paragraph are used in accordance with this Act.
(g)Nothing in this section gives the Navajo Nation the right to judicial review of a determination of the Secretary relating to whether to approve a Tribal management plan under paragraph (1) of subsection (f) or an expenditure plan under paragraph (2) of that subsection except under subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the Administrative Procedure Act
). (h) (1)Navajo nation water rights settlement accountThe Navajo Nation Water Rights Settlement Account may only be used for the following purposes:
(A)Acquiring water rights or water supply. (B)Planning, permitting, designing, engineering, constructing, reconstructing, replacing, rehabilitating, operating, or repairing water production, treatment, or delivery infrastructure, including for domestic and municipal use, on-farm improvements, or wastewater infrastructure.
(C)Navajo Nation’s Water Rights management and administration. (D)Watershed protection and enhancement, support of agriculture, water-related Navajo community welfare and economic development, and costs relating to implementation of the Agreement.
(E)Environmental compliance in the development and construction of infrastructure under this Act. (2)Navajo nation operations and maintenance accountThe Navajo Nation Water Infrastructure Operations and Maintenance Account may only be used to pay costs for operation, maintenance, and replacement of water infrastructure to serve Navajo domestic, commercial, municipal, and industrial water uses from any water source.
(i)The Secretary and the Secretary of the Treasury shall not be liable for the expenditure or investment of any amounts withdrawn from the Navajo Trust Fund by the Nation under paragraph (1) or (2) of subsection (f). (j)The Navajo Nation shall annually submit to the Secretary an expenditure report describing accomplishments and amounts spent from use of withdrawals under a Tribal management plan or an expenditure plan under paragraph (1) or (2) of subsection (f), as applicable.
(k)No per capita distributionsNo portion of the Navajo Trust Fund shall be distributed on a per capita basis to any member of Navajo Nation. (l)Title to, control over, and operation of any project constructed using funds from the Navajo Trust Fund shall remain in the Navajo Nation.
(m)Operation, maintenance, and replacementAll operation, maintenance, and replacement costs of any project constructed using funds from the Navajo Trust Fund shall be the responsibility of the Nation. 7. (a)Out of any money in the Treasury not otherwise appropriated, the Secretary of the Treasury shall transfer to the Secretary the following amounts for deposit in the following accounts:
(1)The navajo nation water rights settlement accountFor deposit in the Navajo Nation Water Rights Settlement Account established under section 6(b)(1), $200,271,000, to remain available until expended, withdrawn, or reverted to the general fund of the Treasury. (2)The navajo nation operations and maintenance accountFor deposit in the Navajo Nation Operations and Maintenance Account established under section 6(b)(2), $23,000,000, to remain available until expended, withdrawn, or reverted to the general fund of the Treasury.
(b)
(1)The amounts appropriated under subsection (a) shall be increased or decreased, as appropriate, by such amounts as may be justified by reason of ordinary fluctuations in costs, as indicated by the Bureau of Reclamation Construction Cost Index–Composite Trend. (2)Construction costs adjustmentThe amounts appropriated under subsection (a) shall be adjusted to address construction cost changes necessary to account for unforeseen market volatility that may not otherwise be captured by construction cost indices, as determined by the Secretary, including repricing applicable to the types of construction and current industry standards involved.
(3)The adjustment process under this subsection shall be repeated for each subsequent amount appropriated until the applicable amount, as adjusted, has been appropriated. (4)The period of indexing adjustment under this subsection for any increment of funding shall start on October 1, 2021, and end on the date on which funds are deposited in the Navajo Trust Fund.
(c)Pursuant to the Agreement, the State shall contribute— (1)$3,000,000, as adjusted for inflation pursuant to the Agreement, to the Bluewater Toltec Irrigation District and Acequia Madre del Ojo del Gallo for purposes described in the Agreement; and
(2)if applicable, additional funding subject to the provisions of Article 17.12.4 of the Agreement. 8.The Enforceability Date shall be the date on which the Secretary publishes in the Federal Register a statement of findings that—
(1)to the extent that the Agreement conflicts with this Act, the Agreement has been amended to conform with this Act; (2)the Agreement, as amended, has been executed by all parties to the Agreement, including the United States;
(3)all of the amounts appropriated under section 7(a) have been appropriated and deposited in the designated accounts of the Navajo Trust Fund; (4)the State has—
(A)provided $3,000,000 of funding under section 7(c)(1) into the appropriate funding accounts or entered into a funding agreement with the intended beneficiaries for that funding; and (B)enacted legislation to amend State law to provide that a Navajo Nation Water Right may be leased for a term not to exceed 99 years, including renewals;
(5)the Decree Court has approved the Agreement and has entered the Navajo Partial Final Judgment and Decree; and (6)the waivers and releases under section 9 have been executed by the Navajo Nation and the Secretary.
9.Waivers and releases of claims
(a)Waivers and releases of claims by the navajo nation and united states as trustee for the nationSubject to the reservation of rights and retention of claims under subsection (d), as consideration for recognition of the Navajo Nation’s Water Rights and other benefits described in the Agreement and this Act, the Navajo Nation, on behalf of the Nation and members of the Nation (other than members in their capacity as Allottees), and the United States, acting as trustee for the Nation and members of the Nation (other than members in their capacity as Allottees), shall execute a waiver and release of all claims for— (1)water rights within the Rio San José Stream System that the Navajo Nation or the United States acting as trustee for the Nation, asserted or could have asserted in any proceeding, including the Adjudication, on or before the Enforceability Date, except to the extent that such rights are recognized in the Agreement and this Act; and
(2)damages, losses, or injuries to water rights or claims of interference with, diversion of, or taking of water rights (including claims for injury to land resulting from such damages, losses, injuries, interference with, diversion, or taking of water rights) in the waters in the Rio San José Stream System against any party to the Agreement, including the members and parciantes of Signatory Acequias, that accrued at any time up to and including the Enforceability Date. (b)Waivers and releases of claims by navajo nation against united statesSubject to the reservation of rights and retention of claims under subsection (d), the Navajo Nation, on behalf of the Nation (including in its capacity as an Allottee) and members of the Nation (other than members in their capacity as Allottees) shall execute a waiver and release of all claims against the United States (including any agency or employee of the United States) first arising before the Enforceability Date relating to—
(1)water rights within the Rio San José Stream System that the United States, acting as trustee for the Navajo Nation, asserted or could have asserted in any proceeding, including the Adjudication, except to the extent that such rights are recognized as part of the Navajo Nation’s Water Rights under this Act; (2)foregone benefits from non-Navajo use of water, on and off Navajo Lands, including water from all sources and for all uses, within the Rio San José Stream System;
(3)damage, loss, or injury to water, water rights, land, or natural resources due to loss of water or water rights, including damages, losses, or injuries to hunting, fishing, gathering, or cultural rights due to loss of water or water rights, claims relating to interference with, diversion of, or taking of water, or claims relating to a failure to protect, acquire, replace, or develop water, water rights, or water infrastructure, within the Rio San José Stream System; (4)a failure to provide for operation, maintenance, or deferred maintenance for any irrigation system or irrigation project within the Rio San José Stream System;
(5)a failure to establish or provide a municipal, rural, or industrial water delivery system on Navajo Lands within the Rio San José Stream System; (6)damage, loss, or injury to water, water rights, land, or natural resources due to construction, operation, and management of irrigation projects on Navajo Lands, including damages, losses, or injuries to fish habitat, wildlife, and wildlife habitat, within the Rio San José Stream System;
(7)a failure to provide a dam safety improvement to a dam on Navajo Lands within the Rio San José Stream System; (8)the litigation of claims relating to any water right of the Nation within the Rio San José Stream System; and
(9)the negotiation, execution, or adoption of the Agreement, including attachments, and this Act. (c)The waivers and releases described in subsections (a) and (b) shall take effect on the Enforceability Date.
(d)Reservation of rights and retention of claimsNotwithstanding the waivers and releases under subsections (a) and (b), the Navajo Nation and the United States, acting as trustee for the Nation, shall retain all claims relating to— (1)the enforcement of, or claims accruing after the Enforceability Date relating to water rights recognized under the Agreement, this Act, or the Navajo Partial Final Judgment and Decree entered in the Adjudication;
(2)activities affecting the quality of water and the environment, including claims under— (A)the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), including claims for damages to natural resources;
(B)the Safe Drinking Water Act (42 U.S.C. 300f et seq.); (C)the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) (commonly referred to as the Clean Water Act
); and
(D)any regulations implementing the Acts described in subparagraphs (A) through (C); (3)the right to use and protect water rights acquired after the date of enactment of this Act;
(4)damage, loss, or injury to land or natural resources that is not due to loss of water or water rights, including hunting, fishing, gathering, or cultural rights; (5)all claims for water rights, and claims for injury to water rights, in basins other than the Rio San José Stream System, subject to the Agreement with respect to the claims of the Navajo Nation for water rights in the Rio Puerco Basin;
(6)all claims relating to the Jackpile-Paguate Uranium Mine in the State that are not due to loss of water or water rights; and (7)all rights, remedies, privileges, immunities, powers, and claims not specifically waived and released pursuant to this Act or the Agreement.
(e)Effect of agreement and actNothing in the Agreement or this Act— (1)reduces or extends the sovereignty (including civil and criminal jurisdiction) of any government entity, except as provided in section 11;
(2)affects the ability of the United States, as sovereign, to carry out any activity authorized by law, including— (A)the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.);
(B)the Safe Drinking Water Act (42 U.S.C. 300f et seq.); (C)the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) (commonly referred to as the Clean Water Act
);
(D)the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.); and (E)any regulations implementing the Acts described in subparagraphs (A) through (D);
(3)affects the ability of the United States to act as trustee for the Navajo Nation (consistent with this Act), any other Indian Tribe, or an Allottee of any other Indian Tribe; (4)confers jurisdiction on any State court—
(A)to interpret Federal law relating to health, safety, or the environment; (B)to determine the duties of the United States or any other party under Federal law regarding health, safety, or the environment; or
(C)to conduct judicial review of any Federal agency action; or (5)waives any claim of a member of the Navajo Nation in an individual capacity that does not derive from a right of the Navajo Nation.
(f)Offset relating to rio puercoThe United States shall be entitled to offset $20,000,000 against— (1)any judgment against the United States for claims relating to water rights in the Rio Puerco Basin, including breach of trust and damage claims relating to water rights in the Rio Puerco Basin, in a case brought by the Nation or any user of the Navajo Nation’s Water Rights; or
(2)a Federal contribution to any future settlement of water rights of the Navajo Nation in the Rio Puerco Basin. (g) (1)Each applicable period of limitation and time-based equitable defense relating to a claim described in this section shall be tolled for the period beginning on the date of enactment of this Act and ending on the Enforceability Date.
(2)Nothing in this subsection revives any claim or tolls any period of limitation or time-based equitable defense that expired before the date of enactment of this Act. (3)Nothing in this section precludes the tolling of any period of limitation or any time-based equitable defense under any other applicable law.
(h)
(1)This Act shall expire in any case in which the Secretary fails to publish a statement of findings under section 8 by not later than— (A)July 1, 2030; or
(B)such alternative later date as is agreed to by the Navajo Nation and the Secretary, after providing reasonable notice to the State. (2)If this Act expires under paragraph (1)—
(A)the waivers and releases under subsections (a) and (b) shall— (i)expire; and
(ii)have no further force or effect; (B)the authorization, ratification, confirmation, and execution of the Agreement under section 4 shall no longer be effective;
(C)any action carried out by the Secretary, and any contract or agreement entered into, pursuant to this Act shall be void; (D)any unexpended Federal funds appropriated or made available to carry out the activities authorized by this Act, together with any interest earned on those funds, and any water rights or contracts to use water and title to other property acquired or constructed with Federal funds appropriated or made available to carry out the activities authorized by this Act, shall be returned to the Federal Government, unless otherwise agreed to by Navajo Nation and the United States and approved by Congress; and
(E)except for Federal funds used to acquire or construct property that is returned to the Federal Government under subparagraph (D), the United States shall be entitled to offset any Federal funds made available to carry out this Act that were expended or withdrawn, or any funds made available to carry out this Act from other Federal authorized sources, together with any interest accrued on those funds, against any claims against the United States— (i)relating to water rights in the State asserted by—
(I)the Nation or any user of the Navajo Nation’s Water Rights; or (II)any other matter covered by subsection (b); or
(ii)in any future settlement of water rights of the Navajo Nation. 10.The benefits provided under this Act shall be in complete replacement of, complete substitution for, and full satisfaction of any claim of the Navajo Nation against the United States that are waived and released by the Nation pursuant to section 9(b).
11.Consent of United States to jurisdiction for judicial review of a Navajo Nation Water Use Permit decision
(a)On the Enforceability Date, the consent of the United States is hereby given, with the consent of the Navajo Nation under Article 17.14.4 of the Agreement, to jurisdiction in the District Court for the Thirteenth Judicial District of the State of New Mexico, and in the New Mexico Court of Appeals and the New Mexico Supreme Court on appeal therefrom in the same manner as provided under New Mexico law, over an action filed in such District Court by any party to a Navajo Nation Water Use Permit administrative proceeding under Article 17.10.4 of the Agreement for the limited and sole purpose of judicial review of a Navajo Nation Water Use Permit decision under article 17.10.5 of the Agreement. (b)The consent of the United States for review of a Navajo Nation Water Use Permit is limited to judicial review, based on the record developed through the administrative process of the Navajo Nation, under a standard of judicial review limited to determining whether the Navajo Nation decision on the application for the Navajo Nation Water Use Permit—
(1)is supported by substantial evidence; (2)is not arbitrary, capricious, or contrary to law;
(3)is not in accordance with the Agreement or the Navajo Partial Final Judgment and Decree; or (4)shows that the Navajo Nation acted fraudulently or outside the scope of its authority.
(c)Navajo nation water code and interpretation
(1)Navajo Nation Water Code or Navajo Water Law provisions that meet the requirements of Article 17.10 of the Agreement shall be given full faith and credit in any proceeding described in this section. (2)Provisions of the navajo nation water codeTo the extent that a State court conducting judicial review under this section must interpret provisions of Navajo Nation law that are not express provisions of the Navajo Nation Water Code or Navajo Nation water law, the State court shall certify the question of interpretation to the Navajo Nation court.
(3)Any issues of interpretation of standards in article 17.10.6 of the Agreement are not subject to certification. (4)Nothing in this section limits the jurisdiction of the Decree Court to interpret and enforce the Agreement.
12.
(a)No waiver of sovereign immunity by the united statesNothing in this Act waives the sovereign immunity of the United States. (b)Other tribes not adversely affectedNothing in this Act quantifies or diminishes any land or water right, or any claim or entitlement to land or water, of an Indian Tribe, band, Pueblo, or community other than the Navajo Nation.
(c)Nothing in this Act affects any provision of law (including regulations) in effect on the day before the date of enactment of this Act with respect to pre-enforcement review of any Federal environmental enforcement action. (d)In the event of a conflict between the Agreement and this Act, this Act shall control.
13.
(a)No effect on claims of allotteesNothing in this Act or the Agreement shall affect the rights or claims of Allottees, or the United States, acting in its capacity as trustee for or on behalf of Allottees, for water rights or damages relating to land allotted by the United States to Allottees. (b)Relationship of decree to allottees (1)Notwithstanding whether an Allotment is patented pursuant to section 1 of the Act of February 8, 1887 (commonly known as the Indian General Allotment Act
) (24 Stat. 388, chapter 119; 25 U.S.C. 331) (as in effect on the day before the date of enactment of the Indian Land Consolidation Act Amendments of 2000 (Public Law 106–462; 114 Stat. 1991)) or section 4 of that Act (24 Stat. 389, chapter 119; 25 U.S.C. 334), as determined by the Secretary, when adjudicated—
(A)water rights for Allotments shall be separate from the Navajo Nation’s Water Rights; and (B)no water rights for Allotments shall be included in the Navajo Partial Final Judgment and Decree.
(2)The Allotment water rights adjudicated separately pursuant to paragraph (1) shall not be subject to the restrictions or conditions that apply to the use of the Navajo Nation’s Water Rights, subject to the condition that if an Allotment governed by the Act of February 8, 1887 (commonly known as the Indian General Allotment Act
) (24 Stat. 388, chapter 119) becomes Navajo Nation Lands, the water rights associated with that Allotment shall be subject to the restrictions and conditions on the Navajo Nation’s Water Rights set forth in this Act and the Agreement. (3)Allottee water rights to be adjudicatedAllottees, or the United States, acting in its capacity as trustee for Allottees, may make water rights claims, and those claims may be adjudicated in the Rio San José Stream System or the Rio Puerco Basin.
14.Expansion of Navajo-Gallup Water Supply Project service area
(a)In this section, the term Project means the Navajo-Gallup Water Supply Project authorized under section 10602 of the Northwestern New Mexico Rural Water Projects Act (Public Law 111–11; 123 Stat. 1379). (b)Expansion of Project service area authorizedThe Nation may expand the service area for the Project in order to deliver water supply from the Project to communities of the Nation within the Rio San José Basin in the State.
(c)Approval of final design for expansionIf water will be supplied from facilities of the Project to the Rio San José Basin at a time when the Bureau of Reclamation still holds title to those facilities, the Navajo Nation shall— (1)obtain approval, in writing, from the Commissioner of Reclamation for the final design of the connection and related facilities needed to connect the extension into the Rio San José area from those facilities; and
(2)coordinate construction of the connection and related facilities with the Commissioner of Reclamation. 15.The United States shall not be liable for any failure to carry out any obligation or activity authorized by this Act, including any obligation or activity under the Agreement, if adequate appropriations are not provided expressly by Congress to carry out the purposes of this Act.