II Calendar No. 987 110th CONGRESS 2d Session S. 2805 IN THE SENATE OF THE UNITED STATES April 2, 2008 Mr. Bingaman introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources September 16, 2008 Reported by Mr. Bingaman, with an amendment Strike out all after the enacting clause and insert the part printed in italic A BILL To direct the Secretary of the Interior, acting through the Commissioner of Reclamation, to assess the irrigation infrastructure of the Rio Grande Pueblos in the State of New Mexico and provide grants to, and enter into cooperative agreements with, the Rio Grande Pueblos to repair, rehabilitate, or reconstruct existing infrastructure, and for other purposes.
1.
Short title
This Act may be cited as the Rio Grande Pueblos Irrigation Infrastructure Improvement Act .
2.
Findings and purpose
(a)
Findings
Congress finds that— (1)drought, population increases, and environmental needs are exacerbating water supply issues across the western United States, including the Rio Grande Basin in New Mexico; (2)a report developed by the Bureau of Reclamation and the Bureau of Indian Affairs in 2000 identified a serious need for the rehabilitation and repair of irrigation infrastructure of the Rio Grande Pueblos; (3)inspection of existing irrigation infrastructure of the Rio Grande Pueblos shows that many key facilities, such as diversion structures and main conveyance ditches, are unsafe and barely, if at all, operable; (4)the benefits of rehabilitating and repairing irrigation infrastructure of the Rio Grande Pueblos include— (A)water conservation; (B)extending available water supplies; (C)increased agricultural productivity; (D)economic benefits; (E)safer facilities; and (F)the preservation of the culture of Indian Pueblos in the State; (5)certain Indian Pueblos in the Rio Grande Basin receive water from facilities operated or owned by the Bureau of Reclamation; and (6)rehabilitation and repair of irrigation infrastructure of the Rio Grande Pueblos would improve— (A)overall water management by the Bureau of Reclamation; and (B)the ability of the Bureau of Reclamation to help address potential water supply conflicts in the Rio Grande Basin. (b)
Purpose
The purpose of this Act is to direct the Secretary— (1)to assess the condition of the irrigation infrastructure of the Rio Grande Pueblos; (2)to establish priorities for the rehabilitation of irrigation infrastructure of the Rio Grande Pueblos in accordance with specified criteria; and (3)to implement projects to rehabilitate and improve the irrigation infrastructure of the Rio Grande Pueblos.
3.
Definitions
In this Act: (1)
2004 agreement
The term 2004 Agreement means the agreement entitled Agreement By and Between the United States of America and the Middle Rio Grande Conservancy District, Providing for the Payment of Operation and Maintenance Charges on Newly Reclaimed Pueblo Indian Lands in the Middle Rio Grande Valley, New Mexico and executed in September 2004 (including any successor agreements and amendments to the agreement). (2)
Designated engineer
The term designated engineer means a Federal employee designated under the Act of February 14, 1927 (69 Stat. 1098, chapter 138) to represent the United States in any action involving the maintenance, rehabilitation, or preservation of the condition of any irrigation structure or facility on land located in the Six Middle Rio Grande Pueblos. (3)
District
The term District means the Middle Rio Grande Conservancy District, a political subdivision of the State established in 1925. (4)
Pueblo irrigation infrastructure
The term Pueblo irrigation infrastructure means any diversion structure, conveyance facility, or drainage facility located on land of a Rio Grande Pueblo that is associated with the delivery of water for the irrigation of agricultural land. (5)
Rio grande basin
The term Rio Grande Basin means the headwaters of the Rio Chama and the Rio Grande Rivers (including any tributaries) from the State line between Colorado and New Mexico downstream to the elevation corresponding with the spillway crest of Elephant Butte Dam at 4,457.3 feet mean sea level. (6)
Rio grande pueblo
The term Rio Grande Pueblo means any of the 18 Pueblos that— (A)occupy land in the Rio Grande Basin; and (B)are included on the list of federally recognized Indian tribes published by the Secretary in accordance with section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a–1). (7)
Secretary
The term Secretary means the Secretary of the Interior, acting through the Commissioner of Reclamation. (8)
Six Middle Rio Grande Pueblos
The term Six Middle Rio Grande Pueblos means each of the Pueblos of Cochiti, Santo Domingo, San Felipe, Santa Ana, Sandia, and Isleta. (9)
Special project
The term special project has the meaning given the term in the 2004 Agreement. (10)
State
The term State means the State of New Mexico.
4.
Irrigation infrastructure study
(a)
Study
(1)
In general
On the date of enactment of this Act, the Secretary, in accordance with paragraph (2), and in consultation with the Rio Grande Pueblos, shall— (A)conduct a study of Pueblo irrigation infrastructure; and (B)based on the results of the study, develop a list of projects (including a cost estimate for each project), that are recommended to be implemented over a 10-year period to repair, rehabilitate, or reconstruct Pueblo irrigation infrastructure. (2)
Required consent
The Secretary shall carry out paragraph (1) with the consent of each Pueblo that notifies the Secretary of the intention of the Pueblo to participate in— (A)the conduct of the study under paragraph (1)(A); and (B)the development of the list of projects under paragraph (1)(B). (b)
Priority
(1)
Consideration of factors
(A)
In general
In developing the list of projects under subsection (a)(1)(B), the Secretary shall— (i)consider each of the factors described in paragraph (2); and (ii)prioritize the projects recommended for implementation based on— (I)a review of each of the factors; and (II)a consideration of the projected benefits of the project on completion of the project. (B)
Eligibility of projects
A project is eligible to be considered and prioritized by the Secretary if the project addresses at least 1 factor described in paragraph (2). (2)
Factors
The factors referred to in paragraph (1) are— (A)(i)the extent of disrepair of the Pueblo irrigation infrastructure; and (ii)the effect of the disrepair on the ability of the applicable Rio Grande Pueblo to irrigate agricultural land using Pueblo irrigation infrastructure; (B)whether, and the extent that, the repair, rehabilitation, or reconstruction of the Pueblo irrigation infrastructure would provide an opportunity to conserve water; (C)(i)the economic and cultural impacts that the Pueblo irrigation infrastructure that is in disrepair has on the applicable Rio Grande Pueblo; and (ii)the economic and cultural benefits that the repair, rehabilitation, or reconstruction of the Pueblo irrigation infrastructure would have on the applicable Rio Grande Pueblo; (D)the opportunity to address water supply or environmental conflicts in the applicable river basin if the Pueblo irrigation infrastructure is repaired, rehabilitated, or reconstructed; and (E)the overall benefits of the project to efficient water operations on the land of the applicable Rio Grande Pueblo. (c)
Consultation
In developing the list of projects under subsection (a)(1)(B), the Secretary shall consult with the Director of the Bureau of Indian Affairs (including the designated engineer with respect to each proposed project that affects the Six Middle Rio Grande Pueblos), the Chief of the Natural Resources Conservation Service, and the Chief of Engineers to evaluate the extent to which programs under the jurisdiction of the respective agencies may be used— (1)to assist in evaluating projects to repair, rehabilitate, or reconstruct Pueblo irrigation infrastructure; and (2)to implement— (A)a project recommended for implementation under subsection (a)(1)(B); or (B)any other related project (including on-farm improvements) that may be appropriately coordinated with the repair, rehabilitation, or reconstruction of Pueblo irrigation infrastructure to improve the efficient use of water in the Rio Grande Basin. (d)
Report
Not later than 18 months after the date of enactment of this Act, the Secretary shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Resources of the House of Representatives a report that includes— (1)the list of projects recommended for implementation under subsection (a)(1)(B); and (2)any findings of the Secretary with respect to— (A)the study conducted under subsection (a)(1)(A); (B)the consideration of the factors under subsection (b)(2); and (C)the consultations under subsection (c). (e)
Biennial review
Not later than 2 years after the date on which the Secretary submits the report under subsection (d) and biennially thereafter, the Secretary, in consultation with each Rio Grande Pueblo, shall— (1)review the report submitted under subsection (d); and (2)update the list of projects described in subsection (d)(1) in accordance with each factor described in subsection (b)(2), as the Secretary determines to be appropriate.
5.
Irrigation infrastructure grants
(a)
In general
The Secretary may provide grants to, and enter into cooperative agreements with, the Rio Grande Pueblos to plan, design, construct, or otherwise implement projects to repair, rehabilitate, reconstruct, or replace Pueblo irrigation infrastructure that are recommended for implementation under section 4(a)(1)(B)— (1)to increase water use efficiency and agricultural productivity for the benefit of a Rio Grande Pueblo; (2)to conserve water; or (3)to otherwise enhance water management or help avert water supply conflicts in the Rio Grande Basin. (b)
Limitation
Assistance provided under subsection (a) shall not be used for— (1)the repair, rehabilitation, or reconstruction of any major impoundment structure; (2)any on-farm improvements; or (3)the rehabilitation of any Pueblo irrigation infrastructure for the purpose of irrigating Rio Grande Pueblo land that has not been historically irrigated. (c)
Consultation
In carrying out a project under subsection (a), the Secretary shall— (1)consult with, and obtain the approval of, the applicable Rio Grande Pueblo; (2)consult with the Director of the Bureau of Indian Affairs; and (3)as appropriate, coordinate the project with any work being conducted under the irrigation operations and maintenance program of the Bureau of Indian Affairs. (d)
Cost-sharing requirement
(1)
Federal share
(A)
In general
Except as provided in subparagraph (B), the Federal share of the total cost of carrying out a project under subsection (a) shall be not more than 75 percent. (B)
Exception
The Secretary may waive or limit the non-Federal share required under subparagraph (A) if the Secretary determines, based on a demonstration of financial hardship by the Rio Grande Pueblo, that the Rio Grande Pueblo is unable to contribute the required non-Federal share. (2)
District contributions
(A)
In general
The Secretary may accept from the District a partial or total contribution toward the non-Federal share required for a project carried out under subsection (a) on land located in any of the Six Middle Rio Grande Pueblos if the Secretary determines that the project is a special project. (B)
Limitation
Nothing in subparagraph (A) requires the District to contribute to the non-Federal share of the cost of a project carried out under subsection (a). (3)
State contributions
(A)
In general
The Secretary may accept from the State a partial or total contribution toward the non-Federal share for a project carried out under subsection (a). (B)
Limitation
Nothing in subparagraph (A) requires the State to contribute to the non-Federal share of the cost of a project carried out under subsection (a). (4)
Form of non-federal share
The non-Federal share under paragraph (1)(A) may be in the form of in-kind contributions, including the contribution of any valuable asset or service that the Secretary determines would substantially contribute to a project carried out under subsection (a). (e)
Operation and maintenance
The Secretary may not use any amount made available under section 8(b) to carry out the operation or maintenance of any project carried out under subsection (a).
6.
Effect on existing authority and responsibilities
Nothing in this Act— (1)affects any existing project-specific funding authority; or (2)limits or absolves the United States from any responsibility to any Rio Grande Pueblo (including any responsibility arising from a trust relationship or from any Federal law (including regulations), Executive order, or agreement between the Federal Government and any Rio Grande Pueblo).
7.
Effect on Pueblo water rights or State water law
(a)
Pueblo water rights
Nothing in this Act (including the implementation of any project carried out in accordance with this Act) affects the right of any Pueblo to receive, divert, store, or claim a right to water, including the priority of right and the quantity of water associated with the water right under Federal or State law. (b)
State water law
Nothing in this Act preempts or affects— (1)State water law; or (2)an interstate compact governing water.
8.
Authorization of appropriations
(a)
Study
There is authorized to be appropriated to carry out section 4 $4,000,000. (b)
Projects
There is authorized to be appropriated to carry out section 5 $6,000,000 for each of fiscal years 2010 through 2019.
1.
Short title
This Act may be cited as the Rio Grande Pueblos Irrigation Infrastructure Improvement Act .
2.
Findings and purpose
(a)
Findings
Congress finds that— (1)drought, population increases, and environmental needs are exacerbating water supply issues across the western United States, including the Rio Grande Basin in New Mexico; (2)a report developed by the Bureau of Reclamation and the Bureau of Indian Affairs in 2000 identified a serious need for the rehabilitation and repair of irrigation infrastructure of the Rio Grande Pueblos; (3)inspection of existing irrigation infrastructure of the Rio Grande Pueblos shows that many key facilities, such as diversion structures and main conveyance ditches, are unsafe and barely, if at all, operable; (4)the benefits of rehabilitating and repairing irrigation infrastructure of the Rio Grande Pueblos include— (A)water conservation; (B)extending available water supplies; (C)increased agricultural productivity; (D)economic benefits; (E)safer facilities; and (F)the preservation of the culture of Indian Pueblos in the State; (5)certain Indian Pueblos in the Rio Grande Basin receive water from facilities operated or owned by the Bureau of Reclamation; and (6)rehabilitation and repair of irrigation infrastructure of the Rio Grande Pueblos would improve— (A)overall water management by the Bureau of Reclamation; and (B)the ability of the Bureau of Reclamation to help address potential water supply conflicts in the Rio Grande Basin. (b)
Purpose
The purpose of this Act is to direct the Secretary— (1)to assess the condition of the irrigation infrastructure of the Rio Grande Pueblos; (2)to establish priorities for the rehabilitation of irrigation infrastructure of the Rio Grande Pueblos in accordance with specified criteria; and (3)to implement projects to rehabilitate and improve the irrigation infrastructure of the Rio Grande Pueblos.
3.
Definitions
In this Act: (1)
2004 agreement
The term 2004 Agreement means the agreement entitled Agreement By and Between the United States of America and the Middle Rio Grande Conservancy District, Providing for the Payment of Operation and Maintenance Charges on Newly Reclaimed Pueblo Indian Lands in the Middle Rio Grande Valley, New Mexico and executed in September 2004 (including any successor agreements and amendments to the agreement). (2)
Designated engineer
The term designated engineer means a Federal employee designated under the Act of February 14, 1927 (69 Stat. 1098, chapter 138) to represent the United States in any action involving the maintenance, rehabilitation, or preservation of the condition of any irrigation structure or facility on land located in the Six Middle Rio Grande Pueblos. (3)
District
The term District means the Middle Rio Grande Conservancy District, a political subdivision of the State established in 1925. (4)
Pueblo irrigation infrastructure
The term Pueblo irrigation infrastructure means any diversion structure, conveyance facility, or drainage facility that is— (A)in existence as of the date of enactment of this Act; and (B)located on land of a Rio Grande Pueblo that is associated with— (i)the delivery of water for the irrigation of agricultural land; or (ii)the carriage of irrigation return flows and excess water from the land that is served. (5)
Rio grande basin
The term Rio Grande Basin means the headwaters of the Rio Chama and the Rio Grande Rivers (including any tributaries) from the State line between Colorado and New Mexico downstream to the elevation corresponding with the spillway crest of Elephant Butte Dam at 4,457.3 feet mean sea level. (6)
Rio grande pueblo
The term Rio Grande Pueblo means any of the 18 Pueblos that— (A)occupy land in the Rio Grande Basin; and (B)are included on the list of federally recognized Indian tribes published by the Secretary in accordance with section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a–1). (7)
Secretary
The term Secretary means the Secretary of the Interior, acting through the Commissioner of Reclamation. (8)
Six Middle Rio Grande Pueblos
The term Six Middle Rio Grande Pueblos means each of the Pueblos of Cochiti, Santo Domingo, San Felipe, Santa Ana, Sandia, and Isleta. (9)
Special project
The term special project has the meaning given the term in the 2004 Agreement. (10)
State
The term State means the State of New Mexico.
4.
Irrigation infrastructure study
(a)
Study
(1)
In general
On the date of enactment of this Act, the Secretary, in accordance with paragraph (2), and in consultation with the Rio Grande Pueblos, shall— (A)conduct a study of Pueblo irrigation infrastructure; and (B)based on the results of the study, develop a list of projects (including a cost estimate for each project), that are recommended to be implemented over a 10-year period to repair, rehabilitate, or reconstruct Pueblo irrigation infrastructure. (2)
Required consent
In carrying out paragraph (1), the Secretary shall only include each individual Rio Grande Pueblo that notifies the Secretary that the Pueblo consents to participate in— (A)the conduct of the study under paragraph (1)(A); and (B)the development of the list of projects under paragraph (1)(B) with respect to the Pueblo. (b)
Priority
(1)
Consideration of factors
(A)
In general
In developing the list of projects under subsection (a)(1)(B), the Secretary shall— (i)consider each of the factors described in paragraph (2); and (ii)prioritize the projects recommended for implementation based on— (I)a review of each of the factors; and (II)a consideration of the projected benefits of the project on completion of the project. (B)
Eligibility of projects
A project is eligible to be considered and prioritized by the Secretary if the project addresses at least 1 factor described in paragraph (2). (2)
Factors
The factors referred to in paragraph (1) are— (A)(i)the extent of disrepair of the Pueblo irrigation infrastructure; and (ii)the effect of the disrepair on the ability of the applicable Rio Grande Pueblo to irrigate agricultural land using Pueblo irrigation infrastructure; (B)whether, and the extent that, the repair, rehabilitation, or reconstruction of the Pueblo irrigation infrastructure would provide an opportunity to conserve water; (C)(i)the economic and cultural impacts that the Pueblo irrigation infrastructure that is in disrepair has on the applicable Rio Grande Pueblo; and (ii)the economic and cultural benefits that the repair, rehabilitation, or reconstruction of the Pueblo irrigation infrastructure would have on the applicable Rio Grande Pueblo; (D)the opportunity to address water supply or environmental conflicts in the applicable river basin if the Pueblo irrigation infrastructure is repaired, rehabilitated, or reconstructed; and (E)the overall benefits of the project to efficient water operations on the land of the applicable Rio Grande Pueblo. (c)
Consultation
In developing the list of projects under subsection (a)(1)(B), the Secretary shall consult with the Director of the Bureau of Indian Affairs (including the designated engineer with respect to each proposed project that affects the Six Middle Rio Grande Pueblos), the Chief of the Natural Resources Conservation Service, and the Chief of Engineers to evaluate the extent to which programs under the jurisdiction of the respective agencies may be used— (1)to assist in evaluating projects to repair, rehabilitate, or reconstruct Pueblo irrigation infrastructure; and (2)to implement— (A)a project recommended for implementation under subsection (a)(1)(B); or (B)any other related project (including on-farm improvements) that may be appropriately coordinated with the repair, rehabilitation, or reconstruction of Pueblo irrigation infrastructure to improve the efficient use of water in the Rio Grande Basin. (d)
Report
Not later than 2 years after the date of enactment of this Act, the Secretary shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Resources of the House of Representatives a report that includes— (1)the list of projects recommended for implementation under subsection (a)(1)(B); and (2)any findings of the Secretary with respect to— (A)the study conducted under subsection (a)(1)(A); (B)the consideration of the factors under subsection (b)(2); and (C)the consultations under subsection (c). (e)
Periodic review
Not later than 4 years after the date on which the Secretary submits the report under subsection (d) and every 4 years thereafter, the Secretary, in consultation with each Rio Grande Pueblo, shall— (1)review the report submitted under subsection (d); and (2)update the list of projects described in subsection (d)(1) in accordance with each factor described in subsection (b)(2), as the Secretary determines to be appropriate.
5.
Irrigation infrastructure grants
(a)
In general
The Secretary may provide grants to, and enter into contracts or other agreements with, the Rio Grande Pueblos to plan, design, construct, or otherwise implement projects to repair, rehabilitate, reconstruct, or replace Pueblo irrigation infrastructure that are recommended for implementation under section 4(a)(1)(B)— (1)to increase water use efficiency and agricultural productivity for the benefit of a Rio Grande Pueblo; (2)to conserve water; or (3)to otherwise enhance water management or help avert water supply conflicts in the Rio Grande Basin. (b)
Limitation
Assistance provided under subsection (a) shall not be used for— (1)the repair, rehabilitation, or reconstruction of any major impoundment structure; or (2)any on-farm improvements. (c)
Consultation
In carrying out a project under subsection (a), the Secretary shall— (1)consult with, and obtain the approval of, the applicable Rio Grande Pueblo; (2)consult with the Director of the Bureau of Indian Affairs; and (3)as appropriate, coordinate the project with any work being conducted under the irrigation operations and maintenance program of the Bureau of Indian Affairs. (d)
Cost-sharing requirement
(1)
Federal share
(A)
In general
Except as provided in subparagraph (B), the Federal share of the total cost of carrying out a project under subsection (a) shall be not more than 75 percent. (B)
Exception
The Secretary may waive or limit the non-Federal share required under subparagraph (A) if the Secretary determines, based on a demonstration of financial hardship by the Rio Grande Pueblo, that the Rio Grande Pueblo is unable to contribute the required non-Federal share. (2)
District contributions
(A)
In general
The Secretary may accept from the District a partial or total contribution toward the non-Federal share required for a project carried out under subsection (a) on land located in any of the Six Middle Rio Grande Pueblos if the Secretary determines that the project is a special project. (B)
Limitation
Nothing in subparagraph (A) requires the District to contribute to the non-Federal share of the cost of a project carried out under subsection (a). (3)
State contributions
(A)
In general
The Secretary may accept from the State a partial or total contribution toward the non-Federal share for a project carried out under subsection (a). (B)
Limitation
Nothing in subparagraph (A) requires the State to contribute to the non-Federal share of the cost of a project carried out under subsection (a). (4)
Form of non-federal share
The non-Federal share under paragraph (1)(A) may be in the form of in-kind contributions, including the contribution of any valuable asset or service that the Secretary determines would substantially contribute to a project carried out under subsection (a). (e)
Operation and maintenance
The Secretary may not use any amount made available under section 8(b) to carry out the operation or maintenance of any project carried out under subsection (a).
6.
Effect on existing authority and responsibilities
Nothing in this Act— (1)affects any existing project-specific funding authority; or (2)limits or absolves the United States from any responsibility to any Rio Grande Pueblo (including any responsibility arising from a trust relationship or from any Federal law (including regulations), Executive order, or agreement between the Federal Government and any Rio Grande Pueblo).
7.
Effect on Pueblo water rights or State water law
(a)
Pueblo water rights
Nothing in this Act (including the implementation of any project carried out in accordance with this Act) affects the right of any Pueblo to receive, divert, store, or claim a right to water, including the priority of right and the quantity of water associated with the water right under Federal or State law. (b)
State water law
Nothing in this Act preempts or affects— (1)State water law; or (2)an interstate compact governing water.
8.
Authorization of appropriations
(a)
Study
There is authorized to be appropriated to carry out section 4 $4,000,000. (b)
Projects
There is authorized to be appropriated to carry out section 5 $6,000,000 for each of fiscal years 2010 through 2019.
September 16, 2008 Reported with an amendment