[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 965 Reported in Senate (RS)]

                                                       Calendar No. 257
111th CONGRESS
  2d Session
                                 S. 965

                          [Report No. 111-117]

 To approve the Taos Pueblo Indian Water Rights Settlement Agreement, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 4, 2009

 Mr. Bingaman (for himself and Mr. Udall of New Mexico) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             Indian Affairs

                            January 20, 2010

                Reported by Mr. Dorgan, with amendments
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
 To approve the Taos Pueblo Indian Water Rights Settlement Agreement, 
                        and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Taos Pueblo Indian 
Water Rights Settlement Act''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Purpose.
Sec. 3. Definitions.
Sec. 4. Pueblo rights.
Sec. 5. Pueblo water infrastructure and watershed enhancement.
Sec. 6. Taos Pueblo Water Development Fund.
Sec. 7. Marketing.
Sec. 8. Mutual-Benefit Projects.
Sec. 9. San Juan-Chama Project contracts.
Sec. 10. Authorizations, ratifications, confirmations, and conditions 
                            precedent.
Sec. 11. Waivers and releases.
Sec. 12. Interpretation and enforcement.
Sec. 13. Disclaimer.

SEC. 2. PURPOSE.

    The purposes of this Act are--
            (1) to approve, ratify, and confirm the Taos Pueblo Indian 
        Water Rights Settlement Agreement;
            (2) to authorize and direct the Secretary to execute the 
        Settlement Agreement and to perform all obligations of the 
        Secretary under the Settlement Agreement and this Act; and
            (3) to authorize all actions and appropriations necessary 
        for the United States to meet its obligations under the 
        Settlement Agreement and this Act.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Eligible non-pueblo entities.--The term ``Eligible Non-
        Pueblo Entities'' means the Town of Taos, El Prado Water and 
        Sanitation District (``EPWSD''), and the New Mexico Department 
        of Finance and Administration Local Government Division on 
        behalf of the Acequia Madre del Rio Lucero y del Arroyo Seco, 
        the Acequia Madre del Prado, the Acequia del Monte, the Acequia 
        Madre del Rio Chiquito, the Upper Ranchitos Mutual Domestic 
        Water Consumers Association, the Upper Arroyo Hondo Mutual 
        Domestic Water Consumers Association, and the Llano Quemado 
        Mutual Domestic Water Consumers Association.
            (2) Enforcement date.--The term ``Enforcement Date'' means 
        the date upon which the Secretary publishes the notice required 
        by section 10(f)(1).
            (3) Mutual-benefit projects.--The term ``Mutual-Benefit 
        Projects'' means the projects described and identified in 
        articles 6 and 10.1 of the Settlement Agreement.
            (4) Partial final decree.--The term ``Partial Final 
        Decree'' means the Decree entered in New Mexico v. Abeyta and 
        New Mexico v. Arellano, Civil Nos. 7896-BB (U.S.6 D.N.M.) and 
        7939-BB (U.S. D.N.M) (consolidated), for the resolution of the 
        Pueblo's water right claims and which is substantially in the 
        form agreed to by the Parties and attached to the Settlement 
        Agreement as Attachment 5.
            (5) Parties.--The term ``Parties'' means the Parties to the 
        Settlement Agreement, as identified in article 1 of the 
        Settlement Agreement.
            (6) Pueblo.--The term ``Pueblo'' means the Taos Pueblo, a 
        sovereign Indian tribe duly recognized by the United States of 
        America.
            (7) Pueblo lands.--The term ``Pueblo lands'' means those 
        lands located within the Taos Valley to which the Pueblo, or 
        the United States in its capacity as trustee for the Pueblo, 
        holds title subject to Federal law limitations on alienation. 
        Such lands include Tracts A, B, and C, the Pueblo's land grant, 
        the Blue Lake Wilderness Area, and the Tenorio and Karavas 
        Tracts and are generally depicted in Attachment 2 to the 
        Settlement Agreement.
            (8) San juan-chama project.--The term ``San Juan-Chama 
        Project'' means the Project authorized by section 8 of the Act 
        of June 13, 1962 (76 Stat. 96, 97), and the Act of April 11, 
        1956 (70 Stat. 105).
            (9) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.
            (10) Settlement agreement.--The term ``Settlement 
        Agreement'' means the contract dated March 31, 2006, between 
        and among--
                    (A) the United States, acting solely in its 
                capacity as trustee for Taos Pueblo;
                    (B) the Taos Pueblo, on its own behalf;
                    (C) the State of New Mexico;
                    (D) the Taos Valley Acequia Association and its 55 
                member ditches (``TVAA'');
                    (E) the Town of Taos;
                    (F) EPWSD; and
                    (G) the 12 Taos area Mutual Domestic Water 
                Consumers Associations (``MDWCAs''), as amended to 
                conform with this Act.
            (11) State engineer.--The term ``State Engineer'' means the 
        New Mexico State Engineer.
            (12) Taos valley.--The term ``Taos Valley'' means the 
        geographic area depicted in Attachment 4 of the Settlement 
        Agreement.

SEC. 4. PUEBLO RIGHTS.

    (a) In General.--Those rights to which the Pueblo is entitled under 
the Partial Final Decree shall be held in trust by the United States on 
behalf of the Pueblo and shall not be subject to forfeiture, 
abandonment, or permanent alienation.
    (b) Subsequent Act of Congress.--The Pueblo shall not be denied all 
or any part of its rights held in trust absent its consent unless such 
rights are explicitly abrogated by an Act of Congress hereafter 
enacted.

SEC. 5. PUEBLO WATER INFRASTRUCTURE AND WATERSHED ENHANCEMENT.

    (a) In General.--The Secretary, acting through the Commissioner of 
Reclamation, shall provide grants and technical assistance to the 
Pueblo on a nonreimbursable basis to--
            (1) plan, permit, design, engineer, construct, reconstruct, 
        replace, or rehabilitate water production, treatment, and 
        delivery infrastructure;
            (2) restore, preserve, and protect the environment 
        associated with the Buffalo Pasture area; and
            (3) protect and enhance watershed conditions.
    (b) Availability of Grants.--Upon the Enforcement Date, all amounts 
appropriated pursuant to section 10(c)(1) or made available from other 
authorized sources, shall be available in grants to the Pueblo after 
the requirements of subsection (c) have been met.
    (c) Plan.--The Secretary shall provide financial assistance 
pursuant to subsection (a) upon the Pueblo's submittal of a plan that 
identifies the projects to be implemented consistent with the purposes 
of this section and describes how such projects are consistent with the 
Settlement Agreement.
    (d) Early Funds.--Notwithstanding subsection (b), $10,000,000 of 
the monies authorized to be appropriated pursuant to section 10(c)(1)--
            (1) shall be made available in grants to the Pueblo by the 
        Secretary upon appropriation or availability of the funds from 
        other authorized sources; and
            (2) shall be distributed by the Secretary to the Pueblo on 
        receipt by the Secretary from the Pueblo of a written notice, a 
        Tribal Council resolution that describes the purposes under 
        subsection (a) for which the monies will be used, and a plan 
        under subsection (c) for this portion of the funding.

SEC. 6. TAOS PUEBLO WATER DEVELOPMENT FUND.

    (a) Establishment.--There is established in the Treasury of the 
United States a fund to be known as the ``Taos Pueblo Water Development 
Fund'' (hereinafter, ``Fund'') to be used to pay or reimburse costs 
incurred by the Pueblo for--
            (1) acquiring water rights;
            (2) planning, permitting, designing, engineering, 
        constructing, reconstructing, replacing, rehabilitating, 
        operating, or repairing water production, treatment or delivery 
        infrastructure, on-farm improvements, or wastewater 
        infrastructure;
            (3) restoring, preserving and protecting the Buffalo 
        Pasture, including planning, permitting, designing, 
        engineering, constructing, operating, managing and replacing 
        the Buffalo Pasture Recharge Project;
            (4) administering the Pueblo's water rights acquisition 
        program and water management and administration system; and
            (5) for watershed protection and enhancement, support of 
        agriculture, water-related Pueblo community welfare and 
        economic development, and costs related to the negotiation, 
        authorization, and implementation of the Settlement Agreement.
    (b) Management of the Fund.--The Secretary shall manage the Fund, 
invest amounts in the Fund, and make monies available from the Fund for 
distribution to the Pueblo consistent with the American Indian Trust 
Fund Management Reform Act of 1994 (25 U.S.C. 4001, et seq.) 
(hereinafter, ``Trust Fund Reform Act''), this Act, and the Settlement 
Agreement.
    (c) Investment of the Fund.--Upon the Enforcement Date, the 
Secretary shall invest amounts in the Fund in accordance with--
            (1) the Act of April 1, 1880 (21 Stat. 70, ch. 41, 25 
        U.S.C. 161);
            (2) the first section of the Act of June 24, 1938 (52 Stat. 
        1037, ch. 648, 25 U.S.C. 162a); and
            (3) the American Indian Trust Fund Management Reform Act of 
        1994 (25 U.S.C. 4001 et seq.).
    (d) Availability of Amounts From the Fund.--Upon the Enforcement 
Date, all monies deposited in the Fund pursuant to section 10(c)(2) or 
made available from other authorized sources shall be available to the 
Pueblo for expenditure or withdrawal after the requirements of 
subsection (e) have been met.
    (e) Expenditures and Withdrawal.--
            (1) Tribal management plan.--
                    (A) In general.--The Pueblo may withdraw all or 
                part of the Fund on approval by the Secretary of a 
                tribal management plan as described in the Trust Fund 
                Reform Act.
                    (B) Requirements.--In addition to the requirements 
                under the Trust Fund Reform Act, the tribal management 
                plan shall require that the Pueblo spend any funds in 
                accordance with the purposes described in subsection 
                (a).
            (2) Enforcement.--The Secretary may take judicial or 
        administrative action to enforce the requirement that monies 
        withdrawn from the Fund are used for the purposes specified in 
        subsection (a).
            (3) Liability.--If the Pueblo exercises the right to 
        withdraw monies from the Fund, neither the Secretary nor the 
        Secretary of the Treasury shall retain any liability for the 
        expenditure or investment of the monies withdrawn.
            (4) Expenditure plan.--
                    (A) In general.--The Pueblo shall submit to the 
                Secretary for approval an expenditure plan for any 
                portions of the funds made available under this Act 
                that the Pueblo does not withdraw under paragraph 
                (1)(A).
                    (B) Description.--The expenditure plan shall 
                describe the manner in which, and the purposes for 
                which, amounts remaining in the Fund will be used.
                    (C) Approval.--On receipt of an expenditure plan 
                under subparagraph (A), the Secretary shall approve the 
                plan if the Secretary determines that the plan is 
                reasonable and consistent with this Act.
            (5) Annual report.--The Pueblo shall submit to the 
        Secretary an annual report that describes all expenditures from 
        the Fund during the year covered by the report.
    (f) Funds Available Upon Appropriation.--Notwithstanding subsection 
(d), $15,000,000 of the monies authorized to be appropriated pursuant 
to section 10(c)(2)--
            (1) shall be available upon appropriation or made available 
        from other authorized sources for the Pueblo's acquisition of 
        water rights pursuant to Article 5.1.1.2.3 of the Settlement 
        Agreement, the Buffalo Pasture Recharge Project, implementation 
        of the Pueblo's water rights acquisition program and water 
        management and administration system, the design, planning, and 
        permitting of water or wastewater infrastructure eligible for 
        funding under sections 5 or 6, or costs related to the 
        negotiation, authorization, and implementation of the 
        Settlement Agreement; and
            (2) shall be distributed by the Secretary to the Pueblo on 
        receipt by the Secretary from the Pueblo of a written notice 
        and a Tribal Council resolution that describes the purposes 
        under paragraph (1) for which the monies will be used.
    (g) No Per Capita Distributions.--No part of the Fund shall be 
distributed on a per capita basis to members of the Pueblo.

SEC. 7. MARKETING.

    (a) Pueblo Water Rights.--Subject to the approval of the Secretary 
in accordance with subsection (e), the Pueblo may market water rights 
secured to it under the Settlement Agreement and Partial Final Decree, 
provided that such marketing is in accordance with this section.
    (b) Pueblo Contract Rights to San Juan-chama Project Water.--
Subject to the approval of the Secretary in accordance with subsection 
(e), the Pueblo may subcontract water made available to the Pueblo 
under the contract authorized under section 9(b)(1)(A) to third parties 
to supply water for use within or without the Taos Valley, provided 
that the delivery obligations under such subcontract are not 
inconsistent with the Secretary's existing San Juan-Chama Project 
obligations and such subcontract is in accordance with this section.
    (c) Limitation.--
            (1) In general.--Diversion or use of water off Pueblo lands 
        pursuant to Pueblo water rights or Pueblo contract rights to 
        San Juan-Chama Project water shall be subject to and not 
        inconsistent with the same requirements and conditions of State 
        law, any applicable Federal law, and any applicable interstate 
        compact as apply to the exercise of water rights or contract 
        rights to San Juan-Chama Project water held by non-Federal, 
        non-Indian entities, including all applicable State Engineer 
        permitting and reporting requirements.
            (2) Effect on water rights.--Such diversion or use off 
        Pueblo lands under paragraph (1) shall not impair water rights 
        or increase surface water depletions within the Taos Valley.
    (d) Maximum Term.--
            (1) In general.--The maximum term of any water use lease or 
        subcontract, including all renewals, shall not exceed 99 years 
        in duration.
            (2) Alienation of rights.--The Pueblo shall not permanently 
        alienate any rights it has under the Settlement Agreement, the 
        Partial Final Decree, and this Act.
    (e) Approval of Secretary.--The Secretary shall approve or 
disapprove any lease or subcontract submitted by the Pueblo for 
approval not later than--
            (1) 180 days after submission; or
            (2) 60 days after compliance, if required, with section 
        102(2)(C) of the National Environmental Policy Act of 1969 (42 
        U.S.C. 4332(2)(C)), or any other requirement of Federal law, 
        whichever is later, provided that no Secretarial approval shall 
        be required for any water use lease <DELETED>or subcontract</DELETED> 
        with a term of less than 7 years.
    (f) No Forfeiture or Abandonment.--The nonuse by a lessee or 
subcontractor of the Pueblo of any right to which the Pueblo is 
entitled under the Partial Final Decree shall in no event result in a 
forfeiture, abandonment, relinquishment, or other loss of all or any 
part of those rights.
    (g) No Preemption.--
            (1) In general.--The approval authority of the Secretary 
        provided under subsection (e) shall not amend, construe, 
        supersede, or preempt any State or Federal law, interstate 
        compact, or international treaty that pertains to the Colorado 
        River, the Rio Grande, or any of their tributaries, including 
        the appropriation, use, development, storage, regulation, 
        allocation, conservation, exportation, or quantity of those 
        waters.
            (2) Applicable law.--The provisions of section 2116 of the 
        Revised Statutes (25 U.S.C. 177) shall not apply to any water 
        made available under the Settlement Agreement.
    (h) No Prejudice.--Nothing in this Act shall be construed to 
establish, address, prejudice, or prevent any party from litigating 
whether or to what extent any applicable State law, Federal law, or 
interstate compact does or does not permit, govern, or apply to the use 
of the Pueblo's water outside of New Mexico.

SEC. 8. MUTUAL-BENEFIT PROJECTS.

    (a) In General.--Upon the Enforcement Date, the Secretary, acting 
through the Commissioner of Reclamation, shall provide financial 
assistance in the form of grants on a nonreimbursable basis to Eligible 
Non-Pueblo Entities to plan, permit, design, engineer, and construct 
the Mutual-Benefit Projects in accordance with the Settlement 
Agreement--
            (1) to minimize adverse impacts on the Pueblo's water 
        resources by moving future non-Indian ground water pumping away 
        from the Pueblo's Buffalo Pasture; and
            (2) to implement the resolution of a dispute over the 
        allocation of certain surface water flows between the Pueblo 
        and non-Indian irrigation water right owners in the community 
        of Arroyo Seco Arriba.
    (b) Cost-sharing.--
            (1) Federal share.--The Federal share of the total cost of 
        planning, designing, and constructing the Mutual-Benefit 
        Projects authorized in subsection (a) shall be 75 percent and 
        shall be nonreimbursable.
            (2) Non-federal share.--The non-Federal share of the total 
        cost of planning, designing, and constructing the Mutual-
        Benefit Projects shall be 25 percent and 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 completing the Mutual-Benefit 
        Projects.

SEC. 9. SAN JUAN-CHAMA PROJECT CONTRACTS.

    (a) In General.--Contracts issued under this section shall be in 
accordance with this Act and the Settlement Agreement.
    (b) Contracts for San Juan-chama Project Water.--
            (1) In general.--The Secretary shall enter into 3 repayment 
        contracts by <DELETED>December 31, 2009</DELETED>not later than 
        180 days after the date of enactment of this Act, for the 
        delivery of San Juan-Chama Project water in the following 
        amounts:
                    (A) 2,215 acre-feet/annum to the Pueblo.
                    (B) 366 acre-feet/annum to the Town of Taos.
                    (C) 40 acre-feet/annum to EPWSD.
            (2) Requirements.--Each such contract shall provide that if 
        the conditions precedent set forth in section 10(f)(2) have not 
        been fulfilled by December 31, <DELETED>2015</DELETED>2016, the 
        contract shall expire on that date.
            (3) Applicable law.--Public Law 87-483 (76 Stat. 97) 
        applies to the contracts entered into under paragraph (1) and 
        no preference shall be applied as a result of section 4(a) with 
        regard to the delivery or distribution of San Juan-Chama 
        Project water or the management or operation of the San Juan-
        Chama Project.
    (c) Waiver.--With respect to the contract authorized and required 
by subsection (b)(1)(A) and notwithstanding the provisions of Public 
Law 87-483 (76 Stat. 96) or any other provision of law--
            (1) the Secretary shall waive the entirety of the Pueblo's 
        share of the construction costs, both principal and the 
        interest, for the San Juan-Chama Project and pursuant to that 
        waiver, the Pueblo's share of all construction costs for the 
        San Juan-Chama Project, inclusive of both principal and 
        interest shall be nonreimbursable; and
            (2) the Secretary's waiver of the Pueblo's share of the 
        construction costs for the San Juan-Chama Project will not 
        result in an increase in the pro rata shares of other San Juan-
        Chama Project water contractors, but such costs shall be 
        absorbed by the United States Treasury or otherwise 
        appropriated to the Department of the Interior.

SEC. 10. AUTHORIZATIONS, RATIFICATIONS, CONFIRMATIONS, AND CONDITIONS 
              PRECEDENT.

    (a) Ratification.--
            (1) In general.--Except to the extent that any provision of 
        the Settlement Agreement conflicts with any provision of this 
        Act, the Settlement Agreement is authorized, ratified, and 
        confirmed.
            (2) Amendments.--To the extent amendments are executed to 
        make the Settlement Agreement consistent with this Act, such 
        amendments are also authorized, ratified, and confirmed.
    (b) Execution of Settlement Agreement.--To the extent that the 
Settlement Agreement does not conflict with this Act, the Secretary 
shall execute the Settlement Agreement, including all exhibits to the 
Settlement Agreement requiring the signature of the Secretary and any 
amendments necessary to make the Settlement Agreement consistent with 
this Act, after the Pueblo has executed the Settlement Agreement and 
any such amendments.
    (c) Authorization of Appropriations.--
            (1) Taos pueblo infrastructure and watershed fund.--There 
        is authorized to be appropriated to the Secretary to provide 
        grants pursuant to section 5, $30,000,000, as adjusted under 
        paragraph (4), for the period of fiscal years 2010 through 
        2016.
            (2) Taos pueblo water development fund.--There is 
        authorized to be appropriated to the Taos Pueblo Water 
        Development Fund, established at section 6(a), $58,000,000, as 
        adjusted under paragraph (4), for the period of fiscal years 
        2010 through 2016.
            (3) Mutual-benefit projects funding.--There is further 
        authorized to be appropriated to the Secretary to provide 
        grants pursuant to section 8, a total of $33,000,000, as 
        adjusted under paragraph (4), for the period of fiscal years 
        2010 through 2016.
            (4) Adjustments to amounts authorized.--The amounts 
        authorized to be appropriated under paragraphs (1) through (3) 
        shall be adjusted by such amounts as may be required by reason 
        of changes since April 1, 2007, in construction costs, as 
        indicated by engineering cost indices applicable to the types 
        of construction or rehabilitation involved.
            (5) Deposit in fund.--Except for the funds to be provided 
        to the Pueblo pursuant to section 5(d), the Secretary shall 
        deposit the funds made available pursuant to paragraphs (1) and 
        (3) into a Taos Settlement Fund to be established within the 
        Treasury of the United States so that such funds may be made 
        available to the Pueblo and the Eligible Non-Pueblo Entities 
        upon the Enforcement Date as set forth in sections 5(b) and 
        8(a).
    (d) Authority of the Secretary.--The Secretary is authorized to 
enter into such agreements and to take such measures as the Secretary 
may deem necessary or appropriate to fulfill the intent of the 
Settlement Agreement and this Act.
    (e) Environmental Compliance.--
            (1) Effect of execution of settlement agreement.--The 
        Secretary's execution of the Settlement Agreement shall not 
        constitute a major Federal action under the National 
        Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
            (2) Compliance with environmental laws.--In carrying out 
        this Act, the Secretary shall comply with each law of the 
        Federal Government relating to the protection of the 
        environment, including--
                    (A) the National Environmental Policy Act of 1969 
                (42 U.S.C. 4321 et seq.); and
                    (B) the Endangered Species Act of 1973 (16 U.S.C. 
                1531 et seq.).
    (f) Conditions Precedent and Secretarial Finding.--
            (1) In general.--Upon the fulfillment of the conditions 
        precedent described in paragraph (2), the Secretary shall 
        publish in the Federal Register a statement of finding that the 
        conditions have been fulfilled.
            (2) Conditions.--The conditions precedent referred to in 
        paragraph (1) are the following:
                    (A) The President has signed into law the Taos 
                Pueblo Indian Water Rights Settlement Act.
                    (B) To the extent that the Settlement Agreement 
                conflicts with this Act, the Settlement Agreement has 
                been revised to conform with this Act.
                    (C) The Settlement Agreement, so revised, including 
                waivers and releases pursuant to section 11, has been 
                executed by the Parties and the Secretary prior to the 
                Parties' motion for entry of the Partial Final Decree.
                    (D) Congress has fully appropriated or the 
                Secretary has provided from other authorized sources 
                all funds authorized by paragraphs (1) through (3) of 
                subsection (c) so that the entire amounts so authorized 
                have been previously provided to the Pueblo pursuant to 
                sections 5 and 6, or placed in the Taos Pueblo Water 
                Development Fund or the Taos Settlement Fund as 
                directed in subsection (c).
                    (E) The Legislature of the State of New Mexico has 
                fully appropriated the funds for the State 
                contributions as specified in the Settlement Agreement, 
                and those funds have been deposited in appropriate 
                accounts.
                    (F) The State of New Mexico has enacted legislation 
                that amends NMSA 1978, section 72-6-3 to state that a 
                water use due under a water right secured to the Pueblo 
                under the Settlement Agreement or the Partial Final 
                Decree may be leased for a term, including all 
                renewals, not to exceed 99 years, provided that this 
                condition shall not be construed to require that said 
                amendment state that any State law based water rights 
                acquired by the Pueblo or by the United States on 
                behalf of the Pueblo may be leased for said term.
                    (G) A Partial Final Decree that sets forth the 
                water rights and contract rights to water to which the 
                Pueblo is entitled under the Settlement Agreement and 
                this Act and that substantially conforms to the 
                Settlement Agreement and Attachment 5 thereto has been 
                approved by the Court and has become final and 
                nonappealable.
    (g) Enforcement Date.--The Settlement Agreement shall become 
enforceable, and the waivers and releases executed pursuant to section 
11 and the limited waiver of sovereign immunity set forth in section 
12(a) shall become effective, as of the date that the Secretary 
publishes the notice required by subsection (f)(1).
    (h) Expiration Date.--
            (1) In general.--If all of the conditions precedent 
        described in section (f)(2) have not been fulfilled by December 
        31, 2016, the Settlement Agreement shall be null and void, the 
        waivers and releases executed pursuant to section 11 and the 
        sovereign immunity waivers in section 12(a) shall not become 
        effective, and any unexpended Federal funds, together with any 
        income earned thereon, and title to any property acquired or 
        constructed with expended Federal funds, shall be returned to 
        the Federal Government, unless otherwise agreed to by the 
        Parties in writing and approved by Congress.
            (2) Exception.--Notwithstanding subsection (h)(1) or any 
        other provision of law, any unexpended Federal funds, together 
        with any income earned thereon, made available under sections 
        5(d) and 6(f) and title to any property acquired or constructed 
        with expended Federal funds made available under sections 5(d) 
        and 6(f) shall be retained by the Pueblo.
            (3) Right to set-off.--In the event the conditions 
        precedent set forth in subsection (f)(2) have not been 
        fulfilled by December 31, 2016, the United States shall be 
        entitled to set off any funds expended or withdrawn from the 
        amount appropriated pursuant to paragraphs (1) and (2) of 
        subsection (c) or made available from other authorized sources, 
        together with any interest accrued, against any claims asserted 
        by the Pueblo against the United States relating to water 
        rights in the Taos Valley.

SEC. 11. WAIVERS AND RELEASES.

    (a) Claims by the Pueblo and the United States.--In return for 
recognition of the Pueblo's water rights and other benefits, including 
but not limited to the commitments by non-Pueblo parties, as set forth 
in the Settlement Agreement and this Act, the Pueblo, on behalf of 
itself and its members, and the United States acting in its capacity as 
trustee for the Pueblo are authorized to execute a waiver and release 
of claims against the parties to New Mexico v. Abeyta and New Mexico v. 
Arellano, Civil Nos. 7896-BB (U.S.6 D.N.M.) and 7939-BB (U.S. D.N.M.) 
(consolidated) from--
            (1) all claims for water rights in the Taos Valley that the 
        Pueblo, or the United States acting in its capacity as trustee 
        for the Pueblo, asserted, or could have asserted, in any 
        proceeding, including but not limited to in New Mexico v. 
        Abeyta and New Mexico v. Arellano, Civil Nos. 7896-BB (U.S.6 
        D.N.M.) and 7939-BB (U.S. D.N.M.) (consolidated), up to and 
        including the Enforcement Date, except to the extent that such 
        rights are recognized in the Settlement Agreement or this Act;
            (2) all claims for water rights, whether for consumptive or 
        nonconsumptive use, in the Rio Grande mainstream or its 
        tributaries that the Pueblo, or the United States acting in its 
        capacity as trustee for the Pueblo, asserted or could assert in 
        any water rights adjudication proceedings except those claims 
        based on Pueblo or United States ownership of lands or water 
        rights acquired after the Enforcement Date, provided that 
        nothing in this paragraph shall prevent the Pueblo or the 
        United States from fully participating in the inter se phase of 
        any such water rights adjudication proceedings;
            (3) all claims for damages, losses or injuries to water 
        rights or claims of interference with, diversion or taking of 
        water (including but not limited to claims for injury to lands 
        resulting from such damages, losses, injuries, interference 
        with, diversion, or taking) in the Rio Grande mainstream or its 
        tributaries or for lands within the Taos Valley that accrued at 
        any time up to and including the Enforcement Date; and
            (4) all claims against the State of New Mexico, its 
        agencies, or employees relating to the negotiation or the 
        adoption of the Settlement Agreement.
    (b) Claims by the Pueblo Against the United States.--The Pueblo, on 
behalf of itself and its members, is authorized to execute a waiver and 
release of--
            (1) all claims against the United States, its agencies, or 
        employees relating to claims for water rights in or water of 
        the Taos Valley that the United States acting in its capacity 
        as trustee for the Pueblo asserted, or could have asserted, in 
        any proceeding, including but not limited to in New Mexico v. 
        Abeyta and New Mexico v. Arellano, Civil Nos. 7896-BB (U.S.6 
        D.N.M.) and 7939-BB (U.S. D.N.M.) (consolidated);
            (2) all claims against the United States, its agencies, or 
        employees relating to damages, losses, or injuries to water, 
        water rights, land, or natural resources due to loss of water 
        or water rights (including but not limited to 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 or taking of water or water 
        rights, or claims relating to failure to protect, acquire, 
        replace, or develop water, water rights or water 
        infrastructure) in the Rio Grande mainstream or its tributaries 
        or within the Taos Valley that first accrued at any time up to 
        and including the Enforcement Date;
            (3) all claims against the United States, its agencies, or 
        employees for an accounting of funds appropriated by the Act of 
        March 4, 1929 (45 Stat. 1562), the Act of March 4, 1931 (46 
        Stat. 1552), the Act of June 22, 1936 (49 Stat. 1757), the Act 
        of August 9, 1937 (50 Stat. 564), and the Act of May 9, 1938 
        (52 Stat. 291), as authorized by the Pueblo Lands Act of June 
        7, 1924 (43 Stat. 636), and the Pueblo Lands Act of May 31, 
        1933 (48 Stat. 108), and for breach of trust relating to funds 
        for water replacement appropriated by said Acts that first 
        accrued before the date of enactment of this Act;
            (4) all claims against the United States, its agencies, or 
        employees relating to the pending litigation of claims relating 
        to the Pueblo's water rights in New Mexico v. Abeyta and New 
        Mexico v. Arellano, Civil Nos. 7896-BB (U.S.6 D.N.M.) and 7939-
        BB (U.S. D.N.M.) (consolidated); and
            (5) all claims against the United States, its agencies, or 
        employees relating to the negotiation, Execution or the 
        adoption of the Settlement Agreement, exhibits thereto, the 
        Final Decree, or this Act.
    (c) Reservation of Rights and Retention of Claims.--Notwithstanding 
the waivers and releases authorized in this Act, the Pueblo on behalf 
of itself and its members and the United States acting in its capacity 
as trustee for the Pueblo retain--
            (1) all claims for enforcement of the Settlement Agreement, 
        the Final Decree, including the Partial Final Decree, the San 
        Juan-Chama Project contract between the Pueblo and the United 
        States, or this Act;
            (2) all claims against persons other than the Parties to 
        the Settlement Agreement for damages, losses or injuries to 
        water rights or claims of interference with, diversion or 
        taking of water rights (including but not limited to claims for 
        injury to lands resulting from such damages, losses, injuries, 
        interference with, diversion, or taking of water rights) within 
        the Taos Valley arising out of activities occurring outside the 
        Taos Valley or the Taos Valley Stream System;
            (3) all rights to use and protect water rights acquired 
        after the date of enactment of this Act;
            (4) all rights to use and protect water rights acquired 
        pursuant to State law, to the extent not inconsistent with the 
        Partial Final Decree and the Settlement Agreement (including 
        water rights for the land the Pueblo owns in Questa, New 
        Mexico);
            (5) all claims relating to activities affecting the quality 
        of water including but not limited to any claims the Pueblo 
        might have under the Comprehensive Environmental Response, 
        Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et 
        seq.) (including but not limited to claims for damages to 
        natural resources), the Safe Drinking Water Act (42 U.S.C. 300f 
        et seq.), the Federal Water Pollution Control Act (33 U.S.C. 
        1251 et seq.), and the regulations implementing those Acts;
            (6) all claims relating to damages, losses, or injuries to 
        land or natural resources not due to loss of water or water 
        rights (including but not limited to hunting, fishing, 
        gathering, or cultural rights); and
            (7) all rights, remedies, privileges, immunities, powers, 
        and claims not specifically waived and released pursuant to 
        this Act and the Settlement Agreement.
    (d) Effect of Section.--Nothing in the Settlement Agreement or this 
Act--
            (1) affects the ability of the United States acting in its 
        sovereign capacity to take actions authorized by law, including 
        but not limited to any laws relating to health, safety, or the 
        environment, including but not limited to the Federal Water 
        Pollution Control Act (33 U.S.C. 1251 et seq.), the Safe 
        Drinking Water Act (42 U.S.C. 300f et seq.), the Comprehensive 
        Environmental Response, Compensation, and Liability Act of 1980 
        (42 U.S.C. 9601 et seq.), the Solid Waste Disposal Act (42 
        U.S.C. 6901 et seq.), and the regulations implementing such 
        Acts;
            (2) affects the ability of the United States to take 
        actions acting in its capacity as trustee for any other Indian 
        tribe or allottee;
            (3) confers jurisdiction on any State court to--
                    (A) interpret Federal law regarding health, safety, 
                or the environment or determine the duties of the 
                United States or other parties pursuant to such Federal 
                law; or
                    (B) conduct judicial review of Federal agency 
                action; or
            (4) waives any claim of a member of the Pueblo in an 
        individual capacity that does not derive from a right of the 
        Pueblo.
    (e) Tolling of Claims.--
            (1) In general.--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 earlier of--
                    (A) December 31, 2016; or
                    (B) the Enforcement Date.
            (2) Effect of subsection.--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) Limitation.--Nothing in this subsection precludes the 
        tolling of any period of limitations or any time-based 
        equitable defense under any other applicable law.

SEC. 12. INTERPRETATION AND ENFORCEMENT.

    (a) Limited Waiver of Sovereign Immunity.--Upon and after the 
Enforcement Date, if any Party to the Settlement Agreement brings an 
action in any court of competent jurisdiction over the subject matter 
relating only and directly to the interpretation or enforcement of the 
Settlement Agreement or this Act, and names the United States or the 
Pueblo as a party, then the United States, the Pueblo, or both may be 
added as a party to any such action, and any claim by the United States 
or the Pueblo to sovereign immunity from the action is waived, but only 
for the limited and sole purpose of such interpretation or enforcement, 
and no waiver of sovereign immunity is made for any action against the 
United States or the Pueblo that seeks money damages.
    (b) Subject Matter Jurisdiction Not Affected.--Nothing in this Act 
shall be deemed as conferring, restricting, enlarging, or determining 
the subject matter jurisdiction of any court, including the 
jurisdiction of the court that enters the Partial Final Decree 
adjudicating the Pueblo's water rights.
    (c) Regulatory Authority Not Affected.--Nothing in this Act shall 
be deemed to determine or limit any authority of the State or the 
Pueblo to regulate or administer waters or water rights now or in the 
future.

SEC. 13. DISCLAIMER.

    Nothing in the Settlement Agreement or this Act shall be construed 
in any way to quantify or otherwise adversely affect the land and water 
rights, claims, or entitlements to water of any other Indian tribe.
                                                       Calendar No. 257

111th CONGRESS

  2d Session

                                 S. 965

                          [Report No. 111-117]

_______________________________________________________________________

                                 A BILL

 To approve the Taos Pueblo Indian Water Rights Settlement Agreement, 
                        and for other purposes.

_______________________________________________________________________

                            January 20, 2010

                        Reported with amendments