[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
H.R. 3254, TAOS PUEBLO INDIAN WATER RIGHTS SETTLEMENT ACT OF 2009; AND 
         H.R. 3342, AAMODT LITIGATION SETTLEMENT ACT OF 2009. 

=======================================================================

                           LEGISLATIVE HEARING

                               before the

                    SUBCOMMITTEE ON WATER AND POWER

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                      Wednesday, September 9, 2009

                               __________

                           Serial No. 111-34

                               __________

       Printed for the use of the Committee on Natural Resources



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                     COMMITTEE ON NATURAL RESOURCES

              NICK J. RAHALL, II, West Virginia, Chairman
          DOC HASTINGS, Washington, Ranking Republican Member

Dale E. Kildee, Michigan             Don Young, Alaska
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Jeff Flake, Arizona
Frank Pallone, Jr., New Jersey       Henry E. Brown, Jr., South 
Grace F. Napolitano, California          Carolina
Rush D. Holt, New Jersey             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Louie Gohmert, Texas
Madeleine Z. Bordallo, Guam          Rob Bishop, Utah
Jim Costa, California                Bill Shuster, Pennsylvania
Dan Boren, Oklahoma                  Doug Lamborn, Colorado
Gregorio Sablan, Northern Marianas   Adrian Smith, Nebraska
Martin T. Heinrich, New Mexico       Robert J. Wittman, Virginia
George Miller, California            Paul C. Broun, Georgia
Edward J. Markey, Massachusetts      John Fleming, Louisiana
Peter A. DeFazio, Oregon             Mike Coffman, Colorado
Maurice D. Hinchey, New York         Jason Chaffetz, Utah
Donna M. Christensen, Virgin         Cynthia M. Lummis, Wyoming
    Islands                          Tom McClintock, California
Diana DeGette, Colorado              Bill Cassidy, Louisiana
Ron Kind, Wisconsin
Lois Capps, California
Jay Inslee, Washington
Joe Baca, California
Stephanie Herseth Sandlin, South 
    Dakota
John P. Sarbanes, Maryland
Carol Shea-Porter, New Hampshire
Niki Tsongas, Massachusetts
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico

                     James H. Zoia, Chief of Staff
                       Rick Healy, Chief Counsel
                 Todd Young, Republican Chief of Staff
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                


                    SUBCOMMITTEE ON WATER AND POWER

              GRACE F. NAPOLITANO, California, Chairwoman
         TOM McCLINTOCK, California, Ranking Republican Member

George Miller, California            Cathy McMorris Rodgers, 
Raul M. Grijalva, Arizona                Washington,
Jim Costa, California                Adrian Smith, Nebraska
Peter A. DeFazio, Oregon             Mike Coffman, Colorado
Jay Inslee, Washington               Doc Hastings, Washington, ex 
Joe Baca, California                     officio
Nick J. Rahall, II, West Virginia, 
    ex officio
                                 ------                                



















                               CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Wednesday, September 9, 2009.....................     1

Statement of Members:
    Baca, Hon. Joe, a Representative in Congress from the State 
      of California..............................................     9
        Prepared statement of....................................     9
    Heinrich, Hon. Martin, a Representative in Congress from the 
      State of New Mexico........................................     7
        Prepared statement of....................................     8
    McClintock, Hon. Tom, a Representative in Congress from the 
      State of California........................................     3
        Prepared statement of....................................     5
    Napolitano, Hon. Grace F., a Representative in Congress from 
      the State of California....................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Connor, Hon. Michael L., Commissioner, Bureau of Reclamation, 
      U.S. Department of the Interior, Washington, D.C...........    10
        Prepared statement on H.R. 3254..........................    14
        Prepared statement on H.R. 3342..........................    18
    Cordova, Hon. Nelson J., Councilman and Water Rights 
      Coordinator, Pueblo of Taos, Taos, New Mexico..............    22
        Prepared statement on H.R. 3254..........................    24
    Dorame, Hon. Charles J., Chairman, Northern Pueblos Tributary 
      Water Rights Association, Albuquerque, New Mexico..........    32
        Prepared statement on H.R. 3342..........................    33
    Lujan, Hon. Ben Ray, a Representative in Congress from the 
      State of New Mexico........................................     5
        Prepared statement of....................................     7
    Martinez, Palemon A., President, Taos Valley Acequia 
      Association (TVAA), Taos, New Mexico.......................    45
        Prepared statement on H.R. 3254..........................    47
    Montoya, Hon. Harry B., Commissioner of District 1, Santa Fe 
      County Commission, Santa Fe, New Mexico....................    48
        Prepared statement on H.R. 3342..........................    49
        Supplemental statement submitted for the record..........    70
    Sanders, DL, Chief Counsel, Office of the State Engineer, 
      Santa Fe, New Mexico, on behalf of John R. D'Antonio, Jr., 
      P.E., New Mexico State Engineer, Interstate Stream 
      Commission Secretary.......................................    37

Additional materials supplied:
    D'Antonio, John R., Jr., P.E., New Mexico State Engineer, 
      Interstate Stream Commission Secretary, Prepared statement 
      on H.R. 3254...............................................    38
        Prepared statement on H.R. 3342..........................    42
    Pojoaque Basin Water Alliance, Statement submitted for the 
      record.....................................................    75
    Richardson, Hon. Bill, Governor, State of New Mexico, Letter 
      submitted for the record...................................    77
    Rivera, Governor George, Pueblo of Pojoaque, Statement 
      submitted for the record on H.R. 3342......................    71
    List of documents retained in the Committee's official files.    78


  LEGISLATIVE HEARING ON H.R. 3254, TO APPROVE THE TAOS PUEBLO INDIAN 
   WATER RIGHTS SETTLEMENT AGREEMENT, AND FOR OTHER PURPOSES. ``TAOS 
PUEBLO INDIAN WATER RIGHTS SETTLEMENT ACT OF 2009''; AND H.R. 3342, TO 
      AUTHORIZE THE SECRETARY OF THE INTERIOR, ACTING THROUGH THE 
COMMISSIONER OF RECLAMATION, TO DEVELOP WATER INFRASTRUCTURE IN THE RIO 
GRANDE BASIN, AND TO APPROVE THE SETTLEMENT OF THE WATER RIGHTS CLAIMS 
OF THE PUEBLOS OF NAMBE, POJOAQUE, SAN ILDEFONSO, AND TESUQUE. ``AAMODT 
                  LITIGATION SETTLEMENT ACT OF 2009.''

                              ----------                              


                      Wednesday, September 9, 2009

                     U.S. House of Representatives

                    Subcommittee on Water and Power

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to call, at 2:03 p.m. in 
Room 1324, Longworth House Office Building, Hon. Grace 
Napolitano [Chairwoman of the Subcommittee] presiding.
    Present: Representatives Napolitano, McClintock, Inslee, 
Baca.
    Also Present: Representatives Heinrich and Lujan.

    STATEMENT OF HON. GRACE NAPOLITANO, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mrs. Napolitano. Good afternoon. The meeting of the 
Subcommittee on Water and Power will come to order.
    The purpose of today's meeting is to hold a legislative 
hearing on H.R. 3254 and H.R. 3342. I ask unanimous consent 
that Congressman Ben Ray Lujan and Congressman Heinrich be 
allowed to sit on the dais and participate in the Subcommittee 
proceedings today. Without objection, so ordered.
    After my opening statement, I will recognize all of the 
members of the Subcommittee for any statement they may have. We 
will need to move expeditiously, because they are expecting 
votes between 2:15 and 2:30 p.m.
    Any Member who desires to be heard will be heard. 
Additional material may be submitted for the record by the 
Members, by any witness, or by any interested party. The record 
will be kept open for 10 business days following today's 
hearing.
    The five-minute rule with our timer, which is in front of 
you and in front of me, will be enforced. Green means go, 
yellow indicates one minute remaining, and red means stop or I 
will stop you.
    Today's legislative agenda focuses on two water rights 
settlements, which affect five New Mexican Pueblos. The 
settlement reflects the large amount of work, time, patience, 
and money of the Pueblos and the state and Federal governments.
    And let us be clear from the start. We are committed to 
completing these settlements. It is unacceptable that there 
have been 83 years' worth of outstanding litigation between 
Aamodt, which addresses the Pueblos of Nambe, Pojoaque, 
Tesuque, and San Ildefonso, and the Abeyta case, which 
addresses the water needs of Taos Pueblo.
    We have the chance today, with H.R. 3254 and H.R. 3342, to 
settle 83 years of litigation.
    To quote one of our witnesses today, Mr. Cordova--thank 
you, sir--in regard to the Taos settlement, but I think it also 
applies to Aamodt, these settlements will build a relationship 
for all parties in the future; one that is based on mutual 
trust, respect, and cooperation. Something that has been 
missing historically.
    Welcome, Mr. Cordova and Chairman Dorame. We appreciate 
your continued perseverance. Welcome again, and thank you for 
being with us today.
    We are also pleased to welcome D. L. Sanders from the New 
Mexico State Engineers Office, TVAA President Martinez, and 
Santa Fe County Commissioner Montoya to our hearing today, to 
provide us the state and local perspective.
    While it is often perceived that water rights settlements 
benefit primarily the tribes, it is also important to recognize 
the importance water settlements have in providing water 
certainty to the entire region. Water in New Mexico, as in most 
places in the West, is a limited commodity.
    The wise and careful management of water requires us to 
work together to develop workable solutions, and to solidify it 
in legislation.
    We are here today to take a significant and important step 
in giving Pueblos and the people of New Mexico certainty on the 
management of this precious resource.
    I personally trust there will be additional focus on water 
reuse and water recycling for any water discharges. That is one 
of the things that we in this Subcommittee have taken a great 
interest in, and we hope that you will consider those in the 
future as you move forward with your projects.
    To round out our all-New Mexican panel, we welcome back 
Commissioner Connor. We are looking forward to reading your 
testimony sooner. I just got it, so it was kind of late last 
night. But I am pleased that the delay allowed for a welcome 
change.
    I also expect that the Administration recognizes the hard 
work the five Pueblos have done to address concerns regarding 
the waiver language, application of the criteria and 
procedures, and the total cost. In fact, since our hearing last 
September, Taos waiver language in H.R. 3254 has become the 
model waiver language for the Department. This is no doubt a 
testament to their hard work, and an eagerness to bring 
finality to these important settlements.
    We thank the panel for being present to testify, and look 
forward to your testimony.
    And I turn it over to my Ranking Member, Mr. Tom 
McClintock.
    [The prepared statement of Mrs. Napolitano follows:]

      Statement of The Honorable Grace F. Napolitano, Chairwoman, 
                    Subcommittee on Water and Power

    Today's legislative agenda focuses on two water rights settlements 
which affect five New Mexico Pueblos. These settlements reflect a large 
amount of work, time and patience by the people of the pueblos and the 
state and federal governments. Let us be clear from the start, we are 
committed to complete these settlements. It is unacceptable that there 
has been 83 years worth of outstanding litigation between the Aamodt 
Case, which addresses the Pueblos of Nambe, Pojoaque, Tesuque San 
Ildefonso; and the Abeyta Case, which addresses the water needs of the 
Taos Pueblo. We have the chance today with H.R. 3254 and H.R. 3342 to 
settle 83 years of litigation.
    To quote Mr. Cordova, in regard to the Taos settlement, but I think 
it also applies to Aamodt, these settlements will ``build a 
relationship for all parties the future...one that is based on mutual 
trust, respect and cooperation, something that has been missing 
historically.'' Welcome Mr. Cordova and Chairman Dorame. We appreciate 
the many miles that you have come today to represent your people. Thank 
you for being here today.
    We are also pleased to welcome DL Sanders from the New Mexico State 
Engineer's office, TVAA President Martinez and Santa Fe County 
Commissioner Montoya to our hearing today to provide us the state and 
local perspective. While it's often perceived that Water Rights 
Settlements benefit primarily the tribes, it is also important to 
recognize the importance water settlements have in providing water 
certainty to the entire region. Water in New Mexico, as in most places 
in the West, is a limited commodity. The wise and careful management of 
water requires us to work together, to develop workable solutions and 
then to solidify it in legislation. We are here today to take a 
significant and important step in giving the Pueblos and the people of 
New Mexico certainty on the management of this precious resource.
    To round out our all New Mexican Panel, we welcome back 
Commissioner Connor. We were looking forward to reading your testimony 
sooner, but I am pleased that the delay allowed for a welcome change. I 
also expect that the Administration recognizes the hard work the five 
pueblos have done to address concerns regarding the waiver language, 
application of the criteria and procedures, and the total cost. In 
fact, since our hearing last September, Taos waiver language in H.R. 
3254 has become the boiler plate language for the Department. This is 
no doubt a testament to their hard work and eagerness to bring finality 
to these important settlements.
    Thank you all for traveling al the way to Washington, DC to be here 
with us today. I look forward to your testimonies.
                                 ______
                                 

STATEMENT OF HON. TOM McCLINTOCK, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. McClintock. Thank you, Madame Chairwoman. Today we are 
going to hear about two bills that authorize the Secretary of 
the Interior to implement comprehensive settlement agreements 
affecting water rights claims for five Pueblos of New Mexico.
    I am looking forward to the testimony on these bills. I 
hope that both sides can allay concerns that I have regarding 
several of the provisions.
    On the positive side, the bills end the longest-standing 
litigation in the Federal Court system, and establish something 
that the people of this region, both on and off reservation, 
have lacked, and that is a certainty about future water rights 
and apportionments.
    Also on the positive side, I agree with Mr. Martinez of the 
Taos Valley Acequia Association that quote: ``The United States 
owes a Federal trust obligation to these Pueblos to protect the 
water rights of the Acequias and their members.''
    And finally, I agree with the Santa Fe County Commissioner 
that a comprehensive solution is advisable since quote: ``There 
will be demand in the future from non-Pueblo residents to 
connect to the system, and that quote: ``It would be a very 
unfortunate outcome if those people were told no, you cannot 
connect, this is a Pueblo-only system.''
    However, I also have some serious concerns about several 
details in the bills which I hope can be addressed.
    My first two concerns are specific to H.R. 3342. First, I 
am very concerned about the prospect of giving eminent domain 
authority to a joint powers agency that includes sovereign 
entities that are not accountable to local voters--
specifically, the Pueblo governments.
    I have no problem with the Pueblos exercising eminent 
domain on their own land, and county agencies exercising 
eminent domain on non-reservation land. But I very seriously 
question allowing one agency to exercise this power outside of 
its jurisdiction when that agency is not directly accountable 
to voters.
    In this respect, I agree with the Pojoaque Basin Water 
Alliance, that, quote, ``The citizens of our county have no 
control or oversight over tribal representatives, development, 
and countless other issues. A large joint water system and 
district would have administrative and operational issues 
evolving into jurisdictional issues.''
    Second, I am concerned that this resolution has not worked 
out legitimate concerns by affected water users; that the 
settlement imperils their existing water rights. In this 
respect, I wonder if the settlement doesn't constitute an 
unconstitutional taking.
    With respect to both bills, I would raise a third concern. 
It seems to me that resolving water rights is quite a separate 
matter from asking taxpayers to pay for a specific project from 
which those taxpayers derive no benefit.
    I am strongly in favor of additional water development. I 
believe that the projects contemplated by this legislation will 
be a boon to the entire region.
    However, I have always believed that local water projects 
should be financed by local revenue bonds that are redeemed by 
local users of the water in proportion to their use, and not 
subsidized by general taxpayers.
    For example, a project that exclusively benefits water 
users in the Pojoaque Basin should not be exclusively financed 
by water users in Poughkeepsie or in Palomar. So I would ask 
for you to address these issues that are of principal concern 
to me as I did a first reading on these bills.
    I yield back.
    [The prepared statement of Mr. McClintock follows:]

Statement of The Honorable Tom McClintock, a Representative in Congress 
                      from the State of California

    Thank you Madam Chairwoman.
    Today we will hear two bills that authorize the Secretary of the 
Interior to implement comprehensive settlement agreements affecting 
water rights claims for five Pueblos of New Mexico.
    I am looking forward to testimony on these bills and hope that both 
sides can allay concerns that I have regarding several provisions.
    On the positive side, the bills end the longest standing litigation 
in the federal court system and establish something that the people of 
this region--both on and off reservation--have lacked, and that is a 
certainty about future water rights and apportionments.
    Also on the positive side, I agree with Mr. Martinez of the Taos 
Valley Acequia Association that ``The United States owes not only a 
federal trust obligation'' to these pueblos ``to protect the water 
rights of the Acequias and their members.''
    And finally, I agree with the Santa Fe County Commissioner that a 
comprehensive solution is advisable since ``there will be demand in the 
future from non-Pueblo residents to connect to the system.'' And that 
``It would be a very unfortunate outcome if those people were told 
``no, you cannot connect--this is a Pueblo-only system.''
    However, I also have serious concerns about many details in the 
bills which I hope can be addressed.
    My first two concerns are specific to H.R. 3342:
    First, I am very concerned about the prospect of giving eminent 
domain authority to a joint-powers agency that includes sovereign 
entities that are not accountable to local voters--specifically the 
Pueblo governments. I have no problem with the pueblos exercising 
eminent domain on their own land and county agencies exercising eminent 
domain on non-reservation land, but I very seriously question allowing 
one agency to exercise this power outside of its jurisdiction when that 
agency is not directly accountable to the voters. In this respect, I 
agree with the Pojoaque Basin Water Alliance that ``The Citizens of our 
county have no control or oversight over tribal representatives, 
development, and countless other issues. A large joint water system and 
district would have administration and operational issues evolving into 
jurisdictional issues.''
    Second, I am concerned that this resolution has not worked out 
legitimate concerns by affected water users that the settlement 
imperils their existing water rights. In this respect, I wonder if the 
settlement doesn't constitute an unconstitutional taking.
    With respect to both bills, I would raise a third concern, that 
resolving water rights is quite a separate matter from asking taxpayers 
to pay for a project from which those taxpayers derive no benefit. I am 
strongly in favor of additional water development and believe that the 
project contemplated by this legislation will be a boon to the entire 
region. However, I have always believed that local water projects 
should be financed by local revenue bonds redeemed by the users of the 
water in proportion to their use and not subsidized by general 
taxpayers. For example a project that exclusively benefits water users 
in the Pojoaque Basin should be exclusively financed by those water 
users and not by taxpayers in Poughkeepsie or Palomar.
                                 ______
                                 
    Mrs. Napolitano. Thank you, Mr. McClintock. And while I 
agree with you, sometimes we need to take into consideration 
that some of these tribes have been waiting for the Federal 
government to act upon some of their claims, so that has to be 
taken into consideration.
    In order as arrived, Mr. Lujan, for a short speech.

 STATEMENT OF HON. BEN RAY LUJAN, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF NEW MEXICO

    Mr. Lujan. Thank you very much, Madame Chair, and to all 
the members of the Water and Power Subcommittee, and the staff 
of the Subcommittee, especially Camille, for working to set up 
this hearing, and for the invitation to sit in.
    This is an important step in protecting the valuable water 
resources of northern New Mexico. Our water resources are 
precious in New Mexico. Without a reliable water supply, we 
cannot improve human health, protect our cultures and 
traditions, or grow economies. These settlements will protect 
water resources, advance the implementation of effective water 
management, and ensure future access to water resources for all 
residents located in the areas of northern New Mexico 
encompassed by these settlements.
    I want to thank all the people from Taos and the greater 
Pojoaque Valley for traveling the long distance from New Mexico 
to Washington, D.C., for this very important hearing.
    I would like to acknowledge Governor Mitchell from Tesuque 
Pueblo, Governor Roybal from San Ildefonso, Governor Rivera 
from Pojoaque, and Governor Romero from Taos, and our ward 
chief in Taos, for making this long trip. This is something you 
have all worked on for a very long time, and I am glad to have 
you here today to talk about the importance of these water 
settlements.
    Earlier this year I introduced two pieces of legislation to 
approve two water settlements in my district. H.R. 3254, the 
Taos Pueblo Indian Water Rights Settlement Act of 2009, to 
approve the Taos Pueblo Indian water rights settlement 
agreement and for other purposes, and H.R. 3342, the Aamodt 
Litigation Settlement Act of 2009, to authorize the Secretary 
of the Interior, acting for the Commissioner of Reclamation, to 
develop water infrastructure in the Rio Grande Basin, and to 
approve the settlement of the water rights claims of the 
Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque.
    I would like to ask the Chairwoman if I may submit 
directive letters I received from the State of New Mexico, the 
County of Santa Fe, the Rio Pojoaque Acequia and Well Water 
Association, and others who have asked the Congress to take a 
serious look at the importance of approving these settlements, 
as these two pieces of legislation are vital to the prolonged 
existence of culture and agriculture in my district.
    Mrs. Napolitano. Without objection, so ordered.
    [NOTE: The letters submitted for the record can be found at 
the end of this hearing.]
    Mr. Lujan. Similar legislation was introduced in the 110th 
Congress, and was subject to legislative hearings in both the 
House and the Senate.
    Early in the 111th Congress, both Senators Bingaman and 
Udall from New Mexico introduced Senate Bill 965, the Taos 
Pueblo Indian Rights Settlement Act, and Senate Bill 1105, the 
Aamodt Litigation Settlement Act, in the Senate with important 
revisions having improved both settlements. Their leadership 
surely has gotten us where we are today with these two 
settlements.
    I recognize the importance of these water settlements from 
a resource management and future use perspective, and I follow 
the leads of the Senators from New Mexico and introduce H.R. 
3254 and H.R. 3342 in the House.
    With that, Madame Chair, I yield back my time.
    [The prepared statement of Mr. Lujan follows:]

 Statement of The Honorable Ben R. Lujan, a Representative in Congress 
        from the State of New Mexico, on H.R. 3254 and H.R. 3342

    First I'd like to thank Chairwoman Napolitano, all of the members 
of the Water and Power Subcommittee and the staff of the subcommittee 
for working to set up this hearing. This is an important step in 
protecting the valuable water resources of northern New Mexico.
    Our water resources are precious in New Mexico. Without a reliable 
water supply, we cannot improve human health, protect our cultures and 
traditions, or grow economies. These settlements will protect water 
resources, advance the implementation of effective water management, 
and ensure future access to water resources for all residents located 
in the areas of Northern New Mexico encompassed by these settlements.
    I want to thank all of the people from Taos and the Greater 
Pojaoque Valley for traveling the long distance from New Mexico to 
Washington D.C. for this very important hearing.
      Gov. Romero, Taos Pueblo
      Gov. Mitchell, Tesuque Pueblo
      Gov. Roybal, San Ildefonso
      Gov. Rivera, Pojoaque Pueblo
    This is something you all have worked on for a very long time and I 
am glad to have you here today to talk about the importance of these 
water settlements. Earlier this year I introduced two pieces of 
legislation to approve two water settlements in my district.
      H.R. 3254, The ``Taos Pueblo Indian Water Rights 
Settlement Act of 2009;'', To approve the Taos Pueblo Indian Water 
Rights Settlement Agreement, and for other purposes, and;
      H.R. 3342, The ``Aamodt Litigation Settlement Act of 
2009.'' To authorize the Secretary of the Interior, acting through the 
Commissioner of Reclamation, to develop water infrastructure in the Rio 
Grande Basin, and to approve the settlement of the water rights claims 
of the Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque.
    I would like to ask the chairwoman if I may submit to the record 
the numerous letters of support I received from The state of New 
Mexico, The County of Santa Fe, The Rio Pojoaque Acequia & Well Water 
Association and others who have asked that Congress take a serious look 
at the importance of approving these settlements as these two pieces of 
legislation are vital to the prolonged existence of culture and 
agriculture in my district.
    Similar legislation was introduced in the 110th Congress and was 
subject to legislative hearings in both the house and the Senate. Early 
in the 111th Congress both Senators Bingaman and Udall introduced S.965 
the Taos Pueblo Indian Water Rights Settlement Act and S.1105 the 
Aamodt Litigation Settlement Act in the Senate with important revisions 
that have improved both settlements. Their leadership surely has gotten 
us where we are today with these two settlements. I recognize the 
importance of these water settlements from a resource management and 
future use perspective, and I followed the lead of the Senators from 
New Mexico and introduced H.R. 3254 and H.R. 3342 in the House.
                                 ______
                                 
    Mrs. Napolitano. Thank you. Mr. Heinrich.

STATEMENT OF HON. MARTIN HEINRICH, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF NEW MEXICO

    Mr. Heinrich. Thank you, Chairwoman Napolitano, for 
inviting me to sit in with the Subcommittee today. This is 
clearly an issue that is critical to our state's future. And as 
anyone from the West knows, water is the lifeblood of our 
communities. Whether you live in downtown Albuquerque or on a 
ranch or in a pueblo, every New Mexican depends on their 
community's right to clean, reliable water.
    The bills before the Subcommittee today are the result of 
years of hard work; respectively, 40 and 43 years. These legal 
actions were filed approximately three and six years before 
Congressman Lujan and I were born.
    To ensure that communities have reliable rights to water 
for future generations, I want to commend the local, state, and 
Pueblo governments for all their dedication to finding a 
solution that meets each community's needs.
    As this Subcommittee is all too well aware, cooperation and 
collaboration are far too rare when it comes to managing water 
resources in the West. These bills are an example of how we can 
manage this precious resource without pitting towns against 
farms, and farms against tribes.
    The Taos Pueblo Indian Water Rights Settlement Act would 
settle a lawsuit 40 years old, and adjudicate water rights for 
Taos Pueblo, the State of New Mexico, and many non-Indian water 
users and Acequia associations.
    The Aamodt litigation settlement would settle an even older 
water rights lawsuit; in fact, the oldest active case in the 
Federal Court system. This settlement will secure the rights of 
the four northern Pueblos of Pojoaque, Nambe, San Ildefonso, 
and Tesuque, and would create the regional water system to 
deliver water to the Pueblos and to the Santa Fe County water 
utility.
    These agreements represent many years of negotiations that 
began when the parties to these lawsuits realized that 
litigation was too costly and too time-consuming to produce a 
satisfactory result. By talking neighbor to neighbor, these 
communities have found the solution that will work for them.
    I hope that Congress will support these agreements and pass 
H.R. 3254 and H.R. 3342.
    I yield back.
    [The prepared statement of Mr. Heinrich follows:]

    Statement of The Honorable Martin Heinrich, a Representative in 
   Congress from the State of New Mexico, on H.R. 3254 and H.R. 3342

    Thank you, Chairwoman Napolitano, for inviting me to sit in with 
the subcommittee today to discuss this issue critical to my state's 
future.
    As anyone from a Western state knows, water is the lifeblood of our 
communities. Whether you live in downtown Albuquerque, on a ranch, or 
at a pueblo, every New Mexican depends on their community's right to 
clean, reliable water.
    The bills before the subcommittee today are the result of years of 
hard work by the communities of Northern New Mexico to ensure they have 
reliable rights to water for future generations. I commend the local, 
state, and pueblo governments for their dedication to finding a 
solution that meets each community's needs.
    As this subcommittee is all too well aware, cooperation and 
collaboration are far too rare when it comes to managing water 
resources in the West. These bills are an example of how we can manage 
this precious resource without pitting towns against farms, and farms 
against tribes.
    The Taos Pueblo Indian Water Rights Settlement Act would settle a 
lawsuit nearly 40 years old and adjudicate water rights for Taos 
Pueblo, the State of New Mexico, and many non-Indian water users and 
acequia associations.
    The Aamodt Litigation Settlement Act would settle an even older 
water rights lawsuit--in fact, this is the oldest active case in the 
federal court system. This settlement will secure the rights of the 
Four Northern Pueblos--Pojoaque, Nambe, San Ildefonso, and Tesuque--and 
would create a Regional Water System to deliver water to the pueblos 
and to the Santa Fe County Water Utility.
    These agreements represent many years of negotiations that began 
when the parties to these lawsuits realized that litigation was too 
costly and too time consuming to produce a satisfactory result.
    By talking neighbor to neighbor, these communities have found a 
solution that will work for them.
    I hope Congress will support these agreements and pass H.R. 3254 
and H.R. 3342.
    Thank you.
                                 ______
                                 
    Mrs. Napolitano. Thank you. Mr. Inslee, do you have any 
statement, sir?
    Mr. Inslee. No, thank you.
    Mrs. Napolitano. Thank you. Mr. Baca.

 STATEMENT OF HON. JOE BACA, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF CALIFORNIA

    Mr. Baca. Yes, Madame Chair. First of all, thank you, 
Madame Chair, for hosting this meeting, along with Ranking 
Member Tom McClintock. It is an important hearing.
    I especially want to thank my friend, Rep. Ben Lujan, who 
represents that area in bringing this piece of legislation. And 
I commend his dad, because his dad has also been a strong 
leader as the Speaker of the House, and the Assembly that 
believes that water is important for a lot of us in the state. 
And the son has taken on the same gavel and the same torch. 
Thank you for taking that torch.
    I believe that every individual should have access to 
water, and that we should all recognize that water is the 
fundamental necessity for all communities, it doesn't matter 
whether in the reservation or off the reservation. But we all 
should have access to it.
    I agree that we should come to some kind of an agreement 
and support H.R. 3254. I commend them all coming together and 
working together on this long journey for everyone.
    Today, this bill will address the longstanding water claims 
in New Mexico, and will finally bring together government 
entities and interested entities.
    As a native of New Mexico, I am the third individual--you 
heard from two other individuals--who actually represents the 
area. I was born in Belen, New Mexico. So you have a third 
guardian angel that also speaks on behalf of New Mexico, and a 
voice in that area. And we finally have a native New Mexican 
other than myself. I used to claim I was the only one in 
Congress representing the State of New Mexico. Ben Lujan is 
also native from that area.
    But again, I look forward to hearing the testimony, and 
look to support H.R. 3254 and H.R. 3342, that are important to 
a lot of us in settling this litigation.
    Thank you, Madame Chair.
    [The prepared statement of Mr. Baca follows:]

   Statement of The Honorable Joe Baca, a Representative in Congress 
                      from the State of California

    Thank you, Chairwoman Grace Napolitano and Ranking Member Tom 
McClintock for holding this important hearing, and thank you Rep. Lujan 
for working on these important pieces of water legislation.
    I firmly believe that every individual should have access to water; 
and that we should all recognize that water is a fundamental necessity 
for all communities.
    I am sensitive to other communities' water needs because my 
District in the Inland Empire, California is going through its own set 
of problems with our water--drought and contamination.
    The bills presented today will address long standing water claims 
in New Mexico, and will finally bring together governing entities and 
interest.
    As a native New Mexican from Belen, I am very proud to be here 
today and try to enhance access to water for these New Mexican 
communities
    I look forward to hearing the testimony of our witnesses.
    Thank you.
                                 ______
                                 
    Mrs. Napolitano. Thank you, Mr. Baca. We are trying to 
hurry because we are going to have some votes, and then after 
that we have that procedure in the Rotunda. And we certainly 
have witnesses.
    So we thank you for your statements, and we will hear from 
the witnesses. We have only one panel, and you will be 
introduced before you testify. After your testimony we will 
have questions.
    Your prepared statements will be entered into the record, 
and all witnesses are asked to kindly, please summarize the 
high points of the testimony, and limit your remarks to the 
five minutes allocated. Again, the timer before you will be 
used.
    That applies to all questioning. Members have five minutes 
for questions. If there are additional, we may have a second 
round, time permitting.
    Our first panel, we have Mr. Mike Connor--welcome again, 
Commissioner--Bureau of Reclamation, Washington, D.C. You are 
on, sir.

STATEMENT OF MIKE CONNOR, COMMISSIONER, BUREAU OF RECLAMATION, 
       U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C.

    Mr. Connor. Thank you, Madame Chairwoman, Ranking Member 
McClintock, and members of the Subcommittee. I am Mike Connor, 
Commissioner of the Bureau of Reclamation. I am pleased to be 
here to discuss the two Indian water rights settlements bills 
before the Subcommittee today.
    I am also honored to be here with my fellow New Mexicans on 
this panel.
    I have submitted written remarks for the record, and I will 
summarize that within the five-minute time period.
    I would like to recognize that for over 25 years, the 
Federal government, together with Indian tribes, states, and 
local parties, have acknowledged that negotiated Indian water 
rights settlements are preferable to the protracted litigation.
    The Aamodt and Taos settlements continue this approach and 
reflect a desire by the people of the State of New Mexico, both 
Indian and non-Indian alike, to control their own future by 
settling their differences through negotiation, rather than 
litigation.
    My testimony today is mindful of this history, and the good 
work that has been put into both settlement bills before the 
Subcommittee.
    This Administration's general policy of support for 
negotiations is premised on four principles: that the United 
States participate in water settlements consistent with its 
responsibilities as trustee to Indians.
    Two, that Indian tribes receive equivalent benefits for 
rights which they, as the United States's trustee, relinquished 
as part of a settlement.
    Three, that Indian tribes should realize the value from 
confirmed water rights resulting from a settlement.
    And four, that settlements contain appropriate cost-sharing 
proportionate to the benefits received by all parties 
benefitting from the settlements.
    In both bills before the Subcommittee today, substantial 
work and modifications have been made by the parties and the 
New Mexico Congressional Delegation to improve the settlements. 
As a result, the bills reflect a positive and significant step 
toward addressing the principles just articulated.
    My statement today is intended to recognize these 
improvements, and establish a clear path toward some additional 
changes that will make these settlements ones which the 
Administration can fully support.
    I will now address the specifics of each bill.
    H.R. 3254, the Taos Bill. H.R. 3254 would settle Taos 
Pueblo's water rights claims in the Rio Pueblo de Taos and the 
Rio Hondo systems in northern New Mexico. There is a long 
history of litigation concerning the Pueblo's water rights 
claims that goes back to the late 1800s. Today the case is the 
latest round, initiated in 1969 as the General Stream 
Adjudication.
    Recognizing that litigation and uncertainty over water 
rights would likely continue into the foreseeable future, the 
Pueblo, the United States, State of New Mexico, Taos Valley 
Acequia Association, the Town of Taos, El Prado Water and 
Sanitation District, and 12 mutual domestic water associations 
entered into negotiations in the 1990s.
    As with most negotiations, progress was incremental. 
Ultimately, the parties' efforts resulted in a settlement 
agreement that was signed by the non-Federal parties in May 
2006.
    Both my written and my oral presentation summarizes the 
number of the positive aspects of the settlements. I am going 
to skip over that for the sake of time, and identify those 
remaining concerns that I just identified in general.
    H.R. 3254 authorizes a Federal contribution of----
    Mrs. Napolitano. Excuse me, Mr. Connor. Please go ahead, we 
will allow you the extra time. We need to hear that.
    Mr. Connor. OK. Overall, the Taos settlement is a 
reasonable and positive resolution of historic water disputes, 
and is a settlement that contains many provisions that the 
Administration supports.
    The waivers contained in H.R. 3254, as you noted, Madame 
Chairman, are significant improvements over the prior version 
of this bill. In fact, these negotiated waivers have become a 
model for other settlements.
    In addition, the settlement will provide for the protection 
and restoration of the Pueblo's Buffalo Pasture, a culturally 
sensitive and sacred wetland currently impacted by groundwater 
development.
    Finally, perhaps the most significant attribute of the 
negotiated settlement is that it solidifies and makes permanent 
many water-sharing arrangements that the Pueblo and its non-
Indian neighbors have struggled for years to establish.
    Notwithstanding the positive provisions of H.R. 3254, the 
Administration has some concerns about two items in particular 
that are related to the Federal contribution to the settlement.
    The bill authorizes a Federal contribution of $121 million 
to be paid over seven years. An additional $33 million is 
authorized to fund 75 percent of the construction costs of 
various projects that have been identified as mutually 
beneficial to the Pueblo and local non-Indian parties.
    The Administration believes that the cost share as it 
presently stands is not proportional to the settlement benefits 
received by the state and local non-Indian parties. We believe 
that increasing the cost share for the mutual benefit projects 
is appropriate and consistent with the funding parameters of 
other Federal water resource programs, particularly in light of 
the benefit that exists by ending the litigation and securing a 
waiver of future water rights claims.
    The second concern goes to the amount of the funding that 
would be provided to the Pueblos before the settlement is 
final. H.R. 3254 allows $25 million of early funding. In 
previous settlements, such funding was far more limited, less 
than $4 million.
    Although the Department understands the need for immediate 
access to funds, especially to halt deterioration of the 
condition of the Buffalo Pasture, we remain concerned about the 
precedent this would set for other Indian water rights 
settlements.
    We recommend the bill be amended to reduce the amount of 
early money that is authorized. We also recommend strengthening 
the provision which allows the United States to recoup and 
receive credit for any early funds made available, should the 
settlement fail to be implemented.
    Finally, with respect to non-financial issues, the 
Administration is concerned about the manner in which the bill 
addresses enforcement matters. Currently there is a provision 
to waive the sovereign immunity of the United States to enforce 
the settlement. This provision is both unnecessary, and should 
be eliminated.
    On a related note, the bill leaves unresolved the question 
of what court retains jurisdiction over an action brought to 
enforce the settlement agreement. This ambiguity may result in 
needless litigation, and the Administration believes that the 
decree court must have continuing and exclusive jurisdiction to 
interpret and enforce its own decree.
    I should end by noting that my written testimony also 
raises concerns about the timeframe for entering the San Juan-
Chama project contracts and the Secretary's role in approving 
San Juan's subcontract entered into by the Pueblo. It appears 
that the parties have now agreed to language that would resolve 
both of these issues. That language should be finalized and 
incorporated into the bill.
    The other bill before the Subcommittee today, H.R. 3342, 
the Aamodt Litigation Settlement Act, would authorize the 
settlement of the water rights of four other New Mexico 
Pueblos: Tesuque, Nambe, Pojoaque, and San Ildefonso, all in 
the Rio Pojoaque Basin, which is immediately north of Santa Fe. 
This settlement would end a contentious water dispute, as well 
as a Federal Court proceeding that has been noted here is over 
40 years old.
    In 1998 the Judge in New Mexico v. Aamodt directed the 
parties to negotiate, which intensified an effort that was 
initially begun in 1992. Concluding the settlement has been 
difficult, in no small part because the basin is chronically 
water-short. In order to allow junior state-based water right 
holders to continue to use water while facilitating the Pueblos 
the right to use and develop their senior water rights, the 
parties agreed to a settlement centered on a regional water 
system that will use an established quantity of imported water 
to serve the needs of the Pueblos and other water users in the 
basin.
    In May 2006, the Pueblos, the State of New Mexico, and 
other non-Federal parties executed a settlement agreement which 
requires the construction of the regional water system, defines 
the extent and priority of agricultural water rights, and 
establishes parameters for the use of groundwater in the basin.
    H.R. 3342 would approve and implement the settlement 
agreement by authorizing the design and construction of that 
regional water system, as well as other benefits identified in 
my written testimony.
    Overall, the total cost of the settlement is estimated to 
be $290 million, with a Federal contribution of $174 million, 
and a state and local contribution of about $117 million. This 
represents a 40 percent non-Federal cost share, which is a 
significant improvement over many past settlements.
    The Administration considers the willingness of the 
settling parties to provide such a significant cost share to be 
a good indication that they are invested in, and deeply 
supportive of, this settlement. A settlement to which many 
interests are contributing deserves more support than a 
settlement which comes at solely Federal expense.
    Nevertheless, the Administration is concerned about certain 
aspects of the cost of this settlement. As a threshold matter, 
there has been an ongoing concern that the cost share agreement 
among the parties remains unsigned, creating uncertainty about 
the viability of the system overall, and the costs expected to 
be borne by the United States.
    We understand that this is an issue that is likely to be 
resolved soon. If so, this fact should be reflected in the 
legislation.
    Second, the Administration is concerned about the validity 
of the cost estimate that the settlement parties are relying on 
for the regional water system. The parties rely on an 
engineering report dated June 2007, which has not been verified 
by the level of study that Reclamation would recommend in order 
to ensure its reliability.
    To better understand the risks associated with cost that 
could potentially exceed the cost estimate, Reclamation is now 
carrying out a design, engineering, and construction review of 
an engineering, of the engineering report, and we expect to 
finish it by the end of this calendar year.
    The Administration also believes that the parties should 
agree that the non-Federal parties will share proportionately 
in any increases in the cost of the project above and beyond 
the cost estimate.
    In addition to the cost-related matters, other provisions 
need to be resolved as identified in the written testimony. The 
waiver provisions include a provision section 204.[a][9] that 
could be interpreted as waiving important environmental 
protection. The Administration cannot accept waivers which have 
the potential to erode important environmental safeguards put 
in place to protect the health, safety, and well-being of the 
citizens and the environment.
    Fortunately, it is my understanding that the parties are 
working with, having worked with both the Interior and 
Department of Justice staff, have agreed to remove this 
provision.
    In addition, the settlement contains a provision that 
allows the Pueblos to begin the process of nullifying the 
entire settlement if the regional water system is not 
substantially complete by mid-2021. The Administration believes 
the legislation should be clarified in this area to establish a 
clear definition and process related to that definition of 
substantial completeness.
    Once again, it appears the parties have reached an 
agreement to include language to address this issue. This would 
represent a significant progress in this serious issue.
    Notwithstanding that progress, because there is still a 
possibility that the settlement could fail, the Administration, 
similar to the Taos bill, recommends strengthening a provision 
which allows the United States to recoup and receive credits 
for any earlier funds made available for the project.
    In summation, I want to again acknowledge that these 
settlements are products of a great deal of effort by many 
parties; and except for the issues raised, are generally 
consistent with the principles for Federal participation in 
Indian water rights settlements.
    This Administration wants to avoid continued and 
unproductive litigation which, even when finally concluded, 
will leave parties injured by and hostile to its results. We 
believe settlement can be accomplished in a manner that 
protects the rights of the Indian communities, and also ensures 
that the costs of settlements are borne proportionately.
    The Administration is committed to work with Congress and 
all parties concerned in developing settlements that the 
Administration can fully and wholeheartedly support.
    We would also welcome working with Congress to identify and 
implement clear criteria for going forward with future 
settlements.
    Madame Chairwoman, this concludes my statement. I stand 
ready to answer questions at the appropriate time.
    [The prepared statements of Mr. Connor follow:]

 Statement of Michael L. Connor, Commissioner, Bureau of Reclamation, 
             U.S. Department of the Interior, on H.R. 3254

    Madam Chairwoman and members of the Subcommittee, I am Michael L. 
Connor, Commissioner of the Bureau of Reclamation (Reclamation). I am 
pleased to provide the views of the Department of the Interior 
(Department) on H.R. 3254, the Taos Pueblo Indian Water Rights 
Settlement Act. This Administration supports the resolution of Indian 
water rights claims through negotiated settlement. Our general policy 
of support for negotiations is premised on a set of general principles 
including that the United States participate in water settlements 
consistent with its responsibilities as trustee to Indians; that Indian 
tribes receive equivalent benefits for rights which they, and the 
United States as trustee, may release as part of a settlement; that 
Indian tribes should realize value from confirmed water rights 
resulting from a settlement; and that settlements are to contain 
appropriate cost-sharing proportionate to the benefits received by all 
parties benefiting from the settlement. We recognize that substantial 
work and refinements have been made to this settlement by the parties 
and the New Mexico delegation. As a result, the parties have taken 
positive and significant steps toward meeting the Federal goals just 
articulated. The settlement legislation has been greatly improved, 
contributing to long-term harmony and cooperation among the parties. We 
would like to continue to work with the parties and the sponsors to 
address certain concerns, including those discussed in this statement 
(such as appropriate non-Federal cost share), that could make this a 
settlement that the Administration could wholeheartedly support.
Negotiated Indian Water Rights Settlements
    Settlements improve water management by providing certainty not 
just as to the quantification of a tribe's water rights but also as to 
the rights of all water users. That certainty provides opportunities 
for economic development for Indians and non-Indians alike. Whereas 
unquantified Indian water rights are often a source of tension and 
conflict between tribes and their neighbors, the best settlements 
replace this tension with mutual interdependence and trust. In 
addition, Indian water rights settlements are consistent with the 
Federal trust responsibility to Native Americans and with a policy of 
promoting Indian self-determination and economic self-sufficiency. For 
these reasons and more, for over 20 years, federally recognized Indian 
tribes, states, local parties, and the Federal government have 
acknowledged that, when possible, negotiated Indian water rights 
settlements are preferable to protracted litigation over Indian water 
rights claims.
    In analyzing settlements, the Administration must consider the 
immediate and long-term water needs of the Indian tribes, the merits of 
all legal claims, the value of water, federal trust responsibilities, 
economic efficiency measures, and the overall promotion of good public 
policy. An additional critical component of our analysis is cost-
sharing.
Historic Water Conflicts in the Taos Valley
    Before discussing the proposed settlement and the Administration's 
concerns with it, it is important to provide background on the disputes 
that led to the settlement. Taos Pueblo is located in north-central New 
Mexico, approximately 70 miles north of Santa Fe. It is the 
northernmost of 19 New Mexico Pueblos and its village is recognized as 
being one of the longest continuously occupied locations in the United 
States. The Pueblo consists of approximately 95,341 acres of land and 
includes the headwaters of the Rio Pueblo de Taos and the Rio Lucero. 
The Taos Pueblo has irrigated lands for agriculture since prehistoric 
times. Before the Pueblo's lands became part of the United States, they 
fell under the jurisdiction first of Spain, and later of Mexico, both 
of which recognized and protected the rights of the Pueblo to use 
water. When the United States asserted its sovereignty over Pueblo 
lands and what is now the State of New Mexico, it did so under the 
terms of the Treaty of Guadalupe Hidalgo. In the Treaty, the United 
States agreed to protect rights recognized by prior sovereigns 
including Pueblo rights. In 1858, Congress specifically confirmed many 
Pueblo land titles, including that of Taos Pueblo.
    Subsequently, patents were issued to the Pueblos of New Mexico 
which, in effect, quitclaimed any interest the United States had in the 
Pueblos' land. The Pueblos were then considered to own their lands in 
fee simple, unlike most other Indian tribes. Despite this unusual title 
arrangement, the United States attempted to exercise jurisdiction over 
the Pueblos for their benefit, seeking to protect Pueblo lands and 
resources by extending the restrictions on alienation of Indian lands 
in the Indian Trade and Intercourse Acts to Pueblo lands. 
Unfortunately, initial efforts by the United States to protect Pueblo 
lands and waters were to no avail. New Mexico's territorial courts did 
not accept the application of the Trade and Intercourse Act to Pueblo 
lands. In United States v. Joseph, 94 U.S. 614 (1876), the Supreme 
Court expressly held that the Pueblos were not Indian tribes within the 
meaning of the 1834 and 1851 Non-intercourse Acts. This meant that non-
Indians were able to buy Pueblo lands without regard to federal Indian 
law and as a result, there was significant loss of Pueblo lands to non-
Indians.
    After almost forty years of loss of land and water rights, the 
Supreme Court reversed its decision in Joseph and decided that the 
Pueblos were, in fact, covered by laws extending federal guardianship 
and protection. United States v. Sandoval, 231 U.S. 28, 48 (1913). The 
Supreme Court's reversal of opinion threw the status of title to lands 
occupied by 12,000 non-Indians in New Mexico into serious doubt, along 
with the water rights exercised on those lands. Responding to the 
outcry concerning title, Congress sought to remedy the uncertainty by 
passing the Pueblo Lands Act of 1924, 43 Stat. 636, to ``settle the 
complicated questions of title and to secure for the Indians all of the 
lands which they are equitably entitled.''
    Under the 1924 Act, if the non-Indians could persuade a special 
lands board that they had used and occupied Pueblo land for a period of 
time, the non-Indians were awarded title, and the Pueblo was supposed 
to be compensated for the value. In practice, this resulted in the non-
Indians successfully claiming some of the most valuable, irrigable 
Pueblo farmland. Taos Pueblo lost 2,401.16 acres to claims by non-
Indians under the 1924 Act. The Pueblo also lost title to 926 acres in 
the Town of Taos. The compensation awarded by the lands board to the 
Pueblos was lower than actual appraised values, and woefully 
inadequate. Congress followed up by enacting the 1933 Pueblo Lands Act, 
which provided additional compensation to the Pueblo and also expressly 
preserved the Pueblo prior water rights, but the compensation still did 
not adequately remedy the losses to the Pueblo.
    In passing the 1924 and 1933 Acts, Congress recognized the 
necessity of resolving the uncertainty of title to land and water and 
also restoring the severely eroded economic footing of the Pueblos 
caused in large part by the loss of land and interference with water 
rights. Cash awards made to the Pueblos under the Acts were expressly 
intended to compensate the Pueblos for their losses and to help fund 
the replacement of their lost economic base through the purchase of 
lands, construction of irrigation projects, and by financing various 
other permanent improvements for the benefit of Pueblo lands. Sadly, 
the Acts did not fully accomplish their purposes. While land titles may 
have been more or less resolved, title to water rights clearly was not 
and uncertainty over title to water has continued to plague the Taos 
Valley.
    In a final attempt to resolve title to water in the Taos Valley, in 
1969 the general stream adjudication of the Rio Pueblo de Taos and Rio 
Hondo stream systems and the interrelated groundwater and tributaries 
was filed. The United States filed a statement of claims in the case on 
behalf of the Taos Pueblo on August 1, 1989, which it revised in 1997. 
The revised claim was for essentially the entire flow and interrelated 
groundwater of the Rio Pueblo de Taos and the Rio Lucero with an 
aboriginal priority date. If the United States is successful in the 
litigation, the impact on non-Indian water users in the Taos Valley 
will be nothing short of devastating. They would be able to use water 
only if the Pueblo forbears exercising its rights.
    As with many general stream adjudications in New Mexico, the Taos 
adjudication has moved very slowly. Motions for partial summary 
judgment were filed in 1991on a number of key issues concerning the 
legal character of the Pueblo's water rights and were fully briefed in 
1995. To date, however, the Court has taken no action on the motions. 
Recognizing that the litigation and attendant uncertainty over water 
rights would continue decade after decade, the Pueblo, the United 
States, the State of New Mexico, the Taos Valley Acequia Association 
(representing 55 community ditch associations), the Town of Taos, the 
El Prado Water and Sanitation District, and 12 mutual domestic water 
consumers associations entered into negotiations.
    Negotiations were not productive until a technical understanding of 
the hydrology of Taos Valley, including preparation of surface and 
groundwater models, was completed in the late 1990s. Negotiations 
intensified in 2003 when a mediator was retained and an aggressive 
settlement meeting schedule was established. The United States 
participated actively in the negotiations, formed a constructive 
working relationship with the parties and was able to resolve most 
issues of concern to the Government. The willingness of the Pueblo, in 
particular, to agree to reasonable and necessary compromises has been 
impressive, and the leadership of the Pueblo negotiation team is to be 
commended for dedication and steadfastness over many years of very 
difficult negotiations. The dedicated efforts of all the parties 
resulted in a Settlement Agreement that was signed in May of 2006 by 
all of the major non-federal parties.
    Under the terms of the negotiated settlement, the Pueblo has a 
recognized right to a total of 11,927.71 acre-feet per year (AFY) of 
depletion, of which 7,249.05 AFY of depletion would be available for 
immediate use. The Pueblo has agreed to forebear from using 4,678.66 
AFY in order to allow non-Indian water uses to continue without 
impairment. The negotiated settlement contemplates that the Pueblo 
would, over time, reacquire the forborne water rights through purchase 
from willing sellers with surface water rights. There is no guarantee 
that the Pueblo will be able to reacquire the forborne water rights, 
however. The quantity of water secured under the settlement is a 
tremendous compromise on the quantity of water claimed by the United 
States and the Pueblo. If the claims asserted in litigation by the 
United States and the Pueblo were successful, the court could award the 
Pueblo rights to approximately 78,000 AFY of diversion and 35,000 AFY 
of depletion of water in the basin. This is very valuable water. The 
cost of water rights in northern New Mexico is extraordinarily high and 
has been estimated to be as much as $10,500 to $12,000 per acre-foot of 
consumptive use per year.
    H.R. 3254 also contains a waiver of potential breach of trust and 
water related claims that the Pueblo may have against the United 
States. The Pueblo has identified a number of potential claims related 
to failure to protect, manage and develop water for which it believes 
the United States would be liable. It should be noted that almost all 
potential claims that the Pueblo could bring against the United States 
would face a number of jurisdictional hurdles, including statute of 
limitations and res judicata defenses. An award of damages against the 
United States is by no means a certainty, but defending against such 
cases can cost a great deal of time and resources in addition to having 
serious public policy repercussions. The waiver provided in H.R. 3254 
will avoid prolonged and bitter litigation over these claims.
Provisions that the Administration Supports
    Overall, the negotiated settlement represents a positive step 
towards the resolution of historic water disputes in an area that has 
limited water resources and is struggling to support the population it 
has attracted. It is a settlement that contains many provisions that 
the Administration can support.
    Concern about the inadequacy of the waivers contained in a 
predecessor bill, Title II of H.R. 6768, was previously a significant 
barrier to United States' support for the settlement. After hearings on 
that bill in the 110th Congress, the Taos settlement parties promptly 
and diligently worked with the Departments of Interior and Justice to 
address waiver concerns. The waivers contained in H.R. 3254 are the 
result of many months of hard work and compromise and are supported by 
the Administration.
    A central and noteworthy feature of the settlement is funding for 
the protection and restoration of the Pueblo's Buffalo Pasture, a 
culturally sensitive and sacred wetland that is being impacted by non-
Indian groundwater production. Under the settlement, the non-Indian 
municipal water suppliers have agreed to limit their use of existing 
wells in the vicinity of the Buffalo Pasture in exchange for new wells 
located further away from the Buffalo Pasture. These agreements will 
allow the Pueblo to continue to utilize this valued wetland in the 
manner considered essential to Pueblo cultural and religious values.
    Perhaps the most significant positive attribute of the negotiated 
settlement is that it solidifies and makes permanent many water sharing 
arrangements that the Pueblo and its non-Indian neighbors have 
struggled for years to establish, including the Pueblo's agreement to 
share its surface water with its non-Indian neighbors, consistent with 
local customs, until its water rights are reacquired from the non-
Indian irrigators on a willing buyer-willing seller basis.
Provisions the Administration Seeks to Negotiate Further
    Despite the positive provisions enumerated above, we believe a 
closer look can and should be given to the costs of the settlement and 
the share and timing of those costs to be borne by the United States.
    H.R. 3254 authorizes a Federal contribution of $121,000,000, to be 
paid over 7 years. Of this total, $88,000,000 is authorized to be 
deposited into two trust accounts for the Pueblo's use. We are 
concerned about the large Federal contribution in the trust fund and 
believe there should be further discussion with the parties about the 
activities included in this part of the settlement.
    An additional $33,000,000 is authorized to fund 75% of the 
construction cost of various projects that have been identified as 
mutually beneficial to the Pueblo and local non-Indian parties. The 
State and local share of the settlement is a 25% cost-share for 
construction of the mutual benefit projects ($11,000,000). The 
Settlement Agreement provides that the State will contribute additional 
funds for the acquisition of water rights for the non-Indians and 
payment of operation, maintenance and replacement costs associated with 
the mutual benefits projects. The Administration believes that this 
cost-share is disproportionate to the settlement benefits received by 
the State and local non-Indian parties. We believe that increasing the 
State and local cost-share for the mutual benefit projects is both 
necessary and appropriate, and consistent with the funding parameters 
of other Federal water resources programs.
    An unusual and problematic provision of H.R. 3254 would allow the 
Pueblo to receive and expend $25 million for the purposes of protecting 
and restoring the Buffalo Pasture, constructing water infrastructure, 
and acquiring water rights before the settlement is final and fully 
enforceable. The Department believes providing early settlement 
benefits is not good public policy and has consistently advocated that 
the settlement benefits that are provided in Indian water rights 
settlements should be made available to all parties only when the 
settlement is final and enforceable so that no entity can benefit if 
the settlement fails. Limited departure from this practice may 
sometimes be appropriate, but there should always be statutory 
provisions ensuring that the United States is able to recoup unexpended 
funds or receive credits or off-sets for the water and funding provided 
by the United States if the settlement fails and litigation resumes. 
The amount of funding that would be provided to Taos before the 
settlement is final is also of concern. In previous settlements 
allowing early benefits, the funding was far more limited ``less than 
$4 million. Although the Department understands the Pueblo's need for 
immediate access to funds, especially to halt deterioration of the 
condition of Buffalo Pasture, we remain concerned about the precedent 
that this would set for the many other pending Indian water settlements 
that are working their way toward Congress. We recommend that the bill 
be amended to reduce the amount of early money that is authorized.
    H.R. 3254 also sets a deadline for the Department to enter into the 
contracts that will be impossible for the Department to meet taking 
into consideration the environmental compliance and other work that 
must be accomplished before the contracts can be executed. If the 
contracts are to be awarded before the settlement is final, we 
recommend that the deadline for entering into the contracts be extended 
to 9 months after the date of enactment of this legislation.
    We also recommend that the settlement legislation be amended to 
require Secretarial approval for all water leases and subcontracts. As 
currently written, section 7(e)(2) exempts leases or subcontracts of 
less than 7 years duration from the approval requirement. Secretarial 
approval is required for all existing San Juan Chama subcontracts and 
we believe there is no reason to depart from that practice here. With 
respect to leasing other types of water, the requirement of Secretarial 
approval has been the standard practice in Indian water rights 
settlements.
    Moreover, the United States recommends that Section 12(a)--which 
waives the sovereign immunity of the United States for ``interpretation 
and enforcement of the Settlement Agreement'' in ``any court of 
competent jurisdiction''--be eliminated. This waiver is unnecessary, as 
demonstrated by the absence of such a waiver in H.R. 3342, the Aamodt 
Litigation Settlement Act. Further, this provision will engender 
additional litigation--and likely in competing state and federal 
forums--rather than resolving the underlying adjudication.
    Finally, the United States is concerned that H.R. 3254 as 
introduced fails to provide finality on the issue of how the settlement 
is to be enforced. The bill leaves unresolved the question of which 
court retains jurisdiction over an action brought to enforce the 
Settlement Agreement. This ambiguity may result in needless litigation. 
The Department of Justice and the Department believe that the decree 
court must have continuing and exclusive jurisdiction to interpret and 
enforce its own decree.
Conclusion
    The Taos settlement is the product of a great deal of effort by 
many parties and reflects a desire by the people of the State of New 
Mexico, Indian and non-Indian, to settle their differences through 
negotiation rather than litigation. Settlement of the underlying 
litigation and related claims in this case would fulfill a long-
standing federal goal of restoring to the Taos Pueblo the water rights 
and water resources necessary for its economic and cultural future, 
while at the same time accomplishing this goal without causing harm to 
local farmers, communities and other non-Indian water-users within the 
Taos basin. Overall, it provides some innovative mechanisms for 
managing water in Taos Valley to satisfy the Pueblo's current and 
future water needs, while minimizing disruption to the non-Indian water 
users.
    The Administration wants to avoid continued and unproductive 
litigation which, even when finally concluded, may leave parties 
injured by and hostile to its results, ensuring continued friction in 
the basin to the detriment of both the Pueblo and its non-Indian 
neighbors. We believe that this settlement contains some important 
compromises and has the potential to produce positive results for all 
the parties concerned. While we have some remaining concerns with the 
bill, the Administration is committed to working with Congress and all 
parties concerned towards a settlement that the Administration can 
fully support. In addition, we would like to work with Congress to 
identify and implement clear criteria for going forward with any future 
settlements on issues including cost-sharing and eligible costs.
    Madam Chairwoman, this concludes my statement. I would be pleased 
to answer any questions the Subcommittee may have.
                                 ______
                                 

 Statement of Michael L. Connor, Commissioner, Bureau of Reclamation, 
             U.S. Department of the Interior, on H.R. 3342

    Madam Chairwoman and members of the Subcommittee, I am Mike Connor, 
Commissioner of the Bureau of Reclamation. I am pleased to provide the 
Department of the Interior's views on H.R. 3342, the Aamodt Litigation 
Settlement Act, which would provide approval for, and authorizations to 
carry out, a settlement of the water rights of four pueblos in New 
Mexico--the Pueblos of Tesuque, Nambe, Pojoaque, and San Ildefonso. 
This Administration supports the resolution of Indian water rights 
claims through negotiated settlement. Our general policy of support for 
negotiations is premised on a set of general principles including that 
the United States participate in water settlements consistent with its 
responsibilities as trustee to Indians; that Indian tribes receive 
equivalent benefits for rights which they, and the United States as 
trustee, may release as part of a settlement; that Indian tribes should 
realize value from confirmed water rights resulting from a settlement; 
and that settlements are to contain appropriate cost-sharing 
proportionate to the benefits received by all parties benefiting from 
the settlement.
    This settlement would resolve a contentious water dispute in 
northern New Mexico, as well as a federal court proceeding that has 
been ongoing for over 40 years. We recognize that substantial work and 
refinements have been made to this settlement by the parties and the 
New Mexico delegation. As a result, the parties have taken positive and 
significant steps toward meeting the Federal goals just articulated, 
contributing to long-term harmony and cooperation among the parties. We 
would like to continue to work with the parties and the sponsors to 
address certain concerns, including those discussed in this statement 
(such as appropriate non-Federal cost share) that could make this a 
settlement that the Administration could wholeheartedly support.
Negotiated Indian Water Rights Settlements
    Settlements improve water management by providing certainty not 
just as to the quantification of a tribe's water rights but also as to 
the rights of all water users. That certainty provides opportunities 
for economic development for Indian and non-Indians alike. Whereas 
unquantified Indian water rights are often a source of tension and 
conflict between tribes and their neighbors, the best settlements 
replace this tension with mutual interdependence and trust. In 
addition, Indian water rights settlements are consistent with the 
Federal trust responsibility to Native Americans and with a policy of 
promoting Indian self-determination and economic self-sufficiency. For 
these reasons and more, for over 20 years, federally recognized Indian 
tribes, states, local parties, and the Federal government have 
acknowledged that, when possible, negotiated Indian water rights 
settlements are preferable to protracted litigation over Indian water 
rights claims.
    In analyzing settlements, the Administration must consider the 
immediate and long-term water needs of the Indian tribes, the merits of 
all legal claims, the value of water, federal trust responsibilities, 
economic efficiency measures, and the overall promotion of good public 
policy. An additional critical component of our analysis is cost 
sharing.
Historic Water Conflicts in Rio Pojoaque Basin
    Before discussing the proposed settlement and the Administration's 
concerns with it, it is important to provide background on the disputes 
that led to the settlement. The Rio Pojoaque basin, immediately north 
of Santa Fe, New Mexico, is home to the four Pueblos of Tesuque, Nambe, 
Pojoaque and San Ildefonso. In total the Pueblos hold approximately 
51,000 acres of land in the basin. Like other pueblos in New Mexico, 
the four Pueblos were agricultural people living in established 
villages when the Spanish explorers first entered the area. Before the 
Pueblos' lands became part of the United States, they fell under the 
jurisdiction first of Spain, and later of Mexico, both of which 
recognized and protected the rights of the Pueblos to use water. When 
the United States asserted its sovereignty over Pueblo lands and what 
is now the State of New Mexico, it did so under the terms of the Treaty 
of Guadalupe Hidalgo. In the Treaty, the United States agreed to 
protect rights recognized by prior sovereigns including Pueblo rights. 
In 1858, Congress specifically confirmed many Pueblo grant land titles, 
including those of the Pueblos of Tesuque, Nambe, Pojoaque and San 
Ildefonso.
    Subsequently, patents were issued to the Pueblos of New Mexico 
which, in effect, quitclaimed any interest the United States had in the 
Pueblos' grant lands. The Pueblos were then considered to own their 
lands in fee simple, unlike most other Indian tribes. Despite this 
unusual title arrangement, the United States asserted jurisdiction over 
the Pueblos for their benefit, seeking to protect Pueblo lands and 
resources by extending the restrictions on alienation of Indian lands 
in the Indian Trade and Intercourse Acts to Pueblo lands. 
Unfortunately, initial efforts by the United States to protect Pueblo 
lands and waters were ineffective. New Mexico's territorial courts did 
not accept the application of the Trade and Intercourse Act to Pueblo 
lands. In United States v. Joseph, 94 U.S. 614 (1876), the Supreme 
Court expressly held that the Pueblos were not Indian tribes within the 
meaning of the 1834 and 1851 Non-intercourse Acts. This meant that non-
Indians were able to buy Pueblo lands without regard to federal Indian 
law and as a result, there was significant loss of Pueblo lands to non-
Indians.
    After almost forty years of loss of land and water rights, the 
Supreme Court reversed its decision in Joseph and decided that the 
Pueblos were, in fact, covered by laws extending federal guardianship 
and protection. United States v. Sandoval, 231 U.S. 28, 48 (1913). The 
Supreme Court's reversal of opinion threw the status of title to lands 
occupied by 12,000 non-Indians in New Mexico, along with the water 
rights exercised on those lands, into serious doubt. Responding to the 
outcry concerning title, Congress sought to remedy the uncertainty by 
passing the Pueblo Lands Act of 1924, 43 Stat. 636, to ``settle the 
complicated questions of title and to secure for the Indians all of the 
lands which they are equitably entitled.''
    Under the 1924 Act, if the non-Indians could persuade a special 
lands board that they had used and occupied Pueblo land for a period of 
time, the non-Indians were awarded title, and the Pueblo was supposed 
to be compensated for the value. In practice, this resulted in the non-
Indians successfully claiming some of the most valuable, irrigable 
Pueblo farmland. The Pueblos of Tesuque, Nambe, Pojoaque and San 
Ildefonso collectively lost more than 4000 acres to claims by non-
Indians under the 1924 Act. The compensation awarded by the lands board 
to the Pueblos was lower than actual appraised values, and woefully 
inadequate. Congress followed up by enacting the 1933 Pueblo Lands Act, 
which provided additional compensation to the Pueblos and also 
expressly preserved the Pueblos' prior water rights, but the 
compensation still did not adequately remedy the losses to the Pueblo.
    In passing the 1924 and 1933 Acts, Congress recognized the 
necessity of resolving the uncertainty of title to land and water and 
also restoring the severely eroded economic footing of the Pueblos 
caused in large part by the loss of land and interference with water 
rights. Cash awards made to the Pueblos under the Acts were expressly 
intended to compensate the Pueblos for their losses and to help fund 
the replacement of their lost economic base through the purchase of 
lands, construction of irrigation projects, and by financing various 
other permanent improvements for the benefit of Pueblo lands. Sadly, 
the Acts did not fully accomplish their purposes. While land titles may 
have been more or less resolved, title to water rights clearly was not 
and uncertainty over title to water has continued to plague all the 
residents of the basin.
    In a final attempt to resolve title to these Pueblos' water, a 
general stream adjudication was initiated in 1966. That case, now in 
its 43rd year, is New Mexico v Aamodt and is one of the longest running 
cases in the federal court system. Forty-three years of litigation has 
yielded surprisingly little in the way of results. The parties 
initially skirmished over whether state or federal law applied and what 
role, if any, Spanish colonial and Mexican law would play. A 1976 
decision by the Tenth Circuit Court of Appeals held that the Pueblos' 
water rights were not subject to New Mexico's prior appropriation law. 
Subsequently, the United States District Court, nineteen years into the 
case, ruled the federal reserved water rights or Winters doctrine does 
not apply to the unique circumstances of the Pueblos' grant lands. The 
Tenth Circuit court denied interlocutory appeal and litigation 
proceeded on a Historically Irrigated Acreage (HIA) quantification 
standard for the grant lands, but a Winters right quantification 
standard for other lands reserved for the Pueblos. Judge Mechem 
directed the parties to negotiate in 1998, and in 2000 the litigation 
was stayed. The parties, who had engaged in sporadic settlement talks 
since 1992, then intensified their efforts to settle the litigation.
    The settlement negotiations were difficult for many reasons, 
including that the basin is chronically water short. The average annual 
surface water yield of the watershed is approximately 12,000 acre-feet 
per year, but claimed irrigated acreage calls for the diversion of 
16,200 acre-feet per year. Deficits have been addressed by using 
groundwater with the result that groundwater resources are now 
threatened. The negotiation goal of the parties was to control 
groundwater extraction in order to prevent impacts on surface water 
flows from excessive groundwater development. In order to allow junior 
state-based water right holders to continue to use water while still 
allowing the Pueblos the right to use and further develop their senior 
water rights, the non-federal parties agreed to a settlement centered 
on a regional water system that will utilize water imported from the 
San Juan basin to serve needs of the Pueblos and other water users in 
the Rio Pojoaque basin. In May 2006, the Pueblos, the State of New 
Mexico, and other non-federal settlement parties executed a Settlement 
Agreement which requires the construction of the regional water system 
to deliver treated water to Pueblos and non-Pueblo water users. It also 
requires the United States to provide, via the regional water system to 
be constructed, 2,500 acre/feet per year of imported water for Pueblo 
use.
Concerns Related to Cost
    H.R. 3342 approves this Settlement Agreement, authorizes the 
planning, design, and construction of the regional water system and 
authorizes the appropriation of $106.4 million for that system. In 
addition, the bill provides the Pueblos with a $37,500,000 trust fund 
to subsidize the operations, maintenance, and replacement costs of the 
system, and $15,000,000 to rehabilitate and maintain water-related 
infrastructure other than the regional system facilities. The bill also 
requires the United States to acquire water for Pueblo use in the 
regional water system by specific purchases and by allocating available 
Bureau of Reclamation San Juan-Chama Project water to the Pueblos. The 
total cost of the settlement is estimated to be at least $286.2 
million, with a federal contribution of $174.3 million, to be paid over 
13 years, and State and local contributions of about $116.9 million 
(subject to finalization and execution of the cost share agreement).
    This represents a 40% non-federal cost share which is a significant 
improvement over many past settlements and is moving in the right 
direction. The Administration considers the willingness of the settling 
parties to provide a significant cost share for this project to be a 
good indication that they are invested in and deeply supportive of this 
settlement. It is evident that serious consideration has been given by 
the settlement proponents to the design and intended function of the 
facilities to be constructed under this settlement. A settlement to 
which many interests are contributing deserves more favorable treatment 
by federal government than a settlement that comes at solely federal 
expense.
    Nevertheless, the Administration is concerned about the costs of 
this settlement for several reasons. First, the absence of a signed 
cost share agreement among the parties for the construction of the 
regional water system creates uncertainty about the viability of the 
system as planned and the costs to be borne by the United States.
    Second, the Administration is concerned about the validity of the 
cost estimates that the settlement parties are relying on for the 
regional water system. The parties rely on an engineering report dated 
June 2007 that has not been verified by the level of study that the 
Bureau of Reclamation would recommend in order to assure reliability. 
Much of the cost information contained in the engineering report was 
arrived at three years ago, none of the costs have been indexed to 
2007, and the total project cost estimates cannot be relied upon. Any 
additional costs (both for the Pueblo related and non-Pueblo related 
components of the regional water system) may become the responsibility 
of the United States under H.R. 3342. To better understand the risks 
associated with costs that could potentially greatly exceed the current 
cost estimate, Reclamation has identified and is allocating the 
resources necessary to complete a design, engineering, and construction 
review of the engineering report by the end of this calendar year. On 
the basis of this review, Reclamation will be able to provide the bill 
proponents with a better sense of whether or not the project is likely 
to be able to be completed using the funds authorized in this bill. The 
Administration believes that the parties should agree in the cost share 
agreement that the non-federal parties will share proportionately any 
increases in cost estimates that result from Reclamation's analysis.
    Third, multiple site-specific cost issues remain that cannot be 
resolved until final project design is completed, not the least of 
which is access limitations at the diversion point for the system on 
the Rio Grande. The costs associated with NEPA and EIS compliance, 
acquiring unspecified easements (including possible condemnation 
expenses), and agency implementation costs have not been studied and 
are not included in current cost estimates to develop the proposed 
regional water system. These uncertainties will likely serve to drive 
the overall settlement's costs and the corresponding Federal commitment 
higher than anticipated. These costs should be reflected in the 
authorization levels provided for in this bill.
Other Federal Concerns
    In addition to costs, there are other provisions and issues that 
need to be addressed and resolved.
    The waiver provisions of this bill were significantly improved as a 
result of negotiations over the last year between the Pueblos, non-
federal parties, and the United States. Nonetheless, there is one 
ongoing concern. The waiver provisions of H.R. 3342 include a provision 
that could be interpreted as waiving important environmental 
protections that would otherwise be available to the Pueblos, the 
citizens of New Mexico, and the United States. This provision, section 
204(a)(9) of the bill, is confusing and unnecessary, and could lead to 
injury to the environment. The Administration cannot accept waivers 
which have the potential to erode important environmental safeguards 
put in place to permit the United States to take actions to protect the 
health, safety, and well being of its citizens and the environment. 
Fortunately, I am pleased to report that the parties have worked with 
the Departments of Interior and Justice on this issue and it is my 
understanding that they have reached agreement on removal of this 
provision.
    In addition, the settlement poses an arrangement under which the 
United States will expend significant funds to plan, design and 
construct a regional water system. While the Pueblos would be waiving 
their water rights and related damages claims in exchange for the 
system, under H.R. 3342 the Pueblos retain the right to withdraw these 
waivers and trigger nullification of the entire settlement agreement, 
if the system is not substantially complete by 2021. To minimize the 
risk of building a system only to have waivers withdrawn and the 
settlement fail, the Administration believes the legislation should 
include: (1) a definition of substantial completion, (2) a mechanism 
for determining when it has occurred, and (3) a clearly specified 
process to challenge that determination.
    The Administration has long worked with local parties on these 
issues and has strongly advocated for a process under which substantial 
completion is determined by the Secretary of the Interior and, 
subsequently, subject to review under the Administrative Procedures 
Act. Our concern stems from the fact that, as introduced, the 
legislation provides neither certainty of process nor any clear 
substantive standards for how a determination that substantial 
completion has not been achieved would be made, or how a court would be 
expected to handle any subsequent review and litigation over the 
settlement voiding provisions contained in H.R. 3342 if these 
provisions are triggered. Under the provisions of H.R. 3342 as 
introduced, the only certainty is that any litigation ensuing from a 
claim to void the settlement would be protracted, expensive, and have 
few bounds. The United States believes that one lesson to be learned 
from the forty-three years of Aamodt litigation is not to set up a 
legal regime that has the potential to lead to expensive, long-lived, 
and futile litigation. The Administration believes that the bill must 
adopt such a substantial completion provision.
    Finally, while language in section 203(f) provides generally in the 
event the settlement is voided that the United States is entitled to 
return of any unexpended federal funds and property, the Administration 
suggests that Congress add additional language to clarify that the 
United States is entitled to recoup or obtain credit for its 
contributions to settlement in the case that the settlement fails.
Conclusion
    The Aamodt settlement is the product of a great deal of effort by 
many parties and reflects a desire by the people of the State of New 
Mexico, Indian and non-Indian, to settle their differences through 
negotiation rather than litigation. Settlement of the underlying 
litigation and related claims in this case would fulfill a long-
standing federal goal of restoring to the Pueblos the water rights and 
water resources necessary for their economic and cultural future. This 
settlement would accomplish this goal by stabilizing chronic 
groundwater deficits in the basin without causing harm to local water 
users. Overall, the proposed settlement would provide some innovative 
mechanisms for managing water in Pojoaque River basin to satisfy the 
Pueblos' current and future water needs while minimizing disruption to 
the non-Indian water users.
    The Administration wants to avoid continued and unproductive 
litigation which, even when finally concluded, may leave parties 
injured by and hostile to its results. Neither the Pueblos nor their 
non-Indian neighbors benefit from continued friction in the Rio 
Pojoaque basin. We believe settlement can be accomplished in a manner 
that protects the rights of the Pueblos and also ensures that the 
appropriate costs of the settlement are borne proportionately. While we 
have some remaining concerns with the bill, the Administration is 
committed to working with Congress and all parties concerned in 
developing a settlement that the Administration can fully support. In 
addition, we would like to work with Congress to identify and implement 
clear criteria for going forward with future settlements on issues 
including cost-sharing and eligible costs.
    Madam Chairwoman, this concludes my statement. I would be pleased 
to answer any questions the Subcommittee may have.
                                 ______
                                 
    Mrs. Napolitano. Thank you, Commissioner. And we will start 
off with Mr. Nelson Cordova, Councilman and Water Rights 
Coordinator, Pueblo Taos, Taos, New Mexico, on H.R. 3254.
    I am not quite sure, but I think we have a vote just 
starting, so we will have enough time for at least one witness.
    Please.

  STATEMENT OF NELSON J. CORDOVA, COUNCILMAN AND WATER RIGHTS 
         COORDINATOR, PUEBLO OF TAOS, TAOS, NEW MEXICO

    Mr. Cordova. Chairman Napolitano, Ranking Member 
McClintock, and members of the Subcommittee, Congressman Lujan 
and Congressman Heinrich, and my fellow panelists, my name is 
Nelson J. Cordova. I am a Taos Pueblo Tribal Council member.
    For the past 20 years, Councilman Gilbert Suazo, Sr., and I 
have served as Taos Pueblo's representatives in the Taos Valley 
water rights settlement negotiations.
    Here with me is our tribal leadership, Governor Rubin 
Romero, War Chief Bernard Lujan, War Chief Secretary Floyd 
Gomez, Tribal Council Secretary Ernesto Luhan, and Councilman 
Suazo. Also with me is our attorney, Susan Jordan, with the 
Nordhaus Law Firm.
    We have lost many of the elders who started the settlement 
process with us in 1989, and I dedicate this testimony in their 
memory.
    It has been six years since we signed principles of 
agreement among the Taos Valley settlement parties. At that 
time we reported to our Tribal Council that we were almost 
there. Then it took another two years of negotiations to 
complete the draft settlement agreement among the local 
parties. Again we reported to the council that we were almost 
there.
    Another two years of Federal negotiations were required to 
get our legislation introduced last July. We again told council 
we are almost there.
    Our bill was favorably reported out of the Senate Indian 
Affairs Committee last year, and last September I testified 
before this Subcommittee.
    After years of engagement with our Federal negotiation team 
and many compromises to meet Federal requirements for Indian 
water rights settlement, we were disappointed to hear the prior 
Administration testify they could not support our bill because 
they were concerned about finality and cost.
    We stayed here in D.C. after that hearing, and we 
successfully negotiated our waivers of claims with the 
Administration to resolve their finality concern. We then 
jointly submitted revised waiver provisions to our 
Congressional delegation in time for possible inclusion in the 
2008 Omnibus Public Lands Bill, and again we were almost there. 
But the bill could not be passed, as Congress's attention 
shifted exclusively to the national economic crisis.
    Our bill as introduced this year contains the compromised 
waiver provisions, and the Administration has continued to hold 
our language as the model for Indian water rights settlements.
    The previous Administration said our settlement costs were 
too high. But they only considered the direct litigation costs 
to the United States of adjudicating the Pueblo's water rights. 
They did not consider the avoided liability for breach of trust 
claims, nor the avoided indirect costs of continued litigation 
that must be weighed under the Federal criteria and procedures 
for Indian water rights settlements.
    Our total Federal funding is modest. There are no huge 
expensive projects. Rather, there are small projects designed 
to mitigate the impacts of competing water uses.
    From our experience, the Administration grossly undervalues 
the benefits of Indian water rights settlements. The 
Administration's concern about making a portion of our funding 
available upon appropriation is misplaced. This early money is 
essential to ensure the successful implementation of the 
settlement to meet the Federal criteria of finality.
    There is precedent for early money. And if the settlement 
were to fail, the United States may offset these funds against 
its liability for breach of trust for failure to protect our 
water rights.
    We have engaged the current Administration since February. 
We have submitted finer minor changes to the bill to address 
their concerns about providing the Secretary sufficient time to 
approve the three San Juan-Chama project contracts in allowing 
Secretarial approval for short-term San Juan-Chama project 
subcontracts.
    Our tribal council is concerned. Why, after we have done 
everything that has been asked of us, our settlement still 
waits for Federal support and approval.
    This process has been a tremendous burden on the Pueblo's 
scarce financial resources. Federal funding has never been 
sufficient, leaving us no choice but to borrow money from a 
bank to carry on the settlement process. If it were up to us 
and Deputy Secretary Hayes, who worked on our settlement in the 
Clinton Administration, and Commissioner Connor, who was our 
Federal Team Chair, I think we would be done.
    When we read the Administration's testimony this morning, 
we immediately requested a meeting with them while we are here 
in D.C. to get this done. They are not available. But I have 
asked Pam Williams to meet with us, and we will meet with her, 
as we have many times.
    We remain concerned, however, whether OMB will persist in 
under-valuing the benefits of Indian water rights settlements. 
Our settlement is an opportunity for this Administration to 
show it can support a modest cost-effective settlement.
    Thank you, Madame Chairman.
    [The prepared statement of Mr. Cordova follows:]

  Statement of Councilman Nelson J. Cordova, Taos Pueblo, on H.R. 3254

    Honorable Chairwoman Napolitano, Ranking Member McClintock, and 
Members of the Subcommittee:
    My name is Nelson J. Cordova. I am a Taos Pueblo Tribal Councilman, 
having served as Governor in 2001 and War Chief in 1999. Thank you for 
the opportunity to provide Taos Pueblo's testimony in support of H.R. 
3254, the Taos Pueblo Indian Water Rights Settlement Act. With me today 
are Governor Ruben A. Romero, War Chief Bernard Lujan, Tribal Council 
Secretary Ernesto Luhan, War Chief Secretary Floyd Gomez, and Tribal 
Councilman and former Governor Gilbert Suazo, Sr. For the past 20 
years, Councilman Suazo and I have served as Taos Pueblo's 
representatives in the Taos Valley water rights settlement 
negotiations.
    Also with me is our water rights attorney, Susan Jordan of the 
Nordhaus Law Firm. Allow me to recognize Palemon Martinez, President of 
the Taos Valley Acequia Association (TVAA) representing the 55 
community ditch associations, TVAA Board Member Bennie Mondragon, TVAA 
attorney Fred Waltz, and DL Sanders, Chief Counsel for the New Mexico 
Office of the State Engineer. The other local parties to the settlement 
are the Town of Taos, El Prado Water and Sanitation District (EPWSD) 
and the 12 Taos-area Mutual Domestic Water Consumers' Associations.
    The decades we have spent litigating and negotiating our water 
rights have put a tremendous burden on the Pueblo's scarce financial 
resources. Federal funding and technical assistance have never been 
sufficient. To continue the process we have had to borrow money from a 
bank. This adjudication commenced before our grandfathers successfully 
completed the 64-year struggle for the return to Taos Pueblo of the 
lands now known as the Blue Lake Wilderness Area (Public Law 91-550). 
Their testimony to Congress during that struggle was about land 
necessary to sustain Taos Pueblo's cultural traditions. My testimony 
today is about water, the lifeblood of my people's spiritual, physical 
and cultural sustenance. The majority of our elders who were appointed 
to the Pueblo's Water Right Task Force have passed on without seeing 
completion of this settlement. I dedicate this testimony to their 
memory.
PART I: SETTLEMENT BACKGROUND AND BENEFITS
    In this Part I, I will provide the context for the settlement by 
explaining its major terms and benefits. In Part II, starting on page 
10, I will discuss how the settlement is consistent with the federal 
Criteria and Procedures for Indian Water Rights Settlements. I will 
also discuss the compromises by the Pueblo to resolve the 
Administration's concerns.
The Waters Involved in this Adjudication:
    This legislation will authorize the Taos Pueblo Indian Water Rights 
Settlement negotiated among parties to the adjudication of the waters 
of the Taos Valley, entitled State of New Mexico ex rel. State Engineer 
v. Abeyta and State of New Mexico ex rel State Engineer v. Arrellano. 
This adjudication has been pending in the United States District Court 
for the District of New Mexico since 1969. The adjudication includes 
three tributaries of the Rio Grande in northern New Mexico, namely the 
Rio Pueblo, Rio Lucero and Rio Hondo, or in our Tiwa language, the 
Tuatah Bah-ah-nah, Bah bah til Bah ah nah, and Too-hoo Bah ah nah. 
These stream systems produce average annual flows before diversions in 
the range of 90,000 acre-feet per year (afy). Competition for use of 
this scarce resource has led to severe conflicts among the residents of 
the Taos Valley.
Taos Pueblo's Use of These Waters from Time Immemorial:
    Taos Pueblo, Tau-Tah, the place of the Red Willows, is located in 
North-Central New Mexico. We have over 2,450 enrolled members. Taos 
Pueblo's land base is roughly 100,000 acres, including semi-arid lands 
bordering the Rio Grande, irrigated farmlands, and mountain lands with 
peaks reaching up to nearly 13,000 feet. Our Blue Lake Wilderness Area 
is a major part of the watershed for the streams in the adjudication. 
Taos Pueblo is a National Historic Landmark and was designated a World 
Heritage Site in recognition of our enduring living culture. Our 
people, Tauh tah Dainah, have lived in the Taos Valley since time 
immemorial. As the first users of the valley's water resources, we 
constructed irrigation systems that are still in use today.
Centuries of Conflict:
    When the first Spanish explorers arrived in the Taos Valley in the 
1500's, they found a thriving agricultural community with an abundance 
of food crops. They called it the breadbasket of the region. Spanish 
settlers began their own agricultural tradition in the valley. As the 
non-Indian population grew, the demand for water increased, resulting 
in centuries of conflict. One of the oldest disputes over water in the 
valley heard in a formal legal proceeding resulted in the Mexican-era 
ayuntamiento of 1823 recognizing Taos Pueblo's time immemorial rights 
to waters of the Rio Lucero. The ruling did not end conflicts over the 
right to use the Rio Lucero, and non-Pueblo settlers obtained a decree 
in 1893 that ordered a new division of the stream flow. In the Abeyta 
adjudication, the Pueblo and the United States have disputed this 
territorial era decision. Thus, the Abeyta settlement will resolve a 
dispute under litigation in three centuries.
Nearly Two Decades of Negotiation:
    These longstanding, bitter water conflicts have bred generations of 
distrust and affected the ability of Taos Pueblo and our neighbors to 
live together and prosper. A breakthrough occurred in 1989 when the 
Pueblo and the TVAA agreed to resolve their water disputes by 
negotiation. The negotiations grew to include all of the major water 
rights owning parties in the Taos Valley, as well as the State of New 
Mexico and the United States. Each of the local parties came to 
recognize and respect the mutual need for water resources for the 
survival of the valley's agricultural traditions and for our 
communities' future. After 18 years of difficult negotiation, the 
parties reached a settlement agreement in 2006 that allocates water 
resources, protects existing supplies, preserves the Pueblo's cultural 
resources, and provides the basis for management of Taos Valley water 
resources in the future. The parties then went to Washington seeking 
legislation in unity. The Taos News, in an editorial on April 6, 2006, 
heralded the settlement as a ``gift of understanding'' by all involved 
in its negotiation.
Water Rights Secured by this Settlement:
    The settlement authorized by this legislation will secure to Taos 
Pueblo the right to deplete 11,927.51 afy of water. This quantity 
includes 7,883,44 afy for 5,712.78 acres of Historically Irrigated 
Acreage, 114.35 afy for stock ponds, 14.72 afy for stock wells, 300 afy 
for municipal, industrial and domestic use (current diversions), 1,300 
afy of additional groundwater, 100 afy in Rio Grande depletion credit, 
and 2,215 afy of San Juan-Chama Project (SJCP) water under a contract. 
In addition to the SJCP contract to the Pueblo, the Town of Taos and 
EPWSD will receive contracts for 366 afy and 40 afy, respectively, 
bringing the total SJCP water to be contracted to 2,621 afy. These 
contracts are essential to ensure that the Pueblo will have water to 
serve our present and future needs and to allow for more sustainable 
and less disruptive growth in the Taos Valley.
Funding Necessary for this Settlement:
    The bill includes authorization of $58 million in appropriations to 
the Taos Pueblo Water Development Fund, $30 million in appropriations 
to the Taos Pueblo Infrastructure and Watershed Fund through the 
Secretary of Interior, and $33 million in appropriations for projects 
that will mutually benefit the Pueblo and non-Indian parties, for a 
total of $121 million in federal funding. The State of New Mexico will 
contribute $20.2 million in additional settlement funding toward the 
Mutual-Benefit Projects and for specific water rights acquisitions by 
non-Indian parties to bring them into permit compliance.
    It was extremely difficult for Taos Pueblo to put a monetary value 
on the claims we are conceding. So instead of evaluating the funding 
purely in terms of compensation that would never be enough, we focused 
on the amount of funding that will enable us, with careful management, 
to correct years of neglect of our water-related infrastructure by the 
United States and to implement each of the other settlement mechanisms 
designed to protect our water rights while enabling our neighbors to 
enjoy theirs.
    (1) Avoid further conflict through modest funding for vast Pueblo 
claims compromised: Importantly, the Pueblo is accepting the $88 
million in funding in exchange for (1) waiving our right to bring 
certain enormous damage claims against the United States, (2) waiving 
vast portions of senior water rights claims and related damage claims 
against other parties, and (3) forbearing on the exercise of about half 
of our senior water rights for historically irrigated acreage 
recognized in the settlement. By comparison with other Indian water 
settlements, the total funding is modest. There are no huge, expensive 
projects in this settlement. Rather, there are small projects designed 
to mitigate the impacts of competing water uses; funding for Pueblo 
infrastructure improvements; funding for a mechanism to accommodate 
junior irrigation uses and decrease the Pueblo's forbearance of our 
senior irrigation rights over time; and funding for the Pueblo's 
settlement administration responsibilities. All of these elements are 
necessary to make this unique, cooperation-based settlement work. They 
are tied together as a result of compromise. Removing any single 
component would unravel the settlement.
    (2) Redress federal failure to protect Taos Pueblo water rights and 
federal neglect of Pueblo irrigation infrastructure:
    Our potential damages claim against the United States for breach of 
its trust duty to protect Taos Pueblo's senior water rights involved in 
this adjudication greatly exceeds the funding amount called for in the 
settlement. From the beginning of the American period, the United 
States failed to pursue legal action to protect the Pueblo's lands and 
our enjoyment of our water rights. This federal inaction injured the 
Pueblo and prolonged conflict in the Taos Valley.
    Likewise, the federal government has failed to take the necessary 
steps as our trustee to manage the Pueblo's water rights and facilitate 
our water use. The federal government did, finally, expend some funds 
to construct new head gates and to rehabilitate certain ditch works at 
the Pueblo. However, that limited assistance came late in the period of 
American sovereignty and guardianship, in the midst of the pre-World 
War II economic depression, and the funding remained insufficient. 
Worse yet, the non-traditional construction materials and practices 
introduced by the federal government made it difficult for the Pueblo 
to maintain and repair the infrastructure with traditional techniques. 
In 2000, a joint investigation report by the Bureau of Indian Affairs 
and the Bureau of Reclamation identified a serious need for the 
rehabilitation and repair of Pueblo irrigation infrastructure, based 
heavily on investigation of infrastructure on Taos Pueblo.
    Although these problems have long been documented, the repairs and 
rehabilitation--which are the responsibility of the Bureau of Indian 
Affairs Northern Pueblos Agency--were not accomplished due to funding 
cutbacks. Funding in small amounts has been secured from the Bureau of 
Reclamation in recent years for drought relief projects, such as a well 
for stock water, and head gate fabrication. However, these funds have 
been grossly insufficient.
    The foregoing is a small slice of the history of federal neglect 
and mismanagement, and the inequitable federal treatment of Taos 
Pueblo, but it is illustrative of our relevant damage claims against 
the federal government that greatly exceed the settlement funding. 
Likewise, Taos Pueblo's claims for aboriginal irrigation water rights 
in the litigation are substantially greater than the water quantities 
we will receive in settlement. We also agree to forbear exercising 
substantial amounts of our senior historically irrigated acreage 
rights, and I will discuss that more in a moment.
    (3) Address irrigation system disrepair: Currently, 2,322.45 acres 
of Pueblo lands in the Taos Valley are irrigated with infrastructure in 
deplorable condition. Much more farmland cannot be irrigated because 
there is no way to convey water to these fields without extensive 
repair and rehabilitation to our infrastructure, and many fields need 
laser leveling for efficient distribution of water. BIA has not done 
any repairs of significance in decades. Settlement funding will allow 
the Pueblo to rehabilitate and replace diversion structures and ditch 
linings and construct improvements. This will enable the Pueblo to 
recover from the long history of federal neglect of our irrigation 
systems and to revitalize our agricultural heritage for self-
sustainability.
    (4) Remedy lack of running water and wastewater system access: Many 
of our people lack running water in their homes or a connection to a 
wastewater system because the existing system does not extend to their 
homes. Some of our people still get their water for domestic use 
directly from the streams, irrigation ditches, and springs. This may 
sound quaint and appealing, but in freezing winter weather it creates a 
hardship that should not be acceptable in this day and age. Settlement 
funding will help us to improve and expand our community water and 
wastewater system to better serve our people in existing homes and in a 
backlog of homes pending construction.
    (5) Protect the watershed and support agriculture and water-related 
Pueblo community welfare and economic development: A large portion of 
water that serves Taos Pueblo and non-Indian parties is produced within 
the watersheds on Pueblo land. Establishing a Pueblo watershed program 
will protect this precious resource. A recent fire in the watershed 
caused flood damage and contaminated the surface water supply. Our 
people who rely on it had to haul water from an alternative source. 
This contamination remains a continuing threat following every snowmelt 
and rainfall runoff.
    While our need for irrigation infrastructure repair is critical, 
support of agriculture requires more than ditch rehabilitation. We need 
to improve our ability to support the efforts of farmers and engage in 
tribal agriculture efforts to maintain our traditional way of life. At 
the same time, water infrastructure to support economic development 
will enable the Pueblo to become more self-sufficient.
    (6) Acquire and retire junior water rights to decrease the Pueblo's 
forbearance: Under the settlement, the non-Indian parties agreed to 
recognize Taos Pueblo's right to deplete 7,883.44 afy for our 
Historically Irrigated Acreage totaling 5,712.78 acres. In turn, the 
Pueblo agreed to initially forbear exercising our right to irrigate 
3,390.33 acres of this amount as of the 2006 Draft Settlement Agreement 
signing date. This forbearance will decrease over time as junior 
irrigation rights are acquired on a willing seller basis and retired by 
the Pueblo, or are abandoned or forfeited under state law, or (with 
certain exceptions) are transferred to a non-irrigation use or out of 
the Taos Valley and curtailed through the exercise and enforcement of 
the Pueblo's aboriginal priority date. This mechanism is necessary 
because the Pueblo's full exercise of our Historically Irrigated 
Acreage would otherwise seriously disrupt non-Indian irrigation. It is 
a major concession by Taos Pueblo to make the settlement work. A 
linchpin of the settlement is funding sufficient to acquire and retire 
a threshold quantity of junior rights prior to the Enforcement Date 
(see page 9) and an additional quantity over time to allow full 
exercise of the Pueblo's senior Historically Irrigated Acreage rights.
    (7) Provide water management and administration and support 
negotiation and implementation of the settlement: This settlement is 
necessarily complex and places substantial policy and administrative 
responsibilities on Taos Pueblo. The Pueblo will need to manage and 
administer our water rights to carry out the provisions of the 
settlement in a manner that utilizes traditional and contemporary 
professional water management practices. We will need to administer the 
purchases and retirement of junior water rights and the leasing of 
Pueblo water rights. Years of inadequate federal funding necessitate 
that a portion of the settlement fund cover the Pueblo's negotiation, 
authorization and implementation costs.
    (8) Protect the Pueblo's sacred natural wetland from groundwater 
pumping: The Pueblo's culturally important natural wetland known as the 
Buffalo Pasture supports herbs, plants, clays, wildlife and waterfowl 
essential to our ceremonies. This unique wetland provides irrigation 
water for the Pueblo and non-Indians, and it is the start of a 
greenbelt extending through the valley. As municipal pumping around the 
wetland increased over the last 60 years, it significantly diminished 
in size. The settlement will restore and maintain this natural wetland 
through groundwater recharge (the Buffalo Pasture Recharge Project) and 
movement of municipal wells away from the wetland.
    (9) Fund implementation early to ensure success: The Pueblo 
accepted the forbearance obligation only with a mechanism to allow us 
to start at a reasonable baseline amount of historically irrigated 
acreage in use. The recently irrigated amount of 2,322.45 acres is less 
than half of our 5,712.78-acre right due to the federal failure to 
protect our water rights from non-Indian encroachment and federal 
neglect of irrigation infrastructure (see pages 5 to 7). To reach the 
agreed upon target of 3,000 acres prior to the settlement Enforcement 
Date, we need to acquire and retire water rights from 700 acres of non-
Indian land. For this reason, the bill provides for the Pueblo to 
receive $15 million of the Taos Pueblo Water Development Fund upon 
appropriation, in part for the acquisition and retirement of this 
threshold amount.
    Another portion of this early money will allow us to begin design 
work on the most desperately needed infrastructure projects, including 
drinking water infrastructure and irrigation improvements to enable 
irrigation of the additional 700 acres (see pages 5-7). The additional 
$10 million of the Pueblo Water Infrastructure and Watershed 
Enhancement Fund to be made available early is needed to allow the 
Pueblo to construct the most urgently needed water infrastructure 
improvements and conduct watershed restoration to address continuing 
threats to the surface water supply (see pages 6-7).
    A major strength of our settlement is its reliance on innovative 
water management to make conflicting demands compatible. Wells will be 
monitored for compliance with pumping limits, various streams and 
diversions will be gauged, detailed surface water sharing agreements 
between the Pueblo and numerous acequia associations will be 
administered, the Pueblo will administer our water transfers through 
specified procedures and standards and must develop and implement a 
more detailed Pueblo Water Code. In order for these measures to be in 
place upon the Enforcement Date so that the settlement can succeed, we 
need to immediately develop our water management and administration 
regulations and procedures and hire the necessary staff. The early 
acquisition and retirement of water rights will likewise require 
significant administrative resources prior to the Enforcement Date to 
accomplish the hundreds of transactions with individual farmers 
necessitated by the typically small farm size in the Taos Valley. 
Similarly, we will incur significant negotiation and implementation 
costs in meeting the conditions precedent to the enforceability of the 
settlement, including the process to obtain the Partial Final Decree 
and the amendment of the Draft Settlement Agreement to conform to the 
legislation. The bill allows us to use the $15 million for these 
purposes to ensure the settlement is implemented and meets the criteria 
of finality.
    This early money will also fund the Buffalo Pasture Recharge 
Project because it needs to be operational early in the settlement 
implementation to restore this endangered natural and cultural resource 
and to protect it from municipal pumping (see page 9). A portion of the 
Water Development Fund is available early for this purpose.
    (10) Jointly support Mutual-Benefit Projects: The settlement 
parties devised a series of small Mutual-Benefit Projects tailored to 
resolve complicated disputes over specific water use issues. A 
Mitigation Well System will pump groundwater from deep aquifers to 
offset surface water depletion effects resulting from the parties' 
future groundwater development, thereby alleviating competition among 
the parties for the acquisition of acequia water rights. The Arroyo 
Seco Arriba storage project will enable an acequia community to store 
non-irrigation season flows for retrieval when needed as part of the 
resolution of the centuries-old Pueblo-Acequia dispute over allocation 
of the Rio Lucero. Funding of the Acequia Madre del Prado stream gage 
will facilitate implementation and enforcement of surface water sharing 
provisions. The settlement limits the Town's and EPWSD's pumping from 
its existing well field and prohibits use of those wells closest to the 
Buffalo Pasture by providing replacement wells located farther away and 
deeper to protect the Pueblo's sacred cultural resources in this 
natural wetland.
PART II: FEDERAL CRITERIA MET AND COMPROMISES MADE TO ADDRESS THE 
        ADMINISTRATION'S CONCERNS
Criteria and Procedures for Indian Water Rights Settlements:
    The Taos Pueblo settlement meets the United States policy for 
settlement of Indian water rights cases as embodied in the Criteria and 
Procedures for Indian Water Rights Settlements published by the 
Department of the Interior (DOI) on March 12, 1990 (55 Fed. Reg. 9223). 
The prior Administration failed to apply these criteria correctly.
This Settlement Meets the Criteria and Procedures:
    These criteria are often stated in terms of the four policy goals 
set out below. Under each, I summarize how this settlement meets the 
goal.
    (1) Avoid the direct and indirect costs of continued litigation: 
This settlement resolves claims of Taos Pueblo, and the United States 
in its trustee capacity, as set forth more specifically in the waivers 
and releases of claims. As a result, the direct costs of continued 
litigation will be avoided. Indirect costs to the United States, the 
Pueblo, and other parties associated with conflicts over surface water 
use and groundwater withdrawals will also be avoided through the 
settlement's interconnected mechanisms for enabling the major water 
owning parties in the Taos Valley to move forward with water diversions 
in a manner that respects one another's water uses and other precious 
resources, such as the Pueblo's sacred wetland known as the Buffalo 
Pasture that has similar cultural significance to the Blue Lake 
mentioned earlier.
    (2) Resolve potential damage claims the tribes may bring against 
the United States for failure to protect trust resources, or against 
private parties for interference with the use of those resources: This 
settlement resolves claims of Taos Pueblo against the United States and 
other Abeyta parties as set forth more specifically in the waivers and 
releases of claims. The settlement also minimizes the potential for 
future water conflicts between the Pueblo and our neighbors. The 
parties carefully tailored the set of modest Mutual-Benefit Projects 
and other necessary settlement components, such as the Pueblo's 
forbearance combined with acquisition of junior rights, to accomplish 
this purpose cost effectively. The State's contributions to these 
mutual benefit projects are proportionate to the benefits received by 
the local parties.
    (3) Act consistently with the federal trust responsibility to 
tribes: The settlement addresses the trust responsibility not only by 
protecting the Pueblo's exercise of our water rights, but also by 
providing funding for the Pueblo to accomplish water-related 
infrastructure improvements necessitated by years of federal neglect. 
Consistent with the trust duty, the Pueblo can use the funding to 
implement our responsibilities under the settlement, including the 
management and administration of our water resources program. These 
items are not being funded through the normal federal budget process. 
The settlement structure, by providing the mechanisms for the Pueblo to 
develop and manage our water in harmony with our neighbors, ensures 
that the federal funding will meet the federal criteria to promote 
economic efficiency on reservations and tribal self-sufficiency.
    (4) Avoid the costs associated with senior Indian water rights 
displacing non-Indian water users: At the core of the settlement is 
Taos Pueblo's forbearance on the exercise of approximately half of our 
senior water rights for historically irrigated acreage and the 
mechanism for the Pueblo to increase our exercise of these rights over 
time. This creative approach avoids disrupting non-Indian irrigators, 
and does so on a willing seller basis that respects current uses. Thus, 
the settlement meets the federal criteria to be conducive to long-term 
harmony and cooperation among all interested parties through respect 
for the sovereignty of the states and tribes in their respective 
jurisdictions.
The Prior Administration's Application of the Criteria was Flawed:
    In contending that the settlement does not meet the federal 
Criteria and Procedures, the prior Administration asserted in testimony 
that (1) the State cost share is disproportionate to State and local 
benefits, (2) a federal contribution of the order of magnitude provided 
in H.R. 3254 is not appropriate because ``calculable legal exposure 
plus costs related to Federal trust or programmatic responsibilities do 
not justify'' the federal contribution amount, (3) the projects 
authorized would not ``promote economic efficiency,'' and (4) early 
money would be inappropriate. These arguments reflect a failure to 
apply the criteria correctly.
    (1) The state cost share is appropriate: The prior Administration 
apparently treated the Mutual-Benefit Projects as a 100% local non-
Pueblo benefit, when in fact those projects were designed to mutually 
benefit both the Pueblo and other local parties. It bears emphasis that 
the Abeyta Mutual-Benefit Projects are very modest in scale and cost.
    (2) The federal contribution is justified: The prior Administration 
reached the conclusion that the total settlement costs were too high by 
omitting or miscalculating several of the avoided costs to the federal 
government that the Criteria and Procedures require the Administration 
to weigh against settlement costs. Although the prior Administration 
cited the requirement to consider ``calculable legal exposure,'' it is 
apparent that they considered only the direct litigation costs to the 
United States of adjudicating the Pueblo's water rights in Abeyta. They 
did not consider the avoided liability for breach of trust for the 
claims against the United States to be waived by the Pueblo nor the 
avoided indirect costs of continued litigation.
    Although the prior Administration cited the requirement to weigh 
programmatic responsibilities, they apparently overlooked the fact that 
appropriations for programmatic responsibilities associated with Pueblo 
water rights and water infrastructure have been woefully inadequate to 
meet the United States' responsibility. Consequently, those past 
appropriation levels are not commensurate with the actual federal 
programmatic responsibilities, and thus are not a proper basis for 
comparison to the federal contribution. In short, the prior 
Administration undervalued the benefits of Indian water rights 
settlements by focusing only on one of the four factors--the direct 
costs to the United States of not continuing to litigate the water 
rights claims--and ignoring the other three factors under longstanding 
United States policy for Indian Water Rights Settlements. For these 
reasons, the prior Administration's withholding of support on the basis 
of cost was not valid. Furthermore, the $88 million in funding for the 
Pueblo is a substantial compromise from the $100 million Pueblo fund in 
the Draft Settlement Agreement that we signed in 2006.
    (3) The settlement will promote economic efficiency: In addition, 
the prior Administration misconstrued the criterion requiring that 
``settlements should be structured to promote economic efficiency on 
reservations and tribal self-sufficiency.'' See 55 Fed. Reg. 9223 
(emphasis added). It cited only the words ``economic efficiency,'' 
missing the fact this criterion goes to the benefits to the tribe from 
settlement funding that promotes on-reservation economic efficiency and 
makes the tribe more self-sufficient. The projects funded by the Abeyta 
settlement will largely be designed, managed and constructed by the 
Pueblo and will provide improved water infrastructure to support the 
Pueblo's agricultural, community and economic development, thereby 
promoting and enhancing the Pueblo's self-sufficiency and on-
reservation economic efficiency.
    (4) Early money is justified and has precedent:
    The prior Administration's testimony questioned the appropriateness 
of making funding available for initial water rights acquisition, for 
instance, to facilitate the settlement before all of the conditions 
precedent for the enforcement of the settlement have been met. This 
concern arose from the mistaken belief that making funding available 
upon appropriation is unprecedented. In fact, there are precedents for 
early funding. For example, the 2003 Zuni Indian Tribe water rights 
settlement legislation made funds available for acquisition of water 
rights and other activities carried out by the Zuni Tribe to facilitate 
the enforceability of its settlement agreement, including the 
acquisition of at least 2,350 acre-feet per year of water rights before 
the deadline for the settlement to become enforceable. See Zuni Indian 
Tribe Water Rights Settlement Act of 2003, Pub. L. No. 108-34, 
Sec. Sec. 4(b)(1) and 6(f)(1), 117 Stat. 782, 786, 789 (2003). 
Similarly, the Chippewa Cree Tribe of the Rocky Boy's Reservation water 
rights settlement legislation made funds available upon appropriation 
for certain administration responsibilities assumed by the Tribe. See 
Chippewa Cree Tribe of The Rocky Boy's Reservation Indian Reserved 
Water Rights Settlement and Water Supply Enhancement Act of 1999, Pub. 
L. No. 106-163, Sec. 105(a), (d)(3), 113 Stat. 1778, 1786, 1788 (1999).
    As explained in more detail on pages 9-10, this early funding will 
allow the Pueblo to acquire and retire an increment of water rights to 
partially decrease our forbearance, support Pueblo water administration 
and settlement negotiation costs, and enable us to commence the most 
urgently needed restoration and small water infrastructure improvements 
necessitated by federal neglect. In fact, the prior Administration's 
testimony acknowledged Taos Pueblo's need for immediate access to 
funds. In the unlikely event that the settlement does not become 
enforceable, the legislation provides the United States the right to 
set off any of these early funds expended or withdrawn against claims 
asserted by the Pueblo against the United States relating to water 
rights in the Taos Valley.
Compromises by Taos Pueblo to Resolve the Administration's Concerns:
    The prior Administration did not take an ``opposed'' position or 
``object'' to the passage of the Abeyta legislation. Rather, it 
testified that it merely ``could not support the legislation at this 
time'' and commended the Pueblo and other local parties on their 
efforts to address the Administration's issues. The prior 
Administration's main concern was the total cost of the settlement to 
the federal government, which as explained above, results from their 
misapplication of the Criteria and Procedures. Their nonmonetary 
concerns consisted only of two: (1) the waivers and releases of claims 
and (2) court jurisdiction. We successfully negotiated a resolution of 
those Administration concerns; indeed, the waivers and releases of 
claims provisions we negotiated have been touted by DOI and the Justice 
Department as the ``model'' for Indian water rights settlements ever 
since.
    (1) Finality and adequate protection of the United States from 
future liability: The prior Administration proposed revisions to our 
waiver language following the hearing on the bill before the Senate 
Committee on Indian Affairs, and just days prior to the hearing before 
the House Subcommittee on Water and Power in the 110th Congress. Taos 
Pueblo and other settlement parties immediately convened with DOI to 
discuss this language and the Pueblo remained in Washington, D.C. 
following the House hearing in September 2008 to continue the 
negotiations. The Abeyta parties reached agreement with the 
Administration on replacement waiver provisions and submitted these to 
the Congressional delegation on November 7, 2008, meeting the target 
date for possible inclusion in the 2008 Omnibus Public Lands bill. As 
Congress' focus in the lame duck session shifted exclusively to the 
national financial and economic crisis, it was not possible to pass the 
legislation as part of an omnibus package in the 110th Congress. H.R. 
3254 contains this agreed upon waivers language.
    (2) Court jurisdiction: The other nonmonetary concern identified in 
the prior Administration's testimony was whether unnecessary litigation 
over the jurisdiction of a court other than the decree court might 
occur. Their concern was that Section 12(a) of the bill provides for a 
limited waiver of sovereign immunity in the event that any party to the 
Settlement Agreement brings an action in ``any court of competent 
jurisdiction'' for interpretation or enforcement of the Settlement 
Agreement or the Act. This concern is unfounded given that similar 
language appears in recent Indian water rights settlement legislation. 
See, e.g., Shoshone-Paiute Tribes of the Duck Valley Reservation Water 
Rights Settlement, Pub. L. 111-11, Sec. 10809(e)(3), 123 Stat. 991, 
1413 (2009) (``United States consents to jurisdiction in a proper forum 
for purposes of enforcing the provisions of the Agreement''); Snake 
River Water Rights Act of 2004, Title X, Pub. L. No. 108-447, 
Sec. 11(f), 118 Stat. 2809, 3441 (2004) (``United States consents to 
jurisdiction in a proper forum''). The prior Administration ultimately 
agreed to the submittal last November to our Congressional delegation 
of revised legislation language retaining Section 12(a).
Engagement with the Current Administration:
    Early this year, we were heartened to hear Secretary of the 
Interior Ken Salazar attest to the Obama Administration's commitment to 
supporting Indian water rights settlements in his confirmation hearing 
before the Senate Committee on Indian Affairs. We flew to Washington to 
meet with the new Administration in February, and we traveled again in 
July to meet with Deputy Secretary David Hayes and Bureau of 
Reclamation Commissioner Mike Connor. We worked productively with Mr. 
Hayes during his tenure with the Clinton Administration in securing the 
funding for the hydrologic tests and modeling that laid the foundation 
for the settlement. Mr. Connor was similarly instrumental to the 
success of the settlement negotiations in his service as the Federal 
Negotiations Team Chair and to the advancement of our settlement 
legislation in the 110th Congress. We are therefore confident in the 
DOI leadership's personal understanding of the benefits of this 
settlement. We remain concerned, however, whether the Office of 
Management and Budget (OMB) under the current Administration will 
persist in the prior OMB's undervaluation of the benefits of Indian 
water rights settlements by misapplying the Criteria and Procedures. We 
place our hope in the new Administration and this Congress to recognize 
our settlement as a model approach deserving prompt enactment and 
funding.
Peace in the Valley:
    Taos Pueblo and the other parties took great care in crafting 
innovative solutions to bring ``peace in the valley'' with this 
settlement. In view of the long years of hard work and expense by Taos 
Pueblo and our neighbors to negotiate this settlement, and in 
recognition of its benefits to the residents of Taos Pueblo, the Taos 
Valley, the State of New Mexico and the United States Government, I 
strongly urge the Subcommittee to take favorable action on the Taos 
Pueblo Indian Water Rights Settlement Act. Passage of this legislation 
and appropriation of the necessary funds will pay off manyfold in 
cooperative use of water resources by the parties and future 
generations.
    I thank Chairwoman Napolitano, Ranking Member McClintock, members 
of the Subcommittee on Water and Power, our local Congressman Ben Ray 
Lujan, our New Mexico member of this Subcommittee Congressman Martin 
Heinrich, and other members of the New Mexico Congressional delegation 
for their support, and for the honor and privilege to provide this 
testimony. I also give thanks for the spiritual guidance I have 
received, and the support and advice of our tribal delegation present 
here today and those at home who await action by the Subcommittee and 
the Committee on Natural Resources. We ask that you be spiritually 
guided to make the right decisions on this bill and others that affect 
the lives and future of our people and our neighbors.
                                 ______
                                 
    Mrs. Napolitano. Thank you. We do have a vote. Do you want 
to go for another one?
    Would you be able to keep within five minutes? We may be 
able to do another presentation. That would be Hon. Charlie 
Dorame.
    Mr. Dorame. Yes, Chairwoman Napolitano.
    Mrs. Napolitano. OK. If you will proceed, then.

   STATEMENT OF HON. CHARLES J. DORAME, CHAIRMAN OF NORTHERN 
 PUEBLOS TRIBUTARY WATER RIGHTS ASSOCIATION, ALBUQUERQUE, NEW 
                             MEXICO

    Mr. Dorame. Good afternoon, members of the Committee. There 
are a couple people I would like to acknowledge in the audience 
right now. The Honorable Judge Michael Nelson, who has been on 
the negotiating team in New Mexico, and also The Honorable 
Frank Demolli from Pueblo Pojoaque.
    Having said that, I would like to go ahead and read a 
portion of my testimony. Again, my name is Charlie Dorame. I am 
a former Governor from the Pueblo Tesuque. I am the Chairman of 
the Northern Pueblo Tributary Water Rights Association, and I 
was here last year to testify on behalf of my tribes and the 
other three tribes in the area.
    Good afternoon, Chairwoman Napolitano and Ranking Member 
McClintock. Thank you for agreeing again this year to focus 
this Subcommittee's attention on the Aamodt Litigation 
Settlement Act, H.R. 3342, a comprehensive settlement of the 
Indian water rights claims of the Pueblos of Nambe, Pojoaque, 
San Ildefonso, and Tesuque.
    I also want to thank the Majority and Minority Subcommittee 
staff, who continue to demonstrate excellence and 
professionalism in all of our dealings.
    The House version of the Aamodt Litigation Settlement Act 
was introduced on July 24, 2009, by our Congressmen, The 
Honorable Ben Ray Lujan and The Honorable Martin Heinrich. As 
you know, on May 2009, Senators Jeff Bingaman and Tom Udall 
introduced the Senate version of the Settlement Bill 1105.
    As you also know, similar legislation was introduced and 
subject to legislative hearings in both the House and the 
Senate in the 109th Congress.
    I want to thank Congressman Lujan for his leadership in 
working with the four Pueblos, and indeed, with all of the 
settlement parties, to address unresolved issues and produce 
consensus legislation that is supported by the four Pueblos, 
the State of New Mexico, Santa Fe County, the City of Santa Fe, 
and the individual water users.
    Thank you for allowing me to read a portion of my 
testimony.
    I did provide you some pictures of the Pueblo Tesuque that 
are in your packet.
    Mrs. Napolitano. Without objection, they will be entered 
into the record.
    Mr. Dorame. Thank you.
    [NOTE: The pictures submitted for the record have been 
retained in the Committee's official files.]
    Mr. Dorame. To the left of me, last year we came with this 
particular picture that showed the water. Well, actually that 
picture there is known as the Rio Tesuque, the River of 
Tesuque.
    We also have another picture that I took on Friday 
afternoon that shows the same place. Again, you are looking at 
the River of Tesuque, Rio Tesuque. And this runs from Bishop 
Lodge all the way down into the Rio Grande.
    The next picture you will see will be a field of corn that 
does not get any water because of the dryness in the area, and 
trying to get that much-needed water to that area. What she is 
holding up right now is a picture of my grandfather's property, 
who, for your information, was here in 1966 testifying on the 
same issue. That is his field that was left to the family. And 
it is three-plus acres of land there that cannot be farmed 
completely because of the lack of water. So the family chose to 
plant just a small portion of that area.
    The other photo that you have shows the one small cornfield 
without the use of water. The second picture that shows corn 
that is approximately six feet in height, shows the upper 
river, where there is water. And again, just referring back to 
the family plot there.
    The last picture shows what used to be farmland, and right 
now all we have are weeds. And there is a cement-lined ditch in 
that area, but there is not enough water to plant this area. So 
we are very limited in what we can and can't use the water for.
    In the picture that I took Friday, we need--in the same 
area, the tribe uses the water to cleanse themselves before our 
traditional ceremony, and after. So in this case, we will 
probably have to go back up to the upstream users, and to try 
to get them, get permission from them to allow water to come 
through the area so that we can continue to do so.
    My time is up, and I would like to thank you and the 
Committee for allowing me to give you five minutes of my 
presentation. Thank you.
    [The prepared statement of Mr. Dorame follows:]

   Statement of The Honorable Charles J. Dorame, Chairman, Northern 
Pueblos Tributary Water Rights Association, and Former Governor, Pueblo 
                               of Tesuque

INTRODUCTION
    Good morning Chairwoman Napolitano and Ranking Member McClintock. 
Thank you for agreeing again this year to focus this Subcommittee's 
attention on the Aamodt Litigation Settlement Act (H.R. 3342), a 
comprehensive settlement of the Indian water rights claims of the 
Pueblos of Nambe, Pojoaque, San Ildefonso, and Tesuque (``the Four 
Pueblos''). I also want to thank the majority and minority Subcommittee 
staff who continue to demonstrate unparalleled excellence and 
professionalism in all of our dealings.
    The House version of the Aamodt Litigation Settlement Act was 
introduced on July 24, 2009, by our Congressman, The Honorable Ben Ray 
Lujan, and The Honorable Martin Heinrich. As you know, in May 2009 
Senators Jeff Bingaman and Tom Udall introduced the Senate version of 
this settlement bill (S.1105). As you also know, similar legislation 
was introduced and subject to legislative hearings in both the House 
and Senate in the 109th Congress.
    I want to thank Congressman Lujan for his leadership in working 
with the Four Pueblos and, indeed, with all of the settlement parties 
to address unresolved issues and produce consensus legislation that is 
supported by the Four Pueblos, the State of New Mexico, Santa Fe 
County, the City of Sante Fe, and individual water users.
INDIAN WATER SETTLEMENTS IN GENERAL
    Complex Indian water settlements do not happen in a vacuum, Madam 
Chairwoman, and the Aamodt Litigation Settlement Act is no exception. 
At the outset, I want to commend our Federal partners, the State of New 
Mexico, Santa Fe County, the City of Sante Fe, individual water users, 
and others for years of hard work and good faith negotiation that 
produced the settlement legislation that is before this Subcommittee.
    My name is Charlie Dorame and I am glad to be back before you to 
present testimony on this important legislation. I am the former 
Governor of the Pueblo of Tesuque and am now the Chairman of the 
Northern Pueblos Tributary Water Rights Association (``NPTWRA''). The 
NPTWRA is an association comprised of the Four Pueblos and dedicated to 
the pursuit of their comprehensive and equitable settlement of the 
Indian water and land claims.
    At stake in this proposed settlement bill are the water rights of 
these four distinct Pueblos--each with its own land base, economy, 
community, history, and vision of the future.
    Filed in 1966 by the State of New Mexico, the Aamodt litigation is 
one of the longest-running Indian water rights cases in the history of 
the United States. To give you some perspective on how long this case 
has drawn out, I was 17 years old when the case was filed and in the 
years since then I have watched as the case has gone from year to year, 
seemingly without end.
    Nevertheless, we are more optimistic than ever that, with the 
introduction of H.R. 3342, the Aamodt litigation is reaching its 
conclusion.
THE ROLE OF WATER IN PUEBLO LIFE
    Water is essential to our people for basic needs and our survival, 
but also for its sacred role in Pueblo culture. For example, at the 
Pueblo of Tesuque, we require that water from the Rio Tesuque be used 
during traditional ceremonies. Our ability to maintain and practice our 
traditional ways is dependent on a quantity of water flowing through 
our lands. The sensitivity and nature of our traditions prevents me 
from openly discussing how we use these water resources in ceremonial 
settings.
    About eight years ago, we were faced with a crisis when the creek 
went dry and we were forced to ask the upstream non-Indian users to 
refrain from using the water for at least a week so that we could have 
enough water flowing through our land during our ceremonies. 
Fortunately, they were kind enough to agree to our request. In some 
cases, we do not have the luxury of giving advance notice because the 
need for water may happen in an instant.
    I have lived on my reservation all my life and I have seen the Rio 
Tesuque go dry many times either before it reaches our village or 
immediately after it passes through our village.
    Water is also essential to our livelihood and our traditional 
methods of farming, which we have practiced for thousands of years. As 
we have done for generations, we have annual ditch cleanings performed 
by the men of our village so that water can be channeled from the creek 
to irrigate farm lands close to the village. This requires that enough 
water is flowing and gravity feed forces the water to our farm lands. 
We also have artesian wells that supplement water flow for traditional 
activities and farming. I have seen these wells go dry with obvious 
consequences for farmers and their families.
    As children growing up on our lands we knew where wells were 
located and in those days the wells had enough water to nourish us when 
we went exploring. Now we have to tell our children to carry water and 
not venture too far from home without water to drink.
    As you can well imagine, the lands of the Four Pueblos lose much of 
their cultural vitality as well as their economic benefit without 
enough water to make them viable.
BACKGROUND ON THE PROPOSED SETTLEMENT AND ITS TERMS
    In the Pojoaque River Basin (``the Basin''), a tributary of the Rio 
Grande in northern New Mexico, conflicts over scarce water have 
resulted in protracted Federal litigation which is approaching its 44th 
year. The Aamodt case was filed by the State of New Mexico against all 
water right claimants in the Basin to determine the nature and extent 
of their water rights. In January 2006, a comprehensive Settlement 
Agreement (``Settlement Agreement'') was reached between the following 
parties:
      The Pueblos of Nambe, Pojoaque, San Ildefonso, and 
Tesuque; and
      The State of New Mexico, Santa Fe County, and the City of 
Santa Fe.
    Upon enactment, H.R. 3342 will:
    (1)  Secure water to meet the current and future needs of the four 
Pueblos;
    (2)  Protect the long-standing water uses and resources that make 
the Basin unique;
    (3)  Preserve the centuries-old non-Pueblo irrigation in the Basin; 
and
    (4)  Provide water for current and future uses by all of the 
Basin's residents.
REGIONAL WATER SYSTEM IS THE CENTERPIECE OF THE AAMODT SETTLEMENT
    The centerpiece of the Settlement Agreement is a proposed Regional 
Water System (``RWS'') to supply Pueblo and non-Pueblo citizens in the 
Basin.
    The RWS will have the capacity to deliver up to 2,500 acre feet per 
year of water from the Rio Grande to the Four Pueblos.
    The RWS will also have the capacity to deliver 1,500 acre feet per 
year to the Santa Fe County Water Utility to serve future water users 
in the Basin, as well as to present domestic well owners who connect to 
the system. The source of the water has been identified with the 
assistance of the State of New Mexico, the County, the U.S. Department 
of the Interior, and the settling parties.
    The RWS's provision of water to non-Pueblo water users is important 
to the Pueblos because it will reduce stress on the groundwater 
resources of the Basin. Without the construction of the RWS and related 
systems, the litigation cannot be settled and water resources will 
continue to dwindle for all of the Basin users.
SETTLEMENT AGREEMENT TERMS AND PROJECT COSTS
    Unlike other settlements, the Settlement Agreement that would be 
ratified by H.R. 3342 fits squarely within the Criteria and Procedures 
for the Participation of the Federal Government in Negotiations for the 
Settlement of Indian Water Rights Claims, 55 F.R. 9223 (Mar. 12, 1990, 
``Criteria and Procedures'') used since 1990 by the United States to 
gauge the respective benefits and costs of any proposed settlement.
    While no proposed settlement is perfect in terms of meeting every 
aspect of the Criteria and Procedures, the Settlement Agreement before 
you is as close to a neat fit as is likely to come before the Congress.
    The settlement of the water rights claims of the Four Pueblos as 
reflected in H.R. 3342 satisfies the primary requirements and intent of 
the Criteria and Procedures as a necessary and worthy Federal 
investment. It will halt escalating Federal costs that result from 
inadequate, economically inefficient and outdated water infrastructure 
in the Basin. The settlement also will address long-term water planning 
and water administration needs in a desert environment where continued, 
uncontrolled groundwater mining by the non-Pueblo population would run 
counter to Federal interests.
    Resolving these problems, as proposed in H.R. 3342, while finally 
and fully quantifying the water rights of the Four Pueblos in this 
tributary of the Rio Grande and resolving one of the oldest pending 
Federal court cases in the country, is a sound and defensible use of 
Federal resources. H.R. 3342 will promote economic efficiency and 
tribal self-sufficiency going forward by establishing the RWS to supply 
much-needed water into a water-short basin. The RWS will honor the 
individual governmental authority of the five participating entities, 
the Four Pueblos and Santa Fe County, while providing for a unified and 
economically efficient approach to water supply.
    In addition, the Settlement Agreement satisfies the material 
conditions of the Criteria and Procedures because:
    1.  It will resolve the Pueblo claims with finality after 43 years, 
and will prevent another 40 years of litigation;
    2.  It ensures efficient conservation of scarce water resources;
    3.  It promotes long-term cooperation between the Pueblo and non-
Pueblo governments and communities;
    4.  The total cost of the settlement to all parties does not exceed 
the value of the existing claims;
    5.  The non-Federal cost share--at 42%--is significant; and
    6.  It promotes economic efficiency and tribal self-sufficiency.
    The Settlement Agreement resolves all outstanding water rights 
claims and achieves finality with regard to the claims of the Four 
Pueblos in the Basin. It also provides certainty in terms of water 
supply to the Four Pueblos and non-Pueblo communities.
    The Settlement Agreement establishes a process whereby Pueblo and 
non-Pueblo water rights will be administered post-settlement in a way 
that is conducive to long-term, regional harmony and cooperation.
    The RWS will allow for (1) an additional water supply for the 
Pueblos from outside the water-short basin, and (2) for the non-Pueblo 
water users to be served by a renewable surface supply in lieu of 
individual wells whose proliferation has impaired, and would continue 
to impair, the exercise of Pueblo water rights. The RWS will also 
promote cooperative conservation between all parties.
    The total project cost of the settlement is $286.2 million, which 
would be used to construct both the Pueblo and County combined water 
system and the county connections, to finance the Pueblo Water 
Acquisition Fund and the Pueblo Conservation Fund, and to create the 
Pueblo O.M.&R. Fund.
    The Federal investment in the Settlement Agreement is $169.3 
million, which will end continued Federal involvement in this 
litigation, ensure finality, provide certainty with regard to all 
claims, and promote tribal economic development and self-sufficiency.
    The State of New Mexico, Santa Fe County and the City of Santa Fe 
are prepared to contribute $117 million to the proposed settlement--
which represents a non-Federal cost share of 42%, a significant 
commitment by the settlement parties other than the U.S.
    In last year's hearing, the United States challenged the validity 
of the cost estimates contained in the settlement legislation. In 2002, 
the Bureau of Reclamation (``BoR'') provided funding to the NPTWRA 
through a Pub.L. 93-638 contract in order to have significant amounts 
of engineering work done in connection with the settlement study 
regarding the RWS for this settlement that the BoR published in 2004.
    After the New Mexico congressional delegation asked for more 
detailed cost estimates, the BoR provided additional funding through 
the 638 contract to the NPTWRA which resulted in the Final Engineering 
Report dated September 2008 prepared by HKM Engineering, Inc. (``HKM 
Engineering''). The costs in that report are best estimates as of 
October 2006, and naturally, the settlement legislation calls for those 
costs to be indexed by providing that annual adjustments to the 
construction costs for the regional water system be made ``to account 
for increases in construction costs since October 1, 2006, as 
determined using applicable engineering cost indices.'' The BoR 
maintains such indices.
    HKM Engineering has substantial experience in planning, designing, 
cost estimating, and constructing regional water systems planned or 
under construction at Federal expense in several states. While the HKM 
Engineering cost summary for the RWS includes line items for ``unlisted 
items (variable), contract add-ons at 17.5%, contingency at 20%, and 
non-contract costs at 29.5%-31%,'' these contingencies are reasonable 
at this stage of planning. We are not at the final design stage yet 
and, as the U.S. knows, this legislation needs to become law in order 
for that final design to occur.
    The Aamodt settlement parties, and especially the Four Pueblos in 
the NPTWRA, think we have done the best we can at this point by having 
a reputable engineering firm give its best estimate for constructing 
the RWS, including significant contingencies in the budget.
    The reality is that the cost for the Aamodt settlement contained in 
H.R. 3342 can only be expected to increase in the future.
U.S. CONCERNS OVER LIABILITY ARE RESOLVED
    Since the time this Subcommittee held its hearing in September 
2008, the Four Pueblos and the Departments of Interior and Justice have 
worked to resolve concerns regarding waiver of legal claims and 
liability contained in H.R. 3342.
    The Four Pueblos and these Federal departments have been engaged in 
substantive discussions on these issues for many years and I am happy 
to report to the Subcommittee that we have negotiated our differences 
and agreed to revised waiver and liability language as part of the 
settlement legislation.
    H.R. 3342 provides for comprehensive waivers and releases with 
regards to claims against the Federal government as to any future 
liability relating to water rights claims by the Four Pueblos in the 
Basin. The waivers and releases contained in the settlement legislation 
stem from waivers negotiated in the context of court-ordered mediations 
over the course of six years.
CONCLUSION
    Madam Chairwoman, the United States' historic failure to protect 
the Pueblos' lands and water rights adequately for more than 150 years 
has led directly to today's conflict over scarce water resources. Once 
enacted, H.R. 3342 will conserve the shared resource responsibly, bring 
tangible water to Pueblo and non-Pueblo citizens alike, and will ensure 
a level of certainty for decades in the Pojoaque Basin.
    Most important to the Four Pueblos, enactment of this settlement 
legislation will fulfill the United States trust responsibility and 
ensure that our children, and their children, can continue our 
traditions for generations to come.
    Chairwoman Napolitano and Ranking Member McClintock, this concludes 
my testimony and I am happy to answer any questions you might have at 
this time.
                                 ______
                                 
    Mrs. Napolitano. Thank you very much, Chief. And right now, 
if you don't mind, we will recess so we can go vote. We have 
less than four minutes to get to the Capitol to vote.
    We will recess and reconvene as soon as we finish our 
votes.
    [Recess.]
    Mrs. Napolitano. This hearing is reconvened. We will begin 
where we left off. We will begin with Mr. DL Sanders, the Chief 
General Counsel, Office of the State Engineer in Santa Fe, New 
Mexico, on both H.R. 3254 and H.R. 3342.
    Welcome, and you are on, sir.

  STATEMENT OF DL SANDERS, CHIEF COUNSEL, OFFICE OF THE STATE 
                 ENGINEER, SANTA FE, NEW MEXICO

    Mr. Sanders. Good afternoon, Madame Chairman. Thank you for 
inviting me. Rep. Lujan, thank you for extending the 
invitation.
    I am DL Sanders, Chief Counsel, New Mexico State Engineer. 
In that capacity I also serve as Director of Litigation and 
Adjudication concerning all water right matters for the State 
of New Mexico. I have done that for 20 years.
    The state's written testimony has been submitted by the 
State Engineer D'Antonio for the State of New Mexico. It 
strongly supports both of these settlements, as does Gov. 
Richardson, Governor of the State of New Mexico.
    I offer a summary of our testimony to support both the Taos 
and Aamodt Settlement Acts of 2009.
    The goal and purpose of these two acts, of these two 
settlements, is to provide sufficient water to support 
permanent homelands for these Pueblos, and to not do so at the 
expense of other existing water rights. Both of these 
settlements have achieved this. And they have achieved this by 
changing points of diversion, diversion practices, and by 
developing additional and alternative water supplies. Those do 
cost money, and they are necessary in the environment of the 
arid Southwest.
    They provide an equitable outcome for all interested 
parties by promoting long-term regional harmony, cooperation 
among the interested parties, preservation of the existing uses 
of water, and respect for the sovereignty of the Pueblos, the 
state, and the United States.
    New Mexico is committed to its Indian water right 
settlements. In fact, we have an Indian water rights settlement 
fund to pay for the non-Indian portions of these funds, of 
these settlements.
    We have appropriated $10 million to the fund. And I would 
like to thank Speaker Lujan and Governor Richardson for 
following through on that funding, in order to demonstrate our 
commitment to seeing these settlements through.
    Again, these comments relate to both settlements, because 
to me they achieve the very same purposes.
    Both of these settlements will moot out the legal 
challenges that still confront the parties after 40 years of 
litigation, because of the following factual situation.
    The litigation involves water rights that I think are safe 
to say both Pueblo and non-Pueblo, that are the oldest 
recognized in the United States. The priority dates for the 
Pueblos are what we call time immemorial, and the priority 
dates for the Acequias that are involved are from the late 
1600s and early 1700s.
    The Pueblo water rights are virtually unique to New Mexico. 
The nature of these rights, therefore, involve many issues that 
are questions of first impression.
    Significant among them is their right to use groundwater. 
These settlements avoid the necessity of having to address that 
issue by our compromises.
    New Mexico is a high-elevation desert, and has very limited 
reliable, renewable, available water supplies. The finally 
adjudicated water rights in each of these adjudications are 
certain to exceed the seasonal yield of these highly variable 
stream systems.
    Without these settlements, priority calls will be the rule, 
but only after additional years of litigation, which has been 
the practice and the history in the State of New Mexico. These 
continued years of uncertainty and litigation is avoided 
through these settlements, and a priority call will be the 
exception rather than the rule.
    In closing, the parties reached these settlements without 
meaningful input from the United States. The main reason we 
believe these settlements meet the criteria and procedures for 
Indian water right settlements is due to the efforts of Mike 
Connor to help us understand what this Congress would find 
acceptable.
    We feel that although the Administration might not yet be 
fully satisfied with these settlements, we firmly believe that 
these settlements, like the laws in Congress, represent our 
best and exhaustive effort to reach compromises that the 
parties, Congress, the Administration all could be proud of.
    I want to thank you for your time, especially my 
Congressman, Rep. Lujan. And I express great thanks to his 
family for having supported us through the last 20 years of 
litigation, and through these settlements. And I want to again 
thank the members of this Committee for bringing us both to the 
Committee, and having the hearing today.
    And with that, I will stand for any questions. Thank you.
    [The prepared statements of John R. D'Antonio, Jr., 
follow:]

 Statement of John R. D'Antonio, Jr., P.E., New Mexico State Engineer, 
          Interstate Stream Commission Secretary, on H.R. 3254

    Chairwoman Napolitano and Members of the Committee:
    Thank you for the opportunity to present the views of my office on 
H.R. 3254, the ``Taos Pueblo Indian Water Rights Settlement Act,'' 
which would implement the settlement of Taos Pueblo's water rights 
claims presented in the Abeyta lawsuit. I share with Governor 
Richardson the conclusion that passage of this bill would produce a 
fair and long-overdue resolution of the water rights claims of this New 
Mexico Pueblo and it is highly deserving of Congressional support. I 
wish here to set forth for you some of the main reasons for that 
conclusion and then describe some of the substantial changes the 
Settlement Parties have agreed to make to their settlement, and this 
implementing legislation, in order to address concerns expressed by the 
Department of Justice and Department of the Interior. I hope that these 
comments will provide the Committee with a fuller understanding of the 
substance and significance of this settlement and why it merits your 
support.
Why the State of New Mexico Strongly Supports this Legislation
    First, all New Mexicans, not just these litigants, have suffered 
the costs of the protracted litigation over the water rights claims of 
these four Pueblos. The Abeyta suit was filed over 43 years ago, and it 
has taken many years of ultimately successful negotiation to reach a 
settlement agreement. Litigation and negotiation costs, direct and 
indirect, particularly for the State and the United States, have been 
substantial. The communities have borne the heavy costs of continued 
strife and conflict over water between the Pueblo & non-Pueblos, senior 
and junior users, in the highly polarizing environment of litigation. 
The region has incurred the economic costs of lost opportunities for 
economic development, the inability to grow businesses or communities 
when the supply of the most fundamental resource--waters--is uncertain. 
The settlement reached by the parties, as implemented by H.R. 3254, 
will directly address all of these issues, by ending the unending 
stream of litigation costs and instead investing in this settlement, 
which will finally achieve judicial determinations of Pueblo water 
rights and lay foundations for Pueblo economic development and self-
sufficiency.
    Second, the proposed settlement is fair. It recognizes large first-
priority water rights in the Pueblos commensurate with the acreage 
historically irrigated by them: depletions of more than 8,000 acre-feet 
annually for Taos Pueblo. But this settlement also contains its own 
unique locally-suited mechanisms whereby centuries-old non-Indian uses 
will be allowed to continue as well as the Pueblo uses. In addition, 
water for Pueblo economic development will be imported or purchased--
about 2,300 acre-feet per year--with the last remaining uncontracted 
water from New Mexico's San Juan Chama Project (SJCP), developed by the 
United States, going to its Indian beneficiaries. Finally, 
infrastructure locally appropriate to this settlement, with substantial 
state and local cost share, will be provided to meet specific Pueblo 
health, safety and economic development needs.
The Settlement Parties' Actions to Address the United States' Expressed 
        Concerns
    H.R. 3254 is identical, in many of its substantive settlement 
terms, to legislation introduced in the second session of the 110th 
Congress, H.R. 6768 in the House and its companion bill in the Senate, 
S. 3381. H.R. 6768 and S. 3381 combined both the Taos Pueblo Indian 
Water Rights Settlement and the Aamodt Litigation Settlement in two 
Titles in each bill and they were the subject of hearings before this 
Committee and the Senate Indian Affairs Committee--on September 25, 
2008 before this Committee and on September 11,2008 before the Senate 
Indian Affairs Committee.
    The legislation before you, H.R. 3254, does differ from the 
previous legislation in some ways, primarily as a result of extensive 
discussions between the Settlement Parties and representatives of the 
Departments of Interior and Justice in order to accommodate those 
Departments' requests for changes to better clarify the obligations of 
the United States and to better protect its financial, trusteeship and 
sovereign interests. I would like to show you, with just a few 
examples, the extent to which the state and the other Settlement 
Parties have done that.
    On September 11, 2008, before the Senate Indian Affairs Committee, 
Mr. Michael Bogert, then Chairman of the Working Group on Indian Water 
Rights Settlements, provided the Bush Administration's views on S.3381 
from the Department of the Interior, and by letter of September 26, 
2008 to this Committee and the Senate Indian Affairs Committee, Mr. 
Keith B. Nelson, Principal Deputy Assistant Attorney General, provided 
the same on behalf of the Department of Justice.
    Mr. Bogert and Mr. Nelson repeatedly emphasized that the waivers 
contained in S. 3381 and H.R. 6768 did not adequately protect the 
United States from future liability, ``including breach of trust 
claims.'' In Aamodt, Mr. Nelson noted that there was ``no clear waiver 
of claims relating to damages to land and other resources caused by 
past loss of water and off-reservation water rights.'' He recommended 
that, in light of the previous waiver-related litigation problems the 
United States had experienced, the parties in their legislative 
drafting ``should bring to bear here the lessons learned.''
    I responded at that time that the Settlement Parties had sought the 
active participation of the United States on this and other questions 
literally for years before these settlements were finalized, but had 
received no substantive participation or guidance, and that, in 
fairness, the time for consideration of the proposed United States' 
proposals regarding waivers was during settlement negotiations, not 
years after the settlement agreement was finalized. Nevertheless, the 
Settlement Parties recognize the substantial interest of the United 
States in these provisions, and we have all made great efforts to 
accommodate them. Specifically, the revised waiver provisions in both 
H.R. 3254 and H.R. 3342, the ``Aamodt Litigation Settlement Act,'' 
presently also pending before this Committee, now very largely track 
the Department of Justice's ``model waivers,'' which we understand is 
exactly implementing Mr. Nelson's belief that the legislation ``should 
bring to bear here the lessons learned.'' That is not to say the waiver 
provisions are identical in the two bills, because the specifics of 
each settlement are to some extent reflected there. However, both 
bills' waiver provisions certainly contain the ``clear waiver of claims 
relating to damages to land and other resources caused by past loss of 
water and off-reservation water rights'' that the Department of 
Justice's letter said was prominently missing in H.R. 6768. It is my 
belief that the Settlement Parties have gone to extraordinary lengths, 
substantially modifying the terms of their agreement, to accommodate 
the United States' demands regarding these waiver provisions, but I am 
also confident that the result we have recently arrived at will fully 
achieve the expressed goals of clarifying and limiting the obligations 
of the United States, protecting it from future liability, and making 
clear that its interests and powers are properly recognized and 
preserved.
    Mr. Bogert also argued that with respect to the Taos Pueblo 
settlement, the non-Pueblos would disproportionately benefit from the 
planned Mutual Benefit Projects, for which construction cost are to be 
paid 75% by the United States and 25% by the state. Actually, the Bush 
Administration fundamentally misapprehended the nature of the Mutual 
Benefit Projects. In the case of the replacement wells project, for 
example, the United States appears to believe that the primary 
beneficiaries of the replacement wells to be provided for the Town of 
Taos and the El Prado Water and Sanitation District are the Town and 
District, but in fact the true beneficiary is Taos Pueblo, whose 
Buffalo Pasture wetlands will be protected by moving this municipal 
pumping miles away. The United States may also think that the Town and 
District are getting the primary benefits because it imagines that a 
judicially recognized water right for the Pueblo would automatically 
force shutdown of these municipal suppliers to protect these wetlands. 
More likely is that years, and perhaps decades of litigation are being 
avoided by moving these wells. As noted, the State has agreed to pay 
25% of the costs of this project designed to benefit the Pueblo's 
Buffalo Pasture. The United States also seems to miss the fact that 
another significant project, the mitigation well system, is for all 
groundwater users, including the Pueblo. The mitigation well system 
provides a technological solution whereby all groundwater developers, 
one of which is the Pueblo, can make stream offsets, required by the 
Settlement Agreement. on the Rio Grande. This system will allow the 
Pueblo to make real and flexible use of its water rights.
    Another Bush Administration claim was that the Taos Pueblo 
settlement lacks finality regarding decree enforcement. The short 
answer to this objection is that the settlement and legislation 
explicitly preserve the status quo in this respect and that the 
settlement relies on a highly detailed set of provisions, supported by 
an agreed hydrological model, to reduce water administration disputes 
to an absolute minimum. Those provisions cover in detail such subjects 
as Pueblo water court procedures, Pueblo water rights transfers, Pueblo 
depletion offset procedures, and loss of forbearance by non-Pueblo 
rights so that Pueblo rights can be exercised in their place. This is 
the practical Taos settlement approach to administration, designed to 
work even if the all the parties cannot reach agreement on the arcane 
subject of judicial post-decree enforcement. The United States appeared 
to be demanding that all others must accept its position regarding this 
fundamentally important and contentious issue of water rights 
administration, and that no settlement should go forward that does not 
do so. The State disagrees with that premise and that conclusion, which 
actually shows the wisdom of approach of the present bill which 
explicitly does not adopt any position or modify the status quo in any 
way. A meritorious Indian water rights settlement should not be 
rejected simply because the parties could not agree with the United 
States' position on a difficult aspect of post-decree water rights 
administration. Each settlement is inevitably unique: the Taos 
settlement parties, including the state, have judged that the benefits 
of their settlement far outweigh the costs and compromises that all 
have undertaken. The Taos settlement does, as noted above, contain 
perhaps the most important practical element for administration--an 
agreed basin hydrological model--which is likely to make a far larger 
contribution to solving real-life disputes than pursuing an agreement 
delineating which court or courts might have jurisdiction to hear what 
sorts of claims between disputants who are parties to the Taos 
settlement agreement. With that agreed model, we judge that the Taos 
settlement approach is likely, through its use as provided in the 
settlement agreement, to substantially reduce the risk of litigation 
over administration of basin water rights.
    The Bush Administration also recommended that Congress more 
precisely clarify the United States' responsibility regarding delivery 
of the SJCP water contemplated for use in the two settlements, noting 
that the concern arose from the fact that this water supply is to be 
held in trust by the United States. The Settlement Parties agreed that 
this matter should be clarified and have directly addressed this issue 
by providing, in Sect. 103(d) of H.R. 3342 (and in Sec. 9(b)(3) of H.R. 
3254) that these water supplies shall be subject to the San Juan-Chama 
Project Act (Public Law 87-483, 764 Stat. 97), and that ``no preference 
shall be provided to the Pueblo(s)...with regard to the delivery or 
distribution of San Juan-Chama Project water or the management or 
operation of the San Juan-Chama Project.'' We believe that this 
provision definitively answers any question of possible Indian 
preference and provides the certainty that the United States was 
seeking.
CONCLUSION
    In conclusion, the parties understand that this settlement commits 
the United States and the State of New Mexico to significant financial 
obligations. The Bush Administration claimed that it cost ``too much,'' 
with arguments based on Interior's Criteria and Procedures (``C&Ps''). 
While recognizing that more factors than the calculated legal exposure 
to the United States are to be considered under the C&Ps, the testimony 
from the Bush Administration's failed to acknowledge that it had 
repeatedly refused to consider the value of or assign any value to 
fulfilling the prominent C&Ps ``goal of long-term harmony and 
cooperation among all parties.'' That is a significant omission, 
because exactly that ``long-term harmony and cooperation among all 
parties'' is what these settlement parties have gone to extraordinary 
lengths to achieve, and it is from all perspectives--personal, local, 
and regional--one of the biggest goals and benefits of this settlement. 
As I noted, this settlement creates complex and tightly interwoven 
water use, sharing and administration agreements among the parties. 
These parties have truly committed themselves to a water future based 
on harmony and cooperation and any fair evaluation of the cost of this 
settlement should not neglect this factor.
    At this point, we have successfully accommodated the vast majority 
of the United States' demands and those results are reflected in the 
language of the bill before you. Believing that we have in good faith 
fairly addressed all the non-monetary concerns raised by the United 
States insofar as possible given the structure of the settlement and 
that it fulfills the C&Ps ``goal of long-term harmony and cooperation 
among all parties,'' I therefore strongly support and recommend passage 
of H.R. 3254 in its present form, without delay.
Closing Comment
    In the vein of the ``lessons learned'' argument favored by the Bush 
Administration to defend its efforts renegotiate the terms of certain 
settlements before Congress, I offer, with all due respect, a lesson 
that I have learned.
    The state of New Mexico has learned that negotiations to settle the 
water rights claims of an Indian Tribe or Pueblo are limited to the 
participation of the United States through the Department of Justice 
with respect to any term implicating its sovereignty or responsibility 
to protect the interests of the United States or Pueblo.
    During the years of negotiations there was frustratingly little 
participation or guidance from the Bush Administration with respect to 
the interests of the United States, despite oft-repeated requests. The 
parties, therefore, were left to reach agreement without the 
participation of the United States.
    Because the United States did not identify the terms to which it 
objected with any specificity to the parties until they presented New 
Mexico's congressional delegation with the final settlements and asked 
that legislation be introduced, it has been very difficult for the 
parties to entertain United States' demands for legislative changes 
that revise the fundamental bargain of the settlement and fairly should 
have been raised years ago.
    Even as the Bush Administration was testifying its objections to 
the Aamodt and Taos settlements in the fall of 2008, it emphasized the 
desire of the United States to work with the parties and Congress to 
develop settlements the Bush Administration could support.
    While Department of Interior representation at negotiation meetings 
and communication with the parties somewhat improved at the end of the 
Bush Administration, that improvement did not occur until the Aamodt 
and Taos Pueblo settlements agreements were fully negotiated and signed 
by all the parties, including all the governmental parties except the 
United States.
    In just these few short months of the Obama Administration there 
seems to be a genuine effort on the part of the United States to 
heighten the level of its participation over that of the previous 
administration. It is my early impression that the United States' being 
an active negotiating party and elucidating its positions, even if they 
cannot be accepted by another party, promotes informed decision-making, 
allows the parties to develop trust in the United States, and in the 
end requires all parties to recognize and consider the interests of the 
United States. This is merely my observation and having served as State 
Engineer for the Administration of Bill Richardson, a Democrat, and as 
Secretary of the Environment Department for the Administration of Gary 
Johnson, a Republican, I understand that reasonable people can adopt 
reasoned policies 180 degrees apart.
    That said, there are six general stream adjudications pending in 
the Federal District Court for New Mexico and two more in state courts, 
involving the water rights claims of eight Pueblos and the Navajo 
Nation. Excluding the Aamodt and Taos Pueblo settlements, for which 
implementing legislation is pending before this Committee, and the 
Navajo Nation settlement, for which implementing legislation was 
recently passed by Congress, there are still pending five adjudications 
with Pueblo claims to first-priority water rights exceeding 100,000 
acre-feet of depletion per year. Further, there is at present no 
adjudication action pending in the Middle Rio Grande, which will 
involve the claims of six more Pueblos. Litigation of Pueblo claims has 
proven to be resource- and cost-intensive for all parties, with a very 
high level of professional and technical expertise required. It is 
likely that the parties will agree to pursue settlement negotiations 
for those claims for which they agree that there is sufficient 
historical basis to support a claim. Therefore, I encourage the Obama 
Administration to maintain, if not increase, its current level of 
participation in negotiations, rather than sit and watch the parties 
reach a settlement and only then voice its positions and objections as 
was the United States' practice under the Bush Administration.
    Again, thank you for this opportunity to present my views and 
please enact this Act authorizing the Taos Pueblo water rights 
settlement with all due speed.
                                 ______
                                 

 Statement of John R. D'Antonio, Jr., P.E., New Mexico State Engineer, 
          Interstate Stream Commission Secretary, on H.R. 3342

    Chairwoman Napolitano and Members of the Committee:
    Thank you for the opportunity to present the views of my office on 
H.R. 3342, the ``Aamodt Litigation Settlement Act.'' I share with 
Governor Richardson the conclusion that passage of this bill would 
produce a fair and long-overdue resolution of the water rights claims 
of four New Mexico Pueblos and it is highly deserving of Congressional 
support. I wish here to set forth for you some of the main reasons for 
that conclusion and then describe some of the substantial changes the 
Settlement Parties have agreed to make to their settlement, and this 
implementing legislation, in order to address concerns expressed by the 
Department of Justice and Department of the Interior. I hope that these 
comments will provide the Committee with a fuller understanding of the 
substance and significance of this settlement and why it merits your 
support.
Why the State of New Mexico Strongly Supports this Legislation
    First, all New Mexicans, not just these litigants, have suffered 
the costs of the protracted litigation over the water rights claims of 
these four Pueblos. The Aamodt suit was filed over 43 years ago, with 
active litigation for the first thirty-three years, followed six years 
of ultimately successful negotiation to reach a settlement agreement. 
Litigation costs, direct and indirect, particularly for the State and 
the United States, have been enormous. The communities have borne the 
heavy costs of continued strife and conflict over water between Pueblos 
& non-Pueblos, senior and junior users, in the highly polarizing 
environment of litigation. The region has incurred the economic costs 
of lost opportunities for economic development, the inability to grow 
businesses or communities when the supply of the most fundamental 
resource--waters--is uncertain. The settlement reached by the parties, 
as implemented by H.R. 3342, will directly address all of these issues, 
by ending the unending stream of litigation costs and instead investing 
in this settlement, which will finally achieve judicial determinations 
of Pueblo water rights and lay foundations for Pueblo economic 
development and self-sufficiency.
    Second, the proposed settlement is fair. It recognizes large first-
priority water rights in the Pueblos commensurate with the acreage 
historically irrigated by them: depletions of more than 3,600 acre-feet 
annually for the Aamodt Pueblos. But this settlement also contains its 
own unique locally-suited mechanisms whereby centuries-old non-Indian 
uses will be allowed to continue as well as the Pueblo uses. In 
addition, water for Pueblo economic development will be imported or 
purchased--about 2,300 acre-feet per year--with the last remaining 
uncontracted water from New Mexico's San Juan Chama Project (SJCP), 
developed by the United States, going to its Indian beneficiaries. 
Finally, infrastructure locally appropriate to this settlement, with 
substantial state and local cost share, will be provided to meet 
specific Pueblo health, safety and economic development needs.
The Settlement Parties' Actions to Address the United States' Expressed 
        Concerns
    H.R. 3342 is identical, in many of its substantive settlement 
terms, to legislation introduced in the second session of the 110th 
Congress, H.R. 6768 in the House and its companion bill in the Senate, 
S. 3381. H.R. 6768 and S. 3381 combined both the Taos Pueblo Indian 
Water Rights Settlement and the Aamodt Litigation Settlement in two 
Titles in each bill and they were the subject of hearings before this 
Committee and the Senate Indian Affairs Committee--on September 25, 
2008 before this Committee and on September 11, 2008 before the Senate 
Indian Affairs Committee.
    The legislation before you, H.R. 3342, does differ from the 
previous legislation in some ways, primarily as a result of extensive 
discussions between the Settlement Parties and representatives of the 
Departments of Interior and Justice in order to accommodate those 
Departments' requests for changes to better clarify the obligations of 
the United States and to better protect its financial, trusteeship and 
sovereign interests. I would like to show you, with just a few 
examples, the extent to which the state and the other Settlement 
Parties have done that.
    On September 11, 2008, before the Senate Indian Affairs Committee, 
Mr. Michael Bogert, then Chairman of the Working Group on Indian Water 
Rights Settlements, provided the Bush Administration's views on S.3381 
from the Department of the Interior, and by letter of September 26, 
2008 to this Committee and the Senate Indian Affairs Committee, Mr. 
Keith B. Nelson, Principal Deputy Assistant Attorney General, provided 
the same on behalf of the Department of Justice.
    Mr. Bogert and Mr. Nelson repeatedly emphasized that the waivers 
contained in S. 3381 and H.R. 6768 did not adequately protect the 
United States from future liability, ``including breach of trust 
claims.'' In Aamodt, Mr. Nelson noted that there was ``no clear waiver 
of claims relating to damages to land and other resources caused by 
past loss of water and off-reservation water rights.'' He recommended 
that, in light of the previous waiver-related litigation problems the 
United States had experienced, the parties in their legislative 
drafting ``should bring to bear here the lessons learned.''
    I responded at that time that the Settlement Parties had sought the 
active participation of the United States on this and other questions 
literally for years before these settlements were finalized, but had 
received no substantive participation or guidance, and that, in 
fairness, the time for consideration of the proposed United States' 
proposals regarding waivers was during settlement negotiations, not 
years after the settlement agreement was finalized. Nevertheless, the 
Settlement Parties recognize the substantial interest of the United 
States in these provisions, and we have all made great efforts to 
accommodate them. Specifically, the revised waiver provisions in both 
H.R. 3342 and H.R. 3254, the ``Taos Pueblo Indian Water Rights 
Settlement Act,'' presently also pending before this Committee, now 
very largely track the Department of Justice's ``model waivers,'' which 
we understand is exactly implementing Mr. Nelson's belief that the 
legislation ``should bring to bear here the lessons learned.'' That is 
not to say the waiver provisions are identical in the two bills, 
because the specifics of each settlement are to some extent reflected 
there. However, both bills' waiver provisions certainly contain the 
``clear waiver of claims relating to damages to land and other 
resources caused by past loss of water and off-reservation water 
rights'' that the Department of Justice's letter said was prominently 
missing in H.R. 6768. It is my belief that the Settlement Parties have 
gone to extraordinary lengths, substantially modifying the terms of 
their agreement, to accommodate the United States' demands regarding 
these waiver provisions, but I am also confident that the result we 
have recently arrived at will fully achieve the expressed goals of 
clarifying and limiting the obligations of the United States, 
protecting it from future liability, and making clear that its 
interests and powers are properly recognized and preserved.
    In addition to objecting to the terms of the waivers in H.R. 6768, 
both Interior and Justice Department representatives expressed concern 
over language in the Aamodt title of the bill which they believed would 
require the United States to ``acquire'' a specified quantity of water 
rights for the Pueblos irrespective of cost or difficulty and to 
``obtain'' a New Mexico State Engineer permit to move the water rights 
to the Rio Grande point of diversion for the Regional Water System. The 
Settlement Parties have responded to that concern by agreeing that the 
obligations of the United States shall be limited to acquiring the 
identified water rights and no more, that the cost will be as specified 
and no more, and that the Secretary need only ``seek'' to obtain the 
necessary permits.
    The Bush Administration also recommended that Congress more 
precisely clarify the United States' responsibility regarding delivery 
of the SJCP water contemplated for use in the two settlements, noting 
that the concern arose from the fact that this water supply is to be 
held in trust by the United States. The Settlement Parties agreed that 
this matter should be clarified and have directly addressed this issue 
by providing, in Sect. 103(d) of H.R. 3342 (and in Sec. 9(b)(3) of H.R. 
3254) that these water supplies shall be subject to the San Juan-Chama 
Project Act (Public Law 87-483, 764 Stat. 97), and that ``no preference 
shall be provided to the Pueblo(s)...with regard to the delivery or 
distribution of San Juan-Chama Project water or the management or 
operation of the San Juan-Chama Project.'' We believe that this 
provision definitively answers any question of possible Indian 
preference and provides the certainty that the United States was 
seeking.
Remaining Issues
    As of today, the settlement parties have agreed to every one of the 
United States' requested changes to H.R. 3354 except one--a 
modification of Sects. 203(e) and (f) to substitute a written 
Secretarial determination of ``substantial completion'' of the Regional 
Water System, with limited review under the Administrative Procedures 
Act, for the Decree Court process contemplated by the Settlement 
Agreement and current legislative draft. The state is willing to 
continue discussions with the United States on this issue, but points 
out that it, and the other settlement parties, are still waiting to see 
some indication of support from the United States for this settlement. 
Compromise is a two-way street.
CONCLUSION
    In conclusion, the parties understand that this settlement commits 
the United States and the State of New Mexico to significant financial 
obligations. The Bush Administration claimed that it cost ``too much,'' 
with arguments based on Interior's Criteria and Procedures (``C&Ps''). 
While recognizing that more factors than the calculated legal exposure 
to the United States are to be considered under the C&Ps, the testimony 
from the Bush Administration's failed to acknowledge that it had 
repeatedly refused to consider the value of or assign any value to 
fulfilling the prominent C&Ps ``goal of long-term harmony and 
cooperation among all parties.'' That is a significant omission, 
because exactly that ``long-term harmony and cooperation among all 
parties'' is what these settlement parties have gone to extraordinary 
lengths to achieve, and it is from all perspectives--personal, local, 
and regional--one of the biggest goals and benefits of this settlement. 
This settlement creates complex and tightly interwoven water use, 
sharing and administration agreements among the parties. These parties 
have truly committed themselves to a water future based on harmony and 
cooperation and any fair evaluation of the cost of this settlement 
should not neglect this factor.
    At this point, we have successfully accommodated the vast majority 
of the United States' demands and those results are reflected in the 
language of the bill before you, as well as the very recent agreements 
to modify that language to accommodate, even at this late time, 
absolutely as many as possible of the United States' requests. 
Believing that we have in good faith fairly addressed all the non-
monetary concerns raised by the United States insofar as possible given 
the structure of the settlement and that it fulfills the C&Ps ``goal of 
long-term harmony and cooperation among all parties,'' I therefore 
strongly support and recommend passage of H.R. 3342 in its present 
form, without delay.
Closing Comment
    In the vein of the ``lessons learned'' argument favored by the Bush 
Administration to defend its efforts renegotiate the terms of certain 
settlements before Congress, I offer, with all due respect, a lesson 
that I have learned.
    The state of New Mexico has learned that negotiations to settle the 
water rights claims of an Indian Tribe or Pueblo are limited to the 
participation of the United States through the Department of Justice 
with respect to any term implicating its sovereignty or responsibility 
to protect the interests of the United States or Pueblo.
    During the years of negotiations there was frustratingly little 
participation or guidance from the Bush Administration with respect to 
the interests of the United States, despite oft-repeated requests. The 
parties, therefore, were left to reach agreement without the 
participation of the United States.
    Upon the successful negotiation of their settlement agreement, the 
parties drafted legislation that would implement the terms of that 
agreement. However, because the United States did not identify the 
legislative provisions to which it objected with any specificity to the 
parties until after they presented New Mexico's congressional 
delegation with the final settlements and asked that legislation be 
introduced, it has been very difficult for the parties to entertain 
United States' demands for legislative changes that revise the 
fundamental bargain of the settlement and fairly should have been 
raised years ago.
    Even as the Bush Administration was testifying its objections to 
the Aamodt and Taos settlements in the fall of 2008, it emphasized the 
desire of the United States to work with the parties and Congress to 
develop settlements the Bush Administration could support.
    While Department of Interior representation at negotiation meetings 
and communication with the parties somewhat improved at the end of the 
Bush Administration, that improvement did not occur until the Aamodt 
and Taos Pueblo settlements agreements were fully negotiated and signed 
by all the parties, including all the governmental parties except the 
United States.
    In just these few short months of the Obama Administration there 
seems to be a genuine effort on the part of the United States to 
heighten the level of its participation over that of the previous 
administration. It is my early impression that the United States' being 
an active negotiating party and elucidating its positions, even if they 
cannot be accepted by another party, promotes informed decision-making, 
allows the parties to develop trust in the United States, and in the 
end requires all parties to recognize and consider the interests of the 
United States. This is merely my observation and having served as State 
Engineer for the Administration of Bill Richardson, a Democrat, and as 
Secretary of the Environment Department for the Administration of Gary 
Johnson, a Republican, I understand that reasonable people can adopt 
reasoned policies 180 degrees apart.
    That said, there are six general stream adjudications pending in 
the Federal District Court for New Mexico and two more in state court, 
involving the water rights claims of eight Pueblos and the Navajo 
Nation. Excluding the Aamodt and Taos Pueblo settlements, for which 
implementing legislation is pending before this Committee, and the 
Navajo Nation settlement, for which implementing legislation was 
recently passed by Congress, there are still pending five adjudications 
with Pueblo claims to first-priority water rights exceeding 100,000 
acre-feet of depletion per year. Further, there is at present no 
adjudication action pending in the Middle Rio Grande, which will 
involve the claims of six more Pueblos. Litigation of Pueblo claims has 
proven to be resource- and cost-intensive for all parties, with a very 
high level of professional and technical expertise required. It is 
likely that the parties will agree to pursue settlement negotiations 
for those claims for which they agree that there is sufficient 
historical basis to support a claim. Therefore, I encourage the Obama 
Administration to maintain, if not increase, its current level of 
participation in negotiations, rather than sit and watch the parties 
reach a settlement and only then voice its positions and objections as 
was the United States' practice under the Bush Administration.
    Again, thank you for this opportunity to present my views and 
please enact this Act authorizing the Aamodt settlement with all due 
speed.
                                 ______
                                 
    Mrs. Napolitano. Thank you for your testimony. I much 
appreciate it.
    And we will now turn to Mr. Palemon Martinez, President of 
the Taos Valley Acequia Association, TVAA, Taos, New Mexico.

STATEMENT OF PALEMON A. MARTINEZ, PRESIDENT OF THE TAOS VALLEY 
             ACEQUIA ASSOCIATION, TAOS, NEW MEXICO

    Mr. Martinez. Chairwoman Napolitano, members of the 
Committee, Congressman Lujan, we appreciate this opportunity.
    I speak to you on behalf of the Taos Valley Acequia 
Association and its 55-member Acequias. We urge your favorable 
action on H.R. 3254, the Taos Pueblo Indian Water Rights 
Settlement Act.
    We also have Bennie Mondragon, Vice Chairman of TVAA, and 
our legal counsel, Fred Walsh, with me.
    The TVAA and Acequias are parties to the settlement 
agreement of Taos Pueblo. Acequias are also known as community 
ditch associations. They have existed in the Taos Valley North 
Central New Mexico since the area was settled by Spanish 
settlers over 400 years ago.
    Acequias have diverted the surface of springwater from 
seven tributaries to the Rio Grande, which are the Rio Hondo, 
Rio Lucero, Rio Arroyo Seco, Rio Pueblo, Rio Fernando, Rio 
Chiquito, and Rio Grande del Rancho. These acequias continue to 
provide water for domestic uses by the watering and the 
irrigation over 12,000 acres.
    Today our acequias have over 7,000 individual members, many 
of them who irrigate small fields to raise a few head of 
livestock and gardens in order to feed their families.
    In the Taos Valley, the acequias are truly the lifeblood of 
the community. Our traditional rural lifestyle and culture are 
sustained by the acequias. Many of the acequias flow through 
Taos Pueblo land.
    Non-Indian Acequia members and Taos Pueblo members interact 
on a daily basis. They are our neighbors who have been sharing 
the resources of the Taos Valley for centuries.
    Of course, during the long history there have been disputes 
over water, especially during drought and periodic water 
shortages.
    This settlement addresses not only the water rights of Taos 
Pueblo but the resolution of competing claims of the acequia 
water rights, which were established and are the laws and 
customs of Spain and Mexico and are protected by the United 
States under the 1848 Treaty of Guadalupe Hidalgo.
    The United States owes not only a Federal trust obligation 
to Taos Pueblo but an obligation under the treaty and 
established constitutional and international legal principles 
to protect the water rights of the Acequia and their members.
    The Taos Indian Water Settlement Act, H.R. 3254, is an 
opportunity to finally resolve all water sharing disputes 
between the Acequias and Taos Pueblo. Because the water is so 
vital to the survival and prosperity of all parties in the Taos 
Valley, we have been involved in negotiations since October 
1989. This settlement Act represents a compromise and a 
guarantee of future allocations that costly litigation could 
never achieve.
    Most importantly, the settlement secures future centuries 
of mutual accesses and sharing of water for the Acequias and 
Taos Pueblo. The settlement, of course, defines and secures the 
nature and extent of Taos Pueblo's water rights. It also 
secures the rights of Acequia members, and protects them from 
challenges to their water rights by other parties.
    The settlement provides for the continuous specific water 
sharing customs and traditions, rather than the imposition of 
priority administration of water. It will last for the 
sustenance of the traditional and rural lifestyle of Acequia 
members.
    The settlement balances the needs of all parties in the 
Taos Valley, now and in the future. This includes municipal 
water providers and thousands of domestic well owners. The 
financial applications of the United States are not only to 
Taos Pueblo, which certainly has substantial claims against the 
United States. This settlement will also resolve the Acequias' 
longstanding claims against the United States with the 
construction of the Arroyo Acequia Arriba storage project and 
the Acequia Madre del Prado stream gauge.
    The benefits of the settlement Act far outweigh any 
financial analysis. You cannot put a price tag on the social 
benefits of peace and harmony between neighbors. Longstanding 
disputes over water will finally be put to rest. This 
settlement will avoid contentious litigation that could only 
cost future mistrust and conflict throughout the Taos area.
    The TVAA urges Congress to take this rare opportunity to 
support a local solution to past, present, and future water 
allocation challenges. We urge passage of the Taos Pueblo 
Indian Water Rights Settlement Act, H.R. 3254.
    The TVAA thanks Chair Napolitano and members of the House 
Subcommittee on Water and Power for the time and consideration 
of this vitally important matter of water for our future. We 
also thank New Mexico Congressman Ben Ray Lujan and other 
members of the New Mexico Congressional delegation for their 
unwavering support of our settlement.
    Respectfully submitted by Palemon Martinez, President of 
the Taos Valley Acequia Association, and we stand for any 
questions that you may have. Thank you.
    [The prepared statement of Mr. Martinez follows:]

             Statement of Palemon A. Martinez, President, 
    Taos Valley Acequia Association, Taos, New Mexico, on H.R. 3254

    Dear Chairwoman Napolitano and Ranking Member McClintock:
    I speak to you on behalf of the Taos Valley Acequia Association 
(TVAA) and its 55 member Acequias. We urge your favorable action on 
H.R. 3254, the Taos Pueblo Indian Water Rights Settlement Act.
    The TVAA and Acequias are parties to the settlement agreement with 
Taos Pueblo. Acequias are also known as community ditch associations. 
They have existed in the Taos Valley of north-central New Mexico since 
the area was settled by Spanish settlers over 400 years ago. Acequias 
have diverted surface and spring water from seven tributaries of the 
Rio Grande, which are the Rio Hondo, Rio Lucero, Rio Arroyo Seco, Rio 
Pueblo, Rio Fernando, Rio Chiquito, and Rio Grande del Rancho. These 
Acequias continue to provide water for domestic uses, livestock 
watering, and the irrigation of over 12,000 acres. Today our acequias 
have over 7,600 individual members, many of whom irrigate small fields, 
to raise a few head of livestock, and gardens, in order to feed their 
families. In the Taos Valley the Acequias are truly the lifeblood of 
the community. Our traditional rural lifestyle and culture are 
sustained by the acequias.
    Many of the acequias flow through Taos Pueblo land. Non-Indian 
Acequia members and Taos Pueblo members interact on a daily basis. They 
are neighbors who have been sharing the water resources of the Taos 
Valley for centuries. Of course during that long history, there have 
been disputes over the water, especially during droughts and periodic 
water shortages.
    This settlement addresses not only the water rights of Taos Pueblo 
but the resolution of competing claims of the Acequias' water rights 
which were established under the laws and customs of Spain and Mexico 
and are protected by the United States under the 1848 Treaty of 
Guadalupe Hidalgo. The United States owes not only a federal trust 
obligation to Taos Pueblo, but an obligation under the Treaty and 
established constitutional and international legal principles to 
protect the water rights of the Acequias and their members.
    The Taos Pueblo Indian Water Rights Settlement Act, H.R. 3254, is 
an opportunity to finally resolve all water sharing disputes between 
the Acequias and Taos Pueblo. Because water is so vital to the survival 
and prosperity of all parties in the Taos Valley, we have been involved 
in negotiations since 1989. This Settlement Act represents a compromise 
and a guarantee of future allocations that costly litigation could 
never achieve.
    Most importantly the settlement secures future centuries of mutual 
existence and sharing of water for the Acequias and Taos Pueblo. The 
settlement of course defines and secures the nature and extent of Taos 
Pueblo's water rights. It also secures the rights of Acequia members 
and protects them from challenges to their water rights by other 
parties. The settlement provides for the continuance of specific water 
sharing customs and traditions rather than the imposition of priority 
administration of water. It allows for the sustenance of the 
traditional and rural lifestyle and culture of Acequia members. The 
settlement balances the needs of all parties in the Taos Valley, now 
and in the future. This includes municipal water providers and 
thousands of domestic well owners.
    The financial obligations of the United States are not only to Taos 
Pueblo, which certainly has substantial claims against the United 
States. This settlement will also resolve Acequias' longstanding claims 
against the United States with the construction of the Arroyo Seco 
Arriba storage project and Acequia Madre del Prado stream gage.
    The benefits of the Settlement Act far outweigh any financial 
analysis. You cannot put a price on the social benefits of peace and 
harmony between neighbors. Long-simmering disputes over water will 
finally be put to rest. This settlement will avoid contentious 
litigation that could only cause future mistrust and conflict 
throughout the Taos area.
    The TVAA urges Congress to take this rare opportunity to support a 
local solution to past, present, and future water allocation 
challenges. We urge passage of the Taos Pueblo Indian Water Rights 
Settlement Act, H.R. 3254. The TVAA thanks Chair Napolitano and members 
of the House Subcommittee on Water and Power, for your time and 
consideration of this vitally important matter of water for our future. 
We also thank New Mexico Congressman Ben Ray Lujan and other members of 
the New Mexico Congressional Delegation for their unwavering support of 
our settlement.
                                 ______
                                 
    Mr. McClintock [presiding]. Thank you, and right on time, 
too. Thank you for that.
    The next witness is Harry B. Montoya, who is Commissioner 
of District 1, Santa Fe County Commission, Santa Fe, New 
Mexico.
    Commissioner Montoya.

  STATEMENT OF HARRY B. MONTOYA, COMMISSIONER OF DISTRICT 1, 
        SANTA FE COUNTY COMMISSION, SANTA FE, NEW MEXICO

    Mr. Montoya. Buenos tardes, good afternoon, Madame Chair 
Napolitano, Ranking Member McClintock, Congressman Ben Ray 
Lujan. I want to thank you for the opportunity to provide some 
testimony on behalf of Santa Fe County this afternoon.
    I am in my second term as Santa Fe County Commissioner. I 
live where this is taking place, and need to know that when, 
unlike Congressman Lujan, I was six years old when this 
litigation started.
    So I would like to provide the testimony in support of H.R. 
3342, and especially want to thank the New Mexico Congressional 
delegation, Sen. Bingaman, Sen. Udall, and Congressman Udall 
and Heinrich, who have provided the leadership and guidance 
that will allow the fighting to end, and will pave the way to a 
better future for our community.
    The county believes that the settlement is highly 
desirable, and has committed to make a substantial local 
contribution to help implement it.
    I would like to briefly outline two of the major benefits 
of the settlement.
    First, the centerpiece of the settlement is a regional 
water system that will greatly alleviate water shortages and 
water quality problems in the basin. The system would benefit 
basin residents, Indian and non-Indian alike, and would provide 
a clean and reliable water supply, and reduce the demand on 
limited local water resources.
    The settlement has a substantial stake in local cost share. 
Santa Fe County will be contributing up to $60 million toward 
construction and operation of the water system. Combined with 
financial contributions from the State of New Mexico and the 
City of Santa Fe, the non-Federal contribution is projected to 
exceed $100 million; or, as was stated earlier by Commissioner 
Connor, about 40 percent of the total settlement cost.
    This is noteworthy, especially when the percentage of water 
allocated from the regional water system to non-Pueblo 
customers is proportionately less.
    The second benefit of the settlement I want to underscore 
is that it achieves a fair and equitable resolution of the 
difficult water disputes that have plagued the Pojoaque Valley 
for many years. The settling parties reached the settlement 
after years of good faith and painstaking negotiations 
conducted in numerous court-ordered meetings, open to every 
water rights owner in the Basin.
    Under the settlement, existing non-Pueblo uses will be 
protected far better, I believe, than the most optimistic 
litigation outcome.
    Nonetheless, some non-Pueblo residents oppose the 
settlement, apparently believing they can pick and choose 
elements of the settlement, and discard others. For example, 
some opponents argue the non-Pueblo portion of the water system 
should be eliminated, making it a Pueblo-only system. Such a 
misconception of how the settlement was reached jeopardizes the 
entire settlement, unwittingly reflecting a preference for 
litigation.
    I believe it would be a big mistake to exclude non-Pueblo 
residents. And I firmly believe that there will be a demand 
from non-Pueblo residents to connect to the system. Our 
community needs closure of this longstanding conflict, not 
further division.
    Rather than defining winners and losers, the settlement 
protects existing uses, and allows for future growth by careful 
management of available water resources. The settlement 
safeguards time immemorial and senior uses of Pueblos and early 
Spanish Acequias, and at the same time creates a reliable 
supply to more recent domestic and commercial uses.
    It should be noted that Santa Fe County has been very 
proactive in terms of the work that we have done with community 
members. We have had community meetings, town halls. The 
process of involving individuals in this whole information 
education of the settlement has been exhaustive, and we 
continue to do that work, and will continue to do it until we 
are able to finally get the complete settlement of which we are 
asking today that the Federal government become a partner of 
the local tribal governments and the state government.
    And in conclusion, I want to thank you, Madame Chairwoman, 
Ranking Member, and Congressman Lujan for sponsoring this 
important bill. With your help, I am hopeful that we can fully 
restore some of the peace in our valley, and provide water for 
our constituents for years to come.
    And I would stand for any questions.
    [The prepared statement of Mr. Montoya follows:]

     Statement of Harry B. Montoya, Santa Fe County Commissioner, 
                        New Mexico, on H.R. 3342

    Chairwoman Napolitano, Ranking Member McClintock, committee 
members, and Congressman Lujan, I am Harry B. Montoya. I am in my 
second term on the Board of County Commissioners of Santa Fe County and 
I am pleased to offer this testimony on behalf of Santa Fe County. The 
Pojoaque stream system is located within my district and it is also 
where I grew up and have spent most of my life. When the Aamodt 
litigation was filed I was six years old. Forty-three years later, I am 
very gratified the parties have reached a settlement of this divisive 
litigation, which is the oldest running lawsuit in the federal court 
system. With your help, the settlement will provide a reliable water 
supply to the Pueblos of Nambe, Pojoaque, San Ildefonso and Tesuque, as 
well as to other county residents in the Pojoaque basin.
    I appreciate very much the opportunity to provide testimony in 
support of the Aamodt Litigation Settlement Act, H.R. 3342. I 
especially want to thank the New Mexico congressional delegation for 
enabling us to achieve this settlement. After years of what appeared to 
be intractable and interminable litigation involving thousands of water 
users, Senators Bingaman and Udall and Congressmen Lujan and Heinrich 
have provided the leadership and the guidance that will allow the 
fighting to end and will pave the way to a better future for the 
Pojoaque basin.
OVERVIEW OF SETTLEMENT
    The parties reached this settlement after six years of intensive 
settlement talks ordered by the federal court. In 2006, along with 
other settling parties, the County, the four Pueblos, the City of Santa 
Fe and the State of New Mexico signed the Aamodt settlement agreement. 
The settlement will resolve long-standing water issues between the 
Pueblos, the State of New Mexico and numerous water rights claimants to 
the limited supplies of the Pojoaque basin. Now the settling parties, 
including the seven governmental entities, urge the United States to 
join us as signatories to the settlement agreement.
    This legislation will authorize the Secretary of the Interior to 
execute the settlement agreement. And it will authorize construction of 
an important regional water system for the benefit of Pueblo members 
and other County residents.
    Although Santa Fe County does not have water rights at issue in the 
main Aamodt case, the County agreed to become a party to the settlement 
and is willing to make a substantial local contribution to help 
implement it.
    The County believes the settlement is highly desirable for two 
reasons. First, the centerpiece of the settlement is a regional water 
system that will greatly alleviate water shortages and water quality 
problems in the basin. Second, the settlement achieves a fair and 
equitable resolution of the competing claims to water in one of the 
most water-short areas of the west.
    I would like to briefly discuss both of these settlement benefits.
REGIONAL WATER SYSTEM
    A vital component of the settlement is a regional water system 
serving the Pojoaque basin. Because the basin is chronically short of 
water, the foundation of our agreement is construction and operation of 
a joint water utility that will divert up to 4,000 acre-feet of water 
per year from the Rio Grande. Of that amount, the regional water system 
will treat and deliver 2,500 acre-feet to the four Pueblos and up to 
1,500 acre-feet to non-Pueblo customers of the County water utility.
    The regional water system bestows many benefits. Most obvious is 
its importance in delivering a substantial amount of water to meet the 
future needs of the Pueblos. Less obvious, but perhaps as important to 
the Pueblos, the water system provides water to non-Pueblo water users 
who otherwise would continue to divert basin groundwater and deplete 
surface flows needed for traditional irrigation and other uses. The 
settlement contains incentives and provisions for settling non-Pueblo 
parties to connect to the system and requires new users in the future 
to connect. Finally, the system directly benefits connecting non-Pueblo 
customers by providing a clean and reliable water supply.
    The regional water system will be governed by a board made up of 
the Pueblos and the County. By cooperating basin-wide, these five 
governmental partners will reduce tensions over water distribution and 
will gain greater efficiencies in system operation and maintenance. Our 
agreement for regional cooperation should be a model for other 
communities that find themselves needing to band together to secure 
water beyond their individual jurisdictions.
    The County believes that the regional water system is not only a 
good deal for the federal government and the Pueblos but is also a good 
deal for state and local parties. That is why the County will invest 
substantial local funds in the system. Including its share of 
construction costs and its responsibility for operational costs, the 
County is contributing as much as $60 million. When combined with 
financial contributions from the State and City, the non-federal 
contribution is projected to exceed $100 million, or about 40% of the 
total settlement costs. This is noteworthy, especially when the 
percentage of water allocated from the regional water system to non-
Pueblo customers is proportionately less.
FAIR AND EQUITABLE RESOLUTION
    The settlement will achieve a fair and equitable resolution of the 
difficult and entrenched water disputes that have plagued the Pojoaque 
basin for so many years.
    For the last 150 years the Pojoaque basin has suffered from land 
and water conflicts, pitting neighbor against neighbor and Pueblo 
member versus non-Pueblo people. Two U.S. Supreme Court cases and an 
Act of Congress failed to settle the issues, and the Aamodt water 
rights adjudication has done no better. The settlement is the only hope 
for ending the divisions and allowing for harmony in the basin.
    The settling parties reached a settlement after years of good faith 
and painstaking negotiations conducted in numerous court-ordered 
meetings open to every water rights owner in the basin. The settlement 
is a carefully constructed compromise--a product of serious give and 
take by parties desiring a better path than continual litigation. Under 
the settlement, existing non-Pueblo uses will be protected, far better, 
I believe, than the most optimistic litigation outcome.
    Nonetheless, some non-Pueblo residents oppose the settlement, 
apparently believing they can pick and choose elements of the 
settlement and discard others. For example, some opponents argue the 
non-Pueblo portion of the water system should be eliminated, making it 
a ``Pueblo only'' system. Such a misconception of how the settlement 
was reached jeopardizes the entire settlement, unwittingly reflecting a 
preference for litigation.
    I believe it would be a big mistake to size and design the system 
to exclude non-Pueblo residents. If we do not authorize non-Pueblo 
access to the system and do not build in enough capacity, we will not 
have another chance in the future to make this service available. I 
firmly believe that there will be demand in the future from non-Pueblo 
residents to connect to the system. It would be a very unfortunate 
outcome if those people were told ``no, you cannot connect--this is a 
Pueblo-only system.'' Our community needs closure of this long-standing 
conflict, not further division.
    Under the settlement, the water system would be available to all 
residents within the service area, regardless of Pueblo membership. If 
non-Pueblo residents in an area with poor water quality want to hook 
up, they can. If residents with an old domestic well want to hook up, 
rather than investing in a new well, they can. However, no existing 
user will be required to hook up.
    Rather than defining winners and losers, the settlement protects 
existing uses and allows for future growth by careful management of 
available water resources. At the same time, it recognizes and 
safeguards time immemorial and senior use priorities of Pueblos and 
early Spanish acequias. The settlement also creates a reliable supply 
to more recent domestic and commercial uses, and is flexible enough to 
account for changing uses in the future.
    The agreement contains provisions that protect the basin from 
groundwater pumping in the adjoining and much more populous Santa Fe 
basin. Both the County and the City of Santa Fe have agreed in the 
proposed settlement to mechanisms to offset effects on basin surface 
waters from County and City groundwater withdrawals in the neighboring 
basin. In order to preserve groundwater supplies, the County and the 
City have also agreed to meet their demands from surface water sources 
to the maximum extent feasible in order to minimize the effects on 
ground and surface supplies of the Pojoaque basin.
    In conclusion, I want to thank the Chairwoman, Ranking Member and 
the committee members for hearing this matter, and Congressman Lujan 
for sponsoring this important bill. H.R. 3342 has been carefully 
crafted to address the difficult water supply needs within the Pojoaque 
basin. We have waited a long time to get to this point. We are hopeful, 
with your help, our time is now.
                                 ______
                                 
    Mrs. Napolitano [presiding]. Thank you for that testimony, 
Mr. Montoya. And now we will begin the questioning.
    And I would like to start off with Commissioner Connor. I 
have read through most of the testimony, including both bills. 
I agree on a lot of the instances, and I am glad that you have 
had such a longstanding working relationship in this. In fact, 
I think you were the one who started the ball rolling on the 
bills themselves.
    And I know that the budget is tight. I know that everybody 
else is looking for the ability to do a lot with the little 
budgetthat you have.
    But the last Administration testified against almost every 
settlement, against every bill that we had that was beneficial 
to develop more water, to assist in Indian water rights claims, 
applying a general rule that does not support applying the rule 
that would not support the position, and did not distinguish 
the varying levels of the readiness of each proposed 
settlement. And you have turned that around. So I am very 
grateful. I am very happy to see that you are now considering, 
even though you are saying there are things that still need to 
be done, you are acknowledging that the different projects, 
readiness of each settlement, and you are asking for more.
    Would that be the end of those requests? Or will you think 
you will find more to ask of the settling parties in the 
future, so that they can prepare for that?
    I am just searching in my mind because from the last 
Administration to this is quite a change. We want to ensure 
that we are considering those areas that we know we have to 
look at.
    Mr. Connor. Thank you, Madame Chairwoman. When we testify 
on these settlement bills, we are trying to go exhaustively 
through the provisions of the bills to identify all the issues 
that we see and to chart a path--specifically given the bills 
as introduced--and see how to get to settlements that we would 
support.
    In particular, in these two bills, these bills are in 
pretty good shape with respect to the issues identified, as 
articulated in the written testimony. We are applying the 
principles that identify the four principles, and trying to use 
those as the framework for establishing the parameters on which 
we will support or not support settlements, or raise issues 
with the settlements.
    And these settlements come to us in a range of different 
conditions, I guess. And specifically with respect to these two 
settlement bills, because you mentioned limited resources, et 
cetera, one of the issues that we raised related to cost has to 
do with the regional water system in the settlement. We want to 
ensure that, as rigorously as possible, we can get as accurate 
a cost estimate--given the information that we have. That is 
one of the suggestions here, so that we all understand the risk 
of cost overruns, and can appropriately allocate that risk.
    With respect to another issue of cost--the cost shared by 
non-Federal parties--that is an area that we are also looking 
closely at. The principles that we have established set out the 
basis that we should have appropriate cost sharing for 
proportionate benefits to non-Indian parties. And we have tried 
to establish some parameters here in this settlement testimony 
as looking at existing water resource programs within the 
Federal government as a guide as to what is an appropriate cost 
share.
    So with that, I guess I am not sure I am answering 
specifically the question you suggest, but we are trying to get 
down to a level of specificity so that we can identify issues, 
people have a clear understanding of what it would take to get 
Federal support. We are trying to lay that as a foundation for 
other settlements that follow in the wake of these two 
settlement bills, so that there is clarity and understanding of 
where we are coming from.
    Mrs. Napolitano. Well, apparently you have already reached 
some consensus on some of the issues that you had brought up 
before. Am I correct?
    Mr. Connor. That is correct. We understand that there have 
been some language changes already negotiating and agreed to by 
the parties.
    Mrs. Napolitano. And the concerns that remain still vary 
with the Administration? The remaining ones?
    Mr. Connor. Yes, they are. We would like to have 
discussions with the parties about cost share, particularly in 
the Taos situation. And we would definitely like to do our cost 
estimate analysis as set forth in the Aamodt testimony.
    Mrs. Napolitano. Then the question to Mr. Cordova. You 
agreed to some of the changes mentioned in the Commissioner's 
testimony. I am sure you would like to continue to work with 
them to resolve these concerns? And how soon do you think this 
could take place?
    Mr. Cordova. Madame Chair, as I stated in our testimony, we 
are ready to engage the Administration at any time. We are 
ready to stay and get the job done.
    As I said, this adjudication has been going on too long, 
and we want to get it done this year. So I am hoping that the 
Administration will take up and meet with us, so we can go over 
the issues.
    Mrs. Napolitano. OK.
    Mr. Dorame. Madame Chairwoman, I also pledge our support 
and cooperation that is ahead of us. We have worked with Mr. 
Connor before. We have a good working relationship with him, 
and we will continue to do so.
    Mrs. Napolitano. Great. Mr. Sanders, there is the question 
about the Federal share versus the non-Indian and, or non-
Pueblo or the state share. Is there willingness of any of those 
parties to increase their share?
    Mr. Sanders. Madame Chairman, with respect to the Taos 
settlement, we believe that our cost share is adequate. We 
believe that we are not given adequate credit for, we are 
paying 100 percent of the OMNR for the mitigation well system. 
We are paying 100 percent of the OMNR for the storage project 
wells. We are paying 100 percent of water right acquisition for 
roughly $4 million. So we believe we are not getting adequate 
notice by our contributions for the non-Pueblo portions. We 
feel like our contribution approaches somewhere approximately 
42 percent of the overall cost of the settlement.
    So, we are not likely to, and I would guess that given the 
current situation in the State of New Mexico, not likely to 
increase our funding.
    Mrs. Napolitano. Is there any thought of the possibility, 
if this were to be a necessity, to go to bonding?
    Mr. Sanders. Madame Chair, in fact, the State Legislature 
is currently setting aside money by using its existing bonding 
capacity from our severance tax revenues. That would be the 
source of funding.
    So we have set aside a capacity. And the plan is to roll 
that over year after year, or every five years, to ensure that 
we develop an adequate supply of severance tax bonding capacity 
provided by the state's share of funding.
    We have thought this through. We have worked hard with our 
State Legislature and our Governor to come up with the funding 
mechanism. And while I would like to sit here and say sure, we 
would like to raise that, I would say it is highly unlikely.
    Mrs. Napolitano. The cost estimate that I have viewed in 
some of the testimony were 2007 estimates. Everything has gone 
up.
    Is there the ability for somebody to take an even split in 
addressing those increases?
    Mr. Sanders. Madame Chair, we are referring probably more 
likely to the Aamodt settlement in that case.
    Mrs. Napolitano. Right.
    Mr. Sanders. And I think the way the current revision of 
the settlement is to operate. And I will defer to Commissioner 
Montoya, should I misspeak.
    But my understanding is what we have done on the sizing is 
that we will pay our cost of the pipeline, depending upon the 
size. And rather than have a debate about how to share 
additional cost, we have agreed to design the pipeline for the 
size that we are going to pay for in the future, and pay for 
that cost.
    So I think that might be kind of an adequate representation 
of how we intend to take care of the increased cost. That was 
2007, so with this change, I think we will be accommodating 
this in an indirect way.
    Mrs. Napolitano. And you assured that with Commissioner 
Connor. He knows, the Administration knows this. Yes? No?
    Mr. Sanders. I would like to think that he does, but he now 
knows it.
    Mrs. Napolitano. Commissioner Montoya.
    Mr. Montoya. Yes. DL is correct, Madame Chair, in terms of 
looking at--we are going to build the system so the people will 
be allowed to hook up in the future.
    So it is not going to be a matter of we are going to have 
smaller pipes in the ground now, and then need to go back and 
put from 6- to 12-inch. We are going to size it to the size 
that it needs to be, that will allow for maximum capacity 
immediately. And people will hook up as they so desire.
    Mrs. Napolitano. I read that in the testimony, so I am very 
pleased that that is there. And one of the reasons I am asking 
is so it goes on the record, too.
    Mr. Montoya. Yes.
    Mrs. Napolitano. And to all of you, to any of you, what are 
the likely consequences to your water users if these 
settlements are not authorized by Congress?
    Mr. Montoya. Madame Chair, members of the Committee, I 
would say that for the Aamodt settlement, if this goes to 
litigation, which is a circumstance which would be detrimental 
to all water users in the Pojoaque Basin, we would likely not 
get the water rights that are being allocated currently under 
the settlement. It would be far less in terms of what non-
Pueblo users would get, and also in terms of what the Pueblos 
are currently going to be allocated.
    Being in the non-Pueblo portion of the population would be 
subject to water calls there, because of the junior water 
rights use. So the potential of them losing their water rights 
completely exists much more significantly if we do not have 
this settlement and if it goes to litigation.
    Mrs. Napolitano. Mr. Martinez, any comment?
    Mr. Martinez. Madame Chair, we and the Pueblo initiated the 
negotiation, trying to get away from the litigation. I think 
litigation would lead to protracted experiences like other 
parties have been going through. There would be animosity 
between parties. I think the potential loss of the San Juantamo 
water is tentatively allocated for Taos based on the 
settlements, and a good plan that we have devised probably 
would disappear. Yet the valley still needs a good plan for 
everybody to survive. Thank you.
    Mr. Sanders. Madame Chair, if I might. I would like to 
point out that that is an excellent question that goes right to 
the heart of the settlements, is that what the effect would be 
on local users. And it gives me an opportunity to reiterate 
what maybe I didn't make as clear as I should have, is that the 
water rights in each of these settlements, once adjudicated, 
will likely be greater than the annual, the seasonal available 
water supply.
    What that means is while there might be an annual supply of 
water, there is not an adequate amount of storage, or there is 
no storage to have water sufficient for the entire irrigation 
season.
    So, during those periods of the summer after the spring 
runoff has occurred, and you move into the months of late May 
and June, and through most of July, you will have an inadequate 
supply to meet existing irrigation demand.
    Irrigation demand of the Pueblos would be entitled to call, 
make a priority call for water sufficient to meet their needs. 
And I think in two of the three tributaries that we are talking 
about, that would be sufficient to curtail all other uses. And 
that would include some domestic use.
    This is the sole source of supply of water for some of 
these homes, for many of the homes there. And it seems an 
improbable and illogical conclusion to have that kind of 
situation as evolved.
    Again, please remember that these are water rights that 
were established long before they were part of the United 
States, including the Acequias. These rights and the water, the 
allocation of the water, was largely fully appropriated by the 
time we became part of the United States.
    So, this is a situation that we have been dealing with on 
an ad hoc basis. And I would like to just add one other point.
    We have had two opportunities where the United States has 
come in to seek priority administration. I believe in 1998 they 
filed, and Pam Williams is here today. She can refresh my 
memory on that. But in 1998 we had two priority calls, one on 
the Rio Jemez, and I think one on [Rios] Nambe, Pojoaque, and 
Tesuque. And as we were gearing up for that, and maybe it was a 
blessing, it rained, so we didn't have a priority call.
    Again in 2000, though, we had a serious drought. In the 
beginning the six middle Rio Grande Pueblos were seeking to 
have a priority call.
    The problem with making a call in these areas was 
unquantified rights, because there will be a significant amount 
of litigation that would be developing litigation on parallel 
tracks. One trying to qualify the rights, while at the same 
time trying to shut down the end quantified rights, which is an 
untenable situation for any court in any state that they put 
themselves into.
    So without these settlements I offer to you, you will only 
increase the opportunity for litigation and disharmony in the 
State of New Mexico.
    Thank you.
    Mr. Cordova. Madame Chair, I would like to add to what DL 
said. I think what is going to result is going to be mass 
confusion.
    While we are waiting for litigation to determine what the 
tribes' rights are versus what Palemon and his folks are 
entitled to, who knows how long it is going to take. And we are 
going to be stuck in the same situation that we have been for 
the last hundreds of years, not knowing what is really ours and 
what is really theirs. And we are going to be fighting over 
scarce water resources.
    I don't think that we want to get on the road to 
litigation, because we are not going to resolve anything 
through that. So I hate to even think about what is going to 
happen without a settlement.
    Mr. Dorame. Madame Chairwoman, you mentioned earlier the 
importance of the settlement, and the trust and respect and 
cooperation that it takes to come to this point.
    I believe that if this settlement is not approved by 
Congress, you will diminish those three. But I will say this; 
that I will continue to come as long as it takes.
    Mr. Connor. Madame Chairwoman, I would like to give a 
perspective. I guess it is a perspective that is mine, not in 
my current role as Commissioner of Reclamation.
    I can tell you with respect to these settlements, having 
been, as I think Mr. Cordova references in his testimony, I was 
once the Federal negotiating team chair for the Taos water 
settlement matter. And I think that was in the mid-nineties and 
late nineties.
    We would convene these meetings very formally, and very 
stiffly, I might add, because they were very tense discussions 
we were having between the Federal team, the Pueblo, the Town 
of Taos, the Acequia Association.
    I guess the best evidence of how these settlements can 
bring communities together is they were much more pleasant 
experiences when I was working on these matters in the U.S. 
Senate, when these parties all came together to advocate for a 
common purpose, which was to implement these settlements. That 
is referenced in our testimony now, and that is an important 
element to this Administration, is bringing that kind of 
harmony and ending the litigation.
    I have seen it firsthand. It is one of our goals. It is 
fundamental to these settlements, and it is the best way to 
resolve these issues.
    Mrs. Napolitano. Thank you, gentlemen. Mr. McClintock.
    Mr. McClintock. Yes. Commissioner Connor, just to be clear, 
this bill in its current form, are you for it or against it?
    Mr. Connor. This bill, these bills in its current form have 
a lot of positive aspects that the Administration does support.
    Mr. McClintock. That is not what I asked. Are you for it or 
against it?
    Mr. Connor. We, the Administration, I can only state what 
is in my testimony. The Administration would like to see 
certain provisions in these bills amended.
    Mr. McClintock. All right. So if it was before you in its 
current form, you would be against it?
    Mr. Connor. Well, that goes to the ultimate question of 
what would it do if it came across the President's desk. That 
is a discussion that I can't have with you here today.
    We are pretty clear on the provisions that we would like to 
see amended.
    Mr. McClintock. We cannot cast votes conditionally. The 
President can't veto bills or sign bills conditionally. You 
either do or you don't.
    So are you for it or against it?
    Mr. Connor. That is a decision that the President would 
make.
    Mr. McClintock. You mentioned the rather unusual 
arrangement where the water infrastructure would be 
constructed, and water rights would be acquired before the 
settlement is final and fully enforceable. That sounds to me a 
little bit like the cart before the horse. Is there any 
precedent for this?
    Mr. Connor. There is precedent. One that comes immediately 
to mind is the Rocky Boy Settlement that I think was enacted 
back in 1998. There was some early money that was made 
available. I think there are a couple of other provisions where 
there have been early benefits.
    And in those contexts, as in here I think the provision 
could be strengthened, is that the United States would be able 
to recoup or have an offset against any future claims if the 
money is indeed provided, but the settlement fails to be fully 
implemented and the waivers don't vest.
    Mr. McClintock. I think the current jargon is a clawback 
provision.
    I raise three concerns. I heard one of them addressed, 
which was many of the Pojoaque Basin property owners are 
concerned that this settlement will abridge their existing 
water rights by drawing down water. I think I heard an answer 
from Mr. Sanders to that, which is that if it goes to 
litigation, it is quite conceivable that it would require an 
even greater diversion away from the Pojoaque property owners.
    Am I correct in that interpretation?
    Mr. Sanders. Mr. Chairman, Congressman, I think the answer 
is yes. Without the settlement, you will have the Pueblos that 
are downstream senior users during periods, like I mentioned 
the drier months, particularly May, June, and July, they will 
have the senior right to call for water. And that call would be 
sufficient to eliminate the more junior rights, which are the 
domestic groundwater rights, that people need for their, you 
know, for their domestic needs, you know, for the health and 
welfare of their homes.
    Mr. McClintock. Has this been brought up in the local 
discussions? Again, one thing that causes me concern is the 
fact that not everybody in the area is on board. There seems to 
be a fairly significant organized opposition to this among 
local property owners.
    Mr. Sanders. Madame Chairwoman and Congressman, yes, it is 
hard to articulate exactly who is exactly opposed to it. You 
don't really get an opportunity to understand. I have not had 
the opportunity to understand how the questions and how the 
opposition is characterized.
    Mr. McClintock. I have a paper here from the Pojoaque Basin 
Water Alliance in Santa Fe.
    Mr. Sanders. Right. Madame Chair, Congressman, I am 
familiar with that. And I live there, and I am familiar with 
the folks.
    The question is how they have asked people if they oppose 
the settlement. I would oppose it in the way they characterize 
the issue to me, and I negotiated a large part of the 
settlement.
    They are simply wrong, and they are, they misconstrue many 
areas of the settlement.
    Mr. McClintock. Well, they say they have 1,500 signatures 
on a petition opposing the RWS; 99 percent of respondents in an 
800 call survey indicated they would not connect to the system. 
That sounds pretty significant to me.
    Mr. Sanders. Madame Chair, Congressman, again, I agree with 
you. It is how the question, how they posed the question, not 
seeing the way the question was posed.
    The question, the way I understood them to articulate their 
position and presented it is that not knowing and not having 
participated in the negotiations and being familiar with these 
bills, with this bill, I would oppose the bill also. I would 
not hook up.
    But I know that the fundamental basis for their opposition 
to the bill, and the way they present that opposition to the 
community, is flawed.
    So, you know, you can't force people to understand 
something.
    Mr. McClintock. That may or may not be. But I am sure if 
they were here, they would say that your presentation is 
flawed, they don't agree with that. The whole idea of a 
settlement is to bring everybody together and find some common 
ground.
    It doesn't sound like that has come to fruition. As long as 
there is this kind of local opposition, this is not, does not 
seem to be an amicable arrangement among friends; it seems to 
be terms imposed upon a conquered enemy, to quote Burke.
    Mr. Connor. Can I address that question, Rep. McClintock?
    The petition that I have seen, and I don't know if there 
are new petitions, stated support for the settlement, 
opposition to non-Pueblo participation in the regional water 
system.
    Accordingly, given that position, the bill was amended from 
the way it was last year to allow for the county to have some 
flexibility in sizing the county portion of the system, to make 
up for the fact that there may be a sizable amount of folks who 
may not want to sign up to join the regional water system. But 
also to let the dialogue continue where it is appropriate we 
should be, at the county, state, and local level.
    So, that was an improvement made specifically to address 
the position set out in that petition.
    Mr. McClintock. Right. But given the fact that we are 
advancing funds, and we are assigning rights before the 
settlement is in place, and knowing that there is significant 
opposition, makes me a little hesitant.
    Mr. Connor. Well, their only money provision and the 
concerns that the Administration have are with the Taos 
settlement, not with the Aamodt settlement.
    Mr. McClintock. All right. The other two issues that I 
raised I didn't hear addressed. One of them is the use of 
eminent domain by agencies that are not directly elected by the 
citizens over which eminent domain is being imposed, and the 
question of financing.
    Why is it that Poughkeepsie is being called upon to pay for 
Pojoaque's water project?
    Mr. Sanders. Madame Chair, Congressman, let us see, let me 
answer the first question, the second question first, I guess, 
because I remember that one.
    With respect to these settlements, the state is bearing the 
same share that it bears, is bearing the cost of the non-Indian 
portion for its non-Indian benefits.
    We have tried to stay consistent, particularly in the Taos 
settlement. We have stayed consistent with the Rural Water 
Act----
    Mr. McClintock. Let me interrupt. That applies to the non-
reservation of property owners in the Pojoaque Basin. I am 
talking about Poughkeepsie, New York, or Palomar, California. 
Why should these communities end up paying for what amounts to 
a local system in the Pojoaque Basin in New Mexico?
    Again, in the past, water projects were financed by revenue 
bonds that were redeemed by the users of the water in 
proportion to the use. You buy more water, you pay more for 
that water. That redeems the bonds. That assures that the 
people who are exclusively benefitting by the project are 
exclusively financing that project.
    What is wrong with that? And why are we asking the people 
from Palomar, California and Poughkeepsie, New York to pay for 
a substantial part of these projects?
    Mr. Connor. Well, I think overall I would say, in general, 
I think the history has been the opposite. I think the history 
has been that there has been a Federal program, given whether 
it be the reclamation program or other water resources 
programs, where there has been substantial Federal investment 
in water supply projects for what was perceived to be an 
overall national benefit.
    In this particular matter, I would say it is enhanced by 
the fact that there is a Federal trust responsibility that 
exists for Indian tribes.
    Mr. McClintock. Well, the Federal trust responsibility is 
to assign water rights to the reservation; it is not to pay for 
the project for the reservation.
    Mr. Connor. Is there a Federal obligation? I don't know 
that that is a question that has ever been fully answered. Is 
it within the realm of the Federal trust responsibility to 
provide?
    Mr. McClintock. There is to assign rights, I don't think 
there is any question about that. But as far as ingoing and 
building the project, I am not sure that obligation exists.
    Mr. Connor. That obligation exists, I don't know the answer 
to that legal question. I do know that there is a history well 
over a century old about building infrastructure on Indian 
reservations. Historically that has been irrigation facilities. 
In the present tense, it is more related to MNI projects.
    Mr. McClintock. OK. And then the final question is on the 
eminent domain. Can anybody help me out there?
    Mr. Connor. There is no new eminent domain authority in 
this bill for the Bureau of Reclamation or the Secretary of the 
Interior.
    Mr. McClintock. No, but a joint power agency is being 
established that includes the county and the Pueblo 
governments, am I correct?
    Mr. Connor. There is a regional water authority that is 
contemplated. If it is formed, it will be formed under state 
law, and any authority to condemn land will be under state law.
    Mr. McClintock. But the decisions are going to be made in 
part by sovereign entities, over which the voters don't have 
any control. And that works both ways. I am not sure that the 
county should have eminent domain authority over Pueblo land, 
or the Pueblo governments have eminent domain authority over 
county land. Land in the county, I should say.
    Mr. Connor. The Pueblos are obligated, as are the county, 
to provide any rights-of-way needed for the project that they, 
that they will provide at no cost. That is part and parcel of 
the settlement itself as to whether there are other lands that 
might have to be condemned. If not, I think the goal would be 
to negotiate and secure right-of-way if the right-of-way has to 
be achieved through other means.
    Once again, I think for the primary project, the trunkline 
of the regional water system, that will be the responsibility 
of the Federal government under existing authorities, no new 
authorities. If there are any additional lines for 
distribution, et cetera, once again this regional water 
authority will be formed under state law, and the State of New 
Mexico will define the parameters of any such authority.
    Mr. McClintock. Madame Chairwoman, would it be possible to 
get in the record whatever statement that local opposition 
might want to submit to the Committee, since we haven't heard 
from any of them today?
    Mrs. Napolitano. Yes. In fact, it is being introduced. 
There is a Senate Bill 1105 and H.R. 3342, for the record. 
Without objection, so ordered.
    Mr. McClintock. Thank you.
    Mrs. Napolitano. Mr. Lujan.
    Mr. Lujan. Thank you very much, Madame Chair and Ranking 
Member McClintock.
    Commissioner Montoya, could you touch upon the last series 
of questions there? What the county has done to address many of 
the questions that were put forth by the group that was 
referenced in the letter to opposition? And how you worked with 
the state engineer, to be able to shed some light on some of 
the comments or questions that were being put out?
    Mr. Montoya. Sure. Madame Chair, Congressman Lujan, the 
county has worked, as I mentioned as part of my testimony, 
really in conjunction and hand-in-hand with this group that has 
been opposed to this settlement from day one.
    Let me say that from 2004 to 2006, the settlements changed 
significantly, to where people were not going to have to cap 
their wells. It is going to be an option now. There have to be 
different options, one of which will be to cap their well 
eventually if they so desire.
    The settlement agreement which everybody came to agree back 
in, I believe it was May of 2006, that allowed for the three 
different options for those people to choose essentially which 
ones they wanted.
    They were part of the negotiation process during that whole 
time. They were represented, in fact, by an attorney who is in 
the audience here this afternoon, who no longer represents them 
for, you might want to ask him why he is not representing them 
anymore.
    But you know, certainly we have worked as hard as we could 
in terms of addressing the needs. Bottom line is that this 
group, no matter what we do, no matter how we do it, will be 
opposed to it. And that is a reality. That is a reality. 
Whenever you have these kinds of settlements, you are never 
going to please everybody.
    And this is a group, and they may have, the Congressman 
noted, 1,500 signatures. I have yet to get a phone call from 
any of my constituents saying this is a bad deal, other than 
from this group. And again, this group probably is about four 
or five that I hear from constantly.
    And other than that, as I mentioned, you know, I have yet 
to hear from someone other than these group members who are 
opposed to this settlement.
    Mr. Lujan. Commissioner Montoya, with that being said, how 
much of your district represents the area where the settlement 
would take place?
    Mr. Montoya. It is about a third of my complete district. 
The size of the geographic area is about one third of my whole 
geographic area of northern Santa Fe County.
    Mr. Lujan. Thank you, Commissioner. Mr. Sanders, if I could 
ask you a question, as well.
    I know that you touched upon this in your testimony. But 
could you brief upon some of the current core decisions in New 
Mexico that have rendered an opinion on questions of existing 
water rights, and how people would be impacted absent the 
settlement and the benefits associated therein, in a post-
settlement environment?
    Mr. Sanders. Madame Chair, Representative, I believe the 
situation is this. That without the settlement, the people who 
do oppose this--and you know, it is their right to oppose it, 
and also they don't have to sign up and participate on it.
    But the fact that there is a large majority of the 
population, the state, the county, the city, the Acequias, and 
the largest number of well owners in the area who agreed to 
this settlement, they will, to this settlement, protect these. 
And they are domestic well owners who are most junior in the 
valley, who, without the settlement, would be shut off in the 
event of a priority call.
    So as I said, we have worked tirelessly to try to explain 
this point. And as I said, there, you probably can convince me 
about some things. Once I have some things in my mind nobody 
can change my mind about. I think this is one of those 
instances.
    So, I firmly believe, and I have advised about two 
Governors and two Attorneys General, that these are the right 
things to do. Two of my bosses have worked tirelessly to get 
this done.
    Mr. Lujan. Thank you very much, Mr. Sanders. And if I could 
ask you to submit something into the record, just something 
that would simply describe the complexity and the dynamics of 
the state laws respective to junior and senior water rights, 
the function of a priority call that makes a settlement 
necessary for the protection of water resources and for water 
right holders in this area.
    And Mr. Ortiz, if you could just briefly touch upon the 
rights of the Pojoaques, the members of the Acequias, and the 
Acequia water right holders to be protected in the Abeyta case. 
Mr. Martinez.
    Mr. Martinez. I am sorry, would you repeat the question?
    Mr. Lujan. Absolutely, Mr. Martinez. If you could just 
briefly touch upon how will the rights of the Pojoaques, the 
members of the Acequia, and the Acequia water right holders be 
assured and protected in the settlement? Very briefly.
    Mr. Martinez. Congressman Lujan, the document which is an 
88-page document is extremely complicated, but it has different 
sections.
    As far as the sections are concerned that are covered under 
Article 8, we feel that they are all protected, all individual 
water rights will be protected. Customary agreements are 
protected. Even the other rural users within the Acequia 
systems, the mutual domestic for example, is a provision for 
footprint transfers and so forth.
    So we feel that they are all protected. We have run this by 
all parties within the Taos area, and we haven't had any 
opposition to that.
    Mr. Lujan. Thank you very much, Mr. Martinez.
    And Madame Chair, thank you again for allowing me to ask 
some questions today. I hope that we can get some assurance, 
maybe from the Bureau, that they would be willing to meet with 
some of the parties to be able to resolve some of the issues 
that it sounds like we are closer to than not today.
    Mrs. Napolitano. I am allowing you additional time.
    Mr. Lujan. Thank you very much, Madame Chair.
    In that regard, Mr. Conyers, Commissioner Connor--you can 
see that Chairman Conyers is on my mind, with all the 
discussion around pending legislation before the House.
    With the concerns that you addressed specifically from the 
Bureau, if those concerns are addressed, the Administration 
would be in a position of stronger support of the whole of the 
legislation?
    Mr. Connor. That is correct. I think that is well 
established in the testimony, that in general, that these bills 
as currently written are in general accord with the principles 
laid out.
    But the issues identified, if those are resolved, would 
lead to full Administration support.
    Mr. Lujan. And along those lines, Commissioner, is it 
clear, or would you agree with the statement that the 
Administration understands the importance of the settlements 
between New Mexico and the tribes as it relates to the 
limitations of water resources in both cases?
    Mr. Connor. Absolutely.
    Mr. Lujan. Madame Chair, with that, I yield back the 
balance of my time, and will stay around for a second round of 
questions, if that does happen.
    Mrs. Napolitano. Certainly. Mr. Heinrich.
    Mr. Heinrich. Thank you, Chairwoman. I think I am going to 
address this to either Chairman Dorame or Commissioner Connor.
    I want to get back to this issue of what the Federal 
responsibility is here, and why the participation.
    What exactly is the Federal trust responsibility to the 
tribes regarding water? And is Federal participation in this 
settlement part of that trust responsibility? And I would let 
either or both of you answer the question.
    Mr. Connor. That is one of the most complicated questions 
that I think I could be asked on this panel, the nature of the 
Federal responsibility of native water.
    I think fundamentally, as trustee for the tribes' interest, 
it starts with the fact that the United States files and 
represents claims on behalf of tribes in these general stream 
adjudications, as having a legal interest in those property 
rights.
    And how it goes beyond that to facilitate the use of those, 
that water, whether it is the adjudicator rights or through a 
settlement, I think is a gray area that is not fully defined.
    I stated earlier, in response to the Ranking Member, that I 
am not sure of the obligation, the legal standards that exist. 
That is a complicated line of Supreme Court cases, is when the 
Federal government is liable for breaching an obligation.
    But clearly I think the trust responsibility, there is the 
obligation, and then there is the authorization of what the 
Federal government can do as part of its trust responsibility. 
And then there I would contend that the provision of water, the 
representation of the right, then the facilitation of the use 
of that right is well within the accepted parameters of what 
the trust responsibility can entail, pursuant to how any 
particular Administration wants to implement that.
    Mr. Dorame. Rep. Heinrich, Chairwoman Napolitano, I am not 
an attorney, and I could turn my back and probably get two 
attorneys to respond. I don't think that is what you want to 
hear.
    My people have always been under the contention that the 
Federal government, as a trustee, has responsibility over 
everything that goes on on the reservations. It would be an 
opportune time for this Committee and this Congress to show 
exactly what trust responsibility means by approving this 
settlement agreement that we set forth.
    It has been long overdue. It has been ensued for 43 years. 
But the actual responsibility probably comes from the 1924 
Pueblo Land and Water Act, where it spells out that the Federal 
government would be held responsible for what happens on our 
reservations. And you know, that is why I said earlier about 
whatever it takes. If I am not here, my grandkids will probably 
be here.
    So I think it is, you know, it is time that this settlement 
is done with, so that we can continue with our lives.
    Mr. Heinrich. Thank you, Chairman, and thank you, 
Commissioner.
    Mr. Sanders, I have a quick question for you, and it also 
relates to some of the line of questioning from Mr. McClintock.
    I have a little bit of experience with regional water 
authorities because I used to chair the Albuquerque Bernalillo 
County Water Authority. And some of the debates over time when 
that was being created statutorily, over the fact that it 
seemed that basically that entity had to be able to create some 
of the infrastructure to serve that actually had eminent domain 
throughout the state, even though it represented a small 
portion of the state.
    How does the state view the regional water authority that 
would be created under this settlement? And is there any 
difference in standing between this regional water authority 
and others that, like the Albuquerque Bernalillo County Water 
Utility Authority, throughout the state?
    Mr. Sanders. Madame Chair, Congressman, I think it is an 
excellent question.
    First of all, it is going to require state legislation. And 
I was there testifying on the Albuquerque Bernalillo Water 
Authority as highly controversial. I think it is safe to say 
today that there is virtually no opposition to it any longer. 
And I would say just by nature being an apprehensive 
individual, I am surprised at the degree of success that it has 
had.
    Having said that, this authority within the domain would 
only occur once created for extensions, for purposes of serving 
county users. That would be an authority that I would think 
would probably--again, that is going to be up to the 
Legislature.
    Our recommendation would be to ensure that the county has 
the ability to, you know, to control eminent domain. I think 
that would satisfy the Congressman's kind of concern he has 
with eminent domain. Very unpopular. In fact, they have removed 
eminent domain from the authority of municipalities in the last 
session.
    So we are very cautious in the State of New Mexico. We are 
highly sensitive to that issue. I know I can say that and it 
might change, but certainly the sentiment today in New Mexico 
is to be extremely limited in our exercise and grants of 
authority of eminent domain.
    Mr. Heinrich. I would echo your comments, both in terms of 
the appropriate use of eminent domain, and as someone who was 
highly opposed to the creation of the water utility authority, 
and who ended up chairing it. And to speak as someone who today 
believes it is a very effective approach toward dealing with 
our water issues on a more regional basis.
    So thank you very much, Mr. Sanders. I am going to yield 
back the balance of my time, Chairwoman Napolitano, and thank 
you once again for holding this hearing.
    Mrs. Napolitano. Mr. McClintock.
    Mr. McClintock. Well, I have no further questions, Madame 
Chairwoman. I just ask if, by unanimous consent, since the 
opposition couldn't be here today, if we could submit written 
questions to them so they could respond to some of the 
testimony, to the opposition that is unable to be here today.
    Mrs. Napolitano. Certainly, if you get them in within the 
next 10 business days, as required.
    Mr. McClintock. Right.
    Mrs. Napolitano. OK.
    Mr. McClintock. Thank you.
    Mrs. Napolitano. Mr. Lujan.
    Mr. Lujan. Thank you again, Madame Chair. Just a few quick 
questions.
    Mr. Sanders, could you explain the difference between a 
junior and a senior water right holder?
    Mr. Sanders. Madame Chair, Congressman Lujan, in New 
Mexico, like all western states, we adopted the Prior 
Appropriation Doctrine of water right, water administration.
    That means, in the axiom in the West for all of us who grew 
up here, that first in time is first in right. That means, in 
this instance, the Pueblos who were here first, and have 
retained their ancestral homelands, have the earliest time and 
priority. And they have the right to first exercise of that 
right.
    Interesting enough, I have had conversations with probably 
some of your ancestors about when do they get to become Native 
Americans who qualify as not being indigenous people after 400 
years, because the priority dates go back so far. That is the 
same issue they have with the subsequent movement of the 
settlement of New Mexico, with the expansion of the United 
States. You know, their rights then became, the water supply 
got further limited by new uses by new settlement. So it has 
been a problem that has gone on for a long time.
    The seniors, though, have the right to curtail the juniors. 
So it would be the newest settlers, the newest people to the 
community, the people who most likely rely on domestic wells 
for their home water supply that would be curtailed. That is 
very significant, and it is a very almost disturbing kind of 
outcome of the draconian nature of the Prior Appropriation 
Doctrine.
    Mr. Lujan. And Mr. Sanders, along those lines, absent a 
settlement, could you describe what would happen to senior and 
junior water right holders if there was a call? And what the 
settlement is trying to do to protect all individuals in the 
Valley there?
    Mr. Sanders. Madame Chair, Congressman, this, the 
settlement--and we are talking about both settlements really, 
but significantly in the Aamodt settlement--is that there is, 
again, through the drought periods of the summer, there is just 
an inadequate supply of water.
    In order to supply that, in order to facilitate the 
irrigation by the senior water right holders, the Pueblos, they 
would be entitled to call against everyone junior, including 
the 1690 priority dates for some of the Acequias. That is a 
pretty early cut.
    That means all domestic use would likely be curtailed. 
Folks would have no, they would be unable to reside in their 
homes without going out and hauling water to their homes. The 
very situation we have tried to avoid, or create a solution to, 
for the Navajo nation. We would just be recreating the very 
problems we tried to solve with the Navajo nation, we are 
recreating them here in the Nambe, Pojoaque, and Tesuque 
Valley.
    Mr. Lujan. So if the settlement was adopted, would it 
protect non-Indian water users in the Valley?
    Mr. Sanders. Madame Chair, Congressman, yes, it would. And 
it also will equally protect--well, not equally protect, but 
provide enhanced protection, far more protection than they have 
today, for any individual who does not sign on the settlement, 
and does not want to be a part of the rural water authority 
pipeline.
    Mr. Lujan. Are there any communities within the Valley, 
Pojoaque Valley, Nambe Valley, Nambe is part of the Pojoaque 
Valley, the Tesuque Valley, are there any communities within 
the region that would not be affected or impacted by this 
settlement? That reside outside of where the water flows.
    Mr. Sanders. Madame Chair, Congressman, I believe the 
answer to that is no. What it does do, though, is the pipeline, 
when constructed, there will be areas it will not serve within 
the valley. And those folks who do sign on to the settlement 
and support the settlement, they will be protected as if they, 
they won't be required, there is no way they will ever be 
required to hook up the pipeline. And they will be treated as a 
settling party, and they will be entirely protected from prior 
administration, to my understanding.
    Mr. Lujan. Madame Chair, thank you very much. I yield back 
my time.
    Mrs. Napolitano. But these new junior water future 
customers, they would have to pay some money to be able to 
join, right?
    Mr. Sanders. Madame Chair, if they were not settling 
parties, the answer is yes.
    Mrs. Napolitano. Thank you. Mr. Heinrich? No more.
    Well, thank you for the testimony. I have had great 
interest in reading and listening, and having you answer some 
of the questions.
    It is really appalling that in this day and age, that there 
is such a water shortage in the Native American lands and that 
this government has not complied with the commitment made to 
the Native Americans.
    And I would like to ask Mr. Connor if, in any of these 
areas, is USGS looking at any aquifer storage? I realize that 
there is not much water to store. But when there are rains or 
possibility of including water recycling projects to be able to 
utilize that water and put it into aquifers, if possible. Is 
there anything being connected to that?
    Mr. Connor. With respect to pending settlements, I am not 
aware of specifically anywhere where USGS is helping with 
evaluations of groundwater management.
    I think in general, parties have relied on USGS reports in 
certain areas to help define. And both of these settlements I 
think really took shape once the full understanding of the 
water resources in the respective basins came about. That 
allowed parties the foundation to negotiate the settlement.
    So I think there has been some general reliance. I know in 
other water issues, USGS is helping to help, to define 
groundwater situations that might help resolve those issues. 
But there was another part to your question I was going to 
answer.
    Mrs. Napolitano. Well, that was water recycling.
    Mr. Connor. Water recycling. Not in these particular 
settlements. But I do know that a fundamental part of the 
Shivwits Band of the Paiute Indian Tribe of Utah Water Rights 
Settlement that was enacted in 2000 was a water recycling 
project that the City of St. George, Utah was putting in place, 
that was part of the overall resolution of water rights with 
the Shivwits Paiute tribe.
    So, it has historically been part of a settlement to help 
resolve issues in a particular basin.
    Mrs. Napolitano. And does the panel have any input on that?
    Mr. Dorame. Madame Chair, with permission from the Governor 
of Pojoaque, I would like to answer that by saying that they 
are pursuing wastewater management systems in the area so that 
they can reuse the water for economic purposes and farming. The 
Pueblo Tesuque also is looking toward that same venture with 
our non-Indian communities in the area like the Village of 
Tesuque, Rio en Medio, Chipodero. And we hope to begin those 
kinds of conversations with them.
    And I might add that some of these people that we are 
trying to help are in opposition to our settlement. But that 
doesn't deter us from the fact that we want to have clean water 
for everyone.
    Mrs. Napolitano. Excellent. Any help we can give in that 
regard, we would be happy to, the staff, myself.
    Yes, Commissioner.
    Mr. Connor. I was just going to add actually one or a 
couple of mutual benefits projects in the Taos settlement is an 
aquifer storage and recharge project. So that is part and 
parcel of the Taos settlement.
    Mrs. Napolitano. I am glad to hear that. There is that 
fourth treatment now rendering the water even pure enough to be 
able to inject into the aquifers, so it would be reused for 
consumption as pure water.
    I don't have any other questions. Any other statements? 
Yes, Mr. McClintock.
    Mr. McClintock. One more question, just to walk through the 
arrangement in the financing here.
    The settlement gives the tribe rights to a certain portion 
of the water, correct? That they essentially own those rights.
    The taxpayers of the United States kick in a sizable 
portion of the delivery system for that water, correct?
    If the Pueblo doesn't need all of the water that they have 
rights to, they can sell the surplus, correct? As conveyed 
through this taxpayer-financed water system. Do I understand 
that correctly?
    If the Pueblo has surplus water, what does the Pueblo do 
with that? It is up to your discretion, right?
    Mr. Dorame. That is correct.
    Mr. McClintock. OK. So they can sell that, am I correct?
    Mr. Dorame. Well, if a tribe chooses to do so.
    Mr. McClintock. Right.
    Mr. Dorame. I am just confused about the question.
    Mr. McClintock. So I guess--well, the question is, you are 
selling it. You are taking money in for it, but the taxpayer, 
who has financed the project, isn't getting it.
    Mr. Dorame. OK. In New Mexico, Indians pay taxes.
    Mr. McClintock. Right. So you pay tax from the profit.
    Mr. Dorame. We are part of that.
    Mr. McClintock. But I mean, you are taking--so the concern 
I am getting at is, is the tribe taking a significant profit by 
selling surplus water that the taxpayers have basically 
financed.
    Mr. Dorame. Yes, that is right. But we don't, we are not 
planning on selling the water. We are planning on holding those 
water rights for future use, for our children's children.
    Mr. McClintock. No, no, I am not suggesting selling the 
rights. But you have the right to the water. You don't need to 
use all that water in a single year. You sell the surplus.
    Mr. Dorame. I will let DL answer that.
    Mr. Sanders. Mr. Chairman, the way it would work is that I 
don't believe they will be diverting water, treating it, and 
then be selling it just because of the location of where the 
pipeline would be. Fundamentally, it is just not feasible to do 
that.
    The unused portion of water rights that they do own, 
though, would be made, might be made available on short-term 
leases, under New Mexico law, for purposes of facilitating 
other uses in the state. That is consistent with the prior 
provision doctrine.
    We don't just let water float on the rivers, we make 
beneficial use of it. So any water that they are entitled to 
that they are not using would not be treated and then sold, but 
it would be leased to other, other Pueblos, other citizens, 
cities.
    Mr. McClintock. And those other Pueblos, citizens, and 
cities would then be paying the Pueblo for that lease.
    Mr. Dorame. Mr. Chairman, I mean Madame Chair, Congressman, 
if I understand correctly, yes, I would charge them for it.
    Mr. McClintock. And again, that gets back to my concern 
that the taxpayers shouldn't be paying for it. The system 
should be financed by the users of the water in proportion to 
the use.
    Mr. Connor's response is essentially well, we have always 
done this. We have always done it this way.
    Mr. Connor. Well, it is a little bit more than we have 
always done it. With respect to the concern, I mean I sense a 
concern about whether we are constructing systems to deliver 
water which the Pueblos might use, decide to sell that water 
and not use it in those systems. That is not the case with the 
regional water system.
    I think there are marketing provisions in Aamodt not 
related to the 2,500 acre-feet of water that would be used for 
the regional water system.
    In the Taos settlement there is an opportunity to market 
water that is recognized in the settlement, pursuant to state 
law. There is also an opportunity to subcontract some of the 
San Juantamo project water that is going to be made available 
to the Pueblo, and that is one of the recognized benefits in 
the settlement.
    In the Taos situation there is not a large infrastructure 
project that is contemplated as part of that settlement to make 
use of that water. So it is recognized that here is an asset 
that has been reserved for well over 30 years that we are 
making available as part of this settlement, but not to 
construct facilities that may ultimately not be used.
    The funding that is available in the Taos settlement is for 
a series of smaller projects, like rehabilitation, wastewater 
facilities, et cetera. And those are the type of projects 
contemplated.
    Mrs. Napolitano. Mr. Lujan.
    Mr. Lujan. Madame Chair, I guess I am a little confused. 
Former Governor Dorame, Mr. Martinez, or Commissioner Montoya, 
would the water be used for people to drink?
    Mr. Dorame. Are you talking about treated water, 
Congressman? Or water that would replenish the aquifers in the 
water system? Would people drink that water? If it is clean, 
yes, I would think so.
    Mr. Lujan. If there is a water system that people hook up 
into that goes to their homes, that don't have access to water, 
they might use that to drink, to make their food, yes. To grow 
their crops in traditional cultural ways that they have done 
for centuries, for families. Would some of the water rights of 
the Acequia be able to use that for that purpose?
    Mr. Martinez. Madame Chair, Congressman Lujan, I think in 
the case of the ASR project, it is injected, taken out for 
irrigation. It does impact the groundwater, which may be used 
by some other mutual domestic water systems perhaps. That if 
they do, it would be no different than what they do today; take 
it out and treat it, and purify it, and use it again.
    Mr. Lujan. But the Acequias would allow people to grow 
crops for their families, as well?
    Mr. Martinez. Congressman, with the ASR project, that is 
the intent, is to recover water that maybe got transferred by 
the U.S. in the 1930s. But we will find a way to compensate for 
that, and this ASR project will do that.
    Mr. Lujan. Madame Chair, the reason I ask that question, I 
just want to be very clear here. What we are talking about with 
some of these people are, what happens if there is a drought, 
where there is a water call? They won't be able to drink, much 
less bathe, cook their food, provide for their families. 
Communities could disappear. Ways of living in a beautiful part 
of the country could be devastated.
    I just don't want us to forget, Madame Chair, that we are 
talking about people here and families. In some instances, land 
that was taken by the Federal government. And that is why I 
believe that sovereignty is something that is recognized as a 
trust by the Federal government. And I just don't want us to 
lose sight of that. Because there are still parts of New Mexico 
where they don't have running water, parts of the Navajo 
nation.
    I know that this isn't part of that, part of the state. But 
we are talking about people here. And I think that is why when, 
you know, we look across this great country of ours, and to see 
how we can support one another to get water where water is 
needed, in times of drought we go in to even help livestock to 
get them water or feed, so that they don't lose their assets.
    We are talking about people here, as well, Madame Chair. 
And I just really don't want to lose sight of that. People like 
Commissioner Montoya are people that I go to church with on 
Sunday, people that I see at the grocery store, at my nephews' 
and nieces' Little League games, people that I grew up with, 
that I respect very much. And I just don't want to lose sight 
of that.
    Thank you very much, Madame Chair.
    Mrs. Napolitano. Thank you, Mr. Lujan. Your comments have 
been very remindful of the piece of legislation that came 
before us on the Navajo Nation. I introduced into the record a 
drawing by some of the children who were asked where the water 
came from, and they drew a water truck. That was introduced 
into the record.
    So yes, in this day and age it is appalling that we still 
have those situations. And we need to work, the Federal 
government, our agencies that are now really diving into the 
issue, be cognizant of what has been ignored for generations, 
and do the best that we can for you.
    So with that, we thank you for your testimony. And thank 
you for hanging in there with us, Commissioner; I appreciate 
that. That concludes the Subcommittee's legislative hearing on 
H.R. 3254 and H.R. 3342.
    Thank you again for appearing, for traveling, for bearing 
with us this long hearing. And I prefer sometimes, when we 
don't have that many people, to ask questions to ensure that 
everybody gets an opportunity to really get down and ask 
appropriate questions that bring a lot more information to 
light.
    Your testimonies and expertise have really been very 
enlightening and helpful. Under Committee Rule 4[h], additional 
material for the record should be submitted within 10 business 
days after today's hearing. The cooperation of all the 
witnesses in replying promptly to any questions submitted to 
you in writing will be most greatly appreciated.
    So with that, this hearing is now adjourned.
    [Whereupon, at 4:37 p.m., the Subcommittee was adjourned.]

    [Additional material submitted for the record follows:]

    [A supplemental statement submitted for the record by Harry 
B. Montoya, Santa Fe County Commissioner, New Mexico, follows:]

 Supplemental Statement submitted for the record by Harry B. Montoya, 
         Santa Fe County Commissioner, New Mexico, on H.R. 3342

    Chairwoman Napolitano and Ranking Member McClintock, I appreciated 
the opportunity to appear before you at the hearing of H.R. 3342 held 
on September 9, 2009. I respectfully submit the following supplemental 
testimony addressing some of the aspects of the non-Pueblo portion of 
the Regional Water System that will be operated by Santa Fe County 
pursuant to the Aamodt Settlement Agreement. I also want to describe 
additional outreach efforts the County will be undertaking in the 
community to help complete settlement of this difficult dispute.
    I strongly agree with the view of Ranking Member McClintock 
articulated at the hearing that the water system should not be an 
``Indian-only'' system. Water service should be made available on a 
non-discriminatory basis to any County resident within the system's 
service area. I am confounded by the position of some non-Pueblo 
parties that would deprive other residents of the right to willingly 
connect. Under the settlement, residents who do not want to connect to 
the system may keep their domestic wells. Why shouldn't the wishes of 
other residents who do want to connect also be respected and 
accommodated?
    The position of the Pojoaque Basin Water Alliance is that no one 
will hook up, and therefore the County portion of the system should not 
be built. That position is not credible for a number of reasons. First, 
under the settlement new users in the valley will be required to hook-
up. Although the County has designated the Pojoaque Basin as a ``low-
growth'' area, the number of new users will add up over time.
    More significantly, I am convinced many existing water users will 
decide to connect. The settlement agreement contains financial 
incentives to make connection to the system desirable. For example, 
existing water users choosing to connect will not pay hook-up fees and 
will not be charged for water rights acquisitions. The County is 
acutely aware that the monthly cost of service must be affordable and 
will structure utility finances to keep customer rates down. 
Importantly, the system will offer a clean, reliable supply. Water 
sampling in the valley has shown a number of areas of poor or declining 
water quality. Over time and as existing wells begin to need 
replacement, I am certain that many residents will be glad the system 
is available to them.
    Criticism by the PBWA of the cost of the County portion of the 
system also misses the mark. All of the costs to design, engineer and 
construct the County system, including distribution lines, are included 
in the September 2008 Engineering Report and are reflected in the Cost-
Sharing and System Integration Agreement. For example, Table 5-5 of the 
Report shows more than $30 million in state and local pipeline costs to 
pay for distribution lines and for increasing the size of transmission 
lines to provide up to 1,500 acre-feet of capacity for the County water 
utility.
    It is important to note that 1,500 acre-feet is the maximum 
capacity of the County system and that subsection 101(d)(2) of the bill 
provides a mechanism to modify system size and capacity if the parties 
to the Cost-Sharing Agreement determine that a smaller capacity is 
appropriate to meet customer demand. Obviously any decision to modify 
system size and capacity must be made before the system is engineered 
and constructed. With assistance of a reputable engineering firm the 
County is in the process of analyzing customer demand scenarios. 
Because both the State and County will be investing millions of dollars 
in the County system, it is critical that the system be sized optimally 
to meet customer demand and the purposes of settlement.
    The last area I want to discuss is the vexing problem of achieving 
a settlement that has widespread community support. As I have 
testified, the settlement is a carefully constructed compromise--a 
product of serious give and take by parties desiring a better path than 
continual litigation. Under the settlement, existing non-Pueblo uses 
will be protected, far better than the most optimistic litigation 
outcome. At the hearing DL Sanders, the Chief Counsel for the New 
Mexico State Engineer, succinctly laid out the jeopardy facing junior 
non-Pueblo water users in the absence of settlement. He described the 
serious risk during summer months of curtailment of non-Pueblo ground 
and surface water users. Written submissions by the two largest non-
Pueblo surface water user groups also acknowledged that risk and 
emphasized the great benefit of settlement in protecting non-Pueblo 
water users. Nonetheless, any water users opposing the settlement will 
have the right to raise their objections with the federal court.
    I recognize that some of my non-Pueblo constituents continue to be 
dissatisfied with the settlement. Consequently, the County will be 
conducting a series of community outreach and settlement focus meetings 
in the coming months. The purpose of the meetings will be to hear 
public concerns and to provide information about the settlement. 
Although a number of community members oppose the settlement, no one 
has provided a viable alternative. For example, as I have discussed, 
the proposal by the PBWA to eliminate part of the water system is not 
constructive. Oftentimes it is easier to be a critic than it is to come 
up with real solutions. This is especially so in the context of 
settling the Aamodt case, where many decades of grievances have 
tortured our path.
    The settlement process has taken a long time and has encountered 
many obstacles, but the settling parties have continued to work hard, 
after years of good faith and painstaking negotiations, to arrive at 
something that will work. The settlement will achieve a fair and 
equitable resolution of the difficult and entrenched water disputes 
that have festered in our valley for so many years.
    In conclusion, I want to thank the Chairwoman and Ranking Member 
for your thoughtful questions and remarks at the hearing and for 
considering this supplemental statement. On behalf of Santa Fe County, 
I urge the Committee on Natural Resources to mark-up H.R. 3342 and to 
send this important legislation to the floor of the U.S. House of 
Representatives.
                                 ______
                                 
    [A statement submitted for the record by Governor George 
Rivera, Pueblo of Pojoaque, follows:]

     Statement submitted for the record by Governor George Rivera, 
                    Pueblo of Pojoaque on H.R. 3342

    This statement addresses the concern raised by Ranking Member Tom 
McClintock at the Legislative Hearing held by the Subcommittee on 
September 9, 2009, namely, why should United States citizens outside of 
the Pojoaque Basin pay for ``a local water settlement'' such as the 
proposed Aamodt settlement? The question deserves a response.
    The hearing concerned the Aamodt Litigation Settlement Act (H.R. 
3342), a comprehensive settlement of the Indian Water Rights Claims of 
the Pueblos of Nambe, Pojoaque, San Ildefonso and Tesuque (``the four 
Pueblos''). The proposed legislation would settle an issue that has 
plagued Congress since the ratification of the Treaty of Guadalupe 
Hidalgo in 1848. The proposed settlement would resolve the New Mexico 
v. Aamodt case, filed in 1966 and now the longest-standing Indian water 
litigation in the Federal court system.
    During the September 9, 2009 hearing, in a burst of alliterative 
fancy, the distinguished gentleman from California, Congressman Tom 
McClintock, persuasively asked why the people of Poughkeepsie and 
Pomona should pay for the water of the Pueblo of Pojoaque. The simple 
answer is that Congress should keep promises made through treaties and 
legislation. Congress ratified the Treaty of Peace, Friendship, Limits 
and Settlement, commonly referred to as the Treaty of Guadalupe 
Hidalgo, 1848. Congress, through successive and consistent acts after 
the Treaty of Guadalupe Hidalgo, has promised to recognize and protect 
the property rights of the Pueblos. In 1924, Congress admitted that it 
had failed to protect the property rights of the Pueblos. The Pueblo 
Lands Act of 1924 and the Pueblo Lands Act Amendments of 1933 were 
designed to correct the problem.
    Despite these efforts, Congress has not lived up to its promise and 
the Pueblos suffer from lack of a clean, stable source of water. The 
Four Pueblos, through consistent requests, have repeatedly petitioned 
Congress to do what it has promised to do. The House committees have 
heard these petitions for almost a century. H.R. 3342 goes a long way 
in meeting the obligations assumed by Congress and the American people. 
As for the people of Poughkeepsie and New York, they shed their blood 
in the Mexican War. Their sacrifice resulted in the land of the Pueblos 
being brought from the dominion of Mexico to the dominion of the United 
States.
    A review of the Congressional history surrounding the Pueblos of 
New Mexico should suffice to reawaken the institutional memory. By 
1846, the Pueblos were established on their ancestral homelands for 
approximately a thousand years. In 1846, the Pueblos were under the 
dominion of the Mexican government. At the same time, Mexico refused to 
recognize the annexation of Texas, formerly part of Mexico, by the 
United States. After hostilities broke out in April 1846, President 
James K. Polk sent a special message to Congress. In May 1846, the 
House and Senate, by very large majorities (174 to 14, and 40 to 2), 
voted 50,000 men and $10,000,000 to prosecute the war against Mexico. 
All of the United States joined in the war. Like most American 
businessmen, the shipbuilders of Poughkeepsie profited. The shipping 
industry turned from building and servicing whaling ships to building a 
schooner. The schooner M. Vassar was built in 1846 and immediately 
chartered by the government and sent to Vera Cruz with stores for the 
army. New York answered the call to arms and provided two regiments of 
volunteers for service in California and Mexico. U.S. soldiers occupied 
Santa Fe, New Mexico and established control over the territory, 
including the Pueblos. The country called the nation to war--the 
citizens responded.
    Ultimately, the war was successfully prosecuted and the Treaty of 
Guadalupe Hidalgo was signed. As the price to pay for the blood shed by 
the American soldiers, and for $15,000,000 paid by the United States to 
Mexico, the Mexican government ceded the lands of New Mexico (which 
included Arizona) and California and recognized the Rio Grande as the 
southern and western boundary of Texas. In Article VIII of the Treaty, 
the United States obligated itself to recognize and protect the 
property rights of the Pueblos. The Treaty was ratified by the Senate 
by a vote of 38 to 14 on March 10, 1848.
    Almost immediately upon ratification, the American government 
failed to protect the Pueblos' property rights. The territorial and 
federal courts declared that the Pueblo Indians were not to be 
protected by laws designed to protect wandering savage Indians. 
Encroachment upon the Pueblo lands was rampant. In New Mexico, lands 
without water were worthless. The Pueblos, located next to the 
invaluable Rio Grande, were subject to mass settlement by squatters and 
encroachment. The Pueblos were finally recognized as Indians deserving 
of federal protection by the United States Supreme Court in the case of 
U.S. v. Sandoval, 231 U.S. 28 (1913).
    After the Sandoval decision, titles to lands within the Pueblos 
were in chaos. The federal government had failed to protect the lands 
since 1848 and now no one knew who had clear title to those lands. The 
Pueblos, with the of the irrigable lands possessed by outsiders, were 
in dire straits. Congress decided to step in.
    The extent of the Pueblos' problem is reflected in Exhibit A, a 
Santa Fe New Mexican December 5, 1922 reprint of an article appearing 
in The New Republic, ``The Death of the Pueblos, Tesuques Starving.'' 
Misappropriation of water was identified as the major cause of the 
Pueblos' rapid deterioration.
    By 1923, the word reached Congress that because of the scarcity of 
water, the Four Pueblos involved in the current legislation were 
starving and that their thousand-year-old Pueblo culture was in danger 
of extinction.

        Dear Mr. King:

        Early last fall the Government was asked to provide rations for 
        the Pueblos of Tesuque and San Ildefonso. Last week we heard 
        that the stock of San Ildefsonso was dying.''

        We learned that there was no more feed in the pueblos, that 
        three horses had starved to death, that the cattle were in 
        very, very poor condition...

        The situation at Tesuque yis worse. They have a little hay 
        left, but only because the council decided to feed the work 
        teams and let the others starve. They have lost three horses 
        and do not know how many cattle...

        It is, however, the human situation at Tesuque that has become 
        acute. The Government rations are delivered to the Indians at 
        Espanola. It is a 48-mile round trip from Tesuque over heavy 
        sandy roads, and the undersized, weakened Indian horses cannot 
        haul over 500 pounds at a trip. In the cold weather we are now 
        having it is a terrible drive for the men, as they are 
        undernourished and poorly clad. But the most pathetic and 
        terrible thing is to feel that their morale is breaking. The 
        lieutenant governor asserted proudly, ``Yes, we're short of 
        grub, but we're not begging.'' And they are not begging... 
        ``Yes; we like to have a garden and our own vegetables. Yes; 
        our women can dry them. But what's the use. We don't have no 
        water. We plant them, but in June they all dry up and our work 
        and seed is all wasted. There isn't any use unless we get the 
        water. Our patent says we have a right to the water for four 
        days a week, but last summer we didn't have it at all, not even 
        for one day. There isn't any use doing anything unless we can 
        get the water.''

        February 5, 1923 Letter from Margaret McKittrick, New Mexico 
        Association of Indian Affairs, quoted in Hearings before 
        Committee on Indian Affairs, House of Representatives, 67th 
        Congress, 232-33 (1923).

    Coast-to-coast, the American people found the Pueblo Indians to be 
``exploited, pauperized and humiliated.'' As Theodore Roosevelt stated, 
``The Pueblos are one of America's most priceless possessions. Let us 
cherish them tenderly and proudly!'' Exhibit B, Santa Fe New Mexican, 
February 17, 1923.
    Citing the moral duty to rectify the Congressional neglect that led 
to the encroachment of the Pueblos' land and water, Congress passed the 
Pueblo Lands Act of 1924. The Pueblo Lands Act of 1924 provided that 
the Pueblos were to receive compensation for their damages as a result 
of the United States' failure to seasonably protect Pueblo lands and 
water. Money damages, though, was not the ultimate goal. Section 19 of 
the Pueblo Lands Act of 1924 states:

        That all sums of money which may hereafter be appropriated by 
        the Congress of the United States for the purpose of paying in 
        whole or in part any liability found or decreed under this Act 
        from the United States to any pueblo or to any of the Indians 
        of any pueblo, shall be paid over to the Bureau of Indian 
        Affairs, which Bureau, under the direction of the Secretary of 
        the Interior, shall use such moneys at such times and in such 
        amounts as may seem wise and proper for the purpose of the 
        purchase of lands and water rights to replace those which have 
        been lost to said pueblo or to said Indians, or for purchase or 
        construction of reservoirs, irrigation works, or the making of 
        other permanent improvements upon, or for the benefit of lands 
        held by said pueblo or said Indians.

        43 Stat. 636, 642 (emphasis added).

    Despite the lofty goals of the Pueblo Lands Act of 1924, the goal 
of replacing the lands and water rights has never been realized.
    The supply of water in the Rio Grande and Colorado River is 
limited. Since 1924, the federal government, who has recognized its 
duty to protect the Pueblos' land and water has looked the other way. 
When Colorado, New Mexico and Texas agreed in the Rio Grande Compact to 
allocate the waters of the Rio Grande to their respective states it 
appeared that the water supply for the Indian tribes might be limited 
by that Compact. The federal government saw the danger and made no 
demand that Indian rights be protected.
    The Pueblos have never waived their right to seek to enforce the 
United States' duty to secure and protect replacement land and water 
rights. Recognizing their Congressional predecessors' failed attempts 
to protect the Pueblos' water rights, the inability of 42 years (at the 
time) of litigation to rectify the water problem, and the necessity of 
Congressional action, the New Mexico delegation has continually 
supported the efforts of the local governments to find a sensible, fair 
solution to guarantee a clean, continual, guaranteed source of water 
for all the Pueblos and their non-Indian neighbors.
    During the 110th Congress, while acutely cognizant of the long and 
fractious history of Pueblo water rights in New Mexico and the 
responsibilities of the federal government, New Mexico Senators Peter 
Domenici and Jeff Bingaman introduced S.3381, a bill similar to H.R. 
3342.
    Senator Peter Domenici's September 11, 2008 testimony before the 
Senate Indian Affairs Committee deserves to be heard again, and again, 
by any Member of Congress considering such legislation. The statement 
reflects the frustration over the lack of action on the Pueblos' water 
settlements and the advice of one of the most knowledgeable and long-
standing Members of Congress.

        Sen. Domenici: Well let me say and let me say this especially 
        to our Chairman... I say this to you and our Chairman. Mr. 
        Chairman, I believe these settlements ought to be approved by 
        our committee, and I'm going to ask that we do it in spite of 
        the opposition of the Administration... I don't believe we're 
        going to be able to negotiate anything for a lesser amount of 
        money...

        I do believe the position of the federal government that they 
        will not comment positively about the settlement costs is 
        wrong, in this case, and it's not going to be getting any 
        better.

        More cases are coming and were not going to, nobody up here is 
        going to sit up here and sit around and take OMB's evaluations 
        of these things when they know less about what's going on than 
        most of us. I can tell you, you can't say it, but I can, I've 
        had to go to the President on items of significance for this 
        country when OMB didn't care what the situation was and it 
        didn't take the President five minutes to decide they were 
        wrong...

        But I tell you they're making some bad mistakes of judgment in 
        their recommendations and this is one of them.

    I thank you, Mr. Chairman.
                                 ______
                                 
    [A statement submitted for the record by the Pojoaque Basin 
Water Alliance follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [A letter submitted for the record by The Honorable Bill 
Richardson, Governor, State of New Mexico, follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    The documents listed below have been retained in the 
Committee's official files:

      D'Antonio, John R., Jr., P.E., New Mexico State 
Engineer, Interstate Stream Commission Secretary, Letter to 
Congressmen Lujan, Heinrich, and Teague submitted for the 
record
      ``A Memorial Requesting Continued Funding for 
Native American Water Rights Settlements'' submitted for the 
record
      Montoya, Hon. Harry B., Commissioner of District 
1, Santa Fe County Commission, Santa Fe, New Mexico, Letter to 
Hon. Ben Ray Lujan submitted for the record
      Rio de Tesuque Acequia Association, Letter to 
Senators Bingaman and Udall, and Congressmen Lujan, Teague, and 
Heinrich submitted for the record
      Pojoaque Valley Irrigation District, Letter to 
Lujan, Teague, and Heinrich submitted for the record
      Rivera, Governor George, Pueblo of Pojoaque, 
Letter to Congressman Ben Ray Lujan submitted for the record

                                 
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